JUDGMENT Chandra Pal Singh. J.-1. The appellant Kailash Bais, a Mining Officer in the Collector ate, Indore, and as such a public servant was charged with and tried successfully for the offences punishable under section 161 Indian Penal Code and section 5 (1) (d) read with section 5 (2) of tae Prevention of Corruption Act for accepting Rs 201/- as illegal gratification as a motive for letting Manohar (P.W. 7) secure a permit enabling him to collect boulders and small pieces of stone from a Government quarry, before the Special Judge, Indore (in Special Case No.2 of 1974), who bas sentenced him to rigorous imprisonment for two years with Rs. 2500/- fine on each count failing the payment of each of which be is further to suffer rigorous imprisonment for six months; the substantive sentences are to run concurrently. He appeals. 2. Manohar (PW 7) on 23-12-1971 bad submitted an application (Ex. p. 3) to the appellant the Mining Officer requesting for granting him permit to get 100 trucks of boulders (small and big) from Sanavadia quarry for enabling him to build a private road from the main road upto his well in village Dudbia. He (Manobar-PW 7) repeated his similar request by his application (Ex P. 4) of 10-1-1972, and, yet another (Ex. P. 2) of 22-1-1972. One of his applications was accompanied by also the recommendation of the Sarpanch of Gram Panchayat, Dudhia contained in the document (Ex p. 3-A). Manohar however could not succeed in getting any permit from the Additional Collector, Indore, who on recommendation of appellant used to issue one. 3. This led Manohar on 22-1-1972 to approach the appellant, who demanded Rs. 500/- as illegal gratification for recommending his case to the Additional Collector. Manohar being unable co pay this much amount ultimately agreed to part with Rs. 201/- after two days at Jabaj Mahal Hotel between 1 and 2 p. m. It was in this context that on 25-1-1972 at 9 a. m. he lodged a written report (Ex. p. 58) before Nirbhaysingh. Deputy Superintendent of Police, Special Police Establishment at his quarters at Mahesh Guard Lines, Indore Nirbhaysingh directed Manohar to come to his office later on at 11 a. m. That being done Nirbhaysingh (P.W. 14) in the presence of Bhaskar Moghe (PW 13) and Gordhanlal (D W 5) took two bank notes of Rs. p. 58) before Nirbhaysingh. Deputy Superintendent of Police, Special Police Establishment at his quarters at Mahesh Guard Lines, Indore Nirbhaysingh directed Manohar to come to his office later on at 11 a. m. That being done Nirbhaysingh (P.W. 14) in the presence of Bhaskar Moghe (PW 13) and Gordhanlal (D W 5) took two bank notes of Rs. 100/- each and a rupee bank note from Manohar marked them and after demonstrating the reaction of phenolpthalein powder in a solution of sodium carbonate turning pink, got those bank notes treated with phenolpthalein powder, making Manohar put them in the right hand pocket of his jackiet instructing him that after he had parted with the money at the appointed place, he would indicate the acceptance of the money by the appellant by wining his face with his handkerchief. Nirbhaysingh (PW 14) instructed the two witnesses Bhaskar Moghe (PW 13) and Gordhanlal (DW5) to keep close to Manobar and the appellant to hear their talks and witness the giving and taking of the money. Evidencing this transaction, Ex. p 59 was prepaired. 4. The party consisting of Nirbhaysingh (PW 14), the two witnesses and otters (including one Rana Saheb and one Pare Saheb) set out to Jahaj Mahal Hotel. In the meantime Manobar went to the Office of the appellant. Not finding him there and being told by a clerk that the appellant had gone to Raj Mohalla, Manohar (PW 7) went there and finding the appellant told him that he bad arranged for the money. Manohar (PW 7) and the appellant then in an auto-rickshaw travelled to Jahaj Mahal Hotel where in front of the counter of that hotel while sitting on a bench Manohar saying that let his work be done and the appellant assuring him of his work (the issuing of permit) being done within an hour, gave those bank notes to the appellant, who counting them put them in the right side pockiet of his trousers. Manohar went outside in the verandah and wiped his face with his handkerchief. Immediately after Nirbhaysingh, other Members of the party and Gulam Hyder (PW 12) surrounded the appellant, who protested saying that he had been deceitfully entrapped. Those very bank notes were seized from him. The appellant' band on being immersed in the solution of sodium carbonate turned that solution pink, Some of the documents seized during investigation (particularly documents Ex. Immediately after Nirbhaysingh, other Members of the party and Gulam Hyder (PW 12) surrounded the appellant, who protested saying that he had been deceitfully entrapped. Those very bank notes were seized from him. The appellant' band on being immersed in the solution of sodium carbonate turned that solution pink, Some of the documents seized during investigation (particularly documents Ex. p.2, p.3 and p.4) were sent to Navinchandra Deshpande (PW 1), the Additional State Examiner of questioned documents but that examination is not significant as the appellant himself admitted those and other necessary documents having his signatures and also the endorsement on some of them. The State sanctioned the prosecution of the appellant. 5. On these facts when charged with and tried for the offence punishable under section 161 Indian Penal Code and section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act, though the appellant admitted that the money (Rs. 201/- in three bank notes) had been seized from him which be bad earlier taken from Manohar (P.W.7) he explained that he had only in June 1970 taken over the charge of his duty as Mining Officer at Indore. He came to know that some people including Yunus, Latif, Siddique, Ayub, Illias S/o Sheikh Jamil were busy in illegal mining operations. He with the help of his staff got 103 cases under sections 247 (7) of the MP. Land Revenue Code instituted against them. He got the contract of Nisar, for whom Yunus used to work regarding Sanavadia Quarry, cancelled and got it reauctioned. He got the whole area surveyed and assessed at Rs. 40000/. The prosecution for illegal Mining in which Rs, 15000/- penalty was proposed was also launched. Similarly he was responsible for several legal actions being taken against those persons. He, therefore claimed that those persons, particularly Yunus of them whose servant is Manohar alias Mannu (PW 7) by setting a trap had falsely implicated him. 6. He further explained that about 2. 1/2 months before the incident Manohar (PW 7) had started visiting his house telling him (the appellant) that he would be instrumental in some documents belonging to Yunus given to him (the appellant) through his Munim Baoulal (DW 1), to make the cases instituted against Yunus strong. He had related about this (proposed) arrangement to one Mr. Anil Vivrekar and Sabirali (DW 6) his Mining Inspector. 7. He had related about this (proposed) arrangement to one Mr. Anil Vivrekar and Sabirali (DW 6) his Mining Inspector. 7. As regards the happenings on 25-1-1972 he explained that at 11.30 a. m. he was told in the Collectorate to arrange for 6 trucks for the Republic Day, the day following. He, therefore, in the company of one Inchulkar (DW 7) his Mining Inspector went to Raj Mohalla wherefrom he got two trucks sent to the Collectorate. He then went to Palasia where he made Mr. Inchulkar sat in a laden truck to be taken to the Collectorate. While he was returning to his office on his scooter, its gear wire gave way. He, therefore, went to Raj Mohalla to get it repaired at Prakash Auto Repairing Shop, while he was talking with Mr. Ashok Deshmukh (PW 4), Manohar (PW 7) in a rickshaw reached there. Manohar told him that he with great difficulty had persuaded Parashar (alluding to D W 1) to hand over some documents detrimental to Yunus but some advance (money) would have to be paid to him. On the appellant asking him how much he would have to pay, Manohar replied that he (Mr. Parashar DW 1) was to reach Jahaj Mahal Hotel soon and it would be better to talk the matter over there. 8. Consequently be without suspecting any foul play in an auto rickshaw went to Jahaj Mahal Hotel where while passing through the lawn he noticed the Vigilance Officer in plain clothes (alluding to Nirbhaysingh PW 14) along with an Inspector one Mr. Rana (a constituent member of the trap party). He with Manohar went to a corner cabin and after sitting there only for two minutes he came out in the hall and set on a sofa with his back towards the counter. He asked Manohar why Parashar (DW 1) had not come. Thereupon Manohar told him that for the moment let him (Parashar) be paid about Rs. 200/. to which he replied that he had only 20 or 30 rupees (with him) Manohar (PW 7) saying that let him (the appellant) keep his money for the time being which he could pay back lateron, gave Rs. 201/- to him to be paid to Parashar. Counting Rs. 201/- he put that amount in the pocket. 200/. to which he replied that he had only 20 or 30 rupees (with him) Manohar (PW 7) saying that let him (the appellant) keep his money for the time being which he could pay back lateron, gave Rs. 201/- to him to be paid to Parashar. Counting Rs. 201/- he put that amount in the pocket. In the meantime he had ordered for two coffees Manohar saying that he was going out to look for Parasha went away and soon after the vigilance Officer Caught hold of his hand and told him that he had received illegal gratification. He protested that he had been decitefully rapped and that he had received no illegal gratification. Manohar had given him money only saying that money was to be paid to parashar so that he could secure some documents against the contractor Yunus and that he could pay back the borrowed amount to Manohar lateron. Nirbhaysingh (PW 1) told him that he would better give his defence later on. He then went through all the formalities. In support of his defence, he examined seven witnesses. 9. The learned Judge relying mainly upon the evidence of Manohar (PW 7) and the corroborative evidence of other witnesses, particularly Bhaskar Moghe (PW 13) and Nirbhaysingh (PW 14) finding, that the defence and explanation advanced by the appellant were false, convicted and sentenced him as already pointed out. 10. The only question for decision by me is whether the appellant Kailash Bais has been rightly found guilty of the offence charged and rightly sentenced? 11. The position of a witness like Manohar (PW 7) is no better than that of an accomplice. (See: Pannalal Damodar Rathi v. State of Maharashtra AIR 1799 SC 1191). The corroboration in material particulars of such a witness though not as a matter of strict law in view of section 133 of the Evidence act but certainly as matter of prudence and practice considering section 114 illustration (b) of the Indian Evidence Act is necessary. [see R. v. Baskerville (1916) 2 K-B. 658 quoted with approval in Rajeshwar v. State of Rajasthan AIR 1952 SC 541. By corroboration is meant some independent evidence proving or tending to prove not only that the crime has been committed but that the accused has committed it 12. [see R. v. Baskerville (1916) 2 K-B. 658 quoted with approval in Rajeshwar v. State of Rajasthan AIR 1952 SC 541. By corroboration is meant some independent evidence proving or tending to prove not only that the crime has been committed but that the accused has committed it 12. The credibility of a witness depends upon a number of factors like his knowledge of facts, his intelligence, his disinterestedness, his integrity and his veracity. The antecedents, association and character of a witness, therefore, become material and can be exposed in his cross-examination Manohar (PW 7) in his cross examination paragraph 24 has clearly admitted that be bad been convicted under sections 467 and 468 Indian Penal Code and sentenced to rigorous imprisonment for three years for forging documents and depositing less amount in the treasury than he was liable to deposit. Apart from it some prosecutions were still pending against him for robbery and intimidation to kill his victim, at the time of his giving evidence. 13. Even inspite of his denial, it is plain from the evidence of Sabirali (DW 6), a Mining Inspector that Manohar used to visit his office along with one Mohammad Yunus. From the document (Ex. D2), a memorandum which Manohar admits to have signed (See par. 22 of his deposit on) at portion B to B, it clearly appears that Manohar used to work for the said contractor that Manohar used to work for the said contractor Yunus. It also appears from the document (Ex. D1) at portion A to A that Manohar had signed it, Ex D1 is the memorandum seizing 16 truck loads of boulders and 15 truck loads of Gitii belonging to one Nisar Mohammed, The evidence of Virendra (PW 4) contained in para 13 admits of one Yuous working for Nisar. The same is ascertainable also from the documents (Ex. D 31 and D 33), which are receipts for depositing amounts in the treasury by Yunus on behalf of Nisar. (Nisar 'Mohammad is referred to in document Ex D 1) Manohar (PW 7) admit in paragraph 13 that he is known also as a Mannu. It appears from the document (Ex. D3) (though Manohar has denied his signature) that be had made a declaration regarding his working for Yunus, part from the evidence of Virendra (PW 4), it stands established that the appellant had directed a notice (Ex. It appears from the document (Ex. D3) (though Manohar has denied his signature) that be had made a declaration regarding his working for Yunus, part from the evidence of Virendra (PW 4), it stands established that the appellant had directed a notice (Ex. D 5) to Nisar Mohammad calling upon him to explain the violation of conditions of contract regarding Sanavadia Quarry Ex. D. 6 is its reply by the said Nisar. Ex. D 7 is the intervening order passed by the appellant and ultimately after an elaborate procedure ascertainable from (he document (Ex. D 8 to Ex D 25) in the majority of which the appellant had to play, a part, 10 truck loads of Gitti and 10 truck loads of boulders (which during the subsistence of contract were in the control of the said Nisar) pursuant to a public auction vide Ex. D. 26 and D. 27) were confiscated and entrusted to a Suparadar. Both these documents, as proved by Babulal (DW 1), have the signatures of Manohar (PW 7). Mere misdescription or different description of one in a document or a series of documents, provided one's identity is otherwise ascertainable, are not in themselves enough to let one escape one's liability, if by, flowing from such documents. 14. Thus, not only because of Manohar (PW 7) the bribe giver being in no better position than that of an accomplice, but also because of his having his reputable antecedents had above all his almost an identity of interest with his employer Yunus, who used to work on behalf of Nisar, his evidence not only needs corroboration In material particulars but also a very close scrutiny. 15. The law is settled that the presumption under section 4 (1) of the Prevention of Corruption Act cannot be drawn in the case of offence punishable under section 5 (1) (d) read with section 5 (2) of that Act, though with regard to section 161 Indian Penal Code it could be drawn provided it was first proved that the accused was a public servant, that he had obtained gratification, and that gratification was other than his legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, while exercising his official functions, favour or disfavour to the gratification giver. (See Sitaram v. The State of Rajasthan AIR 1975 SC 1432 ) By gratification is meant something which is calculated to satisfy a person' aim, object or desire and such gratification must be of some value, though it may not be estimable in terms of money. It is not restricted to pecuniar gratification. 16. On reading section 114 Indian Evidence Act on the one hand and the presumption raisable under section 161 Indian Penal Code on the other hand particularly in the context of section 3 Indian Evidence Act, the genital burden of proof is still on the prosecution because of the presumption of innocence of the accused, the evidence against whom has to be such as to exclude to a mOial certainty every reasonable doubt of his guilt. It is only after discharging the initial burden of proving that the accused was a public servant and that he had obtained from any person any gratification. that a rebuttable presumption arises with regard to that gratification being other than legal remuneration as a motive or reward for doing or forbearing to do any official act or forbearing to show favour or disfavour to the person. (See Sitaram v. The State of Raj. (supra). It is needless to reiterate that the obtaining of money by the accused alone is not enough it has also to be shown that if was voluntry and in the sence of gratification. It would not be any money that may be received by a public servant unconnected with the purpose of his duties which would suffice. The accepting or obtaining of money within the meaning of section 161 Indian Penal Code is to be in the sense of gratification. In any even if a presumption is to be drawn in a set of particular circumstances against an accused, it is capable of being discharged merely on balance of probabilities or preponderance of evidence. 17. Let us now examine the evidence particularly with regard to the explanation and defence of the appellant which as already seen admits of his having been instrumental in taking Rs. 201 from Manohar at Jahaj Mahal Hotel and immediately thereafter that amount having been seized from him. He was undoubtedly a public servant and the amount of money had not included the part of his legal remuneration or salary, 18. 201 from Manohar at Jahaj Mahal Hotel and immediately thereafter that amount having been seized from him. He was undoubtedly a public servant and the amount of money had not included the part of his legal remuneration or salary, 18. The evidence of Manohar (PW 7) is that the appellant told him that his file (for giving him permit) was complete and that he would have to give Rs. 500. There is no corroboration of either of these facts. Though there are concerned documents Ex, P. 6, P. 7, P. 8 and P. 9, regarding how the matter of granting permit to Manohar was dealt with, no finality had been reached and of course there is no corroboration regarding the appellant demanding Rs. 500 from Manohar (PW 7). Manohars evidence is that it was only on 22-1-1972 that he had given yet another application (Ex. P 2), At that time ht had a talk with the appellant, who had agreed to accept Rs. 201 on 25-1-1972 between 1 and 2 p.m. at Jahaj Mahal Hotel. There is no corroboration of that fact. His conduct also does not show consistency, inasmuch as he had not reported the matter then and there but had awaited till 25-11-1972 when allegedly at 9 a.m. be contrary to the conduct of a reasonable man contacted Narbhaysingh, not in his office, but at his quarters. 19. It is noteworthy that not only from the report contained in the document (Ex. P - 58) and the memo contained in the document (Ex. P•59). but also from the evidence of Manohar (PW 7) himself. it is clear that the appellant himself had selected Jahaj Mahal Hotel where he had directed Manohar to bring him Rs. 201 between 1 and 2 p.m There is no evidence at all that the appellant had reached Jahaj Mahal Hotel at the appointed hour. Instead the evidence of Manohar (PW 7) is that he set out in search of the appellant. He first went to his office. He was not found there. There a clerk told him that be had gone to Raj Mohala Manohar (PW 7) went there and found him the appellant) at the square. Instead the evidence of Manohar (PW 7) is that he set out in search of the appellant. He first went to his office. He was not found there. There a clerk told him that be had gone to Raj Mohala Manohar (PW 7) went there and found him the appellant) at the square. It was, therefore, clearly a case of Manohar setting out for his prey, while the other members of the trap party particularly of them Nirbhay sing (PW 14) who certainly was an interested witness lay in wail for the appellant at Jahaj Mahal Hotel. 20. The explanation of the appellant consistent with the part of the evidence of Manohar himself, remains substantiated by the evidence of Gulshan Joshi, (PW 2), who relates about the task of securing some trucks for the Republic Day, the day following, falling on the appellant. His evidence is that at 1: 30 p.m. Manohar Jat alias Mannu had come to the office and asked about Mr. Bais. He had told him that Mr. Bais had gone to Raj Mohalla. The put of the explanation regarding the repairing of, lambretta, the geer wire of wich had given way is corroborated by Askokkumar (PW. 4). 21. The time appointed for the giving and taking - of money being between 1 and 2. pm. Was also not 'adhered to. Instead the alleged giving having taken place at 4.30 p.m. again indicates that the members of the trap party without calling it a day latest by 2 p.m. kept on waiting for the appellant, patiently till he was actually caught; 22. It had been specified in the document (Ex: P-59) that the money was to he paid to the appellant only on his asking for it. The Panch witnesses where also instructed that they were to remain, close to Manohar and the appellant, and to listen to, their Talks besides watching the giving and taking of the bribe. The, evidence of Manohar is that Rana had his back and Gordhanlal had his face towards them Moghe Sahib (PW 13) was sitting in the cabin which was by the side and behind the counter was standing Nirbhayasingh (PW, 14). He and the appellant were. smoking cigarettes and were talking. Then he went towards the counter and told the appellant that he was going to give money but let his work be done. He and the appellant were. smoking cigarettes and were talking. Then he went towards the counter and told the appellant that he was going to give money but let his work be done. The appellant replied that the work would be done within an hour. Neither of the concerned witnesses for the prosecution and Gordhanlal (DW 5) throws any light on either the appellant asking for money or the talks between Manohar and the appellant before Manohar and the appellant before manohar gave money to him. 23. The choice of Jahaj Mahal Hotel, frequented by all and sundry, and there too a counter (presumably a reception counter) could have the last place suitable for a person accepting illegal gratification. From the evidence of Manohar contained in para 7 it was the appellant, who catching hold of his hand took him to a bench near the counter and made him sit there. They had their backs towards the counter. The appellant was towards his right side In the front there were two benches at a distance of four feet where one Rana Sahib was sitting Moghe Sahib, (PW 13) was sitting in the cabin which was by the side (of the counter and behind the counter was standing Nirbhaysingh (PW 14). The conduct of the appellant without remaining confined to the cabin, in taking Manohar near the collector where there were in close proximity other persons of whom Rana Sahib and particularly Nirbhaysingh (PW 14) as a Vigilance officer were known to the appellant, is indicative of his innocence. No bribe taker in his senses would facilitate his entrapment by exposing himself to all and sundry including his acquaintances and of them too a Vigilance officer, particularly when he had had earlier opportunity of accepting the amount while travelling in rickshaw with Manohar from Raj, Mohalla to hotel. 24. In this context, the explanation given by the accused and referred to in detail in paragraphs S. 6, 7 and 3 is not only plausible but highly probable particularly when it remains corroborated by the witnesses for the defence. It is quite likely that the appellant being an enthusiastic young officer, and keen to set matters right ad launched proceedings against Nisar and Yunus for whom Manohar (PW 7) used to work so that they could not keep on swindling Government of the tune of lacs of rupees. It is quite likely that the appellant being an enthusiastic young officer, and keen to set matters right ad launched proceedings against Nisar and Yunus for whom Manohar (PW 7) used to work so that they could not keep on swindling Government of the tune of lacs of rupees. It is, therefore, not surprising that Yunus in order to take revenge and get the appellate out of his way, through Manohar (PW 7), contrived the appellant's for prosecution under the pretext that he would secure from Babulal Parasher (DW 1), who in fact was in the employment of Yunus, some important documents that could be helpful, in strengthening the prosecution case against Yunus, provided Babulal Parashar (DW 1) was paid Rs. 201 for the time being; and the appellant in good faith, believing that the money which Manohar was lending him was meant for Babulal Parashar (DW 1) innocently put it into the pocket of his trousers later on to be seized from him. It was merely a device to some how entrap the appellant, is further reflected by Manohar (PW 7) moving between 23-12-71 to 22-1-72 a number of applications as if he were in right earnest for securing a permit for constructing a road. Yet immediately after the entrapment of the appellant, he abandoned the project altogether even through be admits that the road could be constructed any time upto the setting in of the rainy reason. Manohar P.W 7’s earnestness was a pretended one is again manifested by his not complaining of the matter to the Additional Collector, who indeed was the person authorised to issue a permit. 25. The Departmental delays commonly known as red-tapism are notorious. Protraction also has its certain advantages. But for the part of the appellant it was not an isolated occasion where he had not recommended the case of Manohar (PW 7) for a permit then and there. He had no example also with regard to another similar matter contained in the document (Ex. P-56) (which was exhibited for a different purpose followed the same protracted procedure. The similar conduct of the appellant, therefore, is indicative of not a pretended procedure being followed with regard to Manohar to extract money from him but his system of working uniformly. 26. In these circumstances, the appellant has been wrongly found guilty of the offences charged and wrongly punished for them. The similar conduct of the appellant, therefore, is indicative of not a pretended procedure being followed with regard to Manohar to extract money from him but his system of working uniformly. 26. In these circumstances, the appellant has been wrongly found guilty of the offences charged and wrongly punished for them. Before 'parting, it would be worthwhile observing that the proper stage for dealing with a witness under section 154 Indian Evidence Act for putting any questions to him which might be otherwise put in cross-examination by the adverse party, is either while that witness being examined in-chief or re-examined. There is no scope for following such a procedure while the witness is in charge of the adversary in the cross, examination. The learned trial Judge has departed from his salutary provision regarding the evidence of Gulm Hyder (PW 12) on 21-10-75 without any indication by the learned counsel for the defence Mr. Khanvilkar that he had completed his cross-examination. Indeed Mr. Khanvilkar had not done so, for he later on after his adversary had put questions to his witness which otherwise could be put in cross examination, proceeded to cross examine Gulam Hyder (PW 12). 27. The appellant was not charged with the offence punishable either' under section 5(1) (a) or section 5(1) (b) or 5(3) of the Prevention of Corruption Act and hence the evidence of Kailash Kala (PW 8) producing the document (Ex. P-61) containing evidence of bad character of the accused which under section 54 Evidence Act is irrelevant, it should not have been admitted. It could also not have been admitted showing propensity on the part of the accused to commit similar offence under section 14 of the Evidence Act. Reception of such irrelevant evidence has the danger of loading a Judge's mind against the accused. 28. To conclude, the appeal is allowed. The appellant is acquitted of the offences punishable under section 161 Indian Penal Code and section S(1) (d) read with section 5(2) of the Prevention of Corruption Act. His bail and personal bonds shall stand discharged. Seized Rs. 201 shall revert to Manohar (PW-7) and the rest of the articles shall be restored to the persons seized from. The amount of fine, if deposited by the appellant, be refunded to him.