Kailash Chandra Sahu vs State of Orissa

R.C. Patnaik, J.—This appeal arises from a decision of the Special Judge, Vigilance, Sambalpur convicting the Appellant u/s 161 of the Indian Penal Code and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act and sentencing him to undergo R. I. for one year u/s 161. Indian Penal Code and S. I. for one year and to pay a fine of Rs. 500/. in default to undergo R. I. for three months u/s 5 (2) of the Prevention of Corruption Act with a direction that the substantive sentences were to run concurrently.

The Appellant was working as a Sub-Inspector of Excise at Nawrangpur in the district of Koraput in July, 1980. P. Maleswar Rao (p.w. 2) had been granted a licence to deal with Mahua flowers. As licensee, he was to submit monthly statements to the Appellant who was to scrutinise and forward the same to the Superintendent of Excise. When monthly returns for the months of March and April, 1980, were submitted to the Appellant by p.w. 2, he told him that unless he� was� paid at the rate of Rs. 25/- per return, he would not accept the same. Towards end of June, 1980, p.w. 2 submitted his returns for the months of April and May. But the Appellant it is alleged, did not accept the same and told him that unless Rs. 100/- was paid as Mamul, the returns should not be accepted by him. Though p.w. 2 pleaded for reduction of the amount, the .Appellant did not pay any heed thereto. P. w. 2 then made a report to the Inspector of Vigilance at Nawrangpur on 4-7-1980. The report was treated as F. I. R. and trap was laid. It was proposed that p.w. 2 accompanied by witnesses would offer to the Appellant at his residence and when the money was paid on receiving signal from them the raiding party would appear at the scene. Pursuant to the scheme the usual paraphernalia of laying a trap was gone through. Particulars of the currency notes which were to be paid were noted in presence of a Magistrate. The currency notes were sprinkled with phenolphthalein power etc. Preparation report as per Ext. 1 was prepared and then the raiding party proceeded towards the Office-cum-residence of the Appellant. It is alleged that after the money was paid by p.w. 2. signal was given and the members of the raiding party rushed to the spot. When confronted the Appellant denied to have received any money and his hand was deeped into sodium carbonate solution which turned pink. The wash was preserved in a sealed bottle. The Appellant then brought out the currency notes from the fold of his lungi but instead of handing over to the Inspector of Vigilance threw them on the floor. The number appearing on the currency notes were compared. The same tallied with the numbers already taken down at the stage of preparation. Then the other relevant documents like monthly returns and the currency notes were seized. Detention report Ext. 1 was prepared. After obtaining sanction of the competent authority charge-sheet was filed.

The prosecution examined eleven witnesses of whom the complainant-licensee was examined as p.w. 2 and the witness who accompanied him was examined as p.w. 1.

In his defence, the Appellant refuted that he had received Rs. 100/- as illegal gratification. His positive case was that he was under orders of transfer and the staff of the officer was arranging a fare-well party. P. w. 2 asked him to handover Rs. 100/- in the office but he had not asked the complainant to make any contribution or pay subscription. He might have been requested by some members of the staff. Though he had refused to accept, the complainant placed the currency notes on his table. So he tucked the two currency notes in his lungi. He examined a constable in support of his defence who deposed that the Appellant was under orders of transfer. To defray the expenses at the fare-well party members of the staff as well as excise vendors were asked to make contributions. He further deposed that excise vendors used to attend such farewell parties. P. w. 2 had been asked to contribute for the farewell party of the Appellant. The farewell party was to take place at Indravati dam site on 6-8-1980.

At the trial the complainant and the witness who accompanied him did not support the prosecution. The learned Special Judge relying upon the circumstances leading to the trap and the -recovery of the currency notes from the .Appellant and the evidence of the members of the raiding party and drawing adverse inference u/s 4 (1) of the Prevention of Corruption-Act convicted the Appellant as aforesaid.

Mr. Misra, the learned Counsel for the Appellant has urged that the two vital witnesses namely the complainant and the witnesses who over-heard the conversation between the complainant and the Appellant relating to the alleged payment of bribe not having supported the prosecution case at the trial the trial judge went wrong in convicting the Appellant on the basis of the earlier written report made by the complainant whereupon the trap was organised and the recovery of currency notes was made from the Appellant. The trial Court should have held that having regard to the positive version of the arch witnesses the defence plea that the amount was paid by the complainant as subscription for the farewell party of the Appellant .should have been accepted as probable. In any view of the matter on the evidence there was no justification for application of Section 4 (1) of the Corruption Act.

That fact that a complaint had been presented to the Vigilance is not disputed. That a trap was arranged is beyond disputed that particulars of the currency notes were noted and those were processed through Phenolphthalein power go uncontroverted. That the complainant paid Rs. 100/- to the Appellant is admitted. Having regard to the fact that the receipt of the amount is admitted the paraphernelia which went prior to the laying of the trap falls into insignificance. The question is was the amount paid as bribe or was it paid for the purpose as pleaded by the defence. Assuming Section 4 (1). applied, the enquiry is the same, namely, if the same has been rebutted by the defence.

The earlier report of the complainant or the steps taken by the raiding party in the laying of the trap are mere circumstances. But there is a yawning gap in the prosecution case, i.e.. the gap between the arrival of the raiding party and the recovery of the notes. That is to say as to what transpired when the complainant met the Appellant. The witnesses are P.Ws. 2 and 3. P. w. 2 has positively stated that the accused did not demand any bribe from him when he submitted returns for the months of February and March. nor did he demand Rs. 100/- from him for the subsequent month, nor did he tell that unless he was paid Rs. 100/- his licence would be cancelled nor was there any bargain for reduction of the amount. He submitted a report at the behest of his father who stated that the Appellant was taking bribe at the rate of Rs. 5/- from others. His positive version was that when he handed over the money to the Appellant towards his subscription to the farewell party, the Appellant initially did not touch them asking him to hand over the money to the office staff. He accepted the amount only when the complainant insisted on his acceptance. The other important witness is p.w. 3 who accompanied the complainant. He stated in his cross-examination that the complainant (p.w. 2) asked the Appellant to keep the money towards subscription for his farewell party as desired by the office. The Appellant requested p.w. 2 to hand over the money in the office but p.w. 2 insisted that the Appellant should keep the money. The learned Special Judge has recorded a finding that the previous demand of bribe by the Appellant was not proved by direct evidence of the complainant, p.w. 2. The other witnesses are witnesses to the events that happened after the money was handed over to the Appellant. Since the recovery is not disputed, the evidence is of not much consequence. �In the absence of any evidence that the Appellant had demanded any bribe from p.w. 2 and in view of the fact that the defence plea has been corroborated by P.Ws. 2 and 3, it is difficult for me to uphold the conviction of the Appellant. The learned trial Judge failed to notice that on the rejection of the evidence of P.Ws. 2 and 3 there remained little to sustain the prosecution case. So many jerks and jolts had been given to the prosecution case by P.Ws. 2 and 3 that it was impermissible to sustain the conviction on the basis of the presumption u/s 4 (1). In view of the evidence of P.Ws. 2 and 3, I fail to see why the defence plea as taken by the Appellant in his examination u/s 313 of the Code of Criminal Procedure as well as through the evidence of d. w. 1 should be rejected. It has been observed;

...mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable...

In the result, I accept the appeal and set aside the judgment of the Court below convicting the Appellant u/s 161, L P. C. and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act and the sentences imposed the rounder and acquit him.