Judgment ( 1 ) THE appeal takes an exception to the judgment and order of conviction dated 30-12-1995 passed by the learned Special Judge (4th Additional Sessions judge), Nagpur, in Special Case No. 22 of 1992, whereby the appellant/accused has been convicted for the offence punishable under section 161 of Indian Penal Code and is sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default to suffer rigorous imprisonment for one month. The appellant/accused has also been convicted for the offence punishable under section 5 (1) (d) r/w Section 5 (2) of Prevention of Corruption Act, 1947 and is sentenced to suffer rigorous imprisonment for six months and to pay a fine of Rs. 200/-, in default to suffer rigorous imprisonment for one month. ( 2 ) THE case of prosecution, in brief, can be stated as under : (A) The complainant Vijaykumar (P. W. 1) was working as Permanent Way inspector in the Central Railway at Nagpur. The accused was working as a Head Clerk in the engineering Branch in the Divisional Railway manager's Officer, Central Railway, Nagpur, at the relevant time. The pay of complainant vijaykumar for the suspension period from 13-11-1981 to 25-12-1981 was due and in spite of submitting applications from time to time no action was taken by the department for releasing the pay. (b) On 13-7-1987 the complainant approached the accused and requested him to forward his application to the proper authority. That time the accused told him that his pay for the suspension period would be around rs. 1,000/- and he should pay Rs. 50/- for forwarding his application. On 16-7-1987 the complainant had given hand written application to the accused who after going through the same had made certain corrections in the red ink and then he himself had scribed the application and advised Vijaykumar to get four typed copies prepared and submit the same before him along with Rs. 50/- on 17-7-1987. (c) It is contended that Vijaykumar was not willing to give the bribe to the accused and, therefore, he approached the Anti corruption Bureau at Nagpur and submitted his written complaint (Ex. 18) along with two applications (Exs. 16 and 17 ). 50/- on 17-7-1987. (c) It is contended that Vijaykumar was not willing to give the bribe to the accused and, therefore, he approached the Anti corruption Bureau at Nagpur and submitted his written complaint (Ex. 18) along with two applications (Exs. 16 and 17 ). Police Inspector sharma (P. W. 3), who was working in the Anti corruption Bureau, reduced the complaint into writing and thereafter called two panchas from the office of Zilla Parishad including Dilip (P. W. 2 ). The contents of the complaint were made known to the panchas and the demonstration of the effect of application of phenolphthalein powder and testing the same in sodium carbonate solution was shown. The complainant had produced five currency notes of Rs. 10/- denomination each. Phenolphthalein powder was applied to the currency notes and these currency notes were kept in the left side pant pocket of the complainant. P. I. Sharma instructed the complainant and the panchas and asked panch Dilip (P. W. 2) to accompany the complainant and hear and watch the dialogue which may take place between complainant and the accused. P. I. Sharma also instructed the complainant to give the amount to the accused only on demand put forth by him and after acceptance he should make signal by putting handkerchief on his head. P. I. Sharma also instructed the complainant and the panch Dilip that on enquiry by the accused they should explain him that Armarkar is the cousin of the complainant. After following the above procedure, police prepared the panchanama (Ex. 22 ). (d) Thereafter the police party, panch witnesses and the complainant left Anti corruption Bureau in a jeep. The complainant and the panch Dilip Armarkar went into the office of the accused and the other members followed them by keeping distance. The accused was in his chair. The complainant wished him and told him that he had brought the four typed copies of the application as per his direction. Then the complainant gave two copies to the accused who pinned them and kept on the table. Thereafter the accused asked them to go for tea. The complainant, the accused and the panch Armarkar then went to Vijay Restaurant for taking tea. While taking tea, the accused told the complainant that his arrears will come to Rs. 1,000/- Rs. 1,500/- and he would do his work. Thereafter the accused asked them to go for tea. The complainant, the accused and the panch Armarkar then went to Vijay Restaurant for taking tea. While taking tea, the accused told the complainant that his arrears will come to Rs. 1,000/- Rs. 1,500/- and he would do his work. After taking tea they came near the betel leave shop for cigar and betel leave. Then the accused asked the complainant to handover the money upon which the complainant removed the currency notes from his pant pocket and while they crossed some distance and reached near the board of Mandal Lekha Pariksha the accused accepted the currency notes from the complainant. The accused counted the currency notes by his both hands and then put the same in his right back side pant pocket. After acceptance of the money, he informed the complainant that the work would be carried out and then he went ahead. (e) Immediately thereafter the complainant had made a signal by putting his handkerchief on his head. The members of the raiding party rushed to the spot. One constable caught hold the hands of the accused. P. I. Sharma disclosed his identity and also that of the other members of the raiding party to the accused. Solution of sodium carbonate was prepared and besides the complainant and the accused, the fingers of all members were tested in that solution and the colour of the solution did not change. Therefore it was thrown away. A fresh solution of sodium carbonate was prepared and the fingers of one hand of the accused were dipped into it and it was found that the colour of the solution changed to purple. This solution was taken in one bottle and it was sealed on the spot. Thereafter again a fresh solution of sodium carbonate was prepared and the fingers of the other hand of the accused were dipped into it and it was found that the colour of the solution changed to purple. This solution was collected in another bottle and it was also seized on the spot. (f) On instructions of P. I. Sharma, the panch Dilip (P. W. 2) removed the currency notes from the back side pant pocket of the accused and the numbers of those currency notes were tallied. This solution was collected in another bottle and it was also seized on the spot. (f) On instructions of P. I. Sharma, the panch Dilip (P. W. 2) removed the currency notes from the back side pant pocket of the accused and the numbers of those currency notes were tallied. A fresh solution of sodium carbonate was prepared and was sprinkled on those currency notes and it was found that purple colour dots appeared on them. Those currency notes were put in one envelop which was duly sealed and seized. Again a fresh solution of sodium carbonate was prepared and the right hand fingers of the complainant were dipped in it but the colour of the solution did not change. Again a fresh solution of sodium carbonate was prepared and the left hand fingers of the complainant were dipped in it and the colour changed to purple. This solution was taken in another bottle and it was sealed. Then a fresh solution of sodium carbonate was prepared and it was sprinkled inside the pant pocket of the complainant and purple colour dots appeared. Again fresh solution of sodium carbonate was prepared and it was sprinkled on the back side pant pocket of the accused and purple colour dots had appeared. P. I. Sharma then seized all these articles and also seized the copies of the application from the accused which were received from the complainant. A detailed post trap panchanama vide Ex. 24 was prepared. P. I. Sharma then seized the muster roll, obtained the xerox copy of the same and also prepared the rough sketch of the spot (Ex. 32 ). He then lodged written complaint at police station Sadar vide Ex. 46. On the basis of the said complaint P. S. O. P. S. Sadar registered Crime No. 520 of 1997. P. I. Sharma recorded the statements of the complainant and the panchas and also prepared the panchanama in his office and as the accused was a Central Govt. employee, the papers were handed over to C B. I Bariya (P. W. 4) the inspector of C. B. I. received the papers verified the statements and recorded the statements of some of the witnesses, so also got the accused medically examined so as to ascertain his hearing capacity, obtained the medical opinion, sent hand wash to Central Forensic Science laboratory for analysis and report. He then obtained sanction for the prosecution from the competent authority and thereafter filed the charge-sheet. ( 3 ) CHARGE was framed and it was duly explained to the accused to which he pleaded not guilty and therefore the trial proceeded with. The prosecution has examined four witnesses in order to bring home guilt to the accused. Out of them, Vijaykumar (P. W. 1) is the complainant whereas Dilip (P. W. 2) is the panch witness through whom the case of the prosecution has been unfolded. The defence of the accused is that he has been falsely implicated in this trial and it was not his duty to forward the application claiming arrears of salary to the superior officers and he only helped the complainant to check the contents of the application and asked him to get it typed. In support of the defence, he has examined two witnesses, namely Ramdas Deshbratar (D. W. 1) and Ganpat Sakhare (D. W. 2) who are also the employees in the Railway. The learned Special judge on appreciation of the evidence has recorded the finding that the accused had demanded Rs. 50/- and accepted the same as gratification from the complainant on 17-9-1987 which was not legal remuneration due to him; that the accused has accepted Rs. 50/- as a motive or reward for doing official work, that is to secure order for pay of suspension period; that the accused being public servant used corrupt or illegal means or otherwise abused his position and obtained pecuniary advantage of Rs. 50/- for himself. The learned trial Judge also held that the sanction obtained for the prosecution is valid and held the accused guilty of the offences punishable under Section 161 of Indian Penal Code and under Section 5 (1) (d) of Prevention of Corruption Act. Consistent with these findings the learned special Judge convicted the accused and sentenced him as mentioned above. This judgment and order of conviction is under challenge in this appeal. ( 4 ) THE questions which require consideration in this appeal are - whether the accused had accepted Rs. 50/- as gratification from the complainant on 17-7-1987 which was not the legal remuneration due to him; whether the accused had put forth the demand and accepted Rs. This judgment and order of conviction is under challenge in this appeal. ( 4 ) THE questions which require consideration in this appeal are - whether the accused had accepted Rs. 50/- as gratification from the complainant on 17-7-1987 which was not the legal remuneration due to him; whether the accused had put forth the demand and accepted Rs. 50/- as a motive or reward for doing the official work, i. e. to secure order for pay of suspension period of the complainant; whether the accused being public servant used a corrupt or illegal means or otherwise abused his position, obtained pecuniary advantage of rs. 50/- ? ( 5 ) MR. Gaikwad, learned counsel, for the accused submitted that this is a case wherein the demand and acceptance of illegal gratification has not been duly proved. He contended that the currency notes were thrusted into the pant pocket of the accused by the complainant and the panch and that too forcibly. He contended that the complainant is a blackmailer and was known as mischievous in his office and he has falsely implicated the accused especially when it was not at all the duty of the accused to forward his application in which the claim for arrears of salary of suspension period was put forth. He contended that the work of forwarding the application was not entrusted to the accused whereas it was with one Mrs. Meena Sharma. He contended that the testimony of complainant Vijaykumar is not consistent with the contents of the complaint (Ex. 18) and the post trap panchanarna (Ex. 24 ). He contended that the testimony of the complainant has not been corroborated in material particulars by the evidence of panch witness Dilip (P. W. 2 ). He contended that this is a case wherein no independent witness has been examined to prove the demand and acceptance. He contended that the prosecution has miserably failed to make out the case as has been disclosed in the charge framed by the learned Special judge. He contended that the accused only had helped the complainant to check the contents of the application and asked him to get it typed on 17-7-1987. He contended that the prosecution has to stand on its own legs and cannot take the advantage of the weakness in the defence. He contended that the accused only had helped the complainant to check the contents of the application and asked him to get it typed on 17-7-1987. He contended that the prosecution has to stand on its own legs and cannot take the advantage of the weakness in the defence. He contended that there is no substantive evidence on record to prove that the accused had demanded Rs. 50/- as illegal gratification and that he has accepted it. He contended that the Court on its own cannot make out a new case for the prosecution and convict the accused on that basis. When the substratum of the evidence given by the eyewitnesses examined by the prosecution was found to be false the only remedy in the circumstances left for the Court was to throw out the prosecution case in its entirety. In support of these submissions the learned counsel relied on the decision of Apex Court in the case of Bhagirath Vs. State of M. P. reported in 1975 SCC (Cri) 742. ( 6 ) THE learned counsel for the appellant further contended that this is a case wherein no presumption can be drawn under section 4 (1) of Prevention of Corruption Act for want of proof on record to show that the accused had demanded the illegal gratification of Rs. 50/- and accepted the same for doing any official act. He contended that in the circumstances the charge under Section 161 of Indian Penal Code as well as the charge under section 5 (1) (d) read with Section 5 (2) of the prevention of Corruption At must fail and the appeal may kindly be allowed by setting aside the impugned judgment and order of conviction being the same not sustainable in law. ( 7 ) THE learned A. P. P. contended that the evidence of the complainant Vijaykumar and panch witness Dilip is quite consistent with each other and it would clearly reveal from their evidence that the accused had demanded illegal gratification of Rs. 50/- for forwarding the application of the complainant to the competent authority for sanction of the arrears of salary for the suspension period. He contended that the complainant was not willing to give bribe and, therefore, he approached the Anti corruption Bureau and lodged the complaint. 50/- for forwarding the application of the complainant to the competent authority for sanction of the arrears of salary for the suspension period. He contended that the complainant was not willing to give bribe and, therefore, he approached the Anti corruption Bureau and lodged the complaint. He contended that P. I. Sharma reduced the complaint of the complainant into writing and then called two panch witnesses and prepared the pre trap panchanarna in his office and gave the instructions which was written down in the pre trap panchanarna. He contended that thereafter the complainant, the panch witnesses, P. I. Sharma and the members of the raiding party went to the office of the accused who initially did not demand the amount of Rs. 50/- at once but suggested the complainant to come for tea in one hotel. He contended that while returning from the hotel after having tea, the accused demanded the amount and the complainant had paid the amount which was accepted by the latter and kept in his pant pocket. He contended that the evidence of the complainant Vijaykumar and panch witness Dilip is quite consistent with the circumstances to prove the demand put forth by the accused for illegal gratification and acceptance of the same is complete while returning from the hotel. He therefore contended that the testing of the fingers of both the hands of the accused and his pant pocket in the solution of sodium carbonate is relevant and would clearly show that the accused had demanded and accepted the bribe of Rs. 50/ -. He, therefore contended that the prosecution has proved its case beyond reasonable doubt and, therefore, the impugned judgment and order of conviction passed by the Special Judge is perfectly just, legal and correct and no indulgence of this Court is warranted and the appeal may kindly be dismissed. ( 8 ) THIS Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not at all in dispute that in the year 1987 the complainant Vijaykumar was working as permanent Way Inspector in Central Railway of Nagpur, whereas the accused was working as Office Superintendent in the Engineering branch. Divisional Manager's office of Central railway. It is also not in dispute that the complainant was under suspension for the period 30-11-1981 to 26-12-1981. Divisional Manager's office of Central railway. It is also not in dispute that the complainant was under suspension for the period 30-11-1981 to 26-12-1981. It is also not in dispute that the complainant had submitted application for demanding the arrears of salary of the suspension period because his services were restored and he had joined his duty on 26-12-1981. It is not disputed that the arrears of salary were not paid at all till me year 1987 by the department. ( 9 ) THE evidence of the complainant vijaykumar would reveal that on 13-7-1987 he met the accused and requested him to forward his application to the proper authority. After his request the accused told him that the payment for suspension period would be around Rs. 1,000/ -. The complainant replied that this was the excessive amount which was being claimed. Lastly the accused demanded Rs. 50/- and said that he would forward his application. On 16-7-1987 he had submitted the application in his own hand writing to the accused. The latter had gone through the contents of the application and made some corrections in red ink, thereafter took one paper from his table and wrote the complete application (Ex. 16) and gave it to the complainant. Another document (Ex. 17) was written by the accused. The latter advised the complainant to get four typed copies of this application which was written by him and submit the same before him along with rs. 50/-on 17-7-1987. ( 10 ) THE complainant's evidence further reveals that on 17-7-1987 he went to the Anti Corruption Bureau and submitted the aforesaid two applications along with his written complaint (Ex. 18) which was reduced into writing as the complainant was not willing to give bribe. Thereafter P. I. Sharam called two panch witnesses, pre trap panchanama was prepared and necessary instructions were given to the complainant and the panch witnesses and the currency notes on which phenophthalein powder was applied were kept in the left side pant pocket of the complainant with clear directions that he should hand over the sameto the accused only on demand. Thereafter the raiding party along with the complainant and the panch witnesses proceeded to the office of the accused. The accused was found in the chair. The complainant wished him and told him that he had brought the four typed copies. Thereafter the raiding party along with the complainant and the panch witnesses proceeded to the office of the accused. The accused was found in the chair. The complainant wished him and told him that he had brought the four typed copies. Then those copies were pinned put on the table and the accused suggested that they should go for tea. Accordingly the accused, the complainant and panch Armarkar went into vijay Restaurant for tea. While taking tea the accused told the complainant that the arrears will come to around Rs. 1,000/- or Rs. 1,500/- and he would carry out the work. The complainant paid the tea charges and they went to the betel leave shop where they had cigar and betel leave (pan ). The accused at that time asked the complainant to give the money. The currency notes from the left side pant pocket of the complainant were removed by him by his left hand, but as the accused told him to wait after seeing around and crossing some distance, accepted the amount from the complainant which was in his hand near the board of Mandal Lekha Pariksha. The accused counted the currency notes by his both hands and then put the same in his right back pocket of the pant. At that time the complainant had given signal by putting handkerchief on his head as directed by P. I. Sharma. Thereafter the raiding party rushed to the spot and caught the accused red handed. The currency notes from the back pocket of the pant of the accused were taken out in presence of the panchas. ( 11 ) THE evidence of complainant vijaykumar and Dilip (P. W. 2) would further reveal that the solution of sodium carbonate was prepared and the fingers of the members of the raiding party were dipped in that solution, but the colour of the solution did not change. The solution was thrown away. Again a fresh solution of sodium carbonate was prepared and the fingers of left hand of the accused were dipped in it and it was found that the colour of the solution was changed to purple. This solution was collected in another bottle and it was duly sealed. The solution was thrown away. Again a fresh solution of sodium carbonate was prepared and the fingers of left hand of the accused were dipped in it and it was found that the colour of the solution was changed to purple. This solution was collected in another bottle and it was duly sealed. Fresh solution of sodium carbonate was prepared and the right hand fingers of the accused were dipped into it and it was found that the colour of the solution was changed to purple. The solution was collected in another bottle and it was duly sealed on the spot. Then police had removed the currency notes from the back side pant pocket of the accused. Again fresh solution of sodium carbonate was prepared and it was sprinkled on those currency notes and purple colour dots had appeared on those currency notes. Police seized those currency notes and put them in one envelop. Thereafter a fresh solution of sodium carbonate was prepared and the left hand fingers of the complainant were dipped in it and the colour of the solution had changed to purple. Again a fresh solution of sodium carbonate was prepared and sprinkled inside the left pocket of the pant of the complainant and it was found that purple colour dots had appeared. ( 12 ) SO far as the aforesaid factual circumstances are concerned the evidence of complainant Vijaykumar (P. W. 1) and Dilip (P. W. 2) is quite consistent with each other and would clearly show that there was a demand of Rs. 50/- which was accepted at the time of the trap. The solution of sodium carbonate which was collected as aforesaid, in separate bottles was forwarded to chemical analyser for the purpose of examination and analysis. The report of chemical analyser (Ex. 33) would reveal that the following articles were sent for analysis : (1) One sealed bottle containing 110 ml. Approx. light pink colour liquid with sediments said to be right hand wash of the accused marked as Ex. No. l. (2) One sealed bottle containing 65 ml. (approx) light pink colour liquid with sediments said to be left hand wash of the accused marked as Ex. No. 2. (3) One sealed bottle containing 75 ml. (approx) light pink colour liquid with sediments said to be left hand wash of the complainant marked as Ex. No. 3. No. l. (2) One sealed bottle containing 65 ml. (approx) light pink colour liquid with sediments said to be left hand wash of the accused marked as Ex. No. 2. (3) One sealed bottle containing 75 ml. (approx) light pink colour liquid with sediments said to be left hand wash of the complainant marked as Ex. No. 3. (4) One sealed packet having gray colour pant of the accused marked as Ex. No. 4. ( 13 ) THE report of chemical analyser would further reveal that Exs. 1, 2, 3 and 4 gave positive test for phenolphthalein and sodium carbonate. This circumstance clearly corroborates the case of prosecution in material particulars. It is not disputed that while preparing the pre trap panchanama, phenolphthalein powder was applied to the currency notes and the said currency notes were recovered from the pant pocket of the accused, for which necessary preliminary tests were carried out by P. I. Sharma in presence of panch witnesses and thereafter the solution of sodium carbonate were collected in separate bottles which were duly sealed on the spot. It is not the case of the accused that there was any tampering with these articles and, therefore, there is no reason as to why the report of the chemical analyser, which is positive for the test of phenolphthalein and sodium carbonate, should not be considered as a sufficient corroboration to the testimony of complainant vijaykumar and panch witness Dilip. ( 14 ) IN such circumstance, it is not possible to accept the defence that has been put forth by the accused. Ramdas Deshbhartar (D. W. I) was working as Office Superintendent through whom it was tried to be suggested that the work of forwarding the application was not entrusted to the accused. Ganpat (D. W. 2) is the witness who was working as Office superintendent in the Engineering Branch of central Railway and he has been examined to show the same thing. However, attempt has been made to bring on record that because the complainant is a blackmailer and mischievous person he has falsely implicated the accused. In this context it is relevant to note that even if it is accepted that the complainant was a mischievous person, there is no evidence on record to show that at any time he had indulged in blackmailing. In this context it is relevant to note that even if it is accepted that the complainant was a mischievous person, there is no evidence on record to show that at any time he had indulged in blackmailing. There is no evidence on record to show that by his mischievousness he has done some wrong to any of the person who were working in the same office. In such circumstances, it is not possible to accept that the complainant would falsely implicate the accused. ( 15 ) WHAT is significant to note is that in the cross-examination of complainant vijaykumar, the following circumstances have been brought on record - "true it was the duty of the accused to forward my application to DRM Office (Works) and not to get the sanction. I had submitted the application but the accused had not passed the receipt. On 17-7-19871 had submitted the typed application. " ( 16 ) THE aforesaid material elucidated in the cross-examination would clearly go to show that the accused must have put forth the demand of illegal gratification in order to forward his application to DRM Office. There is absolutely no evidence on record to show that the accused had only helped the complainant in drafting the application and getting it typed. There is absolutely no evidence to show that the currency notes were thrusted into the pant pocket of the accused especially when the evidence of the complainant clearly show that there was a demand and acceptance of illegal gratification which is corroborated in material particulars by the evidence of panch witness Dilip and the findings of chemical analyser. ( 17 ) ON close scrutiny of the evidence and perusal of the judgment of the learned special Judge, it would clearly reveal that the special Judge has considered the evidence in proper perspective and has also taken into consideration the presumption available to the prosecution under Section 4 (1) of the prevention of Corruption Act. Section 4 contemplates the presumption where public servant accepts gratification other than legal remuneration. Section 4 contemplates the presumption where public servant accepts gratification other than legal remuneration. ( 18 ) IN order to raise the presumption under Section 4 (1) what the prosecution has to prove is that the accused has received gratification other than legal remuneration and when it is shown that he has received certain sum of money which was not a legal remuneration then the condition prescribed by the section is satisfied and the presumption thereunder must be raised. To rebut the presumption there must be an explanation which must be true and not merely plausible. The burden which rests on the accused is not as onerous as that cast on the prosecution to prove its case. But this burden on the accused is to be discharged by bringing on record evidence circumstantial or direct which establishes with the reasonable probability that the money was accepted by the accused other than as motive or reward such as is referred under Section 161. If the bribe offered to a public servant to perform the official act or show tavour in exercise of his official function or render any service with any public servant the offence punishable u/s. 161, I. P. C. is complete and it is immaterial whether the public servant is or is not actually in a position to do the act or show favour or render service which he offered to him. ( 19 ) IN the present case, the evidence would clearly reveal that the accused had accepted Rs. 50/- as gratification from the complainant Vijaykumar on 17-7-1987 which was not a legal remuneration due to him; that the prosecution has proved that the accused accepted the sum of Rs. 50/- as a motive or reward for doing official work that is to secure order for pay of suspension period of the complainant by forwarding his application to the DRM office (Works); and that the accused was admittedly a public servant and used corrupt or illegal means otherwise abused his position, obtained pecuniary advantage of Rs. 50/ -. Therefore, the learned Special Judge was perfectly justified in recording the conviction of the accused for the offence punishable under section 161 of Indian Penal Code and under section 5 (1) (d) read with section 5 (2) of prevention of Corruption Act, 1947 and no interference into the impugned judgment and order of conviction is warranted. 50/ -. Therefore, the learned Special Judge was perfectly justified in recording the conviction of the accused for the offence punishable under section 161 of Indian Penal Code and under section 5 (1) (d) read with section 5 (2) of prevention of Corruption Act, 1947 and no interference into the impugned judgment and order of conviction is warranted. ( 20 ) IN the result, this Court finds no merit in the appeal and the same is dismissed. As the accused is on bail, he is directed to surrender to his bail before the trial Court on 14-2-2005 and the trial Court shall on his surrender commit him to the prison for undergoing the sentence. If the accused fails to surrender on the due date, the trial Court shall secure the presence of the accused through Superintendent of Police and thereafter shall commit him to the prison for undergoing the sentence. C. C. Expedited. Appeal dismissed.