The main legal point established in the judgment is the necessity of proving both demand and recovery for conviction under the Prevention of Corruption Act, and the burden of proof on the accused to rebut the presumption of acceptance of illegal gratification.

JUDGMENT/ORDER :

Pushpendra Singh Bhati, J.

1. This Criminal Appeal under Section 374 Cr.P.C. has been preferred with the following prayer:-

It is, therefore, prayed that this Hon'ble Court will be pleased to send for the record of the lower court, peruse the same and after perusal quash the convictions and sentences passed against the appellant or pass any other orders that this Hon'ble court deems fit and proper."

2. This Criminal Appeal has been preferred against the judgment dated 02.12.1991 passed Special Court (Anti Corruption Cases), Bhilwara, in Case No. 4/91 (4/83) whereby the appellant was convicted under Section 161 I.P.C. and Section 5(1)(d)(2) Prevention of Corruption Act.

3. Brief facts of the case as placed before this Court by learned counsel for the appellant are that the appellant was an Assistant Engineer, R.S.E.B., Gangrar in the month of March, 1982, and that on 04.03.1982, one Mohan Jat appeared before the Anti Corruption Dept. Chittorgarh and complained against the appellant stating that a demand for illegal gratification, to the tune of Rs. 200/- was made from him by the appellant. And that, on the very same day, proceedings were conducted and the D.S.P. along with the complainant started for the purpose of trap, but since the appellant was unavailable on that particular day, the trap was postponed for the subsequent day, and that on 05.03.1982 again a trap was laid by the D.S.P. and the complainant, and that a recovery of the said amount was allegedly made from the appellant. And that on this basis, the accused appellant as charge sheeted and was convicted, as aforementioned.

4. Learned counsel for the appellant further submits that the learned Court below has erred in convicting the appellant, as the essential ingredients for a conviction under both offences are not made out and that therefore, the judgment of the learned Court below deserves to be quashed and set aside.

4.1. Learned counsel also submits that there are contradiction testimony given by P.W. Mohan, who subsequently turned hostile and retracted his earlier statements. And that, if such inconsistent statements are made by a key witness, then that statement which is in favour of the accused has to be taken into consideration by the Court. Furthermore, that his statements are unsubstantiated by any evidence and therefore should not have been taken into consideration by the learned Court below.

4.2. Learned counsel further submits that the alleged demand for illegal gratification from the appellant, and that in the absence of same a conviction cannot be made against an accused under the Prevention of Corruption Act, and that a conviction cannot be made on the sole basis of alleged recovery of an amount from an accused.

4.3. Learned counsel also submits that the same, as above discussed, is corroborated from the testimonies of the witnesses' P.W. 1 Shiv Narain, P.W. 2 Vakat Ram and P.W. 4 Harish Chander, who are motbirs, do not connect the accused with the crime, and that they did not see the acceptance of the alleged illegal gratification from the appellant. And that, the testimony rendered by P.W. 3 Mohan was also not corrborated by either of the testimonies of the said witnesses.

4.4. Learned counsel further submits that the learned Court below has seriously erred in drawing a presumption under Section 4 of the Prevention of Corruption Act when there is no prima facie evidence of a demand for illegal gratification being made by the appellant.

4.5. Learned counsel also submits that the amount of Rs. 200/- which is being attributed the status of illegal gratification as recovered from the appellant, was in fact an amount advanced as loan by the appellant to one Shri Bharat Vijay Singh Thakur of Putholi on 07.01.1982, who gave the said amount to Mohan, P.W. 3 when he was coming to Gangrar, to return to the appellant. And that, this is corroborated by the documentary evidence as well as oral evidence placed on record before the learned Court below.

4.6.