Harbans Lal, J.— This appeal is directed against the judgment/order of sentence dated 14.5.2003 passed by the Court of learned Special Judge, Fatehgarh Sahib, whereby he convicted and sentenced the accused Gurmeet Singh to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- under Section 7 of the Prevention of Corruption Act, 1988 (for brevity ‘the Act’) and in default of payment of fine, to further undergo rigorous imprisonment for two months and also sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 1,000/- under Section 13(2) of the Act or in default of payment of fine, to further undergo rigorous imprisonment for two months.

2. Shortly put, the facts of the prosecution case are that Shamsher Singh complainant being JBT Teacher had sent his income tax statement for the year 1998-1999 to the office of Block Primary Education Officer, Sirhind-I. He had filed a medical bill worth Rs. 15,000/- in respect of his wife Surjit Kaur by claiming deductions under Section 80DDB of the Income Tax Act. His statement was accepted by the office and he was paid salary giving benefit of deduction to the stated extent. However, on 24.5.1999, he received a letter from the office calling upon him to deposit a sum of Rs. 13,000/- towards income tax and his form No. 16 was withheld. On receipt thereof, he contacted the accused on 3.6.1999 in his office being a dealing hand, who disclosed that his case has been sent to Income Tax Department and he is to pay Rs. 13,000/- along with interest in that regard and in case he pays Rs. 1,000/- as illegal gratification to him, he would do the needful in the matter and render favour to him. The complainant pleaded his inability to pay that much amount and on his imploring, the accused agreed to accept Rs. 800/-. The complainant disclosed these facts to Hardev Singh, President of Government Teacher's Union. They both came to the Office of Vigilance Bureau, Fatehgarh Sahib and presented currency notes worth Rs. 800/- for arranging the trap on the accused. After observing usual formalities, the raiding party including Narinder Kumar PW was arranged. Thereafter, such party went to the office of the accused. Shamsher Singh complainant and Hardev Singh shadow witness were sent ahead, while the other members remained behind in waiting for the signal. After sometime, on receipt of the appointed signal from the shadow witness, the raid was conducted. The accused was found sitting in his office. He was caught hold from his wrist. The tainted currency notes were recovered from the almirah of the accused. These were seized vide recovery memo. After completing the formalities, the accused was put under arrest. On completion of investigation, the charge-sheet was laid in the Court for trial of the accused.

3. The accused was charged under Sections 7 and 13(2) of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW1 Bhag Singh Senior Assistant, Office of DPI, Punjab, PW2 Kulwant Singh Clerk, PW3 Shamsher Singh complainant, PW4 Hardev Singh shadow witness, PW5 Surinder Kaur Block Primary Education Officer, Sirhind-I, PW6 Narinder Kumar, PW7 Constable Harminder Singh, PW8 Constable Nirmal Singh, PW9 MHC Gurbhej Singh, PW10 Kashmir Singh Bhinder DSP Investigator and closed its evidence. When examined under Section 313 of Cr.P.C, the accused admitted to be on duty at the relevant time in his office, but denied if the complainant met him on the day of raid. He came up with the plea that form No. 16 was issued to the complainant on 15.4.1999, who did not attach any bills claiming deductions alongwith form No. 10(1) and that form No. 24 was deposited in the Office of Assistant Commissioner Income Tax, Patiala on 24.5.1999 and that the letter was written to the complainant for non-deposit of income tax on 25.5.1999 Besides this, he denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence as well false implication. He had summoned Gurdeep Singh Senior T.A Income Tax Office, Patiala to examine in his defence, but this witness stated that the record required in this case is not in our office as the same was transferred to Income Tax Office at Gobindgarh and that photostat copy of the document Mark X bears the stamp of our office and it appears to have been signed by the receipt clerk of the office. He did not adduce any other evidence in his defence.

4. After hearing the learned Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved therewith, he has preferred this appeal.

5. I have heard the learned counsellor the parties, besides perusing the record with due care and circumspection.

6. To begin with the learned counsel for the an appellant canvassed at the bar that the appellant being not in a position to help Shamsher Singh (sic), the question of raising demand of bribe by the former does not arise. He further pressed into service that Shamsher Singh PW is himself an accused in FIR No. 163 of 18.7.1995 under Sections 420/461/468/471/120-B of IPC, Police Station Sadar, Patiala and he himself has admitted in evidence that he is accused in the said case. Thus, the statement of such witness does not deserve to be relied upon. When Shamsher Singh was in jail in the above-mentioned case, he again tried to commit another fraud, when he sent an application to the department for leave stating that the condition of his wife is not well and he may be granted leave. As regards, Hardev Singh PW, he also does not deserve to be trusted upon, as he was under suspension for his misconduct as a government employee and he himself has admitted that he was placed under suspension. Narinder Kumar independent witness has solemnly affirmed that the raiding party had recovered the alleged amount from the open almirah accessible to other officials in the office whereas the prosecution version is that the bribe money was recovered from the possession of the appellant in his presence. This renders the whole prosecution story as false and fabricated one. The false implication of the appellant is again proved by the statement of Surinder Kaur, Block Primary Education Officer, who has also stated that “she was not contacted by the Trap Laying Officer before the raid was conducted and that while she was standing on the table of her office, she noticed that the appellant was raising alarm that he is being involved in a false case by Shamsher Singh in connivance with Vigilance Bureau. The room of the appellant was bolted from inside and no one was allowed to enter the same. Door was not opened in-spite of having made repeated requests by the employees of the office.

7. To buttress this stance, he has sought to place abundant reliance upon Ganapathi Sanya Naik v. State Of Karnataka, 2007 (4) RCR (Criminal) 184 : 2007 (5) RAJ 132, Harnek Singh v. State of Punjab, 2000 (2) RCR (Criminal) 403, Meena (Smt) W/O Balwant Hemke v. State Of Maharashtra, 2000 (2) RCR (Criminal) 661, Har Bharosey Lal v. State of U.P, 1988 Criminal Law Journal 1122, Anand Parkash v. State of Haryana, 2008 (2) RCR (Criminal) 335 (P&H) and State of Rajasthan v. Mohan Lal, 2009 (2) RCR (Criminal) 812 : 2009 (3) RAJ 239 (SC).

8. To controvert these submissions, the learned State counsel maintained that Sham Sher Singh as well as Hardev Singh PWs have supported the prosecution case in its entirety and thus, the ingredients of the charged offence stand well established.

9. I have given a deep and thoughtful consideration to the rival contentions. Shamsher Singh (sic.) has testified that “However, on 25.5.1999, I received a letter from Block Education Officer asking me to deposit Rs. 13,000/- towards income tax and my form No. 16 was withheld though to other employees, it had not been issued by the Block Officer. On receipt of above letter, I met Gurmeet Singh Clerk (referring to the accused-appellant) in the Office of Primary Education Officer, Sirhind-I. He was the dealing hand. When 1 asked the accused, he told that the complaint against me has been made to the Income Tax Office and that my work could be done after making the payment of bribe. Gurmeet Singh demanded Rs. 1,000/- as bribe for helping me. Ultimately, the bargaining was settled at Rs. 800/-. I was not willing to pay the demanded bribe money. I, however, made a false promise to come with the bribe money on 4.6.1999 and came back.” The question arises, if the matter had already been reported to the Income Tax authorities against Shamsher Singh (sic.) by the Block Education Officer, whether the accused-appellant in any manner would have been in a position to get the same hushed up. The prosecution has not adduced even an iota of evidence revealing that the accused-appellant had liaison, rapport or nexus with the officials of the said Department and that being so, he was in a position to manage the things in favour of the accused appellant. The complainant was not an uneducated person, who could have been lured by the accused-appellant to get the needful done. The latter being simply a clerk, by no stretch of speculation, could be expected to get the letter written by the Block Education Officer buried. Thus, it does not stand to the logic that the complainant would have fallen prey to the alleged offer. The complainant being an educated person before believing the alleged words of the accused-appellant ought to have ensured from here or there or any source as to whether or not the accused-appellant has clout in the stated Department. Where a complainant approaches a Vigilance Officer with a prayer to conduct raid on a public servant by pleading that such public servant (bribe receiver) is in a position of authority over him (bribe giver), there it is obligatory upon the Trap Laying Officer that before proceeding to conduct a raid, he should ensure that the bribe receiver was verily in such a position. In other words, the Trap Laying Officer must ensure that the bribe receiver is seized of the matter relating to the bribe giver and the former i.e bribe receiver would be in a position to confer some official favour upon the latter (bribe giver).

10. Now it is to be noticed as to under what circumstances, the presumption under Section 20 of the Act can be drawn. The burden resting on the accused will be satisfied, if the accused person establishes his case by a pre-ponderance of probabilities. It is not necessary for him to establish his case by the test of proof beyond reasonable doubt. In other words, the nature of the burden placed on him is not the same as that placed on prosecution which must not only prove its case, but prove it beyond reasonable doubt. Therefore, the presumption will arise only when acceptance of money or money's worth is proved in the case. Mere recovery of money divorced from the circumstances under which it was paid is not sufficient when the substantive evidence in the case is not reliable to prove payment of bribe or to show that the accused voluntarily accepted the money.

11. Harking back to the instant one, as noted supra, the accused appellant was not in a position of authority over Shamsher Singh to get the matter hushed up. Thus, when it was not within the appellant's competency to do so, it has been left in the womb of mystery as to how Shamsher Singh had agreed to pay an amount of Rs. 800/- as bribe to the accused-appellant. The recovery having been effected from the almirah, it is very difficult to say that the tainted currency notes were accepted by the appellant voluntarily. That being so, the presumption under Section 20 ibid cannot be drawn against the appellant. As surfaces in the cross-examination of Shamsher Singh (sic.) “the accused counted the notes and put the same in the almirah in the wall under some office files in the upper shelf of the almirah.” It is in the cross-examination of Hardev Singh shadow witness PW4 that “there was no lock to the almirah where files were lying.” As testified by Narinder Kumar PW6 “on reaching the office of accused Gurmeet Singh was searched, however, the tainted currency notes could not be recovered. Thereafter, the other places in the office were searched, but the currency notes could not be found. After some time, may be about half an hour, the employees of Vigilance Department searched an almirah where miscellaneous papers were lying and told that the currency notes were lying under a newspaper in that almirah and accordingly, he (referring to the employee of Vigilance Department) produced those currency notes before the DSP. Accused himself had not produced those currency notes.” This witness was working as a Laboratory Assistant in the Office of Chief Agricultural Officer, Fatehgarh Sahib, on the day of raid. Thus, he being an official witness could not be expected to tell a lie. On appreciating his above evidence, it transpires that indeed the currency notes were recovered by an employee of the Vigilance Department from an almirah. The possibility of the tainted currency notes having been concealed beneath the newspaper in the open almirah by the complainant himself or some other person at his instance cannot be ruled out. So, in the nature of things, it would be going too far to maintain conviction.

12. Kashmir Singh Bhinder PW 10 Investigator also went on to say that “the tainted currency notes numbering 8 of Rs. 100/- denomination were recovered from almirah of accused.” He has nowhere stated that the same have been got recovered at the pointing out of the accused-appellant. It also surfaces in his cross-examination that “there was one almirah in the room attached with shutters, but it was not locked. Other papers under or above the currency notes were not taken into possession. I had not offered myself for search to the accused before raid.” It spells out from this evidence as well that the almirah from which the tainted currency notes were recovered did not have any lock and furthermore, the Investigator had not offered his persona! search to the accused before conducting the raid. In re: Mohan Lal (supra), “the currency notes smeared with powder were recovered from open almirah. There was no evidence to show how the currency notes smeared with powder reached in the almirah. The evidence was to the effect that the amount was demanded by the accused, which was paid but instead of accepting it directly, the accused asked the person concerned to put the currency notes in the almirah. The accused was acquitted, by the learned trial Court. The appeal there-against was also dismissed by the High Court. The Apex Court observed that “In the aforesaid view of the matter, no interference is called for in this appeal, which is dismissed accordingly as the view expressed by the trial Court and the High Court are reasonable and possible views and there is not perversity therein.”

13. Adverting to the instant one, it is not the prosecution case that the appellant instead of accepting the tainted currency notes directly had asked Shamsher Singh to put the same in the almirah. The facts of the present case are on better footing than Mohan Lal's case (supra). in re: Anand Parkash (supra), also the currency notes were recovered from the almirah and not from the personal search of the accused. It was held that the giver of bribe is normally to be treated as an accomplice. The Court may look for independent corroboration before recording conviction. The positive result of phenol phethalene test is not enough to establish the guilt of the appellants. In the present one, on evaluating Narinder Kumar PW's evidence, it emanates that the currency notes were recovered from open almirah but not at the instance of the accused-appellant. In re: State of Bihar v. Basawan Singh, AIR 1958 Supreme Court 500, it was held as under:

“The correct rule is this: if any of the witnesses are accomplices who are praticeps criminis in respect of the actual crime charges, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person. If a Magistrate puts himself in the position of a partisan or interested witness, he cannot claim any higher status and must be treated as any other interested witness.”

14. Shamsher Singh PW has stated in his cross-examination that “I do not recollect to have remained in Central Jail, Patiala in case FIR No. 163 dated 18.7.1995 under Sections 420/461 etc. of IPC of Police Station Sadar Patiala. I am facing a trial in a case under Sections 420 etc. of IPC in the Court at Patiala but the case is false.” If a person remains lodged in the jail, by no stretch of imagination, he can forget such a stark fact. He has obviously admitted that he is facing a trial in a Criminal Court. Hardev Singh (sic.) shadow witness under the stress of cross-examination has stated that “It is correct that I was suspended but I was not served with any charge-sheet. The case in which I was suspended was withdrawn and warning was given to BPEO. I am President of the Union known as Primary Teachers Association.” If this evidence is viewed in the light of the observations rendered in re: Basawan Singh's case (supra), the same must be treated as accomplices or partisan or interested witnesses who are interested in the success of the case. Thus, it would be quite risky to rely upon their statements. In re: Har Bharosey Lal (supra), the money was recovered not from the person of the accused but from, drawer of his table. It was held that the possibility that somebody or the complainant himself surreptitiously might have kept the signed currency notes in drawer cannot be ruled out. In re: Ganpathi Sanya Naik (supra), it was the prosecution case that the accused had demanded something from the complainant for effecting entry of mutation in the revenue record. The trap was laid. The currency notes were recovered from table of accused beneath of his files. The defence version was that no demand was made and currency notes had been surreptitiously put on the table while the appellant was otherwise engaged in some activity. The accused was acquitted. In re: Meena W/o Balwant Hemke (supra), the currency note of Rs. 20/- was recovered from table of the accused. It was the version of the accused that the PW tried to thrust the currency note into her hand, but she pushed it away and note fell on the table. It was held by the Supreme Court that “Like any other criminal offence, prosecution has to prove the charge beyond reasonable doubt and accused should be considered innocent till it is established otherwise by proper proof of acceptance of illegal gratification and that the materials on record in this case are not sufficient to bring home the guilt of the appellant.” The conviction and sentence of the appellant was set aside.

15. Coming to the case in hand, if the matter is viewed in the light of the observations rendered by the Apex Court in the afore-quoted rulings, the charged offence is not established.

16. Surinder Kaur, Block Primary Education Officer PW5 has solemnly affirmed in her cross-examination that “On 4.6.1999 (referring to the date of occurrence) I remained present in my office from 9:00 A.M to 10:00 P.M Gurmeet Singh accused was working as a Clerk under me in my office. When Gurmeet Singh was apprehended by the Vigilance, I was present in my office. I have brought letter No. 635 dated 4.6.1999, which was written by me to Chief Education Officer, Primary, Fatehgarh Sahib. Ex.DB is the said letter which bears my signatures and is written by me. I had written the letter on the basis of my knowledge and whatever I witnessed on that day. I had written a letter to Income Tax Officer, Ward No. 5, Circle Patiala and bearing No. 609 dated 21.5.1999 regarding deposit of form No. 24 of the employees in my office. That information along with letter was deposited with Assistant Commissioner of Income Tax on 24.5.1999 by me. That performa contained the names of 90 teachers working in the block. Mark X is the letter written by me and Mark Y is the performa containing names of teachers (Both photocopies). Both letters bears my signatures. Name of Shamsher Singh teacher is mentioned at Serial No. 68 of mark Y which was sent by me. I had written a letter to Shamsher Singh J.B.T Teacher bearing letter Mo. 611 dated 25.5.1999 which was signed by me which is Ex. DA and copy of the same was sent to Income Tax Officer Ward No. 5, Patiala regarding the rebate of Income Tax. When Shamsher Singh teacher met me, he did not produce any medical certificate, nor any other document was given to me. I had given form No. 16 to Shamsher Singh on 15.4.1999 Shamsher Singh did not meet me after I had supplied him form no. 16. Some of the Teachers deposit their income tax directly in bank and submit Voucher/Challan form in the office. Gurdev Singh teacher-cum-clerk also used to sit in the same room where Gurmeet Singh was sitting. Gurdev Singh teacher-cum-clerk remained present in the office on 4.6.1999 from 9:00 A.M to 5:00 P.M Room of Gurmeet Singh was adjoining my office. Vigilance Officers did not contact me on that day. They did not call me or take the search of Gurmeet Singh in my presence. There is a wail of 4″ in thickness between my room and room of Gurmeet Singh and height of that wall is 6-7″ feet. I had heard the alarm and also saw into the room while standing on the table of my office. Gurmeet Singh was raising alarm that he is being involved in a false case by Shamsher Singh in connivance with the Vigilance Bureau. Police, and I had sent the detailed report to District Education Officer on that day what happened in the office. I was not allowed to enter the room where the Vigilance Police was present. They had closed the door from inside.”.

17. The afore-extracted cross-examination of Surinder Kaur PW is fortified the documentary evidence. As per the contents of Ex. DA, the letter purportedly written by Surinder Kaur PW being the Block Primary Education Officer to Shamsher Singh complainant, the latter was informed that the rebate of Rs. 15,000/- in the income tax cannot be given and that the office is experiencing difficulty in preparing Form No. 24 as well as Form No. 16. Therefore, he was asked to deposit a sum of Rs. 13,000/- along with interest. In her letter Ex.DB bearing No. 635 dated 4.6.1999 addressed to District Education Officer (Primary) Fatehgarh Sahib, she has mentioned that “Shri Gurmeet Singh Clerk raised alarm at 2:45 P.M that forcibly the notes are being put in his hands and when she knocked at the door, the same was not opened. This letter purports to have been written soon after the occurrence.” This documentary evidence coupled with her afore-extracted examination further falsify the prosecution version.

18. As a sequel of the above discussion, this appeal is accepted setting aside the impugned judgment/order of sentence. The accused appellant is hereby acquitted of the charged offence. The bail bonds stands discharged.

Order Accordingly.