JUSTICE S.K. SAHOO

Sudarsan Sahani v. State of Odisha (Vig.)

Case Number: CRLA No. 695 of 2016 and batch

Date of Decision: 18th April, 2022

The Appellants and the Respondent no.4 (Abakash Padhy/co-accused) faced trial in the Court of Special Judge (Vigilance), Phulbani for the offences punishable under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 (‘1988 Act’) along with offences punishable under sections 420, 468, 201 and section 120-B of the Indian Penal Code on the accusation of misappropriating government money to the tune of Rs.1,50,000/- in connivance with each other by corrupt or illegal means or by otherwise abusing their position showing false execution of pothole repair work, committing forgery of certain documents/records such as, pothole repair estimate and causing disappearance of evidence.

The Trial Court vide impugned judgment and acquitted the Respondent no.4 of all the charges however, found the Appellants guilty of the offence under Section 13(2) read with section 13(1) (d) of 1988 Act and sentenced each of the appellants to undergo rigorous imprisonment for two years each. The Appellants challenged the impugned judgment and order passed by the Trial Court whereas the State of Odisha filed the GCRLA No. 25 of 2019 challenging the order of acquittal of the appellants of the charges under sections 420, 468, 201 and 120-B of the Indian Penal Code so also of the Respondent no.4 of all the charges.

The Trial Court had held that the prosecution has successfully established the charge under section 13(2) read with section 13(1)(d) of the 1988 Act against the Appellants. The Trial Court further held that on careful scrutiny of the materials on record, there appears nothing to the fact that the appellants conspired with the Respondent no.4 to grab the government funds allotted for construction of potholes and therefore, the prosecution has failed to bring home the charge under section 120-B of the Indian Penal Code against the accused persons.

The first and core point for determination was whether the 1st agreement executed with the contractor Arun Kumar Choudhury was in force when the 2nd agreement was executed with the Respondent no.4. The second point for determination was whether there was at all any necessity for entering into the 2nd agreement for execution of pothole repair work and whether the respondent no.4 executed any work at all or false bill was claimed. The third point for determination was whether there was any criminal conspiracy between the accused persons and undue official favour was shown to the Respondent no.4 for making payment of Rs.1,50,000/- to him by showing false execution of pothole repair work. The fourth point for determination was whether there was any forgery in respect of documents/records like pothole repair estimate of Rs.4,91,800/-, agreement entered into with the Respondent no.4.

With respect to first point, this Court observed that from the relevant provision of Para 3.5.30 of O.P.W.D. Code, Vol.I and clause 4 of the conditions of contract (Ext.10), it was clear there was no application for extension of time submitted by the 1st contractor either prior to 31st August, 2004 or after that, it is to be held that the contract as per 1st agreement executed with the contractor Arun Kumar Choudhury was not in force when the 2nd agreement was executed on 10th September, 2004 vide Ext.21 with the respondent no.4 for potholes repair works.

With respect to the second point, the Court observed that after execution of the agreement under Ext.21, the Respondent no.4 executed the pothole repair work and submitted the first running bill which was passed for Rs.1,50,000/- and it cannot be said that he raised any false bill merely because the pothole repaired work was done manually even though he could have utilized machine as per specification in the tender but since it was the running bill, it cannot be said that no pothole work had been done by the respondent no.4 and that he was a dummy contractor only on paper and that it was a sham work and that the accused persons prepared false bills and vouchers to misappropriate the Government money.

With respect to the third point, the Court observed that there was no material also on record that there was any inflated cost or any loss to the Government and specifically in view of the evidence that the part bill paid to Respondent no.4 was calculated on the basis of repair through machine though the work was actually executed manually. Therefore, the Trial Court had rightly held that the prosecution had failed to bring home the charge under section 120-B of the IPC against the accused persons.

With respect to the fourth point, the Court observed that the prosecution had not adduced any satisfactory evidence that any of the documents like agreement entered into with the Respondent no.4 or M.B. No.1311 or the pothole repair estimate are false documents and that the accused persons prepared such documents for the purpose of cheating. Consequently, the Court allowed the appeal of the Appellants and upheld the acquittal of Respondent no.4.

Rajeev Ranjan v. Republic of India

Case Number: CRLA No. 327 of 2016

Date of decision: 9th November, 2022

In this case, the Appellant challenged the order of sentence and judgement of conviction passed by the Learned Special Judge (C.B.I.), wherein he was convicted for offences punishable under Section 7 and Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The Appellant while working as Tax Assistant at the Income Tax Office, Ayakar Bhawan, Rourkela was accused of having demanded Rs.8,000/- from the complainant Manoranjan Mishra in the office for processing the refund claim of the income tax assessee Smt. Sudaramani Singh for the year 2010-11 and accepted the said amount of Rs.8,000/- on 12th March 2012 as gratification other than legal remuneration.

The Appellant contended that that prior to the alleged occurrence, one Bibek Dasgupta (“B.D. Gupta”) had taken Rs.10,000/- as loan from him and as the said loan amount was not repaid to him, there was misunderstanding and ill-feeling between him and B.D. Gupta. P.W.11 (Complainant) was a land broker and he was set up by B.D. Gupta to handover the tainted money stating that the same had been sent by B.D. Gupta towards part repayment of the loan amount.

On the other hand, the Respondents submitted that the evidence on record not only proved the demand of bribe money but also the acceptance of bribe money. Moreover, the nonexamination of B.D. Gupta by the prosecution, does not in any way affect its case as he was not a material witness for the prosecution.

This Court observed that since the complainant had given prevaricating and inconsistent statements at different stages, it was difficult to accept him as a truthful and reliable witness. The Court placed reliance on Suraj Mal v. The State (AIR 1979 SC 1498), and held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances, no conviction can be based on the evidence of such witnesses. The Court remarked “Since the prosecution relies only upon the version of P.W.11 regarding the demand aspect of Rs.8,000/- prior to the date of trap, it cannot be said that the same has been proved beyond all reasonable doubt.” It was further held that no work was pending with the appellant to raise the demand for bribe as a Tax Assistant had no role in the refund of income tax to the assessee except processing the same to the I.T.O. Accordingly, the criminal appeal was allowed and 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 was set aside.