TMI Blog2020 (6) TMI 219X X X X Extracts X X X X X X X X Extracts X X X X ..... to the trust. There is no material to connect the respondent with the trust and that he was benefited from the trust amount. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence can 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 equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to the burden placed on the prosecution to prove the case beyond a reasonable doubt. The burden resting upon the accused is not so onerous, the respondent discharged the same by proof of balance of probabilities. Appeal dismissed. - CRL.A.No.398 of 2009 - - - Dated:- 9-6-2020 - HONOURABLE MR. JUSTICE M. NIRMAL KUMAR For Appellant : Mr.K.Srinivasan Special PP for CBI Cases For Respondent : Mr.R.Rajarathinam for Mr.J.Radhakrishnan JUDGME ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or charities and made two fixed deposits for a total amount of ₹ 7.5 lakhs in the name of trust. (ii) The respondent obtained 27 donations from the persons with whom he was having official connection. PW62, the Investigating Officer, registered the complaint and examined donors, who have stated about taking demand draft in the name of trust at the request of the respondent and handing over the demand draft, some of the demand draft were taken from Canara Bank, Azhagapuram Branch, which was spoken by PW6 and PW7. PW9 to PW26 are the Income Tax Officers and Commissioners of Income Tax, who have stated about the donors being Assessees of Income Tax department, who were either under scrutiny or had obtained exemptions under Section 80(G) of the Income Tax Act. PW27 to PW30 and PW58 are the Assistant Managers and Managers of CCCB Limited, Cuttack, who have stated about opening of the bank account in the name of trust, handling of the trust amount by the respondent's father and the donations received by demand draft being credited to the account of the trust. PW2 to PW5 and PW32 to PW57 are the Assessees and Chartered Accounts. PW59 to PW61 are the Inspectors of CBI, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , the receipts and payments of the trust are proved. As per Section 13(1) (b) of the Prevention of Corruption Act, the presumption under Section 20 comes into play which has not been dislodged by the respondent. Further, there is no dispute as to the respondent dealing with the file of the donors. In view of the same, the trial Court ought to have convicted the respondent and hence, he prayed for setting aside the judgment of acquittal. 8. Per contra, Mr.Rajarathinam, the learned counsel appearing for the respondent submitted that in the FIR, it is clearly mentioned that the trust was started at Cuttack on 05.10.2001 by Smt.Jashawini Patnaik, Dr.Manoj Kumar Bhuyan and Dr.Smt.Soudamani Das as trustees and by way of resolution of the trust, the respondent's father was authorized to operate the account, for the reason that the Managing Trustees was residing in a village and it was difficult to operate the trust account. The respondent's father was an Auditor of the Bank which has been clearly stated by PW28. Hence, for the sake of convenience he was made to operate the account. Further, majority of witnesses, have clearly stated that three or four persons from Orissa had co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... communication with regard to exemptions, refund, surveillance, Block Assessment are between the Assessing Officer, the respondent and the Commissioner, which are all confidential, nobody has access to the same. 11. None of the witnesses have stated anything about any promise or favour given to them by the respondent and thereby they made any donation to the trust. The donors have either stated that it was on the instructions of the Auditors or on appeal made by two or three persons who had come from Orissa seeking donations, the donations were made. None have stated that the donations were made at the instance of the respondent or on his compulsion. The functioning of the trust was transparent, its accounts were audited and submitted to the Income Tax Department which is not in dispute. Further PW27 to PW30 as well as PW58, had clearly stated it was Dr.Manoj Kumar Bhuyan, who is the Managing Trustee of the trust. PW28 the Branch Manager of CCCB Limited, Cuttack, stated that he was present with CBI Inspector, who enquired Dr.Manoj Kumar Bhuyan, the Managing Trustee and visited the village, where the trust was carrying on its activities, found the trust was not a name sake trust ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elephonic request. 14. Further Ex.P1 is the Sanctioning Order which has been authenticated by PW1. In the Sanction Order there are factual errors. PW1 being an authenticating officer is unable to give satisfactory explanation for the same. It is admitted that the respondent is only an intermediate officer and he has no occasion to meet donors personally. The bank officials, PW25 to PW30 and PW58 and the CBI officials, PW59 and PW60 had clearly stated about the existence of the trust. PW62, the Investigating Officer admitted that he had not visited Cuttack. There are sufficient documents to prove that the trust was carrying its charitable works. Hence, the evidence of PW32, PW41, PW52 being highly doubtful, cannot be relied upon. 15. The learned counsel further submitted that out of 22 donors, 16 donors have not supported the case of the prosecution, the remaining 6 donors had stated clearly that the donations was voluntarily given by them and the respondent had no direct or indirect contact with them. The respondent had no interface with the Assessees and Auditors. Hence, he had no connection of official functions with them. The three witnesses PW32, PW42 and PW52 are unrelia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nterference with the order of acquittal, it would be gain said to extract the relevant portion of the judgment in the case of A.Shankar Versus State of Karnataka reported in (2011) 6 SCC 279 :- 26.It is settled legal proposition that in exceptional circumstances the appellate court under compelling circumstances should reverse the judgment of acquittal of the court below if the findings so recorded by the court below are found to be perverse i.e. the conclusions of the court below are contrary to the evidence on record or its entire approach in dealing with the evidence is found to be patently illegal leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case. While dealing so, the appellate court must bear in mind the presumption of innocence of the accused and further that acquittal by the court below bolsters the presumption of his innocence. ( Vide Abrar v. State of U.P. [(2011) 2 SCC 750 : (2011) 2 SCC (Cri) 702] and Rukia Begum v. State of Karnataka [(2011) 4 SCC 779 : (2011) 2 SCC (Cri) 488 ].) 21. PW62, the Investigating Officer admitted that he had not visited Cuttack. PW59 and PW60, the Inspe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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