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CASE NO.: Appeal (crl.)  909 of 1997

PETITIONER: T. Shankar Prasad                                                

RESPONDENT: State of Andhra Pradesh                                  

DATE OF JUDGMENT: 12/01/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT

JUDGMENT: J U D G M E N T With Crl. A. No. 910/1997

ARIJIT PASAYAT, J.

       These two appeals are directed against the common  judgment of the Andhra Pradesh High Court which upheld the  conviction of the appellants under Sections 7, 11, and  13(1)(d) read with Section 13(2) of the Prevention of  Corruption Act, 1988 (in short the ’Act’) and Section 120B  of the Indian Penal Code, 1860 (for short the ’IPC’).

       Appellants T. Shankar Prasad (in Crl. A. No.909/1997)  and Ghaiz Basha (in Crl. A.No.910/97)(also described as A1  and A2) were working as Assistant Commercial Tax Officer and  Junior Assistant respectively in the office of the  Commercial Tax Department of Kanigiri, Prakasam District.  Way bills were issued to the traders by the department for  their day to day transactions and taxable goods to be  transported were required to be covered by the way bills  issued by the department. Complainant (PW-1) was a dealer in  grocery articles and under the relevant sales tax statutes,  a registered dealer. He applied for way bills. On 25.4.1992  he requested the accused T. Shankar Prasad  to get the way  bills duly stamped  and signed by him. The officer demanded  Rs.400/- as bribe in the presence of other accused. When the  complainant expressed his inability to pay the amount, the  demand of the bribe was reduced to Rs.300/-. Complainant  agreed to pay the amount within two to three days. Since he  was not interested to pay the bribe, he reported the matter  to the Anti Corruption  Bureau officials on 28.4.1992. The  case was registered by the officials on the said date and  mediators were secured and trap was arranged.  Since on that  day accused T. Shankar Prasad was not available in the  office, the trap could not be laid. On the next date again  the mediators and the members of the trap party arranged the  trap and accordingly the complainant approached the accused  T. Shankar Prasad who directed him to pay the amount to  other accused Ghaiz Basha.  When the latter received the  bribe amount from the complainant the trap party caught hold  of both the officers and the amount was recovered from the  possession of second accused and the sodium carbonate  solution test conducted proved positive. After furnishing  documents to the accused persons and hearing on the question  of framing charges, charges were framed. The accused persons  pleaded innocence and claimed to be tried. Eight witnesses  were examined and several documents were marked. The

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complainant was examined as PW-1. PW-2 was the Assistant  Audit Officer who deposed about the whole scenario before  the search was conducted. The significance of the test by  the chemicals and their reactions was explained to him.  Currency notes were applied with phenolphthalein powder. The  powder was not visible on the currency notes. The DSP who  was monitoring the trap instructed PW-1 not to touch the  cash and only pay to the accused on demand. He was asked to  give signal after bribe amount was accepted, by waving a    handkerchief. PW-4 was an Assistant Director of Veterinary  Hospital who acted as a mediator. He also described in  detail about the trap operations. PW-5 was a Senior  Assistant in the Commercial Tax office who deposed about  part of the transaction relating to issuance of way bills  forms with reference to the official records. PW-7 was DSP  who monitored the operations. PW-8 was the Inspector who had  received the complaint from PW-1. The accused persons were  examined under Section 313 of the Code of Criminal  Procedure, 1973 (in short the ’Code’). They denied about the  demand and acceptance of bribe, and took the stand that  false case had been foisted due to enmity. One witness was  examined on behalf of the accused T. Shankar Prasad. Said  witness deposed about the registration of a relative of the  complainant and his business activities.  

       Stand of the accused T. Shankar Prasad was that no  money was recovered from his possession. The other accused  Ghaiz Basha took the plea that there was no material to show  that he had demanded any bribe. He further stated that he  had accepted the amount to be deposited as advance tax and  when he was about to write the challan, the Anti Corruption  Bureau officials caught hold of him and implicated him  falsely.  

The trial Court noticed that PW-1 had partially resiled  from the statement made by him during investigation.  He  made half-hearted attempt to support the accused Ghaiz  Basha. The trial Court found them guilty under Sections 7  and 13(1)(d) read with Section 13(2) of the Act. It  sentenced each of the accused to undergo rigorous  imprisonment for two years for the offence relatable to  Section 7 and imposed similar sentence for the other offence  i.e. under Section 13(1)(d) read with Section 13(2) of the  Act. Fine of Rs.1,000/- each was also imposed with default  stipulation. Appeals filed by the accused persons before the  Andhra Pradesh High Court were dismissed by the impugned  judgment except modification of sentence.  The sentence was  reduced to 6 months for the offence relatable to Section 7,  and one year for the offence relatable to Section 13(1)(d)  read with Section 13(2) of the Act. It did not find any  substance in the plea that the evidence of PW-1 did not  implicate the accused persons and since no money was  recovered from the accused T. Shankar Prasad he was not  guilty, and that there was no material about demand of bribe  by the other accused. The pleas were re-iterated in the  appeals before us.

       It was submitted that since the complainant himself did  not support the prosecution version fully, it was  impermissible to convict the accused persons. The statutory  presumption available under Section 7 read with Section 20  of the Act was not to be utilized against the accused  person. The effect of an affidavit by the complainant was  lost sight of. He did not implicate the accused persons  directly. Since there was no recovery from A-1, there was no

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material to connect him with the tainted money and he should  not have been held guilty. As A-2 was not in the same room  where A-1 was sitting, it has not been established as to  what was his role. There was no conspiracy. A-2 did not know  that the amount that was offered was bribe. Great stress has  been laid by the learned counsel for the appellants on the  evidence of PW-1 to show that he has not categorically  implicated the accused persons. Since the accused persons   were acquitted of the charge under Section 120B IPC, they  are entitled to acquittal for the  offence relatable to the  Act. Such a plea was specifically rejected by this Court in  Madan Lal v. The State of Punjab (AIR 1967 SC 1590). It was  held that if the charge of conspiracy to commit criminal  breach of trust is followed by a substantive charge of  criminal breach of trust in pursuance of such conspiracy,  the Court can convict the accused under the second charge  even if conspiracy was not established. In any event, no  prejudice is caused to the accused persons where there was a  substantive charge of criminal breach of trust.

       Reliance was placed on V.K. Sharma v. State (Delhi  Admn. (1975 (1) SCC 784), Sita Ram v. The State of Rajasthan  (1975 (2) SCC 227) and Suraj Mal v. State (Delhi Admn.)  (1979(4) SCC 725) to contend that mere recovery in the  absence of any evidence to show payment of money was not  sufficient. Mere recovery without proof of its payment by or  on behalf of the complainant would not bring in application  of Section 4 of the Act.  

Learned counsel for the State on the other hand  supported the conviction as done by the trial Court. With  reference to the evidence of official witnesses and the  documents brought on record it was submitted that they have  no axe to grind with the accused, are independent witnesses  and the Courts below have rightly relied on the evidence.  

       For appreciating rival stands it would be proper to  quote Section 4(1) of the Act, which reads as follows:

       "4.(1) Presumption where public  servant accepts gratification other than  legal remuneration.-(1) Where in any trial  or an offence punishable under Section 161  or Section 165 of the IPC or of an offence  referred to in clause (a) or clause (b) of  sub-section (1) of Section 5 of this Act   punishable under sub-section (2) thereof, 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 the said Section 161, or, as the case may  be, without consideration or for a  consideration which he knows to be  inadequate."          Before proceeding further, we may point out that the  expressions "may presume" and "shall presume" are defined

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in Section 4 of the Indian Evidence Act, 1872 (in short the  ’Evidence Act’). The presumptions falling under the former  category are compendiously known as "factual presumptions"  or "discretionary presumptions" and those falling under  the latter as "legal presumptions" or "compulsory  presumptions". When the expression "shall be presumed" is  employed in Section 4(1) of the Act, it must have the same  import of compulsion.   

When the sub-section deals with legal presumption, it  is to be understood as in terrorem i.e. in tone of a command  that it has to be presumed that the accused accepted the  gratification as a motive or reward for doing or forbearing  to do any official act etc., if the condition envisaged in  the former part of the section is satisfied. The only  condition for drawing such a legal presumption under Section  4 is that during trial it should be proved that the accused  has accepted or agreed to accept any gratification. The  Section does not say that the said condition should be  satisfied through direct evidence. Its only requirement is  that it must be proved that the accused has accepted or  agreed to accept gratification. Direct evidence is one of  the modes through which a fact can be proved. But that is  not the only mode envisaged in the Evidence Act. (See M.  Narsinga Rao v. State of A.P. (2001 (1) SCC 691).  

Proof of the fact depends upon the degree of  probability of its having existed. The standard required for  reaching the supposition is that of a prudent man acting in  any important matter concerning him. Fletcher Moulton L.J.  in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911 (1)  KB 988) observed as follows:

       "Proof does not mean proof to rigid  mathematical demonstration, because that is  impossible; it must mean such evidence as  would induce a reasonable man to come to a  particular conclusion".  

The said observation has stood the test of time and can  now be followed as the standard of proof. In reaching the  conclusion the Court can use the process of inferences to be  drawn from facts produced or proved. Such inferences are  akin to presumptions in law. Law gives absolute discretion  to the Court to presume the existence of any fact which it  thinks likely to have happened. In that process the Court  may have regard to common course of natural events, human  conduct, public or private business vis-‘-vis the facts of  the particular case. The discretion is clearly envisaged in  Section 114 of the Evidence Act.  

Presumption is an inference of a certain fact drawn  from other proved facts. While inferring the existence of a  fact from another, the Court is only applying a process of  intelligent reasoning which the mind of a prudent man would  do under similar circumstances. Presumption is not the final  conclusion to be drawn from other facts. But it could as  well be final if it remains undisturbed later. Presumption  in law of evidence is a rule indicating the stage of  shifting the burden of proof. From a certain fact or facts  the Court can draw an inference and that would remain until  such inference is either disproved or dispelled.  

For the purpose of reaching one conclusion the Court  can rely on a factual presumption. Unless the presumption is

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disproved or dispelled or rebutted the Court can treat the  presumption as tantamounting to proof. However, as a caution  of prudence we have to observe that it may be unsafe to use  that presumption to draw yet another discretionary  presumption unless there is a statutory compulsion. This  Court has indicated so in Suresh Budharmal Kalani v. State  of Maharashtra (1998 (7) SCC 337) "A presumption can be  drawn only from facts \026 and not from other presumptions \026 by  a process of probable and logical reasoning".  

Illustration (a) to Section 114 of the Evidence Act  says that the Court may presume that "a man who is in the  possession of stolen goods soon after the theft is either  the thief or has received the goods knowing them to be  stolen, unless he can account for his possession". That  illustration can profitably be used in the present context  as well when prosecution brought reliable materials that  there was recovery of money from the accused. In fact the  receipt and recovery is accepted. The other factor is the  acceptability of the plea of loan, which the High Court  itself has not held cogent or credible.                   We may note that a three-Judge Bench in Raghubir Singh  v. State of Punjab (1974 (4) SCC 560) held that the very  fact that the accused was in possession of the marked  currency notes against an allegation that he demanded and  received the amount is "res ipsa loquitur".  

       In Hazari Lal v. State (Delhi Admn.) (1980 (2) SCC 390)  it was observed that there is no requirement to prove  passing of money by direct evidence. It may also be proved  by circumstantial evidence. In Madhukar Bhaskarrao Joshi v.  State of Maharashtra (2000 (8) SCC 571) it was observed  thus:

       "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".    

It is to be noted that decisions relied upon by the learned  counsel for the accused were considered in Narsinga Rao’s  case (supra) and it was held that the principles had no  application as the findings recorded depend upon the  veracity of the testimony of the witnesses, so far as Suraj

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Mal’s case (supra) is concerned, and the observations in  Sita Ram’s case (supra), were to be confined to the facts of  that case and no legal principle for future application  could be discerned therefrom.  

       In Black’s Law Dictionary, "gratification" is defined  as "a recompense or reward for services or benefits, given  voluntarily, without solicitation or promise". But in  Oxford Advance Learner’s Dictionary of Current English the  said word is given the meaning "to give pleasure or  satisfaction to". Among the above two descriptions for the  word "gratification" with slightly differing nuances as  between the two, what is more appropriate for the context  has to be found out. The context in which the word is used  in Section 4(1) of the Act is, hence, important.  

       In Mohmoodkhan Mahboobkhan Pathan v. State of  Maharashtra (1997 (10) SCC 600) this Court has taken the  same meaning for the word "gratification" appearing in  Section 4(1) of the Act. We quote the following  observations:

       "7. The primary condition for acting  on the legal presumption under Section 4(1)  of the Act is that the prosecution should  have proved that what the accused received  was gratification. The word ’gratification’  is not defined in the Act. Hence, it must be  understood in its literal meaning. In the  Oxford Advanced Learner’s Dictionary of  Current English, the word ’gratification’ is  shown to have the meaning ’to give pleasure  or satisfaction to’. The word  ’gratification’ is used in Section 4(1) to  denote acceptance of something to the  pleasure or satisfaction of the recipient."                    What is the concept of gratification has been  succinctly stated by this Court in The State of Assam v.  Krishna Rao (1973 (3) SCC 227), in following illuminating  words:  

"21.-In our opinion, there is merit in the  appellant’s contention that the High Court  has taken an erroneous view of Section 4 of  the Prevention of Corruption Act. That  section reads:

"4. Presumption where public  servant accepts gratification other  than legal remuneration.-(1) Where  in any trial or an offence  punishable under Section 161 or  Section 165 of the IPC or of an  offence referred to in clause (a)  or clause (b) of sub-section (1) of  Section 5 of this Act  punishable  under sub-section (2) thereof, 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

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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 Section 161,  or, as the case may be, without  consideration or for a  consideration which he knows to be  inadequate.                     (2)    Where in any trial of an  offence punishable under Section  165-A of the Indian Penal Code or  under clause (ii) of sub-section  (3) of Section 5 of this Act, 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 161 IPC 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) and  (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 inference of  corruption may fairly be drawn."

22.-In State of Madras v. A. Vaidiaratha  Iyer (1958 SCR 580) after reproducing the  relevant provisions of Section 4 of the Act  this Court observed that where it is proved  that a gratification has been accepted the  presumption under Section 4 of the Act shall  at once arise. It is a presumption of law  and it is obligatory on the Court to raise  it in every case brought under Section 4. In  the reported case this Court allowed the  appeal of the State of Madras and setting  aside the impugned order of acquittal passed  by the High Court restored that of the  Special Judge convicting the respondent  there. In C.I. Emden v. The State of U.P.  (AIR 1960 SC 548) the appellant who was  working as a local foreman, was found to  have accepted a sum of Rs.375 from a railway  contractor. The appellant’s explanation was

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that he had borrowed the amount as he was in  need of money for meeting the expenses of  the clothing of his children who were  studying in school. The Special Judge  accepted the evidence of the contractor and  held that the money had been taken as a  bribe, that the defence story was improbable  and untrue, that the presumption under  Section 4 of the Act had to be raised and  that the presumption had not been rebutted  by the appellant and accordingly convicted  him under Section 161 IPC and Section 5 of  the Act. On appeal the High Court held that  on the facts of that case the statutory  presumption under Section 4 had to be  raised, that the explanation offered by the  appellant was improbable and palpably  unreasonable and that the presumption had  not been rebutted, and upheld the  conviction. The appellant contended, on  appeal in this Court, inter alia: (i) that  the presumption under Section 4 could not be  raised merely on proof of acceptance of  money but it had further to be proved that  the money was accepted as a bribe, (ii) that  even if the presumption arose it was  rebutted when the appellant offered a  reasonably probable explanation. This Court,  dealing with the presumption under Section  4, observed that such presumption arose when  it was shown that the accused had received  the stated amount and that the said amount  was not legal remuneration. The word  ’gratification in Section 4(1) was to be  given its literal dictionary meaning of  satisfaction or appetite or desire; it could  not be construed to mean money paid by way  of a bribe. The High Court was justified in  raising the presumption against the  appellant as it was admitted that he had  received the money from the contractor and  the amount received was other than legal  remuneration. On the facts the explanation  given by the accused, in agreement with the  opinion of the High Court was held to be  wholly unsatisfactory and unreasonable. In  Dhanvantrai v. State of Maharashtra (AIR  1964 SC 575) it was observed that in order  to raise the presumption under Section 4(1)  of the Act 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. In Jhangan v. State of U.P.  (1968 (3) SCR 766) the above decisions were  approved and it is observed that mere  receipt of money is sufficient to raise the  presumption under Section 4(1) of the Act."   

       In C.I. Emden v. State of Uttar Pradesh (AIR 1960 SC

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548) and V.D. Jhangan v. State of Uttar Pradesh (1966 (3)  SCR 736) it was observed that if any money is received and  no convincing, credible and acceptable explanation is  offered by the accused as to how it came to be received by  him, the presumption under Section 4 of the Act is  available. When the receipt is admitted it is for the  accused to prove as to how the presumption is not available  as perforce the presumption arises and becomes operative.  

       These aspects were highlighted recently in State of  Andhra Pradesh v. V. Vasudev Rao (JT 2003 (9) SC 119).

On a close reading of PW 1’s evidence it appears that  he has not really given a clean chit to the accused persons.  Though a feeble attempt was made to show that he has not  implicated A-2, in fact that is really not of significance  when his evidence is read along with the evidence of other  witnesses.  The evidence clearly shows that A-1 directed the  money to be paid to A-2. The stand of accused about nature  of receipt of the money is also not consistent. The stand  was taken as if the money was received by A-2 for the  payment of the advance tax. The documents brought on record  go to show that there was no necessity for paying any  advance tax. In fact the official records indicate that the  tax due was fully paid. Therefore, the plea that the amount  was paid as advance tax is clearly without substance.  

The fact that PW-1 did not stick to his statement made  during investigation does not totally obliterate his  evidence. Even in criminal prosecution when a witness is  cross-examined and contradicted with the leave of Court by  the party calling him, his evidence cannot as a matter of  law be treated as washed off record altogether. It is for  the Judge of fact to consider in each case whether as a  result of such cross examination and contradiction, the  witness stands thoroughly discredited or can still be  believed in regard to a part of his testimony. If the Judge  finds that in the process the credit of the witness has not  been completely shaken he may after reading and considering  the evidence of the said witness, accept in the light of  other evidence on record that part of his testimony which he  found to be creditworthy and act upon it. As noted above,  PW-1 did not totally resile from his earlier statement.  There was only a half-hearted attempt to partially shield A- 2. PW-1 has categorically stated that he had paid the money  to A-2 as directed by A-1. As noted above, the plea of A-2  that he had accepted the money as advance tax has been  rightly discarded being contrary to official records.  Evidence of PW-2 with regard to proceedings on 28.4.1992 has  been clearly established. Evidence of PW-4 the mediator is  corroborated by the evidence of PWs 1, 3, 7 and 8. His  report was marked as Ext P.13. The same along with the other  evidence clearly establish the accusations against both the  accused. When money was recovered from the pocket of one of  the accused persons a presumption under Section 7 of the Act  is obligatory. It is a presumption of law and cast an  obligation on Court to operate it in every case brought in  Section 7. The presumption is a rebuttable presumption and  it is by proof and not by explanation which may seem to be  plausible. The evidence of PWs 4, 5, 7 and 8 read with the  evidence of PW-1 established recovery of money from A-2. A  belated and stale explanation was offered by A-2 that the  money was paid towards tax. This plea was rightly discarded  as there was no tax due and on the contrary the complainant  was entitled to some refund. An overall consideration of the

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materials sufficiently substantiate, in the case on hand the  prevalence of a system and methodology cleverly adopted by  the accused that the demand will be specified when both the  accused were present and thereafter as and when the A-1 puts  his signature the party has to meet A-2, at his seat for  fixing the seal and making entry in the Register to make the  process complete only after collecting the amount already  specified by A-1 in A-2’s presence.  The involvement of both  of them in a well planned and cleverly managed device to  systematically collect money stood sufficiently established  on the evidence let in by prosecution. Further A-2 did not  offer his explanation immediately after the recovery of  money. A similar plea of receiving money as advance tax was  rejected and affirmed by this Court in A. Abdul Kaffar v.  State of Kerala (2003 (8) Supreme 804).  It was noted that  such a stand was not taken at the first available  opportunity, and the defence was not genuine. In State of  U.P. v. Dr. G.K.Ghosh (AIR 1984 SC 1453) it was observed  that in case of an offence of demanding and accepting  illegal gratification, depending on the circumstances of the  case, the Court may feel safe in accepting the prosecution  version on the basis of the oral evidence of the complainant  and the official witnesses even if the trap witnesses turn  hostile or are found not to be independent. When besides  such evidence, there is circumstantial evidence which is  consistent with the guilt of the accused and not consistent  with his innocence, there should be no difficulty in  upholding the conviction.      When the factual position is examined in the background  of legal principles culled out from various decisions of  this Court, the inevitable conclusion is that the High  Court’s judgment is irreversible.   

       Above being the position, the appeals being without  merit are dismissed.