Jaganmohan Reddy, J.
(1) The accused has been charged for offences under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act (Act II of 1947) (herein after called 'the Act'). The Special Judge did not record any finding under Section 161 of the Indian Penal Code but convicted the accused under Section 5(1)(d) read with Section 5(2) of the Act with the aid of the presumption under Section 4(1) of the Act and sentenced him to rigorous imprisonment for one year and a fine of Rs. 100/-
(2) The Appellant is an Assistant Draughtsman in the Southern Railway in the office of Executive Engineer, Guntakal. P. W. 1, C. V. Naidu, had obtained a contract from the Southern Railway for construction of a platform in Gooty, of the value of rupees three lakhs. The accused, who was deputed in the first week of February 1961, supervised the construction work from 10-4-1961 to 29-4-1961. He was relieved on 6-5-1961 he was working at Guntakal from 9-5-1961. It is admitted in evidence that between 9-2-1961 and 9-4-1961 he was supervising other works. It is the case of the prosecution that this accused along with one K. A. Viswanathan, Assistant Inspector of Works, and one E. O. Mollan, Permanent Way Inspector were harassing P. W. 1, giving him a lot of trouble in his work, and demanding bribes. P. W. 1 having come to know that the Inspector of Police. Special Police Establishment, Hyderabad (P. W. 7) came to Gooty and was staying in the inspection bungalow, went to him on 16-5-1961 and complained about the demands made by this accused and others and gave a written complaint (Ex. P. I). P. W. 7 is alleged to have asked P. W. I whether he was prepared to give a bribe, and when P. W. I said that he was so prepared, P. W. 7 asked P. W.
1 to meet him at 3 A. M. on 17-5-1961.
(3) The accused seems to have met P. W. 1 on 16-5-1961 at 7. 30 P. M. on platform after he returned from Guntakal and demanded Rs. 100/- towards bribe. P. W. 1 agreed to pay it, and the accused said that he would visit P. W. 1's house at 6 A. M. 17-5-1961. According to P. W. 1, Viswanathan, the appellant in Criminal Appeal No. 744 of 1962, also met him earlier on the same day. He (P. W. 1 ) told Viswanathan that he would pay him the amount the next morning. Viswanathan said that he would come to P. W. 1's house at 5-30 A. M. on 17-5-1961.
(4) After this, P. W. 1 met P. W. 7 at 9 P. M. that day (16-5-1961) and told him about the demands of the accused, Viswanathan and Mollan. It was then that P. W. 7 asked P. W. 1 to meet him at 3 A. M. at the travellers' bungalow. On 17-5-1961 at about 3 A. M. P. M. 1 again went to the travellers'' bungalow with four hundred-rupee currency notes, and there he met besides P. W. 7, two others, P. W. 4 a Telephone Supervisor. P. W. 2 a partner of P. W. 3 an Agricultural Demonstrator and P. W. 4 a Telephone Supervisor. P. W. 2 a partner of P. W. 1 is said to have accompanied him. P. W. 7 then took the currency notes from P. W. 1 and explained how the trap works. P. W. 7 dusted the currency notes with phenolphthalein powder. He brought a glass tumbler of water and mixed soda-bicarbonate producing a solution which is colourless. P. W. 7 then touched the dusted currency notes, and his hand immersing it in that solution. The solution then turned into pink colour. P. W. 1 then understood the significance of the test. P. W. 2 and P. W. 1 were searched by P. W. 7 and he made sure that they had no money. The currency notes dusted with phenolphthalein were returned to P. W. 1 by P. W. 7 with a direction that he should pay one hundred rupee currency notes to the accused, one hundred-rupee currency notes to Viswanathan and two hundred-rupee currency notes to Mollan.
P. W. 2 was asked to accompany P. W. 1 to his house and see what transpires between P. W. 1 to his house and see what transpires between the accused, Viswanathan and P. W. 1. In case the accused and Viswanathan demanded and accepted the bribe, he (P. W. 2) should knock at the door of the room in which the raiding party will be waiting. A panchanama was drafted at the travellers'' bungalow recording the giving of currency notes, and the numbers thereof as per Ex. P. 2. At about 4-30 A. M. on 17-5-1961 P. Ws. 1 and 2 left the travellers' bungalow followed by the raid party.
(5) P. Ws. 3, 4 and 7 waited in the rear room which is adjacent to the drawing room of P. W. 1. While P. W. 1 sat in the drawing room, P. W. 2 was standing at the door of the drawing room. Between 5-30 A. M. and 6 A. M. the accused and Viswanathan came to P. W. 1's house and entered his room. Both the accused took their seats and asked him to give the bribe amounts, whereupon P. W. 1 offered the accused one of the dusted hundred-rupee currency notes. The accused took the currency note and put it in his dhoti folds at the waist. He (P. W. 1) also offered other such hundred-rupee not to Viswanathan and he kept the same in his bush shirt pocket. P. W. 2 then tapped the door of the room in which the members of the raiding party were waiting. Both the Inspectors entered the drawing room, disclosed their identity, and asked the accused to produce the bribe amount. The accused took out the currency note from his dhoti folds, and placed it on the table. Viswanathan also produced the currency note. The numbers on the currency notes were compared and tallied. Phenolphthalein test was then conducted, and the same yielded positive result. The person of P. W. 1 was also searched and he had tow-hundred-rupee currency notes with him. The panchanama (Ex. P. 3) was prepared, and he attested the same. M. O. 1 was recovered from the accused and M. O. 2 was recovered from Viswanathan.
(6) In support of this case of P. W. 1, P. Ws. 3 and 4 have been examined. P. W. 7 speaks to P. W. 1 having come to him and having complained against this accused and others and having given Ex. P. 1, his subsequently meeting P. W. 1 at 9 P. M. on 16-5-1961 and informing him that the accused and others have demanded bribe, his meeting P. W. 1 at 3 A. M. on 17-5-1961 and the phenolphthalein test being demonstrated to P. W. 1 in the presence of P. Ws. 3 and 4, his giving notes to P. W. 1 and recording of their numbers, his visiting P. W. 1's house along with P. Ws. 3 and 4 and being informed by P. W. 2 the fact of the accused and Viswanathan taking money at 6 A. M. on 17-5-1961 and their going into the room and asking the accused and Viswanathan to produce the notes. They further spoke of the accused and Viswanathan keeping silent first and producing the notes only on making further demands.
(7) The accused in his statement under Section 342 of the Civil Procedure Code said that he supervised the work only for 15 days about the middle of April, 1961, and that from 6-5-1961 onwards he was not at Gooty, having been transferred to Guntakal where he was working at that time. He further stated that P. W. 1 wanted him to allow to mix to C. ft. of jelly and cement at a time, that he did not allow mixing than 4 c. ft., that he told P. W. 1 that if he exceeded the quantity he should get permission from the higher authorities, that P. W. 1 requested him to show 25 lakhs as he (P. W. 1) sustained much loss, that he did not agree and therefore P. W. 1 was angry with him, that he did not demand any bribe nor was the amount paid to him as a bribe. His case was that on 16-5-1961 he was not at Gooty, that he was at Guntakal and reached Gooty only at 11 P. M. that P. W. 1 did not meet him on the platform at 7.30 P. M., that, on the other hand, P. W. 1 met him on the morning of 16-5-1961 while he was going to Gooty Railway Station, that he told P. W. 1 that he would go to his (P. W. 1's ) house on 17-5-1961 to give him a printed invitation card for his marriage, as 16-5-1961 was not auspicious being a Tuesday and that was in the presence of the Assistant Inspector of Works, Srinivasa Murthy (D. W. 5).
Accordingly, he and Viswanathan on being invited by P. W. 1 went to the house of P. W. 1 on the morning of 17-5-1961 and never demanded any bribe. He gave a printed invitation card for his marriage to P. W. 1 P. W. 1 congratulated him and gave one hundred-rupee currency note stating that it was a present for the marriage but he did not agree to receive it. P. W. 1 then said that he should buy some articles for him worth Rs. 100/- if he decided not to take the amount as a present. Then he took the hundred rupees note and kept in the waist folds of his dhoti. Then the raiding party came in. The Inspector Officer did not ask him to produce the bribe amount but asked him to produce the bribe amount but asked him to produce the amount which he took from P. W. 1. He immediately produced the amount and gave it to the Inspecting Officer. According to him, it is not correct to say that he was questioned more than once. He admitted that there was a change of colour on the phenolphthalein test being performed, and stated that due to the grudge which P. W. 1 had against him for not helping him in the contract work, he was angry and foisted the case against him. In support of his version, the accused examined seven witnesses.
(8) The Special Judge held that the accused had admitted that P. W. 1 was angry with him, and in the circumstances, it was difficult to postulate the accused going to the house of P. W. 1 or of inviting him to the marriage. Further if, as stated by the accused, P. W. 1 had torn the invitation card given to him, the accused would have raised a hue and cry. The following observations of the Special Judge may usefully be extracted :-
'P. W. 1 is a decoy and apart from that he no doubt prevaricated in the box and his case that the money was paid for not harassing him in his works cannot be accepted as the accused was no longer at Gooty. But I do not think the mere circumstances that P. W. 1 prevaricated or that there are several discrepancies in his evidence is enough to probabilise the defence version. It may be the prosecution version in full of inconsistencies but when once the receipt of the money is admitted, the burden shifts on to the accused to rebut the presumption by a reasonably probable explanation. Therefore, it is necessary to see whether the explanation can be accepted as reasonably reasonable.
X X X If really the relation between the accused and P. W. 1 were strained and no love lost between them it is difficult to believe that the accused would have really bothered to go all the way to his house at 6-30 a. m. in the morning to issue an invitation card personally, though he met him the previous day ...................... Besides wedding gift normally takes the shape of an article. No doubt the accused says that P. W. 1 told him that if he does not care to accept the gift he should bring articles worth Rs. 100/-. Curiously the accused did not say what articles P. W. 1 wanted.'
Again at another place the Special Judge says :
'The circumstances that the accused has nothing more to do with the work of P. W. 1 or that P. W. 1's work was over, does not by itself make any difference as what is paid must be considered as a reward for past services or for future good-will.'
In the end he concludes thus :
'The prosecution has established that the accused has accepted the same and the same is not his legal remuneration and therefore the presumption under Section 4(1) of the Act arises and the same is not rebutted. Even assuming he accepted the hundred rupees currency note as gift, it amounts to a bribe of illegal gratification within the meaning of section 5(1)(d) of the Act. Therefore I find the prosecution has established the guilt of the accused under Section 5(1)(d) of the Act. The only question that remains is the question of sentence. Taking all the circumstances into consideration, I find that the ends of justice will be amply met by sentencing the accused to one year R. I, and a fine of Rs. 100/- and in default to pay the fine a further period of 15 days R. I. under Section 5(2) of the Act.'
(9) It is apparent from these observations that the Special Judge has not recorded any finding under Section 161 of the Indian Penal Code, for he applied the presumption under Sec. 4(1) of the Act for a conviction under section 5(2) of the Act.
(10) When the appeal came before our learned brother, Mohd. Mirza, J. the learned advocate for the accused appears to have contended that this presumption is not available for a conviction under Section 5(2) of the Act and having regard to this submission our learned brother referred this case to a Bench with the finding order :
'As an important question involved in these appeals viz., if a person is charged under section 161 of the Indian Penal Code and Section 5(2) of the Prevention of Corruption Act and the charge under Section 161. Indian Penal Code fails and the person is convicted only under Section 5(2) of the Prevention of Corruption Act, whether it is permissible to draw a presumption as laid down in section 4(1) of the Prevention of Corruption Act. I refer both these cases to a Bench.'
(11) The question that arise for determination are :
(1) the scope and ambit of Sections 4(1) and 5(2) of the Act and (2) whether the presumption under section 4(1) of the Act is confined only to offences under Section 161 I. P. C. or whether it is available for a conviction under section 5 (2), and (3) if the presumption under Section 4(1) of the Act is not available for conviction under Section 5(2) of the Act, what is the rule of evidence applicable for a conviction under that Section. Shri Adavi Rama Rao, the learned Advocate for the accused, further contends that by reason of the fact that the accused was charged under section 161 I. P. C. and section 5(2) of the Act but convicted only under Section 5(2) of the Act, he must be deemed to have been acquitted of the offence under Section 161 I. P. C. In any case, the offence under Section 161 I. P. C. In any case, the offence under Section 5(2) of the Act has not been made out, and therefore the accused is entitled to an acquittal on both counts.
(12) The first contention will depend upon the construction of Section 4(1) and Section 5 of the Act. These may now be read :
'4 (1). When in any trial of an offence punishable under Section 161 or section 165 or 165A of the Indian Penal Code it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161 or, as the case may be, without consideration or for a consideration which he knows to be adequate.'
5 (1) A public servant is said to commit the offence of criminal misconduct in the discharge of his duty-
(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Section 161 of the Indian Penal Code; or
(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, to be likely to be concerned in any proceeding or business transacted or about, to be transacted by him, or having or of any public servant to whom he is subordinate or from any person whom he knows to be interested in or related to the person so concerned;
(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or
(d) if he, by corrupt or illegal means or by otherwise abusing his position as a public servant; obtains for himself or for any other person any valuable thing or pecuniary advantage.
(2) Any public servant who commits criminal misconduct in the discharge of his duty shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine;
provided that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year.
(3) In any trial of an offence punishable under sub-section (2) the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income may be proved and on such proof the court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty and his conviction therefor shall not be invalid by reason only that it is based solely on such presumption'.
(13) We will first consider the scope of section 5 of the Act. This section creates a new offence termed criminal misconduct in the discharge of duty by a public servant and defines it in clause (a), (b), and (d) of Sub-section (1) of that section. The offence is clauses (a) and (b) somewhat enlarge the offences described in sections 161 and 165. Indian Penal Code, and makes it habitually accepting or obtaining bribes by a public servant a distinct offence. It means that the prosecution will have to lead evidence with respect to specific acts of accepting bribes on several occasions, or they can prove it otherwise namely, by establishing that the accused person or any other person on his behalf is in possession of pecuniary resources or property disproportionate to his known sources of income for which the accused person cannot satisfactorily account and by the operation of the presumption in sub-section (3), an accused person is deemed of his official duty. Clause (c) of Section 5(1) of the Act is for all practical purposes the same as S. 409, Indian Penal Code and sometimes it is stated that S. 409, Indian Penal Code is redescribed in clause (c) of S. 5(1) so far as it relates to offences by public servants.
It may however, be pointed out that MENSREA for purposes of S. 5(1)(c) is enlarged, Clause (d) creates a new offence of obtaining any valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his official position. The object of this section, it may observed, is that for purposes of S. 5(1) (a) and (b) there must be habitual commission of the crime. Any stray or single instance would not suffice to bring within the ambit of the section the offence as contemplated in Sections 5(1) (a) and (b) there must be habitual commission of the crime. Any stray or single instance would not suffice to bring within the ambit of the section the offence under Section 5(1)(a) and 5(1)(b) are aggravated forms of the offence than those under sections 161 and 165, Indian Penal Code.
(14) Sub-section (3) of Section 5 as observed by their Lordships of the Supreme Court in Om Prakesh v. State of U. P. (S) : 1957CriLJ575 .
'is an important piece of legislation to the effect that where a person is charged under S. 5(1) and it is found that the accused person cannot satisfactorily account for the pecuniary resources or property disproportionate to his known sources of income, then the fact that he has such extensive pecuniary resources or property is sufficient to presume, until the contrary is proved, the accused person was guilty of criminal misconduct in discharge of his official duty, and a conviction for that offence shall not be invalid by reason only that it is based solely on such presumption. It is clear, therefore, that where a person is charged with criminal misconduct and it is seen that he is in possession of property or income which could not have been amassed or earned by the official remuneration which he had obtained, then the court is entitled to come to the conclusion that the amassing of such wealth was due to bribery or corruption and the person is guilty of an offence of criminal misconduct. Such a presumption cannot be drawn in the case of prosecution under sections 161, 165 and 409, Penal Code.'
In so far as S. 5(1)(d) of the Act is concerned, the offence is not merely confined to a direct benefit obtained by a public servant for himself or for any other person or a third party. The case of wrongful loss to the Government by benefiting third parties squarely falls within it.
(15) The Supreme Court in M. Narayana v. State of Kerala, AIR 1963 S. C. 116 was considering the act of an accused person in undervaluing Government lands for purposes of benefiting his brother-in-law and it was contended that under S. 5(1)(d) since the public servant has not benefited himself, he cannot be held guilty. Subba Rao, J. delivering the judgment of their Lordships observed at p. 1118 as follows:-
'The Act was brought into to purify public administration. When the Legislature used comprehensive terminology in S. 5(1)(d) to achieve the said purpose, it would be appropriate not to limit the content by construction when particularly the spirit of the statute is in accordance with the words used therein.
The juxtaposition of the word 'otherwise' with the words 'corruption or illegal means'. and the dishonesty implicit in the word (Abuse) indicate the necessity for a dishonest intention on the part of the public servant to bring him within the meaning of the clause'.
(16) Before considering the applicability of the presumption under Section 4 it is necessary to ascertain the ingredients of the offence under Section 161, Indian Penal Code which are as follows :
(i) That the accused at the time of the offence was, or expected to be, a public servant,
(ii) That he accepted, or obtained, or agreed to accept, or attempted to obtain from some person a gratification,
(iii) That such gratification was not a legal remuneration due to him.
(iv) That he so accepted, etc. such gratification as a motive or reward, for (a) doing or forbearing to do an official act; or (b) showing, or forbearing to show favour or disfavour to some one in the exercise of his official functions; or (c) rendering or attempting to render, any service or disservice to some one, with the Central or any State Government or Parliament or the Legislature of any State, or with any public servant.
(17) Before a conviction can be recorded under this section, conclusive evidence is required on all these points against a public servant. But in practice it was found that the fourth requirement, which is the establishment of a motive for receiving the amount, was difficult of proof. Because of this difficulty, special provision in the Prevention of Corruption Act regarding the presumption against an accused person was enacted. The presumption under section 4(1) will only arise upon proof that the accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself or for any other person any gratification or any valuable thing from any person. This presumption overrides sections 101 - 114, Evidence Act, and is confined to the necessity to prove motive or reward as mentioned in Section 161 of the Indian Penal Code; or the absence or inadequacy of consideration presumably with reference to Section 165 of the Indian Penal Code. Ordinarily the prosecution has to prove the motive or reward under Section 161 Penal Code or absence or inadequacy of consideration under Section 165 Indian Penal Code, because such motive or reward or such absence or adequacy of consideration is part of the very offence under Section 161 or Section 165 I. P. C. But, as already stated, it is difficult to prove this element, having regard to the multifarious ways in which a public servant can confer favour or disfavour in the discharge of his official duties, and hence the presumption under Section 4(1) that the accused accepted the gratification as a motive or reward.
Once the other three ingredients of the offence are established, the accused must be deemed to have had the necessary motive specified in section 4(1) unless he rebuts it. The purpose is to lay down that a Court shall draw that inference from proved facts. But it is only an inference and not evidence, and may be overcome by evidence. In other words, the proof by the prosecution of the first three ingredients does not necessarily imply that the accused is guilty of the offence. What it does mean is that it will be open to the accused to establish that the motive which is inferred against him is not true, and rebut the presumption raised by this section by establishing that he did not accept or agreed to accept the money with any corrupt motive. It needs to be observed that the necessity for the presumption to establish the other three ingredient beyond a reasonable doubt has in any way been altered, and it still remains its duty to establish them. Once the prosecution has established those three elements, the offence under Section 161, I. P. C. can be said to have been brought home by the aid of the presumption.
(18) That this is the object of the section has been stated by a Bench of the Calcutta High Court in M. C. Mitra v. State, : AIR1951Cal524 . P. B. Mukharji, J. observed at p. 527 thus:
'In my judgment this does not mean that the burden of proof on the prosecution to establish the acceptance or the agreement to accept or the obtaining or the agreement to obtain the gratification on the valuable thing is at all displaced by this section. That burden still remains on the prosecution and it is only when the prosecution has discharged that burden that the presumption of (a) motive or reward of (b) absence or inadequacy of consideration will be made against the accused. But not until then such presumption can operate against the accused. Notwithstanding section 4, Prevention of Corruption Act, 1947, the burden still remains upon the prosecution to prove first that the accused has accepted or agreed to obtain the gratification or the valuable thing and this proof must be in accordance with the standard of proof laid down by section 3, Evidence Act. The learned Standing Counsel argued that it was no longer necessary to prove even this and only about fifty per cent or a lower standard of proof will be sufficient. I entirely reject that argument. Proof here has only one standard and that is provided by section 3, Evidence Act. I am prepared to accept any other standard or proof by percentage or plausibility.'
A little later he further observed thus :
'The presumption against the accused under section 4, Prevention of Corruption Act, 1947 regarding the motive or reward or absence or inadequacy of consideration is a rebuttable presumption. that presumption may be rebutted not only by any oral testimony of witnesses call on behalf of the accused under Section 142, Criminal Procedure Code and by any document produced on behalf of the defence of the accused or by the surrounding circumstances.'
(19) With great respect, we are in entire agreement with the former observations. In so far as the latter observations extracted above, certain observations in two Supreme Court cases are said to be in conflict. State of Maharashtra v. Laxman, Judged construed the observations of Sinha AIR 1960 SC 7. Kapoor, J. observed thus :
'All that the learned Judge there meant to say was that the evidence of the statement of the accused in the Circumstances of that case was not sufficient to discharge the onus but that does not mean that in no case can the statement of an accused person be taken to be sufficient for the purpose of discharging the onus if a statute places the onus on him.
Under section 342, Civil Procedure Code the Court has the power to examine the accused so as to enable him to explain any circumstances appearing in evidence against him. Under sub-section (3) of that section the answers given by an accused person may be taken into consideration in such enquiry or trial. The object of examination under Section 342 therefore it to give the accused an opportunity to explain the case made against him and that statement can be taken into consideration in judging the innocence or guilty of the person so accused. Therefore. if the courts below have accepted has discharged the onus which was placed on him by section 66 (2) of the Act (Bombay Prohibition Act) (Act 25 of 1942)'.
(20) The observation of Sinha J. in : 1960CriLJ131 were that there was no acceptable evidence beyond the bare statement of the accused that the contrary of what has been established because the requirement of the section viz., section 5(3) of the Act, is that the accused person must be presumed to have had criminal intention in the discharge of his official duty unless the contrary is proved. The words of the statute are peremptory and the burden lie on the accused to prove the contrary.
(21) It is no doubt true that the observations of Kapur J. in : AIR1962SC1204 (Supra) were made in respect of presumption under another Act. Bur nonetheless the presumption which places the onus on the accused is similar in respect of both the Acts viz., the Prevention of Corruption Act and the Bombay Prohibition Act, in that both made an inroad on the principle that it is for the prosecution to establish all the elements of an offence before the accused is convicted of it.
(22) In the second case Dhanvantrai Balwantrai Desai v. State of Maharashtra, 1963 Mad W. N. 246 : 1964CriLJ437 their Lordships against considered the presumption under section 4(1) of the Act. Mudholkar, J. stated the principle at p. 251 (of Mad W N) : (at p. 580 of AIR ) as follows :
'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 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation is a true one. The words 'unless the contrary s proved'. which occur in this provision make it clear that the presumption had 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'.
(23) After considering the observations of the Madras High Court in State of Madras v. Vaidyanatha Iyer, 1958 Mad W N (Notes) 31 : 1958CriLJ232 as to how the burden which is shifted to the accused under S. 4(1) of the Prevention of Corruption Act, is to be discharged, it was stated at p. 252 (of Mad W N) : (at p. 580 of AIR ) as follows :
'The basis of the decision of this court evidently was that a presumption of law cannot be successfully rebutted by merely by raising a probability however, reasonable, that the actual fact is the reverse of the fact which is presumed. Something more than raising a reasonable probability is required for rebutting a presumption of law. The bare word if 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'.
(24) The above passage might lend support to the contention that the explanation of the accused under S. 342, Cri. P. C. can in no circumstances amount to a rebuttal of proof contra of that which is presumed against him. But close reading of what is presumed against him. But close reading of what fell from their Lordships in the decision referred to, would negative this absolute rule, for which it is contended. What in our view has been laid down is that the explanation of the accused must not merely make it reasonable or probable, but that explanation when taken into consideration, must meet the requirement of the definition of 'proof' under Section 3 of the Evidence Act. This definition states that
'a fact is said to be proved when after consideration the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.'
Their Lordships have referred to this definition and and they could not have intended to rule out the Explanation to section 342 Cr. P. C. altogether, because according to the explanation the statement of the accused given under S. 342, Cr. P. C. is a matter which must be taken into consideration by the Court.
(25) In Hate Singh v. State of Madhya Bharat, : AIR1953SC468 at p. 469 the effect of the statements given by an accused under sections 208, 209 and 342 Cri. P. C. was considered. Bose J. speaking for the Court summed up the law at p. 469 as follows :-
'Now the statements of an accused person recorded under Ss. 208, 209 and 342, Criminal P. C. are among the most important matters to be considered at the trial. It has to be remembered that in this country an accused person is not allowed to enter the box and speak on oath in his own defence. This may operate for the protection of the accused in some cases but experience elsewhere has shown that it can also be a powerful and impressive weapon of defence in the hands of an innocent man. The statements of the accused recorded by the Committing Magistrate and the Sessions Judge are intended in India to take place of what in England and in America he would be free to state in his own way in the witness-box. They have to be received in evidence and treated as evidence and be duly considered at the trial. (Ss. 287 and 342)
This means that they must be treated like any other piece of evidence coming from the mouth of a witness and matters in favour of the accused must be viewed with as such defence and give as much weight as matters which tell against him. Nay more. Because of the presumption of innocence in his favour even when he is not in a position to prove the truth of his story, his version should be accepted if it is reasonable and accords with probabilities unless the prosecution can prove beyond reasonable doubt that it is false.'
(26) Though no doubt these observations were made at a time when the accused were not afforded an opportunity to give evidence, their force is not impaired, even after the accused have been given an option to give evidence, having regard to the inhibition of court from drawing an adverse inference by reason of an accused not giving evidence.
(27) In In re Ramdasappa, ILR (1959) Andh Pra 797 a Bench of this Court, to which one of us was a party, rejected the submissions of the then Public Prosecutor that the observations of Bose. J. can no longer be held to be applicable, inasmuch person has been given an option to examine himself as a witness, and that the very basis of the judgment had therefore been destroyed by reason of that section. It was observed at p. 809 as follows :-
'We are not impressed with this contention inasmuch as under Section 342A while the accused has been given an option to give evidence on oath, the failure to do so cannot be made the subject of comment by any of the parties or the Court or give rise to any presumption against himself or any person charged together with him at the same trial. The position is, therefore, unaltered and the statements under Section 342 have to be considered in the same manner as would have been the case, if section 342-A had not been enacted.'
(28) It may be noted that Bose, J. has emphasised two aspects in relation to the statement of the accused, firstly, that it is to be treated as evidence in the case and secondly, that even when he is not in a position to prove the truth of his story, his version has to be accepted if it is reasonable and accords with the probabilities in the prosecution case, unless the prosecution can prove beyond reasonable doubt that it is false. It is true that the statement of an accused by virtue of the general presumption of innocence of the accused may in most cases displace the prosecution case. All that is necessary is that the explanation of the accused makes the prosecution story improbable, and in such a case accused will be entitled to the benefit of doubt. But where a presumption such as the one under section 4(1) or section 5 of the Act places the onus upon the accused to rebut a presumption, it may be that mere explanation of the accused may not be sufficient. But it cannot, if accepted as true, rebut the presumption.
As the learned Public Prosecutor quite effectively illustrated, supposing there is a collision between a motor car and a rickshaw driver in a bye-land and their drivers are the only two persons to speak to the incident, there being no other witnesses. If the police, accepting the rickshaw driver's statement, prosecutes the motor driver for negligence, the evidence of the rickshaw driver on oath will be pitted against the explanation of the accused under S. 342 Cr. P. C. and the court is entitled to judge which of the versions is true. It is true that in this example there is no presumption against the accused. But the illustration emphasis one aspect namely, where the accused and the complainant are the only persons and there can be no other evidence, the explanation of the accused is an important as the evidence of the complainant on oath, and must be treated with equal consideration. In our view, there is really no conflict in the observations of Their Lordships of the Supreme Court, because all that these cases emphasis is that the rebuttal by the accused by reason of Section 4(1) or sub-section (3) of Section 5 of the Act must be positive, and must leave no doubt in the mind of the court that it is true, that is, that a prudent man under the circumstances of the particular case would hold that what has been stated by the accused must exist as a fact.
The first case of : 1960CriLJ131 was dealing with the presumption under S. 5(3) of the Act viz., where the fact that the accused person or any other person on his behalf is in possession, for which the accused person cannot satisfactorily account of pecuniary resources or property disproportionate to his own sources of income may be provided, and on such proof the court shall presume, unless the contrary is proved, that the accused person is guilty of criminal misconduct in the discharge of his official duty. In the later case, their Lordships considered the presumption under S. 4(1) of the Act where only one of the ingredients is presumed against the accused. Be it noted that so far as S. 5(2) of the Act is concerned, the presumption operates to give a finding of guilt against the accused. But even so, it was held that the essential ingredients of each one of specified offences under Section 5(1)(d) of the Act have to be established by the prosecution before the accused can be held to be guilty, and in doing so his explanation under S. 342 Cr. P. C. will have the same effects as in any ordinary case where an accused is charged with an offence. The presumption under S. 5(3) of the Act that the accused is in possession of pecuniary resources or property disproportionate to his own sources of income and that he is unable to satisfactorily account. As the burden of satisfactorily accounting is placed upon the accused, he is presumed to be guilty if he does not rebut it and no conviction can be said to be invalid merely on this score. It cannot be said that the presumption under S. 4(1) of the Act is stronger than that under S. 5(3) of the Act. Each section is confined to the specific offences for which it has been enacted.
Further their Lordships of the Supreme Court in the later case of : (1963)IILLJ660SC could not be presumed to lay down a principle different from what was laid down in the earlier case in AIR 1963 S. C. 1204.
(29) To sum up : (1) It cannot be laid down as an absolute rule in rebutting the presumption placing the onus upon the accused either under sub-section (1) of S. 4 or sub-section (3) of S. 5 of the Act, that he must adduce evidence aliunde; and that his explanation taken with other circumstances, which might appear in the prosecution evidence will not afford a rebuttal of that presumption. (2) While the explanation of the accused may be taken into consideration and treated as evidence in the case in order to rebut such a presumption, it is not sufficient that the version given by him is merely reasonable or probable. (3) In order to rebut the presumption the statement of the accused taken with other circumstances must be accepted as true, or should amount to 'proof' within the meaning of S. 3 of the Evidence Act.
(30) Having regard to what we have observed the Special Judge is in error in applying the presumption under S. 4(1) of the Act for a conviction under S. 5(2), because these presumptions apply to a different specific offenses, and cannot be used for an offence to which it is not related. Since the accused had been charged under S. 5(1)(d) of the Act, the presumption under S. 5(3) of the Act. alone is applicable, if facts and circumstances warrant its application.
(31) We will therefore, consider whether the evidence on record will sustain a conviction under section 5(2) of the Act. The prosecution has clearly established that P. W. 1 gave a hundred rupee note to the accused, which the accused took and secreted in the folds of his dhoti at the waist. This is not denied by the accused. But P. W. 1 would have it that the accused demanded it as illegal gratification and it was given to him pursuant thereto. The Special Judge has, in our view, rightly treated P. W. 1 as an accomplice and required corroboration of his evidence. The circumstances which he though corroborated P. W. 1's evidence in respect thereof are that P. W. 1 had approached P. W. 7 and gave a complaint against the accused. True that the accused was in position of authority, which might induce P. W. 1 to think that he could favour him or disfavour him or to buy his goodwill for future, and it may be that he and the accused met by prior appointment made known to P. W. 7, at which P. W. 2 was present. In support of this P. W. 2's evidence was also adduced. But the Special Judge rejected that evidence. The accused also stated that he (P. W. 2) was not present. What the prosecution has to prove to bring home the offence under S. 5(1)(d) of the Act is that the accused by corrupt or illegal means or by otherwise abusing his position as a public servant obtained for himself any valuable thing or pecuniary advantage. That the accused obtained a valuable thing, as we have stated, is admitted. But whether he obtained it by corrupt or illegal means or otherwise by abusing his position as a public servant, is what has got to be considered in this case.
The learned Advocate for the accused submits that the accused was not in position of authority, and in fact he had nothing to do with this contract from 6-5-1961 inasmuch as he was transferred to Guntakal. The accused in fact ceased even to supervise from 29-4-1961. Consequently, it cannot be said that he was otherwise abusing his position as a public servant. The learned Public Prosecutor, on the other hand, says that it is not necessary that a man must be effectively in charge of the work and the very fact that he was a public servant with the possibility that he is likely at some stage or the other to deal with such matters would be sufficient for the purposes of the section, if he has in such circumstances obtained for himself or for any other person a valuable thing or a pecuniary advantage and that would amount to abuse of his position. In our view, this contention is well founded and there is high authority in support of it. In Dhaneshwar v. Delhi Administration, : (1962)ILLJ142SC overruling a previous decision of three judges in State of Ajmer v. Shivaji Lal, : 1959CriLJ1127 , a Bench of five Judges held as follows:-
'It is not necessary to constitute the offence under cl. (d) of the section that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is equally wrong to say that if a public servant were to take money from a third person, by corrupt or illegal means or otherwise, abusing his official position, in order to corrupt some other public servant, without being any question of his misconducting himself in the discharge of his own duty, he has not committed an offence under S. 5(1)(d) It is also erroneous to hold that the essence of an offence under S. 5(2) read with S. 5(1)(d), is that the public servant should do something in the discharge of his own duty and thereby obtain a valuable thing or pecuniary advantage.'
It is thus clear that the accused on that day was not doing supervision of P. W. 1's contract is not decisive.
(32) The explanation of the accused in support of which he had led some evidence is that his marriage was fixed for 5th June. 1961 and that when he met P. W. 1 on the morning of 16th May, 1961 on the Railway platform while he was on his way to Guntakal, He told him that he wanted to come and give him an invitation card, the next day because that day Tuesday was not at all auspicious. He accordingly went the next day, gave him an invitation card when P. W. 1 presented him with a hundred rupee note as a marriage present and on the accused protesting he asked him to buy some articles if he did not accept it as a marriage present.
(33) The fact that the marriage was fixed for 5th June, 1961 is sought to be proved by the production of a marriage invitation card. Ex. D. 3. It is on behalf of his uncle and aunt of the accused viz., Smt. and Sri. K. V. Ramalingam, and it shows that the marriage was to be performed on Monday, the 5th June, 1961 between 9 and 10-30 A. M. in No. 6 Pilliar Kovil Street, Vadapalani, Madras 26 near police station. This invitation card was printed at Maheswara Press, Guntakal. The accused, it may be noted applied for leave for 28 days from 3-6-1961 by an application (Ex. D. 7) dated 5-5-1961. This is spoken to by the Railway Engineer (D. W. 7). It appears that only 10 days' leave was granted and the accused approached D. W. 7 along with D. W. 4 on 16-5-1961. According to D. W. 4 the accused and he went to the bungalow of D. W. 7 in the evening at about 6 P. M. and waited for the return of D. W. 7, who was having some treatment in the Hospital. D. W. 7 returned at 6-30 P. M. and D. W. 4 talked to him. D. W. 7 agreed to extend the leave to 15 days. They then left the house at about 7 P. M. This is borne out by the evidence of D. W. 7 who says hat he had passed the orders recommending the leave by cutting it down to a period of 15 days. He also says that he met the accused on 16-5-1961 in the evening. When he was asked about the concrete mixture he said in reply to it that he gave instructions that the mixing should be limited to 5 c. ft. at a time and he never allowed 10 c. ft. The accused more or less said that he asked P. W. 1 to mix about 5 c. ft. of concrete.
(34) It is further the case of the accused that he did not meet P. W. 1 that evening and in support of that he has relied upon the evidence of D. Ws. 4, 7 and 2. D. W. 2 stated that, after the accused got leave, he came to him to his house at Guntakal at 7-30 P. M. and they were talking till 8 P. M. and that he left his room at 8 P. M.
(35) This evidence, if true, would contradict the statement of P. W. 1 that he met the accused at 7-30 P. M. Of course, the statement of P. W. 1 that he met the accused at 7-30 P. M. and that he demanded a bribe then is certainly not corroborated, but of course where P. W. 1 and the accused are the only two persons, one cannot expect corroboration nor is it necessary that corroboration in every particular is essential. However, if the accused can establish that he was in Guntakal then, that part of the evidence of P. W. 1 would be believed, be the distance from Guntakal to Gooty is about 17 to 18 miles, and as such it would take not less than half-an-hour, certainly more, if they are intermediate halting stations.
(36) The learned Advocate for the accused has placed before us the Southern Railway Guide for the relevant period in the year 1961. From this it can be gleaned that the distance between Guntakal and Gooty is about 29 Kilometers, and there are two trains, viz., Bombay-Madras Mail which leaves Guntakal at 6-35 P. M. and arrives at Gooty at 7-13 P. M. and Raichur-Madras passenger which leaves at Guntakal at 9-10 p. m. and arrives at 10-05 P. M. The statement of PW 1 that the accused met him at the platform at 7-30 p. m. is not corroborated by the timings at 7-30 p. m. is not corroborated by the timings of the train, unless the first train is late, about which there is no evidence. Further, there is nothing to show why P. W. 1 went to the station at that time. If the accused had not come by the Mail train, certainly he could have come only by the next train at 10 O'clock. That is what the accused says, and he has produced evidence in support of it. The probability of the mail train being late is not ruled out.
(37) Be that as it may. The purpose for which the accused said he went to the house of P.W. 1 is to invite him for marriage. There is, in our opinion, no substance in the argument that because the accused said that P. W. 1 was angry with him, the probability of the accused not going to his house to be doubted, or that he would not have invited him to the wedding. We are clear in our minds that nothing had happened between the accused and P. W. 1 which made P. W. 1's conduct such as that would show that he was angry with the accused. Only such external manifestation of dislike would have prevented the accused from inviting him to the wedding.
(38) Nextly, the fact that the accused and Viswanathan were living in the Railway Quarters without their families shows that they would be going together to have coffee in the morning. If is admitted by P. W. 1 that there is a coffee hotel, and that both the accused and Viswanathan together passed by the coffee hotel that morning. Unless the presumption under S. 5(3) is applicable and the facts of this case do not warrant any such presumption we must insist upon proof of the ingredients of the offence under section 5(1)(d) of the Act being established in the same way as for any other offence. Whether the accused has proved beyond doubt that he went there to give an invitation card may not be absolutely necessary for determining whether he is guilty under S. 5(2). The mere probability that he may have gone there would be sufficient. The explanation in the defence evidence that the marriage was fixed for the 5th June, that the accused applied for leave for the period which included the date of marriage, that it was sanctioned, and that he had printed invitation cards would all tend to probabilise his version. There is also the evidence of another person (DW 5) that he received invitation card from the accused that day i.e., 17th. In the circumstances, the possibility of the currency note being given as alleged by the accused cannot be ruled out. If such a gift is given and taken, it cannot be said that it has been taken by any corrupt motive, not does the presumption under sub-section (3) apply.
(39) The Special Judge has however stated that even assuming that the accused has accepted the hundred-rupee currency note as gift, it amounts to a bribe or illegal gratification within the meaning of Section 5(1)(d) of the Act, because under Rule 2 (3) of the Railway Servants Conduct Rules, no wedding present should be accepted or permitted by any railway servant to be accepted by any member of his family except from a personal friend, and the gift should be of a reasonable value, not exceeding Rs. 200/- The use of the word 'personal friend', according to the learned Judge is a matter which determines the legality or otherwise of the present taken, and since the contractor cannot be said to be a personal friend of the accused, he assumes that the gift is one obtained for corrupt or illegal purposes. This view of the learned Judge is clearly unsustainable as indeed the learned Public Prosecutor was also not able to support the reasoning. We have, therefore, no hesitation in holding that the offence under 5(1)(d) is not established, and the accused would be entitled to an acquittal on that count.
(40) We have next to consider whether the accused must be acquitted of all the charges. The learned Public Prosecutor submits that since the Special Judge had failed to record a finding of 'not guilty' under Section 161 I. P. C., the accused cannot be deemed to have been acquitted. But Mr. Ramarao counters this by saying that where there is no conviction or acquittal on any particular charge, the omission to do so must be deemed to be an implied acquittal. In support of this, he cited a judgment of Chandra Reddy, J. (as he then was) in Krishnamurthy v. State, AIR 1957 Andh Pra 874. Therein it was held that Section 238(1) Cr. P. C. casts an obligation on the Magistrate to record an order of acquittal when there is no finding of guilt, and that it being a mandatory provision, the non-compliance with it must be deemed to have the result, as that specified in the section. The principle that emerges, it was pointed out, is that when there is no specific finding that the accused is guilty under any of the charges framed against him, it amounts to an acquittal of the offence involved in that charge and that, therefore, an appellate Court cannot convict him of the same offence unless there is an appeal against that acquittal.
(41) Support was derived by the learned Judge for this principle from the judgment of their Lordships of the Privy Council in Kishan Singh v. Emperor, AIR 1928 PC 254, where a person charged with an offence under Section 302 I. P. C. but was convicted by the trial Court under Section 304 I. P. C. and the Judge had failed to record an acquittal under Section 302 I. P. C. Their Lordships held that that would amount to an implied acquittal under Section 302, I. P. C. When, therefore, the only offence with which the accused has been charged is murder, and the act of the accused which has been established against him was held to amount to an offence under Section 304 I. P. C. an offence of murder could not be made out for the same act. In other words, the act of killing a person cannot both be murder and culpable homicide not amounting to murder. These two offences with respect to a singly act are mutually exclusive which must be done or the other, and in this particular case since it has been held to be culpable homicide not amounting to murder, their Lordships had no hesitation in holding that there was an implied acquittal under Section 302, I. P. C.
The facts of that case show that the Sessions Judge had convicted the accused under part I of Section 304 I. P. C. though he was charged under Section 302 I. P. C. In revision by the local Government, the High Court having considered the evidence came to the conclusion that there was miscarriage of justice in the trial Court, and accepting the application directed that the conviction of the accused should be altered to one under Section 302 I. P. C. and sentenced him to death. The Privy Council held that the conviction of the accused under Section 302 by the High Court was tantamount to altering a finding of acquittal into one of conviction, and was therefore without jurisdiction, being prohibited by Section 439 Cr. P. C. For the purposes of that case, it appears to have been assumed that there was an implied acquittal, and it was sought to be contended that only when there is a complete acquittal, and not an implied acquittal, that there is a prohibition under S. 539(4) Cr. P. C. That argument was repelled by this Court in Krishnamurthy's case AIR 1957 Andh Pra 874. In that case, charges under Sections 420, 120B read with 420 and 420 read with 511 I. P. C. were framed against the accused. The trial Court convicted the accused only under S. 120B read with S. 420 and did not record a finding either under Section 420 or Section 420 read with S. 511 I. P. C. The learned Sessions Judge on appeal acquitted the accused under Section 120B read with S. 420 and S. 420 read with S. 511 I. P. C. In revision, it was held by the High Court that the Magistrate is deemed to have acquitted the accused under Section 420 and S. 420 read with S. 511 I. P. C. as that is what is implied in convicting the accused only of the offence viz., under Section 120B read with S. 420 I. P. C.
(42) The learned Public Prosecutor, Mr. Chinnappa Reddy, contends that under Section 258(1) Cr. P. C. the Magistrate or Sessions Judge is bound to record finding of 'not guilty', or 'guilty' and if he does not record either of these findings, it cannot be said that he is deemed to have recorded a finding of 'not guilty'. The finding of one must exclude the other. But where facts do not exist from which such an implied acquittal can be presumed, the court would not be justified in treating the omission to record a finding on a charge as being tantamount to an acquittal. This contention appears to us to have some force. Suppose in a case where an accused has been charged with several offences, the court has found him guilty of an offence and passed a sentence specifically saying that it is not necessary to give a finding on other offences, though this may amount to non-compliance with the mandatory provisions, nontheless, it cannot be said that the omission to give a finding is tantamount to recording a finding of 'not guilty'. In this case, the Special Judge did consider the offence under Section 161 I. P. C., but since he was convicting the accused of a more serious offence under Section 5(2) of the Act, he may not have recorded a finding under S. 161 I. P. C. At any rate, the observation of the Special Judge in paragraph 21 of his judgment, which we have extracted above, would show that he was considering the offence under Section 161 I. P. C., though he did not record a finding and was content with convicting the accused only under S. 5(2) of the Act. The said observation negatives the presumption of any implied acquittal of that offence.
In view of the fact that there is no positive finding by the trial Court, the safer course would be to direct a re-trial on the first charge under Section 161 I. P. C. This we find necessary though we have, under Section 5(2) held that the explanation of the accused that he had gone there for extending marriage invitation was probable. For the purposes of S. 161 I. P. C. read with S. 4 of the Act, this finding will not be sufficient, as it has got to be found that the statement of the accused is true, or is such as to amount to proof of his case.
(43) The appeal is accordingly allowed subject to what has been stated above, and the conviction and sentence of the accused under Section 5(1)(d) read with Section 5(2) of the Act are set aside, and the accused is acquitted of the said offence. The fine, if paid shall be refunded.
(44) Appeal allowed.