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TMI Blog2003 (11) TMI 649X X X X Extracts X X X X X X X X Extracts X X X X ..... ts or wrongs of a cause, but by the prospects of monetary gains or other selfish considerations. Avarice is a common frailty of mankind, and while Robert Walpole's observation that every man has a price, may be a little generalized, yet it cannot be gainsaid that it is not far from truth. Burke cautioned Among a people generally corrupt, liberty cannot last long . 4. In this appeal, the State of Andhra Pradesh has questioned legality of judgment rendered by a learned Single Judge of Andhra Pradesh High Court directing acquittal of the respondent v. Vasudeva Rao (hereinafter referred to as the 'accused') who faced trial for alleged commission of offences punishable under Section 161 of the Indian Penal Code, 1860 (for short the 'IPC'') and Section 5(2) read with Section 5 (1) (d) of the Act. He was sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs. 5,000/- on each count by the trial Judge i.e. the Principal Special Judge for SPE and ACB Cases, City Civil Court, Hyderabad. 5. Prosecution version which led to the trial of the case is essentially as follows : The accused-respondent was substantively posted as Assistant Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd passed the amount to the accused, and thereafter gave a pre-planned signal to the raiding party. The raiding party then entered and the tainted amount was found to be possessed by the accused. After usual panchanama etc. the case was registered against the accused and he was prosecuted before the learned Special Judge for ACB cases at Hyderabad. Thirteen witnesses were examined to substantiate the accusations. 6. The accused pleaded innocence. His defence was that he had never taken or accepted any amount by way of bribe. The amount of Rs. 1,000/- was advanced by way of hand loan to the complainant-Raghunath who died some times around July, 1990. There was no acceptance of any bribe money. Four witnesses were examined to further the plea of innocence. As noted above, the complainant-Raghunath had died and as a result he could not be examined as a witness at the time of trial before the trial Court. 7. Learned Special Judge on the basis of evidence adduced held that though the complainant-Raghunath could not be examined there was sufficient evidence otherwise to prove that the accused had made demand of the bribe amount as alleged by the prosecution and he in fact received ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Act was clearly available particularly when there was no denial about recovery of the money. In fact the positive stand of the accused was that the money had been received by him, but as an act of receiving back the money advanced. It was further submitted that even if presumption is not available the Court can presume that in ordinary course most probable inference was supportable by the evidence on record. 11. In response, learned counsel for the accused submitted that the High Court's conclusions are on terra firma. When the evidence on record does not establish any demand mere recovery would not suffice. The High Court has also analysed the factual position to conclude that presence of the phenolphthalein powder is not an incriminating circumstance what is important for the purpose of the presumption under Section 4 of the Act is that the amount must have been received as gratification. There is no evidence in that regard. 12. Reliance was placed on V.K. Sharma v. State (Delhi Admn.) 1975CriLJ776 , Sita Ram v. The State of Rajasthan 1975CriLJ1224 and Suraj Mal v. State (Delhi Admn.) 1979CriLJ1087 to contend that mere recovery in the absence of any evidence to sho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. (See M. Narsinga Rao v. State of A.P. 2001CriLJ515 ). 16. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. 1911 (1) KB 988 observed as follows: Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion . 17. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Admn.) 1980CriLJ564 it was observed that there is no requirement to prove passing of money by direct evidence. It may also be proved by circumstantial evidence. In Madhukar Bhaskarrao Joshi v. State of Maharashtra 2001CriLJ175 it was observed thus : The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted as motive or reward for doing or forbearing to do any official act. So the word gratification need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like gratification or any valuable thing . If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word gratification must be treated in the context to mean any payment for giving satisfaction to the public servant who rece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere in any trial or an offence punishable under Section 161 or Section 165 of the IPC or of an offence referred to in Clause (a) or Clause (b) of Sub-section (1) of Section 5 of this Act punishable under Sub-section (2) thereof, 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 the said Section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under Section 165-A of the Indian Penal Code or under Clause (ii) of Sub-section (3) of Section 5 of this Act, 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 contrar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... accepted as a bribe, (ii) that even if the presumption arose it was rebutted when the appellant offered a reasonably probable explanation. This Court, dealing with the presumption under Section 4, observed that such presumption arose when it was shown that the accused had received the stated amount and that the said amount was not legal remuneration. The word 'gratification in Section 4(1) was to be given its literal dictionary meaning of satisfaction or appetite or desire; it could not be construed to mean money paid by way of a bribe. The High Court was justified in raising the presumption against the appellant as it was admitted that he had received the money from the contractor and the amount received was other than legal remuneration. On the facts the explanation given by the accused, in agreement with the opinion of the High Court was held to be wholly unsatisfactory and unreasonable. In Dhanvantrai v. State of Maharashtra1964CriLJ437 it was observed that in order to raise the presumption under Section 4(1) of the Act 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) of the earlier Act and no power whatsoever is given to the Court to impose a sentence less than the minimum, even if there are special reasons for doing so. Parliament fixed the minimum sentence of imprisonment of one year even under the Act of 1947 by making an amendment to it in 1958 for which the legislative language is apparently peremptory i.e. shall not be less than one year . The proviso is in the form of a rare exception by giving power to the Court for reducing the imprisonment period below one year only when there are special reasons and the law required that those special reasons must be recorded in writing by the Court. 30. When corruption was sough t to be eliminated from the polity all possible stringent measures are to be adopted within the bounds of law. One such measure is to provide condign punishment. Parliament measured the parameters for such condign punishment and in that process wanted to fix a minimum sentence of imprisonment for giving deterrent impact on other public servants who are prone to corrupt deals. That was precisely the reason why the sentence was fixed as 7 years and directed that even if the said period of imprisonment need not be given ..... X X X X Extracts X X X X X X X X Extracts X X X X
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