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2019 DIGILAW 441 (ORI)

N. G. Charian v. State of Orissa

2019-07-09

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. This appeal has been directed against the judgment of conviction and order of sentence dated 29.04.1992 passed by the learned Special Judge (Vigilance), Sabmalpur in T.R. Case No. 44 of 1987 corresponding to Sambalpur Vigilance P.S. Case No. 5 of 1987. By the said judgment, the appellant having been convicted for the offence under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 (in short, 'the P.C. Act') and under section 161 of the Indian Penal Code (for short, 'the IPC), order has been passed that he would undergo rigorous imprisonment for one year and pay fine of Rs. 500/- in default to undergo rigorous imprisonment for three months on each count of the offence under which he has been convicted with the stipulation that substantive sentences would run concurrently. 2. The prosecution case, in short, is that complainant (P.W. 1) was a petty contractor undertaking different works under the Executive Engineer, Command Area Development Agency (CADA), Sambalpur in the year 1987-88. He having been paid with the amount for the work executed by him as against the bills raised; in March, 1987, it was ascertained that 2% of the bill amount had been deducted towards the income tax and that in so far as the complainant's bills are concerned, the deducted sum was Rs. 661/-. In view of the fact that for the income of the complainant in that year, he being not liable to pay the income tax, he contacted the officials of the income tax to get refund of said sum of Rs. 661/-. Coming to know from them that the reports of deduction of the income tax against his bills had not been received from the Office of the Executive Engineer, CADA, Sambalpur Division in the income tax office so as to advance the prayer for refund of the said deducted amount towards income tax, he came to the office of the Executive Engineer, CADA, Sambalpur and met the accused who was then the clerk-in-charge of checking of the bills. He requested the accused to send the detail report as to the deduction of income tax against his bills in order to advance the claim of refund of the said amount. It is alleged that the accused for that purpose demanded bribe of Rs. He requested the accused to send the detail report as to the deduction of income tax against his bills in order to advance the claim of refund of the said amount. It is alleged that the accused for that purpose demanded bribe of Rs. 100/- from the complainant in order to send the report showing the detail deduction of income tax from the billed amount of the complainant towards the work executed by him. It is stated that although expressing inability to meet the demand, the complainant approached the accused to send the same, yet the accused remained adamant and insisted upon his demand of illegal gratification. So, being frustrated, the complainant went to the Vigilance Office at Sambalpur and lodged the written report (Ext.11), before the Superintendent of Police, Sambalpur Vigilance Division, which was treated as FIR and that led to the registration of Sambalpur Vigilance P.S. Case No. 5 of 1987. Subsequent to the lodging of the FIR by the complainant, independent witnesses were brought on requisition from the office of the Additional C.T.O, Sambalpur in whose presence the complainant narrated the factum of illegal demand of gratification of a sum of Rs. 100/- by the accused in order to give the report of deduction of amount towards the income tax from the billed amount. The complainant produced two G.C. notes of rupees fifty denomination. Their numbers were noted on a paper for future comparison by the Additional C.T.O., Sambalpur-I (P.W. 3). Demonstration was made in the presence of the complainant and all other official and independent witnesses in the Vigilance Office. The complainant was then showed as to how colourless solution of sodium carbonate turns pink on addition of phenolphthalein powder. Those two currency notes being rubbed with phenolphthalein powder were given to the complainant for being kept in the shirt pocket to be delivered to the accused on his demand. Pursuant to the arrangement, as above, on 3.3.1997, the official members of the trap laying party along with the complainant and one Pramod Nath (P.W. 5) being set up as the accompanying witness to see the giving of the bribe to the accused and its receipt by him and then to signal; proceeded to the office of the Executive Engineer, CADA, Sambalpur Division. The trap was laid successfully in the sense that the complainant and Sri Nath went to the office, the complainant after some time paid the bribe money on demand by the accused at the verandah of the office and the accused receiving the same kept in his right side pant pocket. Signal being given by that Pramod Nath, Vigilance Officials and others went there and finally, the two fifty rupees G.C. notes were recovered. The vigilance officers seized all the incriminating materials including the currency notes. The hands of the accused being washed with sodium carbonate solution, the same turned pink and so also the wash of the pant pocket. The wash was preserved and sent for examination. It has been ascertained that the solution contain phenolphthalein. The relevant file was also seized. On completion of investigation, charge-sheet being filed, the accused faced the trial. 3. The accused has denied the factum of demand of bribe and to have received those two currency notes of fifty denomination towards illegal gratification pursuant to the demand for doing that work of dispatching the detail statement as to deduction of amount from the bills of the complainant towards income tax to the concerned office. His specific plea is that one day his colleague Mr. Mistri (D.W. 1) had given two torn fifty rupees currency notes to the complainant for getting those exchanged in the Bank and on 03.03.1987 complainant had returned those two notes to be given to Mr. Mistri as he was then absent in the office and the accused having received the same in good faith fell prey to the mischievous plot laid by the complainant coining a story to harass him. 4. Learned counsel for the appellant (accused) submitted that the evidence on record being scanned would clearly go to show that the finding of the trial court as to the demand of bribe is erroneous. He submitted that the evidence of P.W. 4 who is the decoy does not receive corroboration on material particulars especially on the score of demand of bribe by the accused and thus the same also do not go to establish said factum of demand of bribe by the accused beyond reasonable doubt. He submitted that the evidence of P.W. 4 who is the decoy does not receive corroboration on material particulars especially on the score of demand of bribe by the accused and thus the same also do not go to establish said factum of demand of bribe by the accused beyond reasonable doubt. It was submitted that the presumption as available under section 20 of the P.C. Act cannot be drawn as the factum of demand of bribe by the accused has not been, proved beyond reasonable doubt. It was also submitted that in so far as recovery of those two currency notes are concerned the defence evidence clearly go to explain as to how those came to be recovered from him by preponderance of probability and thus when the explanation cannot be discarded, the trial court erred both in fact and law in holding the accused guilty of commission of offences as noted above. He thus submitted that the finding of guilt under section 5(1)(d)/5(2) of the P.C. Act as also under section 161 of the IPC is liable to be set aside. Learned Standing Counsel (Vigilance) submitted that the evidence on record wholly support the finding that the accused had demanded bribe of Rs. 100/- from P.W. 4 and in view of that the trial court finding that the prosecution has well proved the factum of recovery of the tainted money from the accused which is also not so denied by the accused, having gone to hold the accused guilty for above offences is unassailable and the present appeal bears no merit. It was his submission that the defence case, as projected, being wholly unacceptable when it clearly appears to be a created one and the prosecution evidence being wholly reliable on the point of demand and acceptance of bribe, the judgment of conviction and order of sentence cannot be found fault with. On the above rival submissions, the evidence on record has to be examined to ascertain whether the demand of illegal gratification which is the sine qua non to constitute the offence under the P.C. Act has been proved beyond reasonable doubt or not and that the accused had voluntarily accepted the money knowing it to be bribe. 5. Prosecution in order to establish its case against the accused has examined six witnesses besides providing the F.I.R. (Ext. 11) and other documents prepared in course of investigation. 5. Prosecution in order to establish its case against the accused has examined six witnesses besides providing the F.I.R. (Ext. 11) and other documents prepared in course of investigation. The A.S.I. Vigilance as the member of the trap laying party has been examined as P.W. 1, P.W. 2 is the sanctioning authority. The ACTO has been examined P.W. 3, P.W. 4 is none other than the complainant and P.W. 5 is the peon of the Office of A.C.T.O. who was also the member of that party. The Inspector, Vigilance (I.O.) has come to depose as P.W. 6. The defence has examined one, namely, Indrajit Mistri (D.W. 1) and proved the certificates said to have been already prepared to be' given to P.W. 4. 6. The position of law on the point is well settled that once the demand and voluntary acceptance of illegal gratification knowing it to be the bribe are proved by evidence, then conviction for commission of offence under section 5(1)(d) read with section 5(2) of the P.C. Act has to follow against the accused. Indeed these twin requirements are sine quo non for proving the offence for which the accused has been convicted. Thus, in the light of the above and keeping in view the rival contention touching the evidence, reappraisal of evidence stands as the need to adjudge the sustainability of the finding returned by the trial court in the above scores. 7. First coming to the FIR (Ext. 11), it is seen that P.W. 4 has not indicted therein as to when he had gone to the Income Tax Office and thereafter when to the Office of the Executive Engineer, CADA, Sambalpur Division and particularly when he met the accused in the said office and ventilated his grievance for redressal when in turn, the demand of bribe was advanced from the side of the accused. It has been stated that the fact as regards non-receipt of the detail statement as to the deduction of the income tax in the Income Tax Office had been ascertained through a lawyer, namely Mr. Pandia, whom the prosecution has of course not chosen to examine. The evidence of P.W. 4 is to the effect that he was not liable to pay the income tax and, therefore, it was to be refunded to him. He has specifically stated that his advocate Mr. Pandia, whom the prosecution has of course not chosen to examine. The evidence of P.W. 4 is to the effect that he was not liable to pay the income tax and, therefore, it was to be refunded to him. He has specifically stated that his advocate Mr. Pandia used to move the office of the Authority for return of the money, Next stating about the then assignment of the accused, he jumps to say that the accused did not return the money to him, which had been kept back and, therefore, he made an application through Mr. Pandia for refund of the money but it-was not paid any heed to and he repeatedly approached the accused for return of money, but he did not pay any attention to it. When the very prosecution case is that the money having been deducted from the bill of P.W. 4 towards the income tax, it was to be refunded by order from the office of Income Tax and it is said that the refund order could have only been passed on receipt of detail deduction report from the office where the accused was the head clerk and thus no money was to be paid back to this P.W. 4 in the office of the Executive Engineer; so, there was no reason for the P.W. 4 to ask the accused to pay him the money back. In fact, the position is admitted by defence as can be seen from office order, Ext. A to G (Except Ext. B). This important part of the evidence of P.W. 4 goes to create grave doubt on the foundation of the prosecution case and rather it is shaken which has been ignored by the trial court. It gives a blow to the very foundation and in fact cuts at its root when admittedly this accused was not to refund the money and his job to be done was to send the statement to the Income Tax Department for onward action which is evident from the prepared statements proved by defence. It gives a blow to the very foundation and in fact cuts at its root when admittedly this accused was not to refund the money and his job to be done was to send the statement to the Income Tax Department for onward action which is evident from the prepared statements proved by defence. This provides all such inference that the P.W. 4, without understanding the procedure, had approached the accused for refund of the money and he having not been paid back, which was not within his power, P.W. 4 might have nurtured the grudge and went to grind the axe as his expectation that the accused would do the job by refunding the money was not fulfilled by the accused and for that he had to run through another channel by engaging an advocate etc. This witness when admittedly had engaged Mr. Pandia to do the needful, no where it is stated that whether he at all had intimated Mr. Pandia about this illegal act of the accused in advancing demand of illegal gratification. In his evidence, he has insisted that he repeatedly approached the accused for payment of the money, which is not the prosecution case. At the risk of repetition it be stated that it is the case of the prosecution that the accused demanded illegal gratification for sending the statement as to the deduction of money towards the income tax from the bills of P.W. 4 to the Income Tax Office in initiating the process of refund and not to refund the amount deducted towards income tax. When this P.W. 4 is not stating either in the FIR or in evidence that prior to the date of laying of the trap when the accused had demanded illegal gratification, he has said regarding the demand and payment on the date of laying of the trap, i.e. 3.3.1987. He says that when he entered into the office leaving the Vigilance Office, other members of the trap party were outside and he went only being accompanied by the witness, namely, Pramod Chandra Nath (P.W. 5). The accused was not present in the office and, therefore, he went to the nearby hotel. While going, he saw the accused coming from the hotel side and then followed him. The witness appears to have shown the conduct being of very much impatient. The accused was not present in the office and, therefore, he went to the nearby hotel. While going, he saw the accused coming from the hotel side and then followed him. The witness appears to have shown the conduct being of very much impatient. to handover the money to the accused at the earliest as if to take care that in case upon passing of the day, everything would turn futile. Admittedly, when it was during the office hour, there arises no reason for this P.W. 4 to rush to the hotel instead of waiting for some minutes even in the place where the, accused was to come to join his work. Next, he says that on the verandah, the accused demanded the money and then he paid. The accompanying witness, i.e. P.W. 5 has also said that the accused, on their arrival, was not present in the office, but he is not saying that P.W. 4 had gone towards the hotel and on the way, he found the accused coming and so came back following him in reaching the verandah of the office. He does not say to have followed P.W. 4, It is his evidence that they met the accused in front of the office where P.W. 4 and the accused had a talk. His categorical statement is that no money was paid on the verandah and then the accused and P.W. 4 went inside the office and he followed them but they went out of his range of visibility. He is not stating to have heard the conversation between the accused and P.W.4, more specifically demand by accused or to have even seen the handing over to two fifty rupees currency notes by P.W. 4 to the accused and his keeping the same in pant pocket. On being examined from the side of the prosecution with the permission of the court, he has said to have stated nothing on the score before the investigating officer in course of the investigation. During cross-examination, P.W. 4 has stated, which has to be taken note of that at this stage, that on 3.3.1987 at 9.00 am, he had gone to the very office and then it had not been opened. The reason for the same has not been deposed to by him. He then has further stated that the staff of the office came around 10.30 to 11.00 am. The reason for the same has not been deposed to by him. He then has further stated that the staff of the office came around 10.30 to 11.00 am. His next statement is that he came to the Vigilance Office straight from home at 9.00 am. The FIR has been registered by the Inspector of Vigilance on 3.3.1987, but noting as to its presentation before the Superintendent of Police or receipt by Vigilance Inspector is absent: P.W. 6, the Inspector of Vigilance, who is the I.O. is totally silent on the score. P.W. 4, the complainant has also not deposed about the time when he met the Superintendent of Police and then came to the Inspector of Vigilance on being so directed. The trap has been laid on 3.3.1987 whereas the A.S.I. of Vigilance, examined as P.W.1, has not stated as to the time when they left office for laying the trap. The A.C.T.O, (P.W. 3) stated about his arrival in the Vigilance at 3.00 pm and he states to have left the Vigilance Office around 3.40 to 3.45 pm and they reaching the office where the accused was working at 3.50 pm and at 4.15 pm, the signal was received. This witness has also stated that the complainant while narrating the post trap incident, if had at all stated as to the date and time of advancement of the demand by the accused on being requested to send the detail statement as to deduction of income tax. This witness has then stated to have not remembered in which language the accused was interrogated or he replied. All the above features being noticed in the evidence, in my considered view, the trial court by simply noting in a general manner that P.W. 3 and-6 have corroborated the evidence of P.W. 4 in all material particulars without any sort of critical analysis, when has rendered the finding that the prosecution evidence is reliable in so far as the demand of illegal gratification from the side of the accused, does not stand to judicial scrutiny. That apart, on the face of the evidence led in by the defence by. That apart, on the face of the evidence led in by the defence by. examining D.W. 1 that he had given to the complainant (P.W. 4) for exchanging two fifty rupees currency notes in the bank which had been received by the accused being handed over by P.W. 4 coupled with the evidence that D.W. 1 was then not present in the office which is not unusual in view of the fact that it was almost during the end of the office hour, the finding of trial court that the prosecution has establish its case beyond reasonable doubt is not sustainable. Thus, having come to the conclusion that the twin requirements of demand of illegal gratification by the accused has not been proved from the side of the prosecution by leading clear, cogent and acceptable evidence beyond reasonable doubt, the judgment of conviction recorded against the accused for commission of offence under section 5(1)(d) punishable under section 5(2) of the P.C. Act read with section 161 of the IPC and the consequential order of sentence impugned in this appeal, are liable to the set aside.. 8. In the wake of aforesaid, the appeal is allowed and the judgment of conviction and order of sentence dated 29.04.1992 passed by the learned Special Judge (Vigilance), Sabmalpur in T.R. Case No. 44 of 1987 corresponding to Sambalpur Vigilance P.S. Case No. 5 of 1987 are hereby set aside. 9. The CRLA is disposed of accordingly.