- (1.) THIS is an appeal by the accused Ramprasad who has been convicted of an offence under sec. 161 I P. C. and sentenced to a fine of Rs. 1000/- by the Sessions Judge, Ganganagar.
(2.) THE case for the prosecution is as follows. THE accused Ramprasad was a Naib Tehsildar at Lalgarh, District, Ganganagar, and had his headquarters at Ganganagar. THE complainant Kapoor Singh applied to purchased some land near his house but, as he put it, he was unable to get it, as he was not willing to bribe this Naib Tehsildar as also his predecessors before whom the matter was pending. THE accused went to Lalgarh on 15. 12. 52, and sent for Kapoor Singh and told him that he should pay a sum of Rs. 200/-and five maunds of wheat to the accused otherwise the land would be put to auction and the complainant may not by able to get it for even a sum of Rs. 1,000/ -. Kapoor Singh expressed his inability to pay at that and eventually the deal was settled for Rs. 200/-only, and he offered to give that sum to the accused at Ganganagar on the third day, that is, the 17th December, 1955 THE accused left Lalgarh. Kapoor Singh released this story to one Bahadur who was Secretary of the Tehsil Congress Committee, Ganganagar. Both arranged that they would go to Ganganagar together and so they did on the 17th December, 1952. Bahadur wrote an application, Ex. P. 1. , dated 17. 12. 52 to the Zila, Congress Committee, Ganganagar, on behalf of Kapoor Singh, in which he complained that the accused was askin for a bribe as a condition for the acceptance of Kapoor Singh's application, and although he abhorred bribery he was willing to offer a bribe of Rs 200/-to the accused if the money so given were to be arranged to recovered from him through the police, and in the presence of some officer, so that the accused be punished and a lesson administered to such bribe-takers. This application was delivered to Gyaniram who was Secretary of the Zila Congress Committee, Ganganagar, and he forwarded it to Ranjeet Singh who happened to be the Secretary of the City Congress Committee, Ganganagar, with the remark that there was a general complaint against the accused and that it was necessary in the public interest that adequate action be taken against him. This having been done, the complainant went to the house of the accused. On his being asked whether he had brought the money, he told the accused that he would presently give the latter a sum of Rs. 200/- at Ganganagar but send the wheat from Lalgarh latter. THE accused said that he would be at his house for another two hours. Kapoor Singh then went to the shop of Surajmal Banshidhar, and took a loan of Rs. 200/- in ten-rupee notes. It is said that Kapoor Singh again met Bahadur on the way and then they both went to Kachehri where they met Ranjeet Singh. THE latter wrote an application on behalf of Kapoor Singh to the District Magistrate, Ganganagar, requesting him to sign two hundred-rupee notes, Nos, 954393 and 030262, which were intended to be given to the accused as bribe and make arrangements for a trap to catch the accused. Gyaniram and Ranjeet Singh, along with Bahadur, who however, remained outside the District Magistrate's room, saw the District Magistrate Mr. Arora, THE latter initialled the notes and gave them over to Gyaniram and Ranjeet Singh. THE District Magistrate asked Mr. R. C. Oza, Extra First Class Magistrate Ganganagar, to be present at the time of the search of the accused, which was directed to be made by the Deputy Superintendent of Police. Mr. Dixit, Bahadur then asked Kapoor Singh to see if the accused was in his room, and so to, to contact him. Kapoor Singh, finding that the accused was in his room, asked him whether he should give the money to the accused at his house or in the office. THEreupon, it is said, the accused handed him over an envelop Ex. P. 3 (this is an inland letter in Urdu, which was received by the accused from his nephew who was at Delhi, urgently asking him for money) and said that Kapoor Singh might put the money into the envelop and pass it on to the accused in his office. THE complainant accordingly went back and told Bahadur all that had happened, and delivered the envelop to him. After some time, Bahadur gave Kapoor Singh the envelop containing the two hundred-rupee notes, which the latter handed over to the accused. Having done this, Kapoor Singh made a sign to Bahadur of his having performed his part, and the letter passed it on to Ranjeet Singh. THE Extra Magistrate, Mr. Oza and the Deputy Superintendent of Police, Mr. Dixit, who were waiting outside, entered the accused's room and made a search of his person and recovered the two hundred-rupee notes which were the same as had been signed by the District Magistrate. THEse notes were recovered wrapped in the envelop Ex. P. 3. THE complainant lodged a first information report in the police station. Ganganagar, which is Ex. P. 5. THE accused was in due course challaned to the learned Sessions Judge after sanction for prosecuting him had been obtained from the Board of Revenue and has been convicted under sec. 161 I. P. C. as already stated above. The accused pleaded not guilty. He admitted the recovery of the two hundred rupee notes Ex. P-A and P-B from his person, but contended that the story of his having accepted them by way of bribe from Kapoor Singh was false. On the other hand, he gave out the version that his nephew Ramsarandass who was a student in the D. A. V. High School in New Delhi had asked him urgently for a remittance of Rs. 200/- by an inland letter dated 12. 12. 52, and as Kapoor Singh was sitting in his courtroom, the accused asked Kapoor Singh to take the letter, Ex P. 3 along with a Chit, Ex. D-A to the shop of Chetram, a merchant at Ganganagar, for the purpose of getting a sum of Rs. 200/- for him and that Kapoor Singh had brought Rs. 200/- from Chetram wrapped in Ex. P. 3 at about 4 P. M. which the accused had put in his pocket. It was this money, said the accused which was recovered from his person. The accused explained that he had sent Kapoor Singh to fetch the money, as his orderly had remained behind while the accused had returned from his tour, and no other orderly was available at the time. The accused further pleaded that Bahadur was ill-disposed towards him, as he had decided a case against Bahadur regarding some land which he wanted to get. The accused also stated that, in another case; he had held that Bahadur and come other Mukhias of the village had unauthorizedly diverted the canal water into a Talao at Lalgarh, and he had recommended that a fine be imposed on all on them. The accused further contended that Chowdhri Motilal, an M. L. A. , and Bahadur had tried to exercise undue pressure upon him in connection with the above two cases on 22. 11. 1952, and behaved rudely towards him in his office, and in support of his strained relations with the highlights of the village, the accused produced certain record and an entry in his Roznamcha of the happenings on the 22nd November 1952, and pleaded that the whole case had been cooked against him because he had incurred the displeasure of Bahadur and his friends. The prosecution produced nine witnesses in support of its case. Of these the main witness upon whom the case for the prosecution principally rests is the complainant Kapoorsingh. I have already related the gist of his evidence while stating the case for the prosecution. Witnesses as to the recovery of the sum of Rs. 200/- from the person of the accused, which is admitted, are P. W. 8. Mr. Ramchandra Oza. the Extra First Class Magistrate. P. W. 6 Mr. Dixit, the Deputy Superintendent of Police. Ranjeet-singh, P. W. 5 the Secretary of the City Congress Committee, Ganganagar, and Bahadur, P. W. 2, Secretary of the Tehsil Gangangar Congress Committee. P. W. 3, Banshidhar, is the proprietor of the firm Surajmal Banshidhar from whom Kapoorsingh borrowed the sum of Rs. 200/-, all in ten-rupee notes. P. W. 9, Mr. Arora, is the District Magistrate with whose assistance the trap was laid and who had signed the two hundred-rupee notes Ex. P-A and P-B, which were subsequently recovered from the person of the accused. Mr. Chandarsingh P. W. 7 another Naib-Tehsildar, who used to sit in the same room as the accused and who was also present at the time the recovery was made, was allowed to be cross-examined by the prosecution at the trial. P. W. 4 Sewasingh merely gave evidence to show that he had changed twenty ten-rupee notes into two hundred-rupee notes at the request of Ranjeetsingh. This is a resume of the evidence for the prosecution. On the side of the defence, we have the accused's own statement in which he states to have disclosed at the very time when he was searched that the two notes recovered from him had been obtained by him from the Bazar and that he had asked Kapoorsingh to go to P. W. Chetram for the purpose. As Kapoor Singh was sitting in the accused's room for some time, the latter questioned him why Kapoorsingh was sitting there. Kapoorsingh replied that he had came there in connection with his case. The accused said that he told Kapoorsingh that as he had not offered any evidence, the accused would send his case to the higher authorities with such recommendation as was called for. On Kapoorsingh offering to go, the accused told the former that there was yet time for his bus to leave and that he might in the meantime deliver a letter and a chit to Chetram at his shop. The accused also explained that as he had only just returned from the tour and as his orderly had remained behind and no other orderly was available, he had utilized the services of Kapoorsingh for the purpose. The most important witness produced by the defence is D. W. 1 Chetram who testified to the fact of Kapoorsingh having come to him with the letter, Ex. P-3 and the chit, Ex. D-A, as a result of which the witness gave Kapoorsingh two hundred-rupee notes to be taken to the accused. This witness also stated that Kapoorsingh was known to him from before and that he had also given a loan of Rs. 60/-to the Naib Tehsildar some time ago, and produced relevant entries from his account-books in support of his statement. Ex. DB-1 is a copy of the entry of Rs. 200/- from Chetram's Kachi rokar bahi. Ex. DG-1 is a similar entry relating to the loan of Rs. 60/-and is dated the 25th of September, 1952. The next witness produced by the defence is D. W. 2 Ratiram from whom Kapoorsingh is said to have purchased some timber on 17th December, 1952. The witness also produced a cash memo DD-1 for a sum of Rs. 97/14/ -. D. W. Sultansingh is another witness produced by the defence to show that the complainant purchased timber from Rati-ram's shop. I have thought it proper and desirable to put in a nut-shell in a brief out-line of the evidence for the prosecution and for the defence at the outset, as this enables us to have some idea of how well-matched the versions of the prosecution and the defence appear to be in the present case. The learned Sessions Judge believed the story put forward by the complainant Kapoorsingh, supported mainly by Bahadur and thought fit wholly to reject the defence version, and came to the conclusion that the accused had accepted Rs. 200/- from Kapoor Singh by way of illegal gratification. The important factors which led the learned Sessions Judge to come to the conclusion to which he did were that the accused did not say at the earliest opportunity that he had borrowed the money from P. W. Chetram, that the latter, could not be expected to give a sum of Rs. 200/- to Kapoorsingh without taking his signatures, that it was strange that Kapoorsingh's services were utilized for getting the money from Chetram, and that the cash-memo produced by Ratiram was a false and forged one and prepared merely to help the accused. Having carefully listened to the arguments of Mr. Sethi, learned counsel for the accused, I have arrived at the conclusion that there are some important features of this case, which have not received that attention from the learned Sessions Judge, which they seem to deserve. The first and foremost point which deserves to be borne in mind is that this whole case depends upon the direct testimony of Kapoorsingh, the complainant. A careful analysis of the evidence of this witness shows that this conduct has not been as straightforward as one would wish it to be in order that unhesitating reliance be placed upon his testimony. In the first place, it appears from the first information report filed by Kapoorsingh that the bargain settled with the accused was in respect of the payment of the sum of Rs. 200/- only and that the demand of the accused for five maunds of grain had been dropped at the importunities of Kapoorsingh. In this statement at the trial, Kapoorsingh deposed to the effect that when the Naib Tehsildar had asked the former whether he had brought what he had promised, he replied that he would give the accused the sum of Rs. 200/- presently but that he would send the wheat from the village. Now, it is surprising that Kapoorsingh should have still undertaken the responsibility to send the grain when according to him, it had been settled with the accused that all that Kapoorsingh would have to pay was a sum of Rs. 200/- only. Another point on which Kapoorsingh seems to have lied is that he borrowed a sum of Rs. 200/-from Banshidhar Surajmal in two hundred-rupee notes. This is what Kapoorsingh has stated in his first information report. The evidence of Banshidhar itself shows that he had given the sum of Rs. 200/- to Kapoor Singh all in ten-rupee notes. According to the prosecution story, as it was built up latter, the sum which was borrowed from Banshidhar in ten-rupee notes was subsequently got converted by Ranjeetsingh from Sewasingh into hundred-rupee notes. If that was so, in my opinion, there was no need for Kapoor Singh to have stated in the first information report the particular details in the manner in which he did, viz. that he had borrowed the money from Banshidhar in two hundred-rupee notes It is also remarkable that the money was paid to the accused in his office where, according to Kapoorsingh, there were one or two strangers at that time. It is, in my opinion, unusual for a bribe to be given or accepted in an office in the presence of some other persons. It is also in evidence that the other Naib Tehsildar, Sri Chandersingh, used to sit in the same office and was very probably sitting there at the time money was offered to the accused. According to the story related in the first information report, when Kapoorsingh gave the accused the alleged bribe, the accused put it in a letter and then kept both in his pocket. It is clear from what has been stated in the first information report that the letter in which the money was found was in the possession of the accused himself at the time the money was given and in which the accused wrapped and kept it. The first information report nowhere shows that the accused had given any letter such as Ex P-3 to Kapoorsingh earlier than at the stage when the accused accepted the money and put it in the letter which was no other than Ex. P-3. It is, however, a fact which admits of not the slightest dispute or doubt that the accused had given the letter, Ex. P-3, to Kapoorsingh himself very much earlier, and the prosecution story developed at the trial is that the accused had given that letter to Kapoorsingh so that the latter might put the money therein and had it over to the accused. It is necessary to point out in this connection that the fact that Kapoorsingh was given this letter is proved to the hilt by the evidence of the District Magistrate, Mr. Arora. P. W. 9, who clearly stated in his cross-examination that Ex. P-3 had been shown to him and that Ranjeetsingh had stated that they would put the notes into that letter and pass them on to the accused. This is further corroborated by Ex. P-10 by which the District Magistrate authorised the First Class Extra Magistrate and the Deputy Superintendent of Police to effect the search and make the necessary recovery. There is, therefore, no doubt whatsoever that Kapoorsingh had got into possession of this letter much earlier than at the time he handed over the money to the accused. If that was so, the question arises why was Kapoorsingh trying conceal this fact when he laid the complaint against the accused in his first information report and put forward a garbled version to show as if the letter in which the money was found had never come into his possession and was merely pulled out by the accused from his pocket when Kapoorsingh gave him the money. This behaviour on the part of Kapoorsingh is enough, in my opinion, to show that he is not the type of witness upon whom implicit reliance can be placed His conduct further shows that he was acting as a sort of an instrument in the hands of Bahadur, Gyaniram and Ranjeetsingh and these latter persons were doing all that they liked. It further appears to me that Kapoorsingh himself did not go to the District Magistrate. The persons who went to him were Gyaniram and Ranjeetsingh, and Bahadur also accompanied them but waited outside. I cannot help stating here that it should have been highly desirable if the District Magistrate should have asked for the presence of the complainant himself and had Kapoorsingh's version at first hand, rather than simply relying on what Gyaniyam and Ranjeetsingh had told him. There is plenty of evidence on the record to show that all was not well between the accused and Bahadur and his companions. The accused had occasion to make some adverse report or recommendations against Bahadur in connection with the latter's case for the purchase of some land near his own house and also in connection with the diversion of the canal water into the Talao at Lalgarh. The possibility, therefore, cannot be ruled out that these persons would do all that lay in their power to teach a lesson to the accused. It is difficult to resist this impression because while Kapoorsingh had stated in his first information report that even the predecessors of the accused had asked for bribe, he was not able to mention the names of any of them or the amount which any one of them wanted to be paid. Asked whether Sultan was present on that day in Gangana-gar, Kapoorsingh stated at one place that he did not know whether he saw Sultan at Ganganagar or not on that day; but earlier he had stated that he did remember that Sheokaran and Sultan were both at the shop of Bahadur when he went to borrow money at Bahadur's shop. From what I have stated above, it clearly appears that Kapoorsingh is not a very trustworthy witness and that his evidence cannot be accepted without any independent corroboration. Turning now to the evidence of P. W. 2 Bahadur who is the next most important witness for the prosecution, it is true that he repeats all what Kapoorsingh stated to Bahadur; but it is to be remembered that Bahadur was not present at the time any talk took place between accused and Kapoor Singh. Bahadur appears to have taken a very prominent part in obtaining assistance from his colleagues viz. Gyaniram and Ranjeet Singh in the matter and also went to the office of the District Magistrate where, however, he remained outside. It is further clear that Kapoorsingh had given the envelop Ex. P-3 to Bahadur who later passed it on to Ranjeetsingh, and Ranjeetsingh and Gyaniram than took it to the District Magistrate and showed it to him. Bahadur further says that Ranjeetsingh had said that he had shown the envelop to the District Magistrate whereupon the former put the two hundred-rupee notes into the envelop and handed them over to Kapoorsingh who was sitting under a Peepal tree, and asked him to hand them over to the accused and make a sign after the money had been paid. From the evidence of this witness also, it is clear that the envelop or the letter Ex. P-3 had come into possession of Kapoorsingh and his associates much earlier in the day than four C' clock when the money was paid to the accused. When this witness was asked in cross-examination whether the accused had occasion to make any adverse report against him, the witness stated that he had no knowledge. He completely denied to have eve-met the accused in that connection. He also denied to have had anything to do with the accused in connection with his application for land and said that he never had any talk with the accused in that connection. When he was confronted with his statement along with some other witnesses (Ex. D-l), he was forced to admit that he had given that statement and that it bore his signatures. This statement related to the diversion of the canal water to the Talao at Lalgarh. Similarly, he had also to admit that Ex. D-2 was his state ment which had been recorded by the accused in connection with his application for purchase of certain land near his house. It also appears from the final report sent by the accused that he had made a recommendation on the 13th May, 1952, that a fine be imposed for the unlawful filing of the Lalgarh Talao in order to teach them a lesson. In my opinion, Bahadur is also a witness who has no regard for truth and he has lied on certain very ordinary points and does not afford any corroboration to the testimony of Kapoorsingh. He has ofcourse stated that Kapoorsingh had told him that the accused had passed on the envelop Ex. P-3 to Kapoorsingh for the purpose that the latter might put the amount of the bribe in it, but it is difficult to rely on the word of Bahadur himself from the reasons stated above, and it is not free for doubt whether Kapoorsingh was really telling the truth in this respect or that it was a story built up by these two witnesses once they had got into possession of Ex. P-3 which the accused had undoubtedly given to Kapoor-singh. This brings us to the most important part of the case viz. , whether the accused had passed on the letter Ex. P-3 for the purpose of taking it over to Chetram for obtaining a loan from him or whether the former had merely given it to Kapoorsingh in order that he may put the amount of the bribe therein and pass it on to him. I have already stated above that the version of Kapoorsingh on this point has not been very consistent. What he stated in his first information report is not supported by the case which has been built up at the trial. A careful consideration of the entire prosecution evidence leads irresistibly to the conclusion that the accused had given Ex. P-3 to Kapoorsingh some good time before the money was brought by Kapoorsingh to him. The only question is for what purpose did the accused give this letter to Kapoorsingh. The prosecution case is that the accused gave it so that Kapoorsingh might put in the money in the envelop and hand it over to the accused in the office. The case of the defence is that the accused gave the letter to Kapoorsingh to take it to Chetram so that the latter may know the urgency of the purpose for which the accused required the money. The accused further says that he gave a call in the name of Chetram that the latter might send the sum of Rs. 200/- to the former through Kapoorsingh. Chetram has come into witness box and supported the story. He also produced his account-books and the chit Ex. D-A from the accused The learned Sessions Judge was obviously of the opinion that these entries could be made at any time. Nothing has, however,been elicited from the cross-examina-tion of D. W. Chetram that these entries were forged or fictitious. It also appears that the accused once before obtained a loan of Rs. 60/- from Chetram. Now, while I have no hesitation in saying that the accused was most ill-advised in sending a person who had a case before him to go on an erred like the one to which the accused put him, and 1 cannot deprecate too strongly what the accused did, it cannot be said that that by itself excludes the possibility of Kapoorsingh having been sent for the purpose and merely because the accused made an improper use of the services of Kapoorsingh for going to Chetram's shop and getting some money for him from Chetram, it cannot be postulated that he thereby did something which was criminal. The act of the accused may be highly foolish or improper but that would not necessarily prove that he was thereby guilty of an offence. Another factor in this connection which seems to have greatly impressed the learned Sessions Judge was that the accused did not disclose, when he was questioned at the very first opportunity, that he had borrowed the money which was found on his person, from Chetram, and, therefore, the learned Judge came to the conclusion that the name of Chetram was merely an afterthought and the entire story of a loan from him deserved to be rejected. It must be pointed out, however, that the learned Sessions Judge does not appear to have taken proper and sufficient notice of the circumstance that as soon as the accused was questioned about his possession of the two hundred-rupee notes, he immediately stated that he had got the money by way of loan from bazar through Kapoorsingh. That the accused undoubtedly said so is proved by the statement of a witness no Jess than the Extra First Class Magistrate, Sri Ramchandra. The Deputy Superintendent of Police, Mr. Dixit, who was also questioned on the point in his cross-examination unfortunately gave an evasive answer and said that he was too busy preparing the recovery list to notice what had passed between the Magistrate and the accused. The testimony of the Extra Magistrate is, however, too plain to admit of any questioning and it does appear that the accused had disclosed the story of the loan at the earliest possible opportunity. What appears to me strange it that the prosecution entirely failed to question the accused further and find out from him from which person he had obtained the loan in the bazar. It is much to be regretted that this simple inquiry was not further pursued with the result that while it is the allegation of the prosecution that the accused did not disclose the name of the witness Chetram from whom the accused alleges to have obtained the loan, it has been strenuously contended on behalf of the defence that the accused had also disclosed the name of the lender, which, for reasons best known to the prosecution, it has kept back. As things stand, it is impossible to be sure on the point. This much is certain that the accused had immediately stated to the Magistrate that he had obtained a sum of Rs. 200/-, for sending a money-order, from the bazar as his nephew was greatly in need of money and had asked him for an urgent remittance. It is indeed surprising to me that neither the Magistrate nor the deputy Superintendent of Police, nor any other officer incharge of the investigation cared to find out from the accused from which firm or shop he had obtained the money Even the District Magistrate admits that while the accused wanted to say something and said that the former would know the whole truth, he stopped the accused from saying anything more and thereafter the accused kept quiet. The inevitable result of all this has been that the possibility of the sum of Rs. 200/- recovered from the accused having been obtained by way of loan from Chetram cannot be ruled out altogether. The relations between Bahadur and his associates being what they were, and once Kapoorsingh had come into possession of the latter Ex. P-3 which the accused had undoubtedly given him. it was quite easy for all that had happened later to have been arranged even though the accused merely wanted to get a loan from Chetram, and the latter had sent two hundred-rupee notes to the accused. As to how Chetram gave a sum of Rs. 200/- to Kapoor- singh without taking his signatures, Chetram has explained that Kapoorsingh was known to him from before, as Chetram was married in Lalgarh and Kapoorsingh belonged to that place, and further, the accused was known to him, and Kapoorsingh had brought a Chit from the Naib Tehsildar, Ex. D-A. which had been signed by him and the latter had previously borrowed money from Chet Ram. This explanation again cannot be said to be beyond the realm of possibility in the circumstances of the case. It is further contended by learned counsel for the accused that Kapoorsingh borrowed a sum of Rs. 200/- from Banshidhar may be perfectly true; put that that money was never passed on to the accused, because according to Banshidhar himself, when Kapoorsingh had borrowed the money, he had said that he required it for the purpose of purchasing some wood for his bullock cart, and the defence has produced one Ratiram to show that Kapoorsingh did purchase wood from Ratiram's shop for a sum of Rs. 97/14/- on the very day. A cash memo, Ex. D-1, has been produced by Ratiram, which shows that Kapoorsingh had purchased timber of that value from Ratiram's shop on 17th December, 1952. D. W. Sultansingh has also come into the witness box to show that while Kapoorsingh made the said purchase at Ratiram's shop, he was there, and, that they had travelled together from Ganga-nagar to Lalgarh that evening. This Sultan Singh appears to have been undoubtedly present that day in Ganganagar because Kapoorsingh himself admits his presence at the shop of Bansidhar at the time he went to take the loan there although he presented not to know anything about Sultan's presence in the later part of his statement. The learned Sessions Judge has merely said that the cash memo prepared by Ratiram was a false and forged document; but he has given no reasons for coming to that conclusion. It is significant in this connection that to a direct question whether when Kapoorsingh started from his home in Lalgarh he brought any money with himself, he gave a clear answer that he did not bring anything with himself, That, therefore, rules out the possibility of Kapoorsingh, having made the alleged purchase, if at all, with his own money. If therefore, he did purchase wood on that day from Ratiram's shop, he could have only done so from the money borrowed by him from Banshidhar and in that case it would not at all be possible for the sum of Rs. 200/-borrowed by Kapoorsingh from Banshidhar to be paid to the accused by way of bribe. Ratiram who has appeared as D W. 2 also testifies to the presence of Sultan with Kapoorsingh, at the time when the latter came to make the purchase at his shop. The prosecution has also not succeeded in breaking the evidence of this witness, and the conclusion of the learned Sessions Judge that the cash memo produced by Ratiram was nothing but a forgery is not supported by any reasons. The learned Sessions Judge also found support for the conclusion at which he arrived from the testimony of P. W. Chandan Singh. This person was a Naib Tehsildar who used to sit in the same from as the accused and also happened to be there at the time Kapporsingh was in their office. This witness also stated that the two hundred-rupee notes were found in the letter Ex. P. 3. The money was found in his presence and that his signatures were there Ex. P. 7 which was the recovery list. In his cross-examination this witness had stated that the accused had told Kapoorsingh that he had received a letter and that he needed two hundred-rupee notes which he should bring from any shop and that Kapoorsingh had gone and returned after some time to say that he could not obtain any money and returned the letter to the accused. Thereupon the accused put the letter in his own pocket. The witness further stated that the accused did not give out the name of the shop and that if he did, the witness did not remember. When this witness had said all this, the Public Prosecution obtained the permission of the court to cross-examine him. The witness in reply to the further questions put to him stated that when the Magistrate asked the accused whether he had two hundred-rupee notes with him, the accused replied in the negative. It may be pointed out, however, that this version is not supported by the Extra First Class Magistrate. To the further question put by the Public Prosecutor, this witness went on to say that the accused had told him that he had received a letter wherein an urgent demand for money had been made and therefore, the accused asked the witness to give him the money if he had any put the witness replied that he had none. A careful analysis of the evidence of this witness shows that not much reliance can be placed upon him. It appears to me that he is a witness who was a double-faced one and he was trying to please both the prosecution and the defence. In any case, there is little in the evidence of this witness, which can be said to support the prosecution and therefore, the learned Sessions Judge was, in my opinion not right in relying upon the evidence of this witness in support of the prosecution. From what I have stated above, I am constrained to come to the conclusion that the prosecution has not been able to prove its case against the accused beyond all reasonable doubt. The defence put forward by the accused cannot be dismissed out of consideration as outside the pale of truth and possibility. The observations of their Lordships of the Federal Court in H. T. Huntley vs. Emperor (l) are opposite in this connection and are as follows: - "a charge under sec. 161 is one which is easily and may often be lightly made, but is in the very nature of things difficult to establish, as direct evidence must in most cases be meagre and of a tainted nature. These considerations cannot however be suffered to relieve the prosecution of any part of the burden which rests upon it to establish the charge beyond reasonable doubt. If after everything that can legitimately be considered has been given its due weight, room still exists for taking the view that however strong the suspicion raised against the accused every reasonable possibility of innocence has not been excluded, he is entitled to an acquittal," Again in Imperor vs. Anwar Ali (2), it was held that : - "to establish a case of bribery against the accused for having accepted marked currency notes from a decoy witness employed by the police in furtherance of a trap against the accused, it is not sufficient to prove that marked notes passed from the decoy witness to the accused. It is of the utmost importance in cases of this kind that there should be independent corroboration of the statement of the decoy witness, that the money was received by the accused person for an illegal purpose. " Judged by the tests deductible from the cases cited above, I cannot help coming to the conclusion that the case against the accused is not free from doubt and that even though it be said that there is a strong suspicion against him, such suspicions cannot take the place of proof. He is, therefore, entitled to get the benefit of this doubt. It is necessary to clarify one more matter which appears to have been source of some confusion in the court below. The learned Sessions Judge seems to have held the view that sec. 4 of the Prevention of Corruption Act No. II of 1947 (as amended in 1952) authorises a presumption against the accused in a trial under sec. 161 I. P. C, namely that where the accused has accepted any gratification or any valuable thing from any person he does so as a bribe and the burden of proof that he did not accept it as a bribe lies on the accused. It would be fair, however, to the learned Sessions Judge to say that in convicting the accused he later pointed out that he came to the conclusion to which he did, apart from such presumption. Now if the learned Sessions Judge was of the opinion that merely because money passed from the hand of the complainant to that of the accused, there arises in law a presumption that such money was given as a bribe, then in my opinion, he was obviously wrong and such a proposition would lead to starting results. The language of sec. 161 of the Indian Penal Code clearly shows that in order to bring home the charge of bribery against a public servant, it is essen-tial to prove that there is (1) acceptance of or attempt to obtain a gratification and (2) as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show any favour or disfavour in the exercise of his official functions. It is not the mere receipt of gratification which completed the offence under that section but the gratification must have been given as a motive or reward to do any official act. In order to put a curb on corruption, what the legislature thought fit was by means of sec. 4 of the Prevention of Corruption Act to dispense with the second ingredient stated above. In other words, where gratification was proved to have passed to the accused, then it would not be further necessary for the prosecution to establish that the gratification was given as a motive or reward for accomplishing one of the objects mentioned in sec. 161 I. P. C. But it is entirely wrong to think that sec. 4 also dispenses with the necessity to prove on the part of the prosecution that gratification or some valuable thing, as such, proceed from the complainant to the accused. The burden of proving that even now rest on the prosecution under sec. 4 of the said Act as under sec. 161 I P. C. The moment, however, when the prosecution proves that the accused accepted or agreed to accept any gratification, the presumption will be raised against him that he received it is a motive or reward for exercising any official favour or disfavour and if the accused wants to suggest to the contrary it would be for him to establish that such was not the case. See M. C. Mitra vs. The State (3) The result of this discussion is that in the present case it was the bounden duty of the prosecution to prove beyond reasonable doubt that the sum of Rs. 200/- received from Kapoorsingh was by way of a bribe and the mere passage of Rs. 200/- from the one to the other is not sufficient to raise any presumption that the accused obtained it is a bribe. This burden, as already stated above, has not been discharged by the prosecution in a manner so as to be incompatible with the innocence of the accused.
(3.) BEFORE parting with this case, I must pause to point out that the learned Sessions Judge, although he come to the conclusion that the accused was guilty of an offence under sec. 161 I. P. C, thought fit to inflict a sentence of a fine of Rs. 1,000/- only against the accused. Assuming that the case was proved against the accused, the sentence was, in my opinion, wholly improper and inadequate. The learned Session Judge seems to have been impressed by the considerations that the accused would be dismissed, and that would entail the forfeiture of certain service benefits; but all that, in my judgment is altogether irrelevant for the purpose of awarding a proper sentence in cases of this kind. As already pointed out above, case of bribery are difficult to establish, but where they are so established, a substantial sentence of substantive imprisonment must be passed in an effective manner. The result is that this appeal is allowed, the conviction and sentence of the accused are set aside and he is acquitted. The fine, if paid, shall be refunded. .;