TMI Blog1975 (8) TMI 131X X X X Extracts X X X X X X X X Extracts X X X X ..... a, an Inspector of the Undertaking approached the complainant and solicited a bribe of ₹ 125/- in consideration of giving the connection. lt was settled that ₹ 25/- would be paid on June 2(), 1968 and the balance of ₹ 100/- after the electric connection. The complainant had no intention to pay the bribe. Consequently, he contacted S. K. Katoch, Deputy Superintendent of the Anti-Corruption Police on June 20, 1968 at about 1 p.m. and apprised the latter about the demand of the bribe by Inspector Gupta. The Deputy Superintendent recorded the complainant's statement, Ex. P.W. l/A. He then co-opted Daya Nand Dua (PW2) and Bharat Prakash Khurana (PW 3), two clerks from the office of the Deputy Commissioner, and formulated a scheme for entrapping Gupta. 'the Police party reached the factory of the complainant at about 3.05 p.m. The complainant and the Panch witnesses went inside while the Police officers waited outside. The complainant received a message from Gupta through a Lineman that instead(l of the 20th, he would be coming on the following, day, that the installation of poles at the site had commenced and the complainant would be required to pay more amount ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wall. He inquired from mc as to where I was going. l told him that l was going to take my food. He directed me that after taking my food I should visit the complainant s factory where the labour was working and told me to ask Jain to pay the money which Guptaji had demanded. I did not know what sort of money it was and for what purpose it was to be paid by S. K. Jain and to be taken by Gupta. accused. One Mitter Sell was also present at that time when this talk took place between me and Gupta accused. I accordingly, after taking my food went to the complainant s factory and checked the work of the labour and then went to the complainant and asked him to pay me the money which had been demanded by Guptaji. . Complainant told me to send Guptaji but I told him that he had asked me to bring the money. He therefore paid me a, currency note of ₹ 100/- without disclosing anything that this was bribe money to be paid to Gupta co-accused. He further admitted that soon after the collection of this amount from the complainant, the D.S.P. came there with his party and recovered the same currency note from his possession. He added that he was only a labourer and was not in a position ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or reward such as mentioned in s. 161, Penal Code. The presumption however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. But the degree and the character of the burden of proof which s. 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under s. 101, Evidence Act rests on the prosecution.. While the mere plausibility of an explanation given by the accused in his examination under s. 342, Cr.P.C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderence of probability in his favour; it is not necessary for him lo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In any case, maintains the Counsel the appellant was guilty of abetment of an offence under sec, 161 Penal Code and s. 5 of the Act. We are unable to accede to this contention. In our opinion, this Act of the appellant was a neutral circumstance. It was not indicative of a guilty mind. The appellant explained that he had checked the labour working at site because he had been asked to do so by Inspector Gupta. This conduct of the appellant, therefore, was no ground to hold that he had received the G.C. Note of ₹ 100/- with the requisite mens rea. Evidently in collecting this currency note from the complainant he was Acting only as an innocent tool of Gupta. He was a mere labourer. Even in that humble position, he was not a member of the gang working at the installation site in the factory of the complainant. He was not concerned ill his official capacity with the installation work or the giving of power connection. Being an unconcerned menial, he was incapable of showing any favour or rendering any service to the complainant in connection with his official duties. One of the essential ingredients of the offence under s. 161, I.P.C. with which the appellant stands charged i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Act. Nor can the appellant be held guilty of abetting the alleged attempt made by Gupta to obtain the illegal gratification. Intention to aid The commission of the crime, is the gist of the offence of abetment by aid. Such intention, on the part of the appellant was lacking in this case. Moreover, Gupta, the principal, has been acquitted and exonerated of committing the offending act, the commission of which is alleged to have been aided by the small fry, the appellant. The charge under s. S (1) (d) of the Act also cannot be sustained for the reason that in the peculiar circumstances or the case, it could not be reasonably said that the appellant had obtained the currency-note by using some corrupt or illegal means or otherwise abusing his official position as a public servant. This point was canvassed on behalf of the appellant before the High Court but was negatived by it in these terms: In this case the appellant had told the complainant that he had been sent by Inspector Gupta and that he should pay the money. It has been held by the Special Judge while acquitting Inspector Gupta that he was not the person who had sent the appellant to collect any money from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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