JUDGMENT 1. - This appeal is directed against the judgment dated 26-3-1984 passed by Special Judge for C.B.I. case for Rajasthan, Jaipur where by the learned Special Judge found the accused appellant guilty for the offence under Section 161 IPC and sentenced him to suffer rigorous imprisonment for a period of one year. The learned Special Judge also found the appellant guilty for the offence under Sec. 5(1) (d) read with Section 5 (2) P.C. Act and on this count also sentenced has been passed against the appellant for a period of 1 year RI and to pay a fine of Rs. 300/-(in default of the payment of fine, further to under go three months SI). Both the sentences were ordered to run concurrently. 2. Briefly stated the facts of the case are that on 23-11-1974 one Shri Badri (PW-1) lodged a report (Ex P. 1) Inspector, C.B.I., who was camping at Khetri Copper Project. In that report it was alleged that Badri was running a tea shop in Khetri Copper Project in a wooden cabin (Khokhas). Further that he had taken cabin for tea stall and put in sector No. 3 and that he was running the tea stall in partnership of Shri Madan Lal and that Shri Gopi Chand Bhargava, Senior Surveyor Copper Project, was a corrupt Officer and was always taking bribe from the people. In was further alleged in the report that he had demanded bribe when he had supplied bricks and had harassed him. Few days earlier, certain wooden cabins, which were put by other people, were removed by Shri Bhargava from Section No. 3. Two or three days prior to Diwali, he was also asked to get his Khokhas removed, which he had taken in the name of his son and had put with the permission and for that he had deposited Rs. 35/- in the company under the receipt. After this he met on 21-11-1974 with Shri Bhargava at his residence and requested him not to remove his cabin. Then Shri Bhargava demanded Rs. 200/- for allowing him to keep his cabin. 3. After this demand, the decoy further alleged that he requested that he was a poor man and he would not be able to pay that much amount. Then Shri Bhargava demanded Rs. 200/- for allowing him to keep his cabin. 3. After this demand, the decoy further alleged that he requested that he was a poor man and he would not be able to pay that much amount. On this, the appellant told that the other cabine had already been removed and in the same way bis cabin would also be removed and if he wanted to keep his cabin not to be removed then he would have to pay Rs. 200/-. 4. The informant further alleged that under pressure he accepted the proposal of the appellant and told him that he would pay Rs. 200/- in two instalments; first instalment of Rs. 100/- would be paid within two or four days, but the informant did not want to pay any bribe and wants to trap the appellant and for this purpose he informed Shri Dr. R. Chowhan, Inspector-CBL, and on this information Shri D.R. Chowhan completed the formalities of pre-trap and made arrangements for the trap. 5. The decoy Badri reached the house of the appellant and paid Rs. 100/- to him. On receiving the signal of Badri, Shri Chowham came to the house of the accused appellant and Occousted him and money was recovered from the pent pocket of the appellant. Thereafter, Shri D.R. Chowhan. Inspector, completed other formalities of washing the hands and pent pocket of the accused appellant and prepared various memos documents. 6. After investigation, a police report was filed under Section 173 Cr.P.C. against the accused appellant before the Special Judge for C.B.I. cases, Jaipur. The learned Special Judge framed charges against the accused appellant who denied the charges and claimed to be tried. The learned Special Judge, after recording the evidence of defence witnesses and hearing the parties, found the accused appellant guilty for the offences as stated in para No. 1 of this judgment, hence this appeal. 7. Heard learned counsel for the parties and perused the entire record. 8. The learned Special Judge, after recording the evidence of defence witnesses and hearing the parties, found the accused appellant guilty for the offences as stated in para No. 1 of this judgment, hence this appeal. 7. Heard learned counsel for the parties and perused the entire record. 8. Learned counsel for the appellant submits that in this case there cannot be any dispute that in a case of Prevention of Corruption Act is the obligatory on the part of the prosecution to prove that any demand was made by the offender and that an amount of illegal gratification has been voluntarily accepted by the offender but in the instant case the prosecution utterly failed to prove demand and acceptance of the bribe to show undue favour to the decoy. He further submits that admittedly the appellant was working as a Senior Surveyor in the Khetari Copper Project and as a Surveyor it was not his duty to remove any encroachment and his function was only to make survey and submit the report to the Corporation (Project). 9. Learned counsel further submitted that in the case under Prevention of Corruption Act the immediate explanation of the offender is very much material. In the present case when the appellant was caught by Shri D.R. Chowhan, Inspector, who asked the appellant as to why be accepted the bribe then at that point of time the accused immediately replied to him that he did not accept any bribe but the amount recovered was paid by Badri saying that an amount of Rs. 200/- is due against him towards his brother from whom he has purchased flour costing Rs. 200/-. So, as per the statement of the appellant, the amount of Rs. 100/- was paid to him in order to deliver the same to his brother Raj Kumar Bhargava. 10. Learned counsel for the appellant further submits that explanation given by the accused appellant, at the time of the trap, found support from the statement of Raj Kumar (DW 3). Damodar Prasad (PW-3) and Munna Lal (PW 4) Learned counsel, therefore, submits that the explanation given by the accused appellant has not only been supported by the defence witnesses but also by the prosecution witnesses. In these circumstances, learned counsel submits that an inference of demand and acceptance of the bribe by the accused appellant cannot be drawn. 11. Damodar Prasad (PW-3) and Munna Lal (PW 4) Learned counsel, therefore, submits that the explanation given by the accused appellant has not only been supported by the defence witnesses but also by the prosecution witnesses. In these circumstances, learned counsel submits that an inference of demand and acceptance of the bribe by the accused appellant cannot be drawn. 11. Learned Public Prosecutor, on the other hand submitted that the learned Special Judge after discussing the entire evidence of the parties has drawn a proper conclusion against the appellant and rightly convicted the appellant on the basis of circumstantial evidence which is available on record The amount of bribe was put on the table by Badri and thereafter the applicant put the same in his pent pocket as is clear from the recovery memo and when the hands of the appellant were washed, the colour of the water changed. This shows that the amount of Rs. 100/-, given by Badri, were accepted by the appellant and the same were taken by him in his hand and thereafter put the same in his pent pocket. 12. It is settled law that the demand of bribe is genesis of the case and if the prosecution fails to prove this ingredient, the accused appellant cannot be convicted on the other circumstances. 13. Now the question arises as to whether the prosecution has successfully proved the demand. In this regard the only evidence which is available on record is of the testimony of the decoy Badri, and his statement has been considered in the light of infirmities pointed out by the learned counsel for the appellant. On this point the decoy has given conflicting evidence. In the F.I.R., he (decoy) admits that the accused appellant has disclosed that cabins of the other person have been removed and his cabin is also to be removed. 14. As said earlier that the accused appellant was working as Senior Surveyor and it was not the duty of the appellant to remove the encroachment made by the persons. In this view of the matter, when the appellant was not under any obligation to remove the cabins then I fail to understand as to why and why the appellant could have asked for the money as bribe. In this view of the matter, when the appellant was not under any obligation to remove the cabins then I fail to understand as to why and why the appellant could have asked for the money as bribe. It is a matter of worth considering that when the cabins/Khokhas of other persons under the similar circumstances had been removed then it was very difficult for the appellant to the allowed the cabin have of the decoy to be kept intact. So, these circumstances are sufficient to show that there was no occasion for the appellant to have made any demand of bribe, as such, the submissions of the learned counsel for the appellant have some force that the decoy adopted the method of implicating the accused falsely in the trap case so that a terror may be created in the mind of the officials of the department and that the staff could not think or take any action for removal of the cabin. 15. In the F.I.R., the decoy stated that the other cabins have been removed and so the cabin of the decoy is also to be removed. While, in the statement he stated that his rent would be deposited when the others will have to deposit the rent. He also stated that he (decoy) will have to pay Rs. 100/- and this fact has not been disclosed by the decoy to any person and the date of payment was fixed on 21-11-1974 but all the details do not find place in the F.I.R. In the cross-examination the decoy stated that the accused did not demand bribe before removal of Khokhas. The fact that the amount would be deposited at the time of deposit by others, does not find place in police statement (Ex. P-1). In the police statement also there is no mention that the decoy had promised to pay Rs. 100/- after words. In the police statement (Ex. P-1) it has also not been mentioned that he (decoy) had gone at the quarter of the accused appellant on his request. 16. In the present case the accused appellant had admitted the acceptance of Rs. 100/- & its recovery from its possession. The question is whether the accused appellant accepted this amount as illegal gratification or other than illegal gratification. 16. In the present case the accused appellant had admitted the acceptance of Rs. 100/- & its recovery from its possession. The question is whether the accused appellant accepted this amount as illegal gratification or other than illegal gratification. The burden is on the prosecution that the accused appellant demand bribe and accepted the same voluntarily to show undue favour of the decoy. Unless this is proved no presumption can be raised against the accused appellant mere recovery of money, does not (illegible) the accused appellant guilty for accepting the bribe. If the acceptance of the bribe with a promise to show undue favour to the decoy is established by the prosecution then only the question of presumption under Sec. 4 of the Prevention of Corruption Act arises. Their Lordships of the Hon'ble Supreme Court in Shantilal S/o Rameshwar v. State of Rajasthan (1975 CAR 431 [SC]) observed that presumption can be drawn in furtherance of the prosecution case and not in derogation. 17. In the present case, so far as payment of bribe is concerned, there is only a single witness i.e. decoy Badri himself. There is no corroboration to his statement. The statement of the decoy is full of contradiction on material particulars from his earlier statement and also from the statement of other witness. Hence the statement of decoy cannot held to be sterling worth. 18. As said earlier, at the time of trap proceedings the accused appellant stated that Shri G.C. Bhargava was looking after the flour mill owned by his brother Shri R.K Bhargava because his brother met will an accident and was hospitalised in S.M.S. Hospital during the period of September 1971 to March, 1972 and during this period decoy Badri asked to take flour from the flour mill for the hotel on credit basis. As such, 100/- were outstanding against Badri, so he accepted Rs. 100/- from Badri. This explanation has been mentioned in the recovery memo Ex. P-3 and the accused appellant has taken the some stand during trial. As such, 100/- were outstanding against Badri, so he accepted Rs. 100/- from Badri. This explanation has been mentioned in the recovery memo Ex. P-3 and the accused appellant has taken the some stand during trial. In the case of their Lordships of the Hon'ble Supreme Court held as under:- "Burden of proof on whom Prosecution of defence-onus on prosecution to prove all ingredients - Defence evidence though palpable false does not discharge onus on prosecution - Where onus shifts to accused and defence evidence probalise his plea, accused entitled to reasonable doubt." Further that in the case where the defence of the accused does not appear to be credible or is palpable false that burden does not become anyway the less. It is only when the burden is discharged then it will be for the accused to explain or to controvert the essential element in the prosecution case, which would negative it. It is not, however, for the accused even at the initial stage to prove something which has to be illuminated by the prosecution to establish all the ingredients of the offence with which he charged and even if the onus shifts upon the accused and the accused has to establish his plea, the standard of proof is not of the same nature as rest upon the prosecution, even if, the onus shifts to the accused and the evidence on his behalf probalise the plea then the offender will be entitled to the benefit of reasonable doubt. 19. Now, it has to be seen that as to whether the explanation given by the accused appellant in this case was probable or not. So far as P.W. 1 Badri concerned, he has stated that the motbir was standing three steps away from the door. The accused at that time was lying down. The decoy wished him, on which the accused sat down and told as to whether he has brought Rs. 100/- or not, as promised by him. On this, the decoy replied that he has brought the money and paid Rs. 100/- to the accused. The decoy further told the accused that the remaining amount shall be given lateron. Thereafter, he gave signal. In cross-examination dated 17-11-1976 the decoy stated that he paid Rs. 100/- to the accused and promise to pay the remaining amount. On this, the decoy replied that he has brought the money and paid Rs. 100/- to the accused. The decoy further told the accused that the remaining amount shall be given lateron. Thereafter, he gave signal. In cross-examination dated 17-11-1976 the decoy stated that he paid Rs. 100/- to the accused and promise to pay the remaining amount. The decoy further stated that regarding the promise to pay the remaining amount of Rs. 100/-. He has also told by him to the police but this fact has not been mentioned in Ex. P-1, and what talks took place between the decoy and the appellant, has no corroboration. PW-3, Damodar, deposed that he was standing near the gate and he heard Badri saying to Bhargave that the balance would be paid later on. From the statement of PW-3. it is thus clear that certain amount was due to be paid by the decoy to the appellant and remaining part of the payment was to be mace and case at the time of trap and certain amount remained to be paid. So, from the statement of P.W. 3, it can safely be inferred that he amount paid was against the amount which had to fallow due against the decoy. It is thus clear that motbir has not corroborated the evidence of the decoy, as such, no inference can be drawn that the decoy had paid Rs. 100/- to the accused because the decoy does not say that at that the accused demanded bribe and he said some thing regarding removal of cabin. The only version of the decoy is on the point that he agreed to pay the balance in the next month as has been corroborated by PW-3 also. This version is not in any way contradictory to the defence taken by the accused because the accused has taken the stand that his brother who owned from the decoy out of that the decoy paid Rs. 100/- at the time of trap and for the remaining amount, the decoy promised to pay the same in the next month. Beside this, there is no other evidence on this point, on the basis of which the prosecution can claim that the accused appellant accepted Rs. 100/- as bribe from the decoy. 20. 100/- at the time of trap and for the remaining amount, the decoy promised to pay the same in the next month. Beside this, there is no other evidence on this point, on the basis of which the prosecution can claim that the accused appellant accepted Rs. 100/- as bribe from the decoy. 20. The other evidence to probalize the defence version is of Phool Chand (PW-21) who, in his cross-examination, admitted that there was a flour mill of the brother of the appellant and he had seen Badri at the flour mill two to four times in every month to get flour to labourers. PW-21. Phool Chand, also deposed that Badri was running a hotel. The other evidence PW-16, Madanlal, the partner of the decoy has categorically stated that:- " eqyfte ds HkkbZ dh pDdh ij cnzh ds vkVk ihlus o xsgwa ysus dk dke iM+rk FkkA og m/kkj ysrk gks rks eq>s D;k irk exj vkVk filrk FkkA HkkxhjFk cnzh dk HkkbZ gS tks cnzh ds lkFk gh dke djrk gSA HkkxhjFk dks Hkh eqyfte dh pDdh ij vkrk tkrk ns[kk FkkA " Other witness PW-4, Munnalal, in his cross-examination has admitted as under:- " jktdqekj HkkxZo eqyfte dk NksVk HkkbZ gSA ftldh pDdh lqHkk"k ekdsZV esa Fkh eSa jkt dqekj dks tkurk gwa og vikfgt gSA nksuksa iSj dVs gq, gSaA cnzh us mldh gksVy ij [kkuk [kkrs le; mlus ukSdj ls ,d nks ckj jktdqekj dh pDdh ls vkVk ykus dks dgk FkkA cnh dh gksVy pDdh dh cSad esa 200 xt nwjh ij FkhA " 21. The decoy himself admitted that he knows the brother of the accused who was running a flour mill. He admits the business transaction with the brother of the accused but he has denied that he was taking the goods on credit but admits that he used to get the grain grinded or used to purchase. It has been further admitted by Badri that Shyam Sunder was working as Munim on the flour mill of the accused. This Shyam Sunder has examined as D.W. 1 and he has been proved his writings in Bahi Ex. P-16 which was seized by the trapping officer at the time of trap. Bahi, Ex. D-6, was produced by the accused later on during investigation. In both the Bahi (Ex. P-16 and Ex. D-6), there is an account of decoy Badri and in Ex. P-16 which was seized by the trapping officer at the time of trap. Bahi, Ex. D-6, was produced by the accused later on during investigation. In both the Bahi (Ex. P-16 and Ex. D-6), there is an account of decoy Badri and in Ex. D-6 certain amount has been shown as outstanding against the name of Badri. 22. In the evidence of the prosecution, itself, it has come that during search several copies were found and out of three one Ex. P-16 was taken, and Ex. D-6 was produced by the accused during the investigation and for that C.B.I. Inspector Shri Sardari Lal (DW-26) has admitted that at the time of submitting Ex. D-6, the accused had told that there was outstanding amount against Badri. So far Ex. P-16 is concerned, PW-23, Dev Raj, has admitted that at page 20 of Ex. P-16 there is an account in the name of Badri and he has been this account at the time of trap. He further admits that he could not read this account but no question was posted to the accused regarding it, and this shows that the police did not seize the Bahi, Ex. D-6, containing the current account of Badri. It may be stated that it is very important in the case that the investigating agency did not come to the finding that Ex D-6 was a false or made up document. The Investigating Agency investigated the matter thoroughly, even after, that the Investigating Officer did not consider Ex. D 6 forge and fictitious document. This shows that C.B.I. was satisfied with the genesis of the contents of the Bahi, Ex. D-6. Moreover, the decoy himself and the other witnesses admitted the business transactions of the Badri with the brother of the accused appellant and have also admitted that the brother of the accused was a displaced person. 23. Shyam Sunder, (DW-1), in his statement, categorically stated that there was business transactions between the decoy and the brother of the accused appellant and certain amount was outstanding against the decoy. His statement find support from the statement of Raj Kumar (DW-2), the brother of the accused and owner of the flour mill, who has also proved Ex P-16 and Ex. D.6. From the evidence of both the witnesses it is clear that an amount of Rs. His statement find support from the statement of Raj Kumar (DW-2), the brother of the accused and owner of the flour mill, who has also proved Ex P-16 and Ex. D.6. From the evidence of both the witnesses it is clear that an amount of Rs. 225/- was outstanding against Badri and due to disability of Raj Kumar, the accused appellant was looking after the business and recovery of outstanding amount of flour mill of Raj Kumar (DW-2). Madan Lal, DW-4, has also corroborated the statement of other defence witnesses. From the above discussion, it is clear that the accused has not only probalized the defence rather he has proved the (illegible) reasonable doubt by oral as well as by documentary evidence and there is no reason to disbelieve the document; Ex. P-16 and Ex. D-6. 24. So far as motives are concerned, the case of the prosecution is that the accused appellant demanded bribe for not removing the cabin of the decoy. In this connection, it will not be out of place to mention here that Badri had moved an application, Ex P-5, in the name of Dhura Ram in the first weak of August, 1971 and vide Ex. P-6 Rs. 35/- were deposited as licence fee in the name of Dhura Ram on 19-8-1971. These two documents do not show about the relationships of Dhura Ram with Badri. It is significant to note that according to Badri, himself, his son Dhura Ram was hardly 7 to 8 years of age in the year 1971 and, therefore, the question of signing the application E. P-5 and depositing the licence fee vide Ex. D-6 by Dhura Ram does not arise. Moreover, the document does not shows as to who deposited the amount. It is very important to note that after the receipt no annual licence fee was deposited and therefore after one year he became unauthorised occupant. There is no document on record to show that after 1971 Badri has filed any application for renewal of the licence. Badri has also admitted that he had been allotted land for the hotel and he was running the same. 25. There is no document on record to show that after 1971 Badri has filed any application for renewal of the licence. Badri has also admitted that he had been allotted land for the hotel and he was running the same. 25. DW-10, Jagdish Singh, employees of the Khetri Copper Project had stated that if an unauthorised cabins were to be removed in the year 1971 then he and accused Bhargava both used to go to remove the same by the order of the Manager. This means that the accused appellant was not the only person authorised to remove the cabins. In the present case the prosecution has not produced the order of the Manager for the removal of the cabin, in dispute, whatever documents having produced they are with regards to the power of the removal of encroachment on the companies land but no document has been produced to show that the accused was authorised to remove the unauthorised cabins put by different persons. Jagdish Singh, PW-10, in his statement, also admitted that Mr. D.Kumar, Manager, L & T. had ordered to remove unauthorised cabins but it is strange that the prosecution has not produced Mr. D. Kumar to prove it so the none production of the Manager is not fatal only to the prosecution but makes the case of the prosecution totally false. 26. The other witness, who could have unfolded the story as to what powers were given to the accused was Mr. Vasudev, but the prosecution also failed to produce this witness, even though, his statement was recorded during the investigation. PW-16, Madan Lal, the partner of the decoy, has stated that after Sumer Singh the accused Bhargava had not done any act for the removal of cabins. Mr. Sumer Singh. PW-22, is also a material witness who stated that his services were terminated on Oct., 1974 and after that who was looking after the work of removal of unauthorised cabins. Mr. T.N. Tiwari, who had allocated the work, had also not been examined and his non-production also effected badly to the case of the prosecution. According to PW-12, the charge of Mr T.N. Tiwari was given to the accused but as per Ex. P-26, handing over and taking over the charge, no document has been filed and no list of unauthorised cabins has also been produced by the prosecution. According to PW-12, the charge of Mr T.N. Tiwari was given to the accused but as per Ex. P-26, handing over and taking over the charge, no document has been filed and no list of unauthorised cabins has also been produced by the prosecution. In the Non-production of these documents, it can be therefore, be inferred that accused appellant was not the concerning person for the removal of cabins. PW-4, Munna Lal, has stated that he had not seen the accused working for the removal of the cabins. 27. After going through the entire record and the evidence produced by the prosecution it can be observed that the evidence of the prosecution is contradictory and very shakey which cannot be believed. 28. In view of the foregoing discussion it can safely be said that in the instant case the most important ingredient of the offence i.e payment and acceptance of the bribe has not been proved beyond reasonable doubt and benefit of which goes to the accused appellant. 29. Consequently, this appeal is, therefore, allowed and the accused appellant is acquitted of all the charges levelled against him. The accused appellant is on bail and his bail bonds stand cancelled. He need not surrender.Appeal allowed. *******