STATE vs SURENDRA NATH NAYAK

THE HIGH COURT OF ORISSA AT CUTTACK
CRLLP No.138 of 2012

CNR No.ODHC010059182012
(In the matter of an application under Section 378 of the Criminal
Procedure Code, 1973 )

State of Orissa (Vigilance) Petitioner
…….

-Versus-
Surendra Nath Nayak Opposite Party
…….

For the Petitioner : Mr. Sangram Das, SC (Vigilance)

For the Opposite Party : Mr. S.K. Mishra, Advocate

CORAM:
THE HONOURABLE SHRI JUSTICE SIBO SANKAR MISHRA

Date of Hearing: 17.09.2026 : Date of Judgment: 31.10.2026

S.S. Mishra, J. The present appeal is directed against the judgment
of acquittal dated 08.11.2011 passed by the learned Special Judge,
Special Court, Cuttack in T.R. No.3 of 2008, whereby the respondent-
accused was acquitted of the charge under Section 13(1)(e) read with

Section 13(2) of the Prevention of Corruption Act, 1988 and Section
8(3) of the Orissa Special Courts Act, 2006.

2. Heard Mr. Sangram Das, learned Standing Counsel (Vigilance) for
the petitioner and Mr. S.K. Mishra, learned counsel for the opposite-
party.
3. The prosecution case, in brief, is that the respondent entered into
Government service on 03.09.1956 as a Forester. He was promoted to
the rank of Ranger in the year 1962, to the post of Assistant Conservator
of Forests in June, 1974 and thereafter to the rank of Divisional Forest
Officer in the year 1984. During the course of vigilance investigation,
searches were conducted on 25.03.1990 at the residential house of the
respondent at Sribihar Colony, Tulasipur, Cuttack, at his village house at
Badahantuada and at his office at Tulasipur, Cuttack. In the course of
such search, movable and immovable properties were found and the
income and expenditure of the respondent and his family were assessed
for the relevant check period.
4. According to the prosecution, the total assets of the respondent
during the check period were initially calculated at Rs.7,81,248.27. The

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expenditure was assessed at Rs.4,89,330.17 and the income at
Rs.6,83,664.09. On that calculation, the likely savings were assessed at
Rs.1,94,333.92 and the alleged disproportionate assets were calculated at
Rs.5,86,914.35. Since the respondent allegedly failed to satisfactorily
account for the difference, the Vigilance Cell, Cuttack lodged the FIR on
30.03.1990 and investigation was taken up.
5. During investigation, the Investigating Officer examined
witnesses, collected the pay particulars of the respondent, seized relevant
documents, obtained information concerning the consumer expenditure
of the respondent and his family, caused valuation of the properties to be
made and collected particulars regarding various deposits and other
assets. Upon completion of investigation, charge-sheet was submitted
against the respondent for the offence punishable under Section 13(1)(e)
read with Section 13(2) of the Prevention of Corruption Act.
6. In order to establish its case, the prosecution examined 21
witnesses. The respondent examined five witnesses in defence and also
examined himself as D.W.2.

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7. Upon appreciation of evidence, the learned trial Court initially
accepted the legal position that the prosecution was required to establish
that the public servant was, at any time during the relevant period, in
possession of pecuniary resources or property disproportionate to his
known sources of income and that, once such possession was
satisfactorily established, the burden shifted upon the public servant to
account for the same. However, while recalculating the income,
expenditure and assets, the learned trial Court excluded substantial
amounts relating to the properties and financial transactions attributed by
the prosecution to the respondent's father. The learned trial Court held
that the prosecution had failed to establish that the land and building at
Sribihar Colony, Tulasipur and the building at Badahantuada belonged to
the respondent or that they had been acquired by him in the name of his
father as benami properties. The learned trial Court further accepted
certain claims regarding agricultural income of the respondent's wife and
income from sale of coconuts, while rejecting the claim of income from
dairy business and the alleged house rent from the Nayapalli property.
The expenditure towards food, clothing, fuel and footwear was also

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substantially reduced from the prosecution calculation. Upon such
recalculation, the learned trial Court assessed the known income at
Rs.4,54,112.13, expenditure at Rs.2,25,707.80 and assets at
Rs.2,11,493.27. It accordingly found that the respondent had likely
savings of Rs.2,28,404.33, which exceeded the assets allegedly held by
him at the end of the check period, leaving no unexplained assets. On
that basis, the learned trial Court concluded that the prosecution had
failed to establish disproportionate assets and acquitted the respondent.
The relevant part of the aforesaid judgment is reproduced herein for
ready reference:-
21. Thus on a careful consideration of the entire
“
evidence adduced by the prosecution, I find that the
prosecution failed to establish that the pecuniary
Assets acquired by the accused are disproportionate
to his known sources of income. As such accused
cannot be liable for committing the offence u/s
13(1)(e) of the Prevention of Corruption Act
punishable u/s 13(2) of the Act or u/s 8(3) of the
Orissa Special Courts Act 2006.
22. In the result, the accused is found not guilty for
the said charge and is acquitted thereunder. He be
discharged from his bail bond.
”

8. The learned counsel for the petitioner-State contended that the
learned trial Court committed an error in placing reliance upon the

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Income Tax Returns filed by the father and wife of the accused, though
such returns were admittedly filed after the search conducted by the
Vigilance authorities. According to learned counsel, the said documents
were post facto documents and could not have been relied upon to
explain the assets or income during the relevant check period. It is
further submitted that the plot of land at village Badahantuada standing
in the name of the wife of the accused had in fact been purchased by the
accused and, without there being adequate evidence to establish that the
retired father of the accused had constructed the building thereon from
his own independent resources, the learned trial Court erred in accepting
the defence version. Learned counsel submitted that the financial
capacity of the father and the circumstances surrounding acquisition and
construction of the property were not properly appreciated by the
learned Court below.
9. It is further submitted that the learned trial Court erred in
extending undue benefit to the accused by enhancing the agricultural
income from Rs.18,963.96/- to Rs.39,900/- and by adding a further sum
of Rs.8,000/- towards income from sale of coconuts allegedly derived by

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the wife of the accused, though no cogent and reliable evidence was
produced by the defence to establish such income during the relevant
check period. According to learned counsel, the documents relied upon
by the accused in support of the alleged agricultural income were not
duly proved by any competent witness in Court and, therefore, could not
have been treated as substantive proof of the income claimed. It is
submitted that, on a proper appreciation of the prosecution evidence and
the financial circumstances of the accused, the assets found in his
possession remained disproportionate to his known sources of income.
10. This Court has carefully examined the judgment passed by the
learned trial Court, the reasons assigned therein, and the evidence
adduced by both the prosecution and the defence during trial. This
Court has also considered the grounds urged in the present appeal
and heard the learned counsel appearing for the petitioner-State as
well as the learned counsel for the respondent at length. The rival
submissions have been duly considered in the light of the materials
available on record.

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11. Before interfering with an order of acquittal, this Court is also
required to bear in mind the well-settled principles governing an
appeal against acquittal. In Tulasareddi @ Mudakappa & Anr. v.
State of Karnataka & Ors. , reported in 2026 INSC 67 , the Hon'ble
Supreme Court has reiterated that where two reasonable conclusions
are possible on the basis of the evidence on record, the appellate
Court should not disturb the finding of acquittal recorded by the trial
Court. It has further been held that if the view taken by the trial
Court is a possible view based on the evidence available on record,
the appellate Court cannot overturn the order of acquittal merely
because another view is also possible. Interference is warranted only
when the judgment of acquittal suffers from patent perversity, is
based on misreading or omission of material evidence, or where
compelling and substantial reasons exist showing that the acquittal is
clearly unreasonable. The relevant part of the aforesaid judgment is
reproduced herein for ready reference:-
“29. From the aforesaid decisions rendered by this
Court, it can be said that if two reasonable
conclusions are possible on the basis of the evidence
on record, the Appellate Court should not disturb the

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findings of acquittal recorded by the Trial Court.
Further, if the view taken is a possible view, the
Appellate Court cannot overturn the order of
acquittal on the ground that another view was also
possible. The following principles have to be kept in
mind by the Appellate Court while dealing with the
appeals against an order of acquittal:
(a) whether the judgment of acquittal suffers from patent
perversity;
(b) whether the judgment is based on misreading/omission
to consider the material evidence on record;
(c) an order of acquittal is to be interfered with only when
there are “compelling and substantial reasons” for doing
so. If the order i s “clearly unreasonable”, it is a
compelling reason for interference.
(d) the appellate court, while deciding an appeal against
acquittal, after reappreciating the evidence, is required to
consider whether the view taken by the trial court is a
possible view which could have been taken on the basis of
the evidence on record;
(e) if the view taken is a possible view, the appellate court
cannot overturn the order of acquittal on the ground that
another view was also possible; and
(f) the appellate court can interfere with the order of
acquittal only if it comes to a finding that the only
conclusion which can be recorded on the basis of the
evidence on record was that the guilt of the accused was
proved beyond a reasonable doubt and no other conclusion
was possible.
”

Equally, in Mallappa & Ors. v. State of Karnataka , reported in
2024 INSC 104 , the Hon'ble Supreme Court has held that the
presumption of innocence, which every accused enjoys during trial, gets
strengthened and concretized once the trial culminates in an order of
acquittal. Consequently, while exercising appellate jurisdiction against

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an acquittal, a higher threshold is required to rebut such reinforced
presumption. Unless the findings recorded by the trial Court are
manifestly unsustainable or perverse, the appellate Court ought to
exercise great restraint in upsetting the acquittal. It was held thus:-
“24. We may firstly discuss the position of law
regarding the scope of intervention in a criminal
appeal. For, that is the foundation of this
challenge. It is the cardinal principle of criminal
jurisprudence that there is a presumption of
innocence in favour of the accused, unless proven
guilty. The presumption continues at all stages of
the trial and finally culminates into a fact when the
case ends in acquittal. The presumption of
innocence gets concretized when the case ends in
acquittal. It is so because once the Trial Court, on
appreciation of the evidence on record, finds that
the accused was not guilty, the presumption gets
strengthened and a higher threshold is expected to
rebut the same in appeal.”

12. The appellate jurisdiction against an order of acquittal is,
therefore, not intended to facilitate a fresh substitution of the opinion of
the trial Court merely because a different view on the evidence is
conceivable. As reiterated by the Hon'ble Supreme Court in Tulasareddi
@ Mudakappa & Anr. v. State of Karnataka & Ors. (supra) , the
appellate Court must first satisfy itself that the judgment of acquittal is

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vitiated by patent perversity, misreading or non-consideration of material
evidence, or is so unreasonable that no prudent person could have
arrived at such a conclusion. Equally, as held in Mallappa & Ors. v.
State of Karnataka (supra) , the reinforced presumption of innocence
following an acquittal places a higher threshold upon the appellate Court
before upsetting the findings recorded by the trial Court. Thus, unless the
conclusions reached by the trial Court are wholly unsustainable on the
evidence available on record, judicial restraint rather than substitution of
views remains the governing principle in an appeal against acquittal.
Applying the aforesaid principles to the present case, this
Court finds that the appreciation of evidence by the learned trial Court
cannot be said to be either perverse or wholly unreasonable. Merely
because another view may also be possible, the same cannot furnish a
ground to reverse the acquittal in exercise of appellate jurisdiction.
13. At this distant point in time, the absence of compelling and
substantial reasons warranting interference, reversal of the acquittal
would itself occasion serious prejudice and would be a travesty of

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justice. At this belated stage, presumption of innocence prevailed in
favour of the opposite party for more than 15 years, as he was acquitted
by the Court below. Reversing such presumption at this stage would not
only be harsh, but it would be against the cardinal principle of
reformatory criminal jurisprudence. This Court, therefore, finds no legal
or factual justification to unsettle the well-reasoned judgment of acquittal
passed by the learned trial Court. In view of the aforementioned, this
Court is not inclined to grant leave against the judgment of acquittal
impugned herein.
14. Accordingly, the CRLLP stands dismissed.

(S.S. Mishra)
Judge

The High Court of Orissa, Cuttack
st
Dated the 31 October, 2026/Ashok
Signature Not Verified
Digitally Signed
Signed by: ASHOK KUMAR JAGADEB
MOHAPATRA
Reason: Authentication
Location: High Court of Orissa
Date: 05-Nov-2026 19:59:15

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