The High Court
Case Details
IN THE HIGH COURT OF ORISSA AT CUTTACK CRLREV No.111 of 2017 Pankaj Kumar Lenka …. Petitioner Mr. H. K. Mund, Advocate -versus- Republic of India (CBI) …. Opp. Party Mr. Sarthak Nayak, Special Public Prosecutor (CBI) CORAM: JUSTICE S.K. SAHOO Order No. ORDER 01.03.2023 34. This matter is taken up through Hybrid arrangement (video conferencing/physical mode). Heard learned counsel for the petitioner and learned Special Public Prosecutor for the C.B.I. This criminal revision petition has been filed by the petitioner Pankaj Kumar Lenka challenging the order dated 20.01.2017 passed by the learned Special Judge, CBI-II, Bhubaneswar in T.R. No.9 of 2015 in rejecting the discharge petition filed by the petitioner and fixing the case for consideration of charge. Learned counsel for both the parties submitted that as on date, no charge has been framed. The F.I.R. dated 12.03.2015 lodged by one Bijaya Kumar Bhuyan reads as follows: // 2 //
Legal Reasoning
the Investigating Officer found prima facie material to constitute the ingredients of the offences punishable under section 7 and 13(2) read with section 13(1)(d) of the Prevention of Corruption Act against the petitioner. Mr. H. K. Mund, learned counsel appearing for the petitioner submitted that the proof of demand of illegal gratification is the gravamen of the offence under sections 7 and 13(1)(d)(i) & (ii) of the Prevention of Corruption Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal Page 3 of 8 // 4 // gratification or recovery thereof, de hors the proof of demand, ipso fact, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person of the accused would not be sufficient to hold him liable for the aforesaid offences. He placed reliance in the case of State of Rajasthan (CBI) -Vrs.- Anup Kumar Srivastava reported in AIR 2017 Supreme Court 3698. He further drew the attention of the Court to Annexure-3 and submitted that though it is the case of the complainant that he had applied for E.P.F. license through on-line on 11.03.2015, but the documents indicate that it was applied on-line on 12.03.2015 and therefore, there was no occasion for the complainant to come to the office of the petitioner on 12.03.2015 and seek assistance of the petitioner which would give rise demand of the bribe. Learned counsel further submitted that since the demand of bribe is a suspicious feature in this case, in the facts and circumstances of the case, it can be said that the entire prosecution case is shrouded in mystery and therefore, the learned trial Court has committed illegality in rejecting the discharge petition filed by the petitioner. Mr. Sarthak Nayak, learned Special Public Page 4 of 8 // 5 // Prosecutor appearing for the C.B.I., on the other hand submitted that the witnesses like Kamalakanta Sahoo, Bijaya Kumar Bhuyan and Ashis Kumar Mishra have categorically stated about the demand, acceptance and recovery aspect and the statements of Jayaram Mohapatra and Sachidananda Bhuyan indicate that, it is the petitioner who had given written instruction to the complainant to bring documents and the materials available on record also indicate that the complainant had applied for E.P.F. license through on-line. It is further submitted that the appreciation of the evidence is not permissible and the trial Court can assess the materials on record at the appropriate stage and prima facie materials are there on record to substantiate the demand, acceptance and recovery aspect. This also proved through the report of the chemical examiner and therefore, there is no illegality or impropriety in the impugned order passed by the learned Special Judge, CBI-II, Bhubaneswar and thus, the CRLREV may be dismissed. In support of such submission, he placed reliance on the case of State of Rajasthan -Vrs.- Ashok Kumar Kashyap reported in (2021) 11 Supreme Court Cases 191. Adverting to the contentions raised by the learned counsel for both the parties, there is no dispute that on the face of the F.I.R. and the statements on record, it appears that the witnesses Page 5 of 8 // 6 // have categorically stated about the demand aspect. There are also documents to show that there was pre- trap preparation and materials on record to show that the tainted money of Rs.15,000/- (rupees fifteen thousand) was recovered from the pant pocket of the petitioner and hand wash of the petitioner which was sent for chemical examination showed presence of phenolphthalein powder. Therefore, there are prima facie materials on record to show the demand, acceptance and recovery of tainted money. The point which is being raised by the leaned counsel for the petitioner as to whether in view of Annexure-3/1, it is possible on the part of the complainant to make an on-line application on 11.03.2015 or not and whether there was any occasion on the basis of Annexure-3/1 to come in contact with the petitioner so that he will raise a demand, obviously are matters which require appreciation of evidence at the appropriate stage. In case of State of Bihar -Vrs.- Ramesh Singh reported in (1977) 4 Supreme Court Case 39, it is stated that the truth, veracity and effect of the evidence which the Prosecutor proposes to adduce are not to be meticulously judged at the time of consideration of discharge petition. The standard of test and Judgment which is to be finally applied before recording a finding regarding the guilt or otherwise of the accused is not exactly to be applied at the stage of Page 6 of 8 // 7 // discharge. At this stage, the Court is not to see whether there is sufficient ground for conviction of the accused or whether the trial is sure to end on his conviction. Even a strong suspicion which leads the Court to think that there is ground for presuming that the accused has committed an offence then it is not open to the Court to say that there is no sufficient ground for proceeding against the accused in respect of commission of offence. In the case of Ashok Kumar Kashyap (Supra), it is held as follows: “13. …….While discharging the Accused, the High Court has gone into the merits of the case and has considered whether on the basis of the material on record, the Accused is likely to be convicted or not. For the aforesaid, the High Court has considered in detail the transcript of the conversation between the complainant and the Accused which exercise at this stage to consider the discharge application and/or framing of the charge is not permissible at all. 14. As rightly observed and held by the learned Special Judge at the stage of framing of the charge, it has to be seen whether or not a prima facie case is made out and the defence of the Accused is not to be considered. After considering the material on record including the transcript of the conversation between the complainant and the Accused, the learned Special Judge having found that there is a prima facie case of the alleged Page 7 of 8 // 8 // offence Under Section 7 of the PC Act, framed the charge against the Accused for the said offence. The High Court materially erred in negating the exercise of considering the transcript in detail and in considering whether on the basis of the material on record the Accused is likely to be convicted for the offence Under Section 7 of the PC Act or not.” Considering the submissions made by the learned counsel for the respective parties, the statement of the witnesses and the documents available on record and after going through the citations placed, I find no justification to interfere with the impugned order. Accordingly the CRLREV stands dismissed. Since it is a case of the year 2015, the learned trial Court shall do well to expedite the framing of charge and also try to conclude the same within a period of one year from the date of framing of the charge. A copy of the order be communicated to the learned trial Court by Registrar (Judicial) through e- mail for compliance. A free copy of this order be handed over to the learned Special Public Prosecutor appearing for the C.B.I. Judge ( S.K. Sahoo) Sipun Page 8 of 8
Arguments
“I, Sri Bijaya Kumar Bhuyan, aged about 48 years, S/o- Late Dwijbar Bhuyan, permanent resident of Naranpur, PO-Belagachhia, PS-Baranga, District- Cuttack presently staying at Plot No.285/2857, Nandan Vihar, Kalarahanga PS. Infocity PO-KIIT, Bhubaneswar beg to report that I am the Proprietor of SAI intelligence Security Services, Bhubaneswar. I had applied for EPF license through on-line on 11.03.2015. After applying on line, I went to the office of EPFO, Bhubaneswar and ascertained that Sri Pankaj Kumar Lenka, Enforcement Officer, Employee Provident Fund Organization, Bhubaneswar is dealing with the matter. When I met him, he told to come with documents. Today i.e. on 12.03.2015 at about 10.30 AM, when I met Shri Lenka with the documents and requested to do my work as it is required urgently, Sri Lenka demanded Rupees Fifteen Thousand from me. When I expressed my inability, he asked me to come with the demanded bribe of Rs.15000/- along with required documents (written by him in the cover file) at the office hour on 13.03.2015. Further he told if I do not pay the demanded bribe, he will not process my file. I do not want to pay any bribe to Sri Lenka. It is therefore requested to take necessary legal action against Sri Pankaj Kumar Lenka, Enforcement Officer, Employee Provident Fund Organization, Bhubaneswar.” It appears from the case records that the trap was successful and on completion of investigation, it was found that the petitioner had demanded and Page 2 of 8 // 3 // accepted bribe of Rs.15,000/- (rupees fifteen thousand) from the complainant Bijaya Kumar Bhuyan on 12/13.03.2015 for showing official favour to him by abusing his own official power/position. The transaction/conversation made between the complainant Bijaya Kumar Bhuyan and the petitioner was seen/heard by two Administrative Officers of the E.P.F. Office and independent witnesses and other team members and the C.F.S.L. expert’s opinion also reveals that in the hand wash of both the hands of the petitioner, presence of phenolphthalein powder was found which corroborated with the handling of tainted bribe money. The bribe money of Rs.15,000/- (rupees fifteen thousand) was recovered from the petitioner in presence of independent witnesses and accordingly,