State of Assam Vs. Krishna Rao 
INSC 222 (15 September 1972)
KHANNA, HANS RAJ
CITATION: 1973 AIR 28 1973 SCR (2) 339 1973
SCC (3) 227
Prevention of Corruption Act, (2 of
1947)-Section 4 (1)Presumption under-Ingredients to be satisfied for drawing
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 there under 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 appetites 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,  S.C.R. 580;
Emden v. The, State of U.P.,  2 S.C.R.
692; Dhavantrai v. State of Maha. rashtra, A.I.R. 1964 S.C. 575; Jhangan v.State
of U.P.,  3 S.C.R. 736 and S. N. Bose v. State of Bihar, referred to.
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 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
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 Engineer,
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 Engineer. 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, Planning, 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 24 1 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 persistent 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 930 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 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
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 substantially corroborated the testimony of P.W. 3. The two
witnesses not connected with the police,, Chaliha, Incometax 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.
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 at 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
Shanti Ratna Chakravarty was produced as
defence witness No.1. He was an Upper Division Clerk in C.W.E., Jorhat. According
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 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 nonplussed and there was no explanation
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
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
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 recovered.
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 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)  2 All E.R. 572. (2)  S.C.R.
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 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 crossexamination
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, thequestion 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 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 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 corroboration 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 remuneration) 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 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 gratification or thing aforesaid
is, in its opinion, so trivial that no reference of corruption may fairly be
drawn." In State of Madras v. A. Vaidianatha Iyer(1) after reproducing 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 conviction. 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)  S.C.R. 580.
(2)  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' 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. 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)  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 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
persons 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 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.