JUDGMENT 1. - This appeal is directed against the judgment dated 18th & 19th July, 1980, passed by the Special Judge, ACD Cases Jaipur, by which the appellant was found guilty of offence under Section 5(1)(d)(2) read with Section 5(2) of the Prevention of Corruption Act, 1947 (for short, "the Act") and sentenced to 1 year's rigorous imprisonment and a fine of Rs 1,000/-; in default of payment of fine, to further undergo 6 month's simple imprisonment; and under Section 161, IPC to 6 month's rigorous imprisonment and a fine of Rs. 500/-, and in default thereof to undergo 3 month's simple imprisonment. Both the sentences were, how ever, ordered to run concurrently. 2. Tarachand Jain submitted a report on 14th October, 1977 before the SP, ACD, Jaipur alleging that he was working in the Roadways Department. He had to take a copy of the order of temporary injunction, in the case order of temporary injunction in the case of Tarachand v. Kalu Ram which was pending in the court of AMJM No. 1. Jaipur City, Jaipur. He had submitted an application for copy on 31st August, 1977. There, one clerk Gajanand demanded Rs. 10/- as bribe, for the copy. He had been 2-3 times to that court and requested Gajanand to give him the copy, but, he continued demanding Rs 10/- as bribe. On 12th October, 1977 when he met the clerk, was told by him that unless he gave him Rs 10/-, he would not get the copy. As the informant wanted to get Gajanand trapped he produced a currency-note Rs. 10/-, along with the report. Manphool Singh Poonia, Additional SP, ACD, arranged for a trap and the trap-party reached the court. Then, as directed by ASP, Tarachand paid Rs 10/- as bribe to accused Gajanand; and upon receiving a signal, the ASP accosted the accused while coming out of the room of Copying-section. The money was recovered from the pocket of his pant. After registering a case and completing usual investigation, a challan was filed against the appellant under Section 5(l)(d)(2) read with Section 5(2) of the Act. 3. The accused was charge sheeted, who pleaded not guilty and claimed trial. 4. After the trial, the Special Judge who was conducting the trial found the accused guilty of the offences for which he was charge-sheeted, and sentenced him as mentioned above. 5. 3. The accused was charge sheeted, who pleaded not guilty and claimed trial. 4. After the trial, the Special Judge who was conducting the trial found the accused guilty of the offences for which he was charge-sheeted, and sentenced him as mentioned above. 5. The learned Counsel for the appellant argued that in this case, Madanlal PW 2 & Tirathsingh PW 3 are the motbirs who were taken with the trap party The other witnesses are PW 4 Kalyanmal, who was Head-Copyist and was incharge of the Copying-section Prabhusingh PW 6 is the employee of the Police Department. Similarly, PW 7 Ramswaroop is the Head-Constable in the Anti Corruption Department. It was argued that if the evidence of these witnesses is perused, then, it would be found that all of them have supported the contention of the accused, which he took at the time of his arrest and at the time of the alleged recovery of Rs. 10/-. It was also argued that because these independent witnesses have supported the contention of the accused, the entire case becomes doubtful. Then the statement of Tarachand, the decoy, remains on the record. The trial court in its judgment, no doubt has discussed the entire evidence, and it did not believe that portion of the independent and the other witness except the decoy, which is in corroboration to the accused. The trial court completely relied on the statement of Tara Chand decoy, and found his statement to be of sterling worth. On the basis of the very statement of Tarachand the accused appellant was found guilty. Thus, the argument was that the trial court has committed error in not appreciating the evidence of the other prosecution witnesses except Tarachand decoy. 6. About Tarachand, it was argued that the contention of this witness shows that he is not a person of credibility and he cannot be treated to be a witness of sterling worth. In that case, corroboration to his statement is very essential. As there is no corroboration to the statement of Tara Chand, his solitary statement should not be treated as trust-worthy and credit-worthy. 7. It was also argued that the trial court has relied on Section 4 of the Act, which says that where a public servant accepts gratification other than legal remuneration, then, the court would draw some presumption. As there is no corroboration to the statement of Tara Chand, his solitary statement should not be treated as trust-worthy and credit-worthy. 7. It was also argued that the trial court has relied on Section 4 of the Act, which says that where a public servant accepts gratification other than legal remuneration, then, the court would draw some presumption. In this respect the argument was that this section applies to those cases which are punishable Under Section 161 or Under Section 165, IPC, or when the offences areas referred to in Clauses (a) & (b) of Sub-section (1) of Section 5 of the Act; and for an offence Under Section 5(1) (d) of the Act, no presumption Under Section 4, is to be drawn, by the Court. Under these circumstances, it was the duty of the prosecution to prove the charge against the accused. It was to be proved that he had accepted or obtained some amount from the decoy. In these offence as mentioned in Section 4 of the Act, the presumption is that the accused has accepted the amount, unless, contrary is proved by the accused. No such presumption can be drawn in an offence Under Section 5(1)(d) of the Act. In support of his argument, the learned Counsel relied on the case of Sitaram v. State of Rajasthan ( AIR 1975 SC 1432 ) , where in, it was observed: "The conviction of the appellant cannot be sustained on the basis of Section 4(1) of the Act As pointed out in the judgment of this Court, delivered by one of us (Untwalia, J.) in Cr Appeal No. 73 of 1971 decided on 13-3-1975 reported in AIR 1975 SC 899 , Section 4(1) does not permit the drawing of presumption in case or an offence referred to in Clause (d) of Sub-section (1) of Section 5 of the Act. The only clause incorporated in Section 4(1) by the Act 40, 1964, are Clauses (a) & (b) of Sub-section (1) of Section 5 and not Clause (d)" This argument of the learned Counsel is great substance. Legally, the trial court has committed error in drawing presumption Under Section 4(1) of the Act This offence being Under Section 5(l)(d) of the Act, no presumption can be drawn, and so, the trial court has committed error. Legally, the trial court has committed error in drawing presumption Under Section 4(1) of the Act This offence being Under Section 5(l)(d) of the Act, no presumption can be drawn, and so, the trial court has committed error. It is the duty of the prosecution to prove the charges levelled against the accused In this regard, I have gone through the entire record of the case. The contention of the accused from the very beginning has been that he did not accept any bribe from Tars Chand. The case of the accused is that he along with Tarachand had come out of the office Tarachand had thrust a currency note of Rs. 10/- into his pocket. His contention is that on 14th Oct., 1977, at about 4.30 p.m., Tarachand had come to him and demanded a copy of an order. He had shaked his hands with him. After entering in the despatch-register, the copy was given to Tarachand, who was asked to sign the register. Tarachand had put his signature on the register with the pen of the accused Then he had forcibly taken the bands of the accused in his hand and taken him to the hotel for tea. The accused was not willing to go with him, but, by force, he was taken away, and as soon as he had come out of the room. Tarachand had put his hand into his pocket. He could not take out the currency-note from his pocket, and immediately, the police-party arrived there and caught him Whether this explanation given by the accused is probable or not, is to be seen. 8. As mentioned above, Section 4(1) of the Act does not allow to draw any presumption against a person. So, the accused has not to prove contrary to the alleged fact about the recovery of money. If the accused gives a probable or possible explanation about the recovery of the money, then, it is sufficient to create doubt in the prosecution case, and the story as putforth by the prosecution, becomes weak. In this regard, the evidence of the prosecution was scrutinised The fact as stated by the accused, has been denied by the decoy Tarachand. The statement of this witness would be dealt with later on independently. 9. In this regard, the evidence of the prosecution was scrutinised The fact as stated by the accused, has been denied by the decoy Tarachand. The statement of this witness would be dealt with later on independently. 9. Another witness is Madanlal PW 2, who was with the trap-party and who was present when the amount was recovered from the pocket of the accused. He has stated in his examination-in-chief that Tarachand had entered into the office-room and walked upto the seat of the accused. The concerned clerk handed over the copy to Tarachand and got the latter's signature on the register. Thereafter, Tarachand were coming out of the room, and when they walked about 5 paces. Poonja arrived there and caught the accused. He has further stated that after the recovery of the amount, the accused was asked to explain about the mosey. At that time, the accused replied that Tarachand decoy had forcibly put the said money in his pocket. He did not want to have any money. This witness has also stated that Tarachand wanted to take the clerk out of the room forcibly, while the latter was not willing to go out. In his cross-examination, he has further clarified this fact that after taking the copy, the complainant had stretched his hand towards the clerk (accused), but the latter was not willing to shake the former' s hand Then the complainant caught the hands of the accused and took him out of the room, while the accused was not at all willing to go with him. 10. Tirath Singh PW 3 has stated that Tarachand had come into the room of the clerk and shaken his hand with the clerk. Then, the clerk, Gajanand, had given a paper to Tarachand. After that, the accused asked Tarachand to sign on the register. Tarachand wanted to give something to the accused, to which, the accused had no consent. Tarachand then caught his hand, forced him to get up and brought him outside the room. Tarachand then put something in the pocket of the accused. When the accused asked him as to what he was doing, at that point of time, the ASP arrived there. 11. Tarachand then caught his hand, forced him to get up and brought him outside the room. Tarachand then put something in the pocket of the accused. When the accused asked him as to what he was doing, at that point of time, the ASP arrived there. 11. Kalyanmal PW 4, who was Head-Copyist, and who was also present in the room, has stated in the court that when the accused was asked to explain about the currency-note of Rs 10/-, recovered from his pocket, he replied that the said note was kept in his pocket. This witnesses has further stated that Tarachand, after catching the hand of the accused, had brought him outside the room and put his hand inside the pocket of the accused's pant; and then, the accused was caught by the police people. 12. Prabhusingh PW 6, who is an employee of the police department, has stated that after the recovery of the amount, the accused was asked to explain about the recovery of the note, to which, Gajanand had told that Tarachand had kept that note in his pocket. Tarachand told that he was also on LDC as was the accused, and so, the amount would be taken back after taking tea. 13. PW 7 Ramswaroop, Head-constable has also stated that when the accused was asked to explain about the recovery of currency note from his pocket, the accused had replied that Tarachand had came to him, demanded a copy of the order and put the currency-note of Rs. 10/- in his pocket. He has further stated that while the two were going to Canteen for tea, it was told that Tarachand was also clerk and the amount would be returned after the tea . This portion of the statement of this witness, finds corroboration to the accused. What ever was stated by the accused at the time of the recovery of the amount is a probable explanation. The money was not demanded by him. There is no evidence on the record to show that before passing of the amount to the accused,, he bad demanded it. Even Tarachand in his statement has not stated that before delivering the copy, the accused had demanded the money from him. Therefore, there was no demand from the side of the accused, and the copy was given to Tarachand. The currency-note of Rs. Even Tarachand in his statement has not stated that before delivering the copy, the accused had demanded the money from him. Therefore, there was no demand from the side of the accused, and the copy was given to Tarachand. The currency-note of Rs. 10/-was kept by Tarachand in the pocket of accused, which is clear from the statements of the prosecution witnesses. This is a probable explanation fully corroborating the statements of the prosecution witnesses. 14. The learned Counsel for the appellant, in support of his argument, relied on the case of Mohinder Pal v. The State of Punjab 1982(2) Crimes 850 , where in, it was observed that when the defence version seems more probable and is even supported by prosecution witnesses then the conviction of the accused based on partizan evidence cannot be sustained. 15. In the case of Atmaram v. State of Haryana 1984 (2) Crimes 805 it was observed that a conviction for taking bribe on the testimony of tainted and interested witnesses, cannot be sustained. 16. The case-law cited by the learned Counsel for the appellant, were perused. Two witnesses on behalf of the prosecution are Police Officials. The other independent witnesses, namely, Madanlal, Tirath Singh and Kalyanmal have not supported the prosecution case. All these witnesses has corroborated the explanation given by the accused with regard to the recovery of the currency-note, The accused has only to show probability; and in this case, the accused is found to be probable. So, conviction cannot be based merely on the ground of recovery. This probability is supported by the prosecution witnesses also. In the case of Gopal Krishan v. The State 1980 Cr.LJ (NOC) 160 , it has been observed that mere acceptance of GC-note without any proof of demand or acceptance and mere recovery of money is not sufficient for conviction. 17. In the present case, as mentioned above, there is no proof of demand of bribe. The explanation given by the accused is corroborated by the prosecution witnesses. Under such circumstance, the recovery of Rs. 10/-, is not sufficient to sustain the conviction. The prosecution has to prove that that amount was demand, on demand, the money was paid, and it was accepted by the accused. The explanation given by the accused is corroborated by the prosecution witnesses. Under such circumstance, the recovery of Rs. 10/-, is not sufficient to sustain the conviction. The prosecution has to prove that that amount was demand, on demand, the money was paid, and it was accepted by the accused. To the contrary, the evidence is that there was no demand from the side of the accused; and it was also in the evidence that the amount was not paid by Tarachand, but, it was thurst into the pocket of the accused by him. So, in view of all these circumstances, the conviction of the accused, cannot be maintained. 18. The very important aspect to be seen is as to what be the motive of accepting the bribe The case of the prosecution is that the decoy. Tara Chand had applied for a certified copy of an order on 3lst August, 1977. The application which was submitted by Tarachand, had been produced by the prosecution, from which, it is found that he wanted a copy of the order sheet dated 29th August, 1977 this copy is Ex.P 4 The proceedings dated 29th August, 1977, show that the counsel for the parties were present, they wanted to file certain documents, so the court fixed the case for 12th October, 1977 for filing of documents and for framing of issues. So, copy of this order sheet was taken, but, now the case of Tarachand is that he had demanded a copy of the order rejecting his prayer for temporary-injunction by the court It might be that on 29th August, 1977 his application for temporary injunction was rejected by the court, and he might be in need of the copy of that order, but, by mistake or per chance, the fact is that the application was with regard to copy of the order-sheet dated 29th August, 1977, which was supplied to him. There is not an iota of evidence in show that from 31st August. 1977, when the application for copy was submitted. Tarachand was demanding copy of the order of rejection of his temporary injunction He has not said that he had asked the accused to give him that copy. There was no application for issuing copy of that order rejecting his injunction application. 1977, when the application for copy was submitted. Tarachand was demanding copy of the order of rejection of his temporary injunction He has not said that he had asked the accused to give him that copy. There was no application for issuing copy of that order rejecting his injunction application. So, I do not think that there is any reason or proof for demanding some money for the delivery of the copy of the order-sheet dated 29th August, 1977. That order sheet was of no importance, on this date, the counsel for the parties were present and the had requested the court to grant time for filing certain documents, and time was granted by the court fixing 12th October, 1977 for framing of issues. So, this order sheet was not of any importance, and it cannot be believed that for an unimportant copy of an order-sheet, the clerk would demand bribe. On 31st August, 1977, the application was submitted, and the copy was given on 14th October, 1977. The order of which the copy was demanded, was of three lines, and there was no hence in delaying the supply of the copy, because, it was of an unimportant matter. So, the prosecution was to prove that Tarachand had applied for the copy rejecting his application for temporary injunction, by the court. But, as there was no application for the copy of this order, there is do jurisdiction for believing that the accused would demand Rs. 10/- for supplying this copy of order-sheet dated 29th August, 1977 (Ex.P 4). Thus, there could not be any motive to demand any bribe, rather, demanding bribe has not been proved by the prosecution, which is very essential for them to prove that the accused had demanded bribe and on his demand, the bribe was given, and he had accepted it as bribe. Unless it is proved, no case is made out against the accused at all and he cannot be convicted. This is lacking in this case, as there is no evidence to this effect. 19. In the case of Shashi Bhushan v. State of Orissa 1985 (2) Crimes 160 , it has been observed that in a bribary case, the position of bribe-giver is that of an abettor of a crime, and that an abettor is an accomplice and the testimony of such a witness must be corroborated by independent and reliable sources. 19. In the case of Shashi Bhushan v. State of Orissa 1985 (2) Crimes 160 , it has been observed that in a bribary case, the position of bribe-giver is that of an abettor of a crime, and that an abettor is an accomplice and the testimony of such a witness must be corroborated by independent and reliable sources. Relying on this case, the learned Counsel for the appellant argued that in the present case, there is no evidence corroborative to that of the decoy, Tarachand The solitary statement on the basis of which, the accused has been found guilty by the trial court, is the testimony of Tarachand decoy only. According to the trial court, this witness is of sterling worth, and on his lone testimony, the accused has been found guilty In this context, the statement of Tarachand was minutely read There is no sense in repeating his entire statement running in 14-16 pages, but, the crux of his statement is that be is a witness of most unreliable character. He has given statement in the Police also Apart from that statement, he has stated so many facts in his court-statement to prove his case So, this improvement show that he is a person of such a conduct, who should not be believed at all. If what ever he has stated in the court, is correct then, he should have stated all these before the Police at the time of recording his statement under Section 161, Cr.PC. Besides this, he has admitted that prior to this incident, he has reported against 4-4 persons more, to the ACD. So, he is in the habit of complaining against officials of Government Departments and arranging traps by the ACD. It shows that this witness is a habitual informer or a habitual abettor, and his only motive is to go on reporting against the Government servants, and his aim is to harass those persons. A person who can repeat such complaints off and on, cannot be relied at all and cannot be said to be a witness of sterling worth. 20. Apart from this fact, on the basis of solitary statement of Tarachand which has not been corroborated by the other prosecution witness rather contradicted by them, it is found that the decoy, Tarachand is not at all worth reliability and credibility. 20. Apart from this fact, on the basis of solitary statement of Tarachand which has not been corroborated by the other prosecution witness rather contradicted by them, it is found that the decoy, Tarachand is not at all worth reliability and credibility. So, treating him to be a witness of sterling worth and placing reliance on his testimony by the trial court, is nothing but an erroneous approach, and the court has committed error in believing this witness. 21. In view of my above discussion, I find that the trial court has not correctly appreciated the statements of the witnesses, it has arrived at an erroneous conclusion finding the accused-appellant guilty of the charges levelled against him not understanding the proper legal aspects with regard to Section 4 of the Act and not correctly appreciating the position of the decoy, Tarachand, himself. The judgment of the trial court cannot, therefore, be sustained. 22. In the result, the appeal is accepted. The appellant having not been found guilty Under Section 161, IPC and Section 5(1)(d) (2) read with Section 5(2) of the Act, he is here by acquitted of these offences. He is on bail. He need not surrender to his bail-bonds, which are cancelled.Appeal accepted. *******