Ammalal Chouhan vs State of Madhya Pradesh (now Chhattisgarh)

R.S. Sharma, J.—This appeal is directed against judgment dated 30-9-1996 passed by 2nd Additional Sessions Judge, Bilaspur in Special Case No. 3/1988. By the impugned judgment, accused/appellant Ammalal has been convicted u/s 161 of the Indian Penal Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 (henceforth ''the Act, 1947'') and sentenced to undergo rigorous imprisonment for two years and to undergo rigorous imprisonment for two years and to pay fine of Rs. 2,000/-, in default of payment of fine, to further undergo imprisonment for three months, respectively. Both the jail sentences are directed to run concurrently. Case of the prosecution, in brief, is as under:

On 11-12-1985, the appellant was working as a Patwari of Halka No. 41, Villages Vijaypur and Dokarikhar (within the jurisdiction of Patwari Halka No. 41), R.I. Circle and Tahsil Katghora. On that date, complainant Bisahuram Yadav (PW-2) made a written complaint (Ex. P-3) to Deputy Superintendent of Police, Lokayukta, Bilaspur that he had purchased an agricultural land in the names of his sons and Samaru (PW-15), whose papers including stamp papers were given by him to the concerned Halka Patwari, i.e., the appellant for mutation. At that time, the appellant had obtained sums of Rs. 2,000/- each, total Rs. 4,000/- from the complainant and Samaru (PW-15) through the complainant, but he was demanding a sum of Rs. 900/- additionally for returning the stamp papers and had said to bring that sum by 11-12-1985. Since the complainant did not want to give the money to the appellant, he made the complaint (Ex. P-3). The complaint (Ex. P-3) was forwarded by S.N. Dubey, Deputy Superintendent of Police, Lokayukta, Bilaspur to Inspector R.C. Panda (PW-17) for necessary action. Deputy Collector, Bilaspur B.R. Dhruw (PW-12) and Deputy Superintendent of Police, Lokayukta, Bilaspur S.N. Dubey (not examined) were made Panch Witnesses.

The complaint (Ex. P-3) was given to the Panch Witnesses for their perusal. They enquired about the complaint (Ex. P-3) from complainant Bisahuram Yadav (PW-2). A pre-trap demonstration was arranged, wherein a solution of sodium carbonate was prepared in a glass. On dipping of a piece of plain paper in the solution, colour of the solution did not change. Thereafter, another piece of paper containing phenolphthalein powder was dipped in the solution, colour of the solution turned pink. After giving demonstration, complainant Bisahuram Yadav (PW-2) was asked to submit currency notes. Complainant Bisahuram Yadav (PW-2) submitted currency notes of Rs. 900/- in the denomination of Rs. 100/- each. Pre-Trap Panchnama (Ex. P-13) was prepared and numbers of the currency notes were recorded in Pre-Trap Panchnama (Ex. P-13) and thereafter phenolphthalein powder was smeared on the currency notes and those currency notes were kept in the left side upper pocket of the Baniyan (vest) worn by complainant Bisahuram Yadav (PW-2). He was informed and guided as to how the trap would be arranged and the role which he was required to play in the trap proceedings. Complainant Bisahuram Yadav (PW-2) was also instructed that he will give the money to the appellant only on his making demand.

After preparing Pre-Trap Panchnama (Ex. P-13) and arranging pre-trap proceedings, the trap team proceeded to Village Vijaypur, where the appellant was not found. They came to know that the appellant was in Village Dokarikhar. They went to Village Dokarikhar, Complainant Bisahuram Yadav (PW-2) entered the house of Hori Singh Kanwar where the appellant was doing his work and members of the trap team surrounded the house. Complainant Bisahuram Yadav (PW-2) gave the tainted currency notes to the appellant. After giving money, complainant Bisahuram Yadav (PW-2), as was already guided to him, transmitted signal to the trap team. After receiving the signal, members of the trap team rushed the spot immediately and caught hands of the appellant. The appellant forcibly extricated his hands and threw the currency notes on the floor.

A solution of sodium carbonate was prepared in which fingers of both the hands of the appellant were dipped, colour of the solution turned pink. The solution was kept in a separate bottle and seated. The currency notes were picked up from the floor of the house. Numbers of the currency notes were compared with the numbers mentioned in Pre-Trap Panchnama (Ex. P-13), which were found to be similar. Another solution of sodium carbonate was prepared and the recovered currency notes were dipped therein, colour of the solution turned pink. The solution was kept in another bottle and sealed. Another solution of sodium carbonate was prepared in which left bottom pocket of the coat of the appellant was dipped, colour of the solution turned pink. The solution was kept in another bottle and sealed. The coat of the appellant and the recovered currency notes were seized. Khasra Panchshala, Sale-Deed and Patta were also seized vide Ex. P-17. Thereafter, Trap-Panchnama was prepared vide Ex. P-16. Dehati Nalishi (Ex. P-22) was recorded. Thereafter, Crime No. 209/85 was registered vide regular First Information Report (Ex. P-23) on 24-12-1985. The seized solutions and other articles were sent for chemical examination to Forensic Science Laboratory, Sagar vide Ex. P-19. Report of FSL (Ex. P-24) was received. In Ex. P-24, test of phenolphthalein was found to be positive.

After completion of the investigation, sanction for prosecution against the appellant was obtained vide Ex. P-20A and charge-sheet was filed against him in the Court of Special Judge/Sessions Judge, Bilaspur and trial was conducted by learned 2nd Additional Sessions Judge, Bilaspur.

The trial Court framed charges against the appellant u/s 161 of the Indian Penal Code and section 5(1)(d) read with section 5(2) of the Act, 1947. After appreciation of the evidence available on record, the trial Court convicted and sentenced the appellant as mentioned above.

To establish the charges against the accused/appellant, the prosecution examined Naib-Tahsildar D.N. Patre (PW-1), complainant Bisahuram Yadav (PW-2), Chatur Singh (PW-3), Surbhawan Singh (PW-4), Madhav Singh (PW-5), N.K. Pandey (PW-6), Deputy Superintendent of Police M.K. Hiradhar (PW-7), Patwari Jairam Kewant (PW-8), Revenue Inspector R.B. Chandra (PW-9), Kamal Singh (PW-10), Manikdas (PW-11), Deputy Collector B.R. Dhruw (PW-12), Baratu (PW-13), Premchand Tiwari (PW-14), Samaru (PW-15), Rajendra Sawai (PW-16) and Inspector R.C. Panda (PW-17). In defence, the appellant examined Kaushaldas (DW-1).

Shri Abhijit Sarkar, learned counsel for the appellant argued that the prosecution has failed to prove demand of illegal gratification by reliable and cogent evidence. The Panch Witnesses did not hear the appellant demanding money of his own from the complainant. The complainant purchased the land from a person belonging to Scheduled Tribe in violation of Section 165(6) of the Land Revenue Code, 1959 (henceforth ''the Code, 1959''). The appellant had retained the sale-deed given by the complainant with him for sending a report u/s 170-B of the Code, 1959. Mutation of the land was already done. Since the appellant was about to initiate a proceeding against the complainant u/s 170-B of the Code, 1959, the complainant falsely implicated the appellant in the instant case. The evidence of the prosecution witnesses are not reliable. Recovery of amount is also doubtful. The evidence of complainant Bisahuram Yadav (PW-2) is unreliable and conviction cannot be based on his testimony. Demand of money was not proved by the prosecution. Therefore, the impugned judgment is not sustainable and the appellant deserves to be acquitted.

On the other hand, Shri M.P.S. Bhatia, learned Deputy Government Advocate for the State/respondent, supporting the impugned judgment, refuted the above arguments and submitted that the prosecution has led clinching and reliable evidence. The bribe money was recovered from the appellant. When fingers of the appellant were dipped in the solution of sodium carbonate, colour of the solution turned pink. Therefore, there is a presumption against the appellant and the judgment of conviction and sentence against him does not warrant any interference by this Court.

I have heard learned counsel for the parties at length and have also perused the record of Special Case No. 3/1988 with utmost circumspection.

The learned trial Judge, after appreciation of the evidence available on record, held that the appellant had demanded illegal gratification of Rs. 900/- from the complainant.

Bisahuram Yadav (PW-2) deposed that he had purchased an agricultural land in the name of his son Puran and he had given the sale-deed to the appellant for mutation. When he asked the appellant to return the sale-deed, the appellant demanded a sum of Rs. 900/-. He frequently met the appellant in this regard, but the appellant said him that he will return the sale-deed only on being given the sum of Rs. 900/-. He made the complaint (Ex. P-3) before the Deputy Superintendent of Police. He had submitted currency notes of Rs. 900/- before the trap team. Phenolphthalein. powder was smeared on those currency notes and necessary proceedings were recorded.

Deputy Collector B.R. Dhruw (PW-12) deposed that on 11-12-1985, he was called for by Lokayukta Office, Bilaspur. He went there and met Inspector R.C. Panda (PW-17), who introduced him with complainant Bisahuram Yadav (PW-2). He was given the complaint (Ex. P-3) for his perusal. He enquired about the complaint from complainant Bisahuram Yadav (PW-2). Complainant Bisahuram Yadav (PW-2) stated before him the contents of the complaint (Ex. P-3) to be true. Then he put his signature on the complaint. He further deposed that a pre-trap demonstration was arranged. Complainant Bisahuram Yadav (PW-2) submitted currency notes of Rs. 900/- in the denomination of Rs. 100/- each. Pre-Trap Panchnama (Ex. P-13) was prepared. Numbers of the currency notes were recorded therein. Phenolphthalein powder was smeared on the currency notes and those currency notes were wrapped in a plain paper and kept in the pocket of complainant Bisahuram Yadav (PW-2).

Inspector R.C. Panda (PW-17) deposed that complainant Bisahuram Yadav (PW-2) made the complaint (Ex. P-3) against the appellant. He had arranged a pre-trap demonstration. Complainant Bisahuram Yadav (PW-2) had submitted currency notes of Rs. 900/-, numbers thereof were recorded in Pre-Trap Panchnama (Ex. P-13). Phenolphthalein powder was smeared on the currency notes and they were wrapped in a white plain paper and kept in left upper pocket of the Baniyan (vest) worn by complainant Bisahuram Yadav (PW-2). He further deposed that complainant Bisahuram Yadav (PW-2) was instructed and guided as to how the trap would be arranged and the role which he was required to play in the trap proceedings.

R.C. Panda (PW-17), B.R. Dhruw (PW-12), Bisahuram Yadav (PW-2), M.K. Hiradhar (PW-7) and N.K. Pandey (PW-6) deposed that they proceeded for Village Vijaypur and reached there at about 7 P.M. They stayed near the house of the appellant and complainant Bisahuram Yadav (PW-2) was sent to the house of the appellant. Complainant Bisahuram Yadav (PW-2) came back from the house of the appellant and told that the appellant was not present in his house and had gone to Village Dokarikhar. Thereafter, they proceeded to Village Dokarikhar. They reached there after half an hour. At that time, the appellant was doing his work in the house of Hori Singh Kanwar. They hid nearby the house of Hori Singh Kanwar and complainant Bisahuram Yadav (PW-2) entered the house where the appellant was doing his work. After sometime, both the complainant and the appellant came out of the house and complainant Bisahuram Yadav (PW-2) gave money to the appellant, which the appellant kept in left bottom pocket of the coat worn by him.

R.C. Panda (PW-17), B.R. Dhruw (PW-12), M.K. Hiradhar (PW-7) and Bisahuram Yadav (PW-2) deposed that Bisahuram Yadav (PW-2), after giving money to the appellant, transmitted a signal. After receiving the signal, the trap team rushed the spot immediately and N.K. Pandey (PW-6) caught both the hands of the appellant. The appellant forcibly extricated his hands from N.K. Pandey (PW-6) and threw the currency notes on the floor.

R.C. Panda (PW-17), B.R. Dhruw (PW-12), M.K. Hiradhar (PW-7) and N.K. Pandey (PW-6) deposed that a solution of sodium carbonate was prepared in which fingers of both the hands of the appellant were dipped, colour of the solution turned pink. The solution was kept in a separate bottle and sealed. The currency notes were picked up from the floor of the house. Numbers of the currency notes were compared with the numbers mentioned in Pre-Trap Panchnama (Ex. P-13), which were found to be similar. Another solution of sodium carbonate was prepared and the recovered currency notes were dipped therein, colour of the solution turned pink. The solution was kept in another bottle and sealed. Another solution of sodium carbonate was prepared in which left bottom pocket of the coat of the appellant was dipped, colour of the solution turned pink. The solution was kept in another bottle and sealed. The coat of the appellant and the recovered currency notes were seized.

It was argued by learned counsel for the appellant that the complainant purchased the land from a person belonging to Scheduled Tribe in violation of section 165(6) of the Code, 1959. The appellant had retained the sale-deed given by the complainant with him for sending a report u/s 170-B of the Code, 1959.

Kaushaldas (DW-1) deposed that at about 8 P.M. the appellant was doing his work in the house of Hon Singh Kanwar. 20-25 persons were sitting there and light of gas-lamp was spread there. Complainant Bisahuram Rawat came to the house of Hori Singh Kanwar and took the appellant out of the house. Bisahuram Rawat put his hand in the left pocket of the coat worn by the appellant. The appellant snatched out the hand of complainant from his pocket. Something fell down from the pocket of the appellant. At the same time, police party rushed there and got the currency notes, which were lying on the floor, picked up from the appellant.

Bisahuram Yadav (PW-2) deposed that it is true that the mutation was already effected. On examination u/s 313, Cr.P.C., the appellant stated that complainant Bisahuram Yadav (PW-2) had purchased a land from a person belonging to Scheduled Tribe showing himself to be a member belonging to Scheduled Tribe. Mutation was effected 10-11 months back. He had retained the sale-deed given by the complainant for sending a report to Tahsildar.

According to the appellant, it appears that the mutation had already effected. If the complainant had fraudulently purchased the land from a Scheduled Tribe then why did the appellant effect the mutation and why did he not submit a report in this regard to Tahsildar or Sub-Divisional Officer for necessary action against the complainant earlier. From perusal of evidence of the prosecution witnesses and that of Kaushaldas (DW-1), it appears that complainant Bisahuram Yadav (PW-2) had gone to the house of Hori Singh Kanwar where the appellant was doing his work and took the appellant out of the house. Thereafter, the appellant received the money from the complainant. In the light of evidence of the prosecution witnesses, the defence taken by the appellant is not reliable.

In Dhaneshwar Narain Saxena Vs. The Delhi Administration, , the Hon''ble Supreme Court held thus:

3............ "The offence under this provision consists of criminal misconduct in the discharge of his duty. In order, therefore, that this offence is committed there should be misconduct by the public servant in the discharge of his duty. In other words the public servant must do something in connection with his own duty and thereby obtain money for himself or for any other person by corrupt or illegal means or by otherwise abusing his position. If a public servant takes money from a third person in order to corrupt some other public servant and there is no question of his misconducting himself in the discharge of his own duty, that action may be an offence under S. 161 of the Indian Penal Code but would not be an offence under S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act. 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 any valuable thing or pecuniary advantage for himself or for any other person by corrupt or illegal means or by otherwise abusing his position. The words "by otherwise abusing his position" read along with the words "in the discharge of his duty" appearing in S. 5(1)(d) make it quite clear that an offence under that section requires that the public servant should misconduct himself in the discharge of his own duty........

In Dalpat Singh and Another Vs. State of Rajasthan, , the Hon''ble Supreme Court observed that the words "in the discharge of his duty" occurring in S. 5(1) of the Prevention of Corruption Act do not constitute an essential ingredient of the offence under S. 5(1)(d) of the Act. The ingredients of the offence under S. 5(1)(d) are: (1) that the accused should be a public servant, (2) that he should use some corrupt or illegal means or otherwise abuse his position as a public servant, (3) that he should have obtained a valuable thing or pecuniary advantage and (4) for himself or any other person. Therefore to bring home an offence under S. 5(1)(d), it is not necessary to prove that the acts complained of were done by the accused in the discharge of their official duties. Therefore, if it is proved that the accused had by illegal means or by otherwise abusing their position as public servants obtained for themselves money or other valuable things, then, they can be said to have committed the offence of criminal misconduct in the discharge of their official duties.

In the light of above principles, it is erroneous to hold that the essence of an offence u/s 5(1)(d) read with section 5(2) of the Act, 1947 is that the public servant must do something in connection with his own duty and thereby obtain any valuable thing or pecuniary advantage. It is also erroneous to hold that the essence of an offence u/s 5(1)(d) read with section 5(2) of the Act, 1947 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 necessary that an accused person, while misconducting himself, should have done in the discharge of duty and thereby obtained any pecuniary advantage. In the instant case, the appellant was posted as a Patwari in Patwari Halka No. 41 and complainant Bisahuram Yadav (PW-2) had given him the sale-deed for mutation. The mutation was already effected, but the appellant had not returned the sale-deed to the complainant and had retained the same with him. The appellant had not sent any report in this regard for about 10 months. Complainant Bisahuram Yadav (PW-2) had frequently met the appellant for getting the sale-deed back. Even thereafter, the appellant did not return the sale-deed to the complainant. Therefore, the statement of the complainant that the appellant demanded the sum of Rs. 900/- from him as illegal gratification is reliable and acceptable.

In C.M. Sharma Vs. State of A.P. Th. I.P., the Hon''ble Supreme Court observed thus:

We do not have the slightest hesitation in accepting the broad submission of Mr. Rai that demand of illegal gratification is sine qua non to constitute the offence under the Act. Further mere recovery of currency notes itself does rot constitute the offence under the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. In the facts of the present case, we are of the opinion that both the ingredients to bring the act within the mischief of sections 7 and 13(1)(d)(ii) of the Act are satisfied. From the evidence led on behalf of the prosecution it is evident that the appellant demanded the money from the contractor as he had passed his bills. There is further evidence that when the contractor went along with the shadow-witness on the date told by the appellant for payment of the bribe, appellant asked the shadow-witness to leave the chamber and thereafter the demand for payment of illegal gratification was made and paid. The positive sodium carbonate test vis-�-vis the fingers and right trouser''s pocket of the appellant go to show that he voluntarily accepted the bribe. Thus there is evidence of demand of illegal gratification and the voluntary acceptance thereof.

In the instant case, it is evident that complainant Bisahuram Yadav (PW-2) had gone to the house of Hori Singh Kanwar where the appellant was doing his work. Complainant Bisahuram Yadav (PW-2) took the appellant out of the house. Thereafter, the appellant received the tainted money from the complainant. The complainant transmitted signal to the waiting trap-team and the trap-team, on receiving the signal, rushed the spot immediately and caught hands of the appellant. After getting fingers of the appellant washed in the solution of sodium carbonate, the test of phenolphthalein was found to be positive. Currency notes were also recovered at the instance of the appellant and their numbers were compared with the numbers mentioned in the Pre-Trap Panchnama (Ex. P-13), which were found to be similar.

In M. Narsinga Rao Vs. State of Andhra Pradesh, , the Hon''ble Supreme Court observed thus:

In Raghubir Singh Vs. State of Haryana, V.R. Krishna Iyer, J. speaking for a three-Judge Bench, observed that the very fact of an Assistant Station Master being in possession of the marked currency notes against an allegation that he demanded and received that amount is "res ipsa loquitur". In this context the decision of a two-Judge Bench of this Court (R.S. Sarkaria and O. Chinnappa Reddy, JJ.) in Hazari Lal Vs. State (Delhi Administration), can usefully be referred to. A police constable was convicted u/s 5(2) of the Prevention of Corruption Act, 1947, on the allegation that he demanded and received Rs. 60 from one Sriram who was examined as PW 3 in that case. In the trial court PW 3 resiled from his previous statement and was declared hostile by the prosecution. The official witnesses including PW 8 have spoken to the prosecution version. The Court found that phenolphthalein-smeared currency notes were recovered from the pocket of the police constable. A contention was raised in the said case that in the absence of direct evidence to show that the police constable demanded or accepted bribery no presumption u/s 4 of the Act of 1947 could be drawn merely on the strength of recovery of the marked currency notes from the said police constable. Dealing with the said contention Chinnappa Reddy, J. (who spoke for the two-Judge Bench observed as follows: (SCC p., 396, para 10)

It is not necessary that the passing of money should be proved by direct evidence. It may also be proved by circumstantial evidence. The events which followed in quick succession in the present case lead to the only inference that the money was obtained by the accused from PW 3. u/s 114 of the Evidence Act the court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to facts of the particular case. One of the illustrations to section 114 of the Evidence Act is that the court may presume that a person who is in possession of the stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession. So too, in the facts and circumstances of the present case the court may presume that the accused who took out the currency notes from his pocket and flung them across the wall had obtained them from PW 3, who a few minutes earlier was shown to have been in possession of the notes. Once we arrive at the finding that the accused had obtained the money from PW 3, the presumption u/s 4(1) of the Prevention of Corruption Act is immediately attracted. The presumption is of course rebuttable but in the present case there is no material to rebut the presumption. The accused was, therefore, rightly convicted by the courts below.

We, therefore, agree with the finding of the trial court as well as the High Court that prosecution has proved that the appellant has received gratification from PW 1. In such a situation the Court is under a legal compulsion to draw the legal presumption that such gratification was accepted as a reward or doing the public duty. Of course, the appellant made a serious endeavour to rebut the said presumption through two modes. One is to make PW 1 and PW 2 speak to the version of the appellant and the other is by examining two witnesses on the defence side. True PW 1 and PW 2 obliged the appellant. The two defence witnesses gave evidence to the effect that the appellant was not present at the station on the date when the alleged demand was made by PW 1. But the trial court and the High Court have held their evidence unreliable and such a finding is supported by sound and formidable reasoning. The concurrent finding made by the two courts does not require any interference by this Court.

In T. Shankar Prasad Vs. State of Andhra Pradesh, the Hon''ble Supreme Court observed thus:

For appreciating rival stands it would be proper to quote section 20(1) of the Act, which in essence and substance is the same as section 4(1) of the previous Act of 1947 and which read as follows:

4.(1) Presumption where public servant accepts gratification other than legal remuneration.-- (1) Where in any trial or an offence punishable u/s 161 or section 165 of the Indian Penal Code, or of an offence referred to in clause (a) or clause (b) of sub-section (1) of section 5 of this Act punishable under sub-section (2) thereof, 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 inadequate.

Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in section 4 of the Indian Evidence Act, 1872 (in short "the Evidence Act"). The presumptions falling under the former category are compendiously known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression "shall be presumed" is employed in section 4(1) of the 1947 Act and section 20 of the Act, it must have the same import of compulsion.

When the sub-section deals with legal presumption, it is to be understood as in terrorem i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc. if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption u/s 4 of the 1947 Act is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. (See M. Narsinga Rao Vs. State of Andhra Pradesh,

In The State rep. by CBI, Hyderabad Vs. G. Prem Raj, , the Hon''ble Supreme Court observed thus:

At this juncture, we must also express as to how the presumption was completely ignored by the High Court, section 20 of the Act provides:

Presumption where public servant accepts gratification other than legal remuneration.-- (1) Where, in any trial of an offence punishable u/s 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 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 section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

(2) [Not relevant.]

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.

It was argued, though feebly, that the presumption could not be drawn as the charge in this case was u/s 13(2) read with section 13(1)(d) of the Act.

It was pointed out by the learned counsel for the respondent-accused that section 13(1)(d) did not attract the presumption u/s 20 of the Act. What is being ignored by the learned counsel for the respondent-accused is that the charge was not only u/s 13(1)(d), but also u/s 7 of the Act. Section 7 of the Act is as under:

Public servant taking gratification other than legal remuneration in respect of an official act.-- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

In Subbu Singh Vs. State by Public Prosecutor, , the Hon''ble Supreme Court held that once it is proved by the prosecution that the money was demanded as bribe and the same was received from PW 2, section 20 PC Act comes into play. Once there is a presumption as contemplated u/s 20, it is for the appellant to establish that the amount was not received as bribe. It is to be noted that the appellant was alone in his room for sometime holding the currency notes before PW 26 and other officer entered into the house. Therefore, as rightly observed by the High Court, the possibility of the appellant counting the money with the help of right hand cannot be ruled out.

In the instant case, currency notes of Rs. 900/- were recovered from the appellant and the numbers thereof were compared with the numbers mentioned in the Pre-Trap Panchnama (Ex. P-13), which were found to be similar. The appellant did not offer any proper and plausible explanation for recovery of money from him. It is proved that tainted money was recovered from the appellant, therefore, in the facts and circumstances of the case, a presumption can be drawn against him that he demanded and accepted illegal gratification. In such a situation, this Court is under a legal compulsion to draw a legal presumption that such gratification was accepted as a reward for doing the public duty.

For the foregoing reasons, I am of the considered opinion that the conviction of the appellant is based upon reliable and credible evidence. I do not find any illegality or irregularity in the impugned judgment. Therefore, the impugned judgment is affirmed and the appeal is dismissed.