1 cri.appln.5566-10 mgn IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.5566 of 2010 The State of Maharashtra ..Applicant Vs. 1. Ashok Keshav Thakur and ors. ..Respondents Dr. F. R. Shaikh, APP for applicant-State. Mr. Shirish Gupte, Sr. Advocate with Mr. Prakash Naik for respondent no. 4. Mr. A.P. Mundargi, Sr. Advocate with Mr. Girish Kulkarni for respondent no.6. CORAM: B. H. MARLAPALLE & U.D.SALVI, JJ. DATED: 15th March, 2011 P.C. 1. Heard Dr. Shaikh, the learned A.P.P., for the applicant-State. This is an application seeking leave to appeal under Section 378(3) of Cr.P.C., against the order of acquittal passed in Special Case No.72 of 1989 and against accused Nos.2 to 7. 2. In Special Case No.72 of 1989, 7 accused came to be tried for the offences punishable under Section 120-B, 466, 467, 468, 471 and 420 of I.P.C. read with Section 5(i)(d) and 5(2) of the Prevention of Corruption 2 cri.appln.5566-10 Act, 1947 read with Section 109 of I.P.C. 3. As per the prosecution case accused No.5 submitted an application on 25th September, 1982 (Exhibit 98) for remeasurement of the area in C.T.S. No.C/315 and the said application was received by the City Survey office on 5th October, 1982. On 20th October, 1982 accused No.1 who was the Maintenance Surveyor measured C.T.S. No.C/315, Bandra and calculated the area by Vasalewar method to 965.8 sq. meters. The same correction was placed before accused No.2 on 21st October, 1982 and it was approved by him. Accused No.3 approved the same correction on 22nd October, 1982. Accused Nos. 4 and 5 submitted the building construction proposal on the basis of the plot area 965.8 sq. meters. It is the case of the prosecution that the plan was sanctioned, but actual area of the plot was 837.8 sq. meters and thus accused Nos. 4 to 7 had conspired along with accused Nos. 1 to 3 to create false record and the public servants accused Nos. 1 to 3 were the beneficiaries of gratification offered by accused Nos. 4 to 7. The learned Special Judge, on considering the evidence placed before him by the investigation, held that accused nos.1 and 3 were guilty for the charges under Sections 466, 467 and 468 of IPC, but accused no.1 had died during the pendency of the trial. Consequently, accused no.3 has been convicted for the offences punishable under Sections 466, 467, 468 of IPC and sentenced to suffer SI for three months on each 3 cri.appln.5566-10 count and to pay a fine of Rs.2000/- each and in default to suffer SI for three months each. Accused no.3 has been acquitted for the offences punishable under Sections 120-B, 471, 477-A, 420 of IPC as well as Section 5(i)(d) read with Section 5(2) of Prevention of Corruption Act read with Section 109 of IPC. 4. The prosecution examined in all nine witnesses and PW 9 – Shri Martin Miranda was the IO in the FIR registered on 27/1/1986. PW 1 – Shri Abdul Ismail was also the IO, who had taken over the investigation from PW 9. The prosecution mainly relied upon the evidence of PW 2 – Shri Shankar Umadi who was, at the relevant time i.e. between the years 1980 to 1985, holding the post of Executive Engineer (Building Proposals) at Bandra of H and K Ward of the Municipal Corporation of Greater Mumbai and PW 5 – Shri Prabhakar K. Gawas, who was serving as the Accounts Officer in the City Survey Office No.3. Accused No.1 was the person who had undertaken the measurement on the basis of the application submitted by accused no.4 (Exh. 98). Accused No.2 – Shri A.K. Thakur was the Sheristedar and accused no.3 – Shri R.S. Kanthe was the City Survey Officer. It has come in the evidence of PW 2 – Shri Shankar Umadi that the proposal submitted by accused no.5 on 11/10/1982 in respect of the proposed development of Plot No.39 of CTS No.C/315 at Bandra was processed and the plot area was shown as 1003.22 sq.mtrs. as against the 4 cri.appln.5566-10 proposed area of construction of 972.29 sq.mtrs. He stated that P.R. Card was not produced along with the proposal, but accused no.4 – Ramesh Pai produced the same on 5/11/1982 and on the same day the draft IOD was signed by him for an area of 965.8 sq.mtrs. (Exh. 122). The work of construction started and completed upto the plinth level was also inspected and the CC was issued on 15/2/1983 which he had signed and the Occupation Certificate was issued on 9/1/1984, signed by Shri Butala, Assistant Engineer. It has also come in the evidence of the prosecution that the said plot was re-measured on 6/4/1984 and the plot area was found to be 845.2 sq.mtrs. (Exh.111). The evidence of the prosecution and as has been rightly appreciated by the trial court, did not support the charge of criminal conspiracy between accused nos. 1 to 3 on one hand and accused nos.4 to 7 on the other. At the same time, there was no material placed on record to support the charge of illegal gratification, either acceptance or offer. 5. Dr. Shaikh, the learned APP, submitted before us that the reasoning set out by the trial court for the acquittal of accused no.2 is unsustainable and just because he was not a technical person did not mean that his culpability along with accused nos.1 and 3 could not be accepted. Dr. Shaikh may be right in his submission, but we have noticed that accused no.2 is now about 85 years of age and if leave to appeal is granted 5 cri.appln.5566-10 against him, the acquittal appeal is not likely to be listed for final hearing at least for more than five years. We, therefore, do not find any reason to reconsider the case of the prosecution against accused no.2. Hence, on over all assessment of the evidence as adduced by the prosecution and the reasoning set out by the trial court in the order of acquittal against accused nos.2 and 4 to 7, we are satisfied that the acquittal order does not suffer from any infirmity and the reasoning set out in support of the order of acquittal does not call for reconsideration at our hands. 6. Hence, leave to appeal is refused and the application is rejected. (U.D.SALVI, J.) (B. H. MARLAPALLE, J.)