1994 Supreme(Bom) 269

IN THE HIGH COURT OF BOMBAY
M.F. Saldanha, J.
Kishan Khashapa Gogawale ....Appellant.
Versus
The State of Maharashtra .....Respondent.
Criminal Appeal No. 566 of 1991, decided on 27-6-1994.
Advocates appeared:
S.R. Chitnis, for the appellant-original accused.
B.R. Patil, for respondent-State.

Headnote:Sections 3 and 59-Prevention of Corruption Act, 1947-Section 5 (1) (d) and 5 (2)-Indian Penal Code 1860-Section 161-Presumption under Corruption Act-Whether rebuttable?

       Held, it is true that hath these witnesses have denied that the accused referred to the Small Saving Scheme because it is their version that after the work in the office was over and when they went out to the motorcycle that the accused asked what had happened about the other matter, whereupon Bhairu said that he had brought the money and that he bad handed the same over to the accused.

       One needs to scan this evidence very carefully because the complainant, significantly enough, admitted the fact that the accused completed his work of recording the statement etc. without so much as asking him about the money, It is needed to take a serious note of the fact that if the accused bad demanded the amount for himself as consideration that he would never have completed B work in the office without first having ascertained as to whether he had brought the money and possibly without having first taken it. The fact that he completed all the official work without reference whatsoever to this is a circumstance in his favour. The A.P.P. submitted that since there were other persons in the office he completed the official work and thereafter called Bkairu outside so that he could take the money from him.

       It is little difficult to accept this argument only because if the accused was motivated by corrupt desire, nothing prevented him from asking the accused whether the money had been brought, even if the exchange was to take place later on, Secondly, the A.P.P. submitted that even when they were along the accused would not use any incriminating terminology because of the presence of the Panch Lamb.

       Here, again, one needs to take note of normal human conduct. Not only had the accused not questioned Bhairu inside but strangely enough if he was acting dishonestly it is rather unlikely that he would not have questioned as to who the second stranger, namely, Panch Lamb, was, Having taken the precaution of coming out to a secluded spot he would not have taken the money in the presence of the stranger without even asking as to what that person was doing there. These are factors which tend to cast considerable doubt on the prosecution version that the amount in question was illegal gratification.

       The High Court is reinforced in this view by the admissions of V & P who have admitted that the accused, who was a subordinate Revenue Officer, had nothing to do with this case except the service of the notice on B, Cumulatively, therefore, it becomes a little difficult to accept this evidence at face value in the light of a serious charge against the accused.

       By preponderance of probabilities, the law envisages that since the cardinal maxim of criminal jurisprudence lays down that where two explanations arc possible, the one in favour of the accused must be accepted. If the explanation put forward is reasonably probable and if, on a careful examination, it appears to the Court that the facts alleged against the accused can be completely explained through such a theory, then it is obligatory on the part of the Court to uphold such an explanation, The basic presumption of innocence is not done away in corruption cases merely because a presumption arises, because the law itself provides that the presumption is a rebuttable one.