1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 779 OF 2001 CRIMINAL APPEAL NO. 779 OF 2001 CRIMINAL APPEAL NO. 779 OF 2001 The State of Maharashtra (Through Anti Corruption Bureaus, Nashik District,Nashik).. Appellant Versus (Org.complainant) Tulshiram Dadaji Gaikwad Age 41 years,Line Helper, M.S.E.B. Abhona Budruk, Tal. Kalwan, Dist. Nashik. Respondent (Orig. Accused) Mr. Y.M.Nakhawa, APP, for the State. Mr. M.S.Karnik for the respondent CORAM: R.V.MORE,J. CORAM: R.V.MORE,J. CORAM: R.V.MORE,J. DATE : 26th February,2009. DATE : 26th February,2009. DATE : 26th February,2009. JUDGMENT JUDGMENT JUDGMENT 1. The Appeal is preferred against the order dated 20th July, 2001 passed by the Special Judge, Nashik, in special Case No.3 of 1993 recording the respondent’s acquittal for the offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2 2. The prosecution case, in brief, is as under :- . The respondent at the relevant time was serving as a line helper in the Office of MSEB, Abhona, Taluka Kalwan, District Nashik. The complainant, Sukra Pawar, was granted subsidised electric motor for fetching water through the river so as to raise crops in his land. In order to install the said electric motor, the complainant approached the respondent and requested to instal electric meter. However, the respondent demanded an amount of Rs.1500/-, four Payali wheat and four Payali rice for doing the said work. The complainant told the respondent that he will comply with the demand at the time of harvest. However, the respondent refused to do the work. Ultimately, the respondent instructed the complainant to pay at least Rs.1,000/- on the next Friday and the complainant agreed. The complainant however, on 18.9.1992 lodged a complaint at Exhibit 11 in the office of Anti Corruption Bureau, Nashik. PI Lavange arranged the trap. Two panchas were called. The complainant produced one thousand rupees (100 notes of Rs.10/-). Anthracene powder was applied on the notes. The panchas were introduced to the complainant and all of them showed the demonstration of Ultra-violet (U.V.) light and Anthracene powder. The amount of Rs.1,000/- was kept in the pocket of the complainant’s Kopari with instructions to pay the said amount to the respondent on his demand by right hand and to give signal by folding right sleeve by left land. 3 Accordingly, pre-trap panchnama Exhibit 17 was prepared and thereafter the raiding party proceeded to Albhona at about 2.00 p.m. On enquiry in the office of MSEB, it was found that the respondent had gone to the village and thereafter the complainant along with panch Unawane proceeded to the village. The raiding party along with other panch PW-3 followed them. At the village, the respondent was found at S.T.Bus Stop. He enquired with the complainant whether his work is done. The complainant said in the affirmative. The complainant thereafter took out tainted amount by his right hand from the pocket of Kopari and the respondent accepted that amount in his right hand, he shuffled the notes by left hand and kept the bundle in the left side pocket of his pant. As decided earlier, Signal was given by the complainant and the raiding party arrived. The respondent was caught. The tainted notes were recovered from the left side pocket of his pant. The hands of the accused and the notes were seen in Ultra-violet light. The respondent’s hand as well as the left side pocket of his pant were found shining. The notes which were recovered from the pocket of the respondent’s pant were tallying with the notes mentioned in pre-trap panchnama and they found to be the same. Thereafter, the raiding party along with panchas and respondent returned to the A.C.B. Office at Nashik. There post-trap panchnama was recorded at Exhibit 20. The complaint was lodged at Exhibit 37 and on the basis of that C.R.No.16/92 was 4 registered. Investigation was thereafter started by PW-6. Statements of the witnesses were recorded. Sanction to prosecute was obtained from the Competent Officer. After receiving the sanction, PW-6 submitted the charge-sheet. 3. Charges were framed against the respondent under Section 17 and 13(1)(d) read with Section 13(2) of the prevention of Corruption Act,1988. Charges were read and explained to the respondent in vernacular to which he pleaded not guilty and claimed to be tried. 4. The defence of the respondent was of a total denial. It is further the defence of the respondent that the complainant’s work was already done in February 1992 and so there arises no question of demand and acceptance of illegal gratification. 5. The prosecution in order to establish guilt of the respondent examined six witnesses, viz. PW-1 Sukra Pawar complainant, PW-2 - Sanjay Unawane, PW-3 Hiraji Pawar, the panch witness, PW-4 Govind Saraf, the sanctioning authority, PW-5 Narendra Patil and PW-6 I.O. PI Lavange. The learned Special Judge, on the basis of evidence led by the prosecution and after hearing the learned Counsel, held that the prosecution failed to prove beyond any reasonable doubt the charges levelled against the respondent and, consequently, the respondent 5 was acquitted of the charged as stated above. 6. Mr. Nakhwa, the learned APP submitted that there is enough evidence on record to establish the guilt of the respondent. He submitted that the demand and acceptance of Rs.1,000/- by the respondent is proved beyond any reasonable doubt. He further submitted that if the totality of the circumstances is taken into consideration, the learned Special Judge committed an error in acquitting the respondent and therefore the Appeal deserves to be allowed and the respondent deserves to be convicted. 7. Mr. Karnik, per contra, contested the appeal. He submitted that the learned Special Judge rightly came to the conclusion that the guilt of the respondent is not proved beyond any reasonable doubt. He submitted that the view taken by the learned Special Judge is possible, therefore no interference is called for. 8. Having heard the learned Counsel for the respective parties and having gone through the eidence, I am of the considered opinion that the prosecution has not proved beyond any reasonable doubt the offence alleged against the respondent. The learned Special Judge on the basis of evidence of PW-1 complainant Sukra Pawar, PW-2 unawane and PW-6 PI Lavange along with the documentary evidence at Exhibits 17 and 20 ie. pre-trap 6 and post-trap panchnamas, held that the tainted amount was found in possession of the respondent. I find that the finding recorded by the learned Special Judge is correct. 9. However, mere acceptance of the amount by a public servant is not sufficient to attract the provisions of section 7 and Section 13(1)(d) of the prevention of Corruption Act. In order to constitute an offence, it is further required to be shown that the amount was obtained for doing any official act or forbearing to do such act. It is the specific case of the prosecution that the respondent demanded the amount of Rs.1,000/- from the complainant for installation of the electric motor. It pre-supposes that electric motor was not installed and the alleged demand was made by the respondent in the month of September, 1992. The evidence of PW-1 is contrary to the prosecution story itself. PW-1 in his cross-examination deposed that Mr. Patil was the Engineer at that time. The fitting and the agreement were done in Feb.1992. He further deposed that after fitting, he received bill of electricity and he paid it and received the receipt. He also deposed that at the time of fitting of wire and cable the Electricity Board officer visited the spot. He verified about installation of motors of 8 persons including the complainant. The above evidence of the complainant itself reveals that installation of the electric motor 7 was already done in the month of February 1992 and he received the bill for electricity consumption which he paid subsequently. Thus, there was no question of installation of electric motor in the month of September. It is alleged that the respondent demanded money for installation of electric motor. The evidence of the complainant PW-1 himself makes the prosecution story that the respondent demanded and ultimately obtained or accepted illegal gratification for the purpose of installation of electric motor improbable. When the alleged demand was made by the accused nothing was left with him because already electric motor was installed in the month of February 1992. It is not the case of the prosecution that the respendent demanded illegal gratification for the work which was already done but the prosecution case is specific that the respondent demanded and accepted the amount of illegal gratification for the work which he was required to do. Since the prosecution story of demand and acceptance by the respondent is demolished by the evidence of the complainant PW-1, the benefit of doubt deserves to be given to the respondent. PW-5 Mr. Patil Junior Engineer also in his eidence deposed that the work of installation of electric motor was already done and the complainant and others, are actually availing electricity supply since February, 1992. 10. PW-4 - Harkisandas Saraf, Executive Engineer in 8 MSEB and the sanctioning authority, deposed that the job of Electricity Board is to supply electric connection from the pole to the meter and the motor fitting is not the job of the MSEB. The respondent, who is the employee of the Electricity Board, is not expected to instal electric motor of the consumer. In fact, it is not his job to instal the motor as deposed by PW-4. As soon as the electric supply is given to the consumer, it is for the consumer to get the work of installation of electric motor done. In these facts and circumstances, installation of electric motor cannot be considered as an official duty of the respondent. If it is not the official duty of the respondent, then even if it is presumed that the respondent demanded the amount of Rs.1,000/- from the complainant for the purpose of installation of electric motor, then the provisions of Section 7 and Section 13(1)(d) are not attracted. 11. Thus, the prosecution failed to prove its case that respondent demanded the amount of Rs.1,000/- towards installation of electric motor from the complainant beyond reasonable doubt. The prosecution further failed to prove that this demand of illegal gratification was for doing any official act or forbearing to do such act. Therefore, benefit of doubt deserves to be given to the respondent. The learned Special Judge correctly appreciated the evidence on record and acquitted the respondent. The view taken by 9 the learned Special Judge is a possible view and it is not permissible in the appeal against order of acquittal to substitute the same by another possible view. The Appeal is without any merit. The same is accordingly dismissed. (R.V.MORE,J.) (R.V.MORE,J.) (R.V.MORE,J.)