TMI Blog2009 (2) TMI 888X X X X Extracts X X X X X X X X Extracts X X X X ..... o proper opportunity was given to explain the sequence of events. A three-Judge Bench in M. Narsinga Rao v. State of A.P.[ 2000 (12) TMI 892 - SUPREME COURT] while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification It is well settled that the presumption to be drawn u/s 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification. It is against this background of principles we have examined the contention of the appellant that the charges u/s 7 have not been proved against him. It was argued by Shri U.U. Lalit, Senior counsel, that the circumstances found by the HC in their totality do not establish that the appellant accepted the amount of ₹ 1500/- as grati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dhan-PW10 and Prakash Kumar-PW2, who were the Senior Assistant and Manager respectively of M/s. Interfreight Services Pvt. Ltd., Trivandrum as a motive or reward for giving clearance for a wet grinder booked by one P. S. Shine to be sent to Dubai. 5. The appellant was also working as Inspector of Central Excise, Air Cargo Complex, Trivandrum along with Accused No. 1. On 2nd October, 1999 at about 6 a.m. the appellant is stated to have actually demanded the amount of ₹ 1,500/- from Dayanandhan-PW10 as gratification for clearing the same wet grinder and accepted the bribe amount for himself and on behalf of accused No. 1 and thereby committed offences under Section 7 read with Section 13(1)(d) and 13(2) of the said Act. 6. The prosecution story as unfolded during the trial is that the appellant and Accused No. 1 together conspired and committed the act of demanding and accepting gratification. 7. In the present case, it may not be really necessary to discuss the entire evidence available on record for the simple reason that the High Court acquitted the Accused No. 1 of all the charges and found no case against him. It is the Accused No. 1 who is stated to have demanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n making the suggested corrections. But Accused No. 1 insisted for carrying out corrections if the item was to be cleared for its despatch to Dubai. Then PW-10 requested the Accused No. 1 to meet PW-2 but Accused No. 1 retorted saying that whoever he may be, he will not meet him. 10. Be it noted that PW-2 thereafter never visited Air Cargo Complex till he came with the trap party early in the morning on 2.10.1999. PW-2 in his evidence stated that on 2.10.99 PW-10-Dayanadhan came to office at 4.30 a.m. and informed him that he went to the Air Cargo office and found that Accused No. 1 was not on duty and the appellant was on duty. According to PW-2, PW-10 informed him that on inquiry about the cargo the appellant told him that Accused No. 1 has already apprised him about the cargo and accordingly it would be cleared only if ₹ 1500/- is brought. PW2 stated in his evidence that he immediately wrote Exh.P2-complaint. He clearly admitted in his evidence that he had no personal knowledge as to what transpired between PW-10 and the appellant at the Air Cargo Office. The evidence of PW-2 about the demand of bribe amount by the appellant is hear say and therefore inadmissible. 11 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... official favour and whether the said amount was paid by PW-10 and received by the appellant as consideration for showing such official favour. The only evidence available in this regard is that of PW-10 who did not support the case of the prosecution. The appellant at the earliest point of time explained that it was not the bribe amount received by him but the same was given to him by PW-10, saying that it was towards repayment of loan taken by his Manager-PW2 from the Accused No. 1. This is evident from the suggestion put to PW-2 even before PW-10 was examined. Similar suggestion was put to the investigating officer that he had not recorded the version given by the appellant correctly in the post trap mahazar-Exhibit-P9 and no proper opportunity was given to explain the sequence of events. 16. In Suraj Mal v. State (Delhi Admn.) reported in 1979CriLJ1087 , this Court took the view that mere recovery of tainted 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. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a further duty to prove that what was paid amounted to gratification, observed: ...we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra. 2001 CriLJ 175 ) The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned Counsel: (SCC p.577, para 12) 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 presumptio ..... X X X X Extracts X X X X X X X X Extracts X X X X
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