1 crap1161.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY, AURANGABAD BENCH, AURANGABAD CRIMINAL APPLICATION NO. 1161 OF 2011 The State of Maharashtra ...Applicant (Original complainant) VERSUS Chandrakant Bhagwan Pande ...Respondent (Original accused) ..... Shri B.V.Wagh, A.P.P. for applicant Shri S.Y.Mahajan, advocate for respondent ..... CORAM : SHRIHARI P.DAVARE, J. DATED : 3rd August, 2011 PER COURT : 1 Heard learned counsel for the parties. 2 This is an application preferred by the State, seeking leave to file appeal, challenging the judgment and order, dated 30.12.2010, passed by the learned Special Judge, Osmanabad, in Special Case (AC) No. 2 of 2010, thereby acquitting the respondent (original accused) for the offence punishable under 2 crap1161.11 Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act. 3 I have perused the impugned judgment and order, dated 30.12.2010 and the R. and P. with the assistance of learned counsel for the parties. 4 The respondent herein (original accused) faced the trial in respect of the afore said charges for allegedly accepting the bribe amount of Rs.15,000/- to facilitate the transfer of the complainant Mr. Shailendra Sarnikar on 26.5.2009, since the respondent was serving as District Maleria Officer in District Maleria Office, Osmanabad at the relevant time. 5 To substantiate the charges levelled against the accused, the prosecution examined three witnesses, as mentioned below : - PW1 Shailendra Keshavrao Sarnikar – complainant PW2 Mukund Gangadhar Mahadik – Panch 3 crap1161.11 PW3 Pratap Prabhakarrao Kulkarni, Panch of Dy. S.P. Yunus Shaikh, who expired on 20.8.2009. 6 Admittedly, since the respondent/accused was retired on superannuation , the Government did not accord sanction to prosecute the accused. However, the complainant has admitted in his cross-examination that it was not within the powers of the accused as District Maleria Officer to make transfers or postings of Laboratory Technicians and only the Joint Director, Health Services, Maleria, Fileria and Water Born Diseases, Pune had power to make such transfers and postings. Moreover, it has come in evidence that no work was pending with the accused at the relevant time and pertinently the alleged offence occurred on 26.5.2009, but therebefore four times recommendation for transfer of the complainant was made on 21.4.2009, 30.4.2009, 5.5.2009 and 8.5.2009 i.e. before the alleged date of commission of the offence. 7 On perusal of depositions of PW1 complainant Shailendra Sarnikar and PW2 Panch Mukund Mahadik, it is apparent that there is no corroboration in respect of the alleged demand and acceptance of the bribe amount of Rs.15,000/-. 4 crap1161.11 Moreover, PW1 Sarnikar also admitted in the cross-examination that no amount of bribe was recovered from the possession of the accused. Besides, learned Trial Judge has observed in the impugned judgment that one Mr. Salve was serving as Laboratory Technician in the office, who had cordial relations with the complainant and also was his relative, but the prosecution has not examined the said witness, since his evidence was necessary in respect of the merits of the case, as it is alleged that the accused refused to take the amount when offered by the complainant at the time of incident and he asked PW1 Sarnikar to pay that amount to Shri Salve, who also refused to take the amount stating that he does not deal with such transaction, and hence, non-examination of the said material witness Salve hampers the case of the prosecution and the observation made by the learned Trial Court in that respect is not out of place. 8 Accordingly, having the substratum of entire evidence, the learned Trial Court observed that the prosecution case is not proved to be genuine and truthful and the evidence of prosecution witnesses is shaky, faulty and interested, as well as 5 crap1161.11 powdered bribe amount was neither recovered from the possession of the accused nor it was proved that there was demand and acceptance of bribe made by him, and hence, consequently, acquitted the accused and apparently the said reasoning cannot be faulted with. 9 In the circumstances, after scrutinizing and appreciating the evidence on record, the view adopted by the learned Trial Court while acquitting the accused for the charges levelled against him, is a possible view and same does not appear to be perverse, and apparently, there is no flaw in the reasoning given therefor, 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 application stands dismissed. Leave to file appeal is refused. R. and P. be sent back to the concerned court. (SHRIHARI P. DAVARE), JUDGE. dbm/crap1161.11