CHANDER DARYANI v. STATE OF M. P. — 1983 DIGILAW 365 (MP)

S. K. SETH, J. ( 1 ) THE Special Judge, Rewa i. e the First Additional Sessions Judge, Rewa vide his judgment dated 30-1-1979 passed in Special Case No. 4 of 1978 convicted accused appellant Chander Daryani under section 161 of the Indian Penal Code and section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act and sentenced him to rigorous imprisonment for two years on two counts with a direction that the sentences would run concurrently. This appeal by the accused-appellant is directed against his abovesaid conviction and sentence. ( 2 ) THE accused-appellant was working as an Assistant Jailor at Central Jail Rewa at the relevant time in the year 1977. P. W. 1 Ramautar had worked as a warder in the said jail during the period 1974 to 1970. It was clear from the evidence produced in the case that after he had committed an act of dereliction in his duty during the period of emergency, he was removed from service in September 1976. It was also clear from the evidence that in October, 1977 he made an application to the Inspector General of Prisons at Bhopal for his reappointment and obtained a direction from the latter to the Jail Superintendent at Rewa to the effect that he be reappointed on any vacant post of a warder in the said jail. ( 3 ) THE case of the prosecution against the accused-appellant was that when on the strength of the abovesaid direction issued by the Inspector General of Prisons in his favour P. W. 1 Ramautar approached the jail authorities at Rewa, and the jail authorities directed him to see the accused- appellant and obtain from him information as to whether any post of a warder was vacant and he therefore saw the accused-appellant on 18-11-1977 and asked him to do the needful in the matter, the accused-appellant demanded a bribe of Rs. 200/- from him stating that in case the said amount was not paid he would give a report to the effect that no post of a warder was vacant in the jail. According to the case of the prosecution, the accused-appellant was also looking after the work of Establishment Officer at that time. On P. W. 1 Ramautar making a request to him that he was a poor person and could not pay the amount of Rs. According to the case of the prosecution, the accused-appellant was also looking after the work of Establishment Officer at that time. On P. W. 1 Ramautar making a request to him that he was a poor person and could not pay the amount of Rs. 200/- in a lump sum, the accused- appellant agreed to accept Rs. 50/- in the first instance and the balance amount of Rs. 150/- afterwards. ( 4 ) THE further case of the prosecution against the accused-appellant was that thereafter he narrated the incident to an ex-MISA detenu P. W. 6 Charu Jhan and with his help made written complaint (Ex. P/i) about the demand for bribe made by the accused-appellant to the local branch of the vigilance department at Rewa on 19-11-1977. It was mentioned in the said complaint that the accused appellant had agreed to accept Rs. 50/- as stated above from him the same day at about 12-1 in the noon. After the receipt of the said complaint, the local office of the vigilance department decided to lay a trap and made the necessary arrangements for the purpose. As usual, the currency notes were made available by P. W. 1 Ramautar. The same were treated with phenolphthalein Powder. The necessary instructions were given to the members of the trap party. Ex. P/2 was the preliminary Panchnama that was prepared in the said regard. The trap party reached the premises of the Central Jail at Rewa at the relevant time. However, the trap did not materialise for the reason that P. W. 1 Ramautar was asked by the accused-appellant to come to his quarter at 3. 00 in the afternoon and pay the amount of Rs. 50/- to him there. ( 5 ) THEREAFTER, according to the case of the prosecution, when P. W. 1 Ramautar was taking tea in a hotel in the city, the accused appellant met him there and again asked him to come to his quarter at 3. 00 in the afternoon. He told him that he would accept Rs. 50/- on that day and would accept the balance amount of Rs. 150/- afterwards. After this, P. W. 1 Ramautar again went to the local office of the vigilance department. At the said office on the information given by P. W. 1 Ramautar fresh arrangements for laying the trap were made. He told him that he would accept Rs. 50/- on that day and would accept the balance amount of Rs. 150/- afterwards. After this, P. W. 1 Ramautar again went to the local office of the vigilance department. At the said office on the information given by P. W. 1 Ramautar fresh arrangements for laying the trap were made. The members of the trap party reached a place near the quarter of the accused-appellant at the appointed hour. P. W. 1 Ramautar went to the quarter of the accused-appellant and called out his name. When the accused-appellant came out from inside his quarter, P. W. 1 Ramautar after talking to him for some time handed over Rs 50/- to him. The accused-appellant put the money in the pocket of his full pant and went inside his quarter. After this, on a signal given by P. W. 1 Ramautar, members of the trap party reached there. On being questioned by the Vigilance Inspector the accused-appellant took out Rs. 50/- from the pocket of his pant and handed over the same to the Inspector. The usual Panchnama of the proceedings was prepared. Ex. P/3 was the said Panchnama. ( 6 ) IT was not disputed by the accused-appellant that he had received Rs. 50/- from P. W. 1 Ramautar in his quarter in the afternoon of 19-11-1977 as alleged by the prosecution. It was, however denied by him that the said amount had been received by him as a bribe. According to him, after his removal from service during the emergency P. W. 1 Ramautar had borrowed Rs. 50/- from him and that it was the said amount, which was returned by P. W. 1 Ramautar to him on 19- 11-1977. In the circumstances, as acceptance of money was not in dispute, the crucial question that arose for determination in the case was whether the accused-appellant received the money as bribe or whether the said money constituted repayment of the amount that P. W. 1 Ramautar had earlier borrowed from him. ( 7 ) IT is noteworthy that the abovesaid explanation relied on by the accused-appellant was not something that was thought of by him subsequently-the same was offered by him to the Vigilance Inspector immediately after the money was seized from him on 19-11-1977. It is also noteworthy that the accused-appellant produced a stamped receipt dated 3-7-1977 (Ex. ( 7 ) IT is noteworthy that the abovesaid explanation relied on by the accused-appellant was not something that was thought of by him subsequently-the same was offered by him to the Vigilance Inspector immediately after the money was seized from him on 19-11-1977. It is also noteworthy that the accused-appellant produced a stamped receipt dated 3-7-1977 (Ex. D/2) showing that P. W. 1 - Ramautar had borrowed an amount of Rs. 50/- from him on the said date. A part of the signature of P. W. 1 Ramautar on the said receipt was on the stamped portion and part outside it. The receipt was put to P. W. 1 Ramautar in his cross-examination. He denied that the signature in question was his. But, then, there was evidence produced on behalf of the defence of D. W. 1 Ravi Datt Rawat who stated that the body of the receipt had been scribed by him and P. W. 1 Ramautar put signature on the same in his presence after receiving the amount of Rs. 50/- from the accused- appellant. The said witness was working as a warder in the Jail at the relevant time According to him P. W. 1 Ramautar had at first come to him and wanted to borrow Rs. 50/- from him. As he was not in a position to advance the money to P. W. 1 Ramautar, he took him to the accused-appellant who gave the money to him after getting the above said receipt executed by him. It is significant that the signature of P. W. 1 Ramautar on receipt Ex. D/2 were similar to his signatures on Ex. P/i complaint lodged by him with the local branch of the vigilance department on 19-11-1977. In fact, from the suggestion that was put by the prosecution to D. W. 1 Ravi Datt Rawat in his cross- examination it was clear that the prosecution itself appeared to be of the view that the signatures on Ex. D/i, receipt were those of P. W. 1 Ramautar. The suggestion given to the said witness was that some blank paper had already contained the signatures of P. W. 1 Ramautar and the same was utilized by the accused-appellant for creating the receipt. It is needless to say that the suggestion was denied by the witness. D/i, receipt were those of P. W. 1 Ramautar. The suggestion given to the said witness was that some blank paper had already contained the signatures of P. W. 1 Ramautar and the same was utilized by the accused-appellant for creating the receipt. It is needless to say that the suggestion was denied by the witness. Moreover, if that was the case of the prosecution, it was necessary for it to have the same brought out in the evidence produced on its behalf. Not a word having been put to P. W. 1 Ramautar in that regard there appeared to be no reason to disbelieve the evidence produced by the accused-appellant regarding the circumstances in which the stamped receipt had come to be executed by P. W. 1 Ramautar in favour of the accused-appellant. ( 8 ) THE only direct evidence produced in the case on the point relating to the alleged demand of bribe by the accused-appellant is that of P. W. I Ramautar. In the facts and circumstances of the case, his evidence was certainly not such as could be readily accepted without seeking corroboration of the same from some independent source. It appeared unnatural and improbable that when the accused-appellant had already agreed to accept Rs. 50/- in the first instance and the remaining amount of Rs. 150/- afterwards as bribe from P. W. 1 Ramautar, the accused- appellant would not take the money from the accused-appellant in the hotel itself. One Moorti Acharya was said to be with P. W. 1 Ramautar all through out including at the hotel where the alleged demand of bribe had been made by the accused-appellant from P. W. 1 Ramautar. The said person appeared to be an independent person and his evidence would have been of great value in making a proper assessment of the evidence of P. W. 1 Ramautar. But, surprisingly, though the said person has been cited as one of the witnesses, and was also present on one or two days of hearing, he was given up by the prosecutor for no rhyme or reason. It is not unreasonable to draw the inference that had he been examined as a witness he would not have-supported the prosecution on the point in question. It is not unreasonable to draw the inference that had he been examined as a witness he would not have-supported the prosecution on the point in question. ( 9 ) IN the opinion of this Court, the explanation offered by the accused-appellant to the effect that he had not received the money as bribe, but had received the same as repayment of the amount that P. W. 1 Ramautar had earlier borrowed from him stood sufficiently probablised from the evidence produced in the case and that the Special Judge was not justified in rejecting the said ex p Ia nation. ( 10 ) FOR the reasons stated above, the appeal is allowed. The convictions and sentences of the accused-appellant under Section 161 of the Indian Penal Code and Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act are set aside and he is acquitted. Appeal allowed. .