1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR. JUDGMENT State of Rajasthan Vs. Jaswant Singh S.B.CRIMINAL APPEAL NO.116/1998 Date of Judgment ::: 4th August, 2008 PRESENT HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. B.K. Sharma, Public Prosecutor, for the State. Mr. R.P.Garg, for the accused respondent. BY THE COURT: 1. Challenge in this appeal is to the judgment dated 7th June, 1997 whereby the Special Judge (Prevention of Corruption Cases), Jaipur has acquitted the accused-respondent Jaswant Singh in the offences under Section 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 (hereinafter referred to as the 'Act of 1988'). 2. The factual matrix of the prosecution case is as under:- That on 1st June, 1995 PW/12 Rajveer Singh submitted a complaint Ex.P/8 before Dy.S.P. R.S.B.I. Jhunjhunu stating that he requested the accused Jaswant Singh, Halka Patwari to issue a certificate for obtaining an electric connection on his well and gave him a blank prescribed form for having duly filled the said certificate. The accused solicited for a bribe of 500/- rupees in lieu of issuing a certificate. It is alleged that in the morning of 1st June, 1995 the complainant had paid 250/- rupees to the accused and rest of the amount of Rs.250/- was 2 required to be paid when the certificate was prepared by him. The accused Jaswant Singh had asked him to come tomorrow with the rest of the amount of Rs.250/- and to collect the said certificate. Since the complainant did not intent to give the bribe and wanted him to get trapped, he moved the Anti Corruption Authorities to take action. PW/11 Shri Pramod Kumar, the then Dy.S.P., RSBI formulated a scheme for entrapping the accused Jaswant Singh and co-opted two independent witnesses PW/5- Inder Lal and PW/6 Bal Govind Sharma. The complainant gave two notes each of 100/- rupees and one note of 50/- rupees to the Dy.S.P. who having undergone the necessary process, gave back these currency notes to the complainant for handing over to the accused at the appointed time and place. PW/11 Shri Pramod Kumar Dy.S.P. accompanied by the trap party proceeded to Chirawa and reached near the residence of accused Jaswant Singh who happened to be the Patwari Halka Vangothari. On receiving the signal of the complainant, trap party entered in the house and found two persons sitting in a room. One person identified himself to be Jaswant Singh Patwari Halka and second person identified himself to be Tara Chand Patwari Halka Leekhwa Tehsil Chirawa. PW/11 Pramod Kumar recovered initialed two currency notes each of 100/- rupees from the possession of the accused along with his personal amount of Rs.207/-. When the complainant was asked as to why did he not hand over 50/- rupees to the accused, he replied that the accused solicited only 200/- rupees. He handed over the same and kept the rest 50/- with him. PW/11 Pramod Kumar prepared the report and sent the same to Anti Corruption Department whereupon FIR Ex.P/22 was lodged and investigation commenced. 3. The Investigating Officer of the case recorded the statements of the witnesses acquainted with the facts and circumstances of the case prepared site plan Ex.P/11, seized the relevant documents vide memo Ex.P/12 and having obtained the prosecution sanction sent the accused respondent to the Court for trial. 3 4. The accused respondent was indicted for the offence under Section 7 and 13(1)(d)(2) of Act 1988 who pleaded not guilty and claimed trial. In order to further its version, the prosecution has examined as many as twelve witnesses. The accused in his explanation under Section 313 of Cr.P.C., claimed innocence and produced DW/1 Jilen Singh in defence. On completion of trial, the accused respondent was acquitted as indicated hereinabove. 5. Heard the submissions advanced by the learned Public Prosecution appearing for the State, learned counsel for the accused respondent and with their assistance scanned the relevant material available on record. 6. The learned Public Prosecutor appearing for the State, while reiterating the grounds of appeal as enumerated in the memo of appeal, has contended that the bribe amount of Rs.200/- is proved to have been recovered from the possession of the accused and there is no reason to disbelieve the testimony of PW/12 Rajveer Singh as also PW/11 Pramod Kumar who happened to be the Incharge of the trap party. The learned Public Prosecutor has further contended that the trial Court has not properly appreciated the evidence of prosecution witnesses, as such, the judgment of the trial Court deserves to be set aside and the accused respondent be convicted. 4 7. Per contra, the learned counsel for the accused respondent has simply urged that the impugned judgment of the trial Court is perfectly just and cogent. The independent witnesses have not supported the prosecution story and the evidence of the decoy being totally tainted and untrue, does not inspire any confidence, as such, the impugned judgment deserves to be confirmed and the State appeal be dismissed. 8. The only crucial question springing for consideration in the instant appeal is that as to whether the prosecution has succeeded in establishing the demand of Rs.500/- by the accused from the complainant Rajveer Singh and its acceptance beyond reasonable doubt?. The fact situation emerging in the instant appeal is thus: i). PW/12 Shri Rajveer Singh appeared with the case before PW/11 Pramod Kukmar Dy.S.P. that the accused solicited for a bribe of Rs.500/- in lieu of issuing a certificate required by him to obtain an electric connection on his well. ii). The complainant Rajveer Singh had paid Rs.250/- on 1st June, 1995, the day when the complaint Ex.P8 was submitted before Dy.S.P. RSBI Jhunjhunu. The rest of Rs.250 was to be paid to the accused on the next date at his residence. iii). PW/11 Shri Pramod Kumar Dy S.P. formulated a scheme for entrapping the accused and co- opted two independent witnesses PW/5 Inder Lal and PW/6 Bal Govind Sharma. 5 iv).Two currency notes of RS.100/- each and one currency note of Rs.50/- were initialed by the Dy.S.P. and phenolphthalein powder was applied thereupon. v). The decoy gave only two currency notes of 100/- each to the accused and kept the currency note of Rs.50/- with him only. vi).The accused defendant himself stating that the complainant repaid the loan of Rs.200/- to him which he had taken earlier. He further explained that he never solicited for bribe. Vii).The independent witnesses PW/5 Inder Lal and PW/6 Bal Govind Sharma have not supported the prosecution case and turned hostile. 9. Having reflected over the submissions advanced by both the parties and pondered over the evidence available on record, it is found that both the independent witnesses of this case PW/5 Inder Lal and PW/6 Bal Govind Sharma have not supported the prosecution story and turned hostile. They have categorically stated that the accused replied when asked by Dy.S.P. about the recovery of tainted currency notes that the complainant had raised a loan of Rs.200/- from him which he had returned. It is made clear at this stage that one person named Tara Chand Patwari Halka Leekhwa was also found sitting along with the accused in his room at the time of trap proceedings. The prosecution has produced this witness in evidence. This witness PW/2 Tara Chand Sharma has also not supported the prosecution case and in his deposition he has stated that Jaswant 6 Singh and Rajveer Singh talked in his presence about the loan account. Mr. Rajveer returned Rs.200/- to the accused Jaswant Singh impressing upon that it was the loan amount which he had taken from him. 10. Now, turning to the evidence of decoy PW/2 Rajveer Singh and PW/11 Pramod Kuamr Dy.S.P. who led the trap at the instance of decoy, their evidence is not found to be trustworthy. The prosecution case is that the accused solicited for a bribe of Rs.500/- for issuing a certificate and the complainant had already paid Rs.250/- to him on 1st June, 1995. On 2nd June, 1995 he was to pay the rest of Rs.250/- to the accused. The Dy.S.P. initialed the currency notes and applied phenolphthalein powder but the complainant is found to have given only 200/- rupees to Patwari Halka. Why did the complainant withhold the currency notes of Rs.50/- with him?. What made the decoy to give only Rs.200/- to the accused Jaswant Singh? Why did the accused agree to accept Rs.200/- bribe only from the complainant when he had already asked the complainant to come with Rs.250/- on the next date and collect the certificate? All these cropped up questions have not been satisfactorily replied by the prosecution. Per contra, the accused has examined DW/1 Jilen Singh in defence. The independent witnesses of the prosecution case as also PW/2 Tara Chand Sharma, Patwari Halka Leekhwa have 7 stated that the complainant Rajveer Singh returned Rs.200/- to the accused in their presence impressing upon that it was the loan amount which he had taken from him. DW/1 Jilen Singh has supported the evidence of all these three witnesses PW/2 Tara Chand Sharma, PW/5 Inder Lal and PW/6 Bal Govind Sharma and thus the accused has succeeded in establishing his defence by preponderance of probability. The prosecution has utterly failed to prove this fact as to why the complainant gave only Rs.200/- to the accused instead of Rs.250/-?. This act casts doubt on the veracity of PW/12 Rajveer Singh. 11. The defence of the accused that he did not accept Rs.200/- as bribe and instead he took this amount as the return of loan which he advanced to the complainant seems to be worthy of credence. The Hon'ble Supreme Court in the case of M.S. Narayana Menon @ Mani Vs. State of Kerala and anr. (2006 (6) SCC 39) has held that: “Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding.” 12. Thus it is very well settled that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but it can establish the same by preponderance of probability. 8 13. The learned trial Court has critically examined the material documents on record and properly appreciated the evidence of the prosecution witnesses. The evidence of the complainant Rajveer Singh seems to be tainted and shaken and does not inspire confidence. Not only his evidence is laden with contradictions and discrepancies but is not corroborated by any of the independent witnesses also. The learned trial Court has held that neither the demand of bribe amount is proved nor it is proved that the accused respondent accepted Rs.200/- as a bribe money. The impugned judgment is cogent and well merited and the same does not suffer from any infirmity. I am in unison with the finding of acquittal of the learned trial court and the impugned judgment calls for no intervention. 14. For these reasons, the State appeal being devoid of merits stands dismissed. (MAHESH BHAGWATI), J. PCG