1 criap-4617.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.4617 OF 2010 The State of Maharashtra applicant vs Madhav Shankar Bhise respondent ---- Smt. Y.M. Kshirsagar, A.P.P. for the applicant. Smt. Sadhna S. Jadhav Adv. for the respondent. Coram : Shrihari P. Davare, J. Date : 5th March, 2011. P. C. 01. Heard learned Counsel for the parties. 02. This is an application preferred by the applicant-State, seeking leave to file appeal, challenging the judgment and order dated 2.8.2010, rendered by the learned Special Judge, Latur, in Special Case (ACB) No.2/2006, thereby acquitting the respondent- original accused, of the offences punishable under Sections 7 and 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2 criap-4617.10 03. I have perused the contents of the judgment, and also assessed and scrutinized the evidence adduced and produced by the parties, as well as heard the submissions advanced by the learned counsel for the parties, at length. 04. The respondent-original accused was serving as clerk in Accounts Section, Municipal Council, Latur, at the relevant time i.e. in July 2005, and complainant Bhausaheb was supervising on the work of one Baloba Labour Cooperative Society Limited, Chikurda. It is alleged that the accused demanded and accepted an amount of Rs. 10,000/= as gratification from the complainant for issuing cheque for Rs.1,93,106 (Exh.70) in respect of payment towards the work of construction of gutter and tar road running from ring road, Shani Mandir to the house of Abasaheb Patil, which was allotted by the Municipality, Latur, to the complainant. 05. To substantiate the charges levelled against the accused, prosecution has examined inasmuch as six witnesses, namely, 3 criap-4617.10 PW-1 Bhausaheb Daulatrao Deshmukh Complainant. PW-2 Sandeep Mukundrao Dhondge Panch PW-3 Bhagwan Kedari Lokhande Another panch PW-4 Harischandra Chincholkar Clerk in Accounts Section of the Municipality, Latur PW-5 Tryambak Damodhar Kasar Then Chief Officer, Municipality, Latur and Sanctioning Authority. PW-6 API Suryakant Patil Investigating Officer. 06. After assessing and scrutinizing the evidence of PW-1 Complainant Bhausaheb Deshmukh and PW-2 Sandeep Dhondge, it appears that there is variance between the said two testimonies in respect of the alleged demand and payment of the amount of Rs. 10,000/=, towards gratification. PW-1 Bhausaheb stated in his cross examination that he told the accused to give the cheque, as many days had lapsed, and further told that he brought the money with interest at the rate of 10 per cent, as well as he told the accused to take the amount and to give the cheque, but the accused told him to keep the amount on the cot, and accordingly, he kept the amount on the cot, by taking out the same from his shirt pocket. 4 criap-4617.10 Thereafter, the accused told the complainant that he will give the cheque within 2 days. However, panch witness Sandeep stated in his cross examination that he himself and complainant went inside the house of the accused and sat on the chair and complainant asked the accused as to what happened about the cheque and that the said cheque is still not received, and thereupon the accused asked the complainant whether he brought money and the complainant told that he brought the amount with 10% interest and took out the same from his right side shirt pocket and gave the same to the accused. He again stated that when the complainant took the amount from his shirt pocket for being given to the accused, the accused told him to keep the said amount on the Diwan (cot), and accordingly, complainant kept the amount on the cot and came out of the house of the accused and gave signal to the raiding party. He then stated that the accused kept the said amount beneath the cot. Thus, testimonies of complainant PW-1 Bhausaheb and panch PW-2 Sandeep differ with each other on the point of demand and acceptance of the amount of gratification by the accused and the learned trial court, after observing rightly in respect of the said testimonies, came to the conclusion that there is variance between the said two testimonies. 5 criap-4617.10 07. The accused has taken a specific defence since beginning that one Netaji Raghunath Deshmukh falsely implicated him in this case and he has not accepted any bribe amount. It also the contention of the accused that said Netaji Deshmukh was doing the business of contractorship through the said Baloba Labour Cooperative Society Limited, Chikurda, with the Municipal Council, Latur, and he was initially councilor and then became President of the Municipal Council. It is specifically pleaded by the accused that one Dr. Janardhan Waghmare, who was directly elected as President from public, was a member of the Nationalist Congress Party, whereas said Netaji Deshmukh was a member of the Congress Party, and the said President Mr. Waghmare was not corrupt, and was not allowing to do any corruption in the Municipality and he himself (accused) was also not ready to give the cheque to the said society, because the work done by the society was not proper, and accused was not the person who was to issue the cheque, since the cheque was to be signed by the President of the Municipality, and as such, there was dispute between Mr. Kokate, the chairman of the said society and the accused, and since the accused was faithful servant of the then President, he was implicated in the present case, falsely. 6 criap-4617.10 08. The accused need not establish his defence beyond reasonable doubt, but he has to plead the same, on the basis of preponderance of probability. After assessing and analysing the evidence on record, the learned trial court has observed that the accused has established his defence on preponderance of probability, and apparently, the reasoning adopted therefor cannot be faulted with. 09. Moreover as regards accord of sanction, considering the evidence of PW-5 Tryambak Kasar, the then Chief Officer, Municipal Council, Latur, and the Sanctioning Authority, and also considering various judgments of the Hon'ble Supreme Court, the learned Trial Court observed that the Sanctioning Authority (PW-5), has not applied its mind and accorded the sanction in routine course, and considering the admissions given by PW-5 Tryambak Kasar in his testimony, that he cannot say whether he had given dictation of the sanction order, or whether he had discussed the matter with Dr. Janardhan Waghmare as to why he had not signed the cheque, and also stated that he did not personally ascertain the amount of Rs.1,90,000/- on the cheque which was to be paid to said Baloba Labour Cooperative Society Limited, Chikurda. The observations made and conclusions drawn 7 criap-4617.10 by the learned trial court that PW-5 Tryambak Kasar had issued the sanction mechanically and without applying his mind, cannot be faulted with. 10. In the circumstances, the view adopted by the learned trial court, after scrutinizing and assessing the evidence on record, while acquitting the accused for the charges levelled against him, is a possible view to be adopted and same does not appear to be perverse, and therefore, no interference therein, is called for, in the appellate jurisdiction, and hence, present application seeking leave to file appeal, deserves to be rejected. 11. In the result, present application, which is sans merits, stands rejected. Leave to file appeal is refused. Record and Proceedings be sent back to the concerned court. pnd/criap-4617.10 (Shrihari P. Davare, J.)