1 Cri.A.4459.09 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPLICATION NO. 4459 OF 2009 The State of Maharashtra Through The Dy. Superintendent of Police, Anti Corruption Bureau, Jalna, Tq. And District Jalna. ...APPLICANT VERSUS Devidas S/o Bhimrao Nikumbh, Accountant, Jalna District Supervision Co-operative Society Ltd. Jalna, Age 57 Years, R/o Satkaryanagar, Jalna, Taluka and District Jalna. ...RESPONDENT ... Mr.T.S.Lohde,APP for Applicant-State Mr.S.B.Deshpande,Advocate for respondent. ... CORAM: U.D.SALVI, J. DATE : 29TH AUGUST, 2011 PER COURT : 1. Heard. Perused application and record. 2. Leave to prefer an appeal against the judgment and order of acquittal under sections 7, 13(1)(d) read with section 13(2) of the Prevention 2 Cri.A.4459.09 of Corruption Act 1988, passed by the learned Special Judge, Jalna on 16.09.2009 is sought by the State. 2. A complaint was made by one Tukaram Ramji Sarnge, Group Secretary, District Supervision Co- Operative Society, Wakhari Wadgaon, Tq. and District Jalna, against the accused, then working as Accountant in his establishment. According to the complainant, he had paid Rs.10,000/-(Rupees Ten Thousand) to the accused and the demand was made for an amount of Rs.2000/-(Rupees Two Thousand), as a bribe for arranging payment of salary of Rs.24,000/-(Rupees Twenty Four Thousand) and he was not willing to pay the balance amount of the demand i.e. Rs.2000/-(Rupees Two Thousand). He, therefore, approached the Anti Corruption Bureau and consequently the accused was trapped, while accepting the amount of Rs.2000/- (Rupees Two Thousand). 3. The prosecution had examined the complainant, 3 Cri.A.4459.09 panch witnesses and Investigating Officer. The accused specifically took a defence in his statement recorded under section 313 of the Code of Criminal Procedure that he had demanded repayment of the hand loan given to the complainant and he was, eventually, trapped in false case as complainant was not willing to repay the said amount. 4. P.W.1 Tukaram Ramaji sarange, the complainant, in his complaint Exh.12, asserted that there was no fiduciary transaction between himself and the accused and yet he deposed in the cross examination that two months before lodging of the complaint he had taken Rs.2000/- from the accused as hand loan, upon an agreement to repay the same after getting the amount of arrears of salary, and till agreed date he had not made good the said repayment. 5. In para No.4 of his examination-in-chief, P.W.1 Tukaram Sarange gave brief account of the 4 Cri.A.4459.09 alleged demand in the following terms: . “The accused asked me whether the said cheque was honoured. I answered in the affirmative. The accused asked me whether I brought money as he demanded yesterday. I said him that I have brought money. So, the accused demanded money from me. I took out amount of Rs. 2000/- from right pocket of my Nehru Shirt and handed over to the accused.” . In his cross-examination an omission that the accused had told him that he would not give him Rs.9000/-, unless an amount of Rs.2000/- was given to him, has been brought on record. 6. P.W.2-Gopichand Jadhav, Panch, however, gave lengthy account of conversation, which took place between accused and the complainant. Material portion of the conversation is quoted herein below: “The accused asked the complainant to give Rs.2000/- to him as he already 5 Cri.A.4459.09 told to him. The complainant said the accused that he had already taken Rs.12000/- from his bill of Rs. 24,000/-. The complainant further said to the accused that after giving Rs.2,000/- to him, the total amount of Rs.14,000/- will be paid to him and he will get only Rs.10,000/-. The accused said the complainant that his superior officer is not going to pass bill, but he will do all things for him.” . Such conversation, particularly conversation in presence of panchas, is not finding place in the testimony of P.W.1-Tukaram Sarange, the complainant. 7. Learned trial Court, therefore, rightly observed in para No.19 of the impugned judgment as under: “19. After close scrutiny of the evidence adduced by the prosecution witness, it is seen that the complainant himself admitted that he borrowed amount of Rs.2,000/- by way of hand loan from the accused. It can be 6 Cri.A.4459.09 inferred from the admission given by this witness that the accused accepted amount of Rs.2000/- as a hand loan from the complainant. I have already mentioned above that the evidence of complainant and panch witness is not consistent with each other. As such, their evidence is not enough to indicate the accused demanded amount of bribe and accepted the same from the complainant. On the contrary, the accused has rebutted the presumption that arises under Section 20 of the Prevention of Corruption Act. As such, the entire material placed on record is not enough to show that the accused demanded bribe and accepted the same from the complainant. In the light of above discussion, I answer points No. 1 to 4 in the negative.” 8. In the light of above, leave is refused. The application is disposed off accordingly. Sd/- [ U.D.SALVI J.] MTK 7 Cri.A.4459.09