KUNHI MOHAMMED Vs. STATE

JUDGEMENT

(1.) The accused in Criminal Case No. 2 of 1957 of the court of the Special Judge (Sessions Judge), Trivandrum, who has been convicted under S.161, I. P. C., and S.5 (i) (d) read with S.5 (2) of the Prevention of Corruption Act (Central Act 2 of 1947) and sentenced to undergo simple imprisonment for three months and pay a fine of Rs. 50/-, in default of payment of which he is to undergo imprisonment for a further term of two weeks, is the appellant in this case. The charge against him was that, being a public servant, he received, at about 5-30 P. M. on 23 8 1956, an illegal gratification of Rs. 7 from Pw. 2, a forwarding agent at Trichur, for booking 57 bags of wet skins which the latter had to send by railway from Trichur.

(2.) The prosecution case is as follows:- The accused was one of the Assistant Goods Clerks of the Trichur Goods Shed of the Southern Railway. On 31-1-1956 Pw. 2, who used to send goods by railway from Trichur, sent a petition, Ex. P12, to the railway authorities complaining that corruption was rampant among the clerks of the Trichur Goods Shed and making specific allegations against one K. A. George who was a Booking Clerk. Although an officer from Madras came down to Trichur and questioned Pw. 2 about the allegations in the petition, no further action was taken on it; and so, on 11-7-1956 he sent another petition, Ex. P13, to the railway authorities-this time making allegations against both K.A. George and the present appellant, K. A. Kunhi Mohammed (who will hereafter be referred to in this judgment as the accused). The substance of the complaint was that the two clerks were demanding and receiving bribes from the forwarding agents, and it was also stated in the petition that the forwarding agents were being put to great difficulties and hardships and the situation was so desperate that if the railway authorities still took no action the petitioner would be forced to take action himself against the erring clerks. Copies of this petition were also sent to the Adviser to the Rajpramukh (Travancore-Cochin State) and the General Manager, Southern Railway. In July 1956 Pw. 2 had to send from the Trichur Railway Station 57 bags of wet skins. Of these he sent 30 bags on the 14th and the remaining 27 bags were to be sent on the 23rd. At the time of the booking of the 30 bags the accused and George demanded a mamool or illegal gratification at the rate of 2 annas per bag. But as Pw. 2 had then no sufficient money with him he said that he would pay the mamool for the entire 57 bags on the 23rd, when the remaining bags were to be booked. Early in the morning on 23-8-1956 Pw. 2 went to Pw. 12, the Investigating Officer of the Delhi Special Police Establishment, Madras Branch, who was stationed at that time at Trichur, and gave him a written complaint, Ext. P2, alleging that the accused and George were demanding illegal gratification and that he would have to pay the same. Pw. 12 advised Pw. 2 to go once again to the Goods Shed and ascertain whether the clerks were still insisting upon payment of the bribe and then report to him, and Pw. 2 therefore went again to the Goods Shed at about 10 A. M. on 23-8-1956. George was not there at that time, and the accused who was there insisted on payment of the bribe. Pw. 2 returned and reported this to Pw. 12, and thereupon, Pw. 12 obtained the sanction of the Special First Class Magistrate, Trichur, to investigate the case under S.5 (A) (c) of the Prevention of Corruption Act and laid a trap for the accused. Summoning Pws.3 and 5, two Councillors of the Trichur Municipal Council, he asked Pw. 2 to produce the money which would have to be paid to the accused in pursuance of his demand. The mamool for the 57 bags at the rate of 2 annas per bag amounted to Rs. 7-2-0. Pw. 2 produced five one-rupee notes and one two-rupee note. After preparing a mahassar attested by Pws. 2, 3 and 5, in which the numbers of the currency notes were noted, Pw. 12 returned the money to Pw. 2 and asked him to go to the goods shed and pay it to the accused if the latter again demanded the bribe. He also sent Pws. 3 and 5 to the goods shed telling them that he himself was following them and asking them to give him a signal if the accused received the bribe from Pw. 2. Pw. 12 also contacted the local Tahsildar, Pw. 4, and requested him to be present at the time of the trapping. Accordingly, all these persons went to the railway station and they were there at about 5. 30 P. M. Pw. 4 had also to supervise the unloading of a consignment of milk powder and butter oil which was sent to him for free distribution. On reaching the railway station Pw. 2 went into the goods shed and Pws. 3 and 5 posted themselves near its door. On the completion of the necessary documents for booking the 27 bags which were to be sent on that day the accused demanded the mamool or bribe, and when he stretched his hand Pw. 2 placed the money in his hand. On seeing this, Pw. 5 gave the agreed signal to Pw. 12 and the latter came running to the goods shed followed by his orderly, Pw. 11. The accused went out of the goods shed on receiving the money from Pw. 2 and was absent from there for two minutes during which time he bought from a person outside the shed a D. B. Charity lottery ticket for Rs. 2; and he was just returning to the shed when Pw. 12 reached the spot. As the accused was just entering the shed by one door Pw. 12 also entered the shed by another door. As he came in, Pw. 12 asked Pw. 2 who Kunhi Mohammed was, and Pw. 2 pointed out the accused to him. Seeing this the accused hastily went out of the shed and Pw. 12 followed him calling out his name and caught him as he was running round a cart which was on the platform. While he was thus running the accused took some currency notes from his pocket and threw them away, and after he was caught Pw. 12s orderly (Pw. 11) picked them up from the platform on Pw. 12s order. Four one-rupee currency notes were thus picked up from the ground by Pw. 11 and they bore the numbers of four of the notes which Pw. 2 had produced earlier in the evening and which were noted in the mahassar, Ext. P7. Taking the accused to the goods shed Pw. 12 searched him in the presence of Pws. 2, 3, 4, 5 and 8 and recovered from his left breast pocket the lottery ticket (M.O.3) and another one-rupee note which also was one of the notes produced by Pw. 2 earlier in the day and noted in Ex. P7. From another pocket Pw. 12 recovered four one-rupee currency notes, some changes, and certain other articles. After preparing mahassars about the search and the articles seized and making an entry in the Railway Station Diary about the incident, Pw. 12 left the place and made a report to his headquarters at Madras. Ext. P 23 dated 28-8-1956 is the first information report. The charge against the accused was ultimately laid in the Sessions Court on 20-7-1957 by Pw. 13, the successor-in-office of Pw. 12.

(3.) The accused pleaded not guilty in the Sessions Court. In his statement under S.342 of the Code of Criminal Procedure he, however, admitted having received Rs. 5 from Pw. 2 while the latter was in the goods shed in the evening on 23-8-1956. According to him, it was the turn of George to be on duty on 23-8-1956. But as George had taken leave for that day he happened to be deputising for him. Pw. 2 came to the shed early in the morning and enquired about George. The accused told him that he was on leave. Then Pw. 2 said that he had to return a loan taken from George and asked the accused whether, if he (Pw. 2) gave the money to him, he would give it to George. The accused agreed to this, and Pw. 2 left the place. He returned in the evening and gave him Rs. 5. After he got the money from Pw. 2 the accused left the shed to supervise the loading of goods and, while he was near a cart, he heard someone calling him by name. He turned back and going round the cart went to the person who was calling him, i. e., Pw. 12. Pw. 12 asked him where was the money he received from Pw. 2 and he thereupon gave Pw. 12 the amount of Rs. 5 which Pw. 2 had given him as well as a further amount of Rs. 4 which he had with him and certain other articles. Pw. 4 asked him whether he had received the amount from Pw. 2 as a bribe and he told Pw. 4 that he had not received it as a bribe. After that they wrote some mahassars and left the place giving him back the articles other than the money and the lottery ticket.