J. L. Kapur J. - (1.) This appeal by special leave is directed against the judgment and order of the High Court of Assam. The appellant before us was tried for an offence under S. 165A of the Indian Penal Code for having abetted one Khalilur Rahman in the commission of an offence by the latter under S. 161, Indian Penal Code. Both the appellant and Khalilur Rahman were convicted of the offences with which they were charged and sentenced to one year's rigorous imprisonment. On appeal the High Court acquitted Khalilur Rahman but maintained the conviction and sentence of the appellant.
(2.) The facts of this appeal are that on May 9, 1952, the complainant Narendra Nath Brahma was taking two carts carrying 25 Mds. of paddy for sale to Billashipara- bazar along the path which runs by the side of the river Gauranga. When he had gone only a short distance he was stopped by the paddy-checking Inspector, khalilur Rahman, who was accompanied by the appellant and three others. Khalilur Rahman demanded Rs. 200 as bribe and threatened the complainant that unless the amount demanded was paid his cart and paddy would be seized. In this he was supported by the appellant and three others. The complainant expressed his inability to give that much amount but ultimately he agreed to pay Rs. 150. He borrowed Rs. 100 from one Surajmal Oswal out of which he offered Rs. 80 to Khalilur Rahman who asked him to hand them over to the appellant who counted the money and made it over to Khalilur Rahman. The complainant was also forced to execute a promissory note for a sum of Rs. 70 in favour of the appellant and he promised that the money would be paid the following day after the paddy was sold. The complainant learnt in the bazar that another person Happaram Rai had been similarly treated but he had only paid Rs. 15. On May 11, 1952, the complainant approached the appellant for the refund of his money and the return of his pronote and although the appellant promised he did not do so. The same day there was a meeting at Futkibari Middle English School where the Deputy Commissioner was present. The complainant presented to him a written complaint describing how he was forced to pay Rs. 80 and made to execute a pronote for Rs 70. Thereupon both Khalilur Rahman and the appellant were prosecuted, the former under S. 161, Indian Penal Code read with S. 5(2) of the Prevention of Corruption Act, 1947 (2 of 1947) and the latter under S. 165A and they were convicted and sentenced by the Special Judge as already stated.
(3.) The evidence of the complainant was that before Rs. 200 was demanded from him, the appellant and Khalilur Rahman "went aside and had some talks and coming together accused Khalilur Rahman demanded Rs. 200. He also stated "I told them that I managed to procure Rs. 80 somehow and I wanted to hand over to accused Khalilur Rahman who directed me to hand over to accused Faguna, saying he would take counting; accused Faguna counted the money and then made over the entire money to accused Khalilur Rahman saying that Rs. 80 would not do and I should execute a hand note for the balance of Rs. 70 promising to pay on the following Saturday." According to the complainant it was Khililur Rahman who tore out a page from his note book and handed over the same to the complainant and also lent him his fountain pen and after the pronote was executed both the pen and the pronote were handed over to Khalilur Rahman. The Special Judge found:- "I am fully convinced that a sum of Rs. 80 was realised from the complainant for forbearing from seizing of the paddy by the accused Khalilur Rahman, being helped and abetted by the accused Faguna Kanta Nath." He therefore convicted Khalilur Rahman under S. 161, Indian Penal Code but acquitted him of an offence under S. 5(2) of the Prevention of Corruption Act (Act 2 of 1947) and convicted the appellant for abetment of that offence. On appeal Deka J., held that from the complaint made by the complainant it was not clear that any payment was made to Khalilur Rahman. He said: "It may be that Khalilur Rahman was a patty to squeezing out some money from a dealer in paddy who tried to evade the law, but that falls far short of proving that he had accepted the money through Fagunakanta Nath as alleged now in Court." The learned Judge accepted the complainant's story that money was paid to the appellant but he was of the opinion that the evidence was not strong enough to prove payment to Khalilur Rahman and therefore he was "prepared to give the benefit of doubt to Khalilur Rahman and direct that his conviction under S. 161, Indian Penal Code be set aside". As to the appellant he was of the opinion that money was taken by him for payment to Khalilur Rahman as illegal gratification and whether he actually paid it to him or not the offence fell under S.165A and therefore he held the appellant guilty under that section. Thus according to the learned Judge the case against Khalilur Rahman was not proved an as money had been paid to the appellant he was guilty of abetment under S. 165A, Indian Penal Code. The appellant has come to this Court by special leave.;