D. P. DESAI, M. U. SHAH, J. ( 1 ) * * ** ( 2 ) THUS as aforesaid the evidence of the complainant which is dependable in material parts discloses that while the complainants Firm was in great difficulties as a result of non-payment of income-tax advance payments non-submission of sales-tax returns for three years and failure to obtain C Forms and issuance of show cause notices Exs. 19 and 20 by the Sales-tax Department the complainant came to engage appellant No. 2 as his sales-tax adviser He wanted the Firms affairs to be straightened out and his sales-tax and income-tax assessments for the relevant years to be finalized to the Firms advantage and requisite C forms obtained. Appellant No. 1 was a friend and relation of appellant No. 2. At the material meetings with the complainant the two appellants were together. Rs. 5 0 were obtained by them from the complainant in the first instance and then Rs. 2 0 the latter amount having been paid by complainants brother Navinbhai in a Hotel near Bhadra Gate in Ahmedabad where both the appellants were present. All these acts are shown to have been done by them in concert and in pursuance of a pre arranged plan the moneys were obtained by them on false representations and assurances A further demand of Rs. 6 0 was then made from the complainant. But the complainant had the benefit of the advice of another sales-tax practitioner one Mr. Damodia and he approached the Sales-tax Commissioner Anklesvaria and filed his complaint Ex. 21. Complainants evidence discloses that a meeting took place in his bungalow on the morning of March 27 1970 when both accused persons were present as arranged earlier demand of money was made by the appellants from him and Rs. 6 0 in 60 currency Notes of Rs. 100. 00 denomination each were accepted by them as bribe money for themselves and for others and as a motive or reward for showing favour to the complainants Firm in the matter of sales-tax assessments for the relevant years and for obtaining all clear NIL sales-tax assessment orders for these years. 6 0 in 60 currency Notes of Rs. 100. 00 denomination each were accepted by them as bribe money for themselves and for others and as a motive or reward for showing favour to the complainants Firm in the matter of sales-tax assessments for the relevant years and for obtaining all clear NIL sales-tax assessment orders for these years. The evidence of the complainant and that of his brother Navinbhai although it appears to be coming from accomplice receives corroboration from additional evidence rendering it probable that the version of the complainant and that of his brother is true and that it is reasonably safe to act upon it. The additional evidence is supplied by the statements to be found in complainants application (complaint) Ex. 21 dated March 25 1970 submitted to Sales-tax Commissioner Mr. Anklesvaria. The find of the 60 currency Notes of Rs. 100. 00 each from the plastic bag Art. 25 which was chained and which appellant No. 1 Sales-tax Inspector was carrying with him when the two appellants were about to leave complainants bungalow and the fact that the numbers of the currency Notes tallied with those recorded in the preliminary panchnama Ex. 26 afford sufficient corroboration to complainants version. The evidence of panch witness Makwana who was present on the morning of March 27 1970 in the complainants drawing room and who is not shown to be an interested witness and who in our opinion is an independent witness and whose evidence has a ring of truth lends further credence to the evidence of the complainant regarding the demand and acceptance of the bribe money of Rs. 6 0 by the two appellants acting in concert and the find of the bribe money from the plastic bag of the appellant No. 1. The find of anthracene powder stains on the 60 currency Notes of the handle and chain of the plastic bag Art. 25 and also inside the bag on the hands and fingers of appellant No. 1 on the pant pocket of appellant No. 1 inside the cloth bag of the complainant and on appellant No. 2s right hand and on fingers of his right hand supply ample and satisfactory corroboration to the version as given by the complainant and his brother Navinbhai. Corroboration is also supplied by the circumstance that appellant No. 1 had gone to the Registration and Returns Department which was headed by P. W. 7 Rifai and as deposed to by P. W. 10 Vyas who was a clerk in that office some 8 to 10 days prior to the incident of acceptance of bribe money and had requested Vyas to send the forms of the complainants Firm to the Officer in charge of its assessment files although he himself belonged to another Division. The circumstance that the complainant had sold his new Fiat Car for Rs. 17 0 on february 7 1970 soon after the first meeting between the complainant and the two appellants at complainants bungalow when he was told that the case was a difficult one and might entail serious consequences and that it would be necessary to bribe the officers and he was asked to keep ready a sum of Rs. 5 0 also furnishes additional evidence to lend credence to complainants version. The evidence thus leaves no manner of doubt that the sum of Rs. 6 0 in 60 currency Notes of Rs. 100. 00 denomination each was bribe money obtained by the two appellants acting in concert and as a gratification other than legal remuneration and as a motive or reward for obtaining desired sales-tax assessment orders and C forms and for straightening out the affairs of the complainants firm. It was appellant No. 1 who had counted the currency Notes and put the currency Notes in his plastic bag Art. 25 and chained the bag. The currency Notes were found from the possession of appellant No. 1 who was a public servant This would raise a presumption of guilt against appellant No. 1 under sec. 4 (1) of the Prevention of Corruption Act that he had committed the offences. The presumption is not rebutted. Apart from that the defence theory that Rs. 6 0 were to be paid as fees of the sales-tax practitioner viz. appellant No. 2 is not capable of acceptance in the very nature of things. It is difficult to see how when the sales-tax practitioner was given Rs. 300. 00 in cash in the first instance when the complainant contacted appellant No. 2 and engaged him as his sales-tax adviser and when the fees of Rs. 300. 00 and Rs. 200. appellant No. 2 is not capable of acceptance in the very nature of things. It is difficult to see how when the sales-tax practitioner was given Rs. 300. 00 in cash in the first instance when the complainant contacted appellant No. 2 and engaged him as his sales-tax adviser and when the fees of Rs. 300. 00 and Rs. 200. 00 were fixed for finalization of assessments of each years sales-tax and income-tax respectively such a large sum of Rs. 6 0 would have been settled and paid as fees. Again Rs. 5 0 plus Rs. 2 0 were obtained earlier. The very predicament and the financial strees in which the complainant found himself at the relevant point of time when a sum of Rs. 6 0 was paid negatives the defence of the accused persons. In any view of the matter therefore we must accept the learned trial Judges finding that the accused persons who are the two appellants before us had acted in concert in pursuance of a prearranged plan and hold that appellant No. 1 had obtained from the complainant an amount of Rs. 6 0 as illegal gratification. The offence under sec. 161 of the Indian Penal Code is thus clearly made out as against the accused appellant No. 1. The offence under sec. 5 (1) (d) read with sec. 5 (2) of the Prevention of Corruption Act is also made out. We must accordingly maintain the order of conviction and sentence passed on appellant No. 1 Rakesh Gandhi who was accused No. 1 in Special Case No. 12 of 1970 out of which this joint appeal arises. His appeal fails and is dismissed. He should surrender to his bail on September 7 1971 ( 3 ) COMING to the appeal of original accused No. 2 named Mafatlal C. Shah who was the Sales-tax Practitioner and who is the appellant No. 2 herein and who has filed a joint appeal along with appellant No. 1 and is now allowed to be represented by Mr. M R. Barot although Mr. 1) K. Shah is an Advocate on record for both of them it may be recalled that the learned Trial Judge has found that the two accused persons had common intention to accept money as bribe money from the complainant and they had demanded an amount of Rs. M R. Barot although Mr. 1) K. Shah is an Advocate on record for both of them it may be recalled that the learned Trial Judge has found that the two accused persons had common intention to accept money as bribe money from the complainant and they had demanded an amount of Rs. 6 0 him and accepted the same as narrated by the complainant on March 27 1970 at 10-15 A. M. at his bungalow. The learned Trial Judge has however observed that as he had come to the conclusion that the two accused persons formed common intention and committed the offence it cannot be said that accused No. 2 (appellant No. 2) also abetted the offence and therefore he did not find him guilty under sec. 165a of the Indian Penal Code. He has thus acquitted appellant No. 2 of the offence punishable under sec. 165-A of the Indian Penal Code. He has convicted him under sec. 161 read with sec. 34 Indian Penal Code and sentenced him as aforesaid. It is unfortunate that the State has not filed an appeal against the order of acquittal of the appellant No. 2 on this count under sec. 165-A Indian Penal Code. In absence of any such appeal we are not called upon to consider the question of appellant No. 2s liability for the offence punishable under sec. 165a of the Indian Penal Code. The only question that we are called upon to decide in this appeal is as to whether appellant No. 2 who was a sales-tax practitioner and not a public servant can be held to be guilty of the offence punishable under sec. 161 read with sec. 34 Indian Penal Code. ( 4 ) NOW sec. 161 of the Indian Penal Code deals with the case of a public servant taking gratification other than legal remuneration in respect of an official act. Sec. 161 will have application to the case of a person who is or expects to be a public servant and thus accepts or obtains or agrees to accept or obtain or attempts to obtain from any person any gratification whatever as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official functions favour or disfavour to any person. The acts contemplated by sec. The acts contemplated by sec. 161 of the Act are referable to a person who is or expects to be a public servant. Thus sec. 161 creates a substantive offence for which a person being or expecting to be a public servant and doing the acts falling within the purview of sec. 161 may be held to be liable. Sec. 34 of the Indian Penal Code lays down a principle of joint liability in the doing of a criminal act. It reads: When a criminal act is done by several persons in furtherance of the common intention of all each of such person is liable for that act in the manner as if it were done by him alone. As observed by Their Lordships of the Supreme Court in Srikantiah and another v. State of Mysore A. I. R. 1958 S. C. 672 at p. 676 sec. 34 is only a rule of evidence and does not create a substantive offence. It means that if two or more persons intentionally do a thing jointly it is just the same as if each of them had done individually The latter decision of the Supreme Court in Jaikrishnadas Manohardas Desai and another v State of Bombay A. I. R. 1960 S. C. 889 clarifies the point and says: Sec. 34 does not create an offence; it merely enunciates a principle of joint liability for criminal acts done in furtherance of the common intention of the offenders. Thus sec. 34 does not create a substantive offence but merely enunciates a principle of Joint liability for criminal acts done in furtherance of the common intention of the offenders. The word act has been defined in sec. 33 of the Indian Penal Code as denoting as well a series of acts as a single act. The expression criminal act act has not been defined in Indian Penal Code. However we find that Their Lordships of the Privy Council had in Barendra Kumar Ghosh v. King Emperor 1925 P. C. 1 at p. 9 an occasion to consider the meaning and import of the expression. Lord Sumner while dealing with the case has observed x x x x In other words a criminal act means that unity of criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone that is in a criminal offence. Lord Sumner while dealing with the case has observed x x x x In other words a criminal act means that unity of criminal behaviour which results in something for which an individual would be punishable if it were all done by himself alone that is in a criminal offence. Thus the criminal act contemplated implies unity of criminal behaviour and the capacity of the individual to do the criminal act all by himself. ( 5 ) CRIMINAL act as contemplated by sec. 34 and as explained by the Privy Council is that unity of behaviour which results in something which is an offence. Under sec. 161 of the I. P. Code the act of acceptance of illegal gratification for the purpose stated in that section would become a criminal act when the author of that act is a public servant. Therefore when a public servant does the act mentioned in sec. 161 that act becomes a criminal act which results in an offence punishable under the section. Now sec. 34 I. P. Code does not say When an offence is committed by several persons but it refers to the commission of criminal act in furtherance of the common intention of two or more persons. So also the section does not say while fixing the liability of each participant that such person will be punishable as if the offence was committed by him alone. The section in terms speaks of a criminal act done in furtherance of the common intention and fixes the liability also of the said criminal act which is jointly done. In fixing this liability the section says each of such persons is liable for that act in the same manner as if it was done by him alone (emphasis supplied ). Therefore in the present case falling under sec. 161 I. P. Code one has to assume that the criminal act that is the act of acceptance of illegal gratification for purposes mentioned in sec. 161 was done by the accused No. 2 alone who was not a public servant. Having done so one should ask oneself whether the accused would have been liable for this act of his under sec. 161. 161 was done by the accused No. 2 alone who was not a public servant. Having done so one should ask oneself whether the accused would have been liable for this act of his under sec. 161. If the accused would not have been liable for this criminal act if he had done it alone by reason of the fact that he was not a public servant then no liability can be fixed upon him by reason of sec. 34. This is clear from the expression in the same manner which points at the liability for punishment arising under the law if the criminal act was done by the accused who was not a public servant alone. If no liability independently of sec. 34 arises in a given case then no liability by virtue of sec. 34 also will arise. The liability sought to be fastened upon a person who is party to the common intention is dependent upon the liability arising from the criminal act if it was done by that person alone. The criteria for fixing that liability is to assume by virtue of the fiction created by the latter part of sec. 34 that the criminal act which was in fact done jointly was done by the accused alone. ( 6 ) AS aforesaid the individual who is guilty of criminal behaviour would be liable under sec. 34 or the I. P. Code for the relevant offence only if it could be shown that he would have been liable for the unity of such criminal behaviour if he had done all these acts alone by himself. The expressions in the same manner and as if it were done by him alone must be given a meaning. Giving a meaning and content to this expression in our opinion a person would be liable under sec. 34 of the Act only if he can be held to be liable for all the acts if done by him alone. Now it may be remembered that sec. 161 creates a substantive offence for a person who is or expects to be a public servant and commits the criminal act or acts referred to therein. Appellant No. 2 Mafatlal C. Shah who is the original accused No. 2 was not a public servant and did not do the criminal acts as being or expecting to be a public servant. Appellant No. 2 Mafatlal C. Shah who is the original accused No. 2 was not a public servant and did not do the criminal acts as being or expecting to be a public servant. The principal of joint liability enunciated in sec. 34 of the Act where the other person is not a public servant. We cannot thus accept the contention raised by Mr. K. M. Chhaya learned Assistant Government Pleader appearing for the State that sec. 34 will have an application also to criminal acts committed by a person who is not a public servant but who acts in furtherance of the common intention of the public servants. It would follow that appellant No. 2 Mafatlal C. Shah cannot be held to have been guilty under sec. 161 read with sec. 34 I. P. Code. Thus although we are inclined to accept the prosecution case that appellant No. 2 was a party and a privy to all these criminal acts and was acting in concert with appellant No. 1 we cannot maintain the order of conviction of the said appellant No. 2 under sec. 161 read with sec. 34 1 P. Code. The order of sentence cannot thus be sustained. We accordingly allow his appeal set aside the order of conviction and Sentence passed against appellant accused No. 2 named Mafatlal C. Shah and acquit him of the offence for which he has been convicted. The fine paid if any is ordered to be refunded to him. The bail bonds to be cancelled. ( 7 ) BEFORE we part with case we must give expression to a feeling of distress in our mind. The conduct of appellant No. 2 a Sales-tax Practitioner is reprehensible. He is shown to be a particeps criminis in all the criminal acts. It is only because the appellant No. 2 is not a public servant that he has to be acquitted of the offence under sec. 161 read with sec. 34 I. P. Code for which alone he has been convicted. The State has not filed an appeal against the order of acquittal under sec. 165a of the Act and therefore we are not called upon to decide whether the case against the appellant No. 2 falls under that section. But clearly. 161 read with sec. 34 I. P. Code for which alone he has been convicted. The State has not filed an appeal against the order of acquittal under sec. 165a of the Act and therefore we are not called upon to decide whether the case against the appellant No. 2 falls under that section. But clearly. the appellant No. 2 was an active participant in the crime We are not in a position to ascertain whether appellant No. 2 holds a Sanad of this court or of any subordinate court. Otherwise we would have sent a copy of this judgment ent to the Bar Council for taking necessary action if any against him. In this situation we direct that a copy of this judgment be sent to the Sales-tax Commissioner Ahmedabad for information and action if any thought necessary. .