# SUPREME COURT REPORTS [1960(2)] SRI C. I. EMDEN v. THE STATE OF U. P

- **Citation:** [1960] 2 S.C.R. 592
- **Court:** Supreme Court of India
- **Decided:** 1957-07-11
- **Case number:** Criminal Appeal No. 68 of 1958
- **Bench:** B. P. Sinha, P. B. G.Ajendr.Ag.Adk.Ar, K. SuBB.A R.Ao, K. C. D.As GueT.A, J.C. Sh.Ah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/supreme-court-reports-1960-2-sri-c-i-emden-v-the-state-of-u-p-1877
- **Pages:** 13

## Headnote

Prevention of Corruption-Trial on a charge of briberyReceipt of gratification other than legal remuneration, meaning ofStatutory presumption-Whether offends guarantee of equal protection of laws-Rebuttal of presumption-Constitution of India,
Art. I4-Prevention of Cormption Act, I947 (II of r947), s. 4·
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 that he had borrowed
the amount as he was in need of money for meeting the expenses
of the clothing of his children who were studying in school. The
Special Judge accepted the evidence of the contractor and held
that the money had been taken as a bribe, that the defence story
was improbable and untrue, that the presumption under s. 4 of
the Prevention of Corruption Act had to be raised and that the
presumption had not been rebutted by the appellant and accordingly convicted him under s. 161 Indian Penal Code and s. 5 of
the Prevention of Corruption Act, 1947· On appeal the High
Court held that on the facts of the case the statutory presumption under s. 4 had to be raised, that the explanation offered by
the appellant was improbable and palpably unreasonable and
that the presumption had not been rebμtted, and upheld the
conviction. The appellant contended (i) ·thats. 4 was ultra vires
as it contravened Art. 14 of the Constitution, (ii) that the
presumption under s. 4 could not be raised merely on proof of
acceptance of money but it had further to be proved that the
money was accepted as a bribe, (iii) and that even if the presumption arose it was rebutted when the appellant offered a reasonably
probable explanation.
Held, that s. 4 of the Prevention of Corruption Act did not
violate Art. 14 of the Constitution. The classification of public
servants who were brought within the mischief of s. 4 was based
on intelligible differentia which had a rational relation to the
object of the Act, viz., eradicating bribery and corruption amongst
public servants.
Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, [1959]
S.C.R. 279, followed.
A. S. Krishna v. The State of Madras, [1957] S.C.R. 399,
referred to.
The presumption under s. 4 arose when it was shown that
•
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the accused had received the stated amount and that the said
•
amount was not legal remuneration. The word "gratification
•
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S.C.R.
SUPREME COURT REPORTS
593
in s. 4(1) was to be given its literal dictionary meaning of satisfac-
•
I959
tion of appetite or desire ; it could not be construed to mean
money paid by way of a bribe. The High Court was justified in Sri C. I. Emden
raising the presumption against the appellant as it was admitted
v.
that he had received the money from the contractor and the
The State of
amount received was other than legal remuneration.
Uttar Pradesh
State v. Pundlik Bhikaji Ahire, (1959) 6I Born. L.R. 837 and
Promod Chander Shekhar v. Rex, I.L.R. 1950 All. 382, approved.
The State v. Abhey Singh, A.LR. 1957 Raj. 138 and State v.
Pandurang Laxman Parab, (r958) 60 Born. L.R. Su, disapproved.
Even if it be assumed that the presumption arising under
s. 4(1) could be rebutted by the accused giving an explanation
which was a reasonably probable one the High Court was right
in holding that the explanation given by . the appellant was
wholJy unsatisfactory and unreasonable.
_ Otto George Gfeller v. The King, A.LR. 1943 P.C. 2II and
Rex v. Carr Briant, (1943) I K.B. 607, referred to.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 68 of 1958.
Appeal by special leave from the judgment and
order dated July 11, 1957, of the Allahabad High
Court (Lucknow Bench), Lucknow, in Criminal Appeal
No: 515 of 1955, arising out of the judgment and order
dated October 31, 1955, of the Special Judge, Anticorruption, Lucknow, in Criminal Case No. 2/3/32/45
of 1953-55.
'
Frank Anthony, Udai Pratap Singh and P. 0.
Agarwala, for the appellant.
G. O. ~Mathur and 0. P. Lal, for the respondent.
1959. December 15. The Judgmen

## Text

I959
Decembef' IS
592
SUPREME COURT REPORTS [1960(2)]
SRI C. I. EMDEN
v.
THE STATE OF U. P.
(B. P. SINHA, C.J., P. B. G.AJENDR.AG.ADK.AR,
K. SuBB.A R.Ao, K. C. D.As GueT.A and J.C. SH.AH, JJ.)
Prevention of Corruption-Trial on a charge of briberyReceipt of gratification other than legal remuneration, meaning ofStatutory presumption-Whether offends guarantee of equal protection of laws-Rebuttal of presumption-Constitution of India,
Art. I4-Prevention of Cormption Act, I947 (II of r947), s. 4·
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 that he had borrowed
the amount as he was in need of money for meeting the expenses
of the clothing of his children who were studying in school. The
Special Judge accepted the evidence of the contractor and held
that the money had been taken as a bribe, that the defence story
was improbable and untrue, that the presumption under s. 4 of
the Prevention of Corruption Act had to be raised and that the
presumption had not been rebutted by the appellant and accordingly convicted him under s. 161 Indian Penal Code and s. 5 of
the Prevention of Corruption Act, 1947· On appeal the High
Court held that on the facts of the case the statutory presumption under s. 4 had to be raised, that the explanation offered by
the appellant was improbable and palpably unreasonable and
that the presumption had not been rebμtted, and upheld the
conviction. The appellant contended (i) ·thats. 4 was ultra vires
as it contravened Art. 14 of the Constitution, (ii) that the
presumption under s. 4 could not be raised merely on proof of
acceptance of money but it had further to be proved that the
money was accepted as a bribe, (iii) and that even if the presumption arose it was rebutted when the appellant offered a reasonably
probable explanation.
Held, that s. 4 of the Prevention of Corruption Act did not
violate Art. 14 of the Constitution. The classification of public
servants who were brought within the mischief of s. 4 was based
on intelligible differentia which had a rational relation to the
object of the Act, viz., eradicating bribery and corruption amongst
public servants.
Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar, [1959]
S.C.R. 279, followed.
A. S. Krishna v. The State of Madras, [1957] S.C.R. 399,
referred to.
The presumption under s. 4 arose when it was shown that
•
•
-
the accused had received the stated amount and that the said
•
amount was not legal remuneration. The word "gratification
•
-
S.C.R.
SUPREME COURT REPORTS
593
in s. 4(1) was to be given its literal dictionary meaning of satisfac-
•
I959
tion of appetite or desire ; it could not be construed to mean
money paid by way of a bribe. The High Court was justified in Sri C. I. Emden
raising the presumption against the appellant as it was admitted
v.
that he had received the money from the contractor and the
The State of
amount received was other than legal remuneration.
Uttar Pradesh
State v. Pundlik Bhikaji Ahire, (1959) 6I Born. L.R. 837 and
Promod Chander Shekhar v. Rex, I.L.R. 1950 All. 382, approved.
The State v. Abhey Singh, A.LR. 1957 Raj. 138 and State v.
Pandurang Laxman Parab, (r958) 60 Born. L.R. Su, disapproved.
Even if it be assumed that the presumption arising under
s. 4(1) could be rebutted by the accused giving an explanation
which was a reasonably probable one the High Court was right
in holding that the explanation given by . the appellant was
wholJy unsatisfactory and unreasonable.
_ Otto George Gfeller v. The King, A.LR. 1943 P.C. 2II and
Rex v. Carr Briant, (1943) I K.B. 607, referred to.
CRIMINAL
APPELLATE
JURISDICTION:
Criminal
Appeal No. 68 of 1958.
Appeal by special leave from the judgment and
order dated July 11, 1957, of the Allahabad High
Court (Lucknow Bench), Lucknow, in Criminal Appeal
No: 515 of 1955, arising out of the judgment and order
dated October 31, 1955, of the Special Judge, Anticorruption, Lucknow, in Criminal Case No. 2/3/32/45
of 1953-55.
'
Frank Anthony, Udai Pratap Singh and P. 0.
Agarwala, for the appellant.
G. O. ~Mathur and 0. P. Lal, for the respondent.
1959. December 15. The Judgment of the Court
was delivered by
··
GAJENDRAGADKAR J.-This appeal by special leave :Gajendragadkar ].
has been filed by C. I. Emden (hereinafter called the
appellant) who has been convicted under s. 161 of the
Indian Penal Code and under s. 5(2) of the Prevention
of Corruption Act 2of1947 (hereinafter called the Act).
The case against him was that he had accepted a
bribe of Rs. 375 from Sarat Chandra Shukla on January 8, 1953.
The appellant was a Loco Foreman
at Alambagh Loco Shed, and Shukla had secured a
ccmtmct at the same place for the removal of cinder&
76
594
SUPREME COURT REPORTS [1960(2))
'959
from ash pits and for loading coal. This contract had
s.ic. 1. Emde" been given to Shukla in June 1952. The prosecution
v.
case was that the appellant demanded from Shukla
The Stal• of
Rs. 400 per month in order that Shukla may be
Uttar Pmdesh
allowed to carry out his contract peacefully without
G . d-dk 1 any harassment. Shukla was told by the appellant
•J•• raga
0
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·that he had been receiving a monthly payment from
Ram Ratan who had held a similar contract before
him and that it would be to his interest to agree to
pay the bribe. Shukla, however, refused to accede to
this request and that led to many hostile acts on the
part of the appellant. On January 3, 1953, the appellant again asked Shukla to pay him the monthly bribe
as already suggested ; Shukla then requested him to
reduce the demand on the ground that the contract
given to him was for a much lesser amount than that
which had been given to his predecessor Ram Ratan;
the appellant thereupon agreed to accept Rs. 375.
Shukla had no money at the time and so he asked for
time to make the necessary arrangement. The agreement then was that Shukla would pay the money to
the appellant on January 8, 1953. Meanwhile Shukla
approached the Deputy Superintendent of Police,·
Corruption Branch, and gave him information about
the illegal demand made by the appellant. Shukla's
statement was then recorded before a magistrate and
it was decided to lay a trap. Accordingly, a party
consisting of Shukla, the magistrate, the Deputy
Superintendent of Police and some other persons went
to the Loco Yard. Shukla and Sada Shiv proceeded
inside the Yard while the rest of the party stood at
the gate. Shukla then met the appellant and informed
him that he had brought the money; he was told that
the appellant would go out to the Yard and accept
the money. At about 3 p.m. the appellant went out
to the Yard and, after making a round, came to the
place which was comparatively secluded. He then
asked Shukla to pay the money and Shukla gave him
a bundle containing the marked currency notes of the
value of Rs. 375.
A signal was then made by Shukla
and the raiding party immediately arrived on the
scene. The magistra~e disclosed his identity to the
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S.C.R.
SUPREME COURT REPORTS
595
t959
--
appellant and asked him to produce the amount paid
to him by Shukla. The appellant then took out the Sri C. I. Emden
currency notes from his pocket and handed them over
to the magistrate. It is on these facts that charges
The ;;ate of
under s. 161 of the Indian Penal Code and s. 5(2) of Uttar Pradesh
the Act were framed against the appellant.
The appellant denied the charge. He admitted thatGajendragadkar J.
he had received Rs. 375 from Shukla but his case was
that at his request Shukla had advanced the said
amount to him by way of loan for meeting the expenses of the clothing of his children who were studying
in school. The appellant alleged that sin6e he had
been in need of money he had requested Kishan Chand
to arrange for a loan of Rs. 500; but knowing about
his need Shukla offered to advance him the loan, and
it was as such loan that Shukla paid him Rs. 375 and
the appellant accepted the said amount. Both the
prosecution and the defence led evidence to support
their respective versions.
The learned special judge who tried the case believed
the evidence given by Shukla, held that it was sufficiently corroborated, and found that the defence story
was improbable and untrue. The learned judge also
held that on the evidence led before him the presumption under s. 4 of the Act had to be raised and that
the said presumption had not been rebutted by the
evidence led by the defence. Accordingly, the learned
judge convicted the appellant of both the offences
charged and sentenced him to suffer one year's rigorous
imprisonment and to pay a fine of Rs. 500 under s.161
of the Code and two years' rigorous imprisonment
under s. 5 of the Act. Both the sentences were ordered
to run concurrently.
The appellant challenged the correctness and propriety of this order by his appeal before the High
Court of Allahabad. The High Court saw no reason
to interfere with the order under appeal because it
held that, on the facts of the case, a statutory presumption under s. 4 had to be raised and that the said
presumption had not been rebutted by the appellant.
In other words the High Court did not consider the
prosecution evidence apart from the presumption since
596
SUPREME COURT REPORTS [1960(2)]
z959
it placed its decision on the presumption and the
Sri c. 1, Emden failure of the defence to rebut it. In the result the
v.
conviction of the appellant was confirmed, the sentence
The State of
passed against him under s. 161 was maintained but
Ullar Pradesh
the sentence under s. 5(2) of the Act was reduced to
-
k
one year. The sentences thus passed were ordered to
Gajendragad ar J ·
tl
It ·
·
th·
d
h
th
run concurren y.
IS agamst
IS or er t at
e
present appeal by special leave has been preferred by
the appellant. This appeal has been placed before a
Constitution Bench because one of the points which
the appellant raises for our decision is that s. 4(1) of
the Act which requires a presumption to be raised
against an accused person is unconstitutional and
ultra vires as it violates the fundamental right guaranteed by Art. 14 of the Constitution. We would,
therefore, first examine the merits of this point.
The Act was passed in 1947 with the object of
effectively preventing bribery and corruption. Section 4(1) provides that where in any trial of an offence
punishable under s. 161 or s. 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
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. Mr. Anthony, for the
appellant, contends that this seetion offends against
the fundamental requirement of equality before law
or the equal protection of laws. It is difficult to
appreciate this argument. The scope and effect of
the fundamental right guaranteed by Art. 14 has been
considered by this Court on several occasions; as a
result of the decisions of this Court it is well established that Art. 14 does not forbid reasonable classification for the· purposes of legislation; no doubt it
forbids class legislation; but if it appears that the
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S.C.R.
SUPREME COURT REPORTS
597
impugned legislation is based on a reasonable classificx959
ation founded on intelligible differentia and that the Sri c. I. Emden
said differentia have a rational relation to the object
v.
sought to be achieved by it, its validity cannot be
The State of
successfully challenged under Art. 14 (Vide: $hri Ram
Uttar Pradesh
Krishna Dalmia v. Shri Justice S. R. Tendolkar (1).
In the present case there can be no doubt that the Gajendragadkar J.
basis adopted by the Legislature in classifying one
class of public servants who are brought within the
mischief of s. 4(1) is a perfectly rational basis. It is
based on an intelligible differentia and there can be no
difficulty in distinguishing the class of persons covered
by the impugned section from other classes of persons
who are accused of committing other offences. Legislature presumably realised that experience in courts
showed how difficult it is to bring home to the accused persons the charge of bribery; evidence which is
and can be generally adduced in such cases in support
of the charge is apt to be treated as tainted, and so it
is not very easy to establish the charge of bribery
beyond a reasonable doubt. Legislature felt that the
evil of corruption amongst public servants posed a
serious problem and had to be effectively rooted out
in the interest -of clean and efficient administration. That is why the Legislature
decided to
enact s. 4(1) with a view to require the raising of the
statutory presumption as soon as the condition
precedent prescribed by it in that behalf is satisfied.
The object which the Legislature thus . wanted to
achieve is the eradication of corruption from amongst
public servants, and between the said object and the
intelligible differentia on which the classification is
based there is a rational and direct relation. We have,
therefore, no hesitation in holding that the challenge
to the vires of s. 4(1) on the ground that it violates
Art. 14 of the Constitution must fail. Incidentally, we
may refer to the decision of this Court in A. S. Krishna
v. The State of Madras (2) in which a similar challenge
to the vires of a statutory presumption required to be
raised under s. 4(2) of the Madras Prohibition Act, 10
of 1937, has been repelled.
(r) [1959] S.C.R, 279,
(2) [1957] S.C.R. 399.
598
SUPREME COURT REPORTS [1960 (2))
•959
That takes us to the question of construing s. 4(1).
When does the statutory presumption fall to be raised,
Sri C. I. Emden
v.
and what is the content of the said presumption?
The State of
Mr. Anthony contends that the statutory presump-
. Uttar Pradesh
tion cannot be raised merely on proof of the fact that
-
the appellant had received Rs. 375 from Shukla; in
Gajendragadkar f. order to justify the raising of the statutory presumption
it must also be shown by the prosecution that the
amount was paid and accepted as by way of bribe. This
argument involves the construction of the words
"any gratification other than legal remuneration"
used in s. 4(1). It is also urged by Mr. Anthony that
even ifthe statutory presumption is raised against the
appellant, in deciding the question as to whether the
c6ntrary is proved within the meaning of s. 4(1) it
must be borne in min,d that the onus of proof on the
appellant is not as heavy as it is on the prosecution
in a criminal trial.
Let us first consider when the presumption can be
raised under s. 4(1). In dealing with this question it
may be relevant to remember that the presumption
is drawn in the light of the provisions of s. 161 of
the Indian Penal Code. In substance the said section
provides inter alia that if a public servant accepts
any gratification whatever other than legal remuneration as a motive or reward for doing or forbearing
to do any official act, he is guilty of accepting illegal
gratification. Section 4(1) requires the presumption
to be raised whenever it is proved that an accused
person has accepted " any illegal gratification (other
than legal remuneration) or any valuable thing."
This clause does not include the receipt of trivial
gratification or thing which is covered by the
exception prescribed by sub-s. (3).
The argument is
that in prescribing the condition precedent for raising
a presumption the Legislature has advisedly used the
word "gratifi,cation " and not money or gift or other
consideration. In this connection reliance has been
placed on the corresponding provision contained in
s. 2 of the English Prevention of Corruption Act,
1916 (6 Geo. 5, c. 64) which uses the words "any
money, gift, or other consideration ". The use of the
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S.C.R.
SUPREME COURT REPORTS
'599
word gratification emphasises that it is not the receipt
r!J59
of any money which justifies the raising of the Sri c. r. Emden
presumption; something more than the mere receipt
v.
of money has to be proved. It must be proved that
The State of
the money was received by way of bribe. This
Uttar Pradesh
contention no doubt is supported by the decision of
-
the Rajasthan High Court in The State v. Abhey Gajendragadkar J.
Singh (1) as well as the decision of the Bombay High
Court in the State v. Pandurang Laxman Parab {2).
On the other hand Mr. Mathur, for the State,
argues that the word "gratification " should be construed in its literal dictionary meaning and as such it
means satisfaction of appetite or desire; that is to
say the presumption can be raised whenever it is
shown that the -accused has received satisfaction
either of his desire or appetite. No doubt it is conceded by now that-in most of the cases it would be the
payment of money whjch would cause gr~tification to
the accused ; but he contests. the suggest10n that the
word " gratification " must be confined only to the
payment of money coupled with the right that the
money should have been paid by w~y of a bribe.
This view has been accepted by the Bombay High
Court in a subsequent decision in State v .. Pundlik
Bhikaji Ahire {3) and by the Allahabad High Court in
Promod Chander Shekhar v. Rex {4).
Paragraph 3 of s. 161 of the Code provides that the
word " gratification" is not restricted to pecuniary
gratification or to gratifications estimable in money.
Therefore "gratification" mentioned ins. 4(1) cannot
be confined only to payment of money. What the
prosecution has to prove before asking the court to
raise a presumption against an accused person is that·
the accused person has received a " gratification other
than legal remuneration "; if it is shown, as in the
present case it has been shown, that the accused
received the stated amount and that the said amount
was not legal remuneration then the condition prescribed by the section is satisfied. In the context of the
remuneration legally payable to, and receivable by, a
(1) A.I.R. (r957] Rajasthan r38.
(3) (1959) 61 B.L.R. 837.
(2) (1958) 60 B.L.R. Su.
(4) I.L.R. 1950 All. 382.
600
SUPREME COURT REPORTS
[1960(2)]
x9;9
public servant, there is no difficulty in holding that
,
where money is shown to have been paid to, and
Sri C. J. Emden
d b
h
bl'
d
h
h
d
v.
accepte
y, sue
pu
JC servant an
t at t e sai
Th• State of
money does not constitute his legal remuneration,
uttar Prndesh
the presumption has to be raised as required by the
.
-
section. If the word " gratification " is construed to
Ga1endragadkar f ·mean money paid by way of a bri~e then it would be
futile or superfluous to prescribe for the raising of the
presumpti?n. 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 Legislature in prescribing the
statutory presumption under s. 4(1 ).
In the context
we see no justification for not giving the word
"gratification " its literal dictionary meaning.
There is another consideratio'n which supports this
construction. The presumption has also to be raised
when it is shown that the accused person has received
any valuable. thing. This clause has reference to the
offence punishable under s. 165 of the Code;· and
there is no doubt that one of the essential ingredients
of the said offence is that the valuable thing should
have been received by the !),Ccused without consideration or for a consideration which he knows to be
inadequate. It cannot be suggested that the relevant
clause in s. 4(1) which deals with the acceptance of
any valuable thing should be interpreted to impose
upon the prosecution an obligation to prove not only
that the valuable thing has been received by 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
been received by the accused without anything more.
If that is the true position in respect of the construction of this part of s. 4(1) it would be unreasonable to
hold that the word "gratification " in the same clause
imports the necessity to prove not only the payment
•
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S.C.R.
SUPREME COURT REPORTS
601
of money but the incriminating character of the said
r959
payment. It is true that the Legislature might have Sri c.r. Emd~n
used the word "money " or " consideration " as has
v.
been done by the relevant section of the English
The State of .
statute; but if the dictionary meaning of the word
Uttar Pradesh
" gratification" fits in with the scheme of the section
-·-
·
and leads to the same result as the meaning of the Gajendragadkar f.
word " valuable thing" mentioned in the same clause,
we see no justification for adding any clause to qualify
the word "gratification"; the view for which the
appellant contends in effect amounts to adding a
qualifying clause to describe gratification. We would
accordingly hold that in the present appeal the High
Court was justified in raising the presumption against
the appellant because it is admitted by him that he
received Rs. 375 from Shukla and that the amount
thus received by him was other than legal remuneration.
..
What then is the content of the presumption which
is raised against the appellant? Mr. Anthony argues
that in a criminal case the onus of proof which the
accused is called upon to discharge can never be as
heavy as that of the prosecution, and that the High
Court should have accepted the explanation given by
the appellant because it is a reasonably probable
explanation. He contends that the test which can
be legitimately applied in deciding whether or not the
defence explanation should be accepted cannot be as
rigorous as can be and must be applied in deciding
the merits of the prosecution case. This question has
been considered by courts in India and in England on
several occasions. We may briefly indicate some of
the relevant decisions on this point.
In Otto George Gfeller v. The King (1) the Privy
Council was dealing with the case where the prosecution had established that the accused were in possession
of goods recently stolen and the point which arose for
decision was how the explanation given by the accused
about his possession of the said goods would or should
be considered by the jury. In that connection Sir
George Rankin observed that the appellant did not
(t) A.l.R. 1943 P.C, 2u.
77
602
SUPREME COURT REPORTS [1960 (2)]
1959
have to prove his story, but if his story broke down
Sri C.I. Emden the jury might convict. In other words, the jury
v.
might think that the explanation given was one which
The state of
could ·not be reasonably true, attributing a reticence
Uttar P.adesh
or an incuriosity or a guilelessness to him beyond any-
. -
thing that could fairly be supposed. The same view
Ga;endrngadkar J. was taken in Rex v. Carr Briant (1 ) where it has been
observed that in any case where either by statute or
at common law some matter is' presumed against an
accused, " unless the contrary is proved the jury
should be directed that it is for them to decide whether
the contrary is proved, that the burden of proof
required is less than that required at the hands of the
prosecution in proving the case beyond a reasonable
doubt, and that the burden may be discharged by
evidence satisfying the jury of the probability of that
which the accused is called upon to establish " (p. 612).
In other wor.ds, the effect of these observations appears
to be to relax to some extent the rigour of "the
elementary proposition that in civil cases the preponderance of probability may constitute ~ufficient ground
for a verdict" (p. 611).
(Also vide: Regina v.
Dunbar(')). It is on the strength of these decisions
that Mr. Anthony contends that in deciding whether
the contrary has been proved or not under s. 4(1) the
High Court should not have applied the same test as
has to be applied in dealing with the prosecution case.
The High Court should have inquired not whether the
explanation given by the appellant is wholly satisfactory but whether it is a reasonably possible explanation
or not. On behalf of the State it is urged by
Mr. Mathur that in construing the effect of the clause
"unless ·the contrary is proved" we must necessarily
refer to the definition of the word "proved" prescribed
by s. 3 of the Evidence Act.
A fact is said to be
proved when, after considering the matter before it,
the Court either believes it to exist or considers its
existence so probable that a prudent man ought under
the circumstances of the particular case to act on the
supposition that it exists. He has also relied on s. 4
which provides that whenever it is directed that the
(I) (1943) I K.B, 6o7.
(2) (1958) I Q.B. I at p. II,
-
-
•
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S.C.R.
SUPREME COURT REPORTS
603
court shall presume a fact it shall record such fact as
r959
proved unless and until it is disproved. The argument Sri C.I. Emden
is that there is not much room for relaxing the onus
v.
of proof where the accused ,is called upon to prove the
The stale of
contrary under s. 4(1).
We do not think it nec~ssary UllarPradesh
to decide this point in the present appeal. We are ' . -
prepared to assume in favour of the appellant that Ga;endragadkar J.
even if the explanation given by him· is a reasonably
probable one the presumption raised against him can
be said to be rebutted. But is the explanation given
by him reasonably probable? That is the question
which must now be considered.
"' What is his explanation? He admits that he received
Rs. 375 from Shukla but urges that Shukla gave him
this amount as a loan in order to enable him to meet
the expenses of the clothes for his school-going children.
In support of this the appellant gave evidence himself,
and examined other witnesses, Kishan Chand and Ram
Ratan being the principal ones amongst them. The
High Court has examined this evidence and has disbelieved it. It has found that Kishan Chand is an
interested witness and that the story deposed to by
him is highly improbable. Apart from this conclusion
reached by the High Court on appreciating oral
evidence adduced in support of the defence plea, the
High Court has also examined the probabilities in the
case. It has found that at the material time the
appellant was in possession of a bank balance of
Rs. 1,600 and that his salary was about Rs. 600 per
month. Besides his children for whose clothing he
claims to have borrowed money had to go to school in
March and there was no immediate pre~sure for
preparing their clothes. The appellant sought to
overcome this infirmity in his explanation by suggesting that he wanteg to reserve his bank balance for the
purpose of his daughter's marriage which he was
intending to perform in the near future. The High
Court was not impressed by this story; and so it
thought that the purpose for which the amount was
alleged to have been borrowed could not be a true
purpose. Besides the High Court has·also considered
whether it would have been probable that Shukla
604 .
SUPREME COURT REPORTS [1960 (2))
x959
should have advanced money to the appellant.
Having regard to the relations between the appellant
Sri C.I/!mden and Shukla it was held by the High Court that it was
The State of
extremely unlikely that Shukla would have offered to
Utta• Pradesh
advance any loan to the appellant. It is on a consideration of these facts that the High Court came to
G"jendragadkar J. the conclusion that the explanation given by the
accused was improbable and palpably unreasonable.
It is true that in considering the explanation given
by the appellant the High Court has incidentally
referred to the statement made by him on January 8,
1953, before the magistrate, and Mr. Anthony has
strongly objected to this part of the judgment. It is
urged that the statement made by the appellant before
the magistrate after the investigation into the offence
had commenced is inadmissible. We are preparea to
assume that this criticism is wellfounded and that the
appellant's statement in question should not have
been taken into account in considering the probability
of his explanation; but, in our opinion, the judgment
of the High Court shows that not much importance
was attached to this statement, and that the final conclusion of the High Court was substantially ba~ed on
its appreciation of the oral evidence led by the defence
and on considerations of probability to which we have
already referred. Therefore, we are satisfied that the
High Court was right in discarding the explanation
given by the appellant as wholly unsatisfactory and
unreasonable. That being so it is really not necessary
in the present appeal to decide the question about the
·nature of the onus of proof cast upon the accused by
s. 4(1) after the statutory presumption is raised against
him.
·
In the result the appeal fails, the order of conviction
and sentence passed against the appe\lant is confirmed
and his bail bond cancelled.
Appeal dismissed.
'