Kalyan Dutta Sharma, J. - (1.) This is an appeal preferred by Shiv Lal against the judgment of the Special Judge (Anti-Corruption Cases) Rajasthan, Jaipur, dated August 22, 1975, by which the appellant was convicted under section 5(2) read with section 5 (1) (d) of the Prevention of Corruption Act, hereinafter referred-to as the Act, and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default of payment of fine to further suffer rigorous imprisonment for three months.
(2.) The incident that led to the prosecution of Shiv Lal appellant may be briefly narrated as follows:- On June 5, 1973, Shiv Lal was an employee of the Excise Department at Sri Ganganagar. Being a public servant within the meaning of Section 21, I. P. C. and working as a Mohrir in the office of the Excise Inspector, Sri Ganganagar, he accepted a bribe of Rs. 15/-from Shri Gurbachan Singh son of Shri Ranga Sikh outside the office of the Excise Inspector as a motive for releasing his bicycle which was seized in a case against Gurbachan Singh and thereby committed an offence punishable under section 161,1. P. C. As the appellant obtained for himself an amount of Rs. 15/-, from Shri Gurbachan Singh outside the office of the Excise Inspector by corrupt and illegal means and by abusing his position as a public servant, he was charge-sheeted under section 5 (1) (d) read with section 5 (2) of the Act. Gurbachan Singh was arrested while he was carrying illicit liquor on a bicycle on June 3, 1973. The Excise Inspector Shri Mangal Singh caught him red handed and seized the illicit liquor and the bicycle on which it was being carried. In order to get his cycle released Gurbachan Singh contacted the appellant on June 4, 1973 and requested him to get the cycle released. The appellant demanded a sum of Rs. 40/-, as bribe for the release of the cycle, but Gurbachan Singh expressed his inability to pay the sum of Rs. 40/-, and requested the appellant to accept a lesser amount. The appellant, however, agreed to accept a sum of Rs. 15/-, for that purpose. As Gurbachan Singh was not willing to part with that amount, he approached the Additional Superintendent of Police, Anti-Corruption Department at Sri Ganganagar. The Additional Superintendent of Police was not available at Sri Ganganagar. So he met the Superintendent of Police, Sri Ganganagar and presented an application Ex. 1 before him the very day on June 4, 1973. The Superintendent of Police asked the Deputy Superintendent of Police Mr. Surolia to arrange a trap. Mr. Surolia read over the contents of the application Ex. P. 1 to Gurbachan Singh and obtained a sum of Rs. 15/-, from him in the presence of Raja Ram and Ram Singh Motbirs. The currency-notes were then initialled by the Deputy Superintendent of Police on June 5, 1973, and were handed over to Gurbachan Singh after getting them dusted with phenolphthalein powder in the presence of the aforesaid Motbirs. He then arranged a trap the very day on June 5, 1973, and gave necessary directions to the decoy to give the initialled currency notes to the appellant on his demand and thereafter to give a prearranged signal. The Deputy Superintendent of Police and his staff members accompanied by Motbirs took their positions near the office of the Excise Department and waited for the prearranged signal. Gurbachan Singh entered the office of the Excise Inspector and after a short while came out of the office along with the appellant and thereafter passed over the initialled currency-notes of Rs. 15/-, to the latter. Gurbachan Singh then gave the prearranged signal which attracted the Deputy Superintendent of Police and the Motbirs to the place where bribe was given. The Deputy Superintendent of Police Shri Surolia disclosed his identity to the appellant and asked the latter to produce the initialled currency notes which he had taken as bribe from Gurbachan Singh. The appellant took out currency notes of Rs. 15/-, from the pocket of his bush shirt which he was wearing on his body and produced them before the Deputy Superintendent of Police. The Deputy Superintendent of Police inspected the currency-notes and found that their numbers tallied with the numbers of the currency notes mentioned in the memo which he had prepared at the time of handing over the initialled currency-notes to the decoy. The Deputy Superintendent of Police then got the hands and pocket of the bush shirt of the appellant washed in sodium carbonate mixture which was prepared then and there. The hands and pocket of the appellant upon being washed were found positive for phenolphthalein. The washes were preserved and sealed in three bottles Articles 4, 5, and 6 and necessary memos containing details of the proceedings marked Ex. P. 5, P. 6, P. 7 and P, 8 were prepared at the spot in the presence of Motbirs. The appellant was arrested vide memo Ex. P. 9. The Deputy Superintendent of Police prepared a site-plan also and took a file of the Excise Department relating to the excise case, in which Gurbachan Singh was involved, in his possession. After obtaining necessary sanction for the prosecution of the appellant and collecting other necessary evidence the Deputy Superintendent of Police filed a charge-sheet against him in the court of the Special Judge, Anti-Corruption Cases under section 161, I. P. C. and under section 6 (2) read with S. 5 (1) (d) of the Act. The Special Judge for Anti-Corruption Cases tried the appellant for the aforesaid offences and upon conclusion of the trial and hearing final arguments in the case, came to a conclusion that the appellant did not accept the amount of Rs. 15/-, from Gurbachan Singh as bribe but obtained the same by corrupt and illegal means and by otherwise abusing his position as a public servant on the pretext that the amount was to be spent by him for initiating proceedings in the court for getting the cycle released. The Special Judge accordingly acquitted the appellant of the offence punishable under Section 161, I.P.C. and convicted and sentenced him under section 5 (2) read with Section 5(1) (d) of the Act, in the manner stated above. 4. I have carefully perused the record and heard Mr. N.K. Sharma for the appellant and Mr. Shivraj Behari Mathur, Public Prosecutor for the State. It was strenuously urged before me by the learned counsel for the appellant that the prosecution utterly failed to make out a case under section 5 (3) read with section 5 (1) (d) of the Act against the appellant. It was further urged that the Special Judge ignored the explanation of the appellant which he gave regarding the purpose for which he accepted the amount of Rs. 15/-, and committed a grave error of law in drawing a presumption under section 4 (1) of the Act against the appellant, especially when the prosecution could not succeed in discharging the burden of proving the allegations levelled against him. Mr. Shivraj Behari Mathur, Public Prosecutor, on the other hand, urged that there is ample evidence on the record to show that the appellant abused his position and by illegal and corrupt means obtained a sum of Rs. 15/-, from Gurbachan Singh on the false pretext that he would spend that sum in getting the bicycle released from the court. 5. I have considered the above contentions. At the outset I may observe that the trial Judge acquitted the appellant of the offence punishable under section 161, IPC. on the ground that the prosecution could not adduce reliable evidence to prove that the appellant accepted the amount of Rs. 15/-, as bribe from Gurbachan Singh decoy. The learned trial Judge, however, came to a finding that the appellant accepted the amount of Rs. 15/-, for incurring an expenditure in initiating proceedings in the court of law for getting the bicycle released. Consequently, he was of the view that the appellant was guilty of misconduct in the discharge of his duty as a public servant inasmuch as he accepted the amount of Rs. 15/-, from Gurbachan Singh by corrupt and illegal means and by abusing his position as a public servant. It is, therefore, necessary to find out upon materials on the record whether the appellant committed an offence of criminal misconduct as defined in section 5 (1) (d) of the Act and whether he was rightly convicted and sentenced for that offence. Gurbachan Singh decoy, P. W. 6, stated in his deposition at the trial that he was held up by Excise Inspector Mangal Singh while he was carrying liquor on his bicycle. The Inspector seized the liquor and the bicycle also. Thereupon, he went to the office of the Excise Inspector and talked to three or four clerks who were sitting therein. The clerks told him that the bicycle would be released by the court and he would have to spend Rs. 15/-, or Rs. 20/- for getting the bicycle released. Gurbachan Singh further stated that he did not want to give a bribe. So he approached Ram Singh, petition writer, and demanded a sum of Rs. 15/-, or Rs. 20/-, from him for the purpose of getting his bicycle released. Ram Singh gave him a sum of Rs. 15/-, and accompanied him to the office of the Excise Inspector at Sri Ganganagar. In the office Gurbachan Singh gave the sum of Rs. 15/-, to the appellant and asked the latter to get the bicycle released from the court. The appellant thereafter was caught by the Deputy Superintendent of Police Anti-Corruption. Gurbachan Singh was declared hostile by the court at the request of the Public Prosecutor. In his cross-examination by the learned counsel for the appellant Gurbachan Singh clearly admitted that he gave the appellant Rs. 15/- for getting the application written for release of the bicycle by the court. He has further admitted that the appellant told him that he would get his cycle released from the court if he assisted him in catching hold illicit wine in one or two cases. Gurbachan Singh promised him to render the required assistance. Ram Singh P. W. 2, also supported the defence version that the appellant had told Gurbachan Singh that an amount of Rs. 15/- at least would be required to be spent in getting the cycle released from the court and Gurbachan Singh gave this sum to the appellant. He further admitted that the appellant told Gurbachan Singh that if the latter assisted him in catching hold of illicit wine in one or two cases, he would soon get his cycle released. The admissions made by Ram Singh in his cross-examination are quoted below in extenso : ...[VERNACULAR TEXT OMITTED]... P. W. 5 Himmat Singh in whose presence the initialled currency-notes of Rs. 15/-, were recovered from the possession of the appellant also supported the version of the defence by stating that the appellant when asked by the Deputy Superintendent of Police, Anti Corruption, as to how he came in possession of those notes, disclosed to the latter that the notes had been given to him by Gurbachan Singh for getting his cycle released by the court. He further made the following admission in his cross examination by the learned counsel for the appellant : ...[VERNACULAR TEXT OMITTED]... 6. It is pertinent to note that this very explanation given by the appellant at the time of recovery of the currency-notes from his possession find a place in the recovery memo Ex. P. 6. Shri Shanker Surolia, P. W. 7, who laid the trap and recovered the initialled currency notes from the pocket of the bush-shirt of the appellant admitted in his cross-examination that he got the explanation of the appellant regarding possession of the currency-notes and recorded it in the recovery memo Ex. P. 6 at its back The explanation given by the appellant at that time to the Deputy Superintendent of Police, Anti-Corruption, P. W. 7 is marked G to H in Ex. P. 6. which reads as follows ; ...[VERNACULAR TEXT OMITTED]... 7. If the explanation given by the appellant is probable and palpably reasonable is rebuts the presumption raised against him under section 4(1) of the Act. Hence the pertinent question that has to be considered is whether the explanation given by him is reasonably probable in the circumstances of the case, especially when the prosecution could not prove the charge under section 161, I. P. C. against him. It is no doubt true that under section 5 (1) (d) of the Act if a public servant abuses his position as a public servant and obtains for himself any pecuniary advantage, irrespective of motive or reward for showing favour, he can be held guilty under section 5 (2) of the Act. The prosecution was, therefore, bound to prove in this case that the appellant was a public servant and he obtained a sum of Rs. 15/-, either for himself or for any other person and that he obtained the same by corrupt or illegal means or by other wise abusing his position as a public servant. Upon careful review of the entire evidence, I am of the opinion that the prosecution failed to establish, beyond reasonable doubt, dishonest intention on the part of the appellant while obtaining a sum of Rs. 15/-, from Gurbachan Singh. It has been held by their Lordships of the Supreme Court in M. Narayanan Nambiar v. State of Kerala, AIR 1963 SC 1116 that the element of dishonest intention is implicit in the word "abuse" and that dishonest intention on the part of the public servant while obtaining a valuable thing or pecuniary advantage for himself or for any other person must be established. The observations made by their Lordships of the Supreme Court on this point are quoted below : "The contention of the learned counsel that if the clause is widely construed even a recommendation made by a public servant for securing a job for another may come within the clause and that could not have been the intention of the Legislature. But in our view such innocuous acts will not be covered by the said clause. The juxtaposition of the word 'otherwise' with the words corrupt' or illegal means', and the dishonesty implicit in the words "abuse" indicate the necessity for a dishonest intention on his part to bring him within the meaning of the clause..." Reference in this connection may also be made to an authority of the Madras High Court Public Prosecutor v. T.K. Viswanathan, 1971 CLJ 573 wherein His Lordship Krishna-swamy Reddy observed in para 19 as follows:- "Thus, it is clear that dishonest intention on the part of the public servant while obtaining a valuable thing is the essential requisite for punishment to be imposed on him for offence under S. 5 (1) (d) of the Act. The dishonest intention has to be inferred depending upon the facts of each case..." As indicated above it transpires from the prosecution evidence itself that the act of the appellant in accepting Rs. 15/-, from Gurbachan Singh may be innocuous, because Gurbachan Singh approached the appellant with the request that he should help the former in getting his cycle released by the Court. It can be further gathered from the prosecution evidence itself that the appellant made it clear to Gurbachan Singh decoy that some money would be required for getting the application for release of the cycle written and for affixing court-fee stamps on it. These facts are admitted by the prosecution witnesses and, therefore, there is no reason to disbelieve them. Hence, the explanation given by the appellant for obtaining a sum of Rs. 15/-, from Gurbachan Singh appears to be probable and palpably reasonable, especially when it was not an after-thought and the appellant gave this very explanation to the Deputy Superintendent of Police, Anti-Corruption, who arranged the trap and who asked the appellant at the time of recovery of the currency-notes from his possession as to how he came in possessions thereof. The explanation, to my mind, negatives the dishonest intention on the part of the appellant in obtaining the money from Gurbachan Singh decoy. There is no evidence on the record that the appellant demanded bribe from Gurbachan Singh immediately before accepting the sum of Rs. 15/-, from the latter or at any time prior to it. Hence, it cannot be safely held upon evidence led by the prosecution in this case that the appellant obtained any valuable thing or pecuniary advantage by illegal or corrupt means or by abusing his position as a public servant. The result of the above discussion is that the appeal filed by Shiv Lal is accepted, his conviction and sentence under section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act is set aside and he is acquitted of the same. The appellant is on bail. He need not surrender to his bail bonds which are hereby cancelled. Sd/- K.D. Sharma, J. Conviction set aside - Appeal allowed.;