Presumption raised under section 20 of pc act
velmurugan
(Querist) 05 December 2012
This query is : Resolved
Respected Ld.Counsels,
In a bribery case under sections 120B of IPc and sections 7,12,13(1) r/w 13(d) of PC act following a ACB raid(not a Trap case),FIR is made by ACB on the basis of source information.The alleged Bribe givers are also marked as accused hence,there is no complainant.The alleged transaction of money is not witnessed by any independent witnesses.The money recovered from the scene is not tainted(no chemical on the currency notes)and of course, the money recovered by the raiding ACB is witnessed by 2 independent witnesses.And the POST RAID Proceedings(PANCH NAMA) speaks about recovery of money from the place of scene and not from the personal possession of Accussed. In this Scenario,
1)will the mandatory presumption to be raised under Section 20 of PC act will operate because of the recovery?
2)Is it must for the accused to offer a reasonable explanation?
3) Can it be said that the prosecution has proved all the basic ingredients so conviction in the case possible by circumstantial evidence.
Thank you
V R SHROFF
(Expert) 05 December 2012
IT DOES NOT PROVE THE CASE.
prosecution has not proved all the basic ingredients for conviction .
Raj Kumar Makkad
(Expert) 05 December 2012
The due procedure in such matters has not been followed by IO hence the possibility of conviction is very remote in this case.
Guest
(Expert) 05 December 2012
Presumption without proving motive to accept or demand bribe has no relevance. So, if motive is proved, the prosecution as well as judge can base their findings on presumtion. However, application of sec.20 of PC Act would not reasonably be attracted when money is not tainted, the transaction has not been witnessed by any independent witness, and money is also not recovered from the accused. Mere recovery of money from the scene cannot be a valid proof of the money belonging to the bribe giver, irrespective of whether the panchnama speaks of recovery from the scene. Recovery of money from scene has no relevance without the aforesaid elements of raid.
Sudhir Kumar, Advocate
(Expert) 05 December 2012
It appears that bribe giver was not complainant so in this case the currency cannot be tainted because before the transaction it was never in the custody of ACB. Rather its being tainted will weaken the case.
20. Presumption where public servant accepts gratification other than legal remuneration.
(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or Clause (a) or Clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain from himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may, without consideration or for a consideration which he knows to be inadequate.
The requirement of the section is that is that :-
(i) Accused to be public servant.
(ii) Accused to have accepted or agreed to accepted or to attempt to obtain gratification
(iii) Other than legal remunerations
(iv) Any valuable thin
(v) From any person
(vi) Nothing contrary is proved.
Then it will be presumed that “he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may, without consideration or for a consideration which he knows to be inadequate”
Plain reading of this section provides answers to your question s:-
1)will the mandatory presumption to be raised under Section 20 of PC act will operate because of the recovery?
Ans : Yes. As long as other facts are proved.
2)Is it must for the accused to offer a reasonable explanation?
Ans : Yes
3) Can it be said that the prosecution has proved all the basic ingredients so conviction in the case possible by circumstantial evidence.
Ans : No circumstantial evidence the following facts have to be proved by the prosecution
(vii) Accused to be public servant.
(viii) Accused to have accepted or agreed to accepted or to attempt to obtain gratification
(ix) Other than legal remunerations
(x) Any valuable thin
(xi) From any person
(xii) Nothing contrary is proved.
Section 20(3) says that “(3) Notwithstanding anything contained in sub-sections (1) 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 inference of corruption may fairly be drawn.”
velmurugan
(Querist) 05 December 2012
My heartfelt thanks goes to all the experts.and i want to register my gratitude here to Shri.Sudhir kumarji for his elaborate and great reply.Sir,One more clarification,please...
In the absence of direct witnesses for transaction and Scientific corroboration(Chemical on the hands of accused) for both demand and acceptance of bribe,can the prosecution prove the following condition:Accused to have accepted or obtained or agreed to accept or to attempt to obtain gratification.because,Any presumption or inference can only be drawn from proven facts,not from other inferences drawn from circumstantial evidences..I will be grateful if u could elaborate on this...Thank you Sir.
Raj Kumar Makkad
(Expert) 05 December 2012
mere presumption shall not work to prove the case of the prosecution as the bribery case should be proved beyond any reasonable doubts.
Sudhir Kumar, Advocate
(Expert) 06 December 2012
when a trap is conducted on the complaint of bribe giver the bribe giver is a witness. He renders the currency for phenolphthalein procedure he allows company the shadow witness.
The case narrated by you is a different one. In this case the bribe giver is not a complainant not a witness. So the forensic test of currency and independent witness with bribe giver is not possible.
There is a weakness of case to the extent that recovery is from scene and not personal possession of the public servant. It is the totality of the facts which can hint how strong this defence could be there. However, if the bribe giver turns up as approved witness (which is possible in such case) then whole defence crumbles.
So it is better to meat nearest available lawyer well versed in PC cases with all relevant papers.
velmurugan
(Querist) 06 December 2012
Thank you for your valuable info and suggestion.Thank you sir.
