R.C. Chavan, J.@mdashThis appeal is directed against the judgment of the learned Special Judge at Thane, acquitting respondent for the offence punishable u/s 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988, (for short called as "the Act").
2. The facts which are material for deciding this appeal are as under:
Respondent Rajendragiri Vikramgiri Gosavi, was working as a clerk with the Tax Recovery Department of Thane Municipal Corporation. One Rambhau Vithoba Pote owned a cattle shed, in which he had constructed three rooms, and thereafter sold them to Chandrakant Kamble, Subhadra Mastud and Tukaram Waghmare on 4.10.1988. Chandrakant Kamble had approached the Municipal Corporation for recording the property in their names and for levying tax thereon. Respondent was handling the matter and was alleged to have demanded Rs. 500/- per applicant in all Rs. 1500/- to do the needful. He had also stated that a sum of Rs. 120/- per person would have to be paid towards the charges of the corporation for which receipts would be issued. This was around the beginning of May, 1989. Complainant Kamble, claims to have paid sum of Rs. 50/- to the respondent at that time. Again on 9th May, 1989, respondent is alleged to have repeated the demand. The complainant approached Anti Corruption Department and a trap was laid after performing necessary panchnama on 12.5.1989. The complainant paid a sum of Rs. 1500/- towards bribe and Rs. 360/- towards charges @ Rs. 120/- per person to Municipal Corporation, in presence of a panch which respondent accepted. After necessary signal was given, raiding party appeared and found that the bribe amount of Rs. 1500/- and Rs. 360/- had been kept by the respondent in the drawer of his table. A Panchnama was drawn up. On completion of investigation, sanction was secured from respondent�s appointing authority and then chargesheet was sent.
3. The respondent pleaded not guilty to the charges of offences punishable u/s 7, and 13(2) read with 13(1)(d) of the Act and hence he was put to trial at which the prosecution examined as many as 8 witnesses. After considering the evidence of prosecution witnesses, in the light of defence of the respondent that he had received even Rs. 1,500/- i.e. Rs. 500/- per person, towards tax due, the learned Special Judge by his impugned judgment acquitted respondent. Aggrieved thereby the State has filed present appeal.
4. I have heard learned Additional Public Prosecutor and learned Counsel for the respondent.
5. The learned APP submits that in this case respondent accused had admitted having received sum of Rs. 1500/- as well from the informant. This can be seen from the answers given by the respondent to question No. 52 onwards in his statement u/s 313 of Criminal Procedure Code. She pointed out that the respondent was specifically asked about the evidence of P.W-1 Kamble and P.W.2 Ganesh Gothmare about the events which culminated in receipt of Rs. 1500/- by him. Respondent has specifically admitted that he had taken Rs. 360/- and Rs. 1500/- from informant Kamble and claimed to have told him that he was to give receipts, but Kamble went away from the place. Therefore, according to learned APP in the face of this acceptance of prosecution evidence about receipt of Rs. 1500/- by the accused, it was incumbent upon the accused to explain as to why he had received Rs. 1500/-. She submitted that it was not the duty of the respondent to receive the amount of tax and in any case not without passing receipt. The learned APP submitted that the learned trial Judge should have seen that after admitting that he had received Rs. 1500/- in addition to the lawful dues of Rs. 360/-, it was incumbent upon the respondent to furnish plausible explanation for receiving the amount. She submitted that the learned Trial Judge seems to have been un-necessarily influenced by the fact that the respondent had kept sum of Rs. 1500/- as well in the same drawer in which he kept Rs. 360/-. She also submitted that the learned Trial Judge, at one point of time, also expressed that the respondent was not the authority to reduce the tax for which bribe was allegedly paid. She submitted that this observation in para 10 of the judgment had possibly influenced the mind of the judge though the learned Judge had also added that it was not always necessary that public servant concerned should be in a position to do certain act for which he takes gratification. There can be no doubt that the learned Judge should not have been influenced by the fact as to whether respondent was in a position to do the favour or not and that should not have weighed the mind of the learned Judge.
6. The learned Counsel for the respondent submitted that the informant had stated that the respondent had allegedly told the informant that respondent�s charges will be Rs. 1500/-. In the cross examination the informant had stated that on 11.5.1989 when he had gone to the accused and the accused had told him that informant should bring Rs. 1500/- and respondent would pass tax receipts. The informant had further stated in his cross examination that it did so happen that before going out of the hall, he had enquired with the accused about the receipts and that the accused had told him that he should come in the afternoon for taking receipts. The witness further stated that he did not wait for receiving receipts, but went out of the hall and gave signal to the members of the raiding party, as it was not possible for him to wait for receiving receipts, since, if the accused had issued receipts for both the amounts, then trap would have failed. Thus, in the mind of the informant the possibility of the respondent passing receipt even for Rs. 1500/- was there. Therefore, it cannot be said that the learned Trial Judge was off the mark in holding that the defence raised by the respondent was plausible.
7. The learned Trial Judge has also observed that the chronology of events deposed by both the prosecution witnesses show that the respondent, informant and the panch had in fact gone to a hotel for having a cup of tea before the bribe was actually given in the office of respondent. The learned Trial Judge has rightly observed that it would have been more natural for the respondent to receive the bribe amount in the hotel than his receiving the amount towards bribe on his table
8. The learned Counsel for the respondent drew my attention to the judgment of the Hon''ble Supreme Court in Mohmoodkhan Mahboobkhan Pathan v. State of Maharashtra reported in AIR 1998 (SC) 10 to support his contention that when there is reasonable doubt as to what was collected by the accused was towards lawful obligation of the person paying, the accused would be entitled to a benefit of doubt.
9. He also drew my attention to judgment of this Court in Motiram Jaising Pawar v. State of Maharashtra 1985 Mah. 588 where in relation to a trial of offence punishable under Prevention of Corruption Act, this Court held that in trap cases, if the major part of the version of a witness is found to be false, there would be no reason why the remaining part of his evidence should be accepted. The Court, therefore, held that in such case, accused was entitled to acquittal.
10. Since view taken by the learned Judge cannot be said to be perverse or improper and since the defence was plausible, the acquittal of the respondent recorded by the learned Special Judge must be left undisturbed.
11. As a result the appeal is dismissed.
12. Bail Bonds if any furnished stand cancelled.
