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2018 DIGILAW 187 (ORI)

Kishore Kumar Swain v. State of Orissa (Vig. )

2018-02-15

S.K.SAHOO

body2018
JUDGMENT : S.K. SAHOO, J. The appellant Kishore Kumar Swain faced trial in the Court of learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No. 99 of 1999 for offences punishable under section 7 and section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereafter ‘1988 Act’) on the accusation that while working as Junior Engineer, Khandapara Block, being a public servant, by abusing his position as such public servant, he demanded and by corrupt or illegal means obtained for his pecuniary advantage to the extent of Rs.600/- (rupees six hundred only) from the informant Pramod Kumar Bagsingh (P.W.4) in his residential Government quarter in the Block colony towards preparation of the running bill for developmental work of Mahulapada village tank. The learned trial Court found the appellant guilty of the offences charged and sentenced him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- (rupees one thousand only), in default, to undergo rigorous imprisonment for three months more under section 7 of the 1988 Act and further to undergo rigorous imprisonment for two years and to pay a fine of Rs.5000/- (rupees five thousand only), in default, to undergo rigorous imprisonment for six months more for the offence under section 13(2) read with section 13 (1)(d) of the 1988 Act and both the sentences were directed to run concurrently. 2. On 18.03.1997 P.W.4 lodged the first information report before the Superintendent of Police, Vigilance, Bhubaneswar Division, Bhubaneswar stating therein that a sum of Rs.1,00,000/- (rupees one lakh only) was sanctioned for the renovation work of Jogibandha tank located in mouza Mahulapada by the Block Development Officer, Khandapara and the village committee recommended the name of the informant to the B.D.O., Khandapara for execution of the work and accordingly, work order was issued in favour of the informant on 17.10.1996. The informant started the work and completed the same where after the appellant took measurement of the executed work. The informant received an advance to the tune of Rs.60,000/- (rupees sixty thousand only) for the said work in the month of November 1996 in two phases and accordingly, he signed the vouchers though actually he had received Rs.50,000/- (rupees fifty thousand only). The informant received an advance to the tune of Rs.60,000/- (rupees sixty thousand only) for the said work in the month of November 1996 in two phases and accordingly, he signed the vouchers though actually he had received Rs.50,000/- (rupees fifty thousand only). In the month of December 1996, the first running bill of Rs.70,000/- (rupees seventy thousand only) was prepared and out of the balance of Rs.10,000/- (rupees ten thousand only), the informant was paid Rs.6,400/- (rupees six thousand four hundred only) and therefore, out of prepared bill of Rs.70,000/- (rupees seventy thousand only), the informant actually received Rs.56,400/- (rupees fifty six thousand four hundred only) and an amount of Rs.14,600/- (rupees fourteen thousand six hundred only) was deducted from the first running bill by cashier Behera babu on the instruction of the appellant. It is the further prosecution case as the first information report that the informant approached the appellant for payment of the balance dues of the executed work but he was told by the appellant to pay bribe of Rs.2000/- (rupees two thousand only) otherwise the second running bill would not be prepared. The informant expressed his incapacity to meet such demand and accordingly requested the appellant for which the appellant agreed to prepare the second running bill after receiving bribe money of Rs.600/- (rupees six hundred only) and the appellant told the informant to pay the amount on 19.03.1997. It is further stated in the first information report that in spite of his unwillingness, the informant was going to pay Rs.600/- (rupees six hundred only) to the appellant towards bribe money and demanded that legal action should be taken against the appellant. On receipt of such first information report, the Superintendent of Police, Vigilance, Bhubaneswar Division, Bhubaneswar directed the officer in charge of Vigilance police station, Bhubaneswar to register the case and accordingly, Bhubaneswar Vigilance P.S. Case No.2 of 1997 was registered on 18.03.1997 under section 7 and section 13(2) read with section 13(1)(d) of the 1988 Act. 3. Mr. U. Rama Rao (P.W.5) who was working as Inspector of Police, Vigilance, Khurda took up investigation of the case as per the order of the Superintendent of police, Vigilance, Bhubaneswar Division, Bhubaneswar. A requisition was made by the D.S.P., Vigilance for the attendance of the official witnesses and they appeared before P.W.5 on 19.03.1997 at 10.00 a.m. in the office of D.S.P., Vigilance, Bhubaneswar. A requisition was made by the D.S.P., Vigilance for the attendance of the official witnesses and they appeared before P.W.5 on 19.03.1997 at 10.00 a.m. in the office of D.S.P., Vigilance, Bhubaneswar. The informant (P.W.4) was introduced to the trap party members and he narrated the contents of the F.I.R. and produced six numbers of 100 rupees G.C. notes which he had brought for making payment to the appellant towards bribe. Demonstration was made to show the use and effect of the phenolphthalein powder in the solution of sodium carbonate. Notes were treated with the powder and after test, sample was preserved. Numbers of notes were noted down. The tainted notes were kept in a fourfold paper with instruction to the informant (P.W.4) to hand over the same to the appellant only on demand. P.W.3 Ashok Kumar Rath was asked to accompany the informant with instruction to overhear conversation between the appellant and the informant and to give signal after the transaction. A preparation report (Ext.1) was made in presence of witnesses. A copy of the preparation report was given to P.W.1 Sudarsan Mishra, with instruction to compare the numbers of the notes at the time of detection. The members of trap party including the informant proceeded to Khandapara Block office and they arrived there at about 3.00 p.m. P.W.4 and P.W.3 proceeded to the Block Office by walk and other members of trap party keeping position near the Block office waited for the signal. After 5 minutes, it was reported that the appellant was available in his residence. P.W.4 and P.W.3 then proceeded to the residence of the appellant. The trap party members waited for the signal keeping position near his residence. At about 3.50 p.m. getting signal, the trap party members rushed to the residence of the appellant. They found the appellant sitting on a single sofa of his residence holding some currency notes in his left hand. D.W.1 Mahendra Kumar Panda was sitting on his right and P.W.4 was standing near the entrance door. The D.S.P., Vigilance disclosed the identities of the trap party members and Mr. N. Nayak, Inspector caught hold of the right hand and P.W.5 caught hold of the left hand of the appellant. The appellant was challenged by the trap party members to have received the bribe of Rs.600/- from the informant. The D.S.P., Vigilance disclosed the identities of the trap party members and Mr. N. Nayak, Inspector caught hold of the right hand and P.W.5 caught hold of the left hand of the appellant. The appellant was challenged by the trap party members to have received the bribe of Rs.600/- from the informant. The appellant admitted to have received the money and showed the currency notes which were in his left hand. The appellant was asked to keep those currency notes on a teapoy. The hand wash of the appellant was taken in sodium carbonate solution resulting change of colour to pink/rose and sample was preserved. The appellant was asked to count the currency notes and after counting, it was found to be Rs.600/-. Again the hand wash of the appellant was taken and sample was preserved. D.W.1 who was sitting by the side of the appellant was asked to verify the numbers of the currency notes and compare it with the noting in the copy of the preparation report and on comparison, the numbers tallied. Hand wash of D.W.1 was taken and tested. Sample was preserved. Sudarsan Mishra (P.W.1) also compared the numbers of the currency notes which tallied. His hand wash was also taken and tested and sample was preserved. P.W.5 seized the tainted G.C. notes, four fold paper, copy of preparation report, sample bottles, case record, measurement books etc. He prepared the detection report (Ext.2) in presence of the witnesses. P.W.5 handed over the brass seal to Sudarsan Mishra (P.W.1) vide Ext.14. During course of investigation, father of the informant filed an affidavit vide Ext.15. P.W.5 collected the work order vide Ext.16 and he sent the exhibits for chemical examination and received the C.E. report vide Ext.3. He placed all the materials before the sanctioning authority and had a discussion with him and accordingly, sanction for launching prosecution against the appellant was accorded as per sanction order Ext.17. On completion of investigation, charge sheet was submitted on 31.12.1997 against the appellant for offences punishable under section 7 and section 13(2) read with section 13(1)(d) 1988 Act. 4. In order to prove its case, the prosecution examined five witnesses. P.W. 1 Sudarsan Mishra was the Junior Clerk in the office of Civil Supply Officer, Khurda. He attended the pre-trap preparation and also accompanied the trap party members to the spot. 4. In order to prove its case, the prosecution examined five witnesses. P.W. 1 Sudarsan Mishra was the Junior Clerk in the office of Civil Supply Officer, Khurda. He attended the pre-trap preparation and also accompanied the trap party members to the spot. He stated about the recovery of tainted money from the possession of the appellant and change of hand wash colour taken in chemical solution. He also compared the numbers of the recovered G.C. notes with the numbers noted in the preparation report and found the same tallied. P.W.2 Satyananda Moharana was the Asst. Director, S.F.S.L., Rasulgarh who examined the exhibits forwarded and on chemical examination, he found phenolphthalein in all the bottles in the solution of sodium carbonate and submitted the report Ext.3. P.W.3 Ashok Kumar Rath was the Junior Clerk in the Civil Supply Office, Bhubaneswar and he was also present during the pre-trap demonstration. He is a member of the trap party and acted as over hearing witness and stated about the acceptance of money by the appellant and recovery of money from him and preparation of detection report as per Ext.2. He is also a witness to the seizure lists Exts.4 to 9. P.W.4 Pramod Kumar Bagsingh is the informant of the case and he stated in detail about the preparation for trap, acceptance of money by the appellant and its detection. He further stated about the preparation of detection report. He was declared hostile by the prosecution. P.W.5 U. Rama Rao was the Inspector of Police, Vigilance, Khurda and he is the informant of the case as well as investigating officer. The prosecution exhibited seventeen documents. Ext.1 is the preparation report, Ext.2 is the detection report, Ext.3 is the chemical examination report, Exts.4, 5, 6, 7, 8, 9, 12 and 13 are the seizure lists, Ext.10 is the written FIR, Ext.11 is the fourfold paper, Ext.14 is the receipt, Ext.15 is the affidavit, Ext.16 is the work order and Ext.17 is the sanction order. The prosecution also proved two material objects. The tainted notes were marked as M.O.I and the sample glass bottles were marked as M.O.II. 5. The defence plea of the appellant is that father of the informant had taken a loan of Rs.600/- from him and on the date of occurrence, the informant refunded such money which was accepted by him. The prosecution also proved two material objects. The tainted notes were marked as M.O.I and the sample glass bottles were marked as M.O.II. 5. The defence plea of the appellant is that father of the informant had taken a loan of Rs.600/- from him and on the date of occurrence, the informant refunded such money which was accepted by him. It is specifically pleaded by the appellant that he had neither demanded any bribe for the preparation of second running bill nor instructed cashier Mr. Behera to deduct any money at the time of payment towards the first running bill. Two witnesses were examined on behalf of the defence. D.W.1 Mahendra Kumar Panda was present with the appellant at the time of trap and he stated what transpired between the appellant and the informant. D.W.2 Padma Charan Bhatta stated about the father of the informant taking Rs.600/- from the apprellant towards purchase of the grocery articles. 6. The learned trial Court formulated the following points for consideration:- (i) Whether the accused had demanded Rs. 2,000/- from the decoy for preparation of running bill for renovation work of Jogibandha tank situated at village Mahulapada and reduced to Rs.600/- payable on 19.3.1997? (ii) Whether on 19.3.1997 the accused accepted/obtained Rs.600/- from the decoy for preparation of running bill for renovation work of Jobibandha tank situated at village Mahulapda? (iii) Whether the accused had obtained/received bribe to show official favour to the decoy and the amount was not his official remuneration? (iv) Whether the accused was a public servant and there is valid sanction for launching prosecution against him. 7. The learned Trial Court after assessing the evidence on record came to hold that the decoy had received Rs.56,400/- out of Rs.70,000/- in respect of the first running bill and the second running bill had not been prepared and the work had not been completed and that there is overwhelming primary evidence that the appellant demanded illegal gratification of Rs.600/- payable on 19.03.1997 from the informant for preparation of the second running bill and that the appellant accepted the tainted G.C. notes from the informant. It was further held that basing on the C.E. report coupled with the oral evidence and the admission of the appellant, it must be held that the appellant had consciously and voluntarily accepted the tainted G.C. notes from the decoy. It was further held that basing on the C.E. report coupled with the oral evidence and the admission of the appellant, it must be held that the appellant had consciously and voluntarily accepted the tainted G.C. notes from the decoy. It was further held by the learned trial Court that the statement of D.W.1 to the extent that money was given by the informant for refund of loan to the appellant is an afterthought one as the informant did not himself say so and as such it is not believable. It was further held that the evidence of D.W.2 that father of the informant had taken loan is not believable. It was further held that from the conduct of the appellant, it appears that he approached the father of the informant namely Rama Chandra Nayak for compromise and obtained his signature on a paper to convert it to an affidavit so as to make the defence plea relating to payment of loan believable. It was further held that the appellant had not discharged his presumption and therefore, prosecution has succeeded in establishing the fact that the appellant had accepted Rs.600/- on 19.03.1997 from the informant towards illegal gratification for preparation of second running bill. It was further held that there is a valid sanction for launching prosecution against the appellant and that the ingredients of the offences are made out. 8. Mr. Devashis Panda, learned counsel appearing for the appellant contended that even though the acceptance and recovery of money is not disputed but the defence plea that the money which was paid by the informant to the appellant on the date of trap was the money which his father had taken loan from the appellant, has been established by the defence not only by adducing defence evidence but also by way of some admissions which have been made by the prosecution witnesses. It is contended that when the defence plea has been established by preponderance of probabilities, the learned Trial Court has rejected the defence plea in a mechanical manner without proper analysis of evidence. The learned counsel further contended that in absence of any clinching substantive evidence relating to demand of bribe money, mere proof of acceptance and recovery of tainted money would not be sufficient in itself to convict the appellant of the offences charged. The learned counsel further contended that in absence of any clinching substantive evidence relating to demand of bribe money, mere proof of acceptance and recovery of tainted money would not be sufficient in itself to convict the appellant of the offences charged. It is further contended that P.W.5 being the officer in charge of the success of trap is a highly interested witness and he should not have investigated the matter and submitted charge sheet. He further submitted that the sanctioning authority has not been examined and mere proof of sanction order is not sufficient to establish that there has been proper application of mind before according sanction. The learned counsel for the appellant relied upon the decisions in cases of Krishan Chander -Vrs.-State of Delhi reported in (2016) 3 Supreme Court Cases 108, P. Satyanarayana Murthy -Vrs.-District Inspector of Police reported in (2015) 10 Supreme Court Cases 152 and Niranjan Khatua -Vrs.-State of Orissa reported in 1990 (II) Orissa Law Reviews 108 and contended that the prosecution has failed to establish the ingredients of the offences charged and therefore, the impugned judgment should be set aside. Mr. Sanjay Kumar Das, learned Standing Counsel for the Vigilance Department on the other hand contended that the factum of acceptance of money from the informant and its recovery from the appellant is not disputed by the defence. The defence plea that it was not bribe money but the borrowed money by the father of the informant from the appellant which was returned by the informant on the date of trap cannot be accepted in absence of any clinching evidence in that respect. It is further contended that the prosecution case that for preparation of second running bill, the appellant first demanded Rs.2000/- which was reduced to Rs.600/- has been established by the prosecution by oral and documentary evidence. It is contended that the hand wash of the appellant taken at the spot, chemical examination report clearly established the factum of acceptance of tainted money by the appellant from the informant towards bribe. The learned counsel submitted that even though P.W.4 has not supported the prosecution case in its entirety but as discussed by the learned trial Court, the materials on record are sufficient to establish the ingredients of the offences. The learned counsel submitted that even though P.W.4 has not supported the prosecution case in its entirety but as discussed by the learned trial Court, the materials on record are sufficient to establish the ingredients of the offences. Learned counsel relied upon the decisions of the Hon’ble Supreme Court in case of Koli Lakhmanbhai Chanabhai -Vrs.-State of Gujarat reported in A.I.R. 2000 S.C. 210, Vinod Kumar -Vrs.-State of Punjab reported in A.I.R. 2015 S.C. 1206, T. Shankar Prasad -Vrs.-State of Andhra Pradesh reported in (2004) 27 Orissa Criminal Reports (SC) 599 and State of West Bengal -Vrs.-Kailash Chandra Pandey reported in A.I.R. 2005 S.C. 119. 9. Law is well settled that mere receipt of the amount by the accused is not sufficient to fasten his guilt in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. 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, while invoking the provisions of section 20 of 1988 Act, the Court is required to consider such explanation on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. Therefore, whether all the ingredients of the offences 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 its entirety and the standard of burden of proof on the accused vis-à-vis the standard of burden of proof on the prosecution would differ. 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. The proof of demand of illegal gratification is the gravamen of the offences under sections 7 and 13(1)(d) of the 1988 Act and in absence thereof, the charge would fail. 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. The proof of demand of illegal gratification is the gravamen of the offences under sections 7 and 13(1)(d) of the 1988 Act and in absence thereof, the charge would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would not be sufficient to bring home the charge under these two sections of the 1988 Act. 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. (Ref:-State of Punjab -Vrs.-Madan Mohan Lal Verma reported in A.I.R. 2013 S.C. 3368, State of Maharashtra -Vrs.-Dnyaneshwar reported in (2009) 44 Orissa Criminal Reports 425, Punjabrao -Vrs.-State of Maharashtra reported in A.I.R. 2002 S.C. 486, V. Sejappa -Vrs.-State reported in A.I.R. 2016 S.C. 2045, Panalal Damodar Rathi -Vrs.-State of Maharashtra reported in A.I.R. 1979 S.C. 1191, Mukhitar Singh -Vrs.-State of Punjab reported in (2016) 64 Orissa Criminal Reports (S.C.) 1016). 10. In the case in hand, the acceptance of Rs.600/- by the appellant from the informant (P.W.4) is not disputed. It is also not disputed that there was recovery of Rs.600/- from the appellant. The only issue which arises for consideration is whether such amount was demanded by the appellant from P.W.4 as bribe for preparation of the second running bill as per the prosecution case or it was the refund of the loan amount which was given by the appellant to the father of P.W.4 for purchase of grocery articles as per the defence plea. Since the initial burden of proving that the appellant demanded the amount other than legal remuneration is upon the prosecution, let me now analyse the evidence on record to see as to how far the prosecution has successfully discharged the burden. So far as the demand made by the appellant prior to presentation of the first information report is concerned, the evidence of the informant (P.W.4) is only relevant. So far as the demand made by the appellant prior to presentation of the first information report is concerned, the evidence of the informant (P.W.4) is only relevant. In the first information report (Ext.10), P.W.4 has mentioned that when he approached the appellant for payment of the balance dues of the executed work, the appellant demanded Rs.2,000/- (rupees two thousand only) for the preparation of the second running bill and after repeated request of the informant, the amount was reduced to Rs.600/- (rupees six hundred only) which was directed to be paid on 19.03.1997. However in his evidence, P.W.4 has stated that when he approached the appellant for passing the running bill, he did not respond for which he informed his father and his father and Haribandhu Pradhan went to the appellant and his father told him to pay Rs.600/- to the appellant. Thus there is substantial difference between what is narrated in the first information report as well as what was deposed to by the informant during trial. Neither the father of the informant nor Haribandhu Pradhan has been examined. P.W.4 stated that he went to the Vigilance Office where vigilance staff and other witnesses were present and he told them about the demand made by the appellant for doing the work. The witnesses to the preparation for trap are P.Ws.1, 3 and 5. Though P.W.3 has stated that the informant told before them that the appellant had demanded Rs.2,000/- as bribe to do his work but subsequently reduced the amount to Rs.600/-, P.W.1 on the other hand stated that the informant disclosed that the appellant had demanded bribe of Rs.2,000/- from him for passing the running bill. Thus P.W.1 has not stated about the reduction of the demand money from Rs.2,000/- to Rs.600/- as stated by P.W.3. The trap laying officer P.W.5 stated that the informant told that the appellant had demanded bribe of Rs.2,000/- for check measurement for the second running bill and that when he expressed his difficulties, the appellant insisted for payment of Rs.600/- on 19th. As already indicated, the evidence of P.W.4 is silent with respect to demand of Rs.2,000/- by the appellant as bribe for preparation of the bill and its reduction to Rs.600/-. As already indicated, the evidence of P.W.4 is silent with respect to demand of Rs.2,000/- by the appellant as bribe for preparation of the bill and its reduction to Rs.600/-. When P.W.4 has not stated about any such demand aspect by the appellant as bribe in his evidence, his disclosure before the vigilance staff and other witnesses regarding the demand cannot be accepted. It is no doubt that the learned trial Court permitted the prosecution to put leading questions to the informant (P.W.4) under section 154 of the Evidence Act. It is not clear from the record as to why the prosecution was permitted to put leading questions to the informant. Neither any application of the prosecution in that respect is available on record nor the order sheet dated 20.05.2008 on which date P.W.4 was examined indicates anything in that respect. It is the settled principle of law that the discretion vested in the Court relating to permission for cross-examination of a witness in terms of section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness and it must be judiciously and properly exercised in the interest of justice. The contingency of cross-examining the witness by the party calling him is an extra-ordinary phenomenon and permission should be given only in special cases. The Court, before permitting the party calling the witness to cross-examine him, must scan and weigh the circumstances properly and should not exercise its discretion in a casual or routine manner. Unless the Court is satisfied that the statement of witness exhibits an element of hostility or that he has resiled from a material statement which he made before an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to cross-examine him to get the truth, the Court will not normally allow a party to cross-examine its own witness. Merely because a witness in an unguarded moment speaks the truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to cross-examine his own witness should not be allowed. The informant (P.W.4) was confronted with the F.I.R. and his previous statement before police by the prosecution and he has stated as follows:- “I had scribed the report. The informant (P.W.4) was confronted with the F.I.R. and his previous statement before police by the prosecution and he has stated as follows:- “I had scribed the report. I have mentioned in the F.I.R. and stated before the I.O. that when I approached the accused in the matter, he demanded bribe of Rs.2,000/- and told not to pass the running bill unless the above amount was paid and that I expressed my helplessness, he told for payment of Rs.600/-. I have not mentioned in the F.I.R. that as per the instruction of my father, I paid Rs.600/- to the accused. It is a fact that I had stated before the I.O. that when I met the accused J.E. in his office, he inquired in the matter about the money. It is also a fact that I had stated before the I.O. that after handing before the money, the accused had accepted the same in his right hand and thereafter in his left hand and kept in the table.” The learned Standing Counsel submitted that even though P.W.4 has not supported the prosecution case in its entirety and he is a hostile witness, since P.W.4 has admitted in his evidence to have mentioned in the F.I.R. and also stated before the police in his statement about the demand of bribe by the appellant, the evidence should be accepted and basing on such statement, it can be said that the prosecution has proved the demand. He placed reliance in the case of Koli Lakhmanbhai Chanabhai -Vrs.-State of Gujarat reported in AIR 2000 SC 210 wherein it is held that the evidence of hostile witness also can be relied upon to the extent to which it supports the prosecution version and evidence of such witness cannot be treated as washed off the record. It remains admissible in the trial and there is no legal bar to base an order of conviction upon his testimony if corroborated by other reliable evidence. He placed reliance in the case of T. Shankar Prasad -Vrs.-State of Andhra Pradesh reported in (2004) 27 Orissa Criminal Reports (SC) 599 wherein it is held that even in criminal prosecution, when a witness is cross-examined and contradicted with the leave of the Court by the party calling him, his evidence as a matter of law cannot be treated as washed off record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the said witness, accept in the light of other evidence on record that part of his testimony which he found to be credit worthy and act upon it. He further placed reliance in the case of Vinod Kumar -Vrs.-State of Punjab reported in A.I.R. 2015 S.C. 1206 wherein it is held that “38......As we notice, the authorities in B. Jayaraj [(2014) 58 Orissa Criminal Reports (SC) 175: 2014 (I) Orissa Law Reviews (SC) 1014] and M.R. Purushotam [(2015) 61 Orissa Criminal Reports (SC) 1034] do not lay down as a proposition of law that when the complainant turns hostile and does not support the case of the prosecution, the prosecution cannot prove its case otherwise and the court cannot legitimately draw the presumption under Section 20 of the Act. Therefore the proposition, though industriously, presented by Mr. Jain that when Baj Singh, P.W.5, the complainant, had turned hostile, the whole case of the prosecution would collapse is not acceptable and accordingly hereby rejected.” The argument advanced by the learned Standing Counsel in this respect is not at all appreciable. P.W.4 has stated in his chief examination that his father and Haribandhu Pradhan went to the appellant and his father told him to pay Rs.600/- to the appellant. No suggestion has been given by the Prosecutor to P.W.4 that it is a false statement. Even though in the first information report, the demand aspect has been reflected but law is well settled as held in case of Madhusudan Singh -Vrs.-State of Bihar reported in A.I.R. 1995 S.C. 1437 that the F.I.R. does not constitute substantive evidence however it can be used as a previous statement for the purpose of corroboration/contradiction to the maker thereof. The allegation has to be proved at the trial. Conviction cannot be based only on the allegation in the F.I.R. In case of Utpal Das -Vrs.-State of West Bengal reported in (2010) 46 Orissa Criminal Reports (SC) 600, it is held that the first information report does not constitute substantive evidence. The allegation has to be proved at the trial. Conviction cannot be based only on the allegation in the F.I.R. In case of Utpal Das -Vrs.-State of West Bengal reported in (2010) 46 Orissa Criminal Reports (SC) 600, it is held that the first information report does not constitute substantive evidence. It can, however, only be used as a previous statement for the purposes of either corroborating its maker or for contradicting him and in such a case, the previous statement cannot be used unless the attention of witness has first been drawn to those parts by which it is proposed to contradict the witness. In case of Chaitu Naik -Vrs.-State of Orissa reported in (2015) 60 Orissa Criminal Reports 906, it is held that a statement recorded under section 161 of Cr.P.C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of section 162 of 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. Such a statement cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness. In case of State of Delhi -Vrs.-Shri Ram Lohia reported in A.I.R. 1960 S.C. 490, it is held as follows:- “13......Statements recorded under Section 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. In case of State of Delhi -Vrs.-Shri Ram Lohia reported in A.I.R. 1960 S.C. 490, it is held as follows:- “13......Statements recorded under Section 164 of the Code are not substantive evidence in a case and cannot be made use of except to corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under Section 164 of the Code and that what he had stated there was true would not make the entire statement admissible much less that any part of it could be used as substantive evidence in the case.” In view of the settled position of law as discussed above, when P.W.4 has not stated in his evidence relating to any demand made by the appellant for preparation or passing the running bill but only stated that when he approached the appellant for passing the running bill, he did not respond, merely because he has admitted to have mentioned in the F.I.R. regarding the demand aspect which according to him was scribed as per the instruction of one Pramod Panda and further admitted to have stated before the I.O. about such aspect, it would not make the evidence relating to demand admissible much less any part of it could be used as substantive evidence in the case. So far as the demand made by the appellant on the date of trap is concerned, P.W.3 has stated that seeing the informant, the appellant enquired about the money. The informant told that he had brought money and then the informant handed over the tainted G.C. notes to the accused. In the cross-examination, P.W.3 has stated that there had been no talk between the appellant and the informant except the demand made by the appellant and payment made by the informant. P.W.4, the informant on the other hand has stated when the appellant asked for money, he tendered the money saying that his father had sent the money and the appellant accepted it. Therefore, there is substantial difference between the evidence of P.W.4 and P.W.3 relating to what transpired between the appellant and the informant (P.W.4). According to the Investigating Officer (P.W.5) as well as the informant (P.W.4), D.W.1 Mahadev Panda was sitting on the right of the appellant at the time of trap. Therefore, there is substantial difference between the evidence of P.W.4 and P.W.3 relating to what transpired between the appellant and the informant (P.W.4). According to the Investigating Officer (P.W.5) as well as the informant (P.W.4), D.W.1 Mahadev Panda was sitting on the right of the appellant at the time of trap. D.W.1 has stated that the informant came to the house of the appellant and told that his father had given money for making payment to him and the appellant received the money from the informant. Therefore, on a conjoint reading of the evidence of P.W.3, P.W.4 and D.W.1 would indicate that there is nothing like demand of any bribe by the appellant relating to preparation of running bill of P.W.4. In case of Krishan Chander -Vrs.-State of Delhi reported in (2016) 3 Supreme Court Cases 108, it is held that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under sections 7 and 13(1)(d) read with section 13(2) of the 1988 Act. In case of P. Satyanarayana Murthy -Vrs.-District Inspector of Police reported in (2015) 10 Supreme Court Cases 152, it is held that the proof of demand has been held to be an indispensable essentiality and of permeating mandate for an offence under sections 7 and 13 of the Act. Qua section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under section 7 and not to those under section 13(1)(d) (i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under section 20 of the Act would also not arise. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under section 20 of the Act would also not arise. In the case in hand, there is no clinching and acceptable material available on record to show that the appellant had demanded Rs.2,000/- from P.W.4 for preparation of running bill for renovation work of Jogibandha tank situated at village Mahulapada which was reduced to Rs.600/- payable on 19.03.1997 or that on 19.03.1997 the appellant accepted/obtained bribe of Rs.600/- from P.W.4 for preparation of running bill of the said work or that the appellant had obtained/received bribe to show official favour to P.W.4. 11. The appellant has taken a specific plea that father of the informant (P.W.4) had taken a loan of Rs.600/- from him and on the date of occurrence, the informant refunded such money which was accepted by him. P.W.4 has stated that his father told him to pay Rs.600/- to the appellant and he tendered the money to the appellant saying that his father had sent the money. In the cross-examination, P.W.4 has stated that he cannot say if his father had taken loan of Rs.600/- from the appellant and had returned the same through him to the appellant. P.W.3 has stated that at the time of detection, the appellant had taken a plea that the father of the informant had taken loan of Rs.600/- fifteen days prior to that and that the informant refunded the money on that day. P.W.5, the I.O. has stated that the appellant had taken the plea that the father of the informant had taken loan of Rs.600/- and the informant had refunded that amount on that day. D.W.1 who was sitting close to the appellant at the time of trap has also stated that the informant came to the house of the appellant and told that his father had given money for making payment to him and the accused received the money from the informant. The learned trial Court gave undue emphasis on an affidavit which was stated to have been filed by the father of the informant before the I.O. and marked as Ext.15 (with objection). It is a xerox copy. The learned trial Court gave undue emphasis on an affidavit which was stated to have been filed by the father of the informant before the I.O. and marked as Ext.15 (with objection). It is a xerox copy. The I.O. has stated that he has not interrogated the identifying advocate Dandapani Swain of the deponent and he has not effected seizure of the xerox copy. On the basis of such inadmissible document and going through the contents thereof, the learned trial Court should not have jumped to the conclusion that the appellant approached Rama Chandra Naik, the father of the informant for compromise and obtained his signatures on a paper to convert it to an affidavit so as to make the defence plea relating to payment of loan believable. When the defence has not relied upon any affidavit of Rama Chandra Naik, such a finding is fallacious and highly untenable. The observation of the learned trial Court that the defence plea that money was given by the informant for refund of loan to the appellant is an afterthought one appears to be not correct. The talk which was made between the appellant and the informant before passing of the money and the immediate disclosure by the appellant before the trap party members relating to the loan taken by the father of the informant is admissible under section 6 of the Evidence Act as res gestae. When an accused gives a spontaneous explanation right at the moment when the crime is committed and there was no opportunity to fabricate such explanation or concoct a story, the explanation becomes res gestae within the meaning of section 6 of the Evidence Act. The learned Standing Counsel contended that since the appellant did not know the father of the informant prior to the date of giving loan, the loan advance plea sounds to be absurd. He placed the cross-examination of D.W.2 Padma Charan Bhatta. D.W.2 has stated in his chief examination that on 01.03.1997 Rama Chandra Nayak, the father of the informant had come for marketing to observe the 21st day ceremony of his grandson and he came to the Block and told him about non-availability of Rs.600/- towards payment for grocery articles. He placed the cross-examination of D.W.2 Padma Charan Bhatta. D.W.2 has stated in his chief examination that on 01.03.1997 Rama Chandra Nayak, the father of the informant had come for marketing to observe the 21st day ceremony of his grandson and he came to the Block and told him about non-availability of Rs.600/- towards payment for grocery articles. He further stated that he told the father of the informant about the non-availability of money with him and proceeded to the Block Office and the father of the informant also accompanied him and they came to the office room of the appellant and when he told about the need of money, the appellant paid Rs.600/- to the father of the informant who told to refund the money after fifteen days through his son. Even though the father of the informant was not known to the appellant but D.W.2 was very much known to the appellant as according to D.W.2, he was working as Secretary of Jagannath Prasad Gram Panchayat and the appellant used to assist the Panchayat in the developmental work and the appellant had good relationship with the Gram Panchayat. In view of the previous close acquaintance of the appellant with D.W.2, when D.W.2 approached him regarding need of money of Rs.600/- and accordingly, it was given to the father of the informant on the mediatorship of D.W.2, there is nothing absurd or improbability feature in it. Since the appellant is not required to establish his defence plea by proving beyond reasonable doubt like the prosecution but can establish the same by preponderance of probability, an overall assessment of the evidence adduced by the appellant coupled with the immediate disclosure made by the appellant before the trap party members, it cannot be said the defence version is improbable. Moreover, the prosecution cannot derive any advantage from the falsity or other infirmities of the defence version, so long as it does not discharge its initial burden of proving its case beyond all reasonable doubt. In case of Shankarlal Gyarasilal Dixit -Vrs.-State of Maharashtra reported in A.I.R. 1981 S.C. 765, the Hon’ble Supreme Court held that falsity of defence case cannot take the place of proof of facts which prosecution has to establish in order to succeed. In case of Shankarlal Gyarasilal Dixit -Vrs.-State of Maharashtra reported in A.I.R. 1981 S.C. 765, the Hon’ble Supreme Court held that falsity of defence case cannot take the place of proof of facts which prosecution has to establish in order to succeed. A false plea by the defence can be best considered as an additional circumstance provided other evidence on record unfailingly point to the guilt of the accused. Therefore, if the evidence on record fails to point to the guilt of the accused beyond reasonable doubt, it is of no consequence whether or not the defence version is false. The learned Trial Court has not considered the defence plea of the appellant on the touchstone of preponderance of probability and whimsically rejected the same holding that the plea of the appellant that father of P.W.4 had taken Rs.600/- from him for the purchase of grocery articles is not acceptable. Therefore, I am of the humble view that the appellant has succeeded in establishing his defence plea by way of preponderance of probability. 12. The Investigating Officer (P.W.5) has stated that as per the work order, the work was to be completed by 31.01.1997 and administrative approval has been given by the Collector for Rs.1,00,000/- (one lakh only). The informant (P.W.4) has stated that he had not completed the work as per work order. Even though P.W.4 has stated that the bill was made for Rs.70,000/- but he got Rs.56,400/- and though he signed in the bill for the remaining amount of Rs.15,000/- but money was not paid to him. The I.O. has stated that at the time of interrogation, the B.D.O. had stated that after deduction of advance of Rs.60,000/- and security deposit of Rs.2100/-, the rest amount of Rs.7900/- had been given to the informant. The I.O. has further stated that Panchanan Behera, the then cashier had stated that he had deducted Rs.2100/-. Though the statement of the Investigating Officer what the B.D.O. and Panchanan Behera stated before him are not substantive evidence but it cannot be lost sight of the fact that the B.D.O. and Panchanan Behera were the charge sheet witnesses and they have been withheld during trial by the prosecution perhaps because their examination would have falsified the case of the informant that there was any illegal deduction from his first running bill amount. Except proving the work order (Ext.16), the bills and other documents relating to payment of the first running bill amount have not been proved. It is no doubt true that the prosecution has to decide which witnesses would be examined and which documents are to be proved, but certainly the prosecution has to act fairly and honestly and in such a manner as it does not cause prejudice to the accused. The duty of the prosecutor is to assist the Court in reaching a proper conclusion with regard to the case which is brought before it for trial. If inconvenient witnesses are suppressed from the witness box by the prosecution, it would not be a fair trial. Therefore, the prosecution case that there was illegal deduction from the first running bill of the informant at the instance of the appellant cannot be accepted. 13. Adverting to the contention raised by the learned counsel for the appellant that sanctioning authority has not been examined and mere proof of sanction order is not sufficient to establish that there has been proper application of mind before according sanction, it is the settled law that according of sanction is not idle formality but a solemn and sacrosanct act following the consideration of all the materials placed before the sanctioning authority who is not to be guided by any extraneous consideration, which alone provides the protection to public servants against frivolous prosecutions and litigations. The sanctioning authority must keep in mind their solemn duty to safeguard the interests of public servants from the pilferages and false allegations and stage managed prosecution cases against such people. This requirement of law is necessarily incumbent upon the investigating agency, to be complied with and the sanction order from the competent authority is to be produced before the Court taking cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 of 1988 Act alleged to have been committed by a public servant as provided under section 19 of the 1988 Act. The burden of proof is squarely on the prosecution to show that the sanction accorded in a given case is valid in law and such burden includes proof that the sanctioning authority has accorded the sanction with reference to the facts to which the proposed prosecution was to be based and that in this context, it has become essential for all the facts which were relied on to be referred on the face of the sanction, or it might be proved by independent evidence that the sanction was accorded for prosecution after those facts had been placed before the sanctioning authority. Mere identification of an error or omission or irregularity in according the sanction by sanctioning authority is not enough but the identification must be of such a nature which resulted in the failure of justice to the aggrieved person. The objection of the sanction required to be accorded under section 19 of 1988 Act cannot be taken so lightly. In case of Mansukhlal Vithaldas Chauhan -Vrs.-State of Gujarat reported in A.I.R. 1997 S.C. 3400, it is held as follows:- “19. Since the validity of "Sanction" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. Since the discretion to grant or not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority "not to sanction" was taken away and it was compelled to act mechanically to sanction the prosecution.” In case of Niranjan Khatua -Vrs.-State of Orissa reported in 1990 (II) Orissa Law Reviews 108, a learned Single Judge of this Court held that when no witness was examined to state on oath that the sanction order given by the appropriate authority was after due application of mind to the facts and circumstances of the case and there is no reliable evidence to show that there is a valid sanction to prosecute the accused, on that score also, the prosecution must fail. It appears on the bare perusal of the sanction order (Ext.17) that the sanctioning authority on the perusal of the F.I.R., the report of the S.P. furnished by the vigilance, other relevant papers and discussing the evidence with the Investigating Officer, being satisfied after application of mind, has been pleased to observe that there is ample justification to prosecute the appellant and accordingly accorded sanction. P.W.5 has stated that he had discussion with the sanctioning authority and he had personally produced the documents like case diary, statements of witnesses, copy of preparation report, seizure lists etc. before the sanctioning authority. The I.O. has denied the suggestion given by the defence that nothing was produced before the sanctioning authority and that signature of the sanctioning authority was obtained on a draft sanction order produced before him. Even though the sanctioning authority has not been examined as a witness, the sanction order gives the details of the records perused and regarding discussion with the Investigating Officer before granting sanction. The Investigating Officer has also supplemented about the details of placement of materials before the sanctioning authority and discussion with him. He has specifically stated that he placed all the materials before the sanctioning authority and had discussion with him who had accorded sanction for launching prosecution against the appellant. The Investigating Officer has also supplemented about the details of placement of materials before the sanctioning authority and discussion with him. He has specifically stated that he placed all the materials before the sanctioning authority and had discussion with him who had accorded sanction for launching prosecution against the appellant. He has proved the sanction order Ext.17 and also proved the signature of Dr. B.P. Das, Engineer-in-chief, Water Resources, Orissa, Bhubaneswar to which he was acquainted as Ext.17/1. It is no doubt true that independent application of mind and consequent satisfaction arrived at, for granting sanction under section 19 of the 1988 Act, are matters which could be proved only by the sanctioning authority and nobody else. It is also true that a document can be proved even by a person familiar with the handwriting of the person who issued the document but when independent application of mind in the process of granting sanction itself is an issue, somebody cannot come and prove the sanction claiming to be the person familiar with the handwriting or signature of the sanctioning authority and the sanctioning authority himself will have to be examined to prove the sanction. It is the duty of the prosecution to examine the sanctioning authority during trial not only to prove the sanction order but also to satisfy the judicial conscience that it was in accordance with law. By such examination, the defence can get an opportunity in pointing out lacunas in the sanction order. Therefore, the non-examination of the sanctioning authority cannot be lightly brushed aside. However, since in the case in hand, the document pertaining to sanction vide Ext.17 gives detailed account of materials perused, discussion with the Investigating Officer which is corroborated by the ocular testimony of the Investigating Officer and no infirmity has been brought out on record by the defence in the process of grant of sanction, mere non-examination of the sanctioning authority cannot vitiate the prosecution against the appellant. 14. 14. Adverting to the contention raised by the learned counsel for the appellant that P.W.5 being the officer in charge of the success of trap should not have investigated the matter as he is a highly interested witness, there cannot be any second opinion that in a trap case, the trap-laying officer plays a vital role and his craft in managing everything right from the stage of preparation till the trap is successfully completed and preparation of all the necessary documents assumes much importance. The officers of the Vigilance Department must secure independent and respectable witnesses so that evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt whether or not any money was paid to the public servant by way of bribe. It is also the duty of the officers of the Vigilance Department to safeguard for the protection of public servant against whom a trap case may have been laid. The other parts of investigation after the successful trap like examination of witnesses, collection of material documents, sending the articles for chemical analysis and obtaining sanction from competent authority till the submission of final form has also got its importance. Unless any prejudice is shown or any glaring infirmity or illegality in the investigation is established, the prosecution case cannot be discarded. In the fairness of things, the investigation after a successful trap is required to be conducted by another officer higher in rank than the trap laying officer as the role/task of trap laying officer ends immediately after the trap is over. 15. Learned counsel for the Vigilance Department placed reliance in the case of State of West Bengal -Vrs.-Kailash Chandra Pandey reported in AIR 2005 SC 119 wherein it is held that the Appellate Court should be slow in re-appreciating the evidence. The trial Court has the occasion to see the demeanour of the witnesses and it is in a better position to appreciate the evidence and the Appellate Court should not lightly brush aside the appreciation done by the trial Court except for cogent reasons. The trial Court has the occasion to see the demeanour of the witnesses and it is in a better position to appreciate the evidence and the Appellate Court should not lightly brush aside the appreciation done by the trial Court except for cogent reasons. In view of the materials available on record, in the absence of any acceptable evidence with regard to demand of bribe by the appellant from the informant (P.W.4) for preparation of the second running bill, when the defence plea relating to the reason for acceptance of money in question has been established by preponderance of probability, I am of the humble view that guilt of the appellant has not been established beyond reasonable doubt and the impugned judgment suffers from perversity and therefore, I am constrained to give benefit of doubt to the appellant. In the result, the criminal appeal is allowed. The impugned judgment and order of conviction of the appellant under section 7 and section 13(2) read with section 13(1)(d) of the 1988 Act and the sentence passed thereunder 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.