The absence of criminal intent is a defense to a charge of cheating or corruption.

1. 1. An unusual interesting case of the prosecutor becoming the accused, for cheating and corruption offence, the total amount analysed being Rs. 33.50/- has come to lime light in the criminal revision petitions filed under Section 397 Cr.P.C. by petitioner Roshan Lal, The amount of Rs. 33.50/- again is spread over in two years 1978 and 1979 as it is alleged that on 9-1-1978 the petitioner drew travelling allowance of Rs. 6/-as rickshaw charges and Rs. 8/- as daily allowances. On 12-4-1979 travelling allowance drawn is Rs. 8/- with Rs. 11.50 as daily allowances and this makes the total amount of Rs. 33.50/-.

2. Surprisingly enough this corruption and cheating as alleged by the prosecution was detected and discovered in the year 1981 when First Information Report was lodged, by one Shyam Lal Reader of the court in which the accused was the Assistant Public Prosecutor. Investigation followed. The modu soperandi of the investigation was search and research of the order sheets in which the Assistant Public Prosecutor was absent and then the bills of the travelling allowances and the daily allowances from 1978 to 1981.

3. The detective agency could find out ultimately that where as Rs. 33.50/- was actually obtained by the petitioner as daily allowance and travelling allowances without attending the court on the date for which it was drawn. Yet other bills amounting to Rs. 111.52 of 1978 and 1979 and 1980 and for Rs. 180/- of 1979 were submitted for, without attending the court at the Camp courts. These bills were not paid. For Rs. 76/- it was not drawn by the accused. The amount of Rs. 111.52/- was still in the process of preaudit checking and therefore, was not paid.

4. On the above bedrock the State Government granted sanction for prosecution in one and half page detailed order dated 17-6-1982 which reads as under, resulting in 4 separate challans:X X X X X X X

5. The prosecution case is that on the dates mentioned above in the above sanction, the Magistrate court has held at Camp, out side Jaipur as it was a railway camp court and the accused who was Assistant Public Prosecutor to the court was supposed to go and attend the court but without attending the court he submitted the bills, for travelling allowances consisting of hire charges of rickshaw and tonga etc. Being attached to railway Magistrate he was not allowed railway fare but for those days he has also charged DA. In all these amounts even if they would have been paid, was Rs. 221.02 out of which Rs. 33.50/- was drawn and the balance remained undrawn.

6. After bearing the petitioner Shri Roshanlal in person and Mr. S.R. Surana. Mr. Hanuman Choudhari Advocate for him and Mr. S.B. Mathur, Public Prosecutor assisted by Mr. Purohit, I may first point out some salient features of the case which will have great bearing in this judgment, as they have emerged during the arguments.

(i) All the amounts which have been either paid or claimed but not paid are very petty amounts and they have been verified and certified either by the agency of the prosecution, incharge of the office, in which the petitioner was functioning or Railway Magistrate in whose court he was attached;

(ii) These verifications have been not explained so far as the Assistant Public Prosecutor incharge is concerned. He has not been examined. The Railway Magistrate in his statement recorded under Section 161 Cr.P.C. has mentioned that the verifications were done, on the basis of the tour programme and the diaries of the programme which he inspected and which were shown to him. The relevant para of Shri Bhagwati's statement regarding the verifications of the TA bills reads as under:
X X X X X X X

(iii) Mr. Mathur, learned Public Prosecutor has after reply to the question and quarries put by the court has submitted that apart from the evidence of the order sheets in which has APP has been shown absent and which have been proved by the Railway Magistrate, his Reader and Mr. Dube Har Prasad, there is no iota of evi