# V. D. JHANGAN v. STATE OF UITAR PRADESH

- **Citation:** [1966] 3 S.C.R. 736
- **Court:** Supreme Court of India
- **Decided:** 1966-03-03
- **Case number:** Criminal Appeal No. 157 of 1964
- **Bench:** K. Subba Rao, V. Ramaswami, J. M. SllELAT
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/v-d-jhangan-v-state-of-uitar-pradesh-3740
- **Pages:** 8

## Headnote

B
Prevention of Corruption Act, 1947 (2 o/ 1947), 1. 4(1)-PrUllmprion
under section, when arises-Receipt of money or valuable thin1 hy
accused whether sufTu:ient-Nature of burden of proof on ar:custd for
r1butt/na such presumption.
The appellant, an employee of the Ministry of Commerce was tried
for o1Iellee6 1111der s. 161 of the Indian Penal Code and a. 5(2) read with
t. 5(l)(d) of tho Prevention of Comiption Act on the allegation that he
received a sum of money and aome cloth from a trader. He wu convicted and bis appeal before the High Court failed.
In appeal before thia
Coun the questions that fell for determination
related
to :
(i)
the
circu=tances in which a pr~umption under 8\lb.6. ( 1) of s. 4 of the
Prevention of Corruption Act could arise, and (ii) the nature of the
burden of proof that lay on an accused person to rebut such a p~umpllon
when it arises.
HELD: (i) For a presumption to be raised under s. 4(1) it ii not
necessary for the prosecution to prove anything more than that money or
other valuable thing was received by the accusedi it is not nece918ry toe
tho prosecution, for the above purpose, to prove the incriminating character of the said paym""t. (739 E, Fl
Dhanvantral BalwanrraJ Desai v. State of Maharashtra, A.I.R. 19&4
S.C. 515 and C. I. Emden v. State of Uttar Pradesh, A.l.R. 1960 S.C. 548,
followed.
(ii) The burden of proof lying upon tho accused under s. 4(1) will
be satisfied if the accused penon establishes his case by a preponderance
of probability and it is not necessary that he should establish his case by
tho test of proof beyond a reason.able doubt.
The onus on an accused
~
may well be compared to the onus on a party in civil proceedmgs. (741 BJ
Woolmlngton v. Director of PubUc Prosecutions, [1935] A.C. 462,
Rex ,., Carr-Briant, [1943] 1 K.B. 607 and Harbhajan Singh v. State of
Punjab. [1965] 3 S.C.R. 235, referred to.
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In the pre<ent case the appellant had not proved his case even by
the test of preponderance of probability.
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## Text

V. D. JHANGAN
v.
STATE OF UITAR PRADESH
March 3, 1966
A
(K. SUBBA RAO, V. RAMASWAMI AND J. M. SllELAT, JJ.j
B
Prevention of Corruption Act, 1947 (2 o/ 1947), 1. 4(1)-PrUllmprion
under section, when arises-Receipt of money or valuable thin1 hy
accused whether sufTu:ient-Nature of burden of proof on ar:custd for
r1butt/na such presumption.
The appellant, an employee of the Ministry of Commerce was tried
for o1Iellee6 1111der s. 161 of the Indian Penal Code and a. 5(2) read with
t. 5(l)(d) of tho Prevention of Comiption Act on the allegation that he
received a sum of money and aome cloth from a trader. He wu convicted and bis appeal before the High Court failed.
In appeal before thia
Coun the questions that fell for determination
related
to :
(i)
the
circu=tances in which a pr~umption under 8\lb.6. ( 1) of s. 4 of the
Prevention of Corruption Act could arise, and (ii) the nature of the
burden of proof that lay on an accused person to rebut such a p~umpllon
when it arises.
HELD: (i) For a presumption to be raised under s. 4(1) it ii not
necessary for the prosecution to prove anything more than that money or
other valuable thing was received by the accusedi it is not nece918ry toe
tho prosecution, for the above purpose, to prove the incriminating character of the said paym""t. (739 E, Fl
Dhanvantral BalwanrraJ Desai v. State of Maharashtra, A.I.R. 19&4
S.C. 515 and C. I. Emden v. State of Uttar Pradesh, A.l.R. 1960 S.C. 548,
followed.
(ii) The burden of proof lying upon tho accused under s. 4(1) will
be satisfied if the accused penon establishes his case by a preponderance
of probability and it is not necessary that he should establish his case by
tho test of proof beyond a reason.able doubt.
The onus on an accused
~
may well be compared to the onus on a party in civil proceedmgs. (741 BJ
Woolmlngton v. Director of PubUc Prosecutions, [1935] A.C. 462,
Rex ,., Carr-Briant, [1943] 1 K.B. 607 and Harbhajan Singh v. State of
Punjab. [1965] 3 S.C.R. 235, referred to.
c
D
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F
In the pre<ent case the appellant had not proved his case even by
the test of preponderance of probability.
G
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
157 of 1964.
Appeal by special leave from the judgment and order dated
March 20, 1964 of the Allahabad High Court (Lucknow Bench)
at Lucknow in Criminal Appeal No. 20of1962.
H
Jai Gopal Sethi, C. L. Sareen and R. L. Kohli, for the appellaut.
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JHANGAN v. STATE (Ramaswami, J.)
737.
S. T. Desai, R. L. Mehta and 0. P. Rana, for the respondent.
The Judgment of the Court was delivered by
Ramaswami, J. The appellant was tried for offences under
s. 161, Indian Penal Code and s. 5(2) read with s. 5(1)(d) of the
Prevention of Corruption Act by special Judge, Anti-Corruption,
Lucknow who by his judgment dated January 8, 1962 convicted .
the appellant and sentenced him to three years' rigorous imprisonment and a fine of Rs. 2,000. In default for payment of fine the
appellant was further ordered to undergo rigorous imprisonment
for one year. The appellant preferred an appeal to the Allahabad
High Court, Lucknow Bench, which dismissed the appeal by its
judgment dated March 20, 1964 and affirmed the conviction and
sentence imposed by the Special Judge upon the appellant. This
appeal is brought, by special leave, from the judgment of the Allahabad High Court, Lucknow Bench.
The appellant was employed as Assistant Director Enforcement, Government of India, Ministry of Commerce at Kanpur and
used to deal with matters regarding the cancellation of licences of
cloth dealers at Kanpur. On or about September 5, 1951 the
appellant received a confidential letter dated August 30, 1951 from
the District Magistrate, Kanpur. On the same date the appellant
called one Ram Lal Kapoor who was the legal adviser of New
Victoria Mills Ltd. at his house. The appellant showed him the
letter of the District Magistrate and on the strength of that letter he
demanded through Ram Lal Kapoor a bribe of Rs. 30,000 from
Sidh Gopal for saving his licence from being cancelled. It appears
that Sidh Gopal was a partner of various firms dealing in cloth and
it was suspected that these firms were indulging in black-marketing
in cloth. Sidh Gopal came to the appellant on September 9, 1951
to· talk over the matter and the appellant made the same demand ·
of bribe from him. On September 11, 1951, the appellant is alleged
to have agreed with Ram Lal Kapoor to receive a sum of
Rs. 10,000 as first instalment of the bribe from Sidh Gopal through
Ram Lal Kapoor. Accordingly on September 11, 1951 at about 8
p.m. the appellant went to the house of Ram Lal Kapoor and
accepted the bribe of Rs. 10,000 in currency notes and also a Than
of long cloth from the said Ram Lal Kapoor undertaking that in
lieu thereof the appellant would not report against Sidh Gopal and
thereby save his licence from cancellation. A raid had been prearranged and the raiding party consisting of Shri Satish Chander
P.W. 1 and Shri Onkar Singh P.W. 2, the District Magistrate and the
Senior Superintendent of Police respectively were lying in wait at
the premises of Ram Lal Kapoor. At about 9 ·45 p.m. the appellant came out of the bungalow of Ram Lal Kapoor and on the
agreed signal being given, the raiding party came and on search .of
the appellant an amount of Rs. 10,000 was found from his person.
738
SUPREME COUllT REPORTS
[1966] 3 S.C.R.
At the time of the recovery of the money the appellant made a
statement that the amount received by him was as a loan as he
wanted to purchase a bungalow. The defence of the appellant
was that he never negotiated with Ram Lal Kapoor or Sidh Gopal
regarding the bribe but the appellant had been falsely implicated
because he had prosecuted one Bhola Nath of the firm of M/s
Mannulal Sidh Gopal under s. 7 of Essential Supplies Act and the
District Magistrate had arrested Bhola Nath and kept him under
detention under the powers conferred by the Preventive Detention
Act. In order to take revenge for the arrest of Bhola Nath, Sidh
Gopal and Ram Lal Kapoor had conspired together and falsely
implicated the appellant. The Special Judge disbelieved the case
of the appellant and held that the prosecution evidence sufficiently
established the charges under s. 161, Indian Penal Code and s. 5(2)
read with s. 5(I)(d) of the Prevention of Corruption Act.
The
findings of the trial court have been affirmed by the Allahabad
High Court in appeal which also rejected the case of the appellant
as untrue and held that the amount of Rs. 10,000 was received by
the appellant from Ram Lal Kapoor by way of illegal gratification
and not as a loan for purchasing a house.
The first question for determination is whether a presumption
under sub-s. ( l) of s. 4 of the Prevention of Corruption Act arises
in this case. That provision reads as follows:
"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 or 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 saids. 161, or as the case may be, without consideration or for a consideration which he knows to be
inadequate."
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It was held by this Court in Dhanl'Gntrai Balwantrai Desai v. State of
Maharashtra(') that in order to raise the presumption under this
6
sub-section 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 presumption thereunder must be
raised. It was contended in that case that the mere receipt of
any money did not justify the raising of the presumption and that
(I) A.I .R. 1964 S.C'. 575.
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JHANGAN v. STATE (Ramaswami, J.)
739
something more than the mere receipt of the money had to be proved. The argument was rejected by this Court and it was held that
the mere receipt of the money was sufficient to raise a presumption under the sub-section. A similar argument was addressed in
C. I. Emden v. State of Uttar Pradesh(t). In rejecting that argument this Court observed:
"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 Legislature in prescribing
the statutory presumption under s. 4(1)."
This Court proceeded to state:
"It cannot be suggested that the relevant clause
ins. 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 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; ...... "
It must, therefore, be held that, in the circumstances of the present
case, the requirements of sub-s. (1) of s. 4 have been fulfilled and the
presumption thereunder must be raised.
The next question arising in this case is as to what is the burden
~f pr?of placed upon the accused person against whom the presumptm.n ts drawn ~nder s. 4(1) of the Prevention of Corruption Act.
It is well-established that where the burden of an issue lies upon the
a~used, he is not ~equired to discharge that burden by leading
evidence to prove his case beyond a reasonable doubt. That is,
(!) A.LR. 1960 S.C. 548.
740
SUPREME
COURT
R.BPOR.TS
[1966] 3 S.C.R.
of course, the test prescribed in deciding whether the prosecution
has discharged its onus to prove the guilt of the accused; but the
same test cannot be applied to an accused person who seeks to
discharge the burden placed upon him under s. 4(1) of the Prevention of Corruption Act.
It is sufficient if the accused person
succeeds in proving a preponderance of probability in favour of his
case. It is not necessary for the accused person to prove his case
beyond a reasonable doubt or in default to incur a verdict of guilty.
The onus of proof lying upon the accused person is to prove his case
by a preponderance of probability. As soon as he succeeds in
doing so, the burden is shifted to the prosecution which still has lo
discharge its original onus that never shifts i.e., that of establishing
on the whole case the guilt of the accused beyond a reasonable doubt.
It was observed by Viscount Sankey in Woolmi11gto11 v. Director
of Public Prosecutions(') that "no matter what the charge or where
the trial, the principle that the prosecution must prove the guilt of
the prisoner is part of the common law of England and no attempt
to whittle it down can be entertained". This principle is a fundamental part of the English Common Law and the same position
prevails in the Criminal Law of India. That does not mean that
if the statute places the burden of proof on an accused person, he is
not required to establish his pica; but the degree and character of
proof which the accused is expected to furnish in support of his
plea, cannot be equated with the degree and character of proof
expected from the prosecution which is required to prove its case.
In Rex v. Carr-Briant,(2) a somewhat similar question arose before
the English Court of Appeal.
In that case, the appellant was
charged with the offence of corruptly making a gift or loan to a person in the employ of the War Department as an inducement to
show, or as a reward for showing, favour to him. The charge was
laid under the Prevention of Corruption Act, 1916, and in respect
of such a charge, s. 2 of the Prevention of Corruption Act, 1916,
had provided that a consideration shall be deemed to be given
corruptly unless the contrary is proved. The question which arose
before the Court was: what is the accused required lo prove if he
wants to claim the benefit of the exception? At the trial, the Judge
had directed the jury that the onus of proving his innocence lay on
the accused and that the burden of proof resting on him to negative
corruption was as heavy as that ordinarily resting on the prosecution. The Court of Criminal Appeal held that this direction did
not correctly represent the true position in Jaw.
It was held by the
Court of Appeal that where, either by statute or at Common Law,
some matter is presumed against an accused person "unless the
contrary is proved," the jury should be directed that the burden of
proof on the accused is less than that required at the hands of the
prosecution in proving the case beyo~d a reaso~ab.le doubt, and that
this burden may be discharged by evidence sausfymg the Jury of the
(I) !1935JA.C. 462.
(2) !194311 K.n. 607.
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JHANGAN v. STATE (Ramaswami, !.)
741
probability of that which the accused is called on to establish. The
ratio of this case was referred to with approval by this Court in
Harbhajan Singh v. T71e State of Punjab.(I) We are accordingly of
the opinion that the burden of proof lying upon the accused under
s. 4(1) of the Prevention of Corruption Act will be satisfied if the
accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by
the test of proof beyond a reasonable doubt. In other words, the
onus on an accused person may well be compared to the onus on a
party in civil proceedings, and just as in civil proceedings the court
trying an issue makes its decision by adopting the test of probabilities, so must a criminal court hold that the plea made by the
accused is proved if a preponderance of probability is established by
the evidence led by him.
It is against this background of principle that we must proceed
to examine the contention of the appellant that the charges under
s. 161, Indian Penal Code and s. 5(2) read with s. 5(I)(d) of the
Prevention of Corruption Act have not been proved against him.
It was argued by Mr. Sethi that the circumstances found by the
High Court in their totality do not establish that the appellant
acc.epted the amount of Rs. 10,000 as illegal gratification and not
as a loan. It was also argued for the appellant that he had adduced sufficient evidence to show that the amount was really given to
him as a loan by Ram Lal Kapoor. Having examined the findings
of both the lower courts, we are satisfied that the appellant has not
proved his case by the test of preponderance of probability and the
lower courts rightly reached the conclusion that the amount was
taken by the appellant not as a loan but as illegal gratification. It
has been found by the High Court that Ram Lal Kapoor was not
likely to lend a sum ~f Rs" ·J 0,000 to the appellant without getting a
formal document executed. It is not suggested by the appellant that
he executed a hand-note in favour of Ram Lal Kapoor. There
was a suggestion that he granted a receipt for Rs. 10,000 to Ram
Lal Kapoor but the High Court rejected the case of the appellant
on this point. The High Court has observed that, in the first
instance, the appellant did not make a statement with regard to
the receipt as soon as the amount was recovered from him. It
was only after he was taken to Marden Singh's place that he made a
belated statement that tli.e amount was advanced to him by Ram
Lal Kapoor as a )oan and he had granted a receipt. Mr. Sethi
contended that it was the duty of the District Magistrate and the
Senior Superintendent of Police to have made a search of the
whole bungalow of Ram Lal Kapoor for the alleged receipt and the
failure of these two officers to make the search should be taken to
prove the appellant's case regarding the grant of the alleged receipt.
(I) (1965) 3 S.C.R; 235.
742
SUPAEME
C:OUAT
REPOllTS
[1966] 3 S.CR.
We do not accept the submission of the learned counsel as correct.
The High Court has remarked that the statement of the appellant
was highly belated and the District authorities were justified in not
making a search and ransacking the whole bungalow of Ram Lal
Kapoor for the recovery of the alleged receipt. It was then contended on behalf of the appellant that no panchanama was prepared
by the District Magistrate or the Senior Superintendent of Police
who recovered the money from the appellant. It was also stated
that no independent witness was summoned to be present at the
time of the search. It was pointed out that the District Magistrate is related to Sidh Gopal and it was suggested by Mr. Sethi
that the evidence of the District Magistrate, of the Senior Superintendent of Police and of Sidh Gopal should not have been accepted
by the High Court as true. But all the circumstances have been
taken into account hy the High Court in discussing the testimony
of these witnesses and ordinarily it is not permissible for the appellant to reopen conclusions of fact in this Court, especially when
both the lower Courts have agreed with those conclusions which
relate to the credibility of witnesses who have been believed by the
trial Court which had the advantage of seeing them and hearing
their evidence. It was then contended by the appellant that the
High Court has taken into account the statement of Ram Lal
Kapoor made in a departmental proceeding in coming to a conclusion regarding the guilt of the appellant. We do not think there is
any justification for this argument. The High Court has properly
held that the evidence of Ram Lal Kapoor dated December 16,
1952-Ex. P-1 I-was not admissible and has excluded it from its
consideration in discussing the guilt of the appellant. It is true
that in setting out the history of the case the High Court has referred
to the statement of Ram Lal Kapoor but that does not mean that
the High Court has used the statement of Ram Lal Kapoor for the
purpose of convicting the appellant in the present case. It was also
contended by Mr. Sethi on behalf of the appellant that the statements-Exs. P-3 an P.4-should have been excluded from consideration. It was contended that .these statements were made by the
appellant to the District Magistrate after the recovery of the money
and were hit by the provisions of s. 162 of the Criminal Procedure
Code. On behalf of the respondent Mr. Desai said that these
statements are admissible because they were made to the District
Magistrate and not to a police officer and were not during the
course of investigation because the First Information Report was
lodged on September 13, 1951 at 8 ·30 p.m. long after the statements
were made. We do not consider it necessary to express any concluded opinion as to whether Exs. P-3. and ~-4 are admissible .but
even if they are excluded from cons1derallon there ts sufficient
evidence to support the conviction of the appellant on the charges
under s. 161, Indian Penal Code and s. 5(2) read with s. 5(1)(d) of
the Prevention of Corruption Act.
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JHANGAN v. STATE (Ramaswami, J.)
743
It was also submitted by Mr. Sethi that the evidence of Sidh
Gopal should not have been accepted by the High Court. It was
pointed out that the appellant had received the letter of District
Magistrate-Ex. P-1 on September 5, 1951 and it-was, therefore,
not likely that the appellant should have contacted Ram Lal Kapoor
and Sidh Gopal on the 18th or 19th August, 1951. There is, however, evidence in this case that Bhola Nath who was a Salesman of
M/s Mannulal Sidh Gopal was arrested in August, 1951 on the
report of the appellant and Sidh Gopal apprehended that he would
also come under the clutches of the law and his licences may also
possibly be cancelled. In any event, this is a question regarding
the credibility of Sidh Gopal and it is not open to the appellant to
contest the finding of the lower courts with regard to the credibility
of that witness in this appeal.
Lastly, Mr. Sethi submitted that the appellant was 66 years
old and the offence was committed in 1951 and legal proceedings
have protracted for 15 years. Mr. Sethi, therefore, prayed that the
sentence imposed on the appellant may be reduced. We are
unable to accept this argument. We do not consider that the sentence is excessive in the circumstances of the case.
For the reasons already expressed, we hold that there is no merit
in this appeal which is accordingly dismissed.
Appeal dismissed .