The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO.469 of 2006 (In the matter of application under Section 374(2) of the Criminal Procedure Code, 1973.). Dibakar Sethi …. Appellant -versus- State of Orissa …. Respondent For Appellant : Mr. R. Sahoo, Advocate For Respondent : Mr. M.S. Rizvi, ASC CORAM: JUSTICE G. SATAPATHY DATE OF HEARING :13.11.2023 DATE OF JUDGMENT:05.02.2024 G. Satapathy, J. 1. This appeal by the convict assails the judgment of conviction and order of sentence dated 27.10.2006 passed by the learned Special Judge (Vigilance), Berhampur, Ganjam in G.R. Case No.7 of 1995 (V) convicting the convict for offences U/Ss.7/ 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short the “Act”) and sentencing him to undergo Rigorous Imprisonment (RI) CRLA No.469 of 2006 Page 1 of 28 for six months with fine of Rs.1,000/- in default whereof, to undergo RI for three months more for offence U/S.7 of the Act and to undergo RI for one year with fine of Rs.2,000/- in default whereof, to undergo RI for six months more for offence U/S.13(1)(d) read with Section 13(2) of the Act with stipulation of the sentences to run concurrently. 2. Briefly stated, the convict-Dibakar Sethi was working as a Record Keeper in the Tahasil Office, Borigumma and on 14.03.1995, the complainant Anamu Amanatya of Sunarbeli Nuagaon had applied for the certified copy of Record of Right (ROR) of his brother-in-law, but the convict demanded bribe of Rs.50/- for supplying the same. Finding no way out, the complainant PW1- Anamu Amanatya approached the DSP, Vigilance, Jeypore with an FIR under Ext.1 and, accordingly, Berhampur Vigilance PS Case No.7 of 1995 was registered and the DSP, Vigilance PW9-Rama Kanta Sahu was asked to lay the trap. Accordingly, PW9 successfully laid the trap on 22.03.1995 by successfully requisitioning independent official witnesses and CRLA No.469 of 2006 Page 2 of 28 observing the formalities of the trap and the convict was caught red-handed while demanding and accepting bribe of Rs.50/- from PW1 and the tainted money was recovered from his official table. After transaction of the bribe, PW9 caught hold the convict and took his both hand washes in sodium carbonate solution and the tainted money recovered from the convict was tallied with the numbers noted earlier in the preparatory meeting and the same was seized. On successful completion of the detection, PW9 prepared a detection report in presence of all the witnesses and, thereafter, forwarded the convict to the Court after arresting him. 3. PW9 also continued with the investigation in the course of which he examined the witnesses, sent the hand washes of the convict collected in separate bottles duly labeled and sealed at the time of trap to Forensic Laboratory for chemical examination and he after obtaining sanction order against the convict, submitted charge-sheet against him for commission of offences U/Ss.7/13(1)(d) read with Section 13(2) of the CRLA No.469 of 2006 Page 3 of 28 Act resulting in the trial in the present case when the convict denied to the charge for aforesaid offences. 4. In order to substantiate the charge, the prosecution examined 9 witnesses such as PWs.1 to 9, proved certain documents under Ext.1 to 13 as well as identified material objects under MOI to V in evidence as against the oral evidence of two witnesses DWs.1 and 2 and documentary evidence under Exts.A and B by the defence. Of the witnesses examined by the prosecution, PW1-Anamu Amanatya is the complainant and PW2-Basanta Kumar Tripathy is the accompany witness, whereas PW3-Raj Kishore Padhy and PW7- Mohamad Abdul Jaleel are the two official witnesses to pre trap arrangement, PW4-Sashibhusan Panda is the Vigilance-ASI who demonstrated pre trap arrangement and PW5-Raghunath Das is another official witness who produced the official files of the convict before the Collector for sanction. PW6-Raghu Amanatya is the brother-in-law of PW1, whereas PW8-Surasen Jani is another official witness to the trap, who had tallied the CRLA No.469 of 2006 Page 4 of 28 GC notes soon after the trap and lastly, PW9-Rama Kanta Sahu is the Trap Laying Officer-IO. 5. The plea of the convict in the course of trial was denial simplicitor and false implication as well as complainant paying Rs.50/- voluntarily towards donation for Red Cross. 6. After appreciating the evidence on record upon hearing the parties, the learned trial Court by mainly relying upon the evidence of PWs. 1, 2 and 8 convicted the appellant and sentenced him to the punishment accordingly. 7. In assailing the impugned judgment of
Legal Reasoning
conviction, Mr. R. Sahoo, learned counsel for the appellant has submitted that the learned trial Court has not appreciated the evidence on record in proper perspective by erroneously discarding the plea of the convict, but the evidence clearly suggests for justification of plea of the convict. It is also submitted by him that the prosecution has not only failed to prove the demand and acceptance of bribe by the convict, but CRLA No.469 of 2006 Page 5 of 28 it has also failed to clarify as to why the decoy would be aggrieved because the real issue of allegation involved in this case was for supply of certified copy of ROR to PW6 who in his evidence had not at all supported the prosecution, rather it is his specific evidence that he had applied for a copy of Pata (ROR) and the convict gave the copy of such ROR as per his application, but when he was coming back, one Anamu Amanatya called him and told him to stay for some time. It is also advanced for the convict that the learned trial Court has failed to take note of the glaring contradictions available in the evidence of PWs.1 and 6 and, thereby, the very foundation of the case is on erroneous premises. It is further submitted that as per the FIR story, the certified copy of ROR was applied for on 14.03.1995 on which date the first demand was made, but as per the evidence, the actual application was made on 21.03.1995, and thus there was no scope for demand on 14.03.1995 and, therefore, the genesis of prosecution case is untrue. While summing up his argument, Mr. Sahoo learned counsel for the appellant CRLA No.469 of 2006 Page 6 of 28 has prayed to allow the appeal by setting aside the impugned judgment of conviction and order of sentence by acquitting the convict of the charge. On the other hand, Mr. M.S. Rizvi, learned ASC has, however, supported the impugned judgment of conviction and he inter-alia has submitted that not only the prosecution has established the proof of demand and acceptance of bribe by the convict, but in addition, the convict was found to be caught red handed, while accepting the bribe and thus, the acceptance of the bribe by the convict having been well established. It is further submitted that the plea of the convict being found corroborating the acceptance of bribe, which is further strengthened for the convict having failed to discharge the burden of statutory presumption U/S.20 of the Act, the findings of the learned trial Court convicting the convict for demanding and accepting the bribe and sentencing him to appropriate punishment require no interference. Accordingly, Mr. Rizvi has prayed to dismiss the appeal. CRLA No.469 of 2006 Page 7 of 28 8. After having carefully traversed the impugned judgment keeping in view the rival submissions and re-appreciation of evidence on record, it is indisputedly found that the currency notes were recovered from the possession of the convict as he had consistently taken the plea that he had received Rs.50/- towards Red Cross fund which is very much available in the detection report under Ext.2. The convict has also reiterated such plea in his statement U/S.313 of Cr.P.C. as well as also led evidence to that effect by examining two defence witnesses such as DWs. 1 & 2. Law is, however, well settled that mere recovery of tainted money from the convict divorced from the circumstance under which it was paid is not sufficient to constitute the offence U/Ss.7/13(1)(d) read with Section 13(2) of the Act, when the substantive evidence is not reliable. In the above context, it is profitable to refer to the decision in K. Santhamma vs. State of Telangana; AIR 2022 SC 1134, wherein the Hon’ble Apex Court has allowed the appeal by CRLA No.469 of 2006 Page 8 of 28 setting aside the judgment of conviction of the appellant therein by quoting the observation made by the Apex Court at paragraph-23 in P. Satyanarayana Murthy vs. District Inspector of Police, State of Andhra Pradesh and another; (2015) 10 SCC 152 with approval, which reads as under :- in and absence illegal “23.The proof of demand of gratification, thus, is the gravamen of the offence U/S. 7 and 13(1)(d)(i) and (ii) of thereof, the Act unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recover thereof, dehors the proof of demand, ipso facto, would thus not sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence Under Section 7 or 13 of the Act would not entail his conviction thereunder.” 9. In N. Sunkanna v. State of Andhra Pradesh; 2016 (I) OLR (SC) 8, it has been held by the Apex Court that:- “mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the CRLA No.469 of 2006 Page 9 of 28 offence under Section 7 of the Act, since demand of illegal gratification is sine-qua- non to constitute the said offence”. 10. In Khaleel Ahmed v. State of Karnataka; (2016) 63 OCR (SC) 150, the Apex Court has reiterated the aforesaid principle in Paragraph-24 as under: of the appellant demanded “In the instant case the prosecution has failed to discharge its burden to establish that illegal gratification beyond reasonable doubt. The testimony raises the considerable doubt the prosecution version, and two views of the matter are possible, and therefore the benefit of the doubt must go to the appellant. Accordingly, we hold that demand of illegal gratification by the appellant is not proved in the instant case”. complainant in 11. Moreover, very recently in Neeraj Dutta v. State (Government of NCT of Delhi); (2023) 4 SCC 731, a constitutional Bench of the Apex Court has recorded its conclusion in the context at Paragraph-88 of the decision which is extracted as under: 88. What emerges from the aforesaid discussion is summarized as under: 88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a CRLA No.469 of 2006 Page 10 of 28 fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act. 88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. 88.3.(c) Further, the fact in issue, namely the proof of demand and acceptance of illegal can also be proved by gratification circumstantial evidence in the absence of direct oral and documentary evidence. 88.4.(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: it (i) if there is an offer to pay by the bribe- giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe-giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior gratification demand emanates from the public servant. This is an offence under Sections 13(1)(d)(i) and (ii) of the Act. illegal for CRLA No.469 of 2006 Page 11 of 28 by the public (iii) In both cases of (i) and (ii) above, the offer by the bribe-giver and the servant demand respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 13(1)(d),(i) and (ii), the Act. respectively of Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe- giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe-giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d) and (i) and (ii) of the Act. 88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. 88.6. (f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during illegal gratification can be proved by letting in the trial, demand of CRLA No.469 of 2006 Page 12 of 28 evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. 88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act. 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature. 12. In the aforesaid situation, the recovery of currency notes is not sufficient to bring home the charge for the offences, but in order to sustain a conviction U/Ss.7/13(1)(d) read with Section 13(2) of the Act, the prosecution has to objectively prove the necessary ingredients of demand and acceptance of bribe by the accused. In this case, while adverting to the evidence of decoy PW1, it appears from the very CRLA No.469 of 2006 Page 13 of 28 inception that he had applied for a copy of ROR of his land, to the Record Keeper of Borigumma Tahasil(convict), but the consistent case of the prosecution is that the decoy had applied for the copy of ROR of the land belonging to PW6. It is further transpired from his evidence that the convict had demanded Rs.50/- from him for supplying the copy of ROR and he, accordingly, approached the Vigilance. On coming to the relevant part of the evidence of PW1, it further appears that he had not reiterated the demand of bribe by the convict in preparatory meeting to the witnesses, who are the members of raiding party. It appears from his evidence that he produced Rs.50/- in the shape of five Rs.10/- GC notes and all the five persons present in the preparatory meeting noted down the numbers of GC notes and the GC notes were kept in his pocket with instruction to hand over to the convict, but it was never stated by him in the evidence that he has to pay the bribe money to the convict on demand. It is further transpired from the evidence of PW1 that he and the accompanying witness went to the Tahasil CRLA No.469 of 2006 Page 14 of 28 office, but others stayed at a distance of 200 meters from Borigumma Tahasil office and it was 1.30 PM and the convict was present there. It is the specific evidence of PW1 that he enquired as to whether his ROR is ready, but the convict also enquired from him whether he has brought the money and he (decoy) told yes and the convict went for lunch and returned at 2 PM. It is also the evidence of PW1 that on his return, the convict asked for money and he paid the tainted money to him and he counted the money and kept it in his drawer and brought out the copy of ROR and, thereafter, the accompany witness gave the signal by combing his head as per the previous instruction. What is most important is that PW1 has admitted in cross examination that one Raghu Amanatya (PW6) actually had applied for a copy of ROR of his land and he had merely accompanied him while giving the application and the said Raghu Amanatya is the brother-in-law of his father-in-law. Yet another aspect of the evidence of PW1 is his own admission that on 22.03.1995 he had been to the Vigilance Officer and four days earlier to it, CRLA No.469 of 2006 Page 15 of 28 he had given an FIR to the Vigilance people and on 22.03.1995, he gave another written report to the Vigilance officials and the second report was also written by Umesh Chandra Dewan. 13. A cumulative analysis of aforesaid facts and evidence of PW1, it not only appears to this Court that the evidence of PW1 is not only being doubtful, but also not reliable in material aspect inasmuch as he had never applied for copy of the ROR for himself, rather he had applied for the copy of the ROR of PW6 as per the FIR, but in the evidence he had stated that he had applied ROR for himself and the convict had demanded bribe. On the other hand, it is his own admission that PW6 had applied for copy of the ROR in cross examination by signing the application and he had merely accompanied him by giving the application. In this situation, why an officer would ask for bribe to another person who has no work with him for doing anything nor was it the case that the said person had given impression to do the work by influencing the public servant. It is also not understood as to why PW1 CRLA No.469 of 2006 Page 16 of 28 had presented two FIRs and why the earlier FIR was suppressed, if at all it was given by PW1. What is more important is that PW1 in his cross examination has admitted that on 14.03.1995, he had been to the Tahasil Office to apply for the ROR, when Raghu (inadvertently mentioned as Raghu instead of the convict in the evidence of PW1) demanded the bribe amount from him, but Raghu was not present there. It, therefore, clearly appears that the evidence of PW1 with regard to demand of bribe by the convict on 14.03.1995 is not believable, especially when the FIR story reveals that the convict had demanded bribe two days after 14.03.1995. Therefore, on analysis of aforesaid evidence, this Court does not consider PW1 to be reliable witness. It is, however, settled law that the evidence of decoy has to satisfy the twin test of reliability and corroboration inasmuch as the complainant cannot be placed on any better footing than that of any accomplice because he is paying the bribe for doing an act. It is, however, not disputed that the evidence of accomplice is admissible in view of CRLA No.469 of 2006 Page 17 of 28 Section 133 of Indian Evidence Act and a conviction may lie only on the sole testimony of accomplice, but rule of prudence demands corroboration to the testimony of accomplice in view of Illustration-(b) of Section 114 of Evidence Act which provides that an accomplice is unworthy of credit, unless he is corroborated in material particulars. It is, therefore, clear that if the testimony of decoy is found to be reliable, then also it is required to be sufficiently corroborated. 14. Adverting to the evidence of other material witness, who in this case is PW2-Basanta Kumar Tripathy who being the accompany witness is supposed to overhear the conversation between the convict and decoy and to see the transaction of bribe between them at the relevant time. However, PW2 in his evidence has stated that the Vigilance Officer explained to them that one staff of Tahasil office was demanding bribe of Rs.50/- from the complainant, which does not satisfy the proof of initial demand, since it being hearsay in nature and normally the complainant has to narrate his CRLA No.469 of 2006 Page 18 of 28 grievance before the members of raiding party before proceeding to trap the convict. PW2 has then stated that the complainant produced Rs.50/- consisting of five Rs.10/- GC notes to the Vigilance Officer and then, the inspector of their office and the engineer witness noted down the numbers of the notes on a separate paper and put their initials on the said notes as per the instruction of the Vigilance Officer. It is the further evidence of PW2 that the tainted notes were given to the complainant with instruction to keep it in his pocket and hand over the same to the convict when demanded by the convict and he was given instruction to accompany the complainant to watch the transaction and acceptance of bribe amount from the complainant by the convict-accused on his demand. The evidence of PW2 on specific point of trap is that the complainant and the witness who came with him, went to the office of convict, and others remained at a short distance from the Tahasil office and it was 1.30 PM and the convict was going away from the office to take his lunch and the complainant met him and enquired about CRLA No.469 of 2006 Page 19 of 28 his ROR and the convict told him to give the ROR after his return from home. The specific evidence of PW2 with regard to the trap at the relevant time is that at about 2.30 PM, the convict returned to office and he remained on the verandah of the office and the complainant and “another witness” went inside the office of the convict and the convict gave the ROR to the complainant and after receipt of ROR, the complainant gave the money and then he(PW2) gave the signal and the Vigilance staff rushed to the spot. The aforesaid evidence of PW2 does not reveal conspicuously any demand made by the convict for bribe just before the payment of bribe of Rs.50/- to him, rather PW2 introduced one new “theory” that another person who had come with the complainant had been to the office which was not the prosecution case and, therefore, it can be surely said that the prosecution has also withhold some material facts in this case because not only PW2 has stated about presence of another witness with the complainant, but also the evidence of PW4 discloses the presence of CRLA No.469 of 2006 Page 20 of 28 PW6-Raghunath Amanatya in the raiding party. Above being the evidence of important witnesses, this Court now embarks upon the evidence other witnesses, like PW6-Raghu Amanatya who has not supported the prosecution case, but it appears from the prosecution case that the convict had asked bribe of Rs.50/- from PW6 who had also admitted in cross examination that no witness noted down the seized notes number in his presence. The seizure notes were not tested in any solution in his presence. It is, therefore, very clear that the prosecution has not been able to prove the demand of bribe by the convict from the decoy beyond all reasonable doubt through admissible evidence. 15. Yet, another point is that the learned trial Court has raised presumption U/S.20 of the Act against the convict, but law is clearly well settled that to draw presumption U/S.20 of the Act, the prosecution has to establish that the convict has not only demanded, but also accepted the bribe from the complainant-decoy. Even otherwise, if the acceptance has not been established, the presumption cannot be raised U/S.20 CRLA No.469 of 2006 Page 21 of 28 of the Act. It is no more res-integra that the initial burden of establishing the demand and acceptance of bribe by the accused from the complainant is required to be established before raising presumption U/S.20 of the Act and the prosecution is not relieved of such duty. In other words, it is only when the initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, the burden of discharging such presumption shifts upon the defence to explain the money accepted by the convict is not the bribe or is not accepted as illegal gratification towards motive or reward, since the proof of demand of illegal gratification is the foundation of offence U/S.7 of the Act. It is also not in dispute that mere receipt or recovery of the amount by the accused from the complainant without anything more is not sufficient to fasten the guilt upon him in absence of any evidence of demand and acceptance of bribe as a illegal gratification. Further, the statutory presumption raised U/S.20 of the Act can be discharged by the defence in bringing evidence in support of him by examining CRLA No.469 of 2006 Page 22 of 28 defence witnesses or by eliciting evidence from the mouth of prosecution witness in their cross examination. In this case, there is absolutely no dispute with regard to recovery of some tainted GC notes from the convict, but the specific plea of the convict is that he had received such amount towards Red Cross fund which is also very clear from the detection report under Ext.2 which must have been prepared at the spot immediate after detection of the case. Further, the detection report also discloses not only about such plea of the convict, but also seizure of Red Cross receipt book bearing No.3504762350500 with last receipt issued in favour of Mr. R.N. Nayak for Rs.10/- on 15.02.1995 and signed by the convict, but the learned trial Court has whimsically and arbitrarily refused to consider the plea of the convict as found from the judgment. The evidence of PW2, the overhearing witness in cross examination also discloses that the complainant gave money by inserting the same in the chest pocket of the shirt of the convict and by doing so, he informed him by nodding his(PW1) head and after CRLA No.469 of 2006 Page 23 of 28 which, he gave prearrange signal. Further, the decoy has also admitted in cross examination that he does not know, if the convict was in-charge of collection of Red Cross donation. Similarly, PW8 has also stated in cross examination that on being asked, the convict told him that the complainant paid some money towards donation to Red Cross society and the Vigilance Inspector also seized the Red Cross receipt book and the convict also told the Vigilance Inspector that before drawing the receipt towards payment of Red Cross donation, he(Vigilance Inspector) caught hold of his(convict) hand. However, PW9, the IO-cum-TLO has denied to the suggestion of defence that the convict had taken the plea that when he was going to grant a token of receipt of money on behalf of Red Cross, he was caught hold off by the vigilance staff, but it is quite palpable from the detection report that the convict had taken the plea that he was receiving the donation from the complainant. 16. From analysis of above evidence, it goes to show that the convict from the very beginning had CRLA No.469 of 2006 Page 24 of 28 taken the plea of receiving the money towards Red Cross which he had reiterated in his statement U/S.313 of Cr.P.C. as also brought out from the evidence of PW8. When the aforesaid evidence is considered on the face of the evidence stated by PW9 in cross examination that he has not directed investigation to ascertain, if the convict had been authorized by Red Cross Authorities to collect donation, it only goes to show that the convict has established his plea on the touchstone of preponderance of probabilities. On coming to the impugned judgment, it transpires that according to the learned trial Court, PWs.4 and 7 to 9, the other official witnesses and officers of Vigilance Department have categorically stated in their evidence that the convict had demanded bribe of Rs.50/- from the decoy for supplying the certified copy of ROR, but such observation of the learned trial Court appears to be in contrary to the evidence led by the prosecution since PW4 has stated that the complainant and his brother-in-law Raghunath Amanatya disclosed before the official witnesses that the Record Keeper of CRLA No.469 of 2006 Page 25 of 28 Borigumma Tahasil was demanding Rs.50/- as bribe, whereas PW7 says that the complainant told before him and others that someone whose name he does not know ask him to pay bribe of Rs.50/-. When the aforesaid evidence is compared and analyzed with the evidence of PW2-overhearing witness, it unambiguously appears that PW2 has not at all said about the initial demand disclosed by the complainant before him in the preparatory meeting before proceeding to trap the convict and his admission in cross examination that the complainant inserted the money in the pocket of the convict itself negates the demand of bribe by the convict. Further, the evidence of PW9 also reveals that the official witnesses compared the numbers, but he being the TLO-IO was supposed to reveal as to who was the official witness who had compared the numbers recovered from the convict. In the aforesaid situation and analysis of evidence on record, it can be safely said that the convict even otherwise has successfully discharged the presumption as raised U/S.20 of the Act against him. In the sequence of events and taking into CRLA No.469 of 2006 Page 26 of 28 consideration the totality of evidence on record, this Court also finds that the evidence led by the prosecution was not reliable or of such character to act upon such evidence, but on the other hand, when the evidence on record is considered, only proof of recovery of some tainted GC notes is found, which in the circumstance is not sufficient to prove the charge against the convict in view of the dictum of Apex Court in Suraj Mal vs. The State (Delhi Administration); (1979) 4 SCC 725, wherein it has been held that mere recovery by itself cannot prove the charge of the prosecution against the appellant, in absence of any evidence to prove payment of bribe or to show that appellant voluntarily accepted the money. 17. On a conspectus of evidence on record and discussion made hereinabove, this Court has no hesitation to hold that the prosecution was unable to lead clear, cogent and acceptable evidence to establish the charge against the convict beyond all reasonable doubt for demanding and accepting bribe, so as to make him liable for offence U/Ss.7/13(1)(d) read with CRLA No.469 of 2006 Page 27 of 28 Section 13(2) of the Act and, therefore, the conviction of the convict being unsustainable in the eye of law, the convict is entitled to a clean acquittal. 18.
Decision
In the result, the appeal stands allowed on contest, but no order as to cost. Consequently, the judgment of conviction and order of sentence dated 27.10.2006 passed by the learned Special Judge (Vigilance), Berhampur, Ganjam in G.R. Case No.7 of 1995 (V) are hereby set aside. The convict is accordingly acquitted of the charge. 19. Since the convict is on bail upon appeal, he is discharged of his bail bonds. (G. Satapathy) Judge Signature Not Verified Digitally Signed Signed by: SUBHASMITA DAS Designation: Sr. Stenographer Reason: Authentication Location: High Court of Orissa Date: 06-Feb-2024 14:57:25 Orissa High Court, Cuttack, Dated the 5th day of February, 2024/Subhasmita CRLA No.469 of 2006 Page 28 of 28