IMPORTANT POINT
High Court reversed the acquittal on re-appreciation of explanation given by accused of recovered illegal gratification amount. This is not sustainable in law. High Court should have focused its attention to the reasoning advanced by Special Judge.

ORDER

This appeal is directed against the judgment of Bombay High Court at Nagpur Bench. By the impugned judgment, State of Maharashtra having approached the High Court against an order of acquittal passed by the learned Special Judge, the High Court has set aside the acquittal and convicted the appellant under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947. The prosecution alleged that on 25.9.1986 the accused, who was the Patwari demanded and accepted illegal gratification to the tune of Rs. 100/-, and he being a Public servant, such acceptance tantamounts to offence under Sections 161 and 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act. The accused in his 313 page statement candidly admitted about the recovery of sum of Rs. 100/- from him and the acceptance of money by him from the complainant PW 1. But he took the plea that the aforesaid amount was not in pursuance to any demand by him as any illegal gratification but was a loan amount which the accused was collecting in those days from different Rayats and therefore he has not committed any offence either under Section 161 or under the provisions of Prevention of Corruption Act. The learned Special Judge in view of the stand of the accused elaborately discussed the evidence on record, and came to hold that the explanation offered by the accused must be held to be probable, reasonable and acceptable, and therefore accepting the same acquitted the accused of the charges levelled against him. In appeal against the acquittal, the High Court by the impugned judgment, instead of examining the reasons advanced by the learned Special Judge, came to hold that the explanation of the accused offered cannot be accepted. Relying upon the evidence of PWs 1 and 2 came to hold that the prosecution has been able to establish the charges against the accused, and as such the order of acquittal was interfered with and the accused appellant has been convicted under Section 161 and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act.

2. It is contended by the learned Counsel for the appellant that the High Court in exercise of its power against an order of acquittal was duty-bound to examine the reasons, which persuaded the trial Judge to come to a conclusion that the explanation offered by the accused was probable and reasonable, and having not done so the order of the acquittal could not have been interfered. The learned Counsel further urged that even on examining the evidence of PWs 1 and 2, it is not possible to hold that the explanation offered is not reasonable or probable. The learned Counsel appearing for the State, on the other hand, contended that on the materials on record, the High Court was fully justified in interfering with an order of acquittal since the power of the High Court while entertaining an appeal against an order of acquittal is the same as that when it entertains an appeal against a conviction and the Court having re-appreciated the entire evidence, the order of conviction remains unassailable.

3. We have examined the judgment of the learned Special Judge as well as that of the High Court. It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. It is undisputed that from 24th to 26th the Patwari was collecting loans in a collection campaign. It is, of course, true as observed by the High Court that when the Investigating Officer seized the amount from the Patwari accused, he did not offer the explanation that it was in relation to a collection of loan, but that by itself would not be sufficient to thro