TMI Blog2006 (1) TMI 608X X X X Extracts X X X X X X X X Extracts X X X X ..... ort), and to pay a fine of ₹ 1,000/- and in default to suffer further RI for three months, with a direction that both the substantive sentences shall run concurrently. 2. The prosecution case was as under : - 2.1) The respondent was working as the Talathi of village Kodit, District Pune. One Mahadeo Bhimaji Badade (complainant) and his elder brother Baban were the owners of an ancestral field at village Kodit. They had taken a loan from one Krishna Badade and had secured the said land in his favour by way of a mortgage. The mortgage suit filed by the mortgagee ended in a compromise on 16.6.1973. In the year 1986, when the complainant obtained a '7/12 extract' in regard to the said land, he found that the name of the mortgagee was continued to be shown as the holder and person in possession. The complainant, therefore, requested the respondent/accused to delete the name of Krishna Badade in view of repayment of the mortgage loan in terms of the compromise. The accused informed the complainant that there will be some expenses in that behalf. Thereafter, when the complainant again went to the office of the accused on 6.9.1986 to verify whether the name of Krishna B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rty came inside and apprehended the accused and recovered the marked three currency notes (Rs.300/-) from his pocket. A Panchnama was drawn and the amount was seized. Statements of witnesses were recorded. After completing the investigation and necessary formalities relating to sanction, a charge-sheet was filed before the Special Court, Pune, under Section 161 IPC and Section 5(2) read with Section 5(1)(d) of the Act. 3. The defence as put forth in the cross-examination of the prosecution witnesses and the explanation given in the statement under section 313 of Cr.P.C was as follows :- Some amount was outstanding from the complainant in regard to a Tagai loan taken in the name of his elder brother Baban. The Tehsildar, Purandhar sent a communication dated 3.9.1986 to the accused stating that one Baban Bhimaji Badade of Kodit (brother of the complainant) was due in a sum of ₹ 2575.90 towards interest in respect of an engine loan taken in the year 1966. The accused was, therefore, instructed to recover the said amount and deposit it in the Government Treasury. Therefore, the accused sent a notice dated 6.9.1986 to the complainant, demanding payment of the amount due. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. It is undisputed that from 24th to 26th the Patwari was collecting loans in a collection campaign. It is, of course, true as observed by the High Court that when the investigating officer seized the amount from the accused Patwari, he did not offer the explanation that it was in relation to a collection of loan, but that by itself would not be sufficient to throw away the explanation offered by the accused in his statement under section 313 when such explanation could be held to be reasonable under the facts and circumstances of the case, as indicated by the learned Special Judge while acquitting the accused. In Punjab Rao's case (supra), it was admitted that on the date when the payment was made, the Patwari was on a collection campaign collecting loan amounts. The fact that the complainant was a debtor from whom amount was due to the government was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . 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 therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. ..... Something more, than raising a reasonable probability, is required for rebutting a presumption of law. The bare word of the appellant is not enough and it was necessary for him to show that upon the established practice his explanation was so probable that a prudent man ought, in the circumstances, to have accepted it. [Emphasis supplied] 10. Though, it is well-settled that the accused is not required to establish his explanation by the strict standard of 'proof beyond reasonable doubt', and the presumption under Section 4 of the Act would stand rebutted if the explanation or defence offered and proved by the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and kept it in his pocket; and that was followed by the Police party and Panch witnesses entering the house and seized the amount. 12. If the accused has received the money towards a Government loan or at least being under a bona fide impression that it was towards repayment of the Government loan, he will not be guilty. Let us examine whether the explanation by the accused is reasonable and plausible. The evidence clearly shows that no amount was due from complainant to the State. Even the case of the defence is that certain amount was due from Baban (complainant's brother) and the Tehsildar had instructed the accused by letter dated 3.9.1996 to recover the amount due from Baban. When no amount was due from complainant, and when the instruction of the Tehsildar was that the amount outstanding from Baban should be recovered, there is no explanation as to why the accused should send a demand notice to the complainant and not Baban on 6.9.1986. In fact, the trial court has referred to the partition between Baban and complainant three years before the incident. Be that as it may. When nothing is shown to be due from the complainant, the case put forth by the defence that a not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has attempted to offer some lame explanation as to why the notice dated 6.9.1986 was posted at Pune. It is clear that no notice dated 6.9.1986 was issued to the complainant and the accused has tried to create an explanation by securing a certificate of posting dated 6.9.1986 from Pune after the event. 14. A certificate of posting obtained by a sender is not comparable to a receipt for sending a communication by registered post. When a letter is sent by registered post, a receipt with serial number is issued and a record is maintained by the Post Office. But when a mere certificate of posting is sought, no record is maintained by the Post Office either about the receipt of the letter or the certificate issued. The ease with which such certificates can be procured by affixing ante-dated seal with the connivance of any employee of the Post Office is a matter of concern. The Department of Posts may have to evolve some procedure whereby a record in regard to the issuance of certificates is regularly maintained showing a serial number, date, sender's name and addressee's name to avoid misuse. In the absence of such a record, a certificate of posting may be of very little assi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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