Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 1111 (ORI)

Satyananda Pani v. State of Orissa (Vig. )

2017-10-09

S.K.SAHOO

body2017
JUDGMENT : S. K. SAHOO, J. 1. The appellant Satyananda Pani faced trial in the Court of learned Special Judge, Vigilance, Bhubaneswar in T.R. Case No. 45 of 1995 for offences punishable under section 7 and section 13(1)(d) punishable under section 13(2) of the Prevention of Corruption Act, 1988 (hereafter ‘1988 Act’) on the accusation that on 19.01.1994 at about 4.00 p.m., he being a public servant functioning as Excise Inspector, Striking Force, Berhampur, in his office situated at Gosaninuagaon, Berhampur by corrupt and illegal means and abusing otherwise his official position, obtained pecuniary advantage to the extent of Rs.300/- from the complainant (P.W.6) and directly accepted such amount from him as gratification other than legal remuneration as a motive for showing favour to P.W.6 for not filing an excise case against him. The learned Trial Court vide impugned judgment and order dated 24.06.2008 found the appellant guilty of the offences charged and sentenced him to undergo R.I. for six months and to pay a fine of Rs.1000/-, in default, to undergo R.I. for one month under section 7 of the 1988 Act and to undergo R.I. for one year and to pay a fine of Rs.2000/-, in default, to undergo R.I. for three months under section 13(1)(d) read with section 13(2) of the 1988 Act and both the sentences of imprisonment were directed to run concurrently. 2. The factual matrix of the prosecution case as per the written report presented by P.W.6 Prakash Chandra Sahoo before the Superintendent of Police, Vigilance, Berhampur on 19.01.1994 is that on 31.12.1993 the appellant who was the local Excise Inspector called him and his father to his office located at Gosaninuagaon and asked them to sign on a paper on the ground of seizure of liquor from a field situated nearer to their homestead land. When P.W.6 expressed his unwillingness for such action of the appellant as he was not present in the village, the appellant assured P.W.6 and his father that nothing would happen to them as the liquor was seized from the field. Accordingly, P.W.6 and his father put their signatures on the paper produced by the appellant. When P.W.6 expressed his unwillingness for such action of the appellant as he was not present in the village, the appellant assured P.W.6 and his father that nothing would happen to them as the liquor was seized from the field. Accordingly, P.W.6 and his father put their signatures on the paper produced by the appellant. It is further stated in the F.I.R. that when they put their signatures, the appellant threatened them to initiate a case against them as the liquor was seized from the back side of their homestead land and to send them to Court after arrest. The appellant further told them that if they would pay Rs.300/-, no case would be initiated against them. Thereafter, P.W.6 and his father returned to their village. Within three to four days, two peons of Excise Office came to the house of P.W.6 and told him to come to the Excise Office as the appellant had called him but P.W.6 did not go to the Excise Office. On 18.01.1994 at about 7.00 p.m. the appellant with his staff searched the residential premises of P.W.6 but did not get any contraband articles. At that time, P.W.6 was not present in his house. The appellant threatened the father of P.W.6 to search his house again and to send them to Court in custody as earlier demand of Rs.300/- was not fulfilled. When P.W.6 came to know about the development from his father, finding no other way, he collected Rs.300/-to give the same as bribe to the appellant against his desire. On the basis of such first information report, Berhampur Vigilance P.S. Case No. 05 of 1994 was registered on 19.01.1994 under sections 13(2) read with 13(1)(d) and section 7 of the 1988 Act. 3. P.W.11 J. Rama Chandra Rao, Inspector of Vigilance, Reserve Squad, Berhampur was directed by the Superintendent of Police, Vigilance, Berhampur to detect the case by laying a trap and to investigate the case. On the requisition of P.W.11, the official witnesses along with Vigilance Officers assembled in the Vigilance Office, Berhampur on 19.01.1994 at about 2.30 p.m. P.W.6 appeared before them as per previous instruction and he narrated before the officials regarding demand of bribe by the appellant as monthly contribution as he was regularly selling liquor without licence. P.W.6 further told that the appellant had threatened him to arrest if the amount was not paid regularly. P.W.6 further told that the appellant had threatened him to arrest if the amount was not paid regularly. P.W.6 produced three numbers of 100 rupees G.C. notes. Official witnesses Md. Arif (P.W.8) and Kedar Ch. Behera (P.W.3) put their initials with dates on those currency notes and noted down the numbers in two separate sheet papers. Demonstration was made to show the use and effect of phenolphthalein powder in the solution of sodium carbonate. The currency notes were smeared with phenolphthalein powder and after handling sample was preserved. The tainted notes were given to P.W.6 with instruction to make payment to the appellant only on demand. Debendra Kumar Satpathy (P.W.4), Junior Clerk was asked to accompany P.W.6 with instruction to overhear conversation between the appellant and P.W.6 and to give signals after transaction. A preparation report (Ext.6) was prepared. After preparation of the trap, the trap party members along with P.W.6, P.W.4 and other official witnesses proceeded to the spot at about 3.30 p.m. After reaching nearer to the spot, P.W.6 and P.W.4 walked towards the office of the appellant and other members of the trap party took their position at the nearby places waiting for the signal from P.W.4. It is the further prosecution case that at the relevant point of time, the office -cum-residence of the appellant was closed from inside. P.W.6 knocked at the door and the appellant opened the same. The appellant asked P.W.6 as to why he had come there to which P.W.6 replied that he had brought money. When the appellant asked P.W.6 to give money, P.W.6 gave the tainted currency notes of Rs.300/- to the appellant which was received by the appellant and he kept the same in his left side chest shirt pocket. At about 4.05 p.m. on getting signal, P.W.11 rushed to the office of the appellant and found the appellant sitting on his chair and one Kanhei Sahoo was present in the office. When the appellant saw the vigilance staff, he kept the money on the table and directed Kanhei Sahoo to conceal the money and accordingly, Kanhei Sahoo took the money from the table and kept it inside his shirt pocket and again Kanhei Sahoo kept the money on the table when he saw the vigilance staff. When the appellant saw the vigilance staff, he kept the money on the table and directed Kanhei Sahoo to conceal the money and accordingly, Kanhei Sahoo took the money from the table and kept it inside his shirt pocket and again Kanhei Sahoo kept the money on the table when he saw the vigilance staff. P.W.11 disclosed the identities of the trap party members and challenged the appellant to have received bribe from P.W.6 to which the appellant denied. The tainted G.C. notes were found on the table of the appellant. The hand wash of the appellant was taken separately and tested in the solution and there was slight change of colour to pink/rose. Samples were preserved for chemical examination. When the matter was confronted to P.W.6 and P.W.4, they stated that the appellant received the currency notes in his hand and kept the same on his table, then in his shirt pocket and thereafter threw it but Kanhei Sahu collected the money at the instance of the appellant and kept in his pocket but seeing the approach of the Vigilance staff, Kanhei Sahu kept the notes on the table. P.W.11 took the pocket wash of the appellant, hand wash and pocket wash of Kanhei Sahu were also taken and tested resulting change of colour to pink/rose. Samples were preserved for chemical test. The numbers of the currency notes were verified with the earlier noting, which tallied. P.W.11 seized the tainted G.C. notes, shirt of the appellant, his identity card, terrycot full check shirt of Kanhei Sahu and paper chit. P.W.11 prepared the detection report (Ext.7) and a copy of the detection report was given to the appellant. Tainted money was seized under seizure list Ext.8. P.W.11 seized the original P.R. 21/93-94 from the office of Superintendent of Excise, Chatrapur which revealed that P.W.6 was named as an accused in that P.R. and the appellant had sent the P.R. to the office of the Superintendent of Excise, Chatrapur on 22.01.1994 vide letter no.45. P.W.11 also seized Court Dak book on 30.04.1994. P.W.11 also seized the tour diary of the appellant for the period from 31.12.1993 to 22.01.1994 and he sent the exhibits for chemical examination to R.F.S.L., Berhampur and obtained the chemical examination report (Ext.13). P.W.11 placed all the documents before the Sanctioning Authority and had discussion with him and obtained sanction order (Ext.19). P.W.11 also seized the tour diary of the appellant for the period from 31.12.1993 to 22.01.1994 and he sent the exhibits for chemical examination to R.F.S.L., Berhampur and obtained the chemical examination report (Ext.13). P.W.11 placed all the documents before the Sanctioning Authority and had discussion with him and obtained sanction order (Ext.19). On completion of investigation, P.W.11 submitted charge sheet on 31.01.1995 against the appellant under sections 7, 13(1)(d) read with 13(2) of the 1988 Act. 4. The defence plea of the appellant who examined himself as D.W.1 was that on 31.12.1993 he was the Excise Inspector, Striking Force, Berhampur and on that day at about 5.00 p.m. while he was patrolling at Khajuria Road near the house of P.W.6, on receipt of the information, he detained P.W.6 and searched his person in presence of the witnesses and recovered five liters of I.D. liquor from his possession and accordingly, he arrested P.W.6 at the spot and released him on bail and on 01.01.1994 he sent the preliminary report (Ext.2) to the Superintendent of Excise, Chatrapur wherein he had mentioned that it was a fit case for submission of charge sheet and on 18.01.1994 he sent the final prosecution report to the Court of learned S.D.J.M., Berhampur. It is the further defence plea that on 19.01.1994 at about 3.30 to 4.00 p.m. while the appellant was in the office of the Inspector of Excise, Gosaninuagaon, Berhampur, P.W.6 and Jogendra Satpathy came there. When the appellant enquired about their coming, P.W.6 told him to drop the criminal proceeding initiated against him. The appellant intimated P.W.6 about submission of prosecution report against him. P.W.6 all on a sudden wanted to insert some currency notes in the shirt pocket of the appellant but the appellant gave some slaps to P.W.6 and also fist blow on his wrist for which the currency notes fell down on the ground. One Kanhei Sahu, a relation of P.W.6 was present there at that time and P.W.6 asked Kanhei to collect the currency notes and to keep it in his pocket. At that time, the Vigilance staff rushed to the room of the appellant and challenged him to have received money from P.W.6 but the appellant denied about such charge and told that P.W.6 was forcibly putting some currency notes in his pocket. At that time, the Vigilance staff rushed to the room of the appellant and challenged him to have received money from P.W.6 but the appellant denied about such charge and told that P.W.6 was forcibly putting some currency notes in his pocket. When Vigilance staff asked P.W.6 about the currency notes, he told about the presence of the currency notes in the pocket of Kanhei. The currency notes were brought from the pocket of Kanhei and placed on the table. It is the further defence plea that since the appellant had filed one excise case against P.W.6, false allegation regarding demand and acceptance of bribe was leveled against him by P.W.6. 5. In order to prove its case, the prosecution examined eleven witnesses. P.W.1 P. Chiti Babu was the Head Clerk in the office of Superintendent of Excise, Chatrapur who is a witness to the seizure. P.W.2 Narahari Mahakudu did not support the prosecution case for which he was declared hostile by the prosecution. P.W.3 Kedar Chandra Behera and P.W.4 Debendra Kumar Satpathy were the Junior Clerks in the Settlement Office, Berhampur who were the members of trap party. Both of them were declared hostile by the prosecution for not supporting the prosecution case fully. P.W.5 Prasanta Kumar Acharya was the Senior Scientific officer, Regional F.S.L., Bhubaneswar who proved the chemical analysis report. P.W.6 Prakash Chandra Sahoo was the informant in the case. P.W.7 Basudev Patra did not support the prosecution case for which he was declared hostile by the prosecution. P.W.8 Md. Arif was the Asst. Settlement Officer, Berhampur and he was a member of the trap party. P.W.9 Rabindranath Mohanty was the Commissioner of Excise and Inspector General of Registration, Cuttack who accorded sanction for the prosecution of the appellant. He proved the sanction order Ext.19. P.W.10 A.V. Rama Rao was the A.S.I. of Excise, Striking Force, Berhampur who is a witness to the seizure. P.W.11 J. Rama Chandra Rao is the investigating officer. The prosecution exhibited twenty two documents. He proved the sanction order Ext.19. P.W.10 A.V. Rama Rao was the A.S.I. of Excise, Striking Force, Berhampur who is a witness to the seizure. P.W.11 J. Rama Chandra Rao is the investigating officer. The prosecution exhibited twenty two documents. Exts.1, 8, 9, 10, 11, 12 and 20 are the seizure lists, Ext.2 is the preliminary report of the appellant, Ext.3 is the carbon copy of the P.R., Ext.4 is the tour diary, Ext.5 is the chit of paper, Ext.6 is the preparation report, Ext.7 is the detection report, Ext.13 is the chemical examination report, Ext.14 is the F.I.R, Exts.15, 16 and 17 are the signatures of P.W.8 on the tainted notes, Ext.18 is a sheet of paper containing numbers of G.C. notes, Ext.19 is the sanction order and Ext.22 is the prosecution report. The prosecution proved ten material objects. M.O.I is the packet containing G.C. notes, M.O.II and M.O.III are the shirts and M.O.IV to M.O.X are the glass bottles. The appellant examined himself as D.W.1 and exhibited two documents. Ext.A is the entry no.17 in the dispatch register and Ext.B is the endorsement in the Dak book. 6. The learned Trial Court after assessing the evidence on record came to hold that the appellant has not disputed the search of the house of P.W.6 and seizure of liquor from his house premises. The appellant has also not disputed the recovery of tainted G.C. notes from his office. It is further held that the informant has corroborated the allegation made in the F.I.R. and the evidence of P.W.8 and P.W.11 give credence to the statement of P.W.6 that the appellant had demanded bribe from him. It is further held that P.W.4 stated about the disclosure made by P.W.6 relating to demand of Rs.300/-by the appellant and thus there is sufficient evidence on record to hold that the appellant had demanded bribe from the informant towards monthly mamulu and not to file any case against him. It is further held that the chemical examination report (Ext.13) clearly established that the appellant after handling the tainted G.C. notes had kept it inside his pocket and the prosecution case that the appellant thereafter handed over the tainted G.C. notes to Kahnei Sahu finds corroboration from the C.E. report as pocket wash of Kahnei Sahu had contained phenolphthalein. It is further held that the chemical examination report (Ext.13) clearly established that the appellant after handling the tainted G.C. notes had kept it inside his pocket and the prosecution case that the appellant thereafter handed over the tainted G.C. notes to Kahnei Sahu finds corroboration from the C.E. report as pocket wash of Kahnei Sahu had contained phenolphthalein. It is further held that besides the oral evidence of the witnesses, the scientific test establishes the facts beyond reasonable doubt that the appellant after handling the tainted G.C. notes had kept it in his pocket and thereafter handed it over to Kanhei Sahu who had kept it in his pocket and seeing the approach of the vigilance staff, Kanhei Sahu kept it on the table of the appellant. It is further held that in view of the oral evidence of the witnesses coupled with scientific test report, the irresistible conclusion was that the appellant had voluntarily and consciously accepted the bribe of Rs.300/- from the informant. It is further held that the appellant has failed to discharge the onus and the prosecution has successfully established the fact that the appellant received the amount of Rs.300/-towards illegal gratification. 7. Mr. Smruti Ranjan Mohapatra, learned counsel appearing for the appellant contended that no work of the informant (P.W.6) was pending with the appellant and as such there was no occasion for the appellant to demand bribe money from the informant. It is further contended that the charge against the appellant that he demanded Rs.300/- from the informant for not filing an excise case against him has not been proved by the prosecution inasmuch as on the date of occurrence, prosecution report had already been submitted against P.W.6 in the excise case by the appellant. It is further contended that the tainted money was not recovered from the possession of the appellant but it was lying on the table when the Vigilance party arrived at the spot and therefore, the acceptance part is also falsified. It is further contended that the story narrated by the informant as well as the overhearing witness relating to acceptance of the tainted money by the appellant is discrepant in nature and therefore, the prosecution case is doubtful. It is further contended that the overhearing witness has not given any signal as per previous instruction to him, which shows that it was an unsuccessful trap. It is further contended that the overhearing witness has not given any signal as per previous instruction to him, which shows that it was an unsuccessful trap. It is further contended that the evidence on record indicates the presence of one Kanhei Sahu at the time of occurrence but he has not been examined by the prosecution during trial for which adverse inference should be drawn against the prosecution. It is further contended that defence plea has been established by preponderance of probabilities and the learned Trial Court has rejected the defence plea in a mechanical manner without proper analysis of evidence and therefore, benefit of doubt should be extended in favour of the appellant. The learned counsel for the appellant placed reliance in the cases of Niranjan Bharati -Vrs.-State of Orissa reported in (2003) 26 Orissa Criminal Reports 274, Babu Lal Bajpai -Vrs.-State of U.P. reported in 1994 Criminal Law Journal 1383, Suraj Mal -Vrs.-The State (Delhi Administration) reported in A.I.R. 1979 S.C. 1408, Khaleel Ahmed -Vrs.-State of Karnataka reported in (2016) 63 Orissa Criminal Reports (SC) 150, State of Orissa -Vrs.-Dr. Biswanath Hota reported in (2011) 50 Orissa Criminal Reports 189, Subash Parbat Sovane -Vrs.-State of Gujrat reported in A.I.R. 2003 S.C. 2169, C.M. Girish Babu -Vrs.-CBI, Cochin reported in (2009) 43 Orissa Criminal Reports (SC) 48, Raj Kishore -Vrs.-State reported in 2014(1) Acquittal 216 (Del.), Manoranjan Mohanty -Vrs.-State of Orissa reported in (2014) 58 Orissa Criminal Reports 703, Panalal Damodar Rathi -Vrs.-State of Maharastra reported in 1980 Supreme Court Cases (Crl.) 121, Antaryami Bihari -Vrs.-State of Orissa (Vigilance) reported in 2013 (II) Orissa Law Reviews 308, State of Maharashtra -Vrs.-Dnyaneshwar Laxman Rao Wankhede reported in (2009) 44 Orissa Criminal Reports (SC) 425, Gurucharan Singh -Vrs.-State of Haryana reported in 1994 Criminal Law Journal 1710, State of Karnatak -Vrs.-Ameer Jan reported in 2007 (4) Crimes 22 (SC), Ajay Singh -Vrs.-State of Maharastra reported in (2007) 37 Orissa Criminal Reports (SC) 872 and Yudhishtir -Vrs.-State of Madhya Pradesh reported in 1971 Supreme Court Cases (Crl.) 684. Mr. Sanjay Kumar Das, learned Standing Counsel appearing for the Vigilance Department on the other hand contended that demand of illegal gratification of Rs.300/-from the informant (P.W.6) by the appellant has been proved through the evidence of P.W.6, P.W.8 and P.W.11 which is also partly supported by P.W.3 and P.W.4. Mr. Sanjay Kumar Das, learned Standing Counsel appearing for the Vigilance Department on the other hand contended that demand of illegal gratification of Rs.300/-from the informant (P.W.6) by the appellant has been proved through the evidence of P.W.6, P.W.8 and P.W.11 which is also partly supported by P.W.3 and P.W.4. It is further contended that the informant was not aware about the submission of final prosecution report against him before the Court and therefore, he being an illiterate person believed the appellant in good faith that no prosecution would be instituted against him if fulfills the demand of the appellant. It is further contended that Kanhei Sahu could not be examined in the Trial Court as he was dead when the summons were issued to him. It is further contended that the hand wash, shirt pocket wash and identity card wash which belonged to the appellant which were collected in the bottles were found to have contained phenolphthalein on chemical analysis as per the report (Ext.13) which was proved by P.W.5, a Senior Scientific Officer. It is further contended that even though the prosecution witnesses like P.W.3 and P.W.4 have been declared hostile for not supporting the prosecution case in its entirety but the testimony of such witnesses cannot be washed off completely and the part of the evidence in which they have supported the prosecution case and which is found to be credit-worthy can be acted upon. It is further contended that there is no infirmity or illegality in the impugned judgment of the learned Trial Court and therefore, the appeal should be dismissed. The learned counsel for the Vigilance Department relied upon the decisions of the Hon’ble Supreme Court in the cases of State of Bihar -Vrs.-Basawan Singh reported in A.I.R. 1958 S.C. 500, Dalpat Singh -Vrs.-State of Rajasthan reported in A.I.R. 1969 S.C. 17, Hazarilal -Vrs.-the State of Delhi Administration reported in A.I.R. 1980 S.C. 873, Kishan Chand Mangal -Vrs.-State of Rajasthan reported in A.I.R. 1982 S.C. 1511, State of U.P. -Vrs.-Dr. G.K. Ghosh reported in A.I.R. 1984 S.C. 1453, T. Shankar Prasad -Vrs.-State of A.P. reported in (2004) 27 Orissa Criminal Reports (SC) 599, Varada Rama Mohana Rao -Vrs.-State of Andhra Pradesh reported in A.I.R. 2004 S.C. 3221, State of West Bengal -Vrs.-Kailash Chandra Pandey reported in A.I.R. 2005 S.C. 119, Raj Rajendra Singh Seth -Vrs.-The State of Jharkhand reported in (2008) 41 Orissa Criminal Reports (SC) 159 and State of A.P. -Vrs.-P. Satyanarayan Murthy reported in (2008) 41 Orissa Criminal Reports (SC) 790. 8. The principle of law that emerges from the views expressed by different Courts including the Hon’ble Supreme Court in the above decisions placed by both the parties is that mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. In order to constitute an offence under section 7 of 1988 Act, proof of demand is a sine qua non. The burden rests on the accused to displace the statutory presumption raised under section 20 of the 1988 Act by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in section 7 of the 1988 Act. 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. While invoking the provisions of section 20 of 1988 Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt inasmuch as 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. For arriving at the conclusion as to whether all the ingredients of the offence i.e. demand, acceptance and recovery of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. The standard of burden of proof on the accused vis-à-vis the standard of burden of proof on the prosecution would differ. The standard of burden of proof on the accused vis-à-vis the standard of burden of proof on the prosecution would differ. The initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then burden of proving the defence shifts upon the accused and a presumption would arise under section 20 of the 1988 Act. The proof of demand of illegal gratification is the gravamen of the offence under sections 7 and 13(1)(d)(i) and (ii) of 1988 Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under sections 7 or 13 of the Act would not entail his conviction there under. The evidence of the complainant should be corroborated in material particulars and the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon. Even if the trap witnesses turn hostile or are found not to be independent, if the evidence of the complainant and the other circumstantial evidence on record is found to be consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty for the Court in upholding the prosecution case. The Trial Court which has the occasion to see the demeanour of the witnesses is no doubt in a better position to appreciate it and the Appellate Court should not lightly brush aside the appreciation done by the Trial Court except for cogent reasons. 9. Let me first deal with the first contention raised by the learned counsel for the appellant that there was no occasion for the appellant to demand bribe money from P.W.6 as no work of P.W.6 was pending with the appellant as on the date of trap. 9. Let me first deal with the first contention raised by the learned counsel for the appellant that there was no occasion for the appellant to demand bribe money from P.W.6 as no work of P.W.6 was pending with the appellant as on the date of trap. The charge was framed against the appellant on the accusation of demand of Rs.300/- made by him to P.W.6 for not filing the excise case against P.W.6. The documentary evidence i.e. P.R. No. 21/93-94 which was seized by the Investigating Officer (P.W.11) goes to show that it was submitted against P.W.6 on 18.01.1994 in the Court of learned S.D.J.M., Berhampur which was prior to the date of occurrence and the prosecution report relates to seizure of I.D. liquor from the possession of P.W.6 by the appellant on 31.12.1993. The informant has stated about filing of the case against him by the appellant after obtaining signatures on the documents. P.W.3 and P.W.4 have also stated about the submission of the prosecution report against P.W.6 on 18.01.1994. The tour diary (Ext.4) which was submitted by the appellant to the Excise Superintendent indicates regarding detection of the case. As per the evidence of P.W.1, the appellant intimated to the Superintendent of Excise on 01.01.1994 that it was a fit case for submission of charge sheet and the same was verified by the Superintendent. Therefore, it is clear that immediately after the detection of the excise case against the informant, the appellant had intimated the same to his superior officer indicating his opinion which shows the bonafideness on the part of the appellant. Had there been any intention of demanding bribe money by the appellant from P.W.6 for not filing the excise case, he would not have reported the matter to his superior officer. After reporting the detection of the case and giving his opinion to the superior officer that it was a fit case for submission of prosecution report and that the prosecution report would be submitted soon, it is difficult to accept that the appellant would demand bribe money from P.W.6 not to file the excise case. After reporting the detection of the case and giving his opinion to the superior officer that it was a fit case for submission of prosecution report and that the prosecution report would be submitted soon, it is difficult to accept that the appellant would demand bribe money from P.W.6 not to file the excise case. Since prosecution report had already been submitted in the Court prior to the date of trap which was also intimated by the appellant to P.W.6 on the date of trap when P.W.6 approached the appellant in his office-cum-residence as stated by the overhearing witness (P.W.4), there is sufficient force in the contention of the learned counsel for the appellant that there was no occasion as on the date of trap for the appellant to raise a demand of bribe money as prosecution report had already been submitted by then. The contention of the learned counsel for the Vigilance Department that P.W.6 was not aware about the submission of the prosecution report against him and therefore, he believed the appellant in good faith is too difficult to be accepted inasmuch as P.W.6 has stated that after obtaining their signatures on the documents, the appellant filed a case against them. The bonafideness in the conduct of the appellant right from the date of detection of the excise case against P.W.6 in reporting to the superior officer, giving his opinion against P.W.6 in his preliminary report and submission of final prosecution report prior to the date of trap, goes against the prosecution case that there was any occasion for the appellant as on the date of trap to demand bribe money from P.W.6. 10. Coming to the next contention raised by the learned counsel for the appellant that the charge against the appellant that he demanded Rs.300/- from the informant for not filing an excise case against him has not been proved by the prosecution, as already discussed not only the bonafideness in the conduct of the appellant right from the beginning of detection of the excise case against P.W.6 creates doubt about such demand but also the materials on record are highly discrepant in that respect. The overhearing witness (P.W.4) has stated that the appellant while unlocking the door of the room used as office replied to P.W.6 that he had already submitted charge sheet against P.W.6 on 18.01.1994 in the case which was started on 31.12.1993 and there was no need for P.W.6 coming to meet him. He has further stated that P.W.6 told the appellant that he had come to give Rs.300/-to him and tried to push the currency notes into the pocket of the appellant but the appellant resisted and gave a blow while warding off the pushing of money into his pocket for which the currency notes were strewn on the floor. P.W.4 has specifically stated in his cross-examination that he has not heard or seen the appellant demanding Rs.300/- from P.W.6. Even though P.W.6 has stated that the appellant demanded Rs.300/- per month and threatened to book him and his father in excise cases if they failed to give the money but in the first information report, such aspect has not been reflected rather it is mentioned that after obtaining the signatures of P.W.6 and his father in papers, the appellant told them to give Rs.300/- not to file the case against them. P.W.6 has stated that he did not remember specifically the date and the name of the day on which the appellant demanded Rs.300/- from him as monthly payment. P.W.6 has further stated that he did not complain against the appellant before any authority after he demanded money from them before he went to the vigilance office. The father of P.W.6 who is supposed to be aware about such demand has not been examined by the prosecution to corroborate the evidence of P.W.6. In view of the discrepancies in the evidence of P.W.6 relating to demand of bribe money, the contradictory evidence of P.W.4, non-examination of the father of P.W.6 to prove such demand aspects as well as the other surrounding circumstances like submission of final prosecution report prior to the date of trap creates doubt that the appellant demanded Rs.300/- from the informant for not filing an excise case against him. 11. It is not disputed that the tainted money was not recovered from the appellant but it was lying on the table when the vigilance party led by P.W.11 arrived at the spot. 11. It is not disputed that the tainted money was not recovered from the appellant but it was lying on the table when the vigilance party led by P.W.11 arrived at the spot. P.W.3 has stated that when they entered inside the excise office, he found the appellant was standing inside the office and one person had held some currency notes of one hundred rupees denomination in his right hand and the moment he saw them, he put those notes on the table of the Excise Inspector and that person gave his name as Kanhei Sahu when asked by vigilance officers. P.W.4 has stated that P.W.6 told the appellant that he had come to give him Rs.300/- and tried to push the currency notes into the pocket of the appellant but the appellant resisted and gave a blow while warding off the pushing of the money into his pocket and the currency notes were strewn on the floor and at that time another man collected the currency notes from the ground and put them in his shirt pocket and that man was Kanhei Sahu who though initially denied to have collected the money from the floor and kept it in his pocket but subsequently on being challenged, he brought the currency notes from the pocket and kept them on the table in the office of the appellant as was directed by the vigilance staff. The defence plea of the appellant who was examined as D.W.1 gets corroboration from the evidence of P.W.3 and P.W.4. Though P.W.6 has stated that the appellant accepted the money in his hands, kept it in his shirt pocket and seeing the vigilance staff coming towards the office, he kept the notes on the table and asked Kanhei Sahu to conceal the notes but it has been confronted to P.W.6 and proved through the Investigating Officer (P.W.11) that he has not stated about the same in his statement recorded under section 161 of Cr.P.C. Therefore, P.W.6 for the first time has stated about the acceptance of tainted currency notes by the appellant and the instruction given by the appellant to Kanhei Sahu. The role of Kanhei Sahu at the spot is highly suspicious and he was not arrayed as an accused rather shown as a witness for the prosecution but could not be examined on account of his death. The role of Kanhei Sahu at the spot is highly suspicious and he was not arrayed as an accused rather shown as a witness for the prosecution but could not be examined on account of his death. The manner in which the tainted money was found on the table as per the evidence of the witnesses falsifies the prosecution case that the appellant accepted such money from P.W.6 towards bribe. 12. It appears that the overhearing witness (P.W.4) had not given any signal to the trap party members as was earlier instructed to him to give such signal soon after the transaction of payment of tainted bribe amount is over. P.W.4 has stated that while he was coming out to give signal, the Vigilance staff entered. P.W.3 has stated that though they were told by the Inspector Rama Rao (P.W.11) that after they saw P.W.4 rubbing his head with his right hand, they should proceed to the Excise Office but they did not receive any signal though they waited for about half an hour. P.W.6 has also not stated about any signal being given by P.W.4 to the Vigilance Police. P.W.8 has stated in a different manner that within half an hour, a Vigilance Constable came running towards the vehicle and reported that bribe giving and taking transaction was over. In view of the aforesaid evidence, the statement made by the Investigating Officer (P.W.11) that at about 4.05 p.m. on getting signal, they rushed to the office of the appellant cannot be accepted. Since as per the detection report (Ext.6), P.W.4 was supposed to relay the signal by combing his head by means of his left hand frequently coming to the verandah outside soon after the transaction of payment of tainted bribe amount was over and as per the evidence of P.W.4, no such signal was given by him, it disproves the prosecution case of transaction of payment of tainted bribe amount to the appellant. 13. 13. Even though the report of chemical analyst marked as Ext.13 indicates about the presence of phenolphthalein in the hand washes of both the hands of the appellant, his pocket wash and his identity card wash which was there in his shirt pocket collected in the bottles but in view of the defence plea which gets corroboration from the evidence of the prosecution witness (P.W.4) that there was an attempt made by P.W.6 to thrust the currency notes into the pocket of the appellant and resistance was offered by the appellant to such attempt, the possibility of currency notes smeared with phenolphthalein coming in contact with the shirt pocket, identity card and hands of the appellant cannot be ruled out and therefore, findings of the chemical analyst cannot be a clinching circumstance against the appellant in the facts and circumstances of the case. 14. The defence has taken a specific plea. Not only the appellant who is competent witness in view of section 315 of Cr.P.C. has examined himself as D.W.1 in support of his plea but some of the documentary evidence adduced in the case and the ocular evidence of some of the prosecution witnesses probablises the defence plea and creates doubt about the truthfulness of the prosecution version. The learned Trial Court has not properly assessed the defence plea in its proper perspective and seems to have ignored the lacunas in the prosecution case. The finding of the learned Trial Court in the concluding paragraph that the appellant had demanded Rs.300/- not to raid the house of P.W.6 frequently and for non-submission of P.R. in excise cases against him is contrary to the charge framed against the appellant. 15. In view of the above discussions, it is apparent that the prosecution case suffers from serious infirmities. In the absence of any acceptable evidence regarding the occasion for the appellant to demand the bribe money, absence of clinching materials relating to the demand and acceptance of the bribe money by the appellant, absence of recovery of tainted currency notes from the possession of the appellant and the fact that the defence plea has been established by preponderance of probabilities, I am of the view that though there is some suspicion against the appellant but suspicion howsoever strong cannot take the place of proof. In the circumstances, since the guilt of the appellant has not been established beyond reasonable doubt and the impugned judgment suffers from perversity, I am constrained to give benefit of doubt to the appellant. In the result, the appeal is allowed. The impugned judgment and order of conviction and the sentence passed there under is set aside and the appellant is acquitted of all the charges. The appellant is on bail by virtue of the order of this Court. He is discharged from liability of his bail bond. The personal bond and the surety bond stand cancelled.