JUDGMENT - SHARAD MANOHAR, J.:---This Appeal arises out of the order of conviction and sentence passed by Special Judge, Solapur, in Special Case No. 3 of 1980 convicting the present Appellant No. 1 (accused No. 1) of offence under section 161 of the Indian Penal Code and as also under section 5(1)(b) read with section 5(2) of the Prevention of Corruption Act, 1947 and sentencing him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 300/- and an order to sentence in default of payment of fine. Appellant No. 2 (accused No. 2) is convicted for offence under section 165-A of the I.P.C. and he is also sentenced to suffer R.I. for one year and to pay a fine of Rs. 300/- together with sentence in default of payment of fine. The prosecution case has been fully stated by the lower Court in paragraphs 2 to 12 of the judgment and, hence, it is unnecessary to recount the various facts which are unfolded by the prosecution case. I will, therefore, state the prosecution case very briefly as follows :- It is useful setting out the who's of the various persons who figure in this case, as accused, as witnesses and as persons who had played some relevant role in the eventuality. 2. The who's who.---Accused No. 1, appellant No. 1 before me, was the Sub-Inspector at the Pandharpur Police Station in the month of July 1979. Accused No. 2 (who is appellant No. 2 before me) was the Police Patil of Village Vale where most of the persons who figure in this case reside. The other persons who figure in this prosecution either as witnesses examined or as persons who have become conspicuous by the fact that they were not examined, are as follows :--- (i) Pandurang Varkhal, P.W. 1. He figures as the complainant in this case. (ii) Madhukar Nivritti Holkar, P.W. 2. He is the brother of the one Hariram. Hariram has not been examined though he appears to have played some significant role in this case which will be pointed out presently. Madhukar, P.W. 2 also claims to have played quite a stellar role in this episode. (iii) Head Constable, Kadam, P.W. 4. He, along with Abdul Aziz, P.W. 5, works at Pandharpur Police Station. (iv) Constable Abdul Aziz P.W. 5. He works at the Police Station. Madhukar, P.W. 2 also claims to have played quite a stellar role in this episode. (iii) Head Constable, Kadam, P.W. 4. He, along with Abdul Aziz, P.W. 5, works at Pandharpur Police Station. (iv) Constable Abdul Aziz P.W. 5. He works at the Police Station. He has been examined as another stellar witness ; but, apparently, he has demonstrated his fond nubby of remaining absent at every crucial occasion. Although P.W. 4 and P.W. 5 claim to be present at the Police Station just at the first crucial occasion dated 18-7-1979 when the abovementioned application. Exhibit 24, was presented by Shivaji, P.W. 1, at the Police Station, neither of them refers to the presence of other. (v) Shivaji Khalge, D.W. 1. He was cited as a prosecution witness, was not examined by the prosecution and was ultimately examined by the defence as the defence witness. He fully supports the defence version and, if the evidence is believed, nothing remains in the prosecution case. (vi) Dagdu Khalge. He is the brother of Shivaji Khalge, D.W. 1. It is on his account if the case of P.W. 1 is to be believed, that the entire saga was set in motion. (vii) Hariram. This witness has not been examined. His brother Madhukar, P.W. 2, has been examined by the prosecution. He is the father of Balabai who is the wife of Dagdu Khalge. The prosecution case is that it is the information given by this witness Hariram to P.W. 1 Pandurang about the report of illicit relation between Pandurang and Balabai that Pandurang was propelled to go to the house of Shivaji, brother of Dagdu, for giving to him a piece of his mind. The non-examination of this witness does give rise to some raising of eye brows and to drawing of some adverse inference. (viii) Balabai. As mentioned above, she is the wife of Dagdu. She figures in this episode, but plays no roll in it. She is rightly not examined. As stated above, she is also the daughter of Hariram Holkar who has played quite an eye-catching role, or rather, an ear-catching role, in this episode, but, still, he is not examined by the prosecution. (ix) Lastly, there is that Gana Kotwal. She figures in this episode, but plays no roll in it. She is rightly not examined. As stated above, she is also the daughter of Hariram Holkar who has played quite an eye-catching role, or rather, an ear-catching role, in this episode, but, still, he is not examined by the prosecution. (ix) Lastly, there is that Gana Kotwal. He is the Kotwal in village Vale, who has allegedly been a witness of some crucial talks and events but, all the same, has not been examined by the prosecution. 3. Prosecution case: Disputed part Undisputed part.---The prosecution case may be as stated here. A large portion of it is not disputed at all. I will give indication of the disputed part and the nature of the dispute. This will narrow down the field of discussion and appreciation of evidence. As stated above, Pandurang, P.W. 1, is the resident of Vale. Hariram Varkhal (They also call him Holkar) is his distant relation. According to the prosecution, some time before 16th July, he met Pandurang and he insinuated to him something against his son in law Dagdu. The insinuation was that Dagdu was spreading a canard that Pandurang was having illicit relation with his (Dagdu's) wife, meaning thereby that he (Dagdu) was maligning Hariram's own daughter. Dagdu also went on saying, insinuated Hariram, that Pandurang should better swap his own wife for that of Dagdu, if he wanted to have illicit relation with Dagdu's wife, Balabai. The prosecution would have us believe that Pandurang naturally took this as a character assassination and hence when, on one evening he was passing by the door of Dagdu, he went inside Dagdu's house for inquiring as to why such canards were being spread by the group. Not Dagdu but Shivaji was present. Pandurang inquired of Shivaji as to why Dagdu was doing such thing. Shivaji told him to meet him on the next date at the Chavadi, which was the place fixed for the tryst, where everything would be verified and sorted out. Accordingly, contends the prosecution. Pandurang and Hariram waited for Shivaji at the Chavadi at the appointed hour. Neither Shivaji nor Dagdu, however, turned up. Shivaji told him to meet him on the next date at the Chavadi, which was the place fixed for the tryst, where everything would be verified and sorted out. Accordingly, contends the prosecution. Pandurang and Hariram waited for Shivaji at the Chavadi at the appointed hour. Neither Shivaji nor Dagdu, however, turned up. Shivaji Khalge, thereafter, gave an application at the Pandharpur Police Station on 18th July, 1979 alleging that Pandurang had gone to his house, completely inebriated, carrying a dagger (Jambiya) in his hand and threatening that he was going to kill Dagdu. The application was taken by H.C. Kadam, P.W. 4, and, while he was reading that application, accused No. 1 came. H.C. Kadam handed over the application to accused No. 1. Accused No. 1 read it and came out of the Police Station with Shivaji and accused No. 2 (police maintain that accused No. 2 was accompanying Shivaji), and, after some time, all of them came inside the Police Station when the application was given by accused No. 1 to Constable Abdul Aziz, P.W. 5, and, at the same time, told Shivaji that he would come to Village Vale for making inquiry in a short while. The remaining case can be gathered fully from the fulsome statement of the same made in paragraph 4 of the lower Court's judgment. In substance, the case in that on 22nd July, 1979, accused No. 1 went to Vale on a motor-bicycle, accompanied by Constable Abdul Aziz, P.W. 5, recorded the statements of the members of the family of Shivaji in relation to the facts stated in the application dated 18th July, 1979 (Exhibit 24). He also called Pandurang P.W. 1 to the police station, abused and scolded him severely, slapped him and kicked him with his feet with his boots on and told him that his head was swollen. Thereafter, when the recording of the statement of the members of Shivaji's family was over, the Police Patil, accused No. 2 stated that the meals were ready. There is no evidence to show the menu of the meals; but it appears that it was tantalizing and mouth-watering enough to persuade even Pandurang, P.W. 1, to accompany accused Nos. 1 and 2 to the feast when he was requested by accused No. 2 to join them for the meals. There is no evidence to show the menu of the meals; but it appears that it was tantalizing and mouth-watering enough to persuade even Pandurang, P.W. 1, to accompany accused Nos. 1 and 2 to the feast when he was requested by accused No. 2 to join them for the meals. In the house of accused No. 2 suggestion was made by accused No. 2 to Pandurang that accused No. 1 was an inconsiderate person and that it was better that P.W. 1 Pandurang settled the matter with him. Pandurang asked him as to what would be the settlement. Accused No. 2 asked him to wait. After the meals were over, all of them returned back to the school where the earlier scene had taken place. There accused No. 2 suggested to accused No. 1 that the letter should take some "paan supari" and settle the matter. Initially, accused No. 1 asked for Rs. 1,000/-; but P.W. 1 expressed his inability to pay Rs. 1,000/-. Thereupon, accused No. 1 asked Gana Kotwal to bring Pandurang to the police station and the two accused and Abdul Aziz rode the motor-bike to reach Pandharpur police station. Gana Kotwal and Pandurang, P.W. 1, reached the police station on foot by about the evening time. Thereafter some haggling, the amount of the bribe was reduced of Rs. 400/-. The amount of Rs. 50/- was paid by P.W. 1 to accused No. 2 there and then and he took time till 24th July, 1979 for payment of the balance. But, after he went to his village Vale, P.W. 1 had a second thought. He approached the Anti Corruption Department and lodged his complaint. The trap was arranged on 24th July, 1979. The currency notes of Rs. 350/- taken by P.W. 1 to the Anti Corruption people were marked and handed over to the complainant. He was asked to pay the amount to accused No. 1 upon demand being made by him in that behalf. The further story is usual one. The trap was, apparently, successful. Apparently, accused No. 1 was caught red-handed while accepting the marked notes of Rs. 350/- from P.W. 1. The usual panchanama was made. Though accused No. 2 was not caught in the trap, still, upon the complaint of P.W. 1, he was also arrested and investigation proceeded against both the accused. 4. The trap was, apparently, successful. Apparently, accused No. 1 was caught red-handed while accepting the marked notes of Rs. 350/- from P.W. 1. The usual panchanama was made. Though accused No. 2 was not caught in the trap, still, upon the complaint of P.W. 1, he was also arrested and investigation proceeded against both the accused. 4. Chargesheet and Charge.---On this basis the offence was registered by the Police against both the accused Charge- sheet was duly filed in the Court of the Special Judge, Solapur, who framed the charge, Ex. 7, against both the accused, under section 161 I.P.C. and section 5(1)(d) of the Prevention of Corruption Act 1947, against accused No. 1 and under section 165-A I.P.C. as also for abetment to accused No. 1 for offence under section 161 I.P.C. This charge was framed on 17-4-1980. Goes without saying that both the accused pleaded not guilty. 5. Defence.---The defence, as it unfolded itself, firstly from the cross-examination of the prosecution witnesses nextly from the examination of the accused under section 313 of the Criminal Procedure and, lastly, from their written says. Exs. 43 and 44 respectively may be stated at this stage itself. Very briefly speaking the defence was very simple. According to both the accused, an application was made by Shivaji (D.W. 1) at the Pandharpur Police Station on 18-7-1979 for protection of the applicant and his family from the goonda activities of Pandurang (P.W. 1). Both the accused referred to the incident dated 16-7-1989 (the incident as such is admitted. The application made by Shivaji (D.W. 1) at the police station is also admitted). The plea of the applicant Shivaji was that Pandurang (P.W.1) had gone to the house of Shivaji not at evensong but at the unearthly hour of 12.30 or 1 a.m. on 16-7-1989 or (it may be 17-7-1989). Grievance was that he was punch drunk and in that condition he manhandled Shivaji and threatened to murder him after making enquiries about the whereabouts of Dagdu, he threatened to murder Dagdu as well. As per the application given by Shivaji, he shouted for help and neighbours collected and, that is, how he was saved from being murdered. On 18-7-1979, therefore, he went to the Pandharpur Police Station accompanied by accused No. 5 and made the application (produced in these proceedings at Ex. As per the application given by Shivaji, he shouted for help and neighbours collected and, that is, how he was saved from being murdered. On 18-7-1979, therefore, he went to the Pandharpur Police Station accompanied by accused No. 5 and made the application (produced in these proceedings at Ex. 24), stating the above facts and stating also that one Vithal Ramchandra Ghodake had come running to the spot and he saved Shivaji from being murdered. According to accused, No. 1 read the application, gave it to Abdul Aziz for being registered and informed Shivaji as also accused No. 2 that he would come to the village Vade sometime in the next week and would make enquiries in the matter. According to both the accused, accused No. 1 did go to village Vade on 22-7-1979 accompanied by constable Abdul Aziz (P.W. 5). He sent for the applicant Shivaji's witnesses for the purposes of enquiries. He also sent for P.W. No. 1 Pandurang for hearing his side of the matter. All of them came. Likewise accused No. 2 also came there. Accused No. 1 took down the statements of members of family of Shivaji. He also enquired of Pandurang as to what he had to say. Thereafter, he left for the Police Station with constable Aziz on the motor-cycle and asked Gana Kotwal to bring Pandurang to the police station. Accordingly both of them came there. Likewise Shivaji and accused No. 2 also came there. In the presence of all of them, Pandurang agreed to settle the matter with Shivaji. Shivaji insisted that Rs. 400/- be paid to him by Pandurang as compensation for the heinous act committed by him on the night of 16th July with an assurance that such things shall not be repeated. Pandurang agreed but said that he had only Rs. 50/- with him at that time. He took out that amount and gave it to the accused No. 2 who in his turn gave it to Shivaji. Pandurang promised to give the balance of Rs. 350/- on Tuesday the 24th July, 1979 an assurance from accused No. 1 that upon the payment to Shivaji, the application filed by him against Pandurang would be withdrawn or filed. According to both these accused, Pandurang did not turn up at the Police Station at the appointed time on 24-7-1979. Shivaji had come there and was waiting for him. 350/- on Tuesday the 24th July, 1979 an assurance from accused No. 1 that upon the payment to Shivaji, the application filed by him against Pandurang would be withdrawn or filed. According to both these accused, Pandurang did not turn up at the Police Station at the appointed time on 24-7-1979. Shivaji had come there and was waiting for him. Since Pandurang did not turn up he stated that he would go for making purchases in the market, that being a Bazar Day. After he went away, the complainant Pandurang came. He was anxious to be relieved of the threat of the application (Ex. 22) hanging on his head. He, therefore, requested accused No. 1 to take the amount of Rs. 350/- to pay to Shivaji and to put an end to the entire saga. Finding that Shivaji was not coming with a view to bring settlement between the parties and to put an end to the matter amicably, accused No. 1 accepted the amount of Rs. 350/- from P.W. No. 1, Pandurang for being handed over to Shivaji. This according to accused Nos. 1 and 2 was the explanation of the fact that the marked currency notes were found in possession of accused No. 1 when the raiding party allegedly caught him red-handed. This is the explanation given by both the accused. As I will presently point out they have even justified for this contention from some pieces of prosecution's own evidence, in addition to the evidence of Shivaji himself, who should have been examined by the prosecution but was examined by the defence in default of the prosecution. Question, is whether the presumption that arises under section 4 of the Prevention of Corruption Act, 1947, stands rebutted by this explanation and whether the evidence relied upon by the defence supports this explanation. 6. Examination of the evidence, both oral and documentary led by the prosecution begins.---Evidence is led both by prosecution and defence, both oral and documentary defence led oral evidence of Shivaji Khalge D.W. 1. Defence has led no documentary evidence as such, but the one led by the prosecution is relied upon even by the defence in support of its own case. 7. Evidence of P.W. 1 Pandurang examined.---P.W. 1 is Pandurang who is himself the complainant. Defence has led no documentary evidence as such, but the one led by the prosecution is relied upon even by the defence in support of its own case. 7. Evidence of P.W. 1 Pandurang examined.---P.W. 1 is Pandurang who is himself the complainant. He has tried to state the prosecution case in his examination-in-chief and hence it is unnecessary to set out his evidence in examination-in-chief in detail. Only a few aspects of the examination-in-chief may be stated here. According to P.W. 1 one Hariram gave information to Pandurang (P.W. 1) about the sordid suggestion of wife swapping allegedly made by Dagdu (P.W. 1) became very angry upon which Hariram told him that he would file complaint against his own son-in-law Dagdu in the Court of Law. In para 3 of his deposition this witness has stated that on a Saturday he went to the house of Dagdu to question his as regards his sordid propaganda. According to him Dagdu was not really in the house at that time. If we turn to the F.I.R. we get the impression that Dagdu was very much present in the house at that time although he did not speak anything on that occasion. In para 4 P.W. 1 has stated that he and Hariram as also Madhukar and Murlidhar went near the Maruti temple to meet Shivaji as per their appointment, but that Shivaji did not turn up. This shows that Hariram has played a significant role in this story. Curiously enough, for reasons best known this Hariram is not examined by the prosecution. Thereafter the witness has tried to unfold the prosecution case further in details. One of his statement in para 8 has got significance. He has stated there that the amount of Rs. 50/- which he paid at the Police Station on 22nd (Sunday) was kept by accused No. 2 on the table of accused No. 1. There is no evidence that accused No. 1 took it. He has made a statement in para 9 that on Monday, the 23rd, accused No. 2 once again made a demand a demand on behalf of accused No. 1. This statement does not fund place in the F.I.R. Likewise some sort of explanation is sought to be given, in said para 9, as to why he decided not to pay the balance of Rs. This statement does not fund place in the F.I.R. Likewise some sort of explanation is sought to be given, in said para 9, as to why he decided not to pay the balance of Rs. 350/- and as to why he went to the anticoruption department. The explanation is not to be found in the F.I.R. In para 13, the witness has referred to the part played by Gana Kotwal. Quite an important role is ascribed to him. He has not been examined. In fact the statements imputed to Gana Kotwal are very important, but Gana Kotwal has not been examined. It follows that the statements are not even admissible in evidence. Strong adverse inference against the prosecution is therefore, inevitable on this point. In para 14 another significant statement is attributed to the accused. On the 24th (Tuesday) on which date the balance of Rs. 350/- was to be paid by P.W. 1. P.W. 1 went to the Police Station as alleged. But on the witness's own showing, accused No. 1 did not accept the amount from his and asked him to wait until accused No. 2 had come. A reference is made in this part of the evidence about the repeated demand made by accused No. 2. This demand is made in the presence of Gana Kotwal. Still Gana Kotwal is not examined. Likewise allegation is made that accused No. 1 himself made demand in the presence of Gana Kotwal and that, what is more important, accused No. 1 even received the amount offered to him by P.W. 1. The gamut of the evidence shows that according to P.W. 1, it was received in the presence of Gana Kotwal and still Gana Kotwal is not examined. Admittedly P.W. 1 is an accomplice and hence his evidence needs independent corroboration. No particular authority is necessary in support of this proposition. The best person to corroborate his evidence would be Gana Kotwal. He has been kept back from the Court. In the cross-examination, there is some contradiction brought out as to whether beating was given by accused No. 1 with to P.W. 1 before or after the talk by accused No. 1 with P.W. 1. Contradiction does exist but it is unnecessary to give much importance thereto. He has been kept back from the Court. In the cross-examination, there is some contradiction brought out as to whether beating was given by accused No. 1 with to P.W. 1 before or after the talk by accused No. 1 with P.W. 1. Contradiction does exist but it is unnecessary to give much importance thereto. In para 26 of his cross examination, he has admitted that the witness himself is in possession of 3¼ acres of land belonging to Madhukar Varkhal and that he has paid amount to Madhukar Varkhal to the extent of Rs. 1500/- for taking a registered sale deed of 3¼acres of land. Then in para 27, he admits that a Chapter Case was filed against him for assaulting Ratnabai and Sadashiv with a knife. This supports the statements made by relatives of Shivaji at the police station during the enquiry made by accused No. 1 against P.W. 1. All these witnesses have stated that this P.W. 1 is a goonda and moves about armed with a dagger. The witness has further admitted that he was convicted in a prohibition case. 8. F.I.R.---A word about the statement made by P.W. 1 in his F.I.R. assumes some importance in this case in particular. Normally some contradictions are required to be overlooked, but here we find certain significant statements in the F.I.R. which go quite some way to help the accused. Most of the contradictions in the F.I.R. and the evidence of the witness have been referred to above. I may mention only two significant statements, at this stage. He has admitted that after giving to him some beating, accused No. 1 made him sit down and thereafter he proceeded to record the statements of Shivaji and other persons such as Vasu, Prayagbai, Yamunabai and Dagdu. The statements are there on record. The statements were made in his presence. There is no cross-examination either of the police witness or of Shivaji showing that any of the statements were wrong statements. Those statements go a long way to prove the character of this witness. They show that he is a goonda and terror in the village. They also show the kind of behaviour that he indulged in on 16th July. They show that he did not go to the house of Shivaji and Dagdu merely at night time. Those statements go a long way to prove the character of this witness. They show that he is a goonda and terror in the village. They also show the kind of behaviour that he indulged in on 16th July. They show that he did not go to the house of Shivaji and Dagdu merely at night time. He went there punch drunk and that too at the odd hour of about 1 a.m. Then there is another significant statement made by him by stating that when the amount of Rs. 50/- was paid by him, it was paid by the Police Patil to accused No. 2 and what is more important is that accused No. 1 told accused No. 2 as follows : "You keep the amount with you". This is not what he has stated in his examination-in-chief. The point is that if this statement is accepted, this goes a long way to prove the defence case that the amount was settlement money received by accused No. 2 on behalf of Shivaji. 9. Evidence of P.W. 2 Madhukar Holkar.---This brings me to the evidence of next witness Madhukar P.W. 2. This witness has given evidence to the effect that he had played a steller role in the incident dated 22nd July, 1979. According to him on 22nd July, 1979 Pandurang P.W. 1 and witness's brother Hariram had gone to the school in the village because Pandurang was called there in connection with a complaint filed against him by Shivaji Khalge. He has not explained why this complaint should have been filed. He states that he went there along with uncle Baba. He stated that accused No. 1 asked Gana Kotwal to bring Pandurang to Pandharpur Police Station. As stated above Gana Kotwal is not examined. Thereafter he states that accused No. 1 and one constable went to Pandharpur on motorbike and thereafter P.W. 1 told the witness about the beating that he received from accused No. 1 and about the demand of Rs. 1000/- made by him to settle the matter and that he was asked to go to Pandharpur. The witness says that, thereafter, Pandurang, Gana, the witness and Baba together went to Pandharpur and reached there between 3.00 and 3.30 P.M. It will be seen that Pandurang has not stated any such thing in his evidence at all. 1000/- made by him to settle the matter and that he was asked to go to Pandharpur. The witness says that, thereafter, Pandurang, Gana, the witness and Baba together went to Pandharpur and reached there between 3.00 and 3.30 P.M. It will be seen that Pandurang has not stated any such thing in his evidence at all. Pandurang has made a casual reference to witness's presence at Pandharpur, but the tall claim of witness accompanying Pandurang to the police station is not deposed to by P.W. 1. Later on the witness states the part played by accused No. 1 in reducing the amount of Rs. 1000/- demanded by him from the P.W. 1. The witness has waxed quite eloquent point on the role that he played for settling the amount. Not a word of it is stated by Pandurang, P.W. 1. The witness has claimed that he himself had offered Rs. 300/- on behalf of P.W. 1. P.W. 1 has not stated any such thing. One has only to go though the story narrated by this witness to notice that nothing about state has been stated. The evidence of this witness shows that he himself was the hero of the occasion whereas the star witness P.W. 1 he gives to him the minor most role. In his cross examination he admitted that he did not know even till that date what kind of complaint it was which was filed by Shivaji against Pandurang and still he has the cheek to tell the Court that it was he who brought about settlement between accused No. 1 and P.W. 1. The witness admitted that till his statement was recorded by the police he had not uttered a single word about this to any one. It is further admitted by him as follows :--- "I desired that the case filed by Shivaji against Pandurang should be compounded." If this is true, then Shivaji's plea about settlement of his compensation stands to reason. The prosecution claims this witness to be an independent witness and the witness of corroboration. But the evidence of this witness is just worthless. It has come from the evidence of P.W. 1 that there are financial relations between him and P.W. 1 and it is obvious that this witness has been set up to give to the evidence of P.W. 1. an aura of veracity. But the evidence of this witness is just worthless. It has come from the evidence of P.W. 1 that there are financial relations between him and P.W. 1 and it is obvious that this witness has been set up to give to the evidence of P.W. 1. an aura of veracity. The prosecution led the evidence of this P.W. 2 evidently because evidence of P.W. 1 just cannot be relied upon unless it was corroborated by some independent evidence. This witness is manifestly a got up witness. Evidence of this witness is the evidence of accomplice.---Mr. Samant was also right in saying that this witness is himself an accomplice since, as per his own case he took part in the matter of negotiations of payment of the illegal gratification to P.W. 2 and was committing an offence of abetment under section 161 of the IPC as also under section 5(1)(d) of the Prevention of Corruption Act, and the evidence of one accomplice corroborating evidence of other accomplice is an unreliable piece of evidence. This evidence is, therefore, totally worthless. 9. Evidence of Abdul Aziz P.W. 5 is examined.---Abdul Aziz P.W. 5 is an orderly working for accused No. 1 attached to Pandharpur Police Station. He states that on 18th July, 1979 he came to the police station after lunch at about 4 p.m. when accused No. 1 was sitting at his table with two persons. He identified one of them to be accused No. 2. He states that accused No. 1 was reading an application at that time. He further says that after reading the application, accused No. 1 and the two persons went outside and talked for about five minutes after which accused No. 1 returned to the office alone and that thereafter he handed over the application to the witness. The witness claims not even to have read the application. His subsequent evidence in para 2 and 3 is of no importance, because it contains all admitted facts. In para 4, he has stated that Gana Kotwal was sent by accused No. 1 to fetch men from the vasti of Shivaji Khalge. He says that Gana Kotwal went to that vasti, gave the message and returned to the school. Then the witness says that accused No. 1 asked Gana Kotwal to go and fetch P.W. 1. Gana Kotwal's answer is significant. He says that Gana Kotwal went to that vasti, gave the message and returned to the school. Then the witness says that accused No. 1 asked Gana Kotwal to go and fetch P.W. 1. Gana Kotwal's answer is significant. According to this witness Gana Kotwal told accused No. 1 that P.W. 1 would be drink at that time (which was morning time) and would abuse him and that the P.S.I. should sent one constable to accompany him. This shows the character of P.W. 1 known to the general people. No doubt this evidence which is very mush against P.W. 1 is hear say and is not admissible because Gana Kotwal has not been examined. But the point is that the failure to examine such important witness gives rise to the inevitable adverse inference and in the present case, the adverse inference has got to be very strong. In para 5 of his evidence, the witness has stated things which are not consistent with what is stated by P.W. 1 Pandurang. According to him, Pandurang stated to accused No. 1 that he had not gone to the vasti of Shivaji Khalge at all and that he did not know anything about the incident. This is on the face of it false because Pandurang admits that fact in so many words. The witness further states that accused No. 1 started giving slaps to P.W. 1 and that immediately he, the witness, went out of the room. Thereafter the witness states that the persons from the vasti of Shivaji Khalge D.W. 1 had arrived at by that time and that their statements were recorded by accused No. 1. The witness states that the statement of various persons were taken by accused No. 1 and that their replies were dictated by accused No. 1 to the witness himself. He has identified those statements of five persons are thus proved by this witness. In para 6 of his evidence, he states that accused Nos. 1 and 2 as also himself went on the motorbike, firstly to village Adhiv and from there to Pandharpur. Nothing further is stated by this witness to inculpate the accused in this transaction. The prosecution has examined this witness to prove the demand made by the accused in respect of the illegal gratification. 1 and 2 as also himself went on the motorbike, firstly to village Adhiv and from there to Pandharpur. Nothing further is stated by this witness to inculpate the accused in this transaction. The prosecution has examined this witness to prove the demand made by the accused in respect of the illegal gratification. This witness does not speak a single word about the demand either at village Vale or at the Pandharpur Police Station. For what purpose this witness has been examined is a mystery. The peculiarity of this witness is that on every crucial occasion when the demand is alleged to have been made by the accused, the witness abstained from being one of those present. Examining this witness for any other purpose is irrelevant. This evidence is sought to be relied on to corroborate the evidence of P.W. 1 about the demand allegedly made by accused No. 1. The witness does not speak one word about the demand made by accused No. 1. 10. Evidence of Kadam P.W. 4 referred to.---Identical is the position of the earlier witness Kadam P.W. 4. He has been examined to prove application Ex. 24 made by D.W. 1 at the Pandharpur Police Station. It appears that at one time the prosecution was in confusion as to whether to rely upon the application or to deny the making of the application by Shivaji Khalge D.W. 1. This witness proved that application Ex. 24 was made by D.W. 1 containing serious allegations against Pandurang P.W. 1 and complaining about the harassment given to Shivaji and his family at 1 a.m. on 16th/17th July, 1979. The evidence of Kadam leaves no room for doubt that such an application was made by Shivaji, but the point is that the factum of the application is an admitted position. This is all the relevant oral evidence led by the prosecution. 11. Documentary evidence referred to.---Most of the documentary evidence is already referred to while examining the oral evidence. Most important piece of documentary evidence is Ex. 24 and the statements of the various persons recorded by accused No. 1 in the school at village Vale on 22nd July, 1979. It is true that application Ex. 24 is not a complaint as such. Most important piece of documentary evidence is Ex. 24 and the statements of the various persons recorded by accused No. 1 in the school at village Vale on 22nd July, 1979. It is true that application Ex. 24 is not a complaint as such. It asks for protection to the family of Shivaji Khalge D.W. 1, but the statements recorded by accused No. 1 in the school in village Vale Ex. 27 (1 to %) which documents are duly proved by the prosecution themselves leave no room for doubt that D.W. 1 and the members of his family and some other villagers were having a serious, deep rooted and long standing grievance against D.W. 1 and the members of his family and some other villagers were having a serious, deep rooted and long standing grievance against D.W. 1 Pandurang. The fact that he had held himself out as the terror in the village is very much evident by these statements. As regards this, there is no cross-examination on the part of the prosecution. In fact the prosecution itself has proved those statements. The F.I.R. is the other important documents, but that by itself is of no avail because there are serious contradictions between F.I.R. lodged by P.W. 1 on the one hand and the evidence given by P.Ws. 1, 2 5 on the other. The sum and substance of the entire evidence thus is; That there is next to no legal evidence of demand of illegal gratification being made, by accused from P.W. 1. As to whether proof of demand is necessary or not in the teeth of the provisions of section 4 of the Prevention of Corruption Act is a different question which I will presently deal with. 12(a). Evidence of Shivaji D.W. 1 examined. Peculiarity of his evidence viz. that the prosecution witness is examined as a defence witness note.---This takes us to the evidence of defence witness, Shivaji and it can be readily inferred that because of the application Exh. 24 made by this witness that the entire ball of this prosecution started rolling. 12(a). Evidence of Shivaji D.W. 1 examined. Peculiarity of his evidence viz. that the prosecution witness is examined as a defence witness note.---This takes us to the evidence of defence witness, Shivaji and it can be readily inferred that because of the application Exh. 24 made by this witness that the entire ball of this prosecution started rolling. If this witness is believed, whether exclusively on the strength of his own evidence or in conjunction with the other evidence on record particularly the circumstantial evidence such as adverse inferences that have become inevitable in this case, the presumption operating against the accused under section 4 of the Prevention of Corruption Act must be held to be rebutted. As a matter of fact, even if the evidence of this witness, read with the evidence on record, makes the explanation offered by accused No. 1 probable or even reasonably possible, the presumption must end. (b) As one goes through his evidence, one just cannot fail to notice that it is quite consistent with the defence case on all material particulars. However, the evidence emerging from his examination in chief is of quite a lackadiagical character. Things appear to have narrated by him. In the first place, the fact that on 16th July, 1979 P.W. 1 in fact had rushed to the house of D.W. 1 is not stated by him. But Mr. Samant was right in arguing that this part of the evidence was not much in dispute. The fact that P.W. 1 had gone to the house of D.W. 1 is not denied by P.W. 1. It is only the fact that he rushed to the house at the unearthly hour of 1 a.m. and threatened to murder those people is in dispute. But I may state here that even this part is not stated by this witness in this examination-in-chief. In this examination in chief all that this witness did was to identify the application Ex. 24 made by him at the Pandharpur Police Station on 18th July, 1979. The contents of the same are also proved by him. He further stated that after going through the application Exh. 24 the accused No. 1 had assured him and accused No. 2 (who was accompanying him) to come to village Wale for inquiry in the next week. 24 made by him at the Pandharpur Police Station on 18th July, 1979. The contents of the same are also proved by him. He further stated that after going through the application Exh. 24 the accused No. 1 had assured him and accused No. 2 (who was accompanying him) to come to village Wale for inquiry in the next week. He further stated that on the next Sunday the accused No. 1 came to the village accompanied by a constable (Abdul Aziz) and did made inquiry into the complaint filed by him against P.W. 1 by recording the statements of various members of Shivaji's family etc. This witness also stated that P.W. 1 was called by accused No. 1 to the school in village Wale where the inquiry was being made by accused No. 1 D.W. 1 also stated that while questioning P.W. 1 accused No. 1 did go even to the extent of abusing P.W. 1. According to D.W. No. 1, accused No. 1 did so because he was very much angry against P.W. 1. According to this witness, after the recording of the statements of the various persons mentioned by Shivaji was over, accused No. 1 directed Gana Kotwal to bring both P.W. 1 and D.W. 1 to Pandharpur Police Station and accused No. 1 went away on his motor cycle, accompanied by constable Abdul Aziz. He further stated that he himself. Kotwal and P.W. 1 went to the police station on foot. He also stated that the accused No. 2 had also come there. (c) D.W. 1 further stated that at the police station, P.W. 1 requested him to settle the matter, promising that he would desist from doing any such thing in the future. According to the witness he insisted upon payment of compensation and according to him the compensation was ultimately settled at Rs. 400/-. The amount of Rs. 50/- was paid by P.W. 1 to accused No. 2 for part payment to D.W. 1. According to D.W. 1 he in fact received the amount of Rs. 50/- from P.W. 1 through accused No. 2. 24th July, 1979, which was a Tuesday following the above Sunday was the date fixed for the payment of the balance amount of Rs. 350/- by P.W. 1 to D.W. No. 1 at the police station itself. Time, date and place were fixed. 50/- from P.W. 1 through accused No. 2. 24th July, 1979, which was a Tuesday following the above Sunday was the date fixed for the payment of the balance amount of Rs. 350/- by P.W. 1 to D.W. No. 1 at the police station itself. Time, date and place were fixed. He was to come at about 11 a.m. at the police station on 24th July, 1979, was to pay the amount of Rs. 350/- to D.W. No. 1, upon which payment the application filed by D.W. 1 was to be 'filed' by accused No. 1. (d) The evidence further goes to state that P.W. 1 did not turn up at the appointed hour. The witness waited for him and ultimately went away for making purchase because that was the Bazar Day. In the evening he was returning to the police station at about the time of the sunset, but on the way he met his brother Dagdu and Sarpanch Laxman, who informed him that accused No. 1 had been caught by the police. They advised him not to go the police station which was the reason why he beat a retreat and there ended the matter (the beautiful amount of Rs. 350/- having eluded him for the nonce). (e) This is his examination-in-chief. As stated at the outset, if this was all the evidence of the defence, I would not have ascribed mush weight to it. It does not ring very convincing. It does not speak anything about the incident dated 16th July, 1979. He does not in fact state as to for what purpose he insisted upon the payment of Rs. 400/- to him by P.W. 1. In the application Exh. 24 he had asked only for police protection. It is not his case that accused No. 1 or anyone else suggested payment of compensation by P.W. 1 to D.W. 1 and that it was quantified at Rs. 400/- through the process of settlement. If the facts stated by the witness were sought to be proved in any other proceeding on the strength of this evidence in examination-in-chief, the evidence would be unequal for such proof. (f) But curiously enough, the evidence which should have been elicited from the witness, in his examination-in-chief has been brought by the prosecution counsel on record in the witness's cross-examination. (f) But curiously enough, the evidence which should have been elicited from the witness, in his examination-in-chief has been brought by the prosecution counsel on record in the witness's cross-examination. For instance the fact that P.W. 1 had gone to D.W. 1's house on 16th July, 1979, punch drunk and that he had done so even previously has been bought out in the witness's cross-examination and that part of his evidence fully clicks with the cross-examination of P.W. 1. The reason for accused No. 2 accompanying D.W. 1 to the police station on 16th July, 1979, has come out from the witness cross-examination. (g) Further comments on the evidence of this witness.---Two things stand out of the total evidence of this witness 1) he should have been very much of prosecution witness. The prosecution owed it to the Court atleast an explanation as to why he was not examined by them. The learned Judge has observed that he appeared to have been won over by the defence. This may or may not be true. The point is that there is nothing in the witness's cross-examination which culls out such position. Moreover, his statement must have been recorded by the police during the investigation. Had he been examined by the prosecution as a prosecution witness and had he stated something contrary to his police statement remedial procedure is provided by the Criminal Procedure Code and/or Evidence Act for getting him declared a hostile witness. But the prosecution had just abandoned his evidence. ii) Moreover, a good deal of lacuna in the evidence of this witness in his examination-in-chief has been allowed to be filled in, as it were, in his cross-examination. (h) Two fold adverse inferences :---i) In his statement before the police the witness must have made statements consistent with his evidence in the Court. ii) In any event, very strong adverse inference must arise against the prosecution for non examination of this material witness without any explanation. (i) Trial Court's observation's dealt with.---The trial Court has observed that this witness's has or might have been won-over by the defence. This would have been justified, but for the nature of the witness's cross-examination. There is no basis laid down for such criticism in the entire cross-examination. 13. This Court's conclusions regarding the totality of evidence.---I have examined and analysed above the entire evidence. This would have been justified, but for the nature of the witness's cross-examination. There is no basis laid down for such criticism in the entire cross-examination. 13. This Court's conclusions regarding the totality of evidence.---I have examined and analysed above the entire evidence. Inspite of the nature of the cross-examination of D.W. 1 I would have gone to the extent of holding that if the defence took upon itself the burden of rebutting the presumption arising out of the said section 4, by leading positive evidence, then the evidence of Shivaji D.W. 1 was quite unconvincing. The feeling entertained by the learned Judge viz. that the witness might have been won-over by the defence is not one which is impossible. As I will presently point out, I am not prepared to accept Mr. Samant's contention that the demand by the accused is an integral part of the prosecution onus in such cases. In my, opinion, the plain reading of section 4 leaves no room for doubt that if at any time previously the burden of proof 'demand' by the public officer concerned was an indispensable pre-requisite, atleast after the advent of present section 4 on the Statute book, the necessity is done away with. But at the same time, courts cannot turn a blind eye to the fact that the nature and extent of onus required to be shouldered by the accused for rebutting the presumption under the said section 4 is not of the same quantity and quality as is the initial burden upon the prosecution arising out of the presumption of the innocence of the accused. Whereas the test for rebuttal of presumption of the innocence of the accused is of proof beyond reasonable doubt, the extent and nature of burden upon the defence to rebut the presumption under section 4 is to prove that his defence is reasonably plausible. In my opinion, the defence version is reinforced, to a large extent, by the statements made by Shivaji D.W. 1 in his cross-examination, but more than that the defence case gets boost from the weakness of the prosecution evidence resulting from an evidence of Pandurang P.W. 1. This very strong adverse inference which would inevitably arises against the prosecution. The result is that the presumption arising out of section 4 of the Prevention of Corruption Act, by virtue of the acceptance of Rs. This very strong adverse inference which would inevitably arises against the prosecution. The result is that the presumption arising out of section 4 of the Prevention of Corruption Act, by virtue of the acceptance of Rs. 350/- by the accused from P.W. 1, must be held to be sufficiently rebutted by the evidence obtaining on the record. 14. This Court's conclusions continued and finally stated.---The evidence as a whole is already examined and analysed by me. Let me refer here to the two inexplicable and unintelligible shortcomings in the prosecution evidence. (i) Pandurang P.W. 1 does appear to be a person of criminal or goonda tendencies.---On his own showing Pandurang P.W. 1 had been indulging in the offence arising out of the Prohibition Act. The evidence which has almost peeped out from the record shows that he is a drunkard and has been quite a terror in the village. The incident dated 16th July, 1979, is more or less admitted. He admits that he had gone to the house of D.W. 1 Shivaji. The date is also more or less admitted. If he had gone for some innocuous purpose it is wholly ununderstable as to why Shivaji made the particular application Exh. 24 at the police station. The factum of the application is an admitted fact. Moreover, a curious things is to be noticed in the prosecution evidence. On the prosecution's own showing accused No. 2 had accompanied D.W. 1 at the Police Station for making the application complaint Exh. 24 against P.W. 1. Still on the date of the inquiry, 22nd July, 1979, when according to the prosecution, accused No. 1 gave a severe beating and slapping to P.W. 1, accused No. 2 invited the witness Pandurang, for lunch to his place along with the police officer and the story is that he went there and partook of the meals which may or may not have been sumptuous. This conduct of P.W. 1 to some extent belies his grievance against accused No. 1 or accused No. 2. The conduct is quite inconsistent with his grievance against accused No. 2. It, therefore, follows that the evidence of this witness, P.W. 1, will require a very strong corroboration before the evidence given by him relating to before the trap (till 22-7-1979) is to be accepted. The conduct is quite inconsistent with his grievance against accused No. 2. It, therefore, follows that the evidence of this witness, P.W. 1, will require a very strong corroboration before the evidence given by him relating to before the trap (till 22-7-1979) is to be accepted. But what we find here is that the corroboration which is sought to be in the evidence of P.W. 2 is quite unconvincing. Even the evidence of Abdul Aziz, P.W. 5 is quite unconvincing because he makes it a practice of remaining absent at every crucial occasion. (ii) But what must really be considered as a tilting factor against the prosecution are the several adverse inference which must operate against them. (a) Adverse inferences.---The first adverse inference which must arise is on account of the non-examination of Gana Kotwal. After all Gana Kotwal is a prosecution witness. He is at the back and call of the prosecution. Abdul Aziz has referred in his examination-in-chief to the statement of Gana Kotwal that Pandurang P.W. 1 was a drunkard and that he must have been inebriated at the time when his presence was called for by accused No. 1 at the place of inquiry in the School. In fact, it is possible to say that that part of his evidence is not even admissible; but question would remain as to what was the reaction of Gana Kotwal. Gana Kotwal has figured P.W. 1 at several places in the story advanced by the prosecution. For reasons which are just unintelligible he has been kept away from the Court. (b) The second adverse inference which must arise is on account of the non examination of Hariram. The peculiarity of this case is that according to the prosecution, Pandurang P.W. 1 went to the house of Shivaji D.W. 1 to make inquiry as to the truth or otherwise of the information given to him by Hariram regarding the allegation of illicit relationship between Pandurang and Balabai w/o Dagdu. P.W. 1 stated that some kind of wife swapping was suggested by Dagdu behind the back of Pandurang and that such suggestion enraged him. All his evidence on this point is hearsay evidence. Because what Hariram stated to Pandurang, P.W. 1, could be stated only by Hariram. P.W. 1 stated that some kind of wife swapping was suggested by Dagdu behind the back of Pandurang and that such suggestion enraged him. All his evidence on this point is hearsay evidence. Because what Hariram stated to Pandurang, P.W. 1, could be stated only by Hariram. If we would ignore this part of his (Pandurang's) evidence which is hearsay evidence (which was stated to him by Hariram) there is no explanation in his evidence as to why he rushed to the house of Shivaji on the particular day. He stated that he went there for making the inquiry. What enquired was contemplated by Pandurang P.W. 1, would be something upon which light could be thrown only by the evidence of Hariram. Some kind of motive is sought to be pleaded by the prosecution or the complaint Exh. 24. That motive would have been proved by the evidence of Hariram. It is just ununderstndable as to why he has not been examined. (c) Then there are the persons who are named in the application, Exh. 24 and in Exh. 27 who were present at the time of the incident dated 16th July, 1979. These persons have not been examined. Explanation-nil. Coupled with this evidence of adverse inference is the evidence available on record in the form of the statements made by the various persons before accused No. 1 on 22nd July, 1979. The prosecution has proved those statements. The statements go a long way to prove the fact that the complaint, Exh. 24, was quite a genuine complaint and if that is so it would stand to reason that Shivaji D.W. 1 who was smarting under the insult and humiliation meted out to him, insisted upon some kind of compensation from P.W. 1 through accused No. 1 in order to hush up the entire matter. It thus follows that the totality of the evidence of record gives quite some legitimacy to the explanation given by the accused. 15. Defence arguments referred to.---In view of the above conclusion arrived at by me, it is really unnecessary to examine some of the arguments advanced by Mr. Samant. For instance, he argued that there was no evidence of any 'demand' made by the accused either on 22nd July, 1979, or on 24th July, 1979. His further plea was that there existed no legal corroboration to the evidence given by Pandurang. P.W. 1. Samant. For instance, he argued that there was no evidence of any 'demand' made by the accused either on 22nd July, 1979, or on 24th July, 1979. His further plea was that there existed no legal corroboration to the evidence given by Pandurang. P.W. 1. He further pleaded that there was no corroboration of the acceptance of the amount of Rs. 50/- by the accused from P.W. 1 through accused No. 2. I do not propose to spend any time or space for the argument of Mr. Samant relating to the necessity of the corroboration of the evidence of P.W. 1. I am not holding but an assuming that the evidence is not required to be corroborated or that it stands corroborated. The fact however, remains that there is an explanation given by the accused which when juxtaposed against the evidence of P.W. 1, P.W. 2 and P.W. 5 in the light of the adverse inferences operating against the prosecution must outweigh the effect of the evidence led by prosecution. Examination of the other points raised by him, therefore, becomes academic. In view of the matter, even Mr. Samant's plea that one accomplice cannot corroborate the evidence of other accomplice becomes quite academic one. In fact, Mr. Samant formally formulated four propositions as the basis of his argument. All of them are covered by his arguments as the basis of his arguments mentioned above and hence it is unnecessary to refer to them once again. 16. Argument that 'demand' by the public servant is an integral part of the prosecution onus is rejected.---However, I must deal with the thrust of the argument or Mr. Samant viz. that the independent proof of the 'demand' by the accused of the illegal gratification is an integral part of the prosecution onus. In my opinion, the argument has to support either in the plain reading of section 4 of the Prevention of Corruption Act or in any of the authorities cited by Mr. Samant across the bar. For this purpose it is necessary to set out the relevant portion of the said section 4 of the Act. In my opinion, the argument has to support either in the plain reading of section 4 of the Prevention of Corruption Act or in any of the authorities cited by Mr. Samant across the bar. For this purpose it is necessary to set out the relevant portion of the said section 4 of the Act. The relevant portion runs as follows :--- "4.(1) Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code or of an offence referred to in Clause (a) or Clause (b) of sub-section (1) of section 5 of this Act punishable under sub-section (2) thereof, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person it shall be presume unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain that gratification or that valuable thing as the case may be, as a motive or reward such as mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trail of an offence punishable under section 165-A of the Indian Penal Code or under Clause (ii) of sub-section (3) of section 5 of this Act, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the contrary is proved that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 161 of the Indian Penal Code, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2) the Court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid, in its opinion, so trivial that no inference of corruption may fairly be drawn." The plain reading of the above provision defines an understanding as to how even after the advent of this section 'demand' by the public officer of illegal gratification must be proved by the prosecution to the hilt. In fact, in the absence of this section all that would have been required to be proved by the prosecution would be--- (a) the demand, (b) the acceptance of the amount and (c) the purpose of the acceptance. Now, the position is this that more often than not the acceptance itself would be a proof of the 'demand'. In many a case it would be a circumstantial piece of evidence. The evidence required to be led by the prosecution for proving the demand, if the acceptance is proved would be of a very slight character. Quite often than not, the acceptance spells 'demand' because no public officer can dream of accepting any moneys from a stranger without there being some pre-existing cause for the same and such cause would mount to 'demand'. But that apart, by reading into the section, the necessity of demand, a good deal of injury is caused to the section. The intent of this section is to do away with the proof of certain things which are obvious, but the evidence of which would be very much long winding. The plain reading of section 4 is that not only the proof of the fact that the purpose of the acceptance is dispensed with, but even the proof of the making of the demand is dispensed with. The very acceptance bears upon itself the stamp of illegal gratification. No one accepts illegal gratification as a motive or reward without there being a nexus between the acceptance and the purpose. The 'demand' is implicit in this entire affair. 17. The practice followed and of insisting upon demand by the public servant before the moneys passed on to him---Held-Not relevant.---Mr. No one accepts illegal gratification as a motive or reward without there being a nexus between the acceptance and the purpose. The 'demand' is implicit in this entire affair. 17. The practice followed and of insisting upon demand by the public servant before the moneys passed on to him---Held-Not relevant.---Mr. Sawant invited my attention to the evidence of the panch witness as also of the police officers to show that strict instructions were given to P.W. 1 in the presence of panchas that he was not to make payment of Rs. 350/- to accused No. 1 unless the latter had demanded the same from P.W. 1. According to the learned Counsel, this is the practice invariably followed by the police before laying down every trap of this character. According to him, this practice has its origin in the provisions of section 4 which do not dispense with the proof of demand by the public servant. In my opinion, this argument cannot hold water. Practices are followed by the police or other agencies, many a time, by way of abundant caution. Not infrequently they are followed even after their requirements have become otiose. Practice can be explained by legal provisions, but the legal provisions cannot be interpreted on the basis of a practice. In my opinion, even such an argument needs just to be stated to be rejected. It may be that in certain cases the proof of demand may play pivotal role. If the prosecution proves the demand made by the public servant and if the acceptance is borne out and is proved beyond reasonable doubt (with the help of anthracin powder etc.) the fate of the public servant will be sealed because the conviction shall have to follow. But that would not be on the basis of section 4 is necessary or useful if both demand and acceptance are proved or are required to be proved. If the demand is made, it will be deemed that it will be a demand for illegal gratification and the presumption envisaged by the said section 4 would be meaningless. 18. Authorities Examined.---Quite a few authorities were cited across the bar on various aspects of the evidence. However, I propose to examine the authorities only on two aspects. If the demand is made, it will be deemed that it will be a demand for illegal gratification and the presumption envisaged by the said section 4 would be meaningless. 18. Authorities Examined.---Quite a few authorities were cited across the bar on various aspects of the evidence. However, I propose to examine the authorities only on two aspects. (i) Whether demand by the public servant is the integral part of the prosecution onus; (ii) The extent and nature of the proof required to be given by the defence to rebut the presumption arising out of section 4 of the Act. a) The first authority which Mr. Samant evidently relied as the sheet anchor of his case is the famous (Panalal's case)1, reported in 1979(2) Criminal Law Journal page 936. In that case accused No. 1 was the Public Prosecutor who, allegedly, demanded a sum of Rs. 50/- from the complainant in order that the previous conviction of the complainant would not be brought to the notice of the Court by accused No. 1, thus evading stiff punishment for the convict. Accused No. 2 in that case was just an orderly attached to accused No. 1. Mr. Samant relied upon this authority because allegation even in that case was that accused No. 1, the Public Prosecutor, had demanded the above mentioned illegal gratification. That too was a case of trap where marked currency notes were recovered from one of the two accused. An allegation was made against accused No. 1 that he had made the demand. The Supreme Court found that there existed no corroboration to the testimony of the complainant regarding the alleged demand for money by the accused. The evidence of the complainant on that point therefore, would not to be acceptable. It is this insistence of the Supreme Court upon proof of the demand from accused No. 1 in that case that has prompted Mr. Samant to go on harping upon his argument that the demand is an integral part of the prosecution onus, the presumption under section 4 notwithstanding. What the learned Counsel has lost sight of is that in that case the moneys were not recovered from accused No. 1 at all. It was the orderly who had accepted the amount. There was, therefore, no basis for the presumption arising under section 4 in that case. What the learned Counsel has lost sight of is that in that case the moneys were not recovered from accused No. 1 at all. It was the orderly who had accepted the amount. There was, therefore, no basis for the presumption arising under section 4 in that case. What is required for section 4 of the Act is the acceptance or obtaining of the amount by the public officer concerned. In that case, the amount was neither accepted nor obtained by accused No. 1. In that case, therefore, unless the demand by accused No. 1 was proved and further, unless pre-arrangement in the nature or conspiracy or abetment between accused Nos. 1 and 2 was proved, no basis existed for invoking the said section 4 at all. This is the crucial and root going difference between the two cases. Insistence of proof of demand in that case, by the Supreme Court, has, therefore, no relevance whatsoever with the principle sought to be propounded by Mr. Samant viz. that the demand is the integral part of the prosecution onus. This is the only authority relied upon by the learned Counsel in support of his above mentioned proposition and it is seen that this authority cited by him does not support him at all. (b) But there is more or less a direct authority for rejecting Mr. Samant's argument. In (V.D. Jhingan's case)2, A.I.R. 1966 Supreme Court, page 1762, it has been held that--- "To raise the presumption under section 4(1) of Prevention of Corruption Act, the prosecution has to prove that the accused has received 'gratification other than legal remuneration'. When it is shown that the accused has received a certain sum of money which was not his legal remuneration , the condition prescribed by the section is satisfied and the presumption must be raised. Further the mere receipt of 'money' is sufficient to raise the presumption." The point is the mere receipt of moneys is enough to raise the presumption. Requirement of demand etc. is not necessary at all. That is not only the plain reading of the section, but even the Supreme Court's interpretation of that section is the one mentioned above and nothing else. In fact, the Supreme Court has relied upon its earlier decision in (Dhanvantrai Balwantrai v. State of Maharashtra)3, A.I.R. 1964 S.C. 575, where an identical view was taken. is not necessary at all. That is not only the plain reading of the section, but even the Supreme Court's interpretation of that section is the one mentioned above and nothing else. In fact, the Supreme Court has relied upon its earlier decision in (Dhanvantrai Balwantrai v. State of Maharashtra)3, A.I.R. 1964 S.C. 575, where an identical view was taken. In this connection the Supreme Court has observed as follows : "It was contended in that case that the mere receipt of any money did not justify the raising of the presumption and that something more than the mere receipt of the money had to be proved. The argument was rejected by this Court and it was held that the mere receipt of the money was sufficient to raise a presumption under the sub-section." The earlier authority referred to by the Supreme Court in (C.I. Emden v. State of Uttar Pradesh)4, A.I.R. 1960 S.C. 548, is to the same effect. Nothing in Panalal's case has resulted in making any kind of dent upon this settled position of law. c) The second argument of Mr. Samant, however, is well supported by atleast two authorities of the Supreme Court. In V.D. Jhingan's case the Supreme Court has observed that--- "The burden of proof lying upon the accused under section 4(1) of the Prevention of Corruption Act will be satisfied it he establishes his case by a preponderance of probability as is done by a party in civil proceedings. It is not necessary that he should establish his case by the test of proof beyond a reasonable doubt." To the same effect is the judgement of the Supreme Court in (Man Singh's case)5, 1979(2) Criminal Law Journal, 1118. It has been held in that case, in relation to the rebuttal of presumption under the said section 4, that, it is sufficient if the accused offers probable explanation or defence and that strict standard of proof was not necessary. It is in this view of the matter that, in my opinion, the explanation offered by the accused viz. that the moneys were accepted by him for payment to the aggrieved party, Shivaji D.W. 1 read with the strong adverse inference operating against the prosecution, must be held to be enough to rebut the presumption arising out of his acceptance of the amount of Rs. 350/-. Mr. Patil, the Addl. that the moneys were accepted by him for payment to the aggrieved party, Shivaji D.W. 1 read with the strong adverse inference operating against the prosecution, must be held to be enough to rebut the presumption arising out of his acceptance of the amount of Rs. 350/-. Mr. Patil, the Addl. Public Prosecutor, appearing for the State was frank enough to state that it the presumption was rebutted, the evidence on record would not justify conviction of the accused on any of the offences. I must state that his argument centred mainly around the plea of the learned Counsel for the defence that the demand was the integral part of the prosecution onus. He did not justify the conviction on the basis of the evidence bereft of the presumption and he was quite right in not doing so. The evidence is already examined above and it is seen that the kind of the evidence the prosecution did lead was unconvincing, but the kind of the evidence it failed to lead made its case very much weaker still. The order of conviction passed against accused No. 1 must, therefore, be set aside. 19. Accused No. 2 has not received any moneys at all. Plea againsts him is of abetment of accused No. 1. If accused No. 1 is acquitted, conviction of accused No. 2 must also fail. The appeal, therefore, succeeds. The order of conviction and sentence passed by the Sessions Court against both the accused is hereby set aside and both the accused are acquitted of all the changes levelled and framed against them. The bail bonds to stand cancelled. Order accordingly. -----