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IN THE HIGH COURT OF ORISSA, CUTTACK
S.K. SAHOO, J.
Sri Satyananda Pani - Appellant
Versus
State of Orissa (Vig.) - Respondent
CRIMINAL APPEAL No. 282 Of 2008
Decided On : 09-10-2017
2. PREVENTION OF CORRUPTION ACT, 1988 - Sec. 7 - Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification - In order to constitute an offence under the Section, proof of demand is a sine qua non - Burden rests on the accused to displace the statutory presumption raised u/s.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 the Section - Further stated.
In a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. While invoking the provisions of Section 20 of 1988 Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt inasmuch as the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. For arriving at the conclusion as to whether all the ingredients of the offence 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 their entirety. The standard of burden of proof on the accused vis-à-vis the standard of burden of proof on the prosecution would differ. The initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. 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 and a presumption would arise under Section 20 of the 1988 Act. The proof of demand of illegal gratification is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of 1988 Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two Sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. The evidence of the complainant should be corroborated in material particulars and 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. Even if the trap witnesses turn hostile or are found not to be independent, if the evidence of the complainant and the other circumstantial evidence on record is found to be consistent with the guilt of the accused and not consistent with his innocence, there should be no difficulty for the Court in upholding the prosecution case. The Trial Court which has the occasion to see the demeanour of the witnesses is no doubt in a better position to appreciate it and the Appellate Court should not lightly brush aside the appreciation done by the Trial Court except for cogent reasons. (Para - 8)
JUDGMENT :
S. K. SAHOO, J.
1. The appellant Satyananda Pani faced trial in the Court of learned Special Judge, Vigilance, Bhubaneswar in T.R. Case No. 45 of 1995 for offences punishable under section 7 and section 13(1)(d) punishable under section 13(2) of the Prevention of Corruption Act, 1988 (hereafter ‘1988 Act’) on the accusation that on 19.01.1994 at about 4.00 p.m., he being a public servant functioning as Excise Inspector, Striking Force, Berhampur, in his office situated at Gosaninuagaon, Berhampur by corrupt and illegal means and abusing otherwise his official position, obtained pecuniary advantage to the extent of Rs.300/- from the complainant (P.W.6) and directly accepted such amount from him as gratification other than legal remuneration as a motive for showing favour to P.W.6 for not filing an excise case against him.
The learned Trial Court vide impugned judgment and order dated 24.06.2008 found the appellant guilty of the offences charged and sentenced him to undergo R.I. for six months and to pay a fine of Rs.1000/-, in default, to undergo R.I. for one month under section 7 of the 1988 Act and to undergo R.I. for one year and to pay a fine of Rs.2000/-, in default, to undergo R.I. for three months under section 13(1)(d) read with section 13(2) of the 1988 Act and both the sentences of imprisonment were directed to run concurrently.
2. The factual matrix of the prosecution case as per the written report presented by P.W.6 Prakash Chandra Sahoo before the Superintendent of Police, Vigilance, Berhampur on 19.01.1994 is that on 31.12.1993 the appellant who was the local Excise Inspector called him and his father to his office located at Gosaninuagaon and asked them to sign on a paper on the ground of seizure of liquor from a field situated nearer to their homestead land. When P.W.6 expressed his unwillingness for such action of the appellant as he was not present in the village, the appellant assured P.W.6 and his father that nothing would happen to them as the liquor was seized from the field. Accordingly, P.W.6 and his father put their signatures on the paper produced by the appellant. It is further stated in the F.I.R. that when they put their signatures, the appellant threatened them to initiate a case against them as the liquor was seized from the back side of their homestead land and to send them to Court after arrest. The appellant further told them that if they would pay Rs.300/-, no case would be initiated against them. Thereafter, P.W.6 and his father returned to their village. Within three to four days, two peons of Excise Office came to the house of P.W.6 and told him to come to the Excise Office as the appellant had called him but P.W.6 did not go to the Excise Office. On 18.01.1994 at about 7.00 p.m. the appellant with his staff searched the residential premises of P.W.6 but did not get any contraband articles. At that time, P.W.6 was not present in his house. The appellant threatened the father of P.W.6 to search his house again and to send them to Court in custody as earlier demand of Rs.300/- was not fulfilled. When P.W.6 came to know about the development from his father, finding no other way, he collected Rs.300/-to give the same as bribe to the appellant against his desire.
On the basis of such first information report, Berhampur Vigilance P.S. Case No. 05 of 1994 was registered on 19.01.1994 under sections 13(2) read with 13(1)(d) and section 7 of the 1988 Act.
3. P.W.11 J. Rama Chandra Rao, Inspector of Vigilance, Reserve Squad, Berhampur was directed by the Superintendent of Police, Vigilance, Berhampur to detect the case by laying a trap and to investigate the case.
On the requisition of P.W.11, the official witnesses along with Vigilance Officers assembled in the Vigilance Office, Berhampur on 19.01.1994 at about 2.30 p.m. P.W.6 appeared before them as per previous instruction and he narrated before the officials regarding demand of bribe by the appellant as monthly contribution as he was regular
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