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THE HIGH COURT OF ORISSA AT CUTTACK GCRLA No.27 of 2015 (In the matter of an application under Section 378(1) & (3) of the Criminal Procedure Code, 1973) State of Odisha (Vigilance) ……. Appellant -Versus- Duryodhan Mohanty and another ……. Respondents For the Appellant : Mr. Sangram Das, Standing Counsel for Vigilance For the Respondents : L. N. Rayatsingh, Advocate CORAM: THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA Date of Hearing: 27.06.2024 :: Date of Judgment: 30.07.2024 S.S. Mishra, J. 1. The present Government Criminal Appeal filed by the State- appellant under Section 378(1) & (3) of Cr.P.C. is directed against the judgment and order dated 30.11.2009 passed by the learned Additional Special Judge (Vigilance), Bhubaneswar in T.R. Case No.101/11 of 2007/96, whereby the learned trial Court has been pleased to acquit the respondent No.1 from all the charges punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short <P.C. Act=) and convicted the respondent No.2 for the offence under Section 7 of the P.C. Act while acquitting him from the other charges. In lieu of the conviction recorded against the respondent No.2 for the offence under Section 7 of the P.C. Act, he was sentenced to imprisonment till rising of the Court along with a fine of Rs.5,000/-, in default, to suffer S.I. for three months. 2. The appellant-State is aggrieved by the aforementioned acquittal recorded in favour of the respondents. 3. During pendency of the Government Criminal Appeal, the respondent No.2 has died. Therefore, the Appeal against him stood abated. 4. The prosecution case, in short, is that the informant, namely, Godabarish Das, went to the Sub-Registrar’s Office to register a sale deed in his favour. After completion of registration, the vendor sold the land in favour of the informant. For getting the said registered deed, the Page 2 of 10 informant met with the Sub-Registrar, namely, Pradip Mohanty and demanded the registered deed. The Sub-Registrar said that the office bearers are taking 2% on Rs.100/- for the deed and that the Sub-Registrar is entitled to get Rs.120/- from the informant since the consideration amount for his sale deed was Rs.6,000/-. The informant expressed his inability to pay Rs.120/-. It is further alleged that the informant approached the accused Dolagobinda Pattnaik as per the instruction of the Sub-Registrar and asked him for the registered sale deed. The accused- respondent No.2 repeated his demand for bribe amounting to Rs.120/-. It was settled that, the informant has to pay the bribe amount of Rs.120/- to the accused after a few days. Basing upon such allegations, the informant approached the D.S.P. (Vigilance), Bhubaneswar and lodged an F.I.R. against the respondents for the alleged offences under Sections 7, 13(2) read with Section 13(1)(d) of the P.C. Act. 5. After getting direction from the appropriate authority, the trap party along with the informant, in presence of the witnesses, made preparation and a small demonstration of the things they will do during the trap and accordingly mingled chemical powder with hundred rupees note, kept the Page 3 of 10 required chemical solution and after making full preparation, they proceeded to the Sub-Registrar office. All remained at a reasonable distance. It is further case of the prosecution that the accused No.2 received the tainted money and kept that money in his pocket and subsequently handed over the money to the other accused, who after receiving the same kept it in his office drawer. Thereafter getting signal, the vigilance staff arrived at the spot and asked for the money. The accused showed the money to them and the same was recovered from the
Legal Reasoning
table drawer of accused, Mr. Mohanty. Thereafter, the vigilance staff washed both the hands of both the accused persons in chemical solution separately and the solution turned pink and then they kept the solution in separate bottles and sealed the same. After that, the shirt of the accused Dolagobinda Pattnaik, particularly pocket was washed with chemical solution and that turned pink. The vigilance staff, thereafter, returned and prepared the detention report vide Ext.4 and sent the sealed bottles to Forensic Science Laboratory for test, and seized those articles. 6. After completion of investigation, the I.O. submitted charge-sheet against the accused persons for the offences under Sections 7, 13(2) read Page 4 of 10 with Section 13(1)(d) of the P.C. Act. The prosecution, in order to substantiate its case against the respondents, examined as many as eight witnesses. Out of whom, P.W.2 was the informant. P.Ws.3, 5, 6, 7 and 8 were the official witnesses whereas P.W.4 was the Sanctioning Authority. 7. Heard Mr. Sangram Das, learned Standing Counsel appearing for the appellant and Mr. L.N. Rayatsingh, learned counsel appearing for the respondents. 8. Since the appeal against the respondent No.2 has already been abated, Mr. Das, learned Standing Counsel for the appellant confines the present appeal to the case of the respondent No.1 who has been acquitted from all the charges. The trial Court, while dealing with the case of the respondent No.1, has arrived at the following conclusion:- <7. So far as the other accused, Duryodhan Mohanty is concerned, there is no whisper in the F.I.R. that Duryodhan Mohanty demanded Rs.100/- from the informant. Though from the evidence it appears that Duryodhan Mohanty demanded the bribe money that is not believable because that fact has not found in the F.I.R. i.e. the initial statement. So also from the preparation report there is no scent that Duryodhan Mohanty demanded Rs.100/-. But the money was found from the table drawer of Duryodhan Mohanty. Mere possession of tainted money in the drawer of Duryodhan Mohanty cannot fasten into crime, as Duryodhan Mohanty has neither demanded the bribe Page 5 of 10 money nor he has stated in his statement that money was kept in his drawer. But he has stated that he is completely innocent and not connected with the crime. Learned defence counsel submitted that as the informant has enimical term with the Sub-Registrar, Pradip Mohanty, because he has filed a Consumer case against him and lost he has falsely implicated, and Pradip Mohanty, Dolagobinda Patnaik Duryodhan Mohanty in this case. There may be enmity with the Sub-Registrar, Pradip Mohanty or the accused persons. But that cannot prove the innocence of Dolagobinda Patnaik and Pradip Mohanty though Pradip Mohanty is not an accused before this court. So far trap is concerned all the witnesses, police officers, informant, independent witnesses have all successfully proved have not been broken in cross examination to prove that trap was laid and the tainted money was accepted by Dolagobinda Pattnaik and after the money was accepted his hand was washed in chemical solution, his wearing shirt was seized, that was also washed in chemical solution, those articles have been seized in presence of the independent witnesses and have been marked as M.O.s. The only argument the learned defence counsel submitted that accused Dolagobinda Patnaik did not receive the money for himself, but on behalf of Sub-Registrar, Pradip Mohanty who was his boss in the office and a subordinate has to obey the direction of his boss. There is no law that a in subordinate will oblige his Higher Officer supporting him to corruption. Section 7 of the Prevention of Corruption Act has specifically stated that if any public servant accepts or accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor of any person or for rendering or attempting to render any service or than Page 6 of 10 to any person, with the Central disservice Government or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government Company referred to in clause (c) of sec.2 or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extent to five years and shall also be liable to fine. Therefore, in this case accused Dolagobinda Pattnaik receives bribe money on behalf of his authority and therefore he is found guilty U/s. 7 of the P.C. Act. But so far as offence U/s. 13(1)(d) read with Section 13(2) of the said Act has not been ably established by prosecution against the accused, Dolagobinda Pattnaik.= 9. Perusal of the evidence led by the prosecution is clearly illuminating that in so far as the deceased-respondent No.2 is concerned, he had received the alleged bribe money on behalf and on instruction of his Superior Authority. However, in so far as the Respondent No.1 is concerned, he has neither demanded the bribe nor has knowledge of acceptance. Therefore, the learned trial Court has rightly acquitted the respondent No.1 for the offence under Section 7 of the P.C. Act. The learned trial Court further records that the prosecution has failed to prove the charges of offence under Sections 13(1)(d) read with Section 13(2) of the P.C. Act against either of the accused persons. Page 7 of 10 10. 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. 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 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. 11. The Hon’ble Supreme Court in the Case of V. Sejappa vs. 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. Page 8 of 10 it to make illegal gratification and 21. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant 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 (L&S) 136], wherein it was held as under : (SCC pp. 645-46, para 11). that <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.= Page 9 of 10 12. 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 of the accused, in the absence of any evidence with regard to the demand of the illegal gratification. 13. Taking into consideration the evidence on record and the settled principle of law, I find no legal infirmity in the findings recorded by the learned court below while acquitting the respondent No.1. Therefore, the Government Criminal Appeal against the judgment of acquittal and sentence of the learned court below fails. 14. Accordingly, the GCRLA is dismissed. ……………… S.S. Mishra (Judge) The High Court of Orissa, Cuttack Dated the 30th July, 2024/Swarna Prava Dash, Senior Stenographer Signature Not Verified Digitally Signed Signed by: SWARNAPRAVA DASH Designation: Senior Stenographer Reason: Authentication Location: High Court of Orissa Date: 13-Aug-2024 12:17:30 Page 10 of 10