SHAMBHU MUKUND BHOIR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THIS appeal is directed against the judgment and order dated 19th January, 1991 passed by the Special Judge. Thane in Special Case no. 2 of 1986, whereby the learned Special Judge convicted the appellant-original accused no. 2 of the offence punishable u/s 5 (2) r/w Section 5 (1) (d) of the Prevention of Corruption act, 1947. and sentenced him to undergo R I for a period of six months and to pay a fine of Rs. 100/ -. In default he was to undergo further R. I. for a period of four weeks. The appellant was acquitted of the offence punishable under section 165 A of the I. PC. For sake of convenience the appellant is hereinafter referred to as "accused no. 2. "

(2.) BRIEFLY stated the facts of this case are as under :-The complainant who is working in Phillips Company wanted to extend his house by making additional construction. For that purpose he was to take loan from his provident fund. For obtaining loan the complainant needed no objection certificate from Tahsildar, Thane. On 19. 4. 1985,he made application Exhibit21 to Tahsildar, Thane, requesting him to issue no objection certificate. Accused no. 1 was working as a Clerk in Tahsildar's office. The application was sent to Talathi of village Airoli, one Sadanand Sakhram pashte, P. W 3, for local inquiry on 24. 4. 85. He made inquiry of that application on 25. 4. 1985 and submitted it to the tahsildar office. The application was made over to accused no. 1 as he was entrusted with land matters. On the basis of that application he was to prepare no objection certificate. According to the prosecution after the inquiry was made bythe Talathi, the complainant contented accused no. 1 about the said no objection certificate. Accused no. 1 told him that such work could not be done without payment of money. The complainant told accused no. 1 that he should do the work first and then he would see. The complainant repeatedly contacted accused no. 1 in Tahsil office. However, he could not get it. On 15/16 of May, 1985, he met accused no. 1 in his office. That time accused no. 1 told him that his certificate is ready but he would have to pay Rs. 200/ -. The complainant agreed to pay that amount on 18. 5. 85. On 18. 5. 85 he again met accused no. 1 in Tahsil office. Accused no. 1 enquired with him as to whether he had brought the money. The complainant replied that he would come back after going to Bazar. The complainant then approached Police Inspector Shri J. P. Pawar, p. W. 5 in the office of Anti Corruption Bureau at Thane. His complaint was recorded by Shri Pawar. Shri Pawar decided to lay trap. Shri pawar took necessary steps in that behalf. He called two clerks from the office of Sub-Regional Employment Exchange to act as panchas. They are Anant Channe, P W. 2 and Abdul Rashid Abdul Aziz Shaikh. The complaint Exhibit 23 was raod over to the panchas. An amount of rs. 200/- which was on the person of the complainant was taken as a bribe money. The said amount consisted of two currency notes of 100/-rupee each Their numbers. were noted They were treated with anthraceene powder and were kept m the right pocket of the complainant's shirt The complainant was instructed to contact accused no. 1 in his office alongwith the pancha Shn Annant Channe to demand his certificate and to pay the bnbe amount of Rs. 200/- He was told that he should touch the currency notes only if demand was made and not otherwise. The second pancha Shn Shaikh was instructed to remain with the members. of the raiding party Pre-trap panchnama Exhibit. 27 was accordingly drawn. Thereafter the complainant accompanied by panch Anant Channe left for Tahsildar's office on a motor-cycle and second pancha Shri Shaik, shn J P Pawar and other members. of the raiding party followed them in autonckshaw. The stopped at the office of Thane Municipal corporation The complainant alongwith pancha Anant Channe went to the Tahsildar's office, Accused no. 1 was not present They came out and waited in the courtyard While they were waiting, they saw accused no. 1 going to his office, they followed him. The complainant alongwith pancha Shn Channe met accused no. 1 at his table. The complainant asked accused no. 1 as to what had happened about his work Accused no. 1 said that certificate was not signed and he enquired with the complainant, whether he had brought (money ). The complainant answered in the affirmative by Shaking his head accused no. 1 then told him to pay the money to the panwala He said that he would keep the certificate with the panwala Then the complainant and pancha channe came out of the office They went to the canteen As they were standing there, they met Talathi Shn Sadanand pashte. The complainant had told Shn Pasthe that he had come to take the certificate but his work is not done although one month is already over, Shn Pasthe told him that he would go to Tahsildar's office and find out Shn Pasthe went inside the office After making inquiry, he came out and told the complainant that the certificate is placed for signature and after the signature is made it would be issued to him the second pancha and the raiding party were waiting in the vicinity of tahsildar's office. The complainant and pancha Channe contacted Shri. J. P. Pawar and narrated the events which had happened till then At about 3-45 p. m the complainant accompanied by pancha Channe again went to the tahsildar's office They were followed by the second pancha Shn shaikh and the members. of the raiding party The complainant met accused no. 1 and asked him whether certificate is signed or not accused no. 1 told him to wait for sometime. The complainant and chorage came in the verandah and were sitting on the bench After sometime Accused no. 2 came in the Verandah He approached the complainant and showed the palm of his left hand Figures 200/- was written on his palm By showing the palm Accused no. 2 asked the complainant to take out the money He stated that Accused no. 1 told him to take Rs. 200/- from him and that the complainant should pay that amount which he would pay to accused no. 1. Immediately thereafter the complainant took out the marked currency notes from the right side pocket of his shirt and handed them over to accused no. 2 Accused no. 2 took the said marked currency notes by his right hand, opened the folded notes and ascertained that it was amount of Rs. 200/- He then kept the marked currency notes in the right pocket of his shirt He took out the folded no objection certificate from the right side pocket of his pyjama and delivered it to the complainant by his right hand The complainant took the certificate and kept it in the plastic bag The complainant then went to accused no. 1 in the office alongwith the pancha Chorage and informed accused no 1 that he had handed over money to accused no. 2 Accused no. 1 then asked him to go The complainant came out of the office where pancha Chorage was standing Accused 2 was also standing there the complainant then gave the agreed signal to the raiding party by combing his heir with the comb After that Shn J P Pawar, second panch Shri Shaikh and the members. of the raiding party rushed Both the accused were caught by the members. of the raiding party The clothes and hands of accused no. 2 were examined in the light of ultra violet lamp Traces of anthracene powder were seen on both hands of accused no. 2, inside the pocket of his bush shirt and on the comer of the right side pocket of his pyjama The hands and clothes of accused no. 1 were also examined under the light of ultra violet lamp However, no anthrecene powder was detected either on his clothes or hands the amount of Rs. 200/-i e two currency notes of the denomination of Rs. 100/- each were recovered from the right side pocket of the bush-shirt of accused no. 2 They were examined under the light of ultra violet lamp and traces of anthracene powder were soon on them their numbers. tallied with the numbers. already noted in the pre-trap panchanama Exhibit 27 After following the necessary formalities post-trap panchanama Exhibit 28 was drawn Shn J P Pawar, then prepared his First Information Report Exhibit 36 It was forwarded to thane Nagar Police Station Offence came to be registered against both the accused as aforesaid at the trial prosecution examined in all five witnesses They are P W 1 Anant Katkar ahte complainant PW 2 Anant Channe, the panch witnesses, PW 3 Sadanand Pasthe, Talathi of village Airoli, PW 4 prabhakar Salvi, Naib Tahsildar, P W 5 J P Pawar, has given the details about the investigation the defence of the accused no. 1 was one of the denial He admitted that the complainant had made application Exhibit 21 for obtaining no objection certificate from Tahsildar's office He had prepared the no objection certificate On 18 5 85 when the complainant met him, he told the complainant that his certificate is placed for signature and that after it is signed, he should take it He had told accused no. 1 to deliver certificate to the complainant after it was signed by Naib Tahsildar Shn salvi He has denied to have demanded and accepted the bnbe amount through Accused no. 2, Accused no. 2 in his defence stated that accused no. 1 had told him to handover the certificate to the complainant accordingly he handed over the certificate to the complainant and the complainant had thrust the marked currency notes in his hands after perusing the evidence on record the learned Special Judge by the impugned judgment and order acquitted accused no. 1 of all the charges he, however, convicted accused no. 2 as aforesaid and hence the present appear

(3.) I have heard Shn Mundargi, learned Counsel appeanng for the appellant and MRs. Sabarwal, learned A PP with the help of learned Counsel, I have gone through the entire evidence and the relevant documents