KAILASH CHANDRA BABU Vs. STATE OF ORISSA

JUDGEMENT

(1.) -This appeal arises from a decision of the Special Judge, Vigilance, Sambalpur convicting the appellant under section 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 under section 161 I.P.C. and R.I. for one year and to pay a fine of Rs. 500/- in default to undergo R.I. for three months under section 5(2) of the Prevention of Corruption Act with a direction that the substantive sentences were to run concurrently.

(2.) The appellant was working as a Sub-Inspector of Excise at Navarangpur 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 scrutinize 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 and Navarangpur on 4- 7-80. 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 paraphernelia 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 powder 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. Detection report Ext. was prepared. After obtaining sanction of the competent authority, charge-sheet was filed.

(3.) The prosecution examined eleven witnesses of whom the complainant-licensee was examined as P.W. 2 and the witness accompanied him was examined as P.W. 1. In his defence, the appellant refused that he had received Rs. 100/- as illegal gratification. He positive case was that he was under orders of transfer and the staff of the office was arranging a fare-well party. P.W. 2 asked him to hand over 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 of the fare-well party members of the staff as well as excise vendors were asked to make contribution. He further deposed that excise vendors used to attend such farewell party P.W. 2 had been asked to contribute for the farewell party of the appellant. The farewell party was to take place at Inderavati dam site on 6-8-1980,