Mahboobkhan Pathan Vs. State of Maharashtra  INSC 102 (3 February 1997)
MOHAN PUNCHHI, K.T. THOMAS THOMAS.
was a Sub-Register in the Registration Department under Maharashtra Government.
The Special judge at Latur convicted him under Section 161 IPC and Section 5(2)
read with Section 5(1)(d) of the prevention of corruption Act, 1947 ('the act'
for short) for receiving a sum of Rs. 60/- as illegal gratification from one Shesherao
Patil (PW-1). Appellant was sentenced to undergo rigorous imprisonment for one
year and to pay a fine of Rs.200/- on each count. High Court of Bombay (Aurangabad Bench confirmed the
conviction and sentence and dismissed the appeal filed by the appellant.
official duties of the Sub-Registrar included, among other things, receiving
applications for certified copies of registered documents and issuance of such
was Sub-Registrar of Nilanga Sub Registry office.
Patil, an employee of postal department, was sin need of certified copies of
three sale deeds. When he approached the appellant he was told to submit
necessary applications on stamp paper and to pay an amount of Rs.20/- for each
certified copy. PW-1 reported the matter to the Anti Corruption Bureau. A trap
was arranged to catch the appellant red-handed. On 8.8.1986 PW-1 went to the
office of the appellant and presented the applications for copies of the sale
deeds which he required and then he paid Rs.60/- to the appellant. As soon as
appellant put the amount in his shrift pocket PW-1 transmitted a signal to the
waiting anti corruption squad and they rushed to the office and caught him
red-handed. These are the facts found against the appellant.
is no scope for any dispute that appellant received the amount of Rs.60/- from
PW-1. In fact learned counsel for the appellant did not dispute the aforesaid
finding. The stand of the appellant is that he received the amount as advance
money which he was required to collect as per the Rules in force. His further
case is that before he could make any entry in the books he was caught by the
anti corruption officials on the premise that he received illegal gratification
when questioned by the trial judge under section 313 of the code of criminal
Procedure stated, inter alia, thus: "On 7.8.1986 the complainant came to
may office and told me that he required copies of three sale deeds. I had asked
him to submit three applications in writing and bring Rs.20/- for each copy to
be paid in advance. On 8.6.1986 the complainant gave me application and paid
Rs.20/- for each copy. Thus in all he paid Rs.60/-. I was about to issue
receipt but just then people rushed into may office and therefore I could not
issue receipts". His contention was repelled by the trial judge as well as
by the High Court. Learned single Judge of the High Court while confirming the
conviction and sentence has mainly relied on the presumption of law envisaged
in Section 4(1) of the Act.
counsel for the appellant contended that both courts failed to take into
account certain broad probabilities in this case and it resulted in the wrong
conclusion that he received the amount as illegal gratification.
presumption of law contemplated n Section 4(1) of the Act is in para materia
the same as the legal presumption mentioned in Section 20(1) of the Prevention
of Corruption Act, 1988. Section 4(1) of the Act enjoins that upon proof of a
certain premise "it shall be presumed, unless the contrary is proved
that" he accepted the gratification as a motive or reward etc. If the
primary condition specified in the sub-section is satisfied by the prosecution
the court is legally bound to proceed on the footing that the public
servant/accused has accepted the gratification as a motive or reward for doing
any official work in exercise of official functions. The burden stands shifted
would not become necessary until prosecution proves that what the accused has
accepted was gratification. Of course the court can draw presumption on premises
even de hors section 4(1) of the Act because Section 114 of the Evidence Act
empowers the court to do so. But the difference between the presumption under
Section 114 of the Evidence act and the legal presumption under Section 4(1) of
the Act is that under former it is only discretionary for the court to draw
presumptions as the court can as well decline from doing so, but under section
4(1) it is incumbant on the court to proceed on the presumption as the burden
stands transferred to the accused to prove the contrary. (Vide Dhanvantrai Balwantrai
Desai vs. State of Maharashtra, AIR 1964 SC 575).
primary condition for acting on the legal presumption under Section 4(1) of the
Act is that the prosecution should have proved that what the accused received
was gratification. The word "gratification" is not defined in the
Act. Hence it must be understood in its literal meaning. In the Oxford Advanced
Learner's Dictionary of Current English, the work "gratification" is
shown to have the meaning "to give pleasure or satisfaction to". The
word "gratification" is used in Section 4(1) to denote acceptance of
something to the pleasure or satisfaction of the recipient. If the money paid
is not for personal satisfaction or pleasure of the recipient it is not gratification
in the sense it is used in the section. In other words unless the prosecution
proves that the money paid was not towards any lawful collection or legal
remuneration the court cannot take recourse to the presumption of law
contemplated in Section 4(1) of the Act, though the court is not precluded from
drawing appropriate presumption of fact as envisaged in Section 114 of the
Evidence Act at may stage.
the crucial question, in the light of the defence adopted, is whether the
amount of Rs.60/- paid by PW-1 was for the personal satisfaction or pleasure of
there is reason to doubt whether the money was received as lawful collection
the benefit of it cannot be denied to the appellant.
dealing with that crucial question we have to bear in mind certain broad
aspects in this case. First is that appellant has been consistently maintaining
the stand that as per the Rules governing issuance of certified copies from a
sub Registry office an applicant has to pay some charges the amount of which
depends on the length of manuscripts to be copied, besides a fee for search.
Secondly, PW-1 Shesherao Patil himself admitted that when he submitted
application for certified copies he was not aware about the charge s required
for each copy. In his own words - "when I submitted application for copies
I was not ware about the charges required for each copy. As the accused
demanded Rs. 20/- for each copy I felt that he was demanding a bribe". So
it was only the surmise of PW-1 and it was not what appellant told him. The
third feature is, when applications were presented the appellant asked PW-1 to
pay Rs.20/- each copy an when the money was given the appellant counted it in
the presence of all those who were present then and he kept it in his pocket.
above context we may examine the relevant Rules of the Maharashtra Registration
Manual. Rules 345 to 355 pertain to "Searches and inspections, and grant
of copies etc." The material words in Rule 346 are these: "when an
applicant for copy is tendered, the application should be required to deposit
in advance an amount sufficient to cover the search fee for the whole period
mentioned in the application." Rule 347(iv) reads thus: "When an
application for copy is tendered, the applicant should be required to deposit
in advance an amount sufficient to cover the search fee for the who period
mentioned in the application." Rule 347(iv) reads thus: "When an
application for copy is presented personally and the fees are paid, the
probable date on which the copy will b e ready for delivery and the serial No.
of application should be endorsed on the receipt and on the counterfoil."
Rule 348(i) - "A Register of fees paid or of deposit or payment in lump
made by applicants either personally or by Money Order on account of searches
and copies should be maintained in form Appendix XXXIX in every office." A
reading of the above rules indicates that if appellant had made entries
regarding amount collected from PW-1 in the Register prescribed and if he had
prepared a receipt acknowledging payment of the amount of Rs.20/- per copy,
there would not have been any scope for a contention that the amount paid was
for gratification of the appellant.
single Judge of the High court highlighted three main reasons for repelling the
plea of the appellant.
is, there is no evidence to show that appellant talked anything to PW-1 about
any advance. Second is, appellant put the amount in his pocket instead of
keeping it in the drawer. Third is. appellant did not issue any receipt, and on
the contrary appellant told PW-1 to come to the office on the next Monday or
Tuesday to collect the copies. On the above reasons learned single Judge
concluded that the amount was not paid towards any legal charges.
closer scrutiny of the evidence unfurls a different profile on every one of
those three reasonings. When ht sub- registrar told the applicant that he had
to bear Rs.20/- per copy, the mere fact that he did not use the word
"advance" is hardly sufficient to conclude that what he required was
not the advance amount which he was legally obliged to collect from the
applicant. Similarly the act of keeping the amount in his pocket is not
decisive to conclude that it was intended for himself. Perhaps that could have
been the mode of his keeping the money safe till that day's amount was closed.
The third reason cannot be used against the appellant because as soon as
appellant collected the amount the signal was transmitted by PW-1 which was
immediately followed up as members of the anti corruption squad rounded him up.
Hence there would not have been sufficient interval for the appellant to made
entries in the Register or to prepare the receipt. Evidence shows that
appellant told PW1 to come to the office again on the next Monday or Tuesday only
as an answer to the querry made by PW1 as to when he was to go there again for
collecting the certified copies.
the above reasons we entertain a reasonable doubt, on the admitted facts, that
what appellant collected from PW-1 could have been the charges which he was
lawfully obliged to collect from any person applying for three copies of the
sale deeds. In such a situation it is only just and fair that benefit of the
aforesaid doubt is extended to the appellant albeit the last stage of this
therefore, upset the conviction and sentence passed on the appellant and acquit
him of the offences charged. His bail bond will stand discharged.