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PETITIONER: TRILOK CHAND JAIN

       Vs.

RESPONDENT: STATE OF DELHI

DATE OF JUDGMENT19/08/1975

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH CHANDRACHUD, Y.V. BHAGWATI, P.N.

CITATION:  1977 AIR  666            1976 SCR  (1) 348  1975 SCC  (4) 761

ACT:      Prevention of  Corruption Act  (2 of 1947) ss. 4(1) and 5(1) (2) and Indian Penal Code (Act 45 of 1860) s. 161-Scope of presumption under s.4(1)

HEADNOTE:      An inspector  of the  Delhi Electric Supply Undertaking demanded  a   bribe  for  giving  the  complainant  a  power connection for his factory. Information having been given to the anti-corruption police a trap was set. The inspector did not turn  up at the appointed time to receive the money, but the appellant,  a permanent labourer working under him, came to the complainant’s factory, told him that he had been sent by the Inspector, and that the money should be given to him. ’The complainant,  at first,  insisted  that  the  inspector himself should  come but later gave him the money. The money was recovered  from the  appellant and the inspector and the appellant were charged with offences under the Prevention of Corruption Act.  The trial court acquitted the inspector but convicted the  appellant under  s. S(2) read with s. 5(1)(d) of the  Act, and  under s.  161 I.P.C.,  with the aid of the presumption under  s. 4(1)  of the  Act. The  conviction was confirmed by the High Court.      Allowing the appeal to this Court, ^      HELD :  ( I ) The question whether a government servant receiving money  had the  requisite incriminatory  motive is one of fact. [353H, 354A]      (2) one  of the  essential ingredients  of the  offence under s.  161, I.P.C.,  is that  the gratification must have been received  by the  accused as  a motive  or  reward  for committing  an  act  or  omission  in  connection  with  his official functions.  Even  if  the  government  servant  was incapable of  showing any favour or rendering any service in connection with  his official duties, he may be guilty; but, the existence  of an  understanding that the bribe was given in consideration  of some  official act  or  conduct  is  an important factor  bearing on  the question as to whether the accused had received the gratification as a motive or reward as mentioned in s. 161, I.P.C. [353GH]      (3 )  The appellant being a mere labourer was incapable

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of showing  any favour  or  rendering  any  service  to  the complainant in  connection with  his official duties. It had not been  shown by  the prosecution  that he  was in any way officially concerned  with the  installation of poles or the giving of  electric connection;  nor was  it shown  that the appellant made any representation, claim or promise, that he would  either  himself  or  through  his  inspector  get  an official act done for the complainant. Or that the appellant had demanded bribe from the complainant. [353A-C, F]      In the absence of any such circumstances the conduct of the appellant  was not  incompatible with  the  role  of  an innocent carrier  of money  without the  requisite mens rea. [353E]      (4) The  charge under  S. 5(1)(d) also is unsustainable because, it  could not be reasonably said that the appellant obtained the  money by  using corrupt  or illegal  means  or otherwise abusing his official position, as a public servant      (5) Section  4(1) of  the Prevention  of Corruption Act Provides that in the trial of an offence punishable under s. 161 or  165, I.P.C., or under cls. (a) or (b) of 5 5(1) read with sub-s.  5(2) of the Act, if the prosecution proves that the accused  had accepted  or obtained a gratification other than legal  remuneration the  court has  to presume that the gratification was  accepted or  obtained by the accused as a motive or reward as mentioned in s. 161, I.P.C. [351-H, 52B] 349      (6) (a)  The presumption,  however, is not absolute and is rebuttable.  The quantum  and nature of proof required to displace  the   presumption,   varies   according   to   the circumstances of  each case.  Such proof  may partake of the shape of  defence evidence adduced by the accused or, it may consist  of   circumstances  appearing  in  the  prosecution evidence  itself   as  a   result  of  cross-examination  or otherwise. While  the mere  explanation given by the accused in his examination under s. 342, Cr. P.C., may not b- enough the burden  on him  to  negate  the  presumption  may  stand discharged, if the effect of the material brought on record, in its  totality renders  the existence  of the  fact to  be presumed improbable.  The accused  may, therefore, rebut the presumption by  showing a  more preponderance of probability in his  favour and  it is not necessary for him to establish his case beyond reasonable doubt. [352-CF]]      Mahesh Prasad  Gupta v.  State of  Rajasthan, AIR  1974 S.C. 773 followed.-      (b) Further,  the sole purpose of the presumption under s. 4(1)  is to  relieve the  prosecution of  the  burden  of proving a  fact which  is an  essential  ingredient  of  the offence under  s. 5(1) and (2) of the Act and s. 161, I.P.C. The presumption,  therefore, can be used only in furtherance of the  prosecution case and not in derogation of it. [352F- G]      (c) In  the present  case.  the  statutory  presumption being antithetical to the prosecution story, namely, that it was the  inspector who  demanded the  bribe  for  showing  a favour and  that the payment was intended for him, could not be availed  of by  the Prosecution  against  the  appellant. [354-CD]      (7) Nor  can the  appellant be  held guilty of abetting the alleged  attempt made by the inspector to obtain illegal gratification. Intention  to aid  the conn  mission  of  the crime is  the gist  of the  offence of  abetment,  and  such intention on  the part  of the  appellant is lacking in this case. It  has not  been shown that the appellant was present any occasion  when the inspector demanded the bribe. [354-D- G]

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    (8) Moreover, the principal accused had been acquitted. The prosecution   having  failed to prove that the money had been paid  to the  appellant pursuant  to the  demand for  a bribe by  the inspector,  the court  cannot make  out a  new cause for the prosecution and hold that the amount had been. received by  the appellant  on his  own or  for some  person other than the inspector. [355 B, D]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 116 of 1971.      Appeal by  special leave  from the  Judgement and order dated the  27th November,  1970 of  the Delhi  High Court in Crl. Appeal No. 35 of 197().      Uma Datta, for the appellant.      Govind Das and R. N. Sachthey, for the respondent.      The Judgment of the Court was delivered by      SARKARIA, J.  This appeal  by special leave is directed against a  judgment of the High Court of Delhi upholding the conviction of  the appellant under s. 5(2) read with s. 5(1) (d) of  the Prevention  of Corruption  Act and s. 161, Penal Code, recorded by the Special Judge, Delhi. The facts of the prosecution case are as follows:      The complainant,  S. K. Jain, manufactures rubber motor parts in  his factory  at Shahdara.  On his application, the Delhi Electric  Supply Undertaking at Gandhinagar sanctioned a power  connection  for  his  factory.  ’l‘’he  complainant deposited the estimate of expenses under the  9-L839 Sup. CI/75 350 terms of  the sanction. In spite of it, for a period of four months, no  A steps  were taken  by  the  employees  of  the Undertaking to  instal the poles and give the connection. S. P. Gupta,  an Inspector  of the  Undertaking approached  the complainant  and   solicited  a   bribe  of   Rs.  125/-  in consideration of  giving the connection. lt was settled that Rs. 25/-  would be paid on June 2(), 1968 and the balance of Rs. 100/- after the electric connection. The complainant had no intention to pay the bribe. Consequently, he contacted S. K. Katoch,  Deputy  Superintendent  of  the  Anti-Corruption Police on  June 20,  1968 at  about 1  p.m. and apprised the latter about the demand of the bribe by Inspector Gupta. The Deputy Superintendent  recorded the complainant’s statement, Ex. P.W.  l/A. He  then co-opted  Daya Nand  Dua  (PW2)  and Bharat Prakash Khurana (PW 3), two clerks from the office of the  Deputy   Commissioner,  and  formulated  a  scheme  for entrapping Gupta.  ’the Police  party reached the factory of the complainant  at about  3.05 p.m. The complainant and the Panch witnesses went inside while the Police officers waited outside. The  complainant  received  a  message  from  Gupta through a  Lineman that  instead(l of  the 20th, he would be coming on the following, day, that the installation of poles at the  site had  commenced and  the  complainant  would  be required to  pay more  amount. The complainant conveyed this information to D.S.P. Katoch.      On June  21, 1968,  at about  10.15 a.m., Gupta came to the factory,  along with  his gang  of labourers and started the installation  work. Gupta  informed the complainant that he would  return to  the factory  either personally  or send somebody else  to collect the amount of Rs. 100/- at about 2 p.m. The complainant passed on this information also, to the D.S.P.  Thereafter  the  D.S.P.  along  with  the  aforesaid witnesses and  others came to the complainant at about 11.30

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a.m. and  settled the  details of  the trap. The complainant produced one currency note of the denomination of Rs. 100/-. The D.S.P.  noted its No. and.returned it to the complainant with the  direction that  he should  pay it  to Gupta. Gupta however did  not turn up at 2 p.m. Instead, the appellant, a permanent labourer  working under Gupta, came to the factory and told  the complainant that he had been sent by Inspector Gupta and  that the  money be  given to him. The complainant said that  the appellant  should send  Gupta to  receive the money. The  appellant reiterated that he had been deputed by Gupta to  collect the  money and  the same  be given to him. Thereupon the  complainant handed  over the currency Note of Rs. 100/-  (Ex. P-l)  to  the  appellant  in  the  immediate presence of P.Ws. 2 and 3. The appellant put the note in the pocket of  his pants.  On receiving  the agreed  signal, the D.S.P. and  his  companions  rushed  in  and  recovered  the currency note  (Ex. P-l)  from the  person of the appellant. The D.S.P.  then sent  a report to the Police Station on the basis of  which a  case was  registered. The  appellant  was arrested.  Subsequently,   on  22-6-1968,   Gupta  was  also arrested.  After   obtaining  the  necessary  sanction,  the appellant and  Gupta both  were sent up for trial before the Special Judge,  Delhi who  acquitted Gupta but convicted the appellant  and   sentenced  him   to  one   year’s  rigorous imprisonment.      Examined under  s. 342,  Cr.P.C. the appellant admitted that at  the material  time  he  was  a  permanent  labourer (Mazdoor) of the D.E.S.U. 351 working in  Shahdara Zone.  He  gave  this  account  of  the circumstances in  which he  had received  the currency  note (Ex. Pl) from the complainant:           "At about  12-30, I  had come  down from the first      floor of my office and was going to my house to take my      meal in  the Hotel.  I was  called  by  Gupta.  He  was      standing near the boundary wall. He inquired from mc as      to where  I was  going. l  told him that l was going to      take my  food. He directed me that after taking my food      I should  visit the  complainant s  factory  where  the      labour was  working and  told me to ask Jain to pay the      money which  Guptaji had  demanded. I did not know what      sort of  money it was and for what purpose it was to be      paid by  S. K.  Jain and to be taken by Gupta. accused.      One Mitter Sell was also present at that time when this      talk  took  place  between  me  and  Gupta  accused.  I      accordingly,  after   taking  my   food  went   to  the      complainant s  factory and  checked  the  work  of  the      labour and  then went  to the complainant and asked him      to pay me the money which had been demanded by Guptaji.      . Complainant  told me  to send  Guptaji but I told him      that he  had asked  me to bring the money. He therefore      paid  me   a,  currency   note  of  Rs.  100/-  without      disclosing anything  that this  was bribe  money to  be      paid to Gupta co-accused."      He further  admitted that  soon after the collection of this amount from the complainant, the D.S.P. came there with his party  and recovered  the same  currency note  from  his possession. He added that he was only a labourer and was not in  a   position  to  show  any  favour,  whatever,  to  the complainant. He  did not know that the note was bribe money. He claimed to be all innocent carrier.      In  defence,   he  examined   Mitter  Sen  (DW  1)  who corroborated the  appellant’s version  as to  how Gupta  had instructed the appellant to collect and bring the money from the complainant.

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    Two charges, one under s. 5(1) (d) read with s. 5(2) of the Prevention of Corruption Act and the other under s. 161, Penal Code  were framed  against the  appellant. The charges were in  the alternative  and it was stated therein that the money was  obtained by him either for him self or for Gupta, or for both.      The courts below have convicted the appellant mainly on the ground  that proof  of receipt  of Rs.  100/-  (currency note)  by  the  appellant  from  the  complainant  raises  a presumption under  s. 4(1)  of the  Prevention of Corruption Act against him and the appellant has not been able to rebut that presumption.      Section 4(1) of the Prevention of Corruption Act reads:      "Wherein any  trial  of  an  offence  punishable  under section 161  or section  165 of the Indian PenaI Code (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-s. (2) thereof,  it  is  proved  that  an  accused  person  has accepted or obtained, or 352      has agreed  to accept or attempt to obtain, for himself      or for  A 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."      From a  reading of the above provision it is clear that its operation,  in terms,  is confined  to any  trial of  an offence punishable  under s.  161 or  s. 165,  Penal Code or under clause (a) or (b) of s. 5(1) read with sub-section (2) of that  section of  the  Act.  If  at  such  a  trial,  the prosecution proves that the accused has accepted or obtained gratification other  than legal  remuneration, the court has to presume  the existence  of the further fact in support of the prosecution  case,  viz.,  that  the  gratification  was accepted or  obtained by  the accused  as a motive or reward such as  mentioned in  s. 161,  Penal Code.  The presumption however, is  not absolute. It is rebuttable. The accused can prove the  contrary. The  quantum and  the nature  of  proof required to  displace this presumption may vary according to the circumstances  of each  case. Such proof may partake the shape of  defence evidence  led by  the accused,  or it  may consist  of   circumstances  appearing  in  the  prosecution evidence  itself,   as  a  result  of  cross-examination  or otherwise. But the degree and the character of the burden of proof which  s. 4(1) casts on an accused person to rebut the presumption raised  thereunder, cannot  be equated  with the degree and  character of  proof which under s. 101, Evidence Act rests  on the  prosecution.. While the mere plausibility of an  explanation given  by the  accused in his examination under s.  342, Cr.P.C.  may not be enough, the burden on him to negate  the presumption  may  stand  discharged,  if  the effect of  the  material  brought  on  the  record,  in  its totality,  renders  the  existence  of  the  fact  presumed, improbable. In  other  words,  the  accused  may  rebut  the presumption by  showing a  mere preponderence of probability in his  favour; it is not necessary for him lo establish his case beyond  a reasonable  doubt-see Mahesh  Prasad Gupta v. State of Rajasthan(1).      Another aspect  of the  matter which has to be borne in mind is  that the  sole purpose  of the presumption under s.

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4(1) is  to relieve the prosecution of the burden of proving a fact  which is  an essential  ingredient of  the  offences under s.  S (1)  (2) of the Prevention of Corruption Act and s. 161, Penal Code. The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If  the story  set  up  by  the  prosecution  inherently militates against or is inconsistent with the fact presumed, the presumption  will be  rendered  sterile  from  its  very inception, if out of judicial courtesy it cannot be rejected out of hand as still born.      Let us  now consider  the facts  of the present case in the light  of the principles enunciated above. The testimony of its star witness, S. K.      (1) A. I. R. 1974 S. C. 773. 353 Jain (P.W.  1) is  that  it  was  Inspector  Gupta  who  had demanded that  - money  as a motive or reward tor expediting the installation  of the power connection and that the money was handed  over to  the appellant  only for transmission to Gupta in pursuance of the latter’s instructions given to the complainant earlier  in the  morning. It  is not the case of the complainant  that the  appellant had  ever demanded  any bribe from  the  complainant,  or  that  the  appellant  was present on  any occasion  on which  Gupta had  demanded  the bribe. Nor  has it  been shown  by the  prosecution that the appellant was  in any  way  officially  concerned  with  the installation of  the poles  or the  giving of  the  electric connection. At  the material time according to the appellant he was  working as  a mere  labourer or Mazdoor in the first floor of  the D.E.S.U.  Office at Shahdara. This fact is not controverted  by  the  prosecution.  Of  course,  it  is  in evidence that on coming to the factory of the complainant at about 2  P.M., the  appellant first  went to  see the labour working at  the installation  site  and  then  went  to  the complainant to  receive the  money saving  that he  has been sent by Gupta to fetch it.      Mr. Gobind  Das, the  learned  Counsel  for  the  State contends that  this conduct of the appellant in checking the labour, showed  that he  was not  an innocent carrier of the money for  Gupta but  knew that  it was  being obtained as a bribe in  connection with  the  installation  of  the  power connection. In any case, maintains the Counsel the appellant was guilty  of abetment  of an  offence under sec, 161 Penal Code and s. 5 of the Act.      We are  unable to  accede to  this contention.  In  our opinion,  this   Act  of   the  appellant   was  a   neutral circumstance. It  was not  indicative of  a guilty mind. The appellant explained  that he  had checked the labour working at site  because he  had been  asked to  do so  by Inspector Gupta. This  conduct of  the appellant,  therefore,  was  no ground to  hold that  he had  received the  G.C. Note of Rs. 100/- with  the requisite  mens rea. Evidently in collecting this currency  note from  the complainant he was Acting only as an  innocent tool  of Gupta. He was a mere labourer. Even in that  humble position,  he was  not a  member of the gang working at  the installation  site in  the  factory  of  the complainant. He  was not concerned ill his official capacity with  the   installation  work   or  the   giving  of  power connection. Being an unconcerned menial, he was incapable of showing  any   favour  or   rendering  any  service  to  the complainant in  connection with  his official duties. One of the essential  ingredients of  the  offence  under  s.  161, I.P.C. with  which the appellant stands charged is, that the gratification must  have been  received by the accused as "a motive or  reward" for  committing an  act  or  omission  in

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connection with  his official  functions. lt  must be  shown that there  was an understanding that the bribe was given in consideration to  some official  act or  conduct. It is true that in law the incapacity of the government servant to show any favour  or render  any service  in connection  with  his official duties  does not  necessarily take  the case out of the mischief  of these penal provisions. Nevertheless, it is an important  factor bearing  on the  question as to whether the accused  had received  the gratification  as a motive or reward for  doing or  for hearing  to do any official act or for showing  any favour  or disfavour in the exercise of his official  functions.   This  question   as  to  whether  the government servant receiving the money 354 had the requisite incriminatory motive is one of fact. Could it be  reasonably said  in the  circumstances of the instant case that  the money  was handed  over to  the appellant  or received by  him as  a motive or reward such as mentioned in s. 161,  Penal  Code  ?  It  is  nobody’s  case  that  while collecting the  sum of  Rs, 100/-,  the appellant  made  any representation, claim  or promise,  whatever, that  he would either himself or through Gupta get an official act done for the complainant.  Indeed, a  prudent businessman  like  Jain would never  pay such  a substantial  amount as a bribe to a mere Class  IV servant  in consideration  of any  promise of favour or  service held out by the latter. Such a tall claim or promise  to do  favour or  service by  a menial  would be manifestly quixotic.  It would  not pass  muster. Indeed the complainant did  not hand  over  the  money  till  he  after repeated enquiry,  was  convinced  that  the  appellant  was asking for  money not for himself but for Gupta and had been sent by  the latter  to  collect  an(l  fetch  it  from  the complainant.  The  conduct  attributed  by  P.W.  1  to  the appellant was  not incompatible with the role of an innocent carrier. Thus,  paradoxical as  it may  seem, the very story propounded  by   the  complainant   (P.W.  1)   negates  the presumption, nipping it-as it were-in the bud.      Be that  as it  may this  statutory  presumption  being antithetical to  the prosecution story, could not be availed of  by   the  prosecution.  This  being  the  position,  the appellant could  not be  held guilty  of the charge with the aid of s. 4(1) of the Act.      Nor can  the appellant  be held  guilty of abetting the alleged  attempt   made  by  Gupta  to  obtain  the  illegal gratification. Intention to aid The commission of the crime, is the  gist  of  the  offence  of  abetment  by  aid.  Such intention, on  the part of the appellant was lacking in this case. Moreover, Gupta, the principal, has been acquitted and exonerated of  committing the  offending act, the commission of which is alleged to have been aided by the small fry, the appellant.      The charge under s. S (1) (d) of the Act also cannot be sustained for  the reason that in the peculiar circumstances or the  case, it  could not  be  reasonably  said  that  the appellant had  obtained  the  currency-note  by  using  some corrupt or  illegal means  or otherwise abusing his official position as  a public  servant. This  point was canvassed on behalf of  the appellant  before  the  High  Court  but  was negatived by it in these terms:           "In  this   case  the   appellant  had   told  the      complainant that  he had  been sent  by Inspector Gupta      and that  he should  pay the money. It has been held by      the Special Judge while acquitting Inspector Gupta that      he was  not the  person who  had sent  the appellant to      collect  any   money  from   the  complainant.   Before

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    contacting the  complainant the  appellant had  checked      the  labour  which  was  working  in  the  factory  for      installation of  the lines  for electricity.  All  this      showed that  he represented  himself to the complainant      as a person connected with the Department concerned. He      also used  corrupt means  to ask the money on behalf of      Inspector  Gupta   and   thus   this   ingredient   was      satisfied."      We find  ourselves unable to agree with this reasoning. We have  already noticed above that this was not the case of the prosecution? as 355 put in  evidence, that  the appellant had demanded the money on his  own account by any express or implied representation to get  any favour  or  service  done  to  the  complainant. Rather, the  positive case  set up  by  the  prosecution  in evidence was  that the  money was  demanded by Gupta and was received by  the appellant  on his  behalf pursuant  to  the instructions of  Gupta given  to  the  complainant  earlier. Therefore, if  the prosecution  has failed to prove that the money had  not been  paid to  the appellant  pursuant to any demand of  bribe made  by Gupta, the court cannot make out a new case  for the  prosecution to  hold that  the amount had been received by the appellant on his own or for some person other. than  Gupta. We  have already held that the appellant was  a   mere  labourer  who  was  not  concerned  with  the installation work  at the  site or  with the  giving of  the power  connection   to  the  complainant.  In  view  of  the categorical position  taken by  the prosecution in evidence, it does not now lie in their month to may that the appellant must have  received the  money for himself or for some other person; much  less can  it be  said that  the appellant  has abused his  official position  or has used any illegal means in acting  as an  innocent  carrier  for  Gupta.  Thus,  the essential ingredient  of the  offence under  s. 5(1) (d) was lacking in this case.      We are  therefore of  the opinion  that on the facts of this case,  the prosecution  had failed  to bring  home  the charges  to   the  appellant   beyond  a  reasonable  doubt. Accordingly we  allow this  appeal, set aside the conviction of the  appellant and  acquit him  of the  charges  levelled against him. V.P.S.                                       Appeal allowed. 356