JUDGMENT : Sadhana S. Jadhav, J. 1. Appeal herein was filed by the original accused in Special Case No. 8 of 1990 wherein the accused has been convicted for offence punishable under section 161 of Indian Penal Code and section 5 (2) of the Prevention of Corruption Act, 1947 and he is sentenced to suffer simple imprisonment for three months and to pay fine of Rs. 1000/- on each count i.d. to suffer further simple imprisonment for 15 days by Special Judge, Nashik vide Judgment and Order dated 26/09/1994. Being aggrieved by the said Judgment accused had filed present criminal appeal. During the pendency of the appeal, appellant had expired. The legal heirs of the appellant filed an application seeking to prosecute the appeal. By an order dated 13/08/2010, legal heirs are brought on record and at present, the appeal is being prosecuted for the legal heirs. 2. Such of the facts necessary for the decision of this appeal are as follows. 3. That original appellant was working as police sub inspector at police station Jaikheda. One Laxman Bala Ahire was a social worker. On 22/01/1988, he had prepared one complaint against Tukaram Ahire and copies were sent to the concerned officers. On 24/01/1988, he along with Sampat and Namdeo had been to police station Jaikheda and had given a copy of the application to the police station Jaikheda. They had requested P.S.I. Chavan to take action against Tukaram Ahire. P.S.I. Chavan had demanded Rs. 500/- for taking action against Ahire. After negotiations it was settled that they would pay an amount of Rs. 400/- That the complainant had jotted the number of the currency notes in his diary. The paper on which the numbers were jotted down was the paper on which there was information about "Sanjay Gandhi Niradhar Yojana". He went to the police station and extended the amount of Rs. 200/- to P.S.I. Chavan and assured him that the remainder would be paid on the next day. He had then approached Pandit Patil. They had complained to Pandit Patil against P.S.I. Chavan about the corruption. He then went to the police station as directed by Pandit Patil. Complainant had narrated the act of demand of illegal gratification. Dy.S.P. had taken note that it is a non cognizable case. Officers of A.C.B. had prepared pre-trap panchanama in accordance with law. They had complained to Pandit Patil against P.S.I. Chavan about the corruption. He then went to the police station as directed by Pandit Patil. Complainant had narrated the act of demand of illegal gratification. Dy.S.P. had taken note that it is a non cognizable case. Officers of A.C.B. had prepared pre-trap panchanama in accordance with law. Specific instructions were given to the complainant as well as two panchas. The raid was effected after having received signal from the complainant. The raiding party had accosted the public servant. Dy.S.P.A.C.B. had lodged F.I.R. Accused was granted bail. After completion of investigation, charge-sheet was filed. Case was registered as Special Case No. 8 of 1990. Prosecution examined 5 witnesses to bring home the guilt of the accused. 4. P.W. 1 happens to be panch. He has deposed before the court that on 25/01/1988 he was in the office at 10.30 a.m. He was summoned by G.D. Kulkarni to act as panch. They had been to the office of A.C.B. He had heard the contents of the report lodged by Lahanu Ahire. He has deposed before the court that after completing the work of writing Lahanu has produced currency notes. He had heard the report lodged by the original complainant. Dy.S.P. had flung into action. He was instructed by Dy.S.P. to remain as a shadow witness. Complainant had asked the police and the panchas to stop the car mid way. Lahanu Ahire had made enquiry about the whereabouts of P.S.I. Chavan. Constable had informed them that Chavan had left the police station for house and therefore Lahanu Ahire had started walking towards police chawl. P.W. 1 had followed him. They went to the house of the appellant. They were greeted. Lahanu had informed P.S.I., that he had come with all preparation and action should be taken against Tukaram Kasu. P.S.I., instructed them to give money as was agreed on the earlier day. At that time, Lahanu Ahire had extended the currency notes towards P.S.I., and P.S.I. had counted the currency notes and went inside. He kept the currency notes under pillow which was kept on the bed. That Chavan went inside the room, Lahanu Ahire had given pre-determined signal. Members of the raiding party came and accosted P.S.I. Chavan. Dy.S.P. had introduced himself to P.S.I. Chavan. He kept the currency notes under pillow which was kept on the bed. That Chavan went inside the room, Lahanu Ahire had given pre-determined signal. Members of the raiding party came and accosted P.S.I. Chavan. Dy.S.P. had introduced himself to P.S.I. Chavan. In the inner room Dy.S.P. Chavan had asked P.S.I. Chavan whether he had accepted the bribe which Lahanu had given to him. P.S.I. Chavan was frightened, he asked for water and sat on the bed. Dy.S.P. Chavan had asked P.S.I. Chavan as to where was the money which he had taken from Lahanu. P.S.I. Chavan lifted the pillow and showed the money. Thereafter, hands of the complainant and the accused were examined in the ultra violet rays. There were traces of anthracene powder on the hands of the accused. A panchanama was prepared in accordance with Law. Dy.S.P. Chavan had asked P.S.I. Chavan to produce the application that was given by Lahanu Ahire on 24/01/1988. P.S.I. Chavan had then informed that the application was given to Nikam for enquiry. Nikam was called there and he was asked to produce the paper. Mr. Nikam produced the paper which were verified by Lahanu. The same was seized and is marked as Exhibit 21. Along with that application one panchanama and the statement of witnesses were also produced by Nikam. All the relevant papers were seized. P.S.I. Chavan produced office copy of the report which was seized. In the house search, the raiding party had found an iron box on which 4 suitcases were kept. In one of the 4 suit cases there was a diary in which currency notes of Rs. 100/- and Rs. 50/- denomination were found. There were in all 16 currency notes of Rs. 100/- and 15 currency notes of Rs. 50/-. Amongst those notes there was one currency note of 100/- and one currency note of Rs. 50/- which tallied with the numbers written on a chit which Lahanu Ahire had showed the raiding party in the jeep while proceeding to the house of P.S.I. Chavan. They had found Safari suit hanging in the room. In the pocket of the shirt of Safari suit, one wallet was found. There were three currency notes of Rs. 10/-. Out of those three currency notes, one currency note had number which was mentioned in the list given in the jeep produced by Lahanu Ahire. The said notes were seized. They had found Safari suit hanging in the room. In the pocket of the shirt of Safari suit, one wallet was found. There were three currency notes of Rs. 10/-. Out of those three currency notes, one currency note had number which was mentioned in the list given in the jeep produced by Lahanu Ahire. The said notes were seized. P.W. 1 has proved his signatures on a sealed envelope. 5. It was suggested in the cross-examination that the raiding party had been to the house of the Pandit Patil before proceeding to the house of the accused. At that time, Pandit Patil was accompanied with the complainant and two persons. P.W. 1 has categorically stated that Pandit Patil had not told them to trap P.S.I. The witness has reiterated that Lahanu Ahire had told them about the chit on which he had jotted the number of the currency notes as soon as they had left for the raid. P.W. 1 has categorically stated in the cross-examination that Lahanu Ahire did not say that amount of Rs. 200/- is with him. It is further elicited in the cross-examination that anthracene powder was not detected on the edges of the pillow. It was detected in the middle portion of the pillow. Powder was detected on one or two places. Powder was also detected on various places on bed-sheet that was below the pillow. The portion where traces of anthracene powder were found were demarcated for the purpose of identification. The powder was detected on the first 1/3 portion of the fingers of the hands of the accused. Powder was not detected on the wearing clothes. The tenor of cross-examination would indicate that it was being suggested to the witness that the original complainant had planted tainted notes below the pillow. This aspect has been specifically refuted by the complainant as well as the shadow witness. The manner in which the transaction of demand and acceptance between the accused and the complainant had taken place are specifically narrated in the panchanama and are proved by the prosecution witnesses. As far as demand and acceptance of the currency notes is concerned, the sterling testimony of P.W. 1 could not be shaken. 6. P.W. 2 Lahanu Ahire is the original complainant. As far as demand and acceptance of the currency notes is concerned, the sterling testimony of P.W. 1 could not be shaken. 6. P.W. 2 Lahanu Ahire is the original complainant. He has deposed before the court that at the relevant time, Pandit Patil was the M.L.A. He was a responsible person in the village. Tukaram Ahire had given complaint to the police station against him. His brother Motiram, Namdeo Kasu, Gulab Namdeo, Sitaram Ananda and Lahanu Gotu. Complainant was lodged in the Jaikheda Police Station in the year 1987. All the accused were summoned by P.S.I. Chavan at Mulher outpost. On 13/01/1988. They had been to Mulher outpost. Tukaram Ahire was also present. When enquiry was in progress, Tukaram Kasu Ahire had rushed upon P.W. 2 and had caught hold of him by his neck. Police had intervened and rescued P.W. 2. P.S.I., had told them to come to the police station on 14th. P.W. 2 along with Namdeo, Motiram and others went to the police station. Their statements were recorded. They signed on their statements. P.S.I., had warned them that if they continue to behave in the similar manner he would be constrained to file chapter case. All of them had requested P.S.I. Chavan not to file chapter cases without enquiring into it. At that juncture, P.S.I. Chavan demanded Rs. 200/-. P.W. 2 had paid Rs. 200/-. The numbers of which he had jotted down. 7. According to P.W. 2 on 22/01/1988 they all prepared one complaint against Tukaram Ahire and had sent it to the concerned authorities. On 24/01/1988, P.W. 2 Sampat and Namdeo went to the Jaikheda Police Station and had given a copy of the application to the police station. Copy of the application is marked at Exhibit 21. They had requested P.S.I. Chavan to take action against Tukaram. At that juncture P.S.I. Chavan demanded an amount of Rs. 500/-. P.W. 2 was of the opinion that it would be an exorbitant payment. He therefore told P.S.I. Chavan that there should be some negotiation and accordingly there was negotiation and instead of Rs. 500/- accused had shown his willingness to accept Rs. 400/-. P.W. 2 had then left the police station. He had Rs. 200/- with him. He reduced into writing the number of denominations on a piece of paper. He has produced the said paper before the court which is marked as Exhibit 23. 500/- accused had shown his willingness to accept Rs. 400/-. P.W. 2 had then left the police station. He had Rs. 200/- with him. He reduced into writing the number of denominations on a piece of paper. He has produced the said paper before the court which is marked as Exhibit 23. He then returned to P.S.I. Chavan and gave him Rs. 200/-. P.S.I. Chavan had then demanded the balance of Rs. 200/- on the next day. Thereafter, P.W. 2 and others had approached Pandit Patil and complained against P.S.I. Chavan and about his corrupt practices. P.W. 2 and others had sought guidance from Pandit Patil to book P.S.I. Chavan. Pandit Patil had guided them to first inform the A.C.B. office and then to revisit him on 25/01/1988 in the morning. On 25th P.W. 2 had been to the house of Pandit Patil. At that time, officer of A.C.B. and other employees were present. Complaint was reduced into writing by the officer of A.C.B. in the cattle shed of Pandit Patil. Officer had given specific instructions to the complainant. Accordingly, it was decided to conduct a trap. They went to the police station, they were informed that P.S.I. Chavan had just left the police station and had gone to the room and therefore raiding party had gone to the room of P.S.I. Chavan. Raiding party entered the room of P.S.I. Chavan. P.W. 2 had told P.S.I. Chavan that he had brought the amount as was demanded on the earlier day. At that juncture, P.S.I. Chavan told P.W. 2 to give the amount which he has brought and thereafter appropriate action would be taken against Tukaram. P.S.I. Chavan accepted the currency notes, counted them with both his hands and placed the currency notes under the pillow that was on the cot. 8. P.W. 2 has further deposed that amount was given to P.S.I., in the outer room. The cot was in the rear room. A predetermined signal was given and thereafter the officers of A.C.B. had raided the premises. In the cross-examination P.W. 2 has admitted that he had worked as a Talathi on a regular post. He was elected as a member of Zilla Parishad. He resigned from the post of membership of Zilla Parishad as the Collector had directed an enquiry against him. He had licence for ration shop which he surrendered as he was to contest the elections. He was elected as a member of Zilla Parishad. He resigned from the post of membership of Zilla Parishad as the Collector had directed an enquiry against him. He had licence for ration shop which he surrendered as he was to contest the elections. He was elected as a member of Assembly in the year 1990. His relative Sampat Bagul was with him at the time of trap. He has further admitted that Pandit Patil had helped him at the time of elections. Pandit Patil was acting as a guide to him. He has denied the suggestion that a false case was fabricated against P.S.I. Chavan. It is also admitted that accused P.S.I. Chavan had filed a chapter case against Tukaram. It is also admitted that Tukaram had filed applications against P.W. 2 and that the said application was given to P.S.I. Chavan for enquiry. He has further deposed that otherwise, on the first occasion a chapter case would be filed against him. He has specifically stated in the cross-examination that even before seeking advise of Pandit Patil he had sent a letter by post to A.C.B. against P.S.I. Chavan. He has further admitted that he had not recorded the number of currency notes which he had given to the accused on 14/01/1988 but he had recorded the number of currency notes which he had given to the accused on 24/01/1988. 9. Learned counsel for the appellant has vehemently argued that P.W. 2 has admitted in the cross-examination that he had not mentioned on the piece of paper as to whom the amount of Rs. 200/- was given, he had not mentioned the date when the said amount was given. That the said piece of paper which is marked at Exhibit 23 was given to Dy.S.P. Chavan before the raid. On 25th he had demanded Dy.S.P. Chavan the piece of paper which he had given to him. It is admitted that he had not personally approached office of A.C.B. and complained that accused had demanded the bribe which was given to him on 25th. He has also admitted in the cross-examination that even prior to the incident, he was well aware of the fact that accused was residing in the police line as he visited the accused on the earlier occasion. He has also admitted in the cross-examination that even prior to the incident, he was well aware of the fact that accused was residing in the police line as he visited the accused on the earlier occasion. Before opening the door of the house accused had enquired about the identity of the person and only thereafter had opened the door. P.W. 2 and others were made to sit in the outside room for about half an hour. When the accused returned they were standing in the veranda. There is a cot in the veranda also. He has denied the suggestion that when Dy.S.P. Chavan came to the spot, pursuant to the predetermined signal, he had not informed him that the tainted notes were under the pillow. P.W. 2 has further stated that he had seen the accused placing the money under the pillow but had not disclosed about it to Dy.S.P. Chavan. Shadow witness had also seen the accused putting the money under the pillow and none of them had told about this to Dy.S.P. Chavan. 10. As far as acceptance of tainted currency notes is concerned, there is no doubt that prosecution has established the same. As far as demand is concerned, it is clear that P.W. 2 had extended the amount only after the demand was made. There was no reason for P.W. 2 to extend the tainted currency notes in the absence of any demand. 11. P.W. 3 Sampat Bagul had accompanied P.W. 2. He has deposed before the court that on 24/01/1988 he along with the villagers have been to Jaikheda Police Station and had filed an application requesting the police officer to take action against Tukaram Kasu. Application was given to P.S.I. Chavan. At that time P.S.I. Chavan had demanded Rs. 500/-. The amount of demand was negotiated and reduced to Rs. 400/-. Lahanu Ahire had paid Rs. 200/- and the remainder was to be paid on the next day before 9.00 p.m. He has also reiterated that they had all been to the house of Pandit Dharma Patil. As far as the transaction is concerned, he has deposed that Lahanu had told P.S.I. Chavan that they had brought Rs. 200/- as was demanded on the earlier day. P.S.I. Chavan had then expressed that if they have brought the money they should give it to him. As far as the transaction is concerned, he has deposed that Lahanu had told P.S.I. Chavan that they had brought Rs. 200/- as was demanded on the earlier day. P.S.I. Chavan had then expressed that if they have brought the money they should give it to him. Lahanu had given the notes to P.S.I. Chavan which he collected with his right hand, counted them with both hands, went into the inner room and kept the same under the pillow. Lahanu had given the predetermined signal. It is elicited in the cross-examination that Lahanu had asked the accused to extern Tukaram and arrest him. There are certain insignificant omissions in the evidence of P.W. 3. In the cross-examination he has further stated that Lahanu had told the accused that they had come prepared as per the settlement on the previous day but had not disclosed that he had brought Rs. 200/-. He has also admitted that he was not sitting on the cot. 12. P.W. 4 Kamal Kashyap was working as D.I.G., Nashik Range. He has accorded sanction for prosecution. He has deposed before the court that he had in fact studied all papers of investigation, applied his mind to the facts of the case and had arrived at a conclusion that there was sufficient evidence to accord sanction. He had dictated the sanction order on 02/03/1990. There is nothing to indicate that sanction for prosecution was not a valid sanction. 13. P.W. 5 Pratapsing Chavan was working as Dy.S.P. C.B.I. Nashik at the relevant time. He has deposed before the court that at the relevant time one Shree Kore was additional S.P. A.C.B. Nashik. By a letter dated 25/01/1988 he had directed P.W. 5 to look into the complaint of Pandit Patil. Dy.S.P. Kadave had requisitioned the services of two employees to act as panchas. He had conducted pre-trap panchanama and the post-trap panchanama. He has specifically deposed before the court as follows: "The house in which the bribe was accepted was searched. In the room among other notes, there was a suitcase containing a diary having the name of the accused. Inside the diary there was money in form of 16 notes of Rs. 100/- each and 15 notes of Rs. 50/- each amounting to Rs. 2350/-." 14. The number of currency notes given on 24th was tallied and the said notes were found in the pocket. Inside the diary there was money in form of 16 notes of Rs. 100/- each and 15 notes of Rs. 50/- each amounting to Rs. 2350/-." 14. The number of currency notes given on 24th was tallied and the said notes were found in the pocket. There was a wallet in the dress in which three 10 rupee notes were found. Number of one of those notes tallied with the numbers mentioned in Exhibit 23. Three notes were seized in the presence of panchas. A panchanama was drawn to that effect. He has specifically deposed that Pandit Patil was not present when the complaint of Lahanu was recorded. 15. Learned counsel for the appellant submits that in fact, appellant had been falsely implicated at the behest of Pandit Patil. According to learned counsel, complaint of P.W. 2 ought to have been recorded at the office of A.C.B. and not at the behest of Pandit Patil. According to him, the very fact that officers of A.C.B. were summoned by Pandit Patil and had proceeded according to instructions given by him, an inference ought to be drawn that the appellant had been falsely implicated at the behest of Pandit Dharma Patil. It is true that there was a deviation in the procedure of recording of complaint, however, the said deviation would not vitiate the trial nor falsify the events. P.W. 2 had given a plausible explanation that since they did not know the procedure, they had requested Pandit Patil to guide them as they did not wish to continue to pay illegal gratification to the accused. All that can be inferred is Pandit Patil had not just guided them but had participated in the process of initiating the complaint against the accused P.S.I. Chavan. There was no reason for independent witnesses such as panchas to falsely implicate the accused. Besides submitting that there is a false implication, accused has not rebutted the presumption under section 4 of the Prevention of Corruption Act, 1947. The only defence of accused is that a false case was filed at the behest of Pandit Patil as he was demanding money from the accused from time to time on the ground that he is the leader of Taluka, running educational institutions. That Pandit Patil used to pressurize him. The only defence of accused is that a false case was filed at the behest of Pandit Patil as he was demanding money from the accused from time to time on the ground that he is the leader of Taluka, running educational institutions. That Pandit Patil used to pressurize him. It is pertinent to note that currency notes, the number of which was jotted down by P.W. 2 had found place in the notes which were seized in the house search of the accused. The accused has not offered any plausible explanation for the same. Accused had neither given a plausible explanation in respect of the fact that currency notes were found under the pillow. It is not the case of the accused that amount was thrusted or planted by the complainant. The case of the accused is that of total denial and false implication. 16. Once the fact of acceptance of the currency notes is established by the prosecution, it becomes incumbent upon the court to draw a presumption. The onus would lie upon the accused to rebut the said presumption or demonstrate the preponderance of probabilities to seek discharge/exoneration from the charges levelled against him. However, the accused has not placed any material before the cour to show that he had not demanded the gratification or that the amount accepted by him which found in his conscious possession was not towards illegal gratification. The Legislature has chosen to use the words "Shall presume" and therefore it becomes incumbent upon the court to presume that the amount accepted and found in the possession of the accused is towards illegal gratification. "Shall presume" has been defined in the evidence act as follows: "Whenever it is directed by this Act that the Court shall presume a fact, it shall record such fact as proved unless and until it is disproved." 17. It therefore, becomes obligatory on the part of the court to presume that accused had accepted illegal gratification. In the absence of rebuttal of presumption by the accused, it can be safely inferred that the prosecution has proved its case beyond reasonable doubt. In view of the above discussion, appeal deserves to be dismissed. Hence, following order. ORDER