N. M. KASL1wal, J. - (1.) THIS is an appeal by the accused Shri Bhanwar Lal against his conviction under sec. 161 I. P. C. and sentence to one year's rigorous imprisonment and a fine of Rs. 200/ -. In default of payment of fine to further undergo 2 month's rigorous imprisonment and conviction under sec. 5 (1) (d) punishable under sec. 5 (2) of the Prevention of Corruption Act and further sentence to 1 year's rigorous imprisonment and a fine of Rs. 200/ -. In default of payment of fine to further undergo 2 months' rigorous imprisonment by the learned Special Judge (A. C. D. cases) Rajasthan, Jaipur.
(2.) BRIEFLY stated the prosecution case is that one Shri Kanhialal Advocate of Nathdwara met the Additional Superintendent of Police, Anti-corruption Department, Jaipur on 29-3-1972 at about 9 P. M. when he had gone to Nathdwara to investigate another case, Shri Kanhialal Advocate informed the Addl. S. P. that the accused Bhanwar Lal who was a Sub-Inspector of Police at Nathdwara was demanding a bribe from his client Shiamsunder. A trap was laid at the house of Shri Kanhialal Advocate on the next following morning. Thus as pre-arranged the Addl. S. P. Anti-corruption Mr. Tejwani, PW. 8, reached the office of Shri Kanhialal Advocate on the morning of 30th March, 1972 along with Mohanlal Sub-Inspector and Ram Singh constable. Shri Shyam Sunder, P. W. 1, who was already present there lodged a report that Bhoora Barber had registered a case of rioting and abduction of Mst. Nani against him along with some other persons. In that case Mst. Nani was examined at the house of the accused and there the accused received a sum of Rs. 50/-from him as bribe. Though the bail of all the accused persons in that case was taken by the accused Bhanwarlal but he had further demanded a sum of Rs. 250/- to Rs. 300/- as bribe for finally doing away with the case against the complainant Shyam Sunder and other persons. The accused had informed him for coming at the office of Shri Kanhialal Advocate where he would accept the amount of bribe. An amount of Rs. 150/- in Govt. Currency Notes was also produced. The notes were initialled by the Addl. S. P. and after putting the pehnolphthalein powder the notes were returned to Shyam Sunder for giving the same to the accused on his demand for bribe. Mr. Tejwani, P. W. 8, stayed in the upper portion of the office of Shri Kanhialal Advocate along with Narottan Lal and Gopilal to work as motbirs. The accused did not turn up at the scheduled time and as such the complainant Shyam Sunder went in search of him but could not trace the accused. Thereafter Shri Kanhialal Advocate, P. W. 2, went in search of the accused and he found the accused who came in the office of Kanhialal Advocate at about 10. 15 A. M. The accused accepted the amount of Rs. 150/- as bribe from Shyam Sunder in the presence of Kanhialal Advocate, P. W. 2, and Shri Ram Singh, P. W. 4. The accused was initially not agreed to accept the part payment of the bribe but on the assaurnce given by Shri Kanhialal Advocate that the balance of Rs. 100/- shall be paid by his client Shiam Sunder, the accused accepted the amount of Rs. 150/ -. The prosecution case further is that Shiam Sunder was then sent to bring the water from the upper storey of the house where the raiding party was already sitting Shiam Sunder informed the raiding party about the giving of the bribe to the accused. On this information the Additional S. P. Shri Tejwani along with Shri Ganesh Lal Sub-Inspector, P. W. 3, Narottamlal P. W. 5 and Gopilal P. W. 6 came down in the office of Shri Kanhialal Advocate where the accused was sitting on a chair. P. W. 8 Shri Tejwani disclosed his identity and asked the accused to produce the currency notes received by him from Shiam Sunder. The accused produced Rs. 150/-currency notes, the numbers of which were found to tally with the memo recorded in this regard. In search some more currency notes were also found with the accused. The hands of the accused were got washed in the solution of Sodium Carbonate and the solution turned into pinkish colour. The accused was arrested. The case diary of case No. 13 of 1972 registered for offence under sec. 147/458 I. P. C. was also seized. The proceedings of the case diary of that case showed that the statement of Nani was recorded on 21-3-1972 and thereafter the case was changed from sec. 458 I. P. C. (Non-bailable) to sec. 448 I. P. C. (Bailable ). Shiam Sunder complainant of this case and other persons were arrested in the case and other persons were arrested in the case No. 13 of 1972 on 27-3-1972 and were released on bail. The investigation of that case was pending at the Police Station Nathdwara. It is also an admitted case of the prosecution that the accused had taken the plea during the investigation that the alleged amount of Rs 150/- was taken by the accused from Kanhia Lal Advocate and not from Shiam Sunder. This amount was returned by Kanhia Lal Advocate in respect of a loan borrowed by him from the accused. This plea was found to be false during the investigation and as such after obtaining the requisite sanction the case was challaned against the accused. The accused was read over and explained the charge under sec. 161 I. P. C. and sec. 5 (l) (d) read with sec. 5 (2) of the Prevention of Corruption Act. The accused pleaded not guilty to the charge and claimed to be tried. The prosecution examined 8 witnesses in support of its case and in defence the accused examined three witnesses and also gave his own statement as a witness after obtaining the permission. The prosecution and the defence also produced some documents. A minor part of the prosecution case is admitted by the accused himself. The facts that a raiding party had gone at the house of PW. 2 Shri Kanhia Lal Advocate and that the accused had also gone on 30-3-1972 at the house of Shri Kanhia Lal Advocate P. W. 2 and that an amount of Rs. 150/- was received by the accused and was found in his pocket are admitted. The prosecution case is that the accused had accepted this amount from Shiam Sunder as an illegal gratification, while the defence case in this regard is that the amount of Rs. 150/- was not given to him by Shiam Sunder but it was actually given by Shri Kanhia Lal Advocate, P. W. 2, and the amount was not accepted by the accused as an illegal gratification but it was an amount of loan returned by Shri Kanhia Lal Advocate, P. W. 2. The learned Special Judge (A. C. D.) framed the following three points for determination : (i) Whether a sum of Rs. 150/- recovered from the possession of the accused was the amount given by Shiam Sunder as illegal gratification or it was the amount returned by Kanhialal alleged by the accused to have been taken from him by the said Advocate earlier ? (2) Whether the accused was prosecuted under a valid sanction. (3) What offence or offences are made out in the case against the accused. If made out, what should be the quantum of punishment ? Point No. 1 is the only point for consideration before me on which the learned defence counsel and the learned Public Prosecutor have addressed their arguments While dealing this point the learned Special Judge (A. C. D.) held that the contention of the accused that he could not show any favour to Shiam Sunder complainant (who was accused in case No. 13 of 1972) was not acceptable. He further found that there was not discrepancy in the prosecution evidence on the point of object for which the demand of bribe was made. The version that the amount was paid by Kanhia Lal Advocate and not by Shyam Sunder was considered as an after thought and the version of the defence was not accepted. Thus the learned Special Judge placed reliance on the statements of all the prosecution witnesses and decided the point No. 1 in favour of the prosecution.
(3.) BEFORE dealing with the arguments advanced before me I would like to first deal with certain cases cited by the learned counsel for both the parties and would like to deal with the arguments in the light of the observations made in these cases. In V. D. Jhingan vs. State of Uttar Pradesh (1), it has been observed: " To raise the presumption under sec. 4 (1) of Prevention of Corruption Act, the prosecution has to prove that the accused has received gratification other than legal remuneration. When it is shown that the accused has received a certain sum of money which was not his legal remuneration the condition prescribed by the section is satisfied and the presumption must be raised. Further the mere receipt of "money" is sufficient to raise the presumption. The burden of proof lying upon the accused under sec. 4 (1) of the Prevention of Corruption Act will be satisfied if he establishes his case by a preponderance of probability as is done by a party in civil proceedings. It is not necessary that he should establish his case by the test of proof beyond a reasonable doubt. " In Trilok Chand Jain vs. State of Delhi (2), their Lordships of the Supreme Court while dealing with the applicability of the presumption under sec. 4 (1) of the P. C. Act, 1947 observed as under : " The presumption, however, is not absolute. It is rebuttable, The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may very accordingly to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or other-wise. But the degree and the character of the burden of proof which sec. 4 (1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under sec. 101, Evidence Act rests on the prosecution. While the mere plausibility of an explanation given by the accused in his examination under sec. 342, Cr. P. C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour; it is not necessary for him to establish his case beyond a reasonable doubt. Another aspect of the matter which has to be born in mind is that the sole purpose of the presumption under sec. 4 (1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under sec. 5 (1) (2) of the Prevention of Corruption Act and sec. 161, Penal Code. The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still born. " In State of Assam vs. Krishna Rao (3), it was observed that; " Where it is proved that a gratification has been accepted, the presumption under sec. 4 of the Prevention of Corruption Act shall at once arise. It is a presumption of law and it is obligatory on the court to raise it in every case brought under section 4. The words "unless the contrary is proved" mean that the presumption raised by sec. 4 has to be rebutted by proof and not by bare explanation which may be merely plausible. The required proof need not be such as is expected for sustaining a criminal conviction; it need only establish a high degree of probability". In Chatur Das Bhagwan Das Patel vs. The State of Gujarat (4), it was observed; " When a public servant being a police officer, is charged under sec. 161, Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, the question whether there was any offence against the giving of the gratification which the accused could have investigated or not, is not material for that purpose. If he has used his official position to extract illegal gratification, the requirement of the law is satisfied. It is not necessary in such a case for the court to consider whether or not the public servant was capable of doing or intended to do any official act of favour or disfavour. It is clear that the appellant has failed to rebut the presumption arising against him under sec. 4 (1) of the Prevention of Corruption Act it is true that the burden which rests on an accused to displace this presumption, is not an onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money, was accepted by the accused, other than as a motive or reward such as is referred to in sec. 161. The appellant had hopelessly failed to show such a balance of probability in his favour. Thus the charge under sec. 161 Penal Code had been fully brought home to the appellant. The charge under sec. 5 (1) (d) read with sec. 5 (2) also had been proved against him to the hilt. Clearly he had obtained the money by grossly abusing his position. " In Rameshwar Prasad Trivedi vs. State of Rajasthan (5), it has been held : " In view of the provisions of section 4 of the Prevention of Corruption Act, the court shall presume the absence of circumstances bringing the payment received by the accused within the category of innocent receipt and that, therefore, it is for the accused to prove that Kamal Das had borrowed Rs. 500/- from him on November 1, 1973 and that he had paid Rs. 500/- to him on November 5, 1973 by way of repayment of that loan. But at the same time, one must not ignore the fact that the burden of proof lying on the accused is not so heavy in the sense as to require him to prove his defence conclusively. The burden of proof lying upon the accused to prove that Kamal Das had borrowed Rs. 500/- from him on November 1, and repaid the same amount on November 5, will be discharged if he establishes his case by a preponderance of probabilities as is done in a civil case. He is not required to prove his case conclusively and beyond reasonable doubt. " In Mahesh Prasad Gupta vs. State of Rajasthan (6), it has been held as under: " It the prosecution proves the acceptance of the amount by the accused and the amount does not represent legal remuneration in any form or of any kind, the presumption must be raised under the section and the accused must establish that the amount was not accepted by him as a motive or reward such as is mentioned in section 161, Penal Code. The accused can establish his case by preponderance of probabilities, that is to say, he need not prove his case beyond a reasonable doubt. It cannot be contended that the presumption under section 4 (1) can be raised only if the prosecution establishes in the first instance that the amount was paid otherwise than as legal remuneration. Such a contention is contrary to the clear terms of sec. 4 (1) and would render illusory the presumption arising under the section. To cast on the prosecution the burden of proving that the amount was accepted by the accused otherwise than by way of legal remuneration is to ask the prosecution to move that the amount was paid and accepted by way of bribe. " 7. The ratio of the above decisions is that once the prosecution proves the acceptance of the amount by the accused and the amount does not represent legal remuneration in any form or of any kind, the presumption must be raised under sec. 4 (1) of the Prevention of Corruption Act, 1947 and then burden lies on the accused to establish that the amount was not accepted by him as a motive of reward such as is mentioned under sec. 161 IPC. Such presumption, however, is not absolute and is rebuttable. The quantum and nature of proof require to dispose this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused or it may consist of circumstances in the prosecution evidence itself, as a result of cross-examination or otherwise. The burden which rests on an accused to displace this presumption, is not as onerous as that cast on the prosecution to prove its case. The accused can establish its case by preponderance of probabilities that is to say, he need not prove his case beyond a reasonable doubt. In the light of the above statement of law I shall now examine the evidence in this case. Pw 1 Shyam Sunder has stated that Bhanwar Lal accused has demanded Rs. 300/- by way of bribe from him and told him that if he would pay Rs. 300/- he would finish the case. He had Rs. 50/- only with him at that time which he gave to the accused Bhanwar Lal and agreed to pay the balance of Rs. 250/- later on. As he could not pay the remaining amount Shri Bhanwar Lal arrested him and others after 4-5 days. During this period the statement of Mst. Nani was got recorded before Sub-divisional Magistrate Kapasan. Bhanwar Lal accused took our bail but told that if we would pay the balance amount he would release all of them otherwise he would submit a challan against them. Thereafter he met Kanhaiya Lal Advocate Pw 2 and told him that the Sub-Inspector (accused) harassed him. On this vakil sahib told that he would arrange for him. Thereafter he arranged for Rs. 150/- and reached the house of Kanhaiya Lal Pw 2 on 29th March, 1972. Vakil Sahib told him to call Bhanwar Lal accused and as such he went in search of Bhanwar Lal who met in the club. He called the accused outside the club and told him that he had brought the money and the accused should take this money at the house of Vakil Sahib Kanhaiya Lal. Shri Bhanwar Lal accused told that he would come on the next morning. Thereafter he states that he reached the office of Kanhaiya Lal, at 8 a. m. on 30th March, 1972 where the Additional S. P. A. C. D. was present along with his driver and Sub-Inspector. Thereafter Ex. P 1 report was taken from him and then the Addl. S. P. and the S. I. went in the room on the upper storey and he remained seated with the driver. Thereafter he also went on the upper storey and the currency notes were given by him to the Additional S. P. , who returned them after putting his initials and putting powder on them. Then he came back in the office of Kanhaiya Lal. He was asked by Vakil Sahib to call the accused Bhanwar Lal. He went in search of Bhanwar Lal at his house and at the police station but Bhanwar Lal was not found at both the places. He returned back and informed Kanhaiya Lal about it. Then Kanhaiya Lal at about 9-9. 30 a. m. went in search of Bhanwar Lal and returned back sometime after calling the accused. Then the witness said that he asked Bhanwar Lal accused as to what is to be done, on this Bhanwar Lal accused said that pay Rs. 300/- and he would decide the matter. On this Shyam Sunder told that he had already paid Rs. 50/- to him and Rs. 150/- which was with him at this time, which he can pay to accused Bhanwar Lal. On this the accused Bhanwar Lal asked that what would be done of the balance of Rs. 100/ -. Then at the instance of this witness Shri Kanhaiya Lal stood surety for Rs. 100/ -. Thereafter he gave the initialled and powdered notes to Shri Bhanwar Lal accused by counting the same. Shri Bhanwar Lal counted the notes and put the same in the left hand pocket of his pant. Shri Bhanwar Lal told him that all of them will have to appear on one day but thereafter he would get the matter compromised with Bhoora. On cross-examination the witness has admitted that during the days when case was instituted against him he was not doing any service nor any other business. He had borrowed Rs. 50/- which is still to be repaid. Rs. 50/- were borrowed from a man of his village, whose name is Mangi Lal Mahajan. No writing was executed in this regard. He has further stated in the cross-examination that when he had gone to the club in search of Bhanwar Lal accused Rs. 150/- were with him but he did not give the same to the accused as he wanted to give it in front of vakil sahib. He has brought Rs. 150/- from his brother Panna Lal, who is a peon in Power House. Pannalal gets a salary of Rs. 160/- to Rs. 170/- per month. He did not execute any writing for borrowing the money of Rs. 150/- also. He has further stated that his hands were not washed when the Additional S. P. had returned the notes after putting powder on them. The hands of Kanhiyalal vakil were also not washed. He was taken before Munsif Magistrate Rajsamand on 31st March, 1972 for recording his statement under sec 164 Cr. P. C. but the Munsif ordered him to be present on the next day for recording his statement. On this he was taken to Vallabh-nagar and his statements were recorded before the Sub-divisional Magistrate, Vallabhnagar. Shri Kanhiaya Lal Vakil also accompanied him. The witness has admitted that a riot took place in Boharwadi Nathdwara about three years back. He was made an accused in that case. The accused Bhanwar Lal had arrested him in that case which is still pending. Pw 2 Kanhaiya Lal advocate has stated that Shyam Sunder told him that Bhanwar Lal accused was harassing him and his other associates and demands Rs. 400/- as bribe. Shyam Sunder also told that the accused had already taken Rs. 50/- and for the remaining amount he is called at the police station and is being harassed. On this the witness told Shyam Sunder that if the Sub-Inspector was demanding bribe and if he wanted to trap him the same can be done. The witness then met the Additional S. P. , A. C. D. and asked him whether he could help Shyam Sunder in any manner. Shri Tejwani told him that it was their work and instructed him to ask Shyam Sunder as to howmuch money is being demanded by the accused and he may get the time and place fixed for giving the money. Shyam Sunder then after meeting the accused told him that the accused would come in his office on the next morning at about 8-9 a. m. Shyam Sunder then slept in his office in the night. Thereafter the witness has narrated the story of laying down the trap. The witness has further stated that Shyam Sunder went in search of the accused but he was not found as such he himself went in search of the accused who met at the bus-stand then he told the accused that Shyam Sunder was waiting for him in the office of the witness. The accused came after about 15 minutes. At that time Shyam Sunder and a driver and the witness were sitting in the office. Shyam Sunder then told the accused ;