Jagdish Chandra Makhija Vs. State of Madhya Pradesh - Court Judgment

P.C. Pathak, J.

1. The appellant, a Senior Geohydrologist (Executive Engineer) in Ground Water Survey Department of State of M.P., posted at Khandwa, was convicted under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act (hereinater called 'the Act') and under section 161, Indian Penal Code and was sentenced to R.I. for two yean; and a fine of Rs. 1,000/-, in default R.I. for six months, under each, for accepting illegal gratifiction of Rs. 200/- from Ashok Kumar Sharma (PW. 1), a Surveyor, in subdivision of the same department at Dhar.

2. On 1-3-1981, Ashok Kumar submitted a written report (Ex. P. 1) to Superintendent of Police, Divisional Office of the Vigilance Board, Indore, to the effect that the appellant demanded bribe of Rs. 200/- for early payment of his bills. He directed Inspector Govind Rao Bhanwar (PW. 9) to take immediate action on the report according to law. The Inspector, along with the complainant, Dy. S.P. Nanawati (PW. 6) and other police personnel proceeded to Khandwa on 2-3-1981. On his application (Ex. P. 3), Dy. Collector Shri Krishna Chopre (PW. 10) joined to witness the trap. He also summoned Vishwas Khirwarkar (PW. 5) as a Panch. They all assembled in the waiting room at the railway station. After he had explained how the trap was to be laid, Ashok Sharma produced four currency notes of the denominations of Rs. 50/-. Phenolphthalein powder was applied to the notes (Articles G.1 to G.4) and were placed in the pocket of Ashok Sharma. They were instructed to overhear the conversation between the appellant and Ashok according to the situation. All these were recorded in preliminary panchnama (Ex. P. 2).

3. Ashok Sharma and Vishwas went together on foot, while the rest on a jeep to the appellant's office in Ghaspura. Ashok Sharma and Vishwas went inside the office while the other members of the trap party, took their positions nearabout. On receipt of signal, the members of the trap party rushed to the appellant's room. After disclosing their identity, they caught the appellant's hands and washed his fingers and hands in the solution of sodium carbonate which became pink. The solutions were preserved in bottles (Article D) and (Article E). On enquiry by Inspector Bhanwar about the currency notes of bribe, and the appellant's reply that they were in his pocket of the bushshirt, Dy. Collector Chopre took them out, and after the numbers tallied, those notes were seized and kept in sealed cover. The pocket of the bushshirt was dipped in the sodium carbonate solution which turned pink. This solution was preserved in bottle (Article F). The details of the raid were written in Panchnama (Ex. P.3). The appellant signed the same in token of receiving its copy.

4. On the same day Inspector Bhanwar seized relevant documents namely bill (Ex. P. 13-A) for Rs. 2,168.40p. as arrears of pay of the suspension period, medical bill (Ex. P. 10-A) for Rs. 120/-, pay fixation and increments certificate (Ex. P. 9-A), service book and file relating to earned leave from Shyamkumar Mishra (PW. 3), vide seizure memo. (Ex. P. 16), but were given on suprudnama to him, vide Ex. P. 17. Inspector Bhanwar recorded Dehati Nalish (Ex. P. 8) in the night at 8.00 p.m. Next day i.e. on 3-3-1981, he prepared a sketch map (Ex. P.29). On 12-3-1981, Inspector Bhanwar seized the bill of arrears of pay, vide Ex.P. 19. He sent the bottles, containing the solutions after wash, to Chemical Examiner, Sagar as per Ex.P. 30. The Chemical Examiner sent his report (Ex. P. 31). On the basis of Dehati Nalish, Special Police Establishment, Bhopal registered offence and prepared FIR (Ex. P.28-A).

5. After completing the investigation, Inspector Bhanwar obtained sanction (Ex. P. 26) on 27-8-1982 from the Special Secretary, Law and Legislative Affairs Department of the State Government. Thereafter he filed challan against the appellant under section 161, Indian Penal Code and section 5(1)(d) read with section 5(2) of the Act.

6. The Special Judge, Khandwa framed charges under section 161, Indian Penal Code and section 5(1)(d) read with section 5(2) of the Act. The appellant denied the charges and submitted that it was the repayment of loan. His another subordinate M.A. Qureshi (PW. 4), Assistant Geohydrologist was enmical with him and, therefore, both conspired to implicate him falsely. He also filed his written statement detailing the circumstances as to why the payment of the bills was delayed. He examined Harinarayan Rathi (D.W. 1) and filed 16 documents, Exs. D1 to D16, to prove his defence.

7. The learned trial Court held that appellant accepted gratification of Rs. 200/- from Ashok Sharma as a motive for passing his bills. The appellant failed to prove that Ashok Sharma had any loan transaction with him. The appellant was therefore convicted and sentenced as indicated above. Hence this appeal.

8. Learned counsel for the appellant argued that the prosecution failed to prove that the appellant accepted the amount as gratification as a motive for early payment of bills. The bills remained unpaid for the reasons beyond the appellant's control. The prosecution also failed to prove the alleged demand much less any agreement by Ashok Sharma to pay the gratification. In the absence of proof of any prior agreement to pay and of the connection between the payment and the performance of official duty, no presumption under section 4(1) of the Act can be drawn against the appellant merely because of the recovery of money from the appellant. Reliance was placed on Hakumat Rai Nigam v. State, 1983 Cr. L.J. NOC 5 Del. In other words mere recovery of money, divorced for the circumstances, under which it was paid was not sufficient to convict the appellant. See Surajmal v. State (Delhi Admn.), AIR 1979 SC 1408.

9. The question for decision is whether the prosecution has proved the charges beyond all the reasonable doubt. Before I proceed to examine the evidence as to actual payment of the amount, it is necessary to find out, if there was any motive for payment of gratification. Ashok Sharma stated that he was employed as Surveyor in Dhar Sub-division of Divisional Ground Water Survey Unit No. 6, Khandwa, which was headed by the appellant. The appellant was his drawing and disbursing Officer. His wife Premlata Sharma got burn injuries on 9-10-1979 and succumbed to death on 3-11-1979. The police arrested him on 18-11-1979 and prosecuted him under section 302, Indian Penal Code. He was, however, acquitted by judgment dated 7-5-1980. He submitted three bills: (i) arrears bill of his pay on refixation for Rs. 4,035-60 p. (Ex. P. 8-A), forwarded by Dhar Office on 7-11-1979 by (Ex. P. 7-A), (ii) medical bill for Rs. 120/- (Ex. P. 22), forwarded by Dhar Office on 27-3-1980 by (Ex. P. 10-A), and (iii) arrears bill of pay during suspension from 1-12-1979 to 30-11-1980 for Rs. 2168.40 p. (Ex. P. 13-A), forwarded by Dhar Office along with letter dated 5-12-1980, (Ex. P. 14-A). There is no bill in respect of pay for the duration of earned leave. Memo. dated nil (Ex. P. 21) shows that M. A. Qureshi (PW. 4) recommended sanction of earned leave to Ashok Sharma for the period of 1-11-1979 to 17-11-1979 as applied for by him afresh through application dated nil (Ex. P. 4-A), forwarded by letter dated 18-11-1980 (Ex. P. 4-B). Earlier Ashok Sharma had applied and Qureshi had recommended for sanction of earned leave for 30 days w.e.f. 1-11-1979 to 30-11-1979. According to M. ...A. Qureshi this was rejected since the leave applied for included the suspension period from 18-11-1979 till 30-11-1979, vide (Ex. P. 11-A). His suspension was withdrawn by order dated 27-11-1980 (Ex. P. 12-A).

10. Ashok Sharma's wife was a teacher at Nagda in Government Service, under District Education Officer, Dhar. The appellant addressed a memo dated 10-11-1980 (Ex. P. 20-A) to D.E.O., enquiring whether she was eligible for medical treatment and its reimbursement from Education Department. This was required in connection with reimbursement of medical bill (claimed by Ashok Sharma). It appears that reply was not received till the laying of trap. Ashok Sharma, when questioned in Court, feigned his ignorance, if she was also entitled to reimbursement of her medical treatment. He knew that there was a clerk in Divisional Office incharge of receiving bills through dak, but he did not know who he was. He did not enquire even on 12-1-1981, when he visited Divisional Office, whether his bills had been received in the office. He showed complete ignorance about the procedure for clearing and passing of the bills. At last he admitted that Shyam Kumar Mishra (PW. 3) was the dealing clerk but he never enquired from him about those bills. He alleged making of 8 to 10 applications between May 1980 to March 1981 for early payment of his bills, through M. A. Qureshi. The prosecution failed to produce those applications. He also claimed to have made two applications to Superintending Engineer, Bhopal requesting him to reinstate him and order payment of the arrears. Unless he was reinstated, there was no question of payment of the bills. Even though the power to reinstate lay with the Superintending Engineer, Bhopal, yet he alleged forwarding of their copies to the appellant for necessary recommendation to Bhopal Office for early action. He denied knowledge if his bills were returned for corrections and submissions afresh.

11. M. A. Qureshi (PW. 4) stated that on 7-11-1979, he forwarded one bill for arrears of pay on refixation along with Ex.P. 7 and another bill, Ex.P 13, along with his letter Ex.P. 14, medical bill, Ex.P. 22, with his letter Ex.P. 10, application Ex.P. 11 for sanction of earned leave, with his letter Ex.P. 4-B, and application Ex.P. 5 on 9-1-1981 to the appellant. In cross-examination, he admitted that Ashok's first application for earned leave was rejected since he desired it for the suspension period also. In para 17 he admitted that the bill for arrears of pay on refixation was found to be in excess by one and half times. In para 18, he admitted that the bill for the suspension period included Rs. 303/- more than due. Further this bill could be passed for payment only on reinstatement. He admitted receipt of objections against medical bill. He also admitted that the bills used to be returned by the Divisional Office, within 2-3 days for their despatch by him. He also admitted that the accounts matters are dealt with by Divisional Accountant and Senior Accounts Clerk, who check and pass them. Even though he recollected to have visited Khandwa many times between May 1980 to January 1981, he admitted that he made no enquiry about Ashok's bills from Kailash Chand Agarwal and Shyam Kumar Mishra, (P.W. 3). He admitted that earned leave could not be sanctioned for the suspension period. He could not say if pay for the period of earned leave, also could not be sanctioned unless decision was taken about the suspension period.

12. Shyam Kumar Mishra (PW. 3), Senior Accounts Clerk stated that the bill (Ex. P. 7) could not be passed for payment since it was incorrect and was prepared on the refixation of pay by Qureshi without any authority. The bill was in his possession till its seizure. Ashok's pay was refixed as per new scale by the appellant on 9-12-1980 as per pay certificate (Ex. P. 9-A). He, so also the Accountant, had raised objections against his medical bill, since he was of the opinion that the claim ought to be made in the Education Department. When he received the bill, he was not aware, if Ashok's wife was alive or dead. When he learnt about her death, he demanded death certificate. The amount of this bill was finally paid in March 1981 on orders from the top. In bill (Ex. P. 13-A) for arrears of pay during suspension, the claim was for Rs. 2,168.40 p. but he passed it only for Rs. 1,865.05 p. and the payment was made on 7-3-1981 after sanction by the appellant. The Government pleader cross-examined this witness with permission of the Court. He denied the suggestion that he raised objections to the bills at the behest of the appellant. He forwarded the application for earned leave along with his note (Ex. P. 21) to the Divisional Accountant, who by his note dated 4-2-1981 directed that the application be put up along with his service book and reference book. This application was never put up before the appellant for orders. In para 36, he pointed out that two posts of L.D.C. and one post of U.D.C. were lying vacant in his office. On demand to fill these vacancies, there were orders to manage the work with the available staff. Therefore, he had to shoulder the entire load of work of the employees of five districts. He detailed the nature and quantum of work, he was required to do every month, in paras 36 and 37 of his statement. As regards bill for arrears of pay on refixation, he was searching the old vouchers from 1-1-1974, to be mentioned in the bill. Even though orders from Superintending Engineer were received to make the payment, yet that could only be made after completing the formalities. He also pointed out that the two bills forwarded by Qureshi, showed excess claims.

13. The prosecution case is that three bills, namely for arrears (Ex. P. 8-A), for Medical (Ex. P. 22) and for the pay during suspension (Ex. P. 13-A) and application for grant of earned leave (Ex. P 4-A) were pending in the Divisional Office. Ashok Sharma therefore approached the appellant with a request for their early finalisation. The learned trial Court in para 17 of the impugned judgment held that the appellant had already fixed Ashok's pay on new scale on 9-12-1980. Therefore, a fresh bill ought to have been submitted on that basis. Therefore, the bill (Ex. P.8-A) submitted prior to refixation could not be passed since the same was not on the basis of pay as refixed on 9-12-1980. The learned trial Court therefore rightly excluded bill (Ex. P. 8-A) from consideration.

14. The medical bill (Ex. P. 22) for Rs. 120/-, was forwarded by Dhar office on 27-3-1980. The prosecution also produced letter dated 10-11-1980 (Ex. P. 20-A) sent by the appellant to District Education Officer, Dhar for an enquiry if Premlata Sharma, a teacher under him, was eligible for medical reimbursement from his department. No exception can be taken nor any motive be imputed to the appellant for the delay caused by this enquiry. As drawing and disbursing officer, the appellant was duty bound to see that there was no duplication in payment of one and the same claim. The reply was awaited till the date of trap. Ashok Sharma evaded giving a positive reply if her medical bill could be reimbursed form the Education Department. Shyam Kumar Mishra stated that the objections against the medical bill raised by him and the Accountant were approved by the appellant. According to him the bill for reimbursement of the medical expenses of his wife should have been submitted in the department, she was employed. He had also demanded the death certificate from the complainant. Qureshi (PW. 4) admitted that he had received objections against the medical bill, but claimed that he had sent his reply. No such reply is on record. The appellant stated that the bill could not be cleared for want of reply from District Education Officer, Thus the medical bill remained pending with Shyam Kumar Mishra for reasons detailed above and not on account of the appellant's inaction. Even Ashok and Qureshi did not say that the enquiry through Ex.P. 20-A was dilatory and motivated.

15. Next bill (Ex. P. 13-A) related to difference in pay during suspension. Qureshi forwarded this bill to the Divisional Office on 5-12-1980 with his forwarding letter (Ex. P. 14-A). Shyam Kumar stated that the bill could not be passed untill his reinstatement. Qureshi also admits this. Further Ashok Sharma had earlier applied for sanction of earned leave from 1-1-1979 to 30-11-1979 inclusive of suspension period from 18-11-1979. The clearance of this bill, therefore, depended on orders of the Superintending Engineer. On receipt of that order, the amount of the bill was paid on 7-3-1981. Thus it is clear that the pendency of this bill also was not on account of any ill motive of the appellant, but was purely due to complications made by Ashok Kumar. Necessary guidance was sought for from the superior officer. No sooner it was received, the amount under the bill was paid on 7-3-1981.

16. As regards application for earned leave (Ex. P. 4-A), Shyam Kumar Mishra stated that the application was received in his office on 20-11-1980 and it remained pending with him till the date of trap, on account of heavy load of work. It. is thus clear that the appellant could not be imputed any knowledge as to the pendency of this application. The appellant's explanation is that his earlier application included the period of his suspension. Therefore, his office solicited guidance from the head office and the reply was awaited.

17. The prosecution also alleges that Ashok Sharma made repeated applications through Qureshi for passing of his bills. Qureshi does not speak on this count. There is only one application dated 8-1-1981 (Ex. P. 5-A) produced by the prosecution. Other applications are not on record. Ashok Sharma knew it very well that Shyam Kumar Mishra was the concerned Accounts Clerk who was supposed to deal with his bills. Surprisingly Ashok Sharma never made any enquiry from him. He also admitted that his bills could not be paid unless he was reinstated and that the authority to order his reinstatement is Superintending Engineer, Bhopal. That is why he addressed two applications to him and allegedly forwarded their copies to the appellant. He expected the appellant to recommend for early orders of his reinstatement. The material placed on record do not prove making of 'repeated' applications to the appellant. Even if applications were made, the bills remained pending with Shyam Kumar for the reasons detailed above. No motive could be imputed to the appellant, by sitting over those bills and application.

18. Ashok Sharma stated that he met the appellant on 12-1-1981, during his visit to Khandwa to deliver measurement books. These books had always been sent in the past through dak. The appellant, therefore, conveyed through his letter (Ex. D. 3) his disapproval to the sending of messenger. Qureshi admits receipt of this letter. The appellant's state of mind on 12-1-1981, is reflected by his letter (Ex. D. 3) and the appellant must have showered his wrath on Ashok, if at all he met the appellant on that date. In such a charged atmosphere, can it be believed that Ashok could have talked to the appellant for early payment of his bills and in reply the appellant placed the demand for bribe. Ashok Sharma knew it well that his bills were pending with Shyam Kumar Mishra. If at all Ashok Sharma wanted early payment of his bills, in common course of events, he was expected to remind Shyam Kumar for those bills which he never did.

19. The prosecution adduced no other evidence to corroborate the story demanding the bribe. According to Ashok, when he met the appellant and requested for early payment of the bills, he demanded bribe of Rs. 400/-. On Ashok's expression of inability, the appellant allowed him the option to pay the amount in two instalments. Since Ashok had no money then, he returned to Dhar without fulfilling the demand. He made no complaint against the appellant for demanding bribe from him. In cross-examination, Ashok admitted that on 12-1-1981, he first sent a chit for permission to meet the appellant, but when he went inside, instead of appellant, he found Shyam Kumar sitting in the office. If one goes by this statement, Ashok only met Shyam Kumar and not the appellant and in that event, there was no occasion to talk much less to arrive at an agreement for the alleged bribe. The doubt further arises by the fact that Ashok failed to lodge any report to superior authorities or even the Vigilance Board. He did not even disclose it to Qureshi. He tried to explain his conduct by stating that he hoped to receive the payment of all his bills or at least one or two of them by the end of February, even without any bribe. This explanation does not appeal to conscious and must be rejected as imaginary. I find that there is unexplained delay of one month and nineteen days in making of report to the Vigilance, which throws cloud of suspicion on the truthfulness of his complaint.

20. There is yet another clinching admission made by Ashok Sharma which miliates against his claim of meeting the appellant on 12-1-1981, After the trap, the appellant was succeeded by Shri Dasarathi. Some of his bills remained pending even thereafter. Therefore he addressed an application (Ex. D. 16) to Shri Dasarathi for early payment of his bills failing which he cautioned him with the following words:-

'Aur punah Shri Makhija kand jaisa koi apriya ghatna ghatne ki sambhawana hai.'

By these he threatened Dasarathi that the recurrence of Makhija (appellant) incident was possible. The threat to trap Dasarathi, in a case of bribe even without any demand of bribe by him clearly uncovers his animus and potential capacity to involve any innocent man like Dasarathi. This amply demonstrates Ashok Sharma's bent of mind to foist a false charge of bribery on any one whom he disapproved. The possibility of accusing the appellant similarly in a false case of bribery cannot be ruled out.

21. From the foregoing discussions, I am of the opinion that the prosecution failed to prove the circumstances necessitating the appellant to demand and Ashok to offer bribe. In the absence of any corroboration, it is not possible to accept Ashok Sharma's bald statement that on 12-1-1981 the appellant made a demand of any bribe. In Motiram Jaisingh Pawar v. The State of Maharashtra, (1985) 2 Crimes 18, it was held that in trap cases, when the initial part of the story of demand and negotiations is found to be untrustworthy, the testimony of the complainant can never be accepted. In a prosecution for offering or giving bribe, it is essential for the prosecution to prove that there was an agreement or understanding between the bribe giver and taker that the latter would be influenced on receipt of the agreed amount of bribe.

22. In Gulam Mohd. v. State of Gujarat, AIR 1980 SC 1558, the Supreme Court observed that in assessing the evidence of a witness, the entire background of the prosecution story should be kept in mind. Where, the complainant was found to have no regard for truth, had preferred a false complaint about the payment of bribe on 7-7-1972 and made the relevant complaint after 10 days of the alleged demand, it was held that all these could not be ignored.

23. Ashok Kumar faced trial on the charge of murdering his wife by burning her. True that he was acquitted in the trial, but in the absence of copy of judgment, it is not possible to know whether he was honourably acquitted or was let off on benefit of doubt. Thereafter Ashok made an application to the appellant for his reinstatement. In reply the appellant wanted some clarification. Instead of furnishing clarification, Ashok Sharma sent a letter (Ex. D. 15) to the appellant charging him of commiting of contempt of the Sessions Court. The appellant merely wanted to know if there was possiblity of an appeal. On 8-6-1981, he threatened Shri M. R. Dasarathi that if he failed to make payment of all his pending bills, he will be constrained to report the matter to the State and the Superintending Engineer. He further threatened him to involve in a case similar to that of Makhija. All these only demonstrate his criminal bent of mind to lay false accusations.

24. Ashok Sharma stated that Gulabrao peon came with the Audit Party to his office in the month of February 1981. He told Ashok Sharma that he was called by the appellant in connection with the payment of his arrears and he should meet him on 2-3-1981. In cross-examination, he admitted that the Audit Party reached Dhar between 23rd and 28th February 1981. Gulabrao (PW. 2) stated that on 23-2-1981 he went to Dhar with the Audit Party and after staying for a day, he left for Jhabua. During his stay at Dhar he had no talk with Ashok Sharma informing him that he was wanted by the appellant on 2-3-1981. In cross-examination, Ashok Sharma stated that he could not recollect when Gulabrao came to Dhar, but he met him between 23-2-1981 and 28-2-1981. Even after knowing that he was allegedly called, he did not report the matter to the Vigilance since he was hopeful to get the payment of his bills by 28-2-1981. When he failed to get the payments by 28th February, he lodged report (Ex. P. 1) on 1-3-1981. Thus Ashok Sharma's statement is not even corrobroted by Gulabrao. Even if he received any message, there is no satisfactory explanation for his inaction upto 1-3-1981 and lodging the report to the Vigilance only on that date. It is obvious that Ashok Sharma was gaining time to give a final shape to his plan and reported the matter, only when he had finalised it.

25. So far as the acceptance of gratification is concerned, the prosecution evidence too is far from satisfactory. The law relating to laying trap is well settled by now. In Raghbir Singh v. State of Punjab, AIR 1976 SC 91, the Supreme Court laid down that the officer laying the trap must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence. In Lachman Dass v. State of Punjab, AIR 1970 SC 450, it was observed that at least some panchas should overhear the conversation or to see something which they can report.

26. Inspector Bhanwar (PW. 9) stated that when the report (Ex. P. 1) was marked to him he along with Ashok Sharma, Deputy S.P. Nanawati (PW. 6) and some police constables, started from Indore at 3.00 A.M. on 2-3-1981 and reached Khandwa at about 9.00 A.M. Deputy Collector Shri Krishna Chopre (PW. 1) joined him there. One constable brought Vishwas Khirwarkar (PW. 5) as a Panch from the public. Ashok Sharma's report was read by the panchas. Ashok Sharma produced currency notes of Rs. 50/-, total Rs. 200/-. Phenolphthalein powder was applied to them. He instructed the panchas to overhear the conversation between Ashok Sharma and the appellant preceding the offer of bribe and on success, he will give signal by wiping his month with handkerchief. Ashok Sharma and Viswas Khirwarkar want on foot to the Divisional Office. They sent a chit to meet the appellant but they were told to wait since some officers were sitting with him. Therefore, both kept on strolling in the office. After some time the peon called Ashok Sharma to upstair in the room of the appellant. Viswas stayed back in the ground-floor only. After about 5 minutes, Ashok Sharma gave the necessary signal.

27. The Inspector, constables and panchas went upstairs into the appellant's chamber. Appellant's both the hands were washed in sodium carbonate solution which turned pink. On enquiry as to the whereabouts of the currency notes of bribe, the appellant pointed to his bushshirt's pocket. Mr. Chopre took out those notes and on verification, were found to tally with the numbers of in the preliminary panchnama. The pocket of bushshirt was also washed in sodium carbonate solution which turned into pink colour.

28. Viswas admitted that the Police Inspector had instructed him to accompany Ashok Sharma and hear the conversation preceding the passing of the currency notes. Despite that he did not go upstairs with Ashok Sharma, which he could not account for. He further denied hearing of any call-bell or the appellant's words calling Ashok Sharma. He denied portion A to A of Ex.D. 2. On being asked to repeat the exact words of Bhanwar of the question put to the appellant regarding the amount, the witness replied 'Where was the money and nothing more.' He denied the correctness to his previous statement portion B to B in Ex.D. 2.

29. Viswas Khirwarkar served in Rural Engineering Service, Indore. He came to Khandwa in the night i.e. intervening between 28th February and 1st March, 1981 and returned on Monday i.e. 2-3-1981. He had gone to collect his luggage and to meet his friends. When the police constable called him, he was aimlessly moving- about. He denied the suggestion that he was closely known to Ashok Sharma from before the incident. From the statement of this witness, it is clear that even though he was called to act as a panch and hear the conversation, he failed to do that. He remained sitting in the ground floor and went to the applellant's room only wheh the money had already been paid.

30. Deputy Collector Chopre (PW. 10) stated that he accompanied the trap party in a jeep and took his position outside the office near the jeep. At about 4.45, he saw Dy. S. P. Nanawati (PW. 6) proceeding to the appellant's room. He, therefore, just followed him. After the appellant's hands and Ashok Sharrna's hands were washed in the solution, on direction of the Inspector, he took out the four currency notes from the appellant's pocket. Their numbers tallied. They were kept in envelope and sealed. The shirt was also seized. Entire proceedings were jotted in panchnama (Ex. P. 3). He denied that the appellant told them that Ashok Sharma had repaid the loan only. Even this witness was instructed to hear the conversation and see the passing of the bribe as far as possible. The witness failed to do all that on the ground he was standing at a distance. Dy. S. P. Nanawati's statement is more or less the same.

31. Ashok Sharma stated that Khirwarkar was to remain in ground floor and he alone was to go upstairs to the appellant and after payment pass the signal to Khirwarkar. He denied that Khirwarkar was also to accompany him and hear the conversation. He denied if similar instructions were also given to Chopre Saheb. He admitted that the appellant's room had a curtain at its door and if any person stood on one side of that door, he could, not only overhear the conversation, but also avoid detection. Ashok Sharma's statement is contrary to Ex.P. 2 and oral statements of other witnesses. It is thus clear either he avoided Khirwarkar going upstairs, or Khirwarkar negligently omitted to go upstairs to witness the conversation and passing of money.

32. Learned counsel for the appellant argued that the statement of the accused in answer to the question 'Where have you kept the bribe money' put by Inspector Bhanwar, is inadmissible, being hit by section 162, Criminal Procedure Code and section 25 of the Evidence Act, in Dr. M.C. Sulkunte v. The State of Mysore, AIR 1971 SC 508, the trap was held to be part of investigation. Section 162 provides that no statements made by any person in the course of an investigation shall be used for any purpose during enquiry or trial in respect of any offence under investigation, except for the purpose of contradiction. The prohibition contained in section 162 relates to all statements made during the course of an investigation. It cannot be set at naught by the police officer by not himself recording the statement but having it in the form of a communication addressed by the person concerned to the police officer. Kaliram v. State of M.P., AIR 1973 SC 2773. In a case of bribery, the trap party recovered the currency notes which was recorded in the recovery memo. It was held that the statement of the accused recorded in the memo amounted to confession while in police custody and therefore the memo could not be used as evidence of any confession against the accused. See - Rajendra Kumar v. State, AIR 1966 All. 42 and Bajjanki Rajam v. State of Andhra Pradesh, AIR 1959 Andhra 333. I may also usefully refer to Ramkishan Mithanlal Sharma v. State of Bombay, (1955) 1 S.C.R. 908, wherein it was held that the evidence with regard to acceptance of bribe was inadmissible. In view of the legal position, it must be held that statements of the witnesses so also the Panchnama (Ex. P. 3) containing a question by Inspector Bhanwar as to the whereabouts of the bribe money and the reply of the accused that it was kept in his pocket amounts to confession before police and therefore inadmissible. The said statement also comes within the mischief of section 162, Criminal Procedure Code and therefore the question by the Police Inspector and answer given by the accused, must be excluded from consideration.

33. The foregoing narration of events shows that Khirwarkar was the only person called by the police to act as independent panch, but the facts and circumstances on record clearly show that he was really not an independent witness. Admittedly he was in Government sendee at Indore. Could it be just a co-incidence that he went to Khandwa simultaneously with the trap party? On a mere asking of a constable, Khirwarkar too readily available outside the railway station, agreed to join trap party. Even though he had to collect his luggage, and meet some of his friends, he was just roaming aimlessly near the railway station, only to be picked up as a panch. B. P. Khupse (PW. 8) stated in para 11 that Ashok Sharma and Viswas Khirwarkar are good freinds. From all these, it is not possible to accept him as an independent witness. This apart, he, like other members of the trap party, does not depose as to the conversation between Ashok Sharma and the appellant preceding the payment of the money. The learned trial Court concluded that Ashok Sharma is the sole eye-witness to the payment of bribe. In Major E.G. Barsay v. State of Bombay, AIR 1961 SC 1762, it was held that the complainant is an accomplice. Though a trap witness is not as approver, he is certainly an interested witness in the sense that he is interested to see that the trap laid by him succeeded. He could at least be equated with a partisan witness and it would not be advisable to rely upon his evidence without corroboration. The interested and partisan witnesses are concerned in the success of the trap. Their evidence must be tested in the same way as that of any interested witness and in proper case, the Court may look for independent corroboration for convicting the accused person. See - Darshan Lal v. The Delhi Administration, AIR 1974 SC 218.

34. Ashok Sharma's admission shows that there was ample space in front of appellant's office to keep oneself away from the appellant's sight and overhear the conversation. In spite of specific instructions, Khirwarkar failed to associate himself with Ashok Sharma. Ashok Sharma contradicted preliminary panchnama (Ex. P. 2) and stated that Khirwarkar was not to go to the appellant's room. Ashok Sharma's assertion must be rejected as false. It is not possible to accept that he forgot the instructions of the Inspector Bhanwar within such a short time. To me it appears that Ashok Sharma designately avoided to take Viswas Khirwarkar along with him. Even if he apprehended his detection, he could at least leave him in the appellant's room's door and overhear the conversation as far as possible. Ashok Sharma's conduct in avoiding Khirwarkar creates a doubt that he did not favour him to hear his conversation with the appellant and was only interested in permitting him to witness the recovery of notes at the fag end.

35. It was argued by the learned Government Advocate that the appellant admitted the recovery of money from his pocket, and therefore, the infirmities pointed out in the prosecution evidence deserve to be overlooked since the prosecution is entitled to rely on the prsumption under section 4(1) of the Act that the appellant accepted the gratification for the purposes mentioned in section 161, Indian Penal Code, unless the contrary was proved by him.

36. The argument cannot be accepted. A perusal of section 4 of the Act shows that the presumption is not available to the prosecution for proving a charge under section 5(2) with reference to clause (d) of section 5(1) of the Act. Further if the story of demand of bribe and its payment is not established, the rule of presumption engrafted in section 4(1) cannot be made use of for convicting the appellant, Sita Ram v. State of Rajasthan, AIR 1975 SC 1432. In Suraj Mal v. The State (Delhi Administration), AIR 1979 SC 1408, it was said that mere recovery of money divorced from the circumstances, under which it was paid was not sufficient when the substantive evidence in the case was not reliable to prove payment of the bribe or to show that the accused voluntarily accepted the money. In Banshi Lal Yadav v. State of Bihar, AIR 1981 SC 1235, the Court held that before presumption can be raised, the burden is on the prosecution to prove that the accused accepted any gratification, for himself. Where the accused stated that the notes were thrust in his pocket, the element of voluntary acceptance of the bribr was missing, and therefore, the statement by itself, without anything more, is not sufficient to satisfy the necessary ingredients of section 4(1) of the Act so as to be able to raise the presumption.

37. In Rabindra Kumar Dey v. State of Orissa, AIR 1977 SC 170, three cardinal principles of criminal jurisprudence were pointed out:-

'(1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity or the defence version while proving its case;

(2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and

(3) that the onus of the prosecution never shifts.'

Thus, the burden lay on the prosecution to prove that the appellant accepted illegal gratification from Ashok Sharma. The prosecution could lead evidence duly corroborated by independent witnesses to prove the conversation between Ashok Kumar and the appellant immediately before the money changed hands. The evidence on record to prove demand of bribe on 12-1-1981 and its acceptance by the appellant on 2-3-1981 does not inspire confidence. Ashok Kumar Sharma is an accomplice. His story is prima facie suspect. His testimony, without corroboration in material particulars, canno. be accepted. The appellant's plea is that Ashok paid the money to repay the loan. In other words, the appellant denied acceptance of the amount as bribe. The presumption under section 4(1) of the Act cannot be drawn on mere proof of recovery of the money. Even otherwise, it looks quite unnatural rather improbable that a highly paid officer of the appellant's rank would demand bribe, from his own subordinate getting a meagre salary of Rs. 130/- P.M. The assumption to the contrary is not borne out from the record.

38. Even if for argument's sake, I assume that the prosecution has discharged its onus and therefore, the presumption under section 4(1) of the Act is available to the prosecution unless the contrary is proved, I am of the opinion that the appellant has established his defence by preponderance of probabilities from the admission of the prosecution withnesses itself. In V.D. Jhingan v. State of U. P., AIR 1966 SC 1762, it was held that the burden of proof lying upon the accused under section 4(1) of the Act will be satisfied if he establishes his case by preponderance of probability as is done by a party in civil proceeding. It is not necessary that he should establish his case by the test of proof beyond reasonable doubt. In Chaturdas Bhagwandas Patel v. The State of Gujarat, AIR 1976 SC 1497, it was pointed out that the burden which rests on the accused to displace the presumption is not as onerous as that cast on the prosecution to prove its case. Nevertheless, this burden can be discharged by bringing on record evidence, circumstantial or direct, which establishes with the reasonable probability, that the money was accepted by the accused, other than as a motive or reward.

39. My attention was drawn to the statement of Prem Giri (PW. 7), who was the appellant's peon. Ashok Sharma handed over a chit to him for permission from the appellant to meet him. After permission Premgiri called Ashok Sharma. When Ashok Sharma met the appellant, he heard him begging excuse from the appellant for the delay in repaying the loan. In further cross-examination, he stated that Ashok Sharma had taken loan sometime in 1980-81. Evea the appellant had informed him that Ashok had taken loan from him, because he was facing a criminal trial and was in acute financial crisis, P.P. Khupse (PW. 8) stated that during his suspension, Ashok Sharma had told him that he intended to meet the appellant for some loan. When he returned, the witness again enquired and Ashok Sharma replied that his meeting the appellant was a success. Even on 2-3-1981, before trap when he enquired from Ashok Sharma as to the purpose of his visit to the office, he had informed him that he wanted to repay the loan advanced to him. It is true that the prosecution declared these witnesses hostile, but merely on that count their statements cannot be brushed aside. The appellant disclosed his defence from the very inception. Ashok Sharma used to get Rs. 130/- P.M. During suspension he was entitled to some allowance only. There was also an order (Ex. D. 13) for recovery against him of excess amount drawn by him. His father is a homoeopathic practitioner at Indore. Ashok Sharma had engaged a counsel from Indore to defend him at Dhar. His explanation that he did not pay any fee and that the travelling expenses were also borne by the counsel from his pocket cannot be believed. One can easily visualise the financial crisis, which he must have faced in those days. It is quite possible that he may have raised loan to overcome the crisis or at least to arrange his defence. The defence is thus prbbablised from the statements of the prosecution witnesses and the circumstances in which Ashok Sharma had landed.

40. Learned counsel for the appellant also argued that Inspector Bhanwar, having laid the trap, was not competent to investigate the case. He relied on Bhagwan Singh v. State of Rajasthan, AIR 1976 SC 985, and Bhagwandas Pyarelal v. State of U.P., AIR 1968 All. 290. Since I have rejected the prosecution case, it is not necessary to examine this point in the present appeal.

41. Before parting with the judgment, I would like to mention one aspect of the case, which, to my mind, is the root cause for the episode. The appellant was the superior officer while M.A. Qureshi (PW. 4) was under him as Assistant Engineer. Their relations were so much strained. One can see through that Qureshi was in a state of abnormal mental stress which is evident from correspondence, Exs. D.4, D.5, D.8, D.9, D.10, D.11, D.12 and D.13. Qureshi had always been offensive in his dealings with the appellant. Qureshi evaded answer to the question if he was rated as the most indisciplined person by the Superintending Engineer of which information was also forwarded to the appellant. Ashok Sharma, after his reinstatement, was working under Qureshi. On account of the aforesaid bitter relations, it appears that Qureshi and Ashok Sharma both conspired to involve the appellant.

42. The beginning of the plan can be traced to 12-1-1981, when Ashok Sharma was deputed by Qureshi to carry the measurement books to the appellant's office. On the following day, i.e. on 13-1-1981, the appellant wrote a letter to Qureshi taking strong exception to the sending of measurement books through special messenger when that could have been done by post. The appellant also found most of the measurement books had blank pages. Therefore, he returned those measurement books to him with the direction to send them only after the pages are filled. Ashok Sharma made use of his Visit to appellant's office on 12-1-1981 as the date for entering into an agreement for the alleged bribe. The falsity of the agreement is exposed by the fact that no date was settled for the payment. He also failed to lodge any report anywhere much less to the Vigilance. His total silence till 1-3-1981 clearly shows that he was gaining time to give shape to their plan. Qureshi made Ashok Sharma a tool to avenge his feelings against the appellant.

43. The defence documents do reveal that the appellant had been a strict officer. He wanted to enforce discipline, and efficiency in the sub-division specially in Qureshi. The appellant wanted Qureshi to avoid wasteful expenditures of Government money. From all these, the possibility cannot be ruled out that the case is an outcome of conspiracy to involve the appellant in troubles or was motivated by some malice of his subordinates.

44. The learned trial Court accepted the prosecution evidence on its face value without applying his judicial mind to shift the evidence in the light of circumstances which prevailed in the appellant's office.

45. In view of the foregoing discussions, the appeal is allowed. The convictions and sentences passed on the appellant, by the learned trial Court, are hereby set aside and the appellant is acquitted of both the charges.