JUDGMENT :

1. In both appeals, exception has been taken to the judgment and order dated 29.09.2005 passed by learned Special Judge, Osmanabad in Special Case (AC) No. 4 of 2003 recording guilt of appellants for offence punishable under sections 7, 13(1)(d) r/w 13(2) and Section 12 of the Prevention of Corruption Act, 1988 [PC Act] respectively.

CASE OF PROSECUTION IN BRIEF

2. In brief, case of prosecution is that anti corruption department received complaint from PW1 Chandrakant, who reported that one Regular Criminal Case was on the file of learned JMFC, Kallam against Gorba Sukale and three others, at his instance. In that connection, informant had approached accused no.1, who was Assistant Public Prosecutor [APP] in said court, and appellant accused demanded Rs.1,000/- to put up the case properly before the court and to take further steps of issuing warrant. Unwillingly, PW1 paid part amount and balance of Rs.500/- was decided to be paid later on. As he was not willing to pay illegal gratification, he lodged report Exhibit 54, which was entertained by PW6 Dy.S.P. Gavali, and on the strength of the same, he arranged panchas, planned trap, prepared pre-trap panchanama Exhibit 35, gave necessary instructions to the complainant and the shadow pancha. On their instructions, both, complainant and shadow pancha, visited court. There, accused no.1 demanded illegal gratification and when informant was paying the same, it was directed to be paid to accused no.2, after which pre- determined signal was relayed by informant, leading to further trap and apprehension of accused persons. Thereafter, PW6 lodged report, carried out investigation, chargesheeted both accused, who were made to face trial before learned Special Judge vide above referred Special Case No. 4 of 2003 and on appreciating prosecution evidence as well as defence witnesses, learned trial Judge, by impugned order dated 29.09.2005, held both accused guilty of offence punishable under Sections 7, 13(1)(d) r/w 13(2) and Section 12 of the PC Act, respectively. Said judgment is now subject matter of the appeals before this Court.

SUBMISSIONS

On behalf of the appellant in Criminal Appeal No. 704 of 2005 :

3. Learned counsel Mr. Salunke appearing for the appellant accused no.1 submitted that appellant accused was working as APP. During pendency of appeal, he expired and therefore, his heir has continued the prosecution of appeal. It is his submission that there was no demand of illegal gratification as, according to him, deceased appellant was APP and therefore, there was no need for putting up any demand. He further pointed out that in this case, very informant did not support prosecution. Therefore, case of prosecution had suffered severe blow. He pointed out that entire case of prosecution is rested on the evidence of PW2 shadow pancha, but he was not present at the time of previous conversation of demand and therefore, his testimony has no evidentiary value and that he was tutored before being examined. That, his cross renders his testimony doubtful.

4. Learned counsel further submitted that here, there is no proper sanction, as said authority was not in charge, and therefore authorized, to issue sanction. Even learned trial Judge has held that PW3 was not in-charge, but still sanction accorded by him has been considered. Learned counsel submitted that appellant accused no.1 has not accepted the amount. There is no recovery at his instance and for all above reasons, he prays to set aside the judgment of conviction.

Learned counsel seeks reliance on the judgment of this Court (Nagpur Bench) in Suresh Purushottam Ashtankar v. State of Maharashtra and another 2015 All M.R. (Cri) 4243.

On behalf of the appellant in Criminal Appeal No. 711 of 2005:

5. Learned counsel Mr. Panale, pleading innocence of his client, would submit that accused no.2 was mere clerk. He had no reason to put up demand. He was merely looking after the work assigned to him by his employer. Therefore, there is no ques