JUDGMENT 1. - This appeal is directed against the Judgment dated May 8, 1975 of the Special Judge, Rajasthan, Jaipur City, convicting the appellant under section 161 of the Indian Penal Code, and section 5 (1) (d), read with section 5 (2) Prevention of Corruption Act, 1947, and sentencing him, respectively, to rigorous imprisonment for one year and a fine of Rs 200/- or, in default, further rigorous imprisonment for three months, and rigorous imprisonment for one year and a fine of Rs. 500/- or, in default, further rigorous imprisonment for four months. The substantive sentences of imprisonment were ordered to run concurrently. 2. The appellant, Dr. K.S. Walia, was functioning as a public servant, to wit a Rajasthan State Government Medical Officer, in charge of the Primary Health, Centre, Malpura District, Tonk (for short the P. H. C. Malpura) at the material time. The complainant Tarif Singh (P. W. 2) was a Central Government employee, posted at that time as a mechanic in the Sheep and Wool Research Centre, Abika Nagar. The appellant was one of the authorised medical attendants in respect of Tarif Singh On July 15, 1970, Tarif Singh consulted the appellant for numbness in his fingers. The case of the prosecution is that Tarif Singh consulted the appellant. At the P. H, C. Malpura during hospital hours (5.30 p.m.) and as such the appellant was not entitled to charge any consolation fees from the patient. On the other hand, the plea in defence 1 is that Tarif Singh consulted the appellant at the latter's residence on the first floor of the P. H. C, Malpura on July 15th 1970. At about 4.30 p.m. and as such the appellant was entitled to charge Rs. 5/- as consolation fee from Tarif Singh. 3. According to the prosecution, the appellant issued the prescription slip, Ex. P. 2, to Tarif Singh at the P. H. C. Malpura on July 15th, 1970. At about 5.30 p.m. immediately on examining, him for the first time in the P. H. C. itself. The plea in defence is that the appellant examined this patient for the first time earlier that evening at his residence at about 4 30 p.m. and simultaneously issued the prescription slip, Ex. P. 3, to the consolation. 4. At about 5.30 p.m. immediately on examining, him for the first time in the P. H. C. itself. The plea in defence is that the appellant examined this patient for the first time earlier that evening at his residence at about 4 30 p.m. and simultaneously issued the prescription slip, Ex. P. 3, to the consolation. 4. The prosecution story goes that Tarif Singh made a couple of visits to the appellant subsequently and requested him to give the essentiality certificate to enable him to claim reimbursement for the expenditure incurred by him on the purchase of medicine for treatment of the illness diagnosed by the appellant, vide prescription slip, Ex. P. 2 The appellant demanded Rs. 5/- as illegal gratification for issuing the essentiality certificate, assuring Tarif Singh. That, if he paid, he would get a receipt to enable him to claim reimbursement from the Central Government for this amount as well. The appellant bluntly told Tarif Singh that if he wanted the essentiality certificate he would have to pay Rs. 5/- as demanded by the appellant. 5. It is further alleged that, thus driven to the wall, Tarif Singh decided to get the appellant entrapped. He contacted the Superintendent of Police, Special Police Establishment. Jaipur on September 12, 1970 and made a written complaint, Ex. P 5 to that officer on the even date. The complaint to the extent it is material, may be reproduced here as under : "Dr. K. S. Walia is the incharge Doctor in the Primary Health Centre, Malpura. He is in habit of charging false consultation fees when the treatment is done at the Government Dispensary. He will not grant essentiality certificate unless he is paid Rs. 5/- as consultation fee on treatment which has been taken in the Government Dispensary. He had compelled several times during the month from January to April, 70 to pay him the consultation fee of Rs. 5/- each time, he granted me the essentiality certificate : when he was never consulted by me at his consulting room or at my residence. When rupees 5/- are paid to him, he tears of the prescription chit issued by him from the Dispensary and replaces it by fresh prescription in the back date showing that the prescription was taken at his consulting room and then grants the essentiality certificate certifying that he has charged Rs. 5/- as consultation fee. When rupees 5/- are paid to him, he tears of the prescription chit issued by him from the Dispensary and replaces it by fresh prescription in the back date showing that the prescription was taken at his consulting room and then grants the essentiality certificate certifying that he has charged Rs. 5/- as consultation fee. On 15-7-70 I consulted him in the Dispensary in the evening. He issued a prescription prescribing Neurobion injection for the disease. This prescription was entered in Sr. No. at 17355 in the Register maintained in the hospital by the compounder. I purchased the injection from Jamar Medical Store, Malpura for Rs. 15-60 under Cash Memo No. 3228 dated 15-7-70. The chemist also wrote the Sr. No. of the prescription in the cash memo. After completion of treatment I requested the doctor to grant me the E. C. which I had taken, He refused me to grant the E. C. and demanded Rs. 5/- from me. I told him that the treatment was taken in the hospital and showed him the hospital prescription. He told me that I will have to pay the money otherwise he would not grant the E. C. He also told me that I should not worry because he will mention this amount in the E. C. and that I will get that back from the Department. His claiming of Rs. 5/- is wrong and false. I am not in favour of this and hence want to get him caught red-handed. Kindly take necessary action. I submit the E. C., the cash memo and prescription with this application. 6. This complaint was assigned to P. D. Ajmera (P.W.8) a Deputy Superintendent of Police (S.P.E.) for necessary action on it. Ajmera contacted Tarif Singh at Malpura on September 13, 1970, and advise the latter to contact him on September 14, morning, if the appellant still persisted in making the illegal demand of Rs. 5/- for issuing the essentiality certificate. Tarif Singh contacted Ajmera on September 14, at about 10 A. M. Ajmera called two Motbir witnesses, namely Bhanu Prakash Sharma (P.W.5) and M.R. Ansari (P.W. 6) to witness the proceedings of this trap. He applied phenolphathelin powder to a five rupee currency note and returned it to Tarif Singh with instructions to give it to the appellant on demand. Prescription slip, Ex. He applied phenolphathelin powder to a five rupee currency note and returned it to Tarif Singh with instructions to give it to the appellant on demand. Prescription slip, Ex. P 2, cash memo Ex P 1, essentiality certificate, Ex P. 7A and Ex. P. 73 were also given to Tarif Singh for verification and signatures etc. by the appellant. Bhanu Parkash Sharma was advised to stay close to Tarif Singh at the time of giving of the powdered currency note by him to the appellant and hear the conversation between the two. It is alleged that before sending Tarif Singh to the P.H.C , Malpura along with Bhanu Parkash Sharma, Ajmera made sure, by mutual frisking of persons, that none of the members of the raid party carried any currency note or document except the powdered currency note and the three aforementioned documents carried by Tarif Singh, 7. There at the P.H.C., Malpura, Tarif Singh gave the appellant the ^ documents and requested him to verify and sign the essentiality certificate, Bhanu Parkash Sharma had, in the mean time, occupied a seat in the appellant's room as if he was one of the patients awaiting his turn for medical consultation. The appellant told Tarif Singh that he had already made it clear to him that he would not verify and sign the certificate unless he paid him his consultation fee of Rs. 5/- Tarif Singh protested mildly telling the appellant that since he had consulted him in the hospital itself he was not liable to pay any fees and that the appellant was exploiting Tarif Singh's helplessness in the matter. It is alleged that the appellant then told Tarif Singh that if the latter paid Rs. 5/- the appellant would tear out and destroy the hospital slip, Ex, P 2 and issue a fresh slip in its place for Tarif Singh's record, Tarif Singh there upon gave the powdered note to the appellant. He also gave the essentiality certificate to the appellant for his signatures by way of verification in the column prescribed for the purpose. The cash memo Ex. P 1 and the slip Ex P2 were also given to the appellant. The appellant issued a fresh slip Ex. P 3 and annexed it to the essentiality certificate and signed the latter. He tore out the slip Ex, P/2 and threw it on the ground. The cash memo Ex. P 1 and the slip Ex P2 were also given to the appellant. The appellant issued a fresh slip Ex. P 3 and annexed it to the essentiality certificate and signed the latter. He tore out the slip Ex, P/2 and threw it on the ground. He also annexed the cash memo Ex P/1 to the essentiality certificate and gave the dossier consisting of Ex P/1, P/3, P/7-A and P/7B to Tarif Singh. Bhanu Parkash Sharma collected the pieces of Ex. P/2 from the ground. It is alleged that on receipt of the prearranged signal, Ajmera and the other members of the raid party entered the appellant's room. Ajmera asked the appellant to produce the five rupee note which he had accepted from Tarif Singh as illegal gratification. The appellant denied this fact and instead told Ajmera that he had accepted Rs. 5/- from Tarif Singh on account of consultation fees which was due from him since July 15th, 1970. Tarif Singh denied that he had been owing any amount to the appellant as fees. He asserted that he had consulted him in the P. H. C., Malpura and not at his residence. The powdered note was recovered from the appellant. Bhanu Parkash Sharma produced the torn pieces of Ex. P/2 which he had earlier collected from the ground. These were taken in to possession vide memo Ex P/8 Tarif Singh produced the dossier consisting of the essentiality certificate Ex, P/7A and P/7B, cash memo Ex P/l and slip Ex P/3. These documents were taken into possession vide memo Ex. P/9. 8. The prosecution examined, among others, Mool Chand, Tarif Singh, Manak Chand, Bhanu Parkash Sharma, M. R. Ansari and P. D. Ajmera as witnesses in support of its case. It also produced documents, Ex P/1 to Ex P/17 in evidence, We may briefly go into this evidence here. Mool Chand (PW 1) is a chemist of Malpura who deposed that his muneem, Hari Narain, had issued the cash memo Ex P/1 to Tarif Singh in token of the sale of medicine on the basis of the prescription slip Ex P/2 issued by the accused. He claimed that the sale of medicine on the basis of Ex P/2 was made in his presence. 9. He claimed that the sale of medicine on the basis of Ex P/2 was made in his presence. 9. Tarif Singh (PW2) deposed that he had consulted the accused in the hospital and not at his residence, that the accused had issued Ex P/2 on July 15.1970 and Ex P/3 on September 14, 1970, that the accused had torn out Ex P/2 at the time of signing the essentiality certificate at the P. H. C., Malpura on September 14, 1970, and, that since he had consulted the accused in the hospital he had not been owing any money to the accused by way of consultation fees. 10. Manak Chand (P. W. 3) a compounder in the P.H.C., Malpura at the material time, deposed that Tarif Singh had visited P.H.C., Malpura on July 15, 1970, that he had issued to him the prescription slip Ex P/2 that day and that he had also visited the P.H.C. on July 16, 17, 19, and 20 for getting injection administered. He further stated in cross-examination by the defence counsel that before he had issued Ex P/2 in the hospital he had seen. Tarif Singh consulting the accused at the latter's residence upstairs and the accuse issuing to Tarif Singh the prescription slip Ex P/3 at that time. 11. Bhanu Parkash Sharma (PW 6) one of the Motbir witnesses, stated that he had accompanied the decoy, Tarif Singh, to the room of the accused on September 14,1970, and heard the conversation between the two before Tarif Singh had paid Rs, 5/- to the accused. According to him, the accused demanded payment of his fees and Tarif Singh paid him Rs. 5/- in that behalf. He further stated that he had picked up the torn pieces of Ex P. 2 from the ground from near the feet of Tarif Singh and given them to P. D. Ajmera. 12. M. R. Ansari (P. W. 6) another motbir stated that he had been waiting outside along with members of the raid party at the time when Tarif Singh had paid Rs. 5/- to the accused. He was not questioned as to who tore out Ex. P 2 and from where its pieces were collected. 13. P. D. Ajmera, the leader of the raid party gave hearsay evidence about Ex. 5/- to the accused. He was not questioned as to who tore out Ex. P 2 and from where its pieces were collected. 13. P. D. Ajmera, the leader of the raid party gave hearsay evidence about Ex. P, 2 in asmuch as he deposed that Bhanu Parkash Sharma had told him that the accused had torn it and thrown the pieces on the ground, 14. As for the documentary evidence produced by the prosecution, mention may be made here of the search memo, Ex. P. 6 which would show that before the decoy was sent into the room of the accused on September 14,1970, he did not carry with him any document, other than the prescription slip (Ex. P. 2), the essentiality certificate (Ex. P. 7A and Ex. P. 7-B) and the powdered currency note of Rs. 5/-. In other words, according to the search memo, Ex. P/6 the decoy did not carry Ex. P/3 with him at that time. This would show, according to the prosecution, that Ex P/3 was prepared by the accused in his room on September 14, 1970 when he tore Ex. P. 2 and threw it on the floor. 15. In his statement under section 313 Cr. P. C. the accused maintained that Tarif Singh had consulted him at his residence on July 15, 1970, at about 4.30 P. M. and that he had issued the prescription Ex. P. 3, to Tarif Singh at his residence. Explaining the issue of prescription slip Ex. P/2, he pleaded that since injections had to he administered and a massage oil which was available in the hospital had to be given Ex. P. 2, was issued to Tarif Singh when he came to the hospital later that evening for administration of the injection. He further pleaded that Tarif Singh had promised at his residence on July 15, 1970, that he would pay his fees of Rs. 5/- later at the time of verification of the essentiality certificate, and that the amount of Rs. 5/- paid by Tarif Singh to him on September 14, 1970, was the amount of the fees which was outstanding since July 15. 16. The accused examined a number of witnesses in defence. Chand Bihari (DW 5), an advocate, is the most important among them. 5/- paid by Tarif Singh to him on September 14, 1970, was the amount of the fees which was outstanding since July 15. 16. The accused examined a number of witnesses in defence. Chand Bihari (DW 5), an advocate, is the most important among them. He deposed that he had been present with the accused at the accused's residence on July 15, 1970, at about 5. P.M. when Tarif Singh came there, consulted the accused and obtained the prescription. Ex. P. 3, from him, promising to pay the doctor's fees later at the time of verification of the essentiality certificate. He further stated that the accused had advised Tarif Singh to get another slip from him later that evening when he would be on duty in the hospital so that the hospital slip could be helpful to him for getting the injection administered there. 17. It will thus be seen that the accused-appellant admits the payment of Rs. 5/- by Tarif Singh to him on September 14, 1970 His defence is that he accepted this amount towards consultation fees which Tarif Singh was owing to him since July 15. The only point which falls for determination in this appeal, therefore, is whether Tarif Singh had consulted the appellant at the latter's residence and obtained the slip, Ex. P. 3 from him there on July 15, 1970. If so, the plea in defence will have to be upheld, and not otherwise. Connected with the same point are two subsidiary points which may be stated as follows : (a) Whether Tarif Singh had purchased the medicine and obtained the cash memo, Ex P/1 on the basis of Ex. P. 2.? (b) Whether Ex. P. 3 was not with Tarif Singh before he entered the room of the appellant on September 14, 1970? If the answer to (a) be in the affirmative and to (b) in the negative, such answers would knock the bottom out of the defence version, and, in that case, the conclusion would be irresistible that Tarif Singh did not consult the appellant at his residence on July 15, 1970, and that Ex, P. 3 was prepared by the appellant on September 14, 1970, at the time of signing the essentiality certificate. Let us therefore proceed to examine the evidence for answers to these points. 18. Let us therefore proceed to examine the evidence for answers to these points. 18. Now, as to the main point, we have, on one side, the word of the decoy, Tarif Singh, who says he did not consulted the appellant at his residence. On the other side, we have the evidence of Manak Chand, a witness produced by the prosecution, and Chand Bihari. one of the defence witnesses. Both of them have supported the defence version that Tarif Singh consulted the appellant at his residence and obtained the slip Ex. P. 3 there on July 15, 1970. The evidence of the decoy obviously suffers from the defect of the evidence of an interested and biased person. Manak Chand, a witness of the prosecution, is supporting the defence version on this point. The mere fact that the trial Court allowed the prosecution to cross-examine this witness after he had supported the defence version in the course of his cross-examination by the defence counsel is no ground for rejecting his testimony out of hand. And, then, his testimony is corroborated by such a responsible person as DW. Chand Bihari who is a lawyer by profession and was holding the office of Zila Pramukh at the material time. Chand Bihari explained that July 15, being the birthday of his son, Surrindar, he remembers his visit to the doctor, because he had not been keeping well for quilt some time and had gone to the doctor to ascertain if it would be safe for him to eat sweet-meats at the birth-day feast. 19. Turning now to the subsidiary points, the prosecution has examined Mool Chand (P.W. 1) a partner of Jamar Medical Stores, Malpura, who stated that the cash-memo. Ex P/1, pertains to his shop and that it had been issued on the basis of the prescription slip Ex. P/2. He further stated that Ex. P/1 had been issued by his employee, Hari Narain, and that the medicine in question had been sold, vide Ex. P. 1 in his presence. Now it is not clear as to why in preference to the best evidence of Hari Narain who sold the medicine and issued the cash memo Ex. P/1, the prosecution chose to produce Mool Chand who could vouch for no better than that the medicine had been sold and Ex. P/1 had been issued by Hari Narain in his presence. Now it is not clear as to why in preference to the best evidence of Hari Narain who sold the medicine and issued the cash memo Ex. P/1, the prosecution chose to produce Mool Chand who could vouch for no better than that the medicine had been sold and Ex. P/1 had been issued by Hari Narain in his presence. The non-production of such a material witness as Hari Narain raises an adverse inference against the prosecution and renders the evidence of Mool Chand suspect. The cash memo could have as well been issued on the basis of Ex P/3, and the number "17355" which is found written on the left top corner of the cash memo, could have been written there some time after Tarif Singh had obtained the prescription slip Ex. P. 2 from the hospital after he had already obtained the slip Ex P. 3 from the residence of the appellant on July 15, 1970. 20. As to subsidiary point (b) there is no satisfactory and reliable evidence on the record to prove that Tarif Singh had been subjected to any search of his person lo exclude the possibility of his carrying Ex P. 3 with him before entering the room of the appellant on September 14, 1970. None of the motbir witnesses had supported the prosecution case regarding the alleged search. Bhanu Parkash Sharma says he cannot recall whether any one had searched the person of Tarif Singh or not, and whether any search memo had been prepared or not. M.R. Ansari was not questioned about the alleged search. Tarif Singh says that Ajmera searched his person and that no other member of the raid party was subjected to such a search. Ajmera on the other hand would have us believe that all the members of the raid party had subjected on another to personal search. Thus, Ajmera and Tarif Singh have given contradictory evidence on the question of search. The motbir witnesses have not supported the prosecution case in that behalf. One cannot therefore rule out the possibility of the slip Ex. P. 3 being already in possession of the decoy before he entered the room of the appellant on September 14, 1970. 21. Lastly, I may also deal with the evidence as to the tearing of the slip. Ex. P, 2 Tarif Singh says that the appellant tore it after he had prepared Ex. P. 3 being already in possession of the decoy before he entered the room of the appellant on September 14, 1970. 21. Lastly, I may also deal with the evidence as to the tearing of the slip. Ex. P, 2 Tarif Singh says that the appellant tore it after he had prepared Ex. P. 3 on September 14, 1970. The evidence on record does not corroborate his statement in that behalf. On the contrary, the evidence indicates otherwise. Bhanu Prakash Sharma, one of the motbir witnesses, who was admittedly present in the room of the appellant at the material time, was not examined by the prosecution on the point as to who tore out Ex, P. 2. He deposed that he had picked up the torn pieces, of Ex P. 2 lying on the floor at the feet of Tarif Singh. This would indicate that Tarif Singh had torn out Ex. P. 2 and thrown the pieces on the floor at his own feet. Had the appellant torn this document, he would have thrown the pieces in the waste paper basket or on the floor at his own feet instead of throwing them across the table at the feet of the decoy. Bhanwar Lal, a hospital clerk, who claims to have been present in the doctor's room at that time supported the defence version that the decoy himself had torn out Ex. P. 2 and thrown the pieces on the floor where he himself was 22. For all these reasons, I am of the considered opinion that the prosecution has failed to prove the charges framed against the appellant beyond reasonable doubt. I would accordingly allow this appeal, set aside the impugned order of conviction and sentence and instead acquit the appellant. He is already on bail. His bail bonds are hereby discharged. Sd/- K.S. Sidhu. J.Appeal allowed. *******