APEAL-48-2015.odt v. Ashok Pandurang Gadekar

APEAL-48-2015.odtIN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADCRIMINAL APPEAL NO. 48 OF 2015The State of Maharashtra, throughCidco Police Station, Aurangabad (City)....AppellantVersusAshok Pandurang Gadekar,Age 39 years, Occu. Service,R/o Plot No. 7, Shiveshwar Colony,Jadhvwadi, Aurangabad...Respondent***• Mr. B. V. Virdhe, APP for Appellant/State• Ms. Monica Bagwe h/f Mr. C. P. Sengaonkar, Advocate for theRespondent No. ***CORAM:ABHAY S. WAGHWASE, JRESERVED ON:FEBRUARY 26, 2026PRONOUNCED ON:MARCH 04, 2026JUDGMENT : 1.State hereby takes exception to judgment and order dated28.02.2014 passed in Special Case No. 17/2010 by Special Judge,Aurangabad, acquitting accused from charges under Sections 7, 13(1)(2)read with Section 13(1)(d) of the Prevention of Corruption Act.2.In brief prosecution was launched against presentRespondent on receipt of complaint from PW 1 - hotel owner, that, policeconstable was party to the raid to his hotel at midnight on 31.07.2010.Some customers were rounded up and taken to police station along withPAGE 1 OF 10 APEAL-48-2015.odthim on accusations for violating provisions of Bombay Police Act. It is aspecific case of prosecution that, accused, who was a constable,threatened PW 1 to implicate and charge-sheet complainant, to avoidsaid action and there was said to be demand of Rs.5,000/-, which wassubsequently on negotiations brought down to Rs.2,500/-. This wasreported by PW 1 to ACB, who further laid trap, executed it and accusedcame to be apprehended, charge-sheeted, tried but acquitted. Hence, theAppeal.3.Learned APP would point out that, undisputedly accusedwas a police constable and thus a public servant. That, he demandedbribe to avoid action. That, complainant reported it to ACB, whoinitiated action. According to learned APP, in presence of panch accusedhad made demand of bribe and, therefore, after due verification ofdemand, further main trap was laid. That, it was also successful.According to him, both witnesses are consistent, however, by drawinginferences on assumption and presumption, which are contrary toevidence on record, case of prosecution has been disbelieved.4.He pointed out that, there was demand as well asacceptance. That, undue importance has been given to the aspect ofanthracene traces not found to the pen, which was said to be in shirtpocket wherein tainted currency was kept. That, even unduePAGE 2 OF 10 APEAL-48-2015.odtimportance has been given to the location, where panchnamas weredrawn. That, variances were not material.5.As regards to sanction is concerned, he submitted that,learned Trial Court recorded a finding that, sanction was valid andconsequently submitted that, when there was demand and acceptance,which was cogently proved, guilt of accused ought to have beenfastened. However, due to incorrect approach and appreciation ofevidence as well as law, trial ended up in acquittal and hence, he seeksindulgence in this Appeal.6.In answer to above, learned Counsel for Respondents –Accused would submit that, here motive itself was not established as noaction at all was initiated so as to demand bribe. She pointed out that,further accused was merely a constable and not investigating officer orpolice inspector to take action or file charge-sheet. Therefore, veryquestion of competence of accused to threaten and demand bribe comesunder shadow of doubt. She further pointed out that, moreover,complainant himself had faced legal action five times for violating theprovisions of law. Therefore, complaint is out of annoyance. 7.As regards to demand is concerned, she would point outthat, the same itself has come under shadow of doubt. That, accusedPAGE 3 OF 10 APEAL-48-2015.odthad not been to hotel on the alleged day and he has examined witnesson his behalf namely, Shivshankar Jaiswal, who was none other relativeof complainant himself on above point. Therefore, visit of accused to thehotel of complainant itself rendered doubtful.8.She pointed out that, here prosecution story shows that,exercise of verification was done multiple times. However, during noneof the alleged meeting, there was direct demand of bribe and it is soemerging from the prosecution evidence itself. She pointed out that,there is variance in the evidence of complainant and shadow panch as towhere pre-trap panchnama was drawn. That, even investigating officeris giving different version to that extent, therefore, story of prosecutionof trap to be successful was doubtful. She lastly submitted that, learnedTrial Court correctly appreciated available evidence and has notcommitted error whatsoever in acquitting the accused and prays todismiss the Appeal for want of merits.9.On above lines, evidence on record put to scrutiny.10.In view of nature of charge and accusations, evidence ofcomplainant and shadow panch is crucial.PW 1 is the complainant and he is examined at Exhibit 21,where he narrated about raid to his hotel on the night of 31.07.2010 andPAGE 4 OF 10 APEAL-48-2015.odtsome customers taken to police station along with him. According tohim, accused a police constable told him that, he would be charge-sheeted and to avoid the same, he would have to pay Rs.5,000/-, whichon expressed to be on higher side by the complainant was negotiatedand bought down to Rs.2,500/-. Accused himself assured to come tocollect bribe amount but before that, he lodged complaint. In his furtherchief, he stated that, ACB officer told him to borrow time for collectingmoney and immediately come to the office and report demand. He statedthat, while he was in the company of shadow panch Jadhav, accusedcame and asked whether he has arranged Rs.2,500/-. Thereafter, asdirected, he left with panch to arrange and asked accused to sit in thehotel and then he claims that, he and panch went to the ACB office andpassed information. However, at what time all above incidences tookplaces is not stated by this witness. In paragraph 6, he narrated theevents took place after he came back from ACB office and this shown tohave happened around 05.30 pm. He claims that, that time accusedasked him to pay amount and he removed and after accused accepted it,he gave signal followed by arrival of raiding party.While under cross, he admitted that, previously five timesCIDCO police station has initiated action against him for ladies bar.Omissions are brought in paragraph 8 to the extent of he informingPAGE 5 OF 10 APEAL-48-2015.odtpolice on the day of demand verification that, he had called accused onphone who told him that, he is busy in bandobast and would come nextday. He is unable to state why such portion is missing from hisstatement. He is unable to state distance between his hotel and ACBoffice. He is also unable to remember about presence of panchas duringdemand verification. He also surprising answered that, he doesremember whether he stated in his statement that, accused acceptedthe bribe amount and kept in his chest pocket. Therefore, above are thematerial omissions, which goes to the root of prosecution case.11.PW 2 shadow panch, who is examined at Exhibit 33, in hisinitial chief stated about visiting ACB office, getting introduced tocomplainant, signing over the complaint, hearing the story ofcomplainant about bribe and in paragraph 4, he stated that, heaccompanied complainant to the hotel at around 03.30 pm. whileraiding party was waiting in lay 200 mtrs away. That time accusedcame and he stated that, initially complainant told accused that, he waswaiting for him yesterday, upon which accused said that, he was busy inbandobast and thereafter allegedly asked whether he had arrangedRs.2,500/- upon which complainant told him to sit for a while and thathe would arrange the amount and he left and even he followedcomplainant and they both went towards the raiding party on thePAGE 6 OF 10 APEAL-48-2015.odtmotorcycle. He stated that, there in the Government vehicle the I.O.prepared demand verification panchnama Exhibit 35. Then he statedthat, currency were obtained from complainant, then anthracenepowder was applied, procedure explained to them and they both againwent back to hotel at around 05.20 pm and there he claims that,accused asked why you were so late and then complainant told that, hehad no money and, therefore, he had been to arrange the same.Thereafter again accused said to complainant if he has brought theamount, then it should be given to him, upon which complainant gaveand accused accepted and thereafter signal was relayed.While under cross, witnesses has admitted that, at the timeof first demand verification, there were several customers in the hoteland he had not heard the conversation between complainant andaccused, which had taken place on mobile phone. According to him, firstdemand took place in the night and second demand took place duringthe day time. Even during second demand, there were 10 customers,however, in cross he admitted that, complainant and accused had notalk with respect to the reason for which demand of bribe was raised butin paragraph 11 he is unable to state whether amount given bycomplainant is bribe amount or not.12.Therefore, on analyzing above evidence, firstly, there isPAGE 7 OF 10 APEAL-48-2015.odtvariance in the testimony of PW 1 and 2. According to PW 1, afterborrowing time to arrange money, they went to the office of ACB,however, PW2 stated that, after borrowing time to arrange money, theyboth went towards the raiding party, which was waiting in lay anddemand verification panchnama was drawn in the vehicle itself.Therefore, aspect of demand verification has come under shadow ofdoubt. As stated, there are material omission in the testimony ofcomplainant, who is paragraph 8, has admitted that, he cannot assignreason as to why in his statement before police, it is not mentioned that,accused accepted bribe by his right hand and kept it in the left pocket.He is also unable to assign why this statement is silent about he havingtelephonic call with accused. Even, as discussed in the testimony ofshadow panch, there is admission in cross that during telephonicconversation between complainant and accused, he could not hear theirconversation. All these omission got proved through I.O.13.As regard to point of motive to put up demand of bribe,there is force because complainant is first is shown to be policeconstable. There is nothing on record to show what action was initiatedagainst complainant so as to threaten him to pay bribe or compel him topay bribe. On the contrary, it has come on record that, complainanthimself has checkered history of registration of crime lodged againstPAGE 8 OF 10 APEAL-48-2015.odthim for violating the provisions of law.14.By examining defence witness DW 1, very presence ofaccused during the night of 31.07.2010 in which some customers andaccused were allegedly taken to the police station, followed by threat tocharge-sheet him and to avoid bribe being demanded, such story ofcomplainant is also rendered doubtful on the testimony of DW 1 as hestated that, on that day, complainant had asked him to visit his hotel ashe was not there and some matter has taken place there. Therefore, theaspect of initial demand has come under shadow of doubt. 15.To sum up, here, there is doubt whether there was anymotive for putting up demand because admittedly, no criminal action isshown to be initiated, leave aside filing of charge-sheet, on the threats ofwhich bribe was allegedly demanded. As pointed out, accused wasmerely police constable and was thus not in a position to charge-sheetaccused. Therefore, the motive for demand itself is rendered doubtful.There is no work of complainant with accused. I.O. in paragraph 12 ofthe cross has admitted that, he was not aware whether any action wastaken on the complainant on the basis of alleged raid to the hotel ofcomplainant. I.O. rather admits complainant and customers werereleased after due warning. Therefore, here, the motive to put upPAGE 9 OF 10 APEAL-48-2015.odtdemand of bribe itself has not been substantiated. Though it is settledposition that, person may not actually be in a position to perform thework for which bribe is allegedly demanded, would not itself besufficient to exonerate him. However, it is equally settled law that, proofof demand is sine qua non to prove action under Section 7 and 13 of theAct.Secondly, here, PW 2 shadow panch, who is looked upon ascrucial witness, in his cross has admitted that, he did not hear thetelephonic conversation between complainant and accused. There isdoubt about exact location where demand verification was drawn inview of variance in testimony of complainant and shadow panch. Therefore, the story of prosecution is not completely freefrom doubt, hence, impugned order cannot be said to be erroneous orperverse. Hence, the following order is passed:ORDERCriminal Appeal stands dismissed. (ABHAY S. WAGHWASE, J.) UmeshPAGE 10 OF 10