Orissa High Court
Sitakanta Dash vs State Of Orissa (G.A. Department) on 30 May, 2025
THE HIGH COURT OF ORISSA AT CUTTACK
CRLA No.78 of 2017
(In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure,
1973 and under Section 27 of the Prevention of Corruption Act, 1988)
Sitakanta Dash ....... Appellant
-Versus-
State of Orissa (G.A. Department) ....... Respondent
For the Appellant : Mr. S. Panda, Advocate,
With Mr. Abhas Mohanty, Advocate
For the Respondent : Mr. Niranjan Moharana,
Additional Standing Counsel, (Vigilance)
CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA
Date of Hearing: 29.11.2024 & 03.03.2025 :: Date of Judgment:30.05.2025
S.S. Mishra, J. The present appeal has been filed under Section
374(2) of the Code of Criminal Procedure,1973 and under Section 27 of
the Prevention of Corruption Act,1988, challenging the Judgement dated
24.01.2017, passed by the learned Special Judge (Vigilance), Cuttack, in
T.R. Case No.32 of 2009 corresponding to Cuttack Vigilance P.S. Case
No.43 of 2005, whereby the appeal is filed assailing the conviction of the
appellant U/s 13(2) r/w Section 13(1)(d) of the Prevention of Corruption
Act, sentencing him to undergo R.I. for two years and to pay fine of
Rs.2000/-, in default to undergo R.I. for two months. Further the
appellant has also been convicted under Section 7 of the Prevention of
Corruption Act, sentencing him to undergo R.I. for one year and to pay
fine of Rs.1000/-, in default to undergo R.I. for two months.
2. The facts of the prosecution case bereft of any unnecessary details
are as follows: -
I. The present case originates from a complaint filed by P.W.1
(complainant) Santosh Kumar Sahoo, who along with his father was
accused in certain criminal cases relating to alleged misappropriation
of compensation funds allotted to villagers during the land acquisition
process. These cases were under investigation at the NTPC Town
Police Station, where the convict-appellant, Sitakanta Dash, was
serving as the Officer-in-Charge (OIC).
II. In the course of investigation, P.W.1 (complainant) and his
father were summoned to the police station, and on 12.09.2005 when
both visited the police station, his father was arrested and remanded
into custody. Following this, when P.W.1 (complainant) met the
appellant, the latter allegedly demanded a bribe of Rs.70,000/- which
was later reduced to Rs.35,000/- for settling the case. However, since
P.W.1 (complainant) absconded, his uncle (P.W.2) met the OIC-
appellant, who then conveyed to the complainant that the bribe
demand now stood at Rs.30,000/- for ensuring that his name is
dropped from the charge-sheet. Out of this, a sum of Rs.25,000/- was
allegedly paid through a Constable, who was later made a co-accused
but eventually acquitted. P.W.1 (complainant) claimed that this
payment was made out of fear of arrest and termination from his job at
NTPC.
III. When the OIC allegedly made a further demand of
Rs.5,000/-, P.W.1 (complainant), being aggrieved, submitted a written
report on 22.11.2005 to the Superintendent of Police, Vigilance,
Cuttack Division, which was registered as Cuttack Vigilance P.S. Case
No.43 of 2005 under Section 7 of the Prevention of Corruption Act,
1988. Based on this, a trap was organized by the Vigilance
Department on 23.11.2005, involving P.W.1 (complainant) as the
decoy, and other officers including P.W.4, P.W.5, P.W.6, and P.W.8.
IV. During the trap preparation, P.W.1 (complainant) reiterated
the bribe demands before the officers and handed over Rs.5,000/- in
government currency notes, which were treated with phenolphthalein
powder. These notes were then wrapped and handed back to P.W.1
(complainant) with instructions to hand them over to the accused upon
demand. The trap party followed P.W.1 (complainant) where the
complainant met the OIC and handed over the tainted notes, which the
OIC placed inside the drawer of his office table after verifying the
amount. Following this, the predetermined signal was given, and the
vigilance officials entered the police station. The accused attempted to
flee but was apprehended and admitted to having received the bribe.
V. However, it is important to mention that there are divergent
accounts of the trap incident as deposed by different prosecution
witnesses during the trial before the learned Special Judge (Vigilance),
Cuttack. The delinquent officer, in his defence, deposed that he was
not present inside the police station when P.W.1 (complainant)
allegedly entered to hand over the bribe (tainted currency notes), as he
had gone outside to attend the call of nature. According to his version,
the money was allegedly placed by the complainant in the drawer of
his office table in his absence, and upon his return, P.W.1
(complainant) shook his hand, following which the vigilance officials
entered and apprehended him. Interestingly, this version of the
incident finds corroboration in the deposition of P.W.1 (complainant),
who also stated during his cross-examination that the tainted
currencies were placed in the drawer before the officer returned to the
room. This introduces a different dimension to the core allegation and
has a bearing on the assessment of conscious acceptance of the bribing
the appellant.
VI. In addition to this, P.W.6 who was a hearsay witness,
narrated a version which contradicted both the above set of facts.
P.W.6 was part of the trap party and acted as a shadow witness.
Although he was assigned to overhear the conversation and witness
the transaction, P.W.6's deposition turned out to be largely hearsay in
nature and introduced inconsistencies. His statement did not align with
either the version of the OIC-appellant, who claimed that he was
outside when the money was placed in the drawer, or that of P.W.1
(complainant), who admitted to have placed the money in the drawer
in the officer's absence. These contradictions among key witnesses
created ambiguities regarding the precise sequence of events during
the trap and added complexity to the prosecution's narrative about the
alleged act of bribe-taking.
VII. Following the previous incident, the hand wash of the
accused tested positive to the phenolphthalein, turning the sodium
carbonate solution pink. The tainted currency notes were recovered
from the drawer and matched with the previously noted serial
numbers. Additional items such as some cash and gold were also
recovered from the OIC's (appellant's) office. All relevant articles and
documents were seized, and a detection report (Ext.3) was prepared.
VIII. The investigation was taken over by P.W.8, who forwarded
the tainted articles for chemical examination, recorded statements of
the witnesses under Section 164 Cr.P.C., obtained the sanction order
for prosecution. Upon completion of the investigation, a charge-sheet
was submitted on 16.11.2006 against the appellant under Sections
13(2) read with 13(1)(d) and Section 7 of the Prevention of Corruption
Act, 1988, and against the co-accused constable under Section 12 of
the P.C. Act for abetment.
IX. During the trial, the learned trial Court framed charges
accordingly. The appellant was convicted for the offences charged
under the Prevention of Corruption Act, while the co-accused
constable Girish Chandra Swain was acquitted. It is important to note
that several crucial prosecution witnesses, including P.W.1
(complainant) himself, turned hostile during the trial proceedings and
gave narratives which were way different from their initial statements.
3. Heard Mr. S. Panda, learned counsel for the appellant and Mr.
Niranjan Moharana, learned Additional Standing Counsel for Vigilance
for the respondents.
4. Mr. Panda, learned counsel for the appellant submitted that the
prosecution case is riddled with inconsistencies and contradictions,
which materially affect its credibility. It is submitted that the primary
evidence relied upon by the prosecution have materially contradicted the
prosecution case, as evident from their depositions.
Additionally he has submitted that there are also inconsistencies in
the F.I.R. given by the complainant to the effect that the complainant
was in a haste to make the appellant suffer so he seemingly mentioned
the amount to be Rs.500/- instead for Rs.5000/- (it is actually evident
that the FIR is tampered with a 0 being added later with some different
ink) and that the FIR doesn't mention at what place the accused asked
him to meet to give the money.
5. It is further submitted by Mr. Panda, learned counsel that the trap
report (Ext.10) and seizure list (Ext.9) are not corroborated by the
statements of either the complainant or the shadow witness. Therefore,
the basic ingredients of demand and acceptance, as required to bring
home the charge under Section 7 and Section 13(1)(d) read with Section
13(2) of the Prevention of Corruption Act, 1988, are not proved beyond
reasonable doubt. Reliance is placed upon the decisions in B. Jayaraj v.
State of Andhra Pradesh1, wherein the Hon'ble Supreme Court held that
mere recovery of tainted money is not sufficient to convict the accused
in the absence of proof of demand. The Hon'ble Court observed:
"......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."
6. The learned Counsel for the appellant further submitted that in P.
Satyanarayana Murthy v. District Inspector of Police2, as well as in
Sujit Biswas v. State of Assam3, the Hon'ble Supreme Court has
categorically held that suspicion, however grave it may be, cannot take
the place of legal proof. The prosecution cannot afford to rest its case in
the realm of "may be true"; rather, it must elevate its case to the domain
of "must be true" so as to eliminate the possibility of conjecture or
(2014) 13 SCC 55
(2015) 10 SCC 152
(2013) 12 SCC 406
surmise. It was emphasized that courts must be vigilant to avoid any
miscarriage of justice, and where two views are reasonably possible on
the basis of the evidence on record, the benefit of doubt must necessarily
go to the accused. Thus, in the present case, where the evidence fails to
conclusively establish the demand and acceptance of illegal gratification,
and two plausible interpretations arise from the facts and circumstances,
the appellant is entitled to the benefit of doubt.
7. Further on the aspect of demand, the learned Counsel for the
appellant submitted that there is no substantive evidence on record to
prove the alleged demand of illegal gratification by the appellant.
Although the First Information Report contains a reference to such
demand, it is trite law that the FIR does not constitute substantive
evidence. Reliance was placed on the decision in Madhusudan Singh v.
State of Bihar4, wherein the Hon'ble Supreme Court held that while the
FIR may be used for the purposes of corroboration or contradiction, it
cannot by itself form the basis of conviction. Similarly, in Utpal Das v.
AIR 1995 SC 1437
State of West Bengal5, it was held that the previous statement in the FIR
cannot be used against the maker unless the relevant portions are
specifically put to him during trial.
The learned counsel further submitted that the demand for illegal
gratification is a sine qua non for establishing offences under Sections 7
and 13(1)(d) read with Section 13(2) of the Prevention of Corruption
Act. In support of this proposition, reliance was placed on Krishan
Chander v. State of Delhi6.
8. On the aspect of recovery of bribe money, the learned Counsel for
the appellant submitted that in the Examination-in-Chief, PW-1 stated
that on the date of the alleged trap, he and PW-6 had entered NTPC PS,
where PW-6 waited in the verandah while PW-1 proceeded alone into
the room of the accused-appellant (OIC). Upon finding the room vacant
and the accused absent, PW-1 placed the cash of Rs. 5,000/- inside the
(2010) 46 OCR 600
(2016) 3 SCC 108
table drawer of the accused. This crucial fact demonstrates that there was
no voluntary acceptance of any bribe amount by the accused.
It was further submitted that, as held by the Hon'ble Supreme
Court in C.P. Rao v. State of Kerala7, mere recovery of the amount
alleged to have been paid by way of illegal gratification would not by
itself prove the charge against the accused. In the absence of evidence to
prove the payment or voluntary acceptance of the bribe by the accused
with knowledge of its illicit nature, no conviction can be sustained.
Similarly, in Suraj Mal v. State (Delhi Administration)8, the
Hon'ble Supreme Court observed that mere recovery of money, devoid
of the surrounding circumstances under which it was paid, cannot be
deemed sufficient, particularly when the substantive evidence is
unreliable to establish either the payment or voluntary acceptance of the
bribe.
(2011) 6 SCC 450
1979 CriLJ 1087
9. With regard to the presumption under Section 20 of the Prevention
of Corruption Act, the learned Counsel for the appellant submitted that,
as held in B. Jayaraj v. State of Andhra Pradesh9, such presumption is
permissible only for offences under Section 7 and not under Section
13(1)(d)(i)(ii) of the P.C. Act. Furthermore, even for Section 7, the
presumption can arise only upon proof of acceptance of illegal
gratification. And, since acceptance presupposes demand, which is
wholly lacking in the present case, the essential foundational facts for
drawing the presumption under Section 20 are altogether absent.
10. Mr. Panda, learned counsel for the appellant further submitted that
in the present case, the entire trap proceeding is rendered doubtful
because of the absence of trustworthy evidence establishing demand or
acceptance. When the two most important witnesses the complainant and
the shadow witness do not support the prosecution, and instead
contradict the trap and the recovery, it vitiates the entire case.
(2014) 13 SCC 55
11. Mr. Panda, learned Counsel also contended that the prosecution
has failed to prove the essential requirement of valid sanction for
prosecution under Section 19 of the Prevention of Corruption Act. It is
submitted that P.W.8 deposed that the Superintendent of Police (SP) had
prepared the sample sanction order. On the SP's report, the sanctioning
authority merely signed the typed form already prepared by the SP. It is
argued, that the prosecution deliberately withheld the sanctioning
authority from being examined in Court. The learned Counsel submits
that the sanction was not obtained from the competent authority, who
had appointed the accused, as required under Section 19(3) of the
Prevention of Corruption Act, and on that ground alone, the entire
proceeding is vitiated and the case is liable to be quashed. Thus, the
sanction is vitiated for non-application of mind. Reliance is placed upon
Mohd. Iqbal Ahmed v. State of Andhra Pradesh10, wherein it was held
that:
".........It is incumbent on the prosecution to prove that a
valid sanction has been granted by the Sanctioning
(1979) 4 SCC 172
Authority after it was satisfied that a case for sanction has
been made out constituting the offence. This should be done
in two ways; either (1) by producing the original sanction
which itself contains the facts constituting the offence and
the grounds of satisfaction and (2) by adducing evidence
aliunde to show that the facts placed before the Sanctioning
Authority and the satisfaction arrived at by it. It is well
settled that any case instituted without a proper sanction
must fail because this being a manifest difficulty in the
prosecution, the entire proceedings are rendered void ab
initio. "
12. Additionally, the I.O. admitted that he did not hand over the tape
recorder used at the time of the trap, and further, he did not find any pink
colour solution inside the bottles marked M.O.-IV and V. P.W.8 also
stated that the date of the charge sheet in NTPC Case Nos. 61 and 62 of
2005 is 10.11.2005 and that the Trap Laying Officer (TLO) had seized
the supervision notes of both cases. So, he submitted that it is also a
point to note that if the charge-sheet in lieu of which the demand was
allegedly made was already submitted before filing of the complaint.
There is a doubt to the question that whether there was any demand even
made after that.
13. The learned Counsel for the appellant submitted that the findings
of the learned trial court are perverse and not based on proper
appreciation of evidence. The appellant is entitled to the benefit of doubt,
as the prosecution has failed to prove its case beyond reasonable doubt,
particularly on the twin requirements of demand and acceptance of
illegal gratification and valid sanction. Hence, the conviction and
sentence imposed on the appellant are liable to be set aside.
14. Mr. Niranjan Moharana, learned Additional Standing Counsel for
the respondent-Vigilance Department submitted that the prosecution had
examined eight witnesses in support of its case and proved twenty-two
documents as well as six material objects. The defence plea was one of
complete denial, with a stance that the complainant, who was an accused
in a case investigated by the appellant, had falsely implicated him by
placing the tainted money in his drawer during his absence.
15. Mr. Moharana, learned Additional Standing Counsel further
submitted that although some witnesses turned hostile, material portions
of their deposition support the case of the prosecution. P.W.1, the
complainant, admitted the FIR, the preparation report, and his own
statements recorded under Section 164 Cr.P.C., which corroborated the
allegations of demand and acceptance. Similarly, P.W.2 and P.W.4
admitted to their prior statements to the I.O. and the documents
indicating demand and recovery. P.W.6, the shadow witness, testified
about the conversation during the trap and the conduct of the appellant.
The evidence of the Trap Laying Officer (P.W.5) and the Investigating
Officer (P.W.8) has also been cited as supporting the case of the
Prosecution.
It is further contended that the statement made by the appellant
during the trap to the complainant--"Jaha Kahithili Anichha"--
establishes the element of demand (Only mentioned by P.W.6 in his
deposition and doesn't corroborate with other witnesses). The
simultaneous positive phenolphthalein test on both hands of the
appellant, as per the prosecution, negates the defence plea that mere
handshake caused the reaction leading to turning the solution pink. It is
also argued that the version of the appellant regarding the complainant
planting the tainted money in his drawer in his absence is highly
improbable given the nature of their relationship and the dynamics
involved.
16. Mr. Moharana, learned Additional Standing Counsel has also
contended that the phenomenon of witnesses turning hostile in trap cases
must be viewed seriously, and that false evidence at trial following
genuine complaints should be deprecated. A request has also been made
for initiation of proceedings against complainants who misuse legal
processes for ulterior motives, in order to protect the integrity of anti-
corruption enforcement.
17. In support of his arguments, learned counsel for the respondent
has placed reliance on the Judgement of Hon'ble Supreme Court in T.
Shankar Prasad v. State of A.P.11, in which it was held thus:-
24. The fact that PW 1 did not stick to his statement made
during investigation does not totally obliterate his
evidence. Even in criminal prosecution when a witness is
cross-examined and contradicted with the leave of court by
the party calling him, his evidence cannot as a matter of
law be treated as washed off record altogether. It is for the
judge of fact to consider in each case whether as a result of
such cross-examination and contradiction, the witness
stands thoroughly discredited or can still be believed in
regard to a part of his testimony. If the judge finds that in
the process the credit of the witness has not been
completely shaken, he may after reading and considering
the evidence of the said witness, accept in the light of the
(2004) 3 SCC 753
other evidence on record that part of his testimony which
he found to be creditworthy and act upon it. As noted
above, PW 1 did not totally resile from his earlier
statement. There was only a half-hearted attempt to
partially shield A-2. PW 1 has categorically stated that he
had paid the money to A-2 as directed by A-1. As noted
above, the plea of A-2 that he had accepted the money as
advance tax has been rightly discarded being contrary to
official records. Evidence of PW 2 with regard to
proceedings on 28-4-1992 has been clearly established.
Evidence of PW 4, the mediator is corroborated by the
evidence of PWs 1, 3, 7 and 8. His report was marked as
Ext. P-13. The same along with the other evidence clearly
establishes the accusations against both the accused. When
money was recovered from the pocket of one of the accused
persons, a presumption under Section 7 of the Act is
obligatory. It is a presumption of law and casts an
obligation on court to operate it in every case brought in
Section 7. The presumption is a rebuttable presumption and
it is by proof and not by explanation which may seem to be
plausible. The evidence of PWs 4, 5, 7 and 8 read with the
evidence of PW 1 established recovery of money from A-2.
A belated and stale explanation was offered by A-2 that the
money was paid towards tax. This plea was rightly
discarded as there was no tax due and on the contrary the
complainant was entitled to some refund. An overall
consideration of the materials sufficiently substantiates, in
the case on hand, the prevalence of a system and
methodology cleverly adopted by the accused that the
demand will be specified when both the accused were
present and thereafter as and when A-1 puts his signature
the party has to meet A-2 at his seat for fixing the seal and
making entry in the register to make the process complete
only after collecting the amount already specified by A-1 in
A-2's presence. The involvement of both of them in a well-
planned and cleverly managed device to systematically
collect money stood sufficiently established on the evidence
let in by the prosecution. Further, A-2 did not offer his
explanation immediately after the recovery of money. A
similar plea of receiving money as advance tax was
rejected and affirmed by this Court in A. Abdul
Kaffar v. State of Kerala [(2004) 9 SCC 333 : (2003) 8
Supreme 804] . It was noted that such a stand was not
taken at the first-available opportunity and the defence was
not genuine. In State of U.P. v. Dr G.K. Ghosh [(1984) 1
SCC 254 : 1984 SCC (Cri) 46 : AIR 1984 SC 1453] it was
observed that in case of an offence of demanding and
accepting illegal gratification, depending on the
circumstances of the case, the court may feel safe in
accepting the prosecution version on the basis of the oral
evidence of the complainant and the official witnesses even
if the trap witnesses turn hostile or are found not to be
independent. When besides such evidence, there is
circumstantial evidence which is consistent with the guilt of
the accused and not consistent with his innocence, there
should be no difficulty in upholding the conviction.
In referring the question regarding Sanction, Mr. Moharana,
learned Additional Standing Counsel for the Vigilance Department
placed reliance on the Judgement of Hon'ble Supreme Court in Binod
Kumar Garg v. State (NCT of Delhi)12 in which the court held thus:
"28. This Court in Ashok Tshering Bhutia v. State of
Sikkim [Ashok Tshering Bhutia v. State of Sikkim, (2011) 4
SCC 402 : (2011) 2 SCC (Cri) 258 : (2011) 2 SCC (L&S)
697] referring to the earlier precedents has observed that a
defect or irregularity in investigation however serious,
would have no direct bearing on the competence or
procedure relating to cognizance or trial. Where the
cognizance of the case has already been taken and the case
has proceeded to termination, the invalidity of the precedent
investigation does not vitiate the result, unless a miscarriage
of justice has been caused thereby. Similar is the position
(2020) 2 SCC 88
with regard to the validity of the sanction. A mere error,
omission or irregularity in sanction is not considered to be
fatal unless it has resulted in a failure of justice or has
been occasioned thereby. Section 19(1) of the Act is matter
of procedure and does not go to the root of the jurisdiction
and once the cognizance has been taken by the court under
the Code, it cannot be said that an invalid police report is
the foundation of jurisdiction of the court to take cognizance
and for that matter the trial."
18. On the strength of these submissions and authorities cited, the
learned Additional Standing Counsel for the respondent-State
(Vigilance) has prayed for dismissal of the present appeal in the interest
of justice.
19. The entire case of the prosecution hinges upon the oral testimony
of P.W.1, P.W.2 and P.W.6. All the three vital witnesses of the
prosecution have turned hostile and were subjected to extensive cross-
examination by the prosecutor only to be unsuccessful in elucidating
anything worth the name of evidence against the appellant. Therefore,
this is a case where neither the demand nor the acceptance could be
proved beyond all reasonable doubt. However, the learned trial Court by
stretching the appreciation of the evidence of P.W.1 and P.W.6 arrived at
a conclusion that the testimony of these two witnesses vis-à-vis the
attending the circumstances is taken into consideration, then the element
of demand and acceptance under the aid of presumptive provision under
Section 20 of P.C. Act could be sufficient to convict the appellant. The
learned trial Court in paragraph-17 of the impugned judgment has
arrived at the following conclusion:-
"17. The case of the prosecution cannot be discarded for
want of evidence of instant demand of P.W.1. The fact of
instant demand can be proved either by direct evidence or
by circumstantial evidence. In that view of the matter,
although the evidence of P.W.6 with regard to hearing of
conversation and asking of OIC-accused "JAHA
KAHITHILI ANICHHA" is suffered from contradiction, yet
his testimony that P.W.1 met the OIC-accused at the
entrance gate and there was a conversation, can be taken
note of being not suffered from any embellishment and
discrepancies. It is further seen from the testimony of P.W.2
as elicited during cross-examination that within two seconds
the vigilance rushed to the spot when P.W.1 met with O.I.C.-
accused. Since, the above evidence on record shows that
P.W.1 met the O.I.C-accused at the entrance gate of the
Police Station and the tainted notes are proved to have
recovered from the table drawer of the accused in his room
and there is nothing on the record to show that O.I.C.-
accused departed for a while from the company of P.W.1
and within some minutes, the vigilance officials rushed to
the spot getting prearranged signal, so in such
circumstances it is hard to believe the testimony of P.W.1
that in absence of the OIC-accused, he put the tainted notes
in his office table drawer. So, such extent of evidence of
P.W.1 that he placed the tainted notes in the office table
drawer of the accused in his absence, cannot be believed
when there is nothing on the record to show that the O.I.C.-
accused after making conversation with P.W.1 at the
entrance gate, departed his company in any way. That
apart, it cannot be imagined that P.W.1, may be a Trade
union leader. would dare to place some currency notes in
the table drawer entering inside the office room of the
O.I.C.-accused that too where the O.I.C-accused was found
to be available at the P.S. That apart, the positive hands
wash of OIC-accused on being taken in chemical solution,
as consistently forthcoming from the evidence of P.W.1,
P.W.6 and P.W.7, is suggestive of the fact that the OIC-
accused had received the tainted notes. The oral testimony
of the witnesses to the above extent is supported by the
opinion of expert who after finding phenolphthalein
substance in such pink colour hands wash solution made his
report vide Ext.19. In view of the above discussion, it is
amply proved in this case that consequent upon initial
demand of bribe, the tainted notes recovered from the
official table drawer of the OIC-accused and the OIC-
accused accepted such currency notes on being handed over
by P.W.1. In view of the above, the contention that there is
no evidence of demand so far P.W.1 is concerned and the
theory of demand is not proved either through the ocular
testimony or circumstantial evidence, cannot be accepted.
P.W.6 states that the O.1.C. accused seeing the vigilance
officials tried to ran away from being escaped from the spot,
but he was caught hold. This part of testimony gains
corroboration from the testimony of the T.L.O. There is
nothing on the record to disbelieve the testimony of official
witness. There being no evidence of any prior enmity of
official witnesses or any axe to grind against the accused is
shown, false implication at their instance does not arise. The
above circumstances of fleeing of OIC-accused from the
spot can be taken as a circumstance of conduct of the
accused. The circumstances brought on record with regard
to shaking of hands by P.W.1 with the OIC-accused does not
anyway cast any doubt over the prosecution case as both
hands wash of the accused shown to have given positive
reaction. Even if believed for a moment that the
phenolphthalein substance transmitted to the hands of the
accused at the time of shaking of hands, the other hand
wash of the accused would not have given positive reaction.
Since, both hands wash of the accused gave positive
reaction on being taken in sodium carbonate solution, the
said circumstance suggestive of the fact that the accused
after receiving the tainted notes handled the same in his
both hands and had kept inside his able drawer. The above
discussed proved circumstances on record point finger
towards the guilt of the OIC-accused. A person may lie, but
the circumstance cannot. The circumstances is suggestive of
the fact of instant demand. Since, the O.I.C.-accused
appears to have received the tainted notes pursuant to his
demand of bribe, it is safely concluded that the O.I.C.-
accused accepted such currency notes fully knowing it to be
bribe. In view of the above discussion, it is concluded that
the OIC-accused pursuant to his demand of bribe accepted
the tainted notes from P.W.1. In view of the demand and
acceptance of bribe is proved in this case through ocular,
documentary and circumstantial evidence, non-examination
of press people present at the spot cannot be taken as a
ground to discard the prosecution case. Had the prosecution
been examined the press people, it would have been better,
but for their non-examination no doubt can be casted upon
prosecution case when otherwise the case of the prosecution
is proved. In view of the fact that no voice sample was
drawn at the time of investigation, the circumstances of tap-
recorder conversation loses its importance while judging the
case either in the prospective of prosecution or of the
defence. With regard to the contention regarding the delay
in lodging F.I.R., as the last demand of bribe was made on
10.11.2005 and the O.I.C.-accused instructed to make
payment of bribe on 23.11.2005, in such circumstances, it
cannot be said that there was delay in lodging F.I.R on
22.11.2005."
20. The appreciation of the evidence by the learned trial Court in so
far as the P.W.1, P.W.2 and P.W6 are concerned falls short in view of
the fact that the P.W.1, the complainant in paragraph-9 of his evidence
has stated that he went inside the NTPC P.S. along with witness Sri
Mohapatra. Sri Mohapatra (P.W.6) waited outside in the verandah. He
went inside the room of the accused but he found the accused was absent
in the room. Therefore, he kept the cash of Rs.5,000/- in the table drawer
of the accused. When the accused subsequently reached, he shook the
hand with the accused. This part of the evidence has gone
uncontroverted despite sustained cross-examination to the said witnesses
by the prosecution after declaring him hostile. From the said evidence, it
could be unambiguously inferred that the phenolphthalein test in so far
as the hands of the accused is concerned, which turned pink is obviously
because of the P.W.1 shaking hand with the accused. It is also apparent
that the accused has not accepted the alleged bribe voluntarily rather in
his absence the bribe money was kept in the drawer. P.W.1 in the cross-
examination further went ahead and stated that the accused had never
asked him to pay money to him. He had only heard from his uncle
Bichhanda Charan Sahoo (P.W.2) that the accused was demanding
Rs.30,000/-. When Bichhanda Charan Sahoo was examined as P.W.2,
the aforementioned version of P.W.1 corroborated as P.W.2 in his cross-
examination by the prosecutor after being declared hostile has stated that
he had never met with the accused in any occasion while he was Officer-
in-Charge of NTPC P.S. He had also stated that he had never attended
any court either as a witness or as an accused before the C.J.M., Angul.
He went on to depose that the Vigilance Police had taken him to the
court when he gave the statement as per the instructions given by the
Vigilance Police to him. He stated that he had no personal knowledge
about the incident. The version of P.W.1 and P.W.2 stood corroborated
with the testimony of P.W.6, who was an official witness. P.W.6 was
working as a Junior Engineer, Section-II, Angul, who is the overhearing
witness, the prosecution has strongly relied upon him. However, he did
not support the prosecution and turned hostile. He in his evidence has
stated that he was sitting inside the Maruti car and he heard the accused
asking the complainant "Jaha Kahithili Anicha". Then he relayed the
signal by rubbing his head and the vigilance staff rushed to the spot.
However, in the cross-examination, he has denied having said to the
vigilance police and has stated that he had not remembered as to who
told the vigilance police that the tainted money is inside the table drawer.
He has also bluntly denied having any knowledge regarding the entire
sequence of events. The evidence of P.W.7 is like adding insult to the
injury for the prosecution case. The prosecution has testified him as an
independent witness. He bluntly stated that he has no knowledge
whatsoever regarding the case.
21. Conjoint reading of evidence of all the aforementioned witnesses
lead to the only conclusion that there was no demand in specific terms.
This aspect is further strengthened from the fact that there was no cause
for demanding the gratification amount. The case of the prosecution is
that the appellant has demanded money from the complainant only to
drop him as an accused in the charge-sheet to be filed by him in the case
pertaining to NTPC Town P.S. Case No.61 of 2005. However, by the
time the alleged bribe was paid, the charge-sheet was already filed in the
said case i.e. NTPC Case Nos. 61 and 62 of 2005. Hence, there was no
occasion for the complainant to oblige the accused-appellant to make the
alleged bribe payment. In so far as the acceptance part is concerned,
from the evidence adduced by the prosecution has clearly emanates that
the bribe money was thrashed upon the appellant, which was neither
demanded nor accepted by the appellant voluntarily. That's precisely the
reason, the learned State Counsel has emphasized that this is a case
where the complainant should be proceeded with for having falsely
deposed. The complainant (P.W.1) not only lodged the complaint
leading to the search and seizure and subsequent registration of F.I.R.
but also has given the statement before the Magistrate under Section 164
Cr.P.C. voluntarily on oath narrating the factum of demand, acceptance
and recovery against the appellant. However, the said complainant
(P.W.1) turned hostile during the trial. Therefore, it presupposes that the
complainant either has lodged the false F.I.R. against the accused or
given false evidence to save the accused-appellant. In either case, the
benefit of the evidence P.W.1 flows in favour of the accused-appellant as
it has created a serious doubt about the prosecution case. It is left open to
the prosecution i.e. the Vigilance Department to proceed against the
complainant, if so advised but the fact remains that on the basis of such
weak evidence, the conviction of the appellant for offences under
Sections 13(2)/13(1)(d) read with Section 7 of the P.C. Act cannot be
safely sustained.
22. In this case, since the evidence adduced by the prosecution to
prove the fact of demand, acceptance and recovery is not adequate. The
issue regarding grant of appropriate sanction to prosecute the appellant
need not be elaborately discussed. However, suffice it to say that the
D.I.G. of Police who alleged to have accorded the sanction which was
exhibited as Ext.22 was admittedly prepared by the S.P. The sanctioning
authority in the present case has not been examined. However, the
sanction order has been proved on record through the I.O. of the case i.e.
P.W.8. Reading of the testimony of the P.W.8 would make abundantly
clear that it is the concerned S.P. who had prepared the draft sanction
order which was eventually placed before the sanctioning authority who,
in turn, signed the sanction order. Therefore, on the basis of the I.O.'s
version, it could be safely inferred that the necessary documents,
materials and the charge-sheet was not placed before the sanctioning
authority, rather it was placed before the Superintendent of Police who
had prepared the draft, which was placed before the D.I.G. of Police,
who in turn, had signed the sanction order. In this regard, much could be
elucidated from the evidence of P.W.8. However, this Court is not
further elaborating the issue because the prosecution in any case has
failed to bring on record sufficient evidence to prove its case beyond all
reasonable doubts in so far as proving the charges brought against the
appellant.
23. Regard being had to the aforementioned discussion, this Court will
not hesitate in any manner to hold that the conviction and sentence
recorded by the Court below is not sustainable as adequate evidence has
not been brought on record by the prosecution, hence, benefit of doubt
goes in favour of the appellant. Accordingly, the judgment of conviction
and order of sentence dated 24.01.2017 passed by the learned Special
Judge (Vigilance), Cuttack in T.R. No.32 of 2009 arising out of Cuttack
Vigilance P.S. Case No.43 of 2005 is set aside and the appellant is set
free from all the charges and the bail bond stands discharged.
24. Accordingly, the CRLA is allowed and disposed of.
(S.S. Mishra)
Judge
The High Court of Orissa, Cuttack
Dated the 30th May, 2025/Swarna
Digitally Signed
Signed by: SWARNAPRAVA DASH
Designation: Senior Stenographer
Reason: Authentication
Location: High Court of Orissa
