Holding

The presumption under Section 20 is rebuttable; the accused need only prove his case on a pre‑ponderance of probability, and without proof of demand or acceptance the conviction under Section 7 cannot stand.

Summary

The appellant, C.M. Girish Babu, and another accused were tried for demanding and accepting a bribe under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 and for criminal conspiracy under IPC s.1208. The trial court convicted them; the Kerala High Court upheld the conviction under s.7 but acquitted on the other charges. On appeal, the Supreme Court held that the prosecution failed to prove beyond reasonable doubt that the appellant received any gratification, noting that the alleged demand was hearsay and the money was presented as a loan repayment. The Court clarified that the presumption of gratification under s.20 of the Act is rebuttable and the accused bears only a pre‑ponderance of probability burden, not the prosecution’s beyond‑reasonable‑doubt standard. Consequently, the conviction under s.7 was set aside and the appellant was acquitted.

Issues considered

The presumption of acceptance of gratification under Section 20 of the Prevention of Corruption Act, 1988, is it irrebuttable or rebuttable?
What burden of proof rests on an accused when the Section 20 presumption is drawn?
Whether the recovery of tainted money alone suffices to establish the offence under Section 7 of the Act.
Whether the prosecution proved beyond reasonable doubt the demand and acceptance of gratification.

Legislation cited

Indian Penal Code, 1860s. 1208
Prevention of Corruption Act, 1988s. 13(1)(d), s. 13(2), s. 20, s. 7

Subjects

Prevention of Corruption ActSection 20 presumptionburden of proofbriberygratificationcriminal conspiracyevidencehearsayacquittal

Judgment

[2009] 2 S.C.R. 1021

C.M. GIRISH BABU A
' --i
v.
C.B.I. COCHIN, HIGH COURT OF KERALA
Criminal Appeal No. 377 of 2009
FEBRUARY 24, 2009
B
[LOKESHWAR SINGH PANTA AND 8. SUDERSHAN
REDDY, .JJ.]
Prevention of Corruption Act, 1988:
s. 7 - Prosecution for conspiring and committing offence c
of demanding and accepting illegal gratification - Prime
witness declared hostile - Conviction by trial court holding that
demand and acceptance of the gratification proved - High
Court convicting uls. 7 for accepting the gratification and
holding that demand not proved - On appeal, held: D
'~
Acceptance of gratification by the accused also not proved
beyond reasonable doubt - Therefore, acquitted.
s. 20 - Presumption under - Nature of - Held: Such
presumption is rebuttable and not inviolable.
E
Evidence - Burden of proof- On accused against whom
presumption drawn uls. 20 of Prevention of Corruption Act _:
.:...__..J. Nature of - Held: Burden of proof on such accused is not akin
~- to the burden placed on prosecution to prove the case beyond
reasonable doubt - Prevention of Corruption Act, 1988 - s.
20. F

Appellant-accused, alongwith accused No. 1 was
prosecuted for offences u/s. 1208 IPC r/w ss. 7 and 13 (2)
r/w s. 13 (1) (d) of Prevention of Corruption Act, 1988, for
having conspired and committing the act of demanding G
·t and accepting gratification. Trial court convicted him u/
j. ss. 7 r/w s. 13 (1) (d) and 13 (2) of the Act and acquitted
him u/s. 1208 IPC. High Court, in appeal, confirmed his
conviction u/s 7 of the Act and acquitted him u/s 13 (1) (d)
1021 H
1022 SUPREME COURT REPORTS [2009] 2 S.C.R.

A r/w s. 13 (2) of the Act, holding that demand of gratification
was not proved beyond reasonable doubt. However, High
Court acquitted accused No. 1 of all the charges. Hence
the present appeal, by the appellant:-ac·cused.
Allowing the appeal, the Court
B
HELD: 1.1 The prosecutiOn failed in establishing the
guilt of the accused beyond reasonable doubt that the
appellant received any gratification. The appellant has
proved his case by the test of preponderance of
C probability and accordingly it is concluded that the
amount was not taken by the appellant as gratification.
He was made to believe that amount paid to him was
towards the repayment of loan taken by PW2 from
Accused no. 1. The evidence of PW-2 about the demand
D of bribe amount by the appellant is hearsay and therefore
inadmissible. PW-10 also does not support the story
narrated by PW-2. [Paras 10, 21 and 22] [1031-G; 1032-A]
Sura} Mal vs. State (Delhi Admn.) 1979 (4) SCC 725; M.
E Narsinga Rao VS. State of A.P 2001 (1) sec 691 - relied on.
1.2 The burden of proof place·d upon the accused
person against whom the presumption is made u/s. 20 of
Prevention ·of Corruption Act is not akin to that of burden
placed on the prosecution to prove the case beyond a
F reasonable doubt. The· presumption to be drawn u/s. 20
is not an inviolable one. The accused charged with the
offence could rebut it either through the cross-
. exam.ination of the witnesses cited against him or by
adducing reliable evidence. If the accused fails to disprove
G 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.
[Paras 19 and 20] [1030-F-H; 1031-A]
H Jhangan vs. State 1966 (3) SCR 736 - relied on.
C.M. GIRISH BABU V. 1023
C.B.I. COCHIN, HIGH COURT OF KERALA

Case Law Reference A

1979 (4) sec 125 Relied on. Para 16
2001 (1) sec 691 Relied on. Para 18
1966 (3) SCR 736 Relied on. Para 20
B
CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
No. 377 of 2009
From the Judgement and Order dated 20.11.2007 of the
High Court of Kerala at Ernakulam in Criminal Appeal No. 285 C
of 2002
U.U. Lalit, K.V. Viswanathan, M. Girish Kumar, s:
Raghunath, Avijeet K. Lala, Vijay Kumar, for the Appellant.
Naresh Kaushik, Manish Kaushik, B. Krishna Prasad, for
the Respondent. D
The Judgement of the Court was delivered by
B.SUDERSHAN REDDY, J.
1. Leave granted.
E
2. The appellant along with Accused No.1 was tried for
offences under Section 1208 of IPC read with Section 7 and
13 (2) read with 13(1) (d) of Prevention of Corruption Act, 1988
(hereinafter referred to as "the said Act") by Special Judge
(SPE/CBl)-1, Ernakulam who by his judgment dated 30th March, F
2002 convicted the appellant for the offence punishable under
Section 7 read with Section 13(1) (d) and 13(2) of the said Act.
He was acquitted of the charge under Section 1208 of the IPC.
The appellant was accordingly sentenced to undergo rigorous
imprisonment for three years and to pay a fine of Rs.20,000. In G
default for payment of fine the appellant was further ordered to
undergo rigorous imprisonment for a further period of six months
for the offence punishable under Section 13(1) read with Section
13(2) of the said Act. He was also sentenced to undergo
rigorous imprisonment for two years for the offence punishable H
1024 SUPREME COURT REPORTS [2009] 2 S.C.R.

A under Section 7 of the said Act. The substantive sentences were
directed to run concurrently.
r--
3. The appellant preferred an appeal to the Kerala High
Court at Ernakulam, which dismissed the appeal by its judgment
th
dated 28 .November, 2007. However, the Appellate Court
B reduced the substantive sentence to that of one year only. The
High Court acquitted the first accused of all the charges against
which State preferred no appeal. This appeal is brought, by
special leave against the judgment of the High Court. ~'

c 4. The prosecution case is that while accused no.1 working
as the Inspector of Central Excise, Air Cargo Complex,
Trivandrum, demanded an amount of Rs.1,500/- as gratification
from one Dayanandhan-PW10 and Prakash Kumar-PW2, who
were the Senior Assistant and Manager respectively of M/s.
D lnterfrieght Services Pvt. Ltd., Trivandrum as a motive or reward
(
for giving clearance for a wet grinder booked by one P. S. Shine
to be sent to Dubai.
5. The appellant was also working as Inspector of Central
Excise, Air Cargo Complex, Trivandrum along with Accused no.
E 1. On 2nd October, 1999 at about 6 a.m. the appellant is stated
to have actually demanded the amount of Rs.1,500/- from
Dayanandhan-PW10 as gratification for clearing the same wet
grinder and accepted the bribe amount for himself and on behalf ~...,
of accused no.1 and thereby committed offences under Section
F 7 read with Section 13(1) (d) and 13(2) of the said Act.
6. The prosecution story as unfolded during the trial is that
the appellant and Accused no. 1 together conspired and
committed the act of demanding and accepting gratification.

G 7. In the present case, it may not be really necessary to
discuss the entire evidence available on record for the simple
reason that the High Court acquitted the Accused no. 1 of all the
charges and found no case against him. It is the Accused no. 1
", ....

who is stated to· have demanded the gratification for clearing
and sending wet grinder to Dubai. The High Court as well as
H
C.M. GIRISH BABU V. C.B.I. COCHIN, HIGH COURT 1025
OF KERALA [B.SUDERSHAN REDDY, J.]

-~
the trial court found that there was no criminal conspiracy A
between the appellant and accused no. 1 and therefore acquitted
both of them of the charge under Section 1208 of the IPC.
-( 8. The High Court upon re-appreciation of evidence came
to the conclusion that the prosecution miserably failed to prove
B
the charge against the appellant for the offence under Section
,13 (1) (d) read with Section 13 (2) of the said Act. In this regard,
the High Court found that there is nothing in the evidence of
l ~-{
PW-11 - Natarajan, official witness, to arrive at any conclusion
of appellant making any demand of gratification. PW-11 stated
that from the conversation between the appellant and PW-10,
c
he could heard the appellant asking "is it ready?" and PW-10
only nodding his head. It is for that reason the High Court
recorded that the alleged demand by the appellant on 2.10.1999
is highly doubtful and is not proved beyond reasonable doubt.
';. D
The High Court relied upon yet another circumstance creating
a doubt as regards the demand of ariy gratification by the
appellant as there is no mention of any such demand in Exhibit
P-9 - post trap mahazar. The High Court accordingly acquitted
the appellant of charges under Section 13(1 )(d) read with
E
Section 13(2) of the said Act.
9. The prosecution story mainly rested upon the evidence
,.+- of PW-10 who is the central figure in the entire story of the
r prosecution. He did not support the prosecution story and was
declared hostile. It was to him that the Accused No.1 had F
allegedly made a demand of gratification on the morning of
1.10.99 and it was in his presence Accused No.1 repeated the
demand when he went along with PW-2 in the evening of 1.10.99
to the Air Cargo offic:;e. This is the version given by PW-2. But
PW-10 does not support this story. PW-10 in his evidence stated G
;.._
' that on 1.10.99 Accused No.1 in the morning hours suggested
certain corrections in the documents as regards the valuation -
and description of the item that was to be sent to Dubai. When

-
'
(
PW-10 went back to office and told PW-2, PW-2 said that no
correction need be made. Thereafter both of them visited Air H
1026 SUPREME COURT REPORTS [2009] 2 S.C.R.

A Cargo Complex. It is in the evidence of PW-10 that he alone
went inside the room to meet Accused no. 1 and told him that
no corrections possibly could be made as PW-2 was not
interested in making the suggested corrections. But Accused
no. 1 insisted for carrying out corrections if the item was to be
B cleared for its despatch to Dubai. Then PW-10 requested the
Accused no. 1 to meet PW-2 butAccused no. 1 retorted saying
that whoever he may be, he will not meet him.
10. Be it noted that PW-2 thereafter never visited Air Cargo
C Complex till he came with the trap party early in the morning on
2.10.1999. PW-2 in his evidence stated that on 2.10.99 PW-
10-Dayanadhan came to office at 4.30 a.m. and informed him
that he went to the Air Cargo office and found that Accused· no.
1 was not on duty and the appellant was on duty. According to
PW-2, PW-10 informed him that on inquiry about the cargo the
D appellant told him that Accused no. 1 has already apprised him
about the cargo and accordingly it would be cleared only if
Rs.1500/- is brought. PW2 stated in his evidence that he
immediately wrote Exh.P2-complaint. He clearly admitted in his
evidence that he had no personal knowledge as to what
E transpired between PW-10 and the appellant at the Air Cargo
Office. The evidence of PW-2 about the demand of bribe amount
by the appellant is hear say and therefore inadmissible.
11. Interestingly enough, PW-10 does not support the story
F narrated by PW-2. According to him when he went to the Air
nd
Cargo Complex on 2 October, PW-2 and another person who
came to send the wet grinder was with him and PW-2 asked
him to give Rs.1500/- to the appellant saying that it was a loan
repayable by PW-2 to Accused no.1. He accordingly collected
G the money from PW-2 and gave it to the appellant. He in
categorical terms accepted that the appellant had never
,., demanded any bribe amount from him. The evidence of PW-10
also suggests that PW-2 was near the import Hall at a distance
of about 40 metres between the Air Maldives Godown and import
H Hall.
C.M. GIRISH BABU V C.8.1. COCHIN, HIGH COURT 1027
OF KERALA [B.SUDERSHAN REDDY, J.]

12. An analysis of the evidence of PW-2, PW-1 O and PW- A
~""""' 11 the official witness reveals the following:

a) The prosecution miserably failed to establish the
theory of criminal conspiracy hatched by the appellant
along with Accuse.d no. 1 to demand and receive B
gratification;

b) The prosecution miserably failed to establish its
,.-., theory that there was a demand of gratification by
Accused no.1 on 1.10.99;
c
c) There is no proof on any demand of gratification by
the appellant on 2.10.99;

d) The evidence of PW-11, the official witness, Assistant
Manager, Vigilance of FCI to the effect all that he
\,
heard was appellant asking PW-10 "is it ready?" to D
f
which PW-10 nodded his head. This evidence of the
official witness present at the time of trap does not
establish· that there was any demand of gratification
by the appellant. There is no reason to disbelieve
.• the evidence of PW-11; E
'
e) Exhibit P-9 post trap mahazar does not record the

.
,., factum of any demand of gratification by the appellant.

13. The evidence on record suggests that PW10 had given
. money to the appellant stating that it was a loan repayable, by F
PW2 to accused no.1. The appellant was lulled into that belief
based on which he received the amount from PW-10.

14. The fact remains that the prosecution established
through evidence of PW-12 and PW-13 and Exhibit P9"'.post G
' t trap mahazar that MO IV series tainted currency notes were
__;,,,, recovered from the pocket of the appellant. A question then
arises for consideration is that whether the recovery of the tainted
money itself is sufficient to convicMhe appellant under Section
7 of the said Act? H
1028 SUPREME COURT REPORTS [2009] 2 S.C.R.

A 15. The crucial question would be whether the appellant
had demanded any amount as gratification to show any official
favour and _whether the said amount was paid by PW-10 and
received by the appellant as consideration for showing such
official favour. The only evidence available in this regard is that
B of PW-1 Owho did not support the case of the prosecution. The
appellant at the earliest point of time explained that it was not
the bribe amount received by him but the same was given to
him by PW-10, saying that it was towards repayment of loan
taken by his Mahager-PW2 from the Accused no.1. This is
c evident from the suggestion put to PW-2 even before PW-10
was examined. Similar suggestion was put to the investigating
·officer that he had not recorded the version given by the
appellant correctly in the post trap mahazar-Exhibit-P9 and no
proper opportunity was given to explain the sequence of events.
D 16. In Suraj Mal Vs. State (Delhi.Admn.) reported in
[(1979) 4 sec 725], this court took the view that mere recovery
of tainted money divorced from the circumstances under which
it is paid is not sufficient to convict the accused when the
substantive evidence in the case is not reliable. The mere
E recovery by itself cannot prove the charge of the prosecution
against the accused, i.n the absence of any evidence to prove
payment of bribe or to show the accused voluntarily accepted
the money knowing it to be bribe.
17. The learned counsel for the CB I submitted that the onus
F of proof was upon the appellant to explain as to how he came
into possession of the amount recovered from him during the
trap. The argument of the learned counsel is obviously based
on Section 20 of the Prevention of Corruption Act, 1988 which
reads as under:
G
"20. Presumption where public servant accepts
gratification other than legal remuneration.- (1) Where,
in any trial of an offence punishable under Section 7 of
Section 11 or clause (a) or clause (b) of sub-section (1) of
Section 13 it is proved that an accused person has
H
C.M. GIRISH BABU V. C.B.I. COCHIN, HIGH COURT 1029
OF KERALA [B.SUDERSHAN REDDY, J.] >

accepted or obtained or has agreed to accept or attempted A
w~
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 B
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.
c
(2) Where in any trial of an offence punishable under
Section 12 or under clause (b) of section 14, it is proved
that any gratification (other than legal remuneration) or
any valuable thing has been given or offered to be given
or attempted to be given by an accused person, it shall be D
'; 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 E
he knows to be inadequate.
(3). Notwithstanding anything contained in sub-sections
.. } (1) (2), the court may decline to draw the presumption
referred to in either of the said sub-sections, if the
F
gratification or thing aforesaid is, in its opinion, so trivial
that no interference of corruption may fairly be drawn."

18. A three-Judge Bench in M. Narsinga Rao Vs. State
of A.P. (2001) 1 sec 691 while dealing with the contention that
it is not enough that some currency notes were handed over to G
..}t: the public servant to make it acceptance of gratification and
p(Osecution has a further duty to prove that what was paid
amounted to gratification, observed:

" ........................ we think it is not necessary to deal H
'•
•

1030 SUPREME COURT REPORTS [2009J 2. s.c.R:
r
A with the matter in detail because in a recent decision
,'>-.-~
rendered by us the said aspect has been dealt with at 1
length. (Vide Madhukar Bhaskarrao Joshi v. State of
Maharashtra.) The following statement made by us in the
said decision would be the answer to the aforesaid
B contention raised by the learned counsel: (SCC p.577,
para 12)
The premise to be established on the facts for drawing
the presumption is that there was payment or acceptance ~~

c of gratification. Once the said premise is established the
inference to be drawn is that the said gratification was
accepted 'as motive or reward' for doing or forbearing to
do any official act. So the word 'gratification' need not be
stretched to mean reward because reward is the outcome
D of the presumption which the court has to draw on the
factual premise that there was payment of gratification. {
This.will again be fortified by looking at the collocation of
tl
two expressions adjacent to each. other like 'gratification
or any valuable thing'. If acceptance of any valuable thing
E can he.Ip to draw the presumption that it was accepted as
motive or reward for doing or forbearing to do an official l
\·
act, the word 'gratification' must be treated in the context
to mean any payment for giving satisfaction to the public
servant who received it." A; .
F 19. It is well settled that the presµmption to be drawn under
Section 20 is not an inviolable one. The accused charged with
the offence could rebut it either through the cross-examination
of the witnesses cited against him or by adducing reliable
evidence. If the accused fails to disprove the presumption the
G same would stick and then -it can be held by the Court that the .i
prosecution has proved that the accused received the amount -"'.:
towards gratification.
i:-
~
20. It is equally well settled that the burden of proof placed
H upon the accused person against whom the presumption is
'::t

r-
C.M. GIRISH BABU V. C.B.I. COCHIN, HIGH COURT 1031
OF KERALA [B.SUDERSHAN REDDY, J.]

made under Section 20 of the Act is not akin to that of burden A
""--\
placed on the prosecution to prove the case beyond a
reasonable doubt. "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 of proof his case beyond a
reasonable doubt. That is, of course, the test prescribed in B
deciding whether the prosecution has discharged its onus to
prove the guilt of the accused; but the same test cannot be
) r-( applied to an accused person who seeks to discharge the
burden placed upon him under Section 4 under the Prevention
of Corruption Act. It is sufficient if the accused person succeeds c
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 verdict of guilt.
The onus of proof lying upon the accused person is to prove his
D
) case by a preponderance of probability. As soon as he
succeeds in doing so, thf; burden shifts to prosecution which
still has to discharge its original onus that never shifts, i.e.;
that of establishing on the whole case the guilt of the accused
beyond a reasonable doubt." (See Jhangan Vs. State 1966
E
(3) SCR 736). (Emphasis supplied)
21. It is against this background of principles we have
f(}. examined the contention of the appellant that the charges under
Section 7 of the Act have not been proved against him. It was
argued by Shri U. U. La lit, Senior counsel, that the circumstances F
found by the High Court in their totality do not establish that the
appellant accepted the amount of Rs.1500/- as gratification.
Having examined the findings of both the Courts, we are satisfied
that the appellant has proved his case by the test of
""I preponderance of probability and we accordingly reach the G
' I conclusion that the amount was not taken by the appellant as
gratification. He was made to believe that amount paid to him
was towards the repaym~nt of loan taken by PW2 from Accused
no. 1.
H
SUPREME COURT REPORTS .[2009) 2 S.C.R.

A 22. The prosecution failed in establishing the guilt of the
accused beyond reasonable doubt that the appellant received r--- '.
·,
any gratification.- i

23. For the aforesaid reasons, we find it difficult to sustain
the conviction of the appellant under Section 7 of the said Act. '
.
I

8
Accordingly, the conviction of the appellant and the sentence
imposed upon him is set aside.
24. The appeal is allowed.
C 25. The bail" bonds executed by the appellant for release
on bail pursuant to the order dated 04.02.2008 shall stand
discharged.

K.K.T. · Appeal allowed.

,
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