- (1.)THIS is an appeal preferred by Krishna Biharilal a former clerk in the office of the High Court, Gwalior, who has been convicted under Section 161, I. P. C. and sentenced to one year's rigorous imprisonment by the learned Special Judge, Gwalior. The State has preferred an appeal against the order of the learned Special Judge under the impression that the learned Judge has constructively acquitted the appellant under Section 5 (2), Prevention of Corruption Act. A charge had been framed against Krishna Biharilal appellant under both these sections.
(2.)THE case for the prosecution is that one Ismail Khan P. W. 6, paid a bribe of Rs. 110 to the appellant for the purpose of expediting the appeal against his daughter Zamila in file C. S. A. No. 46 of 1951 (Fazil Khan v. Zamila) which was at that time pending in the High Court. On behalf of Zamila in that file the witness Ismail had engaged two Vakils and according to his own statement made in Special Judge's Court he had paid Rs. 26 to Mr. Ali Mazhar and had engaged Mr. Anand Bihari Mishra on Rs. 15 but had paid Rs. 10 only as he could not pay the remaining Rs. 5 to Mr. Mishra. Now the sum of Rs. 110 alleged to have been paid to the appellant is made up of several items. Ismail Khan said that he could not locate where the file was, so he went to the High Court office and paid the appellant Rs. 2 for inquiry. The appellant asked him to come after three months and had demanded Rs. 100, so he came first time with Rs. 90 after three months, and gave that sum to the appellant. Then Ismail sent another Rs. 10 by Money Order at the home address of the appellant and this item is well proved as on 184-52 the Money Order of Rs. 10 had been received by the appellant Krishna Biharilal which was addressed to his home address. It is alleged by Ismail Khan that he again came to Lashkar and then paid Rs. 10 for expediting the disposal of the file. As the file was not expedited he submitted an application to the High Court which led to the arrest and prosecution of the appellant and which ultimately resulted in this conviction.
(3.)NOW the application filed by Ismail P. W. 6 in the High Court which had initiated the prosecution has not been produced by the prosecution in this case and there is no doubt that this application was important. Ismail contended in that application that he had mentioned that Rs. 110 were paid as bribe to the appellant. On behalf of defence it was argued that in that application it was mentioned that Rs. 110 were given to the appellant, for Court-fees and not as bribe for any work connected with the case. In my opinion it was the duty of the prosecution to have produced the original application. Of course, a copy was produced ? in the trial Court and from that copy it is clear that the allegations of Ismail P. W. 6 were to the effect that the appellant had demanded Rs. 110 for Court-fees. This copy has been produced by the Prosecution and surely they cannot now turn round and say that this copy produced by them should not be taken into consideration. Our attention was also directed to the statement of Sardarsingh P. W. 7 who is a petition writer in the District Court of Bhind and who had written the original application to the High Court on behalf of Ismail Khan P. W. 3, He also deposes that in that application it was mentioned that the appellant had taken Rs. 110 for the purpose of paying Court-fees. Surely if that was the case it was a case of cheating and not an offence under Section 161, I. P. C. Now according to Ismail Khan's statement it is clear that he sent Rs. 10 by Money Order to the appellant, paid Rs. 90 to the appellant in cash and then paid Rs. 10 in cash again. It must be mentioned here that Ismail was 'challaned' in this case and was subsequently tendered pardon and made approver and then brought as a prosecution witness in this case. So his statement must be corroborated in material particulars. It might be sufficient to say that the statement about cash payment of Rs. 90 on the one occasion and Rs. 10 on another occasion had not been corroborated in material particulars in this case, and, so the allegation of these payments has to be eliminated from consideration,
;