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Himachal Pradesh High Court · body

2013 DIGILAW 183 (HP)

P. R. Rajpal v. State of Himachal Pradesh

2013-03-15

DEV DARSHAN SUD

body2013
Judgment : Justice Dev Darshan Sud, J. (Oral) The appellant has been convicted for offences under Sections 7 and 13 (a) (d) of the Prevention of Corruption Act (hereinafter referred to as the Act). 2. Bereft of all details, the prosecution case is that the accused, who was working as Chief Engineer, NHPC Baira Siul Project, Surangani, District Chamba, H.P., had demanded bribe of Rs.20,000/- from complainant Shri Kamal Kishore (PW10), who was working as Government Contractor, for clearing his outstanding bills. Complainant lodged an FIR, Ex. PW12/A with PW13 Dy. Superintendent of Police Paras Ram, who set a trap and apprehended the appellant/accused red handed purportedly accepting the bribe of Rs.10,000/- from the complainant in order to facilitate the payment of his bills. The prosecution case of course proceeded with the fact that the currency was treated with phenolphthalein powder and the said currency was seized from the accused and hand wash etc., turned pink. In order to prove its case, the prosecution examined 14 witnesses. The learned Special Judge, on conclusion of the trial holds that the evidence adduced by the prosecution was per se sufficient to attract the provisions of the Act aforesaid and proceeded to sentence the accused to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.25,000/- for offence under Section 7 of the Act and in default of payment of fine amount, to further undergo simple imprisonment for six months. He was further sentenced to undergo rigorous imprisonment for three years and fine of Rs.25,000/- for offence punishable under Section 13(1)(d) of the Act and in default of payment of fine, to further undergo simple imprisonment for one year. Both the sentences were directed to run concurrently. 3. Adverting to the case of the prosecution, the star witness is the complainant PW-10 Shri Kamal Kishore, whose evidence requires consideration. He states that he is working as Government Contractor. In the year 2009, he had been assigned two works of NHPC which had been completed by him on 31.3.2009. With respect to the payment of both these works, he used to visit the office of the accused on number of occasions requesting that the amount be paid to him but the accused put him off on one pretext or the other as he wanted cut/share in the money. With respect to the payment of both these works, he used to visit the office of the accused on number of occasions requesting that the amount be paid to him but the accused put him off on one pretext or the other as he wanted cut/share in the money. He uttered the words “Band Khao Khand Khao” (if you want money you must share it with me). The complainant states that he was in urgent need of money, but was refused legitimate payment unless the accused was paid Rs.20,000/-. The demand was resented by the complainant and he discussed the entire matter with his colleague contractor Shukar Deen (PW-11) and they both decided to inform the police telephonically with respect to the attitude of the appellant and his persistent illegal demand for gratification. On 10.4.2009, police met the complainant at Manjeer. His statement Ex.PW10/A was recorded. Solution of sodium carbonate and phenolphthalein powder in two separate tumblers was prepared by the police and mixing of these two solutions was demonstrated to the complainant by showing that when both are mixed, the colour of the solution turned into pink. Shri Shukar Deen (PW11), PW-3 Inspector Harish Chander and one driver were present there at that time, who had singed the memo. Sample of seal was also taken on a piece of cloth. At that particular time, he was having currency notes worth Rs.10,000/-. Numbers of these currency notes were noted down by the police. The police treated this currency with phenolphthalein powder and thereafter it was handed over to him with the instructions that in case appellant takes this money, the powder will come in contact with the hands of the accused/appellant and on being washed in solution of sodium carbonate , the solution will turn pink. The complainant was directed to proceed to the office of the accused to handover the currency notes to the accused and to signal PW-11 Shukar Deen, who was the shadow witness, who in turn would signal the raiding party by touching his ear with his hand. 4. After the trap had been set, complainant Shri Kamal Kishore, PW-10 went inside the office of the accused while PW-11 Shri Shukar Deen was outside at the door of the office. 4. After the trap had been set, complainant Shri Kamal Kishore, PW-10 went inside the office of the accused while PW-11 Shri Shukar Deen was outside at the door of the office. The complainant entered the room and requested the accused for payment of his bills but he was told that unless the amount demanded was paid, his bills would not be paid. Upon this, he handed over the treated currency notes to the accused which were kept by him in the right pocket of his pant without counting. The accused then inquired from the complainant about the amount handed over to which the complainant replied that it was ten thousand rupees. The complainant stated that both the bills were lying in the drawer of the accused. After the money had been paid, the accused took out one bill (presumably because of the payment of Rs.20,000/- was for two bills) and sent the same to the finance department through his (accused) personal peon and told the complainant that second bill will be cleared lateron. The evidence then proceeds that during this period Shri Shukar Deen, PW11 had signaled to the raiding party as directed, when two policemen rushed towards the room immediately disclosed their identity and caught hold of the accused by his hands. Dy. Superintendent of Police also followed them. At this point of time, the complainant was sitting on a chair in front of the accused. The accused was interrogated by the police as to why he has received the bribe, to which the answer was in the negative but before the police could search him, he voluntarily took out the currency notes from his right pocket and handed it over to the police. Thereafter 2-3 persons from the office of the accused were called inside the room, hand wash solution was prepared as demonstrated and it turned pink on addition of the sodium carbonate. The numbers of the currency notes were tallied by the police, recovery memos etc., were prepared. He further states that second bill was cleared after about one and half or two months and in this final payment, the payment was reduced due to the influence exercised by the accused in the department. He says that even the wife of the accused was working there and he was denied further work by the NHPC. He further states that second bill was cleared after about one and half or two months and in this final payment, the payment was reduced due to the influence exercised by the accused in the department. He says that even the wife of the accused was working there and he was denied further work by the NHPC. He was categoric in evidence when he says that his entire suffering was at the hands of the accused. He was crossexamined at length which is quite revealing. He says “a JE named Ram Murti” (not produced in evidence) had informed him that the delay in payment of the bills was being occasioned by the accused. He had complained against the accused to his successors-in-interest in office but no action was taken. He did not complain/initiate any action against this successor. The fact that the payment of the bills was being delayed, was conveyed to the complainant 10/12 days prior to the incident. He had complained with respect to this fact and had also issued a notice through his advocate. He says that in the notice he has mentioned there was a threat to his life. Notice was sent to the accused as also to the NHPC officials. The complainant admits that he was not aware as to whether any reply etc., was received. He had not initiated any action civil or criminal after the issuance of that notice. More interestingly, he states that on 8.12.2009, he had filed an application in the Court of the learned Special Judge praying that the bail of the accused be cancelled for the reasons as stated therein but this application was dismissed on 18.1.2010. He admits that in 2006-07, a case was registered against him under Section 307, IPC which according to him as explained was the result of some political rivalry. He kept visiting the office of NHPC at Surangani on 31.3.2009, 3.4.2009, 4.4.2009 and after these dates he was visiting the office of the accused regularly till 9.4.2009. He did not sign any bill on 9.4.2009 in the office of NHPC and specifically denied the suggestion that bill Ex.PW6/A was signed by him on 9.4.2009. He admits that after the work is test checked by the Manager or the Chief Engineer, these officers have no role to play in the release of the payment which is to be processed by the finance department. He admits that after the work is test checked by the Manager or the Chief Engineer, these officers have no role to play in the release of the payment which is to be processed by the finance department. He denies that the work had been test checked by the accused on 14.3.2009 but admits that the work was completed on 31.3.2009. He admits meeting with Shri S.K. Mahajan, PW6 on 10.4.2009 at around 10.30-11 A.M., who had informed him that his bills were lying pending with the accused. He admits that he does not know the name of peon who took the bill to the finance department but he handed it over to Bashir Mohammad, which fact was not disclosed by him to the police. I note that Bashir Mohammad has not been produced in evidence. He had also not disclosed to the police that the bills were sent to the finance department. He then states that police had called Shri S. K. Mahajan, PW6 and one Sikh gentleman, who was Senior Manager and some other persons, whose names were not known to him, to the office of the accused when the bribe money was recovered from the accused. He then states “this fact was not told by me to the police”. He admits that he was debarred by NHPC from taking any work in that department for two years. The fact that there are two doors to the office of the accused was admitted by the complainant. These are a wooden door and wire mesh door. At the time when the trap was set, the police party was at the gate of the NHPC office. 5. The second important witness Shri Shukar Deen, PW- 11, was the shadow witness and has been associated with the case not only with the raiding party but was also a party in the application filed before the learned Special Judge, for cancelation of the bail of the accused where he had submitted his affidavit. This witness is also a contractor. He states that PW-10 Shri Kamal Kishore, complainant had disclosed to him that his bills were pending payment with the NHPC and were not being released to him for the reason that he (complainant) refused to pay the bribe as demanded. This witness is also a contractor. He states that PW-10 Shri Kamal Kishore, complainant had disclosed to him that his bills were pending payment with the NHPC and were not being released to him for the reason that he (complainant) refused to pay the bribe as demanded. The police party met them at Manjeer and solution of sodium carbonate and phenolphthalein powder etc., was prepared and demonstrated with respect to its changing colour to pink when water of these two solutions were mixed. He states that the complainant had produced currency notes of Rs.10,000/- to the police, who noted down the number of the currency notes and thereafter they were treated with phenolphthalein powder and handed over to the complainant for being handed over to the accused on demand. He was asked by the police to accompany the accused and to act as shadow witness. On their directions they proceeded to the office of the accused. When the complainant went inside the room of the accused, he remained standing outside the door. As soon as the complainant Shri Kamal Kishore, PW-10 handed over the money to the accused he signaled the police which immediately entered the room. He also followed them and the accused was apprehended. He states about the money being recovered from the pocket of the accused and the solution changing its colour. He was also crossexamined at length. He states that he is having very good relations with the complainant and that he had submitted his affidavit in a case filed before the learned Special Judge in which the complainant had filed an application seeking cancellation of the bail of the accused. He admits Ex.DX-1 (photograph of the outer door/doors in the office of the accused). He admits that there are two doors to the office of the accused, one consisting of wooden door and second of wire mesh. He states that he was standing near the Jali door (door having wire mesh) and the complainant Shri Kamal Kishore (PW-10) was sitting at a distance of 10-12 from the complainant. He had seen the accused receiving the money from the complainant and thereafter he signaled the police but could not properly hear the talk/words exchanged between the two. He does not remember whether there was any peon inside the office of the accused or not. He had seen the accused receiving the money from the complainant and thereafter he signaled the police but could not properly hear the talk/words exchanged between the two. He does not remember whether there was any peon inside the office of the accused or not. It is the evidence of these two witnesses which requires to be considered in detail as they form the crux of the proof of the allegations against the accused. The other witnesses will be considered during the course of this judgment. 6. From the charge, which has been levelled against the accused what emerges is (a) that the complainant was working as contractor with NHPC where the accused was working as Chief Engineer; (b) that there was some bill(s) which were pending payment; (c) that these bills formed the basis for the demand having been made by the accused who used the words supra demanding Rs.20,000/- before payment could be released and (d) that in order to facilitate the payment of bills since the complainant was in dire need of money he decided to part with the money. The trap was set and currency notes were treated with the phenolphthalein powder and this money was handed over to the complainant for being paid to the accused when demanded which fact has been evidenced by PW11 Shri Shukar Deen, who signaled the police party when this transaction was completed and they (police) immediately caught hold of the accused and (e) that when the money was handed over, the accused obliged the complainant by taking out a bill from his drawer and handed it over to the peon who immediately took the bill to the finance department so that the payment could be released/made immediately. 7. Adverting to the first aspect of the case, the prosecution has not been able to establish as to whether the bills were actually in the custody of the accused for the reasons that their own witness does not support the prosecution case. PW6 Shri S.K. Mahajan, Dy. 7. Adverting to the first aspect of the case, the prosecution has not been able to establish as to whether the bills were actually in the custody of the accused for the reasons that their own witness does not support the prosecution case. PW6 Shri S.K. Mahajan, Dy. Manager Civil, NHPC states that he was associated with the investigation and he has handed over the first and final bill Ex.PW6/A (eight leaves) and photo copies of measurement book Ex.PW6/B (six leaves-ten pages) to the police vide memo Ex.PW3/F. In cross-examination he states that after final bill is prepared then it was the responsibility of this witness (PW6) to send it to the finance department. After signing the test check certificate etc., the Chief Engineer has no role to play. He states that the final bill was prepared on 9.4.2009, the complainant came to him and inquired about sending of the bill for processing of payment upon which he told him that it would be done within one or two days. On 10.4.2009, the complainant came to him at about 10.30-11.00 a.m. and enquired about his bill and he told him that it was ready for dispatch. He admits that “on that day, Kamal Mahajan had asked me whether he was to meet any other person regarding the payment of the bill upon which I told him that since the bill has already been prepared and signed and there was no need to meet anyone.” 8. When this evidence is considered with that of the complainant, what is stated by the complainant is in total variance with the evidence of this witness. PW6 Shri S.K. Mahajan is clear in his statement that he had informed the complainant that the bill has already been prepared and signed and it was ready for dispatch. The complainant says that after the money was paid, some peon was called for sending the bill to the finance department which in fact he did, this fact is neither corroborated by the shadow witness PW-11 Shri Shukar Deen, who should and ought to have seen this peon, since he was standing immediately outside the door of the office or by the police personnel, who were standing outside the office premises at distance of 40/50 meters. Evidence of PW-11 Shukar Deen is that he does not remember about any peon carrying any file anywhere during the period when he remained standing outside the door and thereafter when he entered the room. He only states about the money being handed over by the complainant to the accused. As to whether bribe was in fact paid and demand made, it is not understood as to why and for what reason it was paid if at all, when the bill was nowhere in the custody, care or control of the accused for issuance of any direction either to pay or not to pay the bills, which fact stands proved by the evidence of PW6 Shri S.K. Mahajan. 9. What I find from the evidence is that the complainant himself admits that he was debarred from taking any work from NHPC and was possibly involved in a criminal case. However, what remains unresolved is the fact as to how bribe was paid for performance of a task and work, which admittedly was not within the ambit of the accused, who had already parted with control much prior to the time as the bills were lying with PW6 Shri S.K. Mahajan, who had informed the accused to collect his payment within one or two days. The trend of cross-examination of the complainant PW-10 Shri Kamal Kishore shows that he at one point of time had moved the court for cancellation of the bail of the accused on the ground that he was being threatened and coerced by the accused for withdrawal of the case failing which would suffer dire consequences. He has filed an affidavit to this effect before the learned Special Judge and to similar effect was the affidavit of PW-11 Shri Shukar Deen, who also says that he was asked to withdraw from the prosecution case failing which he would be dealt with appropriately. The learned Special Judge on consideration of the evidence has passed a detailed order and for those reasons dismissed the application for cancellation of bail as being based on unsubstantiated facts. This fact has not been considered by the learned Court below but is borne out from the record of the trial and is also a pointer to the fact that the complainant Shri Kamal Kishore, PW-10 and Shri Shukar Deen, PW-11 were not on good terms with the accused for whatever reasons. This fact has not been considered by the learned Court below but is borne out from the record of the trial and is also a pointer to the fact that the complainant Shri Kamal Kishore, PW-10 and Shri Shukar Deen, PW-11 were not on good terms with the accused for whatever reasons. This is one aspect of the case. 10. Adverting to the second aspect that is raid being conducted and tainted money being handed over to the accused and recovered from him, learned counsel appearing for the appellant submits that it was not possible for the police party to have seen the handing over of the money etc., for the reason (a) that Shri Shukar Deen, PW-11 could not witness what was happening inside the room. He did not hear any conversation between the accused and complainant, (b) the police party was at distance of 40-50 meters away from the door of the office of the accused and as admitted there was growth of trees in the compound. Learned Additional Advocate General submits that irrespective of all that has been submitted, what emerges from the evidence of the complainant is a sordid saga which sticks out like a sore thumb which is that the tainted currency was, in fact, recovered from the accused and that the hand wash in fact turned pink. Learned Additional Advocate General submits that this fact that the treated currency was recovered from the person of the accused is itself sufficient for conviction by invoking the presumption under Section 20 of the Act. 11. The demand and receipt or illegal gratification has to be considered in the totality of the facts and circumstances of the case. The demand has to be established by proving some act/duty which the accused was required to perform and which he did not perform but insisted for illegal gratification. That in this case are the two bills Ex.PW6/A and Ex.PW6/B supposed to be with the accused which fact has not been established. Rather Shri S.K. Mahajan, PW6 states that the bills were with him. Once this fact has been established by the prosecution witness itself, in the circumstances, the demand becomes bizarre. 12. That in this case are the two bills Ex.PW6/A and Ex.PW6/B supposed to be with the accused which fact has not been established. Rather Shri S.K. Mahajan, PW6 states that the bills were with him. Once this fact has been established by the prosecution witness itself, in the circumstances, the demand becomes bizarre. 12. Now adverting to the trap which was set for the accused, evidence of PW-1 C. Navneet Kumar, PW-2 C. Mohhammad Arif, PW-3 Inspector Harish Chander and PW7 Driver Tilak Raj and PW-14 Inspector Prakash Chand Patyal is relevant. C. Naneet Kumar (PW1) states that on the day when the raid was conducted he went to the office of the accused. According to the instructions of the In-charge of the trap party he caught hold of the right arm of the accused. There after his hands were washed. In cross-examination, he states that he was at a distance of 50 meters from the room of the office of the accused and it was open and every thing was visible from outside. He admits that the room of the accused was having two doors including one of wire mesh (jali) door and second was wooden door. PW-2 C. Mohamad Arif states that he was also part of the raiding party and that on the signal being received, he caught the accused from his left wrist while C. Navneet (PW1) caught him (accused) from his right wrist. Thereafter Dy. Superintendent of Police and Inspector Parkash (PW-14) inquired from the accused about receiving the bribe money. In crossexamination he says that “from 3.15 PM to 3.50 P.M, police party remained present outside the gate of NHPC. The distance of NHPC gate from the office of accused is about 50 meters. …………when we entered in the office of accused, at that time, the door was open. However, wire mesh (Jali) door was closed. I do not remember that wire mesh door and main door were having door closures.” PW-3 Inspector Harish Chander supports the case of the prosecution and admits in cross-examination that the distance in between the office of the accused and the NHPC gate was 50 meters and that there are trees shading the area in between the office and the gate. He then states that final bill was taken from Surinder Mahajan, PW6 in his presence. He then states that final bill was taken from Surinder Mahajan, PW6 in his presence. There were two bills one was signed and another one was yet to be signed by the accused. He does not remember the contents of the bill which was yet to be signed but both the bills were taken into possession by the police. The exact admission in cross-examination by this witnesses is that “it is correct that final bill was obtained from Surinder Mahajan in my presence. There were two bills, one had been signed and another one was yet to be signed by the accused. I do not remember the contents of the bill, which was yet to be signed by the accused. I do not remember the contents of the bill, which was yet to be signed. Both the bills were taken into possession by the police.” PW-13 Dy. S.P. Paras Ram corroborates the case of the prosecution. In cross-examination, he admits about there being two doors in the room of the office of the accused, one of wire mesh and second of wooden shutters. He says that the members of the raiding party were standing in the verandah or compound which is inside the gate of the NHPC. He is ignorant about any peon who was attached to the office of the accused. At his juncture. I also refer to the evidence of PW-14 Shri Prakash Chand, who was the SHO at that time. The only part of his testimony which requires carefully scrutiny is the fact that he states that “After complainant entered the room of the accused, a person had come out of the room after some time but I do not know who was that person. I did not try to find out who was that person. After the trap also, I did not try to find out who that person. I did not notice whether that person was having anything in his hands or not because my attention was towards shadow witness.” This is strange, reason being that surely it is the duty of the police who were present to have ascertained the identity of this employee and his role in the entire saga. 14. Learned Additional Advocate General submits that in case investigation is defective, the benefit should and ought not to be given to the accused. 14. Learned Additional Advocate General submits that in case investigation is defective, the benefit should and ought not to be given to the accused. True even if the investigation is fudged, the benefit of the same cannot be given to the accused. But the foundation of the case has to be proved and established and proof of facts garnered from the investigation if not specifically stated by any witness (See. Amar Singh v. Balwinder Singh and others, (2003)2 SCC 518 , Budh Singh vs. State of Madhya Pradesh, (2007) 10 SCC 496 , Visveswaran vs. State (2003)6 SCC 73 .) But in this case, What I find is that even the foundation as laid is not at all supported by the material collected and proved on the record. Even if the statement of complainant is accepted without his crossexamination his bills were signed by the accused. On the payment of the bribe, the bills were immediately sent to the finance department through a peon. There is no evidence on record to establish as to who this person was, who took the bill for sanctioning to the finance department. Shadow witness Shri Shukar Deen, PW- 11 is totally unaware as to whether there was any peon or not. PW11 Shri Shukar Deen and PW-14, Prakash Chand are totally non chalant about this so called peon. PW-6 Shri S.K. Mahajan also states that since the bills were in his custody nothing was required to be done by anybody. In these circumstances and taking into consideration the fact that the complainant being inimical towards the accused, I find that the case set out by the learned trial Court against the accused is highly improbable and has not been established by the evidence on record. 15. It was urged that the presumption under Section 20 of the Act should and ought to be drawn against the accused since he was in possession of the tainted money. Learned Additional Advocate General urges that the law requires the accused to explain the possession of this money. In Om Prakash versus State of Haryana, (2006)2 SCC 250 , the Supreme Court considers the applicability of Section 20 supra holding: “22. In view of the aforementioned discrepancies in the prosecution case, we are of the opinion that the defence story set up by the appellant cannot be said to be wholly improbable. In Om Prakash versus State of Haryana, (2006)2 SCC 250 , the Supreme Court considers the applicability of Section 20 supra holding: “22. In view of the aforementioned discrepancies in the prosecution case, we are of the opinion that the defence story set up by the appellant cannot be said to be wholly improbable. Furthermore, it is not a case where the burden of proof was on the accused in terms of Section 20 of the Act. Even otherwise, where demand has not been proved, Section 20 will also have no application. (Union of India v. Purnandu Biswas (2005)12 SCC 576 and T. Subramanian v. State of T.N. (2006)1 SCC 401 )” (p.255). 16. Again in V. Venkata Subbarao versus State represented by Inspector of Police, A.P., (2006)13 SCC 305 the Court holds : “24. Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under : "20. Presumption where public servant accepts gratification other than legal remuneration:- (1) Where, in any trial of an offence punishable under section 7 or Section 11 or clause (a) or clause (b) or sub- section (1) of section 13 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 section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate." 25. Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution. 26. In M.S. Narayana Menon @ Mani vs. State of Kerala & Anr. Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution. 26. In M.S. Narayana Menon @ Mani vs. State of Kerala & Anr. [ (2006) 6 SCC 39 ], this Court held : (SCC P.55, para 45) "Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding." 27. In Union of India v. Purnandu Biswas, (2005) 12 SCC 576, it was opined: (SCC p.305, para 7) "In this case demand of illegal gratification by the respondent has not been proved. Furthermore, Section 20 of the Act is not attracted as the respondent had been charged for commission of an offence under Section 13(1)(d) read with Section 13(2) of the Act."” (pp.310 & 311) 17. Lastly I only refer to the decision in C.M. Girish Babu versus CBI, Cochin, High Court of Kerala, (2009)3 SCC 779 reaffirming this principle holding: “18. In Suraj Mal Vs. State (Delhi Admn.), (1979) 4 SCC 725 , this court took the view that (at SCC p.727, para 2) 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 any evidence to prove payment of bribe or to show the accused voluntarily accepted the money knowing it to be bribe. 19. The learned counsel for the CBI submitted that the onus of proof was upon the appellant to explain as to how he came into possession of the amount recovered from him during the trap. The argument of the learned counsel is obviously based on Section 20 of the Prevention of Corruption Act, 1988 which reads as under: “20. 19. The learned counsel for the CBI submitted that the onus of proof was upon the appellant to explain as to how he came into possession of the amount recovered from him during the trap. The argument of the learned counsel is obviously based on Section 20 of the Prevention of Corruption Act, 1988 which reads as under: “20. Presumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an offence punishable under Section 7 of Section 11 or clause (a) or clause (b) of sub- section (1) of Section 13 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 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 subsections (1) (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 interference of corruption may fairly be drawn”. 19. A three-Judge Bench in M. Narsinga Rao Vs. (3) Notwithstanding anything contained in subsections (1) (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 interference of corruption may fairly be drawn”. 19. A three-Judge Bench in M. Narsinga Rao Vs. State of A.P. (2001) 1 SCC 691 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, observed: “24........................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, (2000) 8 SCC 571 .) 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) “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 presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word `gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.” 21. It is well settled that the presumption to be drawn under Section 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. It is well settled that the presumption to be drawn under Section 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. 22. 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 that of burden placed on the prosecution to prove the case beyond a reasonable doubt. “4………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.” (emphasis supplied) (See V.D. Jhingan Vs. State of U.P. AIR 1966 SC 1762 at p.1764, para 4).” (pp.784-786). 18. The undisputed ratio in these decisions is that both the demand and acceptance must be proved, when both of them become doubtful, no presumption can be raised or invoked. I need not reiterate the circumstances which have been considered by me above making it well nigh impossible to prove any demand. 18. The undisputed ratio in these decisions is that both the demand and acceptance must be proved, when both of them become doubtful, no presumption can be raised or invoked. I need not reiterate the circumstances which have been considered by me above making it well nigh impossible to prove any demand. I have also noticed that the evidence is deprecant when the peon, the two official of NHPC, who immediately came to the room and official of the finance department have not been examined to show that the file actually has been taken to them on that very day for process. Statement of PW-6 Shri S.K. Mahajan totally destroys the entire case of the prosecution. These facts when taken into consideration, the demand becomes highly improbable and well nigh impossible when considered with the fact that the complainant PW-10 Shri Kamal Kishore was inimical to the accused, the case of the prosecution cannot be said to have been proved nor there was any room to draw presumption under Section 20 of the Act. 19. The learned trial Court has been remiss in assessing the evidence where I find that the case has been disposed of in one paragraph without in any manner connecting the accused with the facts necessary to implicate him in this case. In these circumstances, this appeal is allowed. Judgment of the learned trial Court is quashed and set aside. Bail bonds furnished by the accused stand discharged. Fine amount, if deposited by the accused/appellant be refunded to the accused forthwith.