SAYYED SHABIRALLI HAFIZALIversusSTATE OF MAHARASHTRA

                      [2009] 7 S.C.R. 615


                SAYYED SHABIRALLI HAFIZALI                        A
                               v
                 STATE OF MAHARASHTRA
              Criminal Appeal No. 1053 of 2005

                         MAY 04, 2009
                                                                  B
[DR. ARIJIT PASAYAT, HARJIT SINGH BEDI AND ASOK
               KUMAR GANGULY, JJ.]
      Prevention of Corruption Act, 1947-ss. 4 and 5(1)(d) rlw
5(2) - Application made to State Electricity Board office for
installation and connection of electric motor - Pursuant to C
deposit of necessary charges, certain materials were required
to be taken from the Electricity Board office and for that purpose
a gate pass was required by the complainant - Appellant, a
Sub-Engineer in the Electricity Board office, allegedly
demanded illegal gratification for issuing such gate pass - D
Bribe allegedly received at the shop of complainant -
Conviction of appellant, by trial court - Upheld by High Court
- Justification of - Held: Qn facts, justified - Gratification
received was not trivial - The evidence on record clearly
established the accusations.                                       E

      State of Assam v. Krishna Rao and Ors. AIR (1973) SC
·2a - referred to.
                     Case Law Reference
                                                                  F
      AIR (1973) SC 28          referred to       Para 7
     CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 1053 of 2005

     From the Judgement and Order dated 07.02.2005 of the         G
Hon'ble High Court of Bombay, Bench at Aurangabad in
Criminal Appeal No. 193 of 1992
      U.B. Dubey (for Kuldip Singh), for the Appellant.

                              615                                 H
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A         Aniruddha P. Mayee (NP), for the Respondent.
          The Judgement of the Court was delivered by
          DR. ARIJIT PASAYAT, J.

       1. Challenge in this appeal is to the judgment of a learned
B Single of the Bombay High Court, Aurangabad Bench upholding
  the conviction of the appellant for offence punishable under
  Section 5(1 )(d) read with Section 5(2) of the Prevention of           .,.
  Corruption Act, 1947 (in short the 'Act'). The learned Special
  Judge, Ahmednagar, had found the accused-appellant guilty and
C convicted him as aforenoted and to suffer imprisonment for one
  year and to pay a fine of Rs.1,000/- with default stipulation.
          2. Background facts in a nutshell are as follows:
          The complainant Mhatardeo Dagadu Dahale, resident of
D   Dule (Chandgaon) was running a tailoring shop by name
    'Surekha Ladies Tailors' at Pathardi. The land bearing S.No.92/
    1 situated at village Dule (Chandgaon) was owned by
    complainant's father. He wanted to install electric pump set on
    the well situated in the said land. For that purpose, he had made
E   an application to the office of Maharashtra State Electricity
    Board (in short 'M.S.E.B.'), Pathardi. However, the M.S.E.B.
    did not take any cognizance of the said application.
    Complainant's father, therefore, submitted another application
    in the year 1980. Thereafter survey of the land and in particular
F   the place where the electric motor was to be installed was carried
    out and the complainant was asked to carryout the preliminary
    requirements and to submit the test report. Accordingly, the
    complainant had submitted the test report on 12.11.1986. As
    tbe complainant's father was of old age, complainant was in
G   fact attending all the work in connection with the agriculture
    operations and allied work. As per the Rules of the M.S.E.B., it
    was necessary for the complainant to deposit certain charges.
    for receiving the material required for the installation and
    connection of the electric motor. The complainant, therefore,
H   deposited Rs.610/- in A.D.C.C. Bank. Ahmednagar on
                    SAYYED SHABIRALLI HAFIZALI V.                 617
             STATE OF MAHARASHTRA [DR ARIJIT PASAYAT J]

        26.12.1984. In spite of such compliance on the part of the A
        complainant and his father, the M.S.E.B. had not provided the
        necessary material and connection. For getting the material
        released from the M.S.E.B. store, it was necessary to issue
        gate pass. For that purpose, the complainant had met the
        accused, who was then working as Sub-Engineer in the office B
        of M.S.E.B., Rural Sub Division, Pathardi and the accused had
        told him that he would be sending one,Channe, Wireman .
      . However, nobody turned up till 19.11.1986. Hence, the
        complainant contracted the accused on that day. However, even
        on that day, the gate pass was not issued in favour of the c
        complainant. On 26.11.1986, the accused went to the shop of
        the complainant and told him that he would issue the gate pass,
        but for that purpose, the complainant will have to pay Rs.100/-
        to the accused. The complainant told him that he had not that
        much amount to pay at that time and that he would collect the D
...     amount and give him within a short period. Thereafter on
        02.12.1986, the complainant went to the house of the accused
        at about 9.00 to 9.30 p.m., at that time also, the accused told
        him that on the next day, while going to his house for meals from
        the office, he would hand over the gate pass to him and that he
        should pay him Rs.100/- at that time. The complainant thereafter E
       went to the office of Anti Corruption Bureau atAhmednagar and
        narrated the entire incident to Mr. Joshi, Deputy Superintendent
        of Anti Corruption Bureau and lodged a complaint wherein he
        specifically stated that the accused demanded bribe of Rs.100/
        - for issuing gate pass in favour of the complainant and that he F
       would come to his shop the next day in the afternoon to collect
        the amount and to hand over the gate pass. The complainant
       was, therefore, asked to come to theAnti Corruption Bureau on
       the next day. Accordingly, the complainant went to the said office
        on the next day. At that time, the police called two panchas by G
        names Vavhal and Godbole. The search of the complainant was
       taken in the presence of panchas and at that time, complainant
        handed over an amount of Rs.100/- to which police applied
        anthracene powder and gave necessary instructions to the
        complainant as well as to the panchas. Except that amount of H
    618       SUPREME COURT REPORTS                    [2009] 7 S.C.R.


A   Rs.100/- and another sum of Rs.18/-, nothing was kept on the
    person of the complainant. Then the police, panchas and
    complainant proceeded in a Jeep to Pathardi. They halted the
    Jeep at a distance of about 1 km. from the complainant's shop
    and then pancha witness Vavhal and complainant went to his
B   shop. They waited there till about 3/3.30 p.m. However, the ·
    accused did not turn up. They, therefore, informed this fact to
    Deputy Superintendent of Anti Corruption Bureau, Mr. Joshi. With
    his permission, the complainant and the pancha witness Vavhal
    then went to the office of M.S.E.B., Pathardi to find out as to
C   whether the accused was there. However, the accused was not
    found there but they were informed that accused would be
    coming within 15/20 minutes. Hence, both of them sat on the
    'Ota', which was in front of the said office. At about 5.30 p.m.,
    complainant's father went to that place and informed the
D   complainant that Sayyedsaheb i.e. the accused has come to
    his shop. The complainant and pancha witness Vivhal therefore
    went to the shop of the complainant. The accused was sitting in
    the complainant's shop. After reaching there, complainant asked
    the accused, whether he has done his work. The accused
    answered in the affirmative and asked the complainant as to
E   what about him. On that, the complainant answered in the
    affirmative. Then the accused took out a folded chit, which is
    proved to be the gate pass, (Exhibit-21) and handed over the
    same to the complainant. Complainant took out the marked
    currency note of Rs.50, two currency notes of Rs.20/- and one
F   currency note of Rs.10, in all Rs.100/- to which anthracene
    powder was applied, and gave them to the accused. The
    accused put the said amount in the pocket of his Manila. The
    complainant put Ext.21 in the pocket of the Manila in which initially
    he had kept the marked currency notes. The complainant then
G   immediately went out of the shop and gave signal. Thereupon
    the police constables and Deputy Superintendent Mr. Joshi
    entered the shop. The police Constables held the hands of the
    accused and Deputy Superintendent Mr. Joshi asked the
    accused as to where the bribe amount was. Thereupon, the
H   accused handed over the amount of Rs.100/- put by him in his
                              SAYYED SHABIRALLI HAFIZALI V.                     619
                       STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J]
           ...
                 pocket. Police then carried out the post-trap panchanama in           A
                 which it was noted that the numbers of the marked currency
                 notes mentioned in the pre-trap panchanama and post-trap
                 panchanama were the same. Besides this, anthracene powder
                 was noticed at the fingertips of the accused so also at some
                 portion of the Manila of the accused. The police also attached        B
                 the gate pass, Exhibit-21. The copy of the panchanama was
                 handed over to the accused and accused signed the same for
            ~
                 having received the copy. Thereafter, Mr. Joshi, Deputy
                 Superintendent recorded the statements of complainant and
                 some other witnesses and after obtaining necessary sanction           c
                 for prosecution and on completing the investigation submitted
                 charge sheet against the accused in the Court of Special Judge,
                 Ahmednagar.

                      As the accused pleaded innocence, trial was held. Four
                 witnesses were examined including the complainant, panch              D
      ~.

                 witness, Assistant Engineer and Deputy Superintendent of
                 Police, Anti Corruption Bureau. The accused examined his wife
                 as a defence witness. His stand was that his wife had given
                 clothes for stitching to the complainant and he had gone to his
                 shop to collect the money for the lost cloth. After considering the   E
                 evidence, the trial Court concluded that the prosecution has fully
                 established the demand of bribe. An appeal was preferred
                 before the Bombay High Court.

                       Stand of the accused before the High Court was that since
                 money was not given by the complainant to the accused in the F
                 office but at the shop of the complainant, it proves that the
                 defence version is correct. The High Court noted that admittedly
                 the complainant was running a tailoring shop and complainant's
                 father had submitted an application for getting electricity
""'              connection. The necessary test report was filed on 12.11.1986 G
      -I         and the necessary charges had been deposited on 26.12.1984
                 but the necessary gate pass was not given. The complainant's
                 version that as regards demand of bribe was not shaken or
                 shattered in cross examination the same was fully corroborated
                 by the complaint filed on 2. 12.1986. The evidence of Deputy H
    620       SUPREME COURT REPORTS                   [2009] 7 S.C.R.


A   Superintendent of Police, Anti Corruption Bureau fully
    established the same as the High Court noted that the sanction
    order, pre trap panchnama of the place of offence and gate passi
    were produced.

         Referring to Section 4 of the Act the High Court held that
B   the prosecution version was established and, therefore, there
    was no merit in the appeal.

         3. Learned counsel for the appellant submitted that the
    defence version was more probable.
c         This is a case where the complainant had not gone to the
    office of the accused to hand over the money but the accused
    had gone at the shop of the complainant, this itself creates a
    doubt about the version of the prosecution.
         4. Learned counsel forthe respondent-State supported the
D
    judgment.                                                            ...
        5. It is of significance that in the complaint dated 2.12.1986
  the complainant had specifically stated that the accused shall
  be coming for handing over the gate pass and for taking the
E money i.e. bribe amount on 3.12.1986 in the afternoon.
  Therefore, as rightly noted by the High Court if really the
  complainant had issued any receipt or chit in respect of the cloth
  and had told the accused to bring that chit or receipt, it is only
  after obtaining the said chit he would pay amount of Rs.100/-.
F Then   he would not have lodged the complaint because at that
  time he had no idea as to what to do in the situation on
  3.12.1986. Admittedly, when the post trap panchnama was
  drawn the accused was present there. So also the panch witness
  Sayajirao was present. After drawing the panchnama a copy of
G
  the same was immediately given to the accused. Not only that,
  he made endorsement on the original panchnama for having
                                                                           ~
                                                                               ...
  received a copy. If really the accused had handed over the receipt
  of the cloth to the complainant and accepted Rs.100/- as a price
  of the lost cloth, he would have told panchas as well as to the
  police that that the receipt has been handed over to him and the
H
                    SAYYED SHABIRALLI HAFIZALI V                     621
             STATE OF MAHARASHTRA [DR. ARIJIT PASAYAT, J]

        said fact be mentioned in the panchanama but this has not           A
        happened. There was no mention about the accused having
        stated to have brought the chit of the cloth.
            6. Section 4 of the Act reads as follows:
            "Section 4. Presumption where public servant accepts            B
            gratification other than legal remuneration -

            (1) Where in any trial of an offence punishable under
            Section 161 or section 165 of the Indian Penal Code, or
            of an offence referred to in clause (a) or clause (b) of sub-
            sec. (1) of S.5 of this Act, punishable under sub-section       c
            (2) thereof, 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
                                                                            D

            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              E
            consideration which he knows to be inadequate.

             (2) Where in any trail of an offence punishable under
    1        Section 165A of the Indian Penal Code or under clause
             (ii) sub-section (3) of Section 5 of this Act, it is proved that
             any gratification or any valuable thing has been given or F
             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 161 G
,.(          of the Indian Penal Code or, as the case may be, without
             consideration or for a consideration which he knows to be
             inadequate.
             (3) Notwithstanding anything contained in subsection (1)
                                                                            H.
    622        SUPREME COURT REPORTS                     [2009] 7 S.C.R


A         and (2), the Court may decline to draw the presumption
          referred to in either of the said sub-section, if the
          gratification or thing, aforesaid is, in its opinion, so trivial
          that no inference or corruption may fairly be drawn."
      7. In State of Assam v. Krishna Rao and Ors. (AIR 1973
B SC 28) it was observed as follows:
          "Where it is proved that a gratification has been accepted
          the presumption under Section 4 of the Prevention of
          Corruption Act shall at once arise, it is a presumption of
c         law and it is obligatory on the Court to raise it in every
          case brought under Section 4. The words, "unless the
          contrary is proved" mean that the presumption raised by
          Section 4 has to be rebutted by proof and not by bare
          explanation which may be merely plausible. The required
          proof need not be such as is expected for sustaining a
D
          criminal conviction, it needs only to establish a high degree
          of probability."
        8. The evidence on record has clearly established the
  accusations and the trial Court and the High Court have rightly
E relied on the same.
         9. In the instant case the occurrence took place on
    December 2, 1986. At that point of time it cannot be said that
    the gratification was a trivial thing as referred to under Section
    4.
F
         10. Above being the position, there is no merit in this appeal
    which is accordingly dismissed.
                                                                             •

    B.B.B.                                         Appeal dismissed.