AN APPELLATE COURT HAS THE POWER TO REVIEW, RE-APPRECIATE, AND RECONSIDER THE EVIDENCE UPON WHICH AN ORDER OF ACQUITTAL IS FOUNDED.

Subrata Talukdar, J.: This is an application filed by the petitioner CBI challenging the judgment and order dated 25th April, 2001 pronounced by the Ld. 5th Special Court, Calcutta in Case no.4 of 1996 in the matter of State (CBI) Vs. Binoy Kumar Sarkar and Anr. By the said impugned judgment and order the Ld. Special Court was pleased to acquit the accused persons of the charges framed against them under Sections 7 read with Section 13 (1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (for short the P.C.Act). Aggrieved by such order of acquittal the CBI has preferred the present application being CRM 2772 of 2001.

The brief facts of the case are as follows:-

a) That on 19th January, 1996, one Paresh Nath Duari, Laskar of Budge Budge Unit under Mooring Masters’ office lodged a complaint with the CBI that one of the accused, Binoy Kumar Sarkar, being the respondent no.1 in this application has demanded a sum of Rs.1,000 as illegal gratification to be paid to him on 22nd January, 1996 at the Mooring Masters’ office, Calcutta Port Trust for quick release of the salaries of the said complainant for the period August to September 1995 and his identification at the time of encashment.

b) That the complaint was registered on 20th January, 1996 in the office of the CBI, Anti-corruption branch u/s 7 of the P.C.Act being R.C. Case no.7 of 1996.

c) On the 22nd of January, 1996 at about 2:15 p.m. a trap was laid by the CBI in respect of the 2 respondents at the tea stall of one Swapan Mondal located in front of the Mooring Masters’ office, Calcutta Port Trust at Taktaghat, Hastings. Immediately, after the said Binoy Kumar Sarkar, the respondent no.1 had accepted the bribe money and passed it on to the respondent no.2, Sri Nirmalendu Bhattacharya, they were arrested in the presence of witnesses. The entire trap operation was executed in front of several witnesses and the respondent no.2, the said Nirmalendu Bhattacharya accepted the money and concealed it in the right pocket of his ‘kurta’. Thereafter the said money was transferred by him to the respondent no.1, the said Binoy Kumar Sarkar.

d) The sanction was recorded for prosecution and charge sheet was submitted on 13th August, 1996. Cognizance was taken and, on 19th January, 1997 charges were framed under the aforementioned Sections of the P.C.Act. Upon commencement of trial on 14th April, 2001, on 25th April, 2001 the Ld. 5th Special Court pronounced its judgment and order acquitting the respondents of the charges and directing that the seized currency notes be returned to the de-facto complainant. Challenging the said order of acquittal the present application has been filed. Sri Ashraf Ali, Ld. Counsel appearing for the petitioner-CBI submits that the entire appreciation of the evidence of the Ld. Special Court is erroneous. Consequently, he submits that the Ld. Special Court arrived at a wrong conclusion thereby acquitting the respondents.

Taking this Court first to the evidence of PW5 appearing at pg.44 of the paper book, Sri Ali points out that such evidence is totally free from ambiguity. PW5 is the de-facto complainant. In his evidence PW5 states that he is a Laskar attached to the Marine department of the Calcutta Port Trust. Between 18th August, 1995 to 3rd January, 1996 he was on leave on account of his wife’s illness for which he was not able to draw his salary. The salary of Laskar is drawn from the office of Mooring Masters’ office at Taktaghat under Calcutta Port Trust.

On 16th January, 1996, i.e. the day of payment of his salary, PW5 went to the office of the Bill Section at the Mooring Masters’ office and was met by the respondent no.1. At the relevant time the respondent no.1 was working as Bill Clerk and was responsible for payment of salaries.

PW5 states that the said respondent no.1 demanded Rs.1,000 from him in cash in lieu of payment of salary. Failing such illegal gratification PW5 was told that he would receive no salary. The arrears of salary p