HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE (DIVISION BENCH : HON. Mr. JUSTICE S.K.SETH AND Mr. JUSTICE M.C.GARG) CRIMINAL APPEAL NO. 52 of 2005 State of M.P. Special Police establishment, Lokayukt, Ujjain. ......Appellant Vs. Satyanarayan Mehta S/o Ramchandra Mehta, Occupation Service R/o 136 Sethi Nagar Ujjain.(M.P.) .....Respondent JUDGMENT ( Delivered on 11 th November 2011 ) Per Seth, J:- Respondent was tried under Section 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”) by the Special Judge, Ujjain in S.T. No. 10 of 2003. He was acquitted of the charges by the impugned judgment against which State has preferred this appeal. 2. The prosecution, in brief, is that while working as internal auditor co-operative societies, respondent demanded an amount of Rs. 2000/- as illegal gratification from Amin Khan (P.W.3). The alleged demand pertained to the financial year 1998-99 when Shri Khan was working as a Branch Manager, Sewa Sahkari Sanstha Maryadit Tutiakhedi, Nagda in Ujjain District. According to Shri Khan, after alleged payment of Rs. 1500/-, he did not want to pay the bribe therefore, he lodged a written complaint to Lok- 1 Ayukt Ujjain vide Ex. P-23. On the basis whereof a trap was laid. After completing investigation, charge sheet was filed against the respondent for his prosecution. 3. Learned trial Court considering the evidence came to conclusion that no offence was made out against respondent. Consequently the respondent was acquitted of the charges. After obtaining leave, this appeal is directed against the acquittal of the respondent as stated above. 4. After having heard learned senior counsel for appellant at length, we have scrutinized record and the judgment to find out whether respondent committed a criminal misconduct and thereby rendered himself liable to punishment? 5. The prosecution case is that while working as an internal auditor, the respondent is stated to have demanded and accepted an illegal gratification from Amin Khan (P.W.3). 6. In the case in hand, it is not necessary to discuss the entire prosecution evidence which has already been done by the trial Court. The edifice of the prosecution case is based on the evidence of Amin Khan (P.W.3). Learned trial court came to conclusion that his evidence does not stand the judicial scrutiny to bring home the charges leveled against the respondent. His evidence shows that before taking voluntary retirement, witness was working as Branch Manager, Sewa Sahkari Sanstha Maryadit 2 Tutiakhedi, Nagda in Ujjain District. Respondent carried out internal audit and submitted the report; in the audit report certain financial irregularities and defalcation were noticed; on the said report legal action was initiated against Amin Khan wherein respondent was material witness; this had happened before Amin Khan lodged the complaint on the basis of so called copy of the audit report said to have been furnished to the complainant before he lodged the complaint with the Lok-Ayukt Ujjain against respondent knowing fully well that no subsequent changes were possible in the audit report once it was submitted; the audit was carried out after voluntary retirement of Amin Khan (P.W.3); previously amount of (Rs. 1500/-) as illegal gratification was paid without protest but Amin Khan (P.W.3) decided to make the written complaint (Ex.P.23) only before payment of balance amount (Rs.500/-) and that too, when witness knew that no change was possible in the audit report. We find that the trial court rightly held and it seems to us on perfectly goods grounds that the complainant's story cannot be accepted as true. 7. The story which the complainant told in this respect is true or false can be determined only on a proper examination of the evidence that the prosecution has adduced on the point. Having regard to the actual facts of this case, there could be no occasion at all for demand of bribe by the respondent. It seems to be a tall claim which does not have the virtue of infallibility. The trial Court, who had the complainant before him, came to the definite conclusion that he was 3 speaking untruth from the beginning to end and from the materials on the record we are unable to say that this estimate of the trial court was in any way improper. In order to establish charge of criminal misconduct under Section 13(i)(d) R/w 13(2) of the Act, the prosecution must allege and prove (1) that the accused at the time of the offence was or expected to be a public servant; (2) that he accepted or retained or agreed to accept or attempted to obtain from some person a gratification; (3) that such gratification was not a legal remuneration due to him; (4) that he accepted such gratification as a motive or reward for (a) doing or forebearing to do an official act; or (b) showing or forebearing to show favour or disfavour to someone in exercise of his official function; (c) rendering or attempting to render any service or disservice to someone, with the legislative or executive Government, or any public servant. 8. No doubt, Section 20 of the Act deals with the burden of proof and onus. This Section lays down a special rule of evidence. The presumption is one of law and thereunder a court shall presume, inter alia, that what was paid amounted to gratification and accepted as a motive or reward for doing or forebearing to do any official act. The presumption to be drawn under Section 20 of the Act is not inviolable. The question is, how the burden can be discharged? The rules of evidence pertaining to burden of proof are embodied in Chapter 7 of the Evidence Act. The phrase “burden of proof” has two meanings — one the burden of proof as a matter of law and pleading and the other the 4 burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence i.e., oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence or presumptions of law or fact. 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. “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 to prove 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(1) of 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 a verdict of guilty. 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 is shifted to the prosecution which still has to discharge its original onus that 5 never shifts i.e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.” (See V.D. Jhingan v. State of U.P.1966 (3) SCR 736.) 9. It cannot be disputed that when hearing an appeal against an order of acquittal we have full powers to review and reassess the evidence on the record and reach our own conclusions upon the estimate of the evidence. But, as was laid down by the Privy Council in - 'Sheo Swarup v. Emperor', AIR 1934 PC 227 and reiterated by the Supreme Court in Narayan Ittiravi v. State of Trav.- AIR 1953 SC 478, in exercising these powers the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial court as to the credibility of witnesses', (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of the appellate court in disturbing the finding of fact arrived at by a judge who had the advantage of seeing the witnesses. 10. It is against this background of principles we find no merit and substance in the appeal. Accordingly, the appeal stands dismissed. ( S.K.SETH.) ( M.C.GARG ) JUDGE. JUDGE. BDJ 6