Judgment :- 1. The accused in Calendar Case No.1/1955 on the file of the Special Judge's Court at Coimbatore is the appellant. The Principal Assistant Sessions Judge at Coimbatore was appointed as the Special Judge for trying cases under the Prevention of Corruption Act (Act II of 1947) and it was in that capacity as Special judge that the case against the accused was tried. The accused is an employee under the Southern Railway and was functioning as the Assistant Goods Clerk attached to the Kasargode railway station during the relevant period i. e., between 25-8-1954 and 13-10-1954. On getting information that he was in the habit of receiving illegal gratification from persons who had to consign goods from the Kasargode railway station to other places, Pw. 15 the Special Police Sub-Inspector attached to the Special Police Establishment, Madras, proceeded to investigate into the matter after obtaining the necessary sanction and filed a charge-sheet against the accused. When the case came on for trial, the Special Judge framed a charge against the accused under S.5 (1) (a) read with S.5 (2) of the Prevention of Corruption Act (Act II of 1947). The following nine instances of the accused having received illegal gratification were mentioned in the charge: (1) That the accused demanded and received from Ambu (examined as Pw. 1) a sum of Rs. 20/- at 8.40 p. m. on 9-10-1954, for booking 52 bundles of dried fish to Arkonam,17 bundles of dried fish to Tirur and 51 bundles to Villupuram; (2) That he demanded and received a sum of Rs. 15/- on 13-10-1954 from T. M.Abdulla (examined as Pw. 5), a partner or Pw. 1, for expediting the despatch of the consignments mentioned in item 1; (3) That he demanded and received a sum of Rs. 1-4-0 on 25-8-1954 from T.M. Abdulla (Pw. 5) for booking 5 bundles of fish to Olavakkot; (4) That he demanded and received a sum of Rs. 6-12-0 on 30-8-1954 from T.M.Abdulla for booking 27 bundles of dried fish to Tuticorin; (5) That he demanded and received a sum of Rs. 5-12-0 on 28-9-1954 from T.M. Abdulla for booking 23 bundles of dried fish to Tirur; (6) That he demanded and received a sum of Rs. 8-4-0 from T. M. Abdulla on 30-9-1954 for booking 32 bundles of dried fish to Tirur; (7) That he demanded and received a sum of Rs. 5-12-0 on 28-9-1954 from T.M. Abdulla for booking 23 bundles of dried fish to Tirur; (6) That he demanded and received a sum of Rs. 8-4-0 from T. M. Abdulla on 30-9-1954 for booking 32 bundles of dried fish to Tirur; (7) That he demanded and received a sum of Rs. 5/- from T. M. Abdulla on 29-9-1954 for booking 18 bundles of dried fish to Olavakkot and 2 bundles of dried fish to Tuticorin; (8) That he demanded and received a sum of Rs. 0-8-0 on 25-8-1954 from T.M. Abdulla (Pw. 6) for booking 2 bundles of dried fish to Alwaye; and (9) That he demanded and received a sum of Rs. 2-8 0 on 4-10-1954 from P.M. Abdulla for booking 10 bundles of dried fish to Kozhikode. The accused pleaded not guilty to every one of these charges.] 2. After a due consideration of the evidence adduced by the prosecution, the Special Judge found that the charges under counts 2 to 5 and 7 to 9 were not proved by any satisfactory and convincing evidence but that there was convincing and acceptable evidence in respect of the charges under counts 1 and 6. To sustain a charge under S.5 (1) (a) read with S.5 (2) of the Prevention of Corruption Act, at least 3 instances of receipt of illegal gratification had to be proved against the accused. Since two such instances alone were found to be proved in this case, the Special Judge held that the accused could not be convicted under the aforesaid sections, but could only be convicted for the lesser offence punishable under S.161 of the Indian Penal Code. Accordingly the accused was convicted under S.161 of the Penal Code and sentenced to undergo simple imprisonment for a period of three months and to pay a fine of Rs. 50/-. The appeal is against such conviction and sentence. 3. Apart from certain legal points urged against the sustainability of the conviction entered against the accused, it is also argued on behalf of the appellant that the trial judge erred in holding that there is satisfactory and convincing evidence in proof of charges under counts 1 and 6. The question of reliability of such evidence may be considered at the outset before adverting to the legal points raised on behalf of the appellant. 4. The question of reliability of such evidence may be considered at the outset before adverting to the legal points raised on behalf of the appellant. 4. For substantiating the charge under count 6, the prosecution has relied upon the testimony of Pws.1 and 5 supported by the documentary evidence furnished by Exts. P-7 (h) and P-28, P-28 (a). The charge is that on 30-9-1954 the accused in his capacity as Asst. Goods Clerk demanded and received a sum of Rs. 8-4-0 as illegal gratification from Pw. 5 in connection with the despatch of 33 bundles of dried fish from Kasargode railway station to Tirur railway station. The payment is stated to have been made by Pw. 5 in the presence of Pw. 1. Even though Pw.5 has stated that on several other occasions also he had made similar payments to the accused, he was not able to specify the dates of such payments. No explanation is forthcoming as to why he should have particularly remembered the date of the alleged payment of Rs. 8-4-0. It may be stated in this connection that the evidence given by this witness in support of the alleged payments which were the basis of the charges under counts 2 to 5 and 7, has been discarded by the learned judge as unreliable and unacceptable. It has been brought out in the examination of Pw 5 that in the course of his dealings with the accused there were occasions when they had to exchange hot words. This is one of the reasons stated by the learned judge in support of his conclusion that the evidence of this witness has to be viewed with great suspicion. Ext. P-7 is put forward as the account maintained by Pw. 5. But it is admitted by him that he had practically nothing to do with the preparation of the accounts contained in this book and that all the entries in it were made by his partner Pw. 1. To the same effect is the evidence given by Pw.1 himself. Ext. P-7 (h) is the entry regarding the payment of Rs. 8-4-0 on 30-9-1954. The entry merely stated that this amount was paid as mamool to the goods clerk in connection with the despatch of 33 bundles of dried fish to Tirur. The word 'mamool' is the popular expression denoting payment of illegal gratification. The entry Ext. Ext. P-7 (h) is the entry regarding the payment of Rs. 8-4-0 on 30-9-1954. The entry merely stated that this amount was paid as mamool to the goods clerk in connection with the despatch of 33 bundles of dried fish to Tirur. The word 'mamool' is the popular expression denoting payment of illegal gratification. The entry Ext. P-7 (h) does not disclose the identity of the particular goods clerk to whom the payment was made or even the identity of the person who made the payment. Thus the entry by itself does not very much advance the version given by Pww.1 and 5. The irresistable impression formed by a perusal of the book Ext. P-7 is that it is not an account book written up from day to day in the regular course of business. On the other hand, it appears that the book was written up at one stretch. The learned judge discarded this book as having very little evidentiary value while dealing with charges under counts 2 to 5 and 7. Such a record cannot be accepted as a reliable document for any other purpose, particularly as an item of corroborative evidence in support of the charge under count 6. The same remark holds good in respect of the evidence of Pw. 5. Then there is the evidence of Pw.1 who says that he was present at the railway station when Pw. 5 paid Rs. 8-4-0 as mamool to the accused on 30-9-1954. He has further stated that the accused himself prepared the railway receipt corresponding to the forwarding note Ext. P-28 and passed it on to Pw. 5. But no such railway receipt has been produced and proved in this case. Pw.l is not in a position to state who prepared the forwarding note Ext. P-28 or Ext. P-28 (a) the record of goods forwarded as per Ext. P-28. These two records do not show that the accused had anything to do with them. His plea is that he was not on duty on 30-9-1954. Ext. P-28 (a) and Ext. D-2 are definitely in favour of this plea of the accused. Ext. P-28 (a) is seen to be signed by the Station Master and not by the accused. Ext. D-2 muster roll shows that the accused was not on duty on 30-9-1954. His plea is that he was not on duty on 30-9-1954. Ext. P-28 (a) and Ext. D-2 are definitely in favour of this plea of the accused. Ext. P-28 (a) is seen to be signed by the Station Master and not by the accused. Ext. D-2 muster roll shows that the accused was not on duty on 30-9-1954. Such being the state of evidence on record, it is difficult to believe that on 30-9-1954 the accused received Rs. 8-4-0 as illegal gratification from Pw 5 as stated by Pww.1 and 5. There is no independent evidence to corroborate the evidence of these partisan witnesses. The statement of Pw.1 in his complaint petition Ext. P-1 presented to the Special Police Officer, Pw. 15, is not entitled to any greater weight than the sworn testimony given by Pw. 1. Thus, on a consideration of the evidence and all the circumstances relating to the charge under count 6, we have come to the conclusion that there is no satisfactory and convincing evidence in proof of this particular charge. It follows therefore that the Special Judge's finding in respect of this charge has to be" reversed and the accused acquitted of the charge under this count. 5. Then there remains only the charge under count 1 relating to the demand and receipt of Rs. 20/- from Pw.1 on 9-10-1954 by way of illegal gratification for the despatch of 120 bundles of dried fish. The evidence in support of this charge consists of the testimony of Pww.1 to 4,12 and 15 and also the documents marked as Exts. P-1 to P-5 and the currency notes marked as M. Os.1 to 4. P. Ww.1 to 3 have stated that there was a long-standing complaint that speedy despatch of goods through the Kasargode railway station was possible only on payment of illegal" gratification known as mamool to the goods clerk and to the other railway employees attached to that station. Pw. 15 who is a Sub-Inspector attached to the Special Police Establishment at Madras got information of such a complaint and he proceeded to Kasargode to make secret investigation into that matter. On knowing of his presence at the spot, Pw.1 approached him on 7-10-1954 and presented the complaint petition Ext. P-1. Pw. 15 who is a Sub-Inspector attached to the Special Police Establishment at Madras got information of such a complaint and he proceeded to Kasargode to make secret investigation into that matter. On knowing of his presence at the spot, Pw.1 approached him on 7-10-1954 and presented the complaint petition Ext. P-1. This witness is a member of the fisherman community at Kasargode and at the relevant period he was also the President of the local Araya Samajom. He had taken P. Ww. 2 and 5 as his partners for trading in fish. Their main business was sale of raw fish as well as dried fish at far off places. In furtherance of such a trade they had to despatch baskets of fish from Kasergode railway station to other centres. The complaint of Pw.1 in the petition Ext. P-1 was that the railway employees were insisting on payment of illegal gratification for the prompt despatch of these consignments and himself and the other fish dealers were compelled to pay the illegal gratification so as to avoid the fish becoming decayed on account of delay in the despatch of the consignments. Ext. P-1 pointedly referred to the accused who was at that time the goods clerk at Kasergode railway station as the person insisting on payment of the mamool or illegal gratification. On the basis of the complaint petition Ext. P-1, the Special Police Officer Pw. 15 registered a case against the accused and proceeded to investigate into the allegations against him after obtaining the necessary sanction as required by sub-section (4) of S.5 of the Prevention of Corruption Act (Act II of 1947). Ext. P-35 is the sanction thus issued on 7-10-1954 by the Additional District Magistrate at South Kanara. The case was registered on 8-10-1954 and Ext. P-36 is the First Information Report submitted by the Special Police Officer. Ext. P-22 is the Order issued by the General Manager of the Southern Railway sanctioning the prosecution of the accused. On the morning of 9-10-1954, P. Ww.1 and 2 met Pw. 15 at the Durga Bhawan Hotel where the latter was staying and told him that they were sending 120 bundles of fish to the Kasergode railway station and that if the Inspector would go there, it would be possible for him to get direct knowledge as to how the goods clerk was demanding and receiving mamool. Pw. 15 at the Durga Bhawan Hotel where the latter was staying and told him that they were sending 120 bundles of fish to the Kasergode railway station and that if the Inspector would go there, it would be possible for him to get direct knowledge as to how the goods clerk was demanding and receiving mamool. Pw. 15 made up his mind to make use of this opportunity and to lay a trap to find out if the allegations against the accused were true or not. He asked Pw.1 to go to the railway station and to see if the accused was insisting on the payment of the mamool. Accordingly, Pws.1 and 2 went to the railway station and got the consignments weighed and the forwarding notes prepared. Out of the total of 120 bundles which they had taken to the station, 51 bundles had to be sent to Villupuram,17 bundles had to be sent to Tirur and the remaining 52 bundles had to he sent to Arkonam. The forwarding notes relating to these 3 different consignments are Exts.P-2, P-3 and P-4 and they are all dated 9-10-1954. The consignor under Exts. P-2 and P-3 is Pw.1 while his partner, Pw. 2, is the consignor under Ext P-4. After getting these forwarding notes prepared, Pws.1 and 2 requested the accused to give the railway receipts. The accused replied that they would have to pay Rs. 20/- as mamool and on payment of the amount the railway receipts would be issued. Pw.1 said that they had not brought the necessary amount with them and that they would go home and bring the money. All these facts are clearly sworn to by both Pws.1 and 2. Both of them proceeded from the railway station to the Durga Bhawan Hotel and told Pw. 15 as to what had transpired between themselves and the accused. Pw. 15 directed them to meet him again with the sum of Rs. 20 which they were to pay as mamool to the accused. Accordingly, Pw.1 again went to Pw. 15 at about 7-30 P. M. on the same day with a sum of Rs. 20/- in four currency notes each of Rs. 5 denomination. Pw. 15 prepared the mahazar Ext. P-5 regarding these notes. The numbers of the four currency notes were noted in the mahazar and then the notes were returned to Pw. 1. Pw. 15 at about 7-30 P. M. on the same day with a sum of Rs. 20/- in four currency notes each of Rs. 5 denomination. Pw. 15 prepared the mahazar Ext. P-5 regarding these notes. The numbers of the four currency notes were noted in the mahazar and then the notes were returned to Pw. 1. Pw. 15 examined Pws.1 and 2 in the presence of two attesting witnesses and it was found that excepting the four currency notes already mentioned, there was no money with Pws.1 and 2. The notes were returned to Pw.1 with the specific direction that on going back to the railway station, he should pay the amount to the accused only in case he made a demand of the same as mamool. Pw. 15 also stated that he would follow them to the railway station and would wait outside. Pw. 2 was also instructed that in case the mamool was demanded and received by the accused, Pw. 2 on coming out from the room of the accused, should tie his towel round his head as a signal to the Police Inspector that the mamool had already been demanded and received. All these facts are stated in the mahazar Ext. P-5 which is attested by Pw. 1, Pw. 4 and another person by name Gopalan and also by Pw. 15. The truth and the correctness of the mahazar have been testified to by Pww.1, 4 and 15. Of these persons, Pw. 4 is an independent witness. From the Durga Bhawan Hotel, Pww.1 and 2 went to the railway station. Pw. 15 directed Pw. 4 also to the railway station with instructions to watch the transaction that may take place between the accused and Pw. 1. Subsequently Pw. 15 himself proceeded to the station and on the way he met Pw. 3 and solicited his services as a witness to what was expected to take place at the railway station. Pw. 3 agreed to render such service and has accompanied Pw. 15 to the railway station whether Pw. 15 made Pw.3 understand the identity of Pww.1 and 2 and the accused. Pw. 3 joined company with P. Ww.1 and 2. At 8.15 P. M. P. Ws.1 and 2 followed by Pw. 3 entered the station room wherein the accused was sitting. 3 agreed to render such service and has accompanied Pw. 15 to the railway station whether Pw. 15 made Pw.3 understand the identity of Pww.1 and 2 and the accused. Pw. 3 joined company with P. Ww.1 and 2. At 8.15 P. M. P. Ws.1 and 2 followed by Pw. 3 entered the station room wherein the accused was sitting. Pw.1 demanded the railway receipt and then the accused replied that he was busy with some other work and that Pw.1 may go to him 20 minutes later. Accordingly, P. Ws.1 to 3 came out and waited there for some time and again went into the room at about 8.40 P. M. When Pw.1 asked for the railway receipt, the accused demanded Rs. 20/- by way of mamool. On such a demand being made, Pw.1 handed over to the accused the four currency notes of Rs.5 denomination already referred to. The accused opened the left hand drawer of his table and placed the currency notes inside it and closed the drawer and then handed over to Pw.1 the railway receipts corresponding to the forwarding notes Exts. P-2, P-3 and P-4. Exts. P-2 (a), P-3 (a) and P-4 (a) are the railway receipts which Pw. 1 obtained in this manner from the accused. Thereafter the accused spent a couple of minutes in conversing with P. Ww.1 and 2 as to how their business was thriving and whether they had any consignments to be despatched next day. Pw.1 replied that no goods were ready to be sent on the next day. After this conversation P. Ww.1 to 3 came out from the room and Pw. 2 tied his towel round his head. Pw. 15 who was waiting there, noticed this signal and immediately he got into the room along with P. Ww.1 to 3. Pw. 12 is the Burmah-shell Agent at Kasergode and he had gone to the railway station on the evening of 9-10-1954 in connection with his own business. At the railway platform he met Pw. 15 and in the course of their conversation Pw. 15 had requested him to be present with him in the accused's room for a short while. As per this request Pw. 12 also went into the room when Pw. 15 entered the room. After getting into that room, Pw. At the railway platform he met Pw. 15 and in the course of their conversation Pw. 15 had requested him to be present with him in the accused's room for a short while. As per this request Pw. 12 also went into the room when Pw. 15 entered the room. After getting into that room, Pw. 15 enquired of Pw.1 as to the individual to whom he had given the sum of Rs. 20/- Pw.1 pointed out the accused and said that the amount was paid to him. Pw. 15 disclosed his identity to the accused by showing his identity card and photo and then asked the accused to produce the sum of Rs. 20/- which he had received from Pw. 1. The accused was thoroughly perplexed and for a while he was not able to speak out anything beyond repeating the word 'Sir' several times. He appeared to be anxious to escape from the place. But Pw. 15 persisted in his demand and finally the accused had to yield. He opened the left hand drawer of his table and took out the four currency notes and handed them over to Pw. 15. In the presence of all who were assembled in that room. Pw. 15 compared the numbers of these notes with the numbers which he had already noted in the mahazar Ext. P-5 prepared at the Durga Bhawan Hotel in connection with the currency notes which Pw.1 was taking with him when he proceeded to the railway station to meet the accused. The numbers noted in Ext. P-5 agreed with the numbers of the note's which the accused took out from the left-hand drawer of his table and handed over to Pw. 15. Such a comparison was made at the spot by P. Ww. 3 and 12 also and they were also satisfied that the numbers noted in Ext. P-5 tallied with the numbers of the currency notes handed over to Pw. 15 by the accused. Thus it was proved beyond the possibility of any doubt that the currency notes which Pw. 1 had with him when he proceeded from the Durga Bhawan Hotel to the railway station were found in the left-hand drawer of the table of the accused wherefrom he took them out and handed them over to Pw.15. 15 by the accused. Thus it was proved beyond the possibility of any doubt that the currency notes which Pw. 1 had with him when he proceeded from the Durga Bhawan Hotel to the railway station were found in the left-hand drawer of the table of the accused wherefrom he took them out and handed them over to Pw.15. Regarding the circumstances under which these notes were thus recovered from the custody of the accused, the mahazar Ext. P-9 was prepared by Pw. 15 at the spot. The mahazar is attested by P. Ww. 3 and 12 who have deposed to its correctness. Pw. 15 who prepared the mahazar, has also sworn to its correctness. The evidence of P. Ww.1 and 2 is also in support of the version stated in this mahazar. The following are the numbers noted in the mahazhar Ext. P-5 as the numbers found on the four currency notes that were being taken by Pw.1 when he went to the accused, on the evening of 9-10-1954:- (1) E/55 944957, (2) B/17 227683, (3) A/9 001936 and (4) C/64 856148. In Ext. P-9 also the very same numbers are noted as the numbers of the currency notes handed over by the accused to Pw. 15. After recovery of the currency notes from the accused, the Police Officer made a search of the right hand drawer of the accused's table and recovered a sum of Rs. 35-1-3. Ext P-10 is the mahazar relating to the recovery of this amount. The recovery of this amount has no real bearing on the question for decision in this case and hence we do not propose to examine the question as to how the accused happened to be in possession of the aforesaid sum of Rs. 35-1-3. Ext. P-11 is the mahazar prepared by Pw. 15 at the same spot and it gives a description of all that transpired from the time Pw. 2 gave the signal by tying the towel around his head up to the time of the accused handing over the currency notes to Pw. 15. This mahazar is also attested by Pww. 3 and 12. Before leaving the railway station, Pw. 15 got the station diary and made an entry in, it as to how he happened to enter the accused's room along with the other witnesses and recovered from the accused four currency notes of Rs. 15. This mahazar is also attested by Pww. 3 and 12. Before leaving the railway station, Pw. 15 got the station diary and made an entry in, it as to how he happened to enter the accused's room along with the other witnesses and recovered from the accused four currency notes of Rs. 5 denomination which he had received as illegal gratification from Pw. 1 in connection with the booking of 120 bundles of dried fish. The numbers of these notes were also noted in that entry. Ext. D-4 is the station Diary and the entry made by Pw. 15 is contained at page 391 of that diary. 6. The facts already narrated have been clearly sworn to by Pww.1 to 4,12 and 15. Of these witnesses, Pw. 4 is one who even according to himself had not gone into the room of the accused. According to this witness he was standing on the back side of the room and from there he was able to peep into the room through a window and thus see all that transpired inside the room. Pww. 9 and 13 were railway employees attached to the Kasergode station and both of them have stated that a person looking through the crevice of the window on the back side of that room will not be able to see the accused's table or anything taking place across that table. There is no reliable evidence in this case to show the exact position at which the accused was seated in that room and of the position occupied by the table in front of him and also of the -situation of the crevice through which Pw. 4 is stated to have been peeping into that room. In the absence of any such evidence, it is difficult to know whether Pw. 4 could possibly have seen all that was taking place inside that room. In such a situation, it will not be safe to place reliance on the evidence of Pw. 4 so for as it relates to the transactions that took place in that room. Even after discarding his evidence relating to this matter, there remains the evidence of Pww.1 to 3,12 and 15. Nothing has been brought out in the cross-examination of these witnesses to throw doubt on their veracity. 4 so for as it relates to the transactions that took place in that room. Even after discarding his evidence relating to this matter, there remains the evidence of Pww.1 to 3,12 and 15. Nothing has been brought out in the cross-examination of these witnesses to throw doubt on their veracity. The utmost that could be said about Pww.1 and 2 is that they are partners in the fish trade and as such they are equally interested in the advancement of that trade. But for that reason, it cannot be said that they have been parties to a false case concocted against the accused. No doubt, they had a legitimate grievance that the accused was insisting on payment of illegal gratification as an inducement for the prompt despatch of their consignments of fish to outside stations. They did not make a secret of that grievance but had boldly complained of the same to the authorities concerned. Ext. P-1 is such a complaint petition presented before Pw. 15. In the investigation that followed, these witnesses rendered the necessary help by co-operating with Pw. 15 in trapping the accused. So for as the part played by them in this matter is concerned, there is the evidence of the two independent witnesses, Pww. 3 and 12, to corroborate the evidence of Pww.1 and 2, in all material particulars. As for the preparation of the mahazar Ext. P. 5 at the Durga Bhavan Hotel where Pw. 15 was staying, there is the independent evidence of Pw. 4 to corroborate the evidence of Pww. 1, 2 and 15. Pw. 4 had been to that hotel to take coffee and there is nothing strange or improbable in his being called in by Pw. 15 to attest the mahazar Ext. P-5. Pww. 3 and 12 are respectable witnesses. Pw. 3 is the Secretary of the Fishermen's Co-operative Society at Kasergode and also the Vice-President of the Co-operative Society at South Kanara. It was while he was returning home from the railway station that Pw. 15 met him on the way and requested him to go with him to the railway station to witness what was going to take place at the railway station in connection with the transaction between Pw.1 and the accused. The mere fact that there was no previous acquaintance between Pww. 15 met him on the way and requested him to go with him to the railway station to witness what was going to take place at the railway station in connection with the transaction between Pw.1 and the accused. The mere fact that there was no previous acquaintance between Pww. 3 and 15 cannot by itself be a reason to doubt the truth of the version as to how Pw. 15 happened to request the services of Pw. 3. A Special Police Officer like Pw. 15 had to solicit the services of persons who might appear to him to be respectable and reliable. As for Pw. 12 he was met at the railway station platform itself by Pw. 15. Here again, there is nothing improbable or unnatural in Pw. 12 having agreed to the request of Pw. 15 to accompany him to the accused's room and to witness the result of the trap that had already been laid. On a careful consideration of the evidence of Pww.1 to 3,12 and 15, we agree with the lower court in holding that the version spoken to by them can be accepted as true and correct. The plea put forward by the accused is such that it only strengthens the conclusion that the truth is as stated by the aforesaid witnesses. In view of the evidence relating to the recovery of the currency notes M. Os.1 to 4, as per the Mahazar Exts. P. 9 and P. 11, it could not be denied that those notes were recovered Irom the accused's table at about 8-45 p. m. on 9-10-1954. But the attempt of the accused had been to make out that the currency notes were not in his custody and were not recovered from the drawer of his table but had been thrust beneath the papers on his table by Pww.1 and 2 without his knowledge. At the same time, the suggestion put forward in his plea is that Pww.1 and 2 were not known to him at all. His version is that sometime before Pw.15 came to his room, two other persons came to his room and stood near his table and that he did not pay any attention to them. At the same time, the suggestion put forward in his plea is that Pww.1 and 2 were not known to him at all. His version is that sometime before Pw.15 came to his room, two other persons came to his room and stood near his table and that he did not pay any attention to them. After some time he went out of the room to spit and immediately after his return Pw.15 also entered the room and recovered the currency notes from underneath the papers on the table. Such is the version given by the accused in the report Ext. D-6 sent by him to the D. T. S. on 10-10-1954. On the same day S. M. also sent another report Ext. D- to the D. T. S. and the version contained in that report also is similar to the version of the accused in Ext. D-6. The definite suggestion is that the notes were thrust under these papers by Pww.1 and 2 just when he had gone out of the room. This suggestion was put forward to Pww.1 to 3 in their cross-examination and all of them have emphatically repudiated the suggestion and have stated that the currency notes were taken by the accused himself from the left-hand drawer of his table and handed over to Pw.15. To the same is the evidence given by Pww.12 and 15 also. The accused's version that Pww.1 and 2 were unknown to him cannot also be believed to be true. They had been to him during the early hours of the day in connection with the despatch of 120 bundles of dried fish. The forwarding notes Exts. P-2, P-3 and P-4 were also prepared at that stage. The accused has also initialled the railway receipts Exts. P-2 (a), P-3 (a) and P-4 (a This fact is sworn to by the Station Master, examined as Pw.13. Apart from all these aspects, it is too much to believe that the accused would have permitted two unknown persons to enter into his room and to take their stand near his table and to remain there for some time according to their sweet will and pleasure. The story that he went out of the room leaving them in that position and that they stealthily placed the currency notes beneath the papers on the table, is also highly unnatural and improbable and cannot be believed. The story that he went out of the room leaving them in that position and that they stealthily placed the currency notes beneath the papers on the table, is also highly unnatural and improbable and cannot be believed. The accused's attempt to give such an artificial turn to the recovery of the currency notes from him by Pw.15, only betrays his guilty conscience and his desperate attempt to invent some story which might fit in with his pretended innocence. The story thus evolved by the accused out of his own imagination has only to be discarded as baseless and untrue in the face of the direct and convincing evidence given by Pww.1 to 3,12 & 15, supported by the mahazars Ext. P-5, P-9 and P-11 and the entry in the station diary Ext. D-4. It may also be mentioned here that an attempt is seen to have been made by the railway employees at Kasergode to throw some suspicion on the entry made at page 391 of Ext. D-4 by Pw.15 immediately after recovery of the currency notes from the accused. This is evident from the letter Ext. D-5 sent to the D.T.S. on 10-10-1954 by Pw.13 the Station Master. Along with that letter the extract from the entry in Ext. D-4 was also forwarded. The letter contains a definite allegation that on the morning of 10-10-1954, Pw.15 had come to the railway station and had taken the station diary to the Upper Class Waiting room and had made certain corrections in the entry which he had made on the previous evening. The letter Ext. D-5 itself states that Pw.13 has no direct knowledge about the imputations and that such a version was given to him by Krishnan Unni, another Station Master, who was on duty at the relevant time. This Krishnan Unni is not a witness in this case. The evidence of Pw.13 does not prove that the corrections in the entry in Ext. D-4 were made on the morning of 10-10-1954 as suggested in the letter Ext. D-5. As against the absence of such evidence, there is the positive evidence of Pw.15 himself that the corrections were made by him on the 9th itself immediately after he had made the entry. The appearance of the corrections is clearly in support of this version being true. It may also be stated that the corrections are of no material importance. As against the absence of such evidence, there is the positive evidence of Pw.15 himself that the corrections were made by him on the 9th itself immediately after he had made the entry. The appearance of the corrections is clearly in support of this version being true. It may also be stated that the corrections are of no material importance. The first correction relates to the reference to the party who had booked 120 bundles of dried fish. At first it was written that Pw.15 had information that Narayanaswami, Assistant Goods Clerk, Kasergode railway station, had received illegal gratification towards the booking of 120 bundles of dried fish from Ambu and Madhavan. The booking was really done by Ambu and Madhavan (Pww.l and 2) and so their names were correctly entered at first. All the same it must have immediately struck to Pw.15 that the receipt of illegal gratification was from Ambu alone even though Pw. 2 was present at the time. That must have been the reason why he made the correction then and there by scoring off the words "and Madhavan" and inserting the words "fish merchant, Kasergode" as descriptive of Ambu. Consistent with this modification the word "parties" in the latter portion of the entry had also to be corrected to "party". Thus it is clear that the correction does not in any way go against the prosecution case that the currency notes which the accused had taken from the left-hand drawer of the table and handed over to Pw.15 represented the illegal gratification received by the accused from Pw.1. The fact that the accused had produced the currency notes from the left-hand drawer of the table was clearly mentioned in the entry as it was made on the 9th itself and the numbers noted in that entry. There has been no complaint by Pw.13 or any of his co-employees that there has been any tampering with these particulars as noted in the entry made on the 9th itself. It is obvious that the railway employees were trying to get out of the bad situation in which they were placed when they sent the reports Exts. D-5, D-6 and D-7 to their official superior. The corrections found in the entry in Ext. It is obvious that the railway employees were trying to get out of the bad situation in which they were placed when they sent the reports Exts. D-5, D-6 and D-7 to their official superior. The corrections found in the entry in Ext. D-4 were also prominently made mention of to suggest that there was something wrong in the investigation that was being conducted by the Special Police Officer. We are clearly of opinion that there is no real basis for such a suggestion. 7. Even though the prosecution evidence against the accused is clear and convincing, in respect of the charge under the first count, it is urged on his behalf that such evidence cannot be accepted because the substantial part of such evidence is not better than the tainted evidence of an accomplice. The main attack on this ground is directed against the evidence of Pww.1 and 2. Of these two witnesses, Pw.1 alone has taken part in the actual payment of the illegal gratification to the accused. But it has to be remembered that he was not a willing party to such payment. He had no inclination at all to secure an advantage from the accused by payment of illegal gratification to him. On the other hand he was all along protesting and complaining against the conduct of the accused in insisting on payment of such illegal gratification as a condition precedent to the prompt despatch of goods consigned by traders like Pw.1. Such an attitude on the part of Pw.1 is evident from the complaint petition Ext. P-1 presented by him to Pw.15 on 7-10-1954. Even in respect of the consignment of 120 bundles of dried fish covered by the forwarding notes Exts. P-2, P-3 and P-4, Pw.1 is seen to have tried to avoid payment of illegal gratification to the accused. But the accused was insisting on such payment and hence Pw.1 was forced to report the matter to Pw.15 who thereupon made up his mind to trap the accused if he was really indulging in demanding and receiving illegal gratification. With that object in view, Pw.15 directed Pw.1 to go to the accused with the currency notes whose numbers were noted in the mahazar Ext. P-5 and to demand the railway receipts in respect of the goods covered by Exts. P-2, P-3 and P-4. With that object in view, Pw.15 directed Pw.1 to go to the accused with the currency notes whose numbers were noted in the mahazar Ext. P-5 and to demand the railway receipts in respect of the goods covered by Exts. P-2, P-3 and P-4. Pw.1 was also specially directed that he need pay the amount to the accused only in case of his demanding the same by way of mamool. The payment of the currency notes M. Os.1 to 4 by Pw.1 to the accused, was made under such circumstances. It is thus obvious that in the matter of such payment Pw.1 was merely rendering the necessary assistance for the detection of the crime that the accused was committing. It was not a voluntary payment on his part and he had not the mens rea that he was paying the amount to secure a favour from the accused. When such criminal intention was totally absent on his part, it cannot be said that he aided or abetted the commission of the offence of receiving illegal gratification by the accused. Pw.1 cannot therefore be said to have been an accomplice in the commission of such an offence by the accused. He was not a willing participant in that offence but was only a victim of it because the accused was really extracting the amount from Pw.1. The question as to when the giver of a bribe has to be treated as an accomplice came up for consideration in Papa Kamalkhan v. Emperor (A. I. R.1935 Bombay 230) and there it was pointed out that "the objections which usually arise to the evidence of an accomplice do not really apply where the alleged accomplice, i. e., the person who pays the bribe, is not a willing participant in the offence, but is really a victim of that offence". In State v. Minaketan (A. I. R.1952 Orissa 267) also this question arose for consideration. In dealing with the question Narasimham, J., made the following observations: "From S.109, Illustration A, and S.161 Illustration A, Penal Code, it is clear that mere offer of money or illegal gratification to a public servant would not amount to an offence of abetment of bribery unless that offer is made as a reward for showing that person some favour in exercise of the official functions of the public servant. That is to say, there must be the necessary criminal intention on the part of the officer. In the case of a trap witness engaged for the purpose "of decoying a public official by offering him marked currency notes, this essential criminal intention is wanting A person engaged by the police to give marked currency notes to a public officer with a view to detect the offence of bribery, is not an accomplice, because he lacks the necessary criminal intention". The same question came up for consideration of the Supreme Court in Shiv Bahadur Singh v. State of Vindhya Pradesh (A. I. R.1954 Supreme Court 322) and there it was ruled that the evidence of a witness who was not a willing party to the giving of the bribe to the accused but was only actuated by the motive of trapping the accused, cannot be treated as the evidence of an accomplice. It was also pointed out that the evidence of such a witness has to be treated as the evidence of a partisan witness who was out to entrap the accused. In that particular case the evidence of the partisan witnesses was found to be not quite satisfactory and accordingly it was stated that their evidence could not be relied on for implicating the accused without independent corroboration. It is significant to note that it was not laid down as a rule of law that without independent corroboration the evidence of partisan witnesses can under no circumstances be relied on as sufficient to sustain a conviction of the accused. After all, the rule regarding independent corroboration is only a rule of prudence. If in any particular case the evidence of partisan witnesses is seen to be thoroughly reliable and trustworthy, there will be nothing wrong in the court in acting upon such evidence and entering a conviction against the accused. Even in the cases of witnesses standing in the position of accomplices, their evidence is not totally discarded. All that is insisted on as a matter of prudence is that before acting upon such evidence the court must be satisfied that such evidence has been corroborated in material particulars by other items of independent evidence. Even in the cases of witnesses standing in the position of accomplices, their evidence is not totally discarded. All that is insisted on as a matter of prudence is that before acting upon such evidence the court must be satisfied that such evidence has been corroborated in material particulars by other items of independent evidence. In Papa Kamalkhan v. Emperor (A. I. R.1935 Bombay 230) it was pointed out that the rule of the court which requires corroboration of the evidence of an accomplice, applies with very little force to a case in which the charge against the accused is that he extorted bribe from other persons. 8. On a consideration of the evidence of Pww.1 and 2 in the light of the principles already explained, it is clear that the evidence of these two witnesses cannot be treated as evidence of accomplices. The utmost that can be said about them is that they are partisan witnesses who rendered assistance to Pw.15 to trap the accused. All the same it is seen that their evidence is thoroughly reliable and trustworthy. It may also be pointed out that their evidence is fully corroborated in all material particulars by the evidence of Pw. 3 who is a respectable and independent witness. As for the recovery of the currency notes M. Os.1 to 4 from the left-hand drawer of the table of the accused, there is also the evidence of the other independent witness Pw.12. His evidence corroborates-the evidence of Pww.1 to 3. All of them have stated that the currency notes were taken by the accused himself from the left hand drawer of the table and handed them over to Pw.15. They have also stated that on examining these notes it was found that their numbers were the same as those noted in the mahazar Ext. P-5 which Pw.15 had prepared in respect of the currency notes that were in the possession of Pw.1 when he proceeded to meet the accused. Under these* circumstances the learned Special Judge was fully justified in accepting the evidence already referred to and in finding the accused guilty of the offence under the first count in the charge-sheet. 9. P-5 which Pw.15 had prepared in respect of the currency notes that were in the possession of Pw.1 when he proceeded to meet the accused. Under these* circumstances the learned Special Judge was fully justified in accepting the evidence already referred to and in finding the accused guilty of the offence under the first count in the charge-sheet. 9. The next point urged on behalf of the accused-appellant is that the conviction entered against him under b. 161 of the Indian Penal Code is unsustainable because the charge framed against him did not make mention of an offence under this particular section. The charge against the accused was that he committed the offence punishable under S.5 (1) (a) read with S. (2) of the Prevention of Corruption Act (Act II), of 1947, in so far as he had received illegal gratification on nine different occasions as specified in the charge sheet. The argument advanced on behalf of the appellant is that criminal misconduct by a public servant in the discharge of his official duties is a new offence made punishable under S.5 of the Prevention of Corruption Act and that such an offence has no counter-part in the Indian Penal Code. It is further contended on his behalf that he is not a public servant as contemplated by S.2 of the Prevention of Corruption Act. That section states that for the purpose of the Act, 'public servant' means a public servant as defined in S.21 of the Indian Penal Code. This definition did not take in railway employees and hence S.137 of the Indian Railways Act (IX of 1890) made a special provision regarding railway servants. Sub-section (1) of that section states that "every railway servant shall be deemed to be a public servant for the purpose of Chapter IX of the Indian Penal Code". It may be mentioned here that S.161 of that Code finds a place in Chapter IX. Sub-section 2 of S.137 of the Indian Railway Act states that "in the definition of 'legal remuneration" in S.161 of the Penal Code, the word 'Government' shall for the purpose of sub-section (1), be deemed to include any employer of a railway servant as such". Sub-section 2 of S.137 of the Indian Railway Act states that "in the definition of 'legal remuneration" in S.161 of the Penal Code, the word 'Government' shall for the purpose of sub-section (1), be deemed to include any employer of a railway servant as such". Sub-section (4) of S.137 states that "Notwithstanding anything in S.21 of the Indian Penal Code, a Railway servant shall not be deemed to be a public servant for any of the purposes of that Code except those in subsection (1)". These provisions were in force at the time of the commencement of the present case against the accused. But by Act XVII of 1955 an amendment was made to S.137 of the Indian Railways Act. Sub-section (1) of that section was amended as follows: "Every railway servant not being a public servant as defined in S.21 of the Penal Code shall be deemed to be a public servant for the purposes of Chapter IX and S.409 of that Code". By the amending Act sub-section (4) of S.137 was omitted. The result of the amendment is that the railway servant has to be deemed to be a public servant for the purpose of Chapter IX and S.409 of the Indian Penal Code. The position taken up by the appellant is that such an extended definition cannot be made applicable to him so far as this case is concerned, which commenced prior to the date of the aforesaid amendment. That position has to be accepted as correct. But it has no significance so far as the present case is concerned, because the accused has not been convicted of an offence under S.409 of the Penal Code. There was no charge also against him under that section. His conviction is under S.161 of the Penal Code. As already stated, this section appears in Chapter IX of the Penal Code, and by virtue of sub-section (1) of S.137 of the Indian Railways Act as it stood before the amendment of the year 1955, every railway servant had to be deemed to be a public servant for the purpose of Chapter IX of the Penal Code. Thus there can be no doubt that as a public servant the accused could be tried and convicted of the offence under S.161 of the Indian Penal Code. 10. Thus there can be no doubt that as a public servant the accused could be tried and convicted of the offence under S.161 of the Indian Penal Code. 10. Coming to the objection that the offence under S.5 of the Prevention of Corruption Act is a new offence independent of the offence under S.161 of the Penal Code, we are clearly of opinion that there is no force or merit in that objection. Clauses (a) to (d) of sub-section (1) of S.5 of the Prevention of Corruption Art, specify the different offences which would amount to criminal misconduct by a public servant in the discharge of his official duty and punishable under sub-section (2) of S.5. What is significant to note is that everyone of the offences specified in clauses (a) to (d) is an offence made punishable under the Penal Code also. All that has been done by S.5 of the Prevention of Corruption Act is to make a special provision so far as public servants are concerned and not to create any new offence. The charge against the accused in the present case is that he is guilty of the offence under clause (a) of sub-section (1) of S.5. Sub-section (1) (a) runs as follows: "A public servant is said to commit the offence of criminal misconduct in the discharge of his duty if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in S.161 of the Indian Penal Code". It is thus clear that the essential ingredients of the offence under S.5 (1) (a) of the Prevention of Corruption Act are the same as the ingredients of the offence under S.161 of the Indian Penal Code subject to one difference, viz., that the offence under S.5 (1) (a) is an aggravated form of the offence under S.161. Repetition of the offence under S.161 of the Indian Penal Code would amount to the offence of criminal misconduct under S.5 (1) (a) of the Prevention of Corruption Act. Repetition of the offence under S.161 of the Indian Penal Code would amount to the offence of criminal misconduct under S.5 (1) (a) of the Prevention of Corruption Act. It follows therefore that the charge framed against the accused in this case that he has committed the offence under S.5 (1) (a) of the Prevention of Corruption Act necessarily implies that he has committed the offence punishable under S.161 of the Indian Penal Code. In fact, the particulars specified under each of the 9 counts mentioned in the charge sheet are such as to give notice to the accused that he is called upon to answer nine separate offences falling under S.161 of the Penal Code. There is thus no basis for scope for the complaint that the accused had no notice of the charge regarding the offence punishable under S.161 of the Penal Code or that he was in any way prejudiced by the omission to specify S.161 also in the charge. As already pointed out, S.161 of the Penal Code is expressly referred to in S.5 (1) (a) of the Prevention of Corruption Act, under which the charge against the accused was framed. Thus it cannot be said that there has been any serious or material defect in the charge framed in this case. It cannot also be said that any prejudice has been caused to the accused on account of any defect in the form of the charge or on account of the manner in which the trial proceeded. The objections raised on the basis of such grounds against the sustainability of the conviction under S.161 cannot, therefore, prevail and they have only to be overruled. In this connection, the mandatory provision contained in S.537 (b) of the Code of Criminal Procedure has also to be taken note of. That provision is in the following terms: "Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a court of competent jurisdiction shall be reversed or altered under Chapter XXVII or on appeal or revision on account of any error, omission or irregularity in the charge including any misjoinder of charges". 11. Viewed in another aspect also, the conviction of the accused under S.161 of the Indian Penal Code is seen to be perfectly legal and sustainable. 11. Viewed in another aspect also, the conviction of the accused under S.161 of the Indian Penal Code is seen to be perfectly legal and sustainable. In entering such a conviction against the accused the learned Special Judge was acting within the scope of his authority as conferred by S.238 of the Code of Criminal Procedure. Sub-section (1) of that section states that "When a person is charged with an offence consisting of several particulars, a combination of some only of which constitutes a complete minor offence, and such combination is proved but the remaining particulars are not proved, he may be convicted of the minor offence, though he was not charged with it". The particulars mentioned in the charge-sheet in this case were such as to constitute 9 separate offences punishable under S.161 of the Penal Code, the combined effect of all these particulars being the commission of an aggravated form of such smaller offences. If the repetition of these smaller offences as specified in the charge had been proved against the accused, he could have been convicted of the aggravated offence under S.5 (1) (a) of the Prevention of Corruption Act. Since the particulars relating to one only of the several instances specified in the charge have been clearly and conclusively proved against the accused and since those particulars by themselves are sufficient to constitute the smaller offence punishable under S.161 of the Penal Code, the conviction of the accused for that smaller offence is legal and is warranted by S.238 of the Code of Criminal Procedure. Thus in any view of the case the conviction entered against the accused under S.161 of the Indian Penal Code has to be confirmed. In the matter of awarding the sentence, the learned Special Judge has been very lenient and the accused cannot have any grievance about the same. We see no justification for interfering with the sentence. 12. The appellant has succeeded only in getting a reversal of the Special Judge's finding that the charge against the accused under item 6 has been proved by the prosecution. But the finding in respect of item 1 of the charge sheet stands and we are confirming it. That finding by itself is sufficient to sustain the conviction under S.161 of the Indian Penal Code. 13. But the finding in respect of item 1 of the charge sheet stands and we are confirming it. That finding by itself is sufficient to sustain the conviction under S.161 of the Indian Penal Code. 13. In the result the conviction entered against the accused under S.161 of the Indian Penal Code and the sentence awarded to him by the Special Judge are confirmed and the appeal is dismissed. The appellant's bail bonds are cancelled and he is remanded to custody.