Judgement

BOSE J.: The Appellant, S. N. Mehar a Camp Clerk in the office of the Divisional Engineer Telegraphs, Ajmer, has been convicted of offences under S. 420, Indian Penal Code and S. 5(2), Prevention of Corruption Act, 1947 (Act 2 of 1947). He was sentenced to two years rigorous imprisonment and to fine of Rs. 100 on each count. The substantive sentences are concurrent.

2. The substance of the offences for which he was convicted lay in obtaining sums to talling Rs. 23-12-0 from Government as T. A. for two journeys, one from Ajmer to Abu Road and the other from Ajmer to Reengus. The money represents the second class railway fare for these journeys. The allegation against him is that either he did not travel at all between those places on the relevant dates, or if he did, that he did not pay the fare.

3. He appealed to the Sessions Judge at Ajmer and was acquitted. The State filed an appeal against the acquittal to the judicial Commissioner of Ajmer. The learned Judicial Commissioner accepted the appeal and remanded the case for retrial before a Special Judge because, reason of certain amendments in the law, only a Special Judge could try an offence under Section 5(2) of the Prevention of Corruption Act at the date of the remand.

4. The appeal here raises certain questions about sanction which we do not intend to discuss because, in our opinion, the evidence adduced does not justify a retrial as no conviction for those two offences could be based on it.

5. It was first alleged that the appellant did not travel at all on the relevant dates and that the burden of proving that he did was on him.

6. We do not think this issue arises because the charge assumes that he did travel and there is no evidence before us to justify even a prima facie inference that he did not. The charge runs -

"That you, on or about etc. ....... cheated the Government ......... by dishonestly inducing the Government to pay you Rs. 62-9-0 on account of T. A. for the journeys performed on the above-mentioned days....."

7. There is no suggestion that the journeys were not performed and only purported to be; and it would be unfair to permit the State to go back on what is said in the charge at this stage, especially after the appellant has entered on his defence and virtually admitted that he did travel on those dates; in any case, he has not denied the fact and that would naturally operate to his disadvantage if the prosecution were to be allowed to change its position in this way.

We must therefore accept the fact that he did travel as alleged on the relevant dates, and the only question that remains is whether he paid the second class fares which he later claimed, and obtained, from Government as T. A. for those journeys.

8. The only proof that is adduced in support of the allegation that he did not is that no second class tickets were issued at Ajmer on the relevant dates either for Abu Road or for Reengus. This is proved by the booking Clerk Ram Dayal, p.w. 4. But the same witness proves that tickets are not always issued and that passengers can pay the fare on the train; also if the second class is fully booked no further tickets are issued till the arrival of the train.

In that case, passengers sometimes buy a third class or an inter class ticket and then pay the difference to the conductor or guard of the train if they are able to find second class of the train if they are able to find second class accommodation when the train arrives. There is no proof that one or other of these courses was not followed on the dates with which we are concerned.

The railway registers and books would show whether or not any payments were made on those dates and the State could have proved the absence of such payments as easily as it was able to prove, from the same sort of material, that no second class tickets were issued. Instead of doing that, the State contended itself with saying that no second class tickets were issued and, then relying on Illus. (b) to S. 106, Evidence