Trilok Chand Jain Vs. State of Delhi
 INSC 168 (19 August 1975)
SARKARIA, RANJIT SINGH SARKARIA, RANJIT SINGH
CITATION: 1977 AIR 666 1976 SCR (1) 348 1975
SCC (4) 761
Prevention of Corruption Act (2 of 1947) ss.
4(1) and 5(1) (2) and Indian Penal Code (Act 45 of 1860) s. 161-Scope of
presumption under s.4 (1)
An inspector of the Delhi Electric Supply
Undertaking demanded a bribe for giving the complainant a power connection for
his factory. Information having been given to the anti-corruption police a trap
was set. The inspector did not turn up at the appointed time to receive the
money, but the appellant, a permanent labourer working under him, came to the
complainant's factory, told him that he had been sent by the Inspector, and
that the money should be given to him.
'The complainant, at first, insisted that the
inspector himself should come but later gave him the money. The money was
recovered from the appellant and the inspector and the appellant were charged
with offences under the Prevention of Corruption Act. The trial court acquitted
the inspector but convicted the appellant under s. S(2) read with s. 5(1)(d) of
the Act, and under s. 161 I.P.C., with the aid of the presumption under s. 4(1)
of the Act. The conviction was confirmed by the High Court.
Allowing the appeal to this Court,
HELD : ( I ) The question whether a
government servant receiving money had the requisite incriminatory motive is
one of fact. [353H, 354A] (2) one of the essential ingredients of the offence
under s. 161, I.P.C., is that the gratification must have been received by the
accused as a motive or reward for committing an act or omission in connection
with his official functions. Even if the government servant was incapable of
showing any favour or rendering any service in connection with his official
duties, he may be guilty; but, the existence of an understanding that the bribe
was given in consideration of some official act or conduct is an important
factor bearing on the question as to whether the accused had received the
gratification as a motive or reward as mentioned in s. 161, I.P.C. [353GH] (3 )
The appellant being a mere labourer was incapable of showing any favour or
rendering any service to the complainant in connection with his official
duties. It had not been shown by the prosecution that he was in any way
officially concerned with the installation of poles or the giving of electric
connection; nor was it shown that the appellant made any representation, claim
or promise, that he would either himself or through his inspector get an
official act done for the complainant. Or that the appellant had demanded bribe
from the complainant. [353A-C, F] In the absence of any such circumstances the
conduct of the appellant was not incompatible with the role of an innocent
carrier of money without the requisite mens rea.
[353E] (4) The charge under S. 5(1)(d) also
is unsustainable because, it could not be reasonably said that the appellant
obtained the money by using corrupt or illegal means or otherwise abusing his
official position, as a public servant (5) Section 4(1) of the Prevention of
Corruption Act Provides that in the trial of an offence punishable under s.
161 or 165, I.P.C., or under cls. (a) or (b)
of 5 5(1) read with sub-s. 5(2) of the Act, if the prosecution proves that the
accused had accepted or obtained a gratification other than legal remuneration
the court has to presume that the gratification was accepted or obtained by the
accused as a motive or reward as mentioned in s. 161, I.P.C. [351-H, 52B] 349
(6) (a) The presumption, however, is not absolute and is rebuttable. The
quantum and nature of proof required to displace the presumption, varies
according to the circumstances of each case. Such proof may partake of the
shape of defence evidence adduced by the accused or, it may consist of
circumstances appearing in the prosecution evidence itself as a result of
cross-examination or otherwise. While the mere explanation given by the accused
in his examination under s. 342, Cr. P.C., may not b- enough the burden on him
to negate the presumption may stand discharged, if the effect of the material
brought on record, in its totality renders the existence of the fact to be
presumed improbable. The accused may, therefore, rebut the presumption by
showing a more preponderance of probability in his favour and it is not
necessary for him to establish his case beyond reasonable doubt. [352-CF]]
Mahesh Prasad Gupta v. State of Rajasthan, AIR 1974 S.C. 773 followed.- (b)
Further, the sole purpose of the presumption under s. 4(1) is to relieve the
prosecution of the burden of proving a fact which is an essential ingredient of
the offence under s. 5(1) and (2) of the Act and s. 161, I.P.C.
The presumption, therefore, can be used only
in furtherance of the prosecution case and not in derogation of it. [352F- G]
(c) In the present case. the statutory presumption being antithetical to the
prosecution story, namely, that it was the inspector who demanded the bribe for
showing a favour and that the payment was intended for him, could not be
availed of by the Prosecution against the appellant.
[354-CD] (7) Nor can the appellant be held
guilty of abetting the alleged attempt made by the inspector to obtain illegal
gratification. Intention to aid the commission of the crime is the gist of the
offence of abetment, and such intention on the part of the appellant is lacking
in this case. It has not been shown that the appellant was present any occasion
when the inspector demanded the bribe. [354-D- G] (8) Moreover, the principal
accused had been acquitted.
The prosecution having failed to prove that
the money had been paid to the appellant pursuant to the demand for a bribe by
the inspector, the court cannot make out a new cause for the prosecution and
hold that the amount had been.
received by the appellant on his own or for
some person other than the inspector. [355 B, D]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 116 of 1971.
Appeal by special leave from the Judgment and
order dated the 27th November, 1970 of the Delhi High Court in Crl. Appeal No.
35 of 197().
Uma Datta, for the appellant.
Govind Das and R. N. Sachthey, for the
The Judgment of the Court was delivered by
SARKARIA, J. This appeal by special leave is directed against a judgment of the
High Court of Delhi upholding the conviction of the appellant under s. 5(2)
read with s. 5(1) (d) of the Prevention of Corruption Act and s. 161, Penal
Code, recorded by the Special Judge, Delhi. The facts of the prosecution case
are as follows:
The complainant, S. K. Jain, manufactures
rubber motor parts in his factory at Shahdara. On his application, the Delhi
Electric Supply Undertaking at Gandhinagar sanctioned a power connection for
his factory. 'l`' he complainant deposited the estimate of expenses under the
9-L839 Sup. CI/75 350 terms of the sanction. In spite of it, for a period of
four months, no A steps were taken by the employees of the Undertaking to install
the poles and give the connection. S.
P. Gupta, an Inspector of the Undertaking
approached the complainant and solicited a bribe of Rs. 125/- in consideration
of giving the connection. lt was settled that Rs. 25/- would be paid on June
2(), 1968 and the balance of Rs. 100/- after the electric connection. The
complainant had no intention to pay the bribe. Consequently, he contacted S.
K. Katoch, Deputy Superintendent of the
Anti-Corruption Police on June 20, 1968 at about 1 p.m. and apprised the latter
about the demand of the bribe by Inspector Gupta. The Deputy Superintendent
recorded the complainant's statement, Ex. P.W. l/A. He then co-opted Daya Nand
Dua (PW2) and Bharat Prakash Khurana (PW 3), two clerks from the office of the
Deputy Commissioner, and formulated a scheme for entrapping Gupta. 'The Police
party reached the factory of the complainant at about 3.05 p.m. The complainant
and the Panch witnesses went inside while the Police officers waited outside.
The complainant received a message from Gupta through a Lineman that instead(l
of the 20th, he would be coming on the following, day, that the installation of
poles at the site had commenced and the complainant would be required to pay
more amount. The complainant conveyed this information to D.S.P. Katoch.
On June 21, 1968, at about 10.15 a.m., Gupta
came to the factory, along with his gang of labourers and started the
installation work. Gupta informed the complainant that he would return to the
factory either personally or send somebody else to collect the amount of Rs.
100/- at about 2 p.m. The complainant passed on this information also, to the
D.S.P. Thereafter the D.S.P. along with the aforesaid witnesses and others came
to the complainant at about 11.30 a.m. and settled the details of the trap. The
complainant produced one currency note of the denomination of Rs. 100/-.
The D.S.P. noted its No. and returned it to
the complainant with the direction that he should pay it to Gupta. Gupta
however did not turn up at 2 p.m. Instead, the appellant, a permanent labourer
working under Gupta, came to the factory and told the complainant that he had
been sent by Inspector Gupta and that the money be given to him. The
complainant said that the appellant should send Gupta to receive the money. The
appellant reiterated that he had been deputed by Gupta to collect the money and
the same be given to him.
Thereupon the complainant handed over the
currency Note of Rs. 100/- (Ex. P-l) to the appellant in the immediate presence
of P.Ws. 2 and 3. The appellant put the note in the pocket of his pants. On receiving
the agreed signal, the D.S.P. and his companions rushed in and recovered the
currency note (Ex. P-l) from the person of the appellant.
The D.S.P. then sent a report to the Police
Station on the basis of which a case was registered. The appellant was
arrested. Subsequently, on 22-6-1968, Gupta was also arrested. After obtaining
the necessary sanction, the appellant and Gupta both were sent up for trial
before the Special Judge, Delhi who acquitted Gupta but convicted the appellant
and sentenced him to one year's rigorous imprisonment.
Examined under s. 342, Cr.P.C. the appellant
admitted that at the material time he was a permanent labourer (Mazdoor) of the
351 working in Shahdara Zone. He gave this
account of the circumstances in which he had received the currency note (Ex.
Pl) from the complainant:
"At about 12-30, I had come down from
the first floor of my office and was going to my house to take my meal in the
Hotel. I was called by Gupta. He was standing near the boundary wall. He inquired
from mc as to where I was going. l told him that l was going to take my food.
He directed me that after taking my food I should visit the complainant s
factory where the labour was working and told me to ask Jain to pay the money
which Guptaji had demanded. I did not know what sort of money it was and for
what purpose it was to be paid by S. K. Jain and to be taken by Gupta. accused.
One Mitter Sell was also present at that time
when this talk took place between me and Gupta accused. I accordingly, after
taking my food went to the complainant s factory and checked the work of the
labour and then went to the complainant and asked him to pay me the money which
had been demanded by Guptaji.
. Complainant told me to send Guptaji but I
told him that he had asked me to bring the money. He therefore paid me a,
currency note of Rs. 100/- without disclosing anything that this was bribe
money to be paid to Gupta co-accused." He further admitted that soon after
the collection of this amount from the complainant, the D.S.P. came there with
his party and recovered the same currency note from his possession. He added
that he was only a labourer and was not in a position to show any favour,
whatever, to the complainant. He did not know that the note was bribe money.
He claimed to be all innocent carrier.
In defence, he examined Mitter Sen (DW 1) who
corroborated the appellant's version as to how Gupta had instructed the
appellant to collect and bring the money from the complainant.
Two charges, one under s. 5(1) (d) read with
s. 5(2) of the Prevention of Corruption Act and the other under s. 161, Penal
Code were framed against the appellant. The charges were in the alternative and
it was stated therein that the money was obtained by him either for him self or
for Gupta, or for both.
The courts below have convicted the appellant
mainly on the ground that proof of receipt of Rs. 100/- (currency note) by the
appellant from the complainant raises a presumption under s. 4(1) of the
Prevention of Corruption Act against him and the appellant has not been able to
rebut that presumption.
Section 4(1) of the Prevention of Corruption
"Wherein any trial of an offence
punishable under section 161 or section 165 of the Indian PenaI 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-s.
(2) thereof, it is proved that an accused
person has accepted or obtained, or 352 has agreed to accept or attempt to
obtain, for himself or for A 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." From a reading of the above provision it is clear that
its operation, in terms, is confined to any trial of an offence punishable
under s. 161 or s. 165, Penal Code or under clause (a) or (b) of s. 5(1) read
with sub-section (2) of that section of the Act. If at such a trial, the
prosecution proves that the accused has accepted or obtained gratification
other than legal remuneration, the court has to presume the existence of the
further fact in support of the prosecution case, viz., that the gratification
was accepted or obtained by the accused as a motive or reward such as mentioned
in s. 161, Penal Code. The presumption however, is not absolute. It is
rebuttable. The accused can prove the contrary. The quantum and the nature of
proof required to displace this presumption may vary according to the
circumstances of each case. Such proof may partake the shape of defence
evidence led by the accused, or it may consist of circumstances appearing in
the prosecution evidence itself, as a result of cross-examination or otherwise.
But the degree and the character of the burden of proof which s. 4(1) casts on
an accused person to rebut the presumption raised there under, cannot be
equated with the degree and character of proof which under s. 101, Evidence Act
rests on the prosecution.. While the mere plausibility of an explanation given
by the accused in his examination under s. 342, Cr.P.C. may not be enough, the
burden on him to negate the presumption may stand discharged, if the effect of
the material brought on the record, in its totality, renders the existence of
the fact presumed, improbable. In other words, the accused may rebut the
presumption by showing a mere preponderence of probability in his favour; it is
not necessary for him to establish his case beyond a reasonable doubt-see
Mahesh Prasad Gupta v. State of Rajasthan(1).
Another aspect of the matter which has to be
borne in mind is that the sole purpose of the presumption under s.
4(1) is to relieve the prosecution of the
burden of proving a fact which is an essential ingredient of the offences under
s. S (1) (2) of the Prevention of Corruption Act and s. 161, Penal Code. The
presumption therefore can be used in furtherance of the prosecution case and
not in derogation of it. If the story set up by the prosecution inherently
militates against or is inconsistent with the fact presumed, the presumption
will be rendered sterile from its very inception, if out of judicial courtesy
it cannot be rejected out of hand as still born.
Let us now consider the facts of the present
case in the light of the principles enunciated above. The testimony of its star
witness, S. K. (1) A. I. R. 1974 S. C. 773.
353 Jain (P.W. 1) is that it was Inspector
Gupta who had demanded that - money as a motive or reward tor expediting the
installation of the power connection and that the money was handed over to the
appellant only for transmission to Gupta in pursuance of the latter's
instructions given to the complainant earlier in the morning. It is not the
case of the complainant that the appellant had ever demanded any bribe from the
complainant, or that the appellant was present on any occasion on which Gupta
had demanded the bribe. Nor has it been shown by the prosecution that the
appellant was in any way officially concerned with the installation of the
poles or the giving of the electric connection. At the material time according
to the appellant he was working as a mere labourer or Mazdoor in the first
floor of the D.E.S.U. Office at Shahdara. This fact is not controverted by the
prosecution. Of course, it is in evidence that on coming to the factory of the
complainant at about 2 P.M., the appellant first went to see the labour working
at the installation site and then went to the complainant to receive the money
saving that he has been sent by Gupta to fetch it.
Mr. Gobind Das, the learned Counsel for the
State contends that this conduct of the appellant in checking the labour,
showed that he was not an innocent carrier of the money for Gupta but knew that
it was being obtained as a bribe in connection with the installation of the
power connection. In any case, maintains the Counsel the appellant was guilty
of abetment of an offence under sec, 161 Penal Code and s. 5 of the Act.
We are unable to accede to this contention.
In our opinion, this Act of the appellant was a neutral circumstance. It was
not indicative of a guilty mind. The appellant explained that he had checked
the labour working at site because he had been asked to do so by Inspector
Gupta. This conduct of the appellant, therefore, was no ground to hold that he
had received the G.C. Note of Rs. 100/- with the requisite mens rea. Evidently
in collecting this currency note from the complainant he was Acting only as an
innocent tool of Gupta. He was a mere labourer. Even in that humble position,
he was not a member of the gang working at the installation site in the factory
of the complainant. He was not concerned ill his official capacity with the
installation work or the giving of power connection. Being an unconcerned
menial, he was incapable of showing any favour or rendering any service to the
complainant in connection with his official duties. One of the essential
ingredients of the offence under s. 161, I.P.C. with which the appellant stands
charged is, that the gratification must have been received by the accused as "a
motive or reward" for committing an act or omission in connection with his
official functions. lt must be shown that there was an understanding that the
bribe was given in consideration to some official act or conduct. It is true
that in law the incapacity of the government servant to show any favour or
render any service in connection with his official duties does not necessarily
take the case out of the mischief of these penal provisions. Nevertheless, it
is an important factor bearing on the question as to whether the accused had
received the gratification as a motive or reward for doing or for hearing to do
any official act or for showing any favour or disfavour in the exercise of his
official functions. This question as to whether the government servant receiving
the money 354 had the requisite incriminatory motive is one of fact. Could it
be reasonably said in the circumstances of the instant case that the money was
handed over to the appellant or received by him as a motive or reward such as
mentioned in s. 161, Penal Code ? It is nobody's case that while collecting the
sum of Rs, 100/-, the appellant made any representation, claim or promise,
whatever, that he would either himself or through Gupta get an official act
done for the complainant. Indeed, a prudent businessman like Jain would never
pay such a substantial amount as a bribe to a mere Class IV servant in
consideration of any promise of favour or service held out by the latter. Such
a tall claim or promise to do favour or service by a menial would be manifestly
quixotic. It would not pass muster. Indeed the complainant did not hand over
the money till he after repeated enquiry, was convinced that the appellant was
asking for money not for himself but for Gupta and had been sent by the latter
to collect an(l fetch it from the complainant. The conduct attributed by P.W. 1
to the appellant was not incompatible with the role of an innocent carrier.
Thus, paradoxical as it may seem, the very story propounded by the complainant
(P.W. 1) negates the presumption, nipping it-as it were-in the bud.
Be that as it may this statutory presumption
being antithetical to the prosecution story, could not be availed of by the
prosecution. This being the position, the appellant could not be held guilty of
the charge with the aid of s. 4(1) of the Act.
Nor can the appellant be held guilty of
abetting the alleged attempt made by Gupta to obtain the illegal gratification.
Intention to aid The commission of the crime, is the gist of the offence of
abetment by aid. Such intention, on the part of the appellant was lacking in
this case. Moreover, Gupta, the principal, has been acquitted and exonerated of
committing the offending act, the commission of which is alleged to have been
aided by the small fry, the appellant.
The charge under s. S (1) (d) of the Act also
cannot be sustained for the reason that in the peculiar circumstances or the
case, it could not be reasonably said that the appellant had obtained the
currency-note by using some corrupt or illegal means or otherwise abusing his
official position as a public servant. This point was canvassed on behalf of
the appellant before the High Court but was negatived by it in these terms:
"In this case the appellant had told the
complainant that he had been sent by Inspector Gupta and that he should pay the
money. It has been held by the Special Judge while acquitting Inspector Gupta
that he was not the person who had sent the appellant to collect any money from
the complainant. Before contacting the complainant the appellant had checked
the labour which was working in the factory for installation of the lines for
electricity. All this showed that he represented himself to the complainant as
a person connected with the Department concerned. He also used corrupt means to
ask the money on behalf of Inspector Gupta and thus this ingredient was
satisfied." We find ourselves unable to agree with this reasoning.
We have already noticed above that this was
not the case of the prosecution? as 355 put in evidence, that the appellant had
demanded the money on his own account by any express or implied representation
to get any favour or service done to the complainant.
Rather, the positive case set up by the
prosecution in evidence was that the money was demanded by Gupta and was
received by the appellant on his behalf pursuant to the instructions of Gupta
given to the complainant earlier.
Therefore, if the prosecution has failed to
prove that the money had not been paid to the appellant pursuant to any demand
of bribe made by Gupta, the court cannot make out a new case for the
prosecution to hold that the amount had been received by the appellant on his
own or for some person other. than Gupta. We have already held that the
appellant was a mere labourer who was not concerned with the installation work
at the site or with the giving of the power connection to the complainant. In
view of the categorical position taken by the prosecution in evidence, it does
not now lie in their month to may that the appellant must have received the
money for himself or for some other person; much less can it be said that the
appellant has abused his official position or has used any illegal means in
acting as an innocent carrier for Gupta. Thus, the essential ingredient of the
offence under s. 5(1) (d) was lacking in this case.
We are therefore of the opinion that on the
facts of this case, the prosecution had failed to bring home the charges to the
appellant beyond a reasonable doubt.
Accordingly we allow this appeal, set aside
the conviction of the appellant and acquit him of the charges levelled against
V.P.S. Appeal allowed.