JUDGMENT :

1. This is an appeal impugning an order and judgment dated 28th July 2004 passed by Learned Special Judge, (Anti corruption) Thane, acquitting respondent of the offence punishable under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.

2. Complainant P.W.-1 had formed a Co-operative Society and Cooperative society was undertaking contracts from Public Works Department for various works in Wada Division. In May 2001, the works which were awarded to the society had been completed and there were bills pending. After 6 months, when the defect liability period was over P.W.-1 approached accused on 26th December 2001 at about 10.00 a.m for preparing and clearing his bills and forward the same to the concerned authority for payment. Accused at that time, stated that it will be done provided P.W.-1 gave him Rs.35,000/- which was a bribe. When P.W.-1 told accused that he is in financial difficulty, accused agreed to receive the amount in installments. P.W.-1 was instructed to bring Rs.10,000/- between 11.00 a.m to 2.00 p.m. on 28th December 2001 with an assurance that the bills will be signed and sent for sanction provided the amount of Rs.10,000/- is paid and the balance should be paid soon after receipt of the payment. P.W.-1 thereafter approached ACB and on 28th December 2001 at around 8.00 a.m., P.W.-1 with the panch witnesses were present in the office of ACB. Pre-trap formalities were completed and armed with 20 currency notes of Rs.500/- (marked currency notes), the raiding team with P.W.-1 and P.W.-2 (the shadow panch), at about 12.00 noon went for the raid.

3. It is alleged that when P.W.-1 and P.W.-2 reached the office of accused, P.W.-1 greeted accused but accused who was busy with other work, gave him a blank look. P.W.-1 and P.W.-2 thereafter approached the desk of accused, P.W.-2, the panch witness, took the chair in front of the table of accused, while P.W.-1 was standing. P.W.-1 mentioned about pending bills and accused asked him whether he has brought the amount of Rs.10,000/- as instructed. When P.W.-1 answered in the affirmative, accused demanded the money. P.W.-1 took out the marked currency notes from his pocket and handed over to accused, who accepted the same between his right hand fingers and thumb and put it on a sheet of paper lying on the table. Accused thereafter covered the same with another sheet of paper and then he signed the bills. Immediately, P.W.-1 went out of the office and gave agreed signal, raiding party entered and accused was nabbed. On search, the marked currency notes were found on the table covered under the white paper sheet. The marked currency notes were examined and tallied with the pretrap panchnama and on examination of right hand finger tips and as well as right hand thumb tip of accused, traces of anthracene powder was found. Thereafter, post trap procedures were completed and a report was sent to Wada Police Station for registering the offence. Offence was registered, investigation commenced, statements were recorded and after obtaining sanction, charge sheet was filed in the Special Court. Accused pleaded not guilty and claimed to be tried.

In his defence it is the case of accused that he never demanded any bribe. Accused stated that infact the works of P.W-1 when supervised by accused was found below than the standard and PW.-1 was withdrawing the cheques against the works of the other society and as accused was raising objection, P.W.-1 decided to trap him. On the day of trap, when P.W.-1 came to his office with P.W.-2, accused even ignored him and, therefore, P.W.-1 place the bills before accused and asked him to sign. Accused refused to sign the bills without verification of the site of works done and defects. As accused was busy with other office files, P.W.-1 has quietly placed the amount under the paper sheet and left the office. When the raiding party came into the office, accused was busy with his regular work and when he came