A.N. Grover, J.
1. The appellant, who was a police constable, has been convicted under Section 161, Indian Penal Code, and Section 5(2), read with Section 5 (1) of the Prevention of Corruption Act. 1947 and has been sentenced to one year's rigorous imprisonment under each count, the sentences being concurrent, by the learned Special Judge who came to the conclusion that the appellant had obtained Rs. 4 from Ram Parkash Tandon complainant as a reward for releasing him on bail
2. According to Ram Parkash Tandon (P W 13). there was a criminal case which had been instituted by Hira Singh against him and three others in the Court of the Additional District Magistrate. Delhi under Section 323. Indian Penal Code. On 10th October 1963 the appellant along with Hira Singh came to him outside the court of the Senior Sub Judge where he was standing waiting for the hearing of his case in that Court. The appellant told him that a warrant had been issued against him. The complainant requested him to take bail but he replied that he would take him to the police post. Accordingly the complainant was taken there. The testimony of the complainant further was --
'Just as we were at the base of the stairs leading to the police post I requested the accused not to humiliate me. At that moment Nand Lal whom I knew reached there. The accused responded to my entreaties and took my bail. Nand Ram stood surety for me. The bond executed by me is Exhibit PB. Hira Singh and Nand Lal went away. The accused told me to give him chai pani before leaving. I told him that my case might be called in the meantime and, therefore, he should accompany me to the Court of the Senior Sub Judge. Outside the court room of Senior Sub Judge. I gave Rs. 3 to the accused which he accepted, but staled that the amount was very small. 1 told him that I had no more money with me, but that when I would come to the Courts on the fourteenth in connection with the case, for which my bail had been taken. I would satisfy him. I told him that I would pay him Rs. 4 or Rs. 5. I came to the Courts on the 14th at about 11 a.m. I went to the office of the Anti Corruption. There 1 made the statement, Exhibit PK. which is signed by me. Two witnesses were called who came at about 12.15 or 12.30 p.m.
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I produced there the four currency notes. Exhibits P-1 to P-4. of the denomination of Rupee one each The numbers of these were noted down in Exhibit PE * * * *
The currency notes were returned to me. I came downstairs I took the accused from outside the court room of the Additional District Magistrate and went to the hotel, which is in front of New Courts Inside the hotel. I and the accused sal on one side of the table. In the meantime, the two witnesses also came and occupied the seats in front of us.'
Some talk then took place, which according to the complainant was this --
'I told him that he had been very kind in taking my bail I asked the accused that as I have been humiliated, if Hira Singh at whose instance that was done could also be humiliated in like manner. I would please the accused a good deal The accused replied that he should first be paid for the favour already done and he would oblige me in respect of the request then made I handed over the four currency notes of the denomination of Rupee one each to the accused, which he took in his left hand and put in the thaila, which he was carrying. He placed the thaila in his lap. At that the witnesses gave the signal and the Deputy Superintendent of Police entered. Upon entering the Deputy Superintendent of Police disclosed his identity to the accused '
The four currency notes were recovered from the thaila of the appellant on search but he denied that he had received the same by way of bribe. The two witnesses, who have been produced to depose to the incident, were P. W. 4 Krishan Kumar. Lower Division Clerk, Civil Supply Office, who did not support the version of the complainant and was declared hostile, and P. W 5 Shanti Parshad, Upper Division Clerk of the same office. The latter stated that although he sat in the hotel in front of the appellant and the complainant, he was not able to understand the talk which took place between them. He did see the complainant taking out four currency notes of Rupee 1 each which were offered to the appellant but which the latter returned twice. On the third occasion the complainant told him that Rs. 2 were meant for him and Rs. 2 for another person and that he ought to accept the same. Thereupon the appellant took the four currency notes and placed them in the bag Then the officers arrived and the search was made.
3. Mr. Tara Chand Mathur has contended that there is absolutely no evidence lo support the statement of the complainant as lo the talk which took place between him and the appellant in the hotel on 14th October 1963 when the four currency notes of Rupee 1 each are stated to have been handed over to the the appellant. Therefore it has to be seen in what circumstances the money was taken, if at all, by the appellant. He says that on the complainant's own statement the appellant had first granted the bail and later on demanded some money for chai pani which meant more or less an ordinary tip The complainant gave him Rs. 3 but he wanted some more money and that is how on the complainant's own version Rs 4 came to be paid on 14th October 1963 His contention, therefore, is that if the evidence of the complainant with regard to I lie talk which took place on the 14th October 1963 between him and the complainant in the hotel is not proved to have taken place in the manner deposed to by the complainant, the whole incident comes lo this
The appellant had granted bail without asking for any reward nor had he been induced by the offer of any bribe in the matter of doing so. After the bail had been granted, it was wholly innocuous that a tip was either demanded or accepted. He has relied a good deal on a Bench decision of this Court in Nitya Nand Prem Lal v. The State. AIR 1954 Punj 89 a case under the Prevention of Corruption Act, where a railway official had prepared a railway receipt for certain goods which were consigned and had later on been given some money as tip or inam. It was observed that even if it be found from the facts that the small amount which had been left with the accused had been found in his possession, the question nevertheless was whether he had, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtained for himself that small sum of money, in case the money had been left by a person who according to his own showing, was in the habit of tipping railway servants in order to have his work facilitated
In my view the present case is more or less of the same type as was decided by the Bench It is true that there is nothing to show that it was customary to give a tip after bail has been taken in a bailable, warrant but all the same on the evidence of the complainant himself the appellant never demanded any amount by way of reward or bribe or gratification before he finished the entire work of granting the bail. It was only afterwards that he had asked for some tip which was clear from the language used by him 'for chai pani'. It was open to the complainant to decline to give him any tip and even if lie had refused to do so, it would not have been within the power of the appellant to have cancelled the bail or do anything else in the matter of the official work which had already been finished and completed so far as the appellant was concerned.
4. So far as the complainant's statement is concerned about what happened on 14th October 1963 apart from the factum of the passing of the currency notes aggregating Rs. 4, it may be mentioned that the complainant is a very unimpressive witness. His antecedents are very doubtful as it is proved by the evidence of D W 1 and D W 2 that he had lodged a false report and proceedings under sec-lion 182. Indian Penal Code, were taken against him
5. Mr. Mathur has also relied on the decision of H.R Khanna.) in Sham Nath v. The State Criminal Appeal No. 82-D of 1962, D/- 30-3-1964 (Punj) in which the position was somewhat analogus and the allegation about the demand of money consisted of the statement of the complainant who was a person of doubtful antecedents and against whom also proceedings under Section 181. Indian Penal Code, had been started The conviction of the official, who had been prosecuted, was set aside by the learned Judge
6. For the reasons given above. I am not satisfied that the prosecution has succeeded in bringing home to the appellant the charges made against him. It is true that the habit of demanding lips or inam after doing the work cannot possibly be encouraged bill it is difficult to hold in view of the Bench decision that that would constitute any offence under Section 161, Indian Penal Code, or Section 5 (2), read with Section 5 (1) of the Prevention of Corruption Act I. therefore, allow the appeal, set aside the conviction and sentence of the appellant and acquit him.