The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRA No.387 of 1993 (In the matter of an application under Section 374(2) of the Criminal Procedure Code, 1973) Dayalal Bag ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. Devashis Panda, Advocate For the Respondent : Mr. M.S. Rizvi, Addl. Standing Counsel (Vigilance) CORAM:
Legal Reasoning
sanction to prosecute the appellant as there was prima facie case. Again he went on to say that on 12.09.1989, the file relating to sanction was put up before him. The sanction has been accorded on 25.10.1989 (Ext.7). Therefore, it is apparent from record that the sanction granted by P.W.3 to prosecute the appellant is a culmination of complete non-application of mind, because relevant papers were not placed before the sanctioning authority, when he stated to have arrived at the subjective to accord sanction. 8. In that view of the matter, this Court is not in agreement with the findings recorded by the learned trial Court. Hence, the case against the present appellant under Section 5(1)(d) read with Section 5(2) of the P.C. Page 10 of 11 Act and Section 161 of the I.P.C. is not proved beyond all reasonable doubt and therefore, the appellant is liable to be acquitted of the aforementioned charges. Accordingly, the judgment of conviction and order of sentence dated 09.12.1993 passed by the learned Special Judge (Vigilance), Sambalpur in T.R. Case No.6 of 1990 is quashed. The appellant is set free from all the charges. The bail bond stands discharged. 9. With the above observation, the Criminal Appeal stands disposed of. The High Court of Orissa, Cuttack Dated the 29th October, 2024/Swarna (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Reason: Authentication Location: High Court of Orissa Date: 07-Jan-2025 11:38:55 Page 11 of 11
Arguments
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 25.06.2024 : Date of Judgment: 29.10.2024 S.S. Mishra, J. The present Criminal Appeal, filed by the appellant under Section 374(2) of the Cr.P.C., is directed against the judgment dated 09.12.1993 passed by the learned Special Judge (Vigilance), Sambalpur in T.R. Case No.06 of 1990, whereby the learned trial Court has convicted the accused-appellant for the commission of the offences under Section 5(2) of the Prevention of Corruption Act, 1947 and Section 161 of the I.P.C. and sentenced the accused-appellant to undergo R.I. for a period of one year on each count and directed the sentences to run concurrently. 2. The accused-appellant is aggrieved by the judgment of conviction and order of sentence passed by the learned trial court, hence, the present Criminal Appeal. 3. Heard Mr. Devashis Panda, learned counsel appeared for the appellant and Mr. M.S. Rizvi, learned Additional Standing Counsel appeared for the State-Vigilance. 4. The prosecution case, in brief, is that the complainant, Ramsai Banchhor, prepared the pension papers of his father, who served as a Sweeper in Burla Medical College, Burla and retired from his post six years back due to continuous illness, and finalized the pension papers at Bhubaneswar in the Office of the Accountant General, Orissa and Director of Treasuries. The accused-appellant, who served as a Senior Clerk at Sub-Treasury, Burla, agreed to finalize the retirement accounts of the complainant’s father subject to payment of 10% of the total Page 2 of 11 amount which came to be around Rs.1,400/-. Upon the complainant’s plea of inability to pay such a hefty amount, the accused-appellant agreed to a reduced amount to Rs.900/- to be paid after the withdrawal of the pension amount. Aggrieved by such demand, the complainant reported the demand of bribe by the accused-appellant to the S.P. (Vigilance) at Sambalpur, who in turn arranged to set up a trap against the accused on 28.06.1988. The accused-appellant was caught red- handed while accepting the bribe money from the complainant upon his demand. Accordingly, the accused was charged and put to trial. 5. The prosecution, in order to substantiate the charges, examined as many as 5 witnesses and exhibited 14 documents, whereas the defence presented a stance of complete denial and false implication. The accused in his defence examined 2 witnesses, i.e., D.W.1 and D.W.2. Out of the 5 witnesses presented by the prosecution, P.W.1 was the complainant himself; P.W.2, a friend of the complainant was also a member of the trap party, who gave signal to the Raiding party members; P.W.3 was the Director of Treasuries, Orissa at Bhubaneswar, who accorded the sanction to prosecute the accused; P.W.4 was the Executive Magistrate; Page 3 of 11 and P.W.5 was the Vigilance Inspector who headed the Raiding party during the trap set up to entrap the accused, while accepting the bribe. 6. The learned trial Court, after analyzing the entire evidence on record, came to the conclusion that the claim of the accused-appellant, that the amount of Rs.900/- was a loan taken by him from the complainant, is false, and that the prosecution was successful in proving its case beyond all reasonable doubt, and thus convicted the accused on all the charges and sentenced him to undergo R.I. for one year on each count without giving him the benefit of the P.O. Act after recording its finding in relevant part of paragraph-5 of its judgement, which reads as under: To ask for a loan from a retired Government servant ailing is <5. also derogatory to official conduct rules so far as the accused as a Senior Clerk in the office of Subtreasury Burla is concerned. Amongst all the persons in the world he did not arrange a loan but from this old man whose pension papers were on his table for clearance, he made request for the loan. There is no doubt some discrepancy and contradictions in the evidence of P.ws.1 and 2 who are friends. In the F.I.R. P.W.1 has stated that the accused had threatened him to retain back the pension book of his father unless he would pay him Rs.900/-. If this were so, how could he get the pension book and other papers concerning the pension dues of his father and got the amount disbursed from the Bank if the pension book were with the accused. So that aspect of the case is of little doubt. The fair conclusion would be the accused had given the pension book and other papers concerning the pension dues of his father, his father came to the Subtreasury Page 4 of 11 office and to the Bank in ailing condition and the amount was disbursed to him. P.W.2 being a friend of complainant was throughout with him concerned in this case right from the time of settlement of the bargain at Rs.900/- and during the time of when the trap was laid against the accused. So the initial demand made by the accused has received corroboration from the P.w.2, no matter whether he was friend of the complainant or not. The complainant being a poor rickshaw puller was not aspected to take an important person of the locality to make a statement of the bargain with the accused and lastly to witness demand of bribe by him to the former. The admission of the accused on the question of receipt of money by him and recovery of the money during the raid from his possession have absolved the prosecution of the rigorous responsibility to procure an independent and important witness to be connected with the transaction. The principle laid in the decision reported in 1990 crl. Law Journal, 611 Supreme Court Tej Bahadur Singh, appellant -v- State of U.P., respondent have no direct application in this case because in that case the Hon'ble Court did not accept the prosecution version because of some grave doubt creeping in their minds as there were two rooms adjacent to each other, a curtain hung in between the demand of bribe and payment was made in one room and in the other room there were the raiding party members. Such a situation is not here in this case. That case was against the conduct of a rational human being. The other case cited by the defence was 1993 Criminal Law Journal, 1303 S. Narayan Pillai, appellant -v- State of Tamil Nadu, respondent. In this case the accompanying witness was a friend of the decoy and the Vigilance police Inspector was known to the complainant earlier. The evidence of the complainant was faltering on important points and it was a little irresponsible in nature. There was defect of sanction in that case. Therefore in my humble view these principles cannot be applied in the case before me. The defence witness is not to be believed because he could not give the exact date when he took the accused to the father of complainant for a loan of Rs.1,000/-. He is a person having deposed in another Police case. He could not recollect the date when had been to Nandaram Banchhor, the father of complainant to procure a loan for the accused. His statement that the accused had reported acceptance of the loan from Nandaram Banchhor 25 to 30 days after he and this witness visited the house of Nandaram Banchhor. The incident took place on 28.6.88. He has stated in his chief examination that during the 3rd week of June, 1988, the accused requested him for a loan. So if this period i.e. 3rd week of Page 5 of 11 June, 1988 is taken for consideration when both the accused and this witness had gone to the house of Nandaram Banchhor for the loan and the trap was laid on 28.6.88, his further statement that 25 to 30 days after they had gone to the house of Nandaram Bachhor i.e. during the 3rd week of June, 1988 it becomes gravely doubtful. One month after 3rd week of June, 1988 would have been 28th or 30 July, 1988. But the trap was laid on 28.6.88 the day of payment of bribe by the complainant to the accused. The evidence of D.W.2 is that he had taken all the pension papers of father of complainant to the Bank where the money was encashed. He did not give definite evidence that the accused had no talk with the complainant on anything whatsoever. He was also absent from office during the raid. The entire case of the prosecution hinges upon the evidence of P.W.1, therefore, I proceed to analyse his testimony. P.W.1 has stated in his cross-examination that the amount of Rs.900/- which he produced before the raiding party to pay as bribe to the accused at the time of the trap was brought by him out of the amount which he had withdrawn from the pension account of his father. This part of his evidence directly runs contrary to the prosecution story. The statement of P.W.1 found inconsistent because he has stated that the accused demanded the bribe from him towards the calculation of the total amount of pension payable to his father. However, in the same breathe, he stated that the amount had already been calculated. Relevant part of the deposition of P.W.1 is hereby reproduced, which reads as under: Page 6 of 11 <I met the Sub-treasury Officer, Burla in connection with the payment of the pension and gratuity of my father. The copy of the paper which I received, therein the amount of pension and gratuity payable to my father was mentioned. It was also mentioned as to from which month my father was to receive pension but only the calculation of the money total amount payable up to that day was left since the same was done in the office of the Sub-treasury Burla. After I met the Sub-treasury Officer Burla, he directed the accused to make the calculation in respect of the pension and gratuity of my father. Accordingly, the accused made the necessary calculation and game me to understand that my father was to get Rs.14,585/-. The calculation regarding the pension and gratuity was made by the accused was made by the accused inside the office. *** The amount which I produced before the vigilance staff on the day of laying down the trap the same amount was paid out of the amount which we withdrew from the bank towards the pension and gratuity. I brought the connected pension papers pertaining to my father from the Treasury, obtained the signature of my father, got the token from the bank and then I withdrew the money myself.= *** *** *** It is established from the testimony of P.W.1 that on the date of trap, there was no work pending to be done by the appellant, for which bribe was alleged to have been demanded. The statement of P.W.1 is contradictory regarding the cause of demand of bribe. 7. I have perused the evidence on record and analyzed the impugned judgment on the strength of those evidence. In order to bring home the charge of Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, two of the following essential ingredients need to be proved on record: Page 7 of 11 (i) There must be a demand of bribe as an illegal gratification for a motive or reward to do or not to do something for the complainant; and (ii) There must be acceptance of the bribe by the accused. Therefore, the factum of demand of bribe must be proved without an iota of doubt. If the evidence of P.W.1 is to be believed, the factum of the demand of bribe is doubtful and in that regard, the evidence of P.W.1 lacks reliability. It is no more res integra that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in regard to the demand is not reliable. It is also settled position of law that demand of illegal gratification is sine qua non to constitute the offence and mere recovery of the tainted notes in a trap laid by the police cannot constitute an offence under Sections 5(1)(d)/5(2) of the P.C. Act unless it is proved beyond all reasonable doubt that the accused has voluntarily accepted the money knowing it to be a bribe money. This position of law has been succinctly laid down by the Hon’ble Supreme Court in catena of judgments. In the instant case, the prosecution is relying upon a poor Page 8 of 11 quality of evidence to bring home the charge of demand which itself is not sufficient to sustain the conviction. Even otherwise, the evidence of P.W.1 is shaky and inconsistent and it creates a shadow of doubt. In this context, the observation of the Hon’ble Supreme Court in the case of Krishnegowda & Ors. v. State of Karnataka by Arkalgud Police, reported in (2017) 13 SCC 98, is relevant to be relied upon which reads as under: <32. It is to be noted that all the eyewitnesses were relatives and the prosecution failed to adduce reliable evidence of independent witnesses for the incident which took place on a public road in the broad daylight. Although there is no absolute rule that the evidence of related witnesses has to be corroborated by the evidence of independent witnesses, it would be trite in law to have independent witnesses when the evidence of related eyewitnesses is found to be incredible and not trustworthy. The minor variations and contradictions in the evidence of the eyewitnesses will not tilt the benefit of doubt in favour of the accused but when the contradictions in the evidence of the prosecution witnesses proves to be fatal to the prosecution case then those contradictions go to the root of the matter and in such cases the accused gets the benefit of doubt. It is the duty of the Court to consider the trustworthiness of 33. evidence on record. As said by Bentham, "witnesses are the eyes and ears of justice". In the facts on hand, we feel that the evidence of these witnesses is filled with discrepancies, contradictions and improbable versions which draws us to the irresistible conclusion that the evidence of these witnesses cannot be a basis to convict the accused.= The testimony of P.W.4, who was a member of the raiding party in whose presence the appellant’s hand wash with phenolphthalein Page 9 of 11 powder and sodium carbonate solution was conducted by the raiding party members. The said witness P.W.4 failed to identify P.Ws.1 and 2, the crucial witnesses and were part of raiding party. P.W.4’s testimony completely destroys the prosecution story. P.W.3, the sanctioning authority in his evidence stated that on 02.08.1989, he held discussion with I.O. of the case (P.W.5) and perused the consolidated report of investigation, accordingly accorded the