SURENDRA NATH SAHU Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE accused, Appellant in Criminal Appeal No. 144/66, stands convicted under Section 161, Indian Penal Code and sentenced to undergo rigorous imprisonment for two years by the judgment of the Special Judge, Cuttack -Dhenkanal, in Special Case No. 1 of 1965. As the accused was acquitted on benefit of doubt, of the charge under Section 5 of the Prevention of Corruption Act, the State of Orissa preferred Govt. Appeal No. 26 of 1966 against the said order of acquittal. The above Crl Appeal No. 144/66 preferred by the accused, and Govt. Appeal No. 26/66 preferred by the State of Orissa were heard analogously and this judgment would govern both the above two appeals.

(2.) THE salient features of the prosecution case are as follows: The Appellant was appointed as an Amin in the Settlement Department on a monthly pay of Rs. 70/ - and D.A. of Rs. 15/ -, and he was working in the Nuagan Camp. He was entrusted with the duty of preparation of maps and record -of rights. While working as such he demanded illegal gratification of Rs. 20/ - from p.w. 1, Alekh Moharana, for doing his Yadast work. p.w. 1 informed the Vigilance Police Station at Cuttack by his report Ext. 1 which was treated as the F.I.R. in this case. On this, p.w. 24 the Vigilance Inspector with p.w. 29 the Vigilance Circle Inspector, who was authorised by the Vigilance S.P. to investigate into the matter, arranged a trap and proceeded to investigate into the matter. p.w. 1 produced two ten -rupee notes (M.Os. I & II) and six Kabalas in which Yadast work was to be done, before the investigating officers. The numbers of the two ten -rupee currency notes were noted in the preparation report Ext. 2, and the investigating staff with p.w. 1 and a few other witnesses proceeded to the house of Brahmananda Parida (d.w. 1) in village Ballnsa, where the accused with other settlement staff was camping. On reaching the place the investigating staff with some of the witnesses took their stand outside the compound gate of the house of Brahmanands. (d.w. 1), and p.w. 1 went inside the room where the accused was working. p.w. 1, on being asked by the accused for the money for his work, handed over the two ten -rupee currency notes and the six Kabalas to the accused, who accepted the same and kept the two currency notes in his waist cloth. Just then the police officers with the other witnesses entered the room, and p.w. 29 confronted the accused, who was then making the entries in the Yadast register (Ext. 14) for p.w. 1, about the money paid to him by p.w. 1. The accused immediately denied the payment whereupon his person was searched, and the same two ten -rupee currency notes (M.Os. I and II) were recovered from his wrist cloth, which were seized as per Seizure List Ext. 6. Thereupon the other belongings of the accused at that place were searched, and Rs. 36. 85 ps. and Rs. 846 and odd were recovered respectively from his shirt pocket, and from his box in the said room. The Kabalas of p.w. 1 were also seized. On further investigation it was also found that the accused, as a habit, demanded, and accepted illegal gratification, ranging from Rs. 6/ - to Rs. 60/ -, from other persons such as p.ws. 2, 3, 6 to 10, 12 to 14, 16, 17 and 19, for doing their work. These payments were received by him during the period of his appointment between 7 -3 -1964 and 18 -6 -1964. On the above facts charge -sheet was filed against the accused, and charges both under Section 161, Indian Penal Code and Clause (a) of Sub -section (1) of Section 5 of the Prevention of Corruption Act, 1947, punish able under Section 5 (2) of the said Act were framed against the accused, and he was tried and convicted of the former and acquitted of the latter as stated above.

(3.) I will first deal with the charge against the accused under Section 161, Indian Penal Code on which he stands convicted. Mr. Behura, the learned Counsel for the accused, at first contended that the presumption which arose against the accused under Section 4 of the Prevention of Corruption Act could not dispel the presumption of innocence in favour of the accused, and as such it could not be said that the offence of bribery should be held to be established on the mere proof of the fact that some money which was not the legal remuneration was received by the accused, without further proof that the money was accepted for corrupt purposes. It was also contended that to dispel the burden placed on the Appellant under Section 4 of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act), all that he was to do was to offer a probable explanation, which he did by his deposition on oath supported by the evidence of d.w. 1. In support of his above contentions he cited the view of Panigrahi J. on this point in Minaketan Patnaik's case : A.I.R. 1952 Ori 267, with which Narasimham J. expressed his disagreement.