Ralph Miranda vs Anti Corruption Bureau and Another

T.K. Chandrashekhara Das, J.—The Applicant is the accused No. 4 in Special Case No. 26 of 1987 on the file of Special Judge, Sessions Judge Court, Bombay in Special Case No. 26 of 1992. He was implicated along with other five accused for the offence punishable under Sections 109, 120-B, 420, 465, 468, 471 and 477-A of I.P.C. r/w. 5(1)(d) and 5(2) of the Prevention of Corruption Act, 1947.

At the relevant time, accused No. 1 was City Survey Officer No. 111, Santacruz, Accused No. 2 was the Shirestedar working under said City Survey Officer. Accused No. 3 was maintenance surveyor working under the said City Survey Officer, Accused No. 4 was son of late Lawrence Miranda who was the owner of the property. Accused No. 5 was the builder and Accused No. 6 was the Architect.

The short facts of the case is that accused No. 4''s father late Lawrence Miranda was owner of the property bearing City Survey Nos. 4950/B-2 and 4950/B-3 of Kole Kalyan C.S.T. Road, Kurla. After his death, accused No. 4 along with other legal representatives became entitled to own and possess the property as legal heirs of late Lawrence Miranda. Accused No. 4 on 21.5.1979 made an application to C.T.S.O. to re-measure/survey the above property on behalf of the legal heirs of the Lawrence Miranda. On the petitioner''s application, the maintenance Surveyor took measurement of the said plot on 21.6.1979. According to the documents on record, during the measurement, the area of C.T.S. No. 4950/B-2 was found to be 563.9 sq. mtrs. against the area of 350.4 sq. mtrs. and the area of plot No. 4950/B-3 was found to be 88.3 sq. mtrs. Subsequently the said property was agreed to be sold to Respondent No. 5. According to the petitioner, he had applied for the measurement because he had noticed certain discrepancies in the measurement of the property as entered into the 7/12 extract and P.R. records. In order to correct this discrepancy, he applied for re measurement of the property as stated above and on account of the measurement, F.S.I. has been increased. After the measurement, the petitioner had left India as he was serving in Merchant Navy in August, 1979 and he came back to India only in 1981. In the meanwhile, the agreement was executed between accused No. 5 Builder and the legal representatives of late Miranda including the petitioner. The petitioner sent from abroad a Power of Attorney authorising his sister Ms. Thelma Miranda for executing the agreement and also for executing the sale deed. In this context, Anti Corruption Bureau of the Maharashtra Government while launching series of prosecution against the person involved in the manipulation of entries that has been made in the Municipal records regarding the measurement of the property and this case was also brought to their notice and Anti Corruption Bureau initiated the present prosecution. The prosecution, in general, alleged that accused inflated F.S.I. out of the conspiracy hatched among the accused including the petitioner herein. It may be noted that the petitioner''s brothers and sister who were party to the agreement of sale, were not prosecuted. The petitioner alone was prosecuted. According to the petitioner, it is true that he has applied for remeasurement of the property simply because there was discrepancy in the two public documents about the measurement of the property. To remove this anomaly he applied and he further pleaded that he is not party to the agreement and during the time of execution of the agreement and of finalizing the transaction, he was out of India.

I heard counsel for the Petitioner Mrs. Teja Katdare and D.S. Mhaispurkar, for State. Even according to the case of the prosecution, there is discrepancy in the measurement of the entry in two public documents. Therefore, making an application for removing that discrepancy for re measurement has to be considered as a bonafide application. As per the prosecution case, the only role played by the accused No. 4 is making an application for the measurement. Admittedly, he is not party to the agreement and he has not played any role for finalizing the transaction of the sale of the property with accused No. 5. This aspect has been noted by the Trial Court also in Paragraph 43 of the order. In order to implicate the petitioner, the prosecution must have a case before the Court that even while making an application for measurement, conspiracy has already been hatched among the accused. In fact the Lower Court has not dealt with any material or the circumstances that on account of the conspiracy hatched among the accused. Accused No. 4 had made an application and so long as the petitioner''s role is only of making an application and he left India in August, 1979, which is undisputed fact, which was taken a note of by the Court below also. In this circumstances, unless there is any allegation or other circumstances communicating the conspiracy with the making of an application by the petitioner hereon, one cannot come to the conclusion that the Accused No. 4 was part and parcel of the conspiracy. In the absence of any such material, making an application to remove the discrepancy for the measurement shown in the public documents one cannot come to the conclusion that the petitioner had made his application for re measurement only with a view to inflate F.S.I. in connivance with the builder. I fail to see any such circumstances set up by the prosecution. In view of this, even prima facie ease is not disclosed in the light of the allegations made by the prosecution. Therefore, rejection of the application for discharge made by the petitioner by the Special Judge is illegal and liable to be set aside.

In the result, application is allowed.

Rule is made absolute in terms of prayer Clause (a) as far as petitioner is concerned.

The Trial Court is free to proceed against the other accused.

Interim stay granted by this Court stands vacated.

Since the Petitioner is discharged, bail executed on behalf of the petitioner is discharged.