of Andhra Pradesh Vs. C. Uma Maheswara Rao & Anr
 Insc 213 (31
Raju & Arijit Pasayat Arijit Pasayat,J
of Andhra Pradesh questions legality of the judgment rendered by a learned
Single Judge of the Andhra Pradesh High Court directing acquittal of the
respondents who were accused nos. 1 and 2 respectively before the Trial Court
i.e. Special Judge, CBI, Visakhapatnam. The respondents faced trial for alleged
commission of offences punishable under Sections 7 and 13 of the Prevention of
Corruption Act, 1988 (in short the 'Act'). The Trial Court found each to be
guilty and sentenced to undergo two years RI and to pay a fine of Rs.1000/-
with default stipulation. They were also convicted under Section 120B of the
Indian Penal Code, 1860 (for short the 'IPC'), sentenced to similar custodial
punishment and to pay a fine of Rs.2000/-.
appeal the conviction and sentence were set aside.
position as highlighted by the prosecution is as follows:
Maheswara Rao (A-1) was working as Deputy Secretary of Visakhapatnam Port Trust
and D. Satyananda Reddy (A-2) was working as Deputy Financial Adviser and Chief
Accounts Officer of Visakhapatnam Port Trust G.
(PW-1) was the General Power of Attorney holder of M/s Ramesh Chandra &
Company. Both the accused were members of Tender Opening Committee and were
associated with the processing of tender file No.C1/BG/Sleepers/Risk/91. The
file dealt with placement of purchase order for Assam Salwood Sleepers during
the period from September, 1991 to December, 1991. Aforesaid Ramesh Chandra
& Company through its power of Attorney holder (PW-1) submitted their
quotation at Rs.828/- per sleeper and the total tender value was Rs.1,33,84,702.80.
A-1 phoned to PW-1 on 28.12.1991 at about 11.00 a.m. and asked him to meet him
in the evening at his residence for discussions with regard to tender matter
and PW-1 went to his house at 8.30 p.m. on the same day and A-2 was also
present there. Both the accused, who were Public Servants, during the
discussion informed PW-1 that there were many complications in the tender file
and demanded Rs.20,000/- each to be paid as bribe to clear the file in favour
of M/s. Ramesh Chandra & Co.
also told him that they would not clear the file, if he fails to meet the said
demand and when PW-1 expressed his financial constraints, they said that they
should be paid Rs.5,000/- each as advance and balance amount was to be paid
after release of the purchase order. A-1 had contacted PW-1 over telephone at
about 12.00 noon on 30.12.1991 and asked him to keep the demanded amount ready
so that he would come along with A-2 and collect the same around 8.30 p.m. on
that day at Basant Lodge, Visakhapatnam. Thereafter, PW-1 lodged a complaint
with the Superintendent of Police, C.B.I. Visakhapatnam on 30.12.1991 about the
demand of bribe by the accused and on the basis of his complaint, investigation
was taken up by registering a case i.e. R.C. No. 19(A)/91. Both the accused
were caught red handed at about 10.15 p.m. on 30.12.1991 in Room No.208 of Basant Lodge, Visakhapatnam soon after
they demanded and accepted bribe amount of Rs.5,000/- each from PW-1 as a
motive or reward for clearing the tender file in favour of M/s. Ramesh Chandra
& Co. The tainted currency notes amounting to Rs.10,000/- were recovered
immediately from the polythene carry bag which was available with A-1. Both the
accused abused their official position as public servants and after obtaining
sanction under Section 19(1)(c) of the Act, from the Chairman, Visakhapatnam
Port Trust a charge sheet was filed under Section 120B IPC and Sections 7 and
13 (1)(d) read with Section 13 (2) of the Act. The accused denied their guilt.
The prosecution in support of its case examined 32 witnesses while the accused
to substantiate their plea of innocence examined 5 witnesses. PW-2 who was
taken as witness to prove the acceptance and recovery of the money from PW-1 resiled
partially from the statement given during investigation.
reliance on the evidence of PW-1, PW-3 and PW-5, the Trial Court held that
there was cogent and credible evidence to show not only demand, acceptance but
also recovery of the money. PW-3 was at the relevant time working as Preventive
Officer, Customs and worked as the mediator. PW-5 was the investigating officer
who received the complaint, and monitored the trap operation. In appeal, before
the High Court the stand taken by the accused persons was that there was no
cogent evidence regarding demand. PW-1 complainant was not reliable. The
so-called complaint before the CBI is dated 20.12.1991. Specific stand of the
prosecution was that the complaint was made on 30.12.1991 as per Exts. P-3 and
P-3A. PW-2 who was one of the mediators did not support the prosecution version
completely. It was not possible to accept that high ranked officers would take
and accept money in the presence of an unknown party. There is no consistent
evidence as regards the first and the subsequent demands. Since A-1 was not
competent to finalise the tenders, it was not possible that he would demand
money. Further the evidence on record clearly establishes that by the time of
alleged demand files had been cleared by A-1 and, therefore, it is not
believable that the demand was made. PW-1 in the guise of arranging a dinner
took revenge on the accused persons for seeking legal advice before acceptance
of the tender. With these observations, the High Court set aside the conviction
and sentence as noted above.
support of the appeals, learned counsel appearing for the appellant-State
submitted that the order of the High Court is clearly erroneous. The correct
position in law regarding presumptions was not kept in view. The High Court
made out a third case which was not even urged by the accused persons before the
Trial Court regarding the alleged discrepancy of the date of the complaint. It
was pointed out that nowhere any such plea was raised by the accused persons
that the complaint is dated 20.12.1991. Documents clearly show that it is dated
30.12.1991. It is not known as to why the High Court made out a mew case which
was not even pleaded. Evidence of PW-1 clearly establishes the demand and the
recovery of money. The High Court came to a conclusion that third party was
present and high placed officers would not normally make a demand in the
presence of such a person. In fact, PW-2 was introduced to be Group Finance
Manager of M/s. Ramesh Chandra & Co. by PW-1. No direct evidence is
necessary to show regarding acceptance of money. The Trial Court has analysed in
great detail the factual position and the High Court without even considering
those reasons and indicating any reason as to why a different view was to be
taken has directed acquittal.
took the stand pleading that a telephonic message was given in his house that
there was a dinner in the Basanti Lodge. A-5 took the stand that he had gone to
purchase sweets. At the time of search apart from the tainted money Re.0.45 was
found with him. It is unbelievable that somebody would go to buy sweets with 45
paise in pocket. There was no variation and discrepancy in the evidence. The
mediator report and the evidence of the witnesses clearly establish the
High Court has observed that the accused persons being only members of the
tender committee possibility of making a demand was not there.
response, Mr. U.R. Lalit, learned counsel for respondent no.1 (A-1) submitted
that probabilities of the case have to be looked into and no straight jacket
formula can be adopted for deciding a case of this nature. He referred to
evidence regarding the accepted position that the complainant had made
grievance not only against the accused persons, but also on the same date
against another officer of the Port Trust. Earlier also he had made certain
grievances against others.
is a clear tactic to get his work done under the threat of complaint. Taking
advantage of the proximity with the CBI officials false case has been foisted.
In this background, the complainant (PW-1)'s version required strong corroboration
which is absent. PW-2's evidence does not show any demand. The manner of
collecting sample is also totally not above board.
the file had already been cleared the question of making a demand of bribe
would not arise. Further the complainant had been visiting the office and it is
not improbable that he had knowledge about accused persons having cleared the
file earlier to the date of demand.
clout enjoyed by PW-1 in the office and the favour shown to him by some members
of the Port Trust is clearly established by the evidence on record. The
evidence of PW-1 clearly shows that he had not informed accused persons about
the booking of room at Basant Lodge. It is improbable that the accused persons
would choose the lodge for accepting the bribe, when the prosecution case
itself is that PW-1 had gone to the house of A-1 earlier when PW-2 was present
there. The plea of accused persons that PW-1 called them to the Basant Lodge on
the pretext of dinner is also corroborated by the evidence of PW-11. Since view
taken by the High Court is reasonable one, no interference is called for.
Suggestion was given that the documents were not prepared at the time claimed.
The statutory presumption under the Act can be applied under Section 7 and not
13. Since PW-2 was examined on the panch witnesses, his evidence assumes
importance and since the High Court held that his evidence on certain aspects
is discrepant and contradictory, PW-1's evidence becomes suspect. In this
background no interference is called for.
counsel for respondent no.2 (A-2) adopted the stand of A-1. In addition she
submitted that there was no evidence of making a demand and his presence at the
house of A-1 as claimed is also not established.
High Court has rightly observed that PW-1 is not a reliable witness and come to
the right conclusion. The view is not in any way perverse to warrant
evidence of PWs 1 and 5 are discrepant as to where the copy of Ext.P-3 was
prepared. While it was PW-1's case that it was made in his office, PW-3 said it
is prepared in the office of CBI.
of reply, learned counsel for the State submitted that the plea that CBI
officials had conspired to falsely implicate A-1 and A-2 is clearly
unbelievable and looks absurd on the facts of the case.
reason has been indicated as to why the CBI officials would falsely implicate
the accused persons in the case. It has been recorded that there was no
restaurant facility at Basant Lodge and the plea that there was a telephone
call regarding the official dinner at Basant Lodge is clearly without any
substance. Further, on 2.12.1991 the Chairman had asked for certain
clarifications. A bare look at the complaint shows that it refers to the
occurrence of the same date i.e. 30.12.1991. This basic factor has been
overlooked by the High Court in making out a new case.
appreciating rival stands it would be proper to quote Section 20(1) of the Act,
which reads as follows:
Presumption where public servant accepts gratification other than legal
remuneration.-(1) Where in any trial or an offence punishable under Section 7
or Section 11 or clause (a) or clause (b) of sub-section (1) or 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 Indian Evidence Act, 1872 (in
short 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".
the expression "shall be presumed" is employed in Section 20(1) of
the Act, it must have the same import of compulsion.
the sub-section deals with legal presumption, it is to be understood as in terrorem
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. (See M. Narsinga Rao v. State of A.P. (2001 (1) SCC 691).
of the fact depends upon the degree of probability of its having existed. The
standard required for reaching the supposition is that of a prudent man acting
in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells
Tillery Steam Coal Co. Ltd. (1911 (1) KB 988) observed as follows:
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".
said observation has stood the test of time and 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-`-vis the facts of the particular case.
The discretion is clearly envisaged in Section 114 of the Evidence Act.
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.
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 v.
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".
(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
there was recovery of money from the accused. In fact the receipt and recovery
is accepted. The other factor is the acceptability of the plea of loan, which
the High Court itself has not held cogent or credible.
note that a three-Judge Bench in Raghubir Singh v. State of Punjab (1974 (4)
SCC 560) held that the very fact that the accused was in possession of the
marked currency notes against an allegation that he demanded and received the
amount is "res ipsa loquitur".
Lal v. State (Delhi Admn.) (1980 (2) SCC 390) it was
observed that there is no requirement to prove passing of money by direct
evidence. It may also be proved by circumstantial evidence. In Madhukar Bhaskarrao
Joshi v. State of Maharashtra (2000 (8) SCC 571) it was observed
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 doing or forbearing to do an 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".
Black's Law Dictionary, "gratification" is defined as "a
recompense or reward for services or benefits, given voluntarily, without
solicitation or promise". But in Oxford Advance Learner's Dictionary of
Current English the said word is given the meaning "to give pleasure or
satisfaction to". Among the above two descriptions for the word
"gratification" with slightly differing nuances as between the two,
what is more appropriate for the context has to be found out. The context in
which the word is used in Section 4(1) of the Act is, hence, important.
Mahboobkhan Pathan v. State of Maharashtra
(1997 (10) SCC 600) this Court has taken the same meaning for the word
"gratification" appearing in Section 4(1) of the Prevention of
Corruption Act 1947 (hereinafter referred to as 'the old Act'). We quote the
The primary condition for acting on the legal presumption under Section 4(1) of
the Act is that the prosecution should have proved that what the accused
received was gratification. The word 'gratification' is not defined in the Act.
Hence, it must be understood in its literal meaning. In the Oxford Advanced
Learner's Dictionary of Current English, the word 'gratification' is shown to
have the meaning 'to give pleasure or satisfaction to'. The word
'gratification' is used in Section 4(1) to denote acceptance of something to
the pleasure or satisfaction of the recipient." The provisions of Section
4(1) of the old Act and Section 20(1) of the Act are almost identically worded.
is the concept of gratification has been succinctly stated by this Court in The
State of Assam v. Krishna Rao (1973 (3) SCC 227), through illuminating words,
after quoting Section 4 of the Act.
State of Madras v. A. Vaidiaratha Iyer (1958 SCR
580) after reproducing the relevant provisions of Section 4 of the Act this
Court observed that where it is proved that a gratification has been accepted
the presumption under Section 4 of the Act shall at once arise. It is a
presumption of law and it is obligatory on the Court to raise it in every case
brought under Section 4. 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.I. Emden v. The State of U.P.
(AIR 1960 SC 548) the appellant who was working as a local foreman, was found
to have accepted a sum of Rs.375 from a railway contractor. The appellant's
explanation was that he had 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 Section 4 of the Act had to be raised and
that the presumption had not been rebutted by the appellant and accordingly
convicted him under Section 161 IPC and Section 5 of the Act. On appeal the
High Court held that on the facts of that case the statutory presumption under
Section 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 conviction. The appellant contended, on appeal in this
Court, inter alia: (i) that the presumption under Section 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 Section 4, observed that such
presumption 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 Section 4(1) was to be given its literal dictionary meaning
of satisfaction or appetite or desire;
could not be construed to mean money paid by way of a 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 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 (AIR
1964 SC 575) it was observed that in order to raise the presumption under
Section 4(1) of the 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 this section is satisfied and the presumption
thereunder must be raised.
v. State of U.P. (1968 (3) SCR 766) the above
decisions were approved and it is observed that mere receipt of money is
sufficient to raise the presumption under Section 4(1) of the Act." In
C.I. Emden v. State of Uttar Pradesh (AIR 1960 SC 548) and V.D. Jhangan v.
State of Uttar Pradesh (1966 (3) SCR 736) it was observed that if any money is
received and no convincing, credible and acceptable explanation is offered by
the accused as to how it came to be received by him, the presumption under
Section 4 of the old Act is available. When the receipt is admitted it is for
the accused to prove as to how the presumption is not available as perforce the
presumption arises and becomes operative.
aspects were highlighted recently in State of Andhra Pradesh v. V. Vasudev Rao (JT 2003 (9) SC 119).
evidence of PW-1 cannot be ignored on the ground that he had earlier made
grievances against some other officials. The Trial Court had carefully analysed
his evidence and found the same to be credible. Even if PW-2 did not support
the prosecution version on some aspects yet his evidence also prove giving of
evidence of PW-1 coupled with those of PWs 3 and 5 is sufficient to bring home
the accusations. Further, the High Court seems to have made out a new case
about the alleged date of complaint. A bare reading of the contents of the
complaint and the date put in the complaint as evident from Exts. P-3 and P-3A
clearly show that the High Court was not correct in saying that the date of the
document is 20.12.1991. Additionally, this plea was not raised before the Trial
Court. There was even no suggestion about that aspect. Learned counsel for A-1
and A-2 submitted that suggestions were there, which is not so. What was
suggested was the documents were not prepared at the time they were claimed to
be. There is a gulf of difference between "time" and
"date". In any event such a plea has not been taken before the courts
below. It being essentially a question of fact, the High Court could not have
made out a new case regarding correctness of the date. As noted above, the
views of the High Court were also not correct when the document is itself
looked at. Much stress was laid on the accused persons not being the final
authority in the tender matter. As noted in Chaturdas Bhagwandas Patel v. The
State of Gujarat (1976 (3) SCC 46) the question
whether a person has authority to do the act for which bribe is accepted is of
in view the legal principles as can be culled out from decisions referred to above,
applying the fact situation to them the inevitable conclusion is that the High
Court was not justified in directing acquittal. Not only the correct legal
position was not kept in view but the analysis of the factual position is also
found to be erroneous. That being so, the judgment of the High Court is set
aside. Custodial sentence of one year for each of the proved offence would meet
the ends of justice, with the fine and default stipulation stipulated by the
appeals are allowed to the extent indicated. The accused persons are directed
to surrender to custody to serve remainder of sentence, if any.