PETITIONER:
SRI C. I. EMDEN
Vs.
RESPONDENT:
THE STATE OF U. P.
DATE OF JUDGMENT:
15/12/1959
BENCH:
GAJENDRAGADKAR, P.B.
BENCH:
GAJENDRAGADKAR, P.B.
SINHA, BHUVNESHWAR P.(CJ)
SUBBARAO, K.
GUPTA, K.C. DAS
SHAH, J.C.
CITATION:
1960 AIR 548 1960 SCR (2) 592
CITATOR INFO :
R 1964 SC 575 (10)
R 1966 SC1762 (3)
R 1968 SC1292 (8)
E 1973 SC 28 (19,20)
R 1975 SC 899 (10)
RF 1979 SC 478 (72)
R 1986 SC2045 (55)
RF 1990 SC1269 (2,3)
ACT:
Prevention of Corruption-Trial on a charge of bribery-
Receipt of gratification other than legal remuneration,
meaning of Statutory Presumption-Whether offends guarantee
of equal protection of laws-Rebuttal of Presumption-
Constitution of India, Art. 14-Prevention of Corruption Act,
1947 (11 of 1947), s. 4.
HEADNOTE:
The appellant, who was working as a Loco Foreman, was found
to have accepted a sum of Rs. 375 from a Railway Contractor.
The appellant’s explanation was that he had borrowed the
amount as he was in need of money for meeting the expenses
of the clothing of his children who were studying in school,
The Special judge accepted the evidence of the contractor
and held that the money had been taken as a bribe, that the
defence story was improbable and untrue, that the
presumption under s. 4 Of the Prevention of Corruption Act
had to be raised and that the presumption had not been
rebutted by the appellant and accordingly convicted him
under s. 161 Indian Penal Code and s. 5 Of the Prevention of
Corruption Act, 1947. On appeal the High Court held that on
the facts of the case the statutory presumption under S. 4
had to be raised, that the explanation offered by the
appellant was improbable and palpably unreasonable and that
the presumption had not been rebutted, and upheld the
conviction. The appellant contended (i) that S. 4 was ultra
vires as it contravened Art. 14 of the Constitution, (ii)
that the presumption under s. 4 could not be raised merely
on proof of acceptance of money but it had further to be
proved that the money was accepted as a bribe, (iii) and
that even if the presumption arose it was rebutted when the
appellant offered a reasonably probable explanation.
Held, that s. 4 of the Prevention of Corruption Act did not
violate Art. 14 Of the Constitution. The classification of
public servants who were brought within the mischief of s. 4
was based on intelligible differentia which had a rational
relation to the object of the Act, viz,, eradicating bribery
and corruption amongst public servants.
Ram Krishna Dalmia v. Shri justice S. R. Tendolkar, [1959]
S.C.R. 279, followed.
A. S. Krishna v. The State of Madras, [1957] S.C.R. 399,
referred to.
The presumption under s. 4 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 ‘
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in s. 4(1) was to be given its literal dictionary meaning of
satisfaction of 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.
State v. Pundlik Bhikaji Ahire, (1959) 61 Bom. L.R. 837 and
Promod Chander Shekhar v. Rex, I.L.R. 1950 All. 382,
approved.
The State v. Abhey singh, A.I.R. 1957 Raj. 138 and State v.
Pandurang Laxman Parab, (1958) 60 Bom. L.R. 811,
disapproved.
Even if it be assumed that the presumption arising under S.
4(1) could be rebutted by the accused giving an explanation
which was a reasonably probable one the High Court was right
in holding that the explanation given by the appellant was
wholly unsatisfactory and unreasonable.
Otto George Gfeller v. The King, A.I.R. 1943 P.C. 211 and
Rex v. Cary Briant, (1943) I K.B. 607, referred to.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 68 of
1958.
Appeal by special leave from the judgment and order dated
July 11, 1957, of the Allahabad High Court (Lucknow Bench),
Lucknow, in Criminal Appeal No. 515 of 1955, arising out of
the judgment and order dated October 31, 1955, of the
Special Judge, Anti-corruption, Lucknow, in Criminal Case
No. 2/3/32/45 of 1953-55.
Frank Anthony, Udai Pratap Singh and P. C. Agarwala, for the
appellant.
G. C. Mathur and O. P. Lal, for the respondent.
1959. December 15. The Judgment of the Court was delivered
by
GAJENDRAGADKAR J.-This appeal by special leave
Gajendragadkar j. has been filed by C. 1. Emden (hereinafter
called the appellant) who has been convicted under s. 161 of
the Indian Penal Code and under s. 5(2) of the Prevention of
Corruption Act 2 of 1947 (hereinafter called the Act). The
case against him was that he had accepted a bribe of Rs. 375
from Sarat Chandra Shukla on January 8, 1953. The appellant
was a Loco Foreman at Alambagh Loco Shed, and Shukla had
secured a contract at the same place for the removal of
cinders 76
594
from ash pits and for loading coal. This contract had been
given to Shukla in June 1952. The prosecution case was that
the appellant demanded from Shukla Rs. 400 per month in
order that Shukla may be allowed to carry out his contract
peacefully without any harassment. Shukla was told by the
appellant that he had been receiving a monthly payment from
Ram Ratan who had held a similar contract before him and
that it would be to his interest to agree to pay the bribe.
Shukla, however, refused to accede to this request and that
led to many hostile acts on the part of the appellant. On
January 3, 1953, the appellant again asked Shukla to pay him
the monthly bribe as already suggested; Shukla then
requested him to reduce the demand on the ground that the
contract given to him was for a much lesser amount than that
which had been given to his predecessor Ram Ratan; the
appellant thereupon agreed to accept Rs. 375. Shukla had no
money at the time and so he asked for time to make the
necessary arrangement. The agreement then was that Shukla
would pay the money to the appellant on January 8, 1953.
Meanwhile Shukla approached the Deputy Superintendent, of
Police, Corruption Branch, and gave him information about
the illegal demand made by the appellant. Shukla’s
statement was then recorded before a magistrate and it was
decided to lay a trap. Accordingly, a party consisting of
Shukla, the magistrate, the Deputy Superintendent of Police
and some other persons went to the Loco Yard. Shukla and
Sada Shiv proceeded inside the Yard while the rest of the
party stood at the gate. Shukla then met the appellant and
informed him that he had brought the money; he was told that
the appellant would go out to the Yard and accept the money.
At about 3 p.m. the appellant went out to the Yard and,
after making a round, came to the place which was
comparatively secluded. He then asked Shukla to pay the
money and Shukla gave him a bundle containing the marked
currency notes of the value of Rs. 375. A signal was then
made by Shukla and the raiding party immediately arrived on
the scene. The magistrate disclosed his identity to the
595
appellant and asked him to produce the amount paid to him by
Shukla. The appellant then took out the currency notes from
his pocket and handed them over to the magistrate. It is on
these facts that charges under s. 161 of the Indian Penal
Code and s. 5(2) of the Act were framed against the
appellant.
The appellant denied the charge. He admitted that he had
received Rs. 375 from Shukla but his case was that at his
request Shukla had advanced the said amount to him by way of
loan for meeting the expenses of the clothing of his
children who were studying in school. The appellant alleged
that since he had been in need of money he had requested
Kishan Chand to arrange for a loan of Rs. 500; but knowing
about his need Shukla offered to advance him the loan, and
it was as such loan that Shukla paid him Rs. 375 and the
appellant accepted the said amount. Both the prosecution
and the defence led evidence to support their respective
versions.
The learned special judge who tried the case believed the
evidence given by Shukla, held that it was sufficiently
corroborated, and found that the defence story was
improbable and untrue. The learned judge also held that on
the evidence led before him the presumption under s. 4 of
the Act had to be raised and that the said presumption had
not been rebutted by the evidence led by the defence.
Accordingly, the learned judge convicted the appellant of
both the offences charged and sentenced him to suffer one
year’s rigorous imprisonment and to pay a fine of Rs. 500
under s. 161 of the Code and two years’ rigorous
imprisonment under s. 5 of the Act. Both the sentences were
ordered to run concurrently.
The appellant challenged the correctness and propriety of
this order by his appeal before the High Court of Allahabad.
The High Court saw no reason to interfere with the order
under appeal because it held that, on the facts of the case,
a statutory presumption under s. 4 had to be raised and that
the said presumption had not been rebutted by the appellant.
In other words the High Court did not consider the
prosecution evidence apart from the presumption since
596
it placed its decision on the presumption and the failure of
the defence to rebut it. In the result the conviction of
the appellant was confirmed, the sentence passed against
him under s. 161 was maintained but the sentence under s.
5(2) of the Act was reduced to one year. The sentences
thus passed were ordered to run concurrently. It is
against this order that the present appeal by special leave
has been preferred by the appellant. This appeal has been
placed before a Constitution Bench because one of the points
which the appellant raises for our decision is that s. 4(1)
of the Act which requires a presumption to be raised against
an accused person is unconstitutional and ultra vires as it
violates the fundamental right guaranteed by Art. 14 of the
Constitution. We would, therefore, first examine the merits
of this point.
The Act was passed in 1947 with the object of effectively
preventing bribery and corruption. Section 4(1) provides
that where in any trial of an offence punishable under s.
161 or s. 165 of the Indian Penal Code 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. Mr. Anthony,
for the appellant, contends that this section offends
against the fundamental requirement of equality before law
or the equal protection of laws. It is difficult to
appreciate this argument. The scope and effect of the
fundamental right guaranteed by Art. 14 has been considered
by this Court on several occasions; as a result of the
decisions of this Court it is well estab. lished that Art.
14 does not forbid reasonable classific-ation for the
purposes of legislation; no doubt it forbids class
legislation; but if it appears that the
597
impugned legislation is based on a reasonable classification
founded on intelligible differentia and that the said
differentia have a rational relation to the object Sought to
be achieved by it, its validity cannot be successfully
challenged under Art. 14 (Vide: Shri Ram Krishna Dalmia v.
Shri Justice S. R. Tendolkar (1). In the present case there
can be no doubt that the basis adopted by the Legislature in
classifying one class of public servants who are brought
within the mischief of s. 4(1) is a perfectly rational
basis. It is based on an intelligible differentia and there
can be no difficulty in distinguishing the class of persons
covered by the impugned section from other classes of
persons who are accused of committing other offences.
Legislature presumably realised that experience in courts
showed how difficult it is to bring home to the accused
persons the charge of bribery; evidence which is and can be
generally adduced in such cases in support of the charge is
apt to be treated as tainted, and so it is not very easy to
establish the charge of bribery beyond a reasonable doubt.
Legislature felt that the evil of corruption amongst public
servants posed a serious problem and bad to be effectively
rooted out in the interest of clean and efficient
administration. That is why the Legislature decided to
enact s. 4(1) with a view to require the raising of the
statutory presumption as soon as the condition precedent
prescribed by it in that behalf is satisfied. The object
which the Legislature thus wanted to achieve is the
eradication of corruption from amongst public servants, and
between the said object and the intelligible differentia on
which the classification is based there is a rational and
direct relation. We have, therefore, no hesitation in
holding that the challenge to the vires of s. 4(1) on the
ground that it violates Art. 14 of the Constitution must
fail. Incidentally, we may refer’ to the decision of this
Court in A. S. Krishna v. The State of Madras (2) in which a
similar challenge to the vires of a statutory presumption
required to be raised under s. 4(2) of the Madras
Prohibition Act, 10 of 1937, has been repelled.
(1) [1959] S.C.R. 279. (2) [1957] S.C. R. 399.
598
That takes us to the question of construing s. 4(1). When
does the statutory presumption fall to be raised, and what
is the content of the said presumption? Mr. Anthony
contends that the statutory presumpion cannot be raised
merely on proof of the fact that the appellant had received
Rs. 375 from Shukla; in order to justify the raising of the
statutory presumption it must also be shown by the
prosecution that the amount was paid and accepted as by way
of bribe. This argument involves the construction of the
words ” any gratification other than, legal remuneration ”
used in s. 4(1). It is also urged by Mr. Anthony that even
if the statutory presumption is raised against the
appellant, in deciding the question as to whether the
contrary is proved within the meaning of s. 4(1) it must be
borne in mind that the onus of proof on the appellant is not
as heavy as it is on the prosecution in a criminal trial.
Let us first consider when the presumption can be raised
under s. 4(1). In dealing with this question it may be
relevant to remember that the presumption is drawn in the
light of the provisions of s. 161 of the Indian Penal Code.
In substance the said section provides inter alia that if a
public servant accepts any gratification whatever other than
legal remuneration as a motive or reward for doing or
forbearing to do any official act, he is guilty of accepting
illegal gratification. Section 4(1) requires the
presumption to be raised whenever it is proved that an
accused person has accepted “ any illegal gratification
(other than legal remuneration) or any valuable thing.” This
clause does not include the receipt of trivial gratification
or thing which is covered by the exception prescribed by
sub-s. (3). The argument is that in prescribing the
condition precedent for raising a presumption the
Legislature has advisedly used the word “ gratification ”
and not money or gift or other consideration. In this
connection reliance has been placed on the corresponding
provision contained in s. 2 of the English Prevention of
Corruption Act, 1916 (6 Geo. 5, c. 64) which uses the words
“any money, gift, or other consideration “. The use of the
599
word gratification emphasises that it is not the receipt of
any money which justifies the raising of the presumption;
something more than the mere receipt of money has to be
proved. It must be proved that the money was received by
way of bribe. This contention no doubt is supported by the
decision of the Rajasthan High Court in The State v. Abhey
Singh (1) as well as the decision of the Bombay High Court
in the State v. Pandurang Laxman Parab (2).
On the other hand Mr. Mathur, for the State, argues that the
word ” gratification ” should be construed in its literal
dictionary meaning and as such it means satisfaction of
appetite or desire; that is to say the presumption can be
raised whenever it is shown that the accused has received
satisfaction either of his desire or appetite. No doubt it
is conceded by now that in most of the cases it-would be the
payment of money which would cause gratification to the
accused; but he contests the suggestion that the word ”
gratification “ must be confined only to the payment of
money coupled with the right that the money should- have
been paid by way of a bribe. This view has been accepted by
the Bombay High Court in a subsequent decision in State v.
Pundlik Bhikaji Ahire (3) and by the Allahabad High Court in
Promod Chander Shekhar v. Rex (4).
Paragraph 3 of s. 161 of the Code provides that the word ”
gratification ” is not restricted to pecuniary gratification
or to gratifications estimable in money. Therefore ”
gratification ” mentioned in s. 4(1) cannot be confined only
to payment of money. What the prosecution has to prove
before asking the court to raise a presumption against an
accused person is that the accused person has received a ”
gratification other than legal remuneration “; if it is
shown, as in the present case it has been shown, that the
accused received the stated amount and that the said amount
was not legal remuneration then the condition prescribed by
the section is satisfied. In the context of the
remuneration legally payable to, and receivable by, a
(1) A.I.R. [1957] Rajasthan 138.
(2) (1958) 60 B. L. R. 8 xi.
(3) (1959) 61 B.L.R. 837.
(4) I.L.R. 1950 All. 382.
600
public servant, there is no difficulty in holding that where
money is shown to have been paid to, and accepted by, such
public servant and that the said money does not constitute
his legal remuneration, the presumption has to be raised as
required by the section. If the word ” gratification “ is
construed to mean money paid by way of a bribe then it would
be futile or superfluous to prescribe for the raising of the
presumption. Technically it may no doubt be suggested that
the object which the statutory presumption serves on this
construction is that the court may then presume that the
money was paid by way of a bribe as a motive or reward as
required by s. 161 of the Code. In our opinion this could
not have been the intention of the Legislature in
prescribing the statutory presumption under s. 4(1). In the
context we see no justification for not giving the word ”
gratification ” its literal dictionary meaning.
There is another consideration which supports this
construction. The presumption has also to be raised when it
is shown that the accused person has received any valuable
thing. This clause has reference to the offence punishable
under s. 165 of the Code; and there. is no doubt that one of
the essential ingredients of the said offence is that the
valuable thing should have been received by the accused
without consideration or for a consideration which he knows
to be inadequate. It cannot be suggested that the relevant
clause in s. 4(1) which deals with the acceptance of any
valuable thing should be interpreted to impose upon the
prosecution an obligation to prove not only that the
valuable thing has been received by the accused but that it
has been received by him without consideration or 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
601
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; but if the
dictionary meaning of the word ” gratification “ fits in
with the scheme of the section and leads to the same result
as the meaning of the word ” valuable thing ” mentioned in
the same clause, we see no justification for adding any
clause to qualify the word ” gratification”; the view for
which the appellant contends in effect amounts to adding a
qualifying clause to describe gratification. We would
accordingly hold that in the present appeal the High Court
was justified in raising the presumption against the
appellant because it is admitted by him that he received Rs.
375 from Shukla and that the amount thus received by him was
other than legal remuneration.
What then is the content of the presumption which is raised
against the appellant ? Mr. Anthony argues that in a
criminal case the onus of proof which the accused is called
upon to discharge can never be as heavy as that of the
prosecution, and that the High Court should have accepted
the explanation given by the appellant because it is a
reasonably probable explanation. He contends that the test
which can be legitimately applied in deciding whether or not
the defence explanation should be accepted cannot be as
rigorous as can be and must be applied in deciding the
merits of the prosecution case. This question has been
considered by courts in India and in England on several
occasions. We may briefly indicate some of the relevant
decisions on this point.
In Otto George Gfeller v. The King(1) the Privy Council was
dealing with the case where the prosecution had established
that the accused were in possession of goods recently stolen
and the point which arose for decision was how the
explanation given by the accused about his possession of the
said goods would or should be considered by the jury. In
that connection Sir George Rankin observed that the
appellant did not
(1) A.I.R. 1943 P.C. 211.
77
602
have to prove his story, but if his story broke down the
jury might convict. In other words, the jury might think
that the explanation given was one which could not
be reasonably true, attributing a reticence or an
incuriosity or a guilelessness to him beyond anything that
could fairly be supposed. The same view was taken in Rex v.
Carr Briant (1) where it has been observed that in any case
where either by statute or at common law some matter is
presumed against an accused, “ unless the contrary is
-proved the jury should be directed that it is for them to
decide whether the contrary is proved, that the burden of
proof required is less than that required at the bands of
the prosecution in proving the case beyond a reasonable
doubt, and that the burden may be discharged by evidence
satisfying the jury of the probability of that which the
accused is called upon to establish ” (p. 612). In other
words, the effect of these observations appears to be to
relax to some extent the rigour of “the elementary
proposition that in civil -cases the preponderance of
probability may constitute sufficient ground for a verdict ”
(p. 611),(Also vide: Regina v. Dunbar (2)). It is on the
strength of these decisions that Mr. Anthony contends that
in deciding whether the contrary has been proved or not
under s. 4(1) the High Court should not have applied the
same test as has to be applied in dealing with the
prosecution case. The High Court should have inquired not
whether the explanation given by the appellant is wholly
satisfactory but whether it is a reasonably possible
explanation or not. On behalf of the State it is urged by
Mr. Mathur that in construing the effect of the clause ”
unless the contrary is proved ” we must necessarily refer to
the definition of the word ” proved ” prescribed by s. 3 of
the Evidence Act. A fact is said to be proved when, after
considering the matter before it, the Court either believes
it to exist or considers its existence so probable that a
prudent man ought under the circumstances of the particular
case to act on the supposition that it exists. He has also
relied on s. 4 which provides that whenever it is directed
that the
(1) (1943) 1 K.B. 607.
(2) (1958) 1 Q.B. 1 at p. 11.
603
court shall presume a fact it shall record such fact as
proved unless and until it is disproved. The argument is
that there is not much room for relaxing the onus of proof
where the accused is called upon to prove the contrary under
s. 4(1). We do not think it necessary to decide this point
in the present appeal. We are prepared to assume in favour
of the appellant that even if the explanation given by him
is a reasonably probable one the presumption raised against
him can be said to be rebutted. But is the explanation.
given by him reasonably probable ? That is the question
which must now be considered.
What is his explanation ? He admits that he received Rs. 375
from Shukla but urges that Shukla gave him this amount as a
loan in order to enable him to meet the expenses of the
clothes for his school-going children. In support of this
the appellant gave evidence himself, and examined other
witnesses, Kishan Chand and Ram Ratan being the principal
ones amongst them. The High Court has examined this
evidence and has disbelieved it. It has found that Kishan
Chand is an interested witness and that the story deposed to
by him is highly improbable. Apart from this conclusion
reached by the High Court on appreciating oral evidence
adduced in support of the defence plea, the High Court has
also examined the probabilities in the case. It has found
that at the material time the appellant was in possession of
a bank balance of Rs. 1,600 and that his salary was about
Rs. 600 per month. Besides his children for whose clothing
he claims to have borrowed money had to go to school in
March and there was no immediate pressure for preparing
their clothes. The appellant sought to overcome this
infirmity in his explanation by suggesting that he wanted to
reserve his bank balance for the purpose of his daughter’s
marriage which he was intending to perform in the near
future. The High Court was not impressed by this story; and
so it thought that the purpose for which the amount was
alleged to have been borrowed could not be a true purpose.
Besides the High Court has also considered whether it would
have been probable that Shukla
604
should have advanced money to the appellant. Having regard
to the relations between the appellant and Shukla it was
held by the High Court that it was extremely unlikely that
Shukla would have offered to advance any loan to the
appellant. It is on a consideration of these facts that the
High Court came to the conclusion that the explanation
given by the accused was improbable and palpably
unreasonable.
It is true that in considering the explanation given by the
appellant the High Court has incidentally referred to the
statement made by him on January 8, 1953, before the
magistrate, and Mr. Anthony has strongly objected to this
part of the judgment. It is urged that the statement made
by the appellant before the magistrate after the
investigation into the offence had commenced is
inadmissible. We are prepared to assume that this criticism
is wellfounded and that the appellant’s statement in
question should not have been taken into account in
considering the probability of his explanation; but, in our
opinion, the judgment of the High Court shows that not much
importance was attached to this statement, and that the
final conclusion of the High Court was substantially based
on its appreciation of the oral evidence led by the defence
and on considerations of probability to which we have
already referred. Therefore, we are satisfied that the High
Court was right in discarding the explanation given by the
appellant as wholly unsatisfactory and unreasonable. That
being so it is really not necessary in the present appeal to
decide the question about the nature of the onus of proof
cast upon the accused by s. 4(1) after the statutory
presumption is raised against him.
In the result the appeal fails, the order of conviction and
sentence passed against the appellant is confirmed and his
bail bond cancelled.
Appeal dismissed.
605