JUDGMENT 1. - Govind Prasad (appellant), who was Patwari of Patwar Circle Khandeep, Tehsil Gangapur City District Sawai Madhopur (Rajasthan) at the relevant time, has challenged his conviction & sentence for the offence under Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (for brevity, Act). He has been sentenced vide judgment dated 23.1.1988 of the Special Judge (A.C.D. cases), Jaipur, to undergo simple imprisonment for one year & pay a fine of Rs. 200/- (in default, further S.I. for one month).Factual matrix: 2. A written report (Ex. P. 1) was lodged before the Deputy Superintendent of Police (Dy. S.P.), Anti-Corruption Department (A.C.D.), Sawai Madhopur by Mogriya (Pw 1) on 19.5.1984 alleging therein that in the field of his nephew Kalla situated adjacent to his field there was a Neem tree at the common boundary line of their fields and it had dried up, therefore, it was cut down by Kalla. This fact came to the notice of the appellant-Patwari during his inspection of the site and since the tree was public one, he interrogated Kalla who stated that it was cut down by Moogaria. It had also been stated in the report that the neem tree was seized by the appellant (Patwari) and entrusted it to Badri Meena but, Moogariya (PW 1) was called by the appellant who demanded a bribe of Rs. 300/- from him for not reporting the matter to the police. A sum of Rs. 200/- is said to have agreed to be paid by Mogriya to the appellant. 3. The said report (Ex. P. 1) had been presented to Ram Kishore (PW 12) who summoned two witnesses, Pradip Kumar(Pw8)& Rakesh Singh (PW 9) and they were introduced to Mogriya who produced two currency notes of the denomination of Rs. 100/- each before Ram Kishore (PW 12) upon which he put his initials and after demonstration of the use of phenolphthalein powder, the currency notes were treated with the powder and Mogriya was instructed to deliver them to the appellant on demand. The motbir witnesses (supra) were directed to witness the transaction of money and hear the talks between Mogriya & the appellant. Ex. P. 2 memo was prepared. 4. The motbir witnesses (supra) were directed to witness the transaction of money and hear the talks between Mogriya & the appellant. Ex. P. 2 memo was prepared. 4. Ram Kishore (PW 12) along with the motbir witnesses, the complainant & the members of the trap party are said to have proceeded to Gangapur City by jeep and reached there in the evening of 19.5.1984. Mogariya (PW 1) was allegedly sent to the appellant who bad not come from Khandeep and therefore, the trap party is said to have stayed during night at Gangapur City. Next day at about 8 a.m. the trap party reached the Railway Station of Ganganpur City. The appellant is said to have alighted from the train and come down, and outside the railway station started talking with rickshaw-pullers where the decoy (PW 1) met him. 5. The prosecution case unfolded is that the appellant then enquired from the decoy for money; that Mogriya (PW 1) took out the tainted currency notes from his pocket and delivered them to the appellant who put them in his bush-shirts pocket and in the meantime, Mogariya (PW 1) gave the instructed signal to the trap party thereby Ram Kishore (PW 12) promptly reached near the appellant introduced himself and then started questioning him about the currency notes worth Rs. 200/-to which the appellant answered that Mogriya had borrowed the said money from him and he had returned the same to him. 6. Thereupon both the hands of the appellants were washed off in the solution of sodium carbonate which turned into pink colour and its liquid was prepared in the bottles (Art. 2&3). Ram Kishore (PW 12) after taking the currency notes out of the pocket of the bush-shirt of the appellant got its numbers tallied with the numbers noted earlier in memo (Ex. P. 2) and the notes were seized vide Ex. P. 3. The pocket of the bush shirt was washed in the aforesaid solution which also turned into pink colour and its liquid was preserved in the bottle Article 1). 7. After observing necessary formalities and usual investigation, and obtaining sanction order for the prosecution of the appellant (Ex. P. 8), he was challenged in the Court. The charges were read over and explained to appellant. The appellant pleaded not guilty to the charges and claimed trial. The prosecution examined witnesses in support of its case. 8. 7. After observing necessary formalities and usual investigation, and obtaining sanction order for the prosecution of the appellant (Ex. P. 8), he was challenged in the Court. The charges were read over and explained to appellant. The appellant pleaded not guilty to the charges and claimed trial. The prosecution examined witnesses in support of its case. 8. The appellant admitted the receipt of Rs. 200/- but his case in his statement recorded under Section 313, Cr. P.C. and from the very inception of the trap, that there was no question of taking any bribe; that neither he demanded any bribe from Mogriya (PW 1) nor did he receive any bribe money and that, he had advanced a loan of Rs. 200/- to Mogriya who had actually returned the money lent by him and further that, his relations with another Patwari Ram Singh were strained and Ram Singh in collusion with Mogriya entrapped him falsely due to sheer enmity. The accused examined seven witnesses in his defence. 9. The learned trial Court after considering the evidence on record led by both sides and believing the prosecution had come to the conclusion that the prosecution had succeeded in establishing its case against the appellant. It accordingly, convicted & sentenced the appellant as indicated in first part of this judgment. Hence this appeal. 10. Having heard the rival contentions of the learned Advocate for the appellant and the learned Public Prosecutor and perused the entire record, in my view, in view of the case put forward by the prosecution and the appellant, stated above, the questions require to be examined are thus:- (1) Whether the appellant had some motive, cause or reason to demand any bribe? (2) Whether as per the prosecution case unfolded the appellant demanded bribe for not reporting the matter to the police, of cutting down the neem tree which had been allegedly at the boundary wall of the fields of the decoy & his nephew, Kalla, and whether the neem tree was cut or not ? (3) Whether any amount was given by the decoy as illegal gratification to the appellant and whether he accepted Rs. 200/- as illegal gratification so as to give unwarranted advantage to the decoy ? (4) Whether the prosecution evidence which according to the appellants counsel lacks independent corroboration, is worthy of credence? (5) Whether the decoy repaid the sum of Rs. 200/- as illegal gratification so as to give unwarranted advantage to the decoy ? (4) Whether the prosecution evidence which according to the appellants counsel lacks independent corroboration, is worthy of credence? (5) Whether the decoy repaid the sum of Rs. 200/- payable towards his borrowed money alleged to have been paid by the appellant as is the defence case? (6) Whether the defence of the appellant is probable ? Re. question No. 1 & 2- 11. The prosecution case from the very inception was that the appellant demanded bribe for not reporting the matter to the police about the theft of the tree which is said to have been cut by one Kalla and then given in the supardgi of Badri. So, it was necessary for the prosecution to establish that the neem tree was cut down. Admittedly, Kalla & Badri both have not been produced by the prosecution. Even Badri has been produced by the defence as D.W. 2 who stated that no neem tree was entrusted to him. Only the decoy has been produced to support the prosecution case of the alleged cutting of the neem tree. Kalla was an important witness because as per the prosecution case, itself, it was Kalla who gave this information that the decoy had cut the tree and committed its theft. In the absence of his evidence, there is no independent version of the decoy to support its story and his evidence without independent corroboration cannot be accepted. 12. The dried wooden material from the neem tree is alleged to have been seized and handed over to Badri (DW2). So, Badri was also an important witness so as to corroborate the prosecution story. But, as stated above, Badri has been produced as defence witness. 13. Mogariya (PWI) the decoy deposed that the investigating agency had gone to the place from where the neem tree had been cut but, surprisingly enough, no such evidence has come forward from the prosecution side nor any site inspection report has been produced before the trial Court. Badri who appeared as defence witness (DW2) deposed that no dry wood from the neem tree had been handed over to him making him as supurddar. Mogariya (PWI) himself admitted that he never complained of the cutting of the neem tree before any authority nor the appellant had seen the site of cutting the neem tree in his presence. Badri who appeared as defence witness (DW2) deposed that no dry wood from the neem tree had been handed over to him making him as supurddar. Mogariya (PWI) himself admitted that he never complained of the cutting of the neem tree before any authority nor the appellant had seen the site of cutting the neem tree in his presence. Ram Singh (PW7) Patwari concerned area, has stated to have not seen any neem tree cut at the site. In the presence of such an evidence on record, it is thus clear that the trial Court has committed serious error in holding that there was sufficient cause or reason to have damanded illegal gratification. Such a finding based on no legal evidence is not sustainable because when the prosecution has completely failed to prove that any neem tree was ever existing in between the common boundary wall of the decoy and Kalla (his nephew) as is the version given out by the decoy, himself, in his report (Ex P.l) and even the prosecution has failed to prove that the neem tree was cut by any one. Therefore, it cannot be held that the appellant had got an opportunity to have reported the matter to the police for alleged commission of theft or cutting of the neem tree. Therefore, I hold that the important chain of the circumstances on the basis of which the appellant could be held that there was sufficient cause for him for making a demand of illegal gratification is completely lacking so as to make the appellant responsible for any criminal misconduct. Hence the prosecution failed to prove beyond reasonable doubt that the appellant had any motive, cause or reason so as to demand any bribe; that there was a neem tree at the boundary wall of the fields of the decoy & his nephew Kalla. Since the prosecution failed to prove that there was any neem tree, there remains no question to be decided whether the neem tree was cut or not. In this view of the matter, there was no occasion to report the matter to the police of cutting down the neem tree or its alleged theft when it never existed at the fields and thereby the appellant had no motive or cause or reason to have demanded any bribe.Re. question No. 3, 5 & 6 - 14. In this view of the matter, there was no occasion to report the matter to the police of cutting down the neem tree or its alleged theft when it never existed at the fields and thereby the appellant had no motive or cause or reason to have demanded any bribe.Re. question No. 3, 5 & 6 - 14. According to Mogariya (PWI), himself, he had lent an amount of Rs. 200/- from one, Meethia tor giving it to the appellant as bribe. But, Meethiya has not been produced by the prosecution so as to establish the version and story put by the decoy. Non-production of Meethiya causes serious doubt on the story of the decoy, and makes his version unworthy of credence. Withholding him raises an adverse inference that if he would have been produced by the prosecution he would not have definitely supported the prosecution story. And, Meethiya has given the amount to the decoy on his demand for being given to the appellant as repayment of advance and not for being given it to the appellant as bribe. 15. 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 circumstances under which the same had been received. In the case at hand, from very inception at the relevant time of the trap, the appellant has been stating that the money was given as repayment of the advanced lent by the decoy. Mere recovery of the money from the accused is not sufficient to prove acceptance of bribe with consenting mind. The recovery of money coupled with other circumstances leading to circumstances that accused received gratification can be acted upon for drawing presumption under Section 4(1) of the Act. In this view of the matter, it was obligatory on the part of the prosecution to prove that the gratification was accepted by the accused with consenting mind and further to prove some more significant circumstances as to draw presumption under section 4 of the Act. And, the presumption would stand rebutted if the accused shows a preponderance of probabilities in his favour. 16. The prosecution evidence suffers from incongruities and inconsistencies in material particulars. And, the presumption would stand rebutted if the accused shows a preponderance of probabilities in his favour. 16. The prosecution evidence suffers from incongruities and inconsistencies in material particulars. It could not prove beyond reasonable doubt as to at what place, the decoy met the appellant and paid Rs. 200/. Some stated that it was outside the waiting room whereas some deposed that it was inside the waiting room. Mogariya (PW 1) admitted in cross examination that since the train had arrived at the railway platform there were passengers hullabaloo thereby it was difficult to have heard and understood the talks in between them. In this state of evidence, the evidence of mctbir witnesses who were instructed to hear the talks in between the decoy & the accused when the decoy was to hand over the tainted currency notes during trap, cannot be held to be worthy of credence as they were admittedly far away more than the decoy who could have listened the talks held between the decoy & the appellant so as to prove that the gratification was accepted by the appellant with consenting mind. When the decoy himself admitted that on account of the trains arrival there had been passengers hullabaloo thereby it was not possible to have heard and understood the talks held there, therefore, it is far-reaching that the motbir witnesses who has been held by the trial Court to be supporting persons to prove the version of the decoy, could have proved the prosecution case beyond reasonable doubt and their evidence in my view was not worthy of any credence in the presence of the evidence of the decoy himself. Their mysterious remoteness only adds suspicion to their evidence which is dubious, with apparent concoction. 17. The case of the prosecution is that an amount of Rs. 200/- was given to the appellant when he was about to board cycle rickshaw and its puller was present at that time. Rickshaw-puller appeared as D. W. 7 who completely denied the giving of any amount to the appellant in his presence. Another significant feature is that Mogariya (PWI) admitted in his cross-examination that in the presence of Bhanwarpal Meena the amount of Rs. 200/- was given to the appellant. Bhanwarpal Meena appeared as defence witness who deposed that the appellant had advanced as loan to the tune of Rs. 200/- to the decoy. Another significant feature is that Mogariya (PWI) admitted in his cross-examination that in the presence of Bhanwarpal Meena the amount of Rs. 200/- was given to the appellant. Bhanwarpal Meena appeared as defence witness who deposed that the appellant had advanced as loan to the tune of Rs. 200/- to the decoy. Bhanwarpal Meena in his statement deposed that Mogaria came to him and asked to lend a sum of Rs. 200/- for his ailing sister so as to get her medically treated and he refuted but on his persistence, Patwarji (appellant) provided him Rs. 200/- as advance to Mogariya, and that one day, he came to Gangapur then at the railway station, he met with Mogariya who told him that he had not repaid the advance amount to the Patwarji and he was interested to make repayment on that day its thereupon he (Bhanwarpal) replied that the Patwariji had been travelling with him in the train and then Mogariya searched the Patwarji who were just to board the rickshaw outside the station and there in his presence (witnesss) had given Rs. 200/- to the appellant. All the defence witnesses corroboratedly stated that Rs. 200/- was given to the appellant as repayment of the advance/loan which was taken by the decoy. The defence case was also that the appellant was entrapped at the instance of Ramsingh-his successor who had strained relations. The strained relations have been proved by the appellant in his defence evidence. 18. It is admitted fact of the prosecution that when the appellant was caught red handed and when he was explained about the payment of Rs. 200/- he had answered that he had not received the amount of Rs 200/- as illegal gratification but the same was paid to him by the decoy towards the debt owed to the decoy by the appellant. Bhanwarpal Meena who was Sarpanch of the Panchayat Samiti supported the defence version and his testimony is worth credence and cannot be discarded wholly which makes the defence probable. 19. One more significant features which makes the prosecution case suspicion is the circumstances as to how has the decoy come to know that the appellant would be arriving at the Gangapur Railway Station from Khandeep by a train and bow had the trap party reached the Gangapur City Railway Station at whose information. 19. One more significant features which makes the prosecution case suspicion is the circumstances as to how has the decoy come to know that the appellant would be arriving at the Gangapur Railway Station from Khandeep by a train and bow had the trap party reached the Gangapur City Railway Station at whose information. None of the persons from the trap party including the decoy, himself, even deposed that they were in the knowledge of the fact in anticipation that the appellant would have been reaching by train from Khandeep to Gangapur City and would have been alighting at a particular time. None of the prosecution witnesses nor the decoy stated that appellant had choosen the railway station as the place to accept bribe, nor the decoy had written in his report given at the earliest point of time (Ex. P. 1) that the appellant had choosen the place for accepting the bribe at the railway station, nor the decoy claimed that there was pre-settlement between them to meat at Gangapur City railway station to accept the bribe after he would alight the train. In this state of thing, in my view, the presence of the Dy. S. P. alongwith members of the trap party at Gangapur City Railway station without any knowledge to the decoy and other motbir witnesses or the member of the trap party, raises an inference that the trap was arranged to give a vent to the annoyance and hatred feelings of Ram Singh. 20. An analysis of the evidence adduced by the prosecution does not in my opinion lead to an unerring certainty that the appellant had accepted Rs. 200/-from the decoy as illegal gratification so as to give un-warrant advantage to the decoy. As already held, since the prosecution failed to prove the existence of the neem tree alleged to have been cut or stolen from the fields of the decoy & Kalla, there appeared to be no cause or reason for the appellant muchless motive to have reported the matter to the police for its alleged theft and cutting so as involve the decoy in criminal case and in this view of the matter, there was no chance for the appellant to have demanded any money muchless Rs. 200/- as illegal gratification acting with any dishonest or corrupt motive abusing his position as Patwari. 200/- as illegal gratification acting with any dishonest or corrupt motive abusing his position as Patwari. The entire prosecution evidence lacks independent corroboration and is not worthy credence so as to bring home the charges levelled against the appellant beyond reasonable doubt. The material witnesses produced for unfolding of the prosecution case as discussed above, has left some yawning gaps in the evidence which I have found very difficulty to bridge. 21. Further, from the above discussion of the evidence, it is precisely clear that the circumstantial and documentary evidence create room for doubt that the defence version was probably true and the version of the decoy cannot be accepted without corroboration so as to bring home the charge against the appellant and that, so many jerks and jolts appear to have been given to the prosecution case by contradictory version and that the story of demand of bribe by the appellant from the decoy as unfolded by him on the pretext of report against him for alleged thefts or cutting of the neem tree which too remained unproved to be in existence at the fields, is not proved. Thus, the very story propounded by the decoy negates the presumption, nipping it. as it were in the bud. Be that as it may. the rule of presumption engrafted in Section 4(1) could not be availed of by the prosecution. This being the position, the appellant could not be held guilty of the charge levelled against him with the aid of Section 4 of the Act. And, the presumption engrafted in Section 4(1) of the Act on account of recovery deserves to be dismissed out of hand forthwith. As stated in any event, even if presumption is raised, the appellant has rebutted the presumption by cross-examination of the decoy and in his statement under Section 313, Cr. P.C. along with his defence witnesses. The defence story that the decoy repaid the sum of Rs. 200/- at the railway station as payable towards his borrowed money alleged to have been paid by the appellant, has been corroborated by the defence witnesses. P.C. along with his defence witnesses. The defence story that the decoy repaid the sum of Rs. 200/- at the railway station as payable towards his borrowed money alleged to have been paid by the appellant, has been corroborated by the defence witnesses. In my view, the presumption raised against the appellant stood completely rebutted, inasmuch as the prosecution did not prove the alleged motive of the appellant behind the demand of alleged bribe and on the contrary, the appellant fully established his story given out at the very inception of the trap and reiterated in the statements under Section 313, Cr. P.C. and that of his defence witnesses during trial and he offered an explanation and defence which is probable keeping in view the evidence adduced on record by both sides therefore, the presumption under Section 4 stands rebutted. The ultimate conclusion is that in the instant case, the prosecution has failed to bring home the charges to the appellant beyond a reasonable doubt. 22. Accordingly, I allow this appeal, set aside the impugned conviction & sentence of the appellant and acquit the appellant. He is on bail and need not surrender. His bail bonds stand cancelled. The record be sent back.Appeal allowed. *******