Full Judgment Text
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CASE NO.:
Appeal (crl.) 719 1995
PETITIONER:
N. NARSINGA RAO
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH
DATE OF JUDGMENT: 12/12/2000
BENCH:
U.C.Banerjee, R.P.Sethi
JUDGMENT:
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J U D G M E N T
THOMAS, J.
Can a legal presumption be based on a factual
presumption? The latter is discretionary whereas the former
is compulsory. Such a question arose in this appeal and in
view of the importance of the issue a two-Judge Bench has
referred this case to be heard by a larger bench. The legal
presumption envisaged in Section 20 of the Prevention of
Corruption Act 1988 (for short the Act) is that on proof
of certain fact the court shall presume certain other
fact. When there is no direct evidence for establishing the
primary fact the court has to depend upon the process of
inference drawn from other facts to reach the said primary
fact. The crux of the question involved, therefore, is
whether an inference thus made could be used as a premise
for the compulsory presumption envisaged in Section 20 of
the Act.
The aforesaid question arose from the following
assortment of facts. Appellant was manager of a Milk@@
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Chilling Centre attached to Andhra Pradesh Dairy Development
Co-operative Federation. He is alleged to have received
bribe money of Rs.500/- from a milk-transporting contractor
(PW1-Satya Prasad). He was caught red handed on 20.4.1989
in a trap arranged by the officials of the Anti Corruption
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Bureau (ACB). They charge-sheeted him before a Special
Court for offences under Sections 7 and 13(2) read with
Section 13(1)(d) of the Act. After trial the Special Judge
convicted him and sentenced him to rigorous imprisonment for
two years and a fine of Rs.2000/- under each of the above
counts. The High Court of Andhra Pradesh confirmed the
conviction but reduced the sentence of imprisonment to a
period of one year. This appeal is in challenge of the said
conviction and sentence.
A summary of the allegations made against the
appellant are thess: PW1-Satya Prasad was to get some
amount from Andhra Pradesh Dairy Development Corporation for
transporting milk to or from the Milk Chilling Centre at
Luxettipet (Adilabad district). He approached the appellant
for taking prompt steps so as to enable him to get the money
disbursed. But appellant demanded Rs.500/- for sending the
recommendation in favour of payment of the amount due to
PW1. As the appellant persisted with his demand PW1 yielded
to the same, but before handing over the money to the
appellant PW1 lodged a complaint (Ex.P2) with the DSP of
Anti Corruption Bureau. On the basis of the said complaint
PW7 (DSP) registered Ex.P18 FIR and then made all
arrangements for a trap to catch the corrupt public servant
red handed.
On 24.4.1984 PW1 brought the currency notes to the
office of the ACB for making up the demanded bribe amount.
The said currency notes were treated with phenolphthalein
powder by or at the direction of PW7 as preparation for the
trap. PW1 and the already arranged witness PW2 together
went to the house of the appellant by about noon. When
appellant asked whether the amount was brought PW1 handed
over the phenolphthalein smeared currency notes to the
appellant. He accepted the amount and put the currency
notes in his pocket. Thereupon, a pre-scheduled signal was
transmitted to the members of the ACB team who were waiting
outside. They suddenly rushed to the place where the
appellant was then standing, caught the appellant red-handed
and the tainted currency notes were recovered from his
pocket. All the usual follow up steps were thereafter
adopted by the ACB team and on completion of the
investigation the case was charge- sheeted against the
appellant.
It took four years thereafter for the Special Judge to
commence evidence taking for the prosecution. The said long
interval, perhaps, helped the appellant as is reflected from
the fact that PW1 and PW2 made a volte-face in the trial
court and they denied having paid any bribery to the
appellant and also denied that appellant demanded the bribe
amount. PW1 said, for the first time, that he acted at the
behest of one Dr. Krishna Rao and went to the office of the
appellant and did everything as directed by the said Krishna
Rao. Both the witnesses were declared hostile by the Public
Prosecutor and both were cross-examined in detail. After
examining the remaining witnesses for prosecution the
appellant was called upon to answer questions put to him
under Section 313 of the Code of Criminal Procedure (for
short the Code). He then submitted a written statement in
which he said that Dr. Krishna Rao bore grudge against him
and that person orchestrated this false trap against him by
employing PW1 and PW2. According to the appellant, the
tainted currency notes were forcibly stuffed into his
pocket. He examined two witnesses on the defence side and
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both of them said that on the dates when the alleged demand
was made by the appellant he was on tour at a different
place.
Both the trial court and the High Court disbelieved
the defence evidence in toto and found that PW1 and PW2 were
won over by the appellant and that is why they turned
against their own version recorded by the investigating
officer and subsequently by a magistrate under Section 164
of the Code. The Special Judge ordered those two witnesses
to be prosecuted for perjury and the said course suggested
by the trial judge found approval from the High Court also.
In the appeal the High Court dealt with the contention
that it is not possible to draw any presumption against the
delinquent public servant in the absence of direct evidence
to show that the public servant demanded bribery and that
the same was paid to him. Learned single judge of the High
Court observed thus on that aspect: It is true that there
is no direct evidence in this case that the accused demanded
and accepted the money. But the rest of the evidence and
the circumstances are sufficient to establish that the
accused had accepted the amount and that gives rise to a
presumption under section 20 of the Prevention of Corruption
Act that he accepted the same as illegal gratification,
particularly so when the defence theory put forth is not
accepted.
Mr. L. Nageswara Rao, learned counsel for the
appellant, adopted a twin contention. First is that the@@
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presumption under Section 20 of the Act could be drawn only
when the prosecution succeeded in establishing with direct
evidence that the delinquent public servant accepted or
obtained gratification. That premise cannot depend on an
inference for affording foundation for the legal presumption
envisaged in Section 20 of the Act, according to the learned
counsel. The second limb of his contention is that it is
not enough that some currency notes were handed over to the
public servant to make it acceptance of gratification.
Prosecution has a further duty to prove that what was paid
amounted to gratification, contended the counsel.
In support of the first contention, learned counsel
relied on the decision of a two judge bench of this court in
Sita Ram vs. State of Rajasthan {1975 (2) SCC 227}. It was
held by the bench that on mere recovery of certain money
from the person of an accused without the proof of its
payment by or on behalf of some person to whom official
favour was to be shown the presumption cannot arise.
The said observation was made in the background of a
finding made by the High Court in that case that the
evidence of the witnesses was not reliable and particularly
because so many jerks and jolts seem to have been given to
the prosecution case by contradictory and hostile statements
of the witnesses that a good part of it had to be rejected
by the High Court. That decision and the observation could
thus confine to the facts of that case, and no legal
principle for future application could be discerned
therefrom.
Learned counsel then relied on another decision of a
two judge bench of this court in Suraj Mal vs. State (Delhi
Administration) {1979 (2) SCC 725} wherein the bench
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observed that in our opinion, mere recovery of money
divorced from the circumstances under which it is paid is
not sufficient to convict the accused when the substantive
evidence in the case is not reliable. In that case also the
said finding depended upon the veracity of the testimony of
the witnesses. But the contention raised by the learned
counsel in this case on the point convassed by him cannot
find any support from the said decision either.
While adverting to the first contention of the learned
counsel we may reproduce Section 20(1) of the Act. [That
sub- section is virtually the same as Section 4(1) of the
predecessor Act of 1947]. 20(1) Presumption where public
servant accepts gratification other than legal remuneration.
-(1) Where, in any trial of an offence punishable under
section 7 or section 11 or clause (a) or clause (b) of
sub-section (1) of section 13 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 section 7 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 in Section 4 of 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 20(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 terrorum 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 20 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. The word proof need be understood in the
sense in which it is defined in the Evidence Act because
proof depends upon the admissibility of evidence. A fact is
said to be proved when, after considering the matters before
it, the court either believes it to exist, or consider its
existence so probable that a prudent man ought, under the
circumstances of the particular case, to act upon the
supposition that it exists. This is the definition given
for the word proved in the Evidence Act. What is required
is production of such materials on which the court can
reasonably act to reach the supposition that a fact exists.
Proof of the fact depends upon the degree of probability of
its having existed. The standard required for reaching the
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supposition is that of a prudent man acting in any important
matter concerning him. Fletcher Moulton L.J. in Hawkins
vs. Powells Tillery Steam Coal Company, Ltd. [1911 (1)
K.B. 988] observed like this: 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@@
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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-Ã -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 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 vs. State
of Maharashtra [1998 (7) SCC 337]. A presumption can be
drawn only from facts - and not from other presumptions 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 appellants
pocket contained phenolphthalein smeared currency notes for
Rs.500/- when he was searched by PW-7 DSP of the Anti
Corruption Bureau. That by itself may not or need not
necessarily lead to a presumption that he accepted that
amount from somebody else because there is a possibility of
somebody else either stuffing those currency notes into his
pocket or stealthily inserting the same therein. But the
other circumstances which have been proved in this case and
those preceding and succeeding the searching out of the
tainted currency notes, are relevant and useful to help the
court to draw a factual presumption that appellant had
willingly received the currency notes.
PW-7 DSP said that PW-1 approached him on the previous
day and lodged Ext.P-2 complaint stating that appellant was
persistently demanding Rs.500/- from him. The currency
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notes were actually prepared by PW-7 by smearing them with
phenolphthalein powder. When appellant was caught red
handed with those currency notes he never demurred to PW-7
that those notes were not received by him. In fact, the
story that such currency notes were stuffed into his pocket
was concocted by the appellant only after lapse of a period
of 4 years and that too when appellant faced the trial in
the court. From those proved facts the court can
legitimately draw a presumption that appellant received or
accepted the said currency notes on his own volition. Of
course, the said presumption is not an inviolable one, as
the appellant could rebut it either through
cross-examination of the witnesses cited against him or by
adducing reliable evidence. But if the appellant fails to
disprove the presumption the same would stick and then it
can be held by the court that the prosecution has proved
that appellant received the said a mount. In Raghubir Singh
vs. State of Haryana [1974 (4) SCC 560] V.R. Krishna Iyer,
J, speaking for a three Judge Bench, observed that the very
fact of an Assistant Station Master being in possession of
the marked currency notes against an allegation that he
demanded and received that amount is res ipsa loquitur.
In this context the decision of a two Judge Bench of this
Court (R.S. Sarkaria and O. Chinnappa Reddy, JJ) in Hazari
Lal vs. Delhi (Delhi Administration) [1980 (2) SCC 390] can
usefully be referred to. A police constable was convicted
under Section 5(2) of the Prevention of Corruption Act,
1947, on the allegation that he demanded and received
Rs.60/- from one Sriram who was examined as PW-3 in that
case. In the trial court PW-3 resiled from his previous
statement and was declared hostile by the prosecution. The
official witnesses including PW-8 have spoken to the
prosecution version. The court found that phenolphthalein
smeared currency notes were recovered from the pocket of the
police constable. A contention was raised in the said case
that in the absence of direct evidence to show that the
police constable demanded or accepted bribery no presumption
under Section 4 of the Act of 1947 could be drawn merely on
the strength of recovery of the marked currency notes from
the said police constable. Dealing with the said contention
Chinnappa Reddy, J. (who spoke for the two Judge Bench)
observed as follows: It is not necessary that the passing
of money should be proved by direct evidence. It may also
be proved by circumstantial evidence. The events which
followed in quick succession in the present case lead to the
only inference that the money was obtained by the accused
from PW3. Under Section 114 of the Evidence Act the court
may presume the existence of any fact which it thinks likely
to have happened, regard being had to the common course of
natural events, human conduct and public and private
business, in their relation to facts of the particular case.
One of the illustrations to Section 114 of the Evidence Act
is that the court may presume that a person who is in
possession of the stolen goods soon after the theft, is
either the chief or has received the goods knowing them to
be stolen, unless he can account for his possession. So
too, in the f acts and circumstances of the present case the
court may presume that the accused who took out the currency
notes from his pocket and flung them across the wall had
obtained them from PW3, who a few minutes earlier was shown
to have been in possession of the notes. Once we arrive at
the finding that the accused had obtained the money from
PW3, the presumption under Section 4(1) of the Prevention of
Corruption Act is immediately attracted. The presumption is
of course rebuttable but in the present case there is no
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material to rebut the presumption. The accused was,
therefore, rightly convicted by the courts below. The
aforesaid observation is in consonance with the line of
approach which we have adopted now. We may say with great
respect to the learned Judges of the two Judge Bench that
the legal principle on this aspect has been correctly
propounded therein.
Regarding the second limb of the contention advanced
by Shri Nageshwar Rao, learned counsel for the appellant
(that it was not gratification which the appellant has
received) we think it is not necessary to deal with the
matter in detail because in a recent decision rendered by us
the said aspect has been dealt with at length. [Vide
Madhukar Bhaskarrao Joshi vs. State of Maharashtra, JT 2000
(supple.2) SC 458]. The following statement made by us in
the said decision would be the answer to the aforesaid
contention raised by the learned counsel: 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
the 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.
We, therefore, agree with the finding of the trial
court as well as the High Court that prosecution has proved
that appellant has received gratification from PW1. In such
a situation the court is under a legal compulsion to draw
the legal presumption that such gratification was accepted
as a reward for doing the public duty. Of course, the
appellant made a serious endeavour to rebut the said
presumption through two modes. One is to make PW1 and PW2
speak to the version of the appellant and the other is by
examining two witnesses on the defence side. True PW1 and
PW2 obliged the appellant. The two defence witnesses gave
evidence to the effect that the appellant was not present at
the station on the date when the alleged demand was made by
PW1. But the trial court and the High Court have held their
evidence unreliable and such a finding is supported by sound
and formidable reasoning. The concurrent finding made by
the two courts does not require any interference by this
Court.
In the result we dismiss this appeal.
[ K.T. Thomas ]