JUDGMENT R.C. Lahoti, J.- 1. The accused/appellant has been held guilty for an offence punishable under section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act, 1947, and sentenced to rigorous imprisonment for one year by the Special Judge, Morena. The charge against the accused/ appellant was that on 2-7-1981 at Sabalgarh, being a public servant as Patwari of Ward No. 27, Tehsil Sabalgarh, he obtained a sum of Rs. 500/- from one Maniram Dhakad other than legal remuneration by corrupt or illegal means. 2. In the year 1980, Maniram Dhakad (P.W. 1) agreed to purchase two parcels of land from one Chironjilal, a caste fellow. Chironjilal in his turn had purchased the two parcels of land under two registered sale-deeds. One sale-deed Was by Bhoopsingh Thakur dated 18-5-79 and for a consideration of Rs. 4,500/-. The other sale-deed was by Devendrasingh, real brother of Bhoopsingh dated 12-1-1978 and for a consideration of Rs. 9,000/-. Both the sale deeds recited receipt of considerations prior to the execution and registration of the sale-deeds. In other words, the consideration was not paid at the time of registration and in the presence of Registrar of Deeds. 3. The prosecution case was that Chironjilal could not execute the deed of sale in favour of Maniram Dhakad because mutation in revenue papers in favour of Chironjilal was not effected in accordance with the sale-deeds. Maniram, therefore, moved an application for mutation in favour of Chironjilal. The application along with two sale-deeds was handed over to Arjunlal, the accused/appellant. The accused occupying the office of Patwari avoided effecting the mutation and for the purpose of mutating the name of Chironjilal, he asked for a gratification of Rs. 1,000/-, of which Rs. 500/- were to be paid before and the remaining Rs. 500/- were to be paid after the mutation. As Maniram was not agreeable, he approached the vigilance Office at Gwalior and submitted a written complaint, Ex. P/1, on 1-7-81. 4. The Vigilance Inspector H. P. Gupta asked Maniram to meet him on 2-7-81 at P.W.D. Rest House, Sabalgarh. A Trap party consisting of H.P. Gupta. Shri Pastor, Dy. Collector, two Constables etc. reached Sabalgarh, where Maniram met them as prefixed. Five currency notes of one hundred rupee each were provided by Maniram, the numbers whereof were noted down and they were treated with phenolphthalein powder. A Trap party consisting of H.P. Gupta. Shri Pastor, Dy. Collector, two Constables etc. reached Sabalgarh, where Maniram met them as prefixed. Five currency notes of one hundred rupee each were provided by Maniram, the numbers whereof were noted down and they were treated with phenolphthalein powder. Maniram accompanied by Adiram, a Panch witness, went to the accused and handed over the currency notes. The accused accepted the five currency notes and kept them in his pocket. On signal, the trap party rushed and surrounded the accused, caught-hold of his hands. The hands of the accused and there - after his shirt pocket in which notes were kept were dipped into the sodium carbonate solution which turned pink conforming to the presence of phenolphthalein powder. Search of the house of the accused was taken where from mutation application and the sale deeds were recovered and seized. 5. On completion of usual investigation, routine chemical analysis etc., sanction contemplated by section 6 of the Prevention of Corruption Act was secured. A challan was filed leading to the trial and ultimate conviction of the accused/appellant, as stated herein-above. 6. The accused, though denied his guilt, did not deny the prosecution case in its entirety. He admitted that an amount of Rs. 500/- was given by Maniram to him. He admitted seizure of the five currency notes of a denomination of rupees hundred each from his possession He took a plea that Devendrasingh, the vendor of Chironjilal, complained that an amount of Rs.1,000/- was yet to be received by him out of the consideration and would not agree for mutation unless the amount was paid to him. According to the accused, Rs. 500/- were paid by Maniram to him for the purpose of being paid to Devendrasingh and this amount was not any gratification for him muchless an illegal one. The defence was suggested by the accused to the very first witness and also stated in his examination under section 313 Cr.P.C. What is more, soon after being trapped, on 2-7-81 itself the accused submitted an application in writing to the Vigilance Inspector H.P. Gupta stating his version of the incident. This application has been brought on record and marked Ex. D/l. 7. At the trial, Maniram Dhakad (P.W. 1) proved to be an inconvenient witness to the prosecution. He stuck to the entire story, as detailed earlier except on one point. This application has been brought on record and marked Ex. D/l. 7. At the trial, Maniram Dhakad (P.W. 1) proved to be an inconvenient witness to the prosecution. He stuck to the entire story, as detailed earlier except on one point. In the examination-in-chief itself he stated that the accused had told him that Devendrasingh and Bhoopsingh were asking for the balance consideration of Rs.1,000/- and were not agreeable to the mutation unless the amount was paid to them. He further stated that as Chironjilal did not confirm to any consideration having remained unpaid, he formed an impression that the amount of Rs. 1,000/- was being asked by the Patwari as an illegal gratification. Probably this led the Public Prosecutor in declaring the witness hostile at the end of his chief examination and seeking leave to put questions in the nature of cross-examination. The witness submitted having put up the complaint, Ex. P/1, to the Vigilance Department, but denied that he was telling a lie in order to save the accused. The fact remains that in the entire statement of Maniram (P.W. 1) there is not a single word to suggest that the accused had any time made a demand of any gratification or that the amount was parted with by him by way of illegal gratification to the Patwari. The contents of the complaint, Ex. P/1, cannot constitute a substantive evidence and the only use which could be made about was to confront its maker by putting the inconsistent portions to him and thereby impeaching his credit. 8. Adiram, admittedly brother in law of Maniram and witness to the passing of money from Maniram to the accused, was not examined in the Court for the reasons best known to the prosecution. Had he been examined, the exact words which may have accompanied the passing of money from Maniram to the accused, spoken by either party to the transaction, would have been known so as to infer intention of the accused behind his accepting the amount. Truthfulness or otherwise of the plea taken by the accused could also have been best judged. Ravindra Pastor (P.W. 3), Dy. Collector and H.P. Gupta (P.W. 4) Vigilance Inspector, were at a distance, reaching the accused only on a signal, cannot naturally be expected to depose to anything that transpired between Maniram and the accused. 9. Truthfulness or otherwise of the plea taken by the accused could also have been best judged. Ravindra Pastor (P.W. 3), Dy. Collector and H.P. Gupta (P.W. 4) Vigilance Inspector, were at a distance, reaching the accused only on a signal, cannot naturally be expected to depose to anything that transpired between Maniram and the accused. 9. The prosecution did not also examine Chironjilal and Devendrasingh though both of these were listed as prosecution witnesses and were available. The only other witness examined by the prosecution was Bhoopsingh who stated that nothing was due from the consideration for the sale deed executed by him in favour of Chironjilal. However, in cross-examination, he admitted that Devendrasingh, his brother, was the real person who looked after the agriculture while Bhoopsingh was in service. He also admitted that on the date of his statement in the Court, Devendrasingh was present in the Court. This assigns an additional importance to the non-examination of Devendrasingh. 10. The crux of the case would be the determination of the nature of the transaction in passing of Rs. 500/- from Maniram (P.W. 1) to Arjunlal, the accused. Section 5 (1) (d) and 5 (2) of the Prevention of Corruption Act 1947, reads as under : "5. Criminal misconduct in discharge of official duty - (1) A public Servant is said to commit the offence of Criminal misconduct- (a) to (c)............... etc. etc. (d) If he, by corrupt or illegal means or by otherwise abusing his position as a public servant, contains for himself or for any other person any valuable thing or pecuniary advantage; (or) (e) ........etc......._etc. (2) Any public servant who commits criminal misconduct, shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine; Provided that the Court may, for any special reasons recorded in writing, imposes a sentence of imprisonment of less than one year." (3) ... ....etc. etc...... ......... A bare look at the abovesaid provision indicates that receipt of money by a public servant must be by corrupt or illegal means or by otherwise abusing his position as a public servant. ....etc. etc...... ......... A bare look at the abovesaid provision indicates that receipt of money by a public servant must be by corrupt or illegal means or by otherwise abusing his position as a public servant. In M. Narayanan v. State of Kerela AIR 1963 SC 1116 , making a review of the earlier decisions of the Apex Court, their Lordships said ;- "The justaposition of the word 'otherwise' with the words "corrupt or illegal means", and the dishonestly implicit in the word "abuse" indicate the necessity for a dishonest intention on the part of the public servant to bring him within the meaning of the clause." The view was reiterated in State of Gujarat v. Manshankar Prabhashmlkar Dwivedi AIR 1973 SC 330 and again in S.P. Bhatnagar v. State of Maharastnra AIR 1979 SC 826 In S. P. Bhatnagar's case, their Lordships said; "The abuse of position in order to come within the mischief of S. 5 (1) (d) must necessarily be dishonest.... . .....It is for the prosecution to prove affirmatively that the accused by corrupt or illegal means or by abusing his position obtained any pecuniary advantage for some other person." These authorities of the Apex Court do go to show that the public servant must abuse his position and such abuse must be in the capacity of a public servant; and to be an abuse, there must be dishonesty. A mere act of foolishness or overzealousness would not necessarily be dishonesty and hence would not amount to an abuse. 11. The trial Court itself on appreciating the prosecution evidence drew conclusion vide para 6 of its judgment that it was rendered doubtful that the accused Patwari demanded and received any gratification and benefit of doubt should go to the accused, vide para 7, the trial Court further held that the accused Patwari received the amount of Rs. 500/- from Maniram for payment to the vendor (of the sale-deed in favour of Chironjilal) then he did so by committing fraud. 12. It is difficult to conceive, how the accused could be held guilty of committing a fraud unless it was proved by the prosecution that the amount of Rs. 500/- was meant to be kept by himself on the false pretext that it was intended to be paid to the vendor the case of bribe and its demand having already been negatived. 500/- was meant to be kept by himself on the false pretext that it was intended to be paid to the vendor the case of bribe and its demand having already been negatived. No doubt by virtue of section 4 of the Prevention of Corruption Act, 1947, if an accused person has accepted or obtained or has agreed to accept or attempted to obtain any gratification, it shall be presumed unless the contrary is proved that he did so as a motive or reward such as is mentioned in section 161 I.P.C. The burden lies on the accused in displacing the presumption. However, as held in Tirlokchand Jain v. State of Delhi AIR 1977 SC 66 :- "The degree and the character of the burden of proof which Sec.4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the decree and character or proof which under section 101, Evidence Act rests on the prosecution While the mere plausibility of an explanation given by the accused in his examination under section 342 Cr. P.C. may not be enough, the burden on him to negate the presumption may stand discharged if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour, it is not necessary for him to establish his case beyond a reasonable doubt" It has been further held :- "The sole purpose of the presumption under section 4 (1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under section 5 (1) (2) of the Prevention of Corruption Act and section 161, Penal Code. The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still-born. It has been held in Mansingh v. Delhi Admn. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still-born. It has been held in Mansingh v. Delhi Admn. AIR 1979 SC 1455 :- "It is well settled that in such case the accused is not required to prove his defence by the strict standard of proof of reasonable doubt but it is sufficient if he offers an explanation or defence which is probable and once this is done, the presumption under section 4 stands rebutted." 13. The accused offered an explanation vide application Ex. D/1 soon after accepting the amount of Rs. 500/- and on being trapped, the minute he realised that what he thought to be an innocent transaction was really a part of trap. The reasonableness and plausibility of the plea of the accused gathers strength from the first and the star witness of the prosecution, namely, Maniram (P.W. 1), who stated that the demand of money made by the accused/appellant was for payment to the vendor of Chironjilal. It is worth consideration that the sale deeds, Ex P/6 and P/7 by Devendrasingh and Bhoopsingh are dated 18-5-79 and 12-1-78 respectively Ordinarily an intimation to transfer of title is required to be given within a period of six months as provided by section 109 of the M. P. Land Revenue Code, 1959. Chironjilal the vendor of the two deeds, did not apply for mutation till the year 1980, is a fact that goes to show that all might not have been such as the tender of the two sale deeds apparently indicated. Probably something remained to be done, may be the payment of part consideration, without which the vendors would not agree to mutation. That is why Chironjilal remained waiting. Yet, another important feature of the case is that the prosecution along with its challan papers has filed copies of entries bearing Nos. 107/25-11-80 and 23/3-6-81 from Mutation Register of village Kheda-Kalan, where the land is situated, showing that the intimation relating to the two sales was entered in the mutation Register. According to Part IX of the Mutation Rules. framed under sections 109-110 of M.P. Land Revenue Code, 1959, by the State Government, (Please see pp. 107/25-11-80 and 23/3-6-81 from Mutation Register of village Kheda-Kalan, where the land is situated, showing that the intimation relating to the two sales was entered in the mutation Register. According to Part IX of the Mutation Rules. framed under sections 109-110 of M.P. Land Revenue Code, 1959, by the State Government, (Please see pp. 409 of Dvivedi's Commentary on M.P.L.R. Code, Tenth Edition for the text of the Rules), nothing remained to be •done by the village Patwari because the Rules contemplate passing of an order of mutation by the Tehsildar, and not by the Patwari. This also improbablises the theory that the Patwari may have demanded gratification for effecting mutation, or that Maniram would have agreed to pay money to the Patwari for an act, which was not to be done by him. On the contrary, there appears a ring of truth in the statement of Maniram (P.W. 1), though declared hostile by the prosecution, when be said that the demand of money by the accused was for payment to the vendors of Chironjilal and the denial of Chironjilal created an impression in his mind that the accused was demanding a bribe. 14. The whole controversy would have been set at rest if the prosecution would have examined Chironjilal and Devendrasingh. The approach of the trial Court in saying that these witnesses could have been examined by the accused cannot be much appreciated for it would offend the fundamentals of criminal jurisprudence. In the opinion of this Court, the accused/appellant has succeeded in rebutting the presumption arising under section 4 of the prevention of Corruption Act, 1947, though he did not adduce any positive evidence. In any case, there appears to be a reasonable doubt in the commission of the alleged crime by the accused/appellant and the benefit thereof must be extended to him. May be that the accused/appellant acted in overzealousness manner by over laying and becoming a party to the payment of unpaid consideration to the vendors though it was none of his business to do so. But this unwanted act of the Patwari does not tantamount to any corrupt or illegal act on his part nor an act of dishonesty. Nothing would be dishonest unless there be an intention of causing wrongful gain to one or wrongful loss to another, vide section 24 of the Penal Code. 15. The appeal is allowed. But this unwanted act of the Patwari does not tantamount to any corrupt or illegal act on his part nor an act of dishonesty. Nothing would be dishonest unless there be an intention of causing wrongful gain to one or wrongful loss to another, vide section 24 of the Penal Code. 15. The appeal is allowed. The conviction of the accused/appellant under section 5 (1) (d) read with section 5 (2) of Prevention of Corruption Act, 1947, and the sentence passed thereon is set aside He is acquitted. The accused/appellant is on bail. He need not surrender to his bail bonds, which shall stand discharged. The order as to disposal of the property passed by the trial Court is maintained.