Mukerji, J.

[1] Mahfooz Ali, the appellant, was charged under Section 5 (2) of Act 2 of 1947, for having committed "criminal misconduct" on 11-10-1949, by abusing his position as a head constable, for the purpose of deriving from one Shivlal pecuniary advantage to the extent of Rs. 20 for himself by illegal and corrupt means. The learned Additional Sessions Judge of Agra convicted the appellant on the aforesaid charge and sentenced him to undergo two years' E. I. and a fine of Rs. 200, in default of payment of fine the accused was ordered to undergo further rigorous imprisonment for six months. The appellant has preferred the aforesaid appeal from his conviction.

[2] The facts giving rise to his conviction briefly put were these.

[3] The appellant, Mahfooz Ali, was posted as a head constable at the Idgah outpost in the City of Agra at the time when he is alleged to have committed the offence with which he was charged and for which he was convicted. The complainant in this case was one Shivlal.

[4] Shivlal is alleged to have len a sum of Rs. 150 under two promissory notes--one of Rs. 100 and the other of Rs. 60. Shivlal wanted his money back from Susa, which Susa was not repaying and, therefore, it is said that on 6-9-1949 Shivlal served a notice of demand on Susa. On 10th September in the evening it is said that Susa went to the shop of Shivlal and there was a quarrel between the two over this repayment of debt. Shivlal then lodged a report against Susa at the police station Rakabganj and he followed it up by filing a complaint against Susa in the Court of City Magistrate. This criminal case ended in a compromise, on Susa paying RS. 50, being possibly the loan on one of the two promissory notes.

Shivlal then filed a suit in respect of the other promissory note of RS. 100 which was decreed against Susa. Shivlal complainant's story then is that while the complaint against Susa was pending, the accused Mahfooz Ali sent for him (Shivlal) told him that he had received an application from Susa complaining that he (Shivlal) had not returned the promissory note, even though, he had received payment for the same. Shivlal then says that he told the accused that the allegation of Susa was absolutely false and saying so he came away from, the accused. Shivlal goes on further to lay that he was sent for by the accused 6 or 7 says later and was again told by the accused that he was going to lose his case and he was further going to be prosecuted under Section 420, Penal Code. Shivlal says that thereon he made entreaties to the accused to save him, whereupon the accused demanded a sum of RS. 50 as illegal gratification for making a favourable report. Bargain was settled at Rs. 20 instead of RS. 50.

[5] Shivlal, after his return from the accused, went and complained about this to one Babulal Lodh who was a member of the Ward Congress Committee. Babulal Lodh thereupon took Shivlal with him to Babulal Mittal, the President of the Town Congress Committee, and apprised him of the entire story. Babulal Mittal thereupon gave a letter to Shivlal addressed to the Additional District Magistrate. Shivlal wont to the Additional District Magistrate with this letter of Babu Lal Mittal who, in his turn, gave him another letter or the City Magistrate, Sri R. C. Asthana. Shivlal then went to the City Magistrate with the letter of the Additional District Magistrate and there the statement of Shivlal was recorded by Sri Mathur and two ten rupee notes were taken from Shivlal, their numbers noted and the notes returned to Shivlal. These notes were meant, according to the plan, for being passed on to the accused.

[6] The usual trap was then laid, the notes were then passed on to the accused and on a search of the person of the accused these notes were recovered. The recovery list is EX. p. 2 on the record and it records the following facts:

[7] That Sri J. S. Mathur along with Sri Asthana, City Magistrate, went to Idgah Outpost at about 7-10 p. m. on 11-10-1949