S.C. Agrawal, J.
1. This appeal has been filed by the State against the judgment dated May 2, 1973 passed by the Special Judge, Sri Ganganagar, whereby, the accused-respondent R J. Moolchandani has been acquitted of the charges under Section 161, I.P.C. and Section 5(2) read with Section 5(1) of the Prevention of Corruption Act (for short 'the Act').
3. The case of the prosecution, briefly stated, is as under:- At the relevant time, the accused-respondent was posted as Assistant Commercial Taxation Officer, C-Ward, Sri Ganganagar, and was dealing with (he assessment of the passenger & poods tax payable by M/S Nanak Roadways who were plying their buses from Raisinghnagar to Ursar and Raisinghnagar to Annopgarh. On 19.10.1970, PW5 Jarnailsingh, who was employed as a cashier with M/s. Nanak Roadways, submitted an application (Ex. P/6) before Shri Jhabarmal Maheria (P W8), Additional Superintendent of Police, Anti-Corruotion, Sri Gangaragar. In the said application, it was stated that the proceedings for assessment of the passenger & goods tax payable by M/s Nanak Roadways for the year 1969-70 were pending before the accused-respondent and that the accused-respondent instead of levying penalty was compelling them to pay bribe and the M/s Nanak Roadways did not want to pay him & wanted that the accused-respondent should be caught. In the said application, it was stated that a sum of Rs. 500/-has been agreed to be paid as bribe and it was prayed that, necessary action may be taken. Along with the application aforasaid, five currency notes of Rs. 100/- denomination were submitted by Jarnailsingh before the Additional Superintendent of Police, Anti-corruption. The serial number, of the five currency notes of Rs. l00/-each was also mentioned in the said application On receipt of that application, Jarnailsingh was directed to bring two witnesses & he brought Shivlal (P.W.3) and Sahe-bram (P.W.7) before Shri Jhabarmal Maheria, Additional Superintendent of Police, In the presence of those two witnesses, Shri Jhabarmal Maheria put his initials on the five currency noets of Rs. 100/- each & after applying phenolphatheline powder on the notes, he handed over the currency notes to Jarnailsingh, with the direction that they may be delivered to the concerned officer on being demanded and thereafter , he may give a signal regarding delivery of the currency notes by putting his hand on bis head. One of the witnesses, Shivlal (P.W.3) was sent along with Jarnailsingh to the office & the other witness Sahebram (P.W.7) was kept with the trap party, Jarnailsingh went into the room of the accused and asked him as to whether he would check the record then or after some time. The accused told Jarnailsingh that the statements may be prepared and thereafter, he would check, the statements. Jarnailsingh came out of the room of the accused-respondent and prepared the statements & again went into the room of the accused after 3 P.M. while he was checking the statement prepared by Jarnail Singh the accused-respondent told Jarnailsingh about the talk, which had taken place erlier, regarding the payment of Rs.500/- and asked whether he had brought the money. Thereupon, Jarnailsingh gave the five currency notes of Rs 100/- each to the accused-respondent and he put the same into the pocket of the trousers. Shivlal (P.W.3) entered into the room, when Jarnailsingh delivered the currency notes. The settled signal as agreed upon, was given and thereupon, the trap party consisting of Jhabarmal Maheria (P.W.7) and Naharsingh Sub-Inspecter (P.W.6) Sahebram (P.W.7), and Mangharam Constable (P.W.4) & Peeraram. Sub-Inspector entered into the room of the accused-respondent, Jhabarmal Maheria, after giving his introduction to the accused-respondent, asked him to produce the five currency notes that had been taken by him as bribe. The accused-respondent refused having accepted any bribe. Thereupon, Megnaram Constable (P W.4) took the search of the accused and five currency notes of Rs. 100/- each were recovers from the pocket of his trousers. The number of the five currency notes of Rs. 100/-each were compared with the numbers noted in the application & the since the numbers tallied with each other the currency notes were se zed vide seizure memo Exp./1. Thereupon, the accused-respondent was arrested and a case under Section 161, IPC and Section 5(1)(d) of the Act was registered against him. After the usual investigation and after obtaining the requisite sanction (Ex P/7) from the State Government, the charge-sheet was filed against the accused-respondent in the court of the Special Judge, Sri Ganganagar.
3. The prosecution in support of its case, examined eight witnesses. PW5 Jarnailsingh is the complainant, PW2 Mangalsingh, PW3 Shivlal Arora and PW.7 Sahebram are the attesting witnesses and PW.4 Mengharam, PW6 Naharsingh and PW.8 Jhabarmal Maheria are the Police Officers, who had taken part in the trap.
4. In his statement rercorded under Section 342, CrPC the accused-respondent pleaded that the case of M/S Nanak Roadways was fixed on 19.10.70 and he did not demand any bribe from M/S Nanak Roadways or Jarnail Singh. The accused respondent also stated that he had asked Jarnail Singh whether the tax for the vehicles for the month of September 1970 had been deposited or not and thereupon, Jarnailsingh said that he bad brought Rs. 500/- and the same may be deposited and that thereafter he (accused res-pondent) called Mohanlal and asked him to issue a receipt for Rs. 500/- on account of tax for vehicle No. JK 7555 and that Mohanlal stated that the bank time was over and he had asked the accused to keep the money while he would issue the receipt and thereupon he (accused-respondent) put the money in his pocket. The accused respondent has further stated that when the Additional Superintendent of Police asked him about having accepted bribe, he (accused-respondent) replied that he had not taken any bribe and that he had money deposited by way of tax, which was Government property and thereupon, on the direction of the Additional Superintendent of Police, Mengharam Constable took out the currency notes out of the pocket of his trousers.
5. The accused-respondent, in support of his defence, examined 6 witnesses. DW.1 Somsingh was an assessee, who had come into the room of the accused-respondent on October 19, 1971 at the time the sum of Rs. 500/-was paid by Jarnailsingh, DW.2 Mohanlal & DW.3 Kastooralal are the clerks in the office of the accused-respondent and have been examined to show that the money that was received by the accused-respondent from Jarnailsingh was towards the payment of advance tax. The other witnesses viz. Tribhuvan Prasad Gupta (PW.4), Chandi Dan (DW.5) and Saitansingh (DW.6) have been examined by the accused-respondent to show that there was a heavy demand of taxes against M/S Nanak Roadways in respect of their three buses No. RJK 7555, 7485 and 7554 for the year 1969,70.
6. The learned Special Judge, by his judgment dated May 2, 1973, has observed that in the present case, it is not disputed that Jarnailsingh had given a sum of Rs. 500/- in the form of five currency notes of Rs. 100/- each denomination to the accused-responent. According to the Special Judge, under Section 4 of the Act, there is a presumption that the accused has accepted or obtained or agreed to accept or attempted to obtain the gratification as a motive or reward such as is mentioned in Section 4 IPC unless the contrary is proved by him. The learned Special Judge has further observed that the aforesaid burden, which lies on the accused under Section 4 of the Act, can be discharged by him by a preponderance or probability and he is not required to establish his case by the test of proof beyond all reasonable doubt. The learned Special Judge has further observed that the accused can discharge his burden by adducing evidence in rebutetal of the presumption under Section 4 of the Act and that he may even probablise his defence by the prosecution evidence itself. In the light of the aforesaid principles, the learned Special Judge has examined the evidence on record and has held that the case of the accused-respondent that the amount of Rs. 500/- in the form of five currency notes of Rs. 100/- each, denomination, which had been recovered from his possession, has been received by him by way of advance tax for the month of September 1970 in respect of Bus No. RJK 7555 and that the said amount was accepted by the accused-respondent because the bank time was over & that the accused-respondent asked his clerk Mohanlal to issue a receipt in respect of the said amount and thereupon, Mohanlal prepared the receipt Ex D/11, was established from the evidence of the complainant himself. In this connection, the learned Special Judge has pointed out that Jarnailsingh during the course of cross-examination had stated that the advance tax is payable within a week of the succeeding month and that advance tax for Bus No. RJK 7555 for the month of September 1970 was due and that accused-respondent had asked him as to whether the advance tax in respect of Bus No. RJL 7555 had been deposited and then he fold the accused that he would deposit the same and had also admitted that at the time when he gave Rs. 500/- to the accused-respondents Mohanlal clerk of the accused-respondent was present and that, thereafter, the accused-respondent had told Mohanlal to issue receipt of Rs. 500/- in respect of advance tax for the month of September 1970 for Bus No. RJK 7555 and that Mohanlal asked the accused-respondent to keep the money as the bank time was over. The learned Special Judge was also of view that the version given by PW. 3 Shivlal was unbelievable and that from the evidence of PW. 7 Sahebram, it would appear that PW.3 Shivlal had entered into the room along with him and he has clearly stated that when the accused was asked whether he had taken the bribe of Rs. 5CC/- then the accused-respondent told that he had not taken any money, and he further stated that he had received Rs. 500/- on account of advance tax and not as bribe. In view of the statement of Sahebram (PW.7), the learned Special Judge held that by adopting the test of Preponderance of Probablities, the plea raised by the accused-respondent, stands proved and there was considerable reason for doubt regarding the truth of the prosecution case. In view of the aforesaid finding the learned Special Judge held that offences under Section 161, IPC and Section 5(2) read with Section 5(1)(d) of the Act is not clearly brought home to the accused and the accused- respondent was acquitted of the said offences.
7. We have heard Mr.M. C. Bhati, the learned Public prosecutor for the State and Mr. B.R. Purohit, the learned Counsel for the accussed-respondent and have gone through the entire record of the case carefully.
8. The learned Public Prosecutor has submitted that the learned Special Judge was in error in acquitting the accused-respondent. According to the learned Public Prosecutor, the guilt of the accused-respondent is established from the evidence of the complaianant P.W. 5 Jarnailsingh & attesting witnesses.; P.W.3 Shivlal & P W.7 Sahebram and the police witnesses.; P,W.4 Mengharam, P.W.6 Naharsingh and P.W.8 Jhabarmal, Addl. S.P. The learned public prosecutor submitted that in the present case, since the acceptance of the sum of Rs 500/- by the complainant Jarnail Singh to the occused-respondent has been established the presumptien under Section 4 of the Act was Act was applicable and that in the facts and circumstances of the case, it cannot be said that the aforesaid presumption has been rebutted by the accused-respondent and that the offences under Section 161, IPC and Section 5(1) read with Section 5(1)(d) of the Act are fully proved against the accused-respondent.
9. Mr. B. R. Purohit, the learned counsel for the accused-respondent has, on the other hand, submitted that in the present case, the presumption under Section 4 of the Act could not be attracted because the prosecution had adduced any evidence to show that the accused-respondent has not accepted the five currency notes of Rs. 100/- denomination by way of bribe, Mr Purohit has submitted that in the present case, there is no evidence on the record to prove the demand made by the accused-respondent. Mr. Purohit has further submitted that even if it be assumed that the presumption under Section 4 of the Act can be invoked the said presumption stands rebutted from the evidence of the complainant, Jarnailsingh (P.W5) and Sahebbram (P.W.7), which shows that the amount of Rs.500/- which was paid by the complainant to the accused respondent was not as bribe but by way of advance tax, which was due in respect of Bus No. RJK7555 of M/S Nanak Roadways. Mr. Purohit has lastly submitted that this is an appeal against an order of acquittal & this court should not interfere with an order of acquittal unless it is found to be perverse and that in facts and circumstances of the case, it can not be said that the findings recorded by the learned Special Judge are unreasonable and perverse.
10. In the present case, there is no dispute that the accused-respondent had received from the complainant Jarnailsingh (P.W.5) a sum of Rs 500 /- in five currency notes of Rs. 100/- denomination in his office on 19th October 1970 at about 4 p.m. The main question, which arises for consideration in this appeal is whether the said sum was received by the accused-respondent by way of bribe, as claimed by the prosecution or on a count of advance tax for the month of September 1970 for Bus No.RJK 7555 as claimed by the accused-respondent.
11. The prosecution has not adduced any evidence to prove the demand of bribe by the accused-respondent. According to Jarnailsingh (P.W.5) the demand for Rs.500/- as bribe was made by the accused-respondent from Niranjansingh a partner of M/S Nanak Roadways. Jarnailsingh (P.W.5) does not claim that he was present at the time when the said demand was made Niranjansingh was the only person, who could have proved such a demand but he has not been examined by the prosecution. Thus, there is no direct evidence to prove the demand and acceptance of the sum of Rs.500/- by the accused-respondent by Way of bribe. The prosecution case rests wholly on the presumption availble under Section 4 of the Act.
12. In Tejsingh v. State of Rajas than 1979 RLW 37, the relevent law relating to the presumption arising under Section 4 of the Act has been considered by this court and the following principles have been summarised:
(a) that the burden of proving the prosecution case, generally lies on the prosecution even in case of trap of bribery.;
(b) that this burden is not shifted by the enactment of Section 4 of the Prevention of Corruption Act.;
(c) that 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;
(d) that even in raising the Presumtion under Section 4, the act of acceptance or obtaining must be filful, voluntary and with conscious mind;
(e) that 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.;
(f) that the accused is not required to rebut this Presumption by leading evidence beyond reasonable doubt. But all that is reequired to show is to establish Preponderance of probality in his favour and.;
(g) that the witnesses of trap are not to be discarded as accomplices but in a given case the court can insist on independent corroboration for believing their testimony.
13. In the present case, the explanation, which has been offered by the aecused-respondent is that the money that was recovered from his poseession was paid to him on account of advance tax for the month of September 1970 for Bus No. RJK7555 and that the accused respondent has asked his clerk, Mohanlal, to prepare the receipt for the said amount and Mohanlal told him that money may be kept with him because the bank time was over. In support of the aforesaid explanation the accused-respondent has examined three witnesses:. Somsingh (D.W.) 1 Mohanlal (D W. 2 & Kasto-orallal (D.W. 3) Somsingh (D.W.1) is the Manager of the Onkar Transport Corporative Society, Padampur and has deposed that he had gone to the office of the accused-respondent at about 3.15 p.m. on October 19, 1970 in connection with the assessment case and while was sitting in the room of the accused- respondent, Jarnailsingh lal come into the room and the accused-respondent asked Jarnailsingh whether he had deposited the tax for the month of September 1970 and Jarnailsingh stated that he has brought the money with him for depositing the same. Somsingh (D. W. 1) has further stated that the accused respondent told Jarnailsingh to deposit the tax in the bank but Jarnailsingh said that he would have to stay till the next day and he requested that the money may be accepted in the office and receipt be issued to him and thereupon, the accused respondent asked Mohanlal to issue a receipt for the said amount and Mohanlal said that he could not keep the money with him and requested the accused respondent to keep the money with himself and thereafter, Jarailsingh paid Rs. 500/- to the accusrd respondent and that amount was put by the accused respondent in the pocket of the trousers. Mohanlal (D.W.) 2 and Kistoorilal (D.W.3), who were employed as clerk in the office of the accused respondent have also given the same version and have stated that on October 19, 1970 at about 3.30 p.m. Jarnailsingh had entered the room of the accused-respondent as to whether the tax for the month of September 1970 had been deposited, told that he had brought the money and requested that it may be accepted in the office and thereupon, the accused-respondent had asked Mohanlal to pepare the receipt and Mohanlal (D.W.2) had said that since the bank time was over, the money could not be deposited on that day and suggested that the money may be kept by the accused-respodnent with himself and thereupon, Jarnailsingh gave the sum of Rs.500/- to the accused-respondent, which was kept by the accused-respondent in the pocket of his trousers.
14. In addition to the aforesaid evidence, that has been adduced by the accused-respondent in his defence, there is the statement of the complainant Jarnailsingh (P.W.5) who has stated during the course of cross-examination as under:
tc [email protected]& eSus fn, rc ewypUnkuh us eksguyky dks dgk Fkk [email protected]& dh jlhn dkV vkSj flrEcj 1970 cl ua- vkj- ts- ds- 7555 ds ,MokUl VsDl dh dkV nh A eksgu yky us dgk fd iSls vki gh ewypUnkuh j[k yks] D;ksfd cSd dk le; [kRe gks x;k gS A
At the end of the cross-examination, the Court put a question to the witness and the answer given by the witness to the said question is as under
loky vnkyr % & vkius mij ftjg es fy[kk;k gS fd [email protected]& tks vkius ^fn;s^ mlds fy, ewypUnkuh us eksgu yky dks ,M+okal VSDl dh jlhn dkVus ds fy, dgk A D;k vkidk c;ku lgh gS
tckc %& xokg us bl loky ds tckc es cgqr nsj yxkbZ vkSj dkQh nsj ckn ;g tckc fn;k fd ;g dqN c;ku xyr gks x;k gS A;g ewypUnkuh us eksguyky ls dgk Fkk fd ;kfu iSlsk dh jlhn dkV ns fdrus :Ik;s vkSj fdlds uke dh dkV nks ;g ugh crk;k A
15. It would thus be seen that the complainant himself, during the course of cross-examination, has admitted that the accused-respondent had asked Mohanlal to prepare the receipt of Rs. 500/- and that was over. Jarnailsingh reiterated the same statement Mohanlal told the accused-respondent that bank time was over, Jarnailsingh reiterated the same statement in answer to the question put by the court and stated that the accused-respondent had asked Mohanlal to prepare the receipt of the said amount. Thus, the statement of complainant Jarnailsingh (P.W.5) lends support to the evidence of Somsingh (DWPZ (D.W.1), Mohanlal (D.W.2) and Kistoorolal (D.W.3), who have been examined by the accused-respondent in his defence, in addition to the other attesting witness Sahebram (P.W.7) the evidence of Jarnailsingh (P-W.5) has also stated, during the course of examination-in-Chief that at the time, when he was asked by the Additional Superintendent of Police Shri Jhabarmal Maheria as to whether he had accepted the bribe, the accused-respondent had said that he had not accepted the money and that he had accepted the bribe, the accused, respondeat had said that he had not accepted the money and that he had received Rs. 500/- as advance tax and not as bribe. The aforesaid statement of Sahebram (P.W.7) also lends support to the case that has been forwarded by the accused-respondent that the sum of Rs. 500/-was received by him on account of advance tax by M/S Nanak Roadways and not as bribe.' We find no reason why the evidence of Somsingh (D.W.) Mohanlal (D.W.9) and Kistooralal (D.W.3) which finds support from the evidence of Jarnailsingh (P. W.5) and Sahebram (P.W.7) should be rejected and on the basis of the said evidence we are of the opinion, that the case, set up the accused-respondent must be accepted and it must be held that the accused-respondent has successfully rebutted the presumption drawn against him under Section 4 of the Act and the finding recorded by the learned Special Judge in this regard must be affirmed Since, we are in agreement with the finding recorded by the learned special Judge that the presumption raised under Section 4 of the Act his been rebutted by the accused-respondent by Preporderance of Probobilities, it must be held that the prosecution has failed to establish the guilt of the accuse-respondent for the offences under Section 161, I.P.C. and Section 5(2) read with Section 5(1)(d) of the Act.
16. In the result, this appeal has no force and it is here by dismissed.