JUDGMENT

R. S. SARKARIA, J.:— The appellant, a Goods Loading Clerk in the Outward Goods Shed, Northern Railway. New Delhi was tried along with one Naresh Chand, an agent of the Birla Cotton Spg. & Wvg. Mills Ltd., Delhi by the Special Judge on charges under Section 120 B, 477-A Penal Code and under Section 5 (2) of the Prevention of Corruption Act. The trial Court acquitted the appellant of the charge of criminal conspiracy, but found him guilty of the other two charges and sentenced him on each of those counts to rigorous imprisonment for one year. A fine of Rs. 200/- was further imposed in addition to the sub-stantive sentence of imprisonment under Section 5(2) of the Prevention of Corruption Act. The sentences were directed to run concurrently.

2. Naresh Chand, the co-accused, was acquitted of all the charges.

3. On appeal, the High Court of Delhi set aside the conviction of the appellant under Section 5(2) of the Prevention of Corruption Act but maintained his conviction and sentence under Section 477-A, Penal Code.

4. Hence this appeal by special leave.

5. The charge under Section 477-A framed against the appellant by the trial Judge, runs as under :

"That you in furtherance of the aforesaid conspiracy on the same day and place, being public servant employed in the Railway Department, willfully and with intent to defraud on 11-1-67 falsified the entries in the Marking-Cum-Loading Register maintained by you as Goods Loading Clerk at GMRI scale in outward Goods Shed. New Delhi, by falsely showing therein that 32 bales of cloth belonging to M/s. Birla Cotton Spg. & Wvg. Mills Ltd., Delhi, had reached Outward Goods Shed, New Delhi on 10-1-1967, when in fact these had reached on 11-1-67 and by making corresponding endorsements on forwarding notes, prepared by Naresh Chand, accused. And thereby you facilitated the issue of invoices and R/Rs and the booking and loading of 32 bales of cloth and you thereby committed an offence punishable under Section 477-A of the India Penal Code and within my cognizance."

6. The prosecution case was that booking of goods by rail via Barabanki was closed and restricted by the Divisional Superintendent, Northern Railway, New Delhi by his order No. 398-T/9 S-1 No. 41 (TR) after January 10, 1967. The appellant entered into criminal conspiracy with Naresh Chand, agent of M/s. Birla Cotton Spg. & Wvg. Mills, Delhi, for booking 32 bales of cotton cloth belonging to the said Mills by circumventing this order of the Divisional Superintendent, on January 11, 1967. The plan was that the appellant would falsify the entries in the Marking-cum-loading Register by showing that receipt of the said 32 bales of cloth on January 10, 1967 by antedating that entry, although, in fact the goods were received in the Goods Shed on January 11, 1967 when the ban against booking imposed by the Divisional Superintendent had become operative. The appellant falsified these accounts by abusing his position as a public servant from corrupt motives.

7. The prosecution has tried to show by circumstantial evidence that these 32 bales of cloth could not have been received in the Outward Goods Shed of Northern Railway before January 11, 1967. This evidence primarily consists of the Gate Passes signed by the Excise Inspector showing the clearance of these goods from the Mills on the 11th January. The Mills had obtained an allotment order for the despatch of these goods to Jagbani. The valid period for this allotment had expired on January 10, 1967.

8. In his examination under Section 342, Cr. P.C., the appellant admitted that at the relevant time, he was working as Goods-Cum-Loading Clerk at the Goods Shed. He further admitted that traffic restrictions in respect of the booking of this class of goods via Barabanki, as alleged by the prosecution, had been imposed by the Divisional Superintendent of the Railway. He further conceded that the entries under the date January 10, 1967 in the Marking-cum-Loading Register. Ex. P.W. 10/J, evidencing