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2019 DIGILAW 534 (ORI)

Suresh Kumar Singh v. State of Orissa

2019-08-20

D.DASH

body2019
JUDGMENT : D. Dash, J. 1. The appellant by filing this appeal has assailed the judgment of conviction and order of sentence dated 04.09.1993 passed by the learned Special Judge (Vigilance), Sambalpur in T.R. Case No. 12 of 1988. By the said judgment the appellant has been convicted for committing the offence under section 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (for short 'the Act') and has been sentenced to undergo rigorous imprisonment for one year. 2. Prosecution case in short is that on 05.04.1987, the complainant (P.W 3) went to the accused, who was then working as the Revenue Inspector attached to Revenue Circle Office, Sason and he submitted an application for issuance of a certificate as a landless person. It is stated that the accused had demanded bribe of Rs. 200/- from him. After some deliberation, the bribe amount was fixed at Rs. 100/- to be paid by the P.W. 3 to the accused. The complainant (P.W 3) then assured the accused to pay the bribe after 2 to 3 days. P.W. 3 having felt aggrieved of such demand, lodged a report at the Vigilance Police Station, Sambalpur. On the basis of that, a trap was organized and ultimately laid. The accused having accepted a bribe of Rs. 100/- from P.W. 3 was caught at the spot. On completion of investigation, charge-sheet having been submitted, with the sanction as obtained, the accused faced the trial standing charged for commission of offence under sections 13(1)(d) read with section 13(2) of the Act. The plea of the accused is that of denial. It is his further case that as demanded by P.W. 3, he had declined to issue the certificate instantly, without holding an inquiry in that regard and, therefore, P.W. 3 having failed in his attempt of getting the certificate upon presentation of the application, lodged the complaint stating the falsehood. 3. In the trial, the prosecution has examined six witnesses as against one from the side of the defence. As already stated, P.W. 3 is the complainant and P.W. 5 is the accompanying witness. P.W. 1 was a member of the trap party, then posted as Additional Commercial Tax Officer, Sambalpur whereas P.W. 2 is the person who has scribed the F.I.R. (Ext. As already stated, P.W. 3 is the complainant and P.W. 5 is the accompanying witness. P.W. 1 was a member of the trap party, then posted as Additional Commercial Tax Officer, Sambalpur whereas P.W. 2 is the person who has scribed the F.I.R. (Ext. 13) and had written the application for grant of certificate to the P.W. 3 as landless person, P.W 4 is the Sanctioning Authority. The Investigating Officer of the case has been examined at the end as P.W. 6. The sole defence witness, i.e. D.W. 1 is the peon then attached to the office of the accused, working as the Revenue Inspector, Sason. From the side of the prosecution, the F.I.R. (Ext. 13), seizure lists and other contemporaneous documents prepared and collected in course of investigation have been proved. 4. The trial court upon examination of evidence on record and their evaluation has come to conclude that the accused had demanded the bribe from P.W. 3 for the purpose of issuing certificate as a landless person and while handing over the said certificate had accepted the bribe of Rs. 100/- from that P.W. 3. Having held so, this accused has been found guilty for commission of offences as aforesaid and accordingly he has been sentenced. 5. Learned counsel for the appellant submits that the finding of the trial court is based upon the presumption which had been drawn applying the provision of section 20 of the Act. According to her, in the absence of the proof of demand of bribe by this accused, it is not permissible in the eye of law to raise the presumption available under section 20 of the Act and that being the error committed by the court below, the finding of guilt recorded against the accused cannot be sustained. Referring to the evidence on record, she contends that recovery of the so-called bribe money has not been directly made from the accused and it has been taken from the table. It is submitted that when the evidence tendered by the prosecution witnesses, mainly, P.W. 3 and 5 do not tally with one another that the said money had been kept by P.W. 3 on the table as per the direction of the accused, the recovery of the amount from the table cannot lead to say that it had been so kept in token of acceptance of the bribe by the accused. In support of the contentions, she has placed reliance on the following decisions:- (i) Krishan Chander vs. State of Delhi (2016 Cri LJ 1079); (ii) V. Venkata Subbarao vs. State; ((2006) 13 SCC 305); (iii) State of Kerala vs. C.P Rao ( (2011) 6 SCC 450 ); and (iv) Banarasi Das vs. State of Haryana; ( (2010) 4 SCC 450 ) 6. Mr. S.K. Das, learned Standing Counsel for the Vigilance Department submits all in favour of the finding returned by the trial court holding the accused guilty for commission of offence under section 13(1)(d) read with section 13 of the Act. According to him, the evidence of P.W. 3 and 5 are clear on the score that pursuant to the demand made by the accused, the money had been paid and that being kept on the table in the office of the accused as per his direction, the recovery of the same from the table has to be taken towards the acceptance of the said bribe by the accused and under the circumstance, the accused cannot escape in saying that the recovery being not directly from him, there is no proof as to the acceptance of bribe on his part. He further submits that the evidence of P.W. 3 finds ample corroboration on material particulars from the evidence of P. W. 5 as also other witnesses associated in the process of preparation of the trap and who have also joined in the post trap operation. He thus submits that the appeal sans merit. He has referred to the following decisions in order to provide support to his counter submission. (i) State of A.P. vs. R. Jeevaratnam ( AIR 2005 SC 4095 ); (ii) State of A.P. vs. P. Venkatesh ((2015)61 OCR (SC) 431); (iii) State of Bihar Vrs. Basawan Singh ( AIR 1958 SC 500 ); (iv) D. Velayutham Vrs. State ( AIR 2015 SC 2506 ); and (v) State of Uttar Pradesh Vrs. G.K. Ghose, ( AIR 1984 SC 1453 ) 7. Before going to address the rival submission in judging the sustainability of finding of conviction, as has been returned by the trial court, the settled positions of law as culled out of the above cited decisions being read carefully, have to be kept in mind. The demand and acceptance of demand of bribe by the accused is a condition precedent to constitute an offence. The demand and acceptance of demand of bribe by the accused is a condition precedent to constitute an offence. The statutory provision under section 20 of the Act can only be dislodged by the accused when he brings on record some evidence either direct or circumstantial that money was accepted other than for the motive or reward as stipulated under section 7 of the Act. When some explanation is offered, the court is obliged to consider the same. The consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond reasonable doubt. The two important aspects are that:- (i) there must be acceptance in the sense that the accused has obtained the illegal gratification; (ii) mere demand by, itself, is not sufficient to establish the offence. So the factum of acceptance plays very important role. When the currency notes are not recovered from the person of the accused or from his exclusive keeping but from some other place and the accused offers an explanation that it was put without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that money has been put at that place in order to satisfy the demand of illegal gratification. 8. The trial court, on evaluation of evidence, has come to the conclusion that the sequence of events as narrated by P.W. 5 goes to show that the accused made no demand of the tainted money from P.W. 3 but the latter, suo motu placed the currency note on the table. This although has not been so indicated, is with reference to the date and time of laying the trap. So, the question remains for consideration as to whether the money was placed by the P.W. 3 on the table in pursuance of the demand said to have been made by the accused on 04.04.1987. The trial court has thus not accepted the evidence of the prosecution that at that very time when P.W. 3 went and received the certificate, the bribe of Rs. 100/- had been demanded by the accused. The trial court has thus not accepted the evidence of the prosecution that at that very time when P.W. 3 went and received the certificate, the bribe of Rs. 100/- had been demanded by the accused. So this payment is to meet the demand of bribe advanced during the first meet of P.W. 3 with the accused with the application for issuance of certificate in his favour as a landless person to enable him to avail subsidy for establishing a bio-gas plant. P.W. 3 has deposed that on 04.04.1987 when he had been to office, first of all the accused demanded a sum of Rs. 200/- as bribe for the certificate and that demand was subsequently modified by reduction to Rs. 100/- It has been stated that being aggrieved by that, P.W. 3 went to the vigilance office and orally reported the matter which was reduced into writing vide Ext. 13 and he was asked by the vigilance people to come on the following day at about 5 A.M.. However, the fact remains that Ext. 13 being written by P.W. 2 had been presented to Superintendent of Police, Vigilance on 05.04.1987 and that being sent to the Inspector, Vigilance (P.W. 6), case has been registered. Accordingly, he with P.W. 5 went to the office. This P.W. 3 is not stating as to whether he had been to the vigilance office on that very day, i.e., on 04.04.1987, or on the next day. The-trap was laid on 06.04.1987. It has been stated by P.W. 3 that having arrived at the spot, he called the accused, who came after five minutes to the office and demanded bribe from him and then he told him to keep the money on the table. P.W. 5, the accompanying witness has stated that the accused demanded the bribe from P.W. 3 and both of them went inside the office room, then P.W. 3 kept the currency notes on the table. It is stated by the P.W. 3 that when the accused arrived in the office, he handed over the certificate (Ext. 10) to him and then demanded the bribe money whereas P.W. 5 is not stating that accused came, handed over the certificate and thereafter demanded the bribe. During cross-examination, he has stated that the moment they arrived, P.W. 3 asked for the certificate and accused prepared the certificate and handed it over to him. 10) to him and then demanded the bribe money whereas P.W. 5 is not stating that accused came, handed over the certificate and thereafter demanded the bribe. During cross-examination, he has stated that the moment they arrived, P.W. 3 asked for the certificate and accused prepared the certificate and handed it over to him. The Investigating Officer (P.W. 6) has seized the certificate granted by the accused and that is in the name of the wife of the P.W. 3. It is not the case of the prosecution that certificate for the wife of P.W. 3 was the subject matter. The seizure list, Ext. 3 reveals that the same had been seized on production by P.W. 3. In the column meant to indicate the circumstances of the seizure, it has been mentioned that at that time of production of the certificate for its seizure, P.W. 3 stated that after payment of the bribe money, the accused granted the certificate that day, meaning 06.04.1987, P. W. 1 the Additional C.T.O. has deposed that P.W. 3 produced a certificate in the name of his wife which had been issued to him just sometime before and immediately thereafter accused accepted the bribe money. This part of his evidence is wholly contrary to what finds mention in the very seizure list (Ext. 3) to which he is also a signatory. The very case of the prosecution is that P.W. 3 had gone to get a certificate showing that he is a landless person and that is what it has been mentioned in the F.I.R. (Ext. 13). It has also been so stated by P.W. 3 that he had approached the accused to give a certificate to the effect that he had no land to his credit. The application for issuance of certificate has been admitted in the evidence and marked as Ext. 12. It shows that he had asked the certificate to be granted in his favour so that he would be getting subsidy for construction of a biogas plant. As already stated the certificate (Ext. 10) seized is in the name of the wife of P.W. 3 that too, it is dated 05.04.1987 and the application is dated 04.04.1987. When P.W. 3 states to have orally reported the matter before police without stating as to whether it was reported on 04.04.1987 or on the next day, the F.I.R. (Ext. As already stated the certificate (Ext. 10) seized is in the name of the wife of P.W. 3 that too, it is dated 05.04.1987 and the application is dated 04.04.1987. When P.W. 3 states to have orally reported the matter before police without stating as to whether it was reported on 04.04.1987 or on the next day, the F.I.R. (Ext. 13) appears to be dated 05.04.1987 and there is a scoring in the formal F.I.R. as to the date and time of the occurrence to the effect that 05.04.1987, 8 P.M. being scored 04.04.1987 has been written without putting the time or as to its time of receipt. The scribe of the F.I.R. has been examined as P.W. 2 who is also the scribe of the application given by the accused. He has stated that P.W. 3 after taking the application left the place and again came after sometime and told about the demand of bribe made by the accused. So, he requested him to write an application for him to be given to the Vigilance Department about the illegal demand of bribe by the accused. It is stated that on the next date, he scribed the application. He has stated that-P.W. 3 came on the next day and got Ext. 13 scribed. P.W. 5 further stated that he had signed in the diary as told by the accused in respect of the certificate and thereafter P.W. 3 brought the money from his pocket and then put the same on the table. Thereafter he came away and gave the signal. The seizure list with regard to the recovery of the so-called tainted money is Ext. 5. It is indicated in the circumstances of seizure that accused replied to have not accepted any money and P.W. 5'stated to have kept the currency notes on the working table as per his direction. Admittedly, the accused till the seizure had not touched those currency notes which is fortified from the fact that his hand wash being taken, the colour did not turn pink. A suspicion touching upon the acceptability of the evidence as to putting of the currency notes on the working table of the accused arises when none is stating that it had been kept in such a place that it would not attract the notice of others and it was to the sight of all. A suspicion touching upon the acceptability of the evidence as to putting of the currency notes on the working table of the accused arises when none is stating that it had been kept in such a place that it would not attract the notice of others and it was to the sight of all. It runs against the normal conduct of a person demanding bribe and accepting it to direct the giver to put it in this way that its likely to attract notice of others whose access to the office at any time is expected being not. restricted. Next, when it had already been stated by P.W. 3 and 5 that as per the direction of the accused, P.W. 3 had placed the currency notes on the table and P.W. 3 and 5 do not state that accused had ever touched those, there was absolutely no necessity for P.W. 6, the Investigating Officer to again take the hand wash of the accused that too when P.W. 6 is clearly stating that then accused was sitting on his chair and P.W. 3 was standing and he seized the tainted money from the table as provided by P.W. 3. With the above evidence tendered by the prosecution, the defence has examined the peon of the office as D.W. 1 who has said that on 04.04.1987, the accused had never demanded the bribe. Under the circumstance, the trial court's view that there has been failure on the part of the accused to provide any explanation as to how the tainted money was recovered from his table is of no significance as he was under no obligation to do when the evidence on record do not go to establish beyond reasonable doubt that it had been kept on the table by P.W. 3 as per the direction of the accused towards the demanded bribe. 9. In view of the discussion of the evidence as above, the finding of the trial court that the accused has committed offence under section 13(1)(d) read with section 13(2) of the P.C. Act cannot be sustained. Accordingly, the judgment of conviction and order of sentence impugned in this appeal are liable to be set aside. 10. In the result, the appeal succeeds and the judgment of conviction and order of sentence dated 04.09.1993 passed by learned Special Judge, (Vigilance), Sambalpur are set aside. Accordingly, the judgment of conviction and order of sentence impugned in this appeal are liable to be set aside. 10. In the result, the appeal succeeds and the judgment of conviction and order of sentence dated 04.09.1993 passed by learned Special Judge, (Vigilance), Sambalpur are set aside. The bail bonds executed by the appellant (accused) shall stand discharged.