D.N. Thanvi, J. - (1.) THIS appeal is directed against the judgment 15.07.1999 passed by the learned Sessions Judge, ACD Cases, Bikaner, whereby, he convicted accused appellant Banwari Lal for offence under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) and sentenced him to undergo one year's rigorous imprisonment and to pay a fine of Rs. 1000/ -, in default of payment of fine to further undergo three months' rigorous imprisonment. Accused appellant was also convicted for offence under Section 13(2) of the Act and sentenced to one year's rigorous imprisonment and to pay a fine of Rs. 1000/ -, in default of payment of fine to further undergo three months' rigorous imprisonment. Both the sentences were ordered to run concurrently.
(2.) FACTS leading to this appeal are that on 07.10.1992, one Shivraj Singh, resident of Jamitewala of Police Station Lalgarh Jattan made an oral report that Excise Inspector Banwari Lal informed him about recovery of two tins of excisable goods and demanded Rs. 2500/ - for producing illicit liquor. He paid Rs. 2000/ - to Banwari Lal at Sri Ganganagar but Banwari Lal demanded Rs. 500/ - more. Upon this, the Additional Superintendent of Police, Ganganagar arranged trap and after explaining phenolphthalein and sodium carbonate before the complainant, the Dy. Superintendent of Police signed ten notes of Rs. 50/ - each and gave to the complainant and went in the jeep at the residence of Banwari Lal, Excise Inspector at Ward No. 33, Purani Abadi, Ganganagar. There the amount of Rs. 500/ - was given to one constable Lakhu Singh. When Lakhu Singh reached on the spot, the Dy. S.P. asked him about Rs. 500/ -, then he said that he has taken this amount at the behest of Banwari Lal. Therefore, after completing the formalities of recovery etc., the constable was arrested under Section 120B IPC and Banwari Lal was also arrested. Samples were seized for chemical examination and after obtaining sanction, challan was filed against Banwari Lal. Charge was framed, to which he pleaded not guilty. Prosecution examined seven witnesses. Statement of accused was recorded under Section 313 Cr.P.C. and after hearing the arguments, the learned trial Judge convicted the accused appellant as indicated above. The most important factor in this case as pointed out by learned Counsel for the appellant is that the alleged amount of Rs. 500/ - being illegal gratification is recovered from constable Lakhu Singh, but he has not been challaned. Though, Lakhu Singh has been produced in the Court as a prosecution witness being PW -3, who was guard in the Excise Department. This witness has supported the prosecution case, but when he was examined, he has stated that on receipt of money, he went to his house and thereafter, he came and upon threatening by the Dy.S.P., he handed over the money. This statement of Lakhu Singh clearly shows that being subordinate to the accused appellant, who is Excise Inspector, he was also co -accused and if a person on the basis of the statement of co -accused is charge sheeted, the first requirement of law is that the co -accused should be declared as approver as required under Section 306 Cr.P.C. Under the Prevention of Corruption Act, the prime liability of accepting illegal gratification is of a person who takes money. Firstly, this witness Lakhu Singh, who is guard in the Excise Department was arrested under Section 120B IPC but later on no challan was filed against him. Even if, police wanted to release him from the criminal liability, after recording his statement under Section 164 Cr.P.C., in which, he admitted acceptance of illegal gratification as a subordinate of his superior officer, he should have also made accused and on discloser of the truth, he should have been examined as a prosecution witness on giving pardon to him. Under Section 306 Cr.P.C., approver can be declared as a witness only when the above formalities are complied with. When this specific question was asked to Dy.S.P. Rajendra Singh PW -7, he has clearly stated in his cross examination that he did not follow the procedure of declaring Lakhu Singh as a prosecution witness. Accordingly, when no recovery has been made from the accused appellant, his conviction under Sections 7 and 13(2) of the Act cannot be sustained.
(3.) CONSEQUENTLY , this appeal is allowed. The judgment dt. 15.07.1999 passed by the learned Sessions Judge, ACD Cases, Bikaner is set aside. Appellant -Banwari Lal S/o Makhan Singh is acquitted of the charge for offence under Sections 7 and 13(2) of the Act. He is on bail, his bail bonds stand cancelled.;