JUDGMENT : Acharya, J. - The accused, Appellant in Criminal Appeal No. 144/66, stands convicted u/s 161, Indian Penal Code and sentenced to undergo rigorous imprisonment for two years by the judgment of the Special Judge, Cuttack-Dhenkanal, in Special Case No. 1 of 1965. As the accused was acquitted on benefit of doubt, of the charge u/s 5 of the Prevention of Corruption Act, the State of Orissa preferred Govt. Appeal No. 26 of 1966 against the said order of acquittal. The above Crl Appeal No. 144/66 preferred by the accused, and Govt. Appeal No. 26/66 preferred by the State of Orissa were heard analogously and this judgment would govern both the above two appeals. 2. The salient features of the prosecution case are as follows: The Appellant was appointed as an Amin in the Settlement Department on a monthly pay of Rs. 70/- and D.A. of Rs. 15/-, and he was working in the Nuagan Camp. He was entrusted with the duty of preparation of maps and record-of rights. While working as such he demanded illegal gratification of Rs. 20/- from p.w. 1, Alekh Moharana, for doing his Yadast work. p.w. 1 informed the Vigilance Police Station at Cuttack by his report Ext. 1 which was treated as the F.I.R. in this case. On this, p.w. 24 the Vigilance Inspector with p.w. 29 the Vigilance Circle Inspector, who was authorised by the Vigilance S.P. to investigate into the matter, arranged a trap and proceeded to investigate into the matter. p.w. 1 produced two ten-rupee notes (M.Os. I & II) and six Kabalas in which Yadast work was to be done, before the investigating officers. The numbers of the two ten-rupee currency notes were noted in the preparation report Ext. 2, and the investigating staff with p.w. 1 and a few other witnesses proceeded to the house of Brahmananda Parida (d.w. 1) in village Ballnsa, where the accused with other settlement staff was camping. On reaching the place the investigating staff with some of the witnesses took their stand outside the compound gate of the house of Brahmanands. (d.w. 1), and p.w. 1 went inside the room where the accused was working. On reaching the place the investigating staff with some of the witnesses took their stand outside the compound gate of the house of Brahmanands. (d.w. 1), and p.w. 1 went inside the room where the accused was working. p.w. 1, on being asked by the accused for the money for his work, handed over the two ten-rupee currency notes and the six Kabalas to the accused, who accepted the same and kept the two currency notes in his waist cloth. Just then the police officers with the other witnesses entered the room, and p.w. 29 confronted the accused, who was then making the entries in the Yadast register (Ext. 14) for p.w. 1, about the money paid to him by p.w. 1. The accused immediately denied the payment whereupon his person was searched, and the same two ten-rupee currency notes (M.Os. I and II) were recovered from his wrist cloth, which were seized as per Seizure List Ext. 6. Thereupon the other belongings of the accused at that place were searched, and Rs. 36. 85 ps. and Rs. 846 and odd were recovered respectively from his shirt pocket, and from his box in the said room. The Kabalas of p.w. 1 were also seized. On further investigation it was also found that the accused, as a habit, demanded, and accepted illegal gratification, ranging from Rs. 6/- to Rs. 60/-, from other persons such as p.ws. 2, 3, 6 to 10, 12 to 14, 16, 17 and 19, for doing their work. These payments were received by him during the period of his appointment between 7-3-1964 and 18-6-1964. On the above facts charge-sheet was filed against the accused, and charges both u/s 161, Indian Penal Code and Clause (a) of Sub-section (1) of Section 5 of the Prevention of Corruption Act, 1947, punish able u/s 5 (2) of the said Act were framed against the accused, and he was tried and convicted of the former and acquitted of the latter as stated above. 3. The accused pleaded not guilty to the charges. He examined himself as d.w. 4, and examined there other witnesses in support of his case. A few documents (Exts. A to C series) were also filed to support his case. His plea in defence to the charge u/s 161, Indian Penal Code in short was that he did not demand or accept Rs. He examined himself as d.w. 4, and examined there other witnesses in support of his case. A few documents (Exts. A to C series) were also filed to support his case. His plea in defence to the charge u/s 161, Indian Penal Code in short was that he did not demand or accept Rs. 20/- from p.w. 1 as illegal gratification, but p.w. 1 gave him that amount to be handed over to d.w. 1 Brahmananda Parida. In his deposition in Court, he explained his above plea, by stating that he received this money in good faith from p.w. 1 as he requested him to hand over the same to d.w. 1 from whom p.w. 1, as stated by him, had taken this amount. With regard to the charge u/s 5(1)(a) of the Prevention of Corruption Act, he denied to have demanded and/or accepted any such money from any person whatsoever. Regarding the money which was found in his pocket and in his box, his explanation was that, he had sold his lands and had kept the sale proceeds so received with him. In his deposition in Court he stated that the said amount of money represented his pay, arrear bill amount, the sale proceeds of his lands and money belonging to the co-workers mess. In his examination u/s 342, Code of Criminal Procedure and also as a defence witness he stated that as he could not oblige p.w. 1 and the other witnesses in their Yadast work, he had troubles with them, and they being thus ill-disposed towards him foisted this false case against him. 4. I will first deal with the charge against the accused u/s 161, Indian Penal Code on which he stands convicted. Mr. Behura, the learned Counsel for the accused, at first contended that the presumption which arose against the accused u/s 4 of the Prevention of Corruption Act could not dispel the presumption of innocence in favour of the accused, and as such it could not be said that the offence of bribery should be held to be established on the mere proof of the fact that some money which was not the legal remuneration was received by the accused, without further proof that the money was accepted for corrupt purposes. It was also contended that to dispel the burden placed on the Appellant u/s 4 of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act), all that he was to do was to offer a probable explanation, which he did by his deposition on oath supported by the evidence of d.w. 1. In support of his above contentions he cited the view of Panigrahi J. on this point in The State Vs. Minaketan Patnaik with which Narasimham J. expressed his disagreement. 5. It is needless for me now to discuss the two contrary views expressed in the said case as the questions involved are no more res integra. This branch of law is now wen settled in the Supreme Court decisions in The State of Madras Vs. A. Vaidyanatha Iyer C.I. Emden Vs. State of Uttar Pradesh Dhanvantrai Balwantrai Desai v. State of Maharashtra 1967 S.C.D. 193 v. V.D. Jhangan Vs. State of Uttar Pradesh and Sailendranath Bose v. The State of Bihar 1969 S.C.D. 546. In the above noted Jhingan's case 5, their Lordships referred to their previous decision in the above Dhanvantrai Balwantrai's Desai's case., wherein it was held: ...that in order to raise the presumption under this Sub-section what the prosecution has to prove is that the accused person has received "gratification other then legal remuneration' and when it is shown that he has received a certain sum of money which was not a legal remuneration, then the condition prescribed by this section is satisfied and the presumption thereunder must be raised. They also quoted a paragraph from the decision in the above mentioned O.I. Emden's eases, a few lines of which are quoted below: The plain meaning of this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused without anything more. If that is the true position in respect of the construction of this part of Section 4(1) it would be unreasonable to hold that the word "gratification' in the same clause imports the necessity to prove not only the payment of money but the incriminating character of the said payment. The above views were accepted as the settled law in the latest decision on the point in Sailendranath Bose's case. The law on the point is thus well settled and as such this contention of Mr. The above views were accepted as the settled law in the latest decision on the point in Sailendranath Bose's case. The law on the point is thus well settled and as such this contention of Mr. Behura is of no avail. 6. With regard to the other contention regarding the discharge of the burden placed on the Appellant u/s 4 of the Act as mentioned above, I need quote a few lines from para 9 of the judgment in Sailendranath Bose's case 6: This branch of the law is also well settled by the decisions of this Court... But u/s 4(1) the Court is bound to draw the presumption mentioned therein. The presumption in question will hold good unless the accused proves the contrary. In other words, the burden of proving the contrary is squarely placed on the accused. A fact is said to be proved when after considering the matters before it the Court either believes it to exist or considers its existence was so probable that a prudent man ought under the circumstance of the particular case to act upon the supposition that it exists. The proof given by the accused must satisfy the aforementioned conditions. If it does not satisfy those conditions then he cannot be said to have proved the contrary. In Dhanvantrai Balwantrai Desai v. State of Maharashtra 1967 S.C.D. 193, this Court considered the nature of the proof required to he given by the accused u/s 4(1). Therein this Court held that the burden resting on he accused person in such a case would not be as light as that placed on him u/s 114 of the Evidence Act and the same cannot be held to be discharged merely by reason of the fact that the explanation offered by him is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in that provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. The same view was taken by this Court in V.D. Jhangan Vs. State of Uttar Pradesh. The words 'unless the contrary is proved' which occur in that provision make it clear that the presumption has to be rebutted by proof and not by a bare explanation which is merely plausible. The same view was taken by this Court in V.D. Jhangan Vs. State of Uttar Pradesh. But at the same time it was mentioned in that decision that the burden resting on the accused will be satisfied if the accused person establishes his case by a preponderance of probability and it is not necessary for him to establish his case by the test of proof beyond reasonable doubt. In other words, the nature of the burden placed on him is not the same as that placed on prosecution which must not, only prove its case but prove it beyond reasonable doubt. That settles the law on this question. 7. In the instant case the accused admitted to have received the money from p.w. 1 at the time of the occurrence, which was seized from his possession. On the plea of the accused this amount was undoubtedly for something other then his legal remuneration. The trial Court after an elaborate and well reasoned discussion of the evidence on record discarded the explanation offered by the Appellant. D.w. 1, who according to the accused, was to get the money which was banded over to the accused by p.w. 1, does not support the plea of the accused. He does not know anything about any such payment. The following few lines from the examination-in-chief of d.w. 1 completely falsified the plea of the accused: I was demanding return of the advance from him (p.w. 1). I had so demanded 4 or 8 days before the occurrence in the village. I had asked him to return the money at my house. Alekh (p.w. 1) returned the money to me 8 days after the occurrence relating to the accused. In between this time I demanded and the time he made the payment I had not asked him anythingI do not (sic) anything further about his payment. The last few lines quoted above are most damaging for the accused. Moreover, none of the p.ws. stated that at the time the money was seized from the accused, he put forward the story which he took as his plea in defence. The last few lines quoted above are most damaging for the accused. Moreover, none of the p.ws. stated that at the time the money was seized from the accused, he put forward the story which he took as his plea in defence. He did not state his story in full in his 342 examination, but developed it later in his deposition in Court. According to the accused himself he previously had reported against p.w. 1 for encroachment of Anabadi land; and that the p.ws. had combined against him as he did not do their work as they desired. If p.w. 1 and the other p.ws. were hostile and ill-disposed towards the accused, it was not expected of the accused to have accepted the money from p.w. 1 for the purpose as alleged by him. I also do not understand as to why, on the face of such strained feeling, p.w. 1 should place reliance on the accused for the alleged repayment of his dues to d.w. 1, when d.w. 1 was admittedly present in his house very close to that place. Thus the plea put forward by the accused does not at all inspire confidence and cannot be relied upon. Hence it must be held that the accused could not discharge the burden placed on him by law. 8. In the context of the above admission of the accused, the well settled law on the contentions raised by Mr. Behura, and my findings above it is not necessary for me here to dilate on the prosecution evidence with reference to the charge u/s 161, Indian Penal Code and the contentions of Mr. Behura on trap cases and decoy witnesses. The learned Special Judge in his judgment discussed and dealt with an the aspects of the prosecution evidence in detail to reach his conclusion "that the prosecution has proved beyond doubt that the accused received Rs. 20/- from p.w. 1 as illegal gratification for doing his Yadast work and as such he is guilty for the offence u/s 161, Indian Penal Code'. I approve of his analysis of evidence in this connection and the reasonings for his above finding. 20/- from p.w. 1 as illegal gratification for doing his Yadast work and as such he is guilty for the offence u/s 161, Indian Penal Code'. I approve of his analysis of evidence in this connection and the reasonings for his above finding. As u/s 4(1) of the Act the Court is bound to draw the presumption mentioned therein, and the presumption in question will hold unless the accused proves the contrary, and because of my above finding that the accused could not discharge the said burden placed on him by law, and agreeing also with the above findings of the Court below, I hold that the prosecution has been able to prove the charge u/s 161, Indian Penal Code against the accused person, and as such his conviction under the said section is well founded and cannot be interfered with. 9. It was contended by Mr. Behura that the trial was vitiated as the investigation of this case by Inspector Tripathi (p.w. 29) was without any legal authority and as such illegal. He elucidated his contention by stating that Inspector Tripathi being a police officer below the rank of a D.S.P. could not have investigated into the matter as he was not duly authorised by a First Class Magistrate duly appointed on that behalf. It was also contended that the notification empowering the S.P., Vigilance, as a Magistrate 1st Class for this purpose was without jurisdiction and was not in accordance with the provisions of Section 14(1) of the Code of Criminal Procedure, inasmuch as no such notification appointing the said S.P. was published in the official Gazette, nor any proof that the said appointment was made in consultation with the High Court of Judicature at Cuttack, was produced by the prosecution. It was also contended that the authorisation of the investigation by the A.D.M. (Judicial) dated 26-6-1964 being subsequent to the investigation could not validate the investigation already conducted prior to the said date. It was also contended that the authorisation of the investigation by the A.D.M. (Judicial) dated 26-6-1964 being subsequent to the investigation could not validate the investigation already conducted prior to the said date. In reply to the above contentions it was argued on behalf of the State that the appointment of the S.P. Vigilance, as the First Class Magistrate was done in accordance with the provisions of law and the said S.P. authorised the investigation which was subsequently ratified to by the A.D.M. (Judicial), and thus the Inspector (p.w. 29) was duly authorised to take up the investigation, and as such there was nothing illegal or irregular in the matter. It was also contended that the matter of prejudice being a question of fact it was not shown as to how the accused was prejudiced, if at all. The above point was also taken up before the trial Judge who on a proper consideration of the various documents and notifications produced before him, and on a very thorough and proper discussion of the above materials and the law on the subject, came to a categorical finding that the notification investing the Vigilance S.P. as the Magistrate 1st Class for the required purpose was lawful, the Vigilance S.P. authorising p.w. 29 to take up the investigation was legal, and as such there was no illegality in the investigation of the case and no prejudice either was shown to have been caused to the accused. I have given consideration to the following materials which actuated his above findings: (i) the confidential letter No. 6388 dated 8-12-1962 from the Registrar of the High Court of Orissa to the Additional Secretary to the Government of Orissa, Political and Services Department, Vigilance Branch, intimating that the Hon'ble Court bad no objection to the investment of magisterial power to the D.I.G. and S.P., Vigilance for the limited purpose of sanctioning investigation u/s 5(a) of the Prevention of Corruption Act; (ii) the Government notification under Sub-section (1) of Section 14, Code of Criminal Procedure, subsequent to the above letter from the High Court, conferring the S.P., Vigilance, the power of a Magistrate 1st Class for the purpose of ordering investigation u/s 5(a) of the Prevention of Corruption Act within the limits of the whole of the State of Orissa; (iii) the evidence of p.ws. 24 and 25 to the effect that the recorded F. I. R. and the written report was put up before the S.P. Vigilance, and he on 18-6-1964 having applied his mind to the facts of the case authorised p.w. 29 to investigate into the case; Ext. 1/1 and Ext. 13 being the relevant documents in this connection. Thus it is clear that the S.P., Vigilance, Cuttack who was properly invested with the powers of a Magistrate 1st Class for the required purpose, could legally authorise p.w. 29 by Ext. 1/1 and Ext. 13 to register a case and to investigate into the case, and in accordance with which the investigation proceeded. The A.D.M. (J) also, within a few days thereof, similarly authorised p.w. 29 to investigate into the matter (Ext. 16). That being so, there was no illegality or irregularity in the investigation of this case. Hence this contention raised by Mr. Behura is also not tenable. 10. To prove the second charge against the accused under Clause (a) of Sub-section (1) of Section 5 of the Act, punishable u/s 5(2) of the Act of which he was acquitted, and on which Govt. Appeal No. 26/66 was filed, prosecution depended on two items of evidence: (i) the evidence of several witnesses from whom the accused accepted illegal gratification at different times ; and (ii) recovery of Re. 886.47 ps. from the possession of the accused at the place and time when the accused was found accepting Rs. 20/- from p.w. 1, which was the subject-matter of the first charge already discussed above. 11. The prosecution relied on the evidence of p.ws. 2, 3, 6, 7, 8, 9, 10, 12, 13, 14, 16, 17 and 19 to prove its case regarding habitual acceptance of illegal gratification at different times from different persons by the accused. The accused denied to have accepted any such gratification from any person whatsoever. The learned Special Judge on a consideration of the evidence of the above witnesses found that there were discrepancies on material particulars regarding the fact of their payment of money to the accused as alleged by them. These witnesses came out for the first time with their individual allegations in their deposition before the Court below. The two Inspectors of Vigilance, p.ws. These witnesses came out for the first time with their individual allegations in their deposition before the Court below. The two Inspectors of Vigilance, p.ws. 24 and 29 who conducted the investigation into the case did not state as to when and where and at what stage they received the information about the alleged payments made by these witnesses to the accused. These witnesses never reported or complained on any previous occasion of any such demand by the accused or the alleged payments made to him, to any of the Settlement Officers or to any person in authority, of even to the police. The above mentioned witnesses stated that for getting their Yadast work done by the accused they had to pay him some money separately as demanded by him. The witnesses of course corroborated the alleged payments of one another excepting the payments made by p.ws. 14, 17 and 19. The total amount said to have been paid by these 13 p.ws. came to Rs. 275/- only. Regarding the month and time of payment there is material discrepancy in the evidence of the prosecution witnesses. p.w. 29 in his cross-examination stated that none of the above mentioned witnesses could say the date and time of their alleged payments, even with reference to Raja. Most of them could not state the denomination of currency notes with which they made the alleged payments to the accused. These witnesses mostly were related to each other. Considering all the above aspects of the prosecution evidence in this respect, and the circumstances under which they same to light I am inclined to support the finding of the learned Special Judge that this part of the prosecution case could not he established against the accused person beyond all reasonable doubt. 12. Regarding the recovery of Rs. 380. 47. ps. from the shirt and from the trunk belonging to the accused, seized under Ext (sic) Mr. Behura had two fold comments. It was at first commented that this item of evidence could not be taken into consideration as there was no mention of the same in the charge framed against the accused. This contention is not tenable. 380. 47. ps. from the shirt and from the trunk belonging to the accused, seized under Ext (sic) Mr. Behura had two fold comments. It was at first commented that this item of evidence could not be taken into consideration as there was no mention of the same in the charge framed against the accused. This contention is not tenable. It is true that there is no mention about the above mentioned item in the charge framed against the accused, and as such, if at all, it is at best an omission in the charge, and would come under Clause (b) of Section 537, Code of Criminal Procedure. Unless therefore it is specifically shown that the said omission has occasioned a failure of justice, it cannot be said that a finding based on a consideration of such an item of evidence is illegal. The accused, as is evident from the facts of the case, all through had sufficient notice that this item in the prosecution evidence was intended to be utilised against him, and the defence could not successfully show that above omission occasioned a failure of justice in any way. That being so, a finding on a consideration of the above item will not amount to an illegality. 13. The accused admitted the possession of this amount and the recovery of the same from him; but, he denied to have received any money from the p.ws. mentioned above. He explained the possession of this money by stating and adducing evidence to the effect that he sold his lands by registered Kabalas under Ext. B-series for Rs. 1, 600/-, and had kept a part of the sale proceeds with him for his daughter's marriage. D.w. 2 proved the above registered sale deeds Ext. B-series. Prosecution led evidence to the Affect that from December, 1963 up to 18-6-1964 the accused received Rs. 165/- (Ext. 8) towards his pay, and Rs. 18. 45 p. (p.ws. 29) by money-order towards his dues for serving at Puri. The accused, on oath, stated that the marriage of his daughter was performed in 1965, and that by 1964 negotiations for the said marriage were going on. D.w. 2 corroborated the above. The accused deposed on oath to support the explanation offered by him regarding the possession of the above mentioned amount. The accused, on oath, stated that the marriage of his daughter was performed in 1965, and that by 1964 negotiations for the said marriage were going on. D.w. 2 corroborated the above. The accused deposed on oath to support the explanation offered by him regarding the possession of the above mentioned amount. Over and above this he led evidence, both oral and documentary, to prove that he had reasons to possess the aforesaid amount of money at the time it was seized from his possession. The accused having no house of his own, he having disposed of his own, as stated by d.w. 2, it is not very unlikely that he had kept a part of the sale proceeds of his land along with the arrears of pay etc. which he received 88 legal remuneration, in his personal custody, and carried the same with him wherever he moved. From all this I find that the accused was able to make out a plausible case in support of his explanation, and as such due weight has to be attached to the defence set out by him in this respect. Thus his explanation for the possession of the above amount being a plausible one, the prosecution case that this amount represented the illegal gratification which the accused realised from the p.ws. and other persons for doing their Yadast work, becomes doubtful. 14. Hence, on the discussions made above on both the items of evidence, I am inclined to agree with the finding of the learned Special Judge that the prosecution has not been able to prove the second charge preferred against the accused beyond all reasonable doubt. That being so, the charge u/s 5 of the Prevention of Corruption Act fails and the order of acquittal passed by the learned Special Judge with reference to this charge cannot be interfered with. 15. In the result, therefore, on my findings that the charge u/s 161, Indian Penal Code against the accused has been prove beyond all reasonable doubt, the conviction of the accused on that account is upheld. As regards the sentence passed by the learned Special Judge against the accused on the above mentioned charge, I feel that ends of justice will be served if the sentence is reduced to rigorous imprisonment for one year instead of two years. As regards the sentence passed by the learned Special Judge against the accused on the above mentioned charge, I feel that ends of justice will be served if the sentence is reduced to rigorous imprisonment for one year instead of two years. While, therefore, maintaining the conviction of the accused-Appellant u/s 161, Indian Penal Code I would sentence him to undergo rigorous imprisonment for one year, and hereby direct him to immediately surrender to his bail bond and to serve the sentence imposed on him. With this modification in the sentence Criminal Appeal No. 144/6 is hereby dismissed. 16. In view of my findings above on the second charge u/s 5 of the Prevention of Corruption Act, the order of acquittal passed by the learned Special Judge is maintained, and Government Appeal No. 26/66 is accordingly dismissed. Final Result : Dismissed