The burden of proof under Section 20 of the Prevention of Corruption Act, 1988, cast on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof that rests on the prosecution to prove its case of the receipt of the money as bribe. The accused may rebut the presumption by showing the preponderance of probability in his favour. It is not necessary for him to establish his case beyond a reasonable doubt.
In the case of V.D. Jhingan v. State of U.P., AIR 1966 SC 1762 : (1966) 3 SCR 736 : 1966 Cri LJ 1357, the Supreme Court observed that 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 to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether prosecution has discharged its onus to prove the guilt of the accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under S. 4(1) of the Prevention of Corruption Act, 1947 [equivalent to Section 20(1) of the new Prevention of Corruption Act, 1988]. It is sufficient if the accused person succeeds 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 a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the 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.
The quantum and the nature of proof required to displace this presumption under Section 20 of the PC Act may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise.
The burden on the accused to displace the presumption under Section 20(1) is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused other than as a motive or reward such as is referred to in Section 7 of the PC Act, 1988.
This presumption may be rebutted by the accused not only by any oral testimony or witnesses called on behalf of the accused but also by a statement of the accused under Section 313, Cr.P.C., and by any document produced on his behalf or by the surrounding circumstances.
Rebuttal of the presumption need not be by direct evidence. If the circumstances show that the prosecution version is not correct, the presumption is sufficiently rebutted.
[Note: Contents for this reply have been taken (in modified form) from my book: Prevention of Corruption Act, Second Edition (2009), appx. 2250 pages, published by LexisNexis Butterworths Wadhwa Nagpur, New Delhi (ISBN: 978-81-8038-592-6).]
Dr. Ashok Dhamija is a New Delhi based Supreme Court Advocate and author of law books. Read more about him by clicking here. List of his Forum Replies. List of his other articles. List of his Quora Answers. List of his YouTube Videos.
.
