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Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLA NO. 437 of 2010 (In the matter of application under Section 378(4) of the Code of Criminal Procedure, 1973.) Raja Kishore Mishra …. Appellant -versus- State of Odisha (Vigilance) …. Respondent For Appellant For Respondent CORAM: : : Mr. B.R. Behera, Advocate Mr. M.S. Rizvi, ASC (Vig.) JUSTICE G. SATAPATHY DATE OF JUDGMENT: 05.02.2024 G. Satapathy, J. 1. This appeal is directed against the judgment of conviction and order of sentence dated 31.08.2010 passed by Shri. S.K. Mohanty, learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No.115 of 1998 convicting the appellant for offence punishable U/S 7 of the Prevention of Corruption Act, 1988 (in short “the Act”) and sentencing him to CRLA No. 437 of 2010 Page 1 of 26 undergo Rigorous Imprisonment (R.I.) for one year and to pay a fine of Rs.1,000/-, in default whereof, to undergo R.I. for a further period of one month, while acquitting the appellant of the charge for offence U/Ss. 13(1)(d) punishable with Sec. 13(2) of the Act. 2. Briefly stated, the prosecution case is that one Sudhakar Bhola (PW4) had obtained a decree for Plot No.715 measuring 16 acres of land in Mouza Hasinpur from the Court of Civil Judge, Puri in T.S. No. 366 of 1994 and accordingly, he had applied for mutation of the aforesaid land in the Office of the Tahasildar, Puri vide Mutation Case No. 352 of 1996, but the appellant, who was the R.I. at the relevant time and the peon attached to his Office namely Somanath Mishra (since deceased) had demanded bribe of Rs.16,000/- @ 1,000/- per acre, but the complainant (P.W.4) expressed his inability to pay such huge amount as a bribe and subsequently, the demand of bribe by the appellant and his peon was CRLA No. 437 of 2010 Page 2 of 26 scaled down to Rs.1,000/-. Accordingly, P.W.4 decided to pay the aforesaid bribe against his will and reported the matter to S.P. Vigilance,
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Bhubaneswar by an FIR under Ext.15 to take necessary action against the appellant and the peon. On 21.01.1998, accordingly Bhubaneswar Vigilance Case No. 10 of 1998 was registered for offences U/Ss. 13(1)(d) r/w Section 13(2)/7 of the Act and the Inspector of Vigilance P.W.5 N.N. Naik was asked to lay a trap and accordingly, P.W.5 laid a trap by taking the assistance of official witness-P.W.3 Ajay Kumar Das and the Vigilance staff. The trap was, however, found successful and the appellant was caught red handed while demanding and receiving the bribe and the bribe was also recovered from his possession, and the hand wash of the appellant so also the deceased-peon was found to be positive and on comparison of the tainted G.C. Notes found and seized from the possession of the accused-appellant were compared with and the same CRLA No. 437 of 2010 Page 3 of 26 were found tallied. At the spot, a detection report was prepared and thereafter, the case was investigated into by P.W.6-Narahari Panda, who sent the exhibits i.e. the hand washes and sample solution collected in separate bottles duly labeled and sealed, to S.F.S.L., Rasulgarh for chemical examination and P.W.6 also obtained the sanction order to launch the prosecution against the appellant and the deceased-peon from competent authorities as well as the chemical examination report was made available to the Court under Ext.1. On completion of investigation, P.W.6 submitted charge sheet against the appellant and the peon (since deceased) for commission of offences punishable U/Ss. 13(1)(d) r/w Section 13(2)/7 of the Act resulting in trial in the present case after the appellant denied to plead guilty to the charge for the aforesaid offences. It is to be noted here that the accused-peon expired before he could face the trial and accordingly, only the appellant faced the trial in this case. CRLA No. 437 of 2010 Page 4 of 26 3. In support of the charge, the prosecution examined altogether six witnesses vide P.Ws.1 to 6, proved documents under Exts.1 to 21 and identified material objects vide MO-I to MO-VII in evidence as against the oral evidence of three witnesses vide D.Ws. 1 to 3 and the documentary evidence vide Exts. A to D by the defence. 4. The plea of the accused-appellant in the course of trial was complete denial and false implication. 5. After appreciating the evidence on record upon hearing the parties, the learned trial Court convicted appellant for offence U/S 7 of the Act while acquitting him for offence U/S 13(1)(d) r/w Section 13(2) of the Act and accordingly, sentenced the appellant. The learned trial Court, however, has relied upon the evidence of decoy-cum-P.W.4 and overhearing witness P.W.3 as well as the evidence of Trap Laying Officer (T.L.O.)-P.W.5 to base the conviction of the appellant for the offences. CRLA No. 437 of 2010 Page 5 of 26 6. In assailing the impugned judgment of
Legal Reasoning
conviction and order of sentence, Mr. B.R. Behera, learned counsel appearing for the appellant has strongly criticized the impugned judgment for not taking into consideration the material contradictions available in the evidence of P.Ws.3 and 4, which according to him casts a serious doubt on the veracity of the prosecution case. It is further submitted that although the learned trial Court has taken into consideration the variance in the evidence of P.Ws. 3 & 4 vis-(cid:224)-vis the detection report under Ext. 5 while acquitting the accused-appellant for offences U/Ss. 13(1)(d) r/w Section 13(2) of the Act, but it has fallen in an error in holding the accused- appellant guilty of the offence U/S 7 of the Act, since the learned trial Court at one stage has considered that the prosecution has failed to prove the demand and acceptance of the bribe by the appellant, but subsequently in the same judgment, has observed contrary by holding that the prosecution has proved CRLA No. 437 of 2010 Page 6 of 26 the demand and acceptance of bribe by the accused and it has erroneously convicted the appellant for offence U/S 7 of the Act. It is also submitted that in absence of demand of bribe by the appellant, mere recovery of some currency notes in and around the appellant could not establish the charge U/S 7 of the Act by placing the burden on the accused-appellant to offer explanation as to why the appellant has accepted the bribe by taking the recourse to Section 7 of the Act which is erroneous approach and, thereby, the guilt of the appellant for offence U/S 7 of the Act has not been established beyond all reasonable doubt and therefore, the appellant is entitled to a clean acquittal. Mr. Behera, accordingly, has prayed to allow the appeal to acquit the accused-appellant of the charge by setting aside the impugned judgment of conviction and order of sentence by relying upon the decision in (i) Neeraj Dutta v. State (Government of NCT of Delhi); 2023 4 SCC 731 and (ii) V. Venkata Subbarao v. CRLA No. 437 of 2010 Page 7 of 26 State, represented by Inspector of Police, A.P.; (2007) AIR (SC) 489. On the contrary, Mr. M.S. Rizvi, learned ASC (Vigilance) by relying upon two decisions in Velusamy v. State represented by the Inspector of Police; AIR 2019 SC 4034 and Kishan Chand Mangal v. State of Rajasthan; AIR 1982 SC 1511 has submitted that the learned trial Court has not committed any illegality in convicting the appellant for offence U/S 7 of the Act, since the prosecution has established beyond all reasonable doubt that the appellant has not only demanded the bribe, but also has accepted it and, therefore, the findings of the learned trial Court cannot be considered to be unsustainable in the eye of law. It is also submitted by Mr. Rizvi that the acquittal of the appellant for offence U/S 13 of the Act in the facts and circumstance of the case is inconsequential and cannot negate the statutory presumption U/S 20 of the Act drawn against the appellant, who has CRLA No. 437 of 2010 Page 8 of 26 failed to rebut such presumption by leading clear and cogent evidence and, therefore, the conviction of the appellant cannot be set aside. In summing up his argument, Mr. M.S. Rizvi, learned ASC (Vigilance) has prayed to dismiss the appeal. 7. After having carefully glanced the impugned judgment together with the evidence on record keeping in view the rival submissions to examine the legality of conviction of the appellant for offence U/S 7 of the Act only, it appears that the learned trial Court has disbelieved the evidence of the decoy and over-hearing witness on some aspects on the ground of their evidence being at variance to each other as well as variance to the detection report and accordingly, it has found the appellant not guilty of the charge for offences U/Ss. 13(1)(d) r/w Section 13(2) of the Act by concluding that the evidence of P.Ws.3 to 5 is found to be totally unworthy of credit when the same is read with the contents of the detection report under Ext.5 with regard to the CRLA No. 437 of 2010 Page 9 of 26 demand and acceptance of bribe by the accused-R.I. In arriving at the aforesaid conclusion, the learned trial Court has taken into consideration the evidence of P.Ws.3 to 5, out of whom PWs. 3 and 4 are not only the over-hearing witness and the decoy, but also they are important and material witness for success and failure of the prosecution case. It is also not in dispute that on a scrutiny of the evidence of decoy P.W.4 and over-hearing witness P.W.3, it clearly suggests that there are interse material contradictions in the evidence of these two witnesses inasmuch as the evidence of P.W.3 runs contrary to the evidence of P.W.4 with regard to demand of bribe made by the accused-appellant. According to the evidence of the decoy-P.W.4, it reveals that he asked the appellant about his work and the appellant asked him, if he had brought Rs.1,000/- as per his demand, then he handed over the tainted money to the appellant, but the appellant handed over the same to the deceased-Peon, who kept the same in CRLA No. 437 of 2010 Page 10 of 26 the right side pant pocket and the appellant asked the deceased-peon to count the money and the peon counted the money and handed over the same to the appellant, who counted that money and kept on his table. On the other hand, the evidence of over- hearing witness-P.W.3 transpires that since both the appellant and the deceased-Peon demanded the money, the decoy handed over the tainted money to the deceased-Peon, but not to the appellant-R.I. and the deceased-peon counted the money and kept the same in his pocket and thereafter, he handed over the same to the appellant-R.I., who had counted the money and kept on his table. The aforesaid evidence of PWs3 and 4 when compared with the detection report under Ext.5, it discloses that neither the version of decoy (P.W.4) nor that of the over-hearing witness (P.W.3) is found tallying with the contents of Ext.5 and, therefore, the evidence of PWs3 and 4 cannot be accepted without corroboration which is remotely possible in this case and this Court is CRLA No. 437 of 2010 Page 11 of 26 unable to persuade itself to consider the aforesaid evidence of PWs3 and 4 to be truthful inasmuch as the contents of Ext.5 transpires that the deceased- Peon Somnath Mishra enquired from the decoy, if he had come prepared with the demanded money, to which the decoy replied in affirmative and handed over the tainted money to him and then the deceased-Peon after accepting the tainted money handed over the said amount to the appellant-R.I. and the appellant-R.I. after accepting the money kept the same on his office table and thereafter, P.W.3 gave the pre-arranged signal to the Vigilance Staff waiting outside. It, therefore, very clear that the evidence of over-hearing witness is not only clearly at variance with the evidence of decoy, but the evidence of both these witnesses are at variance with contents of Ext.5 since the over-hearing witness has stated about the demand made by both the accused persons, whereas the decoy-P.W.4 has stated in his evidence that the appellant-R.I. CRLA No. 437 of 2010 Page 12 of 26 demanded the bribe, but the detection report reveals something otherwise that the deceased-peon demanded the bribe. In such circumstance and situation, the learned trial Court was right in holding that the demand of bribe by the accused-appellant has not been established by the prosecution beyond all reasonable doubt. 8. The prosecution albeit has not been able to establish the demand and thereby, the offences U/Ss. 13(1)(d) r/w Section 13(2) of the Act was found to have been not made out against the appellant by the learned trial Court in his judgment, but it is contended on behalf of the appellant that in absence of proof of demand of bribe by the appellant, mere acceptance or recovery of tainted G.C. notes dehors the demand would not be sufficient to constitute the offence U/S 7 of the Act which means acceptance of bribe punishable under the Act. The issue on this point can be answered by taking the help of the principles/guidelines culled out CRLA No. 437 of 2010 Page 13 of 26 by the Apex Court in Neeraj Dutta (supra), wherein a Constitutional Bench of Five Judges has summarized its conclusion in paragraph-88 as under:- 88. What emerges from the aforesaid discussion is summarized as under: 88.1. (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. 88.2. (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. 88.3.(c) Further, the fact in issue, namely the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. 88.4.(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, is a case of acceptance as per Section 7 of the Act. it CRLA No. 437 of 2010 Page 14 of 26 by for the public illegal 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 gratification emanates from the public servant. This is an offence under Sections 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 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 Sections 13(1)(d),(i) and (ii), the Act. respectively of 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 which is received by the public servant, would be an offence of obtainment under Sections 13(1)(d) and (i) and (ii) of the Act. 88.5. (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 CRLA No. 437 of 2010 Page 15 of 26 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. trial, demand of 88.6. (f) In the event the complainant turns "hostile", or has died or is unavailable to let in his evidence during 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. 88.7. (g) Insofar 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 Sections 13(1)(d)(i) and (ii) of the Act. 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature. CRLA No. 437 of 2010 Page 16 of 26 On a plain reading of the conclusion arrived at by the Apex Court in the aforesaid decision at paragraph-88.4.(d)(i), there appears situation where acceptance of bribe without prior demand is stated to be covered under Sec. 7 of the Act and for analysis of the facts involved in this case, the aforesaid observation of the Apex Court is extracted as under: “88.4.(d)(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.” In this context, there may be cases where acceptance without any demand for bribe can be covered by Section 7 of the Act, but in other case, there must be such accusation only against the accused must be from the inception till its culmination and all throughout. In other words, the fact in issue or charge must be with regard to the CRLA No. 437 of 2010 Page 17 of 26 acceptance of bribe without demand of the same inasmuch as demand and acceptance of bribe are normally inseparable as no one would like to pay or tender the bribe, unless it is being demanded. However, when there is an accusation against the accused for demand and acceptance of bribe starting from the inception of lodging of the complaint/ F.I.R. against the accused which was also investigated into resulting in submission of charge sheet and ultimately in trial and therefore, in such cases, once the Court finds the accused to have not demanded the bribe or the charge for offence of demand of bribe is found to be not proved, in such situation, mere acceptance or recovery of the bribe/money would not attract the offence U/S 7 of the Act. In other words, when the decoy has alleged about the demand and acceptance of bribe by the accused, but the Court cannot find him believable for one part i.e. acceptance and not believable for other part of demand of bribe, which in the circumstance in this CRLA No. 437 of 2010 Page 18 of 26 case, the acceptance of bribe by the accused- appellant as found by the learned trial Court appears to be unsustainable or not believable, since the demand and acceptance of bribe in the such situation of the case is interwoven and inseparable. However, when the accused is only charged for offence U/S 7 of the Act in terms of the guidelines as laid down by the Apex Court in paragraph- 88.4.(d)(i) in Neeraj Dutta (supra), the accused can still be held guilty for the said offence even in absence of demand of bribe, but in this case the accused-appellant was tried for both demand and acceptance of bribe and since he was found not guilty of the offences U/Ss. 13(1)(d) r/w Section 13(2) of the Act, he then cannot be held liable for acceptance of bribe, especially in absence of proof of demand of bribe. 9. It is no more res-integra that proof of demand and acceptance of illegal gratification by a public servant is sine-qua-non to sustain the CRLA No. 437 of 2010 Page 19 of 26 conviction for charge of offences U/Ss. 7/13(1)(d) and 13(2) of the Act. Viewed the evidence on record in the aforesaid principle, this Court has already observed that the learned trial Court has found the accused-appellant not guilty of the offences U/Ss. 13(1)(d) r/w Section 13(2) of the Act for demanding and accepting the bribe, which is very clear from the observation made by the learned trial Court in the impugned judgment at paragraph-10 in the following words:- from “Rather it is crystal clear from the contents of the detection report that at the spot neither the accused R.I. had demanded the complainant nor had bribe is any accepted the same nor there evidence to show that the accused peon had demanded and accepted the bribe money for himself as well as on behalf of the accused R.I.” Besides, it is also found from the evidence of P.W.5 that when the raiding party rushed to the Office of the R.I. (appellant), he found the peon- Somanath Mishra (since deceased) was counting the money sitting on his seat and the complainant and CRLA No. 437 of 2010 Page 20 of 26 the over-hearing witness were present nearby. It is also quite astonishing to note that the learned trial Court even after recording the conclusion in paragraph-11 to the effect that the evidence of P.Ws.3, 4 and 5 regarding the alleged demand and acceptance of bribe by the appellant-R.I. from the complainant is found totally unworthy of credit when read with the contents of the detection report under Ext.5, it has proceeded to convict the appellant for accepting the bribe only which in the circumstance self contradictory. 10. Be that as it may, the acceptance is a conscious act of receiving something from others and in this case, the allegation denotes about the appellant consciously receiving the bribe, but when the evidence on record is considered, the detection report under Ext. 5 reveals that the accused-R.I. had neither demanded the bribe nor accepted it. It although appears from the evidence of P.Ws. 3 and 4 that the tainted money was recovered from the CRLA No. 437 of 2010 Page 21 of 26 possession of the appellant, but their evidence being at variance with regard to the handling of the currency notes and the same being not found in the detection report under Ext.5, it can be considered that the evidence is lacking way behind to establish that the accused had demanded the bribe followed by accepted the same. The learned trial Court has also observed in the judgment that the evidence of P.Ws. 3 to 5 with regard to the hand wash of the peon(since deceased) and the first hand wash of the accused-R.I. in sodium carbonate solution turning to pink colour was not at all free from suspicion. It cannot be denied that the learned trial Court must have the privilege to watch the demeanor of witnesses and thereby, the observation of the learned trial Court cannot be considered lightly. Law is also too well settled that the proof of demand of illegal gratification, thus, being the gravamen of the offences U/Ss. 7 and 13(1)(d) r/w 13(2) of the Act and in absence thereof, unmistakably the charge CRLA No. 437 of 2010 Page 22 of 26 therefore, would fail which has been held in P. Satyanarayana Murthy vs. District Inspector of Police, State of Andhrapradesh and another (2015) 10 SCC 152, wherein the Apex Court has further held that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. 11. Moreover, in this case, if the evidence on record would be considered, at best a recovery of some currency notes would be found to have been proved by the prosecution, although there is absolute no evidence of demand of illegal gratification by the appellant and in such situation, it would not be safe to act upon the evidence of the witnesses who are held to be unworthy of credit to record a conviction against the appellant for acceptance of the bribe. It is true that the learned ASC (Vigilance) has relied upon the decision in CRLA No. 437 of 2010 Page 23 of 26 Velusamy (supra) to the submit that in absence of proof of demand or failure of the prosecution to prove the charge U/Ss. 13(1)(d) r/w Section 13(2) of the Act, the conviction U/S 7 of the Act cannot be faulted with, but the decision relied upon by the learned ASC (Vigilance) reveals about the acquittal of the appellant for offence U/S 7 of the Act to be inconsequential in the fact of that case, however, in this case, the learned trial Court has found the evidence deficient to establish the demand of bribe by the accused-appellant. Moreover, applying the principles laid down by the Apex Court in Neeraj Dutta (supra), it clearly appears that the fact in situation of this case, mere recovery or acceptance of some currency notes dehors the demand cannot establish the charge against the appellant for acceptance, since the two vital ingredients of the offence has not been established against the appellant. In a case of demand and acceptance of bribe by the accused, the prosecution is expected to CRLA No. 437 of 2010 Page 24 of 26 lead evidence about the prior and subsequent demand of bribe and followed by acceptance of the same as illegal gratification by the public servant, but the same having been not found established in this case, the statutory presumption U/S 20 of the Act cannot be raised against the appellant inasmuch as in the case of obtainment, the offer emanates from the public servant when he makes a demand and the bribe giver accept the offer and pay the demanded gratification, which in turn is received by the public servant. Law is also very well settled that mere recovery of the tainted notes from the possession of accused would not give rise to a presumption of demand and the presumption U/S 20 of the Act would apply only if the fact of demand and acceptance of illegal gratification is proved. 12. On an overall reappraisal of evidence on record and discussion made hereinabove, especially when the learned trial Court has found the appellant to have neither demanded nor accepted the bribe, CRLA No. 437 of 2010 Page 25 of 26 the conviction of the appellant for offence U/S 7 of the Act cannot be sustained. 13. Resultantly, the appeal stands allowed on contest, but there is no order as to costs. The appellant is acquitted of the charge for the offence U/S 7 of the Act. Consequently, the impugned judgment of conviction and order of sentence passed on 31.08.2010 by the learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No.115 of 1998 are hereby set aside. 14. Since the appellant is on bail upon appeal, he is discharged of his bail bonds. (G. Satapathy) Judge Orissa High Court, Cuttack, Dated the 5th day of February, 2024/S.Sasmal Signature Not Verified Digitally Signed Signed by: SUBHASMITA SASMAL Reason: Authentication Location: High Court of Orissa Date: 06-Feb-2024 18:24:09 CRLA No. 437 of 2010 Page 26 of 26