K. D. SHARMA, C. J. - (1.) THIS is an appeal filed by Shri Nand Lal against the Judgment of the Special Judge (Anti-Corruption Cases), Rajasthan Jaipur, dated 30-6-1975, by which the appellant was convicted under section 161, I. P. C. and section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 500/- in default of payment of fine to undergo rigorous imprisonment for three months on the first count and, on the second count, to suffer rigorous imprisonment for one year and to pay a fine of Rs. 1000/- in default of payment of fine to suffer rigorous imprisonment for six months.
(2.) THE incident that lead to the prosecution of the appellant may be stated, in brief, as follows,- on 23rd December, 1969, Heera Lal Meena resident of village Kotdi met the Superintendent of Police, (Anti Corruption Department) Jaipur, and made a report to him that Shri Nand Lal, appellant, a junior engineer in the employee of the Rajasthan State Electricity Board was demanding a sum of Rs. 100/- from the former for grant of an electric connection. Heera Lal was un-willing to pay bribe to the appellant so he requested the Superintendent of Police (A. C. D.) Jaipur to lay a trap and to catch the appellant red-handed soon after the acceptance of the bribe by him. THE Superintendent of Police sent the report to Shri Khem Chand Tejwani, Additional Superintendent of Police, (A. C. D.), Jaipur for necessary action. Shri Khem Chand Tejwani, upon receipt of the written report, recorded the statement of Heera Lal and took ten currency-notes worth Rs. 10/- each from him. THE currency notes were initialed and smeared with Phenolpthlien Powder by Shri Khem Chand Tejwani. THE currency-notes were then returned to Heera Lal with a direction to deliver them to Shri Nand Lal, appellant, in his office at Ringus. Shri Khem Chand Tejwani, thereafter boarded the bus along with Mangal Chand, Sub-Inspector, Chandanpal, Head Constable, Bhanwarlal Literate Constable, Sita Ram and Heera Lal decoy and all of them reached Ringus at 3 P. M. where they came to know that the appellant had gone to Neem-ka-Thana and so the party came back On the next day i. e. on 24th December, 1969, Shri Khem Chand Tejwani received an information from Sitaram that the appellant had came back to Ringus. Shri Khem Chand Tejwani, thereupon, accompanied by all those persons who had gone earlier with him, started from Jaipur for Ringus and reached there at 4 P. M. Shri Khem Chand Tejwani, on reaching Ringus, asked Heera Lal to produce before him initialled currency notes which were already smeared with Phenolpthlien Powder. Heera Lal gave him currency notes and Shri Khem Chand Tejwani smeared them again with more powder and then called for Sita Ram and Surat Singh, Sarpanch, as Motbirs to eye-witness the trap. THE initialled and smeared currency notes were handed over to Heera Lal and the aforesaid two Motbirs were directed to accompany him to the office of the appellant. Heera Lal was further directed by Shri Khem Chand Tejwani, Additional Superintendent of Police to give a signal after the currency notes were received by the appellant as bribe from him. Heera Lal and Surat Singh, Motbir, went to power-house and met the appellant, Heera Lal requested the appellant to give him electric-connection. THE appellant asked Heera Lal and Surat Singh to come to his office. THEre upon both went to the office of the appellant. THE appellant came in the office and demanded a sum of Rs. 100/-as bribe when he was asked by Heera Lal to grant electric-connection to him. Heera Lal gave the appellant the initialled ten currency notes of Rs. 10/- each in the presence of Surat Singh, Motbir, in side the office. THE appellant accepted the money in his hand and put them under the papers which were lying on his table. Heera Lal gave the agreed signal to Shri Khem Chand Tejwani and his trap party by scratching his head. On receiving the agreed signal, Shri Khem Chand Tejwani rushed to the office of the appellant along with his party. After entering the office he disclosed his identity to the appellant and asked the later to produce the currency-notes of Rs. 100/- which he had taken from Heera Lal as bribe. THE appellant, there-upon pointed towards the papers lying on the left side of his table and told that the currency-notes were kept there by Surat Singh, Sarpanch Motbir. Shri Khem Chand Tejwani removed the papers and saw that the currency-notes were lying under them on the table. He picked up the currency-notes and tallied their numbers with the numbers of the currency-notes which he had mentioned in the Memo Ex. P 2. Upon tallying the numbers, it was found that the currency-notes recovered from the table of the appellant were the same currency-notes which were initialled by Shri Khem Chand Tejwani and smeared with Phenolpthlien powder and were given to Heera Lal for delivering them to the appellant, upon demand of illegal gratification. Shri Khem Chand Tejwani then mixed Sodium Carbonate with some water in a glass and dipped therein the hand of the appellant, the colour of the water turned light pink soon after a dip. Shri Khem Chand Tejwani prepared a recovery memo of the currency-notes at the spot and took some other relevant papers into his possession. THE currency notes recovered from the table of the appellant were also sealed in a packet in the presence of the Motbirs. THE Additional Superintendent of police collected other necessary evidence in the case and after obtaining requisite sanction to prosecute the appellant, filed a charge-sheet against the later under section 161, I. P. C. and section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act in the Court of Special Judge (Anti Corruption Cases), Jaipur. The learned Special Judge (Anti Corruption Cases) tried the appellant for the aforesaid offence and found him guilty thereof. Accordingly, he convicted and sentenced the appellant in the manner stated above. Aggrieved by his convictions and sentences, the appellant has preferred this appeal. I have carefully perused the record and heard Mr. V. S. Dave and Mr. Narendra Jain, learned counsel for the appellant and Mr. O. P. Sharma, Public Prosecutor for the State. In the course of arguments, Mr. V. S. Dave has put forward the following contentions before me: - (i) The learned Special Judge did not consider that Sita Ram and Surat Singh were annoyed with the appellant because the electric-connections given to their farms were disconnected and so they had conspired to concoct a false case against the appellant on that score. (ii) The evidence relating to presence of Phenolpthlien powder in the water after the hand of the appellant was dipped in it, carries no weight, because, neither the demonstration of the same has been given to the decoy and the trap witnesses nor the wash was preserved and sent to the Chemical Analyst, and even the wash was not produced in the Court. The learned Special Judge, therefore, committed an error in holding that this piece of evidence corroborated the evidence of Heera Lal and Surat Singh relating to the acceptance of currency-notes as bribe by the appellant. (iii) The Special Judge over looked an important fact that if formalities required to be completed for getting electric-connections are not completed by the consumer himself, no question of priority in giving electric connection could arise. The Special Judge ought to have considered the document Ex. D. l which clearly indicated that the testing of the fitting could not be done, as the party had not made the payment. In this connection, the Special Judge ought to have relied upon the evidence of Surja Ram P. W. 9. (iv) The Special Judge ignored material contradictions in the statements of the witnesses about the manner in which money was accepted and about the explanation given by the accused to the Additional Superintendent of Police soon after the trap and about the change of colour of water after the hand of the appellant was dipped into it. Likewise, the Special Judge committed an error of law in holding the sanction to prosecute the appellant, as a valid sanction.
(3.) THE learned public prosecutor, on the other hand, argued that the prosecution has led conclusive evidence to establish the charge of bribery and mis-conduct against the appellant who was a public servant i. e. junior engineer in Rajasthan State Electric Board and who committed offence while discharging his duties as such public servant. It was further urged by him that it is proved by the prosecution that currency-notes of Rs. 100/- had been accepted by the appellant, and upon such proof being adduced the presumption at once arises under section 4 of the Prevention of Corruption Act which shifts the onus upon the accused to prove that such acceptance was not for the purpose mentioned in section 161, I. P. C. According to the Public Prosecutor, the appellant could not offer any reasonable and probable explanation for acceptance of the currency notes of Rs. 100/- from Heera Lal and so the presumption of law created by section 4 of the Prevention of Corruption Act stands un-rebutted and the trial court committed no error in convicting the appellant on both the aforesaid counts on the basis of the evidence adduced by the prosecution. THE Public Prosecutor further contended that the evidence of Heera Lal and Surat Singh and Sita Ram, Motbirs, does not suffer from any infirmity, as there are no material discrepancies in their statements and as nothing has been brought on the record which may tend to show that these witnesses were inimical to the appellant or bore personal grudge against him on any score. As regards the validity of the sanction for prosecution of the appellant, it was submittey by the public prosecutor that the sanction is not defective or bad in law. I have considered the rival contentions mentioned above. At the out set, I may observe that the appellant cannot be convicted by an offence of bribery or mis-conduct in dis-charge of his official duties, unless the Court is satisfied as to his guilt beyond reasonable doubt. Hence, it has to be ascertained after careful review of the entire evidence on the record whether the appellant accepted ten currency notes of Rs. 10/- each from Heera Lal in his office at the time alleged by the prosecution, because moment the prosecution proves that the appellant accepted or agreed to accept any gratification or valuable thing which was not due to him as legal remuneration, the presumption atonce arises under sec. 4 of the Prevention of Corruption Act, and, the appellant is required to show that such acceptance was not for the purposes mentioned in sec. 161, of the Indian Penal Code. The prosecution has relied upon the evidence of Heera Lal, decoy, and Surat Singh. Motbir, to prove that the appellant accepted the ten currency notes of Rs. 10/- each as bribe from Heera Lal in his office. Upon careful scrutiny of the evidence of these two witnesses, I have came to the conclusion that their evidence is not conclusive to establish a charge of bribery against the appellant. Heeralal stated in his deposition at the trial that he along with Surat Singh, Motbir, went to the office of the appellant and handed over ten currency-notes of Rs. 10/- each to him upon his demand. He further stated that the appellant accepted the currency notes in his hand and put them under the papers lying on the table. Heeralal, then gave the agreed signal by scratching his head. Upon receiving his signal, Shri Khem Chand Tejwani entered in the office along with the trap-party and searched the pockets of the appellant. The appellant denied to have accepted the currency-notes, but thereafter, currency-notes were found on the table. Shri Khem Chand Tejwani asked the appellant as who had kept those currency-notes under the papers on the table The appellant replied that Heera Lal had placed them there. In his cross-examination, Heera Lal further staled that before Shri Khem Chand Tejwani came into the office, his companions had already came in and they along with him (Heeralal) caught hold of the appellant with their hands but they did not ask the appellant where the currency-notes were. Surat Singh, Motbir, P. W. 10, on the other hand, stated in his deposition in the trial Court that the appellant accepted the currency-notes and put them under a Register on the table. The reafter Heera Lal gave the agreed signal which attracted Shri Khem Chand Tejwani and his companions to that place. Shri Khem Chand Tejwani after disclosing his identity to the appellant searched his pockets, then Heera Lal, decoy, told Shri Tejwani that the currency-notes were lying under a Register on the table. Upon his information Shri Khem Chand Tejwani took out the currency-notes and asked the appellant how he had accepted them. Thereupon, the appellant replied that he had not accepted the currency-notes and Surat Singh, Motbir, P. W. 10 had placed them on the table under the Register. Shri Khem Chand Tejwani, P. W. 13, did not say that the currency-notes were handed over to the appellant by Shri Heera Lal in his presence but he claimed to have rushed to the office, upon receiving an agreed signal from Heera Lal. After entering the office he asked the appellant to produce currency-notes of Rs. 100/- each which he had accepted from Heera Lal. Thereupon, the appellant pointed towards the left side of the table and told that they were lying there and that Surat Singh, Sarpanch, had put them. Shri Khem Chand Tejwani removed the papers and saw the currency-notes lying there. In this manner the versions given out by these three witnesses as to what happened inside the office are discrepant. According to the statement of Surat Singh, Motbir, Heera Lal, decoy, told Shri Khem Chand Tejwani that the currency-notes were lying under a Register on the table, after Shri Khem Chand Tejwani had searched the pockets of the appellant. Heera Lal decoy did not say in his deposition that he had intimated Shri Khem Chand that the currency notes were lying under the Register on the table. According to his statement, Shri Khem Chand Tejwani searched the pockets of the appellant who denied to have accepted the currency-notes which were found on the table, under the papers. Shri Khem Chand Tejwani gave an altogether a different version on this point by stating that when he asked the appellant to produce currency-notes of Rs. 100/- which he had taken from Heera Lal, decoy, the appellant pointed towards the left side of his table and told that the currency notes were lying there. He did not say that Heera Lal had disclosed to him that the currency-notes were lying under the table. After he had searched the pockets of the appellant. Apart from this, there is another material discrepancy which throws considerable doubt on the story of recovery of currency-notes at the instance of the appellant. The discrepancy is that Heera Lal stated in his deposition that when Shri Khem Chand Tejwani asked the appellant as who had kept currency-notes under the papers on the table, the appellant replied that Heera Lal had put them there. Surat Singh, P. W. 10 and Shri Khem Chand Tejwani, on the other hand, stated that the appellant stated at that time that Surat Singh, Sarpanch, had placed the currency notes on the table under the papers. The Special Judge ignored these discrepancies merely on the ground that they were of no material significance and of were of minor nature. In my opinion, the discrepancies pointed out above cast a lot of suspension on the prosecution story that the currency -notes were put by the appellant himself under the papers on the table after their acceptance. Apart from this, corroborative evidence of Surat Singh, Sarpanch, does not inspire confidence because he admitted in his cross-examination that the appellant had disconnected his electricity connection at his wells without any reason whatsoever prior to the trap. He further admitted in his cross-examination that he lodged a complaint against the appellant about receiving a bribe of Rs. 50/- from Kana Ram, Ram Bux and that Kana Ram had given the appellant a bribe of Rs. 50/- in his presence about 15 or 20 days prior to the trap in this case. He further admitted that he caused a notice to be served on the appellant through Suraj Narain, Advocate, and that he lodged a complaint against the appellant about disconnections of electricity at his wells in the year 1969 and that the appellant removed his electricity connections even before orders to this effect were passed, with the result that the connections could not be restored for about six months. The above admissions made by Surat Singh, Sarpanch, in his cross-examination clearly indicate that he was highly annoyed with the appellant. It is unnatural to accept that the appellant would demand a bribe from Heera Lal in the presence of a person, namely, Surat Singh-Sarpanch, who had lodged complaints against him prior to the trap and with whom his relations were not cordial and about whom he was not sure. I may further add that the evidence of Heera Lal and Surat Singh does not inspire confidence because when they knew it well that the appellant had put the currency-notes under a Register or papers lying on the table, they kept mum. When according to them Shri Khem Chand Tejwani was searching the pockets of the appellant after disclosing his identity to the later they could easily told Shri Khemchand Tejwani that there was no necessity of searching the pockets of the appellant, as the currency-notes had been placed by him under the papers on the table. Apart from this, Heeralal gave altogether a different version by stating that before the arrival of Shri Khem Chand Tejwani in the office, his companions had come in and had caught hold of the appellant with their hands. This version stands un-corroborated by the evidence of Surat Singh, Sarpanch, and Shri Khem Chand Tejwani. ;