JUDGMENT
Gopal Krishan Sharma, J.
1. This appeal has been preferred against the judgment dated 22nd Oct., 1977, passed by the Special Judge for the ACD-Cases, Jaipur, by which, the appellant has been convicted under Section 161 IPC, and sentenced to 1 year’s simple imprisonment and a fine of Rs. 200/-, and in default of payment of fine, to further undergo 1 month’s simple imprisonment; and under Section 5(1)(d) and (2) of Prevention of Corruption Act (for short, “the Act”), to 1 year’s simple imprisonment and a fine of Rs 200/-. and in default of payment of fine, to further undergo 1 month’s simple imprisonment. Both the sentences were, however, ordered to run concurrently.
2. The appellant was working as Office Superintendent, in office of the CM and HO, Maharana Bhim Singh Hospital, Kota. On 18th Dec, 1973, one Labhchand, at about 8.15 a.m. lodged a written-report before the Additional Superintendent of Police, Anti-Corruption Department, Kota (for short, “the ASP), alleging therein that he was transferred from Office of the CM and HO, Kota, to that of the District Medical and Health Officer, Kota, and he had joined duties there on 13th Nov., 1973. His service-book and other relevant documents which were sent by the CM and HO, Kota, were not complete, and the same were returned to office of the CM and HO, for removing the defects, and for full remarks. That file was not received back till 18th December, 1973. In this connection, when he inquired from the Office Superintendent of CM and HO the Office, Kota (the appellant), the latter told him that if Rs. 50/- were paid to him as bribe, he would get his service-record completed. Because, he did not want to pay the bribe, the appellant withheld the record. In this connection, Labhchand met the appellant 2-3 times more, and requested him to send his service-record, but, the latter again demanded Rs. 50/-, as bribe. Informant Labhchand did not want to pay the bribe and wanted to get the appellant entrapped. He also produced currency notes of Rs. 50/- to the ASP.
3. On this report, the ASP called two motbirs, and made all prerequisite arrangements for laying a trap. The currency-notes were smeared with phenolphthalein-powder, and initials were put by the ASP on the said currency-notes. Then, a memo for handing over the notes, was prepared, and all reached the hospital. The trap was laid. Upon receiving signal, the ASP, after disclosing his identity, caught hold of the accused, and recovered the amount from him. The accused, at that time, offered his explanation that he had given a loan of Rs 80/- to the decoy, and that out of that, the latter had returned Rs. 30/- earlier, and the balance of Rs. 50/- was paid back by him, on that date.
4. After completing usual investigation and obtaining sanction for prosecution, from the Director, Medical and Health Services (DM and HS), Rajasthan, Jaipur, a challan was submitted in the court of Special Judge, ACD Cases, Jaipur.
5. The learned Judge framed charges under Section 161, IPC and under Section 5(d)(1) and (2) of the Prevention of Corruption Act, against the accused-appellant, who pleaded not guilty and claimed trial.
6. The prosecution, in support of its case, examined 6 witnesses. The accused also examined 3 witnesses in his defence.
7. After concluding the trial, the learned Judge found the accused guilty and sentenced him as mentioned above.
8. The learned Counsel for the appellant argued that the entire case has been fabricated and the accused-appellant has been falsely implicated in this case, which is a made out one. According to him, Akhilanand PW 5 and his brother Nityanand both were working in office of the CM and HO. for the last 20 years. When ever anyone of them was transferred from that office, they used to manage their transfer cancelled, through the intervention of the higher authorities, including Ministers.
9. Pitambar Dayal Mathur PW 1, who was Director, Medical and Health Services, Rajasthan, Jaipur, in the year 1975, has stated in his cross-examination that Akhilanand was a clerk in his office, and that the CM and HO had submitted a report that Akhilanand and his brother were misusing their positions, in the matter of transfer.
10. It was also argued by the learned Counsel for the appellant that Nityanand, brother of Akhilanand was transferred, but, his transfer was cancelled upon the intervention of the Minister concerned, which created enmity between the accused who was the Office Superintendent, and Akhilanand PW 5 who was UDC in the same office. There is nothing on the record to give adverse inference about misusing the post by Akhilanand also that he generally, used to approach the higher authorities for cancelling his transfer-orders. Even P.D Mathur, the then Director of Medical and Health Services has stated so. Thus, it is clear that Akhilanand and his brother Nityanand were in office of the CM and HO, Kola, for a very long period, and when ever either of them was transferred from that place, they could manage cancellation of their transfers, which certainly created enmity with the accused appellant, who was the Office-Superintendent in office of the CM and HO, Kota.
11. It was argued on behalf of the appellant that Labhchand was working as UDC in officer of the CM and HO. He was transferred to office of the District Medical and Health Officer, Kota. His record and service-book were sent to the DM and HO Office Kota. It is on the record that while Labhchand was working in office of the CM and HO, Kota, he had very good relations with appellant R.L. Bhatnagar. In the year 1973, there was strike in the department, and during that period, Labhchand had taken Rs. 80/- as loan from the appellant. Labhchand himself has admitted that he had very good relations with the accused appellant. After his transfer, his personal file and the service-book had reached office of the DM and HO, Kota. The service-book was, however, incomplete. The contention of the accused was that he had paid Rs. 80/- as loan to Labhchand, who had later on returned Rs. 30/- only; and then, in the month of Nov. 1973, he was transferred, but, he did not pay back the remaining Rs. 50/- and that was the amount of Rs. 50/- which was paid by Labhchand to him, on 18th Dec. 1973. So, the accused has given explanation for his receiving Rs. 50/- from Labhchand, at the very moment when he was searched by the ASP, ACD, and when he was arrested and the amount was recovered from his possession.
12. The point to be seen is whether the accused bad demanded from Labhchand, some bribe, for completing his service-book or not. He has not denied that the service-record of Labhchand was sent to the DM and HO Office, Kota, at the time of his transfer. Labhchand says that his service-book was incomplete, and so, it was sent back to office of the CM and HO, for completing the necessary entries, and that, for that, the accused had demanded Rs. 50/- from him There is nothing on the record to prove the fact that the accused had demanded Rs. 50/- from completing his service-book. If the accused had to demand this money, he would have demanded it before sending the personal file and the service-record of Labchand to office of the DM and HO, Kota. At the time of transfer of Labchchand, when his record etc were sent to office of the DM and HO, Kota, no bribe was demanded by the accused. Thereafter, the record was sent back to office of the CM and HO, Kota; and according to the decoy, the accused then demanded Rs. 50/- from him for completing his service-record. This statement is not believable. Had the accused-appellant any intention of demanding bribe from Labhchand, he would not have sent his service-record etc. to the office of DM and HO, Kota, at the time of transfer of Labhchand, and he could have demanded the bribe, at that point of time. Then, if the personal-file and service-record of Labhchand were received back by the CM and HO Office, Kota, that must have been received by the receipt-clerk. Admittedly, Akhilanand was working as Establishment-Clerk in office of the CM and HO, and all the personal files and service-records of the clerks used to be maintained by the Establishment Clerk. So, the file which was received back from office of the DM and HO, Kota, was received by the receipt-clerk, and later on, it must have been handed over to Akhilanand, who was Establishment-Clerk. The file did not reach the table of the Office-Superintendent, straightway, according to the procedure and working of the office. It was first received by the receipt-clerk; and then, it was delivered to the Establishment-Clerk. It cannot be believed that after the receiving of the file it was sent to the officer concerned directly. It always reaches the officer concerned through the clerk concerned. So, the file of Labhchand, after its receipt from the DM and HO, Kota, could not have reached straightaway to the Office. Superintendent (appellant), and it must have gone from the receipt-clerk, to Akhilanand PW 5, who was Establishment-Clerk in that office, and he was the person who was to submit the said file to the Office-Superintendent (appellant) for the needful, and then the latter would have forwarded it to the officer concerned. There is nothing on the record to show that Akhilanand PW 5, Establishment Clerk had submitted the file before the Office-Superintendent (appellant).
13. After perusing the recovery-memo Ex P 6, it is found that the service-book of Labh Chand and his personal-file were recovered from the top of the almirah of the Office Superintendent, which were lying under a number of files, and on the top of one wooden almirah. Akhilanand PW 5 and Buddhi Prakash Gautam DW 3 were the recovery-witnesses. It is strange that the file of Labh Chand was found lying under a number of other files, and on the top of the almirah, which was in the room of the Office-. Superintendent (appellant). There is no proof on the record that the said file, was sent to the Office-Superintendent either by the receipt-clerk or by the establishment-clerk. Then, how this file reached the Office-Superintendent, is a very important aspect. The file was recovered from the office-room of the Office-Superintendent, and the important aspect is that the said file was found lying under a number of other files, and on the top of the almirah. How and why this file was in a hidden condition and at such a place? For the sake of argument, even if it is believed that the file was received from the office of DM and HO. Kota, and was handed over to the accused-appellant, then, in that case, the appellant would either keep it in his almirah or on his table, but, where was the necessity of keeping that file on the top of the almirah and that too under so many files? In my view, the prosecution should have proved that the file was received from office of the DM and HO, Kota to that of the CM and HO, Kota, and it was handed either by the establishment-clerk or by the receipt-clerk to the Office-Superintendent (appellant). In the absence of such proof, it cannot be presumed that the accused had received the file from office of the CM and HO, and that in order to take bribe, he had hadden the said file on the top of the almirah in his office-room.
14. Then, the question arises as to who kept the file there on the top of the almirah. Akhilanand PW 5 was the establishment-clerk in the same office. He had free entry to the office-room of the accused. As observed, he had also enmity with the accused-appellant. So, the possibility could be that some body else might have kept the file on the top of the almirah. Who could be that man, the question remains there The receipt-clerk who had received the file from office of the DM and HO, Kota, and the establishment-clerk Akhilanand, were the two concerning persons in the matter. So, the probability cannot be ruled out that one of them might have kept the file there, without bringing it to the notice of the Office-Superintendent.
15. Budhi Prakash DW 3 has stated that he was despatch-clerk, and that when the file came to him, he noticed that it was not having signatures and seal of the office, and so, he sent it to the office of Akhilanand, the establishment-clerk. Thus, this fact indicates that the file must have been kept in the room of the Office-Superintendent, by Akhilanand, and none-else, as there was no proof that after receiving back the file, the accused had demanded bribe from Labh Chand, to complete his file.
16. Another question is what was the necessity of getting the file early? Labh Chand was transferred to office of the DM and HO, Kota. It is not disputed that he was getting his salary regularly. Where was the urgency of sending the file back to office of the CM and HO? Labh Chand, in this connection has stated that he wanted to avail privilege-leave, and for that purpose he wanted his service-book to be completed. But, in his statement, he has stated that he did not proceed on privilege-leave, in the month of December, 1973. In the year 1974 also, he did not avail this leave. So, this all is a concocted story that Labh Chand wanted to avail privilege-leave, and for that purpose, his service-book was to be completed. It could be possible that the service-book of Labh Chand was incomplete, and that must have come back to office of the CM and HO, but absolutely, there is no evidence or proof that the accused had demanded any bribe for completing the service-book, from Labh Chand. The circumstances in which, the file was recovered from the office-room of the appellant, creates doubt, and in view of the established enmity between Akhilanand PW 5, the establishment-clerk and accused-appellant, the Office-Superintendent, it is indicated that the whole matter has been manipulated. Akhilanand PW 5 was the establishment-clerk. He used to deal with the files and then submit them before the Office-Superintendent. Akhilanand has not stated that after the file of Labh Chand was received back, he had put it before the Office-Superintendent. Instead of the file being submitted before the Office-Superintendent, it was found in his room lying under so many files, on the top of a wooden almirah. So, it is clear that the file was planted there by some one, with some ulterior motive, and recovery there of was made in presence of Akhilanand PW 5, the establishment-clerk.
17. The evidence regarding how the trap was laid, has been brought to my notice which shows that Akhilanand PW 5 was very much interested in the trap Labh Chand PW 2 has stated that on 18th December, 1973, he submitted the report Ex. P. 2 before the ASP, ACD, at his residence, at 8 a.m. Mohanlal Bhardwaj was with him, at that time. The ASP asked Mohan Singh, SI, to bring one witness, and the SI brought Akhilanand Bohra. Then, he narrated the scheme to him.
18. Mohanlal Bhardwaj PW 4 has stated that Labhchand had come to his house on 18th December, 1973, and told him that Raghunandan Lal had demanded Rs. 50/- from him as bribe, but, he wanted to entrap him. Then he himself and Labh Chand went to the ASP, ACD, at his residence. Akhilanand was also with them; and there, the written report Ex, P. 2 was lodged at about 9.15 a.m. and then, he called witnesses, Mohan Lal Bhardwaj and Akhilanand. Witness Akhilanand was called through Mohan Singh, SI. He was not knowing that Akhilanand was working in the same office in which, the accused was working, So, there is difference in the statements of all these three witnesses, with regard to calling the witnesses. This difference is a very material one, which shows that G.P. Nag PW 6, the ASP was knowing the fact that PW 5 Akhilanand was establishment-clerk in the same office where the accused was working, but, he tried to hide this fact. If the witnesses, Mohan Lal Bhardwaj and Akhilanand were called by the ASP, Govind Prasad they were called through Mohan Singh, SI. Mohan Singh, SI has not been examined by the prosecution. He was a very important witness. It, therefore, shows that from the very beginning, the case was falsely cooked up, with the help of Akhilanand.
19. In the report Ex. P. 2, a number of currency notes have been mentioned; and in the memo Ex. P. 3, it has been mentioned as to what step, Labh Chand had to take after handing over the currency-notes to the accused appellant. In the memo Ex. P. 3, it is mentioned that after handing over the amount, he was directed to give signal by lighting a cigarette, and the witnesses were also directed to watch the handing over of the amount, and on receiving signal, to inform the ASP. In this respect, Labh Chand PW 2 has Stated that he was directed to hand over the notes to the accused. But, he has not stated about the signal which he was directed to give. He has stated that he had asked the accused to send the file, who then demanded Rs. 50/-. He then gave the money to him, immediately came out of the room; and then, he gave the signal by lighting a cigarette. It means, after handing over the money, Labh Chand had come out of the room, and then gave signal. And, upon receiving his signal, the trap-party entered the office-room of the appellant; and at that time, the accused-appellant was coming out of the room. The accused was then caught hold of by Mohan Singh, SI, who was having the currency-notes in his right hand.
20. Mohan Lal Bhardwaj PW 4 has stated that Labhchand had gone to the room of the Office-Superintendent, where, there was a ‘Chik’ on the door. They were standing at the Verandah. Labhchand then came out of the room of the accused, and after some time, he gave signal by moving his neck. The accused, after some time came out of his room, and the ASP who was sitting in the Verandah along with others, caught the accused. The ASP caught him by his hand, and disclosed his identity.
21. Akhilanand PW 5 has stated that the SI had come to him and asked him as to whether he was willing to become a witness in a trap, where to, he agreed. He was then taken to the house of the ASP, ACD. He has further stated that the witnesses were standing outside the office-room of the accused: Labhchand entered into the room; came out of the room after some time; and then, he gave signal to the police-party. He has not stated, what signal Labhchand had given. According to his statement, when after some time, the accused came out of his room for going to the room of the CM and HO, Mohan Singh, SI, caught him by his hand; identity was disclosed; and the amount was recovered.
22. G.P. Nag PW 6 has stated that Labhchand, after handing over the money, came out of the room; and gave a signal by lighting a match-stick, whereupon, he himself along with Mohan Singh and the witnesses, went inside the room of the accused, and there, he disclosed his identity, and challenged him that he had received Rs. 50/- bribe; and then, the money was recovered. So, what I find is that there is vast difference in the vast difference in the statements of the prosecution witnesses with regard to giving signal, calling the witnesses; watch the trap; and recovery of the notes, and the place from where they were recovered. This difference creates doubt.
23. This is very important aspect that when the amount was recovered, the accused stated that he had not taken any bribe, but, Labhchand had returned Rs. 50/- against the loan which was due from him. In this respect, the statements of the witnesses were perused. Labhchand PW 2 has denied in his statement that on or about 15th August, 1973, he had taken Rs. 80/- as loan from the accused. He has also denied that he had returned Rs. 30/- earlier, to the accused. He has also denied that the accused did not tell the ASP, ACD that he had taken loan of Rs. 80/- from the accused and that he had returned Rs. 30/- only earlier, and that the remaining amount of Rs. 50/- was returned on that date. In his police-statement Ex. D. 1, he has admitted that he had taken Rs. 80/- from the accused as loan, and that earlier, he had returned Rs. 30/- and the rest amount of Rs. 50/-, he returned him on that date. In court, he denied to have given the police statement. This shows that Labhchand PW 2 was not speaking truthfully.
24. Mohan Lal Bhardwaj PW 4 has stated that Raghunandan Lal had told the ASP that he had not taken bribe, but Labhchand had returned the money which he had taken from him; and he took out the money from his pocket and handed it over to the ASP. This witness has further stated that when the accused was taken to office of the ASP, he gave explanation that Labhchand had returned the money which was given by him earlier as loan.
25. Akhilanand PW 5 has stated that when the ASP disclosed his identity and challenged the accused that he had taken a bribe of Rs. 50/-, the accused handed over Rs. 50,/- to him, and told that Labhchand had taken money from him as loan, which he had returned to him. In his cross-examination, he has further said that the accused had told the ASP that he (Labhchand) had taken Rs. 80/- on loan, out of which, Rs. 30/- had been returned to him earlier, and the remaining Rs. 50/- were returned to him on that day.
26. Similarly, G.P. Nag PW 6, in his cross-examination, had said that the accused, at the time of the trap, had told him that Labhchand had taken Rs. 80/- from him as loan, and that Rs. 30/- had been given back to him earlier, and the remaining Rs. 50/- were paid baid back on that day. So, the accused had given explanation for receiving the amount of Rs. 50/-, that very moment.
27. It was argued by the learned Counsel for the appellant in the cases under the Prevention of Corruption Act, the presumption under Section 4 is that money recovered was an amount of illegal gratification. So, in view of the provision of Section 4 of the P.C. Act, a presumption could be drawn against the accused-appellant, but that presumption could be rebutted if the accused submitted explanation which was sufficient to rebut that presumption. The accused need not prove his defence by that standard of proof which is needed by the prosecution to prove its case. If the accused gives a probable explanation, that, the presumption under Section 4, stands rebutted. In support, the learned Counsel for the appellant relied on the case of Man Singh v. Delhi Administration . In that case, it was observed that it was sufficient if the accused offered sufficient explanation, and that standard of proof was not needed. In that case also, Rs. 5/- was recovered from the appellant and it was said to have been received from the complainant as bribe. The recovery of the money was established. The defence was that the amount was received from the complainant on account of balance of Rs. 10/-, which had been paid to the complainant for the fruit-juice supplied to the appellant, which cost Re. 1/- only. The appellant had received back Rs. 4/-; and Rs. 5/-remained to be paid by the complainant, who promised to pay at some other time. Both the courts below, in that case, did not believe the defence. After dealing with the evidence, it was observed by their Lordships of the Supreme Court that there were intrinsic circumstances in the case, which fully probabilised the defence of the appellant, and showed that the explanation given by him, was reasonable. It was also observed that it is well-settled that in such case, the accused is not required to prove his defence by the strict standard of proof of reasonable doubt, but, it is sufficient if he offers an explanation or defence which is probable, and once this is done the presumption under Section 4 stands rebutted.
28. In the instant case, the defence of the accused was that Labh Chand had taken Rs. 80/- from him as loan, out of which, he had returned Rs. 30/- earlier, and on 18th December, 1973, he returned the rest amount of Rs. 50/-. This explanation was given by the accused when he was entrapped which has also been admitted by the ASP, ACD and the other prosecution witnesses. This explanation was a probable one. The accused need not prove his defence by strict standard of proof. He, thus, had rebutted the presumption of Section 4 of the PC Act. Therefore, on this ground, the appeal has to be accepted.
29. Tejsingh v. State of Rajasthan 1979 RLW 37, it has been observed as under:
…the accused can rebut it by showing that there is a plausible explanation and on basis of preponderance of probability of other theory, the accused is not required to rebut this presumption by leading evidence beyond reasonable doubt. But, all that he is required to show is to establish preponderance of probability in his favour.
30. In the case of Vijaydan v. The State of Rajasthan 1984 RCC 316 it was observed as under:
As a result of the law laid down by the Supreme Court and this Court, the position boils down to this that Section 4(1) of the Act introduces an exception to the general rule as to burden of proof in criminal case and shifts the case on the accused who has to prove that it was not as a motive or reward that the gratification was received by him. If it is shown that the accused had received the tainted gratification, the prosecution is relieved of the burden to prove the incriminating character of the gratification that it was as a motive or reward such as, is mentioned in Section 161. IPC. The presumption would be that it was paid as a motive or reward. It is then for the accused to rebut this statutory presumption. He can discharge this burden in various ways, i.e., by leading evidence in defence or by pointing out material in the prosecution evidence itself as a result of cross-examination or otherwise and so on and so forth. He is not required to prove his defence to the hilt. The standard of evidence required to rebut the presumption arising under Section 4(1), is not to be equated with the standard of evidence required to prove the charge. The presumption would stand rebutted if the accused shows a preponderance of probabilities in his favour.
31. It was next argued by the learned Counsel for the appellant that the sanction accorded by the DM and HS, for the prosecution, was not a valid sanction. In this respect, the statement of Pitambar Dayal Mathur, was brought to my notice. This witness has stated that the ASP himself had come to him, with record, and that, if the ASP had brought to his notice that the complainant had returned the amount to the accused, which he had taken on loan from him, then, certainly, he would not have given the sanction. The sanction-proforma was not dictated by him. Before issuance of sanction, the CM and HO, Kota, after making inquiry, had sent the file to him. This shows that the DM and HS, who had accorded the sanction, had not applied his mind before giving the sanction; nor were all the facts brought to his notice; and according to his own statement, had all the facts been brought to his notice, be would not have accorded the sanction. This also indicates that the sanction was obtained from him by misrepresenting the facts or by not bringing the entire facts, to his knowledge. Therefore, such a sanction was a defective one, and the prosecution on this defective sanction, is bad.
32. Mohan Singh, SI and Amarsingh were police officials. They both were present from the time when the trap was arranged for, uptill when the accused was caught. So, both these witnesses were very material witnesses but, strange enough that they were not produced by the prosecution, as witnesses, for the reasons best known to the prosecution itself. But, their non-production gives an adverse inference, which creates further doubt in the whole prosecution case, the benefit where of has to be given to the accused-appellant.
33. In view of my above observations, I find that the prosecution has not been able to establish its case beyond reasonable doubt. The explanation given by the accused, at the time of his being entrapped, was a probable one. Therefore, the conviction and the sentence passed by the trial court cannot be sustained.
34. In the result, the appeal is accepted. The accused-appellant having not been found guilty either of offences under Section 161, IPC, or under Section 5(d)(1) and (2) of the Prevention of Corruption Act, is hereby acquitted of the said charges. He is on bail. He need not surrender to his bail-bonds, which are discharged.