TMI Blog2004 (1) TMI 680X X X X Extracts X X X X X X X X Extracts X X X X ..... A. No. 910/97)(also described as A1 and A2) were working as Assistant Commercial Tax Officer and Junior Assistant respectively in the office of the Commercial Tax Department of Kanigiri, Prakasam District. Way bills were issued to the traders by the department for their day to day transactions and taxable goods to be transported were required to be covered by the way bills issued by the department. Complainant (PW-1) was a dealer in grocery articles and under the relevant sales tax statutes, a registered dealer. He applied for way bills. On 25-4-1992 he requested the accused T. Shankar Prasad to get the way bills duly stamped and signed by him. The officer demanded ₹ 400/- as bribe in the presence of other accused. When the complainant expressed his inability to pay the amount, the demand of the bribe was reduced to ₹ 300/-. Complainant agreed to pay the amount within two to three days. Since he was not interested to pay the bribe, he reported the matter to the Anti Corruption Bureau officials on 28-4-1992. The case was registered by the officials on the said date and mediators were secured and trap was arranged. Since on that day accused T. Shankar Prasad was not avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be deposited as advance tax and when he was about to write the challan, the Anti Corruption Bureau officials caught hold of him and implicated him falsely. 4. The trial Court noticed that PW-1 had partially resiled from the statement made by him during investigation. He made half-hearted attempt to support the accused Ghaiz Basha. The trial Court found them guilty under Sections 7 and 13(1)(d) read with Section 13(2) of the Act. It sentenced each of the accused to undergo rigorous imprisonment for two years for the offence relatable to Section 7 and imposed similar sentence for the other offence i.e. under Section 13(1)(d) read with Section 13(2) of the Act. Fine of ₹ 1,000./- each was also imposed with default stipulation. Appeals filed by the accused persons before the Andhra Pradesh High Court were dismissed by the impugned judgment except modification of sentence. The sentence was reduced to 6 nonths for the offence relatable to Section 7, and one year for the offence relatable to Section 13(1)(d) read with Section 13(2) of the Act. It did not find any substance in the plea that the evidence of PW-1 did not implicate the accused persons and since no money was recovere ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y have no axe to grind with the accused, are independent witnesses and the Courts below have rightly relied on the evidence. 8. For appreciating rival stands it would be proper to quote Section 4(1) of the Act, which reads as follows : 4.(1) Presumption where public servant accepts gratification other than legal remuneration. - (1) Where 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. 9. Before proceeding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se of natural events, human conduct, public or private business vis-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. 13. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled. 14. For the purpose, of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is to be noted that decisions relied upon by the learned counsel for the accused were considered in Narsinga Rao s case (supra) and it was held that the principles had no application as the findings recorded depend upon the veracity of the testimony of the witnesses, so far as Suraj Mal s case (supra) is concerned, and the observations in Sita Ram s case (supra), were to be confined to the facts of that case and no legal principle for future application could be discerned therefrom. 19. In Black s Law Dictionary, gratification is defined as a recompense or reward for services or benefits, given voluntarily, without solicitation or promise . But in Oxford Advance Learner s Dictionary of Current English the said word is given the meaning to give pleasure or satisfaction to . Among the above two descriptions for the word gratification with slightly differing nuances as between the two, what is more appropriate for the context has to be found out. The context in which the word is used in Section 4(1) of the Act is, hence, important. 20. In Mohmoodkhan Mahboobkhan Pathan v. State of Maharashtra - 1997 (10) SCC 600 this Court has taken the same meaning for the word gra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 161 IPC or as the case may be 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 inference of corruption may fairly be drawn. 22. In State of Madras v. A. Vaidiaratha Iyer - 1958 SCR 580 after reproducing the relevant provisions of Section 4 of the Act this Court observed that where it is proved that a gratification has been accepted the presumption under Section 4 of the Act shall at once arise. It is a presumption of law and it is obligatory on the Court to raise it in every case brought under Section 4. In the reported case this Court allowed the appeal of the State of Madras and setting aside the impugned order of acquittal passed by the High Court restored that of the Special Judge convicting the respondent there. In C.I. Emden v. The State of U. P. - AIR 1960 S.C. 548, the appellant who was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uneration, then, the condition prescribed by this section is satisfied and the presumption thereunder must be raised. In Jhangan v. State of U.P. - 1968 (3) SCR 766 the above decisions were approved and it is observed that mere receipt of money is sufficient to raise the presumption under Section 4(1) of the Act. 22. In C.I. Emden v. State of Uttar Pradesh - AIR 1960 SC 548 and V.D. Jhangan v. State of Uttar Pradesh - 1966 (3) SCR 736 it was observed that if any money is received and no convincing, credible and acceptable explanation is offered by the accused as to how it came to be received by him, the presumption under Section 4 of the Act is available. When the receipt is admitted it is for the accused to prove as to how the presumption is not available as perforce the presumption arises and becomes operative. 23. These aspects were highlighted recently in State of Andhra Pradesh v. V. Vasudev Rao - JT 2003 (9) SC 119. 24. On a close reading of PW 1 s evidence it appears that he has not really given a clean chit to the accused persons. Though a feeble attempt was made to show that he has not implicated A-2, in fact that is really not of significance when his evidence ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which may seem to be plausible. The evidence of PWs 4, 5, 7 and 8 read with the evidence of PW-1 established recovery of money from A-2. A belated and stale explanation was offered by A-2 that the money was paid towards tax. This plea was rightly discarded as there was no tax due and on the contrary the complainant was entitled to some refund. An overall consideration of the materials sufficiently substantiate, in the case on hand the prevalence of a system and methodology cleverly adopted by the accused that the demand will be specified when both the accused were present and thereafter as and when the A-1 puts his signature the party has to meet A-2, at his seat for fixing the seal and making entry in the Register to make the process complete only after collecting the amount already specified by A-1 in A-2 s presence. The involvement of both of them in a well planned and cleverly managed device to systematically collect money stood sufficiently established on the evidence let in by 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 Kaffa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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