Research › Search › Judgment

Orissa High Court · body

2013 DIGILAW 60 (ORI)

Konapalu Surya Narayana v. State of Orissa

2013-03-01

B.K.NAYAK

body2013
JUDGMENT B.K. NAYAK, J. : This Criminal Revision has been filed by the petitioner challenging the order dated 17.8.2011 passed by the learned Special Judge (Vigilance), Jeypore in G.R. Case No.8 of 2010 framing charges under Sections 13(2) read with 13(1)(d) and Section 7 of the Prevention of Corruption Act, 1988. 2.The prosecution case in a nutshell is that while the petitioner was working as Revenue Inspector, Chalikamba, one Purna Chandra Sabar filed an application before the Tahasildar, Gunupur for mutation of certain land in his favour which he had purchased on 2.5.2009. The Tahasildar forwarded the mutation application, i.e., M.C. No.1438 of 2009 to the present petitioner for enquiry and report. Thereafter, the applicant, Purna Chandra Sabar went to the petitioner and requested him to furnish the enquiry report to the Tahasildar whereupon the petitioner demanded Rs.500/- per acre from him for furnishing the enquiry report. When Sri Sabar expressed his inability to pay the amount, the petitioner asked him that unless he pays Rs.2,000/-, he report will not be sent. Finding no other alternative, Sri Sabar under compulsion paid Rs.500/- to the petitioner and about five days thereafter met the petitioner and expressed his inability to pay any further amount. The petitioner, however, asked him to pay Rs.1,000/- more. Finding no other alternative, Sri Sabar agreed to pay the same on 19.2.2010 at his office and reported the matter to the Vigilance Department. A trap was arranged for 19.2.2010 and accordingly, independent officials, namely, Tankadhar Jani, Senior Clerk, Office of the District Agriculture Officer, Rayagada and Sri Debi Prasad Nayak, Assistant Agriculture Officer, Kolnara, District-Rayagada were called to the office of the D.S.P., Vigilance, Rayagada on 18.2.2010 and requested to assist the vigilance officials for execution of the confidential assignment. Accordingly, ten number of hundred-rupee notes brought by the complainant were smeared with phenolphthalein power on both sides and a solution of sodium carbonate was prepared and other formalities were done. Thereafter, on 19.2.2010, the trap party went to Chalkamba. As per the previous plan, the trap party remained at a little distance in plain clothes whereas, the informant was sent with the trained currency notes along with Tankadhar Jani, the accompany/over-hearing witness to the office of the petitioner. Thereafter, on 19.2.2010, the trap party went to Chalkamba. As per the previous plan, the trap party remained at a little distance in plain clothes whereas, the informant was sent with the trained currency notes along with Tankadhar Jani, the accompany/over-hearing witness to the office of the petitioner. While the informant entered inside the office room of the petitioner, the over-hearing witness, Tankadhar Jani stayed near the door from where both the petitioner and Sri Sabar were visible and audible. Seeing the complainant, the petitioner asked him for money and when the complainant gave him the money, the petitioner instructed him to keep the same on his table. Accordingly, the complainant kept the same on the table of the petitioner. Seeing this transaction, the over-hearing witness-Tankadhar Jani gave prearranged signal to the remaining members of the trap team whereupon the members of the trap team rushed to the office of the petitioner. The Deputy Superintendent of Police, Vigilance gave the identities of the members of the trap team, after which the face of the petitioner turned pale. Being confronted, the complainant stated that as per the instruction of the petitioner, he kept the tainted bribe money of Rs.1,000/- on the table of the petitioner. On interrogation, the petitioner denied to have demanded and accepted the bribe of Rs.1,000/- from the complainant. The left and right hand finger wash of the petitioner was taken one after another in the Sodium Carbonate Solution, but there was no change in colour. On being asked, the petitioner produced the mutation record of the complainant consisting of 18 sheets including the enquiry report of the petitioner dated 18.2.2009, the Mutation Record was seized by the vigilance inspector. 3.On completion of investigation, charge sheet was submitted. 4.It was submitted by the learned counsel for the petitioner that since the petitioner had not touched the tainted currency notes which was placed by the complainant on the petitioner’s table, the trap has failed and, therefore, the offence under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 cannot be said to have been made out. Therefore, no charge for those offences could have been framed against the petitioner. Therefore, no charge for those offences could have been framed against the petitioner. 5.Learned Standing Counsel for the Vigilance Department, on the other hand, submitted that even if the petitioner had not touched the tainted money of Rs.1,000/- but allegation of the complainant and statements of the witnesses, particularly, the overhearing witness., Tankadhar Jani goes to clearly show that there was a conversation between the complainant and the petitioner about the money and accordingly, the complainant offered the money to the petitioner, who asked him to keep it on the table. Therefore, merely because by the time of arrival of the vigilance slethus, the petitioner had not touched the tainted money, it cannot be stated that no offence has been made out. 6.It has been held, by the apex Court in the decision reported in AIR 1990 SC 1962 (Niranjan Singh Karam Singh Punjab v. Jitendra Bhimraj Bijja and others) that at the stage of framing of charge, the Court is required to evaluate the material and documents on record with a view to find out if the facts emerging therefrom taken at their face value discloses the existence of all the ingredients constituting the alleged offence. The Court may for this limited purpose shift the evidence. The apex Court in the case of Union of India v. Prafulla Kumar Samal reported in AIR 1979 SC 366 observed that while considering the question of framing the charges the Court has the undoubted power to shift and weigh the evidence for the limited purpose of finding out whether or not, a prima facie case against the accused has been made out. Where the materials placed before the Court disclosed grave suspicion against the accused which has not been properly explained, the Court will be fully justified in framing a charge and proceeding with the trial. The test determine a prima facie case would naturally depend upon the facts of each case and it is difficult to lay down a rule of universal application. 7.Considering the facts of the present case in the light of the dictum as aforesaid, it is found that admittedly, the mutation case record of the complainant had been forwarded to the petitioner for enquiry and report. 7.Considering the facts of the present case in the light of the dictum as aforesaid, it is found that admittedly, the mutation case record of the complainant had been forwarded to the petitioner for enquiry and report. The statements of the independent overhearing witness-Tankadhar Jani and that of the complainant clearly show that on seeing the complaint, the petitioner asked for the money and accordingly, the complainant offered the same and on the direction of the petitioner, he kept the money on the table of the petitioner. Even though the petitioner did not touch the money, still then, the statements clearly reveal the factum of demand and acceptance of bribe. Even otherwise, it is the allegation of the complainant that on the demand of the petitioner he had earlier paid Rs.500/- and the balance demand was finally settled at Rs.1,000/-. Though in his statement recorded under Section 164, Cr.P.C.., the witness, Tankadhar Jani did not say about the demand of the money by the petitioner and placing of the tainted money by the complainant on the table of the petitioner as per the instruction, that cannot be a ground to disregard the statement given by the witness before the Investigating Officer. In any event, both the statements recorded under Sections 161 and 164, Cr.P.C. are to be used only for contradicting the maker of the statements. 8.Considering the statements of the witnesses and entire materials of record, I am of the view that the materials disclosed grave suspicion against the petitioner in the facts and circumstances of the case and, therefore, the framing of charges against him by the impugned order cannot be faulted with. The Criminal Revision, being devoid of merit, is dismissed. Revision dismissed.