JUDGMENT 1. - This is an appeal filed by Ramkumar Sharma against the judgment of the Special Judge, for Anti-Corruption Department Cases, Rajasthan, Jaipur, dated September 27,1975, by which the appellant was convicted under section 161, I.P.C. and section 5(l)(d) read with section 5(2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default of payment of fine to further suffer rigorous imprisonment for one month on the first count and on the second to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default of payment of fine to further suffer rigorous imprisonment for three months. Both the substantive sentence were, however, ordered to run concurrently. 2. The prosecution case against Ram Kumar appellant was as follows : Santokh Singh, complainant, had filed two criminal cases in the court of the Munsiff Magistrate, Raisinghnagar. In one case Santokh Singh v. Murli Dhar & others , the accused were ordered to be summoned by the Magistrate to appear in his court. In pursuance of the order of the Magistrate, Ram Kumar appellant, who was working on the post of Criminal Clerk, had to issue process to the accused persons. Santokh Singh approached the appellant and asked him to issue processes to the accused persons. The appellant demanded a bribe of Rs. 12/-. from Santokh Singh for issuing the processes. The Reader of the Court also demanded a sum of Rs. 30/-, from Santokh Singh for getting his witnesses examined. Santokh Singh did not like to give bribe to the appellant and to the Reader He, therefore, approached the Additional Superintendent of Police, Anti-Corruption Department, Ganganagar, On August 29,1973 and presented an application Ex. P. 2 for laying a trap. Along with the application he produced currency notes of Rs. 42/-, before the Additional Superintendent of Police, A.C.D. who, thereupon, called for two respectable persons Rameshwar Lal and Raja Ram and in their presence initialled tie said currency-notes of Rs. 42/-, and got them dusted with phenolphthalein powder. The currency notes thereafter were handed over to Santokh Singh for giving them to the appellant and the Reader on demand, vide delivery memo Ex. P. 4. The Additional Superintendent of Police, A C.D. Ganganagar, then went to Raisinghnagar for laying a trap against the appellant and the Reader. 42/-, and got them dusted with phenolphthalein powder. The currency notes thereafter were handed over to Santokh Singh for giving them to the appellant and the Reader on demand, vide delivery memo Ex. P. 4. The Additional Superintendent of Police, A C.D. Ganganagar, then went to Raisinghnagar for laying a trap against the appellant and the Reader. Santokh Singh went in advance along with Rameshwar Lal and Raja Ram Motbirs and some employees of the Anti-Corruption Department. Rameshwar Lal and Raja Ram ware directed to closely follow the decoy. After reaching Raisinghnagar, the Additional Superintendent of Police left the jeep car outside the boundary wall of the court premises and waited for the agreed signal. After half an hour he received the signal and hurriedly rushed to the spot where Ram Kumar appellant and Achan Babu were standing. At the sight, of the Additional Superintendent of Police, Ram Kumar appellant tried to run away from there but Rameshwar Lal and Achan Babu caught hold of his body. The Additional Superintendent of Police disclosed his identity to the appellant and asked him whether he had taken the currency notes of Rs. 12/-, as bribe from Santokh Singh. The appellant replied in the affirmative. So his hands were dipped in sodium carbonate mixture that was prepared there and then. The hand wash was filed in two glasses. It was found positive for phenolphthalein powder, because it turned pink. The hand wash was preserved and sealed in two separate bottles vide memo Ex. P. 6. Thereafter, the appellant was asked to produce the initialled currency notes before the Additional Superintendent of Police. The appellant produced the said sum from the pocket of his pantaloon which he was wearing at that time. The Additional Superintendent of Police got the numbers of the said currency-notes tallied with the numbers mentioned in the delivery memo. As the numbers tallied, the currency notes were seized vide memo of seizure Ex. P. 5. The pantaloon Article 4, which the appellant was wearing at that time, was taken off his body and its pocket also was washed in sodium carbonate mixture. The wash was found positive for phenolphthalein powder and, therefore, it was preserved and sealed vide memo Ex. P. 7. P. 5. The pantaloon Article 4, which the appellant was wearing at that time, was taken off his body and its pocket also was washed in sodium carbonate mixture. The wash was found positive for phenolphthalein powder and, therefore, it was preserved and sealed vide memo Ex. P. 7. The Additional Superintendent of Police thereafter took the record of the case Article 9 into his possession from the court of the Munsiff Magistrate, Raisinghnagar and arrested the appellant. The Additional Superintendent of Police then came back to his headquarters and lodged a first information report Ex. P 1 on the basis of which a criminal case was registered against the appellant under section 161, I.P.C. and Section 5(2) read with section 5(l)(d) of the Prevention of Corruption Act. The initialled currency notes of Rs. 30/-, which were with the decoy for delivery to the Reader upon demand could not be handed over to him and, therefore, they were allowed to remain in the possession of Santokh Singh decoy. The additional Superintendent of Police collected other necessary evidence against the appellant and eventually filed a charge-sheet in the court of the Special Judge for Anti-Corruption Cases, Jaipur for the aforesaid offences. The Special Judge Anti-Corruption cases tried the appellant and found him guilty of both the offences punishable under section 161, I.P.C. and section 5(2) read with section 5(l)(d) of the Prevention of Corruption Act. He accordingly convicted and sentenced the appellant in the manner indicated above. Aggrieved by his conviction and sentence, the appellant has preferred this appeal. 3. I have carefully gone through the record and heard Mr. Jagdeep Dhankar, learned counsel for the appellant, and Mr. S.B. Mathur, Public Prosecutor, for the State. Firstly, it has been contended on behalf of the appellant that a false criminal case has been foisted on the appellant on account of enmity, because the appellant neither demanded any bribe from Santokh Singh, nor accepted a sum of Rs. 12/-, as illegal gratification. It was further urged that the sum of Rs. 12/-, was put on the table of the appellant by the decoy in order to implicate him falsely in this concocted case. The appellant, on seeing the money lying on the table, picked it up and called Santokh Singh forgiving it back to him. 12/-, as illegal gratification. It was further urged that the sum of Rs. 12/-, was put on the table of the appellant by the decoy in order to implicate him falsely in this concocted case. The appellant, on seeing the money lying on the table, picked it up and called Santokh Singh forgiving it back to him. The appellant told Santokh Singh in clear and express terms that the money had to be deposited along with a tender in the court but soon, thereafter, the Additional Superintendent of Police Anti-Corruption Department came in and levelled a false charge that the appellant had accepted bribe from the decoy. The Public Prosecutor, on the other hand, urged that there is ample cogent and reliable evidence on the record that the appellant demanded a sum of Rs. 12/-, from Santokh Singh, as illegal gratification , for issuing processes to the accused persons in a criminal case Santokhsingh v. Murlidhar and others and accepted the said amount as a bribe, which was, later on, produced by him from the pocket of his pantaloon before the Additional Superintendent of Police, Anti-Corruption Department and the Motbirs. The Public Prosecutor further argued that the Special Judge Anti-Corruption committed no error in convicting the appellant on the basis of the overwhelming credible evidence led by the prosecution to prove its case. According to the submission `of the learned Public Prosecutor, the plea of ignorance set by the appellant was an after-thought and was rightly rejected by the Special Judge. 4. I have given my anxious consideration to the rival contentions mentioned above. The first important question that arises for determination in this appeal is whether the appellant had accepted or obtained for himself any gratification other than legal remuneration from Santokh Singh, because if this fact is proved, it shall be presumed, unless the contrary is shown, that he accepted or obtained such gratification as motive or reward for doing an official act of issuing processes to the accused persons in a case Santokh Singh v. Murli Dhar and others . The burden of proof is on the prosecution to establish the acceptance or the agreement to accept the gratification other than legal remuneration. The burden of proof is on the prosecution to establish the acceptance or the agreement to accept the gratification other than legal remuneration. Such a burden is not displaced by section 4(1) of the Prevention of Corruption Act, which has introduced an exception to the general rule as to the onus of proof in criminal cases and shifted the burden on to the accused requiring him to prove that it was not as a motive or a reward that the gratification was obtained. The prosecution has examined PW 2 Rameshwar Lal, PW 3 Raja Ram, PW 5 Nahar Singh, PW 6 Achan Babu, PW 7 Santokh Singh decoy, PW 8 Narayan Singh, Additional Superintendent of Police, Anti-Corruption Department to prove that currency-notes of the value of a sum of Rs. 12/-, were accepted by the appellant from Santokh Singh as bribe. It is, therefore, necessary to examine the evidence of these witnesses with great care and caution in order to find out whether a sum of Rs. 12/-, was demanded by the appellant from Santokh Singh and whether this sum was accepted or obtained by the appellant as illegal gratification for doing an official act of issuing processes to the accused persons in a criminal case Santokh Singh v. Murli Dhar . 5. Santokh Singh, PW 7 stated in his deposition at the trial that on August 28, 1973, Ram Kumar appellant demanded a sum of Rs. 12/-, from him as illegal gratification for issuing processes against the accused persons in his criminal case which was pending in the court of the Munsiff-Magistrate, Raisinghnagar. According to his version, this sum was demanded from him by the appellant in his room wherein he used to work as Criminal Clerk. Santokh Singh further stated that the appellant asked him to give the bribe separately in the absence of other clerks so that the other clerks may not share it. The above statement given by Santokh Singh is not corroborated by any independent witness. The appellant admitted in his statement at the trial that on August 28, 1973, Santokh Singh had come in his room and asked him about the amount to be deposited as witness expenses in his criminal case and about the process-fee that was to be paid in his case against Murli Dhar and others. Santokh Singh was drunk at that time. Santokh Singh was drunk at that time. The appellant asked him to go out of the room as he was drunk but Santokh Singh did not go. So the appellant caused him to be taken out of the room in the presence of other clerks, viz., Daulal and Mukna Ram, who were also sitting in that very room. After a short while Mathura Das Advocate for Santokh Singh came in the room and asked the appellant how much amount was to be deposited as witness expenses and how much process-fee was to be paid in the criminal case filed by Santokh Singh against Murli Dhar and others. The appellant told Mathura Das Advocate that Santokh Singh had quarrelled with him a short while ago under the influence of liquor. Mathura Das Advocate pacified the appellant. The appellant thereafter informed Mathura Das, Advocate, that Rs. 10/-, were to be deposited as witness expenses and Rs. 2/-, were required for process-fee. The aforesaid plea set up by the appellant is established by the evidence of Dau Lal Clerk, DW 2 and Mathura Das, Advocate. D.W. 4. Mathara Das Advocate stated in his deposition that Santokh Singh came to him and informed him that a quarrel took place between him and the Criminal Clerk. Dau Lal also stated that on August, 28, 1973. Santokh Singh had come in the room of the appellant at about 2 or 2.30 p.m. and asked the appellant about the sum to be deposited as witness expenses. Santokh Singh was drunk at that time. He became enraged when the appellant told him that the date of hearing was fast approaching and that he had become late in depositing the witness expenses and in filing the process-fees. Thereupon, the appellant turned him out of the room. Although Santokh Singh denied that any quarrel took place between him and the appellant inside the room on August 28, 1973, but he was confronted with and contradicted by portion A to B of his previous statement Ex. D. 3 which he gave before the Munsiff Magistrate in connection with an inquiry against Hari Ram, Reader and wherein he admitted that he was turned out of the room at the instance of the appellant. When confronted with the above portion of his statement Santokh Singh could not afford any reasonable explanation for the inconsistency between his two statements. D. 3 which he gave before the Munsiff Magistrate in connection with an inquiry against Hari Ram, Reader and wherein he admitted that he was turned out of the room at the instance of the appellant. When confronted with the above portion of his statement Santokh Singh could not afford any reasonable explanation for the inconsistency between his two statements. He merely stated that the Munsiff Magistrate wrongly recorded this fact in portion A to oof his statement Ex. D. 3. Hence the plea of the appellant that Santokhsingh was drunk and he picked up quarrel with the appellant and the appellant caused him to be turned out of the room appears to be true and probable. Apart from this, the appellant has impeached the credit of Santokh Singh in cross-examination. Santokh Singh admitted in his cross-examination that he was challaned under section 34 of the Police Act on November 1, 1972 by Murli Dhar, Station House Officer for being found drunk in public and that he was convicted and sentenced to pay a fine of Rs. 25/-, in that case. He further admitted that another criminal case under section 34 of the Police Act is pending against him and that he caused traps to be laid against other persons-Ravindra Patwari and Ramesh Chandra, L.D.C. Collectorate, Ganganagar and no challan was filed against Ramesh Chandra. Consequently, I am of the view that the evidence of Santokh Singh relating to the demand of bribe from him on August 28, 1973, is far from being satisfactory. Had any bribe been demanded by the appellant from Santokh Singh, the latter would not have been turned out of the room at the instance of the appellant. There is another circumstances which throws considerable doubt on the testimony of Santokh Singh on this point. The circumstance is that if any bribe had been demanded from Santokh Singh by the appellant on August 28, 1973, the former would have surely disclosed this fact to his Advocate Mathura Das the very day. The Special Judge Anti-Corruption, therefore, committed an error in placing reliance on the solitary testimony of Santokh Singh on the point of demand of bribe. 6. There is no evidence at all on the record that the appellant demanded a sum of Rs. 12/-, as illegal gratification from Santokh Singh immediately before the initialled currency-notes were handed over to him. The Special Judge Anti-Corruption, therefore, committed an error in placing reliance on the solitary testimony of Santokh Singh on the point of demand of bribe. 6. There is no evidence at all on the record that the appellant demanded a sum of Rs. 12/-, as illegal gratification from Santokh Singh immediately before the initialled currency-notes were handed over to him. Raja Ram P.W.3 claimed to have been with Santokh Singh decoy at the time when the latter had gone inside the room wherein the appellant was working as Criminal Clerk on August 29, 1973. The evidence of Raja Ram is that he and Santokh Singh approached Ram Kumar appellant who was sitting in the room in the court premises. Santokh Singh gave a sum of Rs 12/-, to the appellant who did not say anything at the time of accepting the currency-notes. Raja Ram admitted in his cross-examination that Santokh Singh while Santokh Singh handed over the currency-notes to Ram Kumar told the latter that he was giving this money for witness expense and the process-fee. He further admitted that Santokh Singh put the money on the table and went away and did not give the money in the hand of the appellant. Santokh Singh, on the other hand, stated that currency-notes of Rs. 12/-, were passed over to the appellant outside the room while standing near a wall. He further stated that as soon as the appellant came out of the room, he demanded the money and on his demand the former handed over the currency notes of Rs. 12/-, to the appellant. In this manner, the evidence of Raja Ram and Santokh Singh is highly contradictory to each other. It will not be out of place to mention that Raja Ram was not declared hostile in the trial court. Hence, there is no reason to disbelieve his evidence, especially when according to the prosecution itself he was accompanying Santokh Singh from the very start. The other witnesses, viz. P.W.5 Nahar Singh, P.W.6 Achan Babu and P.W.8 Narayan Singh did not say anything about the demand of bribe made by the appellant immediately before the handing over of the currency-notes to him. These witnesses were admittedly not with Santokh Singh decoy at the time when the currency-notes were alleged to have been passed over to the appellant. P.W.5 Nahar Singh, P.W.6 Achan Babu and P.W.8 Narayan Singh did not say anything about the demand of bribe made by the appellant immediately before the handing over of the currency-notes to him. These witnesses were admittedly not with Santokh Singh decoy at the time when the currency-notes were alleged to have been passed over to the appellant. They were standing at some distance from where it was not possible for them to hear the talks, if any, that took place between the appellant and Santokh Singh decoy. Consequently, I have no hesitation in holding that the prosecution could not prove beyond reasonable doubt that a sum of Rs. 12/-, was demanded by the appellant from Santokh Singh as bribe for issuing processes to the accused persons in criminal cases filed by Santokh Singh against Murli Dhar and others. Not only the story of demand of bribe by the appellant from Santokh Singh decoy is not proved but even the story of payment of a sum of Rs. 12/-, by Santokh Singh to the appellant also is not proved beyond reasonable shadow of doubt. As stated earlier, the evidence of Santokh Singh at the trial was that the amount of Rs. 12/-, was passed over by him to the appellant outside the room near a wall on August 29, 1973, upon latter's demand outside the room near a wall. This fact does not find corroboration from the evidence of Raja Ram P.W.3, who had accompanied Santokh Singh to the room of the appellant at the instance of the Additional Superintendent of Police, Anti-Corruption Department. Raja Ram contradicted the version given out by Santokh Singh on this point by stating that Santokh Singh put the currency-notes of Rs. 12/-, on the table of the appellant and did not pass over this money to the hands of the appellant. He further stated that while parting with the money Santokh Singh told Ram Kumar that he was giving the money for witness expenses and process-fees. 12/-, on the table of the appellant and did not pass over this money to the hands of the appellant. He further stated that while parting with the money Santokh Singh told Ram Kumar that he was giving the money for witness expenses and process-fees. The above statement of Raja Ram, which he made in his cross-examination is quoted below in extenso : " esjs vnkyr esa 164 esa c;ku gqvk FkkA ;g lgh gS fd bl ih lkgc us gedks dgk FkkA fd rqe uksV nsrs gq, Hkh nsyuk o larks"kflag o jkedqekj dh ckrphr Hkh lquukA eSa Hkh larks[kflag ds lkFk lkFk gh jkedqekj ckcw ds dejs ds vanj x;k FkkA dejk ftlesa jkedqekj csBk gqvk Fkk cjkens ds vanj gh cuk gqvk gSA ml dejs esa jktdqekj ds vykok pkj ikWap ckcw vkSj cSBs FksA larks[kflag us :i;s nsrs oDr eqyfte jkedqekj ls ;g dgk Fkk fd [kpkZ ryokus ds :i;s ns jgk gwWaA larks[kflag :i;s gkFk esa nsdj ugha vk;k cfYd ogka Vsfcy ij j[kdj vk x;kA larks[kflag dejs ls fudydj tsy dh rjQ ugha x;kA cfYd gksVy dh rjQ x;kA " Rameshwar Motbir P.W. 2 also admitted that he did not see Santokh Singh handing over currency-notes to the appellant. According to his version, Santokh Singh gave a signal by his hand that he had paid the amount to the appellant. Rameshar Lal further admitted in his cross-examination that Ram Kumar appellant and Santokh Singh came together out of the room in the varendah in front thereof and went away towards the wall of prison, the hight of which was about 51/2 or 6 ft. He further admitted that he could not see what was going on the other side of the wall where Santokh Singh and the appellant were standing. Hence, the evidence of this witness also is not of any value regarding the payment of the initialled currency-notes by the complainant to the appellant. 7. Another Motbir examined by the prosecution is Achan Babu P.W.6. He claimed to have gone along with Rameshwar Lal at the instance of the Additional Superintendent of Police Anti-Corruption Department. He saw Ram Kumar appellant and Santokh Singh coming out of the room and standing near a wall. Rameshwar gave a signal to him that currency-notes have been handed over to Ram Kumar by Santokh Singh. He claimed to have gone along with Rameshwar Lal at the instance of the Additional Superintendent of Police Anti-Corruption Department. He saw Ram Kumar appellant and Santokh Singh coming out of the room and standing near a wall. Rameshwar gave a signal to him that currency-notes have been handed over to Ram Kumar by Santokh Singh. In his cross-examination Achan Babu tried to make an improvement upon his statement in-examination-in-chief by stating falsely that he saw Santokh Singh giving currency notes to the appellant but he became sure about passing of the money only when Rameshwar gave a signal to him. Achan Babu had at first stated in his cross-examination that he saw Santokh Singh giving a signal but he was sure about delivery of the money to the appellant when Rameshwar had given the signal. After giving the above statement, he changed his version by stating that he himself had seen Santokh Singh handing over currency-notes to the appellant. When cross-examined further, he admitted that there was a wall between him and Santokh Singh at the time of delivery of the currency notes and that he could not say whether the height of the wall was 6 ft. In my opinion, no reliance can be placed on the testimony of such a witness,who could change his version as and when he liked. There is another circumstance which throws considerable doubt on the testimony of Achan Babu regarding his claim to be an eye-witness to the delivery of the currency-notes to the appellant by Santokh Singh. The circumstance is that he stated in his cross-examination that he had pointed out the place to the Additional Superintendent of Police, Anti-Corruption Department from where he had eye-witnessed the delivery of the currency-notes to the appellant. But, curiously enough, the Additional Superintendent of Police, Anti-Corruption Department did not show such place in the site-plan where money was passed over to the latter. Hence, from a careful review of the entire evidence of the aforesaid witnesses, I have come to the conclusion that the prosecution could not even establish the story of payment of initialled currency-notes to the appellant beyond reasonable doubt. 8. Hence, from a careful review of the entire evidence of the aforesaid witnesses, I have come to the conclusion that the prosecution could not even establish the story of payment of initialled currency-notes to the appellant beyond reasonable doubt. 8. In Sita Ram v. State of Rajasthan, AIR 1975 SC 1432 their Lordships of the Supreme Court were pleased to observe that the rule of presumption laid down in section 4 (I) of the Prevention of Corruption Act cannot be availed of for convicting the appellant, if the story of demand of bribe by the appellant from the complainant and the story of payment of money by the complainant is not proved beyond reasonable doubt by the prosecution. The Public Prosecutor strenuously urged before me that the initialled currency-notes were produced by the appellant himself from the pocket of his pantaloon before the Additional Superintendent of Police, Anti-Corruption and the hands of the appellant and the pocket of his pantaloon when dipped into sodium carbonate mixture changed colour and were found positive for phenolphthalein powder and so it may be safely presumed from these facts that illegal gratification other than legal remuneration was accepted or obtained by the appellant from Santokh Singh. The above contention has no force, because even if/it is taken to be proved that the appellant did accept a sum of Rs. 12/-, from Santokh Singh the explanation given by the appellant was more probable than the version of the prosecution. In the circumstances of this case, the explanation given by the appellant at the trial was that Santokh Singh come to him in his room along with Raja Ram and put currency-notes of Rs. 12/-, on his table and started from there while saying that the amount pertained to witness expenses and the process-fee. The appellant saw the money lying on the table. He at once got up and picked the money and came out of the room to inform Santokh Singh that the latter had to fill up a form and deposit the amount in the court. He called Santokh Singh but the latter did not pay any heed to his call. Thereupon, he went after Santokh Singh and reached the hotel of Kashi Ram but he was caught by the Additional Superintendent of Police and his party. He called Santokh Singh but the latter did not pay any heed to his call. Thereupon, he went after Santokh Singh and reached the hotel of Kashi Ram but he was caught by the Additional Superintendent of Police and his party. It will not be out of place to mention that under the law the appellant was not required to establish the truth of his explanation with the same degree of certainty with which the guilt of an accused is established. It was sufficient for him to establish the truth of his version by preponderance of probabilities as laid down in Mahadu Rupla Deore v. State of Maharashtra, 1996 CAR (SC) 338 . by their Lordships of the Supreme Court. The appellant's version finds support from the statement of Raja Ram Motbir PW 3 as indicated above, because Raja Ram admitted in his cross-examination that Santokh Singh put the currency notes of Rs. 12/-, on the table while telling the appellant that he was giving this for witness expenses and process-fees. The version given out by the appellant is further corroborated by the testimony of Daulal Clerk DW 2. Apart from this the explanation given out by the appellant was not an after-thought because Nahar Singh PW 5 admitted in his cross-examination that the appellant told the Additional Superintendent of Police, Anti Corruption Department at the earliest opportunity that he had not accepted any bribe, but Santokh Singh had given the money for witness expenses and process-fees Similar is the evidence of Nahar Singh PW 5 and Achan Babu PW 6. Shri Narayan Singh, Additional Superintendent of Police also admitted that the appellant had told him there and then that Santokh Singh had given money for witness expenses and process-fees. Narayan Singh made a note of all that was disclosed to him in the memo of recovery of currency notes Ex. P.5. Hence, in these circumstances, the explanation given by the appellant appears to be more probable than the version of the prosecution. 9. The result of the above discussion is that the prosecution miserably failed to bring guilt home to the appellant under section 161, I P.C. and section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act beyond reasonable doubt. 9. The result of the above discussion is that the prosecution miserably failed to bring guilt home to the appellant under section 161, I P.C. and section 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act beyond reasonable doubt. I, therefore, accept the appeal filed by Ram Kumar, set aside his conviction and sentences under sections 161, I.P.C. and 5 (2) read with section 5 (1) (d) of the Prevention of Corruption Act and acquit him of both the charges. The appellant is on bail. He need not surrender to his bail bonds, which are hereby cancelled.Appeal Accepted. *******