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PETITIONER: MAHESH PRASAD GUPTA

       Vs.

RESPONDENT: STATE OF RAJASTHAN

DATE OF JUDGMENT03/12/1973

BENCH: ALAGIRISWAMI, A. BENCH: ALAGIRISWAMI, A. CHANDRACHUD, Y.V. BEG, M. HAMEEDULLAH BHAGWATI, P.N.

CITATION:  1974 AIR  773            1974 SCR  (2) 579  1974 SCC  (3) 591  CITATOR INFO :  R          1977 SC 666  (8)

ACT: Prevention of Corruption Act, 1947-S.5(1)(d)and s.5(2)  read with s. 161 I.P.C. Appellant had accepted Rs. 15/- which was no  part of his legal remuneration--The presumption is  that the  appellant accepted the amount as a reward for doing  an official act The burden of proving the contrary rests on the appellant.

HEADNOTE: The appellant had been convicted under S. 5(1) (d) read with s.  5(2) of the Prevention of Corruption Act, 1947, as  also under s. 161 of the Penal Code and was sentenced to one year R.I. and a fine. The question for consideration in this case was whether  the concurrent finding of guilt recorded by the trial court  and the  High Court was in accordance with law and the  evidence in the case. The appellant was a clerk in the office of the Loco-Foreman, Western  Railways Kotah, and he had to process  applications for advances from the Provident Fund Account.  It is alleged that  the appellant while processing the  complainant’s  ap- plication, accepted a bribe of Rs. 15/- from the complainant in  a  hotel.   The appellant admitted the  receipt  of  the amount, but contended that the amount was paid to him by the complainant  in part payment of a loan of Rs. 30/ which  had been  advanced  by him to the complainant earlier  Both  the trial Court and the High Court held the accused guilty. Dismissing the appeal, HELD  :(1)  Section  4(1) of the  Prevention  of  Corruption Act,1947 provides to the extent material, that where in  any trial  of  an offence punishable under Section  161  of  the Penal  Code, or under s. 5(2) of the Act, it is proved  that an  accused  person has accepted "any  gratification  (other than legal remuneration)", it shall be presumed, unless  the contrary is proved, that he accepted that gratification as a motive  or  reward such as is mentioned  in  Section  (161), Penal  Code.  The motive or reward mentioned in Section  161 is, inter alia, for doing or for-bearing to do ally official

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act. [581 C] in  the  present case, the prosecution had proved  that  the appellant had accepted Rs. 151- which clearly was no part of his legal remuneration.  The presumption, therefore,was that the appellant accepted the amount as a motive or reward  for doing an official act. (ii) Under  s.  4(1) of the Act, the burden of  proving  the contrary  must  rest on the appellant.   But  the  appellant urged that the presumption under s. 4(1) can be raised  only if  the prosecution establishes in the first  instance  that the  amount was paid otherwise than as  legal  remuneration. This contention is contrary to the clear terms of  s.4(1)and would  render  illusory, the presumption arising  under  the Section.   To cast on the prosecution the burden of  proving that  the amount was accepted by the accused otherwise  than by  way of legal remuneration is to ask the  prosecution  to prove that the amount was paid and accepted by way of bribe. If  this  be the true nature of the burden  resting  on  the prosecution,  no presumption at all need be raised,  because apart  from  the presumption the prosecution would  have  to prove that the money was accepted by the accused and that it was  accepted  as  a  bribe.   It  is  plain  that  if   the prosecution  proves  the  acceptance of the  amount  by  the accused and the amount does not represent legal remuneration in any form or any kind, the accused must establish that the amount  was not accepted by him as motive or reward such  as is mentioned in s. 161 I.P.C. The accused can establish  his case by preponderance of probabilities, that is to say, that be  need not prove his case beyond a reasonable doubt.  [581 E] V. D. Jhingan v. The State of Uttar Pradesh A.I.R. 1966 S.C. 1762, referred to. in  the  present case, both the courts have  held  that  the defence of the appellant was false and the preponderance  of probabilities was in favour of the view that the amount 580 was  accepted  by the appellant by way of  bribe.   Further, there  was no particular intimacy between the appellant  and the  complainant  and it was not likely that  the  appellant would  give  a  loan to complainant without  a  receipt  and without  interest.  Further, the complainant bore no  enmity with the appellant and there is no evidence to hold that the complainant  was influenced by anybody into lodging a  false case against the appellant.  As the appellant had failed  to discharge  his burden,the order of conviction  and  sentence must be confirmed.

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 130 of 1970. Appeal  by Special leave from the Judgment and  Order  dated the 6th July, 1970 of the Rajasthan High Court at Jodhpur in S. B. Criminal Appeal No. 342 of 1967. Nuruddin  Ahmad and Sobhagmal Jain, for the  appellant  Maya Rao, for the respondent. The Judgment of the Court was delivered by CHANDRACHUD, J. In this appeal by special leave the question for consideration is whether the concurrent finding of guilt recorded  by the learned Special Judge, Jaipur and the  High Court  of  Rajasthan  is  in accordance  with  law  and  the evidence  in  the case.  The appellant  has  been  convicted under  section  5(1)  (d) read with section  s  (2)  of  the Prevention of Corruption Act, 1947 as also under section 161

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of  the  Penal  Code.  He has  been  sentenced  the  undergo rigorous imprisonment for one year and to pay a fine of  Rs. 100/- on each count. The  complainant Umashanker is a cleaner in the  Loco  Shed, Kotah.  The appellant was working at the material time, as a clerk  in the office of the Loco Foreman,  Western  Railway, Kotah, one of his duties being to process applications  made by  a  certain  class of employees  for  advances  from  the Provident  Fund Account.  On April 8, 1966, the  complainant presented  an  application to the appellant  asking  for  an advance of Rs. 1501- from his Provident Fund Account.  It is alleged that the appellant refused to accept the application unless the complainant agreed to pay to him a  gratification of  Rs.  151-.  On April 10, the  complainant  approached  a Vigilance  Officer Srinath Sharan Srivastava, and  lodged  a complaint  before  him that the appellant  was  demanding  a bribe.    On  the  12th  the  Vigilance  Officer  took   the complainant   to   the   office  of   the   Special   Police Establishment,  Jaipur  where  Inspector  Ajmera  asked  the complainant  to  make  one  more  attempt  to  present   the application to the appellant.  Accordingly, the  complainant resubmitted  his application on the 13th when the  appellant is  alleged to have renewed his demand for a bribe.  A  trap was  thereafter  laid and it is alleged that  the  appellant accepted  from  the  complainant a sum of Rs.  151-  on  the evening  of the 13th at ’Meghraj Hotel’.  The  two  currency notes of Rs. 10/- and 51- were treated with sodium carbonate powder and the payment is alleged to have been witnessed  by the motbirs Jagdish Prasad Tiwari and Bhagwandas Makhija. The  appellant  admitted  the  receipt  of  the  amount  but contended that the amount was paid to him by the complainant in  part  payment  of  a loan of Rs.  30/-  which  had  been advanced by him to the complainant on November 1, 1965.   He stated  that  the complainant had not presented to  him  any application  at  all on April 8 and on the 13th  the  appli- cation  was  presented  not to him but  to  the  Head-clerk. According to 581 him the application of the 13th was processed by him in  the ordinary  course  and on the loan being recommended  by  the Loco  Forman.  the  application was duly  forwarded  to  the dispatch clerk for obtaining the sanction of the  Divisional Superintendent’s Office. On the central issue whether the sum of Rs. 15/- had  passed hands  from  the complainant to the appellant, we  have  the admission of the appellant himself but quite apart from that admission,  there is clear and convincing evidence  to  show that   the  appellant  had  accepted  the  money  from   the complainant.  The evidence of the complainant Umashanker (P. W.  4),  Jagdish Prasad (P.  W. 5)  and  Bhagwandas  Makhija (P.W. 6) leaves no doubt on this point. Section  4(1)  of the Prevention of  Corruption  Act,  1947, provides to the extent material, that where in any trial  of an offence punishable under section 161 of the Penal Code or under section 5(2) of the Act, it is proved that an  accused person  has  accepted "any gratification (other  than  legal remuneration)", it shall be presumed unless the contrary  is proved  that  he accepted that ratification as a  motive  or reward such as is mentioned in section 161, Penal Code.  The motive or reward mentioned in section 161 is inter alia, for doing or forbearing to do any official act. The  prosecution  having  proved  that  the  appellant   had accepted  the sum of Rs. 15/-, which clearly is no  part  of his legal remuneration, the presumption must be raised under section  4(1)  of the Act that the  appellant  accepted  the

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amount as a motive or reward for doing an official act.  The official  act in the instant case was the processing of  the appellant’s  application for a loan from his Provident  Fund Account. Under  section  4(1) of the Act, the burden of  proving  the contrary  must rest on the appellant.  But  learned  counsel appearing  on  his behalf urges that the  presumption  under section   4(1)  can  be  raised  only  if  the   prosecution establishes  in the first instance that the amount was  paid otherwise  than as legal remuneration.  This  contention  is contrary to the clear terms of section 4(1) and would render illusory the presumption arising under the section, To  cast on the prosecution the burden of proving that the amount was accepted  by  the  accused otherwise than by  way  of  legal remuneration  is  to ask the prosecution to prove  that  the amount  was paid and accepted by way of bribe.  If  this  be the true nature of the burden resting on the prosecution, no presumption  at  all need be raised because apart  from  the presumption  the  prosecution would have to prove  that  the money  was accepted by the accused and that it was  accepted as a bribe.  It is plain that if the prosecution proves  the acceptance of the amount by the accused and the amount  does not represent legal remuneration in any form or of any kind, the accused must establish that the amount was not  accepted by him as a motive or reward such as is mentioned in section 161, Penal Code.  As held in V. D. Jhingan vs.  The State of Uttar  Pradesh(1),  the accused can establish  his  case  by preponderance of probabilities, that is to say, he need  not prove his case beyond a reasonable doubt. (1)  A.I.R. 1966 S.C. 1762. 582 Both the courts have held that the defence of the  appellant is false and the preponderance of probabilities is in favour of the view that the amount was accepted by the appellant by way of bribe.  The learned Special Judge described the  loan theory propounded by the appellant as false, while the  High Court observed that the conclusion is irresistible that  the theory  is an after-thought.  We are in agreement with  this finding. There  was no particular intimacy between the appellant  and the  complainant  and it is not likely  that  the  appellant would give a loan to the complainant, without a receipt  and without  interest.  A copy of his monthly account  (Ex.   D- 11)  produced  by the appellant shows that  on  November  1, 1965,  when  the  loan is alleged to have  been  given,  the appellant   was  himself  in  indigent  circumstances.    In September, 1965, his expenses exceeded his income for  which he had to sell some silver lying in the house ; in  October, he overstepped his income by more than Rs. 100/- and in  the crucial month of November he had to take a loan of Rs.  80/- from  the Railway Fund and to sell some wheat lying  in  the house in order to meet his expenses.  The debit entry of Rs. 30/- in the name of the complainant was, as held by the High Court,  evidently  inserted  after  scoring  off  a  writing against a sum of Rs. 30/-. When   Inspector  Ajmera  disclosed  his  identity  to   the appellant  and  asked him to produce the  money,  he  became nervous  and begged for mercy.  He could not have  forgotten that he was a creditor of the complainant in the sum of  Rs. 30/- and that the amount was received by him in part payment of that loan. The  complainant  bore  no enmity  with  the  appellant  and assuming,  as  contended on behalf of  the  appellant,  that there was some hostility between the appellant and the Head- clerk, Chandra Prakash Saxena, we see no foundation for  the

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argument that Saxena influenced the complainant into lodging a false case against the appellant. As  the  appellant has failed to discharge his  burden,  the order   of  conviction  and  sentence  must  be   confirmed. Appellant will surrender to his bail forthwith. S. C.                         Appeal dismissed. 583