2003 ALL SCR (Cri) 394
SUPREME COURT OF INDIA

DORAISWAMY RAJU J.ARIJIT PASAYAT J.

State of Andhra Pradesh Vs. V. Vasudeva Rao

Appeal (Crl.) 208 of 1997

13th November 2003

Petitioner Counsel:
Respondent Counsel:

Accused Agreement Children Complaint Conviction Conviction and Sentence Examination Gratification Punishment Motive Parliament Plaint Procedure Public Servant Railway Sentence State Statement Transfer Witness

Cases Cited :

Para 12: V.K. Sharma Vs. State (Delhi Admn.) (1975 (1) SCC 784)
Paras 12, 23: Sita Ram Vs. The State of Rajasthan (1975 (2) SCC 227)
Paras 12, 23: Suraj Mal Vs. State (Delhi Admn.) (1979(4) SCC 725)
Paras 15, 23: M. Narsinga Rao Vs. State of A.P. (2001 (1) SCC 691)
Para 16: Hawkins Vs. Powells Tillery Steam Coal Co. Ltd. (1911 (1) KB 988)
Para 19: Suresh Budharmal Kalani Vs. State of Maharashtra (1998 (7) SCC 337)
Para 21: Raghubir Singh Vs. State of Punjab (1974 (4) SCC 560)
Para 22: Hazari Lal Vs. State (Delhi Admn.) (1980 (2) SCC 390)
Paras 22, 30: Madhukar Bhaskarrao Joshi Vs. State of Maharashtra ( 2000 (8) SCC 571)
Para 25: Mohmoodkhan Mahboobkhan Pathan Vs. State of Maharashtra (1997 (10) SCC 600)
Para 26: State of Assam Vs. Krishna Rao (1973 (3) SCC 227)
Para 26: State of Madras Vs. A. Vaidiaratha Iyer (1958 SCR 580)
Paras 26, 27: C.I. Emden Vs. The State of U.P. (AIR 1960 SC 548)
Para 26: Dhanvantrai Vs. State of Maharashtra (AIR 1964 SC 575)
Para 26, 27: V.D. Jhangan Vs. State of U.P. (1968 (3) SCR 766) : (1966 (3) SCR 736)

JUDGEMENT


ARIJIT PASAYAT, J.:- It is 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 independence.
2. Corruption 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.
3. Corruption 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".
4. In 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.
5. Prosecution version which led to the trial of the case is essentially as follows:
The accused\026respondent 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. Complainant-Raghunath 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.
Complainant-Raghunath showed his inability to pay such a large amount.
The 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.
Complainant-Raghunath 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.
The 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.
6. The 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.
7. Learned 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.
8. The 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 guilty.
9. Finally, 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 repayment 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.
10. In 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 record.
11. In 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.
12. Reliance 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.
13. For appreciating rival stands it would be proper to quote Section 4(1) of the Act, which reads as follows:
"4.(1) 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."
14. 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.
15. When 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 t