JUDGEMENT
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(1.)This is an appeal impugning an order and judgment dated 28 th August, 2004 passed by the Special Judge, Kolhapur acquitting respondent (Herein after referred as accused) of offence punishable under Section 7 (Public servant taking gratification other than legal remuneration in respect of an official act), Section 13 (1) (d) r/w Section 13 (2) of the Prevention of Corruption Act, 1988.
(2.)It is the case of the prosecution that one Mahesh Mohanlal Kothari (PW. 1) resident of Pune was a scrap dealer and along with his friend one Santosh Jewarech and Sethia (RW. 4) was carrying on business in the name and style as "Siddhesh Traders". Siddhesh Traders used to buy scrap from various parties including government offices. In the course of their business, they came across a notice inviting tender dated 04/08/2000 from Metal Scrap Trade Corporation Ltd. (hereinafter referred to as M.S.T.C.) which is a Government of India undertaking. Siddhesh Traders submitted its tender for Rs.4,31,000/- and the tender was accepted. Acceptance of the bid was conveyed by M.S.T.C. by an office order dated 14/09/2000 and Siddhesh Traders was directed to deposit a sum of Rs.4,96,943/- by way of demand draft with M.S.T.C. Upon making that payment M.S.T.C. issued a delivery order in favour of Siddhesh Traders on 29/09/2000.
(3.)To pick up the scrap, complainant RW. 1, his friend Sethia RW. 4 and nine labourers went to Kolhapur on 05/10/2000 to the place where materials were kept. There they meet one Assistant General Manager, Planning Mr. Kulkarni (who has not been examined) and after perusing papers submitted by them, Mr.Kulkarni orally granted permission to break the machinery as mentioned in the tender notice. The Department of Telecommunication had decided to scrap the A.C. Plant and other scrap articles. The work of breaking started immediately and thereafter RW. 1 and RW.4 went back to Pune. On 16/10/2000 RW. 1 went to Kolhapur and met Mr. Kulkarni once again for permission to lift the broken scrap material. At that time Kulkarni told RW.1 that the file was with Deputy General Manager Mr.Sanjay Choudhari and they should meet him. At that time on16/10/2000 EW. 1 complainant's supervisor, one Mr. Rajesh Tiwari who also has not been examined, accompanied EW. 1. They both went to Mr.Choudhari who informed them that the file is with General Manager Mr.Koli. Therefore, on 17/10/2000, EW. 1 and Mr. Tiwari went to meet Mr.Koli. But as they could not meet Mr. Koli they went back to Mr.Choudhari, who also has not been examined, and informed him that they could not meet Mr. Koli. Mr. Choudhari advised them to meet Internal Legal Adviser Mr.Pai - accused. Therefore, EW. 1 and Mr. Tiwari went to meet accused at 6.00 p.m. on 17/10/2000 in his cabin and narrated the entire facts to accused. They requested accused to permit them to lift the scrap and move it to their go down. At that time, it is alleged that accused told EW. 1 "Do you understand or not?" before lifting the material you have not paid the amount of 5% and unnecessarily you are visiting office for four to five days, you should have met me earlier. You come with Rs.20,000/- and I will give permission for lifting the scrap material. The complainant at that time told accused that they have already sustained loss in this transaction, nine labourers were sitting idle and therefore, they be permitted to lift the material soon. Thereupon, accused alleged to have told complainant to bring Rs.20,000/- and take permission or else their tender will be cancelled and complainant will have to face unnecessarily problems. When complainant requested accused to reduce the amount, accused reduced the amount to Rs.15,000/- and told the complainant to bring the amount at 3.00 p.m. on 20/10/2000. Accused also told complainant that unless the amount is brought, his work will not be done.
As accused felt there was no other alternative, he approached the Anti Corruption Bureau, Kolhapur office on 20/10/2000 and lodged the complaint. Pre-trap formalities were completed and it was decided to trap accused on 20/10/2000 itself. It is the case of prosecution that the raiding team went to the office of accused situated at Telephone Bhuwan, Tarabai Park. When RW. 1, RW. 2 and RW. 4 Sethia went to meet accused he was not available in his office as he was busy in a meeting and peon of accused asked them to wait outside and they were waiting. Within 15 minutes accused arrived. Complainant on seeing him greeted him and told accused that he had come to meet him. All three went inside the cabin of accused and sat in the chair in front of accused. Once again complainant asked accused for permission to lift the scrap. At that time accused asked complainant whether he has brought the amount and complainant answered in the affirmative. Thereafter, RW. 1 complainant took out the marked currencies from the left side pocket of his shirt and held the same in front of accused. Accused, instead of taking it in his hand, told complainant to place the amount under one of the telephones that was on the table of accused. There were three telephones on the table and money was kept under the telephone which was in the middle. Accused then lifted middle telephone, the complainant place the money at the spot on the table and accused placed the telephone on top of the money. Thereafter the complainant went out saying he had to go to bathroom and went outside to give signal. When the raiding party entered the cabin, PW. 2 pointed out to PW. 5 (Investigating Officer) that accused has placed money under the middle telephone. Hands of accused were checked and no sign of anthracene powder was found on the hands of accused. There were no sign of anthracene powder even on the dress or person of accused. The base of telephone instrument was checked under ultra-violet light and bluish shining was noticed under the telephone and on top of the glass on the table where the marked currencies were kept under telephone. Post trap panchanama was prepared. Investigation was commenced and after getting necessary sanction, charge-sheet was filed. Accused denied the charge and claimed to be tried.
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