P.R. Sharma, J.
1. The appellant N.S. Gandiwal was convicted and sentenced by the Special Judge Gwalior under Section 161 of the Indian Penal Code to undergo rigorous imprisonment for one year. He has appealed to this Court against his conviction and sentence.
2. The facts giving rise to the prosecution case may briefly be stated as follows: One Bhag-wandas Khatri was living in house No. 730 known as 'Bachhes Latif's House' as a tenant of the Custodian of Evacuee Property on a rent of Rs. 4/- per mensem. It appears that he, in violation of the terms of the tenancy, sublet a portion of the premises occupied by him to certain other persons. A notice Ex.P. 19 was served on Bhagwandas by the Custodian Department requiring him to attend the Custodian's office on 8-8-1955. On that date the accused appellant put up a note Ex.P. 20 before the Assistant Custodian in which he expressed the opinion that he was not inclined to believe that the premises were worth only Rs. 4/- per mensem.
He, therefore, suggested that the persons occupying the premises should be required to execute separate rent notes, each promising to pay rent at the rate of Rs. 4/- per mensem. The Deputy Custodian ordered thereon that separate rentdeeds may be executed and that 'fair rent may be drawn'. About a week prior to the incident in question the accused along with certain police constables went to the house of Bhagwan das and called upon him to pay up the arrears of rent and to vacate the premises.
On a request being made by Bhagwandas for time being granted to him, the accused agreed to postpone action for about a week and the matter ended there at least for the time being. On 13-9-1955 Bhagwandas accompanied by Hukumchand went to the Custodian's office and offered to pay Rs, 24/- towards the arrears of rent till 31-8-1955. A receipt Ex.P. 13 was drawn up and signed by Puttusingh a clerk in the office.
3. The case for the prosecution is that! Bhagwandas had been told by a chaprasi in the Custodian's office named Pannalal that the accused expected to be paid a bribe of Rs. 50/-. Bhagwandas approached Hukumchand, the President of the Sharnarthi Association in order to consult him as to what he should do in the matter. Later on Pannalal's advice both Hukumchand and Bhagwandas paid a visit to the Custodian's office on 13-9-1955 in order to settle the matter.
After some initial bargaining between the parties, the accused, it is alleged agreed to accept a bribe of not less than Rs. 35/- on condition that the occupants of the premises should execute separate rent-notes, each agreeing to pay a rent of Rs. 1/- per mensem. On the morning of 14-9-1955 Bhagwandas presented an application Ex.P. 14 before the Anti-corruption Officer in wliich he complained that the accused was demanding a bribe of Rs. 35/- from him. A trap was laid by the Anti-corruption Officer. Seven five rupee notes, which were produced before the Anti-corruption Officer by Bhagwandas, were after their numbers had been noted down in the presence of Panchas, handed over to Bhagwandas for being paid to the accused.
4. The accused accompanied by P.W. 9 Bhonsley, a lower-division clerk in the office of the Custodian, Puttusingh another clerk in the same office and his chaprasi Pannalal went in a car to Bhagwandas's house. Hukumchand was also picked up from his own shop by the accused. On reaching Bhagwandas's house five rent-notes Ex.P. 1 by Shivdayal, P/3 by Nanakchand, P/5 by Dularam, P/15 by Bhagwandas and P/17 by Bodraj were executed.
A sum of Rs. 5/- was realised on the basis of these rent notes under receipts ExS P/1, P/4, P/6, P/17 and P/22... Bhagwandas then took the accused, the chaprasi Pannalal and Hukumchand to the first floor of his house for tea. Bhonsley was also called upstairs by the accused. The case for the prosecution is that in the nresence of all these persons Bhagwandas offered Rs. 25/- in currency notes to the accused. The accused protested that the amount was less than what had been agreed upon.
Hukumchand thereupon suggested that another five rupee note be given to the accused, which Bhagwandas did. The accused put the currency notes in his spectacles case. The anti-corruption officer was waiting outside Bhagwandas's house when the accused arrived there, and as soon as the accused emerged from the house, he was stopped by the Anti-corruption Officer and the six five rupee notes were recovered from his spectacles case in the presence of panch witnesses,
5. The accused was, on the facts stated above, prosecuted and tried for an offence Under Rule 161 I.P.C. with the result already noted above.
6. The accused in his statement Under Rule 342 Cri.P.C. admitted having gone to Bhagwandas's house about a week prior to the incident and to have called upon him to vacate the premises. He also admitted the fact that he paid a visit to Bhagwandas's house on the morning of 14-9 1955 and got separate rent-notes executed by the tenants. The facts that six five rupee notes and one one-rupee note (belonging to himself were recovered from his spectacles case was also not denied by him.
His plea, however, was that a sum of Rs. 5/-was paid to him by Bhagwandas in respect of the receipts passed in favour of the tenants named above, A further sum of Rs, 1/4/- was according to him, paid by Bhagwandas to him for the purpose of stamps to be affixed on the receipts. A sum of Rs. 24/- was, according to the accused, paid by Bhagwandas on 14-9-1955 to him as arrears of rent under receipt Ex.P. 13/-.
His version on this point is that though Bhagwandas had come to the office on 13-9-1955 and had offered to pay the arrears of rent forthwith he (the accused) insisted on separate rent notes from the occupants of the house being obtained before payment of the arrears of rent was accepted. The receipt Ex.P. 3/, though it was drawn up on 13-9-1955, was according to the accused, not handed over to Bhagwandas on that day. It was only after separate rent-notes had been executed on 14-9-1955 that the accused accepted payment of Rs. 24/- under that receipt and passed it on to Bhagwandas.
7. The accused examined five witnesses in his defence Of these D.W. 5 Puttusingh stated that Bhagwandas had come to the Custodian's office on 13-9-1955 and offered to pay a sum of Rs. 24/- towards the arrears of rent due from him Puttusingh thereupon prepared the receipt Ex.P. 13 and put his own signature thereon. Just at this time Baijnath chaprasi Came and told him not to receive payment of the money from Bhagwandas as a warrant had already been issued against him.
Puttusingh there upon went to the accused in order to inquire from him as to what he should do. He was told by the accused not to receive payment from Bhagwandas on that day, Puttusingh further went on to say that on the next day he accompanied the accused to Bhagwandas's house where he was required to draw up five receipts in the name of the various occupants of the house.
The accused thereafter took from the witness those receipts as also the receipt Ex.P. 13 and told him that he would go upstairs in order to inspect the site and would himself recover the money due under the said receipts, The accused thereafter went to the first floor of the house and on his return told Puttusingh that everything had been satisfactorily done.
8. The trial Court held this version of the accused to be false in view of the facts that Puttusingh under schedule Ex, D/l deposited Rs. 70/- on 15-9-1955, wherein it was shown that the sum of Rs, 24/- had been recovered on 13-9-1955 and that Puttusingh did not alter the date on Ex.P. 13 to the 14th of September, 1955. It; was also observed by the learned Special Judge that if the version given by the accused were true a sum of Rs. 30/4/- instead of Rs. 30/- ought to have been seized from his person.
Reliance was also placed by the learned Special Judge in convicting the accused on his conduct In going to the first floor of the house in order to receive payment of rent under receipts which had already been drawn up in the pohar of the house. This conduct of the accused, according to the learned Special Judge, was more in consonance with the prosecution story than his own version of the incident.
9. What has, therefore, to be determined in this case is whether on the basis of the evidence on record it can safely be held that the version of the accused cannot possibly be true. In this connection it would be pertinent to observe that even when the law places upon the accused the burden of proving his innocence, the burden on the defence is never so great as on the prosecution to prove its case beyond all reasonable doubt.
This principle is now almost uniforrnally accepted and it should not be necessary to cite authorities in support of it. The learned Special Judge himself has adverted to this principle in his judgment. It, however, appears that while discussing the probabilities of the case this principle was not clearly kept in view by the learned Special Judge.
10. I shall briefly refer to the circumstances which in my opinion ought to have weighed with the learned Special Judge in arriving at any conclusion in this matter. In the first place it is an extraordinary feature of this case that the accused takes with him two clerks and a chaprasi from his own office in order that they may remain present at the time of acceptance of illegal gratification by him.
It is the case for the prosecution itself than Shri Bhonsley, a clerk in the Custodian's office, was called by the accused himself to the first floor before the money was paid to him by Bhag-wandas. Hukumchand was actually picked up by the accused while he was on his way to Bhagawandas's house. One is led to think whether it would be natural for the accused to collect all this evidence against himself unless he was sure that Shri Bhonsley was as much interested in the acceptance of a bribe as he himself was.
Hukumchand on his own showing is a busy body. He accompanied Bhagwandas to the accused's office, tried to haggle with him for the amount of the bribe to be paid. The learned Special Judge ought to have taken into account the possibility of these two refugees having themselves laid a trap for the accused who had made things hot for Bhagwandas. I am constrained to observe that the learned Special Judge did not realise the significance of the trick attempted to be practised by Bhagwandas in making payment of the arrears of rent before separate rent-notes were executed by the persons to whom he had sublet the premises.
The acceptance of such rent would amount to waiver on the part of the department of the forfeture of case on account of violation of the terms of the tenancy by Bhagwandas in subletting the premises to a number of persons, The accused having prevented this design by insisting on execution of separate rent-notes prior to the acceptance of the arrears of rent was in my opinion doing an act which could not but have aroused the displeasure of Bhagwandas and his guide and friend Hukumchand. I find it difficult, in the circumstances of this case, to exclude the possibility of these two persons having contrived to keep the Anti-corruption officer in readiness to arrest the accused after he would emerge from Bhagwan das's house on 14-9-1955, on realising all the dues under Ex.P. 13 and the separate rent-notes.
11. The fact that the accused took Puttusingh along with him to the house of Bhagwandas on the morning of 14-9-1955 lends support to the version that the receipt Ex.P. 13 was not handed over to Bhagwandas on the day on which it was prepared and signed by Puttusing. The prosecution failed to examine Puttusingh as one of its witnesses. It contented itself by examining another clerk from the same office who deposed that the receipt had been handed over to Bhagwandas on 13-9-1955.
Had this been, true one would expect Bhagwandas to have referred to it in his application Ex.P. 14 dated 14-9-1955 to the Anti-Corruption Officer. The only fact referred to in that application by Bhagwandas is that the accused was demanding a bribe of Rs. 35/- from him. Is it conceivable that after accepting rent in the sum of Rs, 24/- from him and thus having waived the forfeiture of the lease, the accused would yet be in a position to realise froth Bhagwandas a bribe of Rs. 35/-? Surely enough Bhagwandas and Hukumchand are not so gullible as that. We have then to analyse the evidence led by the prosecution with regard to the events which took place at Bhagwandas's house on the morning of the 14th of September 1955.
12. The first point which arises for consideration in this connection is the place where the sum of Rs. 5/- was paid and to whom. It is sufficient to observe in this connection that the prosecution evidence on this point is both vague as well as discrepant in nature. Two of the executants of the rent-notes deposed that they paid the amount to the accused, while one of them deposed that he paid one rupee to Pannalal Chaprasi.
Puttisingh was not called upon to explain as to why he did not correct the date on Ex.P. 13 to the 14th when the money due under it was in fact realised on that day, nor was he asked to explain why in the schedule Ex.P. 1 he stated that the amount had been recovered on 13-9-1955. It is in the process of assessing the weight; to be attached to the probabilities of the case on either side that the principle referred to by me above has to be distinctly kept in view.
The fact that there are some circumstances which militate against the theory set up by the defence might be a good reason for holding that the version of the defence is not proved beyond all reasonable doubt. But that is not the test laid down by the Supreme Court in the matter. All that one has to see is whether on a consideration of the entire circumstances of the case there yet remains a reasonable probability of the version of the accused being true. If such is found to be the case there is no option but to acquit! the accused.
13. While, therefore, I am conscious of the! factors which are inconsistent with, the theory set up by the defence and to which the learned Special Judge seems to have given such undue importance, I am distinctly of the opinion tEat they are altogether insufficient for excluding the probability of the version of the accused being true.
14. In this view of the matter the appellant is entitled to an acquittal. His appeal is hereby allowed; the conviction and sentence passed against him by the trial Court are set aside and the is ordered to he acquitted. His bail-bonds are cancelled.