JUDGMENT 1. - This appeal has been directed against the judgment dated 26-3-1980, by which, the appellant has been found guilty of the offence u/s.161 I.P.C. & u/S.5(l)(d) read with Sec. 5(2) of Prevention of Corruption (P.C.) Act. He has been sentenced to one year's R.l. and a fine of Rs. 200/- on each count and in default of payment of tine, to further undergo 2 month's R.I. 2. The appellant was posted as Surveyor in the Mines Department On 17-10-1977 his job was to demarcate the mines sites. Munir Khan applied for lease of two mines to the Assistant Engineer Mines, Bundi. The application was sent to accused Bhanwar Lal. Bhanwar Lal correctly demarcated one plot but demarcated wrongly for the other plot. Munir Khan complained against the accused-appellant to the higher authorities but with no avail. After some time the accused-appellant asked Munir Khan that he did all against him but failed to get the plot. It is further alleged that Bhanwar Lal demanded Rs. 100/- from Munir Khan and said that if the amount is paid he could demarcate the plot correctly. Munir Khan requested for a week's time. Meanwhile Munir Khan approached the Anti Corruption Department and submitted a report Ex. P2 to the Addl. Superintendent of Police, Anti Corruption Department on 3-12-77. The Addl. S. P. laid a trap against the accused-appellant and caught the accused on the spot and recovered the tented amount from his possession. A case was registered against Bhanwar Lal appellant and after obtaining necessary sanction challan was submitted in the Court. 3. The trial Court framed charge against the appellant u/S. 161 I.P.C. and u/S. 5 (I) (d) read with Sec. 5 (2) of P. C. Act. 4. The accused did not plead guilty. His contention was that Munir Khan took a loan of Rs. 100/- for repairs of his motor-cycle and on 3-12-1977 he returned that money. He has further stated that no case of Munir Khan was pending with him. In defence the accused has examined three witnesses. 5. The learned trial Judge found that the case has been established by the prosecution and he held the accused appellant guilty of the charges levelled against him and sentenced him as mentioned above. 6. The learned counsel for the appellant argued that on account of enmity this case has been falsely made out. 5. The learned trial Judge found that the case has been established by the prosecution and he held the accused appellant guilty of the charges levelled against him and sentenced him as mentioned above. 6. The learned counsel for the appellant argued that on account of enmity this case has been falsely made out. Munir Khan submitted an application for grant of licence on two plots; one application was granted and licence with regard to that plot was issued and the application for the second plot was not granted because that plot had already been allotted to another person. As the application was not granted for the second plot Munir Khan became annoyed and he complained against the appellant to Assistant Engineer, Executive Engineer and ultimately to Superintending Engineer. As the lease was not granted with regard to second plot Munir Khan in order to take revenge has falsely submitted a report to Anti Corruption Department. The argument was that if the appellant wanted to take bribe from Munir Khan he would not have demarcated the first plot. As the plot was not vacant the appellant told him that it was not possible to accept this second application. It was also argued that Prahlad Singh PW 3; is the prosecution witness. This Prahlad Singh has also applied for giant of lease and he was granted that lease. He has specifically stated that for granting lease no money was demanded by the appellant from him. His application was also dealt by the appellant. So if the accused appellant wanted to take bribe for granting lease, he would have demanded the bribe from Prahlad Singh as well as from Munir Khan for the first application which was granted. So actually the conduct of the appellant was that he was not in a habit of taking bribe for granting lease. 7. It was also argued that when the second application was not accepted, Munir Khan complained against the appellant to the higher authorities. This fact was made known to the appellant that a complaint has been made against him. The appellant knowing that Munir Khan has complained against him to the higher authorities and even then he will demand bribe from Munir Khan, this cannot be imagined. When there was no vacant plot there was no question accepting his second application. Therefore, this argument has substance. 8. The appellant knowing that Munir Khan has complained against him to the higher authorities and even then he will demand bribe from Munir Khan, this cannot be imagined. When there was no vacant plot there was no question accepting his second application. Therefore, this argument has substance. 8. It was also argued that the application for grant of lease was submitted on 13-8-77. Demarcation for one plot was on 17-10-77 and for the second plot Munir Khan was informed that it is not possible because the plot is not vacant and it has been demarcated with other mining lease. Munir Khan kept silent for number of days. On 26.11.77 he went to the offence of Assistant Engineer Bundi and met Bhanwar Lal and then Bhanwar Lal demanded 100/- Rs. This thing happened on 26.11.77 but the report Ex.P.I was submitted by him on 3.12 77. He kept silent for some period and immediately did not take any step. No explanation has been given for not reporting to the A.C.D. immediately. 9. Shri B.K. Bhushnam (PW.5) has been examined by the prosecution who is working as surveyor Mines Deptt. Jhalawar. Has statement indicates that the plan which was submitted by Munir Khan alongwith his application was not correct and this was the reason that his demarcation could be done. He prepared a master plan and found that the area which was applied by Munir Khan comes under the demarcated area allotted to Bundu Khan and Shobha Devi. It means that Munir Khan applied for such plot which was not vacant plot but was allotted to other persons. The appellant was (illegible) in reporting that this plot cannot be demarcated in favour of Munir Khan because it was not vacant. When such report was on the record it cannot be believed that the appellant would change this position even some amount is paid to him as bribe. So this fact also falsities this story. Bundu Khan (PW6) has been examined and he has stated that Munir Khan wanted the plot at that site where he was allotted the plot. The accused did not give Munir Khan that plot which resulted that there was dispute between Munir Khan and Bhanwar Lal. This witness corroborates the contention of the appellant that as Munir Khan was annoyed with Bhanwar Lal he submitted this false report to A.C. Department. The accused did not give Munir Khan that plot which resulted that there was dispute between Munir Khan and Bhanwar Lal. This witness corroborates the contention of the appellant that as Munir Khan was annoyed with Bhanwar Lal he submitted this false report to A.C. Department. Therefore, the contention of the appellant is supported by the prosecution witness. 10. The statement of Munir Khan (PW.4) has been perused. He has stated that after submitting the application he went to Bundi and met Bhanwar Lal who demanded Rs. 100/- for making the plot in his favour. He has not stated as to when he went to Bundi and when Bhanwar Lal demanded money. After submitting the report Ex P.I on 3.12.77 he came to give the bribe amount to Bhanwar Lal. In his statement he has stated that Bhanwar Lal saw him at his office, he came out and demanded bribe money. So this is the second demand by Bhanwar Lal. When this trap was laid Prahlad Singh (PW 3) was with decoy Munir Khan. Prahlad Singh was sent by Addl. S.P. to watch and hear the conversion between Bhanwar Lal and Munir Khan and witness the passing of the bribe money. So Prahlad Singh is a very important witness. Prahlad Singh has stated that when Bhanwar Lal came out of the room Munir Khan told Bhanwar Lal that take amount which you have demanded. So there is difference in the statement of Prahlad Singh (Pw 3) and Munir (PW 3) and Munir Khan (PW 4). Munir Khan has stated that when Bhanwar Lal case out he demanded the bribe amount while Prahlad Singh states that Munir Khan told Bhanwar Lal take the money which you have demanded. It means what money Bhanwar Lal demanded has not been sooked by Bhanwar Lal at that time. The contention of the appellant was that some time before Munir Khan took a loan of Rs. 100/- for the repairs of his motor-cycle 3-12-77 Munir Khan returned that amount to him and later on this amount was recovered from his possession. To support this contention the accused has examined Abid Hussain (DW 1) who is a motor cycle mechanic and he has corroborated the contention of the accused-appellant. He has stated that Munir Khan came to his workshop for getting repairs his motor cycle. The charges were 200/- Rs. To support this contention the accused has examined Abid Hussain (DW 1) who is a motor cycle mechanic and he has corroborated the contention of the accused-appellant. He has stated that Munir Khan came to his workshop for getting repairs his motor cycle. The charges were 200/- Rs. and he told him that you come in the evening and take the motor cycle. So this statement shows that Munir Khan needed money for getting his motor cycle repaired. Bhairon Lal (DW 2) has stated that Munir Khan came to the office and gave 100/- Rs. to Bhanwar Lal towards the loan which he had taken. Jeth Mai (DW 3) also supports the contention of the accused-appellant. Prahlad Singh (PW 3) has admitted that the motor cycle of Munir Khan needs repairs at Bundi and he got it repaired. The repair cost was about 225/- or 250/- Rs. He has further stated that Munir Khan told him that he will bring money from Bhanwar Lal or other person for making payment to the mechanic. So indirectly this witness Prahlad Singh also corroborated the contention of the accused appellant. At the time of framing charge the appellant while denying the charge contended that the amount was paid by Munir Khan towards loan which he took from him. So from very beginning Bhanwar Lal gave his explanation about the recovery of this amount. This explanation is a probable explanation and ultimately supported from the statement of Prahlad Singh (PW 3) and three defence witnesses. 11. In the case of R.L. Bhatnagar v. State of Raj. 1989 RCC 94 the appellant was convicted under the Prevention of Corruption Act. The appellant was caught red handed taking bribe and he gave explanation that the complainant returned the amount of loan. This explanation was probable explanation. No doubt when the amount has been recovered presumption of taking money is drawn but this presumption can be rebutted if probable explanation is given by the accused. So while accepting that appeal the appellant was not found guilty of the offences and was acquitted. In the present case also the amount was recovered from the possession of the appellant. The presumption is that he has received this amount from Munir Khan being bribe money but he gave an explanation that Munir Khan took a loan from him and he returned this amount today. In the present case also the amount was recovered from the possession of the appellant. The presumption is that he has received this amount from Munir Khan being bribe money but he gave an explanation that Munir Khan took a loan from him and he returned this amount today. This explanation is a probable explanation and this explanation is rebuttal to the presumption of taking the bribe and I see no reason to discard this probable explanation. 12. Similarly, in the case of Shiv Nandan v. State 1989 RCC 290 , it has been observed as under:- "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 returned by the decoy. None of the prosecution witnesses has deposed before the trial Court or in their police statements that the aforesaid statement of the appellant was controverted by the decoy. If the decoy witnesses 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." 13. In the present case also when the amount was recovered from Bhanwar Lal he immediately stated that Munir Khan took a loan of Rs. 100/- from him for repairing his motor cycle and he returned that amount today. This fact was not controverted by decoy Munir Khan in presence of Addl. S.P., Anti Corruption Department, when the amount was recovered. 14. Thus in view of my discussion above and looking to the record and the principles laid down in the cases cited by the learned counsel for the appellant I found that the prosecution has failed to prove the case beyond reasonable doubt against the appellant. The conviction of the appellant as held by the trial Court cannot be maintained. 15. As a result, the appeal is accepted. The appellant is not found guilty of the offence u/s. 161 IPC and u/S. 5 (1) (d) read with Sec. 5 (2) of P.C. Act and his conviction and sentence are set aside. The appellant is on bail. His bail-bonds are cancelled. He need not surrender.Appeal accepted. *******