2009 (2) TMI 888 - SC - Indian Laws

Demanding and accepting gratification by Inspector of Central Excise - convicted the appellant u/s 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act - Test of preponderance of probability - Whether the recovery of the tainted money itself is sufficient to convict the appellant u/s 7? - Accused No. 1 and appellant both was working as Inspector of Central Excise - HELD THAT - The appellant at the earliest point of time explained that it was not the bribe amount received by him but the same was given to him by PW-10 saying that it was towards repayment of loan taken by his Manager-PW2 from the Accused No. 1. This is evident from the suggestion put to PW-2 even before PW-10 was examined. Similar suggestion was put to the investigating officer that he had not recorded the version given by the appellant correctly in the post trap mahazar-Exhibit-P9 and no proper opportunity was given to explain the sequence of events. A three-Judge Bench in M. Narsinga Rao v. State of A.P. 2000 (12) TMI 892 - SUPREME COURT while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification It is well settled that the presumption to be drawn u/s 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification. It is against this background of principles we have examined the contention of the appellant that the charges u/s 7 have not been proved against him. It was argued by Shri U.U. Lalit Senior counsel that the circumstances found by the HC in their totality do not establish that the appellant accepted the amount of 1500/- as gratification. Having examined the findings of both the Courts we are satisfied that the appellant has proved his case by the test of preponderance of probability and we accordingly reach the conclusion that the amount was not taken by the appellant as gratification. He was made to believe that amount paid to him was towards the repayment of loan taken by PW2 from Accused No. 1. The prosecution failed in establishing the guilt of the accused beyond reasonable doubt that the appellant received any gratification. Therefore conviction of the appellant and the sentence imposed upon him is set aside. The appeal is allowed.

Summary

Issues Involved:
1. Validity of the appellant's conviction under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.
2. Examination of evidence regarding the demand and acceptance of gratification.
3. Applicability of the presumption under Section 20 of the Prevention of Corruption Act, 1988.
4. Burden of proof on the accused to rebut the presumption of guilt.

Detailed Analysis:

1. Validity of the appellant's conviction under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988:
The appellant was initially convicted by the Special Judge for offences under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The High Court, upon appeal, acquitted the appellant of charges under Section 13(1)(d) read with Section 13(2) but upheld the conviction under Section 7, reducing the sentence to one year. The Supreme Court examined whether the evidence supported the conviction under Section 7.

2. Examination of evidence regarding the demand and acceptance of gratification:
The prosecution's case rested on the testimony of PW-10 and PW-2. PW-10, who was central to the prosecution's case, did not support the prosecution's story and was declared hostile. He stated that the appellant never demanded any bribe and that the money given to the appellant was a loan repayment from PW-2 to Accused No. 1. PW-2's evidence was considered hearsay and inadmissible as he had no personal knowledge of the demand. The official witness, PW-11, only heard the appellant asking "is it ready?" without any mention of a bribe. Exhibit P-9, the post-trap mahazar, also did not record any demand for gratification by the appellant.

3. Applicability of the presumption under Section 20 of the Prevention of Corruption Act, 1988:
Section 20 of the Act presumes that any gratification accepted by a public servant is a bribe unless proven otherwise. The Supreme Court noted that this presumption is rebuttable. The appellant argued that the money was received as a loan repayment, not as a bribe. The Court emphasized that the presumption under Section 20 is not inviolable and can be rebutted through cross-examination or reliable evidence.

4. Burden of proof on the accused to rebut the presumption of guilt:
The Supreme Court reiterated that the burden on the accused to rebut the presumption under Section 20 is not as stringent as the burden on the prosecution to prove guilt beyond a reasonable doubt. The appellant needed to prove his case by a preponderance of probability. The Court found that the appellant successfully demonstrated that the money was received as a loan repayment, not as a bribe, thus rebutting the presumption of guilt.

Conclusion:
The Supreme Court concluded that the prosecution failed to prove beyond reasonable doubt that the appellant received any gratification. The evidence suggested that the money was given to the appellant under the belief that it was a loan repayment. Consequently, the appellant's conviction under Section 7 of the Prevention of Corruption Act, 1988, was set aside, and the appeal was allowed. The bail bonds executed by the appellant were discharged.