MATHUR, J. - (1.) THIS appeal is directed against the judgment dated 6. 8. 1981 passed by the learned Special Judge Anti-Corruption Cases, Jodhpur convicting the appellant of offence under Sec. 161 I. P. C. and Sec. 5 (2) of the Prevention of Corruption Act, 1947 sentencing him to undergo 1 year R. I and to pay a fine of Rs. 10,000/-, in default of payment to further undergo 1 month S. I.
(2.) THE prosecution case is that the complainant PW/1 Udaram had purchased 8 Bigha and 6 Biswa of land in village Manglana, Tehsil Parbatsar Distt. Nagour vide a sale deed dated 21. 01. 1975 for a sum of Rs. 1500/ -. He approached to appellant Kesaram Patwari of the area for mutation of the land in his name. THE accused appellant received the sale deed Ex. P/4 and demanded sum of Rs. 100/-for the favour. THE complainant expressed his inability to arrange the fund on account of poverty. THE accused told him that he may pay the said amount after Dipawali during the period from 5th Nov. to 10. 11. 1975. THE complainant was not interested in paying the bribe as such he decided to approach the Anti Corruption Department. THErefore, on 7. 11. 1975 he alongwith PW/2 Heeraram and PW/3 Chitarmal approached to PW/5 Himmat Singh the Dy. Superintendent of Anti Corruption Department. THE Deputy Superintendent of Police after receiving the complaint arranged a trap. Accordingly currency notes of Rs. 100/-were initialled by the Deputy Superintendent of Police. Phenol Pathelin Powder was applied thereon. A Panchnama was prepared entering number of the tainted currency notes. As per plan, the tainted currency notes were given by the complainant Udaram to the accused. On receiving the signal, the trap party made search of the person of the accused and recovered the tainted currency notes. THE necessary formalities were completed on the spot. After usual investigation, Police laid chargesheet against the appellant for the aforesaid offence. The appellant was charged for offence under Sec. 161 I. P. C. and 5 (2) of the Prevention of Corruption Act. He pleaded not guilty and claimed trial. The prosecution in support of the case examined five witnesses and produced number of documents. The accused in his statement under Sec. 313 Cr. P. C. stated that on 20. 10. 1975 he had gone to Parbatsar for depositing the Government recoveries. He returned at about 8 p. m. by bus. When he was preparing meal, at about 8. 30 p. m. Lalaram brother of the accused appellant came to him and said that he will stay with him in the night. He also took food with him. After taking food they spent some time in talking. In the morning at about 6 a. m. he went to the Patwar House and he found door closed from the outside. Lalaram was not in the Patwar House. Some how he got the door opened. He also opened the almira and found that Rs. 900/-were missing. He sent a man for Lalaram and Durga Singh. He told them about theft of Rs. 900/ -. Rameshchandra, Head Master of the school was also there. He told Lalaram that he will lodge a complaint before the Police against him for the theft of Rs. 900/. After interrogation at some length Lalaram confessed that he had committed theft of Rs. 900/-and agreed to return the entire amount. Accordingly he returned Rs. 500/-on the spot and he promised that rest of Rs. 400/-shall be paid on the next day. However, on next day, the complainant Udaram, brother of Lal Ram paid Rs. 300/-and promised to pay rest of Rs. 100/-within 2 to 4 days. But Udaram did not return to pay sum of Rs. 100/ -. On 8. 11. 1975 Udaram paid Rs. 100/-against the amount due of theft. On asking he produced currency notes of Rs. 100/-before the Dy. S. P. He denied the fact of receiving said amount as a bribe. He explained to the Sy. S. P. that he had received Rs. 100/-against the theft amount of Lalaram. He examined DW/1 Gordhanram, DW/2 Durga Singh and DW/3 Rameshchandra in support of his case. The learned Judge held the appellant guilty of offence under Sec. 161 I. P. C. and 5 (2) of Prevention of Corruption Act and sentenced as stated above. Assailing the judgment, it is contended by Mr. Garg, learned counsel appearing for the appellant that the Trial Court committed error in not appreciating the defence of the accused appellant in right perspective. It is submitted that the accused at the earliest disclosed the fact of receiving Rs. 100/-against the money due, on account of theft, committed by Lalaram. On the other hand, learned Public Prosecutor submitted that a bribe of Rs. 100/-was demanded by the accused appellant and the receipt of amount is not in dispute. There is presumption that the amount was received as illegal gratification. With respect of the defence, it is submitted that the same is false being after thought. I have considered the rival contentions and perused the record. The question which fall for the consideration in the instant case is whether the accused has succeeded in probelising the defence ? It is significant that it is not in dispute that the accused disclosed the defence pleaded in trial, immediately on the spot, when he was confronted by the Police. The Dy. Superintendent of Police PW/5 Himmat Singh has admitted that when he confronted the accused appellant with respect of the receipt of Rs. 100/-as bribe, he stated that the said amount was paid by Udaram as per their agreement. He also stated that a theft of Rs. 900/-was committed by Lalaram and his brother Udaram had promised to pay the said amount. He confronted the said statement to Udaram on the spot but, Udaram denied the correctness of the same. PW/3 Chitarram has also admitted in the cross examination that on the spot when the accused was confronted with the recovery of tainted currency notes of Rs. 100/-, he said that he had received the said amount with respect of theft committed by Lalaram. The version finds place in Ex. P/3, Panchnama of search and recovery of currency notes. In the said memo it is clearly stated that when the Dy. Superintendent of Police confronted the accused Kesaram with respect of recovery of tainted currency notes of Rs 100/-, he stated that the said amount was received against the amount due on account of theft of Rs. 900/-committed by Lalaram. DW/1 Gordhanram has stated that during the period 1961-78, he was Sarpanch of the Gram Panchayat, Manglana. In October, 1975 Lalaram committed the theft of Rs 900/-from almeera of the accused. Some people assembled at the Patwar House on the day when the theft was reported. In presence of Lalaram, Ram Singh, Gordhanram and Rameshchandra, Head Master, it was assured by Udaram that he will pay the entire amount Rs. 500/-were paid on the spot. The assurance was given that Rs. 400/-will be paid between 2 to 4 days Rs. 300/-were paid after 2-3 days. DW/2 Durga Singh has supported the defence version of the appellant. DW/3 Rameshchandra has also supported the defence version of the appellant. In my view the defence cannot be said to be after thought as it was taken at the earliest. The defence has been supported by prosecution witnesses as well as stated above. Thus, in my view the appellant has succeeded in problising the defence. The learned Judge committed obvious error in not appreciating the defence in right perspective. Consequently, the judgment of the learned Special Judge dated 6. 8. 1981 is quashed and set aside. The appellant is acquitted of offence under Sec. 161 I. P. C. and 5 (2) of the Prevention of Corruption Act. The finding in this case is confined to the present prosecution. It will have no reflection on Departmental enquiry if pending or initiated on the same allegations. The appellant is on bail. His bail bonds stand cancelled. . ;