JUDGMENT - H.H. KANTHARIA, J.:---The learned Special Judge, Nasik, in Special Case No. 1 of 1981, by his judgment and order dated 1st July, 1981 convicted the appellant accused for an offence punishable under section 161 of the Indian Penal Code and sentenced him to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default to suffer further rigorous imprisonment for three months. The appellant was also convicted for an offence punishable under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act and was sentenced to suffer rigorous imprisonment for one year and to pay a fine of Rs. 500/-, in default to suffer further rigorous imprisonment for three months. Substantive sentences were ordered to run concurrently.

2. It was the prosecution case that complainant Balasaheb Shinde (P.W. 1) was carrying on wholesale business in country liquor at Manmad as one of the partners of M/s P.B. Shinde Company. He was to receive a certain quota of country liquor from Pravara Nagar Sugar Factory, Pravara Nagar, District Ahmednagar, as per the directions of the Superintendent of the Prohibition and Excise, Nasik. However, the appellant who was then working as Inspector of Prohibition and Excise at Malegaon Division, was alleged to have demanded and accepted a bribe of Rs. 2,000/- as illegal gratification on 18th June, 1980 at Manmad for release of the said liquor. A successful trap was arranged against him when a sum of Rs. 2,000/- smeared with anthracene powder was recovered from him. He was accordingly prosecuted and tried and was convicted and sentenced as stated above which has been impugned in this appeal.

3. The defence of the appellant was that he had neither demanded nor accepted illegal gratification of any amount much less of Rs. 2,000/- from the complainant. He, however, admitted that on 18th June, 1980, at about 10.30 a.m. he did accept Rs. 2,000/- from the complainant but the said amount was given to him by the complainant for being paid to one Ram Pawar. In other words, the defence of the appellant was that the amount of Rs. 2,000/ recovered from him was not the bribed money but it was taken by him from the complainant for and on behalf of Ram Pawar who had sent a chit (letter) with the complainant to him requesting that he (appellant) should send his (Pawar's) amount of Rs. 2,000/- along with the complainant.

4. Mr. Dudhat, learned Counsel appearing on behalf of the appellant, urged that in view of the fact that the appellant admitted the prosecution story that the amount of Rs. 2,000/- was recovered from him during the trap, the only point that arises for consideration of this Court is whether the defence has been able to rebut the presumption that can be raised against the appellant under section 4 of the prevention of Corruption Act by a reasonable and probable explanation. The contention of the learned Counsel is that in the facts and circumstances of the case, the appellant did tender reasonable and probable explanation as to how an amount of Rs. 2,000/- was recovered from him and that being so, on the doctrine of preponderance of probability, the appellant is entitled to an acquittal. I find lot of substance in the submission of Mr. Dudhat, for, the evidence on the record shows that complainant Balasaheb Shinde had admitted in the cross-examination that the appellant had brought a chit from one Ram Pawar of Malegaon requesting Balasaheb Shinde to hand over an amount of Rs. 2,000/- due to him to the appellant for the purpose of it being delivered to the said Ram Pawar at Malegaon. He further admitted that he read the contents of the chit and immediately threw it away and that in the said chit Ram Pawar had demanded back from him the advance of Rs. 2,000/- which he had paid to him towards two barrels of country liquor. He also admitted in the cross-examination that it was written in the said chit that the amount of Rs. 2,000/- may be sent along w

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