JUDGMENT V.R. Nevaskar, J. 1. Appellant Prakash Narayan, a Sub-Inspector Excise was prosecuted for an offence under Section 161 I.P.C. before the Special Judge Indore who found him guilty and sentenced him to rigorous imprisonment for six months. 2. The appeal is directed against the said order of conviction. 3. The case against the appellant is that as a Sub-Inspector of Excise he had investigated and put up a case against one Nurgulkhan for his being in possession of contraband opium in the court of Railway Magistrate Indore. This case had been fixed for hearing on 11-3-57. On that day it is said, the appellant demanded from the said Nurgulkhan a sum of Rs. 100 hush-money for weakening the case against him, Nurgulkhan thereupon approached the Deputy Superintendent of Police (Anticorruption Branch) with a complaint about this. A trap was accordingly decided upon to be laid. Nurgulkhan was sent with marked five ten-rupee notes with the object of passing them on to the appellant in pursuance of his demand which he had made earlier. Nurgulkhan went to the court of Railway Magistrate where the appellant was working. He then called the appellant. When the appellant approached Nurgulkhan the latter gave him the marked five ten-rupee notes. The appellant pocketed them and went into an urinal close by. On his return from the urinal he was stopped by the Anti-corruption Deputy Superintendent Police Shri Dubey and was asked to produce the five ten-rupee notes which he had received from Nurgulkhan. The appellant produced the said notes from the pocket of his trousers. 4. The appellant did not dispute the fact that he was given five ten-rupee notes by Nurgulkhan. His defence, which he had disclosed even at the time when the Anti-corruption Deputy Superintendent Police had asked him to produce the money given to him by the decoy was that he was given that money by Nurgulkhan for its being deposited in court in connection with the criminal case against him in pursuance of the courts' order. 5. The learned Special Judge considered the circumstances regarding find of marked five ten rupee notes in the pocket of appellant's trousers as sufficient one for drawing a presumption under section 4 (1) of the Prevention of Corruption Act. 5. The learned Special Judge considered the circumstances regarding find of marked five ten rupee notes in the pocket of appellant's trousers as sufficient one for drawing a presumption under section 4 (1) of the Prevention of Corruption Act. He relied upon the observations of the Supreme Court in A.I.R. 1958, SC 61 State of Madras vs. Vaidyananath Iyer and held that the burden lay upon the accused to prove positively that he had accepted Rs. 50 from Nurgulkhan for their being deposited in Court. He considered this version to be unnatural because according to him "normally a Government Official and particularly an officer who investigates a crime and prosecutes the accused in court is not at all excepted to have any contract or connection whatsoever with him". He considered the defence, regarding the appellant having taken Rs. 50 from Nurgulkhan for their being deposited in court to do him a good turn in return for securing an advantage from him by obtaining information about other smugglers, not to be reasonably true. Accordingly to the learned Judge preponderance of probability was against the accused. He was inclined to believe that the letter Ex. D/2 has been written by Nurgulkhan to the appellant but according to him the letter "instead of benefiting the accused (appellant) showed that the accused was pestering Nurgulkhan and was out to extract advantage from him which he ultimately did by securing Rs. 50 from him." 6. He therefore came to the conclusion that the story of the accused was highly improbable and that the burden cast upon him by section 4 (1) of the Prevention of Corruption Act bad not been discharged by him. He accordingly convicted him under section 161 I.P.C. 7. It is urged in this appeal that the conclusions drawn by the learned Special Judge as regards the unreliability of the defence version are not correct. It was not disputed by the appellant either in his statement or even in appeal that he was given Rs. 50/- by Nurgulkhan in court-compound just before he was questioned by the Anti-corruption Officer. Conflicting versions about the taking of money have been put up one by Nurgulkhan and the other by the accused and it is on the probability as to the truth of either version that the ultimate decision of the case depends. 8. 50/- by Nurgulkhan in court-compound just before he was questioned by the Anti-corruption Officer. Conflicting versions about the taking of money have been put up one by Nurgulkhan and the other by the accused and it is on the probability as to the truth of either version that the ultimate decision of the case depends. 8. There are circumstances which favour either of the version and the matter will have to be judged on the balance of probabilities in right of the principle applicable in such cases regarding burden of proof. 9. Nurgulkhan's version appears to be that the appellant was after him in securing gratification after his investigation for opium smuggling was taken in hand by the appellant. On the date of the incident according to him he demanded a bribe of Rs. 100/- . It appears that by that time the entire prosecution evidence against him was over and his statement was to be recorded. He was previously ordered to bear the costs of the prosecution witnesses who were present on 18-12-1956. These were Ranarayan, Dayaram and Birendrasingh besides the appellant. The total amount of costs which Nurgulkhan was to deposit on the date of the incident i.e. 11-3-1957 was slightly exceeding Rs. 50/- . It is not disputed by the appellant that Nurgulkhan called him outside the court-room nor is it seriously disputed on behalf of the prosecution that the money was handed over to the appellant at a short distance from the court-room with litigants moving near about. Nurgulkhan says that on the arrival of the appellant from the court-room of the Railway Magistrate he said that he had brought the money. Rs. 50/- were then handed over and the appellant then said 'Sab-Kam Thik Ho Jayega.' The appellant then went away with the money to the urinal. Immediately on his coming out of, the urinal the Anti-corruption. Officer Mr. Dubey stopped him, acquainted him with his identity and asked him to produce notes which he had taken. Nurgulkhan's statement about what took place when Mr. Dubey stopped him is that the appellant first denied to have taken money and challenged his right to question him and it was only on his disclosing the identity and the threatening to search his person that the appellant took out the amount from the pocket of his trousers. Nurgulkhan's statement about what took place when Mr. Dubey stopped him is that the appellant first denied to have taken money and challenged his right to question him and it was only on his disclosing the identity and the threatening to search his person that the appellant took out the amount from the pocket of his trousers. To further colour the guilty mind of the appellant Nurgulkhan stated voluntarily that during his trial the appellant had offered him Rs. 2000/- for not giving evidence against him. In his cross-examination he disclosed that when the Appellant took out money from his pocket and handed them over to Mr. Dubey he had stated that Nurgulkhen had given him the amount for depositing them in Court. He further stated that his statement under section 342 of the Criminal Procedure Code was taken on that day before Rs. 50/- were seized from the appellant and that he had also deposited Rs. 40/- towards the expenses of wit nesses in pursuance of court's order before that incident. He was questioned about his prior contact with the appellant in connection with other opium smugglers but he denied the same and also denied his having sent a letter Ex. D/2 and a telegram in the name of Ahmad Nur to the appellant. He asserted that he had in all Rs. 90/- with him on that day Out of that he had deposited Rs. 40/- in court and handed over Rs. 50/- to the appellant in pursuance of the trap, which was arranged. He admitted that he was convicted in that Criminal case for which he had attended the court of Railway Magistrate that day. Anti-corruption Officer Mr. Dubey as well as Panch witness Ramjidas state that when the appellant was asked about his having taken money as a bribe he took out the money and at the time of handing over said pointing to Nurgulkhan that he had given the amount for depositing the same in court. Mr. Dubey further stated that this he did without expressing any unwillingness. Ramjilal further said that at the time when initial Panchnama for marking the notes had taken place, Nurgulkhan had stated that he had to deposit the amount in court and that he had only Rs. 50/- with him which the appellant was demanding. Narayansingh clerk of Mr. Mr. Dubey further stated that this he did without expressing any unwillingness. Ramjilal further said that at the time when initial Panchnama for marking the notes had taken place, Nurgulkhan had stated that he had to deposit the amount in court and that he had only Rs. 50/- with him which the appellant was demanding. Narayansingh clerk of Mr. Shrivastava who defended Nargulkhan in that case stated that money was given at a distance of about 12 paces from the court-room. Mr. Dubey also stated that the case of Nurgulkhan had not been called for hearing upto the time the money was seized and that when Nurgulkhan was Bent be bad no other money with him except Rs. 50/- . 10. Having regard to this evidence the circumstances against the appellant are firstly that he took money from Nurgulkhan who was an accused in a Criminal case against him for possession of contraband opium, which he had investigated and which he was actually conducting. To add to these circumstances there was the statement of Nurgulkhan about prior demand of Rs. 100/- as a bribe and his having given him the amount as a bribe and subsequent assurance by the accused about the favourable outcome of the criminal case against him. The appellant having taken the amount burden lay upon him by reason of section 4 of the Prevention of Corruption Act to establish that he had taken the amount for an innocent purpose. The statement and circumstances called in aid by him for the purpose are firstly that his own statement that he was given the amount for depositing the same in court, secondly that his conduct when he was asked to produce the money which he had taken as a bribe in stating then and there that it had been given to him for its being deposited in court, thirdly that the amount to be deposited for expenses of prosecution witnesses Ramnarayan, Dayaram, Virendra and Prakashnarayan in pursuance of Court's order came to about Rs. 50/- , fourthly that he had prior contacts with Nurgulkhan during the pendency of the case as appeared to be borne out by Ex. D/2 and also as deposed to by the appellant, and fifthly that money was given openly just within twelve paces from the court-room. 11. Now Nurgulkhan tried to suggest in his statement that he had already deposited Rs. D/2 and also as deposed to by the appellant, and fifthly that money was given openly just within twelve paces from the court-room. 11. Now Nurgulkhan tried to suggest in his statement that he had already deposited Rs. 40/- as the amount of expenses which he was required to do under the orders of the criminal court before he gave Rs. 50/- to the appellant and that he had in all Rs. 90/- with him. Evidence of Shri Dubey and Narayansingh however suggested that the amount had not been deposited by then and that Nurgulkhan had stated to Mr. Dubey that he had only Rs. 50- which he had to deposit in court. Nurgulkhan also suggested that his statement under Section 342 Criminal Procedure Code had already been recorded prior to the giving of the amount by him to the appellant. It however appears that Nurgulkhan's case had not been called before the giving of money. It is therefore clear that an attempt was made by Nurgulkhan to make the defence improbable by resorting to untrue statements. It also appears from the learned Judge's finding about Ex. D. 2 that he tried to conceal his prior association with the appellant. Nurgulkhan was convicted later in that case and has filed an appeal against his conviction. After the incident in question all that was done in the case was Nurgulkhan's examination under Section 342 Cr. Procedure Code and arguments, the entire prosecution case being already over. It also appears that on the day on which Nurgulkhan was said to have been in possession of contraband opium, another person was also arrested practically at the same time and placed for a similar offence and had been convicted prior to the date of the incident. Thus in the first place Nurgulkhan cannot be implicitly believed when he deposed about what talk took placement the time of Landing over the amount as he resorted to falsehood improbable and the matter depended mainly upon the natural to make the defence appear probabilities of the defence put forward by the appellant in view of the surrounding four circumstances indicated above. On the one hand it appears to be some what improbable that an Officer of the position of the appellant Would go out of his way in taking money from Nurgulkhari, an accused in the criminal case which the appellant was conducting just to do him a good turn particularly when Nurgulkhan had engaged counsels on his behalf Who could have helped him in the matter. But the four circumstances apart from his statement indicated above can be taken to support the defence. What then are the principles on which I should approach the case? In A.I.R. 1958 SC 61, their Lordships of the Supreme Court discussed the effect of Section 4 of the Prevention of Corruption Act which is in the following terms;-- Where in any trial of an offence punishable under Section 161............ it is proved that an accused person has accepted............any gratification (other than legal remuneration)............ from any person, it shall be presumed unless the contrary is proved that he accepted......... that gratification...............as a motive or reward such as is mentioned in the said Section 161 I.P.C. ........... 12. Their Lordships observed after quoting the section 161 I.P.C.:-- Therefore where if is proved that a gratification has been accepted that the presumption shall at once arise under the Section, it introduces an exception to the general rule as to the burden of prior in criminal cases and shifts the Onus on to the accused. It may here be mentioned that the legislature has chosen to use the Words 'shall presume' and not 'may presume', the former a presumption of law and latter of fact. Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that Act, but Section 4 of the Prevention of Corruption Act is in pari materia, with the Evidence Act, because it deals with a branch of law of evidence e.g. presumptions, and therefore should have the same meaning. 'Shall presume' has been defined in the Evidence Act as follows:- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. 'Shall presume' has been defined in the Evidence Act as follows:- Whenever it is directed by this Act that the Court shall presume a fact, it shall regard such fact as proved unless and until it is disproved. It is a presumption of law and therefore it is obligatory on the Court to raise this presumption in every case brought under Section 4 of the Prevention of Corruption Act because unlike the case of presumption of fact, presumptions of law constitute a branch of jurisprudence. 13. These observations are in my opinion clearly intended to emphasise the proper line of approach having regard to the fact that it is obligatory upon a court to raise a presumption regarding character of motive or reward which an accused person is shown to have accepted. The presumption of law thus created by the Section is, not unlike other presumptions of law, rebuttable, (e.g. the one contained in Section 105 of the Evidence Act). Even where such rebuttable statutory presumptions exist question has often arisen, where after every aspect of evidence is considered in view of the statutory presumption the court is left in doubt as regards the guilt of the accused, what should be the course which ought to be adopted. In Woolmington vs. Director of Public Prosecutions, which was a House of Lords case, Viscount Sankey L.C. observed:-- Just as there is evidence on behalf of the prosecution so there may be evidence on behalf of the prisoner which may cause a doubt as to his guilt. In either case, he is entitled to the benefit of the doubt. But while the prosecution must prove the guilt of the prisoner, there is no such burden laid on the prisoner to prove his innocence and it is sufficient for him to raise a doubt as to his guilt; he is not bound to satisfy the jury of his innocence......... Throughout the web of the English Criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what 1 have already said as to the defence of insanity and subject also to any statutory exception. Throughout the web of the English Criminal law one golden thread is always to be seen, that it is the duty of the prosecution to prove the prisoner's guilt subject to what 1 have already said as to the defence of insanity and subject also to any statutory exception. If at the end of and on the whole of the case, there is reasonable doubt created by the evidence given by either the prosecution or the prisoner, as to whether the prisoner killed the deceased with a malicious intention, the prosecution has not made out the case and the prisoner is entitled to an acquittal. No matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained. 14. The principle of this case was followed in Rex Vs. Carr-Briant (1943) 1 KBD 607. That was a case under the Prevention of Corruption Act in England. The appellant in that case was a director of a firm which on August 23, 1940, entered into a contract for the work to be done with the War Department. Payments in respect of the work done under the contracts were made on the certificate of an engineer named Baldock who was an employee of the War Department, that it has been satisfactorily performed. On Sep ember 5, 1949, the appellant give or lent to Baldock a sum of Rs. 60/- so that Baldock might pay for a motor-car which he had agreed to buy. At the trial it was directed to the (sic) that the appellant had not only to discharge the burden of proof and show that he gave the money without a corrupt motive but had also to do so, beyond reasonable doubt, and, if the jury is left in doubt by the evidence given on behalf of the appellant they must convict him. The jury-men gave a verdict in pursuance of which the appellant was convicted. On a further appeal by him it was held that there was misdirection to the Jury. The jury-men gave a verdict in pursuance of which the appellant was convicted. On a further appeal by him it was held that there was misdirection to the Jury. According to the decision of the appellate court where in any case some matter either by statute or Common law is presumed against an accused person unless contrary is proved, the jury should be directed that it is for them to decide whether the contrary is proved. It was also held that the burden of proof on the accused is has than that required at the hands of the prosecution in proving the case beyond reasonable doubt and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called on the establish. 15. The principle of Wooimington vs. Director of Public Prosecutions 1935, AC 462, was approved and followed in A.L.R. 1937 Ran 83 (FB) Emperor Vs. U. Damapala, as also in A.I.R. 1941 All 402 (Full Bench) Parbhoo Vs. Emperor. In A.I.R. 1944 FC 66, H.T. Huntley Vs. Emperor. Their Lordships observed at page 68(b):-- A charge under Section 161, Penal Code, is one which is easily and may often be lightly made, but is in the very nature of things difficult to establish, as direct evidence must in most cases be meagre and of a tainted nature. These considerations cannot however be suffered to relieve the prosecution of any part of the burden which rests upon it to establish the charge beyond reasonable doubt. If after every thing that can legitimately be considered has been given its due weight, room still exists for taking the view that however strong the suspicion raised against the accused every reasonable possibility of innocence has not been excluded, he is entitled to an acquittal. 16. Their Lordships in the aforesaid Supreme Court case while emphasising the approach in a criminal case under Section 161 I.P.C. in view of Section 4 of the Prevention of Corruption Act do not appear to me to have laid down a principle different from what was indicated in the aforesaid observations of the House of Lords or the Federal Court. 17. 17. In view of these decisions the principles which have to be borne in mind in cases such as the one in hand are :-- (1) Where it is proved that a gratification has been accepted, the presumption at once arises under section, 4 of the Prevention of Corruption, Act which shifts the onus; upon the accused to prove that such acceptance was not for the purpose mentioned in Section 161 I.P.C. (2) In spite of the above the burden in a Criminal case, resting upon the prosecution to prove the guilt of the accused, in a way never shifts and there is no burden upon the accused to prove his innocence beyond reasonable doubt. Where therefore after everything that can legitimately be considered has been given due weight, reasonable doubt is created as to this guilt, he ought to be acquitted. 18. Bearing these principles in mind what is to be seen is whether the accused has been rightly held guilty. 19. Now it appears to me that Nurgulkhan gave false colour to his version by alleging possession of Rs. 90, also alleging deposit of Rs. 40 and hearing of the case before the payment of Rs. 50 to the appellant as a bribe. He also falsely denied his prior contacts with the appellant in connection with the assistance he had promised in tracing out other smugglers. What he said to the appellant at the time of giving money is known to himself and the accused. There is no other evidence. The appellant took the amount openly without any attempts at secrecy and when questioned at once produced the amount with the explanation which suggested an innocent purpose. Even here Nurgulkhan tried to give false colour to his story, by alleging refusal on the part of the appellant to produce money and questioning by him of the right of Mr. Dubey to ask him about it although the latter said no such thing. The amount paid, moreover, practically was the same as Nurgulkhan was required to pay for the expenses of the prosecution witnesses who were present on 18-12-1956. There were contacts between the appellant and Nurgulkhan for other purposes relating to tracing out other opium smugglers. Dubey to ask him about it although the latter said no such thing. The amount paid, moreover, practically was the same as Nurgulkhan was required to pay for the expenses of the prosecution witnesses who were present on 18-12-1956. There were contacts between the appellant and Nurgulkhan for other purposes relating to tracing out other opium smugglers. There was no evidence to support the fact that the appellant restored bun if or money from the commencement of the proceedings, Nor was there any evidence to support the fact that a demand for bribe had been made earlier. 20. In face of all these facts after taking into account the presumption under Section 4 of the Prevention of Corruption Act and also after giving every piece of evidence both for and against the accused due weight, a doubt is still created in my mind, which consider to be reasonable, as regards his guilt. The benefit of this doubt must go to the appellant. The conviction of the appellant therefore does not deserve to stand and he ought to be acquitted. 21. The appeal is therefore accepted and the conviction of the accused as well as sentence awarded to him are set aside and he is acquitted. He shall be set at liberty at once. Fine if paid shall be refunded to him. If he be on bail he need not surrender to his bail bond which shall stand cancelled. Appeal allowed.