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Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.150 of 1992 (In the matter of an application under Section 374 of the Criminal Procedure Code, 1973) Abdul Hamid ……. Appellant -Versus- State of Orissa (Vigilance) ……. Respondent For the Appellant : Ms. A.K. Dei, Amicus Curiae For the Respondent : Mr. M.S. Rizvi, Additional Standing Counsel (Vigilance) CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 02.07.2024 :: Date of Judgment: 29.10.2024 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Section 374 of the Cr. P.C., is directed against the judgment and order dated 26.03.1992 passed by the learned Special Judge (Vigilance),
Legal Reasoning
Sambalpur in T.R. Case No.22 of 1986, whereby the learned trial Court has convicted the accused-appellant for the offences under Section 161 of the I.P.C. and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1988. 2. The prosecution case, in brief, is that the accused-appellant was a record-keeper in the Kuanrmunda Tahasil Office and he demanded a
Legal Reasoning
bribe of Rs.2,000/- from the complainant, Srimanta Narayan Das, to issue a certified copy of the order sheet, patta, etc., of the Encroachment Case No. 11 of 1978-79. Aggrieved by this, the complainant reported this to the vigilance authorities. The Vigilance staff arranged a trap to catch the accused red-handed, who asked the informant to pay the bribe money at 4:00P.M. on 26.10.1985 at the office of Voltam Engineering Office, which belong to one Ganeshram Modi, the master of the complainant. The complainant, along with the accompanying witness, went to the said office and collected the certified copies from the accused-appellant who then demanded the bribe of the said amount. While the accused counted the tainted money, after receiving the same, the accompanying witness gave a signal to the raiding party and was apprehended the accused red handed. The commission of the act of Page 2 of 13 bribery was confirmed by the Vigilance officers form part of the raiding party. After completion of investigation and obtaining sanction from the District Magistrate to prosecute the accused/appellant, the charge-sheet was filed and the accused was put to trial. 3. The prosecution, in order to substantiate the charges, examined as many as 8 witnesses, including the complainant as P.W.5., and exhibited 14 documents. P.W.7 who was the magisterial witness who took part in the preparation and trap, P.W.8 is the Vigilance Inspector who arranged the trap and one I.O. Also prosecution had exhibited 14 documents. On the other hand, the defence examined 3 witnesses in support of his defence. The appellant took the plea that for the purpose of purchasing iron rods and cement for construction work from the complainant at a reduced price, the amount of Rs.2,000/- was given in advance and the money was not meant for bribery. 4. The learned trial Court, after analyzing the entire evidence on record and relying heavily on the testimonies of P.Ws.5, 7 and 8, came to the conclusion that the accused-appellant is guilty of the offences punishable under Section 161 of the I.P.C. and Section 5(1)(d) read with Page 3 of 13 Section 5(2) of the Prevention of Corruption Act, 1988 and accordingly sentenced the appellant on each count. The learned trial Court sentenced the accused-appellant to undergo R.I. for one year for the offence under Section 161 of I.P.C., and to undergo R.I. for two years and imposed a fine of Rs.500/- (rupees five hundred) and in default, to undergo R.I. for further three months for the offence under Section 5(1)(d) of the P.C. Act 1988. 5. Being aggrieved by the aforementioned judgment of conviction and order of sentence passed by the learned trial Court, the present Appeal has been preferred by the sole appellant. 6. The present appeal has been pending since 1992. Since nobody appeared for the appellant despite repeated adjournments, this Court vide order dated 28.02.2024 appointed Ms. A. K. Dei, learned counsel to assist this Court as Amicus Curiae. 7. Heard Ms. A.K. Dei, learned Amicus Curiae and Mr. M.S. Rizvi, learned Additional Standing Counsel for the Vigilance Department. 8. Ms. Dei, learned Amicus Curiae submitted that the prosecution to prove that the accused made a demand of bribe and accepted the Page 4 of 13 gratification other than legal remuneration has not brought sufficient material. In the instance case the prosecution absolutely failed to establish the fact that the accused obtained for himself any pecuniary advantage or gratification on demand. The impugned order of conviction is bad in law. 9. She further submitted that the evidence of the witnesses i.e. P.Ws.1, 2, 5, 7 and 8 are sufficiently contradictory and discrepant in regard to the denomination of the tainted currency notes, place of detection and acceptance of the tainted money by the accused as illegal gratification. The learned Court below wrongly reposed confidence on the versions of all these witnesses in convicting the accused under Section 161 of the I.P.C. and Section 5(1)(d) of the P.C. Act 1988. She also submitted that the law being well settled that the evidence of a bribe giver being in the nature of an accomplice cannot be relied upon without corroboration on material particulars. In the instant case, there being no corroboration on material particulars to the evidence of P.W.5, the complainant that the accused received Rs.2,000/- towards illegal gratification abusing his position as public servant for grant of the Page 5 of 13 certified copies applied for under Ext.5, the learned Court below ought not to have placed reliance on the evidence of P.W.5 and recorded conviction of the accused under Section 161 of I.P.C. and Section 5(1)(d) of the P.C. Act 1988. 10. Per contra, Mr. Rizvi, learned Additional Standing Counsel for the Vigilance Department submitted that in the present case, the testimony of the prosecution witnesses are unimpeachable. The factum of demand and acceptance has been proved beyond all reasonable doubts. Therefore, no fault could be found from the judgment of the learned trial Court, which is true reflection of the appreciation of evidence in the right prospective. 11. I have carefully perused the judgment passed by the learned Court below and analyzed the evidence on record. The learned trial Court accepted the prosecution version regarding the demand being made by the appellant for imparting official favour by relying upon the testimony of P.Ws.4 and 5. Relevant would be to reproduce the findings recorded by the Court below regarding the acceptance of demand, which reads as under:- Page 6 of 13 <7. Regarding the demand of bribe the evidence of P.Ws.4 and 5 are relevant. P.W.5 states that he was the power of attorney of his master Govindram Modi and was looking after the official work of his master. He say that his master applied on 17.10.85 for certified copies of the order sheet and patta etc. in the lease case and on the instruction of his master he went to the Tahasil office on 20.10.85 and approached the accused for the certified copies. P.w.5 says that the accused told him that the certified copies was ready but he would deliver there copies only after a sum of Rs.2,000/- is paid to him. P.W.5 then says that he contacted his master p.w.4 and told him about the demand and then both came to the accused who again told the that unless Rs.2,000/- is paid so brike to him the copies would not be delivered. Then he and p.w.4 contacted the accused on 24.10.85 and told that money should be paid on 26.10.85 at the office of Voltam Engineering Kuarunda belonging to p.w.4. P.W.5 says that on the instruction of P.W.4 he reported the master to the vigilance authority Rourkela by a written report Ext.9, and the D.S.P. who accepted the report asked him to come at 11 a.m. on 26.10.85 with cash of Rs.2,000/- and on the appointed date and time he sent to the Vigilance office with the money and found the vigilance staff and two others present. He says that he was introduced to those persons and the D.S.P. asked him to narrate the complaint and he told before all of them that the accused was demanding a bribe of Rs.2,000/- to deliver the certified copies. P.W.4 said that he applied for the certified copies of the patta, order sheets etc. of encroachment case No.11 of 1978-79 as those documents are were essential for the purpose of mutation of the land in his name. He proved his application Ext.5. This witness says that he entrusted the matter to his power of attorney holder p.w.5 and this p.w.5 after some days came and told him that the accused was demanding bribe of Rs.2,000/- for issuing those certified copies. He says that he had no alternative and so unwillingly he decided to pay bribe but he asked p.w.5 to report the matter to the vigilance people and accordingly p.w.5 reported the matter to the S.P. Vigilance, Sambalpur through D.S.P. Vigilance Rourkela and on 25.10.85 he gave Rs.2,000/- to p.w.5 so that money would Page 7 of 13 be utilized as bribe money to the accused. In the F.I.R. Ext.9 P.W.5 has clearly mentioned that the accused demanded bribe of Rs.2,000/- from him for issuing the certified copies of Order sheet and documents applied for. P.W.1, 2, 7 and 8 who were present at the vigilance office on 26.10.85 in the fore noon during the preparation also confirmed that in their presence p.w.5 narrated that the accused was demanding a bribe of Rs.2,000/- from him for issuing the certified copies applied for by p.w.5. Nothing substantial has been brought out in the cross-examination of these witnesses to disbelieve their statements regarding the aspect of demand of bribe.= Similarly in paragraph-9 of the judgment, the trial Court by relying upon the testimony of P.Ws.2, 5, 7 and 8 have believed and accepted the evidence of the prosecution regarding the acceptance of the tainted money by the appellant. Paragraph-9 of the judgment reads as under:- <9. Regarding the payment and acceptance of bribe and detection the version of p.w.2, 5, 7 and 8 are important. All these witnesses say that they went from vigilance office, Rourkela to Kuarmunda in Government Vehicle P.W.5 says that while others took their positions near the voltam Engineering office he and p.w.2 went to the office room and waited for the accused. He says that the accused came at about 4.20 to 4.25 p.m. and asked him whether p.w.4 has given him Rs.2,000/- for him and then he replied in the affirmative the accused demanded money from him and he paid the tainted money to the accused. The accused received the money in his right hand and gave him the certified copies and started counting the money. At this time the vigilance staff and the Magistrate came getting the signal from p.w.2. He says that after disclosing their identity the vigilance officers challenged the accused that he received bribe of Rs.2,000/- and the accused started trembling and some Page 8 of 13 currency notes fell down from his hands. He says that the currency notes were collected by the Magistrate p.w.7 and then p.w.7 compared the number of these currency notes in the list which he had prepared earlier. The number of these notes agreed the list. He says that the Vigilance staff took the hand wash of the accused with the sodium carbonate solution and the sodium carbonate solution became pink and that solution was preserved in a bottle which was sealed. He says that p.w.8 then prepared a detection report and seized the currency notes, the paper containing the number of the currency notes and certified copies which the accused had brought, the bottle containing the hand wash from the spot and prepared seizure list Ext.1 and 10, detection report Ext.4 p.w.5 then says that p.w.8 also seized the encroachment case record, bearing No.11 of 78-79 from the Tahasil office in his presence and prepared seizure list. Ext.7. p.w.7 and 8 fully corroborate the statement of p.w.5 p.w.2 some how gave a different picture. He said that he and p.w.5 went to the Tahasil office and there p.w.5 met and talk with the accused and he gave signal and the vigilance officer and Magistrate came and washed the hands of the accused with sodium carbonate solution which became pink and they seized the currency notes which were lying on the ground and so the currency notes which were there in the hands of the accused, and the number of these notes agreed with the list which had been prepared earlier. He spoke about the seizure of the articles and proves seizure lists Ext.1 and 2, He also proved the preparation report and detection report.= P.W.5 stated that the accused had the certified copies of the documents in his possession and he said he would only deliver the same upon receipt of the bribe amount of Rs.2,000/-. Further, P.W.4, the accompanying witness, corroborated that the accused demanded the bribe amount of Rs.2,000/- from the complainant when the trap was laid Page 9 of 13 and that the complainant delivered the amount to him. This was again corroborated by the testimony of P.W.7, the magisterial witness, who participated in the preparation of the trap. P.W.8, the Vigilance Inspector who investigated the case also deposed on the same line. 12. In the instant case, the appellant has admitted that he has received Rs.2,000/- from the complainant, which is being witness by the trap laying party through adequate evidence. However, so as to escape from the presumption under Section-20 of the P.C. Act 1988, he put forth a defence story. The appellant had led defence evidence to explain the cause of accepting the tainted money and stated that the alleged tainted money so received by him was not made for gratification rather he had given on advance for purchasing of rod and cement articles for construction to be done in his house. The learned trial Court dealt with the defence plea and returned the following findings:- <11. The plea of the accused is that he had given an advance of Rs.2,000/- to P.W.5 because P.W.5 offered to supply cement and iron rod and when p.w.5 failed to supply those articles he demanded refund of the advance money and after much persuasions p.w.5 refunded the money on 26.10.85 to him at voltam Engineering. The accused examined, P.W.3 to prove the payment of advance. He said that on the date of payment of advance he had only Rs.1,500/- with him and so Page 10 of 13 that he borrowed the rest Rs.500/- from D.W.3 and paid Rs.2,000/- to p.w.5. D.W.3 said that one day the accused came with another person on a scooter and told him that he has purchased something for Rs.2,000/- but he running short by Rs.500/- and requested him to lend Rs.500/- to him and so he gave Rs.500/- to the accused. The accused as D.W.2 stated that he borrowed the money to pay advance to P.ws.5 but the accused had already purchased D.ws.3 says something and to make payment for the said purchase he borrowed this money in 1985 D.W.3 says that this money was borrowed in 1986. The accused D.W.2 said that he used to record all the expenditure and purchases regarding this construction in a book of account but he has not mentioned about payment of Rs.2,000/- to p.w.5 in this account book and has also not mentioned in that note book or anywhere about borrowing Rs.500/- from D.W.3. D.W.3 also says that he did not note or mention any where that he gave a loan of Rs.500/- to the accused. That apart the accused says that he has no knowledge or information that p.w.4 or p.w.5 self iron rod and cement or that they ever supply iron rod or cement to any one. With this knowledge he could never have advanced a heavy advance of Rs.2,000/- to p.w.5 whom be considers a vagabond. In short the above circumstances do not at all raise a believable case that the accused gave an advance of Rs.2,000/- to p.w.5.= 13. I have gone through the entire evidence particularly the evidence of P.Ws.1, 4, 5, 7 and 8. I have no reason to disagree with the findings recorded by the Court below. In fact, the Court below has very meticulously dealt with the entire evidence and appositely appreciated the same to arrive at a conclusion that the appellant is guilty of offences punishable under Section 161 of the I.P.C. and Section 5(1)(d)/ 5(2) of the P.C. Act. Therefore, I am not inclined to entertain this appeal. Page 11 of 13 14. At this stage, Ms. Dei, learned Amicus Curiae submits that while the impugned judgment was passed by the learned trial Court, the appellant was 50 years old. The present appeal is pending since last 31 years. Therefore, the appellant at present is more than 81 years old. At the late evening of life of the appellant, sending him to custody would be very harsh. Therefore, Ms. Dei, seeks leniency on sentence. 15. Regard being had to the fact that the appellant is more than 80 years of age, I am inclined to accept the submission made by Ms. Dei, learned Amicus Curiae. The proviso to Section 5(2) of the un-amended Prevention of Corruption Act, 1988 empowers the sentencing Court to reduce the sentence below the minimum sentence of one year by recording sufficient reasons. The provision reads as under:- <5. Criminal misconduct in discharge of official duty- (1) A public servant is said to commit the offence of criminal misconduct:- (a) xxx (b) xxx (c) xxx (d) xxx (e) xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx xxx (2) Any public servant, who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which Page 12 of 13 may extend to seven years and shall also be liable to fine: Provided that the court may, for any special reasons recorded in writing impose a sentence of imprisonment of less than one year.” 16. Accordingly, while confirming the conviction recorded against appellant, the sentence awarded by the learned trial Court for the reasons stated above is liable to be varied. Sentence order passed by the trial Court is accordingly modified and the appellant is sentenced to undergo R.I. of one week with a fine of Rs.5,000/-, in default of making the payment, the appellant shall undergo further R.I. for two days. 17. With this observation, the CRLA is partly allowed. 18. This Court acknowledges the effective assistance rendered by Ms. A. K. Dei, learned Amicus Curiae in this case. Learned Amicus Curiae is entitled to an honorarium of Rs.7,000/- (Rupees seven thousand) to be paid by the State as a token of appreciation. (S.S. Mishra) Judge The High Court of Orissa, Cuttack. Dated the 29th October, 2024/ Swarna Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 04-Nov-2024 11:15:56 Page 13 of 13