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HIGH COURT OF ORISSA: CUTTACK. CRLA No.222 of 2008 From the judgment and order dated 26.4.2008 passed by Sri B.N. Mishra, Special Judge (Vigilance), Cuttack in T.R. Case No.122 of 2007 (T.R. Case No.38 of 1999). --------- Jaya Narayan Satapathy …… Appellant. - Versus- State of Orissa …… Respondent. For Appellant : M/s A.K.Mohanty (A), R.K. Behera, R.C.Pradhan, D.Ray, and S.Nayak. For Respondent : Standing Counsel (Vigilance Department). --------- PRESENT: THE HONOURABLE SHRI JUSTICE B.K. PATEL ------------------------------------------------------------------------------------ Date of hearing: 23.7.2013 : Date of judgment: 17.9.2013 ------------------------------------------------------------------------------------- B.K. PATEL, J. This appeal is directed against the judgment and order dated 26.4.2008 passed by learned Special Judge (Vigilance), Cuttack in T.R. Case No.122 of 2007 (T.R. Case No.38 of 1999) convicting the appellant under Sections 7 and 13 (2) read with Section 13(1) (d) of Prevention of Corruption Act (for short ‘the Act’) and sentencing him to undergo R.I. for six months and to pay a fine of rupees two hundred in default to undergo R.I. for a further period of one month under Section 7 of the Act and to undergo R.I. 2 for one year and to pay a fine of rupees one hundred in default to undergo R.I. for a further period of one month under Section 13 (2) of the Act. 2. Prosecution case in brief is as follows: The appellant was working as a clerk in the office of Sub-Registrar, Dharmasala and was dealing with issuance of encumbrance certificates during the period of occurrence. On 24.6.1996 the informant-decoy P.W.2 submitted application Ext.3 to the appellant for obtaining an encumbrance certificate for the purpose of availing loan from Bank by mortgaging his land. He paid the required fees of Rs.112.75 paise and obtained receipt Ext.4 in acknowledgement thereof. On 25.6.1996, when the certificate was due for delivery, the appellant demanded from P.W.2 bribe of Rs.20/- to be paid by 26.6.1996. In such circumstances, on
Legal Reasoning
26.6.1996 morning the appellant lodged First Information Report Ext.2 before the Superintendent of Police (Vigilance), Cuttack. Upon registration of the case, Inspector of Vigilance late S.R. Pattnaik was entrusted with the investigation. In presence of officers of the Vigilance Department including Sub-Inspector of Vigilance P.W.6 as well as overhearing witness P.W.3 and Magisterial witness P.W.4, preparation for laying a trap was made and pre-trap report Ext.5 was prepared. Thereafter, P.W.2 along with the two tainted ten rupees currency notes M.Os. VIII and IX and being accompanied by P.W.3 and others went to Dharamsala. P.W.2 paid the tainted currency notes on demand by the appellant and he was caught red handed along with the bribe money. The 3 Investigating Officer seized the incriminating materials, examined the witnesses and prepared post trap detection report Ext.7. In course of investigation, Investigating Officer sent the sample hand wash of the appellant for chemical examination to S.F.S.L., Bhubaneswar and obtained chemical examination report Ext.1 prepared by scientific officer P.W.1. After obtaining sanction for prosecution of the appellant from P.W.5, A.D.M-Cum-District Magistrate, Cuttack, charge-sheet was submitted against the appellant. 3. Appellant took the plea of denial and stated in course of his examination under Section 313 of the Cr.P.C. that due to previous quarrel the informant has lodged complaint on false allegation against him. However, the appellant examined defence witness D.W.1 to take the plea that Rs.20/- was paid by P.W.2 to the appellant to make the ordinary application for encumbrance certificate urgent. 4. In order to substantiate the charge, prosecution examined six witnesses, P.Ws.1 to 6, all of whom have already been introduced in course of narration of prosecution case. Prosecution also relied upon documents marked Exts.1 to 13 and material exhibits M.Os.I to X. One witness, D.W.1, working as a deed writer in the office of Sub-Registrar, Dharmasala was examined on behalf of the appellant. 5. On an appraisal of evidence on record and placing reliance on material witnesses P.Ws.2,3,4 and 6 found to have been 4 corroborated by F.I.R. Ext.2, application Ext.3, money receipt Ext.4, pre-trap preparation report Ext.5, post-trap detection report Ext.7, and chemical examination report Ext.1, learned Special Judge held the prosecution to have established the charge against the appellant. Learned Special Judge also held the evidence of D.W.1 to be an attempt on the part of the defence to introduce a new storey which was incapable of being accepted. Accordingly, the impugned judgment and order of conviction and sentence were passed. 6. In assailing the impugned judgment, it was submitted by learned counsel appearing for the appellant that allegation in the case being demand and acceptance by the appellant of a trivial amount of Rs.20/- only, there is no scope to draw any presumption that appellant demanded and accepted illegal gratification in view of the provision under section 20(3) of the Act. In this connection,
Legal Reasoning
learned counsel for the appellant placed reliance on the decision of the Supreme Court in A. Subair –vs- State of Kerala : (2009)6 S.C.C. 587. It was also contended that in view of nature of evidence adduced by the prosecution, learned Special Judge ought to have held that there was no proof of demand or acceptance of illegal gratification by the appellant. In assailing the appreciation of evidence by the trial court, the learned counsel for the appellant placed reliance on the decisions of the Supreme Court in Suraj Mal –v- The State(Delhi Administration): AIR 1979 S.C.1408, Smt. Meena Balwant Hemke –vs- State of Maharashtra: AIR 2000 S.C.3377 and of this Court in Hrudaya Bihari Mohapatra –vs- 5 State of Orissa : 2011(Supp.-1) O.L.R.359. It was further contended that learned Special Judge ought to have accepted the version of D.W.1 that Rs.20/- was paid by P.W.2 to the appellant for converting his ordinary application for encumbrance certificate to an urgent application. 7. In reply, learned counsel for the Vigilance Department upon reference to the impugned judgment contended that findings and conclusion of the learned Special Judge are not based on presumption. It was argued that learned Special Judge has made no reference to presumption available under section 20 of the Act. Rather, on the basis of oral and documentary evidence on record learned Special Judge has held that there is unimpeachable evidence of demand and acceptance of illegal gratification by the appellant. It was also argued that by examining D.W.1 the appellant sought to introduce an all together new story in his defence. Neither any suggestion was made to P.W.2 that he paid Rs.20/- to make ordinary application for encumbrance certificate urgent nor such a plea was taken by the appellant in course of his statement recorded under section 313 Cr.P.C. Therefore, the court below rightly ignored evidence of D.W.1 and held that the prosecution has established the allegation against the appellant by marshalling positive evidence – oral and document. 8. On a close scrutiny of the evidence on record upon reference to the rival contentions, it is found that there is no basis for the appellant to urge that the trial court erroneously drew 6 presumption against the appellant under Section 20 of the Act. Sub-Sections (1) and (2) of Section 20 of the Act enumerate the circumstances under which presumption with regard to commission of offences under the Act can be drawn where public servant accepts gratification other than legal remuneration. However, sub-section (3) provides that where the gratification is trivial and the court is of the opinion that no interference of corruption may fairly be drawn, it may decline to draw the presumption as referred to in sub-sections (1) and (2). In other words, the court is not bound to draw a presumption under Section 20 where the alleged gratification is too trivial. However, in the present case, the trial court does not appear to have based any of its finding on the basis of presumption. On the contrary, the findings of the trial court appear to have been based on positive prosecution evidence-oral and documentary. Therefore, reliance, in this connection, placed by the learned counsel for the appellant on the decision of A.Subair vs. State of Kerala (Supra) is misconceived. 9. The next question which arises for consideration is as to whether the learned Special Judge(Vigilance) failed to give due weightage to the defence plea that informant P.W. 2 paid Rs.20/- to the appellant not as illegal gratification but for making the ordinary application for encumbrance certificate urgent. No doubt, P.W. 2 has admitted in his cross-examination that D.W. 1, the deed writer not only filled up Ex.t-3, the application for encumbrance certificate and accompanied the appellant to the Sub-Registrar 7 Office when he applied for the certificate, but also D.W. 1 accompanied the informant P.W. 2 and two official witnesses P.Ws. 3 and 4 to the Sub-Registrar office before the trap was laid. However, neither P.W. 2 nor any of the prosecution witnesses was suggested by the defence that money was paid by P.W. 2 to the appellant for the purpose of converting ordinary application to an urgent one. So also, in course of his examination under Section 313 of the Cr.P.C., the appellant simply took the plea of denial and false implication. Appellant did not take the plea that he was paid Rs.20/-for making the application urgent. D.W. 1 however came out with an altogether new defence version that on the date of trap appellant being accompanied by two to three others came to him, took him to the appellant, requested him to make previous ordinary application urgent and gave Rs.20/-. According to D.W.1, initially appellant refused to accept the amount for which D.W. 1 took the money and returned it to P.W.2. Thereafter, P.W. 2 went outside. After a while P.W. 2 went inside the office room and kept Rs.20 on appellant’s working table upon which he was trapped. In order to lay foundation for such plea, D.W. 1 stated that P.W. 2 filed an ordinary application for obtaining encumbrance certificate which was to be issued within a week. However, it is apparent from Ext. 4, the money receipt that encumbrance certificate applied to be obtained under application Ext. 3 was due to be ready on 25.6.1996. Therefore, there was no occasion for taking steps for conversion of application Ext. 3 to an urgent application on 26.6.1996. In such circumstances, defence plea of payment of 8 Rs.20/- to the appellant for converting application Ext. 3 to an urgent one sought to be raised by the defence by examining D.W.1 is not acceptable. The trial court has rightly ignored the plea. 10. Now the only question that remains to be decided is as to whether positive oral and documentary evidence on record would sustain the charge under which the appellant stands convicted. P.W.2 decoy informant, P.W.3 overhearing or shadow witness, P.W.4 Magisterial witness, and P.W.6 S.I. of Vigilance who accompanied the trap party are the material witnesses examined by the prosecution in order to establish the charge. Admittedly, Investigating Police officer, Inspector of Vigilance S.R.Patnaik expired for which he could not have been examined. 11. It is not disputed that the appellant was the dealing clerk in charge of issue of encumbrance certificates in the office of Sub-Registrar, Dharamgarh during the period of occurrence. In course of his examination under section 313 of the Cr.P.C. appellant further admitted that P.W.2 submitted application to obtain encumbrance certificate on 24.6.2096 and deposited required fees; that on 26.6.1996 the Vigilance trap party came to the appellant’s office and P.W.2 came near him; that both of his hands were washed separately with the help of chemical solution; that incriminating materials including tainted money were seized under different seizure lists; detection report was prepared in his presence; and that copies of the seizure lists and detection report were given to him. 9 12. P.W.2’s assertion to have been submitted application Ext.3 for issuance of encumbrance certificate to the appellant on 24.6.1996 and obtained money receipt Ext.4 gets corroboration also from the contents of Exts. 3 and 4. P.W.2 testified that appellant told him to come on 25.6.1996 for obtaining the certificate. Such assertion is corroborated by the entry in the money receipt Ext.4 to the effect that the encumbrance certificate was due to be ready on 25.6.1996. P.W.2 alleged that on 25.6.1996 when he approached the appellant at about 10.30 A.M. the appellant demanded Rs.20/- as bribe for giving the encumbrance certificate. P.W.2 told the appellant that he would pay the amount on the next date. P.W.2 asserted that he lodged first information report Ext.2 at about 8.00 P.M. on 26.6.1996 with the Superintendent of Police(Vigilance), Cuttack. Contents of the first information report Ext.2 corroborate testimony of P.W.2 in all material particulars. P.W.2 further testified that upon lodging of the first information report, Superintendent of Police(Vigilance) called the D.S.P. and directed him to do the needful. Four to five Vigilance officers congregated in the office of the D.S.P.. P.W.3 and P.W.4 were also called to the Vigilance office. P.W.2 narrated his grievance against the appellant and produced two currency notes of Rs.10/- denomination each. P.W.4 noted numbers of the currency notes in a piece of paper. The currency notes were treated with some powder by one of the Vigilance officers. Before application of powder the hand wash of the said Vigilance officer was taken and wash was found to be colourless. After application of powder hand 10 wash of the officer released reddish colour. Sample of colour solution was collected, sealed and preserved in a bottle. Currency notes were wrapped with a piece of paper and given to P.W.2 with a direction to give to the appellant on demand. P.W.3 was instructed to accompany P.W.2 to witness the transaction with the appellant with further instruction to relay signal to the Vigilance trap party by touching head soon after acceptance of money by the appellant. Trap preparation report Ext.5 was prepared and thereafter P.W.2 along with the trap party went to Dharmasala Sub-Registrar office in a vehicle. The vehicle was parked behind the office. P.Ws. 2 and 3 went to the office of the Sub-Registrar. The moment the appellant saw P.W.2 he asked where was the money and why P.W.2 was causing delay. P.W.2 brought out the two ten-rupee currency notes from inside the folded paper kept in his chest pocket and gave it to the appellant. Appellant counted the money and kept the currency notes on a paper kept on his table and placed a paper weight on the currency notes. Sometime thereafter the Vigilance staff came and caught both the hands of the appellant being identified by P.W.3. Both the hands of the appellant were washed separately in separate solutions and the colour of the solutions became reddish. Sample of each of the solutions was kept and sealed in two separate bottles. P.W.4 took the currency notes from the table of the appellant and compared with the numbers which he had noted down and declared that the numbers tallied. Hand wash of P.W.4 was taken and its colour became reddish. Sample of that solution 11 was kept and sealed in a bottle. The tainted currency notes, paper weight and the paper with which currency notes had been folded were seized under seizure list Ext.6. After the trap, detection report Ext.7 was prepared. Contents of the seizure list Ext.6 as well as pre-trap report Ext.5 and detection report Ext.7 corroborate the evidence of P.W.2. 13. P.W.3 the overhearing witness also deposed regarding preparation for the trap made by the Vigilance officers before proceeding to Dharmasala. He further testified to have accompanied P.W.2 to Dharmasala and thereafter to the office of the appellant. He deposed that P.W.2 talked with the appellant when he remained on the verandah. Thereafter P.W.2 gave money to the appellant who received it and put on the paper lying on his working table and placed a paper weight on it. On signal being given by P.W.3, the Vigilance staff rushed into the record room and caught both the hands of the appellant. P.W.3 further deposed regarding taking of hand wash of the appellant with a solution which released red colour, preservation of hand wash, comparison of numbers of the currency notes by P.W.4, collection and preservation of P.W.4’s hand wash, collection and preservation of wash of paper and paper weight lying on the appellant’s table and seizure of incriminating articles. P.Ws.4 and 6 also testified regarding preparation of the trap and recovery of tainted money. Nothing has been elicited in course of cross-examination of P.Ws.2,3,4 and 6 to discredit their evidence. In the absence of any 12 inconsistency or infirmity in their evidence, each of them is found to be reliable witness. 14. Not only D.W.1 stated that P.W.2 kept Rs.20/- on the appellant’s working table but also defence suggestion was made to P.W.6 in course of his cross-examination that P.W.2 cunningly and cleverly put the tainted money on appellant’s table. However, evidence of four materials witnesses regarding acceptance of money by the appellant and recovery thereof in course of trap has been corroborated by evidence of Scientific Officer P.W.1 and the contents of the chemical examination report Ext.1. P.W.1 testified to have examined the contents of sealed bottles and found presence of Phenolphthalein in Sodium Carbonate solution. The sealed bottles have been produced in Court. Evidence of P.W.1 has not been assailed by the defence by way of cross-examination. As has been pointed out earlier, appellant admitted regarding collection of his hand wash. In such circumstances, it is amply proved that the appellant accepted the tainted currency notes from P.W.2. 15, In view of the above, there appears no infirmity in the impugned judgment holding the prosecution to have established the charge against the appellant. There is no merit in any of the contentions raised on behalf of the appellant. The decisions in A. Subair –vs- State of Kerala(supra), Suraj Mal –v- The State(Delhi Administration) (supra), Smt. Meena Balwant Hemke –vs- State of Maharashtra (supra), and Hrudaya Bihari Mohapatra –vs- State of Orissa(supra) relied upon by the learned counsel for the 13 appellant were rendered on the basis of appreciation of nature of evidence adduced in the said cases. In view of nature of prosecution evidence adduced in the present case, the decisions are of no assistance to the appellant. Therefore, the impugned judgment and order are confirmed. The appeal is dismissed. ….………………… B.K. Patel, J. Orissa High Court, Cuttack, Dated the 17th September, 2013/B. Jhankar