1 criap1962.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, BENCH AT AURANGABAD CRIMINAL APPLICATION NO.1962 OF 2010 The State of Maharashtra applicant-orig. complainant. versus Harischandra Gahininath Lohakare respondent-accused --------- Shri V.G. Shelke, A.P.P. for the applicant-State. Shri S.J. Salgare, Advocate, h/f Smt. S.S. JadhaV. -------- Coram : Shrihari P. Davare, J. Date : 7th April, 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 12.2.2010 passed by the learned Special Judge, Osmanabad, in Special Case No.13 of 2008, for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 03. I have perused the impugned judgment, and also the record and proceedings, with the assistance of learned counsel for the parties. 2 criap1962.10 04. Briefly stated, the respondent herein (original accused), who was talathi at village Govindpur, Taluka Kallam, at the relevant time, was charged with accusation of having accepted bribe of Rs.300/- from complainant Mahadeo Eknath Hinge, for taking entry of bore-well in the 7x12 extract of the land belonging to his father-in-law. 05. To substantiate the charges levelled against the accused, the prosecution has examined inasmuch as four witnesses, namely, : PW-1 Mahadeo Eknath Hinge Complainant. PW-2 Hanumant Kalappa Birasdar Panch PW-3 Prakash Baburao Khapale Sub Divisional Officer, and sanctioning authority. PW-4 Kisan Laxman Najan Police Inspector, and the Investigating Officer. Accused also examined one Abbas Munoriddn Kazi, as defence witness. 07. As regards sanction, learned trial judge assessed the evidence on record, and came to the conclusion that PW-3 Prakash Khapale had not accorded sanction, after application of mind and after satisfying himself that case for sanction was made out constituting the offence. In the said context, learned trial judge observed that unless the consent is given by the Revenue Circle Inspector, mutation entry is not taken in the register and unless mutation is sanctioned, talathi is not entitled to take entry in 3 criap1962.10 the 7x12 extract. Moreover, xerox copy of the application filed by father-in-law of the complainant (Exh.34) was shown to PW-3 Prakash Khaple and he agreed that there is no mention of survey number in it and unless survey number is mentioned in the application, no action could be taken on said application, and the aforesaid observations are based upon the statement/admission given by PW-3 in the cross examination, which are material. 08. Moreover, it is also observed by the learned trial judge in paragraph 13 of the impugned judgment, that there is no explanation given by the sanctioning authority as to whether the original papers were received by him, as the Superintendent of Police (ACB) had sent only the xerox copies of the investigation papers to him. It is also observed by the learned trial judge that sanction order (Exh.29) does not refer to any specific documents with their description as to how the sanctioning authority came to the conclusion that the offence under Section 7 of the Prevention of Corruption Act was committed by the accused. It is further observed that there was no occasion for the sanctioning authority to peruse the original investigation papers, as the Superintendent of Police (ACB) had sent only the xerox copies of the investigation papers. Hence, learned judge further observed that since the sanctioning authority was not aware of the actual position as regards the original investigation papers, it can safely be inferred that when the sanctioning authority perused the copies of the investigation 4 criap1962.10 papers, it was not aware whether those were the original papers. Consequently, it was concluded by the learned trial judge that the sanctioning authority merely signed the proforma of the sanction order which was sent to it and the mere denial by PW-3, the sanctioning authority, in that respect, in the cross examination, does not inspire confidence. The said observations made and conclusion drawn by the trial court, which are based upon assessment and scrutiny of the evidence on record, cannot be faulted with and the very sanction order (Exh.29) comes under the doldrums. 09. So far as the aspect of demand is concerned, it appears that the first demand of Rs.500.00 was allegedly made by the accused on 20.4.2008 and it was allegedly negotiated on second time, on 20.5.2008, to Rs.300.00, and therefore, question arises when the alleged trap was laid on 22.5.2008, how the accused again demanded bribe amount of Rs.500/= and accepted only Rs.300/= at the time of trap, and no explanation has been put forth by the prosecution, in that respect. 10. Moreover, apparently, there is variance between the testimonies of complainant PW-1 Mahadeo Eknath Hinge, and panch PW-2 Hanumant Kalappa Birasdar, in respect of demand and acceptance of the amount of gratification. Besides, the accused has put forth his defence in the cross examination of the prosecution witnesses, through his statement under Section 313 of the Code of Criminal Procedure, and 5 criap1962.10 also examined one Abbas Kazi, as defence witness. Defence put forth by the accused is that, at the relevant time, in addition to him, there were other persons, such as his assistant, agriculturists, present in his office. He explained to the complainant that panchanama will have to be prepared, by actually visiting the site. Thereafter, he took out one paper from his cupboard and started writing draft of the contents of the panchanama thereon, and at that time, the complainant put money in left side pocket of his shirt. The accused refused to accept the said amount and requested the complainant to take back the said amount, then the complainant took back the amount and kept the same in his own pocket. Then, accused completed the work of writing panchanama and when he stood up for the purpose of keeping the said panchanama in the cupboard which was on his backside, taking the benefit of the said position and that the accused was not attentive, the complainant put the said amount of gratification on the carpet and when the accused sat down on the carpet, he did not notice that the said amount was kept under his thigh, and when he again stood up for locking the cupboard, complainant went outside, thereafter raiding party arrived at the spot. 11. Pertinently, the prosecution has not seized the said carpet on which the amount of gratification was kept by the complainant, and no explanation in that respect, is given by prosecution. Thus, the accused has probabilized his defence, through cross examination of the prosecution witnesses, his statement under Section 313 of Code of 6 criap1962.10 Criminal Procedure, and also by examining defence witness Abbas Kazi, whose presence in the office of the accused, at the relevant time, is not denied by the prosecution. 12. Thus, having the comprehensive view of the matter, the learned trial court has observed that there are deformities and infirmities in the case of the prosecution, and that the testimonies of the prosecution witnesses do not inspire confidence as regards allegations made against the accused, and apparently, there is no flaw in the said observations made by the learned trial court. 13. In the circumstances, after scrutiny and analysis of the evidence on record, the view adopted by the learned trial judge, while acquitting the accused of the charge levelled against him, is a possible view to be adopted and the same does not appear to be perverse, and hence, no interference therein is required, in the appellate jurisdiction, and therefore, the present application deserves to be rejected. 14. In the result, application stands dismissed. Leave to file appeal is refused. Record and proceedings be sent back to the concerned court. Application stands disposed of, accordingly. pnd/criap-1962.10 (Shrihari P. Davare, J.)