JUDGMENT
Malik Sharief-ud-din, J.
(1) The respondent, Satish Chand Sharma, was charged under Section 5(l,)(d) of the Prevention of Corruption Act, 1947, for an offence punishable under Section 5(2) and he was also charged under Section 161, Indian Penal Code, by the Special Judge Delhi, and was finally acquitted of the charges by his order dated 28th May, 1976. Aggrieved by the acquittal of the respondent, State has come in appeal.
(2) To begin with, the charge against the respondent is as under : “THAT on 20-12-1974 at Delhi while employed and posted as Engineering Supervisor (Automobiles) Modern Bakeries. Delhi Unit, a Government of India Enterprise, New Delhi, a public servant in the discharge of his official duties as such public servant, by corrupt or illegal means or otherwise by abusing his position as such public servant, had accepted or obtained Rs. 250.00 from Shri Jaswant Singh, Proprietor M/s. Khalsa Tyre Soles, Rohtak Road, Delhi and thereby committed an offence under Section 5(l)(d) of the Prevention of Corruption Act, 1947, punishable under Section 5(2) of the aforesaid Act. Secondly, on the same day and time while employed and posted as Engineering Supervisor (Automobiles) Modern Bakeries. Delhi Unit, a Government of India Enterprise, New Delhi, a public servant in the discharge of his official duties as such public servant, by corrupt or illegal means or otherwise by abusing his position as such public servant accepted or obtained Rs. 250.00 as illegal gratification other than his legal remuneration as a motive or reward for shooing him favor in getting his payment released from the Modern Bakeries for having their job of retreading the tyre soles of the vehicles vide his bill Nos. 1187 and 1188 for a sum of Rs. 1045.00 and thereby committed an offence punishable under Section 161 of the Indian Penal Code.”
(3) Stating in a little detail, prosecution’s case is based on the complaint of one Shri Jaswant Singh, Proprietor M/s. Khalsa Tyre Soles, Rohtak Road, Delhi. The respondent on the relevant date, i.e. 20th December, 1974, was employed as Engineering Supervisor (Automobiles Modern Bakeries, Delhi Unit), a Government of India Enterprises, New Delhi, (hereinafter for short known as ‘enterprise’). The complainant on the relevant date was engaged in resoling the vehicular tyres of the aforesaid enterprise for four years. The work was being allotted to him on the basis of lowest quotations. On submission of the bills he used to receive payment through cheques. The case of the prosecution is that the respondent used to create obstacles in the payment of his bills with a view to pressurise him to grease his palm. This according to the complainant was being done by the respondent by not verifying the bills as without the verification of the bills by the respondent the bills were not being passed for payment.
(4) About a month prior to the date of the incident, the complainant had completed the work worth Rs. 1045.00 and two bills Nos.1187dated 1.12.1974 for Rs. 285.00 marked Ex. PW2/A/1 and bill No. 1188 dated 7th December, 1974, marked Ex. PW2/B/1 were pending for payment with the aforesaid enterprise on the date of incident. On 17th December, 1974 when the complainant inquired on telephone, he learnt from the Cashier that his cheque was ready. Allegedly, on 19th December, 1974, the complainant, is stated to have visited the enterprise at 3 p.m. to collect the cheque. There, he is alleged to have met the respondent, who told him that he would not get the cheque unless the respondent was paid Rs. 250.00 as bribe. A bargain was allegedly struck and it was agreed that the respondent would visit the shop of the complainant at 3 p.m. on 20.12,1974, and on payment of Rs. 250.00 to him, the cheque would be delivered to the complainant. The complainant had also alleged that the cheque which he generally used to collect from the Cashier, had also been taken away by the respondent from the Cashier and according to him, the respondent had also told him to inquire from him on telephone in case he did not come at 3 p.m. On 20th December, ] 1974, the complainant ataboutl2a.m. goes to the Anticorruption Organisation where his statement marked Ex. PW2/B, is recorded and thereafter a trap is arranged. Two panch witnesses namely PW3 Sardar Harbans Singh and Public Witness 4 Shri Gurbax Singh are summoned from the office of the Joint Director, Agriculture, Delhi Administration. In their presence the statement of the complainant is read over to them and after the complainant admits its correctness, the complainant hands over Rs. 250.00 , two hundred rupee and five notes of ten rupee denomination. Serial numbers of these notes are noted and thereafter they are dusted with phinopethelin powder (for short P. Powder). Demonstration is also given in respect of the effect of P. Powder in the presence of panch witnesses. They are also given necessary directions, that they have to remain quite close to the complainant and hear and see what transpires between the complainant and the respondent. The panch witnesses are also informed that in case the bribe is accented they will give an agreed signal to the raiding party.
(5) The prosecution version further is that thereafter the raiding party headed by, Shri Krishan Gopal, Public Witness 7, proceeded to the spot at about 3.20 p.m. The respondent is stated to have come in an Ambassador Car bearing registration No. Dhb 6240. He parked the car opposite the shop of complainant. The complainant accompanied by panch witnesses, is said to have gone near the respondent. The respondent is alleged to have come out of the car, had some talk for two to three minutes with the complainant. The respondent is then stated to have sat on the driving seat of the car and there it was noticed that he accepted the bribe money with his left hand and put it in the left pocket of his coat. On receiving the signal given by Public Witness 3, Harbans Singh, there was a raid. The respondent was told by the Investigating Officer that he has accepted bribe, whereupon he took out the bribe money with his left hand from his pocket. The currency notes were compared and seized. Thereafter left hand and the left pocket of the coat of the respondent was washed in sodium carbonate solution which turned into pink. A raid report Ex. PW7/X was prepared and the case was registered.
(6) The whole case of the prosecution, in fact, rests on the evidence of PW2, Jaswant Singh, complainant, PW3, Harbans Singh and Public Witness 4, Gurbax Singh, two panch witnesses as also on the testimony of Public Witness 7, Krishan Gopal, investigating officer. Much depends upon the fact as to whether their testimony is believed or not. To our mind, their testimony can be only relied upon iF the circumstances of the case also support their version. It will also depend upon the fact if the prosecution’s story is reliable and inspiring. The learned Additional Sessions Judge has given adequate reasons for the acquittal of the respondent. We, however, prefer to deal with the ease in our own way. of course, keeping in mind the contention of Mr. D.R. Sethi, whereby he invited our attention to the rule regarding the jurisdiction of this court, in dialing with the acquittal appeals. Mr. Sethi placed reliance on Caetano Piedade Fernandes and another v. Union Territory of Goa, Daman & Diu, Panaji, Goa, . The ratio of the law laid down by the highest court of the land in dealing with the appeals against acquittal is as under : “THAT even though the appellate court has the same power as the trial court of appreciating evidence and coming to its own conclusion on questions of fact, it should not interfere with an acquittal, unless it finds that the view taken by the trial Court is devoid of reason or is perverse. If the view taken by the trial court is reasonably possible view, the appellate court should not disturb the acquittal merely because it thinks that another view is better or more preferable.”
(7) With this rule in mind we may now grapple with the facts and evidence of this case. We have earlier pointed out that the entire case rests on the testimony of PWs 2, 3, 4 and 7. In our view, after considering the entire material, we arc of the opinion that the learned trial judge has taken a view of evidence which can by no stretch of imagination be dubbed as unreasonable or perverse. To our mind, otherwise also, on the facts of this case, that appears to be the only possible view. But, if for some reason these observations on our part are not considered enough to dispose of this appeal, we would like to add that in our view neither the prosecution story nor the prosecution witnesses arc inspiring.
(8) There is hardly any need for us to detail the prosecution evidence which has been elaborately dealt with and reproduced by the Special Judge in his lengthy judgment. In short, in respect of the board facts of the case Pw 2, 3, 4 and 7 have all supported the prosecution. PW4, however, has stated that the only talk that transpired between the complainant and the respondent within his hearing was in respect of tyres. He does not support the prosecution on the point of demand of bribe. The prosecution, however, is supported on the point of demand by Public Witness 2 and Public Witness 3.
(9) Assuming that bribe was accepted, though that is not our finding, there is great deal to be said against the prosecution. This we are only saying to meet the arguments of Mr. G.S. Sharma that once the money was recovered from the pocket of the respondent, presumption would be that he accepted it as bribe, and the onus of proving that it was otherwise, would squarely shift on him under section 4 (1), Prevention to Corruption Act. The contention, to our mind, appears to be misconceived. To attract this presumption, the prosecution must first prove that the bribe was not only demanded but it was accepted as well. If the prosecution case is not believable, then the question of presumption would not arise. The question of presumption would only arise, if the prosecution discharges its burden of proving the case. This has been so held in Trilok Chand Jain v. State of Delhi, 1977 Criminal Law Journal 254 wherein the law laid down on this point is as under: “THE degree and the character of the burden of proof which Section 4(1) casts on an accused person to rebut the presumption raised there under, cannot be equated with the degree and character of proof which under Section 101, Evidence Act rests on the prosecution. While the mere plausibility of an explanation given by the accused in his examination under section 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 show- ing a mere preponderance of probability in his favor, it is not necessary for him to establish his case beyond a reasonable doubt. The sole purpose of the presumption under Section 4 (1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under Section 5 (1) (2) of the Prevention of Corruption Act and section 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.”
(10) Thus, the reliance on presumption under Section 4(1), Prevention of Corruption Act is misplaced. Before placing reliance on the presumption, it is the duty of the prosecution to first prove the basic facts on which the prosecution rests. Unless that is done this legal presumption cannot be invoked.
(11) We are in full agreement with the findings of the learned Special Judge and we do so for very cogent and plausible reason. This brings us to the examination of defense evidence regarding the procedure followed in verification and payment of bills in the enterprise. The evidence of the relevant defense witnesses, all-officials of the enterprise, is very important. In the absence of looking into that procedure, it is difficult deal with this case. We are making mention of this procedure to find out if the respondent was in a position to create obstacle in the payment of cheques and this we do for the reason, because the positive case of the prosecution is that the respondent was creating obstacle in the payment of bills. The case of the prosecution is not that despite the fact that the respondent was not in a position to favor, he did create an impression with the complainant that without his intervention, the bills would not be paid to him. We have a positive case before us. as to how the respondent allegedly abuse his official status and if it is not borne out by the circumstances of this case, we hardly need to say that the case is false.
(12) Let us as such revert back to the procedure in the enterprise. Direct and reliable evidence which is not controverter, in this regard is provided by Dw 1 Mr. Subramaniam and Dw 4 Bhagwan Sahai Bansal. The procedure for payment of bills as stated by them is the following : On the submission of bills a certificate verifying that the work has been done according to specified standard is issued by the Maintenance Engineer and it is only in his absence, that such verification was being done by the respondent. After verification, the bill goes to Chief Manager for approval and after he accords his approval it is sent by the Maintenance Engineer to Accounts Clerk for further scrutiny by the Accounts Branch who, after further scrutiny prepares the voucher and makes an entry in the payment register. The papers are then submitted to the Accounts Manager who after further scrutiny of the bills initials the voucher and the entry made in the payment register and then it is again sent to the Chief Manager for sanctioning the payment. Thereafter the General Manager accords sanction and the bill and voucher is sent back to the Accounts Manager. From there the papers go to the concerned clerk and then to the cashier. The cheque is prepared by the cashier and the cheque along with the voucher is then again sent to the Accounts Manager for scrutiny and initials. The Accounts Manager then initials the counter-foil of the cheque and forwards the same to the Chief Manager for his signature on the cheque. From there the papers go back to the Accounts Manager, who on receipt thereof passes on the cheque along with other papers to cashier. The cashier then disburses the cheque to the concerned party, after obtaining his signatures on the voucher. Dw 1, .Accounts Manager, has clearly evidenced that after the bill and the certificate is sent to the Accounts Branch, Maintenance Division has no role to play. Pw 5, Shri S S. Gupta, has also clearly stated that the duty of the respondent was to supervise the Automobiles Section as also the Maintenance of vehicles including their repairs. Dw 4, Shri Bansal, has categorically stated that the respondent had nothing to do with the disbursement of cheques. All these faces are proved by the aforesaid set of witnesses, whose testimony on this point cannot be brushed aside. In the present case we find that both the bills of ihe complainant had been verified by the Maintenance Branch in which the respondent was working long before 17th December, 1974, the date on which the cheque was ready.
(13) Wherein a case the specific allegation against the accused person in that he demanded illegal gratification to do a favors in his official capacity. it is absolutely necessary for the prosecution to show that the accused was in a position to do such favor. In a case such as this, it was in fact, for the prosecution to bring these procedures to the notice of the court We have made a reference to the procedure that was in vogue in the enterprise in this regard, with a view to indicate that it was none of the duties of the accused, either to prepare or to disburse the cheques. This was very much within the knowledge of the complainant who had dealings with the enterprise. In fact the respondent in this case was not even a verifying authority of the bills, a job which was essentially the function of the Maintenance Engineer. Even the complainant has admitted that on all previous occasions, he used to collect cheques from the cashier and that even on 17th he was told by the cashier on telephone that the cheque was ready. Ought we to know under such circumstances as to where was the occasion for the complainant to approach the respondent, particularly, when the cheque was ready with the cashier and he had to disburse it after getting receipt for the same ?
(14) With this background in view, let us now examine the merits of this case. The complainant Public Witness 2, in his complaint Ex. PW2/C has clearly stated that the accused used to create obstacle in the payment of the bills and his bills were not passed for payment in the absence of verification by the accused. This is factually incorrect as the bills had long before been verified and the accused was neither a verifying authority nor was he the person who was disbursing the cheques to the parties. In this very complaint, it is alleged that on 19-12-1974, when he asked the accused for the cheque, he was told that he could only get it if Rs. 250.00 are paid to him. He also states that he was informed by the cashier that the cheque had been taken away from him by the accused. This also is factually incorrect. The cheque was not found at all in the possession of the accused and was recovered 14 days after the trap from the office of the enterprise. Again the complainant alleged that the accused had told him that he would visit his shop on 20th December at 3.30 p m. and deliver him the cheque soon after collecting the bribe money. All this is also factually incorrect. If the complainant used to collect the cheque from the cashier, where was the necessity for him to go to the accused for the same ? If the cheque was to be disbursed by the cashier, who had also to procure a receipt, how could the cheque be handed over to the accused. It is on record right from the month of Public Witness 7, Investigation Officer, that no attempt was made by him to search the car or the person of the accused for recovery of cheque. The explanation given is that he already knew that the cheque in question was in Modern Bakeries. The Investigating Officer, however, has not taken the court into confidence as to how he came to know this fact. Admittedly, he had not contacted any official from the enterprise, till then. That makes us believe that he must have come to know about it from the complainant, and that he knew that the allegations against the respondent were being falsely made. The most astonishing feature is that to discover this crucial piece of evidence, no attempt is made by Public Witness 7. He only does so on 4th January and the cheque is procured from Modern Bakeries. Perhaps he was made wiser by the legal branch that this was a crucial piece of evidence and that is how he went so late to recover the same. Dw 4, the cashier, has denied that he ever gave the cheque to the accused. The testimony of the complainant that the cashier told him that the cheque had been taken away by the accused is not admissible in view of the direct testimony of the cashier, Dw 4, that the cheque was all the time lying with him and he never informed the complainant about the same having been taken by the accused. According to him the accused did not contact him after 17th of December at all.
(15) The next crucial aspect of the case is that the complainant has admitted in his statement that. the time for payment of bribe was fixed by him on telephone on 20.12.1974. This clearly belies the complainant’s testimony that the time was in fact. fixed on 19th December, 1974. He admits that he contacted the accused in this regard at 11.30 a m. on 20-12-1974 and inquired as to when the accused would come to collect tyre from him and the accused had told him that he would come at 3.30 p.m , an appointment which the accused kept. This ii significant in the sense that the complainant seems to have telephoned the accused at a time when he was in Anti Corruption Office. Why, if we may so ask, has this been done and why, the accused was asked to come at that time to collect the tyre ? The only reasonable inference would be that the prosecution story is false and it was false to the knowledge of Public Witness 2 and Public Witness 7. In all probability, it was Pw 7 who asked the complainant to call the accused at that hour on the pretext of collecting the tyre, lest the raid is unsuccessful. That also goes to show that the complainant had not come into contact with the accused on 19th December. 1974, when the demand for bribe was allegedly made for the first time. From these facts, it clearly appears that it was really an arranged trap. Secondly, the complainant had not even in his statement under section 161, Penal Code, stated that he had been told by the cashier, that the accused had taken the cheque and the voucher. The most important feature of the case is that neither the cheque nor the voucher was ‘found in the possession of the accused. All that goes on before us, clearly establishes that there was no occasion for the complainant to contact the demised at least for collecting his cheque. That ‘also goes to show that there was no occasion for the accused to demand bribe or for the complainant to agree to pay it. This is particularly so, in view of the fact, that within the knowledge of the complainant, both the cheque and the voucher word with the cashier and the cashier would not in normal course abdicate’ his duties by handing over these to the accused. Moreover, according to the statement of the complainant, the accused had come to collect tyre and that too at his asking. All these facts taken together, show that there was no demand for bribe. Surprisingly, the complainant admits that the margin of profit in doing this work was 15 to 20 per cent. If that be so, there was no reason for him to part with the bribe of Rs. 250.00 when his earnings were less than that
(16) Next we come to the acceptance part of the bribe. The witnesses testifying to this fact, are Public Witness 2 and Public Witness 3. Public Witness 3 says that within his hearing the bribe was demanded. Public Witness 4 who is also a panch witness has clearly deposed that the only talk that transpired between the complainant and the accused was in respect of tyres. We are under the circumstances, unable to believe Public Witness 3, another panch witness, on the point of demand. Public Witness 4, Gurbax Singh is equally respectable and disinterested witness. According t.o,him he was two steps ahead of Public Witness 3. He was naturally in a better position to listen to what transpired between the two. What is curious is that we are told that the bribe was demanded and accepted within the view and presence of Pw 3 and 4. This does not appear to be true. It is impossible to believe that the accused would create evidence against himself. In normal course this never happens.
(17) Another important feature is about the recovery of the tinted currency notes, from the left pocket of the coat of the accused. We are astonished at the clumsy manner in which the recovery has been effected It has created a great deal of suspicion in our mind. The prosecution case is that the accused has accepted the bribe money with his left hand and -put it in ‘the left pocket of his coat. The currency notes are dusted with P. Powder with the singular purpose of showing the existence of a circumstance, which would independently show that bribe was accepted. When this is the object, it was all the more necessary for the Investigating Officer to secure the arms of the culprit immediately and after searching his person, recover the currency and then take his hand wash. Instead of securing the arms of the accused he has asked the accused to put his left hand in his left pocket and draw the money from it. This is a fact which is not denied by the prosecution. Is it that the Investigating Officer was aware that the money has been sneaked into the pocket of the accused and unless he himself draws it from his pocket, there would be no evidence of P. Powder on his hands. That to our mind also makes the whole case suspicious and the benefit eventually must go to the accused)
(18) In the presence of all these facts which are staring us in the face it is not necessary for us to go into the stand taken by the accused. (The burden of proving the case squarely rests on the prosecution and this burden cannot be diluted simply because the charge is under section 4(1) of the Prevention of Corruption Act. Section 101 of the Evidence Act is equally applicable to such cases. Even if the explanation tendered, by the accused is not plausible the burden on him to negate the prosecution case will always stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of fact presumed, improbable. It is not essential for him to establish his case beyond a reasonable doubt This is so held in 1977 Criminal Law Journal 254. (supra).
(19) Lastly, we may state even at the cost of repetition that, the positive case of the prosecution is that the accused demanded bribe as he was in a position to do favor-by issuing cheque against the bills submitted by the complainant. This is a question of fact, and we have on careful consideration of the evidence found that this fact, prosecution has utterly failed to establish. Under these .circumstances this appeal fails. It is accordingly dismissed.