V.D. Jhangan Vs. State of Uttar
Pradesh  INSC 65 (3 March 1966)
03/03/1966 RAMASWAMI, V.
CITATION: 1966 AIR 1762 1966 SCR (3) 736
R 1968 SC1292 (8,9) RF 1971 SC2474 (14) E
1973 SC 28 (19,20) F 1974 SC 773 (7) R 1975 SC 899 (10) RF 1981 SC1186 (11,13)
R 1990 SC1459 (30)
Prevention of Corruption Act, 1947 (2 of
1947), s. 4(1)Presumption under section, when arises-Receipt of money or
valuable thing by accused whether sufficient-Nature of burden of proof on
accused for rebutting such presumption.
The appellant, an employee of the Ministry of
Commerce was tried for offences under s. 161 of the Indian Penal Code and s.
5(2) read with s. 5(1)(d) of the Prevention of Corruption Act on the allegation
that he received a sum of money and some cloth from a trader. He was convicted
and his appeal before the High Court failed. In appeal before this Court the
questions that fell for determination related to : (i) the circumstances in which
a presumption under sub-s. (1) of s. 4 of the Prevention of Corruption Act
could arise, and (ii) the nature of the burden of proof that lay on an accused
person to rebut such a presumption when it arises.
HELD:(i) For a presumption to be raised under
s. 4(1) it is not necessary for the prosecution to prove anything more than
that money or other valuable thing was received by the accused; it is not for
the prosecution, for the above purpose, to prove the incriminating character of
the said payment. [739 E, F] Dhanvantrai Balwantrai Desai v. State of Maharashtra, A.I.R.
1964 S.C. 575 and C. I. Emden v. State of Uttar Pradesh, A.I.R. 1960 S.C 548, followed.
(ii)The burden of proof lying upon the
accused under s. 4(1) will be satisfied if the accused person establishes his
case by a prepared of probability and it is not necessary that he should
establish his case by the test of proof beyond a reasonable doubt. The onus on
an accused person may well be compared to the onus on a party in civil
proceedings. [741 B] Woolmington v. Director of Public Prosecutions, 
A.C. 462, Rex v. Carr-Briant,  1 K.B. 607 and Harbhajan Singh v. Stale of
Punjab,  3 S.C.R. 235, referred to.
In the present case the appellant had not
proved his case even by the test of preponderance of probability.
CRIMINAL'APPELLATE JURISDICTION : Criminal
Appeal No. 157 of 1964.
Appeal by special leave from the judgment and
order dated March 20, 1964 of the Allahabad High Court (Lucknow Bench) at Lucknow in Criminal Appeal No. 20 of 1962.
Jai Gopal Sethi, C. L. Sareen and R. L.
Kohli, for the appellant.
737 S. T. Desai, R. L. Mehta and 0. P. Rana,
for the respondent.
The Judgment of the Court was delivered by
Ramaswami, J. The appellant was tried for offences under s.
161, Indian Penal Code and s. 5(2) read with
s. 5(1)(d) of the Prevention of Corruption Act by special Judge, AntiCorruption,
Lucknow who by his judgment dated January 8, 1962 convicted the appellant and
sentenced him to three years' rigorous imprisonment and a fine of Rs. 2,000. In
default for payment of fine the appellant was further ordered to undergo
rigorous imprisonment for one year. The appellant preferred an appeal to the
Allahabad High Court, Lucknow Bench, which dismissed the appeal by its judgment
dated March 20, 1964 and affirmed the conviction and sentence imposed by the
Special Judge upon the appellant.
This appeal is brought, by special leave,
from the judgment of the Allahabad High Court, Lucknow Bench.
The appellant was employed as Assistant
Director Enforcement, Government of India, Ministry of Commerce at Kanpur and
used to deal with matters regarding the cancellation of licences of cloth
dealers at Kanpur. On or about September 5, 1951 the appellant received a
confidential letter dated August 30, 1951 from the District Magistrate, Kanpur. On the same date the appellant called one Ram Lal Kapoor who was the legal adviser
of New Victoria Mills Ltd. at his house. The appellant showed him the letter of
the District Magistrate and on the strength of that letter he demanded through
Ram Lal Kapoor a bribe of Rs. 30,000 from Sidh Gopal for saving his licence
from being cancelled. It appears that Sidh Gopal was a partner of various firms
dealing in cloth and it was suspected that these firms were indulging in
black-marketing in cloth. Sidh Gopal came to the appellant on September 9, 1951 to talk over the matter and the appellant made the same demand of bribe
from him. On September 11, 1951, the appellant is alleged to have agreed with
'Ram Lal Kapoor to receive a sum of Rs. 10,000 as first installment of the
bribe from Sidh Gopal through Ram Lal Kapoor. Accordingly on September 11, 1951 at about 8 p.m.
the appellant went to the house of Ram Lal
Kapoor and accepted the bribe of Rs. 10,000 in currency notes and also a Than
of long cloth from the said Ram Lal Kapoor undertaking that in lieu thereof the
appellant would not report against Sidh Gopal and thereby save his licence from
cancellation. A raid had been prearranged and the raiding party consisting of
Shri Satish Chander P.W. I and Shri Onkar Singh P.W. 2, the District Magistrate
and the Senior Superintendent of Police respectively were lying in wait at the
premises of Ram Lal Kapoor. At about 9. 45 p.m. the appellant came out of the
bungalow of Ram Lal Kapoor and on the agreed signal being given, the raiding
party came and on search of the appellant an amount of Rs. 10,000 was found
from his person.
738 At the time of the recovery of the money
the appellant made a statement that the amount received by him was as a loan as
he wanted to purchase a bungalow. The defence of the appellant was that he
never negotiated with Ram Lal Kapoor or Sidh Gopal regarding the bribe but the
appellant had been falsely implicated because he had prosecuted one Bhola Nath
of the firm of M/s Mannulal Sidh Gopal under s. 7 of Essential Supplies Act and
the District Magistrate had arrested Bhola Nath and kept him under detention
under the powers conferred by the Preventive Detention Act. In order to take
revenge for the arrest of Bhola Nath, Sidh Gopal and Ram Lal Kapoor had
conspired together and falsely implicated the appellant. The Special Judge
disbelieved the case of the appellant and held that the prosecution evidence
sufficiently established the charges under S. 161, Indian Penal Code and S.
5(2) read with s. 5(1)(d) of the Prevention of Corruption Act. The findings of
the trial court have been affirmed by the Allahabad High Court in appeal which
also rejected the case of the appellant as untrue and held that the amount of
Rs. 10,000 was received by the appellant from Ram Lal Kapoor by way of illegal
gratification and not as a loan for purchasing a house.
The first question for determination is
whether a presumption under sub-s. (1) of S. 4 of the Prevention of Corruption
Act arises "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 or 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 S. 161, or as the case may
be, without consideration or for a consideration which he knows to be
inadequate." It was held by this Court in Dhanvantrai Balwantrai Desai v. State
of Maharashtra(1) that in order to raise the presumption under this sub-section
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
there under must be raised. It was contended in that case that the mere receipt
of any money did not justify the raising of the presumption and that (1) A.I.R.
1964 S.C. 575.
739 something more than the mere receipt of
the money had to be proved. The argument was rejected by this Court and it was
held that the mere receipt of the money was sufficient to raise a presumption
under the sub-section. A similar argument was addressed in C. I. Emden v. State
of Uttar Pradesh(1). In rejecting that argument this Court observed:
"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)." This Court proceeded
"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 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;........" It must, therefore, be
held that, in the circumstances of the present case, the requirements of sub-s.
(1) of S. 4 have been fulfilled and the presumption there under must be raised.
The next question arising in this case is as
to what is the burden of proof placed upon the accused person against whom the
presumption is drawn under S. 4(1) of the Prevention of Corruption Act. It is
well-established that where the burden of an issue lies upon the accused, he is
not required to discharge that burden by leading evidence to prove his case
beyond a reasonable doubt. That is, (1) A.I.R. 1960 S.C. 548.
740 of course, the test prescribed in
deciding whether the prosecution has discharged its onus to prove the guilt of
the accused; but the same test cannot be applied to an accused person who seeks
to discharge the burden placed upon him under s. 4(1) of the Prevention of
Corruption Act. It is sufficient if the accused person succeeds in proving a
preponderance of probability in favour of his case. It is not necessary for the
accused person to prove his case beyond a reasonable doubt or in default to
incur a verdict of guilty. The onus of proof lying upon the accused person is
to prove his case by a preponderance of probability. As soon as he succeeds in
doing so, the burden is shifted to the prosecution which still has to discharge
its original onus that never shifts i.e., that of establishing on the whole
case the guilt of the accused beyond a reasonable doubt. It was observed by
Viscount Sankey in Woolmington v. Director of Public Prosecutions(1) that
"no matter what the charge or where the trial, the principle that the
prosecution must prove the guilt of the prisoner is part of the common law of
England and no attempt to whittle it down can be entertained". This
principle is a fundamental part of the English Common Law and the same position
prevails in the Criminal Law of India. That does not mean that if the statute
places the burden of proof on an accused person, he is not required to
establish his plea; but the degree and character of proof which the. accused is
expected to furnish in support of his plea, cannot be equated with the degree
and character of proof expected from the prosecution which is required to prove
its case. In Rex v. Carr-Briant(2) a somewhat similar question arose before the
English Court of Appeal. In that case, the appellant was charged with the
offence of corruptly making a gift or loan to a person in the employ of the War
Department as an inducement to show, or as a reward for showing, favour to him.
The charge was laid under the Prevention of Corruption Act, 1916, and in respect
of such a charge, s. 2 of the Prevention of Corruption Act, 1916, had provided
that a consideration shall be deemed to be given corruptly unless the contrary
is proved. The question which arose before the Court. was:
what is the accused required to prove if he
wants to claim the benefit of the exception? At the trial, the Judge had
directed the jury that the onus of proving his innocence lay on the accused and
that the burden of proof resting on him to negative corruption was as heavy as
that ordinarily resting on the prosecution. The Court of Criminal Appeal held
that this direction did not correctly represent the true position in law. It
was held by the Court of Appeal that where, either by statute or at Common Law,
some matter is resumed against an accused person "unless the contrary is
proved," the jury should be directed that the burden of proof on the
accused is less than that required at the hands of the prosecution in proving
the case beyond a reasonable doubt, and that this burden may be discharged by
evidence satisfying the jury of the (1) A.C. 462.
(2)  1 K.B. 607.
741 probability of that which the accused is
called on to establish. The ratio of this case was referred to with approval by
this Court in Harbhajan Singh v. The State of Punjab.(1) We are accordingly of
the opinion that the burden of proof lying upon the accused under s. 4(1) of
the Prevention of Corruption Act will be satisfied if the accused person
establishes his case by a preponderance of probability and it is not necessary
that he should establish his case by the test of proof beyond a reasonable
doubt. In other words, the onus on an accused person may well be compared to
the onus on a party in civil proceedings, and just as in civil proceedings the
court trying an issue makes its decision by adopting the test of probabilities,
so must a criminal court hold that the' plea made by the accused is proved if a
preponderance of probability is established by the evidence led by him.
It is against this background of principle
that we must proceed to examine the contention of the appellant that the
charges under s. 161, Indian Penal Code and s. 5(2) read with s. 5(1)(d) of the
Prevention of Corruption Act have not been proved against him. It was argued by
Mr. Sethi that the circumstances found by the High Court in their totality do
not establish that the appellant accepted the amount of Rs. 10,000 as illegal
gratification and not as a loan. It was also argued -for the appellant that he
had adduced sufficient evidence to show that the amount was really given to him
as a loan by Ram Lal Kapoor. Having examined the findings of both the lower
courts, we are satisfied that the appellant has not proved his case by the test
of preponderance of probability and the lower courts rightly reached the
conclusion that the amount was taken by the appellant not as a loan but as
It has been found by the High Court that Ram.
Lal Kapoor was not likely to lend a sum of Rs. 10,000 to the appellant without
getting a formal document executed. It is not suggested by the appellant that
he executed a hand-note in favour of Ram Lal Kapoor. There was a suggestion
that he granted a receipt for Rs. 10,000 to Ram Lal Kapoor but the High Court
rejected the case of the appellant on this point.
The High Court has observed that, in the
first instance, the appellant did not make a statement with regard to the
receipt as soon as the amount was recovered from him. It was only after he was
taken to Marden Singh's place that he made a belated statement that the amount
was advanced to him by Ram Lal Kapoor as a loan and he had granted a receipt.
Mr. Sethi contended that it was the duty of
the District Magistrate 'and the Senior Superintendent of Police to have made a
search of the whole bungalow of Ram Lal Kapoor for the alleged receipt and the
failure of these two officers to make the search should be taken to prove the
appellant's case regarding the grant of the alleged receipt.
(1)  3 S.C.R. 235.
742 We do not accept the submission of the
learned counsel as correct. The High Court has remarked that the statement of
the appellant was highly belated and the District authorities were justified in
not making a search and ransacking the whole bungalow of Ram La] Kapoor for the
recovery of the alleged receipt. It was then contended on behalf of the
appellant that no panchanama was prepared by the District Magistrate or the
Senior Superintendent of Police who recovered the money from the appellant. It
was also stated that no independent witness was summoned to be present at the
time of the search. It was pointed out that the District Magistrate is related
to Sidh Gopal and it was suggested by Mr. Sethi that the evidence of the
District Magistrate, of the Senior Superintendent of Police and of Sidh Gopal
should not have been accepted by the High Court as true. But all the
circumstances have been taken into account by the High Court in discussing the
testimony of these witnesses and ordinarily it is not permissible for the
appellant to reopen conclusions of fact in this Court, especially when both the
lower Courts have agreed with those conclusions which relate to the credibility
of witnesses who have been believed by the trial Court which had the advantage
of seeing them and hearing their evidence. It was then contended by the
appellant that the High Court has taken into account the statement of Ram Lal
Kapoor made in a departmental proceeding in coming to a conclusion regarding
the guilt of the appellant. We do not think there is any justification for this
argument. The High Court has properly held that the evidence of Ram Lal Kapoor
dated December 16, 1952-Ex. P-11-was not admissible and has excluded it from
its consideration in discussing the guilt of the appellant. It is true that in
setting out the history of the case the High Court has referred to the
statement of Ram Lal Kapoor but that does not mean that the High Court has used
the statement of Ram Lal Kapoor for the purpose of convicting the appellant in
the present case. It was also contended by Mr. Sethi on behalf of the appellant
that the statements-Exs. P-3 an P.4-should have been excluded from
consideration. It was contended that these statements were made by the
appellant to the District Magistrate after the recovery of the money and were
bit by the provisions of s. 162 of the Criminal Procedure Code. On behalf of
the respondent Mr. Desai said that these statements are admissible because they
were made to the District Magistrate and not to a police officer and were not
during the course of investigation because the First Information Report was
lodged on September 13, 1951 at 8 30 p.m. long after the statements were made.
We do not consider it necessary to express any concluded opinion as to whether
Exs. P-3 and P-4 are admissible but even if they are excluded from
consideration there is sufficient evidence to support the conviction of the
appellant on the charges under s. 161, Indian Penal Code and s. 5(2) read with
s. 5(1)(d) of the Prevention of Corruption Act.
743 It was also submitted by Mr. Sethi that
the evidence of Sidh Gopal should not have been accepted by the High Court. It
was pointed out that the appellant had received the letter of District
Magistrate-Ex. P-1 on September 5, 1951 and it was, therefore, not likely that the
appellant should have contacted Ram Lal Kapoor and Sidh Gopal on the 18th or
19th August, 1951. There is, however, evidence in this case that Bhola Nath who
was a Salesman of M/s Mannulal Sidh Gopal was arrested in August, 1951 on the
report of the appellant and Sidh Gopal apprehended that he would also come
under the clutches of the law and his licences may also possibly be cancelled.
In any event, this is a question regarding the credibility of Sidh Gopal and it
is not open to the appellant to contest the finding of the lower courts with
regard to the credibility of that witness in this appeal.
Lastly, Mr. Sethi submitted that the
appellant was 66 years old and the offence was committed in 1951 and legal
proceedings have protracted for 15 years. Mr. Sethi, therefore, prayed that the
sentence imposed on the appellant may. be reduced. We are unable to accept this
argument. We do not consider that the sentence is excessive in the
circumstances of the case.
For the reasons already expressed, we hold
that there is no merit in this appeal which is accordingly dismissed.