ORDER
Mohd. Yamin, J.
1. Accused appellant Kanhaiyalal has been convicted and sentenced to one year’s rigorous imprisonment with a fine of Rs. 1000/-and in default to undergo rigorous imprisonment for three months under Section 161, I.P.C. and to 1½ years rigorous imprisonment with a fine of Rs. 1000/- and in default to further undergo three months rigorous imprisonment for offence under Section 5(1)(d)(2) of the Prevention of Corruption Act by learned Special Judge, Anti-Corruption Cases, Udaipur on 31-12-1979. It was ordered that the sentences will run concurrently. He preferred this appeal against the said judgment of conviction and sentence.
2. Briefly stated, Radhey Shyam son of Laxmi Lal resident of Babrana Tehsil Kapasan District Chittorgarh came to Additional Superintendent of Police, Anti-Corruption, Udaipur who was holding camp at Kapasan on 18-3-78 and submitted report Ex. P/2 alleging that subsidy of Rs. 1,343/- was sanctioned in the name of his mother under the Dry Land Agriculture Development, Pilot Project for purchase of a water pump. Accused appellant Kanhaiyalal asked him to pay 10% as bribery. At the time of sanction, the complainant requested him not to charge the money and requested that since he was in dire need of money, he was not able to pay and later on after arranging he would pay. The FIR Ex. P/2 further stated that the well situated on the field of his mother was deepened and an application form to obtain subsidy was submitted to the Project Officer of Kapasan. The depth of the well was to be measured by the field man (accused appellant) and Assistant Engineer of the Office of Project Officer. On 16-3-78 Kanhaiyalal accused appellant demanded a sum of Rs. 100/- for himself and for the Assistant Engineer and assured that the depth of the well will be measured and then only subsidy for the purpose can be given. He threatened that in case the amount was not paid then the subsidy would not be given nor verification would be done. Since Radhey Shyam did not intend to bribe, he went to the Additional S.P. and submitted the report.
3. The Additional S.P. who was holding camp at Kapasan Dak Bungalow, read over the report to complainant and he accepted it to be true. The complainant desired that the accused appellant may be caught red handed. He submitted currency notes worth Rs. 100/-. Then Daya Shatikar Head Constable was sent to procure two independent witnesses. Khattumal was brought by Daya Shankar. Roshanlal was already present. Currency notes which were 8 in number were signed by the Additional S.P. The complainant told to the Additional S.P. that the accused appellant would accept the amount in Kapasan at Shrinath Jalpan Graha in the evening. The Additional S.P. then demonstrated the use of phenolphthalein powder to the complainant and the witnesses. The witnesses were instructed to see the passing of money to the accused appellant. Phenolphthalein powder was sprinkled on the currency notes and then they were handed over to the complainant who was asked to hand over the same to the field man or Assistant Engineer on demand. The complainant was instructed that he may give a signal after payment by keeping his right hand on his head so that the trap may be laid. Then all these persons left the Dak Bungalow. Thereafter. Shankar the Head Constable, Jawahar Lal L.D.C., Bhanwarlal and Babulal went from Dak Bungalow towards bus stand of Kapasan in Jeep No. RSG-1514 which was being driven by Ram Singh Driver. Shrinath Jalpan Graha is situated at Bus Stand. The jeep was stopped and the driver was instructed that he should lie beneath the jeep pretending that the jeep required some repairs.
3. The Additional S.P. and Sub-Inspector Amar Singh went into the hotel as customers where they took some edibles. At about 8.45 p.m. accused appellant Kanhaiyalal and Mahaveer ahatma, cashier entered into the hotel along with Radhey Shyam. All of them entertained themselves with tea. At that time Radhey Shyam and Chattu Lal were standing at the gate of hotel. Head constable Daya Shankar was also standing there. After taking tea, accused appellant obtained the currency notes along with a sum of Rs. 5/- for the prescribed application form and then complainant Radhey Shyam gave the signal. It were Roshanlal, Khattumal, Head Constable Daya Shankar and S.I. Amar Singh who saw the passing of currency notes to the accused appellant. Complainant asked the accused appellant to count the currency notes and the accused appellant replied that ^^fxu j[ks gSa iwjs gh gksxs A** and then he started counting the currency notes. After signal was given by Radhey Shyam, Additional S.P. Shri Durgalal Sharma along with Daya Shankar and Amar Singh reached near the accused appellant. They gave their introduction and told the accused appellant that he had received the sum of Rs. 100/- as bribery in order to get the subsidy sanctioned to Radhey Shyam. Kanhaiyalal became nervous and was taken aback. He was not able to speak and pressed his left palm containing the currency notes. He was brought to a chowk where lights were on Roshanlal, Khattumal, Mahaveer Mahatma and complainant also came there. Then Additional S.P. asked him to sit on the bench keeping his hand up. He was asked as to where he had kept the money, then accused appellant opened the fist of his left hand and presented currency notes worth Rs. 105/-. Then the hands of the accused appellant were washed in the solution containing sodium carbonate. The water turned pink and the solution was sealed in bottles. The numbers of the currency notes were tallied with the memo prepared before trap, and found that the currency notes were the same which were handed over to Radhey Shyam after spreading phenolphthalein powder on them. The currency note of Rs. 5/- recovered from the accused appellant was extra. This currency note of Rs. 5/- was initialed by Additional S.P. at that time. This currency note was given to the accused appellant to obtain application form.
4. A case was registered under Section 161, I.P.C. and Section 5(1)(d)(2) of the Prevention of Corruption Act. After investigation a charge-sheet was submitted to the learned Special Judge after obtaining sanction. Learned Special Judge framed charges under the said sections against the accused appellant on 16-4-79. He denied his indictment and claimed trial. Thereupon prosecution examined as many as 20 witnesses in support of its case. Accused appellant was examined under Section 313, Cr.P.C. He examined two witnesses viz. SatyaDeo and Noor Mohd. He also examined himself as a witness of defence. His defence was that Radhey Shyam took him to a hotel on 18-3-78 along with Mahaveer Chand. At. that time he gave a currency note of Rs. 5/- for form which the accused appellant kept in his pocket. When the accused appellant was taking tea, Radhey Shyam put his hand in the pocket of the accused appellant and put the currency notes. His defence was that Radhey Shyam had earlier purchased an engine with the help of subsidy but he sold it at Bhilwara. Complaint to this effect was made to Project Officer by the accused appellant and he suggested that subsidy should not be given. Radhey Shyam then had come to his office to obtain subsidy and the Project Officer had refused. At that time Radhey Shyam had stated that the person who had made complaint (accused appellant) would be seen by him and, therefore, the accused appellant was falsely implicated.
5. I have heard the learned counsel for the accused appellant as well as learned Public Prosecutor at length.
6. Learned counsel for the accused appellant first submitted that the sanction to prosecute the accused appellant is not valid. On facts, he submitted that there was no occasion for the accused appellant to demand bribe and that the prosecution has not been able to prove the demand as there is vague evidence about it. He also submitted that even application form was not filled up and submitted, therefore, the question of demand did not arise. He also submitted that the application form was not submitted is proved by the fact that a sum of Rs. 5/- was paid by the decoy to the accused appellant and this amount was recovered from the accused. So the question of demand would not arise. He further submitted that even otherwise there is no evidence of demand on the part of the accused appellant because on the date of occurrence the accused appellant was out on tour. He submitted that the accused appellant did not accept the money and instead the money was transplanted. He submitted that the accused appellant probabilised his defence by preponderance of probabilities. He submitted that in the circumstances the accused appellant deserves acquittal.
7. On the other hand, learned Public Prosecutor has vehemently opposed all these arguments.
8. First I will take up the sanction. Learned counsel for the accused appellant submitted that according to Section 6 of the Prevention of Corruption Act, it was necessary that the sanction should be given by an authority which would have been competent to remove the accused appellant from his office. Section 6 of the Prevention of Corruption Act, 1947 is as follows:
6. Previous sanction necessary for prosecution. (1) No Court shall take cognizance of an offence punishable under Section 161 or Section 164 or Section 165 of the Indian Penal Code (45 of 1860) or under Sub-section (2) or Sub-section (3) of Section 5 of this Act, alleged to have been committed by a public servant except with the previous sanction :-
(a) in the case of a person who is employed in connection with the affairs of the Union and is not removable from his office save by or with the sanction of the Central Government, of the Central Government;
(b) in the case of a person who is employed in connection with the affairs of a State and is not’ removable from his office save by or with the sanction of the State Government, of the State Government;
(c) in the case of any other person, of the authority competent to remove him from his office.
(2) Where for any reason whatsoever any doubt arises whether the previous sanction as required under Sub-section (1) should be given by the Central or State Government or any other authority, such sanction shall be given by that Government or authority which would have been competent to remove the public servant from his office at the time when the offence was alleged to have been committed.
In this case Clause (c) of Sub-section (1) of Section 6 applies. It means that the person giving sanction should have been competent to remove the accused appellant from his office. Mahesh Chandra Bhargava P.W. 7 is the Joint Director of Agriculture. Admittedly before coming into force of the Rajasthan Agriculture Subordinate Service Rules, 1978 the powers were delegated by notification dated 10-2-79 to the Joint Directors to appoint members of subordinate service. But when the Rules came into force, the Director became the competent authority as notification stood withdrawn. There is no notification thereafter authorising the Joint Director to appoint any member of the subordinate service after coming into force of the said Rules. Consequently when the Joint Director did not continue to be the Appointing Authority, he could not be the authority competent to remove a member of subordinate service from his office. The sanction was challenged before the Court below on the ground that P.W. 7 Mahesh Chandra Bhargava did not apply his mind before giving sanction. It appears to be true as he did not apply his mind to the fact that he was not authorised to remove the accused appellant on the date on which he gave sanction. The sanction Ex. P/12 is dated 15-3-79, the date on which Shri Bhargava was not authorised to remove the accused appellant as the Rajasthan Agriculture Subordinate Service Rules, 1978 had come into force on 29-6-78 and the notification authorising the Joint Director dated 10-2-79 stood withdrawn. So the necessary corollary is that Shri Bhargava was not the authority competent to remove the accused appellant from his office.
9. Learned PP submitted that the matter can be remanded for fresh sanction but the learned counsel for the accused appellant cited Mansukhlal Vithaldas Chauhan v. State of Gujarat JT 1997 (7) SC 695 : 1997 Cri LJ 4069 wherein it has been observed that normally when the sanction order is held to be bad, the case is remitted back to the authority for reconsideration of the matter and to pass a fresh order of sanction in accordance with law. But in the instant case, the incident is of 1983 and, therefore, after a lapse of fourteen years’, it will not, in our opinion, be fair and just to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant to another innings of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution which, as part of right to life, philosophizes early end of criminal proceedings through a speedy trial.
10. My attention goes to a recent judgment of Apex Court reported as State of Orissa v. Mrutunjaya Panda JT 1998 (1) SC 77: 1998 Cri LJ 782 in which it has been observed that any error or irregularity in any sanction for the prosecution shall not be a ground for reversing an order of conviction as per Section 465, Cr.P.C. unless in the opinion of the Appellate Court a failure of justice has in fact been occasioned thereby. In determining whether any error or irregularity in any sanction for the prosecution has occasioned a failure of justice, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage of the proceedings. The Apex Court further observed that the High Court was required to decide, after recording a finding that there was some error or irregularity in the sanction, whether such error or irregularity occasioned a failure of justice and further whether such objection regarding the validity of the sanction was raised in the trial Court. Even according to this citation I find from the record that the objection regarding its validity was raised in the trial Court. The sanction could not have been given by P.W. 7 Shri Bhargava as he was not competent to remove the accused appellant and in view of this circumstance the sanction without authority has occasioned a failure of justice to the accused appellant. The very basis of prosecution goes away because the sanction was given by a person who was not authorised to do so. He might be authorised to appoint the accused appellant before coming into force of the Rules but he was not the authority competent to remove the accused appellant from his office after coming into force of the above said Rules. In this case I find that the occurrence is alleged to have taken place on 18-3-78 and after 20 years it will not, in my opinion, be fair and just to direct that the proceedings may again be initiated from the stage of sanction so as to expose the appellant to another innings of litigation and keep him on trial for an indefinitely long period contrary to the mandate of Article 21 of the Constitution, which is part of right to life, philosophizes early end of criminal proceedings through a speedy trial. So I hold that the sanction by an authority who was not competent to remove the accused appellant from his office, is not a valid sanction in this case. The same was challenged before the trial Court and in my opinion a failure of justice has in fact been occasioned.
11. Now the question is whether the prosecution is able to prove that any demand was made by the accused appellant? Learned counsel for the accused appellant submitted that there was no occasion for the accused appellant to demand bribe. He has further submitted that the prosecution has not been able to prove the demand as there is very weak and vague evidence. His contention is that since no work was pending before the accused appellant, question of demand did not arise. He submitted that the complainant had not even submitted the required application form in order to obtain subsidy. So the accused appellant had no occasion to ask for any money. He drew my attention to the FIR, to the statement of P. W. Radhey Shyam and to the fact that a sum of Rs. 5/- was paid by the witness to accused appellant in order to obtain application form. The FIR Ex. P/2 mentions:
^^esjh ekrkth ds [ksr ij dqvk xgjk djok;k gS
mlds fy, vuqnku izkIr djus dk izkFkZuki= QkWeZ ds :i esa Hkjdj ‘kq”d [ksrh
ifj;kstuk vf/kdkjh diklu dks fn;k gS xgjs gqq, dq, dk uki mijksDr dUgS;kyky
QhYMeSu vkSj vlhlVsUV bUthfu;j osjhQhds’ku djsxk A**
12. Learned counsel for the accused appellant emphasising on these words submitted that the FIR itself mentions a wrong fact and actually no form was given by the informant. My attention has been drawn to the statement of P.W. 1 Radhey Shyam. He stated that he had filled up the form to obtain subsidy for purchase of water pump which is Ex. P/1. I find from Ex. P/1 that it Hid not relate to digging of well. The charge against the accused appellant is that he received a sum of Rs. 100/- in order to get subsidy sanctioned by misusing his office. This subsidy to be paid was in relation to digging of well as stated in Ex. P/2, FIR. But P.W. 1 Radhey Shyam in his statement on oath has stated some what different. According to him a sanction of Rs. 1343.50 was made and out of it cashier Mahaveer Chand kept a sum of Rs. 240/- with him. Only a sum of Rs. 140/- was paid and a sum of Rs. 100/- was retained as commission. It was Mahaveer Chand Mahatrha who asked him to talk to accused appellant and then he contacted the accused appellant. They had an altercation and at that time the accused appellant told that in case a sum of Rs. 100/- was not left, impediments would be put by the Assistant Engineer in sanctioning subsidy for deepening the well. Accused appellant had at the same time given an application for subsidy to deepen the well to Shri Vaishnav who was higher in rank to the accused appellant. But this is also not correct because P.W. 16 Nandlal, Project Officer, has stated that no such application was presented in his office by the accused appellant in order to obtain subsidy for deepening the well. If it was correct, there was no reason for Radhey Shyam to pay Rs. 5/- as application fee to the accused appellant at Hotel before the trap. He has admitted in the cross-examination that accused appellant Kanhaiyalal had made a complaint orally that the pump set purchased out of subsidy granted to Radhey Shyam’s mother was not available at the site. Therefore, he had gone to the site and checked. Pump set was not found. So the defence of the accused appellant that he had made a complaint to the Project Officer that the accused appellant had removed the pump set from the site is probabilised. It might be a reason to falsely implicate the accused while there is no such evidence that decoy Radhey Shyam had given any application to grant subsidy for deepening the well. So the argument of the learned counsel for the accused appellant that there was no work pending with the accused appellant has a farce. The complainant tried to falsely implicate the accused by mentioning wrong facts in the FIR. It is further proved by the fact that a currency note of Rs. 5/- was found with the accused appellant which was initialed by Additional S.P. at the time of recovery. This currency note was for purchase of an application form for subsidy. There is ample evidence to the effect that the form was available on payment of Rs. 5/-.
13. So far as the demand is concerned, the case of the prosecution, as per FIR Ex. P/2, is that the demand was made on 16-3-78 in relation to sanctioning of subsidy for deepening the well but P.W. 1 Radhey Shyam decoy has stated that he paid a sum of Rs. 100/- with regard to the earlier sanction which was granted on the basis of form Ex. P/1 and that related to purchase of pump set. It means that no demand was made by the accused appellant for the subsidy to be paid for deepening the well. P.W. 1 Radhey Shyam admitted in his cross-examination that the form was given to accused appellant on 16-3-78 for grant of sanction of subsidy in the office after the lunch time. But this is contradictory to his earlier version that the application was handed over to Shri Vaishnav. According to Radhey Shyam P.W. 1, Ghasilal, Gordhan, Heeralal and Shyam Lal were present at that time. He further stated that one Gopilal stood surety on the form and the report of patwari was also made on the form. P.W. 14 Ghasilal is the only witness out of these persons who has been produced by the prosecution. He has not supported the case of the prosecution. He is a business man and has stated that Radhey Shyam’s mother got her old well deepened. He has categorically stated in his cross-examination that he did not accompany Radhey Shyam at the time when any form for the purpose might have been given in the office of the Project Officer. The prosecution has withheld all other witnesses because it knew that no such application form was submitted by Radhey Shyam and had they been produced, they would not have supported the prosecution story. Gopilal was a material witness who is said to have stood surety for the subsidy but non-production of this witness further proves that no such application form was submitted. Though patwari is said to have made report on application form, but P.W. 9Shi v Shankar patwari has disproved the fact by saying that Radhey Shyam did not bring any form in order to obtain any report from him so that Smt. Rukmani may get any subsidy for deepening the well. It is proved by this negative evidence that no such verification was made by the patwari. Hence form to obtain subsidy for Rukmani could not have been and was not presented to the accused appellant. So no work was pending and the demand of Rs. 100/- could not have been made by the accused appellant. When it is proved beyond doubt from the record that no such application form was submitted, it cannot be held that any work was pending with the accused and any demand could be made by him in relation to sanction to be made with regard to deepening of well. P.W. 1 Radhey Shyam has himself admitted that he did not pay the money for the purpose. According to him instead the amount was paid to the accused appellant for the work which had already been done and for which there is no charge against the accused appellant.
14. The demand could not have been made by the accused on 16-3-78 is further proved by the fact that the accused appellant was on tour during the period right from 14th to 16th March, 1978. Attendance Register Ex. D/5 mentions that the accused appellant was on tour on 16-3-78. This fact is proved by D. W. 1 Satya Dev Sankhla who produced the Attendance Register Ex. D/5 and proved it. There is no reason to disbelieve the attendance register which mentions that on above dates the accused appellant was on tour. From the above evidence, it is not proved that the appellant had made any demand from Radhey Shyam.
15. There is still a very special feature of this case. It appears that the case has been foisted against the accused appellant with the aid of a political worker. He is P.W. 17 Roshanlal on whom Radhey Shyam called upon to make a complaint against Kanhaiyalal. This political worker who is a photographer by profession took Radhey Shyam to the Additional S.P. of Anti- Corruption at Chittorgarh who arranged the trap. He was so enthusiastic to get the accused appellant trapped that he arranged meeting of Radhey Shyam with Additional S.P., discussed with him everything. He admits that he and Kanhaiyalal even on the date of trap went together to the house of accused appellant where they came to know that he had gone on tour. From his statement, it appears that he was the main person and Radhey Shyam simply assisted him. In the circumstances of this case I am of the view that it is he who being the District President of Janta Yuwa Morcha arranged to foist a case against the accused appellant after knowing from Radhey Shyam that some officials of the project office including Kanhaiyalal were in habit of taking commission.
16 So far as the factum of demand is concerned, the case of the prosecution is that the accused appellant made a demand from Radhey Shyam on 16-3-78 as alleged in FIR Ex. P/2. But as discussed earlier Radhey Shyam has not been able to prove it at all. There is no corroboration of demand at all. The demand could not have been made in the circumstances of the case because no application was submitted in the office or given to the accused appellant.
17. The next question is whether the money passed to the accused appellant? There is very conflicting evidence even about it. According to P.W. 1 Radhey Shyam the money was given by him to the accused appellant in the hotel. He also gave a sum of Rs. 5/- in addition to tainted money for purchase of form and as per his statement the money was being counted by the accused appellant when he was trapped. According to P.W. 2 Khattumal the currency notes were in the hands of accused appellant when he was trapped. From his statement it is proved that the amount did not pass to the accused appellant before him. He was called from his house after the incident was over. According to P.W. 3 Daya Shankar the tainted currency notes were in the hands of the accused appellant. P.W. 11 Mahaveer Chand Mahatma who accompanied accused appellant to the hotel has stated that Radhey Shyam asked Kanhaiyalal that he may obtain an application form for him. Radhey Shyam then passed over a currency note of Rs. 5/- for purchase of application form. Tainted money did not pass over before him. He did see the currency notes in the hand of Kanhaiyalal. The currency notes were later on counted and it amounted to Rs. 105/-. According to him Kanhaiyalal was wearing a bushirt having a pocket. He admitted that Kanhaiyalal told him that Radhey Shyam had inserted the money in his pocket by force.
18. P.W. 17 Roshanlal, who was instrumental in arranging the trap, has been made a witness of trap. According to him, Kanhaiyalal and Mahaveer Chand Mahatma returned at about 9 or 9.30 p.m. and at that time Kanhaiyalal asked Radhey Shyam if he had brought the money. Then Radhey Shyam told that he may take tea at the hotel and that he was bringing the money. Then Radhey Shyam went to a chowraha and came back and then passed the currency notes to the accused appellant. The story of visit of Radhey Shyam to a chowraha does not find support from any other witness or even P.W. 19 Durgalal, Addl. S.P. According to him Kanhaiyalal was keeping the money in his pocket then Radhey Shyam asked him to count and at that time accused appellant was trapped. This statement is contradictory to what P.W. 11 Mahaveer Chand Mahatma has stated. P.W. 17 Roshanlal has materially contradicted P.W. 11 Mahaveer Chand Mahatma and P.W. 1 Radhey Shyam by introducing a story that Radhey Shyam first asked the accused appellant to sit in the hotel and take tea and then he brought the currency notes and that Radhey Shyam asked the accused appellant to count the currency notes. If Radhey Shyam was giving the money as bribe he ordinarily would not ask the accused appellant to count the currency notes and the accused appellant would not count and would hurriedly put in pocket, P.W. 1 Radhey Shyam asked to count to be sure that the hand of accused may have strong impact of phenolphthalein powder.
19. In these circumstances Durgalal P.W. 19, the officer who arranged the trap, becomes an important witness. He was definitely interested in a successful trap. He has stated that he was sitting in the chowk of Shrinath hotel and at about 8.45 p.m. Radhey Shyam came in the hotel along with two persons with whom he took tea and passed the money to the accused appellant. He was seeing the passing of money. According to him the money was not kept by the accused appellant, in his pocket as he had started counting and by that time he reached to the accused appellant and caught hold of him. According to him the accused appellant submitted the currency notes which were in his hand. The accused appellant told that a sum of Rs. 5/- was given to him for the purpose of purchasing the application form. This fact is mentioned in Ex. P/8. He has also mentioned in Ex. P/8 that accused explained that he was to accelerate the work of Radhey Shyam. Since no work of Radhey Shyam was pending with the accused appellant, this explanation could not have been given by the accused appellant. The case of the defence was put to the witness when he was asked that the accused appellant told that the money was inserted in his pocket which he was returning. Further defence of the accused appellant was put to this witness that he asked the accused appellant to name the Assistant Engineer otherwise he would be roped in. Admittedly the currency notes passed over to the accused appellant; but not as bribery. The case of the defence is that Radhey Shyam inserted the money into the pocket of the accused appellant and when accused appellant was counting he was caught. They could not be given as bribery because firstly it is not proved that any work was pending with the accused appellant. Secondly it is not proved that any demand was made by the accused appellant. It is also proved that a sum of Rs. 105/- was recovered from the accused appellant but it is not proved that out of it a sum of Rs. 100/- was given to the accused appellant as bribe.
20. The defence of the accused appellant is probabilised. Accused appellant is said to have asked Radhey Shyam as to what for he had given the money and Radhey Shyam told him that the money was not for the accused appellant but for the Assistant Engineer and then the accused appellant returned the money and was caught. When Radhey Shyam himself admits this proposition, the case of the prosecution that the accusedappel-lant had accepted the money as bribe fails to the ground. The defence of the accused appellant is further probabilised by P.W. 16 Nandlal who has admitted that the accused appellant had made a complaint to him that Radhey Shyam had removed pump set purchased out of subsidy and when he checked the same was not available. When Radhey Shyam had come in the office to obtain further subsidy, the Project Officer had denied and at that time Radhey Shyam had threatened the accused appellant.
21. Further defence of the accused appellant is that Radhey Shyam inserted the money into his pocket without his knowledge. To this effect Kanhaiyalal has given his statement as D.W. 2 and has stated that the money was put in his pocket by Radhey Shyam without his knowledge. When he put his hand in the pocket and found currency note the same was taken out to return to Radhey Shyam he was trapped at the very moment. D. W. 3 Noor Mohd. has stated that he was present in the hotel and at that time Radhey Shyam first passed over a sum of Rs. 5/- to Kanhaiyalal and at the time when Kanhaiyalal was giving some money to Radhey Shyam at that point of time he was trapped. The defence theory that amount was put in the pocket does not appear to be correct. It appears that the money could not have been inserted into the pocket of the accused appellant by Radhey Shyam. Instead it appears that when it was being passed and was in the hands of the accused appellant, trap was laid. The amount definitely was not the bribe. From the prosecution witnesses it is proved that there was no work of Radhey Shyam pending with the accused appellant therefore he could not have given any money as bribery. Secondly, the case of the prosecution is contradictory to its story. First the prosecution tried to say that the accused appellant demanded money on 16-3-78 in order to sanction subsidy to be granted to deepen the well but the demand was not proved. Then it is said that amount was demanded by Shri Vaishnav but there was no work pending with Shri Vaishnav or in the office of Project Officer. Then the prosecution came with the version that the amount was given to the accused appellant to pass over to the Assistant Engineer but there was no work pending with the Assistant Engineer as well. There was no demand by the Assistant Engineer even. The third story of the prosecution is that the money was given to the accused appellant to accelerate the work but when no work was pending, question of acceleration did not arise. The most important and salient feature of this case is as stated by me earlier that it was because of intervention of political worker that the accused appellant was got trapped.
22. Learned counsel for the accused appellant relied on large number of citations all of which need not be cited because the gist of them is that the demand is the back bone of a case and failure to prove it renders the case highly suspicious Amar Gupta v. State of Rajasthan 1993 (3) WLC (Raj) 147 and that the prosecution has to prove demand, its acceptance and payment of amount as bribery Gajanand v. State of Rajasthan 1989 (2) WLN 391. In AIR 1994 SC 1538 : 1994 Cri LJ 1383; Babulal Bajpai v. State of U.P. it has been observed that when there is no motive for demanding or accepting bribe proved as no work of the complainant was pending with the accused, the acquittal of the accused by trial Court is justified.
23. In view of above discussion the prosecution has not been able to prove its case and the accused appellant deserves acquittal.
Consequently, the appeal is accepted. Accused appellant Kanhaiyalal is acquitted from the charges of Section 161, I.P.C. and Section 5(1)(d)(2) read with 5(1) (c) of the Prevention of Corruption Act. He is on bail. He need not surrender to his bail bonds which are hereby cancelled.