9911796707
TMI Blog1962 (9) TMI 50X X X X Extracts X X X X X X X X Extracts X X X X ..... year 1954 the appellant was appointed Resident Engineer for Light Houses and posted to Bombay. He was due to retire in January, 1955 but he was given extensions from time to time. The complainant, M. M. Patel (who will hereafter be referred to as the complainant) is a building contractor. It was proposed to reconstruct a light house at Tolkeshwar Point which is situated on the West Coast, somewhere between Ratnagiri and Karwar The complainant submitted a tender for the construction on March 21, 1956. That tender was accepted on June 30, 1956 and a work order was issued to him. The general conditions governing the contract. are contained in the set of papers inviting tenders. The complainant commenced the work in November, 1956. It would appear that the overseer supervising the work was not satisfied with the manner in which the contractor was carrying on the work. As a result, in December, 1956, the appellant had to bring the fact to the complainant's notice and warn him to carry out the work according to the specification contained in the notice inviting tenders. It may be mentioned that just near the place where the light house was being constructed, there is a temple of To ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . On April 7, 1957, the complainant and some of his workmen assaulted Bhatia about which the latter made a complaint in writing to the appellant. This complaint was eventually forwarded to the higher authorities who reprimanded the complainant and required him to give an undertaking to behave properly. On April 9, 1957, the appellant wrote to Bhatia asking him to give instructions in writing to the complainant, instead of giving mere oral instructions. He likewise wrote to the complainant asking him to carry on the work according to the instructions of Bhatia and also under- take not to use force. On May 13, 1957, the appellant reported to the Director General of light Houses that the complainant's work was bad and not according to specifications. He, therefore, suggested that the complainant should be required to pull down the constructions which were not according to the specifi- cations. The complainant protested against this. On May 28, 1957, he presented a second running bill for Rs. 38,000 odd and though apparently a cheque was prepared it was not handed over to the complainant as the work was defective. On August 1, 1957, the Director General of Light Houses instructed t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ing the temple with the lighthouse. He, therefore, requested the appellant to consider these requirements sympathetically. According to the appellant, it is in pursuance of this request that he suggested to the complainant to do some work free for the temple. It may be mentioned that the complainant had actually taken up his residence in the dharmshala attached to the temple and had used the main temple hall for sometime for storing his cement bags. Thus in addition to using the water from the temple. well he had made ample use of the temple properties. According to Mr. Chari it was apparently for this reason that the appellant made the aforementioned suggestion to the complainant. It is an admitted4 fact that though the cheque for payment of Rs. 22,000 odd for the ninth running bill was prepared on March 23, 1959, it was not handed over to the complainant on that date. It is the complainant's case that the appellant was demanding 10% of the bills by way of illegal gratification, that upon the complainant refusing to pay that amount the appellant brought down the demand to 3 or 4% and ultimately to Rs. 1,000/-. The prosecution case is that it is for compelling the complaint to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the cheque to the complainant the letter said that he was really not in a position to do the repair work etc., to the temple and dharmshala because he did not have enough men even for doing the work which was undertaken by him and that he was therefore handing over to the appellant Rs. 1,000 for being transmitted to the temple authorities. His grievance is that by not subjecting the cheque to the usual test he has been deprived of the opportunity of establishing his defence that the cheque was handed over by him to the complainant even before he received the money. It does not appear, however, that any grievance was made of this fact before the special Judge who tried the case. Thus the receipt of Rs. 1,000/- was admitted by the appellant. This was admittedly not the appellant's 'legal remuneration'. The first question, therefore, is whether a presumption under Sub-s. 1 of s. 4 of the prevention of Corruption Act arises in this case. That provision runs thus: "Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code it is proved that an accused person has accepted or obtained, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r 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;. That being the legal position it must be held the requirements of sub-s. (1) of s. 4 have been fulfilled in the present case and the presumption thereunder must be raised. The next contention of Mr. Chari is that the accused person is entitled to rebut the presumption arising against him by virtue of a statutory provision by offering an explanation which is reasonable and probable. According to him the complainant evidently nursed a grievance against the appellant because the latter used to fin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plainant voluntarily paid to him a sum of Rs. 1,000/- on April 6, 1959, for being passed on to the temple authorities should be accepted as reasonable and probable. His grievance is that the High Court has misstated and misapplied the law when it observed in its judgment: "The usual standard of an explanation given by the accused which may reasonably be true, though the Court does not accept it to be true, cannot be enough to discharge the burden. It is not necessary to consider what evidence would satisfy the words 'until the contrary is proved' in this case. The least that can be said is that the Court must be satisfied from the material placed before it on behalf of the. accused either from the evidence for the prosecution or for the accused that it creates a reasonable doubt about the prosecution case itself. It is not necessary to go beyond this in this case since we are satisfied that the circumstances and the evidence placed before us do not create a reasonable doubt about the prosecution case." Mr. Chari contends that upon the view taken by the High Court it would mean that an accused person is required to discharge more or less the same burden for proving his innoc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be as light as it is where a presumption is raised under s. 114 of the Evidence Act and cannot be held to be discharged merely by reason of the fact that the explanation offered by the accused is reasonable and probable. It must further be shown that the explanation is a true one. The words 'unless the contrary is proved' which occur in this provision make it clear that the presumption has to be rebutted by 'Proof' and not by a bare explanation which is merely plausible. A fact is said to be proved when its existence is directly established or when upon the material before it the Court finds its existence to be so probable that 'a reasonable man would act on the supposition that it exists. Unless, therefore, the explanation is supported by proof, the presumption created by the provision cannot be said to be rebutted. How the burden which has shifted to the accused under s. 4(1) of the prevention of Corruption Act is to be discharged has been considered by this Court in State of Madras v. A. Vaidyanatha Iyer ([1958] S. C. R. 580) where it has been observed : "Therefore, where it is proved that a gratification has been accepted, then the presumption shall at onc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a presumption of law. The bare word of the appellant is not enough and it was necessary for him to show that upon the established practice his explanation was so probable that a prudent man ought, in the circumstances, to have accepted it. According to Mr. Chari here, there is some material in addition to the explanation offered by the appellant which will go to rebut the Presumption raised under s. 4 (1) of the Act. He points out that there is the letter from D. S. Apte addressed to the appellant, defence Ex. No. 32 collectively, which the appellant claims to have received on or after March 13, 1959, during his visit to Tolkeshwar. He says that this letter was produced by him immediately when the police official came to his cabin on April 6, 1959 and recovered from him a sum of Rs. 1,000/which the complainant had paid to him. He points out that this letter was in the same pocket in which the money was kept and says that it is con- clusive to disprove the money being received by way of bribe. He also relise upon the evidence of D.S. Apte. That evidence, however, does not go further than the letter. No evidence was, however brought to our notice to show that the appellant had at an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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