1 criap-1559.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 1559 OF 2010 The State of Maharashtra applicant-orig. complainant versus Ramdas Trimbak Dukare respondent-original accused ----- Shri S.G. Nandedkar, A. P. P. for the applicant. Shri C.P.Sengaonkar, Adv. for the respondent. ------ Coram : Shrihari P. Davare, J. Date : 24th March, 2011. P. C. 1. Heard learned counsel for the parties. 2. This is an application preferred by the applicant-State, challenging the judgment and order dated 30.11.2009 rendered by the learned Special Judge (P.C. Act), Aurangabad, in Special Case No. 12 of 2005, thereby acquitting the present respondent (original accused) for the offences punishable under Sections 7 and 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act. 2 criap-1559.10 3. It is alleged that PW-2 Bhagchand Laxman Alhat (complainant) had lodged a complaint against the accused with Anti Corruption Bureau ("ACB" for short) office on 17.8.2002, stating that he has ancestral agricultural lands bearing Gat Nos. 260, 272 and 291 situated at village Mahalgaon, out of which, 3 hectors and 6 Are land was allotted to the share of his brother Roopchand. It is the case of the complainant Bhagchand that he had constructed houses in the village, as well as in the field, for his brother Roopchand, in lieu whereof, Roopchand had agreed to give 75 Are land out of Gat No.291 to the complainant Bhagchand. Hence, Roopchand submitted an application on 5.6.2001 to the accused, who was working as Talathi, for effecting mutation. Accordingly, on 9.7.2001, Roopchand met accused and asked him about the mutation, whereupon the accused had demanded Rs. 250/= from him for bond and writing charges. Thereafter, the complainant and his brother Roopachand met the accused for effecting mutation, but the accused did not effect the mutation 3 criap-1559.10 and, therefore, on 4.8.2002, they went to the residence of the accused at Vaijapur and asked him to carry out mutation. At that time, accused gave the complainant and his brother, bond paper of Rs.100/=, statement, newspaper publication, 7/12 extract, form No. 8-A, partition annexure under Section 85 (1) in duplicate, panchanama etc. and asked them to comply with the aforesaid documents and stated that thereafter he would get the mutation effected, and demand Rs.2000/- for doing said work. However, it is alleged that the complainant was unwilling to give money, but agreed to give, under constraint. Accordingly, on 16.8.2002, the complainant met the accused at his residence and handed over the said documents to him and at that time, accused asked him whether he brought Rs.2000/=, whereupon, complainant replied that he was in trouble in collecting the amount and had brought only Rs.600/=. Thereupon, accused told the complainant to give Rs.500/= and further asked him to bring balance amount of Rs. 1500/= on 18.8.2002, i.e. Sunday, between 10.00 a.m. to 12.00 noon at Mahalgaon Bus stop. It is alleged that accused further told 4 criap-1559.10 the complainant that after receiving the said amount, he would get the mutation effected. Accordingly, the complainant gave Rs. 500/= to the accused as the work was withheld and thereafter approached to the ACB office, allegedly, and lodged the complaint. 4. Pursuant to the said complaint, necessary formalities were followed, panch was called, pre-trap panchanama was prepared, anthracine powder was applied to the currency notes and trap was laid, wherein accused was caught, while accepting the bribe amount and thereafter, alleged spot panchanama was prepared. Investigation was carried out and charge sheet was filed in the court, and charge was framed against the accused who denied the charges levelled against him and claimed to be tried. Defence of the accused is that prior to the incident he had effected mutation of the name of the complainant and his brother in the record of rights beariang ME No.2976 dated 6.1.2000. The complainant had again approached him to effect mutation of his name and name of 5 criap-1559.10 his brother in the record of rights on the basis of the document of partition, whereupon he informed the complainant that such mutation cannot be effected, because the partition deed is required to be registered. The complainant insisted the accused to effect mutation, but he refused and, therefore, he has been implicated in the case, falsely. 5. To substantiate the charges levelled against the accused, prosecution has, in all, examined four witnesses, namely; PW-1 Dr. Bharat Khandu Kadam Sanctioning Authority. PW-2 Bhagchand Laxman Alhat Complainant. PW-3 Mukta Mhaske Panch witness. PW-4 Rameshwar Thorat, Police Inspector and Investigating Officer. 6. As regards sanction, it is settled principle of law that, it is not the empty formality and it has to be issued after due application of mind. In the said context, PW-1 Dr. Bharat Kadam has admitted in his deposition that his predecessor in office, Smt. 6 criap-1559.10 Lavangare, was entrusted with the file of proposed prosecution against the accused under the Prevention of Corruption Act and she had refused to accord sanction and said refusal was approved by the District Collector, by an order and proposal dated 12.8.2003. PW-1 Dr. Kadam also admitted that thereafter, he accorded sanction on 7.5.2005, as subsequently, letter was received from the office of the State Govt. to accord the sanction for prosecution against the accused. He further admitted that accord of sanction by him would amount to review of the earlier order passed by his predecessor and that the same cannot be done without permission of the superior authority i.e. the Collector. He also admitted that the directions were issued by the Desk Officer( Revenue and Forest Department) to the District Collector, Aurangabad, to accord sanction and documents to that effect are produced on record, at Exhs. 56 to 58. In view of the said position, learned trial court observed that the sanction order at Exh. 7 was issued under compulsion or constraint of the State and it was issued by PW-1 without application of mind, and 7 criap-1559.10 consequently; the trial court held that the said sanction is illegal and invalid and thus, the basis of the prosecution case itself is weak, and therefore, the said finding cannot be faulted with. 7. On considering evidence of complainant PW-2 Bhagchand and PW 3 Mukta Mhaske, Panch witness, the trial court observed that the evidence of these two witnesses is contradictory to each other and the version of complainant is not supported or corroborated by any other evidence on record, to hold that the accused demanded bribe from the complainant on 4.8.2002 or 16.8.2002, or there was an agreement between PW-2 complainant and accused to pay and accept bribe money on 18.8.2002. It is further observed that when the earlier demand of bribe itself is not established by the prosecution beyond reasonable doubt, then further case of the prosecution regarding alleged demand of bribe, also fails. It is also observed that it is well settled position of law that demand of bribe is the foundation in the case under 8 criap-1559.10 Prevention of Corruption Act, and if the same is not proved, rest of the prosecution case, in respect of money allegedly demanded by the accused on 18.2.2002, is required to be read with great caution and circumspection. 8. On the face of the aforesaid observations, it is pertinent to note the admission given by PW-3 Mukta Mhase, who is the panch witness. PW-3 Mukta deposed that an action may be taken against her, if she does not depose as per the facts stated in the spot panchanama and the said admission speaks volume for itself, and considering the same, apparently; there is no flaw in the observations made by the trial court in respect of depositions of PW-2 and PW-3. 9. Besides that, it appears that the learned trial court also considered the aspect of motive and observed that it is clear that the complainant was aware of the fact that the accused was not 9 criap-1559.10 competent, or had no capacity to show any favour to him for effecting mutation on the basis of an unregistered document, and therefore, it is highly improbable that the accused would demand money from the complainant, and consequently; the learned trial judge came to the conclusion that the prosecution failed to prove the motive in respect of alleged illegal gratification of bribe, and the said reasoning cannot be faulted with. 10. Moreover, the accused also examined one Abdul Haq Maheboob as Defence Witness No.1, who apparently supports the defence of the accused and his testimony has not been dislodged in the cross examination. 11. In the circumstances, the view adopted by the learned trial court, while acquitting the accused, after assessing and scrutinizing the evidence on record, is a possible view and same does not appear to be perverse. Further, the reasoning given by 10 criap-1559.10 the trial court for acquitting the accused, of the charges levelled against him, also cannot be faulted with, and hence, no interference therein is warranted, in the appellate jurisdiction and, therefore, present application deserves to be rejected. 12. In the result, present application stands dismissed. Leave to file appeal is refused. Record and proceedings be sent back to the concerned court. pnd/criap-1559.10 (Shrihari P. Davare, J.)