YUSUFALLI ESMAIL NAGREE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) In this appeal, the appellant challenges the legality of his conviction under S. 165-A of the Indian Penal Code. His wife Rukhanbai was the owner of two house properties in 'F' ward of the Bombay Municipal Corporation. The buildings were in a ruinous condition and she was served with notices under S. 354 of the Bombay Municipal Corporation Act requiring her to repair and secure them. The notices were not complied with and prosecutions under S. 471 of the Act were started against her in the Presidency Magistrate's court. The summonses issued to her were served by affixation and on her failure to appear in court a bailable warrant for her arrest was issued. One Munit Ahmed Shaikh, a notice clerk attached to 'F' ward building department of the Bombay Municipal Corporation, was entrusted with the duty of serving the warrant. The charge against the appellant was that ha offered to Shaikh on July 18, 1960, a sum of Rs. 25 and on August 2, 1960, a sum of Rs. 100 as a bribe for not executing the warrant. The appellant started making approaches to Shaikh from July 1, l960. Shaikh reported the matter to the municipal commissioner who directed N. W. Naik to investigate into the matter. Naik was the administrative officer of the corporation in charge of investigation of complaints regarding corruption, bribery and other malpractices. Over the telephone Shaikh arranged A meeting with the appellant in the evening of July 18, 1960 at the office of the India Metal Co., of which one A. M. Karachiwalla was the proprietor Naik under the assumed name of C. J. Mehta went with Shaikh to the office of the India Metal Co. In the presence of Naik, the appellant offered a bribe of Rs. 25 to Shaikh on July 18, 1960 but Shaikh did not accept the bribe.

(2.) On August 2, 1960 the appellant had a telephone talk with Shaikh and fixed an appointment at Shaikh's residence in the evening. Shaikh lodged a complaint with the Anti-Corruption Bureau reporting the offer of a bribe of Rs. 25 on July 18 and the appointment at his residence in the evening of August 2. After the complaint was recorded, S. G. S. I. Mahajan obtained the necessary permission from the Chief Presidency Magistrate to investigate into the offence. Mahajan decided to lay a trap. On a Sofa in the cuter room of Shaikh's residence he set up a microphone which was connected to a tape recorder in the inner room. The microphone was conceded behind books. Mahajan, a radio mechanic and other members of his party remained in the inner room. Shaikh stayed in the outer room. The outer room and the person of Shaikh were searched and no cash was found. At the appointed hour, the appellant came to Shaikh's residence and was received by Shaikh in the outer room. Shaikh and the appellant had an intimate conversation. The appellant offered a bribe to Shaikh, produced ten currency notes of Rs. 10 each and gave them to Shaikh. When Shaikh have the pre-arranged signal "Salim pan lag", Mahajan and other members of his party entered the outer room and found the currency notes in Shaikh's short pocket. The tape-recorder was switched on as soon as the appellant arrived and was switched off after the signal was given. The conversation between Shaikh and the appellant was recorded in the tape recorder. The tape remained in the custody of Mahajan. From the shorthand notes made after the tape was replayed one Yakub prepared a transcription of the conversation. The accuracy of the transcription is admitted. At the trial of the case, the tape-recorder was played in court.

(3.) The special judge for Greater Bombay found the appellant guilty of the offence under S. 165-A of the Indian Penal Code and sentenced him to simple imprisonment for 18 months and a fine of Rs. 500, in default further imprisonment for six months with the recommendation that he should be treated as class I prisoner. Karachiwalla, the proprietor of India Metal Co., at whose office the bribe of Rs. 25 was offered was charged at the trial with aiding and abetting the commission of the offence under S. 165-A, but was acquitted. The appellant preferred an appeal to the High Court. At the commencement of the appeal he waived formal notice for enhancement of the sentence. The High Court convicted the appellant under S. 165-A on both counts of the charge separately and sentenced him to rigorous imprisonment for one year on each count, the sentences to run concurrently, and a fine of Rs. 250 or in default rigorous imprisonment for three months on each count. The High Court declined to recommend class I to the appellant. Subject to this modification of the sentence, the appeal to the High Court was dismissed. The appellant has filed this appeal by special leave.