Research › Search › Judgment

Himachal Pradesh High Court · body

2013 DIGILAW 800 (HP)

PIARA SINGH v. STATE OF HIMACHAL PRADESH

2013-09-09

KULDIP SINGH

body2013
JUDGEMENT KULDIP SINGH, J. - 1.THIS judgment shall dispose of Criminal Appeal No. 319 of 2011 and Criminal Appeal No. 320 of 2011 both arising from judgment dated 17/18.8.2011 passed by Special Judge, Una, H.P. in Corruption Case No.10 of 2009 convicting and sentencing both the appellants to undergo rigorous imprisonment for one year and fine of Rs.2,000 each under Section 7 of the Prevention of Corruption Act, 1988, rigorous imprisonment for one year and fine of Rs.3,000 each under Section 13(2) of the Prevention of Corruption Act, 1988. In default of payment of fine both the appellants to further undergo simple imprisonment for three months. 2. THE prosecution case, in brief, is that Piara Singh appellant was posted at the relevant time Kanungo Circle, Ishpur and appellant Sham Lai was posted as Patwari, Bhadsali. On 17.1.2008 at about 2.30 p.m. complainant PW1 Tej Karan lodged complaint Ex. PW13A before Deputy Superintendent of Police, SV&ACB, Una alleging that he had purchased land in the name of his wife PW 8 Raj Kumari in village Bhadsali. He moved an application for demarcation of said land about 3 -4 months ago before Tehsildar, Una, who forwarded the same to Circle Kanungo. After about 10 days, the complainant approached Circle Kanungo Piara Singh for demarcation of land but he was putting off the complainant on one pretext or the other. On 15.1.2008 the complainant again approached the said Kanungo for demarcation of land but this time the said Kanungo told the complainant that he would give demarcation but complainant shall have to do his 'Sewa Paani'. On asking of complainant what he would take for' Sewa Paani', the Kanungo Piara Singh told that his fee would be Rs.500. The Kanungo asked the complainant to contact Sham Lal Patwari. The complainant approached Sham Lal Patwari, who told that the demarcation would be given day after, but for this the complainant shall have to pay some charges. On asking of the charges, Sham Lal, Patwari told that his charges would be Rs.200. 3. THE complainant did not want to pay bribe money to Kanungo and Patwari, he sought action against corrupt officials. On these allegations, FIR Ex.PW5A was registered under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (for short 'Act') and the investigation was carried out by PW13 Chuni Lal, Inspector. 3. THE complainant did not want to pay bribe money to Kanungo and Patwari, he sought action against corrupt officials. On these allegations, FIR Ex.PW5A was registered under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (for short 'Act') and the investigation was carried out by PW13 Chuni Lal, Inspector. A raiding party was constituted consisting of shadow witness PW 2 Kamal Dev, PW5 Inspector Rai Singh, PW4 Anjani Kumar, ACF and other vigilance officials. A demonstration was given for laying trap and for mixing of solution of sodium carbonate with phenolphthalein powder, demonstration memo Ex. PW 1D was prepared. PW1 Tej Karan complainant produced seven currency notes Ex.P2, Ex.P3, Ex.P4, Ex.P5, Ex.P6, Ex.P8 and Ex.P9 of Rs.100 each. The serial numbers of the currency notes were noted and phenolphthalein powder was applied over the currency notes, which were handed over to PW1 Tej Karan with instruction to put the same in back pocket of his pant and not to shake hand with anybody. PW1 Tej Karan was instructed to hand over the currency notes to appellants on demand. PW2 Kamal Dev, shadow witness was directed to signal the trap party on receipt of bribe money by the appellants and to this effect memo Ex.PW1C was prepared. 4. THE raiding party headed by PW13 Chuni Lal at about 3.00 p.m. left for village, Bhadsali. PW2 Kamal Dev, shadow witness at about 3.30 p.m. gave the signal. The raiding party consisting of complainant PW1 Tej Karan and other witnesses went to the office of Kanungo. Many persons were standing outside the office of the Kanungo. After ascertaining the identity of the appellants, police party caught hold the appellants from their wrists. PW13 Chuni Lal after disclosing his identity and members of the raiding party to the appellants, associated PW3 Janak Raj, Up -Pradhan, Bhadsali who was present at the spot. The hands of the appellants were got washed in pans with clear water. The solution of sodium carbonate was added to the hand wash which turned pink and pink solution was put into glass nips Ext. P10 and Ex.P11 which were sealed with seal impression 'I' and were taken into possession vide memo Ex.PW1E and Ex.PW -1E1. The hands of the appellants were got washed in pans with clear water. The solution of sodium carbonate was added to the hand wash which turned pink and pink solution was put into glass nips Ext. P10 and Ex.P11 which were sealed with seal impression 'I' and were taken into possession vide memo Ex.PW1E and Ex.PW -1E1. The appellant Sham Lal got recovered two currency notes Ex.P8 and Ex.P9 of Rs.100 each from the right pocket of his pant in presence of witnesses, which were tallied with the numbers of currency notes in memo Ex.PW1C and taken into possession in envelope Ex.P7 vide memo Ex.PW1E4 which was sealed with seal T. The pocket of pant of accused Sham Lal from which two currency notes were recovered, were got washed in pan and on addition of solution of sodium carbonate the pocket wash turned pink which was taken in a nip vide memo Ex.PW1E2 and sealed with seal 'I'. 5. THE appellant Piara Singh also got recovered five currency notes Ex.P2, Ex.P3, Ex.P4, Ex.P5 and Ex.P6 of Rs.100 each from inner pocket of his pant in presence of witnesses which were tallied with the numbers of currency notes recorded in memo Ex.PW1C and taken into possession in envelope Ex.P1 vide memo Ex.PW -1E5 after sealing the same with seal 'I'. The pocket of pant of appellant Piara Singh from which five currency notes were recovered was got washed in pan and on addition of solution of sodium carbonate the pocket wash turned pink, which was put in a nip and was sealed with seal 'I' and memo Ex.PW1E -3 was prepared. The seal was handed over to PW4 Anjani Kumar. 6. THE accused were arrested for offence punishable under Sections 7 and 13 (2) of the Act. The appellant Piara Singh during investigation produced demarcation proceedings which were taken into possession vide memo Ex.PW3A. A spot map Ex.PW13F was prepared. The appointment and posting orders of the appellants were taken into possession. The statements of witnesses were recorded. FSL report Ex.PW13D was obtained. K.R. Bharti, Deputy Commissioner, Una granted prosecution sanctions Ex.PW11A and Ex.PW11B to prosecute the appellants. On completion of investigation, the report under Section 173 Cr.P.C. was submitted in the Court. The accused were charged under Sections 7 and 13 (2) of the Act. They pleaded not guilty and claimed trial. FSL report Ex.PW13D was obtained. K.R. Bharti, Deputy Commissioner, Una granted prosecution sanctions Ex.PW11A and Ex.PW11B to prosecute the appellants. On completion of investigation, the report under Section 173 Cr.P.C. was submitted in the Court. The accused were charged under Sections 7 and 13 (2) of the Act. They pleaded not guilty and claimed trial. The prosecution has examined 13 witnesses and also produced some documents. The statements of appellants were recorded under Section 313 Cr.P.C. The appellant Piara Singh tendered in defence documents Ex. DA to Ex. DL. The appellant Sham Lal led no defence evidence. On conclusion of trial, the Special Judge convicted and sentenced the appellants, as noticed above. Piara Singh appellant has filed Criminal Appeal No. 319 of 2011 and Sham Lal has filed Criminal Appeal No. 320 of 2011 against their conviction and sentence. 7. I have heard Mr. Anoop Chitkara, learned counsel for the appellants and Mr. M.A. Khan, learned Additional Advocate General for the respondent in both the appeals and have also gone through the record. The learned counsel for the appellants has submitted that the Court below has misconstrued and misinterpreted the evidence in convicting and sentencing the appellants. The prosecution has miserably failed to prove the case against the appellants beyond reasonable doubt. The appellants are entitled to acquittal. In any case the sentence imposed is excessive. The learned Additional Advocate General has supported the impugned judgment. He has submitted that the prosecution has proved the case, the Court below has rightly appreciated the material on record. There is no flaw in the judgment. He has submitted for dismissal of both the appeals. 8. EX .PW1B is the undated complaint of PW1 Tej Karan submitted to Dy. S.P., SV & ACV, Una stating therein that about 3 -4 months ago he had submitted an application to Tehsildar for demarcation of land of his wife PW8 Raj Kumari which was marked to Halqua Kanungo. It has been alleged that the complainant met Halqua Kanungo Piara Singh about 10 days ago in connection with the demarcation, he put off the matter on one pretext or the other. Thereafter, complainant met Halqua Kanungo 3 or 4 times but without any result. On 15.1.2008 he again met Halqua Kanungo, who told that demarcation would be done but the complainant will have to incur some expenses on 'Sewa Paani'. Thereafter, complainant met Halqua Kanungo 3 or 4 times but without any result. On 15.1.2008 he again met Halqua Kanungo, who told that demarcation would be done but the complainant will have to incur some expenses on 'Sewa Paani'. On asking, he told that 'Sewa Paani' expenses Rs.500 as his own fees and to contact Halqua Patwari. The complainant contacted Sham Lal, Patwari, who told that demarcation would be done next day, but the complainant will have to incur some expenses. On asking, the Patwari told that his expenses would be Rs.200. He further told that something will have to be paid to Kanungo also. Pw -13 Chuni Lal has stated that complaint Ex.Pw1B was received on 17.1.2008 and in pursuance thereof, FIR Ex.Pw5A was registered and an endorsement to this effect Ex.Pw13A was made on complaint Ex.Pw1B. The endorsement Ex.Pw13A was signed by Dy. S.P., D.K. Chaudhary. The appellants have not denied carrying out demarcation by them of the land of Pw8 Raj Kumari wife of complainant. Ex.Pw8A is the information regarding demarcation. The accused in their statements under Section 313 Cr.P.C. have stated that they have been falsely implicated by the complainant as they did not oblige him in partition case. He was in possession of more area than his share. 9. IT has come in evidence that complaint Ex.PW1B was submitted by PW1 Tej Karan to Dy. S.P., SV & ACB, Una on 17.1.2008. It has been stated in Ex.PW1B that the complainant met Kanungo on 15.1.2008 who demanded Rs.500 for carrying out demarcation and also directed the complainant to contact Patwari Halqua, Sham Lal. On meeting Sham Lal, Patwari, the complainant was told that the demarcation would be carried out next day. Ex.PW8A is the notice of demarcation. PW13 Chuni Lal, Investigating Officer has stated that demarcation was carried out between 2.30 p.m. to 3.15 p.m. on 17.1.2008. 10. THE complaint Ex.PW -1/B indicates that appellant Piara Singh was demanding 500/ - and appellant Sham Lal Rs.200 for carrying out demarcation. There is no indication in complaint Ex.PW1B that complainant assured appellants the payments as demanded by them for carrying out demarcation. On the contrary, the complainant approached the police and lodged complaint. 10. THE complaint Ex.PW -1/B indicates that appellant Piara Singh was demanding 500/ - and appellant Sham Lal Rs.200 for carrying out demarcation. There is no indication in complaint Ex.PW1B that complainant assured appellants the payments as demanded by them for carrying out demarcation. On the contrary, the complainant approached the police and lodged complaint. According to complainant, he had given application for demarcation 3 -4 months prior to lodging of complaint, but appellant Piara Singh, Kanungo put off the demarcation on one pretext or the other, even though the complainant met him for that purpose 3 or 4 times. It means the appellants were insisting payment of amount before demarcation of the land. It is not the prosecution case that either PW1 Tej Karan or his wife PW8 Raj Kumari the owner of the land which was to be demarcated paid any amount to appellants prior to demarcation. There is contradiction in the prosecution story insofar putting off demarcation without payment of amount as demanded by the appellants and then actually carrying out demarcation on 17.1.2008 by the appellants without any assurance of payment or actual payment either by PW8 Raj Kumari owner of the land or her husband PW1 Tej Karan complainant. PW -8 has stated that demarcation proceedings were signed by her and her husband PW1. The signatures were appended after demarcation was given. Once the demarcation was given, proceedings were signed by PW8 and PW1, there was nothing left to be done by appellants for demarcating the land. The prosecution has not produced the demarcation proceedings signed by PW1 and PW8 after demarcation for which adverse inference is to be drawn against prosecution. Once the appellants had given demarcation and proceedings were signed by PW1 and PW8 then alleged demand of appellant for carrying out demarcation from PW1 becomes meaningless. 11. PW 1 Tej Karan has stated that on demand of accused he paid Rs.700 to Piara Singh and Rs.200 to Sham Lal. He has also stated that at that time Kamal Dev was with him, who gave signal to ACU men, who rushed and detained both the accused. The prosecution intends to convey that Kamal Dev heard the conversation between appellants and PW1 and thereafter he gave the signal to ACU men. But PW2 Kamal Dev has not stated that appellants demanded any amount from PW1 Tej Karan for carrying out demarcation. The prosecution intends to convey that Kamal Dev heard the conversation between appellants and PW1 and thereafter he gave the signal to ACU men. But PW2 Kamal Dev has not stated that appellants demanded any amount from PW1 Tej Karan for carrying out demarcation. The prosecution has not examined any other person to lend assurance to the statement of PW1 that appellants demanded money from the complainant for carrying out demarcation. On the contrary, PW4 Anjani Kumar, PW12 Anant Kumar and PW13 Chuni Lal have stated that signal was given by the complainant. This indicates that Kamal Dev was not in picture to the conversation of appellants and PW1. 12. IN Bal Krishan Sayal v. State of Punjab (1987) 2 SCC 647 ., the Supreme Court has held that taking the unsatisfactory character of the prosecution evidence in regard to the conversation preceding the passing of the currency notes and the feature that for waiver of Rs.102, the bribe of Rs.100 was offered. The prosecution has failed to establish its case beyond reasonable doubt and the appellant is entitled to this benefit of this situation. The Supreme Court in Meena (Smt.) W/o Balwant Hemke v. State of Maharashtra (2000) 5 SCC 21 : 2000(3) Supreme 334 : 2000(2) Crimes 116., has held that law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also. The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. The Supreme Court further" held that the fact that the judgments of the courts below were rendered concurrently cannot dissuade the court from interfering in a case like this where such findings and conviction have been recorded on mere conjectures and erratic evaluation of the evidence on record. Consistency for the mere sake of it is no virtue. It is an obligation of judicial conscience to correct eirors, where the same are manifest. Consistency for the mere sake of it is no virtue. It is an obligation of judicial conscience to correct eirors, where the same are manifest. In T. Subramanian v. State of T.N (2006) 1 SCC 401 :2006( 1) Supreme 1:2006(1) Crimes 75: 2006(1) SBR 459 ., it has been held that mere receipt of Rs.200 by the appellant from PW1 on 10.7.1987 will not be sufficient to fasten guilt under Section 5(1) (a) or Section 5 (1) (d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification. The Supreme Court in C.M. Girish Babu v. CBI, Cochin (2009) 3 SCC 779 . High Court of Kerala, reiterated that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. 13. IN Banarsi Dass v. State of Haryana (2010) 4 SCC 450 .the Supreme Court has held as follows: "25. Reliance on behalf of the appellant was placed upon the judgment of this Court in CM. Girish Babu (2009) 3 SCC 779 , where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in paras 18 and 20 of the judgment held as under : (SCC pp.784 and 785 -86) "18. In Suraj Mal v. State (Delhi Admn.) (1979) 4 SCC 725 this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In Suraj Mal v. State (Delhi Admn.) (1979) 4 SCC 725 this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. 14. A three - Judge Bench in M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691 , while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCC p.700, para 24) '24 ......we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with in length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra, (2000) 8 SCC 571 ). The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel: {Madhukar case, SCC p. 577, para 12) "12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted 'as motive or reward' for doing or forbearing to do any official act. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the Court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. So the word 'gratification' need not be stretched to mean reward because reward is the outcome of the presumption which the Court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like 'gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word 'gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it." In fact, the above principle is no way a derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram v. State of Rajasthan, (1975) 2 SCC 227 where similar view was taken." 20. The office of Piara Singh, Kanungo was situated in village Bhadsali. The land which was to be demarcated was also located a few paces from the office of Kanungo, the distance between Kanungo office and Patwar Khana at the relevant time was one kilometer as stated by PW1. The demarcation was already over when the raiding party reached the spot. PW1 has stated that he had paid Rs.700 to appellants outside the office of Piara Singh. He has also stated that he had paid Rs.200 to appellant Sham Lai inside the office of Piara Singh. He then changed and said he paid Rs.700 to appellants in the office of Piara Singh. The prosecution case is that both the appellants were together when the bribe money was recovered. PW13 Chuni Lal has stated that Sham Lal, Patwari was searched in the office room of office Kanungo. Sham Lal was arrested outside the office of Kanungo and documents pertaining to raid were prepared in the same office. In other words, the search and documents pertaining to raid were prepared in the office of Piara Singh. Ex.PW1E1 is the memo of recovery of hand wash of Sham Lal, Patwari. Sham Lal was arrested outside the office of Kanungo and documents pertaining to raid were prepared in the same office. In other words, the search and documents pertaining to raid were prepared in the office of Piara Singh. Ex.PW1E1 is the memo of recovery of hand wash of Sham Lal, Patwari. This memo is signed by PW4 Anjani Kumar and PW3 Janak Raj as witnesses. It is significant to note that Ex.PW1E1 is stated to have been prepared at the place of occurrence Patwar Khana, Bhadsali. Similarly, Ex.PW1E2 is the memo of pocket pant wash of Sham Lal, Patwari and recovery thereof. This document is also signed by PW3 Janak Raj and PW4 Anjani Kumar as witnesses. This document is also stated to have been prepared at the place of occurrence Patwar Khana, Bhadsali. Ex.PW1E4 is the recovery memo of Rs.200. This is signed by PW4 Anjani Kumar, PW2 Kamal Dev,PWl Tej Karan and PW3 Janak Raj as witnesses. This document also indicates that it has been prepared at the place of occurrence Patwar Khana, Bhadsali. Ex.PW -1/ E is the memo of hand wash of Piara Singh and recovery thereof. Ex.PWlE3 is the memo of pant pocket wash of Piara Singh and recovery thereof. Ex.PW1E5 is the recovery of Rs.500 from Piara Singh. 15. THE appellant Piara Singh was Kanungo and appellant Sham Lal was Patwari and they were having separate offices situated at a distance of one kilometer apart. PW13 Chuni Lal, Inspector has stated that the search memo was prepared in that office where Patwari Sham Lal was searched. He has also stated that Sham Lal was arrested outside the office of Kanungo and documents pertaining to raid were prepared in the same office. The documents Ex.PW1E1, Ex.PW1E2 and Ex.PW1E4 indicate the place of occurrence Patwar Khana. The cumulative effect of oral and documentary evidence led by the prosecution is that the prosecution itself has given place of occurrence Kanungo office and Patwar Khana which are as per PW1 at a distance of one kilometer from each other. This has created a serious dent in the prosecution case. 16. THE learned Additional Advocate General has relied the presumption under Section 20 of the Act and cited B. Noha v. State of Kerala and another (2006) 12 SCC 277 : 2006(8) Supreme 616 : 20064) Crimes 326 (SC).Girja Prasad (dead) by LRS. This has created a serious dent in the prosecution case. 16. THE learned Additional Advocate General has relied the presumption under Section 20 of the Act and cited B. Noha v. State of Kerala and another (2006) 12 SCC 277 : 2006(8) Supreme 616 : 20064) Crimes 326 (SC).Girja Prasad (dead) by LRS. v. State of M.P. (2007) 7 SCC 625 : 2007(6) Supreme 49 : 2007(3) Crimes 367. and State of Madhya Pradesh v. Harishankar Bhagwan Prasad Tripathi (2010) 8 SCC 655 : 2010(6) Supreme 284 : 2010(4) Crimes 15 (SC). and submitted that it is for the appellants to explain the amounts which were recovered from them. The sub section (1) of Section 20 provides in any trial of an offence under Section 7 or Section 11 or Section 13 (1) (a) or (b) where it has been proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7. Similar presumption is provided under sub Section (2) of Section 20 in a trial of an offence punishable under Section 12 or under clause(b) of Section 14. The Section 20 provides initial burden on the prosecution to prove gratification and only thereafter presumption under Section 20 is available. In B. Noha (supra), it was held that when an amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. In Girja Prasad (supra), the Supreme Court has approved the submission of the learned counsel for the respondent State in that case that once it is proved that the amount has been received by the accused, presumption under Section 4 of the Prevention of Corruption Act, 1947 would get attracted. In State of Madhya Pradesh v. Harishankar Bhagwan Prasad Tripathi (supra) no attempt was made by the defence to explain as to how the tainted currency came in the possession of the respondent, except that the same had been handed over to him by Ghanshyamdas. In State of Madhya Pradesh v. Harishankar Bhagwan Prasad Tripathi (supra) no attempt was made by the defence to explain as to how the tainted currency came in the possession of the respondent, except that the same had been handed over to him by Ghanshyamdas. In the cases relied by learned Additional Advocate General, the recovery of tainted money was proved. 17. IN CM. Girish Babu (supra), it has been held as follows: "21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross -examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that the accused received the amount towards gratification. 22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. "4. ...It is well established that where the burden of an issue lies upon the accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 (1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt." (emphasis supplied) (See V.D. Jhingan v. State of U.P., AIR 1966 SC 1762 , p.1764, para 4.)" 18. THE appellants have projected the case that they have been falsely implicated by the complainant inasmuch as in a partition case they did not oblige the complainant who was in possession of land in excess to his share. The complainant has admitted that he had filed objections against the report of appellants in the partition case which was dismissed by Tehsildar and appeal filed by him was also dismissed by the Collector. In the facts and circumstances of the case, PW1 is not a witness of such character on whose sole testimony the appellants can be convicted. PW -2 independent witness of the raiding party has not supported the prosecution on material particulars. He has stated that appellants had not recovered currency notes Ex.P2, Ex.P3, Ex.P4, Ex.P5, Ex.P6 and Ex.P8 and Ex.P9 from accused in his presence. He was declared hostile. Pw3 Janak Raj was also declared hostile. He denied that after demarcation the accused had asked illegal gratification which was paid by Pw1. He signed documents Ex.Pw1E, Ex.Pw1E1, Ex. Pw1E2, Ex. Pw1E3, Ex.Pw1E4 and Ex.Pw1E5 without understanding their contents. The statement of Pw4 Anjani Kumar regarding recovery of Rs.500 from Piara Singh and Rs.200 from Sham Lal does not inspire confidence in view of Ex.Pw1E1, Ex.Pw1E2 and Ex.Pw1E4 which show the place of occurrence Patwar Khana which is at a distance of 1 Kilometer from Kanungo office as per Pw1. Pw5 Inspector Rai Singh has stated that he had not entered the office of accused No. 1 (Piara Singh) before detaining him. Pw8 Raj Kumari has stated till the time she remained in the office of Kanungo and Patwari, no police official had come over there. Pw5 Inspector Rai Singh has stated that he had not entered the office of accused No. 1 (Piara Singh) before detaining him. Pw8 Raj Kumari has stated till the time she remained in the office of Kanungo and Patwari, no police official had come over there. The statement of Pw12 Anant Kumar also does not inspire confidence regarding the place of occurrence in view of Ex.Pw1E1, Ex.Pw1E2 and Ex.Pw1E4. 19. THE prosecution case in the teeth of above discussed evidence and law regarding the demand of bribe and recovery of bribe money is shrouded with suspicion. The prosecution has not discharged its initial burden to prove payment of gratification by PW1 to appellants. The prosecution under the shelter of Section 20 of the Act cannot escape from the responsibility to prove illegal gratification nor prosecution can be permitted to canvass for the conviction of the appellants merely by invoking Section 20 of the Act without discharging its own burden to prove payment of gratification to the appellants. No doubt, the corruption is a very serious issue and it is to be dealt with heavy hands, but simultaneously, it does not mean that even in the absence of legal evidence, the accused is to be convicted. The Court below has misconstrued, misinterpreted the evidence in recording the finding of guilt of appellants. The prosecution has failed to prove the case against the appellants beyond reasonable doubt. The impugned judgment in both the appeals is not sustainable. 20. IN view of above, both the appeals are allowed, judgment dated 17/18.8.2011 passed by Special Judge, Una, H.P. in Corruption Case No.10 of 2009 is set -aside. Both the appellants are acquitted of the charge, their bail bonds are discharged. The fine amount, if any, deposited by them, be refunded to them. Appeal allowed.