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CASE NO.: Appeal (crl.)  557 of 1999

PETITIONER: State of Maharashtra                                             

RESPONDENT: Rashid B. Mulani                                                         

DATE OF JUDGMENT: 04/01/2006

BENCH: S. B. Sinha & R. V. Raveendran

JUDGMENT: J U D G M E N T

RAVEENDRAN, J.

       State has come up in appeal by special leave, against the judgment  of acquittal dated 25.11.1997 passed by the Bombay High Court allowing  Criminal Appeal No.92 of 1990 filed by the accused, thereby setting aside  the conviction and sentence under the judgment dated 7.2.1990 passed by  the Additional Special Judge, Pune, in Special Case No.1/1987. By the said  judgment, the Special Judge had convicted and sentenced the respondent  herein to undergo RI for one year in regard to an offence under Section  161 of the I.P.C. and RI for one year for an offence punishable under  Section 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act,  1947 (’the Act’ for short), and to pay a fine of Rs.1,000/- and in default to  suffer further RI for three months, with a direction that both the substantive  sentences shall run concurrently.

2.      The prosecution case was as under : -  2.1)    The respondent was working as the Talathi of village Kodit, District  Pune. One Mahadeo Bhimaji Badade (complainant) and his elder brother  Baban were the owners of an ancestral field at village Kodit. They had  taken a loan from one Krishna Badade and had secured the said land in his  favour by way of a mortgage. The mortgage suit filed by the mortgagee    ended in a compromise on 16.6.1973. In the year 1986, when the  complainant obtained a ’7/12 extract’ in regard to the said land, he found  that the name of the mortgagee was continued to be shown as the holder  and person in possession. The complainant, therefore, requested the  respondent/accused to delete the name of Krishna Badade in view of  repayment of the mortgage loan in terms of the compromise. The accused  informed the complainant that there will be some expenses in that behalf.  Thereafter, when the complainant again went to the office of the accused  on 6.9.1986 to verify whether the name of Krishna Badade was deleted, he  found to his surprise that the names of the sons of Krishna Badade had also  been entered. Krishna Badade and his sons had no objection for removal of  their names from the revenue record. Therefore, the complainant again met  the accused on 7.9.1986 with a request to remove the names of Krishna  Badade and his sons. The accused informed him that the complainant will  have to pay Rs.1,000/-. When the complainant expressed his financial  difficulty, the accused reduced the demand to Rs.900, and instructed the  complainant to come with the money.

2.2)    The complainant went to the Circle Office on 10.9.1986 and paid  Rs. 600/- to the accused. The accused wrote out the necessary application  for the complainant and obtained his signature. He, however, stated that  the work would not be done unless the balance of Rs. 300/- was paid.  Thereafter, when the complainant went to Gram Sevak’s Office on

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2.10.1986, for some work, the accused met him and asked him again to  bring Rs. 300/- to Circle Office at Saswad and he would keep the ’7/12  Extract’ ready.  

2.3)    At that stage, the complainant went to the Anti-corruption Bureau,  Pune and lodged a report on 4.10.1986. On 6.10.1986, the amount brought  by the complainant (one currency note of Rs.100/- and four currency notes  of Rs.50/-) were applied with a chemical and the chemically treated  currency notes were kept in complainant’s pocket. The raiding party along  with the complainant and Panch witnesses went to Saswad. The  Complainant and Gulab Kangane (PW-2), a Panch witness, went to the  Circle Office together, and the Police party followed them. That office was  closed. However, they met the accused on the way and he asked the  complainant to come to his residence. They also met one Kotwal. The  complainant, Gulab and Kotwal went to the house of the accused. When  complainant asked the accused as what happened to his work, the accused  stated that the work was done, but he had to obtain the signature of the  Circle Inspector. The accused asked the complainant whether he had  brought the money. The complainant answered in the affirmative and paid  the marked currency notes aggregating to Rs.300/-. The accused accepted  the same, counted the notes and put them in his pocket. Thereafter, the  complainant went out and gave a signal to the raiding party. The raiding  party came inside and apprehended the accused and recovered the marked  three currency notes (Rs.300/-) from his pocket. A Panchnama was drawn  and the amount was seized. Statements of witnesses were recorded. After  completing the investigation and necessary formalities relating to   sanction, a charge-sheet was filed before the Special Court, Pune, under  Section 161  IPC and Section 5(2) read with Section 5(1)(d) of the Act.  

3.      The defence as put forth in the cross-examination of the prosecution  witnesses and the explanation given in the statement under section 313 of  Cr.P.C was as follows :-

Some amount was outstanding from the complainant in regard to a Tagai  loan taken in the name of his elder brother Baban. The Tehsildar,  Purandhar sent a communication dated 3.9.1986 to the accused stating that  one Baban  Bhimaji Badade of Kodit (brother of the complainant) was due  in a sum of Rs.2575.90 towards interest in respect of an engine loan taken  in the year 1966. The accused was, therefore, instructed to recover the said  amount and deposit it in the Government Treasury. Therefore, the accused  sent a notice dated 6.9.1986 to the complainant, demanding payment of the  amount due. In pursuance of it, the complainant came to his house on  6.10.1986 and paid him Rs.300/- towards the amount outstanding to the  Government, and it was received by him as government dues and not as a  bribe for showing any official favour to the complainant.

4.      The explanation given by the accused was rejected by the Special  Judge, with detailed reasons. Accepting the case of the prosecution, he    convicted and sentenced the accused, as stated above.

5.      Feeling aggrieved, the accused filed Criminal Appeal No.92/1990.  The High Court by judgment dated 25.11.1997 allowed the appeal, holding  that the explanation given by the accused for receiving the amount was  reasonable and probable and therefore, the charge against the accused that  he had accepted Rs.300/- as illegal gratification was not proved beyond  doubt and that the accused was entitled to benefit of doubt.  The said  judgment, acquitting the accused, is challenged by the State in this appeal.   

6.      The State contends that the High Court ought not to have disturbed  the clear findings recorded by the Special Court based on specific  evidence. It is also contended that there is no justification for the High  Court to accept a vague explanation without factual basis, that in respect of  a Tagai loan due by the complainant, the accused had issued a notice of  recovery to the complainant on 6.5.1986 by registered post and that in  pursuance of it, the complainant paid Rs. 300/- on 6.10.1986 towards the

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Tagai loan.

7.      The respondent does not dispute the fact that Rs. 300/- was received  by him from the complainant on 6.10.1986. He contends that there was no  demand for or acceptance of any illegal gratification and the amount was  received as payment towards a government loan. He submits that if his  explanation is reasonable and plausible, then he is entitled to benefit of  doubt as held by the High Court. He places reliance on the decision of  this  Court in Punjabrao vs. State of Maharashtra [2002 (10) SCC 371]. In  that case, the accused was a Patwari and his explanation was that he  received the amount as repayment of a loan. The Special Judge had  accepted the explanation and acquitted the accused. But the High Court  had reversed the decision. Interfering with the decision of the High Court,  this Court observed :-  "It is too well settled that in a case where the accused offers an  explanation for receipt of the alleged amount, the question that  arises for consideration is whether that explanation can be said to  have been established. It is further clear that the accused is not  required to establish his defence by proving beyond reasonable  doubt as the prosecution, but can establish the same by  preponderance of probability. It is undisputed that from 24th to  26th the Patwari was collecting loans in a collection campaign. It  is, of course, true as observed by the High Court that when the  investigating officer seized the amount from the accused Patwari,  he did not offer the explanation that it was in relation to a  collection of loan, but that by itself would not be sufficient to  throw away the explanation offered by the accused in his  statement under section 313 when such explanation could be   held to be reasonable under the facts and circumstances of the  case, as indicated by the learned Special Judge while acquitting  the accused."  

In Punjab Rao’s case (supra), it was admitted that on the date when the  payment was made, the Patwari was on a collection campaign collecting  loan amounts. The fact that the complainant was a debtor from whom  amount was due to the government was also not disputed. In these peculiar  circumstances, this Court accepted the explanation, even though such  explanation was not immediately offered to the Investigating Officer, but  was given in the section 313 statement. But for such special facts, courts  are wary of accepting belated explanations given for the first time in the  statement  under section 313 and not at the first available opportunity.    [See : A. Abdul Kaffar vs. State of Kerala  (2004) 9 SCC 333 and T.  Shankar Prasad vs. State of AP (2004) 3 SCC 753]  

8.      Section 4 of the Act, inter alia, provided that where in any trial of an  offence punishable under Section 161 IPC or Section 5(1)(a) or (b)  punishable under section 5(2) of the Act, it is proved that an accused  person has accepted any gratification (other than legal remuneration), it  shall be presumed, unless the contrary is proved, that he accepted that  gratification as a motive or reward, such as is mentioned in the said  Section 161. This would mean that a mere explanation in the statement  under Section 313 that the amount was received towards a loan will not be  sufficient. The contrary position should be established by the accused  either from inferences legally drawn from the evidence on record let in by  the prosecution, or by letting in direct evidence in regard to the  explanation. The statutory presumption raised under Section 4 will not  stand rebutted merely by offering an explanation under Section 313 if such  explanation does not find support from the evidence let in by the  prosecution.  

9.      In Dhanvantrai Balvantrai Desai v. State of Maharashtra [AIR  1964 SC 575], this Court observed thus :

       "Therefore, the Court has no choice in the matter once it is  established that the accused person has received a sum of money which

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was not due to him as a legal remuneration. Of course, it is open to that  person to show that though money was not due to him as legal  remuneration, it was legally due to him in some other manner or that he  had received it under a transaction or an arrangement which was lawful.  The burden resting on the accused person in such a case would not be as  light as it is where a presumption is raised under Section 114, Evidence  Act and cannot be held to be discharged merely by reason of the fact that  the explanation offered by the accused is reasonable and probable. It must  further be shown that the explanation is a true one. The words ’unless  the contrary is proved’ which occur in this provision make it clear  that the presumption has to be rebutted by ’proof’ and not by a bare  explanation which is merely plausible. A fact is said to be proved when  its existence is directly established or when upon the material before it  the Court finds its existence to be so probable that a reasonable man  would act on the supposition  that it exists. Unless therefore, the  explanation is supported by proof, the presumption created by the  provision cannot be said to be rebutted. ..... Something more, than raising  a reasonable probability, is required for rebutting a presumption of law.  The bare word of the appellant is not enough and it was necessary  for him to show that upon the established practice his explanation  was so probable that a prudent man ought, in the circumstances, to  have accepted it."      [Emphasis supplied]

          10.     Though, it is well-settled that the accused is not required to establish  his explanation by the strict standard of ’proof beyond reasonable doubt’,  and the presumption under Section 4 of the Act would stand rebutted if the   explanation or defence offered and proved by the accused is reasonable  and probable, the following words of caution in Chaturdas Bhagwandas  Patel v. The State of Gujarat [AIR 1976 SC 1497] should be kept in  mind before it can be said that the presumption stood rebutted : "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 Section 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 mentioned in  S. 161, Penal Code. ..... 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 Sec. 161."    

(Emphasis supplied)  

11.     The evidence of PW-1 (complainant), PW-2 (Panch witness) and  PW-3 (Police Inspector) clearly prove the ingredients of a valid trap case.  The evidence of the complainant (PW-1) shows that there was a demand  by the accused, payment of Rs.300/- as illegal gratification by the  complainant to the accused and acceptance thereof by the accused. The  evidence of PW-2 (Gulab) who accompanied the complainant, fully  corroborates the evidence of the complainant. PW-2 has stated that the  Police Inspector Mulani called him and disclosed to him about the trap,  that four  currency notes of Rs.50 each and one note of Rs.100 were kept in  the shirt pocket of the complainant, after being treated with chemicals; that  he accompanied the complainant to the Circle Office; that the Office was  closed and when they came near the bus-stand, the accused met them and  took them to his house; that in his presence, the complainant asked the  accused about the fate of his work and the accused enquired whether the  complainant had brought the money and told that he had to obtain the

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signature of the Circle Officer; that thereafter the complainant took out a  sum of Rs.300 and gave it to the accused who took it, counted it and kept it  in his pocket; and that was followed by the Police party and Panch  witnesses entering the house and seized the amount.  

12.     If the accused has received the money towards a Government loan or  at least being under a bona fide impression that it was towards repayment  of the Government loan, he will not be guilty. Let us examine whether the  explanation by the accused is reasonable and plausible. The evidence  clearly shows that no amount was due from complainant to the State. Even  the case of the defence is that certain amount was due from Baban  (complainant’s brother) and the Tehsildar had instructed the accused by  letter dated 3.9.1996 to recover the amount due from Baban. When no  amount was due from complainant, and when the instruction of the  Tehsildar was that the amount outstanding from Baban should be  recovered, there is no explanation as to why the accused should send a  demand notice to the complainant and not Baban on 6.9.1986. In fact, the  trial court has referred to the partition between Baban and complainant  three years before the incident. Be that as it may. When nothing is shown  to be due from the complainant, the case put forth by the defence that a  notice of demand dated 6.9.1996 was sent to complainant to pay the dues  cannot be accepted. It is obviously an afterthought. If no amount was due  to the government from the complainant, the question of accused accepting  it as payment towards a government loan does not arise. The evidence  relating to demand, payment and acceptance of illegal gratification, is  clear. The Trial Court had considered the entire evidence in detail and  drawn proper inferences. On the other hand, the High Court accepted as  explanation, an unsupported submission of counsel for the accused that the  payment was in response to a notice of demand dated 6.9.1986 sent by  accused to complainant by registered post, (thereby ignoring the entire  evidence regarding demand, payment and acceptance of a bribe) and held  that the accused should be given benefit of doubt.   13.     The entire story of  sending a notice dated 6.9.1996 by the accused  to the complainant is a clumsy belated attempt to explain away the receipt  of the illegal gratification on 6.10.1986. Firstly, the direction dated  3.9.1996 by the Tehsildar, as noticed above, was to recover the amount due  from Baban and there is no direction to recover the amount from the  complainant. Accused could not have, therefore, issued any notice of  demand to the complainant. Secondly, the notice of demand on 6.9.1986  was not sent by registered post to the complainant, nor delivered  personally against acknowledgement. The High Court appears to have  accepted the explanation of the accused (that the payment was towards  government dues) as probable, because it was submitted on behalf of the  accused that a notice of demand dated  6.9.1986 was sent to the  complainant by the accused by registered post. On a specific query by us  with reference to the list of documents dated 3.2.1990 filed by the accused  before the Special Judge, learned counsel for the respondent conceded that  the notice dated 6.9.1986 was not sent by registered post. She submitted  that the notice was posted on 6.9.1986 at Pune and a certificate of posting  was obtained. It is strange that the notice dated 6.9.1986, if really sent, was  not posted at the place where the accused was working, but from Pune  which is at a distance of about 40 kms. from his place of work. In the  written submissions filed before us on 3.10.2005, the accused has  confirmed that the notice was not sent by registered post and has attempted  to offer some lame explanation as to why the notice dated 6.9.1986 was  posted at Pune. It is clear that no notice dated 6.9.1986 was issued to the  complainant and the accused has tried to create an explanation by securing  a certificate of posting dated 6.9.1986 from Pune after the event.  

14.  A certificate of posting obtained by a sender is not comparable to a  receipt for sending a communication by registered post. When a letter is  sent by registered post, a receipt with serial number is issued and a record  is maintained by the Post Office. But when a mere certificate of posting is  sought, no record is maintained by the Post Office either about the receipt

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of the letter or the certificate issued. The ease with which such certificates  can be procured by affixing ante-dated seal with the connivance of any  employee of the Post Office is a matter of concern. The Department of  Posts may have to evolve some procedure whereby a record in regard to  the issuance of certificates is regularly maintained showing a serial  number, date, sender’s name and addressee’s name to avoid misuse. In the  absence of such a record, a certificate of posting may be of very little  assistance, where the dispatch of such communications is disputed or  denied as in this case. Be that as it may.  

15.     It is no doubt true that if two views are possible and the view of the  High Court acquitting the accused cannot be said to be wholly improbable,  this Court will not interfere with the decision of the High Court. But where  the material on record leads to only one conclusion viz., the guilt of the  accused, the judgment of the High Court will not be sustained [vide State  of Andhra Pradesh vs. K. Narasimhachary 2005 (8) SCALE 266]. In this  case, we are clearly of the view that the High Court was not justified in  accepting the explanation regarding receipt of Rs.300/- by the accused as  being towards Tagai loan. The conclusion of guilt is inescapable.  Consequently, we allow this appeal, set aside the order of the High Court  and restore the judgment of the Additional Special Judge, Pune, in Special  Case No.1/1987 convicting the respondent for the offences punishable  under Section 161 IPC and Section 5(2) read with Section 5(1)(d) of the  Act.

16.     In regard to sentence, we find that the incident occurred about 19  years ago. The matter was pending for about 3 years before the Special  Judge, and about 8 years before the High Court and, thereafter, for 8 years   before this Court. The accused was hardly 32 years old when the incident  occurred and now more than 50 years old. The accused was a Talathi  coming from a poor background with a family to support. In the  circumstances, while restoring the conviction, we reduce the sentence from  one year to four months both under Section 161 IPC and Section 5(2) read  with Section 5(1)(d) of the Act. Both the sentences to run concurrently.  The accused, who is on bail, shall surrender forthwith to serve out the  sentence.