# STATE OF ASSAM v. KRISHNA RAO

- **Citation:** [1973] 2 S.C.R. 239
- **Court:** Supreme Court of India
- **Decided:** 1972-09-15
- **Bench:** D. Du<\, H. R. Khanna
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-assam-v-krishna-rao-5846
- **Pages:** 18

## Headnote

239
Preve111io11 of Corruption Act, (2 of 1947)-Section 4 (l)-Pres11111.
ption under-Ingredients 10 be satisfied for draH•ing pres111n{Jtion.
In order to raise the presumption under s.4 (I) of the prevention of
Corruption Act what the prosecution has to prove is that the accused per·
son has received 'gratification other than legal remuneration'. and when
it is shown that he has received a certain sum of money \Vhich \\'as not a
legal remuneration, then, the condition prescribed by the section is satisfied and the presumption thereunder must be raised.
To raise the presumption it is not necessary to show that the receipt of the gratification
was accepted as bribe.
In other words, the faetum of receipt of money
with a conscious mind or guilty conscience is not necessary
in order to
bring the case \.vithin the purview of section 4. The \\'ord 'gratification' in
section 4(1) has to be given its literal dictionary meaning of satisfaction
of apetite or desire; it could not be construed to mean money paid by
way o'f a bribe. The words 'unless the contrary is proved' mean that the
presumption raised by section 4 has to be rebutted by proof and not b)'
explan,tion which may be merely plausible. The required .proof need not
be such as is expected for sustaining a criminal conviction; it need only
establish a high degree of probability. [252G-253C]
Staie of Madras v. Vaidianatha Iyer, [1958] S.C.R. 580; E111de11 v.
The State of U.P., [1960] 2 S.C.R. 692; Dhal'antrai v. State of l>f<1/w.
rashtra, A.LR. 1964 S.C. 575; Jhaagan v. State of U.P., [1966] 3 5.C.R.
736 and S. N. Bose v. Stare of Bihar, referred to.

## Text

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STATE OF ASSAM
v.
KRISHNA RAO
(With connected Appeal)
September 15, 1972
[[. D. DU<\ AND H. R. KHANNA, JJ.)
239
Preve111io11 of Corruption Act, (2 of 1947)-Section 4 (l)-Pres11111.
ption under-Ingredients 10 be satisfied for draH•ing pres111n{Jtion.
In order to raise the presumption under s.4 (I) of the prevention of
Corruption Act what the prosecution has to prove is that the accused per·
son has received 'gratification other than legal remuneration'. and when
it is shown that he has received a certain sum of money \Vhich \\'as not a
legal remuneration, then, the condition prescribed by the section is satisfied and the presumption thereunder must be raised.
To raise the presumption it is not necessary to show that the receipt of the gratification
was accepted as bribe.
In other words, the faetum of receipt of money
with a conscious mind or guilty conscience is not necessary
in order to
bring the case \.vithin the purview of section 4. The \\'ord 'gratification' in
section 4(1) has to be given its literal dictionary meaning of satisfaction
of apetite or desire; it could not be construed to mean money paid by
way o'f a bribe. The words 'unless the contrary is proved' mean that the
presumption raised by section 4 has to be rebutted by proof and not b)'
explan,tion which may be merely plausible. The required .proof need not
be such as is expected for sustaining a criminal conviction; it need only
establish a high degree of probability. [252G-253C]
Staie of Madras v. Vaidianatha Iyer, [1958] S.C.R. 580; E111de11 v.
The State of U.P., [1960] 2 S.C.R. 692; Dhal'antrai v. State of l>f<1/w.
rashtra, A.LR. 1964 S.C. 575; Jhaagan v. State of U.P., [1966] 3 5.C.R.
736 and S. N. Bose v. Stare of Bihar, referred to.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal Nos. 92
& 93 cf 1970.
Appeals by special ieave from the judgment and order dated
April 30, 1969 of the Assam & Nagaland High Court at Gauhati
in Cr. As. Nos. 61 & 62 of 1968.
·
G. L. Sanghi and R. N. Sachthey,' for the appellant (in both
the appeals).
A. S. R. Chari, Shiv Pujan Singh and R. Nagaratnam
for
the respondents. (in both the appeals).
'
The Judgment of the Court was delivered by
DuA, J. These two appeals by the State of Assam
(Cr!. A.
No. 92 of 1970 State of Assam vs .. Krishna Rao and Crl. A. No.
93 of 1970 State of Assam vs. M. D. Bajid) under Art. 136 of
the Constitution are directed against the common judgment of the
Assam & Nagaland High Court dated April 30, 1969 allowing
two appeals by the two respondents (Cr!. A. 61 of 1968-:M. D.
240
SUPREME COURT REPORTS
[1973] 2 s.c.R.
Bajid vs. State of Assam and Cr!. A. 62 of 1968 V. Krishna Rao
vs. The State of Assam) against two separate judgments of the
Special-IudJie, Gauhati dated June 12, 1968 in two separate trials.
Though the High Court recorded a common judgment, it dealt
with the two cases separately.
We also propose to dispose of
both the appeals by a common judgment.
The relevant facts giving rise to the two cases, the essential
features of which are largely common, may now be stated. Accused Krishna Rao was a Garrison Engineer, MES at Jorhat and
M. D. Baj id (appellant in the other case) was tb,e Assistant Garrison Engineer under him. During the term of office of these two
officers, it is alleged that Messrs Barakar Engineedng and Foundry
Works, Calcutta were contractors under the MES, Jorhat for supplying fabricated building materials and for raising structures with
that material at the sites selected by the MES. The Chief Engineer, Eastern Command, it is not disputed, is the person who
entered into the contract and after the contract was accepted the
accu;ed Krishna,Rao in the capacity of Garrison Engineer was
in owrall charge of the execution of that contract and M. D. Bajid
wa'; his Assistant.
According to the terms of the contract the
contractor was entitled to receive 75% of the value of the goods
supplied through running account bills.
These payments had to
be vetted in the first instance by Bajid as Assistant Garrison Engin~er. For the goods already supplied two running bills were submitted and the payments'/ under those bills were made upto May
21, 1964.
According to the prosecution case Krishna Rao ail
the time kept harassing the contractor with the motive of getting
bribe and sometimes he expressed to the contractor's agent his
desire in this respect. Even in regard to the two bills which were
duly paid some defects were sought to be created by Krishna R;io
after, passing them.
The third bill duly submitted was delayed
on various objections with the object of extracting a bribe· and
ultimately on August 12, 1964 Krishna Rao demanded a bribe
from C. L. Noronha, the Chief Administrative Officer, who was
also attorney of the contractor company. Noronha informed the
police who arranged a trap with the result that on August 13,
1964 first Krishna Rao was caught accepting a bribe of Rs. 10,000
from Noronha and thereafter Bajid was caught when he received
Rs. 5,000 as bribe from the same individual in a similar manner.
The prosecution story is narrated by C,,L. Noronha (P.W. 3),
the man directly concerned with the matter, S. P. Chaliha (P.W. 1)
who was in August, 1964 posted as Income-tax Officer, A Ward
at Jorhat, A. C. Barua (P.W. 2), Sub-Divisional Officer, Planning. at Jorhat and K. C. Kapur (P.W. 5), Dy. Superintendent of
Police, S.P.E., C.I.A.
C. L. Noronha (P.W. 3) has stated in his evidence how Krish!).a
Rao, accused, as Garrison Engineer tried to delay the payment of
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~AM v. Klll.SHNA. RAG (Dua, /,)
241
tbe two R.A.R. ( ru!)ning account receipt) bills of the contractor
firm and conveyed to the witness the usual expectation of the stall
to get 20'Jc, of the bills by way of commission. We do not consider it necessary to go into this evidence in detail because, according to the Special Judge trying the accused, there being a solitary
sta.te111ent of P.W. 3 in this respect it was not safe to rely on it
8 · without some corroboration assuring its trust-worthiness. According to the trial court P.W. 3 claims to have informed his company
superiors about the demand of bribe by Shri Krishna Rao on
behalf of the MES staff but none of those superiors appeared as
witnesses. The demand and the delay in the payment of R.A.R.
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bills with the motive of extorting bribe, in the opinion of the
Special Judge, was not true beyond reasonable doubt. We would,
therefore. concentrate on the prosecution case regarding information of the demand of bribe to the police and the trap laid for
catching the two accused persons.
According to Noronha, realising that Krishna Rao was persisD
tent in his demand of bribe and with that end in view who obstrocting clearance of the payment of their R.A.R. bills he resolved to
inform the police for necessary action. On August 11, l 964 he
accordingly went to the office of the Superintendent of Police.
S.P.W., Partk Street and narrated his complaint to the S. P. Mr.
Choudhury. The matter being outside Mr. Choudhury's jiirisdicE
tion he expressed his inability to take its cognizance but as two
officers. Kapur, Dy. S. P. and his assistant Bishnoi happened to be
present in that office P.W. 3 was introduced to them.
P.W. 3
thereupon filed his written complaint Ex. I with thes.e officers,
Next day i.e., August 12, 1964 P.W. 3, along with those two
officers, went to Jorhat arriving there at. about 1 or 2 p.m. P.W. 3
contacted Krishna Rao at about 3 p.m. when the latter enquired
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if arrangements for complying with his demand had been made.
On P.W. 3 !elling Rao that his demand was too high Rao reduced
his own demand to 3 3 of the bills already paid though he
expressed his inability to get any guarantee on behalf of the rest
of the staff. On rough calculation the amount of his demand came
to Rs. 14,000 but the bargain was struck at Rs. 10,0,00. to ?e
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paid oil the following day.
As P.W. 3 ei>pressed hesitation m
taking so much money to Rao's office the latter agreed to go to
the contratcor's office in the afternoon of August 13, 1964, to
collect the amount. On his way to Rao's offi~e P.W. 3 also ~t
the other accused Bajid. He too demanded his share of commission at 33. The amount acceptable to hi~ was, however, fixed
at Rs. 5,000, as he repre.sented th~t it was his. ~uty to orepare the
ff
R.A.R,. and that he was also in direct s~pei;is1on of the contr:ic;
work. He also agreed to go to the contractors office the followm=
day for eolleeting the am·ouilt between 4 and 5 p.m.
17.-L348 Sop. Cl/73
.
242
SUPllBMB OOUllT llB~TS
[1973] 2 s.c.a.
P.W. 3 narrated to Kapur and Bishnoi all that hapPlllCd
between him and Rao and between him and Bajid.
At about
9-30 or 10 a.m. on August 13, 1964 P.W. 3 contacted Kapur at
the residence of Deputy Commissioner, Jorhat and told him 'that
he would meet him at the Madras Coffee House at about 11-30
a.m. P.W. 3 then contacted Rao and Bajid and on getting assurance about the preparation of the cheque on account of the bill
which was supposed to be for Rs. 90,000 confirmed the arrangement of paying the money demanded.
Rao was to come to .the
office of P.W. 3 at about 1-30 p.m. In the Madras Coffee House
P.W. 3 met Kapur, Bishnoi, who introduced him
to Chaliha,
Income-tax Officer and Barua, Sub-Divisional Officer. All of them
then proceeded to the camp office of P. W. 3. This camp office
consists of three rooms, two of them being bed rooms and one
office room. All of them went to a bedroom where P.W. 3 narrated his plan. This bedroom has three doors and three windows.
One door opens in the front verandah, one in the office room
and the third in the bath room from where there is an exit to the
rear veraudah.
The rear verandah is also connected with the
office room through a door.
All the windows and the doors had
opaque curtains.
The doors and windows opening to the front
verandah were closed and bolted from inside. Three peep holes
were made in the door connecting the bedroom with the office
ro0m. A curtain was also hung on this door to. shut out light from
inside. The table in the office room was kept diagonal-wise placing the chairs on either side. In the bedroom P.W. 3 was asked
to produce the Government currency notes. Kapur noted the
numbers of these notes which were of one hundred rupee denomination.
After P.W. 3 was searched the currency notes were
besmeared with a white powder (phenol-phalein powder) and
instruction was given that if anybody touched the notes, then,
when his lingers were dipped in water, that water would tum
reddish. The notes were given back to P.W. 3 with instructions
that the amount should be paid to Krishna Rao only on his demand.
P.W. 3 then went to the office adjoining the bedroom. At about
· 1.40 p.m. Rao, accused, arrived in the office.
Thereafter what
happened had better be stated in the words of P.W. 3 himself :
"I greeted him heYo Mr. Krishna Rao, come in,
come in, as he took his seat I closed the front door for
privacy's sake. Thereafter I told Mr. Krishna Rao 'Don't
.you think your demand is too much ?' He said '3 per
cent is my normal rate'. I told him 'will ten thousand
be 0.K. as agreed ?' He nodded his head in the affirmative. I took out the bundle of notes from my right hand
pocket sitting with his back near the door connecting
the bed room. He picked up the bundle! of notes, fiddled
with the same for a while and kept the same in his
trouser's right hand pocket. He then got up and was
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AssAM v. KRISHNA RAO (Dua, /.)
just wal)Ung towards the front verandah door.
I also
·stood up.
By this time the raiding party comprising
Mr. Kapur, Mr. Chaliha, Mr. Baruah and Mr. Bishnoi
rushed into the office room. Mr. Kapur shouted I am
D.S.P. of Police and produced his identity card. Mr.
Krishna Rao turned round. Mr. Kapur asked Mr.
Krishna Rao to produce the smeared money which he
had just received from me.
Mr. Bishnoi caught hold
ot the hand.of Mr, Krishna Rao to search him and Mr.
Kapur searched the person of Mr. V. Krishna Rao. From
the right hand side of the pant pocket of Shri Krishna
Rao Mr. Kapur took out the bundle of 100 rupee G.C.
notes.
Some other loose currency notes and identity
·card were also recovered from him."
243
Mr. K. C. Kapur, Dy. S.P.E. appeared as P.W. 5 and substantiaily corroboraled the testimony of P.W. 3. The two witnesses not connected with the police, Chaliha, Income-tax Officer
and A. C. Barua, Sub-Divisional Officer, Planning, appeared as
P.W. 1 and P.W. 2 respectively. They also fully corroborated in
all material particulars the testimony of Noronha.
Accused Krishna Rao in his statement under s. 342, Cr. P.C.
denying the allegation of his demand for bribe admitted his presence in the office of the contractor at about 1-30 p.m. on August
13, 1964.
This is what he said:
"On 13-8-1964 just at about 1-30 p.m. I was taken
to the site office godown by Sbri Srivastava and Shri
Chatt~ee in their jeep for inspection of stores. Earlier
at 10-30 a.m. Shri Noronha had asked me to increase
the value of the R.A.R. to Rs. 1 lac. saying that some
stores are lying in his godown which had not been
accounted for in the 3rd R.A.R. and that I could inspect
it and then raise· the amount.
To this I told that I
should be satisfied about the existence of the stores before I could make addition and alteration in the payment
and in the R.A.R. and then be told me that he would
send Mr. Chatterjee and Srivastava."
When questioned about his: having picked up the bundle of notes
of Rs. 10,000 produced by Noronha and put by him in his pocket,
which were recovered by K. C. Kapur in the presence of P.Ws.
Chaliha, Barua, Bishnoi and Noronha, he replied :
"It is not correct, the actual fact is when I reached
the camp Office along with Srivastava and Chatterjee
Noronha was standing at the gate, be said that the stores
arc lying in the backyard and he led me inside the house.
When I entered the office room he closed the front door
244
SUPREME COURT l\E~TS.
(1973) 2 S.C.ll..
and bolted it when he became angry on my objection
he told me that he would teach me a lesson and he
pushed something my right hand pocket.
Then Mr.
Bishnoi came and Mr. Kapur brought out the bundle
from my pocket and I could then know that it was a
bundle of G.C. Notes.
I wanted to 11iake a statement
but (illegible) did not hear it and did not record it.
Shri Cfialiha and Shri Barna came later on and with
their help Shri Kapur prepared the Memo."
Rao also said that he would file a written statement. In his written
statement he repeated what he had stated in court under s. 342,.
Cr. P.C. and nothing new was added 'therein.
Shanti Ratna Chakravarty was produced as defence witness
No. I. He vas an Upper Division Clerk in C.W.E., Jorhat. According to li.im on August 13, 1964 during lunch interval he saw
Srivastava and Chatterjee with Rao coming out from the G.E:s
office room. They all boarded a jeep and left that place.
<\fter
lunch he al•o saw Bajid going to Garrison Engineer's office. He
then saw Chatterjee and Srivastava coining out of the office of
the Garrison Engineer. They also got into the jeep and left. After
Singh (D.W. 2) is a Surveyor Assistant (I) in G.E. (Project),
Jorhat. He has also deposed that on August 13 at about 1.50 p.m.
Krishna Rao left his office
with
Srivastava
and
Cahtterjee.
Chatterjee was at that time the sub-contractor under Messrs Barakar Engineering Company and Srivastava was the Chief Engineer
of the sa'1d company. No reference was placed by the accused on
the evidence of J. A. James DW 2.
The leraned Special Judge considered the
two
prosecution
witnesses, Chaliha and Barua. as independent witnesses having no
animosity towards the accused persons. These witnesses had both
heard what had transpired between Noronha and Rao and seen
that money was passed by Noronha to accused Rao who pocketed
the same at once. They have also deposed that when caught the
accused became dumb-founded and nan-plussed and there was no
explanation from him.
An objection was also raised in the trial court about the legality
of the sanction to prosecute the two accused persons but the court
considered Ex. 40, read in the light of the evidence of P.W. 4,
to be proper sanction.
Believing the prosecution evidence the
court convicted accused Rao a!'ld sentenced to rigorous imptisonment for one year on each count under s. 161. I.P.C. ands. 5(2)
read with s. 5(1 )(d) of the Prevention of Corruption Act· and
also to fine of Rs. 1.000 under s. 5 (2) of the Prevention of
Corruption Act and with further rigorous imprisonment for three
months in case of default.
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ASSAM v. KRISHNA ll'AO (Dua, J.)
245
In so far as Bajtd is concerned, it is in evidence that after
the trap of Krishna Rao, who was caught demanding and accepting Rs. 10,000 from P.W. 3 as bribe, al! the P.Ws went back to
the same bedroom.
There P.W. 3 then narrated his complaint
against Bajid. It was to the same effect as Ex. 1 which had been
previously given to the Dy. S. P. After narrating the facts before
Chaliha and Barua P.W. 3 produced Rs. 5,000 in Government
currency notes of the denomination of Rs. 100 each. Mr. Kapur
took down the numbers of the Government currency notes and
then a memo was signed of P.W. 3 and the other witnesses. After
searching the person of P.W. 3 the currency notes were handed
over to him by the Dy. S.P. with instruction that the same shouldl
be paid to Bajid on his demand.
The remaining · version had
better be reproduced in the words af P.W. 3 himself :
"I had also informed the members of the raiding
party about the time that is about 4 O'clock when Mr.
Bajid would be coming to my office
to receive the
amount.
All these functions were completed in the
bedroom by about 3-30 p.m.
I was directed by Mr.
Kapur to take my seat in the adjoining office room and
wait for Mr. Bajid. Round about 4 O'clock Mr. Bajid
entered my room along with my Chief Engineer Shri
Srivastava whom I asked to leave us for a few minutes.
Mr. Bajid tok his seat on the chair facing the bedroom
door in which the peepholes had been made. As soon as
Mr. Srivastava left I closed the front door and took
my seat on the other chair with' my back to the bedroom
door. At this time I told Mr. Bajid 'I think your demand
is too high'. Mr. Bajid told me '3 p.c. in all' I told him,
'Are you satisfied in 3 p.c. in all ?' He said 'Yes, yes'.
On this I took bundle of G.C. notes from my right hand
trouser pocket aifd placed the same on the table- before
us. Mr. Bajid took the bundle in his hand and put the
same in the right harid pocket of his pant. Then I told
him that 'you have now received Rs. 5,000 how much
more you want?' liis reply was· 'Whatever is the balance'.
I then said 'Are you sure there would be no more
trouble?'
He said 'Yes, of course'.
At this stage I
touched my head with. my hand which was a prearranged
signal given to me by the Dy. S. P. ·Immediately then
the raiding party headed by Mr. Kapur, Dy. S. P. rushed
into t~e office room. On this Mr. Kapur disc!osed his
identity to Mr .. Bajid and also that of the witnesses with
him.
Mr. Kapur asked Mi: Baik! (about) the bribe
amount that he had teken from me.
Mr. Bajid was
absolutely upset and was thunder shock.
He did not
r~nly to the Dy. S. P. but uttered the words 'Noronha
246
SUPREME OOURT REPOl!.TS .
[1973] 2 s.c.R.,
Saheb ne mujhko dhoka diya hai'. Mr.
Baiid had
stood up froin the chair and his person was searched
by Mr. Kapur, Dy. S.P. A bundle of G.C. notes was
recovered' from the right hand pocket of pant of Mr.
Bajid by Mr. Kapur. From his personal search certain
other currency notes and some papers were also recovered.
The number of the recovered G.C.
notes were
checked by Mr. Chaliha and Mr. Baruah with the numbers mentioned in Memo Ext. 2 and they tallied. Thereafter Mr. Kapur drew up a recovery list noting down
the number of _the (illegible) list.
During the course
the said list was being prepared by Mr. Kapur, Mr.
Kapu~ asked him "Why he had taken this amount' At
this Mr. Bajid said 'Mujhko bachao deo' Ex. 3 is that
·recovery list which bears my signature also."
P. W. 3 was corroborated by the evidence of Kapur, Dy. S.P.
who appeared as P.W. 6 Dy. S. P. Chalia (PW 1) and A. C.
Baruah (PW 2). In his statement under s. 342, Cr. P.C. Bajid
denied any demand having been made by him for commission at
33 from Noronha. In·defence Shanti Ranjan Chakravarty, Avtar
Singh and J. A. James (D. Ws. 1, 2 and 3 respectivefly) were
produced. The first two witnesses deposed to having seen Bajid
going with Chatterjee between 2-30 and 3 p.m.
Bajid's explanation for going to the contractor's office is con·
tained in answer to que5tion No. 4. He said :
" .... that at about 3 p.m. on 13·8· 1964 when I was
sitting with Avtar Singh S.A. (II) in his room Mr. ,
Chatteerjee of the M. B. Industries Sub-Contractor of
Barakar appeared in the room and told me that Shri
Rao wanted me at site in connection with checking of
the stores.
He also told me that he has brought his
vehicle a jeep and l might go along with him."
In answer to question No. 7 he said :
"The fact is that as soon as I (?) entered the room
Mr. Noronha bolted the rooni from inside and he pulled
out something from his pant pocket and pushed the
same into my pant pocket. I was non-plussed and asked
him what he was doing. At that very moment 3 persons
rushed inside the room from the backdoor of the office
room and one of them gave his identity as Dy. S. P.
Central Intelligence Branch, stated loudly and induced
me to keep the hands up, he caught hold both of my
hands up finally and the bundle was pul!ed out from
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my pocket, which I saw as G.C. notes.
I wanted to
protest and wanted to say what had happened earlier
but they did not listen to me.".
247
In his written statement he said practically the same thing as had
been stated by him in court under s. 342, Cr. P.C. with the only
di1ference that in the written statement he somewhat elaborated
the details.
The trial court convicted Bajid as well holding the prosecution
version to have been fully established and finding the explanation
of the accused untrustworthv. Like Rao he was also sentenced to
rigorous imprisonment for one year on each count urider s. 16 l,
I. P.C. and under s. 5(2) read withs. 5(l)(d) of the Prevention
of Corruption Act.
He was all;o sentenced to fine of Rs. 500
With further rigorous imprisonment for one month in case of
default.
On two separate appeals, the High Court dealt with the cases
of the two accused separately though by means of a common
judgment.
The learned single Judge of the High Court at the
outset referred to the English decision in Brannan v. Peek(') and
to the decision of this Court in Rao S. B. Sin11h & Anr. v. State !>f
Vindhya Pradesh (2 ) and observed that in trap cases the matter
has to be looked into with great circumspection. In the light of
this observation the High Court ~id that Noronha's evidence
required corroboration by some independent witnesses.
As the
prosecution claimed Chaliha and Barua to be independent witnesses and the High Court also felt that they were high-ranking
Government officers whose evidence could not be brushed aside
except for cogent reasons, the learned single Judge discussed the
pros and cons as to whether these witnesses could actually see the
alleged acceptance of the bribe and hear the conversation between
Noronha and the accused relating to the bribe in question, After
referring to the evidence with regard to the peepholes the High
Court felt some doubts about the boring of peepholes prior to the
occurrence as alleged.
In entertaining the doubt in the matter
of peepholes the High Court was principally influenced by the
fol10V1inr factors :-
( 1 ) In Ex. 2, the memorandum drawn up after. the
rehearsal rega,rding the currency notes, which had been
treated with phenolphalein powder, there was no reference to the peepholes having been bored though, according to the witnesses, that had been done before
drawing up the memorandum;
(l) [1947] 2 All E.R. 572.
(2) [1954] S.C.R. 1098.
248
SUPREME COURT REPORTS
[l 973] 2 S.C.R.
(2) the size of the peepholes was differently given
by different witnesses;
·
( 3) the version by the witnesses didJiot tally as to
who had prepared how many peephol'es and with what
instruments;
( 4) the nail and the ·hammer which were said to
have been used for boring the peepholes were not seized
by the police and were. therefore. not exhibited; and
( 5) though P. W. 9 had stated that the doors in which
peepholes were bored were made of tin, according to
K. C. Kapur, Dy. S.P. (P.W. 5) they were made of
plywood.
The High Court also entertained some doubt about the version
that Chaliha could with one eye peep through the lower hole of
small dimension and see the entire transaction.
These circumstances, broadly speaking, weighed with the High Court in entertaining reasonable doubt as to whether the peepholes had at all
been bored before the incident and this, according to the Court,
also reflected or the trustworthiness of the two independent witnesses who were highly pfaced Government officiJI<.
While expressing this doubt the High Court added that it was improper
to take the help of Government servants in such matters. Being
inter~ted in the success of the trap these witnesses, in the High
Court's view, could not be considered to be so independent as to
be uninfluenced by a desire to secure from the court conviction
on the ha.sis of their evidence. The High Court further entertained
reasonable doubt whether Chaliha and Barua could have heard
the conversation between Noronha and Rao.
The High Court
further felt that there was no corroborative evidence regarding
assurance of payment of bribe in regard to the payment _of the
second R.A.R.
Indeed, the High Court did not feel impressed
by the evidence that the pa'yment of the bills was delayed with the
object of getting bribe. The delay of three months ir. making uayment was due to red'tapism and it could not be fixed on Rao.
The evidence of Chaliha and Barua was thus not believed regarding:
the actual factum of the acceptance of illegal gratification.
In
regard to the question whether the money was thrust into the pocket
of accused because of Noronha's grievance against him. the High
Court observed that there being no independent corroboration of
the acceptance of.the bribe the mere possession and recovery of the
Government currency notes by the raiding party from the persi>n of
Rao was not sufficient to show that this was the money which
'14\d been received by him within the meaning of s. 161, I.P.C. On
this point Noronha's statement was considered to be insufficient
to warrant a conviction in the absence of corroboration by Chaliha
and Barua whose evidence was not fully believed by the High
Court.
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ASSAM v. KRISHNA RAO (Dua, J.)
249
In· regru;d to the defence eevidence the High Court felt that
the dclence version could not be ruled out because the prosecution
had not led any evidence to show as to by which vehicle Rao had
cOlJ1!J to the place of occurrence. The High Court also criticised
Noronha's failure to inform his superior officers about Rao's conduct. Fina]Jy, the omission of the prosecution to dip Rao's hands
in water to see whether it had changed its colour on account of
the application of phenolphalein powder was also considered by
the lligh Court to be a highly important circumstance rendering
the prosecution version unacceptable.
For alJ these reasons the
High Court acquitted Rao. ·
Bi'ijid was also acquitted, broadly speaking, for similar reasons,
with the additional circumstances (i) that according to Chaliha's
Statement he had not seen from the peepholes whether Bajid had
received the n)Oney and (ii) that the copies of depositions of witnesses in Rao's case had not been supplied to Bajid for facilitating their cross-examination and this, according to the High Court,
had prejudiced Bajid to a great extent in the matter of his defence.
The entire trial of Bajid was for this reason considered to
be
tainted with illegality, but the High Court did not feel that it
would be in the interest of. justice at such late stage to consider
the question of remanding the case for re-trial, adding ·that when
on consi.deration of the evidence, it had not been proved that Bajid
had accepted or obtained or agreed to accept or demand any gratification, the question of the accused proving to the contrary in his
defence did not arise.
The High Court further expressed its
opinion that Bajid. bad been decoyed to the place of occurrence
and, therefore, the defence version. which was similar to that
of Rao's was held to be highly probable. The High Court thus,
though ac·cepting the stilry of recovery of currency notes from the·
possession of both the accused persons acquitted them, bsoadly,
for the reasons just statetl.
Before us on behalf of the State of Assam it has been strongly
contended that the prosecution evidence .with regard to the prior
existence of the peoples and the eye-witnesses having seen the
actual passing of money through them .is trustworthy and· should
be accepted. This direct evidence, it is argued, has been wrongly
brushed aside, on the ground of omission to carry out the phenophthalein test in the case of Rao which, in view of direc~ evidence
of passing bf money, was wholly immaterial and on accOl1f!t of
inconsequential cireumstances in the case of Ba.iid.
The High
Court, it is contended, has erred seriously in discrediting the testimony with regard to peepholes for reasons which a~e too slender
to bear scrutiny and also by ignoring considerations of vital
importance.
When once this conclusion of the High Court is
reversed the case for the prosectition. according oo the appellant's
250
SUPREME COURT REPORTS
[1973] 2 s.c.R.
learned counsel, becomes irrefutable. In any event when the
vidence of the recovery of money from the pockets of the pants of
both the accused persons has been accepted and upheld by both
the courts, then, by virtue of s. 4 of the Prevention of Corruption
Act the Courts were legally obliged to raise the presumption that
the two accused had accepted or obtained or agreed to accept or
attempted to obtain that money as a motive or reward such a.• is
mentioned in s. 161, I.P.C. unless the contrary was proved. The
High Court, according to the appellant's submission, has wrongly
declined to raise this ·presumption on the ground that the fli<;tum
of receipt of money with a conscious miitd or guilty conscience is
necessary in order to bring the case within the purview of s. 4.
The counsel invited our attention to- the foilowing observation& of
the High Court- which, according to his submission bring out the
legal infirmity in its approach :-
"The factum of recovery cannot, however, be disputed but in niy opinion such recovery must be the
result of reeeipt of the money and with a guilty conscience. The recovery by itself does not fulfil the conditions of the aforesaid sections. Although it may be one
of the strong circumstances towards the guilt of the
accused, demand an'd acceptance of bribe not being
proved beyond rea5onable doubt, the factum of recovery
alone will not establish the guilt under these sections."
While dealing with the case against Bajid also the High Co11rt
observed:
"The words 'unless the contrary .is proved' occurring
in section 4 (1) of the Prevention of Corruption Act
makes it clear that the presumption has to be rebutted
by proof and not by a bare expl!tnation which is merely
plausible. Before that it has to be shown by the prosecution that the ingredients of offence under section 161
of the Indian Penal Code and section 5 (I)( d) of the
Prevention of Corruption Act have been proved by the
prosecution. The plain meaning of section 4(1) of the
Prevention of Corr\lption Act is that when the offen\:C
under the said section is proved, a presumption is that a
valuable thing has been received by the accused. This
being the position in law, it has got to be seen whether
the accused Bajid received gratification with a conscious
mind. As regards this, I have already said that corroboration of a partisan witness is lacking in this case
also.
Furthermore if the evidence of Sri Noronha is
rejected as uncorroborated by evidence in record the
mere fact that the money was recovered from Bajid
cannot by itself be treated as acceptance within the
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251
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meaning of section 161, Indian Penal Code, although
··::·
it is a very strong circumstance towards proof of guilt.
:H:.
Furthennore the factum of ac1:eptance with a conscious
mind must also require to be proved by the prosecution.
In this view of the matter I am of opinion that recovery
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has been proved but as the ingredients of offence under
section 161, Indian Penal Code have not been satisfied,
namely that the accused received the money wit.'t a
conscious mind, no offence is said to have been satisfied,
namely that the accused received the money with a conscious mind, no offence is said to have been committed."
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In our opinion, there is merit in the appe!Pant's contention thar
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the High Court has taken an erroneous view of s. 4 of the Pre-
;
vention of Corruption Act. That section reads :
"Presumption where public servant accepts gratification other than legal remuneration :
'
4 ( l) Where in any trial of an offence punishable
,
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under section 161 or section 165 of the Indian Penal
Code or of bn 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
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in the said section 161, or, as the case may be, without
consideration or for a consideration which he knows to be
inadequate.
(2) Where in any trial of an offence punishable
under section 165A of the Indian Penal Code or under
clause {ii) of sub-section ( 3) of section 5 of this Act ii
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is PJ"?Ved that any gratifica.tion other than legal ren;unerat1on) or any valuaMe thmg has been given or offered
to be given or attempted to be given by an accused
person, it shall be !>resumed unless the contrary is proved
that he ~ave. or offered to give or attempted to give
that graufica~on or that valuable thing, as the case may
H
be, as a motive or reward such as is mentioned in section 1_61 of the ~ndia~ Peria! Code or, as the case may
-I
be, without constderatton or for a consideration which
he knows to be inadequate.
252
SUPREME COURT REPORTS
[1973] 2 s.c.R.
( 3) Notwithstanding anything contained in sub-secti.on
(1) and (2) the court may decline to draw the pre-·
•.mmption referred to in either of the said sub-sections,
if the gratificatio nor thing aforesaid is, in its opinion,
so trivial that no reference of corrptiOil may fairly be
drawn.''
~
In State of Madras v. A. Vaidianatha Iyer(') after reproducting the relevant provisions of s. 4 of the Prevention of Corruption
Act this Court observed tha1 where it is proved that a grntification
has been accepted, the presumption under s. 4 of the Preventi<' .•
of Corrup1ion Act shall at once arise. It is a presumption of
law and it is obligatory on the Court to raise it in every case
:.irought under s. 4.
In the reported case 1his 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 V.P. (') the appellant, who was working as a loco foreman
was found to have accepted a sum of Rs. 375 from a railway contractor.
The appellant's explanation was 1hat he had bPrrowed
the amount as he was in need of money for meeting the expenses
of the clothing of his children who were sfiidyillg 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 s. 4 of the
Prevention of Co1'ruption Act had to be raised and that the presumption
had
not
been
rebutted
bty
the
appellant
and
accordingly convicted him under
s. 161,
T:P.C.
and
s.
5
of the Prevention ct Corruption Act, 1947.
On
appeal
the
High Court held 1hat on the facts ot that case. the statutory presumption under s. 4 had to be raised, that the explanation offered;
by the appellant was improbablle 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, ( i) that the presumption under s. 4 could not be raised merely
on proof o( acceptance of money but it had further to be proved
·that the money was accepted as a' bribe. (ii) that even if the.presumption arose it was rebutted when the appellant offered a reasonably probable explanation. This Court, dealing with the presumplion under s. 4. observed that such presumption arose when it was
shown that the accused had received the stated amourn and that
·the said amount wa~ not legal remuneration.
The wo•d 'gratification' in s. 4 ( 1 ) was to be given Hs literal dictionary meaning of
satisfaction of appetite or desire; it could not be construed t.o me~n
money paid by way of bribe. The High Court was justified m
raising the presumvtion against the appellant as it was admitted
that he had received the money .from the contractor and the amount
------
(1)[195sfs.C.R. 580.
(2) [1960) 2 S.C.R. 592.
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ASSAM V. KlllSHNA RAO (Dua, J.)
253
received was oth~r than legal remuneration. On the faots theexplanation given by the accused in agreement with the opinion
of the High Court was held to be wholly unsatisfaotory and unreasonable. In Dhanvantrai v. State of Maharashtra(')
it was
observed that in order to raise the presumption under s. 4(1) 'lf
Preventi.on of Corruption 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 presump·
tion thereunder must be raised.
In Jhangan v. State of U.P.(")
the above decisions were approved and it was observed that mere
receipt of money is sufficient to raise the presumption under s. 4
(I) of the Prevention ol Corruption Act.
Recently in S. N. Bose v. State of Bihar(") this Court reviewed the case law on the point and observed :
'iWe next take up the question as to the scope of -
s. 4 of the Prevention of Corruption Act.
As mentioned earlier, the appellant admits the fact that he
received a sum of Rs. 5 from P.W. 4 on March 14,
1964. Once that fact is admitted by him, the court has
to presume unless the contrary is proved by the appellant that he accepted the sum in question as a ·'11otive
or reward for issuing the fit certificate.
Mr. Mookherjca's contention was that the presumption in question
does not arise unless the prosecution proves that the
amount in question was paid as a bribe. He urged that
the. presumption under s. 4 arises only when the prosecuuon proves that the appellant
had
received
'anv
gratification (other than legal remuneration)
or any
valuable thing from any person'.
He laid stress on the
word 'gratification.' and according to him
the word
'gratification' can only mean something that is
given
as a corrupt reward. If this contention of Mr.