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2018 DIGILAW 782 (ORI)

Bhagirathi Biswal v. State of Odisha

2018-09-03

J.P.DAS

body2018
ORDER : J.P. Das, J. 1. This is an application under Section 389 of the Criminal Procedure Code seeking stay of conviction of the appellant-petitioner who stood convicted under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 and has been sentenced to undergo different periods of rigorous imprisonment and fine by the learned Special Judge, Vigilance, Sambalpur in C.T.R Case No. 20 of 2009 in judgment dated 12.04.2018. 2. It was alleged that the complainant lodged a written report before the S.P., Vigilance, Sambalpur alleging that the complainant was an applicant for P.M.R.Y. loan and the accused-petitioner who was working as V.A.S, Rengali in the district of Sambalpur, demanded an illegal gratification of Rs. 2000/- from the complainant for issuing insurance certificate of two cows. On receipt of the complaint, the matter was entrusted to one Inspector, Vigilance who laid a trap in the office of the appellant-petitioner and the complainant on appearance before him, gave him four numbers of five hundred rupee currency notes which were accepted by the appellant. As per pre-arranged signal, the officers rushed to the spot and recovered the tainted notes from the appellant, and on taking hand wash, the colour of liquid changed to pink. Thereafter, further requirements of the investigation were complied with and on completion of investigation, charge-sheet was submitted against the appellant for the offences punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the P.C. Act. 3. In course of trial, six witnesses were examined on behalf of the prosecution as against none preferred any defence. On analyzing the oral as well as documentary evidence placed before the learned trial court, the accused-appellant was found guilty of the charged offences and being convicted has been awarded with the sentences. 4. The appellant has preferred the appeal on the grounds that there being no material evidence on record, the learned trial court erred in law in reaching the conclusion of guilt against the appellant. It has been submitted that the complainant as well as other independent witnesses had turned hostile during trial and the learned trial court simply relied upon the evidence of the officials witnesses to hold the accused-appellant guilty which is not sustainable in law. It has been submitted that the complainant as well as other independent witnesses had turned hostile during trial and the learned trial court simply relied upon the evidence of the officials witnesses to hold the accused-appellant guilty which is not sustainable in law. It has further been submitted that there being no evidence on record as to the demand made by the appellant for any illegal gratification, there could not have been a conviction simply relying on the evidence of the official witnesses in absence of any independent evidence on record. 5. In the present application, it has been prayed to stay the conviction of the appellant with the submissions that the impugned judgment passed by the learned trial court having been passed on no material evidence on record, the appellant-petitioner has a fair chance of acquittal and unless the conviction is stayed during the pendency of the appeal, which would take a considerable time for disposal, the appellant would be severely prejudiced as he would be removed from his service thereby pushing him and his family to hardship and distress. 6. Learned counsel appearing for the appellant-petitioner placed the evidence of the prosecution witnesses and submitted that the complainant himself appearing as P.W 1 stated that he had been to the office of the accused petitioner for insurance of his cows and since the accused avoided to take steps on three to four occasions, the complainant was insisted by some boys to give two thousand rupees to the accused. Hence, he reported the matter before the Vigilance Office. He has further stated that he went to the office of the accused along with other vigilance officials and independent witnesses as directed, and the accused asked him as to why he had come. He went on to add that he sat in front of the accused and handed him over two thousand rupees in shape of four five hundred rupee currency notes which were tainted. The accused returned him five hundred rupees. Thereafter, as per pre-arranged signal, the vigilance staff arrived at the spot, recovered the tainted money from the possession of the accused and took the hand wash of the accused and the colour was turned to pink. Similar was the evidence of P.Ws 2 and 3. The accused returned him five hundred rupees. Thereafter, as per pre-arranged signal, the vigilance staff arrived at the spot, recovered the tainted money from the possession of the accused and took the hand wash of the accused and the colour was turned to pink. Similar was the evidence of P.Ws 2 and 3. Thus, it was submitted by learned counsellor the appellant-petitioner that there was absolutely no whisper either by the complainant himself or by other two independent witnesses as to any demand made by the accused for any illegal gratification and all the three independent witnesses have been declared hostile by the prosecution. It was submitted that in absence of any material as to the demand made by the accused more so, in view of the specific statement of the complainant that he lodged the report before the Vigilance Office being asked by some boys, there could not have been a conclusion of guilt against the accused as has been reached by the learned trial court. It was strenuously submitted by the learned counsel for the appellant-petitioner that it is a clear case of acquittal and the appellant-petitioner having been wrongly convicted would suffer irreparable loss unless the conviction is suspended till disposal of the appeal which would take quite a considerable time for being of the year 2018. 7. Per contra, it was submitted by the learned counsel for the State, Vigilance that at this stage, the merits of the appeal cannot be considered and it is the undisputed settled position of law that in cases of corruption, the conviction should not be stayed unless the situation is exceptional. It was also submitted that the mere apprehension that the appellant may lose his job being removed from his service, cannot be said to be irreparable injury coupled with irreversible consequences so as to be considered as an exceptional circumstance to stay the conviction. 8. Learned counsel for the State, Vigilance has also placed different case laws in support of his contentions. 8. Learned counsel for the State, Vigilance has also placed different case laws in support of his contentions. It was submitted on behalf of the State, Vigilance that as per the settled position of law, merely because a witness has become hostile, his entire evidence cannot be thrown out, and in the instant case, the witnesses have stated categorically about the acceptance of the bribe money by the accused-appellant and their evidence further reveals that the complainant had made earlier extrajudicial statements that the accused-appellant had demanded money from him. It was also submitted that the official witnesses cannot be presumed to have any axe to grind against the accused-appellant in giving their statements that the complainant has lodged the report alleging demand of illegal gratification and in the trap laid by the vigilance officials, the accused-appellant was found in possession of the tainted money. 9. Lastly, it was contended by the learned counsel for the State, vigilance that since it was found out that the accused was caught with the tainted money in possession, there shall be a presumption of guilt against the accused under Section 20 of the Prevention of Corruption Act putting the onus on his shoulder to explain such position, and in the instant case there was absolutely no explanation on behalf of the accused-appellant in that regard. The position of law is undisputed that even though suspension of conviction is not alien to Section 389(1) of the Criminal Procedure Code, its exercise should be limited to very exceptional cases (K.C. Sareen Vrs C.B.I. Chandigarh, AIR 2001 SC 3320 ). It has been the observation of the Hon'ble Apex Court that the grounds, that a long time will be taken in deciding the appeal or there are good points to argue are not sufficient for passing an order for stay of conviction (State of Punjab Vrs Deepak Nattu) AIR 2008 SC 35 . It has been repeatedly observed by the Hon'ble Apex Court in a catena of decisions that the appellate court in an exceptional case may put the conviction in abeyance, but such power must be exercised with great circumspection and caution for the purpose of which, the applicant must satisfy the court as regards the evil that is likely to befall him, if the conviction is not suspended. It has also been the observation that the court has to consider all the facts as are pleaded by the appellant in a judicious manner and examine whether the facts and circumstances involved in the case are as such that they warrant a stay of conviction Such a relief cannot be granted only on the ground that the employee may lose his. job. 10. The learned counsel for the appellant-petitioner relied upon a decision of this Court as reported in 2017(II) OLR 864 (Sudarsan Sahani Vrs State of Odisha, (Vig.) and submitted that taking into consideration the possible delay for disposal of the appeal, the stay of conviction has been granted. With due respect, it may be mentioned that the facts and circumstances of the case in the aforesaid citation were absolutely different. for the reasons that in the said case the learned trial court while acquitting the appellant for the offences punishable under Section 420/468/201/120-B, I.P.C. suddenly jumped to a conclusion that the accused was guilty under Section 13(2) read with Section 13(1)(d) of the P.C. Act without assigning any reason for such a conclusion. It was also observed in the said case that the alleged acts were found out against the other co-accused persons, as was observed in the impugned judgment, arid while the said other co-accused persons were acquitted by the learned trial court, the trial court jumped to the conclusion of guilt against the appellant without assigning any reason therefor. But, in the instant case, the sole contention that has been advanced on behalf of the appellant is that there was no material on record to establish that the accused-appellant had demanded illegal gratification from the complainant and hence, the conviction against the appellant is unsustainable in law That apart, as was submitted on behalf of the State, Vigilance, the complainant himself has admitted in his cross-examination that he had earlier stated before the Vigilance officials while recording his statement under Section 161 Cr.P.C. that the accused had demanded Rs. 2000/- Similarly the P.W.2 has also stated in his cross-examination that the complainant had narrated before him at the time of preparation of trap that the accused was demanding bribe of Rs. 2000/-. 2000/- Similarly the P.W.2 has also stated in his cross-examination that the complainant had narrated before him at the time of preparation of trap that the accused was demanding bribe of Rs. 2000/-. Of course, these matters and veracity of the statements of the witnesses are to be gone into while hearing the appeal on merit, but the contention made on behalf of the appellant-petitioner that there was absolutely no material on record as to the demand made by the accused cannot be accepted. 11. Apart from the above, the recovery of the tainted money from the accused has been stated to by all the witnesses and hence, a presumption was created against the accused which he had to explain But as has been observed by the learned trial court, the accused-appellant has not whispered anything in support of his plea of denial in his statement recorded under Section 313, Cr.P.C. 12. Thus, there being no other ground excepting the plea that accused may lose his job, which has been repeatedly observed by the Hon'ble Apex Court not to be a ground for staying conviction, I find no other reason to hold the present case as an exception so as to grant the stay of conviction. Accordingly, the interim application being devoid of merits stands rejected.