REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1053 OF 2005
Sayyed Shabiralli Hafizali .....Appellant
Versus
State of Maharashtra ...Respondent
JUDGMENT
Dr. ARIJIT PASAYAT, J.
1. Challenge in this appeal is to the judgment of a learned Single of the Bombay High
Court, Aurangabad Bench upholding the conviction of the appellant for offence punishable under
Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (in short the
`Act’). The learned Special Judge, Ahmednagar, had found the accused-appellant guilty and
convicted him as aforenoted and to suffer imprisonment for one year and to pay a fine of
Rs.1,000/- with default stipulation.
2. Background facts in a nutshell are as follows:
The complainant Mhatardeo Dagadu Dahale, resident of Dule (Chandgaon) was running a tailoring
shop by name ‘Surekha Ladies Tailors’ at Pathardi. The land bearing S.No.92/1 situated at village
Dule (Chandgaon) was owned by complainant’s father. He wanted to install electric pump set on
the well situated in the said land. For that purpose, he had made an application to the office of
Maharashtra State Electricity Board (in short `M.S.E.B.’), Pathardi. However, the M.S.E.B. did not
take any cognizance of the said application. Complainant’s father, therefore, submitted another
application in the year 1980. Thereafter survey of the land and in particular the place where the
electric motor was to be installed was carried out and the complainant was asked to carryout the
preliminary requirements and to submit the test report. Accordingly, the complainant had
submitted the test report on 12.11.1986. As the complainant’s father was of old age, complainant
was in fact attending all the work in connection with the agriculture operations and allied work. As
per the Rules of the M.S.E.B., it was necessary for the complainant to deposit certain charges for
receiving the material required for the installation and connection of the electric motor. The
complainant, therefore, deposited Rs.610/- in A.D.C.C. Bank, Ahmednagar on 26.12.1984. In
spite of such compliance on the part of the complainant and his father, the M.S.E.B. had not
provided the necessary material and connection. For getting the material released from the
M.S.E.B. store, it was necessary to issue gate pass. For that purpose, the complainant had met the
accused, who was then working as Sub-Engineer in the office of M.S.E.B., Rural Sub Division,
Pathardi and the accused had told him that he would be sending one Channe, Wireman. However,
nobody turned up till 19.11.1986. Hence, the complainant contracted the accused on that day.
However, even on that day, the gate pass was not issued in favour of the complainant. On
26.11.1986, the accused went to the shop of the complainant and told him that he would issue the
gate pass, but for that purpose, the complainant will have to pay Rs.100/- to the accused. The
complainant told him that he had not that much amount to pay at that time and that he would
collect the amount and give him within a short period. Thereafter on 02.12.1986, the complainant
went to the house of the accused at about 9.00 to 9.30 p.m., at that time also, the accused told him
that on the next day, while going to his house for meals from the office, he would hand over the
gate pass to him and that he should pay him Rs.100/- at that time. The complainant thereafter went
to the office of Anti Corruption Bureau at Ahmednagar and narrated the entire incident to Mr.
Joshi, Deputy Superintendent of Anti Corruption Bureau and lodged a complaint wherein he
specifically stated that the accused demanded bribe of Rs.100/- for issuing gate pass in favour of
the complainant and that he would come to his shop the next day in the afternoon to collect the
amount and to hand over the gate pass. The complainant was, therefore, asked to come to the Anti
Corruption Bureau on the next day. Accordingly, the complainant went to the said office on the
next day. At that time, the police called two panchas by names Vavhal and Godbole. The search of
the complainant was taken in the presence of panchas and at that time, complainant handed over an
amount of Rs.100/- to which police applied anthracene powder and gave necessary instructions to
the complainant as well as to the panchas. Except that amount of Rs.100/- and another sum of
Rs.18/-, nothing was kept on the person of the complainant. Then the police, panchas and
complainant proceeded in a Jeep to Pathardi. They halted the Jeep at a distance of about 1 km.
from the complainant’s shop and then pancha witness Vavhal and complainant went to his shop.
They waited there till about 3/3.30 p.m. However, the accused did not turn up. They, therefore,
informed this fact to Deputy Superintendent of Anti Corruption Bureau, Mr. Joshi. With his
permission, the complainant and the pancha witness Vavhal then went to the office of M.S.E.B.,
Pathardi to find out as to whether the accused was there. However, the accused was not found there
but they were informed that accused would be coming within 15/20 minutes. Hence, both of them
sat on the ‘Ota’, which was in front of the said office. At about 5.30 p.m., complainant’s father went
to that place and informed the complainant that Sayyedsaheb i.e. the accused has come to his shop.
The complainant and pancha witness Vivhal therefore went to the shop of the complainant. The
accused was sitting in the complainant’s shop. After reaching there, complainant asked the
accused, whether he has done his work. The accused answered in the affirmative and asked the
complainant as to what about him. On that, the complainant answered in the affirmative. Then the
accused took out a folded chit, which is proved to be the gate pass, (Exhibit-21) and handed over
the same to the complainant. Complainant took out the marked currency note of Rs.50, two
currency notes of Rs.20/- and one currency note of Rs.10, in all Rs.100/- to which anthracene
powder was applied, and gave them to the accused. The accused put the said amount in the pocket
of his Manila. The complainant put Ext.21 in the pocket of the Manila in which initially he had
kept the marked currency notes. The complainant then immediately went out of the shop and gave
signal. Thereupon the police constables and Deputy Superintendent Mr. Joshi entered the shop.
The police Constables held the hands of the accused and Deputy Superintendent Mr. Joshi asked
the accused as to where the bribe amount was. Thereupon, the accused handed over the amount of
Rs.100/- put by him in his pocket. Police then carried out the post-trap panchanama in which it was
noted that the numbers of the marked currency notes mentioned in the pre-trap panchanama and
post-trap panchanama were the same. Besides this, anthracene powder was noticed at the fingertips
of the accused so also at some portion of the Manila of the accused. The police also attached the
gate pass, Exhibit-21. The copy of the panchanama was handed over to the accused and accused
signed the same for having received the copy. Thereafter, Mr. Joshi, Deputy Superintendent
recorded the statements of complainant and some other witnesses and after obtaining necessary
sanction for prosecution and on completing the investigation submitted charge sheet against the
accused in the Court of Special Judge, Ahmednagar.
As the accused pleaded innocence, trial was held. Four witnesses were examined including the
complainant, panch witness, Assistant Engineer and Deputy Superintendent of Police, Anti
Corruption Bureau. The accused examined his wife as a defence witness. His stand was that his
wife had given clothes for stitching to the complainant and he had gone to his shop to collect the
money for the lost cloth. After considering the evidence, the trial Court concluded that the
prosecution has fully established the demand of bribe. An appeal was preferred before the Bombay
High Court.
Stand of the accused before the High Court was that since money was not given by the complainant
to the accused in the office but at the shop of the complainant, it proves that the defence version is
correct. The High Court noted that admittedly the complainant was running a tailoring shop and
complainant’s father had submitted an application for getting electricity connection. The necessary
test report was filed on 12.11.1986 and the necessary charges had been deposited on 26.12.1984
but the necessary gate pass was not given. The complainant’s version that as regards demand of
bribe was not shaken or shattered in cross examination the same was fully corroborated by the
complaint filed on 2.12.1986. The evidence of Deputy Superintendent of Police, Anti Corruption
Bureau fully established the same as the High Court noted that the sanction order, pre trap
panchnama of the place of offence and gate passi were produced.
Referring to Section 4 of the Act the High Court held that the prosecution version was established
and, therefore, there was no merit in the appeal.
3. Learned counsel for the appellant submitted that the defence version was more probable.
This is a case where the complainant had not gone to the office of the accused to hand over the
money but the accused had gone at the shop of the complainant, this itself creates a doubt about
the version of the prosecution.
4. Learned counsel for the respondent-State supported the judgment.
5. It is of significance that in the complaint dated 2.12.1986 the complainant had
specifically stated that the accused shall be coming for handing over the gate pass and for taking
the money i.e. bribe amount on 3.12.1986 in the afternoon. Therefore, as rightly noted by the
High Court if really the complainant had issued any receipt or chit in respect of the cloth and had
told the accused to bring that chit or receipt, it is only after obtaining the said chit he would pay
amount of Rs.100/-. Then he would not have lodged the complaint because at that time he had no
idea as to what to do in the situation on 3.12.1986. Admittedly, when the post trap panchnama was
drawn the accused was present there. So also the panch witness Sayajirao was present. After
drawing the panchnama a copy of the same was immediately given to the accused. Not only that,
he made endorsement on the original panchnama for having received a copy. If really the accused
had handed over the receipt of the cloth to the complainant and accepted Rs.100/- as a price of the
lost cloth, he would have told panchas as well as to the police that that the receipt has been handed
over to him and the said fact be mentioned in the panchanama but this has not happened. There
was no mention about the accused having stated to have brought the chit of the cloth.
6. Section 4 of the Act reads as follows:
“Section 4. Presumption where public servant accepts gratification other than legal remuneration –
(1) Where in any trial of an offence punishable under Section 161 or section 165 of the
Indian Penal Code, or of an offence referred to in clause (a) or clause (b) of sub-sec. (1) of S.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.
(2) Where in any trail of an offence punishable under Section 165A of the Indian Penal Code or
under clause (ii) sub-section (3) of Section 5 of this Act, it is proved that any gratification 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 of the Indian Penal Code or, as the case may be,
without consideration or for a consideration which he knows to be inadequate.
(3) Notwithstanding anything contained in subsection (1) and (2), the Court may decline to draw
the presumption referred to in either of the said sub-section, if the gratification or thing, aforesaid
is, in its opinion, so trivial that no inference or corruption may fairly be drawn.”
7. In State of Assam v. Krishna Rao and Ors. (AIR 1973 SC 28) it was observed as
follows:
“Where it is proved that a gratification has been accepted the presumption under Section 4 of the
Prevention of Corruption 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. The words, “unless the contrary is
proved” mean that the presumption raised by Section 4 has to be rebutted by proof and not by bare
explanation which may be merely plausible. The required proof need not be such as is expected for
sustaining a criminal conviction, it needs only to establish a high degree of probability.”
8. The evidence on record has clearly established the accusations and the trial Court and
the High Court have rightly relied on the same.
9. In the instant case the occurrence took place on December 2, 1986. At that point of time
it cannot be said that the gratification was a trivial thing as referred to under Section 4.
10. Above being the position, there is no merit in this appeal which is accordingly
dismissed.
……………………………….J.
(Dr. ARIJIT PASAYAT)
…………………………………
J.
(HARJIT SINGH BEDI)
……………………………….J.
(ASOK KUMAR GANGULY)
New Delhi,
May 04, 2009