EMPEROR Vs. DATTATRAYA SITARAM BINIWALA

JUDGEMENT

(1.) THIS is a revision application by the applicant against the order of conviction and sentence under Section 10 (4) read with Section 10 (2) of the Bombay Rent Restriction Act, 1939. The facts as alleged by the prosecution are that Manaji Trust owns a number of chawls at Parel and it is managed by one Kalewar, who is a witness in this case. The accused is a munim under Kalewar. His business is to get the rents collected, keep accounts and manage the property. The complainant was formerly residing in one of these Trust chawls, and in May, 1944, he helped one Irayya to get room No.24 on the 3rd floor, chawl No.5, in his name and the complainant resided with him. In March, 1946, Irayya gave a writing Ex. 8 to the complainant stating that he had no right to the room and that thenceforward he would live in the room and pay the rent. The room, however, continued to be in the name of Irayya. THIS arrangement continued till about February, 1947, when Irayya again left for his native place taking all his belongings except a 'setranji'. The complainant then thought, of getting the room transferred to his name. He therefore about the beginning of February approached the Bhayya, the rent collector, and the accused fur that purpose. It. is alleged that they demanded Rs. 100 as premium for transferring the room and that the complainant offered to pay Rs. 50.They insisted on receiving Rs. 100 as the premium. The complainant then offered to pay it and on February 14, 1947, he contacted the police. His first information was recorded. Therein he has stated that when he asked the accused to transfer the room to him the accused demanded Rs. 100 as premium and later on he stated that as the rent had been paid up-to-date he would offer to pay this premium in the month of March and would demand a receipt in his own name. Then on March 6, 1947, Sub-Inspector Patkar handed over ten Government currency notes of Rs. 10 to the complainant in the presence of panch Rajayya Mallaya and made a panchnama in a hotel at Thakurdwar and instructed him to hand over the sum to the accused. The complainant in the company of the panch went to the office of the accused at Nana Shankar Wadi and there the accused was in the office. He came out and asked the complainant why he had come. Then on the complainant telling him that he had brought the money he asked him how much he, had brought. He told him that he had brought Rs. 100. The accused asked the complainant to wait outside for some time and then he went into his office room. The complainant thereafter sent the panch to look for the police and as the panch did not come he himself came out on the road. In the meanwhile the accused also came out on the road apparently in search of the office boy. He asked the complainant why he was waiting there. Then the complainant took him to a hotel nearby and the complainant saw at that time that Sub-Inspector Patkar and other police constables were also in the hotel. At the hotel near the tea table the complainant handed over Rs. 100 to him telling him that the transfer of the room should be made before the 19th as Irayya was expected to come to Bombay, and it is alleged that accused told him not to be afraid of the arrival of Irayya because he was there. The accused put the one hundred rupees notes in the upper pocket of the shirt, in the meanwhile the Police Sub-Inspector came and attached the one hundred rupees notes as well as Ex. B-I which is a copy of exhibit B, which was handed over to the complainant by the accused along with the currency notes of Rs. 100. In support of this case the prosecution have examined the complainant, the Sub-Inspector, the panch witness and Kalewar, and the accused has examined the Bhayya, the rent collector. The defence of the accused was that he received the amount of Rs. 100 from the complainant for the legal expenses in evicting Irayya because he told him that it was not possible to evict Irayya as he had paid the rent and as he had not terminated the tenancy by giving notice to him. He, however, told him that unless legal proceedings were taken it was not possible to transfer the room to the complainant. Then the complainant offered to pay the expenses of the legal proceedings and he therefore paid those Rs. 100 not as pugree but for expenses for taking legal proceedings for evicting Irayya. THIS explanation of the accused was rejected by the learned Presidency Magistrate and relying on the evidence of the complainant and the other witnesses and taking into consideration the surrounding circumstances the learned Presidency Magistrate has convicted him under Section10 (4) read with Section. 10 (1) of the Bombay Rent Restriction Act, 1939, and sentenced him to suffer simple imprisonment for six months. Against this order the applicant has come in revision.

(2.) AT the time of the admission of this revision application this Court issued a rule for enchancement of the sentence. Now, as there was a rule issued for the enhancement of the sentence, the accused was entitled to challenge the conviction and the learned advocate Mr. Desai, who appears for the accused, has challenged the conviction on merits as well as on a point of law, to which I will come later. It is admitted that the accused accepted Rs. 100, but his only contention is that that amount was paid to him as expenses for taking legal proceedings against Irayya and not as pugree for transferring the room from Irayya's name to the complainant's name. And he has further contended that it is the complainant alone who says that the amoxint was given as pugree, and as he is not corroborated either by the evidence of the panch or by the evidence of the Sub-Inspector, it is not safe to base the conviction on the uncorroborated testimony of the complainant whom he calls as a bogus customer. Therefore, we will have to see whether in the first place the explanation offered by the accused is satisfactory. The accused admits that it was he who told him that legal proceedings will have to be taken to evict Irayya and then the complainant offered to bear all the expenses of the legal proceedings and agreed to pay Rs. 100. Now, obviously the rent of the room was Rs. 6 per month and it was not known how the figure of Rs. 100 was arrived at for the expenses of legal proceedings against Irayya. The complainant was willing to pay Rs. 50 and as the quantum of money was not very material, it is difficult to believe why the complainant should offer to pay Rs. 100 unless that amount was demanded by the accused. And, secondly, according to the evidence of Kalewar, legal expenses are paid directly by the party to the lawyer and that he had never taken such deposits nor has he allowed his mehta to receive such deposits in a lump sum at any time. Similarly, the Bhayya Sitalprasad Nandkishore, who is examined by the accused, also says in his cross-examination that in his experience it has never happened that the expenses for the transfer of a room from one man's name to another man's were taken either by the mehta, or by him or by the landlord and credited and account given. So, it is difficult to believe that Rs. 100 were accepted by the mehta as expenses for legal proceedings. If that was the only object, he could have taken the complainant from the tea hotel to his landlord and asked him to pay the money in the office direct to the landlord. One would not expect that: he would take the money himself because both Kalewar and the Bhayya say that such a lump sum had never been recovered either by the mehta or by anybody else. If this explanation offered by the accused is rejected, then we have got to see whether the complainant's story that it was offered as pugree can be accepted. It has to be borne in mind that the complainant wanted to have the room transferred to his name, and he had taken a writing Ex. B from Irayya as far back as 1946 March, and another circumstance which would show that it must have been received as pugree is that even a copy of exhibit B-I was found with one hundred rupees currency notes. That itself corroborates the allegation made by the complainant that the object of the payment was to get the room transferred to his name. Besides, there are other circumstances to show that the amount must have been received as pugree and not as expenses for the legal proceedings. When the complainant went to the accused's office, the accused pretended that he had no time and asked the complainant to wait outside. But after some time it was surprising to find that the accused came out on the road on the pretext of looking for the office boy and then proceeded to the tea hotel in the company of the complainant and the panch. If he was not very anxious about the whole thing, one would not expect that he would come outside his office and agree to go in a tea hotel. This conduct on the part of the accused is very suspicious. It is urged by Mr. Desai that in this particular case the panch is brought by the complainant and not by the police and therefore no importance can be attached to the evidence of the panch. But the evidence of the panch would have been material if the accused denied the acceptance of the money. But as the acceptance of Rs. 100 is admitted by the accused himself, nothing turns on the evidence of the panch himself. The whole case turns on the fact as to whether one is prepared to accept the explanation given by the accused. Moreover, the evidence of the complainant is to the effect that at the time of payment of Rs. 100 he told the accused that he should transfer the room immediately to him before the 10th as Irayya was expected to arrive in Bombay, and then the accused told him not to be afraid of Irayya as he was there. This part of the story is corroborated by the evidence of the panch who says that the accused assured the complainant that he need not be afraid even if Irayya arrived in Bombay. If this part of the story is accepted as true, then the explanation offered by the accused has got to be rejected. We therefore have no hesitation in coming to the conclusion that the amount Was offered to the accused as pugree and not as expenses for the litigation. We fail to understand what sort of litigation was to be fought in the Court. The rent had been paid for the month of January and there was no notice given by Irayya to the landlord that he was vacating the room. Therefore there is no question of taking any ejectment proceedings against Irayya in March. It appears that the complainant on the strength of Ex. B was asking the accused to transfer the room and therefore he supplied him with the copy of exhibit B. It is therefore clear that no legal proceedings could be contemplated.

(3.) THE words of Section 10 (1) of the Bombay Rent Restriction Act are as follows: It shall not be lawful for any person, in consideration of the grant, renewal or continuance of a tenancy of any premises, to require the payment of any fine, premium or any other like sum in addition to the rent.