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2013 DIGILAW 1459 (RAJ)

Banarsi Das v. State of Rajasthan

2013-08-23

SANDEEP MEHTA

body2013
JUDGMENT 1. - The instant appeal has been preferred by the appellant Banarsidas being aggrieved of the judgment dated 27.5.1989 passed by the learned Special Judge, Anti Corruption Cases, Bikaner in Case No. 7/1984 whereby he was convicted under Section 161 I.P.C. and Section 5(1)(d) r/w 5(2) of the Prevention of Corruption Act and sentenced as below: Under Section 161 I.P.C. One year R.I. with a fine of Rs. 500/- and in default of payment of fine to undergo three months R.I. Under Section 5(1)(d) read with Section 5(2) of Prevention of Corruption Act 2 Years R.I. with a fine of Rs. 500/- and in default of payment of fine to further undergo three months' R.I. All the sentences were ordered to run concurrently. 2. Succinctly stated the facts of the case are that the complainant Mani Ram submitted a report Ex.P-1 before the Dy. S.P., Anti Corruption Bureau, Hanumangarh on 25.2.1984. The complainant alleged in the report that he was the Sangaria representative of Saptahik Asli Rajasthan newspaper published from Sadulsahar. A special edition of he newspaper was to be published for the Independence Day i.e. 15.8.1983. The Municipality, Sangaria placed an order for publication of a full page decorative advertisement in the said edition of the newspaper through the complainant. On the order of Municipality, Sangaria, the advertisement was published in the 15th August edition of the newspaper. As per the rates fixed by the Public Relations Directorate, Government of Rajasthan, Jaipur the total bill for printing the advertisement came to be Rs. 504.90. 3. As per the complainant, a bill for the said amount was submitted by him in the Municipality, Sangaria on 17.8.1983 or 18.8.1983. He alleged that despite six months having lapsed, Banarsi Das, the Executive Officer Municipality Sangaria was sitting over the bill. The complainant allegedly met the accused 2-3 days before 25.2.1984. The accused demanded a sum of Rs. 200/- from the complainant as bribe for passing the bill. As per the complainant, he was not desirous of giving bribe and wanted to have the accused trapped red handed. The complainant submitted a carbon copy of the Bill No. 104 dated 16.8.1983 along with the report. Shri Harish Chandra, Dy. S.P. Anti Corruption, Hanumangarh received the report Ex.P-1 and summoned Manoharlal T.R.A. and Mr. Kewal Krishan, Girdawar to remain present as shadow witnesses. The complainant submitted a carbon copy of the Bill No. 104 dated 16.8.1983 along with the report. Shri Harish Chandra, Dy. S.P. Anti Corruption, Hanumangarh received the report Ex.P-1 and summoned Manoharlal T.R.A. and Mr. Kewal Krishan, Girdawar to remain present as shadow witnesses. The report was read out to the complainant in the presence of both the witnesses. The trap proceedings were rehearsed in presence of the witnesses. Thereafter the complainant submitted currency notes worth Rs. 200/- to the Dy. S.P. The notes were tainted with phenolphthalein and were placed in Mani Ram's pocket. He was instructed to pass on the tainted currency notes to Banarsi Das on his demand. The complainant was further instructed to give a signal by brushing his hand on his head after passing on the bribe. He was also instructed that as far as possible the bribe be paid to the accused by calling him to his shop. The shadow witness Kewal Krishan was instructed to try and overhear the talks and to see the passing on the bribe. The trap party thereafter proceeded from the office at 11.45 A.M. Mani Ram was instructed to contact the accused and to decide the place and time of acceptance of bribe. The constable Mahavir Singh accompanied Mani Ram. He returned and informed that the accused was about to reach the complainant's watch repair shop for receiving the bribe. The Dy. S.P. along with the shadow witnesses and the other members of the trap party took up their respective positions at and around Kewal Ram's hotel and various places in the main market. At about 1.20 P.M. a person came to the shop of Mani Ram and occupied a chair. At that moment, Mani Ram was not present in the shop. At 1.25 P.M. Mani Ram came to the shop and struck a conversation with him. At 1.30 P.M., Mani Ram passed on some currency notes to the aforesaid person. He took the notes in his right hand, counted them, and then placed them in his shirt pocket. Mani Ram gave the pre-arranged signal on which the Dy. S.P. and the other witnesses reached Mani Ram's shop. The Dy. S.P. introduced himself to the accused. The accused on enquiry informed that he was Banarsi Das, Executive Officer, Municipality, Sangaria. On being asked about the amount of Rs. Mani Ram gave the pre-arranged signal on which the Dy. S.P. and the other witnesses reached Mani Ram's shop. The Dy. S.P. introduced himself to the accused. The accused on enquiry informed that he was Banarsi Das, Executive Officer, Municipality, Sangaria. On being asked about the amount of Rs. 200/- the accused replied that he had received the amount towards repayment of the loan of Rs. 200/- which he had given to Mani Ram on 23.2.1984. He however agreed that no written document was prepared while advancing the loan. On washing the hands of the accused in a solution of Sodium Carbonate, it turned pink. The wash was packed and sealed in glass bottles. Thereafter Banarsi Das was asked to present the amount of Rs. 200/- which he had received from Mani Ram. He took out the notes from his shirt pocket and handed them over to the Dy. S.P. The numbers of the notes tallied with those which were presented by the complainant to the Dy. S.P. The pocket of the shirt worn by the accused was also washed in Sodium Carbonate solution. The wash thereof also turned pink and was also sealed in glass bottles. The accused was arrested. A seizure memo was prepared and the report of the proceedings was forwarded to the headquarters where F.I.R. No. 11/1984 was registered and investigation commenced. 4. On conclusion of investigation, the Investigating Agency filed a charge-sheet against the accused for the offences under Section 161 I.P.C. and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act in the Court of learned Special Judge, Anti Corruption Case, Bikaner. 5. The learned Special Judge framed charges against the accused for the aforesaid offences. The accused denied the charges and claimed trial. The prosecution examined 10 witnesses in support of its case. The accused denied the prosecution case in his statement under Section 313 Cr.P.C. He filed a written explanation under Section 313 Cr.P.C. and submitted therein that the Municipality Chairman Shri Banshilal was inimical to him because he exposed the departmental irregularities committed by the Chairman and his stooges. He submitted that the advertisement claimed to have been printed in the newspaper as well as the bill submitted by the complainant were forged and fabricated. He further submitted that on 23.2.1984, Mani Ram asked him for a loan of Rs. He submitted that the advertisement claimed to have been printed in the newspaper as well as the bill submitted by the complainant were forged and fabricated. He further submitted that on 23.2.1984, Mani Ram asked him for a loan of Rs. 200/- on the pretext of his wife's and sister's ailments. He arranged for the loan through the firm M/s. Mukundlal Mahendrapal Sangria. The said amount was returned back by Mani Ram on the date of trap. He submitted that the procurement of loan and repayment thereof was a part and parcel of the conspiracy hatched between the complainant and the Municipality Chairman to implicate the appellant in a false case of bribe for taking revenge from the appellant. It was also mentioned that he had submitted a complaint in the Anti Corruption Bureau against Ramavtar a corrupt employee close to the Chairman Banshilal. 6. Five witnesses were examined in defence. In order to substantiate the defence theory regarding the enmity between the Chairman and the accused and for proving the fact that the amount of Rs. 200/- was loaned by the accused to the complainant. The learned trial Judge, however, discarded the defence theory and proceeded to hold the appellant guilty by the impugned judgment and sentenced him as above. Hence, this appeal. 7. Mr. Kapil Purohit, learned counsel for the appellant vehemently contended that the appellant was falsely implicated in the case. He urged that the appellant gave a thorough and foolproof explanation for the amount recovered from him. He submitted that the whole trap proceedings were the culmination of the conspiracy hatched between the complainant Mani Ram and Municipality Chairman Banshi Ram. Learned counsel submitted that the Chairman was inimical to the appellant because he filed a complaint in the Anti Corruption Bureau for the fraud and irregularities committed by the Chairman and his aides in the Municipality. He submitted that the accused filed a numerous complaints in the Anti Corruption Bureau for the financial irregularities and fraud committed by the Chairman. Enraged by the complainants and in order to wreak vengeance, the Chairman conspired with Mani Ram and got the accused trapped in a false and manipulate case of bribe. He further urged that the conspiracy is apparent from the fact that the order placed for publication of the advertisement, the printing thereof and the bill were all fabricated. Enraged by the complainants and in order to wreak vengeance, the Chairman conspired with Mani Ram and got the accused trapped in a false and manipulate case of bribe. He further urged that the conspiracy is apparent from the fact that the order placed for publication of the advertisement, the printing thereof and the bill were all fabricated. He contended that the whole sequence of events whereby the appellant was induced to accept the amount of Rs. 200/- was a part of the conspiracy for having him falsely trapped and nothing beyond that. He contended that total bill which the complainant submitted to the Municipality was for a sum of Rs. 504.90 paise only. Out of the said amount also the complainant's shares was only 40% i.e. Rs. 201/- only as stated by Subhash Chandra the newspaper's owner. He argued that it is absolutely impossible to believe that any person would agree to pay a bribe of Rs. 200/- for receiving a sum of Rs. 201/- only. He urged that the newspaper's owner viz. PW-9 Subhash Chandra admitted that the bill which was submitted on behalf of the newspaper had to be paid through an account payee cheque drawn in the newspaper's name. He further submitted that the bill submitted by the complainant Mani Ram was a fabricated document because no corresponding bill book was produced by him during investigation. The bill was also not signed by the owner of the newspaper. Learned counsel further submitted that the spontaneous defence taken by the appellant at the time of recovery was verified by the I.O. Harish Chandra Dy. S.P. who admitted that the accused disclosed that he had facilitated a loan of Rs. 200/- for Mani Ram through the firm M/s. Mukundlal Mahendrapal. He contended that the Dy. S.P. admitted that he examined the firm's records and found an entry corresponding with the defence theory in its accounts book. He submitted that the firms partner and accountant were also examined during investigation and they too stated that Mani Ram was provided a sum of Rs. 200/- as loan at the instance of the appellant. 8. S.P. admitted that he examined the firm's records and found an entry corresponding with the defence theory in its accounts book. He submitted that the firms partner and accountant were also examined during investigation and they too stated that Mani Ram was provided a sum of Rs. 200/- as loan at the instance of the appellant. 8. Learned counsel placed reliance on a decision rendered by the Hon'ble Apex Court in the case of Bal Krishan Sayal v. State of Punjab reported in (1987) 2 SCC 647 and submitted that in the said case, the prosecution's allegation was that for the waiver of a total penalty of Rs. 102/-, the complainant agreed to pay Rs. 100/- as bribe. Learned counsel submitted that the Hon'ble Apex Court considered the issue and held that the payment of brief of Rs. 100/- for waiver of penalty amount of Rs. 102/- was thoroughly unbelievable. He submitted that in the present case also the total amount which the complainant was entitled to receive against the bill was only Rs. 201/- and for receiving the said amount he allegedly agreed to pay a bribe of Rs. 200/- which is absolutely unbelievable. He further urged that the newspaper owner Subhash Chandra admitted that he did not authorise the complainant to pass on any commission etc. to the officers of the Municipality. Thus, he submitted that the complainant's case regarding having taken the decision to pay the significant amount bribe to the accused against the petty bill and that too without consent of the newspaper owner is beyond belief. He further submitted that the prosecution did not lead any evidence, for verifying the bald allegation made by the complainant about the demand of bribe. He submitted that the Trap Laying Officer did not take any steps for verification of the alleged demand of bribe by the accused. He further urged that no witness deposed having overheard the conversation which took place between the accused and the complainant at the time of passing on of the bribe amount. Thus, he submitted that the complainant's allegation regarding the accused having demanded and accepted the amount of Rs. 200/- as bribe remains uncorroborated and as such the accused is entitled to be acquitted. 9. Learned Public Prosecutor, on the other hand, opposed the arguments advanced by the learned counsel for the appellant. Thus, he submitted that the complainant's allegation regarding the accused having demanded and accepted the amount of Rs. 200/- as bribe remains uncorroborated and as such the accused is entitled to be acquitted. 9. Learned Public Prosecutor, on the other hand, opposed the arguments advanced by the learned counsel for the appellant. He urged that the accused admitted having received the amount and as such the burden of proof shifted on him to explain as to how he came into possession of the tainted currency notes. He urged that the accused appellant failed to discharge the burden reasonably and thus, the trial Court rightly convicted and sentenced him by the impugned judgment. He thus prayed that the judgment impugned having been passed on a just and proper appreciation of evidence calls for no interference whatsoever in this appeal. 10. Heard and considered the arguments advanced by the learned counsel for the appellant and the learned Public Prosecutor and perused the impugned judgment and the record. 11. As the accused has admitted that he received the amount of Rs. 200/- from the complainant, the limited consideration which this Court is left to make is as to whether the accused demanded the amount from the complainant as bribe and whether he gave a satisfactory explanation for the amount received by him, 12. The initial burden of proof was on the prosecution to prove that the accused demanded the amount of Rs. 200/- as bribe from the complainant. PW-10 Harish Chandra Singh, Trap Lying Officer stated that as soon as the complainant came with the report, he formed a trap party and initiated the trap proceedings. Thus admittedly no attempt was made by the Trap Laying Officer to verify the complainant's allegation regarding the accused having demanded bribe from him. Thus, the allegation regarding the accused having demanded an amount of Rs. 200/- as bribe is solely based on the testimony of the complainant and none else. 13. In view of the fact that the appellant has specifically pleaded that the Chairman of the Municipality was bearing an ill-will against him and conspired to foist a false case of bribe against him, the verification of the demand of bribe allegedly made by the accused was absolutely essential before fastening guilt on him. 14. Now, coming to the contention regarding the order of printing the advertisement and the bill being fabricated. 14. Now, coming to the contention regarding the order of printing the advertisement and the bill being fabricated. The complainant claims to have submitted the bill on 16/17.8.1983. Strangely and despite the bill not being passed for nearly six months, he made no complaint in this regard to any quarter. The order for printing of the advertisement was allegedly issued to the complainant by the Chairman in his individual capacity without following the norms. This proves that the complainant and the Chairman were on very good terms. Thus, the complainant had ample reason as well as opportunity to approach the Chairman with the complaint regarding the bill not being passed for such a long period of time. The fact that the complainant chose to keep silent for such a long period of time after submitting the bill throws a great deal of doubt on his motives. The direction to print the advertisement was given by Banshi Ram, the Chairman vide the letter Ex.P-7. The letter does not bear any dispatch entry of the Municipality, Sangria. Bansi Ram the Chairman was examined as PW-8 at the trial. In his cross-examination he admitted that no specific subject matter of the advertisement to be printed was provided to the newspaper. The letter Ex.P-7 mentions that the Chairman issued a direction to print one whole page advertisement for 15th August. The bill Ex.P-8 which was raised for printing the advertisement was for Rs. 504.90 paise. Banshi Ram admitted in his cross-examination that the Municipality Chairman was individually authorised to sanction an advertisement only upto Rs. 250/- and if the amount exceeded Rs. 250/-, then sanction was to be sought from the Board. He admitted that no permission of the Board was taken before placing the order for printing of the advertisement in question. The witness admitted that he had gone to Jaipur and thus, he signed and gave the order of printing the advertisement of Mani Ram at Jaipur on 13.8.1983. Before proceeding to Jaipur, he instructed Ramavtar that if Mani Ram Soni approaches, then he should be asked to print the advertisement and that he would sign the order at Jaipur. Mani Ram thereafter came to Jaipur and then he signed the order and gave it to him. 15. PW-1 Mani Ram, the complainant stated that he submitted an application seeking permission to print the advertisement in the News Paper. Mani Ram thereafter came to Jaipur and then he signed the order and gave it to him. 15. PW-1 Mani Ram, the complainant stated that he submitted an application seeking permission to print the advertisement in the News Paper. He admitted that he gave the application on 13.8.1983 and on the very same day, he received the order from the Chairman. (It is relevant to mention here that no such application was placed on record during the course of investigation or at the trial). Mani Ram also admitted that the special edition of the newspaper was to be printed for 15th August. Accordingly, he received the order and proceeded to Sardulsahar where he got the advertisement printed in the newspaper in the late hours of 13.8.1983. Thus, the witness Mani Ram totally contradicted Banshi Ram's version that the order Ex.P-7 was signed at Jaipur. 16. PW-4 Ramavtar, the clerk posted at Municipality, Sangaria deposed that he drafted the order Ex.P-7. In cross examination the witness was specifically asked about the date on which, the order Ex.P-7 was drafted to which he feigned ignorance. He admitted that the Chairman had proceeded to Jaipur between 8.8.1983 to 10.8.1983. He sent the letter Ex.P-7 for signatures of the Chairman about 1-2 days thereafter. He further admitted that Ex.P-7 was received back by him with the bill Ex.P-8. He found the documents Ex.P-7 and P-8 and Ex.P-9 lying on his table. He was given a specific suggestion that the letter Ex.P-7 was fabricated by him a couple of days before the trap proceedings at the instructions of the Chairman Banshiram. He admitted that Mani Ram never submitted bill Ex.P-8 to him. lie admitted that the date 22.8.1983 written on the bill Ex.P-8 was the date on which he found the bill lying on the table. He admitted that he forwarded the bill to the Accountant without making any dispatch entry. He further admitted that the documents Ex.P-7, P-8 and P-9 were not entered in any record of the Municipality. Significant is the fact that the witness himself stated in the examination in chief that the appellant Banarsi Das had been relieved of his charge from Municipality, Sangaria on 5.5.1983 and he rejoined duty on 3.9.1983. He further admitted that the documents Ex.P-7, P-8 and P-9 were not entered in any record of the Municipality. Significant is the fact that the witness himself stated in the examination in chief that the appellant Banarsi Das had been relieved of his charge from Municipality, Sangaria on 5.5.1983 and he rejoined duty on 3.9.1983. He further admitted in his cross-examination that even after the accused rejoined duty, the Chairman issued an order Ex.P-10 whereby the appellant was prohibited from signing any cheque except towards the water and electricity bills. In reply to the question regarding the authority to make payment of the bill Ex.P-8, the witness admitted that the bill Ex.P-8 was to be paid by the accountant. 17. The Accountant Gangajal was examined as PW-5. He stated in his examination in chief that the bill Ex.P-8 was not entered anywhere in the Municipality's record. He could not state the date on which he received the bill. He further stated that one month after receiving the bill he forwarded the same to the Executive Officer Banarsi Das i.e. the appellant herein. In his examination in chief itself the witness stated that no note sheet was prepared for the bill Ex.P-8 despite the fact that as per the prevalent practice, preparation of a note sheet was essential for processing the bill. The witness was confronted by the learned Public Prosecutor with his previous statement and stated that no receipt was marked on the bill, and therefore, he could not state the date on which he received it. In cross-examination the witness admitted that the bill Ex.P-8 bore no noting for being forwarded to him. He admitted that though required under the rules, the bill Ex.P-8 was not entered in receipt and dispatch register maintained in the Municipality. He further admitted that the letter/order Ex.P-7 bore no endorsement of the office. The witness also admitted that the Chairman, Municipality Withheld the payment of salary and T.A. Bills of the accused. 18. PW-8 Banshi Ram was the Chairman Municipality at the relevant time. He admitted the fact that Ramavtar was suspended by the appellant and despite the suspension order he was not relieved from the Municipality. He admitted that he put a sanction on the appellant's signing powers regarding payment of the bills other than of electricity, telephone and water charges. 18. PW-8 Banshi Ram was the Chairman Municipality at the relevant time. He admitted the fact that Ramavtar was suspended by the appellant and despite the suspension order he was not relieved from the Municipality. He admitted that he put a sanction on the appellant's signing powers regarding payment of the bills other than of electricity, telephone and water charges. He further admitted that the Director, Local Bodies directed reinstatement of the appellant. He challenged the reinstatement by filing a writ petition before the High Court. 19. From a bare perusal of the application Ex.P-7, it is apparent that the same is a forged document which was ante dated with the sole objective to falsely implicate the appellant. Despite the fact that the bill for the advertisement was nearly twice the financial powers of the Chairman, he allegedly sanctioned the printing order to the newspaper Asli Rajasthan. The very existence of the order is doubtful. It was not entered in any Municipal record. It bears the date 13.8.1983 below the signatures of Banshi Ram. Banshi Ram who was admittedly at Jaipur on that date, offered an explanation that Mani Ram came to Jaipur and got the letter signed there. Mani Ram, on the other hand, did not support him in this regard. Ramavtar also failed to corroborate this version of the Chairman. 20. Mani Ram alleged that he kept on pursuing the bill Ex.P-8 with the Head Clerk and Accountant. None of these two witnesses stated that Mani Ram ever met them for the payment of his bill. The application which Mani Ram gave for being granted the printing order is not available on record. He admitted in his cross-examination that application was given by him to the Chairman on 13.8.1983. Apparently this theory is totally false because the Chairman was admittedly at Jaipur on that day. The bill Ex.P-8 bears no entry in the record of the Municipality. The complainant claims to have submitted the bill Ex.P-8 on 16.8.1983 itself. The bill bears the endorsement dated 22.8.1983 whereby, the clerk Ramavtar marked it to the accountant. Admittedly the appellant was under suspension during that period and there was no difficulty for the officers of the Municipality to have passed the bill at that point of time. The complainant claims to have submitted the bill Ex.P-8 on 16.8.1983 itself. The bill bears the endorsement dated 22.8.1983 whereby, the clerk Ramavtar marked it to the accountant. Admittedly the appellant was under suspension during that period and there was no difficulty for the officers of the Municipality to have passed the bill at that point of time. It is evident that the order Ex.P-7, the bill Ex.P-8 and the newspaper Ex.P-9 were not in existence at that point of time and were fabricated subsequently just in order to have the appellant trapped in a false case of bribe because of his inimical relations with the Chairman. The whole case was as a matter of fact stage managed for oblique motives. It is absolutely impossible to believe that for a meager payment of Rs. 504/- of which also the complainant was only to receive Rs. 201/- (40% as stated by Subhash Chandra PW-9), he would agree to pay bribe of Rs. 200/- to the appellant. The appellant gave an explanation right at the time of the trap that he had procured the loan of T 200/- for the complainant who pleaded dire need for providing treatment to his ailing wife and sister. The appellant promptly revealed the name of the firm through which the loan was provided to the complainant. The Investigating Officer verified the fact by investigating the firm's records and also its proprietor and accountant. The fact that the accused procured the loan of Rs. 200/- and provided it to the complainant was proved beyond doubt by the defence witnesses DVV-1 Vinod Kumar Sharma, DW-2 Kaluram and DVV-3 Mukund Lal the partner of the firm through which the loan was provided to the complainant. DW-4 Amarnath was a clerk in the Municipality who proved the inimical relations between the Chairman and the appellant. The inimical relations are otherwise also writ large on the face of the record and substantiated by the admissions made by the Chairman Banshi Ram in his cross-examination. The defence exhibited the documents Ex.D-8, 9 and 10, which also firmly establish that the relations between the Chairman Banshi Ram and the appellant were strained to air extreme. 21. The inimical relations are otherwise also writ large on the face of the record and substantiated by the admissions made by the Chairman Banshi Ram in his cross-examination. The defence exhibited the documents Ex.D-8, 9 and 10, which also firmly establish that the relations between the Chairman Banshi Ram and the appellant were strained to air extreme. 21. The Hon'ble Apex Court considered the effect of the non-verification of the allegation of demand of bribe by the accused in the case of Subhash Parbat Sonvane v. State of Gujarat reported in AIR 2003 SC 2169 and held that unless there is cogent evidence on the record to substantiate the allegation of demand of bribe, mere recovery of the amount cannot be conclusive to hold the accused guilty. 22. The Hon'ble Apex Court again considered the issue in the case of Mukut Bihari v. State of Rajasthan reported in AIR 2012 SC 2270 and held as under: "The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless mere is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act, 1988. While invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence 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 person." 23. In Punjab Rao v. State of Maharashtra reported in AIR 2002 SC 486 , Hon'ble Apex Court while considering the identical issue held as under: "We have examined the judgment of the learned Special Judge as well as that of the High Court. It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability." 24. The Hon'ble Apex Court considered a similar scenario in the case of Bal Krishan Sayal's (supra) wherein the allegation was that for waiver of penalty of Rs. 102/- a bribe of Rs. 100/- was passed on. The Apex Court held that it is unbelievable that for a demand of Rs. 102/- a bribe of Rs. 100/- would be paid. 25. It is admitted that no verification of the alleged demand of bribe was conducted Traplaying Officer before initiating trap proceedings. 26. No witness apart from the complainant whose conduct is in serious doubt claims to have heard the talks which transpired between the appellant and the complainant at the time of passing of the amount. The theory propounded by the complainant that the appellant made him to run form pillar to post for the payment of his bill is apparently false for the reason that when the bill is claimed to have been submitted by the complainant i.e. 16.8.1983, the appellant was not holding the post of Executive Officer as he was suspended. The bill was allegedly submitted to Ramavtar who denied that the bill was ever submitted before him. The bill was allegedly submitted to Ramavtar who denied that the bill was ever submitted before him. Ramavtar claims that he found the bill lying on his table and that he marked the same and forwarded it to the Accountant on 22.8.1983. The bill was to be cleared by the accountant himself and thus there was no hurdle for the payment of the bill to the complainant. There is no endorsement on the bill as to when the same reached the appellant. The financial powers of the appellant had been ceased by the Chairman and therefore, there was no occasion for the appellant to have participated in the passing of the bail. Admittedly, the relations between the accused and the Chairman Banshi Ram were strained to an extreme extent. There is evidence to the effect that the appellant despite being the Executive Officer was locked out of the Municipality at the instance of the Chairman. 27. From an evaluation of above evidence, it becomes apparent that the whole case was fabricated by the Chairman, Municipality in conspiracy with the clerk Ramavtar and the complainant in order to frame the accused in the false and manipulated case of bribery. 28. In wake of the aforesaid discussion, this Court is of the opinion that the prosecution has hopelessly and miserably failed to prove its case against the appellant. It is apparent and writ large on the face of the record that a false trap was laid in this case against the appellant. Thus, the conviction of the appellant as recorded by the learned trial Judge deserves to be set aside. The appellant deserves to be honourably acquitted of all the charges. 29. Accordingly, the appeal is allowed. The convictions as recorded by the learned Special Judge, Anti Corruption Cases, Bikaner are set aside. The appellant is acquitted of the charges. He is on bail. He need not surrender. His bail bonds are discharged.Appeal allowed. *******