-1- IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR J U D G M E N T Ganpat Lal Vs. State of Rajasthan S.B.CRIMINAL APPEAL NO.216/2000 against the judgment dt.2.5.2000 passed by the Special Judge, Sessions Court (P.C.Act), Jodhpur, in Sessions Case No.145/97(8/95). Date of Judgment: Aug.05, 2008 P R E S E N T HON'BLE MR.JUSTICE DEO NARAYAN THANVI Mr.S.R.Sharma, for the appellant. Mr.Vishnu Kachhwaha, Public Prosecutor. BY THE COURT : 1. This is an appeal against the judgment of the learned Special Judge, Sessions Court (Prevention of Corruption Act), Jodhpur dated 2.5.2000, whereby he convicted the accused appellant Ganpatlal u/sec.13(1)(d) read with Sec.2 and Section 7 of the Prevention of Corruption Act, 1988, hereinafter referred-to as “the Act” and sentenced him to two years' R.I. and a fine of Rs.3000/- and in default, to further undergo six months' R.I. on -2- each count. Both the substantive sentences were ordered to run concurrently. 2. The prosecution story is that a written report Ex.P.1 was lodged before the Additional Superintendent of Police, Anti Corruption Department, Jodhpur by one Deva Ram on 10.2.95 that a khatedari land bearing Khasra No.689/2 is situated at village Bhavad in the name of his uncle Kalu Ram. Since his uncle Kalu Ram is old and doing worship of `Mataji Mandir' and having no issue, he being his nephew, is looking after his uncle's social and family responsibilities. The land is situated on the road and its `tarmim' is due. For this purpose and also to obtain the copies of `Jamabandi' and `Girdawri', he met with the `Patwari' of Bhavad viz; accused Ganpat Lal on 9.2.1995, upon which the accused appellant told that his uncle had got this land free of cost, therefore, he was required to pay Rs.32,000/- for the same and ultimately, the amount of Rs.25,000/- was settled for the aforesaid purpose. On the basis of this report, the Additional S.P. told complainant to bring the amount of Rs.25,000/- on 11.2.95 and on that day, when the complainant appeared before him, he arranged for the trap by calling motbirs Jagannath and Nathmal. The Additional S.P. signed fifty currency notes of Rs.500/- each with his initials by smearing the same with the phenolphthalein powder. Necessary instructions were given for the trap to the -3- complainant. The trap party reached at the residence of accused appellant, where accused met. Dy.Superintendents of Police Damodar Vyas and Parbat Singh caught hold of both the hands of the accused. Upon asking, the accused appellant admitted to have received Rs.25,000/- but said that he has not accepted the bribe of Rs.24,000/- and handed over Rs.1000/- to Deva Ram back. Thereafter, hands of the accused appellant were washed, the colour of which turned into pink, which were sealed in bottles marked R-1 and R-2 and L-1 and L-2. The currency notes were taken out by motbir Jagannath from the pocket of accused appellant Ganpat Lal, which were forty eight of Rs.500/- each having initials of Addl.S.P. The amount of Rs.1000/- which was returned by accused appellant Ganpatlal and other documents relating to trace map and Jamabandi, were taken in possession from the complainant. Thereafter, the sanction was obtained and accused appellant was challaned u/s.7 and 13(1)(d) read with Sec.13(2) of the Act. The accused was charged accordingly to which he pleaded not guilty. The prosecution examined 8 witnesses. The statement of the accused was recorded u/s.313 CrPC. He produced Kalu Ram, DW 1 and Gordhan, DW 2 in his defence. After hearing the arguments, the learned trial Judge convicted and sentenced the accused appellant as above. -4- 3. It has been vehemently argued by the learned counsel for the appellant that whole trap proceedings are concocted and false because it has been admitted by Deva Ram that he filed the report on 10.2.95 but the same was returned to him in absence of money and he filed the report on 11.2.95 but the report is of 10.2.95 being antedated. There is no evidence of return of Rs.1000/- back to complainant. It is highly improbable that a Patwari (accused appellant) will demand a sum of Rs.25,000/- for issuing copies of Jamabandi, Girdawri etc. from his fellow Patwari (complainant). Learned counsel submits that the field was in the name of Kalu Ram, and Deva Ram (complainant), who is the nephew of Kalu Ram, was not having good relations with his uncle and he wanted to snatch the amount of Rs.25,000/- which was the money of Kalu Ram to be handed over to the purchaser Gordhan, DW 2 of the said land through accused Ganpatlal upon whom he was having trust. This Kalu Ram, who is the owner of the land, has been withheld by the prosecution and on the contrary, he has been produced by the defence alongwith the person to whom he handed over this money viz; Gordhan, DW 2. According to the learned counsel, when the mutation and the `tarmim' took place prior to the trap, there was no occasion for having any pending work and nobody will pay Rs.25,000/- for issuing copies of those papers. According to the learned counsel, the complainant Deva Ram is having a -5- bad record. He has been prosecuted in some forgery case and to snatch the money of his uncle, he arranged this false trap by bringing money from someone else, who has not been produced by the prosecution. In support of his contention, he further submits that one of the motbirs is hostile and two superintendents of police viz Damodar Vyas and Parbat Singh have not been examined by the prosecution. Thus, the case of the prosecution according to the learned counsel suffers from infirmities and the order of conviction deserves to be set aside. 4. Per contra, learned Public Prosecutor has supported the judgment of the trial Court and submitted that as per the statement of Tehsildar PW 4 Chuna Ram, the patwari was not authorized to make `tarmim' in the revenue record. He further submits that the recovery has been made on the spot, therefore, the case is proved, despite minor infirmities. 5. Having re-appreciated the evidence on record, firstly, it reveals from the statement of Deva Ram, PW 1 that he went to the accused Patwari Ganpatlal on 9.2.95 for site demarcation of Khasra No.689/2 and he demanded an amount of Rs.32,000/-, which was later on agreed to be Rs.25,000/-. Since he did not like to give bribe, he went to the Addl.S.P., Anti Corruption Department on 10.2.95 and narrated the said facts, who told to -6- arrange for the money and to come back on 11.2.95 and thereafter the trap was arranged. When this witness was cross examined, he said at page 12 of his statement that he lodged the FIR Ex.P.1 on 10th but on that day, the report was returned to him with the direction to arrange for the money. Then he again went on 11th at 9 A.M. and submitted report. Thereafter, the trap was arranged but the report Ex.P.1 reveals that it was handed over on 10.2.95 itself and the police proceedings were initiated for sending the motbirs on the very day i.e.10.2.95. Thereafter, when the motbirs came, there is an interpolation in the date from `11' to `10' and time has also been interpolated from `1.45 PM' to `3.45 PM' by directing the motbirs to be present on 11.2.95 at 9 AM. This creates doubt as to whether the report was given on 10th or 11th Feb.1995. 6. Secondly, as per the statement of Deva Ram, who himself is a Patwari, he arranged this amount from Durga Ram Mali on 10th, as he was having no money in his account but this Durga Ram Mali of Ummed Nagar has not been produced by the prosecution. 7. Thirdly, he has said that his uncle Kalu Ram told him to do legal work through accused Patwari, as the land belonged to Kalu Ram but this Kalu Ram, who was the witness of the prosecution, -7- has not been examined by the prosecution and on the contrary, he has been produced by the defence as DW 1, in which he has stated that the disputed land belonged to him and he agreed to sell it through Gordhan and Nena Ram. The part of the amount was paid to him as advance and Rs.25,000/- were paid to Deva Ram, his nephew (PW 1) with the understanding that this amount will be paid to accused Ganpatlal, who was Patwari at Bhavad, as he was having trust over him, which he did not receive back from Deva Ram. Since the land was belonging to the member of the scheduled caste, therefore, this transaction was cancelled. He asked the concerned purchasers to hand over the amount to Ganpatlal because he was having no trust on his nephew Deva Ram. There is no substantive cross on the statement of this witness with his previous statement recorded by the police and on the contrary, Gordhan, who was the purchaser of the said land, has said that he paid Rs.25,000/- in addition to advance of Rs.11,000/- to Deva Ram because Kalu Ram was not available at that time. Thereafter, this amount was returned to him by Kalu Ram by selling it to the other person, as they could not have purchased it being the land of scheduled caste. These statements of Kalu Ram and Gordhan falsify the version of Deva Ram that he accepted the money and paid it to accused appellant on behalf of Kalu Ram, who was the khatedar of the land, especially when Kalu Ram stated in the cross -8- examination that he had become saint and his nephew was not acting as per his directions after the death of his brother and he was having trust over accused appellant Ganpatlal, therefore, he asked the purchasers to give the amount to Ganpatlal. These statements of the complainant and the landholder Kalu Ram, supported by the statement of purchaser Gordhan, DW 2, clearly indicate that there was no demand from the side of accused appellant Ganpatlal for obtaining bribe in consideration of doing `tarmim' of the field and giving of copies of Jamabandi, Girdawri etc. 8. Fourthly, coming to the pending work with the accused appellant Ganpatlal of the complainant Deva Ram or of his uncle Kalu Ram, DW 1, with regard to mutation, `tarmim' or getting copies of the documents, it is clear from the statement of complainant Deva Ram himself in his cross objection at page 12 that mutation of the land of his uncle was done by the partwari on 4.1.95, which was verified by the Inspector on 25.1.95 vide Ex.D.1 and on the back, it is written that `tarmim' has taken place, whereas this complaint has been filed on 10.2.95 i.e. after execution of work. In this regard, Chuna Ram, PW 4, who was the revenue inspector at the relevant time, has stated in his examination in chief that as per his memory, there was no direction for doing `tarmim' of the land to accused patwari -9- Ganpatlal in the trace map. When he was cross examined on this point, he hold that this was being done by virtue of Rule 59 of the Land Revenue Rules by which `tarmim' in the map will be made by the patwari with pencil and the Inspector will do it with the red ink. The original map is the `lathha' (cotton map) which has been seized by Ashok Patni, PW 6 vide Ex.P.16. Learned counsel for the appellant has taken me through the original map in which the demarcation has been made on this cloth with the red ink pertaining to Khasra No.689/2. This record was seized vide Ex.P.16 on 12.2.95. When prior to the trap, the mutation was done and `tarmim' was made with red ink in the trace shown in the cotton map, it clearly denotes that there was no work pending at the time of trap with the accused appellant and it is highly improbable to believe that one will demand such a huge amount of Rs.25000/- for a petty work of getting the copies of certain documents, especially by a patwari of the same area from his fellow partwari, who is said to be the nephew of the land holder, who was having no trust upon him, especially when the complainant patwari is having a criminal record in a case u/ss.420 & 467 IPC, when he was suspended in the year 1996. This shows that this trap has been arranged with some ulterior motive by the complainant Patwari Deva Ram, PW 1. -10- 9. Here in the present case, as discussed above, antedating the F.I.R. from `11' to `10' by making interpolation in the entries of date and time; non-examination of person from whom the complainant arranged Rs.25000/- viz; Durga Ram Mali, denial by the holder of the land Kalu Ram for handing over the money to Devilal in consideration of agreement to sale for the field; non-pendency of the work on account of there being mutation and `tarmim' in the field prior to the trap; no trust over the complainant by the holder of the land Kalu Ram coupled with the criminal record of the complainant; non-examination of the two material witnesses of the Dy.S.P. rank viz; Damodar Vyas and Parbat Singh, are such factors, which inspire no confidence in the trap proceedings. In the absence of demand and non-pendency of the work, the finding of the learned trial Court, which is based on the presumption u/s.20 of the Act, is also untenable. So far as Sec.13(1)(d) of the Act is concerned, there cannot be any presumption for accepting gratification, other than the legal remuneration by a public servant. This presumption can be raised only u/s.7 or Sec.11 or cl.(a) or cl.(b) of sub-sec.(1) of Sec.13 of the Act. Here in the present case, the learned trial Judge has wrongly drawn presumption u/s.13(1)(d) of the Act. However, while drawing presumption u/s.7 of the Act, the defence has successfully proved it to the contrary. -11- 10. In the light of the above discussion, the conviction recorded by the learned trial Judge cannot be sustained. 11. Consequently, this appeal is allowed. While setting aside the judgment of the learned Special Judge, Sessions Court (Prevention of Corruption Act), Jodhpur dated 2.5.2000, convicting the appellant Ganpatlal u/sec.13(1)(d) read with Sec.13(2) and Section 7 of the Act & sentencing with two years' R.I. and a fine of Rs.3000/- and in default, to further undergo six months' R.I. on each count, he is acquitted for the above charges. He is on bail, his bail bonds stand cancelled. (DEO NARAYAN THANVI), J. RANKAWAT JK, PS