# C. S. D. SW AMY v. THE STATE

- **Citation:** [1960] 1 S.C.R. 461
- **Court:** Supreme Court of India
- **Decided:** 1957-04-11
- **Case number:** Criminal Appeal No. 177of1957
- **Bench:** B. P. Sinha, P. B. Gajendragadkar, K. N. W Anchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/c-s-d-sw-amy-v-the-state-1778
- **Pages:** 12

## Headnote

Prevention of Corruption-Criminal miscondztct in discharge
of official duty-Charge in respect of specific instances of corruption
found unsustainable on evidence-Conviction based on presumptionV a:tidity-Prevention of Corruption Act, z947, (2 of z947), ss. 5(z)(a),
5(z)(d), 5(3).
The appellant was put up on trial on charges under ss. 5(1)(a)
and 5(1)(d) of the Prevention of Corruption Act, 1947. Payments
of particular sums by way of bribe were not proved against him.
But the High Court, holding that the'appellant's bare statements
..,
from the dock unsupported by any other acceptable evidence
could not satisfactorily account for the large deposits standing to
his credit in his bank accounts raised. the presumption under
s. 5(3) of the Act and held him guilty of criminal misconduct in
the discharge of his official duty under s. 5(1)(d) of the Act,
confirming the condction and sentence passed on him by the
l959
May 21.
'959
C. S. D. Swamy
v.
The State
462
SUPREME COURT REPORTS [1960(1}]
Special Magistrate. It was contended on behalf of the appellant
that'the charge relating to specific instances of bribery having
failed, the contrary to the presumption under s. 5(3) of the Act
should have been held as established and in absence of any finding
that his statements were false it should have been held that the
charge against him had not been proved beyond all reasonable
doubt .
. Held, that s. 5(3) of the Prevention of Corruption Act did not
create a new offence but only laid down a rule of evidence that
empowered the Court to/ presume the guilt of the accused in
certain circumstances, contrary to the well-known principle of
criminal law that the burden of proof was always on the prosecution and never shifted on to the accused.
The Legislature by using the expression " satisfactorily
account " in s. 5(3) of the Act, cast the burden on the accused.not
only to offer a plausible explanation as to how he came by the
large wealth disproportionate to his known sources of income, but
also fo satisfy the court that his explanation was worthy of
credence. Consequently, cases under the general law where it
had been held that the accused could be exonerated if he offered
a plausible explanation could have no application.
The expression "known sources of income " · used in that
section referred to such sources of income as became kno\vn to
the prosecution as a result of the investigation and could not
mean those that were within the special knowledge of the accused,
and it was no part of the duty of the prosecution to lead evidence
in that regard.
Where-the prosecution fulfilled the conditions laid down by
the earlier part of s. 5(3) of the Act, the statutory presumption
had· to be raised and it would be for the accused to rebut the same
by cogent evidence.
Rex v. Carrbriant, (1943) 1 K.B. 6o7, and Otto George Gfeller
v. The King, A.LR. (30) 1943 P.C. 2rr; Hate Singh Bhagat Singh
v. State of Madhya Bharat, A.LR. 1953 S.C. 468 and Regina v.
Dunbar, 1958 1 Q.B. I, held inapplicable.
The failure to substantiate a charge under s. 5(1){a) of the
Act on evidence would not necessarily mean an acquittal in
respect of a charge under s. 5(1)(d) of the Act. If the requirements of the earlier part of s. 5(3) were established by evidence,
conviction for criminal misconduct under s. 5(1){d) based on the
presumption under s. 5(3) of the Act would be perfectly valid in
law.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 177of1957.
Appeal by special leave from the judgment and
order dated April 11, 1957, of the Punjab High Court
in Criminal Appeal No. 7-D of 1955, a.rising out of the
•
S.C.R.
SUPREME COURT REPORTS
463
judgment and order dated January 19, 1955, of the
r959
Court of Special Judge, at Delhi in Corruption Case c s DN o. 2 of 1953.
. . . Swamy
v.
G. S. Pathak, R. Ganapathy Iyer and G. GopalakrishThe State
nan, for the 8!ppellant.
0. K. Daphtary, Solicitor-General of India, G. 0.
Mathur and R.H. Dhebar, for the respondent.
1959. 1\fay 21. The

## Text

S.C.R.
SUPREME COURT REPORTS
461
The prosecution also set out to prove that the goods
z959
were disposed of by the appellant by giving them to one Krishan Kumar
Gurbachan Singh who in turn put these at the premiv.
ses of Amar Singh and some steel goods were recover- The Union of India
ed
from there but the prosecution
have neither
produced Gurbachan Singh nor has it been proved
Kapur J.
that the goods are part of the consignment which was
taken delivery of by the appellant. If under the law
it js not necessary or possible for the prosecution
to prove the manner in' which the goods have been
misappropriated then the failure of the prosecution
to prove facts it set out to prove would be of little
relevance. The question would only be one of intention
of the appellant and the circumstances which have been
been above set out do show that the appellant in
what he ha.s done or has omitted to do was moved by
a guilty mind.
In our opinion the appellant was rightly convicted
and we would therefore dismiss this appeal.
.A.J>peal dismissed.
C. S. D. SW AMY
v.
THE STATE
(B. P. SINHA, P. B. GAJENDRAGADKAR and
K. N. W ANCHOO, JJ.)
Prevention of Corruption-Criminal miscondztct in discharge
of official duty-Charge in respect of specific instances of corruption
found unsustainable on evidence-Conviction based on presumptionV a:tidity-Prevention of Corruption Act, z947, (2 of z947), ss. 5(z)(a),
5(z)(d), 5(3).
The appellant was put up on trial on charges under ss. 5(1)(a)
and 5(1)(d) of the Prevention of Corruption Act, 1947. Payments
of particular sums by way of bribe were not proved against him.
But the High Court, holding that the'appellant's bare statements
..,
from the dock unsupported by any other acceptable evidence
could not satisfactorily account for the large deposits standing to
his credit in his bank accounts raised. the presumption under
s. 5(3) of the Act and held him guilty of criminal misconduct in
the discharge of his official duty under s. 5(1)(d) of the Act,
confirming the condction and sentence passed on him by the
l959
May 21.
'959
C. S. D. Swamy
v.
The State
462
SUPREME COURT REPORTS [1960(1}]
Special Magistrate. It was contended on behalf of the appellant
that'the charge relating to specific instances of bribery having
failed, the contrary to the presumption under s. 5(3) of the Act
should have been held as established and in absence of any finding
that his statements were false it should have been held that the
charge against him had not been proved beyond all reasonable
doubt .
. Held, that s. 5(3) of the Prevention of Corruption Act did not
create a new offence but only laid down a rule of evidence that
empowered the Court to/ presume the guilt of the accused in
certain circumstances, contrary to the well-known principle of
criminal law that the burden of proof was always on the prosecution and never shifted on to the accused.
The Legislature by using the expression " satisfactorily
account " in s. 5(3) of the Act, cast the burden on the accused.not
only to offer a plausible explanation as to how he came by the
large wealth disproportionate to his known sources of income, but
also fo satisfy the court that his explanation was worthy of
credence. Consequently, cases under the general law where it
had been held that the accused could be exonerated if he offered
a plausible explanation could have no application.
The expression "known sources of income " · used in that
section referred to such sources of income as became kno\vn to
the prosecution as a result of the investigation and could not
mean those that were within the special knowledge of the accused,
and it was no part of the duty of the prosecution to lead evidence
in that regard.
Where-the prosecution fulfilled the conditions laid down by
the earlier part of s. 5(3) of the Act, the statutory presumption
had· to be raised and it would be for the accused to rebut the same
by cogent evidence.
Rex v. Carrbriant, (1943) 1 K.B. 6o7, and Otto George Gfeller
v. The King, A.LR. (30) 1943 P.C. 2rr; Hate Singh Bhagat Singh
v. State of Madhya Bharat, A.LR. 1953 S.C. 468 and Regina v.
Dunbar, 1958 1 Q.B. I, held inapplicable.
The failure to substantiate a charge under s. 5(1){a) of the
Act on evidence would not necessarily mean an acquittal in
respect of a charge under s. 5(1)(d) of the Act. If the requirements of the earlier part of s. 5(3) were established by evidence,
conviction for criminal misconduct under s. 5(1){d) based on the
presumption under s. 5(3) of the Act would be perfectly valid in
law.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 177of1957.
Appeal by special leave from the judgment and
order dated April 11, 1957, of the Punjab High Court
in Criminal Appeal No. 7-D of 1955, a.rising out of the
•
S.C.R.
SUPREME COURT REPORTS
463
judgment and order dated January 19, 1955, of the
r959
Court of Special Judge, at Delhi in Corruption Case c s DN o. 2 of 1953.
. . . Swamy
v.
G. S. Pathak, R. Ganapathy Iyer and G. GopalakrishThe State
nan, for the 8!ppellant.
0. K. Daphtary, Solicitor-General of India, G. 0.
Mathur and R.H. Dhebar, for the respondent.
1959. 1\fay 21. The Judgment of the Court was
delivered by
SINHA J.-This appeal by special leave is directed
Sinha J.
against the judgment and order of the High Court of
Judicature for the State of Punjab at Chandigarh,
dated April 11, 1957, affirming those of the Special
Judge, Delhi, dated January 19, 1955, convicting the
appellant under s. 5(2) of the Prevention of Corruption
Act (2 of 1947). The sentence passed upon the appellant was six months' rigorous imprisonment.
The facts leading upto this appeal, may shortly be
stated as follows : During and after the Second World
War, with a view to augmenting the food resources of
the country, the Government of India instituted a
"Grow More. Food DivisiQn" in the Ministry of Agriculture. S. Y. Krishnaswamy, a Joint Secretary in
that Ministry, ;was placed in charge of that Division,
with effect from January 2, 1947. The appellant was
working in that Department as Director of Fertilizers.
He was a former employee of the well-known producers
of fertilizers, etc., called "Imperial Chemical Industries". Fertilizers were in short supply and, therefore
large quantities of such fertilizers had to be imported
from a.broad.
As chemical fertilizers were in short
supply not only in India but elsewhere also, an international body known as the "International Emex:gency Food Council" (I.E.F.C.) had been set up in United
States of America, and India was a member of the
same. That body used to consider the requirements
of different countries in r-espect of fertilizers, and used
to make allotments. Russia was not a. member of
that organisation.
Towards the end of 1946, a
Bombay firm, called '1\Iessrs. Nanava.ti and Compant,
464
SUPREME COURT REPORTS [1960(1)]
which used to deal in fertilizers and had bussiness contc. s. D. Swamy acts with Hussia, offered to supply ammonium sulphv.
ate from Russia to the Government of India. In the
I959
The state
years 1947 and 1948, considerable quantities of ammoSinha ].
nium sulphate were obtained through Messrs. Nanavati
and Company aforesaid. One D. N: Patel, who was a
former employee of Messrs. Nanavati and Company,
joined a pttrtnership business under the style of
'Messrs. Agri Orient Industries Limited of Bombay'.
This firm obtained a contract from the Government
for the supply of twenty thousand tons of ammonium
sulphate from United States of America, in February,
1950. In the course of this business deal, the said
Patel experienced some difficulty in obtaining Government orders regarding some consignments. The appellant was approached in that connection; and it is
alleged that Patel paid to the appellant Rs. 10,000 at
Bombay as bribe for facilitating matters. But in spite ·
of the alleged payment, difficulties and delays occurred
and the consignments, even after they had reached
their destinatioil in India, were not moving fast
enough, thus, causing considerable loss to the firm in
which Patel was interested. Patel, therefore approached Shri K. M. Munshi who was then 'the Minister
for Food and Agriculture in Delhi, and disclosed to
him the alleged payment of bribe of Rs. 10,000, as
also the fact that the appellant had been receiving
large sums of money by way of bribes for showing
favours iii the discharge of his duties in the Department. The Minister aforesaid directed thorough enquiries to be made, and the matter was placed in the
hands of the Inspector-General of Special Poliee
Establishment. A departmental committee was also
set up of three sc>nior officers of the Department to
hold a departmental inquiry, and ultimately, as a
result of that inquiry, the Minister passed orders of
dismissal of the appc>llant, in August, 1950. A further
inquiry in the nature of a qiiasi-judicial inquiry, was
held by the late Mr. Justice Rajadhyaksha of the
Bombay High Court, in 1951.
The inquiry related to
matters concerned with the import of fertilizers into
India. After receipt of t.!1e report of the inquiry by
3.C.R.
SUPREME COURT REPORTS
465
the late Mr. Justice Hajadhyaksha, in Jauuary, 1952,
and after consideration of the matters disclosed in
that report, a first information report was lodged on
April4, 1952, and thorough investigations were made
into the. complaints. The result was that two cases
were instituted. The first one related to an alleged
conspiracy involving the appellant, Krishni;+swamy
and one of the proprietors of Messrs. Nanavati and
Company, and several others, relating to bribery and
corruption in connection with the supplies of ammonium sulphate from Hussia. With that case, we are
not concerned here. The second case, out of which
the present appeal arose, was instituted against two
persons, namely the appellant and Krishnaswamy,
that they had entered into a conspiracy to receive
bribes and presents from various firms, in connection
with the import of fertilizers.
The learned Special
. Judge, who heard the prosecution evidence, came to
the conclusion that it did not disclose any conspiracy
a.s alleged, except in certain instances which formed
the subject-matfor of the charge of conspiracy which
was being tried separately, ·as aforesaid. The present
case, therefore, proceeded against the appellant alone .
under two heads of charge, namely, (1) that he had
been habitually accepting or obtai~ing, for himself or
for others, illegal gratifications from a number of
named firms and others, in connection with the import
and distribution offertilizers-s. 5(1).(a) of the Prevention of Curruption Act, 1947 (hereinafter referred to as
'the Act'), and (2) that he had been habitually receiving presents of various kinds by abusing his position
as a public servant-s. 6(1) (d) of the Act. The High
Court, in agreement with the learned Special Judge,
found the evidence of P. w·s. 9 and 10, who were the
principal prosecution witnesses as regards the passing
of certain sums of money from certain named. firms to
the appellant, as wholly unreliable. Further more,
Patel, being in the position of an accomplice, his evidence did not find sufficient corroboration from other
facts and circumstances proved in the case. · The High
Court, not being is· a position to accept t~ tainted
evidence aforesaid, found that the ca.se of p~yment of
~9
r959
c, S. D. Sw11my
v.
The St11te
Sinha].
z959
C. S. D. Swam~
v.
The State
Sinha].
466
SUPREME COURT REPORTS [1960(1)]
particular sums of money by way of bribes, had not
been established. But relying upon the presumption
under sub-s. (3) of s. 8 of the Act, the High Court
came to the conclusion that the appellant had not
satisfactorily accounted for the receipt of Rs. 73,000
odd in cash and about Rs. 18,000 by cheques, during
the years 1947 and 1948, which sums were wholly disproportionate to the appellant's known source of
income, namely, his salary as a Government servant,
and that, therefore, he was guilty of criminal misconduct in the discharge of his official duties. In that
view of the matter, the High Court confirmed the conviction and sentence of six months' rigorous imprisoment, passed by learned Special Judge of Delhi.
The learned counsel for the appellant has contended
(1) that on the admitted facts, the ingredients of·
s. 5(3) of the Act, had not been established, (2) t}_iat
w.hen · the charge in respect of specific instances of
corruption, has not been proved, as found by the courts
below, it should have been held that the contrary of
the presumption contemplated by s. 5(3), namely, of
the guilt of criminal misconduct, had been established,
and (3) that the appellant's statement under s. 342 of
the Code of Criminal Procedure, as also his statements
contained in his written statement., had not been
proved to be false, and that, therefore, it should have
been held that the case against the appellant had not·
been proved beyond all reasonable doubt.
It is true that s. 5(3) of the Act, does not create a.
new offence but only lays down a. rule of evidence,
enabling the court to raise a presumption of guilt in
certain circumstances-a. rule which is a complete
departure from the established principles of criminal
jurisprudence that the burden always lies on the prosecution to prove all the ingredients of the offence
charged, and that the burden never shifts on to the
accused to disprove the charge framed against him.
With reference to the provisions of s. 5(3) of the Act,
it has been contended, in the first instance, that the
charge of criminal misconduct in the discharge of his
official duties, is now confined to the fact as disclosed
in his bank accounts with the Imperial Bank of India
S.O.R.
SUPREME COURT REPORTS
467
(New Delhi Branch) and the Chartered Bank of India,
Australia and China (Chandni Chowk Branch), that his
nett credit with those banks totalled upto a figure just
over Rs. 91,000. He accounted for that large balance
by stating that he was the only son of his father who
had been able to give him advanced education in
England for a period of over seven years ; that after
his return to India, he had been holding highly paid
posts for about 20 years in the Imperial Chemical
Industries, in the Army and in the Government of
India ; that he had no children and no other dependants except his wife ; that with his limited household
expenses, he was able to save a good round sum out of
his salary and allowances which were considerable,
because his duty took him throughout the length and
breadth of the country, thus enabling him to earn
large sums of money by way of travelling 'allowances
which he saved by staying with his friends and
relations during his official tours. He added that he
had received a gratuity for services rendered to the
Army, and also considerable sums of money as ·his
provident fund from the Imperial Chemical Industries,
towards the end of November, 1947.
He also stated
that his deposits in the two banks aforesaid, represented sums of money saved in cash out of his salaries,
allowances and gifts from his parents, as also re-payments of loans advanced by him to his friends while
he was in the Army, and later. He added that some
of the deposits in cash were really re-deposits of earlier
withdrawals from the banks, as also the sale-proceeds
of his old car sold in June, 1948, for Rs. 5,500, together
with the sale-proceeds of gold jewellery belonging to
his wife. He also tried to explain the large deposits
of cash .in 1948, by alleging that he had borrowed a
sum of rupees 20,000 from one Ganpat Ram on a pronote (which he, later on, re-paid and obtained a:receipt),
with a view to building a house of his own in Delhi,
but as that negotiation fell through, he deposited that
cash amount in his account in the two banks aforesaid
in August, 1948, as. the creditor aforesaid would not
accept re.payment of the loan within a period of two
years, unlesl' the interest for that period was also paid
z959
C. S. D. Swamy
v.
The Slate
Sinha].
r959
C.S.D.Swa,,1y
v.
The Stafo
Sinha].
468
SUPREME COURT 1-tEPORTS [1960(1))
at the .~ame time.
With reference to those statements
of the •~ccused from the dock, it was contended by the
learned counsel for the accused that in view of those
facts, it could not be said t.Jui,t the accused had not
accounted for those huge deposits with the two banks
aforesaid.
The High Court has pointed out that the
matters alleged in the statement aforesaid of the
accused, were capable of being easily proved by evidence
which had not been adduced; that allegation was no
proof, and that his lucrative posts in the Imperial
Chemical Industries and in the Anny, were matters of
history in relation to the period for which the charge
had been framed. The High Court, therefore, found
it impossible to accept the appellant's bare statement
from the dock as to how amounts earned far in the
past, could find their way into the banks during the
years 1947 and 1948. It has been repeatedly observed
by this Court that this Court is not a Court of criminal
appeal, and we would not, therefore, examine the
reasons of the High Court for coming to certain conclusions of fact. Apparently, the High Court considered all the relevant statements made by the accused
under s. 342 of the Code of Criminal Procedure and in
his written statement, and came to the conclusion that
those statements had not been substantiated. We
cannot go behind those findings of fact.
Reforenc0 was also made to cases in which courts
had held that if plausible explanation had been offer~d
by an accused person for being in possession of property which was the subject-matter of the charge, the
court could exonerate the accused from criminal r0sponsibility for possessing incriminating property. In
our opinion, those cases haYe no bearing upon the
charge against the appellant in this case, because the
8ection requires the accused person to " satisfactorily
account " for the possession of pecuniary resources or
property disproportionate to his known sources of
income.
Ordinarily, an accused person is entitled to
acquittal if he can account for honest possession of
property which has been proved to have been recently
stolen (see illustration (a) to s. 114 of the Indian
Evidence Act, 1872).
The rule of law is that if ther~
S.O.R.
SUPREME COURT REPORTS
469
is a prima, facie explanation of the accused that he came
by the stolen goods in an honest. way, the inference of
guilty knowledge is displaced.
This is based upon the
well-established principle that if there is a doubt in the
mind of the court as to a necessary ingredient of an
offence, the benefit of that doubt must go to the
accused. But the Legislature has advisedly used the
expression "satisfactorily account".
The emphasis
must be on the word " satisfactorpy ", and the Legislature has, thus, deliberately cast a burden on the
accused not only to offer a plausible explanation as to
how he came by his large wealth, but also to satisfy
the
court
that his explanation was worthy of
acceptance,
Another argument bearing on the same aspect of
the case, ·is that the prosecution has not led evidence
to show as to what are the known sources of the
appellant's income. In this connection, our attention
was invited to the evidence of the Investigating
Officers, and with reference to that evidence, it was
contended that those officers have not said, in terms,
as to what were the known sources of income of the
accused, or that the salary was the only source of his
income.
Now, the expression "known sources of
income" must have reference to sources known to the
prosecution on a thorough investigation of the case.
It was not, and it could not. be, contended that
" known sources of income " means sources 'known to
the accused.
The prosecution cannot, in the very
nature of things, be expected to know the affairs of
an accused person. Those will be matters " specially
within the knowledge" of the accused, within the meaning of s. 106 of the Evidence Act. 'l'he prosecution can
only lead evidence, as it has done in the instant case,
to show that the accused was known to earn his living
by service under the Government during the material
period. The prosecution would not be justified in
. concluding that travelling allowance was also a source
Of income when such allowance is ordinarily meant to
compensate an officer concerned for his out-of-pocket
expenses incidental to journeys performed by him f~
his official tours. That could not possibly be alleged
I959
C.S. D. Swamy
v.
1'he Stale
Sinha ].
I959
C. S. D. Swamy
v.
The State
Sinha].
470
SUPREME COURT REPORTS [1960(1))
to be a very substantial source of income. The source
of income of a particular individual will depend upon
his position in life with particular reference to his
occupation or avocation in life.
In the case of a
Government servant, the prosecution would, naturally,
infer that his known source of income would be the
salary earned by him during his active service.
His
pension or his provident fund would come into calculation only after his retirement, unless he had a justification for ·borrowing from his provident fund.
We
are not, therefore, impressed by the argument that the
prosecution has failed to lead proper evidence as to
the appellant's known sources of income.
It may be
be that the accused may have made statements to the
Investigating Officers a.s to his alleged sources of
income, but the same, strictly, would not be evidence
in the case, and if the prosecution has failed to disclose
all the sources of income of an accused person, it is
always open to him to prove those other sources of
income which have not been taken into account or
brought into evidence by the prosecution.
In the
present case, the prosecution has adduced the best
evidence as to the pecuniary resources of the accused
person, namely, his bank accounts. They show that
during the years 1947 a.nd 1948, he ha.d credit a.t
the banks, a.mounting to a little over Rs. 91,000. His
average salary per mensem, during the relevant period,
would be a little over Rs: 1,100. His sa.la.ry, during
the period of the two years, assuming that the whole
amount was put into the banks, would be less than
one-third of the total amount aforesaid, to his credit.
It cannot, therefore, be said that he was not in possession of pecuniary resources disproportionate to his
known sources of income:
It was next contended that the burden cast on the
accused by sub s.(3) of s. 5 of the Act, was not such
a heavy burden as lies on the prosecution positively
to prove all the ingredients of an offence.
In that
connection, reference was made to a. number of deci•
sions, particularly Rex v. Carrbriant ('), to the effect
(1) (1943) I K. B. 607, referred to under Art. 3997 at; p. 1511 iD
•Archbold Criminal Pleading Evidence and Practice', 34th Edn.
•
S.C.R.
SUPREME COURT REPORTS
471
that the onus of proof lies on the accused person to
show that a certain proved payment was in fact not a
corrupt payment, but that the burden is less heavy
than that which, ordinarily, lies on the prosecution to
prove its case beyond all reasonable doubt. Reference
was also made to Otto George Gfeller v. The King (1),
Hate Sing Bhagat Singh v. State of Madhya Bharat (2)
and Regina v. Dunbar(8). In our opinion, those decisions do not assist the appellant in the present case.
In this case, no acceptable evidence, beyond the bare
statements of the accused, has been adduced t.o , show
that the contrary of what has been proved by the
prosecution, has been established, because the requirement of the section is that the accused person shall be
presumed to be guilty of criminal misconduct in the
discharge of his official duties " unless the contrary is
proved." The words of the statute are peremptory, and
the burden must lie all the time on the accused to
prove the contrary. After the conditions laid down
in the earlier part of sub-s. (3) of s. 5 of the Act, have
been fulfilled by evidence to the satisfaction of the
court, as discussed above, the court has got to .raise
the presumption that the accused person is guilty of
criminal misconduct in the discharge of his official
duties, and this presumption continues to hold the field
unless the contrary is proved, that is to say, unless the
court is satisfied that the statutory presumption has
been rebutted by cogent evidence. Not only that, the
section goes further and lays down in forceful words that
"his conviction therefor shall not be invalid by reason
only that it is based solely on such presumption."
Lastly, it was argued that when the section speaks
of the burden being on the accused person to prove the
contrary, it must mean adducing evidence to disprove
the charge. ,The argument proceeds that as in the
present case, the facts and circumstances mentioned in
the charge had not been proved, the accused person
must be acquitted as having disproved the charge with
reference to the particular cases of bribery which had
been held not proved. In our opinion, there is a.
(1) A.I.R. 1943 P.C. 211.
(2) A.IR. 195~ S.C. 468.
(3) (1958) I Q.B. I,
r959
C. S. D. Swamy
v.
The Slate
Sinha].
1959
C.S.D.Swamy
v.
The State
Sinha J.
472
SUPREME COURT REPORTS [1960(1)]
fallacy in this argument. The finding of the High
Court and the court below, is that the prosecution ha~
failed to adduce sufficient evidence to prove those
particular facts and circumstances of criminal misconduct within the meaning of s. 5(l)(a) of the Act, but
the failure to bring the charge home to the accused
under s. 5(1)(a), does not necessarily lead to the legal
effect contended for.
As soon as the requirements of
sub-section (3) of s. 5 have been fulfilled, the Court will
not only be justified in making, but is called upon to
make, the presumption that the accused person is guilty
of criminal misconduct within the meaning of s. 5(l}(d).
In order to succeed in respect of the. charge under
s. 5(l)(a}, the prosecution has to prove that the accused
person hwd accepted or obtained or agreed to accept or
attempted to obtain from any person any gratification
by way of bribe within the meaning of s. 161 of the
Indian Penal Code. That charge failed because the
evidence of P.W. 9 was not accepted by the High
Court or the trial court. The charge under s. 5(l)(d)
does not require any such proof. If there is evidence
forthcoming to satisfy the requirements of the earlier
part of sub-s. (3) of s. 5, conviction for criminal
misconduct can be had on the basis of the presumption
which is a legal presumption to be drawn from the
proof of facts in the earlier part of the sub-s. (3) aforesaid. That is what has been found by the courts
below against the acc11sed person.
Hence, the failure
of the charge under cl. (a) of sub-s. (1) of s. 5, does not
necessarily mean the failure of the charge under
s. 5(l}(d).
In our opinion, the judgment of the High Court is
correct, and the appeal is, accordingly, dismissed. If
the accused is on bail, he must surrender to his bail
bond.
Appeal dismisse;l,.