Criminal Appeal No.155 of 2000

19th July, 2005

Petitioner Counsel: Shri. M. M. SUDAME
Respondent Counsel: Shri. Y. B. MANDPE

Cases Cited:
Ramjanam Singh Vs. State of Bihar, AIR 1956 SC 643 [Para 12,19,20,23,25]
M. K. Harshan Vs. State of Kerala, (1996)11 SCC 720 [Para 12]
Ashok Kumar Bhagchand Wardhani Vs. State of Maharashtra, 2003 ALL MR (Cri) 88=2003(1) Mh.L.J. 131 [Para 12]
Suraj Mal Vs. State (Delhi Administration), (1979)4 SCC 725 [Para 12]
Gulam Mahaboob A Malek Vs. State of Gujarat, 1981 SCC (Cri) 586 [Para 12]
S. N. Darshan Lal Vs. The Delhi Administration, AIR 1974 SC 218 [Para 12]
Tryambak Lalji Binnar Vs. State of Maharashtra, 2002 ALL MR (Cri) 1261=2002(3) Mh.L.J. 293 [Para 12,19]
Raghbir Singh Vs. State of Punjab, AIR 1976 SC 91 [Para 12]
Ram Prakash Arora Vs. State of Punjab, 1972 SCC (Cri) 696 [Para 12]
Takhaji Hiraji Vs. Thakore Kubersing Chamansing, (2001)6 SCC 145 [Para 12]
Panlal Damodar Rathi Vs. State of Maharashtra, AIR 1979 SC 1191 [Para 12]
Yudhishtir Vs. State of Madhya Pradesh, 1971 SCC (Cri) 684 [Para 12]
Hakumat Rai Nigam Delhi Vs. State, 1983 Cri.L.J. NOC 5 (Delhi) [Para 12]
M. Abbas Vs. State of Kerala, (2001)10 SCC 103 [Para 12,21]
Trilok Chand Jain Vs. State of Delhi, 1975 SCC (Cri) 725 [Para 12]
Mahamoodkhan Mahboobkhan Pathan Vs. State of Maharashtra, 1998 Cri.L.J. 3635 [Para 12]
Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh, 1979 Cri.L.J. 633 [Para 12]
C. S. Krishnamurthy Vs. State of Karnataka, 2005 ALL MR (Cri) 1315 (S.C.)=2005 Cri.L.J. 2145 [Para 12,13,17]
State of Orissa Vs. Mrutunjaya Panda, 1998 Cri.L.J. 782 [Para 12,13]
M. Narsinga Rao Vs. State of Andhra Pradesh, 2001 ALL MR (Cri) 565 (S.C.)=2001 Cri.L.J. 515 [Para 12,13,15,19,25]
Salimkhan Sardarkhan Vs. State of Gujarat, AIR 1986 SC 307 [Para 12,21]
Munshi Prasad Vs. State of Bihar, (2002)1 SCC 351 [Para 12,22]
Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav, 2005 ALL MR (Cri) 1030 (S.C.)=(2005)2 SCC 42 [Para 12,23,26]
Prakash Chand Vs. State of (Delhi Admn.), AIR 1979 SC 400 [Para 12]
Chaturdas Bhagwandas Patel Vs. State of Gujarat, AIR 1976 SC 1497 [Para 12]
C. K. Damodaran Nair Vs. Government of India, AIR 1997 SC 551 [Para 12]
Bhagwan Singh Vs. State of Haryana, AIR 1976 SC 202 [Para 13]
Raghubir Singh Vs. State of Haryana, AIR 1974 SC 1516 [Para 15]
Hazari Lal Vs. State (Delhi Admn.), AIR 1980 SC 873 [Para 15]
Bhavansingh Vs. State of Haryana, AIR 1976 SC 2002 [Para 16]
AIR 1954 SC 322 [Para 20]

JUDGMENT

JUDGMENT :- The appellant herein who was convicted by the Special Judge, Wardha in Special Case No.4 of 1996 by Judgment and order dated 12-05-2000 under Section 7(1) of the Prevention of Corruption Act and was sentenced to undergo Rigorous Imprisonment for six months and to pay a fine of Rs.1,000/- in default sentence for two months Rigorous Imprisonment, is in appeal before this Court.

2. The complainant Madhukar Dhote lodged oral report to Anti Corruption Bureau, against the accused who was working as Head Constable in Police Station Karanja (Ghadge) in Wardha District. The complainant's grievance was that for refraining from taking action in relation to the complaint submitted by one Sudhakar Borkar's mother, the complainant has already paid to the accused bribe of Rs.2,000/-. According to complainant Madhukar Dhote the accused again demanded a sum of Rs.1500/- for releasing complainant Madhukar and his servant on bail in another complaint filed by Dhanraj Mohod for causing injury due to assault to his cow out of which he had then paid on two occasions a sum of Rs.100 and 200, however, now he was unwilling to pay balance demand of Rs.1200/- and hence the complaint.

3. Upon this complaint all preparations namely, presentation of currency of a sum of Rs.12,000/- by the complainant panchanama etc. thereof, further panchanama thereof of those currency notes application of phenophthelin Powder to them was completed. Efforts of successive raids failed, ultimately, after repeating the entire procedure on 22-08-1995, the procedure prior to raid was again undertaken.

4. The accused and the panch witness No.1 namely Ashok Raghunathji Waghade went to the Police Station and then to the house of the accused, where the accused met the complainant and Ashok Waghade, and enquired whether the complainant had brought money, but told them to come near Veterinary Hospital. The complainant and the Panch Witness No.1 Ashok Waghade then kept waiting near Veterinary Hospital where, according to the complainant, the accused demanded the amount of bribe and it was paid to him by the complainant. The complainant then gave the decided signal, the raiding party appeared on the spot, caught hold both the hands of the accused and after preparing Sodium Carbonate solution and dipping fingers of the accused in it found that, the colour of the solution appeared on the hands became violet. Thereafter, the panchanama of raid was recorded, Crime No.193 of 1995 was registered.

After the prosecution secured the sanction from the Superintendent of Police, Wardha for prosecution for the offence punishable under Section 7(1) of Prevention of Corruption Act, the charge-sheet was filed against the accused.

5. Upon framing the charge, accused pleaded not guilty. In the trial, the evidence of the witnesses except Ashok Waghade panch witness no.1 was recorded as this witness had died in the mean time.

The Panch witness No.2 Gajanan Ambatkar was examined as PW-1. Certain departures or discrepancies were found in his statement, may be since, when this witness, though he was not present when actually the alleged demand was made by the accused firstly at his house and secondly at the Veterinary Hospital, still, this witness had deposed that the accused has demanded the bribe in his presence. Probably, due to this improvement which rendered testimony of this witness to be devoid of truth, he was declared by the prosecution to be hostile. P.W. No.1 Gajanan Ambatkar was then cross-examined, though all panchanamas were already got proved from this witness.

6. The prosecution has then examined complainant Madhukar Dhote who gave account of first payment of bribe, and the second demand leading to the complaint, cause thereof, the story of lodging of oral report, all panchanamas procedure and finally that of successful raid.

The prosecution also examined other witnesses to prove that accused was in charge of public duty and that recovery of the amount of bribe was done from him, and to prove the validity of sanction.

7. The accused in his statement under Section 313 of Cr.P.C. alleged since he has registered offence against Shri. Madhukar Dhote and his brother, they have falsely involved him in the offence.

Thereafter, the accused examined one defence witness the Auto Rickshaw Driver in whose auto rickshaw the accused was travelling, which Auto Rickshaw which was stopped by two unknown persons suggesting that the complainant and the person accompanying him stopped the auto rickshaw and the complainant requested the accused to see a buffalo which was brought near the Hospital as it was hurt. After the accused got down from the Auto Rickshaw, the complainant thrusted money in the left hand of the accused, and further that the accused started saying that he did not like money and he was not interested in money and that thereafter, the Officials of Anti Corruption Bureau conducted the raid.

8. With the aforesaid evidence, the Trial Judge proceeded to decide the case. The Trial Court formulated the questions (a) as to the validity of sanction, (b) as to whether on 22-08-85 the accused was discharging his duty as a public servant, (c) as to whether the accused accepted gratification of Rs.1200/- other than legal remuneration from the complainant Madhukar Dhote, with an intention of bribery to do further official act, (d) lastly about money being found in his possession. All questions were answered by the Special Judge in the affirmative i.e. against the accused and hence convicted and sentenced the accused.

9. In the present appeal, the learned Advocate for the appellant Shri. M. M. Sudame advanced the submissions on following points:-

(i) that the witness as to demand of bribe by accused, namely the panch witness Ashok Waghade being dead, independent witness as to demand of bribe available with the prosecution was not available with prosecution.

(ii) the statement of the complainant did not have any better value than that of accomplice and could not be accepted in absence of corroboration.

(iii) second panch witness who is PW-1 being declared hostile, his testimony has to be dealt with extreme caution and in absence of independent corroboration, it has no evidentiary value, while no corroboration is available;

(iv) as the Superintendent of Police of Anti Corruption Bureau directed the accused to take out money from his pocket, it is not a case of the recovery of bribe amount from the accused is not done by the Searching Party;

(v) that no public servant would accept money in presence of strangers, the location where the amount is said to have been given which is a public place and not the usual place of working or house of the accused;

(vi) unless the demand of bribe, its payment and recovery all three are proved, the accused did not have the duty to prove that the amount was received was not by way of gratification, as any presumption is not raised;

(vii) that the prosecution witness the competent authority stated in the examination-in-chief that all original records were transmitted to him when the sanction was accorded, however, in the cross-examination accepted that the "original record was not available with him and the sanction was granted on the basis of xerox copies", destroyes the truthfulness of this witness and vitiates the sanction; and the sanction being vitiated, the prosecution is nullity;

(viii) The response of the accused on foisting money on him was noted in the raid panchanama Exh.18 by the Police where he had disclaimed having received the amount uttering that it was foisted upon him was supported by the evidence of defence witness no.1 and claimed acquittal, and this was his reflex and genuine response and not an after thought plea.

(ix) the defence of the accused that money was foisted upon him was not required is to be proved by the accused to the hilt, and what he was required to discharge the burden sheerly to create reasonable probability by preponderance of proof of his defence and this burden was duly discharged by him.

(x) The cow allegedly injured was in fact, not injured as can be seen from the testimony of prosecution witness no.2 Pandurang Ingle, the peon of Gram Panchayat and the story that the cow was brought to the Veterinary Hospital in the injured status was gravely suspicious.

10. Learned Advocate for the appellant made his submissions and propositions noted above by reading out the notes of evidence and panchanama Exh.18, and by relying upon precedents which are discussed hereinafter at appropriate place.

11. On the other hand, in reply, learned Asstt. Public Prosecutor replied contending that :

(i) once the recovery of the amount of bribe is either admitted or proved, the question of proof of actual demand and payment whithers away;

(ii) that on the facts of the case, the recovery of amount of bribe from the person of accused was proved;

(iii) that the defence had failed to prove or raise reasonable preponderance and probability of facts that the amount was foisted on him; and

(iv) that any minor defect in the process of sanction unless it vitiates the process of justice, should not carry any weightage and therefore, the sanction was liable to be held to have been properly granted and conviction did not warrant any interference.

12. Learned Advocate for the appellant has cited various Judgments in support of his propositions. These citations are listed as below which are narrated with reference to the point on which those are cited.

(A) Demand of bribe amount and its acceptance are reacquired to be proved by the prosecution and proof of only acceptance is not sufficient.

(i) AIR 1956 Supreme Court 643, Ramjanam Singh Vs. The State of Bihar.

(ii) (1996)11 Supreme Court Cases 720, M. K. Harshan Vs. State of Kerala.

(iii) 2003(1) Mh.L.J. 131 : [2003 ALL MR (Cri) 88], Ashok Kumar Bhagchand Wardhani Vs. State of Maharashtra.

(iv) (1979)4 Supreme Court Cases 725, Suraj Mal Vs. State (Delhi Administration)

(v) 1981 Supreme Court Cases (Cri) 586, Gulam Mahaboob A Malek Vs. State of Gujarat.

(vi) AIR 1974 Supreme Court 218, S. N. Darshan Lal Vs. The Delhi Administration.

(vii) 2002(3) Mh.L.J. page 293 : [2002 ALL MR (Cri) 1261], Tryambak Lalji Binnar Vs. State of Maharashtra.

(B) Evidence of Independent witness apart from complainant is necessary.

(i) AIR 1976 Supreme Court 91, Raghbir Singh Vs. State of Punjab.

(ii) 1972 Supreme Court Cases (Cri) 696, Ram Prakash Arora Vs. State of Punjab.

(C) The effect of failure to examine the material witnesses to be fatal to the prosecution evidence.

(i) (2001)6 Supreme Court Cases 145, Takhaji Hiraji Vs. Thakore Kubersing Chamansing and others.

(D) The effect of omissions from the evidence brought by the prosecution.

(i) AIR 1979 Supreme Court 1191, Panlal Damodar Rathi Vs. State of Maharashtra.

(ii) 1971 Supreme Court Cases (Cri) 684, Yudhishtir Vs. State of Madhya Pradesh.

(E) Nature of presumption under Section 4(1) of the Act of 1947 and Section 20 under the Act of 1971.

(i) 1983 Cri.L.J. NOC 5 (Delhi), Hakumat Rai Nigam Delhi Vs. The State.

(ii) (2001)10 Supreme Court Cases 103, M. Abbas Vs. State of Kerala.

(iii) 1975 Supreme Court Cases (Cri) 725, Trilok Chand Jain Vs. State of Delhi.

(iv) 1998 Cri.L.J. 3635, Mahamoodkhan Mahboobkhan Pathan Vs. State of Maharashtra.

(v) 1979 Cri.L.J. 633, Mohd., Iqbal Ahmed Vs. State of Andhra Pradesh.

(vi) 2005 Cri.L.J. 2145 : [2005 ALL MR (Cri) 1315 (S.C.)], C. S. Krishnamurthy Vs. State of Karnataka.

(vii) 1998 Cri.L.J. 782, State of Orissa Vs. Mrutunjaya Panda.

(F) Disclaimer and demour shown by the accused soon after alleged acceptance of bribe duly accredited.

(i) 2001 Cri.L.J. 515 : 2001 ALL MR (Cri) 565 (S.C.), M. Narsinga Rao Vs. State of Andhra Pradesh.

(G) Weightage to be given to the defence witnesses cannot be less than the prosecution witnesses.

(i) AIR 1986 Supreme Court 307, Salimkhan Sardarkhan Vs. State of Gujarat.

(ii) (2002)1 Supreme Court Cases 351, Munshi Prasad and others Vs. State of Bihar.

(H) How is the rule of precedent to be applied in Criminal Cases.

(i) (2005)2 Supreme Court Cases 42 : [2005 ALL MR (Cri) 1030 (S.C.)], Kalyan Chandra Sarkar Vs. Rajesh Ranjan Alias Pappu Yadav and another.

(ii) AIR 1979 Supreme Court 400, Prakash Chand Vs. State of (Delhi Admn.).

(iii) AIR 1976 Supreme Court 1497, Chaturdas Bhagwandas Patel Vs. The State of Gujarat.

(I) Trial Court wrongly relied on the following Judgment.

(i) AIR 1997 Supreme Court 551, C. K. Damodaran Nair Vs. Government of India.

13. Learned Asstt. Public Prosecutor Shri. Y. B. Mandpe placed reliance on the following Judgments:

(A) Sanction -

(i) 2005 Cri.L.J. 2145 : [2005 ALL MR (Cri) 1315 (S.C.)], C. S. Krishnamurthy Vs. State of Karnataka.

(ii) 1998 Cri.L.J. 782, State of Orissa Vs. Mrutunjaya Panda.

(B) Hostile witness -

(i) AIR 1976 Supreme Court 202, Bhagwan Singh Vs. The State of Haryana.

(C) Presumption -

(i) 2001 Cri.L.J. 515 : 2001 ALL MR (Cri) 565 (S.C.), M. Narsinga Rao Vs. State of Andhra Pradesh.

14. In order to appreciate the frame of law within which the facts of the case are required to be examined, it would be convenient to discuss the law cited and relied upon by the prosecution first as hereinafter.

15. The prosecution proceeds on certain basic assumptions namely:-

(i) the presumption under Section 20(1) of Prevention of Corruption Act was duly raised and as per the law as governing the field after 2001 Cri.L.J. 515 : 2001 ALL MR (Cri) 565 (S.C.), M. Narsinga Rao's case, the prosecution has by very fact of proof of facts of recovery of currency note of the bribe amount from the person of accused, raised mandatory presumption under Section 20(1) of the Prevention of Corruption Act, 1988. Thus, the prior two stages of demand and payment of bribe became irrelevant and the burden to prove that the accused did not accept the amount by way of illegal gratification was to be discharged by him.

(ii) though it is said easier that sanction order is monotonous, the sanctioning authority had stepped into the witness box and proved the sanction with due application of mind and therefore, the prosecution is well supported and admission of the competent authority that it had only zerox copies while passing order of sanction does not vitiate the sanction;

(iii) only evidence available with the prosecution as to demand is the complainant as first panch witness is dead;

(iv) Second panch witness who is not witness of demand, is a witness of recovery of bribe amount and is a witness of the panchanamas i.e. he is the important witness of trap. Though this witness has spoken besides his own knowledge and was, therefore, declared hostile, his having proved the panchanamas of trap and recovery, has not just proved these facts but has also corroborated the story of prosecution and falsifies the plea of the defence that the bribe money was found on his person, it was foisted upon him.

In view of the submissions of the prosecution, it shall suffice to refer to para 19 of the M. Narsinga Rao's case which reads as follows :

"19. . . . . . . . . . . . . . . .Illustration (a) to Section 114 of the Evidence Act says that the Court may presume that "a man who is in the possession of 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." That illustration can profitably be used in the present context as well when prosecution brought reliable materials that appellant's pocket contained phenolphthalein smeared currency notes for Rs.500/- when he was searched by PW-7 DSP of the Anti Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes are relevant and useful to help the Court to draw a factual presumption that appellant had willingly received the currency notes."

Upon said observation, Lordships of the Supreme Court accepted similar view taken by the Division Bench of Supreme Court in AIR 1974 SC 1516, Raghubir Singh Vs. State of Haryana and Hazari Lal Vs. State (Delhi Admn.), AIR 1980 SC 873, where in the latter Judgment i.e. Hazarilal's case, speaking for the Bench, Lordships of the Supreme Court Justice Chinnappa Reddy had held that :

"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. Under Section 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 under Section 114 of the Evidence Act is that the Court may presume that a person who is in possession of the stolen gods soon after the theft, is either the thief or has received the goods knowing them to be stolen, unless he can account for the 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 under Section 4(a) 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."

After quoting the above referred quotation, Lordships of Supreme Court in M. Narsinga Rao's case held that the dictum in para 23 is as follows:

"23 . . . . . . . . . . . . . .The aforesaid observation is in consonance with the line of approach which we have adopted now. We may say with great respect to the learned Judges of the two Judge Bench that the legal principal on this aspect has been correctly propounded therein."

Thus, now the position of law which is governing the field as it emerges is that once the presumption under Section 20(1) is raised, and it is, on the facts of the given case a burden upon the accused to over come the said presumption.

Thus according to learned APP recovery being proved, the hostile witness was trustworthy and his testimony stood corroborated. In the result according to learned APP the conviction and sentence was well supported and un-assailable.

16. Learned APP placed reliance on Bhavansingh Vs. State of Haryana reported in AIR 1976 SC 2002 contending that when important documents pertaining to proof of fact relating to raid and recovery were proved by hostile witness PW-1, the proof of fact is not lost and barring the discrepancies in his evidence, rest of the facts proved by him are liable to be relied upon.

17. Learned APP further argued on the basis of C. S. Krishnamurthy Vs. State of Karnataka, 2005 Cri.L.J. 2145 : [2005 ALL MR (Cri) 1315 (S.C.)] that the defect in the sanction was liable to be over looked.

18. In the light of the test as to attracting the presumption discussed in fore going para, it would be useful to discuss the law as relied upon by the defence which is done in the paras to follow.

It is clear that the defence has to face a situation that trial Court has held that tainted currency notes were recovered from the person of the accused and that the Trial Court had disbelieved the defence version about tainted currency notes being foisted on him.

19. Thrust of the submissions of appellant is on the proposition that demand, payment and recovery of bribe amount, all these three is imperative.

In order to overcome the rigour of the Judgment of Lordships of Supreme Court in M. Narsinga Rao Vs. State of Andhra Pradesh, 2001 Cri.L.J. 515 : 2001 ALL MR (Cri) 565 (S.C.) (Coram Judges K. T. Thomas, U. C. Banerjee and R. P. Sethi, JJ.), Learned Advocate for appellant urged that this Judgment requires that 'Court may presume' that the accused who took out the currency notes from his pocket, the rebuttable presumption is attracted, two Judgments rather come to his rescue namely:

(1) 2002(3) Mh.L.J. 293 : [2002 ALL MR (Cri) 1261], Tryambak Lilaji Binnar Vs. State of Maharashtra.

(2) AIR 1956 SC 643, Ramjanam Singh Vs. State of Bihar (Coram: Lordships B. K. Mukherjee, Bose and Jagannadhadas).

20. Though two Judgments are referred, it shall suffice to discuss the Supreme Court Judgment in case of Ramjanam Singh (Supra) referred to above as in former Judgment it has been followed. It is seen that as to the rules of appreciation of evidence, Lordships of Supreme Court emphasised the need of demand being proved as well as payment of bribe and were not satisfied with bare fact of recovery of currency notes from the accused holding that such matters need to be scrutinized with strict test as already held by the Supreme Court in AIR 1954 SC 322. What was to be decided is the "intention of the accused of carrying through his nefarious purpose from start to finish which he has firmly and finally decided to be". The observations of Supreme Court requiring strictness of view while examining the evidence as is seen from para 37 of Judgment in Ramjanam Singh's case supra needs to be better referred by quotation:

"37. . . . . . . . . . . . . Now, whatever the truth of this tale may be, it is evident from the prosecution case that this was not a case of laying a trap, in the usual way, for a man who was demanding a bribe but of deliberately tempting a man to his own undoing after his suggestion about breaking the law had been finally and conclusively rejected with considerable emphasis and decision.

Whatever the criminal tendencies of a man may be, he has a right to expect that he will not be deliberately tempted beyond the powers of his frail endurance and provoked into breaking the law; and more particularly by those who are the guardians and keepers of the law. However, regrettable the necessity of employing agents provocatures may be (and we realise to the full that this is unfortunately often inevitable if corruption is to be detected and bribery stamped out), it is one thing to tempt a suspected offender to overt action when he is doing all he can to commit a crime and has every intention of carrying through his nefarious purpose from start to finish, and quite another to egg him on to do that which it has been finally and firmly decided shall not be done.

The very best of men have moments of weakness and temptation, and even the worst, times when they repent of an evil thought and are given an inner strength to set Satan behind them; and if they do, whether it is because of caution, or because of their better instincts, or because some other has shown them either the futility or the wickedness of wrongdoing, it behoves society and the State to protect them and help them in their good resolve; not to place further temptation in their way and start afresh a train of criminal thought which had been finally set aside. This is the type of case to which the strictures of this Court in Shiv Bahadur Singh Vs. State of Vindhya Pradesh, AIR 1954 SC 322 at p.334(A) apply."

The very observations quoted above have been relied upon by the learned Single Judge of this Court Justice A. B. Palkar (as His Lordship then was) in above referred Tryambak Vs. Lilaji Binnar's case.

Other cases on the point of demand are the Benches having two Honourable Judges of Apex court and are distinguished in M. Narsinga Rao's case and therefore, those are not discussed.

Thus, the conclusion to be reached is that even on the application of ratio laid down in M. Narsinga Rao's Case the rule that all three acts namely demand, by accused, payment to him and recovery from him needs to be proved, and on the facts of present case this rule applies.

21. Now coming to the question namely if on facts case is one where ratio in M. Narsinga Rao's case governs the situation, and the prosecution has raised the presumption, may be rebuttable and in turn, the question arises is whether the defence has rebutted such presumption. In this regard, it shall suffice to discuss in brief other Judgments relied upon by the Advocate for the appellant.

The citations quoted under the heading 'B' in paragraph No.13 referred to the precedents of the Supreme Court on the point of need of independent and trustworthy witnesses. These Judgments need not be discussed in details for the reason that unless the testimony inspires confidence, the rate of truth in the evidence could not be demonstrated and such evidence would not persuade the Judge to accept the proof of fact.

Further submission of the learned Advocate that what is the nature of evidence to be brought by the defence if at all the presumption is raised the value of the defence evidence is to be assessed with same yardstick as applied to evidence of the prosecution. This Court is of the view that for this, the reliance is properly placed by the defence on the Judgment of Supreme Court namely AIR 1986 SC 307, Salim Khan Sardar Khan Vs. State of Gujarat, which view has later been followed in M. Abbas Vs. State of Kerala, 2001(10) SCC Page 103. In this later Judgment, the Lordships of Supreme Court reiterated that :

"10. . . . . . . . . . . . When the accused sets up a defence and offers explanation it is well settled that he is not required to prove his defence beyond reasonable doubt, but only by preponderance of probabilities."

22. Law as laid down by Their Lordships in 2002(1) SCC 351, Munshi Prasad and others Vs. State of Bihar is eloquent enough and the dictum to be drawn is that:-

"defence witnesses are entitled to equal respectibility and treatment as that of prosecution. The issue of credibility and trustworthiness are also to be attributed to the defence witness on par with that of prosecution and lapse on the part of the defence witness is not be treated differently than that of the prosecution."

The ratio of this Judgment is to be kept in mind while examining the defence and its witnesses.

23. Further observations in Ramjanam Singh's Case AIR 1956 SC 643, the Three Judge Bench Judgment contending that as laid down in para 42 in 2005(2) SCC Page 42 : [2005 ALL MR (Cri) 1030 (S.C.)], Kalyan Chandra Sarkar's case observing that:

"42. . . . . . . . . . . . . It is also a well-established principle that while considering the ratio laid down in one case, the Court will have to bear in mind that every judgments must be read as applicable to the particular fact proved or assumed to be true since the generality of expressions which may be found therein are not intended to be expositions of the whole of the law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. A case is only an authority for what it actually decides, and not what logically follows from it. See: (1) Quinn Vs. Leathem, State of Orissa Vs. Sudhansu Sekhar Misra, (3) Ambica Quarry Works Vs. State of Gujarat."

Needs to be borne in mind while applying Law laid down by two co-ordinate benches having same strength.

24. In the result, the test to be applied is, whether the facts, primary to proof of facts of acceptance and payment of bribe was initially proved enough to the extent and level of raising presumption, and if so, what is the weight of the defence raised by the accused was adequate enough to create preponderance of proof of his defence being factual and probable.

25. On the basis of the facts of the present appeal, upon scrutiny of evidence this Court reaches the conclusion that appellant has successfully raised the defence which brings his defence up to sustain the test of raising a probable defence coming out raising the presumption held in case of M. Narsinga Rao Vs. State of Andhra Pradesh, 2001 Cri.L.J. 515 : 2001 ALL MR (Cri) 565 (S.C.), and has been able to avail the conditions of requiring the prosecution to require its case to sustain the text of proof of demand, payment and recovery of bribe as ruled by Lordships of Supreme Court in Ramjanam Singh's case reported in AIR 1956 SC 653.

26. This Court is thus pursuaded to follow the ratio as laid down in Ramjanam Singh's case by relying upon 2005(2) SCC 42 : [2005 ALL MR (Cri) 1030 (S.C.)], Kalyan Chandra Sarkar's case referred to in para 24 herein before.

27. Therefore, the conclusion that this Court reaches is that the prosecution has failed in the test of proving demand by the accused, payment to him and recovery of bribe money, all the three from the accused person. At the same time, the accused has become successful in raising reasonable preponderance of his probable defence that money is thrusted upon him and the prosecution evidence namely raid panchanama Exh.18 itself comes to the rescue of the accused where the raiding party has recorded in said Exh.18 the disclaimer by the accused. This itself establishes that the plea of the accused that he refused to take money and it was foisted upon him was not a last moment and an afterthought and/or a chance plea as was found by the Lordships of the Supreme Court in existence as a fact in M. Narsinga Rao's Case. Thus, the accused has discharged the burden of rebutting the rebuttable statutory presumption, assuming that the presumption u/s 20(1) of Prevention of Corruption Act, was raised.

28. In the result, the Judgment and order of conviction and sentence is liable to be set aside and is set aside. The accused be set at liberty. Fine amount be refunded. The bail and bond stands cancelled.

Appeal allowed.