MANOHAR LAL Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) The accused appellant has been convicted by the learned Special Judge, Anti Corruption Cases, Jaipur under its judgment dated 30th Sept., lv82 for an offence under sections 161 I.P.C., 5 (1) (d) (2) of the Prevent on of Corruption Act, 1947 (for short the P C. Act) and under each of the count the accused appellant was sentenced to undergo four months simple imprisonment and in addition to imprisonment under section 5 (1) (d) (2) of the P.C. Act, he has also been sentenced to pay Rs. 200.00 as fine or in default of payment of fine to further suffer two months simple imprisonment. The substantive sentences have been ordered to run concurrently.

(2.) It brief the facts of the case are these : The appellant Manohar Lal was the Patwari of Circle jurisdiction. In the year 1977 it is alleged that PW 1 Charan Singh resident of the same village Nagla Samhad along with few others had submitted an application Ex. P. 1 before the Tehsildar on 14th Nov. 1977 and the Tehsildar forwarded it to the Patwari to make his report on that very day. When Charan Singh approached the Patwari and handed over Ex. P. 1 to him with the endorsement of the Tehsildar, it is alleged that the appellant demanded Rs. 50.00as illegal gratification for making the report as desired. It is alleged that the complainant did not want to make any payment. The accused appellant initially demaded Rs. 50.00 but ultimately it was settled for Rs. 40.00. On 30th Nov. 1977, the fixed date when the amount of Rs. 40.00 was to be paid to the accused appellant, as Charan Singh did not want to pay the amount as aforesaid, he went to Dy. S.P., Anti Corruption Department, Bharatpur and submitted report on 30th Nov. 1*77. He handed over notes of the value of Rs. 20.00, Rs. 10.00 each to Dy. S.P. Kalyan Singh PW 9. Kalyan Singh put his initials over the currency notes and powder was sprinkled. The notes were handed over to Charan Singh and a trap was laid. After taking two motbirs, a raid was arranged and the Dy. S.P. Kalyan Singh PW 9 and motbirs along with Charan Singh and Pyarelal PW 3 of his village reached Roopwas. The other members of the raid parly were standing at a distance and Charan Singh PW I and Pyare Lal PW 3 went to the patwari, the accused appellant, who is said to have asked Charan Singh as to whether he has brought the money. It is alleged that the accused appellant took the currency notes of the value of Rs. 40.00 as aforesaid. A signal was given by Charan Singh and the Dy. S.P. and others reached there and the currency notes of the value of Rs. 40.00 were recovered from the possession of the accused appellant. The pocket of baniyan in which the currency notes were put by the accused appellant was washed in the solution of Sodium Carbonate and it turned into purple, which was sealed in a bottle and was sent to the chemical examiner. The chemical examiner on examination found that the sample contain Sodium Carbonate and Phenopthelin. After taking the sanction a charge-sheet was filed against the accused appellant and he was tried. The defence of the accused appellant in the cross examination as well as in his statement under section 313 Cr. P.C. was that he had not accepted any illegal gratification from Charan Singh. In fact a sum of Rs. 48. 0.00was due against Shyam Lal S/o Pyarelal PW 3 and Charar, Singh and Pyarelal had come to pay Rs. 48.60.00 Charan Singh had given him currency notes of the value of Rs. 50.00 and he had returned the change of Rs. 1.40.00 His defence, there was that in fact the amount of Rs. 50.00 was paid by Charan Singh towards penalty amount due against Shyam Lal. The accused appellant also examined three witness in defence namely Bhanwar Singh DW 1, Ramesh Chand Shaima DW 2, and Vasudev DW Rs.The first of them was Incharge Office Kanungo, the second was Cashier and the third was the accountant. Each of them supported the case of the accused appellant and on behalf of the accused appellant reliance was also placed on a document try evidence including Ex. D. 1 and D. 2, D. 1 the receipt of Rs. 48.60.00 dated 30th Nov. 1977.

(3.) The question is as to whether on the evidence on record, it can be said that the sum of Rs. 48.60.00 was due as penalty towards Shyam Lal S/o Pyarelal PW 3. It may be stated that on the material on record not only the currency notes of the value of Rs. 40./- were recovered but the currency notes of the value of Rs. 50.00 were recovered from the possession of the accused appellant and it may be stated that the defence of the accused appellant was that in fact Charan Singh has given Rs. 50.00 saying that he is paying it on behalf of Shyam Lal. If the currency notes of the value of Rs. 40.00 the tainted money would have been recovered, the matter would have been different, but the fact that the currency notes of the value of Rs. 50.00 were recovered is an important circumstances which has to be taken in to consideration by the court while examining the defence theory. The law is settled that burden on the accused is not as heavy as on the prosecution and the accused has to discharge the burden placed on him by the preponderance of probability. It has come in the statement of PW 9 Kalyan Singh Dy. S.P. and who has laid the trap that when the search of the accused appellant was taken beside Rs. 40.00currency a note of Rs. 10.00 was also recovered. He also states that there is mention on it in the memo of search. It may also be stated that PW 5 Moolchand states that only Rs. 10.00 were recovered and not currency notes of the value of Rs. 50.00, which fact is admittedly not correct. PW 6 Girraj Prasad Sharma, Head Constable who had accompanied Kdyan Singh Dy. S. P. states that beside Rs. 40.00a currency note of Rs. 10.00 was also recovered f om the pocket of the accused appellant. He also states that some change was also recovered. It can, therefore, be said on the material on record that infact currency notes of the value of Rs 50.00 along with some change were recovered from the accused and not only Rs.40.00 which is said to be the tainted money. It may be stated that Pyarelal and Charan Singh belong to the same village Nagla Samhad and as shall be presently shown that there is material on record that Shyam Lal son of Pyarelal was to pay Rs. 48.60.00 as penalty amount to the government. As to why Pyarelal at all accompanied Charan Singh PW 1 at the time of occurrence, cannot be understood. Pyarelal has no doubt stated that his son Shyam Lal was residing separately from him but as to whether Shyam Lal was to pay Rs. 48.60.00 as penalty, he does not know it. He does not say clearly that any amount was due against Shyamlal. On behalf of the accused appellant documentary evidence was led that loan of Rs. 48.60.00 was due against Shyam Lal and the accused also examined witnesses in defence were all Government servants.