1 crap3997.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 3997 OF 2010 The State of Maharashtra ...Applicant VERSUS Vishwanath s/o Kindlik Bhise ...Respondent ..... Smt. Y.M.Kshirsagar, A.P.P. for applicant/State Shri S.J.Salgare, advocate h/for Smt. S.S.Jadhav, advocate for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 21 st April, 2011 PER COURT : 1 Heard learned counsel for the respective parties. 2 The applicant/State has preferred the present application seeking leave to file appeal against the judgment and order of acquittal, dated 30.6.2010, rendered by learned Judge, Special Court, Jalna, in Special Case (PCA) No. 10 of 2008, thereby acquitting the respondent for the offence punishable under Section 7, 13(1)(d) r/w 13 (2) of the Prevention of Corruption Act. 2 crap3997.10 3 I have perused the impugned judgment and order dated 30.6.2010 and the R. and P. with the assistance of the learned counsel for the parties. 4 The respondent/accused faced the trial for the afore said charges on the basis of complaint lodged by one Gajanan Bhagwanrao Gavhale. The respondent/accused was serving as a Police Constable at the relevant time. 5 To substantiate the charges levelled against the respondent/accused, the prosecution has examined in as much as four witnesses i.e. PW1 Sachin Bhohite – panch; PW2 Gajanan Gavhale - complainant; PW3 Baban Santaram Shamgir - eye witness and PW4 A.K.Sawai, Dy. S.P., A.C.B., Jalna – Investigating Officer. 6 Apparently, the defence admitted the sanction order, and therefore, same was marked as Exh.21, and hence, the prosecution did not examine the competent authority. However, it is also apparent that PW2 Gajanan Gavhale i.e. the complainant as well as PW3 Baban Santaram Shamgir i.e. the eye witness turned hostile and have not supported the case of prosecution. 3 crap3997.10 7 Moreover, considering the evidence on record, the learned Trial Judge observed that the prosecution failed to prove and establish the basic requirement i.e. prior demand, since PW3 Baban Santaram Shamgir i.e. the eye witness turned hostile and since PW1 Sachin Bhohite i.e. panch stated that he could not hear the conversation between the complainant and the accused because of low voice. In the said context, learned counsel for the respondent relied upon the judicial pronouncement in the case of Avinash Sitaram Garware Vs State of Maharashtra, reported at 2008 ALL MR (Cri) 15. 8 Moreover, considering the totality of the evidence on record, learned Trial Judge has observed that the complainant has nowhere stated in his deposition that accused demanded bribe of Rs. 3,000/- at the time of trap and accepted the same for himself in order to show favour to him as to drop further action. Consequently, learned Trial Judge observed that the basic legal requirement i.e. demand and acceptance at the hands of accused is completely lacking in the evidence as well as in the evidence of panch PW1 Sachin, and further observed that even accepting that tainted currency notes were recovered from the custody of accused is not sufficient in any way, in absence of basic legal requirement of proof of initial demand of bribe. In the said context, learned counsel for the 4 crap3997.10 respondent relied upon the judicial pronouncement in the case of Arjun Bajirao Kale vs State of Maharashtra, reported at 2009 ALL MR (Cri) 85 and the judicial pronouncement of the Apex Court in the case of Banarsi Dass vs State of Haryana, reported at 2010 AIR SCW 2282. 9 Having the comprehensive view of the matter, it is apparent that the observations made by the learned Trial Judge and the reasoning adopted in the impugned judgment cannot be faulted with. Moreover, after scrutinizing and assessing the evidence on record, the view adopted by the learned Trial Judge, while acquitting the accused, is a possible view and same does not appear to be perverse, and hence, no interference therein is called for in the appellate jurisdiction, and therefore, present application deserves to be rejected. 10 In the result, present Criminal Application stands dismissed. Leave to file appeal is refused and present Criminal Application stands disposed of accordingly. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap3997.10