[1] IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR JUDGMENT S.B. CRIMINAL APPEAL NO. 587/1997 MAM RAJ Vs. STATE OF RAJASTHAN S.B. CRIMINAL APPEAL UNDER SECTION 374 CR.P.C. AGAINST THE JUDGMENT AND ORDER DATED 19.11.1997 PASSED BY THE SPECIAL JUDGE, PREVENTION OF CORRUPTION ACT, JAIPUR IN SPECIAL CRIMINAL CASE NO. 25/1993. Date: 23/07/2008. HON'BLE MR. JUSTICE K.S. RATHORE Mr. Samandar Singh for the accused-appellant. Mr. B.S. Chhaba, Public Prosecutor for the State. *** The present criminal appeal is directed against the judgment dated 19.11.1997 passed by the Special Judge, Prevention of Corruption Act, Jaipur, whereby the accused-appellant has been convicted under Sections 7 and 13(1)(D)(2) of the Prevention of Corruption Act (for short 'the P.C. Act') and sentenced to undergo rigorous imprisonment for six months with a fine of Rs. 200/-, in default of payment of fine to further undergo simple imprisonment for one month under Section 7 of the P.C. Act and to undergo rigorous imprisonment for one year with a fine of Rs. 500/-, in default of payment of fine to further undergo simple imprisonment for three months under Section 13(1)(D)(2) of the P.C. Act. Both the sentences [2] were ordered to run concurrently. 2. In brief the facts of the case are that PW6 Ganesh Ram lodged a written report on 18.03.1993 before the Deputy Superintendent of Police, Rajasthan State Investigation Bureau, Sikar, wherein it has been stated that the complainant wanted some documents from the accused- appellant Mamraj, who at the relevant point of time was working as Patwari. To provide these documents, the accused-appellant Mamraj demanded Rs. 150/-. 3. On receiving the above report, the Dy. Superintendent of Police made enquiry from the complainant and thereafter summoned the Motbirs. On arrival of Motbirs namely; PW4 Madan Singh and PW5 Amrit Singh, pre-trap formalities were completed and memo of handing over notes (P-1) was prepared and thereafter the trap-party proceeded to village Bhadwari and reached there at about 02.45 p.m. The complainant went to the house of the accused where he came to know that the accused had leaved for village Kanwat. Thereafter the trap party proceed to village Kanwat and reached there at 03.30 p.m., where it came to the notice that the accused leaved for Sirohi at 4.45 p.m. and sent for decoy at the house of the appellant. The decoy came back from the house of the accused and informed the Dy. S.P. that the accused could come at bus stand and there [3] he would pay the amount to him. After some time the accused-appellant came at bus stand and it is alleged that the decoy paid Rs. 150/- there as bribe to the accused-appellant. After making payment the decoy gave signal to the trap-party, upon which the trap-party arrived there and caught him. Upon enquiry from the accused-appellant regarding the amount received by him, he immediately told that he had given loan of Rs. 500/- to the decoy two years back and against the said amount the decoy paid Rs. 150/-. 4. Thereafter the accused-appellant was taken to the hospital for completing the trap proceedings but the people assembled there. Thereafter he was taken to the police station Neem-Ka-Thana where all the formalities were completed by the trap-party. After conducting the investigation, obtained sanctioned from the prosecution and submitted charge-sheet in the Court. The trial Court framed charges against the accused-appellant, who denied the charges and claimed to be tried. The prosecution examined as many as 10 witnesses and exhibited 28 documents. The statement of the accused-appellant was recorded under Section 313 Cr.P.C. 6 witnesses were examined in defence and exhibited 5 documents. [4] 5. The Special Judge, Prevention of Corruption Act, Jaipur after hearing rival submissions of the respective parties, vide its impugned judgment dated 19.11.1997 convicted and sentenced the accused-appellant as indicated herein above. 6. Aggrieved and dissatisfied with the impugned judgment dated 19.11.1997, the present criminal appeal has been preferred by the accused- appellant on the ground that in bribery cases, the place of demand of bribe is very important. Demand of bribe is not only one of ingredient of offence, but is the genuineness of the case as held by the Hon'ble Apex Court and High Courts. In the present case, the prosecution has failed to prove this important ingredient of demand of bribe. In the FIR Ex.P4, the decoy has mentioned that first of all the demand of bribe was made by the accused- appellant on 01.03.1993 and that too in the presence of Harish Chand Gupta and the second demand of bribe, according to the FIR, was made on 15.03.1993. 7. In the statement before the Court, the decoy did not state a word about the demand of bribe on 01.03.1993 and only stated that demand of bribe was made on 15.03.1993, but in the cross- examination he contradicted on the above aspect. [5] Further the demand of bribe is based on uncorroborated testimony of the decoy and upon perusal of his statement, it reveals that he is not a witness of sterling worth. The prosecution has not produced any witness to corroborate the testimony of the decoy. Although the prosecution has named Harish Chandra Gupta as witness before whom it was alleged that demand of bribe was made but he was not produced in the Court. 8. Further the trial Court also not considered the fact that the accused-appellant has proved the motive of the decoy for falsely implicating him in the case. In his cross- examination, the accused-appellant has stated as under:- "मेरे िपताजी के सिहत चार भाई थे, चारों भाईयों की 70 बीघा जमीन थी। मेरे िपता के भाई सांवतराम थे, सांवतराम की लडिकयों ने दावा िकया था। वे इसमें िहः सा चाहती थी। सांवतराम मेरे साथ रहते थे। यह दावा अभी भी चल रहा है। तारीख पेशी का Ú यान नहीं, इस दावे में मुझे चाचा व ताउ को पाटȹ बनाया था। सांवतराम की ¼त् यु हो चुकी सन् 91 में हईु थी। सांवतराम के अलावा मेरे चाचा सुरजाराम, मंगाराम थे। मैं असली सुरजाराम का हंू और नारायणलाल के दत् तक गया ह।ू नारायण लाल की ¼त् यु सन् 1993 से पहले हो चुकी थी। नारायण का िहः सा भी मैं ही लेना चाहता था। सांवतराम का िहः सा [6] भी लडका नहीं होने से मैं ही लेना चाहता था। मुलिजम ने मुझे कहा था िक दत् तक पुऽ होने का मेरे पास कोई कागजी सबूत नहीं है। यह गलत है िक मुलिजम ने मुझे कहा हो की फजȸ तरीके से नारायण का नाम िबना कागजी ूमाण के िपता के रूप में िलखवाने पर वह मेरे िखलाफ पुिलस में कायर्वाही करेगा। नारायण और सांवतराम के मरने के बाद नामान् तरण की कायर्वाही मेरे नाम हो गई थी, जो 6 माह पहले हो गई थी। यह सही है िक तः दीक शेप के बाद हईु है। यह गलत है िक लडिकयों का िहः सा मुलिजम Ʈारा िलखने के कारण मैं मुलिजम से नाराज था।" 9. To prove this enmity, DW3 Ram Kumar was examined in defence who has stated that an application on behalf of three daughters and wife of Sanwat Ram was moved on 24.05.1992 for opening the mutation in their name. It is clear that prior to the trap, the accused had opened the mutation in favour of three daughters and wife of Sanwat Ram, whereas the complainant being adopted son, claimed mutation in his name and that became the reason of falsely implicating the accused-appellant in this case. 10. Further the prosecution failed to prove the demand of bribe as reveals from the statement of PW6 Ganesharam. PW4 Madan Singh and PW5 Amrit Singh, both the Motbirs did not state that they heard the conversation to show that the accused- appellant had demanded bribe from the complainant [7] and they were standing far away from the place. PW7 Gopilal also not stated that he heard the conversation. The same is the statement of PW8 Sagarmal and PW9 Chatrasal Singh. Thus, the statement of the decoy that the accused-appellant had demanded Rs. 150/-, is not proved at all. 11. In this case, it is also significant to note that in the FIR it has been mentioned that on Thursday he would met at Bhadwari, but according to the prosecution story, as has been brought on record, it is subliside that the accused-appellant was not found in village Bhadwari and thereafter the decoy took the trap-party to village Kanwat, but there also the accused was not found. From there the trap-party proceeded to village Sirohi and there too, when the decoy first reached at the house, the accused was not found there and ultimately he was trapped at bus stand Sirohi, which creates doubt that the accused-appellant had ever demanded bribe but the decoy was persistently making efforts to implicate the accused falsely in the case. 12. It is also to be seen that the explanation was given at spot that the complainant took a loan of Rs. 500/- from the accused-appellant and in lieu of the loan, part payment was made by the complainant which was recovered during trap by the [8] trap party. Further the prosecution has utterly failed not to examine the independent witnesses DW4 Chatrasal Singh, DW5 Prabhat and DW6 Kapil Deo. 13. I have heard learned counsel for the accused-appellant, learned Public Prosecutor appearing for the State and have also gone through the impugned judgment as also the material available on the record. 14. I have also perused the judgment, referred by the learned counsel for the accused-appellant, rendered by the Hon'ble Supreme Court in the case of Subhash Parbat Sonvane Vs. State of Gujarat, reported in 2002(2) R.C.C. 552, wherein the Hon'ble Supreme Court has held that “for convicting a person u/s. 13(1)(d)(i), there must be evidence on record that the accused 'obtained' for himself or for any other person, any valuable thing or pecuniary advantage by either corrupt or illegal means or by abusing his position as a public servant or he obtained for any person any valuable thing or pecuniary advantage without any public interest.” 15. It has further been observed by the Hon'ble Supreme Court that “As per witness, the accused informed the complainant to come in the [9] evening- When accused started to go to the toilet, the complainant followed him and gave him some thing from his pocket to the accused who took the same and push in his pocket. From this evidence, it cannot be inferred that the accused demanded any amount from the complainant or that he had obtained the same.” 16. Here applying the ratio decided by the Hon'ble Supreme Court, in the present case also, as per the complaint, the complainant has submitted that the accused demanded bribe at village Bhadwari and as the accused was not found there, the trap- party proceeded to Kanwat where also the accused was not found. Thereafter, as per the information, they proceeded to village Sirohi and when the accused was at bus stand, he simply put Rs. 150/- in the pocket of the accused. 17. Thus, as per the ratio decided by the Hon'ble Supreme Court, in the instant case it cannot be inferred that the accused had demanded any amount from the complainant or he had obtained the same, on the contrary, the accused on the spot has given explanation that this amount of Rs.150/- is the part payment in lieu of the loan of Rs. 500/- taken by the complainant from the accused- appellant. [10] 18. Upon perusal of the judgment rendered by the Hon'ble Supreme Court in the case of Subhash Parbat Sonvane Vs. State of Gujarat (supra) as well as the judgment passed by the Special Judge, Prevention of Corruption Act, Jaipur, as discussed herein above, since the prosecution has utterly failed to prove its case against the accused- appellant for the offences under Sections 7 and 13 (1)(d)(2) of the Prevention of Corruption Act, therefore, the judgment passed by the Special Judge is not only contrary to the statements and documents available on the record but also contrary to the law laid down by the Hon'ble Supreme Court. Thus, the accused-appellant deserves to be acquitted from the aforesaid offences. 19. Consequently, present criminal appeal is allowed and the impugned judgment dated 19.11.1997 passed by the Special Judge, Prevention of Corruption Act, Jaipur is hereby quashed and set aside. The accused-appellant is acquitted from the offences under Sections 7 and 13(1)(d)(2) of the Prevention of Corruption Act. Since the accused- appellant is on bail, he need not surrender. His bail bonds stand discharged. (K.S. RATHORE), J. /KKC/ (H/Reserved)