The High Court
Case Details
THE HIGH COURT OF ORISSA AT CUTTACK CRLA No.21 of 2006 (In the matter of an Appeal under Section 374(2) of the Code of Criminal Procedure, 1973) Dr. Subhanarayan Mohapatra ……. Appellant -Versus- State of Orissa ……. Respondent For the Appellant : Mr. R.K. Pattanaik, Advocate For the Respondent : Mr. M.S. Rizvi, Addl. Standing Counsel CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 20.06.2024 : 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 and order dated 24.12.2005 passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No.87 of 1999, whereby the learned trial Court has convicted the accused-appellant of the offence under Section 7 of the Prevention of Corruption Act, 1988 and sentenced him to undergo imprisonment for a period of six months and to pay a fine of Rs.1,000/-, in default, to undergo further imprisonment for one month. 2. The prosecution case, in short, is that, on 07.10.1996, one Sarat Kumar Rout, hereinafter referred to as the complainant, presented a written report before the O.I.C., Vigilance Police Station, Cuttack Division, inter alia, alleging therein that, on 28.09.1996, he had taken his son and daughter to the hospital for their treatment. The appellant, after examining both the children, demanded Rs.20/- each and the complainant protested to the same, but eventually, paid the amount. Subsequently, when the complainant further wanted to take his daughter for treatment, the appellant again demanded Rs.20/- to prescribe medicines. Being aggrieved, the complainant presented the written report before the Inspector of Vigilance, Bhubaneswar. After registration of the F.I.R., as per the direction of the S.P., Vigilance, Cuttack Division, a legal trap was arranged and after giving demonstration, report was prepared. The trap was successful, the appellant was caught red-handed and subsequently he was arrested. Thereafter, the detection report was Page 2 of 13 prepared. After the completion of investigation, charge sheet was submitted under Sections 13(2) read with Section 13(1)(d) and Section 7 of the P.C. Act against the appellant. 3. During the trial, the prosecution, in order to substantiate the charges, examined seven witnesses, including the complainant as P.W.2, and exhibited 16 documents. On the other hand, the defence presented a plea of complete denial, false implication, and examined three witnesses in support of his defence. 4. Out of 7 witnesses examined by the prosecution, P.W.1 was the Magisterial witness, who accompanied the raiding party to the hospital. P.W.2 was the complainant, P.W.3 was the overhearing witness, and P.W.4 was the witness to prove the writing and signature of the accused in the prescription. P.W.6 was the Scientific Officer and P.W.7 was the I.O. of the case. 5.
Legal Reasoning
The learned trial Court, upon appreciation of the evidence, found that the evidence of P.W.3, the over-hearing witness, got corroborated with the testimony of P.W.2, the complainant, with respect to the demand of the bribe by the accused. Additionally, the evidence of P.W.7, Page 3 of 13 the I.O., proved the recovery of the tainted money from the accused. Moreover, the defence failed to show that the amount of Rs.20/- was a legal remuneration that the appellant was entitled to receive. 6. The learned trial Court, after analyzing the entire evidence on record, came to a conclusion that the prosecution successfully proved its case beyond reasonable doubt with respect to the offence under Section 7 of the P.C. Act, and thereby sentenced the accused/appellant to undergo imprisonment for six months and to pay a fine of Rs.1,000/-, and in default, to undergo further imprisonment for one month. However, due to lack of relevant evidence, the learned trial Court acquitted the accused of the offence under Section 13(1)(d) read with Section 13(2) of the P.C. Act. 7. PW.1 and P.W.3 being the magisterial witness and the over- hearing witness respectively, have reneged on their statement recorded under Section 161 of Cr.P.C., and did not support the prosecution case. In that scenario, the prosecution has been left with the evidence of P.W.2, who was the decoy/complainant in the present case. With regard to the demand of bribe by the present accused, P.W.2, in his statement, Page 4 of 13 has given a shaky account, which does not inspire confidence. The statement of P.W.2 is the backbone for the prosecution case and has been dealt with by the learned trial Court in the following manner: “8. As indicated above P.W.2’s evidence is the solitary evidence on the question of demand of Rs.20/- by the accused for treatment of his daughter namely “Baby” pending consideration of the credibility or genuineness of his version, certain admitted facts made by the accused himself in that regard deserves consideration as the admitted fact need not be proved. In his evidence the accused has admitted that he has issued two prescriptions Exts.12/1 and 12/2 on 8.10.96 in the name of Sarat Rout and Babi respectively. They are the complainant and his daughter. It is the consistent claim of the complaint that the accused demanded Rs.20/- in respect of his daughter “Baby’ and not in respect of himself or his son. However, the fact remains that the accused has issued the prescription Ext.12/2 in respect of daughter of the complainant on the concerned day. As such that part of the fact stated by P.W.2 can safely believed to find that the accused has attended the daughter of the complainant on the concerned day. 9. With regard to the alleged demand of Rs.20/- by the accused at the hospital attending her, the contents the F.I.R. Ext.11 does not clearly speak about it, as the complainant too in his evidence has not specifically told about demand of the accused at the spot. P.W.2 (complainant) has not disclosed in his evidence if at all he contacted the accused that he would bring his daughter to the accused for her treatment on 8.10.96 and that the accused raised the demand of Rs.20/-. The evidence of the I.O. (P.W.7) and that of P.W.3 also is silent on his subtle, who have simply stated that the accused demanded and collected Rs.20/- from each patient as per the version of P.W.2 received during the preparation of the trap. As such, it is undoubtedly the fact that the F.I.R has been lodged by P.W.2 without any specific demand of Rs.20/- on or before 8.10.96 by the accused and under the impression that the accused would take Rs.20/- from P.W.2 as usual on 8.10.996 for treatment of the daughter of P.W.2.” Page 5 of 13 8. It is immaterial as to whether the demand was made earlier or at the spot instantly because all that is required to prove the guilt of the accused is that there be a demand and an acceptance of the bribe money, which is not due to him in discharging his duties as public servant. As indicated above, one part of the claim of the complainant about treatment of his daughter by the accused has been believed for the admission of the accused to have issued the prescription marked as Ext.11/2 on the relevant day after attending the daughter of P.W.2. Secondly, though the evidence of P.W.2 about demand and acceptance of Rs.20/- has not been completely corroborated by the testimony of the overhearing witness (P.W.3), but the plea has been taken by the accused that he received the money from P.W.2 not at the hospital, but on the way to home, the onus shifts on the defence to prove the same. Since there is no controversy that the currency notes recovered from the accused are the tainted money itself, the plea of the accused amounts to an admission limited to the factum of receipt of the money by him. In that case, the accused has the heavy burden on him to prove that it was received for some other Page 6 of 13 purpose and not as bribe. In this connection, evidence of overhearing witness (P.W.3), the evidence of the I.O. (P.W.7), the detection report (Ext.2) and the seizure list Ext.5 and the fact that hand wash of the appellant had positively reacted in sodium carbonate solution are overwhelming evidence against the accused to establish the fact that he received the tainted money at the spot and not elsewhere. The evidence of P.W.3 on this aspect and P.W.1 not supporting the prosecution version, no more affects the bonafides of the prosecution case on the aspect of receipt of tainted money, in view of the admission of the accused and recovery of money from his possession. Therefore, the prosecution could prove the factum of “Acceptance”. 9. However, analysis of the evidence by the learned trial Court indicates that the prosecution has indeed failed to prove the factum of the “demand”. I am completely in agreement with the findings of the learned trial Court insofar as failure of the prosecution to prove the factum of demand is concerned.
Legal Reasoning
10. Mr. Rizvi, learned Additional Standing Counsel for the Vigilance Department, submitted that even if the factum of demand is not proved, Page 7 of 13 the conviction recorded by the Court below under Section 7 of the P.C. Act against the petitioner could be sustained. There is no requirement to have direct evidence regarding the factum of demand, suffice to have circumstantial evidence. He further submitted that enough material has come on record to prove that the accused has accepted the bribe during the trap. Therefore, the presumption under Section 20 of the P.C. Act operates against him. The prosecution, in these circumstances, is only required to prove that the accused has accepted or agreed to accept the gratification, even though there may not be having any direct evidence of demand. Even if the direct evidence of demand is absent, conviction can be made by judicial scrutiny of circumstantial evidence and material evidence with the aid of Section 20 of the P.C. Act. He relied upon various judgments, starting from the judgment reported in (1980) 2 SCC 390 in the case of Hazari Lal v. State (Delhi Administration), to the judgment reported in (2004) 3 SCC 753 in the case of T. Shankar Prasad v. State of A.P. He further submits that, in the present case, the chemical wash of both the hands and shirt pocket of the accused was all positive. The examination report from the State Forensic Science Page 8 of 13 Laboratory vide Ext.15 further fortifies the factum of acceptance. He also submitted that it is a settled principle of law that very fact that the accused was in possession of tainted GC notes against an allegation that he demanded and received the amount is res ipsa loquitor. He has relied upon the judgment of the Hon’ble Supreme Court reported in (1974) 4 SCC 560 in the case of Raghubir Singh v. State of Haryana and submitted that presumption under Section 20 of the P.C. Act is obligatory against the accused. In the present case, the accused has miserably failed to rebut the presumption that the money recovered was received as legal remuneration and as such, it could be presumed that the money received by the accused was for a motive or reward other than legal remuneration. He further submitted that though the appellant had taken a plea of defence that the money received from the complainant was the loan given by the appellant to the complainant to purchase medicines, such plea is per se inadmissible and not plausible at all. This was outrightly rejected by the learned Court below, which is, in fact, the right appreciation of the evidence. Page 9 of 13 Relying upon the judgment of the Constitutional Bench of the Hon’ble Supreme Court passed in Neeraj Dutta v. State (Govt. of NCT of Delhi, reported in (2021) 17 SCC 624, Mr. Rizvi submitted that the conviction recorded by the learned Court below cannot be questioned merely because of the fact that the alleged demand made by the accused could not be proved. The Constitution Bench has held that, in absence of the evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of the culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the P.C. Act based on other evidence adduced by the prosecution on receipt of the tainted money. 11. Mr. Rizvi in nutshell submitted that in the instant case, the prosecution has sufficiently proved the factum of acceptance and the accused has failed to discharge his burden of proof that he has accepted the said tainted money as legal remuneration. Therefore, under the aid of Section 20 of the P.C. Act, the petitioner has been rightly convicted. 12. It is no more res integra that demand and acceptance, both are prime ingredients to establish the offence under Section 7 of the P.C. Page 10 of 13 Act. Section 7 of the Act deals with the offences relating to public servants. The contours of the Act and the specific provisions, i.e., Sections 7, 9 and 13 and their interplay demonstrates that to prosecute any public servant for the offence of bribery, the condition precedent of invoking Section 7 of the Act is to prove that he has made a demand. In other words, without there being any proof of demand, there can be no conviction under Section 7 of the P.C. Act. It is also no more res integra that a mere recovery of the alleged tainted/bribe money from the accused cannot be a ground to convict the accused without there being specific proof of demand of bribe. 13. The Hon’ble Supreme Court in the Case of V. Sejappa v. State, reported in (2016) 12 SCC 150, has held as under:- “20. In State of Kerala v. C.P. Rao [State of Kerala v. C.P. Rao, (2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714], it was held that mere recovery of tainted money is not sufficient to convict the accused and there has to be corroboration of the testimony of the complainant regarding the demand of bribe. 21. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to the following observation in Mukut Bihari v. State of Rajasthan[Mukut Bihari v. State of Rajasthan, (2012) 11 SCC 642 :(2013) 1 SCC (Cri) 1089 :(2013) 1 SCC Page 11 of 13 (L&S) 136], wherein it was held as under : (SCC pp. 645-46, para 11). “11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person.” 14. In view of the aforementioned settled principle of law, in a trap case, mere receipt of bribe money by the accused is not sufficient to fasten the guilt on the accused, in the absence of any other evidence with regard to the demand of the illegal gratification. Page 12 of 13 15. I have perused the evidence on record as well as the finding recorded by the learned Court below. It is ample to prove on record that the prosecution could not prove the factum of allegation of demand made by the accused beyond all reasonable doubts. Therefore, even if the factum of acceptance is proved by the prosecution, the liability under Section 7 of the P.C. Act cannot be affixed. Hence, the accused/appellant is entitled to benefit of doubt. 16. Accordingly, the conviction of the accused/appellant recorded by the learned Special Judge (Vigilance), Bhubaneswar vide judgment dated 24.12.2005 passed in T.R. Case No.87 of 1999 is set aside. He is set free and the bail bond is discharged.
Decision
17. The Criminal Appeal is accordingly allowed and disposed of. …………………. (S.S. Mishra) Judge Signature Not Verified Digitally Signed Signed by: AMIT KUMAR MOHANTY Reason: Authentication Location: HIGH COURT OF ORISSA, CUTTACK Date: 08-Nov-2024 17:51:07 The High Court of Orissa, Cuttack The 29th October, 2024/Amit Page 13 of 13