Shiv Nandan v. State — 1989 DIGILAW 317 (RAJ)

FAROOQ HASAN. J.— In this Criminal Appeal, the judgment dated 30. 11.1981 of the Special Judge (Anti-Corruption Cases) Rajasthan, Jaipur convicting the appellant, Shiv Nandan, under Sec. 5(1)(d)(2) of the Prevention of Corruption Act, 1947, (Act for short) and S. 161, IPC. & sentencing him to undergo one years R. I. with a fine of Rs. 300/-(in default, further 3 months R.I.) on each counts is sought to be set aside. 2. Shiv Nandan Sharma, the appellant was a clerk in the Office of the Assistant Engineer, (AEN) Rajasthan State Electricity Board (RSEB), Behror having official duty to prepare the bills of consumers. One, Ram Avtar who was having an electrical connection in his fathers name had been issued a bill (Ex. P. 1) by the Assistant Engineer, R.S.E.B. Behror to the tune of Rs. 1200.65p. payable by 29.3.1976-which according to him (Ramavtar) was too much excessive more than the amount due if any. Thus, upon receiving the bill (Ex. P,l). the prosecution alleged. Ramavtar (decoy) went to the Office of the AEN, RSEB, Behror on 25.3.1976 and moved an application (Ex.P.2) in his fathers name describing the bill (Ex P.l) in a sum of Rs. 1200.65p. to be incorrect being excessive, and requested to correct the same. The prosecution alleged that the application (Ex.P.2) was given to the appellant who demanded a bribe of Rs, 50/- after coming outside his room otherwise his electric connection should be disconnected and that apart he (decoy) would have to pay penalty, and the bill would not be corrected without obtaining the order of deduction of the sum, of the AEN, RSEB Behror. The decoy pleaded that he was not in a position to pay the amount demanded and it was ultimately settled that the sum of Rs. 25/-would be paid for which he was directed to come with money in the office of the AEN, RSEB, Behror on 28.3.1976. 3. The decoy pleaded not to pay the bribe and therefore he made a complaint in the office of the Deputy Superintendent of Police (Anti-corruption), Alwar on 27.3.1976, with the assertions, referred to above. With reference to the payment of the alleged illegal gratification, a trap was arranged where first of all, the decoy was directed by the Dy. S.P. to remain present on 28.3.76.at 2 P.M. at Behror near Hospital, with the amount of gratification demanded by the appellant. With reference to the payment of the alleged illegal gratification, a trap was arranged where first of all, the decoy was directed by the Dy. S.P. to remain present on 28.3.76.at 2 P.M. at Behror near Hospital, with the amount of gratification demanded by the appellant. On 28.3.1976, as directed by the Dy. S. P., the decoy came to the village, Behror, where he found Dy. S. P. alongwith Mahesh Kumar (constable), Ram-jilal (Head Constable), Madan Singh (constable). Thereafter, the Dy. S. P. called Gugandas (PW 3) and Magan Behari (PW 4) for being motbirs in whose presence report (Ex. P. 3) was read over and the decoy admitted its contents to be correct. The decoy thereupon produced Rs. 25/-in the denomination—two notes of Rs. 10/-each, & one of Rs. 5/—numbers of which were noted and they were treated with phenol-phthalein powder. After usual instructions were given to the decoy and the panch witnesses, the raiding party proceeded towards the crucial place. 4. It is pertinent to mention here that the decoy was instructed to again have a talk with the appellant about the demand of illegal gratification and the Panch witnesses were instructed to remain present nearby the decoy so as to peep, see and hear the talks in between the decoy and the appellant. The decoy was further instructed to give signal by putting his hand on his head after payment of bribe. Other members of the raiding party were also instructed to stand at the directed point of place. 5. Thereafter the decoy went and enterd into the Office of the AEN, RSEB, Behror, and found the appellant sitting in his room and told the appellant to correct bill whereupon the appellant is said to have demanded Rs. 25/-and the decoy banded over the said money to the appellant who took and put it inside his pant Docket and the appellant is said to have prepared fresh corrected bill (Ex. P. 6) to the tune of Rs. 653.95 p. 6. The prosecution case further is that Mahesh Kumar (PW 6) gave signal by putting his hand on head whereupon the Dy. P. 6) to the tune of Rs. 653.95 p. 6. The prosecution case further is that Mahesh Kumar (PW 6) gave signal by putting his hand on head whereupon the Dy. S. P. and other members of the raiding party rushed to the crucial place—a room of the Office of the AEN, RSEB, Behror where apart from the bribe given and the appellant., one L.D.C. emptoyed there in AENs office, namely, Surya Prakash (PW.7) also came and present there. After entering into the room of the appellant, the Dy. S.P. introduced himself to the appellant and then asked the appellant as to where be has taken bribe to which an immediate reply was that an amount of Rs. 25/- has been received by him but it was not taken as bride or illegal gratification and was towards repayment of loan owed by the complainant from him (appellant). Thereupon the tainted currency notes were took out from his trousers pocket by the appellant and handed over to the Dy. S.P.—their numbers were compared and got tallied with the numbers noted before the raiding party proceeded. Both the hands of the appellant were dipped in sodium carbonate solution and the solution which was previously colourless turned pink. The same test was applied and repeated with the trouser which was taken out from the appellant. After completion of the investigation, a charge-sheet was laid against the appellant being for offences under Section 5 (0(d)(2) of the Act read with sec, 161, IPC, to which the appellant denied and claimed to be tried. 7. In all eleven prosecution witnesses were produced to prove the prosecution case. 8. The appellant admitted the receipt of Rs. 25/- but his case in his statement recorded under section 313. Cr. P. C. was that there was no question of payment of any bribe; that on 11.3.1976 the decoy came to him so as to get re-connection order of his electric connection from the AENs office and he (decoy) had to deposit the re-connection charges but, since he (decoy) had no money he requested him (accused) to advance him a loan and on his request, Rs.25/- were given to the decoy by the accused with an assurance that it will be returned to the appellant. The appellant in his statement also stated that the electrical connection of the decoys father was dis-connected by the RSEB not only on account of default in payment of electricity consumption charges on the part of the decoys father but also the decoy alongwith his father committed electricity theft and they were caught red-handed by the vigilance party of the RSEB and on their report, the connection was again disconnected, its report was also lodged by the RSEB to the police; electrical wires were removed—which were tied by the decoys father or by someone else at his instance. The appellant also stated that in order to get the order of re-connection the decoy came to the office of the AEN, RSEB on 11 3-1976 and deposited the requisite charges for re-connection by borrowing the same from him; that the order of re-connection was passed on 12-3-1976 and since 11th and 14th March, 1976 were the Holidays, therefore, the decoy requested him (appellant) to give the order of re-connection DASTY to which he (appellant) refuted and told him (decoy) that the order would be sent in due course that confronting with the appellants refusal to give order of reconnection dasti, the decoy became annoyed and angry, and wanted him of dire consequences. The appellant also stated that the fact of demand was false because, when according to the prosecution case, itself, the appellant directed the decoy to come in the office of the AEN, RSEB, Behror on 28-3-76 to pay gratification but on 28-3-76 it was Sunday being holiday and, therefore, there was no occasion for him (appellant) to have instructed the decoy to come on 28-3-1976, and further because, the appellant had made an application to the AEN concerned for grant of permission to leave head quarter for 28-3-1976 in addition to leave for 29-3-76—on which, the AEN had passed an order directing the appellant not to proceed on leave on those dates and directed him to work in the office even on Sunday. So, according to the appellant, had the leave been granted then he would have proceeded on leave, and it was a sheer chance that he was not granted leave for 28th & 29th March, 1976 by the AEN, RSEB, Behror and he had to remain present in the office in compliance of the order of the AEN to complete the pending work of the seat, passed on his application dated 27-3-1976 i. e. a day before the date alleged to have been settled by the decoy for giving and taking gratification. 9. This leave application (Ex. D.3) bears signature A to B admittedly of the appellant; contains endorsement of direction at C to D issued by the AEN under his signature E to F with his office seal marked G to H. 10. The appellants further sworn testimony is that as per the direction of the AEN, RSEB, Behror, Lehriram Meena (Class IV Servant) and Surya Prakash (LDC), also came in the office on Sunday when at about 2 P.M. Surya Prakash was sitting in his room, then the decoy came there stating that he had gone to his house (accuseds) but he (decoy) was informed that he (accused) was in the office so he (decoy) came in the office and thereafter the decoy paid Rs. 25/. saying that he was returning the amount borrowed by him, whereupon immediately Dy. S. P. entered in his room* and questioned about the money-at that time also, it was his answer that the amount paid to him was the amount which was borrowed by the decoy from him (accused). According to the appellants sworn testimony, the bill was corrected by him in pursuance of the order dated 27-3-1976 of the AEN after receiving the report of Assistant Accounts Officer. 11. The appellant in his defence produced three witnesses, Rajendra (DW1), Babulal (DW2) and Lehri Ram (DW3). The learned trial Court posed five questions so as to find out the culpability of the appellant. All the five questions decided against the appellant and disbelieving the plea of the appellant in his defence, held him peccant for the offences charged and sentenced him as indicated in first para of this judgment. Hence this appeal. 12. The learned trial Court posed five questions so as to find out the culpability of the appellant. All the five questions decided against the appellant and disbelieving the plea of the appellant in his defence, held him peccant for the offences charged and sentenced him as indicated in first para of this judgment. Hence this appeal. 12. Having heard the rival contentions of the learned Advocate for the appellant and the learned Public Prosecutor and perused the entire record, I am of the opinion that the prosecution story, as is unfolded during trial & which can be condensed as follows, was that, (1) the appellant was a government servant being L.D.C.. working in the office of the Assistant Engineer, R.S.E.B., Behror; (2) that, the demand of illegal gratification was made by the appellant to the decoy on whose complaint, a trap was arranged wherein the decoy produced two currency notes of the value of Rs. 10/- each and one was of the value of Rs. 5/—numbers of which were noted and they were treated with phenolphthalein powder, and then after usual instructions to the decoy and the panch witnesses the raiding party proceeded towards the Office of the AEN, RSEB, Behror where firstly the decoy entered into the room of the appellant and had some talks with the appellant which were said to have been heard by the panch witnesses as were directed to hear by the Dy. S. P. and then handed over Rs. 25/- to the appellant and thereupon after receiving signal the raid was laid by the Dy. S. P., (3) that, a sum of Rs. 25/- was paid to the appellant by the decoy as illegal gratification because the bill (Ex. P. 1) was prepared incorrectly with criminal intention by the appellant; and after receiving illegal gratification, the bill (Ex. P. 6) was prepared by the appellant at his own instance. 13. Undisputed by the appellant in his statement, the appellant being L.D.C. in the office of the AEN, RSEB, Behror his function was to prepare the bills of the consummer that, an amount of Rs. 25/—recovered from his possession was not paid as bribe by the decoy; that the Dy. S. P. (ACD) laid trap alongwith members of the trap party. Thus, the presence of the panch witnesses, constables of the Anti-corruption department, and the Dy. 25/—recovered from his possession was not paid as bribe by the decoy; that the Dy. S. P. (ACD) laid trap alongwith members of the trap party. Thus, the presence of the panch witnesses, constables of the Anti-corruption department, and the Dy. S. P. is not disputed at the time of trap. In this view of the matter, the formalities observed by the Dy. S.P, before laiding trap are not material. 14. In view of the case put forward by the prosecution and the appellant, mentioned above, the questions require to be examined are thus— (a) whether the decoys case that on a demand of the appellant, he paid an amount of Rs. 25/- as bribe to the appellant in order to obtain corrected bill, is correct, on the totality of the entire evidence on record? (b) whether the prosecution evidence which according to the appellants counsel lacks independent corroboration, is worthy of credence? (c) whether the order of the AEN, RSEB, Behror, for preparing the correct bill of the decoy and the appellants leave application dated 27-3-1976 (Ex.D.3) falsify and disprove the prosecution version? (d) whether any adverse inference can be drawn on the basis of the bill (Ex.P.1) alleged to have been prepared by the appellant with criminal intent so as extort money from the decoy, in the light of the bill (Ex. P.6)? (e) whethere the decoy repaid the sum of Rs. 25/—payable towards his borrowed amount alleged to have been paid by the appellant as is the defence case? (f) whether the defence of the appellant is probable? 15. I may state that I have had the advantage of hearing full dressed arguments of counsel for the appellant who diligently prepared the case and put across his respective contentions with great ability. 16. Before examining the sufficiency or otherwise of the material bearing on the charges against the appellant, I consider it necessary to first have a clear concept in regard to evidentiary value of the decoy, corroboration in material particulars, panch witness passing of money and recovery of money from acc-used, and presumption under Section 4 (1) of the Act in trap cases. It will be advantageous in this connection to refer to few decisions rendered by this Court as well as the Apex Court. 17. In Bal Krishan Sayal Vs. It will be advantageous in this connection to refer to few decisions rendered by this Court as well as the Apex Court. 17. In Bal Krishan Sayal Vs. State of Punjab (1), their Lordships of the Supreme Court observed as under: — "Where in a case of bribe it was alleged that for waiver of penal rent which was found to be Rs. 102/- in respect of official residence of the complainant, he offered a bribe of Rs. 100/- it was held that to obtain waiver of the rent it was unlikely that a bribe of Rs. 100/-would have been offered. Thus, it could not be said that the offence was proved beyond reasonable doubt. Also, there was no clear evidence about what talk preceded the passing of the currency notes. It cannot be said that even if the prosecution had not indicated what exactly the conversation was, once the passing of the currency notes was accepted it was for the accused to explain the circumstance under which the same had been received." (Para 3) In view of the observations (put supra), it was necessay for the prosecution to have indicated what exactly the conversation was, and it cannot be said that once passing of the notes was accepted it was for the accused to explain circumstance in which the same had been received. 18. In Panalal Vs. State of Maharashtra (2), the Apex Court held that in the absence of corroboration of testimony of complainant regarding demand for money by the appellant, his evidence on that aspect, therefore cannot be accepted. 19. In Hazarilal Vs. State (Delhi Admn.) (3),mere recovery of the money from the accused was not found sufficient to prove acceptance of bribe with con senting mind. The recovery of money coupled with other circumstances leading to circumstances that accused received gratification can be acted upon for drawing presumption under Sec. 4(1) of the Act. In the light of the principles (put supra) laid down by the Apex Court, it was obligatory on the part of the prosecution not only to prove that the gratification was accepted by the accused with consenting mind but some more significant circumstances are require to be proved leading to circumstances so as to draw presumption under Section 4 of the Act. 20. In Ram Prakash Arora Vs. 20. In Ram Prakash Arora Vs. State of Punjab (4), the Apex Court observed that the 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, In that case (supra), there was no independent search witness and no other evidence from which any corroboration could be found of the evidence given by the members of the raiding party including the complaint. 21. Having benefitted by the enlightments derived from the decision (put supra) in my view, the evidence of the complainant is not sufficient to base con-viction against the accused and in definitely requires independent corroboration. 22. In Lachman Das Vs. State of Punjab (5), circumstantial and documentary evidence created room for doubt that the defence version was probably true and the statement of the complainant could not be accepted without corroboration. And, the conviction of the accused was set aside. 23. In Vijay Dan Vs. State of Rajasthan (6), this Court held that the presumption would stand rebutted if the accused shows a preponderence of probabilities in his favour. 24. Keeping in view the principles and enlightments derived from the decisions (put supra), let me now turn to the various circumstances which have either been relied upon or eschewed as irrelevant for, by the trial Court in holding the appellant guilty, and see whether they factually exist and if so whether they are of such a character as to be wholly incompetible with the innocence of the appellant and consistent only with his guilt. In so doing, I deal with the points and circumstances which I have condensed and extracted in preceding paragraphs of this judgment, simultaneously and not ad seriatim. 25. One of the grounds on which the learned trial Court acted and base the conviction against the appellant, is that the appellant had prepared bill (Ex. P.l) with a fraudulent intent i.e. in order to extort money from the decoy other-wise the money shown in Ex.P. 1 was not payable by the decoy according to the RSEB record. At the same time, it has not been disputed that the bill (Ex.P. 6) is incorrect. P.l) with a fraudulent intent i.e. in order to extort money from the decoy other-wise the money shown in Ex.P. 1 was not payable by the decoy according to the RSEB record. At the same time, it has not been disputed that the bill (Ex.P. 6) is incorrect. The trial Court also found that the corrected bill (Ex.P. 6) has been prepared by the appellant after receipt of gratification. But looking to the facts and circumstance apart from the admission wrung out from the prosecution versions given out by their witnesses, I am unable to concur with the findings(put supra) arrived at by the trial Court because, in Ex.P. 1. the amount due was shown as 1200. 65p. out of which Rs. 550.20p.—amount of vigilance checking report was deducted in pursuance of the AENs order, thereupon bill (Ex. P. 6) was prepared and issued. The concerned AEN who has appeared in the witness box as PW 9, has categorically deposed that the amount of vigilance checking report cannot be deducted without obtaining prior sanction of the concerned competent authority and this amount is a sort of deposit in advance which was refundable at the final stage. It has not been disputed on the application of the decoy moved for issuance of correct bill, the appellant mentioned correct position in his report (Ex. D. 2) which has been admitted by the A.E.N. to be correct; wherein the appellant indicated the amount of Rs. 550. 20p. as of vigilance checking report as was pointed out by the Accounts Section and the assessment made was subject to the adjustment of minimum charges to the period under assessment already taken. The appellant in his report (Ex. D 2) sought direction as to whether this amount was to be deducted from amount of minimum charges. There is sworn testimony of the AEN (PW 9) that such an amount could have been deducted from minimum charges on the request of the person concerned. It was not the prosecution case that prior to 27.3.1976, any such request was ever made by the decoy in the department. There is sworn testimony of the AEN (PW 9) that such an amount could have been deducted from minimum charges on the request of the person concerned. It was not the prosecution case that prior to 27.3.1976, any such request was ever made by the decoy in the department. In these circumstances, there was no option before the appellant to have issued a demand notice in the shape of bill (Ex P. 1) In this view of the matter, it was wrong on the part of the trial Court to have drawn adverse inference against the appellant for issuance of Ex.P. 1. I am of the opinion that issuance of Ex. P. 6 was suffice to conclude that the amount shown in Ex. P. 1 was correct, and the appellant was duty bounden to have issued Ex, P. 1 because from the amount of that bill (Ex.P. 3) only amount which has been deducted is of the vigilance checking report to the tune of Rs. 550.20p. which was not in his purview unless and untill there had been orders from the concerned competent officer. Thus, the appellant cannot be held to have abused his official position. 26. As said Earlier and as laid down in the decisions cited above, it is obligatory on the part of the prosecution to have produced corroboratory evidence so as to place reliance on the testimony of the decoy. And, I find no case where the appellant be convicted solely on the testimony of the decoy in trap case, because there may be some money considerations before the decoy in order to involve government servant in trap case. It can be said that the official acts are presumed to be correct unless rebutted and in view of this principle, action of a government servant can be impeached only when there is cogent and reliable evidence and so in trap cases, corroboration of the evidence of the decoy is mandatory. I want to judge the case in hand keeping in the principles (put supra). 27. In view of the application dated 27.3.1976 (Ex. D. 3) of the appellant, it can never be disputed that he filed this leave application seeking permission to leave head quarter on 28.3.76 apart from leave for 23.3,76 and the A.E.N. RSEB, Behror passed order on 27.3.1976 (Ex. 27. In view of the application dated 27.3.1976 (Ex. D. 3) of the appellant, it can never be disputed that he filed this leave application seeking permission to leave head quarter on 28.3.76 apart from leave for 23.3,76 and the A.E.N. RSEB, Behror passed order on 27.3.1976 (Ex. P. 15) directing the three employees to attend office on 28.3.1976 for completing the pending work of their seats. In this order name of the appellant has been shown at S. No. 2. So, from the aforesaid documents (Ex. D. 3 and Ex. P. 15) it is abundantly clear that the appellant was not intended to stay at head quarter on 28.3.1976 and he was in the office on 28.3.1976 only in compliance of the order (Ex. P. 15). It is, therefore clear that if the document Ex. D. 3 and Ex. P. 15 could never exist then definitely the appellant would have left head quarter on 28.3.1976 and there was no occasion for the decoy to have come in the office of the AEN and met with the appellant and to have paid the amount of the alleged gratification as is the prosecution case, In this view of the matter, the appellant not only showed preponderence of probability in his favour, but definitely discredit the testimony of the decoy. In view of the said documentary evidence no reliance could be placed on the statement of the decoy if the circumstances stated by him would have been correct that there was no occasion for the appellant to have applied for head quarter leave for 28 3.1976, and if the theory of demand or say the settlement in between him & the appellant for the payment of bribe would have been there then definitely the appellant might have waited for the decoy in order to receive bribe and in that state of affairs, he would have never filed leave application for his head quarter leave. Moreover, had the settlement of payment of bribe been there, the appellant would have never made a report in favour of the decoy before the appointed date for the payment of the bribe. Moreover, had the settlement of payment of bribe been there, the appellant would have never made a report in favour of the decoy before the appointed date for the payment of the bribe. Thus, apart from what has been stated above I cannot overlook the fact which has been ignored and eschewed by the trial Court as to why the appellant demanded bribe on March 28, 1976 after he had already submitted his report on 27.3.1976 before applying for his proceeding on leave. That apart report (Ex. D. 2) made by the appellant on the application of the decoy (Ex. D. 4) at the instance of the AEN RSEB Behror, could not have been made before taking the amount of the alleged bribe and the favour could have been shown by him in his report only after received the alleged settled gratification. So making of report(Ex D. 2) on 27.3.76 shows innocence of the appellant not only disproving the prosecution story but completely falsifying it. I have already discussed the innocent conduct of the appellant in preparing the bills (Ex. P. 1 & P. 6) and no adverse inference can and could be drawn against the appellant in preparation of those bills, as has been wrongly drown by the learned trial court. 28. The record shows that the decoy and his father were persistently committing electricity theft as was found by the Vigilance Bureau of the Electricity Board on whose report, electricity connection of the wall was disconnected. But, still sympathetic attitude was taken by the Electricity Board and all times, the connection was restored after payment of re-connection charges. In the light of such a reprehensible conduct the decoy and his father, it was argued before the trial Court that the creditability of the decoy witness is doubtful. But the learned trial Court erred in observing the creditability of the complainant cannot be impeached on this ground. 29. All the prosecution witnesses have admitted at that time when the trap was laid and the Dy. S.P. questioned about the money then only answer given out by the appellant in the presence of the decoy was that the amount of loan was repaid by the decoy. None of the prosecution witnesses have deposed before the trial Court or in their police statement that the aforesaid statement of the appellant was controverted by the decoy. S.P. questioned about the money then only answer given out by the appellant in the presence of the decoy was that the amount of loan was repaid by the decoy. None of the prosecution witnesses have deposed before the trial Court or in their police statement that the aforesaid statement of the appellant was controverted by the decoy. The trial court while discussing the evidence failed to consider this important aspect of the matter. I am of the opinion that if the decoy witness would have been honest then he could have immediately controverted the version of the appellant but his silence at that time shows that he did not dare to controvert the statement of the appellant rather bore hostility to the appellant. The evidence of the prosecution witness, particularly of Surya Prakash and of the Dy. S. P. is clear on this ponint by not stating that the earlier version of the appellant was then controverted by the decoy. 30. On the point of payment of bribe, the prosecution evidence is highly shaky as is apparent from the fact as to why after the payment of bribe the signal was not given by the decoy though it was instructed to do so by the decoy. From the statement of Mahesh Kumar (PW 6), Ramjilal (PW 10) and Fateh Chand (PW 11), it is admitted case of the prosecution that no such signal was over given by the decoy and according to (PW 10) and (PW 11) it was given by Mahesh (PW 6). From these two statements (PW 10 & PW 11), it is clear that Mahesh witnessed the passing of money and he would have been the best witness to pay that the amount of bribe was given to the appellant but Mahesh (PW 6) nowhere claims that he over witnessed the payment or hear any conversation held in between the appellant and the decoy for the nature of the payment. Mahesh (PW 6) on the other hand gives the name of one Ravidutt who gave signal. It is thus clear that as per the statement of Mahesh (PW 6) Ravidutt was the person the witnessed the passing of the money of bribe and who might ha\e heard the conversation held in between the accused and the decoy. Mahesh (PW 6) on the other hand gives the name of one Ravidutt who gave signal. It is thus clear that as per the statement of Mahesh (PW 6) Ravidutt was the person the witnessed the passing of the money of bribe and who might ha\e heard the conversation held in between the accused and the decoy. But Ravidutt has not only been produced by the prosecution but his name has at all been mentioned in any of the documents prepared by the Deputy S.P. and produced before the trial court, So, the statement of Mahesh if could be relied upon by the prosecution as against Ramjilal (PW 10) and Fateh Chand (PW 11), and Ravidutt would have been most important witness to have supported the prosecution story but non-production of Ravidutt is definitely fatal to the prosecution and in these circumstances, no reliance could be placed on the statements of the prosecution witnesses on the point of payment of the alleged gratification benefit of which must go to the accused. 31. It has been contended by the learned Public Prosecutor that for the payment of bribe, Sunday was intentionally choosen by the appellant because on that day, it was easy for him to take bribe in privacy. But in view of the observations made by me in preceding paragraphs of this judgment, I am unable to ac-cept this contention because the presence of the appellant in the office on 28.3.76 was in compliance of the order (Ex. D. 2 and P. 15) passed by the AEN. 32. The defence taken by the appellant appears to be probable because on 11.3.1976 the decoy went to the office of the AEN, RSEB Behror as is clear from his application for restoration of connection. It also admitted prosecution case that prior to 11.2.1976, the connection was discontiuned and it was to be restored. It is admitted case that it was ordered that the reconnection charges were to be deposited and the same was deposited on 12.3.1976. In these circumstances, it cannot be disputed by the prosecution that the decoy was in the need of the amount for its deposit towards reconnection charges, as is the defence case, the amount of Rs. 25/- was borrowed by the complainant which is corroborated by the prosecution witness. Surya Prakash who was admittedly present on the day when the trap was laid. 25/- was borrowed by the complainant which is corroborated by the prosecution witness. Surya Prakash who was admittedly present on the day when the trap was laid. Surya Prakash in his statement has deposed that the date when the raid was given on 28.3.1976. he was sitting with the appellant in his office room and was taking tea with the accused and at that time, a man came there and said the accused that he was returning the amount of debt owed by him from the accused and some money was handed over to the accused in his presence. This part of the statement of the witness, Surya Prakash has not been disbelieved by the trial court rather it believed while holding that the man who came was none else but the decoy. The trial court disbelieved this witness on surmises and conjectures and in disbelieving his testimony, it planted his own theory which has not at all been put forwared by the prosecution. I am of the opinion that the trial court was not legally justified in disbelieving the testimony of Surya Prakash without any foundation laid by the prosecution. Mahesh (PW6) and Surya Prakash are the prosecution witnesses and whatever statement and versions have been given by them in favour of the accu-sed appellant on which it shall be presumed that it is admission of the prosecution and the prosecution cannot challenge their testimony in any circumstance especially when these witnesses have not been declared hostile. From this state of prosecutions conduct, only inference which can be drawn is that the prosecution has placed reliance on the testimony of these two witnesses which completely exonerate the appellant from the charge levelled against him. 33. From the documents available on record, it is also clear that at the time when the decoy filed his application for reconnection on 25.3.1976 it was stated by the appellant that he was not in a position to correct the bill and it could only be possible after obtaining the order of the AEN. This conduct of the appellant shows his innocence and subsequently this part of the statement of the decoy that after wards the appellant came out of the office and demanded bribe cannot at all be believed. This conduct of the appellant shows his innocence and subsequently this part of the statement of the decoy that after wards the appellant came out of the office and demanded bribe cannot at all be believed. The statement of the appellant has been corroborated not only by the statement of the employees of the Electricity Board who appeared as prosecution witnesses but also by the documents, referred to above. 34. As said earlier, Gugandass (PW 3) and Magan Behari (PW 4) were choosen as panch witnesses and they have been directed during trap to watch and hear the activity and conversation with the appellant. But, these two witnesses did not say even a single word with regard to the conversation held in between the appellant and the decoy. They are the witnesses only of trap which has not been disputed by the appellant. In this view of the matter, it can be said that the panch witnesses have not supported the prosecution story on the real controversy and in the absence of which, it cannot be said that the offence against the appellant has been brought home. There is no clear evidence about what talk preceded the passing of the currency notes. It cannot be said that even if the prosecution had not indicated what exactly the conversation was, once the passing of the currency notes was accepted it was for the accused to explain the circumstance under which the same had been received and in a given case, the appellant has explained in his statement which is probable and proved by the documents as well as the prosecution testimony, referred to above that an amount of Rs. 25/-was repaid to him by the decoy towards the debt owed to him by the appellant. 35. It has been stated by Gogundas (PW 3) that the decoy and one more government employee were directed by the Dy. S. P. to proceed to the Office of the AEN, RSEB, Behror. 25/-was repaid to him by the decoy towards the debt owed to him by the appellant. 35. It has been stated by Gogundas (PW 3) that the decoy and one more government employee were directed by the Dy. S. P. to proceed to the Office of the AEN, RSEB, Behror. From this, it is clear that one government employee was also there with the decoy but it has not been clarified as to who was the Government employee and thus in the presence of this statement it can safely be said that the important person who accompanied the decoy was neither pointed out nor produced by the prosecution and this can also be said that that person was definitely known to the Dy. S.P. otherwise there was no reason for him to have given direction to that person who could have also been the best person to lead evidence about what talk preceded the pessing of the currency notes. 36. It was also stated by Gogundas (PW 3) that an employee in the Dy. S.P. office was the person who gave signal but unfortunately that person has not only been produced but has not been brought into the notice. This is a strong circumstance in order to make the prosecution case doubtful. Magan Behari (PW 4) has also admitted the presence of one more L.D.C. in the office of the AEN though the person has not been named by Magan Behari but it is just possible that may be Surya Kumar who has been produced by the prosecution but unfortunately. Surya Kumar did not at all support the prosecution rather he had shown favour towards the appellant in supporting the defence case. In these circumstances I feel it unsafe to base a conviction on the sole testimony of the complainant. I have found that the evidence of the decoy is not corroborated on material particulars rather it is discrepent. 37. An analysis of the evidence adduced by the prosecution does not in my opinion lead to an unerring certainty that the appellant acted with any dis- honest of corrupt motive or abused his position. In conclusion, I cannot help in observing that non-examination by the prosecution of a Govt. 37. An analysis of the evidence adduced by the prosecution does not in my opinion lead to an unerring certainty that the appellant acted with any dis- honest of corrupt motive or abused his position. In conclusion, I cannot help in observing that non-examination by the prosecution of a Govt. servant, and/or Ravidutt who is alleged to have given signal after passing of the money and who probably might have heard the talks preceded the payment of money and one more LDC of the RSEB, who are material witnesses for the unfolding of its case has left some yawning gaps in the evidence which I have found very difficult to bridge. 38. In the view of what has been discussed above, it can safely be said that the accused has been successful to probabilise his defence and also to show that case of the prosecution is full of doubt and that the prosecution failed to bring on record the circumstances on the basis of which it can claim presumption against the accused u/s 4 (1) of the Act. After all, the accused is only required to show the preponderence of probabilities in his favour and nothing more. Over and above all this there is no wonder that the decoy got the trap arranged to give a vent to his annoyance and hatred feelings as the appellant had refuted to give dasti order of the re-connection on 12.3.1976. Viewed in this perspective, the defence version appears to be quite plausible, reasonable and logical that the accused accepted money under the impression that it was being given to him by the decoy who borrowed Rs. 25/- from him so as to deposit the reconnection charges on 12.3.1976. In the instant case, the prosecution has utter-ly failed to prove beyond reasonable doubt its case against the appellant for the offences for which he was charged. 39. For reasons discussed above, the conviction of the appellant is bad and cannot be maintained. In the result, the appeal of the appellant, Shiv Nandan Sharma is allowed. His conviction and sentence under both the counts (put supra) are set aside and he is acquitted, holding that on a careful appraisal of the evidence of the parties, the irresistable impression is that the accused was more sinned than the sinner. He is on bail and need not surrender. His bail bonds stand cancelled.