UNION OF INDIA THROUGH INSPECTOR, CBIversusPURNANDU BISWAS

            UNION OF INDIA THROUGH INSPECTOR, CBI                                A
                                      V.

                           PURNANDU BISWAS

                            OCTOBER 7, 2005

               [S.B. SINHA AND R.V. RAVEENDRAN, JJ.]                             B


      Prevention of Corruption Act, I 988:

        Section I 3(J)(d) read with Section I 3(2)-lllegal gratification-
 Presumption under-Accused, a Surveyor in Mercantile Marine Department           C
 of Government of India at a Seaport, demanded a certain sum as illegal
 gratification from a subagent for clearance of a merchant vessel-Accused
 made inspection of the said vessel and found certain defects, which were
 rectified by the Master of the vessel-The vessel was subsequently released-
 However, demand of gratification continued on the premise that unless the       D
 amount was paid other vessels of the subagent would be detained-
 Subsequently, complaint was made to CBI and a trap was arranged-Accused
 accepted currency notes which were kept by him in a suitcase-Trial court
 convicted accused-But High Court acquitted him-Correctness of-Held: ft
 is wholly unlikely that the accused would keep a suitcase ready for keeping
the currency notes-The Inspector searched the house of the accused without       E
 a warrant which showed overzealousness-Moreover, the subagent bore a
 grudge against the accused-A material document which was in favour of the
 accused not annexed to the charge sheet-Presumption under S. 20 not attracted
 as the accused was charged under S. I 3(1)(d) dw S. I 3(2)-Hence, acquittal
justified.                                                                       F
      The respondent was working as a Surveyor in the Mercantile Marine
Department of Government of India at a Seaport. While on duty the
respondent demanded a sum of Rs. 50,000 by way of illegal gratification
from PW-3 who was a subagent for giving clearance certificate in respect
of a merchant vessel. An inspection of the said vessel was made by the           G
respondent and certain defects were found which having been rectified
by the Master, it was released. However, the demand of gratification
continued on the premise that unless the amount was paid other vessels
of the said subagent would be detained.

                                     181                                         H
    182                      SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A         Subsequently, a complaint was made to the CBI and a trap was
    arranged. PW-4 told the respondent that he had brought the amount as
    per request and also gave his visiting card and requested for his
    cooperation. The respondent kept the currency notes in a suitcase. PW-8
    compared the number of the currency notes and seized the same. The
B   suitcase was not put to the chemic11l test.

         The trial court convicted the respondent under Section 13(1 )( d) read
    with Section 13(2) of the Prevention of Corruption Act, 1988. However,
    the High Court acquitted the respondent. Hence the appeal.

          On behalf of the respondent-accused, it was contended that PW-3,
C admittedly, bore a grudge against the respondent for his purported
    demand of money, and that the prosecution had suppressed a material
    document which was in favour of the respondent.

          Dismissing the appeal, the Court

D          HELD: 1. The charge framed against the respondent in terms of
    Section 211 of the Code of Criminal Procedure, 1973 was that while on
    duty on 15.7.1992, he demanded a sum of Rs. 50,000 as illegal gratification
    from PW-3, the subagent, for giving clearance certificate for the merchant
    vessel and pursuant to the said demand, he was offered the said amount
E   which he accepted on 17.7.1992 as a motive or reward for issuing clearance
    certificate for the said vessel. No charge was framed against the respondent
    that he continued with his demand despite releasing the said vessel stating
    that if, the said amount is not paid, he would detain another vessel of which
    PW-3 was the subagent. It is not disputed that the respondent had the
    authority to make inspection of the said vessel at the seaport. It is further
F   not in dispute that when defects in the vessel were pointed out the Master
    thereof was required to remove the same. The surveyor is merely
    concerned with the inspection of the vessel whereupon he may point out
    certain defects. Only when such defects are rectified the vessel is released.
    All the materials on record including the documents which were seized
G   on 17.7.1992 disclose that the defects were pointed out to the Master of
    the vessel and the same having been rectified, it was allowed to leave the
    harbour on 16.7.1992. The prosecution case, as disclosed by PW-3, was
    that on his request the same was done, as he had stated that a sum of Rs.
    50,000 would be paid by him failing which he may retain another vessel
    of which he was the agent, was not the subject matter of the charge. It
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           UNION OF INDIA THROUGH INSPECTOR_ cm v. PURNANDU IlISWAS      183

·· appears that the suggestion was made by PW-3 himself. There was no           A
   demand to that effect by the respondent. PW-3 further disclosed that the
   said vessel was already anchored outside the port. In the complaint to the
   CBI made by PW-2 on 16.7.1992, it is stated that PW-4 himself suggested
   on 15.7.1992 that another vessel may be retained by the respondent ifthe
   aforementioned sum of Rs. 50,000 was not paid. Such a charge was not         B
   framed. [190-G, H; 191-A, B, C, D, El

       2.1. Furthermore, the harbour master in his deposition stated that
 the other vessel of which PW-3 was the subagent was anchored on
 16.7.1992 at 1 p.m .. and brought inside the harbour on 19.7.1992 at 5.30
 p.m. The said vessel left the port on 19.7.1992 at 6.45 p.m. Thus, evidently   C
 the statements of PW-3 were not correct. A trap was laid by the CBI on
 17.7.1992 i.e. much prior to bringing of the said vessel in the harbour on
 19.7.1992. Furthermore, having regard to the fact that the said vessel was
 anchored only at 1 p.m. on 16.7.1992, it cannot be believed that PW-3 could
 have said on the evening of 15. 7.1992 or even in the morning of 16. 7.1992
 that the vessel was already anchored outside the port. (191-E, Fl              D
       2.2. PW-3 did not say that the accused threatened that he would
 retain another vessel of which he was the agent, if the said sum of Rs.
 50,000 was not paid. [191-Gl

       3. It is furthermore not in dispute that PW-3 had been asked by PW-      E
 8 to carry the money in a bag. On a conjoint reading of the deposition of
 PWs 3, 4 and 8, it would appear that the money was kept in a handbag
 with a zip in a room in the hotel. The same was to be delivered by PW-
 3 only when the accused would demand the same. PWs 3 and 4 did not
 say that any demand was made by the respondent at that stage. The              F
 evidence brought on record shows that PW-3 took the handbag with the
 money inside the house of the accused and handed over the same but the
 same was retained by PW-3. The said handbag was not seized. PW-3
 categorically stated that he kept the handbag in his car. Why the handbag
 was not seized or subjected to phenolphthalein test is beyond one's
 comprehension. PWs 3 and 4 furthermore do not suggest that even any            G
 demand was made by the respondent when they went inside his house on
 17.7.1992. PW-4 allegedly told the accused "not to stop the vessel" and
 that "we will abide by your conditions", to which the accused replied "yes
 I will look after everything". If PW-3 is to be believed, he either on the
 evening of 15.7.1992 or on the morning of 16.7.1992 told the respondent        H
    184                      SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A   that his demand would be met. But when such a demand would be met
    was not disclosed. No appointment was taken from the respondent PW-8
    in his evidence categorically stated that when the accused was not found
    twice in his house he had entertained a doubt that the claim of PW-3 that
    accused had demanded Rs. 50,000 may not be true. [192-B, C, D, El

B         4. According to PWs 3 and 4 the entire transaction was over in a
    couple of minutes whereafter PWs 2 and 8 entered the room. It is doubtful
    that within such a short time, the entire happenings could take place. PW-
    3 says that the accused accepted the amount with both hands after the
    bag was opened and a sum of Rs. 50,000 was taken out and given to the
C   accused, who apart from accepting the same also accepted the visiting card
    from PW-4 and put the amount in a suitcase and then closed the same. It
    is wholly unlikely, having regard to the fact that admittedly PWs 3 and 4
    came to the respondent's house, he would keep a suitcase ready for keeping
    the said amount particularly when PWs 3 and 4 did not come at an
    appointed time. PW-4 stated that the accused accepted the amount with
D   both hands, whereas PW-4 states that he accepted the amount in his right
    hand and took the card in his left. rt appears improbable that a sum of
    Rs. 50,000 offered at one go could be accepted by oue hand by the
    respondent. [192-F, G, H; 193-Al

         5. The conduct of PWs-8 is also not aboveboard. A complaint was
E   made for a specific purpose. He did not have any warrant with him to
    search the house. He did so to show his overzealousness. It has also not
    been explained by the prosecution as to why the compliant had to be lodged
    by PW-2 at Madras. [193-BI

F         6. It has not been disputed that PW-3 had been bearing a grudge
    against the respondent. It may be true that previous enmity alone may
    not be the ground for rejecting the testimony; but each case has to be
    considered on its own merits and no hard and fast rule can be laid down
    therefor. [ 193-FJ

G         State of UP. v. Zaku/lah, [199811sec557, relied on.

          7. It has not been disputed that a material document which was in
    favour of the respondent was not annexed with the charge sheet. Had the
    said document been disclosed by the prosecution, the Special Judge would
    not have arrived at a finding that had the vessel in question been inspected
H
      UNION OF INDIA THROUGH INSPECTOR. CBI 1·. PURNANDUBISWAS [SINHA . .I.]   J 85

and defects pointed out in the report been rectified, the same would have             A
been mentioned in the document. Had the said document been brought
on record, the Special Judge would not have commented against the
respondent. [194-B, Cl

     B. Hanumantha Rao v. State of U.P, [19931 Supp. I SCC 323 and
Habeeb Mohammad v. State of Hyderabad, AIR (1954) SC SI, referred to.                 B
      8. In this case demand of illegal gratification by the respondent has
not been proved. Furthermore, Section 20 of the Prevention of Corruption
Act, 1988 is not attracted as the respondent had been charged for
commission of an offence under Section 13(l)(d) read with Section 13(2)               C
of the Act. [195-El

     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 471
of 2004.

     From the Judgment and Order dated 14.1.2003 of the Madras High                   D
Court in C.A. No. 308 of 1996.

     A. Sharan, Additional Solicitor General, Ms. Binu Tamta, Ms. Shalini
Ranjan, Amit Anand Tiwari and P. Parmeswaran for the Appellant.

     S. Balakrishnan, Sudarshan Rajan, K.K. Misra and P. Narasimhan for               E
the Respondent.

      The Judgment of the Court was delivered by

      S.B. SINHA, J. Union of India is in appeal before us from a judgment
and order dated 14. 1.2003 passed by a Division Bench of the Madras High              F
Court whereby and whereunder an appeal from a judgment of conviction and
sentence dated 12th April, 1996 passed by the Special Court for Central
Bureau of Investigation in O.P. No. 7 of 1995 was allowed.

        The Respondent herein was working as a Surveryor in the Mercantile
Marine Department of Government of India at Tuticorin Port. While on duty             G
on 15.7.1992, he allegedly demanded a sum of Rs. 50,000 by way of illegal
gratification from one D.G. Rajan (PW 3) of M/s. Raja Agencies for giving
clearance certificate in respect of the vessel M.V. Lilly. It is not in dispute
that an inspection of the said vessel was made by the Respondent herein and
certain defects were found which having been rectified by the Master thereof,
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     186                      SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A   it was released. It is alleged that the demand of gratification continued
    purported to be on the premise that unless the amount was paid, other vessels
    of which the said Mis. Raja Agencies was acting as sub-agent would be
    detained.

         Hunter Shipping and Trading Company was an agent for loading and
B unloading the goods carried out from the ships. M/s. Raja Agencies ofTuticorin
  was sub-agent of the said company. It is alleged that normally the ships are
  anchored in sea upon entering into the harbour. However, for loading and
  unloading of the goods, ships are permitted to be berthed at the place allotted
  in harbour for two hours only. If goods are not loaded or unloaded within
C that period, penalty can be imposed.
            The vessel M.V. Lilly came from Bombay. It was brought to VOC 2
     berth at 5 p.m. on 13.7.1992. The Respondent by a letter addressed to the
    Deputy Conservator asked him not to release the said vessel without his
     permission. An inspection of the said vessel was taken and some defects. were
D   found which were intimated to the Master thereof. It is alleged that PW3 was
    asked by the Appellant herein to see him at 7.30 p.m. on 15.7.1992.     ' He
    requested the Respondent to release the ship whereupon he demanded a sum
    of Rs. 50,000/- therefor. Allegedly, PW3 asked the Respondent to reduce the
    amount and upon refusal on his part so to do, allegedly he expressed his
    inability to pay the amount stating that as he is a sub-agent and he would ask
E   the agent therefor and he would inform him the next day. PW3 allegedly
    informed Chandramohan (PW2) on the same night that the notice had been
    issued for the defects foun-d in the ship and the ship was not being permitted
    to leave the harbour wherefor an amount of Rs. 50,000/- was demanded by
    the Respondent. PW2 allegedly told PW3 that the owner of the ship would
p   be informed. On 16. 7.1992, PW3 met the Respondent herein and told that the
    loading would be completed in the ship and, thus, the ship may be permitted
    to leave the harbour. It was further alleged that PW3 promised to arrange the
    money from the main agent or otherwise another ship "Villa Ali" belonging
    to their agency anchored outside the harbour may be retained.

G        On 16. 7.1992, PW2 informed PW3 that the owner of the ship refused
  to pay the amount whereupon PW3 suggested that the same may be reported
  to CBI. PW2 as per the said suggestion gave a complaint to the Superintendent
  ofChennai Central Bureau of Investigation. A trap was arranged on 17.7.1992.
  The Superintendent of Chennai Central Bureau of l.nvestigation having received
H the said report called the Inspector Ramasamy (PW8) to register a case
      UNION OF INDIA THROUGll IN9l'ECTOR, CBI v. PURNANDU BISWAS [SINHA,!]   ] 87

whereupon a First Information Report was prepared and sent to Special Judge A
of Madurai. A committee was formed under the control of the Deputy
Superintendent Jones, Inspector Vijaykumar, R.S.O. Raju who came to
Tuticorin in a hired taxi bearing registration l\Jo. TSE 2828. A room in a
hotel known as Sugam International was booked. PW3 was asked by PW8 to
meet him in the said room. PW3 issued a cheque for the company's account
drawn on the Federal Bank of India Branch of Tuticorin (marked as Ex. P.7) B
for a sum of Rs. 50,000 and the same was withdrawn. Azhagan Muthazhagan
(PW7) and Shanmugam (not examined) were brought as witnesses. In the
bundles having currency notes of Rs. 50,000/- upon having been obtained
from PW3, Phinopthalene powder was applied therein. Sodium Carbonate
solution was also prepared in a glass tumbler and PW8 dipped the hands of C
Shanmugam therein resulting in no change in the solution. Then the bundles
filled in the Phinopthalene powder were given to Shanmugam whereafter his
hands were dipped in the same solution and the colour thereof changed into
light red. This experiment was explained to all of them. The said powder was
thereafter applied on all the bundles of the currency notes and were kept in
a bag brought by PW2. The serial numbers printed in the currency bundles D
were also noted. Four-five visiting cards of PW2 were taken and handed over
to PW4 who was asked to introduce himself as Chandramohan (PW2). They
were told to use a signal specified to them. When PW3 and PW4 went to the
house of the accused, he was found absent. The wife of the Respondent
allegedly informed that he would return after 7 p.m. As the pre-arranged E
signal of the decoy witness might not. have been feasible in the night, it was
changed to lighting of a cigarette. Vijaykumar and Rajan were waiting at
some distance from the house of the Respondent whereas PW8 and others
were waiting 60 ft. away therefrom. Upon noticing the Respondent entering
his house, PW3 and PW4 entered the premises and pressed the door bell.
                                                                                    F
        The Respondent came out and permitted them to come inside. PW3
introduced PW4 as Chandramohan. PW4 allegedly told the Respondent that
he had brought the amount as per request and also gave his visiting card and
requested for his cooperation. PW3 allegedly then brought the bundles of the
currericy notes and handed over the same to the Respondent. The visiting            G
card and the money were taken by him by both hands and the currency notes
were allegedly kept by him in a suit case. Upon noticing the signal given by
PW4, Inspector Vijaykumar and Rajan came inside the house of the
Respondent and introduced themselves. A glass of water was brought and
sodium carbonate solution was prepared. Allegedly when the right hand was
                                                                                    H
    188                       SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A
    put in the glass, the colour of solution became red and when the left hand
    was put, it changed into a light red colour. The Respondent having been
    asked by PW8 as to where he had kept the amount, handed over the suitcase
    containing the amount. He allegedly compared the number of notes and
    seized the same. His house thereafter was searched and a sum of Rs. 1,65,600
B   in cash was seized.

           The Respondent was put to trial on the aforementioned allegations.
    The learned Special Judge relying on the testimonies of the prosecution
    witnesses found him guilty of commission of an offence under Section 13( 1)(d)
C   read with Section 13(2) of the Act and imposed a punishment of rigorous
    imprisonment for five years and a fine of Rs. 50,000/- in default whereof he
    was to undergo a sentence of one year more.

            It does not appear to be in dispute that some documents seized from
    the Respondent on 17. 7.1992 were kept in a sealed box. An application for
D   return of the said documents was filed after the arguments were closed and
    the judgment was reserved. Although the same could not be exhibited before
    the Trial Judge, it appears, the High Court relied thereupon. At this stage, we
    may notice that in paragraph 35 of its judgment, the Trial Judge adversely
    commented upon the conduct of the Respondent herein stating that there was
    no evidence in writing that he had found defects in the ship and after
E   rectification thereof it was allowed to leave the harbour. A further comment
    was made by the learned Judge that if those defects were found the same
    should have been mentioned iri P6 and PIS.

          The High Court, however, took notice of the said documents keeping
F   in view of the fact that the same should have been made a part of the
    chargesheet stating:

           "But, however, the court cannot completely close. its eyes to the fact
           that the defects point out by the accused were noted down by the
           Master of the vessel and the defects were rectified and thereafter, the
G          accused had given no objection certificate for the sailing of the vessel."

          In its judgment, the High Court found the following improbabilities as
    regard involvement of the Respondent in commission of the offence:

          (i) PW2 nowhere in his complaint disclosed that he had received any
H   information from PWl
          UNION OF fNDIA THROUGH INSPECTOR, CBI v. PURNANDU BISWAS [SINHA,J]   ] 89


-         (ii) PW3 admittedly bore a grudge against the Respondent and he might
    have been involved by him in order to wreck vengeance for actions taken
                                                                                      A

    against him

           Mr. A. Sharan, learned Additional Solicitor General in support of the
    appeal would submit that the High Court committed a manifest error in
    rejecting the evidence of PW3 on the ground of enmity, which is irrelevant        B
    in case of this nature as despite the same, his evidence is admissible in
    evidence.

          Taking us through the evidences of PW3, PW4 and PW8, it was urged
    that the explanation of the Respondent to the effect that he had kept the
    amount in his hand and wanted to give the same _back to PW3 and PW4               c
    cannot be accepted in view of the fact that the money was recovered from
    a suit case.

          It was urged that in this case the fact that the amount of Rs. 50,000/-
    was given to the Respondent is not denied and furthennore the recovery of
                                                                                      D
    th~ amount also stood accepted, the prosecution must be held to have
       >
    established its case. If the Respondent was correct in his statement that he
    kept the money. in his hands and intended to give the same back to the
    witnesses, there is no reason, it was urged, as to why the same would be
    found in a suitcase. It was furthermore submitted that the Respondent in view
    of the aforementioned admitted position failed to rebut the presumption in        E
    terms of Section 20 of the Act.

          Mr. S. Balakrishnan, learned senior counsel appearing on behalf of the
    Respondent, on the other hand, would submit that it is a case where over-
    jealousness on the part of the PW8 is writ large as the Respondent's house
    was illegally searched. There was no reason, the learned counsel would            F
"   contend, as to why a complaint was made at Chennai and not at Tuticorin.

           Mr. Balakrishnan would urge that admittedly no demand was made
    from PW2. It is also accepted that PW3 bore a grudge against the Respondent
    an·d as such there was every possibility of foisting a false case against him.
                                                                                      G
    As regards the punch witnesses, the learned counsel would submit that the
    prosecution has not disclosed as to how their presence was secured. PW4
    who was a bank manager allegedly was contacted through his superior whose
    identity was not disclosed and anothe~ punch witness Shanmugam was not
    examined at all.
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    190                        SUPREME COURT REPORTS [2005) SUPP. 4 S.C.R.

A         The learned counsel had pointed out the discrepancies in the statements
    of PWs-3 and 4 and further submitted that the entire incident, viz., from
                                                                                        -
    entering into the house of Respondent by PWs 3 and 4 till the signal was
    given, could not have been completed within a couple of minutes as stated
    by the witnesses. It was pointed out that the bag wherein the money was
B   carried although was directed by PW-8 not to be opened till the Respondent
    accepts the amount neither the same was seized nor put to the chemical test.
    The learned counsel would contend that PWs-3 and 4 did not take any prior
    appointment and they just barged into the house of the Respondent which             /

    cannot be accepted. No demand of illegal gratification by the Respondent at
    any stage, it was submitted, has been established.
c         The suit case, although seized and marked as exhibit, was not put to
    chemical test. The learned counsel would submit that in view of the fact that
    the ship was released on 16.7.1992 itself, the prosecution story must be
    disbelieved.

D         Mr. Balakrishnan would point out that whereas, according to PW-3, the
    Respondent received the entire money in both hands, PW-4 alleged that he
    accepted the same with his right hand and accepted the visiting card given
    by him with his left hand which apparently is improbable. The witnesses,
    thus, contradicted themselves in' material particulars. The prosecution has
    further not disclosed as to how the suitcase was brought at the place where
E   the witnesses were sitting. Suppression of a vital document by the prosecution
    and, particularly, in a case of this nature, it was argued, must be deprecated
    by this Court.

          Our attention was also drawn to the fact that prior to joining of the
F   Respondent, the average income of the Board was Rs. 62/- which within a
    period of four months was raised to Rs. 47,642/-.

          It was further submitted that in a case where two views are possible,
    this Court in ex.ercise of its jurisdiction under Article 136 of the Constitution
    of India may not interfere with a judgment of acquittal.
G
          The charge framed against the Respondent in terms of Section 211 of
    the Code of Criminal Procedure was that while on duty on 15.7.1992, he
    demanded a sum of Rs. 50,000 as illegal gratification from PW-3 of M/s Raja
    Agencies for giving clearance certificate for the vessel M.V. Lilly and pursuant
    to the said demand, he was offered the said amount which he accepted on
H   17.7.1992 as a motive or reward for issuing clearance certificate for the said
           UNION OF INDIA THROUGH INSPECTOR, CBI v. PURNANDU BISWAS [SINHA, J ]   191

     vessel. No charge was framed against the Respondent that he continued with A
     his demand despite releasing. vessel M. V. Lilly stating that if the said amount
     is not paid, he would detain· another.vessel of which PW3 was the sub-agent.
     It is not disputed that the Respondent had the authority to make inspection
     of the said vessel at the Port of Tutucorin. It is further not in dispute that
     when defects in the vessel were pointed out, the master thereof was required B
     to remove the same. The surveyor is merely concerned with inspection of the
     vessel whereupon he may point out certain defects. Only when such defects
     are rectified, the vessel is released. All the materials on records including the
     documents which were seized on 17.7.1992 disclose that the defects were
     pointed out to the master of the vessel M.V. Lilly and the same having been
     rectified, it was allowed to leave the harbour on 16.7.1992. The prosecution C
     case, as disclosed by PW-3, was that on his request the same was done, as
     he had stated that a sum of Rs. 50,000 would be paid by him failing which
     he may retain another vessel (M.V. Villa Ali) of which he was the agent, was
     not the subject matter of charge. It appears that the suggestion was made by
     PW-3 himself. There was no demand to that effect by the Respondent. PW-
     3, further disclosed that the said vessel was already anchored outside the D
     port. In the complaint to the CBI made by PW-2 on 16.7.1992, it is stated
     that PW-3 himself suggested on 15.7.1992 that another vessel may be retained
     by the Respondent if the aforementioned sum of Rs. 50,000 was not paid.
-.           We have noticed herei.nbefore that such charge was not framed. E
     Furthermore, the harbour master in his deposition stated that MY Villa Ali
     was anchored on 16.7.1992 at I p.m. and brought inside the harbour on
     .19.7.1992 at 5.30 p.m. M.V. Villa Ali left the Port on 19.7.1992 at 6.45 p.m.
     Thus, evidently the statements of PW3 were not correct. A trap was laid by
      the CBI on 17.7.1992 i.e. much prior to bringing of the said vessel M.V.
      Villa Ali in the harbour on 19.7.1992. Furthermore, having regard to the fact F
     that the said vessel M.V. Villa Ali was anchored only at 1.p.m. on 16.7.1992,
     it cannot be believed that PW-3 could have said on the evening of 15.7.1992
     or even in the morning of 16.7.1992 that the vessel was already anchored
     outside the port. PW-3 did not say that the accused threatened that he would
     retain another vessel of which he was the agent, if the said sum of Rs. 50,000 G
     was not paid.

            It has furthermore not been disputed that whereas average income of
     the harbour was only Rs. 62 , after joining of the Respondent herein, within
     a period of four months, the income of the Port gone up to Rs. 47,642. The
     fact that PW3 was hostile to the Respondent is not in dispute. In this view H
     192                         SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A of the matter, the purported demand made by the Respondent cannot be said
     to have been established.

            It is furthermore not in dispute that PW-3 had been asked by PW-8 to
     carry the money in a bag. On a conjoint reading of the deposition of PWs-
     3, 4 and 8, it would appear that the money was kept in a handbag with a zip
B    in a room in the hotel. The same was to be delivered by PW-3 only when the
     accused would demand the same. PWs-3 and 4 did not say that there any
     demand was made by the Respondent at that stage. The evidence brought on
     record shows that PW-3 took the handbag with the money inside the house
    of the accused and handed over the same, but the same was retained by PW-
C   3. The said handbag was not seized. PW-3 categorically stated that he kept
    the handbag in his car. Why the said handbag was not seized or subjected to
    phenolphthalein test is beyond one's comprehension. PWs-3 and 4 furthermore
    do not suggest that even any demand was made by the Respondent when they
    went inside his house on 17.7.1992 . PW-4 allegedly told the accused "not
    to stop the vessel" and that "we will abide by your conditions", to which the
D   accused replied "yes I will look after everything". If PW-3 is to be believed,
    he either on the evening of 15. 7.1992 or on the morning of 16. 7.1992 told
    the Respondent that his demand would be met. But when such demand would
    be met was not disclosed. No arpointment was taken from the Respondent.
    PW-8 in his evidence categorically stated that when the accused was not
E   found twice in his house, he !iad entertained a doubt that the claim of PW-
    3 that the accused had demanded Rs.50,000/- may not be true.

         In the aforementioned context the prosecution ought to have proved as
  to why the handbag was not seized or it and the suit case were not subjected
  to the phenolphthalein test. According to PWs-3 and 4, the entire transaction
F was over in a couple of minutes whereafter PWs-2 and 8 entered the room.
  PWs-3 and PW-4 alleged that there had been some amount of conversation
  between them and the Respondent; PW-4 introduced himself as the agent of
  the ship, meaning thereby PW-2; and he gave his card. Thereafter, only the
  amount was offered, accepted and kept in a suit case. It is doubtful that
  within such short time, the entire happenings could take place. PW-3 says
G that the accused accepted the amount with both hands after the bag was
  opened and sum of Rs. 50,000/- was taken out and given to the accused, who
  apart from accepting the same also accepted the visiting card from PW-4 and
  put the amount in a suitcase and then closed the same. It is wholly unlikely
  having regard to the fact that admittedly PWs-3 and 4 came to the Respondent's
H house, he would keep a suitcase ready for keeping the said amount particularly
      UNION OF INDIA THROUGH INSPECTOR, CBI 1·. PURNANDU BISWAS (SINHA, J.]   J93

when PWs - 3 and 4 did not come at an appointed time. PW-3 stated that the          A
accused accepted the amount with both hands, whereas PW-4 states that he
accepted the amount in his right hand and took the card in his left. It appears
improbable that a sum of Rs.50,000 offered at one go could be accepted by
one hand by the Respondent.

      The conduct of PW-8 is also not above board. A complaint was made             B
for a specific purpose. He did not have any warrant with him to search the
house. He did so to show his over-zealousness. It has also not been explained
by the prosecution as to why the complaint had to be lodged by PW-2 at
Madras. Admittedly, the CBI Court is situated at Madurai. It is expected that
when a demand was made by the Respondent to PW-3, he would go and                   C
lodge a complaint at the nearest place particularly when the complaint was
lodged at his instance. The complaint of PW-2 was not only entertained. All
the officers also came with him in a hired taxi. They stayed in a hotel. PW-
3 evidently had a bank account at Tuticorin. The company was carrying on
a business through its sub-agent. Thus, even he could come over to Tuticorin        D
and lodge a complaint. He did choose to do so, the reason wherefor is not
explained. The natural conduct of PW-2 would have been to verify the fact
from the Respondent particularly when to his knowledge, the vessel M. V.
Lilly had already been released.

      Evidence on record does not disclose in clear terms as to how PW-4            E
and Shanmugham were contacted. According to PW-2 he was asked by his
officer to comply with the request of the prosecution.

      It has not been disputed that PW-3 had been bearing a grudge against
the Respondent. It may be true, as has been submitted by the learned Additional
Solicitor General that previous enmity alone may not be the ground for              F
rejecting the testimony; but each case has to be considered on its own merits
and no hard and fast rule can be laid down therefor.

      In State of UP. v. Zakaullah, [1998] I SCC 557, whereupon Mr. Sharan
placed reliance, Thomas, J. clearly stated that evidence of such a witness G
would require the court to scrutinize it with a greater care, but it does not call
for outright rejection of his evidence at the threshold.

      The test laid by this Court in the said decision if applied together with
other circumstances, it would appear that the prosecution story may not be
correct.                                                                        H
      194                     SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R .

. A          In B. Hanumantha Rao v. State of UP., (1993] Supp. 1SCC323, the
      conviction was based on concurrent findings of fact and appreciation of
      evidence. No legal principle was laid down in the said decision except stating
      that the circumstances pointed out therein had been considered by the High
      Court and the same did not improbablise the demand and acceptance.

 B          It has not been disputed that a material document which was in favour
   of the Respondent was not annexed with the charge-sheet. Had the said
   document was disclosed by the prosecution, the learned Special Judge would
   not have arrived at a finding that had the vessel M.V. Lilly been inspected,
   and defects pointed out in the report been rectified, the same would have
 C been mentioned in the document. Had the said document been brought on
   record, the learned Special Judge would not have commented against the
   Respondent. The learned Special Judge, thus, committed an error of records.
   Such a statement had been made by the prosecution witnesses before PW-8
   that the Respondent had inspected the vessel M.V. Lilly and went on dictating
 D the defects and the master noted them, would by itself a pointer to show that
   the said defects were pointed out to the master of the vessel who had to
   rectify them before release of the vessel.

         This Court in Habeeb Mohammad v. State of Hyderabad, AIR (1954)
   SC 51, noted a long series of decisions that "the view taken in India was that
 E the purpose of a criminal trial is not to support at all costs a theory but to
   investigate the offence and to determine the guilt or innocence of the accused
   and the duty of a public prosecutor is to represent not the police but the
   Crown, and this duty should be discharged fairly and fearlessly with a full
   sense of the responsibility attaching to his position and that he should in a
 F capital case place before the court the testimony of all the available eye-
   witnesses, though they give different accounts, and that the rule is not a
   technical one, but found on common sense and humanity".

        The learned Additional Solicitor General submitted that onus of proof
   was upon the Respondent to explain as to how he came in possession of the
 G amount. Section 20 the Prevention of Corruption Act, 1988 reads as under:
                                                                                       I
             "20. Presumption where public servant accepts gratification other
             than legal remuneration.--(1) Wbere, in any trial of an offence
             punishable under section 7 or section 11 or clause (a) or clause (b)
             or sub-section (I) of section 13 it is proved that an accused person
 H
   UNION OF INDIA THROUGH INSPECTOR, CBI 1·. PURNANDU BISWAS [SINHA. J.]    J95

        has accepted or obtained or has agreed to accept or attempted to           A
        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     B
        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 ·~my gratification
        (other than legal remuneration) or any valuable thing has been given C
        or uffered 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.                           D

             (3) Notwithstanding anything contained in sub-sections (I) and
        (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      E
        fairly be drawn."

       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.                                     F
      M. Narsinga Rao v. State of A.P., [2001] 1 SCC 691, relied upon by
Mr. Sharan, was rendered having regard to the contention raised therein that
it was n~t enough that some currency notes were handed over to the public
servant to make it as acceptance of gratification; prosecution has a further
duty to prove that what was paid amounted to gratification. Such a question        G
does not arise for consideration in this case.

      Moreover, the High Court has recorded a judgment of acquittal. It for
reasons assigned therein opiried :

           "Taking into consideration overall aspects of the case, I am unable     H
    196                    SUPREME COURT REPORTS [2005] SUPP. 4 S.C.R.

A          to completely disagree with the case of the accused that the trap was
           a stage managed affair, for the reasons already indicated supra.
                                                                                    -
          We, albeit for other reasons also agree with the conclusion of the High
    Court. The Appeal, therefore, being devoid of any merit is dismissed.

B v.s.s.                                                     Appeal dismissed.