Jai Singh v. State of Rajasthan — 1964 DIGILAW 150 (RAJ)

CHHANGANI, J.—This is an appeal by Jai Singh against the judgment of the Special Judge, Ajmer dated 18th November, 1963, convicting him of offence under Sec. 161 Indian Penal Code, and Sec. 5 of the Prevention of Corruption act, 1947, and sentencing him to one and a half years rigorous imprisonment on each count. The sentences have been directed to run concurrently. 2. The material facts on which the prosecution is founded may be briefly stated as follows:– The appellant was Sub-Inspector, Police Station, Sawar in District Ajmer in December, 1961 and January, 1962. There was some dispute between Ram Prasad (P. W/1) and his brothers wife Mst. Chosar Bai in respect of the property of one Durgalal who had died issueless. Ram Prasad claimed to be an adopted son of Durgalal. Mst. Chosar Bai had been living with Durgalal during his life time and she also claimed the property of Durgalal. Initially Ram Prasad lodged a complaint against Mst. Chosar Bai in the Court of first (lass Magistrate, Kekri, and obtained a search warrant for the recovery of articles belonging to Durgalal from Mst. Chosar Bai. The search warrant was addressed to the Station House Officer, Police Station Sawar and the accused-appellant got the property belonging to Durgalal recovered. On 27th December, 1961 Mst. Chosar Bai made a report before the Station House Officer, Police Station, Sawar, to the effect that Ram Prasad had broken open the lock of her house in village Motalao and had taken away 25 maunds of wheat. The accused-appellant on 27th of December, 1961 refused to take any action on the report on the ground that the dispute between the parties appeared to be of a civil nature. Mst. Chosar Bai had made a similar report to the Station House Officer, Police Station, Kekri. The Station House Officer, Kekri sent the report to the accused as the dispute related to his jurisdiction. The accused on receipt of that report registered a case under secs. 454 and 380 Indian Penal Code against Ram Prasad and his wife Mst. Gulab ignoring his previous order refusing to take any action in the matter. The accused thereafter is alleged to have told Ram Prasad that he should pay him Rs. 200/- for not arresting his wife Mst. Gulab. Ram Prasad expressed his inability to pay the amount stating that he was a poor man. Gulab ignoring his previous order refusing to take any action in the matter. The accused thereafter is alleged to have told Ram Prasad that he should pay him Rs. 200/- for not arresting his wife Mst. Gulab. Ram Prasad expressed his inability to pay the amount stating that he was a poor man. The accused insisted in his demand and eventually Ram Prasad paid Rs. 100/- to him for the purpose. The accused then arrested Ram Prasad on 3rd January, 1962 and produced him before the First Class Magistrate, Kekri, at his residence, on the 4th of January, 1962 for remand to judicial custody. An application for bail was moved on behalf of Ram Prasad. The Magistrate directed that the case would be taken up the next day in court. On 5th January, 1962 the Magistrate granted bail to Ram Prasad. The accused on that occasion showed the formal arrest of Mst. Gulab wife of Ram Prasad and produced her also before the Magistrate. She was also directed to be released on bail. After the release of Ram Prasad and his wife Mst. Gulab, the accused contacted Ram Prasad and told him that Radhey Shyam his daughter would also be arrested as she was also connected with the theft and that if Ram Prasad wanted to save her from being arrested he should pay Rs. 300/- to him. Ram Prasad reported that he had no money with him. The accused advised him to contact his brother-in-law Ram Sarup and arrange for the money. Ram Sarup was thus brought into picture. Eventually, it was agreed between Ram Sarup and the accused that the amount of Rs. 150/- would be paid to the accused on 7th January, 1962, at Kekri. Ram Sarup was not, however, willing to pay the amount. He, therefore, went to Jaipur and met Shri Panneysingh, Superintendent of Police, Anti Corruption Department. He submitted application Ex. P/5 along with 15 currency notes of Rs. 10/- each to him. Shri Panneysingh initialled the currency notes Ex. 1 to Ex. 15 and deputed Shri Motilal Dabi (P.W/6) to arrange for a trap. He asked Ram Sarup to go back to Kekri and wait there. On 7th January, 1962 at about 2 p.m. Motilal Dabi, Deputy Superintendent Police, Anti Corruption, Jaipur, reached Kekri. He gave currency notes Ex. 1 to Ex. 15 to Ram Sarup vide delivery memo Ex. 15 and deputed Shri Motilal Dabi (P.W/6) to arrange for a trap. He asked Ram Sarup to go back to Kekri and wait there. On 7th January, 1962 at about 2 p.m. Motilal Dabi, Deputy Superintendent Police, Anti Corruption, Jaipur, reached Kekri. He gave currency notes Ex. 1 to Ex. 15 to Ram Sarup vide delivery memo Ex. 6 for being paid as bribe to the accused-appellant. The accused, however, did not arrive at Kekri on 7th January, 1962. The currency notes Ex. 1 to Ex. 15 were, therefore, returned by Ram Sarup to Motilal Dabi vide memo Ex. P/7. Motilal Dabi thought that his presence at Kekri might arise some suspicion and, therefore, he left for Devli instructing Ram Sarup to inform him of the arrival of the appellant. The accused appellant arrived Kekri on 8th of January, 1962. He met Ram Sarup near the bus stand and it was agreed that the accused would come to Kekri next day with the investigation file, and that the amount of Rs. 150 would be paid to him. Ram Sarup was directed by the accused to see him at the bus stand. Ram Sarup conveyed information relating to the proposed visit of Jaisingh to Kekri on 9th January, 1962 to Motilal Dabi. Motilal Dabi accordingly reached Kekri on the night at about 2 p. m. He handed over the currency notes to Ram Sarup in the presence of motbirs Sampatlal and Gurubuxsingh vide Ex. P-l. He told Ram Sarup that he would be waiting near the patrol pump and instructed him to give the signal after payment of bribe by lifting his Pacheora. The accused came to Kekri by bus on 9th January, 1962 at about 3 p. m. The accused and Ram Sarup then went to court compound which is near the bus stand. The accused showed the investigation file to Ram Sarup and then demanded Rs. 150/- from him. The accused and Ram Sarup then came out of the court compound and went to the hotel of one Hariram, sat down on a cot outside the hotel, and Ram Sarup ordered for tea. He then took out currency notes Ex. 1 to Ex. 15 and gave them to the accused who accepted them and placed them in the left pocket of his pant. Ram Sarup then gave a signal by raising his Pacheora. He then took out currency notes Ex. 1 to Ex. 15 and gave them to the accused who accepted them and placed them in the left pocket of his pant. Ram Sarup then gave a signal by raising his Pacheora. Shri Motilal Dabi and members of his party who were witnessing the incident from the patrol pump reached the spot at once. Shri Dabi gave his identity as Deputy Superintendent of Police, Anti Corruption to the accused and asked him to surrender Rs. 150/- taken by him as bribe from Ram Sarup. The accused was taken by surprise. He began to shiver. He took out the currency notes Ex. 1 to Ex. 15 from the left pocket of his pant and handed them over to Shri Dabi. Seizure memo Ex. P/2 was prepared. Shri Dabi also took the investigation file of the case from the accused. He also took into his possession the pant of the accused. Investigation was carried on and record of the case having been placed before Shri Sultan Singh P. W/7, Deputy Inspector General of Police, Ajmer, he conveyed his sanction vide Ex. P. 9 for prosecuting the appellant in respect of the amount of Rs. 150/- accepted by him as illegal gratification for himself as a motive of reward for showing favour to the accused persons in the First Information Report Case No. 26 of 30.12.1961. After obtaining sanction, Motilal submitted charge sheet in the Court of the Special Judge, Ajmer. Although there was no specific sanction in respect of the payment of Rs. 100/- on earlier occasion, the Special Judge framed charges in respect of the payment of bribe of Rs. 100/- as also in respect of Rs. 150/-. 3. The prosecution examined eight witnesses in support of its case. The accused admitted that he was Station House Officer at Sawar. He also admitted that on 27th of December, 1961 he refused to register a case on the report of Mst. Chosar Bai against Ram Prasad and Mst. Gulab. He also admitted that later on, on receipt of a report through the Station House Officer, Kekri on the same facts, he registered a case under sec. 454 and 380 Indian Penal Code against Ram Prasad and Mst. Gulab. He also admitted recovery of currency notes Ex. 1 to Ex. 15 for Rs. Gulab. He also admitted that later on, on receipt of a report through the Station House Officer, Kekri on the same facts, he registered a case under sec. 454 and 380 Indian Penal Code against Ram Prasad and Mst. Gulab. He also admitted recovery of currency notes Ex. 1 to Ex. 15 for Rs. 150/-from his possession at Kekri at Harirams hotel on 9th January, 1962 at about 3 p.m. He, however, denied his guilt. His version was that Ram Sarup had asked him to take Rs. 150/- from him to be delivered to Mohanlal of village Sadara. He declined to do so twice. Then Ram Sarup told him to deliver the notes to his brother-in-law Ram Prasad at Sawar. He took the amount from Ram Sarup for that purpose. After he took over that amount the police party arrived on the scene and recovered the amount from him. He examined himself in defence and produced four witnesses to support his version. 4. The trial Judge, after considering the evidence on record, came to the conclusion that there was no sufficient evidence for the conviction of the accused in respect of the payment of Rs. 100/- as bribe to the accused. Dealing with the case with regard to Rs. 150/- on 9th January, 1962 the Special Judge after referring to the proved and admitted recovery of Rs. 150/- from the accused-appellant posed the question as to "whether the sum of Rs. 150/- was paid to the accused by Ram Sarup as illegal gratification as has been alleged by the prosecution or was paid to the accused for payment to his brother-in-law Ram Prasad as alleged by the accused." Treating Ram Sarup as the main witness in support of the prosecution case, he discussed the evidence of Ram Sarup as also the various attacks made by the defence on his testimony and concluded as follows :— "Having carefully considered the statement of Ram Sarup, I have no hesitation in holding that his statement is true." The Special Judge also referred to the conduct of the accused in declining to register a case on 27.12.1961 and registering the case on 30.12.61 on the same facts and thought it proper to draw the inference that the accused took a different course on 30.12.1961 in order to harass Ram Prasad and the members of his family to extract money from them. The Special Judge then considered the version given by the defence and disbelieved the statement of Jaisingh giving various reasons for the same. He then discussed the evidence of the remaining defence witnesses and came to the conclusion that their evidence was false and could not be accepted. Dealing with the suggestion of the defence that the accused was not proceeding against Radhey Shyam in connection with the first information report No. 26 and so there could be no question of arresting her or demanding the bribe in that connection, the Special Judge referred to the fact that on the 9th January, 1962 the case diaries from 2.1.1962 to 5.1.1962 were not with the investigation file and inferred that the original diaries from 2.1.62 to 5.1.62 were replaced. The suggestion appears to be that in these diaries there was some reference to Radhey Shyam and the accused has subsequently amended the diaries. Alternatively, the Special Judge observed that "assuming for a moment that in the case diary there was no incriminating evidence against Radhey Shyam, there was nothing for the accused not to give a threat that he would arrest Radhey Shyam as she was connected with the theft and thereby extract money on such pretext." The Special Judge thus accepted the prosecution case and rejected the defence version. Finally, the Special Judge referred to the statutory presumption under sec. 4 of the Prevention of Corruption Act and held that the presumption has not been properly rebutted. On these findings, he has found the appellant guilty and has convicted him as stated above. 5. Mr. M.B.L. Bhargava appearing for the appellant challenges the correctness of the conviction of the appellant. In the first instance, he contended that there was no valid sanction for the prosecution of the appellant and consequently, the entire proceedings are bad in law and that being so, the appellants conviction cannot be sustained. Mr. Bhargava cited a number of cases commencing from the initial leading case reported in Gokulchand Dwarkadas Morarka Vs. The King (1). The various cases relied upon do not disclose any divergence of judicial opinion and the principles of law appear more or less to be settled. I, therefore, do not consider it necessary to notice in detail the various cases. Bhargava cited a number of cases commencing from the initial leading case reported in Gokulchand Dwarkadas Morarka Vs. The King (1). The various cases relied upon do not disclose any divergence of judicial opinion and the principles of law appear more or less to be settled. I, therefore, do not consider it necessary to notice in detail the various cases. It will be sufficient to sum up the principles deductible from these cases as under— (i) The sanction to prosecute is an important matter. A valid sanction is a condition precedent to the valid prosecution of an accused. (ii) The provision of sanction is a most salutary safe-guard. The sanctioning authority is placed some-what in the position of a sentinel at the door of criminal courts in order that no irresponsible or malicious prosecution can pass the portals of the court of justice. (iii) That to constitute a valid sanction it must be established that the facts constituting an offence were placed before the sanctioning authority and that the sanctioning authority applied its mind before giving consent. (iv) That the facts constituting the offence should either appear in the order sanctioning the prosecution or they should be proved by the prosecution by extraneous evidence during the course of trial. (v) That the question of validity or the sufficiency of the sanction may be raised by the accused at any stage before the final decision. 6. Examining the case in the light of these principles it may be pointed out that Ex. P-9 conveying sanction to the prosecution of the appellant purports to recite the facts. It clearly recites that the accused accepted and obtained Rs. 150/-from Ram Sarup s/o Ram Pratap, Kantia, resident of Kuchalwara, Post Deoli on 9.1.62 at the hotel of Shri Hari Ram Chhipa near the Court premises at Kekri as illegal gratification for himself and that the said amount was accepted or obtained by him by corrupt or illegal means by abusing his position as a public servant as a motive of reward for showing favour to the accused in case F.I.R. No. 26, dated 30.12.1961 u/s 457/380 I.P.C. of Police Station Sawar. The contention of the learned counsel for the appellant, however, is that the document Ex. P/9 does not recite the facts on which the appellant has subsequently been found guilty by the trial court. The contention of the learned counsel for the appellant, however, is that the document Ex. P/9 does not recite the facts on which the appellant has subsequently been found guilty by the trial court. The trial Judges finding is that the accused-appellant accepted Rs. 150/- from Ram Sarup as illegal gratification for not proceeding against Radhey-Shyam daughter of Ram Prasad. It was pointed out by Mr. Bhargava that Ex. P-9 contemplated favour to the accused of F. I. R. No. 26 who were Ram Prasad and his wife Mst. Gulab. Radhey Shyam was not an accused in that case. Consequently, it is argued, Ex. P-9 cannot be construed to refer to the payment of Rs. 150/-to Ram Sarup as a motive for reward for not proceeding against Radheyshyam. The facts which have been held to constitute the offences are not mentioned in Ex. P-9 nor there is evidence, it is contended, to show that these facts were placed before the sanctioning authority. This atonce raises the question of the interpretation of Ex. P. 9 and of the proper meaning to be given to it. A few relevant considerations may be indicated at this stage. (i). The grant or refusal of sanction is an administrative function and is entirely a matter for the subjective satisfaction of the sanctioning authority. The sanctioning authority is the judge of the material that should be placed before him to enable him to accord the sanction. (ii) Sec. 6 of the Prevention of Corruption Act does not prescribe the form in which the sanction should be conveyed. It follows that in construing sanction our approach must be realistic and reasonable and should not be clouded by an over strict insistence on statement of facts with mathematical accuracy and logical precision, nor should we expect a strict observance of very nice and subtle distinctions in the forms of expressions. Consequently, variance in the statement of facts in the order of sanction and the facts constituting the offence should not be over emphasised. Consequently, variance in the statement of facts in the order of sanction and the facts constituting the offence should not be over emphasised. In this connection I may refer to the following observations made in K.N.N. Ayyangar vs. State through Delhi Special Police, Jabalpur (2) with which I entirely agree:— "Where it is alleged that there is a material difference between the facts represented to the sanctioning authority and those sought to be proved at the trial the crucial question to be considered in such a case is, is the departure such as might reasonably be taken to affect the judgment of the sanctioning authority on the question of sanction with regard to the matter placed before it ? If the variations are not so substantial as might reasonably be taken to have affected the judgment of the sanctioning authority, then the order of sanction is not vitiated." Approaching the case in the manner thus indicated, it will be proper to point out that the proceedings for arranging a trap against the appellant and the subsequent investigation proceedings commenced with the presentation of the report Ex. P. 5 by Ram Sarup before Shri Panney Singh, Superintendent of Police, Anti Corruption Department, Jaipur. In that report after setting out the facts how Ram Prasad was arrested by the accused and how his wife was sought to be arrested and Rs. 100/-were accepted as bribe, Ram Sarup proceeded to state that after the release on bail of Ram Prasad and his wife Mst. Gulab, the appellant demanded a further bribe of Rs. 300/- from Ram Prasad threatening that otherwise his daughter would be arrested because she was also concerned in committing of the theft of wheat. Ram Sarup further stated that on 5th of June, 1962 he represented to the appellant that the amount of Rs. 300/- was excessive and eventually the amount was lowered down to a figure of Rs. 150/-. The Station House Officer further told him that if the amount was paid the proceedings against them would be dropped. In this initial report the demand of Rs. 150/- as bribe was certainly connected with the threat to arrest Radheyshyam as also with the promise to drop the proceedings. There are no materials whatsoever to indicate that there was a change in the situation at any subsequent stage. In this initial report the demand of Rs. 150/- as bribe was certainly connected with the threat to arrest Radheyshyam as also with the promise to drop the proceedings. There are no materials whatsoever to indicate that there was a change in the situation at any subsequent stage. Shri Sultan Singh P.W. 7 the sanctioning authority appeared in evidence and made a statement that he gave sanction after taking into consideration the record of the case. In cross-examination the only question put to him3 was whether he had gone through the investigation record of the first information report No. 26. No other question was put in cross-examination to him. It will be reasonable to infer that the sanctioning authority must have considered the initial report Ex. P. 5 and other portions of the record before sanctioning the prosecution. His statement that he gave sanction after taking into account the record of the case can have reference to the record of the case which was prepared subsequent to the presentation of Ex. P.5 and cannot relate to the record of the F.I.R. No. 26 State vs. Ram Prasad. If Mr. Sultansingh, the sanctioning authority took into consideration the record of the case which must have contained Ex. P. 5 before giving his sanction for prosecution, as he says, he did, the fact that the bribe was demanded for not proceeding against Mst. Radhey Shyam as also for dropping the proceedings against all the accused could not have escaped his notice and it cannot be said that he had before him only the fact that the demand for bribe was only for the purpose of showing favour directly to Ram Prasad and Mst. Gulab, nor can it be said that he had an impression that the demand for bribe had nothing to do with Mst. Radhey Shyam. Constrains Ex. P. 9 in the light of the recitals in Ex. P. 5 the statement of PW. 7 Sultansingh and the circumstances of the case, I have no hesitation in coming to the conclusion that the expression in Ex. P. 9 that Rs. 150/- were accepted by the appellant as a motive of reward for showing favour to the accused in the first information report No. 26 was in the nature of a loose expression. 7 Sultansingh and the circumstances of the case, I have no hesitation in coming to the conclusion that the expression in Ex. P. 9 that Rs. 150/- were accepted by the appellant as a motive of reward for showing favour to the accused in the first information report No. 26 was in the nature of a loose expression. It cannot be taken to imply that the sanctioning authority had before it a definite case that the accused wanted to accept bribe only to show favour to Ram Prasad and his wife directly. Report Ex. P. 5 contains a recital that the accused had threatened that Radhey Shyam would also be arrested and was thus likely to be treated on the array of the accused. Therefore, mention of reward to the accused in the first information report cannot be taken to exclude reference of favour to Mst. Radhey Shyam who was proposed to be treated as an accused. Besides, there is also a recital in the first information report that the accused promised to drop proceedings against Ram Prasad and Mst. Gulab also. On a proper emphasis on this statement in Ex. P. 5 a broad reference in the letter of sanction to reward the accused in F.I.R. No. 26 under section. 457/380 Indian Penal Code is understandable. Besides, on a liberal interpretation the act of the accused of avoiding to harass Mst. Radhey Shyam can be treated as a favour to the other accused Ram Prasad and Mst. Gulab. The manner of expression with regard to the purpose of the bribe, thus having been loosely mentioned, I do not find that the sanctioning authority had not before him the facts on which the accused-appellant has been subsequently found guilty by the trial Judge. The mere looseness in the matter of expression cannot be considered sufficient to vitiate the sanction. It is significant that before Shri Sultansingh was examined as P.W. 7, the important prosecution witnesses disclosing the various facts had been examined and still Shri Sultansingh was not cross-examined with respect to the facts which he had in his mind while sanctioning the prosecution of the appellant. I am satisfied that the sanctioning authority having taken into consideration the record of the case including Ex. P. 5 had before him the facts constituting the offence and that the sanction does not suffer from any substantial defect or infirmity. 7. I am satisfied that the sanctioning authority having taken into consideration the record of the case including Ex. P. 5 had before him the facts constituting the offence and that the sanction does not suffer from any substantial defect or infirmity. 7. Next, it was contended that Shri Sultan Singh P. W. 7 was not competent to accord sanction for the prosecution of the appellant. According to the learned counsel for the appellant the competent authority to remove the appellant from service is the Governor himself. Shri Sultan Singh P.W. 7 in his statement stated that he was competent to remove the appellant from service. He was not cross-examined on that aspect of the case. No materials have been placed before me as to how the Deputy Inspector General Police Shri Sultan Singh P. W. 7 was not competent to remove the appellant from service. A reference to Rajasthan Civil Services (Classification, Central & Appeal) Rules clearly reveals that the Deputy Inspector General of Police is competent to appoint and remove a Sub-Inspector of Police from Service. 8. It was, however, argued that under Art. 310 of the Constitution, every person who holds any civil post under a State holds office during the pleasure of the Governor and that the State Legislature or the Executive cannot make any law or rule to affect the service tenure at the pleasure of the Governor and consequently it was urged, only the Governor can remove from service a person holding civil post under a State. The learned counsel relied in this connection upon State of Uttar Pradesh vs. Baburam Upadhyay(3). The main question agitated and decided in that case was that the power to terminate the service of an employee at pleasure vesting in the Governor cannot be delegated to any other authority. In other words, no law or rules can be framed under which any other authority other than the Governor can terminate the services of a State employee in the exercise of its pleasure. This case is no authority for the proposition that authorities sub-ordinate to the Governor cannot remove or dismiss a person on there being a proper cause for dismissal or removal. This case is no authority for the proposition that authorities sub-ordinate to the Governor cannot remove or dismiss a person on there being a proper cause for dismissal or removal. Under Art. 309 of the Constitution, the State Legislature and the Governor are competent to enact laws or to make rules regulating the conditions of service and regulation of conditions of service certainly includes provisions regulating removal or dismissal of State employees. In this connection reference may be made to the following observations appearing in para 20 of the Supreme Court judgment in State of Uttar Pradesh vs. Babu Ram Upadhyay (3):– "A law made by the appropriate Legislature or the rules made by the President or the Governor, as the case may be, under the said Article may confer a power upon a particular authority to remove a public servant from service; but the conferment of such a power does not amount to a delegation of the Governors pleasure. What ever the said authority does is by virtue of express power conferred on it by a statute or rules made by competent authorities and not by virtue of any delegation by the Governor of his power......." These observations of the Supreme Court go entirely against the contention canvassed for by the appellants counsel. No other authority has been cited. To me, the contention appears to be misconceived and extravagant, if I may say so. I have no doubt that Shri Sultansingh, PW. 7 Deputy Inspector General of Police was competent to remove the appellant from service and the sanction accorded by him cannot be treated as defective. 9. Coming to the merits of the case, Mr. Bhargava conceded that the currency notes Ex. 1 to Ex. 15 for Rs. 150/- having been recovered from the possession of the accused the statutory presumption under section 4 of the Prevention of Corruption Act is clearly available to the prosecution. He also agreed that the presumption cannot be rebutted by the probability of the explanation offered by the accused. He, however, contended that the accused has examined himself and four other witnesses to prove the examination set up by him. It was contended that the witnesses produced by the accused are in no way interested in the accused and that the Special Judge was not justified in rejecting their evidence for the reasons relied upon by him. He, however, contended that the accused has examined himself and four other witnesses to prove the examination set up by him. It was contended that the witnesses produced by the accused are in no way interested in the accused and that the Special Judge was not justified in rejecting their evidence for the reasons relied upon by him. According to him, the presumption under section 4 of the Prevention of Corruption Act was effectively rebutted by the defence evidence. Dealing with the prosecution evidence, Mr. Bhargava discussed the prosecution case in three different stages, namely:— (i) The stage relating to the incident of 3.1.1962 when the accused and Ram Sarup agreed that the appellant would be paid Rs. 150/- as bribe on 7.1.62 at Kekri. (ii) The incident relating to 8.1.1962 when the accused-appellant having failed to reach Kekri on 7th arrived on the 8th and met Ram Sarup and it was agreed that he would visit Kekri on 9th with the investigation file and receive the bribe. (iii) Relating to the incident of 9.1.1962 when the bribe was actually taken. 10. It was contended by him that the evidence on record to prove the incident of 5th is supplied only by the statements of Ram Prasad P. W/l and Ram Sarup P. W/4, both of whom are interested and partisan witnesses and therefore their testimony cannot tie accepted without independent corroboration. As regards the incident of the 8th, the only evidence is that of Ram Sarup. With regard to the incident of 9th, the evidence with regard to the main incident, namely, payment of Rs. 150/- as bribe, the evidence consists only of the statement of Ram Sarup. Of course there is the evidence of Sampatlal P. W/2, Gurubux Singh P. W/5 and Moti Lal Dabi P. W/6 providing some corroboration with regard to the general prosecution case, but their evidence, it was argued, suffers from certain discrepancies. The learned counsel observed that the prosecution evidence should not have been accepted and acted upon by the Special Judge. The learned counsel also took exception to the observations made in the judgment of the trial court that the case-diaries for 2.1.1962 to 5.1.1962 had been replaced, and contended that there is no sufficient evidence to justify the observations and that the observations so made vitiated the judgment of the trial Judge. The learned counsel also took exception to the observations made in the judgment of the trial court that the case-diaries for 2.1.1962 to 5.1.1962 had been replaced, and contended that there is no sufficient evidence to justify the observations and that the observations so made vitiated the judgment of the trial Judge. An argument was also made that the circumstances based upon the Conduct of the accused at the time of the recovery of the amount from him namely, that he appeared confused and shivered, cannot be used against the accused inasmuch as this circumstance was not put to the accused in his examination under sec. 342 Criminal P.C. Non-production of Brijkishore Vakil by the prosecution was also commented upon and it was urged that an adverse inference should be drawn against the prosecution. In answer, the counsel for the State submitted that the Special Judge has given some general reasons for treating the defence story as improbable and unbelievable and has also recorded some reasons for discrediting the evidence of the defence witnesses. Considering the reasons given generally for disbelieving the defence version and the reasons for rejecting the defence evidence, the finding of the trial Judge is reasonable and calls for no interference. It was also contended that considering the chain of events and the circumstances of the case, the prosecution story as given by Ram Sarup and corroborated by some other evidence and circumstances has been rightly accepted by the trial Judge and that no case for interference has been made out. It was conceded that the alleged conduct of the accused viz. getting confused and shivering was not specifically put to him in his examination under sec. 342, Criminal P.C. but it was contended that the exclusion of this circumstance does not affect the decision on merits. The observations of the Special Judge with regard to the case diaries from 2nd to 5th were supported and alternatively it was urged that the alternative reasoning adopted by the Special Judge in this behalf makes it clear that the judgment need not be vitiated on this ground. Finally, it was contended that Brijkishore was not a necessary and material witness and that at any rate he had not been deliberately and unfairly withheld. 11. Bearing in mind that the amount of Rs. Finally, it was contended that Brijkishore was not a necessary and material witness and that at any rate he had not been deliberately and unfairly withheld. 11. Bearing in mind that the amount of Rs. 150/- having been recovered from the possession of the accused and having regard to the presumption under sec. 4 of the Prevention of Corruption Act, it will be convenient to first take up the defence evidence to determine whether the defence has succeeded in effectively rebutting the presumption to be raised under sec. 4 of the Act. The main evidence in this case is of the accused himself. The accused has admitted that Ramsarup was not his friend that he had not known him from before from 3rd January, 1962. It being so, I agree with the Special Judge that Ramsarup could never have thought of asking Jaisingh to do his personal work and carry money from him for his brother-in-law. Jaisingh has further stated that when handing over money to him Ramsarup had stated that he would be going to Ajmer. In his statement he is not supported by other witnesses. The trial Judge relied upon this circumstance for rejecting his testimony. The most important circumstance against the accused is that he omitted to mention at the time of recovery that the amount had been handed over to him by Ramsarup for being paid to Ramprasad at Sawar. This omission on the part of the accused to state at the time of recovery clearly indicates that his subsequent version is an afterthought. Mohanlal PW/6, Ramsarup PW/4, Sampatlal PW/2 and Gurubuxsingh PW/5 are all unanimous in their statements that the accused did not state at the time of the recovery of the amount from him that the money was handed over to him by Ramsarup not as a bribe but for being paid to his brother-in-law Ramprasad at Sawar. It is true that after the completion of the recovery memo the accused came forward with such a plea. It is not clear as to the precise point of time when this statement was made by the accused. Sampatlal PW/2 states that the statement was made after the completion of the recovery memo. Motilal P. W/6 states that the statement was made at the Dak Bungalow after the completion of the recovery memo and after he arrived at the Dak Bungalow. Sampatlal PW/2 states that the statement was made after the completion of the recovery memo. Motilal P. W/6 states that the statement was made at the Dak Bungalow after the completion of the recovery memo and after he arrived at the Dak Bungalow. The learned counsel emphasised the discrepancy between the statements of Sampatlal P. W/2 and Mohanlal P. W/6. The discrepancy, in my opinion, is entirely immaterial and does not in any way affect the conclusion that the accused did not come forward with the plea which he subsequently took at the time of the recovery of the bribe money. The learned Judge, in view of the various considerations, the last one being the most important and crucial one, rightly rejected the story put forward by the accused. 12. Dealing with the evidence of the other defence witnesses, namely, Ram Bharose DW/2, Ladakmal DW/3 and Girwar Singh DW/4, the learned Judge gave the following reasons for rejecting their evidence:— 1. Ram Bharose DW/2 stated that he had gone to Harirams hotel. Ladak Mal DW/3 and Girwarsingh DW/4 no doubt stated that they had gone thereto realise their dues from the Tehsil employees. The learned Judge was not impressed by this explanation of the witnesses for their being at the hotel of Hariram. 2. The learned Judge pointed out a few discrepancies also in the statements of these witnesses. 1. According to Ram Bharose DW/2 it was Brij Kishore who had ordered for three cups of tea whereas, according to Ladakmal DW/3 and Girwarsingh DW/4, Ramsarup had ordered for the tea. 2. Ram Bharose stated that he was taking tea at the hotel when Ladakmal and Girwarsingh reached there. Ladakmal, however, stated that Ram Bharose did not take any tea in his presence. 13. A few other discrepancies were also pointed out. The learned counsel argued that the discrepancies pointed out in the statements of the defence witnesses are not very material. He also contended that the presence of the defence witnesses at the hotel cannot be said to be improper or unnatural. 14. I have given my careful consideration to the evidence of these witnesses. The learned counsel argued that the discrepancies pointed out in the statements of the defence witnesses are not very material. He also contended that the presence of the defence witnesses at the hotel cannot be said to be improper or unnatural. 14. I have given my careful consideration to the evidence of these witnesses. Apart from the discrepancies in their statements noticed by the Special Judge and the reasons given by the Special Judge the main ground for rejecting their evidence is that the defence story that Ram Sarup a stranger to the accused would hand over an amount of Rs. 150/-to him to be taken and paid over to his brother-in-law Ram Prasad who was arrested by the accused does not appear to be natural and convincing. This mode of remittance of money does not appeal to me at all. It may be stated at this stage that it is not possible to examine the credibility of the defence evidence apart from the prosecution evidence. The two conflicting sets of evidence have to be considered together and appraised in a proper manner. 15. This brings me to the prosecution evidence. The main witness is Ram Sarup. The trial Judge has considered him as a reliable witness. The learned counsel for the defence contended that as the accused had arrested his brother-in-law Ram Prasad be was interested against the accused and had the motive to falsely implicate him. It was also pointed out that at any rate he was a partisan witness and his evidence requires some corroboration for sustaining the conviction of the appellant. No doubt, Ram Sarup is a partisan witness and that his evidence has to be examined cautiously and with care but it cannot be assumed or expected that he would go to the extent of taking all steps towards a trap on this ground. The story given by him besides being natural and convincing has been corroborated in various material particulars. With regard to the incident of 5th, he is corroborated by the evidence of Ram Prasad. His statement also receives corroboration from his conduct in approaching the Superintendent of Police in the Anti Corruption Department and submitting the report Ex. P. 5. His statement that the accused arrived at Kekri On 8th receives assurance from the fact that the information was conveyed by him to Motilal Dabi PW. His statement also receives corroboration from his conduct in approaching the Superintendent of Police in the Anti Corruption Department and submitting the report Ex. P. 5. His statement that the accused arrived at Kekri On 8th receives assurance from the fact that the information was conveyed by him to Motilal Dabi PW. 6 who made a note to that effect in Ex. P. 5. His statement is further corroborated by the fact that the accused arrived at Kekri at 3 p.m. as was conveyed by him to Motilal Dabi. Besides, the three other witnesses namely, Sampatlal PW. 2 Gurubuxsingh PW. 5 and Motilal PW. 6 saw the accused and Ram Sarup together in the court premises. Two of them also depose that the investigation file was also shown by the accused to Ram Sarup. 16. The learned counsel pointed out some discrepancies in the statements of Sampatlal PW. 2j, Gurubuxsingh PW. 5 and Motilal Dabi PW. 6 but in my opinion, they are not material. Ignoring those discrepancies the statement of Ram Sarup is corroborated by the evidence of those witnesses. 17. Lastly, the recovery evidence provides further corroboration to the prosecution case. It may be mentioned here that the explanation of the accused with regard to the manner in which he came into possession of the money cannot be accepted, and Cannot rebut the presumption under sec. 4 of the Prevention of Corruption Act. On an overall consideration of the totality of the circumstances of the case and matching prosecution evidence and defence evidence together, I have no hesitation in agreeing with the Special Judge that the evidence is acceptable and that the defence evidence deserves to be rejected. 18. Coming to the remaining argument, I first take up the one relating to the support drawn by the Special Judge for his conclusion from the conduct of the accused. It is true that the conduct as such was not put specifically to the accused in his examination under sec. 342, Criminal P.C. and the accused thus had no opportunity to offer his explanation. There is some force in the grievance made by the learned counsel in this behalf and I feel inclined to think that the alleged conduct of the accused should not be used against him. Exclusion of this circumstance however makes no substantial difference so far as the finding of the guilt of the accused is concerned. There is some force in the grievance made by the learned counsel in this behalf and I feel inclined to think that the alleged conduct of the accused should not be used against him. Exclusion of this circumstance however makes no substantial difference so far as the finding of the guilt of the accused is concerned. That finding principally rests and can rest upon (i) direct prosecution evidence of Ram Sarup and Ram Prasad, (ii) corroboration provided by other witnesses, and (iii) the recovery evidence. The argument of the learned counsel does not advance the defence case in any appreciable manner. 19. Turning to the observations of the learned Special Judge with regard to the case diaries, the learned Judge emphasised that the case diaries were not with the investigation file when it was brought to Kekri on 9th and that the explanation of the accused in this behalf is not acceptable. He also emphasised that although the police regulations require that the diary of a particular day should be sent to the C.O. the same day, diaries Ex.D. 1 to Ex.D. 4 do not appear to have been sent to the C.O. the same day. From these, he concluded that the original diaries from 2.1.1902 to 5.1.1962 have been replaced. The learned counsel argues that the circumstances relied upon by the Special Judge for the finding do not necessarily justify the finding. I do not enter into this controversy. These observations were made in connection with the defence argument that the accused was not proceeding against Radhey Shyam and so there could be no question of arresting her. The learned Judge appeared to entertain a doubt that there might have been some thing against Radhey Shyam in the case diaries from 2.1.1962 to 5.1.1962 and that is why they were not taken to Kekri along with investigation file on 9th. The Special Judge however did not base rejection of the defence suggestion only on this reasoning. On the other hand, he stated "Assuming for a amount that in the case diary there was no incriminating evidence against Radhey Shyam, there was nothing lor the accused not to give a threat that he would arrest Radhey Shyam as she was connected with the theft and thereby extract money on such pretext. Cases are common where money is extracted by threats of arresting female members of the family. Cases are common where money is extracted by threats of arresting female members of the family. So, it did not make any difference whether there was any material in the investigation file for arresting Radhey Shyam. The material fact is whether the accused threatened to arrest Radhey Shyam. and did not do so when promised illegal gratification and was later paid Rs. 150/- for it. For this, as already stated there is ample proof. The contention of the learned counsel therefore merits no serious consideration. 20. As regards the argument based on non-production of Brij Kishore, it will be useful to state the following facts. 21. The prosecution case at no stage was that Ram Sarup paid the bribe in the presence of Brij Kishore. Ram Sarup himself does not say so. Neither Motilal Dabi nor Sampatlal says so. Only one motbir Gurubuxsingh refers to his presence. The seizure memo prepared at the time of recovery of currency notes also makes no mention nor Brij Kishore was cited as a prosecution witness. The defence has sought to establish the presence of Brij Kishore. In this back ground, non-production of Brij Kishore is not of great consequence and cannot affect the persuasiveness of the evidence of the prosecution. The prosecution cannot be said to have deliberately and unfairly withheld him. The argument deserves to be rejected. In the result, I must observe that the arguments of the learned counsel though thorough, able and pointed, fail to persuade me to interfere with the conclusion of the Special Judge. 22. There is thus no force in this appeal which is hereby dismissed. 23. The accused is on bail. The District Magistrate, Tonk will cause his arrest and send him to jail to undergo substantive sentences awarded by the trial court and maintained by this Court. 24. Mr. Bhargava prays for leave to appeal to the Supreme Court. The prayer for leave to appeal is rejected.