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PETITIONER: THE STATE OF MADRAS

       Vs.

RESPONDENT: A.   VAIDYANATHA IYER

DATE OF JUDGMENT: 26/09/1957

BENCH: KAPUR, J.L. BENCH: KAPUR, J.L. SINHA, BHUVNESHWAR P. MENON, P. GOVINDA

CITATION:  1958 AIR   61            1958 SCR  580

ACT:        Appeal  by  special leave--Order of acquittal  by  the  High        Court--Power  of  Supreme  Court-Presumption-Prevention   of        Corruption  Act, (II of 1947), s. 4-Constitution  Of  India,        Art. 136.

HEADNOTE:        Respondent, an Income-tax Officer, called an assessee to his        house  and  took  a sum of Rs. 800  from  him.   Immediately        afterwards a search was made and the respondent, after  some        evasion,  produced the money.  The respondent’s defence  was        that  he had taken the money as a loan and not  as  illegal,        gratification.   The Special judge who tried the  respondent        found  him guilty under s. 16i, Indian Penal Code, and  sen-        tenced  him to six months simple imprisonment.   On  appeal,        the High Court acquitted the respondent.  The State obtained        special leave and appealed.        Held,  that the words used in Art.  I36 of the  Constitution        show that in criminal matters no distinction can be made  as        a  matter of construction between a judgment  of  conviction        and  one of acquittal.  The Supreme Court will  not  readily        interfere with the findings of fact given by the High  Court        but if the High Court        (i)  A.I.R. (1954) S.C. 680.        581        acts perversely or otherwise improperly interference will be        called for.        The findings of the High Court are halting and its  approach        to the case has been erroneous as it disregarded the special        rule  of  burden of proof under s. 4 Of  the  Prevention  of        Corruption Act (II Of 1947).  The judgment of the High Court        shows that certain salient pieces of evidence were missed or        were not properly appreciated.        In  this  situation the Supreme Court can  interfere  in  an        appeal by special leave.        Where  it is proved that a gratification has been  accepted,        the  presumption under s- 4 Of the Prevention of  Corruption        Act shall at once arise.  It is a presumption of law and  it        is obligatory on the Court to raise it in every case brought        under s. 4.        The  evidence  and circumstances in this case  lead  to  the

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      conclusion  that the transaction was not one of loan but  of        illegal gratification.

JUDGMENT:        CRIMINAL  APPELLATE JURISDICTION: Criminal Appeal No.  5  of        1957.        Appeal  by special leave from the judgment and  order  dated        the 6th September, 1955, of the Madras High Court in  Crimi-        nal  Appeal No. 498 of 1954 and Criminal Revision  Case  No.        257 of 1955, arising out of the judgment and order dated the        12th  July, 1954 of the Special Judge, Coimbatore in  C.  C.        No. I of 1952..        H.   J.  Umrigar,  H. R. Khanna and R. H.  Dhebar,  for  the        appellants.        K.g.  Krishnaswamy Iyengar and Sardar Bahadur, for  the  re-        spondent.        1957.   September 26.  The following Judgment of  the  Court        was delivered by        KAPUR  J.-This is an appeal by the State of Madras from  the        judgment and order of the High Court of Madras reversing the        judgment  of  the Special Judge of  Coimbatore  and  thereby        acquitting  the  respondent  who had been  convicted  of  an        offence under s. 161 Indian Penal Code and sentenced to  six        months simple imprisonment.        The respondent, Vaidyanatha Aiyer, was at all material times        the Income-tax Officer of Coimbatore and it is not  disputed        that he was there in the beginning        582        of  June 1951.  According to the prosecution the  respondent        in  the  end of September 1951 demanded from  K.S.  Narayana        Iyer  (hereinafter referred to as the complainant) who is  a        proprietor of a "Coffee Hotel" called Nehru cafe in  Coimba-        tore  with another similar hotel at Bhavanisagar a bribe  of        Rs. 1,000.        The  complainant had been assessed to income-tax  all  along        since  1942.  During the course of assessment for  the  year        1950-51 it was discovered that he had failed to pay  advance        income-tax.   A notice was therefore issued to him on  March        24.,  1951 under s. 28 read with s. 18-A (2) of the  Income-        tax Act. to show cause why a penalty should not be.  imposed        for  underestimating  his income.  For the  assessment  year        195152  also the complainant in the usual course  filed  his        return  on August 11, 1951 and on a notice being  issued  to        him  produced his accounts before the Income-tax Officer  on        September  27,  1951.  He again appeared before him  on  the        28th  and the respondent told him that the " penalty  papers        had.  not  been  disposed of and that the  accounts  of  the        current year had also not been gone through " and asked  the        complainant  to see him at his house on the following  morn-        ing,  which the complainant did.  There he was told  by  the        respondent that if he wanted to have his return accepted and        to be helped in the matter of penalty proceedings he  should        pay the respondent Rs. 1,000 as illegal gratification.   The        complainant mentioned this fact to his manager and also that        he had been told by the Income-tax Officer that his accounts        were  unsatisfactory.   Because he was asked to  do  so  the        complainant  saw  the respondent at the  latter’s  house  on        October  6  or  7 and he asked the  complainant  if  he  had        brought  the money and after some talk about the  assessment        the respondent asked the complainant -to pay half the amount        as  it was Deepavali time.  There is evidence of  a  defence        witness  also to show that towards the end of October  1951,        the  complainant was seen coming from the house of  the  re-

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      spondent  though the prosecution and the defence are not  in        accord as to the purpose of this visit.        583        The  Circle  Inspector, Munisami P. W. 12,  claims  to  have        received  complaints  while at Madras about  the  respondent        being  corrupt  and his " indulging in  corrupt  practices".        He then came toCoimbatoreandgot into touchwith the complain-        ant  and asked him if he had paid  anybribetotherespoiident.        The complainant mentioned to the Inspector about the  demand        of  a bribe by the respondent.  At the instance of  the  In-        spector the complainant appeared before the Tehsildar-Magis-        trate  who  recorded his statement P-17  wherein  the  whole        story  of  the demand of the bribe has been  set  out.   The        Inspector  then gave ten one hundred currency notes -to  the        complainant  after their numbers were taken down in Ex.   P-        17.  The complain ant then went to the office of the accused        but no money was accepted on that day because the respondent        had  received an anonymous letter Ex.  P-18 warning, him  of        the trap which was being laid by the Malayalam people.   The        respondent  naturally got very annoyed with the  complainant        and  sent him. away.  The same evening the  complainant  was        told that he was required to go to the house of the respond-        ent  on  the following morning which he did at 8 a.  m.  The        respondent  told  him that he should take no notice  of  the        anonymous  letter which must have been sent by  his  enemies        and asked him to pay some money.  The complainant paid a sum        of  Rs.  200  which on his return he entered  in  his  kacha        account  book  which  the High Court  has  rejected  without        sufficient  reason.   On  the evening of  November  15,  the        complainant  again went to the house of the  respondent  and        the latter told him that he would pass final orders and that        money  should be paid.  The record, P-7 and P-7  (a),  shows        that an order was dictated on November 13 although there  is        no proof or even indication that the complainant knew  about        it.  The complainant was given 8 one hundred rupee notes  by        the Inspector and the complainant paid them to the  respond-        ent on the morning of November 17 at the latter’s house.  On        this occasion the complainant accompanied by his manager  P.        W.  14  had gone towards the house of the  respondent  along        with the Magistrate and Circle Inspector and Venkates, lyer        584        P.   W. - 14 in a car which was stopped three or four blocks        away from the house of the respondent and only the complain-        ant  and  his manager went into the respondent’s  house  and        paid the money.  Two or three minutes later the Inspector P.        W.  12 and the Magistrate P. W. 13 and one Sesha  Ayyar  who        had  joined the party en route also came into the  house  on        receiving  the signal from the complainant.  They  disclosed        their identity to the respondent and told him that they  had        information that he had received Rs. 800 from the  complain-        ant  as illegal gratification and asked him to  produce  the        money  which  he  had received from  the  complainant.   The        respondent did not say anything and got up from the chair on        which he was sitting and tried to go into the house but  was        prevented  from doing so by the Inspector and he  then  pro-        duced  the  money from the folds of his  dhoti.   While  the        mahazar  was being prepared the respondent said that he  bad        received  this  money  as a loan from  the  complainant  who        denied  this and said it had been paid as a bribe.  A  tele-        gram  was then sent to the Superintendent of Special  Police        Establishment and under his orders a case was registered and        the investigation was then taken up by a Deputy Superintend-        ent  of Police who searched the house of the  respondent  on        November  19 but no pronote seems to have been  received  or        taken  into  possession on that date.  A pronote  with  four

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      anna  stamps affixed was later produced in the court by  the        respondent  on July 17,1952 during the course of his  state-        ment  under  s. 342 Criminal Procedure Code but it  was  not        mentioned to the Magistrate P. W. 13 by the respondent.        The  charge against the respondent was that he had  obtained        from  the  complainant Rs. 800 as gratification  other  than        legal  remuneration as a motive for the reward  for  showing        favour to him in the exercise of official functions and  had        thereby committeed an offence punishable under s. 161 of the        Indian  Penal Code read with a. 4 of the Prevention of  Cor-        ruption Act (Act II of 47).        The explanation of the respondent was that be men tioned  to        the complainant about his money difficulties        585        when accidentally he met him on the road towards the end  of        August  or  beginning of September  1951.   The  complainant        offered  to  lend him Rs 1,000/-.  At that time he  was  not        aware that the complainant had an assessment pending  before        him.   It  was the complainant who told him on  November  15        when  he  met him again that the anonymous  letter  was  the        "’work  of his enemies" and promised to advance the loan  as        previously promised and he also suggested that the  respond-        ent  should execute a pronote for Rs. 1,000 which  would  be        attested by Venkatesa Ayyar to which he (the respondent) was        agreeable.   The complainant paid Rs. 800 on the morning  of        November 17 and promised to pay Rs. 200 in the evening.  The        respondent had the pronote ready and offered to hand it over        in  the  morning but the complainant said he would  take  it        when " he left the house ".        The learned Special Judge accepted the story of the prosecu-        tion and after a careful analysis of the evidence found  the        respondent  guilty of the offence charged and sentenced  him        to -six months simple imprisonment.        On  appeal being taken to the High Court the learned  Single        Judge  reversed the judgment and acquitted  the  respondent.        It will be convenient to give here the main findings of  the        learned judge in his own words:        (i)" It is true that at the time when the money was accepted        by The accused, the proceedings in relation to assessment of        income  tax  on  P. W. 8 were pending  before  the  accused.        Naturally, therefore, if in such circumstances, the  accused        should  receive  money from an assessee,  the  suspicion  is        readily  aroused that the money must have been paid only  as        an illegal gratification.  On going through the judgment  of        the learned trial Judge, I formed the impression that he was        totally influenced by such suspicion."        (ii)"  The  result  is that if the version of P.  W.  8  and        thatof  the  accused  are balanced,  the  probability  seems        totilt the scale in favour of the accused’s version. In  any        case,  the evidence is not enough to show that the  explana-        tion offered by the accused        586        cannot reasonably be true, and so, the benefit of doubt        must go to him."        (iii)"  But this was not a case of ordinary lendee,  but  an        Income-tax Officer whose favour was needed by the lender.        (iv)"Evidence shows that in November, 1951, the accused  was        in  need  of a sum of Rs. 1,000 and, for that  purpose,  has        asked P.W. 8 for a loan."        (v)" In my view, the evidence does not necessarily make  out        a case that the accused must have accepted the money only as        a bribe.  "        (vi)"  I do not therefore feel certain that the taking of  a        loan  with  an obligation to repay it with  interest,  would        fall within the meaning of the term I gratification’.  "

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      The  extent of the power of the Supreme Court  to  interfere        with  a  judgment of acquittal was raised before us  by  the        respondent’s counsel and it was contended that the jurisdic-        tion exercised by this court under Art. 136 was the same  as        that exercised by the Judicial Committee of the Privy  Coun-        cil and reliance was placed on a minority judgment by Venka-        tarama Aiyar J. in Aher Raja Khima v. The State Of  Saurash-        tra(1) where the learned judge after discussing the  various        Privy  Council  judgments  and quoting a  passage  from  the        judgment  of  this  court in Pritam Singh  v.  The  State(2)        observed:        "  The preceding article referred to in the opening  passage        is  clearly article 134.  Article 134(1) confers a right  of        appeal to this court in certain cases, in terms unqualified,        on  questions both of fact and law, and if the scope  of  an        appeal  under  Article  136 is to be  extended  likewise  to        questions  of fact, then article 134(1) would become  super-        fluous.   It is obvious that the intention of the  Constitu-        tion  in  providing  for an appeal on  facts  under  Article        134(1)(a)  and (b) was to exclude it under Article 136,  and        it strongly supports the conclusion reached in Pritam  Singh        v. The State (3)that like the Privy Council this Court would        not function as a further court of appeal on facts in crimi-        nal cases.  "        (I) [1955]2 S.C.R. 1285, 1301.        (2) [1950] S.C.R. 453, 458,        587        The State of Madhya Pradesh v. Ramakrishna Ganpatrao  Limsey        (1)  was also referred to by counsel for the respondent  and        it was contended that the Supreme Court should not interfere        with  the order of the High Court merely on the ground  that        it  took a different view of the facts.  That was an  appeal        which  had been brought on a certificate by the  High  Court        and  not by Special Leave of this Court.  That judgment  was        considered  by  a Constitution Bench in State of  Madras  v.        Gurviah  Naidu & Co., Ltd. (2) and S. R. Das,  Acting  C.J.,        delivering  the judgment of the court pointed out that  that        was  a  decision  of a bench of three judges and  not  of  a        Constitution  bench  and the observation that there  was  no        provision corresponding to s. 417 of the Criminal  Procedure        Code only emphasised that this Court should not in appeal by        Special  Leave interfere with the order of acquittal  passed        by the High Court merely for correcting errors of fact or of        law.   Gurviah  Naidu’s  case (2) was an  appeal  against  a        judgment  of acquittal and this court reversed the  judgment        saying:-        "  In  our view, the High Court erred in  holding  that  the        prosecution  had failed to establish their case and  in  ac-        quitting the accused.        This  case  negatives  the contention that  under  Art.  136        interference  by this court with findings of High Courts  in        judgments  of acquittal is not intended.  Even in  State  of        Madhya  Pradesh v. Ramakrishna Ganpatrao (1) Mahajan J.  was        of  the opinion that the Supreme Court can  interfere  where        the  High Court "acts perversely or otherwise improperly  or        has been deceived by fraud.  "        In Pritam Singh v. The State (3) Fazl Ali J. after a careful        examination  of Art. 136 along with the  preceding  articles        stated the scope of the appeal under Art. 136 to be:-        "  Generally  speaking, this court will  not  grant  special        leave,  unless  it  is shown that  exceptional  and  special        circumstances  exist, that substantial and  grave  injustice        has been done and that the case in question        (i)  A.I.R. 1954 S.C. 20.        (2)  A.I.R. 1956 S.C. 158, 161.

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      75        (3) [1950] S.C.R. 453. 458.        588        presents features of sufficient gravity to warrant a  review        of the decision appealed against.        Even the Privy Council in laying down the permissible limits        for review in criminal matters included things " so  irregu-        lar  or so outrageous as to shock the very basis of  justice        ". See Mohinder Singh v. The King (1).        An  instance of this principle is the decision of the  Privy        Council in Stephen Seneviratne v. The King (2) which will be        discussed later in this judgment and which has been approved        of by this court.        Interpreting the following words of s. 205 of the Government        of India Act, 1935, "any judgment, decree or final order  of        a court " and " it shall be the duty of every High Court  in        British  India to consider in every case ", Lord  Thankerton        in King Emperor v. Sibnath Bannerji (3) said :--        "The purpose of the provision is to confer a right of appeal        in every case that involves a substantial question of law as        to the interpretation of the Act or of any Order in  Council        made thereunder.  "        One  of the questions for decision in that case was  whether        an  appeal lay in cases of habeas corpus.   Lord  Thankerton        there observed :        "  In the absence of an express exception of  habeas  corpus        cases,  and  having  in view the terms and  purpose  of  the        section,  their Lordships are unable to limit tile terms  of        the  section  by mere construction so as  to  exclude  these        cases from its operation.  "        In Art. 136 the use of the words " Supreme Court may in  its        discretion grant special leave to appeal from any  judgment,        decree,  determination,  sentence or order in any  cause  or        matter passed or made by any court or tribunal in the terri-        tory of India " show that in criminal matters no distinction        can  be made as a matter of construction between a  judgment        of conviction or acquittal.  In Bhagwan Das v. The State  of        Rajasthan(4)  the  following, observation  of  the  Judicial        Committee of the Privy Council in Stephen    Seneviratne  v.        The King(2) at p. 299:             (1) (I932) L.R. 59 I.A. 233, 235.(3)  (1945) L.R.  72        I.A. 241, 255.             (2) A.I.R. 1936 P.C. 289.(4) A.I.R. 1957 S.C. 589.                                    589        ".. ...... there are here no grounds on the evidence,  taken        as  a  whole, upon which any tribunal could  properly  as  a        matter of legitimate inference, arrive at a conclusion  that        the appellant was guilty....... "        was quoted with approval and after an examination of all the        facts  and circumstances of the case the Supreme  Court  re-        versed  the judgment of conviction by the High  Court  under        Art. 136.  The question for decision in the present case  is        whether  it falls within the limits laid down in the  above-        mentioned cases.  This court will not readily interfere with        the findings of fact given by the High Court but if the High        Court  acts perversely or otherwise improperly  interference        will be called for.        The  findings of the High Court in the present case are,  to        say the least, halting, and the approach to the whole  ques-        tion  has  been such that it falls within what  Mr.  Justice        Mahajan in State of Madhya Pradesh v. Ramakrishna  Ganpatrao        (1) described as " acting perversely or otherwise improperly        ".  Although the learned High Court Judge has in the  begin-        ning of the judgment mentioned the presumption which  arises        under s. 4 of the Prevention of Corruption Act (II of 1947),

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      the following passage in the judgment:        "  in any case, the evidence is not enough to show that  the        explanation  offered  by the accused  cannot  reasonably  be        true, and so, the benefit of doubt must go to him, "        is  indicative of a disregard of the presumption  which  the        law requires to be raised under s. 4. The relevant words  of        this section are:        "  Where  in  any trial of an offence  punishable  under  s.        161        ................it    is    proved    that     an        accused..........   person has accepted................  any        gratification  (other than legal  remuneration).........from        any person,it shall be presumed unless thecontrary     is        proved  that he accepted .................. that  gratifica-        tion  as a motive or reward such as is mentioned in the said        section 161 ......................."        Therefore  where it is proved that a gratification has  been        accepted, then the presumption shall at once arise        (i)  A.1.R. 1054 S.C. 20.        590        under the section.  It introduces an exception to the gener-        al  rule  as to the burden of proof in  criminal  cases  and        shifts the onus on to the accused.  It may here be mentioned        that  the  legislature has chosen to use  the  words’  shall        presume’ and not ’may presume’, the former a presumption  of        law  and latter of fact.  Both these phrases have  been  de-        fined  in the Indian Evidence Act, no doubt for the  purpose        of that Act, but s. 4 of the Prevention of Corruption Act is        in part materia with the Evidence Act because it deals  with        a branch of law of evidence, e.g., presumptions, and  there-        fore  should  have the same meaning.  " Shall  presume"  has        been defined in the Evidence Act as follows:        "  Whenever it is directed by this Act that the Court  shall        presume  a fact, it shall regard such fact as proved  unless        and until it is disproved.  "        It is a presumption of law and therefore it is obligatory on        the  court to raise this presumption in every  case  brought        under  s.  4  of the Prevention of  Corruption  Act  because        unlike the case of presumptions of fact, presumptions of law        constitute  a  branch of jurisprudence.   While  giving  the        finding quoted above the learned judge seems to have  disre-        garded  the special rule of burden of proof under s.  4  and        therefore  his approach in this case has been  on  erroneous        lines.        The  judgment  also  shows that certain  salient  pieces  of        evidence were missed or were not properly appreciated.        At  the time when the penalty notice was issued under s.  28        of the Income-tax Act the respondent was not the  Income-tax        Officer  at Coimbatore but by June 6, he had been posted  at        Coimbatore  and  the  note on the Penalty  File  dated  June        6,1951:        "put up proposal  to I.A.C. for levy of standard penalty,"        was made by him.  Although this proposal was made on June 6,        1951, it is not clear as to what final orders were passed in        these  proceedings and when.  At least there is  nothing  to        indicate that any intimation was given to the complainant in        regard  to this matter.  The complainant has stated on  oath        as P.W. 8:-        591        "  I alone went to the accused on 28th September, 1951.   He        then told me that the penalty paper was not disposed of  and        that  the  accounts for the current year had not  also  been        gone through."        On the day following this the respondent asked the complain-        ant for illegal gratification of Rs. 1,000.  Counsel for the        respondent  contended  that there was no  occasion  for  the

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      respondent  to  say anything about the  penalty  proceedings        because  as far as he was concerned the  recommendation  had        already  been made by him but the real question  is  whether        the complainant was told as to what had happened or had  any        knowledge of this.  He states that he had none and there  is        nothing to indicate that he bad.        The  respondent  has then stated that  the  complainant  was        known  to  him since 1942 when he, the respondent,  was  the        Head  Clerk of the Appellate Assistant Commissioner  of  In-        come-tax  and  that  is the reason why towards  the  end  of        August  or the beginning of September when be  casually  met        the  complain. ant on the road, he told him that he  was  in        financial  difficulties  and the complainant offered  him  a        loan  of  Rs. 1,000 to be returned in easy  instalments  and        that  he did not know at that time that the complainant  was        an  assessee before him.  This statement of  the  respondent        has -been accepted by the High Court without considering the        following  important facts.  Notice was issued to  the  com-        plainant  and he filed his return on August 11,  1951.   The        notice  must  have been issued to the complainant  under  a.        22(2) of the Income-tax Act by the respondent himself as  he        was at that time the Income-tax Officer.  So it is difficult        to  believe  his statement about his not  knowing  that  the        complainant was an assessee before him and it is  improbable        that the respondent would mention his financial troubles  to        a  more  or less casual acquaintance who  has  neither  been        shown  to  be  a banker, nor a money lender  nor  a  wealthy        person.   The  complainant has stated that  he  visited  the        respondent on 6th or 7th October, 1951, when he asked him if        he had brought the money.  The complaint replied that he had        no money to spare as he had purchased a house        592        and  he  also asked him if the respondent had  finished  the        assessment.  The latter’s reply was that he would look  into        the matter and also told him that the complainant might  pay        half  the amount (of the illegal gratification)  before  the        deepavali  time.. This statement the respondent  has  denied        but  the  statement of the complainant as to his  having  no        money  as  he had purchased a house has not  been  seriously        challenged in cross-examination.        The  complainant had been asked to produce the accounts  and        be did produce them on September 27.  The notes made by  the        respondent  in P-7 and P-7(a) show that the accounts of  the        complainant were not being accepted in regard to  Coimbatore        Hotel.  The portion of the order was :-        "  All  the defects that are usual in hotel  accounts  exist        here."        In regard to Bhavanisagar hotel the note stated:  :--        "  Purchases are not fully supported and sales are  reckoned        from till takings."        On  October  1,  1951, the assesses had  filed  his  written        statement and also some other documents.  Nothing more seems        to have been done till November 7, when the relevant part of        the note on the file is:        "I  have been keeping this in order to compare  the  results        with other nearby hotels."        As  to why no enquiries could be made in the whole  of  this        period is not clear from the assessment record and it  ]ends        support  to  the prosecution case that  the  respondent  was        making approaches to the complainant to get money from  him.        The respondent during the pendency of assessment proceedings        of  the complainant allowed the complainant to visit him  at        his  house and even paid visit to his cafe.  Even  according        to  the  findings  of the High  Court  the  complainant  was        "needing  the  favours"  of the respondent who  on  his  own

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      showing  was  himself in dire need of a thousand  rupees  as        he  had  succeeded in collecting only a thousand  rupees  by        November2, and needed twice that amount for his son’s premi-        um or security as he chooses to call it.  No importance  was        attached to this aspect of the case by the learned        593        judge  of the High Court.  In our opinion the learned  trial        judge  correctly  appreciated this part of  the  prosecution        case  and his judgment is not, as tile High Court has  said,        coloured by nere suspicion.        On November 6, 1951, Circle Inspector Munisami contacted the        complainant  and  arrangement was made for Rs. 1,000  to  be        paid by the complainant to the respondent and the money  was        actually  taken  by the complainant and offered to  the  re-        spondent  on November 8 which the respondent did not  accept        as  he had received an anonymous letter Ex.  P-18 which  was        dated  November  6, 1951 in which the  respondent  had  been        warned that Malayalam people were attempting to "ruin  him".        In  spite of this warning the respondent continued  to  have        truck  with  the complainant and actually accepted  Rs.  800        from  him.   It is true that when soon after the  money  was        paid  and the Inspector P. W. 12 and the Magistrate P.W.  13        arrived  at the house of the respondent and asked him  about        this  money he stated that he had taken it as a loan but  in        the  context it assumes a different complexion.  The  state-        ment of the Magistrate P.W. 13 was:-        "  While the mahazar. was being prepared the accused  volun-        teered and told me that he had received the 800 rupees as  a        loan from P.W. 8-the complainant."        This  witness  had also stated that when he  went  into  the        verandah  of the house, he asked the respondent  whether  he        had  received an illegal gratification from the  complainant        and  also asked him to produce the money.  The  accused  did        not  say anything but got up from the chair and tried to  go        inside  the house which he was prevented from doing  by  the        Inspector P. W. 12.  The witness added:        " The accused was seen trembling and meddling with something        under  the towel.  I asked the accused to remove the  towel.        The  accused removed the towel.  I saw some bulging  at  his        waist  in  the dhoti be was wearing.  I asked him  again  to        produce the currency notes.  He produced them from the folds        of  the dhoti be was wearing.  When producing  the  currency        notes the accused did not say anything."        594        No  real cross-examination was directed against  these  por-        tions of the statement of the Magistrate P.W. 13 nor has the        High  Court  correctly appreciated them or  given  them  due        weight.   The respondent produced before the  Special  First        Class  Magistrate on July 11, 1952, an unsigned promote  for        Rs.  1,000  executed by him in favour  of  the  complainant.        That promote was not found in the house when the search  was        made by the Deputy Superintendent of Police on November  19,        1951,  and it is not explained why the promote  should  have        been  made for Rs. 1,000 when actually the amount  paid  was        only  Rs.  800 and why the respondent offered to  give  this        promote to the complainant without receiving full considera-        tion.        These salient features of the case do not seem to have  been        properly  appreciated  or given due weight to  by  the  High        Court and in our opinion the learned judge’s approach to the        question whether the sum of Rs. 800 was an illegal  gratifi-        cation or a loan is such that the judgment falls within  the        words of Mahajan J. in Ramakrishna’s case (1), i.e. that the        High  Court  has acted perversely or  otherwise  improperly.        The  evidence and the circumstances lead to  the  conclusion

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      that the transaction was not one of loan but illegal  grati-        fication.        In  view of the finding that the sum of Rs. 800 was a  bribe        and  not a loan it is not necessary to consider  whether  in        this case the loan would be an illegal gratification  within        s.  4  of the Prevention of Corruption Act (II of  1947)  or        not.        We would, therefore, allow this appeal, set aside the  judg-        ment and order of the High Court of Madras and restore  that        of the Special Judge of Coimbatore convicting the respondent        of  the  offence he was charged with.  The  respondent  must        surrender to his bail bond.        Appeal allowed.        (i) A.I.R. 1954 S.C. 20,        595