-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T State of Rajasthan Vs. Rameshwar Dayal S.B.CRIMINAL APPEAL NO.571/1999 against the judgment dt.17.5.1999 passed by Sessions Judge (Prevention of Corruption Act),Udaipur, in Special Case No.105/1997. Date of Judgment: April 24, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.O.P.Rathi, Public Prosecutor. Mr.N.R.Goswami, for the respondent. BY THE COURT : This appeal is directed against the judgment of the learned Sessions Judge, Prevention of Corruption Act, Udaipur, dated 17.5.1999 whereby the accused respondent Rameshwar Dayal was acquitted under Sections 7 & 13(1)(D)(2) of the Prevention of Corruption Act, 1988, hereinafter referred-to as “the Act of 1988”. -2- Facts leading to this appeal are that on 7.12.1990, the complainant Dungar Singh filed a written report Ex.P.1 before the Dy.Superintendent of Police Shri Azad Kumar Sharma that he purchased the agricultural land for a sum of Rs.32,000/- and went to accused respondent Rameshwar Dayal, who was Naib Tehsildar, Badnor, for registration of the same. He submitted documents on 6.12.1990 and paid a sum of Rs.290/- as against registration fee but the accused respondent demanded Rs.700/- from him. When he went with his uncle Amar Singh, he demanded Rs.600/-, else the matter will be sent at Bhilwara while showing deficiency of stamp duty. According to the report, the complainant was not willing to give illegal gratification, therefore, he has lodged this F.I.R. Upon this report, a trap was arranged by the Anti Corruption Bureau by calling witnesses Chandra Prakash and Dharam Chand. Six currency notes of Rs.100/- each with phenolphthalein powder were given to the complainant with the initial of the Deputy Superintendent of Police. When the complainant went in the Tehsil Office, accused was seen leaving for his house & he was caught red handed and a sum of Rs.600/-, which were found in the pocket of the -3- accused, were recovered. The running note of the proceedings was prepared. The chemically sealed bottles were sent for examination at Jaipur. After obtaining sanction for prosecution, the challan under ss.7, 13(1)(d) read with 13(2) of the Act was filed. The prosecution examined 12 witnesses. The statement of the accused was recorded under section 313 CrPC in which he stated that he has been wrongly implicated at the behest of Sarpanch Parasmal, who is having enmity with him and the complainant has filed report at the instance of Sarpanch Paras Mal. He simply told the complainant to deposit a sum of Rs.600/- towards the deficit stamp duty, as according to him, the sale document should have been for Rs.37,000/-, instead of Rs.32,000/-. After hearing the arguments, the learned trial Judge acquitted the accused on the ground that accused was having inimical relations with Parasmal Ranka (PW 12), who made various complaints against him on account of his refusal to arrange for Rs.1000/- for sweets on the eve of 15th August. This Parasmal (PW 12) also went with the complainant to the office of Anti Corruption and arranged for the trap. According to him, learned trial Judge came to the conclusion that the amount of Rs.600/- was towards the deficit stamp duty, -4- objection for which was raised at the initial stage by the accused. According to the learned trial Judge, had some time been given to the accused, he could have issued the receipt for the same amount. Learned Public Prosecutor has assailed the judgment of the learned trial Judge on the ground that the accused was caught red handed on 7.12.1990, when he accepted the bribe of Rs.600/- towards the registry of agricultural land. The recovery has been proved by using chemical method whereby the water colour turned pink. Learned trial Judge has given undue importance on the minor contradictions, whereas the learned counsel for the respondent has supported the judgment of the learned trial Judge and also pointed out that in this case, the main investigating Officer Azad Kumar Sharma has not been produced by the prosecution. Had he been produced, the entire story would have been different. Having gone through the evidence on record, it appears that the running note of the trap proceedings attached with Ex.P.1, F.I.R., has not been proved on account of non-production of Azad Kumar Sharma, -5- Dy.S.P., Anti Corruption Department, Bhilwara and the important memos have been prepared by him. In the absence of non-examination of this material witness, this can also be a sole ground for throwing out the prosecution case but apart from this, the signatures on various memos have also not been proved by him except the constables and motbirs, who were taken with the trap party. The circumstances under which the trap has been arranged, reveal that it was arranged with a view to break vengeance on account of accused's ill relations with Paras Mal Ranka (PW 12), who was Sarpanch of Badnor. The fact that this witness wanted flag hoisting from him, is proved from Ex.D.7, which is a letter written by the accused to Sarpanch, Badnor. The contents of this letter have been admitted by this witness Parasmal Ranka (PW 12) in his cross examination. Likewise, the distribution of sweets was also stated in the letter Ex.D.5 and the letter of this witness Ex.D.6 to the accused for giving contribution of Rs.1000/- for sweets distribution, therefore, the enmity is proved and admittedly the father of complainant was Ward Panch of Gram Panchayat, Badnor. Dungar Singh (PW 1), who is complainant in this case, has stated in the cross examination that his father was Ward Panch -6- and it is true that the accused told him that the stamp duty will be levied at the rate of Rs.7500/- per bigha at the cost of the land and also demanded stamps of the said amount. He has also admitted that the accused told to the police that he has received Rs.600/- as deficit stamp duty. Muneer Mohd. (PW 2), who was class IV servant of Sub Tehsil, Badnor, has stated that no transaction has taken place before him. The same is the statement of Rajendra Singh (PW 3), who is class IV servant of Sub Tehsil, Badnor. Amar Singh (PW 4) is the uncle of complainant. He has also stated in examination in chief that the accused told him for the deficit stamps. Dhan Dan Singh (PW 5) and Rajkaran Singh (PW 9) are the constables, who accompanied Dy.S.P. during trap. Chandra Prakash Bhadviya (PW 6) and Dharam Chandra Jain (PW 10) are the witnesses of recovery memos. Prahalad Rai (PW 7) and Azimuddin (PW 8) are the clerks of Sub Tehsil, Badnor and Azimuddin (PW 8) has said that there was enmity of accused Naib Tehsildar with Paras Mal, Sarpanch. Thus, from the above discussion, it is clear that this trap proceeding is the outcome of enmity of Sarpanch Paras Mal with accused Rameshwar Dayal and -7- the important lacuna, which the prosecution has left, is the non-production of incharge of the trap party viz; Azad Kumar Sharma, Dy.S.P. and in absence thereof, running note of the trap proceedings has not been proved. In view of the above discussion, the finding of the learned Sessions Judge, Prevention of Corruption Act, Udaipur, vide his judgment dated 17.5.1999 acquitting respondent Rameshwar Dayal for the offences under Sections 7 & 13(1)(D)(2) of the Act of 1988, requires no interference and the same is maintained. The State Appeal is dismissed accordingly. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS