RASHID BABUBHAI MULANI Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal has been preferred by the appellant-accused against the order of conviction and sentence dated 7th February 1990 passed by the learned Additional Special Judge, Pune, in Special Case No.1 of 1987, whereby the learned Judge has convicted the appellant-accused for the offences punishable under section 161 I.P.C. and under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, and sentenced him to suffer R.I. for one year for the offence punishable under section 161 I.P.C. and to suffer R.I. for one year and to pay a fine of Rs.1000/-, in default to suffer R.I. for 3 months. The substantive sentences were ordered to run concurrently.

(2.) THE prosecution case, in brief, is that the complainant and his brother Baban owned ancestral field property bearing gat no.64 and gat no.100. In the year 1968, the said field was mortgaged to one Krishna Badade for a sum of Rs.2600/-. Similarly, the complainant and his brother Baban had taken Tagai loan of Rs.4400/- on the said field. Since the repayment of the Tagai loan was not made by the complainant and his brother Baban, Krishna Badade filed a civil suit which came to be compromised on 26-6-1973. The complainant and his brother Baban repaid the amount of Tagai loan of Rs.4400/- and also paid the mortgage amount of Rs.2600/- to Krishna Badade at the time of the said compromise. After the compromise, the field gat no.64 came in the possession of the complainant and his brother Baban. It is alleged that three years prior to the incident in question, there was a partition of ancestral field property amongst the complainant, and his brother Baban and in the said partition, the field gat no.64 was allotted to the share of the complainant and gat no.100 was allotted to the share of his brother Baban. The complainant has been in possession of gat no.64. On 24-6-1986 the complainant obtained 7/12 extracts in respect of gat no.64 when he found the name of Krishna Badade continued in the 7/12 extract of gat no.64. At that time, the complainant informed the appellant-accused that as per the compromise between him and the said Krishna Badade, the said field came back to his possession and since the he continued in possession thereof and, therefore, the complainant asked the appellant-accused to remove the name of Krishna Badade from the 7/12 extract. The appellant-accused then told the complainant that some expenses will have to be incurred for the same. After some days, on 6-9-1986 the complainant again went to the office of the appellant-accused and requested him to remove and name of Krishna Badade from the 7/12 extract and thereafter obtained a copy of the said 7/12 extract, wherein he noticed the names of the sons of Krishna Badade entered to which the complainant objected. When asked, the appellant-accused told him that at the instance of Krishna Badade, the names of his sons were entered in 7/12 extract. Immediately thereafter, the complainant went to the residence of Krishna Badade and met him. Krishna told the complainant that he has no objection against entering the name of the complainant in place of his sons in the 7/12 extract. On the next day 7-9-1986 the complainant went to the office of the appellant-accused and requested him that since Krishna and his sons have no objection to delete their names and show his name against the said field gat no.64 in the 7/12 extract, when the appellant-accused told him for that purpose he will have to send notices to Krishna and his sons and, therefore, an amount of Rs.1000/- would be required to meet the expenses, whereupon the complainant told him that since he is poor man, it was not possible for him to give the said mount and requested to reduce the same when the appellant-accused told him that at least Rs.900/- would have to be paid to him and asked the complainant to come to him with the said amount to the Circle Office and if he was not found there, then come to his residence. Accordingly, on 10-9-1986 the complainant went to the Circle Office at Saswad and when demanded by the appellant-accused paid Rs.600/- to him. The appellant-accused then asked him to bring the balance amount of Rs.300/-. Thereafter the appellant-accused started preparing the requisite application. After four days, the complainant went to the Grampanchayat Officer for licence to get Urea-Sufale fertilizers at Kodit, where the Gram Sevak was present and the appellant-accused was also present. The appellant-accused told Gram Sevak that since the papers of the field gat no.64 were not complete, licence should not be given to him. Thereafter, the appellant-accused took the complainant and reminded about payment of Rs.300/- by him to the appellant-accused. The complainant expressed his inability to pay the same. Thereafter he went away. After about four days, the complainant went to the appellant-accused and again requested him to remove the names of Krishna's sons and show his name in the 7/12 extract, whereupon the appellant-accused told him that unless he pays the balance amount of Rs.300/-, the work would not be done and asked him to bring the said amount to the Circle Office on the next working day. Thereafter the complainant went away. On 4-10-1986 the complainant went to the office of A.C.B. and appellant-accused. Accordingly a raid was arranged. On 6-10-1986 the complainant went to the office of A.C.B. The complainant was given three marked currency notes of the Rs.100/- in all Rs.300/-,and the raiding party along with the complainant and panch witness went to the Circle Office but the said office was closed. Thereafter they met the appellant-accused on the way when he asked the complainant and the witness to come to his residence and accordingly they went to his residence. After reaching his residence, the appellant-accused asked as to whether he had brought the money to which the complainant replied in the affirmative. The appellant-accused accepted the amount and put the same in his pocket. The appellant-accused asked the complainant to come to the Circle Office next day and collect the document. Thereafter the complainant went out and gave signal to the raiding party and immediately thereafter the raiding party rushed inside and apprehended the appellant-accused and the marked currency notes in all Rs.300/- were recovered from the pocket of the appellant-accused. A panchanama was drawn the amount was seized under the panchanama. Investigation then commenced. Statements of witnesses were recorded. Statement of the appellant-accused was also recorded. After completing the investigation and the necessary formalities, charge-sheet was filed against the appellant-accused before the Special Court, Pune, under the Provisions of the Indian Penal Code and the Prevention of Corruption Act.

(3.) HEARD Mr.R.S.Bhosale, learned Counsel for the appellant-accused and Mr.M.P.Galeria, learned A.P.P., for the respondent.