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2009 (2) TMI 888

2. The appellant along with Accused No. 1 was tried for offences under Section 120B of IPC read with Section 7 and 13(2) read with 13(1)(d) of Prevention of Corruption Act, 1988 (hereinafter referred to as the said Act ) by Special Judge (SPE/CBI)-I, Ernakulam who by his judgment dated 30th March, 2002 convicted the appellant for the offence punishable under Section 7 read with Section 13(1)(d) and 13(2) of the said Act. He was acquitted of the charge under Section 120B of the IPC. The appellant was accordingly sentenced to undergo rigorous imprisonment for three years and to pay a fine of ₹ 20,000. In default for payment of fine the appellant was further ordered to undergo rigorous imprisonment for a further period of six months for the offence punishable under Section 13(1) read with Section 13(2) of the said Act. He was also sentenced to undergo rigorous imprisonment for two years for the offence punishable under Section 7 of the said Act. The substantive sentences were directed to run concurrently. 3. The appellant preferred an appeal to the Kerala High Court at Ernakulam, which dismissed the appeal by its judgment dated 28th November, 2007. However, the Appellate Court r .....

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, he could heard the appellant asking is it ready? and PW-10 only nodding his head. It is for that reason the High Court recorded that the alleged demand by the appellant on 2.10.1999 is highly doubtful and is not proved beyond reasonable doubt. The High Court relied upon yet another circumstance creating a doubt as regards the demand of any gratification by the appellant as there is no mention of any such demand in Exhibit P-9 - post trap mahazar. The High Court accordingly acquitted the appellant of charges under Section 13(1)(d) read with Section 13(2) of the said Act. 9. The prosecution story mainly rested upon the evidence of PW-10 who is the central figure in the entire story of the prosecution. He did not support the prosecution story and was declared hostile. It was to him that the Accused No. 1 had allegedly made a demand of gratification on the morning of 1.10.99 and it was in his presence Accused No. 1 repeated the demand when he went along with PW-2 in the evening of 1.10.99 to the Air Cargo office. This is the version given by PW-2. But PW-10 does not support this story. PW-10 in his evidence stated that on 1.10.99 Accused No. 1 in the morning hours suggested certain c .....

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miserably failed to establish the theory of criminal conspiracy hatched by the appellant along with Accused No. 1 to demand and receive gratification; b) The prosecution miserably failed to establish its theory that there was a demand of gratification by Accused No. 1 on 1.10.99; c) There is no proof on any demand of gratification by the appellant on 2.10.99; d) The evidence of PW-11, the official witness, Assistant Manager, Vigilance of FCI to the effect all that he heard was appellant asking PW-10 is it ready? to which PW- 10 nodded his head. This evidence of the official witness present at the time of trap does not establish that there was any demand of gratification by the appellant. There is no reason to disbelieve the evidence of PW-11; e) Exhibit P-9 post trap mahazar does not record the factum of any demand of gratification by the appellant. 13. The evidence on record suggests that PW10 had given money to the appellant stating that it was a loan repayable by PW2 to accused No. 1. The appellant was lulled into that belief based on which he received the amount from PW-10. 14. The fact remains that the prosecution established through evidence of PW-12 and PW-13 and Exhibit P9 .....

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y 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 without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in Sub-sections (1) (2), the court may decline to draw the presumption referred to in either of the said Sub-sections, if the g .....

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kin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence of proof his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 under the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e.; that of establishing on the whole case the guilt of the accused beyond a reasonable doubt. (See Jhangan v. State 1966 : [1966]3SCR736 ) .....

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