Ulfat Rai Arya Vs. State of Rajasthan - Court Judgment

SooperKanoon Citationsooperkanoon.com/770243
SubjectCriminal
CourtRajasthan High Court
Decided OnDec-07-2006
Judge Jitendra Ray Goyal, J.
Reported in2007CriLJ1846
AppellantUlfat Rai Arya
RespondentState of Rajasthan
DispositionAppeal allowed
Cases Referred and T. Shankar Prasad v. State of A.P.
Excerpt:
- - 5. it was strenuously argued by learned counsel for the appellant that prosecution utterly failed to make out a case under section 161, ipc and section 5(l)(d) read with section 5(2) of the act. it is further submitted that the trial court committed grave error of law in drawing the presumption under section 4(1) of the act specially when the prosecution could not succeed in discharging the allegations levelled against him, otherwise also the appellant has succeeded to rebut the presumption from the prosecution evidence as well as from his defence evidence. recorded in (2005) 10 scc 233. 6. learned special public prosecutor on the other hand supported the impugned judgment of the court below and submitted that the approach of the learned special judge was perfectly legal and justified and there is ample evidence on record to show that the appellant abused his position, demanded the bribe to exonerate the decoy tara chand from the departmental enquiry which was being conducted by him and accepted rs, 150/- in his office as illegal gratification. if the condition envisaged in the former part of the section is satisfied. in suraj mai's case (1979 cri lj 1087) (supra) it has been observed that in a case of bribery, mere recovery of 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. 16 sugan singh gogawat clearly stated in his court statement that on asking the accused appellant he came out with an explanation that he received the amount which he earlier gave in advance to t. 21. for the reasons discussed above, the conviction of the accused is bad and cannot be maintained.jitendra ray goyal, j.1. this is an appeal against the judgment dated 24-6-1993 passed by special judge, cbi cases, jaipur whereby the accused appellant was convicted and sentenced as under:under section 161. ipc :- six months rigorous imprisonment and fine of rs. 100/- in default of payment of fine to further undergo 15 days rigorous imprisonment.under section 5(1)(d) read with section 5(2) of the prevention of corruption act. 1947 :- one year rigorous imprisonment and fine of rs. 500/-, in default of payment of fine to further undergo two months rigorous imprisonment.2. briefly stated the facts of the case are that the appellant was sub-divisional officer, telegraph department, sikar and was conducting an enquiry against sh. tara chand deothia, office assistant, telegraphs of det, sikar who was facing a departmental enquiry under section 16 of ccs (conduct) rules for flouting the orders of his superiors. it is alleged that the appellant on 14/15-2-1985 demanded a bribe of rs. 200/ - from sh. tara chand deothia to decide the department enquiry in his favour. during the conversation demand was reduced to rs. 150/- from rs. 200/-. on 19-2-1985 once again the appellant pressed for payment of bribe amount failing which he threatened him to punish by withholding two increments in his enquiry. the complainant tara chand deothia was not inclined to pay the bribe money, so he approached to superintendent of police, central bureau of investigation (in short cbi) and on report ex. p1 trap was laid by the cbi authorities and on 22-2-1985 the appellant was caught red handed by the cbi accepting the bribe of rs. 150/- while sitting in his office. the memo of trap proceedings was drawn at the spot and the demanded money was recovered vide recovery memo ex. p3. on conclusion of the investigation charge-sheet was filed in the court of special judge, cbi (rajasthan), jaipur. learned special judge, cbi framed the charges under section 161, ipc & 5(l)(d) read with section 5(2) of the act, 1947 (in short the act) which was denied by the appellant and he claimed trial. prosecution examined as many as 18 witnesses in support of its case. statement under section 313 of the code of criminal procedure was recorded wherein the appellant stated that he had never demanded any bribe but sh. tara chand deothia returned the amount of rs. 150/- which was earlier taken by him. three witnesses including the appellant himself were examined in defence. the trial judge after hearing for arguments convicted and sentenced the appellant as stated above.3. aggrieved by the judgment of the special judge, cbi jaipur this appeal has been preferred by the appellant.4. heard learned counsel for the appellant, learned special public prosecutor and carefully perused the record.5. it was strenuously argued by learned counsel for the appellant that prosecution utterly failed to make out a case under section 161, ipc and section 5(l)(d) read with section 5(2) of the act. it was also argued that the appellant was not required to prove his defence to the hilt but he can discharge his burden to rebut the presumption by preponderance of probability in his favour. learned special judge ignored the explanation of the appellant which he gave at the time of the trap to dy. s. p. cbi, p.w. 16 sugan singh which was corroborated by the prosecution witnesses r. k. sehgal (p.w. 2) and ranveer singh solanki (p.w. 3) who were appointed as motbirs to witness the incident and also by other witness h. p. vijarnia (p. w. 4) who was admittedly present in the office of the appellant. it was further contended that decoy tara chand deothia was a man of dubious character and used to make false and frivolous complaints against his superiors and few months before the incident he lodged a false fir with the intention to implicate the appellant in which after investigation police filed final negative report. it was also submitted that there was also inimical relations between appellant and decoy tara chand deothia who quarrelled with the son of appellant. it was also submitted that this fact is also established from the evidence of investigating officer, k. s. joshi (p. w. 17) that the complainant knew that decision in the departmental enquiry is going against him which also proves the defence case that after knowing the result of the enquiry the decoy was engaged in ugly design to involve the appellant in a false trap case. it is further submitted that the trial court committed grave error of law in drawing the presumption under section 4(1) of the act specially when the prosecution could not succeed in discharging the allegations levelled against him, otherwise also the appellant has succeeded to rebut the presumption from the prosecution evidence as well as from his defence evidence. reliance has been placed on the judgments m. p. gupta v. state of rajasthan reported in air 1974 sc 773 : 1974 cri lj 509, gulam mahmood a. malek v. the state of gujarat reported in : 1980crilj1096 surat mal v. the state (delhi administration) reported in : 1979crilj1087 , kesaram v. state of rajasthan reported in rlw 2000 (1) raj page 125, and duraisami v. state of t.n. recorded in (2005) 10 scc 233.6. learned special public prosecutor on the other hand supported the impugned judgment of the court below and submitted that the approach of the learned special judge was perfectly legal and justified and there is ample evidence on record to show that the appellant abused his position, demanded the bribe to exonerate the decoy tara chand from the departmental enquiry which was being conducted by him and accepted rs, 150/- in his office as illegal gratification. it is also submitted that the trial court correctly appreciated the evidence and rightly taken the presumption against him which is provided under section 4 (1) of the act and section 114 of the evidence act. reliance has been placed on the judgments m. narsinga rao v. state of a.p. reported in : 2001crilj515 and t. shankar prasad v. state of a.p. reported in : 2004crilj884 .7. i have taken the rival contentions into consideration. before dealing with the evidence it would be appropriate to have a look on the provisions of legal presumption provided under section 4(1) of the act around which the arguments were advanced by the parties which reads as under:section 4(1):- presumption where public servant accepts gratification other than legal remuneration. (1) where in any trial or an offence punishable under section 161 of section 165 of the indian penal code or of an offence referred to in clause (a) or clause (b) of sub-section (1) of section 5 of this act punishable under sub-section (2) thereof, it is proved that a accused person has accepted or obtained, or has agreed to accept . or attempted to obtain, for himself or for any other person 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 things, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be without consideration or for a consideration which he knows to be inadequate.8. a plain reading of the above provision makes it clear that when the accused accepted the gratification, the presumption immediately comes into play that he accepted it as a motive or reward such as is mentioned in section 161, ipc. hon'ble the apex court in the case of t. shankar prasad's case, (2004 cri lj 884) (supra) held that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or for bearing to do any official act etc. if the condition envisaged in the former part of the section is satisfied. the only condition for drawing such a legal presumption under section 4 of the act is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. in m. narsinga rao's case (2001 cri lj 515) (supra) it was held that where the receipt of gratification was proved, the court was under a legal obligation to presume that such gratification was accepted as a reward for doing the public duty.9. no doubt according to the provisions of section 4 (1) of the act, such presumption is rebuttable and the accused can rebut this presumption by showing that the gratification received by him was not a motive or reward as is alleged against him by the prosecution.10. in gulam mahmood a. malek's case : 1980crilj1096 (supra) it was held that while appreciating the evidence the background of the case should not be lost sight of it was also laid down that past conduct of the complainant should not be ignored. in suraj mai's case (1979 cri lj 1087) (supra) it has been observed that in a case of bribery, mere recovery of 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 kesaram's case (supra) it has been held that when accused at the earliest disclosed the fact of receiving rs. 100/- against the money due in the brother of the complainant and the defence version has been supported by the prosecution witnesses, the appellant has succeeded in probising the defence. in duraisami's case (supra), it was held that when the explanation given by the accused is found to be true and genuine then case set up by the defence has to be accepted.11. in the instant case, the accused has admitted that he has received rs. 150/- from p.w. 1 t. c. deothia and now as soon as it is admitted that the accused has accepted the money, the presumption under section 4(1) of the act springs up against him and now the burden shifts on him to prove that the gratification received by him was not a motive or reward. he can discharge this burden by leading evidence in defence or by pointing out the material in the prosecution evidence or otherwise also, it was held by their lordships of hon'ble the apex court in m. p. gupta's case (1974 cri lj 509) (supra) that the accused can establish his case by preponderance of probability that is to say, he need not prove his case beyond reasonable doubt.12. now the question which remains for consideration in the instant case is whether the accused has succeeded in probising the defence ?13. the defence of the appellant was that the decoy t. c. deothia took a loan of rs. 194/- from him and out of which he returned rs. 44/- in the morning of 22-2-1985 and rest amount of rs. 150/- he returned in the evening as promised by him.14. in this regard, it is not disputed that the accused disclosed the defence immediately at the spot when he was confronted by the dy. s. p., cbi p.w. 16 sugan singh. the trapping officer p.w. 16 sugan singh gogawat clearly stated in his court statement that on asking the accused appellant he came out with an explanation that he received the amount which he earlier gave in advance to t.c. deothia. the appellant further gave him the explanation that rs, 194/- were advanced to the complainant and out of which rs. 44/- were paid by him earlier in the morning and for the remaining amount of rs. 150/- he promised to pay by the evening which t. c. deothia paid to him. this explanation also finds place in the recovery memo ex. p. 3 which was prepared at the spot by trapping officer p.w. 16, sugan singh p.w. 1. t. c. deothia also admitted in his cross-examination that on asking by trapping officer sh. gogawat the accused stated that this money was outstanding against deothia, he did not accept any bribe, though he further stated that the explanation given by accused was false. likewise the prosecution witnesses p.w. 2 r. k. sehgal and p.w. 3 r. n. solanki who were appointed as panch witnesses to witness the trap and one independent witness p.w. 4, h. p. vijarnia who was sitting besides the accused appellant at the time of the incident also corroborated about the explanation given by the appellant at the time of his trap. therefore, from the evidence of the prosecution witnesses, it appears that explanation given by the appellant was prompt and strenuous and it was not an afterthought.15. now the question comes for consideration is that in what manner the decoy p.w. 1 t. c. deothia offered the gratification to the appellant ?16. the decoy p.w. 1 t. c. deothia admitted in his statement that he gave the money by saying (vernacular matter omitted.,..ed.) p. w. 4 h, p. vijarnia also stated in the same terms that sh. deothia gave rupees by saying (vernacular matter omitted....ed.). apart from this, one baba mahaveer das who was also sitting besides the appellant has not been produced by the prosecution as a witness and his presence was admitted by the decoy p.w, 1 t. c. deothia and the trapping officer p.w. 16 sugan singh and it was also admitted by the trapping officer that baba mahaveer das insisted him to write that (vernacular matter omitted... .ed.) '.17. in view of the above evidence, it appears that decoy p.w. 1 t. c. deothia offered the money to the accused appellant giving an impression that he is returning the money due on him. so far demand of bribe is concerned the complainant p.w. 1 t. c. deothia is the sole witness in this regard. according to him, the appellant sh. arya on 14/15-2-1985 demanded the bribe of rs. 200/- for settling the enquiry in his favour which was subsequently reduced to rs. 150/- and also reminded on 19-2-1985 and threatened that in case demand is not, fulfilled two grade increments will be stopped as punishment. in my considered view the allegations made by the complainant decoy p.w. 1 t. c. deothia became suspicious because of the following reasons:(i) when demand of illegal gratification was raised by the appellant on 14/15-3-1985 and thereafter on 19-2-1985 the complainant did not make any complaint immediately to cbi officers or his superiors and first of all he made a complaint to the superintendent of police. cbi on 22-2-3 935 after knowing about the finding of punishment of two grade increments in his enquiry which is proved by the statement of the investigating officer p.w. 17 k. s. joshi who stated that sh. t. c. deothia knew about the finding in the enquiry that it is against him. therefore, this possibility cannot be ruled out that after knowing the result in the enquiry from his own sources he made the complaint purposefully so that the judgment in the enquiry may not be delivered.(ii) this fact has also come out from the prosecution evidence that the complainant p.w. 1 t. c. deothia was having enemical relations with the accused appellant arya p.w. 15 d. s. dabose, former sdot stated that he heard that the complainant t, c, deothia quarreled with the sons of the appellant arya.(iii) it has also been proved and even admitted by p.w. 1 t. c. deothia that he was transferred and relieved immediately from one branch to another at the instance of the appellant on 7-2-1985 i.e. few days before this incident.(iv) it has also been proved from the evidence of the complainant p.w. 1 t.c. deothia and other prosecution witnesses that sh. deothia lodged one fir ex. d3 on 8-2-1985 with regard to missing of indian postal orders alleging that one key of the almirah was kept by the appellant and in this fir wherein indirect allegations have been levelled against the appellant, after investigation police gave final report negative since the indian postal orders were found in the same almirah.(v) it has also been admitted by the complainant p.w.i.t.c. deothia that he made a complaint against sdot. pilani where he worked for the period july 1081 to april, 1983and there were also some complaints against him for drawing money from the money order of some another person which also throws light on the conduct and antecedents of the complainant.18. in these circumstances when few days earlier complainant tried to implicate the appellant in a false police case they were having strained relations and the complainant was transferred and relieved immediately at the instance of the appellant, it is not believable that the appellant shall demand rs. 200/ or rs. 150/- as bride for exonerating the complainant from the departmental enquiry.19. in the view of the matter as discussed above, the sole testimony of the decoy p.w. i. t. c. deothia cannot be believed in regard to the demand of bribe.20. in view of what has been discussed above, it can be safely stated that the accused has been successful to satisfactorily rebut the presumption arising against him under section 4(1) of the act. it appears that p.w. 1 t. c. deothia got the trap arranged to give a went to his annoyance and prevent the appellant in pronouncing the order which had finally been prepared by the appellant by which two grade increments of the decoy t. c. deothia were stopped. also viewed in this perspective the defence version appears to be plausible, reasonable and logical that the accused accepted the money under the impression that p.w. 1 t. c. deothia was returning the money which was earlier advanced to him.21. for the reasons discussed above, the conviction of the accused is bad and cannot be maintained.22. in the result, the appeal of the appellant ulfat rai arya is allowed. his conviction and sentence under section 161, ipc and section 5(l)(d) read with section 5(2) of the act are set aside and he is acquitted. he is already on bail and need not surrender. his hail bonds shall stand cancelled.
Judgment:

Jitendra Ray Goyal, J.

1. This is an appeal against the judgment dated 24-6-1993 passed by Special Judge, CBI Cases, Jaipur whereby the accused appellant was convicted and sentenced as under:

Under Section 161. IPC :- Six months rigorous imprisonment and fine of Rs. 100/- in default of payment of fine to further undergo 15 days rigorous imprisonment.

Under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. 1947 :- One year rigorous imprisonment and fine of Rs. 500/-, in default of payment of fine to further undergo two months rigorous imprisonment.

2. Briefly stated the facts of the case are that the appellant was Sub-Divisional Officer, Telegraph Department, Sikar and was conducting an enquiry against Sh. Tara Chand Deothia, Office Assistant, Telegraphs of DET, Sikar who was facing a departmental enquiry under Section 16 of CCS (Conduct) Rules for flouting the orders of his superiors. It is alleged that the appellant on 14/15-2-1985 demanded a bribe of Rs. 200/ - from Sh. Tara Chand Deothia to decide the department enquiry in his favour. During the conversation demand was reduced to Rs. 150/- from Rs. 200/-. On 19-2-1985 once again the appellant pressed for payment of bribe amount failing which he threatened him to punish by withholding two increments in his enquiry. The complainant Tara Chand Deothia was not inclined to pay the bribe money, so he approached to Superintendent of Police, Central Bureau of Investigation (in short CBI) and on report Ex. P1 trap was laid by the CBI Authorities and on 22-2-1985 the appellant was caught red handed by the CBI accepting the bribe of Rs. 150/- while sitting in his office. The memo of trap proceedings was drawn at the spot and the demanded money was recovered vide recovery memo Ex. P3. On conclusion of the investigation charge-sheet was filed in the Court of Special Judge, CBI (Rajasthan), Jaipur. Learned Special Judge, CBI framed the charges under Section 161, IPC & 5(l)(d) read with Section 5(2) of the Act, 1947 (in short the Act) which was denied by the appellant and he claimed trial. Prosecution examined as many as 18 witnesses in support of its case. Statement under Section 313 of the Code of Criminal Procedure was recorded wherein the appellant stated that he had never demanded any bribe but Sh. Tara Chand Deothia returned the amount of Rs. 150/- which was earlier taken by him. Three witnesses including the appellant himself were examined in defence. The trial Judge after hearing for arguments convicted and sentenced the appellant as stated above.

3. Aggrieved by the judgment of the Special Judge, CBI Jaipur this appeal has been preferred by the appellant.

4. Heard learned Counsel for the appellant, learned Special Public Prosecutor and carefully perused the record.

5. It was strenuously argued by learned Counsel for the appellant that prosecution utterly failed to make out a case under Section 161, IPC and Section 5(l)(d) read with Section 5(2) of the Act. It was also argued that the appellant was not required to prove his defence to the hilt but he can discharge his burden to rebut the presumption by preponderance of probability in his favour. Learned Special Judge ignored the explanation of the appellant which he gave at the time of the trap to Dy. S. P. CBI, P.W. 16 Sugan Singh which was corroborated by the prosecution witnesses R. K. Sehgal (P.W. 2) and Ranveer Singh Solanki (P.W. 3) who were appointed as Motbirs to witness the incident and also by other witness H. P. Vijarnia (P. W. 4) who was admittedly present in the office of the appellant. It was further contended that decoy Tara Chand Deothia was a man of dubious character and used to make false and frivolous complaints against his superiors and few months before the incident he lodged a false FIR with the intention to implicate the appellant in which after investigation police filed final negative report. It was also submitted that there was also inimical relations between appellant and decoy Tara Chand Deothia who quarrelled with the son of appellant. It was also submitted that this fact is also established from the evidence of investigating Officer, K. S. Joshi (P. W. 17) that the complainant knew that decision in the departmental enquiry is going against him which also proves the defence case that after knowing the result of the enquiry the decoy was engaged in ugly design to involve the appellant in a false trap case. It is further submitted that the trial Court committed grave error of law in drawing the presumption under Section 4(1) of the Act specially when the prosecution could not succeed in discharging the allegations levelled against him, otherwise also the appellant has succeeded to rebut the presumption from the prosecution evidence as well as from his defence evidence. Reliance has been placed on the judgments M. P. Gupta v. State of Rajasthan reported in AIR 1974 SC 773 : 1974 Cri LJ 509, Gulam Mahmood A. Malek v. The State of Gujarat reported in : 1980CriLJ1096 Surat Mal v. The State (Delhi Administration) reported in : 1979CriLJ1087 , Kesaram v. State of Rajasthan reported in RLW 2000 (1) Raj page 125, and Duraisami v. State of T.N. recorded in (2005) 10 SCC 233.

6. Learned Special Public Prosecutor on the other hand supported the impugned judgment of the Court below and submitted that the approach of the learned Special Judge was perfectly legal and justified and there is ample evidence on record to show that the appellant abused his position, demanded the bribe to exonerate the decoy Tara Chand from the departmental enquiry which was being conducted by him and accepted Rs, 150/- in his office as illegal gratification. It is also submitted that the trial Court correctly appreciated the evidence and rightly taken the presumption against him which is provided under Section 4 (1) of the Act and Section 114 of the Evidence Act. Reliance has been placed on the judgments M. Narsinga Rao v. State of A.P. reported in : 2001CriLJ515 and T. Shankar Prasad v. State of A.P. reported in : 2004CriLJ884 .

7. I have taken the rival contentions into consideration. Before dealing with the evidence it would be appropriate to have a look on the provisions of legal presumption provided under Section 4(1) of the Act around which the arguments were advanced by the parties which reads as under:

Section 4(1):- Presumption where public servant accepts gratification other than legal remuneration. (1) Where in any trial or an offence punishable under Section 161 of Section 165 of the Indian Penal Code or of an offence referred to in Clause (a) or Clause (b) of Sub-section (1) of Section 5 of this Act punishable under Sub-section (2) thereof, it is proved that a accused person has accepted or obtained, or has agreed to accept . or attempted to obtain, for himself or for any other person 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 things, as the case may be, as a motive or reward such as is mentioned in the said Section 161, or, as the case may be without consideration or for a consideration which he knows to be inadequate.

8. A plain reading of the above provision makes it clear that when the accused accepted the gratification, the presumption immediately comes into play that he accepted it as a motive or reward such as is mentioned in Section 161, IPC. Hon'ble the Apex Court in the case of T. Shankar Prasad's case, (2004 Cri LJ 884) (supra) held that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or for bearing to do any official act etc. if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 4 of the Act is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. In M. Narsinga Rao's case (2001 Cri LJ 515) (supra) it was held that where the receipt of gratification was proved, the Court was under a legal obligation to presume that such gratification was accepted as a reward for doing the public duty.

9. No doubt according to the provisions of Section 4 (1) of the Act, such presumption is rebuttable and the accused can rebut this presumption by showing that the gratification received by him was not a motive or reward as is alleged against him by the prosecution.

10. In Gulam Mahmood A. Malek's case : 1980CriLJ1096 (supra) it was held that while appreciating the evidence the background of the case should not be lost sight of it was also laid down that past conduct of the complainant should not be ignored. In Suraj Mai's case (1979 Cri LJ 1087) (supra) it has been observed that in a case of bribery, mere recovery of 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 Kesaram's case (supra) it has been held that when accused at the earliest disclosed the fact of receiving Rs. 100/- against the money due in the brother of the complainant and the defence version has been supported by the prosecution witnesses, the appellant has succeeded in probising the defence. In Duraisami's case (supra), it was held that when the explanation given by the accused is found to be true and genuine then case set up by the defence has to be accepted.

11. In the instant case, the accused has admitted that he has received Rs. 150/- from P.W. 1 T. C. Deothia and now as soon as it is admitted that the accused has accepted the money, the presumption under Section 4(1) of the Act springs up against him and now the burden shifts on him to prove that the gratification received by him was not a motive or reward. He can discharge this burden by leading evidence in defence or by pointing out the material in the prosecution evidence or otherwise also, it was held by their Lordships of Hon'ble the Apex Court in M. P. Gupta's case (1974 Cri LJ 509) (supra) that the accused can establish his case by preponderance of probability that is to say, he need not prove his case beyond reasonable doubt.

12. Now the question which remains for consideration in the instant case is whether the accused has succeeded in probising the defence ?

13. The defence of the appellant was that the decoy T. C. Deothia took a loan of Rs. 194/- from him and out of which he returned Rs. 44/- in the morning of 22-2-1985 and rest amount of Rs. 150/- he returned in the evening as promised by him.

14. In this regard, it is not disputed that the accused disclosed the defence immediately at the spot when he was confronted by the Dy. S. P., CBI P.W. 16 Sugan Singh. The Trapping Officer P.W. 16 Sugan Singh Gogawat clearly stated in his Court statement that on asking the accused appellant he came out with an explanation that he received the amount which he earlier gave in advance to T.C. Deothia. The appellant further gave him the explanation that Rs, 194/- were advanced to the complainant and out of which Rs. 44/- were paid by him earlier in the morning and for the remaining amount of Rs. 150/- he promised to pay by the evening which T. C. Deothia paid to him. This explanation also finds place in the recovery memo Ex. P. 3 which was prepared at the spot by trapping officer P.W. 16, Sugan Singh P.W. 1. T. C. Deothia also admitted in his cross-examination that on asking by trapping officer Sh. Gogawat the accused stated that this money was outstanding against Deothia, he did not accept any bribe, Though he further stated that the explanation given by accused was false. Likewise the prosecution witnesses P.W. 2 R. K. Sehgal and P.W. 3 R. N. Solanki who were appointed as Panch witnesses to witness the trap and one independent witness P.W. 4, H. P. Vijarnia who was sitting besides the accused appellant at the time of the incident also corroborated about the explanation given by the appellant at the time of his trap. Therefore, from the evidence of the prosecution witnesses, it appears that explanation given by the appellant was prompt and strenuous and it was not an afterthought.

15. Now the question comes for consideration is that in what manner the decoy P.W. 1 T. C. Deothia offered the gratification to the appellant ?

16. The decoy P.W. 1 T. C. Deothia admitted in his statement that he gave the money by saying (Vernacular matter omitted.,..Ed.) P. W. 4 H, P. Vijarnia also stated in the same terms that Sh. Deothia gave rupees by saying (Vernacular matter omitted....Ed.). Apart from this, one Baba Mahaveer Das who was also sitting besides the appellant has not been produced by the prosecution as a witness and his presence was admitted by the decoy P.W, 1 T. C. Deothia and the trapping officer P.W. 16 Sugan Singh and it was also admitted by the trapping officer that Baba Mahaveer Das insisted him to write that (Vernacular matter omitted... .Ed.) '.

17. In view of the above evidence, it appears that decoy P.W. 1 T. C. Deothia offered the money to the accused appellant giving an impression that he is returning the money due on him. So far demand of bribe is concerned the complainant P.W. 1 T. C. Deothia is the sole witness in this regard. According to him, the appellant Sh. Arya on 14/15-2-1985 demanded the bribe of Rs. 200/- for settling the enquiry in his favour which was subsequently reduced to Rs. 150/- and also reminded on 19-2-1985 and threatened that in case demand is not, fulfilled two grade increments will be stopped as punishment. In my considered view the allegations made by the complainant decoy P.W. 1 T. C. Deothia became suspicious because of the following reasons:

(i) When demand of illegal gratification was raised by the appellant on 14/15-3-1985 and thereafter on 19-2-1985 the complainant did not make any complaint immediately to CBI officers or his superiors and first of all he made a complaint to the Superintendent of Police. CBI on 22-2-3 935 after knowing about the finding of punishment of two grade increments in his enquiry which is proved by the statement of the Investigating Officer P.W. 17 K. S. Joshi who stated that Sh. T. C. Deothia knew about the finding in the enquiry that it is against him. Therefore, this possibility cannot be ruled out that after knowing the result in the enquiry from his own sources he made the complaint purposefully so that the judgment in the enquiry may not be delivered.

(ii) This fact has also come out from the prosecution evidence that the complainant P.W. 1 T. C. Deothia was having enemical relations with the accused appellant Arya P.W. 15 D. S. Dabose, former SDOT stated that he heard that the complainant T, C, Deothia quarreled with the sons of the appellant Arya.

(iii) It has also been proved and even admitted by P.W. 1 T. C. Deothia that he was transferred and relieved immediately from one branch to another at the instance of the appellant on 7-2-1985 i.e. few days before this incident.

(iv) It has also been proved from the evidence of the complainant P.W. 1 T.C. Deothia and other prosecution witnesses that Sh. Deothia lodged one FIR Ex. D3 on 8-2-1985 with regard to missing of Indian postal orders alleging that one key of the almirah was kept by the appellant and in this FIR wherein indirect allegations have been levelled against the appellant, after investigation police gave final report negative since the Indian postal orders were found in the same almirah.

(v) It has also been admitted by the complainant P.W.I.T.C. Deothia that he made a complaint against SDOT. Pilani where he worked for the period July 1081 to April, 1983and there were also some complaints against him for drawing money from the money order of some another person which also throws light on the conduct and antecedents of the complainant.

18. In these circumstances when few days earlier complainant tried to implicate the appellant in a false police case they were having strained relations and the complainant was transferred and relieved immediately at the instance of the appellant, it is not believable that the appellant shall demand Rs. 200/ or Rs. 150/- as bride for exonerating the complainant from the departmental enquiry.

19. In the view of the matter as discussed above, the sole testimony of the decoy P.W. I. T. C. Deothia cannot be believed in regard to the demand of bribe.

20. In view of what has been discussed above, it can be safely stated that the accused has been successful to satisfactorily rebut the presumption arising against him under Section 4(1) of the Act. It appears that P.W. 1 T. C. Deothia got the trap arranged to give a went to his annoyance and prevent the appellant in pronouncing the order which had finally been prepared by the appellant by which two grade increments of the decoy T. C. Deothia were stopped. Also viewed in this perspective the defence version appears to be plausible, reasonable and logical that the accused accepted the money under the impression that P.W. 1 T. C. Deothia was returning the money which was earlier advanced to him.

21. For the reasons discussed above, the conviction of the accused is bad and cannot be maintained.

22. In the result, the appeal of the appellant Ulfat Rai Arya is allowed. His conviction and sentence under Section 161, IPC and Section 5(l)(d) read with Section 5(2) of the Act are set aside and he is acquitted. He is already on bail and need not surrender. His hail bonds shall stand cancelled.