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2013 DIGILAW 215 (ORI)

Antaryami Bihari v. State of Orissa

2013-07-17

B.K.NAYAK

body2013
JUDGMENT B.K. NAYAK, J. In this appeal the appellant challenges the judgment dated 29.01.2011 passed by the learned Special Judge (Vigilance), Bhubaneswar in T.R. No.35 of 1999 whereby the learned Special Judge has convicted the accused-appellant under Section 13(2) read with Section 13(1) (d)/7 of the Prevention of Corruption Act,1988 (in short ‘the P.C. Act’) and sentenced him to undergo R.I. for one year and to pay a fine of Rs.1,000/-, in default to undergo R.I. for one month under Section 13(2) read with Section 13 (1) (d) of the P.C. Act and to undergo R.I. for six months and to pay a fine of Rs.500/-in default to undergo R.I. for fifteen days under Section 7 of the P. C. Act. Both the sentences are to run concurrently. 2. The prosecution case is that at the relevant point of time the appellant was working as Junior Clerk in the office of the Tahasildar, Bhubaneswar. The complainant-Sudhansu Sekhar Rath had applied to the Tahasildar, Bhubaneswar for issuance of income and residential certificates supported by an affidavit and had handed over the applications to the appellant on 29.05.1998. The certificates were necessary for availing loan under the P.M.R.Y. Scheme by the complainant. As 30.05.1998 was the last date for submission of the loan application form under the P.M.R.Y Scheme, the complainant requested the appellant to put up his file before the Tahasildar immediately and to issue the required certificates. But the appellant asked him to give him Rs.150/-towards his dues for putting up the file forthwith. The complainant having expressed his inability to pay such amount, the appellant told him that others were paying the same amount and that if he would not pay, his work could not be done. Under compulsion the complainant gave Rs.50/-to the appellant but the latter not being satisfied with the same asked him to bring the balance Rs.100/-on the next day and to receive his income and residential certificates. The complainant, therefore, agreed to pay the balance amount to the appellant and reported the matter before the S.P. Vigilance, who directed the O.I.C., Bhubaneswar Vigilance Police Station to register a case against the appellant and lay the trap. The complainant, therefore, agreed to pay the balance amount to the appellant and reported the matter before the S.P. Vigilance, who directed the O.I.C., Bhubaneswar Vigilance Police Station to register a case against the appellant and lay the trap. Accordingly, the O.I.C., Vigilance Police Station registered the case as Bhubaneswar Vigilance P.S. Case No.29 dated 29.05.1998 under Section 13(2) read with Section 13 (1) (d)/7 of the P.C. Act and Sri N. Jena, Inspector was directed to lay the trap and Inspector R.N. Sahu was directed to take up investigation. Thereafter, trap was laid and Sri Sahu investigated the case obtained sanction from the Collector, Khurda to prosecute the appellant and finally after completion of investigation, submitted charge-sheet against the appellant. 3. The appellant denied the allegations made against him and took the further plea that while he was busy in his official work somebody inserted some money in his shirt pocket and while he was bringing out the money from his shirt pocket, two persons came and caught hold of both his hands and the person holding his left hand instructed the person holding his right hand to take the money from him and accordingly he gave the money to that person. 4. In order to prove its case, the prosecution examined seven witnesses. P.W.6 is the complainant, P.W.3 is the over hearing witness, P.W.4 is the Magisterial witness, P.W.7 is the Investigating Officer, P.W.5 is another Investigating Officer, who has only submitted charge sheet, P.W.1 is the Collector, Khurda, who accorded sanction for launching prosecution against the appellant and P.W.2 is the Assistant Director of SFSL, Rasulgarh, who had examined the exhibits. However Sri N. Jena, Inspector, who was the Trap Laying Officer could not be examined as he was already dead. Besides oral evidence, the prosecution also relied on some documents and material objects. The appellant in support of his defence, examined one Peon of the Tahasil Office. On consideration of the evidence, the court below has found the appellant guilty of the charges and accordingly, passed the impugned judgment of conviction and sentence. 5. Besides oral evidence, the prosecution also relied on some documents and material objects. The appellant in support of his defence, examined one Peon of the Tahasil Office. On consideration of the evidence, the court below has found the appellant guilty of the charges and accordingly, passed the impugned judgment of conviction and sentence. 5. In assailing the impugned judgment, the learned counsel for the appellant submits that the demand and acceptance of bribe which are the necessary ingredients of the offence have not been proved by the prosecution and the recovery of money from the appellant, in the circumstances, therefore, is not sufficient to prove his guilt. It is his further submission that the learned trial court has convicted the appellant not on legal evidence but by relying on the statements of the prosecution witnesses, particularly those of P.W.6 and P.W.3 recorded under Section 161, Cr.P.C. during investigation, which is not permissible under law. 6. Learned Standing Counsel for the Vigilance Department, on the other hand, submits that in order to record the order of conviction and sentence, the trial court has properly assessed the evidence on record and there is no infirmity in the impugned judgment to be interfered with. He also submits that the tainted money having been recovered from the appellant the presumption under Section 20 of the Prevention of Corruption Act would arise and therefore the conviction of the appellant is well founded. 7. P.W.6 is the informant. He admits in his evidence to have lodged the F.I.R. (Ext-15). He also stated in his evidence that on 29.05.1998 he applied in the Tahasil office, Bhubaneswar for residential and Income Certificate for availing a loan under P.M.R.Y. scheme and the last date for submission of loan application was 30.05.1998. He submitted the application for residential and Income Certificate to the appellant, who demanded Rs.150/-and the informant paid only Rs.50/-under protest and the appellant asked him to come on the next day with the balance amount of Rs.100/-and, therefore, on that very day the informant lodged the F.I.R. After lodging of the F.I.R. he was instructed to report in the Vigilance Office on the next day and he appeared at 8.00 A.M. before the D.S.P., Mohanty Babu with whom two Vigilance Inspectors, one A.S.I. and witness, Lingaraj Mishra (P.W.3) and Niranjan Mishra (P.W.4) were present. The D.S.P. introduced the informant to the said witnesses and disclosed the allegations made in the F.I.R. to the said witnesses. Thereafter, the informant gave two G.C. notes of Rs.50/-denomination to the D.S.P., who applied some powder to the said notes. P.W.4-Niranjan Mishra noted the numbers of the currency notes given by the informant on a piece of paper. The notes were kept in a folded paper and the same was given to the informant with instruction to give the same to the appellant while obtaining the certificate from him. As per instruction he went to the Tahasil Office accompanied by P.W.3, who was engaged as the overhearing witness and the other vigilance staff and P.W.4 remained waiting outside with instruction to P.W.3 to see the transaction and give signal. Prior to that a preparation report had been prepared at the vigilance office and Ext.3 is the said preparation report. Inside the Tahasil office, the informant entered into the room where the appellant was sitting and on his asking the appellant gave his certificate which he had applied for and thereafter the informant inserted the tainted currency notes in left side pocket of the shirt of the appellant. The informant (P.W.6) having not deposed about any demand of money by the appellant the prosecution with the permission of the court under Section 154 of the Evidence Act cross-examined P.W.6 during which he denied suggestion made by the prosecution that after the trap his statement was recorded by the Vigilance Inspector, Mr. Jena and that he stated that while entering into the office room of the appellant, P.W.3 was standing on the Verendah near the door and that when he enquired as to if his certificate had been made ready, the appellant demanded the money and he replied in the affirmative and handed over the tainted money to the appellant, who kept the money inside the shirt pocket. Though he admitted to have put his signature in the detection report, he explained that he had not read the same and only put his signature thereon. Though he admitted to have put his signature in the detection report, he explained that he had not read the same and only put his signature thereon. He however admits that soon after he put the money in the pocket of the appellant, the Vigilance party came to the spot and being asked by P.W.4, the appellant brought out the tainted money from his left side shirt pocket and thereafter the hand wash of the appellant was taken and preserved in a separate glass bottle and that P.W.4 compared the number of the tainted notes with the number, he had noted earlier on paper. He also admits that his hand wash was taken and the shirt pocket wash of the accused was also taken which turned to pink in colour. He denied the suggestion in his cross-examination by the prosecution that he had read the contents of the preparation report and detection report before putting his signature on them. In his cross-examination, he admits that after the appellant handed over the certificate to him, and while the appellant was otherwise busy, he inserted the tainted money in his shirt pocket. 8. In its judgment the trial court has stated that the statement of the informant recorded during investigation was proved by the subsequent Investigating Officer (P.W.7). In such statement before the I.O. The informant stated about the demand and acceptance of bribe by the appellant soon before the trap and subsequent recovery of the tainted money from his possession by the vigilance officials of the trap party. The trial court has relied upon this statement of the informant recorded under Section 161 of the Cr.P.C. and held that for reasons best known to him the informant was deposing falsely suppressing the fact of demand and acceptance of bribe by the appellant. The trial court has however not taken into consideration the sworn testimony of the informant (P.W.6) when questioned by the public prosecutor that he did not make any such statement before the Investigating Officer. The trial court has further held that the evidence with regard to the demand and acceptance by the appellant at the time of trap has been corroborated by P.W.3. The trial court has further held that the evidence with regard to the demand and acceptance by the appellant at the time of trap has been corroborated by P.W.3. P.W.3-Lingaraj Mishra, a Junior Clerk in the office of the C.T.O. deposed that being called by the vigilance police he and P.W.4 went to the vigilance office at 8.00 A.M. on 30.05.1998 and there the informant was introduced to them and the informant described about the allegations made in the F.I.R. and accordingly two Rs.50/-notes produced by the informant were mixed with some powder and he was instructed to accompany the informant to the office of the appellant and hear the conversation between the informant and the appellant and see the demand and acceptance of the tainted money by the appellant. It is also evident from the evidence that he accompanied the informant to the office room of the appellant while the other members of the trap party were keeping position near the Tahasil office waiting for signal and that the informant entered into the office room and the appellant enquired about the money and the informant having answered in affirmative the appellant asked for making payment. The informant handed over the money, which the accused received and then he (P.W.3) gave signal by rubbing his hand on the fore head. Thereafter the trap party members rushed to the office of the appellant, caught hold of his hands, disclosed the identity and on their challenge the appellant admitted to have received the money and thereafter other formalities like bringing out the tainted money and giving the same to P.W.4 for comparing its number with the number noted by him and the formality with regard to taking of hand wash and shirt pocket wash of the appellant were observed. But in his cross-examination P.W.3 admitted that he had not heard the conversation between the appellant and the informant and that he saw the informant inserting the currency notes in the pocket of the appellant and seeing the above he gave signal whereafter the vigilance staff came to the spot and that on being challenged by the vigilance party the appellant stated that he had not received the money from the informant but the latter inserted the money in his pocket. P.W.3 in the cross-examination was again put leading questions by the prosecution but he denied the suggestions about giving any statement before the Investigating Officer to the effect that the informant entered into the office room of the accused, who enquired about the money and the informant having replied in affirmative the appellant asked for payment and then the informant handed over the money which the accused received. Evidence of P.W.3 reveals that he is making prevaricating statements at different stages about the demand and receipt of money by the appellant. He has in his cross-examination given a go by to his evidence in chief. Therefore, he is not at all a reliable witness. The observation of the trial court that the evidence of P.w.3 corroborates the evidence of the informant with regard to demand and acceptance of money by the appellant is wholly misconceived since no where the informant has stated that the appellant demanded the money in the office room and he gave the same, which the appellant accepted. Rather the trial court has relied much on the statement of the informant recorded under Section 161 of the Cr.P.C., though such statement is not substantive evidence. It has also not considered credibility of P.W.3. The apex Court in the case of Rahebdra Singh v. State of U.P. & Anr.: (2007) 38 OCR (SC) 355 held as under : “6. xxx xxx A statement under Section 161 Cr.P.C. is not a substantive piece of evidence. In view of the proviso to Sub-section (1) of Section 162 Cr.P.C. the statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Therefore, the High Court committed a manifest error of law in relying upon wholly inadmissible evidence in recording a finding that Kapil Dev Singh could not have been present at the scene of commission of the crime. 9. It transpires from the evidence of P.W.4 and other official witnesses including that of P.Ws.6 and 3 that the tainted money was brought out from the pocket of the appellant but it is the evidence of P.Ws.6 and 3 and D.W.1 that the informant himself inserted the tainted money inside the pocket of the appellant without any demand for the same having been made by the latter. It also transpires that he has not personally received the money. It also transpires that he has not personally received the money. There is no other evidence on record about demand of money by the appellant and acceptance of the same by him from the informant. The trial court has apparently committed a serious illegality by relying upon the statement of the informant recorded under Section 161 of the Cr.P.C. by the Investigating Officer. Therefore, mere recovery of the tainted money without proof of any demand by the appellant and acceptance by him cannot be sufficient to convict the appellant as has been held by the apex Court in the cases of State of Kerala & Anr. V. C.P. Rao, (2011) 49 OCR (SC) 601, C.M. Girish Babu v. CBI, Cochin, High Court of Kerala : 2009 (3) SCC 779 and Suraj Mal v. State (Delhi Admn.): 1979 (4) SCC 725 . 10. The learned Standing Counsel for the Vigilance Department, on the other hand, has relied upon the decisions of the apex Court reported in 2004 CRI. L. J.884 : T. Shankar Prasad v. State of Andhra Pradesh and AIR 2012 SC 2263 : Narendra Champaklal Trivedi v. State of Gujarat and contended that presumption under Section 20 of the Act will apply in the facts and circumstances of the case. The decision in the case of T. Shankar Prasad (supra) reveals that the accused in that case received the tainted money and, therefore the court raised the presumption under Section 20 of the Act. Similarly in case of Narendra Champaklal Trivedi (supra) there was clear evidence of the shadow witness that there was demand and acceptance of money by the accused. In the instant case there is no reliable evidence at all that the appellant demanded the money and received the same from the informant. The evidence that the informant himself inserted the money in the pocket of the appellant does not amount to acceptance of the money by the appellant. The evidence of D.W.1 rather reveals that when money was inserted inside the pocket the appellant raised protest and was bringing it out and then the vigilance party reached there. In the aforesaid circumstances, the decisions cited by the learned counsel for the Vigilance Department have no application to the facts and circumstances of the present case. The evidence of D.W.1 rather reveals that when money was inserted inside the pocket the appellant raised protest and was bringing it out and then the vigilance party reached there. In the aforesaid circumstances, the decisions cited by the learned counsel for the Vigilance Department have no application to the facts and circumstances of the present case. The evidence, as discussed above, goes to show that there is grave doubt about demand and acceptance of bribe by the appellant and, therefore, the benefit of such doubt shall go to the appellant. 11. In the light of the discussion made above, I find the appellant not guilt and accordingly the impugned judgment and order of conviction and sentence are set aside and the appellant is acquitted of the charges. The appeal is thus allowed. Appeal allowed.