AVINASH SITARAM GARWARE Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The appellant (for the sake of brevity, "the accused") was tried in the court of Special Judge, Thane in Special Case No.13 of 1999 for offences punishable under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (for short, "the said Act"). By the impugned judgment and order dated 14/5/1996 the learned Special Judge convicted the accused for the offence punishable under section 7 of the said Act and sentenced him to suffer RI for one year and to pay a fine of Rs.500/-, in default, to suffer further RI for three months. The accused was also convicted for offences punishable under section 13(1)(d) read with section 13(2) of the said Act and sentenced to suffer RI for one year and to pay a fine of Rs.500/-, in default, to suffer RI for further three months. Substantive sentences for both the offences were ordered to run concurrently. Being aggrieved by the said judgment and order, the accused has preferred this appeal.

(2.) It would be advantageous to begin with the gist of the prosecution story as evident from the evidence of PW-1 Prakash Patil, the evidence of PW-2 Ganesh Waghchoure and PW-4 PI Kedu Devde. Admittedly, in the year 1999, the accused was Talathi of Village Kon, Taluka Bhiwandi, District Thane. The complainant PW-1 Prakash Patil is an agriculturist by profession. He owns land bearing Survey No.71, Hissa No.1, Survey No.75, Hissa No.2 and Survey No.78 at Bhayander which was subsequently disposed of by him in the year 1991. After selling the land situate in Bhayander, he purchased 26 gunthas of land of Maruti Vithu Patil out of Survey Nos.7/4, 7/5, 18/3 and 18/4 of Village Kon for Rs.58,000/- by registered Sale Deed dated 7/2/1991. After the Sale Deed was registered with the Sub-Registrar, Bhiwandi, PW-1 Prakash Patil went to the place of the accused in the month of March, 1991 for getting the land mutated in his name. The accused told him that he will have to pay money for that work. PW- 1 Prakash Patil again went to the office of the accused on 9/3/1991 and 10/3/1991 but the accused was not available. On 3/7/1991, he went to the house of the accused and demanded 7/12 extract and a certified copy of the mutation in respect of the newly purchased land. According to PW-1 Prakash Patil, the accused told him to come with Rs.500/- on 5/7/1991 to his house for 7/12 extract.

(3.) On 4/7/1991, PW-1 Prakash Patil went to the office of the Anti Corruption Bureau at Thane (for convenience, "the ACB, Thane") and lodged his complaint (Ex-10). PW-4 the Investigating Officer PI Devde wrote a letter (Ex-22) to the RTO, Thane to requisition services of two clerks to act as panchas. Pursuant to that letter, the RTO, Thane made two clerks available to act as panchas. They are Vasant Sawant and PW-2 Ganesh Waghchoure. Both the panchas and the complainant were asked by PW-4 PI Devde to come to the office of the ACB, Thane at 5.00 a.m. on the next day morning. On 5/7/1991, at 5.00 a.m., both the panchas and the complainant arrived. They were introduced to PW-1 Prakash Patil. They were made to read the complaint. After reading the complaint, they put their signatures on the complaint. PW-4 PI Devde asked both the panchas to take physical search of PW-1 Prakash Patil. On search, PW-1 Prakash Patil was found having Rs.557/- on his person. Out of that amount, PW-1 Prakash Patil handed over Rs.500/- to PW-4 PI Devde. There were five notes of Rs.100/- denomination each. Numbers of the five currency notes were noted in the panchnama. Then ASI Dixit gave demonstration to the complainant and panchas about the use of anthracene powder. Anthracene powder was applied to the currency notes. The marked notes were folded and put into the left side shirt pocket of PW-1 Prakash Patil. PW-1 Prakash Patil was instructed to accompany the panchas to the place of the accused. PW-1 Prakash Patil was told that if the accused enquires about the identity of PW-2 Waghchoure, he should be introduced as prospective purchaser of his land. PW-1 Prakash Patil was instructed to ask for 7/12 extract and certified copy of mutation entry from the accused. He was told that if the money is demanded he should hand over the marked currency notes to the accused. He was told to give signal to the raiding party on acceptance of the money by holding right sleeve of his shirt up to the elbow joint while coming out of the room of the accused. PW- 2 Waghchoure was asked to hear the talk between PW-1 Prakash Patil and the accused. PI Khaire was asked by PW-4 PI Devde to accompany PW-1 Prakash Patil and see that after acceptance of money, it was not destroyed by the accused. PI Khaire was also instructed to pose as one of the prospective purchasers of the land of the complainant. Pancha Vasant Sawant was also instructed to accompany the raiding party. Pre-trap panchnama was drawn between 5.30 a.m. and 6.45 a.m. It is at Ex-14.