Dismissed

Lrs of Late Shri Shiv Chand v. State of Rajasthan

Rajasthan HC15 Jul 2022CRLA/535/2000

Case brief

AI extract

What is this about?

High Court dismissed the criminal appeal filed by the legal heirs of a deceased Head Constable convicted under the Prevention of Corruption Act. Upholding the trial court's finding, the Court held that the accused failed to rebut the presumption of corruption under Section 20 despite claiming the money was a private loan.

What did the court decide?

The criminal appeal was dismissed and the conviction and sentence upheld. No consequential directions were issued as the convicted accused had passed away.

Lrs of Late Shri Shiv Chand Vs State of Rajasthan — Corruption | Rajasthan HC (2022)

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HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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S.B. Criminal Appeal No. 535/2000

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LR’s of Late Shri Shiv Chand

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----Appellants

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Versus

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The State of Rajasthan

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----Respondents

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For Appellant(s)	: Mr Vishal Sharma
For Respondent(s)	: Mr. Abhishek Purohit,Addl.G.A.

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HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

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Judgment

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Reserved on 08/07/2022 Pronounced on 15/07/2022

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This Criminal Appeal under Section 374 Cr.P.C. has been preferred claiming for the following reliefs:-

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“ It is, therefore, most respectfully prayed that this appeal may kindly be allowed, judgment and order passed by the learned Special Judge, Prevention of Corruption Cases, Jodhpur dated 7.9.2000 may kindly be quashed and set aside and the accusedappellant may kindly be acquitted for the alleged charges leveled against him.”

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This Criminal Appeal has been preferred against the judgment dated 07.09.2000 whereby the learned Special Judge, Prevention of Corruption Act Cases, Jodhpur convicted Shiv Chand, for the offences under Sections 7 & 13 (1) (d)(2) of the Prevention of Corruption Act, 1988 and sentenced him to undergo a sentence of 1 year R.I. along with a fine of Rs.2,000/- in default of payment of which, he was to undergo

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(2 of 21)

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[CRLA-535/2000]

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further 3 months S.I. and 2 years R.I. along with a fine of Rs.4,000/- in default of payment of which he was to undergo further 6 months S.I., respectively.

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At the outset, learned counsel for the appellant submits that convicted person, Shiv Chand passed away, on 21.03.2019, and that his legal heirs have been taken on the record, and are the appellants herein. 4. Brief facts of the case as placed before this Court by learned counsel for the appellants, are that on 02.12.1995, the complainant, P.W. 3, Prem Chaudhary submitted a written report, at Ex. P/8, before the Deputy Superintendent of Police, A.C.B. Nagaur, wherein it was alleged on 04.11.1995, a Criminal Case bearing No. 123/1995 was registered against the complainant and his brother before the Police Station, Khinvsar. And it was averred that the complainant’s brother went to the Police Station, Khinvsar for lodging a cross case against the same, but the then Head Constable, Shiv Chand, refused to register it, subsequent to which Dalu Ram filed a private complaint before the concerned Court. Due to this, the Head Constable got annoyed. It was further averred that Dala Ram was arrested, in connection to the aforementioned criminal case, on 29.11.1995 and that, Shiv Chand allegedly threatened that he would not release the complainant’s brother from custody unless the complainant makes a payment of Rs. 5000/-, at this, the complainant pleaded and allegedly Shiv Chand said that an amount lesser than Rs.1500/- would not be accepted; it was further stated that this transpired on 01.12.1995. And that, the complainant gave him Rs.500/- on the very same day, and

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(3 of 21)

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[CRLA-535/2000]

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told Shiv Chand that he would pay the additional Rs. 1000/- on the subsequent day.

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4.1 It was further averred that, not wishing to pay Rs. 1000/-, the complainant approached the concerned authorities at the A.C.B., Nagaur, and subsequently, trap proceedings were arranged by the then Inspector Om Prakash, P.W. 11 after arranging for two motbirs vi.z P.W. 4 Shaitana Ram and P.W. 10 Ram Niwas. And that, during the trap proceedings, the complainant Prem Chaudhary handed over the Rs. 1,000/- to Shiv Chand, which he took and placed in his shirt pocket. Shiv Chand was then apprehended on the spot by the concerned authorities.

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Learned counsel for the appellants submitted that Shiv Chand, on being apprehended on the spot by the concerned authorities, had provided an extempore explanation that the money that he had received an amount of Rs. 1000/- from the complainant towards repayment of a loan, which the complainant had borrowed from one Jagga Ram, in the presence of one Ram Singh Rajput and Baga Ram Jat.

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Learned counsel for the appellants further submitted that the presumption made against the accused under the Prevention of Corruption Act, 1988 is rebuttable, and that despite Shiv Chand’s clear and justifiable explanation for taking the money handed over to him by the complainant, he was apprehended and taken into custody.

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Learned counsel for the appellants also submitted that the complainant, P.W. 3 Prem Chaudhary, in his cross – examination, admitted that the accused did not demand any

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(4 of 21) [CRLA-535/2000]

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bribe from him, but that the money he gave to Shiv Chand was made towards the repayment of the loan, which he borrowed from Jagga Ram. Furthermore, in addition to the complainant, the motbir witness, P.W. 4 Shaitana Ram turned hostile and did not support the case of the prosecution.

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Learned counsel for the appellant further submitted that P.W. 11, Inspector Om Prakash was not the competent authority to conduct the investigation against Shiv Chand, since he was an officer below the rank of Deputy Superintendent of Police, and therefore, the entire trial against Shiv Chand was thereby vitiated.

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Learned counsel for the appellant also submitted that the investigating officer did not investigate, as to whether any loan amount was advanced to the complainant by Jagga Ram.

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Learned counsel for the appellants further submitted that the prosecution has therefore failed to sufficiently prove the existence of demand for any illegal gratification by Shiv Chand, and that the learned Court below has convicted Shiv Chand on surmises and conjectures, and thus, the impugned judgment, deserves to quashed and set aside.

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In support of his submissions, learned counsel for the petitioner relied upon the following judgments:

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(a) Narayan Lal Vs. State of Rajasthan, 2000(1) RCC 719;

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(b) C.M. Girish Babu Vs. CBI, Cochin, AIR 2009 SC 2022 and;

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(c) B. Jayaraj Vs. State of A.P., 2014 CRLJ 2433 SC.

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(5 of 21) [CRLA-535/2000]

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On the other hand, learned Public Prosecutor opposed the submissions made on behalf of the appellants herein, and submitted that the learned Court below has rightly convicted Shiv Chand after taking into due consideration the overall facts and circumstances of the present case, and the evidences placed on record before it.

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Learned Public Prosecutor further submitted that the motive for the demand of illegal gratification is said to be established, since the accused herein sought the bribe from the complainant with the threat that he would not release the complainant’s brother, Dala Ram, from custody unless the complainant complied with the request for the bribe made by the accused.

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Learned Public Prosecutor also submitted that during the trap proceedings, the complainant was given 10 notes of denomination Rs. 100/-, totaling an amount of Rs. 1,000/- and the same was smeared with phenolphthalein powder, and the complainant was instructed to signal at the concerned authorities involved in the trap, once the said amount was accepted by Shiv Chand by making a gesture with his right hand on his head. And that, the said notes were also marked by the investigating officer with his initials/signature. And that when the recovery was made from Shiv Chand, and upon testing the same, they were revealed to be the same as supplied by the concerned authorities. Furthermore, the hands of the accused – Shiv Chand were found to a pinkish hue when tested with the sodium carbonate solution, revealing that he had in fact come into contact with the tainted currency.

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(6 of 21)

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[CRLA-535/2000]

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Learned Public Prosecutor also submitted that from a bare perusal of the record, and looking to the testimony of multiple witnesses, the factum of demand of illegal gratification and recovery of the same from the accused, as detailed hereinabove have been proven against him.

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At the outset, this Court thinks it necessary and fit to keep into consideration the observations made by the Hon’ble Supreme Court, with regard to the gravity and seriousness of offences under the Prevention of Corruption Act, 1988 and the catastrophic effect that such offences, if left unchecked, have on a democratic society, in State of M.P. & Ors. Vs. Ram Singh

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(2000) 5 SCC 88 .

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Relevant portion of the said judgment is reproduced as under:-

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“Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to malignancies the polity of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic political system in an otherwise healthy, wealthy, effective and vibrating society.”

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Before delving into the case at hand, the relevant Sections of the Prevention of Corruption Act, 1988 (as it stood then) applicable in the present case, are reproduced below for the sake of brevity:-

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(7 of 21)

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[CRLA-535/2000]

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“ 7. Public servant taking gratification other than

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legal remuneration in respect of an official Act

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Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than 1[three years] but which may extend to 2[seven years] and shall also be liable to fine.

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Explanation.—

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(a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will when serve them, be may be guilty of cheating,

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but he is not guilty of the offence defined in this section.

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(b) "Gratification." The word “gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

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(c) "Legal remuneration." The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

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(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

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(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that

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(8 of 21)

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[CRLA-535/2000]

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person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section”

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13. Criminal, misconduct by a public servant

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(1) A public servant is said to commit the offence of criminal misconduct, —

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(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person for himself or for any other person any gratification other than legal remuneration as active or reward such as is mentioned in section 7; or

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(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

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(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

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(d) if he,—

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(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

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(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

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(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public, interest; or

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(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot

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(9 of 21)

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[CRLA-535/2000]

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satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income. Explanation.—For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

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(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 1[four years] but which may extend to 2[ten years] and shall also be liable to fine."

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20. Presumption where public servant accepts gratification other than legal remuneration

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(1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) or subsection (1) of section 13 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 section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

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(2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

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(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption

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(10 of 21)

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[CRLA-535/2000]

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referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."

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This Court observes that, for the offences under Sections 7 and 13 sub-section (1) (d) read with Section 13 sub-section (2) of the Prevention of Corruption Act, 1988 to be made out against the accused, it is necessary that; the twin ingredients of a demand of illegal gratification / bribe of remuneration; or any valuable thing, either without consideration or a consideration which is known to be inadequate by the accused; or for a pecuniary advantage, for himself or another, made by the accused or by another on his behalf, coupled with a recovery of the said illegal gratification from the accused, or from someone who has accepted the same on his behalf; or if he has dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant, must be proven by the prosecution as per the facts and circumstances of each case.

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18.1 It is a settled position of law that any allegation under the aforementioned sections against an accused, if sans a demand for any kind of illegal gratification, (hereinafter referred to as ‘Demand’) or a recovery of the same (hereinafter referred to as ‘Recovery’), as discussed above, would result in a failure of the prosecution to prove its case, beyond all reasonable doubt. 19. However, in case a Demand and a Recovery have been proven before the competent Court by placing the evidence on record, which may include, but not be limited to; audio and/or video recording of trap proceedings, transcript of telephonic conversation between complainant and accused, chemical testing

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(11 of 21)

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[CRLA-535/2000]

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of the currency notes and the clothes / person of the accused, or his conduit, by phenolphthalein powder or anthracene powder, testimonies of complainant and/or investigating officer/shadow witness and/or trap/panch witness and/or other witnesses, and whether any of the witnesses have turned hostile, the accused may rebut the same, to the satisfaction of the competent Court and averting to the facts of the case, by providing a justification / explanation to such demand.

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This Court further observes, as is clear from the legislative intention crystallised in the provision of law under Section 20 of the Act of 1988, that in case a demand for illegal gratification has been proved, then ‘it shall be presumed, unless the contrary is proved’ i.e. it is rebuttable at the instance of the accused if he is able to justify / explain the purpose for the said demand so made, and substantiate the same with cogent and clear evidence, to the satisfaction of the concerned Court.

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The same has been reinforced, time and again, by the Hon’ble Apex Court, as is evident from the judgment rendered in B. Noha Vs. State of Kerala and Ors. (2006) 12 SCC 277 , wherein, while referencing the ratio decidendi laid down in the earlier decision of State of A.P. v. Kommaraju Gopala Krishna Murthy (2000) 9 SCC 752 the Hon’ble Apex Court observed the following:-

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“… that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification.”

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21.1 Therefore, when it appears that an amount, which may appear to be a Demand made by an accused, has been passed to

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(12 of 21)

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[CRLA-535/2000]

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the accused, then a presumption under Section 20 of the Act of 1988 is made against the accused, and the burden of proof of rebutting the same then lies on the shoulders of the accused. 21.2 Furthermore, in Guruviah & Ors. Vs. The State (2019) 8

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SCC 396 wherein the Hon’ble Apex Court referenced the ratio decidendi laid down earlier in T. Shankar Prasad v. State of A.P. (2004) 3 SCC 753 and also took into consideration, that although a justification / explanation was given by the accused, it was not offered immediately after the recovery of money but at a belated stage, which called into question the authenticity of the same.

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Relevant portion of T. Shankar (supra) is reproduced

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below:-

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“ The involvement of both of the them a well-planned and cleverly managed device to systematically collect money stood sufficiently established on the evidence let in by the prosecution. Further, A-2 did not offer his explanation immediately after the recovery of money. A similar plea of receiving money as advance tax was rejected and affirmed by this Court in A. Abdul Kaffar v. State of Kerala.”

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This Court is also conscious of the following judgments rendered by the Hon’ble Apex Court:-

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22.1 State of Gujarat Vs. Bhalchandra Laxmishankar Dave

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(2021) 2 SCC 735 wherein the Hon’ble Apex Court, while dealing with a case wherein the High Court had set aside the order of conviction passed by the Court below and acquitted the accused therein, made the following observations:-

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“We have gone through the detailed judgment and order of conviction passed by the Learned Trial Court and also the

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(13 of 21)

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[CRLA-535/2000]

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evidence on record laid down by the prosecution as well as the defence. We have perused the impugned judgment and order of acquittal passed by the High Court to ascertain whether the High Court has conformed to the principles while exercising in the criminal appeal against the judgment and order of conviction. We find that the High Court has not strictly proceeded in the manner in which High Court ought to have while dealing with the appeal against the order of conviction. On perusal of the impugned judgment and order of acquittal passed by the High Court, we find that, as such, there is no re-appreciation of the entire evidence on record in detail while acquitting the Respondent - Accused. The High Court has only made general observations on the depositions of the witnesses examined.

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The High Court ought to have appreciated that it was dealing with the first appeal against the order of conviction passed by the Learned trial Court. Being First Appellate Court, the High Court was required to re-appreciate the entire evidence on record and also the reasoning given by the Learned trial Court while convicting the Accused. Being the First Appellate Court the High Court ought to have reappreciated the entire evidence on record without any limitation, which might be there while dealing with an appeal against the order of acquittal passed by the Learned Trial Court.

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Therefore, we are of the firm opinion that the impugned judgment and order passed by the High Court acquitting the Respondent - Accused without adverting to the reasons given by the Learned trial Court while convicting the Accused and without reappreciating the entire evidence on record in detail cannot be sustained and the same deserves to be quashed and set aside.”

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22.2 State of U.P. Vs. Ram Asrey 1990 Supp (1) SCC 12

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wherein the Hon’ble Apex Court observed as under:-

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“ The appellate Court has given the following reasons for allowing the appeal of the respondent, they being:

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(14 of 21)

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[CRLA-535/2000]

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1) There is no corroboration of the testimony of the complainant, Ambar Prasad regarding the demand of bribe by the respondent on 27.10.79.

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2) The evidence adduced by the prosecution that even on 5.11.79, the respondent demanded the bribe from Ambar Prasad in the presence of other persons without taking any precaution is not convincing.

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3) There is no acceptable reason as to why Ambar Prasad who had promised to give the bribe money on 8.11.79 came even on

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5.11.79 with the vigilance party.

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4) Though Ambar Prasad agreed to pay Rs. 15/-, he paid only Rs. 10/-.

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5) The application said to have been presented by Ambar Prasad is not found.

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6) No evidence whatsoever was produced to show that Ambar Prasad required a backward class certificate for getting the scholarship in the month of November.

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The sum and substance of the above reasonings go to show that there is no acceptable and clinging evidence proving that there was a demand of bribe and that the respondent accepted the amount in question as a motive or reward for doing an official act or showing a favour to Ambar Prasad in expertise of his official function.

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On going through the impugned judgment of the High Court, we are of the view that the facts and circumstances of this case do not warrant interference.

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In the result, the appeal is dismissed”

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22.3 Ayyasami Vs. State of Tamil Nadu (1992) 1 SCC 304

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wherein the Hon’ble Apex Court made the following observations:-

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“The High Court found that the witnesses who were associated in the conduct of the raid for recovery of tainted money from the appellant could not be termed as independent who could be associated with such raids. The High Court further expressed doubt about veracity of the witness who claimed that money was actually handed over in his presence. The High Court, however, drew an adverse inference against the appellant from the circumstance that the, bill which was delayed for unreasonable period had suddenly been passed by the appellant On an overall assessment the High Court entertained some suspicion about the

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(15 of 21)

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[CRLA-535/2000]

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credibility of the prosecution witnesses but at the same time did not find the suspicion to be strong enough to raise doubt about the guilt of the appellant. We agree with the learned Counsel for the appellant that in the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellant being unbelievable, the conviction of the appellant cannot be sustained. The guilt of the appellant has not been proved beyond reasonable doubt and as such the benefit must go to him. ”

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22.4 Meena Vs. The State of Maharashtra (2000) 5 SCC 21

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wherein the Hon’ble Apex Court made the following observations:-

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“ Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also.

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The other person, who was present at the place of occurrence though cited initially as witness, was not examined by the prosecution but later was got examined as DW-1 and evidence of this person completely belies the prosecution story. The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW-5, categorically admitted that even as the Inspector of Police, PW-6, arrived, the appellant gave the same version that PW-1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution.

¶133

It is an obligation of judicial conscience to correct errors, where the same are manifest. The judgments of the courts below suffer from serious infirmities and manifest errors on account of unwarranted inferences liberally drawn by the courts below against the appellant, overlooking the fundamental principle of presumption of innocence of an accused till the charge leveled and his guilt is established beyond all reasonable doubt. The courts below have failed to consider the adverse impact on the prosecution case from the evidence of PW-2 and the withholding

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(16 of 21)

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[CRLA-535/2000]

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of the lady constable and Jagdish Bokade, two material witnesses.

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The materials on record in this case are not sufficient to bring home the guilt of the appellant. Consequently, the appeal is allowed. The conviction and sentence of the appellant is set aside and the fine, if any, paid shall be refunded to the appellant. ”

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22.5 Seema Silk and Sarees and Ors. Vs. Directorate of Enforcement and Ors. (2008) 5 SCC 580 wherein the Hon’ble Apex Court, with regard to presumption made against the accused, made the following observations:-

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“The presumption raised against the trader is a rebuttable one. Reverse burden as also statutory presumptions can be raised in seevral statutes as, for example, the Negotiable Instrumetns Act, Prevention of Corruption Act, TADA, etc. Presumption is raised only when certain foundational facts are established by the prosecution. The accused in such an event would be entitled to show that he has not violated the provisions of the Act. ”

¶140

22.6 Hari Rudra Bhavan Vs. The State of Rajasthan R.L.W. 1982 Raj 676 decided on 12.03.1982 wherein a Coordinate Bench of this Court, after analyzing the testimonies of witnesses, observed as under:-

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“ The prosecution could not succeed in proving beyond reasonable doubt that the appellant demanded or accepted illegal gratification from Mangat Singh for payment of interest on his Jagir bonds. In the absence of any trust-worthy evidence from the side of the prosecution relating to demand and acceptance of bribe I am unable to up-hold the convictions and sentences of the appellant under Sec. 161, I.P.C. and Sec. 5(2) read with Sec. 5 (1) (d) of the Prevention of Corruption Act. ”

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(17 of 21)

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[CRLA-535/2000]

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22.7 Ulfat Rai Arya Vs. State of Rajasthan 2007 CriLJ 1846 decided by a Coordinate Bench of this Court on 07.12.2006, wherein the following observations were made:-

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“A plain reading of the above provision makes it clear that when the accused accepted the gratification, the presumption immediately comes into play that he accepted it as a motive or reward such as is mentioned in Section 161, IPC. Hon'ble the Apex Court in the case of T. Shankar Prasad's case, (2004 Cri LJ 884) (supra) held that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or for bearing to do any official act etc. if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 4 of the Act is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. In M. Narsinga Rao's case (supra) it was held that where the receipt of gratification was proved, the Court was under a legal obligation to presume that such gratification was accepted as a reward for doing the public duty.

¶146

In Gulam Mahmood A. Malek's case 1980CriLJ1096 (supra) it was held that while appreciating the evidence the background of the case should not be lost sight of it was also laid down that past conduct of the complainant should not be ignored. In Suraj Mai's case (supra) it has been observed that in a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In Kesaram's case (supra) it has been held that when accused at the earliest disclosed the fact of receiving Rs. 100/- against the money due in the brother of the complainant and the defence version has been supported by the prosecution witnesses, the appellant has succeeded in probising the defence. In Duraisami's case (supra), it was held that when the explanation given by the accused is found to be true and genuine then case set up by the defence has to be accepted. ”

¶147

At the cost of repetition, this Court deems it proper to summarize the observations made by the Hon’ble Apex Court in the aforementioned precedent laws in the following manner:-

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(18 of 21) [CRLA-535/2000]

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23.1 For offences under the Sections 7 and 13 (1) (d) read with Section 13 (2) of the Act of 1988, it is fundamental that a Demand and Recovery of the same is proven against the accused.

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23.2 The presumption under Section 20 of the Act of 1988, operates against the accused, and places the burden of proof upon the accused, unless he rebuts the same to the satisfaction of the competent Court, and whether the rebuttal was made at the appropriate stage.

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23.3 Owing to the fact that in old cases, wherein the technology of audio / voice recording, transcripts of conversations etc. proving the existence of Demand rests solely in the realm of witness testimony and other material evidences placed on record before the concerned Court.

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23.4 And that, an appellate Court may interfere with an order of conviction, under the Act of 1988, only after a re-appreciation of of the entire evidence on record and thereafter, if the appellate Court finds the reasons as laid out by the Court below, in convicting the accused, under the Act of 1988, to be bad or unsustainable in the eye of law, then it may interfere and accordingly, reverse the conviction into an acquittal.

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Now adverting to the facts and circumstances of the present case, this Court makes the following observations:-

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24.1 The learned Court below framed the issues and proceeded to answer them in the following manner; whether the accused Shiv Chand, the Head Constable at Police Station Khinvsar, mis-used his official position and authority, demanded a bribe from the complainant, Prem Choudhary, on 02.12.1995, at 11:35 a.m. and whether he is guilty of the offence under Section 7 of the

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(19 of 21) [CRLA-535/2000]

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Prevention of Corruption Act, 1988, and whether the accused, Shiv Chand on the promise of releasing Dalla Ram, brother of the complainant, on bail and not beating him up, collected a bribe of Rs. 1,000/- from the complainant and thereby whether he is guilty of the offences under Section 13 (1) (d) and (2) of the Prevention of Corruption Act, 1988.

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24.2 The learned Court below in answering the aforementioned issues recorded the finding that the accused Shiv Chand, provided an explanation on the spot when he was apprehended stating that, the same was towards the repayment of a loan advanced to the complainant, by one Jagga Ram on whose behalf, the complainant apparently received the said amount.

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24.3 Furthermore, it was the testimony of Jagaram, D.W. 3 deposed that he went to Nagaur for a personal matter, on 25.10.1995, and there he met with the complainant and his brother, Dala Ram, and that the complainant said to him that he needed Rs. 2000/- and that at the time he had only Rs. 1000/- on his person, which he lent to the complainant.

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24.4 This Court, while keeping in mind the observations made by

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the Hon’ble Apex Court in Guruviah (supra) and T. Shankar Prasad (supra) , notes that even though the justification given by the accused Shiv Chand, was given on the spot when he was apprehended, that the amount of Rs. 1000/- so recovered by him, was received by him towards the repayment of the loan advanced on by one Jaga Ram to the complainant and his brother, the same does not hold water.

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24.4.1 This Court observes that the testimony of D.W. 3 Jagaram has rightly disbelieved by the learned Court below. As is

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(20 of 21) [CRLA-535/2000]

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evident from the record, Jagaram himself stated that the complainant and his brother had requested money for purchasing household items, but then subsequently stated that he did not inquire as to why the complainant and his brother sought a loan of Rs. 1000/- from him. Furthermore, the learned Court below has rightly observed that Jagaram did not had any kind of relationship with complainant nor his brother, and that it is highly improbable that someone would advance a loan to an unknown person/s.

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24.5 Furthermore, upon being apprehended on the spot, it is the testimony of both P.W. 9 Constable Rajesh Kumar and P.W. 11, Inspector Om Prakash Joshi that the accused accepted that he had in fact made a mistake.

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24.6 This Court finds that the learned Court below has rightly disbelieved the testimony of D.W.3 Jagaram, and found the explanation that the amount recovered from the accused was repayment towards a loan taken by the complainant and his brother from Jagaram.

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24.7 This Court therefore, finds that the learned court below has rightly passed the impugned judgment of conviction against the accused on the basis of the evidence, in the form of testimony of the official witnesses, namely, the Constables, coupled with the admission made by the accused and the testimony given by DW-3 Jagga Ram, which was fraught with inconsistencies and discrepancies, and therefore, the version of the defence was not believable. And that, the accused failed to successfully rebut the statutory presumption as enshrined under Section 20 of the Act of 1988.

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(21 of 21)

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[CRLA-535/2000]

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The judgments cited by learned counsel for the appellants do not render any assistance to the case of the accused.

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This Court, in light of the above made observations and the aforementioned precedent laws laid down by the Hon’ble Apex Court, finds that the judgment of conviction, dated 07.09.2000, passed by the learned Court below deserves to be upheld and the same is accordingly upheld.

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Accordingly, the present appeal is dismissed. Since the accused Shiv Chand (represented in this case by his LRs) had already passed away, there is no need to issue any consequential direction as to sending him back to jail. All pending applications, if

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any, are disposed of.

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(DR.PUSHPENDRA SINGH BHATI), J.

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skant/-

Lrs of Late Shri Shiv Chand v. State of Rajasthan

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Lrs of Late Shri Shiv Chand v. State of Rajasthan

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