Sri C. I. Emden Vs. The State of U. P
 INSC 154 (15 December 1959)
SINHA, BHUVNESHWAR P.(CJ) SUBBARAO, K.
GUPTA, K.C. DAS SHAH, J.C.
CITATION: 1960 AIR 548 1960 SCR (2) 592
CITATOR INFO :
R 1964 SC 575 (10) R 1966 SC1762 (3) R 1968
SC1292 (8) E 1973 SC 28 (19,20) R 1975 SC 899 (10) RF 1979 SC 478 (72) R 1986
SC2045 (55) RF 1990 SC1269 (2,3)
Prevention of Corruption-Trial on a charge of
bribery- Receipt of gratification other than legal remuneration, meaning of
Statutory Presumption-Whether offends guarantee of equal protection of
laws-Rebuttal of Presumption- Constitution of India, Art. 14-Prevention of
Corruption Act, 1947 (11 of 1947), s. 4.
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 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 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 Indian Penal Code and s. 5 Of the Prevention of
Corruption Act, 1947. On appeal the High Court held that on the facts of the
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 conviction. The
appellant contended (i) that S. 4 was ultra vires as it contravened Art. 14 of
the Constitution, (ii) 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, (iii) and that even if the presumption arose it
was rebutted when the appellant offered a reasonably probable explanation.
Held, that s. 4 of the Prevention of
Corruption Act did not violate Art. 14 Of the Constitution. The classification
of public servants who were brought within the mischief of s. 4 was based on
intelligible differentia which had a rational relation to the object of the
Act, viz,, eradicating bribery and corruption amongst public servants.
Ram Krishna Dalmia v. Shri justice S. R.
Tendolkar,  S.C.R. 279, followed.
A. S. Krishna v. The State of Madras, 
S.C.R. 399, referred to.
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 ' 593 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 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.
State v. Pundlik Bhikaji Ahire, (1959) 61
Bom. L.R. 837 and Promod Chander Shekhar v. Rex, I.L.R. 1950 All. 382,
The State v. Abhey singh, A.I.R. 1957 Raj.
138 and State v. Pandurang Laxman Parab, (1958) 60 Bom. L.R. 811, disapproved.
Even if it be assumed that the presumption
arising under S. 4(1) could be rebutted by the accused giving an explanation
which was a reasonably probable one the High Court was right in holding that
the explanation given by the appellant was wholly unsatisfactory and
Otto George Gfeller v. The King, A.I.R. 1943
P.C. 211 and Rex v. Cary Briant, (1943) I K.B. 607, referred to.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 68 of 1958.
Appeal by special leave from the judgment and
order dated July 11, 1957, of the Allahabad High Court (Lucknow Bench),
Lucknow, in Criminal Appeal No. 515 of 1955, arising out of the judgment and
order dated October 31, 1955, of the Special Judge, Anti-corruption, Lucknow,
in Criminal Case No. 2/3/32/45 of 1953-55.
Frank Anthony, Udai Pratap Singh and P. C.
Agarwala, for the appellant.
G. C. Mathur and O. P. Lal, for the
1959. December 15. The Judgment of the Court
was delivered by GAJENDRAGADKAR J.-This appeal by special leave Gajendragadkar
j. has been filed by C. 1. Emden (hereinafter called the appellant) who has
been convicted under s. 161 of the Indian Penal Code and under s. 5(2) of the
Prevention of Corruption Act 2 of 1947 (hereinafter called the Act). The case
against him was that he had accepted a bribe of Rs. 375 from Sarat Chandra
Shukla on January 8, 1953. The appellant was a Loco Foreman at Alambagh Loco
Shed, and Shukla had secured a contract at the same place for the removal of
cinders 76 594 from ash pits and for loading coal. This contract had been given
to Shukla in June 1952. The prosecution case was that the appellant demanded
from Shukla Rs. 400 per month in order that Shukla may be allowed to carry out
his contract peacefully without any harassment. Shukla was told by the
appellant that he had been receiving a monthly payment from Ram Ratan who had
held a similar contract before him and that it would be to his interest to
agree to pay the bribe.
Shukla, however, refused to accede to this
request and that led to many hostile acts on the part of the appellant. On
January 3, 1953, the appellant again asked Shukla to pay him the monthly bribe
as already suggested; Shukla then requested him to reduce the demand on the
ground that the contract given to him was for a much lesser amount than that
which had been given to his predecessor Ram Ratan; the appellant thereupon
agreed to accept Rs. 375. Shukla had no money at the time and so he asked for
time to make the necessary arrangement. The agreement then was that Shukla
would pay the money to the appellant on January 8, 1953.
Meanwhile Shukla approached the Deputy
Superintendent, of Police, Corruption Branch, and gave him information about
the illegal demand made by the appellant. Shukla's statement was then recorded
before a magistrate and it was decided to lay a trap. Accordingly, a party
consisting of Shukla, the magistrate, the Deputy Superintendent of Police and
some other persons went to the Loco Yard. Shukla and Sada Shiv proceeded inside
the Yard while the rest of the party stood at the gate. Shukla then met the
appellant and informed him that he had brought the money; he was told that the
appellant would go out to the Yard and accept the money.
At about 3 p.m. the appellant went out to the
Yard and, after making a round, came to the place which was comparatively
secluded. He then asked Shukla to pay the money and Shukla gave him a bundle
containing the marked currency notes of the value of Rs. 375. A signal was then
made by Shukla and the raiding party immediately arrived on the scene. The
magistrate disclosed his identity to the 595 appellant and asked him to produce
the amount paid to him by Shukla. The appellant then took out the currency
notes from his pocket and handed them over to the magistrate. It is on these
facts that charges under s. 161 of the Indian Penal Code and s. 5(2) of the Act
were framed against the appellant.
The appellant denied the charge. He admitted
that he had received Rs. 375 from Shukla but his case was that at his request
Shukla had advanced the said amount to him by way of loan for meeting the
expenses of the clothing of his children who were studying in school. The
appellant alleged that since he had been in need of money he had requested
Kishan Chand to arrange for a loan of Rs. 500; but knowing about his need
Shukla offered to advance him the loan, and it was as such loan that Shukla
paid him Rs. 375 and the appellant accepted the said amount. Both the prosecution
and the defence led evidence to support their respective versions.
The learned special judge who tried the case
believed the evidence given by Shukla, held that it was sufficiently
corroborated, and found that the defence story was improbable and untrue. The
learned judge also held that on the evidence led before him the presumption
under s. 4 of the Act had to be raised and that the said presumption had not
been rebutted by the evidence led by the defence.
Accordingly, the learned judge convicted the
appellant of both the offences charged and sentenced him to suffer one year's
rigorous imprisonment and to pay a fine of Rs. 500 under s. 161 of the Code and
two years' rigorous imprisonment under s. 5 of the Act. Both the sentences were
ordered to run concurrently.
The appellant challenged the correctness and
propriety of this order by his appeal before the High Court of Allahabad.
The High Court saw no reason to interfere
with the order under appeal because it held that, on the facts of the case, a statutory
presumption under s. 4 had to be raised and that the said presumption had not
been rebutted by the appellant.
In other words the High Court did not
consider the prosecution evidence apart from the presumption since 596 it
placed its decision on the presumption and the failure of the defence to rebut
it. In the result the conviction of the appellant was confirmed, the sentence
passed against him under s. 161 was maintained but the sentence under s. 5(2)
of the Act was reduced to one year. The sentences thus passed were ordered to
run concurrently. It is against this order that the present appeal by special
leave has been preferred by the appellant. This appeal has been placed before a
Constitution Bench because one of the points which the appellant raises for our
decision is that s. 4(1) of the Act which requires a presumption to be raised
against an accused person is unconstitutional and ultra vires as it violates
the fundamental right guaranteed by Art. 14 of the Constitution. We would,
therefore, first examine the merits of this point.
The Act was passed in 1947 with the object of
effectively preventing bribery and corruption. Section 4(1) provides that where
in any trial of an offence punishable under s. 161 or s. 165 of the Indian
Penal Code 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. Mr. Anthony, for the
appellant, contends that this section offends against the fundamental
requirement of equality before law or the equal protection of laws. It is
difficult to appreciate this argument. The scope and effect of the fundamental
right guaranteed by Art. 14 has been considered by this Court on several
occasions; as a result of the decisions of this Court it is well established
14 does not forbid reasonable classification
for the purposes of legislation; no doubt it forbids class legislation; but if
it appears that the 597 impugned legislation is based on a reasonable
classification founded on intelligible differentia and that the said
differentia have a rational relation to the object Sought to be achieved by it,
its validity cannot be successfully challenged under Art. 14 (Vide: Shri Ram
Krishna Dalmia v. Shri Justice S. R. Tendolkar (1). In the present case there
can be no doubt that the basis adopted by the Legislature in classifying one
class of public servants who are brought within the mischief of s. 4(1) is a
perfectly rational basis. It is based on an intelligible differentia and there
can be no difficulty in distinguishing the class of persons covered by the
impugned section from other classes of persons who are accused of committing
Legislature presumably realised that
experience in courts showed how difficult it is to bring home to the accused
persons the charge of bribery; evidence which is and can be generally adduced
in such cases in support of the charge is apt to be treated as tainted, and so
it is not very easy to establish the charge of bribery beyond a reasonable
Legislature felt that the evil of corruption
amongst public servants posed a serious problem and bad to be effectively
rooted out in the interest of clean and efficient administration. That is why
the Legislature decided to enact s. 4(1) with a view to require the raising of
the statutory presumption as soon as the condition precedent prescribed by it
in that behalf is satisfied. The object which the Legislature thus wanted to
achieve is the eradication of corruption from amongst public servants, and
between the said object and the intelligible differentia on which the
classification is based there is a rational and direct relation. We have,
therefore, no hesitation in holding that the challenge to the vires of s. 4(1)
on the ground that it violates Art. 14 of the Constitution must fail.
Incidentally, we may refer' to the decision of this Court in A. S. Krishna v.
The State of Madras (2) in which a similar challenge to the vires of a
statutory presumption required to be raised under s. 4(2) of the Madras
Prohibition Act, 10 of 1937, has been repelled.
(1)  S.C.R. 279. (2)  S.C. R.
598 That takes us to the question of
construing s. 4(1). When does the statutory presumption fall to be raised, and
what is the content of the said presumption? Mr. Anthony contends that the
statutory presumption cannot be raised merely on proof of the fact that the
appellant had received Rs. 375 from Shukla; in order to justify the raising of
the statutory presumption it must also be shown by the prosecution that the
amount was paid and accepted as by way of bribe. This argument involves the
construction of the words " any gratification other than, legal
remuneration " used in s. 4(1). It is also urged by Mr. Anthony that even
if the statutory presumption is raised against the appellant, in deciding the
question as to whether the contrary is proved within the meaning of s. 4(1) it
must be borne in mind that the onus of proof on the appellant is not as heavy
as it is on the prosecution in a criminal trial.
Let us first consider when the presumption
can be raised under s. 4(1). In dealing with this question it may be relevant
to remember that the presumption is drawn in the light of the provisions of s.
161 of the Indian Penal Code.
In substance the said section provides inter
alia that if a public servant accepts any gratification whatever other than
legal remuneration as a motive or reward for doing or forbearing to do any
official act, he is guilty of accepting illegal gratification. Section 4(1)
requires the presumption to be raised whenever it is proved that an accused
person has accepted " any illegal gratification (other than legal
remuneration) or any valuable thing." This clause does not include the
receipt of trivial gratification or thing which is covered by the exception
prescribed by sub-s. (3). The argument is that in prescribing the condition
precedent for raising a presumption the Legislature has advisedly used the word
" gratification " and not money or gift or other consideration. In
this connection reliance has been placed on the corresponding provision
contained in s. 2 of the English Prevention of Corruption Act, 1916 (6 Geo. 5,
c. 64) which uses the words "any money, gift, or other consideration
". The use of the 599 word gratification emphasises that it is not the
receipt of any money which justifies the raising of the presumption;
something more than the mere receipt of money
has to be proved. It must be proved that the money was received by way of
bribe. This contention no doubt is supported by the decision of the Rajasthan
High Court in The State v. Abhey Singh (1) as well as the decision of the
Bombay High Court in the State v. Pandurang Laxman Parab (2).
On the other hand Mr. Mathur, for the State,
argues that the word " gratification " should be construed in its
literal dictionary meaning and as such it means satisfaction of appetite or
desire; that is to say the presumption can be raised whenever it is shown that
the accused has received satisfaction either of his desire or appetite. No
doubt it is conceded by now that in most of the cases it-would be the payment
of money which would cause gratification to the accused; but he contests the
suggestion that the word " gratification " must be confined only to
the payment of money coupled with the right that the money should- have been paid
by way of a bribe. This view has been accepted by the Bombay High Court in a
subsequent decision in State v.
Pundlik Bhikaji Ahire (3) and by the
Allahabad High Court in Promod Chander Shekhar v. Rex (4).
Paragraph 3 of s. 161 of the Code provides
that the word " gratification " is not restricted to pecuniary
gratification or to gratifications estimable in money. Therefore "
gratification " mentioned in s. 4(1) cannot be confined only to payment of
money. What the prosecution has to prove before asking the court to raise a
presumption against an accused person is that the accused person has received a
" gratification other than legal remuneration "; if it is shown, as
in the present case it has been shown, that the accused received the stated
amount and that the said amount was not legal remuneration then the condition
prescribed by the section is satisfied. In the context of the remuneration
legally payable to, and receivable by, a (1) A.I.R.  Rajasthan 138.
(2) (1958) 60 B. L. R. 8 xi.
(3) (1959) 61 B.L.R. 837.
(4) I.L.R. 1950 All. 382.
600 public servant, there is no difficulty in
holding that where money is shown to have been paid to, and accepted by, such
public servant and that the said money does not constitute his legal
remuneration, the presumption has to be raised as required by the section. If
the word " gratification " is construed to mean money paid by way of
a bribe then it would be futile or superfluous to prescribe for the raising of
the presumption. Technically it may no doubt be suggested that the object which
the statutory presumption serves on this construction is that the court may
then presume that the money was paid by way of a bribe as a motive or reward as
required by s. 161 of the Code. In our opinion this could not have been the intention
of the Legislature in prescribing the statutory presumption under s. 4(1). In
the context we see no justification for not giving the word "
gratification " its literal dictionary meaning.
There is another consideration which supports
this construction. The presumption has also to be raised when it is shown that
the accused person has received any valuable thing. This clause has reference
to the offence punishable under s. 165 of the Code; and there. is no doubt that
one of the essential ingredients of the said offence is that the valuable thing
should have been received by the accused without consideration or for a
consideration which he knows to be inadequate. It cannot be suggested that the
relevant clause in s. 4(1) which deals with the acceptance of any valuable
thing should be interpreted to impose upon the prosecution an obligation to
prove not only that the valuable thing has been received by the accused but
that it has been received by him without consideration or for a consideration
which he knows to be inadequate. The plain meaning of this clause undoubtedly
requires the presumption to be raised whenever it is shown that the valuable
thing has been received by the accused without anything more. If that is the
true position in respect of the construction of this part of s. 4(1) it would
be unreasonable to hold that the word " gratification " in the same
clause imports the necessity to prove not only the payment 601 of money but the
incriminating character of the said payment. It is true that the Legislature
might have used the word " money " or " consideration " as
has been done by the relevant section of the English statute; but if the
dictionary meaning of the word " gratification " fits in with the
scheme of the section and leads to the same result as the meaning of the word
" valuable thing " mentioned in the same clause, we see no
justification for adding any clause to qualify the word "
gratification"; the view for which the appellant contends in effect
amounts to adding a qualifying clause to describe gratification. We would
accordingly hold that in the present appeal the High Court was justified in
raising the presumption against the appellant because it is admitted by him
that he received Rs. 375 from Shukla and that the amount thus received by him
was other than legal remuneration.
What then is the content of the presumption
which is raised against the appellant ? Mr. Anthony argues that in a criminal
case the onus of proof which the accused is called upon to discharge can never
be as heavy as that of the prosecution, and that the High Court should have
accepted the explanation given by the appellant because it is a reasonably
probable explanation. He contends that the test which can be legitimately
applied in deciding whether or not the defence explanation should be accepted
cannot be as rigorous as can be and must be applied in deciding the merits of
the prosecution case. This question has been considered by courts in India and
in England on several occasions. We may briefly indicate some of the relevant
decisions on this point.
In Otto George Gfeller v. The King(1) the
Privy Council was dealing with the case where the prosecution had established
that the accused were in possession of goods recently stolen and the point
which arose for decision was how the explanation given by the accused about his
possession of the said goods would or should be considered by the jury. In that
connection Sir George Rankin observed that the appellant did not (1) A.I.R.
1943 P.C. 211.
77 602 have to prove his story, but if his
story broke down the jury might convict. In other words, the jury might think
that the explanation given was one which could not be reasonably true,
attributing a reticence or an incuriosity or a guilelessness to him beyond
anything that could fairly be supposed. The same view was taken in Rex v. Carr
Briant (1) where it has been observed that in any case where either by statute
or at common law some matter is presumed against an accused, " unless the
contrary is -proved the jury should be directed that it is for them to decide
whether the contrary is proved, that the burden of proof required is less than
that required at the bands of the prosecution in proving the case beyond a
reasonable doubt, and that the burden may be discharged by evidence satisfying
the jury of the probability of that which the accused is called upon to
establish " (p. 612). In other words, the effect of these observations
appears to be to relax to some extent the rigour of "the elementary
proposition that in civil -cases the preponderance of probability may
constitute sufficient ground for a verdict " (p. 611),(Also vide: Regina
v. Dunbar (2)). It is on the strength of these decisions that Mr. Anthony
contends that in deciding whether the contrary has been proved or not under s.
4(1) the High Court should not have applied the same test as has to be applied
in dealing with the prosecution case. The High Court should have inquired not
whether the explanation given by the appellant is wholly satisfactory but whether
it is a reasonably possible explanation or not. On behalf of the State it is
urged by Mr. Mathur that in construing the effect of the clause " unless
the contrary is proved " we must necessarily refer to the definition of
the word " proved " prescribed by s. 3 of the Evidence Act. A fact is
said to be proved when, after considering the matter before it, the Court
either believes it to exist or considers its existence so probable that a
prudent man ought under the circumstances of the particular case to act on the
supposition that it exists. He has also relied on s. 4 which provides that
whenever it is directed that the (1) (1943) 1 K.B. 607.
(2) (1958) 1 Q.B. 1 at p. 11.
603 court shall presume a fact it shall
record such fact as proved unless and until it is disproved. The argument is
that there is not much room for relaxing the onus of proof where the accused is
called upon to prove the contrary under s. 4(1). We do not think it necessary
to decide this point in the present appeal. We are prepared to assume in favour
of the appellant that even if the explanation given by him is a reasonably
probable one the presumption raised against him can be said to be rebutted. But
is the explanation.
given by him reasonably probable ? That is
the question which must now be considered.
What is his explanation ? He admits that he
received Rs. 375 from Shukla but urges that Shukla gave him this amount as a
loan in order to enable him to meet the expenses of the clothes for his
school-going children. In support of this the appellant gave evidence himself,
and examined other witnesses, Kishan Chand and Ram Ratan being the principal
ones amongst them. The High Court has examined this evidence and has
disbelieved it. It has found that Kishan Chand is an interested witness and
that the story deposed to by him is highly improbable. Apart from this
conclusion reached by the High Court on appreciating oral evidence adduced in
support of the defence plea, the High Court has also examined the probabilities
in the case. It has found that at the material time the appellant was in
possession of a bank balance of Rs. 1,600 and that his salary was about Rs. 600
per month. Besides his children for whose clothing he claims to have borrowed
money had to go to school in March and there was no immediate pressure for
preparing their clothes. The appellant sought to overcome this infirmity in his
explanation by suggesting that he wanted to reserve his bank balance for the
purpose of his daughter's marriage which he was intending to perform in the
near future. The High Court was not impressed by this story; and so it thought
that the purpose for which the amount was alleged to have been borrowed could
not be a true purpose.
Besides the High Court has also considered
whether it would have been probable that Shukla 604 should have advanced money
to the appellant. Having regard to the relations between the appellant and
Shukla it was held by the High Court that it was extremely unlikely that Shukla
would have offered to advance any loan to the appellant. It is on a
consideration of these facts that the High Court came to the conclusion that
the explanation given by the accused was improbable and palpably unreasonable.
It is true that in considering the
explanation given by the appellant the High Court has incidentally referred to
the statement made by him on January 8, 1953, before the magistrate, and Mr.
Anthony has strongly objected to this part of the judgment. It is urged that
the statement made by the appellant before the magistrate after the investigation
into the offence had commenced is inadmissible. We are prepared to assume that
this criticism is well founded and that the appellant's statement in question
should not have been taken into account in considering the probability of his
explanation; but, in our opinion, the judgment of the High Court shows that not
much importance was attached to this statement, and that the final conclusion
of the High Court was substantially based on its appreciation of the oral
evidence led by the defence and on considerations of probability to which we
have already referred. Therefore, we are satisfied that the High Court was
right in discarding the explanation given by the appellant as wholly
unsatisfactory and unreasonable. That being so it is really not necessary in
the present appeal to decide the question about the nature of the onus of proof
cast upon the accused by s. 4(1) after the statutory presumption is raised
In the result the appeal fails, the order of
conviction and sentence passed against the appellant is confirmed and his bail