S. K. Kapur, J. ( 1 ) JAI Chander Madan appellant was employed as an Auditor-cum-Civilian Clerk in the Pay andaccounts Office, Rajputana Riflas Regimental Centre, Delhi Cantonment. He has been convicted by the learned Special Judge, Delhi by his judgment dated 6/06/1956, under section 161, Indian Penal Code, andsection 5 (1) (d) read with section 5 (2) of the Prevention of Corruptionact, 1947, and sentenced to undergo rigorous imprisonment for one yearon the first count and rigorous imprisonment for two years and a fineof Rs. 500. 00 on the second count, and in default of payment of fine toundergo further rigorous imprisonment for six months. The prosecutioncase in brief is that Havildar Nawal Singh No. 2914244 (P. W. 1) wastransferred to Delhi on 15/07/1964, as his retirement was due in afew days and his pension papers had to be completed. The final account (Exhibit P. 2) was prepared on 10/08/1964, according to which asum of Rs. 2,341. 30 P were payable to Hav. Nawal Singh. The saidamount was paid on 21/08/1964, vide Exhibit D. W. 3/6, whichis signed by Hav. Nawal Singh (P. W. 1) and countersigned by the Commandant, Rajputana Rifles. In said document the amount is stated to bein "final settlement of account on discharge etc. signed by Hav. Nawalsingh and countersigned by Major P. S. Brar (P. W. 8) wherein Hav. Nawal Singh has acknowledged the payment of Rs. 834. 80 P. only infinal settlement of his pay arrears of pay and all other demands. It appearsthat these receipts were taken before the actual payment after the amountdue had been verified by all concerned, including Hav. Nawal Singhas is the usual practice in Governments Departments. The prosecutioncase proceeds that later on Hav. Nawal Singh realised that a sum ofabout Rs. 115. 00 more was due to him and he, therefore, went to theappellant on 24/08/1964. The appellant agreed to help Hav. Nawal Singh in realisation of the said amount provided he paid himhalf of that money. This demand of the appellant was later reduced tors. 50/ -. Hav. Nawal Singh immediately went and complained thematter to Major P. S. Brar (P. W. 8), who did not believe Hav. Nawalsingh and therefore, required him to meet the appellant againhav. Nawal Singh went to the appellant again on 2 5/08/1964, and the appellant reported his demand of bribe. Hav. 50/ -. Hav. Nawal Singh immediately went and complained thematter to Major P. S. Brar (P. W. 8), who did not believe Hav. Nawalsingh and therefore, required him to meet the appellant againhav. Nawal Singh went to the appellant again on 2 5/08/1964, and the appellant reported his demand of bribe. Hav. Nawal Singh went to Major P. S. Brar on 26/08/1964,complaining about the laid demind by the applicant but Majorp. S. Brar asked him to put in a written complaint whichhe did (Exhibit P. 1 ). On receipt of the said complaint Majorp. S. Brar organised a raid. Since Hav. Nawal Singh did not have themoney. Major Brar provided him with Rs. 50. 00 to be passed on to theappellant in presence of the members of the raiding party. He prepared a memo. . Exhibit P. 12, containing the a numbers of the currencynotes handed over to Hav. Nawal Singh. According to the said documentthe currency notes were handed over at 11. 35 AM The other personainvited by Major P. S. Brar to join the raiding party were Captaink. P. Tomar (P. W. 11) and Jamadar Sri Chand (P. W. 3 ). Both ofthem are named in Exhibit P. 12. The three members of the raidingparty proceeded to the office of the accused. According to Captaintomar, Hav. Nawal Singh went inside the office of the appellant whilethe other two members stayed out. He came out after an hour or soand told the members of the raiding party that the appellant wouldaccept the money after office hours at 5 P. M. According to Hav. Nawal Singh (P. W. 1), however: he did not go Inside the office inpresence of the members of the raiding party because the appellant hadalready told him that he would accept the money later. At the appointed time the appellant came out of his office and Hav. Nawal Singh wentafter him, had some talk which Captain Tomar and Jamadar Sri. Chanddid not hear, and passed on Rs. 50. 00 to the appellant. This passing ofmoney was, however, seen by other members of the raiding party. Assoon as the appellant had the money in his pocket. Captain Tomar andjemadar Sri Chand, P. Ws. , caught hold of the appellant and askedhim why he had accepted the money from Hav. Nawal Singh, but theappellant got nervous. 50. 00 to the appellant. This passing ofmoney was, however, seen by other members of the raiding party. Assoon as the appellant had the money in his pocket. Captain Tomar andjemadar Sri Chand, P. Ws. , caught hold of the appellant and askedhim why he had accepted the money from Hav. Nawal Singh, but theappellant got nervous. He was immediately taken to adjutant A. S. Brar (P. W. 7) who asked appellant to produce the money, which hedid. The appellant explained that the currency notes had been givento him in repayment of the loan taken by Hav. Nawal Singh. It wason 28/08/1964, that a communication was sent to the police (Exhibit P. 10), which is signed by Adjutant A. S. Brar. It is mentioned in the said document- "on being questioned by the Adjutant the Civilian Clerk thenstated that Hav. Nawal Singh had taken a loan of Rs. 50. 00 from himwhich he has returned back to him today. "may mention here that Jamader Sri Chand (P. W. 3) has attributed a particular conduct to the appellant at the time he was producedbefore Adjutant A. S. Brar. The witness stated- "on the first saying the accused did not take out the money,but when he repeated this question twice or thrice then the accusedtook out the G. C. Notes from his pocket ana produced the samebefore the Adjutant. "there is, however, no mention of such conduct either in thedocument, Exhibit P. 10, or in the evidence of Adjutant A. S. Brar (P. W. 7 ). The defence of appellant was that Hav. Nawal Singh wentto him in his office on 2 5/07/1964, and then on 27/07/1964,for completion of his papers. On 13/08/1964, Hav. . Nawal Singhwent to the appellant s house and said that as his dues bad not beenpaid his family was starving and he needed Rs. 50. 00 as loan, which theappellant paid after taking the same from his landlord, Shri Chuni Lal (D W. 4 ). Hav. Nawal Singh is then alleged to have signed a chit,exhibit P. 16. The said chit is in copying pencil and states - "rs. 50/-2914244hav. Nawal S. "according to the appellant, this chit was written and singed by Hav. Nawal Singh in acknowlegement of having recevied the said sum ofrs. 50/-, while Hav. Nawal Singh (P W. 1) denied the execution of thesaid chit and his singatures thoreon. The said chit is in copying pencil and states - "rs. 50/-2914244hav. Nawal S. "according to the appellant, this chit was written and singed by Hav. Nawal Singh in acknowlegement of having recevied the said sum ofrs. 50/-, while Hav. Nawal Singh (P W. 1) denied the execution of thesaid chit and his singatures thoreon. I will deal with this document alittle later. This chit was produced by the prosecution who said thatthey had requisitioned it from the appellant. The prosecution, howeverdid not ask any question from Hav. Nawal Singh about this chit,although in their custody, and left it to the appellant to put it to Hav. Nawal Singh; and when questioned by the appellant s conusel, Hav. Nawal Singh denied his singnatures on the same. Hav. Nawal Singhfarther stated that the chit had never been shown to him by the policetill that day. On the other hand, Shri Avtar Singh, Investigation Officer (P. W. 12), disclosed that he showed the same to Hav. Nawal Singhduring investigation. The defence further is that Major P. S. Brar organised this trap, though the appelleant was not under his administrative control and he had no authority to do so, because he bore a grudgeagainst the appellant on account of rejection of some claim of onehay. Birbal Ram. The defence case is that Major P. S. Brar visitedthe appellant s office on 24/08/1964, in conncetion with the caseof Hav. Birbal Ram and there some bitterness arose on account of theappellant having rejected the claim of Hav. Birbal Ram, when asked,major P. S. Brar stated that he did not remember whether he visitedthe appellant s office on 24/08/1964, but the defence has reliedon certaindocumentary evidence showing that Major. P. S. Brar didvisit the appellant s office on that day. ( 2 ) I am not perpared to believe the statement of Hav. Nawal Singhfor various reasons, such as. . . (1) He states in his examination-in-chief that on 1 1-8-1964 he received the final statement of account and found that sums totallingrs. 115-50 P. were not included there in. If that were so, I donot understand how he signed the various documents mentionedby me above acknowledging the receipt of payment as per Exhibit P. 2 in full and final settlement. If he had noticed thoseomission on 11/08/1964, it is reasonable to assume thathe would not have signed those documents in that manner. 115-50 P. were not included there in. If that were so, I donot understand how he signed the various documents mentionedby me above acknowledging the receipt of payment as per Exhibit P. 2 in full and final settlement. If he had noticed thoseomission on 11/08/1964, it is reasonable to assume thathe would not have signed those documents in that manner. Heis, therefore, obviously not telling the truth when making theabove statement. (2) In his examination-in-chief ha stated that prior to the acutaloccurrence he had never, come in contact with the appellantand did not know him at all. In cross examination he was showngate Passes, Exhibits D. 1 and D. 2 showning that he got thosegate Passes on 25th and 27/07/1964, but still he denied havingever visited the appellant s office on those dates. These two Gatepasses gives the number and name of Hav. Nawal Singh and the timeand date of his visits to the appellatri s office. Shri O. P. Kalra,assistant Accounts Officer and Incharge Pay and Accounts Office,appeared as P. W. 10 and identified the signatures of the personissuing those Gate Passes. The said Shri Kalra further stated thatthe person who issues such Gate Passes maintains a register in whichthe names of all the visitors are entered. He had not brought thatregister on that day because the same had not been summoned fromhim. The prosecution has laid a good deal of emphasis on the nonproduction of the register. I think the prosecution is not justified indoing so because if they were sure of their case there was nothing tostop them from making a request to the court to get the registerproduced. Believing the statement of Shri Kalra, I bold that thesecrate Passes were issued and Hav. Nawal Singh is not telling thetruth when he states that he did not get those passes. His visit tothe appellant s office also stands fully proved from two importantdocuments, namely, the Work Book of the appellant s office (Exhibitd. 6) and the control chart document (Exhibit D. 7 ). The Work Boohshows that the appellant attended to Hav. Naval Singh on 25/07/1964, in the office. There is a note to that effect dated 2 5/07/1964, (Exhibit D 6/a) in the said Book and it is counter-signed bythe Superintendent. There is a similar note with respect to Hav. 6) and the control chart document (Exhibit D. 7 ). The Work Boohshows that the appellant attended to Hav. Naval Singh on 25/07/1964, in the office. There is a note to that effect dated 2 5/07/1964, (Exhibit D 6/a) in the said Book and it is counter-signed bythe Superintendent. There is a similar note with respect to Hav. Nawal Singh being attended to by the appellant on 27/07/1964 (Exhibit D. 6/b) and that is also counter-signed by the Superintendent The control chart Book (Evhibit D. 7) is a book maintained bythe Superintendent and against the name of the appellant entriesexist showing that the appellant attended to Hav. Nawal Singh onthose dates in the office. I am not prepared to belieye that theseentries have been made subsequently to assist the appellant. It isimpossible to accept that all those senior officials would go to the extent of interpolating entries with a view to sheild a corrupt employeeof theirs. The learned Special Judge came to the conclusion that theentries in Exhibit D. 6 and D. 7 were interpolations, but I am unableto endorse his view, particularly when no suggestion seems to havebeen made by the prosecution to the witnesses Mr. Kalra or Mr Gianchand that any of those entries was forged. Shri Gian Chand Shanna,officiating Accountant, appeared as D. W. 6 and interalia stated that"on 25-7-1964 and 27-7-1964 No. 2914244. Havildar Nawal Singhbrought two chits Exhibits D. 1. and D. 2 which bear my initials,chit Exhibit D 2 bear the initials of Mr. Madan (appellant) whose. initials T identify, and sought my permission to fee his accountswhich were maintained by the accused. I say that these two chitswere brought by Nawal Singh Havildar because I verified the contents of the chits from the Pay Book, Exhibit D. W. 2/c, which wasbrought by the man concerned, and on which his photo is affixed. The period for which the man concerned remained in our office isverified by me and I put my initials in token of its correctness on thechit. Exhibit D. 6 is the Work Book maintained by the clerk andduly attested by me. This was maintained by the accused. " In thelater part he again stated: "exhibit D. 7 was maintained by me asoffice Superintendent. I used to make entries in this register regarding the visits of the person with reference to the Work Booh entries. Both the entries relating to D 1. This was maintained by the accused. " In thelater part he again stated: "exhibit D. 7 was maintained by me asoffice Superintendent. I used to make entries in this register regarding the visits of the person with reference to the Work Booh entries. Both the entries relating to D 1. and D. 2 were made by me on page19 of Exhibit D. 7 at Exhibits D 7/a and B respectively. Afterseeing the Work Book Exhibit D. 6 and the Control Chartexhibit D. 7 I can say that Havildar Nawal Singh No. 2914244did not visit our office from 24-8-64 to 26-8-1964 "both daysinclusive. " The witness also acknowledged his initials on the twoentries, Exhibits B. 6/a and B and said that they were put intoken of their correctness. (3) The contradiction between the evidence of Hav. Nawalsingh and Captain Tomar regarding the former s visit in the officeof the appellant when the appellantis alleged to have expressed agreement to accept the money after office hours. According to Hav. Nawalsingh, his first visit during the day was not in the presence of othermembers of the raiding party, while, according to Capain Tomar, hesaw the appellant when he was waiting outside, (4) He denied having executed the chit. Exhibit P. 16, whereason the basis of other evidence and the circumstances I am satisfiedthat he did 80. It appears that to get over the difficulty of nothaving mentioned about this chit in his examination-in-chief thewitness said that he had never seen it before, while, as I have alreadypointed out, the Investigating Officer said that the chit was shown tohav, Nawal Singh during investigation. (5) Having regard to the circumstances of the case it is impossible to accept that the appellant was, in any manner, in a position tohelp Hav. Naval Singh. Shri O. P. Kalra (P. W. 10) has explained indetail as to why the the various items of Rs. 37. 50, Rs. 60. 00, Rs. 9. 00 and Rs. 61. 00 were not included in Part II order on the basis of whichhav. Nawal Singh had to be paid his dues. Documents Exhibits,d. 9, D. 9/a, P. 3, D. 10. P. 4 and D. II show that the items mentioned above had beenrejected. 37. 50, Rs. 60. 00, Rs. 9. 00 and Rs. 61. 00 were not included in Part II order on the basis of whichhav. Nawal Singh had to be paid his dues. Documents Exhibits,d. 9, D. 9/a, P. 3, D. 10. P. 4 and D. II show that the items mentioned above had beenrejected. They have been so rejected and thepayment could be made only on receiving the authorisation from thearmy Department, I do not see how the appellant could have beenof any assistance to Hav. Naval Singh. These documents go a lnogway in convincing me that the appellant could not have promised anyassistance to Hav. Nawal Singh. ( 3 ) THE learned counsel for the prosecution suggested that if thetwo visits of Hav. Nawal Singh to the appellant s office in July, 1964are excluded out of consideration, the story of loan put forth by theappellant would fall to the ground. But. since I am not prepared toexclude the possibility of those visits, there appears to be no merit inthis contention of the prosecution. ( 4 ) I now proceed to deal with the chit. Exhibit P. 16. Normally,if the prosecution had seized that Chit from the appellant I should haveexpected them to put that to Hav. Nawal Singh in his examination-in-chief. Be that as it may, the fact remains that before reiving on thesaid chit I have to come to the conclusion that it is signed by Hav. Naval Singh. If it is so signed, it lends an unsurmountable support tothe defence version. The prosecution did not bother to have the chitexamined by any handwriting expert. The document was of crucialimportance and one would normally expect the prosecution to have itexamined by the Government expert. The. defence, however, examinedshri Vir Kumar Sakhuja (D. W 5) Handwriting and Fingerprint Expertwho opened that the document appeared to bear the signatures ofhav. Nawal Singh and he formed this opinion after comparing theadmitted signatures of Hav. Nawal Singh on Exhibits D. 3, D. 4 and D. 5. In these circumstances it is difficult for me to discard the evidenceof Shri Vir Kumar Sakhuja. Even the visual comprison of the signaturesof Hav. Nawal Singh on Exhibit P. 16 with his admitted signaturesseems to lend a considerable support to the evidence of Shri Vir Kumarsakhuja. Nawal Singh on Exhibits D. 3, D. 4 and D. 5. In these circumstances it is difficult for me to discard the evidenceof Shri Vir Kumar Sakhuja. Even the visual comprison of the signaturesof Hav. Nawal Singh on Exhibit P. 16 with his admitted signaturesseems to lend a considerable support to the evidence of Shri Vir Kumarsakhuja. Ne doubt, there is a slight contradiction between the evidenceof the appellant, who appeared as his own witness, and the evidenceof Shri Chuni Lal, landlord, who paid the money, but that is not sosignificant as to justify discarding of the entire defence version. Havingcome to the conclusion that it is not safe to rely on the evidence ofhav. Nawal Singh, the evidence of Captain Tomar, Major P. S Brar,adjutant A. S. Brar and Jemadar Sri Chand ceases to be of muchassistance to the prosecution. I am not prepared to accept the defencestory that Major P. S. Brar organised the raid because of his allegedgrievance against the appellant. I do not think such senior officialplaced in the position of responsibility, would go to that extent toavenge their grievance, and that too of a very trivial nature. On thepersual of the evidence it appears to me that Hav. Nawal Singh didborrow Rs. 50. 00 from the appellant and that he made a complaint tomajor P. S. Brar because of some grievance that he may have developedagainst the appellant, If Hav. Nawal Singh made a false complaintto Major P. S. Brar, his evidence and the evidence of the members ofthe raiding party would not harm the appellant, because, if Hav, Nawalsingh had to repay that loan, the members of the raiding party wouldnaturally witness the passing of the money, which they did. That wouldthen be quite consistent with the defence version. The members of theraiding party did not pear any conversation between the appellant andhav, Nawal Singh and only saw the passing of the money which wouldbe consistant with the re-payment of the loan. In that view, it mustbe held that the prosecution has failed to establish the charge undersection 5 (1) (d) read with section 5 (2) of the Prevention of Corruptionact, particularly when the rule of evidence laid in section 4 of the saidact does not create any presumption against the accused. In that view, it mustbe held that the prosecution has failed to establish the charge undersection 5 (1) (d) read with section 5 (2) of the Prevention of Corruptionact, particularly when the rule of evidence laid in section 4 of the saidact does not create any presumption against the accused. The learnedcounsel for the parties agrees that the presumption created under section4 of the said Act, even after amendment thereof by Act No. 40 of 1964,is confined only to offences under clauses (a) and (b) of sub-section (1)of section 5 of the Prevention of Curruption Act and does not extendto an offence under clause (d) of section 5 thereof with which theappellant was charged. There remains the conviction under section 161of the Indian Penal Code with respect to which a presumption has beencreated under section 4 of the Prevention of Corruption Act. Thelearned counsel for the appellant submits that where an accused parsonis called upon to rebut a presumption under section 4 of the Preventionof Corruption Act, it is sufficiently rebutted if he succeeds in provinga preponderance of probability. Relying on Harbhajan Singh v. State ofpunjab, the learned couosel says that onus on an accused person shouldbe the same as on a party in civil proceedings, and just as in civil proceedings, the Court trying an issue is competent to make a decision by adopting the test of probabilities,so can a criminal court hold that the plea made by the accused is provedif a preponderance of probability is established by the evidence led byhim. According to the learned counsel, this derision has been appliedby their Lordshipsf the Supreme Court to a case under section 5 (1) (d)of the Prevention of Corruption Act in Banamali Konar v. The State ofbihar (Criminal Appeal No. 210 of 1962) decided on May 3, 1965. Theirlordships approved the following passage in R. v. Carr-Bratat whichwas a case dealing with the English Prevention of Corruptionact, 1916 :- "the burden of proof required is less than that required at thehands of the prosecution in proving the case beyond areasonabledoubt; and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is calledupon to establish. " ( 4 ) THE learned counsel for the State, on the other hand, says thatthe burden on an accused person to rebut the presumption is as heavyas on the prosecution in other case to prove the offence and the accusedmust show beyond all reasonable doubt that the explanation offered byhim is a true one. Ha has relied on Dhanvantrai v. State of Maharashtra. ( 5 ) I have carefully considered the decisions cited at the bar andthose lead me to believe that the onus on an accused person to rebutthe presumption created by section 4 of the Prevention of Corruptionact is not as heavy as on the prosecution to prove in other cases theoffence alleged. In other words, it is the duty of the accused to provethat the explanation offered by him is a true one, but he need not gofurther and prove that it is true beyond any shadow of doubt. Theonus on an accused is like an onus on a party in civil proceedings andthe Court is entitled to hold the explanation proved on a preponderanceof probability established by the evidence led by the accused. In myopinion the discussion of the evidence mentioned above clearly showsthat the accused has proved, on a preponderance of probability established by the evidence led by him and by the prosecution, that hisexplanation about the money being in repayment of the loan is a trueone. Once the evidence of Hav. Nawal Singh is disbelieved and thedocument, Exhibit P. 16, accepted as genuine the only conclusionpossible is, particularly in the light of the other evidence, that theappellant is telling the truth when he says that the money was by wayof return of loan. In these circumstances the appeal is allowed andthe conviction and sentence of the appellant are set aside. The fine. if paid, shall be refunded to the appellant.