Judgment

KAILASAM, J.:- This appeal by special leave is preferred by the first accused Panalal Damodar Rathi against the judgment of the High Court of Judicature at Bombay whereby it dismissed the Criminal Appeal filed by him and upheld the conviction and sentence imposed on him by the trial court.

2. The appellant was a Police-Prosecutor attached to the Court of Judicial Magistrate, Kopargaon in the district of Ahmednagar. He was tried jointly along with the court orderly Radhakrishna Rambhau Dalvi as second accused for offence punishable under S. 161, Indian Penal Code and S. 5 (1) (d) read with S. 5 (2) of the Prevention of Corruption Act. The appellant was convicted under S. 161, Indian Penal Code, and under S. 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act and sentenced to one years rigorous imprisonment and a fine of Rs. 1000 and in default to further rigorous imprisonment for three months. The second accused who was also convicted and sentenced by the trial court and whose appeal to the High Court failed is not before this Court.

3. The appellant preferred Criminal Appeal No. 1347 of 1970 before the High Court against his conviction and sentence. The High Court confirmed the conviction and sentence and rejected the appeal. An application for leave to appeal to the SC was rejected by the High Court. The appellant applied for special leave to this Court which was granted and thus the appeal is before us.

4. The charge against the appellant was that while working as a Police Prosecutor, he demanded illegal gratification from the complainant Parshram Govind Aglave (P. W. 1) as a motive or reward for not bringing to the notice of the Court the previous conviction of the complainant which would have exposed him to enhanced punishment. Pursuant to this demand which was for Rs. 50 it was agreed that the complainant should pay to the first accused Rs. 25 which, it is alleged, he accepted on 21st Nov., 1969.

5. The complainant was being tried for an offence under the Bombay Prohibition Act during the months of August to September, 1969. The appellant was working as Police Prosecutor whereas the second accused was on duty as Court orderly. According to the prosecution on 18th August, 1969, the appellant advised the complainant to plead guilty so that he would be let off on a nominal sentence and on his part promised not to bring to the notice of the Court the previous conviction. He demanded Rs. 50/- as gratification. On the date of the next hearing 3rd Nov., 1969, the appellant again contacted the complainant and repeated his demand and the complainant promised to think it over. Subsequently, on 18th Nov., 1969, the complainant offered to pay Rs. 25/- and the appellant agreed to receive that amount. The complainant promised to make the payment on the 21st Nov., 1969. In the meanwhile, on the 19th Nov., 1969, the complainant wrote to the Police Sub-Inspector attached to the Anti-Corruption Branch complaining of the illegal demand and requesting the officer to meet him at his village on the evening of 28th November as the case was posted for the next day.

6. Mr. Wadekar (P. W. 6), the Sub-Inspector attached to the Anti-corruption Branch went to the village with two Panchas and on taking down the complaint and on completing the formalities, laid the trap in the varandah of the court room on the 21st Nov., at 12 noon. The complainants version is that at about 1 P. M. he and the Panchas stood near the eastern side of the varandah of the court building, the appellant came near him and inquired if he had come. The complainant told him to relieve him from the case and to see he was given a lesser sentence. The appellant asked him if he had brought the money and the complainant told him that he had. The second accused Dalvi was standing there. Appellant asked him to pay the money to constable Dalvi. Appellant asked Dalvi to receive the money from him and then went inside the Court. According to the complainant, when this