[Cites 7, Cited by 0]
Orissa High Court
(An Appeal From The Judgment And Order ... vs State Of Odisha (Vig.) .... Opp. Party on 19 December, 2025
Author: Chittaranjan Dash
Bench: Chittaranjan Dash
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.129 of 2005
(An Appeal from the judgment and order dated 04.03.2005 passed
by the learned Special Judge (Vigilance) in T.R. Case No.47 of
1995)
Sashibhushan Bhoi .... Appellant
Ms. S. Singh, Advocate
-versus-
State of Odisha (Vig.) .... Opp. Party
Mr. M.S. Rizvi, A.S.C. (Vig.)
CORAM:
THE HON'BLE MR. JUSTICE CHITTARANJAN DASH
Date of Hearing & Date of Judgment: 19.12.2025
Chittaranjan Dash, J.
1. This appeal is directed against the judgment and order dated
04.03.2005 passed by the learned Special Judge (Vigilance),
whereby the Appellant was convicted for the offence punishable
under Section 7 of the Prevention of Corruption Act, 1988
(hereinafter in short "P.C. Act"), and was sentenced to undergo
rigorous imprisonment for a period of six months and to pay a fine
of Rs.1,000/- (Rupees One Thousand), in default whereof to
undergo further rigorous imprisonment for a period of one month,
in T.R. Case No. 47 of 1995.
2. The prosecution case, as emerges from the materials on
record and the evidence unfolded before the learned trial Court, is
that the Appellant, while functioning as a public servant in the
capacity of Amin attached to Badrama R.I. Circle under Jamankira
Police Station in the district of Sambalpur, was approached by the
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
Complainant, P.W.1, for execution of official work relating to
demarcation of land. It is alleged that the Appellant demanded a
sum of Rs.500/- as illegal gratification for performing the said
work. Finding no alternative, the Complainant is stated to have paid
an amount of Rs.250/- to the Appellant on 29.07.1994 and
requested him to execute the work. However, the Appellant
allegedly insisted upon payment of the balance amount of Rs.250/-
and did not carry out the work unless the same was paid. Being
aggrieved by the demand for illegal gratification, the Complainant
reported the matter before the Vigilance Police, Sambalpur.
Consequently, a trap was laid, pursuant to which the Appellant was
allegedly caught red-handed while accepting a bribe amount of
Rs.250/- from the Complainant.
3. Upon receipt of the complaint, the same was registered as
Exhibit-1. On 31.07.1994, at about 7.00 a.m., the pre-trap
preparation commenced at the Vigilance Office. During the course
of preparation, the Complainant was introduced to the official
witnesses and other vigilance officials present, before whom he
stated that he was to pay an amount of Rs.250/- to the Appellant, as
demanded by him on that very day. The Complainant produced two
currency notes of Rs.100/- each and one currency note of Rs.50/-,
which were proposed to be used in the trap. The numbers of the said
currency notes were noted down by P.W.2, Gyanaranjan Pradhan.
Thereafter, phenolphthalein powder was applied to the said
currency notes and a demonstration was conducted by preparing a
colourless sodium carbonate solution. When P.W.2 dipped his
fingers in the solution, there was no change in colour; however,
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
upon touching the phenolphthalein powder and again dipping his
fingers in the solution, the solution turned pink, which was duly
labelled and sealed.
Thereafter, the tainted currency notes were kept in the shirt
pocket of the Complainant with instructions not to touch the same
and to hand over the entire amount to the Appellant only on
demand. The personal search of the Complainant and the
accompanying witness was conducted. The accompanying witness
was instructed to overhear the conversation between the
Complainant and the Appellant, to witness the handing over and
acceptance of the bribe money, and to give the pre-arranged signal
to the raiding party.
After completion of the pre-trap preparation, the raiding
party proceeded towards the spot. Subsequently, the Complainant
and the accompanying witness returned and informed the vigilance
officers that the Appellant had asked them to go to village
Haldibahal and had stated that he would receive the money after
completion of demarcation. Accordingly, the raiding party, along
with the Complainant and accompanying witness, proceeded to
village Haldibahal and waited nearby. At about 3.10 p.m., upon
receipt of the pre-arranged signal from the accompanying witness,
the raiding party rushed to the spot and challenged the Appellant
near the football field at Makariaguda, where he was found in the
company of the Complainant, the accompanying witness, and
another person who was later identified as the peon of the R.I.
Office.
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
Upon being challenged, the tainted currency notes
amounting to Rs.250/- were recovered from the Appellant. The
hand-wash of the Appellant was taken in sodium carbonate
solution, which turned pink. The recovered currency notes were
tallied with the numbers noted earlier and were found to be correct.
Necessary seizure lists were prepared in respect of the tainted
money and other incriminating materials, and the detection report
was drawn up, a copy of which was furnished to the Appellant.
During investigation, the relevant case records were
requisitioned from the Tahasildar, Kuchinda. The seized samples
and materials were forwarded to the Regional Forensic Science
Laboratory, Bhubaneswar, for chemical examination. The
encroachment case record was seized from the Tahasil Office,
Kuchinda, vide Exhibit-10. After completion of investigation, a pre-
sanction discussion was held with the sanctioning authority, P.W.5,
Tahin Kanta Pandey, IAS, the then Collector, Sambalpur, who,
upon perusal of the records, accorded sanction for prosecution
under Exhibit-11. Thereafter, the Appellant was arrested and
released on bail, and on completion of investigation, charge-sheet
was submitted.
4. The plea of the defence is one of complete denial and false
implication.
5. In order to bring home the charges, the prosecution
examined five witnesses. P.W.1, Biswanath Besan, is the
Complainant. P.W.2, Gyanaranjan Pradhan, is the official
(magisterial) witness associated with the raiding party. P.W.3, Sarat
Chandra Dash, is a witness to the pre-trap preparation and post-trap
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
detection. P.W.4, Bhawani Shankar Mishra, is the Investigating
Officer. P.W.5, Tahin Kanta Pandey, is the sanctioning authority.
6. The learned Trial Court, upon appreciation of the evidence
of the prosecution witnesses, recorded a finding that the
Complainant, in his cross-examination, admitted recovery of the
tainted money from the shirt pocket of the Appellant. It was further
noticed from the evidence of P.W.3 that the Appellant fumbled
when challenged and, upon being asked, brought out the tainted
currency notes from his shirt pocket. The numbers of the G.C. notes
were compared with the numbers earlier noted by the official
witnesses and were found to tally. The hand-wash of the Appellant,
when taken in sodium carbonate solution, turned pink. Relying
upon the decision in the matter of T. Shankar Prasad v. State of
Andhra Pradesh, reported in 2004 OCR (SC) 599, to the effect
that when tainted money is recovered from the possession of the
accused, a presumption under Section 7 of the Prevention of
Corruption Act arises, the learned trial Court accepted the aforesaid
evidence and came to the conclusion that the Appellant had
demanded and accepted illegal gratification. On such reasoning, the
Appellant was held guilty for the offence punishable under Section
7 of the P.C. Act. However, the learned trial Court found the
Appellant not guilty of the offence punishable under Section
13(1)(d) read with Section 13(2) of the P.C. Act and accordingly
acquitted him of the said charge.
7. Ms. S. Singh, learned counsel appearing for the Appellant,
during the hearing of this Appeal, strenuously argued and drew the
attention of this Court to the evidence of the prosecution witnesses,
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
particularly the Complainant (P.W.1), who, according to learned
counsel, did not support the prosecution case on its substratum. It
was further contended that the most vital witness, who was
allegedly present to overhear the conversation between the
Complainant and the Appellant relating to the demand and
acceptance of bribe, was withheld from examination by the
prosecution. It was submitted that the remaining witnesses, whose
evidence was relied upon by the learned trial Court, are only formal
or official witnesses and their testimony does not establish the
essential ingredients of demand and acceptance of illegal
gratification. Learned counsel further submitted that the learned
trial Court failed to appreciate the evidence in its proper perspective
and erroneously recorded a finding of guilt under Section 7 of the
P.C. Act merely on the basis of recovery of tainted money from the
possession of the Appellant by invoking a presumption, without
there being legally acceptable proof of demand. It was, therefore,
contended that the findings recorded by the learned trial Court are
contrary to the evidence on record as well as settled principles of
law and are liable to be set aside.
8. Mr. Rizvi, learned counsel appearing for the State-
Vigilance, on the other hand, supported the impugned judgment and
canvassed the same to be absolutely in accordance with the
evidence based on facts and law. Arguing in vehemence he
submitted that even in cross-examination, particularly at paragraph
5 of his evidence, the Complainant admitted material facts
supporting the prosecution case. Learned counsel argued that the
Complainant-decoy did not resile from the fact that he had
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
approached the Vigilance authorities complaining about the demand
made by the Appellant. It was further submitted that the
Complainant supported the prosecution case to the extent that he
had made payment of money to the Appellant and that such
payment was not disputed. Learned counsel for the State further
contended that the Complainant's evidence clearly establishes that
he had approached the Appellant for demarcation of land, that the
Appellant demanded a sum of Rs.500/- as illegal gratification, and
that the Complainant, considering the amount to be on the higher
side, requested reduction thereof. He argued that the evidence of
P.Ws.2, 3 and 4 further corroborates the prosecution version
inasmuch as they deposed that pursuant to the complaint lodged by
the Complainant, pre-trap preparation was undertaken in his
presence, during which the Complainant narrated the facts relating
to the demand of illegal gratification by the Appellant and the
proposed payment of the same. According to Mr. Rizvi, the
aforesaid evidence, taken cumulatively, establishes the demand of
illegal gratification by the Appellant, the acceptance thereof, and
the recovery of the tainted money from his possession. It was,
therefore, submitted that the learned trial Court rightly invoked the
statutory presumption and correctly held the Appellant guilty for
the offence punishable under Section 7 of the Prevention of
Corruption Act, and that the impugned judgment warrants no
interference.
9. In order to appreciate the rival submissions advanced on
behalf of the parties and to examine the correctness of the findings
recorded by the learned trial Court, it is necessary to independently
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
scrutinise the evidence led by the prosecution. With that object, the
evidence of the prosecution witnesses is examined hereinbelow,
witness-wise, to ascertain whether the prosecution has been able to
establish the essential ingredients of the offence alleged against the
Appellant, particularly with regard to the demand and acceptance of
illegal gratification.
P.W.1, Biswabhushan Besan, stated that he is the
Complainant in the case. According to him, there was a land dispute
in respect of which police required a demarcation report. He stated
that he approached the Appellant, Sashibhusan Bhoi, who was
working as Amin, for demarcation of the land, and that the
Appellant demanded a sum of Rs.500/- as illegal gratification for
conducting the demarcation. He further stated that he initially paid
Rs.250/- and, as the Appellant insisted on payment of the balance
amount, he approached the Vigilance Office and lodged the written
report. He narrated the pre-trap procedure, including production of
two-hundred-rupee currency notes and one fifty-rupee note,
application of chemical powder, and instructions given to him. He
stated that on the date of occurrence, after demarcation of the land,
he handed over the tainted money to the Appellant near
Makariaguda, which was allegedly witnessed by the accompanying
witness. He further stated that immediately thereafter the Vigilance
officers arrived, challenged the Appellant, recovered the tainted
money from his pocket, conducted hand-wash and pocket-wash
tests which turned pink, and prepared the necessary seizure lists and
detection report. In cross-examination, however, P.W.1 made
several statements suggesting that the money was paid without any
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
demand at the relevant time, that payment was made on the way
after demarcation, and that the Appellant had not demanded money
at the spot, thereby introducing material inconsistencies with his
examination-in-chief.
P.W.2, Gyanaranjan Pradhan, stated that at the relevant time
he was working as Addl. Commercial Tax Officer and was deputed
as an official witness for the vigilance trap. He deposed regarding
the pre-trap formalities, including preparation of sodium carbonate
solution, demonstration of chemical reaction, noting down the
numbers of the currency notes, and preparation of the pre-trap
report. He stated that he accompanied the vigilance team to the
area, remained at a distance, and on receipt of the pre-arranged
signal, rushed to the spot where the Appellant was apprehended. He
stated that the Appellant admitted to having received the bribe
amount, that hand-wash and pocket-wash tests were conducted and
turned pink, and that the tainted money was recovered and tallied
with the noted numbers. In cross-examination, P.W.2 admitted that
he had not personally heard any demand of bribe by the Appellant
and had not seen the exact manner in which the money was passed,
and that whatever he stated regarding demand and acceptance was
based on what was told to him by others.
P.W.3, Sarat Chandra Dash, stated that he was working as
Junior Clerk in the C.T.O. Office and was deputed as an official
witness. He deposed about the preparation stage at the Vigilance
Office, including production of the tainted currency notes by the
Complainant, demonstration of chemical reaction, smearing of
chemical powder on the notes, and instructions given to the
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
Complainant and accompanying witness. He further stated that he
was part of the raiding party and, upon receiving the signal, reached
the spot where the Appellant was challenged. He stated that the
Appellant produced the tainted money, hand-wash and pocket-wash
tests were conducted, and seizure lists were prepared. This witness
was declared hostile to a limited extent, and in his cross-
examination by the prosecution, he admitted that the Appellant had
been challenged for acceptance of bribe and that the chemical tests
yielded positive results. In cross-examination by the defence, he
admitted that he did not hear any demand of bribe and did not
witness the actual passing of money.
P.W.4, Bhawani Shankar Mishra, stated that he was the
Vigilance Inspector and the Investigating Officer in the case. He
deposed in detail regarding registration of the vigilance case, pre-
trap arrangements, demonstration of phenolphthalein test,
instructions to the Complainant and accompanying witness, and
movement of the raiding party. He stated that after receiving the
pre-arranged signal, he challenged the Appellant near the football
field at Makariaguda, whereupon the Appellant admitted to having
received Rs.250/- as bribe. He further stated that the tainted money
was recovered from the Appellant's pocket, the hand-wash and
pocket-wash tests were conducted which turned pink, and the
seizure lists and detection report were prepared. He also deposed
regarding sending the samples for chemical examination, collection
of relevant records, obtaining sanction for prosecution, and
submission of charge-sheet. In cross-examination, he admitted that
no demand was made by the Appellant in the R.I. Office and that
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
the vigilance party did not hear the demand directly, and that the
alleged demand was said to have been made after demarcation.
P.W.5, Tuhin Kanta Pandey, stated that at the relevant time
he was posted as Collector, Sambalpur. He deposed that the
Investigating Officer placed before him the relevant records,
including the vigilance report and connected documents, and after
perusal of the same and upon being satisfied that a prima facie case
existed, he accorded sanction for prosecution of the Appellant,
Sashibhusan Bhoi. He proved the sanction order and his signature
thereon. In cross-examination, he denied the suggestion that
sanction was accorded mechanically or without application of mind.
10. Having heard learned counsel for the respective parties and
upon consideration of the principles enunciated by the Hon'ble
Supreme Court in a catena of decisions, it is no longer res integra
that, in order to establish an offence punishable under Section 7 of
the Prevention of Corruption Act, 1988, proof of demand and
acceptance of illegal gratification is the sine qua non. The said
principle has been authoritatively reiterated by the Constitution
Bench of the Hon'ble Supreme Court in Neeraj Dutta v. State
(Government of NCT of Delhi), reported in (2023) 4 SCC 731,
wherein it has been held as follows:
"68. What emerges from the aforesaid discussion is
summarised as under:
(a) Proof of demand and acceptance of illegal
gratification by a public servant as a fact in issue by
the prosecution is a sine qua non in order to establish
the guilt of the accused public servant under Sections
7 and 13 (1)(d) (i) and(ii) of the Act.
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
(b) In order to bring home the guilt of the accused, the
prosecution has to first prove the demand of illegal
gratification and the subsequent acceptance as a matter
of fact. This fact in issue can be proved either by direct
evidence which can be in the nature of oral evidence
or documentary evidence.
(c) Further, the fact in issue, namely, the proof of
demand and acceptance of illegal gratification can also
be proved by circumstantial evidence in the absence of
direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the
demand and acceptance of illegal gratification by the
public servant, the following aspects have to be borne
in mind:
(i) if there is an offer to pay by the bribe giver without
there being any demand from the public servant and
the latter simply accepts the offer and receives the
illegal gratification, it is a case of acceptance as
per Section 7 of the Act. In such a case, there need not
be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a
demand and the bribe giver accepts the demand and
tenders the demanded gratification which in turn is
received by the public servant, it is a case of
obtainment. In the case of obtainment, the prior
demand for illegal gratification emanates from the
public servant. This is an offence under Section 13
(1)(d)(i) and (ii) of the Act.
(iii) In both cases of (i) and (ii) above, the offer by the
bribe giver and the demand by the public servant
respectively have to be proved by the prosecution as a
fact in issue. In other words, mere acceptance or
receipt of an illegal gratification without anything
more would not make it an offence under Section
7 or Section 13 (1)(d), (i) and (ii) respectively of the
Act.
Therefore, under Section 7 of the Act, in order to bring
home the offence, there must be an offer which
emanates from the bribe giver which is accepted by
the public servant which would make it an offence.
Similarly, a prior demand by the public servant when
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
accepted by the bribe giver and in turn there is a
payment made which is received by the public servant,
would be an offence of obtainment under Section 13
(1)(d) and (i) and (ii) of the Act.
(e) The presumption of fact with regard to the demand
and acceptance or obtainment of an illegal
gratification may be made by a court of law by way of
an inference only when the foundational facts have
been proved by relevant oral and documentary
evidence and not in the absence thereof. On the basis
of the material on record, the Court has the discretion
to raise a presumption of fact while considering
whether the fact of demand has been proved by the
prosecution or not. Of course, a presumption of fact is
subject to rebuttal by the accused and in the absence of
rebuttal presumption stands.
(f) In the event the Complainant turns 'hostile', or has
died or is unavailable to let in his evidence during
trial, demand of illegal gratification can be proved by
letting in the evidence of any other witness who can
again let in evidence, either orally or by documentary
evidence or the prosecution can prove the case by
circumstantial evidence. The trial does not abate nor
does it result in an order of acquittal of the accused
public servant.
(g) In so far as Section 7 of the Act is concerned, on
the proof of the facts in issue, Section 20 mandates the
court to raise a presumption that the illegal
gratification was for the purpose of a motive or reward
as mentioned in the said Section. The said
presumption has to be raised by the court as a legal
presumption or a presumption in law. Of course, the
said presumption is also subject to rebuttal. Section 20
does not apply to Section 13 (1) (d) (i) and (ii) of the
Act.
(h) We clarify that the presumption in law
under Section 20 of the Act is distinct from
presumption of fact referred to above in point (e) as
the former is a mandatory presumption while the latter
is discretionary in nature.
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
11. In the case at hand, it is an admitted position that the
decoy/Complainant did not fully support the prosecution case at the
later stage of his evidence, particularly with regard to the aspect of
demand at the time of the alleged acceptance. However, it is equally
evident from his deposition that, except for resiling from the
specific assertion of demand at the relevant point of time, the
Complainant substantially admitted the prosecution version to the
extent that he had approached the Vigilance authorities and lodged
a complaint alleging demand of illegal gratification by the
Appellant. Thus, while the Complainant did not unequivocally
affirm the demand at the stage of acceptance, he did accept that a
report was made by him before the Vigilance Police alleging such
demand by the Appellant.
12. It is to be noted that the most crucial witness in the entire
prosecution case was the accompanying witness, who was allegedly
present with the Complainant at the time of the alleged demand and
acceptance of illegal gratification and who was expected to
overhear the conversation between the Complainant and the
Appellant and witness the passing of money. For reasons best
known to the prosecution, the said accompanying witness was
withheld from examination. In the absence of such substantive
evidence directly relating to the demand and acceptance of illegal
gratification, the prosecution case rests merely on recovery of the
tainted money from the possession of the Appellant.
13. It is well settled that recovery of tainted money, by itself,
does not prove the offence under Section 7 of the P.C. Act unless it
is established that such recovery was pursuant to a demand made by
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
the public servant and payment made in consequence thereof. In the
present case, the prosecution has failed to adduce reliable evidence
to demonstrate that the amount allegedly paid by the Complainant
and recovered from the Appellant was in response to any demand
made by the Appellant. Consequently, even if the recovery of
money from the possession of the Appellant is accepted, the same
does not, in the absence of proof of demand, lead to the irresistible
conclusion that the amount was accepted as illegal gratification.
14. This unresolved evidentiary gap strikes at the very root of
the prosecution case and renders the statutory presumption under
Section 20 of the P.C. Act inapplicable, as the foundational facts
necessary to invoke such presumption have not been established.
The evidence of P.Ws.2, 3 and 4, though consistent and coherent
with regard to the procedural aspects of the trap, including the pre-
trap preparation, recovery, and preparation of the detection report,
remains essentially formal in nature. Such evidence, however,
cannot substitute proof of demand and acceptance of illegal
gratification.
15. In the absence of substantive evidence, or even cogent
circumstantial evidence, establishing that the Appellant had
demanded illegal gratification and that the tainted money recovered
from his possession was accepted pursuant to such demand, the
guilt of the Appellant cannot be said to have been proved beyond
reasonable doubt.
16. As discussed hereinabove, the evidence of the Complainant
is conspicuously silent with regard to payment of illegal
gratification pursuant to any demand made by the Appellant.
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
Further, in the absence of any evidence from the accompanying
witness, who alone could have deposed about having overheard the
conversation relating to demand and witnessed the payment, the
prosecution has failed to establish that the Appellant accepted the
alleged bribe amount in consequence of any demand made by him.
In such circumstances, the prosecution cannot be said to have
proved its case beyond reasonable doubt.
17. This Court is, therefore, of the considered view that the
learned trial Court failed to appreciate the evidence brought on
record in its proper perspective and in consonance with settled
principles of law. Accordingly, the impugned judgment and order
dated 04.03.2005 passed by the learned Special Judge (Vigilance)
in T.R. Case No.47 of 1995 are hereby set aside. The Appellant
stands acquitted of the charge under Section 7 of the Prevention of
Corruption Act, 1988.
18. In view of the acquittal of the Appellant, the bail bonds
furnished by him pursuant to the interim orders passed in the
present appeal stand discharged.
(Chittaranjan Dash)
Judge
Sipra
Reason: Authentication CRLA No.129 of 2005
Location: High Court of Orissa, Cuttack
Date: 22-Dec-2025 10:39:29
