From The Judgment And Order Dated ... vs State Of Odisha (Vig.) on 21 October, 2021

[Cites 9, Cited by 0]

Orissa High Court

From The Judgment And Order Dated ... vs State Of Odisha (Vig.) on 21 October, 2021

Bench: S.K. Sahoo

IN THE HIGH COURT OF ORISSA, CUTTACK

CRLA No. 322 Of 2003

From the judgment and order dated 08.12.2003 passed by the
Special Judge (Vigilance), Bhubaneswar in T.R. Case No.26 of
1993.
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Sanatan Dash ......... Appellant

-Versus-

State of Odisha (Vig.) ......... Respondent

For Appellant: - Mr. Ramani Kanta Pattnaik

For Respondent: - Mr. Sanjay Kumar Das
Standing Counsel (Vig.)

----------------------------

P R E S E N T:

THE HONOURABLE MR. JUSTICE S.K. SAHOO

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Date of Hearing: 30.09.2021 Date of Judgment: 21.10.2021
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S.K. SAHOO, J. The appellant Sanatan Dash faced trial in the Court

of learned Special Judge, Vigilance, Bhubaneswar in T.R. Case

No.26 of 1993 for offences punishable under section 7 and

section 13(2) read with section 13(1)(d) of the Prevention of

Corruption Act, 1988 (hereafter '1988 Act') on the accusation
// 2 //

that on 03.02.1992 being a public servant employed as

Accountant in the office of the Executive Engineer, Electrical,

Keonjhar, he accepted an amount of Rs.500/- (rupees five

hundred) from the complainant Satrughna Sahu (P.W.1) as

gratification other than legal remuneration as a motive for doing

an official act i.e., passing his house rent bill amounting to

Rs.10,216/- (rupees ten thousand two hundred sixteen) in

exercise of his official function and thereby obtained pecuniary

advantage to the extent of Rs.500/- from P.W.1 by corrupt or

illegal means and/or by otherwise abusing his position as public

servant.

The learned trial Court vide impugned judgment and

order dated 08.12.2003 found the appellant guilty of the

offences charged and sentenced him to undergo R.I. for two

years and to pay a fine of Rs.1,000/-, in default, to undergo R.I.

for six months under section 13(2) of the 1988 Act and further to

undergo R.I. for one year and to pay a fine of Rs.1,000/-, in

default, to undergo R.I. for six months under section 7 of the

1988 Act and both the substantive sentences of imprisonment

were directed to run concurrently.

2. The factual matrix of the prosecution case, as per the

written report presented by P.W.1 Satrughan Sahu before Sri

Page 2 of 37
// 3 //

Nrusingha Charan Nayak (P.W.6), Inspector in-charge, Vigilance,

Keonjhar on 01.02.1992 is that he had a house at Telkoi in the

district of Keonjhar, a portion of which had been let out to

Electric Department for the last nine years to run the Electric

Section Office. From 01.08.1986, the house rent was

outstanding. P.W.1 came to know from one clerk Sinha Babu in

the office of the Executive Engineer that order had been passed

to pay the house rent at the rate of Rs.122/- per month from

01.08.1986 till 30.06.1990 and at the rate of Rs.249/- per month

from 01.07.1990 to 30.11.1991 totaling to Rs.10,216/-. He met

the appellant, who was the Accountant in that office three to four

times to get his outstanding house rent dues, but appellant used

to inform him that the money was not available. P.W.1 then met

the Executive Engineer on 22.01.1991 in that connection, who

informed that he had already passed the bill and asked him to

meet the appellant. P.W.1 met the clerk Sinha Babu, who after

consultation with the appellant told him to pay Rs.800/- after

which the bill would be passed and draft would be issued in his

favour. P.W.1 met the appellant and expressed his inability to

pay such an amount. The appellant told him that they were

taking Rs.600/- from each person with whom agreement was

entered into and finally told him that unless Rs.500/- was given,

Page 3 of 37
// 4 //

the draft would not be issued. The appellant told P.W.1 to come

ready on 03.02.1992 with cash of Rs.500/-. From an office peon,

P.W.1 could able to know that his file was lying with Sinha Babu

and after payment of bribe money, the appellant would bring the

file and make payment to him. It is further stated in the written

report that P.W.1 agreed to pay the bribe amount of Rs.500/- to

the appellant on 03.02.1992 against his will.

3. On receipt of such written report, Inspector of police,

Vigilance, Keonjhar submitted it to Superintendent of Police,

Vigilance, Balasore Division, Cuttack for registration of the case

and necessary direction, who in turn directed the officer in-

charge, Vigilance police Station, Balesore Division, Cuttack to

laying a trap and to investigate the case. Accordingly, Balasore

Vigilance P.S. Case No.02 dated 01.02.1992 was registered

under section 7 and section 13(2) read with section 13(1)(d) of

the 1988 Act.

4. P.W.6 issued requisitions to S.D.V.O., Keonjhar and

Asst. Controller, Weights and Measure, Keonjhar on 01.02.1992

to depute officers to assist him in the investigation. On

03.02.1992 in the morning hours, P.W.6 along with vigilance

staff, Harihar Mohapatra (P.W.2), Prafulla Kumar Acharya

Page 4 of 37
// 5 //

(P.W.3) and Prahallad Raut, Sub-Asst. Fooder of the office of

C.D.V.O., Keonjhar assembled in the P.W.D. Inspection

Bungalow, Keonjhar. P.W.1 also arrived there, who was

introduced to other witnesses. P.W.1 narrated his grievances

against the appellant to the person assembled there. P.W.2

Harihar Mohapatra was selected as overhearing witness. P.W.1

produced five currency notes of one hundred rupee

denomination, the numbers of which were noted down in a piece

of paper by P.W.3 Prafulla Kumar Acharya. On the instruction of

P.W.6, constable Narayan Maharana prepared sodium carbonate

solution, treated the currency notes with phenolphthalein

powder. The hand wash of Narayan Maharana in Sodium

Carbonate solution was taken which turned pink. A sample of the

hand wash was kept in a small bottle, which he marked as 'A'.

The constable Narayan Maharana kept the tainted currency notes

in a four folded white paper and placed it in the left side chest

pocket of P.W.1. P.W.2 was instructed to accompany P.W.1 to

the office of Executive Engineer, Electrical, Keonjhar, hear the

conversation between the appellant and P.W.1 and after demand

and receipt of money by the appellant, to give a signal by

rubbing his forehead with his right hand. A preparation report

(Ext.2) was typed out by the official vigilance steno in the P.W.D.

Page 5 of 37
// 6 //

I.B. on the dictation of P.W.6 who read out such report after its

completion to all the persons gathered in the I.B. and also

interpreted the same in Oriya. The witnesses including P.W.1 and

P.W.2 put their signatures on each page of Ext.2. A copy of Ext.2

was handed over to P.W.3 to compare the numbers of currency

notes after detection. At about 11.10 a.m., the trap party

proceeded to the office of Executive Engineer, Electrical,

Keonjhar.

P.W.1 and P.W.2 entered into the office of Executive

Engineer and the other members of the trap party took positions

near the gate and inside the premises as per their convenience.

At about 11.25 a.m., P.W.2 gave the pre-arranged signal coming

out of the office room of the Executive Engineer. Thereafter,

P.W.6 along with other witnesses entered inside the office room

of the Executive Engineer. P.W.6 found P.W.1 standing beside

the appellant in the office hall. P.W.1 pointed out to the appellant

to the members of trap party and told that he had given Rs.500/-

to the appellant. P.W.6 and A.S.I. R.N. Biswal caught hold of

both the hands of the appellant below his wrists. P.W.6 gave his

identity and the identity of others accompanying him. The wash

of the fingers of both the hands of the appellant was taken in

sodium carbonate solution, which turned to pink, sample of

Page 6 of 37
// 7 //

which was kept in separate bottle and marked as 'B'. P.W.6

asked the appellant to bring out the money which he had

received from P.W.1. The appellant brought out five currency

notes of one hundred rupee denomination from the backside pant

pocket. As per the instruction of P.W.6, P.W.3 took those

currency notes from the hands of the appellant and compared

the numbers with the numbers of currency notes noted down in

the preparation report (Ext.2), copy of which was with him. After

comparison, P.W.3 declared the numbers noted down in the

preparation report (Ext.2) tallied with the numbers of currency

notes which the appellant had produced before him. P.W.6 seized

the currency notes in presence of the witnesses and prepared the

seizure list (Ext.14). He again took wash of right hand fingers of

the appellant after he brought out the tainted money from the

backside pocket of his pant with sodium carbonate solution,

which turned to pink, a sample of that solution was kept in a

small bottle which he marked as 'C'. The hand wash of P.W.3 was

also taken in sodium carbonate solution which turned to pink. A

sample of that solution was kept in a small bottle which he

marked as 'D'. The wash of backside pant pocket of the appellant

was also taken in sodium carbonate solution, which turned to

Page 7 of 37
// 8 //

pink and the sample of that solution was kept in a small bottle

which was marked as 'E'.

P.W.6 seized the copy of preparation report (Ext.2)

from P.W.3 in presence of the witnesses and prepared seizure list

(Ext.8). He also seized the four folded white paper in which the

tainted money was kept from P.W.1 and prepared the seizure list

(Ext.9). He prepared a sketch map of the office of Executive

Electrical Division, Keonjhar (Ext.18). After collecting sample in

bottles which he marked as 'A' to 'E', he took signatures of

witnesses on separate white papers and wrapped each of the

bottles with those papers, tied the bottles with thread and sealed

the mouth of each bottle by using lac and impression of brass

seal (M.O.I) of Asotosh Das, the then S.P., Vigilance was given

on the lac of each bottle. P.W.6 seized the house rent register,

debit voucher, house rent bill, file bearing collection number on

production by Rajendra Prasad Sinha, clerk in the office of the

Executive Engineer in presence of the witnesses and prepared

the seizure list (Ext.4). He seized the sample bottle marked as 'E'

and grey colour full pant of the appellant in presence of the

witnesses as per the seizure list (Ext.11). He also seized the

sample bottles marked as 'C' and 'D' in presence of witnesses as

per seizure list vide Ext.13 and Ext.12. He seized the sample

Page 8 of 37
// 9 //

bottle marked 'B' in presence of witnesses as per seizure list

(Ext.15). Detection report (Ext.3) detailing the process of

detection was typed on the dictation of P.W.6 by the official

vigilance steno inside the office of Executive Engineer. P.W.6

read over the detection report (Ext.3) to all the persons and

witnesses including the appellant. The signatures of witnesses

were also taken on each page of that report. He gave a copy of

detection report to the appellant, who acknowledged it by giving

his endorsement and signature.

P.W.6 arrested the appellant and released him on

bail. He also examined the witnesses. The sample bottles marked

as 'A', 'B', 'C', 'D' and 'E' were sent by S.P., Vigilance, B.D.,

Cuttack to the Director, State F.S.L., Rasulgarh, Bhubanswar for

chemical analysis of their contents and opinion. The Chemical

Examination Report (Ext.17) was received which showed that

phenolphthalein was detected in the liquid contained in the glass

bottles. P.W.6 produced detailed report of the case, seizure lists,

copy of preparation and detection report, copy of F.I.R. before

P.W.4, the Financial Advisor and Chief Accounts Officer of

O.S.E.B. at Bhubaneswar who discussed in detail regarding the

case with P.W.6 and accorded sanction to launch prosecution

against the appellant. After obtaining sanction order, P.W.6

Page 9 of 37
// 10 //

submitted charge sheet on 21.10.1992 against the appellant

under section 7 and section 13(2) read with section 13(1)(d) of

the 1988 Act.

5. The defence plea of the appellant was one of

complete denial of the occurrence and it was pleaded that the

complainant (P.W.1) requested him to prepare the house rent bill

at the enhanced rate of Rs.400/- per month to which he declined

for which P.W.1 bore grudge against him as the distance

between his house and the village of P.W.1 was about 8 k.m. and

the appellant being a nearby villager could not help him. It was

also pleaded that on the date of incident, while he was working in

his office in a standing position, P.W.1 forcibly inserted money in

his pant pocket and that he had not demanded any bribe money

from him.

6. In order to prove its case, the prosecution examined

six witnesses.

P.W.1 Satrughan Sahu is the complainant of the case

who stated that Rs.10,216/- was his due from the Electricity

Department as arrear house rent. He met a clerk of the Electrical

Divisional Office, Keonjhar, namely, one Sinha Babu and

requested him to clear his dues, who told him that unless he

spent something, he would not be able to get his dues for which

Page 10 of 37
// 11 //

he wrote the report (Ext.1) and presented it in the Vigilance

Office on 01.02.1992. He again came to the Vigilance Office on

03.02.1992 and produced four hundred rupee currency notes and

two fifty rupee currency notes before the Vigilance Officer, which

were treated with some chemical powder. Those notes were kept

in a white folded paper and returned back to him with instruction

to give the currency notes to the appellant only on demand.

Another person was asked to accompany him to see the

transaction and give indication after acceptance of currency

notes by the appellant. He along with the over hearing witness

(P.W.2) proceeded to the Electrical Divisional Office and he

entered inside the office room of the appellant and P.W.2 waited

outside on the verandah. He gave the currency notes to the

appellant. He further stated that without the consent of the

appellant, he inserted the currency notes into his pant pocket

and shortly thereafter the Vigilance Officers rushed in and

challenged the appellant to have taken bribe. P.W.1 told the

Vigilance Officers that he had inserted the currency notes in the

pocket of the appellant. The hand wash of the appellant was

taken in some solution, which turned pink. The appellant

thereafter brought out the currency notes from his pant pocket

on being asked by the Vigilance Officer and give those to one of

Page 11 of 37
// 12 //

the members of the raiding party, who compared numbers noted

down earlier in the Inspection Bungalow and both tallied. He was

declared hostile by the Special Public Prosecutor for not

supporting the prosecution case fully and cross-examined.

P.W.2 Harihar Mohapatra was working as a clerk in

the Legal Metrology, Weights and Measure Department, Keonjhar

and he acted as an over hearing witness and he is also a seizure

witness. He stated that on the direction of Asst. Controller,

Weights and Measures, he went to the Vigilance Office on

02.02.1992, where he was instructed to come on the next day to

P.W.D. Inspection Bungalow at Keonjhar. On 03.02.1992, he

went to the P.W.D. Inspection Bungalow at about 7.00 a.m.

where P.W.1 told all of them that the appellant was demanding

Rs.500/- from him for payment of arrear bill and the date was

fixed to 03.02.1992 to give such money. P.W.1 produced

currency notes of Rs.500/-, which were treated with chemical

powder and kept in a paper and given to P.W.1 with instruction

to give the notes to the appellant and he was instructed to

accompany P.W.1, hear the conversation between him and the

appellant and give signal after acceptance of money by the

appellant. He further stated that he along with P.W.1 entered

into the office building of Electrical Executive Engineer and P.W.1

Page 12 of 37
// 13 //

entered inside the room of the appellant and he stood at the

door. The appellant enquired from P.W.1 whether he had brought

the money and P.W.1 answered it in affirmative and handed over

the money to the appellant, who received and kept them in his

left side pant pocket. P.W.2 came out and gave signal after which

the vigilance staff and others came there. By that time, P.W.1

and the appellant were standing in the hall and P.W.1 pointed

out to the appellant that he had received the money. Both the

hands of the appellant were caught and he was taken into his

room and his hand wash was taken which turned pink. The

appellant brought out the money from his pocket on being asked

and gave those to P.W.3 who verified the numbers with the

numbers noted earlier and the hand wash of the appellant was

again taken and the colour became pink and the hand wash of

P.W.3 was also taken. He is a witness to the seizure of different

seizure lists.

P.W.3 Prafulla Kumar Acharya was the A.D.V.O.,

Keonjhar who stated that on 02.02.1992, he had been to

Vigilance Office as per the direction of C.D.V.O. and he was

instructed to come on the next day. On 03.02.1992, he went to

the Inspection Bungalow where P.W.1 told them that the

appellant was demanding Rs.500/- to give him the arrear house

Page 13 of 37
// 14 //

rent. He corroborated P.W.2 regarding the events took place

thereafter and stated that a report detailing the preparation

made in the Inspection Bungalow was prepared, which he had

signed and a copy of the report was given to him. He further

stated that P.W.1 along with P.W.2 proceeded to the office of the

Electrical Executive Engineer. At about 11.00 a.m., they received

signal from P.W.2 and when they came inside the office, P.W.1

told them that he had given the money to the appellant which he

had kept in the right side back pocket of his pant. The hand wash

of the appellant was taken and P.W.3 compared the numbers of

the notes which the appellant had produced from his pant pocket

with the numbers already noted down and both tallied and his

hand wash was also taken. He is also a witness to the seizure of

different seizure lists.

P.W.4 Amulya Kumar Tripathy was the Financial

Advisor and Chief Accounts Officer of O.S.E.B., Bhubaneswar who

accorded sanction for prosecution of the appellant.

P.W.5 Pradeep Kumar Samantaray was the Scientific

Officer, State F.S.L., Bhubaneswar who on chemical analysis of

the sample bottles found presence of phenolphthalein in each of

them.

Page 14 of 37
// 15 //

P.W.6 Nrusingha Charan Naik was the Inspector of

Police, Vigilance, Keonjhar, who is the Investigating Officer and

he submitted charge sheet.

7. The prosecution exhibited twenty documents. Ext.1 is

the written report, Ext.2 is the preparation report, Ext.3 is the

detection report, Ext.4 is the seizure list of documents seized

from the office of Executive Engineer, Ext.5 is the seizure list of

service book of the appellant, Ext.6 is the seizure list of

attendance register, Ext.7 is the seizure list of savings pass book,

Ext.8 is the seizure list of copy of preparation report, Ext.9 is the

seizure list of wrapping paper, Ext.10 is the seizure list of other

money of the appellant, Ext.11 is the seizure list of pant of the

appellant, Ext.12 is the seizure list of hand wash of P.W.3, Ext.13

is the seizure list of hand wash of the appellant, Ext.14 is the

seizure list of tainted money, Ext.15 is the seizure list of hand

wash of the appellant, Ext.16 is the sanction order, Ext.17 is the

chemical examination report, Ext.18 is the spot map, Ext.19 is

the house rent bill for Rs.10,216/- and Ext.20 is the debit cash

voucher for Rs.10,216/-.

The prosecution proved seven material objects. M.O.I

is the brass seal, M.O.II to M.O.VI are the sample bottles and

M.O.VII is the packet containing tainted money.

Page 15 of 37
// 16 //

8. The appellant examined Niranjan Bebarta as D.W.1,

who was working as Dafadar attached to the office of Keonjhar

Electrical Division in which the appellant was the Accountant. He

stated that P.W.1 had rented his house in which the Electrical

Section Office at Telkoi was functioning and at about 11.25 a.m.,

he heard raised voices from the room of the appellant and went

there and found the appellant searching for some files kept in the

rack and P.W.1 was offering him something which he was

declining. Suddenly P.W.1 inserted something in the backside

pant pocket of the appellant and fled away and then Vigilance

police rushed into the room of the appellant and challenged that

he had taken bribe from P.W.1 to which the appellant declined

and the appellant told that P.W.1 forcibly inserted the money in

his back side pant pocket in spite of his refusal to accept the

same.

9. The learned trial Court after assessing the evidence

on record came to hold that there is no doubt that the appellant

was a public servant. It was further held that the appellant as an

Accountant, had a role in passing the arrear house rent bill of

P.W.1, which was in discharge of his duty and for that he had

received gratification of Rs.500/- from P.W.1 by abusing his

position as a public servant. It was further held that the

Page 16 of 37
// 17 //

appellant received gratification for passing the arrear house rent

bill of P.W.1 and the presumption under section 20(1) of the

1988 Act would be drawn against him that he had accepted for

himself gratification other than legal remuneration as a motive or

reward to do his duty in the exercise of his official functions in

favour of P.W.1. It was further held that the evidence of D.W.1

that he had seen that P.W.1 was offering something to the

appellant, which he was denying and then suddenly P.W.1

inserted something in the backside pant pocket of the appellant

and fled away is apparently false, which was not even the stand

of the appellant rather his stand was that P.W.1 at first offered

money to him, which he denied and thereafter, P.W.1 suddenly

inserted money inside his backside pant pocket. It was further

held that there is no specific material in the case from which it

could be inferred that P.W.4 was not competent to pass the order

sanctioning of prosecution against the appellant and further held

that the prosecution has ably proved the case against the

appellant beyond all reasonable doubt.

10. Mr. Ramani Kanta Pattnaik, learned counsel

appearing for the appellant contended that during course of trial,

the complainant (P.W.1) has not supported the prosecution case

on material aspects and he was declared hostile by the

Page 17 of 37
// 18 //

prosecution. The complainant stated that Sinha Babu had

demanded money from him and he had got the money to pay it

to Sinha Babu. He further stated that the appellant never

demanded money from him prior to lodging of the F.I.R. or on

the date of detection. When the appellant was engaged in his

official work, he inserted currency notes into his back side pant

pocket without his knowledge and when the appellant became

conscious of it, he objected and resisted his attempt. It is argued

that so far as the positive reaction of phenolphthalein test of both

the hand wash of the appellant is concerned, in view of the

evidence of P.W.1 that the appellant resisted his attempt to

insert currency notes into his pocket, the possibility of

phenolphthalein power coming into the contact of the fingers of

the appellant cannot be ruled out.

It is further contended that the evidence with regard

to recovery of tainted money from the backside pant pocket of

the appellant is discrepant in nature. P.W.2 has stated that it was

from left side pant pocket whereas P.W.3 has stated it to be from

right side pant pocket. P.W.6 is totally silent about which side of

the pant pocket of the appellant, the tainted money was

recovered and therefore, the recovery of tainted money from the

pant pocket should be viewed with suspicion.

Page 18 of 37
// 19 //

It is further argued that P.W.6 being the trap laying

officer is a highly interested witness and he should not have

investigated the case and submitted charge sheet which has

caused serious prejudice to the appellant.

It is further argued that the sanction order (Ext.16)

accorded by P.W.4 appears to have been issued in a mechanical

manner without application of mind as he has referred to the

draft sanction order sent by vigilance department and passed the

order. The sanction order being defective, it goes to the root of

the matter.

It is further contended that Ext.20 clearly reveals

that a cheque bearing No.692536 had already been paid to the

complainant since 01.02.1992 and no work was pending with the

appellant for making demand of bribe from the complainant on

03.02.1992. P.W.6 has admitted that the bill for arrear amount

was passed before the trap was laid and he had not seized any

cheque duly signed in favour of P.W.1.

According to Mr. Pattnaik, since the evidence

adduced by the prosecution is not reliable and cogent, benefit of

doubt should be extended in favour of the appellant. Reliance

was placed in the case of Satyananda Pani -Vrs.- State of

Page 19 of 37
// 20 //

Odisha (Vig.) reported in (2017) 68 Orissa Criminal

Reports 795.

11. Mr. Sanjay Kumar Das, learned Standing Counsel

appearing for the Vigilance Department on the other hand

supported the impugned judgment. It is his submission that even

if the complainant has not supported the prosecution case, but in

view of the other clinching materials available on record that the

appellant demanded bribe money and accepted the same, which

was also recovered from him coupled with the positive reaction

of phenolphthalein test of both the hand wash of the appellant

taken corroborates the acceptance of bribe money, the learned

trial Court rightly held the appellant guilty of the offences

charged. According to Mr. Das, all the relevant documents were

placed before the sanctioning authority and after thorough

discussion with the I.O., Ext.16 was issued and as such there is

no defect in it. He relied upon the decisions of the Hon'ble

Supreme Court in the cases of Vinod Kumar Garg -Vrs.- State

reported in A.I.R. 2020 Supreme Court 1797, Vinod Kumar

-Vrs.- State of Punjab reported in A.I.R. 2015 Supreme

Court 1206, T. Shankar Prasad -Vrs.- State of Andhra

Pradesh reported in (2004) 27 O.C.R. (S.C.) 599 and Koli

Page 20 of 37
// 21 //

Lakhmanbhai Chanabhai -Vrs.- State of Gujarat reported

in A.I.R. 2000 Supreme Court 210.

12. Law is well settled that mere receipt of the amount

by the accused is not sufficient to fasten his guilt in the absence

of any evidence with regard to demand and acceptance of the

amount as illegal gratification. The burden rests on the accused

to displace the statutory presumption raised under section 20 of

the 1988 Act by bringing on record evidence, either direct or

circumstantial, to establish with reasonable probability, that the

money was accepted by him, other than as a motive or reward

as referred to in section 7 of the 1988 Act. In a case where the

accused offers an explanation for receipt of the alleged amount,

while invoking the provisions of section 20 of 1988 Act, the Court

is required to consider such explanation on the touchstone of

preponderance of probability and not on the touchstone of proof

beyond all reasonable doubt. Therefore, whether all the

ingredients of the offences i.e. demand, acceptance and recovery

of illegal gratification have been satisfied or not, the Court must

take into consideration the facts and circumstances brought on

the record in its entirety and the standard of burden of proof on

the accused vis-à-vis the standard of burden of proof on the

prosecution would differ. The standard required for rebutting the

Page 21 of 37
// 22 //

presumption is tested on the anvil of preponderance of

probabilities which is a threshold of a lower degree than proof

beyond all reasonable doubt. It is only when this initial burden

regarding demand and acceptance of illegal gratification is

successfully discharged by the prosecution, then burden of

proving the defence shifts upon the accused. The proof of

demand of illegal gratification is the gravamen of the offences

under sections 7 and 13(1)(d) of the 1988 Act and in absence

thereof, the charge would fail. Mere acceptance of any amount

allegedly by way of illegal gratification or recovery thereof,

dehors the proof of demand, ipso facto, would not be sufficient

to bring home the charge under these two sections of the 1988

Act. The complainant cannot be placed on any better footing

than that of an accomplice and corroboration in material

particulars connecting the accused with the crime has to be

insisted upon. (Ref:- Satyananda Pani (supra), Vinod Kumar

Garg (supra), State of Punjab -Vrs.- Madan Mohan Lal

Verma : A.I.R. 2013 S.C. 3368; State of Maharashtra -Vrs.-

Dnyaneshwar : (2009) 44 Orissa Criminal Reports 425;

Punjabrao -Vrs.- State of Maharashtra : A.I.R. 2002 S.C.

486, V. Sejappa -Vrs.- State : A.I.R. 2016 S.C. 2045;

Panalal Damodar Rathi -Vrs.- State of Maharashtra: A.I.R.

Page 22 of 37
// 23 //

1979 S.C. 1191, Mukhitar Singh -Vrs.- State of Punjab:

(2016) 64 Orissa Criminal Reports (SC) 1016).

In the case of D. Velayutham -Vrs.- State

reported in (2015)12 Supreme Court Cases 348, while

discussing the evidenciary value of a decoy witness in a trap

case, it is held as follows:

"10. It would therefore be a derogation and
perversion of the purpose and object of anti-
corruption law to invariably presuppose that a
trap/decoy witness is an "interested witness",
with an ulterior or other than ordinary motive for
ensuring the inculpation and punishment of the
accused. The burden unquestionably is on the
defence to rattle the credibility and
trustworthiness of the trap witness' testimony,
thereby bringing him under the doubtful glare of
the Court as an interested witness. The defence
cannot be ballasted with the premise that Courts
will, from the outset, be guarded against and
suspicious of the testimony of trap witnesses."

Evidentiary value of decoy witness turned hostile:-

13. In the case in hand, the decoy (P.W.1) has not

supported the case of the prosecution in material aspects and

was declared hostile by the prosecution. Even though he has

mentioned about the demand of Rs.500/- by the appellant in the

first information report, but in his evidence, he has categorically

Page 23 of 37
// 24 //

stated that the appellant never demanded money from him. Law

is well settled that the F.I.R. does not constitute substantive

evidence; however it can be used as a previous statement for the

purpose of corroboration/contradiction to the maker thereof. The

allegation has to be proved at the trial. Conviction cannot be

based only on the allegation made in the F.I.R. (Ref:- A.I.R.

1995 S.C. 1437 : Madhusudan Singh -Vrs.- State of Bihar).

In the case of Utpal Das -Vrs.- State of West Bengal

reported in (2010) 46 Orissa Criminal Reports (SC) 600, it

is held that the first information report does not constitute

substantive evidence. It can, however, only be used as a

previous statement for the purposes of either corroborating its

maker or for contradicting him and in such a case, the previous

statement cannot be used unless the attention of witness has

first been drawn to those parts by which it is proposed to

contradict the witness.

P.W.1 stated in the examination in-chief that without

the consent of the appellant, he inserted the currency notes into

his pant pocket and shortly thereafter the Vigilance Officers

rushed in and challenged the appellant to have taken bribe.

P.W.1 further stated that the appellant denied to have taken any

bribe. P.W.1 further stated that he told the Vigilance Officers that

Page 24 of 37
// 25 //

he had inserted the currency notes in the pocket of the appellant.

After P.W.1 was declared hostile by the Special Public Prosecutor

for not supporting the prosecution case, though his statement

made in the F.I.R. and his previous statement before the I.O.

were confronted to him but his positive statement that he

inserted the currency notes into the pant pocket of the appellant

without his consent was not challenged. In the cross-

examination, he specifically stated that the appellant never

demanded money from him either prior to the lodging of F.I.R. or

on the date of detection and further stated that Sinha Babu

demanded money from him and he had got that money to pay it

to Sinha Babu. He clarified by saying in the cross-examination

that when the appellant was engaged in his official work, he

inserted currency notes into his back side pocket without his

knowledge. He further stated that when the appellant became

conscious of it, he objected and resisted his attempt to insert

currency notes into his pocket. Therefore, from the evidence of

P.W.1, it is not established that the appellant demanded or

accepted bribe money from P.W.1 for passing his bill of arrear

house rent.

In the case of Koli Lakhmanbhai Chanabhai

(supra), it is held that the evidence of hostile witness also can be

Page 25 of 37
// 26 //

relied upon to the extent to which it supports the prosecution

version and evidence of such witness cannot be treated as

washed off the record. It remains admissible in the trial and

there is no legal bar to base an order of conviction upon his

testimony if corroborated by other reliable evidence. In the case

of T. Shankar Prasad (supra), wherein it is held that even in

criminal prosecution, when a witness is cross-examined and

contradicted with the leave of the Court by the party calling him,

his evidence as a matter of law cannot be treated as washed off

record altogether. It is for the Judge of fact to consider in each

case whether as a result of such cross-examination and

contradiction, the witness stands thoroughly discredited or can

still be believed in regard to a part of his testimony. If the Judge

finds that in the process, the credit of the witness has not been

completely shaken, he may, after reading and considering the

evidence of the said witness, accept in the light of other evidence

on record that part of his testimony which he found to be

creditworthy and act upon it. In the case of Vinod Kumar

(supra), is held as follows:

"38.....As we notice, the authorities in B. Jayaraj
: (2014) 58 Orissa Criminal Reports (SC) 175:
2014 (I) Orissa Law Reviews (SC) 1014 and
M.R. Purushotam : (2015) 61 Orissa Criminal

Page 26 of 37
// 27 //

Reports (SC) 1034, do not lay down as a
proposition of law that when the complainant
turns hostile and does not support the case of
the prosecution, the prosecution cannot prove
its case otherwise and the Court cannot
legitimately draw the presumption under section
20 of the Act. Therefore the proposition, though
industriously, presented by Mr. Jain that when
Baj Singh, P.W.5, the complainant, had turned
hostile, the whole case of the prosecution would
collapse is not acceptable and accordingly
hereby rejected."

It is settled legal proposition that the evidence of a

prosecution witness cannot be rejected in toto merely because

the prosecution chose to treat him as hostile and cross examined

him. The evidence of such witness cannot be treated as effaced

or washed off the record altogether but the same can be

accepted to the extent his version is found to be dependable on a

careful scrutiny thereof. The portion of the evidence which is

consistent with the case of the prosecution or defence and are

admissible in law can be used by the prosecution or the defence.

The evidence of P.W.1 in the chief examination that

he inserted the currency notes into the pant pocket of the

appellant without his consent has remained unchallenged. The

prosecution has not re-examined P.W.1 even though in the

Page 27 of 37
// 28 //

cross-examination he has stated that Sinha Babu demanded

money from him and he had got that money to pay it to Sinha

Babu and that the appellant had never demanded money from

him either prior to the F.I.R. or on the date of detection and that

while the appellant was engaged in his official work, he inserted

currency notes into his back side pant pocket without his

knowledge.

Section 138 of the Indian Evidence Act, 1872 clearly

states that the re-examination shall be directed to the

explanation of the matters referred to in the cross-examination.

Therefore, if any ambiguity is cropped up during cross-

examination of a witness or a witness stated completely contrary

to what he has deposed in the chief-examination, it is

nonetheless the duty of the prosecution to make a prayer before

the learned trial Court for re-examination of such witness and to

explain the matters. The object is to give an opportunity to

reconcile the discrepancies, if any, between the statement made

in the examination-in-chief and cross-examination or to explain

any statement inadvertently made in cross-examination or to

remove any ambiguity in the deposition or suspicion cast on the

evidence by cross-examination.

Page 28 of 37
// 29 //

On a careful scrutiny of the evidence of P.W.1, I am

of the humble view that even though he has been declared

hostile by the prosecution, his evidence cannot be treated as

effaced or washed off the record altogether but the portion of his

evidence can be accepted to the extent it is found to be

dependable and consistent with the defence plea.

Evidence of P.W.2 and P.W.3 on demand and acceptance

and discrepancies:-

14. P.W.2 who was the shadow witness has no doubt

stated that the appellant enquired from the complainant (P.W.1)

whether he had brought money and the complainant answered

affirmatively and handed over the money to the appellant and

that the appellant accepted the same and kept it in his left side

pant pocket, but in view of the evidence of P.W.1 that he

inserted the currency notes into the pant pocket of the appellant

without his consent, the demand and acceptance part is very

difficult to be accepted.

P.W.3 stated that the complainant (P.W.1) disclosed

that he had given money to the appellant, who after receiving

the money had kept inside his right side back pocket of his pant.

This statement runs contrary to the evidence of P.W.1 who

stated that he told the Vigilance Officers that he inserted the

Page 29 of 37
// 30 //

currency notes into the pocket of the appellant while the later

was engaged in his official work.

There are discrepancies in the evidence of P.W.2 and

P.W.3 as to in which side of the back pant pocket of the

appellant, the money was kept. P.W.2 stated that the money was

kept in the left side back pant pocket whereas P.W.3 stated it to

be in the right side. It is not clear which hand of the appellant

was used in accepting the tainted money and whether he

counted it or not. A person accepting money in left hand can

easily keep it in the left side back pocket of his pant using left

hand. If he accepts money in right hand, normally he has to shift

it to his left hand first and then he can keep it in the left side

back pant pocket by using left hand. There is nothing on record

as to from which side of back pant pocket of the appellant, the

tainted money was recovered. The evidence of P.W.6, the trap

laying officer is also silent in that respect.

Evidence relating to the occasion for making demand:-

15. According to the prosecution case, the occasion arose

for demanding bribe money was to pass the arrear house rent bill

of the complainant amounting to Rs.10,216/-. P.W.1 specifically

stated that he was entitled to recover Rs.10,216/- as arrears of

house rent and he met one Sinha Babu, a clerk of the Electrical

Page 30 of 37
// 31 //

Division Office at Keonjhar and requested him for clearance of his

dues but he told him that he would not get his dues unless he

spent something as bribe. Sinha Babu is neither a witness nor an

accused in the case.

Ext.20 is the debit cash voucher for payment of

Rs.10,216/- to P.W.1 which had already been signed by the

appellant and the officer in-charge. P.W.6 has admitted that the

bill for arrear amount was passed before the trap was laid.

Ext.20 dated 01.02.1992 clearly reveals that a cheque bearing

No.692536 was issued to the complainant. Neither the cheque in

question was seized nor was the register relating to issuance of

cheque seized. Had those documents been seized and produced

in Court, it would have shown the date of preparation of the

cheque and the date of its issuance. In this connection, I would

also like to advert to the provisions contained in section 114(g)

of the Indian Evidence Act, which are to the effect that if

evidence which could have been produced, is not produced, the

presumption would be that it would have gone against the party

which withholds it. It would be reasonable to draw such inference

in this case. When the documentary evidence indicates that prior

to the date of trap, the bill for arrear amount was passed, the

debit cash voucher for payment in favour of the complainant had

Page 31 of 37
// 32 //

already been signed by the appellant, the cheque in favour of the

appellant had been prepared and the prosecution has failed to

prove the documentary evidence relating to the actual date of

issuance of the cheque in favour of the complainant, a

reasonable doubt is created relating to pendency of any work

with the appellant for making demand of bribe from the

complainant on 03.02.1992.

Analysis of defence plea:-

16. The defence plea of the appellant is that he had not

demanded any bribe money from P.W.1 and on the date of

incident, while he was working in his office in a standing position,

P.W.1 forcibly inserted money in his pant pocket. Such a plea

gets support from the evidence of P.W.1. D.W.1 who was

working as Dafadar in the office of Keonjhar Electrical Division

has also stated that when he came to the office room of the

appellant hearing raised voice, he noticed the appellant was

searching for some file kept in the rack and P.W.1 inserted

something in the backside pant pocket of the appellant. No

doubt, the phenolphthalein was detected during the chemical test

of both the hand wash of the appellant taken together and it

indicates that the appellant's hands came in contact with the

tainted money but from the findings of such report, it cannot be

Page 32 of 37
// 33 //

inferred that the appellant accepted the bribe money voluntarily.

In view of the evidence of P.W.1 that the appellant resisted his

attempt to insert currency notes into his pant pocket, the

possibility of phenolphthalein power coming into the contact of

the fingers of the appellant cannot be ruled out. The learned Trial

Court seems to have not considered the defence plea of the

appellant on the touchstone of preponderance of probability and

whimsically rejected it holding the same to be apparently false.

While judging the veracity of witnesses, there cannot be any

different yardstick for judging the prosecution witnesses or

defence witnesses and the defence witnesses are to be given

equal treatment with the prosecution witnesses. The appellant

was not supposed to establish his defence plea by proving it

beyond reasonable doubt like the prosecution but by

preponderance of probability. The prosecution cannot derive any

advantage from the falsity or other infirmities of the defence

version, so long as it does not discharge its initial burden of

proving its case beyond all reasonable doubt. A false plea set up

by the defence can at best be considered as an additional

circumstance against the accused provided that the other

evidence on record unfailingly point towards his guilt.

Page 33 of 37
// 34 //

Trap laying officer is the investigating officer:-

17. Adverting to the contention raised by the learned

Counsel for the appellant that P.W.6 being the officer in-charge

of the success of trap should not have investigated the matter as

he is a highly interested witness, there cannot be any second

opinion that in a trap case, the trap-laying officer plays a vital

role and his craft in managing everything right from the stage of

preparation till the trap is successfully completed and preparation

of all the necessary documents assumes much importance. The

officers of the Vigilance Department must secure independent

and respectable witnesses so that evidence in regard to raid

inspires confidence in the mind of the Court and the Court is not

left in any doubt whether or not any money was paid to the

public servant by way of bribe. It is also the duty of the officers

of the Vigilance Department to safeguard for the protection of

public servant against whom a trap case may have been laid. The

other parts of investigation after the successful trap i.e.

examination of witnesses, collection of material documents,

sending the articles for chemical analysis and obtaining sanction

from competent authority till the submission of final form has

also got its importance. In the fairness of things, the role/task of

trap laying officer should end immediately after the trap is over

Page 34 of 37
// 35 //

and the investigation after a successful trap is required to be

conducted by another officer higher in rank than the trap laying

officer. However, unless any prejudice is shown or any glaring

infirmity or illegality in the investigation is established, the

prosecution case cannot be discarded merely on that score.

Whether sanction order (Ext.16) is defective:-

18. The I.O. (P.W.6) has stated that on 30.09.1992, he

produced detailed report of the case along with other documents

like seizure lists, copies of preparation and detection report, copy

of F.I.R. before P.W.4 and discussed with him in detail regarding

the case and after obtaining the sanction order, he submitted

charge sheet. P.W.4 has also stated that the I.O. came twice or

thrice for having discussion with him and he perused the relevant

documents sent by the vigilance department along with C.D. and

had discussion with the I.O. and after application of mind, he was

satisfied and accorded sanction to launch prosecution against the

appellant. In the cross-examination, P.W.4 has stated that he

might have referred to the draft sanction order sent by vigilance

department.

Sanction under section 19 of the 1988 Act is

necessary to see that a public servant is not entangled in a

frivolous and false case. Sanction insulates a public servant from

Page 35 of 37
// 36 //

a false or vexatious or frivolous prosecution. The exercise of

power under section 19 is not an empty formality since the

Government or for that matter the sanctioning authority is

supposed to apply its mind to the entire material and evidence

placed before it and on examination thereof reach conclusion

fairly, objectively and consistent with public interest as to

whether or not in the facts and circumstances sanction be

accorded to prosecute the public servant.

There is no challenge to the competency of P.W.4 to

issue sanction order. Nothing has been elicited in the cross-

examination to show that the material documents were not

produced before the sanctioning authority or he has passed

Ext.16 in a mechanical manner without applying mind carefully to

the facts and circumstances of the case. Therefore, the

contention raised by the learned counsel for the appellant that

the sanction order is a defective one cannot be accepted.

19. In view of the foregoing discussions, the prosecution

evidence with regard to demand and acceptance of bribe amount

of Rs.500/- by the appellant from the complainant (P.W.1) for

passing his house rent bill appears to be shaky in nature. When

the defence plea has been established by preponderance of

probability and there is absence of sufficient, cogent and reliable

Page 36 of 37
// 37 //

evidence on record to establish the guilt of the appellant beyond

all reasonable doubt and the impugned judgment suffers from

perversity, the same cannot be sustained in the eye of law and

accordingly, I am constrained to give benefit of doubt to the

appellant.

20. In the result, the criminal appeal is allowed. The

impugned judgment and order of conviction of the appellant

under section 7 and section 13(2) read with section 13(1)(d) of

the 1988 Act and the sentence passed thereunder is hereby set

aside and the appellant is acquitted of all the charges. The

appellant is on bail by virtue of the order of this Court. He is

discharged from liability of his bail bond. The personal bond and

the surety bond stand cancelled.

.................................
S. K. Sahoo, J.

Orissa High Court, Cuttack The 21st October 2021/RKMishra Page 37 of 37

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