JUDGMENT 1. - The instant appeal has been filed by the appellant Jeeya Ram against the judgment dated 2.11.1998 passed by the learned Special Judge cum Sessions Judge, Prevention of Corruption Act Cases, Jodhpur in Original Case No. 24/1997, whereby he was convicted and sentenced as below: Sections 13(l)(c) & 13(2) of the Prevention of Corruption Act One year's R.1. and a fine of Rs. 500/- in default, 3 months' imprisonment. Section 3/8 of the Rajasthan State Road Transport Service (Prevention of Ticketles Travel) Act, 1975 One Month's imprisonment and a fine of Rs. 200/- in default, 15 days' s imprisonment. Both the sentences were ordered to run concurrently. 2. Briefly stated the facts of the case are that the appellant herein was posted as a Conductor in the Rajasthan State Roadways Transport Corporation at the relevant time. As per the prosecution story, the petitioner was deputed on duty in the roadways bus No. RSB-4129. On that day, the Dy. S.P. S.N. Khinchi of (the Anti Corruption Bureau allegedly received a complaint that the passengers travelling in the roadways buses plying on the routes originating from the Nagaur Bus Stand were not being given tickets from the ticket window. The Dy.S.P. allegedly placed his informers at the Bus Stand and instructed them to report to him in the event of any bus starting from the bus stand without issuance of tickets to the passengers from the ticket booking window. It is alleged that on 28.11.1987 the informer gave an information to the Dy.S.P. that the passengers, who had boarded the bus No. RSB-4129 had not been issued tickets from the ticket booking window. The Dy.S.P. in turn contacted the Addl. S.P. Nagaur. Four uniformed Police men were summoned. The Dy.S.P. instructed his driver to summon two Government witnesses. A little later, the driver returned with four Police men in uniform and an L.D.C. and a U.D.C. from the Public Health and Engineering Department. The Dy.S.P. thereafter followed the bus No. RSB-4129. Some passengers got down from the bus at the Balada Bus Stand. On checking and inquiring from them, it was revealed that the passengers had not been issued any tickets. They also informed that the booking clerk told them that the tickets would be provided inside the bus. The Dy.S.P. thereafter followed the bus No. RSB-4129. Some passengers got down from the bus at the Balada Bus Stand. On checking and inquiring from them, it was revealed that the passengers had not been issued any tickets. They also informed that the booking clerk told them that the tickets would be provided inside the bus. They also complained that the conductor had taken the money from them but did not issue tickets to them despite taking the fare from them. The disclosures made by the passengers confirmed and verified the truth of the information. The Dy.S.P. and the other witnesses pursued the roadways bus. The bus was overtaken and stopped before the Rol village. The Dy.S.P. introduced him self to the conductor, who disclosed his identity to be Jeeya Ram, the appellant herein. The Dy.S.P. expressed the desire to check the bus disclosing him about the secret information that most of the passengers in the bus were ticketless. It is also alleged that most of the passengers on enquiry told that they had paid the money to the conductor Jeeya Ram and that the conductor had not issued the tickets despite their request. They also informed that the booking clerk told them that the tickets would be provided inside the bus. It was estimated that 26 passengers had paid the fare but tickets were not issued to them. A checking memo was prepared. On enquiry as to why the passengers had not been issued the tickets, the conductor Jeeya Ram could not give any satisfactory explanation and tried to take the Dy.S.P. aside for making some private conversation ostensibly to influence him to refrain from taking any action. 3. An amount of Rs. 2630.40 Paisa was recovered on the personal search of Jeeya Ram. Inspection memo (Ex.P-9) was prepared. The amount recovered from personal search of Jeeya Ram was seized. The following articles were seized:- (i) log book (ii) way bills (Ex.P-20 & Ex.20A) (iii) daily sale account of the bus (Ex.P-28) (iv) ticket book (Article-1) 4. Thereafter, the Dy.S.P. proceeded to the booking office and enquired from the Depot Manager about the identity of the booking clerk. The Depot Manager informed that the booking clerk working on the counter, at the relevant time, was Vijay Kumar. 5. Thereafter, the Dy.S.P. proceeded to the booking office and enquired from the Depot Manager about the identity of the booking clerk. The Depot Manager informed that the booking clerk working on the counter, at the relevant time, was Vijay Kumar. 5. On the basis of the preliminary material collected, a formal report was prepared by the Dy.S.P. and was forwarded to the Headquarter, Anti Corruption Bureau, Jaipur where, F.I.R. No. 31/1988 was registered. 6. Subsequently, on account of the transfer of the Dy.S.P. S.N. Khinchi PW-39, the investigation was continued by Bhanwar Singh PW-35 the Inspector. Sanction to prosecute the appellant was accorded by the Divisional Manager Tahir Ali Jedi PW-33 and ultimately a charge-sheet was filed against the appellant and Vijay Kumar the booking clerk for the aforesaid offences. 7. The trial Judge framed charges against the accused for the offences under Sections 13(l)(c) & 13(2) of the Prevention of Corruption Act and Section 3/8 of the Rajasthan State Road Transport Service (Prevention of Ticketless Travel) Act, 1975. The accused pleaded not guilty and claimed trial. The prosecution examined a total of 39 witnesses in support of its case. The accused in their statements under Sections 313 Cr.P.C. denied the prosecution case but did not lead any evidence in defence. The learned trial Judge at the conclusion of the trial acquitted the booking clerk Vijay Kumar but convicted and sentenced the appellant as above. Hence, this appeal. 8. Shri Manish Shishodia and Shri Sunil Ranwah learned counsel appearing for the appellant vehemently contended that the appellant had been falsely implicated in this case. It was submitted that most of the passengers travelling in the bus at the relevant time, did not support the prosecution story at the trial. It was further submitted that only two witnesses i.e. Sofia Begum PW-1 and Hulaschand PW-31 out of the 26 passengers allegedly travelling in the bus supported the prosecution theory regarding the appellant not issuing the tickets despite taking money. Learned counsel submitted that the very fact that 24 out of 26 passengers did not support the prosecution story is sufficient to discard the whole prosecution case. They further submitted that there is no mandatory requirement as per the Rajasthan State Road Transport Service (Prevention of Ticketless Travel) Act, 1975 to maintain the way bill and thus, as per them, the lack of entries in the way bill would loose significance. They further submitted that there is no mandatory requirement as per the Rajasthan State Road Transport Service (Prevention of Ticketless Travel) Act, 1975 to maintain the way bill and thus, as per them, the lack of entries in the way bill would loose significance. Thus learned counsel submitted that the appellant's conviction for the offence under the Prevention of Corruption Act is absolutely unwarranted. In the alternative, it was submitted that at best, the highest case which the prosecution could remotely prove against the appellant would be under the Rajasthan State Road Transport Service (Prevention of Ticketless Travel) Act, 1975. It was argued that the learned trial Judge at the conclusion of the trial, directed the recovered amount of Rs. 2630.40 Paisa to be returned back to the appellant by accepting the explanation offered for the same and thus, his conviction for the offence under Sections 13(l)(c) and 13(2) of the Prevention of Corruption Act and the RSRTS (PTT) Act is prima facie illegal. Referring to para No. 23 of the judgment it was submitted that the learned trial Judge himself found that the prosecution failed to prove that the amount of Rs. 2630.40 Paisa recovered from the appellant was the amount of fare received by the appellant and that the amount could not be linked with the offence. It was urged that prima facie, the ingredients of the offences under the Prevention of Corruption Act are not made out against the appellant. They thus, urged that the appellant's conviction in this case is totally illegal and deserves to be set aside. They, therefore, urged that the appeal filed by the appellant deserves to be accepted. 9. Learned Public Prosecutor on the other hand, vehemently opposed the arguments advanced by the learned counsel for the appellant. He submitted that as per the inspection memo Ex.P-9, which bears the signatures of the appellant and the motbirs, 26 passengers were found without ticket when the inspection was conducted. He further submitted that two passengers namely Sofia Begum PW-1 and Hulaschand PW-31 deposed emphatically against the appellant and stated that the appellant took money from them and thereafter did not provide them the tickets. He thus submitted that the prosecution was able to prove its case against the appellant beyond all manner of doubt and thus, no interference is called for in the appellant's conviction as recorded by the learned trial Judge. 10. He thus submitted that the prosecution was able to prove its case against the appellant beyond all manner of doubt and thus, no interference is called for in the appellant's conviction as recorded by the learned trial Judge. 10. Heard and considered the arguments advanced at the bar and perused the judgment impugned and the record. 11. The facts which need to be re-evaluated and appreciated in this case have already been encompassed above. The charge, which was framed by the learned trial Judge against the appellant for the offence of Prevention of Corruption Act, is reproduced hereinwhere: " vki fnukad 28-11-1998 dks nksigj 12-15 cts vFkok mlds yxHkx jktLFkku jksMost ds ukxkSj fMiks ds cl LVs.M ls ukxkSj ls lqtkux<+ ok;k MhMokuk tkus okyh cl uacj vkj0,l0ch0 4129 esa crkSj ifjpkyd dk;Zjr Fks vkSj ml fnu vkius mDr cl esa ;k=k djus okys ;kf=;ksa ls ;k=k ds fdjk;s dh jkf'k izkIr dj yh] ysfdu mUgsa fVdV tkjh ugha fd;k vkSj bl izdkj vius Hkz"V ,oa voS/k rjhds ls Lo;a vius fy, fdjk;s dh jkf'k ;kf=;ksa ls izkIr dj yh vkSj crkSj yksd lsod 116-50 dh jkf'k dk cn;kUrhiwoZd nqfofuZ;ksx fd;k ,oa 116-50 iSls crkSj fdjk;k izkIr djds vius mi;ksx ds fy, vkSj jktLFkku jksMost ds fVdV ;kf=;ksa ds tkjh ugha fd;s vkSj bl izdkj Hkz"V rjhds ls yksd lsod ds :i esa ;g jkf'k vius vius ikl j[krh tks /kkjk 13 ( 1 ) ( lh ) lifBr /kkjk 13 ( 2 ) Hkz"Vkpkj fuokj.k vf/kfu;e] 1988 es n.Muh; viuk/k gS vkSj esjs izlaKku esa gSA " 12. Thus, the specific charge proposed by the prosecution against the appellant under Section 13(1)(c) of the Act was that he received a sum of 116.50 Paisa from some of the passengers sitting in the bus and then, did not issue tickets to them, thereby he caused wrathful loss to the Roadways by using corrupt means. 13. Now the limited question which is posed before this Court for consideration is as to whether the prosecution was able to prove that the appellant dishonestly misappropriated or converted for his own use any money entrusted to him or under his control as a public servant. 14. Only two out of 26 passengers supported the prosecution theory regarding the appellant not having provided them tickets after taking money from them. PW-1 Sofia Begum alleged that she gave a sum of Rs. 14. Only two out of 26 passengers supported the prosecution theory regarding the appellant not having provided them tickets after taking money from them. PW-1 Sofia Begum alleged that she gave a sum of Rs. 10/- to the conductor for preparing a ticket. The conductor asked her to wait for a while, in the meantime, the bus was raided by the checking party. She stated in her examination-in-chief that the amount was given by her to the conductor about 10-15 minutes before the checking took place. A suggestion was given to her that the conductor was busy in issuing tickets to the other passengers in the bus and that is why he could not issue her a ticket in time. She feigned ignorance to this suggestion. 15. Hulas Chand PW-31 alleged that he boarded the bus after it started from the bus stand. He alleged that he paid about Rs. 14-15/- to the conductor but the conductor did not give him the ticket and in the meantime, the checking party came. From the tenor of the statements of both these witnesses, a definite possibility arises that the appellant might have been delaying in issuing tickets to both these persons for bona fide reasons and in the meantime, the checking party came there and therefore, he could not issue the tickets to both these witnesses. In view of overall factual scenario, this Court is of the opinion that from the evidence of Sofia Begum PW-1 and Hulaschand PW-31, the prosecution has not been able to prove beyond all manner of doubt that the petitioner misappropriated on dishonestly converted to his own use the money allegedly given to him by these witnesses. 16. Upon considering the charge framed against the appellant for having misappropriated a sum of Rs. 116.50 Paisa in context of the evidence led at the trial, it is manifest that the prosecution could not provide enough proof to substantiate this charge. The evidence of the prosecution witnesses in this regard is shaky insufficient and not wholly reliable. 17. As per the inspection memo Ex.P-9, a sum of Rs. 2630.40 Paisa was recovered from the appellant upon his personal search. The evidence of the prosecution witnesses in this regard is shaky insufficient and not wholly reliable. 17. As per the inspection memo Ex.P-9, a sum of Rs. 2630.40 Paisa was recovered from the appellant upon his personal search. The learned trial Judge vide para 21 of the impugned judgment took the following view for the recovered amount:- " 21- tgkWa rd :0 2630-40 iSls vfHk;qDr th;kjke ds dCts ls cjken gksus dk iz'u gSa] vfHk;kstu i{k ;g lkfcr djus esa vlQy jgk gS fd ;g fdjk;s dh jkf'k Fkh vFkok fdlh vijk/k ls bl jkf'k dk dksbZ lEcU/k jgk gSA vfHk;qDr ds fo:) tks vkjksi /kkjk 13 ( 1 ) ( lh ) o /kkjk 13 ( 2 ) ih0lh0 ,DV ds vUrxZr yxk;k x;k gS mlesa Lo;a esa ;g of.kZr gS fd 116-50 iSls ds fVdV jkf'k dk bl vfHk;qDr us cnfu;fr ls nqfoZfu;ksx fd;k gSA bl jkf'k ds lEcU/k esa vfHk;qDr us Lo;a us Hkh Li"Vhdj.k fn;k gS fd bl jkf'k esa :0 500@& eqdukjke ds Fks vkSj :0 2100@& fdlh cLrhjke uked eSdsfud ds Fks] tks cLrhjke us bl vfHk;qDr dks vius xkao fHktokus ds fy, fn;s FksA bl dFku dk leFkZu eqdukjke us Hkh fd;k gS vr% bl jkf'k dk orZeku vijk/k ls dksbZ lEcU/k ughsa tksM+k tk ldrk gS vkSj ;k jkf'k :0 2630-40@& vfHk;qDr th;jke dks ykSVk;s tkus dk vkns'k fn;k tkrk gSA tgka rd :0 116-50 dk iz'u gS ;fn vc rd vfHk;qDr th;kjke ls olwy ugha fd;s x;s gks] ;g jkf'k foHkkx th;kjke ls olwy djus dh vf/kdkjh gksxhA " 18. Though the reasoning and the logic given by the learned trial Judge for the amount of Rs. 2630.40 Paisa is not very convincing but in view of the fact that the charge proposed against the accused was limited to the alleged misappropriation of 116.50 Paisa only, the finding cannot be held to be totally unjustified. Therefore, this Court is of the opinion that the prosecution has not been able to prove satisfactorily that the accused appellant dishonestly or fraudulently misappropriated or converted for his own use any property entrusted to him or under his control as a public servant so as to uphold his guilt for the offence under Section 13(l)(c) of the Act. 19. Therefore, this Court is of the opinion that the prosecution has not been able to prove satisfactorily that the accused appellant dishonestly or fraudulently misappropriated or converted for his own use any property entrusted to him or under his control as a public servant so as to uphold his guilt for the offence under Section 13(l)(c) of the Act. 19. Once the learned trial Judge himself held that the recovered amount of 12630.40 Paisa could not be linked to the offence, then, the conviction of the appellant for the offences under Sections 13(l)(c) and 13(2) of the Prevention of Corruption Act can obviously not be sustained and is set aside. 20. Now coming to the charge under the Rajasthan State Road Transport service (Prevention of Ticketless Travel) Act, 1975. It is not in dispute that none of the passengers sitting in the bus were found having any ticket with them. 21. This Court considered a similar issue involving the offence under the Act of 1975 in the case of Deen Mohd. v. State of Rajasthan reported in RLW 1987 S98. It was held as below: "3. I am unable to agree with the submission of the learned counsel for the petitioner. There is no such ingredient of the offence under Section 8 that the conductor should have accepted the fare and thereafter he should fail to supply the ticket. Sections 3 and 8 of the Act run as under:- "8: Breach of duty imposed under Section 3.-If a conductor or any other person authorised by the corporation, whose duties to supply a ticket to a person who travels or intends to travel in a motor vehicle on payment of fare by him, negligently or wilfully omits to supply proper ticket to such person or supplies to him an invalid ticket when demanded by such person, he shall be liable to be punished with imprisonment of either description which may extend to one month or with fine which may extend to two hundred rupees or with both in addition to any disciplinary action for such misconduct, which he is liable to undergo under the conditions of his service." 4. It may be stated that the duty to make payment is of the traveller or passenger and on demand of ticket being make a payment of fare, the ` duty of conductor arises to supply him the proper ticket..." 22. It may be stated that the duty to make payment is of the traveller or passenger and on demand of ticket being make a payment of fare, the ` duty of conductor arises to supply him the proper ticket..." 22. Therefore, it is apparent that the Act enjoins a duty upon the conductor o issue a ticket to the passenger. A commission of the offence under Section 8 Does not require that the failure to issue the ticket should precede the collection if the fare from the passenger. Therefore, in view of the facts narrated above, be appellant's conviction for the offence under Section 3/8 of the Rajasthan State Road Transport Service (Prevention of Ticketless Travel) Act, 1975 is not able to be interfered with. 23. The appeal is thus, allowed in part. The judgment impugned dated 2.11.1998 passed by the learned Special Judge cum Sessions Judge, Prevention of Corruption Act Cases, Jodhpur whereby the appellant was convicted for the offences under Sections 13(l)(c) and 13(2) of the Prevention of Corruption Act is quashed and the appellant's conviction for the aforesaid offence is set aside. 24. However, whilst upholding the appellant's conviction for the offence under Section 3/8 of the Rajasthan State Road Transport Service (Prevention of Ticketless Travel) Act, 1975, rather than sentencing him to substantive imprisonment, he is sentenced to a fine of Rs. 200/- in default of payment of fine, he shall further undergo seven days' imprisonment.Appeal partly allowed. *******