Orissa High Court
2007 vs Pradeep Kumar Dash on 12 November, 2021
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLLP No. 163 of 2017
From the judgment and order dated 05.04.2017 passed by the
Special Judge (Vigilance), Bolangir in C.T.R. No.14/62 of 2003-
2007.
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State of Odisha
(Vigilance) ......... Petitioner
-Versus-
Pradeep Kumar Dash ......... Opp. Party
For Petitioner: - Mr. Sangram Das
Standing Counsel,
Vigilance Department
For Opposite party: - Mr. Trilochan Nanda
B.K. Panda
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Hearing and Order: 12.11.2021
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S. K. Sahoo, J. Heard Mr. Sangram Das, learned Standing Counsel
for the Vigilance Department and Mr. Trilochan Nanda, learned
counsel for the opposite party.
2. This leave petition under section 378(1)(3) of Cr.P.C.
has been filed by the State of Odisha (Vigilance) seeking for
leave to file an appeal against the impugned judgment and order
dated 05.04.2017 passed by the learned Special Judge
(Vigilance), Bolangir in C.T.R. No.14/62 of 2003-2007 in
acquitting the opposite party Pradeep Kumar Dash of the charges
under section 13(2) read with section 13(1)(d) and section 7 of
the Prevention of Corruption Act, 1988 (hereafter '1988 Act').
3. The opposite party faced trial for the aforesaid
offences on the accusation that he accepted bribe money of
Rs.500/- (rupees five hundred) from the informant Bhaskar Patra
(P.W.3) for preparation of his G.P.F. bill. It is the case of the
informant that he was working as a Junior Engineer in the office
of the S.D.O., Bolangir, Hydrometer Sub-Division under
Executive Engineer, Bolangir Investigation Division and applied
for G.P.F. of Rs.97,000/- (rupees ninety seven thousand) for
treatment of his mother and it was sanctioned by the S.E.,
Northern Investigation Circle, Burla on 11.11.2002 and
communicated to the Executive Engineer, Bolangir Investigation
Division, but the same was not drawn and though his periodical
increment was due from 01.10.2002, the same was also not
passed. The opposite party was working Senior Clerk in the office
and was dealing with the matter and he demanded Rs.500/-
(rupees five hundred) for the said purpose. P.W.3 agreed to pay
the amount against his will and ultimately he reported the
matter before the Vigilance.
The Superintendent of Police, Vigilance, Sambalpur
on receipt of the written report, directed the Officer in-charge,
Vigilance police station, Sambalpur to register the case and to
take up investigation and to lay the trap and then to hand over
the charge of investigation to D.S.P., Vigilance, Bolangir. After
the trap was laid and the formalities of preparation for laying the
trap was over, they proceeded to the office of the opposite party
and it is the prosecution case that the trap was successful and
tainted note was recovered from the possession of the opposite
party which he had kept in his pocket after accepting the same
from the informant and the hand wash of the opposite party
taken in sodium carbonate solution turned pink. Hand wash in
sample bottles were collected and sealed which was sent for
chemical analysis. On completion of investigation, sanction order
to prosecute the opposite party was obtained and charge sheet
was submitted against the opposite party.
4. During course of trial, the prosecution examined five
witnesses. P.W.1 is a witness to the preparation inside the
Vigilance Office and also at the spot but he did not support the
prosecution case and was declared hostile, P.W.2 is the shadow
witness, who has also not supported the prosecution case and
declared hostile by the prosecution, P.W.3 is the decoy and he is
also the informant, P.W.4 is the T.L.O. and P.W.5 is the
Investigating Officer.
The prosecution exhibited seventeen numbers of
documents. Exts.1, 2, 3, 4 and 5 are the signatures of P.W.1 in a
sheet of paper, Ext.6 is the sheet of paper containing number of
notes, Ext.7 is the preparation report, Ext.8 is the detection
report, Ext.9 is the signature of P.W.2 on the seizure list
(Ext.3/1), Ext.10 is the F.I.R., Ext.11 is the zimanama, Ext.12 is
the chemical examination report, Ext.13 is the sanction order of
G.P.F., Ext.14 is the misc. acquittance roll, Ext.15 is the sanction
order, Ext.16 is the statement of P.W.2 recorded under section
161 Cr.P.C. and Ext.17 is the statement of P.W.1 recorded under
section 161 Cr.P.C.
The prosecution proved eight material objects. M.O.I
is the brass seal, M.O.II and M.O.III are the sample bottles,
M.O.IV is the bottle containing right hand wash of the opposite
party, M.O.V is the bottle containing left hand wash of the
opposite party, M.O.VI is the bottle containing pant pocket wash,
M.O.VII is the tainted money and M.O.VIII is the pant of the
opposite party.
5. The defence plea of the opposite party is that the
informant (P.W.3) had taken Am-way articles worth of Rs.498/-
(rupees four hundred ninety eight) from his wife and it was paid
to him by the informant on the day of trap and the amount in
question was not the bribe amount.
One witness i.e. D.W.1 Lambodar Hansa examined on
behalf of the defence.
6. During trial, the material witnesses like P.Ws.1 and 2
did not support the prosecution case. Though the decoy being
examined as P.W.3 supported the prosecution case but in the
cross-examination, he has specifically stated that he and the
opposite party-accused were residing inside the Laltikra Colony
and the wife of the opposite party was dealing with Am-way
articles and that he had purchased S.A.-8 Jezjyme, Jlistel tooth
paste and brush worth of Rs.498/- from the wife of the opposite
party and had not paid the amount to the wife of the opposite
party or to the opposite party till he lodged the report. He further
stated that inside the room in question, he and the opposite party
were present and one peon, namely, Lambodar Hans (D.W.1)
was available on the verandah. The said Lambodar Hans being
examined as D.W.1 specifically stated that the incident took place
on a Friday in the year 2002 in the month of December and
P.W.3 paid Rs.500/- to the opposite party towards purchase of
Am-way products of Rs.498/- from the wife of the opposite party
and requested him to pay the same to his wife.
7. The learned trial Court after carefully analyzing the
materials on record and the evidence of all the witnesses, has
been pleased to hold that the explanation offered by the opposite
party with regard to possession of tainted money appears to be
reasonable and the defence has established its case by
preponderance of probabilities and the evidence adduced by the
defence and the cross-examination of the prosecution witness is
sufficient to rebut the presumption under section 20 of the 1988
Act and accordingly, held the opposite party not guilty.
8. Mr. Sangram Das, learned Standing Counsel for the
Vigilance Department contended that the impugned judgment
and order of acquittal is perverse and not sustainable in the eye
of law. He further submitted that law is well settled that even if
the shadow witness did not support the case of the prosecution
but if the evidence of the decoy is clinching and believable,
basing on the corroborative evidence of trap laying officer, the
conviction can be sustained. Learned counsel further submitted
that in the examination in-chief, the decoy has stated about the
demand of money made by the opposite party and he lodged the
report before the Vigilance. He further stated about the
preparation for the trap and also offering the money to the
opposite party on the date of occurrence towards bribe and
further stated about the recovery of the same from the
possession of the opposite party. He further argued that the hand
wash of the opposite party which was taken in the sodium
carbonate solution turned pink which justified the presence of
phenolphthalein powder in the hands of the opposite party by
touching the bribe money and when the evidence of the official
witnesses are clinching, the order of acquittal which has been
passed mainly basing on the defence plea is not sustainable. He
placed reliance on the decision of the Hon'ble Supreme Court in
the case of Vinod Kumar -Vrs.- State of Punjab reported in
A.I.R. 2015 Supreme Court 1206.
Mr. Trilochan Nanda, learned counsel for the opposite
party, on the other hand, supported the impugned judgment and
contended that when the decoy has made a statement in favour
of the defence plea and other important witnesses like P.W.1 and
P.W.2 have not supported the prosecution case, the learned trial
Court has rightly considered the same and since by examining
the defence witness, the opposite party has discharged his
burden and his specific defence plea gets support from the
prosecution witnesses, it cannot be said that there is any infirmity
or illegality in the impugned judgment so as to call for any
interference.
9. Adverting to the contentions raised by the learned
counsel for the respective parties and on careful analysis of the
evidence on record and on going through the impugned
judgment, the learned trial Court seems to have assessed the
evidence on record carefully and here is a case where the
shadow witness has not supported the prosecution case relating
to the demand of bribe or acceptance of the bribe by the
opposite party. P.W.3 is the decoy and though in the
examination in-chief, he has supported the prosecution case but
in the cross-examination, he has stated about the reason for
which the payment was made to the opposite party on that
particular day and such a plea is getting corroboration from the
evidence of D.W.1. The prosecution has not by way of re-
examination of P.W.3 has tried to clarify the ambiguities, which
have been brought down in cross-examination or seeking
clarification in that respect. In the case of Vinod Kumar
(supra), it is held that the testimony of a hostile witness cannot
be brushed aside and both the prosecution and the defence can
rely for their stand and stance. The Public Prosecutor has the
freedom and right to put such question as it deems necessary in
re-examination to elucidate certain answers from the witnesses.
The evidence has to be read as a whole and merely because a
witness stated something against an accused in the chief
examination, the trial Court cannot pass an order of conviction
ignoring the materials, which have been brought out in the
cross-examination in favour of the accused.
In the case of Kishore Kumar Swain -Vrs.- State
of Odisha (Vigilance) reported in (2018) 69 Orissa
Criminal Reports 925, it is held that mere receipt of the
amount by the accused is not sufficient to fasten his guilt in the
absence of any evidence with regard to demand and acceptance
of the amount as illegal gratification. 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. In a case
where the accused offers an explanation for receipt of the alleged
amount, while invoking the provisions of section 20 of 1988 Act,
the Court is required to consider such explanation on the
touchstone of preponderance of probability and not on the
touchstone of proof beyond all reasonable doubt. Therefore,
whether all the ingredients of the offences i.e. demand,
acceptance and recovery of illegal gratification have been
satisfied or not, the Court must take into consideration the facts
and circumstances brought on the record in its entirety and the
standard of burden of proof on the accused vis-à-vis the
standard of burden of proof on the prosecution would differ. It is
only when this initial burden regarding demand and acceptance
of illegal gratification is successfully discharged by the
prosecution, then burden of proving the defence shifts upon the
accused. The proof of demand of illegal gratification is the
gravamen of the offences under sections 7 and 13(1)(d) of the
1988 Act and in absence thereof, the charge would fail. Mere
acceptance of any amount allegedly by way of illegal gratification
or recovery thereof, dehors the proof of demand, ipso facto,
would not be sufficient to bring home the charge under these two
sections of the 1988 Act. The complainant cannot be placed on
any better footing than that of an accomplice and corroboration
in material particulars connecting the accused with the crime has
to be insisted upon. (Ref:- State of Punjab -Vrs.- Madan
Mohan Lal Verma reported in A.I.R. 2013 S.C. 3368, State
of Maharashtra -Vrs.- Dnyaneshwar reported in (2009) 44
Orissa Criminal Reports 425, Punjabrao -Vrs.- State of
Maharashtra reported in A.I.R. 2002 S.C. 486, V. Sejappa
-Vrs.- State reported in A.I.R. 2016 S.C. 2045, Panalal
Damodar Rathi -Vrs.- State of Maharashtra reported in
A.I.R. 1979 S.C. 1191, Mukhitar Singh -Vrs.- State of
Punjab reported in (2016) 64 Orissa Criminal Reports
(S.C.) 1016).
The evidence of the complainant should be
corroborated in material particulars and the complainant cannot
be placed on any better footing than that of an accomplice and
corroboration in material particulars connecting the accused with
the crime has to be insisted upon. Even if the trap witnesses turn
hostile or are found not to be independent, if the evidence of the
complainant and the other circumstantial evidence on record is
found to be consistent with the guilt of the accused and not
consistent with his innocence, there should be no difficulty for
the Court in upholding the prosecution case. The Trial Court
which has the occasion to see the demeanour of the witnesses is
no doubt in a better position to appreciate it and the Appellate
Court should not lightly brush aside the appreciation done by the
trial Court except for cogent reasons. (Ref:- Sri Satyananda
Pani -Vrs.- State of Odisha (Vig.) reported in (2017) 68
Orissa Criminal Reports 795)
10. In the case in hand, the acceptance of Rs.500/- by
the opposite party from the P.W.3 is not disputed. It is also not
disputed that there was recovery of Rs.500/- from the opposite
party. The only issue which arises for consideration is whether
such amount was demanded by the opposite party from P.W.3 as
bribe for preparation of the G.P.F. bill as per the prosecution
case or P.W.3 had taken Am-way articles of Rs.498/- (rupees
four hundred ninety eight) from the wife of the opposite party
and it was paid on the date of trap and the amount in question
was not the bribe amount as per the defence plea.
Law is well settled as held in case of Babu -Vrs.-
State of Uttar Pradesh reported in A.I.R. 1983 Supreme
Court 308 that in appeal against acquittal, if two views are
possible, the appellate Court should not interfere with the
conclusions arrived at by the trial Court unless the conclusions
are not possible. If the finding reached by the trial Judge cannot
be said to be unreasonable, the appellate Court should not
disturb it even if it were possible to reach a different conclusion
on the basis of the material on the record because the trial Judge
has the advantage of seeing and hearing the witnesses and the
initial presumption of innocence in favour of the accused is not
weakened by his acquittal. The appellate Court, therefore, should
be slow in disturbing the finding of fact of the trial Court and if
two views are reasonably possible on the evidence on the record,
it is not expected to interfere simply because it feels that it
would have taken a different view if the case had been tried by
it.
Thus, an order of acquittal should not be disturbed in
appeal under section 378 of Cr.P.C. unless it is perverse or
unreasonable. There must exist very strong and compelling
reasons in order to interfere with the same.
The right of appeal against acquittal vested in the
State Government should be used sparingly and with
circumspection and it is to be made only in case of public
importance or where there has been a miscarriage of justice of a
very grave nature.
In case of Bannareddy -Vrs.- State of Karnataka
reported in (2018) 5 Supreme Court Cases 790, it is held as
follows:-
"10....It is well-settled principle of law that the
High Court should not interfere in the well-
reasoned order of the trial court which has been
arrived at after proper appreciation of the
evidence. The High Court should give due regard
to the findings and the conclusions reached by
the trial court unless strong and compelling
reasons exist in the evidence itself which can
dislodge the findings itself".
In case of Ghurey Lal -Vrs.- State of Uttar
Pradesh reported in (2008) 10 Supreme Court Cases 450,
it is held as follows:-
75....The trial court has the advantage of
watching the demeanour of the witnesses who
have given evidence, therefore, the appellate
court should be slow to interfere with the
decisions of the trial court. An acquittal by the
trial court should not be interfered with unless it
is totally perverse or wholly unsustainable."
11. After going through the impugned judgment and
order of the learned trial Court, the reasoning assigned therein
for acquittal of the opposite party of all the charges, I find no
infirmity or illegality or perversity in the impugned judgment,
rather the order of acquittal of the opposite party is quite
justified in the facts and circumstances of the case and
therefore, I am not inclined to grant leave to the State of Orissa
(Vigilance) to prefer any appeal against the impugned judgment
and order of acquittal.
Accordingly, the CRLLP petition stands dismissed.
..............................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 12th November, 2021/RKMishra
