Orissa High Court
Republic Of India vs Sri Santosh Nayak on 16 February, 2022
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLLP No. 13 of 2019
From the judgment and order dated 16.05.2018 passed by the
Special Judge, C.B.I.-II, Bhubaneswar in T.R. Case No.04 of
2006/R.C. No. 25(A) of 2005.
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Republic of India ......... Petitioner
-Versus-
Sri Santosh Nayak ......... Opp. Party
For Petitioner: - Mr. Sarthak Nayak
Special Public Prosecutor
(CBI)
For Opposite party: - Mr. H.K. Mund, Advocate
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Order: 16.02.2022
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S. K. Sahoo, J. Heard Mr. Sarthak Nayak, learned Special Public
Prosecutor (CBI) and Mr. H.K. Mund, learned counsel for the
opposite party.
2. This leave petition under section 378 of Cr.P.C. has
been filed by the Republic of India seeking for leave to file an
appeal against the impugned judgment and order dated
16.05.2018 passed by the Special Judge, C.B.I.-II, Bhubaneswar
in T.R. Case No.04 of 2006/R.C. No.25(A) of 2005 in acquitting
the opposite party Santosh Nayak of the charges under sections
7 and section 13(2) read with section 13(1)(d) 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.6,000/- (rupees six thousand) from the informant
S.Chandrasekhar, who is the son-in-law of the deceased
employee Late Dula Oram for disbursement of widow/children
pension under Employees' Pension Scheme of EPF Organization
in favour of his mother-in-law Smt. Tersa Oram (P.W.11). It is
the case of the informant that his late father-in-law Dula Oram
was working as a worker in M/s. Ores India Ltd., a private
contractor in Kalta Iron Ore Mines. The said Dula Oram expired
on 24.09.1994 and his widow Smt. Tersa Oram had submitted
an application for disbursement of widow/children pension under
Employees' Pension Scheme of EPF Organization and the said
application was received in the EPFO Sub-Regional Office,
Rourkela on 06.02.1996 and was processed. The arrear pension
of Rs.17,159/- for the period from 25.09.1994 to 31.10.1996
was paid to P.W.11 and her two children and thereafter, pension
for the months from November 1996 to May 1997 was also paid.
It is the specific case of the informant that P.W.11 could able to
get Rs.22,000/- (twenty two thousand) as pension for the period
from 2003 to 2005, but the arrear pension for the period from
1994 to 2003 was not paid till 03.06.2005. It is the further
prosecution case that since P.W.11 was an illiterate lady and was
not in a position to pursue the matter at EPFO Office, Rourkela,
she entrusted her son in-law, the informant to pursue the matter
of arrear pension. It is the specific case of the prosecution that
the informant visited the EPFO Office, Rourkela on 03.06.2005 to
enquire about the position of arrear pension and he met the
opposite party in his office. On enquiry, the opposite party told
the informant that since the matter was an old one and
complicated, if latter would pay a bribe of Rs.6,000/- (six
thousand) to him, he would process the file, so that payment of
arrears pension would be released to P.W.11 at the earliest. The
opposite party also intimated the informant that the pension
amount would be around rupees one lakh and if the informant
failed to pay the said amount, the file would not be processed. It
is the specific case of the prosecution that the opposite party told
the informant to give him the demanded bribe of Rs.6,000/- on
06.06.2005 at the restaurant near SRP Office in Railway Colony,
Rourkela at 10.00 a.m. when the opposite party would come on
his way to his office. As the informant was not willing to pay any
bribe to the opposite party, being aggrieved, he submitted a
F.I.R. before the D.S.P., C.B.I, Rourkela Unit on 06.06.2005,
who in turn forwarded the said F.I.R. to the S.P., C.B.I.,
Bhubaneswar to take further action. Basing on such F.I.R., the
S.P., C.B.I., Bhubaneswar registered R.C. Case No. 25(A) of
2005 and took up investigation of the case. 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. The informant in the case, namely, S.Chandrasekhar
could not be examined as he expired before commencement of
the trial.
During course of trial, the prosecution examined
eleven witnesses. P.W.1 N. Kishore Kumar, who was working as
Asst. Accounts Officer, EPFO Sub-Regional office, Rourkela, is a
witness to the note prepared by the opposite party in the
pension payment order file of Late Dula Oram. P.W.2 Pradeep
Kumar Mishra, who was the Regional Provident Fund
Commissioner, Rourkela is a witness to the seizure of letters and
office orders as per seizure list Ext.2. P.W.3 Sarat Kumar
Behera, who was the Section Supervisor, Branch Office, EPFO,
Rourkela, is a witness to the seizure of one pension file. P.W.4
Satyabrata Barik was the Senior Social Security Assistant of
EPFO, Rourkela, who dealt with the pension file (Ext.1). P.W.5
Nirmal Kumar Prasad was the Regional Provident Fund
Commissioner, Ranchi who accorded sanction to prosecute the
opposite party and proved the sanction order (Ext.7). P.W.6
Kishore Kumar Pradhan stated to have given a note calculating
the arrear pension of P.W.11 and her children, which was
approved and file was given to the opposite party. P.W.7 Akhila
Mohan Panda is another independent witness to the entire pre-
trap and post-trap proceeding and is a witness to the demand
and acceptance of bribe money. P.W.8 Biswa Ranjan Paikray is
the over hearing witness and is a witness to the transaction of
bribe money. P.W.9 L.T. Salu, who was the Inspector, C.B.I.,
Rourkela Unit, is a witness to the demand and acceptance of
bribe money. P.W.10 Prasanna Kumar Panigrahi is the T.L.O.
-cum- Investigating Officer and P.W.11 Tersa Oram is the widow
of Late Dula Oram.
The prosecution exhibited sixteen numbers of
documents. Ext.1 is the note prepared by the opposite party,
Exts.2, 4, 5 are the seizure lists, Ext.3 is the copy of the
documents produced by P.W.2, Ext.6 is the personal file of
opposite party, Ext.7 is the sanction order, Ext.8 is the list, Ext.9
is the pre-trap memorandum. Ext.10 is the post-trap
memorandum, Ext.11 is the spot map, Ext.12 is the formal
F.I.R., Exts.13 and 14 are the search list, Exts.15 and 16 are the
chemical examination reports.
The prosecution proved six material objects. M.O.I,
M.O.II and M.O.III are the sample bottles, M.O.IV is the cover
containing G.R. notes, M.O.V is the bottle containing pant pocket
wash of opposite party and M.O.VI is the cover containing pant of
the opposite party.
5. The defence plea of the opposite party is that the
opposite party had sold his old T.V. set to the informant and the
latter handed over the sale proceeds of Rs.6,000/- to the
opposite party on the day of trap and the amount in question was
not the bribe amount.
One witness i.e. D.W.1 Santosh Nayak examined on
behalf of the defence.
6. The learned trial Court after carefully analyzing the
materials on record and the evidence of all the witnesses, has
been pleased to hold that P.W.11 Tersa Oram had never
entrusted the informant S. Chandrasekhar to look after her
pension matter nor had she handed over any document to the
informant for getting the pension. Rather, P.W.11 had given one
document to her son in order to get pension of her husband from
one office at Rourkela, but the prosecution has failed to examine
and cite the son of P.W.11 who is another claimant of the family
pension, as a witness. It was held that from the evidence of
P.W.1 as well as P.W.11, it is seen that the informant had no role
to play to look after the pension matter of P.W.11. it was further
held that from the evidence of P.W.2, it is clear that on
03.06.2005, the pension file of P.W.11 was not with the opposite
party but from the evidence of P.W.6, it is forthcoming that it was
with the Assistant Commissioner. Thus, the prosecution has failed
to prove that the opposite party had demanded and accepted any
bribe money from the informant voluntarily and consciously, and
the evidence of P.Ws. 7, 8, 9 and 10 cannot be safely relied upon
to conclude beyond reasonable doubt that the opposite party had
accepted cash of Rs. 6000/- (rupees six thousand) from the
informant as bribe or illegal gratification. It was further held that
the oral as well as documentary evidence of the prosecution
coupled with the circumstances leading to trap and recovery of
the tainted government currency notes from the opposite party is
not a definite pointer to the conclusion that the opposite party
had accepted illegal gratification or bribe money from the
informant. The learned trial Court analysed the evidence of P.W.1
and held that nothing incriminating has been brought out in the
cross-examination by the prosecution to disbelieve his version.
The learned trial Court found P.W.7, P.W.8 and P.W.9 to be
unreliable witnesses and further held that the version of these
witnesses along with the evidence of P.W.10 as regard demand of
bribe on 03.06.2005 and 06.06.2005 was not free from
reasonable doubt and accordingly, held the opposite party not
guilty.
7. Mr. Sarthak Nayak, learned Special Public Prosecutor
(CBI) contended that the impugned judgment and order of
acquittal is perverse and not sustainable in the eye of law. He
argued that law is well settled that even if the decoy did not
support the case of the prosecution, but if the evidence of the
shadow witness is clinching and believable, basing on the
corroborative evidence of trap laying officer, the conviction can
be sustained. Learned counsel further submitted that shadow
witness has stated about the demand of money made by the
opposite party at the spot of trap and also offering of the money
by the decoy 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. It is 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. H.K. Mund, learned counsel for the opposite
party, on the other hand, supported the impugned judgment and
contended that in the present case of this nature, the demand of
bribe, acceptance and recovery thereof are the three essential
ingredients to establish the charge. He further submitted that the
stand of the opposite party in the learned trial Court was that he
had received the amount towards sale of an old TV and since
acceptance and recovery were admitted by the opposite party,
his hand wash is also of no consequence. Learned counsel further
submitted that the only question that needs careful scrutiny is as
to whether the opposite party demanded the amount as bribe or
he received the same towards sale consideration for the TV.
Learned counsel for the opposite party further submitted that
demand is the sine-qua-non in a prosecution under sections 7
and 13(1)(d) of the Act. According to him, since the informant
was not examined, the allegation relating to demand of bribe on
03.06.2005 was not proved and therefore, the only thing remains
to be seen as to whether the opposite party demanded the bribe
on 06.06.2005 at the time of trap. Placing reliance on the
evidence of D.W.1, it is argued that the learned trial Court rightly
accepted the defence plea.
8. In the case at hand, the acceptance of Rs.6,000/- by
the opposite party from the informant (who is dead) is not
disputed. It is also not disputed that there was recovery of
Rs.6,000/- from the opposite party. The only issue that arises for
consideration is whether such amount was demanded by the
opposite party from the informant as bribe for processing the
arrear pension bill of the father in-law of the informant as per the
prosecution case and it was paid on the date of trap or the
amount in question was the sale price of old T.V. as per the
defence plea.
Now, let me analyze the demand of bribe as stated
by the shadow witness (P.W.8). In his deposition, he has stated
that at the time of trap when the opposite party came to the
spot, the informant asked him to process the pension paper and
the opposite party demanded the money and the informant gave
the money. The conversation between the informant and the
opposite party was in Hindi as stated by P.W.8 who has not
spoken about the exact words used during such conversation.
The evidence of P.W.8 that when the opposite party came in a
motor cycle, the informant asked him to process the pension
papers is not corroborated by P.W.7 and P.W.9, though both of
them stated about the demand. Section 60 of the Evidence Act
mandates that oral evidence must be direct and if it refers to a
fact which could be heard, it must be the evidence of the witness
who says he heard it. Therefore, what is admissible in evidence is
the exact words heard by P.W.8 during the conversation and not
the opinion formed by him or inference drawn by him from the
said conversation. The exact words uttered were required to be
brought on record clearly, otherwise it is difficult to accept the
demand part particularly when the informant could not be
examined on account of his death. In my humble view, demand
appears to be in consonance with the defence plea that the
opposite party was due to get Rs.6,000/- from the informant
towards the sale amount of the T.V., which has been proved
through D.W.1. Thus, in this case demand of bribe is not proved.
From the evidence of Tersa Oram (P.W.11), it does
not appear that she had entrusted the informant to look after her
pension matters rather she stated to have given one document to
her son for such purpose. There is also no clinching material on
record that any work relating to the pension of Tersa Oram
(P.W.11) was pending with the opposite party at the time of
alleged occurrence rather as per the evidence of P.W.1, the file
was passed by him to the Asst. Commissioner for taking further
action. Therefore, no work was pending at the level of opposite
party to make a demand of bribe rather the available
circumstances appearing on record negatives the theory of
demand of bribe.
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, to
determine 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. (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, State of Kerala -Vrs.- C.P. Rao reported in
(2011) 6 Supreme Court Cases 450).
The factual scenario in the case of Vinod Kumar
(supra), reliance on which was placed by the learned Special
Public Prosecutor is different than the present case. The Hon'ble
Supreme Court in that case held that the prosecution proved the
demand, acceptance and recovery of the amount, which is not
the case here.
9. Law is well settled as held in case of Babu and
others -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 findings of fact
recorded by a Court can be said to be perverse, if the findings
are arrived at by ignoring or excluding relevant materials on
record or by taking into consideration irrelevant/inadmissible
materials. The finding can also be said to be perverse, if it is
against the weight of evidence, or if the finding outrageously
defies logic so as to suffer from the vice of irrationality.
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 and others -Vrs.- State of
Karnataka and others 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."
10. After going through the impugned judgment and
order of acquittal passed by the learned trial Court, it seems that
the learned Court has passed a reasoned judgment after proper
appreciation of the evidence and 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 petitioner Republic of India 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 16th February 2022/PKSahoo
