The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.155 of 1997 (In the matter of application under Section 374(2) of the Criminal Procedure Code, 1973) Babulal Sahu ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Abhas Mohanty, Advocate For the Respondent : Mr. M.S. Rizvi, Addl. Standing Counsel (Vigilance) CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing:23.07.2024 : Date of Judgment: 29.10.2024 S.S. Mishra, J. The present Criminal Appeal at the behest of the appellant under Section 374(2) of the Cr. P.C., is directed against the impugned judgment and order dated 11.07.1997 passed by the learned Special Judge (Vigilance), Sambalpur in T.R. Case No. 26 of 1994,
Legal Reasoning
whereby the learned trial Court has convicted the accused-appellant for the offences under Section 13(1)(d) read with Section 13(2) and Section 7 of the Prevention of Corruption Act, 1988 and sentenced him on that count. 2. The prosecution case, in brief, is that the father of the complainant owned landed property measuring about Ac.27.00 dec. and he sought for mutation of the said property in his name. He approached the Tahasildar, Rengali who initiated the Mutation cases bearing Nos.588/91 to 595/91 and called for the enquiry report from the R.I. of Laida. However, when the complainant approached the R.I. of Laida, the accused-appellant in the present case demanded Rs.1,000/- as bribe in relation to the said mutation case. Subsequently, the accused agreed to a lesser amount of Rs.600/- as bribe, out of which, the complainant agreed to pay Rs.250/- in the first instance against his will. Aggrieved by such demand, the complainant reported this incident to the S.P. (Vigilance), who then directed registration of the Vigilance P.S Case No.29 dated 02.11.1991 at the Sambalpur Vigilance Police Station. 3. Trap was arranged as per the Standard Procedure and the accused was caught red-handed while accepting the bribe amount of Rs.250/- Page 2 of 16 from the complainant. The sanction of prosecution against the accused was obtained and the accused was accordingly put to trial. 4. During the trial, the Prosecution, in order to substantiate the charges, examined 8 witnesses and exhibited 14 documents, whereas the defence presented a stance of denial of allegations and examined 1 witness, i.e., D.W.1, thereof. Out of the 8 prosecution witnesses, P.W.1, a Senior Clerk working in the office of the Settlement Officer, Major Settlement, Sambalpur, was the accompanying witness. P.W.2, an Assistant Store Keeper in the Sambalpur Major Settlement Office, was a member of the trap party and a seizure witness. P.W.3, a Senior Clerk in the office of the Tahasildar, Rengali, produced the relevant Mutation Case Records for seizure by the I.O. P.Ws.4 & 5 were present during the trap set for the accused. P.W.6 was the then District Magistrate & Collector, Sambalpur, who accorded the sanction to prosecute the accused/appellant. P.W.7 was the A.S.O. of Sambalpur Major Settlement Office, whereas, P.W.8 was the I.O. in the present case. 5. The learned trial Court made assessment of the evidence on record and relied on the testimony of P.W.8, the I.O., which as per the Page 3 of 16 prosecution fully corroborated with that of the complainant’s version, and thus, convicted the accused-appellant. The learned trial Court sentenced the accused-appellant to undergo R.I. for a period of one year and to pay a fine of Rs.1,000/-, and in default, to undergo R.I. for three months more under Section 13(1)(d) read with Section 13(2) of the P.C. Act and to undergo R.I. for six months and to pay a fine of Rs.500/-, and in default, to undergo R.I. for one more month under Section 7 of the P.C. Act, whereby the sentences on both the counts was directed to run concurrently. 6. The accused-appellant is aggrieved and dissatisfied by the judgment of conviction and order of sentence of the learned trial Court, assailed the same in the present Criminal Appeal. 7. I have carefully evaluated the evidence and analysed the judgment of the learned trial Court. The learned trial Court found the evidence brought on record by the prosecution to be credible and relying upon those evidence recorded a finding that the prosecution has proved the factum of demand and acceptance of bribe by the accused/appellant from the complainant. The trial Court has also recorded that the paraphernalia Page 4 of 16 procedure has been meticulously followed by the trap laying party. Therefore, there is enough material brought on record by the prosecution to establish the case against the appellant without any doubt. The trial Court recorded the following findings:- <11. Evidence of trap witnesses, such as P.Ws.5,7 & 8 leaves no doubt that the accused became fumbled at the first instance, and he could not say anything to the querry made by the I.O. P.W.8 as to how the tainted money came into his possession. He could have stated at the first instance itself that he accepted the said amount as demarcation fee but instead he kept quiet. It is only after his palm wash was taken, he admitted to have accepted the money from the complainant. This shows, the accused made of his mind and stated so, which is nothing but the result of after- thought. It is also seen from the cross-examination of the I.O. (P.W.8) that the defence has not suggested to him that he did not allow the collection Mohurrir, if at all present, in the office of the R.I. at the material time, to issue receipt to the complainant for acceptance of Rs.250/- as demarcation fee. Therefore, considering evidence of P.W.5, Detection Report (Ext.2), hand- wash of the accused coupled with evidence of P.W.7 and 8, I am bound to arrive at an irresistible conclusion that the accused after renewal of his demand, accepted the tainted money from the complainant as bribe for submitting Enquiry Report in connection with Mutation Cases, as a motive or reward. This conclusion becomes unescapable also for the reason that when P.W.8, the I.O. made over the detection report (Ext.2) to the accused, he accepted it without objection making his endorsement thereon to this effect after its contents were read over and explained to him. Nothing prevented him from protesting the said report, had his plea that Rs.250/- was accepted by him as demarcation fee been true. He has examined Bhimsen Sahu as D.W.1 to substantiate his plea, but his admission in his evidence to the effect that he has stated that the accused accepted the money towards demarcation fee and he was going to get the Receipt Book from the almirah to issue Page 5 of 16 the other Receipt to the complainant and just then the accused was caught by the raiding party, and he was also prevented from issuing any receipt to the Complainant, shows that he has made this statement in the court for the first time. If at all, he was present on the spot, and had the money been paid as demarcation fee, then he could have made hue and cry before his authority that the innocent R.I. has been entrapped. That being so, his evidence is not at all worthy of credence, and it cannot be accepted and relied upon to believe the defence theory of the accused so as to disbelieve and discard the prosecution case in support of which there is over-whelming evidence of P.W.5 the trap complainant corroborated by evidence of witnesses including the Magistrate (P.W.7) and the I.O. (P.W.8) who played the major role in successfully detecting the case of bribery against the accused. For another reason, why the explanation offered by the accused through D.W.1 is not acceptable, is that in his evidence, he has stated that the complainant threatened the accused to see him in future but this fact has never been suggested to the complainant during his cross-examination, for which it is held that D.W.1 is no other than a got up witness who has spoken falsehood to save the accused-R.I. In this connection, evidence of P.W.3 can be referred to, to the effect that in Mutation Cases, demarcation fee is required to be collected after finalisation of Mutation proceeding, and that not in all cases the R.1.collects demarcation fee before submitting enquiry reports. In the present case, the accused-R.I. with-held enquiry reports till the date of trap. For the reason stated above, and in view of the facts and circumstances of the case, inference can be drawn that he was not submitting enquiry report for obtaining illegal gratification from the complainant unless and otherwise there was no reason why the complainant would go to the Vigilance Office to report against the accused-R.I. particularly when there was no inimical relation between them prior to the occurrence.=
Legal Reasoning
8. Mr. Mohanty, learned counsel for the appellant submitted that the trial Court has completely brushed aside the defence plea taken by the appellant to dispel the presumption under Section 20 of the P.C. Act Page 6 of 16 which was read against the petitioner by the prosecution. He has stated that the accused-appellant in his statement under Section 313 Cr.P.C. has taken a specific plea on his defence regarding the acceptance of alleged tainted money towards the fee for mutation. The said statement was substantiated by him by adducing evidence of the Amin who was indeed present at the spot, while the trap was laid. The credible defence evidence of D.W.1 could not have been ignored by the trial Court. Learned counsel has highlighted question Nos.10 & 17 put to him in his statement under Section 313 Cr.P.C. which are reproduced below:- <Q-10 It transpires from the evidence of P.W.1 & 5 that as per the instruction given to them they went to your office. P.W.5 entered into your office along with P.W.1 whom was introduced to you as his relation. Then you asked the complainant if he had brought the money as per your earlier bargain. Accordingly, he handed over the tainted money to you on your demand, you counted the tainted money and kept the same on your table under a paper weight. Soon thereafter P.W.1 gave pre-arranged signal to the raiding party who rushed immediately inside your office. What have you got to say? Ans- The Complainant paid the amount towards fees of demarcation in 8 mutation cases in respect of 55 plots. But I have not received the said amount as bribe for doing his work. Q-17. After hearing prosecution witnesses what more have you got to say? the entire evidence of the Page 7 of 16 Ans- The complainant has encroached a Govt. Land. When I objected to it he became revengeful. So he foisted this false case me. He paid Rs.250 towards demarcation fees. At that time Bhimsen Sahu collection Moharir was in my office. I told him to bring the receipt for Rs.220 but before the said receipt was issued I was caught by the raiding party. I am innocent of the allegation.= 9. The aforementioned stance taken by the appellant has been substantiated by the appellant in his defence evidence through D.W.1, who in his testimony inter alia stated as under:- <2. On 2.11.91, I and the R.I.-accused at about 7 to 8 A.M. set out from our office together with official records for collection of revenue. We met one Prafulla Patel on the way at the entrance. He asked the R.I. as to why he has not submitted his report in the Mutation Cases filed by his father. The R.I. replied that he had not deposited the demarcation fee at the rate of Rs.4/- per plot, altogether coming to Rs.220/- for 55 plots to which the land to be demarcated was consisted of. Hearing this, Prafulla Patel got angry with the accused and he went away telling that he would see him. Then we went for collection of revenue and returned at about 6 P.M. of the said day. On our return, I found Prafulla Patel accompanied by another. Prafulla Patel called the accused and offered demarcation fee in my presence. Then accused went inside his office followed by me. Prafulla Patel entered the room thereafter. Prafulla Patel made over Rs.250/- in the shape of five 50 rupee G.C. notes. The accused-R.I. kept the said money on his table and told me to bring Receipt Book, Mutation Case records and also to issue Receipts in support of payment of demarcation fee. Accordingly, I brought the Receipt Book and 8 Mutation Applications. While I was about to issue receipts to the complainant by setting carbon, the raiding party entered Page 8 of 16 our office, caught hold of the hands of the accused giving their identity to him and told me not to issue receipt to the complainant. Then they challenged the accused-R.I. to have taken bribe from the complainant to which he denied and stated instead that the complainant paid him a sum of Rs.250/- towards demarcation fee of 55 plots in respect of which mutation applications were put in by his father for which he told his mohurrir to grant the receipt in support of the said amount and to return the balance amount of Rs.30/-. The Vigilance Raiding Party seized the receipt book and also the money of Rs.250/- from me along with the Mutation Applications. Complainant Prafulla Patel made over Rs.250/- to the accused as bribe, for submitting his enquiry report, in the Mutation Cases.= is not a that fact It The said defence witness sustained elaborate cross-examination by the prosecution but the prosecution could not elucidate anything in its favour, rather in the cross-examination, the said witness has categorically stated as under:- <It is not a fact that the R.I. told me to issue receipts in support of payment of demarcation fee of Rs.220/- by the complainant in the evening of 2.11.91. It is a fact that it is for the first time I am giving the statement in the Court that the accused R.I. told me to issue Receipt to the complainant in support of payment of Rs.220/- as demarcation fee and that I could not issue the said receipts as the I.O. seized the same. It is not a fact that I am telling lie to save the accused as he is my colleague.= 10. The defence version could also be inferred from the prosecution evidence. P.W.1 in his statement in paragraph-3 has stated that one Amin (D.W.1) was present in the office of the R.I./appellant. The Amin, who Page 9 of 16 had come with the R.I. to their office, was going to issue a receipt to the decoy by bringing the receipt book from the almirah, just at that time, the vigilance raiding party members rushed in. Two vigilance police officers caught hold the hands of the accused by disclosing their identity. After reaching the office of the accused/R.I., the decoy did not report anything before us. After the alleged raid, we went outside for taking tea and again returned to the office of the R.I. Similarly, P.W.3 in his deposition at paragraph-2 has stated that <if a party makes an application for mutation of the land is made, the Tahasildar concerned asked the R.I. to furnish a report=. The R.Is. in some cases collected demarcation fees and then furnish a report to the Tahasildar and sometimes the demarcation fee is collected at the time of finalisation of the mutation proceeding. The demarcation fees are collected @ of Rs.4/- per plot. Such fees are being collected since 1980. 11. The statement of the aforementioned prosecution witnesses assume much importance on the face of the allegation of the unusual nature of demand alleged to have been made by the accused. P.W.5 in his evidence has stated that <the appellant/accused R.I. demanded a bribe Page 10 of 16 of Rs.1,000/- to do the work stating it would take a lot of time for him. P.W.5, the decoy expressed inability to pay such amount. On 01.11.1991, the accused reduced the demand of bribe to Rs.600/-. Thereupon, P.W.5 agreed to pay Rs.250/- on the following day. The demand of Rs.1,000/- subsequently reduced to Rs.600/- and thereafter the agreement to pay Rs.250/- sounds improbable particularly in the light of the defence plea taken by the accused. It is admitted on record that the demarcation fees are required to be paid by the decoy @ of Rs.4/- per plot, which come to Rs.220/-. When the complainant paid Rs.250/-, the accused was supposed to return Rs.30/- and issue appropriate receipt towards receiving Rs.220/-. That perhaps the reason, after receiving the alleged tainted notes, the accused had kept the money on the table and preparing to issue the receipt. At that juncture, the raiding party trapped the appellant and prevented to complete the process of issuing the receipt. This aspect of the matter was not appropriately appreciated by the learned trial Court. The trial Court in paragraph-9 has only made a passing remark instead of dealing the defence plea Page 11 of 16 adequately and appreciated the same in the right prospective. Paragraph- 9 of the impugned judgment reads as under:- <9. But at the same time, it has been contended on behalf of the accused that the accused had received Rs.250/- not as bribe from the complainant but as demarcation fee amounting to Rs.220/- in respect of 55 plots of land applied for mutation @ Rs.4/- per plot, in support of which he has examined D.W.1 who was just going to issue receipt to the complainant for such payment, but he could not issue receipt as the Vigilance raiding party caught the accused and also prevented D.W.1 from issuing any receipt.= 12. In my considered view, the stand taken by the defence which has been proved on record by the appellant ought to have been taken into consideration particularly, since the hint of the defence plea is found from the evidence of the prosecution. 13. Mr. Mohanty, learned counsel for the appellant to substantiate his case has relied upon the judgment in the case of B. Jayaraj vrs. State of Andhra Pradesh reported in (2014) 13 SCC 55. He emphasized paragraphs-7 & 8 of the judgment, which reads as under:- <7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be Page 12 of 16 made to the decision in C.M. Sharma v. State of A.P.2 and C.M. Girish Babu v. CBI3. 8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as 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.= He has also relied upon another judgment of the Hon’ble Supreme Court in the case of C.M. Girish Babu vrs. CBI, Cochin, High Court of Kerala reported in (2009) 3 SCC 779. Paragraph-18 of the said judgment reads as under:- <18. In Suraj Mal v. State (Delhi Admn.)1 this Court took the view that (at SCC p.727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not Page 13 of 16 sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.= 14. Per contra, Mr. Rizvi, learned Additional Standing Counsel for the Vigilance Department has submitted that the prosecution could successfully prove its case beyond all reasonable doubt regarding the demand and acceptance. Therefore, there is no scope at the appellate stage to upset the finding recorded by the Court below. He has relied upon the judgment of the Hon’ble Supreme Court in the case of P. Sarangapani (Dead) Through Lr Paka Saroja vs. State of Andhra Pradesh, reported in AIR 2023 SC 4739. He emphasized on the paragraph-12 of the said judgment which reads as under:- <12. In the instant case the pre-trap and post-trap proceedings were duly proved by the prosecution by examining the concerned witnesses, who had duly supported the case of prosecution. Both the courts below have recorded the findings that the prosecution had proved beyond reasonable doubt the conscious acceptance of the tainted currency by the accused and also the recovery of tainted currency from the appellant. Therefore, the burden had shifted on the appellant to dispel the statutory presumption under Section 20 of the said Act, and prove that it was not accepted as a motive or reward for the performance of his public duty, which the appellant has failed to dispel. The explanation offered by the appellant did not tally with the statement of the complainant recorded under Section Page 14 of 16 164 of Cr.P.C. The High Court had also recorded that the defence taken by the appellant that the acceptance of tainted currency by him was towards the Audit fees of the Society was not proved by him in as much as there was nothing on record to show that the amount paid by the complainant Immadi Laxmaiah to the appellant was out of the funds of the Society.= On the strength of the above referred judgments, Mr. Rizvi, learned Additional Standing Counsel for the Vigilance Department submitted that no interference by this Court is called for as the findings recorded by the Court below is justified and apt on the face of record. 15. I have given a conscious attention to the submission made by both the counsel appearing for the respective parties. I have also carefully gone through the evidence led by the prosecution as well as the defence. I am unable to accept the submission made by Mr. Rizvi. The quality of evidence led by the prosecution to prove the fact of demand and acceptance has created a serious doubt in view of the specific defence evidence adduced by the appellant. The defence plea that the <so called= tainted money of Rs.250/- paid to the appellant was meant for the fee towards mutation, in my considered view, is established from the evidence of D.W.2, the Amin, who was present at the spot at the time of trap. His evidence stands corroborated with the evidence of P.W.5 and Page 15 of 16 the other P.Ws., those who were form part of the raid. It has eminently came on record that the money although was received by the appellant, but, he kept the money on the table and was waiting to issue receipt towards the payment of fee of the mutation, at that time, the raiding party apprehended him. The evidence to establish the said defence plea of the appellant sounds reasonable, trustworthy, therefore, creates a serious doubt on the prosecution version. 16. Regard being had to the aforementioned and the nature of evidence, this Court is of the considered view that the appellant is entitled to benefit of doubt. Hence, the impugned judgment and order passed by the learned trial Court is liable to be set aside. 17. Accordingly, the impugned judgment and order dated 11.07.1997 passed by the learned Special Judge (Vigilance), Sambalpur in T.R. Case No.26 of 1994 is set aside and the appellant is acquitted from all the charges. The bail bond furnished by the appellant stands discharged.
Decision
18. The CRA is accordingly disposed of. 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: 30-Oct-2024 17:36:10 Page 16 of 16 (S.S. Mishra) Judge