KANU AMBU VISH Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) :This appeal is by Special Leave against the Judgment of the Bombay High Court which reversed the order of acquittal of the Appellant passed by the Special Judge, Thana and convicted him of an offence under Sec. 161 I. P. C. as also under Sec. 5 (1) (d) read with Sec. 5 (2) of the Prevention of Corruption Act for demanding and accepting illegal gratification of Rupees 25/-.

(2.) The Complainant Bommayya Bondayya Dhanpilley, P. W. 1 was running a Hotel at Bhiwandi, where he would prepare and serve customers meals and tea for which a Hotel licence was obtained by him under the Public Entertainment Rules made under the Bombay Police Act. The licence was current for the year January 1, 1965 to December 31, 1965. According to P. W. 1 he entered into an agreement with his friend one Sidhu Korga Shetty P. W. 10 on the 18th January, 1965 Ex. 9 under which P. W. 10 agreed to take the hotal on rent for 11 months from 11-1-65 at Rs. 100/- per month and to pay an advance of Rs. 1,000/-. It also appears that under Rule 5 of the Public Entertainment Rules a licence granted under Rule 3 was not transferable but was for the benefit only of the person to whom it was granted. So that even on the death of such person, it was deemed to have been revoked at once. Further under Rule 8 no person keeping a place of public entertainment shall be absent without the previous permission of the District Magistrate and no such person shall at any time permit any other person to act for him in the management of such place without the like permission similarly endorsed.

(3.) The case of the prosecution is that on 17-1-65 the Appellant who in the beginning of 1965 was working as Head Constable at Bhiwandi Police Station visited the Complainant's Hotel at about 6 p.m. where he found the Complainant at the Galla and Shetty, standing by his side. The Appellant enquired whether Shetty's name was shown in the licence. The complainant then told the Appellant that Shetty was his friend so that he helps him in the Hotel affairs. The Appellant however, was not satisfied with this explanation and told the Complainant that he would file a case because Shetty was working as a Manager at the Galla though his name was not shown in the licence. It is further the case of the prosecution that after some discussion the Appellant said that if he would pay Rs. 30/- per month until the name of Shetty was entered in the licence, he would be satisfied. The complainant pleaded that his business was not such as to permit him to pay the amount demanded. On hearing this the Appellant went away. The next day P. W. 1 and P. W. 10 had gone to the Mamlatdar's office, gave an application for Sugar and were returning when the Appellant met them. He called the Complainant and informed him that he had filed a case against him and that he the Complainant should deposit Rs. 5/- as security for his appearance. Though at first the complainant pleaded that he had no money he, however, paid this amount and obtained a receipt in the name of Shetty. On 6-2-65 at about 4 p.m. P. W. 1 met the Appellant at Kalyan Naka when he was told by the Appellant that another case would be filed against him and his licence would be cancelled. P. W. 1 said that he was a poor man and could not pay so much but the Appellant insisted that Rs. 30/- should be paid. However the demand was reduced to Rs. 25/- p.m. which P. W. 1 promised to pay the next day. When the Appellant enquired when he should come to collect the money. P. W. 1 replied that he should come on the 8th either in the morning or in the evening and the amount would be paid to him in the shop, after which they parted. P. W. 1 thereafter decided to inform the Anti-corruption authorities at Thana; so he came by Bus on 7-2-65 and narrated the incident to the Anti-corruption Officer who recorded his First Information Report as per Ex.10. The Complainant P. W. 1 was asked to come the next morning and after he had come there as directed at 8 a.m. the Complainant narrated to the two Panchas, Harishchandra Katkar P. W. Saud Pralhad Vishnu Patil P. W. 5 about the incident. He was then searched after which he produced 2 notes of Rs. 10/- and one note of Rs. 5/- before them, and a demonstration was given under ultra violet light before the anthracene powder was smeared and after. It appears that this anthracene powder glows a bluish colour under an ultra violet light. A Panchnama was prepared of what transpired. All the members of the raiding party washed their hands. After telling the Complainant that if the Appellant demanded the amount, it should be given and if he accepted the amount the Complainant was to inform the Anti-Corruption officers in respect of this, the raiding party went to Bhiwandi. On reaching Bhiwandi the Complainant along with the two Panchas, P. W. 3 and P. W. 5 went ahead and sat in his Hotel, while the other members of the raiding party went inside the house of a relative of the Complainant. It is alleged that the Complainant and the two Panchas sat in the Hotel from 10 a.m. till 5 p.m. when the Appellant came to the Hotel, and sat there. The Appellant then asked the complainant if he had given the application for getting the name of P.W.10 added in the licence to which the Complainant replied that he had. The Appellant then told the Complainant that he would be getting the application and said that when there is work for getting a licence people approach him and when the licence is given nobody cares or approaches the Police Officers. On his demanding the bribe of Rs. 25/- the Complainant took the notes and wanted to give to Appellant but the Appellant put forward an envelope which he was holding and told the complainant that he should put the amount in it. Accordingly the Complainant put inside Rs. 25/- through the mouth of the envelope which was opened by the Appellant but it appears that the upper portion of the notes were getting out so the Appellant who was holding the envelope in his right hand tapped them inside the envelope with his left hand, after which he kept the envelope on the table, took out his uniform cap with the left hand and put it on the envelope. It is claimed by P. W. 3 and P. W. 5 that they had seen everything that had transpired between the Appellant and the Complainant. Immediately after the Appellant kept his cap on the envelope the Complainant went out and called the Anti-corruption Officers informing them that the Appellant had demanded the money and he had paid the amount to him. The members of the raiding party led by P. S. I. Parab P. W. 12 then came there and it is said that the hands of the Appellant were examined under the ultra violet light when a thin line of white powder was seen on the three fore-fingers of the left hand of the Appellant. When the envelope was searched it contained Rs. 25/-, two ten Rupee Notes and one of Five Rupee note, which when examined showed anthracene powder. The envelope was examined and it also showed evidence of anthracene powder but when the cap of the Appellant was examined no powder was found on it. The Complainant P. W. 1's hands were also examined and it was found that there was powder on his right hand and also on his hip pocket. Panchanamas were drawn up in respect of these matters and other formalities completed such as the taking of the statements from Bhondu Bhiku Aire P. W. 11 who was present there and who was asked to write it in his own hand which he did. Supplementary statements also were taken from P. W. 1 and P. W. 5 by about 7.15 p.m. while other statements were completed round about 9.30 p.m. after which the members of the raiding party returned to Thana and there found that the bottle containing the Anthracene powder with the seal was in tact. The statement of Panch Katkar P. W. 3 was recorded that night while that of Panch Patil P. W. 5 was recorded the next day and of the Head Constable Tukaram Jangam and the Clerk, Laxman Rokade on 15-2-65.