Judgment

Chandrasekhara Aiyar, J. - The facts out of which this Criminal Appeal has arisen are not long. The appellant, W. H. King, who is carrying on a business in Bombay under the name and style of Associated Commercial Enterprises, was the tenant of a flat on the second floor of a building called "Ganga Vihar", Marine Drive, Bombay which belongs to a lady named Durgeshwari Devi. The tenancy was a monthly one the rent being Rs. 215. It is said that the appellant wanted to go to the United Kingdom for treatment of his failing eyesight and he got into touch with the complainant Mulchand Kodumal Bhatia, who is respondent 2 in this appeal, through one Sayed for the purpose of making necessary arrangements about the flat occupied by him in view of his intended departure. The prosecution case is that the accused demanded a sum of Rs. 30,000 which was later on reduced to Rs. 29,500 as consideration for putting the complainant in vacant possession of the flat and an additional amount of Rs. 2,000 for the furniture, and that the complainant agreed to pay these sums. The complainant actually paid the accused two sums of Rs. 500 each on 7-11-1948, and 17-11-1948. He however, got into touch with the police on 1-12-1948, and in conjunction with the latter, a trap was laid for the appellant. It was arranged that the complainant should bring with him Rs. 1,000. Being the balance due in respect of the furniture and that the police would give him Rs. 29,500 to be paid to the appellant. The complainant and a Sub-Inspector, posing as the complainant s brother went to the appellant on 4-12-1948, and paid him the two sums of money; and the keys of the first and the motor garage were handed over to the complainant. As the appellant and his wife were leaving the flat, the man, who masqueraded as the complainant s brother, threw off his disguise and disclosed his identity. The police party, who were down below ready for the raid, held up the car of the appellant and recovered the sum of Rs. 30,500 from the rear seat of the car and also some papers, a typed draft of a partnership agreement between the complainant and the appellant and an application form for permission to occupy the building as care-taker. From the complainant were recovered the bunch of keys and the documents that were handed over to him by the appellant, namely, the letter handing vacant possession (Ex. D), the receipt for Rs. 2,000 for the articles of furniture (Ex. E), a latter to the Bombay Gas Company for transfer of the gas connection to the name of the complainant (Ex. F), and the letter to the Bombay Electric Supply and Transport Committee for transfer of the telephone connections and the deposit of Rs. 27 (Ex. G).

2. The appellant was charged under S. 18 (1), Bombay Rents, Hotel and Lodging House Rates Control Act. LVII of 1947, for receiving a pugree of Rs. 29,500 and he was further charged under S. 19 (2) of the said Act for receiving the said sum as a condition for the relinquishment of his tenancy. His wife who was the second accused in the case, was charged with siding and abetting her husband in the commission of the two offences.

3. The defence of the appellant was that he was in search of a partner to carry on his business during his intended absence, who was also to act as caretaker of his flat and that it was in this connection and with this object in view that he entered into negotiations with the complainant. The sum of Rs. 29,500 was not pugree but represented capital for 0.12.0 share in the business and as the complainant was also to be care taker of the flat, the sum of Rs. 2,000 was paid and received as a guarantee against disposal and damage of the furniture and it was agreed to be paid back on the appellant s return to India. The wife of the appellant denied any aiding and abetting.

4. The Presidency Magistrate, who tried the case, disbelieved the defence on the fats, holding that what was received by the accused was by way of pugree . As S. 18 (1) of th