Bombay High Court
The State Of Maharashtra vs Kailas Dattatraya Aute on 29 January, 2024
2024:BHC-AUG:1758
{1} ALS 71 OF 2018
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
APPLICATION FOR LEAVE TO APPEAL BY STATE NO. 71 OF 2018
The State of Maharashtra
Through : Police Station,
Kranti Chowk, Aurangabad. ..Applicant
Versus
Kailas Dattatraya Aute
Age: 35 years, Occu.: Service,
(Construction Department)
under Pradhanmantri Gramsadak
Yojana, Karyalaya Chelipura High School,
Zilla Parishad, Aurangabad. ..Respondent
...
APP for Applicant-State : Mr.S.M.Ganachari
Advocate for Respondent : Mr.Rajendrrraa Deshmukkha, Senior
Counsel a/w. Mr.V.A.Chavan i/b. Mr.D.R.Deshmukh
...
CORAM : ABHAY S. WAGHWASE, J.
RESERVED ON : 23 JANUARY, 2024
PRONOUNCED ON : 29 JANUARY, 2024
ORDER :
1 This is an application on behalf of State, thereby seeking leave
to file appeal against judgment and order dated 12-12-2017 passed
by the Special Judge-3, Aurangabad in Special (ACB) Case No.23 of
2009 acquitting respondent from offence punishable under Sections
{2} ALS 71 OF 2018
7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act (for short
"the PC Act").
2. According to learned APP, accused, who was a Clerk in Zilla
Parishad, Aurangabad has demanded Rs.10,000/- for clearing the bill
of the complainant. That finally deal was stuck at Rs.5,000/-. Trap
was laid, it was successful. Shadow pancha and complainant have
both consistently deposed. That even sanctioning authority i.e. Chief
Executive Officer has been examined. However, learned trial Court
acquitted the accused on sole ground of no verification panchanama
by Investigating Officer and there is non-application of mind by
sanctioning authority while according sanction. He submits that
there is overwhelming evidence, but the same has not been
considered. That prosecution has a good case in appeal and
therefore, he seeks leave to file appeal.
3. In answer to above, learned Senior Counsel for the respondent
submits that prosecution has miserably failed to establish charges.
According to him, there was no verification panchanama. He invited
attention of this Court to the cross of shadow pancha, more
particularly, para 4 and submitted that his testimony is of no avail to
{3} ALS 71 OF 2018
the prosecution. That further prosecution is failed to prove that
sanctioning authority, only on application of its mind, has accorded
sanction, therefore, there were fatal lacunas, which were going to the
root of the prosecution case and hence, learned trial Court has rightly
acquitted the accused. Hence, he opposed leave to file appeal for all
above reasons.
4. After considering the submissions and on going through the
papers, it seems that on the basis of complaint launched by PW1
Ratnakar Dinkar Patil, alleging demand of bribe being raised by
accused, PW4 Chopde seems to have laid trap.
In support of its case, apart from testimony of complainant at
exh.24, evidence of pancha witness PW2 Dhansing Gunjale is also
adduced by prosecution.
PW3 Vijay Balkrishna Waghmare seems to be the sanctioning
authority. On going through the papers and impugned judgment as
well as on going through the cross-examination of complainant and
shadow pancha witness PW2 Gunjale, more particularly, para 4, said
testimony cannot be relied. Admittedly, Investigating Officer has not
drawn verification panchanama. Taking such testimony and answers
in cross-examination into consideration, even sanctioning authority
{4} ALS 71 OF 2018
prima facie seems to have not applied its mind before according
sanction. Therefore, learned trial Judge has extended benefit of
doubt. Prosecution has failed to prove its case beyond reasonable
doubt. No valid point is brought to the notice of this Court, which is
worth consideration for granting relief. Therefore, no case being
made out, leave to appeal deserves to be rejected. Accordingly, I
proceed to pass following order :
ORDER
Application for Leave to Appeal by State No.71 of
2018 stands rejected.
( ABHAY S. WAGHWASE )
JUDGE
SPT
