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PETITIONER: CHATURDAS BHAGWANDAS PATEL.

       Vs.

RESPONDENT: THE STATE OF GUJARAT

DATE OF JUDGMENT06/04/1976

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH SHINGAL, P.N.

CITATION:  1976 AIR 1497            1976 SCR  (3)1052  1976 SCC  (3)  46

ACT:      Indian Penal Code (Act 45 of 1860), s. 161-Scope of.      Prevention of  Corruption Act (2 of 1947), ss. 4(1) and 5(1)  and   (2)-Statutory  presumption   under-Rebuttal   by accused.      Code of  Criminal Procedure  (Act 5  of 1898)  s.  537- Charge under  ss. 161  and 34  I.P.C.-Co-accused  acquitted- Conviction under s. 161, simpliciter-Validity.

HEADNOTE:      The appellant  (a Head Constable) and the Sub-Inspector of Police  were charged with offences under s. 161 read with s. 34  and s.  165A, IPC,  and under  s. 5(2)  read with  s. 5(1)(d) Prevention  of Corruption  Act, 1947.  The appellant admitted the  receipt of money and its recovery from him but stated that  PWS 1 and 4 came to the Police Station, that PW 4 claimed  to be a relative of the Sub-Inspector and that it was PW  4 and  not PW  1 who gave him the money to be handed over to  the Sub-Inspector  who was  absent. The prosecution adduced evidence  to show  that the two accused arranged for the production  of PW  1 at the Police Station in connection with the  investigation of a charge of abduction of a woman; that the Sub-Inspector directed the appellant to take charge of PW 1 when he arrived; that the appellant demanded a bribe from PW  1 to  save himself  from the  charge as well as the indignity of being handcuffed, locked up and paraded; that a trap was  set the  next day when PW 1 paid the amount in the presence of  PW 4 and that the amount was recovered from the appellant in  a raid.  The trial  court acquitted  both  the accused, but  on appeal,  the High  Court acquitted the Sub- Inspector but  convicted the  appellant under s. 161 IPC and s. 5(2). Prevention of Corruption Act.      In appeal  to this  Court, the appellant contended, (1) that PW  1’s evidence regarding the payment of gratification should not  be accepted  without independent  corroboration, (2) that the statutory presumption under s. 4(1). Prevention of  Corruption   Act  that   the  appellant   accepted   the gratification as  a motive or reward such as is mentioned in s. 161,  I.P.C., should  not be drawn against the appellant, because, (a)  there was,  in  fact,  no  complaint  whatever against PW  1 in respect of the commission of the offence of abduction; and  (b) the  effect of the acquittal of the Sub-

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Inspector was  that the money could not be held to have been paid to  the appellant  pursuant to any 161 demand of bribe; and (c) that since the two accused were charged under s. 161 read with  s. 34,  on the acquittal of the Sub-Inspector the appellant could not be convicted under s. 161 simpliciter.      Dismissing the appeal, ^      HELD:  (1)   The  testimony   of  PW   1  stood   fully corroborated by other independent and reliable testimony and hence could  be safely  acted upon. The defence version that it was PW4 who paid the money was falsified by the fact that no anthracene  powder, with which the notes used in the raid were smeared,  was found on PW 4’s hands. while it was found on the hands of the accused and PW1. [1057E; 1059B-C]      (2)(a) The  mere fact that no complaint of abduction or of any  other offence had been made or registered against PW 1 could  not take  the act of the appellant-in demanding and accepting the  gratification from PW 1 in the context of the threat by  the appellant-out  of the  mischief  of  s.  161, I.P.C. The  section does not require that the public servant must,in fact,be in a 1053 position to  do the  official act,  favour or service at the time of  the demand  or receipt  of  the  gratification.  To constitute an offence under this section it is enough if the public servant  who accepts  the gratification  takes it  by inducing a  belief or  by holding  out that  he would render assistance to  the giver, with any other public servant, and the giver  gives the  gratification under that belief. It is also  immaterial   if  the   public  servant  receiving  the gratification does not intend to do the official act, favour or forbearance  which he  holds himself  out as  capable  of doing. The  last Explanation  and Illustration  (c)  to  the section show that the person who receives a gratification as a motive  for doing  what he  does not intend to do, or as a reward for  doing what  he has  not done,  comes within  the purview of  the words "a motive or reward for doing". When a public servant,  being a police officer, is charged under s. 161,  I.P.C.,   and  it   is  alleged   that   the   illegal gratification was  taken by  him for  doing or  procuring an official act,  the question  whether there  was any  offence against the  giver of  the gratification  which the  accused could have  investigated or  not, is  not material  for that purpose. If  he has  used his  official position  to extract illegal  gratification   the  requirement   of  the  law  is satisfied. [1059F-1060E]      Mahesh Prasad  v. State  of  U.P.  [1955]  1  SCR  965; Dhaneshwar Nariam  Saxena v.  Delhi Admn.  [1962] 3 SCR 259; Bhanuprasad Hariprasad  Dave and  anr. v.  State of  Gujarat [1969] 1  SCR 22  and Shiv Raj Singh v. Delhi Administration [1969] 1 SCR 183, followed.      In the present case, on the day of the payment the Sub- Inspector was  away and the appellant was actually in charge of the  police station.  It was he who called PW 1 and asked if he  had brought  the money  and when  PW 1 replied in the affirmative  but   hesitated  to   hand  over   the   money, represented that the money should be handed over to him, and that he would pass it on to the Sub-Inspector, and that PW 1 would have nothing to fear. [1059C-F]      (b) The  only effect  of  the  acquittal  of  the  Sub- Inspector is  that it cannot be urged that the Sub-Inspector had demanded  any bribe  from PW  1. It  does not in any way discount the  evidence that  PW 1  was called  to the police station and  was informed  by the appellant that a charge of abduction was  against him  and that  the appellant demanded

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and received a bribe from him. [1058H-1059B]      (c) The burden on the accused to displace a presumption is not  as onerous  as that  on the prosecution to prove its case, but  the accused  has  to  discharge  it  by  adducing evidence, circumstantial  or direct,  which establishes with reasonable probability  that the  money was  accepted by the accused other than as a motive or reward such as is referred to in  the section.  In the  present case,the  appellant had failed to  show such a balance of probability in his favour. [1060E-G]      (3) The  language of  the charge shows that in addition to the charge under s.161 read with s. 34, the appellant was in substance  also being  charged under  s. 161 simpliciter. All  the   material  circumstances  appearing  in  evidence, constituting an offence under s. 161, were put to him during his examination  under s. 342, Cr.P.C. The objection that he could not  be convicted  under s.  161 simpliciter  was  not raised in  any  of  the  courts  below.  No  prejudice  has, therefore, been  caused to  him because  of  this  technical defect of  there  being  no  express  charge  under  s.  161 simpliciter, and  the irregularity if any, is cured under s. 537, Cr.P.C. [1061B-D]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 250 of 1971.      Appeal by  special leave  from the  judgment and  order dated the  1st July,  1971 of  the  Gujarat  High  Court  at Ahmedabad in Criminal Appeal No. 33 of 1970.      N. N. Keswani, for the appellant.      S. N. Anand and M. N. Shroff, for the respondent. 1054      The Judgment of the Court was delivered by      SARKARIA, J.  The appellant  in this appeal was Accused No. 2  in the trial court. He was a Head Constable (Jamadar) posted at  the relevant  time in  Police Station, Zinzuwada. His co-accused  (No. 1) was a Police Sub-Inspector posted in the same  station. One  Bai Sati,was  alleged to  have  been abducted by  Ghanshyamsinh alias  Ghanuba. She  was  in  the Police Station on the 10th and 11th of July, 1968. Accused 1 recorded her  statement and  thereafter asked one Fateh Sinh (PW 7)  to bring  and produce his cousin Ghanshamsinh. Fateh Sinh accordingly  produced Ghanshamsinh  before Accused 1 on July 11,  1968. Accused  1 directed  the appellant  to  take charge of  Ghanshamsinh. The appellant did likewise and told Ghanshamsinh that  if he wanted to get rid of the charge, he should gratify  the Sub-Inspector.  The appellant  backed up the suggestion  with a  threat to  handcuff Ghanshamsinh and put him  in  the  police  lock  up.  The  appellant  further demanded a  bribe of  Rs.  2,000/-.  At  first  Ghanshamsinh expressed his inability to pay the amount. Ultimately at the intervention of Accused 2, the demand was scaled down to Rs. 1,000/- and  it was  agreed that out of the amount, a sum of Rs. 500/-would  be paid  on the  following  evening  at  the latest. Ghanshamsinh  was then allowed to go. He then talked about this deal to his cousin, Fatehsinh.      On the  following day,  Ghanshamsinh went  to Ahmedabad and contacted  Shri R.  R. Desai  (PW 8),  Inspector of  the Anti-Corruption staff  of Police  and made a complaint which was recorded.  Shri Desai  then in  the presence of Panchas, supplied a  sum of  Rs. 500/-in  five currency  notes of the denomination of  Rs. 100/-  each to  Ghanshamsinh for use in the trapping  the accused  persons in  the act of taking the

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bribe. The  notes were  smeared with  anthracene powder  and Ghanshamsinh was directed to hand over the same on demand to the accused,  and then  signal to  the raiding  party. After settling the  plan, the  party came to Zinzuwada on July 12, 1968. Ghanshamsinh  was sent ahead with the tainted money to the Police  Station. On seeing Ghanshamsinh along with Panch Mahendra going  to the residence of Accused 1, the appellant called him  and took  him to  his office  room in the Police Station. Ghanshamsinh  informed the  appellant that  he  had brought the  money as  agreed for  payment to Accused 1. The appellant told  him that  Accused 1  being away,  he was the acting Station House Officer and the money should be paid to him, adding  that he would, in turn, pass it on to Accused 1 on his  return. Ghanshamsinh  then handed  over  those  five currency notes  to the  appellant who  accepted the same and placed them  in the  drawer of  his  table.  All  the  three persons then  came out of the room. The appellant locked the room. On  receiving the agreed signal from Ghanshamsinh, the police party  rushed in  and caught hold of the appellant by the hand. With the key found on the person of the appellant, Inspector Desai unlocked the room and recovered the currency notes from the drawer of the appellant’s table. The hands of the  complainant   Ghanshamsinh,  Panch   Mahendra  and  the appellant were  examined in  the light  of  an  ultra-violet lamp. Such  examination revealed  anthracene powder  on  the hands of  the appellant and Ghanshamsinh; but no such powder was seen on Panch Mahendra. Shri 1055 Desai prepared  the Panchnama.  Certain police papers on the demand of  Inspector Desai  were  produced  by  the  Writer- Constable, Kansanbhai.  These are: (1) Statement, dated July 11, 1968  of Bai  Sati recorded  by Accused 1; (2) Statement dated July  11, 1968  of Koli Mana Jiva, recorded by Accused 1; (3)  the writing  sent by  Police  Sub-Inspector,  Dasuda under Javak  No. 2991 dated July 10, 1968 as per endorsement dated July  18, 1968 to the Police Inspector, Zinzuvada; (4) The Statement  of Bai  Sati  recorded  by  the  Police  Sub- Inspector at  Dasuda on  July 10, 1968. The Inspector seized these records.      After completing  the investigation,  the  police  sent both the  accused under  a charge-sheet for trial before the Special Judge,  Surendranagar on  charges under  s. 161 read with s.  34 and  s. 165A of the Penal Code and under s. 5(2) read with  s. 5(1)(d)  of the  Prevention of Corruption Act. The trial  Judge acquitted  both  the  accused  of  all  the charges levelled against them.      On appeal  by the  State, the  High Court  of  Gujarat, reversed the acquittal of the appellant and convicted him on two counts,  namely, one  for an offence under s. 161, Penal Code and the other under s. 5(2) read with s. 5(1)(d) of the Prevention of  Corruption Act  and sentenced  him to  suffer rigorous imprisonment  for two years on the latter count. No separate sentence under s. 161, Penal Code was inflicted.      Hence this appeal by special leave.      The mainstay  of the  prosecution case is the testimony rendered by  Ghanshamsinh (PW  1) and  Panch Mahendra (PW 4) and Police  Inspector Desai.  The first two are witnesses of the demand  of the tainted currency notes and the acceptance thereof by  the appellant  from PW 1. Inspector R. R. Desai, PW 8,  was the  Head of  the raiding party who recovered the tainted notes.      Examined under  s. 342,  Cr. P.C.,  the appellant while denying the  demand of the bribe on the 11th July, 1968 from Ghanshamsinh, gave this account of what happened on the 12th July 1968:

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         "...the complainant  Ghanubha  Champubha  and  his      companion came  up to me. I asked Ghanubha as to why he      had come....  He informed  me that  his  companion  was      related to  the P.S.I.,and  that he  had some work with      him. He told me that he had accompanied him to show him      the police station. I offered them seats, and gave them      water.  I   questioned  the   above  person  about  his      relationship with  the Sub-Inspector.  He replied to me      that he was the agnate of P.S.I. Joshi, and that he had      come to  hand over money to him as his son was sick and      that, the  said money  was  sent  by  his  family  from      Ahmedabad. I  instructed him  to approach  his wife and      give money  to her.  He told  me that if he met her, he      would have  to stop for the night, so that he would not      be able  to attend  the H.L. College in the morning. He      told me to take the money and give it to P.S.I. 1056      Joshi, and  that, I should arrange for his transport to      Ahmedabad in some motor truck proceeding there. He gave      me Rs.  500/- in five G. C. Notes, which are now before      the Court  at Art.  2. I  placed them in a cloth purse,      and kept  it in my drawer, over the said application of      Narubha Ex.  51. I  offered them  tea and asked them to      wait outside.  I also told him that I would arrange for      his lift in the motor truck carrying salt to Ahmedabad.      So saying,  we came out of the police station. I locked      my room because in it, are placed arms and ammunitions.      I was leaving the Police Station and going to the hotel      for placing  an order  for tea, when two men held me by      my two  hands. They  brought me  in the compound of the      Police Station. Other 3, 4 men turned up, and one Saheb      from amongst  them asked  me to  produce the  money.  I      exclaimed, "What  money": I told him if the money, that      was required,  was the same, which the cousin of P.S.I.      Joshi had  handed over to me. The officer insisted that      the money  must be  produced. I  was then perplexed. He      took the  key from  one of my hands and opened my room,      and took  out the  money. I  was seated in the verandah      and was  not allowed  to go inside...I then learnt that      the said  brother of the P.S.I. was none else but Panch      No.  1.  The  Officer  asked  from  me  the  papers  of      investigation against  Ghanubha. I  said that  I had no      such  papers,   and  that  I  had  not  made  any  such      investigation against him. He then attached some papers      from the Writer Constable Karsan Talshi."      Thus, the  appellant had admitted the acceptance of the tainted  currency   notes   which   were   not   his   legal remuneration. In  variance with  the prosecution  case,  he, however, alleged  that this  money was handed over to him by Mahendra, PW 4, with the representation that he was a cousin of P.  S. I.  Joshi (who was then away) and the money was to be passed  on to Mr. Joshi. The appellant, further, admitted that after  the recovery  of the  money, when his hands were examined in  the light  of the  ultra violet  lamp,  shining powder was  found thereon.  He expressed  ignorance  if  the hands of  Ghanshamsinh  and  Mahendra  were  also  similarly examined. He expressed a desire to appear in the witness box and make  a statement on oath. Subsequently, however, he did not do  so, but  examined one  Naruba Dosubha  (D.W.  1)  in defence, who  more or  less supported  the  version  of  the appellant with  regard to  the receipt  of Rs.  500/- by the appellant from PW Mahendra.      The trial  Judge instead  of appraising the evidence of the witnesses  produced by  the prosecution  in the light of the admission  made  by  the  appellant  in  regard  to  the

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acceptance of  money, rejected  the prosecution case in toto against both  the accused  on grounds  which were manifestly erroneous  and   unreasonable.  Without   there  being   any evidence, he  came to the conclusion that Ghanshamsinh was a tool in  the hands  of one  Parbhat Singh Jhala, Girasdar of Ahmedabad, who  was  inimically  disposed  towards  all  the members of  Zanzuwada Police,  including the  appellant.  He brushed aside  the evidence  of Mahendra  with  the  puerile observation that  he "as  a trainee  Press Reporter would be beguiled into 1057 getting this  first class  report of  a sensational  raid by acting as  a panch  witness in  this raiding  party, at  the instance of  Mr. Desai.....and in that event, Mahendra would be too  willing to  accompany the  raiding party and in that context would  be under the intelligent thumb of police, not by means  of pressure, but as a result of human inquisitive, willingness induced in him."      The trial Judge further stressed the fact that Mahendra had  accompanied   the  raiding   party  from  Ahmedabad  to Zunzuwada and had travelled in the police van for over three hours and  this in  his opinion  was sufficient to show that the witness  was "not so much independent as he professed to be." He  further found  it unbelievable  that the  appellant would  accept   the  sum  of  Rs.  500/-  as  a  bribe  from Ghanshamsinh in the presence of a stranger (Mahendra).      The conclusions  reached by  the  trial  Judge  had  no foundation in  evidence.  They  belonged  to  the  realm  of purespeculation. Apart  from mere  suggestions  put  to  the prosecution witnesses,  in  cross-examination,  (which  were emphatically denied),  there was  no evidence  to show  that Parbhat Singh  Girasdar was in any way hostile or inimically disposed towards  the appellant.  There was no justification for the  conjecture that  Panch Mahendra was under the thumb of Inspector  Desai and  as such, was an interested witness. We have  examined the evidence of Mahendra and are satisfied that the  High  Court  rightly  found  him  a  truthful  and trustworthy witness  who had no axe of his own to grind. The defence version  to the effect, that it was Mahendra who had actually passed  on the  tainted money  to the  appellant by holding himself  out as a relation of the Sub-Inspector, was falsified by  the circumstance that no anthracene powder was found on Mahendra when immediately after the recovery of the tainted notes,  his hands  were examined  in  the  light  of ultra-violet lamp; while such powder was admittedly found on the  hands   of  the   appellant,  and   Ghanshamsinh.  This circumstance was  deposed to by Inspector Desai (PW 8) whose version  on   this  point   was  not  challenged  in  cross- examination. Thus, while DW 1 told a lie on this point, this uncontroverted circumstance could not.      The presence  of Mahendra  (PW 4)  at the  time of  the receipt of  the tainted  notes was admitted by the appellant himself. In  the  face  of  this  admission,  there  was  no justification for  the surmise made by the trial Court, that the appellant,  an experienced  Head-Constable, could not be so stupid as to receive Rs. 500/- as a bribe in the presence of an unknown person.      Thus it  had  been  indubitably  established  that  the appellant, a  public servant  accepted a gratification, that is, a sum of Rs. 500/- which was not his legal remuneration, from Ghanshamsinh  (PW  1).  On  proof  of  this  fact,  the statutory presumption  under s.4(1)  of  the  Prevention  of Corruption Act  was attracted  in full  force and the burden had shifted  on to  the appellant  to show  that he  had not accepted this  money as  a  motive  or  reward  such  as  is

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mentioned in s. 161, Penal Code.      Mr. Keswani  contends that  the appellant  had rebutted this presumption  by bringing  on record circumstances which militate against it. The 1058 first and  the foremost of these circumstances, according to the  Counsel,   is  that   no  complaint   whatever  against Ghanshamsinh in  respect of the commission of an offence was under investigation  with the police; that no F.I.R had been lodged by  any person  complaining of  the abduction  of Bai Sati against Ghanshamsinh or any other person. Our attention has been  drawn to  the statement of Bai Sati, which is said to have  been recorded  by Accused  1 on the 11th January in which it  is recorded  that she  had not  been kidnapped  or abducted by  any person  but had gone away from her father’s house of her own accord. The second circumstance stressed by the Counsel  is that  Accused 1  has been  acquitted of  the charge of  demanding a  bribe directly or indirectly through the appellant,  from Ghanshamsinh.  It  is  urged  that  the effect of  the acquittal  of Accused  1 is  that  the  money passed on  to the  appellant on  the 12th  cannot be held to have been  paid pursuant  to any  demand of  bribe  made  by Accused 1  or by  the  appellant.  The  third  circumstance, pointed out by the Counsel is that Ghanshamsinh had a grudge against the appellant and a motive to falsely implicate him, because the appellant had previously investigated a criminal case under  s. 324,  Penal Code  against the  appellant, who being aware  of it,  would be  least disposed  to accept the amount, as a bribe, for himself or for the Sub-Inspector. It is further  contended that  PWs Fatehsinh  and  Ghanshamsinh were persons of questionable antecedents, and their evidence in the  absence of  reliable  independent  corroboration  in regard to  the demand and acceptance of the money as a bribe could not be safely accepted.      We  are  unable  to  accept  the  contention  that  the presumption under  s. 4(1)  of the  Prevention of Corruption Act had been rebutted.      While it  is true  that no report or complaint had been made or  registered in  the Police Station that Ghanshamsinh had abducted  Bai Sati,  there was  credible evidence on the record to believe that both the accused had asked Fatehsinh, PW 7,  to produce  his cousin  Ghanshamsinh  in  the  Police Station in  connection with the investigation of a charge of abduction of  Bai Sati  against him. Fatehsinh conveyed this message to  Ghanshamsinh on  July 10,  1968. Consequently on July 11,  1968, Ghanshamsinh  was produced  by  Fateh  Singh before the  Police Sub-Inspector  at the latter’s residence, and thereafter  Accused 2,  the appellant, took him into the Police Station  and made  him sit  in his  room. It  was the appellant who  then accused  Ghanshamsinh of having abducted Bai Sati and warned him that in case he did not pay money to the Sub  Inspector, he  would be  arrested  and  paraded  in handcuffs around  the village.  Evidence of PWs Ghanshamsinh and Fatehsinh  with regard  to the summoning of Ghanshamsinh to the  Police  Station  to  answer  a  supposed  charge  of abduction, received  assurance from the circumstance that on the 10th  and 11th  July 1968,  Bai Sati  was in  the Police station.      It is  no doubt  correct that  the High  Court has  not disturbed the  acquittal of  Accused 1  on the  ground  that Ghanshamsinh’s evidence  with regard  to the  demand of  the bribe by accused 1 on the 11th, had not been corroborated by other independent evidence. The only effect of the acquittal of Accused  1, however,  is that it cannot be now urged that Accused 1 had demanded any bribe from Ghanshamsinh on

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1059 the 11th.  But his  acquittal does  not in any case discount the fact  or   obliterate the evidence in regard to the fact that Ghanuba  was called  to the Police Station and was told by the appellant that there was a charge of abduction of Bai Sati against  him. Nor  does the acquittal of Accused 1 have the effect  of exonerating  the appellant  of the  demand of bribe on the 11th and again on the 12th.      As already  noticed, the testimony of Ghanshamsinh both with regard  to the  demand  of  the  gratification  by  the appellant and  its payment  to him,  on the 12th stood fully corroborated by  the independent  and reliable  testimony of Panch Mahendra.  Thus, so  far as the appellant is concerned the testimony  of Ghanshamsinh,  having been fully confirmed by other trustworthy evidence, could safely be acted upon.      As regards the contention that the appellant was not in a position  to show  any favour or disfavour to Ghanshamsinh in connection  with his official duties, it may be noted, in the first place, that on the 12th July at the relevant time, the Sub-Inspector  being away,  the appellant  was  actually incharge of  the Police  Station. This  fact is borne out by the entry  Ex. 47  in the  Station Diary. On seeing Ghansham and  Mahendra  going  towards  the  residence  of  the  Sub- Inspector, the  appellant  called  them  and  enquired  from Ghanshamsinh if  he  had  brought  the  money.  Ghanshamsinh replied in  the affirmative  but hesitated  to hand over the money to  him saying that the Sub-Inspector was not present. Thereupon, the  appellant represented that he was the P.S.I. and that the money should be handed over to him, adding that he would  pass it on to the P.S.I. on his return. Thereupon, Ghanshamsinh paid the amount to the appellant saying that he should not be harassed any more, and that the demand for the balance be  mercifully dispensed  with. The  appellant while accepting the money assured Ghanshamsinh that he had nothing to fear  so long  as the  appellant was  concerned  in  that affair.      Secondly, this demand for payment and acceptance of the money  by   the  appellant  on  the  12th  July  had  to  be appreciated in the context of the representation made by the appellant on  the preceding  day, to  the  effect,  that  if Ghanshamsinh would  not pay  the gratification,  he would be arrested,  handcuffed   and  paraded   for  the  offence  of abducting Bai Sati.      The proof  of the  foregoing facts  was  sufficient  to establish the charge under s. 161, Penal Code. The mere fact that no  case of  abduction or of any other offence had been registered against  Ghanshamsinh in  the Police  Station  or that no complaint had been made against him to the Police by any person in respect of the commission of an offence, could not take the act of the appellant in demanding and accepting the gratification  from Ghanshamsinh, out of the mischief of s. 161,  Penal Code.  The Section  does not require that the public servant  must, in  fact, be  in a  position to do the official act, favour or service at the time of the demand or receipt of the gratification. To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by 1060 inducing a  belief or  by holding  out that  he would render assistance to  the giver "with any other public servant" and the giver  gives the  gratification under that belief. It is further immaterial  if  the  public  servant  receiving  the gratification does not intend to do the official act, favour or forbearance  which he  holds himself  out as  capable  of doing. This  is clear  from the last Explanation appended to

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s.  161,  according  to  which,  a  person  who  receives  a gratification as  a motive for doing what he does not intend to do,  as a  reward for  doing what  he has  not done comes within the  purview of  the words  "a motive  or reward  for doing." The  point is  further clarified by Illustration (c) under this  Section. Thus,  even if  it is  assumed that the representation made by the appellant regarding the charge of abduction of  Bai Sati  against Ghanshamsinh  was, in  fact, false, this  will not enable him to get out of the tentacles of s. 161, although the same act of the appellant may amount to the offence of cheating, also (see Mahesh Prasad v. State of U.P.,Dhaneshwar Narain Saxena v. Delhi Admn.      Indeed, when  a public servant, being a police officer, is charged  under s.  161 Penal  Code and it is alleged that the illegal  gratification was  taken by  him for  doing  or procuring an  official act,  the question  whether there was any offence against the giver of the gratification which the accused could  have investigated or not, is not material for that purpose.  If he  has  used  his  official  position  to extract illegal gratification, the requirement of the law is satisfied. It  is not necessary in such a case for the Court to consider whether or not the public servant was capable of doing or  intended to  do any  official  act  of  favour  or disfavour (see Bhanuprasad Hariprasad Dave and anr. v. State of Gujarat, and Shri Raj Singh v. Delhi Administration.      In the  light of  what has been said above, it is clear that the  appellant has  failed  to  rebut  the  presumption arising against  him under  s. 4(1)  of  the  Prevention  of Corruption Act. It is true that the burden which rests on an accused to  displace this  presumption is  not as onerous as that  cast   on  the   prosecution  to   prove   its   case. Nevertheless, this burden on the accused is to be discharged by bringing  on record  evidence, circumstantial  or direct, which establishes  with  reasonable  probability,  that  the money was accepted by the accused, other than as a motive or reward such  as is  referred to in s. 161. The appellant had hopelessly failed  to show  such a balance of probability in his favour.      Thus the charge under s. 161, Penal Code had been fully brought home  to the  appellant. The charge under s. 5(1)(d) read with  s. 5(2),  also had been proved against him to the hilt. Clearly  he had  obtained the money by grossly abusing his position.      Lastly, towards  the fag  end, in  reply,  Mr.  Keswani attempted to  assail the  conviction recorded  by  the  High Court on  a ground  which had  not been raised in the courts below. The charge against the 1061 appellant was that he had committed an offence under s. 161, read with  s.  34,  Penal  Code.  No  charge  under  s.  161 simpliciter was  separately drawn up against him. This being the case,  contends ’Mr. Keswani, the High Court was not, in the event  of the  acquittal  of  Accused  1,  competent  to convict the  appellant under  s. 161  with the  aid of s. 34 Penal Code.      The contention  must be  repelled.  Firstly,  the  High Court has not convicted the appellant with the aid of s. 34, Penal Code.  Secondly, although  in the charge, only s. 161, read with  s. 34,  Penal Code was mentioned, the language of the charge,  could leave  the appellant  in no doubt that in addition to  the vicarious charge under s. 161, read with s. 34, he  was being  charged with the commission of an offence under s.  161, simpliciter  also. This was manifest from the words  :   "You  Accused   2  directly  accepted  from  Shri Ghanshamsinh Champublia  Zala Rs.  500/- .  . .  "  All  the

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material circumstances appearing in evidence constituting an offence under s. 161, Penal Code simpliciter were put to him during his examination. This objection was not raised in any of  the   courts  below  at  any  stage.  No  prejudice  has therefore, been  caused to  the appellant  by this technical defect in  the charge.  In any  case this irregularity stood cured under s. 537, Criminal Procedure Code.      For the  foregoing reasons,  the appeal  fails  and  is dismissed. V.P.S.                                     Appeal dismissed. 1062