KISHORE KUMAR SWAIN Vs. STATE OF ORISSA

JUDGEMENT

(1.) 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.

(2.) 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.

(3.) 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.