rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 421 OF 1996 CRIMINAL APPEAL NO. 421 OF 1996 CRIMINAL APPEAL NO. 421 OF 1996 IN IN IN SPECIAL CASE NO.3 OF 1988 SPECIAL CASE NO.3 OF 1988 SPECIAL CASE NO.3 OF 1988 The State of Maharashtra ] .. Appellant Vs. Hanumant Ramrao Jadhav, ] 35 years, ] Incharge Medical Officer, ] Primary Health Centre ] and Rural Hospital, Poladpur ] District - Raigad. ] .. Respondent Mr. Y.S.Shinde, A.P.P. for the State. None for the Respondent. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. DATED : 5TH JANUARY, 2009 DATED : 5TH JANUARY, 2009 DATED : 5TH JANUARY, 2009 ORAL JUDGMENT :- ORAL JUDGMENT :- ORAL JUDGMENT :- . By this Appeal against an order of acquittal, the State of Maharashtra has taken an exception to the Judgment and order dated 6th February, 1996 passed by the learned Special Judge Raigad at Alibag by which the Respondent/accused was acquitted of the offence punishable under section 5(2) of the Prevention of Corruption Act, 1947. With a view to appreciate the submissions made by the learned A.P.P., for the ( 2 ) Appellant-State, it will be necessary to refer the facts of the case in brief. 2. At the relevant time the Respondent/accused was working as Incharge Medical Officer of Primary Health Centre at Poladpur, District Raigad. The first informant Ganpat was employed as a ward boy in the J.J.Hospital at Bombay. The first informant was suffering from hypertension since April, 1987. From 17th April, 1987 the said Ganpat was taking treatment in J.J.Hospital in Bombay. The case of the prosecution is that the first informant had gone to his native place at Poladpur, District Raigad in the end of April, 1987. As he was suffering from hypertension, on 15th May, 1987 he visited the Primary Health Centre at Poladpur and started taking treatment from the Respondent. The said Ganpat was desirous of obtaining a certificate recording that he was under treatment to enable him to produce the same before his superiors in J.J.Hospital, Bombay. On 25th May, 1997 at about 11.00 a.m. the said Ganpat requested the Respondent to issue the said certificate. According to the said Ganpat, the Respondent informed him that ( 3 ) he would charge fees of Rs.5/- per day for issuing such type of certificate and he will have to pay Rs.5/- per day from the date of treatment i.e. from 15th May, 1997. According to the prosecution case, the said Ganpat informed the Respondent that he was a Government servant employed with J.J.Hospital and therefore he should not be required to pay the fees @ Rs.5/- per day. According to the prosecution case, the Respondent insisted that unless payment was made, certificate would not be issued. The said Ganpat informed the Respondent that he would visit the Primary Health Centre in the morning on 29th May, 1987 for collecting the certificate. The Respondent calculated the days and informed the said Ganpat that he will be required to pay Rs.75/-. The Respondent called the said Ganpat with the amount of Rs.75/- at Poladpur dispensary on 29th May, 1987. On 27th May, 1987 the said Ganpat visited the office of Anti Corruption Department at Alibag and narrated the said incident to the Deputy Superintendent of Police. 3. The concerned officer Mr.Chache arranged for a trap on 28th May, 1987. The said officer alongwith ( 4 ) panch witnesses and staff went to Poladpur Rest House on 10.00 a.m. on 29th May, 1997. The said Ganpat was also present at the Rest House. It is alleged that he narrated the incident to the panch witnesses. Necessary preparation was made for trap by applying anthracene powder to the currency notes of Rs.75/-. Requisite formalities such as search of the said Ganpat was completed. Instructions were given to the said Ganpat to make a signal after the acceptance of the currency notes by the Respondent. One of the panch witness Mr.P.R.Killekar was directed to accompany the said Ganpat. The case of the prosecution is that on 29th May, 1987 in the morning, the said Ganpat, the concerned officer and the panch witness proceeded towards Poladpur in a Maruti car. At about 11.00 a.m. one S.T.Bus dashed against the said car. As the accident was required to be reported to a police station, the trap was withdrawn. The currency notes given to the said Ganpat were taken back and were kept in a sealed packet. The said Ganpat was instructed to meet the Respondent in the afternoon and inform him that he desires to continue the treatment for one or two more days. The said ( 5 ) Ganpat was also instructed to inquire with the Respondent about the certificate. The case of the prosecution is that trap could not be laid on 1st June, 1987, as no response was received from the said Ganpat. A police constable was deputed on 15th June, 1987 who met the said Ganpat. The said Ganpat informed the police constable that the Respondent had asked him to visit the Primary Health Centre on 19th June, 1987 alongwith a sum of Rs.75/-. According to the case of the prosecution a trap was laid on 19th June, 1987 after completing all the formalities. The said Ganpat visited the Primary Health Centre at Poladpur. He took out his case paper. The panch witness Killekar also got prepared his own case paper and both of them waited in a queue. The case of the prosecution is that the said Ganpat went inside the dispensary and came out immediately. After all other patients were examined by the Respondent, the said Ganpat entered the dispensary and requested the Respondent to issue fitness certificate. The Respondent demanded the amount and accordingly, the said Ganpat gave the marked currency notes of Rs.75/- to the Respondent. The said Ganpat gave signal when ( 6 ) the Deputy Superintendent of Police Mr.Chache and others entered into the dispensary and caught the Respondent who had come out in the Varandha. The concerned peon and compounder produced the case papers and the certificate of the said Ganpat. Personal search of the Respondent was taken and currency notes of Rs.75/- were found. 4. A charge-sheet was filed against the Respondent. The defence of the Respondent was that he was entitled to have his own private medical practice as per the Government Resolution. The defence is that the said Ganpat was privately taking treatment from the Respondent and infact he visited the residence of the Respondent on six occasions. According to the Respondent on 25th May, 1987 he claimed fees of Rs.75/- for six visits made by the said Ganpat to the residence of the Respondent. According to the case of the Respondent when he demanded the professional fees, the said Ganpat got annoyed and filed a false case. The main ground on which order of acquittal is passed is that the prosecution could not establish the demand allegedly made on 25th May, 1987, 29th May, 1987, 15th ( 7 ) June, 1987 and 19th June, 1987. The learned Judge found that the evidence of panch witness Killekar was not consistent within the version of said Ganpat. 5. The learned A.P.P has taken me through the notes of evidence and other material on record. He had taken me through the impugned Judgment. His submission is that this was a trap case where the Respondent was caught red handed and currency notes of Rs.75/- which were earlier marked were found on the person of the Respondent. He submitted that the alleged discrepancies found by the trial Court are most insignificant. He submitted that the prosecution witness and especially the witness P.R.Killekar has clearly proved the prosecution case beyond doubt. He submitted that if the entire evidence is considered, the only conclusion possible was of the guilt of the Respondent. He submitted that the impugned Judgment and Order is perverse. None appears for the Respondent. 6. I have given a careful consideration to the submissions. I have perused the notes of evidence and ( 8 ) the other relevant documents on record. The evidence of P.W.6 Mr.Chache who was the Deputy Superintendent of Police at the relevant time discloses that on 25th May, 1987 a demand was made by the Respondent. He stated that a trap was laid by him. However, the said trap was required to be withdrawn as the vehicle in which the police party and others were travelling met with an accident. According to P.W.6, the said Ganpat had informed him that Respondent had called him on 1st June, 1987 with an amount of Rs.75/-. The witness stated that he decided not to lay trap on 1st June, 1987 on account of non availability of panch witnesses. He stated that the said Ganpat did not thereafter come forward. Therefore, he deputed a police constable to the Primary Health Centre on 15th June, 1987. The said police constable met Ganpat. The said Ganpat informed police constable that the Respondent had asked him to visit on 19th June, 1987 alongwith the amount of Rs.75/-. The witness deposed that accordingly, a trap was laid on 19th June, 1987. In the cross examination, the witness admitted that the panch witness Killekar did not state before him that the Respondent first demanded the amount and ( 9 ) thereafter he laid the trap. 7. It will be necessary to refer to the evidence to the prosecution witness 2, the said Ganpat. Perusal of his deposition shows that he has not even stated that the first demand was made by the Respondent on 21st May, 1987. He has not deposed regarding the alleged second demand made on 1st June, 1987. In fact, in paragraph 4 of his deposition he has stated that after the first trap was withdrawn, he had visited to the Respondent and asked the Respondent to continue the treatment. He has, however, not stated that any demand was made by the Respondent at that time. In fact, he stated that he informed the Respondent that he was not desirous of having any certificate at that time. In paragraph 4, the witness has deposed that another trap was sought to be laid, which was cancelled. Thus perusal of the said evidence shows that the said Ganpat has deposed about only one demand and that also without specifying the date on which the demand was made. In the cross examination he admitted that he got himself examined privately by going to the residence of the Respondent. ( 10 ) He stated that he was unable to remember whether he had gone to the residence of the Respondent for getting himself examined for about 5 to 6 occasions. He deposed that after entering the dispensary, he demanded the certificate and the Respondent demanded money. He stated that Respondent prepared the certificate and handed over the same to the Peon for affixing a seal on the same. He stated that thereafter, he took out the currency notes from his pocket and the Respondent accepted the said amount by right hand and kept it in his pocket. 8. At this juncture, it is necessary to refer to the evidence of panch witness Mr.Killekar. As stated earlier, at the time of trap, the said Killekar allegedly accompanied the said Ganpat to the Primary Health Centre and that the bribe was paid in his presence. He deposed that initially Ganpat entered the chamber of the Respondent and followed the said Ganpat. He entered the chamber and complained about abdominal pain and the Respondent prescribed some tablets for the same. The witness stated that he came out and waited outside. At about 11.00 a.m.,the said ( 11 ) Ganpat again entered the cabin/chamber of the Respondent and he waited at the door. According to the witness Killekar, the said Ganpat asked the Respondent whether he has issued the certificate. The Respondent asked him whether he has brought the money. The said Ganpat informed him that he has got the money and, thereafter, the Respondent gave the certificate and asked the peon to affix the seal. After the peon went outside the chamber with the certificate, the said Ganpat handed over the currency notes to the Respondent. According to the version of the said Ganpat he demanded certificate and the Respondent demanded money. The said Ganpat did not depose that money was handed over after the peon left the chamber of the Respondent alongwith the certificate. 9. Apart from the fact that the first demand allegedly made on 25th May, 1987 is not proved, it is not the case of the prosecution that thereafter, the Respondent demanded the amount and he had called the said Ganpat with the said amount on 19th June, 1987. The finding recorded by the learned Judge that the case of the prosecution that demands were made by the ( 12 ) Respondent has not been established appears to be borne out by the evidence on record. As the demands were not established, the learned Judge has expressed a doubt regarding genuineness and veracity of the prosecution case. The learned Judge came to the conclusion that as the factum of demand has not been established, the evidence of the prosecution regarding the acceptance of the bribe has to be viewed with suspicion. Though, it is possible to say that the learned Judge could have written the Judgment in a better manner, the conclusion drawn by the learned Judge is certainly a possible conclusion which could be drawn on the basis of available evidence on record. This is not a case where the impugned Judgment can be said to be perverse. It is well settled that inference could be made with order of acquittal in an appeal against acquittal only for compelling reasons. However, no inference can be made if the view taken by the Trial Court is a possible view. 10. In the circumstances, it is not possible to interfere with the order of acquittal. ( 13 ) 11. The Appeal is, accordingly, dismissed. rpa IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 421 OF 1996 CRIMINAL APPEAL NO. 421 OF 1996 CRIMINAL APPEAL NO. 421 OF 1996 IN IN IN SPECIAL CASE NO.3 OF 1988 SPECIAL CASE NO.3 OF 1988 SPECIAL CASE NO.3 OF 1988 The State of Maharashtra ] .. Appellant Vs. Hanumant Ramrao Jadhav, ] 35 years, ] ( 14 ) Incharge Medical Officer, ] Primary Health Centre ] and Rural Hospital, Poladpur ] District - Raigad. ] .. Respondent Mr. Y.S.Shinde, A.P.P. for the State. None for the Respondent. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. CORAM : A.S.Oka, J. DATED : 5TH JANUARY, 2009 DATED : 5TH JANUARY, 2009 DATED : 5TH JANUARY, 2009 JUDGMENT :- . For the reasons separately recorded, the Appeal is, accordingly, dismissed. (A.S.Oka, J. A.S.Oka, J. A.S.Oka, J.)