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Rameshwar Prasad Trivedi Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtRajasthan High Court
Decided On
Judge
Reported in1979CriLJ484; 1978(11)WLN568
AppellantRameshwar Prasad Trivedi
RespondentState of Rajasthan
Cases ReferredSupreme Court In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat
Excerpt:
criminal trial - witnesses--two witnesses describing same thing in different words--their testimony not to be rejected when difference is not material.;jwala prasad had testified in the trial that kamaldas paid the amount to the appellant using the words 'yea apke rupaye laotaye deta hun'. manohar singh testified in the trial that one of the two lawyers, who entered the chamber together, gave a wad of currency notes to the appellant staling that 'jo rupaye main apse udhar le gaya tha vch main apko wapis laqtaye deta hun'. there is hardly say material difference in these two acts of words used by two different persons to describe one and the same thing it will be a wholly captious approach to the problem to reject the testimony of these two witnesses on the ground that they were not tble.....k.s. sidhu, j.1. the appellant, rameshwar prasad trivedi, has been convicted by the learned special judge, jaipur, under section 161 of the i. p. c. and under section 6(1)(d) read with section 5 (2) of the prevention of corruption act, 1947, and sentenced to rigorous imprisonment for one year and a fine of rs. 200/- or, in default, further simple imprisonment for one month separately under each count. the two sentences were ordered to run concurrently.2. the case of the prosecution, which resulted in the conviction and sentence of the appellant, as aforementioned, is that on nov. 5, 1973, while the appellant was posted as sub-divisional magistrate-cum-revenue court, gangapur city, he accepted payment of rs. 500/- as illegal gratification for his promise to show favour to a party in two.....
Judgment:

K.S. Sidhu, J.

1. The appellant, Rameshwar Prasad Trivedi, has been convicted by the learned Special Judge, Jaipur, under Section 161 of the I. P. C. and Under Section 6(1)(d) read with Section 5 (2) of the Prevention of Corruption Act, 1947, and sentenced to rigorous Imprisonment for one year and a fine of Rs. 200/- or, In default, further simple imprisonment for one month separately under each count. The two sentences were ordered to run concurrently.

2. The case of the prosecution, which resulted in the conviction and sentence of the appellant, as aforementioned, is that on Nov. 5, 1973, while the appellant was posted as Sub-Divisional Magistrate-cum-Revenue Court, Gangapur City, he accepted payment of Rs. 500/- as illegal gratification for his promise to show favour to a party in two revenue suits pending in his court that day.

3. It is alleged that Ram Singh, P. W. 2, a resident of village Keshgarh, tehsil Nandoti, district Sawai Madhopur, was involved as a party to two cross cases under Section 107, Cr. P.C pending in the court of the appellant as a Sub-Divisional Magistrate at Gangapur City, district Sawai Madhopur, in Oct. 1973. Kamaldas Advocate, P. W. 3, had been retained as a counsel by Ram Singh In that litigation. The dispute, which gave rise to the said security proceedings between Ram Singh and his supporters on one side and one Jag-dish Gujar and his supporters on the other, was over possession of certain agricultural lands. Jagdish Gujar had filed a revenue suit against Ram Singh and Ors. for perpetual injunction restraining the defendants from interfering with his possession of the said land. A similar suit had been filed bv Hari-charan, a supporter of Jagdish Gujar, against Ram Singh and Ors. for restraining them from interfering with the plaintiff's possession of the land in that suit. The plaintiffs in these suits had obtained ad interim temporary injunctions against the defendants. These two suits were also pending, at the relevant time, in the court of the appellant as a revenue court in Gangapur City. Kamaldas, Advocate, was counsel for the defendants in these two suits as well.

4. The prosecution further alleges that all the four cases mentioned above were set down for hearing before the appellant on Oct. 30, 1973. The story goes that on Oct. 29, 1973, Ram Singh met the appellant at his residence and requested him for an order directing Jagdish Gujar and his supporters to give security for keeping the peace, stating unctously that the long drawn dispute had already ruined him. The appellant demanded Rs. 2,000/- as bribe for doing the needful. Ram Singh agreed to pay the amount later. He. thereafter, went to his lawyer, Kamaldas, and mentioned to him about the demand by the appellant of Rs. 2,000/-, as bribe. Kamaldas advised against giving the bribe stating that Ram Singh had a good case and he would win it any way. Ram Singh, therefore, did not pay any bribe to the appellant on or before Oct. 30, 1973. The appellant announced his orders in the two cases under Section 107, Cr.P.C. on Oct. 30, 1973. While he dismissed Ram Singh's complaint against Jagdish Gujar and his supporters, the appellant passed an order under Section 117(3), Cr.P.C. directing Ram Singh and his supporters to furnish security for keeping the peace during the pendency of the security proceedings against them. The two revenue suits were adjourned by the appellant to Nov. 5, 1973, to consider the question whether the ad interim temporary injunction be continued or not.

5. The prosecution story further goes that after the adverse decision in the two cases for security proceedings had been announced by the appellant against Ram Singh on Oct. 30, 1973, Ram Singh again went to the residence of the appellant on Nov. 2, 1973, at about 8 or 9 a. m. He remonstrated with the appellant, about the adverse decision against him in those cases and solicited his favour in the revenue suits aforementioned, which had been fixed for hearing on Nov. 5, 1973. It is alleged that the appellant demanded a sum of Rs. 1,000/- as bribe for deciding those suits in favour of Ram Singh and that Ram Singh agreed to pay Rs. 500/- only. The appellant is said to have accepted Ram Singh's offer and advised him that the amount of Rs. 500/-be paid to him through his lawyer, namely, Kamaldas, Advocate, in his chamber on Nov. 5, 1973, morning. Ram Singh went back to his lawyer and told him that he did not want to pay the bribe and instead wanted a trap to be arranged so that the appellant could be caught and punished for the crime. Kamaldas agreed to help him in the matter.

6. On Nov. 3, 1973, Kamaldas, Advocate, and Ram Singh came to Jaipur and contacted Khem Chand Tejwani Additional Superintendent of Police, telling him about the demand of bribe by the appellant. Tejwani recorded the information and told them that he would be meeting with them at a distance of one mile from Gangapur City on the Jaipur-Gangapur City road, on Nov. 5, 1973, at about 9 a. m. to prepare the necessary trap. As arranged, Kamaldas and Ram Singh met Tejwani at a distance of about a mile from Gangapur City, on Nov. 5, 1973 at 9.35 a. m. Constables Hari Singh and Prabhu Dayal, had accompanied Tejwani from Jaipur to Gangapur City. Ram Singh gave 4 hundred rupee notes, 1 twenty rupee note and 8 ten rupee notes to Tejwani for treating them with phenolphthalein powder and noted down their numbers. After doing the needful, Tejwani returned these notes to Kamaldas so that he could pass them on to the appellant in his chamber later that morning. It is alleged that Kamaldas contacted the appellant in his chamber at about 10.30 a. m. and gave all the 13 currency notes to him. The appellant received the notes in his own hands and pocketed them. Kamaldas thereafter went out of the chamber and gave the pre-arranged signal to Tejwani and party. Tejwani then rushed to the chamber of the appellant, disclosed his identity to him and asked him to surrender the currency notes, which he had accepted as bribe from Kamaldas. The appellant admitted the receipt of the money, but pleaded that Kamaldas had paid to him that money by way of repayment of a loan which he had advanced to him a few days earlier. Tejwani's version is that before he entered the chamber of the appellant for recovery of the aforementioned currency notes, D. We; Jwala Prasad, Tehsildar, Gangapur City, and Mano-har Singh Chief Ticket Inspector, Western Railway, Kota, were already present there in the chamber and sitting in two chairs across the table of the appellant. The currency notes were recovered by Tejwani from the appellant in the presence of, among others, Jwala Prasad and Manohar Singh, aforementioned.

7. During the trial, the prosecution examined, among others, P. Ws. Hari Singh, Ram Singh, Kamaldas, Prabhu Dayal and Khem Chand Tejwani, as witnesses in support of its case.

8. In his statement under Section 313, Criminal P. C, the appellant denied that he had received any illegal gratification from Kamaldas. He, however, admitted that he had received from him a sum of Rs. 500/- in his chamber on Nov. 5, 1973. He pleaded that Kamaldas had paid the amount to him by way of repayment of his loan. He added in this context that Bhagchand, Advocate, was present both at the time when the loan was advanced by him to Kamaldas as well as at the time when Kamaldas repaid the said loan on Nov. 5, 1973, morning.

9. The appellant also came on the stand as his own witness and subjected himself to lengthy cross-examination by the Public Prosecutor. He examined Tehsildar Jwala Prasad and Chief Ticket Inspector Manohar Singh, as witnesses in support of his plea in defence.

10. It may be mentioned here that the appellant had mentioned the name of Bhagchand Advocate, to Tejwani at the earliest available opportunity. While admitting the receipt of Rs. 500/- from Kamaldas, the appellant told Tejwani that Kamaldas had paid the amount to him in the presence of, among others, Bhagchand Advocate, who, according to him, had accompanied Kamaldas into his chamber at that time. Tejwani therefore, recorded the statement of Bhagchand Advocate, under Section 161, Cr.P.C. He was, however, not cited as a witness for the prosecution. The appellant applied for and obtained summons for his production as a defence witness. He, however, did not enter appearance in spite of service. The trial court then issued warrants to procure the attendance of this witness. The police returned the warrant of the court unexecuted with a report that the witness had gone out of station. It was under these circumstances that the appellant gave up his efforts to procure the appearance of Bhagchand and concluded his evidence without being able to examine Bhagchand as a defence witness.

11. As already stated, the appellant did not deny the allegations that he had received Rs. 500/- from Kamaldas on Nov. 5, 1973. He, however, pleaded that the payment had been received by him by way of repayment of loan which Kamaldas had been owing to him since Nov. 1, 1973, and that the allegation that he received the money for showing favour to Ram Singh P. W. in two revenue suits, Is false.

12. The only point for determination before the learned trial Judge, therefore, was, and, for that matter, before this Court is, whether the appellant had accepted the payment of Rs. 500/- from Kamaldas, the decoy, as repayment of loan as pleaded by the appellant, or, as illegal gratification, as alleged by the prosecution, for showing favour to Ram Singh.

13. There are two rival versions competing for acceptance, one supporting the prosecution and the other supporting the defence.

14. The principal witness for the version of the prosecution is Kamaldas P. W. 3. He denies that he had borrowed Rs. 500/- from the appellant on Nov. 1, 1973. He has testified that the amount of Rs. 500/- was accepted by the appellant from him by way of illegal gratification. He denies that Tehsildar Jwala Prasad, Chief Ticket Inspector Manohar Singh and Bhagchand were present at the time when he paid the money to the appellant in his chamber on Nov. 5, 1973, at about 10.30 a. m. He would, on the other hand, have us believe that the appellant was all alone in his chamber at that time. He, however, admits that Jwala Prasad and Manohar Singh, aforementioned, were present in the chamber of the appellant a little later when he returned to the chamber with Tejwani and Ors. to witness the recovery of the money from the appellant. He also admits that the appellant had told Tejwani on the latter's enquiry about the receipt of the money by the appellant that he had received it and that it had been paid by Kamaldas by way of repayment of the loan which he had advanced to Kamaldas 4 or 5 days earlier.

15. Tejwani P. W. 10 also admits that when on receipt of the pre-arranged Signal from Kamaldas regarding the payment of Rs. 500/- by Kamaldas to the appellant, he entered the chamber of the appellant, both Jwala Prasad as well as Manohar Singh were already present there, and that it was in their presence that the appellant tried to explain that he had received the amount by way of repayment of loan.

16. P. Ws. Hari Singh and Prabhu Dayal, the police officials, who were members of the raid party headed by Tejwani, deposed that they were present in the Verandah of the chamber and that they peeped through the curtain hanging on the doors of the chamber opening into the verandah and saw that none else except the appellant was present in the 'Kamber at the time when Kamaldas entered it. Prabhu Dayal, however, added that after Kamaldas had come out of the chamber and given the signal to Tej-wani and party, two persons (i. e. Jwala Prasad and Manohar Singh) emerged from the staff room into the verandah and then entered the chamber of the appellant.

17. P. W. Ram Singh testified that he too peeped through the curtain and saw that when Kamaldas passed the money to the appellant in the chamber, none else, except the appellant and Kamaldas, was present in the chamber.

18. The defence version, on the other hand, is that Kamaldas entered the chamber accompanied by Bhagchand and that Jwala Prasad and Manohar Singh were already present there in the chamber before Kamaldas and Bhagchand entered it. The evidence in support of this version consists of the depositions of Jwala Prasad, Manohar Singh and the appellant himself. As already stated, the appellant could not procure the appearance of Bhagchand as defence witness in spite of the efforts made by him in that behalf. So far as the prosecution is concerned, it did not cite Bhagchand as a witness in spite of the fact that his statement had been recorded by the investigating officer under Section 161, Cr.P.C.

19. Jwala Prasad D. W. 2, who was posted as Tehsildar, Gangapur City, at the relevant time, testified that on being called by the appellant on Nov. 5, 1973, he went to the appellant's chamber accompanied by Chief Ticket Inspector Manohar Singh at about 10.30 in the morning. He explained that Chief Ticket Inspector Manohar Singh, to whom some agricultural land had been allotted by the State on account of his being an ex- army personnel, was with him that morning in connection with the proceedings of mutation of that land. He recalled that while he and Mahohar Singh were sitting in the chamber of the appellant, two lawyers, namely, Kamaldas and Bhagchand entered the chamber and that Kamaldas gave the appellant Rupees 500/- in their presence stating that he was returning his money (Yeh apke rupaye laotaye deta hun). Jwala Prasad further stated that the appellant accepted the money with thanks and that thereafter both Kamaldas and Bhagchand left the chamber. He further recalled that Tejwani entered the chamber after a short while and enquired of the appellant if he had accepted a sum of Rs. 500/-from Kamaldas as bribe. The appellant, according to Jwala Prasad, immediately replied that he had received a sum of Rs. 500/- from Kamaldas, but the same was not by way of bribe, but as repayment of loan.

20. D. W. Manohar Singh deposed that he was posted as Chief Ticket Inspector at Kota at the relevant time and that he went to Gangapur on Nov. 5, 1973 in connection with the mutation proceedings of the land allotted to him as an ex-army personnel. He further stated that he accompanied Tehsildar Jwala Prasad to the chamber of the appellant that morning and that while they were sitting there and talking to the appellant, two lawyers in robes entered the chamber. He further recalled that one of the two advocates, who was shorter in stature, gave a wad of currency notes to the appellant stating that he was repaying the money which he had borrowed from the appellant earlier.

21. The appellant himself appeared as D. W. 5 and testified that Kamaldas had borrowed a sum of Rs. 500/- from him, in the presence of Bhagchand, 4 and 5 days before the occurrence and that he came to his chamber accompanied by Bhagchand on Nov. 5, 1973 morning and returned the money to him. He further stated that D. Ws. Jwala Prasad and Manohar Singh were present with him in his chamber at the time Kamaldas repaid the loan.

22. The learned trial Judge has preferred the prosecution version and rejected the testimony of D. Ws. Jwala Prasad, Manohar Singh and the appellant as discrepant and unreliable. In rejecting the testimony of D. Ws., Jwala Prasad and Manohar Singh, he appears to have been influenced mainly by the so called discrepancies in their statements as to the exact words alleged to have been used by Kamaldas, while paying the amount of Rs. 500/- to the appellant in his chamber. It will be recalled that Jwala Prasad had testified in the trial that Kamaldas paid the amount to the appellant using the words 'Yeh apke rupaye laotaye deta hun'. Manohar Singh testified in the trial that one of the two lawyers, who entered the chamber together, gave a wad of currency notes to the appellant stating that 'jo rupaye main apse udhar le gaya tha voh main apko wapis laotaye deta hun'. There is hardly any material difference in these two sets of words used by two different persons to describe one and the same thing. It will be a wholly captious approach to the problem to reject the testimony of these two witnesses on the ground that they were not able to reproduce the language used by Kamaldas in identical terms.

23. The learned trial Judge also took note of the fact that both Jwala Prasad and Manohar Singh had signed the recovery-cum-arrest memo Ex. P-2 without demur in spite of the fact that in the recitals contained therein, it is specifically mentioned that both of them had told the investigating officer that they had arrived in the chamber after Kamaldas had already paid the money to the appellant. The law is well settled that an attesting witness of a document cannot, by that token alone, be held to have accepted the correctness of the recitals contained in the document. All that he attests is that the document was prepared by its author in his presence. To say the least, it was not fair on the part of the investigating officer to insert in the recovery-cum-arrest memo extraneous matters like statements of witnesses alleged to have been made to him during the investigation.

24. D. Ws. Jwala Prasad and Manohar Singh should not, therefore, be disbelieved merely because they appended their signatures to the recovery-cum-arrest memo Ex. P-2 without any objection. They were not supposed to go through the contents of this lengthy document running into 14 pages. They signed this document as attesting witnesses because the investigating officer had prepared it in their presence. No more significance need, therefore, be attached to this document than would be attached to an ordinary arrest or recovery memo.

25. The learned trial Judge thinks that the story that Kamaldas had borrowed Rs. 500/- from the appellant, four and five days before the occurrence, is improbable. I am inclined to agree that in the common course of relations between a judicial officer and a lawyer practising in his court, it is very seldom, if at all, that the lawyer would approach the judicial officer for a loan. But one must not altogether ignore that in this complex world, a situation may arise in which a lawyer may have to ask for a temporary loan from a Judicial Officer. It is an admitted fact that besides the ordinary relation of a lawyer and a presiding officer, Kamaldas and the appellant were also associated with each other as a Legal Adviser and Secretary, respectively, of the Urban Improvement Trust, Gangapur City. In any case, one would not be justified in rejecting out of hand the sworn testimony of two respectable and responsible witnesses like Tehsildar Jwala Prasad and Chief Ticket Inspector Manohar Singh merely because in the version, to which they have testified, has entered an element which sounds somewhat improbable.

26. Reference is then made by the learned trial Judge to the circumstance that had the appellant obliged Kamaldas P. W. by advancing a loan of Rs. 500/-to him, Kamaldas would not be that ungrateful so as to exploit that transaction and turn it into a trap at the time of repaying that loan. It is true that, normally, one would not like to hurt one's benefactor, but then it depends upon man to man and the circumstances and the situation obtaining at the relevant time. There is evidence on the record that Kamaldas is not merely a lawyer by profession, but something more. D. W. Paliwal has testified that Kamaldas is also the Mahant of a temple with lands attached to it and that Ram Singh P. W. had helped Kamaldas in winning the office of Mahant. For aught we know. Kamaldas, as a lawyer of Ram Singh and as a person who was beholden to Ram Singh for his office as Mahant of the temple, might have been impelled to do Ram Singh's bidding in this transaction.

27. The learned trial Judge does not seem to have scrutinized the statements of P. Ws., Ram Singh, Hari Singh and Prabhu Dayal, as closely as they ought to have been scrutinized. It will be seen that in the rough sketch plan of the scene of occurrence, which is embodied in the memo Ex. P-2, adverted to above P. W. Hari Singh is not shown to have been present anywhere near the chamber at the time of the occurrence. Hari Singh, however, insisted in his testimony that he was present in the Verandah of the chamber standing close to the door and peeping through it to see that none else was present in the chamber excepting the appellant and Kamaldas at the time when the latter paid the money to the former. This part of Hari Singh's testimony is difficult, if not impossible, to believe.

28. Ram Singh also claims that he was standing in the Verandah and peeping through the curtain into the chamber at the time when Kamaldas paid the money to the appellant. He stated that none else, except Kamaldas and the appellant, was present in the chamber at that time. Ram Singh's testimony in that behalf is rendered doubtful by what Tejwani has to say in Ex. P-2. Tejwani has mentioned in Ex. P-2 that Ram Singh was not present in the chamber at the time he arrested the appellant after his brief interrogation by him. If Ram Singh had been present in the Verandah at the time of the occurrence, as claimed by him, he would not have stayed behind at the time when Tejwani and Ors. entered the chamber and Tejwani was interrogating and arresting the appellant.

29. P. W. Prabhu Dayal deposed that he and Hari Singh had followed Kamaldas when he was going towards the appellant's chamber, and that when Kamaldas entered the chamber, they waited outside in the Verandah. He further stated that P.W. Ram Singh and his companion Ram Swaroop, a Gujar, were already present in the Verandah. According to him, all of them were still there when Kamaldas came out of the chamber after a short while and gave the signal to Tejwani and Ors. indicating that the money had already been paid. He further stated that after Kamaldas had come out of the chamber, two persons emerged from the staff room and entered the chamber through the said Verandah. He was clearly trying to suggest that D. W. Jwala Prasad and Manohar Singh had entered the chamber after Kamaldas had already come out of it. It is significant to note that none of the other two witnesses, namely, P. Ws., Ram Singh and Hari Singh, who were allegedly waiting in the verandah at that time, made any mention of Jwala Prasad and Manohar Singh entering the chamber in their presence. This circumstance would indicate that Jwala Prasad and Manohar Singh were already in the chamber before these witnesses had stationed themselves, as claimed by them, in the Verandah.

30. Learned Public Prosecutor contended that if none of the two rival versions is proprio vigore conclusive, the court, as required by Section 4 of the Prevention of Corruption Act, 1947, shall presume, unless the contrary is proved, that the appellant received the money as illegal gratification. It is true that in view of the provisions of Section 4 of the Prevention of Corruption Act, the court shall presume the absence of circumstances bringing the payment received by the accused within the category of innocent receipt and that, therefore, it is for the accused to prove that Kamaldas had borrowed Rs. 500/- from him on Nov. 1, 1973 and that he had paid Rs. 500/- to him on Nov. 5, 1973 by way of repayment of that loan. But at the same time, one must not ignore the fact that the burden of proof lying on the accused is not so heavy in the sense as to require him to prove his defence conclusively. In V. D. Jhingan v. State of Uttar Pradesh : [1966]3SCR736 , the Supreme Court made it clear that the burden of proof lying upon the accused under Section 4 (1) of the Prevention of Corruption Act will be satisfied if he establishes his case by a preponderance of probabilities as is done by a party in civil proceedings. Their Lordships added that it is not necessary that he should establish his case by the test of proof beyond reasonable doubt.

31. The law was similarly interpreted by their Lordships of the Supreme Court In Dahyabhai Chhaganbhai Thakkar v. State of Gujarat : 1964CriLJ472 , in the context of plea of insanity under Section 84 of the I. P. C, which is analogous to the plea of innocent receipt raised in the context of Section 4(1) of the Prevention of Corruption Act. Their Lordships laid down the law as follows (at p. 477 of Cri LJ):

The doctrine of burden of proof in the context of the plea of insanity may be stated in the following propositions: (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mens rea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial; (2) There is a rebuttable presumption that the accused was not insane, when he committed the crime, in the sense laid down by Section 84 of the I. P. C.: the accused may rebut it by placing before the court all the relevant evidence oral, documentary of circumstantial, but the burden of proof upon him is no higher than that rests upon a party to civil proceedings; (3) Even if the accused was not able to establish conclusively that he was insane at the time he committed the offence, the evidence placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of the court as regards one or more of the ingredients of the offence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the ground that the general burden of proof resting on the prosecution was not discharged.

32. It may, therefore, be safely held that the burden of proof lying upon the accused to prove that Kamaldas had borrowed Rs. 500/- from him on Nov. 1, and repaid the same amount on Nov. 5t will be discharged if he establishes his case by a preponderance of probabilities as is done in a civil case. He is not required to prove his case conclusively and beyond reasonable doubt. Now in a civil case, the burden of proof, as a matter of adducing evidence, is always instable and may shift constantly throughout the trial according as one scale of evidence or the other preponderates. The accused, in the instant case, had himself appeared as a witness and produced two independent witnesses in an attempt to prove that while paying the money to him, Kamaldas had expressly stated that he was repaying the loan. All three of them further testified that Kamaldas was accompanied at that time by Bhagchand. In the circumstances, it was open to the prosecution to produce Bhagchand as a witness and rebut the evidence of the accused.

33. The learned Public Prosecutor, however, contended that since the appellant's case is that he had advanced a loan to Kamaldas in the presence of Bhagchand and that Kamaldas had repaid it in his presence, the onus lay on the appellant to produce Bhagchand as his witness. He referred in this connection to Illustration (g) of Section 114 of the Evidence Act, which lays down that the court may presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it. This argument, in so far as it goes, is, theoretically speaking, wholly unexceptionable. The difficulty, however, arises in its application and more so, in criminal cases. It is well settled that the rule embodied in Illustration (g) of Section 114 of the Evidence Act has to be applied with great caution in criminal cases. Such caution will inevitably lead one to consider the circumstances relating to the non-appearance of Bhagchand as a witness in this case. It will be recalled that the appellant had applied for and obtained summons for the appearance of Bhagchand as one of his witnesses in defence. Bhachand did not appear in spite of service. The appellant then requested the court to issue warrants to obtain his attendance. The court issued the warrants and directed it to the Additional Superintendent of Police, Anti-Corruption Department, Jaipur (i. e., the investigating officer in the instant case) for execution. The investigating officer returned the warrant to the court unexecuted with the report that Bhagchand had gone out of station. Under the circumstances, one would naturally be reluctant to hold that the appellant had withheld the evidence of Bhagchand, from the court.

34. Another circumstance, which must, in this connection, be borne in mind, is that the investigating officer had himself recorded the statement of Bhagchand during the investigation under Section 161, Cr.P.C. He had done so probably in view of the plea of the appellant raised at the first available opportunity that he had advanced the loan to Kamaldas in the presence of Bhagchand and that Kamaldas had repaid the amount in Bhagchand's presence. That being so, I should have thought that, technicalities apart, the prosecution, in all fairness would cite and produce Bhagchand as a witness for whatever his evidence was worth. In the circumstances of this case, the prosecution cannot wholly justify the non-production by it of Bhagchand as a witness for the prosecution on the theory that since his evidence related to a fact the burden of proof of which lay upon the appellant, it would, therefore, be for the appellant to produce as a defence witness.

35. For all these reasons, I am not prepared to draw any unfavourable inference against the accused by reason of the non-appearance of Bhagchand as a witness in defence. Helving on the evidence of D. Ws. Jwala Prasad and Manohar Singh and the deposition of the accused, I hold that the accused has discharged the burden of proof placed on him by a preponderance of probabilities. In balance, it would be more reasonable to hold that Kamaldas had raised a loan of Rs. 500/- from the appellant on Nov. 1, 1973 and repaid it on Nov. 5, 1973, expressly statins that the payment was being made by him as repayment of the said loan.

36. In this view of the matter, this appeal must be allowed and is hereby allowed. The conviction and sentence of the appellant are hereby set aside. Instead, he is acquitted. He is on bail. The bail bonds are discharged.


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