1 crapn2688.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 2688 OF 2010 The State of Maharashtra. Through Shri. Mukund Namdeorao Hatote, Age: 44 years, Occ: Service, Dy. S.P. Anti Corruption Bureau Unit, Latur, District Latur. ...APPLICANT VERSUS Shankar s/o Lobha Rathod, Age: 36 years, Occ: Service, R/o. Radha Krushna Nagar, Latur, Taluka and District Latur. ...RESPONDENT ... Mr. S.G. Nandedkar, A.P.P. for applicant State. Mr. S.P. Urgunde, Advocate for respondent sole. ... CORAM: S.S. SHINDE, J. DATE : 11TH FEBRUARY, 2011 PER COURT : . Heard learned A.P.P. for the applicant State and learned Counsel for the respondent. 2 crapn2688.10 2. This application takes exception to the judgment and order dated 06-05-2010 passed by the Special Judge, Latur in Special Case (ACB) No.01 of 2008. . Since the facts of prosecution case have been elaborated stated from Para Nos. 2 to 7 in the impugned judgment, same are not repeated herein. 3. The respondent – original accused was charged for the offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act for having demanded and accepted the amount of Rs.5000/- from complainant Vinod Shankar Patil as a motive or reward for sanctioning of work order and issuing pay bill of daily wages labourers of Pragati Swanya Rozgar Seva Sahkari Sanstha Ltd., Latur. 4. The learned A.P.P. for the State has submitted that the amount of Rs.5000/- was 3 crapn2688.10 demanded by the respondent-accused from 16-06-2007 for sanctioning and for issuing work order. For sanctioning and for issuing work order, same demand was repeated on 21-06-2007. The complainant approached to Anti Corruption Bureau. Trap was arranged. On 22-06-2007 trap was successfully carried out. Anthracene powder was found on the fingers of the hands of the accused and also on the currency notes which were recovered from the left pocket of the respondent- accused. Learned A.P.P. would submit that the finding recorded by the Special Court that on the relevant date, the respondent was not In-charge of the Establishment who suppose to issue or sanction work order, is incorrect finding. On 16-06-2007 the accused was In-charge of the said Establishment and initial demand was on 16-06-2007 and subsequent demand was on 21-06-2007 and acceptance on 22-06-2007 was only conspicuous by initial demand on 16-06-2007. Therefore, the submission when prosecution has successfully proved demand, acceptance and recovery, in that 4 crapn2688.10 case, the impugned judgment is required to be interfered. Learned A.P.P. further further invited my attention to the evidence of prosecution witnesses and other evidence and submitted that this application seeking leave to appeal may be allowed. 5. Learned Counsel appearing for the respondent vehemently argued that panch witness did not support the prosecution case. As per procedure, signal should have been given to the raiding party by the complainant. However, in the instant case, prosecution claims that signal was given by the panch to raiding party. However, said panch i.e. P.W. No.1 has stated in his cross examination that he did not give such signal to the raiding party. Counsel further submits that panch witness P.W. No.1 has not supported prosecution case either on demand, acceptance and recovery. Therefore, entire prosecution case is required to be rejected. 5 crapn2688.10 6. Learned Counsel appearing for the respondent further invited my attention to observations of the Special Court stating therein that the complainant was aggrieved by the action of the respondent, forwarded notes about unsatisfactory performance of the respondent and therefore, false case was filed against the respondent. According to learned Counsel for the respondent, no cogent or sufficient evidence was brought on record by the prosecution so as to sustain conviction of the respondent. Special Court has taken possible view and therefore, this Court may not interfere in the judgment of the Special Court. Therefore, application seeking leave to appeal may be rejected. 7. I have given due consideration to the rival contention of the parties and also perused the impugned judgment and also record and proceedings made available. On perusal of the impugned judgment and order, it does appears that the Special Court has taken into consideration the 6 crapn2688.10 entire evidence on record and also law laid down by the Hon'ble Supreme Court on the subject. 8. On independent scrutiny of the evidence, it does appear that the prosecution case about initial demand by the respondent on 16-06-2007 is not supported by the independent witnesses. There are only bare words of the complainant. It is true that on 16-06-2007 the respondent was In- charge of the said Establishment, since the regular employee was on leave. However, the fact remains that on 21-06-2007 he was not In-charge of the said Establishment, who is authorised to sanction and issue work order. On 21-06-2007 also, there was no any independent witness who support the prosecution story of demand. That apart, it has come on record that, in the inward and outward register of the said establishment, there is no entry made by the complainant in that register that actually he was entered in the premises of the said Establishment and he has left the premises. Therefore, the Special Court has 7 crapn2688.10 recorded that, it appears that on 21-06-2007 the complainant did not to go the office of the respondent. The demand and acceptance on 22-06-2007 is completely demolished by the evidence of the panch witness. He has categorically stated that there was demand. There was no acceptance and there was no recovery as stated by the prosecution. In absence of independent evidence, on the point of demand, acceptance and recovery, it would be difficult to sustain conviction of the respondent. 9. It is well settled that so far demand is concerned, the prosecution has to establish convincingly that there was demand of amount by the accused. Unless those foundational facts are placed on record, the rebuttal of presumption under Section 20 of the Prevention of Corruption Act would not arise. The Special Court has rightly relied on the judgment of the Hon'ble Supreme Court in the case of State of Maharashtra vs. Dnyaneshwar Laxmanrao Wankhede reported in 8 crapn2688.10 2009 ALL MR (Cri.) 3127 (S.C.), in which the Hon'ble Supreme Court has stated the position that in case the demand is not proved by the prosecution, in that case, there is no question of rebuttal of presumption by the accused under Section 20 of the Prevention of Corruption Act. The prosecution must prove foundational facts. Hon'ble Supreme Court has further held that when two views are possible, one in favour of prosecution and another in favour of the prosecution, latter should prevail. Special Court has also taken a note of the fact that from 20-06-2007 the accused-respondent was not working on the said establishment, who is authorised to sanction and issue work order. 10. Special Court has also discussed in Para-24 about defence taken by the respondent- accused. Para-24 of the Special Court Judgment reads thus : "So far as conduct of accused is 9 crapn2688.10 seen, and defence of the accused regarding false implication, for that purpose accused also filed some certified copies of official notes submitted by him to his superior officers, in which is was shown that he has paid the payment of month of May to labourers amounting to Rs. 77,425/-. The said cheque was admitted by the witness, which is below Exh. 61 and dated 8th June 2007, which shows that the payment of May month was already paid and therefore on that count no question of demanding bribe amount arose. Again in the said notes submitted by accuse,d it was shown that the complainant has not complied the several direction given by him for the purpose of giving work order or taking bond from the society. He has also submitted the notes showing that the payments were not given to the labourers by the society within time and accordingly some labourers have made complaint. Further, P.W. 6 Kachare admitted in his cross examination that daily wages workers have lodged complaint that their 10 crapn2688.10 payments were not given and on bogus signatures the complainant received their payment. So also the resolution was passed in their Board that complainant not being the president, he is signing as a president and therefore, criminal case is to be instituted against him." 11. Upon perusal of the said aforesaid Paragraph, it would make clear that amount of Rs.77,425/- towards payment for the month May to the labourers was already paid and therefore, on that count, there was no question of demanding bribe amount would arise. Taking into consideration the entire evidence on record and the findings recorded by the Special Court, in my opinion, the evidence brought on record by the prosecution was not sufficient to convict the respondent-accused. The Special Court has rightly acquitted the respondent-accused. Possible view is taken by the Special Court and therefore, no interference is warranted. Hence, application 11 crapn2688.10 seeking leave to appeal stands rejected. Consequently, there is no question of registration of any appeal. 12. Registry to send the original Record and Proceedings to the concerned Court, forthwith. [ S.S. SHINDE, J.] sut/feb11/crapn2688.10