JUDGMENT 1. - This State appeal is directed against the acquittal of the accused respondent of the charge under Section 161, IPC and Section 5(l)(d) read with Section 5(2) of the Prevention of Corruption Act. 2. The charge against the accused respondent was that he on August 5, 1969, being a public servant in the capacity of Additional District Magistrate and Administrator, Municipal Council, Sikar, directly accepted from one Shri Omprakash Jalan son of Shri Nathmal Jalan resident of Sikar, a sum of Rs. 1,000/- as a gratification other than legal remuneration as a motive or reward for getting a stay order vacated, previously issued by him in connection with the construction of a house of Smt. Anguridevi, wife of said Shri Omprakash Jalan PW 7. at Sikar. The charge was also that the accused, in the aforesaid capacity, by corrupt means, obtained for himself, pecuniary advantage of a sum of Rs. 1,000/- on the aforesaid date from PW 7 Shri Omprakash Jalan. 3. The facts in brief are that the respondent Jamna Lal Ladha, belonging to the cadre of RAS, was posted as Additional Collector, Sikar He also took over as Administrator, Municipal Council, Sikar, in the year 1969, in addition to his own duties as Additional Collector. Anguridevi is the wife of Omprakash Jalan PW 7 Under Ex. P 11 dated 18-5-69, the said Anguridevi had obtained a permission Ex. P 4 to construct a building opposite the Collectorate at Sikar, from the Municipal Council, Sikar. The constructions were in progress and on the ground that there has been encroachment on public way, the accused respondent issued a stay order on July 11, 1969 calling upon Anguridevi to stop further constructions. An application dated August 2, 1969 was filed on behalf of Smt. Anguridevi before the accused respondent praying that the stay order should be vacated. It is alleged that when Shri Omprakash Jalan PW 7 approached the accused respondent for vacation of the stay order, the accused respondent demanded a sum of Rs 1,000/- as illegal gratification for obliging him. PW 7 Omprakash Jalan did not like to give bribe and, therefore, he went to Jaipur and on August 5, 1969, filed a complaint Ex. P 25 before Shri Devendra Puri, PW 6 Superintendent of Police, Anti-corruption Department Omprakash PW 7 also gave ten currency notes of denomination of Rs. PW 7 Omprakash Jalan did not like to give bribe and, therefore, he went to Jaipur and on August 5, 1969, filed a complaint Ex. P 25 before Shri Devendra Puri, PW 6 Superintendent of Police, Anti-corruption Department Omprakash PW 7 also gave ten currency notes of denomination of Rs. 100/- each to Shri Puri, Shri Puri put his initials on all the currency notes and handed over those currency notes to Shri M.L. Dabi, PW 9, who was directed to arrange a trap at Sikar. 4. Shri Motilal Dabi PW 9, along with other police personnel, reached Sikar at about 5.00 p.m. that very day. He took two motbirs Durgaprasad PW 5 and Bhawani Singh PW 8 from the petrol pump and Shri Dabi dubbed the ten currency notes in anthracene powder and prepared memo Ex. P 23. The ten currency notes were handed over to Shri Omprakash Jalan and he was instructed that as and when the accused respondents accepts the currency notes, he should give the agreed signal. Omprakash went in his car to the office of the accused-respondent. The other members of the raid were in a corner waiting for the signal but after some time, Omprakash came out and told to Shri Dabi and others that the accused has refused to accept the bribe in his office and has given out that he will accept the amount while going to his house. The raid party, therefore, went to a place near the house of the accused respondent and was lying in wait. The case of the prosecution further is that some time at about 6.00 p.m., the accused respondent came out of his office and boarded the car of Shri Jalan PW 7. Shri Jalan drove the car towards the house of the accused and the jeep belonging to the accused was being driven by a driver. In the way, near Nani gate, it is alleged that the ten currency notes of Rs. 100/- each, that is, in total a sum of Rs 1,000/- was accepted by the accused from Omprakash PW 7 in the car. The amount was kept in a diary of the accused and the accused alighted from the car and went to his jeep which was following him. Omprakash PW 7 drove straightaway to the house of the accused where the raid party headed by Motilal Dabi PW 9 was waiting. The amount was kept in a diary of the accused and the accused alighted from the car and went to his jeep which was following him. Omprakash PW 7 drove straightaway to the house of the accused where the raid party headed by Motilal Dabi PW 9 was waiting. He passed the signal to them that the accused has accepted currency notes of Rs. 1,000/- and then went away. After about 10 to 12 minutes, the accused driving his jeep came to his house but the main gate of his house was closed and, therefore, he had to stop his jeep. Shri Dabi PW 9, along with others and the two motbirs above named, stopped the accused and the ten currency notes of Rs. 100/- each are said to have been recovered from a small pocket of the pant under the belt in the right side. They were found wrapped in a paper. The recovery memo was prepared and the notes were seized and sealed. A black diary Ex. 5 was also found lying by the side in the jeep where the accused was sitting. Some papers were also found in it. The diary along with the papers was sealed. The bushirt Ex. 24, pant Ex, 25 and a handkerchief Ex. 26 were also taken possession of from the person of the accused who was made to wear other clothes which were got from his house. 5. Though the accused was released on bail as the Superintendent of Police and the Collector Sikar had arrived but as Mr. Dabi wanted the accused to be taken to Jaipur for forensic test to detect as to whether there was any anthracene powder on his hands or not and whether there was any anthracene powder on his clothes including the pocket from which the currency notes were recovered. The accused was not allowed to be. The two motbirs Durgaprasad and Bhawanisingh PW 8 as well as Omprakash PW 7 were also directed to reach Jaipur. Bhawanisingh accompanied Shri Motilal Dabi PW 9 in his jeep whereas Omprakash Jalan and Durgaprasad went in the car of Omprakash Jalan PW 7. The case of the prosecution further is that the railway gate was closed and the accused wanted to urinate. While urinating, the accused washed his hands with his own urine and also rubbed them with sand which was lying there. The case of the prosecution further is that the railway gate was closed and the accused wanted to urinate. While urinating, the accused washed his hands with his own urine and also rubbed them with sand which was lying there. The accused was taken to the forensic science laboratory, Jaipur, where at about 1.00 in the afternoon, PW 1 Rameshwar Prasad, the photographer, examined the hands of the accused under ultra-violet rays to detect the presence of anthracene powder. In case there is anthracene powder on anything, under ultra-violet rays, it gives a glow. On examining the hands, anthracene powder was not detected. So also no anthracene powder was found in the pocket marked X from which the currency notes were recovered or in the pant Ex. 25, the bushirt Ex. 24 and the handkerchief Ex 26. But the paper Ex. 6 in which it is said that the notes were found wrapped, was found smeared with anthracene powder and so also the diary Ex. 5 and the papers recovered from it. 6. After the consent of the Appointing Authority, a chargesheet was filed against the accused. The plea of the accused was that currency notes were not recovered from his pocket. His plea was that on August 5, 1969, he had gone to inspect a site after about 6.00 p.m. and Omprakash Jalan also wanted to inspect the site of his house so that the stay order may be vacated and the construction may continue. Gokulchand PW 4 was the overseer of the Municipal Council, Sikar and when he was inspecting the site and come back, he saw that Omprakash was standing near his jeep and he had left his diary Ex. 5 at driver's seat. The notes might have been planted by Omprakash Jalan while he (the accused) was away. The accused did not handle the notes and when his jeep was stopped near his house, the currency notes were not recovered from his pocket as alleged, but they were found in the diary which was lying near the seat of the driver. The accused examined number of witnesses in defence. The learned Special Judge held that the prosecution has failed to prove that the accused demanded any sum from Omprakash Jalan for vacating the stay order which had been issued by him as Administrator, Municipal Council, Sikar. The accused examined number of witnesses in defence. The learned Special Judge held that the prosecution has failed to prove that the accused demanded any sum from Omprakash Jalan for vacating the stay order which had been issued by him as Administrator, Municipal Council, Sikar. The learned court also held that the acceptance of the amount of Rs. 1000/- by the accused is not proved. Observing that the theories propounded by the accused that the notes might have been planted by Omprakash Jalan in his diary when he was away, appears to be more probable, the learned Special Judge acquitted the accused respondent of the charges levelled against him. 7. We have heard the learned Public Prosecutor and the learned advocate for the accused respondent at length & have been taken through the record of the case. 8. In an appeal against acquittal, there are no limitation on the powers of this Court and this Court has got full powers to review at large the evidence upon which an order of acquittal is founded and to reach its own conclusion that upon that evidence, the order of acquittal should be reversed. But the courts have always exercised restraint and while dealing with an appeal against acquittal, the Court always gives proper weight and consideration to the views of the trial judge as to the credibility of the witnesses, the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial, the right of the accused to the benefit of doubt and the slowness of this Court in disturbing a finding of fact arrived at by the trial court, a finding of fact which could reasonably be arrived at on the evidence on record. 9. In the light of the above referred to well settled practice of the Court while dealing with an appeal against acquittal, we will proceed to deal with the arguments advanced before us. 10. The contention of the learned Public Prosecutor is that from the statement of PW 7 Omprakash Jalan along with the circumstances of the case, the demand of a sum of Rs. 1000/- as illegal gratification other than legal remuneration for vacating a stay order which had been issued on 31-7-1969, is clearly proved. 10. The contention of the learned Public Prosecutor is that from the statement of PW 7 Omprakash Jalan along with the circumstances of the case, the demand of a sum of Rs. 1000/- as illegal gratification other than legal remuneration for vacating a stay order which had been issued on 31-7-1969, is clearly proved. He also contents that from the statement of Shri Jalan PW 7 as well as from the statement of Durgaprasad PW 8, Bhawanisingh PW 8 and Motilal Dabi PW 9, the recovery of the notes from the pocket of the pant of the accused is proved and once it is proved that the accused handled the notes, then a statutory presumption under Section 4 (1) of the Prevention of Corruption Act, 1947 arises that the accused accepted or obtained or agreed to accept or attempted to obtain that gratification as a motive or reward a such as is mentioned in Section 161, IPC without consideration. 11. The only evidence about the demand and acceptance of a sum of Rs. 1000/ is that of Shri Omprakash Jalan PW 7. There is material on record that the accused respondent, who was the Administrator of the Municipal Council, Sikar, had issued the stay order Ex. P.15 on July 31, 1969. An application for vacation of the stay order was filed on behalf of Smt. Anguridevi on August 2, 1969. There is material on record that the constructions were taking place near the Collectorate and the Assistant Engineer (B and R) National Highway, Sikar, had addressed a letter Ex. P12 to the Collector bringing to the notice of the Collector that the Government notification dated 1-12-1968 is not being followed and the Collector was requested to intervene and see that the Government notification is strictly followed This letter is dated July 2, 1969. There is also material on record that the Collector had brought to the notice of the Administrator,the accused respondent, that constructions were being raised by Smt. Anguri Devi, wife of PW 7 Omprakash Jalan. Thereupon, the Overseer was directed to submit a report and on 26-6-1969, vide Ex. P14, a report was submitted by Shri Gokulchand. There is also material on record that the Collector had brought to the notice of the Administrator,the accused respondent, that constructions were being raised by Smt. Anguri Devi, wife of PW 7 Omprakash Jalan. Thereupon, the Overseer was directed to submit a report and on 26-6-1969, vide Ex. P14, a report was submitted by Shri Gokulchand. It is also clear from Ex.PI4 that on 5 8-1969 itself, a decision after taking into consideration the reply Ex P16 dated 2-8-1969 on behalf of Anguridevi had been taken that unless after a perusal of Patta a decision is taken, it will be proper to continue the stay order. Thus, on the day, that is on 5-8-1969 when the accused is said to have accepted the amount of Rs. 1000/-, the stay order was not vacated. That apart, once the Assistant Engineer brought to the notice of the Collector and it was Collector who had instructed the Administrator who was also the Additional District Magistrate looking to the circumstances of the case, it was not easy for the accused respondent to have vacated the stay order. Be that as it may, the question is as to whether only on the statement of Omprakash Jalan PW 7, the demand and acceptance of Rs.1000/- as illegal gratification by the accused can be held to be proved ? As already stated earlier, besides the statement of Omprakash PW 7, there is no evidence, direct or circumstantial, to corroborate his statement. Omprakash has stated that it was on 4-8-1969 that the accused demanded Rs. 1000/-. This date was not given by him either in his complaint Ex.P25 or in his earlier statements but he only stated so in cross-examination before the learned Special Judge. Omprakash Jalan stated that the accused demanded a sum of Rs. 1500/- for vacating the stay order and that thereafter, he had agreed to accept Rs. 1000/- and that too, on the next day. But he was confronted with Ex.P25 and the other material on record where he only stated that when the accused demanded Rs. 1000/-, he did not agree to pay it and only gave out to the accused that he will look into the matter. Thus, initially, whether the accused demanded Rs. 1500/-or only Rs. 1000/-, as stated in Ex P. 25, the statement of Omprakash Jalan is not consistent. 1000/-, he did not agree to pay it and only gave out to the accused that he will look into the matter. Thus, initially, whether the accused demanded Rs. 1500/-or only Rs. 1000/-, as stated in Ex P. 25, the statement of Omprakash Jalan is not consistent. As per the statement of PW 7 Omprakash Jalan, he went first to the office of the accused, the accused took him in the inside cabin which was near his chamber, first took Rs. 1000/- in his hand but then returned the amount saying that he will take it while going to his house. Though he has stated that he disclosed that thing to Motilal Dabi PW 9 and the two motbirs Durgaprasad PW 5 and Bhawanisingh PW 8 also, but they have not stated that Om Prakash Jalan also gave out that the accused had behaved in such a manner. It has also come in the statement of Omprakash Jalan that the accused gave out that there is danger and as such, he will not accept the amount in his office and that is why he wanted to take the currency notes of Rs. 1000/- in the way. Motilal Dabi admits that if this fact had been brought to his knowledge, he might have thereafter gone with the laying of the trap or the trap might not have been laid, he could not say. It is the case of the prosecution that the jeep of the accused was following the car in which the accused and Omprakash Jalan were going from the office to the house of the accused respondent. There was driver of the jeep also and he could have been the best witness as observed by the learned Special Judge to have atleast deposed that the accused boarded the car of Omprakash Jalan which was being driven by Jalan and, thereafter, again alighted from the car near about at Nani gate. He would have also said that when the accused boarded his own jeep. There is material on record that the driver of the jeep was there but when the accused went to inspect the site of some shops, the driver sought his permission and left away. Evidence could also have been led that when the accused left his office, he went with Omprakash Jalan in his car. There is material on record that the driver of the jeep was there but when the accused went to inspect the site of some shops, the driver sought his permission and left away. Evidence could also have been led that when the accused left his office, he went with Omprakash Jalan in his car. But no such evidence has been led and we have only the statement of Omprakash Jalan that the accused went in his car with him, his jeep followed him and the accused took a sum of Rs. 1000/- and then alighted from his car near Nani gate and went to his jeep. The proper course would have keeping a watch and intercept the accused in the way no sooner he alighted from the car and before he could board the jeep. Omprakash Jalan does state that after having handed over the notes to the accused he signalled to Motilal Dabi who was standing near the house of the accused and went away. Thus, only on the statement of Omprakash Jalan, it is not possible to hold that the accused accepted the amount while going in the car with Omprakash Jalan. 12. Acceptance of currency notes can also be proved by recovery. The case of the prosecution is that the notes were recovered from the small pocket of the pant under the belt in the right side. There is also material on record that the belt had to be opened and only then, the currency notes wrapped in a paper could be taken out from the pocket. Omprakash Jalan PW 7 has stated that when he gave the notes to the accused, the accused took the notes, kept them in a paper and then he kept the notes in his diary Ex. 5. It has already been stated earlier that it was also stated by him that in the office also, the accused had taken the notes, that he had handled the currency notes in his office as well but had returned them to Jalan for being handed over to the accused while going to his house. Durgaprasad PW 5, Bhawanisingh PW 8 and Motilal PW 9 all have stated the the currency notes were recovered from the pant pocket of the accused and that pocket was marked as X during the trial. Durgaprasad PW 5, Bhawanisingh PW 8 and Motilal PW 9 all have stated the the currency notes were recovered from the pant pocket of the accused and that pocket was marked as X during the trial. It has also come in that evidence that the pant, the bushirt and the handkerchief were taken in possession of and the accused was made to wear other clothes. It is common knowledge that anthracene powder is such invisible powder that it leaves its traces upon anything with which it comes in contact. If the notes would have been handed over to the accused by Omprakash Jalan in his car and the accused, even if he would have wrapped them in a paper and then kept them in the diary Ex. 5, anthracene powder must have been found on his fingers necessarily. Anthracene powder in good quantity was found in the diary Ex. 5 and the paper in which the notes are said to have been wrapped and the other papers which were found in the diary. If the accused would have kept the notes in his diary after taking them from Omprakash Jalan as alleged, then there must have been anthracene powder on his fingers. The absence of anthracene powder on the hands of the accused respondent also negatives the acceptance of the notes by the accused from Omprakash Jalan while going in latter's car. The case of the prosecution that the accused washed his hands in his own urine while urinating and also rubbed his hands with the soil, has been rightly disbelieved by the learned Special Judge. There is no mention of such a thing having been done by the accused either in Ex. P 1 or in the statements of the witnesses under Section 161 or Section 164 of the Code of Criminal Procedure. It has been stated by Durgaprasad PW 5 that when Rameshwarprasad, the photographer of the Forensic Science Laboratory was examining the hands of the accused in the laboratory, Bhawanisingh had given out that it is just possible that there may not be anthracene powder on the hands as he had washed his hands with his urine. Rameshwarprasad PW 1 does not state that any such thing was said. Rameshwarprasad PW 1 does not state that any such thing was said. That apart, if the accused would have washed his hands with his own urine, as alleged by the witnesses, then this fact would have been brought to the notice of Rameshwarprasad PW 1 and perhaps, the hands of the accused would not have been examined under ultra-violet rays. We are unable to place any reliance on the statement of the witnesses Motilal Debi PW 9 and Durgaprasad PW 5 that the accused washed his hands with his urine or rubbed them in the soil. Had any such thing happened, a memo would have been prepared immediately by Shri Debi. Not only that a memo was not prepared as already observed above, this fact does not find mention in any document. No doubt, the hands were examined at about 1.30 on August 6, 1969 and the notes are said to have been handled by the accused on August 5, 1969 at about 7.00 p.m. and in between this time, the accused might have brushed, might have gone to the toilet but this is not the case of the prosecution that the accused did so. 13. Durgaprasad PW 5 and Bhawanisingh PW 8, according to the learned Prosecutor, are independent witnesses and therefore, there is no reason to disbelieve their testimony so far as the recovery of the notes from the pant pocket of the accused is concerned. Durgaprasad is a neighbour of Omprakash PW 7. There is material on record that he was an office bearer of a political party and had gone with delegations to the Administrator, Municipal Council (the accused respondent) on several occasions and on some occasions, the outcome was not favourable. Similarly, Bhawanisingh is not a resident of Sikar and is a resident of village Trilokpura, 11 miles from Sikar. He knew Omprakash Jalan for the last about two to four years prior to occurrence through his cousin brother Govindsingh. That apart, as we shall presently show, the absence of anthracene powder either on the pocket of the pant or on the clothes of the accused is a serious infirmity in this case and that makes the case of the prosecution that the notes were recovered from the pant pocket of the accused, highly doubtful. That apart, as we shall presently show, the absence of anthracene powder either on the pocket of the pant or on the clothes of the accused is a serious infirmity in this case and that makes the case of the prosecution that the notes were recovered from the pant pocket of the accused, highly doubtful. At the cost of repetition, it may be stated that Omprakash Jalan PW 7 has stated that the accused took the notes in his car, wrapped them in a paper and then they were kept in a dairy Ex.5. It has also come in the evidence that immediately thereafter, the accused went to his jeep, Omprakash Jalan drove his car near the house of the accused, signalled the raid party about passing of the notes and went away. Only after ten to twelve minutes, the accused came driving his jeep. There is no evidence that after taking the notes boarding the jeep, the accused had gone somewhere else and thus had opportunity to wash his hands. If the accused would have become suspicious about the trap and if he would have washed his hands and changed his clothes, none could prevent him to have parted with the amount of Rs. 1000/- also. Therefore, on the material on record, it will be reasonable to infer that the accused came straight to his house, was intercepted near the gate. The pocket below the belt in the right side of a pant is such a pocket which, because of the belly, cannot be easily handled. To put currency notes in this pocket, one has to draw breath inside and only then, after applying his hands and opening the mouth of the pocket, anything can be inserted in it. Thus, if the notes would have been kept by the accused in this pocket, as is said to have been done, there must have been anthracene powder on the mouth of the pocket. It is also in evidence that the accused opened the buttons of his pant as well as his bushrit with his hands when he changed his clothes. Thus, if there would have been anthracene powder on the hands of the accused, suggestive of the handling of the notes by the accused, it was necessary that on his clothes also, there must have been traces of anthracene powder, to be detected under ultra violet rays. Thus, if there would have been anthracene powder on the hands of the accused, suggestive of the handling of the notes by the accused, it was necessary that on his clothes also, there must have been traces of anthracene powder, to be detected under ultra violet rays. Shri Rameshwarprasad PW 4, who had examined the pant Ex. 25 the bushirt Ex. 24 did not find any traces of anthracene powder. He also did not find any anthracene powder in the pocket which was marked X. Thus, the absence of anthracene powder on the hands, in the pant pocket, the pant and the bushirt, clearly shows that the notes were not recovered from the pocket and in the absence of check about the presence of anthracene powder, which is very valuable check in such cases where anthracene powder is applied, only on the testimony of the witnesses, we are unable to hold that the notes were recovered from the pant pocket of the accused. 14. Even if the notes would have been wrapped in a paper by the accused as alleged by Omprakash Jalan and the accused would have kept the paper and the notes in his diary in which anthracene powder was found in good quantity, even then it was necessary that there must have been traces of anthracene powder in the pocket. In the diary as well as on the paper Ex. 6 in which the notes are alleged to have been wrapped, good quantity of anthracene powder was found. Thus, both the sides of the paper could have come in contact with anthracene powder and if the notes in the paper would have been kept in the pocket, which fact has not been proved, it was necessary that there must have been traces of anthracene powder in the pocket marked X. Thus, it cannot be said that the notes were recovered from the pant pocket of the accused. 15. 15. In Raghubirsingh v. State of Punjab, AIR 1976 SC 91 , it has been observed that where a trap is laid on a public servant, it is desirable that the marked currency notes, which are used for the purpose of trap, are treated with phenolphthalein 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. In this authority, reliance was placed on Som Prakash v. State of Delhi, AIR 1974 SC 989 . In the instant case, anthracene powder was applied but the test under ultraviolet rays is negative and thus, we are unable to take a view contrary to one taken by the learned Special Judge that the prosecution has failed to prove that the accused accepted a sum of Rs. 1000/-. As already stated earlier, the defence case is that the notes were perhaps planted in the diary Ex. 5 when the accused had gone to inspect the site and the diary Ex. 5 was also lying in his jeep. The presence of anthracene powder on the diary including the notes and the absence of any anthracene powder on the hands and clothes of the accused probablises that the defence of the accused may be true. The accused is required to prove his defence by preponderance of probability. 16. The argument of the learned advocate that Section 4(1) of the Prevention of Corruption Act, 1947, is attracted and statutory presumption arises thereunder, has no force, because the question of presumption under Section 4(1) of the aforesaid Act would have only arisen if we would have held that it is proved that the accused accepted or obtained the amount of Rs. 1000/- as illegal gratification other then legal remuneration. 17. We find no force in this State appeal and it is hereby dismissed.Appeal Dismissed. *******