( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 654 OF 2004 The State of Maharashtra ..Appellant Versus 1. Shivram s/o. Sambhaji Sadavarte .. RespondentS Age. 56 years, Occ. Service, R/o. Nanded, Tq. & Dist. Nanded. 2. Prakash s/o. Tulshiram Tribhuvan, Age. 49 years, Occ. Service, R/o. Jalna, Tq. & Dist. Jalna. Mrs. B.R. Khekale, A.P.P. for appellant/State. Shri S.B. Talekar, Advocate for respondent No.1. Shri Joydeep Chatterji, Advocate for respondent No.2. CORAM : P.R. BORKAR,J. DATED : 22.02.2010 ORAL JUDGMENT :- 1. Heard Mrs. B.R. Khekale, A.P.P. for the appellant/State, Adv. Shri S.B. Talekar, for respondent No.1 and Adv. Shri Joydeep Chatterji, for respondent No.2. ( 2 ) 2. This is stage of admission of appeal, so also to consider if leave to file appeal should be granted. This Court by order dated 7th February, 2006, has given common notice to the respondents, why leave to appeal be not granted and why the appeal be not admitted. In pursuance of said order, this appeal is placed for hearing at the time of admission. Considering that the matter is mainly to be argued on fact at the stage of admission, the appeal is admitted and taken up for final hearing immediately. 3. This is an appeal preferred by the State against the judgment of acquittal passed by the Special Judge, Jalna, in Special Case (PCA) No. 4 of 1998, decided on 16.06.2004, whereby the respondent No. 1 was acquitted of offence punishable under section 7 of the Prevention of Corruption Act, 1988 and respondent No.2 was acquitted of offence punishable under section 12 of the Prevention of Corruption Act, 1988. Both the respondents were also acquitted of offences punishable under sections 13 (2) read with 13 (1) (d) of the Prevention of Corruption Act. 4. Respondent No.1 was working as Nayab Tahsildar and ( 3 ) respondent No.2 was working as a Clerk in Tahsil office at Badnapur, Dist. Jalna, at the relevant time. It is prosecution case that complainant Gaffarbeg was doing agricultural business and he was also owner of land at Deogaon-Kusali. He intended to start brick-kiln business in his land Gat No.36 and therefore he had made application to the Tahsildar, Badnapur, on 29.08.1997. He visited the Tahsildar office 2-3 times, but did not get permission. On 10.10.1997 at about 12.00 noon, complainant Gaffarbeg visited the office of the Tahsildar and met respondent No.1, who was working as Nayab Tahsildar and enquired regarding permission for brick-kiln. At that time, respondent No.1 took out file and told the complainant that for permission, he would have to pay Rs. 500/-. It is further stated that the complainant enquired with respondent No.1 as to whom he should pay the amount. Respondent No.1 told him to pay him the said amount. Thereafter, the complainant asked respondent No.1 to reduce the amount, but respondent No.1 did not agree. Thereafter, at the instance of respondent No.1, complainant gave separate application on 10.10.1997 for permission to run brick-kiln and the application was handed over to respondent No.1. The complainant promised to pay till evening and left the office. ( 4 ) 5. It is further stated that the complainant was reluctant to pay Rs. 500/- to respondent No.1. Therefore, the complainant visited the office of the Anti-corruption Bureau and naratted the incident to P.I. Suryawanshi (P.W.4), who recorded the complaint of the complainant. Thereafter pre- trap panchanama was drawn in presence of panchas. The complainant had amount of Rs. 550/-. The numbers of five currency notes of Rs. 100 denomination each were noted in presence of panchas. Anthracene power was applied to said currency notes and same were handed over to the complainant. Thereafter, complainant and P.W.3-Vidyadhar went to respondent No.1. The complainant enquired respondent No.1 about his work and respondent No.1 asked him about the money and then the complainant asked him to reduce the amount of bribe. Respondent No.1 told him to pay Rs. 400/- and when the complainant removed the amount and held the amount towards respondent No.1, at that time respondent No.1 told him to hand-over the amount to respondent No.2. The amount was paid to respondent No.2 in presence of respondent No.1 Then signal was given and respondent No.2 was caught. Thereafter, panchanama of attachment of currency notes from ( 5 ) respondent No.2 was drawn. Usual procedure was followed and the prosecution was lodged against the respondents. The prosecution in all examined five witnesses. Sanction was accorded by the Divisional Commissioner, Aurangabad. 6. It is observed by the Trial Court that in this case there is great variance between the evidence of complainant Gaffarbeg and P.W.3-Vidyadhar – panch who had accompanied him at the time of handing over of money. In para 24 of the judgment, the Trial Court has considered that as per the defence taken, the competent authority to give permission for brick-kiln was the Tahsildar and not the Nayab Tahsildar and at Exh. 88/2, the copy of Government Gazette was produced on record by accused No.1 and it clearly reveals that it was Tahsildar who was empowered to accord sanction for the brick- kiln business and therefore the Trial Court has come to a conclusion that in the facts and circumstances, there was no reason for the complainant – Gaffarbeg to approach respondent No.1. 7. It is also stated in para 26 of the judgment by the Trial Court that as per evidence of P.W.2-Asaram, who was Sr. ( 6 ) Clerk in the Tahsil Office, unless there is report of Circle Inspector and unless royalty amount was deposited, such permission cannot be granted. Admittedly, the royalty amount was not deposited before the alleged trap. 8. It may also be noted that P.W.3-Vidyadhar who was panch witness has not supported the case wholeheartedly and therefore he had to be declared hostile and questions in the nature of cross-examination were put to him by the learned A.P.P. Moreover, material omissions and contradictions were also found in the evidence of complainant – Gaffarbeg, which created serious doubt regarding credibility of evidence of the complainant. It is also noted in para 29 of the judgment that it is mentioned that as per the prosecution case, on 10.10.1997, Eknath Satpute, who was member of Panchayat Samiti and who also hailed from the complainant’s village, was present when respondent No.1 had made demand of Rs. 500/- for permission and eventhough said witness was available, he was not examined and no proper explanation for non- examination is coming forward. 9. In the evidence of complainant – Gaffarbeg, he has ( 7 ) narrated certain things, which were materially different from his complaint – Exh.53. In the complaint it was nowhere stated that respondent No.2 was present when respondent No.1 made demand of Rs. 500/- and therefore in para 29 of the judgment, it is observed that it was surprising how respondent No.2 came into picture. Complainant – Gaffarbeg denied portion marked “A” from his complaint. Said portion is subsequently proved at Exh.63 and it is to the effect that on 10.10.1997 the complainant along with Panchayat Samitee Member Shri Satpute met to the Tahsildar in respect of permission for brick-kiln business, but there were many persons present in connection with Grampanchayat elections. So, the complainant has then denied material portion, namely, that on 10.10.1997 he approached respondent No.1 Nayab Tahsildar, at that time Panchayat Samiti Member Shri Satpute was present and in his presence demand was made. This omission is material omission, in as much as it shows that eventhough P.W.3-Vidyadhar – panch has turned hostile, the prosecution could have examined Eknath Satpute and through him could have proved the demand. Portion marked “B” was also denied by the complainant and said portion marked “B”, which is subsequently proved at Exh.62 from the complainant. ( 8 ) It is to the effect that anthracene powder was appearing on all fingers of both hands and at right pocket of shirt of the complainant after the trap. Moreover, as per statement of Gaffarbeg the conversation took place between the complainant and respondent No.1 second time, it was in Hindi language; whereas from the evidence of complainant – Gaffarkhan and P.W.3-Vidyadhar, doubt arose whether conversation was in Marathi or Hindi language. 10. P.W.3-Vidyadhar has stated in his deposition that when they appraoched accused No.1 in his office, enquiry was made whether his work was done. As per evidence of P.W.1- Gaffarbeg it was he, who made request to respondent No.1 to reduce the amount and thereafter amount was reduced from Rs. 500/- to Rs. 400/-. Thereafter, the complainant said that he removed Rs. 400/- and was about to pay respondent No.1, but at that time respondent No.2 asked him to pay the amount to respondent No.2 and then he paid the amount to respondent No. 2 in presence of respondent No.1. P.W.3-Vidyadhar has not stated anything about complainant enquired about his work or respondent No.1 did not ask him whether he has done his work. P.W.3-Vidyadhar also did not state that at that time ( 9 ) complainant requested respondent No.1 to reduce the amount and respondent No.1 reduced the amount to Rs. 400/- and asked to pay said amount to respondent No.2. So, there is material discrepancy between the complainant and the panch witness. 11. The Trial Court observed in para 36 that there was no cogent evidence to show that while handing over amount of bribe there was talk between the complainant and respondent No.1 and the bribe amount was reduced to Rs.400/-. P.W.3- Vidyadhar stated that it was the complainant who removed currency notes from his pocket and offered the same to respondent No.1, but suddenly respondent No.2 came there and accepted the bribe amount. So, also it is said that there was no demand from respondent no.1. This conduct of respondent No.1 intervening and taking money is not convincing. It may also be noted that in the original complaint Exh.53, no role of respondent No.2 was described. It was defence that it was complainant who had thrust the amount in the pocket of respondent No.2 forcibly and then latter was caught. 12. The learned advocate for the respondents argued ( 10 ) before this Court that there is no evidence to indicate that respondent No.2 had knowledge regarding any settlement between the complainant and respondent No.1, but, the learned A.P.P. rightly argued that this would be a matter strictly between the respondent No.1 and 2 and there would not be any evidence except circumstantial evidence. The fact remained that P.W.3-Vidyadhar has not supported the prosecution case. According to P.W.3-Vidyadhar, amount of Rs. 400/- was kept in right hand side pocket and currency note of Rs. 100/- was kept in another pocket in left hand side. The evidence of P.W.3-Vidyadhar shows that while coming for handing over bribe amount of Rs. 400/- was separated. This statement by P.W.3-Vidyadhar raises serious doubt, as to whether complainant had requested accused No.1 to reduce bribe amount and at the instance of respondent No.1, the complainant handed over Rs. 400/-. In that case, he had no reason to keep Rs.400/- in one pocket and currency note of Rs. 100/- in another. P.W.3-Vidyadhar also stated that amount of Rs. 400/- was recovered from respondent No.2 and Rs. 100/- were recovered from the pocket of the complainant. 13. In para 47, it is observed by the Trial Court that ( 11 ) the complainant admitted that there was Grampanchayat election at Badnapur Taluka and crowd had gathered in the Tahsil office, Badnapur. He denied in his cross-examination that respondent No.1 was busy with election duty. However, P.W.3 admitted that there were many people in the Tahsil office due to Grampanchayat election. It is argued before the Trial Court that in the circumstances, when so many people were around, it was not possible that respondent No.1 would make demand of bribe to the complainant or would reduce the amount of bribe at the request of the complaint or would direct him to pay the amount of respondent No.2. In such case, evidence of other witnesses would have been available. 14. In para 48 the Trial Court discussed this aspect. As per evidence of complainant and P.W.3-Vidyadhar the incident had taken place inside the Tahsil Office at Badnapur and according to P.W.3-Vidyadhar they were at distance of 2 feet away from the table. P.W.4-Sheshrao in his cross- examination, however, admitted that accused No.2 was caught as shown in the panchanama and spot panchanama Exh.59 shows that respondent No. 2 was caught in front portion of Tahsil Office near shutter. So, the doubt was raised whether ( 12 ) respondent No.2 has accepted the amount near the front portion of Tahsil office or inside the Tahsil office. 15. Considering totality of the circumstances and reasons given in detail by the Trial Court, the view taken by the Trial Court is reasonable and probable. It is not perverse judgment. So, in the facts and circumstances of the case, this appeal deserves to be dismissed. Hence, the Criminal Appeal is dismissed. The order of acquittal passed by the Trial Court is hereby confirmed. The bail bonds executed by the respondents stand cancelled. [P.R. BORKAR,J.] snk/2010/FEB10/crap654.04