Santhosh, J.- The appellant Dattatreya Gangadhar Samant in Criminal Appeal No. 331 of 1965 was the first accused in Special Case No. 5 of 1961 on the file of the Special Judge, Belgaum. He and the second accused Kashinath Krishna Bapat were charged with having committed offences under section 161 of the Indian Penal Code and section 5 (2) of the Prevention of Corruption Act, read with section 34 of the Indian Penal Code. The appellant (accused-1) was convicted by the learned Special Judge of the offence under section 161, Indian Penal Code and sentenced to one year’s rigorous imprisonment and a fine of Rs. 200, in default, to suffer rigorous imprisonment for three months. In Cr. A. No. 331 of 1965. the appellant questions the correctness and legality of the said conviction and sentence. Accused 2, Kashinath Krishna Bapat has been acquitted by the learned Special Judge of both the charges. Criminal Appeal No. 4 of 1966 is the appeal filed by the State questioning the correctness of the acquittal of the second accused of both the charges and the acquittal of accused 1 of the charge under section 5(2) of the Prevention of Corruption Act. When Criminal Appeal No. 4 of 1966 came up for admission, this Court admitted the appeal as against the second accused only and rejected the appeal filed by the State against the acquittal of accused 1 of the charge under section 5(2) of the Prevention of Corruption Act. Hence the question of acquittal of accused 1 of the charge under section 5(2) of the Prevention of Corruption Act is not before us. Accused 1 was employed as a Head Clerk-cum-Accountant in Belgaum Municipal School Board. Accused 2 was a primary school teacher serving under the same Municipal School Board. The case of the prosecution is that accused 1 was operating through accused 2 for the purpose of demanding and collecting bribes from school teachers for getting things done by the Administrative Officer (A.O.) of the School Board, Belgaum. P.W. 1, Appasaheb was serving in the year 1960 in School No. 12 as Headmaster. On 19th July, 1960, he was transferred to School No. 15. P.W. 1, Appasaheb was serving in the year 1960 in School No. 12 as Headmaster. On 19th July, 1960, he was transferred to School No. 15. As School No. 15 was about 1½ miles from his house and as P.W. 1 Appasaheb was a disabled person having lost the use of his right hand and left leg due to rheumatic trouble, he was very much upset by his transfer. The prosecution case is that accused 2 thereafter approached P.W. 1 Appasaheb and suggested that if he paid some money to accused 1, this transfer could be cancelled. Accused 2 arranged a meeting of P.W. 1, Appasaheb with accused 1 in the backyard of the Municipal School Board Office on 22nd July, 1960. Accused I demanded Rs. 100 for getting the transfer cancelled. P.W. 1, Appasaheb pleaded his inability to pay this big amount. Thereupon accused 1 made an alternative proposal that if he paid Rs. 50 he would get him transferred to School No. 7, which was near his house, as Assistant Teacher. P.W. 1, Appasaheb agreed to this proposal. Then accused 1 told him that he could pay this amount to him through. accused 2. He also asked P.W. 1, Appasaheb to send an application enclosing a medical certificate. On 2nd August, 1960, when P.W. 1, Appasaheb received his pay, he paid Rs. 25 to accused 2 by way of first instalment, requesting him to wait for some time for the second instalment. Then, on 16th August, 1960, P.W. 1, Appasaheb made the second payment of Rs. 15 to accused 2 requesting him for some more time for making payment of the remaining amount of Rs. 10. After the payment of the second instalment, P.W. 1, Appasaheb received the order transferring him to School No. 7 from School No. 15. Thereafter, accused 2 made pressing demands for the payment of the remaining amount of Rs. 10. On 8th November, 1960, P.W. 1, Appasaheb wrote a note, Exhibit 66, to accused 2, to come and collect the sum of Rs. 10 that was due to be paid to accused 1. Thereafter, on 9th November, 1960, P.W. 1, Appasaheb approached P.W. 36, Keshav, who was the Sub-Inspector attached to Anti-Corruption Department. P.W. 36, prosecuting Sub-Inspector Keshav got a complaint, Exhibit 67, from Appasaheb and thereafter, applied to the Judicial Magistrate, First Class, Belgaum Taluka, for sanction for laying a trap. 10 that was due to be paid to accused 1. Thereafter, on 9th November, 1960, P.W. 1, Appasaheb approached P.W. 36, Keshav, who was the Sub-Inspector attached to Anti-Corruption Department. P.W. 36, prosecuting Sub-Inspector Keshav got a complaint, Exhibit 67, from Appasaheb and thereafter, applied to the Judicial Magistrate, First Class, Belgaum Taluka, for sanction for laying a trap. The learned Magistrate gave the necessary sanction by Exhibit 182-A. Then the Prosecuting Sub-Inspector sent for two Panchas and in their presence P.W. 1, Appasaheb produced currency notes of the amount of Rs. 10, the numbers of which were noted in the Panchanama, Exhibit 68, and phenolphthalein powder was also applied to those notes. Then the Panchas and the Prosecuting Sub-Inspector followed P.W. 1, Appasaheb to his school. At about 2-15 p.m. accused 2 came to the school and entered into P.W. 1 Appasaheb’s class room and closed the door behind him. The Panch witness P.W. 2 Jathar was standing on the verandah and saw, through the window, P.W. 1, Appasaheb handing over the currency notes to accused 2. P.W. 2, Jathar then gave the necessary signal to the Sub-Inspector. As accused 2 came out of the class room, the Sub-Inspector detained him and disclosed his identity. When questioned, accused 2 became confused and stated that he accepted Rs. 10 from P.W. 1, Appasaheb on behalf of accused 1. Then accused 2 produced the currency notes from the upper pocket of his coat. The numbers of the currency notes were checked and they tallied with the numbers already recorded in the Panchanama, Exhibit 68. At the time when the pockets of the second accused were searched, Exhibit 66, the chit written by P.W. 1, Appasaheb to accused 2, dropped out of his pocket. All these were seized under the Panchanama, Exhibit 72. Thereafter, accused 2, showed his willingness to make a confession. He was sent before the Sub-Divisional Magistrate, Belgaum. Exhibit 191 is the statement made by accused 2 before the learned Magistrate under section 164 of the Code of Criminal Procedure on 11th November, 1960. The Sub-Inspector also applied to the Judicial Magistrate, I First Class, Belgaum Taluka, requesting him to grant permission to investigate the offence of acceptance of bribe as per section 6 of the Prevention of Corruption Act and the learned Magistrate, by his order, Exhibit 183-K, granted the requisite permission. The Sub-Inspector also applied to the Judicial Magistrate, I First Class, Belgaum Taluka, requesting him to grant permission to investigate the offence of acceptance of bribe as per section 6 of the Prevention of Corruption Act and the learned Magistrate, by his order, Exhibit 183-K, granted the requisite permission. Thereafter, a charge-sheet was filed against the accused as mentioned above before the Special Judge, Belgaum. Before the evidence was recorded, the Public Prosecutor applied to the Court seeking for an order for re-investigation of the case by an officer not below the rank of a Deputy Superintendent of Police. The Court granted the requisite permission. A revision was filed against this order and it was dismissed by the High Court. After the case was re-investigated afresh by P.W. 37, Deputy Superintendent, Kulkarni, the case was taken up for trial and the evidence recorded. The prosecution examined 38 witnesses in support of the charge. The accused did not examine any witness on their behalf. Both the accused denied their guilt. The plea of accused No. 1 was, because he had come in clash with a group of teachers headed by one Kadabi and Barde, they have set up accused 2 as a tool and foisted this false case against him. Accused 2 admitted having received the various amounts on behalf of accused 1 from P.W. 1, Appasaheb for getting him transferred from School No. 15 to School No. 7. He pleaded that accused 1 had given him the job and he was under an obligation to him. Taking advantage of this obligation, accused 1 made him operate as his tool to collect money for him. The learned Sessions Judge did not rightly make use of the evidence let in by the prosecution under section 15 of the Indian Evidence Act, to prove the several instances where accused 1 had taken amounts from some other persons on the ground that they were irrelevant so far as this charge is concerned. He also held that Exhibit 191, the statement of accused 2 recorded under section 164, Criminal Procedure Code, was not a confession and did not make use of the same. He also held that Exhibit 191, the statement of accused 2 recorded under section 164, Criminal Procedure Code, was not a confession and did not make use of the same. The learned Special Judge held that the charge against accused 1 under section 5(2) of the Prevention of Corruption Act was not made out, but the charge under section 161, Indian Penal Code, has been fully made out against him The learned Judge also held that the prosecution has not proved any prior consert or agreement between accused 1 and 2 as required under section 34, Indian Penal Code. He held, accused 2 was only a messenger and a mere tool in the hands of accused 1 and accused 1 was the sole beneficiary of the amounts collected from P.W. 1 Appasaheb, and acquitted accused 2 of both the offences with which he was charged. The evidence against accused 1 on which the learned Special Judge has relied, consists of the following: (1) Evidence of P.W. 1; (2) Corroborative evidence of P.W. 3. Ambewadkar in regard to the meeting between accused 1 and 2 and P.W. 1, Appasaheb; (3) Chit, Exhibit 66, written by P.W. 1, Appasaheb to accused 2 to take Rs. 10 due to accused 1; (4) Evidence relating to trap and the recovery of Rs. 10 from accused 2. Before we discuss the evidence, it may be convenient to deal with the contention “that the investigation conducted in the case was illegal and the permission granted by the learned Magistrate to P.W. 36, Prosecuting Sub-Inspector Keshav to investigate the case was legally defective. The order passed by the learned Magistrate is not a speaking order. He had not applied his mind while granting the said permission. The further investigation conducted by P.W. 37, Deputy Superintendent of Police, Kulkarni, does not cure the previous illegalities committed by the Prosecuting Sub-Inspector during the investigation. The learned Special Judge has held that the previous illegalities committed by the Prosecuting Sub-Inspector were cured by the subsequent investigation by the Deputy Superintendent of Police. He has also held that the trial has not become vitiated by these defects and that there was no want of bona fides on the part of the Prosecuting Sub-Inspector and the said Sub-Inspector has not put up any false case against the accused as contended by the defence. He has also held that the trial has not become vitiated by these defects and that there was no want of bona fides on the part of the Prosecuting Sub-Inspector and the said Sub-Inspector has not put up any false case against the accused as contended by the defence. It is well settled that illegality in the investigation does not vitiate the result of the trial unless it has resulted in miscarriage of justice. In Rishbud v. State of Delhi1, at paragraph 9 of the judgment, their Lordships of the Supreme Court have stated as follows: "If, therefore, cognisance is in fact taken, on a police report vitiated by the breach of a mandatory provision relating to investigation, there can be no doubt that the result of the trial which follows it cannot be set aside unless the illegality in the investigation can be shown to have brought about a miscarriage of justice. That an illegality committed in the course of investigation does not effect the competence and the jurisdiction of the Court for trial is well settled as appears from the cases in Prabhu v. Emperor2and Lumbhardar Kutahi v. The King3. Further, in paragraph 10, their Lordships have observed as follows: “It does not follow, however, that the invalidity of the investigation is to be completely ignored by the Court during trial. When the breach of such a mandatory provision is brought to the knowledge of the Court at a sufficiently early stage, the Court, while not declining cognizance, will have to take the necessary steps to get the illegality cured and the defect rectified, by ordering such reinvestigation as the circumstances of an individual case may call for.” This view has again been reiterated by the Supreme Court, in Munilal v. State of Uttar Pradesh1. Their Lordships have held that section 5-A of the Prevention of Corruption Act is mandatory and not directory and an investigation conducted inviolation thereof is illegal. If however there was irregular investigation and section 5-A was not complied with in substance, the trial could not be held to be illegal unless it was shown that miscarriage of justice had been caused on account of the illegal investigation. It has not been argued or shown that the initial defect in the investigation has in any way resulted in the miscarriage of justice in this case. It has not been argued or shown that the initial defect in the investigation has in any way resulted in the miscarriage of justice in this case. Taking first the evidence of P.W. 1, Appasaheb, he has stated how he was transferred from School No. 12 to School No. 15 and how accused 2 approached him and arranged a meeting between him and accused 1. He has stated how accused 1 demanded Rs. 100 and on his expressing his inability to pay this amount, accused 1 came out with an alternative suggestion that he would get him transferred to School No. 7 if he paid Rs. 50. P.W. 1 has also stated how he had paid Rs. 25 and Rs. 15 into the hands of accused 2 to be paid over to accused 1. P.W. 1, Appasaheb has also stated how, thereafter, he gave a complaint to P.W. 36, Prosecuting Sub-Inspector Keshav and as per the trap laid, he handed over Rs. 10 to accused and how it was recovered from the pocket of accused 2. It is contended by Sri Shamanna, learned Counsel appearing on behalf of the first accused that the evidence of P.W. 1, Appasaheb is tainted evidence and he has got a grouse against accused 1 and as such it is very unsafe to rely on his evidence. The learned Special Judge, bearing in mind the criticism that P.W. 1, Appasaheb is the complainant and a partisan witness, has elaborately dealt with the criticism levelled against the evidence of P.W. 1. He has held that the various documents,. Exhibits 61 to 64 produced by P.W. 1 Appasaheb corroborate his version and show that he is speaking the truth. After going through the evidence of P.W. 1 carefully, we have no hesitation in agreeing with the learned Special Judge that the evidence given by P.W. 1, Appasaheb is true. The evidence of P.W. 1, Appasaheb is corroborated by the evidence of an independent witness P.W. 3 Ambawadkar, who is the Headmaster of School No. 17 at Belgaum. He has stated that on 22nd July, 1960 he had gone to the office of the Administrative Officer at about 2 p.m. to make some enquiries in connection with the school and in the backyard of the office he found P.W. 1, Appasaheb talking to accused 1 and accused 2 was also present. He has stated that on 22nd July, 1960 he had gone to the office of the Administrative Officer at about 2 p.m. to make some enquiries in connection with the school and in the backyard of the office he found P.W. 1, Appasaheb talking to accused 1 and accused 2 was also present. Accused 1 demanded from P.W. 1, Appasaheb a sum of Rs. 50 for getting him transferred to School No. 7. P.W. 1, Appasaheb agreed to pay the said sum. Then accused 1 asked P.W. 1, Appasaheb to hand over the money to accused 2 on his behalf. No ill-will by P.W. 3, Ambewadkar against the accused has been made out. There is absolutely no reason why he should come and depose falsely against the accused. That P.W. 3, Ambewadkar was present at the meeting between accused-1 and P.W. 1 Appasaheb is mentioned in Exhibit 67, the complaint given by P.W. 1 to P.W. 36 Prosecuting Sub-Inspector Keshav. The learned Special Judge had the benefit of seeing this witness in the box and he has believed his evidence. It has not been shown why we should reject his evidence. Exhibit 66 is the note sent by P.W. 1, Appasaheb to accused 2 on 8th November, 1960. We have already pointed out that this note fell out from the pocket of accused 2 at the time when P.W. 36. Prosecuting Sub-Inspector Keshav searched the pocket of accused 2 after the receipt of the sum of Rs. 10 by accused 2 from P.W. 1, Appasaheb. Exhibit 66 specifically states as follows: “I have called you today at 2 p.m. to give Rs. 10 of Shri Samant Saheb.” It may be mentioned that the name of the first accused is Dattatreya Gangadhar Samant. Exhibit 66 fully corroborates and proves the truth of the version of P.W. 1, Appasaheb that the sum paid by him to accused 2 was in fact to be paid to accused 1. The version put forward by accused 1 that the Samant Saheb referred to in Exhibit 66, was his father and that accused 2 had taken as loan Rs. 25 from accused 1’s father and handed over this amount to P.W. 1 Appasaheb, his been rightly rejected by the learned Judge, as false. The evidence relating to the trap and recovery of Rs. 25 from accused 1’s father and handed over this amount to P.W. 1 Appasaheb, his been rightly rejected by the learned Judge, as false. The evidence relating to the trap and recovery of Rs. 10 from the pocket of accused 2, is spoken to by P.W. 1 Appasaheb, P.W. 2 Jathar, P.W. 4 Headmaster Shivaram and P.W. 36 P.S.I. Keshav. There is absolutely no reason to disbelieve the evidence of these witnesses. P.W. 2 Jathar and P.W. 4 Shivaram are independent witnesses. It may be mentioned that P.W. 4 Shivaram is the Headmaster of a School. No ill-will or motive for them to depose falsely against the accused has been made out. The learned Special Judge has rightly believed the evidence of these witnesses. The next question to be considered is whether the charge under section 161, Indian Penal Code, has been made out against accused 1. It is not disputed that accused 1 was a public servant. The evidence discloses that he accepted gratification from P.W. 1 Appasaheb as a motive or reward for rendering or attempting to render assistance to P.W. 1 Appasaheb with another public servant. We have already pointed out that accused 1 was the Head Clerk-cum-Accountant of the Administrative Officer who was the authority to transfer school teachers. It was the function of accused 1 to put up notes to the Administrative Officer when questions of transfer came up before him. Though the charge of the complaint does not specify that accused 1 took money to influence the Administrative Officer, there can be no doubt that the person to be influenced was the Administrative Officer, the authority making the transfers of school teachers. In Mahesh Prasad v. State of Uttar Pradesh1, their Lordships of the Supreme Court have observed, at page 71, as follows: “To constitute an offence under this section, it is enough if the public servant who receives the money takes it by holding out that he will render assistance to the giver ‘with any other public servant’ and the given gives the money under that belief. It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. He may not even have intended to do what he holds himself out as capable of doing. He may accordingly be guilty of cheating. It may be that the receiver of the money is in fact not in a position to render such assistance and is even aware of it. He may not even have intended to do what he holds himself out as capable of doing. He may accordingly be guilty of cheating. Nonetheless he is guilty of the offence under section 161 of the Indian Penal Code.” Again, in paragraph 4, at page 72, their Lordships have observed as follows: “The next contention that has been raised is that the charge does not specify the particular public servant who was intended to be influenced by the appellant in consideration of his receiving the money. It is urged that section 161, Indian Penal Code, would not apply to such a case. It is suggested that the phrase ‘with any public servant’ in section 161, Indian Penal Code, must relate to a specified public servant. In the present case the evidence of the complainant and the finding of the High Court is that the appellant ‘purported to attempt rendering of a service to the complainant with another public servant, viz., the Head Clerk at Allahabad’. But even apart from such a finding there is nothing in the terms of section 161, Indian Penal Code, requiring that the public servant contemplated therein must be a specified public servant.” We have, therefore, no hesitation in agreeing with the learned Special Judge that the charge under section 161 of the Indian Penal Code has been established beyond all reasonable doubt against accused 1. We therefore confirm the conviction and sentence passed on him by the learned Special Judge for that offence. Taking next Criminal Appeal No. 4 of 1966 against accused 2, we agree with the learned Special Judge that the charges against accused 2 have not been proved. There is no satisfactory evidence that there was any prior concert or agreement or any pre-arranged plan between accused 1 and accused 2 in this case. Accused 2 seems to have acted as a sort of messenger on behalf of accused 1 for collecting money from P.W. 1 Appasaheb. It is not the case of the prosecution that any portion of this amount went into the pocket of accused 2. Accused 2 seems to have acted as a sort of messenger on behalf of accused 1 for collecting money from P.W. 1 Appasaheb. It is not the case of the prosecution that any portion of this amount went into the pocket of accused 2. Accused 2 has stated that accused 1 gave him his appointment and he was under an obligation to him and being weighed down by this obligation, he acted as a messenger between accused 1 and P.W. 1 Appasaheb. Sri Dayanand, learned Counsel appearing on behalf of the State has contended, even though the charge against accused 2 was one under section 34, Indian Penal Code, it is possible for this Court to convict him for the offence of abetment. He has cited before us a decision of the Supreme Court in Ramaswamy Nadar v. State of Madras1, in support of the said argument. Even assuming the Appellate Court has got the power to do so, we may point out that no charge of abetment has been framed against accused 2. This aspect of the case has not been urged by the prosecution in the trial Court. As there was no charge and no argument was addressed before him the learned Special Judge has not expressed any opinion on this question. This Court has not got the benefit of the views of the learned Special Judge on this aspect of the case. We may further point out that even in the appeal memo. filed by the State before this Court, no ground has been raised that accused 2 is guilty of abetment. We are of opinion that it is not open to the prosecution in the circumstances mentioned above to spring a surprise on accused 2. If we permit the prosecution to do so at this late stage in the appeal, the accused would undoubtedly be gravely prejudiced. For the reasons mentioned above, we are not prepared to allow Sri Dayanand to argue this point without even raising the same in the grounds of appeal. We, therefore, agree with the learned Special Judge that no case has been made out against accused 2. It is not possible to say that the decision of the learned Special Judge, so far as accused 2 is concerned, is either erroneous or unreasonable. We, therefore, agree with the learned Special Judge that no case has been made out against accused 2. It is not possible to say that the decision of the learned Special Judge, so far as accused 2 is concerned, is either erroneous or unreasonable. In the result, there is no merit in Criminal Appeal No. 331 of 1965 and Criminal Appeal No. 4 of 1966 and both of them are dismissed. S.V.S. ----- Appeals dismissed.