of Andhra Pradesh Vs. V. Vasudeva Rao  Insc 560
(13 November 2003)
Raju & Arijit Pasayat Arijit Pasayat,J
a strange co-incidence that the Prevention of Corruption Act, 1947 (hereinafter
referred to as the 'Act') was enacted in the year of our country's
is one of the most talked about subjects today in the country since it is
believed to have penetrated into every sphere of activity. It is described as
wholly widespread and spectacular.
as such has reached dangerous heights and dangerous potentialities. The word
'corruption' has wide connotation and embraces almost all the spheres of our
day to day life the world over. In a limited sense it connotes allowing
decisions and actions of a person to be influenced not by rights or wrongs of a
cause, but by the prospects of monetary gains or other selfish considerations.
Avarice is a common frailty of mankind, and while Robert Walpole's observation
that every man has a price, may be a little generalized, yet it cannot be
gainsaid that it is not far from truth. Burke cautioned "Among a people
generally corrupt, liberty cannot last long".
this appeal, the State of Andhra Pradesh
has questioned legality of judgment rendered by a learned Single Judge of
Andhra Pradesh High Court directing acquittal of the respondent-V. Vasudeva Rao
(hereinafter referred to as the 'accused') who faced trial for alleged
commission of offences punishable under Section 161 of the Indian Penal Code,
1860 (for short the 'IPC') and Section 5(2) read with Section 5 (1)(d) of the
Act. He was sentenced to undergo rigorous imprisonment for two years and to pay
a fine of Rs.5,000/- on each count by the trial Judge i.e. the Principal
Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad.
version which led to the trial of the case is essentially as follows:
accusedrespondent was substantively posted as Assistant Controller, Weights and
Measures in the year 1988-89. He was kept in charge of superior post of Deputy
Controller, Weights and Measures, Warangal in the year 1988. He was working as such between the period 31.1.1988
to 8.6.1988 and was thus a public servant within the meaning of Section 21 IPC.
Complainant-D. Raghunath was working as Inspector of Weights and Measures at Warangal between August 1985 to April 1988.
On 3.4.1988, the accused sent for the complainant-Raghunath and hinted that his
transfer from Warangal to Karimnagar was on the cards.
requested him not to transfer him to Karimnagar as he had personal
difficulties. It is alleged that the accused thereupon demanded a bribe of
Rs.10,000/- for retaining him at Warangal itself.
showed his inability to pay such a large amount.
accused then reacted by saying that in case the said amount was not paid to
him, the complainant-Raghunath would be transferred. He next asked Raghunath to
give choice of posting in case he was to be transferred from Warangal. Complainant then requested that if
at all he was to be transferred he may be posted to Jangaon. For such desired
posting the accused made a demand of Rs.2,000/- as a bribe from the
complainant. Complainant agreed to pay the said amount. On 13.4.1988 Raghunath
received posting orders accordingly. The accused on the very same night made a
demand of Rs.2,000/- from the complainant.
requested that he may be allowed to make the payment in instalments and,
promised that he would pay Rs.1,000/- in first instalment and the remaining
would be paid during the next visit of the complainant to Warangal. In reality, complainant was not
willing to make any payment of bribe amount; and therefore went and lodged a
complaint on 14.5.1988 with DSP of Anti Corruption Bureau in the matter.
D.S.P. then arranged for a trap for catching the accused and accordingly the
usual procedure was adopted, and complainant was asked to bring the amount for
being paid to the accused, on the next day in the office of DSP. After the
currency notes were produced by the complainant on the next day in office, they
were smeared with phenolphthalein powder after selector the mediator's name.
Later, complainant accompanied by policy party inclusive of mediator went
towards the office of accused. Complainant entered in and passed the amount to
the accused, and thereafter gave a pre-planned signal to the raiding party. The
raiding party then entered and the tainted amount was found to be possessed by
the accused. After usual panchanama etc. the case was registered against the
accused and he was prosecuted before the learned Special Judge for ACB cases at
Hyderabad. Thirteen witnesses were examined
to substantiate the accusations.
accused pleaded innocence. His defence was that he had never taken or accepted
any amount by way of bribe. The amount of Rs.1,000/- was advanced by way of
hand loan to the complainant-Raghunath who died some times around July, 1990.
There was no acceptance of any bribe money. Four witnesses were examined to
further the plea of innocence. As noted above, the complainant-Raghunath had
died and as a result he could not be examined as a witness at the time of trial
before the trial Court.
Special Judge on the basis of evidence adduced held that though the
complainant-Raghunath could not be examined there was sufficient evidence
otherwise to prove that the accused had made demand of the bribe amount as
alleged by the prosecution and he in fact received the tainted amount of
Rs.1,000/- on the date of trap from the complainant-Raghunath. The plea that he
had given a hand loan was held to have not been established. The conviction and
sentence were challenged in appeal before the High Court.
High Court came to hold that there was no material to show that any demand was
made for the amount as bribe. It was therefore observed that Section 4 of the
Act has no application. The evidence of PW-6, the Panch and that of the
concerned D.S.P. (PW-11) was found not sufficient to further the prosecution
version. It was noted that as per the evidence of Panch (PW-6) and that of the
DSP (PW-11) the signal was given by the deceased-Raghunath at about 9.50 a.m. Both of them had stated in their evidence that they
have left the DSP's office at about 9.05 a.m. According to the High Court, the complainant-Raghunath must have been
inside the office of the appellant for considerable length of time and there is
absolutely no evidence as to what was going on during all this period of more
than 15 to 20 minutes. Though it was held that the theory of hand loan as
advanced by the accused is not convincing and may not be accepted, yet the
prosecution was required to establish by cogent and convincing evidence that
the accused had demanded the amount and that towards such demand the
decoy-witness had gone and paid the amount and it was accepted as such. Further
the High Court observed that though there was no explanation offered for the
presence of phenolphthalein powder that was not sufficient to hold the accused
it was observed that the prosecution was not relieved of its duty to prove
acceptance of money by accused merely because the accused stated in his
explanation that the amount seized was towards re- payment of loan. The proof
of prosecution case must precede the stage of examination of accused and that
there was no evidence to prove acceptance of money by the appellant the
presumption available under Section 4 was still born and what was stated in the
statement of the accused under Section 313 of the Code of Criminal Procedure,
1973 (for short the 'Code') does not become evidence. With these findings, the
conviction and sentence were set aside.
appeal, learned counsel for the State submitted that the approach of the High
Court is erroneous. The presumption under Section 4 of the Act was clearly
available particularly when there was no denial about recovery of the money. In
fact the positive stand of the accused was that the money had been received by
him, but as an act of receiving back the money advanced. It was further
submitted that even if presumption is not available the Court can presume that
in ordinary course most probable inference was supportable by the evidence on
response, learned counsel for the accused submitted that the High Court's
conclusions are on terra firma. When the evidence on record does not establish
any demand mere recovery would not suffice. The High Court has also analysed
the factual position to conclude that presence of the phenolphthalein powder is
not an incriminating circumstance. What is important for the purpose of the presumption
under Section 4 of the Act is that the amount must have been received as
gratification. There is no evidence in that regard.
was placed on V.K. Sharma v. State (Delhi Admn.) (1975 (1) SCC 784), Sita Ram
v. The State of Rajasthan (1975 (2) SCC 227) and Suraj Mal v.
State (Delhi Admn.) (1979(4) SCC 725) to contend
that mere recovery in the absence of any evidence to show payment of money was
not sufficient. Mere recovery without proof of its payment by or on behalf of
the complainant would not bring in application of Section 4 of the Act.
appreciating rival stands it would be proper to quote Section 4(1) of the Act,
which reads as follows:
Presumption where public servant accepts gratification other than legal
remuneration.-(1) Where in any trial or an offence punishable under Section 161
or Section 165 of the IPC 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."
Before proceeding further, we may point out that the expressions "may
presume" and "shall presume" are defined in Section 4 of the
Indian Evidence Act, 1872 (in short the 'Evidence Act'). The presumptions
falling under the former category are compendiously known as "factual
presumptions" or "discretionary presumptions" and those falling
under the latter as "legal presumptions" or "compulsory
presumptions". When the expression "shall be presumed" is employed
in Section 4(1) of the Act, it must have the same import of compulsion.
the sub-section deals with legal presumption, it is to be understood as in terrorem
i.e. in tone of a command that it has to be presumed that the accused accepted
the gratification as a motive or reward for doing or forbearing to do any
official act etc., if the condition envisaged in the former part of the section
is satisfied. The only condition for drawing such a legal presumption under
Section 4 is that during trial it should be proved that the accused has
accepted or agreed to accept any gratification. The Section does not say that
the said condition should be satisfied through direct evidence. Its only
requirement is that it must be proved that the accused has accepted or agreed
to accept gratification. Direct evidence is one of the modes through which a
fact can be proved. But that is not the only mode envisaged in the Evidence
Act. (See M. Narsinga Rao v. State of A.P.(2001
(1) SCC 691).
of the fact depends upon the degree of probability of its having existed. The
standard required for reaching the supposition is that of a prudent man acting
in any important matter concerning him.
Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911 (1) KB 988)
observed as follows:
does not mean proof to rigid mathematical demonstration, because that is
impossible; it must mean such evidence as would induce a reasonable man to come
to a particular conclusion".
said observation has stood the test of time and can now be followed as the
standard of proof. In reaching the conclusion the Court can use the process of
inferences to be drawn from facts produced or proved. Such inferences are akin
to presumptions in law. Law gives absolute discretion to the Court to presume
the existence of any fact which it thinks likely to have happened. In that
process the Court may have regard to common course of natural events, human
conduct, public or private business vis-`-vis the facts of the particular case.
The discretion is clearly envisaged in Section 114 of the Evidence Act.
is an inference of a certain fact drawn from other proved facts. While
inferring the existence of a fact from another, the Court is only applying a
process of intelligent reasoning which the mind of a prudent man would do under
similar circumstances. Presumption is not the final conclusion to be drawn from
other facts. But it could as well be final if it remains undisturbed later.
Presumption in law of evidence is a rule indicating the stage of shifting the
burden of proof.
certain fact or facts the Court can draw an inference and that would remain
until such inference is either disproved or dispelled.
the purpose of reaching one conclusion the Court can rely on a factual
presumption. Unless the presumption is disproved or dispelled or rebutted the
Court can treat the presumption as tantamounting to proof.
as a caution of prudence we have to observe that it may be unsafe to use that
presumption to draw yet another discretionary presumption unless there is a
statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v.
State of Maharashtra (1998 (7) SCC 337) "A presumption can be drawn only
from facts and not from other presumptions by a process of probable and
(a) to Section 114 of the Evidence Act says that the Court may presume that
"a man who is in the possession of stolen goods soon after the theft is
either the thief or has received the goods knowing them to be stolen, unless he
can account for his possession".
illustration can profitably be used in the present context as well when
prosecution brought reliable materials that there was recovery of money from
the accused. In fact the receipt and recovery is accepted.
other factor is the acceptability of the plea of loan, which the High Court
itself has not held cogent or credible.
note that a three-Judge Bench in Raghubir Singh v. State of Punjab (1974 (4)
SCC 560) held that the very fact that the accused was in possession of the
marked currency notes against an allegation that he demanded and received the
amount is "res ipsa loquitur".
Lal v. State (Delhi Admn.) (1980 (2) SCC 390) it was
observed that there is no requirement to prove passing of money by direct
evidence. It may also be proved by circumstantial evidence. In Madhukar Bhaskarrao
Joshi v. State of Maharashtra (2000 (8) SCC 571) it was observed
premise to be established on the facts for drawing the presumption is that
there was payment or acceptance of gratification. Once the said premise is
established the inference to be drawn is that the said gratification was
accepted "as motive or reward" for doing or forbearing to do any
official act. So the word "gratification" need not be stretched to
mean reward because reward is the outcome of the presumption which the court
has to draw on the factual premise that there was payment of gratification.
This will again be fortified by looking at the collocation of two expressions
adjacent to each other like "gratification or any valuable thing". If
acceptance of any valuable thing can help to draw the presumption that it was
accepted as motive or reward for doing or forbearing to do an official act, the
word "gratification" must be treated in the context to mean any
payment for giving satisfaction to the public servant who received it".
to be noted that decisions relied upon by the learned counsel for the accused
were considered in Narsinga Rao's case (supra) and it was held that the
principles had no application as the findings recorded depend upon the veracity
of the testimony of the witnesses, so far as Suraj Mal's case (supra) is
concerned, and the observations in Sita Ram's case (supra), were to be confined
to the facts of that case and no legal principle for future application could
be discerned therefrom.
Black's Law Dictionary, "gratification" is defined as "a
recompense or reward for services or benefits, given voluntarily, without
solicitation or promise". But in Oxford Advance Learner's Dictionary of
Current English the said word is given the meaning "to give pleasure or
satisfaction to". Among the above two descriptions for the word
"gratification" with slightly differing nuances as between the two,
what is more appropriate for the context has to be found out.
context in which the word is used in Section 4(1) of the Act is, hence,
Mahboobkhan Pathan v. State of Maharashtra
(1997 (10) SCC 600) this Court has taken the same meaning for the word
"gratification" appearing in Section 4(1) of the Act. We quote the
The primary condition for acting on the legal presumption under Section 4(1) of
the Act is that the prosecution should have proved that what the accused
received was gratification. The word 'gratification' is not defined in the Act.
Hence, it must be understood in its literal meaning. In the Oxford Advanced
Learner's Dictionary of Current English, the word 'gratification' is shown to
have the meaning 'to give pleasure or satisfaction to'.
word 'gratification' is used in Section 4(1) to denote acceptance of something
to the pleasure or satisfaction of the recipient." What is the concept of
gratification has been succinctly stated by this Court in The State of Assam v.
Krishna Rao (1973 (3) SCC 227), in following illuminating words:
our opinion, there is merit in the appellant's contention that the High Court
has taken an erroneous view of Section 4 of the Prevention of Corruption Act.
That section reads:
Presumption where public servant accepts gratification other than legal
Where in any trial or an offence punishable under Section 161 or Section 165 of
the IPC 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.
Where in any trial of an offence punishable under Section 165-A 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 IPC or as the case may be without consideration or for a
consideration which he knows to be inadequate.
Notwithstanding anything contained in sub-sections (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
inference of corruption may fairly be drawn."
State of Madras v. A. Vaidiaratha Iyer (1958 SCR 580) after reproducing the
relevant provisions of Section 4 of the Act this Court observed that where it
is proved that a gratification has been accepted the presumption under Section
4 of the 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 Section 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.I. Emden v. The
State of U.P. (AIR 1960 SC 548) the appellant who
was working as a local foreman, was found to have accepted a sum of Rs.375 from
a railway contractor.
appellant's explanation was that he had borrowed the amount as he was in need
of money for meeting the expenses of the clothing of his children who were studying
in school. The Special Judge accepted the evidence of the contractor and held
that the money had been taken as a bribe, that the defence story was improbable
and untrue, that the presumption under Section 4 of the Act had to be raised
and that the presumption had not been rebutted by the appellant and accordingly
convicted him under Section 161 IPC and Section 5 of the Act. On appeal the
High Court held that on the facts of that case the statutory presumption under
Section 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:
the presumption under Section 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,
even if the presumption arose it was rebutted when the appellant offered a
reasonably probable explanation.
Court, dealing with the presumption under Section 4, observed that such
presumption 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 Section 4(1) was to be given its literal dictionary meaning
of satisfaction or appetite or desire; it could not be construed to mean money
paid by way of a bribe. The High Court was justified in raising the presumption
against the appellant as it was admitted that he had received the money from
the contractor and the amount received was other than legal remuneration. 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 (AIR 1964 SC 575) it was observed that in order to
raise the presumption under Section 4(1) of the 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 thereunder must be raised. In Jhangan
v. State of U.P. (1968 (3) SCR 766) the above
decisions were approved and it is observed that mere receipt of money is
sufficient to raise the presumption under Section 4(1) of the Act."
C.I. Emden v. State of Uttar Pradesh (AIR 1960 SC 548) and V.D. Jhangan v.
State of Uttar Pradesh (1966 (3) SCR 736) it was observed that if any money is
received and no convincing, credible and acceptable explanation is offered by
the accused as to how it came to be received by him, the presumption under
Section 4 of the Act is available. When the receipt is admitted it is for the
accused to prove as to how the presumption is not available as perforce the
presumption arises and becomes operative.
the factual position is examined in the background of legal principles culled
out from various decisions of this Court, the inevitable conclusion is that the
High Court's judgment is indefensible.
aside the judgment and hold that the accused was rightly convicted under
Section 161 IPC and Section 5 (2) read with Section 5 (1)(d) of the Act by the
to the question of sentence, learned counsel for the accused submitted that the
accused is presently aged 75 years. At the relevant point of time, the minimum
sentence was one year and for special reasons this sentence could be reduced.
In a case involving acceptance of illegal gratification there is no scope for
tentacles of corruption are spreading fast in the society corroding the moral fibre
and consequentially in most cases the economic structure of the country. It has
assumed alarming proportions in recent times.
the occurrence at hand took place nearly 14 years back, yet as noted at the
threshold, the Act was brought into anvil in the year of country's
independence. The object appeared to be to nip the propensity for being corrupt
in the bud. The growth of corruption has to a great extent frustrated the
purpose for which the Act was enacted, and both the Act and its successor Act
in 1988 do not appear to have curbed the growth of corruption, and to have
achieved the intended results.
observed in Madhukar's case (supra), there is no such proviso as in Section
5(2) of the earlier Act and no power whatsoever is given to the Court to impose
a sentence less than the minimum, even if there are special reasons for doing
so. Parliament fixed the minimum sentence of imprisonment of one year even
under the Act of 1947 by making an amendment to it in 1958 for which the
legislative language is apparently peremptory i.e. "shall not be less than
one year". The proviso is in the form of a rare exception by giving power
to the Court for reducing the imprisonment period below one year only when
there are "special reasons" and the law required that those special
reasons must be recorded in writing by the Court.
corruption was sought to be eliminated from the polity all possible stringent
measures are to be adopted within the bounds of law.
such measure is to provide condign punishment. Parliament measured the
parameters for such condign punishment and in that process wanted to fix a
minimum sentence of imprisonment for giving deterrent impact on other public
servants who are prone to corrupt deals. That was precisely the reason why the
sentence was fixed as 7 years and directed that even if the said period of
imprisonment need not be given the sentence shall not be less than the
imprisonment for one year. Such a legislative insistence is reflection of
Parliament's resolve to meet corruption cases with a very strong hand and to
give signals of deterrence as the most pivotal feature of sentencing of corrupt
public servants. All public servants were warned through such a legislative
measure that corrupt public servants have to face very serious consequences. If
on the other hand any public servant is given the impression that if he
succeeds in protracting the proceedings that would help him to have the
advantage of getting a very light sentence even if the case ends in conviction,
we are afraid its fallout would afford incentive to public servants who are
susceptible to corruption to indulge in such nefarious practices with immunity.
Increasing the fine after reducing the imprisonment to a nominal period can
also defeat the purpose as the corrupt public servant could easily raise the
fine amount through the same means.
present case, how could the mere fact that this was pending for such a long
time be considered as a "special reason"? That is a general feature
in almost all convictions under the Act and it is not a speciality of this
particular case. It is the defect inherent in implementation of the system that
longevity of the cases tried under the Act is too lengthy. If that is to be
regarded as sufficient for reducing the minimum sentence mandated by Parliament
the legislative exercise would stand defeated.
the age of the accused, we reduce only the sentence to the minimum of one year
without touching the fine imposed, but do not find any justifiable reason to
reduce it below the minimum. The appeal is allowed to the extent indicated