BISMILLAKHA SALARKHA PATHAN Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) HEARD Shri. Mardikar, Advocate for the appellants and Smt. Dangre, Additional Public Prosecutor for the respondent - State.

(2.) CRIMINAL Appeal No. 322 of 2002 is filed by the original accused No. 1 - Bismillakha Salarkha Pathan in Special Case No. 3 of 1995. Appeal No. 499 of 2002 is filed by original accused No. 2 in Special Case No. 3 of 1995 - Kisan Nagorao Chipade. These appellants, for the sake of convenience are hereinafter referred to as accused Nos. 1 & 2 respectively and both these appeals convicting both the accused of offences punishable under Sections 7 and 13 (1) (d) read with Section13 (2) of the Prevention of Corruption Act, 1988 and sentencing the accused to suffer R. I. for one year in respect of the offence punishable under Section13 (1) (d) of the Act and to pay a fine of Rs. 1,000/- in default to suffer R. I. for three months and further sentencing the accused to suffer R. I. for six months and to pay a fine of Rs. 1,000/-, in default to suffer R. I. for three months under Section7 of the Act and separately sentencing accused No. 2 to suffer R. I. for one year and to pay a fine of Rs. 2,000/- in default to suffer R. I. for nine months in respect of the offence punishable under Section12 of the Prevention of Corruption Act, 1988, are being disposed of together by this common judgment and order.

(3.) THE defence did not lead any defence evidence but the defence can be gathered through suggestions made to the prosecution witnesses as well as the explanation given in the 313 statements. It was a defence of accused No. 1 that the accusation against him were false. He contended that he was the incharge at outpost Nimba from 4.8.1993 and 18 villages including Andura were in his jurisdiction. He contended that Kailash was a criminal, who used to sell liquor and ganja. That on12.1.1995, he along with P. C. Solanke, Police Constable - Punjab had been to arrest Kailash as the warrant had been issued against Kailash and as he came to know that Kailash was distilling liquor, he and his party had gone in the direction of river in which direction Kailash was known to have gone. When they met him he was carrying a bundle of grass on his head, he was searched and it was found to conceal a liquor can of five liters. Accused No. 1 arrested Kailash and Kailash was abusing the police party and saying that he was known as Kailash Dada and he should be released. Accused No. 1 told him that he would give him bail and once they reached the village, Kailash was released in the prohibition case but was detained under the warrant issued by Belapur Court. Kailash threatened accused No. 1 that he should be released or he would involve accused No. 1 in a false case. Accused No. 1 did not yield to his threat and locked him up in the police lock up. He claimed that Kailash and his brother Gajanan and other members of the family had conspired to falsely implicate him. That he had never demanded or received any money. Accused No. 2 in his defence stated that he was a driver and used to deal with P. W.1 - Gajanan and used to fetch Cutlery articles for him from Akola to Nimba fata. He contended that he had made several trips for Gajanan and Gajanan was required to pay him an amount of Rs. 2,000/- by way of fare charges. He contended that on23.1.1995, he received a telephone call from Gajanan Tayde asking that he should come to Nimba fata shop for receiving the amount of fare due to him. Accused No. 2 told Gajanan that his fare charges would go waste and, therefore, asked Gajanan if he was willing to meet him. Gajanan again told accused No. 2 to come in the noon. Accused No. 2 came there in the noon. Gajanan came at about4. 00 to 4. 30 P. M. On meeting, accused No. 2 told Gajanan that he should be given the due amount of Rs. 2,000/ -. Gajanan told him to wait for some time as the money was with the guest. He told accused No. 2 that he would wait there and on the arrival of the guest, he would phone accused No. 2 from the pan stall. After about half an hour, Gajanan signalled accused No. 2 and hence accused No. 2 went near Pan stall. Gajanan took out the money and gave the same to accused No. 2, which he kept in his pocket. He claimed that he had made an entry in respect of money due to Gajanan in his diary. He claimed that he had no relation with accused No. 1 Bismillakha.