JUDGMENT 1. - This criminal appeal by Narain Ram directed against the judgment of learned Special Judge for A.C.D. cases, Rajasthan, Jaipur City dated March 31, 1976, whereby the appellant has been convicted under Section 161 I.P.C. and sentenced to three months simple imprisonment and a fine of Rs. 100/- and in default, further 15 days' simple imprisonment, and convicted under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act, 1947 and the sentence of one years simple imprisonment and a fine of Rs. 200/- and in default of payment of fine, two months' simple imprisonment. 2. Brief facts of the prosecution case are:- 3. That Jodharam PW 6 lodged a complaint Ex. P/I, on April 5, 1973 to the Superintendent of Police, Anti Corruption Department, Jaipur on the allegation that a case under Section 107/117 has been filed by Gumana son of Lala in the Court of S.D.O. Shambhar. In that case he wanted of the complaint in order to show to his counsel and as such he filed an application for obtaining a certified copy on urgent fee in the Court of S.D.O., Sambhar on March 6, 1973 and the accused Narain Ram was the copying clerk. Narain accused told him, he would have to pay Rs. 50/- for obtaining the copy for which he had taken Rs. 40/- on March 12, 1973 through Ramji Lal son of Bheruram by caste Jat of Asalpur and now he was further demanding Rs. 10/- through the aforesaid Ramjilal. The accused inspite of the aforesaid copy being ready is clearly telling that he would prepare the copy on payment of Rs. 10/-. He, therefore, requested that action may be taken against such corrupt official. On the lodging of the above complaint, the Superintendent Police, A.C.D. for deputed Shri Khem Chand Tejwani Addl. Superintendent of Police, A.C.D. for doing the need full against the accused and lay a trap. Shri Khem Chand Tejwani PW 7 on that very day received an amount of Rs. 10/- from Jodha Ram in the presence of Ramji Lal PW 2 and Ramesh Chandra PW 1. He then handed over the amount to Ramjilal for being given to the accused on demand. PW 7 Khemchand Tejwani put his initial on the said notes and put phenolphthalen powder on the said notes. 10/- from Jodha Ram in the presence of Ramji Lal PW 2 and Ramesh Chandra PW 1. He then handed over the amount to Ramjilal for being given to the accused on demand. PW 7 Khemchand Tejwani put his initial on the said notes and put phenolphthalen powder on the said notes. The trap party then proceeded to Sambhar in the office of S.D.O. Ramjilal and Jodharam met the accused Narainram in the office and requested him for the issue of the copies after taking the balance amount of Rs. 10/- as agreed by him. The accused thereupon issued copy Articles 9 to Jodharam and got the signatures on the register meant for this purpose and accepted Rs. 10/- as bribe from Ramjilal PW 2 for issuing the copy. The accused then moved in the court room of the S.D.O. After a signal being given by PW 2 Ramjilal, the Additional Superintendent, A.C.D. Shri Tejwani rushed to the Court room where the accused was sitting and after disclosing his identity card asked the accused to take out Rs. 10/- accepted by him as bribe. PW 4 Shri Narain Sharma, SDO also stepped down from the the court room. The accused did not utter any thing for some time nor he replied to the quarries made by the Additional Superintendent of Police. He thereafter told that he had not taken any bribe from anybody else nor he had demanded.Thereafter he took out the said notes from the pocket of his pants. The said notes are Articles 1 to 5, which were taken out from the pocket the pants. The numbers of the notes were compared with numbers mentioned in the delivery memo and were found to be the same. The hands of the accused and his pants was washed with sodium carbonate mixture and the water was found to be pinked. The hand wash and the pants pocket wash of the accused were preserved and sealed in bottles vide Articles 6 and 19. The pant of the accused was also seized. The application for issue of the copy Article 8' and the concerned record was also taken into custody vide recovery memo Ex. P 14. The case was thereafter registered against the accused and challan was filed in the court for offences under Section 161 I.P.C. and 5(2) read with section 5(i) (d) of the Prevention of the Corruption Act. The application for issue of the copy Article 8' and the concerned record was also taken into custody vide recovery memo Ex. P 14. The case was thereafter registered against the accused and challan was filed in the court for offences under Section 161 I.P.C. and 5(2) read with section 5(i) (d) of the Prevention of the Corruption Act. The charge was framed against the accused under above Sections. The accused pleaded not guilty and claimed to be tried. 4. The prosecution in support of its case examined PW 1 Ramesh Chand, PW 2 Ramjilal, PW 3 Mohan Lal, PW 4 Shri Narain Sharma, PW 5 L.N. Gupta, PW 6 Jodha Ram, and PW 7 Khem Chand Tejwani. The accused in his statement recorded under Section 313 Cr.P.C. did not deny the laying of the trap and the recovery of Rs. 10/- from him, but stated that he never demand-ed or accepted Rs. 40/- and 10/- as bribe from Jodharam or Ramjilal for issuing the copies. He further stated that some time prior to the trap, but he had given a loan of Rs. 10/- to Ramjilal PW 2 and he had repaid the said amount on the day of trap, but he was wrongly traped for taking bribe. He also stated that formerly he was revenue clerk in the Court of S.D.O.who a that time an altercation took place between him and PW 1 Rameshchand had asserted that the copy was wrongly issued to him by the accused. Ramesh Chand wanted to get the same corrected by him but he was not ready to correct it unless ordered by the S.D.O. On this Ramesh Chand got annoyed and abused him. The accused then got Ramesh Chand remove from the office through Suleman DW 2 a peon in the office. According to the accused this trap was laid at the instance of Ramesh Chand with the connivance of Ramji Lal PW 2. The accused in his defence examined DW 1 Raghuraj Singh, DW 2 Suleman and DW 3 Hanuman Prasad, PW 6 Jodharam in his statement clearly denied to have paid any amount by way of bribe to the accused. He also stated that he had put his signatures on Ex.P/1 but he was illiterate and the contents of Ex.P/ 1 were not read over to him. He also stated that he had put his signatures on Ex.P/1 but he was illiterate and the contents of Ex.P/ 1 were not read over to him. He admitted that application for obtaining certified copy of the complaint was submitted by him through a clerk of his counsel and the same was given to the accused and he had told him to come after two days and did not tell any thing else. He then went to the accused after two days but the accused was not found and thereafter he did not go to him. The witness was declared hostile at the request of the Public Prosecutor. PW 3 Mohan Lal was also declared hostile. The learned Special Judge however, placed reliance on the statement of PW 1 Ramesh Chand, PW 2 Ramjilal, PW 4 Shri Narain Sharma and PW 7 Khem Chand Tejwani and held the accused guilty for the aforesaid offences and sentenced him, as mentioned above. Aggrieved against the aforesaid conviction and sentence accused has filed the present appeal. 5. The learned counsel appearing for the appellant vehemently contended that the learned Special Judge himself has arrived to the conclusion that the prosecution has failed to prove the fact of demand and payment of Rs. 40/- to the accused, Jodharam,the main complainant and the decoy has not supported the prosecution case and has been declared hosptile. Ramesh Chand PW 1 is a witness was had appeared as a trap witness in a number of cases filed by the Anti corruption Department. He is a person who had a grudge against the accused as on a previous occasion an altercation had taken place between him and the accused and no reliance can be placed on the statement of such a witness. Ramjilal PW 2 though has stated that he had given Rs. 40/- on an earlier occasion to the accused but that fact is not supported by Jodh Ram himself. He had a grudge against Ramesh Chand as he did not want to repay the loan of Rs. 10/- taken by him from the accused and he is giving false statement. It is further contended that apart from the statements of these two witnesses there is no other independent evidence to hold the appellant guilty for aforesaid offences. He had a grudge against Ramesh Chand as he did not want to repay the loan of Rs. 10/- taken by him from the accused and he is giving false statement. It is further contended that apart from the statements of these two witnesses there is no other independent evidence to hold the appellant guilty for aforesaid offences. The accused has given an explanation that Ramjial had taken loan from him and the same was returned to him back.There is no reason to disbelieve this explanations specially when the main story of the prosecution of giving the amount of Rs. 10/- as bribe become highly doubtful. Reliance in this regard is placed on Suraj Mal v. The State (Delhi Administration), AIR 1979 SC 1408 , wherein it was observed that in a case of bribery. mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Reliance is also placed on Man Singh v. Delhi Administration, AIR 1979 SC 1455 , wherein it was observed that : "It is well settled that in such cases the accused is not required to prove his defence by the strict standard of proof of reasonable doubt, but it is sufficient if he offers an explanation or defence which is probable and once this is done, the presumption under Section 4 stands rebutted." 6. The learned Public Prosecutor, on the other hand, supported the judgment of the learned Special Judge. 7. The main feature of the case is that the decoy Jodha Ram PW 6, who is alleged to be the complainant and the main aggrieved person has not at all supported the prosecution case and has been declared hostile at the request of the Public Prosecutor. PW 6 Jodharam has not even admitted the contents of Ex. P/1, the complaint lodged to the Superintendent of Police Anti Corruption Department, According to him, no money was demanded as bribe by the accused at any time. Though, he admitted his signatures on Ex. P/1 but he clearly stated that he is illiterate and could only put his signatures. He did not know for what purpose the complaint Ex. P/1 was given. He had gone to Jaipur and a complaint was written by Ramash Chand PW 1 and the same was submitted by him in the office. Though, he admitted his signatures on Ex. P/1 but he clearly stated that he is illiterate and could only put his signatures. He did not know for what purpose the complaint Ex. P/1 was given. He had gone to Jaipur and a complaint was written by Ramash Chand PW 1 and the same was submitted by him in the office. He denies to have given Rs. 10/- in the anti corruption department. On being declared hostile he was cross-examined by the Public Prosecutor wherein he clearly stated that it was wrong to state that the accused had demanded Rs. 50/- from him for issuing the copies out of which he paid Rs. 40/- and the accused further demanded balance of Rs. 10/-. Ex. P/2 when read over to him, he clearly stated that no such writing was done in his presence, nor the same was read over to him, though his signatures were taken on it. He further leads support to the case of the defence that when he had obtained the copy, Ramjilal had given Rs. 10/- to the accused but that amount was the amount of loan. PW l Ramesh Chand has stated that Jodharam and Ramjilal had come to his house and told him that a case of Jodharam was pending in the S.D.O. Court, in which Jodharam had given an application for obtaining the copy and in that connection accused had already taken Rs. 40/- and was further making demand of Rs. 10/-. The said amount of Rs. 40/- was given to the accused through Ramji Lal. Ramesh Chand then told them that if the accused was demanding Rs. 10/- then they should have entrapped him while taking bribe. He admitted that accused Narain Ram was known to him who was a clerk in S.D.O. Court in Sambhar. Jodharam then asked him to accompany and Ramesh told him to come on the next morning. Jodharam and Ramjilal came on the next morning and then all the three came to Jaipur and went in the office of the Anti Corruption department. Todharam got an application written by him and presented the same in the Anti-corruption Department, the said applications was Ex. P/1. He further stated that he had written the contents of the application as told by Jodharam and had also read over the same to Jodharam. Todharam got an application written by him and presented the same in the Anti-corruption Department, the said applications was Ex. P/1. He further stated that he had written the contents of the application as told by Jodharam and had also read over the same to Jodharam. Jodharam then in his presence submitted the complaint to D.I.G. Anti-corruption Department. D.I.G. then gave an order in the name of Additional Superintendent of Police Tejwani. Jodharam then met Shri Tejwani along with Ex. P/1 and also produced Rs. 10/- along with the complaint which constituted of a note of Rs. 5/- one note of Rs. 2/- and three notes of Rs. 1/- Thereafter he has slated that Shri Tejwani after signing the said notes gave it to Ramjilal and told him to give the same to the person who was demanding the bribe. He thereafter accompanied the raiding party and has narrated that he remained standing out side the room. Jodharam and Ramjilal went inside the room where the accused was sitting and when came out they gave signal on which Shri Tejwani and others went in the Court room. The accused then had taken out Rs. 10/- from his pocket and Shri Tejwani prepared recovery memos after completing all the formalities. In the cross examination he stated that he did not know S.P. Shekhar of Anti Corruption Department. He had got in trap Shri Ganpat Singh in which he and Jagnath were Motbir, he did not remember as to in how many cases of Anti-corruption Department, he appeared as a witness but he denied to have given such statement in 10 to 20 cases. He further stated that he had appeared as a witness on behalf of Anti-corruption Department in a case of Himat Singh. He did not not know whether in the case of Ganpat Singh the High Court had considered his statement as unreliable or not. In that case the trap was laid by Devi and Ramjilal. He new Bhanwar Lal Jat and Ghashi Ram Jat of Bobas. He did not remember as to whether any report in Anti Corruption Department was made or not. He knew Jodharam for the last several years and also Ramjilal, who was of his own village, and had good relation with him. Ramesh Chand then admitted that he knew the accused for the last several years as he was employed at Shambhar. He did not remember as to whether any report in Anti Corruption Department was made or not. He knew Jodharam for the last several years and also Ramjilal, who was of his own village, and had good relation with him. Ramesh Chand then admitted that he knew the accused for the last several years as he was employed at Shambhar. He did not section the actual proceedings of giving and taking of money as he was standing outside of the room. When he had gone to Jaipur with Jodharam then he paid his own expenses.He further stated that he had filed a suit against Vinod Bai, who was his mother. The detailed of the judgment of Vinodbai were sent in the Tehsil. He did not know that his Khasra number and the area was wrongly mentioned in the description and as such the mutation could not be done. He denied that as the Khasra numbers and the area was wrongly mentioned in the description, as such, had gone to the accused for getting the same corrected. He further denied that the accused told him that the correction could be done on the orders of the S.D.O. He further denied any altercation having taken place on this account with accused and he did not see Girvar Singh, Suleman and Raghuraj Bareth at that time. He also denied that he was turned out by accused through Suleman poen. He denied to have any grudge with the accused and on that account to handled any trap. From a perusal of the statement of the above witness, it appears that he was frequently appearing as a witness in other cases of Anti Corruption Department. In the normal course of human conduct, it is not possible that the witness would pay his own expenses even on going from his village to Jaipur, especially, when he was going for the cause of Jodharam. The defence has examined DW 1 Raghuraj Singh, who has stated that in the months of October or November, in 1972 abuses were being heard between the accused and Ramesh Chand. This was in relation to a decree passed in revenue case. Ramesh Chand was abusing the accused and was telling that he had prepared a wrong decree. On this the accused was telling him to get on order of correction from the S.D.O. and then he would prepared another corrected decree. This was in relation to a decree passed in revenue case. Ramesh Chand was abusing the accused and was telling that he had prepared a wrong decree. On this the accused was telling him to get on order of correction from the S.D.O. and then he would prepared another corrected decree. On this, Narain accused had got Ramesh turned out of the room through Suleman peon. Not a single question has been put by the Public Prosecutor in cross examination to this witness. Suleman DW 2 has also supported the above case of the defence that altercation had taken place between accused and Ramesh Chand in the matter of correction of decree. The accused had told him to turn Ramesh out of the room on which he had requested Ramesh not to raise any quarrel and on which Ramesh had told to take action later on. In the cross examination by the Public Prosecutor, statement of this witness also remained unshaken. From the statement of this witness it appears that the case of the defence that Ramesh Chand was having a grade against the accused cannot be ruled out. Ramesh Chand has not denied that he was not knowing the accused from before, who on the contrary has admitted that he know him for a long time as he was an employee in the S.D.O. Court. The substantial part of his story does not find support from Jodharam PW 6 himself and as such no implicit reliance can be placed on the statement of such witness. Ramjilal PW 2 has stated that he met Jodharam on 12-3-73 in the S.D.M. Court, Sambhar, Jodharam told him that a complaint has been filed against him under Section 107 and 117 and he wanted to obtain a copy. He asked Jodharam whether he had given any application for copy on which Jodharam told him that he had given an application four or five days before on double fees. Jodha told him that accused Narain was demanding Rs. 50/- as bribe on which he told that he knew Narain who was doing the work of issuing copies. He then set near Narain accused and then he along with Johdaram and Narain accused came in a tea stall. He then told the accused that Jodhram was a poor man and he would not be in a position to pay suck amount. He then set near Narain accused and then he along with Johdaram and Narain accused came in a tea stall. He then told the accused that Jodhram was a poor man and he would not be in a position to pay suck amount. The accused on this told that he would take the above amount on which he told Jodharam to take out the money and Jodharam gave him four notes of Rs. 10/- each and those notes were given by him to Narain accused. The accused then told that the copy was not ready and as such asked for remaining balance of Rs. 10/- on which he would give the copy. That he went two times to the accused on which once the accused told that the copy was ready but the S.D.M. had gone out side and his signature had not been obtained on the copy and on the second time when he enquired the accused, he told that he had obtained the signatures of the S.D.M. and told him for payment of balance Rs. 10/- and take the copy. Then he informed Jodharam on which Jodharam came to him on 4-4-73 and told him to pay Rs. 10/- and obtain the copy, and on which he suggested that if he would pay Rs. 50/- for obtaining the copies then how would they work in future. On this Jodharam told him to find a device to get him entrapped in the Anti corruption Department. On this he told Jodharam to go to Ramesh Chand Bareth of his village and take his advice. Then, they met Ramesh Chand in the same evening and on this Ramesh Chand told them to accompany on the next morning in Anti Corruption Department, Jaipur. Thereafter, this witness has narrated the subsequent story as stated by Ramesh Chand. In his cross examination, he has stated that he did not tell Jodharam that so much amount was being demanded by the accused for issuing the copy, then they should have a talk with the lawyer. He also did not tell Jodharam for making a complaint to S.D.M. about the bribe being demanded by the accused. He further stated that he did not know who was the lawyer of Jodharam. He did not make a complaint to the S.D.M. against the accused, he did not know such complaints are made to him. He also did not tell Jodharam for making a complaint to S.D.M. about the bribe being demanded by the accused. He further stated that he did not know who was the lawyer of Jodharam. He did not make a complaint to the S.D.M. against the accused, he did not know such complaints are made to him. He then stated that he did not know that it was an offence to give and take bribe both. Ha had given innocently and on compulsion Rs. 40/- as bribe to the accused. He had told Jodharam that it was his own affairs to deal with the bribe taker on which Jodharam told him that the accused would take money through him and on this he had given Rs. 40/- to the accused. The witness then said that when he had given Rs. 40/- then he knew that it was an offence to give bribe, but he had done so under compulsion. A case of absconding a minor girl has been lodged against him in which the counsel cross examining him on behalf of the accused was his counsel. The witness further admitted that till he had given Rs. 40/- it was not in his idea to entrap the accused but when the accused further demanded Rs. 10/-, it came in his idea to get him entrapped. As far as story of giving Rs. 40/- to the accused is concerned,the learned Special Judge has himself dis-believed such story. The conduct of this witness itself is reprehensible in as much as he himself gave Rs. 40/- to the accused on an earlier occasion, It is not understandable that for issuing a certified copy of a complaint, the accused would make a demand of Rs. 50/-. In any case, if the story of the prosecution that accused demand Rs. 50/- to be believed in that case in normal course of conduct, Ramjilal and Jodharam should have laid a trap from the very beginning and there was no question of giving Rs. 40/- without any protest and thereafter lay a trap for the amount of Rs. 10/- only. If Romjilals statement is to be believed that this matter was settled with the accused in Rs. 50/- out of which Rs. 40/- were given, where was the compulsion separately with regard to Rs. Rs. 40/- without any protest and thereafter lay a trap for the amount of Rs. 10/- only. If Romjilals statement is to be believed that this matter was settled with the accused in Rs. 50/- out of which Rs. 40/- were given, where was the compulsion separately with regard to Rs. Rs. 10/- only from the side of the accused and as such there was no occasions for laying a trap for the remaining amount. According to the statement of Ramjilal, Jodharam had come to him to pay the balance amount of Rs. 10/- and had no idea to lay any trap. Ramjilal has also admitted that one case of absconding the minor girl was pending against him and in these circumstances this witness does not seem to be sterling worth and the story narrated by him cannot be relied implicitly especially when Jodharam PW 6, the main complainant and the aggrieved person, has not at all supported the prosecution case. If the evidence of these two witnesses PW 1 Ramesh Chand and PW 2 Ramjilal remained doubtful, the subsequent case o the prosecution which is proved by PW 4 Shri Narain S.D.M. and PW 7 Khem Chand Tejwani does not render any assistance to the prosecution case. In the absence of PW 6 Jodharam supporting the prosecution case it is highly doubtful to accept testimony of PW 1 Ramesh Chand and PW 2 Ramjilal in support of the prosecution case to uphold the prosecution story that the amount of Rs. 10/- was accepted by the accused as bribe. The explanation given by the accused that the amount of Rs. 10/- was returned back by Ramjilal PW 2 becomes more plausible and it cannot be said that such explanation given by the accused is not conceivable. Apart from the explanation given by the accused in his statement, he has also examined DW. 3 who is a clerk of Ram Niwas Advocate and he has stated that on his security the accused had advanced a loan of Rs. 10/- to Ramjilal. There is nothing to discredit the statement of DW. 3 in the cross examination done by the Public Prosecutor. In such circumstances, in my view, the prosecution has failed to prove the guilt against the appellant beyond reasonable doubt. 8. 10/- to Ramjilal. There is nothing to discredit the statement of DW. 3 in the cross examination done by the Public Prosecutor. In such circumstances, in my view, the prosecution has failed to prove the guilt against the appellant beyond reasonable doubt. 8. In the result, this appeal is allowed, the judgment of conviction and sentences passed by the learned Special Judge, A.C.D. cases dated 31-3-1976 is set aside and the accused appellant is acquitted of offences under Section 161 I.P.C, as well as under Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act, 1947. The accused appellant is on bail and he need not surrender to the bail bonds.Appeal allowed. *******