IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY IN THE HIGH COURT OF JUDICATURE AT BOMBAY CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPELLATE JURISDICTION CRIMINAL APPLICATION NO. 1013 OF 2008 CRIMINAL APPLICATION NO. 1013 OF 2008 CRIMINAL APPLICATION NO. 1013 OF 2008 The State of Maharashtra ...Applicant/ Appellant (Orig.Complainant) vs. Dr.Subhash Tukaram Potadar ...Respondent (Orig.Accused) Mr.P.A. Pol, APP for the State-Applicant. Mr.M.S. Mohite for the Respondent. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. CORAM : V.M. KANADE, J. DATED : OCTOBER 13, 2008 DATED : OCTOBER 13, 2008 DATED : OCTOBER 13, 2008 P.C. :- P.C. :- P.C. :- 1. Heard the learned APP for the State and the learned Counsel for the respondent. 2. The applicant - State of Maharashtra has filed this application for leave to file appeal challenging the judgment and order passed by the trial Court whereby the trial court was pleased to acquit the respondent accused for the offence punishable under Section 13(1)(d) read with Section 13(2) read with Section 7 of the Prevention of Corruption Act. - 2 - 3. Prosecution case in brief is that the accused was working as a Doctor in Government Hospital and he had demanded 10% from the complainant for the purpose of giving him certificate in order that the complainant could claim the reimbursement on the medical bills which were to be submitted by him to his office. Initially, demand was made, according to the complainant and pursuant to the demand, the complainant lodged the complaint with Anti Corruption Bureau. A trap was arranged and thereafter, the Anti Corruption Bureau raided the accused hospital. However, since no demand was made, the trap did not materialise and again thereafter, a second complaint was lodged. On the second occasion, the complainant was accompanied by another person. He went inside the cabin of the accused and at that time, the accused demanded the papers from the complainant and on the papers being handed over to him, the accused signed those papers and returned those papers to the complainant. This position has been corroborated by PW Kathawate. On the basis of this evidence, the trial court came to the conclusion that the demand had not been proved by the prosecution. The - 3 - trial court further has observed that PW Chhabanrao also in his evidence before the court has changed his version and has stated that the complainant had visited the Rural hospital, Wai, after the operation was conducted to inform the accused because such intimation was essential for getting the reimbursement of the medical bills. PW Chhabanrao has denied about the meeting with the accused on 15th May, 1997 and has stated that recitals in the complaint were incorrect. The trial court has accepted this version of PW Chhabanrao and therefore, acquitted the accused. 4. In my view, there is no reason to interfere with the orders passed by the trial court. The trial court has given cogent reasons while recording the said finding. It is well settled position in law that if the view taken by the trial court is a possible view, the High Court while exercising its jurisdiction under Section 378 of the Cr.P.C. should not substitute its own view to the view taken by the trial court. The finding recorded by the trial court is not perverse. Further, it is one of the settled position in law that - 4 - in a case where accused is charged for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, the prosecution has to first prove that the demand is made by the accused. Demand of bribe, therefore, is a foundation of the case of the prosecution and unless demand is proved, mere acceptance of money by the accused is of no consequence. In this case also, the prosecution obviously has failed to establish demand by the accused from the complainant. The evidence on record clearly indicates that when the complainant was called inside the cabin of the doctor, he was accompanied by one more person and the doctor demanded papers from the complainant and immediately thereafter, he put his signature on those papers and returned those papers to the complainant. This version has been corroborated by one more witness. No case, therefore, is made out for grant of leave. 5. Leave is refused. Appeal does not survive. (V.M. KANADE, J.) (V.M. KANADE, J.) (V.M. KANADE, J.)