Orissa High Court
Ghasiram Behera vs State Of Odisha on 9 October, 2023
IN THE HIGH COURT OF ORISSA, CUTTACK
CRLA No.379 of 2017
From the judgment and order dated 19.05.2017 passed by the
Special Judge (Vigilance), Cuttack in T.R. Case No.314 of 2007.
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Ghasiram Behera ......... Appellant
-Versus-
State of Odisha
(Vigilance) ......... Respondent
For Appellant: - Mr. Deba Prasad Das
For Respondent: - Mr. Niranjan Moharana
Addl. Standing Counsel (Vig.)
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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: 09.10.2023
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S.K. SAHOO, J. The appellant Ghasiram Behera faced trial in the
Court of learned Special Judge (Vigilance), Cuttack in T.R. Case
No.314 of 2007 for offences punishable under section 13(2) read
with section 13(1)(d) and section 7 of the Prevention of
Corruption Act, 1988 (hereafter 81988 Act9) on the accusation
that on 14.11.2003 he being a public servant functioning as
Dealing Clerk in the office of Sub-Treasury, Pallahara in Angul
// 2 //
district obtained for his pecuniary advantage to the extent of
Rs.1,100/- (rupees eleven hundred) from the informant
Mahendra Kumar Sahoo (P.W.1) for processing the gratuity and
arrear provisional pension bills of his widow mother and accepted
the said amount for himself as gratification other than legal
remuneration for the above purpose.
The learned trial Court vide impugned judgment and
order dated 19.05.2017 found the appellant guilty of the
offences charged and sentenced him to undergo rigorous
imprisonment for one year and to pay a fine of Rs.3,000/-
(rupees three 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 and to undergo
rigorous imprisonment for one year and to pay a fine of
Rs.1,000/- (rupees one thousand), in default, to undergo
rigorous imprisonment for two months for the offence under
section 7 of the 1988 Act with a direction that the sentences
shall run concurrently.
2. P.W.1 lodged the written report (Ext.1) before the
Superintendent of Police, Vigilance, Cuttack through the
Inspector, Vigilance, Angul on 13.11.2003 stating therein that
his father late Harihar Sahoo was serving as a teacher of
// 3 //
Government Primary School and he expired on 29.03.2003.
About two months prior to the lodging of F.I.R., the bill of
unutilized leave of his deceased father in the name of his mother
was submitted by B.D.O., Pallahara to Sub-Treasury office,
Pallahara for passing the same and for payment. As the
processing of such bill got delayed, on the request of P.W.1 for
processing the bill file, the appellant demanded a bribe of
Rs.1,000/- (rupees one thousand) for such purpose and out of
the demanded amount, P.W.1 made payment of Rs.200/-(rupees
two hundred) under compulsion and he was instructed by the
appellant to pay the balance amount later on and thereafter
gratuity and arrear provisional pension bills amounting to
Rs.90,800/- was submitted by B.D.O., Pallahara on 01.11.2003
to the Sub-Treasury along with provisional pension bill of the
mother of P.W.1. Though the provisional pension bill was passed
by the treasury, the other two bills were returned to the Block
office. When P.W.1 came to know about the same, he came to
the treasury on 03.11.2003 and met the appellant, but the
appellant on seeing P.W.1 got angry and charged him for non-
payment of the balance amount of bribe and further warned him
not to process any of the bills if his demand was not fulfilled. The
appellant demanded bribe of Rs.1,500/- from P.W.1 to process
the bills and did not listen to P.W.1 in spite of his repeated
// 4 //
request on 04.11.2003. P.W.1 again met the appellant in his
office and requested him but the latter remained firm on his
demand. Finding no other alternative and under compulsion and
against his will, P.W.1 paid Rs.400/- to the appellant who took
the same and asked P.W.1 to get the bills resubmitted from the
Block office and further asked him to come up with the balance
amount of Rs.1,100/- on 14.11.2003 and to pay him in his office.
The appellant made it clear that unless the balance amount was
paid, he would not process the bill. The bills were resubmitted to
the treasury by the Block office on 10.11.2003. P.W.1 further
mentioned in his written report (Ext.1) that he was going to pay
the bribe amount of Rs.1,100/- as demanded by the appellant to
him against his will and under compulsion and requested the
vigilance officials to take necessary action against the appellant.
The written report was received from P.W.1 by the
Inspector, Vigilance, Angul and the same was forwarded to the
office of Superintendent of Police, Vigilance, Cuttack Division,
Cuttack, where on 13.11.2003 Mr. Mahesh Chandra Mohanty,
Superintendent of Police, Vigilance, Cuttack, directed the O.I.C.,
Vigilance police station, Cuttack Division, Cuttack to register the
case and simultaneously directed Lingaraj Panda (P.W.4), the
Inspector, Vigilance Squad, Dhenkanal and Kunja Bihari Pani
// 5 //
(P.W.7), the Inspector of Police, Angul Vigilance Unit for laying of
trap and taking up investigation respectively. The O.I.C.,
Vigilance police station registered Cuttack Vigilance P.S. Case
No.64 dt. 13.11.2003 under section 13(1)(d) and section 7 of
the 1988 Act.
Pre-trap proceeding was taken up at Angul Vigilance
Unit office on 14.11.2003 around 7.45 a.m. procuring attendance
of independent official witnesses, namely, Rabindra Kumar
Behera (P.W.3), Dillip Kumar Swain (P.W.8) and one Girish
Chandra Rath (not examined due to his death) in presence of
P.W.1 and other trap party members. Following introduction of
P.W.1 to the witnesses, P.W.1 narrated his grievance, inter alia,
told that the appellant being the Dealing Clerk of Sub-Treasury
office, Pallahara was demanding bribe of Rs.1,100/- (rupees
eleven hundred) for processing the gratuity arrear bill of his late
father. P.W.1 produced two numbers of 500 rupee denomination
G.C. notes and one 100 rupee denomination G.C. note. The
serial numbers and denominations thereof were noted down in a
chit of paper (Ext.18). The said chit of paper was handed over to
witness Girish Chandra Rath for comparison of the serial
numbers and denomination of the tainted notes after its recovery
at the spot. Followed by demonstration conveying the witnesses
// 6 //
about the chemical reaction of phenolphthalein powder with
sodium carbonate solution, the produced G.C. notes of P.W.1
were being smeared with phenolphthalein powder, made over to
P.W.1 to hand over the same to the appellant on demand only.
P.W.3 was instructed to accompany P.W.1 to overhear the
conversation, to witness the transaction and to relay the signal
on completion of transaction. P.W.8 was instructed to accompany
witness Girish Chandra Rath to the spot to witness the post-
detection transaction. Pre-trap demonstration report (Ext.2) was
accordingly prepared.
On completion of preparation around 11.00 a.m. on
14.11.2003, the trap party members proceeded to the spot i.e.
Sub-Treasury office, Pallahara including P.W.1, P.W.3 and P.W.8.
On their arrival near the spot, P.W.1 being accompanied by
P.W.3 proceeded inside the office premises whereas the other
trap party members remained scattered outside awaiting pre-
arranged signal. It is the further prosecution case that the
appellant on seeing P.W.1 instantly demanded the bribe and
accepted the tainted notes on being handed over by P.W.1. The
appellant receiving the currency notes from P.W.1, kept the said
money in his left side wearing shirt pocket and then he kept it in
between bunch of files kept in his office almirah. Observing the
// 7 //
completion of transaction, P.W.3 relayed pre-arranged signal.
Getting such signal, the trap party members rushed to the spot
and gave their identity to the appellant who became nervous and
pale. P.W.3 told to others at the spot that the appellant accepted
the tainted G.C. notes pursuant to his demand. Both the hand
wash of the appellant was taken separately in sodium carbonate
solution, which changed to pink colour on each occasion. At the
instance of the appellant, the tainted G.C. notes were recovered
from his office almirah in between the bunch of files. The witness
Girish Chandra Rath in presence of P.W.8, compared the serial
numbers and denomination of the recovered tainted G.C. notes
with that of serial numbers and denominations noted by him
earlier and found the same got tallied. The shirt pocket wash of
the appellant on being taken in sodium carbonate solution,
released pink colour. Similarly, the cotton wash of the almirah
where the tainted G.C. notes were kept, on being taken in
sodium carbonate solution, released pink colour. The concerned
bills in question were seized from the office table of P.W.5
(Treasury Officer). Each of the pink colour solution of the afore-
stated wash was preserved in bottle containers being duly
packed and sealed.
// 8 //
The tainted G.C. notes, each of the sealed bottle
containers, fourfold paper, shirt of the appellant, chit of paper
containing serial numbers and denomination of G.C. notes were
also seized besides others. P.W.7 receiving the seized articles
and the case record from P.W.4, took up investigation, visited
the spot, examined the witnesses, prepared the spot map
(Ext.15), sent the bottle containers to S.F.S.L., Rasulgarh,
received the C.E. report (Ext.16), seized original service book of
the appellant, made pre-sanction discussion with the sanctioning
authority and obtained the sanction order (Ext.17) and on
completion of investigation, submitted charge sheet against the
appellant on 20.12.2003 under section 13(2) read with section
13(1)(d) and section 7 of the 1988 Act.
Defence Plea:
3. The defence plea of the appellant is one of denial and
false implication. The further plea of the defence is that P.W.1
claiming himself to be a politician was usually coming to the
office of the appellant in connection with the works of the public
prior to the initiation of the case. He was in a habit to threaten
the staff of the treasury office for performing the work of the
people. The appellant on one occasion protesting such activities
of P.W.1 warned him not to come to the office to pollute the
// 9 //
official environment for which there was hot exchange of words
between the appellant and P.W.1. The appellant had threatened
him to see in future. It is stated that on the date of occurrence
with a view to harass the appellant on account of the previous
grudge, P.W.1 coming to his office while he was busy in
performing works, shook his hands and all of a sudden thrust
some currency notes into the chest pocket of the wearing shirt of
the appellant and immediately fled away from the office room
despite resistance and protest of the appellant. At the nick of the
moment, the vigilance officials came and caught hold of him. On
being asked, he brought out the tainted G.C. notes from his
pocket and counted. It is further pleaded by the appellant that
he neither demanded nor accepted any bribe from P.W.1 and he
had already sent the concerned file to the accountant two days
prior to the date of trap and therefore, there was no work of
P.W.1 pending with him.
Prosecution witnesses, documents exhibited and material
objects proved on behalf of prosecution:
4. In order to prove its case, the prosecution examined
nine witnesses.
P.W.1 Mahendra Kumar Sahoo is the informant in the
case and he has stated in detail relating to the demand of bribe
// 10 //
by the appellant, lodging of the written report vide Ext.1 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 further stated that since he was feeling uneasy, he was
allowed to sit at the spot and the vigilance personnel prepared
their papers and prepared the detection report (Ext.3) at the
spot.
P.W.2 Niranjan Patnaik was the Senior Clerk in the
Sub-Treasury Office, Pallalahara. He stated that the appellant
was serving as Junior Clerk in the said office. He further stated
that on his production, the vigilance police seized the service
book of the appellant under seizure list Ext.4 and gave it in his
zima vide Ext.4/2.
P.W.3 Rabindra Kumar Behera was the Junior Clerk
in the Collectorate, Angul and as per the direction of the A.D.M.,
Angul, he had attended the office of the D.S.P., Vigilance, Angul.
On 14.11.2003 he accompanied the trap party members to the
Sub-Treasury office, Pallahara and further stated that in the
Treasury Office, a treasury clerk was trapped by the vigilance
police and there was gathering. He was declared hostile by the
prosecution.
// 11 //
P.W.4 Lingaraj Panda was working as Inspector,
Vigilance, Dhenkanal Squad, who stated that as per the direction
of the Superintendent of Police, Vigilance, Cuttack on 13.11.2003
night to lay a trap in Cuttack Vigilance P.S. Case No.64 dated
13.11.2003, he proceeded to Vigilance Squad Office, Angul on
the next day morning. He is a witness to the pre-trap
preparation proceeding who accompanied the pre-trap party
members to the Sub-Treasury office, Pallahara and stated about
the recovery of the G.C. notes from the almirah of the appellant,
hand wash and pocket wash of the appellant being taken in
sodium carbonate solution. He is a witness to the detection
report, seizure of the bottles containing the washes, seizure of
original bills from the Sub-Treasury office, Pallahara and giving
the same in the zima of the accountant.
P.W.5 Akhaya Kumar Sethi was serving as Sub-
Treasury Officer at Sub-Treasury office, Pallahara and he is a
witness to the seizure of the service book of the appellant by the
vigilance officials as per seizure list Ext.4. He is also a signatory
to the detection report vide Ext.3.
P.W.6 Dushasan Nayak was the accountant in the
office of the Sub-Treasury Officer, Pallahara who stated that the
appellant had handed over one G.P.F. and pension bill of an
employee to him for its final check up and submission before
// 12 //
Sub-Treasury Officer and accordingly, the same was sent to Sub-
Treasury Officer on 14.11.2003 at about 10.30 to 11.00 a.m. He
is also a witness to the seizure of pension and gratuity bill of the
father of P.W.1 as per seizure list Ext.13.
P.W.7 Kunja Bihari Pani was the Inspector of Police,
Vigilance who took over the charge of investigation from P.W.4,
examined the informant and other witnesses, visited the spot
and prepared the seizure list, sent the seized bottle containers to
S.F.S.L., Rasulgarh for chemical examination and opinion, seized
the original service book of the appellant and released the same
in the zima of P.W.2, received the C.E. report, obtained the
sanction order (Ext.17) from Director, Treasury and Inspection,
Odisha, Bhubaneswar and on completion of investigation,
submitted charge sheet against the appellant.
P.W.8 Dillip Kumar Swain was the Junior Clerk of
Collectorate, Angul who stated about pre-trap preparation and
accompanying the trap party to the office of Sub-Treasury,
Pallahara. He further stated about the recovery of the tainted
G.C. notes from the almirah of the appellant and hand washes of
the appellant being taken by the vigilance officials and other
formalities which were completed in the office of the appellant.
He is a signatory of the different seizure lists.
// 13 //
P.W.9 Mahesh Chandra Mohanty was the S.P.,
Vigilance, Cuttack who on receipt of Ext.1 from Inspector,
Vigilance, Angul directed the O.I.C., Vigilance, Cuttack to
register the case and further directed P.W.4 for laying the trap
and P.W.7 to investigate the case.
The prosecution exhibited eighteen documents. Ext.1
is the F.I.R., Ext.2 is the preparation report, Ext.3 is the
detection report, Ext.4, Ext.5/1, Ext.6/1, Ext.7/1, Ext.9, Ext.10,
Ext.11, Ext.12 and Ext.13 are the seizure lists, Ext.8 is the paper
containing facsimile seal impression, Ext.14 is the photocopies of
documents containing nine pages, Ext.15 is the spot map, Ext.16
is the C.E. Report, Ext.17 is the sanction order and Ext.18 is the
chit of paper.
The prosecution proved seven material objects. M.O.I
is the bottle containing pink colour solution relating to left hand
wash of the appellant, M.O.II to the bottle containing pink colour
solution relating to right hand wash of the appellant, M.O.III is
the packet containing tainted notes, M.O.IV is the bottle
containing pink colour solution relating to both hand wash of the
witness G.R. Rath, M.O.V is the seized shirt of the appellant,
M.O.VI is the bottle containing shirt pocket wash of the
appellant, M.O.VII is the bottle containing cotton wash of the
// 14 //
shelf of office almirah of the appellant. The chemical examination
report (Ext.16) indicates that the exhibits marked as B, C, D, E,
F and G were found to contain phenolphthalein in Sodium
Carbonate solution.
Defence witness and document exhibited by defence:
5. In order to prove his case, the appellant Ghasiram
Behera examined himself as D.W.1. One document i.e. Ext.A was
exhibited on behalf of defence which is the forwarding report of
articles by I.O. (P.W.7).
Points for determination formulated by trial Court:
6. The learned trial Court formulated the following
points for determination:-
(i) Whether the work of processing the gratuity
bill of the father of P.W.1 was pending before
the accused on the date of F.I.R. onwards and
prior to it and the accused was dealing with such
files as a Clerk of Sub-Treasury office, Pallahara?
(ii) Whether the accused advanced demand of
bribe of Rs.1,100/- prior to lodging of F.I.R. at
his office from the complainant for processing
the concerned bill of gratuity?
(iii) Whether the accused demanded and
accepted bribe of Rs.1,100/- from the
complainant for processing the gratuity bill in
question and he obtained such illegal
// 15 //
gratification for his pecuniary advantage abusing
his official position as a reward or motive for
doing official act?
(iv) Whether the tainted notes were recovered
from the office almirah of the accused on
14.11.2003 around 11.45 a.m. onwards?
(V) Whether the hands wash as well as shirt
pocket wash of the accused being taken in
sodium carbonate solution, gave positive result
and the same has been affirmed through the
opinion of the expert on detection of
phenolphthalein substance thereon?
Finding of trial Court:
7. After assessing the oral and documentary evidence,
the learned trial Court has been pleased to hold that the
testimonies of P.W.1, P.W.5 and P.W.6 coupled with the
admission of the appellant lead to the conclusion that the
appellant was a public servant within the meaning of section 2 of
the 1988 Act being the Junior Clerk of Sub-Treasury Office,
Pallahara. It is further held that the sanctioning authority has
validly passed the order of sanction, being competent to remove
the appellant from service and the sanction order for launching
prosecution against the appellant is not vitiated in any manner.
It is further held that absence of primary evidence of P.W.3 as to
relay of signal did not matter since the evidence of other
// 16 //
witnesses i.e. P.W.1, P.W.4 and P.W.8 to that effect is found to
be consistent and the contents of Ext.2 in that regard appears to
have been substantiated. It is further held that the tainted notes
recovered from office almirah of the appellant had got contact
with the hands and shirt pocket of the appellant. It is further
held that the appellant pursuant to his demand of bribe,
accepted the tainted notes and kept it at first in his shirt pocket
then he kept it in the bunch of files of his official almirah and in
view of the proof of demand and acceptance of bribe, the tainted
notes recovered from the possession of the appellant was
nothing but illegal gratification received as a reward or motive
for doing official act and it was so presumed applying section 20
of 1988 Act and thus the prosecution has succeeded in bringing
home the charge against the appellant.
Contentions of respective parties:
8. Mr. Deba Prasad Das, learned counsel appearing for
the appellant contended that there was strong animosity
between the appellant and P.W.1 as the latter was threatening
the employees of the treasury. Learned counsel further argued
that P.W.1 lodged the F.I.R. on 13.11.2003 alleging therein that
on 01.11.2003 the bills for gratuity and provisional pension were
submitted to the treasury and thereafter he went to the treasury
// 17 //
on 03.11.2003 and met the appellant, who demanded Rs.1,500/-
from him to process the same and again on 04.11.2003, when
he met the appellant, the latter remained rigid for which finding
no other alternative, he paid Rs.400/- to the appellant and the
appellant asked him to come with the balance amount on
14.11.2003. Though P.W.1 has mentioned in the F.I.R. that the
bills (Ext.14) were re-submitted by the Block Office on
10.11.2003, but from Ext.14, it is evident that the same was
received in the Sub-Treasury only on 11.11.2003 and not prior
to that and the official seals of the treasury with the date
establishes this fact.
Learned counsel argued that if as per the evidence of
the T.L.O. (P.W 4) as well as from the bill in question under
Ext.14, it was received only on 10/11.11.2003 in the Sub-
Treasury, Pallahara from the Block office and not prior to that,
there could not have been any occasion for P.W.1 to approach
the appellant on 3.11.2003 or 4.11.2003 and to pay money for
processing the bills. Prior to 11.11.2003, there was no occasion
for the appellant to demand any bribe from P.W.1. Learned
counsel further argued that it cannot be believed for a moment
that one would meet a person and pay money to him with whom
// 18 //
no work was pending and thus, the evidence of P.W.1 casts
serious doubt about his version.
Learned counsel further argued that the overhearing
witness (P.W.3) has not whispered a word about the occurrence,
rather he deposed that he could not identify the person who was
trapped and he could not say if the appellant standing in the
dock was the person who was trapped. P.W.1 in his examination
in chief though stated about the demand of bribe, but if his
evidence if read as a whole, the same does not inspire
confidence.
Learned counsel further argued that the plea of
defence that there was no reason/cause/ground for demand of
illegal gratification has sufficient force and it has not only been
established through oral testimony but also through the
contemporaneous official documents such as the bills under
Ext.14.
Learned counsel further argued that the bills under
Ext.14 discloses that the appellant processed the same and put
up before the accountant and the accountant in his turn signed
the bills on 12.11.2003 and later the bills reached the Treasury
Officer who also signed the bill on 14.11.2003. Thus, it is crystal
clear that the appellant promptly dispatched after processing the
// 19 //
bills on the day it was received by him and the bills were then
placed before the accountant and when the accountant has put
his signature on 12.11.2003, it pre-supposes that no further
work was pending with the appellant and the bills would be
transmitted onwards which was in fact being done as the
Treasury Officer himself has signed the bills on 14.11.2003.
P.W.5, the Treasury Officer also corroborates the same, who
deposed that the bill file dealt by the appellant was sent to the
accountant on 12.11.2003.
Learned counsel further argued that the defence plea
has been lightly brushed aside by the learned trial Court. The
recovery of the tainted notes is shrouded with mystery and
though P.W.1 at first deposed that the money was recovered
from the almirah but on the next moment, he has given a
different version and since the evidence adduced by the
prosecution is not reliable and cogent, benefit of doubt should be
extended in favour of the appellant.
9. Mr. Niranjan Moharana, learned Addl. Standing
Counsel appearing for the Vigilance Department, on the other
hand, supported the impugned judgment. It is his submission
that on the date of trap, when P.W.1 met the appellant in his
office, the appellant asked him as to whether he had brought the
// 20 //
money and it reflects that on the of trap he again made the
demand. The evidence to that effect has not been dispelled by
the appellant. Learned counsel further argued that the deposition
of P.W.1 in his cross-examination, fortifies the fact of deliberate
acceptance of the tainted bribe money from P.W.1 by the
appellant, knowing the same as bribe and not his legal
remuneration. Thus, the demand and acceptance is well proved.
Learned counsel further argued that the T.L.O. (P.W.4) fully
corroborated the case of the prosecution and the fact of recovery
of the tainted money from the office almirah and therefore, there
is no merit in the appeal, which should be dismissed.
Gravamen of offences under section 7 and section 13(2)
read with section 13(1)(d) of the 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
illegal gratification. In order to constitute an offence under
section 7 of 1988 Act, proof of demand is a sine qua non. 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
// 21 //
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
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
// 22 //
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.
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
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.
// 23 //
It is well settled that the presumption to be drawn
under section 20 of 1988 Act is not an inviolable one and it is a
rebuttable presumption. 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
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. The burden placed on the accused for
rebutting the presumption is one of preponderance of
probabilities.
Whether there was any occasion for the appellant to
demand bribe and any pending work was there with the
appellant:
11. Adverting to the contentions raised by the learned
counsel for the respective parties, let me now first analyse the
evidence on record to find out whether there was any occasion
prior to 11.11.2003 on the part of the appellant to demand bribe
// 24 //
and whether there was any pending work of P.W.1 with the
appellant as on 14.11.2023 to make demand of bribe.
As per the charge framed, for processing the gratuity
and arrear provisional pension bills of the widow mother of
P.W.1, the appellant demanded bribe of Rs.1,500/-. As per the
F.I.R., such bills were submitted by B.D.O., Pallahara to the Sub-
Treasury, Pallahara first on 01.11.2003 and though the
provisional pension bills was passed by the treasury, the other
bills were returned to the Block office. As per the F.I.R., the
demand of Rs.1,500/- was made by the appellant on 03.11.2003
which was reiterated on 04.11.2003, on which day Rs.400/- was
paid by P.W.1 to the appellant and the balance amount of
Rs.1,110/- was asked to be paid by the appellant on 14.11.2003.
As per the F.I.R., the bills were resubmitted to the treasury by
the Block office on 10.11.2003.
In the evidence, P.W.1 is completely silent as to on
which dates the demand was made by the appellant, on which
date he paid Rs.400/- and on which date he was asked to pay
the balance amount of Rs.1,110/-. The evidence is also silent
that one of the bills was passed, whereas the other bills were
returned to the Block office and then it was re-submitted. P.W.1
has stated in the cross-examination that he did not remember
// 25 //
the date on which the bill of his mother was presented in the
Block Office and he could not say on which date the said bill was
received by the treasury. The bills which was proved the
prosecution is Ext.14 and it is photocopies of documents
containing nine pages, which does not indicate that it was a re-
submitted bill after correction. If Ext.14 was the freshly prepared
bills by the Block Office, then the prosecution should have
proved the bills which were stated to have been returned from
the treasury to the Block office to corroborate the evidence of
P.W.1. The same having not been done, there is no documentary
evidence on record that any bills were returned from the
treasury to the Block office. F.I.R. by itself is not a substantive
piece of evidence. Therefore, in absence of any evidence of
P.W.1, the F.I.R. version that one bill was passed, other bills
were returned to the Block office from the treasury and it was
re-submitted, cannot be accepted particularly when no
corresponding documents were proved by prosecution. Ext.14
reveals that it was received only on 11.11.2003 in the Sub
Treasury which would be evident from the official seals and
signatures. Therefore, there is neither any oral evidence nor
documentary evidence that any bills of the mother of P.W.1 had
come to Sub-Treasury Office, Pallahara prior to 11.11.2003. If
that be so, it is rightly contended by Mr. Das that prior to that
// 26 //
day, there was no occasion for the appellant to demand any
bribe from P.W.1. Moreover, the bills under Ext.14 indicates that
the appellant processed it and then it was put up before the
accountant who signed the bills on 12.11.2003 and later the bills
reached the Treasury Officer who also signed the bill on
14.11.2003. Thus, it pre-supposes that no further work was
pending with the appellant as on 14.11.2003 and he had
performed his part. P.W.5, the Treasury Officer also deposed
that the bills file dealt by the appellant was sent to the
accountant on 12.11.2003 and it was approved by him on
14.11.2003 on being placed by the accountant.
Therefore, I am of the humble view that there was no
occasion on the part of the appellant prior to 11.11.2003 to
demand bribe and there was no pending work of P.W.1 as on
14.11.2003 with the appellant to make demand of bribe.
Demand prior to the date of trap:
12. There is no corroborating evidence to P.W.1 that
Rs.1,500/- was demanded prior to the date of trap, out of which
Rs.400/- was paid and balance amount of Rs.1,100/- was there
to paid to the appellant as on the date of trap. P.W.1 has stated
that he was a supporter of Congress Party and was a Ward
Member and used to do social service and he had gone to Sub-
// 27 //
Treasury on some occasion even prior to the date of occurrence
in connection with the work of some other person in the
treasury. P.W.1 has stated that he had not complained about the
matter before the Treasury Officer or B.D.O. at any time and he
had not given any report to any other authority. The demand of
bribe from such a person when the bills were of his mother is a
doubtful feature. If the demand was made on 03.11.2003 and
even in spite of request of P.W.1, it was reiterated by the
appellant on 04.11.2003, it is not known as to why the F.I.R.
was lodged on 13.11.2003 i.e. after eight days. Since I have
already held that there is neither any oral evidence nor
documentary evidence that any bills of the mother of P.W.1 had
come to Sub Treasury Office, Pallahara prior to 11.11.2003 and
the bills (Ext.14) was received only on 11.11.2003 in the Sub
Treasury, the demand of bribe prior to the date of trap is not
acceptable.
Demand as on the date of trap:
13. P.W.1 has stated that when he met the appellant on
14.11.2003, the latter asked him if he (P.W.1) had brought the
money to which he (P.W.1) answered in affirmative. Though
P.W.1 stated that in presence of the vigilance officials, he was
given a small tape recorder which was kept in the inner side
// 28 //
pocket of his shirt, but neither the said tape recorder was seized
nor produced in Court during trial to be marked as a material
object. In the cross-examination, P.W.1 on the other hand has
stated that the appellant told him that his (P.W.19s) work had
already been done and he (appellant) was telling at the time of
giving money that he should give the cash subsequently.
P.W.3 who accompanied P.W.1 to act as overhearing
witness has not stated about the demand part and he has been
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 even failed to say whether he had been examined by
the I.O. He even failed to identify the appellant in the dock. The
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 a witness cannot be treated as effaced, or washed off the
record altogether. The same can be accepted to the extent that
his version is found to be dependable, upon a careful scrutiny
thereof if it is duly corroborated by some other reliable evidence
available on record.
// 29 //
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, there was demand made by
the appellant to P.W.1.
Acceptance of bribe by the appellant:
14. P.W.1 has stated that he brought out the tainted
money of Rs.1,100/- from his left side chest pocket and gave the
same to the appellant which was accepted by the appellant and
was kept it in his left side pocket of his wearing shirt and then
the appellant kept the money below some files in the Office steel
almirah. In the cross-examination, however P.W.1 has stated
that he himself had kept the money in the shirt pocket of the
appellant, but he did not remember the exact pocket in which he
kept the money. He further stated that the GC notes were
recovered from the pocket of the appellant. Therefore, the
evidence of P.W.1 in the chief examination is contrary to the
evidence in the cross-examination. The overhearing witness
P.W.3 is completely silent regarding acceptance of bribe money
by the appellant from P.W.1. The word 8acceptance9 connotes
receipt or acknowledgment with consenting mind. It is a
deliberate act by which one was willing to receive or
acknowledge something for the act/favour he intends to show.
// 30 //
Accidental, unintentional receipt or receipt under
misrepresentation or planting of money clandestinely without the
knowledge of the person or thrusting of money into the
possession of the accused would not be 8acceptance9 as is
required to constitute one of the ingredients of offence under
section 13(1)(d) or section 7 of 1988 Act. If as per the evidence
of P.W.1, he himself thrust the money into the shirt pocket of the
appellant, it cannot be said that the appellant voluntarily
accepted the money. Therefore, the prosecution has not
successfully established that on the date of trap, there was
acceptance of bribe money by the appellant from P.W.1.
Recovery of tainted money:
15. Though the T.L.O. (P.W.4) has stated that the
appellant pointed out the Almirah in which he had kept the
money and Magisterial witness G.C. Rath opened the Almirah
and found the tainted money were kept under a bunch of files,
but P.W.1 has stated that the GC notes were recovered from the
pocket of the appellant. P.W.8 has stated that on being asked to
the appellant where he had kept the tainted notes, the appellant
kept mum and P.W.1 and P.W.3 told that the appellant receiving
the bribe money kept the same in his shirt pocket first and then
he kept it inside the his Office Almirah and then witness Girish
// 31 //
Chandra Rath brought out the tainted notes from the said
Almirah which were kept there in between bunch of file.
However, P.W.8 admits that he had not stated before the
Vigilance Police that P.W.1 and P.W.3 told that the appellant
receiving the tainted notes kept in his shirt pocket first and then
he kept it inside the his Office Almirah and that Girish Chandra
Rath brought out the tainted notes from inside bunch of files
kept in the Almirah. As already stated, P.W.3 has not supported
the prosecution case and Girish Chandra Rath could not be
examined on account of his death. Therefore, the prosecution
has not adduced any clinching and consistent evidence that the
bribe money was recovered from the appellant.
Defence plea:
16. At this stage, the defence plea is required to be
considered carefully. The defence plea is that P.W.1 was claiming
himself to be a politician and he was usually coming to the office
of the appellant in connection with the works of the public prior
to the initiation of the case. He was in a habit to threaten the
staff of the treasury office for performing the work of the people.
The appellant on one occasion protesting such activities of P.W.1
warned him not to come to the office to pollute the official
environment for which there was hot exchange of words between
// 32 //
the appellant and P.W.1. The appellant had threatened him to
see in future.
P.W.1 admits that he was a supporter of Congress
Party and was a Ward Member and he had come to Sub Treasury
Office prior to the date of occurrence and he had
misunderstanding with the appellant in connection with the work
of some other person at the treasury.
The appellant being examined as D.W.1 has stated
that P.W.1 used to represent himself as a political person and he
was very often coming the office taking work of various people
prior to the initiation of the case and threatening the employees
of the office to perform the works of the people and he protested
the activities of P.W.1 for which there was hot exchange of
words between him and P.W.1.
The defence plea that on the date of occurrence
P.W.1 shook his hands and all on a sudden thrust some currency
notes into the chest pocket of the wearing shirt of the appellant
is corroborated by the evidence of P.W.1 who stated that he
himself kept the money in question in the shirt pocket of the
appellant.
It is not in dispute that an accused is not supposed to
establish his defence plea by proving it beyond reasonable doubt
// 33 //
like the prosecution but by preponderance of probability.
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.
The learned trial Court seems to have not considered
the defence plea of the appellant on the touchstone of
preponderance of probability.
Conclusion:
17. In view of the foregoing discussions, when the
prosecution has not successfully established the demand aspect
of bribe by the appellant beyond all reasonable doubt, the
// 34 //
acceptance of bribe money by the appellant and the recovery of
bribe money from the possession of the appellant is a doubtful
feature and moreover the defence plea put forth by the appellant
has been established by preponderance of probability, 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.
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 09th October 2023/PKSahoo/RKMishra/Sipun
Signature Not Verified
Digitally Signed
Signed by: RABINDRA KUMAR MISHRA
Reason: Authentication
Location: HIGH COURT OF ORISSA, CUTTACK
Date: 09-Oct-2023 14:41:05
