STATE OF MAHARASHTRA Vs. VITHAL TUKARAM DIVE

JUDGEMENT

(1.) THIS appeal has been preferred by the appellant under section 377 Cr.P.C. for enhancement of the sentence of the respondent. It appears that the respondent was tried and convicted for the offences under Section 161 IPC and under section 5(2) read with 5(1) (d) of the Prevention of Corruption Act, 1947 but, instead of sentencing him to jail and payment of fine, he was released under section 360 Cr.P.C. on probation of good conduct, on his entering into a personal bond of Rs.1,000/- with one solvent surety of the like amount, to appear in the Court for the said offences and to receive sentences whenever called upon by the Court and during the period of his bond, to keep peace and be of good behaviour.

(2.) THE prosecution case runs as under :- On the date of the incident i.e. 9-5-1979, the respondent was working as an employee of Municipal Corporation, Bombay. He was on the post of Mukadam in the Demolition department in 'M' Ward at Malvani. The complainant D'Mello, PW 1, constructed a temporary wooden shed within the compound of his house without prior permission of the Corporation sometime in 1978. Hence, notices under section 354A, 351 and under section 488 of the BMC Act, 1888, were served upon him sometimes towards the end of 1978 and the beginning of 1979. In January/March, 1979, the respondent went to the house of the complainant to demolish the shed but, twice he did not do so on account of absence of the complainant.On the third occasion, one Corporator Mr.Acharya, PW 3 requested him not to demolish the shed as he said that he would move the Deputy Municipal Commissioner in the matter. The respondent however, persisted in threatening the complain-ant that he would demolish the said shed. On 7-5-1979, the complainant met the respondent in his officer and asked him not to demolish the shed, and the respondent agreed and is alleged to have told him that if he paid Rs.400/- he would ensure that in the process of demolition of the shed, minimum harm would be caused to him. He also told him that on further payment of Rs.2000/-, he would suggest the idea of reconstruction of the shed to the authorities. The complainant agreed to pay him Rs.400/-. On 9-5-1979, the complainant went to the Anti-Corruption Department, Bombay and lodged a complaint Exhibit 9. The same was recorded by Police Inspector Naik PW 7. By about 12.30 p.m. crime was registered. The services of two peons from the office of Collector, Bombay were requisitioned. The complainant's case was explained to the panchas Four currency notes of Rs.100/- brought by the complainant were smeared with Anthracene powder. A demonstration was made. The notes were kept in front pocket of T-shirt of the complainant. He was instructed to pay the money to the respondent on demand. He was also instructed that when he gave money to the respondent, he should take out handkerchief from left pocket of his trousers and place it on his shoulders. At about 3.50 p.m. the complainant, panch More (PW 2) followed by second panch went to Chembur garden. They saw the respondent in the canteen of the office. There, the respondent asked the complainant whether he had brought the money and on his answering in the affirmative, he gave him and panch More tea. He also told him that since the architect had complained about the shed, it would have to be demolished, but, he would demolish it by giving previous intimation and that too in such a manner, that minimum harm would be caused to him. The respondent asked the complainant to pay Rs.400/- as agreed. The respondent then took the complainant and panch More to the club room of the office and there he asked the complainant to pay him the money.The complainant gave him the said notes and the respondent kept them in the left hip pocket of his trousers. The complainant immediately gave the prearranged signal. The police rushed and the respondent was apprehended on the spot and anthracene powder was found on the left palm of his finger tips of the first phalanges of his right palm and on the inner lining of hip pocket of his pant. Powder was also found on the right palm of PW 1.The conversation between the respondent and the complainant was disclosed by panch More (PW 2) to Inspector Naik PW 7. It was incorporated in the post-trap panchanama.

(3.) IN the beginning of the trial, the respondent pleaded not guilty to the charges levelled against him. However, before his final state-ment under section 313 Cr.P.C. being recorded, he filed an application pleading guilty. In the said application, he admitted the entire prosecution evidence. Hence, he was convicted and sentenced in the manner stated above.