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2021 DIGILAW 426 (ORI)

Sanatan Dash v. State of Odisha (Vig. )

2021-10-21

S.K.SAHOO

body2021
JUDGMENT : S.K. SAHOO, J. 1. The appellant Sanatan Dash faced trial in the Court of learned Special Judge, Vigilance, Bhubaneswar in T.R. Case No. 26 of 1993 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 on 03.02.1992 being a public servant employed as Accountant in the office of the Executive Engineer, Electrical, Keonjhar, he accepted an amount of Rs. 500/- (rupees five hundred) from the complainant Satrughna Sahu (PW-1) as gratification other than legal remuneration as a motive for doing an official act i.e. passing his house rent bill amounting to Rs. 10,216/- (rupees ten thousand two hundred sixteen) in exercise of his official function and thereby obtained pecuniary advantage to the extent of Rs. 500/- from PW-1 by corrupt or illegal means and/or by otherwise abusing his position as public servant. The learned trial Court vide impugned judgment and order dated 08.12.2003 found the appellant guilty of the offences charged and sentenced him to undergo R.I. for two years and to pay a fine of Rs. 1,000/- in default, to undergo R.I. for six months under section 13(2) of the 1988 Act and further to undergo R.I. for one year and to pay a fine of Rs. 1,000/- in default, to undergo R.I. for six months under section 7 of the 1988 Act and both the substantive sentences of imprisonment were directed to run concurrently. 2. The factual matrix of the prosecution case, as per the written report presented by PW-1 Satrughan Sahu before Sri. Nrusingha Charan Nayak (PW-6), Inspector in-charge, Vigilance, Keonjhar on 01.02.1992 is that he had a house at Telkoi in the district of Keonjhar, a portion of which had been let out to Electric Department for the last nine years to run the Electric Section Office. From 01.08.1986, the house rent was outstanding. PW-1 came to know from one clerk Sinha Babu in the office of the Executive Engineer that order had been passed to pay the house rent at the rate of Rs. 122/- per month from 01.08.1986 till 30.06.1990 and at the rate of Rs. 249/- per month from 01.07.1990 to 30.11.1991 totaling to Rs. 10,216/-. PW-1 came to know from one clerk Sinha Babu in the office of the Executive Engineer that order had been passed to pay the house rent at the rate of Rs. 122/- per month from 01.08.1986 till 30.06.1990 and at the rate of Rs. 249/- per month from 01.07.1990 to 30.11.1991 totaling to Rs. 10,216/-. He met the appellant, who was the Accountant in that office three to four times to get his outstanding house rent dues, but appellant used to inform him that the money was not available. PW-1 then met the Executive Engineer on 22.01.1991 in that connection, who informed that he had already passed the bill and asked him to meet the appellant. PW-1 met the clerk Sinha Babu, who after consultation with the appellant told him to pay Rs. 800/- after which the bill would be passed and draft would be issued in his favour. PW-1 met the appellant and expressed his inability to pay such an amount. The appellant told him that they were taking Rs. 600/- from each person with whom agreement was entered into and finally told him that unless Rs. 500/- was given, the draft would not be issued. The appellant told PW-1 to come ready on 03.02.1992 with cash of Rs. 500/-. From an office peon, PW-1 could able to know that his file was lying with Sinha Babu and after payment of bribe money, the appellant would bring the file and make payment to him. It is further stated in the written report that PW-1 agreed to pay the bribe amount of Rs. 500/- to the appellant on 03.02.1992 against his will. 3. On receipt of such written report, Inspector of police, Vigilance, Keonjhar submitted it to Superintendent of Police, Vigilance, Balasore Division, Cuttack for registration of the case and necessary direction, who in turn directed the officer-in-charge, Vigilance police Station, Balesore Division, Cuttack to register the case and PW-6 was directed to detect the case by laying a trap and to investigate the case. Accordingly, Balasore Vigilance P.S. Case No. 02 dated 01.02.1992 was registered under section 7 and section 13(2) read with section 13(1)(d) of the 1988 Act. 4. PW-6 issued requisitions to S.D.V.O. Keonjhar and Asst. Controller, Weights and Measure, Keonjhar on 01.02.1992 to depute officers to assist him in the investigation. Accordingly, Balasore Vigilance P.S. Case No. 02 dated 01.02.1992 was registered under section 7 and section 13(2) read with section 13(1)(d) of the 1988 Act. 4. PW-6 issued requisitions to S.D.V.O. Keonjhar and Asst. Controller, Weights and Measure, Keonjhar on 01.02.1992 to depute officers to assist him in the investigation. On 03.02.1992 in the morning hours, PW-6 along with vigilance staff, Harihar Mohapatra (PW-2), Prafulla Kumar Acharya (PW-3) and Prahallad Raut, Sub-Asst. Fooder of the office of C.D.V.O. Keonjhar assembled in the PWD. Inspection Bungalow, Keonjhar. PW-1 also arrived there, who was introduced to other witnesses. PW-1 narrated his grievances against the appellant to the person assembled there. PW-2 Harihar Mohapatra was selected as overhearing witness. PW-1 produced five currency notes of one hundred rupee denomination, the numbers of which were noted down in a piece of paper by PW-3 Prafulla Kumar Acharya. On the instruction of PW-6, constable Narayan Maharana prepared sodium carbonate solution, treated the currency notes with phenolphthalein powder. The hand wash of Narayan Maharana in Sodium Carbonate solution was taken which turned pink. A sample of the hand wash was kept in a small bottle, which he marked as “A.” The constable Narayan Maharana kept the tainted currency notes in a four folded white paper and placed it in the left side chest pocket of PW-1. PW-2 was instructed to accompany PW-1 to the office of Executive Engineer, Electrical, Keonjhar, hear the conversation between the appellant and PW-1 and after demand and receipt of money by the appellant, to give a signal by rubbing his forehead with his right hand. A preparation report (Ext.2) was typed out by the official vigilance steno in the PWD. I.B. on the dictation of PW-6 who read out such report after its completion to all the persons gathered in the I.B. and also interpreted the same in Oriya. The witnesses including PW-1 and PW-2 put their signatures on each page of Ext.2. A copy of Ext.2 was handed over to PW-3 to compare the numbers of currency notes after detection. At about 11.10 a.m. the trap party proceeded to the office of Executive Engineer, Electrical, Keonjhar. PW-1 and PW-2 entered into the office of Executive Engineer and the other members of the trap party took positions near the gate and inside the premises as per their convenience. At about 11.10 a.m. the trap party proceeded to the office of Executive Engineer, Electrical, Keonjhar. PW-1 and PW-2 entered into the office of Executive Engineer and the other members of the trap party took positions near the gate and inside the premises as per their convenience. At about 11.25 a.m. PW-2 gave the pre-arranged signal coming out of the office room of the Executive Engineer. Thereafter, PW-6 along with other witnesses entered inside the office room of the Executive Engineer. PW-6 found PW-1 standing beside the appellant in the office hall. PW-1 pointed out to the appellant to the members of trap party and told that he had given Rs. 500/- to the appellant. PW-6 and A.S.I. R.N. Biswal caught hold of both the hands of the appellant below his wrists. PW-6 gave his identity and the identity of others accompanying him. The wash of the fingers of both the hands of the appellant was taken in sodium carbonate solution, which turned to pink, sample of which was kept in separate bottle and marked as “B.” PW-6 asked the appellant to bring out the money which he had received from PW-1. The appellant brought out five currency notes of one hundred rupee denomination from the backside pant pocket. As per the instruction of PW-6, PW-3 took those currency notes from the hands of the appellant and compared the numbers with the numbers of currency notes noted down in the preparation report (Ext.2), copy of which was with him. After comparison, PW-3 declared the numbers noted down in the preparation report (Ext.2) tallied with the numbers of currency notes which the appellant had produced before him. PW-6 seized the currency notes in presence of the witnesses and prepared the seizure list (Ext.14). He again took wash of right hand fingers of the appellant after he brought out the tainted money from the backside pocket of his pant with sodium carbonate solution, which turned to pink, a sample of that solution was kept in a small bottle which he marked as “C.” The hand wash of PW-3 was also taken in sodium carbonate solution which turned to pink. A sample of that solution was kept in a small bottle which he marked as “D.” The wash of backside pant pocket of the appellant was also taken in sodium carbonate solution, which turned to pink and the sample of that solution was kept in a small bottle which was marked as “E.” PW-6 seized the copy of preparation report (Ext.2) from PW-3 in presence of the witnesses and prepared seizure list (Ext.8). He also seized the four folded white paper in which the tainted money was kept from PW-1 and prepared the seizure list (Ext.9). He prepared a sketch map of the office of Executive Electrical Division, Keonjhar (Ext.18). After collecting sample in bottles which he marked as ‘A’ to ‘E’ he took signatures of witnesses on separate white papers and wrapped each of the bottles with those papers, tied the bottles with thread and sealed the mouth of each bottle by using lac and impression of brass seal (M.O.I) of Asotosh Das, the then S.P. Vigilance was given on the lac of each bottle. PW-6 seized the house rent register, debit voucher, house rent bill, file bearing collection number on production by Rajendra Prasad Sinha, clerk in the office of the Executive Engineer in presence of the witnesses and prepared the seizure list (Ext.4). He seized the sample bottle marked as ‘E’ and grey colour full pant of the appellant in presence of the witnesses as per the seizure list (Ext.11). He also seized the sample bottles marked as ‘C’ and ‘D’ in presence of witnesses as per seizure list vide Ext.13 and Ext.12. He seized the sample bottle marked ‘B’ in presence of witnesses as per seizure list (Ext.15). Detection report (Ext.3) detailing the process of detection was typed on the dictation of PW-6 by the official vigilance steno inside the office of Executive Engineer. PW-6 read over the detection report (Ext.3) to all the persons and witnesses including the appellant. The signatures of witnesses were also taken on each page of that report. He gave a copy of detection report to the appellant, who acknowledged it by giving his endorsement and signature. PW-6 arrested the appellant and released him on bail. He also examined the witnesses. The signatures of witnesses were also taken on each page of that report. He gave a copy of detection report to the appellant, who acknowledged it by giving his endorsement and signature. PW-6 arrested the appellant and released him on bail. He also examined the witnesses. The sample bottles marked as “A, B, C, D and E” were sent by S.P. Vigilance, B.D. Cuttack to the Director, State F.S.L. Rasulgarh, Bhubanswar for chemical analysis of their contents and opinion. The Chemical Examination Report (Ext.17) was received which showed that phenolphthalein was detected in the liquid contained in the glass bottles. PW-6 produced detailed report of the case, seizure lists, copy of preparation and detection report, copy of F.I.R. before PW-4, the Financial Advisor and Chief Accounts Officer of O.S.E.B. at Bhubaneswar who discussed in detail regarding the case with PW-6 and accorded sanction to launch prosecution against the appellant. After obtaining sanction order, PW-6 submitted charge-sheet on 21.10.1992 against the appellant under section 7 and section 13(2) read with section 13(1)(d) of the 1988 Act. 5. The defence plea of the appellant was one of complete denial of the occurrence and it was pleaded that the complainant (PW-1) requested him to prepare the house rent bill at the enhanced rate of Rs. 400/- per month to which he declined for which PW-1 bore grudge against him as the distance between his house and the village of PW-1 was about 8 k.m. and the appellant being a nearby villager could not help him. It was also pleaded that on the date of incident, while he was working in his office in a standing position, PW-1 forcibly inserted money in his pant pocket and that he had not demanded any bribe money from him. 6. In order to prove its case, the prosecution examined six witnesses. PW-1 Satrughan Sahu is the complainant of the case who stated that Rs. 10,216/- was his due from the Electricity Department as arrear house rent. He met a clerk of the Electrical Divisional Office, Keonjhar, namely, one Sinha Babu and requested him to clear his dues, who told him that unless he spent something, he would not be able to get his dues for which he wrote the report (Ext.1) and presented it in the Vigilance Office on 01.02.1992. He met a clerk of the Electrical Divisional Office, Keonjhar, namely, one Sinha Babu and requested him to clear his dues, who told him that unless he spent something, he would not be able to get his dues for which he wrote the report (Ext.1) and presented it in the Vigilance Office on 01.02.1992. He again came to the Vigilance Office on 03.02.1992 and produced four hundred rupee currency notes and two fifty rupee currency notes before the Vigilance Officer, which were treated with some chemical powder. Those notes were kept in a white folded paper and returned back to him with instruction to give the currency notes to the appellant only on demand. Another person was asked to accompany him to see the transaction and give indication after acceptance of currency notes by the appellant. He along with the over hearing witness (PW-2) proceeded to the Electrical Divisional Office and he entered inside the office room of the appellant and PW-2 waited outside on the verandah. He gave the currency notes to the appellant. He further stated that without the consent of the appellant, he inserted the currency notes into his pant pocket and shortly thereafter the Vigilance Officers rushed in and challenged the appellant to have taken bribe. PW-1 told the Vigilance Officers that he had inserted the currency notes in the pocket of the appellant. The hand wash of the appellant was taken in some solution, which turned pink. The appellant thereafter brought out the currency notes from his pant pocket on being asked by the Vigilance Officer and give those to one of the members of the raiding party, who compared numbers noted down earlier in the Inspection Bungalow and both tallied. He was declared hostile by the Special Public Prosecutor for not supporting the prosecution case fully and cross-examined. PW-2 Harihar Mohapatra was working as a clerk in the Legal Metrology, Weights and Measure Department, Keonjhar and he acted as an over hearing witness and he is also a seizure witness. He stated that on the direction of Asst. Controller, Weights and Measures, he went to the Vigilance Office on 02.02.1992, where he was instructed to come on the next day to PWD. Inspection Bungalow at Keonjhar. On 03.02.1992, he went to the PWD. Inspection Bungalow at about 7.00 a.m. where PW-1 told all of them that the appellant was demanding Rs. Controller, Weights and Measures, he went to the Vigilance Office on 02.02.1992, where he was instructed to come on the next day to PWD. Inspection Bungalow at Keonjhar. On 03.02.1992, he went to the PWD. Inspection Bungalow at about 7.00 a.m. where PW-1 told all of them that the appellant was demanding Rs. 500/- from him for payment of arrear bill and the date was fixed to 03.02.1992 to give such money. PW-1 produced currency notes of Rs. 500/- which were treated with chemical powder and kept in a paper and given to PW-1 with instruction to give the notes to the appellant and he was instructed to accompany PW-1, hear the conversation between him and the appellant and give signal after acceptance of money by the appellant. He further stated that he along with PW-1 entered into the office building of Electrical Executive Engineer and PW-1 entered inside the room of the appellant and he stood at the door. The appellant enquired from PW-1 whether he had brought the money and PW-1 answered it in affirmative and handed over the money to the appellant, who received and kept them in his left side pant pocket. PW-2 came out and gave signal after which the vigilance staff and others came there. By that time, PW-1 and the appellant were standing in the hall and PW-1 pointed out to the appellant that he had received the money. Both the hands of the appellant were caught and he was taken into his room and his hand wash was taken which turned pink. The appellant brought out the money from his pocket on being asked and gave those to PW-3 who verified the numbers with the numbers noted earlier and the hand wash of the appellant was again taken and the colour became pink and the hand wash of PW-3 was also taken. He is a witness to the seizure of different seizure lists. PW-3 Prafulla Kumar Acharya was the A.D.V.O. Keonjhar who stated that on 02.02.1992, he had been to Vigilance Office as per the direction of C.D.V.O. and he was instructed to come on the next day. On 03.02.1992, he went to the Inspection Bungalow where PW-1 told them that the appellant was demanding Rs. 500/- to give him the arrear house rent. On 03.02.1992, he went to the Inspection Bungalow where PW-1 told them that the appellant was demanding Rs. 500/- to give him the arrear house rent. He corroborated PW-2 regarding the events took place thereafter and stated that a report detailing the preparation made in the Inspection Bungalow was prepared, which he had signed and a copy of the report was given to him. He further stated that PW-1 along with PW-2 proceeded to the office of the Electrical Executive Engineer. At about 11.00 a.m. they received signal from PW-2 and when they came inside the office, PW-1 told them that he had given the money to the appellant which he had kept in the right side back pocket of his pant. The hand wash of the appellant was taken and PW-3 compared the numbers of the notes which the appellant had produced from his pant pocket with the numbers already noted down and both tallied and his hand wash was also taken. He is also a witness to the seizure of different seizure lists. PW-4 Amulya Kumar Tripathy was the Financial Advisor and Chief Accounts Officer of O.S.E.B. Bhubaneswar who accorded sanction for prosecution of the appellant. PW-5 Pradeep Kumar Samantaray was the Scientific Officer, State F.S.L. Bhubaneswar who on chemical analysis of the sample bottles found presence of phenolphthalein in each of them. PW-6 Nrusingha Charan Naik was the Inspector of Police, Vigilance, Keonjhar, who is the Investigating Officer and he submitted charge-sheet. 7. The prosecution exhibited twenty documents. PW-5 Pradeep Kumar Samantaray was the Scientific Officer, State F.S.L. Bhubaneswar who on chemical analysis of the sample bottles found presence of phenolphthalein in each of them. PW-6 Nrusingha Charan Naik was the Inspector of Police, Vigilance, Keonjhar, who is the Investigating Officer and he submitted charge-sheet. 7. The prosecution exhibited twenty documents. Ext.1 is the written report, Ext.2 is the preparation report, Ext.3 is the detection report, Ext.4 is the seizure list of documents seized from the office of Executive Engineer, Ext.5 is the seizure list of service book of the appellant, Ext.6 is the seizure list of attendance register, Ext.7 is the seizure list of savings pass book, Ext.8 is the seizure list of copy of preparation report, Ext.9 is the seizure list of wrapping paper, Ext.10 is the seizure list of other money of the appellant, Ext.11 is the seizure list of pant of the appellant, Ext.12 is the seizure list of hand wash of PW-3, Ext.13 is the seizure list of hand wash of the appellant, Ext.14 is the seizure list of tainted money, Ext.15 is the seizure list of hand wash of the appellant, Ext.16 is the sanction order, Ext.17 is the chemical examination report, Ext.18 is the spot map, Ext.19 is the house rent bill for Rs. 10,216/- and Ext.20 is the debit cash voucher for Rs. 10,216/-. The prosecution proved seven material objects. M.O.I is the brass seal, M.O.II to M.O.VI are the sample bottles and M.O.VII is the packet containing tainted money. 8. The appellant examined Niranjan Bebarta as DW-1, who was working as Dafadar attached to the office of Keonjhar Electrical Division in which the appellant was the Accountant. He stated that PW-1 had rented his house in which the Electrical Section Office at Telkoi was functioning and at about 11.25 a.m. he heard raised voices from the room of the appellant and went there and found the appellant searching for some files kept in the rack and PW-1 was offering him something which he was declining. He stated that PW-1 had rented his house in which the Electrical Section Office at Telkoi was functioning and at about 11.25 a.m. he heard raised voices from the room of the appellant and went there and found the appellant searching for some files kept in the rack and PW-1 was offering him something which he was declining. Suddenly PW-1 inserted something in the backside pant pocket of the appellant and fled away and then Vigilance police rushed into the room of the appellant and challenged that he had taken bribe from PW-1 to which the appellant declined and the appellant told that PW-1 forcibly inserted the money in his back side pant pocket in spite of his refusal to accept the same. 9. The learned trial Court after assessing the evidence on record came to hold that there is no doubt that the appellant was a public servant. It was further held that the appellant as an Accountant, had a role in passing the arrear house rent bill of PW-1, which was in discharge of his duty and for that he had received gratification of Rs. 500/- from PW-1 by abusing his position as a public servant. It was further held that the appellant received gratification for passing the arrear house rent bill of PW-1 and the presumption under section 20(1) of the 1988 Act would be drawn against him that he had accepted for himself gratification other than legal remuneration as a motive or reward to do his duty in the exercise of his official functions in favour of PW-1. It was further held that the evidence of DW-1 that he had seen that PW-1 was offering something to the appellant, which he was denying and then suddenly PW-1 inserted something in the backside pant pocket of the appellant and fled away is apparently false, which was not even the stand of the appellant rather his stand was that PW-1 at first offered money to him, which he denied and thereafter, PW-1 suddenly inserted money inside his backside pant pocket. It was further held that there is no specific material in the case from which it could be inferred that PW-4 was not competent to pass the order sanctioning of prosecution against the appellant and further held that the prosecution has ably proved the case against the appellant beyond all reasonable doubt. 10. Mr. It was further held that there is no specific material in the case from which it could be inferred that PW-4 was not competent to pass the order sanctioning of prosecution against the appellant and further held that the prosecution has ably proved the case against the appellant beyond all reasonable doubt. 10. Mr. Ramani Kanta Pattnaik, learned counsel appearing for the appellant contended that during course of trial, the complainant (PW-1) has not supported the prosecution case on material aspects and he was declared hostile by the prosecution. The complainant stated that Sinha Babu had demanded money from him and he had got the money to pay it to Sinha Babu. He further stated that the appellant never demanded money from him prior to lodging of the F.I.R. or on the date of detection. When the appellant was engaged in his official work, he inserted currency notes into his back side pant pocket without his knowledge and when the appellant became conscious of it, he objected and resisted his attempt. It is argued that so far as the positive reaction of phenolphthalein test of both the hand wash of the appellant is concerned, in view of the evidence of PW-1 that the appellant resisted his attempt to insert currency notes into his pocket, the possibility of phenolphthalein power coming into the contact of the fingers of the appellant cannot be ruled out. It is further contended that the evidence with regard to recovery of tainted money from the backside pant pocket of the appellant is discrepant in nature. PW-2 has stated that it was from left side pant pocket whereas PW-3 has stated it to be from right side pant pocket. PW-6 is totally silent about which side of the pant pocket of the appellant, the tainted money was recovered and therefore, the recovery of tainted money from the pant pocket should be viewed with suspicion. It is further argued that PW-6 being the trap laying officer is a highly interested witness and he should not have investigated the case and submitted charge-sheet which has caused serious prejudice to the appellant. It is further argued that the sanction order (Ext.16) accorded by PW-4 appears to have been issued in a mechanical manner without application of mind as he has referred to the draft sanction order sent by vigilance department and passed the order. It is further argued that the sanction order (Ext.16) accorded by PW-4 appears to have been issued in a mechanical manner without application of mind as he has referred to the draft sanction order sent by vigilance department and passed the order. The sanction order being defective, it goes to the root of the matter. It is further contended that Ext.20 clearly reveals that a cheque bearing No. 692536 had already been paid to the complainant since 01.02.1992 and no work was pending with the appellant for making demand of bribe from the complainant on 03.02.1992. PW-6 has admitted that the bill for arrear amount was passed before the trap was laid and he had not seized any cheque duly signed in favour of PW-1. According to Mr. Pattnaik, since the evidence adduced by the prosecution is not reliable and cogent, benefit of doubt should be extended in favour of the appellant. Reliance was placed in the case of Satyananda Pani vs. State of Odisha (Vig.), (2017) 68 OCR 795. 11. Mr. Sanjay Kumar Das, learned Standing Counsel appearing for the Vigilance Department on the other hand supported the impugned judgment. It is his submission that even if the complainant has not supported the prosecution case, but in view of the other clinching materials available on record that the appellant demanded bribe money and accepted the same, which was also recovered from him coupled with the positive reaction of phenolphthalein test of both the hand wash of the appellant taken corroborates the acceptance of bribe money, the learned trial Court rightly held the appellant guilty of the offences charged. According to Mr. Das, all the relevant documents were placed before the sanctioning authority and after thorough discussion with the I.O. Ext.16 was issued and as such there is no defect in it. He relied upon the decisions of the Hon’ble Supreme Court in the cases of Vinod Kumar Garg vs. State, AIR 2020 SC 1797 , Vinod Kumar vs. State of Punjab, AIR 2015 SC 1206 , T. Shankar Prasad vs. State of Andhra Pradesh, (2004) 27 OCR (SC) 599 and Koli Lakhmanbhai Chanabhai vs. State of Gujarat, AIR 2000 SC 210 . 12. 12. 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-a-vis the standard of burden of proof on the prosecution would differ. The standard required for rebutting the presumption is tested on the anvil of preponderance of probabilities which is a threshold of a lower degree than proof beyond all reasonable doubt. 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. 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: Satyananda Pani (supra), Vinod Kumar Garg (supra), State of Punjab vs. Madan Mohan Lal Verma, AIR 2013 SC 3368 , State of Maharashtra vs. Dnyaneshwar, (2009) 44 OCR 425, Punjabrao vs. State of Maharashtra, AIR 2002 SC 486 , V. Sejappa vs. State, AIR 2016 SC 2045 , Panalal Damodar Rathi vs. State of Maharashtra, AIR 1979 SC 1191 and Mukhitar Singh vs. State of Punjab, (2016) 64 OCR (SC) 1016]. In the case of D. Velayutham vs. State, (2015) 12 SCC 348 , while discussing the evidenciary value of a decoy witness in a trap case, it is held as follows: “10. It would therefore be a derogation and perversion of the purpose and object of anticorruption law to invariably presuppose that a trap/decoy witness is an “interested witness” with an ulterior or other than ordinary motive for ensuring the inculpation and punishment of the accused. The burden unquestionably is on the defence to rattle the credibility and trustworthiness of the trap witness' testimony, thereby bringing him under the doubtful glare of the Court as an interested witness. The defence cannot be ballasted with the premise that Courts will, from the outset, be guarded against and suspicious of the testimony of trap witnesses.” Evidentiary value of decoy witness turned hostile: 13. In the case in hand, the decoy (PW-1) has not supported the case of the prosecution in material aspects and was declared hostile by the prosecution. Even though he has mentioned about the demand of Rs. 500/- by the appellant in the first information report, but in his evidence, he has categorically stated that the appellant never demanded money from him. Law is well settled 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 made in the F.I.R. [Ref: Madhusudan Singh vs. State of Bihar, AIR 1995 SC 1437 ]. In the case of Utpal Das vs. State of West Bengal, (2010) 46 OCR (SC) 600, it is held that the first information report does not constitute substantive evidence. Conviction cannot be based only on the allegation made in the F.I.R. [Ref: Madhusudan Singh vs. State of Bihar, AIR 1995 SC 1437 ]. In the case of Utpal Das vs. State of West Bengal, (2010) 46 OCR (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. PW-1 stated in the examination in-chief that without the consent of the appellant, he inserted the currency notes into his pant pocket and shortly thereafter the Vigilance Officers rushed in and challenged the appellant to have taken bribe. PW-1 further stated that the appellant denied to have taken any bribe. PW-1 further stated that he told the Vigilance Officers that he had inserted the currency notes in the pocket of the appellant. After PW-1 was declared hostile by the Special Public Prosecutor for not supporting the prosecution case, though his statement made in the F.I.R. and his previous statement before the I.O. were confronted to him but his positive statement that he inserted the currency notes into the pant pocket of the appellant without his consent was not challenged. In the cross-examination, he specifically stated that the appellant never demanded money from him either prior to the lodging of F.I.R. or on the date of detection and further stated that Sinha Babu demanded money from him and he had got that money to pay it to Sinha Babu. He clarified by saying in the cross-examination that when the appellant was engaged in his official work, he inserted currency notes into his back side pocket without his knowledge. He further stated that when the appellant became conscious of it, he objected and resisted his attempt to insert currency notes into his pocket. Therefore, from the evidence of PW-1, it is not established that the appellant demanded or accepted bribe money from PW-1 for passing his bill of arrear house rent. He further stated that when the appellant became conscious of it, he objected and resisted his attempt to insert currency notes into his pocket. Therefore, from the evidence of PW-1, it is not established that the appellant demanded or accepted bribe money from PW-1 for passing his bill of arrear house rent. In the case of Koli Lakhmanbhai Chanabhai (supra), 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. In the case of T. Shankar Prasad (supra), 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 creditworthy and act upon it. In the case of Vinod Kumar (supra), is held as follows: “38.....As we notice, the authorities in B. Jayaraj, (2014) 58 OCR (SC) 175 : 2014 (1) OLR (SC) 1014 and M.R. Purushotam, (2015) 61 OCR (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. Therefore the proposition, though industriously, presented by Mr. Jain that when Baj Singh, PW-5, the complainant, had turned hostile, the whole case of the prosecution would collapse is not acceptable and accordingly hereby rejected.” It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof. The portion of the evidence which is consistent with the case of the prosecution or defence and are admissible in law can be used by the prosecution or the defence. The evidence of PW-1 in the chief examination that he inserted the currency notes into the pant pocket of the appellant without his consent has remained unchallenged. The prosecution has not re-examined PW-1 even though in the cross-examination he has stated that Sinha Babu demanded money from him and he had got that money to pay it to Sinha Babu and that the appellant had never demanded money from him either prior to the F.I.R. or on the date of detection and that while the appellant was engaged in his official work, he inserted currency notes into his back side pant pocket without his knowledge. Section 138 of the Indian Evidence Act, 1872 clearly states that the re-examination shall be directed to the explanation of the matters referred to in the cross-examination. Therefore, if any ambiguity is cropped up during cross-examination of a witness or a witness stated completely contrary to what he has deposed in the chief-examination, it is nonetheless the duty of the prosecution to make a prayer before the learned trial Court for re-examination of such witness and to explain the matters. The object is to give an opportunity to reconcile the discrepancies, if any, between the statement made in the examination-in-chief and cross-examination or to explain any statement inadvertently made in cross-examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross-examination. The object is to give an opportunity to reconcile the discrepancies, if any, between the statement made in the examination-in-chief and cross-examination or to explain any statement inadvertently made in cross-examination or to remove any ambiguity in the deposition or suspicion cast on the evidence by cross-examination. On a careful scrutiny of the evidence of PW-1, I am of the humble view that even though he has been declared hostile by the prosecution, his evidence cannot be treated as effaced or washed off the record altogether but the portion of his evidence can be accepted to the extent it is found to be dependable and consistent with the defence plea. Evidence of PW-2 and PW-3 on demand and acceptance and discrepancies: 14. PW-2 who was the shadow witness has no doubt stated that the appellant enquired from the complainant (PW-1) whether he had brought money and the complainant answered affirmatively and handed over the money to the appellant and that the appellant accepted the same and kept it in his left side pant pocket, but in view of the evidence of PW-1 that he inserted the currency notes into the pant pocket of the appellant without his consent, the demand and acceptance part is very difficult to be accepted. PW-3 stated that the complainant (PW-1) disclosed that he had given money to the appellant, who after receiving the money had kept inside his right side back pocket of his pant. This statement runs contrary to the evidence of PW-1 who stated that he told the Vigilance Officers that he inserted the currency notes into the pocket of the appellant while the later was engaged in his official work. There are discrepancies in the evidence of PW-2 and PW-3 as to in which side of the back pant pocket of the appellant, the money was kept. PW-2 stated that the money was kept in the left side back pant pocket whereas PW-3 stated it to be in the right side. It is not clear which hand of the appellant was used in accepting the tainted money and whether he counted it or not. A person accepting money in left hand can easily keep it in the left side back pocket of his pant using left hand. It is not clear which hand of the appellant was used in accepting the tainted money and whether he counted it or not. A person accepting money in left hand can easily keep it in the left side back pocket of his pant using left hand. If he accepts money in right hand, normally he has to shift it to his left hand first and then he can keep it in the left side back pant pocket by using left hand. There is nothing on record as to from which side of back pant pocket of the appellant, the tainted money was recovered. The evidence of PW-6, the trap laying officer is also silent in that respect. Evidence relating to the occasion for making demand: 15. According to the prosecution case, the occasion arose for demanding bribe money was to pass the arrear house rent bill of the complainant amounting to Rs. 10,216/-. PW-1 specifically stated that he was entitled to recover Rs. 10,216/- as arrears of house rent and he met one Sinha Babu, a clerk of the Electrical Division Office at Keonjhar and requested him for clearance of his dues but he told him that he would not get his dues unless he spent something as bribe. Sinha Babu is neither a witness nor an accused in the case. Ext.20 is the debit cash voucher for payment of Rs. 10,216/- to PW-1 which had already been signed by the appellant and the officer-in-charge. PW-6 has admitted that the bill for arrear amount was passed before the trap was laid. Ext.20 dated 01.02.1992 clearly reveals that a cheque bearing No. 692536 was issued to the complainant. Neither the cheque in question was seized nor was the register relating to issuance of cheque seized. Had those documents been seized and produced in Court, it would have shown the date of preparation of the cheque and the date of its issuance. In this connection, I would also like to advert to the provisions contained in section 114(g) of the Indian Evidence Act, which are to the effect that if evidence which could have been produced, is not produced, the presumption would be that it would have gone against the party which withholds it. It would be reasonable to draw such inference in this case. It would be reasonable to draw such inference in this case. When the documentary evidence indicates that prior to the date of trap, the bill for arrear amount was passed, the debit cash voucher for payment in favour of the complainant had already been signed by the appellant, the cheque in favour of the appellant had been prepared and the prosecution has failed to prove the documentary evidence relating to the actual date of issuance of the cheque in favour of the complainant, a reasonable doubt is created relating to pendency of any work with the appellant for making demand of bribe from the complainant on 03.02.1992. Analysis of defence plea: 16. The defence plea of the appellant is that he had not demanded any bribe money from PW-1 and on the date of incident, while he was working in his office in a standing position, PW-1 forcibly inserted money in his pant pocket. Such a plea gets support from the evidence of PW-1. DW-1 who was working as Dafadar in the office of Keonjhar Electrical Division has also stated that when he came to the office room of the appellant hearing raised voice, he noticed the appellant was searching for some file kept in the rack and PW-1 inserted something in the backside pant pocket of the appellant. No doubt, the phenolphthalein was detected during the chemical test of both the hand wash of the appellant taken together and it indicates that the appellant’s hands came in contact with the tainted money but from the findings of such report, it cannot be inferred that the appellant accepted the bribe money voluntarily. In view of the evidence of PW-1 that the appellant resisted his attempt to insert currency notes into his pant pocket, the possibility of phenolphthalein power coming into the contact of the fingers of the appellant cannot be ruled out. The learned Trial Court seems to have not considered the defence plea of the appellant on the touchstone of preponderance of probability and whimsically rejected it holding the same to be apparently false. While judging the veracity of witnesses, there cannot be any different yardstick for judging the prosecution witnesses or defence witnesses and the defence witnesses are to be given equal treatment with the prosecution witnesses. While judging the veracity of witnesses, there cannot be any different yardstick for judging the prosecution witnesses or defence witnesses and the defence witnesses are to be given equal treatment with the prosecution witnesses. The appellant was not supposed to establish his defence plea by proving it beyond reasonable doubt like the prosecution but by preponderance of probability. 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. A false plea set up by the defence can at best be considered as an additional circumstance against the accused provided that the other evidence on record unfailingly point towards his guilt. Trap laying officer is the investigating officer: 17. Adverting to the contention raised by the learned Counsel for the appellant that PW-6 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 i.e. 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. In the fairness of things, the role/task of trap laying officer should end immediately after the trap is over and the investigation after a successful trap is required to be conducted by another officer higher in rank than the trap laying officer. In the fairness of things, the role/task of trap laying officer should end immediately after the trap is over and the investigation after a successful trap is required to be conducted by another officer higher in rank than the trap laying officer. However, unless any prejudice is shown or any glaring infirmity or illegality in the investigation is established, the prosecution case cannot be discarded merely on that score. Whether sanction order (Ext.16) is defective: 18. The I.O. (PW-6) has stated that on 30.09.1992, he produced detailed report of the case along with other documents like seizure lists, copies of preparation and detection report, copy of F.I.R. before PW-4 and discussed with him in detail regarding the case and after obtaining the sanction order, he submitted charge-sheet. PW-4 has also stated that the I.O. came twice or thrice for having discussion with him and he perused the relevant documents sent by the vigilance department along with C.D. and had discussion with the I.O. and after application of mind, he was satisfied and accorded sanction to launch prosecution against the appellant. In the cross-examination, PW-4 has stated that he might have referred to the draft sanction order sent by vigilance department. Sanction under section 19 of the 1988 Act is necessary to see that a public servant is not entangled in a frivolous and false case. Sanction insulates a public servant from a false or vexatious or frivolous prosecution. The exercise of power under section 19 is not an empty formality since the Government or for that matter the sanctioning authority is supposed to apply its mind to the entire material and evidence placed before it and on examination thereof reach conclusion fairly, objectively and consistent with public interest as to whether or not in the facts and circumstances sanction be accorded to prosecute the public servant. There is no challenge to the competency of PW-4 to issue sanction order. Nothing has been elicited in the cross-examination to show that the material documents were not produced before the sanctioning authority or he has passed Ext.16 in a mechanical manner without applying mind carefully to the facts and circumstances of the case. Therefore, the contention raised by the learned counsel for the appellant that the sanction order is a defective one cannot be accepted. 19. Therefore, the contention raised by the learned counsel for the appellant that the sanction order is a defective one cannot be accepted. 19. In view of the foregoing discussions, the prosecution evidence with regard to demand and acceptance of bribe amount of Rs. 500/- by the appellant from the complainant (PW-1) for passing his house rent bill appears to be shaky in nature. When the defence plea has been established by preponderance of probability and there is absence of sufficient, cogent and reliable evidence on record to establish the guilt of the appellant beyond all reasonable doubt and the impugned judgment suffers from perversity, the same cannot be sustained in the eye of law and accordingly, I am constrained to give benefit of doubt to the appellant. 20. 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 hereby 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.