IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL No. 377       OF 2009 (Arising out of SLP(Crl) No.578 of 2008)

C.M. Girish Babu …Appellant  

Versus

CBI, Cochin, High Court of Kerala              …Respondent

J U D G M E N T  

B.SUDERSHAN REDDY,J.

Leave granted.

2. The  appellant  along  with  Accused  No.1  was  tried  for

offences under Section 120B  of IPC read with Section 7 and

13 (2) read with 13(1) (d)  of  Prevention  of  Corruption  Act,

1988  (hereinafter  referred  to  as  “the said Act”)  by Special

Judge (SPE/CBI)-I, Ernakulam who by his judgment dated 30th

March, 2002 convicted the appellant for the offence punishable

under Section 7 read with Section 13(1) (d) and 13(2) of the

said Act.  He was acquitted of the charge under Section 120B

of  the  IPC.   The  appellant  was  accordingly  sentenced  to

undergo rigorous imprisonment for three years and to pay a

fine of Rs.20,000. In default for payment of fine the appellant

was further ordered to undergo rigorous imprisonment for a

further period of six months for the offence punishable under

Section 13(1) read with Section 13(2) of the said Act. He was

also  sentenced  to  undergo  rigorous  imprisonment  for  two

years for the offence punishable under Section 7 of the said

Act.  The  substantive  sentences  were  directed  to  run

concurrently.  

3. The  appellant  preferred  an  appeal  to  the  Kerala  High

Court  at  Ernakulam,  which  dismissed  the  appeal  by  its

judgment dated 28th November, 2007. However, the Appellate

Court  reduced the substantive sentence to that  of  one year

only.   The High Court  acquitted the first  accused of  all  the

charges against which State preferred no appeal.  This appeal

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is brought, by special leave against the judgment of the High

Court.

4. The prosecution case is that while accused no.1 working

as  the  Inspector  of  Central  Excise,  Air  Cargo  Complex,

Trivandrum,  demanded  an  amount  of  Rs.1,500/-  as

gratification  from  one  Dayanandhan-PW10  and   Prakash

Kumar-PW2,  who  were  the  Senior  Assistant  and  Manager

respectively of M/s. Interfrieght Services Pvt. Ltd., Trivandrum

as a motive or reward for giving clearance for a wet grinder

booked by one P. S. Shine to be sent to Dubai.  

5. The appellant  was also working as Inspector  of Central

Excise, Air Cargo Complex, Trivandrum along with Accused no.

1. On 2nd October, 1999 at about 6 a.m. the appellant is stated

to  have  actually  demanded  the  amount  of  Rs.1,500/-  from

Dayanandhan-PW10 as  gratification for clearing the same wet

grinder  and  accepted  the  bribe  amount  for  himself  and  on

behalf of accused no.1 and thereby committed offences  under

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Section 7 read with Section 13(1) (d) and 13(2) of the said

Act.

6. The prosecution story as unfolded during the trial is that

the  appellant  and  Accused  no.  1  together  conspired  and

committed the act of demanding and accepting gratification.

7. In the present  case,  it  may not be really  necessary to

discuss the entire evidence available on record for the simple

reason that the High Court acquitted the Accused no. 1 of all

the charges and found no case against him.  It is the Accused

no.  1 who is  stated  to have demanded  the  gratification  for

clearing and sending wet grinder to Dubai.  The High Court as

well  as  the  trial  court  found  that  there  was  no  criminal

conspiracy  between  the  appellant  and  accused  no.  1  and

therefore acquitted both of them of the charge under Section

120B of the IPC.  

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8. The High Court upon re-appreciation of evidence came to

the conclusion that the prosecution miserably failed to prove

the charge against the appellant for the offence under Section

13 (1) (d) read with Section 13 (2) of the said Act.  In this

regard,  the  High  Court  found  that  there  is  nothing  in  the

evidence of PW-11 – Natarajan, official  witness, to arrive at

any  conclusion  of  appellant  making  any  demand  of

gratification.   PW-11   stated  that   from  the  conversation

between  the  appellant  and  PW-10,   he  could  heard  the

appellant  asking  “is  it  ready?”  and PW-10 only  nodding  his

head.  It is for that reason the High Court recorded that the

alleged  demand  by  the  appellant  on  2.10.1999  is  highly

doubtful and is not proved beyond reasonable doubt. The High

Court relied upon yet another circumstance creating a doubt as

regards the demand of any gratification by the appellant as

there is no mention of any such demand in Exhibit P-9 - post

trap  mahazar.  The  High  Court  accordingly  acquitted  the

appellant of charges under Section 13(1)(d) read with Section

13(2) of the said Act.

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9. The prosecution story mainly rested upon the evidence of

PW-10  who  is  the  central  figure  in  the  entire  story  of  the

prosecution.  He did not support the prosecution story and was

declared hostile.   It  was to him that the Accused No.1 had

allegedly  made a demand of  gratification on the morning of

1.10.99 and it was in his presence Accused No.1 repeated the

demand  when  he  went  along  with  PW-2  in  the  evening  of

1.10.99 to the Air Cargo office.  This is the version given by

PW-2.  But PW-10 does not support this story.  PW-10 in his

evidence stated that on 1.10.99 Accused No.1 in the morning

hours  suggested  certain  corrections  in  the  documents  as

regards the valuation and description of the item that was to

be sent to Dubai.  When PW-10 went back to office and told

PW-2, PW-2 said that no correction need be made.  Thereafter

both of them visited Air Cargo Complex.  It is in the evidence

of PW-10 that he alone went inside the room to meet Accused

no. 1 and told him that no corrections possibly could be  made

as  PW-2  was  not  interested  in  making  the  suggested

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corrections.   But  Accused  no.  1  insisted  for  carrying  out

corrections if  the item was to be cleared for its despatch to

Dubai. Then PW-10 requested the Accused no. 1 to meet PW-2

but Accused no. 1 retorted saying that whoever he may be, he

will not meet him.   

10. Be it  noted that  PW-2 thereafter  never  visited  Air

Cargo Complex till  he came with the trap party early in the

morning on 2.10.1999.  PW-2 in  his  evidence  stated  that  on

2.10.99 PW-10-Dayanadhan came to office at 4.30 a.m. and

informed him that he went to the Air Cargo office and found

that Accused no. 1 was not on duty and the appellant was on

duty.  According to PW-2, PW-10 informed him that on inquiry

about the cargo the appellant told him that Accused no. 1 has

already apprised him about the cargo and accordingly it would

be cleared only  if  Rs.1500/-  is  brought.   PW2 stated in  his

evidence  that  he  immediately  wrote  Exh.P2-complaint.   He

clearly  admitted  in  his  evidence  that  he  had  no  personal

knowledge  as  to  what  transpired  between  PW-10  and  the

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appellant at the Air Cargo Office.  The evidence of PW-2 about

the demand of bribe amount by the appellant is hear say and

therefore inadmissible.

11. Interestingly enough, PW-10   does not support the

story narrated by PW-2.  According to him when he went to

the  Air  Cargo  Complex  on  2nd October,  PW-2  and  another

person who came to send the wet grinder was with him and

PW-2 asked him to give Rs.1500/- to the appellant  saying that

it  was  a  loan  repayable  by  PW-2  to  Accused  no.1.   He

accordingly collected the money from PW-2 and gave it to the

appellant.  He in categorical terms accepted that the appellant

had  never  demanded  any  bribe  amount  from  him.   The

evidence  of  PW-10  also  suggests  that  PW-2  was  near  the

import Hall at a distance of about 40 metres between the Air

Maldives Godown and import Hall.   

12. An analysis of the evidence of PW-2, PW-10 and PW-

11 the official witness reveals the following:

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a) The  prosecution  miserably  failed  to  establish  the

theory  of  criminal  conspiracy  hatched  by  the  appellant

along  with  Accused  no.  1  to  demand  and  receive

gratification;  

b) The prosecution miserably failed to establish its theory

that there was a demand of  gratification by Accused

no.1 on 1.10.99;

c) There is no proof on any demand of gratification by the

appellant on 2.10.99;

d) The evidence of PW-11, the official witness, Assistant

Manager, Vigilance of FCI to the effect all that he heard

was appellant asking PW-10 “is it ready?” to which PW-

10  nodded  his  head.  This  evidence  of  the  official

witness present at the time of trap does not establish

that  there  was  any  demand  of  gratification  by  the

appellant. There is no reason to disbelieve the evidence

of PW-11;  

e) Exhibit  P-9 post trap mahazar does not record the

factum of any demand of gratification by the appellant.

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13. The  evidence  on  record  suggests  that  PW10  had

given  money  to  the  appellant  stating  that  it  was  a  loan

repayable by PW2 to accused no.1.   The appellant was lulled

into that belief based on which he received the amount from

PW-10.   

14. The  fact  remains  that  the  prosecution  established

through  evidence  of  PW-12 and  PW-13 and  Exhibit  P9-post

trap mahazar that MO IV series tainted currency notes were

recovered from the pocket of the appellant.  A question then

arises  for  consideration  is  that  whether  the recovery  of  the

tainted money itself is sufficient to convict the appellant under

Section 7 of the said Act?

15. The crucial question would be whether the appellant

had  demanded  any  amount  as   gratification  to  show  any

official favour and whether the said amount was paid by PW-10

and  received  by  the  appellant  as  consideration  for  showing

such official favour.   The only evidence available in this regard

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is  that  of  PW-10  who  did  not  support  the  case  of  the

prosecution.  The  appellant  at  the  earliest  point  of  time

explained that it was not the bribe amount received by him but

the  same  was  given  to  him  by  PW-10,  saying  that  it  was

towards repayment of  loan taken by his  Manager-PW2 from

the Accused no.1.  This is evident from the suggestion put to

PW-2 even before PW-10 was examined.  Similar suggestion

was put to the investigating officer that he had not recorded

the version given by the appellant correctly in the post trap

mahazar-Exhibit-P9 and no proper  opportunity  was given to

explain the sequence of events.  

16. In Suraj Mal Vs. State (Delhi Admn.) reported in

[(1979)  4  SCC  725], this  court  took  the  view  that  mere

recovery  of  tainted  money  divorced  from the  circumstances

under which it is paid is not sufficient to convict the accused

when the substantive evidence in the case is not reliable.  The

mere  recovery  by  itself  cannot  prove  the  charge  of  the

prosecution  against  the  accused,  in  the  absence  of  any

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evidence to prove payment of bribe or to show the accused

voluntarily accepted the money knowing it to be bribe.

17. The learned counsel for the CBI submitted that the

onus of proof was upon the appellant to explain as to how he

came  into  possession  of  the  amount  recovered  from  him

during  the  trap.   The  argument  of  the  learned  counsel  is

obviously based on Section 20 of the Prevention of Corruption

Act, 1988 which reads as under:

“20.  Presumption  where  public  servant accepts  gratification  other  than  legal remuneration.- (1) Where, in any trial of an offence  punishable  under  Section  7  of Section 11 or clause (a) or clause (b) of sub- section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to 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 section 7 or, as the case may be,  without  consideration  or  for  a consideration  which  he  knows  to  be inadequate.  

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(2)   Where  in  any  trial  of  an  offence punishable under Section 12 or under clause (b)  of  section  14,  it  is  proved  that  any gratification (other than legal remuneration) or  any  valuable  thing  has  been  given  or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification  or  that  valuable  thing,  as  the case may be, as a motive or reward such as is  mentioned  in  Section  7,  or  as  the  case may  be  without  consideration  or  for  a consideration  which  he  knows  to  be inadequate.  

(3)  Notwithstanding  anything  contained  in sub-sections (1) (2), the court  may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing  aforesaid  is,  in  its  opinion,  so  trivial that no interference of corruption may fairly be drawn.”  

18.  A  three-Judge  Bench  in  M.  Narsinga  Rao  Vs.

State  of  A.P.  (2001)  1  SCC  691 while  dealing  with  the

contention that it is not enough that some currency notes were

handed over to the public  servant to make it  acceptance of

gratification and prosecution has a further duty to prove that

what was paid amounted to gratification, observed:

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“……………………we think it  is  not necessary to deal with  the  matter  in  detail  because  in  a  recent decision rendered by us the said aspect has been dealt with  at length. (Vide Madhukar Bhaskarrao Joshi  v.  State  of  Maharashtra.)   The  following statement made by us in the said decision would be the answer to  the aforesaid  contention  raised  by the learned counsel: (SCC p.577, para 12)

The  premise  to  be  established  on  the  facts  for drawing the presumption is that there was payment or  acceptance  of  gratification.   Once  the  said premise is established the inference to be drawn is that the said gratification was accepted ‘as motive or reward’ for doing or forbearing to do any official act.   So  the  word  ‘gratification’  need  not  be stretched to mean reward because reward is  the outcome of the presumption which the court has to draw  on  the  factual  premise  that  there  was payment of gratification.  This will again be fortified by  looking  at  the  collocation  of  two  expressions adjacent  to  each  other  like  ‘gratification  or  any valuable thing’.  If acceptance of any valuable thing can  help  to  draw  the  presumption  that  it  was accepted  as  motive  or  reward  for  doing  or forbearing  to  do  an  official  act,  the  word ‘gratification’  must  be  treated  in  the  context  to mean  any  payment  for  giving  satisfaction  to  the public servant who received it.”

19. It is well settled that the presumption to be drawn

under  Section  20  is  not  an  inviolable  one.   The  accused

charged  with  the  offence  could  rebut  it  either  through  the

cross-examination  of  the  witnesses  cited  against  him  or  by

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adducing reliable evidence.  If the accused fails to disprove the

presumption the same would stick and then it can be held by

the Court  that the prosecution  has proved that  the accused

received the amount towards gratification.

20. It  is  equally  well  settled  that  the burden  of  proof

placed  upon  the  accused  person  against  whom  the

presumption is made under Section 20 of the Act is not akin to

that of  burden placed on the prosecution to prove the case

beyond a reasonable doubt.  “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 of proof his case

beyond  a  reasonable  doubt.   That  is,  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 Section 4 under

the Prevention of Corruption Act.  It is sufficient if the accused

person succeeds in proving a preponderance of probability in

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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 verdict of guilt.  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  shifts  to

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.”  (See

Jhangan Vs. State 1966 (3) SCR 736). (Emphasis supplied)

21. It is against this background of principles we have

examined  the  contention  of  the  appellant  that  the  charges

under Section 7 of the Act have not been proved against him.

It  was  argued  by Shri  U.  U.  Lalit,  Senior  counsel,  that  the

circumstances found by the High Court in their totality do not

establish that the appellant accepted the amount of Rs.1500/-

as  gratification.   Having  examined  the  findings  of  both  the

Courts, we are satisfied that the appellant has proved his case

by the test of preponderance of probability and we accordingly

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reach the conclusion that the amount was not taken by the

appellant  as  gratification.   He  was  made  to  believe  that

amount paid to him was towards the repayment of loan taken

by PW2 from Accused no. 1.    

22. The prosecution failed in establishing the guilt of the

accused beyond reasonable doubt that the appellant received

any gratification.  

23. For  the  aforesaid  reasons,  we  find  it  difficult  to

sustain the conviction of the appellant under Section 7 of the

said Act. Accordingly, the conviction of the appellant and the

sentence imposed upon him is set aside.  

24. The appeal is allowed.  

25. The bail bonds executed by the appellant for release on

bail  pursuant  to  the  order  dated  04.02.2008  shall  stand

discharged.  

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……………………………………J.         (Lokeshwar Singh Panta)

……………………………………J.      (B. Sudershan Reddy)

New Delhi;  

February 24, 2009

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