The prosecution must prove the demand and acceptance of a bribe as required by law, and the recovery of currency notes without proof of demand does not constitute an offence under the Prevention of Corruption Act.

JUDGMENT :

SHRIKANT D. KULKARNI, J.

1. Feeling aggrieved by the impugned judgment and order of conviction passed in Special Case No. 4 of 2000 by the Special Judge (P.C. Act), Aurangabad, the appellant/original accused has preferred this appeal.

2. The facts giving rise to this appeal in brief are as under.

3. The appellant was serving as Sub Divisional Engineer in the Department of Telecommunications at Aurangabad at the relevant point of time. The complainant (PW-1) Devidas Mohite had applied for installation of STD/PCO booth at Aurangabad. One Mr. Anil Agrawal was STD machines dealer and he contacted to the complainant that he should purchase machine from him. Accordingly, the complainant received demand note of Rs. 5,000/- and the complainant deposited the same in the telephone office. The site inspection was conducted when the appellant refused to give connection in the said premises on account of change of site. Mr. Anil Agrawal informed to the complainant that if he wanted to install the STD booth in the same premises, he had to pay Rs. 2,000/-. Accordingly, the complainant agreed to pay the said amount. But he was not ready to pay bribe. The complainant went to ACB office at Aurangabad and lodged complaint against the appellant and pre-trap panchanama was prepared. On the very next day, trap was laid in the office of the appellant at 4.40 p.m. According to the prosecution, the appellant had accepted bribe amount of Rs. 2,000/- from the complainant. The appellant was found with currency notes of Rs. 2,000/- with anthracene power. The post-trap panchanama was drawn. Accordingly, Crime No. II-3022 of 1998 came to be registered for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act” for the sake of convenience) at Jawahar Nagar Police Station , Aurangabad. After completing the procedural part and after obtaining the sanction, charge-sheet came to be filed in the special court.

4. The learned Special Judge, after appreciating the evidence and argument advanced on behalf of both the sides was pleased to convict the appellant for the offence punishable under Section 7 of the Act and sentenced to suffer rigorous imprisonment for one year and to pay of Rs. 500/- with default stipulation. The appellant was also convicted for the offences punishable under Section 13(1)(d) and 13(2) of the Act and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 1,000/- with default stipulation.

5. The impugned judgment and order of conviction is challenged before this Court on various grounds.

6. Heard Mr. R.N. Dhorde, learned senior counsel for the appellant and Mr. S.P. Deshmukh, learned APP for the respondent/State.

Submission of learned Senior Counsel for the appellant

7. Mr. Dhorde, learned senior counsel invited my attention to the evidence of the complainant/PW-1 Devidas Mohite and PW-2 (Panch Witness) Prakash Nikam. He pointed out that both the important witnesses have turned hostile and not supported to the prosecution case. Another witness PW-5 Abhay Agrawal, who alleged to have played role as a mediator for settling the amount of bribe and to get the work done from the appellant as per the prosecution case, he has also not supported to the prosecution case. Mr. Dhorde, learned senior counsel, therefore, submitted that three important witnesses have not supported to the prosecution case. He submitted that the complainant had shown one site in his application for STD booth and at the time of site inspection, another premises was shown, and therefore, the appellant had made it clear that now complainant cannot change the site. The complainant any how wanted the STD telephone booth in the same premises, and accordingly, made plant to falsely implicate the appellant in this case.

8. Mr. Dhorde, learned senior counsel submitted that there is no direct demand of Rs. 2,000/- by the appellant to the complainant Mr. Mohite. So called reco