minal Appeal No 203 of 1956
Appeal by special leave from the judgment and order dated December 14 1955 of the Assam High Court at Gauhati in Criminal Appeal No
54 of 1955 arising out of the judgment and order dated May 23 2 1955 of the Court of the Special Judge Lower Assam Districts at Dhubri in Special Case No 2 of 1954
Nur ud Din Ahmad and K R Chaudhury for the appellant
Naunit Lal for the respondent
January 13
The Judgment of the Court was delivered by KAPUR J
This appeal by special leave is directed against the judgment and order of the High Court of Assam
The appellant before us was tried for an offence under section 165A of the Indian Penal Code for having abetted one Khalilur Rahman in the conimission of an offence by the latter under section 161 Indian Penal Code
Both the appellant and Khalilur Rahman were convicted of the offences with which they were charged and sentenced to one
year s rigorous imprisonment
On appeal the High Court acquitted Khalilur Rahman but maintained the conviction and sentence of the appellant
The facts of this appeal are that on May 9 1952 the complainant Narendra Nath Brahma was taking two carts carrying 25 Mds
of paddy for sale to Billashiparabazar along the path which runs by the side of the river Gauranga
When he had gone only a short distance he was stopped by the paddy checking Inspector Khalilur Rahman who was accompanied by the appellant and three others
Khalilur Rahman demanded Rs 200 as bribe and threatened the com plainant that unless the amount demanded was paid his cart and paddy would be seized
In this he was supported by the appellant and three others
The complainant expressed his inability to give that much amount but ultimately he agreed to pay Rs 150
He borrowed Rs 100 from one Surajmal Oswal out of which he offered Rs 80 to Khalilur Rahman who asked him to hand them over to the appellant who counted the money and made it over to Khalilur Rahman
The complainant was also forced to execute a promissory note for a sum of Rs 70 in favour of the appellant and he promised that the money would be paid the following day after the paddy was sold
The 3 complainant learnt in the bazar that another person Happa ram Rai had been similarly treated but he had only paid Rs 15
On May 11 1952 the complainant approached the appellant for the refund of his money and the return of his pronote and although the appellant promised he did not do so
The same day there was a meeting at Futkibari Middle English School where the Deputy Commissioner was present
The complainant presented to him a written complaint describing how he was forced to pay Rs 80 and made to execute a pronote for Rs 70
Thereupon both Khalilur Rahman and the appellant were prosecuted the former under section 161 Indian Penal Code read with section 52 of the Prevention of Corruption Act 1947 2 of 1947 and the latter under section 165A and they were convicted and sentenced by the Special Judge as already stated
The evidence of the complainant was that before Rs 200 was demanded from him the appellant and Khalilur Rahman  went aside and had some talks and coming together accused Khalilur Rahman demanded Rs 200 
He also stated  I told them that I managed to procure Rs 80 somehow and I wanted to hand over to accused Khalilur Rahman who directed me to hand over to accused Faguna saying he would take counting accused Faguna counted the money and then made over the entire money to accused Khalilur Rahman saying that Rs 80 would not do and I should execute a handnote for the balance of Rs 70 promising to pay on the following Saturday 
According to the complainant it was Khalilur Rahman who tore out a page from his note book and handed over the same to the complainant and also lent him his fountain pen and after the pronote was executed both the pen and the pronote were handed over to Khalilur Rahman
The Special Judge found I am fully convinced that a sum of Rs 80 was realised from the complainant for forbearing from seizing of the paddy by the accused Khalilur Rahman being helped and abetted by the accused Faguna Kanta Nath
 4 He therefore convicted Khalilur Rahman under section 161 Indian Penal Code but acquitted him of an offence under section 52 of the Prevention of Corruption Act 1947 and convicted the appellant for abetment of that offence
On appeal Deka J held that from the complaint made by the complainant it was not clear that any payment was made to Khalilur Rahman
He said It may be that Khalilur Rahman was a party to squeezing out some money from a dealer in paddy who tried to evade the law but that falls far short of proving that he had accepted the money through Fagunakanta Nath as alleged now in Court 
The learned Judge accepted the complainant s story that money was paid to the appellant but he was of the opinion that the evidence was not strong enough to prove payment to Khalilur Rahman and therefore he was prepared to give the benefit of doubt to Khalilur Rahman and direct that his conviction tinder section 161 Indian Penal Code be set aside 
As to the appellant he was of the opinion that money was taken by him for payment to Khalilur Rahman as illegal gratification and whether he actually paid it to him or not the offence fell under section 165A and therefore he held the appellant guilty under that section
Thus according to the learned Judge the case against Khalilur Rahman was not proved and as money had been paid to the appellant he was guilty of abetment under section 165A Indian Penal Code
The appellant has come to this Court by special leave
The main argument raised on behalf of the appellant is that as Khalilur Rahman has been acquitted on the facts and circumstances of this case the conviction of the appellant for abetment cannot be sustained
The evidence of the complainant on which the conviction is based was that the money was demanded by Khalilur Rahman and at his instance it was made over to the appellant who counted the money and handed it over to Khalilur Rahman
The pronote was also written at the instance of Khalilur Rahman and was handed over to him
The part played by the appellant according to the story of the 5 complainant was that before the demand of bribe both Khalilur Rahman and the appellant went aside and held a conference and Khalilur Rahman then demanded Rs 200
Rs 80 was brought by the complainant and paid to the appellant at the instance of Khalilur Rahman for the purpose of counting and he in turn gave it to Khalilur Rahman who put it in his trouser s pocket
About this portion of the evidence the trial Court said  it may not be fully true  and the finding of the High Court was that the money re mained with him and was not paid to Khalilur Rahman the question is whether in these circumstances the offence of abetment can be held to have been made out
Under the Indian law for an offence of abetment it is not necessary that the offence should have been committed
A man may be guilty as an abettor whether the offence is committed or not
Section 165A is as follows section 165A  Whoever abets any offence punishable under section 161 or section 165 whether or not that offence is committe in consequence of the abetment shall be punished with imprisonment of either description for a term which may extend to three years or with fine or with both 
Therefore for a person to be guilty of abetment of an offence under section 161 it is not necessary that the offence should have been committed
Abetment is defined in section 107 arid a person abets the doing of a thing when 1he instigates any person to do that thing or 2engages with one or more other person or persons in any conspiracy for the doing of that thing  or 3 intentionally aids by any act or illegal omission the doing of that thing
Explanation 2 to section 107 is as follows  Whoever either prior to or at the time of the commission of an act does anything in order to facilitate the commission of that act and thereby facilitates the commission thereof is said to aid the doing of that act
 It is not suggested that there was any instigation by the appellant for the commission of the offence
6 Further the circumstances proved against the appellant did not bring the case under the second part of section 107 because it is not alleged that there was any conspiracy and a charge of conspiracy must necessarily fail if the other alleged conspirator is acquitted See The King vs Plummer 1 which has received the approval of this Court in Topandas vs State of Bombay 2
In either of these cases it is immaterial hether the person instigated commits the offence or not or the persons conspiring together actually carry out the object of conspiracy
There then remains the third part of section 107 that is abetment by aid
A person abets by aiding when by the commission of an act lie intends to facilitate and does facilitate the commission thereof By the acquittal of Khalilur Rahman the High Court must be deemed to have held that there was no offence under section 161
But it was contended on behalf of the respondent that the acquittal of Khalilur Rahman was wrong and this Court should hold that a wrong acquittal does not prevent the conviction of the appellant for the offence of abetment
Counsel for the respondent referred to Dalip Singh vs State of Punjab 3 where at p 156 Bose J said  We have taken into consideration the fact that the High Court considers that the portion of Mst
Punnan s story regarding the lambardars has been falsely introduced by the police also that both courts have rejected the evidence about the dying declaration
Despite that we agree with the learned Sessions Judge that Mst
Punnan and Mst
Charni are to be believed regarding the main facts and that they correctly named all seven accused as the assailants
On that finding the conviction under section 302 read with section 149 can be sustained
We accordingly uphold these convictions
The acquittals in the other three cases will of course stand but the mere fact that these persons have in our opinion been wrongly acquitted cannot affect the conviction in other cases 
In that case although the High Court had acquitted three accused persons of an offence under section 302 read 1 2 3  7 with section 149 Indian Penal Code yet as in the opinion of this Court the acquittal was wrong section 149 was held applicable in the case of four others who had been convicted by the High Court of section 302 read with section 149
The decision in that case must be circumscribed to the peculiar circumstances of that case
In the present case the person who demanded the illegal gratification for allowing the carts to proceed was Khalilur Rahman who had the authority to do or not to do a particular act and all that the appellant is alleged to have done was to receive the money at the instance of Khalilur Rahman for counting and then paid the money to him
It is not the prosecution case that the appellant abetted the offence by instigating Khalilur Rahman to demand the illegal ratification nor has the prosecution set up or proved a case of conspiracy between the appellant and Khalilur Rahman for the commission of an offence under section 161
On the findings of the Court the appellant received the money for and on behalf of Khalilur Rahman and the evidence of the complainant is that Khalilur Rahman had asked him to hand over the money to the appel lant
If Khalilur Rahman is acquitted and therefore the offence under section 161 is held not to have been committed then in this case no question of intentionally aiding by any act or omission the commission of the offence arises
It may be as counsel for the respondent contended that the acquittal of Khalilur Rahman is wrong and it appears and we say so with respect that the findings of the High Court are inconsistent but as the matter of Khalilur Rahman is not before us by way of appeal against acquittal we do not express any opinion on that question
We are of the opinion that on the facts found and circumstances established in this case and as Khalilur Rahman has been acquitted the appellant s conviction cannot be upheld
We therefore allow this appeal and set aside the order of conviction
The bail bonds shall also stand discharged
Appeal allowed


Summary:
The appellant Federation entered into a contract with a Soda Company of Kenya for supply of 5000 metric tonnes of soda ash dense and the consignment arrived at Bombay on 23121981
The goods were cleared on payment of customs duty of Rs321590421
The appellant on distribution of the goods to various members of the Federation received complaints that the soda ash which had been supplied was of sub standard quality
When the sellers as well as their agents were approached they sent a team of experts to examine the goods and on inspection the goods were found defective
As per agreement dated 921982 the sellers sent a credit note of US  240000 as compensation on account of the defective goods
The amount remitted on account of the import made was only US  535000 as against the earlier contracted amount of US  775000
In view of such reduction the appellant filed a refund application before the Customs Department to the tune of Rs995892 65
The Assistant Collector rejected the refund application as he was not satisfied to the extent of deterioration of the goods before clearance as provided by Section 22 of the 
The appeal preferred was rejected by the Collector of Customs on the reasoning that the damage wad discovered after the goods were out of customs control
The further appeal to the Tribunal was rejected hold ing that the alleged inferior nature of goods was discovered after clearance
514 Under Section 130E of the  present appeal was made to this Court contending that the goods supplied were not in accordance with the contractual speci fication the defects being inherent in nature resulted in diminution in the real value of the goods and what had been agreed upon by the foreign seller was reduction in price on account of the defects and claimed that it would be enti tled to refund of customs duty under Section 22 of the Act
On the question whether the appellant was entitled to the refund of customs duty on account of the compensation given by the seller to the appellant on supply of goods dismissing the appeal this Court HELD 101
When the value is assessed on the basis of the invoice and the goods are cleared the implication is that no remission is allowed and no abatement has been occasioned
There is no express provision which enables the proper officer to make a re assessment for the purpose of remission on the ground that the goods at the time of their importation or at the time of the clearance was sub standard or damaged and the invoice price does not represent the real value
520E F 102
Any error in the assessment of the value by itself does not enable the importer to claim re assessment or refund
It has necessarily to be shown that on account of the damaged or deteriorated condition of the imported goods before or during the unloading of the goods in India the duty to be charged on the goods was proportionate to the value of the damaged or deteriorated goods
520G 521A 103
The question of redetermining the value of the imported goods can arise only in a case where such damage or deterioration before the clearance is proved to the satis faction of the proper officer
When there had been no indi cation of any such condition and the duty has been assessed on the basis of the invoice value and duty is paid the assessment would be binding
The importer on finding the goods cleared and distributed not to his entire satisfaction may have a claim in contract against the seller for provid ing sub standard damaged or deteriorated goods for the value in the invoice and it may be open to the buyer to realize from the seller such damages as he would in law be entitled to
That claim for damages cannot have any bearing to the assessment at the time of the clearance
The price at which the goods has been sold is represented by the invoice price and whatever amount is realized on subsequent agree ment is only by way of compensation as damages
It cannot be said that the damages thus received represents the differ ence in price that had been paid and that ought to have been 515 paid
When the seller had agreed to compensate the buyer for the quality of the goods imported the buyer does not get the right to claim abatement of duty on the assumption that the real price was something less than what has been indi cated in the invoice
521A D 104
There is no material on record to show that there had been a re assessment of the value of the goods
What had been estimated is only quantum of damages sustained by the buyers and to that extent they had been compensated
That arrangement between the buyer and the seller cannot be linked with the assessment of duty and no claim for abate ment of duty under the provisions of Section 22 or a claim for refund under Section 27 could be legitimately enter tained
523A B Biggin  Co Ltd vs Premanite LD Berry Wiggins  LD  Cehave NV vs Bremer  Ford Motor Company of India vs Secretary  of State for India 1937 8 LR 659
A 32 and Vaccum Oil Co vs Secretary of State for India 1932 LR 59 IA 258 referred to
Halsbury s Laws of England para 574 at page 121 Vol 12 referred to