2006 Supreme(SC) 15

2006(1) Supreme 47
Supreme Court of India
(From Bombay High Court)
S.B. Sinha & R.V. Raveendran, JJ.
State of Maharashtra —Appellant
versus
Rashid Babubhai Mulani —Respondent
Criminal Appeal No. 557 of 1999
Decided on 4-1-2006
Counsel for the Parties :
For the Appellant : V.N. Raghupathi, Ravindra Keshavrao Adsure, Advocates.
For the Respondent : Mrs. Jayashree Wad, Ashish Wad, Neeraj Kumar, Arvind Gupta and Priyank Adhyaru Advocates.

Important points
1. If two views are possible and the view of the High Court acquitting the accused cannot be said to be wholly improbable, the Supreme Court will not interfere with the decision of the High Court. But where the material on record leads to only one conclusion viz., the guilt of the accused, the judgment of the High Court will not be sustained.
2. In a case of conviction u/s 161 IPC and Section 5(2) rw/s 5(1)(d) of the Prevention of Corruption Act, the Supreme Court reduced the sentence from one year to four months considering that the incident occurred about 19 years ago when the accused, a Talathi coming from a poor background, was hardly 32 years old.

Headnote:(i) Prevention of Corruption Act, 1947—Section 5(2) rw/s 5(1)(d)—Indian Penal Code, 1860—Section 161—Appeal against acquittal—Respondent accused was working as Talathi of a village—Complainant and his elder brother were the owners of an ancestral field—Complainant requested respondent accused to delete name of mortgagee as mortgage suit filed by mortgagee had ended in a compromise—Accused allegedly demanded Rs. 900/- to delete mortgagee’s name from revenue records—Complainant allegedly paid Rs. 600/- to the accused—Accused allegedly asked him to bring Rs. 300/- more and that he would keep the ‘Extract’ ready —Complainant lodged a report with Anti Corruption Bureau—A trap was laid—Raiding party apprehended the accused and recovered the marked currency notes of Rs. 300/- given by the complainant to the accused on his demand—Explanation given by accused that the amount was accepted towards a Tagai loan taken in the name of his elder brother—Special Judge convicted and sentenced the accused for the offence rejecting the explanation given by the accused—High Court acquitted the accused holding that the explanation given by the accused for receiving the amount was reasonable and probable—It was held that the charge against accused that he had accepted Rs. 300/- as illegal gratification was not proved beyond doubt—Whether High Court was justified in acquitting the accused—(No).

       Held : Section 4 of the Act, inter alia, provided that where in any trial of an offence punishable under Section 161 IPC or Section 5(1)(a) or (b) punishable under section 5(2) of the Act, it is proved that an accused person has accepted any gratification (other than legal remuneration), it shall be presumed, unless the contrary is proved, that he accepted that gratification as a motive or reward, such as is mentioned in the said Section 161. This would mean that a mere explanation in the statement under Section 313 that the amount was received towards a loan will not be sufficient. The contrary position should be established by the accused either from inferences legally drawn from the evidence on record let in by the prosecution, or by letting in direct evidence in regard to the explanation. The statutory presumption raised under Section 4 will not stand rebutted merely by offering an explanation under Section 313 if such explanation does not find support from the evidence let in by the prosecution. (Para 8)

       The evidence of PW-1 (complainant), PW-2 (Panch witness) and PW-3 (Police Inspector) clearly prove the ingredients of a valid trap case. The evidence of the complainant (PW-1) shows that there was a demand by the accused, payment of Rs. 300/- as illegal gratification by the complainant to the accused and acceptance thereof by the accused. The evidence of PW-2 (Gulab) who accompanied the complainant, fully corroborates the evidence of the complainant. PW-2 has stated that the Police Inspector Mulani called him and disclosed to him about the trap, that four currency notes of Rs. 50 each and one note of Rs. 100 were kept in the shirt pocket of the complainant, after being treated with chemicals; that he accompanied the complainant to the Circle Office; that the Office was closed and when they came near the bus-stand, the accused met them and took them to his house; that in his presence, the complainant asked the accused about the fate of his work and the accused enquired whether the complainant had brought the money and told that he had to obtain the signature of the Circle Officer; that thereafter the complainant took out a sum of Rs. 300 and gave it to the accused who took it, counted it and kept it in his pocket; and that was followed by the Police party and Panch witnesses entering the house and seized the amount. (Para 11)

       If the accused has received the money towards a Government loan or at least being under a bona fide impression that it was towards repayment of the Government loan, he will not be guilty. Let us examine whether the explanation by the accused is reasonable and plausible. The evidence clearly shows that no amount was due from complainant to the State. Even the case of the defence is that certain amount was due from Baban (complainant’s brother) and the Tehsildar had instructed the accused by letter dated 3.9.1996 to recover the amount due from Baban. When no amount was due from complainant, and when the instruction of the Tehsildar was that the amount outstanding from Baban should be recovered, there is no explanation as to why the accused should send a demand notice to the complainant and not Baban on 6.9.1986. In fact, the trial court has referred to the partition between Baban and complainant three years before the incident. Be that as it may. When nothing is shown to be due from the complainant, the case put forth by the defence that a notice of demand dated 6.9.1996 was sent to complainant to pay the dues cannot be accepted. It is obviously an afterthought. If no amount was due to the government from the complainant, the question of accused accepting it as payment towards a government loan does not arise. The evidence relating to demand, payment and acceptance of illegal gratification, is clear. The Trial Court had considered the entire evidence in detail and drawn proper inferences. On the other hand, the High Court accepted as explanation, an unsupported submission of counsel for the accused that the payment was in response to a notice of demand dated 6.9.1986 sent by accused to complainant by registered post, (thereby ignoring the entire evidence regarding demand, payment and acceptance of a bribe) and held that the accused should be given benefit of doubt. (Para 12)

       It is no doubt true that if two views are possible and the view of the High Court acquitting the accused cannot be said to be wholly improbable, this Court will not interfere with the decision of the High Court. But where the material on record leads to only one conclusion viz., the guilt of the accused, the judgment of the High Court will not be sustained [vide State of Andhra Pradesh vs. K. Narasimhachary 2005(8) SCALE 266]. In this case, we are clearly of the view that the High Court was not justified in accepting the explanation regarding receipt of Rs. 300/- by the accused as being towards Tagai loan. The conclusion of guilt is inescapable. Consequently, we allow this appeal, set aside the order of the High Court and restore the judgment of the Additional Special Judge, Pune, in Special Case No. 1/1987 convicting the respondent for the offences punishable under Section 161 IPC and Section 5(2) read with Section 5(1)(d) of the Act. (Para 15)

       (ii) Indian Penal Code, 1860—Section 161—Prevention of Corruption Act, 1947—Section 5(2) rw/s 5(1)(d)—Conviction—Reduction of sentence—Demand and acceptance of illegal gratification of Rs. 900/- by Talathi of a village—Incident occurred about 19 years ago—Accused is now more than 50 years old—Sentence reduced from one year to four months both u/s 161 IPC and Section 5(2) rw/s 5(1)(d) of the Act—Both the sentences to run concurrently.

       Held : In regard to sentence, we find that the incident occurred about 19 years ago. The matter was pending for about 3 years before the Special Judge, and about 8 years before the High Court and, thereafter, for 8 years before this Court. The accused was hardly 32 years old when the incident occurred and now more than 50 years old. The accused was a Talathi coming from a poor background with a family to support. In the circumstances, while restoring the conviction, we reduce the sentence from one year to four months both under Section 161 IPC and Section 5(2) read with Section 5(1)(d) of the Act. Both the sentences to run concurrently. (Para 16)

       (iii) Evidence Act, 1872—Notice—Service of—Certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post—The ease with which such certificates can be procured by affixing ante-dated seal with the connivance of any employee of the Post Office is a matter of concern—Department of Posts may have to evolve some procedure whereby a record in regard to the issuance of certificate is regularly maintained.

       Held : A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by the Post Office. But when a mere certificate of posting is sought, no record is maintained by the Post Office either about the receipt of the letter or the certificate issued. The ease with which such certificates can be procured by affixing ante-dated seal with the connivance of any employee of the Post Office is a matter of concern. The Department of Posts may have to evolve some procedure whereby a record in regard to the issuance of certificates is regularly maintained showing a serial number, date, sender’s name and addressee’s name to avoid misuse. In the absence of such a record, a certificate of posting may be of very little assistance, where the dispatch of such communications is disputed or denied as in this case. Be that as it may. (Para 14)