This High Court granted no leave to file a criminal appeal against a trial court acquittal. The court held that the prosecution failed to prove demand of bribe, a prerequisite for conviction, and thus the trial court's finding was not perverse.
Leave to file appeal refused; criminal application abandoned.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPLICATION NO. 1013 OF 2008
The State of Maharashtra ...Applicant/
Appellant
(Orig.Complainant)
vs.
Dr.Subhash Tukaram Potadar ...Respondent
(Orig.Accused)
Mr.P.A. Pol, APP for the State-Applicant.
Mr.M.S. Mohite for the Respondent.
CORAM : V.M. KANADE, J.
DATED : OCTOBER 13, 2008
P.C. :-
1. Heard the learned APP for the State and the
learned Counsel for the respondent.
2. The applicant - State of Maharashtra has filed
this application for leave to file appeal challenging
the judgment and order passed by the trial Court whereby
the trial court was pleased to acquit the respondent
accused for the offence punishable under Section
13(1)(d) read with Section 13(2) read with Section 7 of
the Prevention of Corruption Act.
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3. Prosecution case in brief is that the accused
was working as a Doctor in Government Hospital and he
had demanded 10% from the complainant for the purpose of
giving him certificate in order that the complainant
could claim the reimbursement on the medical bills which
were to be submitted by him to his office. Initially,
demand was made, according to the complainant and
pursuant to the demand, the complainant lodged the
complaint with Anti Corruption Bureau. A trap was
arranged and thereafter, the Anti Corruption Bureau
raided the accused hospital. However, since no demand
was made, the trap did not materialise and again
thereafter, a second complaint was lodged. On the
second occasion, the complainant was accompanied by
another person. He went inside the cabin of the accused
and at that time, the accused demanded the papers from
the complainant and on the papers being handed over to
him, the accused signed those papers and returned those
papers to the complainant. This position has been
corroborated by PW Kathawate. On the basis of this
evidence, the trial court came to the conclusion that
the demand had not been proved by the prosecution. The
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trial court further has observed that PW Chhabanrao also
in his evidence before the court has changed his version
and has stated that the complainant had visited the
Rural hospital, Wai, after the operation was conducted
to inform the accused because such intimation was
essential for getting the reimbursement of the medical
bills. PW Chhabanrao has denied about the meeting with
the accused on 15th May, 1997 and has stated that
recitals in the complaint were incorrect. The trial
court has accepted this version of PW Chhabanrao and
therefore, acquitted the accused.
4. In my view, there is no reason to interfere with
the orders passed by the trial court. The trial court
has given cogent reasons while recording the said
finding. It is well settled position in law that if the
view taken by the trial court is a possible view, the
High Court while exercising its jurisdiction under
Section 378 of the Cr.P.C. should not substitute its
own view to the view taken by the trial court. The
finding recorded by the trial court is not perverse.
Further, it is one of the settled position in law that
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in a case where accused is charged for the offence
punishable under Section 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, the
prosecution has to first prove that the demand is made
by the accused. Demand of bribe, therefore, is a
foundation of the case of the prosecution and unless
demand is proved, mere acceptance of money by the
accused is of no consequence. In this case also, the
prosecution obviously has failed to establish demand by
the accused from the complainant. The evidence on
record clearly indicates that when the complainant was
called inside the cabin of the doctor, he was
accompanied by one more person and the doctor demanded
papers from the complainant and immediately thereafter,
he put his signature on those papers and returned those
papers to the complainant. This version has been
corroborated by one more witness. No case, therefore,
is made out for grant of leave.
5. Leave is refused. Appeal does not survive.
(V.M. KANADE, J.)
2 issues framed by the court
Whether the High Court should grant leave to file a criminal appeal challenging a trial court's acquittal when demand is not established.
Whether the prosecution has proved the foundational element of demand in a corruption charge under the Prevention of Corruption Act.
2 provisions across 2 enactments
The State of Maharashtra
Dr.Subhash Tukaram Potadar
V.M. KANADE
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court