N Criminal Appeal No 116 of 1971
Appeal by special leave from the Judgement and order dated the 27th November 1970 of the Delhi High Court in Crl
Appeal No 35 of 197
Uma Datta for the appellant
Govind Das and R N Sachthey for the respondent
The Judgment of the Court was delivered by SARKARIA J
This appeal by special leave is directed against a judgment of the High Court of Delhi upholding the conviction of the appellant under section 52 read with section 51 d of the Prevention of Corruption Act and section 161 Penal Code recorded by the Special Judge Delhi
The facts of the prosecution case are as follows The complainant section K Jain manufactures rubber motor parts in his factory at Shahdara
On his application the Delhi Electric Supply Undertaking at Gandhinagar sanctioned a power connection for his factory l he complainant deposited the estimate of expenses under the 9 L839 Sup
CI75 350 terms of the sanction
In spite of it for a period of four months no A steps were taken by the employees of the Undertaking to instal the poles and give the connection
section P Gupta an Inspector of the Undertaking approached the complainant and solicited a bribe of Rs 125 in consideration of giving the connection
lt was settled that Rs 25 would be paid on June 2 1968 and the balance of Rs 100 after the electric connection
The complainant had no intention to pay the bribe
Consequently he contacted section K Katoch Deputy Superintendent of the Anti Corruption Police on June 20 1968 at about 1 pm and apprised the latter about the demand of the bribe by Inspector Gupta
The Deputy Superintendent recorded the complainant s statement exhibit PW lA
He then co opted Daya Nand Dua PW2 and Bharat Prakash Khurana PW 3 two clerks from the office of the Deputy Commissioner and formulated a scheme for entrapping Gupta the Police party reached the factory of the complainant at about 305 pm
The complainant and the Panch witnesses went inside while the Police officers waited outside
The complainant received a message from Gupta through a Lineman that insteadl of the 20th he would be coming on the following day that the installation of poles at the site had commenced and the complainant would be required to pay more amount
The complainant conveyed this information to DSP Katoch
On June 21 1968 at about 1015 am Gupta came to the factory along with his gang of labourers and started the installation work
Gupta informed the complainant that he would return to the factory either personally or send somebody else to collect the amount of Rs 100 at about 2 pm
The complainant passed on this information also to the DSP Thereafter the DSP along with the aforesaid witnesses and others came to the complainant at about 1130 am and settled the details of the trap
The complainant produced one currency note of the denomination of Rs 100 
The DSP noted its No andreturned it to the complainant with the direction that he should pay it to Gupta
Gupta however did not turn up at 2 pm
Instead the appellant a permanent labourer working under Gupta came to the factory and told the complainant that he had been sent by Inspector Gupta and that the money be given to him
The complainant said that the appellant should send Gupta to receive the money
The appellant reiterated that he had been deputed by Gupta to collect the money and the same be given to him
Thereupon the complainant handed over the currency Note of Rs 100 exhibit P l to the appellant in the immediate presence of PWs 2 and 3
The appellant put the note in the pocket of his pants
On receiving the agreed signal the DSP and his companions rushed in and recovered the currency note exhibit P l from the person of the appellant
The DSP then sent a report to the Police Station on the basis of which a case was registered
The appellant was arrested
Subsequently on 22 6 1968 Gupta was also arrested
After obtaining the necessary sanction the appellant and Gupta both were sent up for trial before the Special Judge Delhi who acquitted Gupta but convicted the appellant and sentenced him to one year s rigorous imprisonment
Examined under section 342 Cr
PC the appellant admitted that at the material time he was a permanent labourer Mazdoor of the DESU 351 working in Shahdara Zone
He gave this account of the circumstances in which he had received the currency note exhibit Pl from the complainant At about 12 30 I had come down from the first floor of my office and was going to my house to take my meal in the Hotel
I was called by Gupta
He was standing near the boundary wall
He inquired from mc as to where I was going
l told him that l was going to take my food
He directed me that after taking my food I should visit the complainant s factory where the labour was working and told me to ask Jain to pay the money which Guptaji had demanded
I did not know what sort of money it was and for what purpose it was to be paid by section K Jain and to be taken by Gupta
accused
One Mitter Sell was also present at that time when this talk took place between me and Gupta accused
I accordingly after taking my food went to the complainant s factory and checked the work of the labour and then went to the complainant and asked him to pay me the money which had been demanded by Guptaji
Complainant told me to send Guptaji but I told him that he had asked me to bring the money
He therefore paid me a currency note of Rs 100 without disclosing anything that this was bribe money to be paid to Gupta co accused
 He further admitted that soon after the collection of this amount from the complainant the DSP came there with his party and recovered the same currency note from his possession
He added that he was only a labourer and was not in a position to show any favour whatever to the complainant
He did not know that the note was bribe money
He claimed to be all innocent carrier
In defence he examined Mitter Sen DW 1 who corroborated the appellant s version as to how Gupta had instructed the appellant to collect and bring the money from the complainant
Two charges one under section 51 d read with section 52 of the Prevention of Corruption Act and the other under section 161 Penal Code were framed against the appellant
The charges were in the alternative and it was stated therein that the money was obtained by him either for him self or for Gupta or for both
The courts below have convicted the appellant mainly on the ground that proof of receipt of Rs 100 currency note by the appellant from the complainant raises a presumption under section 41 of the Prevention of Corruption Act against him and the appellant has not been able to rebut that presumption
Section 41 of the Prevention of Corruption Act reads Wherein any trial of an offence punishable under section 161 or section 165 of the Indian PenaI Code or of an offence referred to in clause a or clause b of sub section 1 of section 5 of this Act punishable under sub section
2 thereof it is proved that an accused person has accepted or obtained or 352 has agreed to accept or attempt to obtain for himself or for A 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 the said section 161 or as the case may be without consideration or for a consideration which he knows to be inadequate
 From a reading of the above provision it is clear that its operation in terms is confined to any trial of an offence punishable under section 161 or section 165 Penal Code or under clause a or b of section 51 read with sub section 2 of that section of the Act
If at such a trial the prosecution proves that the accused has accepted or obtained gratification other than legal remuneration the court has to presume the existence of the further fact in support of the prosecution case viz that the gratification was accepted or obtained by the accused as a motive or reward such as mentioned in section 161 Penal Code
The presumption however is not absolute
It is rebuttable
The accused can prove the contrary
The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case
Such proof may partake the shape of defence evidence led by the accused or it may consist of circumstances appearing in the prosecution evidence itself as a result of cross examination or otherwise
But the degree and the character of the burden of proof which section 41 casts on an accused person to rebut the presumption raised thereunder cannot be equated with the degree and character of proof which under section 101 Evidence Act rests on the prosecution
While the mere plausibility of an explanation given by the accused in his examination under section 342 Cr
PC may not be enough the burden on him to negate the presumption may stand discharged if the effect of the material brought on the record in its totality renders the existence of the fact presumed improbable
In other words the accused may rebut the presumption by showing a mere preponderence of probability in his favour it is not necessary for him lo establish his case beyond a reasonable doubt see Mahesh Prasad Gupta vs State of Rajasthan1
Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under section 41 is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under section S 1 2 of the Prevention of Corruption Act and section 161 Penal Code
The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it
If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed the presumption will be rendered sterile from its very inception if out of judicial courtesy it cannot be rejected out of hand as still born
Let us now consider the facts of the present case in the light of the principles enunciated above
The testimony of its star witness section K 1 A I R 353 Jain PW 1 is that it was Inspector Gupta who had demanded that money as a motive or reward tor expediting the installation of the power connection and that the money was handed over to the appellant only for transmission to Gupta in pursuance of the latter s instructions given to the complainant earlier in the morning
It is not the case of the complainant that the appellant had ever demanded any bribe from the complainant or that the appellant was present on any occasion on which Gupta had demanded the bribe
Nor has it been shown by the prosecution that the appellant was in any way officially concerned with the installation of the poles or the giving of the electric connection
At the material time according to the appellant he was working as a mere labourer or Mazdoor in the first floor of the DESU Office at Shahdara
This fact is not controverted by the prosecution
Of course it is in evidence that on coming to the factory of the complainant at about 2 PM the appellant first went to see the labour working at the installation site and then went to the complainant to receive the money saving that he has been sent by Gupta to fetch it
Mr Gobind Das the learned Counsel for the State contends that this conduct of the appellant in checking the labour showed that he was not an innocent carrier of the money for Gupta but knew that it was being obtained as a bribe in connection with the installation of the power connection
In any case maintains the Counsel the appellant was guilty of abetment of an offence under sec 161 Penal Code and section 5 of the Act
We are unable to accede to this contention
In our opinion this Act of the appellant was a neutral circumstance
It was not indicative of a guilty mind
The appellant explained that he had checked the labour working at site because he had been asked to do so by Inspector Gupta
This conduct of the appellant therefore was no ground to hold that he had received the GC Note of Rs 100 with the requisite mens rea
Evidently in collecting this currency note from the complainant he was Acting only as an innocent tool of Gupta
He was a mere labourer
Even in that humble position he was not a member of the gang working at the installation site in the factory of the complainant
He was not concerned ill his official capacity with the installation work or the giving of power connection
Being an unconcerned menial he was incapable of showing any favour or rendering any service to the complainant in connection with his official duties
One of the essential ingredients of the offence under section 161 IPC with which the appellant stands charged is that the gratification must have been received by the accused as a motive or reward for committing an act or omission in connection with his official functions
lt must be shown that there was an understanding that the bribe was given in consideration to some official act or conduct
It is true that in law the incapacity of the government servant to show any favour or render any service in connection with his official duties does not necessarily take the case out of the mischief of these penal provisions
Nevertheless it is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward for doing or for hearing to do any official act or for showing any favour or disfavour in the exercise of his official functions
This question as to whether the government servant receiving the money 354 had the requisite incriminatory motive is one of fact
Could it be reasonably said in the circumstances of the instant case that the money was handed over to the appellant or received by him as a motive or reward such as mentioned in section 161 Penal Code  It is nobody s case that while collecting the sum of Rs 100  the appellant made any representation claim or promise whatever that he would either himself or through Gupta get an official act done for the complainant
Indeed a prudent businessman like Jain would never pay such a substantial amount as a bribe to a mere Class IV servant in consideration of any promise of favour or service held out by the latter
Such a tall claim or promise to do favour or service by a menial would be manifestly quixotic
It would not pass muster
Indeed the complainant did not hand over the money till he after repeated enquiry was convinced that the appellant was asking for money not for himself but for Gupta and had been sent by the latter to collect anl fetch it from the complainant
The conduct attributed by PW 1 to the appellant was not incompatible with the role of an innocent carrier
Thus paradoxical as it may seem the very story propounded by the complainant PW 1 negates the presumption nipping it as it were in the bud
Be that as it may this statutory presumption being antithetical to the prosecution story could not be availed of by the prosecution
This being the position the appellant could not be held guilty of the charge with the aid of section 41 of the Act
Nor can the appellant be held guilty of abetting the alleged attempt made by Gupta to obtain the illegal gratification
Intention to aid The commission of the crime is the gist of the offence of abetment by aid
Such intention on the part of the appellant was lacking in this case
Moreover Gupta the principal has been acquitted and exonerated of committing the offending act the commission of which is alleged to have been aided by the small fry the appellant
The charge under section S 1 d of the Act also cannot be sustained for the reason that in the peculiar circumstances or the case it could not be reasonably said that the appellant had obtained the currency note by using some corrupt or illegal means or otherwise abusing his official position as a public servant
This point was canvassed on behalf of the appellant before the High Court but was negatived by it in these terms In this case the appellant had told the complainant that he had been sent by Inspector Gupta and that he should pay the money
It has been held by the Special Judge while acquitting Inspector Gupta that he was not the person who had sent the appellant to collect any money from the complainant
Before contacting the complainant the appellant had checked the labour which was working in the factory for installation of the lines for electricity
All this showed that he represented himself to the complainant as a person connected with the Department concerned
He also used corrupt means to ask the money on behalf of Inspector Gupta and thus this ingredient was satisfied
 We find ourselves unable to agree with this reasoning
We have already noticed above that this was not the case of the prosecution as 355 put in evidence that the appellant had demanded the money on his own account by any express or implied representation to get any favour or service done to the complainant
Rather the positive case set up by the prosecution in evidence was that the money was demanded by Gupta and was received by the appellant on his behalf pursuant to the instructions of Gupta given to the complainant earlier
Therefore if the prosecution has failed to prove that the money had not been paid to the appellant pursuant to any demand of bribe made by Gupta the court cannot make out a new case for the prosecution to hold that the amount had been received by the appellant on his own or for some person other
than Gupta
We have already held that the appellant was a mere labourer who was not concerned with the installation work at the site or with the giving of the power connection to the complainant
In view of the categorical position taken by the prosecution in evidence it does not now lie in their month to may that the appellant must have received the money for himself or for some other person much less can it be said that the appellant has abused his official position or has used any illegal means in acting as an innocent carrier for Gupta
Thus the essential ingredient of the offence under section 51 d was lacking in this case
We are therefore of the opinion that on the facts of this case the prosecution had failed to bring home the charges to the appellant beyond a reasonable doubt
Accordingly we allow this appeal set aside the conviction of the appellant and acquit him of the charges levelled against him
VPS Appeal allowed


Summary:
An inspector of the Delhi Electric Supply Undertaking demanded a bribe for giving the complainant a power connection for his factory
Information having been given to the anti corruption police a trap was set
The inspector did not turn up at the appointed time to receive the money but the appellant a permanent labourer working under him came to the complainant s factory told him that he had been sent by the Inspector and that the money should be given to him The complainant at first insisted that the inspector himself should come but later gave him the money
The money was recovered from the appellant and the inspector and the appellant were charged with offences under the Prevention of Corruption Act
The trial court acquitted the inspector but convicted the appellant under section S2 read with section 51d of the Act and under section 161 IPC with the aid of the presumption under section 41 of the Act
The conviction was confirmed by the High Court
Allowing the appeal to this Court  HELD   I  The question whether a government servant receiving money had the requisite incriminatory motive is one of fact
353H 354A 2 one of the essential ingredients of the offence under section 161 IPC is that the gratification must have been received by the accused as a motive or reward for committing an act or omission in connection with his official functions
Even if the government servant was incapable of showing any favour or rendering any service in connection with his official duties he may be guilty but the existence of an understanding that the bribe was given in consideration of some official act or conduct is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward as mentioned in section 161 IPC 353GH 3  The appellant being a mere labourer was incapable of showing any favour or rendering any service to the complainant in connection with his official duties
It had not been shown by the prosecution that he was in any way officially concerned with the installation of poles or the giving of electric connection nor was it shown that the appellant made any representation claim or promise that he would either himself or through his inspector get an official act done for the complainant
Or that the appellant had demanded bribe from the complainant
353A C F In the absence of any such circumstances the conduct of the appellant was not incompatible with the role of an innocent carrier of money without the requisite mens rea
353E 4 The charge under section 51d also is unsustainable because it could not be reasonably said that the appellant obtained the money by using corrupt or illegal means or otherwise abusing his official position as a public servant 5 Section 41 of the Prevention of Corruption Act Provides that in the trial of an offence punishable under section 161 or 165 IPC or under cls
a or b of 5 51 read with sub section
52 of the Act if the prosecution proves that the accused had accepted or obtained a gratification other than legal remuneration the court has to presume that the gratification was accepted or obtained by the accused as a motive or reward as mentioned in section 161 IPC 351 H 52B 349 6 a The presumption however is not absolute and is rebuttable
The quantum and nature of proof required to displace the presumption varies according to the circumstances of each case
Such proof may partake of the shape of defence evidence adduced by the accused or it may consist of circumstances appearing in the prosecution evidence itself as a result of cross examination or otherwise
While the mere explanation given by the accused in his examination under section 342 Cr PC may not b enough the burden on him to negate the presumption may stand discharged if the effect of the material brought on record in its totality renders the existence of the fact to be presumed improbable
The accused may therefore rebut the presumption by showing a more preponderance of probability in his favour and it is not necessary for him to establish his case beyond reasonable doubt
352 CF Mahesh Prasad Gupta vs State of Rajasthan  followed b Further the sole purpose of the presumption under section 41 is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offence under section 51 and 2 of the Act and section 161 IPC The presumption therefore can be used only in furtherance of the prosecution case and not in derogation of it
352F G c In the present case
the statutory presumption being antithetical to the prosecution story namely that it was the inspector who demanded the bribe for showing a favour and that the payment was intended for him could not be availed of by the Prosecution against the appellant
354 CD 7 Nor can the appellant be held guilty of abetting the alleged attempt made by the inspector to obtain illegal gratification
Intention to aid the conn mission of the crime is the gist of the offence of abetment and such intention on the part of the appellant is lacking in this case
It has not been shown that the appellant was present any occasion when the inspector demanded the bribe
354 D G 8 Moreover the principal accused had been acquitted
The prosecution having failed to prove that the money had been paid to the appellant pursuant to the demand for a bribe by the inspector the court cannot make out a new cause for the prosecution and hold that the amount had been
received by the appellant on his own or for some person other than the inspector
355 B D