JUDGMENT V. K. Mehrotra, J.—Amar Singh, an Assistant Sub-Inspector of Police, who was posted at Police Station, Jogindernagar, District Mandi, in the year 1983, was tried by the Special Judge, Mandi, in Corruption Case No. 2 of 1984, under section 161 of the Indian Penal Code and section 5 (I) (a) read with section 5 (2) of the Prevention of Corruption Act, 1947. He was acquitted by the learned Special Judge by an order of October 25, 1984. The State of Himachal Pradesh assailed the order of his acquittal in Criminal Appeal No, 21 of 1985, State of Himachal Pradesh v, Amar Singh. 2. The appeal came up for hearing before one of us (V. K Mehrotra, J.). One of the questions which arose for consideration, during the hearing, was whether it was necessary for the prosecution to prove the fact of demand of illegal gratification by an accused person independently before it can seek conviction of the accused under section 161,1. P. C. and section 5 (5) of the Prevention of Corruption Act or not. The question had been answered in affirmative by Bhawani Singh, J. in State of Himachal Pradesh v. Tej Ram, 1989 (2) Sim-LC9. The view so expressed, in the opinion of one of us, required reconsideration for various reasons It is on that account that the question was placed before us for consideration 3. Section 161 of the I. P. C, in its material parts says that: "Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration...................shall be punished with imprisonment........" Section 5 (1) of the Prevention of Corruption Act, 1947, provided that a public servant is said to commit the offence of criminal misconduct— (a) ** ** ** ** (b) *? ** ** ** (c) ** ?* ** ** (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or (e) ?* ** ** *? 4. Section 4 of the Prevention of Corruption Act, 1947, provided for presumption to be raised against an accused in certain circumstances. 4. Section 4 of the Prevention of Corruption Act, 1947, provided for presumption to be raised against an accused in certain circumstances. In essence, it said that where in any trial of an offence punishable under section 161 of the Indian Penal Code or of an offence referred to in clause (a) or in clause (b) of sub-section (1) of Sec. 5, it was proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain......,............, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he did so as a motive or reward as mentioned in section 161, or without consideration or for a consideration. which he knew to be inadequate. 5. The question which is before us centres round the fact whether a presumption of the nature envisaged by section 4 (i) of the Prevention of Corruption Act, is available to the prosecution even in the absence of proof of the fact of demand of illegal gratification by the accused person from the circumstance of conscious acceptance by him of any illegal gratification from another person or not. Also, whether the accused person can be convicted of an offence under section 161 of the Indian Penal Code or section 5 (1) of the Prevention of Corruption Act, 1947 on proof of conscious acceptance by him of some illegal gratification or the conviction can only be recorded upon proof, as an independent fact, of a demand of illegal gratification by him. 6 The submission of the learned Assistant Advocate General, Shri M. S. Chandel, has been that proof of demand of illegal gratification by an accused person, as an independent fact, is not necessary before a finding of guilt can be recorded by the court and that it was sufficient for the prosecution to establish, to the satisfaction of the Court that the accused person has consciously accepted the amount of illegal gratification. He says that it is implicit in the fact of conscious acceptance of illegal gratification by an accused person that he had the necessary element of mens rea for justifying a finding of guilt. He says that it is implicit in the fact of conscious acceptance of illegal gratification by an accused person that he had the necessary element of mens rea for justifying a finding of guilt. 7 What is noticeable is that both under section 161 of the Indian Penal Code and section 5 of the Prevention of Corruption Act the legislature has used the word obtains and not the word demand\ The use of the word obtains is indicative of the legislative intent that what leads to culpability on the part of the accused was conscious acceptance by him of the illegal gratification irrespective of the fact whether there was evidence to establish, as an independent fact, that he had demanded the illegal gratification. 8. On its plain language, section 4 (I) of the Prevention of Corruption Act, 1947, does not support the view that independent proof of demand of illegal gratification was to be offered by the prosecution before it could invoke the presumption which, of course, was a rebuttable one. The presumption could be invoked by the prosecution on proof by it of the fact that the accused person had obtained, that is, consciously accepted gratification other than legal remuneration from any person This has been repeatedly observed by the Supreme Court. We may refer to some of these decisions. In M. Narayanan Nambiar v State of Kerala, AIR 1963 SC 1116, the Supreme Court noticed with approval two of its earlier decisions in Bam Krishan v. State of Delhi, AIR 1956 SC 476 and Dhaneshwar Narain Saxena v. Delhi Administration, AIR 1962 SC 195 and observed (in Paragraph 10), while considering the question of construction of section 5 (J) (d), that: ".........obtain means acquire or get. If a corrupt officer by the said means obtains a valuable thing or a pecuniary advantage, he can certainly be said to obtain the said thing or a pecuniary advantage......On a plain reading of the express words used in the clause, we have no doubt that every benefit obtained by a public servant for himself, or for any other person by abusing his position as a public servant falls within the mischief of the said clause " 9, These observations, when read in the light of the observations of the Supreme Court in paragraph 9 of its decision in Ram Krishan, make the position clear beyond doubt, What was said in Ram Krishan was this : ".....We have primarily to look at the language employed and give effect to it. One class of cases might arise where corrupt or illegal means are adopted or pursued by the public servant to gain for himself a pecuniary advantage. The word obtains, on which much stress was laid does not eliminate the idea of acceptance of what is given or offered to be given, though it connotes also an element of effort on the part of the receiver. One may accept money that is offered, or solicit payment of a bribe, or extort the bribe by threat or coercion, in each case, he obtains a pecuniary advantage by abusing his position as a public servant ....." These observations unmistakably lay down that proof of demand of illegal gratification and the acceptance thereof after such demand, is not a necessary ingredient of the offence The gravamen of the offence is acceptance of gratification other than legal remuneration by a public servant in the circumstances envisaged by section 16 i of the Indian Penal Code and section 5 of the Prevention of Corruption Act, 1947. 10. In State of Assam v. Krishna Rao and another, AIR 1973 SC 2 , the Supreme Court noticed its earlier judgments in State of Madras v A. Vaidianatha Iyer, AIR 1958 SC 61, C. I Emden v. State ofU.P., AIR 1960 SC 548, Dhanvantra v. State of Maharashtra, AIR 1964 SC 575. 10. In State of Assam v. Krishna Rao and another, AIR 1973 SC 2 , the Supreme Court noticed its earlier judgments in State of Madras v A. Vaidianatha Iyer, AIR 1958 SC 61, C. I Emden v. State ofU.P., AIR 1960 SC 548, Dhanvantra v. State of Maharashtra, AIR 1964 SC 575. Jhangan v. State of U. P., AIR 1956 SC 1762 and S. N. Base v. State of Bihar, Citation not contained in the report, which lay down that where it was established that a gratification had been accepted, the presumption under section 4 shall at once arise and that it was a presumption of law which was obligatory on the court to raise The legal position recognised by the Supreme Court in Krishna Rao is to the effect that: "Where it is proved that a gratification has been accepted, the presumption under section 4 of the Prevention of Corruption 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 section 4. The words unless the contrary is proved mean that the presumption raised by section 4 has to be rebutted by proof and not by bare explanation which may be merely plausible. The required proof need not be such as is expected for sustaining a criminal conviction; it need only establish a high degree of probability. 11. In Sita Ram v. The State of Rajasthan, AIR 1975 SC 1432, the prosecution had come to court with a case that appellant Sita Ram, alongwith co-accused Vikram Singh, who was later acquitted in appeal by the High Court, had demanded some amount by way of illegal gratification from the complainant. The Special Judge had found that accused Vikram Singh had asked the complainant to hand over the amount to appellant Sita Ram and the currency notes in question were recovered from the possession of Sita Ram. The High Court, while acquitting Vikram Singh, found that the prosecution had failed to prove beyond reasonable doubt that both the accused had demanded the amount from the complainant. It, however, upheld the conviction of Sita Ram on its view that a presumption under section 4 (1) of the Prevention of Corruption Act, 1947 could be drawn against Sita Ram on account of the fact of recovery of the currency notes from him. It, however, upheld the conviction of Sita Ram on its view that a presumption under section 4 (1) of the Prevention of Corruption Act, 1947 could be drawn against Sita Ram on account of the fact of recovery of the currency notes from him. The Supreme Court set aside the conviction of Sita Ram as well. It said that the evidence relating to the demand of bribery and its acceptance by appellant Sita Ram was not worthy of credence and further that the conviction of Sita Ram could not be upheld on the basis of any presumption alone. According to the Supreme Court, no presumption could be drawn under section 4 (1) in the case of an offence referred to in section 5 (1) (d) of the Prevention of Corruption Act, 1947, as only clauses (a) and (b) of section 5 (1) were incorporated in section 4 (I). The rule of presumption, according to the Supreme Court, for sustaining the conviction of Sita Ram under section 161 of the Indian Penal Code also could not be applied, inasmuch as, the story of payment of money by the complainant to appellant Sita Ram was not established beyond reasonable doubt. 12. A close reading of the judgment of the Supreme Court in Sita Ram establishes beyond doubt that apart from anything else, it must also be established that the accused had obtained* illegal gratification in the sense that he had accepted gratification from the complainant. It is only in the event of acceptance, on the failure of the prosecution to establish the demand of illegal gratification, by the accused that the presumption can be rosette to and not otherwise. The decision does not lay down, as canvassed on behalf of the accused in the present case, that the prosecution must prove that the accused had demanded any gratification from the complainant before it can seek conviction of the accused. On the contrary, when the charge against the accused person is that he had accepted gratification, the presumption could be raised against him on proof of the fact of acceptance of gratification even without proof of the fact of demand of gratification by him from the complainant. On the contrary, when the charge against the accused person is that he had accepted gratification, the presumption could be raised against him on proof of the fact of acceptance of gratification even without proof of the fact of demand of gratification by him from the complainant. Of course, if the charge against the accused person was that he had agreed to accept gratification, the failure to establish demand of gratification by an accused from the complainant, could have led to the rebuttal of the presumption that he had agreed to accept bribery from him. 13 In State of Himachal Pradesh v. Tej Ram, Bhawani Singh, J., after referring to the decision of the Supreme Court in Ram Krishan and mother v State of Delhi, AIR 1956 SC 476 and the decision of the Punjab and Haryana High Court in Ram Prakash v. State of Punjab, 1981 CLR 159; Tarlok Singh v The State of Punjab, 1983 (1) CLR 192, Teja Singh v. The Vote of Punjab, 1984 (1) CLR 281 and Mohinder Singh v. The State of Punjab,1984 (1) CLR 539, took the view that : “before any one can be proceeded against under these provisions (namely, section 161 of the I. P. C, and section 5 (I) of the Prevention of Corruption Aot), it is necessary to prove that it was as a result of demand that money was passed on......". Thereafter having regard to the facts of the case, the learned Judge concluded that if the case before him was examined in the light of this position, it could be safely concluded that the accused did not demand the money for giving a favourable report to Shri Chint Ram—PW 1". 14. Thereafter having regard to the facts of the case, the learned Judge concluded that if the case before him was examined in the light of this position, it could be safely concluded that the accused did not demand the money for giving a favourable report to Shri Chint Ram—PW 1". 14. In M. Narayanan Nambiar,, a decision rendered by four Judges, the argument, which was being considered by the Supreme Court, related to the construction of section 5 (1) Id) which provided that if a public servant by corrupt or illegal means or by otherwise abusing his position as public servant obtains for himself or for any other person valuable thing or pecuniary advantage, he shall be guilty of criminal misconduct, punishable under section 5 (2) of the Act In that case, it was said by the prosecution that by abusing his position as a public servant, the appellant who was a Special Record Inspector for land assignment, got some land assigned in the name of his brother-in-law without revealing the fact that he was his brother-in-law and by making false entries in the relevant records. The suppression of the fact that the assignee was his brother-in-law and the underestimate of the value of the land were dishonestly made to circumvent the rules governing the assignment of land to landless poor. Both, the Special Judge and the High Court of Kerala, had convicted Narayanan under section 5(2) of the Prevention of Corruption Act, 1947, on the finding that he had dishonestly under-estimated the extent and the value of the trees in the land with a view to help his brother-in-law. 15. The argument raised before the Supreme Court included the submission that section 5(1 )(d) of the Act did not apply to a case of wrongful loss caused to Government by a public servant who by deceit induced it to part with its property. It was urged that being a penal provision, clause (d) should be strictly construed to only take in cases of direct benefit obtained by a public servant for himself or for any other person from a third party in the manner described therein and did not cover a case of wrongful loss caused to the Government by abuse of his power. The Supreme Court negatived the submission and held that the Act having been brought to purify public administration, the comprehensive terminology used in section f (!) (d) is to achieve the said purpose and a wider construction should be given to it. 16. The decision in M. Narayanan Nambiar clearly indicates that the Legislature had used the word obtains with a view to widen the scope of the crime by giving a wide definition with a view to punish those who, holding public office and taking advantage of their position, obtain any valuable thing or pecuniary advantage. These are the observations of the Supreme Court in Dhaneshwar Narain Saxena, which were quoted by the court with approval in M. Narayanan Nambiar. 17. The decisions of the Punjab and Haryana High Court noticed by the learned Judge in Tej Ram, on a close scrutiny, show that no substantial reasons are noticed in support of the principle that the demand by the accused of illegal gratification must be established as an independent fact. In Ram Prakash v. The State of Punjab, 1981 C. L. R. 159, the learned single Judge of that Court founded his decision, in acquitting the accused, on the sole basis that independent persons were not associated at the time of demand and recovery of the amount of illegal gratification by him. This decision does not purport to lay down that there should be proof of the fact of demand independently. 18. Tarlok Singh v. The State of Punjab, 1983 (2) CL R. 192, another single Judge judgment, says (in paragraph 5) that:—- "......it is imperative to hold that the prosecution has not been able to prove the demand of bribe by the appellant......" And later, after referring to a decision of the Suoreme Court and two decisions of the Punjab High Court that: “......In these cases it has been authoritatively held that no implicit reliance can be placed on the testimony of trap witnesses in the absence of independent corroboration because the trap witnesses are interested and partisan witnesses and on that account, they spring from a tainted source. This being the position of law. I find that these ingredients have not been satisfied in the instant case. This being the position of law. I find that these ingredients have not been satisfied in the instant case. The prosecution had to prove that the appellant had actually demanded tbe bribe money from Beant Singh and that after the bribe money was accepted by the appellant, it was recovered from his possession......" In the last paragraph of the judgment, it has again been said that:— ".....in the present case, there is no independent evidence to establish that the appellant had demanded any bribe money from Beant Singh or that such money was recovered at the instance of the appellant..." The conviction was set aside In this judgment as well one fails to find any reason for the view that it was necessary for the prosecution to prove the demand of bribery by the accused before he could be held guilty of an offence under section 5 of the Prevention of Corruption Act. 19. Teja Singh v. The State of Punjab, 1984 (1) C. L R 281, again was a case in which the conviction was set aside by a learned single Judge, who observed (in paragraph 4) that :— "......Demand of bribery by the accused person in such a case is the basic ingredient of the offence and it has not been shown by any witness that the appellant demanded bribery either at the initial stage or at the time when money was put in his pocket......" No reasons in support of the observation have been mentioned by the learned Judge in this case. 20. In Mohinder Singh v. The State of Punjab, 1984 (1) C. L» R. 539, the conviction of the appellant under section 5 (2) of the Prevention of Corruption Act read with section 161 of the Indian Penal Code was set aside on the ground that there was no corroboration of the statement made by the complainant in material particulars connecting the accused with the crime. The learned single Judge, who decided this case, does not say that direct proof of demand of illegal gratification by the accused was necessary, as a matter of law, before conviction of the accused could be upheld. 21. Panalal Damodar Rathi v. State of Maharashtra, AIR 1979 SC 1191 was a case wherein the amount of illegal gratification was not recovered from the accused. 21. Panalal Damodar Rathi v. State of Maharashtra, AIR 1979 SC 1191 was a case wherein the amount of illegal gratification was not recovered from the accused. In it, the appellant had demanded the illegal gratification from the complainant and the amount was to be paid to the co-accused. The Supreme Court found that the evidence in support of the demand of illegal gratification by the appellant consisted of uncorroborated testimony of the complainant and it could not be relied upon. To borrow the words of the Supreme Court (in paragraph 11) “......Though this Court normally will not interfere with the concurrent findings of the Courts below we feel that on the material placed-before us it will be hazardous to base a conviction. The marked notes were not recovered from the appellant. The prosecution case is that the money was paid to the second accused to be handed over to the appellant The complicity of the appellant is sought to be established by the conversation that took place between the complainant and the appellant in the presence of P. W. 3. The version regarding the conversation as given by the complainant and P. W. 3 is not consistent...... In the circumstances, we are constrained to give the benefit of doubt to the appellant...” The case does not lay down that proof of demand, as an independent fact, was necessary before conviction of a person could be upheld. 22. R. Venkatesan v. State, 1980 Crl L. J, 41 was a case decided by the learned single Judge of the Madras High Court. la paragraph 7 of the judgment, the learned Judge observed that the fact of demand of bribe by the appellant before him was not established. In the next paragraph, the learned Judge found that the evidence of offer of bribe by the first witness and its acceptance by the appellant at his office was of a doubtful character and it was not corroborated. In the state of evidence on the record, the learned Judge gave benefit of doubt to the appellant before him. There is no discussion in the judgment that proof of the fact of demand of bribe by an accused person was necessary as a pre-condition for his conviction. 23. In the state of evidence on the record, the learned Judge gave benefit of doubt to the appellant before him. There is no discussion in the judgment that proof of the fact of demand of bribe by an accused person was necessary as a pre-condition for his conviction. 23. Sadashiv Mahadeo Yavaluje & Gajanan Shripatrao Salokhe v. The State of Maharashtra, AIR 1990 SC 287 was also a case which was decided on its own facts, It does not say anything which may even have semblance of a statement of law to the effect that in order to succeed the prosecution must prove demand of illegal gratification by the accused as a fact independently. 24. State of U, P. v. Ram Asrey, 1990 (1) SCALE 128 again was a case which was decided on its own facts. The High Court had set aside the conviction of Ram Asrey, inter alia, for the reason that there was no corroboration of the testimony of the complainant (Ambar Prasad) regarding the demand of bribe by the accused. The Supreme Court upheld the order of acquittal by observing (in paragraph 5) that: “.....The sum and substance of the above reasonings go to show that there is no acceptable and clinging evidence proving that there was a demand of bribe and that the respondent accepted the amount in question as a motive or reward for doing an official act or showing a favour to Ambar Prasad in exercise of his official function," 25. The language in which the provisions of section 161 of the Indian Penal Code and section 5 (1) (d) of the Prevention of Corruption Act, 1947, are couched, make it clear, without any doubt, that where an accused person obtains illegal gratification in the sense of consciously accepting it, he would render himself liable for conviction. The view of the Supreme Court also appears to be clear to the same effect. 26. We are unable to share the view expressed in Tej Ram that as a matter of law it is necessary for the prosecution to prove the fact of demand of illegal gratification by an accused person independently before it can seek conviction of the accused under section 16i of the Indian Penal Code and section 5 (I) (d) read with section 5 (2) of the Prevention of Corruption Act, 1947. We feel that conscious acceptance of illegal gratification by the accused implies a demand on his part and enables the prosecution to seek his conviction on the ground that he had "obtained" illegal gratification rendering himself liable for punishment. 27. With this opinion, let the papers be placed before the Bench concerned for disposal of the appeal on its merits. Order accordingly. -