Damodar Mahalik vs State Of Odisha (Vigilance)
2023 Latest Caselaw 13413 Ori

     IN THE HIGH COURT OF ORISSA AT CUTTACK

                     CRLA No.161 of 2007

       An appeal under Section 27 of the Prevention of
Corruption Act, 1988 read with Section 374 of the Code of
Criminal Procedure.

      Damodar Mahalik                         ....         Appellant

                                         Mr. H.K. Mund, Advocate


                                   -versus-

     State of Odisha (Vigilance)              ....      Respondent

Mr. S.K. Das, A.S.C.

for Vigilance

CORAM:

JUSTICE A.K. MOHAPATRA _____________________________________________________ Date of hearing : 08.04.2022 | Date of Judgment: 31.10.2023 ______________________________________________________

A.K. Mohapatra, J. :

1. The appellant named hereinabove has preferred this

criminal appeal under Section 374 of Code of Criminal Procedure

read with Section 27 of the P.C. Act, 1988 thereby assailing the

judgment dated 20.3.2007 passed by the Special Judge Vigilance,

Berhampur in G.R. Case No.23 of 1999 (V) corresponding to T.R.

Case No.52 of 2001. By virtue of the impugned judgment the // 2 //

learned Special Judge Vigilance has convicted the appellant for

commission of offences chargeable under Section 7, 13(2) read

with Section 13(1)(d) of the Prevention of Corruption Act and as

such sentenced him to undergo R.I. for one year and to pay a fine of

Rs.2,000/- and in default to undergo R.I. for 3 months more under

Section 7 of the P.C. Act and further, sentencing the appellant to

undergo R.I. for 2 years and to pay a fine of Rs 5000/- in default to

undergo R.I. for 6 months more under Section 13(1)(d) read with

Section 13(2) of the P.C. Act.

2. The case of the prosecution, in brief, is that one Bibachha

Konhar (P.W.1) lodged a written report before the D.S.P. Vigilance,

Berhampur on 20.07.1999 inter alia alleging that he has been

working as Sarapanch of Baragaon Gram Panchayat since 1996.

The Panchayat has undertaken renovation work of a tank at

Parbatipur which includes repair of school building of Telikmal and

improvement of road from Borigobha to Sukapanga under the

Jawahar Rojgar Yojana at a cost of Rs.25,000/-, Rs.24,763/- &

Rs.34,662/- respectively. The Junior Engineer had measured the

work but the petitioner had not check measured the work. He has

further alleged that on his approach the appellant demanded a sum

of Rs.4,250/- as illegal gratification. The complainant had no // 3 //

alternative than to satisfy the aforesaid illegal demand and initially

the complainant agreed to pay a sum of Rs.2,000/- to the appellant

as bribe. Before making such payment to the appellant, the

informant approaches the Vigilance Police.

3. On the basis of aforesaid allegation, D.S.P. Vigilance,

Berhampur treated the written complaint as an F.I.R. and directed

S.L. Rao, Inspector of Vigilance to investigate into the allegation by

laying a trap. Simultaneously, the D.S.P. Vigilance forwarded a

report to the S.P. Vigilance, Berhampur. Finally, a trap was laid to

detect the crime. Accordingly, on 21.07.1999 the raiding party

proceeded to the office of the B.D.O., Kantamal after making

necessary preparation for laying the trap. The complainant and the

accompanying witnesses went ahead to the Block Office and at

about 4.30 P.M., the decoy informed about non-availability of the

appellant in the office and that he was available at his residence.

4. The decoy and the accompanying witnesses along with

raiding party went to the residence of the appellant which was

situated in the Block Colony, Kantamal. At about 4.50 P.M. the

accompanying witnesses gave a signal and on receipt of such signal

the member of the reading party rushed to the spot. The Inspector

Vigilance (P.W.6) disclosed his identity and challenged the // 4 //

appellant to have demanded and accepted bribe of Rs.2,000/- from

the complainant. It is further alleged that the appellant on being

asked, gave a nervous reply denying the allegation of acceptance of

bribe from the complainant. The decoy told that as per the direction

of the appellant he had kept the money in the right side drawer of

the table in the residential house of the appellant. The tainted

money and other documents were seized. Thereafter, on completion

of the investigation, charge-sheet was filed against the appellant

after obtaining the sanction.

5. To bring home the charges, the prosecution altogether

examined 8 witnesses out of which P.W.1 is the complainant,

P.W.2 is the accompanying witness, P.W.3 is the Junior Engineer,

P.W. 4 is the Assistant Engineer witness to the trap, P.W.5 is the

Deputy Secretary, G.A. Department who issued sanction order,

P.W.6 is the Inspector of Vigilance, P.W.7 is the I.O., P.W.8 is a

member of the trap party. So far, the defence is concerned, the

appellant took a plea of denial, however, he has not examined any

witnesses in support of his contention.

6. The learned Trial Court in course of the trial formulated

four points for determination in the trial. The first point was

obviously with regard to the demand of money. The second being // 5 //

whether the appellant accepted Rs.2,000/- from the decoy as

advance. The third point was whether the appellant had accepted

the bribe to show official favour to the decoy. The fourth and the

last point was whether the accused was a public servant and as to

whether there is valid sanction for launching prosecution against

him. After an elaborate discussion, the learned Trial court by virtue

of the impugned judgment has returned his findings against the

present appellant. So far the point No.1 is concerned, the learned

trial court has concluded that the statement of decoy with regard to

the factum of demand of bribe by the B.D.O. finds sufficient

corroboration from the evidence of other witnesses and

circumstances, therefore the prosecution has been able to establish

such charges against the appellant.

7. In reply to point Nos.2 & 3, the learned trial court has

opined that there is no reason to disbelieve the version of P.Ws.3 &

4 to the extent that they had stated before the court that the

measurement book at the time of preparation of the voucher was

verified by them. However, the accused-appellant had not done

check measurement till that day and he had not put his signature.

Further, it has been observed that it appears that the accused had put

his signature on 27.04.1999, however accepting the version of the // 6 //

other witnesses the learned Court below has come to a conclusion

that there is no reason to disbelieve the statement of such witnesses

to the extent that the measurement book had not been check

measured till 21.07.1999 and finally concluded that it is found that

the accused has shown check measurement in the measurement

book antedating the date to 27.04.1999. As such the prosecution has

established, beyond reasonable doubt, that the accused had accepted

Rs.2,000/- bribe from the decoy to show official favour.

8. With regard to point No.4 that is the grant of a valid

sanction by the Government, the learned Trial court has come to a

conclusion that the same has not been seriously challenged by the

accused-appellant. However, on perusal of the record coupled with

the evidence of P.W.5, the learned trial court has concluded that the

Govt. of Odisha has duly accorded sanction for launching the

prosecution against the accused-appellant being satisfied with

regard to the existence of prima facie case and as such it has been

held that the Government has accorded sanction after due

application of mind and accordingly there is no illegality in the

sanction order.

9. Heard, Shri H.K. Mund, learned counsel appearing for the

Appellant and Shri Sanjay Kumar Das, Additional Standing // 7 //

Counsel for Vigilance Department. Perused the L.C.R. as well as

the relevant records placed before this Court by either side.

10. Shri H.K. Mund, learned counsel appearing for the

Appellant, at the outset took this court through the evidence on

record in great detail to point out the fallacies in the prosecution

evidence. He further contended that the prosecution has examined

altogether 8 official witnesses and they have exhibited 19

documents marked as Exts.1 to 19 and material objects which were

marked as M.Os.I to VII. Although he categorically submitted that

no evidence whatsoever was adduced on behalf of the appellant in

support of his defence. By referring to the evidence of the witnesses

learned Counsel appearing for the Appellant at the outset submitted

that the prosecution has measurably failed in its attempt to bring

home the charges. Learned Counsel for the Appellant also

contended that neither the trap has been properly proved nor the

alleged demand, if any, has been established by adducing any

credible/ cogent evidence from the prosecution side. Therefore, he

submitted that the entire prosecution case is bound to fall through

and the consequential judgment of conviction by the learned trial

court be treated to be one based on mere surmises and conjectures.

// 8 //

11. It was also contended by Mr. Mund, learned counsel for the

appellant that the legal position is no more Res-Integra. The

foundation to establish an offence under section 7 read with

13(1)(d) of the P.C. Act is the proof that is beyond all reasonable

doubt of the demand/ request of a valuable thing or pecuniary

advantage by the public servant. In other words, in the absence of

proof of demand/ request from public servant for a valuable thing or

a pecuniary advantage, the offences under section 13(1)(d) cannot

be held to be established. In the aforesaid context, learned counsel

for the appellant referred to the judgment in Krishan Chander vs.

State of Delhi reported in 2016 Cri.L.J 1079. In the aforesaid

reported judgment the Hon'ble Supreme Court has categorically

held that the demand of illegal gratification is a sine qua non for

constitution of an offence under the provision of the P.C. Act. A

similar view has also been taken by this Court in Sanatan Dash vs.

State of Odisha (Vig.) in CRLA No.322 of 2003 decided on

21.10.2021.

12. It was further argued that the demand of bribe prior to the

laying of the trap has not been properly established by adducing

credible evidence and as such the said factum is highly doubtful. In

the F.I.R. the informant has stated that the appellant demanded the // 9 //

bribe on 15.07.1999. In his cross-examination the informant has not

mentioned about the date of demand of the bribe. On the contrary,

the informant in his deposition at Para-4 of his cross-examination

has categorically stated that 10 to 15 days prior to the trap the

accused-appellant had demanded the bribe. In such view of the

matter, the learned counsel for the appellant submitted that there

exists a lot of contradictions in the evidence of the informant and

further in the absence of any specific evidence with regard to

demand being made by the accused-appellant, the fact with

regard to demand of bribe has not at all been established by the

prosecution. The fact with regard to demand of bribe being a sine

qua non for the offences under the P.C. Act, the same is required

to be proved by adducing credible and unimpeachable evidence

that too beyond all reasonable doubt.

13. Furthermore, with regard to the same demand of bribe the

complainant has stated that he narrated the same before the

Official witnesses. However, such evidence of the complainant

remains uncorroborated rather contradicted by the Official

witnesses. Both P.Ws.2 and 4 who are witnesses to the trap did

not depose about any such narration by the complainant at the

time of preparation of trap. On such witnesses being declared // 10 //

hostile, they are confronted with their own statements about the

said facts. However, they have specifically denied to have made

any such statements. It was also contended by learned counsel

appearing for the appellant that P.Ws.6 & 8 being official

witnesses and were associated with the trap are interested

witnesses and as such their evidence is required to be scrutinized

very cautiously and carefully. Moreover, the evidence of such

witnesses cannot be used to corroborate the evidence of decoy.

As the same would not be safe at all in a case of the present

nature.

14. Learned counsel appearing for the Appellant, in course of

his argument, further highlighted the fact that the factum of demand

of bribe is seriously disputed. He further questioned the locus of the

complainant/ decoy to lodge the report in the present case. In the

said context, it was further submitted that the complainant as

Sarapanch was in no way personally connected with the execution

of work in question as he has stated in the F.I.R. that the works

were being done departmentally. On the contrary, during

preparation of the trap proceeding he has stated before the P.W.6

and P.W.8 that he was an executant of the works. Similarly, in his

deposition before the Court the complainant has stated that three // 11 //

village committees have executed the works. In para-4 of his cross-

examination the P.W.1 has further stated that he had informed the

village committee leaders about the demand of bribe. Learned

counsel for the Appellant, at this juncture submitted that the version

of P.W.1 is not at all trustworthy as he has been given so many pre-

varicating statements at different stages and moreover, such village

committee leaders have not been examined by the proseuction. It

was also contended that on examination of Ext.15, 16 and 17 which

are the work orders issued by the competent authority, the same

reveals that one Gobardhana Rana, who was then working as the

Secretary of the Gram Panchayat was the executant of all three

works. Thus, the P.W.1 had no knowledge about the works or he

had intentionally made a false statement before the Court. He

further specifically contended that in the entire case there is no

demand of any bribe by the above named executant of work order,

namely, Gobardhana Rana, who is the actual executant of the work

and as such he is entitled to payment, if any, to be made against

such work.

15. In the context of demand of bribe, learned counsel for the

Appellant referred to the judgment in the case of Madan Mohan

Singh vs. State of Uttar Pradesh reported in AIR 1954 SC 637. In // 12 //

the said judgment the Hon'ble Supreme Court has held that the

question whether any motive for payment at all existed is certainly

a relevant and materials fact for consideration. Similarly, learned

counsel for the Appellant also relied upon the case in Rabindranath

Prusty vs. State of Odisha reported in 1984 OLR (NOC) 21,

wherein this Court has held that there was no occasion for the

accused to demand bribe and accordingly, the case of the

prosecution was disbelieve. He also referred to the case of Panalal

Damodar Rathi vs. State of Maharashtra reported in AIR 1979 SC

1191, wherein the Hon'ble Apex Court has held that the

complainant in a case of bribery is in no better position than

accomplice or abettor and that his testimony cannot be relied

without material corroboration. Similarly, in the case of

Debananda Dash vs. State of Odisha reported in (2011) 2 OLR

603, this Court has held that law is well settled that in a trap case,

the evidence of a decoy has to satisfy a double test. The evidence

must be reliable and if this test is satisfied, it must be sufficiently

corroborated.

16. Learned counsel for the Appellant further urged that the

learned Special Judge although has held that as per law the Decoy

is in the nature of an accomplice and sufficient corroboration to the // 13 //

evidence of the decoy is required, yet without there being any

corroboration to the evidence of the decoy regarding demand of

bribe at the trap, the learned Court below has accepted the evidence

of decoy. It was also contended that the P.W.2, who is an over-

hearing witness has not corroborated the version of the decoy as he

has stated in his evidence that some conversations took place

between the complainant and appellant and that the P.W.2 has not

conclusively stated that the appellant had demand any bribe. On the

contrary, in para-3 of the deposition, the P.W.2 has stated that he

had not seen the demand or acceptance bribe by the accused-

appellant. Therefore, the learned Trial Court has committed a gross

illegality in accepting the version of P.W.1 and 2.

17. It was also argued before this Court by the Counsel for the

appellant that the recovery of tainted money from the drawer inside

the office room of the accused at his residence cannot be utilized as

an incriminating circumstance against the appellant. Inasmuch as

there is no credible material to show that the appellant had any

knowledge of the said fact that the tainted money was kept in his

drawer.

18. Further, referring to the evidence of P.W.2 it was also

contended that the P.W.2 has stated that after keeping the M.B.

// 14 //

Book on the table of the B.D.O. he went out to call the J.E. of the

Block. Therefore, there was ample opportunity on the part of the

decoy to plant the tainted money in the drawer of the appellant. In

the aforesaid context, learned counsel for the appellant referred to

the case of Dr. Sushil Kumar Pati vs. State of Odisha (Vig.)

reported in (2018) 71 OCR 436 and submitted that the tainted

money was recovered from a pen stand placed on the table of the

appellant doctor. In the facts and circumstances of that case, this

Court had held that there was ample opportunity on the part of the

decoy to plant the tainted money in the pen stand in the temporary

absence of the appellant and accordingly it was held that the

recovery of the tainted money did not prove the acceptance of

bribe.

19. Similarly, reliance was also placed on the judgment in the

case of State of Kerala vs. C.P. Rao reported in (2011) 6 SCC 450,

wherein the Hon'ble Apex Court observed that mere recovery of

tainted money, divorced from the circumstances in which it is paid,

is not sufficient to convict the accused when the substantive

evidence in the case is not reliable. In the facts and circumstances

of the present case keeping in view the evidence adduced from the

side of the prosecution learned counsel for the appellant submitted // 15 //

that no presumption under Section 20 of the Prevention of

Corruption Act, 1988 could be drawn as there is no legal evidence

that the tainted money was recovered from the possession of the

accused with his knowledge. In the said context, learned counsel for

the appellant placed his reliance on the Constitution Bench

judgment of the Hon'ble Supreme Court in the case of C.I. Emden

vs. State of U.P. reported in AIR 1960 SC 548.

20. In the aforesaid judgment, the Hon'ble Supreme Court has

observed "what the prosecution has to prove before asking the

Court to raise a presumption against an accused person is that the

accused person has received a gratification other than legal

remuneration; if it is shown that the accused received the stated

amount and that the said amount was not legal remuneration then

the condition prescribed by the said section is satisfied." On the

question of presumption under Section 20 learned counsel for the

appellant also relied upon the judgment in the case of V. Venkata

Subbarao vs. State reported in (2006) 13 SCC 305 as well as in the

case of S. V. Kameswar Rao and anr. vs. The State reported in

AIR 1991 SC 2085. Reliance was also placed on a judgment in the

case of State of Maharashtra vs. Dyaneshwar Laxman Rao

Wankhde reported in (2009) 15 SCC 200. Thus it was argued that // 16 //

the learned Special Judge has erred in law in raising a presumption

under Section 20 of the P.C. Act in order to find the appellant guilty

and as such, the impugned judgment is vitiated and accordingly

unsustainable in law.

21. Mr. Sanjay Kumar Das, learned Standing Counsel

appearing on behalf of the Vigilance Department, on the other hand

contended that the present appeal is to be decided within the four

corners of the four points framed by the learned Trial Court while

delivering the impugned judgment. While supporting the judgment

and the order of sentence passed by the learned Special Judge,

learned Standing Counsel submitted that the trial Court has rightly

convicted and sentenced the appellant. Accordingly, it was also

contended that the impugned judgment and order of sentence does

not call for any interference by this Court in the present appeal.

22. Learned Additional Standing Counsel in course of his

argument drawing attention of this Court to the evidence of P.W.1,

the decoy, submitted that the decoy is none other than the informant

himself and he is the Sarpanch of Bargaon G.P. since the year 1996

and was continuing as such while he deposed before the Court. The

decoy-complainant has fully supported the F.I.R. story in his

evidence. He further contended that the evidence of the // 17 //

Complainant clearly establishes the fact of demand of bribe money

of Rs.2,000/- by the accused and voluntary acceptance of such

tainted money in the residential office of the appellant and that such

tainted money was recovered from the lower table drawer of the

accused which has been admitted by the appellant in his accused

statement against question No.22 as true. He also submitted that

although the work was completed and the J.E. had measured the

three works executed, however, the appellant did not cross-check

the same for two months and was continuously demanding

percentage.

23. Further, referring to evidence of P.W.3 and P.W.4 it was

contended by learned Additional Standing Counsel that being

official witnesses they have corroborated the evidence of P.W.1 to

the extent of disclosure about the demand of bribe money by the

accused, so also recovery of the tainted money from the lower table

drawer in the residential office of the accused. Both P.W.3 and 4

have proved their signatures in the preparation report Ext.2 and the

detection report of Ext.3. He further raised a question before this

Court as to why two Government servants i.e. P.W.3 and 4 would

depose against another Govt. Servant-the present appellant without

any rhyme and reason. He also contended that the P.W.6, P.W.7 // 18 //

and 8 who are all Government Servants and official witnesses in

this case have corroborated each others evidence by supporting the

claim and evidence of P.W.1, the decoy.

24. In course of his argument, learned Additional Standing

Counsel elaborately read out the evidences recorded by the trial

court of all official witnesses. Specifically referring to evidence of

P.W.8 it was stated that he has stated in his evidence that the M.B.

Book was verified and it was found that there had been no check

measurement by the appellant relating to the work done by the

decoy. Similarly, the P.W.8 in his evidence has stated that the I.O.

also seized that paper table on verification of the M.B. Book and it

was found that the accused had put his signature at page-142 by

antedating the date which has been marked as Ext.19/2. Further, it

was stated that in the cross-examination no question was put to the

P.W.8 for the defence side to impeach the credibility of his

evidence regarding antedating of the signature.

25. Learned Additional Standing Counsel further submitted

before this Court that the contentions of the learned counsel for the

appellant to the extent that much prior to the date of lodging of the

F.I.R. by P.W.1, the entire payment against three works orders have

been made to the executant of the work, it was submitted that the // 19 //

accused who is a responsible B.D.O. has in his accused statement,

recorded on 28.02.2006, nowhere whispered a single word or a

sentence about such payment against the three executed work by

P.W.1. He further contended that such a point is being raised for the

first time during hearing of the appeal and as such the same should

not be entertained by this Court. He further contended that it has

been specifically admitted by the appellant in his accused statement

that it was P.W.1, the decoy, who had done the three repair works.

26. In view of the aforesaid evidence on record and the

surrounding facts and circumstances under which the tainted money

was recovered from the table drawer of the residential office of the

appellant, learned Additional Standing Counsel submitted that such

evidence clearly proves the case of the prosecution and as such the

trial court has not committed any illegality in either drawing the

presumption under Section 20 of P.C. Act as well as holding the

appellant guilty for commission of the alleged offences. With

regard to grant of sanction, learned Additional Standing Counsel

submitted that there was a valid sanction which is supported by the

evidence of P.W.5. In such view of the matter, learned Additional

Standing Counsel submitted that the present appeal is devoid of

merit and the same should be dismissed.

// 20 //

27. Having heard the learned counsels appearing for the

respective parties and on a careful examination of the entire

evidence on record as well as other materials produce before this

Court and further taking into consideration the Lower Court

Record, this court is of the opinion that the entire issue involved in

the present appeal boils down to one crucial point i.e. as to whether

the appellant had demanded the bribe to show official favour to the

complainant? Moreover, this Court also agrees with the catena of

judgments laying down the proposition that the motive for giving

bribe and demand for such bribe is a sine qua non for coming to a

conclusion that the accused is guilty of commission of an offence

under the P.C. Act. On a careful analysis of the legal position as

well as on a careful scrutiny of the judgments relied upon by the

learned counsel for the appellant which have been specifically

referred to hereinabove, this Court is of the considered view that to

establish the allegation made against the appellant, the prosecution

is duty bound to establish the factum that, in fact, there was a

demand for money/ request for material thing to show favour to the

complainant in the present case. Moreover, such demand has

established by adducing credible evidence and not merely on the

testimony of the decoy/ complainant as is the case in the present

appeal. This Court is of the further view that mere acceptance of the // 21 //

uncorroborated evidence of the decoy that there was a demand of

bribe, the same would not be safe and fruitful as there is every

possibility of an accused being victimized in the hands of a

complainant/ decoy by making false accusation and supporting the

same in his evidence before the Court. Therefore, the evidence of

such witness (P.W.1) needs to be corroborated by the independent

witnesses, who were present at the spot of occurrence.

28. On a careful analysis of the evidence on record, this Court

observed that on the basis of the complaint lodged by the P.W.1 a

trap was laid, accordingly on the date of occurrence the raiding

party went to the office of the appellant where the appellant was not

present. On getting information that the appellant is available at his

residence, the raiding party decided to go to the residence of the

appellant. At the residence of the appellant the decoy was sent first.

It is stated by the over-hearing witness i.e. P.W.2 that he had over-

heard some conversations between the decoy and the appellant.

However, on a scrutiny of his evidence, this Court is not satisfied

with regard to specific evidence in connection with the demand of

bribe by the appellant. As because, the P.W.2 who was the closest

person to the P.W.1 at the time of trap has categorically submitted // 22 //

that he heard some conversations, however he has not categorically

stated as to whether the appellant had made any demand for bribe.

29. Moreover, the surrounding facts and circumstances reveal

that the money was recovered from the lower table drawer of the

residential office of the appellant. Further, it appears that the

appellant was absent from residential office for some time as he

went inside and came back. Therefore, the possibility of planting

the money in the table drawer of the appellant by P.W.1 cannot be

altogether ruled out. The most important witness who was supposed

to corroborate the evidence of P.W.1 has failed to do so in so many

terms. Thus, in the ultimate analysis, this Court is of the considered

view that demand of bribe has not be established by adducing

cogent and reliable evidence which would singularly point to the

fact that there was a demand for bribe by the appellant to show

official favour.

30. During scrutiny of the evidence adduced from the

prosecution side, this Court found that there are a lot of latches in

the evidence of such prosecution witnesses. Although it is alleged

that the M.B. Book was not signed by the appellant, however on

examination of exhibits it appears that the M.B. Book has in fact

been signed by the appellant. Further, on verification of the work // 23 //

orders which have been marked as exhibits, it is revealed that the

work order was in fact issued in favour of one Gobinda Rana, who

happens to be the Secretary of Gram Panchayat and not the P.W.1,

the decoy, as claimed by him. Some evidence is also coming forth

that some amount has been paid as against the aforesaid work

assigned to the above named Gobindra Rana.

31. This Court observed that the trial court while delivering the

impugned judgment has failed to block the loopholes in the

prosecution evidence by referring to any credible evidence.

Moreover, the presumption raised under Section 20 of the P.C. Act

becomes doubtful in the sense that the foundation of a case of this

nature is the establishment of demand of bribe by the Government

Officer to show official favour beyond all reasonable doubt and the

same is required to be established by adducing credible and

unimpeachable evidence solely pointing to a single fact that there

was a demand of bribe or any material or favour to receive some

favour of the Government Officer in return. Since this Court has

already held that the demand of bribe has not been conclusively

established by adducing credible/ unimpeachable evidence, the

conduct of the Special Judge in raising presumption under Section

20 is absolutely illegal and uncalled for.

// 24 //

32. Upon a careful examination of the record, this Court

observed that both P.W.6 and 8 deposed before the Court that the

complainant has stated that the appellant had demanded bribe for

check measurement at the time of preparation. On a careful

examination of their evidence, this Court found that the same is not

trustworthy and that the appellant cannot be convicted solely on the

basis of such statement of P.W.6 and 8. It also appears from the

record that the record of the three work orders have been marked as

Ext.15, 16 and 17 respectively. A close look at such Ext.15m 16

and 17 would reveal that after conclusion of the work, bills were

raised by the executant. It further reveals that such bills were duly

sanctioned and paid to the executant. This Court is really astonished

to observe that although the complainant who claims to be the

executant, however, the record reveal that one Gobinda Rana, the

Secretary of the G.P. is the executant, who had received the

payment. This aspect of the matter has been completely overlooked

by the learned trial court while passing the impugned judgment

thereby convicting the appellant under the alleged sections.

33. In view of the aforesaid analysis of facts as well as keeping

in view the settled legal position, this Court is inclined to hold that

the prosecution has failed to establish the charges against the // 25 //

appellant by adducing cogent and reliable evidence. Thus, the

appellant is entitled to the benefit of doubt and accordingly, this

Court holds that the impugned judgment and the order of sentences

are unsustainable in law and accordingly the same are hereby set

aside. Ultimately the appeal is allowed. However, there shall be no

order as to cost.

(A.K. Mohapatra) Judge Orissa High Court, Cuttack The 31st of October, 2023/ Anil.

Signature Not Verified Digitally Signed Signed by: ANIL KUMAR SAHOO Designation: Junior Stenographer Reason: Authentication Location: High Court of Orissa Date: 31-Oct-2023 13:48:09