Judgment

GROVER, J. :- This judgment will dispose of all the four appeals from the judgment of the Gujarat High Court.

2. Two appeals i.e. Cr. As. No. 190 & 191 of 1969 had been brought by certificate. The certificate being defective for want of reasons they could not be entertained on that short ground. However, two petitions for special leave were filed and the same were granted. Those appeals (Cr. As. 63 & 64 of 1972) will be dealt with in this judgment.

3. The facts may be stated Manshankar Prabhashankar Dwivedi was at the material time a Senior Lecturer at the D. K. V. Arts & Science College, Jamnagar which is a Government College Vallabhdas Gordandas Thakkar was a legal practitioner conducting cases before the Income-tax and Sales tax Departments. He was also a resident of Jamnagar. It was alleged that in April 1964 the Physics practical examination for the first year B. Sc. was to be held by the Gujarat University. One of the centres was Surendranagar Dwivedi had been appointed as an Examiner for Physics practical. He is alleged to have accepted gratification of Rs. 500/- other than legal remuneration for showing favour to a candidate Jayendra Jayantilal Shah by giving him more marks than he deserved in the Physics practical examination. It is stated that he had obtained that amount through Thakkar, Dwivedi was charged with commission of offences under Section 161, Indian Penal Code, Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act, 1947, hereinafter called the Act . Thakkar was charged under Section 165-A, Indian Penal Code and Section 5 (2) of the Act read with Section 114 of the Indian Penal Code. The Special Judge who tried both these persons found them guilty of the offences with which they were charged. He imposed a sentence of 2 years rigorous imprisonment and a fine of Rs. 1,000/-. (in default further rigorous imprisonment for six months) on each of these persons.

4. Both the convicted persons filed appeals to the High Court. The High Court found that the prosecution case had been proved against both Dwivedi and Thakkar on the merits but on the view which the High Court expressed about the ambit and scope of the sections under which the charges were laid they were acquitted. The present appeals have been filed by the State against both these persons who are respondents before us.

5. It is unnecessary to give the entire prosecution story. We may only refer to what is the last and final stage of that story. According to the pre-arranged plan it was alleged that Pranlal Mohanlal who was the complainant and who was the brother-in-law of the student Jayendra went to the college, where the examination was to take place, along with a panch witness Shivlal Thakkar was in the porch of the college and he demanded the money for being given to Dwivedi, Pranlal, however. Insisted that the money would be paid after he had talked the matter over with Dwivedi and the work was done. Thakkar replied that Dwivedi was busy and would be available after some time. So they all left. Thakkar, followed them. When Pranlal and Shivlal reached the Trolly Station. Thakkar came there and asked them to go with him to a place called Vikram Lodge which they did. There Thakkar again demanded money but Pranlal gave the same reply which he had given before. At about 11 A.M. these three persons came back to the college and went to the first floor where the examination hall was situated and stood outside the hall. There Thakkar brought Dwivedi and Dwivedi said "why are you delaying. You are a fool. You will spoil the life of the student. Pay the amount to Thakkar." Then Pranlal paid Rs. 500/- to Thakkar in the presence of Dwivedi. Thakkar counted the money and put it in his pocket. Dwivedi went back to his room. Thereafter the signal was given and the raiding party arrived and made the recoveries. Necessary panchnamas were prepared.

6. The High Court agreed with the Special Judge that the prosecution case against the prese