T.U. Mehta, J.
1. The appellant was the first accused in Special Case No. 1/74 of the court of Assistant Judge. Broach, in which he is convicted for the offences under Section 161 I.P.C. and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. He Is sentenced to suffer R.I, of one year and to the payment of fine of Ra 200/- in default of which he is ordered to undergo further R.I. of 2 months for the offence under Section 5(2) of the Prevention of Corruption Act. The learned trial Judge has not recorded any separate sentence for offence under Section 161 I.P.C.
2. Short facts of the case are that the appellant-accused was serving as a clerk in the office of the Mamlatdar, Broach, in the month of December, 1972. Original accused No. 2 one Ambalal Kesurji Desai, who has been acquitted by the learned trial Judge, was at that time serving as the Mamlatdar.
3. The case of the prosecution is that the complainant Usmangani Gulam Rasul Mansury, whose deposition appears at Ex, 11, and his brother Mohamed husain Gulam Rasul, whose deposition appears at Ex. 39, were required to file affidavits regarding the birth dates of their children before the school authorities. Since these affidavits were to be sworn in presence of the Taluka Magistrate, (i.e. the Mamlatdar), they visited the office where both the accused persons were working, on 27th December, 1972. They first approached the present appellant, who was working as a clerk to the Mamlatdar. The appellant-accused thereupon directed them to Mamlatdar-accused No. 2. Both these persons thereupon approached the accused No. 2 for the purpose of making their affidavits. The accused No. 1, however, informed them that their identification would be necessary. This identification was supplied by the complainant and his brother by calling one Umerji Ismail Valibhai, who was working at that time as Police Patel of Dehgam. Thereafter, accused No. 2 initialled the application with dates and directed the complainant and his brother to approach the present appellant for further formalities. The complainant and his brother thereupon approached the appellant and handed over the papers to him. The case of the prosecution is that the appellant, however, put the papers aside on his table and engrossed himself in some other work. The complainant and his 'brother thus waited for 10 to 15 minutes and thereafter requested the appellant to attend to their work. They also asked the appellant whether Umerji Ismail Valibhai, who had supplied the identification, should go. The appellant allowed said Umerji to go but kept the complainant and his brother waiting without attending to their work. After 10 to 15 minutes, the complainant again requested the appellant to attend to his work. It is said that at this stage the appellant demanded illegal gratification of Rs. 20/- explaining that he and the Mamlatdar would require Rs. 5/-each for every affidavit as 'Chah Pani'. According to the prosecution, the appellant thus demanded total illegal gratification of Rs. 20/- as there were two affidavits to be done. It is said that the complainant told the appellant that he had no money with him. The complainant and his brother, therefore, left the office of the appellant.
4. On the next day i.e. on 28th December, 1972, the complainant approached the Anti-Corruption Department. As the concerned officer of that department was busy on that day, the complainant was asked to approach him on the next day. Accordingly on the next day i.e. on 29th December, 1972 the complainant approached the Anti-Corruption Officer Mr. Gohel, whose deposition is found at Ex. 50. The said officer recorded the complaint and called the panchas. One of the panchas was panch Fajal Mohmed, whose deposition is found at Ex. 21, Complainant submitted four notes each of Rs. 5/- denomination. All these four notes were smeared with anthracene powder and then usual experiment of the effect of ultra violate rays on anthracene powder smeared on the said notes, was carried out with the help of ultra violet lamp in presence of the panchas. The powdered notes were thereafter kept in possession of the complainant and panch Fajal Mohmed was instructed to keep the company of the complainant and to see and hear what transpired between the complainant and the accused at the time when demand for illegal gratification was made by the accused and the powdered notes were transferred.
5. According to the above referred arrangement, the complainant, panch Fajal and the raiding party proceeded to the office of the Mamlatdar-accused No. 2, where the accused persons were working. Even the complainant's brother Mohmed Hussain (Ex. 39) was with the complainant. It is said that the complainant and his brother approached the present appellant at his table and panch Fajal kept himself at a short distance of about 11/2 ft, from the table of the accused-appellant. After seeing the complainant and his brother, the appellant is said to have repeated his demand by asking whether they had brought the amount as demanded. The complainant replied in the affirmative and asked what amount should be given, whereupon the appellant is said to have demanded the amount of Rs. 10/-. The complainant thereupon handed over to him two powdered currency notes each of Rs. 5/-. The appellant received that amount and there after put the seals of the office of the Mamlatdar and finished other formalities required for the completion of the affidavits. It is said that after doing this, he took the papers to the Mamlatdar (original accused No. 2). The case of the prosecution is that at that time even the complainant and his brother were taken inside the cabin of the Mamlatdar and the Mamlatdar had asked the present appellant whether the complainant and his brother had paid the amount. It is said that the appellant replied in the affirmative and handed over the amount of Rs. 6/- to the Mamlatdar. This amount consisted of one (five rupee note which was smeared with powder and another one rupee note which was not so smeared. The Mamlatdar put this amount into his pocket and thereafter did his part of the work with a view to complete the affidavits.
6. By this time, the required signal was given to the other members of the raiding party. These members thereafter approached the accused No. 1 and found out from his possession one powedered currency note of Rs. 5/-. Stains of anthracene powder were noted on the hands and clothes of the present appellant. Similar raid was carried out in the cabin of the Mamlatdar, who was also found in possession of powdered currency note of the denomination of Rs. 5/-. Necessary panchnama was drawn and thereafter the present case was charge-sheeted.
7. The appellant-accused in his statement recorded under Section 342 of Criminal Procedure Code. has admitted that he was working as a clerk in the office of the Mamlatdar, Broach, at the relevant time. He has also admitted that the complainant and his brother had approached him on 27th December for the purpose of making affidavits and that both of them had to wait for some time after they approached the Mamlatdar and submitted the papers to him, for affixing the seals. His explanation for this waiting however, is that he was busy with scarcity work and that he was required to go with the Mamlatdar to the office of the Collector regarding said scarcity work and hence he requested the complainant and his brother to wait for doing work regarding the affidavits in question. The appellant does not admit having demanded any illegal gratification from the complainant and his brother on 27th December, 1972 He, however, states that on that day he had asked the complainant to contribute something to the Military fund, which was collected for the purpose of 'Flag Day'.
8. As to the events which took place on 29th December, 1972, the explanation of the appellant is that after the complainant and his brother approached him on that day he demanded Rs. 10/-as contribution for the benefit of Military on account of Flag Day and it was in compliance with this demand that the complainant paid two notes, each of Rs. 5/-. The appellant thus does not admit having received this amount of Rs. 10/- as bribe. The specific case, which is put forward by the present appellant is that by his circular dated 3-10-72 Ex. 25, the Collector, Broach, had issued a Memorandum to different Mamlatdars in his district asking them to collect as much amount as possible on account of the Flag Day. Pursuant to this, circular, the Mamlatdar, Broach, received 1200 token cards and 16 car flags which were required to be sold to the public, with a view to collect the necessary amount. Pursuant to this circular of the Collector, the Mamlatdar, Broach, had distributed these 1200 token cards to different Aval Karkuns in his office with instructions to sell away the Flags before 7th December, 1972. The contention of the appellant is that though the date of the said collections was over on 7th December, 1972, he requested the complainant to contribute to the collection of the Flag Day on 27th December, 1972, because, the total collections were expected to reach the office of the Collector latest by 31st March, 1973. Evidence recorded in the case shows that Flags were to be sold only by Aval Karkuns working in the office of the Mamlatdar and that no clerks including the appellant-accused were entrusted with the work of this collection. However, the contention of the appellant-accused is that even though there was no circular entrusting him with the task of collecting amounts for the Flag Day, he was orally instructed by his Mamlatdar- the accused No. 2- to make this collection as he had more opportunity to come in contact with many members of the public. The contention of the appellant-accused, therefore, is that it was pursuant to this oral instruction of his Mamlatdar, that he had requested the complainant and his brother to make contribution to the Flag Day and that the complainant had paid the amount of Rs. 10/- to him pursuant to this request.
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15. Considering the above discussed evidence, we are satisfied that the learned trial Judge was right in holding that the amount in question was not received by the appellant as contribution towards the flag fund. We are of the opinion that this particular defence is raised by the appellant accused only with a view to escape from the legal consequences of the acceptance of the amount which was obviously received by him as illegal gratification for doing the work regarding the affidavits submitted by the complainant and his brother.
16. Apart from what is stated above, we find that even if it is believed that the disputed amount of Rs. 10/- was received by the appellant as and by way of contribution to the flag fund, the appellant cannot escape from the criminal liability if it is found that he had collected any contribution towards the flag fund as and by way of consideration for discharging his official duties, One of the important requirements of Section 161 I.P.C. is the acceptance of any gratification whatsoever other than the legal remuneration as a motive for doing or forbearing to do any official act. Therefore, the moment it is found that a particular amount was received for doing or forbearing to do an official act and if that amount is not the legal remuneration for doing or forbearing to do that act, the offence contemplated by that section, would be complete, even though it is proved that the amount was received for a laudable cause. The principle underlying this rule is that every public servant is expected to perform his duties and to discharge his functions irrespective of any consideration which does not amount to a legal remuneration. Therefore, if a public servant insists upon a particular payment, which does not amount to a legal remuneration as consideration for the discharge of his duties, he does commit an act which amounts to an offence under Section 161 I.P.C. even though it is found that he received that amount not for his personal purpose, but for a charitable purpose or for the purpose of his employer. Even the employer is not entitled to refuse to discharge his duties, which are of public nature and make it a condition precedent upon any payment for any cause, however laudable the said cause may be. This principle is well stated by Jardine J. in Imperatrix v. Appaji (1897) JLR 21 Bom 517 at p. 520. Speaking about the scope of Section 161 I.P.C. he has observed as under:
The question then arises whether what was done comes within the meaning (of Section 161 I.P.C.). The plain words exclude the defence that the benefit bargained for was to go to somebody else, and also exclude the notion that an officer is protected if he agrees to let his official acts be swayed by the motive of accepting a gratification to be used professedly for advancing some public, not private, object, such as charity, science, or religion. That kind of motive is different to the desire of private lucre, but it may easily lead to oppression, and the subject in the pursuit or enjoyment of a right ought not to be hampered by any thought of pleasing the officer by promising a subscription of any kind, however laudable. Nor ought an officer to be affected in his duty to the crown in dealing with a subject by such a consideration. There is no distinction between offices held at common law or by statute.
In a later case, Chief Justice Norman Macleod of Bombay High Court has observed in Emperor v. Amiruddin Salebhoy Tyabjee (1922) 24 Bom LR 534 : 23 Cri LJ 466 as under:
I should be establishing a very dangerous precedent if I were to hold that an officer is protected if he agrees to allow his official acts to be swayed by the motive of accepting a gratification to be used not for his own personal benefit but for some public object, such as charity, science or religion.
These observations apply fully to the facts of the present case if it is believed that the appellant-accused had received the amount of Rs. 10/- for flag contribution in consideration of the work which the complainant wanted to be done with regard to his affidavits.
17. Shri Thakore contended on behalf of the appellant that evidence offered by the prosecution does not clearly show that the amount of Rs. 10/- was demanded by the appellant in consideration of the performance of his duties regarding affidavits, which were submitted to him. On perusal of the record of the case, we find that this contention is not acceptable. Most important evidence in this connection is the evidence tendered by the prosecution through the deposition of panch witness Fajal Mohmad Ismail ex, 21. In para 3 of his deposition, the witness says that on 29th December, 1972, when the complainant approached the appellant, the was hardly at a distance of about 11/2 ft, from the table of the appellant. He claims to (have heard the following talk which took place between the complainant and the appellant-accused before the notes were handed over to the appellant-accused, To put this talk in the words of this witness:
I heard the talk that transpired between the complainant and the accused No. 1. The accused No. 1 told the complainant whether he had brought the money as instructed for the affidavits. The complainant said yes. The accused No. 1 told the complainant to give him Rs. 10/-. The complainant took out four currency notes from his pocket and gave two of them to accused No. 1. Other two were placed back in his pocket.
The above portion of the deposition of the witness clearly shows that on 29th December, 1(972 the appellant-accused received the amount of Rs. 10/- from the complainant 'for the affidavits'. Therefore, if this part of the deposition of the witness is found reliable, it becomes very clear that even if the appellant had demanded the amount of Rs. 10/- as contribution towards flag fund, that contribution was linked with the performance of the appellant's duty regarding the affidavits, which were submitted to him by the complainant. In other words, the contribution to the flag fund was made a condition precedent to the performance of the appellant's duties with reference to the affidavits submitted to him. This becomes clear even by reference to the statement made by the appellant-accused explaining for what purpose he received the amount of Rs. 10/-from the complainant. The relevant question which was put in this connection to the appellant by the lower court during the course of his statement recorded under Section 342 Criminal Procedure Code, and the answer given by the appellant-accused to that question are as under:
Q. It is in evidence that the complainant and his brother came to your table and produced the papers of affidavits when you demanded Rs. 10/-. from him. What have you to say about it?
A.They paid me Rs. 10/- on demanding the amount of contribution for the benefit of military persons.
Earlier in the same statement the appellant-accused has stated as under with reference to the events which took place on 27th December, 1972:
Q. It is in the evidence that about 16 minutes thereafter the complainant told you to do the work of sealing and signing the affidavits and to allow Umerji Ismail Valibhai to go. What have you to say about it?
A. It is true, but I was required to go with Mamlatdar to the Collector respecting the work of scarcity and I told the complainant to wait and that his work of affidavits would be done after we returned from the Collector. I had also told the complainant to contribute something in the military fund.
Looking to one above answers given by the appellant-accused and also considering the fact that the work regarding the two affidavits submitted to him was not finished on flimsy excuses on 27th December, 1972, and was finished on 29th December only after the amount of Rs. 10/- was paid, we don't find it difficult to come to the conclusion that the doing of that work was made by the appellant conditional upon the payment of Rs. 10/- and. therefore, even if this payment of Rs. 10/- is presumed to be the payment of contribution towards flag day fund, the ingredients of the offence contemplated by Section 161 I.P.C, are fully satisfied.
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19. In view of what is stated above, the only conclusion which would follow is that the disputed amount of Rs. 10/- was received by the appellant-accused as illegal gratification. Even otherwise his case is covered by the presumption contemplated by Section 4 of the Prevention of Corruption Act and so long as this presumption is not satisfactorily rebutted, his conviction under Section 161 I.P.C. and Section 5(2) of the Prevention of Corruption Act (is justified?). Therefore, this conviction is confirmed.