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TMI Blog1966 (3) TMI 98X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Allahabad High Court, Lucknow Bench. The appellant was employed as Assistant Director Enforce- ment, 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 ₹ 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 ₹ 10,000 as first instalment of the bribe from Sidh Gopal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ined, 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 said S. 161, or as the case may be, without consideration or for a consideration which he knows to be inadequate. It was held by this Court in Dhanvantrai Balwantrai Desai v. State of Maharashtra(A.I.R. 1964 S.C. 575) that in order to raise the presumption under this 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 something more than the mere receipt of the money had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accused, he is not required to discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, 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 to 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 Woolmington v. Director of Public Prosecutions([1935]A.C. 462) that no matter what the charge or where the trial, the principle that the prosecution must prove th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... isfied 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(1)(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 accepted the amount of ₹ 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... imony 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-11-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-sho ..... X X X X Extracts X X X X X X X X Extracts X X X X
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