# DHANV ANTRAi BALW ANTRAi DESAI v. STATE OF MAHARASHTRA {JAFER bur.i:, K. SuBBA RAo, N. RAJAGOPALA

- **Citation:** [1963] Supp. 1 S.C.R. 485
- **Court:** Supreme Court of India
- **Decided:** 1960-08-03
- **Case number:** Criminal St•t,.f Md•roshlr• Appeal No. 218 of 1960
- **Bench:** JAFER bur.i, K. SuBBA RAo, N. Rajagopala Ayyangar, J. R. MuDHOLKAR
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/dhanv-antrai-balw-antrai-desai-v-state-of-maharashtra-jafer-bur-i-k-subba-rao-n-2723
- **Pages:** 17

## Headnote

Criminal
Trial-Bribery-Rw,ipt
of
gratificationPresumptio-Rebuttal
of-Onus-Plausible
explanation by
accused, if discharges onus-Prevention of Corruption Act, 1947
(II of 1947), a. 4.
The appellant was the Resident Engineer for Light Houses
and the complainant had ,a contract for reconstructing one of
the light houses.
For this construction the contractor used
water from a temple well and used a temple room for storing
cement. On the completion of the work the appellant asked
the contractor to carry out certain repairs to the temple but
he declined to do so. At the time of the payment of the final
bill the contractor paid a sum of Rs. 1,000/- to the appellant
ai1d the amount was recovered fro1n him upon a search. The
explanation offered by the appellant was that the contractor
had given this sum of money for payment to the temple authorities for repairs to the temple as he had himself been unable to
do so, He was convicted under s. 161 Indian Penal Code by
raising the
presumption under s. 4 of the Prevention of
Corruption Act. The appellant contended that the explanation
given by him was both reasonable and probable and that
accordingly the presumption was rebutted.
Held, that the presumption under s. 4(1) had properly
been raised as the appellant had admittedly accepted gratification other than legal remuneration. The appellant had failed
to rebut this presumption and was rightly convicted. The
burden of rebutting such a presumption resting upon the accused
was not as light as in the case of a presumption raised under
s. 114 Evidence Act. The burden was not discharged by merely
giving a reasonable and probable explanation. The accused
had to show that the explanation was a true one.
Unless
the explanation is supported by proof, the presumption cannot
be said to be rebutted.
C. I. Emden v. State of U. P., [1960] 2 S. C. R. 592,
Olla George Gfeller v. The King, A. I. R. (1943) P. C. 211 and
1962
1962
486 SUPREME COURT REPORTS [1963] SUPP.
State of Madras v. A. VaidyaMtha Iyer, [1958] S. C. R. 580,
referred to.
Dhtn11111tlr•i ]hd.
wa11lrai Dwi
v.
CRIMINAL APPELLA'rE J UIUSDICTION : Criminal
St•t,.f Md•roshlr• Appeal No. 218 of 1960.
Appeal by special leave from the judgment and
order dated August 3, 1960, of the Bombay High,
Court in Cr. A. No. 282 of 1960.
A.&. R. Chari, M. K. Rarnamurthi, R. K. Garg,
D. P. Singh, S. C. Agarwal, L. M. Atmaram
Bhukhanwal,a and K. R. Choudhri, for the appellant.
R,. L. Anand, D. R. Prem, R. H. Dhebar and
R. N. Saehthey, for the respondent.
1962. September 28. The Judgment of the
Court was delivered by
MuiJWk.,, 1,
MuDHOLKAR, J.-In this appeal by special leave
from the judgment of the High Court of Bombay
affirming the conviction and sentences passed on the
appellant in respect of offences under s. 161, Indian
Penal Code and s. 5(l)(d) of the Prevention of
Corruption· Act, 1947 (2 of 1947) read withs. 5(2)
thereof, the only point urged is that the presumption
raised against the appellant under s. 4 of the Prevention of Corruption Act must be held to have been
rebutted by the explanation given by him inasmuch
~ that explanation was
both reasonable and
probable.
In order to appreciate the contention it is
necessary to state certain facts.
In the year 1954 the appellant was appointed
Resident Engineer for Light Houses and posted to
Bombay. He was due to retire in January, 1955 but
he was given extensions from time to time. The
complainant, M. M. Patel (who will hereafter be
referred to as the complainant) is a building contr.actor. It was proposed to re-construct a light house at
TolkeshwarPoint which is situated on the West
1 S.C.R.
SUPREME COURT REPORTS
487
Coast, somewhere between Ratnagiri and Karwar.
The complainant submitted a tender for the construction on March 21, 1956. That tender was accepted
on June 30, 1956 and a work order was issued to
him. The general conditions governing the contract
are contained in the set of papers inviting tenders.
The complainant commenced the work in
November, 1

## Text

1 $.C.R. SUPREME COURT REPORTS
485
DHANV ANTRAi BALW ANTRAi DESAI
v.
STATE OF MAHARASHTRA
{JAFER bur.i:, K.
SuBBA RAo, N. RAJAGOPALA
AYYANGAR and J. R. MuDHOLKAR, JJ.)
Criminal
Trial-Bribery-Rw,ipt
of
gratificationPresumptio-Rebuttal
of-Onus-Plausible
explanation by
accused, if discharges onus-Prevention of Corruption Act, 1947
(II of 1947), a. 4.
The appellant was the Resident Engineer for Light Houses
and the complainant had ,a contract for reconstructing one of
the light houses.
For this construction the contractor used
water from a temple well and used a temple room for storing
cement. On the completion of the work the appellant asked
the contractor to carry out certain repairs to the temple but
he declined to do so. At the time of the payment of the final
bill the contractor paid a sum of Rs. 1,000/- to the appellant
ai1d the amount was recovered fro1n him upon a search. The
explanation offered by the appellant was that the contractor
had given this sum of money for payment to the temple authorities for repairs to the temple as he had himself been unable to
do so, He was convicted under s. 161 Indian Penal Code by
raising the
presumption under s. 4 of the Prevention of
Corruption Act. The appellant contended that the explanation
given by him was both reasonable and probable and that
accordingly the presumption was rebutted.
Held, that the presumption under s. 4(1) had properly
been raised as the appellant had admittedly accepted gratification other than legal remuneration. The appellant had failed
to rebut this presumption and was rightly convicted. The
burden of rebutting such a presumption resting upon the accused
was not as light as in the case of a presumption raised under
s. 114 Evidence Act. The burden was not discharged by merely
giving a reasonable and probable explanation. The accused
had to show that the explanation was a true one.
Unless
the explanation is supported by proof, the presumption cannot
be said to be rebutted.
C. I. Emden v. State of U. P., [1960] 2 S. C. R. 592,
Olla George Gfeller v. The King, A. I. R. (1943) P. C. 211 and
1962
1962
486 SUPREME COURT REPORTS [1963] SUPP.
State of Madras v. A. VaidyaMtha Iyer, [1958] S. C. R. 580,
referred to.
Dhtn11111tlr•i ]hd.
wa11lrai Dwi
v.
CRIMINAL APPELLA'rE J UIUSDICTION : Criminal
St•t,.f Md•roshlr• Appeal No. 218 of 1960.
Appeal by special leave from the judgment and
order dated August 3, 1960, of the Bombay High,
Court in Cr. A. No. 282 of 1960.
A.&. R. Chari, M. K. Rarnamurthi, R. K. Garg,
D. P. Singh, S. C. Agarwal, L. M. Atmaram
Bhukhanwal,a and K. R. Choudhri, for the appellant.
R,. L. Anand, D. R. Prem, R. H. Dhebar and
R. N. Saehthey, for the respondent.
1962. September 28. The Judgment of the
Court was delivered by
MuiJWk.,, 1,
MuDHOLKAR, J.-In this appeal by special leave
from the judgment of the High Court of Bombay
affirming the conviction and sentences passed on the
appellant in respect of offences under s. 161, Indian
Penal Code and s. 5(l)(d) of the Prevention of
Corruption· Act, 1947 (2 of 1947) read withs. 5(2)
thereof, the only point urged is that the presumption
raised against the appellant under s. 4 of the Prevention of Corruption Act must be held to have been
rebutted by the explanation given by him inasmuch
~ that explanation was
both reasonable and
probable.
In order to appreciate the contention it is
necessary to state certain facts.
In the year 1954 the appellant was appointed
Resident Engineer for Light Houses and posted to
Bombay. He was due to retire in January, 1955 but
he was given extensions from time to time. The
complainant, M. M. Patel (who will hereafter be
referred to as the complainant) is a building contr.actor. It was proposed to re-construct a light house at
TolkeshwarPoint which is situated on the West
1 S.C.R.
SUPREME COURT REPORTS
487
Coast, somewhere between Ratnagiri and Karwar.
The complainant submitted a tender for the construction on March 21, 1956. That tender was accepted
on June 30, 1956 and a work order was issued to
him. The general conditions governing the contract
are contained in the set of papers inviting tenders.
The complainant commenced the work in
November, 1956. It would appear that the overseer
supervising the work was not satisfied with the
manner in which the contractor was carrying on the
work.
As a result, in December, 1956, the appellant
had to bring the fact to the complainant's notice and
warn him to carry out the work according to the
specification contained in the notice inviting tenders.
It may be mentioned that just near the place
where the light house was being constructed, there
is a temple of Tolkeshwar.
Attached to the temple
there is a small dharmashala.
There is also a well
near the dharmashala,
and that well is the only
convenient source of water supply to the neighbourhood. At the relevant time the water in it was upto
a depth of six feet.
In the year l!J5'i appellant
wrote a letter to the trustee of the temple asking his
permission to take water from that well for supplyine1t to the Government staff. The idea was to set up
a pump in the well and lay out a pipeline leading up
to the staff quarters. In reply to the letter Mr. Gale
who was the trustee, wrote that if this was done the
water in the well will run out in a short time.
He,
therefore, suggested that the well be deepened and
added : "However, the trustees have no objection
to the Government's intention of laying out a pipeline from the well provided arrangements are made
for supply of water to the temple and the small
dharrruishal.a nearby". It is not clear whether a pump
was set up by the Government and a pipeline laid
out. But it is an admitted fact that the well has not
been deepened. It is also admitted that the contractor
used the well water for carrying on his work without
1962
Dhcmaantrai Ba/want
rai Desai
v.
State oj Maharashtra
Mudho/kar, J.
1962
Dlruuantrai Balwa·
ntroi Desai
v.
Si.II of Malt.rashtra
Mudholkar, J.
4S8 SUPREME COURT R£P00..TS [1963] StJPP.
obtaining any express permission of the trustees.and
by the time he finished the work the water level had
gone down to a little below two feet.
According to the complainant in February, 1957,
the appellant had paid a visit to Tolkeshw ar and
during his visit he told the complainant "to behave
like other contractors" evidently sugg~sting that he
should also pay him certain percentage of his bills as
a bribe. It is sufficient to say that both the courts
have found that the appellant did not visit Tolkeshwar
in February, 1957, but the High Court has held that
the appellant did make a demand for bribe in June,
1957, when he visited To!keshwar and that the comp·
lainant has made a mistake regarding the dat.e on
which the bribe was demanded. On March 26, 1957
one Bhatia was posted as Overseer there and though
on March 30, 1957, a cheque for Rs. 7,278 odd was
given to the complainant on his first running bill.
Bhatia made a complaint to the appellant on April 2,
1957, that the complainant was not carrying on his
work satisfactorily and was not affording facilities to
him for supervising the work.
On April 6, Hl57, an
Assistant Engineer attached to the appellant's charge
inspected the work and found faults with it. On April
7, 1957, the complainant and some of his workmen
.assaulted Bhatia about which the latter made a complaint in writing to the appellant. This complaint
was eventually forwarded to the higher authorities
who reprimanded the complainant .and required .him
to give an undertaking to behave properly. On .l\pril
9, 1957, the appellant wrote to Bhatia asking him to
give instructions in writing to the complaiJiant instead
of giving mere oral instructions. He lik~e wrote
to the complainant asking him to carry on the work
according to the instructions ofBhatia and a~ under·
take not to use force.
On May 13, 1957, .the ~ppel
lant reported to the Director General of jjgji.t H(lllses
that the complainant's work was bad and ,got .a.cwrdiqg to ~pecificatwns. He, therefore, sμ•stcd, that
1 S.C.R. SUPREME COURT REPOllTS
489
the complainant should be required to pull down the
constructions which were not according to the specifications. The complainant protested against this.
On May 28, ln57, he presented a second running bill
for Rs. 38,000 odd and though apparently a cheque
was prepared it was not handed over to the complainant as the work was defective.
On August I, 1957,
the Director General of Light Houses instructed the
appellant not to make any payment to the complainant. It would appea1 that after some correspondence between the complainant and the higher authorities he eventually pulled down the structures which
were not according to the specifications and re-constructed them and was paid Rs. 27,569 odd. That
was on }'ebruary 6, Hl58.
It may be mentioned that
this payment was made after the appellant visited the
site on January HJ, Hl58, and made a favourable
report to the Director General of Light Houses.
Mr.
A.S.R. Chari for the appellant points out that it is
not suggested that even at this time the appellant
asked for any bribe.
Further payments of Rs. 35,000
odd, Rs. 7,000 odd, Rs. 21,000 odd, Rs. 6,200 odd,
Rs. 9,190 odd, Rs. 18,900 odd were made between
March 18, 1958, and February 9, 1959, and Mr.
Chari again points out that there is no suggestion "that
any illegal gratification was demanded by the appellant before passing any of these bills. In the meanwhile reports that the work being done was unsatisfactory used to be made from time to time by the
Overseer to the appellant.
According to the prosecution when the appellant
visited the site on January 5, 1959, during the absence
of the complainant he asked the complainant's
brother-in-law Jaikishen, who was in charge of the
~ork for Rs. 300/- to Rs. 400/-. Jaikishen, however,
did not pay the money on the pretext that he had no
funds with him. This story, it may be mentioned,
was not believed by the Special Judge and no reference to it has been made in the Judgment of the
High Court.
1962
Dhanvantrai
,flalWtJntrai Dn•i
v.
Stat1 of Mah.ratra
1962
Dlurttun•tr•i
B•lwalrai Desa;
v.
Statt of Md.,•slilr«
Mutiliolkar, J.
490 SUPREME COURT REPORTS [1963] SUPP.
At about that time the appellant was asked to
level the ground adjoining the staff quarters and
also deepen the well.
This was extra work and the
complainant declined to do it. It is said that he was
also asked to repair the temple and dharmshala and
he refused to do that work also. On February 9, 1959,
the complainant presented his ninth running bill
which was for Rs. 22,000 odd.
On March 13, 1959,
the appellant visited Tolkeshwar. During this visit
he received a letter from D. S. Apte, D. W. 2 who
used to look after the temple.
In that letter he
brought to the notice of the appellant that the temple
was 400 years old, that small and petty repairs to the
temple had become necessary, that it was also
necessary to paint the temple both from inside and
outside as also to provide a ~ater tap in the temple
and construct a road connectirig the temple with the
lighthouse. He, therefore, requested the appellant to
consider these requirements sympathetically. According to the appellant, it is in pursuance of this request
that he suggested to the complainant to do some
work free for the temple. It may be mentioned that
the complainant had actually taken up his residence
in the dharmshal,a attached to the temple and had
used the main temple hall for sometime for storing
his cement bags.
Thus in addition to using the
water from the temple we!l he had made ample use
of the temple properties.
According to Mr. Chari
it was apparently for this reason that the appellant
made the aforementioned suggestion to the complainant. It is an admitted fact that though the ch::que
for payment of Rs. 22,000 odd for the nintl-- running
bill was prepared on March 23, 1959, it was not
handed over to the complainant on that date.
It is
the complainant's case that the appellant was demanding 10% of the bills by way of illegal gratification,
that upon the complainant refusing to pay that
amount the appellant brought do'Nn the demand to
3 or 4% and ultimately to Rs. 1,000/-.
The prosecution case is that it is for compelling the complainant
1 s.c.R.
SUPREME COURT REPORTS
491
to disgorge this amount that the cheque was being
withheld.
According to the appellant he refused to
certify completion of the work unless the complainant
undertook to level the ground and deepen the well
and for no other reason.
He admitted that this was
extra work but he said that the complainant was
required under the contract to do the extra work
though of course he would have been entitled to
separate payment with respect to it. It was for this
reason alone that he had asked the complainant to
see him in Bombay on March 26, 1959. The
complainant on being informed of this, wrote to the
appella:it's office on March 27, 1959, saying that the
cheque should not be sent by post but should be
handed over to him personally when he visited
Bombay. On March 28, 1959, this postcard was
brought to the notice of the appellant. He was
going on a short leave and, therefore, he made an
endorsement on that postcard that the complainant
should be asked to sec him on April 6, 1959, by which
time he would be back on duty and that the complainant would be given the cheque on that day. On
March 31, 1959, the appellant learnt that a cheque
for Rs. 32,200 odd on account of the tenth running
bill had been prepared and he, therefore, asked for
payment of the bill also but the officer in charge did
not hand over either of the cheques to him. Thereafter the complainant went to the anti-corruption
department and lodged a complaint.
On April 6, 1959, the complainant went to the
office of the appellant and saw him in his cabin.
There the cheque was handed over by the appellant
to the com~lamant. But before that, according to
the complamant, he paid Rs. 1,000 in currency
notes to the appellant. Having done that he came
out and then certain police officials accompanied by
parwhas entered the room.
On being required to
produce the money by the police officials the appellant
promptly took out the currency notes from his pocket.
1992
DlwtNtdr•i
BalW1111trai Duoi
v.
Stat1 •! M.Mr4Slltt
Muillolkar, J.
1962
Dhnptantrtti
Balwat~ai Desai
y.
't•lt ef Mnhara.shtra
MuJJ..ik.,, 1.
4o92 SUPREME COURT 1.UPORTS [1~63] Stll>P.
It may be mentioned that the currency notes were
besmeared with enthracene powder and it is common
ground that traces of enthracene powder were found
not only on the pocket of the appellant but also on
his fingers
and those of the complainant. The
curreney notes were on examination also found to
show traces of enthracene. It may be mentioned
that the cheque was not subjected to the usual test.
The appellant's explanation is that after he handed
over the cheque to the complainant the letter said
that he was really not in a position to do the repair
work etc., to the temple and dharm11hala because
he did not have enough men even for doing the, work
which was undertaken by him and that he was therefore handing over to the appellant Rs. l,000 for
being transmitted to the temple authorities.
His
grievance is that by not subjecting the cheque to the
usual test he has been deprived of the opportunity of
establishing his defence that the cheque was handed
over by him to the complainant even before he received tl\e money. It does not appear, however, that
any grievance was made of this fact before the special
Judge who tried the case.
Thus the receipt of Rs. l,000/ · was admitted by
the appellant. This was admittedly not the appellant's 'legal remuneration'. The first question, therefore, is whether a presumption under sub·s. I of s. 4
of the prevention of Corruption Act arises in this case.
That provision runs thus :
"Where in any trial of ;,in offence punishable
under section 161 or section 165 of the Indian
Penal Code 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
I S.C.R.
SUPREME COURT REPORTS
493
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."
It was contended that the use of the word 'gratification' in sub-s. (1) of s. 4- emphasises that the mere
receipt of any money does not justify the raising of a
presumption thereunder and that something more than
the mere receipt of money has to be proved. A similar
argument was raised before this Court in 0. I. Emdm
v. State nf Utta.r Pradesh(').
Dealing with it this
Court has pointed out that what the prosecution has
to prove is that the accused person has received "gratification other than legal remuneration" and that
when it is shown that he has recdved a certain sum
of money which was not a legal remuneration, then
the condition prescribed by this section is satisfied.
This Court then proceeded to observe:
"If the word 'gratification' is construed to mean
money paid by way of a bribe then it would be
futile or superfluous to prescribe for the raising
of the presumption. Technically it may no
doubt be suggested that the object which the
statutory presumption serves on this construction
is that the court may then presume that the
money was paid by way of a bribe as a motive
or reward as required by s. 161 of the Code.
In our opinion this could not have been the
intention of the L?gislature in prescribing the
statutory presumption under s. 4 (I)".
This. Cou~t furt?cr said that there is yet another
con:1derat10n_ w hie h supports the construction placed
by It.
In tins conncct10n a reference was made to
s. 165 of the Code and it was obseived:
i l) (HJ60) 2 S.C.R. 592.
If62
»hauatr•i
~clwantrci De:1i
v.
Stct1 •f AfaharulitraMudlw/k11<, J.
1962
Dlw<Hlltr•i
~.tw.Rt11i Desai
...
SUik of N•h•rasJ..tra
Muilt1lkar, J,
494 SUPREME COURT REPORTS [1963] SUPP.
"It cannot be suggested that the relevant clause
ins. 4 (1) which deals with the acceptance of
any valuable thing shovld be interpreted to
impose upon the prosecution an obligation to
prove not only that the valuable thing has been
received bv the accused but that it has been
received by him without consideration or for a
consideration which he knows to be inadequate.
The plain meaning of this clause undoubtedly
requires the presumption to be raised whenever
it.is shown that the valuable thing has bi:en
received hy the accused without anything more.
If that is the true position in respect of the
construction of this part of s. 4 (l) it would be
unreasonable to hold that the word 'gratification' in the same clause imports the necessity to
prove not only the payment of money but the
incriminating character of the said payment.
It is true that the Legislature ·might have used
the word 'money' or 'consideration' as has been
done by the relevant section of the English
statute; ......... "
That being the legal position it must be held
the requirements of sub-s. ( 1) of s. -i have been fulfilled in the present case and the presumption thereunder must be raised.
The next contention of Mr. Chari is that the
accused person is entitled to rebut the presumption
arising against him by virtue of a statutory provision
by offering an explanation which is reasonable and
probable.
According to him the complainant evidently nurser! a grievance against the appellant
because the latter used to find fault with his work
that the complainant was required to demolish some
construction and do the work over again.
He further
points out that the complainant also felt aggrieved
because of the appellants insistence on the complainant doing the work of levelling the ground acUoining
1 S.C.R. SUPREME COURT REPORTS
495
the staff quarters and deepening the temple well
even though he would have been paid separately for
this work. It is because of these circumstances that
according to Mr. Chari, the complainant conceived
the idea of laying a trap for involving the appellant.
He points out that apart from the bare statement of
the complainant there is nothing to show that the
appellant had been asking for any bribes. No doubt
the appellant had suggested that some work for the
temple should be done free by the complainant. But
that was merely by way of request and nothing more
and that there is nothing to show that he was using
his official position to coerce the complainant for
doing this work.
He has taken us through considerable portions of the evidence on record to show that
the complainant was not the kind of man who could
be easily cowed down and it is unthinkable that the
appellant would have tried to use pressure tactics
against the complainant either for doing some work
for the temple or for obtaining illegal gratification
for himself.
And in this connection he referred in
particular to a reply sent by the complainant to the
Director General of Light Houses.
Then he points
out that it has not been established that though bills
worth a lakh of rupees or so were already passed for
payment by the appellant, he had used any pressure
for obtaining bribe. It would,
therefore, not be
reasonable to hold that the appellant had withheld
the ninth bill just for coercing the complainant to
pay a thousand rupees to him by way of illegal gratification.
He then
pointed out that
actually on
March 19, 1959, the appellant had applied to the
Director General of Light Houses for permission to
retire as from June 30, and requ~sted him to settle
his gratuitv amount. In these circumstances and knowing full well the kind of person the complainant was,
would the appellant, says Mr. Chari, have been fo.
olish enough to press him for a comparatively trivial
amount of Rs. 1,000/- by way of bribe? He, therefore, urges that in the circumstances the explanation
1'62
DAanv111trai
s.i,,,.,,,.; !Jn,
v.
Stoll of M•llaros•
Mu,lrolhr, •
196'1
,fJJumvantr•i
r•Iwatrai Desci
v.
-11 of Mchar,ashtra
496 SUPREME COURT REPORTS [1963] SUPP.
offered by the appellant which is to the effect that
the complainant vohmtarily paid to him a sum of
Rs. 1,000/- on April G, l!lEi!J, for being passed on to
the temple authorities should be accepted as reasonable and probable.
His grievance is that the High
Court has mis-stated and misapplied the law when it
observed in its judgment:
"The usual standard of an explanation given by
the accused which may reasonably be true,
though the Court does not accept it to be true,
cannot be enough to discharge the burden.
It
is not necessary to consider what evidmce would
satisfy the words 'until the contrary is proved'
in this case.
The least that can be said is that
the Court must be satisfied from the material
placed before it on behalf of the accused either
from the evidence for the prosecution or for the
accused that it creates a reasonable doubt about
the prosecution case itself.
It is not necessary
to go beyond this in this case since we are satisfied that the circumstances and the evidence
placed before us do not create a reasona hie
doubt about the prosecution case.''
.Mr. Chari contends that upon the view taken
by the High Court it would mean that an accused
person is required to discharge more or less the same
buraen for proving his innocence which the prosecution has to discharge for proving the guilt of an
accused person.
He referred us to the decision in
Otto George Gfeller v. The King (1) and contended
that whether a presumption arises from the common
course of human affairs or from a statute there is no
difference as to the manner in which that presumption
could be rebutted.
In the decision referred to above
the Privy Council, when dealing with a case from
Nigeria, held that if an explanation was given which
the jury think might reasonably be true and which is
consistent with innocence, although they were not
convinced of its truth, the accused person would be
(l)A.I.11..(1943) P.C.211.
I S.C.R. SUPREME COURT REPORTS
497
entitled to acquittal inasmuch as the prosecution
would have failed to discharge the duty cast upon it
of satisfying the jury beyond reasonable doubt of the
guilt of the accused.
That, however, was a case
where the question before the jury was whether a
presumption of the kind which in India may be raised
under s. 114 of the Evidence Act could be raised from
the fact of possession of goods recently stolen, that
the possessor of the goods was either a thief or receiver
of stolen property. In the case before us, however,
the presumption arises not under s. 114 of the Evidence Act but under s. 4( 1) of the Prevention of
Corruption Act.
It is well to bear in mind that
whereas ·under s. 114 of the Evidence Act it is open
to the Court to draw or not to draw a presumption as
to the existence of one fact from the proof of another
fact and it is not obligatory upon the court to draw
such presumption, under sub-s. ( 1) of s. 4, however,
if a certain fact is proved, that is, where any gratification (other than legal gratification) or any valueable thing is proved to have been received by an
accused person the court is required to draw a
presumption that that person received that thing as a
motive of reward such as is mentioned ins. 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 .vas
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 s. 114 of the 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 s4own that the explanation is a true one.
The
words 'unless the contrary is proved' which occur
1962
Dhanl1411trai
Balwantrai Dest;,.
v.
Stall of Maharar~
Mudho/J;ar,J.
1962
Dhanvantrai
alwontrai Desai
v.
-'e of Maharashtra
Mudholka, J.
498
SUPREME COURT REPORTS [1963] SUPP.
_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,
therefore, the explanation is supported by proof, the
presumption created by the provision cannot be said
to be rebutted.
How the burden which has shifted to the accused
unders. 4(1) of the prevention of Corruption Act is to
be discharged has been considered by this Court in
State of Madras v. A. Vc~idyanatha lyer(') where it
has been observed :
"Therefore, where it is proved that a gratification has been accepted, then the presumption
shall at once arise under the section. It introduces au exception to the general rule as to the
burden of proof in criminal cases and shifts the
onus on to the accused. It mav here be mentioned that the legislature has chosen to use the
words 'shall presume' and not 'may presume',
the former a presumption of law and latter of
fact. Both these phrases have been defined in
the Indian Evidence Act, no doubt for the purpose of that Act, but s. 4 of the Prevention of
Corruption Act is in pari materia with the Evidence Act because it deals with a branch of law
of evidence, i.e., presumptions, and, therefore,
should have the same meaning. 'Shall presume'
has been defined in the Evidence Act as
f9llows :
''Whenever it is directed by this Act that the
Court shall presume a fact, it shall regard such
fact as proved unless and until it is disproved."
It is a presumption of law and therefore it is
obligatory on the court to raise this presumption
(I) (1958] S. C. R. 580.
I S.C.R.
SUPREME COURT REPORTS
499
in every case brought under s. 4 of the Preven·
tion of Corruption Act because unlike the case
of presumption of fact, presumptions of law constitute
a branch of jurisprudence."
These observations were made by this Court while
dealing with an appeal against an order of the
Madras High Court setting aside the conviction of an
accused person under s. 161, l.P.C. In that case the
accused, an Income-tax Officer, was alleged to have
received a sum of Rs. 1,000 as bribe from an assessee
whose case was pending before him. His defence was
that he had taken that money by way of loan. The
High Court found as a fact that the accused was in
need of Rs. 1, 000 /- and had asked the assessee for a
loan of that amount.
It was of opinion that the versions given by the assessee and the accused were balanced, that the bribe seemed to tilt the scale in favour of the accused and that the evidence was not
sufficient to show that the explanation offered cannot
reasonably be rejected. This Court reversed the High
Court's decision holding that the approach of the
High Court was wrong.
The basis of the decision of
this Court evidently was that a presumption of law
cannot be successfully rebutted by merely raising a
probability, however reasonable, that the actual fact
is the reverse.of the fact which is presumed. Something more than raising a reasonable probability is
required for rebutting a presumption of law. The
bare word of the appellant is not enough and it was
necessary for him to show that upon the established
practice his explanation was so probable that a prudent man ought, in the circumstances, to have accepted it. According to Mr. Chari here, there is some
material in addition to the explanation offered by
the appellant which will go to rebut the presumption
raised under s. 4 (1) of the Act. He points out that
there is the letter from D. S. Apte addressed to the
appellant, defence Ex. No. 32 collectively, which the
appellant claims to have received on or after March
1962
Dhanoantrai
Balwantrai D11tli
v.
Stat1 of Maharashtra
Mudholkar, J.
1962
Dhanvantrai
Balwantrai Desai
v.
Slt1le of Maharruhtra
Mudholkar, J.
500 SUPREME COURT REPORTS [1963] SUPP.
13, 1959, during his visit to Tolkeshwar. He says
that this le.tter was produced by him immediately
when the police official came to his cabin on April
6, 195\l and recovered from him a sum of Rs. 1,000/·
which the complainant had paid to him.
He points
out that this letter was in the same pocket in
which the money was kept and says that it is conclusive to disprove the money being received by way
of bribe.
He also relise upon the evidence of D.S.
Apte. That evidence, however, does not go further
than the letter. No evidence was, however brought
to our notice to show that the appellant had at any
time asked the complainant to give any money by
way of donation to the temple and indeed there is
evidence to the contrary to the effect that none of the
persons interested in the temple had authorised the
appellent to ·collect any money for meeting the expen·
ses of repairs to the temple. It is because of these
circumstances and because it believed the statement
of the complainant that the appellant had asked him
for a bribe that the High Court did not accept the
appellant's explanation that the money was paid by
the complainant to him for being passed. on to the
temple trustee as true. The High Court disbeli~ved
the evidence of Apte and held the letter to be worth·
less. In doing so it cannot be said that the High
Court has acted unreasonably. It would therefore
not be appropriate for us to place our own assessment
on these two pieces of evidence. Further the question
whether a presumption of law or fact stands rebutted
by the evidence or other material on record is one of
fact and not law and this Court is slow to interfere
with the view of facts taken by the High Court. No
doubt, it will be open to this Court to examine the
evidence for itself where the High Court has proceeded
upon an erroneous view as to the nature of the pre·
sumption or, again, where the assessment of facts
made by the High Court is manifestly erroneous.
The case before us does not suffer from either of these
defects. In the circumstances we dismiss the appeal.
l s.c.R.
SUPREME COURT REPORTS
501
A plea was made before us that in view of the
age of the appellant and the fact that he was just
about to retire when the prosecution was started We
should reduce the sentence to the period already
undergone.
These circumstances were borne in mind
by the learned Special Judge when he passed a substantive sentence of imprisonment of one year only
though the maximum for the offence is seven years.
We do not think that there is room for further reductiol) of the sentence.
A ppool dismissed.
SHABIR HUSSEIN BHOLU
v.
STATE OF MAHARASHTRA
(JAFER IMAM, N. RAJAGOPALA AYYANGAR and J. R.
MunuoLKAR, ]].)
Criminal Trial-Perjury by witnesses -Prosecution ofOrder for prosecution made after conclusion of trial-Legality of
-Committal proceedings-If a stage of Sessions trial-Gode
of Criminal Procedure, 1898 (Act V of 1898), ss. 476 and
479-A.
The appellant appeared as a witness in a jury trial for
murder. Before the Court he g'ave a 'tatemeut contradictory to
the one he had given before the conunitting court. After the
conclusion of the trial and delivery of judgment the Sessions
Judge passed a separate order for prosecution of the appellant
for intentionally giving false evidence.
Held, that the provisions of s. 479A had not been complied
with and no cognizance could be taken of the offence
Two
conditions were laid down for the exercise of the powers under
s. 479A, (i) the court must form an opinion that the person has
committed one of the two categories of offences referred to in
s. 479A, and (ii) the Court must come to the conclusion that for
the eradication of the evils of perjury etc. and in the interests of
1962
Dhanvantrai
Balwantrai Desai
v.
State of Maharashtra
Mudlw/kar, J.
1962