Orissa High Court
State Of Orissa vs Subash Chandra Subudhi .... Opposite ... on 30 May, 2025
IN THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No.47 of 2009
Arising out of the judgment dated 02.12.2008 passed by the learned
Special Judge (Vigilance), Berhampur at Ganjam in G.R. Case No. 59
of 2003 (V) - T.R. No. 40 of 2004.
State of Orissa .... Petitioner
-versus-
Subash Chandra Subudhi .... Opposite Party
Advocates appeared in this case through Hybrid Mode :
For Petitioner : Mr. Sangram Das,
Standing Counsel (Vig.)
For Opposite Party : Mr. Aswini Kumar Das,
Advocate on behalf of
Mr. Anupam Das, Advocate
CORAM:
HON'BLE MISS JUSTICE SAVITRI RATHO
..................................................................................
Date of Judgment: 30.05.2025
...................................................................................
Savitri Ratho, J. This Criminal Leave Petition has been filed under
Section 378 (1) and (3) of Cr.P.C. praying for grant of leave to file an
appeal against the judgment dated 02.12.2008 passed by the learned
Special Judge (Vigilance), Berhampur, Ganjam in G.R. Case No.59 of
2003 (V) - T.R. No. 40 of 2004 acquitting the opposite party from the
offence under Section 3/13 (1) (d) read with Section 13 (2) of the
Prevention of Corruption Act.
PROSECUTION CASE
2. The prosecution case in brief is that the complainant
(decoy) was working as Voluntary Education Teacher of
Mardarajapur E.G.S. (Education guaranteed Scheme) Primary School
under Khallikote Block. For development of the school, the meeting
of Village Education Committee was held at the Primary School on
27.11.2003 and in the said meeting, it was decided to open a joint
Savings Account in the names of Lokanath Das, President of Village
Education Committee, Mardarajapur and decoy at Kanheipur branch
of Rusikullya Gramya Bank. As per the prevalent practice, the S.I. of
Schools of Khallikote Block has to attest the signatures of the
President and decoy and to recommend to the Bank for opening a
joint Savings Bank Account. On 02.12.2003 the decoy met the
opposite party, who was working as S.I. of Schools, Khallikote and
requested him for recommending their case, but the opposite party
demanded a bribe of Rs.2,000/- for the purpose. On 14.12.2003, the
decoy again met the opposite party at Khallikote and expressed his
inability to pay such a huge amount, but the opposite party told him
to meet him on 16.12.2003 with first instalment of Rs.500/- for
attesting their signatures and recommending to the Bank for opening
of the pass book. Exasperated, the decoy lodged a written report
before the Superintendent of Police (Vigilance), Berhampur. On
receipt of F.I.R., S.P. (Vigilance), Berhampur directed Inspector-
R.N. Pradhan to lay the trap and instructed Inspector-B.K. Jena to
investigate the case. The trap laying I.O. made all arrangements for
pre-trap demonstration on 16.12.2003 at 8.00 A.M. in the Vigilance
Officer, Berhampur. Services of official witnesses of other
departments were requisitioned, who were also present during
demonstration. The complainant, disclosed about his grievance and
demand of bribe by the opposite party and produced Rs.500/- in
shape of ten numbers of fifty rupee G.C. notes. During
demonstration, the official witnesses noted down the numbers of the
G.C. notes and the tainted G.C. notes treated with phenolphthalein
powder were handed over to decoy. At 9.30 A.M. on completion of
preparation of preparatory report, signatures of the witnesses were
obtained and at 9.45 A.M. the trap party proceeded towards
Khallikote in the office jeep. At 11.15 A.M. the trap party reached
near Block Office, Khallikote. The decoy and the accompanying
witness-Jaya Narayan Nanda, Jr. Engineer of the Office of Executive
Engineer, Quality Control Division, Berhampur, proceeded ahead by
walk, while other vigilance staff followed the decoy maintaining a
reasonable distance, D.S.P. (Vig.)-T. Chandra Bhusan and official
witness-Mrutyunjay Das were sitting in the jeep parked at a distance
of 300 metres from the Block Office. At 11.40 A.M., the Inspector
got signal and rushed to the spot and while was proceeding found the
opposite party going away from the spot as a pillion rider on a motor
cycle. When the Trap Laying I.O. arrived near the decoy, who was
standing on the Block colony on a through-fare, he got information
from him that he has already handed over the G.C. notes to the
opposite party and he has gone to the Treasury Office. The I.O.
calling D.S.P. and other witnesses travelled in the jeep up to Sub-
Treasury, Khallikote where it was ascertained that the opposite party
had also left the place to Nodal U.P. School, Kairasi, where training
programme for teachers was going on. So the trap party proceeded to
Kairasi U.P. School and found that the opposite party had not arrived
by then. At about 12.50 P.M. opposite party arrived before the School
gate and the motor cycle leaving him went away. The decoy followed
the opposite party from the gate and they travelled 10 metres from the
main entrance and before reaching the school, the opposite party
signed the resolution book and also signed the resolution while
standing. At this juncture, the I.O. arrived there, disclosed his identity
and also the identity of other witnesses present there to the opposite
party and challenged the opposite party to have accepted the bribe, to
which the opposite party denied. Then the opposite party was taken
to the chamber of the Headmaster of Nodal School. Inside the office
room, solution of sodium carbonate was prepared in two glass bottles
and hand wash of opposite party was taken, but there was no colour
change. Then opposite party produced the tainted G.C. notes from his
pant pocket and it was found to be Rs.500/-. The official witnesses
verified the numbers of the G.C. notes with the numbers noted in the
preparation report and it tallied. Then pant pocket wash of the
opposite party was taken and there was change of colour to pink.
Sample was collected and preserved. The tainted G.C. notes wrapped
in a piece of paper and cotton swab of that paper covering was taken
and dipped into another solution of sodium carbonate and there was
change of colour and sample of the same was preserved. The I.O.
seized the tainted G.C. notes so also resolution copy and resolution
register and prepared seizure lists, followed by preparation of a
detection report. On 20.12.2003, Inspector-B.K. Jena took charge of
investigation and examined the trap laying I.O. and other witnesses
obtained chemical examination report from R.F.S.L., Berhampur and
also obtained sanction order from D.I. of Schools and submitted
charge sheet, which occasioned the trial.
DEFENCE PLEA
3. The defence plea was one of denial and false implication.
Then specific plea is that the counter signature of the accused-
opposite party (S.I. of Schools) was not required to open the account
and hence the occasion to demand bribe did not arise.
WITNESSES
4. In support of its case, the prosecution has examined 8
witnesses whereas defence has adduced three witnesses.
PROSECUTION WITNESSES
P.W. 1-Santosh Kumar Pradhan is the decoy, who speaks
about demand and acceptance of bribe by the School Sub-Inspector
(opposite party).
P.W.2-Mrutyunjaya Das is the Official witness, who had
accompanied the trap party and has stated how the opposite party was
trapped.
P.W.3-Nilambar Mishra is a witness, who was previously
working as S.I. of Schools has stated that how the Education
Volunteers, were being appointed basing on the recommendation of
the Village Education Committee. He has deposed that the Centre
was providing funds in the above scheme, which was being deposited
in the joint account of the President and Education Volunteers and
approval of B.D.O. or S.I. of School was not necessary for opening
the joint account.
P.W.4-Jaya Narayan Nanda is an accompanying witness.
He had been instructed to accompany the informant to over hear the
conversation between the opposite party and informant and to give
signal after payment, but he did not hear the conversation even
though the informant and the opposite party walked together on the
road inside Block colony by walk and according to P.W.4 he was
following them keeping a little distance. He has stated that after the
informant gave signal to him, he passed the same to other members of
the trap party. He has stated that after he gave the signal but before
the vigilance staff came to that place, the opposite party suddenly left
that place sitting on a motor cycle of a third person. He has stated that
as Koirasi School after the opposite party was challenged by the
Vigilance Inspector, he gave recovery of the tainted G.C. notes from
his pant pocket.
P.W.5-Prasanta Kumar Sahu is the D.I. of Schools, who
has passed the sanction order to prosecute the opposite party.
P.W.6-Udayanath Behera is the vigilance constable, who
had shown demonstration during pre-trap arrangement.
P.W.7-Rabindra Nath Pradhan is the Trap Laying I.O.
P.W.8-Bijaya Kumar Jena is the subsequent I.O., who
has submitted charge sheet in this case.
DEFENCE WITNESS
The defence has examined three witnesses. D.W.2-
Sashadhar Behera, an officer of Rushikulya Gramya Bank, Kanheipur
Branch, who was officiating as Branch Manager as D.W.2. D.W.2
has categorically stated that the Bank has opened accounts of other
E.G.S. Schools on the application of Headmaster and President and
there was no necessity of counter signature of any S.I. of Schools.
TRIAL COURT JUDGMENT
5. The learned trial court arrived at the following findings
while acquitting the accused:-
i) In a case of this nature, prosecution is to prove the demand and
acceptance of bribe.
ii) The evidence of the decoy requires corroboration as his status is
equivalent to an accomplice.
iii) Decoy has stated that for recommendation for opening of a
passbook in Rushikulya Gramya Bank, the accused had demanded
bribe.
iv) Examination of the Branch Manager of The Rushikulya Gramya
Bank would have proved that they had insisted for counter signature
of the S.I.
v) Defence has examined D.W.2, officer of Rushikulya Gramya
Bank who has stated that bank has opened accounts of other EGS
Schools without counter signature of any S.I. of Schools.
vi) Genesis of demand of bribe seems improbable.
vii) Examination of the President of the Village Education Committee
would have brought the real picture to light.
viii) Conduct of decoy does not inspire confidence.
ix) evidence of decoy is prevaricating and it is unsafe to lay credence
to his veracity.
x) Non catching of the accused soon after passing of the alleged
tainted money makes the whole affair fishy.
xi) The evidence of P.W.1, P.W.2 and P.W. 4 does not corroborate
each other.
xii) The evidence regrading accused going to the treasury and Koirasi
School and conduct of the witnesses is improbable.
xiii) As per seizure list, accused produced ten numbers of fifty rupees
G.C. notes from left side pocket kept in folded written paper. So there
was no change in colour of his hand wash but strangely pocket wash
showed positive result.
xiv) Section 20 of the PC Act provides for presumption. But to draw
such presumption evidence of the prosecution should be
unimpeachable.
xv)Prosecution has introduced story of wrapping of notes in a piece
of paper, but P.W 1 does not say so.
xvi) P.W. 1 and P.W.2 differ in their evidence as to from which
pocket of the accused the money was recovered
xvii) The theory of insertion of the tainted G.C. notes in the pocket of
the accused without his knowledge, cannot be discarded.
xviii) Background created for demand of bribe seems far too remote
and unrealistic and far from truth.
SUBMISSIONS
6. I have heard Mr. Sangram Das, learned Standing Counsel
(Vigilance) and Mr. Aswini Kumar Das, learned counsel appearing
on behalf of the opposite party.
7. Mr. Sangram Das, learned Standing Counsel (Vigilance)
has submitted that in view of the evidence of the decoy P.W.1 and as
there was colour change of the pant wash of the opposite party from
where the tainted notes were recovered, learned trial Court could not
have acquitted the opposite party. The learned counsel has relied on
the decision of the Hon'ble Apex Court in the case of Dhaneshwar
Narain Saxena vs The Delhi Administration reported in AIR 1962
SC 195 in support of his submission.
8. Mr. Aswini Kumar Das, learned counsel appearing on
behalf of the opposite party submits that the foundation of the
prosecution case is that the opposite party demanded bribe to counter
signature for the opposite party of the joint bank account, but in view
of the evidence of P.W.3 that his approval was not required, the
foundation of the prosecution case is destroyed. He has further
submitted that prosecution has not been able to prove either the
demand or the acceptance as P.W.4 could not see/hear the demand
and acceptance. Hand wash of the opposite party did not change
colour when tested. So the learned trial Court has rightly granted the
benefit of doubt to the opposite party. He further submitted that the
view of the learned trial Court is neither perverse nor based on
inadmissible evidence and was a possible view. He submitted that the
Court should not grant leave when there is no perversity or illegality
in the impugned judgment of acquittal. He has placed reliance on the
decisions in the case of (i) N. Vijayakumar vrs. State of Tamil Nadu
reported in (2021) 3 SCC 687 and the case of (ii) State of Odisha
(Vigilance) vrs. Nalinikanta Behera and others (CRLLP No. 156 of
2017 decided on 26.11.2021).
JUDICIAL PRONOUNCEMENT
9. The Privy Council in the case of Sheo Swarup v. King
Emperor AIR 1934 PC 227, has held as follows :
"... the High Court should and will always give
proper weight and consideration to such matters as (1)
the views of the trial Judge as to the credibility of the
witnesses; (2) the presumption of innocence in favour of
the accused, a presumption certainly not weakened by
the fact that he has been acquitted at his trial; (3) the
right of the accused to the benefit of any doubt; and (4)
the slowness of an appellate court in disturbing a finding
of fact arrived at by a Judge who had the advantage of
seeing the witnesses."
In Chandrappa v. State of Karnataka (2007) 4 SCC
415, the Supreme Court has reiterated the legal position as under:
"(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 43 of
53 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."
In the case of N. Vijayakumar (supra), the Hon'ble Apex
Court held as follows:
"26. It is equally well settled that mere recovery by
itself cannot prove the charge of the prosecution against
the accused. Reference can be made to the judgments of
this Court in the case of C.M. Girish Babu v. CBI,
Cochin, High Court of Kerala (2009) 3 SCC 779 and in
the case of B. Jayaraj v. State of Andhra
Pradesh (2014) 13 SCC 55. In the aforesaid judgments
of this Court while considering the case under Sections
7, 13(1)(d)(i) and (ii) of the Prevention of Corruption
Act, 1988 it is reiterated that to prove the charge, it has
to be proved beyond reasonable doubt that accused
voluntarily accepted money knowing it to be bribe.
Absence of proof of demand for illegal gratification and
mere possession or recovery of currency notes is not
sufficient to constitute such offence. In the said
judgments it is also held that even the presumption
under Section 20 of the Act can be drawn only after
demand for and acceptance of illegal gratification is
proved. It is also fairly well settled that initial
presumption of innocence in the criminal jurisprudence
gets doubled by acquittal recorded by the trial court.
27. The relevant paragraphs 7, 8 and 9 of the
judgment in the case of B. Jayaraj (supra) read as
under:
"7. Insofar as the offence under Section 7 is concerned,
it is a settled position in law that demand of illegal
gratification is sine qua non to constitute the said offence
and mere recovery of currency notes cannot constitute
the offence under Section 7 unless it is proved beyond all
reasonable doubt that the accused voluntarily accepted
the money knowing it to be a bribe. The above position
has been succinctly laid down in several judgments of
this Court. By way of illustration reference may be made
to the decision in C.M. Sharma v. State of A.P. [(2010)
15 SCC 1 : (2013) 2 SCC (Cri) 89] and C.M. Girish
Babu v. CBI."
8. In the present case, the complainant did not
support the prosecution case insofar as demand by the
accused is concerned. The prosecution has not examined
any other witness, present at the time when the money
was allegedly handed over to the accused by the
complainant, to prove that the same was pursuant to any
demand made by the accused. When the complainant
himself had disowned what he had stated in the initial
complaint (Ext. P11) before LW 9, and there is no other
evidence to prove that the accused had made any
demand, the evidence of PW 1 and the contents of Ext. P-
11 cannot be relied upon to come to the conclusion that
the above material furnishes proof of the demand
allegedly made by the accused. We are, therefore,
inclined to hold that the learned trial court as well as the
High Court was not correct in holding the demand
alleged to be made by the accused as proved. The only
other material available is the recovery of the tainted
currency notes from the possession of the accused. In
fact such possession is admitted by the accused himself.
Mere possession and recovery of the currency notes from
the accused without proof of demand will not bring home
the offence under Section 7. The above also will be
conclusive insofar as the offence under Sections
13(1)(d)(i) and (ii) is concerned as in the absence of any
proof of demand for illegal gratification, the use of
corrupt or illegal means or abuse of position as a public
servant to obtain any valuable thing or pecuniary
advantage cannot be held to be established.
9. Insofar as the presumption permissible to be
drawn under Section 20 of the Act is concerned, such
presumption can only be in respect of the offence
under Section 7 and not the offences under Sections
13(1)(d)(i) and (ii) of the Act. In any event, it is only on
proof of acceptance of illegal gratification that
presumption can be drawn under Section 20 of the Act
that such gratification was received for doing or
forbearing to do any official act. Proof of acceptance of
illegal gratification can follow only if there is proof of
demand. As the same is lacking in the present case the
primary facts on the basis of which the legal presumption
under Section 20 can be drawn are wholly absent."
The abovesaid view taken by this Court, fully supports
the case of the appellant. In view of the contradictions
noticed by us above in the depositions of key witnesses
examined on behalf of the prosecution, we are of the view
that the demand for and acceptance of bribe amount and
cell phone by the appellant, is not proved beyond
reasonable doubt. Having regard to such evidence on
record the acquittal recorded by the trial court is a
"possible view" as such the judgment of the High Court
is fit to be set aside. Before recording conviction under
the provisions of Prevention of Corruption Act, courts
have to take utmost care in scanning the evidence. Once
conviction is recorded under provisions of Prevention of
Corruption Act, it casts a social stigma on the person in
the society apart from serious consequences on the
service rendered. At the same time it is also to be noted
that whether the view taken by the trial court is a
possible view or not, there cannot be any definite
proposition and each case has to be judged on its own
merits, having regard to evidence on record."
10. In the case of Dhaneshwar (supra), the Supreme Court
has held as under :-
"....The ingredients of the particular offence in clause
(d) of section 5(1) of the Act are; (1) that he should be a
public servant; (2) that he should use some corrupt or
illegal means or otherwise abuse his position as a public
servant; (3) that he should have thereby obtained a
valuable thing or pecuniary advantage; and (4) for
himself or for any other person. In order to bring the
charge home to an accused person under clause (d)
aforesaid of the section, it not necessary that the public
servant in question, while misconducting himself should
have done so in the discharge of his duty. It would be
anomalous to say that a public servant has misconducted
himself in the discharge of his duty. "Duty" and
"misconduct" go ill together. If a person has
misconducted himself as a public servant it would not
ordinarily be in the discharge of his duty, but the reverse
of it. That ''misconduct'', which has been made criminal
by section 5 of the Act, does not contain the element of
discharge of his duty, by public servant, is also made
clear by reference to the provisions of clause (c) of
section 5(1). It is well settled that if a public servant
dishonestly or fraudulently misappropriates property
entrusted to him, he cannot be said to have been doing so
in the discharge of his official duty (vide the case of Hori
Ram Singh v. The Crown [1939] F.C.R. 159. An
application for special leave to appeal from that decision
was refused by the Privy Council in Hori Ram Singh v.
The King-Emperor [1940] F.C.R. 15. This Court
therefore, misread the section when it observed that the
offence consists in criminal misconduct in the discharge
of official duty. The error lies in importing the
description of the offence into the definition portion of it.
It is not necessary to constitute the offence under clause
(d) of the section that the public servant must do
something in connection with his own duty and thereby
obtain any valuable thing or pecuniary advantage. It is
equally wrong to say that if a public servant were to take
money from a third person, by corrupt or illegal means
or otherwise abusing his official position, in order to
corrupt some other public servant, without there being
any question of his misconducting himself in the
discharge of his own duty, he has not committed an
offence u/s 5(1) (d). It is also erroneous to hold that the
essence of an offence u/s 5(2), read with section 5(1) (d),
is that the public servant should do something in the
discharge of his own duty and thereby obtain a valuable
thing or pecuniary advantage."
In the case of Nalinikanta (supra), the Court has held
that the order of acquittal should not be interfered with if there is no
illegality or perversity in the order.
DISCUSSION AND CONCLUSION
11. I have carefully gone through the judgment of the learned
trial court and considering the submissions of the learned counsel.
12. I find that the hand wash of the opposite party did not turn
pink for which the prosecution came up with the explanation that the
notes were wrapped in a paper and kept in his pocket. But his pant
wash turned pink. This should not have happened if it was kept
wrapped in a paper.
13. The accused's pant wash turning pink does not conclusively
prove the fact that the accused had accepted the bribe and placed it in
his pant. So plea of the accused that it was kept in his pocket with his
knowledge is not improbable.
14. There is discrepancy in the evidence of witnesses as to which
pant pocket the notes were brought out from (left or right). This
adversely affects the prosecution case.
15. P.W.4 the accompanying witness has not heard what was
spoken by P.W.1 and the opposite party and he gave signal after
receiving signal from P.W.1. As per his evidence there is a gap
between the signal and recovery of the tended notes.
16. P.W.3 has stated that approval of the BDO or S.I. was not
necessary for operative of bank account. This becomes important as
the defence case is that since counter signature of the S.I. was not
necessary, there was no occasion to demand bribe.
17. The evidence of the witnesses after alleged acceptance of the
bribe is discrepant and do not tally.
18. The conduct of the accused as well as the witnesses after
alleged acceptance of the bribe is strange and unnatural and difficult
to accept.
19. The view of the learned trial Court is a possible view. The
judgment of the learned trial Court cannot be considered to be
erroneous or perverse.
20. Almost sixteen years have elapsed since the opposite
party was acquitted.
21. In view of the above discussion, I do not consider it to be
a fit case to grant leave to the petitioner file appeal challenging the
judgment of acquittal and
22. The CRLLP is dismissed.
......................
(Savitri Ratho)
Judge
Orissa High Court, Cuttack
Dated 30th May, 2025/Puspa
Signed by: PUSPANJALI MOHAPATRA
Designation: Personal Assistant
Reason: Authentication
Location: Orissa High Court
Date: 05-Jun-2025 21:24:56
