P L D 1962 Dacca 270 (PLP)

This appeal is by one Syed Md. Khalilullah who was a Sub‑Divisional Manager, Government Acquired Estate, Dinajpur, at the time of the alleged offence "said to have been committed by the appellant: The appellant was put on his trial before the whole time Special Judge, Mr. M: U: Bhuiyan, in Special Case No: 24 of 19; 9 (Dinajpur) under section 5 (2) of Act II of 1947:

2. The prosecution story, in short, was that the complainant (P. W. 1) who was a Tahsildar under the appellant, of Razuria Tahsil in the said District of Dinajpur filed a petition on 9‑8‑58 before the Sub‑Divisional Magistrate, Dinajpur Sadar, to the effect that the appellant asked him to offer him (the appellant) a lump‑sum of rupees as "Jatkat" which, as stated by the com plainant in the said petition, amounts to a bribe. The complainant further stated in the said petition, that he had agreed to pay Rs: 30 to the appellant that day in the office of the Sub‑Divisional Manager at 4 p.m. He sought protection of law in this matter. Upon this application, the Sub‑Divisional Magistrate in charge directed the District Anti‑Corruption Bureau Inspector to do the needful. Thereafter, it is said that the petitioner made over three ten‑rupee currency notes bearing Nos. DC‑214492, LU‑174224 and DD‑279827 to the Police Inspector. These three currency notes were produced by the Inspector before the Magistrate who initialled those after checking the numbers. Thereafter, the District Anti‑Corruption Bureau Inspector and P. W. 3 Jamaluddin, another Tahsildar of the Acquired Estate, accompanied the complainant to the office of the appellant. Having gone near the office the Inspector is said to have handed over those initialled currency note, Exhibits 1 to 3, to the complainant (P. W. 1) to hand over the sane to the appellant and give a signal to the police after the payment was made. The complainant is said to have thereafter gone into the office of the appellant and made the payment and having done so gave a signal to the Police Inspector. The Police Inspector immediately thereafter, in company of Taslimuddin Ahmed and Abdul Majid, the two search witnesses, whom he procured from the wayside, entered the office of the appellant and challaned him for having taken bribe from the complainant and having disclosed his identity he searched the person of the appellant and brought three currency ten‑rupee notes from the left pocket of the shirt that the appellant was wearing at the time. This recovery of the currency notes was witnessed by P. W. 1, P. W. 4 and P. W.

5. Thereafter a F. I. R., was lodged by the Inspector of the District Anti‑Corruption Bureau with the police. The police having completed the investigation submitted charge‑sheet against the accused under section 5 of the Act II of 1947.

3. The appellant took a bold defence. In his examination under section 342 of the Criminal Procedure Code, he gave an explanation as to how these three ten‑rupee currency notes initialled by the Magistrate came into his possession. In his cross‑examination of the prosecution witnesses, he tried to show that it was out of malice that the complainant has tried to trap the appellant on a false charge of asking for bribe. In his examination he said that he did not take any bribe from the complainant and that as he was in need of change for a hundred rupee note, he gave the hundred rupee note to waijuddin the complainant, who brought the change and gave it to him which he kept in his pocket. While giving back this change the complainant has played the trick on him. In support of this story he named one Abu Talba, a Tahsildar of the Acquired Estate, who was present in his chamber at the time when he gave the hundred rupee note to the complainant. In support of his case that the complainant has falsely implicated him cut of malice, he had certain documents exhibits in the case and also had put suggestions to the prosecu tion witnesses including the complainant.

4. The learned Special Judge accepted the prosecution story, convicted the appellant under section 5 (2) of Act II of 1947 and sentenced him to rigorous imprisonment for six months and to pay a fine of Rs. 100, in default to a further rigorous imprison ment for one month.

5. The prosecution witness No. 1, the complainant, in the very first sentence of his examination‑in‑chief, said that the appellant demanded Rs. 100 from him as bribe on a threat of dismissal of the complainant from service. He has further in his examination‑in‑chief given the story of his petitioning the Sub -Divisional Officer and handing over the three ten‑rupee currency notes for signature of the Magistrate and for laying the trap. In his cross‑examination he said that the bribe of Rs. 100 wan, asked of him by the appellant about one Sear before the date of occurrence. He admitted that no one was present when the appellant had demanded this bribe from him on several occasions within the period of one year. According to the complainant, the appellant had made the last demand for the bribe in June 1358. He further said that he had told about his demand of bribe by the appellant to ore Ghyasuddin, a clerk in the office of the appellant, and also one Hakimuddin, an accountant in the office of the Revenue Deputy Collector, Dinajpur. None of these two named persons have come to support this story of the com plainant, or in other words, his evidence remains uncorroborated on the point of demand of this Rs. 100 by the appellant for number of times in the course of a year from the date of occurrence. He further said that he had only Rs. 40 with him at the time when he handed over the three ten‑rupee currency notes to the police. About the time when the amount of the bribe was settled on that date, he raid that it was 11 a.m. To a question put in him that he had hundred rupees with him at the time when he handed over the thirty rupees to the police, he gave a clean denial. He had to admit in gross‑examination that there was a complaint against the complainant by some persons of the Tehsil of which he was in charge, made to the Revenue Deputy Collector, which was sent for enquiry to the appellant and on 26‑5‑58 the appellant had fixed the date for holding such enquiry in the locality. He also admitted that he did not attend the enquiry. Of course he gave the explanation that he was on leave. He also admitted that the Appellant had called for his explanation on 28‑5‑56 as to why disciplinary action should not be taken against him for leaving the station without permission and for disobeying the lawful order of the superior. He also admitted that the appellant had reported to the Revenue Deputy Collector for stoppage of the payment of salary to the complainant for the month of May 1958. Thu case of the appellant that he handed over a hundred rupee note to the complainant for change was also put to him to which he has of course given a denial. Prosecution witness No. 2 is the Magistrate Mr. Abul Hossain, who has spoken of the petition of the complainant and the action that had then taken on it . Prosecution witness No. 3 Jamaluddin Ahmed who is another Tehsildar and had accompanied the complainant to the S. D. O.'s Office at the time of the lodging of complaint by him had admitted in his cross‑examination that he had seen rupees one hundred in the possession of the complainant at the time the complainant had handed over the three ten‑rupee currency notes to the police. Prosecution witness No. 4 is one Taslimuddin Ahmed. He was a witness to the search made by the police of the person of the appellant. He was picked up from the road by the Inspector and taken into the office of the appellant for conducting the search. In his examination‑in‑chief he has said the following: "Inspector disclosed his identity and charged the accused (identified) to have obtained Rs. 30 as bribe from Waizuddin and searched the person of the accused and recovered Rs. 125 or Rs. 150 from the left pocket of his haoi shirt." He admitted in his cross‑examination that the amount found in the pocket of the appellant at the time of search consisted of 10 and 5 rupee notes. He also admitted that the Inspector had seized out of the entire amount found in the pocket of the appellant only three ten rupee notes. P. W. 5 is another search witness by the name of Abdul Majid who was a student of S. M. College, Dinajpur at the time of occurrence. He was picked up from the road by the Inspector and taken to witness the search. His evidence in examination‑in -chief is that the Inspector having gone into the room of the appellant charged him with having taken bribe of Rs. 30 from Waizuddin but the accused denied having taken any bribe. Thereafter, according to this witness, the Inspector searched the person of the appellant and recovered Rs. 125 from the left pocket of the shirt in the wearing of the accused. P. W. 6 is the Inspector himself who conducted the search and recovered the money. In his examination‑in‑chief he has said that he having searched the person of the appellant recovered Rs, 30 out of about Rs. 140 from the left pocket of the shirt of the appellant. This Inspector admitted in his cross‑examination that he had examined Ghyasuddin, Clerk of the office of the Sub‑Divisional Manager of the Acquired Estate. This is the same Ghyasuddin who was named by the complainant in his evidence to be one of the persons whom he told about the appellant's demanding bribe from him. D. W. 1 Abu Talha who was named by the appellant in his examination under section 342 in support of his case that he had given a hundred rupee note for change stated that he was present in the office of the appellant at the time when the appellant had given Waizuddin a hundred rupee note for change. On being challenged in cross‑examination that he had not seen the handing over the hundred rupee note by the appellant to the complainant, he gave a bold and assertive denial. This is all the oral evidence in this case.

6. Apart from this, as I have already stated, there are number of documents produced in this case, some of which are for the prosecution, and the bulk of which are for the defence. From these documents, it is clear that there was a complaint against the complainant by two persons of Razuria Tahsil to the Revenue Deputy Collector making certain serious allegations against the complainant: which was enquired into by the appellant. The appellant had given notice of the date of enquiry to the complainant and to Waijuddin (P. W. 1). These notices fixing the date of enquiry were issued .y the appellant on 14‑5‑58 to the persons concerned including the complainant. The complainant applied for 10 days casual leave with effect from 18‑5‑58 and without taking any permission from the appellant had left the headquarters. The application for casual leave from 18‑5‑58 was rejected but tie was granted casual leave with effect from 28‑5‑

58. This the appellant did in view of the fact that the enquiry was fixed for the 26th of May, 1958. Although there was a com promise petition filed by the persons who lodged the complaint against the complainant Waijuddin at the time when the appellant had gone to Razuria for holding the enquiry, yet it is evident from the exhibits on record that the appellant had reported to the Revenue Deputy Collector against the complainant Waijuddin (P. W. 1) on the ground that disciplinary action be taken against him for leaving station without permission and for disobeying lawful orders of the superior. The appellant further recommended to the Revenue Deputy Collector that the salary of the com plainant for the month of May be stopped. All this correspon dence was dated sometime in June. From this evidence, it becomes clear that there was bad feeling created between the complainant and the appellant.

7. Now the question is as to how far the prosecution has been able to prove the allegations of demanding and taking of bribe by the appellant and also as to how far the appellant's explanation given for the possession of the three‑signed currency notes in the facts and circumstances of the case can be accepted to show that there was reasonable cause for his being In possession of these three currency notes.

8. Mr. Syed Abdul Ghani, the learned Advocate appearing for the appellant, has submitted that, in view of the decision of the Federal Court of undivided India in the case of Lieutenant Hector Thomas Huntley v. Emperor (A I R 1944 F C 66), it cannot be said in the facts of the present case that the prosecution has been able to establish the allegations of demand and acceptance of bribe in this case by the appellant. The Federal Court of India in that case, which was a case under section 6 (2) of the Criminal Law Amendment Ordinance XXIX of 1943, has said: "A charge under section 161, Penal Code is one which is easily and may often be lightly made, but is the very nature of things difficult to establish, as direct evidence must in most cases be meagre and of a tainted nature. These considerations cannot however be suffered to relieve the prosecution of any part of the burden which rests upon it to establish the charge beyond reasonable doubt. If after everything that can legitimately be considered has been given its due weight, room still exists for taking the view that however strong the suspicion raised against the accused every reasonable possibility of innocence has not been excluded, he is entitled to an acquittal." In that case the Station Master of Jamalpur was found to have possessed two ten rupee currency notes initialled by the Magistrate which were alleged to have been taken by him from the complainant who wanted to took some livestock from Jamal pur to Bally. The explanation given by Huntley in that case for the possession of the two currency notes was that he had taken those towards demurrage charge that may have to be paid by the complainant for the wagons for loading the livestock. The Federal Court of India held that the explanation given by Huntley was acceptable in the facts and circumstances of the case, or, in other words, was plausible or capable of explaining away his possession of the two currency notes. The present appellants case stands on a much better footing, in my opinion, than the case of Huntley.

9. In the case of M. C. Mitra v. The State (A I R 1951 Cal. 524), the Court observed as follows: " The presumption against the accused under section 4, Prevention of Corruption Act, 1947, regarding the motive or reward or absence car Inadequacy of consideration is a rebuttable presumption. The presumption may be rebutted by the accused not only by any oral testimony of witnesses called on behalf of the accused but also by a statement of the accused under section 342, Criminal Procedure Code and by any document produced on behalf of the defence of the accused or by the surrounding circumstances. In this case the presumption against the appellant with regard to the motive has in my judgment been replaced or rebutted by the fact of the match box tender referred to not only by the statement of the accused under section 342, Criminal Procedure Code but also by Exh. A and surrounding circumstances." Mr. Ghani also relied on several other passages occurring in this Calcutta decision on the question of proof, motive and other things; and since the wordings of section 4 of the Prevention of Corruption Act, 1947, upon which the decision was given by the Calcutta High Court, and the wordings of the Act, upon which I am considering the present case, being the same, I think the decision of the Calcutta High Court applies to the facts of the present case on all fours ; and although the decision of the Calcutta High Court is not binding on me, I have no hesitation in accepting the interpretation and principles laid down therein.

10. Mr. Ghani has also relied on another decision of the Sind Chief Court in the case of The Crown v. Amjadali (P L D 1954 Sind 126) In this case, Lari, J., has discussed a number of cases including the Calcutta case just cited and has held that the prosecution must first beyond any reasonable doubt establish that the accused had accepted or obtained or agreed to accept or attempted to obtain for himself any bribe or remuneration which was not legal. The facts of that case stand in a worse position than the facts of the present case. This case goes to support the contention of Mr. Ghani that the prosecution has failed to establish its case against the appellant. The other case relied on by Mr. Ghani is that of the Federal Court of Pakistan reported in Safdar Ali v. The Crown (P L D 1953 F C 93).

11. In the present case there is no evidence on record, either documentary, oral (except the uncorroborated testimony of P. W. 1) or circumstantial, to establish that the appellant had ever asked for any bribe from the complainant or that the appellant had on the 9th of August, 1958 renewed his demand for the bribe or that he had agreed to accept Rs. 30 or that with a consenting mind he accepted the three currency notes thrust in his pocket along with the rest of the change of the hundred rupee note that he asked for from the complainant. On the contrary, I find from the evidence on record that the relations between the complainant and the appellant were such that for the appellant to ask for the bribe on the 9th of February, 1958 from the com plainant would be asking for the nose to be put round his neck by the complainant. There is nothing on evidence to show that the superior authority of the appellant had asked for his report on the complaints to them against the complainant upon which there would be an occasion for the appellant to take some illegal gratification from the complainant to give a good conduct certificate to him, On the contrary, I find that the appellant was pursuing the complainant by certain reports to the higher autho rities for disciplinary action and stoppage of salary of the complainant for his misconduct and disobedience. The com plainant stands uncorroborated on this point and his uncorroborated testimony too could be accepted, had it been possible for the Court to hold that the man was speaking the truth on oath from the Box. It will be evident from his evidence, portions of which I have quoted above, that he had told deliberate lies standing in the Box at least with regard to his possession of the hundred rupees at the time when he was handing over the three ten‑rupee currency notes to the Police Officer. P. W. 3, his companion, who had accompanied him to the police, the Magis trate and back to the office of the appellant for laying the trap has said that he had seen 100 rupees in the possession of the complainant at the time he handed over the three ten‑rupee currency notes to the police ; whereas the complainant has categorically denied to have possessed that amount of money at that point of time. There can be no reason for P. W. 3 to have told a lie on this point. Secondly P. W. 1, or for that matter, the prosecution, did not bring forward Ghyasuddin and Hakim uddin, the only two persons who might have corroborated the complainant on the point of the appellant asking for the bribe.

12. In support of the explanation given by the appellant, we find that D. W. I who has no reason to speak for or against the appellant has testified to the fact that he had seen the appellant giving a hundred rupee note for change to the complainant Waijuddin. That the appellant was in the possession of more than 100 rupees at the time when the money was recovered from his pocket is testified to by the two search witnesses and the Inspector himself. The pocket from which the money is said to have been recovered is the left‑hand pocket of the shirt of the appellant. All the witnesses have said so and the money that was brought out was anything between 125 and 150 rupees. All those were in 5 and 10 rupee currency notes. It is, therefore, not at all improbable that the appellant had given the hundred rupee note for change to the complainant, and for the complainant to have three of those currency notes initialled by the Magistrate creating a false charge of demand of bribe by the appellant and thrusting this along with the rest of the 7 currency notes‑some 10‑rupee and some 5‑rupee notes‑when he returned the change to the appellant. In support of the view that appellant's explana tion, if reasonable, should be accepted, I may refer to the cases reported in 43 Cr. L J 234; A I R 1943 P C

211. In the petition' of complaint he had said that the appellant had demanded a lump-sum. Then he mentioned that it was Rs. 30 that was asked for. He even did not mention in the petition of complaint that the lump‑sum was 100 rupees that was demanded by him for the last one year. From all these, it becomes impossible to accept the story made out by the complainant that any bribe was asked for by the appellant from him at any point of time and that he actually agreed to accept Rs. 30 as bribe and finally accepted the same knowing that he was receiving that 30 rupee notes asked for by him from the complainant at the time when it was given to him. In these facts of the case, I am of the opinion that the cases cited above are all applicable and in view of those decisions and also in view of the facts found, I have no hesitation to come to the conclusion that the prosecution in the present case has miserably failed to establish the demand and acceptance of the bribe by the appellant from the complainant. The reasons given by the learned Special Judge for convicting the appellant are not based on any sound principles of law or even on the facts established in the case. I, therefore, agree with Mr. Ghani that this judgment of the learned Special Judge must be set aside.

13. It would like to make it clear that in the facts and circumstances, the case is not one, where it can be said that the appellant is entitled to a benefit of doubt. I would rather say that it is a case of clear acquittal where the prosecution has failed to establish its case from the beginning to end.

14. The appellant's explanation for possessing the money in question and the reasons for which the complainant might have lodged this false complaint against him are plausible and, there fore, acceptable without any hesitation whatsoever.

15. In the result, therefore, this appeal is allowed. The conviction and sentence passed by the learned Special Judge is set aside and the appellant is acquitted of the charge. He will be discharged from the ball bond and the fine, if realised, will be refunded to him. H. B. Appeal accepted.