The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA No. 293 of 2009 (Arising out of the Judgment of conviction dated 10th of July, 2009 passed by Shri Arun Kumar Mishra, Addl. Special Judge (Vigilance), Jeypore in G.R. Case No. 22 of 2006 (V)/T. R. No. 59 of 2007, for the offences under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988) ---------- Sudam Pattanaik Appellant Mr. Sushil K. Pattanaik, Advocate …. State of Orissa -versus- …. Respondent Mr. M. S. Rizvi, ASC (Vigilance) P R E S E N T: HONOURABLE SHRI JUSTICE CHITTARANJAN DASH Date of Judgment : 09.04.2024 Chittaranjan Dash, J. 1. The Appellant, namely Sudam Pattanaik faced the trial on the charges under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 (in short, herein after referred to “P.C. Act”) before the learned Special Judge (Vigilance), Jeypore for having demanded bribe of ₹3,000/- wherein, the learned court found him guilty in the offences charged as above, convicted and sentenced the Appellant to undergo rigorous imprisonment for one year for the offence CRLA No. 293 of 2009 Page 1 of 21 under section 7 of the P.C. Act and to pay a fine of ₹2,000/-, in default, to undergo R.I. for three months. Further, he was sentenced to undergo R.I. for two years for the offence under section 13(2) read with section 13(1)(d) of the P.C. Act and to pay a fine of ₹3,000/-, in default to undergo R.I. for six months and the sentences of imprisonment are to run concurrently. 2. The prosecution case in brief is that the Complainant Sarbeswar Tripathy was a male Health Worker of CHC Tentulikhunti who retired on 31.07.2006. Prior to his retirement, he had submitted all the relevant documents at Tentulikhunti CHC relating to drawal of provisional pension on 22.06.2006 and for regular pension on 11.07.2006. He met the clerk of the CHC, Sudam Patnaik (Appellant) who was dealing with the pension papers for a number of times during August month of 2006 and the said clerk took Rs. 300/- from him on the pretext of correspondences but did not send the Complainant’s pension papers to C.D.M.O. office. Thereafter, on 18.09.2006 when he reapproached the Appellant, he demanded bribe of Rs. 3000/- on the plea of expenses in the office of the C.D.MO. but when he expressed his inability to comply
Legal Reasoning
the demand by him Sri Patnaik told him that unless he pays the said amount nothing will be done and remained adamant in his demand of Rs. 3000/- and agreed to send the pension papers early and instructed him to come on Saturday i.e. 23.09.2006 to the C.H.C., Tentulikhunti with the demanded bribe money of Rs. 3,000/-. Finding no other alternative with the hope of getting pension early, the Complainant agreed and since it was against his will, he lodged a written report before the Superintendent of Police, Vigilance, Koraput Division, Jeypore vide Ext. 1 for necessary action basing upon which vigilance case was registered and as per direction by the Superintendent of Police, Vigilance, Jeypore, Sri B. K. CRLA No. 293 of 2009 Page 2 of 21 Nayak, Inspector of Vigilance commenced with the investigation by laying a trap. 3. In the course of investigation, a trap was laid. During the preparation of the trap, official witnesses Malay Kumar Satapathy (JE), Suresh Chandra Hota (VLW) and Srinibas Patnaik (VLW) were introduced with the Complainant. The Complainant produced ₹3,000/- in six numbers of G.C. Notes of 500 rupee-denomination to give to the concerned clerk Sudam Patnaik at the CHC. The denomination and serial numbers of GC Notes were noted separately and were processed with phenolphthalein powder. After demonstration, the use of the same and its reaction with sodium carbonate solution, the tainted GC notes were kept in a four-fold white paper inside the shirt pocket of the Complainant and was instructed to hand over the same to the Appellant on his demand. 4. The Complainant was thereby declared as a “Decoy.” Srinibas Patnaik (P.W.4) was appointed as an accompanying witness with the Complainant to overhear the conversation between the Complainant and clerk and to give signal by wiping his face by his handkerchief. The trap party members along with the Complainant left for the spot at 10:00AM and had parked their vehicles 150 yards away from the C.H.C. The decoy and accompanying witness entered inside the C.H.C. and went to the room of the clerk (the Appellant), where the Appellant enquired as to whether the decoy had brought the bribe money. When the decoy replied affirmatively, the Appellant came out of his office and enquired about the accompanying witness to whom the decoy disclosed to be his relative. Thereafter, the Appellant instructed the decoy to keep the money inside the right-side drawer of his iron table and accordingly, the decoy kept the bundle of G.C. notes in the drawer and waited for the CRLA No. 293 of 2009 Page 3 of 21 Appellant as he proceeded towards Tentulikhunti block. The Appellant returned after 15 minutes and immediately thereafter awaiting official witnesses along with Inspector and D.S.P. rushed to the office room of the clerk gave their identity. When the Appellant asked the Clerk to take out the bribe money from the table drawer and to give the same at CDMO office, Nabrangpur, the said clerk admitted that he received the bribe amount but he failed to explain as to why he asked the Complainant to take back the same. The fingers of the right hand of the Accused-Appellant clerk were put on the sodium carbonate solution which changed to pink colour and the same were collected and preserved and the Appellant was asked to dip his left hand inside the solution which changed faintly. The same was done with cotton rubbed inside the first drawer of the Appellant which also turned pink. All these samples were collected. The tainted money and other incriminating articles were seized along with other articles in the presence of raiding party members. The I.O. examined Complainant and other witnesses, arrested the Appellant, and sent all the collected samples to R.F.S.L., Berhampur. After obtaining the sanction order for launching prosecution against the Appellant, chargesheet was submitted. 5. The case of the defense is one of complete denial and false implication. Further case of the defense is that the evidence to the effect that the hand wash of the Appellant turned pink is a concocted story or has been hatched for the purpose of trap only. As there was no work pending with the Appellant for which he could have demanded the bribe from the Complainant to gain an illegal gratification. 6. To bring home the charge the Prosecution examined 7 witnesses in all. P.W.1, Sarbeswar Tripathy being the Complainant; P.W.2, Jadab CRLA No. 293 of 2009 Page 4 of 21 Chandra Nayak is the seizure witness; P.W.3 and P.W.6 are the official witnesses to the trap and its preparation, namely, Malay Kumar Satapathy and Balaram Majhi, respectively; P.W.4 is the accompanying/overhearing witness; P.W.5, Bijay Kumar Jena is the D.S.P of Vigilance Unit; and, P.W.7, Birendra Kumar Jena is the I.O. who submitted the chargesheet. 7. The learned trial court having believed the evidence of the prosecution witnesses and the corroborative circumstances paired with the legal principles concerned, found the prosecution to have proved its case beyond all reasonable doubt and held the Appellant guilty and convicted him awarding the sentence as described above. 8. The learned counsel for the Appellant while assailing the impugned judgment argued that the Prosecution has utterly failed to prove the basic essentialities of the provision establishing the demand and receipt of bribe. He submits that the fact established rather affirms that the pension papers being processed was already sent to the office of the C.D.M.O. on 20.09.2006 which was received on 21.09.2006, and no work was pending with the Appellant for making demand of bribe from the Complainant on 23.09.2006. He further submitted that in several contemporaneous rulings of the Courts and more particularly this Court in the matter of Sanatan Dash Vs. State of Odisha in CRLA No. 322 of 2023 have viewed that trial court should have considered the defence plea of Appellant on the ‘touchstone of preponderance of probability’ and this Appellant has been able to prove the same. In the net analysis, it is crystal clear that there was no demand by the Appellant and the conclusion is irresistible that the impugned order and judgment is not in consonance with law. He further submits that so far as the offence under CRLA No. 293 of 2009 Page 5 of 21 Section 7 is concerned, 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 bribe. In the premise, the prosecution evidence with regard to demand and acceptance of bribe for the amount of Rs.3000/- by the Appellant from the Complainant (P.W.1) for processing and sending the pension papers is evidently shaky in nature. Further, there is glaring contradictions on material particularly in respect of the seizure of the tainted notes. While it is stated by the witnesses that it was seized from the drawer, the I.O stated the same to have been seized while it was in possession of the Complainant. Consequently, the evidence laid is shredded with cloud as to if the Appellant had actually received the bribe money. It is also not clear from the evidence as to if the Appellant had the scope to touch the tainted money and, in such circumstance, the evidence to the effect that the hand wash of the Appellant turned pink is a concocted story or has been hatched for the purpose of trap only. On the contrary, evidently the defence plea has been established by preponderance of probability and there is absence of sufficient, cogent and reliable evidence on record to establish the guilt of the Appellant beyond all reasonable doubt and the impugned judgment suffers from perversity and deserves to be set aside. The learned counsel finally summed up his argument stating that a false case has been hatched against the Appellant to meet the target of case by the vigilance. 9. The learned counsel for the State on the other hand while supporting the impugned judgment to be akin to the evidence led by prosecution, submitted that in the present case though the statement of P.W.9 contradicts with the consistent statements of other witnesses yet CRLA No. 293 of 2009 Page 6 of 21 this cannot erode the evidence of other material witnesses i.e. P.W.1/ Decoy, P.W.3/ Official Witness and P.W.4/ Over Hearing. Conviction can be made after judicial scrutiny of circumstantial evidence and oral testimony of material witnesses such as Decoy, Over Hearing Witness and Official Witness as the Learned Trial Court has considered as well. Chemical wash of both hands of the Accused was all through positive. The very fact that the Accused was in possession of the tainted G.C. notes against an allegation that he demanded and received the amount is ‘res ipsa loquitor.’ It has been observed that the only condition for drawing legal presumption is that during trial, it should be proved that the Accused has accepted or agreed to accept gratification. The Appellant has miserably failed to rebut the presumption that the money recovered was received as legal remuneration and as such it can be presumed that the money received/obtained by the Appellant was for a motive or reward other than legal remuneration. The Appellant has taken a defense that there was no work pending with him on the date of Trap as he had already sent the pension papers to the C.D.M.O. office but this ipso facto does not exonerate the Appellant from criminal liability in view of Explanation (d) to Section 7 of the Act, 1988 and it is crystal clear that the defense taken by the Appellant fails to stand under close judicial scrutiny. He further submitted that demand is not required to be proved when there is voluntary or conscious acceptance of money. In the event of recovery, demand can be inferred when it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove any direct evidence, demand or motive. In the present case the Appellant has voluntarily and consciously has accepted the tainted money by directing the Decoy to place it in the CRLA No. 293 of 2009 Page 7 of 21 drawer of the Appellant. Hence, the impugned judgment suffers from no infirmity and requires no interference. 10. To appreciate the aforesaid submissions, the relevant provisions with respect to the charges are required to be referred to – Prevention of Corruption Act 1988 7. Offence relating to public servant being bribed.—Any public servant who,— (a) obtains or accepts or attempts to obtain from any person, an undue advantage, with the intention to perform or cause performance of public duty improperly or dishonestly or to forbear or cause forbearance to perform such duty either by himself or by another public servant; or (b) obtains or accepts or attempts to obtain, an undue advantage from any person as a reward for the improper or dishonest performance of a public duty or for forbearing to perform such duty either by himself or another public servant; or (c) performs or induces another public servant to perform improperly or dishonestly a public duty or to forbear performance of such duty in anticipation of or in consequence of accepting an undue advantage from any person, shall be punishable with imprisonment for a term which shall not be less than three years but which may extend to seven years and shall also be liable to fine. Explanation 1.—For the purpose of this section, the obtaining, accepting, or the attempting to obtain an undue advantage shall itself constitute an offence even if the performance of a public duty by public servant, is not or has not been improper. Explanation 2.—For the purpose of this section,— (i) the expressions “obtains” or “accepts” or “attempts to obtain” shall cover cases where a person being a public servant, obtains or “accepts” or attempts to obtain, any undue advantage for himself or for another person, by abusing his position as a public servant or by using his personal influence over another public servant; or by any other corrupt or illegal means; (ii) it shall be immaterial whether such person being a public servant obtains or accepts, or attempts to obtain the undue advantage directly or through a third party. 13. Criminal misconduct by a public servant.— CRLA No. 293 of 2009 Page 8 of 21 (1) A public servant is said to commit the offence of criminal misconduct,— (a) *** (b) *** (c) *** (d) If a public servant, by corrupt or illegal means or by otherwise abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. to have Explanation 1.—A person shall be presumed intentionally enriched himself illicitly if he or any person on his behalf, is in possession of or has, at any time during the period of his office, been in possession of pecuniary resources or property disproportionate to his known sources of income which the public servant cannot satisfactorily account for. Explanation 2.—The expression ‘‘known sources of income’’ means income received from any lawful sources.] (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than [four years] but which may extend to 3[ten years] and shall also be liable to fine. 11. In his sworn testimony, P.W.1/Complainant/Decoy has categorically stated that he retired as a multipurpose health worker in Tetulikhunti C.H.C. on 31.07.2006. Before retirement, he had applied for availing pension with the then dealing Assistant, the Appellant. He contacted the Appellant where he was asked to pay ₹3000/- for preparation of pension papers. On 18.09.2006, P.W.1 paid 300/- to the Appellant and later agreed to pay 3000/- as bribe for expediting his pension request. Since the bribe was against his will, he gave a written report before the D.S.P., Vigilance, Jeypore on dated 22.09.2006. The D.S.P. (P.W.5) instructed PW1 to come in the morning of 23.09.2006 at 6A.M. P.W.1 was then introduced to the team of vigilance officials, the Inspector of Vigilance, two Village Level Workers, and one J.E. As he produced the six 500 rupees G. C. Notes, demonstration of the reaction of some chemical powder with some chemical solution was shown to CRLA No. 293 of 2009 Page 9 of 21 him. The G.C. Notes were treated with the chemical powder and handwashes before and after touching the tainted notes were taken in chemical solutions and it turned red in colour. The J.E. noted down the numbers of the GC Notes in a chit of paper and the tainted notes were given to P.W.1. He and P.W.4, who was selected as the accompanying witness to see the transaction and to give signal to the trap party members. Both P.W.1 and 4 reached the C.H.C. of Tentulikhunti and went to meet the Appellant who was in his office. Upon seeing P.W.1, the Appellant asked him if he had brought the bribe money and as P.W.1 replied affirmatively, he instructed him to keep it in the drawer of his table. Thereafter, the Appellant closed the office room and locked it and went to take tea. As the Appellant returned, he took out some papers from the cable drawer and told P.W.1 that he was going to the Block Office. As the Appellant returned after 15 minutes, the vigilance inspector and the trap party members entered the room of the Appellant. To the query of the Vigilance Inspector, the Appellant admitted to have received the bribe money from the Complainant. At the instance of the Appellant, the D.S.P. (Vig.) brought out the money from the drawer of the table. The numbers on the recovered money were tallied with the numbers on chit paper and was seized accordingly. He further mentions that his application forms for pension along with connected documents were seized by the I.O. from the office of the Appellant. 12. P.W.3, the J.E., in his evidence, has stated that the vigilance inspector introduced the trap team with the Complainant and the trap procedure was explained to P.W.1. After the demonstration, the vigilance team left for C.H.C. and stopped half a kilometer away from the spot. The Complainant and accompanying witness were allowed to proceed to the office of the Appellant. Getting the pre-arranged signal, CRLA No. 293 of 2009 Page 10 of 21 he alongwith other trap party members rushed to the office of the Appellant. By the time of their arrival, the Appellant was in his seat. They gave their identity and challenged the Appellant to have demanded and accepted bribe money from the Complainant to which the Appellant admitted his guilt. Both handwashes of the Appellant were taken in chemical solution which had turned light pink in colour. The Complainant told the vigilance team that on the instruction of the Appellant, he had kept the bribe money in the table drawer, from where the Vigilance Inspector seized the same. The numbers on the seized money were tallied by P.W.3. The table drawer was rubbed with the piece of cotton and the said cotton was dipped in the chemical solution which also turned slight pink in colour. The same was seized as well. Along with the said samples, four-fold white paper, xerox copy of letter no. 4779 dated 12.06.2006 of Director of Health Services was also seized. 13. P.W.4, in his testimony, has corroborated with the evidence of P.W.1 in the same tone, tune and manner. 14. P.W.5 being the D.S.P, in his sworn testimony, reiterated the demonstration and the scenario in which the trap took place. He along with the Complainant, accompanying witness and other trap party members proceeded to Tentulikhunti by hired Bolero jeep, The vehicle was stopped at a distance of 150 yards from Tentulikhunti C.H.C. The Complainant and the accompanying witness were allowed to go to the office of the Accused by walking. P.W.1 and 4 returned to him and other trap party members and P.W.1 reported before him and others that the Appellant demanded the bribe money from him and directed him to keep the tainted bribe money inside the right-side drawer of his table and so CRLA No. 293 of 2009 Page 11 of 21 he did. The Appellant asked P.W.1, who P.W.4 was, to which he replied that he was his relative. After that, the Appellant took P.W.1 up to the gate and left him there and proceeded towards the Block Office by bicycle. After 15 minutes, the Appellant returned to his and getting the pre-arranged signal from the accompanying witness, P.W.5 with other trap party members rushed to the office of the Appellant and he challenged the Appellant to have demanded and accepted bribe from P.W.1, to which, the Appellant became mum and denied the allegation of bribery. To further query, P.W.4 stated that the Appellant sensing some foul play directed P.W.1 to remove the cash from his drawer and give the same in the office of C.D.M.O., so P.W.1 took the cash out from the drawer and the said bribe money was seized by P.W.5. Other evidence of handwashes in chemical solution samples, xerox copy of letter no. 4779, articles in the table drawer of the Appellant, and pension file of the Complainant was also seized by P.W.5. Subsequently, he handed over the charge of investigation of the case to P.W.7, Inspector of Vigilance under the direction of S. P. Vigilance. 15. To sustain the charge under sections 7/13(1)(d) read with Section 13(2) of the Act, the prosecution is obliged to establish the basic ingredients of demand and acceptance of bribe as an illegal gratification which is sine qua non to attract the offences. 16. From the above evidence, a clear distinction can be drawn about the story of seizure and the proof of ‘acceptance.’ According to P.W.1, when he and the overhearing witness entered into the room of the Appellant, he was found present in the office room and asked him (P.W.1) if he had brought the said bribe money and when he replied affirmatively, the Appellant instructed him to keep the bribe money in CRLA No. 293 of 2009 Page 12 of 21 the left side drawer of the table. Thereafter, the Appellant closed the office room, locked it and went to take tea. After returning, the Appellant took out some papers from the table drawer and went to the Block Office. After his return, the vigilance inspector and trap party members entered into the office of the Appellant. Both hand washes of the Appellant were taken in some chemical solutions which turned slight pink/rose colour. To the query of the vigilance inspector, the Appellant admitted his guilt of receiving the bribe money and upon his instance, the DSP brought out the tainted notes from the drawer of the table and seized the same. According to P.W.3, when the trap party reached the office of the Appellant, he was in his seat. When the vigilance police giving their identity challenged the Appellant to have demanded and accepted the bribe money from the Complainant, the Appellant admitted to have received the same. Both hand washes of the Appellant were taken in chemical solution and the solution turned to light pink-rose colour. The Complainant told that on the instruction of the Accused, he kept the bribe money in the table drawer and the said money was recovered from the drawer itself by the Vigilance Inspector. In his cross- examination, P.W.3 has stated that the Appellant has not stated about demanding any bribe from the decoy and furthermore, the Complainant has not stated to have handed over the said money to the hand of the Accused. P.W.4, the accompanying witness, in his sworn testimony has corroborated with the evidence of P.W.1 that the DSP seized the tainted notes from the drawer of the table and not from the hands of the Appellant. According to P.W.5, the D.S.P., in his cross-examination (Para. 7) has stated that when the vigilance trap party members went inside the trap spot, the Complainant stood there with the tainted notes in his hand and he seized the same from the possession of the Complainant. CRLA No. 293 of 2009 Page 13 of 21 Upon challenging the Appellant to have demanded and receiving bribe of ₹3000/- from the Complainant, the Appellant became mum and denied to have received any bribe from the Complainant. In furtherance to the same, the accompanying witness explained that the Accused sensing some foul play had directed the Complainant to remove the cash from his drawer and to give it to the office of C.D.M.O. Furthermore, in all their testimony, P.Ws. 1, 3 and 5 have deposed that the pension papers were seized from the office of the Appellant but the seizing authority, P.W.7, the I.O. who took the charge from P.W.5, in his testimony under oath has stated that he had seized the provisional papers in presence of witnesses under Seizure List (Ext. 5) on 03.10.2006 and it was not seized from the possession of the Accused. He further adds that the pension papers of the Complainant were received in the office of C.D.M.O. on 21.09.2006. 17. Here, the evidence if accepted as above, it would go to establish the version of the Appellant that he never demanded or accepted the bribe would be probable. This is because from the statements of P.W.1 and 3 it emerges that it is on the instructions of the Appellant that P.W.1 kept the bribe money in the drawer of the office table and as such the Appellant had no scope to touch the same so as to get his hand wash turned pink. Assuming that having not known the money to have been kept in the drawer of the table by the Complainant, the moment the Appellant came across the same while getting some paper from inside the drawer he ought to have asked the Complainant to remove the same. The probability of this circumstance seems cogent as P.W.5, the D.S.P. in his evidence has stated that he seized the tainted money from the possession of the Complainant that goes complete contrary to the evidence of P.W.1 and 3 who stated the money was seized from the CRLA No. 293 of 2009 Page 14 of 21 drawer. Now, the probability of the Appellant getting the touch of the tainted money kept in the drawer cannot be ruled out when he brought out the paper from the drawer which obviously cannot be construed the money to have been received by him as the prosecution evidence is absolutely clear that the Appellant had any time received the tainted money in his hand. 18. In accordance to the above depositions, interestingly, P.W.1, in his section 164 Cr.P.C. statement has described the entire trap with major contradictions. In his sworn testimony, P.W.1 has stated about the last- minute conversation between him and the Appellant when the Appellant returned from the block office, he asked P.W.1 to take the money out of the drawer and to give it to the C.D.M.O. office, to which, P.W.1 in reply asked the Appellant to hand-over the money to him. The Appellant further asked the P.W.1 to take out the money from the drawer as he had kept in there. The need for recording statements of a witness under section 164 Cr.P.C. is to deter the said witness from changing their versions subsequently as section 164 Cr.P.C. statements are part and parcel of the investigation. P.W.1 has also mentioned that a person who came running to the office of the Appellant and whispered something to him. Nowhere in the prosecution case any of the witnesses have mentioned about the said person and have exclaimed that there was no person other than the clerk in the office throughout the trap, which is a significant omission on the prosecution’s part. In a case of this nature, where the evidence of demand and acceptance plays predominant role, the best evidence to prove the demand and acceptance of bribe is the evidence of decoy, but unfortunately the decoy while being examined in CRLA No. 293 of 2009 Page 15 of 21 the instant case has well resiled from his own 164 statements and his testimony is thus deemed doubtful. 19. Additionally, from the contradictions as discussed above, not enough evidence can be drawn to have proved “acceptance.” Such lack of evidence only gains prominence when the D.S.P., the officer who challenged the Appellant on demanding and receiving the bribe states that the Appellant became mum and further denied on such allegation whereas the decoy and the accompanying witness have contradictorily stated that the Appellant admitted his guilt on being challenged by the D.S.P. It is held by the Apex Court in the matter of Vijayakumar v. 20. State of T.N., (2021) 3 SCC 687 that – to the aforesaid judgments of 26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the Accused. this Court the Reference can be made in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779: (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55: (2014) 5 SCC (Cri) 543] In judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the Accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand illegal gratification is proved. for and acceptance of 21. Further in the matter of Neeraj Dutta v. State (Govt. of NCT of Delhi) (2023) 4 SCC 731, it was held that – CRLA No. 293 of 2009 Page 16 of 21 “68. What emerges from the aforesaid discussion is summarised as under: in (a) Proof of demand and acceptance of illegal gratification by a public servant as a 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. (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. (c) Further, the fact in issue, namely, the proof of demand and illegal gratification can also be proved by acceptance of circumstantial evidence the absence of direct oral and documentary evidence. (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: (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, it 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 demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant 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 Section 13 (1)(d), (i) and (ii) respectively of the Act. 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 CRLA No. 293 of 2009 Page 17 of 21 which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act. (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. (f) In the event the Complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the 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. (g) In so far 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 Section 13 (1) (d) (i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature. 22. Section 7 indicates that the overt act of demand as well as acceptance of gratification is for a motive or reward unless proven otherwise as laid down in Neeraj Dutta (supra). As discussed above, the CRLA No. 293 of 2009 Page 18 of 21 evidence laid from the side of the Complainant and others being not in consonance to that of their earlier statement recorded U/s.164 Cr.P.C and the circumstances proved being one supporting the probable case of the Appellant it is desirable not to be relied upon the versions of the prosecution witnesses which is contradictory to each other on material particular and as such to be discarded. It is an unchallenged fact that the pension papers were not in possession of the Appellant on 23.09.2006 when the alleged bribe was demanded. D.W.2, the custodian of receive register in C.D.M.O. office, in his evidence has deposed that the pension application of the Complainant was forwarded by Medical Officer, C.H.C. on 20.09.2006 and received by C.D.MO. on 21.09.2006, although, the same was entered in the receive book on 23.09.2006 vide Sl. No. 3660. Both the Appellant and D.W.2, in their evidence have expressed the delay in processing the Complainant’s application which also has not been challenged in any way by the prosecution. The delay was caused due to the transfer of Medical Officer and the official financial drawing and disbursing power was obtained by the new Medical Officer on 18.09.2006. Even P.W.7 (I.O.) in his evidence has stated that the pension papers of the Complainant were received by the C.D.MO. office on 21.09.2006, so, the provisional pension papers could not be seized from the possession of the Appellant. The application letter written by the Complainant for sanction of his pension has been submitted by the defence where the concerned Medical Officer has put his signature with seal and marked it to be forwarded to C.D.M.O. dated 20.09.2006 vide Ext. A/2. Furthermore, the Receive register too clearly shows that the pension papers were received on 20.09.2006. The argument raised by the learned counsel for the State (Vig.) is that the back date entry in the receive register is unconvincing and dubious, CRLA No. 293 of 2009 Page 19 of 21 however, from the sight of the register, it seems that the entries have several back date entries of receiving. Additionally, the application forwarded by the Appellant has a forwarding signature of 20.09.2006. Hence, the fact that there was no work of the Complainant pending with the Appellant is well established and the motive for reward does not come into the equation against the Appellant in this scenario. 23. As laid down in the matter of Sri P Manjunath vs The State By Karnataka in Writ Petition No. 10027 of 2022, that– had complained 13. If the facts obtaining in the case at hand are considered on the bedrock of the principles laid down by the Apex Court, what would unmistakably emerge is that, there is neither demand nor acceptance in the case at hand. The demand should be for any work to be performed and acceptance should be towards the said work. The documents produced along with the petition are so unimpeachable that they would clearly demonstrate that the work that came before the petitioner on 24-02-2022 was performed and the document was released on the same day itself. If the Complainant petitioner had demanded money for release of document that would have been a circumstance altogether different. The complaint is made after 14 days of release of the document when no work was pending with the petitioner, the final trap is laid after two months of registration of the document and the petitioner is not even caught to have demanded so, two months ago. Section 7 of the Act would clearly hint at a pre-paid demand for performing a work and acceptance. There is no post-paid concept under Section 7 of the Act, that too, on a trap that is laid after two months after the alleged demand. The first trap fails and the second trap is a failure. illegal gratification accepting any for him that the 24. In the instant case, it is a settled fact that the written complaint filed by the Complainant was made after the release of the concerned application and documents as also the suo moto release of unutilised leave was passed by the concerned officer in CDMO on 21.06.2009. The CRLA No. 293 of 2009 Page 20 of 21 trap was laid when the Appellant had no work pending relating to the Complainant and he was not even caught accepting the alleged illegal gratification. As the evidence of the Complainant has been deemed doubtful and reliance upon the circumstantial evidence, as it happens, any solid formidable circumstantial evidence as to proof of the demand and acceptance of the illegal gratification is not proved in a cogent manner thereof, does not lead this court to draw a definite conclusion of guilt on the Appellant’s part. 25. On a perspicacious analysis of the evidence on record and the settled principles of law in the decisions referred to above, the ingredients of offence under Section 7 of the P.C. Act are not found established. Consequently, the offence under Section 13(1)(d) will not be attracted. Hence, it is irresistible to hold that the prosecution has not been able to prove the charges against the Appellant beyond all reasonable doubt and the Appellant as such is entitled to an acquittal. 26.
Decision
In this result, the Appeal is allowed. The Appellant is acquitted of the charge. As a necessary corollary, the judgment of conviction and order of sentence convicting the Appellant for commission of offence punishable under section 7 and section 13(2) read with section 13(1)(d) of the P.C. Act are hereby set aside. (Chittaranjan Dash) Judge Signature Not Verified Digitally Signed A.K.Pradhan Signed by: ANANTA KUMAR PRADHAN Reason: Authentication Location: HIGH COURT OF ORISSA Date: 11-Apr-2024 13:46:28 CRLA No. 293 of 2009 Page 21 of 21