Lrs. Chhagan Lal vs State
2022 Latest Caselaw 9799 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Appeal No. 177/1990

Lrs. Chhagan Lal

----Appellant Versus State

----Respondent

For Appellant(s) : Mr. Vineet Jain, Sr. Advocate a/w Mr. Pravin Vyas For Respondent(s) : Mr. Laxman Solanki, P.P.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Judgment

Reserved on 11/07/2022 Pronounced on 27/07/2022

1. This Criminal Appeal under Section 374 Cr.P.C. has been

preferred claiming the following reliefs:-

"It is, therefore, prayed that the appeal may kindly be accepted and the conviction and sentence awarded to the appellant may kindly be set aside and he may be acquitted"

2. This Criminal Appeal has been preferred against the

judgment, dated 28.05.1990, passed by the Special Judge (Anti-

Corruption Cases), Udaipur in Original Case No. 11/85 titled State

Vs. Chhagan Lal whereby Chaggan Lal was convicted for the

offences under Section 5 (1) (d) and (2) of the Prevention of

Corruption Act, 1947 and Section 161 I.P.C., and awarded him a

sentence of 1 year R.I. along with Rs. 1000/- in default of

payment of which he was to further undergo 1 month S.I. for each

of the offences.

(2 of 19) [CRLA-177/1990]

3. Brief facts of the case as laid before this Court by the learned

counsel for the appellants are that an F.I.R., at Ex. P/6, was

lodged by the complainant P.W.4 Shankerlal, to P.W.9 S.P.

Khadgawat, A.S.P., A.C.D. Udaipur on 12.03.1985 stating therein

that while Chaggan Lal was engaged as a handling and

transportation agent cum contractor with the Rajasthan Staet

Warehousing Corporation Centre, Udaipur, he had submitted bills

on 01.03.1985 worth Rs. 30,000/- before Chaggan Lal who was

delaying the verification process and despatch of the said bills,

and was demanding a sum of Rs. 2000/- as illegal gratification for

the said purpose. Subsequently, a trap was laid on 12.03.1985 at

about 03:00 p.m. while the appelant was in his office with his

Managing Director, P.W. 14- Tara Prakash Joshi. And that, a

recovery of Rs. 2000/- was made from Chaggan Lal which is

alleged to have been paid outside the office by the complainant,

P.W. 4.

4. Learned counsel for the appellants submits that it has been

the plea of the late Chaggan Lal from the very beginning that he

advanced various amounts towards loans to the complainant of

Rs. 10,000/- from time to time, and that the Rs. 2000/- so

recovered from him was made by the complainant towards a

repayment of the same. And that, the same was not disclosed by

the complainant when he was interrogated under Section 161

Cr.P.C. but subsequently , the same was admitted by him.

5. Learned counsel for the appellants further submits that

P.W.14 was a signatory to the recovery memo, being the head of

(3 of 19) [CRLA-177/1990]

the department in which Chaggan Lal was working in, accorded

the sanction for the prosecution of the appellant, vide Ex.P/20.

6. Learned counsel for the appellants also submits that as per

Ex.P/21 covering letter, was placed before P.W. 14, for the purpose

of acquiring prosecution sanction, but that neither was the

investigation file, the statement of the complainant, at Ex.D/4 nor

the documents of statements of Shri Raj Kumar, Shri Rajendra

Prasad and Shri Pratap Singh under Section 161 Cr.P.C., at Ex.P/7,

Ex.P.9 and Ex.P/11 were not produced before him. And that,

therefore, the authority which granted the prosecution sanction

make an application of mind, and therefore, is infirm.

7. Learned counsel for the appellants further submits that

Chaggan Lal, when apprehended, had offered the explanation for

acceptance of the amount of Rs. 2000/- on the spot, being

towards repayment of the loan advanced by him to the

complainant.

8. Learned counsel for the appellants also submits that the

learned Court below has gravely erred in holding that there was a

delay in the dispatch of bills, and that nine of the ten bills had

been duly verified and were ready for dispatch, and that the tenth

bill in fact lacked verification and therefore could not be

dispatched. And that, the forwarding letter was also ready and

signed, and enclosed in the envelope as well. Moreover there were

intervening holidays on 03.03.1985, 06.03.1985 to 10.03.1985,

further delaying the same.

9. Learned Public Prosecutor opposes the submissions made on

behalf of the appellants and submits that the learned Court below

(4 of 19) [CRLA-177/1990]

has rightly passed the impugned order of conviction after looking

into the overall facts and circumstances of the case, and the

evidences placed on record before it.

10. Learned Public Prosecutor also submits that from a bare

perusal of the record, and looking to the testimony of multiple

witnesses, the factum of demand of illegal gratification and

recovery of the same from the accused, as detailed hereinabove

have been proven against him.

11. Learned Public Prosecutor further submits, that the motive

for the demand of illegal gratification is said to be established,

since the accused herein sought the bribe from the complainant

for the purpose of submission of the pending bill of the

complainant withheld by the accused-appellant.

12. Learned Public Prosecutor also submits that the explanation

provided by the accused, that the money was received towards a

repayment of loan, was not substantiated with evidence and

rightly disbelieved by the learned Court below. And that, the

accused was unable to successfully rebut the presumption against

13. At the outset, this Court thinks it necessary and fit to keep

into consideration the observations made by the Hon'ble Supreme

Court, with regard to the gravity and seriousness of offences

under the Prevention of Corruption Act, 1988 and the catastrophic

effect that such offences, if left unchecked, have on a democratic

society, in State of M.P. & Ors. Vs. Ram Singh (2000) 5 SCC

88.

Relevant portion of the said judgment is reproduced as under:-

"Corruption in a civilised society is a disease like cancer, which if not detected in time is sure to malignancies the polity

(5 of 19) [CRLA-177/1990]

of country leading to disastrous consequences. It is termed as plague which is not only contagious but if not controlled spreads like a fire in a jungle. Its virus is compared with HIV leading to AIDS, being incurable. It has also been termed as Royal thievery. The socio-political system exposed to such a dreaded communicable disease is likely to crumble under its own weight. Corruption is opposed to democracy and social order, being not only anti people, but aimed and targeted against them. It affects the economy and destroys the cultural heritage. Unless nipped in the bud at the earliest, it is likely to cause turbulence shaking of the socio-economic political system in an otherwise healthy, wealthy, effective and vibrating society."

14. Before delving into the case at hand, the relevant Sections of

the Prevention of Corruption Act, 1988 (as it stood then)

applicable in the present case, are reproduced below for the sake

of brevity:-

"7. Public servant taking gratification other than legal remuneration in respect of an official Act Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than 1[three years] but which may extend to 2[seven years] and shall also be liable to fine.

Explanation.--

(6 of 19) [CRLA-177/1990]

(a) "Expecting to be a public servant." If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will when serve them, be may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) "Gratification." The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) "Legal remuneration." The words "legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept.

(d) "A motive or reward for doing." A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section"

13. Criminal, misconduct by a public servant (1) A public servant is said to commit the offence of criminal misconduct, --

(a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person for himself or for any other person any gratification other than legal remuneration as active or reward such as is mentioned in section 7; or

(b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceedings or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or

(c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person so to do; or

(d) if he,--

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(7 of 19) [CRLA-177/1990]

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public, interest; or

(e) if he or any person on his behalf, is in possession or has, at any time during the period of his office, been in possession for which the public servant cannot satisfactorily account, of pecuniary resources or property disproportionate to his known sources of income.

Explanation.--For the purposes of this section, "known sources of income" means income received from any lawful source and such receipt has been intimated in accordance with the provisions of any law, rules or orders for the time being applicable to a public servant.

(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than 1[four years] but which may extend to 2[ten years] and shall also be liable to fine."

20. Presumption where public servant accepts gratification other than legal remuneration (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) or sub- section (1) of section 13 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 section 7 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 12 or under clause (b) of section 14, 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 contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or, as the case may be,

(8 of 19) [CRLA-177/1990]

without consideration or for a consideration which he knows to be inadequate.

(3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn."

15. This Court observes that, for the offences under Sections 7

and 13 sub-section (1) (d) read with Section 13 sub-section (2) of

the Prevention of Corruption Act, 1988 to be made out against the

accused, it is necessary that; the twin ingredients of a demand of

illegal gratification / bribe of remuneration; or any valuable thing,

either without consideration or a consideration which is known to

be inadequate by the accused; or for a pecuniary advantage, for

himself or another, made by the accused or by another on his

behalf, coupled with a recovery of the said illegal gratification from

the accused, or from someone who has accepted the same on his

behalf; or if he has dishonestly or fraudulently misappropriates or

otherwise converts for his own use any property entrusted to him

or under his control as a public servant, must be proven by the

prosecution as per the facts and circumstances of each case.

15.1 It is a settled position of law that any allegation under the

aforementioned sections against an accused, if sans a demand for

any kind of illegal gratification, (hereinafter referred to as

'Demand') or a recovery of the same (hereinafter referred to as

'Recovery'), as discussed above, would result in a failure of the

prosecution to prove its case, beyond all reasonable doubt.

16. However, in case a Demand and a Recovery have been

proven before the competent Court by placing the evidence on

(9 of 19) [CRLA-177/1990]

record, which may include, but not be limited to; audio and/or

video recording of trap proceedings, transcript of telephonic

conversation between complainant and accused, chemical testing

of the currency notes and the clothes / person of the accused, or

his conduit, by phenolphthalein powder or anthracene powder,

testimonies of complainant and/or investigating officer/shadow

witness and/or trap/panch witness and/or other witnesses, and

whether any of the witnesses have turned hostile, the accused

may rebut the same, to the satisfaction of the competent Court

and averting to the facts of the case, by providing a justification /

explanation to such demand.

17. This Court further observes, as is clear from the legislative

intention crystallised in the provision of law under Section 20 of

the Act of 1988, that in case a demand for illegal gratification has

been proved, then 'it shall be presumed, unless the contrary is

proved' i.e. it is rebuttable at the instance of the accused if he is

able to justify / explain the purpose for the said demand so made,

and substantiate the same with cogent and clear evidence, to the

satisfaction of the concerned Court.

18. The same has been reinforced, time and again, by the

Hon'ble Apex Court, as is evident from the judgment rendered in

B. Noha Vs. State of Kerala and Ors. (2006) 12 SCC 277,

wherein, while referencing the ratio decidendi laid down in the

earlier decision of State of A.P. v. Kommaraju Gopala Krishna

Murthy (2000) 9 SCC 752 the Hon'ble Apex Court observed the

following:-

(10 of 19) [CRLA-177/1990]

"...that when amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification."

18.1 Therefore, when it appears that an amount, which may

appear to be a Demand made by an accused, has been passed to

the accused, then a presumption under Section 20 of the Act of

1988 is made against the accused, and the burden of proof of

rebutting the same then lies on the shoulders of the accused.

18.2 Furthermore, in Guruviah & Ors. Vs. The State (2019) 8

SCC 396 wherein the Hon'ble Apex Court referenced the ratio

decidendi laid down earlier in T. Shankar Prasad v. State of

A.P. (2004) 3 SCC 753 and also took into consideration, that

although a justification / explanation was given by the accused, it

was not offered immediately after the recovery of money but at a

belated stage, which called into question the authenticity of the

same.

Relevant portion of T. Shankar (supra) is reproduced below:-

"The involvement of both of the them a well-planned and cleverly managed device to systematically collect money stood sufficiently established on the evidence let in by the prosecution. Further, A-2 did not offer his explanation immediately after the recovery of money. A similar plea of receiving money as advance tax was rejected and affirmed by this Court in A. Abdul Kaffar v. State of Kerala."

19. This Court is also conscious of the following judgments

rendered by the Hon'ble Apex Court:-

19.1 State of Gujarat Vs. Bhalchandra Laxmishankar Dave

(2021) 2 SCC 735 wherein the Hon'ble Apex Court, while dealing

with a case wherein the High Court had set aside the order of

(11 of 19) [CRLA-177/1990]

conviction passed by the Court below and acquitted the accused

therein, made the following observations:-

"We have gone through the detailed judgment and order of conviction passed by the Learned Trial Court and also the evidence on record laid down by the prosecution as well as the defence. We have perused the impugned judgment and order of acquittal passed by the High Court to ascertain whether the High Court has conformed to the principles while exercising in the criminal appeal against the judgment and order of conviction. We find that the High Court has not strictly proceeded in the manner in which High Court ought to have while dealing with the appeal against the order of conviction. On perusal of the impugned judgment and order of acquittal passed by the High Court, we find that, as such, there is no re-appreciation of the entire evidence on record in detail while acquitting the Respondent - Accused. The High Court has only made general observations on the depositions of the witnesses examined.

The High Court ought to have appreciated that it was dealing with the first appeal against the order of conviction passed by the Learned trial Court. Being First Appellate Court, the High Court was required to re-appreciate the entire evidence on record and also the reasoning given by the Learned trial Court while convicting the Accused. Being the First Appellate Court the High Court ought to have reappreciated the entire evidence on record without any limitation, which might be there while dealing with an appeal against the order of acquittal passed by the Learned Trial Court. Therefore, we are of the firm opinion that the impugned judgment and order passed by the High Court acquitting the Respondent - Accused without adverting to the reasons given by the Learned trial Court while convicting the Accused and without reappreciating the entire evidence on record in detail cannot be sustained and the same deserves to be quashed and set aside."

19.2 State of U.P. Vs. Ram Asrey 1990 Supp (1) SCC 12

wherein the Hon'ble Apex Court observed as under:-

(12 of 19) [CRLA-177/1990]

"The appellate Court has given the following reasons for allowing the appeal of the respondent, they being:

1) There is no corroboration of the testimony of the complainant, Ambar Prasad regarding the demand of bribe by the respondent on 27.10.79.

2) The evidence adduced by the prosecution that even on 5.11.79, the respondent demanded the bribe from Ambar Prasad in the presence of other persons without taking any precaution is not convincing.

3) There is no acceptable reason as to why Ambar Prasad who had promised to give the bribe money on 8.11.79 came even on 5.11.79 with the vigilance party.

4) Though Ambar Prasad agreed to pay Rs. 15/-, he paid only Rs. 10/-.

5) The application said to have been presented by Ambar Prasad is not found.

6) No evidence whatsoever was produced to show that Ambar Prasad required a backward class certificate for getting the scholarship in the month of November.

The sum and substance of the above reasonings go to show that there is no acceptable and clinging evidence proving that there was a demand of bribe and that the respondent accepted the amount in question as a motive or reward for doing an official act or showing a favour to Ambar Prasad in expertise of his official function. On going through the impugned judgment of the High Court, we are of the view that the facts and circumstances of this case do not warrant interference.

In the result, the appeal is dismissed"

19.3 Ayyasami Vs. State of Tamil Nadu (1992) 1 SCC 304

wherein the Hon'ble Apex Court made the following observations:-

"The High Court found that the witnesses who were associated in the conduct of the raid for recovery of tainted money from the appellant could not be termed as independent who could be associated with such raids. The High Court further expressed doubt about veracity of the witness who claimed that money was actually handed over in his presence. The High Court, however, drew an adverse inference against the appellant from the circumstance that the, bill which was delayed for unreasonable

(13 of 19) [CRLA-177/1990]

period had suddenly been passed by the appellant On an overall assessment the High Court entertained some suspicion about the credibility of the prosecution witnesses but at the same time did not find the suspicion to be strong enough to raise doubt about the guilt of the appellant. We agree with the learned Counsel for the appellant that in the face of the finding that the witnesses who formed part of the raiding party were not independent and the evidence regarding handing over money to the appellant being unbelievable, the conviction of the appellant cannot be sustained. The guilt of the appellant has not been proved beyond reasonable doubt and as such the benefit must go to him."

19.4 Meena Vs. The State of Maharashtra (2000) 5 SCC 21

wherein the Hon'ble Apex Court made the following observations:-

"Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also.

The other person, who was present at the place of occurrence though cited initially as witness, was not examined by the prosecution but later was got examined as DW-1 and evidence of this person completely belies the prosecution story. The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW-5, categorically admitted that even as the Inspector of Police, PW-6, arrived, the appellant gave the same version that PW-1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution.

It is an obligation of judicial conscience to correct errors, where the same are manifest. The judgments of the courts below suffer from serious infirmities and manifest errors on account of unwarranted inferences liberally drawn by the courts below against the appellant, overlooking the fundamental principle of presumption of innocence of an accused till the charge leveled and his guilt is established beyond all reasonable doubt. The courts below have failed to consider the adverse

(14 of 19) [CRLA-177/1990]

impact on the prosecution case from the evidence of PW-2 and the withholding of the lady constable and Jagdish Bokade, two material witnesses.

The materials on record in this case are not sufficient to bring home the guilt of the appellant. Consequently, the appeal is allowed. The conviction and sentence of the appellant is set aside and the fine, if any, paid shall be refunded to the appellant."

19.5 Seema Silk and Sarees and Ors. Vs. Directorate of

Enforcement and Ors. (2008) 5 SCC 580 wherein the Hon'ble

Apex Court, with regard to presumption made against the

accused, made the following observations:-

"The presumption raised against the trader is a rebuttable one. Reverse burden as also statutory presumptions can be raised in seevral statutes as, for example, the Negotiable Instrumetns Act, Prevention of Corruption Act, TADA, etc. Presumption is raised only when certain foundational facts are established by the prosecution. The accused in such an event would be entitled to show that he has not violated the provisions of the Act. "

20. This Court also takes into consideration the following passed

by the Hon'ble Coordinate Benches of this Court in;

20.1 Hari Rudra Bhavan Vs. The State of Rajasthan R.L.W.

1982 Raj 676 decided on 12.03.1982 wherein a Coordinate

Bench of this Court, after analyzing the testimonies of witnesses,

observed as under:-

"The prosecution could not succeed in proving beyond reasonable doubt that the appellant demanded or accepted illegal gratification from Mangat Singh for payment of interest on his Jagir bonds. In the absence of any trust-worthy evidence from the side of the prosecution relating to demand and acceptance of bribe I am unable to up-hold the convictions and sentences of the appellant under Sec. 161, I.P.C. and Sec. 5(2) read with Sec. 5 (1) (d) of the Prevention of Corruption Act."

(15 of 19) [CRLA-177/1990]

20.2 Ulfat Rai Arya Vs. State of Rajasthan 2007 CriLJ 1846

decided by a Coordinate Bench of this Court on 07.12.2006,

wherein the following observations were made:-

"A plain reading of the above provision makes it clear that when the accused accepted the gratification, the presumption immediately comes into play that he accepted it as a motive or reward such as is mentioned in Section 161, IPC. Hon'ble the Apex Court in the case of T. Shankar Prasad's case, (2004 Cri LJ 884) (supra) held that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or for bearing to do any official act etc. if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 4 of the Act is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. In M. Narsinga Rao's case (supra) it was held that where the receipt of gratification was proved, the Court was under a legal obligation to presume that such gratification was accepted as a reward for doing the public duty.

In Gulam Mahmood A. Malek's case 1980CriLJ1096 (supra) it was held that while appreciating the evidence the background of the case should not be lost sight of it was also laid down that past conduct of the complainant should not be ignored. In Suraj Mai's case (supra) it has been observed that in a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In Kesaram's case (supra) it has been held that when accused at the earliest disclosed the fact of receiving Rs. 100/- against the money due in the brother of the complainant and the defence version has been supported by the prosecution witnesses, the appellant has succeeded in probising the defence. In Duraisami's case (supra), it was held that when the explanation given by the accused is found to be true and genuine then case set up by the defence has to be accepted."

21. At the cost of repetition, this Court deems it proper to

summarise the observations made by the Hon'ble Apex Court in

the aforementioned precedent laws in the following manner:-

(16 of 19) [CRLA-177/1990]

21.1 For offences under the Sections 7 and 13 (1) (d) read with

Section 13 (2) of the Act of 1988, it is fundamental that a Demand

and Recovery of the same is proven against the accused.

21.2 The presumption under Section 20 of the Act of 1988,

operates against the accused, and places the burden of proof upon

the accused, unless he rebuts the same to the satisfaction of the

competent Court, and whether the rebuttal was made at the

appropriate stage.

21.3 Owing to the fact that in old cases, wherein the technology

of audio / voice recording, transcripts of conversations etc.

proving the existence of Demand rests solely in the realm of

witness testimony and other material evidences placed on record

before the concerned Court.

21.4 And that, an appellate Court may interfere with an order of

conviction, under the Act of 1988, only after a re-appreciation of

of the entire evidence on record and thereafter, if the appellate

Court finds the reasons as laid out by the Court below, in

convicting the accused, under the Act of 1988, to be bad or

unsustainable in the eye of law, then it may interfere and

accordingly, reverse the conviction into an acquittal.

22. Now adverting to the facts and circumstances of the present

case, this Court makes the following observations:-

22.1 The factum of recovery of the money from the accused has

been proven, by the chemical tests and cross verification of the

currency so recovered from him, and is an admitted position of

the accused-appellant himself, who stated that the said money

(17 of 19) [CRLA-177/1990]

was accepted by him as a repayment of the loan money which

owed to him by the complainant.

22.2 What therefore needs to seen and dissected is the reasoning

employed by the learned Court below in arriving at the finding

that the factum of demand of illegal gratification was made by the

accused-appellant and whether the same withstands judicial

scrutiny, when compared with the evidence available on the

record.

22.3 The stand taken by the appellant is that the money

recovered from his person, was towards the repayment of a loan

advanced by him to the complainant. However, the explanation

offered by him was unsuccessful in rebutting the presumption

made against him under Section 20 of the Prevention of

Corruption Act, 1988, owing to the fact that the complainant was

able to substantiate with credible evidence that although he did

use to take loans from the appellant, the amount taken on loan by

him was of Rs. 5000/-, RS. 2000/- taken in the year 1980 and

Rs.3000/- in the year 1981 which he repaid by way of cheque for

RS. 5000/- in the year 1984, which was given to the brother of

the accused-appellant, one Mr. Rajendra, and the counter-foil of

the said cheque was placed on the record. The contention of the

appellant that the total amount of loan advanced was Rs. 10,000/-

and that the remainder of Rs. 5000/- was accepted by way of

cash, was rightly disbelieved by the Court below given that there

was no evidence to substantiate the same. Furthermore, the

accused did not appear before the learned Court below to

substantiate the same through testimony.

(18 of 19) [CRLA-177/1990]

22.4 Further, it was the contention of the appellant that he was

false implicated in the case, but there is nothing on the record to

suggest the same, nor was any reason attributed to the same.

22.5 Therefore, the explanation provided by the accused-appellant

was rightly disbelieved by the learned Court below. Moreover, the

other defence taken by the accused-appellant that the last bill was

kept pending with him on count of certain holidays and pending

verification of the said bill, was rightly held lacking credibility as

the same should have been then deposited to the custody of the

dispatch clerk. The fact that the said bill was withheld in the

custody of the appellant further weakens the stand so taken by

him.

23. This Court therefore finds that the learned Court below has

categorically dealt with the evidences placed on record, and after

a thorough scrutiny and appreciation of the same, found that

presumption, under Section 20 of the Prevention of Corruption,

against the appellant stands, and that he was unable to rebut the

same. And the factum of recovery stood proved against him, and

therefore rightly found him guilty for the offences under the

Sections Section 7, 13 (1) (d) and 13 (2) of Prevention of

Corruption Act, 1988.

24. This Court, in light of the above made observations and the

aforementioned precedent laws laid down by the Hon'ble Apex

Court, finds that the judgment of conviction, dated 28.05.1990,

passed by the learned Court below deserves to be upheld.

25. This Court, therefore, finds that the impugned judgment

dated 28.05.1990 passed by the learned Court below, does not

(19 of 19) [CRLA-177/1990]

suffer from any legal infirmity, and therefore, the same is upheld

and affirmed.

26. Resultantly, the appeal is dismissed. Since the accused

herein (represented in this case by his LRs) has passed away,

there is no need to make any observations regarding his sentence.

Accordingly, all pending applications, if any, are disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

20-Skant/-

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