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PETITIONER: V.D.JHANGAN

       Vs.

RESPONDENT: STATE OF UTTAR PRADESH

DATE OF JUDGMENT: 03/03/1966

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SUBBARAO, K. SHELAT, J.M.

CITATION:  1966 AIR 1762            1966 SCR  (3) 736  CITATOR INFO :  R          1968 SC1292  (8,9)  RF         1971 SC2474  (14)  E          1973 SC  28  (19,20)  F          1974 SC 773  (7)  R          1975 SC 899  (10)  RF         1981 SC1186  (11,13)  R          1990 SC1459  (30)

ACT: Prevention  of  Corruption Act, 1947 (2 of 1947),  s.  4(1)- Presumption  under section, when arises-Receipt of money  or valuable  thing  by  accused  whether  sufficient-Nature  of burden of proof on accused for rebutting such presumption.

HEADNOTE: The  appellant, an employee of the Ministry of Commerce  was tried for offences under s. 161 of the Indian Penal Code and s. 5(2) read with s. 5(1)(d) of the Prevention of Corruption Act  on the allegation that he received a sum of  money  and some  cloth from a trader.  He was convicted and his  appeal before  the High Court failed.  In appeal before this  Court the  questions that fell for determination related to :  (i) the circumstances in which a presumption under sub-s. (1) of s.  4 of the Prevention of Corruption Act could  arise,  and (ii)  the  nature  of the burden of proof  that  lay  on  an accused person to rebut such a presumption when it arises. HELD:(i)  For a presumption to be raised under s.  4(1) it  is not necessary for the prosecution to  prove  anything more than that money or other valuable thing was received by the  accused; it is not for the prosecution, for  the  above purpose,  to prove the incriminating character of  the  said payment. [739 E, F] Dhanvantrai Balwantrai Desai v. State of Maharashtra, A.I.R. 1964  S.C.  575 and C. I. Emden v. State of  Uttar  Pradesh, A.I.R. 1960 S.C 548, followed. (ii)The  burden  of proof lying upon the accused  under  s. 4(1) will be satisfied if the accused person establishes his case  by a prepared of probability and it is  not  necessary that  he  should  establish his case by the  test  of  proof beyond  a reasonable doubt.  The onus on an  accused  person may  well  be  compared  to the onus on  a  party  in  civil

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proceedings. [741 B] Woolmington v. Director of Public Prosecutions, [1935]  A.C. 462,  Rex  v. Carr-Briant, [1943] 1 K.B. 607  and  Harbhajan Singh v. Stale of Punjab, [1965] 3 S.C.R. 235, referred to. In  the present case the appellant had not proved  his  case even by the test of preponderance of probability.

JUDGMENT: CRIMINAL’APPELLATE JURISDICTION : Criminal Appeal No. 157 of 1964. Appeal  by special leave from the judgment and  order  dated March  20, 1964 of the Allahabad High Court (Lucknow  Bench) at Lucknow in Criminal Appeal No. 20 of 1962. Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appe- llant. 737 S. T. Desai, R. L. Mehta and 0. P. Rana, for the respondent. The Judgment of the Court was delivered by Ramaswami, J. The appellant was tried for offences under  s. 161,  Indian Penal Code and s. 5(2) read with s. 5(1)(d)  of the  Prevention  of Corruption Act by special  Judge,  Anti- Corruption,  Lucknow  who by his judgment dated  January  8, 1962  convicted  the appellant and sentenced  him  to  three years’  rigorous imprisonment and a fine of Rs.  2,000.   In default  for  payment  of fine  the  appellant  was  further ordered to undergo rigorous imprisonment for one year.   The appellant  preferred an appeal to the Allahabad High  Court, Lucknow  Bench, which dismissed the appeal by  its  judgment dated  March  20,  1964  and  affirmed  the  conviction  and sentence  imposed by the Special Judge upon  the  appellant. This appeal is brought, by special leave, from the  judgment of the Allahabad High Court, Lucknow Bench. The  appellant was employed as Assistant  Director  Enforce- ment,  Government of India, Ministry of Commerce  at  Kanpur and used to deal with matters regarding the cancellation  of licences of cloth dealers at Kanpur.  On or about  September 5,  1951 the appellant received a confidential letter  dated August  30, 1951 from the District Magistrate,  Kanpur.   On the  same date the appellant called one Ram Lal  Kapoor  who was  the  legal adviser of New Victoria Mills  Ltd.  at  his house.  The appellant showed him the letter of the  District Magistrate  and on the strength of that letter  he  demanded through Ram Lal Kapoor a bribe of Rs. 30,000 from Sidh Gopal for  saving  his licence from being cancelled.   It  appears that  Sidh Gopal was a partner of various firms  dealing  in cloth  and it was suspected that these firms were  indulging in  black-marketing  in  cloth.   Sidh  Gopal  came  to  the appellant  on September 9, 1951 to talk over the matter  and the  appellant made the same demand of bribe from  him.   On September 11, 1951, the appellant is alleged to have  agreed with ’Ram Lal Kapoor to receive a sum of Rs. 10,000 as first instalment  of  the bribe from Sidh Gopal  through  Ram  Lal Kapoor.   Accordingly on September 11, 1951 at about 8  p.m. the  appellant  went  to the house of  Ram  Lal  Kapoor  and accepted the bribe of Rs. 10,000 in currency notes and  also a  Than  of  long  cloth  from  the  said  Ram  Lal   Kapoor undertaking  that  in lieu thereof the appellant  would  not report against Sidh Gopal and thereby save his licence  from cancellation.   A raid had been prearranged and the  raiding party  consisting  of Shri Satish Chander P.W.  I  and  Shri Onkar  Singh P.W. 2, the District Magistrate and the  Senior Superintendent of Police respectively were lying in wait  at the  premises  of Ram Lal Kapoor.  At about 9. 45  p.m.  the

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appellant came out of the bungalow of Ram Lal Kapoor and  on the agreed signal being given, the raiding party came and on search  of the appellant an amount of Rs. 10,000  was  found from his person. 738 At the time of the recovery of the money the appellant  made a statement that the amount received by him was as a loan as he  wanted  to  purchase a bungalow.   The  defence  of  the appellant  was that he never negotiated with Ram Lal  Kapoor or Sidh Gopal regarding the bribe but the appellant had been falsely implicated because he had prosecuted one Bhola  Nath of  the  firm  of  M/s Mannulal Sidh Gopal  under  s.  7  of Essential  Supplies  Act  and the  District  Magistrate  had arrested  Bhola Nath and kept him under detention under  the powers conferred by the Preventive Detention Act.  In  order to take revenge for the arrest of Bhola Nath, Sidh Gopal and Ram Lal Kapoor had conspired together and falsely implicated the  appellant.  The Special Judge disbelieved the  case  of the  appellant  and  held  that  the  prosecution   evidence sufficiently  established the charges under S.  161,  Indian Penal  Code  and  S.  5(2)  read  with  s.  5(1)(d)  of  the Prevention  of  Corruption Act.  The findings of  the  trial court  have  been affirmed by the Allahabad  High  Court  in appeal  which  also rejected the case of  the  appellant  as untrue  and held that the amount of Rs. 10,000 was  received by  the  appellant  from Ram Lal Kapoor by  way  of  illegal gratification and not as a loan for purchasing a house. The   first   question  for  determination  is   whether   a presumption  under sub-s. (1) of S. 4 of the  Prevention  of Corruption Act arises "Where in any trial of an offence punishable under S.  161 or  S.  165 of the Indian Penal Code it is  proved  that  an accused  person has accepted or obtained, or has  agreed  to accept or attempted or obtain, for himself or for any  other person, any gratification (other than legal remuneration  or any  valuable  thing from any person, it shall  be  presumed unless the contrary is proved that he accepted or  obtained, or   agreed   to  accept  or  attempted  to   obtain,   that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said S.  161, or  as  the  case may be, without  consideration  or  for  a consideration which he knows to be inadequate." It was held by this Court in Dhanvantrai Balwantrai Desai v. State   of  Maharashtra(1)  that  in  order  to  raise   the presumption under this sub-section what the prosecution  has to   prove   is  that  the  accused  person   has   received "gratification other than legal remuneration" and when it is shown that he has received a certain sum of money which  was not  a legal remuneration, then the condition prescribed  by this  section  is satisfied and the  presumption  thereunder must be raised.  It was contended in that case that the mere receipt  of  any money did not justify the  raising  of  the presumption and that (1)  A.I.R. 1964 S.C. 575. 739 something more than the mere receipt of the money had to  be proved.  The argument was rejected by this Court and it  was held  that the mere receipt of the money was  sufficient  to raise  a  presumption  under  the  sub-section.   A  similar argument  was  addressed in C. I. Emden v.  State  of  Uttar Pradesh(1).  In rejecting that argument this Court observed: "If the word ’gratification’ is construed to mean money paid by way of a bribe then it would be futile or superfluous  to prescribe  for the raising of the presumption.   Technically it  may  no  doubt be suggested that the  object  which  the

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statutory  presumption serves on this construction  is  that the court may then presume that the money was paid by way of a  bribe as a motive or reward as required by s. 161 of  the Code.  In our opinion this could not have been the intention of the Legislature in prescribing the statutory  presumption under s. 4(1)." This Court proceeded to state: "It cannot be suggested that the relevant clause in s.  4(1) which deals with the acceptance of any valuable thing should be interpreted to impose upon the prosecution an  obligation to prove not only that the valuable thing has been  received by the accused but that it has been received by him  without consideration  or for a consideration which he knows  to  be inadequate.   The plain meaning of this  clause  undoubtedly requires  the presumption to be raised whenever it is  shown that  the  valuable thing has been received by  the  accused without  anything  more.  If that is the  true  position  in respect of the construction of this part of s. 4(1) it would be unreasonable to hold that the word ’gratification’ in the same  clause  imports the Necessity to prove  not  only  the payment of money but the incriminating character of the said payment.   It is true that the Legislature might  have  used the word ’money’ or ’consideration’ as has been done by  the relevant section of the English statute;........" It  must, therefore, be held that, in the  circumstances  of the  present  case, the requirements of sub-s. (1) of  S.  4 have  been fulfilled and the presumption thereunder must  be raised.  The next question arising in this case is as to what is the burden of proof placed upon the accused person against  whom the presumption is drawn under S. 4(1) of the Prevention  of Corruption  Act.   It  is well-established  that  where  the burden of an issue lies upon the accused, he is not required to  discharge that burden by leading evidence to  prove  his case beyond a reasonable doubt.  That is, (1)  A.I.R. 1960 S.C. 548. 740 of  course,  the  test prescribed in  deciding  whether  the prosecution  has discharged its onus to prove the  guilt  of the  accused;  but  the same test cannot be  applied  to  an accused person who seeks to discharge the burden placed upon him  under s. 4(1) of the Prevention of Corruption Act.   It is  sufficient if the accused person succeeds in  proving  a preponderance  of probability in favour of his case.  It  is not  necessary  for  the accused person to  prove  his  case beyond  a reasonable doubt or in default to incur a  verdict of guilty.  The onus of proof lying upon the accused  person is to prove his case by a preponderance of probability.   As soon  as he succeeds in doing so, the burden is  shifted  to the  prosecution which still has to discharge  its  original onus  that  never shifts i.e., that of establishing  on  the whole  case  the guilt of the accused  beyond  a  reasonable doubt.  It was observed by Viscount Sankey in Woolmington v. Director of Public Prosecutions(1) that "no matter what  the charge   or  where  the  trial,  the  principle   that   the prosecution must prove the guilt of the prisoner is part  of the common law of England and no attempt to whittle it  down can  be entertained".  This principle is a fundamental  part of the English Common Law and the same position prevails  in the  Criminal Law of India.  That does not mean that if  the statute places the burden of proof on an accused person,  he is  not required to establish his plea; but the  degree  and character of proof which the. accused is expected to furnish in  support of his plea, cannot be equated with  the  degree and  character of proof expected from the prosecution  which

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is  required to prove its case. In Rex v.  Carr-Briant(2)  a somewhat similar question arose before the English Court  of Appeal.   In that case, the appellant was charged  with  the offence  of corruptly making a gift or loan to a  person  in the  employ of the War Department as an inducement to  show, or  as a reward for showing, favour to him.  The charge  was laid  under the Prevention of Corruption Act, 1916,  and  in respect  of  such  a  charge, s.  2  of  the  Prevention  of Corruption  Act,  1916, had provided  that  a  consideration shall be deemed to be given corruptly unless the contrary is proved.   The  question which arose before the  Court.  was: what  is the accused required to prove if he wants to  claim the  benefit of the exception?  At the trial, the Judge  had directed the jury that the onus of proving his innocence lay on  the accused and that the burden of proof resting on  him to  negative  corruption  was as heavy  as  that  ordinarily resting  on the prosecution.  The Court of  Criminal  Appeal held  that  this direction did not correctly  represent  the true  position in law.  It was held by the Court  of  Appeal that where, either by statute or at Common Law, some  matter is resumed against an accused person "unless the contrary is proved,"  the  jury should be directed that  the  burden  of proof on the accused is less than that required at the hands of  the prosecution in proving the case beyond a  reasonable doubt,  and that this burden may be discharged  by  evidence satisfying the jury of the (1) [1935]A.C. 462. (2) [1943] 1 K.B. 607. 741 probability  of  that  which the accused  is  called  on  to establish.   The  ratio of this case was  referred  to  with approval  by this Court in Harbhajan Singh v. The  State  of Punjab.(1) We are accordingly of the opinion that the burden of  proof  lying  upon  the accused under  s.  4(1)  of  the Prevention  of  Corruption  Act will  be  satisfied  if  the accused  person establishes his case by a  preponderance  of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt.  In other  words,  the  onus on an accused person  may  well  be compared  to the onus on a party in civil  proceedings,  and just as in civil proceedings the court trying an issue makes its decision by adopting the test of probabilities, so  must a criminal court hold that the’ plea made by the accused  is proved  if a preponderance of probability is established  by the evidence led by him. It  is  against this background of principle  that  we  must proceed to     examine the contention of the appellant  that the charges under s.     161, Indian Penal Code and s.  5(2) read  with  s. 5(1)(d) of the Prevention of  Corruption  Act have  not  been proved against him.  It was  argued  by  Mr. Sethi  that  the circumstances found by the  High  Court  in their totality do not establish that the appellant  accepted the amount of Rs. 10,000 as illegal gratification and not as a  loan.  It was also argued -for the appellant that he  had adduced  sufficient  evidence to show that  the  amount  was really  given  to him as a loan by Ram Lal  Kapoor.   Having examined  the  findings  of both the lower  courts,  we  are satisfied that the appellant has not proved his case by  the test  of preponderance of probability and the  lower  courts rightly reached the conclusion that the amount was taken  by the  appellant not as a loan but as  illegal  gratification. It  has been found by the High Court that Ram.   Lal  Kapoor was not likely to lend a sum of Rs. 10,000 to the  appellant without  getting  a  formal document executed.   It  is  not suggested  by the appellant that he executed a hand-note  in

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favour  of Ram Lal Kapoor.  There was a suggestion  that  he granted  a receipt for Rs. 10,000 to Ram Lal Kapoor but  the High Court rejected the case of the appellant on this point. The High Court has observed that, in the first instance, the appellant  did  not  make a statement  with  regard  to  the receipt  as soon as the amount was recovered from  him.   It was only after he was taken to Marden Singh’s place that  he made a belated statement that the amount was advanced to him by  Ram Lal Kapoor as a loan and he had granted  a  receipt. Mr.  Sethi  contended that it was the duty of  the  District Magistrate ’and the Senior Superintendent of Police to  have made  a search of the whole bungalow of Ram Lal  Kapoor  for the alleged receipt and the failure of these two officers to make  the  search should be taken to prove  the  appellant’s case regarding the grant of the alleged receipt. (1)  [1965] 3 S.C.R. 235. 742 We  do not accept the submission of the learned  counsel  as correct.  The High Court has remarked that the statement  of the   appellant   was  highly  belated  and   the   District authorities  were  justified  in not  making  a  search  and ransacking  the  whole bungalow of Ram La]  Kapoor  for  the recovery  of the alleged receipt.  It was then contended  on behalf  of the appellant that no panchanama was prepared  by the  District  Magistrate or the  Senior  Superintendent  of Police  who recovered the money from the appellant.  It  was also  stated that no independent witness was summoned to  be present at the time of the search.  It was pointed out  that the District Magistrate is related to Sidh Gopal and it  was suggested  by  Mr. Sethi that the evidence of  the  District Magistrate,  of the Senior Superintendent of Police  and  of Sidh  Gopal should not have been accepted by the High  Court as  true.   But all the circumstances have been  taken  into account  by  the High Court in discussing the  testimony  of these witnesses and ordinarily it is not permissible for the appellant  to  reopen  conclusions of fact  in  this  Court, especially when both the lower Courts have agreed with those conclusions which relate to the credibility of witnesses who have  been  believed  by  the  trial  Court  which  had  the advantage of seeing them and hearing their evidence.  It was then  contended  by the appellant that the  High  Court  has taken into account the statement of Ram Lal Kapoor made in a departmental proceeding in coming to a conclusion  regarding the  guilt of the appellant.  We do not think there  is  any justification  for  this  argument.   The  High  Court   has properly  held  that the evidence of Ram  Lal  Kapoor  dated December  16,  1952-Ex.   P-11-was not  admissible  and  has excluded  it from its consideration in discussing the  guilt of  the  appellant.   It is true that  in  setting  out  the history  of  the  case the High Court has  referred  to  the statement of Ram Lal Kapoor but that does not mean that  the High Court has used the statement of Ram Lal Kapoor for  the purpose of convicting the appellant in the present case.  It was  also contended by Mr. Sethi on behalf of the  appellant that  the  statements-Exs.   P-3  an  P.4-should  have  been excluded  from consideration.  It was contended  that  these statements  were  made  by the  appellant  to  the  District Magistrate  after the recovery of the money and were bit  by the provisions of s. 162 of the Criminal Procedure Code.  On behalf   of  the  respondent  Mr.  Desai  said  that   these statements  are  admissible because they were  made  to  the District Magistrate and not to a police officer and were not during  the  course  of  investigation  because  the   First Information  Report was lodged on September 13, 1951 at 8  - 30  p.m.  long after the statements were made.   We  do  not

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consider it necessary to express any concluded opinion as to whether  Exs.  P-3 and P-4 are admissible but even  if  they are excluded from consideration there is sufficient evidence to  support the conviction of the appellant on  the  charges under  s.  161, Indian Penal Code and s. 5(2) read  with  s. 5(1)(d) of the Prevention of Corruption Act. 743 It was also submitted by Mr. Sethi that the evidence of Sidh Gopal  should not have been accepted by the High Court.   It was  pointed out that the appellant had received the  letter of District Magistrate-Ex.  P-1 on September 5, 1951 and  it was,  therefore, not likely that the appellant  should  have contacted Ram Lal Kapoor and Sidh Gopal on the 18th or  19th August, 1951.  There is, however, evidence in this case that Bhola Nath who was a Salesman of M/s Mannulal Sidh Gopal was arrested in August, 1951 on the report of the appellant  and Sidh  Gopal  apprehended that he would also come  under  the clutches  of the law and his licences may also  possibly  be cancelled.   In any event, this is a question regarding  the credibility  of  Sidh  Gopal  and it  is  not  open  to  the appellant  to contest the finding of the lower  courts  with regard to the credibility of that witness in this appeal. Lastly, Mr. Sethi submitted that the appellant was 66  years old  and  the  offence  was  committed  in  1951  and  legal proceedings  have  protracted  for  15  years.   Mr.  Sethi, therefore, prayed that the sentence imposed on the appellant may. be reduced.  We are unable to accept this argument.  We do  not  consider  that the sentence  is  excessive  in  the circumstances of the case. For the reasons already expressed, we hold that there is  no merit in this appeal which is accordingly dismissed. Appeal dismissed. 744