Tara Pada Banerjee and Sudhir Chandra Datta vs The State of Bihar

B.P. Jha, J.—This appeal arises out of a judgment of the trial court dated the 25th January, 1969, passed by the Special Judge, Dhanbad, in Special Case No. 3 of 1968. Sheo Narain Prasad (P. W. 13) made a complain on the 29th May, 1967 to the Subdivisional Magistrate, Dhanbad, against these two appellants. The main allegation in the complaint was that these two appellants took illegal gratification from different persons while tilling up the form for obtaining the loan. The consistent evidence of all the prosecution witnesses is that the two appellants demanded money for filling up the form for the grant of loan. Some of the prosecution witnesses say that the appellants demanded the money from them, but they did not pay, while some say that they had paid the money for filling up the forms.

The only question for consideration is whether to obtain money for filling up the form in connection with the grant of loan amounts to an official act of these two appellants or not ? The evidence on the record does not disclose that to fill up the form for obtaining the loan was an official act of these two appellants. It was the duty of the prosecution to prove the official act of the appellants for the purpose of conviction u/s 161 of the Indian Penal Code. The appellants had only filled up the forms for obtaining the loan. There is no material on the record to suggest chat it was their official act to fill up the forms in connection with the loan. If it was not an official act, the question of obtaining illegal gratification does not arise. There should be a nexus between the illegal gratification and the official act. If the prosecution fails to prove that nexus, the prosecution must fail on that ground. In the instant case, the prosecution fails only on account of the negligence on the part of the prosecution by not leading the evidence in connection with the official act. The prosecution should be careful in leading evidence. I am sorry that these appellants will get the benefit of doubt on account of negligence of the prosecution. In the result, the appeal is allowed, the judgment of the court below is set aside and the conviction and sentence imposed upon the appellants are set aside. The amount of fine, if paid by the appellants shall be refunded to them.