{1} CRI APPEAL 238 OF 2012 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 238 OF 2012 The State of Maharashtra, Through Dy.S.P., Anti Corruption Bureau, Jalgaon. ….Appellant Versus Vivek Tulshiram Baviskar Age : 44 years, Occu.: Service, R/o. Lonwadi Bk., Tq. and District Jalgaon. ….Respondent ….. APP for Appellant : Mr.S.G.Sangle Advocate for Respondents : Mr. Joydeep Chatterji ….. CORAM : ABHAY S. WAGHWASE, J. RESERVED ON : 26 FEBRUARY, 2026 PRONOUNCED ON : 04 MARCH, 2026 JUDGMENT : 1. In this appeal by State, there is challenge to the Judgment and order of acquittal dated 01-11-2011, passed by learned Ad-hoc District Judge-1 and Additional Sessions Judge, Jalgaon, in Special Case No.1 of 2010 by which present respondent stood acquitted from offence under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988. BRIEF FACTS OF THE CASE 2. In short, prosecution was launched against present respondent 2026:BHC-AUG:9086 {2} CRI APPEAL 238 OF 2012 on the complaint received from one Balu Zipa Dhadi wherein he alleged that, he had approached accused Headmaster for clearing bills of mid-day meal served in the School on behalf of Mahila Bachat Gat namely Jay Ambe Swayam Sahayata Mahila Bachat Gat. For clearing said bills, there was said to be demand of Rs.3,000/-. Finally, complaint was lodged with Anti Corruption Bureau (ACB) on 28-04-2009 on the strength of which, ACB authorities planned trap, summoned pancha PW2, introduced him to complainant, gave necessary instructions, they both were made aware of procedure of application of anthracene powder and were made to approach to accused. Accused demanded bribe and even accepted it after complainant handed it over. Necessary signal was relayed resulting into apprehension of accused, crime bearing registered, it being investigated and accused being chargesheeted. On trial, accused stood acquitted vide Judgment and order dated 01-11-2011. Hence, State has come up in appeal. SUBMISSIONS On behalf of appellant State : 3. Learned APP pointed out that, unfortunately before evidence, complainant had died and as such was not available for testimony, {3} CRI APPEAL 238 OF 2012 however, according to him, Shadow pancha PW2, who was party to the main trap, had deposed in unequivocal terms about demand as well as acceptance and therefore, based on his testimony, which has remained unshaken and also taking into account evidence of Investigating Officer PW3 as well as Sanctioning Authority PW1, learned trial court ought to have accepted the case of prosecution, however, according to him, learned trial Court has failed and by incorrectly appreciating the evidence as well as law, acquitted the accused. That, the said judgment is erroneous and contrary to evidence on record and therefore, he prays to allow the appeal by setting aside the impugned judgment. On behalf of Respondent Accused : 4. In answer to above, learned counsel for respondent would justify Judgment and order of acquittal on the ground that very aspect of initial demand to the complainant could not be proved for want of evidence of complainant. According to him, only evidence before trial Court was of shadow pancha PW2. That, there was no corroboration. That, moreover, complainant had no locus to lodge complaint because he was not having concern with the Bachat Gat which was exclusively meant to run by lady members. That, he has {4} CRI APPEAL 238 OF 2012 acted on behalf of his wife, but she has not been examined and therefore, case of prosecution, being doubtful, learned trial Court has made no error whatsoever in acquitting the accused. EVIDENCE IN TRIAL COURT 5. Evidence of prosecution is based on testimony of in all three witnesses. PW1 Dr.Nirupama Dange is Sanctioning Authority, PW2 Ganesh Kashinath Bharambe is Shadow Pancha and PW3 Prakash Bapurao Sonar is the Investigating Officer. As the evidence of complainant is not on record on account of his demise, only evidence that remains for consideration is of PW2 shadow pancha. PW2 Ganesh Kashinath Bharambe, shadow pancha has deposed at exh.10. Its sum and substance is that, on the direction of his superior, he attended ACB, met complainant, heard his story, signed over the complaint, listened to the instructions given by ACB officer, and accompanied complainant to the Zilla Parishad School. According to him, after there was exchange of greetings, complainant asked accused about the cheque and accused counter questioned him whether he brought money as asked, upon which complainant allegedly told him that within 10 minutes he would bring money {5} CRI APPEAL 238 OF 2012 from his wife and thereafter, he and complainant came out and narrated incident to ACB authorities and after some time, they again visited accused, who again asked whether amount has been brought and after it was answered in affirmative by complainant, accused stood up from the chair, walked to the verandah and both complainant and accused followed him. Then, accused took out a cheque book from his pocket, removed one cheque and gave it to complainant, who kept it and again accused asked about money, which was paid by complainant and accepted by accused, who thereafter counted it and kept it in the pocket. This was followed by relay of predetermined signal. In cross-examination nothing damaging to prosecution has been brought. ANALYSIS 6. Thus, on the point of demand and acceptance, there is only evidence of PW2 shadow panch. Unfortunately, before adducing evidence, complainant Balu seems to have expired and therefore, there is no corroboration about aspect of initial demand raised to complainant. What PW2 shadow pancha has deposed, though is accepted as it is, the initial demand is not proved. There is no {6} CRI APPEAL 238 OF 2012 verification of demand got done. Though, it is settled law that mere death of complainant will not itself be a ground to discard the prosecution story, in the cases of such nature, evidence of complainant is crucial. In the case of Neeraj Dutta v. State (Government of NCT of Delhi), (2023) 4 SCC 731, the Hon’ble Apex Court has no doubt clarified that in such eventuality i.e. non- availability of evidence of complainant for some reason, prosecution and charge can still be maintained on the basis of attending circumstances. However, here, as stated above, other circumstances like no verification of demand being made, and there being no corroboration to evidence of PW2 shadow pancha from other pancha namely Prakash Dattatraya Joshi the second pancha, and there is no voice recording of conversation, therefore, other circumstances are not available for consideration. 7. The prosecution story is rendered doubtful on the point of sanction also. It is squarely settled position that, if sanction is not valid, then entire case of prosecution collapses. Here PW1, who was Sanctioning Authority, though stated that she had gone through all the papers and realized that accused was Headmaster and in the said School on account of cooking of mid-day meal, bill of Rs.10,900/- {7} CRI APPEAL 238 OF 2012 was drawn and she realized that there is demand of bribe and therefore, she accorded sanction, her cross-examination shows that, firstly she has put to use draft sanction supplied to her by ACB authorites. She seems to have got sanction order typed on computer and made some deletions as provided in the draft sanction order. Apparently, therefore, there is use of draft sanction and there is no independent assessment. There are also mistakes in the sanction order, which she attributed due to inadvertence. She has admitted that, draft sanction has been used and as such there are reasons to hold that there is no independent assessment or application of mind. Consequently, when law is fairly settled by way of catena of judgments that when sanction itself is invalid, entire story of prosecution falls fag. SUMMATION 8. To sum up, here, there is no evidence of de facto complainant on the point of initial demand. Secondly, there is no corroboration to evidence of PW2 shadow pancha from other independent corner. Lastly, sanction is also mechanical and without due application of mind. For above counts, case of prosecution is indeed not proved beyond reasonable doubt, {8} CRI APPEAL 238 OF 2012 9. Perused the Judgment under challenge. This Court does not find any error or infirmity for according acquittal for above stated reasons. No case being made out on merits to interfere, appeal deserves to be dismissed. Accordingly, following order is passed : ORDER Criminal Appeal stands dismissed. ( ABHAY S. WAGHWASE ) JUDGE SPT