THE STATE OF MAHversusVIVEK TULSHIRAM BAVISKAR

2026:BHC-AUG:9086


                                                      {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
                                 {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