STATE OF GUJARAT Vs. JIVARAJ MANJIBHAI PATEL

JUDGEMENT

(1.) The State has appealed against the acquittal of the respondent for the offences under Sec. 161 of the I.P.C., and Sec. 5(1)(d) read with Sec. 5(2) of the Prevention of Corruption Act, 1947 by the judgment and order dated 8-5-1986 passed in Special Case No. 1 of 1985 by the Special Judge, Amreli. The respondent, who was at the relevant time serving as a Talati-cum-Mantri of Nana Machiyala - Giriya group of villages, was charged on 28-4-1986 for the said offences on an allegation that while he was working as a Talati-cum-Mantri, he had demanded an illegal gratification of Rs. 1,000.00 from the complainant Abidhusain Akbarali, a resident of village Giriya for ensuring that mutation entries are not made in the record of rights in favour of the vendees of land which was sold by the father of the complainant under a sale-deed executed in their favour and that for that purpose, the accused had accepted illegal gratification of Rs. 500.00 on 8-3-1984 from the complainant thereby committing offences under Sec. 161 of the Indian Penal Code and under Sec. 5(1)(d) read with Sec. 5(2) of the Prevention of Corruption Act, 1947.

(2.) . The prosecution case is that the complainant's father executed a sale-deed in favour of Popat Thakarshi and Rasilaben Popat for the lands bearing survey Nos. 85/1 and 85/2, which were sold to them for a total sum of Rs. 44,000.00. On receipt of the intimation of the said transfer, the accused who was Talati-cum-Mantri was required to enter a report in a register of mutation and to notify the entry in a conspicuous place in the village Chavdi. with written intimation to all persons appearing from the record of rights or register of mutations to be interested in the mutation, and, to any other person whom he had reason to believe that he was interested therein, as required by Sec. 135D(2) of the Bombay Land Revenue Code, 1879. Accordingly, mutation entry Nos. 531 and 532 were made by the accused on 15-7-1983 and the accused had issued notices as required by Sec. 135D(2) of the Bombay Land Revenue Code. In response to this notice, the complainant filed his objection application on 1-8-1983 by presenting it in person before the accused against the making of such mutation entries, on the ground that he had a share in the property, which he had inherited along with other heirs including his father and therefore, his father could not have sold the entire land to the vendees. The complainant had also filed a civil suit in the Court of Civil Judge (S.D.) for a declaration that the said transaction was invalid and not binding on him. The objection of the complainant was noted by the accused against these entries in village form No. 6 and the papers were forwarded on 7-10-1983 to, the Mamlatdar. who, by virtue of sub-sec. (6) of Sec. 135D of the said Code was empowered to certify the entries in the register of mutation. The complainant had also sent his objection application to the Mamlatdar on 4-8-1983, who sent the matter to the accused for enquiry. The case of the prosecution is that in this background, the complainant was required to attend the office of the Mamlatdar where even the accused used to come on the dates fixed for hearing of his objections. On 24-8-1983 when the complainant had gone to the Mamlatdar's Court for that purpose, the accused was also present and after the matter was adjourned, he met the complainant outside the Mamlatdar's Court and told him that if the complainant did not want entries to be made in favour of the vendee Popat Thakarshi and Rasilaben Popat, then according to the Mamlatdar, a sum of Rs. 1,000.00 will have to be paid. The complainant told him that he would think about it. Thereafter, the matter was being adjourned from time to time. By registered post, A. D. dated 2-3-1984, the Mamlatdar had informed the complainant's Advocate about the next date of hearing, which was to take place on 14-3-1984 in respect of the objection application of the complainant. According to the prosecution about four days prior to 6/03/1984, the accused had met the complainant in the market of Amreli and demanded a sum of Rs. 1,000.00 from him to ensure that the said mutation entries are not made. Thereafter, on 6-3-1984, the accused again on the road near Roopam Talkies, demanded from the complainant Rs. 1,000/- and at that time the complainant told him that he cannot give the entire amount at a time. Thereupon, the accused told him to pay Rs. 500.00 initially and thereafter pay the remaining Rs. 500.00. The complainant told him that he would get his salary on 7/03/1984. out of which he would give him Rs. 500.00. The accused told him that he would on 8/03/1984, come to his house at village Giriya between 10-00 a.m. and 12-00 noon and take the amount of Rs. 500.00. which he must keep ready. According to the prosecution, since the complainant was not intending to pay any such illegal gratification, he went to the office of the Anti- Corruption Bureau at Amreli on 7-3-1984 in the evening and gave his complaint Ex. 9. After the recording of the complaint, he was asked to come to the office on the next day morning, i.e., on 8-3-1984. On that day, he reached the office at about 4-15 a.m. and panchas were called before whom his complaint was read over and they put their signatures thereon and the first part of the panchnama was drawn, in which the procedure regarding the application of anthracene powder on the five currency notes of rupees hundred each which were brought by the complainant, was recorded along with other particulars and the raiding party along with the complainant and the two panch witnesses proceeded to village Giriya after the first part of the panchnama was over at about 5-35 a.m. Giriya is a village very near to Amreli and a cyclist can reach within 15 minutes. The member of the raiding party and the complainant proceeded in a jeep halted it at some distance and entered the house of the complainant along with him. The house consisted of a living room admeasuring 3.12 Mtrs. x 2.84 Mtrs. There was another room to its south which was having a door frame without doors in the wall to the south of the sitting room. There was a curtain hanging on that entrance which had holes in it. In the said southern room, the Police Inspector Mr. Zala and two panch witnesses were to wait for the incident. It was a small room admeasuring 2.04 Mtrs. x 2.64 Mtrs. having a cot. According to the prosecution, the persons sitting in that southern room could see and hear what happens in the sitting room. In the sitting room, there was a cot placed towards its northern wall and opposite to that, there was a chair facing the cot. The prosecution version is that the other members of the raiding party sat in the room on the eastern side of the sitting room, the common wall of which was about 6 ft. high with the rest of upper portion open, so that those who sit in that room could hear whatever was said in the sitting room. There was a door from the said eastern room opening in an Osri towards its south in which Osri a door also fell from the aforesaid southern room in which the Police Officer and panchas were sitting, which door, according to the prosecution, was closed. Till 9 O'clock morning, they sat in the sitting room and thereafter. Inspector Zala and two panchas positioned themselves in the southern room while the other members of the raiding party sat in the eastern room. At about 12-00 noon the accused entered the sitting room of the complainant's house and sat on the chair opposite the complainant, who was sitting on the cot. The prosecution case is that when the accused entered, the complainant welcomed him and he sat on the chair. After some time, the complainants father entered the room and he went inside, in the other room. The complainant told the accused to get the work done by telling the Mamlatdar, since it was causing much loss to him. The accused thereupon told him that he had gone to the Mamlatdar's office and the Mamlatdar had proceeded on a month's leave. The accused then asked the complainant as to what had he done about what was told to him. Thereupon, the complainant took out the five, hundred rupees notes from his bush-shirt's pocket and gave them to the accused. The accused had at that time said "all right give it" and accepted the amount and counted the same. At that time, the complainant gave the pre-arranged signal by shouting "cha muko" (prepare tea). Immediately thereafter, Inspector Zala and panch witnesses and other members of the raiding party went there and the accused was apprehended with the treated currency notes in his possession. Necessary procedure was done and anthracene powder marks were noted on the thumb, fingers and palm of the left hand of the accused and also on three fingers and the palm of his right hand. The currency notes were duly identified in presence of the panchas to be the same notes which were treated and referred to in the initial part of the panchnama. The prosecution case is that at the time when the accused was caught red -handed with the treated currency notes, he did not say anything except that he was falsely involved. After the panchnama was drawn, statements were recorded and after the statement of the accused was recorded, further statement of other witnesses were also recorded. According to the prosecution, the accused thus, committed the offences with which he has been charged.

(3.) . The accused has chosen to examine himself on oath and the defence that is taken up by him in his deposition Ex. 46 is that he had issued notices to the concerned parties under Sec. 135D(2) of the Bombay Land Revenue Code in respect of the entries in the mutation register inviting objections and the complainant had given his objection application on 1-8-1983 against the making of these entries which objection was noted in the register by him and the papers were forwarded to the Mamlatdar, Amreli. According to the accused, the complainant had filed a Civil Suit No. 56 of 1983 in the Mamlatdar's Court in which he was required to remain present on 7-9-1983. The accused has also stated that he had given a notice to the complainant's father Akbarali Mahmadmiya for the recovery of the Government dues and that notice was sent under the signature of Taluka Development Officer. The defence of the accused on oath is that on 6/03/1984, he had gone for recovery of the Government dues to village Giriya and on that day, the complainant's father met him in the bazaar. When the accused asked him to pay up the Government dues, the complainant's father told him that he did not have the money at that time, but his son who was serving in the State Transport Corporation would get his salary on 7th and that the complainant's father would pay some amount towards the Government dues on 8-3-1984. The accused has further stated in his defence on oath that on 8-3-1984, while he was going from Amreli to Nana Machiyala, when he reached Giriya at about 11-30 a.m. on his bicycle, Akbarali, the complainant's father stopped him by giving a shout and therefore, he got down from his bicycle. According to the accused, the complainant's father told him that his son had received his salary and that he should come to his house so that some amount can be given towards the Government dues by him. The accused, therefore, went along with him to his house. When he entered the living room, he saw that the complainant was sitting on the cot and he sat opposite him on a chair. According to the accused, the father of the complainant straightaway went into the house and he thought that he had gone to fetch water for him. The defence version further is that thereafter, the complainant told him that he was paying Rs. 500.00 towards Government dues, which may be credited and so saying he had placed the amount in his left hand. According to the accused when the complainant took out money from his pocket, he had shouted "cha muko" (prepare tea). According to the accused, when he counted the money which was put in his left hand, four or five persons came running there and Inspector Zala introduced himself. The amount was taken from him and anthracene powder detection procedure was done. According to him, at that time he had said, when asked by Inspector Zala about the amount, that the amount was taken towards the recovery of Government dues and that he was falsely trapped. The defence version in paragraph 7 of the deposition of the accused is that he had never met the complainant and that he had never asked for any bribe from him.