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2014 DIGILAW 166 (ORI)

Bhagirathi Pera v. State of Orissa

2014-03-12

S.K.MISHRA

body2014
JUDGMENT : S. K. MISHRA, J. – In this appeal, the appellant, who has been convicted for the offence under Section 7 of the Prevention of Corruption Act, 1947 (for brevity "the Act"), has assailed the judgment passed by the learned Special Judge, Vigilance, Sambalpur in T.R.Case No. 39 of 1999. 2. The facts of the case, shorn of unnecessary details are that the complainant had been sanctioned Rs. 50,000/- by the D.I.C., Sambalpur under the Pradhan Mantri Rojgar Yojana (P.M.R.Y.) Scheme to open a fertilizer shop. For this purpose, he applied for licence to the District Agricultural Office (D.A.O.), Sambalpur. He went to the said office and met the accused, who was a Senior Clerk of that office dealing with such licence. The accused gave him 'O' Form taking Rs. 10/- and asked him to fill up the same containing signature of the fertilizer dealer along with non-assessment certificate from the Sales Tax Officer and one SBI Challan of Rs. 75/-. The complainant produced all the documents before the accused and requested him to issue the licence. The accused told that the documents should be sent to the District Agriculture Office, Bhubaneswar and demanded Rs. 200/- to put up the file. In spite of repeated requests, the accused remained adamant and asked the complainant to come with Rs. 200/-. The complainant, therefore, lodged FIR before the Vigilance Police, on the basis of which a trap was laid. In a pre-trap exercise, the complainant produced two hundred rupees GC notes, which were smeared with phenolphthalein powder and kept in the pocket of the complainant with instructions to give the same to the accused on demand. The Additional C.T.O., Khageswar Naik was selected as the Magistrate, who noted the numbers of the notes in a paper. One Chittaranjan Naik (P.W.2) was selected to accompany the complainant for passing of the bribe money to the accused and to give prearranged signal to the raiding party. Then, the complainant and P.W.2 along with raiding party proceeded to the office of the D.A.O. The complainant and P.W.2 went to the office of the D.A.O. The members of the raiding party took position near the office. The complainant entered into the room of the accused. Seeing him the accused asked if he had brought the money and when he replied in affirmative, he demanded the money and the complainant gave the tainted money to him. The complainant entered into the room of the accused. Seeing him the accused asked if he had brought the money and when he replied in affirmative, he demanded the money and the complainant gave the tainted money to him. Receiving signal from the shadow, i.e. P.W.2. the raiding party arrived there. The trap link officer challenged the accused for having accepted Rs. 200/- as bribe. The accused kept sum. His handwash was taken in sodium carbonate solution, which turned pink. He brought out the tainted money from his pocket. The Magistrate accompanying raiding party compared the numbers of currency recovered from his pocket and tallied the same with the numbers of currency noted earlier. The shirt pocket of the accused was dipped in sodium carbonate solution, which turned pink. Seizure was done. Thereafter, detection report was prepared by the Vigilance Office. 3. The defence took the plea of complete denial. The accused contended that the complainant did not file any application for fertilizer licence before him. He did not said to the complainant to come with Rs. 200/-. He claimed that the complainant suddenly thrust money into his pocket. He stated as to what the complainant put his pocket. At that time, the Vigilance came and he brought out the money. Then, his handwash was taken. 4. In support of the prosecution, five witnesses have been examined whereas no witness has been examined on behalf of the defence. P.W.3 happens to be the complainant. P.W.2 happens to be the shadow witness, who accompanied the decoy. P.W.1 is an independent witness, who happens to be a Magistrate and he had accompanied the raiding party. P.W.4 is the Investigating Officer, who led the trap. P.W.5 is a D.S.P. of Vigilance Department, who was present during the preparation of trap and when the case was conducted inside the D.A.O. 5. After taking into consideration the evidence led on behalf of the prosecution, the learned Special Judge, Vigilance held that admittedly the tainted money has been recovered from the accused, P.W.1, being the Magistrate has not seen as to how the money has been passed to the hands of the accused. P.W.2, accompanying witness is supposed to hear the conversations between the complainant and the accused and see the passing of money to the accused. P.W.2, accompanying witness is supposed to hear the conversations between the complainant and the accused and see the passing of money to the accused. He further held that the Magistrate has been selected to accompany the complainant to observe the facts of the case and to depose but he denies hearing any conversation and seeing the passing of the money. It is held by the learned Special Judge that the complainant has entered into the room of the accused and paid the tainted money and gave the signal to the raiding party. It is further held by the learned Special Judge that P.W.3 does not say that he thrust the money into the hands of the accused or into his pocket. He does not say when he gave the money to him. The learned Special Judge further noted that P.W.3 admits in cross-examination that he voluntarily gave the money to the accused for tiffin. He further held that the accused has accepted Rs. 200/- for processing application of the complainant, which is an official act and he shall not have received it. Hence, the learned Special Judge held that the complainant was not his friend and he had no relations with him for which he could offer Rs. 200/- to take tiffin. The acceptance of gratification by the accused can be presumed under Section 20 of the P.C.Act as a motive or reward. Therefore, the learned Special Judge being satisfied that the prosecution has proved its case beyond all reasonable doubt and the offence under Section 7 of the P.C.Act, 1947 has been made out, he found the accused was guilty and he was convicted and sentenced to undergo R.I. for six months and to pay a fine of Rs. 1000/-, in default, to undergo further R.I. for one month. 6. In course of hearing, learned counsel for the appellant submitted that the prosecution has failed to prove the very case it alleges and, therefore, the case of the prosecution should not have been believed by the learned Special Judge. It is further contended that there is no proof of demand and acceptance of bribe money by the accused and therefore, the appellant is entitled to be acquitted. Learned Standing Counsel for the Vigilance Department, on the other hand, supports the findings recorded by the learned Special Judge and argues that the conviction must be upheld by this appellate Court. It is further contended that there is no proof of demand and acceptance of bribe money by the accused and therefore, the appellant is entitled to be acquitted. Learned Standing Counsel for the Vigilance Department, on the other hand, supports the findings recorded by the learned Special Judge and argues that the conviction must be upheld by this appellate Court. 7. In order to see whether the prosecution has been proved its case beyond all reasonable doubt, this Court needs to examine the evidence of P.Ws. 2 and 3, the shadow and decoy witnesses. P.W.3, Nandlal Panigrahi, happens to be decoy in the case. He has stated in cross-examination that in 1998 a loan of Rs. 50,000/- has been sanctioned to him under P.M.R.Y. Scheme by the DIC, Sambalpur for opening Fertilizer Shop. He had applied for licence to the D.A.O., Sambalpur. The witness stated that he know the accused worked as clerk and was dealing with fertilizer licence. He presented his application before the accused. The witness further stated that the accused asked him to come after two to three days. Later, he went to the office and met another clerk, who told him that unless motley is paid to the accused, he would not process the file. So, the witness should go and report in Vigilance Office and lay a trap. The witness went to the said office and lodged an FIR, which is marked as Ext. 12. He further stated that he does not remember what happened in Vigilance Office. Then, he along with raiding party went to the office of the accused. Then, the, witness came out and gave signal to the raiding party by brushing his head by hand. The witness stood in the verandah and has stated that he does not know what happened inside when vigilance party rushed inside the room. This witness has been treated as hostile witness by the prosecution and has been cross-examined under Section 154 of the Indian Evidence Act. The FIR and the statement recorded under Section 161 of the Cr.P.C., 1973 have been confronted to him by the I.O.. It is brought out that actually he has stated that the accused has demanded Rs. 200/- from him and, on the date of trap the witness has also stated before the I.O. that the accused has demanded Rs. The FIR and the statement recorded under Section 161 of the Cr.P.C., 1973 have been confronted to him by the I.O.. It is brought out that actually he has stated that the accused has demanded Rs. 200/- from him and, on the date of trap the witness has also stated before the I.O. that the accused has demanded Rs. 200/- and on his demand he handed over tainted G.C. notes to the accused. In cross-examination, he has stated that the accused had never demanded money. He further stated that he voluntarily gave the money to him for tiffin. From the foresaid evidence, it is clear that the witness has not stated that before lodging of the FIR the accused demanded any sum from him. He has also not stated on the date of the trap when he entered into the office of the appellant, he demanded money from him. He has not stated that he has handed over the tainted money to the appellant. There is another discrepancy as far as the prosecution case is concerned. It is the consistent case of the prosecution that the accused-appellant demanded Rs. 200/- and the money handed over Rs. 200 to him on demand. Further, the decoy himself states that he has given Rs.150/- voluntarily to the appellant for tiffin. 8. On the top of it, it is seen that P.W.2 has also not supported the prosecution case in its entirety. P.W.2, Chitta Ranjan Naik was a Junior Clerk in the office of the CTO. He was called to the vigilance office and took part in the pre-trap exercise. Thereafter, he along with the raiding party proceeded to the District Agriculture Office. The members of the raiding party stayed back at the entrance gate of the office. The witness and the complainant went inside the office. He further stated in cross-examination that he positioned in the verandah of the room where the accused was sitting and complainant-Nandlal Panigrahi went inside the office room of the accused and talked something with him and again came back to the verandah. Thereafter, he again went to the spot room after some time signaled him regarding acceptance of bribe by the accused. On giving signal, he relayed the pre-arranged signal to the members of the raiding party, who was present in front of the gate of the office. Thereafter, he again went to the spot room after some time signaled him regarding acceptance of bribe by the accused. On giving signal, he relayed the pre-arranged signal to the members of the raiding party, who was present in front of the gate of the office. Getting his signal, the members of the raiding party have rushed to the spot room and caught hold of the accused. The DSP (Vigilance) challenged him stating that he has accepted bribe from the complainant. The accused refused to accept the bribe. On further insistence by the DSP (Vigilance), the accused brought out the tainted G.C. notes from his shirt pocket. Thereafter, hand-wash and shirt pocket wash of the accused were taken, which were turned pink. The detection report was prepared where this witness put his signature. At this stage, prosecution prayed that this witness be allowed to be cross-examined under Section 154 of the Indian Evidence Act. In cross-examination, he has not stated before the Vigilance Police that A.S.I., Mishra treated two numbers of G.C. notes with phenolphthalein powder and kept the tainted money on the left side chest pocket of wearing shirt of the complainant. He admitted that he went into the spot office with the complainant and positioned himself in the verandah of the spot room and that the complainant went inside and after some time both came to .the verandah and again went inside the office. He has denied the suggestion that on the verandah the accused asked him about Rs. 200/- and the complainant told that he has brought the same and thereafter the complainant brought and tainted money and handed over the same to the accused. He has further denied that the complainant told that his work should be done and the accused answered that it shall be done and the complainant should leave the office. He denied the suggestion that he is suppressing the truth on being influenced by the accused. In his cross-examination, the witness has stated that except colleagues Dadhibaban Padhi and ACTO Khageswar Naik, he came to know the other members of the raiding party and the complainant for the first time on 30.11.1998. After the incident, he has never met the complainant nor officers of the Vigilance Department. In his cross-examination, the witness has stated that except colleagues Dadhibaban Padhi and ACTO Khageswar Naik, he came to know the other members of the raiding party and the complainant for the first time on 30.11.1998. After the incident, he has never met the complainant nor officers of the Vigilance Department. He further stated that on his arrival in the office of the DSP (Vigilance), the persons present there were not asked to give their introduction or to identify themselves before the party. He could not say, who was the Addl. CTO attached to the Vigilance office. The witness further stated that the preparation was over at 11 A.M. By 3 P.M. the witness stated that the detection was over and thereafter he went back. 9. A bare reading of the evidence of this witness reveals that he has seen the complainant entering inside the office room of the appellant and talked with him and came back to the verandah. Thereafter, he went to the inside spot room and after some time signaled the witness regarding acceptance of bribe by the accused. On getting the signal, the witness relayed the pre-arranged signal to the members of the raiding party. It is clear that the witness has not seen the complainant handing over Rs. 200/- to the appellant. He has not heard about the demand made by the appellant to the complainant to receive cash Rs. 200/- as bribe for processing the file. So, the question remains whether the conviction recorded by the learned Special Judge can be upheld by this Court. 10. The learned counsel for the appellant relies upon the case of State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 . At paragraph-16, the Hon'ble Supreme Court has held that indisputedly, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on record in their entirety. For arriving at the conclusion as to whether all the ingredients of an offence viz. demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on record in their entirety. It is further held that, for the said purpose, indisputedly, the presumptive evidence, as laid down in Section 20 of the P.C.Act, 1988, must be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the prosecution would differ. The apex Court, further, held that the accused is called upon to explain as to how the amount was found in his possession and the foundational facts must be established by the prosecution. While invoking the provisions of Section 20 of the P.C.Act, 1988, the Court is required to consider the explanation offered by the accused only on the touch stone of preponderance of probability and not on the proof beyond all reasonable doubt. The same principles apply to a case under the old Prevention of Corruption Act. 11. In this connection, this Court takes note the ratio decided by the Supreme Court in the case of Narendra Champaklal Trivedi v. State of Gujarat, AIR 2012 SC 2268. At paragraph 12 of the said case, the Hon'ble Supreme Court has held that it is the settled principle of law that mere recovery of tainted money is not sufficient to record a conviction unless there is evidence that bribe has been demanded or money was paid voluntarily as bribe. The apex Court further held that the issue that remains to be addressed is whether there was demand of bribe and acceptance of the same. In the reported case, the recovery of part of money has gone totally unchallenged as in this case. 12. It is settled principle of law that, in order to succeed the prosecution, it must prove the demand, acceptance and recovery of the bribe from the possession of the accused. In this case, there is no denial of the fact that the tainted money was recovered from the possession of the appellant. Now, the question arises whether by drawing inference under Section 20 of the P.C.Act, 1947 conviction can be recorded. Section 20 of the Act reads as follows : "20. In this case, there is no denial of the fact that the tainted money was recovered from the possession of the appellant. Now, the question arises whether by drawing inference under Section 20 of the P.C.Act, 1947 conviction can be recorded. Section 20 of the Act reads as follows : "20. Presumption where public servant accepts gratification other than legal remuneration - (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of Sub-section (1) of Section 13 it accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. xxx" 13. In a case of M. Narsingha Rao v. State of Andhra Pradesh, AIR 2001 SC 318 , the Supreme Court has held that the only condition for drawing legal presumption under Section 20 of the Act is that during the trial, it shall be proved that the accused has accepted or agreed to accept any gratification. The Supreme Court further held that this section does not say the said condition should be satisfied through direct evidence. Its requirement is that it must be proved that the accused has accepted or agreed to accept the gratification. Applying the said principle to the present case, it is seen that the prosecution has singularly failed to prove the acceptance of cash as gratification from the complainant. There is also a discrepancy regarding the quantum of money that was allegedly paid to the appellant. The decoy has stated that he paid Rs. 150/- for tiffin, whereas the case of the prosecution is that the accused demanded and accepted Rs. 200/- which was recovered from his pocket. 14. Keeping in view the aforesaid consideration, this Court comes to the conclusion that the prosecution has not proved the very case it alleges beyond all reasonable doubt. The decoy has stated that he paid Rs. 150/- for tiffin, whereas the case of the prosecution is that the accused demanded and accepted Rs. 200/- which was recovered from his pocket. 14. Keeping in view the aforesaid consideration, this Court comes to the conclusion that the prosecution has not proved the very case it alleges beyond all reasonable doubt. Hence, the judgment of conviction and order of sentence dated 03.12.2003 passed in T.R.Case No. 39 of 1999 are hereby set aside. The accused is not found guilty and he is acquitted from the charge levelled against him. The bail bond be cancelled. The appeal is accordingly allowed. Appeal allowed.