TMI Blog1971 (2) TMI 120X X X X Extracts X X X X X X X X Extracts X X X X ..... -per month and to pay an advance of ₹ 1,000/-. It also appears that under Rule 5 of the Public Entertainment Rules a licence granted under Rule 3 was not transferable but was for the benefit only of the person to whom it was granted, so that even on the death of such person, it was deemed to have been revoked at once. Further under Rule 8 no person keeping a place of public entertainment shall be absent without the previous permission of the District Magistrate and no such person shall at any time permit any other person to act for Mm in the management of such place without the like permission similarly endorsed. 3. The case of the prosecution is that on 17-1-65 the Appellant who in the beginning of 1965 was working as Head Constable at Bhiwandi Police Station visited the Complainant's Hotel at about 6 p.m. where he found the Complainant at the Galla and Shetty standing by his side. The Appellant enquired whether Shetty's name was shown in the licence. The complainant then told the Appellant that Shetty was his friend so that he helps him in the Hotel affairs. The Appellant however, was not satisfied with this explanation and told the Complainant that he would file ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elling the Complainant that if the Appellant demanded the amount, it should be given and if he accepted the amount the Complainant was to inform the Anti-Corruption Officers in respect of this, the raiding party went to Bhiwandi. On reaching Bhiwandi the Complainant along with the two Panchas, P.W. 3 and P.W. 5 went ahead and sat in his Hotel, while the other members of the raiding party went inside the house of a relative of the Complainant. It is alleged that the Complainant and the two Panchas sat in the Hotel from 10 a.m. till 5 p.m. when the Appellant came to the Hotel, and sat there. The Appellant then asked the complainant if he had given the application for getting the name of P.W. 10 added in the licence to which the Complainant replied that he had. The Appellant then told the Complainant that he would be getting the application and said that when there is work for getting a licence people approach him and when the licence is given nobody cares or approaches the Police Officers. On his demanding the bribe of ₹ 25/-the Complainant took the notes and wanted to give to Appellant but the Appellant put forward an envelope which he was holding and told the complainant that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... common friend Shiddu Korga Shetty and Pappa Shetty all of whom have enmity with him. The Appellant's version is that on 17-1-65 while he was patrolling in Section 1 from 4 p.m. to 8 p.m. he went to P.W. l's Hotel to check up. At that time he found Shetty P.W. 10 at Galla but P.W. 1 was absent. When Appellant asked and obtained from Shetty the licence with a. view to verifying whether Shetty's name was there in the licence he found that Shetty's name was not written in it as the Manager of the Hotel. The Appellant asked Shetty to accompany him to the Police Station as a case has to be filed against him but Shetty said that as there was none else to manage the Hotel he would come next morning. A note to this effect was made by the Appellant in his diary. On the next day i.e. 18-1-65 at 2 P. M. Shetty came to the Police Station, the Appellant prepared the Report, as per Ex. 39 and he produced Shetty before the Thana Amaldar Tukaram Jangam P.W. 9 who took ₹ 5/-as security for Shetty's presence at the Police Station for which a receipt Ex. 41 was also issued in the name of Shetty. Orders were also given to the Appellant as per Ex. 39A by the Thana Amaldar, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e outside the hotel, trapped and planted the currency notes in the envelope. 5. The Special Judge held that the story told by the Complainant was not established that while one of the Panchas P.W. 3 said there was no powder on the Appellant's hands, the other Panch P.W. 5 could not be relied upon and that there was no evidence of anthracene powder on the cap of the Appellant which he removed by his left hand with which he is said to have tapped the protruding notes inside the envelope. After considering these and other matters alleged against the Appellant in detail he was of the view that prosecution had not established that the Appellant demanded ₹ 25/-or accepted it and consequently acquitted him. Against this acquittal the State appealed to the High Court which as we have stated earlier reversed and set aside the order of the Special Judge and sentenced him to Rigorous Imprisonment for one year and a fine of ₹ 200/-and in default a further term of rigorous imprisonment for 3 months. The High Court in its judgment while recognising that Panch Harishchandra P.W. 3 has not supported the case of the prosecution thought that the Sessions Judge did not give a findi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for entering the name of Shetty in the licence as the Manager of his Hotel. In these circumstances the learned Advocate says that there was no occasion for demanding ₹ 30/-per month as bribe or for the Complainant to agree to pay him ₹ 25/-p.m. At the most the Appellant could only favour the Complainant by giving a favourable report in which case the complainant would get the permission to allow P.W. 10 to act as a Manager endorsed on the licence which is all that was required to conform to the Rules. If so it is difficult to understand how anyone could ask for a monthly remuneration or would have accepted to pay it. It would be possible to comprehend a lumpsum bribe being asked in a situation of that nature. The Appellant's version, it is submitted is more probable and that the Complainant along with his friend had concocted a case against him because of enmity with him. 7. The learned Advocate for the Respondents on the other hand says that the approach of the Sessions Judge was erroneous as he has not taken into consideration the evidence of the Complainant, P. S. I. Parab and Aire and has merely taken into account what was stated by the Panch witnesses to d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing of the note and of envelope was faint blue, none of the witnesses in their deposition say that there was a glow or a shining blue. It is stated in the Panchnama that the Complainant put one folded ten Rupee note in the envelope with his right hand and when a little portion of the fold of the note could be seen outside, the Havaldar pushed it inside with his left hand, kept the envelope on the table and placed the cap on his head with his right hand over the envelope. The Complainant P.W. 1 however says in his deposition in the Cross-examination that the Appellant took out his cap with his left hand and placed it on the envelope which he had placed on the table. There is therefore an indication that when no powder was discovered on the cap in the Panchnama a statement that the Appellant had placed his cap on the envelope with his right hand has been made. It may also be noticed that Panchnama speaks only of one note of ₹ 10/-being put in the envelope and no other notes, while the case of the prosecution is that there were two notes of ₹ 10/-and one of ₹ 5/-that were placed by the complainant in the envelope. Some of these statements in the Panchnama which contr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n that on the 8th January before they set out for Bhiwandi, at Thana both Panchas were shown their hands under the light before and after the anthracene powder was dubbed on their hands and that the same glowed and gave a bluish light when anthracene powder was put on them. The witness at first stated that the Appellant did not ask the Complainant if he had sent the Hotel licence, though when confronted with the statement in the Panchnama he sought to resile from the original statement. If as a matter of fact the two Panchas and the Complainant were sitting in the hotel from 10 a.m. to 5 p.m. notice will certainly be taken of them by all those present in the Hotel which is comparatively a small one. Nor is it comprehensible that the Appellant would converse in this small area, with the Complainant when two persons one on either side was watching him as indeed according to one of them P.W. 5 the Appellant was looking at them all the time. The High Court thought that the learned Special Judge had compared the evidence of the two Panch witnesses but did not say whether Panch Harishchandra (P.W. 3) is a witness of truth or Panch Patil. This conclusion cannot be justified on the assumpt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... also says that ultra violet lamp worked on electricity is more powerful than the one which he used. In these circumstances the Special Judge was not unjustified in his conclusion that it is doubtful whether there was a thin line on the three fingers indicating anthracene powder or that it was difficult to believe Panch Patil and the informant that with these fingers the Appellant put the notes inside the envelope Ex. 11. This conclusion of the Special Judge is further reinforced firstly by the evidence of Parab that natural oil and fats fluoresce on fingers and look whitish under ultra violet lights; so that if a white line was seen it does not necessarily imply that it was anthracene powder marks, secondly by the omission to find any traces of anthracene on the cap which as we have said, must necessarily be found if it was removed by the hand which had on its fingers anthracene powder. In any case according to Parab when the hands were being inspected he knew where the amount was kept, that he knew that it was kept in the envelope but says he had not taken charge of the envelope as soon as he entered the Hotel or before he examined the hands of the Appellant. This statement would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ecause it would take some time before permission could be given and in the meanwhile the Complainant would be contravening the Rules. The simple answer to it is that the Complainant could easily have said that he will not permit Shetty to act as Manager till then. It was in the power of the Complainant to make the necessary adjustments with Shetty rather than plead poverty or agree to pay the bribe. There is nothing in the evidence to show that either the Complainant or Shetty showed the agreement of the 18th to the Appellant at any time, because for one thing on the 17th there was no agreement executed by the parties and for another no occasion arose subsequent to that date to show the Agreement. The High Court no doubt while accepting the case of the Appellant that Shetty was in-charge of the cash counter and was conducting the business on the 17th January 1965 none-the-less inferred that the Complainant must have also been there. It observed: The accused denies the presence of the Complainant. As the complainant had admitted in the evidence before the Court that possession was delivered on January 11, 1965, we have no doubt that Shetty must be at the counter but it is not im ..... X X X X Extracts X X X X X X X X Extracts X X X X
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