FAROOQ HASAN. J. - (1.) IN this Criminal Appeal, the judgment dated 30. 11. 1981 of the Special Judge (Anti-Corruption Cases) Rajasthan, Jaipur convicting the appellant, Shiv Nandan, under Sec. 5 (1) (d) (2) of the Prevention of Corruption Act, 1947, (Act' for short) and S. 161, IPC. & sentencing him to undergo one year's R. I. with a fine of Rs. 300/- (in default, further 3 months' R. I.) on each counts is sought to be set aside.
(2.) SHIV Nandan Sharma, the appellant was a clerk in the Office of the Assistant Engineer, (AEN) Rajasthan State Electricity Board (RSEB), Behror having official duty to prepare the bills of consumers. One, Ram Avtar who was having an electrical connection in his father's name had been issued a bill (Ex. P. 1) by the Assistant Engineer, R. S. E. B. Behror to the tune of Rs. 1200. 65p. payable by 29. 3. 1976-which according to him (Ramavtar) was too much excessive more than the amount due if any. Thus, upon receiving the bill (Ex. P,l ). the prosecution alleged. Ramavtar (decoy) went to the Office of the AEN, RSEB, Behror on 25. 3. 1976 and moved an application (Ex. P. 2) in his father's name describing the bill (Ex P. l) in a sum of Rs. 1200. 65p. to be incorrect being excessive, and requested to correct the same. The prosecution alleged that the application (Ex. P. 2) was given to the appellant who demanded a bribe of Rs, 50/- after coming outside his room otherwise his electric connection should be disconnected and that apart he (decoy) would have to pay penalty, and the bill would not be corrected without obtaining the order of deduction of the sum, of the AEN, RSEB Behror. The decoy pleaded that he was not in a position to pay the amount demanded and it was ultimately settled that the sum of Rs. 25/-would be paid for which he was directed to come with money in the office of the AEN, RSEB, Behror on 28. 3. 1976. The decoy pleaded not to pay the bribe and therefore he made a complaint in the office of the Deputy Superintendent of Police (Anti-corruption), Alwar on 27. 3. 1976, with the assertions, referred to above. With reference to the payment of the alleged illegal gratification, a trap was arranged where first of all, the decoy was directed by the Dy. S. P. to remain present on 28. 3. 76. at 2 P. M. at Behror near Hospital, with the amount of gratification demanded by the appellant. On 28. 3. 1976, as directed by the Dy. S. P. , the decoy came to the village, Behror, where he found Dy. S. P. alongwith Mahesh Kumar (constable), Ram-jilal (Head Constable), Madan Singh (constable ). Thereafter, the Dy. S. P. called Gugandas (PW 3) and Magan Behari (PW 4) for being motbirs in whose presence report (Ex. P. 3) was read over and the decoy admitted its contents to be correct. The decoy thereupon produced Rs. 25/-in the denomination - two notes of Rs. 10/-each, & one of Rs. 5/ - numbers of which were noted and they were treated with phenol-phthalein powder. After usual instructions were given to the decoy and the panch witnesses, the raiding party proceeded towards the crucial place. It is pertinent to mention here that the decoy was instructed to again have a talk with the appellant about the demand of illegal gratification and the Panch witnesses were instructed to remain present nearby the decoy so as to peep, see and hear the talks in between the decoy and the appellant. The decoy was further instructed to give signal by putting his hand on his head after payment of bribe. Other members of the raiding party were also instructed to stand at the directed point of place. Thereafter the decoy went and enterd into the Office of the AEN, RSEB, Behror, and found the appellant sitting in his room and told the appellant to correct bill whereupon the appellant is said to have demanded Rs. 25/-and the decoy banded over the said money to the appellant who took and put it inside his pant Docket and the appellant is said to have prepared fresh corrected bill (Ex. P. 6) to the tune of Rs. 653. 95 p. The prosecution case further is that Mahesh Kumar (PW 6) gave signal by putting his hand on head whereupon the Dy. S. P. and other members of the raiding party rushed to the crucial place - a room of the Office of the AEN, RSEB, Behror where apart from the bribe given and the appellant. , one L. D. C. emptoyed there in AEN's office, namely, Surya Prakash (PW. 7) also came and present there. After entering into the room of the appellant, the Dy. S. P. introduced himself to the appellant and then asked the appellant as to where be has taken bribe to which an immediate reply was that an amount of Rs. 25/- has been received by him but it was not taken as bride or illegal gratification and was towards repayment of loan owed by the complainant from him (appellant ). Thereupon the tainted currency notes were took out from his trousers pocket by the appellant and handed over to the Dy. S. P.- their numbers were compared and got tallied with the numbers noted before the raiding party proceeded. Both the hands of the appellant were dipped in sodium carbonate solution and the solution which was previously colourless turned pink. The same test was applied and repeated with the trouser which was taken out from the appellant. After completion of the investigation, a charge-sheet was laid against the appellant being for offences under Section 5 (0 (d) (2) of the Act read with sec, 161, IPC, to which the appellant denied and claimed to be tried.
(3.) IN all eleven prosecution witnesses were produced to prove the prosecution case. The appellant admitted the receipt of Rs. 25/- but his case in his statement recorded under section 313. Cr. P. C. was that there was no question of payment of any bribe; that on 11. 3. 1976 the decoy came to him so as to get re-connection order of his electric connection from the AEN's office and he (decoy) had to deposit the re-connection charges but, since he (decoy) had no money he requested him (accused) to advance him a loan and on his request, Rs. 25/- were given to the decoy by the accused with an assurance that it will be returned to the appellant. The appellant in his statement also stated that the electrical connection of the decoy's father was dis-connected by the RSEB not only on account of default in payment of electricity consumption charges on the part of the decoy's father but also the decoy alongwith his father committed electricity theft and they were caught red-handed by the vigilance party of the RSEB and on their report, the connection was again disconnected, its report was also lodged by the RSEB to the police; electrical wires were removed - which were tied by the decoy's father or by someone else at his instance. The appellant also stated that in order to get the order of re-connection the decoy came to the office of the AEN, RSEB on 11 3-1976 and deposited the requisite charges for re-connection by borrowing the same from him; that the order of re-connection was passed on 12-3-1976 and since 11th and 14th March, 1976 were the Holidays, therefore, the decoy requested him (appellant) to give the order of re-connection DASTY to which he (appellant) refuted and told him (decoy) that the order would be sent in due course that confronting with the appellant's refusal to give order of reconnection dasti, the decoy became annoyed and angry, and wanted him of dire consequences. The appellant also stated that the fact of demand was false because, when according to the prosecution case, itself, the appellant directed the decoy to come in the office of the AEN, RSEB, Behror on 28-3-76 to pay gratification but on 28-3-76 it was Sunday being holiday and, therefore, there was no occasion for him (appellant) to have instructed the decoy to come on 28-3-1976, and further because, the appellant had made an application to the AEN concerned for grant of permission to leave head quarter for 28-3-1976 in addition to leave for 29-3-76 - on which, the AEN had passed an order directing the appellant not to proceed on leave on those dates and directed him to work in the office even on Sunday. So, according to the appellant, had the leave been granted then he would have proceeded on leave, and it was a sheer chance that he was not granted leave for 28th & 29th March, 1976 by the AEN, RSEB, Behror and he had to remain present in the office in compliance of the order of the AEN to complete the pending work of the seat, passed on his application dated 27-3-1976 i. e. a day before the date alleged to have been settled by the decoy for giving and taking gratification. This leave application (Ex. D. 3) bears signature A to B admittedly of the appellant; contains endorsement of direction at C to D issued by the AEN under his signature E to F with his office seal marked G to H. ;