Full Judgment Text
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PETITIONER:
STATE OF ASSAM
Vs.
RESPONDENT:
KRISHNA RAO(With connected Appeal)
DATE OF JUDGMENT15/09/1972
BENCH:
DUA, I.D.
BENCH:
DUA, I.D.
KHANNA, HANS RAJ
CITATION:
1973 AIR 28 1973 SCR (2) 339
1973 SCC (3) 227
ACT:
Prevention of Corruption Act, (2 of 1947)-Section 4 (1)-
Presumption under-Ingredients to be satisfied for drawing
presumption.
HEADNOTE:
In order to raise the presumption under s.4(1) of the
prevention of Corruption Act what the prosecution has to
prove is that the accused person has received ’gratification
other than legal remuneration’ and when it is shown that he
has received a certain sum of money which was not a legal
remuneration, then, the condition prescribed by the section
is satisfied and the presumption thereunder must be raised.
To raise the presumption it is not necessary to show that
the receipt of the gratification was accepted as bribe. In
other words, the factum of receipt of money with a conscious
mind or guilty conscience is not necessary in order to bring
the case within the Purview of section 4. The word
’gratification’ in section 4(1) has to be given its literal
dictionary meaning of satisfaction of apetite or desire; it
could not be construed to mean money paid by way of a bribe.
The words ’unless the contrary is proved’ mean that the
presumption raised by section 4 has to be rebutted by proof
and not by explanation which may be merely plausible. The
required proof need not be such as is expected for
sustaining a criminal conviction; it need only establish a
high degree of probability. [252G-253C]
State of Madras v. Vaidianatha Iyer, [1958] S.C.R. 580;
Emden v. The, State of U.P., [1960] 2 S.C.R. 692; Dhavantrai
v. State of Maha. rashtra, A.I.R. 1964 S.C. 575; Jhangan v.
State of U.P., [1966] 3 S.C.R. 736 and S. N. Bose v. State
of Bihar, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 92 &
93 of 1970.
Appeals by special leave from the judgment and order dated
April 30, 1969 of the Assam & Nagaland High Court at Gauhati
in Cr. As. Nos. 61 & 62 of 1968.
G. L. Sanghi and R. N. Sachthey, for the appellant (in both
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the appeals).
A. S. R. Chari, Shiv Pujan Singh and R. Nagaratnam, for the
respondents. (in both the appeals).
The Judgment of the Court was delivered by
DUA, J. These two appeals by the State of Assam (Crl. A.
No. 92 of 1970 State of Assam vs. Krishna Rao and Crl. A.
No. 93 of 1970 State of Assam vs. M. D. Bajid) under Art.
136 of the Constitution are directed against the common
judgment of the Assam & Nagaland High Court dated April 30,
1969,allowing two appeals by the two respondents (Crl. A.
61 of 1968 M. D.
24 0
Bajid vs. State of Assam and Crl. A. 62 of 1968 V. Krishna
Rao vs. The State of Assam) against two separate judgments
of the Special Judge, Gauhati dated June 12, 1968 in two
separate trials. Though the High Court recorded a common
judgment, it dealt with the two cases separately. We also
propose to dispose of both the appeals by a common judgment.
The relevant facts giving rise to the, two cases, the
essential features of which are largely common, may now be
stated. Accused Krishna Rao was a Garrison Engineer, MES at
Jorhat and M. D. Bajid (appellant in the other case) was the
Assistant Garrison Engineer under him. During the term of
office of these two officers, it is alleged that Messrs
Barakar Engineering and Foundry Works, Calcutta were
contractors under the MES, Jorhat for supplying fabricated
building materials and for raising structures with that
material at the sites selected by the MES. The Chief Engi-
neer, Eastern Command, it is not disputed, is the person who
entered into the contract and after the contract was
accepted the accused Krishna Rao in the capacity of Garrison
Engineer was in overall charge of the execution of that
contract and NY. D. Bajid was his Assistant. According to
the terms of the contract the contractor was entitled to
receive 75% of the value of the goods supplied through
running account bills. These payments had to be be vetted
in the first instance by Bajid as Assistant Garrison Engi-
neer. For the goods already supplied two running bills were
submitted and the. payments under those bills were made upto
May 21, 1964. According to the prosecution case Krishna Rao
all the time kept harassing the contractor with the motive
of getting bribe and sometimes he expressed to the
contractor’s agent his desire in this respect. Even in
regard to the two bills which were duly paid some defects
were sought to be created by Krishna Rao after passing them.
The third bill duly submitted was delayed on various
objections with the object of extracting a bribe and
ultimately on August 12, 1964 Krishna Rao demanded a bribe
from C. L. Noronha, the Chief Administrative Officer, who
was also attorney of the contractor company. Noronha
informed the police who arranged a trap with the result that
on August 13, 1964 first Krishna Rao was caught accepting a
bribe of Rs. 10,000 from Noronha and thereafter Bajid was
caught when he received Rs. 5,000 as bribe from the same
individual in a similar manner. The prosecution story is
narrated by C. L. Noronha (P.W. 3), the man directly
concerned with the matter, S. P. Chaliha (P.W. 1) who was in
August, 1964 posted as Income-tax Officer, A Ward at
Jorhat, A. C. Barua (P.W. 2), Sub-Divisional Officer, Plan-
ning, at Jorhat and K. C. Kapur (P.W. 5), Dy.
Superintendent of Police, S.P.E., C.I.A.
C.L. Noronha (P.W. 3) has stated in his evidence how
Krishna Rao, accused, as Garrison Engineer tried to delay
the payment of
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the two R.A.R. (running account receipt) bills of the
contractor firm and conveyed to the witness the usual
expectation of the staff to get. 20%, of the bills by way of
commission. We do not consider it necessary to go into this
evidence in detail because, according to the Special Judge
trying the accused, there being a solitary statement of P.W.
3 in this respect it was not safe to rely oil it without
some corroboration assuring its trust-worthiness. According
to the trial court P.W. ’I claims to have informed his
company superiors about the demand of bribe by Shri Krishna
Rao on behalf of the MES staff but none of those superiors
appeared as witnesses. The demand and the delay in the
payment of R.A.R. bills with the motive of extorting bribe,
in the opinion of the Special Judge, was not true beyond
reasonable doubt. We would, therefore, concentrate on the
prosecution case regarding information of the demand of
bribe to the police and the trap laid for catching the two
accused persons.
According to Noronha, realising that Krishna Rao was persis-
tent in his demand of bribe and with that end in view who
obstructing clearance of the payment of their R.A.R. bills
he resolved to inform the police for necessary action. On
August 11, 1964 he accordingly went to the office of the
Superintendent of Police, S.P.W., Partk Street and narrated
his complaint to the S. P. Mr. Choudhury. The matter being
outside Mr. Choudhury’s jurisdiction he expressed his
inability to take its cognizance but as two officers.
Kapur, Dy. S. P. and his assistant Bishnoi happened to be
present in that office P.W. 3 was introduced to them. P.W.
3 thereupon filed his written complaint Ex. 1 with these
officers, Next day i.e., August 12, 1964 P.W. 3, along with
those two officers, went to Jorhat arriving there at about 1
or 2 p.m. P.W. 3 contacted Krishna Rao at about 3 p.m. when
the latter enquired if arrangements for complying with his
demand had been made. On P.W. 3 telling Rao that his demand
was too high Rao reduced his own demand to 3% of the bills
already paid though he expressed his inability to get any
guarantee on behalf of the rest of the staff. On rough
calculation the amount of his demand came to Rs. 14,000 but
the bargain was struck at Rs. 10,000 to be paid on the
following day. As P.W. 3 expressed hesitation in taking so
much money to Rao’s office the latter agreed to go to the
contractor’s office in the afternoon of August 13, 1964, to
collect the amount. On his way to Rao’s office P.W. 3 also
met the other accused Bajid. He too demanded his share of
commission at 3%. The amount acceptable to him was,
however, fixed at Rs. 5,000, as he represented that it was
his duty to prepare the R.A.R. and that he was also in
direct supervision of the contract work. He also agreed to
go to the contractor’s office the following day for
collecting the amount between 4 and 5 p.m.
2 42
P.W. 3 narrated to Kapur and Bishnoi all that happened
between him and Rao and between him and Bajid. At about 9-
30 or 10 a.m. on August 13, 1964 P.W. 3 contacted Kapur at
the residence of Deputy Commissioner, Jorhat and told him
that he would meet him at the Madras Coffee House at about
11-30 a.m. P.W. 3 then contacted Rao and Bajid and on
getting assurance about the preparation of the cheque on
account of the bill which was supposed to be for Rs. 90,000
confirmed the arrangement of paying the money demanded. Rao
was to come to the office of P.W. 3 at about 1-30 p.m. In
the Madras Coffee House P.W. 3 met Kapur, Bishnoi, who
introduced him to Chaliha, Income-tax Officer and Barua,
Sub-Divisional Officer. All of them then proceeded to the
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camp office of P.W. 3. This camp office consists of three
rooms, two of them being bed rooms and one office room. All
of them went to a bedroom where P.W. 3 narrated his plan.
This bedroom has three doors and three windows. One door
opens in the front verandah, one in the office room and the
third in the bath room from where there is an exit to the
rear verandah. The rear verandah is also connected with the
office room through a door. All the windows and the doors
had opaque curtains. The doors and windows opening to the
front verandah were closed and bolted from inside. Three
peep holes were made in the door connecting the bedroom with
the office room. A curtain was also hung on this door to
shut out light from inside. The table in the office room
was kept diagonal-wise placing the chairs on either side.
In the bedroom P.W. 3 was asked to produce the Government
currency notes. Kapur noted the numbers of these notes
which were of one hundred, rupee denomination. After P.W. 3
was searched the currency notes were besmeared with a white
powder (phenol-phalein powder) and instruction was given
that if anybody touched the notes, then, when his fingers
were dipped in water, that water would turn reddish. The
notes were given back to P.W. 3 with instructions that the
amount should be paid to Krishna Rao only on his demand.
P.W. 3 then went to the office adjoining the bedroom. At
about 1.40 p.m. Rao, accused, arrived in the office.
Thereafter what happened had better be stated in the words
of P.W. 3 himself,:
"I greeted him hello Mr. Krishna Rao, come in,
come in, as he took his seat I closed the
front door for privacy’s sake. Thereafter
told Mr.Krishna Rao Don’t you think your
demand is too much?’ He said ’3 Per cent is my
normal rate’. I told him ’will ten thousand
he O.K. as agreed ?’ He nodded his head in the
affirmative. I took out the bundle of notes
from my right hand pocket sitting with his
back near the door connecting the bed room.
He picked up the bundle of notes, fiddled with
the same for a while and kept the same in his
trousers right hand pocket. He then got up
and was
243
just walking towards the front verandah door.
I also stood up. By this time the raiding
party comprising Mr. Kapur, Mr. Chaliha, Mr.
Baruah and Mr. Bishnoi rushed into the, office
room. Mr. Kapur shouted I am D.S.P. of Police
and produced his identity card. Mr. Krishna
Rao turned round. Mr. Kapur asked Mr. Krishna
Rao to produce, the smeared money which he had
just received from me. Mr. Bishnoi caught
hold of the hand of Mr. Krishna Rao to search
him and Mr. Kapur searched the person of Mr.
V. Krishna Rao. From the right hand side of
the pant pocket of Shri Krishna Rao Mr. Kapur
took out the bundle of 100 rupee G.C. notes.
Some other loose currency notes and identity
card were also recovered from him."
Mr. K. C. Kapur, Dy. S.P.E. appeared as P.W. 5 and sub-
stantially corroborated the testimony of P.W. 3. The two
witnesses not connected with the police,, Chaliha, Income-
tax Officer and A. C. Barua, Sub-Divisional Officer,
Planning, appeared as P.W. 1 and P.W. 2 respectively. They
also fully corroborated in all material particulars the:
testimony of Noronha.
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Accused Krishna Rao in his statement under s. 342, Cr. P.C.
denying the allegation of his demand for bribe admitted his
presence in the office of the contractor at about 1-30 p.m.
on August 1,3, 1964. This is what he said :
"On 13-8-1964 just at about 1-30 p.m. I was
taken to the site office godown by Shri
Srivastava and Shri Chatterjee in their jeep
for inspection of stores. Earlier at 10-30
a.m. Shri Noronha had asked me to increase the
value of the R.A.R. to Rs. 1 lac. saying that
some stores are lying in his godown which had
not been accounted for in the 3rd R.A.R. and
that I could inspect it and then raise the
amount. To this I told that I should be
satisfied about the existence of the stores
before I could make addition and alteration in
the payment and in the R.A.R. and then he told
me that he would send Mr. Chatterjee and
Srivastava."
When questioned about his having picked up the bundle of
notes of Rs. 10,000 produced by Noronha and put by him in
his pocket, which were recovered by K. C. Kapur in the
presence of P.Ws. Chaliha, Barua, Bishnoi and Noronha, he
replied :
"It is not correct, the actual fact is when I
reached the camp Office along with Srivastava
and Chatterjee Noronha was standing an the
gate, he said that the stores are lying in the
backyard and he led me inside the house. When
I entered the office room he closed the front
door
244
and bolted it when he became angry on my
objection he told me that he would teach me a
lesson and he pushed something my right hand
pocket. Then Mr. Bishnoi came and Mr. Kapur
brought out the bundle from my pocket and I
could then know that it was a bundle of G.C.
Notes. I wanted to make a statement but
(illegible) did not hear it and did not record
it. Shri Chaliha and Shri Barua came later on
and with their help Shri Kapur prepared the
Memo."
Rao also said that he would file a written statement. In
his written statement he repeated what he had stated in
court under s. 342, Cr. P.C. and nothing new was added
therein.
Shanti Ratna Chakravarty was produced as defence witness No.
1. He was an Upper Division Clerk in C.W.E., Jorhat. Ac-
cording to him on August 13, 1964 during lunch interval he
saw Srivastava and Chatterjee with Rao coming out from the
G.E.’s office room. They all boarded a jeep and left that
place. After lunch he also saw Bajid going to Garrison
Engineer’s office. He then saw Chatterjee and Srivastava
coining out of the Office Of the Garrison Engineer. They
also got into the jeep and left. After Singh (D.W. 2) is a
Surveyor Assistant (1) in G.E. (Project’), Jorhat. He has
also deposed that on August 13 at about 1.50 p.m. Krishna
Rao left his office with Srivastava and Cahtterjee.
Chatterjee was at that time the sub-contractor under Messrs
Barakar Engineering Company and Srivstava was the Chief
Engineer of the said company. No reference was placed by
the accused on the evidence of J. A. James DW 2.
The learned Special Judge considered the two prosecution
witnesses, Chaliha and Barua, as independent witnesses
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having no animosity towards the accused persons. These
witnesses had both heard what had transpired between Noronha
and Rao and seen that money was passed by Noronha to accused
Rao who pocketed the same at once. They have also deposed
that when caught the accused became, dumb-founded and non-
plussed and there was no explanation from him.
An objection was also raised in the trial court about the
legality of the sanction to prosecute the two accused
persons but the court considered Ex. 40, read in the light
of the evidence of P.W. 4, to be proper sanction. Believing
the prosecution evidence the court convicted accused Rao and
sentenced to rigorous imprisonment for one year on each
count under s. 161. I.P.C. and s. 5 (2) read with s. 5 (1)
(d) of the Prevention of Corruption Act and also to fine of
Rs. 1,000 under s, 5(2) of the Prevention of Corruption Act
and with further rigorous imprisonment for three months in
case of default.
245
In so far as Bajid is concerned, it is in evidence that
after the trap of Krishna Rao, who was caught demanding and
accepting Rs. 10,000 from P.W. 3 as bribe, all the P.Ws went
back to the same bedroom. There P.W. 3 then narrated his
complaint against Bajid. It was, to the same effect as Ex.
1 which had been previously given to the Dy. S. P. After
narrating the facts before, Chaliha and Barua P.W. 3
produced Rs. 5,000 in Government currency notes of the
denomination of Rs. 100 each. Mr. Kapur took down the
numbers of the Government currency notes and then a memo was
signed of P.W. 3 and the other witnesses. After searching
the person of P.W. 3 the currency notes were handed over to
him by the Dy. S.P. with instruction that the same should
be paid to Bajid on his demand. The remaining version had
better be reproduced in the words of P.W. 3 himself :
"I had also informed the members of the
raiding party about the time that is about 4
O’clock when Mr. Bajid would be coining to, my
office to receive the amount. All these
functions were completed in the bedroom by
about 3-30 p.m. I was directed by Mr. Kapur to
take my seat in the adjoining office room and
wait for Mr. Bajid. Round about 4 O’clock Mr.
Bajid entered my room. along with my Chief
Engineer Shri Srivastava whom I asked to leave
us for a few minutes. Mr. Bajid tok his seat
on the chair facing the bedroom door in which
the peepholes had been made. As soon as Mr.
Srivastava left I closed the front door and
took my seat on the other chair with my back
to the bedroom door. At this time I told Mr.
Bajid I think you demand is too high. Mr.
Bajid told me 3 p.c. in all’ I told him, ’Are
you satisfied in 3 p.c. in all ?’ He said
’Yes, yes’. On this I took bundle of G.C.
notes from any right hand trouser pocket and
placed the same on the table before us. Mr.
Bajid took the bundle in his hand and put the
same in the right hand pocket of his pant.
Then I told him that ’you have now received
Rs. 5,000 how much more you want ?’ His reply
was ’Whatever is the balance’. I then said
’Are, you sure there would be no more trouble
?’ He said ’Yes, of course’. At this stage I
touched my bead with my band which was a
prearranged signal given to me by the Dy. S.
P. Immediately then the raiding party beaded
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by Mr. Kapur, Dy. S. P. rushed into the
office room. On this Mr. Kapur disclosed his
identity to Mr. Bajid and also that of the
witnesses with him. Mr. Kapur asked Mr. Bajid
(about) the bribe amount that he had taken
from me. Mr. Bajid was absolutely upset and
was thunder shock. He did not reply to the
Dy. S. P. but uttered the words ’Noronha
246
Saheb ne mujhko dhoka diya hai’. Mr. Bajid
had stood up from the chair and his person was
searched by Mr. Kapur, Dy. S.P. A bundle of
G.C. notes was recovered from the right hand
pocket of pant of Mr. Bajid by Mr. Kapur.
From his personal search certain other
currency notes and some papers were also re-
covered.
The number of the recovered G.C. notes were
checked by Mr. Chaliha and Mr. Baruah with the
numbers mentioned in Memo Ext. 2 and they
tallied. Thereafter Mr. Kapur drew up a
recovery list noting down the number of the
(illegible) list. During the course the, said
list was being prepared by Mr. Kapur, Mr.
Kapur asked him "Why he had taken this amount’
At this Mr. Bajid said ’Mujhko bachao deo’ Ex.
3 is that recovery list which bears my
signature also."
P.W. 3 was corroborated by the evidence of Kapur, Dy.
S.P. who appeared as P.W. 6 Dy. S. P. Chalia (PW 1) and A.
C. Baruah (PW 2). In his statement under s. 342, Cr. P.C.
Bajid denied any demand having been made by him for
commission at 3% from Noronha. In defence Shanti Ranjan
Chakravarty, Avtar Singh and J. A. James (D. Ws. 1, 2 and 3
respectively) were produced. The, first two witnesses
deposed to having seen Bajid going with Chatterjee between
2-30 and 3 p.m.
Bajid’s explanation for going to the contractor’s office, is
contained in answer to question No. 4. He said :
". . . . that at about 3 p.m. on 13-8-1964
when I was sitting with Avtar Singh S.A. (11)
in his room Mr. Chatteerjee of the M. B.
Industries Sub-Contractor of Barakar appeared
in the room and told me that Shri Rao wanted
me at site in connection with checking of the
stores. He also told me that he has brought
his vehicle a jeep and I might go along with
him."
In answer to question No. 7 he said :
"The fact is that as soon as 1 (?) entered the
room Mr. Noronha bolted the room from inside
and he pulled out something from his pant
pocket and pushed the same into my pant
pocket. I was non-plussed and asked him what
he was doing. At that very moment 3 persons
rushed inside the room from the backdoor of
the office room and one of them gave his
identity as Dy. S. P. Central Intelligence
Branch, stated loudly and induced me to keep
the hands up, be caught hold both of my hands
up finally and the bundle was pulled out from
247
my pocket, which I saw as G.C. notes. I
wanted to protest and wanted to say what had
happened earlier but they did not listen to
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me.".
In his written statement he said practically the same thing
as had been stated by him in court under s. 342, Cr. P.C.
with the only difference that in the written statement he
somewhat elaborated the details.
The trial court convicted Bajid as well holding the
prosecution version to have been fully established and
finding the explanation of the accused untrustworthy. Like
Rao he was also sentenced to rigorous imprisonment for one
year on each count under s. 161, 1. P.C. and under s. 5 (2)
read with s. 5 ( 1 ) (d) of the Prevention of Corruption
Act. He was also sentenced to fine of Rs. 500 with further
rigorous imprisonment for one month in case of default.
On two separate appeals, the High Court dealt with the cases
of the two accused separately though by means of a common
judgment. The learned single Judge of the High Court at the
outset referred to the English decision in Brannan v.
Peek(1) and to the decision of this Court in Rao S. B. Singh
& Anr. v. State of Vindhya Pradesh (2 ) and observed that in
trap cases the matter has to be looked into with great
circumspection. In the light of this observation the High
Court said that Noronhag evidence required corroboration by
some independent witnesses. As the prosecution claimed
Chaliha and Barua to be independent witnesses and the High
Court also felt that they were high-ranking Government
officers whose evidence could not be brushed aside except
for cogent reasons, the learned single Judge discussed the
pros and cons as to whether these witnesses could actually
see the alleged acceptance of the bribe and hear the
conversation between Noronha and the accused relating to the
bribe in question. After referring to the evidence with
regard to the peepholes the High Court felt some doubts
about the boring of peepholes prior to the occurrence as
alleged. In entertaining the doubt in the matter of
peephole-, the High Court was principally influenced by the
following factors
(1)In Ex. 2, the memorandum drawn up after
the rehearsal regarding the currency notes,
which had been treated with phenolphalein
powder, there was no reference to the
peepholes having been bored though, according
to the witnesses, that had been done before
drawing up the memorandum;
(1) [1947] 2 All E.R. 572. (2) [1954] S.C.R. 1098.
248
(2) the size of the peepholes was differently
given by different witnesses;
(3)the version by the witnesses did not
tally as to who had prepared how many
peepholes and with what instruments;
(4)the nail and the hammer which were said
to have been used for boring the peepholes
were not seized by the police and were,
therefore, not exhibited; and (5) though P. W.
9 had stated that the doors in which peepholes
were bored were made of tin, according to K.
C. Kapur, Dy. S.P. (P.W. 5) they were made of
plywood.
The High Court also entertained some doubt about the version
that Chaliha could with one eye peep. through the lower hole
of small dimension and see the entire transaction. These
circumstances, broadly speaking, weighed With the High Court
in entertaining reasonable doubt as to whether the peepholes
had at all been bored before the incident and this,
according to the Court. also reflected or the
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trustworthiness of the two independent witnesses who were
highly placed Government officials. While expressing this
doubt the High Court added that it was improper to take the
help of Government servants in such matters. Being
interested in the success of the trap these witnesses, in
the High Court’s view, could not be considered to be so
independent as to be uninfluenced by a desire to secure from
the court conviction on the basis of their evidence. The
High Court further entertained reasonable doubt whether
Chaliha and Barua could have heard the conversation between
Noronha and Rao. The High Court further felt that there was
no corroborative evidence regarding assurance of payment of
bribe in regard to the payment (-If the second R.A.R.
Indeed. the High Court did not feel impressed by the
evidence that the payment of the bills was delayed with the
object of getting bribe. The delay of three months in
making payment was due to red-tapism and it could not be
fixed on Rao. The evidence of Chaliha and Barua was thus
not believed regarding the actual factum of the acceptance
of illegal gratification. In regard to the question whether
the money was thrust into the pocket of accused because of
Noronha’s grievance against him, the High Court observed
that there being no independent corroboration of the
acceptance of the bribe the mere possession and recovery of
the Government currency notes by the raiding party from the
person of Rao was not sufficient to show that this was the
money which had been received by him within the meaning of
s. 161, I.P.C. On this point Noronha’s statement was
considered to be insufficient to warrant a conviction in the
absence of corroboration by Chaliha and Barua whose evidence
was not fully believed by the High Court.
249
In regard to the defence evidence the High Court felt that
the defence version could not be ruled out because the
prosecution had not led any evidence to show as to, by which
vehicle Rao had come to the place of occurrence. The High
Court also criticised Noronha’s failure to inform his
superior officers about Rao’s conduct. Finally, the
omission of the prosecution to dip Rao’s hands in water to
see whether it had changed its colour on account of the
application of phenolphalein powder was also considered by
the High Court to be a highly important circumstance
rendering the prosecution version unacceptable. For all
these reasons the High Court acquitted Rao.
Bajid was also acquitted, broadly speaking, for similar
reasons. with the additional circumstances (i) that
according to Chaliha’s statement he had not seen from the
peepholes whether Bajid had received the money and (ii) that
the copies of depositions of witnesses in Rao’s case had not
been supplied to Bajid for facilitating their cross-
examination and this, according to the High Court, had
prejudiced Bajid to a great extent in the matter of his
defence. The entire trial of Bajid was for this reason
considered to be tainted with illegality, but the High Court
did not feel that it would be in the interest of justice at
such late stage to consider the question of remanding the
case for retrial, adding that when on consideration of the
evidence, it had not been proved that Bajid had accepted or
obtained or agreed to accept or demand an), gratification,
the- question of the accused proving to the contrary in his
defence did not arise. The High Court further expressed its
opinion that Bajid had been decoyed to the place of
occurrence and. therefore, the defence version, which was
similar to that of Rao’s was held to be highly probable.
The High Court thus. though accepting the story of recovery
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of Currency notes from the possession of both the accused
persons acquitted them, broadly, for the reasons just
stated.
Before us on behalf of the State of Assam it has been
strongly contended that the prosecution evidence with regard
to the existence of the peoples and the eye-witnesses having
seen tile actual passing of money through them is
trustworthy and should be accepted. This direct evidence,
it is argued, has been wrongly brushed aside, on the ground
of omission to carry out the phenophthalein test in the case
of Rao which, in view of direct evidence of passing of
money, was wholly immaterial and on account of
inconsequential circumstances in the case of Bajid. The
High Court, it is contended, has erred seriously in
discrediting the testimony with regards to for peepholes for
reasons which are too slender to bear scrutiny and also by
ignoring considerations of vital importance. When once this
conclusion of the High Court is reversed the case for the
prosecution, according to the appellant’s
250
learned counsel, becomes irrefutable. In any event when the
evidence of the recovery of money from the pockets of the
pants of both the accused persons has been accepted and
upheld by both the courts, then, by virtue of s. 4 of the
Prevention of Corruption Act the Courts were legally obliged
to raise the presumption that the two accused had accepted
or obtained or agreed to accept or attempted to obtain that
money as a motive or reward such as is mentioned in S. 161,
I.P.C. unless the contrary was proved. The High Court,
according to the appellant’s submission, has wrongly
declined to raise this presumption on the ground that the
factum of receipt of money with a conscious mind or guilty
conscience is necessary in order to bring the case within
the purview of S. 4. The counsel invited our attention to
the following observations of the High Court which,
according to his submission bring out the legal infirmity in
its approach:-
"The factum of recovery cannot, however, be
disputed but in my opinion such recovery must
be the result of receipt of the money and with
a guilty conscience. The recovery by itself
does not fulfil the conditions of the
aforesaid sections. Although it may be one of
the strong circumstances towards the guilt of
the accused, demand and acceptance of bribe
not being proved beyond reasonable doubt, the
factum of recovery alone will not establish
the guilt under these sections."
While dealing with the case against Bajid also the High
Court observed :
"The words ’unless the contrary is proved’
occurring in section 4(1) of the Prevention of
Corruption Act makes it clear that the
presumption has to be rebutted by proof and
not by a bare explanation which is merely
plausible. Before that it has to be shown by
the prosecution that the ingredients of
offence under section 161 of the Indian Penal
Code and section 5 ( 1 ) (d) of the Prevention
of Corruption Act have been proved by the
prosecution. The plain meaning of section
4(1) of the Prevention of Corruption Act is
that when the offence under the said section
is proved, a presumption is that a valuable
thing has been received by the accused. This
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being the position in law, it has got to be
seen whether the, accused Bajid received
gratification with a conscious mind. As
regards this, I have already said that corro-
boration of a partisan witness is lacking in
this case also. Furthermore if the evidence
of Sri Noronha is rejected as uncorroborated
by evidence in record the mere fact that the
money was recovered from Bajid cannot by
itself be treated as acceptance within the
251
meaning of section 161, Indian Penal Code,
although it is a very strong circumstance
towards proof of guilt. Furthermore the
factum of acceptance with a conscious mind
must also require to be proved by the
prosecution. In this view of the matter I am
of opinion that recovery has been proved but
as the ingredients of offence under section
161, Indian Penal Code have not been
satisfied, namely that the accused received
the money with a conscious mind, no offence is
said to have been satisfied, namely that the
accused received the money with a conscious
mind, no offence is said to have been
committed."
In our opinion, there is merit in the appellant’s contention
that the High Court has taken an erroneous view of s. 4 of
the Prevention of Corruption Act. That section reads :
"Presumption where public servant accepts
gratification other than legal remuneration
4 (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-section (1) of section 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 trial of an offence
punishable under section 165A of the Indian
Penal Code or under clause (ii) of sub-section
(3) of section 5 of this Act, it is proved
that any gratification other than legal remu-
neration) 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
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consideration or for a consideration which he
knows to be inadequate.
252
(3) Notwithstanding anything contained in
sub-section (1) and (2) the court may decline
to draw the presumption referred to in either
of the said sub-sections, if the
gratificationor thing aforesaid is, in its
opinion, so trivial that no reference of
corrption may fairly be drawn."
In State of Madras v. A. Vaidianatha Iyer(1) after reproduc-
ting the relevant provisions of S. 4 of the Prevention of
Corruption Act this Court observed that where it is proved
that a gratification has been accepted, the presumption
under S. 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 S. 4. In
the reported case this Court allowed the appeal of the State
of Madras and setting aside the impugned order of acquittal
passed by the High Court restored that of the Special Judge
convicting the respondent there. In C. 1. Emden v. The
State of U.P. (2) the appellant, who was working as a loco
foreman was found to have accepted a sum of Rs. 375 from a
railway contractor. The appellant’s explanation was that he
bad borrowed the amount as he was in need of money for
meeting the expenses of the clothing of his children who
were studying in school. The Special Judge accepted the
evidence of the contractor and held that the money had been
taken as a bribe, that the defence story was improbable and
untrue, that the presumption under s. 4 of the Prevention of
Corruption Act had to be raised and that the presumption had
not been rebutted by the appellant and accordingly convicted
him under s. 161, I.P.C. and s. 5 of the Prevention of
Corruption Act, 1947. On appeal the High Court held that on
the facts of. that case the statutory presumption, under S.
4 had to, be raised, that the explanation offered by the
appellant was improbable and palpably unreasonable and that
the presumption had not been rebutted, and upheld the con-
viction. The appellant contended, on appeal in this Court,
inter alia, (i) that the presumption under s. 4 could not be
raised merely on proof of acceptance of money but it had
further to be proved that the money was accepted as a bribe,
(ii) that even if the presumption arose it was rebutted when
the appellant offered a reasonably probable explanation.
This Court, dealing with the presumption under S. 4,
observed that such presumption arose when it was shown that
the accused bad received the stated amount and that the said
amount was not legal remuneration. The word ’gratification’
in s. 4 (1 ) was to be given its literal dictionary meaning
of satisfaction of appetite or desire; it could not be
construed to mean money paid by way of bribe. The High
Court was justified in raising the presumption against the
appellant as it was admitted that he had received the money
from the contractor and the amount
(1) [1958] S.C.R. 580.
(2) [1960] 2 S.C.R. 592.
253
received was other than legal remuneration. On the facts
the explanation given by the accused in agreement with the
opinion of the High Court was held to be wholly
unsatisfactory and unreasonable. In Dhanvantrai v. State of
Maharashtra(1) it was observed that in order to raise the
presumption under S. 4(1) of Prevention of Corruption Act
what the prosecution has to prove is that the accused person
has received ’gratification other than legal, remuneration’
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and when it is shown that he has received a certain sum of
money which was not a legal remuneration, then, the,
condition prescribed by this section is satisfied and the
presumption thereunder must be raised. In Jhangan v. State
of U.P.(2) the above decisions were approved and it was
observed that mere receipt of money is sufficient to raise
the presumption under s. 4 (1) of’ the Prevention of
Corruption Act.
Recently in S. N. Bose v. State of Bihar(3) this Court
reviewed the case law on the point and observed :
"We next take up the question as to the scope
of s. 4 of the Prevention of Corruption Act.
As mentioned earlier, the appellant admits the
fact that he received a sum of Rs. 5 from P.W.
4 on March 14, 1964. Once that fact is
admitted by him, the court has to presume
unless the contrary is proved by the appellant
that he accepted the sum in question as a
motive or reward for issuing the fit
certificate. Mr. Mookherjea’s contention was
that the presumption in question does not
arise unless the prosecution proves that the
amount in question was paid as a bribe. He
urged that the presumption under s. 4 arises
only when the prosecution proves that the
appellant had received ’any gratification
(other than legal remuneration) or any
valuable thing from any person’. He laid
stress on the word ’gratification’ and
according to him the word ’gratification’ can
only mean something that is given as a corrupt
reward. If this contention of Mr. Mookherjea
is correct then the presumption in question
would become absolutely useless. It is not
necessary to go into this question in any
great detail as the question is no more res
integra. In C. 1. Emden v. State of U.P.
(supra) this Court held that the ’presumption
under s. 4 arose when it was shown that the
accused had received the stated amount and
that the said amount was not legal
remuneration. The word ’gratification’ in s.
4(1) was given its literal dictionary meaning
of satisfaction of appetite or desire; it
could not be construed to mean money paid by
way of a bribe."
(1) A.I.R. 1964 Sc. 5J5. (2) [1966] 3 S.C.R. 736.
254
The Court then set out a passage from Emden (supra) which
was followed in D. V. Desai (supra) and Jhangan (supra).
The Court then dealt with the question of the onus on the
accused for proving the contrary and observed that,
according to the well-settled view of this Court, the words
"unless the contrary is proved" mean that the presumption
raised by S. 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 need only establish a high degree
of probability.
In view of these decisions if moneys were recovered front
the pockets of the two accused persons which were not their
legal remuneration then on the material on the record there
can be no further question of showing that these moneys had
been consciously received by them, because the defence
version that these moneys had been thrust into their pockets
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is, on the face of it, wholly unsatisfactory and
unreasonable, if not flimsy. It is noteworthy that the High
Court only concentrated on the defence version relating to
the vehicle in which the accused persons claimed to have
been brought to Noronha’s office, it did not disbelieve the
prosecution story about the behaviour of the accused persons
when they were accosted by the witnesses of the raid party
in the office room and moneys were recovered from the
pockets of their pants. It is somewhat surprising that the
High Court should not have cared to deal with this most
important aspect without which the trial court’s judgment
could not logically be reversed. The High Court was also
not quite accurate in observing that Chaliha had not seen
from the peepholes whether Bajid had received the money.
Chaliha had said in his examination-in-chief: "then Mr.
Bajid took the money and put the money in the right hand
side of his pant pocket." In cross-examination all that was
elicited was "In this case I did not see the money actually
going inside the trouser pocket of Mr. Bajid." Quite
clearly, the High Court was somewhat inaccurate in deducing
from these statements that Chaliha had not seen from the
peepholes whether Bajid had received money. Once the
defence version, that moneys were thrust into the pockets of
the pants of the two accused persons (which is suggestive of
the innocence ’and ignorance of what had been thrust into
their pockets) is held to be improbable, as in our view it
must be so held, then, the judgment of the High Court has to
be reversed and that of the trial court restored, subject of
course to the decision on the argument that the trial of
Bajid was vitiated on account of the infirmity noticed by
the High Court.
The High Court seems to us also to have lost sight of the
fact that the raid party had on each occasion reached
Noronha’s office
255
room soon after the moneys had found their way into the
respective pockets of the pants of the accused persons, in
Krishna Rao’s pocket earlier and in Bajid’s pocket a couple
of hours latter’ Unless the members of the raid party had
witnessed the passing of money from somewhere (and it is
noteworthy that the front door of the office room was
closed) it is not understood how they could manage on both
the occasions to go into the office room soon after the
receipt of the money by the two accused persons, by Rao at
about 1.40 p.m. and by Bajid at about 4 p.m. They
undoubtedly reached the room before the accused persons with
money in their pockets could go out of it. It is nobody’s
case that the two accused persons were prevented from going
out or were otherwise detained in the office room till the
witnesses arrived. The witnesses must obviously have been
in a position to see when the money was passed on to the
accused persons. In this background, particularly when
there is no suggestion that there was any one who went from
the office room to inform the raid party that the moneys had
found their way into the pockets of the accused persons, the
minor discrepancies with respect to the size or the height
of the peepholes from where three different persons tried to
peep and see what was happening in the office or, omission
on the part of the prosecution to show how the accused per-
sons came to Noronha’s office, become wholly
inconsequential. These are details which, unless the
witnesses are tutored, do ordinarily must vary in minor
particulars, and, in the normal course of things, are found
generally to be stated differently by different observers.
In our view, strictly speaking, these differences or
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variations are indications of the truth rather than of
falsehood of the version given by the prosecution witnesses.
We may now turn to the question whether omission to supply
to Bajid copies of the statements made by the witnesses in
Rao’s case has prejudiced Bajid’s defence. We have not been
shown any law under which Bajid was entitled to get copies
of those statements. The trials were separate. It was open
to Bajid to inspect the record of Rao’s case, if necessary
with the permission of the court, and copy out those
statements or secure certified copies in accordance with law
and use them, if necessary, in cross-examination of those
witnesses who also appeared against him. There is no
question of any violation of any provision of
2 5 6
law, or of any settled principle with the result that, in
our opinion’, the High Court was wrong in holding Bajid’s
defence to have been prejudiced by the omission on the part
of the. prosecution to supply to him copies of statements of
prosecution witnesses in Rao’s case.
For the foregoing reasons, in our opinion, these appeals
must succeed and allowing the same we set aside the judgment
of the High Court and restore those of the Special Judge.
The respondents, if on bail, must surrender to their bail
bonds to serve out their sentences.
K.B.N. Appeals allowed.
257