iminal Appeal No 68 of 1958
Appeal by special leave from the judgment and order dated July 11 1957 of the Allahabad High Court Lucknow Bench Lucknow in Criminal Appeal No 515 of 1955 arising out of the judgment and order dated October 31 1955 of the Special Judge Anti corruption Lucknow in Criminal Case No 233245 of 1953 55
Frank Anthony Udai Pratap Singh and P C Agarwala for the appellant
G C Mathur and O P Lal for the respondent
December 15
The Judgment of the Court was delivered by GAJENDRAGADKAR J
This appeal by special leave Gajendragadkar j has been filed by C 1
Emden hereinafter called the appellant who has been convicted under section 161 of the Indian Penal Code and under section 52 of the Prevention of Corruption Act 2 of 1947 hereinafter called the Act
The case against him was that he had accepted a bribe of Rs 375 from Sarat Chandra Shukla on January 8 1953
The appellant was a Loco Foreman at Alambagh Loco Shed and Shukla had secured a contract at the same place for the removal of cinders 76 594 from ash pits and for loading coal
This contract had been given to Shukla in June 1952
The prosecution case was that the appellant demanded from Shukla Rs 400 per month in order that Shukla may be allowed to carry out his contract peacefully without any harassment
Shukla was told by the appellant that he had been receiving a monthly payment from Ram Ratan who had held a similar contract before him and that it would be to his interest to agree to pay the bribe
Shukla however refused to accede to this request and that led to many hostile acts on the part of the appellant
On January 3 1953 the appellant again asked Shukla to pay him the monthly bribe as already suggested Shukla then requested him to reduce the demand on the ground that the contract given to him was for a much lesser amount than that which had been given to his predecessor Ram Ratan the appellant thereupon agreed to accept Rs 375
Shukla had no money at the time and so he asked for time to make the necessary arrangement
The agreement then was that Shukla would pay the money to the appellant on January 8 1953
Meanwhile Shukla approached the Deputy Superintendent of Police Corruption Branch and gave him information about the illegal demand made by the appellant
Shukla s statement was then recorded before a magistrate and it was decided to lay a trap
Accordingly a party consisting of Shukla the magistrate the Deputy Superintendent of Police and some other persons went to the Loco Yard
Shukla and Sada Shiv proceeded inside the Yard while the rest of the party stood at the gate
Shukla then met the appellant and informed him that he had brought the money he was told that the appellant would go out to the Yard and accept the money
At about 3 pm the appellant went out to the Yard and after making a round came to the place which was comparatively secluded
He then asked Shukla to pay the money and Shukla gave him a bundle containing the marked currency notes of the value of Rs 375
A signal was then made by Shukla and the raiding party immediately arrived on the scene
The magistrate disclosed his identity to the 595 appellant and asked him to produce the amount paid to him by Shukla
The appellant then took out the currency notes from his pocket and handed them over to the magistrate
It is on these facts that charges under section 161 of the Indian Penal Code and section 52 of the Act were framed against the appellant
The appellant denied the charge
He admitted that he had received Rs 375 from Shukla but his case was that at his request Shukla had advanced the said amount to him by way of loan for meeting the expenses of the clothing of his children who were studying in school
The appellant alleged that since he had been in need of money he had requested Kishan Chand to arrange for a loan of Rs 500 but knowing about his need Shukla offered to advance him the loan and it was as such loan that Shukla paid him Rs 375 and the appellant accepted the said amount
Both the prosecution and the defence led evidence to support their respective versions
The learned special judge who tried the case believed the evidence given by Shukla held that it was sufficiently corroborated and found that the defence story was improbable and untrue
The learned judge also held that on the evidence led before him the presumption under section 4 of the Act had to be raised and that the said presumption had not been rebutted by the evidence led by the defence
Accordingly the learned judge convicted the appellant of both the offences charged and sentenced him to suffer one year s rigorous imprisonment and to pay a fine of Rs 500 under section 161 of the Code and two years  rigorous imprisonment under section 5 of the Act
Both the sentences were ordered to run concurrently
The appellant challenged the correctness and propriety of this order by his appeal before the High Court of Allahabad
The High Court saw no reason to interfere with the order under appeal because it held that on the facts of the case a statutory presumption under section 4 had to be raised and that the said presumption had not been rebutted by the appellant
In other words the High Court did not consider the prosecution evidence apart from the presumption since 596 it placed its decision on the presumption and the failure of the defence to rebut it
In the result the conviction of the appellant was confirmed the sentence passed against him under section 161 was maintained but the sentence under section 52 of the Act was reduced to one year
The sentences thus passed were ordered to run concurrently
It is against this order that the present appeal by special leave has been preferred by the appellant
This appeal has been placed before a Constitution Bench because one of the points which the appellant raises for our decision is that section 41 of the Act which requires a presumption to be raised against an accused person is unconstitutional and ultra vires as it violates the fundamental right guaranteed by article 14 of the Constitution
We would therefore first examine the merits of this point
The Act was passed in 1947 with the object of effectively preventing bribery and corruption
Section 41 provides that where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code 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 the said section 161 or as the case may be without consideration or for a consideration which he knows to be inadequate
Mr Anthony for the appellant contends that this section offends against the fundamental requirement of equality before law or the equal protection of laws
It is difficult to appreciate this argument
The scope and effect of the fundamental right guaranteed by article 14 has been considered by this Court on several occasions as a result of the decisions of this Court it is well estab
lished that article 14 does not forbid reasonable classific ation for the purposes of legislation no doubt it forbids class legislation but if it appears that the 597 impugned legislation is based on a reasonable classification founded on intelligible differentia and that the said differentia have a rational relation to the object Sought to be achieved by it its validity cannot be successfully challenged under article 14 Vide Shri Ram Krishna Dalmia vs Shri Justice section R Tendolkar 1
In the present case there can be no doubt that the basis adopted by the Legislature in classifying one class of public servants who are brought within the mischief of section 41 is a perfectly rational basis
It is based on an intelligible differentia and there can be no difficulty in distinguishing the class of persons covered by the impugned section from other classes of persons who are accused of committing other offences
Legislature presumably realised that experience in courts showed how difficult it is to bring home to the accused persons the charge of bribery evidence which is and can be generally adduced in such cases in support of the charge is apt to be treated as tainted and so it is not very easy to establish the charge of bribery beyond a reasonable doubt
Legislature felt that the evil of corruption amongst public servants posed a serious problem and bad to be effectively rooted out in the interest of clean and efficient administration
That is why the Legislature decided to enact section 41 with a view to require the raising of the statutory presumption as soon as the condition precedent prescribed by it in that behalf is satisfied
The object which the Legislature thus wanted to achieve is the eradication of corruption from amongst public servants and between the said object and the intelligible differentia on which the classification is based there is a rational and direct relation
We have therefore no hesitation in holding that the challenge to the vires of section 41 on the ground that it violates article 14 of the Constitution must fail
Incidentally we may refer  to the decision of this Court in A section Krishna vs The State of Madras 2 in which a similar challenge to the vires of a statutory presumption required to be raised under section 42 of the Madras Prohibition Act 10 of 1937 has been repelled
1  2  598 That takes us to the question of construing section 41
When does the statutory presumption fall to be raised and what is the content of the said presumption Mr Anthony contends that the statutory presumpion cannot be raised merely on proof of the fact that the appellant had received Rs 375 from Shukla in order to justify the raising of the statutory presumption it must also be shown by the prosecution that the amount was paid and accepted as by way of bribe
This argument involves the construction of the words  any gratification other than legal remuneration  used in section 41
It is also urged by Mr Anthony that even if the statutory presumption is raised against the appellant in deciding the question as to whether the contrary is proved within the meaning of section 41 it must be borne in mind that the onus of proof on the appellant is not as heavy as it is on the prosecution in a criminal trial
Let us first consider when the presumption can be raised under section 41
In dealing with this question it may be relevant to remember that the presumption is drawn in the light of the provisions of section 161 of the Indian Penal Code
In substance the said section provides inter alia that if a public servant accepts any gratification whatever other than legal remuneration as a motive or reward for doing or forbearing to do any official act he is guilty of accepting illegal gratification
Section 41 requires the presumption to be raised whenever it is proved that an accused person has accepted  any illegal gratification other than legal remuneration or any valuable thing
 This clause does not include the receipt of trivial gratification or thing which is covered by the exception prescribed by sub section
The argument is that in prescribing the condition precedent for raising a presumption the Legislature has advisedly used the word  gratification  and not money or gift or other consideration
In this connection reliance has been placed on the corresponding provision contained in section 2 of the English Prevention of Corruption Act 1916 6 Geo 5 c 64 which uses the words any money gift or other consideration 
The use of the 599 word gratification emphasises that it is not the receipt of any money which justifies the raising of the presumption something more than the mere receipt of money has to be proved
It must be proved that the money was received by way of bribe
This contention no doubt is supported by the decision of the Rajasthan High Court in The State vs Abhey Singh 1 as well as the decision of the Bombay High Court in the State vs Pandurang Laxman Parab 2
On the other hand Mr Mathur for the State argues that the word  gratification  should be construed in its literal dictionary meaning and as such it means satisfaction of appetite or desire that is to say the presumption can be raised whenever it is shown that the accused has received satisfaction either of his desire or appetite
No doubt it is conceded by now that in most of the cases it would be the payment of money which would cause gratification to the accused but he contests the suggestion that the word  gratification  must be confined only to the payment of money coupled with the right that the money should have been paid by way of a bribe
This view has been accepted by the Bombay High Court in a subsequent decision in State vs Pundlik Bhikaji Ahire 3 and by the Allahabad High Court in Promod Chander Shekhar vs Rex 4
Paragraph 3 of section 161 of the Code provides that the word  gratification  is not restricted to pecuniary gratification or to gratifications estimable in money
Therefore  gratification  mentioned in section 41 cannot be confined only to payment of money
What the prosecution has to prove before asking the court to raise a presumption against an accused person is that the accused person has received a  gratification other than legal remuneration  if it is shown as in the present case it has been shown that the accused received the stated amount and that the said amount was not legal remuneration then the condition prescribed by the section is satisfied
In the context of the remuneration legally payable to and receivable by a 1 AIR 2 xi
3 4 ILR 1950 All
600 public servant there is no difficulty in holding that where money is shown to have been paid to and accepted by such public servant and that the said money does not constitute his legal remuneration the presumption has to be raised as required by the section
If the word  gratification  is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the raising of the presumption
Technically it may no doubt be suggested that the object which the statutory presumption serves on this construction is that the court may then presume that the money was paid by way of a bribe as a motive or reward as required by section 161 of the Code
In our opinion this could not have been the intention of the Legislature in prescribing the statutory presumption under section 41
In the context we see no justification for not giving the word  gratification  its literal dictionary meaning
There is another consideration which supports this construction
The presumption has also to be raised when it is shown that the accused person has received any valuable thing
This clause has reference to the offence punishable under section 165 of the Code and there
is no doubt that one of the essential ingredients of the said offence is that the valuable thing should have been received by the accused without consideration or for a consideration which he knows to be inadequate
It cannot be suggested that the relevant clause in section 41 which deals with the acceptance of any valuable thing should be interpreted to impose upon the prosecution an obligation to prove not only that the valuable thing has been received by the accused but that it has been received by him without consideration or for a consideration which he knows to be inadequate
The plain meaning of this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused without anything more
If that is the true position in respect of the construction of this part of section 41 it would be unreasonable to hold that the word  gratification  in the same clause imports the necessity to prove not only the payment 601 of money but the incriminating character of the said payment
It is true that the Legislature might have used the word  money  or  consideration  as has been done by the relevant section of the English statute but if the dictionary meaning of the word  gratification  fits in with the scheme of the section and leads to the same result as the meaning of the word  valuable thing  mentioned in the same clause we see no justification for adding any clause to qualify the word  gratification the view for which the appellant contends in effect amounts to adding a qualifying clause to describe gratification
We would accordingly hold that in the present appeal the High Court was justified in raising the presumption against the appellant because it is admitted by him that he received Rs 375 from Shukla and that the amount thus received by him was other than legal remuneration
What then is the content of the presumption which is raised against the appellant  Mr Anthony argues that in a criminal case the onus of proof which the accused is called upon to discharge can never be as heavy as that of the prosecution and that the High Court should have accepted the explanation given by the appellant because it is a reasonably probable explanation
He contends that the test which can be legitimately applied in deciding whether or not the defence explanation should be accepted cannot be as rigorous as can be and must be applied in deciding the merits of the prosecution case
This question has been considered by courts in India and in England on several occasions
We may briefly indicate some of the relevant decisions on this point
In Otto George Gfeller vs The King1 the Privy Council was dealing with the case where the prosecution had established that the accused were in possession of goods recently stolen and the point which arose for decision was how the explanation given by the accused about his possession of the said goods would or should be considered by the jury
In that connection Sir George Rankin observed that the appellant did not 1 AIR 1943 PC 211 77 602 have to prove his story but if his story broke down the jury might convict
In other words the jury might think that the explanation given was one which could not be reasonably true attributing a reticence or an incuriosity or a guilelessness to him beyond anything that could fairly be supposed
The same view was taken in Rex vs Carr Briant 1 where it has been observed that in any case where either by statute or at common law some matter is presumed against an accused  unless the contrary is proved the jury should be directed that it is for them to decide whether the contrary is proved that the burden of proof required is less than that required at the bands of the prosecution in proving the case beyond a reasonable doubt and that the burden may be discharged by evidence satisfying the jury of the probability of that which the accused is called upon to establish  p 612
In other words the effect of these observations appears to be to relax to some extent the rigour of the elementary proposition that in civil cases the preponderance of probability may constitute sufficient ground for a verdict  p 611Also vide Regina vs Dunbar 2
It is on the strength of these decisions that Mr Anthony contends that in deciding whether the contrary has been proved or not under section 41 the High Court should not have applied the same test as has to be applied in dealing with the prosecution case
The High Court should have inquired not whether the explanation given by the appellant is wholly satisfactory but whether it is a reasonably possible explanation or not
On behalf of the State it is urged by Mr Mathur that in construing the effect of the clause  unless the contrary is proved  we must necessarily refer to the definition of the word  proved  prescribed by section 3 of the Evidence Act
A fact is said to be proved when after considering the matter before it the Court either believes it to exist or considers its existence so probable that a prudent man ought under the circumstances of the particular case to act on the supposition that it exists
He has also relied on section 4 which provides that whenever it is directed that the 1 2 at p 11
603 court shall presume a fact it shall record such fact as proved unless and until it is disproved
The argument is that there is not much room for relaxing the onus of proof where the accused is called upon to prove the contrary under section 41
We do not think it necessary to decide this point in the present appeal
We are prepared to assume in favour of the appellant that even if the explanation given by him is a reasonably probable one the presumption raised against him can be said to be rebutted
But is the explanation
given by him reasonably probable  That is the question which must now be considered
What is his explanation  He admits that he received Rs 375 from Shukla but urges that Shukla gave him this amount as a loan in order to enable him to meet the expenses of the clothes for his school going children
In support of this the appellant gave evidence himself and examined other witnesses Kishan Chand and Ram Ratan being the principal ones amongst them
The High Court has examined this evidence and has disbelieved it
It has found that Kishan Chand is an interested witness and that the story deposed to by him is highly improbable
Apart from this conclusion reached by the High Court on appreciating oral evidence adduced in support of the defence plea the High Court has also examined the probabilities in the case
It has found that at the material time the appellant was in possession of a bank balance of Rs 1600 and that his salary was about Rs 600 per month
Besides his children for whose clothing he claims to have borrowed money had to go to school in March and there was no immediate pressure for preparing their clothes
The appellant sought to overcome this infirmity in his explanation by suggesting that he wanted to reserve his bank balance for the purpose of his daughter s marriage which he was intending to perform in the near future
The High Court was not impressed by this story and so it thought that the purpose for which the amount was alleged to have been borrowed could not be a true purpose
Besides the High Court has also considered whether it would have been probable that Shukla 604 should have advanced money to the appellant
Having regard to the relations between the appellant and Shukla it was held by the High Court that it was extremely unlikely that Shukla would have offered to advance any loan to the appellant
It is on a consideration of these facts that the High Court came to the conclusion that the explanation given by the accused was improbable and palpably unreasonable
It is true that in considering the explanation given by the appellant the High Court has incidentally referred to the statement made by him on January 8 1953 before the magistrate and Mr Anthony has strongly objected to this part of the judgment
It is urged that the statement made by the appellant before the magistrate after the investigation into the offence had commenced is inadmissible
We are prepared to assume that this criticism is wellfounded and that the appellant s statement in question should not have been taken into account in considering the probability of his explanation but in our opinion the judgment of the High Court shows that not much importance was attached to this statement and that the final conclusion of the High Court was substantially based on its appreciation of the oral evidence led by the defence and on considerations of probability to which we have already referred
Therefore we are satisfied that the High Court was right in discarding the explanation given by the appellant as wholly unsatisfactory and unreasonable
That being so it is really not necessary in the present appeal to decide the question about the nature of the onus of proof cast upon the accused by section 41 after the statutory presumption is raised against him
In the result the appeal fails the order of conviction and sentence passed against the appellant is confirmed and his bail bond cancelled
Appeal dismissed


Summary:
The appellant who was working as a Loco Foreman was found to have accepted a sum of Rs 375 from a Railway Contractor
The appellant s explanation was that he had borrowed the amount as he was in need of money for meeting the expenses of the clothing of his children who were studying in school The Special judge accepted the evidence of the contractor and held that the money had been taken as a bribe that the defence story was improbable and untrue that the presumption under section 4 Of the Prevention of Corruption Act had to be raised and that the presumption had not been rebutted by the appellant and accordingly convicted him under section 161 Indian Penal Code and section 5 Of the Prevention of Corruption Act 1947
On appeal the High Court held that on the facts of the case the statutory presumption under section 4 had to be raised that the explanation offered by the appellant was improbable and palpably unreasonable and that the presumption had not been rebutted and upheld the conviction
The appellant contended i that section 4 was ultra vires as it contravened article 14 of the Constitution ii that the presumption under section 4 could not be raised merely on proof of acceptance of money but it had further to be proved that the money was accepted as a bribe iii and that even if the presumption arose it was rebutted when the appellant offered a reasonably probable explanation
Held that section 4 of the Prevention of Corruption Act did not violate article 14 Of the Constitution
The classification of public servants who were brought within the mischief of section 4 was based on intelligible differentia which had a rational relation to the object of the Act viz eradicating bribery and corruption amongst public servants
Ram Krishna Dalmia vs Shri justice section R Tendolkar   followed
A section Krishna vs The State of Madras   referred to
The presumption under section 4 arose when it was shown that the accused had received the stated amount and that the said amount was not legal remuneration
The word  gratification  593 in section 41 was to be given its literal dictionary meaning of satisfaction of appetite or desire  it could not be construed to mean money paid by way of a bribe
The High Court was justified in raising the presumption against the appellant as it was admitted that he had received the money from the contractor and the amount received was other than legal remuneration
State vs Pundlik Bhikaji Ahire and Promod Chander Shekhar vs Rex ILR 1950 All 382 approved
The State vs Abhey singh AIR 1957 Raj
138 and State vs Pandurang Laxman Parab  disapproved
Even if it be assumed that the presumption arising under section 41 could be rebutted by the accused giving an explanation which was a reasonably probable one the High Court was right in holding that the explanation given by the appellant was wholly unsatisfactory and unreasonable
Otto George Gfeller vs The King AIR 1943 PC 211 and Rex vs Cary Briant 1943 I KB 607 referred to