Kishore Kumar Swain vs State of Orissa (Vig.)

The appellant Kishore Kumar Swain faced trial in the Court of learned Special Judge (Vigilance), Bhubaneswar in T.R. Case No. 99 of 1999

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 while working as Junior Engineer, Khandapara Block, being a public servant, by abusing his position as such public

servant, he demanded and by corrupt or illegal means obtained for his pecuniary advantage to the extent of Rs.600/- (rupees six hundred only)

from the informant Pramod Kumar Bagsingh (P.W.4) in his residential Government quarter in the Block colony towards preparation of the running

bill for developmental work of Mahulapada village tank. The learned trial Court found the appellant guilty of the offences charged and sentenced

him to undergo rigorous imprisonment for one year and to pay a fine of Rs.1000/- (rupees one thousand only), in default, to undergo rigorous

imprisonment for three months more under section 7 of the 1988 Act and further to undergo rigorous imprisonment for two years and to pay a fine

of Rs.5000/- (rupees five thousand only), in default, to undergo rigorous imprisonment for six months more for the offence under section 13(2)

read with section 13 (1)(d) of the 1988 Act and both the sentences were directed to run concurrently.

On 18.03.1997 P.W.4 lodged the first information report before the Superintendent of Police, Vigilance, Bhubaneswar Division, Bhubaneswar

stating therein that a sum of Rs.1,00,000/- (rupees one lakh only) was sanctioned for the renovation work of Jogibandha tank located in mouza

Mahulapada by the Block Development Officer, Khandapara and the village committee recommended the name of the informant to the B.D.O.,

Khandapara for execution of the work and accordingly, work order was issued in favour of the informant on 17.10.1996. The informant started

the work and completed the same where after the appellant took measurement of the executed work. The informant received an advance to the

tune of Rs.60,000/- (rupees sixty thousand only) for the said work in the month of November 1996 in two phases and accordingly, he signed the

vouchers though actually he had received Rs.50,000/- (rupees fifty thousand only). In the month of December 1996, the first running bill of

Rs.70,000/- (rupees seventy thousand only) was prepared and out of the balance of Rs.10,000/- (rupees ten thousand only), the informant was

paid Rs.6,400/- (rupees six thousand four hundred only) and therefore, out of prepared bill of Rs.70,000/- (rupees seventy thousand only), the

informant actually received Rs.56,400/- (rupees fifty six thousand four hundred only) and an amount of Rs.14,600/- (rupees fourteen thousand six

hundred only) was deducted from the first running bill by cashier Behera babu on the instruction of the appellant. It is the further prosecution case

as the first information report that the informant approached the appellant for payment of the balance dues of the executed work but he was told by

the appellant to pay bribe of Rs.2000/- (rupees two thousand only) otherwise the second running bill would not be prepared. The informant

expressed his incapacity to meet such demand and accordingly requested the appellant for which the appellant agreed to prepare the second

running bill after receiving bribe money of Rs.600/- (rupees six hundred only) and the appellant told the informant to pay the amount on

19.03.1997. It is further stated in the first information report that in spite of his unwillingness, the informant was going to pay Rs.600/- (rupees six

hundred only) to the appellant towards bribe money and demanded that legal action should be taken against the appellant. On receipt of such first

information report, the Superintendent of Police, Vigilance, Bhubaneswar Division, Bhubaneswar directed the officer in charge of Vigilance police

station, Bhubaneswar to register the case and accordingly, Bhubaneswar Vigilance P.S. Case No.2 of 1997 was registered on 18.03.1997 under

section 7 and section 13(2) read with section 13(1)(d) of the 1988 Act.

Mr. U. Rama Rao (P.W.5) who was working as Inspector of Police, Vigilance, Khurda took up investigation of the case as per the order of the

Superintendent of police, Vigilance, Bhubaneswar Division, Bhubaneswar. A requisition was made by the D.S.P., Vigilance for the attendance of

the official witnesses and they appeared before P.W.5 on 19.03.1997 at 10.00 a.m. in the office of D.S.P., Vigilance, Bhubaneswar. The

informant (P.W.4) was introduced to the trap party members and he narrated the contents of the F.I.R. and produced six numbers of 100 rupees

G.C. notes which he had brought for making payment to the appellant towards bribe. Demonstration was made to show the use and effect of the

phenolphthalein powder in the solution of sodium carbonate. Notes were treated with the powder and after test, sample was preserved. Numbers

of notes were noted down. The tainted notes were kept in a fourfold paper with instruction to the informant (P.W.4) to hand over the same to the

appellant only on demand. P.W.3 Ashok Kumar Rath was asked to accompany the informant with instruction to overhear conversation between

the appellant and the informant and to give signal after the transaction. A preparation report (Ext.1) was made in presence of witnesses. A copy of

the preparation report was given to P.W.1 Sudarsan Mishra, with instruction to compare the numbers of the notes at the time of detection. The

members of trap party including the informant proceeded to Khandapara Block office and they arrived there at about 3.00 p.m. P.W.4 and P.W.3

proceeded to the Block Office by walk and other members of trap party keeping position near the Block office waited for the signal. After 5

minutes, it was reported that the appellant was available in his residence. P.W.4 and P.W.3 then proceeded to the residence of the appellant. The

trap party members waited for the signal keeping position near his residence. At about 3.50 p.m. getting signal, the trap party members rushed to

the residence of the appellant. They found the appellant sitting on a single sofa of his residence holding some currency notes in his left hand. D.W.1

Mahendra Kumar Panda was sitting on his right and P.W.4 was standing near the entrance door. The D.S.P., Vigilance disclosed the identities of

the trap party members and Mr. N. Nayak, Inspector caught hold of the right hand and P.W.5 caught hold of the left hand of the appellant. The

appellant was challenged by the trap party members to have received the bribe of Rs.600/- from the informant. The appellant admitted to have

received the money and showed the currency notes which were in his left hand. The appellant was asked to keep those currency notes on a

teapoy. The hand wash of the appellant was taken in sodium carbonate solution resulting change of colour to pink/rose and sample was preserved.

The appellant was asked to count the currency notes and after counting, it was found to be Rs.600/-. Again the hand wash of the appellant was

taken and sample was preserved. D.W.1 who was sitting by the side of the appellant was asked to verify the numbers of the currency notes and

compare it with the noting in the copy of the preparation report and on comparison, the numbers tallied. Hand wash of D.W.1 was taken and

tested. Sample was preserved. Sudarsan Mishra (P.W.1) also compared the numbers of the currency notes which tallied. His hand wash was also

taken and tested and sample was preserved. P.W.5 seized the tainted G.C. notes, four fold paper, copy of preparation report, sample bottles,

case record, measurement books etc. He prepared the detection report (Ext.2) in presence of the witnesses. P.W.5 handed over the brass seal to

Sudarsan Mishra (P.W.1) vide Ext.14. During course of investigation, father of the informant filed an affidavit vide Ext.15. P.W.5 collected the

work order vide Ext.16 and he sent the exhibits for chemical examination and received the C.E. report vide Ext.3. He placed all the materials

before the sanctioning authority and had a discussion with him and accordingly, sanction for launching prosecution against the appellant was

accorded as per sanction order Ext.17. On completion of investigation, charge sheet was submitted on 31.12.1997 against the appellant for

offences punishable under section 7 and section 13(2) read with section 13(1)(d) 1988 Act.

In order to prove its case, the prosecution examined five witnesses. P.W. 1 Sudarsan Mishra was the Junior Clerk in the office of Civil Supply

Officer, Khurda. He attended the pre-trap preparation and also accompanied the trap party members to the spot. He stated about the recovery of

tainted money from the possession of the appellant and change of hand wash colour taken in chemical solution. He also compared the numbers of

the recovered G.C. notes with the numbers noted in the preparation report and found the same tallied. P.W.2 Satyananda Moharana was the Asst.

Director, S.F.S.L., Rasulgarh who examined the exhibits forwarded and on chemical examination, he found phenolphthalein in all the bottles in the

solution of sodium carbonate and submitted the report Ext.3. P.W.3 Ashok Kumar Rath was the Junior Clerk in the Civil Supply Office,

Bhubaneswar and he was also present during the pre-trap demonstration. He is a member of the trap party and acted as over hearing witness and

stated about the acceptance of money by the appellant and recovery of money from him and preparation of detection report as per Ext.2. He is

also a witness to the seizure lists Exts.4 to 9. P.W.4 Pramod Kumar Bagsingh is the informant of the case and he stated in detail about the

preparation for trap, acceptance of money by the appellant and its detection. He further stated about the preparation of detection report. He was

declared hostile by the prosecution. P.W.5 U. Rama Rao was the Inspector of Police, Vigilance, Khurda and he is the informant of the case as

well as investigating officer. The prosecution exhibited seventeen documents. Ext.1 is the preparation report, Ext.2 is the detection report, Ext.3 is

the chemical examination report, Exts.4, 5, 6, 7, 8, 9, 12 and 13 are the seizure lists, Ext.10 is the written FIR, Ext.11 is the fourfold paper, Ext.14

is the receipt, Ext.15 is the affidavit, Ext.16 is the work order and Ext.17 is the sanction order. The prosecution also proved two material objects.

The tainted notes were marked as M.O.I and the sample glass bottles were marked as M.O.II.

The defence plea of the appellant is that father of the informant had taken a loan of Rs.600/- from him and on the date of occurrence, the

informant refunded such money which was accepted by him. It is specifically pleaded by the appellant that he had neither demanded any bribe for

the preparation of second running bill nor instructed cashier Mr. Behera to deduct any money at the time of payment towards the first running bill.

Two witnesses were examined on behalf of the defence. D.W.1 Mahendra Kumar Panda was present with the appellant at the time of trap and he

stated what transpired between the appellant and the informant. D.W.2 Padma Charan Bhatta stated about the father of the informant taking

Rs.600/- from the apprellant towards purchase of the grocery articles.

The learned trial Court formulated the following points for consideration:- (i) Whether the accused had demanded Rs.2,000/- from the decoy

for preparation of running bill for renovation work of Jogibandha tank situated at village Mahulapada and reduced to Rs.600/- payable on

19.3.1997? (ii) Whether on 19.3.1997 the accused accepted/obtained Rs.600/- from the decoy for preparation of running bill for renovation work

of Jobibandha tank situated at village Mahulapda? (iii) Whether the accused had obtained/received bribe to show official favour to the decoy and

the amount was not his official remuneration? (iv) Whether the accused was a public servant and there is valid sanction for launching prosecution

against him.

The learned Trial Court after assessing the evidence on record came to hold that the decoy had received Rs.56,400/- out of Rs.70,000/- in

respect of the first running bill and the second running bill had not been prepared and the work had not been completed and that there is

overwhelming primary evidence that the appellant demanded illegal gratification of Rs.600/- payable on 19.03.1997 from the informant for

preparation of the second running bill and that the appellant accepted the tainted G.C. notes from the informant. It was further held that basing on

the C.E. report coupled with the oral evidence and the admission of the appellant, it must be held that the appellant had consciously and voluntarily

accepted the tainted G.C. notes from the decoy. It was further held by the learned trial Court that the statement of D.W.1 to the extent that money

was given by the 12 informant for refund of loan to the appellant is an afterthought one as the informant did not himself say so and as such it is not

believable. It was further held that the evidence of D.W.2 that father of the informant had taken loan is not believable. It was further held that from

the conduct of the appellant, it appears that he approached the father of the informant namely Rama Chandra Nayak for compromise and obtained

his signature on a paper to convert it to an affidavit so as to make the defence plea relating to payment of loan believable. It was further held that

the appellant had not discharged his presumption and therefore, prosecution has succeeded in establishing the fact that the appellant had accepted

Rs.600/- on 19.03.1997 from the informant towards illegal gratification for preparation of second running bill. It was further held that there is a

valid sanction for launching prosecution against the appellant and that the ingredients of the offences are made out.

Mr. Devashis Panda, learned counsel appearing for the appellant contended that even though the acceptance and recovery of money is not

disputed but the defence plea that the money which was paid by the informant to the appellant on the date of trap was the money which his father

had taken loan from the appellant, has been established by the defence not only by adducing defence evidence but also by way of some admissions

which have been made by the prosecution witnesses. It is contended that when the defence plea has been established by preponderance of

probabilities, the learned Trial Court has rejected the defence plea in a mechanical manner without proper analysis of evidence. The learned

counsel further contended that in absence of any clinching substantive evidence relating to demand of bribe money, mere proof of acceptance and

recovery of tainted money would not be sufficient in itself to convict the appellant of the offences charged. It is further contended that P.W.5 being

the officer in charge of the success of trap is a highly interested witness and he should not have investigated the matter and submitted charge sheet.

He further submitted that the sanctioning authority has not been examined and mere proof of sanction order is not sufficient to establish that there

has been proper application of mind before according sanction. The learned counsel for the appellant relied upon the decisions in cases of Krishan

Chander -Vrs.- State of Delhi reported in (2016) 3 Supreme Court Cases 108, P. Satyanarayana Murthy -Vrs.- District Inspector of Police

reported in (2015) 10 Supreme Court Cases 152 and Niranjan Khatua -Vrs.- State of Orissa reported in 1990 (II) Orissa Law Reviews 108 and

contended that the prosecution has failed to establish the ingredients of the offences charged and therefore, the impugned judgment should be set

aside. Mr. Sanjay Kumar Das, learned Standing Counsel for the Vigilance Department on the other hand contended that the factum of acceptance

of money from the informant and its recovery from the appellant is not disputed by the defence. The defence plea that it was not bribe money but

the borrowed money by the father of the informant from the appellant which was returned by the informant on the date of trap cannot be accepted

in absence of any clinching evidence in that respect. It is further contended that the prosecution case that for preparation of second running bill, the

appellant first demanded Rs.2000/- which was reduced to Rs.600/- has been established by the prosecution by oral and documentary evidence. It

is contended that the hand wash of the appellant taken at the spot, chemical examination report clearly established the factum of acceptance of

tainted money by the appellant from the informant towards bribe. The learned counsel submitted that even though P.W.4 has not supported the

prosecution case in its entirety but as discussed by the learned trial Court, the materials on record are sufficient to establish the ingredients of the

offences. Learned counsel relied upon the decisions of the Hon''ble Supreme Court in case of Koli Lakhmanbhai Chanabhai -Vrs.- State of

Gujarat reported in A.I.R. 2000 S.C. 210, Vinod Kumar -Vrs.- State of Punjab reported in A.I.R. 2015 S.C. 1206, T. Shankar Prasad -Vrs.-

State of Andhra Pradesh reported in (2004) 27 Orissa Criminal Reports (SC) 599 and State of West Bengal -Vrs.- Kailash Chandra Pandey

reported in A.I.R. 2005 S.C. 119.

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-?-

vis the standard of burden of proof on the prosecution would differ. 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:- State of Punjab -

Vrs.- Madan Mohan Lal Verma reported in A.I.R. 2013 S.C. 3368, State of Maharashtra -Vrs.- Dnyaneshwar reported in (2009) 44 Orissa

Criminal Reports 425, Punjabrao -Vrs.- State of Maharashtra reported in A.I.R. 2002 S.C. 486, V. Sejappa -Vrs.- State reported in A.I.R.

2016 S.C. 2045, Panalal Damodar Rathi -Vrs.- State of Maharashtra reported in A.I.R. 1979 S.C. 1191, Mukhitar Singh -Vrs.- State of Punjab

reported in (2016) 64 Orissa Criminal Reports (S.C.) 1016).

In the case in hand, the acceptance of Rs.600/- by the appellant from the informant (P.W.4) is not disputed. It is also not disputed that there

was recovery of Rs.600/- from the appellant. The only issue which arises for consideration is whether such amount was demanded by the appellant

from P.W.4 as bribe for preparation of the second running bill as per the prosecution case or it was the refund of the loan amount which was given

by the appellant to the father of P.W.4 for purchase of grocery articles as per the defence plea. Since the initial burden of proving that the appellant

demanded the amount other than legal remuneration is upon the prosecution, let me now analyse the evidence on record to see as to how far the

prosecution has successfully discharged the burden.

So far as the demand made by the appellant prior to presentation of the first information report is concerned, the evidence of the informant

(P.W.4) is only relevant. In the first information report (Ext.10), P.W.4 has mentioned that when he approached the appellant for payment of the

balance dues of the executed work, the appellant demanded Rs.2,000/- (rupees two thousand only) for the preparation of the second running bill

and after repeated request of the informant, the amount was reduced to Rs.600/- (rupees six hundred only) which was directed to be paid on

19.03.1997. However in his evidence, P.W.4 has stated that when he approached the appellant for passing the running bill, he did not respond for

which he informed his father and his father and Haribandhu Pradhan went to the appellant and his father told him to pay Rs.600/- to the appellant.

Thus there is substantial difference between what is narrated in the first information report as well as what was deposed to by the informant during

trial. Neither the father of the informant nor Haribandhu Pradhan has been examined.

P.W.4 stated that he went to the Vigilance Office where vigilance staff and other witnesses were present and he told them about the demand made

by the appellant for doing the work. The witnesses to the preparation for trap are P.Ws.1, 3 and 5. Though P.W.3 has stated that the informant

told before them that the appellant had demanded Rs.2,000/- as bribe to do his work but subsequently reduced the amount to Rs.600/-, P.W.1 on

the other hand stated that the informant disclosed that the appellant had demanded bribe of Rs.2,000/- from him for passing the running bill. Thus

P.W.1 has not stated about the reduction of the demand money from Rs.2,000/- to Rs.600/- as stated by P.W.3. The trap laying officer P.W.5

stated that the informant told that the appellant had demanded bribe of Rs.2,000/- for check measurement for the second running bill and that

when he expressed his difficulties, the appellant insisted for payment of Rs.600/- on 19th. As already indicated, the evidence of P.W.4 is silent with

respect to demand of Rs.2,000/- by the appellant as bribe for preparation of the bill and its reduction to Rs.600/-. When P.W.4 has not stated

about any such demand aspect by the appellant as bribe in his evidence, his disclosure before the vigilance staff and other witnesses regarding the

demand cannot be accepted.

It is no doubt that the learned trial Court permitted the prosecution to put leading questions to the informant (P.W.4) under section 154 of the

Evidence Act. It is not clear from the record as to why the prosecution was permitted to put leading questions to the informant. Neither any

application of the prosecution in that respect is available on record nor the order sheet dated 20.05.2008 on which date P.W.4 was examined

indicates anything in that respect. It is the settled principle of law that the discretion vested in the Court relating to permission for cross-examination

of a witness in terms of section 154 of the Evidence Act cannot and should not be granted at the mere asking of the party calling the witness and it

must be judiciously and properly exercised in the interest of justice. The contingency of cross-examining the witness by the party calling him is an

extra-ordinary phenomenon and permission should be given only in special cases. The Court, before permitting the party calling the witness to

cross-examine him, must scan and weigh the circumstances properly and should not exercise its discretion in a casual or routine manner. Unless the

Court is satisfied that the statement of witness exhibits an element of hostility or that he has resiled from a material statement which he made before

an earlier authority or where the Court is satisfied that the witness is not speaking the truth and it may be necessary to crossexamine him to get the

truth, the Court will not normally allow a party to cross-examine its own witness. Merely because a witness in an unguarded moment speaks the

truth which may not suit the prosecution or which may be favourable to the accused, the discretion to allow the party concerned to crossexamine

his own witness should not be allowed.

The informant (P.W.4) was confronted with the F.I.R. and his previous statement before police by the prosecution and he has stated as follows:-

I had scribed the report. I have mentioned in the F.I.R. and stated before the I.O. that when I approached the accused in the matter, he

demanded bribe of Rs.2,000/- and told not to pass the running bill unless the above amount was paid and that I expressed my helplessness, he told

for payment of Rs.600/-. I have not mentioned in the F.I.R. that as per the instruction of my father, I paid Rs.600/- to the accused. It is a fact that I

had stated before the I.O. that when I met the accused J.E. in his office, he inquired in the matter about the money. It is also a fact that I had stated

before the I.O. that after handing before the money, the accused had accepted the same in his right hand and thereafter in his left hand and kept in

the table.

The learned Standing Counsel submitted that even though P.W.4 has not supported the prosecution case in its entirety and he is a hostile witness,

since P.W.4 has admitted in his evidence to have mentioned in the F.I.R. and also stated before the police in his statement about the demand of

bribe by the appellant, the evidence should be accepted and basing on such statement, it can be said that the prosecution has proved the demand.

He placed reliance in the case of Koli Lakhmanbhai Chanabhai -Vrs.- State of Gujarat reported in AIR 2000 SC 210 wherein 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. He placed reliance in the case of T. Shankar Prasad -Vrs.- State of Andhra Pradesh reported in (2004)

27 Orissa Criminal Reports (SC) 599 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 credit worthy and act upon it.

He further placed reliance in the case of Vinod Kumar -Vrs.- State of Punjab reported in A.I.R. 2015 S.C. 1206 wherein it is held that

38......As we notice, the authorities in B. Jayaraj [(2014) 58 Orissa Criminal Reports (SC) 175: 2014 (I) Orissa Law Reviews (SC) 1014] and

M.R. Purushotam [(2015) 61 Orissa Criminal Reports (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. Jain that when Baj Singh, P.W.5, the

complainant, had turned hostile, the whole case of the prosecution would collapse is not acceptable and accordingly hereby rejected.

The argument advanced by the learned Standing Counsel in this respect is not at all appreciable. P.W.4 has stated in his chief examination that his

father and Haribandhu Pradhan went to the appellant and his father told him to pay Rs.600/- to the appellant. No suggestion has been given by the

Prosecutor to P.W.4 that it is a false statement. Even though in the first information report, the demand aspect has been reflected but law is well

settled as held in case of Madhusudan Singh -Vrs.- State of Bihar reported in A.I.R. 1995 S.C. 1437 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 in the F.I.R. In 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. In case of Chaitu Naik -Vrs.- State of Orissa reported in (2015) 60 Orissa Criminal Reports 906, it is held that a statement recorded

under section 161 of Cr.P.C. is not a substantive piece of evidence. In view of the proviso to sub-section (1) of section 162 of Cr.P.C., the

statement can be used only for the limited purpose of contradicting the maker thereof in the manner laid down in the said proviso. Such a statement

cannot be treated as evidence in the criminal trial but may be used for the limited purpose of impeaching the credibility of a witness. In case of

State of Delhi -Vrs.- Shri Ram Lohia reported in A.I.R. 1960 S.C. 490, it is held as follows:-

13......Statements recorded under Section 164 of the Code are not substantive evidence in a case and cannot be made use of except to

corroborate or contradict the witness. An admission by a witness that a statement of his was recorded under Section 164 of the Code and that

what he had stated there was true would not make the entire statement admissible much less that any part of it could be used as substantive

evidence in the case.

In view of the settled position of law as discussed above, when P.W.4 has not stated in his evidence relating to any demand made by the appellant

for preparation or passing the running bill but only stated that when he approached the appellant for passing the running bill, he did not respond,

merely because he has admitted to have mentioned in the F.I.R. regarding the demand aspect which according to him was scribed as per the

instruction of one Pramod Panda and further admitted to have stated before the I.O. about such aspect, it would not make the evidence relating to

demand admissible much less any part of it could be used as substantive evidence in the case. So far as the demand made by the appellant on the

date of trap is concerned, P.W.3 has stated that seeing the informant, the appellant enquired about the money. The informant told that he had

brought money and then the informant handed over the tainted G.C. notes to the accused. In the cross-examination, P.W.3 has stated that there

had been no talk between the appellant and the informant except the demand made by the appellant and payment made by the informant. P.W.4,

the informant on the other hand has stated when the appellant asked for money, he tendered the money saying that his father had sent the money

and the appellant accepted it. Therefore, there is substantial difference between the evidence of P.W.4 and P.W.3 relating to what transpired

between the appellant and the informant (P.W.4). According to the Investigating Officer (P.W.5) as well as the informant (P.W.4), D.W.1

Mahadev Panda was sitting on the right of the appellant at the time of trap. D.W.1 has stated that the informant came to the house of the appellant

and told that his father had given money for making payment to him and the appellant received the money from the informant. Therefore, on a

conjoint reading of the evidence of P.W.3, P.W.4 and D.W.1 would indicate that there is nothing like demand of any bribe by the appellant

relating to preparation of running bill of P.W.4.

In case of Krishan Chander -Vrs.- State of Delhi reported in (2016) 3 Supreme Court Cases 108, it is held that the demand for the bribe money is

sine qua non to convict the accused for the offences punishable under sections 7 and 13(1)(d) read with section 13(2) of the 1988 Act. In case of

P. Satyanarayana Murthy -Vrs.- District Inspector of Police reported in (2015) 10 Supreme Court Cases 152, it is held that the proof of demand

has been held to be an indispensable essentiality and of permeating mandate for an offence under sections 7 and 13 of the Act. Qua section 20 of

the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under section 7 and not to

those under section 13(1)(d) (i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to

do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand.

Axiomatically, it was held that in absence of proof of demand, such legal presumption under section 20 of the Act would also not arise. In the case

in hand, there is no clinching and acceptable material available on record to show that the appellant had demanded Rs.2,000/- from P.W.4 for

preparation of running bill for renovation work of Jogibandha tank situated at village Mahulapada which was reduced to Rs.600/- payable on

19.03.1997 or that on 19.03.1997 the appellant accepted/obtained bribe of Rs.600/- from P.W.4 for preparation of running bill of the said work

or that the appellant had obtained/received bribe to show official favour to P.W.4.

The appellant has taken a specific plea that father of the informant (P.W.4) had taken a loan of Rs.600/- from him and on the date of

occurrence, the informant refunded such money which was accepted by him. P.W.4 has stated that his father told him to pay Rs.600/- to the

appellant and he tendered the money to the appellant saying that his father had sent the money. In the cross-examination, P.W.4 has stated that he

cannot say if his father had taken loan of Rs.600/- from the appellant and had returned the same through him to the appellant. P.W.3 has stated

that at the time of detection, the appellant had taken a plea that the father of the informant had taken loan of Rs.600/- fifteen days prior to that and

that the informant refunded the money on that day. P.W.5, the I.O. has stated that the appellant had taken the plea that the father of the informant

had taken loan of Rs.600/- and the informant had refunded that amount on that day. D.W.1 who was sitting close to the appellant at the time of

trap has also stated that the informant came to the house of the appellant and told that his father had given money for making payment to him and

the accused received the money from the informant. The learned trial Court gave undue emphasis on an affidavit which was stated to have been

filed by the father of the informant before the I.O. and marked as Ext.15 (with objection). It is a xerox copy. The I.O. has stated that he has not

interrogated the identifying advocate Dandapani Swain of the deponent and he has not effected seizure of the xerox copy. On the basis of such

inadmissible document and going through the contents thereof, the learned trial Court should not have jumped to the conclusion that the appellant

approached Rama Chandra Naik, the father of the informant for compromise and obtained his signatures on a paper to convert it to an affidavit so

as to make the defence plea relating to payment of loan believable. When the defence has not relied upon any affidavit of Rama Chandra Naik,

such a finding is fallacious and highly untenable. The observation of the learned trial Court that the defence plea that money was given by the

informant for refund of loan to the appellant is an afterthought one appears to be not correct. The talk which was made between the appellant and

the informant before passing of the money and the immediate disclosure by the appellant before the trap party members relating to the loan taken

by the father of the informant is admissible under section 6 of the Evidence Act as res gestae. When an accused gives a spontaneous explanation

right at the moment when the crime is committed and there was no opportunity to fabricate such explanation or concoct a story, the explanation

becomes res gestae within the meaning of section 6 of the Evidence Act. The learned Standing Counsel contended that since the appellant did not

know the father of the informant prior to the date of giving loan, the loan advance plea sounds to be absurd. He placed the cross-examination of

D.W.2 Padma Charan Bhatta. D.W.2 has stated in his chief examination that on 01.03.1997 Rama Chandra Nayak, the father of the informant

had come for marketing to observe the 21st day ceremony of his grandson and he came to the Block and told him about nonavailability of

Rs.600/- towards payment for grocery articles. He further stated that he told the father of the informant about the non-availability of money with

him and proceeded to the Block Office and the father of the informant also accompanied him and they came to the office room of the appellant and

when he told about the need of money, the appellant paid Rs.600/- to the father of the informant who told to refund the money after fifteen days

through his son. Even though the father of the informant was not known to the appellant but D.W.2 was very much known to the appellant as

according to D.W.2, he was working as Secretary of Jagannath Prasad Gram Panchayat and the appellant used to assist the Panchayat in the

developmental work and the appellant had good relationship with the Gram Panchayat. In view of the previous close acquaintance of the appellant

with D.W.2, when D.W.2 approached him regarding need of money of Rs.600/- and accordingly, it was given to the father of the informant on the

mediatorship of D.W.2, there is nothing absurd or improbability feature in it. Since the appellant is not required to establish his defence plea by

proving beyond reasonable doubt like the prosecution but can establish the same by preponderance of probability, an overall assessment of the

evidence adduced by the appellant coupled with the immediate disclosure made by the appellant before the trap party members, it cannot be said

the defence version is improbable. Moreover, 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. In case of Shankarlal Gyarasilal Dixit -

Vrs.- State of Maharashtra reported in A.I.R. 1981 S.C. 765, the Hon''ble Supreme Court held that falsity of defence case cannot take the place

of proof of facts which prosecution has to establish in order to succeed. A false plea by the defence can be best considered as an additional

circumstance provided other evidence on record unfailingly point to the guilt of the accused. Therefore, if the evidence on record fails to point to

the guilt of the accused beyond reasonable doubt, it is of no consequence whether or not the defence version is false. The learned Trial Court has

not considered the defence plea of the appellant on the touchstone of preponderance of probability and whimsically rejected the same holding that

the plea of the appellant that father of P.W.4 had taken Rs.600/- from him for the purchase of grocery articles is not acceptable. Therefore, I am

of the humble view that the appellant has succeeded in establishing his defence plea by way of preponderance of probability.

The Investigating Officer (P.W.5) has stated that as per the work order, the work was to be completed by 31.01.1997 and administrative

approval has been given by the Collector for Rs.1,00,000/- (one lakh only). The informant (P.W.4) has stated that he had not completed the work

as per work order. Even though P.W.4 has stated that the bill was made for Rs.70,000/- but he got Rs.56,400/- and though he signed in the bill

for the remaining amount of Rs.15,000/- but money was not paid to him. The I.O. has stated that at the time of interrogation, the B.D.O. had

stated that after deduction of advance of Rs.60,000/- and security deposit of Rs.2100/-, the rest amount of Rs.7900/- had been given to the

informant. The I.O. has further stated that Panchanan Behera, the then cashier had stated that he had deducted Rs.2100/-. Though the statement of

the Investigating Officer what the B.D.O. and Panchanan Behera stated before him are not substantive evidence but it cannot be lost sight of the

fact that the B.D.O. and Panchanan Behera were the charge sheet witnesses and they have been withheld during trial by the prosecution perhaps

because their examination would have falsified the case of the informant that there was any illegal deduction from his first running bill amount.

Except proving the work order (Ext.16), the bills and other documents relating to payment of the first running bill amount have not been proved. It

is no doubt true that the prosecution has to decide which witnesses would be examined and which documents are to be proved, but certainly the

prosecution has to act fairly and honestly and in such a manner as it does not cause prejudice to the accused. The duty of the prosecutor is to assist

the Court in reaching a proper conclusion with regard to the case which is brought before it for trial. If inconvenient witnesses are suppressed from

the witness box by the prosecution, it would not be a fair trial. Therefore, the prosecution case that there was illegal deduction from the first running

bill of the informant at the instance of the appellant cannot be accepted.

Adverting to the contention raised by the learned counsel for the appellant that sanctioning authority has not been examined and mere proof of

sanction order is not sufficient to establish that there has been proper application of mind before according sanction, it is the settled law that

according of sanction is not idle formality but a solemn and sacrosanct act following the consideration of all the materials placed before the

sanctioning authority who is not to be guided by any extraneous consideration, which alone provides the protection to public servants against

frivolous prosecutions and litigations. The sanctioning authority must keep in mind their solemn duty to safeguard the interests of public servants

from the pilferages and false allegations and stage managed prosecution cases against such people. This requirement of law is necessarily

incumbent upon the investigating agency, to be complied with and the sanction order from the competent authority is to be produced before the

Court taking cognizance of an offence punishable under sections 7, 10, 11, 13 and 15 of 1988 Act alleged to have been committed by a public

servant as provided under section 19 of the 1988 Act. The burden of proof is squarely on the prosecution to show that the sanction accorded in a

given case is valid in law and such burden includes proof that the sanctioning authority has accorded the sanction with reference to the facts to

which the proposed prosecution was to be based and that in this context, it has become essential for all the facts which were relied on to be

referred on the face of the sanction, or it might be proved by independent evidence that the sanction was accorded for prosecution after those facts

had been placed before the sanctioning authority. Mere identification of an error or omission or irregularity in according the sanction by sanctioning

authority is not enough but the identification must be of such a nature which resulted in the failure of justice to the aggrieved person. The objection

of the sanction required to be accorded under section 19 of 1988 Act cannot be taken so lightly. In case of Mansukhlal Vithaldas Chauhan -Vrs.-

State of Gujarat reported in A.I.R. 1997 S.C. 3400, it is held as follows:-

Since the validity of ""Sanction"" depends on the applicability of mind by the sanctioning authority to the facts of the case as also the material

and evidence collected during investigation, it necessarily follows that the sanctioning authority has to apply its own independent mind for the

generation of genuine satisfaction whether prosecution has to be sanctioned or not. The mind of the sanctioning authority should not be under

pressure from any quarter nor should any external force be acting upon it to take a decision one way or the other. Since the discretion to grant or

not to grant sanction vests absolutely in the sanctioning authority, its discretion should be shown to have not been affected by any extraneous

consideration. If it is shown that the sanctioning authority was unable to apply its independent mind for any reason whatsoever or was under an

obligation or compulsion or constraint to grant the sanction, the order will be bad for the reason that the discretion of the authority ""not to sanction

was taken away and it was compelled to act mechanically to sanction the prosecution.

In case of Niranjan Khatua -Vrs.- State of Orissa reported in 1990 (II) Orissa Law Reviews 108, a learned Single Judge of this Court held that

when no witness was examined to state on oath that the sanction order given by the appropriate authority was after due application of mind to the

facts and circumstances of the case and there is no reliable evidence to show that there is a valid sanction to prosecute the accused, on that score

also, the prosecution must fail. It appears on the bare perusal of the sanction order (Ext.17) that the sanctioning authority on the perusal of the

F.I.R., the report of the S.P. furnished by the vigilance, other relevant papers and discussing the evidence with the Investigating Officer, being

satisfied after application of mind, has been pleased to observe that there is ample justification to prosecute the appellant and accordingly accorded

sanction. P.W.5 has stated that he had discussion with the sanctioning authority and he had personally produced the documents like case diary,

statements of witnesses, copy of preparation report, seizure lists etc. before the sanctioning authority. The I.O. has denied the suggestion given by

the defence that nothing was produced before the sanctioning authority and that signature of the sanctioning authority was obtained on a draft

sanction order produced before him. Even though the sanctioning authority has not been examined as a witness, the sanction order gives the details

of the records perused and regarding discussion with the Investigating Officer before granting sanction. The Investigating Officer has also

supplemented about the details of placement of materials before the sanctioning authority and discussion with him. He has specifically stated that he

placed all the materials before the sanctioning authority and had discussion with him who had accorded sanction for launching prosecution against

the appellant. He has proved the sanction order Ext.17 and also proved the signature of Dr. B.P. Das, Engineer-in-chief, Water Resources,

Orissa, Bhubaneswar to which he was acquainted as Ext.17/1.

It is no doubt true that independent application of mind and consequent satisfaction arrived at, for granting sanction under section 19 of the 1988

Act, are matters which could be proved only by the sanctioning authority and nobody else. It is also true that a document can be proved even by a

person familiar with the handwriting of the person who issued the document but when independent application of mind in the process of granting

sanction itself is an issue, somebody cannot come and prove the sanction claiming to be the person familiar with the handwriting or signature of the

sanctioning authority and the sanctioning authority himself will have to be examined to prove the sanction.

It is the duty of the prosecution to examine the sanctioning authority during trial not only to prove the sanction order but also to satisfy the judicial

conscience that it was in accordance with law. By such examination, the defence can get an opportunity in pointing out lacunas in the sanction

order.

Therefore, the non-examination of the sanctioning authority cannot be lightly brushed aside. However, since in the case in hand, the document

pertaining to sanction vide Ext.17 gives detailed account of materials perused, discussion with the Investigating Officer which is corroborated by

the ocular testimony of the Investigating Officer and no infirmity has been brought out on record by the defence in the process of grant of sanction,

mere nonexamination of the sanctioning authority cannot vitiate the prosecution against the appellant.

Adverting to the contention raised by the learned counsel for the appellant that P.W.5 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 like 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. Unless any prejudice is shown or any glaring infirmity or illegality in the investigation is established, the

prosecution case cannot be discarded. In the fairness of things, the investigation after a successful trap is required to be conducted by another

officer higher in rank than the trap laying officer as the role/task of trap laying officer ends immediately after the trap is over.

Learned counsel for the Vigilance Department placed reliance in the case of State of West Bengal -Vrs.- Kailash Chandra Pandey reported in

AIR 2005 SC 119 wherein it is held that the Appellate Court should be slow in re-appreciating the evidence. The trial Court has the occasion to

see the demeanour of the witnesses and it is in a better position to appreciate the evidence and the Appellate Court should not lightly brush aside

the appreciation done by the trial Court except for cogent reasons. In view of the materials available on record, in the absence of any acceptable

evidence with regard to demand of bribe by the appellant from the informant (P.W.4) for preparation of the second running bill, when the defence

plea relating to the reason for acceptance of money in question has been established by preponderance of probability, I am of the humble view that

guilt of the appellant has not been established beyond reasonable doubt and the impugned judgment suffers from perversity and therefore, 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 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.