1. This is a criminal revision from an order convicting the applicant under Section 384 of the Indian Penal Code. The case against the accused is to be spilt up into two parts, although the sentence is one for both the convictions.
2. The first charge against the accused was that he extorted a sum of Rs. 45 and a further sum of Rs. 20 from one Jodha Teli. It appears that the Co-operative Bank had a decree against one Bihari Brahmin, and others. In execution of this decree, the amin was sent to the village to attach property belonging to the judgment-debtors. Mr. Tandon, the Assistant Manager, the present accused, who is the Secretary of the Society, and the auditor of the Bank also appear to have accompanied the amin to the village. It is said that on the 29th of November, 1921, the accused pointed out certain crops as belonging to the judgment-debtors, and on the crops having been so pointed put, the amin attached them. The document signed by the amin shows that the crops were pointed out by the Assistant Manager as well as by the Secretary. The paper was signed by the Assistant Manager, admitting that he pointed out the crops, but was signed by the Secretary as a witness. The fact, however, remains that neither the Assistant Manager, nor the Secretary had power to attach the crops. It was the amin alone who had authority to do so, and there can be no doubt that the act of attachment must be attributed to the amin and to no one else.
3. The crops attached by the amin, However, did not as a matter of fact belong to Bihari Brahmin. Jodha was a co-sharer of Bihari in some fields, though not necessarily of the fields of which the crops had been attached. The crops belonged to Jodha, and, consequently, he protested against the attachment. The story told by some of the prosecution witnesses is that before the attachment took place,, the accused wanted some money and promised in return not to get these crops attached. This, however, is said to Have happened in the village itself. The accused is not charged with anything that happened in the village, but is charged with having extorted money at Budaun. The occurrence at Budaun was some two days after the attachment had been made, Jodha accompanied by two other persons went to the accused and begged of him to get the crops released. The accused promised to get them released and settled his gratification at Rs. 65, out of which Rs. 45 were paid to him then and there, and the balance was paid in the village some months after.
4. Both the courts below have accepted the prosecution story that the accused did receive the sum of Rs. 45 and Rs. 20 from Jodha Teli. In revision, I cannot say that the courts below were wrong in believing that story. The question still remains whether the facts constituted an offence within the meaning of Section 383 of the Indian Penal Code. I have had the statement of the complainant read over to me, and the story told by him as to what happened at Budaun is that when he begged of the accused to get the crops released, theaccused abused him, threatened him, and said that if he did not pay him the money then, he should go and file objections. I note here that the learned Magistrate who took down the notes of the evidence in English has wrongly translated this portion of Ajudhia's actual statement as implying that he would get him convicted in some case. That he is clearly wrong is borne out by a comparison with the evidence recorded in the vernacular. I am asked, on behalf of the prosecution, to connect what happened at the village with what happened at Budaun, and to say that the whole thing was a continuation of a single transaction and the accused is guilty on all the facts taken in conjunction. The statement made by the accused in the village would be a threat held out by him that if some money was not paid to him, the crops would be attached by the amin, whereas the promise held out by the accused at Budaun was that if the money was not paid, he would not try to get the crops released; otherwise the aggrieved party would have to go and file objections. In my opinion, there is a clear distinction between these two statements. One may cause a fear, the other only raises a hope. Before a person can be said to put any person into fear of any injury to that person, it must appear that he has held out some threat to do or to omit to do what he is legally bound to do in the future. On the other hand, if all that a man does is to promise to do a thing which he is not legally bound to do and says if money is not paid to him he would not do that thing. I cannot hold that such an act amounts to an offence. In the present case, there can be no doubt that after the attachment had been duly made by the amin, the accused had no authority whatsoever to release the crops. The only authority which conld do so would be the authority of the Bank It is suggested that the accused's father is some high official in the Bank and he has influence with the father, and it suggested that the accused might have hinted that he would persuade his fattier to get the crops released. Assuming that to be so, even then the act would not be an offence under Section 383. If a person promises to speak favourably to a person in authority and to do his best to induce him to do something, and in consideration of this promise receives money, I am not prepared to hold that he has threatened to cause injury to the person who gives the money and thereby committed extortion. If the accused was not legally bound to do anything to get the crops released, and if he promised to do something on payment of some money, then, unless the act comes within the definition of a bribe, I am of opinion that he cannot be convicted of extortion.
5. In this view of the matter, even assuming all the facts found against him in connection with the first charge, his conviction was not proper.
6. The second charge against the accused was that he extorted a sum of Rs. 5 from one Bihari (this man is other than Bihari Brahman). He was not a judgment-debtor of the Bank at all. It is said that while Bihari was inside his house, and his cattle were tied outside it, the accused took them away, and when Bihari came out and protested and asked for their release, the accused said he would not release them unless some money was paid to him. Bihari paid Rs. 5 to the accused and got his cattle released. Bihari admittedly was not a judgment-debtor of the Bank and it cannot be disputed that legally his cattle could not be attached in execution of any decree of the Bank. Besides the statement of the complainant Bihari, two other witnesses, Mukan Ram and Dulli Chamar were produced on behalf of the prosecution to prove the payment of Rs. 5 by Bihari. These witnesses have been believed by both the courts below. In the ordinary way I would have been bound to accept these findings as conclusive in revision unless there was something grossly absurd or improbable in the story. I find, however, that in the course of the judgment of the learned Sessions Judge there is a remark to the effect:-- 'It must be remembered that Mr. Tandon admitted that he had heard that the appellant's conduct was not satisfactory.' This is a matter which the learned Sessions Judge took into account when considering the case against the accused in connection with the payment of Rs. 5 said to have been made by Bihari. Obviously the statement made by Mr. Tandon that he had previously heard that the appellant's conduct was not satisfactory, was not legally admissible against him in this case, and it was not, therefore, a statement which should have been considered at all. It was owing to this circumstance that I felt myself bound in fairness to the accused to go into the evidence again and consider it. At the same time I must point out that this statement was not made by either of the courts below a basis for believing the evidence for the prosecution. The courts below were satisfied in their minds that the story told by the three witnesses for the prosecution was substantially true. That being so, I have to see whether there is anything which would justify me to say that the courts below were wrong in believing these witnesses. If the story told by them were grossly impossible or absurd, I would have no hesitation in differing from the view taken by the courts below. The story by Bihari is that, although he had not seen the amin in the village, he found the accused, who was an official of the Bank, 'attaching' cattle, It is true that some months afterwards Bihari did make a statement to the Sub-Inspector that he had complained to the amin about the matter and the amin had refused to hear him. On oath, however, Bihari admitted that he had not seen the amin in the village and had not spoken to him at all. There is certainly, therefore, this fact that Bihari paid this sum of Rs. 5 and after that he took no further steps against him, that is to say, he made no complaint to the Bank nor filed any complaint in court. It was long afterwards, when an inquiry was set on foot by the Assistant Registrar of Co-operative Banks that he made a statement. At the same time it must be borne in mind that an ordinary villager might very well content himself with getting his cattle released on payment of Rs. 5 and may not think it worth while to go all the way to town to make a complaint which would result in a prosecution. If I had been sitting as a court of appeal, it is possible that I might have come to a different conclusion. But in revision, when this oral evidence has been accepted by both the courts below, I do not feel justified in saying that the statements of those witnesses are such as cannot possibly be believed. I do not find in the story told by these witnesses anything so absurd or impossible as to make it difficult to give it credibility.
7. The case, as found against the applicant, therefore, is that he without any right took away cattle belonging to Bihari and declined to release them until he was paid a sum of Rs. 5, and that it was on receipt of Rs. 5 that he released them. A threat held out by the accused that he would not release the cattle belonging to Bihari, and taken away by the accused without Bihari's consent, unless he was paid some money for their release, does, in my opinion, amount to extortion, inasmuch as he did put Bihari in fear of injury to his property, namely, the cattle, as he must have felt that his cattle would remain with the accused so long as the money was not paid to him. This would be sufficient injury within the meaning of Section 44 of the Indian Penal Code.
8. Accepting, therefore, the finding of fact arrived at by the courts below, I cannot hold that no offence under Section 383 was committed with respect to the receipt of this sum of Rs. 5.
9. As I am acquitting the accused of the offence of extorting. Rs. 65 and only upholding his conviction as to extorting Rs. 5, I think that a substantial reduction in the sentence would be just.
10. I accordingly allow this application in part and set aside the conviction and sentence on the accused with regard to extorting Rs. 65 from Jodha and acquit him of that offence. I, however, uphold the conviction for extorting Rs. 5 from Bihari, but reduce the sentence to the period of rigorous imprisonment already undergone by the accused and a fine of Rs. 100. If the accused has paid anything over and above Rs. 100, the excess amount will be refunded. In default of payment of Rs. 100 the accused will undergo rigorous imprisonment for a further period of one week.