TOLARAM RELUMAL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS is an appeal against the order passed by the Presidency Magistrate, 19th Court, convicting the two appellants of the offence under Section 18 (1) of Bombay Act 57 of 1947 and sentencing them each to rigorous imprisonment (or two months and a fine of Rs. 1,200, in default rigorous imprisonment for six weeks. The prosecution case was that the two appellants were the owners of Jai Hind Mansion situated at Sitaldevi, Bombay, and on 23-11-1950, as such owners they received through Mathura-das from the complainant Shankar Das Gupta Rs. 2,400 as premium as a condition for the grant of the lease of Block No. 15 in the said premises. The two landlords and Mathuraclas were, therefore, charged with having committed an offence under Section 18 (1) of Bombay Act 57 of 1947, while Roshanlal, who had assisted the three accused in receiving the said amount from the complainant, was charged with the commission of the said offence under Section 18 (1) read with Section 109 of the Indian Penal Code. The learned Magistrate has found that the charge against accused Nos. 1 to 3 has been proved, but not against accused NO. 4. That is why he has convicted accused Nos. 1 to 3 and has acquitted accused No. 4.

(2.) AT the Hearing of this appeal, Mr. Lulla has, no doubt, challenged the findings of fact recorded by the learned Magistrate against his clients. But during the course of his arguments he contended that even if it is held that his clients had accepted Rs. 2,400 from the complainant as alleged by the prosecution, they cannot be said to have committed the offence under Section 18 (1) of Bombay Act 57 of 1947. His argument is that though they may have received Es. 2,400 from the complainant, the said amount cannot in law be held to be a premium in respect of the grant of a lease. Mr. Lulla has fairly invited our attention to the fact that the point of law which he thus seeks to raise before us is covered by two decisions of this Court in - 'mahadeo Shridhar v. The State', Criminal Revn. Appln. No. 1178 of J949, D/- 25-1-1950 (Bom) (A) and - 'jodhasing J. Uttamsingh v. Section M. Bhatt', Criminal Revn. Applns. Nos. 46 to 48 of 1951, D/- 29-3-1951 (Bom) (B ). Both these judgments have been delivered by Bavdekar J. and my brother Chainani, and Mr. Lulla's contention is that at the time when these judgments were delivered some aspects of the question were not placed before the learned Judges and some decisions which have taken a contrary view were not cited before them. The learned Government Pleader then suggested that the point sought to be raised by Mr. Lulla was of some importance, and if we felt that the two decisions which are against Mr. Lulla's contention should be reconsidered, it would be better if we refer this point to a larger Bench. That is why we propose to indicate the rival contentions urged before us and refer the matter to a Full Bench.

(3.) IN dealing with the point as to whether the appellants could be said to have received the amount in question in respect of the grant of a lease, it is necessary to mention some facts which are proved in this case. At the time when the complainant is alleged to have paid Rs. 2,400 to the landlords, the building Jai Hind Mansion had not been completed. Block No. 15 in this building which was intended to be leased to the complainant is situated at the south-west corner on the second floor of this building. It consists of two rooms, one small room, a bath room and a latrine. As the panchnama exh. K shows,