State Of Odisha (Vig.) vs Pramod Kumar Panda
2023 Latest Caselaw 9716 Ori

                      IN THE HIGH COURT OF ORISSA, CUTTACK

                                       GCRLA No. 46 of 2003

        An appeal under section 378 of the Code of Criminal Procedure
        from the judgment and order dated 19.09.2000 passed by Special
        Judge (Vigilance), Berhampur, Ganjam in G.R. No.35 of
        1996(V)/T.R. No.42 of 1998.
                              -----------------------------

State of Odisha (Vig.) ........... Appellant

-Versus-

               Pramod Kumar Panda                     ...........                      Respondent


                      For Appellant :                     -           Mr. Sangram Das
                                                                      Standing Counsel (Vig.)

                       For Respondent:                    -           Mr. Debasis Sarangi
                                                                      Advocate
                                           -----------------------------

        P R E S E N T:

                            THE HON'BLE MR. JUSTICE S.K. SAHOO

---------------------------------------------------------------------------------------------------

Date of Hearing and Judgment: 10.08.2023

---------------------------------------------------------------------------------------------------

S.K. SAHOO, J. The respondent Pramod Kumar Panda faced trial in the

Court of learned Special Judge (Vigilance), Berhampur, Ganjam in

G.R. No.35 of 1996(V)/T.R. No.42 of 1998 for offences punishable

under section 13(2) read with section 13(1)(d) and under section

7 of the Prevention of Corruption Act, 1988 (hereafter 'P.C. Act')

on the accusation that on 05.07.1996 at about 1.15 p.m. at // 2 //

Tikabali Block Office room, Tikabali, he being employed as a

Junior Engineer, Tikabali in Tikabali Block and being a public

servant, by use of corrupt and illegal means and by abusing his

official position, obtained pecuniary advantage to the extent of

Rs.1000/- (rupees one thousand only) and accepted the same as

illegal gratification other than legal remuneration from Byasadev

Pradhan (P.W.5).

The learned trial Court vide impugned judgment and

order dated 19.09.2000 has been pleased to hold that in absence

of any evidence to prove the prior demand or acceptance of bribe

on demand at the time of alleged trap, mere recovery of money

as stated by P.W.4, the Vigilance constable and P.W.6, the

Tahasildar is not sufficient to bring home the charges and

accordingly, it was held that the prosecution has not been able to

establish the charges against the respondent beyond all

reasonable doubts and acquitted him of all the charges.

The State of Odisha, G.A Vigilance has preferred this

appeal challenging the aforesaid judgment and order of acquittal.

2. The prosecution case, as per the F.I.R. lodged by

Byasadev Pradhan (P.W.5) of village Birangi before the

Superintendent of Police, Vigilance, Berhampur is that in the year

1994-95, P.W.5 was selected as the leader of the Village

// 3 //

Committee and he was entrusted by the B.D.O., Tikabali to

construct the building of Anganwadi Centre at village Birangi at an

estimated cost of Rs.65,000/-. It is further stated in the F.I.R.

that during the course of construction, the complainant had taken

Rs.18,700/- towards the first running bill in December, 1994, and

Rs.13,300/- towards the second running bill in the year 1995 and

after completion of work, P.W.5 approached the accused

respondent, who was the Junior Engineer of the Tikabali block to

take final measurement of the work and for payment of his final

bill. It is further stated in the F.I.R. that the respondent

demanded Rs.5,000/- to take the final measurement, but when

P.W.5 expressed his inability to pay such an exorbitant amount,

the respondent agreed to take Rs.2,000/- for the final

measurement and passing the bill, on condition that after taking

Rs.1,000/-, he would go for the final measurement and after

getting the balance amount of Rs.1,000/-, he would pass the bill.

P.W.5 reported the matter in writing to the Superintendent of

Police, Vigilance, Berhampur on 04.07.1996 for taking necessary

action against the respondent.

On the basis of such written report, the

Superintendent of Police, Vigilance, Berhampur directed the officer

in-charge of the Vigilance Police Station, Berhampur to register a

// 4 //

case and accordingly, Berhampur Vigilance P.S. Case No.35 dated

04.07.1996 was registered on under section 13(2) read with

section 13(1)(d) and section 7 of the P.C. Act and Sri Kartikeswar

Jena (P.W.9), Inspector of Vigilance, Balliguda squad was directed

to lay a trap for detection of the case against the respondent and

to take up investigation of the case.

P.W.9 issued requisitions to procure the attendance of

the official witnesses to lay a trap in their presence and basing on

such requisition, the official witnesses came to the Vigilance

office, where preparation for laying the trap was made and during

such preparation, the G.C. notes produced by P.W.5 were

smeared with phenolphthalein powder and handed over to him

with specific instruction to hand over the same to the respondent

only on demand and another official witness Rajani Kanta Sadangi

(P.W.2) was asked to accompany the decoy to overhear the

conversation of the decoy with the respondent and to relay signal

by combing head after acceptance of the bribe by the respondent.

Thereafter, the I.O. with other official witnesses proceeded to the

Block Office and kept their position at a little distance from the

Block Office as per the instruction of the I.O., the decoy and the

accompanying witness (P.W.2) proceeded to the office of the

respondent and after sometime getting signal from P.W.2, the

// 5 //

I.O. along with other members of the trap party rushed to the

office of the respondent, disclosed his identity before him,

challenged him for acceptance of bribe from the decoy and

thereafter took the hand wash of both the hands of the

respondent with sodium carbonate solution, in consequence of

which the colour of the solution turned to rose-pink. Thereafter,

as per the direction of the Vigilance Inspector, the respondent

brought out the tainted G.C. notes from his shirt chest pocket,

which were then handed over to the official witnesses for

verification and on verification, it was found that the number of

the said G.C. notes were tallying with the numbers noted earlier

in the paper chits. Thereafter, the pocket wash of the respondent

was taken with sodium carbonate solution for which the colour of

shirt turned to rose-pink. The I.O. seized the tainted G.C. notes,

wearing shirt of the accused and other relevant documents in

connection with construction work of Anganwadi Centre at village

Birangi and on completion of investigation, charge sheet was

submitted on 31.03.1997 against the respondent under section 7

and section 13(2) read with section 13(1)(d) of the P.C. Act.

3. The defence plea of the respondent was one of denial.

It is pleaded that while he was in the office, five to six persons

came to the office, caught hold of his hands and forcibly thrust

// 6 //

some money into his pocket and thereafter, he was asked to bring

out the money from his pocket and his hand wash was taken. The

respondent denied to have demanded or accepted any bribe

money from P.W.5.

4. During course of trial, in order to prove its case, the

prosecution examined nine witnesses.

P.W.1 Kalicharan Satapathy was the Senior Clerk in

the office of the Sub-Collector, Bhanjanagar, who has been

declared hostile by the prosecution.

P.W.2 Rajanikanta Sadangi was the Senior Clerk in the

office of the Tahasildar, the overhearing witness in the case. He

has been declared hostile by the prosecution.

P.W.3 Birupakhya Nanda was the Senior Clerk in the

office of the Tahasildar, Bhanjanagar has been declared hostile.

P.W.4 Bijaya Kumar Sahoo was working as Vigilance

Constable in the Vigilance office, Berhampur, was a member of

the trap laying party. He has proved the preparation report

(Ext.1) as well as the detection report (Ext.6/1).

P.W.5 Byasadeva Pradhan is the complainant in the

case. He has proved the written report vide Ext.7, but he has

been declared hostile by the prosecution.

// 7 //

P.W.6 Bhaskar Chandra Pattnaik, who was the

Tahasildar, Bhanjanagar, was a member of the trap party and he

is a witness to the preparation report (Ext.1) as well as the

detection report (Ext.6/1). He is also a witness to the seizure of

currency notes as per seizure list Ext.2 as well as a witness to the

seizure of chits marked as Ext.3, the shirt of the respondent vide

M.O. IX as per seizure list Ext.4, the seizure of calculator vide

Ext.5/1, the seizure of case records of J.E. office vide Ext.8,

seizure of measurement book as per seizure list Ext.9 and he also

proved his signature on the detection report marked as Ext.6/1.

P.W.7 Dr.Bishnu Prasad Das who was the Engineer in-

chief, Water Resources, Government of Odisha, accorded sanction

against the respondent for launching the prosecution. He proved

the forwarding letter marked as Ext.11.

P.W.8 was the Inspector of Vigilance, Phulbani, who

took over charge of investigation from P.W.9. He received the

chemical examination report from S.F.S.L., Rasulgarh as per

Ext.12 and submitted charge sheet against the respondent.

P.W.9 Kartikeshwar Jena, who was the Inspector of

Vigilance, Balliguda Squad, was the initial Investigating Officer of

the case. He stated about the entire trap formalities carried out

during the course of investigation.

// 8 //

The prosecution exhibited twelve documents. Ext.1 is

the preparation report, Exts.2 to 4, 5/1, 8 and 9 are the seizure

lists, Ext.6/1 is the detection report, Ext.7 is the F.I.R., Ext.7/4 is

the formal F.I.R., Exts.9/2 and 9/3 are the measurement books,

Ext.10 is the sanction order, Ext.11 is the forwarding letter and

Ext.12 is the chemical examiner's report.

The material objects i.e. solution bottles have been

marked as M.O.I to M.O.VIII, the shirt of the respondent as

M.O.IX and the currency notes as M.O.X on behalf of the

prosecution.

No witness was examined on behalf of the defence.

5. After analyzing the evidence on record, the learned

trial Court has been pleased to hold that there is no reliable and

credible evidence to show that the respondent demanded

Rs.2,000/- from the complainant for taking the final measurement

prior to the alleged trap nor there is any evidence to show that on

the date of the trap, the appellant demanded and accepted the

tainted G.C. notes from the complainant. It is further held that

admittedly not an iota of evidence has been adduced by the

prosecution to show if there was any prior demand of bribe by the

respondent from P.W.5 to take final measurement and there is

absolutely no evidence to show if at the time of alleged trap, the

// 9 //

respondent demanded and accepted the tainted G.C. notes from

P.W.5 and mere recovery of the tainted G.C. notes from the

possession of the respondent is not sufficient to hold the

respondent guilty under section 13(2) read with section 13(1)(d)

and section 7 of the P.C. Act and on that ground, the learned trial

Court acquitted the respondent of all the charges.

6. Mr. Sangram Das, learned Standing Counsel for the

Vigilance Department challenging the impugned judgment and

order of acquittal of the respondent contended that even though

in this case the decoy (P.W.5) and the overhearing witness

(P.W.2) have not supported the prosecution case and have been

declared hostile by the prosecution, but the evidence of the TLO

(P.W.9) is very clinching and it proves the recovery of the tainted

money from the possession of the respondent and when the

comparison of the numbers of the tainted notes have been made

with the numbers earlier noted down and it got tallied, it proves

that the tainted money were accepted by the respondent for

which it was recovered from his possession. Learned counsel

further submitted that as the respondent attempted to obtain the

tainted bribe money which was recovered from his possession, it

is presumed under section 20 of the P.C. Act that the appellant

obtained the recovered money as a motive as mentioned in

// 10 //

section 7 of the P.C. Act. Learned Standing Counsel further

submitted that change of colour of the solution of the handwash

as well as pocket wash of the respondent to pink coupled with the

chemical examination report (Ext.12) substantiates that the

respondent after accepting the same kept it in his shirt pocket

and therefore, even though the two vital witnesses of the

prosecution have not supported the prosecution case, it can be

said that the prosecution has established the charges against the

respondent and the judgment of acquittal was not proper and

justified. In support of such contention, he has relied upon the

decision of the Hon'ble Supreme Court in the case of Neeraj

Dutta -Vrs.- State (Government of NCT of Delhi) reported

in (2023) 4 Supreme Court Cases 731.

Mr. Debasis Sarangi, learned counsel for the

respondent, on the other hand, supported the impugned

judgment and contended that in a case of this nature, to

successfully establish the charges, the prosecution has to prove

all the three aspects, i.e., demand, acceptance and recovery of

the tainted notes and since the decoy and overhearing witness

being examined as P.W.5 and P.W.2 respectively have not

supported the prosecution case, the demand as well as

acceptance part is not proved and merely because the TLO

// 11 //

(P.W.9) stated about the recovery part, the same is not sufficient

to hold the respondent guilty of the offences charged. Learned

counsel further argued that from the evidence of the TLO, it

appears that when the respondent was challenged about

acceptance of bribe amount of Rs.1,000/- from the decoy, he

stated that the money was forcibly inserted in his pocket and the

same plea he has taken in his accused statement and therefore,

the plea taken by the respondent right from the beginning is

consistent and in view of the statement made, it is admissible as

res gestae as per section 6 of the Evidence Act and in view of the

scope of interference in a case of appeal against the order of

acquittal, since the learned trial Court has assigned clinching

reasons for the same, it cannot be said that the findings are

perverse. He further submitted that if at this stage almost after

twenty seven years of the date of occurrence and more than two

decades of pronouncement of the impugned judgment, the order

of acquittal is interfered with, it would cause serious miscarriage

of justice and therefore, the GCRLA should be dismissed.

7. Adverting to the contentions raised by the learned

counsel for both the parties, law is well settled as held in the case

of Chandrappa and others -Vrs.- State of Karnataka

// 12 //

reported in (2007) 4 Supreme Court Cases 415 by the

Hon'ble Supreme Court as follows:-

"42. From the above decisions, in our considered view, the following general principles regarding powers of Appellate Court while dealing with an appeal against an order of acquittal emerge:

(1) An Appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an Appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an Appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an Appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.

// 13 //

(4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.

(5) If two reasonable conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial court."

Therefore, this Court can reconsider and re-appreciate

the evidence on record and can reach its own conclusion, both on

questions of fact and of law. As an Appellate Court, there is no

limitation, restriction or condition on exercise of power of

reconsideration and re-appreciation of evidence on record and

also the reasoning given by the trial Court. This Court has as wide

powers of appreciation of evidence in an appeal against an order

of acquittal as in the case of an appeal against an order of

conviction, subject to the riders that the presumption of

innocence with which the accused person starts in the trial Court

// 14 //

continues even up to the appellate stage. Once the appeal is

entertained against the order of acquittal, the High Court is

entitled to re-appreciate the entire evidence independently and

come to its own conclusion. An appellate Court while dealing with

an appeal against acquittal passed by the learned trial Court, is

required to bear in mind that in case of acquittal, there is double

presumption in favour of the accused. Firstly, the presumption of

innocence is available to him under the fundamental principle of

criminal jurisprudence that every person shall be presumed to be

innocent unless he is proved guilty by a competent Court of law.

Secondly, the accused having secured his acquittal, the

presumption of his innocence is further reinforced, reaffirmed and

strengthened by the trial Court.

8. Now, on the basis of the aforesaid rival legal

contentions urged on behalf of the parties, the following points

would arise for consideration of this Court:-

i) Whether the demand, acceptance and recovery of gratification are proved by the prosecution and whether the presumption of offence alleged to have been committed by the respondent would arise in this case?

ii) Whether the findings and reasons recorded on the charges by the learned trial Court are based on

// 15 //

proper appreciation of legal evidence on record and within the legal parameters laid down by the Hon'ble Supreme Court and this Court in its decisions?

In a case of this nature, there is no dispute that the

prosecution has to successfully prove the foundational facts i.e.

the demand, acceptance of bribe money and recovery of the same

from the accused and then only the statutory presumption under

section 20 of the P.C. Act against the guilt of the accused would

arise and the accused has to adduce evidence relating to the

rebuttal of such presumption. Demand of illegal gratification is

sine qua non for constituting the offence under section 7 and

section 13(2) read with section 13(1)(d) of the P.C. Act. Mere

recovery of amount by the accused is not sufficient to fasten the

guilt, in the absence of any evidence with regard to demand and

acceptance of the amount as illegal gratification. Mere recovery of

tainted money from the possession of the accused is not sufficient

to convict him, unless there is evidence to prove payment of bribe

or to show that the money was taken voluntarily as bribe.

In the case of P. Satyanarayana Murthy -Vrs.- The

Dist. Inspector of Police and others reported in (2015)10

Supreme Court Cases 152), the Hon'ble Supreme Court held as

follows:-

// 16 //

"23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, 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 accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.

26. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas

-Vrs.- State of Assam reported in (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused."

// 17 //

In the case of B. Jayaraj -Vrs.- State of A.P.

reported in (2014)13 Supreme Court Cases 55), the Hon'ble

Supreme Court held as follows:-

"7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M.

Sharma -Vrs.- State of A.P. reported in (2010) 15 SCC 1 and C.M. Girish Babu -Vrs.- C.B.I. reported in (2009) 3 SCC 779.

8....We are, therefore, inclined to hold that the learned trial Court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive

// 18 //

insofar as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established."

In the case of K. Shanthamma -Vrs.- The State of

Telangana reported in (2022)4 Supreme Court Cases 574,

the Hon'ble Supreme Court held as follows:-

"7....The offence under Section 7 of the PC Act relating to public servants taking bribe requires a demand of illegal gratification and the acceptance thereof. The proof of demand of bribe by a public servant and its acceptance by him is sine quo non for establishing the offence under Section 7 of the PC Act."

9. Coming to the evidence of the decoy, who has been

examined as P.W.5 in this case, he stated that he has taken the

work in question in Tikabali block in the year 1994-95 at an worth

of Rs.65,000/- and he got some payments and for the balance

dues, he approached the Junior Engineer, who is none else than

the respondent in this appeal, who told him to look after the

matter by the Assistant. He stated that report was lodged before

the Vigilance Officer and the Vigilance Officer drafted the report

and he copied the same and the same was not written with his

// 19 //

consent. The witness was declared hostile by the learned Public

Prosecutor and leading questions were allowed to be put to him,

but P.W.5 denied to have made any statement regarding demand,

acceptance and recovery of the bribe money from the possession

of the respondent. In the cross-examination by the learned

defence counsel, he stated that the B.D.O. himself passes the

final bill and after completion of the work, they used to inform the

B.D.O., who gives instruction to the Junior Engineer for making

necessary measurement and after measurement, bill is prepared

by the Accountant. He further stated that he was caught by the

Vigilance Officer and asked to sit in a room where the documents

were prepared and he was asked to put his signature on different

documents and then, he was asked to accompany them to

Baliguda and at the place of detection after arrival of the Vigilance

Officer, they caught hold of the hands of the respondent and he

did not know what else happened. He specifically stated that

except signing on the documents, he did not give any statement

before the Vigilance Officer. Therefore, from the evidence of the

decoy (P.W.5), there is nothing either about demand or

acceptance or recovery of any tainted money from the possession

of the respondent.

// 20 //

Similarly, the overhearing witness being examined as

P.W.2 has stated that in the IB where preparation was made,

when he arrived there, P.W.5 was introduced to all of them and

then P.W.5 explained that he was to get some money towards his

bill and the respondent, who was the J.E. told him to pay some

money for getting the dues, but he stated that he did not know

anything else of the case. He was also declared hostile by the

learned Public Prosecutor and the learned trial Court allowed the

learned Public Prosecutor to put leading questions to him.

However, in cross-examination by the prosecution also, he denied

to have been examined by the I.O. or stated anything regarding

demand, acceptance or recovery of bribe money from the

possession of the respondent. In cross-examination by the

defence, P.W.2 stated that the preparation report and the

detection report were not read over and explained to him and he

merely put his signatures on different documents as required and

instructed by the Vigilance Officer. Therefore, the evidence of

P.W.2 is also in no way helpful to the prosecution. It is the settled

principle of law that the evidence of a hostile witness cannot be

totally thrown out of the board and the prosecution or the

accused can rely on the evidence whichever is helpful to their

respective cases. However, the learned Public Prosecutor by

// 21 //

cross-examining two important witnesses i.e. P.W.5 and P.W.2

has not brought out anything which would help the prosecution in

substantiating the charges against the respondent.

The evidence of the TLO (P.W.9) no doubt indicates

that when he got the signal from P.W.2, he along with other

members of the trap party rushed to the office of the respondent

and after arrival, they disclosed their identity and the respondent

was challenged to have accepted Rs.1000/- towards bribe from

P.W.2, but the respondent remained mum for some time and then

stated that money was forcibly inserted in his pocket. It comes

out from the evidence of P.W.9 that the hand wash of both the

hands of the appellant was taken in two separate glasses of

sodium carbonate solution due to which the colour of solution

turned to rose-pink colour, which were collected in two separate

bottles. The evidence of P.W.9 further indicates that tainted

currency notes were brought out from the chest shirt pocket of

the respondent and the numbers of such notes were verified with

the earlier noted down numbers and it got tallied and the G.C.

notes were seized under seizure list Ext.2 and then the pocket

wash of the shirt was taken with sodium carbonate solution which

also turned to rose-pink colour and the solution was collected in a

separate bottle. The chemical examination report which has been

// 22 //

marked as Ext.12 indicates that phenolphthalein was detected in

each of the bottles which were sent for examination, but the

evidence of P.W.9 coupled with the chemical examination report

substantiates only the recovery part. The contention of the

learned Standing Counsel that once there is recovery, acceptance

part is to be presumed, is not correct. For example, if someone

keeps the tainted money in the ignorance of a person in his

pocket or in the official file or thrust the same into his pocket

from where it was recovered, it cannot be said that the person

concerned from whom recovery was made has accepted it

voluntarily. Clinching evidence relating to acceptance is to be

adduced by the prosecution in a case of this nature.

In the case of Neeraj Dutta (supra), the question

which came up for consideration before the Five-Judge Bench was

as follows :

"In the absence of evidence of complainant/ direct or primary evidence of demand of illegal gratification, is it not permissible to draw inferential deduction of culpability/guilt of a public servant Under Section 7 and Section 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution."

// 23 //

While answering to the above question, it has been

held as follows:

"88. What emerges from the aforesaid discussion is summarised as under:

88.1(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the Accused public servant Under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

88.2(b) In order to bring home the guilt of the Accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

88.3(c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

88.4 (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

// 24 //

(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence Under Section 13(1)(d)(i) and (ii) of the Act.

(iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence Under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, Under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence.

                      // 25 //




   Similarly, a prior           demand by the   public

servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment Under Section 13(1)(d) and (i) and (ii) of the Act.

88.5 (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the Accused and in the absence of rebuttal presumption stands.

88.6 (f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the Accused public servant.

// 26 //

88.7 (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act.

88.8(h) We clarify that the presumption in law Under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."

Since the decoy as well as the overhearing witness

has not supported the prosecution case, there is no evidence

relating to offer to pay by bribe giver and there is also no

evidence of acceptance of the offer and therefore, section 7 of the

P.C. Act will not be attracted in view of the ratio laid down in

Neeraj Dutta (supra). Similarly, when the evidence relating to

demand made by the public servant and acceptance of the

demanded amount from the bribe giver is missing, the ingredients

of the offence under section 13(1)(d)(i)(ii) of the P.C. Act are not

attracted. The question of presumption under section 20 of the

// 27 //

P.C. Act that illegal gratification was for the purpose of motive or

reward as mentioned in the section can only be for the offence

under section 7 of the P.C. Act and not for the offence under

section 13(1)(d)(i)(ii) of the P.C. Act. When the basic ingredients

to attract the offence under section 7 of the P.C. Act is lacking in

this case, the question of raising presumption under section 20 of

the P.C. Act does not arise. Mere recovery of tainted money from

the possession of the respondent, in my humble view, would not

be sufficient to sustain the charges under section 7 and 13(2)

read with section 13(1)(d) of the P.C. Act.

It cannot be lost sight of the fact that when the

respondent was first challenged by the TLO (P.W.9) to have

received the bribe money from the decoy (P.W.5), he stated that

the money was forcibly inserted in his pocket. In the accused

statement, to question no. 24, the respondent has stated that

while he was in the office, five to six persons came to the office,

caught hold of his hands and forcibly thrust some money into his

pocket and thereafter, he was asked to bring out the money from

his pocket and then, his hand wash was taken. The statement

made by the respondent at the first instance that money was

forcibly inserted in his pocket comes within res gestae which is

admissible under section 6 of the Evidence Act and it cannot be

// 28 //

said that there was hardly any time for concoction of defence plea

to be taken during the course of trial. Excited utterances are

closely connected with the event in time and the excitement flows

from the event. Excited utterances have been considered part of

action and therefore, admissible despite the rule of hearsay. The

learned trial Court seems to have discussed the evidence on

record carefully and came to the conclusion that there is absence

of any evidence to prove prior demand or acceptance of bribe or

demand at the time of alleged trap and mere recovery of money

as stated by P.W.4, the Vigilance Constable and P.W.6 the

Tahasildar is not sufficient to bring home the charge under section

13(2) read with section 13(1)(d) and section 7 of the P.C. Act.

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

// 29 //

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.

After going through the impugned judgment and the

materials available on record, I am of the humble view that there

is no perversity in the impugned judgment passed by the learned

trial Court and it has been rightly held that the prosecution has

failed to establish the charges under section 13(2) read with

section 13(1)(d) and section 7 of the P.C. Act.

10. Accordingly, the GCRLA being devoid of merits, stands

dismissed.

The 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 10th August 2023/PKSahoo

Signature Not Verified Digitally Signed Signed by: PRAMOD KUMAR SAHOO Reason: Authentication Location: HIGH COURT OF ORISSA Date: 22-Aug-2023 14:39:11