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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.705 OF 2000

The State of Maharashtra

)….Appellant

V/s.

Gopal Ambadas Gawali

)

Age : Adult,

)

R/o Keshav Nagar Police Station

)

Block No.1, Solapur, Dist. Solapur

)....Respondent

----

Ms.Anamika Malhotra, APP for appellant.

Mr.Subodh N.Pathak for respondent.

[Mr.Jehangir Jejeebhoy Amicus Curiae.]

----

CORAM :K.R.SHRIRAM,J

DATE : 22.1.2020

ORAL JUDGMENT :-

1.

This is an appeal filed by the State of Maharashtra

impugning an order and judgment dated 20.7.2000 passed by the

Special Judge, Solapur acquitting respondent of charges under Section

7 (Offence relating to public servant being bribed), read with section

13(1)(d) and 13(2) (Criminal misconduct by a public servant) of the

Prevention of Corruption Act, 1988.

2.

On 6.1.2020 when the matter was called out, as respondent

(hereinafter referred to as accused) was unrepresented, this court

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appointed Mr.Jehangir Jejeebhoy as an Amicus Curiae. Of course,

subsequently Mr.Subodh Pathak appeared for accused. Before I

proceed with the case, I must express my appreciation for the

distinguished assistance rendered by Mr.Jejeebhoy, learned amicus

curiae.

3.

Heard the counsel and also perused the record &

proceedings, the evidence as well as the impugned judgment.

4.

The prosecution’s story in brief :

(a)

Accused was working as a Police Head Constable at

Solapur, Taluka Police station, Solapur Rural, Dist. Solapur at the

relevant time. On 18.2.1997 at about 2.00 p.m., complainant Dhanaji

H.Rathod (PW-3) met accused at his residential quarter in Keshav

nagar at which time accused told complainant, i.e., PW-3 that PW-3

was involved in a prohibition case under section 66-B of the Bombay

Prohibition Act under Taluka Police Station Jurisdiction and accused

was investigating that case, and PW-3 was going to be arrested and

probably externed and to show favour demanded a sum of Rs.1500/-

as bribe. PW-3 claims to have fallen at the feet of accused saying that

no such action be taken against him, at which time accused demanded

Rs.1500/- as bribe. PW-3 pleaded his inability to give such a large

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amount because he was unemployed, has given up all his illicit liquor

business and now working only as a part time labour.

(b)

PW-3 bargained and brought down the amount to

Rs.1000/- and accused informed PW-3 to bring the amount on

19.2.1997 at about 10.00 to 10.30 a.m. in Suresh Cycle Mart near

S.T.bus stand. When PW-3 went to Keshav Nagar, i.e., to the resident

of accused, he was taken on motor cycle by brother-in-law of PW-3

one Dhanaji Pawar, who has not been examined. Dhanaji Pawar,

after PW-3 met accused, dropped PW-3 at about 2.30 p.m. near one

Panjarapol chowk. PW-3 thought over the matter and felt that accused

will not let him live in peace and decided to complain to Anti

Corruption Bureau. PW-3 thereafter went over to the office of Anti

Corruption Bureau, met API Ghuge (PW-8) who is the Investigating

officer and narrated his complaint to PW-8. PW-8 patiently heard

PW-3 and noted down the complaint in his handwriting but in the

words of PW-3. Simultaneously, PW-8 addressed a letter to M.S.E.B to

depute two persons as panch witnesses and those persons reached

office of A.C.B at 5.30 p.m. After narrating the facts and completing

the preliminaries, a pre trap panchanama was prepared by PW-8.

After pre trap panchanama was prepared, complainant and panch

witness were directed by PW-8 to report again in the office of A.C.B at

6.00 a.m. on 19.2.1997. After detailed instructions were given,

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complainant, the panch witnesses, PW-8 who is the Investigation

officer (I.O) and Deputy Superintendent of Police one Mr.Thorat and

few other constables being the raiding party went to trap accused. I

have to note that apart