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2004 DIGILAW 66 (AP)

Syed Abdul Bari v. State Of A. P.

2004-01-23

V.ESWARAIAH

body2004
V. ESWARAIAH, J. ( 1 ) THE accused is the appellant. The Court of the Additional special Judge for SPE and ACB Cases at city Courts, Hyderabad by its judgment dated 31-3-1997 in C. C. No. 6 of 1989 found the accused guilty for the offence punishable under Section 161 of the Indian Penal code and under Section 5 (1 ) (d) read with section 5 (2) of the Prevention of Corruption act, 1947 (for short act ) and accordingly convicted him and sentenced him to suffer rigorous imprisonment for two years for the offence under Section 161 of the Indian penal Code and also convicted and sentenced to suffer rigorous imprisonment for two years and to pay fine of Rs. 500. 00 in default to suffer rigorous imprisonment for two months for the offence punishable under section 5 (1 ) (d) read with Section 5 (2) of the Act. ( 2 ) THE case of the prosecution is as follows: ( 3 ) THE appellant while working as excise Inspector, Gadwal Circle demanded an amount of Rs. 400. 00as gratification other than legal remuneration from the complainant, PW1 who was an Arrack contractor of leeja Group arrack shops for the year 1985-86 for showing official favour in issuing a No Due Certificate to the complainant, PW1. PW1 is not willing to pay any bribe amount to the accused and as such he approached the D. S. P. , A. C. B. , hyderabad Range, Hyderabad, PW11 at his office on 24-8-1987 and lodged a written complaint mentioning the facts and requested to take necessary action against the accused. On receipt of the complaint from PW1, a case was registered under Section 161 of the indian Penal Code and under Section 5 (2) read with Section 5 (3) (a) of the Act. During the course of the investigation, a trap was arranged against the accused by the anti Corruption Bureau (for short acb ). On 26-8-1987 at 9. 15 pm the accused in pursuance of the earlier demand, again demanded and accepted an amount of rs. 400/- from PW1 in his office at Gadwal as gratification other than legal remuneration as a motive or reward for showing official favour in issuing of a No Due Certificate to the complainant, when he was trapped by the officers of the ACB. 400/- from PW1 in his office at Gadwal as gratification other than legal remuneration as a motive or reward for showing official favour in issuing of a No Due Certificate to the complainant, when he was trapped by the officers of the ACB. Accordingly, he was charge-sheeted before the Special Court for the aforesaid offences. After the trial, the special Judge convicted him and sentenced him as aforesaid. ( 4 ) THE case of the prosecution according to PW1 against the accused is that PW1 was an arrack contractor of leeja for the excise years 1985 - 86 commencing from 1-4-1985 to 30-9-1986. FDR for an amount of Rs. 5,000. 00 was drawn in favour of Excise Superintendent, Mahaboobnagar district in respect of the arrack contract obtained by him as a security deposit. After expiry of the period of contract, he wanted to take back the security deposit. When he approached the Excise superintendent for the return of the FDR amount, he was asked to produce No Due certificate from the Mandal Revenue Officer, depot Manager and Circle Inspector, Excise, gadwal (office of the accused ). On 5-6- 1987 he went to the Assistant Depot manager, Gadwal and gave an application for issue of no due certificate. The Assistant depot Manager issued No Due Certificate, ex. P12 on the same day that is on 5-6-1987 stating that PW1 has repaid the entire amount and there are no dues. PW1 went to the office of the Mandal Revenue Officer, gadwal and he issued No Due Certificate on 29-7-1987 under Ex. Pll certifying that pw1 cleared all the rentals with penal interest. PW1 has submitted an application, ex. Pl dated 24-7-1987 for issuance of no Due Certificate before the accused stating that there are no dues outstanding against him to the Government in respect of leeja group of Excise Contract for the year 1985 - 86 and therefore, No Due certificate may be issued. The accused asked the complainant to furnish copies of the No Due Certificate issued by Arrack depot Manager and the Mandal Revenue officer and accordingly, he has furnished the Xerox copies of the same to the accused on 29-7-1987. The CI informed him that he will send the application for verification to the Sub-Inspector of Excise, leeja and then he will issue the No Due Certificate. The CI informed him that he will send the application for verification to the Sub-Inspector of Excise, leeja and then he will issue the No Due Certificate. On 22-8-1987, when he approached the Sub- inspector s office, the staff of the Sub- inspector informed him that they have already sent the report in connection with his application, Ex. Pl. The said report sent by the Sub-Inspector of Excise at leeja is ex. Pl, dated 21-8-1987 addressed to the excise Inspector, Gadwal, which states that there are no dues outstanding against PW1 in respect of his arrack licenses shall be credited to leeja for the year 1985-86 towards the rentals, compounding fee etc. The Excise simple imprisonment sent the said report along with the application back to the office of the CI (accused ). On the same day, the complainant also met the accused and asked him to issue No Due Certificate. On that he replied that only on payment of the demanded amount of Rs. 600. 00, he would give the No Due Certificate. On bargaining, he granted some concession, reduced the sum and demanded to pay Rs. 400. 00for the same. The complainant was not intending to pay the bribe amount of Rs. 400. 00 and he returned back to his house on 22-8-1987 and decided to approach the ACB authorities. Accordingly, he has prepared a written complaint and went to the ACB authorities at Hyderabad on 24-8-1987 and met the dsp, ACB, Hyderabad range and gave written complaint, Ex. P2. The DSP, ACB, pw11 asked PW1 to meet him at government Guest House, Kavarampet on 26-8-1987 at about 2 p. m. , along with an amount of Rs. 400. 00. Accordingly, on 26-8-1987, he went to Inspection Bungalow (I. B.), Kavarampet. The DSP introduced some of the ACB Officers and also two other Gazetted Officers to him and also another person, PW2 who is an officer accompanied him as a mediator. The DSP handed over Ex. P2 to the mediators and narrated the facts of Ex. P2, complaint to them and the Gazatted Officers having heard the statement of the complainant and gone through the complaint, Ex. P2 and then handed over the complaint, Ex. P2 to DSP along with Rs. 400. 00 containing denomination of Rs. 50. 00 currency notes eight (8) in number. P2 to the mediators and narrated the facts of Ex. P2, complaint to them and the Gazatted Officers having heard the statement of the complainant and gone through the complaint, Ex. P2 and then handed over the complaint, Ex. P2 to DSP along with Rs. 400. 00 containing denomination of Rs. 50. 00 currency notes eight (8) in number. The said currency notes were treated with phenolphthalein powder under the direction of the DSP as preparation for the trap. PW1 had already arranged the witness, PW2 went to the office of the appellant at about 6. 30 or 7. 00 pm but they were informed by the staff of the CI that he left for Gattu range and he will come to the office at about 7. 30 pm. Then all the trap parade went to the place and again enquired at 7. 30 p. m. , about the accused. The accused came to the office at about 9. 30 p. m. Then pw1 informed to DSP and the trap party and then the DSP asked PWs. l and 2 to go to the CI office. PW1 went inside while pw2"was standing outside the room. There was a curtain hanging outside to the room, which was partly opened to a side. PW2 was standing outside the door where the curtain was hanging outside. On seeing PW1, the CI asked him whether he brought the amount demanded by him. Then PW1 told him that he brought the amount. On demand of the accused to pay the amount, the complainant gave Rs. 400. 00 taking from his shirt to the accused. Then the accused gave the tainted amount of Rs. 400. 00 and gave to the accused. The accused counted the currency notes and kept the currency notes with his left hand on his table towards the left side and asked him to go to the clerk sitting in his office in another room and asked him to get the file pertaining to his no Due Certificate. Accordingly, he went to the clerk, PW4 and informed him that the accused asked to prepare the No Due certificate and place the same before CI. When he was going to the clerk, PW4, PW2 left the premises of the CI, Excise. Thereupon, the pre-scheduled signal was transmitted to the members of the ACB who were waiting outside. Accordingly, he went to the clerk, PW4 and informed him that the accused asked to prepare the No Due certificate and place the same before CI. When he was going to the clerk, PW4, PW2 left the premises of the CI, Excise. Thereupon, the pre-scheduled signal was transmitted to the members of the ACB who were waiting outside. They suddenly rushed to the place where the appellant was sitting and questioned the accused as to whether he has demanded and accepted the bribe amount of Rs. 400. 00from PW1. ( 5 ) THEN the accused admitted that he has received Rs. 400. 00not towards bribe, but towards rentals due from PW1. The fingers of both the hands of the accused dipped in glass tumbler of water mixed with sodium carbonate powder, which was colourless. When he did so, the said solution turned into pink colour which was the proof that he has touched the tented money applied with phenolphthalein powder. The appellant handed over the bunch of the currency notes from the left corner of his table and handed over the same to the mediators namely, N. Shyamala Rao, PW3 and another, the panch witnesses under the mediators report, Ex. P9. PW3 compared the numbers of the 50 rupees denomination of the currency notes numbering 8 mixed along with other currency notes valued rs. 500/- (Rupees five hundred only) and found all the 50 rupees denomination currency notes found in the bunch tallied. The following are the denominations of the currency notes found along with 8 fifty rupees denomination currency notes which were sent through the complainant to be paid as bribe to the CI. (1)20x7 = 140-00 (2) 10x27 = 270-00 (3)5x18 = 90-00 total: 500 - 00 ( 6 ) THEN the other amount of Rs. 500. 00 and tainted money of Rs. 400. 00 total Rs. 900. 00 given by the accused was seized. The earliest explanation of the accused was that he has not demanded Rs. 400. 00 given by pw1 as bribe but it was pertaining to the rental dues. ( 7 ) THE defence as reflected in the cross-examination of the accused is that PW1 developed grudge against him for booking cases against him, his father and his brother and also for the reasons for exposing the benami business transactions said to have been conducted by PW4 on behalf of the complainant. ( 7 ) THE defence as reflected in the cross-examination of the accused is that PW1 developed grudge against him for booking cases against him, his father and his brother and also for the reasons for exposing the benami business transactions said to have been conducted by PW4 on behalf of the complainant. That was the only defence in the examination conducted under Section 313 of the Code of the Criminal Procedure. Though in the second mediators report, he stated that he has received Rs. 400. 00 tainted money towards the rental due, but the defence in the cross-examination is that PWl paid Rs. 900. 00 towards the rental due. ( 8 ) PW2 who is APSRTC employee was taken by the ACB authorities on the day of the trap to assist as a witness in the trap proceedings. He has concurred with the oral testimony of PW1 and stated that he went along with PW1 to the office of the accused. Then PW1 went inside the room of the accused and he was standing out near the door at a distance of three feet from the door and he saw the accused sitting in his chair near his table. Later he heard the accused asking about the amount and he heard the accused demanding the money and he also found that PW1 took up Rs. 400. 00 from shirt pocket and gave to the accused. Then the accused counted the amount and kept on the table towards left side of the table. Immediately, he came out and rubbed his face with handkerchief (signal) as per the earlier instructions of the DSP, the pre- scheduled signal. The trap staff came into the room of the accused. After 10 to 15 minutes, himself and PW1 were called by the DSP into the room and examined them. His testimony in the chief examination could not be shaken in the cross-examination made by the accused. ( 9 ) PW3 is a mediator for the trap proceedings as well as the post-trap proceedings under Exs. P7 and P9. In the cross-examination, he has stated that the total amount found on the table of the accused was Rs. 900. 00 and out of it, tainted amount was Rs. 600. 00. In the chief examination, he has stated that the other notes found were five hundred rupees in the denomination of 7 notes of Rs. 20. P7 and P9. In the cross-examination, he has stated that the total amount found on the table of the accused was Rs. 900. 00 and out of it, tainted amount was Rs. 600. 00. In the chief examination, he has stated that the other notes found were five hundred rupees in the denomination of 7 notes of Rs. 20. 00 and 27 notes of Rs. 10. 00 and 18 notes of Rs. 5. 00 and 50 rupee denominations are 8 in number, total Rs. 900. 00. In the cross-examination, he has stated that the separated tainted notes were Rs. 600. 00 which is obviously a mistake, instead of stating Rs. 400. 00, he stated like that. ( 10 ) PW4, the Junior Assistant working in the office of the accused was declared as hostile as he was deviated from his original statement given before the ACB authorities. PW6 also turned hostile and stated that he was doing arrack business in the year 1986 - 87. He stated that PW1 and his brother were doing contracts in his name. He admitted that he alone obtained the licenses in the year 1986-87. Obviously he was managed by the accused but however, the so called benami business said to have been conducted by the accused and his brother in the name of pw6 was not at all proved as the licenses were obtained by PW6 and he alone did the business. He has stated that there were no cases booked against him for the contravention of A. P. Excise Act and Rules. Therefore, the defence put forth by the accused that PW1 bore grudge for booking the cases against the brother of PW1 is also not correct. However, as PWs. 4 and 6 turned hostile, their oral testimony is not trustworthy and cannot be taken into account for the reasons, which will be stated a little later. ( 11 ) PW7 is a tapper present at the time of the trap and another staff of the accused office, PW5 was also turned hostile. PW9 was the Sub-Inspector of police at that relevant point of time that he has received Ex. Pl from the office of the accused and on verification of the records, he has sent a report, Ex. P13 and stated that there were no dues outstanding towards the rentals or any other dues payable by the complainant. PW9 was the Sub-Inspector of police at that relevant point of time that he has received Ex. Pl from the office of the accused and on verification of the records, he has sent a report, Ex. P13 and stated that there were no dues outstanding towards the rentals or any other dues payable by the complainant. ( 12 ) PW11 who worked as DSP at the time of the trap and PW10 is the Inspector of Police, ACB who were actively involved in the trap. In the cross-examination it was asked on behalf of the accused that the accused stated in Ex. P9, post trap proceedings that he has stated before the acb that PW1 paid Rs. 900. 00 towards rentals due but not Rs. 400. 00, for which suggestion he denied. ( 13 ) THE accused examined as DW1 on behalf of the defence and in proof of his contents that PW6 did business on behalf of the complainant and his family members in the name of PW6. PW1 came to his office and expressed that the arrack business was pot running up to the mark as there was no co-operation of the AO and at that time, pw1 threatened the accused on the ground that the accused was not co-operating in the benami arrack business, carried in the name of PW6. In the cross-examination, he has admitted mat he did not report to any superior officers about threatening the accused by pw1. ( 14 ) DW2 is a toddy vendor of maldakal Village of Gadwal Taluk in mahaboobnagar District, examined to prove the contention of the accused that pw6 was the benamiholder of PW1 and his brothers. This is all the defence of the accused. ( 15 ) ON behalf of the prosecution, pws. l to 11 were examined; Exs. Pl, Pl (a), p2 to P19 and the material objects, MOs. l to 7 were marked. On behalf of the defence, DWs. l and 2 were examined and Exs. Dl and D2 were marked which are the portions marked in the statement of pw1 under Section 164 of the Code of criminal Procedure. ( 16 ) THE question that arises for consideration is whether the prosecution was able to prove the guilt of the accused beyond all reasonable doubt that the accused accepted bribe of Rs. 400. 00 from PW1. ( 16 ) THE question that arises for consideration is whether the prosecution was able to prove the guilt of the accused beyond all reasonable doubt that the accused accepted bribe of Rs. 400. 00 from PW1. ( 17 ) THE acceptance of illegal gratification of Rs. 400. 00 from PW1 is as a motive or reward for issuance of No Due certificate. Admittedly, the accused is a public servant. The presumption under section 4 (1) of Prevention of Corruption act, 1947 is attracted, in a trial of an offence punishable under Section 161 of the Indian penal Code or under Section 5 (1 ) (d) read with Section 5 (2) of the Prevention of corruption Act, 1947, if it is proved that the accused accepted any gratification which is supported by the independent witnesses and it is accepted as a motive or reward as is mentioned in Section 161 of the Indian penal Code. Admittedly in the instant case, the receipt of tainted money by the accused is accepted by the accused himself, but the earliest explanation in the post-trap mediators report, Ex. P9 that he has received Rs. 400. 00 from PW1, towards rental due, wherein in his examination under section 313 of the Code of Criminal procedure and his case in the cross- examination is that PW1 paid Rs. 900. 00 towards rental due. In the instant case, admittedly PW1 did arrack business of leeja group for the year 1985 - 86 and the excise year starts from 1-4-1985 and ends on 30-9-1986. The security deposit of rs. 5,000/- of PW1 was with the licensing authority i. e. , Excise Superintendent, mahboobnagar District and to get back the refund of the said amount, necessarily he has to produce No Due Certificate from the concerned authorities. Therefore, PW1 obtained the certificate, Ex. P12 from the arrack Depot, Gadwal dated 5-6-1987 stating that he is the contractor of leeja Group, and he has paid the entire rentals due for the year 1985 - 86 and there are no dues pending against him. Under the Excise Act, if the minimum guaranteed quantity of arrack is notified, he has to pay the price for the same and also he has to pay the interest. Therefore, PW1 obtained clearance certificate from the Arrack Depot Manager under Ex. P12. He has also obtained Ex. Under the Excise Act, if the minimum guaranteed quantity of arrack is notified, he has to pay the price for the same and also he has to pay the interest. Therefore, PW1 obtained clearance certificate from the Arrack Depot Manager under Ex. P12. He has also obtained Ex. Pl 1, no Due Certificate from the MRO, who maintains the payment of the rentals and if there is any late deposit, penal interest has to be paid. The MRO issued No Due certificate for the year 1985 - 86 as rentals were paid by PW1 along with penal interest and there are no dues. Admittedly the PW1 filed the application dated 24-7-1987 stating that he has no outstanding dues payable towards the arrack contracts for the year 1985-86 and accordingly, he has requested to issue No Objection Certificate. That No due Certificate is required for getting the refund of Rs. 5,000. 00 from the office of the excise Superintendent The said application was forwarded to the concerned Sub- inspector of Police, Excise and the Sub- inspector of Excise, after verification has sent a report dated 21-8-1987, Ex. P13 stating that there are no outstanding dues against pw1 in respect of his business either towards rentals or compound fees as per the records. The said report was received by the office of the accused. PW1 also made enquiries on 22-8-1987 and on enquiry, the office staff of the Sub Inspector of excise said that the report was already send. On the same day i. e. , on 22-8-1987, pw1 also went to the office of the accused. On that day, it is stated that the accused demanded the payment of Rs. 600. 00 and on bargaining, he has reduced it to Rs. 400. 00. Though there was no evidence in proof of the contention that PW1 met the accused on 22-8-1987, but the fact remains that there is no dispute as regards to the receipt of the report from the Sub-Inspector of excise. It is stated that unless the certificates are verified by the Sub-Inspector of Police, excise, as regards to the payment of rentals he would not have sent the report in favour of PW1. It is stated that unless the certificates are verified by the Sub-Inspector of Police, excise, as regards to the payment of rentals he would not have sent the report in favour of PW1. Admittedly PW1 obtained the no Due Certificate from the MRO as well as the Arrack Depot Manager and therefore, on verification of the records only, the excise Sub-Inspector also forwarded a favourable report in favour of the complainant. There was no reason why the No Due Certificate was not issued by the accused in favour of PW1 on 22-8-1987. Till the complainant went to the accused on 22-8-1987, after making a complaint before the DSP, ACB, No Due Certificate was not made ready. Only on payment of the bribe amount, the excise Cl asked to get the file relating to the No Due Certificate for his signature. ( 18 ) I am of the opinion that the prosecution proved the guilt of the accused beyond all reasonable doubt that the accused demanded an amount of Rs. 400. 00 for the issuance of No Due Certificate and also accepted the bribe amount of Rs. 400. 00. The said fact could not be contravened or disproved by the accused. He has relied only on the oral testimony of the hostile witnesses. As per the judgment of the supreme Court in State of Rajasthan, appellant v. Bhawani and another, (2003) 7 SCC 291 , the testimony of the hostile witnesses cannot be relied as held in para 10 extracted below:"the fact that the witness was declared hostile by the Court at the request of the prosecuting Counsel and he was allowed to cross-examine the witness, no doubt furnishes no justification for rejecting en bloc the evidence of the witness. But the Court has at least to be aware that prima facie, a witness who makes different statements at different times has no regard for truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to the same. The Court should be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to the same. The Court should be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence. The High court has accepted the testimony of the hostile witnesses as gospel truth for throwing overboard the prosecution case which had been fully established by the testimony of several eyewitnesses, which was of unimpeachable character. The approach of the High Court in dealing with the case, to say the least, is wholly fallacious. "under Section 4 of the Act, in certain cases, the Court shall also presume unless the contrary is proved as regards to the acceptance of gratification other than legal remuneration by a public servant based on the circumstantial evidence. But in the instant case, there is direct evidence as regards to the demand and acceptance of the gratification amount of Rs. 400. 00 other than the legal remuneration. While adverting to the contention to draw the legal presumption under Section 20 of the Prevention of corruption Act, 1988, which is same as section 4 (1) of the Act, that the legal presumption could be drawn only when the prosecution succeeded in establishing with direct evidence that the accused-public servant demanded and accepted the bribe amount and the further contention that premise cannot depend on an inference for affording foundation for the legal presumption envisaged under Section 20 of the Act, the Sessions Court while considering the corresponding Section 20 of the new act, which is same as Section 4 (1) of the old Act in the judgment explained in M. Narsinga Rao, Appellant v. State of A. P. , (2001) 1 SCC 691 , in paragraphs 13, 14, 15, 16 to 21 as follows: "13. Before proceeding further, we may point out that the expressions "may presume" and "shall presume" are defined in Section 4 of the evidence Act. The presumptions falling under the former category are compendiously known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression "shall be presumed" is employed in Section 20 (1) of the Act it must have the same import of compulsion. The presumptions falling under the former category are compendiously known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression "shall be presumed" is employed in Section 20 (1) of the Act it must have the same import of compulsion. ( 19 ) WHEN the sub-section deals with legal presumption it is to be understood as in terrorem i. e. , in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official Act etc. , if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. ( 20 ) THE word "proof need be understood in the sense in which it is defined in the evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the Court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to Act upon the supposition that it exists. This is the definition given for the work "proved" in the evidence Act. What is required is production of such materials on which the Court can reasonably act to reach the supposition that a fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher moitlton L. J. in Hawkins v. Powells Tillery steam Coal Co. , Ltd. , (1911) 1 KB 988 = 1911 WN 53. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher moitlton L. J. in Hawkins v. Powells Tillery steam Coal Co. , Ltd. , (1911) 1 KB 988 = 1911 WN 53. Observed like this;"proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion. " ( 21 ) THE said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business vis-a-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the evidence Act. ( 22 ) PRESUMPTION is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled. ( 23 ) FOR the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. Unless the presumption is disproved or dispelled or rebutted, the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This court has indicated so in Suresh Budharmal kalani v. State of Maharashtra, (1998) 7 scc 337 = 1998 SCC (Crl.) 1625, (SCC p. 339, para 5) "a presumption can be drawn only from facts - and not from other presumptions - by a process of probable and logical reasoning. "19. Illustration (a) to Section 114 of the evidence -. Act says that the Court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession". That illustration can profitably be used in the present context as well when prosecution brought reliable materials that the appellant s pocket contained phenolphthalein-smeared currency notes for Rs. 500. 00 when he was searched by PW7 DSP of Anti-Corruption bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else because there is a possibility of somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the Court to draw a factual presumption that the appellant had willingly received the currency notes. 20. PW7 DSP said that PW1 approached him on the previous day and lodged Ex. P2 complaint stating that the appellant was persistently demanding Rs. 500. 00 from him. The currency notes were actually prepared by pw7 by smearing them with phenolphthalein powder. When the appellant was caught red- handed with those currency notes he never demurred to PW7 that those notes were not received by him. In fact, the story that such currency notes were stuffed into his pocket was concocted by the appellant only after lapse of a period of 4 years and that too when the appellant faced the trial in the court. 21. In fact, the story that such currency notes were stuffed into his pocket was concocted by the appellant only after lapse of a period of 4 years and that too when the appellant faced the trial in the court. 21. From those proved facts the Court can legitimately draw a presumption that the appellant received or accepted the said currency notes on his own volition. Of course, the said presumption is not an inviolable one, as the appellant could rebut it either through cross-examination of the witnesses cited against him or by adducing reliable evidence. But if the appellant fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the appellant received the said amount. " ( 24 ) IN the instant case, there is no dispute as regards to the receipt of tainted amount and the cumulative evidence available on record, oral and documentary goes to prove that the complainant was not due and payable any amount either towards the rental, penal interest or compound interest or dues towards the lifting of minimum guaranteed quantity of arrack. All the relevant certificates were received by pw1 from the arrack Depot Manager, mro and the Sub-Inspector of Excise and therefore, the defence put forth by the accused that the complainant, PW1 paid rs. 400/- or Rs. 900. 00 as the case may be towards the rental due, is without any basis whatsoever. Therefore, I am of the opinion that the Court of the Additional Special judge for SPE and ACB Cases rightly found that the appellant has received gratification from PW1. The accused demanded and accepted the gratification as a reward for doing public duty that is for issuance of No due Certificate. The endeavour made by the accused to rebut the said presumption is not acceptable or near to the truth. ( 25 ) PWS. 4, 6 and 7 turned hostile and their oral testimony is of no help as defence to the accused and their evidence has not been established as regards to threatening the accused by PW1 with dire consequences and also as regards to the benami business done by PW1 in the name of PW6. ( 25 ) PWS. 4, 6 and 7 turned hostile and their oral testimony is of no help as defence to the accused and their evidence has not been established as regards to threatening the accused by PW1 with dire consequences and also as regards to the benami business done by PW1 in the name of PW6. The Court of the Additional special Judge for SPE and ACB Cases rightly held the accused guilty for the offences under Section 161 of the Indian penal Code and under Section 5 (1 ) (d) read with Section 5 (2) of the Prevention of corruption Act, 1947. ( 26 ) ACCORDINGLY, the conviction of the accused punishable under the aforesaid sections is confirmed. Insofar as the sentence to suffer rigorous imprisonment for two years for the offence under Section 161 of the indian Penal Code and rigorous imprisonment for two years for the offence under Section 5 (1 ) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 is concerned, I am of the opinion that the accused is aged about 65 years and it is just and proper if a sentence of rigorous imprisonment for six months on each count is imposed, apart from confirming the payment of the fine amount, it meets the ends of justice. Accordingly, rigorous imprisonment for two years in both the counts is reduced to rigorous imprisonment for six months in each count and both the sentences of imprisonment shall run concurrently. ( 27 ) HENCE, the criminal appeal is accordingly dismissed with a reduction of sentence to undergo rigorous imprisonment for a period of six months for the offence under Section 161 of the Indian Penal Code and to undergo rigorous imprisonment for six months and to pay fine of Rs. 500. 00 for the offence under Section 5 (1 ) (d) read with section 5 (2) of the Prevention of Corruption act, 1947.