Orissa High Court
Rajeev Ranjan vs Republic Of India on 9 November, 2022
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No. 327 of 2016
From the judgment and order dated 18.06.2016 passed by the
Special Judge (C.B.I.), Court No.IV, Bhubaneswar in T.R. Case
No. 16 of 2012.
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Rajeev Ranjan ......... Appellant
-Versus-
Republic of India ......... Respondent
For Appellant: - Mr. Smruti Ranjan Mohapatra
Advocate
For Respondent: - Mr. Sarthak Nayak
Special Public Prosecutor
(C.B.I.)
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P R E S E N T:
THE HONOURABLE MR. JUSTICE S.K. SAHOO
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Date of Judgment: 09.11.2022
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S.K. SAHOO, J. The appellant Rajeev Ranjan faced trial in the Court
of learned Special Judge (C.B.I.), Court No. IV, Bhubaneswar in
T.R. Case No. 16 of 2012 for offences punishable under section 7
and section 13(2) read with section 13(1)(d) of the Prevention of
Corruption Act, 1988 (hereafter "1988 Act") on the accusation
that on 09.03.2012 he being a public servant functioning as Tax
// 2 //
Assistant, Ward No.4, Income Tax Office, Ayakar Bhawan,
Rourkela demanded Rs.8,000/- (rupees eight thousand only)
from the complainant Manoranjan Mishra (P.W.11) in the office
of Income Tax, Udit Nagar, Rourkela for processing the refund
claim of the income tax assessee Smt. Sudaramani Singh
(P.W.5) for the year 2010-11 (Assessment Year 2011-12) and
accepted the said amount of Rs.8,000/- on 12.03.2012 as
gratification other than legal remuneration for the above
purpose.
The learned trial Court vide impugned judgment and
order dated 18.06.2016 found the appellant guilty of the
offences charged and sentenced him to undergo rigorous
imprisonment for six months and to pay a fine of Rs.5,000/-
(rupees five thousand), in default, to undergo rigorous
imprisonment for one month for the offence under section 7 of
the 1988 Act and to undergo rigorous imprisonment for one year
and to pay a fine of Rs.10,000/- (rupees ten thousand), in
default, to undergo rigorous imprisonment for two months for
the offence under section 13(2) read with section 13(1)(d) of the
1988 Act with a direction that both the sentences shall run
concurrently.
// 3 //
2. P.W.11 lodged the written report before the
Superintendent of Police, C.B.I., Bhubaneswar through D.S.P.,
C.B.I., Rourkela on 10.03.2012 stating therein that he submitted
the I.T. return for the year 2011-12 of P.W.5 Smt. Sundarmani
Singh, who was closely known to him at Income Tax Office, Ward
No.4, Rourkela and a sum of Rs.17,862/- was claimed in that
return as refund claim. On 09.03.2012 at about 3.00 p.m., he
met the appellant in his office in Ward No.4 and asked about the
refund claim. The appellant told him that on payment of
Rs.8,000/- (rupees eight thousand) to him, he would process the
file and send it to the Income Tax Officer. When P.W.11 asked
the appellant as to why he would give so much of money, the
appellant told him that unless such amount is paid, refund would
not be given. The appellant then asked P.W.11 to give
Rs.8,000/- (rupees eight thousand) to him on 12.03.2012 in the
morning hours. P.W.11 stated in his report to take suitable
action against the appellant for making such illegal demand.
The written report was received from P.W.11 at
Rourkela C.B.I. Unit Office and forwarded to the office of
Superintendent of Police, C.B.I., Bhubaneswar where on
11.03.2012 Mr. M.S. Khan, Superintendent of Police in-charge,
C.B.I. registered R.C. No.2(A) of 2012 treating the written report
// 4 //
as F.I.R. (Ext.24) for commission of offence under section 7 of
1988 Act against the appellant and entrusted the case to P.W.13
Sachidananda Ratha, Inspector of police, C.B.I., Bhubaneswar
for investigation.
P.W.13 decided to lay a trap on the appellant and
requested D.S.P., C.B.I., Rourkela to arrange official witnesses to
act as witnesses during trap. P.W.13 instructed P.W.11 to report
him at C.B.I. Office, Rourkela on 12.03.2012 at about 10 a.m.
with the money which he was intending to give to the appellant.
As per arrangement, the trap party members assembled at
C.B.I. Unit Office, Rourkela on 12.03.2012 at 10 a.m. P.W.6
Manas Kumar Pati and P.W.10 Brundaban Pradhan, the
Inspectors of Vigilance, SAIL, Rourkela Steel Plant were also
reported for the purpose of witnessing the trap proceeding.
P.W.11 also reported at time as per previous instruction with an
amount of Rs.8,000/- (rupees eight thousand) in the form of five
numbers of Rs.1,000/- Government Currency notes (for short
"GC notes") and six numbers of Rs.500/- GC notes which were to
be used as trap money. P.W.11 was introduced to the trap party
members by P.W.13. The written report of P.W.11 which was
treated as F.I.R. was shown to the witnesses P.W.6 and P.W.10
who went through the same and put some questions to P.W.11
// 5 //
and was satisfied regarding the genuineness of the report.
Solution of sodium carbonate and water was prepared in a clean
glass tumbler which was colourless. The GC notes were treated
with phenolphthalein powder. P.W.10 was asked to handle the
said GC notes and then dip fingers of both the hands in the
prepared solution which turned pink. The hand wash of P.W.10
was preserved in a clean glass bottle (M.O.I) and properly
sealed, labeled and marked as 'D' and the trap party members
signed the same. The tainted GC notes of Rs.8,000/- were kept
in the left hand side shirt pocket of P.W.11 and instruction was
given to him to handover the money to the appellant only on his
demand. A pre-trap memorandum (Ext.12) was prepared at the
spot in which all the witnesses signed. It was decided that
P.W.11 along with P.W.6 would proceed to the Income Tax Office
in a motor cycle followed by other team members. P.W.6 was
instructed to act as overhearing witness and give signal to the
trap party members after acceptance of tainted money by the
appellant by brushing his hairs with fingers.
It is the further prosecution case that the trap party
members left the C.B.I. office at 10.50 a.m. and reached near
Ayakar Bhavan, Udit Nagar, Rourkela at 11.15 a.m. and by that
time, P.W.11 along with P.W.6 had already reached there.
// 6 //
P.W.11 called the appellant over mobile phone and on getting his
call, the appellant told him to wait outside. By that time, rest of
trap party members had taken their positions in a scattered
manner in the Ayakar Bhavan premises nearer to the place
where P.W.11 was standing. After few minutes, the appellant
came out of the office building and came near P.W.11. P.W.11
asked the appellant about the refund claim of P.W.5 Sudaramani
Singh. The appellant enquired from P.W.11 as to whether he has
brought the amount as was told to him on 09.03.2012. P.W.11
replied in the affirmative and the appellant stretched his right
hand towards P.W.11 and the latter took out the tainted GC
notes of Rs.8,000/- (rupees eight thousand) from his left side
shirt pocket and handed it over to the appellant, who accepted it
by his right hand, counted the same by both hands and then
kept the same in his left hand side pant pocket. The appellant
told P.W.11 that he would process the matter soon and saying
so, he went inside his office. P.W.11 gave pre-arranged signal to
the trap team members and on getting such signal, Investigating
Officer (P.W.13) rushed towards the Income Tax Office building
along with the team members including P.W.11 and both the
witnesses. The appellant entered the office building and went
inside the office room of I.T.O., Ward No.4 and the trap team
// 7 //
members also went inside the said room by following him. After
entering into the office room of the I.T.O., P.W.13 introduced
himself as well as other members of the trap team to the
appellant and asked for his identity. Then the appellant identified
himself as Rajeev Ranjan, Tax Assistant, Income Tax, Ward
No.4, Income Tax Office, Rourkela. When P.W.13 challenged
appellant as to why he demanded and accepted the bribe from
P.W.11, the appellant fumbled and told that he had not
demanded the amount, but accepted the same when given by
P.W.11 on his own. Being further questioned, the appellant
admitted that the IT Return of Sundaramani Singh (P.W.5) was
submitted by P.W.11 on 08.09.2011 and the same was pending
for processing. Hand washes of both the hands of the appellant
were taken in sodium carbonate solution separately which was
prepared then and there and the colour of the solution changed
to pink which were collected in clean glass tumblers vide M.O.II
and M.O.III. On being asked, the appellant took out the tainted
GC notes from his left side front pant pocket and kept the same
on the table. On being instructed by P.W.13, P.W.10 compared
the numbers of the GC notes with the numbers mentioned in the
pre-trap memorandum and on comparison, the same tallied.
Then those GC notes were kept in an envelope vide M.O.IV and
// 8 //
duly sealed and signed by the trap party members. The inner
side of the left hand side front pant pocket of the appellant was
washed in freshly prepared solution of sodium carbonate with
water, upon which colour of the said solution turned to pink and
the said pink colour solution was preserved separately in a clean
and dry bottle vide M.O.V with proper seal and signed by the
trap party members.
The appellant was arrested for demanding and
accepting illegal gratification from the complainant (P.W.11) and
arrest memo was prepared. Post-trap memorandum (Ext.15)
was also prepared wherein P.W.13 and others put their
signatures. The rough sketch map (Ext.14) of the place of
occurrence was prepared and the refund claim income tax return
of P.W.5 for the assessment Year 2011-12 was seized as per
seizure list (Ext.16) on being produced by the appellant. The
refund claim income tax return of P.W.5 was given in the zima of
K.C. Barik (P.W.8), the I.T.O. as per zimanama Ext.20. Other
relevant documents were seized from the Income Tax Office,
Rourkela in presence of witnesses. The residential house of the
appellant was searched and search list (Ext.18) was prepared.
The appellant was forwarded to the Court. As per the instruction
of S.P., C.B.I., Bhubaneswar, P.W.13 handed over the charge of
// 9 //
investigation to Sri S.B. Mishra (P.W.14) who received C.F.S.L.
Report, sanction order from the Asst. Commissioner of Income
Tax, seized some documents and on completion of investigation,
he submitted the charge sheet against the appellant on
11.07.2012 under section 7 and section 13(2) read with section
13(1)(d) of 1988 Act.
3. The defence plea of the appellant is one of denial and
in his statement recorded under section 313 of Cr.P.C., he stated
that prior to the alleged occurrence, one Bibek Dasgupta
(hereafter "B.D. Gupta") had taken Rs.10,000/- (rupees ten
thousand) as loan from him and as the said loan amount was not
repaid to him, there was misunderstanding and ill-feeling
between him and B.D. Gupta. At the instance of B.D. Gupta,
P.W.5, the assessee of ward No.1, resident of Chhend, filed IT
return personally showing her address as Koel Nagar, C/o. B.D.
Gupta. P.W.11 was a land broker and he was set up by B.D.
Gupta to file a false F.I.R. against him. Further, it is pleaded that
P.W.11 called him on 12.03.2012 over phone to take back a part
of the loan refund amount stating that the same had been sent
by B.D. Gupta and accordingly, he came out of the office and
P.W.11 handover the tainted money stating that the same had
been sent by B.D. Gupta towards part repayment of the loan
// 10 //
amount. It is further pleaded that neither the appellant had ever
demanded any amount to process the file of P.W.5 nor had
accepted the amount knowing it as illegal gratification and no
work of the assessee (P.W.5) was pending with him at that time
as he had already handed over the income tax return file of
P.W.5 to the I.T.O. and that the accusation labelled against him
are false and fabricated.
Prosecution witnesses:
4. In order to prove its case, the prosecution examined
fourteen witnesses.
P.W.1 Amulya Kumar Patjoshi was the Branch
Manager, Panposh Branch, Rourkela from May 2008 to May
2012, who stated that he had issued Form-16A (Ext.1) regarding
the annual tax payable in respect of income of P.W.5 for the
financial year 2010-11 on 30.04.2011 and P.W.5 was allotted
agent code bearing No.0114259C and P.W.5 had total income of
Rs.1,78,620.99 (rupees one lakh seventy eight thousand six
hundred twenty and ninety nine paise) and total tax of
Rs.17,862/- (rupees seventeen thousand eight hundred sixty
two) was deducted towards income tax.
P.W.2 Madhusudan Nayak was the Office
Superintendent in the Office of Joint Commissioner of Income
// 11 //
Tax, Rourkela from July 2006 to April 2013 and also a seizure
witness. He stated that the appellant was posted as Tax
Assistant in the Office of the Additional Commissioner of Income
Tax, Rourkela Range, Rourkela as per the order vide Ext.6 and
he was allotted the duty for Ward No.4, Rourkela vide order
Ext.7 for processing the income tax returns.
P.W.3 Asutosh Pradhan was the Asst. Commissioner
in the Office of Commissioner of Income Tax, Sambalpur and he
was the sanctioning authority who accorded sanction for the
prosecution of the appellant vide sanction order Ext.8.
P.W.4 Paresh Kumar Das was working as Tax
Assistant, Office of Income Tax Officer, Ward No.4, Rourkela. He
stated that his duty at that time was to receive the returns filed
by the assessees and to make entries in the I.T. Return Register
and the duty of the appellant was to receive the returns and
process the same. He further stated that the return vide Ext.9
was received by the appellant and the entry relating to the
return (Ext.9) was made in the register (Ext.10) at sl. no.2217
at page 142 on 08.09.2011 by him (P.W.4). He further stated
that it takes about two to three months for processing the
matter relating to return of refund and till 12.03.2012 no refund
was paid in respect of income tax return vide Ext.9.
// 12 //
P.W.5 Smt. Sundaramani Singh was working as L.I.C.
agent since October 2004 and she was also an income tax
assessee. She stated that she had got no source of income
except her income as L.I.C. agent and P.W.11 told her on
09.03.2012 that unless she gave Rs.8,000/- (rupees eight
thousand) to the appellant, who was working as a staff in the
Income Tax Office, she would not get income tax refund. She
further stated that she told P.W.11 that she would not give any
money and if P.W.11 wanted, he could file a complaint and
thereafter she had not told him anything else to P.W.11.
P.W.6 Manas Kumar Pati was working as Inspector,
Vigilance, RSP, Rourkela and he was a member of the trap party
who stated about the pre-trap preparation report. He stated that
he accompanied P.W.11 to the office of the appellant by
motorcycle and P.W.11 contacted the appellant over phone who
asked P.W.11 to wait for sometime as he was coming out of his
office. He further stated that when the appellant came out of the
office, P.W.11 wished him and asked him about the
position/status of the matter regarding income tax refund of
P.W.5 and the appellant asked P.W.11 as to whether he had
brought as per the previous discussion and P.W.11 nodded his
head. He further stated that the appellant showed his right hand
// 13 //
and P.W.11 brought out the tainted GC Notes in question from
his left side shirt pocket and handed over the same to the
appellant and the appellant took the GC Notes by his right hand,
counted the same by both the hands and kept the same in his
left side pant pocket and the appellant told P.W.11 that he would
process the matter as soon as possible and went inside his office.
He further stated about the hand wash of the appellant and his
pant pocket wash changing its colour when taken in solution to
pink so also preparation of the post-trap memorandum and
seizure of one Nokia mobile telephone set with two SIM cards
under seizure list Ext.13. He further stated about the seizure of
the original income tax return document of P.W.5 for the
assessment year 2011-12 on production by the appellant in the
said office as per seizure list Ext.16.
P.W.7 Dinesh Kumar Pradhan was the Nodal Officer,
Bharti Airtel Limited, Bhubaneswar, who proved the call details
of the mobile No.9556756160 as per Ext.19.
P.W.8 Krushna Chandra Barik was working as Income
Tax Officer, Ward No.4, Rourkela. He stated that on 12.03.2012
at the time of trap of the appellant by the C.B.I. team, he was
present in the office room of the Joint Commissioner of Income
Tax, Rourkela and at about 1 p.m., he was called by the C.B.I.
// 14 //
Officer to his office room and one document pertaining to the
income tax return of P.W.5 for the assessment year 2011-12 was
given in his zima by the C.B.I. Inspector as per zimanama
(Ext.20). He further stated that the C.B.I. Inspector asked him
the reason as to why refund was not made in favour of the
concerned income tax assessee to which he replied that the
appellant had not placed the said matter before him after
processing and it was the duty of the appellant as Tax Assistant
to process the file in connection with refund of income tax.
P.W.9 AVK Naidu was the Legal, Regulatory and
Nodal Head for Idea Cellular Limited, Bhubaneswar for the State
of Odisha. He stated that on the requisition of the C.B.I.,
Bhubaneswar, he had given the call details in respect of mobile
no.9090905372 belonging to the services of Idea Cellular Limited
for the date 12.03.2012 in the C.D.R. dated 03.05.2012 and the
said call was made from mobile phone no.9090905372 to mobile
phone no.9556756160 and the duration of the said call was for
33 seconds.
P.W.10 Brundaban Pradhan was the Vigilance
Inspector, Rourkela Steel Plant, Rourkela and he was a member
of the trap party who was present at the time of preparation of
the trap. He stated about the acceptance of tainted GC note by
// 15 //
the appellant from P.W.11 in the Income Tax Office building and
keeping the same in his left side pant pocket. He further stated
about the hand wash of the appellant and his pant pocket wash
changing its colour when taken in solution. He further stated that
the appellant was arrested at about 12.30 p.m. and the original
income tax return document of P.W.5 was handed over by the
appellant to P.W.13 which was seized vide seizure list Ext.16. He
further stated about the preparation of the post-trap
memorandum (Ext.15) and seizure of one mobile under seizure
list Ext.13.
P.W.11 Manoranjan Mishra is the complainant in the
case and he has stated in detail relating to demand of bribe by
the appellant, lodging of written report vide Ext.24 by him,
preparation for the trap, demand and acceptance of bribe money
by the appellant and assurance given by the appellant to do the
work. He was declared hostile by the prosecution.
P.W.12 Binod Bhagaban Ramteke was the Senior
Scientific Officer in C.F.S.L., New Delhi from February 2005 to
October 2011 who proved the chemical examination report
marked as Ext.25.
P.W.13 Sachidananda Rath was the Inspector of
Police, C.B.I., Bhubaneswar who laid the trap and he is also the
// 16 //
Investigating Officer. He stated that as per the instruction of the
Superintendent of Police, C.B.I., Bhubaneswar, he handed over
the investigation of the case to Sri S.B. Mishra (P.W.14),
Inspector, C.B.I., Rourkela Unit for further investigation on
14.03.2012.
P.W.14 Subhransu Bhusan Mishra was the Inspector
of Police, C.B.I., Rourkela Unit who took over investigation of the
case from P.W.13 as per instruction of the Superintendent of
Police, C.B.I., Bhubaneswar and on completion of investigation,
he submitted charge sheet against the appellant.
Documents exihibited by prosecution:
5. The prosecution exhibited twenty six documents.
Ext.1 is the Form No.16-A regarding Annual Tax Payable, Ext.2 is
the seizure list dated 12.03.2012, Ext.3 is the attendance
register starting from 01.12.2011 to 12.03.2012, Ext.4 is the
seizure list dated 18.04.2012, Ext.5 is the transfer order
No.11/2008 dated 30.04.2008, Ext.6 is the office order dated
08.06.2011 of Joint Commissioner, Ext.7 is the office order,
Ext.8 is the sanction order, Ext.9 is the certified copy of IT
Return of P.W.5, Ext.10 is the IT Return Register for the
assessment year 2011-12, Ext.11 is the authorization letter,
Ext.12 is the pre-trap memorandum, Ext.13 is the search memo,
// 17 //
Ext.14 is the spot map, Ext.15 is the post trap memorandum
(five pages), Ext.16 is the seizure list, Exts.17 and 18 are the
search lists, Ext.19 is the call details of the mobile phone, Ext.20
is the zimanama, Ext.21 is the seizure list dated 12.04.2012,
Ext.22 is the letter dated 16.04.2012, Ext.23 is the call details
report, Ext.24 is the F.I.R., Ext.25 is the Chemical Examination
Report and Ext.26 is the seizure list.
Material Objects proved by prosecution:
6. Six material objects were proved by the prosecution.
M.O.I is the solution of sodium carbonate with water bottle
(Mark-D), M.O.II is the one solution of sodium carbonate with
water bottle (Mark-R), M.O.III is the another solution of sodium
carbonate with water bottle (Mark-L), M.O.IV is the envelope
containing tainted money (sealed), M.O.V is the pant pocket
wash (Mark-P) and M.O.VI is the envelope containing the pant of
the appellant.
No witness was examined on behalf of the defence.
7. The learned trial Court formulated the following
points for determination:-
(i) Whether on 09.03.2012 in the office room of
Income Tax Office, Udit Nagar, Rourkela, the accused
being a public servant functioning as Tax Assistant,
// 18 //
Ward No.4, Income Tax Office, Ayakar Bhavan,
Rourkela, had demanded Rs.8,000/- (rupees eight
thousand) from the complainant for processing the
refund claim of the income tax assessee Smt.
Sundaramani Singh for the financial year 2010-11
(Assessment Year 2011-12) and accepted the said
amount of Rs.8,000/- on 12.03.2012 as gratification
other than legal remuneration for the above purpose,
as alleged?
(ii) Whether on the aforesaid date and place the
accused being a public servant functioning in the
above capacity, by corrupt and illegal means and/or
by otherwise abusing his official position as such
public servant, obtained for himself pecuniary
advantage to the tune of Rs.8,000/- (rupees eight
thousand) from the complainant for processing the
income tax refund claim of Smt. Sundaramani Singh
for the financial year 2010-11 (Assessment Year
2011-12), as alleged?
8. The learned trial Court after assessing the evidence
on record has been pleased to hold that nothing substantial has
been brought out during cross-examination of P.W.12 to show
that the tests conducted by him, are not full proof or not reliable
and his evidence corroborates the oral evidence of prosecution
witnesses regarding the trap in question. It was further held that
the prosecution has clearly proved that the appellant had
// 19 //
voluntarily and consciously accepted the tainted currency notes
from the complainant. It was further held that the evidence on
record not only proved the demand of bribe money but also the
acceptance of bribe money. It was further held that it is legally
justified to draw a presumption under section 20 of the 1988 Act.
The non-examination of B.D. Gupta by the prosecution, does not
in any way affect its case as he was not a material witness for
the prosecution. The defence has signally failed to prove its plea
in the standard of preponderance of probability regarding refund
of any loan amount by B.D. Gupta to the appellant that too
through the complainant on the relevant date. It was further
held that the appellant had demanded and accepted bribe of
Rs.8000/- (rupees eight thousand) from the complainant on
12.03.2012 for sending the application for payment of income
tax refund claim amount of P.W.5. The evidence of P.Ws.6, 10,
11 and 13 has substantially remained unshaken. The
documentary evidence on record, such as F.I.R., pre-trap
memorandum, post-trap memorandum, seizure lists, C.E. report
and hand wash and pant pocket wash of the appellant turning to
pink colour lend sufficient corroboration to their version. The plea
of the appellant that he received the money sent by B.D. Gupta
towards refund of loan amount though the complainant is
// 20 //
unbelievable and not acceptable. The oral as well as
documentary and circumstantial evidence clearly proved beyond
reasonable doubt that the appellant demanded and accepted
illegal gratification of Rs.8000/- (rupees eight thousand) from
the complainant (P.W.11) for sending the application for
payment of income tax refund claim amount of P.W.5 by abusing
his official position as a public servant and accordingly, found the
appellant guilty of the offences charged.
9. Mr. S.R. Mohapatra, learned counsel for the appellant
contended that the demand of illegal gratification is sine qua non
for constituting offence under the 1988 Act and in the present
case, the prosecution has miserably failed to prove the demand
of illegal gratification made by the appellant to the complainant
(P.W.11) to process the file. The defence plea taken has rather
been proved by preponderance of probability regarding
acceptance of money by the appellant towards part repayment of
loan amount sent by B.D. Gupta (house owner of P.W.5) through
P.W.11 (complainant) and the said amount is other than as a
motive or reward referred to under section 7 of the P.C. Act. The
appellant need not to prove his case beyond a reasonable doubt
and he could rebut it either through cross-examination of the
witnesses or by adducing reliable evidence and he can succeed in
// 21 //
proving his case by way of preponderance of probabilities. He
further contended that in a case of bribery, mere recovery of
money divorced from the circumstances under which it is paid is
not sufficient to convict the appellant particularly when the
evidence of P.W.11 is not reliable and trustworthy in view of his
inconsistent statements. He further contended that since there
was no work of the complainant/decoy (P.W.11) pending with the
appellant, the version of the complainant with regard to demand
of illegal gratification is not believable. He further submitted that
filing of Ext.9 personally by P.W.11 on 08.09.2011 and thereby
meeting the appellant on 09.03.2012 and prior to 12.03.2012 is
a doubtful feature. The sanction order vide Ext.8 is a defective
one and P.W.3 had no authority to accord sanction for
prosecution of the appellant. Ad finem, it is argued that it is a fit
case where benefit of doubt should be extended in favour of the
appellant. He placed reliance in the cases of Suraj Mal -Vrs.-
The State reported in A.I.R. 1979 S.C. 1498, Sanatan Dash
-Vrs.- State of Odisha (Vig.) reported in (2021) 84 Orissa
Criminal Reports 561, Man Singh -Vrs.- Delhi
Administration reported in A.I.R. 1979 S.C. 1455, K.
Shanthamma -Vrs.- State of Telangana reported in (2022)
86 Orissa Criminal Reports (SC) 345, C.M. Girish Babu -
// 22 //
Vrs.- CBI reported in (2009) 43 Orissa Criminal Reports
(SC) 48, Sidhartha Kumar Nath -Vrs.- State of Orissa
(Vig.) reported in (2017) 68 Orissa Criminal Reports 510,
B. Jayaraj -Vrs.- State of A.P. reported in (2014) 58 Orissa
Criminal Reports (SC) 175, Punjabrao -Vrs.- State of
Maharashtra reported in A.I.R. 2002 S.C. 486, Debananda
Das -Vrs.- State of Orissa reported in (2011) 50 Orissa
Criminal Reports 591, Niranjan Bharati -Vrs.- State of
Orissa reported in (2003) 26 Orissa Criminal Reports 274,
State of Maharastra -Vrs.- Dnyaneshwar Laxman Rao
Wankhede reported in (2009) 44 Orissa Criminal Reports
(SC) 425, Shyam Sundar Prusty -Vrs.- State of Orissa
reported in (2018) 70 Orissa Criminal Reports 733, Mohd.
Iqbal Ahmed -Vrs.- State of Andhra Pradesh reported in
A.I.R. 1979 S.C. 677, N. Vijay Kumar -Vrs.- State of Tamil
Nadu reported in (2021) 82 Orissa Criminal Reports (SC)
67 and Khaleel Ahmed -Vrs.- State of Karnataka reported
in (2015) 16 S.C.C. 350.
Mr. Sarthak Nayak, learned Special Public Prosecutor,
C.B.I. on the other hand supported the impugned judgment and
contended that even though the decoy has been declared hostile
by the prosecution for not supporting its case fully, but the
// 23 //
evidence of other witnesses particularly the circumstances
established by the prosecution are sufficient to hold the appellant
guilty of the offences charged. According to Mr. Nayak, in the
case in hand, the appellant has not disputed the acceptance and
recovery of money in question and when the defence plea
regarding acceptance of part repayment of the loan dues sent by
B.D. Gupta through the decoy (P.W.11) on the date of trap is not
acceptable, it otherwise proves the acceptance of bribe money
on demand made by the appellant for processing the refund
claim in I.T. return of P.W.5. He placed reliance in the cases of
Malti Sahu -Vrs.- Rahul reported in 2022 SCC OnLine SC
821, State of U.P. -Vrs.- Ramesh Prasad Mishra reported in
A.I.R. 1996 S.C. 2766, Koli Lakhmanbhai Chanabhai -Vrs.-
State of Gujarat reported in A.I.R. 2000 S.C. 210, Rohtash
Kumar -Vrs.- State of Haryana reported in (2013) 14
S.C.C. 434 and Himanshu -Vrs.- State of NCT of Delhi
reported in (2011) 1 Crimes 157 (SC).
Gravamen of offence under sections 7 and 13(1)(d)(i) &
(ii) of 1988 Act:
10. Law is well settled that mere receipt of money by the
accused is not sufficient to fasten his guilt, in the absence of any
evidence with regard to demand and acceptance of the same as
// 24 //
illegal gratification. In order to constitute an offence under
section 7 of 1988 Act, proof of demand is a sine qua non. (Ref:
V. Sejappa -Vrs.- The State reported in (2016) 64 Orissa
Criminal Reports (SC) 364, B. Jayaraj (supra), K.
Shanthamma (supra), Sidhartha Kumar Nath (supra), N.
Vijay Kumar (supra)). 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. While invoking the
provision of section 20 of the 1988 Act, the Court is required to
consider the explanation offered by the accused, if any, only on
the touchstone of preponderance of probability and not on the
touchstone of proof beyond all reasonable doubt. For arriving at
the conclusion as to whether all the ingredients of the offence 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. The
standard of burden of proof on the accused vis-à-vis the
standard of burden of proof on the prosecution would differ. The
proof of demand of illegal gratification is the gravamen of the
// 25 //
offence under sections 7 and 13(1)(d)(i) and (ii) of 1988 Act and
in absence thereof, unmistakably the charge therefore, would
fail. 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. 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
accused of the offence under sections 7 or 13 of the Act would
not entail his conviction thereunder. 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.
(Ref: Satyananda Pani -Vrs.- State of Orissa (Vig.)
reported in (2017) 68 Orissa Criminal Reports 795,
Debananda Das (supra), Punjabrao (supra), Shyam Sundar
Prusty (supra), N.Vijay Kumar (supra), Dnyaneshwar
Laxman Rao Wankhede (supra)).
In case of Krishan Chander -Vrs.- State of Delhi
reported in (2016) 3 Supreme Court Cases 108, it is held
that the demand for the bribe money is sine qua non to convict
// 26 //
the accused for the offences punishable under sections 7 and
13(1)(d) read with section 13(2) of the 1988 Act. In case of
P. Satyanarayana Murthy -Vrs.- District Inspector of Police
reported in (2015) 10 Supreme Court Cases 152, it is held
that the proof of demand has been held to be an indispensable
essentiality and of permeating mandate for offences under
sections 7 and 13 of the Act. Qua section 20 of the Act, which
permits a presumption as envisaged therein, it has been held
that while it is extendable only to an offence under section 7 and
not to those under section 13(1)(d)(i) & (ii) of the Act, it is
contingent as well on the proof of acceptance of illegal
gratification for doing or forbearing to do any official act. Such
proof of acceptance of illegal gratification, it was emphasized,
could follow only if there was proof of demand. Axiomatically, it
was held that in absence of proof of demand, such legal
presumption under section 20 of 1988 Act would also not arise.
In the case of C.M. Girish Babu (supra), it is held that it is well
settled that the presumption to be drawn under section 20 of
1988 Act is not an inviolable one. The accused charged with the
offence could rebut it either through the cross-examination of
the witnesses cited against him or by adducing reliable evidence.
If the accused fails to disprove the presumption, the same would
// 27 //
stick and then it can be held by the Court that the prosecution
has proved that the accused received the amount towards
gratification. It is equally well settled that the burden of proof
placed upon the accused person against whom the presumption
is made under section 20 of 1988 Act is not akin to that of
burden placed on the prosecution to prove the case beyond a
reasonable doubt. In the case of Khaleel Ahmed (supra), it is
held that the presumption raised under section 20 for the offence
under section 7 is concerned, it is the settled law that the
presumption raised under section 20 is a rebuttable
presumption, and that the burden placed on the accused for
rebutting the presumption is one of preponderance of
probabilities.
11. Adverting to the contentions raised by the learned
counsel for the respective parties, since the appellant has not
disputed the 'acceptance' and 'recovery' of the money in
question, let me now carefully examine the evidence on record
relating to the 'demand' aspect.
Demand prior to the date of trap:
11-A. P.W.11, the decoy and the complainant of the case
when was asked by the learned Public Prosecutor about the
// 28 //
appellant, has specifically stated that he did not know the
accused who was present in the dock.
In the chief examination, P.W.11 has stated that he
submitted the income tax return file vide Ext.9 of P.W.5 on
08.09.2011 to one Rajeev Ranjan at Income Tax Office, Ward
No.IV at Rourkela. He further stated that on 09.03.2012 when he
visited the said office and approached Rajeev Ranjan regarding
progress made for refund of income tax in favour of P.W.5, the
latter told him that the said work would be done after payment
of Rs.8,000/- (rupees eight thousand) within three days. He
further stated that as he was not willing to pay the amount to
Rajeev Ranjan, on 10.03.2012 he met D.S.P., C.B.I. Sri Kabi and
told him about the matter and Sri Kabi asked him to give a
written report and accordingly, he submitted the F.I.R. (Ext.24).
He further stated about the preparation for the trap on
12.03.2012 at C.B.I. Office, Rourkela and after the same was
over, he along with the vigilance staff proceeded to the Income
Tax Office and he contacted Rajeev Ranjan over telephone, who
came out of the office building and asked him whether he had
brought the money to which he answered in the affirmative. He
further stated that he handed over the tainted GC notes of
Rs.8,000/- to Rajeev Ranjan who told him that the work would
// 29 //
be done. Rajeev Ranjan counted the GC notes in question, went
inside his office and then he gave pre-arranged signal to the rest
members of the CBI team, who came and caught hold of Rajeev
Ranjan.
P.W.11 was declared hostile by the prosecution under
section 154 of the Evidence Act and with the permission of the
Court, leading questions were put to him by the learned Public
Prosecutor in which he not only denied to have been examined
by the I.O., but also denied to have stated regarding giving any
statement made in connection with pre-trap demonstration and
that the tainted money of Rs.8,000/- was recovered in his
presence from the possession of the appellant and that the hand
wash of the appellant taken with sodium carbonate solution
changed its colour to pink. He denied the suggestion given by
the Public Prosecutor that he had been gained over by the
appellant and purposefully failed to identify the appellant in the
dock. The learned Public Prosecutor did not try to put any
specific question to P.W.11 as to whether the person who
demanded the alleged bribe to him and whose name he told to
be Rajeev Ranjan was the same person present in the dock or
somebody else. Thus, there is no substantive evidence that prior
// 30 //
to the date of trap, it is the appellant who had demanded
Rs.8,000/- from P.W.11.
In the cross-examination by the defence, P.W.11 has
stated that neither he has submitted his own income tax return
ever nor of any person and he had no knowledge or idea about
submission of income tax return. He further stated that he did
not know about the income tax return of P.W.5 and the financial
year and assessment year in respect of which the income tax
return of P.W.5 was required to be submitted and he did not
know about the gross income or net income of P.W.5 of any
particular year or specifically for the assessment year 2011-12.
He further stated that he could not say the amount of income tax
paid by P.W.5 for the assessment year 2011-12 and the amount
of money to which P.W.5 was entitled towards income tax
refund. He further stated that he could not read English
language.
P.W.5 has stated in her chief examination that she
had given the authorisation letter (Ext.11) in favour of P.W.11
authorising him to file her income tax return. She not only
proved her signature but also signature of P.W.11 on Ext.11.
However, in the cross-examination, she stated that she did not
have much acquaintance with P.W.11 and that she had given the
// 31 //
income tax return vide Ext.9 to B.D. Gupta for filing who was
looking after the same and she had also given Ext.11 to B.D.
Gupta and that she did not know as to who prepared Ext.11.
Therefore, the evidence of P.W.5 that she had issued the
authorisation letter (Ext.11) in favour of P.W.11 is not
consistent. Even P.W.11 has also stated that B.D. Gupta typed
Ext.11 by taking the help of somebody near the Court premises
at Udit Nagar of Rourkela and he had not submitted Ext.11 at
Income Tax Office and B.D. Gupta took Ext.11 from him after
obtaining his signature. Though P.W.14, the I.O. has stated that
he had received the authorisation letter Ext.11 from P.W.11, but
evidence of P.W.11 is completely silent about it. Such a vital
document was produced only at the time of submission of charge
sheet on 11.07.2012. The defence has suggested to P.W.14 that
as Ext.11 was not in existence prior to 11.07.2012, it was not
sent earlier.
Though P.W.5 stated that P.W.11 told her that unless
she gave Rs.8,000/- to the appellant, she would not get income
tax refund, but it has been proved through the I.O. (P.W.14)
that in her statement under section 161 Cr.P.C. recorded on
04.04.2012, P.W.5 had not stated that the P.W.11 had disclosed
before her that the appellant had demanded bribe of Rs.8,000/-
// 32 //
on 09.03.2012 and that unless the said payment was given to
the appellant, she would not get the income tax refund.
In view of the materials on record and particularly
the evidence given by P.W.11 in the cross-examination, his
evidence in the chief examination that he had submitted income
tax return file of P.W.5 to one Rajeev Ranjan is very difficult to
be accepted. Ext.9 nowhere discloses that it was submitted by
P.W.11 and even P.W.4, the Tax Assistant attached to the Office
of I.T.O., Ward no.4, Rourkela who was senior to the appellant
has stated that the return vide Ext.9 was personally filed by
P.W.5 in which she had furnished her address as C/o.- B.D.
Gupta. Thus, the evidence of P.W.11 regarding approaching
Rajeev Ranjan for refund of income tax of P.W.5, which led the
latter to make a demand of Rs.8,000/- (rupees eight thousand)
is very difficult to be accepted.
Law is well settled that the evidence of a hostile
witness can also be acted upon to the extent to which it supports
the prosecution version and the evidence of such witness cannot
be treated as washed off the record. It remains admissible in the
trial and there is no legal bar to base an order of conviction upon
his testimony if corroborated by other reliable evidence. It is for
the Judge of the fact to consider in each case whether as a result
// 33 //
of the cross-examination made by the Prosecutor with the leave
of the Court after the witness was declared hostile and also in
view of contradiction, the witness stands thoroughly discredited
or can still be believed in regard to a part of his testimony. If the
Judge finds that in the process, the credit of the witness has not
been completely shaken, he may, after reading and considering
the evidence of the said witness, accept in the light of other
evidence on record, that part of his testimony which he found to
be of creditworthy and act upon it. The portion of the evidence
which is consistent with the case of the prosecution or defence,
and are admissible in law can be used either by the prosecution
or by the defence. (Ref: Kili Lakhmanbhai Chanabhai -Vrs.-
State of Gujarat (supra), T. Shankar Prasad -Vrs.- State of
Andhra Pradesh : (2004) 3 Supreme Court Cases 753). In
the case of Malti Sahu (supra), it is held that as per the settled
position of law, even the evidence of a hostile witness can be
considered to the extent, it supports the case of the prosecution.
In the case of Ramesh Prasad Mishra (supra), it is held that it
is equally settled law that the evidence of a hostile witness would
not be totally rejected if spoken in favour of the prosecution or
accused, but it can be subjected to close scrutiny and that
portion of the evidence which is consistent with the case of the
// 34 //
prosecution or defence may be accepted. In the case of Rohtash
Kumar (supra), it is held that it is a settled legal proposition that
evidence of a prosecution witness cannot be rejected in toto,
merely because the prosecution chose to treat him as hostile and
cross examined him. The evidence of such witnesses cannot be
treated as effaced, or washed off the record altogether. The
same can be accepted to the extent that their version is found to
be dependable, upon a careful scrutiny thereof. In the case of
Himanshu (supra), it is held that the evidence of a hostile
witness remains the admissible evidence and it is open to the
Court to rely upon the dependable part of that evidence which is
found to be acceptable and duly corroborated by some other
reliable evidence available on record.
In view of the prevaricating and inconsistent
statement given by P.W.11 at different stages, it is very difficult
to accept him as a truthful and reliable witness and his evidence
becomes unworthy of credence. In the case of Suraj Mal
(supra), it is held that where witnesses make two inconsistent
statements in their evidence either at one stage or at two
stages, the testimony of such witnesses becomes unreliable and
unworthy of credence and in the absence of special
circumstances, no conviction can be based on the evidence of
// 35 //
such witnesses. Since the prosecution relies only upon the
version of P.W.11 regarding the demand aspect of Rs.8,000/-
(rupees eight thousand) prior to the date of trap, it cannot be
said that the same has been proved beyond all reasonable
doubt.
Demand on the date of trap:
11-B. Coming to the demand stated to have been made by
the appellant on the date of trap, the evidence of two witnesses
i.e. the decoy (P.W.11) and the overhearing witness (P.W.6) are
very relevant for the purpose.
P.W.11 has stated that when Rajeev Ranjan came
out of the office building on receipt of his phone call and asked
him if he had brought the money, he answered in the affirmative
and handed over the tainted GC notes of Rs.8,000/- (rupees
eight thousand) to him and Rajeev Ranjan told him that his work
would be done and he should leave that place. However, in the
cross-examination, he stated that as per instruction of B.D.
Gupta, he called Rajeev Ranjan over telephone and handed over
the money. He specifically stated that he had no discussion with
anybody thereafter and came back from that place.
P.W.6 stated that when the appellant came out of the
office, P.W.11 asked him about the status of income tax refund
// 36 //
matter of P.W.5 and then the appellant asked P.W.11 whether he
had brought as per the previous discussion made on 9th. Then
the appellant received the money and told P.W.11 that he would
process the matter as soon as possible.
Thus, there is difference in evidence as to what was
the exact conversation between P.W.11 and the appellant
outside the office. When as per the evidence of the T.L.O.
(P.W.13), it was decided at the pre-trap proceeding that after
reaching the Income Tax Office, P.W.11 would proceed to the
office of the appellant inside the office and P.W.6 would follow
him closely, it is not known why P.W.11 called the appellant
outside over phone and handed over the tainted money to him
outside and who had given instruction to him to do that and
when, after they left C.B.I. Office, Rourkela. It is very difficult to
accept that P.W.11 on his own deviated from the planning,
changed the place and the manner in which he had to hand over
the tainted money to the appellant. P.W.13, the T.L.O. has
stated that there was no specific instruction given by him to
P.W.11 to contact the appellant over telephone and to ask him to
come out of his office. P.W.10 who was also a member of trap
party has stated that P.W.11 was not asked to contact the
appellant by any particular mobile telephone number and the
// 37 //
telephone number of the appellant was not supplied to them.
There is nothing on record that the mobile phone number of the
appellant was available with P.W.11.
P.W.11 has not stated that it was P.W.6 who
accompanied him to the office of the appellant in a motor cycle
and overheard the conversation between himself and the
appellant and saw the transaction.
In view of the available materials on records, it is
very difficult to hold that the prosecution has successfully
established that on the date of trap also, there was demand
made by the appellant to P.W.11.
Whether any work was left with the appellant to make
demand :
12. P.W.4 Paresh Das was also a Tax Assistant who was
working with the appellant in the Office of I.T.O., Ward No.4,
Rourkela. He has stated that after receiving the I.T. returns on
any particular day, the concerned Tax Assistant makes a bundle
of the same and hands over the same to the I.T.O. on the same
day. He further stated that the I.T. return in question vide Ext.9
was also handed over to the I.T.O. Sri K.C. Barik (P.W.8) on the
same day. He further stated that the I.T.O. decides regarding
// 38 //
refund and the amount of the same to be refunded to the
concerned assessee.
In the case of Sanatan Dash (supra), it is held that
section 138 of the Indian Evidence Act, 1872 clearly states that
the re-examination shall be directed to the explanation of the
matters referred to in the cross-examination. Therefore, if any
ambiguity is cropped up during cross-examination of a witness or
a witness stated completely contrary to what he has deposed in
the chief-examination, it is nonetheless the duty of the
prosecution to make a prayer before the learned trial Court for
re-examination of such witness and to explain the matters. The
object is to give an opportunity to reconcile the discrepancies, if
any, between the statement made in the examination-in-chief
and cross-examination or to explain any statement inadvertently
made in cross-examination or to remove any ambiguity in the
deposition or suspicion cast on the evidence by cross-
examination. When P.W.4 stated in the cross-examination that
Ext.9 was handed over to P.W.8 on the same day, the learned
Public Prosecutor should have prayed for re-examination of
P.W.8 in view of the provision under section 138 of the Evidence
Act, which has not been done.
// 39 //
P.W.8 has stated that there was no fixed time for
processing the matter relating to income tax return in the year
2012 and that P.W.5 had not complained before him regarding
any delay in refund of the income tax to her. Though P.W.8 has
stated that it was the duty of the appellant as Tax Assistant to
process the file in connection with refund of income tax and
when the C.B.I. officer asked him the reason as to why refund
had not been made in favour of P.W.5, he told that the appellant
had not placed the said matter before him after processing, but
such statement of P.W.8 is contrary to the evidence of P.W.4
who has stated that Ext.9 was handed over to the P.W.8 on the
same day after its receipt. The seal of office of I.T.O., Ward - 4,
Rourkela - 12, Ayakar Bhawan, Rourkela dated 08.09.2011 is
very prominent on Ext.9 which was its receipt date. P.W.4 has
stated that Ext.9/1 is the endorsement and signature of P.W.8
whose signature and handwriting appeared in all the eleven
pages of the said return. As Ext.9 was seized under seizure list
Ext.16 on the date of trap (12.03.2012) itself and if it had not
been placed before P.W.8 after processing by the appellant as
stated by him, then how his signature appeared on Ext.9. Merely
because Ext.16 indicates that it was produced by the appellant, it
cannot be said that it was in his possession. P.W.8 was not in his
// 40 //
office when the seizure was effected at 12.50 p.m. and he was
present in the office room of the Joint Commissioner of Income
Tax, Rourkela and was called by C.B.I. Officer at 1 p.m. as
stated by P.W.8 himself. Therefore, mere production of Ext.9 by
the appellant for seizure in the absence of P.W.8 cannot be a
ground to hold that the appellant had deliberately not processed
Ext.9 and kept it with him to get the bribe amount from P.W.11.
In the case of Niranjan Bharati (supra), it is held
that there is no evidence as to on which date the demand was
raised by the appellant for payment of bribe and by the time trap
was laid, there was any work pending with the appellant and
therefore, there could not have been any occasion for the
appellant to demand as alleged.
Therefore, when the appellant as Tax Assistant had
no role in the refund of income tax to the assessee except
processing the same to the I.T.O. Sri K.C. Barik (P.W.8), which
he had already done as per the evidence of P.W.4, I am of the
humble view that there is substantial force in the contention of
the learned counsel for the appellant that no work was pending
with the appellant for which there was no occasion on his part to
raise any demand of bribe.
// 41 //
Defence plea:
13. At this stage, the defence plea is required to be
considered carefully. P.W.5 has stated that she was staying in
the house of B.D. Gupta, who had taken a loan of Rs.10,000/-
(rupees ten thousand) from Rajeev Ranjan and there was
misunderstanding between them as the loan amount was not
repaid by B.D. Gupta. P.W.11 has stated that he called Rajeev
Ranjan over telephone as per instruction of B.D. Gupta and the
latter told him to give money to the person who would come in
response to the telephone call and accordingly, he gave money
to the said person. P.W.11 specifically stated that B.D. Gupta
accompanied him to C.B.I. Office, Rourkela when he had gone
there to lodge the F.I.R. and he and B.D. Gupta discussed the
matter and as per the instruction of B.D. Gupta, he lodged the
F.I.R. Therefore, in view of the previous dispute between the
appellant and B.D. Gupta, there was every probability that the
allegation of demand as made in Ext.24 was not the version of
the complainant (P.W.11) but it was lodged as per the
instruction of B.D. Gupta.
It is not in dispute that an accused is not supposed to
establish his defence plea by proving it beyond reasonable doubt
like the prosecution but by preponderance of probability.
// 42 //
Inference of preponderance of probabilities can be drawn not
only from the materials brought on record by the parties but also
by reference to the circumstance upon which the accused relies.
The burden can be discharged by an accused adducing cogent
and reliable evidence which must appear to be believable or by
bringing out answers from the prosecution witnesses or showing
circumstances which might lead the Court to draw a different
inference. The prosecution cannot derive any advantage from the
falsity or other infirmities of the defence version, so long as it
does not discharge its initial burden of proving its case beyond
all reasonable doubt. If the defence version is incorrect, it does
not mean that the prosecution version is necessarily correct. The
prosecution must stand or fall on its own legs and it cannot
derive any strength from the weakness of the defence. A false
plea set up by the defence can at best be considered as an
additional circumstance against the accused provided that the
other evidence on record unfailingly point towards his guilt. In
the case of Man Singh (supra), while dealing with a case of
illegal gratification under section 5(1)(d) and 5(2) of the
Prevention of Corruption Act, 1947, Hon'ble Supreme Court held
that the accused is not required to prove his defence by strict
standard of proof of reasonable doubt but it is sufficient if he
// 43 //
offers an explanation or defence which is probable and once this
is done, presumption under section 4 of the Prevention of
Corruption Act, 1947 stands rebutted.
The learned trial Court seems to have not considered
the defence plea of the appellant on the touchstone of
preponderance of probability and held that the defence failed to
prove regarding refund of loan amount by B.D. Gupta to the
appellant through P.W.11 on the relevant date. However, in view
of the specific defence plea taken by the appellant and the
supporting evidence adduced by P.W.5 and P.W.11, it cannot be
said that such plea has not been proved by preponderance of
probability or it is an out and out false plea set up by the
defence. In my humble view, the appellant has discharged the
burden of proof placed on him based on preponderance of
probability and in that view of the matter, the presumption
raised under section 20 of 1988 Act has been successfully
rebutted.
Whether P.W.3 is the competent authority to accord
sanction for prosecution of appellant and Ext.8 is a valid
one:
14. The Office Superintendent in the office of the Joint
Commissioner of Income Tax, Rourkela was examined as P.W.2
// 44 //
and he has categorically stated in his cross-examination that the
Commissioner of Income Tax, Odisha, Bhubaneswar is the
appointing and removal authority of Tax Assistant. P.W.3 was
the Assistant Commissioner of Income Tax, Sambalpur who has
accorded sanction for prosecution vide Ext.8 and he has stated in
his cross-examination that he had not filed any document to
show that he was the removal authority of the appellant. P.W.8
has stated that the Chief Commissioner is the appointing and
removal authority for the Tax Assistant.
In the case of Mohd. Iqbal Ahmed (supra), it is
held that it is incumbent on the prosecution to prove that a valid
sanction has been granted by the Sanctioning Authority after it
was satisfied that a case for sanction has been made out
constituting the offence. This should be done in two ways; either
(i) by producing the original sanction which itself contains the
facts constituting the offence and the grounds of satisfaction and
(ii) by adducing evidence aliunde to show that the facts placed
before the Sanctioning Authority and the satisfaction arrived at
by it. It is well settled that any case instituted without a proper
sanction must fail because this being a manifest defect in the
prosecution, the entire proceedings are rendered void ab initio.
In the first place, there is no question of the presumption being
// 45 //
available to the Sanctioning Authority under section 4 of the
Prevention of Corruption Act, 1947 because at that stage the
occasion for drawing a presumption never arises since there is
no case in the Court. Secondly, the presumption does not arise
automatically but only on proof of certain circumstances, that is
to say, where it is proved by evidence in the Court that the
money said to have been paid to the accused was actually
recovered from his possession. It is only then that the Court may
presume the amount received would be deemed to be an illegal
gratification.
P.W.3, the Assistant Commissioner of Income Tax
has stated in his cross-examination that the sanction order Ext.8
does not disclose the mode of receiving documents by him. Ext.8
is also silent regarding the names of the witnesses whose
statements were perused by him. The pre-rap memorandum,
post-trap memorandum and seizure list have not been
mentioned in Ext.8. In cross-examination, he further stated that
Ext.8 is silent regarding any such inquiry by him and it also did
not mention that he was satisfied that there was a prima facie
case made out against the appellant under sections 7 and
13(1)(d) of the P.C. Act. There was a draft sanction order and
// 46 //
accordingly, he passed the sanction order and the draft prepared
by him has not been submitted in this case.
In view of the such evidence, there is force in the
submission of the learned counsel for the appellant that P.W.3 is
not the competent authority to accord sanction for launching
prosecution against the appellant, which is very much essential
under section 19 of the P.C. Act and that the sanction order
(Ext.8) is a defective one which was mechanically prepared
without any application of mind.
Conclusion:
15. In view of the foregoing discussion, when the
prosecution has not successfully established the demand aspect
of bribe by the appellant beyond all reasonable doubt, the
defence plea put forth by the appellant has been established by
preponderance of probability and there is defect in the sanction
order (Ext.8), it would not be legally justified to hold the
appellant guilty of the offences charged.
Accordingly, the criminal appeal succeeds and is
allowed. The impugned judgment and order of conviction of the
appellant under section 7 and section 13(2) read with section
13(1)(d) of the 1988 Act and the sentence passed thereunder is
hereby set aside and the appellant is acquitted of all the charges.
// 47 //
The appellant is on bail by virtue of the order of this Court. He is
discharged from liability of his bail bond. The personal bond and
the surety bond stand cancelled.
Trial Court records with a copy of this judgment be
sent down to the concerned Court forthwith for information.
.................................
S.K. Sahoo, J.
Orissa High Court, Cuttack
The 9th November 2022/PKSahoo/Pravakar/RKMishra
