The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRA No.235 of 1998 (From the judgment dated 31st August, 1998 passed by learned Special Judge, Bhubaneswar in T.R. Case No.8 of 1993) Birendra Nath Datta …. Appellant -versus- Republic of India …. Respondent Advocate(s) appeared in this case:- For Appellant : Mr. G. Tripathy, Advocate For Respondent : Mr. Sarthak Nayak, Advocate for C.B.I. CORAM: JUSTICE B.P. ROUTRAY JUDGMENT 26th June, 2023 B.P. Routray, J. 1. The Appellant has been convicted and sentenced under Sections 7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 to undergo rigorous imprisonment for six months and one year Page 1 of 10
Legal Reasoning
Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jul-2023 10:21:32 CRA No.235 of 1998 respectively along with fine of Rs.500/- and Rs.1000/-. The impugned judgment of conviction and sentence dated 31.08.1998 passed by learned Special Judge, C.B.I., Bhubaneswar in T.R. Case No.8 of 1993 is appealed against by the Appellant. 2. The accused-Appellant was serving as Inspector of Railway Protection Force at Mancheswar Carriage Repair Workshop on 9th October 1991. A trap was laid by a team of C.B.I. headed by P.W.7, the Inspector of C.B.I. namely G.B. Pati, in the afternoon of 9th October 1991 on the allegation of the complainant-Bhimsen Sahoo (P.W.3) that the Appellant demanding Rs.200/- for lifting scrap materials from the workshop premises. As per prosecution allegation, the Appellant received tainted money of Rs.200/- consisting of three G.C. notes of denomination fifty, two G.C. notes of denomination twenty and one G.C. note of denomination ten, seized under M.O.III series, from the complainant on demand at his official residence at Mancheswar Railway Colony and the money was recovered from the backside pant pocket (M.O.IV) of the Appellant. His hands were washed in sodium carbonate solution and the same turned pink. The trap memorandum under Ext.6 was prepared at the spot, the Appellant Page 2 of 10 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jul-2023 10:21:32 CRA No.235 of 1998 was arrested and investigation started followed by submission of charge-sheet along-with sanction order for prosecution. The FIR was registered on the basis of written complain dated 9th October 1991 lodged by P.W.3 and the charge-sheet was submitted on 30th November 1991. 3. The Appellant denied the charges and stated in his defence that the complainant along with P.W.1–an independent witness to the demand and in connivance with the Sub-Inspector and A.S.I. of same Mancheswar R.P.F. Post, who were reverted to the lower rank on 6th October, have successfully planted the false case against him. According to defence story narrated by the Appellant in his statement under Section 313 of the Cr.P.C. he did not wear his pant (M.O.IV) at the time of trap and had worn a lungi at that time. But the C.B.I. team along with the complainant entered into his house forcibly and kept the alleged tainted money in his pant pocket hanged on the wall to make out the case. 4. The learned trial court framed five questions which can be summed up to the effect that, whether the Appellant received Rs.200/- Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jul-2023 10:21:32 CRA No.235 of 1998 Page 3 of 10 from the complainant at his official residence on the given date and time, on demand? 5. Prosecution examined seven witnesses in order to prove the charges and exhibited several documents marked from Ext.1 to Ext.18. P.W.1 is an independent witness to the demand (prior to trap), P.W.7 is the Investigating Officer who laid the trap, P.W.4 is the overhearing witness and P.W.6 is the sanctioning authority. Ext.7 is the written complaint, Ext.2 is the trap memorandum, Ext.6 is the trap memo, Ext.11 is the chemical report of sample bottles collected from the hand- wash solution of the Appellant and Ext.15 is the sanction order. 6. The Appellant examined five witnesses in his defence and marked several documents under Ext.A to E. 7. Demand and acceptance are two vital ingredients in such trap cases to attract the offence under Section 7 read with 13(1)(d) of the P.C. Act. In the case at hand, P.W.1–an independent witness has stated about prior demand made by the Appellant to receive the gratification from P.W.3, the complainant. It is stated by P.W.1 that he was indulged in illegal scrap iron lifting from the workshop premises by Page 4 of 10 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jul-2023 10:21:32 CRA No.235 of 1998 payment of gratification to the Appellant who is the In-charge Inspector. He, on the request of P.W.3, advised him to approach the Appellant for lifting iron scraps from the workshop premises. Accordingly, P.W.3 approached the Appellant on 8th October 1991, who demanded Rs.200/- to permit him to lift iron scraps from the premises. Thus, the prior demand of gratification by the Appellant is supported by the evidence of P.W.1. The F.I.R. under Ext.7 was lodged and registered in the morning at 11:00 AM on 9th October 1991 and such demand of the Appellant has been clearly reflected in the contents of the F.I.R. 8. P.W.3, the complainant has stated that he went to the official residence of the Appellant at Qrs. No.IV-K/16/2 at Mancheswar Railway Colony on the instruction of the Appellant. He went there on 9th October 1991 along with P.W.4, the overhearing witness and being asked, said P.W.4 was introduced by the Appellant as his relation. The Appellant asked him as to whether he had brought the money and P.W.3 being replied in affirmative the Appellant asked him to pay the same. Accordingly, P.W.3 gave Rs.200/- to the Appellant, who received the same, counted by both hands and kept those currency Page 5 of 10 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jul-2023 10:21:32 CRA No.235 of 1998 notes in the backside pocket of his wearing pant. The tainted currency notes were seized under M.O.III series and the pant is M.O.IV. But here a discrepancy arises in the evidence of P.W.3 & 4 as to whether the Appellant was wearing a Lungi or pant at that time. According to P.W.4, the pant was kept hanging on the wall and the Appellant was wearing a lungi, whereas according to P.W.3 the Appellant was wearing the same pant and kept the currency notes in the backside pocket. Nonetheless, such discrepancy in the evidence of P.W.3 & 4 is immaterial since recovery and seizure of currency notes under M.O.III series and the pant under M.O.IV has been duly established by prosecution evidence. It needs to be mentioned here that sodium carbonate hand wash solution as well as pocket wash solution were turned pink and the chemical examiner (P.W.5) has given his report under Ext.11 that each of the solutions compared with the sample solution kept in the bottles under M.O.-V, VI & VII gave positive tests for sodium carbonate and phenolphthalein powder. Here it is relevant to refer the defence story explained by the Appellant as D.W.5 as well as in his statement recorded under Section 313 Cr.P.C. He though does not dispute seizure of the currency notes under M.O.III series from his Page 6 of 10 Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jul-2023 10:21:32 CRA No.235 of 1998 pant pocket under M.O.IV and turning of his hand wash as well as pocket wash solution into pink colour, but explains that the currency notes were kept in his pant pocket which was hanged on the wall without his knowledge. This story narrated by the Appellant is hard to believe. It is for the reason that the pant was hanged, according to defence, on the mosquito net on the wall of the living-cum-bedroom at the official Quarters of the Appellant and as per D.W.4, the front door neighbour of the Appellant, he saw one young man (P.W.3), on the verandah of official Quarters of the Appellant at around 2:30 PM on 9th October 1991 and he did not say presence of other witnesses then. If the evidence of D.W.4 would be analyzed, then no scope would be left for anyone to enter into the room inside the house to keep the currency notes in the pant pocket of the Appellant without his knowledge. Further no previous enemity between the appellant and other witness were there and the defence did not suggest any enmity with P.W.3 to do all such activities against him. It is also hard to disbelieve the official witnesses like P.W.7 and his team members without reason. What is stated by the Appellant that he had enmity his subordinate Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jul-2023 10:21:32 CRA No.235 of 1998 Page 7 of 10 officers, i.e. Sub-Inspector and Assistant Sub-Inspector, the same does not establish any link with P.W.3 to make such attempt. 9. P.W.2 & 4 are the overhearing witnesses of the transactions. When P.W.4 was present along with the complainant (P.W.3), P.W.2 was standing near the front window of that Quarters of the Appellant avoiding vision of the Appellant. P.W.7 was also present near the window, who entered into the quarters along with other members of the trap party and caught hold of the Appellant to recover and seize the tainted currency notes from the backside pant pocket. 10. Ext.2 is the pre-trap memorandum and Ext.6 is the trap memorandum prepared at the spot immediately after the trap. The seizure list of the tainted currency notes is Ext.3. On a cumulative perusal of the evidences of P.W.2, 3, 4 & 7 along with Ext.2 & 6, it becomes crystal clear that the Appellant received Rs.200/- towards gratification from P.W.3. The seizure of tainted currency notes which matched with the numbers mentioned in the pre-trap memorandum and presence of phenolphthalein powder in the sodium carbonate solution collected from the hand wash and pocket wash, have been proved Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jul-2023 10:21:32 CRA No.235 of 1998 Page 8 of 10 beyond all reasonable doubts to suggest that the Appellant received Rs.200/- from the complainant (P.W.3) at his official Quarters on 9th October 1991. Section 20(1) of the P.C. Act, 1988 adds the presumption of motive or reward on the part of the Appellant towards acceptance of the money for illegal gratification. When it is established by prosecution evidence that the Appellant accepted the tainted money, then presumption in terms of section 20(1) is attracted against him to establish the guilt under Section 7 and 13(1)(d) of the P.C.Act. The Appellant has no explanation to offer to rebut such statutory presumption drawn against him. 11. The sanction order for prosecution under Ext.15 has been produced and proved by prosecution through P.W.6, who was the then Security Commissioner of South Eastern Railways, Calcutta. He is also the appointing as well as disciplinary authority of the Appellant. No doubt is raised in this regard and the sanction order itself speaks justification for the same. As seen from the evidence of P.W.6 and the sanction order under Ext.15, it is quite satisfactory that the sanction authority has applied his mind and relied on the exhaustive report of Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jul-2023 10:21:32 CRA No.235 of 1998 the S.P. (CBI) before granting sanction for prosecution. Page 9 of 10 12. No infirmity is also seen in the quantum of sentence which is the minimum sentence prescribed for the offences under Section 7 and 13(1)(d) of the P.C.Act. 13.
Decision
In view of the discussions made above, the appeal is dismissed and the conviction and sentence of the trial court is confirmed. The Appellant is directed to surrender immediately before the trial court, failing which the trial court shall take appropriate steps in accordance with law. (B.P.Routray) Judge C.R. Biswal/Secy. C.R.B iswal Signature Not Verified Digitally Signed Signed by: CHITTA RANJAN BISWAL Designation: Secretary Reason: Authentication Location: Orissa High Court, Cuttack Date: 05-Jul-2023 10:21:32 CRA No.235 of 1998 Page 10 of 10