JUDGMENT

KAILASAM, J.:— This appeal is by special leave against the judgment of the Judicial Commissioner at Agartala convicting the appellant, Bhupesh Deb Gupta of an offence under S. 161, I. P. C. and sentencing him to a fine of Rs. 200/.

2. Pending appeal in this Court, the appellant died and his widow brought on record as the legal representative of Bhupesh Deb Gupta, as she was adversely affected by the sentence of fine and conviction under S. 161, as it deprived her of receiving the pay and other allowances which the accused would have been entitled to but for his conviction.

3. The accused Bhupesh Deb Gupta alias Erick was working as an Upper Division Clerk in the Tripura Territorial Council in the year 1959. While investigating some other offence, P. W. 1 Shri T. Ganguly who was the Deputy Superintendent of Police in Tripura in 1963 came across certain postal envelopes in the office of the Chief Executive Engineer which disclosed that the accused was receiving bribes. After investigation, the accused was charged with various offences. In this appeal we are only concerned with the charge that the accused received a sum of Rs. 75/- from Nikhil Chakraborty as gratification as a motive or reward for showing favour to him and that on or about 2nd December, 1961 he received Rs. 75/- sent by Money Order by Mr. Nikhil Chakraborty on behalf of one Sachindra Dey as gratification for securing service for the said Sachindra Dey.

4. The trial Court found the accused guilty of the charge of receiving Rs. 75/- from Nikhil Chakraborty on or about 2nd December, 1961 and convicted him of an offence under Section 161, I. P. C. and sentenced him to suffer rigorous imprisonment for two months. The trial Court framed other charges but found him guilty of another charge which need not be referred to as finally he was acquitted by the High Court of all charges except the one referred to above. The High Court while confirming the conviction under S. 161, I. P. C. regarding the receipt of Rs. 75/- from Nikhil Chakraborty reduced the sentence to a fine of Rs. 200/- only, taking into account the age and the long lapse of time between the date of offence and the date of conviction.

5. The charge with which we are concerned as framed by the Sub-Judge, Agartala reads as follows:

"That you Shri Bhupesh Deb Gupta, alies Erick Deb Gupta, Assistant Civil Secretariat, Tripura, which working as Upper Division Clerk in the Officer of the Chief executive Officer of the Tripura Territorial Council (now defunct) accepted on or before 2nd day of December, 1961 a gratification other than legal remuneration of an amount of Rs. 75/- through money order from Shri Sachindra Deb, remitted by Shri Nikhil Chakraborty for showing, in exercise of your official function, favour to the said Sachindra Deb, on the plea of securing service for the said Sachindra Deb and thereby committed an offence punishable under S. 161 of the I. P. C. and within the cognizance of this Court".

6. The charge states that accused was a public servant and that he accepted a gratification other than legal remuneration of an amount of Rs. 75/- from Nikhil Chakraborty for showing, in exercise of his official function, favour to Sachindra Dey by securing service for Sachindra Dey. Before the accused can be held guilty of an offence under S. 161 of the I. P. C., the following ingredients will have to be proved:

1. The accused at the time of the offence was a public servant.

2. That he accepted from some person a gratification.

3. That such gratification was not a legal remuneration due to him.

4. That the accused accepted the gratification as a motive or reward for one of the following purposes:

(a) doing or forbearing to do an official act:

(b) showing or forbearing to show favour or disfavor to someone in the exercise of his official functions;

(c) rendering or attempting to render, any service or disservice to someone, with the Central or any State Government or Parliament or the Legislature of any State, or