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
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]
(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
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.
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.
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
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
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