Shah, J.:— Pundlik Bhikaji Ahire, whom we will hereafter refer to as accused No. 1, and Fajitrao Damu Mahale, whom we will hereafter refer to as accused No. 2, were tried by the Special Judge, Ahmednagar, in Corruption Case No. 1 of 1958, for offences respectively under ss. 161 and 165A of the Indian Penal Code. The learned Special Judge acquitted the two accused, and against the order of acquittal this appeal has been preferred by the State of Bombay.

2. The material facts which give rise to the prosecution may be briefly stated. Chapter proceedings were started by the police against one Mohanlal Doshi in the Court of the Executive Magistrate at Sangamner. The proceedings were then transferred to the Court of the Special Executive Magistrate at Ahmednagar. Accused No. 1 was the Presiding Officer of the Court of the Special Executive Magistrate at Ahmednagar. Accused No. 2 is the son-in-law of accused No. 1 and was employed in the police force as a constable, and was posted at Rahata in the district of Ahmednagar. Before September 25, 1957, three witnesses on behalf of the State had been examined in the case against Mohanlal Doshi and the case stood adjourned till that date. On September 25 Mohanlal Doshi sent a telegram addressed to the Magistrate requesting that an adjournment be granted because his presence was required in another Court in another proceeding in which he was concerned. The prosecutor applied for the issue of a warrant for arrest of Mohanlal Doshi in view of the latter's absence from Court on the date feed. Accused No. 1 granted that application. On September 26, 1957, Mohanlal Doshi appeared before accused No. 1 and requested him to discharge the warrant. Accused No. 1 complied with his request, and on the undertaking given by Mohanlal to appear before the Court on October 16, 1957, it was directed that the warrant be cancelled. The case then stood adjourned to October 16, 1957. On September 30, 1957, there was a fair at the village Korhale, and accused No. 2 was posted as a constable on duty at the fair. Accused No. 2 met Mohanlal at the fair and told him that he had a message from accused No. 1 about the Chapter proceedings. Accused No. 2 informed Mohanlal that accused No. 1 had asked him to inform Mohanlal that if the latter desired to be “acquitted” in the Chapter proceedings, he—Mohanlal—should pay Rs. 400 to accused No. 1. Mohanlal told accused No. 2 that the demand was excessive and offered to pay Rs. 100. Accused No. 2 told Mohanlal that Rs. 100 were inadequate, and that he was under orders of transfer and that Mohanlal may accompany him to the house of accused No. 1 and settle the figure directly with accused No. 1. Accused No. 2 had received orders of transfer on September 30, 1957, from Rahata to Ahmednagar. He left charge of his duties at Rahata on October 6, 1957, and proceeded to Ahmednagar by the evening motor bus on October 13, 1957, and joined duty at Ahmednagar on the next day. On October 13, 1957, accused No. 2 before he left Rahata had met Mohanlal and informed him that he was leaving for Ahmednagar in the evening and had asked Mohanlal to accompany him. In the evening of October 13, Mohanlal and accused No. 2 proceeded from Rahata and reached Ahmednagar at about 8 p.m Mohanlal arranged to put up for the night at the Arya Nivas Hotel, and accused No. 2 left to ascertain whether accused No. 1 was at home. He returned after some time and informed Mohanlal that accused No. 1 had agreed to see Mohanlal. Accused No. 2 and Mohanlal then proceeded to the house of accused No. 1 at about 9 p.m There was then a meeting between accused No. 1 and Mohanlal. Accused No. 1 told Mohanlal that he had sent word with accused No. 2 demanding Rs. 400 and should Mohanlal pay him Rs. 400 an order of discharge in the Chapter proceeding will be passed. Mohanlal protested that the amount was very large and he was unable to pay the same. Accused No. 1 then explained to him that Mohanlal was not likely to succeed in the case, and that even if he went in appeal, he may have to spend a large amount. After some discussion it was agreed that Mohanlal should pay to accused No. 1 Rs. 200 in consideration of the latter agreeing to discharge Mohanlal in the Chapter proceedings. It was agreed that the amount was to be paid on October 16, 1957.

3. At 11 a.m on October 16, 1957, Mohanlal attended the Court of accused No. 1, Accused No. 2 met him and took him aside and asked him whether he had brought the money agreed to be paid. Mohanlal stated that he had brought some gold, but as it was a Wednesday and the local bazar was closed, it could not be sold and promised to secure the amount on the next day. Accused No. 2 then went into the chamber of accused No. 1 and he came out after some time and told Mohanlal that he may arrange for payment of the amount on the next day. The case was then adjourned to November 4, 1957, as some of the witnesses were not present. After leaving the Court room Mohanlal thought of approaching the Anti-Corruption Police at Ahmednagar, and he met one Patki. Sub-Inspector of Police, Anti-Corruption Branch, Ahmednagar, and narrated to him what had transpired. Patki recorded the complaint of Mohanlal and sent up a report to the Deputy Superintendent of Police, Anti-Corruption, Poona, requesting the latter to arrange for a trap. Patki asked Mohanlal to meet him on the next day. On October 17, 1957, the Deputy Superintendent of Police Mr. Eakeri arrived at Ahmednagar. He was accompanied by Divekar, Inspector of Police, and his police constables. Mohanlal met Patki at about 3 p.m and he was taken to Kakeri some time later. The statement of Mohanlal was verified by Kakeri and Patki was requested by Kakeri to secure panchas for the trap. In the presence of the panchas Mohanlal repeated his story. Mohanlal was then searched and it was found that there was no money on his person. Thereafter currency notes of the value of Rs. 200 were handed over to Mohanlal. These currency notes were smeared with anthracene powder and were handed over to Mohanlal for being delivered to accused No. 1 if a demand for bribe was made by the latter. The signal to be given if the bribe was accepted by accused No. 1 was also settled. A panchanama about the delivery of the currency notes was prepared. Thereafter Mohanlal, three panchas, Kakeri and Divekar proceeded towards the house of accused No. 1 at about 8-45 p.m Kakeri stood somewhere near the entrance to the street in which was the house of accused No. 1, while Divekar stood at some distance. Mohanlal proceeded to the house of accused No. 1, and found both the accused in the front apartment of the house. Accused No. 1 asked Mohanlal if he had brought the money and Mohanlal replied in the affirmative. Mohanlal then took out the currency notes and handed over the same to accused No. 1. Accused No. 1 counted the currency notes and put the same in the outer pocket of his bush coat. At that time accused No. 2 was standing in the room. Mohanlal said that accused No. 1 should “remember his work” and discharge him in the Chapter case. Accused No. 1 replied that Mohanlal need not worry about that. Mohanlal then proceeded to the gallery and lighted a cigarette which was the signal originally arranged between him and the police officers to signify that the bribe was given and accepted. Mohanlal then returned to the room, and immediately the raiding party consisting of Kakeri, Divekar and the panchas entered the house of accused No. 1. Kakeri disclosed his identity and asked accused No. 1 to show his hands. They were examined under the ultra violet light and found to be smeared with anthracene powder. Kakeri asked accused No. 1 whether he had received any bribe from Mohanlal. Accused No. 1 gave no reply and pointed out with his fingers to the pocket of his bush coat. The pocket of his bush coat was also found smeared with anthracene powder. On being asked, accused No. 1 produced the currency notes. On examination the currency notes were found to be the same which were handed over to Mohanlal for being given as bribe to accused No. 1. Accused No. 1 was then searched and no other amount was found on his person. The person of accused No. 2 was also searched anti no incriminating articles were found. A search of the person of Mohanlal was also taken and beside a cigarette and a match-box nothing else was found on his person, A panchanama in respect of all the three searches was made. Thereafter Kakeri recorded the statements of several persons and after enquiries submitted the papers to the D.I.G, Anti-Corruption. A complaint was then lodged on November 9, 1957, against the two accused. The requisite sanction for prosecuting the two accused was obtained in March 1958, and the two accused were arrested and a charge-sheet was submitted against accused No. 1 for the offence under s. 161 of the Indian Penal Code and against accused No. 2 for the offence under s. 165A of the Indian Penal Code. The accused were tried before the Special Judge at Ahmednagar.

4. Before the Special Judge, the prosecution examined, beside Mohanlal and the panchas, Kakeri, Patki and the other police officers and the Prosecuting Jamadar attached to the Court of accused No. 1. Mohanlal substantially deposed to the story which we have set out as the prosecution case and his evidence tallied with, the story related by him in his complaint, recorded by Patki. His story was corroborated by the testimony of the police officers and the panchas.

5. Accused No. 1 in his statement denied that he had demanded any illegal gratification from Mohanlal. Accused No. 2 also denied that in his presence any illegal gratification was given by Mohanlal and contended that he had not carried out any negotiations for procuring illegal gratification from Mohanlal. Accused No. 1 admitted that he had received Rs. 200 from Mohanlal, but he explained that six or seven months ago accused No. 2 had borrowed Rs. 200 from him promising to return the same within 2 or 4 days, that thereafter accused No. 2 was transferred from Rahata to Ahmednagar and on October 4, 1957, he returned by rail to Ahmednagar to join duty and thereafter when asked about the amount which was borrowed, accused No. 2 told him that he (accused No. 2) had given the amount to a resident of Rahata and that he will get the amount within 2 or 4 days, and the person to whom the money was given was Mohanlal, and that accused No. 2 told him that if Mohanlal brought the money the same may be accepted. Thereafter, according to accused No. 1, on October 17, 1957, at about 8-30 p.m when he was sitting with accused No. 2 in his house, a stranger entered. Accused No. 1 stated that he asked the stranger who he was and why he had come, and the stranger stated that he had borrowed Rs. 200 from accused No. 2 and he had come to return the same, that in the meanwhile accused No. 2 told the stranger that as the amount was taken from accused No. 1 the same be returned by him to accused No. 1 and that accordingly the stranger gave the amount to accused No. 1. He stated that he counted the currency notes of Rs. 200 and accepted the same and put them in the pocket of his bush coat and thereafter the stranger went out on the pretext that he wanted to spit but he did not know what he did there and immediately the police and the panchas arrived and the currency notes of Rs. 200 were when demanded handed over to them.

6. Accused No. 2 also related a similar story. He stated that when he was posted at Rahata, Mohanlal had through his cousin Uttam Bhikaji requested him for a loan of Rs. 200 and that even though he was originally unwilling to advance a loan on the request of Uttam Bhikaji the amount was advanced. He then stated that he gave the amount to Mohanlal at Rahata on the latter promising to return the same within two or three days; that he had borrowed the money from accused No. 1 promising to return the same within 2 or 4 days and as Mohanlal avoided repayment, he, accused No. 2, reprimanded Mohanlal and that thereafter there was “some tension” between him and Mohanlal, that thereafter he was transferred to the Cantonment Police Station and before he gave up charge at Rahata he again demanded repayment from Mohanlal. He further stated that because Mohanlal promised to repay the debt at Ahmednagar, he gave Mohanlal the address of accused No. 1, he having no permanent residence at Ahmednagar, and told him that if he was not present the money may be handed over to accused No. 1 because he, accused No. 2, had borrowed the same from the former. He further stated that he went to Ahmednagar by the night train on October 13, 1957, and joined duty on October 14, and thereafter Mohanlal came on the night of October 17, 1957, and handed over the money to accused No. 1 at his direction because the amount, which was advanced to Mohanlal, was borrowed from accused No. 1 for payment to Mohanlal.

7. The Special Judge was of the view that the story of the two accused that a loan was advanced by accused No. 2 to Mohanlal and that in repayment of that loan the currency notes of Rs. 200 were given by Mohanlal to accused No. 1 in the house of the latter on October 17, 1957, could not be accepted. In the view of the Special Judge that story was ‘unnatural’, but he observed that it was not correct to say that because the defence failed to establish the defence case about a loan advanced by accused No. 2 to Mohanlal and repayment thereof that the prosecution case was established. He observed:

“Such an approach to the question has always been objected to on the ground that it is for the prosecution to prove its case in a criminal trial and it is only while considering whether the prosecution has proved its case that incidentally and where necessary the criminal Court would have to consider the case made for the defence. If, therefore, the prosecution has not established its case beyond reasonable doubt by the evidence led, it would not be permissible to record a conviction merely because the defence theory appears to the Court to be unreasonable or does not appear to have been established.”

8. The Special Judge then proceeded to consider the prosecution evidence and observing that on several important particulars the story of Mohanlal was not corroborated and further observing that Mohanlal was not a person “who could be said to be of an unimpeachable character whose evidence could be readily accepted,” the learned Judge acquitted that accused. Against that order this appeal has been preferred.

9. There is no dispute that accused No. 1 in the presence of accused No. 2 received Rs. 200 from Mohanlal. The story that accused No. 1 had given a sum of Rs. 200 to accused No. 2 and that accused No. 2 advanced that sum of money to Mohanlal is not supported by any reliable evidence, and, in our judgment, appears to be entirely improbable. There is no evidence on the record to show that before accused No. 2 was posted at Rahata he knew Mohanlal. It is the case of accused No. 2 that he was introduced to Mohanlal who was a stranger to him by his cousin Uttam Bhikaji. Why accused No. 2 should be willing to advance Rs. 200 to Mohanlal has not been attempted to be explained in the evidence or before us. There is not even a scrap of documentary evidence which supports the case of the defence that a loan was advanced by accused No. 2 to Mohanlal. Evidently accused No. 2 is not a money-lender, and even if he was willing to advance a loan of a sum of money which was not negligible, he would at least have taken some writing from Mohanlal acknowledging receipt of the money and agreeing to repay the same. Accused No. 2 admits that he could not himself advance the loan. There was no adequate reason why he should borrow Rs. 200 from his father-in-law without disclosing the reason why he wanted the amount and advance the same to Mohanlal. There is, again, no reason suggested by accused No. 1 as to why on a mere request made by accused No. 2 he was prepared to part with Rs. 200 without even ascertaining the purpose for which the amount was required. The case sought to be made by the defence that accused No. 1 gave Rs, 200 to accused No. 2, and the latter advanced it to Mohanlal whose case was pending before accused No. 1, is not supported by any reliable evidence, and strikes us as extremely improbable. Even the date on which the amount was advanced by accused No. 2 to Mohanlal is not disclosed. Again, if accused No. 2 had made an advance of a loan to Mohanlal, there was no reason why he should have asked accused No. 1 to receive the amount from Mohanlal. Accused No. 1 must have realised, when Mohanlal entered his house, that the latter was a litigant who was concerned in a case before him; and if his story about a loan were true, he would as a prudent man not have accepted the money from Mohanlal but would have asked accused No. 2 to settle his dealing elsewhere. The cousin of accused No. 2 Uttam has not been examined in the Court below, and beyond the bare statement of the two accused there is no evidence to show that in fact Rs. 200 were advanced by accused No. 1 to accused No. 2 and that accused No. 2 had advanced that amount to Mohanlal and in repayment of the loan Mohanlal paid Rs. 200 to accused No. 1 on October 17, 1957. On the evidence, we have no doubt that the learned trial Judge was right in holding that the story of the defence that the amount of Rs. 200 paid by Mohanlal to accused No. 1 was in repayment of the loan alleged to have been given to Mohanlal cannot be accepted.

10. The question which then falls to be determined is whether this payment of Rs. 200 by Mohanlal was illegal gratification given as reward or motive for rendering service to Mohanlal, i.e for discharging Mohanlal in the Chapter proceedings pending before accused No. 1, or whether it was for some innocuous purpose. As we have already observed, Mohanlal had on October 16, 1957, related before Patki a detailed story as to the various meetings and the conversation which he had with accused No. 2, and also a report about the conversation which he had with accused No. 1 on September 30, 1957. This story of Mohanlal is partially corroborated by independent evidence. We have the evidence of the Prosecuting Jamadar Sayyar Mir Akbar who stated that on October 16, 1957, accused No. 2 attended the Court of accused No. 1. He has also deposed to the circumstances in which the case against Mohanlal was adjourned on September 25, 1957. Again, the record of the Magistrate corroborates the testimony of Mohanlal about the various proceedings in the Chapter case. The record of the Police Department supports the story of Mohanlal that on the night of September 30, 1957, accused No. 2 was posted on duty at the Korhale fair, that accused No. 2 had been transferred from Korhale and that accused No. 2 joined duty at Ahmednagar on October 14, 1957. It is difficult to believe that if the movements of accused No. 2 were not known to Mohanlal and accused No. 2 had not met Mohanlal from time to time, Mohanlal could give in his complaint the details which he has given.

11. It is true that the antecedents of Mohanlal are not impressive. He has admitted that complaints were filed against him at the Shrirampur Police station wherein it was alleged that he had received stolen property and that complaints were also filed against him at Rahata Police station that he had committed offences under the Prevention of Gambling Act. It also appears that he had been convicted for consuming liquor without a permit; and Chapter proceedings were pending against him wherein it was alleged that he was habitually drinking and gambling and holding out threats to the police. It is, therefore, necessary to scrutinise the evidence of Mohanlal with some care. But after considering the evidence of Mohanlal, corroborated as it is by the circumstances which we have set out earlier, we see no reason to discard his testimony as the learned Judge in the Court below appears to have done. A person who lends himself to be a tool in the hands of the police in a trap may evidently be regarded as a partisan witness and his evidence requires corroboration. But if from the record it appears-that the payment of the amount by Mohanlal could not on any other reasonable hypothesis be in satisfaction of some liability of Mohanlal to accused No. 1, in our judgment, an inference inevitably arises that the amount was paid to accused No. 1 as bribe.

12. But the decision, in our judgment, need not rest merely on the evidence of Mohanlal. Section 4 of the Prevention of Corruption Act, 1947, justifies in the circumstances of the case the raising of a presumption which comes to the aid of the prosecution. By sub-s. (1) of s. 4 of the Prevention of Corruption Act it is provided:

“Where in any trial of an offence punishable under s. 161 or s. 165 of the Indian Penal Code it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said s. 161 or as the case may be, without consideration or for a consideration which he knows to be inadequate.”

13. On the plain words of the section, in trials for offences under s. 161 of the Indian Penal Code, from the acceptance or obtaining or from agreeing to accept or attempting to obtain any gratification which is other than legal remuneration or any valuable thing, a presumption arises that the person who received the gratification or agreed to receive or attempted to obtain the same or a valuable thing did it as a motive or reward such as is mentioned in s. 161 of the Indian Penal Code. The ambit of the presumption was recently explained by their Lordships of the Supreme Court in State Of Madras v. A. Vaidyanatha Iyer . [1958] S.C.R 580.. In delivering the judgment of the Court, Mr. Justice Kapur observed (p. 589):

“…Therefore where it is proved that a gratification has been accepted, then the presumption shall at once arise under the section. It introduces an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused. It may here be mentioned that the Legislature has chosen to use the words ‘shall presume’ and not ‘may presume’, the former a presumption of law and latter of fact. Both these phrases have been defined in the Indian Evidence Act, no doubt for the purpose of that Act, but s. 4 of the Prevention of Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law of evidence, e.g, presumptions, and therefore should have the same meaning… It is a presumption of law and therefore it is obligatory on the Court to raise this presumption in every case brought under s. 4 of the Prevention of Corruption Act because unlike the case of presumptions of fact, presumptions of law constitute a branch of jurisprudence.”

14. On the findings recorded by us, therefore, a presumption under s. 4(1) of the Prevention of Corruption Act arises that the amount received by accused No. 1 was received as a reward or motive for rendering service to the complainant Mohanlal. But Mr. Daundkar, who appears on behalf of the accused, contends that the amount received by the accused could not be said to be “gratification” other than legal remuneration, and unless the prosecution establishes by evidence that the payment was made and accepted as gratification other than legal remuneration, the presumption does not arise. We are unable to accept the contention of Mr. Daundkar. Accused No. 1 does not even claim that he has rendered any service to Mohanlal for which he was entitled to receive legal remuneration from the latter. Accused No. 1 was a public servant employed as an Executive Magistrate at the relevant time and normally the only legal remuneration which he could earn was his salary from the State for performing his official duties. It has not been suggested that the amount of Rs. 200 received by accused No. 1 was remuneration for the performance of any other duty and to which accused No. 1 was lawfully entitled.

15. Mr. Daundkar, however, contends that even if the payment received is not legal remuneration it is still not “gratification”. The expression “gratification” is not defined in the Prevention of Corruption Act, and s. 161 of the Indian Penal Code states in the third paragraph that the word “gratification” is not restricted to pecuniary gratification, or to gratifications, estimable in money. That, strictly speaking, is not a definition of the expression “gratification”. In its dictionary meaning, the expression “gratification”, is inclusive of all satisfaction of desire or appetite, and we agree with the view of the Allahabad High Court in Promod Chander Shekhar v. Rex . [1950] All. 382., that the expression is used in s. 161, Indian Penal Code, in the sense of anything which gives satisfaction to the recipient. Prima facie, therefore, voluntary acceptance of an amount of money or a valuable thing by a public servant will amount to acceptance of gratification.

16. Mr. Daundkar on behalf of the accused placed strong reliance upon a judgment of this Court in State v. Pandurang Laxman Parab . 1958 60 Bom. L.R 811., in support of his contention that by merely proving that accused No. 1 accepted Rs. 200 given to him by Mohanlal it is not established that he accepted gratification within the meaning of s. 4(1) of the Prevention of Corruption Act. In that case, the complainant had given Rs. 8 to a public servant in pursuance of some arrangement, and the prosecution contended that a presumption under s. 4(1) of the Prevention of Corruption Act that the amount was received by the public servant as gratification arose upon proof of the fact of payment. Mr. Justice Datar in delivering the judgment of the Court observed (p. 813):

“…for the raising of the presumption under s. 4, it is, in our judgment, necessary for the prosecution to prove that not merely a payment of money or in kind was made over to the accused, but it must be further proved by the prosecution itself that such payment amounted to gratification other than legal remuneration. A mere payment without more would not, in our view, amount to gratification other than legal remuneration, and if it does not amount to gratification other than legal remuneration, there is no scope for raising the presumption under s. 4 of the Prevention of Corruption Act.”

17. Mr. Justice Datar also observed (p. 814):

“…We are disposed to think that acceptance of gratification other than legal remuneration gives rise to a presumption that gratification was accepted as a reward or motive, while the obtaining of a valuable thing gives rise to a presumption that it was obtained without consideration or for a consideration which the accused person knows to be inadequate. Section 4 refers to two offences one under s. 161 and the other under-s. 165 of the Indian Penal Code. The words ‘any gratification’ in the section must be read when we are considering the offence under s. 161 of the Indian Penal Code and the words ‘any valuable thing’ occurring in the section must be read in reference to the offence under s. 165 of the Indian Penal Code.”

18. If these observations were necessary for the decision in that case, we would have respectfully followed them. But, in our view, the learned Judges in that case have observed that they “were satisfied on the evidence that the prosecution failed to prove that amount of Rs. 8 which was got produced from the accused was any gratification other than legal remuneration”, and on that view the observations do not appear to be strictly necessary. In our view, the expressions “gratification” as used in s. 161 and “valuable thing” as used in s. 165 of the Indian Penal Code are not mutually exclusive in their connotations. Acceptance of a valuable thing by a public servant may amount to acceptance of gratification within the meaning of s. 161. By s. 161 accepting or agreeing to accept or attempting to obtain gratification other than legal remuneration as a motive or reward for doing or forbearing to do an official act is penalised; by s. 165 mere acceptance by a public servant of a valuable thing without consideration or for consideration which he knows to be inadequate from a person concerned in a proceeding or business transacted by the public servant is penalised—the question of motive or reward being not material. By s. 4 of the Prevention of Corruption Act in a trial of a public servant for an offence under s. 161, when it is proved that the public servant has accepted or agreed to accept any gratification or any valuable thing the Court is required to raise a presumption, that he has accepted or agreed to accept the same as a motive or reward for doing or forbearing to do an official act. It is one of the essential ingredients of the offence under s. 161 of the Indian Penal Code to be established by the prosecution that gratification was accepted or agreed to be accepted or attempted to be obtained as a motive or reward for performing an official act. By enacting s. 4(1) of the Prevention of Corruption Act, the Legislature has not only dispensed with the proof of that ingredient by the prosecution, but has imposed upon the person accused, when it is proved that he has accepted or obtained or agreed to accept or attempted to obtain gratification other than, legal remuneration, the burden of proving that, it was not as a motive or reward that the gratification was obtained. The Court is required to raise the statutory presumption subject to the limits prescribed by cl. (3) of s. 4 when it is proved that the public servant tried for an offence under e, 161 of the Indian Penal Code has received gratification. If it be granted that the expression “gratification” is used in its primary meaning, we fail to see what, beside voluntary acceptance by a public servant of a valuable or other thing which satisfies his desire or appetite, the prosecution is required to prove before the presumption under s. 4 may arise.

19. Reliance was also sought to be placed by Mr. Daundkar upon The State v. Vishnu Narayan Kulkarni . 1956 Criminal Appeal No. 1299 of 1955, decided by Gajendragadkar and Gokhale, JJ., on September 4, 1956 Unrep... In that case, Mr. Justice Gajendragadkar in delivering the judgment of the Court observed:

“Before asking the Court to draw the statutory presumption under s. 4(2) the prosecution must prove that money has been paid to a public servant in the first instance. A public servant is nevertheless a private individual and money may be paid to him not in his capacity as a public servant but in his capacity as a private individual. It would be unreasonable to assume that whenever money is paid to a person holding a public office it is paid to him as a public servant. In our opinion, the first essential fact which must be proved by the prosecution is that money has been paid to a public servant. It would also be necessary for the prosecution to show that the money which is paid is other than legal remuneration. In other words, the bare fact of the passing of the money from one hand to another would not raise the presumption if the receiving hand is the hand of a public servant without Prima facie evidence to show that the money which has passed is other than legal remuneration; and in proving this part of the case the prosecution would inevitably in every case have to rely to some extent on evidence other than the payment of the money itself.”

20. In that case, the Court was of the view that the evidence of the witnesses for the prosecution was unreliable and the bare fact established before the Court which could not be challenged was the passing of money from a private individual to a public servant, the former being prosecuted for the offence under s. 165A of the Indian Penal Code. It was in the context of those facts that the observations relied upon were made. “With respect, we agree with the view that “mere passing of money” from one person to another without more may not establish giving of gratification to a public servant. We may observe that the Legislature has in framing s. 4(1) cast the net very wide. A charge for accepting or agreeing or attempting to obtain a bribe may lightly be made; but the Court cannot on that account, except in cases covered by cl. (3) of s. 4, refuse to raise the presumption. The presumption, it is true, is not one which is required to be rebutted by evidence establishing the defence of the accused beyond reasonable doubt. If the person accused shows a reasonable preponderance of probability enough to support a verdict in a civil action, that the gratification was not as a motive or reward for doing or forbearing to do an official act, the burden may be deemed to be discharged.

21. Reliance was also sought to be placed upon Dinkar Shankar Valhamare v. The State . 1958 Criminal Appeal No. 1034 of 1958, decided by Gokhale and Miabhoy, JJ. on November 18, 1958 Unrep... In that case also the learned Judges were not satisfied on the evidence of the prosecution witnesses that it was proved that the accused had accepted any gratification. In that case even on the evidence of the main prosecution witnesses, the accused, who was charged for offences under s. 161 of the Indian Penal Code and s. 5(2) of the Prevention of Corruption Act, had some enforceable claim against the complainant. Mr. Justice Gokhale in delivering the judgment of the Court referred to State v. Pandumng Laxman Parab and also to The State v. Vishnu Narayan Kulkarni, and observed that the complainant's evidence was relied upon by the prosecution for showing that a ten rupee currency note was given to the accused by way of gratification, but that was not reliable evidence. The Court in that case appears to have taken the view that there was no reliable evidence other than the mere payment of money on which reliance could be placed. In our view, however, that case is also distinguishable from the present case.

22. On the view we take, there is the evidence of payment of Rs. 200 by Mohanlal to accused No. 1 on the night of October 17, 1957. That payment is, in our judgment, gratification; and even if the testimony of Mohanlal as to the previous negotiations and the agreement to pay the amount as consideration for discharging Mohanlal in the Chapter proceedings be regarded as somewhat weak, in our judgment, the prosecution is entitled to rely upon the presumption under s. 4(1) of the Prevention of Corruption Act to re-enforce that evidence. Accused No. 1 has not led any evidence to rebut that statutory presumption, and he must, therefore, be regarded as guilty of the offence under s. 161 of the Indian Penal Code.

23. Turning to the case of accused No. 2, it is true that he has not received the monies; but his participation in the previous negotiations is amply established by the testimony of Mohanlal which is corroborated by the record of the police department as well as by the evidence of the Prosecuting Jamadar. Accused No. 2 was present at the time when the amount of Rs. 200 was paid by Mohanlal to accused No. 1. It is the case of accused No. 2 that he had asked Mohanlal to go to his father-in-law's house and to pay the amount of Rs. 200. It is true that it was the case of accused No. 2 that payment was intended to be in repayment of the loan advanced by him to Mohanlal. The presence of accused No. 2 when payment was made and his full knowledge about the circumstances in which the amount was received by accused No. 1 and the relation subsisting between accused No. 1 and accused No. 2 are sufficient evidence, in our judgment, to justify the conclusion that accused No. 2 was privy to the demand for bribe by accused No. 1 and the giving of bribe by Mohanlal to accused No. 1 and that accused No. 2 assisted in the giving of the bribe. We are, therefore, of the view that accused No. 2 is guilty of the offence under s. 165A of the Indian Penal Code.

24. It is true that this is an appeal against an order of acquittal and there must be strong and compelling reasons which would justify this Court in interfering with the order of acquittal passed by the learned trial Judge. It appears, however, to us that the learned trial Judge ignored the presumption which arises under s. 4(1) of the Prevention of Corruption Act and expressed the view that merely because the defence story was unreliable, even if gratification was proved to be given by Mohanlal to accused No. 1, the prosecution case must fail. That view expressed by the learned Special Judge cannot be sustained. As we have already observed, the point of dispute in this case is limited. The prosecution case is that the amount of Rs. 200 was paid by Mohanlal to accused No. 1 as a bribe in pursuance of an arrangement previously made, whereas it was the case of accused No. 1 and accused No. 2 that the amount paid was in repayment of a loan given to Mohanlal. There was no dispute about the payment actually made; and if the learned Special Judge did not examine the facts proved in the context of the statutory presumption, we are unable to uphold that judgment.

25. We, therefore, set aside the order of acquittal passed by the learned Special judge and convict accused No. 1 of the offence under s. 161 of the Indian Penal Code and sentence him to suffer rigorous imprisonment for nine months and to pay a fine of Rs. 500 and in default of payment of fine to suffer rigorous imprisonment for six months in addition.

26. We also convict accused No. 2 for the offence under s. 165A of the Indian Penal Code and sentence him to suffer rigorous imprisonment for six months. Warrants to issue for the arrest of the two accused.

27. Order of acquittal set aside.