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Mahendra Singh Vs. State of Rajasthan - Court Judgment

LegalCrystal Citation
CourtRajasthan High Court
Decided On
Case NumberS.B. Criminal Appeal No. 297/1976
Reported in1982WLN151
AppellantMahendra Singh
RespondentState of Rajasthan
Cases ReferredBansilal Yadav v. State of Bihar
penal code - section 161 and prevention of corruption act section 5(1)(d) & (2)--burden of proof discharged by prosecution when accused admitted acceptance of amount-accused calls it repayment of loan-decoy's affidavit admits it as repayment of loan--held, prosecution has failed to prove offence beyond reasonable doubt;as the prosecution has been relieved of discharging the burden of proving the entire trap of payment because of admission of the accused, so also the defence version that rs. 300/- were received back on account of repayment of loan also finds initial mention tight at the commencement of the investigation, in the first important event of trap, namely preparation of the recovery memo.;the affidavit of labh singh has given a decisive death blow to the prosecution cases and.....g.m. lodha, j.1. mr. purohit was at his best as he usually is with the remarkable marshalling of facts and conspicous ability, lucidity and splendid feats of legal oratory. his only regret was that there was none to challenge him. a 'walk over' could never be relished by a 'gem' amongst advocates and is too dangerous for a just decision.2. this is an appeal is against the judgment of the special criminal case no. 40 of 1974 dated march 25, 1976 of the special judge for a.c.b. cases rajasthan jaipur, by which, appellant mahendra singh was convicted for an offence under section 161 ipc and section 5(2) read with section 5(1)(d) of the prevention of corruption act, 1947 and sentenced to undergo six months' simple imprisonment and a fine of rs. 1000/-, under section 161 ipc and two years'.....

G.M. Lodha, J.

1. Mr. Purohit was at his best as he usually is with the remarkable marshalling of facts and conspicous ability, lucidity and splendid feats of legal oratory. His only regret was that there was none to challenge him. A 'walk over' could never be relished by a 'gem' amongst Advocates and is too dangerous for a just decision.

2. This is an appeal is against the judgment of the Special Criminal case No. 40 of 1974 dated March 25, 1976 of the Special Judge for A.C.B. cases Rajasthan Jaipur, by which, appellant Mahendra Singh was convicted for an offence under Section 161 IPC and Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947 and sentenced to undergo six months' simple imprisonment and a fine of Rs. 1000/-, under Section 161 IPC and two years' simple imprisonment and a fine of Rs. 2,000/- for the offence under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act.

3 The prosecution case is that Mahendra Singh was an Audit Inspector, Co-operative Societies, Sangaria, District Ganganagarj, while he was working as an Audit Inspector of the Co-operative Societies, Sangaria, he approached Jagwant Singh sometime prior to the trap and got later's thumb impression on a piece of paper after writing something thereon, without disclosing to Jagwant Singh as to what that paper was on the pretext that if if Jagwant Singh needed cheap bricks and signed that paper, he would get him procured the bricks at a cheaper rate. Jagwant Singh, apprised his son of his putting the thumb impression on a piece of paper at the instance of the accused. His son Labh Singh immediately felt something had been done by the accused to cause them harm. He met the accused the next day and asked the latter what the real cause was for getting thumb impression of his father on a piece of paper. The accused told Labh Singh that the latter has stolen bricks of Sangaria Brick Co-operative Society and would lodge the report with the police to see him rounded up in that case. The accused told Labh Singh to pay Rs. 300/- and in that case the matter would be hushed up.

4. Labh Singh approached the the anticorruption department at Ganganagar and took Roop Singh with him. Report Ex.P/1 was lodged to the Additional Superintendent of Police on 21-10-1972. The Additional Superintendent of Police planned out a trap and with a view to get the accused arrested redhanded be rushed to Sangaria. He obtained GC notes worth Rs. 300/- from Labh Singh and dusted them with henopthalein powder after putting his initials thereon. Motbirs Rup Singh and Randhir Singh were present there at that time. The notes were handed over to the decoy for their onward transmission to the accused on demand. The party arranged a signal also. The tained notes were given to him for giving them to the accused. The motbirs were asked to serve as shadow witnesses and consequently the decoy and the motbirs were sent in advance to the accused.

5. As soon as notes were accepted by the accused, signal was given and the Additional Superintendent of Police rushed to the spot. The tainted GC notes were recovered by the Additional Superintendent of Police from the accused. The numbers were checked and tallied and thereafter hand wash of the accused was obtained The result was positive of phelolphathalenin by showing the change of colour into pink The said wash was preserved and seized in bottles Articles A and 5. Bush shirt of the accused Art 6 from which the tainted GC notes were recovered, was also taken into possession from the accused. The G.C. notes were marked as Article 1 to 3. Necessary memos were prepared at the spot in the presence of motbirs and papers Article 7 to 10 were also recovered from the accused by the Additional S.P. The accused was asked by the Additional Superintendent of Police to show how he obtained the notes. The accused said that he had loaned a sum of Rs. 300/- and that the tainted notes were paid to him by Labh Singh as repayment of that ban.

6. The prosecution case itself is that the dairy was also produced be the accused containing therein a note to the effect that a sum of Rs. 300/- had been advanced as loan to the decoy in the month of June, 1972. The Additional Superintendent of Police seized the diary also.

7. The case was registered against the accused by F.I.R. No. 22/1972. After investigation the challan was produced and before that sanction of the competent authority was obtained.

8. The charge was framed against the accused on 5-12-1974. The accused pleaded not guilty and claimed to be tried The prosecution examined evidence to substantiate the charge and then the accused examined himself and produced defence evidence also.

9. In the conclusion of the trial, after hearing the arguments the learned trial court found the accused guilty and convicted and sentenced him as mentioned above.

10. According to Mr. Purohit the prosecution has miserably failed to prove the guilt against the accused. Mr. Bhimraj has taken me through toe entire record of the case and has read out the statements of all the material witnesses of the prosecution as well as defence. He has challenged the various findings of the learned trial court and submitted that, the judgment of the trial court is bad in law as well as on facts. This case was initially argued by Mr. Bhimraj on December 22, 1981. Mr. S.B. Mathur, appeared for the State on that day and prayed for time to reply to the arguments of Mr. Bhimraj. The case was then take up on December 23, 1981 but Mr. Mathur again took time and therefore the case was kept for completion of arguments.

11. On January 11, 1982, the case was again taken up but it was adjourned and yesterday the arguments commenced. The arguments of Mr. Bhimraj were again heard today. No one appeared on behalf of the State in order to reply the arguments of Mr. Bhimraj. It is a matter of serious contern that serious case under the Prevention of Corruption Act are not attended by the Government Advocate Office. Even though arguments have continued in all for about three hours today, and many Dy. Government Advocates came in between in the Court court but surprisingly nobody has choosen to appear in this case and reply the submissions of Mr. Bhimraj.

12. In view of this unfortunate situation, I have got no escape but to decide the case exparte on the basis of submissions of Mr. Bhimraj and perused of the record of the case in the absence of the assistance of Government Advocate.

13. The prosecution has examined 8 witnesses in support of its case. Labh Singh (PW. 1) is the decoy. PW.4 Rup Singh and PW. 7, Randhir Singh are motbirs who were connected with the trap proceedings from time to time. PW.2 Jagwant Singh is the father of the decoy. PW.3 Ganpat and Brijlal PW. 5 are the Assistant Registrars of the Co-operative Societies who were examined to prove certain records of the co-operative department. P W.6 Arun Kumar is the sanctioning authority. PW.8 M.K. Pareek is the Additional Superintendent of Police who had got a dual role of lodging the police report and then becoming the Investigating Officer for his own trap.

14. The examination of the accused was conducted under Section 313/281 Cr.P.C. Important point involed in this case is whether the amount of Rs. 300/- was actually given to the accused as bribe. The accused has not denied the receipt of the money of Rs. 300/- from the decoy. In view of these facts, it would be unnecessary to discuss the entire evidence so far as the trap is concerned. The relevant features of this trap will now be discussed in order to adjudicate the guilt of the accused

15. The taking of GC notes Articles 1 to 3 having been accepted by the accused, the important feature of the case would be whether the accused took the amount as illegal gratification or on account of repayment of loan alleged to have been advanced by him, The accused had denied categorically that he ever accepted this amount as bribe and he has denied the entire prosecution case so far as the allegation of getting thumb impressions on blank papers and demanding the bribe is concerned.

16. The accused examined defence evidence which I would discuss at a later stage.

17. Mr. Bhimraj, learned Counsel for the accused-appellant unfolded the defence case which can be summed up as follows. There was Bhagatpur Co-operative Society. The accused who was an Auditing Inspector in the Co-operative Societies audited this society and found that brick-klin was not actually run by the society but was given on credit. A complaint was lodged by the accused Mahendra Singh and the co-operative society gave a notice of this complaint them. The notice was given to Ajmer Singh and Lal Singh Since they did not appear, the Collector took proceedings and issued amounts of Rs. 5000/- against them.

18. Aggrieved by this, Ajmer Singh and Labh Singh, approached Labh Singh who was none-else than their cousin brother. In Labh Singh they found their ambition of taking revenge successfully it would be interesting to note that brother Rup Singh, Laxman Singh, Labh Singh, Ajmer Singh and Danta Singh, all jointly with the instrumentality of Labh Singh, planned out the entire case. According in their plan they traped the Additional S.P. who fell in a trap of the trap. It would be latter on seen that these persons who were 5 brothers named above, remained activist not only in the trap, first to trap the Addl S.P. then to trap the accused, but later on continously remained present in the court during the prosecution.

19 In order to substantiate the above defence Mr. Bhimraj pointed out to me that relationship of these persons is not a matter of inference but it has been admitted by the prosecution evidence. Obviously decoy Labh Singh is the son of Jagwant Singh. According to the statement of PW.2 Laxman and Ajmer Singh admitted that Ajmer Singh was present in the court. P.W. 1 decoy admitted that Ajmer Singh was his cousin brother. He further admitted that Laxman was present in the court. P.W. 4 admitted that Labh Singh was his cousin brother. P.W.7 admitted that Laxman Singh brought a glass of water. P.W. 7 further admitted that he has been brought for giving evidence by Laxman Jagwant Singh and Labh Singh. All this would show that Mr. Bhimraj's theory of defence is not an imagination but is borne out from the admission, of the prosecution witness itself. So far the relationship of these persons is concerned, it will have to be held that they are intrawoven and decoy as well as all these witneses are interrelated one way or the other. They wanted to take revenge from the accused, who had made a complaint against them and got a warrant issued and proceedings of which resulted in the Collector's order for liquidation of this Bhagatpur Cooperative Society. These are all questions which will be answered after discussion of the entire case when it is possible to come to some positive conclusion at the end,

20. The important feature of the case is that acceptance of Rs.300/--by the accused having been admitted, what legal requirement remains for proving the guilt of the accused in a case under Section 161 I P.C. read with Section 5(2) read with 5(1)(d) of the Prevention of Corruption Act.

21. Mr. Purohit invited my attention to principles of law about burden of proof in Trap Cases, laid down by me in Tej Singh's case, which he termed as 'classicall', though accordingly to me they re lteriate the settled Jaw only and taken support from 'Dharamshastra' of India. In Tej Singh v. State of Rajasthan 1979 RLW 37,I had observed as under:

The burden of proving the prosecution case, generally lies on the prosecution even in case of trap of bribery, this burden is not . shifted by the enactment of Section 4 of the Prevention of Corruption Act. Section 4 has got limited application only for raising of presumption regarding the motive of the taking of money provided it is proved that the money was obtained or accepted by the accused, even in raising the presumption under Section 4, the acceptance or obtaining must be wilfull, voluntary and with conscious mind even where such a presumption is drawn, the accused can rebut it by showing that there is a plausible explanation and on the 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 is required to show is to establish preponderance of probability in his favour.

22. In paras Nos. 15, 16, and 17 I have further observed as under:

The above law in respect of the benefit of doubt, has not been enunciated for the first time by the English Judges and Jurists for our country. I have earlier also pointed out in 'Mana v. State while discussing the 'Right of private defence' that Manu, Brahaspati and Kautlya, had not only recognised it but put it on very high pedistal, then what English Law makes have put it Under Section 97 to 103 IPC. Though it is mainly the work of Research Scholars or Jurists, and hardly of Judges, to trace the origin but the trace of its origin to Ved, Purana, Sruti, Smaritis and Dharmsastra of our country reinforces our faith in this part of jurisprudence, making task of interpretation easy and interesting. Even several centuries before Christ, Dharmshastra laid down the same principles that benefit of doubt should always go to the accused. Hari Data's Co, on Apastamban-Dharm-sutra published by Halesyatha Sastri, contains the following Sanskrit verse.

cp n.M+ dk;ZrThe king should not punish when there is a doubt.

The famous author P.V. Kane has introduced the above principle of benefit of doubt, from the Dharmashastra in his Treaties 'history of Dharmashastra page 360 Vol. XII. Thus this principle of benefit of doubt was in vogue in early time but was published in the above Treaties of Dharamshastras before 300 to 66 B.C.

The principle was well known even in the legal procedure for doing justice in Kutilya era. Kutilya in chapter VIII of his book insisted on production of conclusive evidence as to the guilt and points out the dangers of relying on 'Appearances'. According to Dharamshastras, the general principle was laid down as early as in Apastamba to the effect that no one should be punished on on bare suspicion and that the king should pass sentence only after full investigation by means of witnesses or by Ordeal. Kautilya's doctine of conclusive evidence is found in Samaptkar-nam Niyamat.

cp lUnsgk n.Mk dk;Zr A lqfo/ku fof/kUu N= izU;Ug % ;kdk }gk; AIn the trap case of bribery the above principle of the burden of proof, has not been in any manner altered except to the extent of the legal presumption about the motive, mentioned in Section 4 of the Prevention of Corruption Act. Even there the burden of proof which has been shifted on the accused under Section 4 will stand discharged if he establishes his case by preponderance of probability as is done by a party in civil proceedings.

21. In Para 23 I have mentioned as under:

Dealing with the question of burden of proof Sarkar in Evidence 12th Edition page 33 has made the following summary:Rules of proof in criminal cases, when dealing the serious questions of the guilt or innocence of persons charged with crime, the following general rules have been laid down for the guidance of Tribunals. The onus of proving every-thing essential to the establishment of the charge against the accused lies on the prosecutor (see post notes under Sections 101-104 'Criminal Cases' (2). The evidence must be such as to exclude a moral certainly every feas-able doubt on the guilt of the accused (3) In matters of doubt it is safer to acquit than to condemn for it is better that several guilty persons should escape than that one innocent person suffers; (4). There must be clear and unequivocal power of the corpus delicit: (5) The hypothesis of delinquency should be consist ent with all the facts proved (Basu)

22. Before I proceed further, it would be necessary to take note of the following provisions of the Prevention of Corruption Act.

Section 4. Presumption where public servants accepts gratification other than legal remuneration (1) where in any trial of an offence punishable under sec 161 or sec 165 of the Indian Penal Code (45 of 1860) or of an offence referred to in Clause (a) or Clause (b) of Sub-section (1) of Section 5 of this Act punishable under Sub-section (2) thereof, it is proved that an accused person has accepted or obtained or had agreed to accept or arranged to obtain: for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained or agreed to accept or attempted to obtain that gratification of that valuable thing as the case may be, as a motive or reward such as is or ground such as is mentioned in the said Section 161 or as the case may be. without consideration or for a consideration which he knows to be inadequate.

5. Criminal Misconduct: (1) A public servant is said to commit the offence of criminal misconduct:

(a) If he habitually accepts or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code (45 of 1860); or

(b) If he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration which he knows to be inadequate, from any person who he knows to have been or to be or likely to be concerned, in any proceedings or business transacted or about to be transacted by him or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person when he knows to be interested in or related to the persons so concerned; or

(c) If he dishonestly or fraudulently misappropriates or other wise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he, by corrupt or illegal means or by otherwise abasing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(e) if he or any person on his behalf is in possession or has as any time during the period of his office, been in possession, for which the public servant cannot satisfactorily account of pecuniary resources or property disproportionate to his known sources of income.

5(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less then one year but which may extend to seven years and shall also be liable to fine.

Provided that the court may, for any special reasons recorded in writing impose a sentence of imprisonment of Jess then one year.

23. In the instant case undoubtedly there is an admission of the accused that Rs.300/- were given by the decoy and taken by the accused at the time of trap and they were recoverd from the accused. The question still reads as Whether the defence of the accused in respect of advancement of loan and its repayment is a plausible defence on account of which the prosecution case becomes doubtful.

24. It may be mentioned that an the prosecution has been relieved of discharging the burden of proving the entire trap of payment because of admission of the accused, so also the defence version that Rs. 300/- were received back on account of repayment of Joan also finds initial mention right at the commencement of the investigation, in the first important event of trap, namely preparation of the recovery memo. It is one of those extraordinary cases where the recovery memo itself contains a note regarding this defence. It is also a special feature of this case that not only the recovery memo contains this note, but corroborative evidence of this is made available at that time by production of a diary containing an entry that Rs. 300/- were given as loan to the decoy.

25. It has yet to be seen whether the defence of the accused that Rs. 300/-was taken by him from the decoy as repayment of loan is an after thought concocted, fabricated defence or it has got some element of genuineness, and whether it can be accepted as a plausible defence, though it may not be proved beyond reasonable doubt.

26. Before I proceed to analyse this material aspect of the case, it would be useful to mention here that the trial court have discussed this aspect of the case in details and rejected the theory of defence as having not been proved and not established for a variety of reasons. 1 would deal them a little later

27. It must first take notice of an affidavit of the decoy himself which is Ex.D 2 and which reads as under: (In Hindi)

28 This document is of vital importance in this case because, if believed the entire prosecution case failed flat on the ground because none else but the decoy himself has admitted in this affidavit that the amount of Rs. 300/- was taken by him from the accused and the same was repaid. Not only that affidavit has been produced but the defence has taken care to examine the Notary Public Shri Shiv Shanker Advocate before whom the affidavit was sworn by the decoy and two witnesses who have identified the decoy and on. whose identification this particular attestation was done by notary public . after getting thumb impression of the decoy on each page.

29. The decoy has not disowned this affidavit altogether but had his reservations. This Ex.D/2 is on stamp paper and not on an ordinary paper, More ever, right from the time of purchase of stamp papers it shows an entry that it was purchased either by or for Labh Singh son of Jagwant Singh on 29-4-79, the very day on which the affidavit was sworn in.

30. In this affidavit the decoy states that he was conversant with Mahendra accused who was Audit Inspector and he took a loan of Rs. 300/- from ' him. Labh Singh then states that on 21-10-1972 he was going to the house of Mahendra Singh Inspector for repayment of Rs. 300/- back and at that time Ajmer Singh and Rup Singh, prosecution witnesses met him along with one more person. Ajmer Singh and Rup Singh asked him what for he was going and then he told them that he was going to the house of Mahendra Singh. They went to the house of accused and paid Rs. 300/- to Mahendra Singh but before that he was asked by Ajmer Singh and Rup Singh and one other person to give the notes to Ajmer Singh first and then they were, given back to Mahendra Singh. He was threatened by those persons that be should not disclose the story of loan and should put impression.

31. Thus the decoy Labh Singh in this affidavit made a clean breast of himself and said that in fact the amount of Rs. 300/- was not given as bribe but it was a repayment of loan. The affidavit bears the said of notary public on both pages and it contains the thumb impressions of Labh Singh. Labh Singh's thumb impression has also been obtained at the time of identification and these thumb impression are quite visible. I have made this observation because if any blurred thumb impression would have been there, then it would have been possible to say that the affidavit is fabricated or forged one.

32. Labh Singh has not denied the thumb impressions and ,has come up with the story which will have to be considered a little later. The affidavit is typed one and Notary Public Shiv Shanker has put his seal both of swearing and of Notary on it. I have mentioned the details of all there in order to show that there is art element of genuineness in this affidavit and prima facie subject to discussion of other evidence, the affidavit cannot be brushed aside as fabricated document produced by the defence for supporting the false defence. It would be interesting here to mention what Labh Singh has to say about this affidavit. When confronted, with the affidavit, Labh Singh could not dare to deny it altogether. His story was that the two witnesses' namely, Karan Singh Sardara Ram who identified him got his thumb impression on a paper and he did put it, but he has not sworn an affidavit Ex.D/2 read out to him. When he was questioned why he did not complain against the persons who got his thumb impressions, he, replied that he had no suspicion against them and therefore there was no occasion to make a complaint against these persons. The interesting aspect of the story, which he has given as explanation is that Karan Singh and Saradara Ram met him 5-6 months after the incidents and told him that they would get his account clear. He further told that he put these impressions on a paper but did not read what was written on it. The must significant important and crucial admission made by the decoy Lath Singh is:

dkxt ds dSls Fks tSls ewN fn[kkus dk nso gS A

It is pertinent to note here that this witness says that if he would have read even the papers then he would not have put the thumb impression. The statement of the decoy Labh Singh read as a whole makes it clear that he put the thumb impression on Ex. D. 2 He further admitted that the document was written one and was Ex. D/2, because he says that it was similar to it, but thereafter he takes a summer sault and states that he is not author of the language A to B written on this document Ex. D/2.

33. The above affidavit has been proved by Shiv Shanker Notary Public and examination of witnesses Sardara Ram and Shiv Shanker. It may be that the statement of these witnesses and the affidavit read as a whole may create a doubt about the truthfulness of entire story unfolded by the defence, but a doubt about the defence version can never be equated with the doubt about the prosecution case Whereas a doubt in prosecution case proves fatal resulting in an acquittal of the accused, the doubt in the defence case may lead to a conclusion that the defence has not proved its case beyond reasonable doubt. In Rameshwar Prasad Trivedi v. State of Rajasthan, It was held as under:

The doctrine of proof in the context of the plea of insanity may be stated in the following proposition (1) The prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mensrea; 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 384 of the Indian Penal Code; the accused may rebut it by placing before the court all the relevant evidence oral, documentary or 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 coffence, including mens rea of the accused and in that case the court would be entitled to acquit the accused on the round that the general burden of proof resting on the prosecution was not discharges.

The latest decision of the apex court in Bansilal Yadav v. State of Bihar : 1981CriLJ741 makes it clear that admission of the accused regarding the acceptance of taking the money or finding of money from his custody would not relieve the prosecution of its burden to prove the prosecution case. Their Lordships of the Supreme Court observed as under:

Before presumption can be raised, the burden is on the prosecution to prove that the accused has accepted or obtained or has agreed to accept or attempted to obtain for himself any gratification other than legal remuneration etc. If the accused when examined under Section 313 of the Code of Criminal Procedure with reference to circumstances appearing against him in evidence, only stated that currency notes were thrust in his pocket, that statement by itself without anything more is not sufficient to satisfy the necessary ingredients of Section 4(1) that accused accepted or obtained or agreed to obtain, any gratification other than legal remuneration so as to be able to raise the presumption. Acceptance or obtaining, or agreeing to accept or attempting to obtain is a voluntary act. In the statement of the accused, this element of voluntary acceptance is missing. Therefore, the statement of the accused by itself in the facts and circumstances of this case and a specially the language used can not provide the necessary factual basis or situation which must exist before presumption can be raised. In fact accused denied having accepted bribe and stated that he was the victim of malevolent act of Hansbad in thrusting marked currency notes in his pocket. This statement will not show acceptance of illegal gratification and the High Court was in error in raising the presumption under Section 4.

However it is not necessary to discuss all other cases because as laid down in the latest case Bansilal Yadav v. State of Bihar (Supra) the burden always lies on the prosecution and even if it is found that the accused is in receipt of money, then it is further necessary that the prosecution should show that it was voluntary and conscious act on the part of the accused. Again even in those cases, presumption can not be raised under Section 4 where plausible explanation comes from the side of the accused which can not be termed to be false and fabricated altogether and can be safely placed in the jacket of reasonable and plausible explanation and then the accused and the accused alone can get benefit of doubt.

34. In the instant case, I have examined some of (he testimony of the witnesses and I have further noted that the interwoven relationship of decoy Labh Singh with Ajmera Singh who are none-else than the brother or' Rup Singh gives support to the defence theory that these were the persons against whom bailable warrants were issued by the department concerned on the basis of the complaint lodged by the accused. They were to find out some opportunity to settle the score, and found it to be God sent golden opportunity. The character of Labh Singh decoy as depicted clearly shows that it is difficult to believe that after a person who becomes the decoy in a trap case will fall into the trap and put thumb impression before the Notary Public without knowing what is written on the affidavit. This is too tall a claim to be accepted. The affidavit of Labh Singh has given a decisive death blow to the prosecution case and even after entertaining doubts about the truthfulness of the drama narrated in affidavit, a lurking suspicion and a 'doubtful doubt' cannot be ruled out in the prosecution baloon, the gas from which has leaked out by this pin prick affidavit. This is a tragedy that the learned Sessions Judge has not chosen to give due importance to this vital aspect of the case that Shri Shiv Shanker, the Notary Public has only corroborated and proved the story which has been indirectly admitted by Labh Singh.

35. The result of the above discussion is that this appeal succeeds and the accused is acquitted of all the charges framed against him under Section 161 IPC and Section 5(2) read with Section 5 (1) (d) of the Prevention of Corruption Act as the entire prosecution story is doubtful in view of the plausible and reasonable defence put up by the accused which has remote element of geruiremss, though it might not have been proved beyond reasonable doubt. The accused is on bail. He need not surrender to his bail bonds.

36. Before parting with the case, I must mention that this is one of these typical cases where I am giving benefit of doubt' to the accused even though 1 have got moral conviction contrary to it. I have devoted anxious moments to persuade myself to act on moral conviction but on a thoughtful weighment of Moral conviction v. Legal Proof, I have failed to persuade myself to substitute Moral conviction in place of legal proof as in the ultimate analyais, Moral Conviction is laudable name of legal conjecture.

37. An able Public Prosecutor might have put some new facts of the case and made certain strong points of prosecution patent, which' might be otherwiselatent, in an exparte hearing.

38. In such a critical balanced situation, the absence of assistence by the prosecution agency was so serious that 1 wonder why inaction of this serious nature, should not be taken note of by the Government mere so in a case of Anti Corruption Department as in public eyes the delicate thin line between 'Inaction & Corruption' cannot be deciphered by naked eye except with a microscope. Is it not yet another trap for getting out of a trap, in a trap case, can only be taken by careful enquiry by the concerned Authorities? May this Court hope that these meaningful observations would not languish and remain unattended about abeting the inaction and lethergy of prosecution in the conduct of this appeal. May this Court expect that the Anticorruption Department's prosecution agency in the High Court would not commit such a serious lapse of non-appearance and offering 'walk' over to the accused in future and take both preventive and punitive steps to stop and halt it for future by effectively assertion 'So far and no more'.

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