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Civil Appeal No. 10234 of 1983.
From the Judgment and Order dated 3.1.19/9 of the Alla habad High Court in Civil Revision No. 3714 of 1978.
K.B. Rohtagi for the Appellant.
R.K. Garg and D.K. Garg for the Respondent.
The Judgment of the Court was delivered by AHMADI, J.
The short question which arises for our consideration in this appeal by special leave is whether a tenant of a premises constructed in 1967 is entitled to the protection of Section 39 of the U.P. Urban Buildings (Regu lation of Letting, Rent and Eviction) Act, 1972 (Act No. 13 of 1972 as amended by Act No. 17 of 1985), hereinafter called 'the Act ', in an eviction suit instituted before the commencement of the Act.
The Act came into force w.e.f.
15th July, 1972 by virtue of the notification issued by the State Government in exercise of power conferred by Sub Section 4 of Section 1 of the Act, vide Notification No. 3409/XXIX 59 72 dated 27th June, 1972 published in the U.P. Government Gazette, Extra, dated 1st July, 1972.
The Act was enacted for inter alia regulation of letting and eviction of tenants from certain classes of buildings situate in urban areas specified in Sub Section (3) of Section 1.
Section 2 indicates the buildings to which the Act shall not apply.
We are concerned with Sub Section (2) of Section 2, the rele vant part whereof reads as under: "Except as provided in sub section (5) of section 12, sub section (1 A) of Section 21, sub section (2) of Section 24, Sections 24 A, 24 B, 24 C or sub section (3) of section 29, nothing in this Act shall apply to building during a period of ten years from the date on which its construction is completed".
Since it is not disputed before us that the construction of the suit property was completed in 1967, we need not set out the provisos and the explanations to the sub section.
Section 3 defines the various expressions used in the Act.
Under 189 clause (a) 'tenant ', in relation to a building means a person by whom its rent is payable and 'building ' according to clause (i) means a residential or non residential roofed structure including any land, garages and out houses appur tenant thereto.
Any person to whom rent is or if the build ing were let, would be, payable, including his agent or attorney or such person, is a 'landlord ' within the meaning of clause (j) of that section.
It would thus seem that but for the exemption granted by Section 2(2), the provisions of the Act would have applied to the letting of the suit prem ises.
The scheme of Section 2 is that buildings referred to in clauses (a) to (f) are exempt from the operation of the Act for all times (subject of course to legislative changes) whereas the exemption granted by Section 2(2) is for a period of ten years from the date of completion of construc tion.
Chapter III regulates to letting.
Section 11 provides that no person shall let any building except in pursuance of an allotment order issued by the District Magistrate under Section 16.
Chapter IV regulates eviction.
Section 20 inter alia prohibits the institution of a suit for eviction of a tenant from any building except on the grounds catalogued in clauses (a) to (g) of sub section (2) thereof.
Section 21 provides for the eviction of a tenant if the building is bonafide required by the landlord for his own use or the use of any of his family member.
The scheme of Chapters III & IV clearly shows that both the letting of and eviction from the buildings to which the Act applies are regulated by the provisions of the Act.
Section 39 of the Act with which we are mainly concerned finds its place in Chapter VII entitled Miscellaneous and Transitional Provisions.
That section reads as under: "Pending suits for eviction relating to building brought under regulation for the first time In any suit for evic tion of a tenant from any building to which the old Act did not apply, pending on the date of commencement of this Act, where the tenant within one month from such date of com mencement or from the date of his knowledge of the pendency of the suit, whichever be later, deposits in the court before which the suit is pending, the entire amount of rent and damages for use and occupation (such damages for use and occupation being calculated at the same rate as rent) to gether with interest thereon at the rate of nine per cent per annum and the landlord 's full cost of the suit, no decree for eviction shall be passed except on any of the 190 grounds mentioned in the proviso to sub section (1) or in clauses (b) to (g) of sub section (2) of Section 20, and parties shall be entitled to make necessary amendment in their pleadings and to adduce additional evidence where necessary.
" This Section carried an explanation which came to be omitted by Section 8(iv) (and be deemed always to have been omitted) of the Civil Laws Amendment Act, 1972.
Section 40 lays down that where an appeal or revision arising out of a suit for eviction of a tenant from any building to which the old Act did not apply is pending on the date of commencement of this Act, it shall be disposed of in accordance with the provi sions of Section 39, which shall mutatis mutandis apply.
The plain reading of Section 39 makes it clear that the said section obliges the court to refuse to pass a decree for eviction, except on any of the grounds mentioned in the proviso to sub section (1) or in clauses (b) to (g) of sub section (2) of Section 20, if the following four require ments are satisfied: (i) the building is one to which the old Act (the U.P. (Temporary) Control of Rent and Eviction Act, 1947 U.P. Act No. III of 1947) did not apply; (ii) the eviction suit must be pending on the date of commencement of the Act i.e., 15th July, 1972: (iii) the tenant deposits in court the entire amount of rent/damages for the use and occupation of the building together with interest at 9% per annum and the landlord 's full cost of the suit; and (iv) such deposit is made within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the eviction suit, whichever is later.
The benefit of Section 39 is extended mutatis mutandis to an appeal or revision arising out of an eviction suit to which the old Act did not apply provided the said appeal or revi sion was pending on the date of commencement of the Act.
On a plain reading of Section 39 it becomes clear that in a suit for eviction to which the said provision applies, the Court trying the suit is 191 precluded from passing a decree for eviction if the tenant deposits in court the entire amount of rent and damages together with interest at 9% per annum and the landlord 's full cost of the suit within the time allowed but this embargo does not apply if eviction is sought on the ground or grounds mentioned in the proviso to Sub section (1) or in clauses (b) to (g) of Sub section (2) of Section 20.
The ground mentioned in the proviso to sub section (1) of Sec tion 20 is determination of tenancy by efflux of time where the duration of tenancy is fixed under a compromise or adjustment arrived at with reference to a suit, appeal, revision or execution proceeding which is recorded in Court or is otherwise reduced to writing and signed by the tenant.
Sub section (2) of Section 20 enumerates the grounds in clauses (a) to (g) on which an eviction suit can be rounded against a tenant.
Clause (a) permits the institution of a suit for eviction if the tenant is in arrears of rent for not less than four months and has failed to pay the same within one month from the date of service of a notice of demand upon him.
The grounds in clauses (b) to (g) are other than arrears of rent.
From the fact that a suit rounded on anyone or more of the grounds set out in the proviso to sub section (1) and clauses (b) to (g) of sub section (2) of Section 20 is exempt from the operation of Section 39, it would seem that the legislature desired to grant protection from eviction where the same is sought on the sole ground of arrears of rent.
That is why in the exemption clause con tained in Section 39, clause (a) to sub section (2) of Section 20 which permits eviction on the ground of arrears of rent is deliberately and intentionally excluded and an embargo is created against the passing of an eviction decree if the tenant deposits in court within the time allowed the entire arrears of rent together with interest and costs.
If the suit is on anyone or more of the exempted grounds, the landlord is permitted to proceed with the same, if necessary by effecting an amendment in the pleading and by adducing additional evidence.
Such a suit may be continued and if the ground or grounds pleaded is/are proved, the court is enti tled to grant eviction.
It, therefore, seems clear to us that the legislature intended to protect eviction of a tenant on the ground of arrears of rent if the tenant com plied with the conditions of Section 39.
In the present proceedings it is not disputed that the construction of the demised premises was completed in 1967 and the letting had taken place in the same year.
It is also not disputed that immediately on the completion of ten years the tenant deposited on 2nd September, 1977 an amount of Rs.4,005 being the arrears of rent inclusive of interest and cost.
It is not disputed that this payment was made within one month after the expiry of the period of ten years stipu lated in 192 Section 2(2) of the Act to take advantage of Section 39 of the Act.
The eviction suit was admittedly filed on 27th May, 1972 i.e. before the commencement of the Act i.e. 15th July, 1972.
There is also no dispute that the provisions of the old Act did not apply to the suit.
On these undisputed facts the trial court gave the benefit of Section 39 and refused to order ejectment of the tenant.
The landlord filed a revision application which was rejected by the Second Addi tional District Judge, Bulandshahr, on 15th July, 1978.
The High Court rejected the landlord 's further revision applica tion on the ground that the question was concluded by the decision in R.D. Ram Nath & Co. & Anr.
vs Girdhari Lal & Anr.
, It is against the said decision that the present appeal is preferred.
The question then is wheth er or not the provision of Section 39 of the Act is attract ed in the backdrop of the above facts.
We may now consider the case law on the point to which our attention was called.
In Ram Swaroop Rai vs Lilavathi, ; 3 SCC 452, this Court while con struing section 2(2) of the Act observed that the burden is on the landlord to show that his case falls within the exemption engrafted in the said sub Section.
In the present case, since the facts are not in dispute the question of onus recedes in the background.
In Om Prakash Gupta etc.
vs Dig Vijen: drapal Gupta etc.
; , , a three Judge Bench had to consider the effect of section 2(2) read with section 39 of the Act.
In that case, an eviction suit was filed against the appellant tenant on the ground that the provisions of the Act did not apply to the demised shop and the tenant was therefore liable to be evicted.
The Trial Court decreed the suit on the finding that the construction of the suit shop was completed in 1967 and since 10 years had not elapsed from the date of completion of the construc tion the provisions of the Act had no application.
The tenant carried the matter in revision but the judgment and decree of the Trial Court was substantially maintained.
The tenant thereupon moved the High Court under section 115, C.P.C. The learned Single Judge who heard the revision remitted the matter to the Trial Court for recording a finding as to on what date the construction of the building could be said to have been completed within the meaning of section 2(2) read with Explanation I(a) thereto.
The Trial Court returned a finding to the effect that the construction of the disputed shop must be taken to have been completed on the date of the first assessment, i.e. 1st April, 1968, within the meaning of the said provision.
The tenant chal lenged the finding on the ground that the date of occupation should have been taken to be the date of completion of the construction and not the date of the first assessment.
The Division 193 Bench to which the case was referred concluded that the construction of the shop must be deemed to have been com pleted on 1st April, 1968 i.e. at the date of the first assessment and not at the date of actual occupation and hence the provisions of the Act had no application to the building till the date of the decision of the revision application on 23rd March, 1978 as the period of 10 years expired later on 31st March, 1978.
This Court upheld the finding that the date of construction must be taken, as the date of first assessment i.e. 1st April, 1968 and not the date of actual occupation.
To overcome this difficulty it was contended on behalf of the tenant that on a correct reading of section 2(2) the exemption engrafted therein would not embrace buildings constructed prior to the en forcement of the Act.
This Court construing the language of section 2(2) of the Act held that the sub section nowhere provided that the building should have been constructed after the commencement of the Act; to so interpret it would tantamount to adding words in it which was not permissible.
This Court, therefore, negatived the contention that the exemption under the sub section did not embrace buildings constructed before the Act came into force.
As pointed out earlier the revision application was decided on 23rd March, 1978 whereas the period of 10 years from the date of comple tion of the construction i.e. 1st April, 1968 was to end on 31st March, 1978 i.e. a week later.
Section 39 of the Act, therefore, clearly did not apply in the facts of that case.
Secondly, it was found that the suit was instituted on 23rd March, 1974 long after the commencement of the Act and was therefore not pending on 15th July, 1972 to attract the application of Section 39 of the Act.
For these reasons, this Court came to the conclusion that the appellant Om Prakash was not entitled to tile protection of section 39 of tile Act.
Two features which distinguish this case from the case on hand are: (i) that the revision application was disposed of by the High Court before the expiry of the moratorium period of 10 years granted by section 2(2) of the Act; and (ii) the suit having been filed long after the commencement of the Act on 15th July, 1972 could not be said to be pending at the date of the commencement of the Act to enable the tenant to seek redress under section 39 of the Act.
In Vineet Kumar vs Mangal Sain Wadhera, ; , an , eviction suit was filed on the ground of arrears of rent and damages for use and occupation of the demised premises pendente lite.
The tenant was inducted in the building stated to have been constructed in 1971 on 7th February, 1972, on a monthly rent of Rs.250.
The building in suit was assessed to house and water tax on 1st October, 197 1.
The tenant defaulted in the payment of rent 'despite service of notice dated 24th 194 March, 1977.
Admittedly, the suit was filed after the com mencement of the Act.
The point for consideration was wheth er the building which was not 10 years ' old on the date of the suit and was therefore exempted from the operation of the Act, would be governed by it on the expiry of the period of 10 years pendente lite.
Dealing with this contention this Court observed in paragraph 13 of the judgment as under: "The moment a building becomes ten years old to be reckoned from the date of completion, the new Rent Act would become applicable.
" The decision in Om Prakash Gupta 's case (supra) was rightly distinguished on the ground that it was not neces sary in that case to deal with the question whether the tenant would be entitled to the benefit of Section 39 as the building had not become ten years old when the revision was disposed of by the High Court on 23rd March, 1978.
Dealing next with the contention that the Court had to decide the case on the basis of the cause of action that had accrued before the institution of the suit and not on a new cause of action, this Court, relying on the observations to the effect that subsequent developments can be looked into made in paragraph 14 of the decision in Pasupuleti Venkates warlu vs
Motor and General Traders; , , ob served as under: "Normally amendment is not allowed if it changes the cause of action.
But it is well recognised that where the amend ment does not constitute an addition of a new cause of action, or raise a new case, but amounts to no more than adding to the facts already on the record, the amendment would be allowed even after the statutory period of limita tion.
The question in the present case is whether by seeking the benefit of Section 39 of the new Act there is a change in the cause of action." After referring to the case of A.K. Gupta & Sons vs Damodar Valley Corporation, ; , this Court further observed: "The appellant in the present case only seeks the protection of the new Rent Act which became applicable to the premises in question during the pendency of the litigation.
We see no reason why the benefit of the new Rent Act be 195 not given to the appellant.
Section 20 of the new Rent Act 'provides a bar to a suit for eviction of a tenant except on the specified grounds as provided in the section.
Subsection (4) of Section 20 stipulates that in any suit for eviction on the grounds mentioned in clauses (a) to sub section (2), viz. the arrears of rent, if at the first hearing of the suit the tenant in default pays all arrears of rent to the landlord or deposits in court the entire amount of rent and damages for use and occupation of the building due from him, such damages for use and occupation being calculated at the same rate as rent together with interest thereon at the rate of nine per cent per annum and the landlord 's cost of the suit in respect thereof after deducting therefrom any amount already deposited by the tenant under sub section (1) of Section 30, the court may, in lieu of passing a decree for eviction on that ground, pass an order relieving the tenant against his liability for eviction on that ground.
Sections 39 and 40 of the new Rent Act also indicate that the benefit of the new Act will be given to the tenant if the conditions contemplated in those sections are satisfied.
Section 39 also indicates that the parties are entitled to make neces sary amendment in their pleadings and to adduce additional evidence where necessary.
" On this line of reason this Court set aside the judgment and decree of the High Court insofar as it related to evic tion.
We find, with respect, that Their Lordships committed an error in overlooking the text of Section 39 of the Act.
That section in terms says that the suit must be pending at the commencement of the Act to seek the benefit of that provi sion.
Admittedly, the suit in question was filed after the commencement of the Act and hence the tenant was not enti tled to the benefit of Section 39 of the Act.
But that apart, in a subsequent decision of this Court in Nand Ki shore Marwah vs Samundri Devi, ; , this Court dissented from the view in Vineet Kumar 's case on the ground that the attention of the Court was not drawn to Om Prakash Gupta 's case (supra) which specifically considered the provisions of the Act and in particular the language of Section 39 of the Act to point out that in order to attract that provision it must be shown that the suit was pending at the commencement of the Act i.e. on 15th July, 1975.
Refer ring to Section 20 of the Act, which bars institution of a suit for eviction of a tenant except on grounds specified in clauses (a) to (g) this Court observed as under: 196 "This clearly indicates that the restriction put under Section 20 is to the institution of the suit itself and therefore it is clear that if the provisions of this Act applied then no suit for eviction can be instituted except on the ground 'specified in the sub sections of this sec tion.
Keeping in view the language of this section if we examine the provisions contained in sub section (2) of Section (2) it will be clear that for a newly constructed building the provisions of this Act will not apply for 10 years and therefore so far as the restriction under Section 20 is concerned they will not apply and therefore it is clear that within 10 years as provided for in sub section (2) of Section 2 restriction on the institution of suit as provided for in Section 20 subsection (1) quoted above will not be applicable and it is thus clear that during the pendency of the litigation even if 10 years expired the restriction will not be attracted as the suit has been instituted within 10 years and therefore restriction as provided for in Section 20 cannot be attracted.
" It may with respect, be pointed out that the comment that the Court 's attention was drawn to Om Prakash Gupta 's case is not correct as this case is specifically mentioned in paragraph 14 of the judgment in that case.
Lastly, in Atma Ram Mittal vs Ishwar Singh Punia, ; , the appellant landlord had filed an eviction suit in respect of a shop which had been rented to the respondent in 1978.
The suit was filed on the ground that the tenant was in arrears of rent from ist December, 1981 to 31st May, 1982 and the tenancy had been duly terminated by a notice.
The suit was filed under sub section (3) of Section 1 of the Haryana Urban (Control of Rent and Eviction) Act, 1973.
That sub section provided that "nothing in the Act shall apply to any building the construction of which is completed on or after the commencement of this Act for a period of ten years from the date of its completion".
Section 13(1) enumerated the usual grounds on which possession of a building or land could be obtained from a tenant.
In November 1984, the tenant applied for dismissal of the suit on the ground that the moratorium period of 10 years expired in June/984 since admittedly the demised shop was constructed sometime in June 1974.
Quoting the following passage from Ram Swaroop Rai 's, case (supra): 197 "The legislature found that rent control law had a chilling effect on new building construction, and so, to encourage more building operations, amended the statute to release, from the shackles of legislative restriction, 'new construc tions ' for a period of ten years.
So much so, a landlord who had let out his new building could recover possession with out impediment if he instituted such proceeding within ten years of completion.
" this Court held as under: "It is well settled that no man should suffer because of the fault of the court or delay in the procedure.
Broom has stated the maxim "actus curiae neminem gravabit" an act of court shall prejudice no man.
Therefore, having regard to the time normally consumed for adjudication, the ten years ' exemption or holiday from the application of the Rent Act would become illusory, if the suit has to be filed within that time and be disposed of finally.
It is common knowledge that unless a suit is instituted soon after the date of letting it would never be disposed of within ten years and even then within that time it may not be disposed of.
That will make the ten years holiday from the Rent Act illusory and provide no incentive to the landlords to build new houses to solve problem of shortages of houses.
The purpose of legislation would thus be defeated.
Purposive interpreta tion in a social amelioration legislation is an imperative irrespective of anything else.
" Proceeding further, this Court said: "We are clearly of the opinion that having regard to the language we must find the reason and the spirit of the law.
If the immunity from the operation of the Rent Act is made and depended upon the ultimate disposal of the case within the period of exemption of ten years which is in reality an impossibility, then there would be empty reasons.
In our opinion, bearing in mind the well settled principles that the rights of the parties crystallise to the date of the institution of the suit as enunciated by this Court in Om Prakash Gupta vs Digviiendrapal Gupta, the meaningful con struc 198 tion must be that the exemption would apply for a period of ten years and will continue to be available until suit is disposed of or adjudicated.
Such suit or proceeding must be instituted within the stipulated period of ten years.
Once rights crystallise the adjudication must be in accordance with law.
" In order to appreciate the controversy in the correct perspective it would not be out of place to notice the legislative changes.
During the second world war certain orders were issued under the Defence of India Rules, 1939, relating to the control and letting of accommodations to cope with the paucity of accommodation.
This was followed by an ordinance promulgated in 1946 which was repealed by the U.P. (Temporary) Control of Rent and Eviction Act, 1947 described as the Old Act by Section 3(h) of the Act.
The measure which was intended to be of a temporary character only continued till the passing of the Act in 1972.
When the old Act replaced the 1946 ordinance, the expectation was that the acute shortage of accommodation was only a tempo rary feature and would disappear with the passage of time.
The hope was belied and the stringent restrictions placed on the landlord 's rights in the matter of fixation and recovery of rent and eviction from the rented premises had to be continued indefinitely.
These restrictions discouraged building activity which added to the already serious housing problem.
There was an urgent need to provide incentives and thereby encourage new constructions.
With that in view Section 2(2) provided that nothing in the Act shall apply to a building during a period of ten years from the date on which its construction is completed.
In other words the legislature has relieved the owner of a new building from the restrictive provisions relating to rent, etc., contained in Sections 4 to 9 of the Act.
So also such owners are granted a holiday or recess of ten years from the restric tive provisions regulating letting (Chapter III) and Evic tion (Chapter IV) contained in the Act.
This freedom from the operation of the Act for ten years is given for the obvious purpose of encouraging building activity to ease the problem of scarcity of accommodation.
The provisions of the Act in this behalf must, therefore, be understood in this background.
Section 2(2) in terms says that the provisions of the Act will not apply to new constructions for a period of ten years from the date of completion of the construction.
Read positively it means that the Act will apply to such build ings on the expiry of the recess period.
But how are suits already filed during the recess period to be dealt with? Does 199 the Act offer any clue in this behalf? In this connection the only provisions which come to mind are sections 39 and 40 of the Act.
Section 39 deals with suits pending on the date of commencement of the Act.
Section 40 extends protec tion to an appeal or revision pending on the date of com mencement of the Act provided it has arisen out of an evic tion suit filed against a tenant to which the old Act did not apply.
Such an appeal or revision has to be disposed of in the same manner as the suit is required to be dealt with under Section 39 of the Act.
In order to secure the benefit of Section 39 or 40 it must be shown that the suit, appeal or revision was pending on the date of commencement of the Act.
Secondly, if the suit is rounded on the allegation of nonpayment of rent, the tenant must, within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the suit, deposit in court the entire amount of rent and damages for use and occupation of the building with interest as prescribed and landlord 's entire cost of the suit, to take the benefit of the said provision.
If both these conditions are satisfied, the law, Section 39.
mandates that no decree for eviction shall be passed except on any of the grounds specified in the proviso to sub section (1) or clauses (b) to (g) of sub section (2) of Section 20 of the Act.
Similarly Section 40 lays down that if an appeal or revision (arising out of a suit for eviction of a tenant from any building to which the old Act does not apply) is pending on the date of commencement of the Act, the benefit of Section 39 will be available to the tenant.
What these two provisions emphasise is that in order to avail of the benefit engrafted therein, the proceedings i.e., the suit, appeal or revision application must be pending at the date of commencement of.
the Act, i.e., 15th July, 1972, and the tenant must have deposited the arrears of rent and damages together with interest and full cost of the landlord in the court within one month from the date of such commencement.
Once the four conditions of Section 39 set out in the earlier part of this judgment are satisfied, the court is debarred from passing a decree in ejectment except on any of the grounds mentioned in the proviso to sub section (1) or in clauses (b) to (g) of sub section (2) of Section 20 of the Act.
Therefore, even in a suit, appeal or revision application pending at the date of commencement of the Act, a decree for eviction can be passed if the case is brought within the exemption clause of Section 39 not withstanding the fact that the tenant has deposited the full amount of arrears of rent and damages together with interest and cost as required by that section.
It, therefore, seems clear to us on the plain language of Section 39 of the Act that the legislature desired to grant protection from evic tion where the same was sought on the sole ground of arrears of rent.
In cases falling within the exemption clauses of that section, the legislature has 200 itself permitted the landlord to proceed with the suit and claim eviction on any of the grounds enumerated in the proviso to sub section (1) or in clauses (b) to (g) of sub section (2) of Section 20 of the Act, if necessary by making the required amendment in the pleadings and by adducing additional evidence where necessary.
It therefore seems to us that the legislature desired to limit the scope of the application of Sections 39 and 40 to suits, appeals and revisions pending on the date of com mencement of the Act, i.e. 15th July 1972, relating to buildings to which the old Act did not apply and to which the new Act was to apply forthwith and not at a later date.
This is clear from the fact that the section contemplates deposit of arrears of rent and damages together with inter est and cost within one month from "such date of commence ment" meaning the date of commencement of the Act.
To put it differently the section expects the tenant to make the deposit within one month from 15th July, 1972.
This may not be possible unless the Act is to apply to the building forthwith.
Of course the benefit of an extended date is given to those cases where the knowledge about the pendency of the proceedings is gained after 15th July, 1972.
For example where a suit is actually filed before the commence ment of the Act but the summons of the suit is served in October 1972, the tenant would be entitled to make the deposit within one month from the service of the summons to avail of the benefit of this provision.
So also it can apply to cases where the tenant had died before the Act came into force or before the expiry of one month from the date of commencement of the Act and the landlord took time to bring the legal representative on record; in which case the legal representative would be entitled to seek the benefit from the date of knowledge.
Of course this benefit would not be available where the tenant dies after the expiry of the period within which the right is to be exercised.
The same would be the case in the case of an appeal or revision application.
It seems to us that the legislature intended to give the benefit of Sections 39 and 40 to suits, appeals or revisions which were pending on 15th July, 1972 and in which the deposit came to be made within one month from that date.
The expression such preceding the word 'commencement ' is clearly suggestive of the fact that it has reference to the date of commencement of the Act and the payment must be made within one month from such commencement.
Unless we give such a restricted meaning to the section we would not be able to advance the legislative intent to relieve the landlords of new buildings from the rigours of the Act.
This interpreta tion is also in tune with the ratio in Ram Swaroop Rai 's case (supra).
201 was argued that the words 'commencement of this Act ' should be construed to mean the date on which the moratorium period expired and the Act became applicable to the demised buildings.
Such a view would require this Court to give different meanings to the same expression appearing at two places in the same section.
The words 'on the date of com mencement of this Act ' in relation to the pendency of the suit would mean 15th July, 1972 as held in Om Prakash Gupta (supra) but the words 'from such date of commencement ' appearing immediately thereafter in relation to the deposit to be made would have to be construed as the date of actual application of the act at a date subsequent to 15th July, 1972.
Ordinarily the rule of construction is that the same expression where it appears more than once in the same statute, more so in the same provision, must receive the same meaning unless the context suggests otherwise Besides, such an interpretation would render the use of prefix 'such ' before the word 'commencement ' redundant.
Thirdly such an interpretation would run counter to the view taken by this Court in Atma Ram Mittal 's case (supra) wherein it was head that no man can be made to suffer because of the court 's fault or court 's delay in the disposal of the suit.
To put it differently if the suit could be disposed of within the period of ten years, the tenant would not be entitled to the protection of Section 39 but if the suit is prolonged beyond ten years the tenant would be entitled to such protection.
Such an interpretation would encourage the tenant to pro tract the litigation and if he succeeds in delaying the disposal of the suit till the expiry of ten years he would secure the benefit of Section 39, otherwise not.
We are, therefore, of the opinion that it is not possible to uphold the argument.
In the above view of the matter we are of the opinion that the courts below committed an error in giving the benefit of Section 39 of the Act to the tenant since admit tedly the tenant could not and had not made the deposit within one month from the date of commencement of the Act on 15th July, 1972 but had made the deposit within a month after the moratorium period expired in 1977.
As stated above the legislature intended to limit the application of Sec tions 39 and 40 of the Act to cases where the Act became applicable immediately and the deposit could be made within one month from its applicability and not to cases where the moratorium period was to expire long thereafter.
For the reasons stated above we think the courts below were wrong in the view they took.
We, therefore, set aside the judgment and decree of the courts below by allowing this appeal.
Having regard 202 to the fact that the respondent will have to look for alter native accommodation we give him a year 's time to vacate on condition that he pays all the arrears of rent and damages, if due, within one month and files an undertaking in the usual form within even time.
In the circumstances of the case we think the parties may be left to bear their own costs.
R.S.S. appeal allowed.

Output:
On the completion of construction of the demised prem ises in 1967, the appellant landlord had let it out to the respondent tenant in the same year.
Later, on 27th May, 1972 the landlord filed the eviction suit against the tenant.
On 15th July, 1972 the U.P. Urban Buildings (Regulation of Letting, Rent and Eviction) Act.
1972 came into force.
The tenant deposited in the Court on 2nd September, 1977 an amount of Rs.4005 being the arrears of rent inclusive of interest and cost.
This payment was made within one month after the expiry of the period of ten years stipulated in section 2(2) of the Act to take advantage of section 39 of the Act.
Section 2(2) inter alia provided that nothing in the Act shall apply to a building for a period of ten years from the date on which its construction was completed, while section 39 dealt with pending suits for eviction relating to building brought under the regulation for the first time.
The Trial Court gave the benefit of section 39 and refused to order ejectment of the tenant.
The landlord 's revision application was rejected by the Additional District Judge, and his further revision was dismissed by the High Court.
Allowing the appeal, this Court.
, HELD: (1) In order to secure the benefit of Section 39 or 40 it must be shown that the suit, appeal or revision was pending on the date of commencement of the Act.
Secondly, if the suit is rounded on the allegation of non payment of rent, the tenant must, within one month from the date of commencement of the Act or from the date of knowledge of the pendency of the suit, deposit in court the entire amount of rent and damages for use and occupation of the building with interest as prescribed and landlord 's entire cost of the suit, to take the benefit of 187 the said provision.
If both these conditions are satisfied, the law, section 39, mandates that no decree for eviction shall be passed except on any of the grounds specified in the proviso to sub section (1) or clauses (b) to (g) of sub section (2) of section 20 of the Act.
Similarly, section 40 lays down that if an appeal or revision (arising out of a suit for eviction of a tenant from any building to which the old Act does not apply) is pending on the date of commence ment of the Act, the benefit of section 39 will be available to the tenant.
[199B E] The legislature intended to give the benefit of sec tions 39 and 40 to suit, appeals or revisions which were pending on 15th July, 1972 and in which the deposit came to be made within one month from that date.
The expression 'such ' preceding the word 'commencement ' is clearly sugges tive of the fact that it has reference to the date of com mencement of the Act and the payment must be made within one month from such commencement.
unless such a restricted meaning to the section is given, it would not be able to advance the legislative intent to relieve the landlords of new buildings from the rigours of the Act.
[200F H] (3) The Legislature desired to limit the scope of the application of sections 39 and 40 to suits, appeals and revisions pending on the date of commencement of the Act, i.e., 15th July, 1972, relating to buildings to which the old Act did not apply and to which the new Act was to apply forthwith and not at a later date.
This is clear from the fact that the section contemplates deposit of arrears to rent and damages together with interest and cost within one month from 'such date of commencement ' meaning the date of commencement of the Act.
[200B C] R.D. Ram Nath & Co. & Anr.
vs Girdhari Lal & Anr., ; Ram Swaroop Rai vs Lilavathi, ; 3 SCC 452; Om Prakash Gupta etc.
vs Dig Vijen drapal Gupta etc.
; , ; Vineet Kumar vs Mangal Sain Wadhera, ; ; Pasupuleti Venkateswarlu vs Motor and General Traders, ; A.K. Gupta & Sons vs Damodar Valley Corporation, [1966] I SCR 796; Nand Kishore Marwah vs Samundri Devi, ; and Atma Ram Mittal vs Ishwar Singh Punia, ; , referred to.
(4) The Courts below committed an error in giving the benefit of section 39 of the Act to the tenant since admit tedly the tenant could not and had not made the deposit within one month from the date of commencement of the Act on 15th July, 1972 but had made the deposit 188 SUPREME COURT REPORTS [1990] 1 S.C.R. within a month after the moratorium period expired in 1977.
[201F]


Input:
N: Criminal Appeal No. 116 of 1971.
Appeal by special leave from the Judgement and order dated the 27th November, 1970 of the Delhi High Court in Crl.
Appeal No. 35 of 197().
Uma Datta, for the appellant.
Govind Das and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by SARKARIA, J.
This appeal by special leave is directed against a judgment of the High Court of Delhi upholding the conviction of the appellant under section 5(2) read with section 5(1) (d) of the Prevention of Corruption Act and section 161, Penal Code, recorded by the Special Judge, Delhi.
The facts of the prosecution case are as follows: The complainant, section K. Jain, manufactures rubber motor parts in his factory at Shahdara.
On his application, the Delhi Electric Supply Undertaking at Gandhinagar sanctioned a power connection for his factory. 'l` 'he complainant deposited the estimate of expenses under the 9 L839 Sup.
CI/75 350 terms of the sanction.
In spite of it, for a period of four months, no A steps were taken by the employees of the Undertaking to instal the poles and give the connection.
section P. Gupta, an Inspector of the Undertaking approached the complainant and solicited a bribe of Rs. 125/ in consideration of giving the connection.
lt was settled that Rs. 25/ would be paid on June 2(), 1968 and the balance of Rs. 100/ after the electric connection.
The complainant had no intention to pay the bribe.
Consequently, he contacted section K. Katoch, Deputy Superintendent of the Anti Corruption Police on June 20, 1968 at about 1 p.m. and apprised the latter about the demand of the bribe by Inspector Gupta.
The Deputy Superintendent recorded the complainant 's statement, exhibit P.W. l/A.
He then co opted Daya Nand Dua (PW2) and Bharat Prakash Khurana (PW 3), two clerks from the office of the Deputy Commissioner, and formulated a scheme for entrapping Gupta. 'the Police party reached the factory of the complainant at about 3.05 p.m.
The complainant and the Panch witnesses went inside while the Police officers waited outside.
The complainant received a message from Gupta through a Lineman that instead(l of the 20th, he would be coming on the following, day, that the installation of poles at the site had commenced and the complainant would be required to pay more amount.
The complainant conveyed this information to D.S.P. Katoch.
On June 21, 1968, at about 10.15 a.m., Gupta came to the factory, along with his gang of labourers and started the installation work.
Gupta informed the complainant that he would return to the factory either personally or send somebody else to collect the amount of Rs. 100/ at about 2 p.m.
The complainant passed on this information also, to the D.S.P. Thereafter the D.S.P. along with the aforesaid witnesses and others came to the complainant at about 11.30 a.m. and settled the details of the trap.
The complainant produced one currency note of the denomination of Rs. 100/ .
The D.S.P. noted its No. and.returned it to the complainant with the direction that he should pay it to Gupta.
Gupta however did not turn up at 2 p.m.
Instead, the appellant, a permanent labourer working under Gupta, came to the factory and told the complainant that he had been sent by Inspector Gupta and that the money be given to him.
The complainant said that the appellant should send Gupta to receive the money.
The appellant reiterated that he had been deputed by Gupta to collect the money and the same be given to him.
Thereupon the complainant handed over the currency Note of Rs. 100/ (exhibit P l) to the appellant in the immediate presence of P.Ws. 2 and 3.
The appellant put the note in the pocket of his pants.
On receiving the agreed signal, the D.S.P. and his companions rushed in and recovered the currency note (exhibit P l) from the person of the appellant.
The D.S.P. then sent a report to the Police Station on the basis of which a case was registered.
The appellant was arrested.
Subsequently, on 22 6 1968, Gupta was also arrested.
After obtaining the necessary sanction, the appellant and Gupta both were sent up for trial before the Special Judge, Delhi who acquitted Gupta but convicted the appellant and sentenced him to one year 's rigorous imprisonment.
Examined under section 342, Cr.
P.C. the appellant admitted that at the material time he was a permanent labourer (Mazdoor) of the D.E.S.U. 351 working in Shahdara Zone.
He gave this account of the circumstances in which he had received the currency note (exhibit Pl) from the complainant: "At about 12 30, I had come down from the first floor of my office and was going to my house to take my meal in the Hotel.
I was called by Gupta.
He was standing near the boundary wall.
He inquired from mc as to where I was going.
l told him that l was going to take my food.
He directed me that after taking my food I should visit the complainant s factory where the labour was working and told me to ask Jain to pay the money which Guptaji had demanded.
I did not know what sort of money it was and for what purpose it was to be paid by section K. Jain and to be taken by Gupta.
accused.
One Mitter Sell was also present at that time when this talk took place between me and Gupta accused.
I accordingly, after taking my food went to the complainant s factory and checked the work of the labour and then went to the complainant and asked him to pay me the money which had been demanded by Guptaji.
Complainant told me to send Guptaji but I told him that he had asked me to bring the money.
He therefore paid me a, currency note of Rs. 100/ without disclosing anything that this was bribe money to be paid to Gupta co accused.
" He further admitted that soon after the collection of this amount from the complainant, the D.S.P. came there with his party and recovered the same currency note from his possession.
He added that he was only a labourer and was not in a position to show any favour, whatever, to the complainant.
He did not know that the note was bribe money.
He claimed to be all innocent carrier.
In defence, he examined Mitter Sen (DW 1) who corroborated the appellant 's version as to how Gupta had instructed the appellant to collect and bring the money from the complainant.
Two charges, one under section 5(1) (d) read with section 5(2) of the Prevention of Corruption Act and the other under section 161, Penal Code were framed against the appellant.
The charges were in the alternative and it was stated therein that the money was obtained by him either for him self or for Gupta, or for both.
The courts below have convicted the appellant mainly on the ground that proof of receipt of Rs. 100/ (currency note) by the appellant from the complainant raises a presumption under section 4(1) of the Prevention of Corruption Act against him and the appellant has not been able to rebut that presumption.
Section 4(1) of the Prevention of Corruption Act reads: "Wherein any trial of an offence punishable under section 161 or section 165 of the Indian PenaI Code (or of an offence referred to in clause (a) or clause (b) of sub section (1) of section 5 of this Act punishable under sub section
(2) thereof, it is proved that an accused person has accepted or obtained, or 352 has agreed to accept or attempt to obtain, for himself or for A 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 the said section 161 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.
" From a reading of the above provision it is clear that its operation, in terms, is confined to any trial of an offence punishable under section 161 or section 165, Penal Code or under clause (a) or (b) of section 5(1) read with sub section (2) of that section of the Act.
If at such a trial, the prosecution proves that the accused has accepted or obtained gratification other than legal remuneration, the court has to presume the existence of the further fact in support of the prosecution case, viz., that the gratification was accepted or obtained by the accused as a motive or reward such as mentioned in section 161, Penal Code.
The presumption however, is not absolute.
It is rebuttable.
The accused can prove the contrary.
The quantum and the nature of proof required to displace this presumption 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.
But the degree and the character of the burden of proof which section 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under section 101, Evidence Act rests on the prosecution.
While the mere plausibility of an explanation given by the accused in his examination under section 342, Cr.
P.C. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the record, in its totality, renders the existence of the fact presumed, improbable.
In other words, the accused may rebut the presumption by showing a mere preponderence of probability in his favour; it is not necessary for him lo establish his case beyond a reasonable doubt see Mahesh Prasad Gupta vs State of Rajasthan(1).
Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under section 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under section S (1) (2) of the Prevention of Corruption Act and section 161, Penal Code.
The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it.
If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still born.
Let us now consider the facts of the present case in the light of the principles enunciated above.
The testimony of its star witness, section K. (1) A. I. R. 353 Jain (P.W. 1) is that it was Inspector Gupta who had demanded that money as a motive or reward tor expediting the installation of the power connection and that the money was handed over to the appellant only for transmission to Gupta in pursuance of the latter 's instructions given to the complainant earlier in the morning.
It is not the case of the complainant that the appellant had ever demanded any bribe from the complainant, or that the appellant was present on any occasion on which Gupta had demanded the bribe.
Nor has it been shown by the prosecution that the appellant was in any way officially concerned with the installation of the poles or the giving of the electric connection.
At the material time according to the appellant he was working as a mere labourer or Mazdoor in the first floor of the D.E.S.U. Office at Shahdara.
This fact is not controverted by the prosecution.
Of course, it is in evidence that on coming to the factory of the complainant at about 2 P.M., the appellant first went to see the labour working at the installation site and then went to the complainant to receive the money saving that he has been sent by Gupta to fetch it.
Mr. Gobind Das, the learned Counsel for the State contends that this conduct of the appellant in checking the labour, showed that he was not an innocent carrier of the money for Gupta but knew that it was being obtained as a bribe in connection with the installation of the power connection.
In any case, maintains the Counsel the appellant was guilty of abetment of an offence under sec, 161 Penal Code and section 5 of the Act.
We are unable to accede to this contention.
In our opinion, this Act of the appellant was a neutral circumstance.
It was not indicative of a guilty mind.
The appellant explained that he had checked the labour working at site because he had been asked to do so by Inspector Gupta.
This conduct of the appellant, therefore, was no ground to hold that he had received the G.C. Note of Rs. 100/ with the requisite mens rea.
Evidently in collecting this currency note from the complainant he was Acting only as an innocent tool of Gupta.
He was a mere labourer.
Even in that humble position, he was not a member of the gang working at the installation site in the factory of the complainant.
He was not concerned ill his official capacity with the installation work or the giving of power connection.
Being an unconcerned menial, he was incapable of showing any favour or rendering any service to the complainant in connection with his official duties.
One of the essential ingredients of the offence under section 161, I.P.C. with which the appellant stands charged is, that the gratification must have been received by the accused as "a motive or reward" for committing an act or omission in connection with his official functions.
lt must be shown that there was an understanding that the bribe was given in consideration to some official act or conduct.
It is true that in law the incapacity of the government servant to show any favour or render any service in connection with his official duties does not necessarily take the case out of the mischief of these penal provisions.
Nevertheless, it is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward for doing or for hearing to do any official act or for showing any favour or disfavour in the exercise of his official functions.
This question as to whether the government servant receiving the money 354 had the requisite incriminatory motive is one of fact.
Could it be reasonably said in the circumstances of the instant case that the money was handed over to the appellant or received by him as a motive or reward such as mentioned in section 161, Penal Code ? It is nobody 's case that while collecting the sum of Rs, 100/ , the appellant made any representation, claim or promise, whatever, that he would either himself or through Gupta get an official act done for the complainant.
Indeed, a prudent businessman like Jain would never pay such a substantial amount as a bribe to a mere Class IV servant in consideration of any promise of favour or service held out by the latter.
Such a tall claim or promise to do favour or service by a menial would be manifestly quixotic.
It would not pass muster.
Indeed the complainant did not hand over the money till he after repeated enquiry, was convinced that the appellant was asking for money not for himself but for Gupta and had been sent by the latter to collect an(l fetch it from the complainant.
The conduct attributed by P.W. 1 to the appellant was not incompatible with the role of an innocent carrier.
Thus, paradoxical as it may seem, the very story propounded by the complainant (P.W. 1) negates the presumption, nipping it as it were in the bud.
Be that as it may this statutory presumption being antithetical to the prosecution story, could not be availed of by the prosecution.
This being the position, the appellant could not be held guilty of the charge with the aid of section 4(1) of the Act.
Nor can the appellant be held guilty of abetting the alleged attempt made by Gupta to obtain the illegal gratification.
Intention to aid The commission of the crime, is the gist of the offence of abetment by aid.
Such intention, on the part of the appellant was lacking in this case.
Moreover, Gupta, the principal, has been acquitted and exonerated of committing the offending act, the commission of which is alleged to have been aided by the small fry, the appellant.
The charge under section S (1) (d) of the Act also cannot be sustained for the reason that in the peculiar circumstances or the case, it could not be reasonably said that the appellant had obtained the currency note by using some corrupt or illegal means or otherwise abusing his official position as a public servant.
This point was canvassed on behalf of the appellant before the High Court but was negatived by it in these terms: "In this case the appellant had told the complainant that he had been sent by Inspector Gupta and that he should pay the money.
It has been held by the Special Judge while acquitting Inspector Gupta that he was not the person who had sent the appellant to collect any money from the complainant.
Before contacting the complainant the appellant had checked the labour which was working in the factory for installation of the lines for electricity.
All this showed that he represented himself to the complainant as a person connected with the Department concerned.
He also used corrupt means to ask the money on behalf of Inspector Gupta and thus this ingredient was satisfied.
" We find ourselves unable to agree with this reasoning.
We have already noticed above that this was not the case of the prosecution? as 355 put in evidence, that the appellant had demanded the money on his own account by any express or implied representation to get any favour or service done to the complainant.
Rather, the positive case set up by the prosecution in evidence was that the money was demanded by Gupta and was received by the appellant on his behalf pursuant to the instructions of Gupta given to the complainant earlier.
Therefore, if the prosecution has failed to prove that the money had not been paid to the appellant pursuant to any demand of bribe made by Gupta, the court cannot make out a new case for the prosecution to hold that the amount had been received by the appellant on his own or for some person other.
than Gupta.
We have already held that the appellant was a mere labourer who was not concerned with the installation work at the site or with the giving of the power connection to the complainant.
In view of the categorical position taken by the prosecution in evidence, it does not now lie in their month to may that the appellant must have received the money for himself or for some other person; much less can it be said that the appellant has abused his official position or has used any illegal means in acting as an innocent carrier for Gupta.
Thus, the essential ingredient of the offence under section 5(1) (d) was lacking in this case.
We are therefore of the opinion that on the facts of this case, the prosecution had failed to bring home the charges to the appellant beyond a reasonable doubt.
Accordingly we allow this appeal, set aside the conviction of the appellant and acquit him of the charges levelled against him.
V.P.S. Appeal allowed.

Output:
An inspector of the Delhi Electric Supply Undertaking demanded a bribe for giving the complainant a power connection for his factory.
Information having been given to the anti corruption police a trap was set.
The inspector did not turn up at the appointed time to receive the money, but the appellant, a permanent labourer working under him, came to the complainant 's factory, told him that he had been sent by the Inspector, and that the money should be given to him. 'The complainant, at first, insisted that the inspector himself should come but later gave him the money.
The money was recovered from the appellant and the inspector and the appellant were charged with offences under the Prevention of Corruption Act.
The trial court acquitted the inspector but convicted the appellant under section S(2) read with section 5(1)(d) of the Act, and under section 161 I.P.C., with the aid of the presumption under section 4(1) of the Act.
The conviction was confirmed by the High Court.
Allowing the appeal to this Court, ^ HELD : ( I ) The question whether a government servant receiving money had the requisite incriminatory motive is one of fact.
[353H, 354A] (2) one of the essential ingredients of the offence under section 161, I.P.C., is that the gratification must have been received by the accused as a motive or reward for committing an act or omission in connection with his official functions.
Even if the government servant was incapable of showing any favour or rendering any service in connection with his official duties, he may be guilty; but, the existence of an understanding that the bribe was given in consideration of some official act or conduct is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward as mentioned in section 161, I.P.C. [353GH] (3 ) The appellant being a mere labourer was incapable of showing any favour or rendering any service to the complainant in connection with his official duties.
It had not been shown by the prosecution that he was in any way officially concerned with the installation of poles or the giving of electric connection; nor was it shown that the appellant made any representation, claim or promise, that he would either himself or through his inspector get an official act done for the complainant.
Or that the appellant had demanded bribe from the complainant.
[353A C, F] In the absence of any such circumstances the conduct of the appellant was not incompatible with the role of an innocent carrier of money without the requisite mens rea.
[353E] (4) The charge under section 5(1)(d) also is unsustainable because, it could not be reasonably said that the appellant obtained the money by using corrupt or illegal means or otherwise abusing his official position, as a public servant (5) Section 4(1) of the Prevention of Corruption Act Provides that in the trial of an offence punishable under section 161 or 165, I.P.C., or under cls.
(a) or (b) of 5 5(1) read with sub section
5(2) of the Act, if the prosecution proves that the accused had accepted or obtained a gratification other than legal remuneration the court has to presume that the gratification was accepted or obtained by the accused as a motive or reward as mentioned in section 161, I.P.C. [351 H, 52B] 349 (6) (a) The presumption, however, is not absolute and is rebuttable.
The quantum and nature of proof required to displace the presumption, varies according to the circumstances of each case.
Such proof may partake of the shape of defence evidence adduced by the accused or, it may consist of circumstances appearing in the prosecution evidence itself as a result of cross examination or otherwise.
While the mere explanation given by the accused in his examination under section 342, Cr. P.C., may not b enough the burden on him to negate the presumption may stand discharged, if the effect of the material brought on record, in its totality renders the existence of the fact to be presumed improbable.
The accused may, therefore, rebut the presumption by showing a more preponderance of probability in his favour and it is not necessary for him to establish his case beyond reasonable doubt.
[352 CF]] Mahesh Prasad Gupta vs State of Rajasthan, ; followed. (b) Further, the sole purpose of the presumption under section 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offence under section 5(1) and (2) of the Act and section 161, I.P.C. The presumption, therefore, can be used only in furtherance of the prosecution case and not in derogation of it.
[352F G] (c) In the present case.
the statutory presumption being antithetical to the prosecution story, namely, that it was the inspector who demanded the bribe for showing a favour and that the payment was intended for him, could not be availed of by the Prosecution against the appellant.
[354 CD] (7) Nor can the appellant be held guilty of abetting the alleged attempt made by the inspector to obtain illegal gratification.
Intention to aid the conn mission of the crime is the gist of the offence of abetment, and such intention on the part of the appellant is lacking in this case.
It has not been shown that the appellant was present any occasion when the inspector demanded the bribe.
[354 D G] (8) Moreover, the principal accused had been acquitted.
The prosecution having failed to prove that the money had been paid to the appellant pursuant to the demand for a bribe by the inspector, the court cannot make out a new cause for the prosecution and hold that the amount had been.
received by the appellant on his own or for some person other than the inspector.
[355 B, D]