JUDGMENT 1. - Appellant Prem Swaroop was tried by the learned Special Judge for ACD cases, Rajasthan, Jaipur for the offences under section 161 Indian Penal Code and 5 (1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 (hereinafter to be referred as the Act). The learned trial Judge by the judgment dated July 21, 1975 convicted the appellant for these offences and sentenced him to six months rigorous imprisonment and a fine of Rs. 300/- in default to undergo one months rigorous imprisonment for the first count and one years rigours imprisonment and a fine of Rs. 500/- in default of payment of fine to undergo rigorous imprisonment for two months for the second count with an order that the substantive sentences awarded on both the counts shall run concurrently. 2. Succinctly narrated the facts of the case giving rise to this appeal are as under:-One Amarjeet Singh, brother-in-law of Shivraj Singh (PW. 1) was in judicial look-up at Sub-Jail Karanpur as an under trial prisoner. Shivraj Singh used to go there for an interview with Amarjeet Singh Appellant Prem Swaroop was posted as Head Warder there. On December 21, 1973 and January 4, 1974 Shivraj Singh had 1o give Rs. 10/-each day to the appellant for allowing the interview. On January 11, 1974 Shivraj Singh again wanted to meet with his brother-in-law Amarjeet Singh. A demand of Rs. 10/- was made by the appellant. Shivraj Singh did not like to part with the money and therefore, approached the Deputy Superintendent of Police, Anti Corruption Department, Ganganagar, K.P. Srivartava (PW. 8) and complained about the demand made by the appellant. The Deputy Superintendent of Police in the presence of motbirs Pritpal Singh (PW. 7) and Mohanlal a ked Shivraj Singh to give him a currency note of Rs. 10/- denomination. The Deputy Superintendent of Police initialled the currency note given by Shivraj Singh and treated it with phenolphthalein powder. Mixing the powder in water react was demonstrated The currency note treated with the powder was made over to the decoy Shivraj Singh for being given to the appellant, lie was asked to give a signal by placing his hand on bis turban on the appellant receiving the currency note. Necessary memos for all these proceedings were prepared by the Deputy Superintendent of Police. Necessary memos for all these proceedings were prepared by the Deputy Superintendent of Police. On the same day at about 4.15 p.m. Shivraj Singh went to the Sub-Jail and when the appellant reached the gate he had a talk with him. Shivraj Singh gave the currency note intended to be used for the trap. The appellant received it in his right hand and placed it in the right side outer pocket of his cost. Pritpal Singh (PW. 7) and Mohanlal, the motbirs, remained standing at a little distance from the decoy and the appellant and saw Shivraj Singh handing over the money to the appellant and the latter putting it in the pocket of is coat. The trap party remained at a little distance waiting for the signal from the decoy. When the appellant received the money, Shivraj Singh gave the preplanned signal. The Deputy Superintendent of Police K.P. Srivastava (PW. 8). Nahar Singh (PW. 4) Sub Inspector, Hukam Chand (PW. 6) and Khuman Singh (PW. 3) constable rushed towards the place where the appellant and the decoy were. On seeing them the appellant lock to heels, but was apprehended by Hukam Chand and Khuman Singh con tables. Being caught hold of by the trap party, the appellant took out the incriminating currency note from his pocket and threw it on the ground. Magha Ram constable was deputed to watch the currency note lying on the ground. Bherusingh (PW. 2), Assistant Jailor of that Sub-Jail also reacted there. In the presence of the motbirs and the Assistant Jailor the appellant was asked to dip bis right hand in a glass of water mixed with sodium carbonate. It revealed the contents of powder because of the water changing into pink colour. The left hand of the appellant was also got dipped in another glass of water. It revealed no reaction The appellant was asked to put off his coat The outer right side pocket of the coat was washed into sodium carbonate mixture. The mixture revealed the contents of the phenolphthalein powder. The incriminating currency note thrown by the appellant and lying on the ground was taken into possession. The water revealing reaction was also taker, in two bottles and sealed then and there. The appellant was arrested. The mixture revealed the contents of the phenolphthalein powder. The incriminating currency note thrown by the appellant and lying on the ground was taken into possession. The water revealing reaction was also taker, in two bottles and sealed then and there. The appellant was arrested. After completion of necessary investigation charge sheet against the appellant was filed in the Court of Special Judge for ACD Cases, Rajasthan Jaipur City. 3. The learned trial Judge charge sheeted the appellant for the aforesaid offences and recorded his plea. He denied the indictments and claimed to be tried Prosecution examined eight witnesses in all. In his statement under section 313 of the Code of Criminal Procedure the appellant denied the allegations levelled against him and stated that on January 11, 1974 Shivraj Singh went to the office and complained to Bheru Singh about hi(appellants) harsh treatment and asked the Sub-Jailor to get the matter compromised between the two. The Jailor did so. Thereafter, he and Shivraj Singh came out. Shivraj Singh asked him to purchase a bottle of wine to be enjoyed at a dinner that evening arranged by him. That, despite his refusal to accept the money Shivraj Singh put the ten rupees note in his pocket. That, when he was suddenly caught hold of by the persons he exclaimed that he had not received any tribe and Shivraj Singh had forcibly put ten rupees note in his pocket for purchasing the bottle of win~ which he then out of anger threw away. That he had also told Shivraj Singh that he had deceived him. He admitted the fact of his hand and the pocket of his coat being washed but expressed his ignorance about the change of colour of the water. He admitted that the water taken in o bottle was sealed. He admitted the coat being taken in possession but expressed his ignorance about the currency note being taken in the possession. He however stated that Shivraj Singh was telling a lie and got him entrapped on account of enmity and the police personnel would naturally support his case That, Pritpal Singh (PW. 7) being brother of Amarjeet Singh was telling a lie. Two constables posted at Sub-Jail Karanpur were examined to substantiate the defence version that the ten rupees currency note was given by Shivraj Singh to the appellant for the purchase of a bottle of wine. 7) being brother of Amarjeet Singh was telling a lie. Two constables posted at Sub-Jail Karanpur were examined to substantiate the defence version that the ten rupees currency note was given by Shivraj Singh to the appellant for the purchase of a bottle of wine. The learned trial Judge placed reliance on the prosecution evidence and did not believe the explanation given by the appellant for his possession of the incriminating note. The learned trial Judge therefore, held the appellant guilty for the above mentioned charges and sentenced him as stated earlier. 4. Being aggrieved by his conviction and sentences Prem Swaroop has preferred this appeal in this Court. 5. Mr. L.R. Calla, learned counsel for the appellant has assailed the findings of the learned trial Judge on the ground that there being no evidence to establish that the appellant was a person in authority who could have arranged the meeting of the decoy with his brother-in-law Amarjeet Singh, the learned trial Judge should cot have arrived at a conclusion that money, even if received by the appellant, was an illegal remuneration. Another point raised by Mr. L.R. Calla is that the initial burden is on the prosecution to establish that the culprit has received any thing other than his legal remuneration, or had any intention to take any thing from any body by way of bribe, or had abused his position as public servant. According to the learned counsel these facts should be established by independent evidence which is lacking in the present case. It has been contended that the decoy was interested in getting the appellant punished, the persons of the trap party were also interested in the success of the case and the shadow witness Pritpal Singh (PW. 7) happens to be the relative of Amarjeet Singh, the under trial brother-in-law of decoy Shivraj Singh. In such circumstances it is a case in which there is no independent corroboration to the prosecution case alleged by the decoy. Mr. 7) happens to be the relative of Amarjeet Singh, the under trial brother-in-law of decoy Shivraj Singh. In such circumstances it is a case in which there is no independent corroboration to the prosecution case alleged by the decoy. Mr. L.R Calla emphatically urged that even in view of the fact that even if ten rupees currency note being placed in the pocket of the appellant and his throwing it away on the ground was seen by witnesses and was seized by the trap party, still, the reasonable and plausible explanation given by the appellant that the money was forcibly planted in his pocket by Shivraj Singh for purchase of a bottle of wine to be used at the evening dinner arranged by Shivraj Singh is worth believing. The learned counsel stressed that this being the position there was no justification in the learned trial Judge drawing a presumption under section 4 of the Act. The learned counsel for the appellant has referred to a number of authorities to substantiate his arguments, which I would just discuss. 6. Controverting these contentions Mr. H.N. Calla learned Public Prosecutor, submitted that prosecution has duly established the fa:t that the appellant was habitually demanding and receiving money from Shivraj Singh as a consideration for arranging the meeting or Shivraj Singh brother-in-law Amarjeet Singh. Similarly the passing of the ten rupees currency note from Shivraj Singh to the hand of the appellant and the latter putting it in his pocket and then throwing it away on being chased by the trap party has been established. The learned Public Prosecutor argued that in such circumstances the explanation given by the accused being quite improbable the learned trial Judge was justified in presuming that the appellant had obtained the currency note as bribe. 7. At the very outset it may be observed that there is oral as well as documentary evidence to substantiate the prosecution case that Amarjeet Singh brother-in law of the decoy Shivraj Singh was an under trial in sub jail Karanpur at the relevant time and Shivraj Singh had gone to meet him on December 21, 1973 and January 4, 1974. At the very outset it may be observed that there is oral as well as documentary evidence to substantiate the prosecution case that Amarjeet Singh brother-in law of the decoy Shivraj Singh was an under trial in sub jail Karanpur at the relevant time and Shivraj Singh had gone to meet him on December 21, 1973 and January 4, 1974. The statement of Shivraj Singh that he was allowed the meeting by the appellant on those dates on payment of rupees ten each time, cannot be doubted merely for the reason that the permission for such a meeting was to be sought from the S.D.M , Incharge of the Sub-Jail and the meeting was to be allowed at the direction of the sub-jailor. The sub-jailor has of corse stated that without his permission no body can arrange a meeting with the under trials, but Shivraj Singh has stated that even after obtaining an order from the S.D.M., the appellant was not arranging the meeting without having ten rupees and therefore, he did not try to obtain the order from the S.D.M. 8. The point to be determined is whether the appellant was in a position to do that work or get it done in any manner, whether he could have done so with or without lawful authority. 9. It is of course for the prosecution to prove that the work agreed to be done by the person accepting the gratification was possible for him so as to lead to the person parting with the money to think that his work would be done by that person. 10. In cases of this type the prosecution can be said to have discharged its burden when it establishes by cogent evidence that cash or kind has been received by the accused and it was not his legal remuneration. The burden then shifts to the accused to explain that the amount or the article so received by him as legal remuneration, if a public servant by corrupt or illegal means or otherwise abusing the position as public servant obtains any valuable thing or pecuniary advantage, he is guilty for the criminal misconduct, and his case falls within the ambit of Sec.5(1)(d) of the Act. 11. The learned counsel for the appellant has referred to the case of Khemhu Ram v. The State, 1972 Criminal Law Journal-382. 11. The learned counsel for the appellant has referred to the case of Khemhu Ram v. The State, 1972 Criminal Law Journal-382. wherein while discussing the principle that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution it was observed that the prosecution evidence has to be assessed beyond the realm of reasonable doubt for discharging that burden and if such evidence is not forthcoming the accused would be given the benefit of the same and in such case the presumption under section 4(1) does notarise at all The necessity for corroboration of the decoy and the trap witnesses was also was discussed. The learned trial Judge had considered the evidence of defence at first and finding certain shortcomings in it, concluded that the money was obtained by the accused and raised the presumption against him. This was considered to be a reason of miscarriage of justice. 12. In the case of Ram Prakash Arora v. The State of Punjab, 1972 Criminal Law Journal-1293. their Lordships of the Supreme Court were pleased to enunciate the principle that evidence of interested and partisan witnesses who are concerned in the success of the trap must be tested in the same way as that of any other interested witness and in a proper case the Court may look for independent corroboration before convicting the accused persons. In that case the order of sanction of electric connection for the shop of the decoy was already passed and the evidence of the S.D.O. was that a pole mounting sub-station was to be erected which was to be fixed at a place which admittedly was in the same locality as the shop of the decoy was and the appellant was paid certain amount from the office for the purchase of bricks etc. for carrying out the work there. At the time of the trap the appellant was not having the concerned file of the decoy rather has had other files with him.In such circumstances the notes of twenty rupees recovered from his pocket were not considered to be incriminating circumstance, specially when the statement of the decoy was not considered to be impressive and his cross examination showed that he could not be implicitly relied upon. 13. In the case of Raghbir Singh v. State of Punjab, AIR 1976 Supreme Court-91. 13. In the case of Raghbir Singh v. State of Punjab, AIR 1976 Supreme Court-91. their Lordships were pleased to emphasise the importance of Independent witnesses by observing that the officers functioning in the anti corruption department must seriously endeavour to secure ready independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. 14. In that case the search witnesses were interested witnesses and, therefore evidence with regard to the giving of bribe and recovery of the amount from the person of the accused was not relied upon. Their Lordships therefore emphasised the importance of treating the mark d currency notes being treated with phenolphthalein powder as under:- "Where a trap is laid for a public servant, it is desirable that the marked currency notes, which are used for the purpose of trap, are treated with phenolphthalien powder so that the handling of such marked currency notes by the public servant can be detected by chemical process and the Court does not have to depend on oral evidence which is sometimes of a dubious character, for the purpose of deciding the fate of the public servant,". 15. In the case of Bhuneshwar Prasad Singh v. The State of Bihar, 1981 Criminal Law Journal-142. the entire prosecution case as to the laying of the trap was considered to be unacceptable mainly for the reasons that the witnesses who recovered the currency note from the accused were not examined and phenolphthalien powder was not sprinkled on the notes used in the trap. There were also divergent versions of witnesses as to the place of recovery of notes. Similarly the sanction order was not produced before the Court taking cognizance after the charge sheet and, therefore, it was held that there was not duly proved sanction. 16. A question as to when the initial burden of the prosecution to establish the guilt of the accused can be said to have been discharged and when does it shift to the accused and in what circumstances a presumption under section 4 of the Act can be raised has arisen time and again before the various High Courts and the Highest Court of the country, and Mr. L.R. Calla, referred to certain authorities on this aspect of the matter. 17. In the case of Man Singh v. Delhi Administration, AIR 1979 Supreme Court-1455. the facts leading to the recovery of a sum of Rs. 5/- from appellant was held to be proved beyond doubt and the question was whether the explanation given by him was probable. Complainant in that case was a Khorocha Wala and bad contended that the appellant had threatened him to get him challaned and it was decided that the complainant would pay a sum of Rs. 5/- per week to the appellant as bribe. The explanation given by the appellant was that this amount was due from the complainant on account of the balance of Rs. 10/-which had been paid to him for the fruit juice, costing Rs. 1/- only supplied to the appellant. According to the appellant he received Rs. 4/- and Rs. 5/-retrained to be paid which the complainant had promised to pay some other day That it was that amount of Rs. 5/- paid on the date of the occurrence which was recovered by the trap party. The presumption under section 4 of the Act was held to be rebutted. 18. In the case of the State of Rajasthan v. Rajendra Singh Saxena, 1980 Rajasthan Criminal Cases 260 it was held that Sec. 4(1) of the Act does not permit raising of a presumption for an offence under section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act Answering the question as to when such a presumption can be raised for the offence under section 161 Indian Penal Code their Lordships were pleased to observe as under:- "Presumption is only required to prove in a trial for an offence u/s. 161 I.P.C. against the accused that the accused who was a public servant accepted or obtained or agrees to accept or attempts to obtain from any person for the himself or for any other person any gratification. Once the prosecution so establishes, a presumption under section 4(1) of the Prevention of Corruption Act that the accused did as a motive or reward, such as is mentioned in 161 I.P.C. without consideration or for consideration which he knows to be inadequate,". 19. It was further observed that this presumption is rebuttable and the accused can prove it to the contrary. 19. It was further observed that this presumption is rebuttable and the accused can prove it to the contrary. It was also held that mere recovery of money divorced from circumstances, under which it is paid is not sufficient to convict the accused, when the substantive evidence in the case is not reliable. 20. It is noteworthy that in that case the decoy had not supported the prosecution case and was cross examined by the Public Prosecutor. The two independent witnesses did not actually see the passing of notes by the decoy to the accused respondent. Despite the Let of recovery not being disputed, in view of the circumstances that previous three attempts to lay a trap did not succeed and the decoy had totally gone against his previous version, the judgment of the trial Court convicting the appellant was interfered with. 21. In the case of State of Rajasthan v. Ved Prakash, 1980 Rajasthan Criminal Cases 108 the accused had by oral as well as documentary evidence proved that the defence taken by h;m was probable. According to him the money parted with by the decoy was in concern with the return of money by decoy Harchandram to one Inderjeet in whose partnership he got a contract for construction of a Khala from the Panchayat Samiti, Raisinghnagar of which lmarteram brother of the decoy was a member. That, it was in pursuance of a settlement that certain amount was to be paid by Harchand Ram to Inderjeet. The agreement was reduced into writing and exhibited at the trial. Imarteram and Harchand Ram asked the respondent to come to them on the next day On the next day Harchand Ram approached the Deputy Superintendent of Police, Anti Corruption Department and the trap was arranged. It was in those circumstances that the explanation of the accused was considered to be highly probable, cogent and acceptable. 22. There is no dispute regarding the principle enunciated in the various authorities referred to above. Whether prosecution has discharged its burden and the defence has given a probable explanation to rebut the presumption raised against the accused depends upon the facts and circumstances of a given case The pertinent question therefore, is whether in the present case the explanation given by the appellant is plausible and worth reliance. 23. Whether prosecution has discharged its burden and the defence has given a probable explanation to rebut the presumption raised against the accused depends upon the facts and circumstances of a given case The pertinent question therefore, is whether in the present case the explanation given by the appellant is plausible and worth reliance. 23. As observed above prosecution has discharged its initial burden that the decoy had passed a ten rupees currency note to the appellant which the latter bad thrown on the ground on seeing the trap party trying to apprehend him. The explanation given by the appellant is that he being of harsh nature Shivraj Singh was annoyed with him and complained to the Assistant Jailor Bheron Singh, who got the matter compromised between the two and Shivraj Singh wanted to give the ten rupees note for bringing a bottle of wine, to be enjoyed at a dinner arranged by Shivraj Singh. That, Shivraj Singh had forcibly put the note in the pocket of the coat of the appellant. Bheron Singh, Assistant Jailor has of course admitted that Shivraj Singh had gone to him to complain that the appellant was misbehaving with him and he may be made to understand. The witness also admitted that the harsh tone of the appellant may appear to the listener as if he was quarrelling. The witness did not support the defence vision that Shivraj Singh arid the appellant both were there in his room a short while before the trap and there was compromise between the two on his efforts. The two defence witnesses Rawatram (DW 1) and Ishwar Ram (DW. 2), constables at the Jail gate, have supported the defence version that Shivraj Singh and the appellant had reached near the gate in a jolly mood and the note of ten rupees denomination was placid by Shivraj Singh in the packet of the appellant for the purchase of the bottle of wine, despite the appellant refusing to accept it. This is correct that the shadow witness Pritpal Singh (PW. This is correct that the shadow witness Pritpal Singh (PW. 7) is a relative of Amarjeet Singh, the under trial brother-in law of the decoy Shivraj Singh and has stated that the appellant and Shivraj Singh were coming factum towards inside the gate just before the occurrence The question is not where from they were coming and in what mood, rather what requires decision is whether there was any occasion for the appellant to accept the money from the decoy so as to bring his case within the ambit of accepting illegal remuneration. 24. The argument of the learned Public Prosecutor is that they were not friends and the appellant being a Brahmin, even if he was taking drinks, would not have allowed the decoy to give a wide publicity to that by permitting him to put the money in his pocket for the purchase of the wine bottle. 25. This is not a case in which there is any dispute about the appellant throwing the money from his pocket on seeing the trap party and Khuman Singh (PW. 3) and Hukum Chand (PW. 6) catching hold of him while he tried run away from the site. In such circumstances the shadow witness not being quite independent will not affect the prosecution case. 26. The principles enunciated in the cases referred to above are of no help to the appellant in view of the facts and circumstances of this case The learned trial Judge in my opinion has rightly rejected the explanation given by the appellant. It is not a case of stealthily planting the incriminating note in the pocket of the appellant. I find myself unable to agree with the arguments of the learned counsel for the appellant that it was a case of forcible plantation of the incriminating currency note. Had it been so the appellant would have immediately thrown the currency note and would have uttered something to reprimand Shivraj Singh for such an endeavour. 27. Assuming arguands that the money was put by the decoy in the pocket of the appellant, still the very fact of his keeping the note in his pocket till the arrival of the trap party, shows that he was a consenting party to the passing over of the currency cote. 27. Assuming arguands that the money was put by the decoy in the pocket of the appellant, still the very fact of his keeping the note in his pocket till the arrival of the trap party, shows that he was a consenting party to the passing over of the currency cote. Natural impulse of an innocent man in such case would be to get enraged on seeing the person attempting to forcibly implant the money in the pocket and not to take to heels and throw away the money only when he comes into the clutches of the trap party. 28. I do agree that the standard of proof by the prosecution is different than the proof required for the accused to rebut the presumption raised under section 4 of the Act. Th appellant being the Head Warder of the Jail was a public servant. The argument of the learned Public Prosecutor, that he in that capacity could have abused his position as Public servant and there was every occasion for the relatives and friends of the prisoners and under trials to part with the mossy to have a meeting with them, is not devoid of force. 29. In the case of State of Assam v. Krishna Rao and another, AIR 1973 Supreme Court-28. the trial Court had convicted the culprit but the High Court had reversed that finding The matter having gone to the Supreme Court, their Lordships of the Supreme Court were pleased to allow the said appeal and set aside the judgment of the High Court and restored that of the Special Judge. Following principle was enunciated by their Lordships in the case:- "Where it is proved that a gratification has been accepted, the presumption under Section 4 of the Prevention of Corruption Act shall at once arise. It is a presumption of law and it is obligatory on the court to raise it in every case brought under Section 4 The words "unless the contrary is proved" mean that the presumption raised by S 4 has to be rebutted by proof and not by bare explanation which may be merely plausible The required proof need not be such as is expected for sustaining a criminal conviction; it need only establish a high degree of probability". 30. 30. Their Lordships in view of the facts and circumstances of that case were further pleased to observe that if money were recovered from the pockets of the two accused persons which were not their legal remuneration then there can be no further question of showing that these moneys had been consciously received by them. 31. In the case on hand there is no dispute on the point that the ten rupees currency note recovered of being thrown away by the appellant at the time when he was being caught hold of was his legal remuneration. The story given by him being highly improbable of the explanation given by him has been rightly held to be not plausible by the learned Special Judge. 32. The question regarding the presumption under the Act in the cases of bribery came before their Lordships of the Supreme Court in the case of Raghuvir Singh v. The State of Haryana, AIR 1974 Supreme Court-1516 ,. Their Lordships in view of the facts and circumstances of the case were pleased to hold as under:- "Even if the statutory presumption u/s. 4 is unavailable when the charge is u/s. 5(1) (d) read with Sec. 5(2) courts may presume what may in the ordinary course be the most probable inference. That an Assistant Station Master had in his hand a marked currency note made over to him by a passenger whose bedding had been detained by him for which no credible explanation was forthcoming, and he was caught red-handed with the note, is a case of res ipsa loquitur. The very thing speaks for itself in the circumstances". 33. In the case on hand, from the careful shifting of the evidence and consideration of the facts and circumstances of the case, the principle of res ipsa loquitur is attracted. The circumstances reveal that there was no reasonable excuse for the appellant to receive from the decoy the currency note, which in no circumstance can be said to be legal remuneration. The evidence show that he was abusing his post of a public servant. 34. In such circumstances, the learned trial Court has arrived at a correct conclusion in finding the appellant guilty for the offences he is sentenced for and his findings based on good reasoning's call for no inter reference. 35. In the result, the appeal having no merits is dismissed. The appellant is on bail. 34. In such circumstances, the learned trial Court has arrived at a correct conclusion in finding the appellant guilty for the offences he is sentenced for and his findings based on good reasoning's call for no inter reference. 35. In the result, the appeal having no merits is dismissed. The appellant is on bail. His bail bonds are cancelled. The Chief Judicial Magistrate, Jaipur City shall effect the arrest of the appellant by issuing warrant of arrest against him and send him to custody to suffer the sentence awarded to him.Appeal Dismissed. *******