- (1.) This appeal, which has come before us on special leave, is directed against a Judgment of the High court of Travancore-Cochin dated July 16, 1951 passed in Criminal Appeal No.194 of 1950, by which the learned Judges set aside an order of acquittal made in favour of the appellant by the Special Magistrate, Trichur, in C.C.No.1 of l125 M.E. and converting it into one of conviction under S. 389, Cochin Penal Code (corresponding to S. 409, Indian Penal Code ) sentenced him to undergo rigorous imprisonment for a period of one year and pay a fine of Rs. 1,000; in default of payment of fine, he was to suffer rigorous imprisonment for a further term of four months.
(2.) It may be mentioned here that the appellant, who has been described as accused No. 1 in the judgments of both the courts below, was tried along with two other persons as his co-accused by the Special Magistrate of Trichur, who made an order of acquittal in favour of all of them. The State Government preferred an appeal to the High Court challenging the property of the entire order . The High Court dismissed the appeal so far as it related to accused Nos. 2 and 3 and reversed the judgment of the original court in regard to accused No. 1, who is the sole appellant before us.
(3.) The material facts necessary for purposes of the present appeal may be briefly narrated as follows. The appellant and accused No. 2 Ramachandra Iyer were appointed joint receivers of a textile business, known as Sitaram Spinning and Weaving Mills Limited (hereinafter referred to as the mills), situated at Trichur, under an order of the High Court of Cochin passed in O.S.No.2 of l123 M.E. The order of appointment was made on13-2-1948 and it conferred on the receivers all powers of management according to the Articles of Association of the Mil1s. They were to keep regular accounts and submit monthly statements of receipts and disbursements on the 10th day of every English calendar month. Shortly before the date that this order was passed, the control on textile goods that existed since 1943 was withdrawn by the Government. The control of prices however was continued till the end of April 1948 and after that, there was, strictly speaking, no fixed rates at which textile goods were to be sold compulsorily by the manufacturers. But there was, was, what has been described as a gentleman's agreement, arrived at by the members of the South Indian Mill Owners' Association, according to which different prices were fixed for different kinds of cloth and the old practice of stamping each piece of cloth with the date of its production and also the ex-mill and retail prices still continued. During the control period the distribution was effected through certain quota holders, each one of whom had a number of bales allotted to him as his quota. It appears that after the control was withdrawn, these quota-holders asserted a sort of legal right to continue as agents for distribution of the mill products so long as the mills remained under Court management. The High Court, however, passed an order to the effect that the existing contracts had ceased to be in force and the receivers could ignore them altogether and enter into fresh arrangements with other persons which, in their opinion, would best serve the interests of the institution. P. W. 1 Vaidyanath Iyer, upon whose allegations the entire prosecution story rests, was one such quota holder. He was a share-holder of the company and was running, with other partners, a cloth business under the name and style of 'Swadeshi Piece-Goods Depot' at Trichur. for his Trichur shop he was getting 40 bales of cloth as his quota per month and it is admitted that he got this quantity both for February and March, 1948. He did not get anything for April and the prosecution story is that he met the first accused and had a talk with him about this matter. It is alleged that the first accused told him: "I shall give you 100 bales. You must give me Rs.10,000 over and above the price as premium The amount must be paid at once." P. W. 1 agreed; and on 24-4-1948 he paid the appellant sum of Rs.9,000 and obtained an allotment letter (Ex. A) for 50 bales of cloth signed by the appellant. On the same day P.W.1 paid to the cashier of the mills Rs. 33,339 annas odd, which was the price for the 50 bales of cloth, computed according to the stamped rates and took delivery of the goods. The further case of the prosecution is that on being informed that the remaining 50 bales were ready at the mills, he met the first accused at his house on the night of 11 -5-1948. There he was told that the extra amount, which he was to pay to accused No. 1, would be Rs.23,100 in all, the calculation being made on the basis of 26 per-cent. of the price for the first allotment of 50 bales and 50 per cent. for the second. Deducting the sum of Rs. 9,000 already paid by P.W.1, he was asked to pay the balance amounting to Rs. 14,100. P. W. 1 prayed for a little time, but as the accused refused to give him any, he eventually executed a promissory note for a sum of Rs. 15,000 in favour of one P. Namboodiri, a nominee of the appellant who has been examined as prosecution witness No 8 in this case. As the amount payable by P. W. 1 was Rs.14,100 whereas the hand note was executed for Rs.15,000, the appellant paid to P.W. 1 a sum of Rs. 900 in cash. P.W.1 then went to the mills accompanied by the first accused and arranged to take delivery of the goods. As 49 bales were only available an invoice was obtained for the same, bearing date 11-5-48. P.W. 1, it is said, found later on that the amount, which he was compelled to pay, was much larger than what the appellant had obtained from other merchants. On 14-7-1948 he addressed two letters (Exs. H and J), one of the first accused and the other to P.W. 8 in whose favour the hand note was executed and sent these letters to the Anchal (Post) Master, Arimboor for despatch, by registered post. The addressees were told by them letters that P.W.1 had learnt on enquiry that the first accused had received profits at different rates from other people, and that while he was prepared to pay him a sum of Rs.10,000 in all, that is to say a further sum of Rs. 1,000 in addition to Rs. 9,000 already paid, he should, in all fairness, get back the promissory note (Ex. C) for Rs. 15,000 that he was made to execute in favour of P.W. 8. On the day following, that is to say on 15-7-1948, he wrote a letter (Ex. K) to the Anchal Master, Arimboor, requesting the latter to keep the two letters with him till the writer met him in the afternoon and had talks with him regarding the matter. On or about 17-4-1948, the Commissioner of Police. Trichur, received an anonymous petition stating that the first accused was giving bales of cloth only to those who paid him large sums of money by way of illegal gratification and P.W.1 was stated to be a person who had paid a cash sum of Rs. 10,000 and executed a promissory note in favour of P. W. 8. The Commissioner of Police sent this petition to the Deputy Commissioner for confidential enquiries. The Deputy commissioner examined P.W. 1 on 18-7-1948 and the statement made by the latter is Ex. II in the case. P.W. 1 made a further statement before the said officer on the 1st of August 1948 which has been marked Ex. III.;