TMI Blog2011 (1) TMI 1557X X X X Extracts X X X X X X X X Extracts X X X X ..... d goods. The two of them even refused to acknowledge the stay order passed by the Calcutta High Court and insisted that they would take action against him for violating the provisions of Customs Act, 1962. Inspector P.S. Saini demanded a bribe of ₹ 2 lakhs, one lakh each, for himself and the Appellant, failing which he threatened that action would be taken against him. Thereafter, the Complainant was taken to the Customs Office at around 4.00 p.m. After a talk with Prem Nath Sudan, Superintendent Customs (Preventive) the complainant came out. Outside his office these two persons were again standing and they threatened and told him that unless he paid them the bribe of ₹ 2,00,000/-, they would not leave him. On his refusal the Complainant was threatened that they would seize the articles from his premises and would harass him for about six months. On 7th July, 1989 the Respondent telephoned the Complainant and asked him to come to his residence 234, Gagan Vihar, Near Radhu Place, Delhi along with the demanded ₹ 2 lakhs The Complainant told him that he could arrange ₹ 60,000/- only. To this the Respondent asked him to come to his house along with ₹ 60,00 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the accused, it is not safe to rely upon the sole testimony of the Complainant in this regard. The learned trial court held that the motive of bribe set up by the prosecution is that the godown was checked by the accused and P.S. Saini on 4th July, 1989 and there they found certain notified articles. However, after the Complainant was taken to Sh. P.N. Sudan, Superintendent Customs who has appeared as PW7, on checking the documents, PW7 was satisfied that the Complainant was having valid papers for the import of the notified articles and, thus, there was no reason or motive on the part of the accused to demand illegal gratification and also on the part of the Complainant to part with the demanded money. As regards the subsequent demand, it is held that the Complainant has not stated about the demand on 8th July, 1989 at his residence and the bag containing ₹ 60,000/- was recovered from the cot lying in the drawing room of the accused. The money was not recovered from the person of the accused. The learned trial court did not find it fit to rely on the testimony of Rameshwar Nath PW3 as the Complainant PW2 had turned hostile and also found his version improbable that the sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the testimony of PW3 is duly corroborated on material particulars and hence reliance should be placed thereon. Relying on M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691, it is stated that once demand and acceptance is proved from direct or circumstantial evidence then in view of Section 20 of the P.C. Act, the Statutory presumption has to be drawn which has not been done by the learned trial court. Learned counsel thus contends that the learned trial court not only ignored material evidence but also did not raise the statutory presumption, which it was legally bound to raise and hence the impugned judgment is illegal, perverse and calls for interference by this Court. 4. Learned counsel for the Respondent contends that PW3 is a stock witness and in his cross examination he has admitted that he has joined the CBI in 5-6 raid/departmental enquiries. Reliance is placed on Babudas v. State of M.P., 2003 (9) SCC 86 to state that no reliance can be placed on the testimony of such a witness. It is stated that there are material contradictions in the testimony of the witnesses inasmuch as PW2, 3 and 4 say that money was kept in a hand bag of black colour, zip of which was broken w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mony states that when he was coming out of the office of PW7 on the 4th July, 1989, Shri P.S. Saini and the Respondent were standing outside the office. Shri P.S. Saini again demanded money from him and on his refusal he threatened that they would seize the articles from his premises and that he would be harassed for about six months. The Respondent was present at that time along with Shri Saini and both Shri Saini and the Respondent asked him that it would be better if he paid the amount. On the Complainant keeping quiet, they directed him to arrange the money. On 7th July, 1989 the Complainant received a telephone call from the Respondent asking him to make the payment otherwise they would seize the goods from his premises. The Respondent asked him to make the payment at the Respondent s Gagan Vihar residence, The Complainant stated that he could arrange only ₹ 60,000/-. The Respondent asked him to pay ₹ 60,000/- on 8th July, 1989 at 8 a.m. and make the payment of balance amount within 3-4 days. The learned Trial Court rejected this testimony of PW2, the Complainant on the ground that when he received the telephone call, according to him, his brother-in-law Ram Malhot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Khujji@ Surendra Tiwari vs. State of Madhya Pradesh AIR 1991 1853. Before discussing the testimony of PW3 and other witnesses in this regard, it would be relevant to note an important aspect. The testimony of PW2 commenced on 17th September, 1993 when his examination in chief was being recorded. He fully supported the prosecution case on that date. While narrating the sequence of events he had deposed about facts uptil entering the house of the Respondent at about 8 a.m. on 8th July, 1989. However, at this stage further statement of PW2 was deferred. When his further statement was recorded on 24th November, 1993, he showed a volte-face. On 24th November, 1993, he did not support the prosecution version and thus was cross examined by the learned APP. PW2 in his testimony though has not alleged specific demand at the time when he took money and went to his house however, he states that he kept the bag containing money on the Sofa and when he said that his uncle is sitting in the car, the Respondent asked him to call his uncle whereupon he called PW3 posing him as his uncle inside the drawing room of the Appellant. At that time he kept the money from the seat of the sofa onto the char ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is further corroborated by the fact that money was withdrawn from the bank account of PW2 who has clearly deposed about it. 8. I also find force in the contention of the learned counsel for the Appellant that once demand and acceptance is proved then the statutory presumption under section 20 arises and onus shifts to the Respondents to rebut the said presumption. In M. Narsinga Rao vs. State of Andhra Pradesh, 2001 (1) SCC 691 it was held that where receipt of illegal gratification was proved the Court was under a legal obligation to presume that such gratification was accepted as reward for doing a public duty. In the report it was held: 13. Before proceeding further, we may point out that the expressions may presume and shall presume are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as factual presumptions or discretionary presumptions and those falling under the latter as legal presumptions or compulsory presumptions . When the expression shall be presumed is employed in Section 20(1) of the Act it must have the same import of compulsion. 14. When the sub-section deals with legal p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on course of natural events, human conduct, public or private business vis-aviz the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act. 17. 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. 18. 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 ther ..... X X X X Extracts X X X X X X X X Extracts X X X X
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