JUDGMENT

This is an appeal by one Mohideen, who was a train movement inspector in the M. & S. M. Railway and had jurisdiction over all stations between Guntakal and Bezwada and Macherla against his conviction under s. 161 I. P. C. by the Sessions Judge, Guntur, for having received Rs. 30 as mamool or bribe from P. W. 7 the Station Master, Perecherla, for showing favour to him and not sending reports against him and bringing him into trouble and the sentence of six months rigorous imprisonment. He had been charged also with the offence of criminal misconduct in the discharge of his duty by habitually accepting or obtaining or attempting to obtain illegal gratifications like that from P. W. 1 Chelapathi Naidu, while he was station master at Bethamacherla for showing favour by not sending reports against him, and of bargaining to obtain a bribe of Rs. 200 from P. W. 3 for enabling him to transport green chillies illegally and actually securing a part payment of Rs. 50 out of that bribe, an offence punishable under s. 5 (2) of Central Act II of 1947. The learned Sessions Judge found that the evidence regarding the alleged offence under s. 5 (2) of Central Act II of 1947 was false or unreliable, and acquitted him of that offence while convicting him of the offence under s. 161 I. P. C. in appeal here. I have perused the entire records, and heard Mr. K. S. Jayarama Iyer, the learned counsel for the appellant and the learned Public Prosecutor contra. The facts are briefly these:

The appellant, as train movement inspector had the duty of checking train detentions, movement of luggage including unauthorised luggage, and delays in loading and unloading of foods, and sending reports against railway officials regarding all these and suspected acts of misconduct. The reports sent by him would be inquired into by the authorities concerned and suitable punishment awarded to station masters etc. The prosecution alleged that, taking advantage of the power given to him by virtue of his post, and underlining his power by sending reports against the station masters etc. and showing what he could do, the appellant was asking the station masters to pay bribes which he called mamools to him every month. He asked P. W. 7 to pay him a bribe or mamool of Rs. 15 a month, two or three months after he joined duty as station master at Peracherla in October 1948, in the same way as his predecessor was paying so that he might cover up all irregularities and derelictions of duty and not send reports against him and bring him to trouble. P. W. 7 said that he was a man with a large family and with onerous liabilities, and could not afford to pay the bribe demanded.

Then appellant used to pass Peracherla Station often, and every time he passed he used to ask P. W. 7 for the mamool bribe, P.W 7 went on refusing. After two or three months, finding that P. W. 7 could not be induced to pay anything like Rs. 15 per month the appellant climbed down and said that it would be enough if P. W. 7 would pay a bribe of Rs. 5 per month. Meanwhile, the appellant had also sent a report against P. W. 7 for sending ghee as luggage against the rules, and P.W 7 had been warned by the authorities for the irregularity. P. W. 7 therefore agreed to pay the lesser bribe demanded then. He said in court that he agreed unwillingly, and that he sent a petition about the appellant's demand for the bribe to the Anti-Corruption Branch, but the officer in charge of that branch stated that no such petition was received by him. Anyway, P.W 7 showed no eagerness to pay Rs. 5 every month, in spite of repeated demands by the appellant. Finally, in the middle of September, 1949 P. W. 7 took leave for a week in order to attend to his wife's delivery at Guntur. Then of course, appellant saw that no time should be lost, and asked that at least Rs. 30 that is, six months mamool at Rs. 5 per month, should be paid to him and P. W. 7 promised to pay it at Guntur on 15-9-1949 but got in touch with the Special Branch Police and the Magistrate (P. Ws. 11 and 9) and had a trap laid by them for the appellant.

P. W. 9, the Stationary Sub-Magistrate, and P.W 11 Sub Inspector, Special Police Establishment, got the numbers of the four currency notes representing Rs. 30 bribe noted and asked P. W. 7 to go and pay them to the appellant at the Guntur Railway Station platform. P. W. 7 went to Guntur Railway platform where the appellant was waiting, and paid the four currency notes for Rs. 30 as bribe to the appellant at about 10 a.m on 15-9-49. P. W. 8 the Asst. Parcel Clerk of Guntur Railway Station (and the brother-in-law of one Mangiah, said to be an enemy of the appellant owing to his strict enforcement of his duties) was also present on that occasion. The details of the occurrence were these: The appellant asked P. W. 7 whether he had brought the mamool of Rs. 30 and P. W. 7 replied that he had, and paid the money. P. W. 8 heard the question of the appellant and the reply of P. W. 7 and witnessed the payment of the money, and went and told P. W. 9 the magistrate about the payment. P. Ws. 9 to 11 then went to the railway station platform, and saw the apellant there. P. W. 9 asked him, in the presence of P. Ws. 10 and 11, “where is the bribe amount you received from Santhanam (P. W. 7)” and the appellant at once took out the four currency notes from his purse and handed them over. He also handed over another sum of Rs 52 and odd, with which we are not concerned in this case, as they must, for the purpose of this case, be held to be the money of the appellant, whatever be the source. The appellant told P. W. 9 shortly afterwards that the Rs. 30 given to him, in the shape of four currency notes by P. W. 7 represented the return of a loan be had given to P. W. 7 on 13-9.49 (as Ex. P. 7) but did not give the purpose of the loan or the names of the persons present then. In the committing magistrate's court he said that P. W. 7 had asked him to lend him that sum to meet the expenses :in connection with his wife's confinement and that he lent it on 13-9 49, but he did not say that D. Ws. 9 and 10 had seen him lend it. In the Sessions Court he examined D. Ws. 9 and 10 a chief guard and the manager of the book stall, to say that they saw the appellant give the loan of Rs. 30 to P. W. 7 on 13-9-49 at about 7 p.m on P. W. 7's asking him for a loan. The learned Sessions Judge was not at all impressed with the demeanour of these witnesses and rejected their testimony as untrustworthy and interested. He believed the prosecution evidence and held that the offence under s. 161 I. P. C. had been proved and convicted him and sentenced him, as stated above.

Mr. Jayarama Ayyar, for the appellant, raised several contentions. The first was that this was “a trap case” where corroboration by untainted evidence would be required under the law, and there was no such corroborative evidence, and, as such, the case must fail, in view of the ruling in Lakshminarayana Iyer v. Emperor 1917 M.W.N 831, and: the ruling in Brenner v. Peek 1947 2 All. E.R 572, where Lord Justice Goddard has observed that unless authorised by an Act of Parliament no trap can be laid by the police or the magistracy to find out whether a man will commit an offence, and that persons trapping him like that would be accomplices liable for punishment themselves. But I have held in several cases already that there are two kinds of traps, a legitimate trap, where the offence has already been born and is in its course, and an illegitimate trap, where the offence has not yet been born and a temptation is offered to see whether an offence would be committed, succumbing to it, or not. Thus where the bribe has already been demanded from a man, and the man goes out offering to bring the money but goes to the police and the magistrate and brings them to witness the payment, it will be a legitimate trap, wholly laudable and admirable and adopted in every civilized country with the least criticism by any honest man. But where a man has not demanded a bribe, he is only suspected to be in the habit of taking bribes, and he is tempted with a bribe just to see whether he would accept it or not and to trap him if he accepts it, it will be an illegitimate trap, and unless authorised by an Act of Parliament it will be an offence on the part of persons taking part in the trap who will all be “accomplices” whose evidence will have to be corroborrated by untainted evidence, to a smaller or larger extent as the case may be, before a conviction can be had, under a rule of court which has ripened almost into a rule of law. But in the case of legitimate trap, the officers taking part in the trap, like P. Ws. 9 to 11, and the witnesses to the trap, like P. W. 8, would in no sense be “accomplices”, and their evidence will not require under the law to be corroborrated as a condition precedent for conviction, though the usual rule of prudence will require the evidence to be scrutinised carefully and accepted as true before a conviction can be had. Therefore this contention fails.

The next contention as that under the ruling in Huntly v. Emperor 1944 M.W.N 430, every reasonable possibility of innocence must be excluded before the accused is convicted, and that, in this case, all reasonable possibility of innocence has not been excluded because the appellant has stated that Rs. 30 given to him by P. W. 7 on 15-9-49 was only the return of the loan given by him to P.W 7 on 13-9-49, as spoken to by D. Ws. 9 and 10, that P. W. 7's own statement to the Sub Magistrate in Ex. P. 5, a short time before the payment, contained a recital that he had not taken any loan from the appellant and that he owed nothing to him, and that was a tell-tale confirmation of the story of the appellant regarding the loan. It was urged vehemently that P. Ws. 7 and 8 had motives to perjure against the appellant and bring him into trouble as he was a strict officer and that they had also been induced by other railway officials, like Ramanna and Mangayya to perjure against the appellant and book him somehow, so that they might all be rid of the strict officer and his reports against them and their nefarious activities. It was also urged that the story of P. W. 7 was unbelievable because, if his story was true the mamool due by him would be Rs. 45 and not Rs. 30 at Rs. 5 per month, and the question put into the appellant's mouth by P. Ws. 7 and 8 was unnatural and improbable, and that the real question put by P. W. 9 to the appellant was merely whether he had received Rs. 30 from P. W. 7 and not whether he had received the bribe of Rs. 30 from P. W. 7 and that all these witnesses had conspired together to book this strict officer and gel rid of him.

I cannot agree. The learned Sessions Judge has carefully discussed the entire evidence, and, indeed he has acquitted the appellant of the other offence (comprising two alleged acts of bribery) because he held that the evidence regarding them was unreliable. He acted properly in this, for every accused is entitled to have every charge against him considered separately, and not mixed up with other charges. Under our law, the accused is entitled to be acquitted of every charge not proved, but because of such acquittal regarding some charges he cannot claim to be acquitted regarding a charge which has been fully proved. In fact, the witnesses who spoke to this offence under s. 161, I. P. C. of which the appellant has been convicted, are not the witnesses who spoke to the other offence. There is nothing in law preventing the learned Sessions Judge from believing the witnesses who spoke to this offence while not believing the witnesses who spoke to the other offences-. He believed the evidence of P. Ws. 7 to 11 about the Rs. 30 being a bribe, and disbelieved the evidence of D. Ws. 9 and 10 and the statement of the appellant, regarding the loan. It is also clear to me that the appellant had only cleverly and cunningly constructed a parallel (and false) story on the statement of P.W 7 in Ex. P-5 and that he had not taken any loan from the appellant and on the evidence of even prosecution witnesses that P. W. 7 was in need of money and was borrowing money from others and that his wife's delivery was admittedly taking place about the middle of September.

It was urged by Mr. Jayarama Ayyar that the learned Sessions Judge was wrong in his finding of fact against the loan and in favour of bribe, and in believing the statements of P. Ws. 7 and 8 regarding the appellant's asking P. W. 7 whether he had brought the mamool of Rs. 30 and the statement of P. Ws. 9 to 11 that P. W. 9 asked the appellant whether he had received the bribe from P. W. 7 and the appellant producing the currency notes without a word of protest of innocence. I cannot agree. The law regarding the findings of fact by the trial court is well settled by the Privy Council, Supreme Court and High Courts. The findings of fact by the trial court, which sees the witnesses, hears their evidence and observes their demeanour, should not be set aside by the appellate court which sees the evidence only in cold print, unless (1) they are manifestly wrong and there is no evidence at all on record to support them; (2) the trial court has overlooked and not adverted to clinching pieces of evidence running contrary to its findings; (3) the trial court has not scrutinised the evidence properly and has simply jumbled the evidence together and come to a conclusion which is a non-sequitur, and (4) where the appellate court allows additional evidence of a clinching nature, contrary to the findings of the trial court to be admitted in apppeal.

In Pearey Lal v. Nanak Chand 1948 3 Bom. L.R 16, P.C it has been observed by the Privy Council that while a finding that a witness is speaking the truth is of the greatest value when it is made by a judge who saw the witness, and observed his demeanour, a finding by a judge who never saw him is of very small value. In Rajanandini v. Aswini Kumar Chowdhuri I.L.R 1941 1 Cal. 457, it is rightly observed that the trial court's view as to which set of witnesses is to be believed is to be adopted unless there are weighty reasons showing the trial court's view to be clearly wrong. And in this case there is no point in Mr. Jayarama Ayyar's saying that the learned Sessions Judge erred in believing the evidence of P. Ws. 7 to 11 and in disbelieving the evidence of D. Ws. 9 and 10 and the statement of the accused. Even apart from the rule of law, even on the facts, I am prepared to agree with the learned Sessions Judge. The appellant never examined D. Ws. 9 and 10 in the Committing Magistrate's Court, and would have examined them had he relied on their evidence as true. He did not even say in his statement before the Committing Magistrate that D. Ws. 9 and 10 were present when he gave the loan of Rs. 30 to P. W. 7. The curious statement of P. W. 7 in Ex. P-5 taken by P. W. 9 “I have not taken any loan from him, and nothing is due to him” will not show the truth of the loan, as the learned Public Prosecutor rightly urged. It will only show that the magistrate before laying the trap wanted to satisfy himself that P. W. 7 was not returning any borrowed money to the appellant but that he was only giving him the bribe demanded, since, in several trap cases the defence has been that it was only a return of the loan. P. W. 9 swore that the statement in Ex. P-5 represented only the replies of P. W. 7 to his questions. There is also the sentence. “I am on good terms with Mr. Mohideen, and I am not giving this statement out of spite or inducement by the police and the railway officer” in Ex. P-5 which shows that P. W. 9 was in the habit of putting such questions in order to satisfy himself that private malice or private loan etc. were not being made excuses for his laying a trap for an officer. The learned Sessions Judge was not at all impressed with the demeanour of D. Ws. 9 and 10 or the evidence given by them. Such persons are only too likely to sympathise with railway officers like the appellant, who are in constant touch with them, when in trouble. Under the rules, the appellant could not give any loan to P. W. 7 nor is it likely that the loan if contracted by P. W. 7 for an urgent purpose on 13-9-49 would have been returned two days thereafter. Nor is it likely that a man who was given such a loan for meeting such an urgent necessity as his wife's confinement would be so ungrateful to his friend in need as to lay a trap for him and get him into trouble. It was asked by Mr. Jayarama Ayyar why Rs. 30 alone was demanded instead of Rs. 45 as bribe in September 1949, when Rs. 40 was due by then by the way of mamool. It is obvious that P.W 7 was not in a mood to pay anything, and was postponing the promised payment, and, so the appellant apparently wanted to recover what little he could get from such a promise-postponer. The evidence of P. Ws. 7 to 11 leaves no doubt in my mind that the appellant was waiting for the payment of the mamool of Rs. 30 at 10 a.m on 15-9-49 at the railway platform and was paid it by P. W. 7. A mamool of Rs. 15 a month had been refused in the first instance by P. W. 7 but only due to his inability as a man with a small income and heavy expenses. It was urged that P. W. 7 was perjuring because he had been reprimanded on a report made by the appellant, a strict officer but it is quite obvious that this very reprimand must have made P. W. 7 to agree to pay the modified mamool of Rs. 5 a month. Clever bribe takers use such levers and concessions alternatively and even cumulatively. It was urged that Mangayya and Ramanna and others must have persuaded P. Ws. 7 and 8 to perjure against the appellant. I do not agree. There is nothing to show that. Besides, there is the evidence of P. W. 9 to 11 who could not have been influenced by these persons or other enemies of the appellant and who had no motive to perjure against the appellant. There is also the mahazar, Ex. P-6 prepared immediately after the event which shows that P. W 9 asked the appellant to give him the sum of Rs. 30 paid by P. W. 7 to him as mamool and that the appellant took out his money purse containing the mamool of Rs. 30 and another amount of Rs. 52 and gave it to P. W. 9 in the presence of P. Ws. 10 and 11 without a word of explanation or protest. The loan story was invented only a short while aferwards. This evidence by conduct, confirming the demand of the mamool, is more eloquent than any oral corroborative evidence. The fact that P. W. 7 had made improper overtures sometime before this offence to the Assistant Station Master's wife, that the appellant had sent a report against him about sending ghee against the rules, as railway parcel, are all irrelevant for the purpose of this case, as there is the evidence of P. Ws. 8 to 11 also to corroborate testimony of P. W. 7 relating to the facts of this case.

It was urged that it was unlikely that P. W. 7 would have paid a bribe of Rs. 30 when he had taken leave and was going away from Perecherla station. But it must be remembered that this leave was only for a week, and he had to return to duty and join at the same station or at some other station within the jurisdiction of the appellant. Besides, it is only when a man leaves his place that people become apprehensive about the debts or payments due to them from him or promised by him. The fact that P. W. 7 said that he sent a report to the Anti-corruption branch about the appellant's demand for a bribe and the petition was not traced is also irrelevant for this case. Many a petition is lost now a days in transit many a petition also gets mixed up with innumerable other papers in heavy offices like the Anti-corruption department office, and never sees the light of day again. But even if P. W. 7 is uttering a lie about this, it will only be a collateral lie having nothing to do with the main offence involved in this case, and will be unimportant and immaterial and can be ignored in view of the corroborative evidence of P. Ws. 8 to 11.

It was lastly urged that there was no proof that the mamool demanded by the appellant was an illegal gratification or a bribe. I have already held in Varadadesikachariar in Re6 that modern law attaches little importance to terms like Mariada, Mamool etc, but will go into the core of the matter and see what the nature of the payment is, and that if it is illegal gratification or a bribe taken by an officer for doing a favour or abstaining from doing a disfavour it will come within the scope of S. 161, I. P. C. No doubt, some mamools, like Pongal, Deepavali Dasara and Christmas mamools, paid to peons as baksheesh may not come within the term “illegal gratification” or ‘bribe” as they are not paid for showing or for showing or forbearing to show favour or disfavour in the exercise of official functions. Mr. Jayarama Ayyar finaly conceded that if this mamool in the circumstances alleged was proved, it will be nothing but a bribe or illegal gratification falling within the scope of S. 161, I. P. C.

After a thorough scrutiny of the entire evidence. I am satisfied that the conviction of the appellant under S. 161, I. P. C. is amply borne out by the evidence on record and that it is correct, I accordingly confirm the conviction. It was urged by Mr. Jayarama Ayyar that the sentence was far too severe, taking all the circumstances into consideration, and especially the fact that the appellant had put in 28 years of service and that this was his first offence, and that he is sure to be dismissed from service, and that the amount involved is only Rs. 30 and that P. W. 7 had himself promised to pay the amount and had fixed it for payment at Guntur platform on 15-9-49 and then trapped the appellant, and that there is no need to send the appellant back to jail to become a hardened criminal and a problem to society, I agree. After hearing the learned Public Prosecutor on the point, I modify the sentence passed on the appellant into imprisonment till the rising of the court and a fine of Rs. 500 or, in default, further rigorous imsonment for three months. Time given till 3 p.m on 25-10-51 for the payment of the fine into the Sessions Court, Guntur, as prayed for.

N.T.R