Criminal Appeal No 8 18 of 1979
From the Judgment  Order dated the 27101979 of the Madras High Court in Crl
A No 4 of 1977
AS Nambiar and KR Nambiar for the Appellant
V Krishnamurthy for the Respondent
The Judgment of the Court was delivered by FATHIMA BEEVI J
This appeal is directed against the judgment dated 27101979 of the High Court of Madras con firming the conviction of the appellant under section 161 I PC and under section 336 52 read with section 51d of the Prevention of Corrup tion Act
The appellant had been sentenced to undergo RI for 15 months under section 52 read with section 51d of the Prevention of Corruption Act with no separate sen tence under section 161 IPC
The brief facts of the case are as under
The appellant Sunderamoorthy was an Accountant cum Headclerk in the Tamil Nadu Forest Training School at Vaigai Dam
He took charge of the office on 6101975 and had been residing in a house opposite the training school
PW 3 the Principal of the training school issued exhibit P 2 show cause notice to the PW 1 Venkataswamy the canteen contractor as to why his licence for running the canteen should not be cancelled
This was on the basis of a complaint made by the appellant that the food served in the canteen was substand ard
The appellant had taken food in the canteen for two days and being dissatisfied discontinued the practice before the notice was issued
The prosecution case is that the accused thereafter sent for PW 1 informed him that he would help him in restoring the licence and demanded a bribe of Rs 100
On 21101975 the appellant is stated to have pressed the demand to PW 1
The latter made a complaint to PW 6 who thereupon arranged a trap
As instructed PW 1 was ready with ten rupees currency notes
PW 6 after drawing up a mahazar in the presence of PW 2 Jaganathan Assistant of the Office of the Special Tehsildar Usilampatti directed PW 1 to give the notes to the appellant
PW 1 handed over the money to the appellant who received the same
When PW 1 emerged PW 6 along with PW 2 confronted the appellant
The appellant produced the currency notes
PW 6 conducted the phenolphthalein test with reference to the fingers of the appellant
The test was positive the currency notes were seized and the appellant arrested
PW 3 the Principal produced the concerned file relating to show cause notice from the house of the appellant on the same day
Finally the appellant was chargesheeted
At the trial the prosecution witnesses supported the case
PW 1 affirmed the fact that the appellant made the demand and had also received the amount on 2210
The recovery of the currency notes from the appellant was not challenged
The plea of the appellant was that PW 1 had returned the amount due to him and there had been no demand for a bribe as there had been no occasion for doing so
The Trial Court accepted the prosecution evidence rejected the plea of the appellant and recorded the conviction
Before the High Court the contentions of the appellant were that there was no independent evidence regarding the demand the messenger who had contacted PW 1 at the 337 behest of the appellant had not been examined the solitary evidence of PW 1 is insufficient the explanation offered by the appellant was probable and there is no conclusive evi dence to hold that the appellant
was guilty
It was also urged that the appellant being new in the office could exert little influence on the Principal and the whole story is therefore improbable
These contentions did not find favour with the High Court
It took the view that the evidence of PW 1 find corroboration in the testimony of PW 2 and 6 and the contemporary records
The recovery of the currency notes from the appellant proves the guilty conduct of the appel lant in view of the presumption arising under section 41 of the Prevention of Corruption Act which has not been rebutted
The decisions of the Court in State of Rajasthan vs Mohamed Habeeb  CI Ernden vs State of Uttar Pradesh  and Lohana Kantilal vs State AIR 1954 Saurashtra 12 1 were referred to
The High Court thought that though the conviction under section 161 IPC and section 52 of the Prevention of Corruption Act is to be maintained no separate sentence need be award ed under section 161 IPC
The appellant has reiterated the contentions before us
The learned counsel appearing for the appellant however maintained that the appellant had a consistent case even from the earliest opportunity that the currency notes found in his possession was the money returned by PW 1 the cir cumstances of the case would probabalise this case of the appellant and the presumption if any arising under section 4 is rebutted and the conviction cannot therefore be sus tained
PW 6 has stated at the time of the seizure the explanation offered by the appellant was that PW 1 had returned the loan and that he had given the money for the Dipawali
The case that has been developed in the course of the trial is not that of a loan transaction but payment of an advance of Rs 125 in the canteen when the appellant started to take food there
The case of Dipawali gift or return of a loan given to PW 1 has not been even suggested
It cannot therefore be said that there had been consistent explanation for the appellant
PW 3 the Principal has averred in unequivocal terms that Ex
P 2 memo had been issued on the basis of the complaint received from the appellant that on getting the explanation from PW 1 he on 18101975 itself passed orders and closed the file
The order made was not disclosed to PW 1 and till 22101975 the file itself was kept by the appellant in his personal custody
He had thereafter received the amount of Rs 100 from PW 1
This conduct of the appellant is clearly incon sistent with the transaction of loan or return of money by PW 1 338 This Court observed in Dhanvantrai Balwantrai Desai vs State of Maharashtra AIR 1964 SC 575 as under Where any gratification other than legal gratification or any valuable thing is proved to have been received by an accused person the court is required to draw a presumption that the person received that thing as a motive of reward such as is mentioned in section 161 IPC Therefore the Court has no choice in the matter once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration
Of course it is open to that person to show that though that money was not due to him as legal remuneration it was legally due to him in some other manner or that he had received it under a transaction or an arrangement which was lawful
The burden resting on the accused person in such a case would not be as light as it is where a presumption is raised under section 114 of Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable
it must further be shown that the explanation is a true one
The words unless the contrary is proved  which occur in this provision make it clear that the presumption has to be rebutted by proof  and not by a bare explanation which is merely plausible
A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that a reasonable man would act on the supposition that it exists
Unless there fore the explanation is supported by proof the presumption created by the provision cannot be said to be rebutted
 On a careful consideration of the facts and circum stances we are not satisfied that the appellant had even by preponderance of probability succeeded in rebutting the presumption
The argument that clause d of section 51 of the Prevention of Corruption Act is not attracted on the proved facts is also not impressive
We find no merit in the appeal
It is accordingly dismissed
NVK Appeal dismissed


Summary:
The appellant was an Accountant cum Headclerk in the Forest Training School PW 3 the Principal of the training school and PW I the canteen contractor
The prosecution alleged that on the basis of a complaint made by the appel lant that the food served in the canteen was substandard PW 3 issued a show cause notice to PW I as to why the licence for the canteen should not be cancelled and that thereafter the appellant sent for PW I and demanded a bribe of Rs I00
As the appellant pressed the demand from PW 1 the latter made a complaint to PW 6 the inspector who arranged a trap
The trap was arranged
PW I handed over the money to the appellant who received the same
PW 6 conducted the phe nolphthalein test with reference to the fingers of the appellant
The test was positive
The currency notes were seized and the appellant arrested chargesheeted
The Trial Judge accepted the prosecution evidence rejected the pleas of the appellant that PW 1 had returned the amount of Rs 100 due to him that there had been no demand for a bribe as there had been no occasion for doing so and recorded conviction
The appellant appealed to the High Court and contended that there was no independent evidence regarding the demand the messenger who had contacted PW 1 at the behest of the appellant had not been examined the solitary evidence of PW I is insufficient and that the explanation offered by the appellant was probable and that there is no conclusive evidence to hold that the appellant was guilty
The High Court took the view that the recovery of the currency notes from the appellant prove his guilty conduct in view of the presumption arising under section 41 01  the Prevention of Corruption Act and that the same has not been rebutted and held that though the conviction under 335 section 161 IPC and section 52 of the Prevention of Corruption Act 1947 is to be maintained no separate sen tence need be awarded under section 161 IPC It accord ingly confirmed the conviction of the appellant and sen tenced him to undergo rigorous imprisonment for 15 months
In the appeal to this court it was contended that the appellant had a consistent case even from the earliest opportunity that the currency notes found in his possession was the money returned by PW I and that the presumption if any arising under section 4 was rebutted and the convic tion cannot therefore be sustained
Dismissing the appeal this Court HELD 1
The appellant has not even by preponderance of probability succeeded in rebutting the presumption under section 41 of the Prevention of Corruption Act
338C 2
The Court has no choice once it is established that the accused person has received a sum of money which was not due to him as a legal remuneration but to draw a presump tion that the person received the money as a motive of reward
However it is open to that person to show that though that money was not due to him as legal remuneration it was legally due to him in some other manner or that he received it under a transaction or an arrangement which was lawful
The explanation offered by the person should be a true one and not one which is merely plausible
339B C F Dhanvantrai Balwantrai Desai vs State of Maharashtra AIR 1964 SC 575 referred to