JUDGMENT - SHARAD MANOHAR, J.:---The appellant in this appeal is the original accused. He was convicted of an offence under section 161 of Indian Penal Code and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act and was sentenced to rigorous imprisonment for a period of six months and to pay a fine of Rs. 100/-, in default rigorous imprisonment for 15 days on each count. 2. The appeal is really capable of being disposed of on a narrow point namely that the provisions of section 161 Indian Penal and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act could have no application to the facts alleged by the prosecution even assuming that the facts alleged are held to be proved against him. As will be presently pointed out the correctness of the above legal position is very fairly considered by Mr. Damle, the learned Public Prosecutor and if that is the legal position, it is really unnecessary to go into the question as to whether the prosecution could be said to have been proved the facts alleged against the accused. All the same I will briefly state the case of the prosecution in the lower Court. 3. The accused was Assistant Civil Engineer working with Gangapur Co-operative Sugar Factory Ltd., Gangapur. He has been employed by the society on 30th July, 1975. There is no dispute that the society is governed by Maharashtra Co-operative Societies Act, 1960. One Devkar is a resident of Kopergaon. There is no dispute that the accused and said Devkar come from the same region and they come from the villages which are quite near each other in Koperagaon Taluka. The Sugar Factory was constructing approach road from the main road towards the factory. It appears that the road was to be constructed by the factory in the first instance and the expenditure in that behalf was to be ultimately borne by the Zilla Parishad. It is the prosecution case that the Devkar is a well to do person and is financially quite sound. He possessed agricultural lands growing sugar-cane and also owns and plies a motor truck. He used to take transport contract on the strength of the motor truck. It is the prosecution case that the Devkar is a well to do person and is financially quite sound. He possessed agricultural lands growing sugar-cane and also owns and plies a motor truck. He used to take transport contract on the strength of the motor truck. As the society was repairing the approach road, Devkar took a contract of transportation of metal, rubble and muram required by the society for the purpose of the road. As per the contract the material in question was to be brought by him for a distance of 10 to 15 kms. He had to load the truck with that material from that place and had to transport the same to the work site and also thereafter, stack the same at proper places. Upon the material being properly stacked it was for the Assistant Chief Engineer such as the accused to measure the quantity of material brought by Devkar in the truck and to prepare the appropriate bills in favour of the transporter. During the period between June, 1975 to October 1975, Devkar transporter 519 tons of metal, 179 brass of rubble and 112 brass of muram. As per the practice he went on receiving payments for the running bills for the work done by him. His final bill became due after the entire contract work to be performed by him was completed, by the end of October 1975. The prosecution contended that the preparation of the final bill however remained pending because the accused had not completed the measurement of the work and was not preparing the bills on the strength of which Devkar could claim the amount of the bill for the work done by him for the society. The case of the prosecution is that on 2-11-1975 the accused demanded a sum of Rs. 1500/- as illegal gratification for he purpose of passing his final bill. The contention is that after negotiations the amount was settled at Rs. 1200/-. The accused thereafter prepared a final bill for the amount payable by the society to Devkar in connection with the transportation work. The bill was presented by Devkar to the account section of the society. The Accounts Officer handed over the cheque for the full amount of the bill on 9-12-1975. Devkar encashed the cheque on 10-12-1975. The allegation is that on 9-12-1975 the accused once again demanded the sum of Rs. The bill was presented by Devkar to the account section of the society. The Accounts Officer handed over the cheque for the full amount of the bill on 9-12-1975. Devkar encashed the cheque on 10-12-1975. The allegation is that on 9-12-1975 the accused once again demanded the sum of Rs. 1200/- which Devkar had agreed to pay him as illegal gratification. Devkar promised to pay the said amount of Rs. 1200/- after encashment of the cheque given by the society but instead of making any such payment he intimated this fact to the anti-corruption department of the police and a trap was led against the accused in that behalf. On 11-12-1975 Devkar came to the accused at the rendezvous and in the presence of the panchas the accused was found to have received Rs. 1200/- from Devkar. It is needless to state that the currency notes in the possession of Devkar were treated with phenolphthalein powder and the same currency notes were found to have been accepted by accused from the said Devkar. The accused was arrested in the presence of the panchas and was thereafter charge-sheeted for commission of offence under the above mentioned section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947. 4. The defence of the accused was that there was a relationship of great trust and confidence between the accused and the said Devkar. Devkar had kept the truck practically at the disposal of the accused. The accused used to give money for the purpose of repairs etc. and also used to finance money to Devkar at times as temporary handloans. He contended that on 31st October, 1975, Devkar had asked for a temporary handloan of Rs. 1500/- for payment to his own workers who needed monies for the purpose of the ono-coming Diwali festival. The accused stated that he could spare only a sum of Rs. 1200/- on the date of h is salary which would be paid to him by the society on the first day of the month. He stated that Devkar received the amount from the accused in a canteen maintained by the society within its precincts on 1st November, 1975. The accused stated that he could spare only a sum of Rs. 1200/- on the date of h is salary which would be paid to him by the society on the first day of the month. He stated that Devkar received the amount from the accused in a canteen maintained by the society within its precincts on 1st November, 1975. He further contended that this was the amount which he demanded back from Devkar when he received his final bill on 9-12-1975, and he contended further that it was that amount which he received back from Devkar on the date of the incident. He alleged that they had developed a very intimate relationship of confidence between himself and Devkar when the accused joined the service of the society, but later on the relations became somewhat cool and distant. This was so because Devkar had desired that the accused should do him certain favour in respect of certain matters and when the accused expressed his inability Devkar became indifferent to him. The accused contended that he was falsely implicated by Devkar on account of the resentment nursed by him against the accused for the reasons mentioned above. 5. The accused further contended that even assuming that all the facts alleged against the accused by said Devkar and by the prosecution were correct, neither the provisions of section 161 of Indian Penal Code not of section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act would come into play. He contended that he was not a public servant within the meaning of any of the provisions and hence even acceptance of the amount by the accused from the said Devkar in the circumstances alleged by the prosecution spelt out no offence under any of the alleged provisions. 6. The latter contention of the accused was negatived by the learned Special Judge. He held that section 161 of the Indian Penal Code or section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act by themselves did not apply to the persons such as the present accused. But he held that the ambit of the words "public servant" finding place in the Indian Penal Code in the Prevention of Corruption Act was enlarged by virtue of the provisions of section 161 of the Maharashtra Co-operative Societies Act, 1960. But he held that the ambit of the words "public servant" finding place in the Indian Penal Code in the Prevention of Corruption Act was enlarged by virtue of the provisions of section 161 of the Maharashtra Co-operative Societies Act, 1960. He held that the accused was a public servant within the meaning of section 161, read with section 2(20) of the Maharashtra Co-operative Societies Act. 7. So far as the evidence led by the prosecution and accused was concerned the learned Judge believed the evidence of the prosecution witnesses and disbelieved the evidence led by the accused. The accused examined himself under section 315 of the Criminal Procedure Code. He also led evidence of independent witnesses namely Kamal Narayan (D.W. 3) and Suryabhan Vishwanath Kale (D.W. 5). The learned Judge disbelieved the evidence of the accused as well as the said two witnesses of the accused. Taking this view of the matter he held that the prosecution had established the fact that the accused as a public servant had demanded and received illegal gratification of Rs. 1200/- from the said Devkar. He, therefore, passed the aforementioned order of conviction and sentence against the accused. 8. As stated above at the outset the entire question is capable of being disposed of on a narrow point arising out of the definition of "public servant" under section 21 of the Indian Penal Code read with section 161 of the Maharashtra Co-opeartive Societies Act, 1960. There is no dispute before me, and there cannot be any dispute in this behalf, that neither section 161 of Indian Penal Code or section 5(1)(d) of the Prevention of Corruption Act, could have any application unless the recipient of the impugned consideration was a public servant. However, there is further no dispute before me that the definition of the word "public servant" obtaining in section 21 of the Indian Penal Code standing by itself could have no application to any act done by the person such as the present accused person who is after all only an employee of the co-opeative society which is a private institution and which admittedly does not have the status even of any statutory corporation. The only reason why, however, the learned Judge held that the accused must be deemed to be a public servant within the meaning of section 21 of the Indian Penal Code is that according to him the ambit of the definition of the word "public servant" finding place in section 21 of the Indian Penal Code was extended by provisions of section 161 of the Maharashtra Co-operative Societies Act. Section 161 of the Maharashtra Co-operative Societies Act is more or less a prototype of section 161 of Indian Penal Code. The said section 161 of the Societies Act also makes receipt of illegal gratification by a public servant an offence. Section 161 of the Co-operative Socieites Act no doubt enlarges and extends the category of public servant contemplated by section 21 of Indian Penal Code in that certain additional officers are included by said section 161 of the Societies Act within the ambit of section 21 of the Indian Penal Code. So far as the Registrar of the societies and the Administrator of the society are concerned, they are deemed to be public servant within the meaning of section 21 of Indian Penal Code. Evidently, we are not concerned with those officers. However section 161 also provides that all those persons who are defined as officers within the meaning of section 2(20) of the Co-operative Societies Act would also be public servants. Turning to section 2(20) of the Maharashtra Co-operative Societies Act 1960, the definition or the word "officer" contained in the said provision is as follows :--- "Officer means a person elected if appointed by a society to any office of such society according to its bye-laws; and includes a chairman, vice-chairman, president, vice-president, managing director, manager, secretary, treasurer, members of the committee and any other person elected or appointed under this Act, the rules or the bye-laws, to give directions in regard to the business of such society;" The learned Judge has taken the view that the accused is a person appointed under the Act or rules or bye-laws of the Co-operative Sugar Factory and hence he is an officer within the meaning of section 2(20) of the Maharashtra Co-operative Societies Act and consequently a public servant within the meaning of section 21 of Indian Penal Code. 9. To my mind the above mentioned view of the learned Judge cannot be sustained. 9. To my mind the above mentioned view of the learned Judge cannot be sustained. In the first place the officer contemplated by section 2(20) of the Societies Act, must be a person appointed under the Act, or the rules or bye-laws. Every employee of the society cannot be said to have been appointed under the co-operative Societies Act or under the rules framed under the Act or under the bye-laws made by the society under the Act. If that was to be the position it was unnecessary for the Legislature to provide that a person appointed under the Act or under the rules or under the bye-laws would be a public servant. A simple provision that every employee of the society would be a public servant would be enough for the purpose of bringing about such effect. No doubt the bye-laws of the society gives certain powers to the society to employ its staff. But that would not mean that the staff is appointed under the bye-laws. The distinction is well recognised that the appointment made under the Act is very much different from the appointment made by virtue of the powers delegated under the Act. Thus the secretary of the society us appointed under the act and he is no doubt made a public servant but not an office secretary who is only a member of the general staff of the society. However, in conceivable cases, even an office secretary may become a public servant by virtue of the provisions of said section 161 read with section 2(20) of the Societies Act. For example an office secretary may be appointed under the bye-laws. If the bye-laws provides that the society shall appoint an office secretary such office secretary may perhaps be a person appointed under the bye-laws and as such might be a public servant. But every employee of the society could not be said to be public servant in that absence of any provisions of the bye-laws providing for his specific appointment. 10. This position is further made clear by virtue of the duties of such officer. It is not enough that the person should be appointed under the bye-laws. It is necessary that he should have been appointed to give direction in regard to the business of the society. 10. This position is further made clear by virtue of the duties of such officer. It is not enough that the person should be appointed under the bye-laws. It is necessary that he should have been appointed to give direction in regard to the business of the society. The Managing Director of the society, for instance is appointed under the bye-laws; his appointment is with a view to get direction from him in connection with the business of the society. A member of the Managing Committee is elected under the Act. His election is made so that he would give directions to the society in connection with its business. An ordinary employee of the society could never be considered to be appointed for the purpose of giving direction in regard to the business of the society. As a matter of fact he received directions from the officers concerned such as Managing Director or the Chairman or the secretary of the society. Whichever way we may look, it is impossible to subscribe to the view that the employee such as the present accused could be said to be an officer of the society within the meaning of section 2(20) of the Co-operative Societies Act. If this is the position then the provisions of section 161 of the Co-operative Socieites Act could not come to play at all and the employed such as the accused could not be said to be a public servant within the meaning of section 21 of the Indian Penal Code as well. 11. I must mention that Mr. Damle was extremely fiar in making the statement before the Court that though this position was against the case of the prosecution, yet the correctness of the above legal position was unassailable. He was fair enough to concede that a person such as accused who was a mere employee of the society could not be said to be an officer of the society within the meaning of section 2(20) of the Societies act. I must state in fairness that Mr. He was fair enough to concede that a person such as accused who was a mere employee of the society could not be said to be an officer of the society within the meaning of section 2(20) of the Societies act. I must state in fairness that Mr. Damle not only did not seriously dispute the correctness of the above legal position, but also stated further that if the accused could not be held to be a public servant within the contemplation of section 2(20) and section 161 of the Co-operative Societies Act, then the provisions of section 161 of the Indian Penal Code and sections 5(1)(d) read with section 5(2) of the Prevention of Corruption Act would also not come into play and hence the order of conviction and sentence passed against the accused could not be sustained. 12. In this view of the legal position, it is unnecessary for me to examine the evidence led by the prosecution and the accused and to consider whether the facts alleged by the prosecution were fully established or not. I may however state here that after examining the entire evidence I was not satisfied that the prosecution had brought home the offence against the accused. I must state here that the entire evidence was fully discussed and argued by both the learned Counsel. I was however not at all satisfied that the learned Special Judge was justified in discarding the evidence of either Kamal or of Kale. To my mind the evidence of Kale sufficiently established the fact that there was monetary dealing between the accused and the said Devkar. If that was so, there is no reason why the case of the accused that a sum of Rs. 1200/- was demanded by Devkar from the accused as temporary hand loan should be disbelieved. The learned Judge disbelieved the accused on the ground that Devkar was a person in affluent circumstances. What the learned Judge has lost sight of that there is evidence to prove that Devkar had taken an handloan of a sum of Rs. 50/- from the accused. This is evident from the chit, Ex. 43, which is written by Devkar to the accused under his own signature. Devkar, no doubt, denied his signature on the said chit. What the learned Judge has lost sight of that there is evidence to prove that Devkar had taken an handloan of a sum of Rs. 50/- from the accused. This is evident from the chit, Ex. 43, which is written by Devkar to the accused under his own signature. Devkar, no doubt, denied his signature on the said chit. But the fact that the signature was that of Devkar himself has been fully proved not only by accused but also by D.W. Kale in whose presence the chit was written and signed by Devkar. Moreover I myself compared the signature on the said chit Ex. 43, with the admitted signature of Devkar on the F.I.R. Ex. 14 dated 10-12-1975. The signature is of such type that it is impossible to forge the same and the two signatures are fully identical which fact is perceptible to even a naked eye. I must state that it was not possible even for the learned Public Prosecutor to deny the correctness of this factual position. This clearly means two things viz. that :--- a) there were money dealings between Devkar on the one hand and accused on the other as alleged by the accused. b) Devkar deposed a blatant flasehood to the Court when he denied his signature at the foot of chit Exhibit 43. 13. The question then arises as to whether the accused had proved the fact that he had in fact paid a sum of Rs. 1200/- to Devkar. His own evidence in that behalf is fully corroborated by the evidence of Kamal Narayan Bharilal, D.W. 3, who is running the canteen in the campus of Gangapur Sugar Factory. He has stated that in his presence on certain date the accused had paid a sum of Rs. 1200/- to Devkar in 12 currency notes of Rs. 100/- each. He no doubt stated that he had seen such payments only casually. The learned Judge disbelieved him because the witness could not say as to which other customer visited his hotel on a particular day at a particular time. 1200/- to Devkar in 12 currency notes of Rs. 100/- each. He no doubt stated that he had seen such payments only casually. The learned Judge disbelieved him because the witness could not say as to which other customer visited his hotel on a particular day at a particular time. But what the learned Judge has lost sight of is that both the accused as well as Devkar were important persons so far as the society was concerned and the fact that an officer such as an Engineer working in the society was paying money to an important person such as Devkar and particularly a sum of Rs. 1200/- would be quite memorable a fact and incident for the witness. In his connection it is to be noted that neither Kamal, nor Kale could be said to be labouring under any kind of influence of the accused. It is admitted that the services of the accused have been terminated by the society immediately after the incident with effect from 15-12-1975. Neither kale nor Kamal has therefore, any reason to give any false evidence in favour of the accused at the time of the trial. Nothing is brought from the evidence to show that they had any particular reason to give false evidence in favour of the accused. Kamal continues to be the canteen contractor of the society and he would rather give evidence in favour of the society who has dismissed the accused. If at all he wanted to give false evidence, he would give in favour of the society, who has dismissed the accused rather than give false evidence in support of the accused who has been removed from service by the society. The same reasoning would apply to Kale as well. 14. Mr. Damle contended that the evidence of Kamal that he saw accused giving 12 currency notes to Devkar was believed by the fact that on his own showing the accused did not have 12 currency notes, each of the denomination of one hundred, with him on the relevant day. In this connection Mr. Govilkar took me through the evidence of the accused wherein he has stated that he had brought a sum of Rs. 550/- from his house and that he had received a salary of Rs. 650/- from the society on that day. Mr. In this connection Mr. Govilkar took me through the evidence of the accused wherein he has stated that he had brought a sum of Rs. 550/- from his house and that he had received a salary of Rs. 650/- from the society on that day. Mr. Damle therefore contended that on his own showing the accused would be having at the most 11, hundred rupees notes an could not have 12, hundred rupees notes. Mr. Govilkar however invited my attention to the fact that according to the accused his monthly salary was Rs. 965/-. He also pointed out that according to the accused he was getting Rs. 700/- per month as his monthly emoluments. He stated that the statement of the accused in para 15 of his evidence that he got Rs. 650/- towards his salary was made in the context that out of this amount paid by the accuse, Rs. 650/- was something out of the salary that he received on that day and Rs. 550/- brought by him from home. To my mind it will be safe to accept the construction of the evidence of the accused as suggested by Mr. Govilkar. If this was not so it is difficult to reconcile the statement of the accused in para 15 with his own statement in para 12 wherein he has clearly stated that his monthly salary was Rs. 700/-. In any event it will not be proper to disbelieve the evidence of the accused on such slender discrepancy. 15. As stated above, I have already held that the accused cannot be considered to be a public servant within the meaning of section 161 of the Indian Penal Code. It is, therefore, unnecessary for me to discuss the entire evidence in more details so far as the facts alleged against the accused are concerned. The above discussion is enough to show that to my mind it is not possible to accept the prosecution evidence to hold that the accused had demanded any illegal gratification from Devkar, assuming that he was public servant within the meaning of section 161 of the Indian Penal Code. 16. There is yet another reason for my not accepting the evidence of the prosecution. In the instant case admittedly accused had done every thing in his hand for the purpose of enabling Devkar to receive the final payments from the society. 16. There is yet another reason for my not accepting the evidence of the prosecution. In the instant case admittedly accused had done every thing in his hand for the purpose of enabling Devkar to receive the final payments from the society. If at all the accused wanted to receive the monies, he would have asked for the amount before the final bill was paid by the society to Devkar. Admittedly Devkars contract with the society had completely come to an end when he received the final payment on 9th December, 1975. Admittedly he had received payment for the running bills previously. Mr. Govilkars contention that if at all the accused wanted to receive the illegal gratification from Devkar he would have demanded and received it before the final bill was sanctioned by the accused and was received by Devkar has got to be accepted. Moreover, there is the further question as to whether the illegal gratification would be considered to be reward asked for by the accused within the meaning of section 161 of the Indian Penal Code. It is not the prosecution case that accused had asked for reward. According to the prosecution, accused has asked for a sum of Rs. 1200/- as motive for sanctioning bill. If he asked for it as motive it is unlikely that he would demand if after the bill was sanctioned and paid. To my mind all this goes to show that it is really speaking the accused who can be said to have made good his case rather than prosecution. 17. For the reasons stated above, the appeal has got to be allowed. 18. The order of conviction and sentence passed by the learned Judge is set aside. The accused is acquitted of the offence with which he has been charged. The bail bond stands cancelled. The fine, if paid, should be refunded to the accused. Appeal allowed. -----