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PETITIONER: MOHMOODKHAN MAHBOOBKHAN PATHAN

       Vs.

RESPONDENT: STATE OF MAHARASHTRA

DATE OF JUDGMENT:       03/02/1997

BENCH: MADAN MOHAN PUNCHHI, K.T. THOMAS

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T THOMAS. J.      Appellant  was   a  Sub-Register  in  the  Registration Department under  Maharashtra Government.  The Special judge at Latur  convicted him  under Section  161 IPC  and Section 5(2)  read   with  Section  5(1)(d)  of  the  prevention  of corruption Act,  1947 (’the  act’ for short) for receiving a sum of  Rs. 60/- as illegal gratification from one Shesherao Patil (PW-1).  Appellant was  sentenced to  undergo rigorous imprisonment for  one year  and to pay a fine of Rs.200/- on each count. High Court of Bombay (Aurangabad Bench confirmed the conviction  and sentence  and dismissed the appeal filed by the appellant.      The official  duties  of  the  Sub-Registrar  included, among other  things, receiving  applications  for  certified copies of  registered documents and issuance of such copies. Appellant was  Sub-Registrar of Nilanga Sub Registry office. PW-1 Shesherao  Patil, an employee of postal department, was sin need  of certified  copies of  three sale deeds. When he approached the  appellant he  was told  to submit  necessary applications on  stamp paper and to pay an amount of Rs.20/- for each  certified copy.  PW-1 reported  the matter  to the Anti Corruption  Bureau. A  trap was  arranged to  catch the appellant red-handed. On 8.8.1986 PW-1 went to the office of the appellant  and presented  the applications for copies of the sale deeds which he required and then he paid Rs.60/- to the appellant.  As soon  as appellant  put the amount in his shrift pocket  PW-1 transmitted a signal to the waiting anti corruption squad  and they  rushed to  the office and caught him red-handed.  These  are  the  facts  found  against  the appellant.      There is  no  scope  for  any  dispute  that  appellant received the  amount of  Rs.60/- from  PW-1. In fact learned counsel for  the appellant  did not  dispute  the  aforesaid finding. The  stand of the appellant is that he received the amount as  advance money which he was required to collect as per the  Rules in  force. His further case is that before he could make  any entry in the books he was caught by the anti corruption officials on the premise that he received illegal gratification from PW-1.

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    Appellant, when  questioned by  the trial  judge  under section 313  of the code of criminal Procedure stated, inter alia, thus: "On 7.8.1986 the  complainant came to may office and told  me that  he required copies of three sale deeds. I had asked  him to  submit three  applications in writing and bring Rs.20/-  for each  copy to  be  paid  in  advance.  On 8.6.1986  the  complainant  gave  me  application  and  paid Rs.20/- for  each copy.  Thus in  all he paid Rs.60/-. I was about to  issue receipt but just then people rushed into may office and  therefore  I  could  not  issue  receipts".  His contention was repelled by the trial judge as well as by the High Court.  Learned single  Judge of  the High  Court while confirming the  conviction and sentence has mainly relied on the presumption of law envisaged in Section 4(1) of the Act.      Learned counsel  for the  appellant contended that both courts  failed   to  take   into   account   certain   broad probabilities in  this case  and it  resulted in  the  wrong conclusion  that   he  received   the  amount   as   illegal gratification.      The presumption  of law  contemplated n Section 4(1) of the Act is in para materia the same as the legal presumption mentioned in  Section 20(1)  of the Prevention of Corruption Act, 1988.  Section 4(1)  of the Act enjoins that upon proof of a  certain premise  "it shall  be  presumed,  unless  the contrary is  proved that" he accepted the gratification as a motive or  reward etc. If the primary condition specified in the sub-section is satisfied by the prosecution the court is legally bound  to proceed  on the  footing that  the  public servant/accused has  accepted the  gratification as a motive or reward   for  doing any  official  work  in  exercise  of official functions.  The burden  stands  shifted  would  not become necessary  until prosecution  proves  that  what  the accused has  accepted was gratification. Of course the court can draw  presumption on  premises even de hors section 4(1) of the  Act because Section 114 of the Evidence Act empowers the  court   to  do  so.  But  the  difference  between  the presumption under  Section 114  of the  Evidence act and the legal presumption  under Section  4(1) of  the Act  is  that under former  it is only discretionary for the court to draw presumptions as the court can as well decline from doing so, but under  section 4(1)  it is  incumbant on  the  court  to proceed on  the presumption as the burden stands transferred to the  accused to  prove the  contrary.  (Vide  Dhanvantrai Balwantrai Desai vs. State of Maharashtra, AIR 1964 SC 575).      The  primary   condition  for  acting    on  the  legal presumption under  Section 4(1)  of  the  Act  is  that  the prosecution  should   have  proved  that  what  the  accused received was  gratification. The word "gratification" is not defined in  the Act.  Hence it  must be  understood  in  its literal meaning. In the Oxford Advanced Learner’s Dictionary of Current  English, the  work "gratification"  is shown  to have the  meaning "to give pleasure or satisfaction to". The word "gratification"  is used  in  Section  4(1)  to  denote acceptance of  something to  the pleasure or satisfaction of the recipient.  If  the  money  paid  is  not  for  personal satisfaction  or   pleasure  of  the  recipient  it  is  not gratification in  the sense  it is  used in  the section. In other words  unless the  prosecution proves  that the  money paid  was   not  towards  any  lawful  collection  or  legal remuneration  the   court  cannot   take  recourse   to  the presumption of  law contemplated in Section 4(1) of the Act, though the  court is  not precluded from drawing appropriate presumption of  fact as  envisaged in  Section  114  of  the Evidence Act at may stage.      Here the  crucial question, in the light of the defence

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adopted, is  whether the  amount of Rs.60/- paid by PW-1 was for the  personal satisfaction or pleasure of the appellant. If there  is reason  to doubt whether the money was received as lawful  collection the  benefit of it cannot be denied to the appellant.      In dealing  with that  crucial question we have to bear in mind  certain broad  aspects in  this case. First is that appellant has  been consistently  maintaining the stand that as per the Rules governing issuance of certified copies from a sub  Registry office  an applicant has to pay some charges the amount  of which depends on the length of manuscripts to be  copied,   besides  a  fee  for  search.  Secondly,  PW-1 Shesherao Patil  himself admitted  that  when  he  submitted application for  certified copies he was not aware about the charge s  required for each copy. In his own words - "when I submitted application  for copies  I was  not ware about the charges required  for each copy. As the accused demanded Rs. 20/- for each copy I felt that he was demanding a bribe". So it was  only the  surmise  of  PW-1  and  it  was  not  what appellant told  him. The third feature is, when applications were presented  the appellant asked PW-1 to pay Rs.20/- each copy an when the money was given the appellant counted it in the presence  of all those who were present then and he kept it in his pocket.      In the  above context we may examine the relevant Rules of the  Maharashtra Registration  Manual. Rules  345 to  355 pertain to  "Searches and  inspections, and  grant of copies etc." The  material words  in Rule  346 are  these: "when an applicant for  copy is  tendered, the  application should be required to deposit in advance an amount sufficient to cover the search  fee  for  the  whole  period  mentioned  in  the application." Rule  347(iv) reads thus: "When an application for copy  is tendered,  the applicant  should be required to deposit in  advance an amount sufficient to cover the search fee for  the who  period mentioned in the application." Rule 347(iv)  reads  thus:  "When  an  application  for  copy  is presented personally  and the  fees are  paid, the  probable date on  which the  copy will b e ready for delivery and the serial No.  of application should be endorsed on the receipt and on  the counterfoil."  Rule 348(i) - "A Register of fees paid or  of deposit  or payment  in lump  made by applicants either personally  or by  Money Order on account of searches and copies  should be  maintained in  form Appendix XXXIX in every office."      A  reading   of  the  above  rules  indicates  that  if appellant had  made entries  regarding amount collected from PW-1 in  the Register  prescribed and  if he  had prepared a receipt acknowledging  payment of  the amount of Rs.20/- per copy, there  would not  have been any scope for a contention that the amount paid was for gratification of the appellant.      Learned single  Judge of  the  High  court  highlighted three main  reasons for repelling the plea of the appellant. First is, there is no evidence to show that appellant talked anything to PW-1 about any advance. Second is, appellant put the amount  in his  pocket instead  of  keeping  it  in  the drawer. Third  is. appellant  did not issue any receipt, and on the contrary appellant told PW-1 to come to the office on the next  Monday or  Tuesday to  collect the  copies. On the above reasons learned single Judge concluded that the amount was not paid towards any legal charges.      A closer  scrutiny of  the evidence unfurls a different profile on every one of those three reasonings. When ht sub- registrar told the applicant that he had to bear Rs.20/- per copy, the  mere fact  that he did not use the word "advance" is hardly  sufficient to  conclude that what he required was

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not the  advance amount  which he  was  legally  obliged  to collect from the applicant. Similarly the act of keeping the amount in his pocket is not decisive to conclude that it was intended for  himself. Perhaps that could have been the mode of his  keeping the   money  safe till that day’s amount was closed.  The   third  reason  cannot  be  used  against  the appellant because  as soon as appellant collected the amount the signal  was transmitted  by PW-1  which was  immediately followed up  as members of the anti corruption squad rounded him up.  Hence there would not have been sufficient interval for the  appellant to  made entries  in the  Register or  to prepare the  receipt. Evidence shows that appellant told PW1 to come  to the  office again  on the next Monday or Tuesday only as  an answer  to the  querry made by PW1 as to when he was to go there again for collecting the certified copies.      For the  above reasons we entertain a reasonable doubt, on the  admitted facts,  that what  appellant collected from PW-1 could  have been  the charges  which  he  was  lawfully obliged to collect from any person applying for three copies of the  sale deeds.  In such a situation it is only just and fair that  benefit of the aforesaid doubt is extended to the appellant albeit the last stage of this litigation.      We, therefore, upset the conviction and sentence passed on the appellant and acquit him of the offences charged. His bail bond will stand discharged.