Orissa High Court
2 vs Prakash Kumar Sinha .... Opposite Party on 1 July, 2024
Author: V. Narasingh
Bench: D.Dash, V. Narasingh
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No.107 of 2018
In the matter of an Appeal under section 378(2) of the Code of
Criminal Procedure,1973 from the judgment of acquittal dated
08.09.2017 passed by the learned Special Judge,(CBI) Court No.II,
Bhubaneswar in T.R. No.34 of 2010 arising out of R.C. No.9(A) of
2010.
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Republic of India(CBI) .... Petitioner
-versus-
Prakash Kumar Sinha .... Opposite Party
For Petitioner - Mr. Sarthak Nayak, Spl. P.P Adv
(For CBI)
For Opposite Party - Mr. R. Agrawal,Ms. R. Rajgarhia,
Mr. A. Dash, Mr. Das, Mr. P.K
Behera Adv.
CORAM:
MR. JUSTICE D.DASH
MR. JUSTICE V. NARASINGH
Date of Judgment:01.07.2024
V. Narasingh, J.
1. Heard Mr. S. Nayak, learned counsel for the Petitioner
and Mr. R. Agrawal, learned counsel for the Opposite Party.
2. This is an application filed under Section 378(2) of the
Cr.P.C., 1973 by the Republic of India(CBI) seeking leave to
appeal against judgment for acquittal dated 08.09.2017 passed
by the learned Special Judge,C.B.I-II, Bhubaneswar in TR
No.34 of 2010 (RC No.9(A)-2010), acquitting the Opposite
Party, Head clerk, Flash Butt welding Plant(FBWP), South
Eastern Railway, Jharsuguda from the accusation of
committing offences under Section 7 and 13(2) read with
Section 13(1)(d) of the Prevention of Corruption Act, 1908 on
account of allegation that the Opposite Party-accused
demanded and accepted illegal gratification of Rs.5,000/-
(Rupees Five Thousand) from the complaint, abusing his
position as a public servant to process the pension papers of
the father of the complainant(Kapindra Kishan- P.W.9), who
was working as Khalasi.
3. It is the case of the prosecution that the Kapindra
Kishan, father of the complainant was working as a Khalasi in
the Flash Butt Welding Plant (FBWP), South Eastern Railway,
Jharsuguda and since the date of retirement of the father of the
complainant-P.W.9 was on 31.05.2010 and he was illiterate,
the complainant contacted the accused, who was working as a
Head Clerk on 04.03.2010 for settlement of retirement dues
and thereafter on 08.03.2010 at about 11 a.m., he again met the
accused. On which date the accused gave him a list of the
documents to be submitted for retirement dues claim and
assured him that he will assist in the early processing of claim
his father of retirement dues. After arranging the documents, it
is the case of the prosecution that when the complainant went
to the office of the accused on 06.04.2010 after checking the
papers the opp. Party demanded illegal gratification of
Rs.20,000/- for early processing of the matter.
4. And, when the complainant express inability to pay
such huge amount, the Opp. party accused told him to pay
Rs.5,000/-(Rupees Five Thousand)as upfront payment. On
08.04.2010 in his residence. After which he process the matter
and the accused is also stated to have told the
complainant(P.W.9) to pay the rest of the amount of Rs.
15,000/- before 30.04.2010.
5. On 06.04.2010 the complainant- P.W.9 stated to have
lodged the complaint with the Superintendent of Police CBI
Rourkela Unit and basing upon the same, the Superintendent of
Police, CBI, Bhubaneswar registered R.C. Case No.9(A)/2010
on 07.04.2010 and instructed inspector Mr. S.B. Mishra to take
up the investigation.
6. During the course of investigation, P.W.10-Trap
Laying Officer(TLO) arranged two independent witnesses,
namely, Sri Mahindra Kumar Pradhan-P.W.1, Grade-I Clerk,
Office of the General Manager, MCL, Lakhanpur Area and Sri
Sudhansu Chandra Naik- P.W.2, Senior Personal Assistant,
Office of Area Personal Manager, MCL, IB Valley Area,
Brajaraj Nagar in the appointed date i.e. 08.04.2010 at 5.30
p.m. all the team members as well as the complainant
assembled at BSNL Inspection Quarters at Jharsuguda and pre-
trap exercise was under taken. The TLO-P.W.10 Mr. Mishra
explained the process. The complainant- P.W.9 handed over
the alleged bribe amount of Rs.5,000(Rupees Five Thousand)
in the form of three numbers of Rs.1000/- and twenty numbers
of GC notes of the denomination of Rs.100/-. The same were
smeared with phenolphthalein powder.
7. The procedure of noting down the number and
denomination was duly followed and paper was handed over to
witness Sri S.C. Nayak- P.W.2 for future reference. A pre-trap
memorandum was also prepared and specific instruction was
given to P.W.9 to only handover the money on being
demanded. And the independent witnesses P.W.1, who was
asked to accompany and to overhear the conversation and the
P.W.9, the complainant was asked to give the pre-determined
signal after the transaction is over.
8. It is submitted that the members of the Trap Laying
reached near the house of the accused and took their pre-
determined positions near the residence. Then the complainant
went inside the Railway quarter of the accused and once he
having entered the house, P.W.1 stationed himself at the
entrance of the door of the house taking advantage of darkness
of the evening.
9. It is the case of the prosecution that the accused
offered the chair to the complainant and immediately enquired
whether he had brought sum of Rs.5000/- as he had asked for
and the complainant answered in the affirmative. The accused
demanded the money by extending his right hand towards the
complainant and the complainant brought out the bribe money
of Rs.5000/- from his shirt pocket and handed it over to the
accused. And he accepted the same with his right hand and
after counting kept the same in his in left side Kurta pocket.
10. It is the stated by the prosecution that on receipt of
such amount of bribe, the accused assured the complainant that
his father's pension papers would be processed soon and his
father would get his retirement benefits immediately on the
date of his retirement. The entire conversation was seen and
overheard by the independent witness Sri M.K. Pradhan-
P.W.1.
11. On conclusion of the exercises of demand and
payment as noted above on receiving the prearranged signal,
the trap team members being led by the I.O.- Shri S.B.
Mishra(P.W.10) entered inside the drawing room and caught
hold the accused. Shri S.B. Mishra-P.W.10 reveled his identity
and also asked the identity the accused, who identified himself
as Prakash Kumar Sinha and on being accosted with the
factum of demand and acceptance of bribe from the
complainant, the accused is stated to have fumbled and said
that he has committed a mistake.
12. Thereafter the left and right hand of the accused were
washed with Sodium carbonate solution with water separately
and the liquid turned pink. The same was kept in two bottle
after following the due procedure marked as M.O-II and III.
Independent Witness-P.W.2, Sri S.C. Nayak checked the left
side of Kurta pocket and found three numbers of Rs.1000/- and
twenty numbers of Rs. 100/-Government Currency notes and
on being asked the P.W.2 compared the notes with serial
numbers mentioned in the pre-trap memorandum and the same
tallied.
13. Thereafter the inner portion of left side pocket of
Kurta worn by accused was washed in sodium carbonate
solution and same also turned to pink and such pink solution
was preserved in an another bottle marked as M.O.4.
14. The accused was arrested, and the house of the
accused was searched, and search list Exhibit-15 was prepared.
The post-trap memorandum was prepared and signed by all.
Thereafter, the office of the accused was also searched and the
documents in respect of retirement benefit of father of the
complainant was seized under seizure list Exhibit.3.
15. The bottles containing the hand wash liquid were sent
to C.F.S.L., Kolkata for opinion. The chemical analyst report
was received vide Exhibit.12 and on obtaining sanction for
prosecution of the accused charge sheet-Exhibit.11 was
submitted. Basing upon which cognizance was taken and the
Opposite Party faced trial.
16. The plea of defence was one of denial of demand and
acceptance of bribe and further defence plea was that the
accused never looked after the pension paper of retired
employees and a further specific ground of defence was
advanced that the father of the complainant was working in the
said office as khalasi and he had taken Rs.20,000/- as loan
from the accused in the month of November 2009 and in spite
of repeated request he was not returning the same and several
visits of the Opposite Party to the house of the accused for
recovery of same also proved futile. After persistent demand
the father of complainant-P.W.9 had assured the accused he
will return the said hand loan within a short period and the
amount of Rs.5000/- as recovered from him was on account of
part payment of the previous hand loan of Rs.20,000/-.
17. To drive home the charge the prosecution examined
11 witnesses, their details run thus:
P.W.1 over hearing witness to the trap and also witness to
transaction of bribe money
P.W.2 independent witnesses to the trap
P.W.3 Assistant Engineer, FBWP, SE Railway.
P.W.4 Personnel Officer.
P.W.5 Sanctioning Authority.
the P.W.6 Deputy Chief Engineer.
P.W.7 Chemical Analyst
P.W.8 Head Clerk, witness to the seizure.
.9 is P.W.9 Complainant.
P.W.10 Trap Laying Officer, and I.O.
P.W.11 Investigating Officer submitting the charge sheet.
18. Defence exhibited one Prahalad Kolet as D.W.1.
Exhibits were marked on behalf of the prosecution as well as
defence and of which Exhibit.10 order relating to distribution
of work is the most significant one. Documents were also
exhibited by the defence marked as Exhibit form in Booklet-A
and one Exhibit marked as 'X' i.e. letter dated 08.04.2010
allegedly signed by Kapindra Kishan, father of P.W.9-
complainant.
19. M.Os-II to IV are the bottles containing left and right
side hand wash of the accused and pocket wash of Kurta of the
accused.M.O.V is the sealed envelope containing tainted
money.
20. On going through the evidence on record, the learned
Trial Court in the background of the plea of defence that the
accused was not entrusted with any work towards the
settlement of retirement going unchallenged and also recorded
the finding that the accused has been able to successfully
discharge the presumption under Section-20 of the Prevention
of Corruption Act 1988, directed acquittal of the accused. Such
judgment of acquittal assailed, inter alia, on the ground of
perversity on the face of it.
21. Learned counsel for the Petitioner (CBI) Mr. Nayak
submitted with vehemence that the appreciation of evidence as
has been made by the Trial Court is patently perverse since on
analysis of the same the only conclusion that can be arrived at
being one of guilt of the Opposite Party. And, he relied on the
judgment of the Apex Court of Neeraj Dutta V. State
(Government of NCT Delhi), reported in, (2023) 4 SCC 731
& 2023 SCC online SC 280. He, therefore, contended that the
final outcome in the trial acquitting the accused cannot be
sustained and is liable to be interfered with.
22. Learned counsel for the accused, who appeared
pursuant to the notice for condonation of delay in filing the
present CRLLP opposes the prayer to grant leave. He submits
that in acquitting, the learned Trial Court meticulously
analyzed the evidence of P.W.1, shadow witnesses, the
complainant-P.W.9 and the Trap Laying Officer- P.W.10 and
finding that their evidence did not get corroboration from the
complaint Exhibit.13 and pre and post trap memorandum
Exhibits-2 &6 respectively, the trial Court arrived at the
finding that even the version of the prosecution, as regards the
demand of bribe on 06.04.2010 and the date of trap on
08.04.2010, was also not proved against the accused.
He further drew the attention of this Court to the
deposition of D.W.1 to the effect that the father of the
complainant (P.W.9) had taken loan from the accused-
Opposite Party to the tune of Rs.20,000/-(Rupees Twenty
Thousand) and the alleged amount of illegal gratification as
demanded was in fact towards clearance of such loan.
23. The evidence D.W.1 withstood the scrutiny of cross-
examination.
24. In Neeraj Dutta V. State (Government of NCT
Delhi), (Supra) ex facie the Constitution Bench judgment of
the Apex Court answered the reference in the following terms.
"xxx xxx xxx
90. Accordingly, the question referred for
consideration of this Constitution Bench is answered
as under:
In the absence of evidence of the complainant
(direct/primary, oral/documentary evidence) it is permissible
to draw an inferential deduction of culpability/guilt of a public
servant under Section 7 and Section 13(1)(d) read with Section
13(2) of the Act based on other evidence adduced by the
prosecution.
xxx xxx xxx"
24-A. In terms of the judgment of the Constitution Bench the
individual case was decided in the other judgment relied upon
by the learned counsel for the CBI i.e. (2023) SCC online SC
280.
24-B. It is apposite to note here the said judgment was
against the judgment of conviction which was ultimately set
aside, in the facts of the said case, taking note of the principles
decided by the Constitution Bench in evaluating evidence, in
the event complainant cannot be put in the witness box, inter
alia, on account of death.
25. On careful analysis both the judgments have no
bearing in the matter of scrutiny of judgment of acquittal, as in
the present case.
26. One of the vital aspects which would have sealed the
case for the prosecution was the testimony of the father of the
complainant (P.W.9), the employee for processing of whose
pension papers the alleged gratification to the tune of
Rs.20,000/-(Rupees Twenty Thousand) was demanded.
27. There is nothing on record to indicate as to why such
vital witness kept away from the witness box. In the absence of
any explanation to the said effect the entire case of the
prosecution from the beginning gets pushed into thick cloud
and the onus is squarely on the prosecution to dispel the same
which they have signally failed to discharge.
28. On close scrutiny of testimony of the complainant
(P.W.9) and TLO (Trap Laying Officer-P.W.10) this Court is
in agreement with the finding of the learned Trial Court, that
they are not reliable witness.
29. In this context it is apt to refer to the evidence of
P.W.10, paragraph-14 of cross-examination.
"xxx xxx xxx
I cannot say if the complaint received at Rourkela Office
is registered as an F.I.R. Ext.13 the complaint of this case is
not registered at Rourkela CBI, Unit office. In Ext.13 there
is nothing that it was received at Rourkela CBI unit office.
During the relevant period one Kabi Babu was working at
Rourkela CBI office. There is nothing in Ext.13 that Kabi
Babu had received the same at Rourkela Office. I had not
directed my investigation to know how Ext.13 the F.I.R was
received at Bhubaneswar CBI office.
xxx xxx xxx"
30. The guiding principles in an Appeal against acquittal
and the power of the Appellate Court to "re-appreciate, review
or reconsider evidence and interfere with an order of acquittal
was restated in Mrinal Das & Others Vrs. State of Tripura,
(2011) 9 SCC 479. In the said judgment the Supreme Court
quoted with approval, inter alia, paragraph-42 of the judgment
of the Apex Court in the case of Chandrappa and Others vs.
State of Karnataka reported in (2007) 4 SCC 415.
"42.....The following general principles regarding powers of the
appellate court while dealing with an appeal against an order of
acquittal emerge:
(1) An appellate court has full power to review,
reappreciate 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 emphasise 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.
(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 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.
(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."
31. On careful examination, this Court finds absolutely no
justifiable reason to differ from the view as expressed by the
learned Trial Court that the evidence of P.W.9 (the
complainant-decoy) do not inspire confidence in the absence of
any independent corroboration and also keeping in view the
deposition of D.W.1. And, the prosecution without any rational
not examining the most vital witness, as rightly noted by the
learned Trial Court, the father of P.W.9 for processing of
whose pension papers the alleged bribe was given. As such,
this Court does not find any infirmity in the appreciation of
evidence by the learned Trial Court so as to warrant
interference.
32. Accordingly, leave to prefer appeal stands rejected.
(V. Narasingh),
Judge.
Mr. D.Dash, J. I Agree.
(D. Dash),
Judge.
Orissa High Court, Cuttack
Dated the 1st July, 2024/ Soumya
Signed by: SOUMYA RANJAN SAMAL
Location: High Court of Orissa
Date: 09-Jul-2024 11:22:23
