Research › Search › Judgment

Orissa High Court · body

2011 DIGILAW 325 (ORI)

Debananda Das v. State of Orissa

2011-06-22

SANJU PANDA

body2011
JUDGMENT S. PANDA, J. — This appeal is directed against the judgment dated 31.10.2006 passed by the learned Special Judge (CBI), Bhubaneswar in T.R. No.6 of 2003 convicting and sentencing the appellant for commission of offence under Section 7 read with Sections 13(1)(d) and 13(2) of the Prevention of Corruption Act (in short, “the Act”). 2.The facts leading to the prosecution case are as follows: The complainant-Kasinath Hota had applied for a new telephone connection for operating a public call booth. He had deposited the requisite fees with the Department and an advice note was issued in his favour. The complainant on several occasions met the accused and requested him to provide the connectivity as the accused was then serving as a regular Mazdoor incharge of Manikagoda Exchange. The accused demanded an illegal gratification of Rs.1000/- from the complainant on 8.1.2003. Therefore, on 11.1.2003 the complainant lodged an FIR before the SP, CBI, Bhubaneswar who directed G.R. Mohanty, Inspector, CBI, Bhubaneswar to take up the investigation of the case. A trap was arranged on the same date. At the instance of the Inspector, CBI, the complainant, two other independent witnesses and other staff of the CBI convened a pre-trap discussion and the usual demonstrations were made by the CBI officials before the witnesses. The complainant produced two five-hundred rupee G.C. notes which were tainted with phenolphthalein powder. The notes were kept inside the shirt pocket of the complainant. He was instructed to hand over the same to the accused only on demand. Thereafter, the trap party proceeded to the spot. Arriving there at about 6 P.M. the complainant accompanied by one Rasananda Munda proceeded to the house of the accused. The accused was sitting on the front verandah of his house. Seeing the complainant, he demanded the cash. The complainant handed over the currency notes to him. Then as per the previous arrangement, the accompanied witnesses gave indication by beeping a torch light thrice. The trap laying party along with other CBI officials and the other independent witnesses proceeded to the spot and challenged the accused that he had accepted the bribe money from the complainant. Though the accused denied his complicity at first, he admitted to have done so. Thereafter, he was taken to the entrance room of his house where his hands were dipped in sodium carbonate solution which turned pink. Though the accused denied his complicity at first, he admitted to have done so. Thereafter, he was taken to the entrance room of his house where his hands were dipped in sodium carbonate solution which turned pink. Such pink colour-wash of both his hands were kept in two separate bottles which were duly sealed and signed by the CBI officials and witnesses. As the accused shouted that he had been falsely implicated by the complainant in a CBI case, a crowd of local residents gathered there and snatched away the accused from the clutches of the CBI officials. The stand taken by the accused at the first instance is that the complainant on the previous occasion (Raja Sankranti day of 2002) had taken a sum of Rs.1000/- from him for treatment of his ailing niece which he not only did not refund the amount in spite of his several demands earlier but also on the pretext of refunding the amount got him trapped by CBI officials by raising false and vexatious allegations that he wanted illegal gratification of Rs.1000/- for providing telephone connectivity. The local people assaulted the complainant as well as the CBI officials because of which he had been false implicated in the case. 3.The plea of the defence is one of complete denial reiterating the above facts. 4.In support of the case, the prosecution examined as many as six witnesses and the defence examined three witnesses. The prosecution exhibited nine documents which were marked Exts. 1 to 9. The defence did not produce any documentary evidence. The material objects were marked as M.Os. I to IV. P.W.3-Ekamra Kabi is the complainant. P.W.2-Ratan Majhi is an officer of Allahabad Bank. P.W.4-Rasananda Munda is an officer of Canara Bank who accompanied the complainant to pay the G.C. notes in question to the accused. P.W.5 is the Inspector of CBI who was a trap laying officer. P.W.1 is a S.D.O.(T), B.S.N.L., Khurda who approved the application of the complainant and feasibility report, etc. for giving telephone connection to the complainant. P.W.6 is the Inspector, CBI, Bhubaneswar who after completion of investigation filed charge-sheet against the accused. The accused examined himself as D.W.3 and two other witnesses are Rohit Kumar Mallik and Ajaya Kumar Pradhan who had been examined to establish the defence case that the accused accepted the bribe money for giving telephone connection to the complainant. P.W.6 is the Inspector, CBI, Bhubaneswar who after completion of investigation filed charge-sheet against the accused. The accused examined himself as D.W.3 and two other witnesses are Rohit Kumar Mallik and Ajaya Kumar Pradhan who had been examined to establish the defence case that the accused accepted the bribe money for giving telephone connection to the complainant. The complainant had taken a friendly loan from the accused for the treatment of his niece much prior to the trap, but instead of returning the same, the accused had been falsely implicated in the case. 5.The trial court after analyzing the evidence of the parties came to the conclusion that the prosecution has proved its case beyond reasonable doubt that the accused demanded and accepted Rs.1000/- from the complainant-Kasinath Hota on 11.1.2003 at about 6 PM at Manikagoda for giving a telephone connection. The accused being a public servant by corrupt and illegal means and by abusing his official position obtained pecuniary advantage for himself to the tune of Rs.1000/- from the complainant to give telephone connectivity. Therefore, he is liable for the punishment for commission of offence under Section 7 read with Sections 13(1)(d) and 13(2) of the Act. 6.Learned counsel appearing for the accused-appellant submitted that the prosecution has failed to prove its case as the positive statement of Sri Ekamra Kabi (S.D.O., Telecom, Khurda) (P.W.1) is that till middle of January, 2003 the booth was not ready. Therefore, the demand of the accused to supply connectivity did not arise. As such, the said aspect rendered by the prosecution case is not acceptable. The accused-appellant from the first instance had taken a stand that the complainant had taken a friendly loan from him and without repaying the same he falsely implicated the accused which is more plausible as the local people at the time of trap surrounded the trap party and also assaulted the complainant. P.W.3 the complainant in his evidence stated that P.W.2 Ratan Majhi went with him as over-hearing witness. However the prosecution case is that P.W.4-Rasananda Munda was the over-hearing witness. Therefore, the evidence of P.W.3 can be regarded as a man who was interested to see the success of the prosecution case. Therefore, it would be unsafe to accept the evidence of the complainant without independent and sufficient corroboration in respect of material aspects. However the prosecution case is that P.W.4-Rasananda Munda was the over-hearing witness. Therefore, the evidence of P.W.3 can be regarded as a man who was interested to see the success of the prosecution case. Therefore, it would be unsafe to accept the evidence of the complainant without independent and sufficient corroboration in respect of material aspects. The positive statement of P.W.1 was that till middle of January, 2003 the booth was not ready. Further, those aspects support or probabilise the case of the defence with regard to refund of Rs.1000/- by the complainant to the accused which he had taken earlier. He further submitted that the demand of illegal gratification being a sine qua non for constitution of an offence under the Act and for failure of the prosecution to establish the same, in the present case, the appellant is entitled to an acquittal. 7.Learned counsel appearing for the CBI submitted that the pre-trap memorandum (Ext.3) which was not disputed by the accused and corresponds to the notes produced in the Court coupled with Ext.5 which has been admitted into the evidence on admission to prove its case concretized the case of the prosecution. From all these materials coupled with the independent witnesses, the only conclusion can be drawn is that the accused demanded the money and accepted the same which was not his legal remuneration. Therefore, a presumption can be drawn against the accused that he accepted the illegal gratification from the complainant. Hence, the trial Court has rightly convicted the accused and the finding of the trial Court should be confirmed. 8.From the aforesaid rival submissions of the parties and after going through the records, it appears that the prosecution in order to bring home the charges examined the complainant and two independent witnesses P.Ws. 2 and 4. From the evidence of the prosecution witnesses, it transpires that the complainant (P.W.3) is quite educated and he is a journalist. The complainant could have duly brought to the notice of higher authorities regarding the illegal demand made by the accused despite their instructions to provide telephone connection. But there was no such complaint made before the departmental authorities like the SDO (P.W.1) or JTO. The complainant also stated in his evidence that the accused had given telephone connection to his house one year prior to the occurrence (January, 2002). But there was no such complaint made before the departmental authorities like the SDO (P.W.1) or JTO. The complainant also stated in his evidence that the accused had given telephone connection to his house one year prior to the occurrence (January, 2002). At the time of installation of such line, the accused did not demand anything. The statement of SDO (P.W.1) is that till middle of January, 2003 the booth for which the complainant had applied for telephone connection was not ready. The complainant had earlier taken Rs.1000/- from the accused but did not refund the same despite several approaches made by the accused as revealed from the uncontroverted testimony of D.W.3. As such, the complainant was interested to see the success of the prosecution case as he bore grudge against the accused and it was a crucial factor and was the reason for concoction of a false story using the excuse of repayment of the loan as a means of reaching the accused on the vital day. Therefore, it would be unsafe to accept the evidence of the complainant without independent and sufficient corroboration on material aspects. 9.Law is well settled that in a trap case, the evidence of a decoy has to satisfy a double test. The evidence must be reliable and if this test is satisfied, it must be sufficiently corroborated. 10.Since the evidence of the complainant is not trustworthy, his evidence does not create confidence and the same is liable to be discarded. Further the over-hearing witness as per the complainant was P.W.2. However, as per the prosecution case P.W.4 was the over-hearing witness and on that discrepancy the evidence of P.W.3 was not corroborated by the independent witnesses. Further, the prosecution has failed to prove through P.W.4 that the accused demanded bribe for giving telephone connection as alleged. P.Ws. 3 and 4 in their evidence stated that on being asked by the accused as to whether he had brought money., P.W.3 answered affirmatively and handed over the same which was in no way inconsistent with the case of the defence since the complainant had taken the money from the accused prior to the incident for the treatment of his niece. P.Ws. 3 and 4 had not stated that the accused demanded money for connection of the telephone line. P.Ws. 3 and 4 had not stated that the accused demanded money for connection of the telephone line. That apart, there is a discrepancy regarding further demand of Rs.100/- by the accused as it reveals from the evidence of P.Ws. 3 and 4. The prosecution has also not brought any material on record to show that along with the accused other workers were there to draw the line so that the accused would demand another Rs.100/- as alleged. 11.The above lacuna and doubtful features render, the prosecution case unbelievable. 12.P.W.2 who was a member of the raiding party also stated in his examination-in-chief that “the accused shouted that the complainant had taken a loan of Rs.1000/- from him, but getting him arrested through CBI on the date of occurrence”. That was the immediate reaction of the accused. Therefore, his explanation regarding demand of money is more plausible than the prosecution case. The aforesaid statement of P.W.2 was also corroborated by the evidence of the complainant (P.W.3) who, in paragraph-14 of his cross-examination, stated “When asked by the Inspector CBI, the accused also disclosed that he accepted the money given by him to me as friendly loan. The villagers got excited as they alleged that I falsely implicated the accused in this trap case. Villagers for that reasons shouted and assaulted me by pulling my hair.” 13.The apex Court in the case of T. Subramanian v. State of Tamilnadu, 2006 (1) SCALE 116 has held that the explanation given by the appellant immediately after the incident clearly explains all the circumstances and raises not only reasonable but very serious doubt about the amount having been received by him as illegal gratification. 14.Further in the case of Punjab Rao v. State of Maharastra, (2002) 10 SCC 371 , the apex Court accepting the explanation given by the accused with regard to receipt of money handed over by the complainant even though such explanation was not immediately offered but was given in course of recording of his statement under Section 313 Cr.P.C. during trial has held that it is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. 15.Since it is held that in the present case the prosecution case is unbelievable and the plea of the accused is more plausible and in view of the decision of the apex Court referred to in the above paragraphs, this Court sets aside the impugned order of conviction and sentence passed by the trial Court. The appeal is accordingly allowed. The bail bond furnished by the accused-appellant stands discharged. Appeal allowed.