Vs. The State of Tamil Nadu  INSC 124 (5 April 1990)
Beevi, M. (J) Fathima Beevi, M. (J) Rangnathan, S.
1990 AIR 1269 1990 SCR (2) 335 1990 SCC (3) 257 JT 1990 (2) 46 1990 SCALE
of Corruption Act, 1947: Sections 4(1), 5(D(d) and 5(2)--Accused shown to have
accepted money which was not legal remuneration--Proves guilty
conduct--Rebuttal must be by explanation which must be true, not merely plau- sible.
appellant was an Accountant-cum-Headclerk in the Forest Training
School, PW-3 the
Principal of the training school, and PW-I the canteen contractor. The
prosecution alleged that on the basis of a complaint made by the appel- lant
that the food served in the canteen was substandard, PW-3 issued a show cause
notice to PW-I, as to why the licence for the canteen should not be cancelled
and that thereafter the appellant sent for PW-I and demanded a bribe of Rs.
I00. As the appellant pressed the demand from PW-1, the latter made a complaint
to PW-6, the inspector, who arranged a trap.
trap was arranged. PW-I handed over the money to the appellant, who received
the same. PW-6 conducted the phe- nolphthalein test with reference to the
fingers of the appellant. The test was positive. The currency notes were
seized, and the appellant arrested chargesheeted.
Trial Judge accepted the prosecution evidence, rejected the pleas of the
appellant that PW-1 had returned the amount of Rs. 100 due to him, that there
had been no demand for a bribe as there had been no occasion for doing so, and
appellant appealed to the High Court and contended that there was no
independent evidence regarding the demand, the messenger who had contacted PW-1
at the behest of the appellant had not been examined, the solitary evidence of
PW-I is insufficient and that the explanation offered by the appellant was
probable and that there is no conclusive evidence to hold that the appellant
was guilty. The High Court took the view that the recovery of the currency
notes from the appellant prove his guilty conduct, in view of the presumption
arising under section 4(1) 01' the Prevention of Corruption Act and that the
same has not been rebutted and held that though the conviction under 335 section
161 I.P.C. and section 5(2) of the Prevention of Corruption Act, 1947 is to be
maintained, no separate sen- tence need be awarded under section 161 I.P.C. It,
accord- ingly, confirmed the conviction of the appellant and sen- tenced him to
undergo rigorous imprisonment for 15 months.
appeal to this court, it was contended that the appellant had a consistent case
even from the earliest opportunity, that the currency notes found in his
possession was the money returned by PW-I, and that the presumption, if any,
arising under section 4 was rebutted, and the convic- tion cannot therefore be
the appeal, this Court
1. The appellant has not even by preponderance of probability succeeded in
rebutting the presumption under section 4(1) of the Prevention of Corruption
Court has no choice once it is established that the accused person has received
a sum of money which was not due to him as a legal remuneration, but to draw a presump-
tion that the person received the money as a motive of reward. However, it is
open to that person to show that though that money was not due to him as legal
remuneration, it was legally due to him in some other manner or that he
received it under a transaction or an arrangement which was lawful. The
explanation offered by the person should be a true one and not one which is
merely plausible. [339B-C; F] Dhanvantrai Balwantrai Desai v. State of Maharashtra, AIR 1964 SC 575, referred to.
APPELLATE JURISDICTION: Criminal Appeal No. 8 18 of 1979.
the Judgment & Order dated the 27.10.1979 of the Madras High Court in Crl.
A. No. 4 of 1977.
and K.R. Nambiar for the Appellant.
Krishnamurthy for the Respondent.
Judgment of the Court was delivered by FATHIMA BEEVI, J. This appeal is
directed against the judgment dated 27.10.1979 of the High Court of Madras con-
firming the conviction of the appellant under section 161, I .P.C. and under
section 336 5(2) read with section 5(1)(d) of the Prevention of Corrup- tion
Act. The appellant had been sentenced to undergo R.I.
months under section 5(2) read with section 5(1)(d) of the Prevention of
Corruption Act with no separate sen- tence under section 161 I.P.C. The brief
facts of the case are as under.
appellant, Sunderamoorthy was an Accountant-cum- Headclerk in the Tamil Nadu Forest Training School at Vaigai Dam. He took charge of the office on 6.10.1975
and had been residing in a house opposite the training school. PW-3, the
Principal of the training school issued Ex. P-2 show cause notice to the PW-1, Venkataswamy,
the canteen contractor, as to why his licence for running the canteen should
not be cancelled. This was on the basis of a complaint made by the appellant
that the food served in the canteen was substand- ard. The appellant had taken
food in the canteen for two days and being dissatisfied discontinued the
practice before the notice was issued. The prosecution case is that the accused
thereafter sent for PW- 1, informed him that he would help him in restoring the
licence and demanded a bribe of Rs. 100. On 21.10.1975, the appellant is stated
to have pressed the demand to PW- 1. The latter made a complaint to PW-6 who
thereupon arranged a trap. As instructed, PW-1 was ready with ten rupees currency
notes. PW-6 after drawing up a mahazar in the presence of PW-2, Jaganathan,
Assistant of the Office of the Special Tehsildar, Usilampatti directed PW-1 to
give the notes to the appellant. PW-1 handed over the money to the appellant
who received the same. When PW- 1 emerged, PW-6 along with PW-2 confronted the
appellant. The appellant produced the currency notes. PW-6 conducted the
phenolphthalein test with reference to the fingers of the appellant. The test
was positive, the currency notes were seized and the appellant arrested. PW-3,
the Principal produced the concerned file relating to show cause notice, from
the house of the appellant on the same day. Finally, the appellant was chargesheeted.
trial, the prosecution witnesses supported the case. PW- 1 affirmed the fact
that the appellant made the demand and had also received the amount on 22.10.
1975. The recovery of the currency notes from the appellant was not challenged.
The plea of the appellant was that PW- 1 had returned the amount due to him and
there had been no demand for a bribe as there had been no occasion for doing
so. The Trial Court accepted the prosecution evidence, rejected the plea of the
appellant and recorded the conviction. Before the High Court, the .contentions
of the appellant were that there was no independent evidence regarding the
demand, the messenger who had contacted PW-1 at the 337 behest of the appellant
had not been examined, the solitary evidence of PW-1 is insufficient, the
explanation offered by the appellant was probable and there is no conclusive evi-
dence to hold that the appellant. was guilty. It was also urged that the
appellant being new in the office could exert little influence on the Principal
and the whole story is, therefore improbable. These contentions did not find favour
with the High Court. It took the view that the evidence of PW- 1 find
corroboration in the testimony of PW-2 and 6 and the contemporary records. The
recovery of the currency notes from the appellant proves the guilty conduct of
the appel- lant in view of the presumption arising under section 4(1) of the
Prevention of Corruption Act which has not been rebutted. The decisions of the
Court in State of Rajasthan v. Mohamed Habeeb,  Crl. L.J.
703; C.I. Ernden v. State of Uttar Pradesh, AIR 1960 SC 548 and Lohana Kantilal
v. State, AIR 1954 Saurashtra 12 1 were referred to. The High Court thought
that though the conviction under section 161 I.P.C. and section 5(2) of the
Prevention of Corruption Act is to be maintained, no separate sentence need be
award- ed under section 161 I.P.C.
appellant has reiterated the contentions before us.
learned counsel appearing for the appellant, however, maintained that the
appellant had a consistent case even from the earliest opportunity that the
currency notes found in his possession was the money returned by PW-1, the cir-
cumstances of the case would probabalise this case of the appellant and the
presumption, if any, arising under section 4 is rebutted and the conviction
cannot therefore be sus- tained. PW-6 has stated at the time of the seizure the
explanation offered by the appellant was that PW-1 had returned the loan and
that he had given the money for the Dipawali. The case that has been developed
in the course of the trial is not that of a loan transaction but payment of an
advance of Rs. 125 in the canteen when the appellant started to take food
there. The case of Dipawali gift or return of a loan given to PW- 1 has not
been even suggested.
cannot, therefore, be said that there had been consistent explanation for the
appellant. PW-3, the Principal has averred in unequivocal terms that Ex.P-2
memo had been issued on the basis of the complaint received from the appellant
that on getting the explanation from PW- 1 he on 18.10.1975 itself passed
orders and closed the file. The order made was not disclosed to PW-1 and till 22.10.1975,
the file itself was kept by the appellant in his personal custody. He had
thereafter received the amount of Rs. 100 from PW- 1. This conduct of the appellant
is clearly incon- sistent with the transaction of loan or return of money by
This Court observed in Dhanvantrai Balwantrai Desai v. State of Maharashtra,
AIR 1964 SC 575 as under:
any gratification (other than legal gratification) or any valuable thing is
proved to have been received by an accused person the court is required to draw
a presumption that the person received that thing as a motive of reward such as
is mentioned in section 161, I.P.C. Therefore, the Court has no choice in the
matter, once it is established that the accused person has received a sum of
money which was not due to him as a legal remuneration. Of course, it is open
to that person to show that though that money was not due to him as legal
remuneration it was legally due to him in some other manner or that he had
received it under a transaction or an arrangement which was lawful. The burden
resting on the accused person in such a case would not be as light as it is
where a presumption is raised under section 114 of Evidence Act and cannot be
held to be discharged merely by reason of the fact that the explanation offered
by the accused is reasonable and probable. it must further be shown that the
explanation is a true one. The words 'unless the contrary is proved' which
occur in this provision make it clear that the presumption has to be rebutted
by 'proof' and not by a bare explanation which is merely plausible. A fact is
said to be proved when its existence is directly established or when upon the
material before it the Court finds its existence to be so probable that a
reasonable man would act on the supposition that it exists. Unless, there-
fore, the explanation is supported by proof, the presumption created by the
provision cannot be said to be rebutted." On a careful consideration of
the facts and circum- stances, we are not satisfied that the appellant had even
by preponderance of probability succeeded in rebutting the presumption.
argument that clause (d) of section 5(1) of the Prevention of Corruption Act is
not attracted on the proved facts is also not impressive.
find no merit in the appeal. It is accordingly dismissed.