Orissa High Court
Bimbadhar Satapathy vs State Of Orissa on 29 June, 2017
Author: S. K. Sahoo
Bench: S.K. Sahoo
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 341 of 2009
From judgment and order dated 20.08.2009 passed by the
Special Judge, Vigilance, Jeypore in G.R. Case No.17 of 2003(V)/
T.R. No. 40 of 2007.
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Bimbadhar Satapathy ......... Appellant
-Versus-
State of Orissa ......... Respondent
For Appellant: - Mr. Deba Prasad Das
For Respondent: - Mr. Sanjay Kumar Das
(Standing Counsel Vig.)
CRLA No. 368 of 2009
Sudhir Kumar Xalxo ......... Appellant
-Versus-
State of Orissa (Vig.) ......... Respondent
For Appellant: - Mr. Biswajit Nayak
For Respondent: - Mr. Sanjay Kumar Das
(Standing Counsel Vig.)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Judgment: 29.06.2017
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S. K. SAHOO, J.The appellant Bimbadhar Satapathy in Criminal Appeal No. 341 of 2009 and the appellant Sudhir Kumar Xalxo in Criminal Appeal No. 368 of 2009 along with co-accused persons S. Ramesh Chandra Dora and Ashok Kumar Deo faced trial in the Court of learned Special Judge (Vigilance), Jeypore in G.R. Case No. 17 of 2003(V)/T.R. No. 40 of 2007 for offences punishable under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereafter '1988 Act') and section 120-B of the Indian Penal Code on the accusation that on 05.02.2003 at about 1.30 p.m. on N.H.43 near Coffee Board Office, Koraput, the appellants being the public servants employed in the O.M.V. Deptt., Koraput as Traffic Inspectors along with co-accused constables, by corrupt and illegal means and abusing their position as public servants, obtained for themselves pecuniary advantage to the tune of Rs. 5065/- by collecting illegal gratification from the bus/truck drivers without issuing money receipts while checking the vehicles on the National Highway and they made conspiracy to do the illegal acts and collected illegal gratification in course of checking of the vehicles which did not tally with the V.C.Rs. and M.R. books issued to them.
The learned Trial Court vide impugned judgment and order dated 20.08.2009 has been pleased to acquit the 3 constables S. Ramesh Chandra Dora and Ashok Kumar Deo of all the charges but convicted the appellants Bimbadhar Satapathy and Sudhir Kumar Xalxo under the offences charged and sentenced them to undergo R.I. for two years and to pay a fine of Rs.2,000/- each, in default, to undergo R.I. for 6(six) months for the offence under section 13(1)(d) read with section 13(2) of the 1988 Act and further sentenced them to undergo R.I. for one year and to pay a fine of Rs.1,000/- each, in default, to undergo R.I. for three months under section 120-B of the Indian Penal Code and the substantive sentences were directed to run concurrently.
Since both the appeals arise out of a common judgment, with the consent of the parties, those were heard analogously and disposed of by this common judgment.
2. The prosecution case, as per the first information report (Ext.10) lodged by Shri Ramakanta Sahu (P.W.7), Dy. Supdt. of Police (Vigilance Cell), Cuttack before the Superintendent of Police, Vigilance, Berhampur Division, Berhampur is that the informant received reliable information that the O.M.V.D. staff, Koraput were collecting illegal gratification from the bus/truck drivers on the National Highway (N.H.43), Koraput without issuing money receipt and accordingly 4 a surprise raid was conducted on 05.02.2003 by the Officers of the Vigilance Cell, Cuttack in presence of the witnesses.
During check, it was detected that the appellants who were the Traffic Inspectors along with the co-accused constables were standing near the Govt. vehicle bearing registration number OR-10-6669 of the Transport Department and checking the vehicles on N.H.43. The vigilance raiding party arrived there and disclosed their identity and challenged them regarding acceptance of illegal gratification by them from the bus/truck drivers during checking but the accused persons denied the same. It is stated that the personal search of the accused persons were taken and from the possession of the appellant Bimbadhar Satapathy and Sudhir Kumar Xalxo, cash of Rs. 1045/- and Rs. 50/- were found respectively and from the possession of the two constables co-accused persons, cash of Rs.42/- and Rs.120/- were found respectively.
It is the further prosecution case as per the first information report that during search of the Government vehicle, an amount of Rs.4,000/- of different denominations of currency notes were found in a bundle in a polythene packet, kept in the office jeep. The excess amount of Rs. 4,000/- which was found in the Government vehicle could not be satisfactorily accounted for 5 by the O.M.V.D. officials. During check, it was noticed that the vehicle checking report book numbering from 10101-N to 10150- N was issued to appellant Bimbadhar Satpathy who had issued VCRs vide No.10143-N to 10146-N in respect four vehicles on 05.02.2003 till the time of vigilance check and he had collected fine of Rs.520/- in respect of two vehicles vide VCR No. 10145-N and 10146-N and issued M.R. Nos. 17962 (47) and 17962 (48). The compounding fees in respect of the VCR Nos. 10143-N and 10144-N had not been realized. The appellant Bimbadhar Satapathy explained before the Vigilance officials that there was balance of Rs.970/- which he had collected towards compounding fees earlier and not deposited in the office. The records were verified and it was found that there was a balance of Rs. 970/- and the compounding fees collected to the tune of Rs. 520/- on 05.02.2003 came to Rs. 1490/- which should have been available with him whereas Sri Satapathy was in possession of Rs. 1480/- which is less by Rs. 10/-.
It is the further prosecution case as per the first information report that the appellant Sudhir Kumar Xalxo was issued with a VCR Book containing page Sl. 10151-N to 10200-N and he had issued VCR Nos. 10175-N to 10178-N to the defaulting vehicles on 05.02.2003 and the amount realized from 6 the vehicles came to Rs.1520/- and as such there was no difference of amount with the appellant Sudhir Kumar Xalxo. During the check of the briefcase of appellant Sudhir Kumar Xalxo, an amount of Rs. 3560/- was found which was explained by him to have collected the same towards compounding fees on 03.02.2003 and 04.02.2003 vide M.R. Nos. 20541(7) to 20541(11) which were yet to be deposited in the office by him and the amount collected vide those money receipts come to Rs.2310/- and as such there was no discrepancy of the amount.
It is the further prosecution case as per the first information report that the amount of Rs.4,000/- which was found in the polythene packet in the Jeep used by the O.M.V.D. staff, Koraput during the vigilance checking, was nothing but illegal gratification collected by the O.M.V.D. officers in abuse of their official position.
On receipt of such first information report, Berhampur Vigilance P.S. Case No. 17 of 2003 was registered on 28.02.2003 under section 13(2) read with section 13(1)(d) of the 1988 Act and section 120-B of the Indian Penal Code. The Supdt. of Police, Vigilance, Berhampur directed P.W.7 to investigate into the case.
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During course of investigation, P.W.7 examined witnesses and prepared the spot map and he took charge of the seizure lists and other documents from M. Radhakrishna, Inspector, Vigilance. He received the sanction orders in respect of the appellants vide Ext.1 and Ext.7 and sanction orders against the co-accused constables from the competent authorities. He deposited the seized cash in the Allahabad Bank, Cantonment Road, Cuttack, arrested the accused persons and released them on bail and after completion of investigation, charge sheet was submitted against all the accused persons under section 13(2) read with section 13(1)(d) of the 1988 Act and section 120-B of the Indian Penal Code.
3. During course of trial, the prosecution examined seven witnesses.
P.W.1 Jagannath Khatua was the Senior Clerk in the office of the R.T.O., Koraput and his evidence is not very material for the prosecution case.
P.W.2 Rama Pujaari was the driver of the official jeep bearing registration no. OR-10-6669 who had taken the vehicle to N.H. 43 near Petrol Pump and the accused persons had gone in the said jeep to check the motor vehicles. He stated that due to illness, he left the place and on the next day, he came to 8 know that the Vigilance police had recovered some cash from the two appellants.
P.W.3 Uchhab Debta was the Senior Clerk in the office of the Sub-Collector, Koraput and he accompanied the Deputy Supdt. of Police, Vigilance for surprise checking of the motor vehicles. He stated about the recovery of cash from the possession of the two appellants as well as the co-accused persons and further stated about seizure of cash of Rs.4,000/- from the vehicle. He has also stated about the search of the house of the appellant Bimbadhar Satpathy and preparation of the inventory.
P.W.4 Dhobei Charan Sahoo was the Deputy Secretary to Govt., G.A. Department, Bhubaneswar who issued sanction order for launching prosecution against appellant Bimbadhar Satapathy vide Ext.1 as per the approval of the Chief Minister of Odisha. He proved the sanction order Ext.1 as well as the communication to Director -cum- Addl. D.G. of Vigilance, Cuttack vide letter Ext.2.
P.W.5 Prasant Kumar Mohapatra was working as the Senior Clerk in the office of the Sub-Collector, Koraput and he also accompanied the Vigilance Police on the date of occurrence for surprise checking of the motor vehicles and stated to have 9 seized cash from the possession of the two appellants as well as from the two co-accused persons and also seizure of cash of Rs.4,000/- from the jeep of the O.M.V.D. He proved the memorandum prepared at the spot vide Ext.3. He further stated about the search of the houses of the two appellants.
P.W.6 Upendra Prasad Singh was the Transport Commissioner, Orissa, Cuttack who accorded sanction for the prosecution of the appellant Sudhir Kumar Xalxo vide sanction order Ext.7. He further stated about the permissible limit of personal cash to be kept by the officials during checking of the vehicles as per instruction Ext.9.
P.W.7 Ramakanta Sahu was the Deputy Supdt. of Police, Vigilance, Cuttack cell who is not only in the informant in the case but also the investigating officer.
The prosecution also exhibited twelve numbers of documents. Ext.1 is the sanction order in respect of appellant Bimbadhar Satapathy, Ext.2 is the letter issued by the under secretary to Govt. of Orissa to the Director -cum- Addl. D.G., Police, Vigilance regarding sanction of prosecution against appellant Bimbadhar Satapathy, Ext.3 is the memorandum prepared by P.W.7 after search and seizure, Ext.4 is the search list, Exts. 5 & 6 are the seizure lists, Ext.7 is the sanction order 10 in respect of the appellant Sudhir Kumar Xalxo, Ext.8 is the letter issued by the Under Secretary to the Supdt. of Police, Vigilance Cell, Cuttack regarding sanction of prosecution against appellant Sudhir Kumar Xalxo, Ext.9 is the Xerox copy of the letter dated 13.12.2002 of the Addl. Commissioner Transport (Administration) Orissa, Cuttack regarding maximum cash limit to be retained by staff deployed for enforcement activity, Ext.10 is the first information report, Exts.11 & 12 are the sanction orders in respect of the co-accused persons.
4. The defence plea of the appellants was one of denial. It was pleaded by the appellant Bimbadhar Satapathy that since the next day of the occurrence was Basanta Panchami, he had kept money with him for purchase of dress of his son.
The appellant Sudhir Kumar Xalxo examined himself as D.W.1 and appellant Bimbadhar Satapathy examined himself as D.W.2.
The defence has exhibited two documents. Ext. A is the office copy of the tour particulars of appellant Sudhir Kumar Xalxo and Ext. B is the office copy of the tour particulars of the appellant Bimbadhar Satapathy.
5. The learned Trial Court after analyzing the evidence on record has been pleased to hold that no discrepancies of 11 amount was found in respect of recovered money from appellant Sudhir Kumar Xalxo. It was further held that so far as the co- accused S. Ramesh Chandra Dora is concerned, the quantity of excess amount was Rs.20/- and in absence of any other contrary evidence, it can be said to be a meager amount being trivial in nature and the same can be waived since the prosecution has failed to establish that such limit of keeping personal money as fixed by Govt. was within the knowledge of that O.M.V.D. staff and that keeping of excess amount of Rs.20/- on personal search of the said accused cannot be held to be a demand as gratification by influencing his official position.
The learned Trial Court further held that so far as the recovery of Rs.1045/- from the personal search of the appellant Bimbadhar Satpathy is concerned, he had not told the factum of keeping the money for the purchase of dress of his son to any of his colleagues or authority that he was having extra money of Rs.845/-. It was further held that the appellant was on enforcement activities and being a responsible officer, it cannot be said that the circular Ext.9 which fixed the cash limit was not within the knowledge of the appellant and accordingly, it was held that the excess money of Rs. 845/- which was found with appellant Bimbadhar Satapathy can be held as illegal 12 gratification received by him in official capacity in the process of checking.
The learned Trial Court further held that the jeep was in the custody of the officers like the Traffic Inspectors and it was not removed nor the staff left the place of checking till the detection by the Vigilance Officials. It was further held that there was no specific evidence against the constables that they had the conspiracy or agreement with the appellants for collecting an amount of Rs. 4,000/- and that they kept the some on the backside of the jeep. The learned Trial Court further held that the accused constables can be given benefit of the doubt of the offences of criminal misconduct and conspiracy thereof in absence of reliable, cogent and clinching evidence against them.
Relating to the seizure of Rs.4,000/- from the backside of the jeep, the learned Trial Court held that the recovery part cannot be disbelieved and from the prosecution evidence through P.W.3, 5 and 7 vis-a-vis Ext.3, the presumption of genuineness and correctness in the preparation of the report in due discharge of their duties by the vigilance officers in the presence of the accused persons can be attached to. The learned Trial Court after discussing the case laws on criminal conspiracy has been pleased to observe that in the 13 absence of any satisfactory explanation regarding valid possession of Rs.4,000/-which was seized from the official jeep, both the appellants can be held liable for the offence of criminal misconduct and conspiracy thereof even though no excess limit of money was recovered from appellant Sudhir Kumar Xalxo.
6. Mr. Deba Prasad Das, learned counsel appearing for the appellant Bimbadhar Satapathy in Criminal Appeal No. 341 of 2009 while challenging the impugned judgment and order of conviction, emphatically contended that Rs.4,000/- was not recovered from the personal possession of any of the appellants but it was recovered from the vehicle when none of the accused persons were present inside the vehicle. He further emphasized that before conducting the search and seizure of the vehicle, the personal search of the raiding party members were not taken and there are discrepancies as to in what position, the cash of Rs.4,000/- was found inside of the jeep. He placed the statement of the investigating officer which indicates that he could not ascertain as to who had kept Rs. 4,000/- inside the vehicle. The learned counsel further highlighted that nobody had complained that the accused persons demanded or accepted any amount on the relevant day illegally from them and that they did not issue any receipt after receiving such amount. Learned counsel further 14 submitted that the evidence of P.W.5 indicates that no person complained before them that the accused persons collected money from them unauthorizedly.
It is the contention of the learned counsel for the appellants that when the vehicle owners or drivers or conductors of the buses or trucks have not been examined which were checked by the appellants to say about demand and acceptance aspect, mere recovery of Rs. 4,000/- from the jeep cannot be a factor to come to a conclusive finding that the appellants received such amount illegally.
It is further contended by the learned counsel for the appellants that there is no evidence that Ext.9 which was issued by the Transport Commissioner was within the knowledge of the appellants and more particularly section 13(1)(d) of the P.C. Act does not provide any limit beyond which, the possession of money would be an offence. It is further contended that the offence has been defined in the statute and it cannot be supplemented, varied, modified or expanded in any manner by any letters issued by the Executive Authorities. He emphasized that in absence of any material to show that Ext.9 has been communicated to the appellants and to the employees/staffs of the office of the R.T.O., Koraput, no presumption can be drawn 15 that Ext.9 was within the knowledge of the appellants. He further emphasized that since Ext.9 was not seized from the office of the R.T.O., Koraput but from the office of the Transport Commissioner, Cuttack and R.T.O., Koraput has not been examined and no documents from the office of the R.T.O., Koraput has been seized regarding receipt of Ext.9 from the office of the Transport Commissioner, the learned Trial Court has committed illegality in jumping to the conclusion that the contents of Ext.9 was within the knowledge of the appellants.
Learned counsel for the appellants relied upon the decisions of the Hon'ble Supreme Court in cases of Sujit Biswas
-Vrs.- State of Assam reported in (2013) 12 Supreme Court Cases 406, Khaleel Ahmed -Vrs.- State of Karnataka reported in (2016) 63 Orissa Criminal Reports (SC) 150, Suraj Mal -Vrs.- The State (Delhi Administration) reported in AIR 1979 Supreme Court 1408, B. Jayaraj -Vrs.- State of Andra Pradesh reported in (2014) 13 Supreme Court Cases 55, N. Sunkanna -Vrs.- State of Andhra Pradesh reported in 2016 (I) Orissa Law Reviews (SC) 8, C.M. Girish Babu -Vrs.- CBI, Cochin reported in (2009) 3 Supreme Court Cases 779, M. Abbas -Vrs.- State of Kerala reported in (2001) 10 Supreme Court Cases 103, 16 Punjabrao -Vrs.- State of Maharashtra reported in AIR 2002 Supreme Court 486, Kanwarjit Singh Kakkar -Vrs.- State of Punjab reported in (2011) 13 Supreme Court Cases 158 and Ashok Tshering Bhutia -Vrs.- State of Sikkim reported in (2011) 4 Supreme Court Cases 402.
7. Mr. Biswajit Nayak, learned counsel appearing for the appellant Sudhir Kumar Xalxo supplementing the argument advanced by Mr. Das, contended that the findings of the learned Trial Court are not supported by any legal evidence on the contrary the same are outcome of sheer surmises and conjectures. He further submits that nothing was seized from the possession of the appellant not there is any evidence that the appellant had kept Rs.4000/- in the jeep and there is no iota of evidence that the money found beneath the seat of the driver belonged to the appellant. It is further contended since the appellants were not there in the vehicle at the time of seizure of money from the vehicle and there is no evidence that the money was seized from the conscious possession of the appellants, no liability cannot be fixed on the appellants for such seizure. He further submitted that since the investigating officer has not whispered anything regarding the presence of the two witnesses i.e. P.W.3 and P.W.5 at the spot during checking and seizure, the 17 evidence of such witnesses creates doubt. It is further contended that in absence of any material that any money was collected from any vehicle illegally during checking and in absence of any complaint from anybody as stated by the P.W.5 and P.W.7, the finding of the learned Trial Court that the accused persons had obtained pecuniary advantage by abusing their official position is thoroughly misconceived.
8. Mr. Sanjay Kumar Das, learned Standing Counsel for the Vigilance Department submitted that there is no illegality or perversity in the findings of the learned Trial Court and when the both the appellants were the Government servants and they were discharging their duties as Traffic Inspectors under the R.T.O., Koraput and they had gone in the official jeep for checking of the motor vehicles and an amount of Rs. 4,000/- of different denominations were found from the jeep, their denial plea regarding their knowledge about existence of any money in the vehicle is itself sufficient to convict them. He further contended that recovery of the money from the vehicle has been duly proved by the independent official witnesses like P.W.3 and P.W.5 so also by P.W.7 which otherwise proves the conscious possession of the appellants. He further contended that the ignorance pleaded by the appellants regarding their knowledge 18 of the contents of Ext.9 cannot be accepted particularly when the appellant Bimbadhar Satapathy had remained in charge of R.T.O. for some time as per his own evidence. He further highlighted from the evidence of Transport Commissioner who was examined as P.W.6 that Ext.9 was issued to all the R.T.Os. of the State and no suggestion has been given by the appellants to P.W.6 even denying such aspect and therefore, the appellants cannot take a plea that such a letter was not communicated to the R.T.O. office under which they were working.
Learned Standing Counsel for the Vigilance Department relied upon the decisions of the Hon'ble Supreme Court in the cases of R. Shaji -Vrs.- State of Kerala reported in (2013) 54 Orissa Criminal Reports (SC) 974 and Harpal Singh @ Chhota -Vrs.- State of Punjab reported in (2017) 66 Orissa Criminal Reports (SC) 39 regarding the criminal conspiracy aspect. It is contended that since the learned Trial Court has appreciated the evidence in proper perspective and from the oral as well as the documentary evidence, the complicity of the appellants in the crime is clearly borne out, the appeal should be dismissed.
9. Law is well settled as held in case of Sujit Biswas - Vrs.- State of Assam reported in (2013) 12 Supreme Court 19 Cases 406 that suspicion, however grave it may be, cannot take the place of proof. The Court has a duty to ensure that mere conjectures or suspicion do not take the place of legal proof. The Court must ensure, that miscarriage of justice is avoided, and if the facts and circumstances of a case so demand, then the benefit of doubt must be given to the accused, keeping in mind that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but a fair doubt that is based upon reason and common sense. In a criminal trial, suspicion no matter how strong, cannot and must not be permitted to take place of proof and that is for the reason that the mental distance between 'may be' and 'must be' is quite large, and divides vague conjectures from sure conclusions. The large distance between 'may be' true and 'must be' true, must be covered by way of clear, cogent and unimpeachable evidence produced by the prosecution, before an accused in condemned as a convict, and the basic and golden rule must be applied.
There is no dispute over unequivocally established proposition of law that the presumption which is envisaged under section 20 of the 1988 Act does not apply to the offence under section 13(1)(d) of the 1988 Act as held in case of Khaleel 20 Ahmed -Vrs.- State of Karnataka reported in (2016) 63 Orissa Criminal Reports (SC) 150.
Whether mere recovery of money would be sufficient to convict an accused for the offence has been dealt with by a number of decisions of the Hon'ble Supreme Court. In case of Suraj Mal -Vrs.- The State (Delhi Administration) reported in A.I.R. 1979 S.C. 1408, it has been held that mere recovery of 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 particularly in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money.
In the cases of B. Jayaraj -Vrs.- State of Andhra Pradesh reported in (2014) 13 Supreme Court Cases 55 and N. Sunkanna -Vrs.- State of Andhra Pradesh reported in 2016 (I) Orissa Law Reviews (SC) 8, it has been held that so far as the offence under section 13(1)(d)(i) and (ii) is concerned, in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. 21
10. Coming to the recovery of money which has been held to be an offence against the appellant Bimbadhar Satapathy is that he had kept excess money to the tune of Rs.845/- which was held to be illegal gratification received by him in official capacity in the process of checking of vehicles.
It is the prosecution case that cash of Rs.1045/- was seized from the personal search of appellant Bimbadhar Satapathy against the permissible limit of Rs.200/- as per Ext.9. The appellant was examined as D.W.2 and he has not disputed about recovery of Rs.1045/- from his personal search but he has explained that since his family was staying at Koraput during that time and on the next day of occurrence was Basanta Panchami day, for that festival he had kept Rs.1045/- for purchase of dress of his son. Similar plea has been taken by the appellant in his statement recorded under section 313 of Cr.P.C. In support of such plea, the appellant has filed a printed calendar issued by the Government of Orissa for the year 2003, which shows that on 06.02.2003 was a Government Holliday for Saraswati Puja. The plea has been discarded by the learned Trial Court on the ground that the appellant had not told that fact to any of his colleagues or authority that he was having extra money of Rs.845/- for the said purpose. It is not expected for 22 the appellant to go on telling everybody as because he had kept a paltry sum with him for the purpose of purchasing dress of his son. The plea taken cannot be said to be improbable particularly when there is no dispute that the next day of the occurrence was Basant Panchami day.
It is the prosecution case that Ext.9 was issued by the Addl. Commissioner Transport (Admn.), Orissa, Cuttack on dated 13.12.2002 to all the Regional Transport Officers in which the maximum cash limit to be kept by a Traffic Inspector/Traffic Sub-Inspector was fixed at Rs.200/- during his tours on enforcement work. It is the prosecution case that keeping of Rs.1045/- was in excess of Rs.845/- which violates the order issued under Ext.9. D.W.2 of course has stated that at times he remained in charge of R.T.O. during the absence of the later but he has specifically stated that he had no knowledge regarding any circular indicating the limit of money to the retained by the officer during check. Ext.9 was issued on 13.12.2002 and the occurrence took place within one and half month after issuance of such letter by the Addl. Commissioner of Transport. There is no evidence that in between such period i.e. 13.12.2002 to 05.02.2003, the appellant Bimbadhar Satapathy was in charge of R.T.O. Admittedly in this case, the Regional Transport Officer of 23 Koraput has not been examined nor the document Ext.9 was seized from the office of the R.T.O., Koraput. P.W.7 has categorically stated that he has not examined the R.T.O., Koraput and he has not ascertained whether Ext.9 was circulated amongst the staff and he received Ext.9 from the office the Transport Commissioner, Cuttack and he did not know if R.T.O., Koraput had received the copy of Ext.9. No documentary evidence like register etc. of the office of the R.T.O., Koraput has been proved showing the receipt the letter dated 13.12.2002 in the office of the R.T.O., Koraput or circulation of such letter among the staff. Therefore, merely by proving a xerox copy of the letter vide Ext.9, it cannot be presumed that all the Inspectors and Staff working under the R.T.O., Koraput were aware about the contention of the letter. Therefore, I am unable to accept the findings of the learned Trial Court that Ext.9 was within the knowledge of the appellants.
Law is well settled as held in case of C.M. Girish Babu -Vrs.- CBI, Cochin reported in (2009) 3 Supreme Court Cases 779 that 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 verdict of 24 guilt. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e. establishing on the whole case the guilt of the accused beyond a reasonable doubt.
In case of M. Abbas -Vrs.- State of Kerala reported in (2001) 10 Supreme Court Cases 103, it has been held that where an accused sets up a defence or offers an explanation, it is well settled that he is not required to prove his defence beyond a reasonable doubt but only by preponderance of probabilities. It was further held that the Court cannot convict an accused only on such probability or suspicion, howsoever strong it may be. Between 'may be true' and 'must be true', there is a long distance to travel.
Learned counsel for the appellant Bimbadhar Satapathy while placing reliance in case of Kanwarjit Singh Kakkar -Vrs.- State of Punjab reported in (2011) 13 Supreme Court Cases 158 contended that act of keeping excess money than as prescribed under Ext.9 cannot be an offence under prevention of corruption Act. In that case it is held as follows:-
"29. The professional fee even as per the case of the complainant/informant was that this act on the part of the appellant-accused was contrary to the government circular and the circular itself 25 had a rider in it which stated that the government doctor could do private practice also, provided he sought permission from the Government in this regard. Thus, the conduct of the appellants who are alleged to have indulged in private practice while holding the office of government doctor and hence public servant at the most, could be proceeded with for departmental proceeding under the Service Rules but insofar as making out of an offence either under the Prevention of Corruption Act or under IPC, would be difficult to sustain."
In case of Ashok Tshering Bhutia -Vrs.- State of Sikkim reported in (2011) 4 Supreme Court Cases 402, it is held as follows:-
"36. Not filling up the form under the mandatory requirement of Rule 19 of the 1981 Rules may render the appellant liable for disciplinary proceedings under service jurisprudence, but that itself cannot be a ground for rejection of the said documents in toto without examining the contents thereof. In this regard, we are of the considered view that the Courts below have committed a grave error and the contents thereof should have been examined."
Therefore, when only a letter Ext.9 is purported to have been issued by P.W.6 to all the R.T.Os. and there is no evidence that it has been communicated to the appellants and when the said document has not been seized from the office of the R.T.O., Koraput and the R.T.O., Koraput has not been examined, in absence of any positive evidence in that regard, it 26 cannot be said that the contents of Ext.9 were within the knowledge of the appellants. When the appellant Bimbadhar Satapathy had kept a sum of Rs.1045/- which is in excess of Rs.845/- to the limit prescribed under Ext.9 and he has offered an explanation for keeping such money, it cannot be said that the appellant has failed to discharge his burden by way of preponderance of probability. Therefore, the finding of the learned Trial Court that the excess money found with the appellant Bimbadhar Satapathy amounting to Rs.845/- can be held as illegal gratification received by him in official capacity in the process of checking cannot be accepted.
11. Coming to the recovery of Rs.4000/- from the official jeep in question, admittedly it is the prosecution case that nobody was inside the jeep when the recovery was made and during the surprise check, while the appellants and other co- accused persons were checking vehicle, the Vigilance Authorities came and then the vehicle was searched and recovery of Rs.4000/- was made from the back of the driver's seat. The appellants have pleaded their ignorance about such recovery. In the first information report, it is mentioned that an amount of Rs.4000/- of different denominations of currency notes was found in a bundle in a polythene packet kept in the office jeep. 27 There are three witnesses who state about the seizure of the money and they are P.W.3 Uchhab Debta, P.W.5 Prasanta Kumar Mohapatra and P.W.7 Ramakanta Sahu.
P.W.3 has stated that cash of Rs.4000/- was recovered from the back side of the driver seat on the floor of the body and the driver was absent. P.W.5 has stated the cash of Rs.4000/- was recovered from the bag which was kept on the backside of the seat of the driver.
Therefore, there are discrepancies in the evidence of the witnesses P.W.3, P.W.5 vis-a-vis the first information report regarding the position in which the cash of Rs.4000/- was found in the back of the driver seat. Admittedly, there is no evidence that the accused persons demanded such amount from anybody or received such amount. P.W.5 stated that no person complained before them that accused persons collected money from him unauthorisedly.
P.W.7, the informant -cum- investigating officer has stated he has not received any complaint personally against the accused persons and he has not examined the vehicles which were checked by the accused persons to find out whether they had paid any excess amount beyond the fine amount. He has further stated that while the checking was going on near Coffee 28 Board, they went to the accused persons and gave their identity and took their personal search. P.W.7 has categorically stated that they did not give their personal search to the accused persons at the spot. Therefore, when there is absence of any demand or acceptance of money by the appellants and only the prosecution has adduced evidence relating to recovery of the amount from the back side of the seat of the driver of the jeep in which the accused persons were not present at the relevant time when the seizure was made and the co-accused constables who had access to the vehicle have been acquitted and when no personal search of the raiding party members were taken prior to the search of the vehicle which is very much necessary in order to eliminate any chance of plantation of such money, it is very risky to hold that the prosecution has proved an offence of misconduct and conspiracy against the appellants by merely proving the recovery of money from the jeep. The findings of the learned Trial Court is based on mere surmises and conjectures and in absence of any clinching materials relating to demand and acceptance of such money and when the necessary formalities before the search and seizure have not been conducted and there are discrepancies in the statements of the witnesses vis-a- vis the first information report relating to the manner in which 29 the money was found in the vehicle and there is absence of adequate evidence regarding the meeting of minds of the appellants to hatch a criminal conspiracy, I am not inclined to accept the prosecution evidence.
12. In view of the discussions made above, I hold that the impugned judgment and order of acquittal passed by the learned Trial Court suffers from grave infirmity and illegality. The conclusions drawn by the Trial Court are perverse and against the weight of evidence. The view taken by the Trial Court is unreasonable and not plausible and therefore, the impugned judgment and order of conviction is liable to be set aside.
Accordingly, both the appeals are allowed and the impugned judgment and the order of conviction of the appellants are set aside.
The appellants who are on bail are discharged from the liability of their bail bonds. Their personal bonds as well as surety bonds stand cancelled.
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S. K. Sahoo, J.
Orissa High Court, Cuttack The 29th June 2017/Kabita/Sukanta