2002 ALL MR (Cri) 1106
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)

S.G. MAHAJAN, J.

Madhukar S/O Gulabrao Khadse Vs. The State Of Maharashtra

Criminal Appeal No.85 of 1995

9th October, 2001

Petitioner Counsel: SHRI. A. V. GUPTA, SHRI. P. P. KOTWAL
Respondent Counsel: SHRI. S. J. JICHKAR

(A) Prevention of Corruption Act (1988), Ss.13(1)(d),(2), 20 - Acceptance of bribe for sanctioning leave - Raid arranged - Panchanama in the case - It is not substantive piece of evidence.

Panchanama - Corruption case - Evidentiary value.

No doubt, the recitals in Panchanama are that the accused demanded the money. But the panchanama is not a substantive piece of evidence. The recitals in the panchanama can be used only for corroboration or contradiction. Unless the panch witness deposes the fact, the mere recitals to that effect in the panchanama cannot be read. [Para 9]

(B) Prevention of Corruption Act (1988), Ss.13(1)(d),(2), 20 - Acceptance of bribe for sanctioning leave - Panch witness stating that no money was demanded at time of trap - Accused admitting to have accepted amount but it was towards repayment of loan taken by complainant - Complainant admitting during cross-examination on this point - It can be said that accused has rebutted presumption that arose under s. 20 - Accused is entitled to benefit of doubt and he has to be acquitted. (Para 24)

Cases Cited:
Panalal Damodar Rathi Vs. State of Maharashtra, AIR 1979 SC 1191 [Para 9]
M. Narsinga Rao Vs. State of Andhra Pradesh, 2001 ALL MR (Cri) 565 (S.C.)=2001(1) Crimes 79 [Para 12]


JUDGMENT

JUDGMENT :- Appellant Madhukar s/o Gulabrao Khadse has impugned the judgment and order passed by the learned Special Judge (Under the Prevention, of Corruption Act, 1988), Bhandara, in Special Case No.3 of 1992, whereby he convicted the appellant of the offences under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 and sentenced him to suffer simple imprisonment for one year and to pay a fine of Rs.1,000/- or in default to suffer simple imprisonment for three months more for the offence under Section 7 of the Prevention of Corruption Act, 1988 and again to suffer simple imprisonment for one year and to pay a fine of Rs.1,000/- or in default to suffer simple imprisonment for three months more for the offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988. The substantive sentences of imprisonment were directed to run concurrently.

2. The case of the prosecution is as below :

(A) At the relevant time, complainant Shriram s/o Laxman Kale was serving in Public Works Department (B & C), Bhandara, as Lohar Mistri (Blacksmith). Earlier to the incident in this case, complainant Shriram fell ill and as such, he had submitted an application for the grant of commuted leave for the period from 29-10-1991 to 29-12-1991. After he recovered from illness, he obtained a fitness certificate from Dr. Dhumankhede. After procuring the fitness certificate, he produced the same, gave a joining report and resumed his duty on 30-12-1991. The Sub Divisional Officer, P.W.D., was not empowered to grant leave for a period exceeding one month and the sanctioning authority for that purpose was the Executive Engineer. So, the leave application of the complainant was to be forwarded to the Office of Executive Engineer, Bhandara.

(B) On 24-1-1992, the complainant met the clerk in the Office of Sub Divisional Officer, P.W.D., Bhandara, and requested him to forward the papers to the Office of Executive Engineer, P.W.D., Bhandara. The concerned clerk handed over the leave application and other papers along with the conversing letter to the complainant for being forwarded to the Office of Executive Engineer. The complainant accordingly carried the Dak to the Office of Executive Engineer, P.W.D., Bhandra. He delivered the Dak in the office of Executive Engineer to the concerned clerk Shri. Mothghare. The accused/appellant was serving in the Office of Executive Engineer, P.W.D., Bhandara, as a Senior Clerk. He was working in the Establishment Section and he used to deal with the leave applications. The accused/appellant called the complainant in connection with his leave application. The complainant made enquiry with the accused about the sanction of leave. The accused told that his leave would be sanctioned after 3/4 days. The accused demanded Rs.50/- to the complainant to clear up his leave application, using the words 'pan supari'. The complainant told the accused that he had no amount at that time and he would give it subsequently on 28th or 29th.

(C) The complainant was not willing to pay the amount of Rs.50/- to the accused. So, on 29-1-1992, he approached A.C.B., Bhandara and lodged the complaint. Shri. Uparikar, who was attached as a Police Inspector to A.C.B. Bhandara, reduced into writing the complaint of the complainant as per his narration. Police Inspector Uparikar then summoned two panch witnesses from District Malaria Office, Bhandara, by issuing a requisition letter. In response to that letter, two panch witnesses, namely Prakash Narayan Ukey and Shivshankar Mannade, attended the Office of A.C.B., Bhandara. PI Uparikar, the complainant narrated his complaint orally to the panch witnesses. Then PI Uparikar gave the written complaint of the complainant to the panch witnesses for reading. The panch witnesses ascertained the contents of the written complaint and made the necessary endorsement thereon.

(D) Thereafter the demonstration of the use of phenolphthalein powder was made and the effect of sodium carbonate thereon was shown to the complainant and panch witnesses. The phenolphthalein powder was applied to the currency notes of Rs.50/-, which were brought by complainant Shriram Kale. The said currency notes were kept in the pocket of manila of complainant Shriram Kale by Constable Dhande. The necessary instructions were given to the complainant. Panch No.1 Prakash Ukey was asked to accompany the complainant. The necessary instructions were given to Panch Prakash Ukey also. Panch No.2 Mannade was asked to accompany the raiding party. Complainant Shriram was instructed to give signal to the raiding party after the amount of bribe was given. All the procedure adopted as above, was incorporated in the panchanama and Panchanama No.1 was drawn.

(E) Complainant Shriram and Panch Witness No.1 Prakash Ukey proceeded to the Office of Executive Engineer (B & C), Bhandara, on their bicycles. The members of the raiding party along with Panch Witness No.2 followed them on the motorcycle and bicycles. They all reached the place near Gurjar Petrol Pump around 1.30 p.m. Complainant Shriram and Panch No.1 Prakash Ukey entered the office of the accused. The members of the raiding party kept themselves waiting near about the said office.

(F) Complainant Shriram enquired with the accused whether his leave was sanctioned. The accused asked the complainant to go outside. Accordingly, the complainant and Panch Witness Prakash came out of the office to the Pan Stall. The accused also came there. The accused asked the complainant whether he had brought the pan supari amount. The complainant told him that he had brought that amount. The accused demanded the amount of Rs.50/- to the complainant. The complainant took out the currency notes of Rs.50/- from his pocket. The accused took that amount and put it in the pocket of his shirt. Thereafter the complainant went away and gave preplanned signal.

(G) On receiving the signal as above, the members of the raiding party arrived on the spot. PI Uparikar and Head Constable Rokde went ahead and caught hold of the hands of the accused. The accused asked to save him and made an attempt to get his hands released. However, PI Uparikar warned him to keep quiet. The solution of sodium carbonate was prepared. All the members of the raiding party, including the panch witnesses, dipped the fingers of their hands in the solution. The colour did not change. Then the fresh solution of sodium carbonate was prepared and the accused was asked to dip the fingers of his right hand in the solution. The colour of the said solution then changed to violet. Panch Witness No.1 Prakash Ukey and complainant Shriram told the Police Inspector that the accused had demanded and accepted the amount of bribe from the complainant and had kept the said amount in the pocket of his manila. Panch Witness No.2 Mannade was asked to take out the amount of bribe from the pocket of manila of the accused. The solution of sodium carbonate was sprinkled on the said currency notes. The colour of solution changed to violet. The said currency notes were seized by Police Inspector Uparikar. Then the fresh solution of sodium carbonate was prepared and the solution was sprinkled on the pocket of manila of the accused. The colour of solution changed to voilet. The manila of the accused was also seized.

(H) On enquiry about the leave application and other documents of complainant Shriram, the accused told that those documents were kept in the office on his table. So, the members of raiding party entered the office and Police Inspector Uparikar seized the documents in question. Then the facts of the incident which took place in the office of the accused between him and the complainant were ascertained from Panch Witness No.1. Panchanama No.2 incorporating all the procedure adopted as above, from the point of time after the completion of the procedure in Panchanama No.1, was drawn.

(I) PI Uparikar prepared the report and forwarded the same along with the covering letter to Police Station, Bhandara. On the said report being lodged, the offence was registered. PSI Aziz thereafter conducted the further investigation, during which he forwarded the articles, including the sample bottles of solution, etc., to the Chemical Analyzer for examination. On completion of the investigation, all the case papers were forwarded to the Deputy Commissioner of Police for obtaining the sanction. The Superintending Engineer, P.W.D., Nagpur Circle, Shri. Jangde accorded the sanction. The accused was then chargesheeted.

3. The charge of the offences under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 was framed by the learned Special Judge (Under Prevention of Corruption Act. 1988), Bhandara. It was read over and explained to the accused and he pleaded not guilty.

4. The defence of the accused was that complainant Shriram Kale used to come to the Office of Executive Engineer often. He was getting less salary. He was in the habit of consuming liquor and he used to borrow money from the clerks named Bamrotwar, Choudhari, Silekar, Gadge, Mohature, Bhagat and the accused himself. The further contention of the accused was that about 5/6 months prior to the date of incident, complainant Shriram met him and demanded Rs.100/- as a hand-loan, assuring that he would repay the said amount within eight days. He also told that he was very much in need of money. As per the accused, that time one clerk, named Mohature, was also present. The further contention of the accused was that on considering the domestic problems of the complainant, he gave the hand-loan of Rs.100/- to him in presence of Mohature. Out of the said amount, the complainant repaid the amount of Rs.50/- in two installments, by coming to the office of the accused. He then promised that he would repay the balance of Rs.50/- within eight days and returned home. Thereafter, he met the accused 4/5 times, but he was avoiding to repay the amount and he said that he would repay on the next day.

It was the future contention of the accused that some 10 to 15 days prior to the incident, when he was returning home from Gandhi Chowk, the complainant met him under the influence of liquor. At that time, the accused was also in the need of money. So he asked him to repay the balance of Rs.50/-. The complainant said that he did not run away anywhere. At that time, the accused said to the complainant that he was having money for liquor, but he did not have money to repay the balance. The accused then warned the complainant that if he would fail to repay Rs.50/- within eight days, the accused would inform his superior about his habits. Saying so, the accused came home.

The further submission of the accused was that on 24-1-1992, complainant Shriram and one peon of the Office of Bhandara Sub Division came to his office with the leave application and other documents. They went to Shri. Mothghare. Shri. Mothghare asked the complainant and peon to hand over the enclosures to the accused, who was dealing with the case, to avoid misplacement of the important documents and to bring back the covering letter for being forwarded to the superior. Accordingly, the complainant and the person approached the accused with the Dak. The contention of the accused is that as per the office procedure, he took the said papers in his custody to avoid the misplacement and returned the covering letter to the complainant and peon. Thereafter, they handed over the said covering letter to Inward Clerk Shri. Mothghare and went away. As per the accused, the aforesaid covering letter was under the office action only, during the period from 24-1-1992 to 28-1-1992 and on 28-1-1992 at about 5.30 p.m., Inward Clerk Shri. Mothghare sent the said covering letter to the accused by putting thereon the inward number and date. The assertion of the accused is that the complainant never met him during the abovesaid period.

According to the accused, on 29-1-1992 around 2 p.m. during the lunch hour, he along with his friend Mohature went to the pan stall for taking tea. He and Mohature were sitting on the bench. That time, complainant Shriram came to the stall and asked him to take Rs.50/-, saying that it was the balance of repayment of the amount borrowed by him as a hand-loan. The accused accepted the said amount innocently, believing that it was the balance amount of repayment and kept the same in the pocket of his manila. Immediately thereafter, Police Inspector Uparikar rushed there with the staff members and apprehended him. As per the accused, he told PI Uparikar that he accepted the money from the complainant, which was due from him and it was an amount of hand-loan which the complainant had borrowed from him, but Police Inspector Uparikar did not pay any heed. Thereafter, the Police Inspector secured the leave application of the complainant along with the other documents from him by taking him to the office and then took him to the Office of Anti Corruption Bureau. It was also the contention of the accused that Inspector Uparikar told that the panchanama and other proceedings were to be drawn, but since it would be too late for completing the procedure, he would take the action and asked the accused to go after obtaining his signatures on 4/5 blank papers. It was also the contention of the accused that the Anti Corruption Authorities got the facts written from him, which he had stated to them earlier.

5. Heard Shri. A. V. Gupta, the learned counsel for the appellant and Shri. S. J. Jichkar, the learned Additional Public Prosecutor for the State.

6. The learned counsel for the appellant submitted that it can be gathered from the evidence of the complainant during his cross-examination that on 24-1-1992, there was no demand of money by the accused and the complaint Exhibit 16 does not show that the accused had met the complainant after 24-1-1992 till the lodging of that complaint. He further submitted that there is no corroboration from Panch Witness Prakash to the version of the complainant on the point of demand alleged to have been made by the accused at the time of the trap. The learned counsel further pointed out the admission given by the complainant during his cross-examination that the amount paid by him to the accused was towards the repayment of hand-loan taken earlier by him.

The learned A.P.P. submitted the receipt of money is admitted on the part of the accused and the same is also proved. He canvassed that as per Section 20 of the Prevention of Corruption Act, when it is proved that the accused has accepted the gratification, the presumption is that it was as a motive or reward for doing or forbearing to do any official act. He further submitted that the circumstances in this case suggest that the accused had accepted the gratification as a motive for getting the leave of the complainant sanctioned.

7. The averments in the complaint lodged by the complainant, which is at Exhibit 16, are to the effect that on 24-1-1992 he carried the papers, i.e. his leave application, service book and other documents, to the Office of Executive Engineer, Bhandara and at that time the accused demanded Rs.50/- to him for getting the leave sanctioned. It can be gathered from the complaint that after 24-1-1992, there was no further meeting of thecomplainant with the Accused till the lodging of the complaint by him with the Anti Corruption Bureau. Thus as per the complaint the demand alleged to have been made by the accused on 24-1-1992 was the only demand prior to the lodging of complaint and there was no demand besides this demand till then. The evidence of complainant Shriram during his cross-examination shows that on 24-1-1992, he accompanied the Peon of the Office of Sub Division to the Office of Executive Engineer, who carried the leave papers to that office; On that day, there was a talk between himself and the accused and he requested the accused to get sanctioned his leave. The accused told him that as soon as the papers would come to him, he would forward the same to obtain the sanction. The complainant further stated that thereafter he left the said office and on that day there was no other talk between himself and the accused except the above talk. The complainant also confirmed that prior to 24-1-1992, there was no talk between himself and the accused in connection with his leave. In short, as per the complaint there was only one demand which was on 24-1-1992 and thereafter there was no demand till the lodging of complaint. However as per the evidence of the complainant in cross-examination there was no demand on 24-1-1992.

Contrary to what is stated by the complainant in his complaint, his further evidence is that on 28-1-1992, he again met the accused and on that day the accused demanded the pan supari amount to clear up the papers. Thus there is a variance between his averments in the complaint, which are to the effect that the demand of Rs.50/- was made by the accused to the complainant on 24-1-1992 and the aforesaid evidence of the complainant before the Court, which shows that there was no demand of the amount on 24-1-1992 and the demand, that was made by the accused, was on 28-1-1992. The version of the complainant in the cross-examination that the accused demanded the amount on 28-1-1992, cannot be trusted, firstly, because there is no such averment in the complaint in respect of the meeting on 28-1-1992 and in the complaint he stated to the effect that on 24-1-1992 he accured to pay the amount to the accused on 28.1.1992 or 29-1-1992. The story of demand prior to the laying of trap is thus doubtful.

8. Now we may turn to the evidence of the panch witness on the point of demand at the time of raid or trap. Panch Witness Prakash Ukey deposed that when he and the complainant went to the office of the accused, the complainant enquired with the accused whether his leave application was forwarded to Saheb (Executive Engineer). The accused said that he would send it. Thereafter, the complainant said that they would have a tea. So, the complainant, Panch Witness Prakash Ukey and the accused came out of the office. The complainant took out the currency notes from his pocket and gave them to the accused. The accused took those currency notes and kept them in his pocket. Panch Witness Prakash Ukey further testified that the accused had not demanded the said amount. His further evidence shows that the complainant gave an agreed signal to the raiding party and immediately thereafter the raid was effected.

9. The above evidence of Panch Witness Prakash Ukey shows that he categorically deposed that the accused did not demand money at the time of trap. It is worth noting that this witness was not declared hostile by the prosecution, though the above statement was made by him during his examination-in-chief itself. The question, therefore, would be why the above version of the witness should not be believed. No doubt, the recitals in Panchanama No.2 are that the accused demanded the money. But the panchanama is not a substantive piece of evidence. The recitals in the panchanama can be used only for corroboration or contradiction. Unless the panch witness deposes the fact, the mere recitals to that effect in the panchanama cannot be read. Further, it may be seen that Panch Witness Prakash Ukey was not confronted by the prosecution with the abovesaid recitals by seeking the permission to cross-examine the witness. On the point of absence of corroboration by the evidence of panch witness, the learned counsel for appellant cited Panalal Damodar Rathi Vs. State of Maharashtra, AIR 1979 SC 1191. In this cited case, besides the other factors, one was also that the version of complainant was not corroborated by the evidence of the panch witness in regard to the demand of money by the applicant. So, the evidence of the complainant on that aspect was not accepted.

10. Though complainant Shriram Kale deposed that at the time of raid, the accused demanded the amount of Rs.50/- to him as a bribe (Pan Supari amount), during the course of cross-examination, he admitted that the amount was towards the repayment of loan. The admission in the cross-examination is in the following words :

"At first I had taken Rs.50/- as hand loan from accused. At the time when we took tea, I had returned the said amount of Rs.50/- as a hand loan to the accused. Thereafter, Uparikar Saheb and other persons came there and they caught hold the hands of the accused".

The learned Trial Judge did not accept the above admission in favour of defence. He observed that it was a stray admission and earlier to that, the complainant himself had specifically denied the suggestion put to him by the counsel for the accused that he had given the amount of Rs.50/- to the accused as a repayment of hand loan amount and also the further suggestion that there was no demand of money by the accused to him and that he himself had given the amount of Rs.50/- to the accused without making any demand by the accused. During the course of further discussion the learned Trial Judge observed and the learned A.P.P. also ratified in his arguments that though it was the case of the accused that the complainant was drunkard and he was in the habit to incur loans, no suggestions to that effect were given by the counsel for the accused to the complainant during his cross-examination. In my opinion, the aforesaid admission given by the complainant in his cross-examination that previously he had incurred the hand-loan of Rs.50/- from the accused and at the time when he and the accused took tea he returned the said amount of Rs.50/- as a repayment of hand-loan, is unambiguous and categorical. So, it cannot be ignored. There was no necessity for the counsel for defence to put the suggestions to the complainant about his drinking habits and the habits of incurring loans when the admission itself was clear.

11. The accused had also examined one Asaram Mohature as a witness for defence, who deposed that the incident of giving the currency notes by the complainant to the accused took place in his presence at the tea stall. The witness stated that the complainant took out the currency notes from his pocket and gave them to the accused, saying that the amount belonged to him and the complainant also further stated that no further amount was due from him. The Trial Judge discarded the evidence of the defence witness on the ground that he was from the same department, i.e. the department of the accused, and was on friendly terms with the accused for over 22 years. However, even if the evidence of the defence witness is excluded from consideration, the aforesaid admission that came spontaneously from the complainant during his cross-examination still weighs in favour of the defence.

12. The learned Additional Public Prosecutor cited M. Narsinga Rao v. State of Andhra Pradesh, 2001(1) Crimes 79 : (2001 ALL MR (Cri) 565 (S.C.)). This case is on the point of presumption under Section 20 of the Prevention of Corruption Act 1988, in which the discussion about the compulsory presumption is made. The relevant observations are as below :

"When the sub-section deals with legal presumption it is to be understood as in terrorum 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 under Section 20 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."

13. The learned Additional Public Prosecutor submitted that in the present case also, the gratification was accepted by the accused, and, therefore, a legal presumption would arise that it was as a motive or reward for doing the official act. The learned Additional Public Prosecutor pointed out that in the case cited above, the complainant and the panch witnesses were declared hostile, still, merely the evidence of the Investigating Officer that the money was recovered from the accused was held sufficient to raise a legal presumption under Section 20 of Prevention of Corruption Act, 1988 that the gratification received was as a motive or reward for doing the official act and the accused was convicted on that basis.

14. The learned Additional Public Prosecutor further submitted that even when there is no direct evidence of demand, the circumstances may be taken into account and on that basis, the presumption can be raised. In this case, according to him, the circumstances show that the gratification received by the accused was as a motive or reward for getting the leave sanctioned. He pointed out that the leave application, service book and other documents, which were handed over to the accused in the Dak were retained by him and they were not forwarded by him to the Executive Engineer. He further pointed out that the evidence of Executive Engineer Shri. Chapake shows that only the forwarding letter Exhibit 18 was received by him and he signed it and rest of the papers were with the accused till 29-1-1992. It has further pointed out that the said documents were seized by the Investigating Officer from the accused on 29-1-1992 from his table. As per the learned Additional Public Prosecutor, the above documents were retained by the accused with an ulterior motive.

The learned Additional Public Prosecutor also pointed out another circumstance. He submitted that the evidence on record shows that when the hands of the accused were caught by the Investigating Officer, the accused was scared and he tried to get himself released and at that time he did not tell that he had received the amount as a repayment of loan.

15. The learned counsel for the appellant submitted that there is no quarrel with the proposition that once it is proved that the accused has accepted the gratification, the legal presumption arises that it is as a motive or reward for doing or forbearing to do any official act, etc. But, he canvassed, that the above presumption is rebuttable and in the present case it is rebutted by the own admission given by the complainant in his cross-examination.

16. The present case differs from the case cited above by the learned Additional Public Prosecutor. In the cited case, it was not the plea of the accused that the money was received by him on any other count. On the other hand, it was his stand that he did not receive the money at all, but it was thrust into his pocket. This defence was not substantiated and the same was disbelieved, as it was afterthought. The accused had raised that defence at the time of trial. It was held that the fact that the accused received the gratification was proved and the legal presumption was, therefore, raised that it was by way of motive for doing the official act. The presumption under Section 20 of the Prevention of Corruption Act was not rebutted as it was not and also could not be the case of the accused that the money was received by him on any other count. In the present case, the accused has admitted to have received money, but as already stated above, his stand is that it was received by him as a repayment of hand-loan given by him earlier to the complainant. The position would be that if the accused would be successful in making out that the money received by him was as a repayment of hand-loan, the presumption would stand rebutted. As already discussed above, the admission on the part of complainant that it was the repayment of hand-loan, is of very much consequence from the view point of rebuttal of presumption in above respect.

The defence of the accused in the present case that the money was received by him towards the repayment of hand-loan, is not an afterthought. No doubt, soon after he was arrested, he was scared. He might not have stated to the Investigating Officer at that very juncture that the amount was received by him as a repayment of hand-loan. But it can be imagined that he might have got scared because of the sudden trap which would be a natural conduct on the part of the person who is raided. But soon thereafter the accused had given a written say, wherein he stated that he had accepted the amount from the complainant and the said amount was a hand-loan amount and he had not demanded the amount of bribe. This fact is categorically admitted by the Investigating Officer himself during his cross-examination. Unfortunately, this written say of the accused is not placed on record by the prosecution, but the Investigating Officer himself has fairly and frankly admitted as to what was stated by the accused in his written say soon after the trap.

17. The learned counsel for the appellant canvassed that the burden on the accused to rebut the presumption is not so heavy, as is on the prosecution to prove the facts. According to him, in the instant case, the said burden stands discharged because of the aforesaid admission given by the complainant in his cross-examination. He also submitted that the burden can be discharged by the preponderance of probabilities.

18. As already discussed above, the evidence of Panch Witness Prakash Ukey is that no demand of money was made by the accused to the complainant at the time of trap. The learned Additional Public Prosecutor canvassed that the presumption under Section 20 of Prevention of Corruption Act would arise even if the prior demand is not proved. It is true that in the case of legal presumption under Section 20 of the Act, the direct proof of demand may not be necessary and inference can be drawn. But if the presumption is rebutted, the absence of demand assumes great importance and the fact that no demand was made, has to be seen coupled with the rebuttal of presumption. In the present case, the evidence of Panch Witness Prakash Ukey that no demand was made by the accused at the time of raid, has to be seen in the light of the aforesaid admission of the complainant that the amount given by him was towards the repayment of hand-loan. The above evidence of the panch witness on the point of absence of demand shall have to be believed, particularly, as he was not declared hostile and the prosecution failed to challenge his version.

19. Now as regards the circumstance pointed out by the learned Additional Public Prosecutor about the retention of papers by the accused, it will have to be seen whether the evidence shows that the papers were deliberately retained by the accused with him. It is the prosecution case that the accused did not send the leave application, service book and other papers to the Executive Engineer and he forwarded merely the covering letter Exhibit 18 to him. However, it seems that it is the practice in that office that only the covering letter is sent to the Executive Engineer and after it is signed by Executive Engineer it goes to the Inward Clerk who enters it in Inward Register and then it is handed over in the Establishment Section for taking further action (for processing the leave application). The covering letter Exhibit 18 on record shows that it was first received by the accused on 24-1-1992. The same was put up before the Executive Engineer and it was returned back to the concerned section of the accused on 28-1-1992. The accused was to take further action on the leave application after the receipt of the forwarding letter back to his section. It can be inferred that till then the leave application and other documents were not required by the Execution Engineer because the processing was yet to begin. The evidence on record shows that it was the practice that the establishment clerk used to retain the leave application and other documents to avoid the misplacement thereof. In this connection the evidence of PW 2 Mohammad Sayyad and PW 8 Goma Mothghare may be seen.

20. PW 2 Mohammad Sayyad is a retired Deputy Engineer. At the relevant time, he was working in P.W.D. Office, Bhandara, as a Deputy Engineer. His evidence in the cross-examination shows that the covering letter Exhibit 18 was received by him for nothing on 24-1-1992. On 28-1-1992, the forwarding letter Exhibit 18 went to the Inward Clerk and thereafter it was sent to the accused. This shows that the accused did not receive back the forwarding letter till 28-1-1992. This witness admitted that the concerned clerk used to keep service book, leave application, M. B. Register and other important documents with him and send only the forwarding letter to the officer concerned for noting. According to him, the concerned clerk keeps the other documents with him with a view that the papers should not be misplaced in transit.

21. PW 8 Goma Mothghare was serving as a Junior Clerk in P.W.D. Office at Bhandara. His evidence in the cross-examination also shows that the concerned clerk keeps the original important documents with him with a view that the said documents should not be misplaced. His evidence shows that on 28-1-1992 he entered the aforesaid forwarding letter Exhibit 18 in Inward Register and handed it over to the accused at 5 P.M. The Marathi version of this witness shows that till the forwarding or covering letter is not entered in the inward register, the concerned clerk does not take any action thereon.

22. The evidence of the above witnesses clearly indicates that it was the practice of the Office of Executive Engineer that the covering letter used to be sent by the concerned clerk first to the Deputy Engineer for noting. The Deputy Engineer used to forward the same to the Executive Engineer and after the necessary endorsement, the covering letter used to go back to the concerned clerk for taking further action. Till then the leave application and the other accompanying documents used to remain with the said clerk only so that they should not be misplaced in transit. In such circumstances, it cannot be said that the accused deliberately retained the leave application and other accompanying documents with him. The most important evidence in this connection is of the Executive Engineer himself (PW Pandurang Chapake). He admitted in his cross-examination that unless and untill the forwarding letter comes on the table of the concerned dealing clerk, he is not supposed to take any further action. This version also shows the practice of the office that the further action on the leave application used to be taken by the dealing clerk on receipt of the forwarding letter back to his section. It is obvious that the accused received the covering letter back in his section on 28-1-1992. Till then he could not process the leave application of the complainant. Thus, the above circumstance does not go against the accused.

23. For all the above reasons, I am of the view that the accused has been successful in rebutting the presumption that arose under Section 20 of the Prevention of Corruption Act against him on the acceptance of amount. At least on the basis of the admission given by the complainant during his cross-examination, the accused would be entitled to the benefit of doubt.

24. In the result, the appeal is allowed. The order of conviction and sentence passed against the accused/appellant in respect of the offences under Section 7 and 13 (1)(d) read with section 13 (2) of the Prevention of Corruption Act, 1988 is quashed and set aside and he is acquitted of the above offences. The fine, if paid, be refunded.

Appeal allowed.