TaxTMI 
TaxTMI 
2006 (1) TMI 608
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....cution 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 Badade was deleted, he found to his surprise that the names of the sons of Krishna Badade had also been entered. Krishna Badade and his sons had no objection for removal of their names from th....
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....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 Rs. 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 pursuance of it, the complainant came to his house on 6.10.1986 and paid him Rs. 300/- towards the amount outstanding to the Government, and it was received by him as government dues and not as a bribe for showing any official favour ....
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....osecution, 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 also not disputed. In these peculiar circumstances, this Court accepted the explanation, even though such explanation was not immediately offered to the Investigating Officer, but was given in the section 313 statement. But for such special facts, courts are w....
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....ctly 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 accused is reasonable and probable, the following words of caution in Chaturdas Bhagwandas Patel v. The State of Gujarat [AIR 1976 SC 1497] should be kept in mind before it can be said that the presumption stood rebutted : "Thus it had been indubitably established that....
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....t 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 notice of demand dated 6.9.1996 was sent to complainant to pay the dues cannot be accepted. It is obviously an afterthought. If no amount was due to the government from the complainant, the question of accused accepting it as payment towards a government loan does not arise. The evidence relating t....
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....vent. 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 assistance, where the dispatch of such communications is disputed or denied as in this case. Be that as it may. 15. It is no doubt true that if two views are possible and the view of the High Court acquitting the accused cannot be said to be wholly improbable, this Court will not interfere with the dec....