JUDGMENT 1. The judgment of the Court was as follows: 2. This is an appeal from a decision of the learned Chief Presidency Magistrate convicting the Appellant u/s 161 of the Indian Penal Code and sentencing him to rigorous imprisonment for six months and a fine of Rs. 1,000 in default to rigorous imprisonment for a further period of three months. 3. The facts from which the appeal arises are given conveniently in the following extract from the judgment: The accused P.K. Ghosh was the Area Lands Hirings and Disposals Officer under the Government of India. His office was-at 31, Chowringhee Road, first floor, more popularly known as the building of Messrs. Hall and Anderson, Ltd. Certain military structures and other properties lying at Uday Villa, Kamarhatti, were sold to Messrs. Jagadish Timber, Ltd. from the Lands Hirings and Disposals Department on August 13, 1947, at Rs. 28,000. The accused signed the contract for sale and did everything connected with it. These assets known as W.D. assets remained with the M.B.S., P.C. Lahiri; S.D.O., M.E.S., Cossipore, was in charge of these assets at Uday Villa, R.N. Mitra, S.D.O., Lands Hirings and Disposals, was subordinate to the accused. According to the prosecution case the above three officers put obstacles in the way of the purchaser firm removing the W.D. assets at Uday Villa. They even went to the length of driving out the men of the contractor employed by the firm for removing the assets before they could be collected and removed. This was done on January 14, 1948. The firm had grievances which one U.P. Varma, a representative of the firm, came to represent to the accused. The accused had a talk with R.N. Mitra and had also certain conversation with P.C. Lahiri over the phone. Later, the accused is said to have proposed that for facilities to be given to the firm, the firm should satisfy them. It was suggested by the accused that U.P. Varma should accompany R.N. Mitra to P.C. Lahiri for a final settlement. On January 20, 1948, U.P. Varma saw Lahiri at his office with Mitra. There Lahiri demanded a sum of Rs. 5,000 for giving the facilities to the firm. Lahiri had a conversation with the accused over the phone and finally came down to Rs. 4,000 to be paid on January 21, 1948. On January 20, 1948, U.P. Varma saw Lahiri at his office with Mitra. There Lahiri demanded a sum of Rs. 5,000 for giving the facilities to the firm. Lahiri had a conversation with the accused over the phone and finally came down to Rs. 4,000 to be paid on January 21, 1948. On January 21, 1948, U.P. Varma saw the accused at his office. The accused is said to have demanded a further sun of Rs. 300 to be paid exclusively to him for the initiative taken by him. The money was to be paid that very day. Varma saw the Deputy Superintendent of Police, Delhi Special Police Establishment, at Calcutta and lodged the information with him, which is Ex. 6. Inspector S.B. Mitra was deputed to investigate. He applied to the Chief Presidency Magistrate, Sri N.K. Ray Chaudhuri, for permission to investigate and for deputation of a magistrate to witness the payment. It was arranged that payment would be tendered by three hundred-rupee G.C. Notes. The numbers of the G.C. Notes were declared in the application. The application is Ex. 1. The-Chief Presidency Magistrate issued the necessary orders and deputed Sri J.C. Ghosh, one of the Additional Presidency Magistrates, for the purpose. Reaching the office of the accused Sri J.C. Ghosh, along with Inspector Mitra and U.P. Varma went upstairs. The Deputy Superintendent of Police, Sri B.C. Datta, remained downstairs. On the way Sri J.C. Ghosh had compared the numbers of the G.C. Notes with those mentioned in the application and being satisfied as to identity, put them in a cover (Ex. I) and handed them over to U.P. Varma. The G.C. Notes are collectively marked Ex. II. The prosecution further is that U.P. Varma entered the office room of the accused having previous to that a talk with R.N. Mitra. Varma paid the three G.C. Notes to the accused which the accused accepted and kept inside the right-hand drawer of his table. The accused called R.N. Mitra after having received the money and asked him to take Varma to the M.E.S. office at Cossipore with his order enfaced on a letter marked Ex. 4. Leaving the room of the accused, Varma gave a signal to the magistrate and the inspector, who were waiting outside, to indicate that the money had been received. The accused called R.N. Mitra after having received the money and asked him to take Varma to the M.E.S. office at Cossipore with his order enfaced on a letter marked Ex. 4. Leaving the room of the accused, Varma gave a signal to the magistrate and the inspector, who were waiting outside, to indicate that the money had been received. He also whispered to say that the money had been kept within the right hand drawer of the table. The magistrate and the inspector entered the room of the accused and having disclosed their identities, challenged him with having received a bribe. The accused denied. Inside the right hand side drawer of accused's table was found the envelope (Ex. I) which the accused threw away into a waste paper basket. The envelope was picked up. It did not contain the G.C. Notes. Body search was demanded and the accused brought out his purse inside which were found the three G.C. Notes in question along with some of other papers and money. The accused made a statement to the magistrate to the effect that a Marwari had some whose prosecution he had asked for over removal of the Uday Villa assets. The Marwari requested withdrawal of the prosecution and the accused had refused Before leaving, the Marwari had placed the envelope with the money in the drawer. The accused had called him back when the magistrate and the inspector had entered his room. The statement is Ex. 3. I have stated the facts in some details for better appreciation of the defence. The defence finally taken was that the transaction with Messrs. Jagadish Timber, Ltd., proved to be troublesome all through. The cheque issued by the company for security deposit was dishonoured and the accused had to compel them to deposit in cash. There was dispute over sheds sold. There was delay over removal of the assets. There was complaint about removal of goods not sold. For all these, the accused had to forfeit the security deposit and also turn out their men on January 14, 1948. On January 20, Varma, the representative of the company, saw the accused with an application regarding Ezra Arakie Park, another W.D. asset, sold to the company. The accused flatly refused to do anything unless the penalty money due under the contract for the Uday Villa assets for overstay was paid. On January 20, Varma, the representative of the company, saw the accused with an application regarding Ezra Arakie Park, another W.D. asset, sold to the company. The accused flatly refused to do anything unless the penalty money due under the contract for the Uday Villa assets for overstay was paid. The penalty money amounted to Rs. 300. It was this money which was paid to him. 4. At the outset we would make the comment that the learned Chief Presidency Magistrate has approached the case on what now appears to be a somewhat unsound basis. Immediately after the passage which is quoted above the learned magistrate observes: The payment and receipt of the money having been admitted there is no difference between the parties except on two points.... 5. Namely, whether the money was paid as a bribe and whether it was received as a reward, etc. The foundation of the statement is that the explanation of the accused contained in his statement u/s 342 of the Code of Criminal Procedure is the operative explanation, but as it will appear later, we are of opinion that the operative explanation, for the purposes of the criminal law, is to be taken as contained in Ex. 3 to which we shall refer again. 6. We proceed to summarise and comment on the arguments. The first argument placed before us was that the conviction rests in substance on the evidence of the witness Varma and it was submitted that this witness was in the position of an accomplice and therefore, his evidence could not be relied on without independent corroboration in material particulars, and alternatively, that he was not a witness of truth, as his statements were shown to be untrue in certain particulars. No doubt the witness Varma is, to some extent, in a position analogous to that of an accomplice, but there are numerous decisions to the effect that a person who takes part in laying a trap for a suspected person is not entirely in the position of an accomplice. We prefer to base our appreciation of the evidence of the witness Varma rather on the position that on the previous history of disagreement between the Government servants concerned and the firm represented by Varma. We prefer to base our appreciation of the evidence of the witness Varma rather on the position that on the previous history of disagreement between the Government servants concerned and the firm represented by Varma. Varma was not entirely disinterested in his actions; in other words, that it is just as possible that he was moving with the motive of getting bribery punished as that he was moving in the interests of his firm. The result is that we approach his evidence with an appreciable degree of suspicion. 7. Further, Mr. Basu submitted that the magistrate, P.W. 1, had been deputed to witness the incident, but in fact he stayed outside during the entire course of the incident. This, in our opinion, is a serious criticism. We appreciate that it would have been difficult for the police officer to bring in a complete stranger to the transaction between the Appellant and Varma. At the same time, cases of bribery have been dealt with by the courts under the special legislation introduced soon after the outbreak of war for some years now and ways and means have been evolved of securing witnesses to incidents which in their very nature must usually take place without witnesses. We also appreciate that on the it has been placed before us, the information as to the alleged intention to give a bribe being received in the morning and the time fixed being the same afternoon,--the police officer had very little time to work out his arrangements. Taking all this into consideration, we still find it difficult to conceive what was the intention of the police officer in asking for a magistrate as a witness and what was the intention of the magistrate in going with the police officer without some arrangement having been made for him to function as a witness. It is no doubt unprofitable to speculate as to intentions, but the fact remains that the magistrate was not a witness to the incident. 8. Next, the learned advocate attacked the admissibility of Ex. 3. Exhibit 3 is the statement made by the Appellant to the magistrate and recorded by the magistrate, within an hour at most after the incident. It is here reproduced: Statement of Mr. P.K. Ghosh, Area Lands and Hirings Officer, taken by me at his office in Hall and Anderson Buildings at 3-40 p.m. on January 21, 1948. 3. Exhibit 3 is the statement made by the Appellant to the magistrate and recorded by the magistrate, within an hour at most after the incident. It is here reproduced: Statement of Mr. P.K. Ghosh, Area Lands and Hirings Officer, taken by me at his office in Hall and Anderson Buildings at 3-40 p.m. on January 21, 1948. One Marwari, who is a representative of Jagadish Timber Works, came to me a little before you came. I have asked for his prosecution in connection with alleged renoval of certain articles from Uday Villa, Kamarhati. I have also written to the Garrison Engineer about it and also to the contractor for returning the goods, threatening prosecution in default. In another letter I have also written to the contractor Jagadish Timber Co. intimating that I have forfeited his security deposit. When the Marwari came here today he requested me to withdraw the prosecution. I asked him to go to the Garrison Engineer and told him that it was none of my business. He left after leaving the envelope with the money in this drawer (shows right hand side drawer of his table). He left as I called him back. (Sd.) J.C. Ghosh. 21-1-48. Read over to Mr. P.K. Ghosh, who admits it to be correct. (Sd.) Prabhat Kumar Ghosh.21-1-48. (Sd.) J.C. Ghosh.21-1-48. 9. The statement of the accused recorded u/s 342 of the Code of Criminal Procedure sets up a different story and it necessarily follows that the defence abandoned the statement on record as Ex. 3 in favour of the statement recorded u/s 342. The gist of this statement is that there was a continued disagreement between the Government and the company over their rights and that on January 20, 1948, Varma saw the Appellant with an application, which the Appellant refused to entertain unless certain restitution was made and the penalty of Rs. 300 at Rs. 15 per day was paid. The statement continues to the effect that Varma promised payment and brought the penalty money on January 21, 1948; that, on Varma bringing the penalty money, the Appellant directed enquiry into the matter of restitution and continues: Varma left an envelope in accused's drawer. After he had left accused counted and found Rs. 300 there, thought it to be penalty money and put the money into his purse and started calling back Varma. After he had left accused counted and found Rs. 300 there, thought it to be penalty money and put the money into his purse and started calling back Varma. The magistrate and the police officer entered and challenged, accused denied acceptance of bribe and protested. The police officer prevented him offer the explanation. Accused had to bring out the money and a search list was prepared of money seized. B.C. Datta entered accused's office. Accused wanted to explain but he was asked to take the plea in court. 10. We observed on this point that the statement was recorded on January 27, 1949, approximately one year after the statement recorded as Ex. 3. 11. On this condition of the defence, the arguments were placed before us to the effect that the statement recorded as Ex. 3 was inadmissible. Certain decisions were placed before us on this topic. For example, the case of Nazir Ahmad v. King-Emperor ILR (1939) Lah. 629 : L.R. 63 IndAp 372 and the case of (1949) L.R. 76 I.A. 147 (Privy Council) . These decisions, however, referred to confessions and it is clear, from a perusal of Ex. 3, that it is not a confession but an exculpatory explanation and if an authority be required for the proposition that an exculpatory statement is not a confession, it will be found in the decision in Pakala Narayana Swami v. King-Emperor ILR (1939) Pat. 234 (251) : L.R. 66 IndAp 66 (80-1). No doubt, the learned advocate felt himself under some compulsion to attack Ex. 3, as the defence had pinned its faith to the necessarily inconsistent story set up in the statement u/s 342 of the Code of Criminal Procedure, but we are satisfied that Ex. 3 is admissible and nothing more need be said on this topic. 12. Basing his defence on the statement recorded u/s 342 of the Code of Criminal Procedure, the learned advocate dwelt on the arguments to the effect that Rs. 300 was admittedly due as penalty on the material date. We observe, however, from the judgment of the trial court that there was a good deal of discussion as to the date from which the daily penalty was to he calculated. We find no necessity, for the purposes of the present case, for construing the contract, subsequent correspondence and so on. We observe, however, from the judgment of the trial court that there was a good deal of discussion as to the date from which the daily penalty was to he calculated. We find no necessity, for the purposes of the present case, for construing the contract, subsequent correspondence and so on. Suffice it to say that there was considerable debate as to the amount due as penalty and we are not prepared to take it for granted, as the learned advocate would have us do, that the sum of Rs. 300 was admittedly due as penalty. 13. Mr. K.P. Khaitan opened his argument for the Crown by drawing our attention to Section 4 of the Prevention of Corruption Act (II of 1947). Section 4 is here reproduced, less the proviso which is not material for the present case: Where in any trial of an offence punishable u/s 161 or Section 165 of the Indian Penal Code, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate: 14. He referred to the observations in the judgment of the trial court to the effect that the accused would have discharged his burden on accounting for the money and further to the effect that the burden on the accused existed to the extent of establishing either his innocence as to motive or creating such a doubt as would entitle him to the finding that the prosecution had not been able to establish the charge beyond reasonable doubt. 'Mr. Khaitan submitted that the trial court had misconstrued the Act and that the burden of proof was on the accused without qualification. In our opinion, it is sufficient for the purposes of the present case to state that a plain reading of the section does not support the learned advocate. 'Mr. Khaitan submitted that the trial court had misconstrued the Act and that the burden of proof was on the accused without qualification. In our opinion, it is sufficient for the purposes of the present case to state that a plain reading of the section does not support the learned advocate. We are satisfied that the section contemplates, firstly, that the prosecution has to prove that an accused person has accepted or obtained gratification and that then and only then does the presumption arise that he accepted it for corrupt motive. The point at which the presumption arises is after proof of acceptance as such. The burden of proving acceptance as such is on the prosecution and according to the ordinary law, beyond reasonable doubt. The burden of displacing the presumption is then and only then, on the defence and we are satisfied that that burden is the ordinary burden on the defence in a criminal case, that is, of raising a reasonable doubt. Authorities were placed before us on the question of the burden, but it will suffice to quote two only, namely, two recent decisions of two Division Benches of this Court. One is Chang Chung Ching v. Emperor ILR (1945) 1 Cal. 610 where the presumption arose under Ordinance XXXIII of 1943. It was there held: when the accused make on attempt to rebut the presumption, the question (whether his possession was unlawful) must be determined by reference to the law in force in India, outside the Ordinance which does not itself make any possession unlawful which was not so before. 15. It is true that this decision does not bear directly on the burden of proof, but the principle involved is the same as in the present case. The other decision is Ashiruddin Ahmed v. King (1948) 53 C.W.N. 237 and is on the topic of the burden of proving the presumption u/s 84 of the Indian Penal Code. In that case, it was held that the jury should have been directed that the standard of proof required from the accused was not the standard of proof required from the prosecution. In that case, it was held that the jury should have been directed that the standard of proof required from the accused was not the standard of proof required from the prosecution. Thus, for the purposes of the present case, we shall have to investigate first whether acceptance as such is affirmatively proved beyond reasonable doubt and only, if and when acceptance is proved, will it become incumbent upon us to consider whether the Appellant has succeeded in displacing the statutory presumption. 16. Mr. Khaitan drew our attention to certain circumstances on which he asked us to base an inference that the accused took the money with dishonest intention. He referred to the fact that the money was admittedly recovered from the money-bag or purse of the Appellant which the Appellant himself took out of his pocket. We shall refer to that circumstance later. He also placed before us the evidence to the effect that when the envelope in which the money had been contained was found from the drawer of the Appellant's table, the accused at once threw it into the waste paper basket. In reply, Mr. Basu submitted that there was nothing sinister in this circumstance. The envelope was a plain envelope of an ordinary description and without any mark and he submitted that there was nothing to suggest that the finding of the envelope in the drawer should have caused the accused to react in any manner indicating that he was desirous of making away with evidence. 17. Having summarised and commented on the arguments, we proceed to consider the question whether the acceptance of money as such has been proved by the prosecution beyond reasonable doubt. As we have said, the magistrate, who was deputed to witness the transaction, has not, in fact, witnessed it. So, we are thrown back on the evidence of the witness varma, which, as we have said, we are not prepared to consider as entirely disinterested and we are to place in opposition to this evidence the statement contained in Ex. 3. All that the magistrate proves is that the Appellant produced the money from his purse and this is not contested. It is necessary, however, to refer to other parts of the evidence of the magistrate. 3. All that the magistrate proves is that the Appellant produced the money from his purse and this is not contested. It is necessary, however, to refer to other parts of the evidence of the magistrate. He states that he recorded the statement in the absence of the police officer and in cross-examination he states as follows: I cannot exactly say now when B.C. Datta came. He came after the find. The accused was saying this after the find. I do not remember B.C. Datta (P.W. 4) stopping him saying that he might take his defence in court. The accused was not stopped in saying anything. 18. The evidence of Varma, P.W. 3, is to the effect that on the morning of the occurrence the Appellant demanded Rs. 300 to be paid to him that day and that the witness thereafter saw a, police officer of the Special Branch and filed a complaint; that at about 2 p.m. the witness Varma met a magistrate and certain police officers and was given certain notes of the value of Rs. 300. He continues as follows: Witness entered the office of the Lands and Hirings. Having talked with Sj. R.N. Mitra he went inside the office room of P.K. Ghosh accused. There he paid the accused Rs. 300 as demanded by him. The magistrate and the police officers were then just outside accused's room. The accused accepted the money with the envelope and kept it in the right hand side drawer of his table. Accused called in R.N. Mitra after receiving the money and asked him to accompany witness to Cossipore M.E.S. office and also gave him this letter with his order (Ex. 4 identified). This letter is signed by an employee of Jagadish Timber and Co. (Ex. 4 identified). Witness came out of the room with R.N. Mitra and found the police officers and the magistrate waiting outside. He gave the signal by scratching the head and whispered that the money has been kept by accused into the right hand side drawer of his table. The police and the magistrate rushed into the room of the accused. Witness went to Cossipore accompanied by Sj. R.N. Mitra. 19. He gave the signal by scratching the head and whispered that the money has been kept by accused into the right hand side drawer of his table. The police and the magistrate rushed into the room of the accused. Witness went to Cossipore accompanied by Sj. R.N. Mitra. 19. It is clear from the evidence of this witness that, as long as the witness was in the room, the money was in the right hand side drawer of the table and that the police officers and the magistrate must have gone into the room within a very short time, probably a matter of a few seconds, after the witness left the room. According to the witness it was in this short space of time that the money was taken from the envelope, the envelope was replaced in the drawer and the money was placed in the purse of the Appellant and the purse placed in the Appellant's pocket. 20. We contrast the evidence of the witness with the statement in Ex. 3 reproduced above. Here, the material part is that Varma left the room after leaving the envelope with the money in the drawer and left as the Appellant called him back. The latter part is consistent with the evidence of Varma to the effect that the police party, as we may fairly call them, came into the room within a very short time after the departure of the witness Varma. In our view, the statement admittedly made by the Appellant very soon after the incident is at least as likely to be true as the statement in court approximately one year later. Thus, in our view, the accused is entitled to have the statement, Ex. 3, taken as the true statement in preference to the statement recorded u/s 342 of the Code of Criminal Procedure. 21. Taking this statement, it accounts for everything in the prosecution evidence except the fact that the money was recovered not from the drawer of the Appellant's table but from his purse. Mr. Khaitan, very properly, in our opinion, dwelt on this circumstance and we acknowledge that this circumstance has caused us considerable difficulty in dealing with the case. Apart from this circumstance, we have to choose between the word of Varma and the word of the accused. Mr. Khaitan, very properly, in our opinion, dwelt on this circumstance and we acknowledge that this circumstance has caused us considerable difficulty in dealing with the case. Apart from this circumstance, we have to choose between the word of Varma and the word of the accused. We have stated that we are not prepared to rely without qualification on the word of Varma and the position is that we have one man's word against another and that, apart from the feature that the money was admittedly recovered from the person of the Appellant, there is nothing to indicate that we ought to accept the statement of Varma in preference to the statement of the Appellant. It is a legitimate criticism of the defence case that Ex. 3 gives no explanation of the money having been found on the person of the Appellant. We are, however, somewhat oppressed by the possibility that the accused may have desired to make a statement on this matter soon after the concurrence and may have been prevented. It is true that the police witness B.G. Datta, P.W. 4, was not cross-examined directly on the point. He states: I may have talked with the accused. I probably enquired of his residential address. I do not remember to have asked him anything about the case. 22. We appreciate the delicacy of the position of a cross-examining advocate in a matter of this kind. At the same time, it is the case that the suggestion has not been put to this witness that he prevented the Appellant from making a statement at about e time of the occurrence. We have already referred to the cross-examination of the magistrate, P.W. 1. He states: I do not remember B.C. Datta stopping him saying that he might take his defence in Court. 23. In our view, this is a matter on which the magistrate could and should have said one way or the other. We are not satisfied with his statement that he "does not remember". It is true that the statement was made on December 29, 1948, but the facts were recalled to the mind of the magistrate not long before, namely, on November 5, 1948, when he was examined in chief. The magistrate did not give evidence as to the transaction itself and did give evidence as to the behaviour of the accused after the transaction. The magistrate did not give evidence as to the transaction itself and did give evidence as to the behaviour of the accused after the transaction. It seems to us reasonably probable that, after having his statement recorded, it may well have occurred to the accused that he did not account for the place where the money was found. The accused may well have wished to make such a statement at that stage and we are not satisfied that he was not prevented from making the statement by the police officer. It is unfortunate that the defence subsequently taken by the accused has prevented this aspect from being further developed, but, on the position we have taken, it must accrue to the benefit of the accused that there is, in our opinion, a reasonable possibility that he may have desired to make a statement on this crucial matter and may have been prevented. We are not prepared to assume that there was no explanation available soon after the statement was recorded and it follows that the matter of the finding of the money on the person of the accused cannot be regarded as convincing proof that he received it with a dishonest intention in opposition to his own statement that it was, to use a colloquial expression, planted upon him. On this state of the evidence, we are not satisfied beyond reasonable doubt that the taking of the money as gratification has been brought home to the accused. 24. It only remains to add that the principle we have followed in dealing with the evidence in the present case is in accordance with that followed by the Federal Court in Huntley v. King-Emperor (1944) F.C.R. 262, 279. That case was decided under Ordinance 29 of 1943, but Section 9 of that Ordinance, which deals with the burden of proof, exactly corresponds with the provisions of Act II of 1947. In Huntley's case, after considering the evidence in some detail, their Lordships quoted: In coming to this conclusion we have not been unmindful of the special rule of evidence enacted in Section 9(2) of the Ordinance, but it has in our judgment not been proved that the Appellant accepted any gratification for himself. 25. The result is that the appeal is allowed. The conviction and sentence are set aside and the Appellant will be discharged from his bail bond. 25. The result is that the appeal is allowed. The conviction and sentence are set aside and the Appellant will be discharged from his bail bond. The fine, if paid, will be refunded.