1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO.3471/2010 The State of Maharashtra. Applicant V E R S U S Umakant Atmaram Sapkar Respondent Mrs. Y.M.Kshirsagar, APP for applicant. Mr. P.B.Patil Advocate for the respondent/accused. CORAM : SHRIHARI P. DAVARE, J. DATE : 22 nd JUNE, 2011. PER COURT : 1. Heard learned counsel for the parties. 2. This is an application filed by the applicant-State seeking leave to file appeal challenging the judgment and order dated 12.3.2010 rendered by learned Adhoc Additional Sessions Judge, Amalner District Jalgaon in Special Criminal Case No.1/2007, thereby acquitting the respondent/original accused for the offence punishable under section 7, 13 (1) (d) r/w sec. 13 (2) of Prevention of Corruption Act. 2 3. I have perused the impugned judgment dated 12.3.2010 and record and proceeding with the assistance of learned counsel for the parties. 4. It is alleged that accused namely Umakant Atmaram Sapkar was Talathi of Saja Tavse (Kh) Rukhankheda at the relevant time and he obtained an amount of Rs.1500/- on 16.12.2005 from the complainant namely Narayan Patil as gratification other than legal remuneration for issuance of 7/12 extract in respect of the land purchased by Narayan Patil bearing at No.21/1 area 1 Hector 5 Aar situated at Rukhankheda Shivar on 17.11.2005 and therefore, he faced trial for the above referred offences. 5. To substantiate the charges levelled against the accused prosecution examined as many as four witnesses as mentioned below :- a] PW 1 Narayan Shaligram Patil - complainant b] PW 2 Muralidhar Bandu Patil - Panch. c] PW 3 Gulab Rajaram Kharat - Sanctioning authority. d] PW 4 PI Dattatraya Karbhari Ghuge Investigating officer. 3 As well as prosecution relied upon documentary evidence as such complaint dated 15.12.2005 lodged by PW 1 Narayan Patil Exh.14, pretrap panchnama dated 16.12.205 Exh.17, spot panchnama dated 15.12.2005 at Exh.18, arrest panchnama dated 16.12.2005 Exh.19, complaint dated 16.12.2005 has lodged by PW 4 PI Ghuge Exh.28 and sanction order dated 29.12.2006 at Exh.24. 6. It is alleged that first demand was made on 12.12.2005 by the accused for issuance of seven twelve extract and said demand was for Rs.2,000/-. It is further alleged that after negotiations amount of Rs.1500/- was agreed to be given to the accused by the complainant and accordingly second demand of Rs.1500/- was made by the accused on 15.12.2005 i.e. on the date of complaint and further on the date of trap i.e. 16.12.2005 demand and acceptance of the said amount was duly proved by the complainant and corroborated by the panch witness. However, in the said context, it has come in the evidence of PW 4 PI Ghuge that during investigation he has made inquiry in respect of the transaction for which entries were made for 7/12 extract of the 4 property and deposed that entry of said transaction was recorded in the record on 18.11.2005 itself. PW 4 Ghuge PI deposed about entry of SETU was recorded on 7.12.2005 and contents of Exh.29 also disclose that entry of SETU has been made on 7.12.2005 itself. Hence, aforesaid allegations in respect of first demand on 12.12.2005 for Rs. 2,000/- by the accused and after negotiations second demand was made on 15.12.2005 for Rs.15,00/- come under doldrums. 7. Apart from that learned trial court has observed in paragraph No.78 of the impugned judgment and record shows that accused at the time of trap and during the trial has come with a defence that amount towards land revenue was outstanding against PW-1 Narayan Patil and his family members. It is settled principle of law that accused has to establish his defence on preponderance of probability. In the said context, it is material to note that PW 1-Narayan Patil i.e. complainant in his evidence admitted that on 15.12.2005 amount of Rs.6,000/- was outstanding towards Pot Hissa as recorded in his land, and hence, learned trial court has rightly observed that explanation given by the accused in 5 that case can be said to be reasonable and proper. Apparently there does not appear any flaw in the said observation. Hence, explanation as given by the accused raised the possibility of giving the amount towards the payment of land revenue and, therefore, mere recovery of the amount from the possession of the accused cannot be said to be sufficient to hold that accused has accepted gratification other than legal remuneration and hence presumption under section 20 of the Prevention of Corruption Act cannot be said to be available in favour of the prosecution since accused has established his defence on preponderance of probability. 8. As regards Sanction order, learned trial court has observed that PW 3 Gulab Rajaram Kharat has not gone through the papers of investigation thoroughly and has not applied his mind while according sanction Exh.24 and therefore, held that sanction order exh.24 is bad in law and cannot be said to be legal. In the said context, it appears that while according sanction it was considered that the seven twelve extract was to be issued by accused to the complainant after entering into his name therein 6 and for that purpose accused allegedly demanded amount of gratification but the case of the prosecution is that accused demanded alleged amount of gratification only for the issuance of seven twelve extract and not beyond that. Therefore, learned trial court has rightly observed that said sanction appears to have been issued without application of mind. Apart from that as mentioned herein above entry of name of the complainant Narayan Patil has already taken in the 7/12 extract on 18.11.2005 and it was also recorded on SETU on 7.12.2005 and hence the learned trial court rightly concluded that said sanction is defective. 9. Learned counsel Mr. P.B.Patil appearing for accused placed reliance on two judicial pronouncements reported at AIR 2002 SUPREME COURT in the case of Punjabrao Vs. State of Maharashtra and 2009 (3) SCC 779 in the case of C.M.Girish Babu Vs. CBI Cochin. 10. In the circumstances, after scrutinizing, analyzing and appreciating evidence on record, and also considering the said Judicial pronouncements, the view adopted by the learned trial 7 court while acquitting the accused is a possible view and same does not appear to be perverse and reasoning adopted there for also cannot be faulted with and therefore no interference therein is called for in the appellate jurisdiction, and hence, present application deserves tobe rejected. 11. In the result, present application which is sans merits stands dismissed. Leave to file appeal is refused. Record and proceeding be sent back to the concerned court. ( SHRIHARI P. DAVARE ) JUDGE ... aaa/3471.10