APEAL-48-2015.odt IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CRIMINAL APPEAL NO. 48 OF 2015 The State of Maharashtra, through Cidco Police Station, Aurangabad (City). ...Appellant Versus Ashok 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 the Respondent No. *** CORAM : ABHAY S. WAGHWASE, J RESERVED ON : FEBRUARY 26, 2026 PRONOUNCED ON : MARCH 04, 2026 JUDGMENT : 1. State hereby takes exception to judgment and order dated 28.02.2014 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 present Respondent on receipt of complaint from PW 1 - hotel owner, that, police constable 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 with PAGE 1 OF 10 2026:BHC-AUG:9039 APEAL-48-2015.odt him on accusations for violating provisions of Bombay Police Act. It is a specific case of prosecution that, accused, who was a constable, threatened PW 1 to implicate and charge-sheet complainant, to avoid said action and there was said to be demand of Rs.5,000/-, which was subsequently on negotiations brought down to Rs.2,500/-. This was reported by PW 1 to ACB, who further laid trap, executed it and accused came to be apprehended, charge-sheeted, tried but acquitted. Hence, the Appeal. 3. Learned APP would point out that, undisputedly accused was a police constable and thus a public servant. That, he demanded bribe to avoid action. That, complainant reported it to ACB, who initiated action. According to learned APP, in presence of panch accused had made demand of bribe and, therefore, after due verification of demand, further main trap was laid. That, it was also successful. According to him, both witnesses are consistent, however, by drawing inferences on assumption and presumption, which are contrary to evidence on record, case of prosecution has been disbelieved. 4. He pointed out that, there was demand as well as acceptance. That, undue importance has been given to the aspect of anthracene traces not found to the pen, which was said to be in shirt pocket wherein tainted currency was kept. That, even undue PAGE 2 OF 10 APEAL-48-2015.odt importance has been given to the location, where panchnamas were drawn. 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 and consequently submitted that, when there was demand and acceptance, which was cogently proved, guilt of accused ought to have been fastened. However, due to incorrect approach and appreciation of evidence as well as law, trial ended up in acquittal and hence, he seeks indulgence in this Appeal. 6. In answer to above, learned Counsel for Respondents – Accused would submit that, here motive itself was not established as no action at all was initiated so as to demand bribe. She pointed out that, further accused was merely a constable and not investigating officer or police inspector to take action or file charge-sheet. Therefore, very question of competence of accused to threaten and demand bribe comes under shadow of doubt. She further pointed out that, moreover, complainant himself had faced legal action five times for violating the provisions of law. Therefore, complaint is out of annoyance. 7. As regards to demand is concerned, she would point out that, the same itself has come under shadow of doubt. That, accused PAGE 3 OF 10 APEAL-48-2015.odt had not been to hotel on the alleged day and he has examined witness on his behalf namely, Shivshankar Jaiswal, who was none other relative of complainant himself on above point. Therefore, visit of accused to the hotel of complainant itself rendered doubtful. 8. She pointed out that, here prosecution story shows that, exercise of verification was done multiple times. However, during none of the alleged meeting, there was direct demand of bribe and it is so emerging from the prosecution evidence itself. She pointed out that, there is variance in the evidence of complainant and shadow panch as to where pre-trap panchnama was drawn. That, even investigating officer is giving different version to that extent, therefore, story of prosecution of trap to be successful was doubtful. She lastly submitted that, learned Trial Court correctly appreciated available evidence and has not committed error whatsoever in acquitting the accused and prays to dismiss 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 of complainant 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 and PAGE 4 OF 10 APEAL-48-2015.odt some customers taken to police station along with him. According to him, 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/-, which on expressed to be on higher side by the complainant was negotiated and bought down to Rs.2,500/-. Accused himself assured to come to collect bribe amount but before that, he lodged complaint. In his further chief, he stated that, ACB officer told him to borrow time for collecting money and immediately come to the office and report demand. He stated that, while he was in the company of shadow panch Jadhav, accused came and asked whether he has arranged Rs.2,500/-. Thereafter, as directed, he left with panch to arrange and asked accused to sit in the hotel and then he claims that, he and panch went to the ACB office and passed information. However, at what time all above incidences took places is not stated by this witness. In paragraph 6, he narrated the events took place after he came back from ACB office and this shown to have happened around 05.30 pm. He claims that, that time accused asked 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 times CIDCO police station has initiated action against him for ladies bar. Omissions are brought in paragraph 8 to the extent of he informing PAGE 5 OF 10 APEAL-48-2015.odt police on the day of demand verification that, he had called accused on phone who told him that, he is busy in bandobast and would come next day. He is unable to state why such portion is missing from his statement. He is unable to state distance between his hotel and ACB office. He is also unable to remember about presence of panchas during demand verification. He also surprising answered that, he does remember whether he stated in his statement that, accused accepted the bribe amount and kept in his chest pocket. Therefore, above are the material omissions, which goes to the root of prosecution case. 11. PW 2 shadow panch, who is examined at Exhibit 33, in his initial chief stated about visiting ACB office, getting introduced to complainant, signing over the complaint, hearing the story of complainant about bribe and in paragraph 4, he stated that, he accompanied complainant to the hotel at around 03.30 pm. while raiding party was waiting in lay 200 mtrs away. That time accused came and he stated that, initially complainant told accused that, he was waiting for him yesterday, upon which accused said that, he was busy in bandobast and thereafter allegedly asked whether he had arranged Rs.2,500/- upon which complainant told him to sit for a while and that he would arrange the amount and he left and even he followed complainant and they both went towards the raiding party on the PAGE 6 OF 10 APEAL-48-2015.odt motorcycle. He stated that, there in the Government vehicle the I.O. prepared demand verification panchnama Exhibit 35. Then he stated that, currency were obtained from complainant, then anthracene powder was applied, procedure explained to them and they both again went 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, he had no money and, therefore, he had been to arrange the same. Thereafter again accused said to complainant if he has brought the amount, then it should be given to him, upon which complainant gave and accused accepted and thereafter signal was relayed. While under cross, witnesses has admitted that, at the time of first demand verification, there were several customers in the hotel and he had not heard the conversation between complainant and accused, which had taken place on mobile phone. According to him, first demand took place in the night and second demand took place during the day time. Even during second demand, there were 10 customers, however, in cross he admitted that, complainant and accused had no talk with respect to the reason for which demand of bribe was raised but in paragraph 11 he is unable to state whether amount given by complainant is bribe amount or not. 12. Therefore, on analyzing above evidence, firstly, there is PAGE 7 OF 10 APEAL-48-2015.odt variance in the testimony of PW 1 and 2. According to PW 1, after borrowing time to arrange money, they went to the office of ACB, however, PW2 stated that, after borrowing time to arrange money, they both went towards the raiding party, which was waiting in lay and demand verification panchnama was drawn in the vehicle itself. Therefore, aspect of demand verification has come under shadow of doubt. As stated, there are material omission in the testimony of complainant, who is paragraph 8, has admitted that, he cannot assign reason 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 having telephonic call with accused. Even, as discussed in the testimony of shadow panch, there is admission in cross that during telephonic conversation between complainant and accused, he could not hear their conversation. 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 police constable. There is nothing on record to show what action was initiated against complainant so as to threaten him to pay bribe or compel him to pay bribe. On the contrary, it has come on record that, complainant himself has checkered history of registration of crime lodged against PAGE 8 OF 10 APEAL-48-2015.odt him for violating the provisions of law. 14. By examining defence witness DW 1, very presence of accused during the night of 31.07.2010 in which some customers and accused were allegedly taken to the police station, followed by threat to charge-sheet him and to avoid bribe being demanded, such story of complainant is also rendered doubtful on the testimony of DW 1 as he stated that, on that day, complainant had asked him to visit his hotel as he was not there and some matter has taken place there. Therefore, the aspect of initial demand has come under shadow of doubt. 15. To sum up, here, there is doubt whether there was any motive for putting up demand because admittedly, no criminal action is shown to be initiated, leave aside filing of charge-sheet, on the threats of which bribe was allegedly demanded. As pointed out, accused was merely police constable and was thus not in a position to charge-sheet accused. Therefore, the motive for demand itself is rendered doubtful. There is no work of complainant with accused. I.O. in paragraph 12 of the cross has admitted that, he was not aware whether any action was taken on the complainant on the basis of alleged raid to the hotel of complainant. I.O. rather admits complainant and customers were released after due warning. Therefore, here, the motive to put up PAGE 9 OF 10 APEAL-48-2015.odt demand of bribe itself has not been substantiated. Though it is settled position that, person may not actually be in a position to perform the work for which bribe is allegedly demanded, would not itself be sufficient to exonerate him. However, it is equally settled law that, proof of demand is sine qua non to prove action under Section 7 and 13 of the Act. Secondly, here, PW 2 shadow panch, who is looked upon as crucial witness, in his cross has admitted that, he did not hear the telephonic conversation between complainant and accused. There is doubt about exact location where demand verification was drawn in view of variance in testimony of complainant and shadow panch. Therefore, the story of prosecution is not completely free from doubt, hence, impugned order cannot be said to be erroneous or perverse. Hence, the following order is passed: ORDER Criminal Appeal stands dismissed. (ABHAY S. WAGHWASE, J.) Umesh PAGE 10 OF 10