JUDGMENT
1. This Appeal arises out of the order of conviction and sentence passed by the Special Judge, Solapur, in Special Case No. 3 of 1980 convicting the present Appellant No. 1 (Accused No. 1) of offence under S. 161 of the Indian Penal Code and as also under S. 5(1)(d) read with S. 5(2) of the Prevention of Corruption Act 1947 and sentencing him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 300/- and an order of sentence in default of payment of fine.
Appellant No. 2 (accused No. 2) is convicted for offence under S. 165A of the I.P.C. and he is also sentenced to suffer R.I. for one year and to pay a fine of Rs. 300/- together with sentence in default of payment of fine.
The prosecution case has been fully stated by the lower Court in paragraphs 2 to 12 of its judgment and, hence, it is unnecessary to recount the various facts which are unfolded by the prosecution case. I will, therefore, state the prosecution case very briefly as follows :
It is useful setting out the who’s who of the various persons who figure in this case, as accused, as witnesses and as persons who had played some relevant role in the eventuality.
2. The who’s who : Accused No. 1, appellant No. 1 before me, was the Sub-Inspector at the Pandharpur Police Station in the month of July 1979. Accused No. 2 (who is appellant No. 2 before me) was the Police Patil of Village Vale where most of the persons who figure in this case reside.
The other persons who figure in this prosecution either as witnesses examined or as persons who have become conspicuous by the fact that they were not examined are as follows :
(i) Pandurang Varkhal, P.W. 1. He figures as the complainant in this case.
(ii) Madhukar Nivritti Holkar, P.W. 2. He is the brother of one Hariram. Hariram has not been examined though he appears to have played some significant role in this case which will be pointed out presently. Madhukar, P.W. 2 also claims to have played quite a stellar role in this episode.
(iii) Head Constable Kadam, P.W. 4. He, along with Abdul Aziz, P.W. 5, works at Pandharpur Police Station.
(iv) Constable Abdul Aziz, P.W. 5. He works at the same Police Station. He has been examined as another stellar witness; but, apparently, he has demonstrated his fond hobby of remaining absent at every crucial occasion. Although P.W. 4 and P.W. 5 claim to be present at the Police Station just at the first crucial occasion dated 18-7-1979 when the above mentioned application, Exhibit 24, was presented by Shivaji, P.W. 1, at the Police Station, neither of them refers to the presence of the other.
(v) Shivaji Khalge, D.W. 1. He was cited as a prosecution witness, was not examined by the prosecution and was ultimately examined by the defence as the defence witness. He fully supports the defence version and, if the evidence is believed, nothing remains in the prosecution case.
(vi) Dagdu Khalge. He is the brother of Shivaji Khalge, D.W. 1. It is on his account, if the case of P.W. 1 is to be believed, that the entire saga was set in motion.
(vii) Hariram. This witness has not been examined. His brother Madhukar, P.W. 2, has been examined by the prosecution. He is the father of Balabai who is the wife of Dagdu Khalge. The prosecution case is that it is the information given by this witness Hariram to P.W. 1 Pandurang about the report of illicit relation between Pandurang and Balabai that Pandurang was propelled to go to the house of Shivaji, brother of Dagdu, for giving to him a piece of his mind. The non-examination of this witness does give rise to some raising of eye-brows and to drawing of some adverse inference.
(viii) Balabai. As mentioned above, she is the wife of Dagdu. She figures in this episode, but plays no role in it. She is rightly not examined. As stated above, she is also the daughter of Hariram Holkar who has played quite an eye-catching role, or rather, an ear-catching role, in this episode, but, still, he is not examined by the prosecution.
(ix) Lastly, there is that Gana Kotwal. He is the Kotwal in Village Vale, who has allegedly been a witness of some crucial talks and events but, all the same, has not been examined by the prosecution.
3. Prosecution case : Disputed part and undisputed part. – The prosecution case may be stated here. A large portion of it is not disputed at all. I will give indication of the disputed part and the nature of the dispute. This will narrow down the field of discussion and appreciation of evidence.
As stated above, Pandurang, P.W. 1, is the resident of Vale. Hariram Varkhal (They also call him Holkar) is his distant relation. According to the prosecution, sometime before 16th July, he met Pandurang and he insinuated to him something against his son-in-law Dagdu. The insinuation was that Dagdu was spreading a canard that Pandurang was having illicit relation with his (Dagdu’s) wife, meaning thereby that he (Dagdu) was maligning Hariram’s own daughter. Dagdu also went on saying, insinuated Hariram, that Pandurang should better swap his own wife for that of Dagdu, if he wanted to have illicit relation with Dagdu’s wife Balabai. The Prosecution would have us believe that Pandurang naturally took this as a character assassination and, hence, when, on one evening, he was passing by the door of Dagdu, he went inside Dagdu’s house for inquiring as to why such canards were being spread by the group. Not Dagdu but Shivaji was present. Pandurang inquired of Shivaji as to why Dagdu was doing such thing. Shivaji told him to meet him on the next date at the Chavadi, which was the place fixed for the tryst, where everything would be verified and sorted out. Accordingly, contends the prosecution, Pandurang and Hariram waited for Shivaji at the Chavadi at the appointed hour. Neither Shivaji nor Dagdu, however, turned up.
Shivaji Khalge, thereafter, gave an application at the Pandharpur Police Station on 18th July, 1979 alleging that Pandurang had gone to his house, completely inebriated, carrying a dagger (Jambiya) in his hand and threatening that he was going to kill Dagdu. The application was taken by H. C. Kadam, P.W. 4, and, while he was reading that application, accused No. 1 came. H. C. Kadam handed over the application to accused No. 1, accused No. 1 read it and came out of the Police Station with Shivaji and accused No. 2 (Police maintain that accused No. 2 was accompanying Shivaji), and, after sometime all of them came inside the Police Station when the application was given by accused No. 1 to Constable Abdul Aziz, P.W. 5, and, at the same time, told Shivaji that he would come to Village Vale for making inquiry in a short while.
The remaining case can be gathered fully from the fulsome statement of the same made in paragraph 4 of the lower Court’s judgment. In substance, the case is that on 22nd July, 1979, accused No. 1 went to Vale on a motor-bicycle, accompanied by Constable Abdul Aziz, P.W. 5, recorded the statements of the members of the family of Shivaji in relation to the facts stated in the application dated 18th July, 1979 (Exhibit 24). He also called Pandurang, P.W. 1, to the Police Station, abused and scolded him severely, slapped him and kicked him with his feet with his boots on and told him that his head was swollen. Therefore, when the recording of the statements of the members of Shivaji’s family was over, the Police Patil, accused No. 2, stated that the meals were ready. There is no evidence to show the menu of the meals; but it appears that it was tantalizing and mouth-watering enough to persuade even Pandurang, P.W. 1, to accompany accused Nos. 1 and 2 to the feast when he was requested by accused No. 2 to join them for the meals. In the house of accused No. 2, suggestion was made by accused No. 2 to Pandurang that accused No. 1 was an inconsiderate person and that it was better that P.W. 1 Pandurang settled the matter with him. Pandurang asked him as to what would be the settlement. Accused No. 2 asked him to wait.
After the meals were over, all of them returned back to the school where the earlier scene had taken place. There accused No. 2 suggested to accused No. 1 that the latter should take some “paan-supari” and settle the matter. Initially, accused No. 1 asked for Rs. 1,000/- but P.W. 1 expressed him inability to pay Rs. 1,000/-. Thereupon, accused No. 1 asked Gana Kotwal to bring Pandurang to the Police Station and the two accused and Abdul Aziz rode the motor-bike to reach Pandharpur Police Station.
Gana Kotwal and Pandurang, P.W. 1, reached the Police Station on foot by about the evening time. There, after some haggling, the amount of the bribe was reduced to Rs. 400/-. The amount of Rs. 50/- was paid by P.W. 1 to accused No. 2 there and then and he took time till 24th July, 1979 for payment of the balance.
But, after he went to his village Vale, P.W. 1 had a second thought. He approached the Anti-Corruption Department and lodged his complaint. The trap was arranged on 24th July, 1979. The currency notes of Rs. 350/- taken by P.W. 1 to the Anti-Corruption people were marked and were handed over to the complainant. He was asked to pay the amount to accused No. 1 upon demand being made by him in that behalf.
The further story is the usual one. The trap was, apparently, successful. Apparently, accused No. 1 was caught red-handed while accepting the marked notes of Rs. 350/- from P.W. 1. The usual panchnama was made. Though accused No. 2 was not caught in the trap, still, upon the complaint of P.W. 1, he was also arrested and investigation proceeded against both the accused.
4. [ x x x x x x ]
5. Defence : The defence, as it unfolded itself, firstly from the cross-examination of the prosecution witnesses, nextly from the examination of the accused under S. 313 of the Criminal Procedure Code and, lastly, from their written says, Exs. 43 and 44 respectively may be stated at this stage itself.
Very briefly speaking, the defence was very simple. According to both the accused, an application was made by Shivaji (D.W. 1) at the Pandharpur Police Station on 18-7-1979 for protection of the applicant and his family from the goonda activities of Pandurang (P.W. 1). Both the accused referred to the incident dated 16-7-1989 (the incident as such is admitted. The application made by Shivaji (D.W. 1) at the Police Station is also admitted). The plea of the applicant Shivaji was that Pandurang (P.W. 1) had gone to the house of Shivaji not at evensong but at the unearthly hour of 12.30 or 1 a.m. on 16-7-89 or (it may be 17-7-1989). Grievance was that he was punch drunk and in that condition he manhandled Shivaji and threatened to murder him and after making enquiries about the whereabouts of Dagdu, he threatened to murder Dagdu as well. As per the application given by Shivaji, he shouted for help and neighbours collected and, that is how he was saved from being murdered. On 18-7-1979, therefore, he went to the Pandharpur Police Station accompanied by accused No. 2 and made the application (produced in these proceedings at Ex. 24), stating the above facts and stating also that one Vithal Ramchandra Ghodake had come running to the spot and that he saved Shivaji from being murdered. According to accused, accused No. 1 read the application, give it to Abdul Aziz for being registered and informed Shivaji as also accused No. 2 that he would come to village Vade sometime in the next week and would make enquiries in the matter. According to both the accused, accused No. 1 did go to village Vade on 22-7-1979 accompanied by constable Abdul Aziz (P.W. 5). He sent for the applicant Shivaji’s witnesses for the purposes of enquiries. He also sent for P.W. No. 1 Pandurang for hearing his side of the matter. All of them came. Likewise accused No. 2 also came there. Accused No. 1 took down the statements of members of family of Shivaji. He also enquired of Pandurang as to what he had to say. Thereafter, he left for the Police Station with constable Aziz on the motor-cycle and asked Gana Kotwal to bring Pandurang to the Police Station. Accordingly both of them came there. Likewise Shivaji and accused No. 2 also came there. In the presence of all of them, Pandurang agreed to settle the matter with Shivaji. Shivaji insisted that Rs. 400/- be paid to him by Pandurang as compensation for the heinous act committed by him on the night of 16th, July with an assurance that such things shall not be repeated. Pandurang agreed but said that he had only Rs. 50/- with him at that time. He took out that amount and gave it to the accused No. 2 who in his turn gave it to Shivaji. Pandurang promised to give the balance of Rs. 350/- on Tuesday the 24th July, 1979 and took an assurance from accused No. 1 that upon the payment to Shivaji, the application filed by him against Pandurang would be withdrawn or filed.
According to both these accused, Pandurang did not turn up at the Police Station at the appointed time on 24-7-1979. Shivaji had come there and was waiting for him. Since Pandurang did not turn up, he stated that he would go for making purchases in the market, that being a Bazar Day. After he went away, the complainant Pandurang came. He was anxious to be relieved of the threat of the application (Ex. 24) hanging on his head. He, therefore, requested accused No. 1 to take the amount of Rs. 350/- to pay to Shivaji and to put an end to the entire saga. Finding that Shivaji was not coming with a view to bring settlement between the parties and to put an end to the matter amicably, accused No. 1 accepted the amount of Rs. 350/- from P.W. 1 Pandurang for being handed over to Shivaji. This according to accused Nos. 1 and 2 was the explanation of the fact that the marked currency notes were found in possession of accused No. 1 when the raiding party allegedly caught him red-handed.
This is the explanation given by both the accused. As I will presently point out they have even justified for this contention from some pieces of prosecution’s own evidence, in addition to the evidence of Shivaji himself, who should have been examined by the prosecution but was examined by the defence in default of the prosecution.
Question is, whether the presumption that arises under S. 4 of the Prevention of Corruption Act, 1947, stands rebutted by this explanation and whether the evidence relied upon by the defence supports this explanation.
6. Examination of the evidence, both oral and documentary led by the prosecution begins. – Evidence is led both by prosecution and defence, both oral and documentary. Defence led oral evidence of Shivaji Khalge D.W. 1 Defence has led no documentary evidence as such, but the one led by prosecution is relied upon even by the defence in support of its own case.
[7 to 12 x x x x x x x x ]
13. This Court’s conclusions regarding the totality of evidence. – I have examined and analysed above the entire evidence. In spite of the nature of the cross-examination of D.W. 1 I would have gone to the extent of holding that if the defence took upon itself the burden of rebutting the presumption arising out of the said S. 4 by leading positive evidence, then the evidence of Shivaji D.W. 1 was quite unconvincing. The feeling entertained by the learned Judge viz. that the witness might have been won over by the defence is not one which is impossible. As I will presently point out, I am not prepared to accept Mr. Samant’s contention that the demand by the accused is an integral part of the prosecution onus in such cases. In my opinion, the plain reading of S. 4 leaves no room for doubt that if at any time previously the burden of proof of ‘demand’ by the public officer concerned was an indispensable pre-requisite, at least after the advent of present S. 4 on the statute book, the necessity is done away with.
But at the same time, courts cannot turn a blind eye to the fact that the nature and extend of onus required to be shouldered by the accused for rebutting the presumption under the said S. 4 is not of the same quantity and quality as is the initial burden upon the prosecution arising out of the presumption of the innocence of the accused. Whereas the test for rebuttal of presumption of the innocence of the accused is of proof beyond reasonable doubt, the extent and nature of burden upon the defence to rebut the presumption under S. 4 is to prove that his defence is reasonably plausible.
In my opinion, the defence version is reinforced, to a large extent, by the statements made by Shivaji D.W. 1 in his cross-examination, but more than that the defence case gets boost from the weakness of the prosecution evidence resulting from an evidence of Pandurang P.W. 1.
This very strong adverse inference which would inevitably arises against the prosecution. (sic)
The result is that the presumption arising out of S. 4 of the Prevention of Corruption Act, by virtue of the acceptance of Rs. 350/- by the accused from P.W. 1, must be held to be sufficiently rebutted by the evidence obtaining on the record.
14. This Court’s conclusions continued and finally stated. – The evidence as a whole is already examined and analysed by me. Let me refer here to the two inexplicable and unintelligible shortcomings in the prosecution evidence.
i) Pandurang P.W. 1 does appear to be a person of criminal or goonda tendencies. – On his own showing Pandurang P.W. 1 had been indulging in the offence arising out of the Prohibition Act. The evidence which has almost peeped out from the record shows that he is a drunkard and has been quite a terror in the village. The incident dated 16th July, 1979, is more or less admitted. He admits that he had gone to the house of D.W. 1 Shivaji. The date is also more or less admitted. If he had gone for some innocuous purpose it is wholly ununderstandable as to why Shivaji made the particular application Exh. 24 at the police station. The factum of the application is an admitted fact.
Moreover, a curious thing is to be noticed in the prosecution evidence. On the prosecution’s own showing accused No. 2 had accompanied D.W. 1 at the Police Station for making the application complaint Exh. 24 against P.W. 1. Still on the date of the inquiry, 22nd July, 1979, when according to the prosecution, accused No. 1 gave a severe beating and slapping to P.W. 1, accused No. 2 invited the witness, Pandurang, for lunch to his place along with the police officer and the story is that he went there and partook of the meals which may or may not have been sumptuous. This conduct of P.W. 1 to some extent belies his grievance against accused No. 1 or accused No. 2. The conduct is quite inconsistent with his grievance against accused No. 2.
It, therefore, follows that the evidence of this witness, P.W. 1, will require a very strong corroboration before the evidence given by him relating to before the trap (till 22-7-1979) is to be accepted.
But what we find here is that the corroboration which is sought to be in the evidence of P.W. 2 is quite unconvincing. Even the evidence of Abdul Aziz, P.W. 5, is quite unconvincing because he makes it a practice of remaining absent at every crucial occasion.
ii) But what must really be considered as a tilting factor against the prosecution are several adverse inferences which must operate against them.
a) Adverse inferences : The first adverse inference which must arise is on account of the non-examination of Gana Kotwal. After all Gana Kotwal is a prosecution witness. He is at the back and call of the prosecution. Abdul Aziz has referred in his examination-in-chief to the statement of Gana Kotwal that Pandurang P.W. 1 was a drunkard and that he must have been inebriated at the time when his presence was called for by accused No. 1 at the place of the inquiry in the School. In fact, it is possible to say that that part of his evidence is not even admissible; but question would remain as to what was the reaction of Gana Kotwal. Gana Kotwal has figured P.W. 1 at several places in the story advanced by the prosecution. For reasons which are just unintelligible he has been kept away from the Court.
b) The second adverse inference which must arise is account of the non-examination of Hariram. The peculiarity of this case is that according to the prosecution Pandurang P.W. 1 went to the house of Shivaji D.W. 1 to make inquiry as to the truth or otherwise of the information given to him by Hariram regarding the allegation of illicit relationship between Pandurang and Balabai w/o. Dagdu. P.W. 1 stated that some kind of wife swapping was suggested by Dagdu behind the back of Pandurang and that such suggestion enraged him. All his evidence on this point is hearsay evidence. Because what Hariram stated to Pandurang, P.W. 1, could be stated only by Hariram. If we would ignore this part of his (Pandurang’s) evidence which is hearsay evidence (which was stated to him by Hariram) there is no explanation in his evidence as to why he rushed to the house of Shivaji on the particular day. He stated that he went there for making the inquiry. What enquiry was contemplated by Pandurang, P.W. 1, would be something upon which light could be thrown only by the evidence of Hariram. Some kind of motive is sought to be pleaded by the prosecution for the complaint Exh. 24. That motive would have been proved by the evidence of Hariram. It is just ununderstandable as to why he has not been examined.
c) Then there are the persons who are named in the application, Exh. 24 and in Exh. 27 who were present at the time of the incident dated 16th July, 1979. These persons have not been examined. Explanation – nil.
Coupled with this evidence of adverse inference is the evidence available on record in the form of the statements made by the various persons before accused No. 1 on 22nd July, 1979. The prosecution has proved those statements. The statements go a long way to prove the fact that the complaint, Exh. 24, was quite a genuine complaint and if that is so it would stand to reason that Shivaji D.W. 1 who was smarting under the insult and humiliation meted out to him, insisted upon some kind of compensation from P.W. 1 through accused No. 1 in order to hush up the entire matter. It thus follows that the totality of the evidence on record gives quite some ligitimacy to the explanation given by the accused.
15. Defence arguments referred to. – In view of the above conclusion arrived at by me, it is really unnecessary to examine some of the arguments advanced by Mr. Samant. For instance, he argued that there was no evidence of any ‘demand’ made by the accused either on 22nd July, 1979, or on 24th July, 1979. His further plea was that there existed no legal corroboration to the evidence given by Pandurang, P.W. 1. He further pleaded that there was no corroboration of the acceptance of the amount of Rs. 50/- by the accused from P.W. 1 through accused No. 2.
I do not propose to spend any time or space for the argument of Mr. Samant relating to the necessity of the corroboration of the evidence of P.W. 1. I am not holding but am assumming that the evidence is not required to be corroborated or that it stands corroborated. The fact, however, remains that there is an explanation given by the accused which, when juxtaposed against the evidence of P.W. 1, P.W. 2 and P.W. 5 in the light of the adverse inferences operating against the prosecution must outweigh the effect of the evidence led by prosecution. Examination of the other points raised by him, therefore, becomes academic.
In this view of the matter, even Mr. Samant’s plea that one accomplice cannot corroborate the evidence of other accomplice becomes quite academic one. In fact, Mr. Samant formally formulated four propositions as the basis of his argument. All of them are covered by his arguments mentioned above the hence it is unnecessary to refer to them once again.
16. Argument that ‘demand’ by the public servant is an integral part of the prosecution onus is rejected. – However, I must deal with the thrust of the argument of Mr. Samant viz. that the independent proof of the ‘demand’ by the accused of the illegal gratification is an integral part of the prosecution onus. In my opinion, the argument has no support either in the plain reading of S. 4 of the Prevention of Corruption Act or in any of the authorities cited by Mr. Samant across the bar.
For this purpose it is necessary to set out the relevant portion of the said S. 4 of the Act. The relevant portion runs as follows :
“4. (1) Where in any trial of an offence punishable under section 161 or 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 an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself or for any other person, any gratification (other than legal remuneration) or any 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 thing 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.
(2) Where in any trial of an offence punishable under section 165A of the Indian Penal Code or under clause (ii) or sub-section (3) of section 5 of this Act, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be pregumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 161 of the Indian Penal Code, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in sub-section (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid, in its opinion, so trivial that no inference of corruption may fairly be drawn.”
The plain reading of the above provision defies an understanding as to how even after the advent of this section ‘demand’ by the public officer of illegal gratification must be proved by the prosecution to the hilt. In fact, in the absence of this section all that would have been required to be proved by the prosecution would be –
a) the demand, b) the acceptance of the amount and c) the purpose of the acceptance.
Now, the position is this that more often than not the acceptance itself would be a proof of the ‘demand’. In many a case it would be a circumstantial piece of evidence. The evidence required to be led by the prosecution for proving the demand, if the acceptance is proved, would be of a very slight character. Quite often than not, the acceptance spells ‘demand’ because no public officer can dream of accepting any moneys from a stranger without there being some pre-existing cause for the same and such cause would amount to ‘demand’.
But that apart, by reading into the section, the necessity of demand, a good deal of injury is caused to the section. The intent of this section is to do away with the proof of certain things which are obvious, but the evidence of which would be very much long finding.
The plain reading of section 4 is that not only the proof of the fact that the purpose of the acceptance is dispensed with, but even the proof of the making of the demand is dispensed with. The very acceptance bears upon itself the stamp of illegal gratification. No one accepts illegal gratification as a motive or reward without there being a nexus between the acceptance and the purpose. The ‘demand’ is implicit in this entire affair.
17. The practice followed and of insisting upon demand by the public servant before the moneys passed on to him – Held – Not relevant – Mr. Sawant invited my attention to the evidence of the panch witness as also of the police officers to show that strict instructions were given to P.W. 1 in the presence of panchas that he was not to make payment of Rs. 350/- to accused No. 1 unless the latter had demanded the same from P.W. 1. According to the learned counsel, this is the practice invariably followed by the police before laying down every trap of this character. According to him, this practice has its origin in the provisions of Section 4 which do not dispense with the proof of demand by the public servant. In my opinion, this argument cannot hold water. Practices are followed by the police or other agencies, many a time, by way of abundant caution. Not infrequently they are followed even after their requirements have become otiose. Practice can be explained by legal provisions, but the legal provisions cannot be interpreted on the basis of a practice. In my opinion, even such an argument needs just to be stated to be rejected.
It may be that in certain cases the proof of demand may play pivotal role. If the prosecution proves the demand made by the public servant and if the acceptance is borne out and is proved beyond reasonable doubt (with the help of anthracene powder etc.) the fate of the public servant will be sealed because the conviction shall have to follow. But that would not be on the basis of section 4. No presumption under section 4 is necessary or useful if both demand and acceptance are proved or are required to be proved. If the demand is made, it will be deemed that it will be a demand for illegal gratification and the presumption envisaged by the said section 4 would be meaningless.
18. Authorities Examined : Quite a few authorities were cited across the bar on various aspects of the evidence. However, I propose to examine the authorities only on two aspects.
i) Whether demand by the public servant is the integral part of the prosecution onus;
ii) The extent and nature of the proof required to be given by the defence to rebut the presumption arising out of Section 4 of the Act.
a) The first authority which Mr. Samant evidently relied as the sheet anchor of his case is the famous Panalal’s case . In that case accused No. 1 was the Public Prosecutor who, allegedly, demanded a sum of Rs. 50/- from the complainant in order that the previous conviction of the complainant would not be brought to the notice of the court by accused No. 1, thus evading stiff punishment for the convict. Accused No. 2 in that case was just an orderly attached to accused No. 1.
Mr. Samant relied upon this authority because allegation even in that case was that accused No. 1, the Public Prosecutor, had demanded the abovementioned illegal gratification. That too was a case of trap where marked currency notes were recovered from one of the two accused. An allegation was made against accused No. 1 that he had made the demand. The Supreme Court found that there existed no corroboration to the testimony of the complainant regarding the alleged demand for money by the accused. The evidence of the complainant on that point was, therefore, held not to be acceptable.
It is this insistence of the Supreme Court upon proof of the demand from accused No. 1 in that case that has prompted Mr. Samant to go on harping upon his argument that the demand is an integral part of the prosecution onus, the presumption under section 4 notwithstanding.
What the learned counsel has lost sight of is that in that case the moneys were not recovered from accused No. 1 at all. It was the orderly who had accepted the amount. There was, therefore, no basis for the presumption arising under section 4 in that case. What is required for section 4 of the Act is the acceptance or obtaining of the amount by the public officer concerned. In that case the amount was neither accepted nor obtained by accused No. 1. In that case, therefore, unless, the demand by accused No. 1 was proved and further, unless pre-arrangement in the nature of conspiracy or abetment between accused Nos. 1 and 2 was proved, no basis existed for invoking the said section 4 at all. This is the crucial and root going difference between the two cases. Insistence of proof of demand in that case, by the Supreme Court, has, therefore, no relevance whatsoever with the principle sought to be propounded by Mr. Samant viz. that the demand is the integral part of the prosecution onus.
This is the only authority relied upon by the learned counsel in support of his abovementioned proposition and it is seen that this authority cited by him does not support him at all.
b) But there is more or less a direct authority for rejecting Mr. Samant’s argument. In V. D. Jhingan’s case, , it has been held that –
“To raise the presumption under S. 4(1) of Prevention of Corruption Act, the prosecution has to prove that the accused has received ‘gratification other than legal remuneration’. When it is shown that the accused has received a certain sum of money which was not his legal remuneration, the condition prescribed by the section is satisfied and the presumption must be raised. Further the mere receipt of ‘money’ is sufficient to raise the presumption.”
The point is the mere receipt of moneys is enough to raise the presumption. Requirement of demand etc. is not necessary at all. That is not only the plain reading of the section, but even the Supreme Court’s interpretation of that section is the one mentioned above and nothing else. In fact, the Supreme Court has relied upon its earlier decision in Dhanvantrai Balwantrai v. State of Maharashtra, , where an identical view was taken. In this connection the Supreme Court has observed as follows :
“It was contended in that case that the more receipt of any money did not justify the raising of the presumption and that something more than the mere receipt of the money had to be proved. The argument was rejected by this Court and it was held that the mere receipt of the money was sufficient to raise a presumption under the sub-section.”
The earlier authority referred to by the Supreme Court in C. I. Emden v. State of U.P., , is to the same effect. Nothing in Panalal’s case has resulted in making any kind of dent upon this settled position of law.
c) The second argument of Mr. Samant, however, is well supported by at least two authorities of the Supreme Court.
In V. D. Jhingan’s case the Supreme Court has observed that (Para 4) –
“The burden of proof lying upon the accused under section 4(1) of the Prevention of Corruption Act will be satisfied if he establishes his case by a preponderance of probability as is done by a party in civil proceedings. It is not necessary that he should establish his case by the test of proof beyond a reasonable doubt.”
To the same effect is the judgment of the Supreme Court in Man Singh’s case, . It has been held in that case, in relation to the rebuttal of presumption under the said Section 4, that it is sufficient if the accused offers probable explanation or defence and that strict standard of proof was not necessary.
It is in this view of the matter that, in my opinion, the explanation offered by the accused viz. that the moneys were accepted by him for payment to the aggrieved party, Shivaji D.W. 1, read with the strong adverse inference operating against the prosecution, must be held to be enough to rebut the presumption arising out of his acceptance of the amount of Rs. 350/-.
Mr. Patil, the Addl. Public Prosecutor, appearing for the State was frank enough to state that if the presumption was rebutted, the evidence on record would not justify conviction of the accused of any of the offences. I must state that his argument centred mainly around the plea of the learned counsel for the defence that the demand was the integral part of the prosecution onus. He did not justify the conviction on the basis of the evidence bereft of the presumption and he was quite right in not doing so. The evidence is already examined above and it is seen that the kind of the evidence the prosecution did lead was unconvincing, but the kind of the evidence it failed to lead made its case very much weaker still. The order of conviction passed against accused No. 1 must, therefore, be set aside.
19. Accused No. 2 has not received any moneys at all. Plea against him is of abetment of accused No. 1. If accused No. 1 is acquitted, conviction of accused No. 2 must also fail.
The appeal, therefore, succeeds. The order of conviction and sentence passed by the Sessions Court against both the accused is hereby set aside and both the accused are acquitted of all the charges levelled and framed against them. The bail bonds to stand cancelled.
20. Appeal allowed.
