VITHAL KESHAV THORAT Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is preferred by the original accused No. 1 against the judgment and order dated 13th December, 1984 convicting him for the offences under Section 161,i. P. C. and Section 5 (1) (d)read with Section 5 (2) of the Prevention of Corruption Act. He has been sentenced to suffer R. I. for one year and to pay a fine of Rs. 500, in default to suffer R. I. for 3 months on each count. The substantive sentences have been made concurrent. The original accused No. 2 has been acquitted by the lower Court.

(2.) THE facts giving rise to this appeal are as under :--The appellant at the material time was working as Talathi at Manmad in Nasik District. It is not in dispute that he was a public servant within the meaning of Section 21 of the Indian Penal Code as being an employee in the Revenue Department of the Government of Maharashtra and was removable by the Sub-Divisional Officer, Malegaon Division, Malegaon district Nasik. Yadgiri Krishna, PW 1, was running a ten stall at Manmad. On 23-3-1981 he purchased a plot of land admeasuring 33'x36' situated at manmad from two persons viz. , Bagul and Walekar. That area formed part of Survey No. 380. Similarly, he had purchased one built room from the said survey number from one Umar Alli on 22-2-1980. It was the case of the prosecution that althoug he was requesting the appellant as the talathi to make mutation entry in the 7/12 Extracts, the appellant kept on postponing the same and eventually demanded Rs. 200 for effecting the necessary entry. On 5-5-1983 PW 1 gave two separate applications requesting for effecting the mutation and issuing copies of 7/12 extracts in that respect. The appellant allegedly told him that unless he brings the amount of Rs. 200 the work will not be done and even after that money was brought mutation entry in respect of the plot alone would be effected as consent of the owners would be required for effecting mutation in respect of the room- The appellant told him to bring the amount on 7-5-1983 at his office. PW 1 reported the matter to the Anti-Corruption Office at nasik on 6-5-1983. PWI Pawar, PW 6, after recording the complaint of of PW 1 at Exhibit 15 obtained permission to investigate from the Chief judicial Magistrate, Nasik, and set up a trap for 7-5-1983. On 7-5-1983 the raiding party which included panch witness Shaikh, Fakir Mohamed, pw 2 and P. S. I. Pawar, PW 6, accompanied by PW 1 (hereafter referred to as the complainant) proceeded to the office of the appellant at about 11 a. m. Earlier to that the pre-trap panchanama was made and currency notes of the value of Rs. 200 were marked with anthracene powder. The marked notes were kept in the shirt pocket of the complainant. When the raiding party reached near the office of the appellant, the complainant and panch witness Shaikh entered the room where the appellant was sitting in his office the-other panch Musale and P. S. I. Pawar remained outside. It was the case of the prosecution that after the complainant and punch witness Shaikh entered his office, the appellant was found engrossed in some work. The complainant enquired about his work whereupon the appellant told him that his work would not be done immediately and he should come at about 3 p m. Thereafter the complainant and Shaikh sat on the bench outside his room for about 15 minutes and the complainant once again went to the appellant and requested him to make an entry in respect of his plot and room and give him the extract. The appellant thereupon asked him as to whether he had brought the amount as was told by him The complainant replied that he had brought the money whereupon the appellant told him to give it to him. The complainant then took out the amount from his shirt pocket by his right hand and the appellant took that amount by his left hand and put it in the left pocket of his safari shirt. The appellant thereafter instructed his assistant to prepare the extract and started making some entries. The appellant also took an amount of Rs. 3 from the complainant for paying to his assistant. After a while, the appellant banded over the extract to the complainant. His signature was taken on a notice and he was informed that entry would be effected in respect of the room after signature of the vendor was brought or he was produced before him. The complainant then put the extract of 7/12 in his pant pocket and went out of the room along with Shaikh who had all the time been standing with him and was watching what had transpired. After coming out of the room, he gave the agreed signal by waiting the cloth bag whereupon PSI Pawar and the other panch and constable rushed into the office of the appellant. PSI Pawar disclosed his identity to the appellant. He asked the appellant whether he had obtained amount as bribe from the complainant. The appellant started looking around and tried to get up from his chair. His hands and clothes then were examined under ultra violet lamp. Traces of anthracene powder were found on three fingers of the left hand at the tips as also at the mouth of the left hand safari shirt pocket as well as the inner side of that pocket. PWI Pawar then asked the appellant to produce the amount which the appellant took out from the pocket of his shirt and produced. The said notes were also seen under the ultra violet lamp and traces of anthracene powder were seen on them. The notes were tallied with the particulars mentioned in the panchanama, exhibit 17. They were seizod and kept in an envelope which was sealed. The shirt of the appellant was also seized. P. S. I Pawar also seized an extract of A Patrak from the register of the appellant. The appellant was also asked to produce the applications given by the complainant and after he produced them, they were seized and are Exhibits 21 and 22. Another panchanama, Exhibit 18, was then drawn and completed. Thereafter P. S. I. Pawar filed his complaint, exhibit 32 at the City Police Station, Manmad. He submitted a report together with the papers of investigation to the Sub-Divisional Officer, malegaon, for obtaining sanction to prosecute the appellant and original accused No. 2. The sanction was received from the Sub-Divisional Officer dated 20-2-1984. After completing the investigation, P S. I. Pawar submitted a charge-sheet against the accused on 24-3-1984 before the learned Special judge, Nasik. It was alleged by the prosecution that on 5-5-1983 the appellant had demanded an amount of Rs. 200 from PW 1 as illegal gratification for making entries in the record of rights in respect of the properties purchased by PW 1 and he accepted that amount from PW 1 on 7-5-1983 and thus he had committed offences punishable under Section 161 i. P. C and Secction 5 (l) (d) read with Section 5 (2) of the Provision of Corruption act, 1947.

(3.) THE learned Trial Judge framed the charge against the appellant for the aforesaid two offences. Jhe appellant pleaded not guilty to the, charge.