MOHAMMAD MOINUDDIN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this appeal by special leave, on behalf of the first accused, the judgment dated August 3, 1968 of the Bombay High Court in Criminal Appeal No. 1749 of 1966 confirming the appellant's conviction and sentence, is challenged. The appellant, at the relevant time was the Sub-Registrar at Kannad. The appellant along with two others, namely, the clerk accused No. 2, and the peon, accused No. 3, were tried by the Special Judge Aurangabad and convicted of the offences Under Section 161 read with sec 34 of the Penal Code, 1860 and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. The appellant was sentenced to 18 months' rigorous imprisonment and a fine of Rs. 500/-. In default of payment of fine he was sentenced to undergo six months' rigorous imprisonment. Accused No. 2 was sentenced to one year's rigorous imprisonment and a fine of Rs. 250/-Similarly in default of payment of fine he was sentenced to undergo three months' rigorous imprisonment. Accused No. 3 was sentenced to nine months' rigorous imprisonment and to pay a fine of Rs. 50/-and in default was to undergo one months rigorous imprisonment.

(2.) The prosecution case in brief was as follows: One Shaikh Amin, who was the owner of Survey No. 35 had contracted to sell some time in 1962 10 acres from and out of that survey number to Keshav for and on behalf of his joint family for a price of Rs. 3000/-. One Atyaji had four brothers and Ramrao was one of them. Bhikan, complainant (P.W. 2) was the son of Atyaji and Keshav was the son of Ramrao All of them were members of a joint family. The sale could not be finalised immediately because of the requirement of permission being given by the Collector under the Bombay Tenancy Act for effecting sales of lands. Later on the Act was amended and the Collector's permission was no longer necessary. The parties decided to complete the transaction, and accordingly on February 8, 1966, Bhikan purchased the requisite stamp paper for the sale deed. The sale deed Ex. 20, as finalised, and engrossed on the stamp paper was prepared by the document writer Devidas (P.W. 3) on February 9, 1966. After the sale deed was executed by Shaikh Amin, it Was taken to the Sub-Registrar's Office at Kannad on February 9, 1966 at about 3 or 3.30 p.m. by Bhikan. He was accompanied by Keshav, Atyaji, the scribe Devidas, Ramdas, the vendor Shaikh Amin and one Punjiaji. Keshav presented the sale deed Ex. 20 to the appellant for registration and inquired about the Registration charges to be paid by him. The appellant is stated to have replied that the registration charges would be about Rs. 30/-. The appellant is further alleged to have stated that unless the parties pay an additional sum of Rs. 30/-the document will not be accepted for registration. As Bhikan and Keshav did not have with them a sum of Rs. 60/-and as they further did not desire to pay any amount over and above registration charges, they came out of the Sub-Registrar's office At that time accused No. 2, who was the clerk, working under the appellant, followed them and is stated to have asked them to bring the sum of Rs. 60/-as demanded by the Sub-Registrar and that if the amount is not brought, the registration of the document could not be done.

(3.) P.W. 2 Bhikan approached the Anti-Corruption Police on February 10, 1966 at Aurangabad and made a complaint Ex-32 to the Deputy Superintendent of Police, Shri Aimen (P.W. 6). P. W. 6 applied anthracene powder on the six currency notes of Rs. 10/-each, brought by Bhikan and returned those notes to the latter with instruction to pay the same to the appellant when the demand for money was again made by him. P.W. 2 was also instructed to give the suitable signal as soon as the money was paid. P.W. 2. accompanied by the police party and the panchas came to the Sub-Registrar's office the same evening, but as the said office had by then closed, they went away. The next day that is, on February 11, 1966, Keshav, Bhikan (P.W. 2), Panch witness Ramrao (P.W. 1), the scribe Devidas (P.W. 3), Shaikh Amin and others went to the Sub-Registrar's office at about 12 noon. Being a Friday, the appellant and his clerk, accused No. 2, had gone for Namaz and they came to the office only at about 2.30 or 3 00 p.m. Keshav along with others, mentioned above, went to the appellant and presented Ex. 20 for registration. The appellant inquired whether they had brought the amount. After P.W. 2 answered in the affirmative the document was received by the appellant and on scrutiny of the document, he wrote out the receipt Ex. 21 in regard to the registration charges and handed it over to Keshav, who in turn gave it to P.W. 2 P.W. 2 offered the amount as required by the appellant; but the latter directed him to pay the amount to the clerk, accused No. 2, and also pointed out the place where the clerk was sitting. P.W. 2. accordingly went to accused No. 2 and handed over to him the six-ten rupee notes. As the registration charges came to Rs. 27 80 p P.W. 2 required accused No. 2 to return the balance due to him Accused No. 2 accepted the sum of Rs. 60/-and handed them over to accused No. 3. with a direction to refund the sum of Rs. 2.20 p. to the complainant As change had to be obtained, one of the ten rupee note was given by accused No. 3 to Prem Shetti (P.W. 4) who had come to the Sub-Registrar's office. P.W. 4 took one ten rupee note and gave two five rupee notes to accused No. 3. Accused No. 3 retained one of the said notes and gave the other to P.W. 2. came out of the office for the ostensible purpose of getting the change for Rs. 5/-. After coming out of the officer, he gave the signal to the police party, who were wait-ting outside. P.W. 6, the Deputy Superintendent of Police along with the panch witnesses came to the office of the Sub-Registrar. There was no trace of anthracene powder found under ultra violet light in the hands of the appellant. But the presence of anthracene powder was found in the hands of accused No. 3, five currency notes of rupee ten each bearing anthracene powder and one currency note of Rs. 5/-were recovered. After investigation and obtaining the requisite sanction, the appellant, his clerk and the peon were charge sheeted for various offences, Substantially the charge was to the effect that on February 9, 1966, the appellant and the accused No. 2 demanded Rs. 30/-by way of bribe from P.W. 2. and they agreed to accept the same for themselves and the accused No. 3, as illegal gratification for registering the sale-deed Ex. 20 and that on February 11, 1966 the appellant once again demanded the bribe which was directed to be handed over to the accused No. 2. Accused No. 2, accepted the same for himself, the appellant and accused No. 3.