The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.78 of 2017 (In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure, 1973 and under Section 27 of the Prevention of Corruption Act, 1988) Sitakanta Dash ……. Appellant -Versus- State of Orissa (G.A. Department) ……. Respondent For the Appellant : Mr. S. Panda, Advocate, With Mr. Abhas Mohanty, Advocate For the Respondent : Mr. Niranjan Moharana, Additional Standing Counsel, (Vigilance) CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 29.11.2024 & 03.03.2025 :: Date of Judgment:30.05.2025 S.S. Mishra, J. The present appeal has been filed under Section 374(2) of the Code of Criminal Procedure,1973 and under Section 27 of the Prevention of Corruption Act,1988, challenging the Judgement dated 24.01.2017, passed by the learned Special Judge (Vigilance), Cuttack, in T.R. Case No.32 of 2009 corresponding to Cuttack Vigilance P.S. Case No.43 of 2005, whereby the appeal is filed assailing the conviction of the appellant U/s 13(2) r/w Section 13(1)(d) of the Prevention of Corruption Act, sentencing him to undergo R.I. for two years and to pay fine of Rs.2000/-, in default to undergo R.I. for two months. Further the appellant has also been convicted under Section 7 of the Prevention of Corruption Act, sentencing him to undergo R.I. for one year and to pay fine of Rs.1000/-, in default to undergo R.I. for two months. 2. The facts of the prosecution case bereft of any unnecessary details are as follows: - I. The present case originates from a complaint filed by P.W.1 (complainant) Santosh Kumar Sahoo, who along with his father was accused in certain criminal cases relating to alleged misappropriation of compensation funds allotted to villagers during the land acquisition process. These cases were under investigation at the NTPC Town Police Station, where the convict-appellant, Sitakanta Dash, was serving as the Officer-in-Charge (OIC). II. In the course of investigation, P.W.1 (complainant) and his father were summoned to the police station, and on 12.09.2005 when both visited the police station, his father was arrested and remanded Page 2 of 30 into custody. Following this, when P.W.1 (complainant) met the appellant, the latter allegedly demanded a bribe of Rs.70,000/- which was later reduced to Rs.35,000/- for settling the case. However, since P.W.1 (complainant) absconded, his uncle (P.W.2) met the OIC- appellant, who then conveyed to the complainant that the bribe demand now stood at Rs.30,000/- for ensuring that his name is dropped from the charge-sheet. Out of this, a sum of Rs.25,000/- was allegedly paid through a Constable, who was later made a co-accused but eventually acquitted. P.W.1 (complainant) claimed that this payment was made out of fear of arrest and termination from his job at NTPC. III. When the OIC allegedly made a further demand of Rs.5,000/-, P.W.1 (complainant), being aggrieved, submitted a written report on 22.11.2005 to the Superintendent of Police, Vigilance, Cuttack Division, which was registered as Cuttack Vigilance P.S. Case No.43 of 2005 under Section 7 of the Prevention of Corruption Act, 1988. Based on this, a trap was organized by the Vigilance Page 3 of 30 Department on 23.11.2005, involving P.W.1 (complainant) as the decoy, and other officers including P.W.4, P.W.5, P.W.6, and P.W.8. IV. During the trap preparation, P.W.1 (complainant) reiterated the bribe demands before the officers and handed over Rs.5,000/- in government currency notes, which were treated with phenolphthalein powder. These notes were then wrapped and handed back to P.W.1 (complainant) with instructions to hand them over to the accused upon demand. The trap party followed P.W.1 (complainant) where the complainant met the OIC and handed over the tainted notes, which the OIC placed inside the drawer of his office table after verifying the amount. Following this, the predetermined signal was given, and the vigilance officials entered the police station. The accused attempted to flee but was apprehended and admitted to having received the bribe. V. However, it is important to mention that there are divergent accounts of the trap incident as deposed by different prosecution witnesses during the trial before the learned Special Judge (Vigilance), Cuttack. The delinquent officer, in his defence, deposed that he was not present inside the police station when P.W.1 (complainant) Page 4 of 30 allegedly entered to hand over the bribe (tainted currency notes), as he had gone outside to attend the call of nature. According to his version, the money was allegedly placed by the complainant in the drawer of his office table in his absence, and upon his return, P.W.1 (complainant) shook his hand, following which the vigilance officials entered and apprehended him. Interestingly, this version of the incident finds corroboration in the deposition of P.W.1 (complainant), who also stated during his cross-examination that the tainted currencies were placed in the drawer before the officer returned to the room. This introduces a different dimension to the core allegation and has a bearing on the assessment of conscious acceptance of the bribing the appellant. VI. In addition to this, P.W.6 who was a hearsay witness, narrated a version which contradicted both the above set of facts. P.W.6 was part of the trap party and acted as a shadow witness. Although he was assigned to overhear the conversation and witness the transaction, P.W.6’s deposition turned out to be largely hearsay in nature and introduced inconsistencies. His statement did not align with Page 5 of 30 either the version of the OIC-appellant, who claimed that he was outside when the money was placed in the drawer, or that of P.W.1 (complainant), who admitted to have placed the money in the drawer in the officer's absence. These contradictions among key witnesses created ambiguities regarding the precise sequence of events during the trap and added complexity to the prosecution's narrative about the alleged act of bribe-taking. VII. Following the previous incident, the hand wash of the accused tested positive to the phenolphthalein, turning the sodium carbonate solution pink. The tainted currency notes were recovered from the drawer and matched with the previously noted serial numbers. Additional items such as some cash and gold were also recovered from the OIC’s (appellant’s) office. All relevant articles and documents were seized, and a detection report (Ext.3) was prepared. VIII. The investigation was taken over by P.W.8, who forwarded the tainted articles for chemical examination, recorded statements of the witnesses under Section 164 Cr.P.C., obtained the sanction order for prosecution. Upon completion of the investigation, a charge-sheet Page 6 of 30 was submitted on 16.11.2006 against the appellant under Sections 13(2) read with 13(1)(d) and Section 7 of the Prevention of Corruption Act, 1988, and against the co-accused constable under Section 12 of the P.C. Act for abetment. IX. During the trial, the learned trial Court framed charges accordingly. The appellant was convicted for the offences charged under the Prevention of Corruption Act, while the co-accused constable Girish Chandra Swain was acquitted. It is important to note that several crucial prosecution witnesses, including P.W.1 (complainant) himself, turned hostile during the trial proceedings and gave narratives which were way different from their initial statements. 3.
Legal Reasoning
Heard Mr. S. Panda, learned counsel for the appellant and Mr. Niranjan Moharana, learned Additional Standing Counsel for Vigilance for the respondents. 4. Mr. Panda, learned counsel for the appellant submitted that the prosecution case is riddled with inconsistencies and contradictions, which materially affect its credibility. It is submitted that the primary Page 7 of 30 evidence relied upon by the prosecution have materially contradicted the prosecution case, as evident from their depositions. Additionally he has submitted that there are also inconsistencies in the F.I.R. given by the complainant to the effect that the complainant was in a haste to make the appellant suffer so he seemingly mentioned the amount to be Rs.500/- instead for Rs.5000/- (it is actually evident that the FIR is tampered with a 0 being added later with some different ink) and that the FIR doesn’t mention at what place the accused asked him to meet to give the money. 5. It is further submitted by Mr. Panda, learned counsel that the trap report (Ext.10) and seizure list (Ext.9) are not corroborated by the statements of either the complainant or the shadow witness. Therefore, the basic ingredients of demand and acceptance, as required to bring home the charge under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, are not proved beyond reasonable doubt. Reliance is placed upon the decisions in B. Jayaraj v. Page 8 of 30 State of Andhra Pradesh1, wherein the Hon’ble Supreme Court held that mere recovery of tainted money is not sufficient to convict the accused in the absence of proof of demand. The Hon’ble Court observed: “……The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established.” 6. The learned Counsel for the appellant further submitted that in P. Satyanarayana Murthy v. District Inspector of Police2, as well as in Sujit Biswas v. State of Assam3, the Hon’ble Supreme Court has categorically held that suspicion, however grave it may be, cannot take the place of legal proof. The prosecution cannot afford to rest its case in the realm of "may be true"; rather, it must elevate its case to the domain of "must be true" so as to eliminate the possibility of conjecture or