GPPESHWAR MANDAL Vs. EMPEROR

JUDGEMENT

(1.) THE applicant, Gopeshwar Mandal was convicted and sentenced to undergo 6 months' rigorous imprisonment and to pay a fine of Rs. 500 Under Section 161, Penal Code by the Sub-Divisional Magistrate, Gondia, and his appeal was dismissed by the Additional Sessions Judge, Bhandara. He has now come up in revision.

(2.) THE prosecution case was briefly stated as follows. The applicant was the General Clerk in the Watch and Ward Departmant of the Bengal Nagpur Railway at Gondia, where he worked under Raghunathsingh (P.W. 2), Circle Inspector. Appointments as B class watchmen were made by the latter and when Maniklal (P.W. 5) approached the applicant for a post of that kind he was told that he would have to pay him Rs. 60 for it. Maniklal then went away and met Mr. S.N. Ghosh (P.W. 3), Railway Section Officer, who produced him before R. D. Verma (P.W. 1), Sub-Inspector, on 27-6-1945. Maniklal told him of the applicant's demand and he was brought before N.R. Lakhkar (P.W. 4), First Class Magistrate, two days later. Maniklal also apprised Mr. Lakhkar of the applicant's demand and a trap was arranged to catch the applicant. Mr. Lakhkar noted down the numbers of the six 10 rupee notes produced by Maniklal and returned them. Maniklal and others then went away but returned again at about 6 P.M., when Mr. Lakhtar re-verified the numbers of the notes and wrapped them in a piece of newspaper which he initialled. Ram-singh (P.W. 6) and others then set out in the direction of the applicant's house. Maniklal Ramsingh, in accordance with the orders given to them, went ahead and entered the applicant's compound while the others waited in the vicinity. Maniklal and Ramsingh emerged from the compound shortly afterwards and Mr. Lakhkar learned from Ramsingh that the applicant had asked them to wait as there was doctor at his house. About a quarter of an hour later, the doctor and another person left, the house on bicycles. Maniklal and Ramsingh then entered the applicant's compound and there was a talk between him and them at the gate. When the applicant asked Maniklal if he had brought the money, Maniklal told him that he had and handed him the packet containing the notes.

(3.) THE applicant in examination denied that he had demanded or received any gratification from Maniklal, although he admitted that the latter had interviewed him on the evening in question. He asserted that the six 10 rupee notes did not belong to him and refused to admit that they bad been seized from his house. In his written statement which was filed 3 months later, his version was that while he was talking to Dr. Bharat (D.W. 1) and Dr. Bajpai (D.W. 2) on the verandah of his house, his daughter brought in a cover which, according to her, had been delivered to her by somebody. He asked her to keep it on the table and she did so. This was the cover which was subsequently seized, but he had no knowledge of its contents prior to the seizure. He attributed his incrimination to Mr. S.N. Ghosh who was prompted thereto by Mr. P.K. Roy, Raghunathsingh's assistant, who was inimical to him. The two Courts below have accepted the prosecution case and rejected the defence case; and I am in entire agreement with those findings. The prosecution irrefragably established the applicant's guilt and I have no doubt whatever of the fact that the position taken by him in defence was an afterthought. When Mr. N.B. Lakhkar, First Class Magistrate and his companions rushed into the applicant's compound, disclosed their identity and asked him to produce the packet given to him by Maniklal, he disclaimed the receipt of anything and the packet in question was subsequently found on a table in a room of his house. That was on 29-6-1945 and when the applicant was examined on 10-1-1946 he specifically stated that the six 10 rupee notes in question did not belong to him, that he had not received them from Maniklal and that he could not say whether they had been seized from the table. 6. On 30-4-1946, however, he admitted that the packet which had been seized from his room was the packet in the case and his explanation was that his daughter had brought it to him and that when she had told him that somebody gave it to her he told her to place it on the table. It is immediately obvious that if there had been any truth in that belated version, it would have appeared in his examination and even before that it would have been disclosed when Mr. Lakhkar and his companions raided his house. 7. The applicant was not an ordinary rustic or a young man but was, on the other hand, General Clerk in the Watch and Ward Department of the Bengal Nagpur Railway at Gondia and 45 years of age. He was, therefore, a man who, if he had obtained the Rs. 60 by licit methods, would, when interrogated concerning them, not only have admitted it but displayed unbounded indignation at having been suspected. The suggestion that the notes had been planted on him without his knowledge because of the antagonism of Mr. P.K. Roy was palpably devoid of any substance. In the evidence the only thing which emanated concerning their enmity was that there had been a quarrel between them regarding a water tap, and it is impossible to suppose that because of a petty dispute of that kind the applicant would have been involved in a big and planned case of this kind. 8. Moreover, Mr. P.K Roy was not stationed at Gondia when the offence took place and it was obvious that a person of Mr. Lakhkar's standing would not have inculpated the applicant without justification. It was, on the other hand, clear beyond doubt that Maniklal had previously approached the applicant and that the latter had told him that he would have to pay RS. 60 to secure appointment to the post of watchman. It follows that the evidence of the two doctors who were examined in the applicant's behalf was so far as it related to the version put forward by him in his written statement untrue and I am clear that they so deposed because he and they are on friendly terms. 9. The contention that the conviction Under Section 161, Penal Code was wrong as the applicant had no authority to appoint a person to the post of watchman cannot prevail. In Emperor v. Ajodhia it was held that to constitute an offence under that section read with Section 116 it was sufficient that there was an offer of a bribe to a public servant, in the belief that he had an opportunity or power in the exercise of his official functions to show the offeror a desired favour, although the public servant had in reality no such power. In Nazamuddin v. Queen-Empress (01) 28 Cal. 344 a peon in the Salt Department who had taken money in respect of the issue of saltpetre licences, was adjudged liable under Section 161 on the ground that the object of the illegal gratification was the rendering of a service to the persons who paid it. 10. In Emperor v. Bhagwandas Kanji (07) 31 Bom. 335 a Division Bench made the fallowing observations: