SHORT NOTE
ORISSA HIGH COURT
S.K. Sahoo, J.
Sanatan Dash – Appellant
versus
State of Odisha (Vig.) – Respondent
CRLA No.322 of 2003
Decided on 21.10.2021

IMPORTANT POINTS
(1) Mere receipt of amount by accused is not sufficient to fasten his guilt in absence of any evidence with regard to demand and acceptance of amount as illegal gratification.
(2) Prosecution cannot derive any advantage from falsity or other infirmities of defence version, so long as it does not discharge its initial burden of proving its case beyond all reasonable doubt.

Headnote:

(A) Prevention of Corruption Act, 1988 – Sections 7 and 13(2) read with Sections 13(1)(d) and 20 – Illegal gratification – Mere receipt of amount by accused is not sufficient to fasten his guilt in absence of any evidence with regard to demand and acceptance of amount as illegal gratification – Burden rests on accused to displace statutory presumption raised under Section 20 of 1988 Act by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that money was accepted by him, other than as a motive or reward as referred to in Section 7 of 1988 Act – In a case where accused offers an explanation for receipt of alleged amount, while invoking provisions of Section 20 of 1988 Act, Court is required to consider such explanation on touchstone of preponderance of probability and not on touchstone of proof beyond all reasonable doubts – Standard required for rebutting presumption is tested on 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 prosecution, then burden of proving defence shifts upon accused – Proof of demand of illegal gratification is gravamen of offences under Sections 7 and 13(1)(d) of 1988 Act and in absence thereof, charge would fail.

Held: 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-à-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. (Ref:- Satyananda Pani (supra), Vinod Kumar Garg (supra), State of Punjab -Vrs.- Madan Mohan Lal Verma : A.I.R. 2013 S.C. 3368; State of Maharashtra -Vrs.- Dnyaneshwar : (2009) 44 Orissa Criminal Reports 425; Punjabrao -Vrs.- State of Maharashtra : A.I.R. 2002 S.C. 486, V. Sejappa -Vrs.- State : A.I.R. 2016 S.C. 2045; Panalal Damodar Rathi -Vrs.- State of Maharashtra: A.I.R. 1979 S.C. 1191, Mukhitar Singh -Vrs.- State of Punjab: (2016) 64 Orissa Criminal Reports (SC) 1016).

In the case of D. Velayutham -Vrs.- State reported in (2015)12 Supreme Court Cases 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.”

(B) Prevention of Corruption Act, 1988 – Sections 7 and 13(2) read with Section 13(1)(d) – Illegal gratification – Conviction and sentence – Decoy has not supported case of prosecution in material aspects and was declared hostile by prosecution – Even though he has mentioned about demand of Rs.500/- by appellant in first information report, but in his evidence, he has categorically stated that appellant never demanded money from him – F.I.R. does not constitute substantive evidence; however it can be used as a previous statement for the purpose of corroboration/contradiction to maker thereof – Allegation has to be proved at trial – Conviction cannot be based only on allegation made in F.I.R. – While judging veracity of witnesses, there cannot be any different yardstick for judging prosecution witnesses or defence witnesses and defence witnesses are to be given equal treatment with prosecution witnesses – Appellant was not supposed to establish his defence plea by proving it beyond reasonable doubt like prosecution but by preponderance of probability – Prosecution cannot derive any advantage from falsity or other infirmities of 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 defence can at best be considered as an additional circumstance against accused provided that other evidence on record unfailingly point towards his guilt – When defence plea has been established by preponderance of probability and there is absence of sufficient, cogent and reliable evidence on record to establish guilt of appellant beyond all reasonable doubt and impugned judgment suffers from perversity, same cannot be sustained in eye of law and Court is constrained to give benefit of doubt to appellant – Impugned judgment and order of conviction set aside and appellant acquitted of all charges.

Held: In the case in hand, the decoy (P.W.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:- A.I.R. 1995 S.C. 1437 : Madhusudan Singh -Vrs.- State of Bihar). In the case of Utpal Das -Vrs.- State of West Bengal reported in (2010) 46 Orissa Criminal Reports (SC) 600, it is held that the first information report does not constitute substantive evidence. It can, however, only be used as a previous statement for the purposes of either corroborating its maker or for contradicting him and in such a case, the previous statement cannot be used unless the attention of witness has first been drawn to those parts by which it is proposed to contradict the witness.

The defence plea of the appellant is that he had not demanded any bribe money from P.W.1 and on the date of incident, while he was working in his office in a standing position, P.W.1 forcibly inserted money in his pant pocket. Such a plea gets support from the evidence of P.W.1. D.W.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 P.W.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 P.W.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. 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.

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 (P.W.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.

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.

Result: Criminal Appeal allowed.