JANARDAN RAMCHANDRA PATIL Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order of conviction passed by the learned Special Judge, Greater Bombay in Special Case No.41 of 1988 dated 23rd August, 1990 thereby convicting the appellant under Section 161 of the I.P.C. and sentencing him to suffer R.I. for 1 year and to pay a fine of Rs.1500/- in default to suffer R.I. for 2 months. The appellant was also convicted for the offence punishable u/s. 5(1)(d) r/w.5(2) of the Prevention of Corruption Act, 1947 and sentenced to suffer R.I. for 1 year and to pay a fine of Rs.1500/- in default to suffer R.I. for 2 months. Substantive sentences were directed to run concurrently.

(2.) THE prosecution case in brief is that, the appellant-accused was chargesheeted for the offences punishable under Section 161 I.P.C. and under section 5(1)(d) r/w. 5(2) of the Prevention of Corruption Act, 1947 on the allegation that he demanded and accepted bribe for Rs. 3000/- from the complainant and Rs. 1500/- during the period between June, 1987 and November, 1987. THE appellant was working in the office of 'M' Ward of Bombay Municipal Corporation as Mukadam. His duties were contemplated to keep vigil in his area and to notice the unauthorised work of construction undertaken by the residents of that area. He was expected to notice such work and to report to the superior officials. THE complainant Omprakash Khiyaram Fulwaria was occupying Room No.57, Thakkar Bappa Colony, C.S.T. Road, Chembur, Bombay - 71. It reveals from the record that this room belongs to the father of the complainant and the procedure regarding transfer of ownership was in process at the time of the alleged incident. It is the case of the prosecution that the complainant had carried out some unauthorised repairs in the said room and for that, he did not obtain permission from the competent authority. On 20th July, 1987, it reveals that the complainant performed Muhurta ceremony for starting the repair work. It also reveals that the repair work was entrusted to one Shri Pyarelal. On 20th July, 1987, according to the prosecution, appellant-accused had gone at the place of the complainant and he took aside Shri Pyarelal and some talk had taken place between them. Pyarelal apprised the complainant about the talk between him and the appellant-accused and told him that as the repair work being carried out without the permission of the competent authority, he has to see the appellant-accused for settling the matter and to prevent him from demolishing the same. According to the prosecution, the complainant had gone to the office of the appellant-accused alongwith Pyarelal. It is alleged that appellant-accused demanded Rs.3000/- for settling the matter and to allow to proceed with the work. As the said amount was big one for the complainant to pay immediately to the appellant, he requested for some time and installments. It reveals that on 24th or 25th July, 1987, the complainant and Pyarelal went to the office of 'M' Ward and met the appellant. it is stated that at the time, the complainant paid Rs.1500/- to the appellant-accused. Further, it is alleged that the appellant-accused has also directed the complainant to make payment of the balance amount at the earliest. THE complainant managed for Rs.1000/- within two days and alleged to have paid on 28th July, 1987 in the presence of Pyarelal. Further, the remaining amount of Rs.500/- alleged to have been paid after two days. It is alleged that the complainant had paid Rs.3000/- to the appellant-accused as illegal gratification for not demolishing the unauthorised repair work carried out by him in his room. Further, it reveals from the record that in the month of September, 1987, the complainant felt that it is necessary to construct the loft in the room and for that he also engaged one carpenter. At that time, it is alleged that the appellant-accused had gone to the room of the complainant but the complainant was not present in the house. THErefore, the appellant-accused told the carpenter to convey message to see the appellant-accused, at his office. However, the complainant ignored that message and directed the carpenter to proceed with the work. It is alleged, that again on 19th November, 1987, the appellant-accused had gone to the room of the complainant. At that time, complainant was not present. THErefore, a message was kept with Purshottam the brother of the complainant, for the complainant that he should see the appellant at his office.

(3.) HEARD the learned counsel Mr. Barday for the appellant. It has been submitted by the learned counsel that the prosecution evidence against the appellant-accused is the shaking evidence and no conviction could be based on the evidence of the witnesses who are interested witnesses. It has been submitted that the evidence regarding first instance of accepting bribe from the complainant, is not proved. The learned Judge has committed an error in accepting the evidence of two witnesses i.e. Pyarelal (p.w.9) and the complainant himself (p.w.1). Further, it has been contended that the complainant has not disclosed the offence immediately but he has filed complaint before the A.C.B. Inspector on 27th November, 1987, the prosecution has failed to prove the demand of money and acceptance of the bribe from the complainant. The evidence regarding anthrecene powder on the notes and marks on the finger of the complainant and the accused-appellant, according to panch witness is contradictory and the evidence of panch witness is full of infirmities. Therefore, the appellant-accused is entitled for the benefit of doubt. In the absence of independent witnesses, the evidence of the prosecution witnesses who are got up witnesses should not be believed and their evidence should be discarded. Lastly, the learned counsel has submitted that the due sanction required under section 19(sic) of the Prevention of Corruption Act is not validly accorded and the same has vitiated the prosecution.