1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR. JUDGMENT Ram Rai Vs. State of Raj. S.B.CR. APPEAL NO. 112/1986 DATE OF JUDGMENT :::: 18th July, 2008. P R E S E N T HON'BLE MR. JUSTICE MAHESH BHAGWATI Mr. RN Khandelwal, for the accused appellant. Mr. BK Sharma, Public Prosecutor for the State. BY THE COURT: Challenge in this appeal is to the judgment and order of conviction dated 21st February, 1986, whereby the Special Judge Anti Corruption Cases Jaipur convicted the accused appellant Ram Rai S/o Shri Narain Lal by caste Balai, R/o of Niwai in the offences under Section 161 of IPC and Section 5 (1) (d) (2) of Prevention of Corruption Act, 1947 (hereinafter referred to as 'Act 1947') and sentenced him as under: U/S 161 of IPC One year Rigorous imprisonment. Sec. 5(1)(d)(2) of Prevention of Corruption Act, 1947 One year Rigorous imprisonment and a fine of Rs.200/- and in default of payment of fine to further suffer Rigorous imprisonment of two months. Both the sentences were ordered to run concurrently. 2 2. The nub of the prosecution story as unfolded by PW/1 Abdul Aziz is as under: That on 9th April, 1980 the complainant PW-1 Abdul Aziz submitted a complaint Ex.P/1 to Dy.S.P. Anti Corruption Department, Ajmer stating that the accused Ram Rai Land Records Officer Tehsil Devli, District Tonk, has solicited for a bribe of Rs.200 for mutation of his land. He has no intention to pay the gratification to the Land Record Inspector, hence necessary action should be taken. The complainant also stated that having settled the time and the place for giving this bribe amount to the accused, he shall again come on 10th April, 1980. Since the complainant could not manage 200 rupees, he approached the Dy.S.P. A.C.D on 11th April, 1980 and apprised the Dy.S.P. that on his request the accused has agreed to accept 150 rupees instead of 200 rupees. PW/7 Bhanwar Singh Dy.S.P. A.C.D. Ajmer formulated a scheme for entrapping the accused Ram Rai and co- opted two independent witnesses PW/2 Shri Har Lal and PW/5 Shri Jivan Singh Rathore. The complainant gave 150 rupees to Shri Bhanwar Singh Dy.S.P. who after necessary formalities fulfilled gave back these currency Notes to the complainant for handing over to the accused at the appointed time and place. PW/7 Shri Bhanwar Singh Dy.S.P. accompanied by trap party proceeded to bus-stand, Devli where both the complainant Abdul Aziz and the accused Ram Rai entered into a Hotel. 3 On receiving the signal of the complainant, trap party entered into the Hotel, accosted the accused Ram Rai and recovered the bribe amount of Rs.150 from his possession. PW/7 Bhanwar Singh prepared a running note Ex.P/1 on the spot, recovered the currency Notes of Rs.150 from the accused appellant and sent the report to Police Station Anti Corruption Department whereupon the FIR Ex.P/24 was lodged and investigation commenced. 3. The Investigating Officer recorded the statements of witnesses acquainted with the facts and circumstances of the case, prepared a site plan Ex.P/7, seized the relevant documents submitted by the complainant Abdul Aziz vide memo Ex.P/10, obtained the prosecution sanction and thereafter sent the accused appellant for trial before Special Judge Anti Corruption Cases, Jaipur. 4. The accused appellant was charged for the offences under Section 161 of IPC and Section 5 (1)(d)(2) of Act 1947 who pleaded not guilty and claimed trial. In order to further its version, the prosecution has examined as many as 10 witnesses. The accused appellant in his explanation under Section 313 of Cr.P.C. claimed innocence and adduced 5 witnesses in defence. On completion of trial, the appellant was convicted and sentenced as indicated hereinabove. 4 5. Heard the submissions advanced by the learned counsel for the appellant, learned Public Prosecutor for the State and with their assistance scanned the prosecution and defence evidence as also the relevant material available on record. 6. Shri R.N. Khandelwal, the learned counsel for the appellant has assailed the impugned judgment mainly on following four grounds:- (i)That the demand of bribe amount of Rs. 150/- does not stand corroborated by any other independent witness and the solitary statement of the complainant in this regard is not sufficient to convict the accused; (ii) The learned trial court has not assigned any reason to disbelieve the explanation and defence furnished by the accused appellant; (iii)The evidence of the prosecution witnesses is discrepant and unreliable as such, it was not safe to hold the evidence of interested witnesses trustworthy and convict the accused, and; (iv) Fourthly, sanction to prosecute the accused-appellant has not been accorded by the competent authority. 7. Per contra, the learned Public Prosecutor has simply urged that the impugned judgment is cogent and well merited. The learned Special Judge has critically examined the evidence of prosecution witnesses in great details and there does not appear any infirmity 5 therein, as such the appeal deserves to be set aside. 8. Two charges, one under Section 5(1)(d) read with Section 5(2) of Act, 1947 and the other under Section 161, penal code were framed against the appellant wherein it was stated that the appellant obtained the gratification of Rs. 150/- other than the legal remuneration from the complainant Abdul Aziz for mutation of his land as a motive. The learned Special Judge convicted the accused-appellant mainly on the ground that the proof of receipt of Rs. 150/-(currency notes) by the appellant from the complainant Abdul Aziz raises a presumption under Section 4 (1) of Act 1947 against him and the appellant has not been able to revert that presumption. “9. Sec. 4 (1) of the Prevention of Corruption Act reads :- “Where in any trial of an offence punishable under sec.161 or sec. 165 of the Indian Penal Code (or of an offence referred to in clause (a) or clause (b) of sub-sec. (1) of sec. 5 of this Act punishable under sub-sec. (2) thereof, it is proved that an accused-person has accepted or obtained, or has agreed to accept or attempt to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said sec. 161, or, as the case may be, without consideration or for a consideration which he knows to be 6 inadequate.” 9. From a reading of the above provision, it is clear that its operation, in terms, is confined to a trial of an offence punishable under sec. 161 or sec. 165, Penal Code or under clause (a) or (b) of sec. 5(1) read with sub- sec. (2) of that sec. of the Act. If at such a trial the prosecution proved that the accused has accepted or obtained gratification other than legal remuneration, the court has to presume the existence of the further fact in support of the prosecution case, viz., that the gratification was accepted or obtained by the accused as a motive or reward such as mentioned in sec. 161, Penal Code. The presumption however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. But the degree and the character of the burden of proof which sec. 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under sec.101, Evidence Act rests on the prosecution. While the mere plausibility 7 of an explanation given by the accused in his examination under sec.313 of Cr.P.C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the records, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour;it is not necessary for him to establish his case beyond a reasonable doubt) See Mahesh Prasad Gupta V. State of Rajasthan (1). 10. Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under sec. 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under sec. 5(1) (d) (2) of the Prevention of Corruption Act and sec. 161, Penal Code. The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still born. 11. Let us now consider the facts of the present case in the light of the principles 8 annunciated above. The testimony of its star witness P.W.1 Abdul Aziz is that it was Ram Rai Girdavar (Land Records Inspector) who solicited for 200 rupees as bribe for mutation of his land. He did not intend to part with this money and wanted to be an action against him by the Anti Corruption Department. The witness before the Court has stated in examination in chief that when he contacted the Land Record Inspector for the mutation of his land, he replied that his work shall be done in routine. Thereafter, again he met the accused Ram Rai for his work, then also he reiterated the same reply that his work shall be done in routine and thereafter he demanded a bribe of rupees 500/- in lieu of mutating his land. But, on the contrary, the statement Exhibit D/1 given by the decoy before the Investigating Officer during investigation reveals that the offer to pay bribe initially was made by the decoy which the witness has denied before the Court in his searching cross- examination. A perusal of the statement of the complainant further reveals that initially an amount of Rs. 500/- as bribe was demanded by the accused thereafter, on 9th of April 1980, as per the complainant, appellant asked for 200 rupees and finally on 11th of April 1980 it was reduced from Rs. 200/- to Rs. 150/-. There is no mention of this fact in report Ex. P/1 that the accused- appellant initially demanded 500 rupees as bribe for mutating his land. Since the demand of 9 gratification is not corroborated by any other independent witness, the shaky and unstable statements of the decoy with regard to demand of bribe makes the whole prosecution story doubtful. The learned Special Judge has not considered this aspect and altogether ignored it. 12. Secondly, when the appellant is said to have trapped and the initial currency notes of Rs. 150/- were recovered from the possession of the appellant, he furnished the instant explanation that he did not obtain the gratification from the complainant but the complainant asked him to hand over this money to his relative firm Karim Bakhsh Alladin resident of Niwai which he owed to them. It is relevant to note here that the accused is also a resident of Niwai who lives in his village after performing his official duty of the day. This explanation finds place at portion 'K' to 'L' in the running note of complaint Ex.P/1. The Investigating Officer PW/7 Bhanwar Singh also has admitted in his cross-examination that the accused, when asked about obtaining the gratification, instantly, denied to accept 150 rupees as bribe and on the contrary, offered an explanation that the complainant had given this money to him to further give the same to his relative at Niwai. The independent witness PW/5 Jivan Singh Rathore has also corroborated the 10 explanation instantly furnished by the accused appellant. The witness has stated thus: "यह बात सही है िक मोके पर मुिल्जम ने उप्-अिधछ्क के पूछने पर 'के से एल' भाग मे िलखा ःपƴीकरण िदया था उपर मैने भूल से अब्दल अजीज Ʈारा ऐसी कोई बात ु कहना समझ कर इंकार िलखाया है. मुिल्जम ने हाथ धुलाने के बाद मे उप्-अधीक्षक को कहा था िक पिरवादी ने वे रुपये िरँतेदार दो देने के िलये कह कर िदये है.” 13. Similarly, PW/3 Shri Surendra Kumar, Head Constable has also corroborated this fact in the following terms: “यह बात सही है िक मोके पर मुिल्जम ने मोके पर यह कहा था िक पिरवादी ने उसे वह रकम उसके िरँतेदार फमर् करीम बक्श अलादीन िनवाई को देने के िलये िदये है.” 14. From the evidence of witnesses PW/1 Abdul Aziz, PW/2 Harlal, PW/3 Surendra Kumar Singh, PW/5 Jivan Singh Rathore and PW/7 Bhanwar Singh, it is now well established that the accused appellant, immediately after trap, offered the aforesaid explanation wherein the appellant denied to obtain the amount of Rs.150/- as bribe but received that money under this impression that it was to be further handed over to firm Karim Bakhsh Alladin resident of Niwai. 15. In the case of Punjabrao Vs. State of Maharastra (2002 (10) SCC 371) the Hon'ble Apex Court has held thus: “it is too well settled that in a case where the accused offers an explanation 11 for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. (emphasis supplied) 16. In Chaturdas Bhagwandas Patel v. The State of Gujart (AIR 1976 SC 1497), this Court held that: “the burden that rests on an accused to displace the statutory presumption that is raised under Section 4(1) of the Act, is not onerous as that cast on the prosecution to prove its case. But such burden has to be discharged, by brining on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as is referred to in Section 161, IPC.” (emphasis supplied) 17. In the case of Punjabrao, a patwari was on a campaign to collect loan amounts due to Government. The complainant therein was admittedly a debtor to the Government. The accused explained that the amount in question was received towards loan. The Hon'ble Apex Court accepted this explanation and held that the appellant had established the defence by preponderance of probability and thus acquitted him. In the instant appeal, also the appellant has also instantly denied to obtain the bribe money and immediately offered this explanation 12 that the complainant had parted with this money to further hand over to firm Karim Bakhsh Alladin at Niwai. At the cost of repetition, the accused belongs to Niwai from where he comes on duty at Devli and goes back to village after performing his official duty. The accused has not only claimed ignorance in his statement under Section 313 Cr.P.C but has submitted the written explanation also in defence. The accused has adduced five witnesses in defence and DW/4 Imamuddin, who is the owner of firm Karim Bakhsh Alladin has stated that Nijammudin is his son. He has also stated that the complainant Abdul Aziz used to frequently come to his shop. The complainant raised Rs.150/- from his son Nijammudin to meet out his essential expenses and Nijammudin gave this money to him. Abdul Aziz also promised to return this amount within five or ten days. The accused Ram Rai also visits his shop and he has a permanent account there. The witness has furnished the relevant entries of the account of the accused appellant Ram Rai which has been exhibited as Ex.P/28A. The learned Special Judge has not believed the explanation pf the accused offered immediately after trap and the corroborative statements of the prosecution witnesses in this regard. He has also not relied upon the evidence of DW/4 Imammudin. The learned Special Judge has cursorily observed in a slipshod manner that the evidence of DW1/ 13 Kailash Chand, DW/2 Nand Lal, DW/3 Ram Pal and DW/4 Immamudin is not sufficient to rebut presumption raised under Section 4(1) of Act, 1947. The learned Special Judge has also not assigned any reason not to believe the explanation offered by the appellant as also the testimony of defence witnesses. 18. 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.” 19. Thus, it is well settled that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. Since no work of the complainant was pending with the accused appellant with regard to mutation of land and no paper in this regard is found to have been recovered from his possession and no papers of mutation of land were ever sent by concerned Patwari to the accused for verification (on the contrary, it is found that the mutation papers were directly sent by the concerned patwari to Nayab Tehsildar way siding the Land Record Inspector (the accused). Thus, there being no 14 occasion for the accused to demand the bribe from the complainant, I am constrained to hold the evidence of the complainant PW/1 Abdul Aziz untrustworthy and unworthy of credence. The explanation offered immediately after the trap by the accused appellant seems to be reliable and worthy of credence. In the ultimate analysis, it is held that the demand of bribe is very material in trap cases. Once the story of demand falls through, the authenticity of trap becomes highly doubtful because acceptance of bribe germinates through demand. The prosecution has failed to prove against the appellant both the demand and acceptance of bribe of Rs. 150/- from the complainant beyond reasonable doubt. The impugned judgment of the trial Court is not found to be cogent, just and proper. The learned Single Judge has erred in ignoring the probable explanation offered by the appellant which in the facts and circumstances of the case stands fully established by preponderance of probability. I do not concur with the finding of conviction arrived at by the learned trial Court and the same deserves to be set aside. 20. For these reasons, this criminal appeal is allowed and the conviction and sentences awarded to the accused-appellant Ram Rai S/o. Narayan Lal by-caste Balai, resident of Niwai, District Tonk vide impugned judgment dated 15 February 21, 1986 are set aside. Instead, the accused-appellant is acquitted for the offences under Section 161 of I.P.C. and Section 5 (1)(d) (2) of the Prevention of Corruption Act. The accused-appellant is on bail, as such, his bail bonds stands discharged. (MAHESH BHAGWATI)J. PCG