JUDGMENT :- This appeal is tiled against the Judgment and order of Special Case No. 6/87 which was pending in the court of Special Judge, Chandrapur. The trial Court has acquitted the respondent of the offences punishable under section 5(1)(d) r/w 5(2) of the Prevention of Corruption Act, 1947 and of the offence punishable under section 161 of the Indian Penal Code. 2. In short, the facts leading to the institution of the present proceedings can be stated as follows: The original complainant Laxman is an illiterate villager. He hails from remotely placed village from Chandrapur District. On 3.3.1986 he had quarrel with one Anandrao Pal of his village. After the quarrel, he learnt that Anadrao Pal was searching for him an.d he was moving with a stick. Due to apprehension of Anandrao Pal, the complainant first went to the Ex-sarpach of the village and from him he got written a report against Anandrao Pal. He also got a letter of village sarpanch against said Anandrao Pal and with these two documents he went to Gondpipri Police Station at about 2.00 p.m. on 4.3.1986. 3. The accused was attached to this Police Station as a Police Head Constable. The accused received the report as he was In-charge of station diary. Anandrao Pal was already present in the Police Station. After reading the report of the complainant, the accused started giving abuses to the complainant. Accused gave two slaps to the complainant and he gave threat to the complainant that the complainant would be sent behind bars. The accused then took the complainant to a room where he assaulted the complainant with baton on his back. Thereafter, the accused told the complainant that, the complainant should give him Rs 500/- otherwise the complainant would be kept behind bars. Due to fear, the complainant agreed to pay Rs. 200/-. He had no capacity to pay more amount. On that day, the complainant was having an amount of Rs. 25/- with him and accused took Rs. 20/- from that amount. Accused allowed the complainant to leave the police station but the complainant was warned to return with the amount of Rs.200/- and threat was given that if the amount was not paid, the complainant would be sent behind bars. The complainant approached the A.C.B. Office, Chandrapur on 6.3.86 and he gave complaint against the accused. 4. Mohd. Accused allowed the complainant to leave the police station but the complainant was warned to return with the amount of Rs.200/- and threat was given that if the amount was not paid, the complainant would be sent behind bars. The complainant approached the A.C.B. Office, Chandrapur on 6.3.86 and he gave complaint against the accused. 4. Mohd. Yasin was working as Deputy Superintendent of Police in A.C.B. Office. After receipt of the complaint, he prepared a plan of action. He collected two independent panch witnesses from S.D.O. Irrigation Department. He gave information to the panch witnesses about the complaint. He arranged to give demonstration of use and detection of phenolphthalein powder (for short, the powder) to the panch witnesses and to the complainant. The amount of Rs. 200/- (one currency note of Rs. 100/- denomination and two currency notes of Rs.50/- denominations) were supplied by the complainant for the trap. The powder was applied to these currency notes and numbers of these notes were noted in pre-trap panchanama. The wad of these three notes was kept in the chest pocket of the shirt of the complainant. The remaining articles were kept in one fold of dhoti which complainant was wearing. As per the plan, the panch witness Mr. Khobragade was to remain in the company of complainant as the shadow witness and the other witness was to be with the police officers. Specific instructions were given to the complainant not to touch tainted notes till there was a demand of money from the accused. The pre-trap panchanama was prepared accordingly in the office of A.C.P. 5. Mohd. Yasin took the panch witnesses, complainant and he went along with the required articles to Gondpipri in a jeep. The vehicle was stopped at some distance from the police station and from there the complainant and panch witness Shri Khobragade went on foot towards the police station. The other members of the trap team followed them by keeping sufficient distance. After reaching near the Police Station, the complainant noticed that the accused was present in front of the Police Station but beyond the road and near a garage. After seeing the complainant, the accused gave a call to him and accused called the complainant to that side of the road. While proceeding towards that side, the complainant informed Shri Khobragade that the accused was the same police officer who had demanded the bribe. After seeing the complainant, the accused gave a call to him and accused called the complainant to that side of the road. While proceeding towards that side, the complainant informed Shri Khobragade that the accused was the same police officer who had demanded the bribe. 6. When the complainant and the other panch witness reached near the Moped of the accused, the accused asked the complainant whether the complainant had brought the amount of Rs. 200/- which was demanded by the accused. The complainant replied in the affirmative. The complainant, the accused and the panch witness then walked few steps away from the Moped and near the Nag Temple which is situated few feet away from the garage, the accused gave assurance to the complainant that no action will be taken against the complainant. There, the accused again demanded an amount of Rs. 200/- from the complainant and the complainant handed over the tainted money to the accused. The accused kept this amount in left pocket of his payajama and from there they again came near the Moped. There, the complainant gave pre-decided signal to the raiding party. 7. When the officers of the raiding party proceeded towards the spot from the distance of about 100 ft., accused realized that there was something wrong. He immediately sat on the Moped and asked the complainant and witness also to sit on the Moped as pillion riders and he started the Moped. The complainant and the witness refused to sit on the Moped. The accused tried to flee from the place but the officers of A.C.B. obstructed the accused and held his hands. Mohd. Yasin gave his introduction and introduction of the panch witnesses to the accused. 8. During the further action, both the hands of the accused were tested for detection of the powder. When asked, the accused admitted that he had accepted the amount of Rs. 200/- and he had kept the amount in the left pocket of his payajama. He produced the amount before Mohd. Yasin. Numbers of these three currency notes tallied with the numbers which were noted in the pre-trap panchanama. The powder was detected on these notes also. The solution used for testing the notes and the right hand was preserved separately. Mohd. He produced the amount before Mohd. Yasin. Numbers of these three currency notes tallied with the numbers which were noted in the pre-trap panchanama. The powder was detected on these notes also. The solution used for testing the notes and the right hand was preserved separately. Mohd. Yasin allowed the accused to go to his house to bring payajama as payajama which was on the person of the accused was to be taken over. The payajama was then taken over and it was tested for the powder. The powder was detected on the payajama also. All these articles were taken over. 9. Mohd. Yasin then took the accused to the Police Station for collecting the relevant record. The accused produced the report of Anandrao, MLC in respect of Anandrao, report given by the complainant and the letter given in support of the complainant by village sarpach. These articles were taken over under post-trap panchanama. Mohd. Yasin gave report about this incident in the same Police Station and the crime came to be registered. 10. The remaining investigation was also made by Mohd. Yasin. He recorded the statements of the panch witnesses, members of the trap team and also of the complainant. He referred the complainant for medical examination and MLC in respect of the medical examination made on the day of incident was collected. Injuries were found on the back of the complainant. The articles like the solution used for testing currency notes, payajama etc. were sent to C.A. office. Powder was detected on the payajama, currency notes and in the solution used for testing right hand of the accused and the right hand of the complainant. Mohd. Yasin then submitted proposal for obtaining sanction to the Superintendent of Police, Chandrapur. The Superintendent of Police accorded sanction and then charge sheet came to be filed for the aforesaid offences. 11. In the trial court, the prosecution has examined the complainant (P.W.2), Shri Khobragade (P.W.4), Sanctioning Authority (P.W.1), Mohd. Yasin (P.W.6) and the garage owner (P.W.7). Some other witnesses are also examined but they are not the material witnesses. In the trial court, accused took a defence of total denial. No explanation whatsoever was given in respect of the recovery of tainted money from his possession. 12. The trial court has disbelieved all the aforesaid witnesses of the prosecution. Yasin (P.W.6) and the garage owner (P.W.7). Some other witnesses are also examined but they are not the material witnesses. In the trial court, accused took a defence of total denial. No explanation whatsoever was given in respect of the recovery of tainted money from his possession. 12. The trial court has disbelieved all the aforesaid witnesses of the prosecution. The trial Court has observed that the circumstance that no powder was detected on the left hand of the accused has created doubt about the case of the prosecution. The trial court has observed that the complainant was not sure about the police officer, constable who had demanded the bribe as he was not knowing the name. The trial court has observed that the witnesses have not correctly described the spot where bribe was accepted. The trial court has observed that it is not probable that the accused accepted the amount by using right hand and kept the amount in the left pocket of his payajama by using the same hand. When it was not the defence of the accused, the trial court has observed that there is a probability that the amount was thrusted or planted. 13. It was, submitted for the State that there was no reason for an illiterate person like the complainant to falsely implicate the accused in such a case. It was submitted that no other witness had also interest against the accused or in favour of the complainant. It was submitted that minor inconsistencies, which have not created any doubt about the case of the prosecution, are used by the trial court for giving acquittal. It was submitted that the tainted money was recovered from the possession of the accused and there is circumstantial check to the case of the prosecution. It was submitted that the presumptions available under law against the accused are not at all considered by the trial court. On the other hand, it was submitted for the respondent that the view taken by the trial court is-a reasonable and possible view and there is no scope to interfere in the decision of the trial court. 14. The complainant Laxman (P. W.2) has given evidence that on the first day when he visited the Police Station and handed over the report to the accused, the accused became angry with him. 14. The complainant Laxman (P. W.2) has given evidence that on the first day when he visited the Police Station and handed over the report to the accused, the accused became angry with him. The report at Exh.24 was produced by the accused during post-trap panchanama from the police Station and it is proved in the evidence of the complainant. The complainant has given evidence that on that day his rival Anandrao Pal was already present in the Police Station. He has deposed that the accused gave beating to him by using stick (baton). He has given evidence that the accused gave threat to him to send him behind the bars. He has given evidence that the accused then demanded bribe of Rs. 500/- from him for avoiding such action. He has given evidence that due to fear, he showed readiness to give him Rs. 200/-. He has deposed that on that day, an amount of Rs.25/- was on his person and out of that amount, accused took Rs. 20/- and allowed him to leave the Police Station. He has deposed that when he was leaving the Police Station, the accused again demanded Rs. 200/- and said that if the amount is not given, action will be taken against him. 15. The complainant (P.W.2) has deposed that on the 3rd day of the aforesaid incident, he went to A.C.B. office and gave report. He has given evidence that he had somehow collected the amount of Rs. 200/-. The report given to A.C.B. by the complainant is proved in his evidence as Exh. 25. This report is consistent with the aforesaid version given by the complainant and it gives corroboration to the version under section 157 of the Evidence Act. No contradiction is brought on record in relation to the documents at Exhs. 24 & 25. 16. The complainant (P.W.2) has given evidence on the formalities which were followed in ACB office and on preparation of the plan of action which is described in pre-trap panchanama. There is no dispute about that part of the evidence. The evidence on pre-trap panchanama is given by Shri Khobragade (P.W.3) and it is proved as Exh.27. The evidence of Shri Khobragade shows that both the panch witnesses were informed about the complaint and they got satisfied about the grievances of the complainant. 17. There is no dispute about that part of the evidence. The evidence on pre-trap panchanama is given by Shri Khobragade (P.W.3) and it is proved as Exh.27. The evidence of Shri Khobragade shows that both the panch witnesses were informed about the complaint and they got satisfied about the grievances of the complainant. 17. The complainant (P.W.2) has given evidence that as per the plan prepared by Mohd. Yasin, after reaching Gondpipri, he and Shri Khobragade walked towards the Police Station. He has deposed that he saw the accused near the garage which is situated opposite to the Police Station and he went there. He has deposed that the accused first asked him about said Khobragade and as per the plan he told that Khobragade was his son-in-law. He has deposed that the accused made a demand of money. He has deposed that he took out tainted money from the pocket of his shirt and tendered it to the accused. He has deposed that the accused accepted tainted money by using right hand and kept the amount in left pocket of his payajama by using left hand. He has given evidence that after acceptance of bribe money by the accused he gave pre-decided signal and then Police Officer rushed towards the spot where they were standing. He has given evidence that after acceptance of the money and after holding the accused by police, they were taken to the Police Station. 18. Shri Khobragade (P.W.3) has given evidence similar to the evidence of the complainant on the incident of demand of bribe by the accused and acceptance of bribe by the accused. He has deposed that the bribe money was accepted near the garage which is situated in front of the Police Station. Shri Khobragade has stated that from the first place where Moped was parked they walked few steps away towards Nag temple. The post-trap pachanama, which is duly proved shows that this temple is situated hardly at a distance of 10 feet from the first place. The evidence of Shri Khobrabade, however, shows that when signal was given, they all were again present near the garage, near the Moped. Surprisingly, the trial court has given much weight to this little inconsistency found in the evidence of Shri Khobragade and the complainant. 19. Shri Khobragade (P.W.3) has given evidence that on inquiry made by Mohd. The evidence of Shri Khobrabade, however, shows that when signal was given, they all were again present near the garage, near the Moped. Surprisingly, the trial court has given much weight to this little inconsistency found in the evidence of Shri Khobragade and the complainant. 19. Shri Khobragade (P.W.3) has given evidence that on inquiry made by Mohd. Yasin, the accused produced tainted money from the pocket of his payajama. He has given evidence that the hands of the accused were tested for powder and the powder was detected on both the hands. It can be said that the evidence of Shri Khobragade, in respect of detection of the powder on left hand, is not consistent with post-trap panchanama which is at Exh.33. In Exh.33 there is a mention that no powder was detected on the left hand of the accused. He has deposed that the numbers of three currency notes were tallied on the spot. He has given evidence on the seizure of tainted money under panchanama and he has given evidence that solution used for testing was taken over by police. 20. Shri Khobragade (P.W.3) has given evidence that in the Police Station, he accused produced record like report given by the complainant, letter of Sarpanch, report of Anandrao and M.L.C. in respect of Anandrao. He has given evidence that these documents were seized under separate seizure memo Exh.32. In the cross-examination of Shri Khobragade no contradiction was pointed out in relation to two panchanamas though there is aforesaid inconsistency in the substantive evidence and the contents of the panchanama. 21. Mohd. Yasin (P.W.6) has given evidence which is similar to the evidence of the complainant (P.W.2) and of Shri Khobragade (P.W.3). His evidence shows that after receiving signal, at about 5.00 p.m. they rushed to the spot. He has given evidence that accused produced tainted money from the left pocket of his payajama and numbers of these notes tallied with the numbers already noted in pre-trap panchanama. Mohd. Yasin has also tried to say that powder was detected on the left hand of the accused though there is no such mention in the panchanama. His evidence and the record show that solution used for testing the left hand of the accused was not preserved. The evidence of Mohd. Mohd. Yasin has also tried to say that powder was detected on the left hand of the accused though there is no such mention in the panchanama. His evidence and the record show that solution used for testing the left hand of the accused was not preserved. The evidence of Mohd. Yasin shows that the accused was allowed to go to home to bring other payajama as payajama which was on his person at the relevant time was to be taken over. Mohd. Yasin has given evidence on the preparation of post-trap panchanama and also on taking over of aforesaid articles and documents described by Shri Khobragade. The relevant seizure memos are duly proved. The evidence of Shri Khobragade and Mohd. Yasin does not show that they had any interest in favour of the complainant or against the accused. On the contrary, there is surprising circumstance that Mohd. Yasin had allowed the accused to go to his house for bringing Payajama. Mohd. Yasin gave report (Exh.43) in Gondpipri Police Station. This report is consistent with the version of Mohd. Yasin. 22. Shri Deorao- P.S.I., who was attached to the Police Station, has given evidence that the accused was station diary in-charge on 4.3.1986 the date on which the first incident took place. He has given evidence in respect of the record like report given by Anandrao. His evidence is consistent with the evidence of the complainant and other witnesses. 23. Record seized by Mohd. Yasin (P.W.6) shows that on 4.3.1986 the report was given by Anandrao against the accused that he was beaten by the complainant. MLC dated 3.3.1986 shows that simple injury like abrasion clotted with blood was found over the forehead of Anandrao. The document does not show that any crime was registered on the basis of this report either on 4.3.1986 or subsequently. Thus, the case would have been treated as non-cognizable case. On 6.3.1986 after the aforesaid incident, the complainant was referred for medical examination. Contusion on the back of the complainant was found. Its colour was blackish red and the age of the injuries was more than 24 hours. The complainant was examined at 7.40 p.m. on 6.3.1986. This record is consistent with the version of the complainant that he had approached Police Station on 4.3.1986 and on that day beating was given to him. Its colour was blackish red and the age of the injuries was more than 24 hours. The complainant was examined at 7.40 p.m. on 6.3.1986. This record is consistent with the version of the complainant that he had approached Police Station on 4.3.1986 and on that day beating was given to him. This record also shows that there was a report of Anandrao against him and so there was a threat of action to him. In any case, due to the position which the accused was holding, it was possible for the accused to create a show that he was in a position to send the complainant behind the bars on the basis of the report of Anandrao. In such circumstances, the person like the complainant, the ordinary layman who is also illiterate is bound to feel that he can be sent behind the bars in such a case. 24. The aforesaid evidence shows that there is the corroboration of both direct evidence and circumstantial evidence to the version of the complainant. If there was no demand made by the accused, there was no reason for the complainant to approach A.C.B. office. If the accused had no intention to extract money, he could have told the complainant on 4.3.1986 itself that the case would be treated as non-cognizable case. The complainant has come with a specific case that amount of Rs 200/- was demanded from him by the accused and evidence shows that such amount was accepted by the accused during the trap. There is a corroboration of evidence of recovery of the tainted money from the possession of the accused and there is a corroboration of other circumstances like recovery of the aforesaid record from the custody of the accused. 25. The last witness Mr. Ramesh (P.W.7) has given evidence that in front of his garage some incident did take place in which some persons had rushed at the accused. He has not given any other evidence. So his evidence is of no use either to the prosecution or to the accused. 26. I n the statement under section 313 of Cr.P.C. the accused has only denied everything. No specific defence as such is taken by the accused and no explanation at all is offered by him in respect of tainted money shown to be recovery from his possession. 26. I n the statement under section 313 of Cr.P.C. the accused has only denied everything. No specific defence as such is taken by the accused and no explanation at all is offered by him in respect of tainted money shown to be recovery from his possession. Surprisingly, no suggestions were given to the aforesaid witnesses with respect to the tainted money like thrusting of the amount in his pocket or planting of the money. In spite of these circumstances, the trial court has held that there is a probability that the amount was thrusted or planted. This shows that most casual approach was used by the trial court. 27. The evidence on record does not show that there is any discrepancy as regards the spot described by both the complainant (P.W.2) and panch witness Shri Khobragade (P.W.3). It is already observed that the incident took place near the garage situated in the front of the Police Station and there is only a road between these two places. The temple of Nag is situated at the distance of less than 10 feet from the garage. In view of this circumstance, the description of the spot given by the two witnesses cannot be called as not consistent with each other and the evidence discussed already has not created reasonable doubt about the case of the prosecution. 28. In the cross examination of Mohd. Yasin (P.W.6) it is brought on record that he had experience of hardly one or two trap cases. His evidence shows that he did not preserve hand wash solution used to test the hands of others and even left hand of the accused for powder. The panchanama and the evidence of Mohd. Yasin show that he allowed the accused to go to his house for bringing other clothes. Though there is mention that some constable was sent with him, the panch witness was not sent. In the cross examination of the complainant, it is brought on record that Mohd. Yasin - the Police Officer had asked the question to the accused like "Do you not desire to serve and have you taken money." It appears that to this, some answer was given by the accused and the complainant had given evidence on that answer also. In the cross examination of the complainant, it is brought on record that Mohd. Yasin - the Police Officer had asked the question to the accused like "Do you not desire to serve and have you taken money." It appears that to this, some answer was given by the accused and the complainant had given evidence on that answer also. Surprisingly, the trial court has not recorded the said answer and it is observed that such evidence is hit by section 162 of Cr.P.C.. Whether, that part of the evidence is hit or is not hit needs to be decided at all levels like the present level and it could have been ascertained as to whether that part of the evidence can be used under section 8 of the Evidence Act. This circumstance also throws light on the approach and other things like the manner in which the trial was conducted. 29. These circumstances have created probability that either investigation was defective due to incompetency of Mohd. Yasin or there was some positive mischief played to help the accused. This court has no hesitation to hold that in such a case it becomes the job of the court to be on guard and to properly appreciate the evidence. If there is other convincing evidence, the Court can very well ignore circumstance like absence of powder on the left hand of the accused. If such approach is not adopted, it will be playing in the hands of the Investigation Officer. Such things happen when the complainant is an illiterate person and he has no support of anybody. If such approach is not adopted, the things will be more difficult day by day. So, this court holds that the aforesaid circumstance on which the trial court has relied can be very well ignored. This court has no hesitation to hold that the other evidence is convincing and has circumstantial check. The evidence of the prosecution is definitely sufficient to prove that there was a demand of bribe, accused was in a position to extract money and the accused did accept the money of bribe demanded by him during the trap. 30. The trial court has not considered the effect circumstance of the recovery of tainted money from the possession of the accused. 30. The trial court has not considered the effect circumstance of the recovery of tainted money from the possession of the accused. The trial court has not considered the use and implication of Section 114 of the Evidence Act and section 4 of the Prevention of Corruption Act, 1947. 31. The charge was framed against the accused for the offence punishable under section 5(1)(d) r/w 5(2) of Prevention of Corruption Act, 1947 and also for offence punishable under section 161 of the Indian Penal Code. Let us see what the prosecution was required to prove in this case. Section 5(1)(d) of Prevention of Corruption Act, 1947 runs as under: "5.(1) A public servant is said to commit the offence of criminal misconduct— (d) If he, by corrupt or illegal means or by otherwise, absuing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, (or). (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine." 32. Thus, for proving offence under section 5(1)(d), the prosecution is required to prove only two things like (i) the accused used his official position, post of station diary officer, post of Government servant and (ii) accused extracted, obtained the amount of Rs. 200/- from the complainant. It was not necessary for the prosecution to prove that there was some work of the complainant and for doing that work this amount was obtained by the accused. This section simply prohibits a public servant from obtaining any valuable thing or pecuniary advantage and it is a kind of misconduct of public servant. 33. In the case reported in AIR 1980 Supreme Court, 873 (Hazari Lal vs. The State (Delhi Administration), the Apex Court has discussed Section 3 and 114 of the Evidence Act. It is observed by the Apex Court that the act of "obtaining" can be proved both by direct or circumstantial evidence. In that case also, there was a charge for the offence under section 5(1)(d) of Prevention of Corruption Act, 1947. For the State, a case reported in 2001 Cr.L.J., 515 (SC) : [2001 ALL MR (Cri) 565 (S.C.)] (M.Narsinga Rao vs. State of AP) was cited. In that case also, there was a charge for the offence under section 5(1)(d) of Prevention of Corruption Act, 1947. For the State, a case reported in 2001 Cr.L.J., 515 (SC) : [2001 ALL MR (Cri) 565 (S.C.)] (M.Narsinga Rao vs. State of AP) was cited. In this case, the Apex Court has discussed section 3 of the Evidence Act in relation to the observations made in one English Case. Section 3 of the Evidence Act runs as under: "Proved--- A fact is said to be proved when, after considering the matters before it, the Com1 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." 34. Section 3 of Evidence Act shows that fact can be proved in two ways and in both the cases, there is discretion to the court. The Court may presume the existence of any fact i.e. the fact to be proved which it believes to exist. The inference about existence of fact can be drawn by the Court on the basis of the facts and circumstances brought to the notice of the court both by direct and circumstantial evidence. The second mode is using the belief of ordinary prudent man and for that also the Court is required to think as to how ordinary prudent man would have acted or believed in such a case. The law of evidence provides many factual presumptions which can be called as interferences and which can be drawn on the basis of the few facts like provided under section 114 of the Evidence Act. These inferences can be used by the Court for believing the existence of a fact. 35. Section 114 and illustration (a) of Evidence Act provides as under: "114. Court may presume existence of certain facts--- The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and Private business, in their relation to the facts of the particular case. The court may presume— (a) That a man who is in 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." 36. The court may presume— (a) That a man who is in 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." 36. In Hazari Lal's case (cited supra) the Apex Court has observed that illustration (a) to Section 114 of the Evidence Act is similar to the recovery of tainted money from the possession of the accused. So, if accused does not give reasonable explanation, the Court can presume the existence of the fact that the accused had obtained money. This presumption is to be drawn in view of the facts and circumstances of that case by the Court. It is discretionary presumption and the Court may even refuse to draw such presumption in view of the facts of a particular case. In the present case also, the prosecution has proved the recovery of tainted money from the possession of the accused. There is also other circumstantial evidence. So this court holds that drawing of the presumption under section 114 of the Evidence Act is necessary in this case. Unfortunately, the trial court has not considered this aspect of the case. Thus, the evidence of the present case is sufficient for proving the offence punishable under section 5(1)(d) r/w section 5(2) of Prevention of Corruption Act, 1947. 37. The relevant portion of Section 161 of the Indian Penal Code for which charge was framed runs as under: "161. Public servant taking gratification other than legal remuneration in respect of an official act. 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, as motive or reward for doing or forbearing to do any official act, or for showing. 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, as motive or reward for doing or forbearing to do any official act, or for showing. or forbearing to show, in the exercise of his official functions, favour or disfavour to any person, or for rendering, or attempting to render, any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State, or with any local authority, corporation or Government company, referred to in section 21, or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years or with fine, or with both. "A motive or reward for doing". A person, who receives a gratification as a motive for doing what he does not intend to do, or as a reward for doing what he has not done, comes within these words." 38. The aforesaid provision shows that for proving the offence punishable under section 161 of the Indian Penal Code, the prosecution is required to prove the following things. (i) The accused accepted or obtained, (ii) any gratification whatsoever other than legal remuneration, and (iii) as a motive or rewards for doing or forbearing to do an official act in exercise of his official functions. 39. The explanation to Section 161 quoted above shows that when a person receives gratification as a motive or reward for doing what he docs not intend to do or what he has not done comes within the words "a motive or reward for doing". Thus, even if, in the present case, it is presumed that the accused could not have done anything against the complainant or he had no intention to do anything in view of the nature of the rep0l1 given by Anandrao, then also his act of acceptance of gratification, falls under the words as gratification received for a motive or reward for doing or for forbearing to do the official act. 40. 40. If section 5(1)(d) of Prevention of Corruption Act is compared with section 161 of the Indian Penal Code (now deleted), it can be seen that for proving offence u/s 5(1)(d), the prosecution is required to prove that the accused "obtained" valuable thing or pecuniary advantage. However, for proving of offence under section 161 of the Indian Penal Code, the prosecution can simply prove acceptance but that must be of gratification. For proving the act of obtaining, the efforts on the part of the accused like demand, keeping the work pending need to be proved but such proof is not required for proving the acceptance of gratification. For the proof of offence under section 161, there is a further requirement like proof of acceptance as a motive or reward for doing or forbearing to do any official act. 41. While interpreting the provisions of Section 161 of the Indian Penal Code, in the case reported in AIR 1968 Supreme Court, 1419 (Shivraj Singh vs. Delhi Administration), the Apex Court has made following observations. "When a public servant is charged under section 161 of the Indian Penal Code and it is alleged that illegal gratification was taken by him for doing or procuring an official act, it is not necessary for the court to consider whether or not the accused was capable of doing or intended to do such an act." Similar observations are made by the Apex Court in other case reported in AIR 1976 Supreme Court, 1497 (Chaturdas Patel vs. State of Gujrat). 42. In the present case, the facts show that the accused had kept with him the report of Anandrao, the relevant record of the case of Anandrao and had also kept with him the report given by the complainant. No action as such was taken though such action ought to have been taken immediately in respect of the report. These circumstances are sufficient to fulfill the requirements of Section 161 of the Indian Penal Code which are interpreted by the Apex Court in the case of Shivraj Singh (cited supra). Thus, the evidence is sufficient for proof of offence punishable under section 161 of the Indian Penal Code. 43. The prosecution requires to prove that the gratification (other than legal remuneration) was accepted as a motive or reward. Thus, the evidence is sufficient for proof of offence punishable under section 161 of the Indian Penal Code. 43. The prosecution requires to prove that the gratification (other than legal remuneration) was accepted as a motive or reward. For the proof of this ingredient, compulsory statutory presumption is also provided under" Section 4 of Prevention of Corruption Act, 1947 which runs as under: "4(1). Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code or of an offence referred to in clause (a) or clause (b) of sub section (1) of section 5 of this Act punishable under sub section (2) thereof, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he know to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn." 44. Thus, the statutory presumption shows that if the prosecution establishes that the accused accepted the gratification (other than legal remuneration), the Court is bound to presume, unless contrary is proved, that the accused accepted such gratification as a motive or reward as described in section 161 of the Indian Penal Code. In the present case, the accused had no legal reason to make demand and then to accept the amount of Rs.200/- from the complainant. Thus, the amount needs to be treated as gratification and in view of section 4 of Prevention of Corruption Act, 1947, it further needs to be presumed that the gratification was accepted as a motive or reward as described in section 161 of the Indian Penal Code. Thus, the amount needs to be treated as gratification and in view of section 4 of Prevention of Corruption Act, 1947, it further needs to be presumed that the gratification was accepted as a motive or reward as described in section 161 of the Indian Penal Code. In view of section 4 of Prevention of Corruption Act, 1947, the burden was on the accused to rebut this presumption. 45. The argument was advanced by both the sides on the nature of burden created by section 4 of Prevention of Corruption Act, 1947. The law in this regard is settled by the Apex Court in the case reported in AIR 1964 Supreme Court, 575 (Dhanvantrai Balwantrai Desai vs. State of Maharashtra). This case was decided by Five Judges of the Apex Court. The following two things are made clear by the Apex Court. (i) The statutory presumption under section 4 of the Prevention of Corruption Act, 1947 must be drawn for offence punishable under section 161 of the Indian Penal Code, if gratification (other than legal remuneration) is received. (ii) There is difference in presumptions made available under section 114 of the Evidence Act and section 4(1) of the Prevention of Corruption Act, 1947." 46. In the case of Dhanvantrai Desai (cited supra), the Apex Court has made it clear that though the presumption available under Section 114 of the Evidence Act is a discretionary presumption and court may not draw the presumption in view of the facts of the case, that liberty is not available to the court in respect of the presumption under section 4(1) of Prevention of Corruption Act 1947. So if pre-conditions laid down in section 4(1) of Prevention of Corruption Act, 1947 are fulfilled i.e. the proof of acceptance of a gratification (other than legal remuneration) by the public servant, then the court must presume that such gratification was received by the accused as a motive or reward as mentioned in section 161 of the Indian Penal Code. The observation made by the Apex Court in this case is that it is necessary for the accused to rebut the presumption by proof viz. by establishing his case or bringing to the notice of the court the material on the basis of which reasonable man would act on the supposition that the fact exists. The observation made by the Apex Court in this case is that it is necessary for the accused to rebut the presumption by proof viz. by establishing his case or bringing to the notice of the court the material on the basis of which reasonable man would act on the supposition that the fact exists. Thus mere offering probable and reasonable explanation is not sufficient for rebutting this presumption and such case is required to be created that is more probable than the case of prosecution. Similar observations were made by the Apex Court in the case reported in AIR 1958 Supreme Court, 61 (State of Madras v. A. Vaidyanatha Iyer). The words "shall be presumed", unless contrary is proved, are used in section 4(1) of Prevention of Corruption Act, 1947 and so the definition of "shall presume" was considered by the Apex Court in this case. The definition "shall presume" shows that the court is bound to presume a fact unless and until it is disproved by the accused. 47. It is already observed that in the present case no explanation at all is offered by the accused. Thus, there was no question of rebuttal of presumption made available by section 4(1) of Prevention of Corruption Act. In view of this circumstance, there was no other alternative than to hold that the accused accepted the amount of Rs. 200/- from the complainant as gratification (other than legal remuneration) as a motive or reward as mentioned in Section 161 of the Indian Penal Code. Thus, there is a material sufficient to prove the offence under section 161 of the Indian Penal Code beyond reasonable doubt and further there is presumption available of section 4(1). Even in absence of section 4(1), the prosecution could have proved offence punishable u/s 161 of Indian penal Code. 48. For the accused some reported cases were cited on the aforesaid point. In the first case as reported in AIR 1977 Supreme Court, 170 (Rabindra Kumar Dey vs. State of Orissa), the Apex Court was considering the case in which there was charge for the offence punishable under section 5(1) (c) r/w 5(2) of Prevention of Corruption Act, 1947. Section 4 of the Act is not applicable for this offence and so this case is of no help to the accused. In the second case as reported in 1977 CRI. Section 4 of the Act is not applicable for this offence and so this case is of no help to the accused. In the second case as reported in 1977 CRI. L.J., 254(1) (SC) (Trilok Chand Jain vs. State of Delhi), it is observed by the Apex Court the presumption available under section 4(1) can be rebutted by showing mere preponderance of probability in favour of the accused and it is not necessary for him to establish his case beyond reasonable doubt. Similar observations are made by the Bombay High Court in the case as reported in 1973 Mh.L.J., 108, (Purushottam Raghnunath vs. State of Maharashtra). There cannot be any dispute over the proposition. It is already observed that the accused is required to show that his case is more probable than the case of the prosecution. 49. In view of the provisions of Section 4(3) of Prevention of Corruption Act, 1947 a submission was made for the accused that the amount recovered is trivial and so no inference u/s 4 may be drawn. This provision is already quoted. The provision shows that discretionary power is given to the court and the court may refuse to draw presumption available under section 4(1) of Prevention of Corruption Act, 1947, if in its opinion the gratification is trivial. On this point the case as reported in 2004(3) Mh. L.J., 410 : [2004 ALL MR (Cri) 2117] (Hanmantappa Murty Appa Vijapure & others vs. State of Maharashtra) and the case as reported in ((2009) 6 Supreme Court Cases 587: [2010 ALL SCR 1115] (A Subair .vs. State of Kerala) were cited. In the second case there was an illegal demand of Rs. 25/- only and the incident had taken place after 1988. In the first case also the incident took place after coming into force the Prevention of Corruption Act, 1988 and there was a charge of acceptance of Rs. 150/- as bribe. In the present case, the demand of Rs.200/- was made in the year 1986 from a poor illiterate agriculturist by Police Head Constable. In those days, the salary of class IV employee was hardly Rs. 500/- per month. In view of this circumstance, this court holds that it is not possible to hold that the demand was of trivial amount. So these cases are also of no help to the accused. 50. In those days, the salary of class IV employee was hardly Rs. 500/- per month. In view of this circumstance, this court holds that it is not possible to hold that the demand was of trivial amount. So these cases are also of no help to the accused. 50. One case as reported in 2011(6 Supreme Court Cases, page 450 State of Kerala vs. C.P. Rao) was cited. In this case, which was a trap case, it is reiterated by the Apex Court that mere recovery of tainted money dehors from the circumstances under which it is paid is not sufficient to convict the accused. It is observed that there has to be corroboration to the testimony of the complainant regarding the demand of bribe by the accused and there must be evidence in support of the evidence of the complainant. It is already observed that the corroboration to the version of the complainant may be of direct evidence or it may be of circumstantial evidence. The facts and circumstances of each and every case are always different. The necessary portion of the evidence is already discussed. So this case is also of no help to the accused. 51. For State, reliance was placed on one case as reported in (2009(3) Mh. L.J., (Cri), 568: [2009 ALL MR (Cri) 1567 (S.C.)] (State of Andhra Pradesh vs. M. Radha Krishna Murthy). In this case, there was an allegation against the accused that prior to the tnp. some amount was already paid as part payment of bribe money by the complainant. The remaining amount was paid on the date of trap. The evidence with regard to previous payment was doubtful in nature. In view of the facts of that case, the Apex Court held that the evidence given on the incident of trap and the recovery of tainted money from the possession of the accused was sufficient for proving both the offences punishable under section 7 and 13(1)(d) r/w 13 (2) of Prevention of Corruption Act. The acquittal was given by the High Court in view of the aforesaid circumstance and that decision was reversed by the Apex Court. 52. The acquittal was given by the High Court in view of the aforesaid circumstance and that decision was reversed by the Apex Court. 52. While making submissions on the powers of the Appellate Court given under section 378 and 386 of Cr.P.C., the advocate for the respondent placed reliance on two cases reported as ((1996) 9 Supreme Court Cases, 225 (Ramesh Babulal Doshi vs. State of Gujarat) and in 2007 CRI. L.J., 2136: (2007 ALL SCR 961] (Chandrappa and others vs. State of Karnataka). In the second case, the Apcx Court has observed as under; "An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by trial Court. If, two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court. 53. In the first case, the Apex Court has made following observations.- "This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-- and then only--- reappraise the evidence to arrive at its own conclusions. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then-- and then only--- reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the finding of the trial court are sustainable or not." 54. There cannot be dispute about the propositions made by the Apex Court. The propositions themselves and the powers of the Appellate Court mentioned in the Code, show that it is the duty of the first appellate court to appreciate the entire evidence to ascertain as to whether the view taken by the trial court has been arrived at legitimately. If some material is ignored by the trial court or if on the basis of the material available only one inference is possible but the trial court has committed error in not drawing such inference, then it becomes the duty of the appellate Court to interfere in the decision of the trial court. Though the accused has a right and his innocence needs to be presumed, the Society has a right to see that the person found guilty in an offence like the present one, is punished. If such person escapes from punishment due to error committed by the trial court and if appellate court ignores the error and confirms the decision, it amounts to doing injustice to the Society. The incidents of corruption have already increased to alarming extent. If more than thousand incidents of corruption take place in a city every day, hardly one or two cases are reported in a month. Out of one hundred such cases filed in the court, there is conviction in at the most 10 to 15 cases due to hyper technical approach. In view of the facts and circumstances of this case, this court holds that interference is justified 55. In view of the discussions of law and evidence, this court has no hesitation to hold that the trial court has committed error in acquitting the accused of both the offences. As the accused needs to be convicted for both the offences, this court holds that the Judgment and order of the trial court needs to be set aside. 56. The submissions were made on the point of sentence of the accused / respondent. As the accused needs to be convicted for both the offences, this court holds that the Judgment and order of the trial court needs to be set aside. 56. The submissions were made on the point of sentence of the accused / respondent. In view of the facts and circumstances of this court this court holds that giving minimum sentence as provided in both the provisions would be justified and sufficient in the present case. So the following order. 57. Appeal is allowed. The judgment and order delivered by the Special Judge, Chandrapur in Special Case No. 6/1987 acquitting the respondent of the offence punishable under Section 5(i)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and Section 161 of the Indian Penal Code is hereby set aside. The respondent stands convicted for offence punishable under Section 5(i)(d) read with Section 5(2) of the Prevention of Corruption Act and he is sentenced to suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default of payment of fine, he is to undergo rigorous imprisonment for one month. The respondent is also convicted of the offence punishable under Section 161 of the Indian Penal Code and he is sentenced to suffer rigorous imprisonment for one year and fine of Rs. 500/-, in default of payment of fine, he is to undergo rigorous imprisonment for one month. Both the sentences are to run concurrently. Writ be sent to the trial Court for sending the respondent behind bars. The other part of the order of the trial Court regarding disposal of property stands confirmed. Appeal allowed.