IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO.2384 OF 2008 The State of Maharashtra .. Applicant Versus Shivaji Nivrutti Bhosale .. Respondent Mr.J.P.Yagnik, A.P.P for the State. Mr.Manoj S. Mohite for the respondent. CORAM CORAM CORAM : A.S.OKA, J. : A.S.OKA, J. : A.S.OKA, J. DATE DATE DATE : 12th March 2009. : 12th March 2009. : 12th March 2009. P.C.: . I have heard the learned A.P.P for the applicant. I have also heard the learned counsel appearing for the respondent-accused. This is an application under sub-section 3 of section 378 of the Code of Criminal Procedure, 1973. The respondent was prosecuted for the offences punishable under section 7 as well as section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. 2. The respondent was working as a land surveyor between the period from 02nd June 1999 to 16th October 2002 in the office of City Survey at Miraj, District Sangli. The complainant is one Sadashiv Magdum whose (2) occupation is stated to be a social worker. He has four brothers. Rajendra is one of them. Rajendra’s wife is Vandana. According to the complainant his brother Rajendra purchased two shops at Miraj. Rajendra also purchased one flat in name of his wife. According to the complainant Rajendra wanted to get entries of his name in the city survey record in respect of said properties. Rajendra prepared two applications in respect of flat and shop. According to the complainant Rajendra handed over copies of the Sale Deeds to him. The complainant approached the respondent with the said applications. On 17th September 2002 the complainant went to the office of the respondent and enquired with the respondent about the work. At that time the respondent accused disclosed that he used to take Rs.500/- for each such entry in the city survey record. According to the complainant the respondent accused stated that as the complainant happened to be a social worker, the respondent would take Rs.300/- for each entry. Though the complainant showed unwillingness to pay the amount, the respondent accused stated that money has to be paid without which the work will not be done. On 18th September 2002, when the complainant visited the office of the respondent, he gave two forms to him in Form 9. The names of the vendors of his brother (3) Rajendra were mentioned in the said forms. The respondent instructed the complainant to get the forms signed by the respective persons. Thereafter the complainant lodged complaint with the Anti Corruption Bureau. A trap was accordingly laid. On 26th September 2002 the complainant alongwith panch witness Mr.Mukund Bidkar visited the office of the respondent. The complainant carried six currency notes of Rs.100/- denomination each to which anthracene powder was applied. The currency notes were kept in the left side pocket of the shirt of the complainant. 3. The complainant deposed before the trial Court that when he alongwith witness Mr.Bidkar entered the office of the respondent, two persons were sitting in front of the table of the respondent. On enquiry being made by the complainant, the respondent accused stated that the work of the complainant has not been done. Thereupon the complainant asked the respondent accused to come out of his office. There was a balcony/gallery in front of the office. The respondent came out of the office and entered the said gallery. The complainant and panch witness Mr.Bidkar followed him to the gallery. At that time the respondent accused asked the complainant whether he had brought the money. (4) Thereafter the complainant took out two forms (Form 9) from his bag and gave the same to the respondent accused. The complainant took out money by his right hand from the left side pocket of his shirt and the respondent accused accepted it by his right hand. The complainant gave predetermined signal. Thereafter, the raiding party entered the premises. Thereafter, panchnama was made and currency notes were seized. The learned Special Judge passed an order of acquittal. 4. The learned A.P.P pointed out that there is a clear evidence of demand by the respondent accused and the payment of the bribe amount to the respondent accused by the complainant. The complainant stated in his evidence that the tainted currency notes were kept by the respondent accused in the two forms handed over by him but the panchnama records that the currency notes were found kept in a notice which is marked as Article 2. He submitted that the said contradiction is totally insignificant which does not affect the substratum of the prosecution case. He submitted that merely because the complainant stated that the respondent accused had kept the currency notes in the forms handed over by the complainant, the evidence of the prosecution regarding demand and acceptance is not vitiated. He, therefore, (5) submitted that the impugned judgment and order is perverse. The learned counsel appearing for the respondent supported the impugned judgment and order. 5. I have perused the notes of evidence and the impugned judgment. The complainant in his deposition described the demand made by the respondent accused in the gallery annexed to his office. The forms were taken out by him from this bag and the same were handed over by him to the respondent accused. The respondent accused took the money from the complainant and kept the money (marked currency notes) in the Forms No.9. In the cross-examination the complainant specifically referred to the said two forms (in Form No.9) given by him to the respondent accused and the said two forms have been marked as Exhibits 29 and 30. In the cross-examination the complainant reiterated that the respondent accused had kept the money in forms at Exhibits 29 and 30. He stated that forms at Exhibit 29 and 30 were not folded by him while the same were being handed over to the respondent. He stated that the respondent accused also did not fold the said forms at Exhibits 29 and 30. P.W.No.2 Mr.Bidkar, the panch witness who accompanied the complainant to the office of the respondent stated that the respondent accused accepted the bribe amount (6) and kept the same in the papers of the notice. He stated that after the raiding party entered the office of the respondent, the currency notes were taken out from the drawer of the table of the respondent. The said witness also referred to forms at Exhibit 29 and 30 and stated that his signature was obtained thereon. In the cross-examination the witness specifically admitted that the complainant had given the documents at Exhibits 29 and 30 to the respondent accused by taking the same out of his bag. The respondent accused specifically stated that the currency notes were kept in the folded condition and the respondent accused did not count the money. 6. It will be also necessary to refer to the evidence of the third prosecution witness Mr.R.D.Chavan who was Deputy Superintendent of Police of Anti Corruption Bureau who headed the raiding party. He also stated that the bribe money was taken out from the drawer of the respondent accused. He referred to notice which is muddemal Article No.2. He stated that when the notice was inspected in ultraviolet light he found that there was shining at the place where the notes were kept in the notice. The said witness has not deposed that the tainted amount was kept in the forms Exhibits 29 and (7) 30. In the examination-in-chief the P.W.No.3 has specifically referred to the forms at Exhibits 29 and 30. But he did not state that the amount was kept in the said forms. 7. It will be necessary to refer to the findings recorded by the learned trial Judge. The learned trial Judge has considered the aforesaid discrepency in the evidence. The learned Judge found that the complainant allegedly paid the bribe amount to the respondent in respect of mutation work which was already done by the respondent accused in September 2002. The learned Judge observed that if evidence of P.W.No.1 and P.W.No.2 (complainant and panch witness) was to be accepted, P.W.No.3 should have found the bribe amount alongwith notices at Exhibits 29 and 30. However, P.W.No.3 found the bribe amount in the drawer of the table alongwith a different notice (muddemal Article No.2) which was found smeared with anthracene powder. The learned Judge observed that there was no evidence on record to show that the forms at Exhibits 29 and 30 were found smeared with anthracene powder. 8. The learned Judge also observed that though the bribe amount was allegedly found in the drawer, the (8) drawer was not seized by the Investigating Officer. In the cross-examination P.W.No.3 admitted that he did not verify whether the drawer of the table could have been removed. He could not explain the reasons for failure to seize the drawer. 9. Considering the aforesaid factors, the learned Judge has passed an order of acquittal. 10. After having perused the notes of evidence, I find that the view taken by the learned Judge is certainly a possible view. By no stretch of imagination the impugned judgment and order can be referred to as perverse. No case is made out for interference and grant of leave. Application is accordingly rejected. (A.S.Oka,J)