JUDGMENT 1. - This is a State Appeal under S. 417, Cr. P. C. (1898) against the judgment dated 22.5.73 of the Special Judge, Rajasthan, Jaipur (For A. C. D. Cases) acquitting the accused-respondent in a Special Criminal case No. 2/73, under Sections 161 I.P.C and S. 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the P. C. Act). 2. The charge against the accused-respondent was that he received a sum of Rs. 100/- from Udhamal (PW1) as gratification (other than legal remuneration) on 12.11.70 as a motive or reward for showing favour to Udhamal in exercise of his official functions. The case of the Prosecution on which this charge is based, in brief is as follows : 3. Udhamal (PWI) was a contractor of country liquor in the year 1970-71 for Malakhera, District Alwar, and the accused-respondent was the District Excise Officer at the relevant time. It was with the help of the accused-respondent that Udhamal could secure the contract for country liquor for the year 1970-71 fora sum of Rs. 34,000/-. The accused had taken a sum of Rs. 1,000/- on two occasions at the rate of Rs. 500/-for finalising the contract in favour of Udhamal (PW), and further claimed a sum of Rs. 100/- per month as bribe money during the period of the contract. Udhamal (PWI) submitted an application (Ex. P. 1) to the Deputy Inspector-General of Police, Jaipur, on September 17, 1970 for laying a trap against the accused-respondent. Ex. P. 1 was sent to Ram Singh, Dy. S. P. (P. W. 5). A trap was arranged by said Shri Ram Singh against the accused, but the accused left on tour, and, therefore, the trap could not be laid. Udhamal then approached Mr. C. M. Parlecha (PWI), the then Additional S. P., A. C. D., Bharatpur on October 13, 1970 and submitted an application (Ex. P. 6) who also arranged a trap, but the same could not be carried out on 15th and 16th October, 1970, and the amount of Rs. 200/-produced by Udhamal to Parlecha for laying a trap was returned to him on October 16, 1970. P. 6) who also arranged a trap, but the same could not be carried out on 15th and 16th October, 1970, and the amount of Rs. 200/-produced by Udhamal to Parlecha for laying a trap was returned to him on October 16, 1970. Again, an attempt was made on November 4, 1970 to lay trap, but it could not be carried out, because it was given out to Parelecha by (PW 1) - Udhamal that the accused-respondent had left towards Shahpura, as his appearance was fixed in some case. Udhamal (PW 1) again contacted Mr. Parlecha on 11. 10. 70 on telephone, and trap was arranged against the accused on November 12, 1970. The raid party consisting of the decoy Udhamal (PW 1), the two motbirs Jagdish (PW 2), Pancharam (PW 3), C. M. Parlecha (PW 8) and others went to the office of the District Excise Officer, Alwar, 10 currency notes of Rs 10/- each (tainted money) on which phenolphthalein powder was dusted and Parlecha placed his signature were handed over to the accused-respondent by Udhamal (PW 1) in the office of the District Excise Officer at about 2.30 p. m. Thereafter, a green signal was given and the other members of the trap party headed by Parlecha entered the room of the accused respondent and the ten currency notes of the value of Rs. 10/- (tainted money) were recovered from the pant pocket of the accused-respondent. Ex. P.8, memo of recovery of notes was prepared. The test of wash of the hands as well as the pent pocket in sodium bicarbonate solution was conducted at the spot and the solution turned pink. Thereafter, after obtaining the sanction to prosecute the accused, a charge sheet was filed against him. 4. The plea of the accused was that he did not accept any bribe from Udhamal (PW 1). He admitted the recovery of the notes from his pent pocket, but came out with a case that on November 12, 1970 Udhmal (PW 1) came to him and wanted to purchase liquor of the value of Rs. 100/-and gave out that the bank was closed and the next day was holiday. Udhamal placed Rs. 100/- on his table as the price of liquor but he asked him to bring an application, so that orders could be passed for issue of liquor of the value of Rs. 100/- to the Ware House. 100/-and gave out that the bank was closed and the next day was holiday. Udhamal placed Rs. 100/- on his table as the price of liquor but he asked him to bring an application, so that orders could be passed for issue of liquor of the value of Rs. 100/- to the Ware House. Leaving the notes on the table, Udhamal went out and Mr. Parlecha and the other members of the raid party entered the room and he produced the currency notes to Mr. Parlecha from his pocket. 5. On behalf of the prosecution, the statements of as many as 8 witnesses were recorded, and then the statement of the accused was recorded, who took a plea, as stated above. The learned Special Judge acquitted the accused of the charges levelled against him. 6. We have heard the learned P. P. and the learned Advocate for the accused and have been taken through the record of the case. The main submission of the learned P.P. is that the accused having accepted the recovery of the tainted money from his pocket, a statutory presumption under S 4(1) of the P. C. Act should be raised that the accused accepted the gratification of Rs. 100/- as a motive or reward, such as is mentioned in S. 161, IPC without consideration or for a consideration which he knows to be inadequate. The learned Advocate for the accused-respondent, on the other hand, contends that before a statutory presumption u/s 4 (1) of the P.C. Act can be raised, it is necessary for the prosecution to prove that the accused has accepted or obtained, or has agreed to accept or obtain for himself any gratification (other then legal remuneration). The prosecution has failed to prove these important ingredients of the offence of S. 161, IPC, and, therefore, in the facts and circumstances of this case, no presumption can be drawn u/s 4 (1) of the P. C Act It is further submitted that the presumption is rebuttable and the accused has been able to rebut the presumption even if it arises, though he submits it does not arise, and the accused-respondent has been rightly acquitted by the trial court. The last submission of the learned Advocate or the accused-respondent is that it is an appeal against acquittal and the learned Special Judge has given weighty and convincing reasons for acquitting the accused, and it cannot be said that the reasons given by the learned Special Judge are unsound. Therefore, according to the learned advocate for the accused-respondent, it is not a fit case in which this court should interfere in the order of acquittal recorded by the trial court. 7. Before we enter into the discussion of the evidence as to whether the prosecution has proved that the accused accepted any gratification, and as such a presumption u/s 4 ft. of the P. C Act arises, we will like to observe here that the powers of this Court in an appeal from an order of acquittal to reassess the evidence and reach its own conclusions are as extensive as in appeal against an order of conviction, yet as a rule of prudence this Court should always give proper weight and considerations to such matters, as (1) the views of the trial judge as to the credibility of the witnesses , (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial : (3) the right of the accused to the benefit of any doubt, (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. Where two reasonable conclusions can be drawn on the evidence on record, this court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the court below. In other words, if the main grounds on which the court below has passed its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, this Court should not disturb the acquittal (Vide G. B. Patel v. State of Maharashtra) 8. We will keep in mind the above principles enunciated by their lordships of the Supreme Court. 9. In the instant case, decoy Udhamal (PW 1) has not supported the prosecution and as such the public prosecutor was permitted by the learned Special Judge to put such questions to Udhamal (PW1) which might be patin cross-examination by adverse party. We will keep in mind the above principles enunciated by their lordships of the Supreme Court. 9. In the instant case, decoy Udhamal (PW 1) has not supported the prosecution and as such the public prosecutor was permitted by the learned Special Judge to put such questions to Udhamal (PW1) which might be patin cross-examination by adverse party. The two witnesses Jagdish (PW2) and Pancharam (PW3) did not actually see the passing of the notes by Udhamal to the accused-respondent in his office. Before we deal as to whether acceptance of gratification by the accused-respondent in this case from Udhamal is proved or not, we will like to deal with the legal side of the case as to when a presumption under S. 4 (1) of the P. C. Act can arise in a case under S. 161, IPC. So far as the other charge against the accused under S. 5 (1) (d) read with S. 5 (2) of the P. C. Act is concerned we may straight away say that S. 4 (1) of the P.C. Act does no permit raising of a presumption for an offence under S. 5 (1) (d) read with S. 5 (2) of the P. C. Act. It will be useful to refer to the authorities which have been cited before us by the learned counsel for the parties. In Rampershad v. State, (1955 RLW 51) it has been held that S. 4(1) of the P. C. Act does not dispense with the necessity to prove on the part of the prosecution that gratification or some valuable thing as such proceeded from the complainant to the accused, and that burden still rests on the prosecution. The moment the prosecution proves that the accused accepted or agreed to accept any gratification, presumption will be raised against him that he received it as a motive or regard for exercising any official favour or dis-favour, and if the accused wants to suggest to the contrary, it will be for him to establish that was not the case. A similar view has been taken in Tejsingh v. State. (1979 Cri.L.J. (NOC) 107 (Raj.)) In Surajmal Appellant v. The State (Delhi Administration), Respondent. A similar view has been taken in Tejsingh v. State. (1979 Cri.L.J. (NOC) 107 (Raj.)) In Surajmal Appellant v. The State (Delhi Administration), Respondent. ( AIR 1979 SC 1408 ) It has been held that mere recovery of money divorced from the circumstances under which it is said is not sufficient to convict the accused when the substantive evidence in the case is not. reliable. In that case, the accused denied the recovery of the money and his plea was that he has been falsely implicated. 10. In C. I. Emden, Appellant v. State of U. P., respondent, ( AIR 1960 SC 548 ) it has been A observed as follows : "What the prosecution has to prove before asking the court to raise a presumption against an accused person is that the accused person has received "gratification other than legal remuneration," if it is done as in the present case it has been done, that the accused received the stated amount and that the said amount was not legal remuneration than the condition prescribed by the section as specified." Dealing with the presumption in an offence under S. 161. IPC, the court further observed : "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 S. 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." In State of Assam v. Krishna Rao. (1973 SCC (Cr.) 222)) a reference was made to state of Madras v. A. Vadia Natha Iyer. ( AIR 1958 SC 61 ) in which it has been held that where it is proved that a gratification has been accepted, the presumption under S. 4 of the P. C.. Act shall at once arise. It is a presumption of law and it is obligatory on the court to raise it in every case brought under S. 4. An argument was advanced that presumption under S. 4(1) P.C. Act could not be raised merely on proof of acceptances of money, but it had further to be proved that the money was accepted as a bribe. It is a presumption of law and it is obligatory on the court to raise it in every case brought under S. 4. An argument was advanced that presumption under S. 4(1) P.C. Act could not be raised merely on proof of acceptances of money, but it had further to be proved that the money was accepted as a bribe. This contention was repelled. In Dhanwant Rai Balwant Rai Desai v. State of Maharashtra ( AIR 1964 SC 575 ) Emden's case was relied upon. In Mahesh Prasad Gupta v. State of Rajasthan contention was raised on behalf of the counsel appearing for the accused that presumption under S. 4 (i) of the P. C. Act can be raised only if the prosecution establishes in the first instance that the amount was paid otherwise than as legal 'remuneration. It was held as follows:- "This contention is contrary to the clear terms of S. 4 (1) and would render elusory the presumption arising under the section. To cast on the prosecution the burden of proving that the amount was accepted by the accused otherwise than by way of legal remuneration is to ask the prosecution to prove that the amount was paid and accepted by way of bribe. If this be the true nature of the burden resting on the prosecution, no presumption at all need be raised, because apart from the presumption, the prosecution would have to prove that the money was accepted by the accused and that it was accepted as a bribe. It is plain that if the prosecution prove the acceptance of the amount by the accused and the amount does not represent legal remuneration in any form or of any kind, the accused must establish that the amount was not accepted by him as a motive or reward such as is mentioned in S. 151, I. P. C." In Sitaram v. State of Rajasthan ( AIR 1975 SC 1432 ) it has been held in para 10 (p. 1436) as follows:- "The main ingredients of the charge under S. 161 of the Penal Code with reference to the facts of this case are these : (1) That the accused was a public servant. (2) That he must be shown to have obtained from any person any gratification. (2) That he must be shown to have obtained from any person any gratification. (3) The gratification should be other than legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show in the exercise of his official functions favour or disfavour to the person. When the first two ingredients are proved by evidence then a rebuttable presumption arises in respect of the third ingredient. In absence of the proof of the first two facts, the presumption does not arise. On more recovery of certain money from the person of an accused without the proof of its payment by or on behalf of some person to whom official favour was to be shown the presumption cannot arise." 11. From a resume of the above authorities, and from a perusal of S. 161, IPC and S. 4 (1) of the P. C. Act, in our opinion all that is required of the prosecution to prove in a trial for an offence under S. 161, IPC against the accused is that the accused who was a public servant accepted or obtained or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification. Once the prosecution so establishes, a presumption under S. 4 (1) of the P. C. Act that the accused did so as a motive or reward, such as is mentioned in S. 161, IPC without consideration or for consideration which he knows to be inadequate. This presumption is rebuttable and the accused can prove it to the contrary. 12. We will now turn to the facts of the instant case to see as to whether the acceptance of Rs. 100/- as gratification other than legal remuneration has been proved in this case or not so far as the fact that the accused was a public servant at the relevant time, the same is not disputed and can hardly be disputed. Under the explanation to S. 161, IPC, the words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government, which he serves, to accept. Under the explanation to S. 161, IPC, the words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government, which he serves, to accept. The word "gratification" as used in S. 4 (I) P. C. Act in its primary dictionary meaning means "satisfaction" and the acceptance should be with a consenting mind and can be proved by evidence of payment or can even be inferred if recovery is preceded by a demand. In the instant case, there is no direct evidence of demand of Rs. 100/- p. m. as bribe money from Udhamal (PW 1) by the accused. Ex. P. 1 and P. 6 are the two complaints made to the D. I. G. and the Additional S P. Anti Corruption respectively by Udhamal (PW 1). But, they cannot be read as a substantive piece of evidence and there is no other evidence as observed by the learned special Judge that the accused demanded Rs. 100/- by way of brible from the accused. The accused has not disputed that the sum of Rs. 100/-bearing initials of Parlecha (PW 8) was recovered from him. His case is that Udhamal (PWI) placed the notes on his table, as he required country liquor of the value of Rs. 100/-. He asked Udhamal to bring an application and Udhamal went away leaving the money on the table. Because the meeting of the Inspectors was to take place, he kept the money in his pocket to be returned to decoy Udhamal (PW 1), as and when he returns with the application for securing his orders on it for issue of liquor of the value of Rs. 100/-. The plea of the accused that the notes were placed on the table by Udhamal (PW 1) finds support from the contents or the memo of recovery of notes (Ex. P. 6), where in it is clearly mentioned that the accused gave out that Udhamal had left the notes on his table and he picked them and kept in his pocket. Even Jagdish (PW 2), Pancharam (PW 3) and Parlecha (PW8 admit that the accused came out with the plea that Udhamal had kept the notes on his table. P. 6), where in it is clearly mentioned that the accused gave out that Udhamal had left the notes on his table and he picked them and kept in his pocket. Even Jagdish (PW 2), Pancharam (PW 3) and Parlecha (PW8 admit that the accused came out with the plea that Udhamal had kept the notes on his table. As already observed above, Udhamal (PW 1) did not support the prosecution and does not state that the money was handed over by him to the accused, but came out with a case that he himself had left it on the table and had gone out to bring an application for securing orders of the accused for issue of country liquor of the value of Rs. 100/-, The presence of Ashok Kumar is admitted by the prosecution witnesses, and Ashok Kumar (PW 3) has stated that Udhamal had left the money on the table and did not pay the amount to the accused. It is also stated by Ashok Kumar that the meeting of the Inspectors was to take place. Therefore, if Udhamal left the money on the table and the accused kept in his pocket, because the meeting was to take place, and because Udhamal had gone out to bring an application for securing his orders to issue liquor of the value of Rs. 100/-, it cannot be said that the accused accepted the amount of Rs. 100/- as gratification Mere recovery of money divorced from circumstances cannot conclusively lead to the inference and such to prove a fact that the accused accepted the money and here it will be useful to refer to Surajmal's case (supra) where their lordships observed as follows:- "Mr. Lalit appearing for the State vehemently submitted that whatever be the nature of the evidence in the case. It is an established fact that money had been recovered from the bush-shirt of the appellant and that by itself is sufficient for the conviction of the accused. In our opinion, the mere recovery of money divorced from the circumstances under it is paid is not sufficient to convict the accused when the substantive evidence is the case is not reliable." 13. In our opinion, the mere recovery of money divorced from the circumstances under it is paid is not sufficient to convict the accused when the substantive evidence is the case is not reliable." 13. In the instant case, though the recovery is not disputed, but the circumstances about the recovery as borne out from the record are that previous three attempts to lay a trap did not succeed Udhamal (PW 1) has not supported the prosecution about the demand by or payment of the qualification to the accused. Jagdish (PW2)and Pancharam (PW 3) did not see the passing of the notes, nor heard any talk between Udhamal and the accused. The accused immediately came out with the plea that Udhamal had left the notes on the table and he had not accepted the same as bribe. Money could not be deposited in the bank, as it was 2 or 2.30 p m. The next day was a holiday. The accused could not know as to whether Udhamal had sufficient stock of country liquor or not. The learned Special Judge has interpreted Exs. D. 8 and D. 9 as authorising the District Excise Officer to receive in the interest of revenue, an interpretation, which cannot be said to be perverse. Therefore, the mere recovery of amount under the facts and circumstances of this case cannot be said to go to prove that the accused accepted or obtained the sum of Rs. 100/- as gratification other than legal remuneration. In spite of the statutory presumption under section 4(1) of the P.C. Act, the initial burden continues to be on the prosecution to prove that the accused, who is a public-servant, accepted or obtained for himself gratification, which does not represent legal remuneration in any form or of any kind. Having failed to discharge the initial burden no question of raising a statutory presumption under S. 4 (1) of the P. C. Act arises. 14. The learned Special Judge has observed that Udhamal (PWI), it appears has sided with the accused and has totally gone against the version given by him in complaints Ex. P. 1 and Ex. P. 6, and has also deposed against his previous statement recorded under S. 164, Cr. 14. The learned Special Judge has observed that Udhamal (PWI), it appears has sided with the accused and has totally gone against the version given by him in complaints Ex. P. 1 and Ex. P. 6, and has also deposed against his previous statement recorded under S. 164, Cr. P. C. After going through the record of the case, we are of the opinion that offence under S 211, IPC appears to have been committed in relation to the proceeding before the learned Special Judge, and that it is expedient in the interest of justice that an enquiry should be made into that offence. Therefore, a notice be given to Udhamal (PWI) as to why action should not be taken against him in accordance with law. 15. The result of the above discussion is that we do not find it a fit case to interfere in the judgment of the learned Special Judge, Pajasthan, Jaipur, (for A. C D. Cases). The appeal is, therefore, dismissed. A notice, as stated earlier, be given to Udhamal retnrnable within a period of 30 days. *******