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Section 161 in The Indian Penal Code
Section 4(1) in The Prevention of Corruption Act, 1988
Section 5(1) in The Prevention of Corruption Act, 1988
The Prevention of Corruption Act, 1988
Section 5(2) in The Prevention of Corruption Act, 1988

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Bombay High Court
Sardarkhan Rahimkhan Pathan vs State Of Maharashtra on 16 December, 1981
Equivalent citations: 1982 (1) BomCR 319
Author: R Bhonsale
Bench: R Bhonsale

JUDGMENT R.S. Bhonsale, J.

1. The appellant-accused was charged and tried for having committed offences punishable under section 161 of the Indian Penal Code and under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act. He was sentenced on each of the counts to suffer rigorous imprisonment for one you and to pay fine of Rs. 500/- in default of payment of fine, suffer further rigorous imprisonment for three months. The substantive sentences were ordered to run concurrently.

2. The learned Special Judge, Ahmednagar, who tried the accused had dealt exhaustively the prosecution cases as well as defence and has scrutinised the evidence at great length, in paragraphs 3 to 11. The learned trial Judge has stated the prosecution case in details. In my view, it is not necessary to reproduce all these details in this judgment except to refer to very briefly, the salient features of the prosecution came.

3. The main charge against the accused in the trial Court was that he accepted an illegal gratification of Rs. 200/- on the morning of August 17, 1975 in his office at Bhokar, Taluka Shrirampur from one Nanasaheb Bajirao Chaudhari for entering his name in the Record of Right of two lands, viz., Gat Nos. 360 and 414 situated at Bhokar. He was further charged, as stated earlier, under section 5(2) read with section 51(d) of the Prevention of Corruption Act for accepting the bribe of Rs. 200/- from the complainant by corrupt or illegal means or by otherwise abusing his position as a Talat. The complainant, Nanasaheb Bajirao Chaudhri, and agriculturist in village Bhokar had filed Regular Civil Suit No. 112 of 1975 against his father Bajirao, younger brother and his mother for partition of two lands bearing Gat No. 360 and 414. The total area of the lands is about 8 acres and the complainant had claimed 1/4 share in the lands. There was a compromise decree passed on June 30, 1975 in the suit and according to the same, the complainant Nanasaheb was given his share of 2 acres and 6 gunthas of lad from Gat No. 414. After getting a certified copy of the decree, Advocate Dokhe who had appeared for the complainant, prepared an application on behalf of the complainant for entering his name in the Record of Rights according to the decree and sent the application to the Talati along with the certified copy of the decree under registered post with A.D. The complainant also approached the Talati and enquired about his application. It is the prosecution case that at this time, the accused has told the complainant that he sold require Rs. 700/- for expenses. The complainant told him that the amount was excessive. The accused thereupon told the complainant to bring permission from the Tahsildar for entering his name since in his opinion as per the decree, the gets or the blocks were to be broken and this would be contrary to the scheme of Consideration Act and Tahsildar's permission was necessary under section 85 of the Land Revenue Code for making partition. Thereafter, the complainant and his Advocate Dokhe, approached the Tahsildar who informed them that the matter will be sent to the Circle Officer Thanekar (P.W. 6) thereafter held an enquiry and submitted his report (Exhiibt 22) to Tahsildar (P.W. 11) gave two copies of the order to the complainant on August 14, 1975, Advocate Dokhe prepared an application (Exhibit 35) and gave it to the complaint for giving the same to the accused along with the order of the Tahsildar. When the complainant approached the accused with the order of the Tahsildar, it is the case of the prosecution that the complain ant was told by the accused that he would require Rs. 200/- for making entire. Even though the complainant is alleged to have told the accused that whatever was necessary was done and there was no occasion for the accused to ask for money, the accused maintained that he would require the money for doing the work.

4. On August 16, 1975, the complainant met his Advocate and again narrated the conversation he had with the accused. Advocate Dokhe seems to have advised the complainant that when the Tahsildar has passed an order there was no need to pay the accused and that he could go to the Anti Corruption Bureau at Ahmednagar. The complainant, therefore, went to the Enti-Corruption Bureau and Inspector Patil recorded his complaint. The Chief Judicial Magistrate granted permission to Inspector Patil to investigate into the complaint under section 5-A of the Prevention of Corruption Act. Inspector Patil collected two panchas (one Jagannath Rau Patil and the other Bajirao Dadu Tholdkar) on the same day and took the complainant and the two Panchas along with three constables by a police van to the Dak Bungalow at Deolali Prevara.

5. It is further the prosecution case that on that on the next day, i.e. on 17th Inspector Patil Gave necessary instructions to the complainant and the panchas. A usual demonstration about the use of the anthracite powder and ultra violet light in the trap was also held. Thereafter about 9 or 9-30 a.m. Inspector Patil and panchas proceeded to the office of the accused. As per the instructions of Inspector Patil, the complainant and panch Jagannath Patil went to the office of the accused. After some conversion, as to why the complainant did not come on the earlier night, the accused enquired of the person accompanying the complainant. The accused also enquired whether he knew reading and writing. The accused asked panch Patil to read Mutation Entry No. 827 from the Mutation Register. The accused then told the complainant that his work was done and asked him to give his money. The complainant took out the notes of Rs. 200/- from his pocket and gave it to the accused. Immediately thereafter, the complainant kept the accused engaged in conversation with him and the panch Patil went out and informed the constable. The reading party, headed by Inspector Patil, rushed into the officer and asked the accused to produce the amount after disclosing his identity. The complainant told that the money was lying on the table under the register. Thereafter, a usual panchanama was drawn-up and certain documents including the complainant's application, certified copy of the decree, an application made by Advocate Dokhe which were found on the table were seized under a panchnama. The original Record of Rights registers were also seized and two extracts of Gat Nos. 360 and 414 were taken from the accused. Thereafter, Inspector Patil sought sanction to prosecute the accused and a charge-sheet came to be filed on 21-9-1976 in the Court of the Special Judge, Ahmednager.

6. The prosecution in all examined 11 witnesses but the most important witnesses are the complainant himself (P.W. 1), Circle Officer Thanekar, panch Patil and the Investigating Officer Inspector Patil. As far as the defence of the accused is concerned, he flatly denied that he demanded Rs. 700/- to start with for doing the work of the complainant. He however, admitted that on the day in question i.e. August 17, 1975, he did accept the amount of Rs. 200/- but that amount was for investing in Small Saving Scheme by the complainant. The defence of the accused was that he never demanded any money from the complainant for making entry in the Record of Rights. Money which was given by the complainant on the day in question was for making investment in Small Saving and not for making entry in the Record of Rights.

7. This evidence was carefully gone into and scrutinised and assessed by the learned Special Judge, Ahmednagar. The learned Special Judge had also discussed the evidence exhaustively after noting the special features of this case. The finding and conclusion arrived at by the learned Special Judge was that the complainant was fully corroborated by cogent and independent evidence of all important aspects of the case, i.e. filing of the suit and the compromise decree, first demand of the accused for Rs. 700/- and the actual trap when Rs. 200/- was recovered. The learned Special Judge also believed the evidence of Advocate Dokhe, panch Patil and Inspector Patil. The learned Special Judge also held that on all important points, the complaining was independently and sufficiently corroborate. His further finding was that since the accused had admitted of accepting the amount, the presumption under section 4(1) of the Prevention of Corruption Act was available to the prosecution.

8. According to the learned Judge when the acceptance of the amount is proved, a statutory presumption arises under section 4(1) of the Prevention of Corruption Act that the amount was accepted as a bribe unless the contrary is proved by the accused. The learned Judge, therefore, discussed in his judgment in paragraphs 34 to 42 that accused had not discharged his burden satisfactory and, therefore, the prosecution proved its case beyond reasonable doubt that accused had accepted the amount of Rs. 200/- as a bribe for making entries in the Record of Rights and not towards the Small Saving Scheme. The learned Judge also placed reliance on judgment of the Supreme Court in Jotiram Laxman v. State of Maharashtra, . In that case, the accused who was Talati was convicted for having accepted an amount of Rs. 50/- from the complainant even though that amount was for purchasing Small Saving Certificate for the complaint and not for doing the work of the complainant of entering his name in the Record of Rights. The learned Judge also relied upon the decision in Manohar v. State of Maharashtra, (1973) Maharashtra Law Journal, Page 921 where it was held that even if the accused accepts money for depositing in post office in the name of the complainant as regard for effecting entry in Mutation Register, he is guilty under section 161 of the Penal Code. Following the ration of this decision, the learned Special Judge held that even if it is held that the accused has accepted the money for depositing in small savings, he would still be convicted. The finding of the learned Special Judge, however, is that the accused did not accept this money towards investing in small savings in the name of the complainant. For all these reasons, the learned Special Judge held accused guilty under section 161 of the India Penal Code and also under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act and the accused was sentenced as referred to above.

9. It is these findings and conclusion which are challenged in this appeal on behalf of the accused by the learned Council Shri A.C. Agarwal. The learned Council submitted that once the accused admitted that he had accepted the money, the statutory presumption under section 4(1) of the said Act arises. The learned Council further submitted that the only question in this case was whether the statutory presumption raised under section 4(1) of the Act was rebutted by the accused satisfactorily and whether he has discharged the burden satisfactorily.

10. At this stage, it will be necessary to refer to section 4 of the said Act which raises the presumption when public servant accepts a gratification (other than legal remuneration) that it is an offence punishable under section 161 or section 165 of the Indian Penal Code or it is an offence referred to in Clause (a) or Clause (b) or sub-section (1) of section 5 of the 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), it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification as a motive or reward such as mentioned in the said section 161. Now, distinction between section 5(1)(a) and (b) and (5)(1)(d) is too well-known to be emphasised here. Under section 5(1)(a) and (b) of public servant accepts any gratification other than his legal remuneration as a motive or reward such as is mentioned is section 161 of the Indian Penal Code or if he accepts or obtains for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have any connection with his official connection. Under section 5(1)(d) if a public servant, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing, the public servant is said to have committed an offence of criminal misconduct. Now, the presumption which is available to the prosecution is only under section 161 of the Penal Code and section 5(1)(a) and (b) of the Prevention of the Corruption Act. In other words, the presumption is not available for the offence under section 5(1)(d) read with section 5(2). This position was made clear by the Supreme Court in V.K. Sharma v. State, Delhi Administration, . The Supreme Court observed as follows :---

"The presumption arising under section 4 when a pub public servant accepts gratification other than legal remuneration is not available to the prosecution for proving the charge under section 5(2) with reference to section 5(1)(d)".

Therefore, when it is stated that once accused admits of having accepted the money, which is other than his legal remuneration, a statutory presumption arise only under offences punishable under section 5(1)(a) and (b) of the said Act and under section 161 of the Indian Penal Code and the presumption is that the public servant has accepted this gratification other than his legal remuneration as a motive or reward such as mentioned in section 161 of the Penal Code.

11. The main question in this appeal is whether the amount admittedly accepted by the accused was other than his legal remuneration as motive or reward for doing some work for the complainant or whether he has accepted the amount for investing in Small Saving Scheme on behalf of the complainant. The learned Special Judge has, as stated above, held against the accused and concluded that the amount was accepted as bribe and not for investing in the Small Savings. His reasons for coming to this conclusion can be summarised as follows.

12. According to the learned Special Judge, there were many circumstances in the prosecution evidence which shows positively that the accused had accepted the amount as a bribe for making the entries in the Record of Rights. These circumstances were as follows :

(1) Opportunity for the accused for taking bribe i.e. an application made by the complainant for making entry in the Record of Rights on the basis of the compromise decree.

(2) Accused demanded Rs. 700/- initially and thereafter Rs. 200/- and both these demands were corroborated by Advocate Dokhe and the allegations made in the complaint.

(3) When the accused was trapped, his first reaction was not to say that he has accepted this amount towards Small Savings.

(4) No record or receipt book was found indicating that the intention of the accused was to take the amount towards Small Savings.

(5) That no talk took place between the accused and the complainant that the amount was towards Small Savings.

(6) In the panchanama, there was no reference to small savings form or receipt books towards Small Saving, being found.

According to the learned Special Judge, if all these circumstances were considered, there could be no doubt that the accused had accepted the amount of Rs. 200/- from the complainant as a bribe for entries in the Record of Rights and not towards the Small Savings.

13. In this connection, the main controversy is whether the accused accepted the amount as a barbel or towards investment in Small Savings Scheme on behalf of the complainant. Once the statutory presumption under section 4(1) arises, then the question is whether the accused has discharged the burden. The accused had, in this case, examined 4 witnesses, and one of the witnesses has stated that the accused used to cone and invest amounts into post-office. The main defence of the accused was that this amount was given by the complainant for investing in Small Savings. According to the accused, his entire conduct was of an innocent and straight forwards nature. When the complainant initially approached him for making entries the accused informed him that if the entries were to be made according to the compromise decree, it would run counter to the provisions of Prevention of Consolidation Act. He, therefore, gave a note (Exhibit 16 and asked the complainant to bring a certificate from the Mamlatdar under section 85 of the Maharashtra Land Revenue Code. It is also the case of the accused, and which has been emphasised by Shri A.C. Agarwal, the learned Council for the accused, that as soon as the certificate was brought by the complainant, entries to that effect were made by the accused in the Mutation Registration on August 14, 1975. Now, admittedly on that day, no money was offered by the complainant.

14. It is the prosecution case that the accused asked the complainant to pay Rs. 200/- but the complainant said that he had no money and promised to pay later on. Again at the time of the trap panchanama, the conversation deposed to by the compliant as well as by panch Patil was that the accused enquired of panch Patil whether he could read and write and made him read the entries in the Mutation Register which was already done. It has come in the evidence of the complainant that as soon as he showed the certificate from the Mamlatdar as required under section 85 of the Maharashtra Land Revenue Code, the entry was made in favour of the complainant on the same day. It is argued on behalf of the accused that if the entry was made in the Mutation Register on 14th itself, and the complainant had left the office of the accused, it cannot be said that when three days thereafter the complainant came to the office of the accused, he came to pay the amount of bribe to the accused. It is submitted by Shri Agarwal emphatically that the prosecution has showed no connection between entering the name of the complainant in the Mutation Register and accepting the amount 3 days afterwards. The acceptance of amount is capable of both the interpretations depending on the preponderance of probabilities. This, in substance, is the defence of the accused. We have, therefore, to find out whether the accused has discharged the burden satisfactorily after the presumption under section 4(1) of the Prevention of Corruption Act, arose in favour of the prosecution.

15. What kind of burden the accused has to discharge in such a case has been laid down various decisions of the Supreme Court is now well settled. The burden of proof lying upon the accused under section 4(1) of the Prevention of Corruption Act will be discharged if he establishes his case by a preponderance of probability as is done by a party in civil suit. It has been held in V.D. Jhingan v. State of Uttar Pradesh, that it is not necessary that the accused should established his case by test of proof beyond reasonable doubt. This guideline laid down by the Supreme Court has been further referred to and reiterated in several other decisions, including V.K. Sharma v. State, Delhi Administration, (supra) where the same principle is re-affirmed, and in this decision as referred to above, distinction was made as to when presumption arising under section 4(1) was available to the prosecution. Presumption arise when accused accepts gratification other than his legal remuneration as a reward or motive. In other words, there must be necessary convention between the two. The presumption which is available to the prosecution under section 4(1), therefore, will stand rebutted or stand discharged after the accused satisfactorily shows that though he has accepted the amount, there was no connection whatsoever between doing the work as a motive or reward and accepting motive. This aspect would be considered a little later.

16. In Mahesh Prasad Gupta v. State of Rajasthan, A.I.R. 1974 S.C. page 773, this principle was again re-affirmed by the Supreme Court having observed as follows :

"If the prosecution proves the acceptance of the amount by the accused and the amount does not represent legal remuneration in any form or of any kind, the presumption must be raised under the section and the accused must establish that the amount was not accepted by him as a motive or reward such as is mentioned in section 161, Penal Code, The accused can establish his case by preponderance of probabilities, that is to say, he need not prove his case beyond a reasonable doubt."

17. In State of Maharashtra v. Prakash Vishnurao Mane, 76 Bombay Law Reporter, Page 217, a Division Bench of this Court also held that if prosecution proves acceptances of the amount by the accused and the amount does not represent legal remuneration in any form or of any kind, the accused must establish that the amount was not accepted by him as a motive or reward such as is mentioned in section 161 of the Penal Code. The accused can established his case by preponderance of probabilities, that is to say, he need not prove his case beyond a reasonable doubt.

18. In one of the latest judgment in Man Singh v. Delhi Administration, , the principles of preponderance of probabilities has again been re-affirmed where it is again observed by the Supreme Court that it is well settled in such cases the accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which is probable and once this is done, the presumption under section 4 stands rebutted.

19. Bearing these guidelines in mind, it is now to be found out whether the accused has discharged the burden or offered a plausible, probable and reasonable explanation of his having accepted Rs. 200/- on August 17, 1975 in this regard. Certain salient features of this case needs to preferred to again.

20. As soon as the complainant came with an application, for entering his name in the Record of Rights, as per the compromise decree on an application preferred by Advocate Dokhe, though it is the prosecution case that accused demanded Rs. 700/- for expenses, admittedly, the accused has handed over a note (Exhibit 16) to the complainant asking him to bring permission from the Tahsildar under section 85 of the Maharashtra Land Revenue Code. As per the provisions of section 85, whenever a holding has to be partitioned on a decree of a Civil Court or on application of co-holder such partition is always subject to the provisions of Bombay Prevention of Fragments and Consolidation of Holdings Act, 1947. If in any holding there are more than one co-holder, any such co-holder may apply to the Collector for partition of his share of holding. Now, it has come in the evidence of Circle Officer Thanedar that such permission are given by Tahsildar. Accused, therefore, asked the complainant to bring this permission under section 85 of the Maharashtra Land Revenue Code.

21. In my opinion this is an important circumstance and it goes long way to prove the innocent conduct of the accused. The accused knew that without permission from the Tahsildar, no such entries can be made and, therefore, he bona fide told the complainant to bring such a certificate. If the accused at that point of time, wanted to extract a bribe out of the complainant, his representation could have been otherwise but the impression he gave to the complainant was that if the complainant obtained such a permission from the Tahsildar, then the accused would enter his name in the Mutation Register and/or Record of Rights. The complainant, therefore, goes to the Tahsildar obtains the permission and as soon as the certificate is brought, the accused has in fact made the entry in the Mutation Register on August 14, 1975 itself. In paragraph 27 of the judgment, the learned Special Judge has observed that "he was not knowing that the entry was made on 14-8-1975". I have carefully gone through the evidence of the accused that on the day the complainant showed the permission of the Tahsildar to the accused, the accused made entry on the same day. Whether it was made in the Mutation Register or in the Record of Rights is not of vital significance because on 14-8-1975 itself, the complainant was under the impression that his work was done. The learned Judge has observed that the application of the complainant was for making entry in the Record of Rights and Record of Rights are quite different from the Mutation Register. The difference between the two are well-known and to that extent, the learned Special Judge is right but when the entries were made on 14th itself, it is difficult to accept that the complainant was told that his name was entered in the Mutation Register and not in the Record of Rights. Even at the time of the trap, there accused had made Pancha Patil to read the entries. Therefore, the complainant had known that on 14th itself his work was done. Then the question is whether the complainant would again go for offering a bribe of Rs. 200/- to the accused. In any case, it must be observed here that the prosecution has flailed to establish the connection between acceptance of illegal gratification other than his legal remuneration on August 17, 1975 and the work already done on August 14, 1975.

22. It is also pertinent to take into account at this stage the probability or the reasonableness of the defence of the accused. The concept of preponderance of probabilities emphasized by the Supreme Court in regard to the burden of the accused has to be found in the context of the circumstances of each case. Firstly, the accused was an authorized agent to collect investment in Small Savings. The record shows that circulars were issued by the Revenue Department and there were targets fixed for Shrirampur Taluka, Ahmednagar District. All Circle Officers and Talatis were directed to intensify the drive for Small Savings during the period of emergency. Defence evidence also shows that the accused was also an authorised agent to collect the amounts and deposit them in the post office. The certificate issued in favour of the accused was valid until the year 1977. The accused admittedly was already done the work of the complainant on August 14, 1975. As I have observed earlier, the prosecution has not been able to show and prove that there was necessary connection between the work already done and the amount subsequently accepted by the accused. Now, if the accused puts forward a theory or a reasonable or problem explanation that the work of the complainant has already been done and there was no occasion for the complainant to pay a bribe of Rs. 200/- and the complainant had given that amount for investing in Small Savings, such an explanation cannot be brushed aside. It is true that if the work was already done on August 14,1975, there would be no occasion for the complainant to make a complaint to the Anti Corruption Bureau and no occasion again to lay a trap against the accused. The prosecution, therefore, naturally proceeds on the assumption that because bribe was demanded by the accused on 14th itself, the trap was arranged. However, as far as presumption which arises under section 4(1) is concerned it arises when the amount is accepted by the accused as illegal gratification other than his legal remuneration as motive or reward for work done. What Court has to find out is whether the burden which is raised has been satisfactorily discharged or not. This very circumstance referred to above that there was no connection between the work done by accused on August 14, 1975 and the amount which was accepted by him on August 17, 1975 not as a motive or reward for doing his work goes long way in favour of the accused. No hard and fast rule can be laid down as to when an accused accepts the amount of bribe, either before doing the work, at the time of doing the work or after doing the work. Generally, the accused would accepts the amount of bribe before doing the work atleast at the time of doing the work because there is no guarantee that after the work is done, the complainant would pay the bribe amount to the accused. In this case accused had already done the work on 14-8-1975. The complainant was not aware that his name was not entered in the Record of Rights but only in the Mutation Register. There is no basis for accepting the prosecution case that because his name was not entered in the Record of Rights, the complainant again came on August 17, 1975 to pay the amount of bribe when the trap was laid. In my opinion, therefore, the prosecution has not established that the acceptance of money of August 17, 1975 was his reward for doing the work which has already been done on August 14, 1975. Though the statutory presumption arises, in my view, the circumstances enumerated above offer a probable, plausible and a reasonable explanation and even if is held that two interpretations are possible, one that is favourable to the accused must be accepted on the well established principles of canons of construction of statutes.

23. Now, the learned Special Judge has rejected the defence arguments of the lower Court on many grounds. One of the main grounds taken into consideration by the learned Special Judge is that the complainant had not given the amount to the accused merely for making an entry in the Mutation Register as the accused was bound to make entry as per the orders of the Tahsildar. Indeed, this circumstance itself is in favour of the accused. The accused had given a note (Exhibit 16) to the complainant on the basis of which the Complainant produced permission from the Mamlatdar under section 85 of the Maharashtra Land Revenue Code. If as per this certificate, entries in the Mutation Register were made on same day, i.e. August 14, 1975, it follows that the accused was bound to make entries in the Record of Rights also. It indicates that once entries are made in Mutation Register, a pencil entry has to be made in the Record of Rights and the accused has no choice but to make entries in the Record of Rights also. Therefore, the circumstance that entries wee made only in the Mutation Register and not in the Record of Rights does not assist the prosecution.

23-A. The second important circumstance taken into account by the learned Special Judge is that if this amount was taken for investment in Small Savings, then no receipt book for having accepted this amount was found on the table of the accused. The Pancha and the Police Inspector have admitted in their cross-examination that there were drawers to the table as well as there were cupboards in the office of the accused. The Police Inspector did not take search of the drawers or the cupboards. Now. The Panchanama indicates that whatever was found on the table of the accused were seized. Admittedly, no search was taken on the drawers or cupboards. Now, receipt book is an important document and as the experience goes, receipt books are not kept either on the table or in the open place, but they are usually kept in drawer or cupboard and can taken out when someone comes to the office of the Talati to deposit money in small savings. This circumstance is also not against the accused. Thirdly, one more important circumstance is that the money was lying on the table under the register. Now, if the accused has accepted this amount as a bribe, he would not keep the money on the table but keep it in the pocket or in some other safe place. On the contrary, the probability seems to be that the accused had kept the money on the table which he had accepted for Small Savings and thereafter he was to take out the form, and give a receipt to the complainant. The complainant, however, had not given an opportunity to the accused to take out the form and receipt book because according to the evidence of the complainant, his instructions wee that the accused was to be kept engaged in conversation until the raiding party came in the office. As he was kept engaged in talking with the complainant and even though instructions were that the complainant should go out and make signal, it was the pancha who made a signal. In my opinion, the accused had no time to take out forms and receipt book so as to issue them to the complainant for having accepted the amount for Small Savings. This circumstance, therefore, is not against the accused.

24. The accused had examined 4 witnesses in defence and one Galande (D.W. 1) had deposed to that he was the village post master in Bhokar and according to him, there was an arrangement in his post office for opening savings banks account. He has also stated that the accused was coming to him for depositing savings amounts of his own and which he used to collect from others in the village. He had also stated that some of the villagers who wanted to open accounts used to come with the accused. Now, the learned Special Judge has held that this evidence does not prove that the accused was the agent of the post office. The accused has never stated that he was the agent of the post office. This evidence also supports the defence of the accused that he was not only entrusted with the work of Small Savings but also was authorized to make deposits in the post office.

25. Another circumstance taken into account by the learned Special Judge is that after Inspector Patil went into the office of the accused and on enquiries being made by Inspector Patil, the accused kept mum and did not say anything about the acceptance of the amount for small savings. In my view the accused must have got scared and even trembled due to the presence of the Anti-Corruption Inspector and would not have been in proper state of mind to offer any explanation at all.

26. In my view, therefore, all these circumstances which I have enumerated above are capable of interpretation that the accused has offered probable explanation and discharged the burden satisfactorily, and has rebutted the presumption under section 4(1). However, that is not all because the prosecution has relied on two decisions, both of the Supreme Court as well as this Court. In support of the proposition that even if accused has taken the ground that the amount of Rs. 200/- was towards small savings and not as a motive or reward and if there is any connection between doing the work and accepting the amount, the accused must be convicted for having committed an offence under section 161 of the Penal Code and section 5(1)(a) and (b) of the Prevention of Corruption Act. The prosecution relied on the decision of the Supreme Court in J.L. Surange v. State of Maharashtra, A.I.R. 1973 S.C. Page 356. Five or six circumstances are mentioned in the said judgment on the basis of which the accused came to be convicted. However these facts can be distinguished inasmuch as in this case, the accused has accepted the money in the office and not in the house of a third person and the accused did not ask the complainant for an application signed by the complainant for purchase of the certificate which was an essential thing. What has been held by the Supreme Court in the case cited above is that there seems to be some connection in doing the work and accepting the amount alleged to be bribe amount. The facts of that case also indicate that the money in question was paid to the accused in order to obtain a copy of extract and ensure entry of Surange's name against Plot No. 78. Now, in this case, as stated earlier, the week of entering of the complainant in Mutation Register was already done and there in no connection between the work done and the acceptance of the money. Similarly, the ruling in the case of Manohar v. State of Maharashtra, 1973 Maharashtra Law Journal Page 931 can also be distinguished. In that case, the accused Talati also admitted the receipt of currency note of Rs. 100/-. The question was what her the money was for his own benefit for effecting the necessary entries in the Mutation Register. It is observed by Vimadalal, J., as follows :

"I have, therefore, no hesitation in holding that if the demand that Janardan should pay Rs. 100 for being deposited in the post office was not independent of the work for which Janardan had approached the accused, but was a motive or reward for the accused doing that work, the accused has still committed an offence under section 161 of the Indian Penal Code."

In that case, when the complainant approached the accused for entry in the Mutation Register to be changed, the accused demanded Rs. 100/-. Therefore at the time of the payment of Rs. 50/- the accused had not done the work for which the money was to be paid and thereafter the trap was laid. Admittedly, no work was done in that case prior to the payment of the amount. Therefore, this ruling is distinguishable on the facts inasmuch as in the present case before the amount was paid, the work was already done and there was no occasion to accept the amount by way of motive or reward for doing the work.

27. I have already rejected the reasons of the learned Special Judge that entry was made only in the Mutation Register but not in the Record of Rights and, therefore, there was connection between the work to be done and the amount accepted. Admission by the complainant himself is that his work was already done and in my opinion, there was no connection between the work done on August 14, 1975 and the amount accepted on August 17, 1975. Acceptance of the amount by the accused on August 17, 1975 cannot, therefore, be regarded as a motive or reward for doing that work. In my opinion, therefore, the accused has satisfactorily discharged the burden by offering a reasonable and probable explanation. The preponderance of probabilities are in favour of the accused. Since the explanation offered by the accused is found to be probable and reasonable, I give the accused the benefit of doubt an acquit him of having committed offences punishable under section 161 of the Indian Penal Code and under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act.

21. The appeal is, therefore allowed. The order of conviction and sentence passed by the learned Special Judge, Ahmednagar in Special Case No. 3 of 1976 is quashed and set aside. The bail bond of he accused to stand cancelled and the amount of fine, if paid, by the accused shall be refunded to him.