R S NAYAK Vs. A R ANTULAY

JUDGEMENT

(1.) AGREE with the judgment about to be delivered by mylearned brother Ranganath Misra, but there are some two or three charges inregard to which I should like to make more detailed observations since theyhave not been dealt fully by my learned brother and he has left it to me toconsider them in some detail. Since the genesis of this appeal has been setout by my learned brother at length I do not propose to repeat what has beenso ably said by him and I will confine myself only to the facts relating to the charges which are going to be dealt with by me. But I may be permitted to say a few words in regard to two points which have been discussed by my learned brother in this judgment since they are of some importance and can without impropriety bear further discussion.

(2.) THE first point arises out of a contention raised by the learned counsel appearing on behalf of the first respondent (hereinafter referred to as the 'respondent') that the presumption under S. 4 of the Prevention of Corruption Act, 1947 applies only after a charge is framed against an accused and has no application at the stage when the court is considering the question whether a charge should be framed or not. It is said in geometry that a point has position but no magnitude, but we are constrained to observe that this point raised on behalf of the first respondent has not only no magnitude but has even no position. It is wholly without substance and indeed it is surprising that it should have been raised by the learned counsel appearing on behalf of the first respondent. When the court is considering under S. 245 Ss. (1) of the Code of Criminal Procedure, whether any case has been made out against the accused which if unrebutted would warrant his conviction it is difficult to understand as to how the court can brush aside the presumption under S. 4 of the Prevention of Corruption Act, 1947. Sub-section (1) of S. 4 of that Act provides that where in any trial of an offencepunishable under S. 161 or S. 165 of the Indian Penal Code or of an offence referred to in clause (a) or clause (b) of Ss. (1) of S. 5 of that Act it is proved that an accused has accepted or obtained or has agreed to accept or admitted 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 admitted to obtain, that gretification or that valuable thing as a motive or reward such as is mentioned in S. 161 or as the case may be, without consideration or for a consideration which he knows to be inadequate. When the court is called upon to consider whether a charge should be framed or not the question to which the court has to address itself is whether the evidence led on behalf of the prosecution is such that if unrebutted it would justify the conviction of the accused and the court has, therefore, to examine the evidence as it stands without rebuttal and come to a conclusionwhether on the basis of such evidence the court would convict the accusedand where the offence charged against the accused is under S. 161 orSection 165 or clause (a) or clause (b) of Ss. (1) of S. 5 the court must necessarily apply the presumption under S. 4 while considering whether on the basis of the unrebutted evidence which is before it the court would convict the accused. We do not therefore see any substance in the contention raised on behalf of the first respondent and we must proceed to dispose of this appeal on the basis that even for the purpose of considering whether a charge should beframed or not the presumption under S. 4 must be taken into account.

(3.) THERE was a firm called M/s Nanubhai Jewellers which was in possession of certain ground floor premises situate at 113/115, Mahatma Gandhi Road, Fort, Bombay as a tenant. THERE were various changes in the constitution of this firm from time to time but we are not concerned with these changes in the present appeal. What is material to note is that at the relevant time this firm consisted of Mukesh Dadlani, Lal Chand Rohra, Ramesh Merchant, his father and two other partners. The rent payable by this firm was originally Rs. 3,000.00 per month but under a new agreement of lease dated 27/09/1979 the rent was raised to Rs. 15,000.00 per month in consideration of the landlords giving to the tenant power to sub-let the premises. It seems that since 1979-80 this firm was incurring losses and was not in a position to make use of the premises for its own purposes and hence it decided to sublet the entire premises barring about 500 sq. ft. to Indo-Suez Bank at a monthly rent of Rs. 1,24,120.00 and an agreement of lease was entered into between them on 12/12/1980. But it was not possible for this firm to sub-let the premises to Indo-Suez Bank without a no objection certificate from the Controller of Accommodation in view of the Bombay Land Requisition Act, 1948. The partners of this firm therefore made an application to the Controller of Accommodation on 13/01/1981 pointing out that the Indo-Suez Bank had approached them with a request to allow them to use the premises for the purpose of opening their branch office in Bombay and that it would be advantageous to the country to make it possible for the Indo-Suez Bank to open a branch office and requesting the Controller of Accommodation "to grant the necessary permission.... to permit the Bank to use the premises on sublease basis". Though this application was dated 13/01/1981, it appears from the endorsement made on the application that it was received in the office of the Controller of Accommodation on 11/02/1981. THEREafter, on 19/02/1981 an officer from the office of the Controller of Accommodation visited the premises and certain documents relating to the partnership of M/s Nanubhai Jewellers were handed over by Lal Chand Rohra and the father of Ramesh Merchant to such officer. They also handed over to such officer copies of the rent receipts for November, 1973 and November, 1980 as also also a xerox copy of the registration certificate of the firm under the Bombay Shops and Establishments Act. Ramesh Merchant several .times went to the office of the Controller of Accommodation for no objection certificate but he was told that the application was under process. Now the record shows that on 14/02/1981 a noting was made in the file seeking a direction whether suppressed vacancy inquiry should be made to ascertain whether the premises could be requisitioned as a suppressed vacancy or whether the no objection certificate should be granted. Further inquiry was thereupon madefor the purpose of determining whether there was a suppressed vacancy inrespect of the premises and after such inquiry was completed a furthernoting was made on 2/03/1981 recommending that in view of the facts setout in that noting "it is for orders whether we may consider the request andgrant" the no objection certificate in this case. Shri Rawat, who was anAccommodation Officer, made an endorsement on the foot of his furthernoting pointing out that according to the inquiry made by the office no vacancy had actually occurred at any time in the premises and there was accordingly no suppressed vacancy and moreover only a part of the premises was proposed to be sub-let by the firm of M/s Nanubhai Jewellers and hence the premises could not be requisitioned as a suppressed vacancy and consequently no objection certificate might be granted. The file containing these notings thereafter went to the Additional Chief secretary who also placed his signature below that of Shri Rawat indicating his agreement with the endorsement made by Shri Rawat. The date below the signature of the Additional Chief secretary is a little doubtful but we can safely take it to be 2/03/1981 since there is an endorsement at the bottom of the page showing that the file was received in the Secretariat of Chief secretary on 12/03/1981 and obviously it must have gone to the Secretariat to the Chief Minister after making of the endorsement by the Additional Chief secretary. The page of the file containing the endorsement of Shri Rawat also contains in red ink an endorsement made by the first respondent and this endorsement reads "in view of 'A', 'B' may be done" and below this endorsement is the signature of the first respondent and below that is the date which presently reads 16/3. We shall revert to this endorsement of the first respondent a little later when we examine the arguments urged on behalf of the parties.