V.S.DAVE, J. - (1.) THIS is an appeal filed by the accused -appellant against the judgment of Special Judge, ACD Cases, Jaipur dated 27 -1 -1981 by which he convicted the accused -appellant of offence under Sections 161 IPC and Sec 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act (here in after referred to as 'the Act') and sentenced for each of the offence to one year's RI and a fine of Rs. 300/ - and in default of payment of fine to further undergo three month's RI.
(2.) THE learned Judge, how ever, ordered that the substantive sentences pasted under both the offences shall run concurrently. Accused appellant Kailash Chand on 10 -10 -1976 was a Patwari of Halka Lalpura and in his jurisdiction wag a field belonging to complainant decoy, Rokar Chand in village Chahaka Bas. Rokar Chand filed a written application Ex P1, before Dy. S.P. Anti Corruption Department, Alwar on 11 -10 -1976 where in it was alleged by him that he is resident of Pratapgarh Tehsil Thanagaji having his agricultural land in Chahaka Bas in Patwar Circle Lalpura. He wanted to get entry of this land in his name because Patwari Halka Lalpura has shown the cultivation of his sister Kamla on his Stand while in fact on the spot he was in cultivatory possession and mutation had also been done in her name and in name of his brother. He, therefore, wanted to file a suit for correction of entry in the Court of SDO, Rajgarh for which he wanted copy of Jamabandi of Sumvat years 2028 to 2032 and for taking copy of Intkaf, he contacted Patwari i.e. the accused appellant in Patwarghar, Pratapgarh on 10 -10 -1976 i.e. the previous day and Patwari in turn asked him to pay him Rs. 50/ - for issuance of the copy of Intkaf and lamabandi. Since he is a poor man, and considers giving bribe as a sin, does not want to pay and wants Patwari to be caught red banded hence he is submitting Rs. 50/ - along with the application. This application, Ex. 1 was presented before the Dy. S.P., ACD, Alwar, Shri S.H. Johri (PW 12) at 12.30 p.m. on 11 -10 -1976. He requisitioned a jeep from Collector, Alwar and within next 15 minutes, he also had two motbirs in his office viz, Shri Subhash Chand Jain and Babulal, both employees of Commercial Taxation Department who had come to his office in connection with the same preliminary enquiry against some other person. They were asked if they wanted to be witnesses to which they agreed and, therefore, the Dy. SP gave demonstration of use of phenolphthalein powder and prepared document in this respect, He also initiated the currency notes in presence of these persons and started at 1.30 p.m. for Pratapgarh where the Patwar Circle Office is situated. At 300 p.m. the Dy. SP along with the entire party, which besides police official, consisted of two motbirs and the decoy stopped the vehicle about a mile earlier to Pratapgarh and directed the decoy motbir witnesses and one Ibrahim Khan to get down and go separately. He, bow ever, had already instructed the motbirs to be in close vicinity and see and hear what transpires between the accused and the decoy. At 4 00 pm. decoy Rokar Chand (PW 1) and accused Patwari, Kailash Chand, were seen entering the office i.e. Patwar Khana together and Ibrahim Khan and Subhash Chand also stood nearby. It was almost thereafter for more than a couple of hours that they remained standing there till 7.00 pm. when Dy. SP went inside on a signal from decoy and on reaching there, he introduced himself to the Patwari and demanded the money of the bribe he had received. Patwari refused to have accepted any bribe but the complainant said that he has kept the money in his shirt's pocket, thereafter the amount was got recovered and necessary formalities were completed. After doing all the formalities and verifying that the band wash to accused -appellant contained phenophthalein and Sodium carbonate, Patwari Kailash Chand was again asked how he came in possession of Rs. 50/ - on which it was stated that Rokar Chand had gone to him 2 -3 days earlier and that time he had asked some money as loan from him Rokhar Chand had told him that he would pay within 2 4 days and today he had paid him the same money. Rokar Chand, how ever, denied this fact.
(3.) INVESTIGATION was conducted and during investigation several record of the Patwarghar was seized. Copy of the Girdawari, which is alleged to have been issued to the decoy, was also produced. It was also the case of the prosecution that at the time when Dy. SP had entered the office accused Kailash Chand had passed ever an application purported to Lave been given by Rokarchand to him for issuance of copy to one Hanuman Sahai who, in turn turned it off and threw the pieces on the ground. After completion of investigation and obtaining sanction for prosecution, a charge sheet was, submitted against the accused -appellant in the Court of Special Judge, ACD. A charge was framed against him to which he denied and claimed and to be tried Prosecution, therefore, examined 12 witnesses in support of its case Accused denied the occurrence as alleged by the prosecution. His case is that Kamla had been cultivating the land, and, therefore, there was an entry in her name in Khara Girdawari and registers, from before his taking over as Patwari of the circle. He states that the copy of the Girdawari had already been taken long back by decoy after putting his signatures in Ghatna Bahi. His case is that he has returned a sum of Rs 50/ - which was as a repayment of part of the loan he had taken from Rokair Chand. He has stated that story of 10 -10 -1976 regarding payment of bribe is a fake story as he had gone to a different village on that day. His case is that decoy suspected that be was having illicit relations with decoy's sister Kamla, hence he was annoyed with him and also that he wanted his name to be inserted in place of Kamla in the Gast -Girdawari and since accused refused to do it, he made a plan and, obviously, implicated him in this case by inventing a story. He also examined Hanuman Sahai (PW 1) and Kanhaiya Lal (DW 2) as his witnesses.;