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Sashi Bhusan Kar. Vs. State of Orissa - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtOrissa High Court
Decided On
Case NumberCriminal Appeal No. 31 of 1982
Judge
Reported in1985(I)OLR504
ActsPrevention of Corruption Act, 1947 - Sections 4(1), 5(1), 5(2) and 6(1); Indian Penal Code (IPC), 1860 - Sections 161; Evidence Act, 1872 - Sections 8 and 133; Code of Criminal Procedure (CrPC) , 1973 - Sections 162 and 164; Constitution of India - Article 166
AppellantSashi Bhusan Kar.
RespondentState of Orissa
Appellant AdvocateP. Palit, R.K. Mohapatra, J. Patnaik and U.C. Panda
Respondent AdvocateA. Rath, Addl. Standing Counsel
DispositionAppeal allowed
Cases ReferredMajor E. G. Barsay v. State of Bombay and I.L.R.
Excerpt:
- state financial corporations act, 1951 [63/1951]. section 29; [p.k. tripathy, a.k. parichha & n.prusty, jj] discharge of loan orissa forest act (14 of 1972), section 56 confiscation of vehicle - held, the authorities under section 56 of the orissa forest act, 1972 are not obliged to release the vehicle from the confiscation proceeding or to pay the sale proceeds of the vehicle after the order of confiscation in favour of orissa state financial corporation when such vehicles were purchased on being financed by the orissa state financial corporation and the loan had not been liquidated by the date of the seizure/confiscation of the vehicle. concept of first charge or second charge has no applicability when the vehicle is not otherwise disposed of to determine the liabilities of the.....b.k. behera, j.1. a senior mining officer, the appellant stood charged under section 5(2) read with section 5(1) (d) of the prevention of corruption act, 1947 (for short 'the act') for having obtained for himself pecuniary advantage to the tune of rs. 2,000/- on april 26, 1979, while functioning as such at joda, from gopinath mohanty (p. w. 2), the manager of murgabeda mines at joda, serving under the mine owner mr. niranjan patnaik (p. w. 8), by corrupt and illegal means and by otherwise abusing his position as a public servant and under section 161 of the indian penal code ('the code' for short) for having accepted the amount of rs. 2,000/- from p. w. 2 as gratification other then legal remuneration with the 'motive for doing or forbearing or for showing favour in the exercise of his.....
Judgment:

B.K. Behera, J.

1. A Senior Mining Officer, the appellant stood charged under Section 5(2) read with Section 5(1) (d) of the Prevention of Corruption Act, 1947 (for short 'the Act') for having obtained for himself pecuniary advantage to the tune of Rs. 2,000/- on April 26, 1979, while functioning as such at Joda, from Gopinath Mohanty (P. W. 2), the Manager of Murgabeda Mines at Joda, serving under the mine owner Mr. Niranjan Patnaik (P. W. 8), by corrupt and illegal means and by otherwise abusing his position as a public servant and under Section 161 of the Indian Penal Code ('the Code' for short) for having accepted the amount of Rs. 2,000/- from P. W. 2 as gratification other then legal remuneration with the 'motive for doing or forbearing or for showing favour in the exercise of his official functions as the Senior Mining Officer posted at Joda.

2. I would narrate briefly the case of the prosecution presented at the trial. After the appellant joined as the Senior Mining Officer at Joda in 1979, he demanded a bribe of Rs. 1, 000/- per month for giving permission to transport iron ores from the Murgabeda Mines of which P W. 8 was the proprietor with P. W. 2 serving under him and this amount was being paid through P.W. 2 to the appellant every month as bribe. This bribe money had been paid at the rate of Rs. 1,000/- per month for month of January, February and March, 1979. In the month of April, 1979, the appellant, it was alleged, demanded an increased sum of Rs. 2, 000/-per month as bribe and insisted on it in spite of the fact that P. W. 2 had expressed before the appellant that owing to the financial position of the mines, he would not be in a position to pay that amount to him. The appellant threatened P.W. 2 that he would close the mines and would not permit transport of iron ores and insited on the payment of a monthly bribe at the rate of Rs. 2,000/- per month. This was on April 25, 1979. On that day, P. W. 2 went to Keonjhar and met the Superintendent of Police, Vigilance and lodged the first information report (Ext. 1) before him. The Superintendent of Police, Vigilance (not examined), on receiving the report, asked P. W. 2 to wait. On the day of following, the Inspector of Vigilance at Keonjhar (P. W. 10) with the Executive Magistrate (P. W. 9) and the other members of his staff went to the Murgabeda Mining Office of Mr. Niranjan Patnaik (P. W. 8) and picked up Uma Shankar Mohanty (P. W. 3) to figure as a witness to the trap. P. W. 2 produced twenty one hundred rupees currency notes (M.Os. V to XXIV) and P. W. 10 made a preparation report (Ex. 11) wherein he noted down their numbers. The executive Magistrate (P.W. 9) also noted down the numbers of the currency notes. A Sub-Inspector of Vigilance (P. W. 7) gave a demonstration of the reaction of sodium carbide solution coming in contact with phenolphthalcin powder and thereafter treated the currency notes with that powder and kept them in the shirt pocket of P. W, 2. P. W. 2 was instructed to pay the amount to the appellant and the over-hearing witness (P. W. 3) was instructed to give a signal to the raiding party after witnessing the payment of the bribe money to the appellant. Thereafter P. Ws, 2 and 3 proceeded in a jeep towards the office of the appellant being followed by the members of the raiding party P. W. 2 entered the office room where the appellant had been sitting alone and P. W. 3 remained at the door of that room to hear the conversation between P. W. 2 and the appellant and 'to watch the payment of the bribe money. The appellant asked P.W. 2 if he had brought the amount and P. W. 2 replied in the affirmative. The appellant then stretched out his hand and P.W. 2 handed over M. Os. V to XXIV to the appellant after 'bringing them out which the appellant kept in his brief case (M. O. II). P. W. 3 then gave a signal to the raiding party. Immediately thereafter, the raiding party consisting of the Inspector of Vigilance (P. W. 10) and the executive Magistrate (P. W. 9) besides others, came to the room of the appellant, where P. W. 10 introduced the other members of the raiding party to the appellant and charged him that he had received Rs. 2,000/- from P. W. 2 as bribe and demanded that he should produce the amount. The appellant refused to have accepted any bribe money. The appellant was then asked to give his hand wash with the sodium carbide solution and the colour of the handwash turned pink. The handwash was preserved in a bottle. The appellant become nervous and could not speak anything. P. W. 2 gave out that he had made over the currency notes to the appellant who had kept them in his brief case. P. W. 10 opened the brief case (M. O. II) which bad not been locked and picked out M.Os. V to XXIV and on comparison the numbers of those currency notes tallied with the numbers .4 noted by P. W. 9. P. W. 10 also compared the numbers of the currency notes with the numbers mentioned by him in the preparation report and found that the numbers tallied. The currency notes (M. Os. V to-XXlV) were seized as per Ext. 3, the seizure list. The appellant, it was alleged, did not offer any explanation as to how, he came to possess M. Os. V-to XXIV. A detection report (Ex. 2) was prepared by P. W. 10. Investigation followed. The prosecution of the appellant was sanctioned by the sanctioning authority as per Ex. 16, the sanction order A charge-sheet was placed resulting in the prosecution of the appellant being charged as stated above.

3. To bring home the charges to the appellant, the prosecution had examined eleven witnesses. Of them, P. W. 8 was the mine owner and P. W. 2 was his Manager. P. W. 3 was the over-hearing witness who had witnessed the transaction of handing over the bribe money of Rs. 2,000/- to the appellant and the receipt of that sum by latter. W. 1, the Inspector of Vigilance at Sambalpur, had formally registered a case on the basis of the first information report (Ex. 1) lodged by P. W. 2 before the Superintendent of Police, Vigilance at Keonjhar which had been forwarded to the Vigilance Police Station at Sambalpur. P. W. 4 the Senior Inspector of Mines at Joda, was present with the appellant when the raiding party including P. W. 10 came to his room and demanded production of Rs. 2,000/- received by the appellant as the bribe money from P. W. 2. P. W. 5, the Senior Inspector of Mines in the office of the appellant, had proved some entries made in the Minute Book of the Recreation Club (Ex. A) with regard to some collection for the Club and he had spoken about some interpolations made therein at the instance of the appellant. This evidence had been led by the prosecution to demolish the theory of the defence that the amount of Rs 2,000/- had not been received by the appellant as bribe money, but as the previously promised donation amount from P. Ws. 2 and 8 for the Club P. W. 6, a Building Inspector, had merely prepared a spot map (Ex. 8) locating the office room of the appellant and giving the positions of the different witnesses at the time of commission of the offence. As earlier indicated, P. W. 7 was a Sub-Inspector of Vigilance. Mr. Niranjan Patnaik (P. W. 8) had spoken about the payments of bribe money at the rate of Rs. 1,000/- to the appellant for three months and the receipt of information from P. W. 2 regarding the trap laid in respect of the payment of Rs. 2,000/- to the appellant on April 26, 1979. P. W. 9 was the Executive Magistrate who had accompanied the raiding party. P. W. 10 was the Inspector of Vigilance who conducted the raid and had investigated into the case. P. W. 11, the Special Secretary in the Political and Services Department of the Government of Orissa at Bhubaneswar in March, 1980, had spoken about the sanction for the prosecution of the appellant.

4. The appellant had denied to have received bribe money at the rate of Rs. 1,000/- for the months of January, February and March, 1979, as alleged by the prosecution. He had also denied to have accepted Rs. 2,000/- as bribe money on April 26, 1979. His defence was that he received Rs. 2,000/- from P. W. 2 as a donation for the drama and publication of a souvenir and towards the child welfare fund on the occasion of the International Children Year. He had admitted the recovery of Rs. 2,000/- from his brief case by the Inspector of Vigilance. Speaking as to how and why a false case had been foisted against him, the appellant had, in his statement recorded at the trial, stated :

'I joined as a Senior Mining Officer at Joda in September, 1378.I was in over all charge of all the mines in the district of Keonjhar supported by various technical staff. Murgabeda Mines of Niranjan Patnaik is a very small mine having outlet for sale of 500 tonnage of iron ore. During my tenure, I have not visited that Mine due to lack of time. During February, 79, G. N. Mohanty (P. W. 2) met me and requested me to submit a favourable report along with necessary plans regarding availability of 30 acres area of Murgabeda Mines to Niranjan Patnaik which had arisen due to a writ petition filed by one K. Sarada against State and Central Government as well as Niranjan Patnaik, contending therein that the area settled in favour of Niranjan Patnaik was actually not available in the field since no area gap was available between his area and M. L. area of Md. Sirajuddin. I told Mr. Mohanty that whatever is the records and whatever would be truth and justice, a report would be accordingly sent to the Govt. for filing counter in the High Court. I had mentioned also that the prior records cannot be changed either by me or by my supporting technical staff. On hearing this, he again requested for a favourable report with payment of money to me as directed by his proprietor, Niranjan Patnaik. On hearing this, I took it as an offence and asked him to get out of my office and also not to come to me again on this issue. In fact in the earlier group plan of 61-64, maintained in Joda Mining Office, no area was actually available to Niranjan Patnaik.

During March,'79,1 could come to know that Iron ores of Murgabeda Mines were being transported in the name of Kalaparbat Mines of B. B. Patnaik, maternal uncle of Niranjan Patnaik. I had stopped the illegal dispatch of the iron ores for a period of four days pending investigation into the matter. The Inspector of Mines investigated and found the fact to be true. Accordingly a report was sent to the Director of Mines for approval.

During my tenure, I have neither created nor caused to have created any hindrance for the mining and transport of iron ores of Murgabeda Mines. There was neither fovour nor disfavour on this score.'

The appellant had examined three witnesses in his defence.

5. On a consideration of the evidence adduced from both the side the learned special accepted the case of the prosecution, rejected the plea of the defence and held that both charges had been established; The appellant was accordingly convicted. He was sentenced to undergo rigorous imprisonment for a period of one year under Section 5(2) read with Section 5(1) (d) of the Act. No separate sentence was passed against him for his conviction under Section 161 of the Code.

6. Appearing on behalf of the appellant, Mr. Palit has contended that the entire allegations made against the appellant by the prosecution are false and fabricated in order to foist a false case against him. The investigating agency has not been fair in laying the trap in the manner it did, by procuring a highly interested witness (P. W. 3) as the over hearing witness and the prosecution has sought to establish its case by the evidence of accomplices and partisan witnesses whose testimony deserved no credence, as urged by him. It has been submitted on behalf of the appellant that the evidence both from the side of the prosecution and the defence would clearly indicate that the plea of the defence was a reasonable and probable one and that the sum of Rs. 2,000/- had never been paid to the appellant as bribe money. Mr. Palit has contended that P. W. 11 had no authority to sanction the prosecution of the appellant and even otherwise the prosecution of the appellant was invalid owing to want of valid sanction as required by Section 6 the Act. Mr. A. Rath, the learned Additional Standing Counsel has, however, submitted that there had been no infirmity in the prosecution evidence which conclusively established the two charges and sanction had duly been accorded for the appellant's prosecution.

7. The contentions raised by the learned counsel for both the sides except with regard to the question of valid sanction are to be examined keeping in mind the, background of the case prior to the laying of the trap, the nature and character of the prosecution evidence on which the prosecution sought to build its case and the object of the Act and the scope of Section 161 of the Code.

8. In order to substantiate its case, the prosecution has to establish that the appellant, by corrupt or illegal means or by otherwise abusing his position as a public servant-obtained for. himself or for any other person pecuniary advantage to the tune of Rs. 2,000/- in order to make his act culpable under Section 5(2) read with Section 51)(d) of the Act. To bring home the charge under Section 161 of the Code, the prosecution has to establish that being a public servant, the appellant had accepted or obtained for himself or for any other person any gratification other than legal remuneration, as a motive or reward for doing or for bearing for do any official act or for showing or for bearing to show in the Exercise of his official function favour to P. Ws. 2 and 8 or for rendering or attempting to render any service to them. The Act. has been enacted to make effective provision for the prevention of bribery and corruption The provision of the Act must receive such construction at the hands of the Court as would advance the object and purpose underlying the Act and not to defeat it, (See AIR 1984 S.C. 684, R.S. Nayak v. A.R. Antulay) While an act of, acceptance of illegal gratification, roust be condemned with a very, heavy hand, the charge against a, public, servant, must be established by evidence clear and cogent, true and trustworthy.

9. It must be kept in mind, while' judging the' prosecution evidence and in particular, that of the decoy witnesses (P. W. 2) and that of his master (P. W. 8) that it was not a case where the trap had been laid at the first instance of the demand for bribe by the appellant and being unwilling to gratify the appellant, 3 trap, had been laid by thorn, but on their own showing, the appellant was being paid bride money at the rate of Rs. 1000/- per month for the first three months in the year 1979 and when the appellant wanted to harass them by increasing the monthly bribe amount by Rs. 1,000/- more and asking for the payment at 1 the rate of Rs. 2,000/- to show favour in his official capacity, the trap was laid by P.W.2 Although according to this witness he informed his master (P. W.8) after the trap was laid and it succeeded and this was also the evidence of P.W. 8 it was, highly unlikely that a manager could have taken such an important step against a public servant to whom P. Ws. 2 and 8 were looking for favour without keeping P. W. 8 informed about it. Weather the amount of Rs. 2,000/- had been paid on April 26, 1979, as bribe money laying, the trap or an contribution for the Recreation Club was best known to the appellant and P.W.2 and 8 and it was P. W. 2 Who had paid the money. In this context, the evidentiary credentials of P.Ws. 2 and 8 assume great importance. The question is whether they are fitnesses of' truth and their' evidence would inspire confidence of a Court of law.

10. As earlier indicated when the appellant joined as the Senior Mining Officer, P. W.2 was functioning as the Manager in the Iron Ore Mines of Mr. Niranjan Patnsik {P. W.8) who had been operating the mines as a lessee at the time of receipt of gratification and who latter became a Minister of State in the Council of Minister of this State. When he deposed in the Court of trial, he was a Minister of State and he is now a Minister of Cabinet rank in this State. His Manage (P. W. 2) had testified :

' The accused has joined as Senior Mining Officer about 1 months prior to the occurrence. After joining the accused was Senior Mining Officer at Joda, the accused demanded a bribe of Rs. 1000/- per month so that he will give permission to transport iron ores from our mines. I paid at the rate of Rs. 1000/- per month as bribe for a period of 3 months to the accused. I paid bribe to the accused at the rate of Rs. 1000/- per month for a period of three months to the accused for January, February and March, 1979. In the month of April, 1979 the accused demanded a sum of Rs. 2000/- from me as bribe. I told the accused that my financial position of the iron mine does not permit me to pay bribe at the rate of Rs. 2000/- per month. I told the accused that I could not reflect the same in the account. The accused insisted for the payment.

On 25.4.1979, I met the accused at about 7 A. M. On that day I told the accused that I cannot pay bribe at the rate of Rs. 2000/- per month to the accused. Thereafter the accused threatened me that he would close the mine and that he will not permit me to transport the iron ore from the mines. The accused insisted that I have to pay bribe at the rate of Rs. 2000/- per month. As the accused insisted I told the accused that I will pay the amount of Rs. 2000/- on 26.4.1979. I heard on 24.4.1979 that S. P. Vigilance, Sambalpur was camping in the I. B. of Keonjhar. The S. P. Vigilance was known to me previously. On 25.4.1979 at about 8 A. M. I started in my jeep and went to Keonjhar. I reached Keonjhar at about 9 A.M. on 25.4.1979. I met the S. P. Vigilance and told him about the demand of the accused. The S. P, Vigilance asked me to give a report in writting. Ext. 1 is the F. I. R. which I have lodged and the same is in my hand writting. Ext. 1/3 is my signature. The S. P. Vigilance after receiving my report asked me to be present in my office at 9. A. M. on 26.4.1979.'

This witnesses then went on deposing as to , how the trap was laid and the appellant was caught with the bribe money of Rs. 2000/-. Me had, in his cross-examination, stated :

'...I did not pay any bribe previously and for the first time I began payment of bribe to the accused when he joined as Senior Mining Officer. Prior to the accused no other officer asked me for payment of the bribe. I told Niranjan Patnaik about the payment of Rs: 3000/- to the accused at the rate of Rs. 1000/- P. M. and also I told Niranjan Patnaik about the payment of Rs. 2000/- in question to the accused. Niranja, Patnaik asked me to pay the bribe to the accused. In January, 1 1979 I told Niranjan Patnaik that the accused is demanding a bribe of Rs. 1000/-per month. I was paying this Rs. 1000/- to the accused from my own amount. ...'

xx xx xx

'... This payment of Rs. 1000/- P. M. is reflected in my accounts. So also the payment of Rs. 2000/- to the accused at the time of the occurrence is also reflected in my accounts....'

This witness had further stated in cross examination that in the books of accounts and in his personal account book, the payment of bribe money of Rs. 1000/- per month has been shown under miscellaneous expenditure. The for said statements made by P. W, 2 in his evidence at the trial would undoubtedly indicate that to the knowledge and with the approval of his master (P. W, 8), he (P. W. 2) had been paying Rs. 1,000/- per month to the appellant as bribe and as his evidence would show, P. Ws. 2 and 8 were willing participants in the matter of paying a monthly bribe amount to the appellant on his demand after he joined as the Senior Mining Officer. There was no evidence to indicate that this illegal gratification of Rs. 1,000/- per month was being paid under coercion and fear of harassment at the hands of the appellant. As a matter of fact, no particular instance of coercion or harassment by the appellant had been established from the side of the prosecution through the evidence of P. Ws. 2 and 8.

11. Mr. Niranjan Patnaik (P. W. 8) had, in his evidence, stated:

'...My Manager used to tell me that the accused was out to harass us unless payments are made to him every mouth. I told him to some how manage the matter and not to pick quarrels with the accused. In March, 1979 the Manager told me that he bad already spent Rs. 3000/- in meeting the demands of the accused and since I was satisfied that my Manager had spent the amount I showed the , expenditure in impressed accounts of the Manager. On 27. 4. 19.79 I learnt from my . Manager that a trap-had been laid on the accused and that he had paid the amounts of Rs. 2000/- for laying the trap. ...'

These statements would undoubtedly show that when P. W. 8 was informed by his Manager (P. W.2)about the monthly payments to the appellant, P. W. 8 did not choose to bring the matter to the notice of the appropriate authorities against the appellant and for his self-interest and by throwing public interest to the air, instructed his Manager (P. W. 2) to somehow manage with the matter and not to pick up quarrels with the appellant which would clearly mean that the montly payments should be made to the appellant to manage their matters. He was even satisfied in March, 1979, that his Manager had paid Rs: 3,000/-to the appellant for which he (P. W. 8) showed the expenditure in the impressed accounts of the Manager. These payments evidently, could not have been shown in the regular accounts for which P.W. 8 had shown the payments of bribe money to the appellant in the impressed accounts, as stated by him (P. W. 8). P. W. 2 had shown, it as miscellaneous expenditure. In his corss-examination, P. W. 8 had stated thus :

'...So far as I remember in January or February, 1979' my Manager told me that the accused was demanding Rs. 1000/- per month. The monthly remuneration of my Manager was Rs.-700/- to 800/- Although I was very much annoyed with reluctance I had to pay Rs. 1000/- to the Manager. By repressed account I mean that the account, was lying with G.H. Mohanty Manager (Volunterred) I reflected the account in that manner although know that he bad spent amount in meeting the demand of the accused. I have shown this account for the month of March, 1979 ...'

P. W. 8 had admitted in his evidence that the appellant could only initiate a case, but he had power in connection with the operation of the mines or to cancel the licence or lease. He had admitted that, the appellant had never initiated a case against him. All this would show that voluntarily and willingly and without being harassed or coerced, P.W. 8 had paid bribe money to the appellant for three months through his Manager (P. W. 2) and these payments had been shown not in the regular accounts, but in the impressed accounts.

12. The statements made by Mr. Patnaik (P. W. 8) and his Manager (P. W. 2) with regard to willing participation in the matter of payments of bribe money to the appellant would bring about their own condemanation. These two persons, on their own showing, were bribe-givers. A bribe-giver must be condemned as much as a bribe-taker. , Givers of bribe-amounts to public servants are undoubtedly accomplices to the crime. In this connection, reference may be made to the observation of the Supreme Court in AIR 1954 S. C. 322 : Rao Shiv Bahadur Singh and another v. State of Vindh Pradesh and by this Court in 58 (1984) CLT 53: 1984(I) OLR 597: B.K. kutty v. State. Being accomplices to the commission of crime because of their statements of payments of bribe moneys to the appellant for three months, the evidence of these two self-condemned persons, who, on their own showing, had thrown moral scruples and sense of honesty, if they had any, to the winds for which instead of refusing to meet the demand of the appellant, they had willingly paid bribe amounts for three months, would be unworthy of credit without corroboration in material particulars and through reliable sources. As has been laid down by the Supreme Court in AIR 1980 S. C. 1382 : State (Delhi Administration) v. V. C Shukla, the evidence of an accomplice is to corroborated by independent and reliable sources.

13. In the first information report itself lodged by P. W. 2, he had stated that for three months, the appellant was being paid bribe money at the rate of Rs. 1000/- per month. P. Ws. 2 and 8 had also been examined in the course of investigation. Thus on the basis of the materials placed before the investigating agency, it could as well initiate a case against the appellant for habitual acceptance of bribe punishable under Section 5(2) read with Section 5(1) (a) of the Act ,in which case both P. Ws.2 and 8 would be liable for abetment of commission of the said offence by the appellant if as deposed to by them, they had paid bribe amounts for three months to the appellant. The acts of P. Ws. 2 and 8 would also be culpable under Section 165A of the Code.

If the appellant had received bribe money at the rate of Rs. 1000/- per month, he would be liable to be punished under Section 161 of the Code and both P. Ws. 2 and 8 were liable to be punished under Section 165A of the Code. The investigating agency did not choose to prosecute the appellant and P. Ws. 2 and 8 for commission of these offences. Not only public servants, but also public men abetting the commission of offences by public servants should be prosecuted for corruption. If there be no bribe-givers, there would be no bribe-takers. Bribe-givers make and encourage bribe-takers. In the words of V. R. Krishna Iyer. speaking for the Supreme Court in AIR 1974 S. C. 1516 : Raghubir Singh v. State of Haryana

'...A bribe deal is usually a benefit, both syndrome, and the payer's lips carry little conviction in the absence of reassuring support. We hope the authorities in charge of cleansingour public sector corruption will view each detected act as symbolic of chain scheme and symptomatic of a deeper systematic malody and not as an isolated aberration of a dalinquent official. A massive purge, not stray traps, can alone be the strategy.

Absence of crime are accomplices and must be looked upon as such, if they are produced as witnesses for the prosecution. An accomplice is one who has occured tried in the commission of an offence and is a guilty associate in the crime. Accomplices are usually interested and always infamous witnesses. One accomplice cannot corroborate another and the corroboration of the evidence of accamplices must come from independent sources. There are various kinds of bribe-givers. There is the unblushing giver who pays the bribe and gets the advantage and subsequently gives evidence for some ulterior purpose. Such a person is an accomplice of the darkest hue. There may be a person who, from the very beginning, had no intention of giving a bribe, but makes a show of doing it so as to bring the dishonest public servant to book. Such a person, fax from being an accomplice, is a worthy citizen who is to be respected and encouraged. Undoubtedly, P. Ws. 2 and 8 belong to the first category.

15. For the reasons aforesaid, it would not be legal and reasonable, safe and proper to accept the uncorroborated testimony of these two accomplices, namely, P. Ws. 2 and 8 and the Court would require corroboration from independent and reliable sources before acting upon the statements of these witnesses.

16. I must, however, keep on record that the above observations have been made by me, on the basis of the statements made by P. Ws. 2 and with regard to their conduct and the evidentiary value of such witnesses. The observations made would not, in any manner, affect the official conduct of the appellant because he had neither been charged under Section 5(2) read with Section 5(1) (a) of the Act nor under Section 151 of the Code for receiving illegal gratification during the month; of January to March, 1979 and he had not been asked to meet these allegations. No person can be condemned unheard and for that reason the appellant could not be condemned on the basis of the statements made by P. Ws. 2 and 8 that he had been paid bribe amounts for three. months at the rate of Rs. 1,000/- per month. Ha was required to meet the charge of acceptance of Rs. 2,000/- as bribe money on April 26, 1979.

17. While, as observed by me, P. Ws. 2 and 8 have condemned themselves as habitual bride-given by their own statements and for this they have to blame none but themselves, the case the defence was that no amount had been paid as bribe, as alleged by the prosecution, during the months of January to March, 1979, at the rate of Rs. 1,000/- per month and therefore, the question of any increased demand would not arise and there was no occassion for it. Even, as deposed to by P. W. 8, the appellant had virtually no power at his command to touch his business and he could only initiate a case and he had initiated none. No account maintained either by P. W. 2 or P. W. 8 with regard to the payment of Rs. 1,000/- per month had been produced in the Court, as urged on behalf of the appellant. The appellant had no power to close the mining operations of P. W. 8 and stop transport of iron ores and therefore, there was no occassion for any such threat being administered by him about which evidence had been led by the prosecution through P. W. 2 This witness had stated that prior to the laying of the trap, there had been no obstruction raised by the appellant and there had been no difficulty at any time in getting the transit passes from the office of be appellant, as deposed by the same witness. If this was the state of affairs, it was highly unlikely that the appellant would make an increased demand bribe money from the month of April, 1979. If, as submitted by the defence, the evidence of P. Ws. 2 and 8 with regard to the monthly payment of bribe money at the rate of Rs. 1,000/- per month and the increased demand of Rs. 2,000/- is not accepted for the aforesaid reasons, it would expose the utter falsity of the evidence of P. Ws. 2 and 8 If they had been paying bribe money for which an increased demand had been made, they were the bribe-givers and accomplices. If, on the other hand, they had introduced a story of payment of Rs, 1,000/- as bribe money to the appellant for three months to bolster up and probablise their case that the appellant had made an increased demand of Rs. 2,000/- per month from April, 1979, they must be taken as manipulators with scant regard for truth.

18. Regard being had to all these features in the prosecution evidence, the highly tainted, partisan and interested evidence on which the prosecution sought to establish its charge of acceptance of Rs. 2000/- by the appellant as bribe money on the day of trap must have to be examined with great care before its acceptance. As observed in the case of Jaswant Singh v. State of Punjab : AIR 1973- S. C. 707, in a bribery case, the complainant is an interested witness and his evidence must beconsidered with great caution and it can be accepted when it is corroborated in material particulars by other evidence produced by the prosecution. There should be independent and trustworthy corroboration of the evidence of witnesses laying the trap, as observed by the Supreme Court in the case of Darshan Lal v. Delhi Administration : AIR 1974 S. C 218, in the instant case, the evidence of P. W. 2, by itself, was unworthy of credence and had not been corroborated by any other independent and trustworthy evidence. It may be stated at the cost of repetition that instead of being fair in taking an independent and disinterested person as an over-hearing witness, the investigating, agency choose to select P. W. 3 who was picked up from the office of P. W. 2 and who had then been working in the mines of Bansidhar Patnaik and whose uncle Sridhar had bean serving as the Mines Manager of Bansidhar Patnaik for a long time. It would be seen from the evidence of P. W. 2 that Bansidhar Patnaik is the maternal uncle of Mr. Niranjan Patnaik (P. W. 8). While P. W. 2 claimed in his evidence that he came to know Uma Shankar (P. W. 3) for the first time on the date of occurrence, meaning the date of trap and this was also the evidence of P. W. 3 this could never be accepted in view of the relationship of Bansidhar Patnaik and P. W. 8 and keeping in mind the fact that both P. W. 8 and Bansidhar Patnaik had been working out mines and P. Ws. 2 and 3 had been serving under them. Thus not only P. W. 2 but also P. W. 3 was a highly interested witness who would look for a successful termination of the trial against the appellant.

19. In the instant case, while- according to the prosecution, bribe money of Rs. 2,000/- had been paid by P. W. 2 in the presence of P. W. 3 after laying a trap, the case of the defence was that this money had been paid by P. W. 2 by way of contribution for the Recreation Club as earlier promised by him and his master (P. W. 8). The trial Court has applied Section 4(1) of the Act which reads :

'...Presumption where public servant accepts gratification other than legal remuneration. (1) where in any trial of an offence punishable under Section 161 or Section 165 of the Indian Penal Code (45 of 1860) or of an offence referred to in clause (a) or clause (b) of Sub-Section (1) of Section 5 of this Act punishable under Sub-Section (2) thereof, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said Section 161 or as the case may be, without consideration or for a consideration which he knows to be inadequate:

The presumption does not apply when an accused person is prosecuted under Section 5(1) (d) of the Act as laid down in AIR 1971 S. C. 1420: 1971 Cri. L.J. 1119: R.C Mehta v. state of Punjab and AIR 1975 S.C: 899 : 1975 Cri. L. J. 776 : V. K. Sharma v. State {Delhi Administration). The appellant stood prosecuted not only under Section 5(2) read with Section 5(1) (d) of the Act, but also under Section 161 of the Code. Thus the presumption could be applied to the latter offence. As has been laid down in AIR 1980 S. C. 873 : 1980 Cri. L. J. 564 : Hazari Lai v. State {Delhi Administration), where the recovery of money coupled with other circumstances leads to the conclusion that the accused received the gratification from some person, the Court would certainly be entitled to draw the presumption under Section 4(1) of the Act and it is for the accused to prove the contrary in order to rebut the presumption to be drawn against him. It has been laid down in AIR 1968 S. C. 1292 : 1968 Cri. L. J. 1484. Sailendranath Bose v. State of Bihar, that the words 'unless the contrary is proved' occurring in Section 4(1) of the Act make It clear that the presumption has to be rebutted by proof and not by bare explanation which is merely plausible. The burden resting on the accused maybe satisfied if he establishes his case by a preponderance of probabilities and it is not necessary for him to establish his case by the test of proof beyond reasonable doubt. The nature of the burden placed on him is not the same as that placed on the prosecution which must not only prove its case, but prove it beyond reasonable doubt. In AIR 1976 S.C. 1497 : 1976 Cri. L. J. 1180 : Chaturdas Bhagwandas Patel v. State of Gujrat, their Lordships of the Supreme Court have observed:

'......It is true that the burden which rests on an accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which establishes with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred to in Section 161...'

In AIR 1977 S. C. 666 : Trilok Chand Jain a Stale of Delhi, it has been laid down :

'......Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under Section 4(1) is to relieve the presumption of the burden of proving a fact which is an essential ingredient of the offences under Section 5(1){2) of the Prevention of Corruption Act and Section 161, Penal Code. The presumption therefore can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still-born.

While dealing with the question of presumption under Section 4 of the Act, it has been laid down in AIR 1979 S. C. 1455: 1979 Cri. L, J. 1118 : Man Singh v. (Delhi Administration) that the accused is not required to prove his defence by the strict standard of proof beyond reasonable doubt, but it is sufficient if he offers an explanation or defence which is probable and once this is done, the presumption under Section 4 stands rebutted. Before the presumption can be raised, the burden is on the prosecution to prove that the accused has accepted or obtained or has agreed to accept or attempted to obtain for himself any gratification other than legal remuneration, If an accused states in his examination under Section 313 of the Code of Criminal Procedure that the currency notes had been thrust into his pocket, that statement, by itself, without anything more, is not sufficient to satisfy the necessary ingredients of Section 4(1) of the Act, as held in AIR 1981 S. C. 1235 : 1981 Cri. L. J. 741: Banshi Lai Yadar v. State of Bihar.

20. The aforesaid legal principles regarding the applicability of Section 4(1) of the Act may be kept in mind while judging the prosecution case and that of the defence.

21. While according to the case of the prosecution, a sum of Rs. 2,000/-was paid to the appellant after laying a trap as bribe money, the case of the defence was that this had been paid towards the contribution for the Recreation Club and for contribution in the Children's Year, being the balance out of Rs. 3,000/- promised to be paid by P. Ws. 2 and 8 out of which a sum of Rs. 1,000/- had been paid earlier. The case of the defence was that all was not well between the appellant on the one hand and P. W. 8 on the other as the counter affidavit had been filed by the State Government on the basis of an adverse report submitted by the appellant in the writ application filed by P. W. 8 with regard to his rights over a particular mining area and for this, to feed fat his grudge, P.W. 8 had been instrumental in having a trap laid against the appellants by falsely alleging that he had received Rs 2,000/- as bribe money. It admits of no doubt from the evidence that a writ application had been filed by P. W. 8 and this was also the evidence of P. W. 8 himself. Strangely, P. W. 8 had disowned his knowledge about the ' contents of the counter affidavit put in by the State Government on the basis of the report of the appellant. This statement of P. W. 8 would tell its own tale, as normally and naturally, he must have been aware of the contents of the counter affidavit and it could be, as sought to be shown by the defence, that the appellant, in his report, had not supported the case of P. W. 8.22. I have earlier indicated that there was no occasion for which the appellant would increase the monthly bribe money to Rs. 2,000/- from the month of April, 1979, as P. Ws. 2 and 8 wanted the Court to believe. Besides functioning as the Manager of P. W. 8, P.W. 2 was a man of the confidence of P. W. 8 as stated by the latter - in his cross-examination. The investigating agency had been unfair in picking up P. W. 3 for the reasons already recorded by me, as the sole over-hearing witness to be present at the time of receipt of Rs. 2, 000/- by the appellant in his office on April 25, 1979. It may not be out of place to mention here that although P.W. 3 had then been working with Bansidhar Patnaik who was no other person then the maternal uncle of P. W. 8, the Investigating agency had taken steps to have his statement recorded under Section 164 of the Code of Criminal Procedure to bind him down to his statements made on path. As has been laid down by the Supreme Court in AIR 1974 S. C. 2165: Balak Ram and another v. State of U. P., no fault can be found with the Investigating agency for having the statement of a prosecution witness recorded under Section 164, but the evidence of such a witness is to be examined with great cars before its acceptance as he feels tied down to him previous statement and a departure from it might land him in a prosecution for perjury Apart from other reasons, this ought to have put the trial Court on its guard to examine the evidence of this witness with extraordinary care, but the trial Court evidently had not kept this suspicious feature in mind while appreciating the evidence of P. W. 3.

23. While according to P. W. 2, after he entered the office of the appellant for payment of the bribe money, he wished the appellant who asked him to sit down and thereafter the appellant asked him as to whether he had brought the amount and he told him that be had and thereafter the money was paid, evidently in his exuberances to support the case of the prosecution, P. W. 3 had gone a step further and had stated that the appellant asked P W. 2 as to whether he had brought the money which he (appellant had previously demanded. The latter portion of this statement had not even been deposed to by P. W. 2. This statement had been introduced in the evidence of P. W. 3 to meet the case of the defence that the money had been paid by way of contribution for the Recreation Club and not because the appellant had previously demanded it. The trial Court ought to have, but had not. taken serious notice of this designed improvement in the evidence of P. W. .3. To make his presence at the entrance of the door of the office room of the appellant believable, P. W. 3 had gone to the length of stating that while P. W. 2 was sitting in the off ice room and was talking to the appellant, he (P. W. 2) had been looking back several times to see as to whether he (P. W. 3) was standing near the door. This was not in the evidence of P. W. 2.

24. It was both the case of the prosecution and the defence that P.W. 4. then a Senior Inspector of Mines, had entered the office room of the appellant while P. W. 2 was in that room. According to P. W. 4, when he entered the office room of the appellant, two peons, namely, Trilochan Bramha and Upendra Majhi (D. W. 2), were sitting near the office door of the appellant and he had not seen any other person on the entire verandah of the appellant's office room. Thus P.W. 3 was nowhere near the office room of the appellant and he could not have witnessed the payment and could not have heard the conversation between the appellant and P. W. 2 as he claimed to have. That apart, as the evidence of P. W. 4 would show, he opened the door of the office of the appellant and entered the room. This statement would show that the door bad been closed. This was also the evidence of D.W. 2. There was no reason to discard the evidence of P. W. 4 and D. W. 2 in this regard. All this would show that the evidence of P. W. 3 at trial about the conversation between the the appellant and P. W. 2 and about his seeing the payment of Rs. 2,000/- to the appellant on his asking P. W. 2 as to whether he had brought the money earlier demanded by him could not, but had unreasonably been accepted by the trial Court.

25. The evidence of the Investigating Officer (P. W. 10) was that when on going inside the office room with the other persons of the raiding party, he asked the appellant to hand over the twenty hundred rupee currency notes which he had taken from the complainant as bribe, the appellant refused to have taken the amount. The hands of the appellant were washed with the sodium carbonate solution and the colour of the hand-wash turned pink which was preserved in a bottle. P. W. 9 had deposed on similar lines. According to P. W. 10 after the hand-wash, the appellant became nervous and could not speak anything. The trial Court has taken serious note of this conduct on the part of the appellant. In the first place, there was nothing wrong about what the appellant had said. After all, the evidence of P. W. 10 was that he had demanded of the appellant to hand over the money he had taken as bribe and the appellant had refused to have taken the amount. This statement of the appellant would mean that he had not received any bribe money. According to P. W. 2, when the appellant was asked to produce Rs. 2,000/-, the appellant told P. W. 10 that he did not know anything about the payment of money. His evidence was that when the solution after the hand-wash of the appellant became pink in colour, the appellant became nervous and he could not speak anything. It had been suggested to P. W. 2 that the appellant went to the bath room while the amount of Rs. 2,000/- had been kept on the table and while he was temporarily absent having gone to the bath room, P. W. 2 had put the money in his brief case. These suggestions had been denied by P. W. 2. No advantage could be taken by the prosecution merely because of an alternative defence suggested to a prosecution witness. Even if a defence plea is false, it would not establish the case of the prosecution which must prove its case against an accused beyond reasonable doubt. According to P. W. 3, when asked by P. W. 10 about the money paid to him, the appellant replied that he had not accepted any bribe from P. W. 2 and he did not know anything about the money. It was also in his evidence that after the hand-wash, the appellant could not speak anything and he became nervous and his face turned pale. This witness had further stated that on being asked by P. W. 10 as to whether he had any explanation to give regarding the possession of Rs. 2,000/- with him, the appellant told him that he had nothing to say at that moment and that he would say what all he had to say in the Court. P. W. 4, who was admittedly present on the scene at that time, had spoken nothing about any such statement or suspicious conduct of the appallant.

26. Apart' from the aforesaid discrepancies in the evidence of the witnesses in this regard, it must be kept in mind that a criminal trial is not a roving enquiry into the conduct of an accused person. Conduct of an accused which destroys the presumption of his innocence can alone be consideted against him. (See AIR 1960 S. C. 500 Ananta Chintaman Lagu v. The State of Bombay). Notice was not taken by the trial Court of the fact that the statement, if any, made by the appellant to P. W. 10 in pursuance of any question put by him was a statement made in the course of investigation and could not be admitted in evidence. Whenever an accused is required under the law to give an account, he is not to offer it to the Investigating Officer, but at his trial. Different persons react differently in given situations. While one person may remain bold, another may break down when a false accusation is made against him. The conduct of a person in such situations would neither exhibit his guilty mind nor his guilty conscience and it cannot further the case of the prosecution in the absence of legal evidence pointing to his guilt.

27. As deposed to by P. W. 2, the idea of laying a trap against the appellant struck him on April 25; 1979, after the appellant insisted on payment of an increased bribe money of Rs, 2,000/- per month and thereafter, he went and reported to the Superintendent of Police, Vigilance, who was camping at Keonjhar. On his own showing, he had heard on April 24, 1979 that the Superintendent of Police, Vigilance, had been imping in the Inspection Bungalow at Keonjhar. It is not understood as to what was the occasion for him to know about this. This conduct of P. W. 2 assumes importance in the light of the evidence of P. W. 7, the Sub-Inspector of Vigilance. According to this witness, the Superintendent of Police, Vigilance, had asked him on April 24, 1979, to go to Keonjhar and assist the Inspector of Vigilance in Vigilance Police Station Case No. 15 of 1979. The case in question had been registered as Vigilance Police Station Case No. 15 of 1979 not on April 24, but on April 25,1479. According to P. W.7, on April 24, 1979, he boarded a bus from Sambalpur and went to Keonjhar having carried with him phenolphthalc in powder, sodium carbonate powder and three empty bottles. These articles had been issued to him by the Inspector of Vigilance, Intelligence Bureau, as stated by him. This would land same assurance to the case of the appellant that things were brewing against him and the final shape was taken on April 26,1979.The learned trial Judge had dismissed unjustifiably this important aspect in the evidence of P. W. 7 by making a casual observation that this statement as to the date had been made by mistake. A mistake with' regard to. this important aspect ought not to have been assumed by the trial Court. No step had been taken by the prosecution to obtain any clarification' from P. W. 7 in this regard by way of his re-examination.

28. Although according to P. W. 2, after the insistence of the appellant in the morning of April 25,1979 for payment of the increased bribe money, be went and made the report to the Superintendent of Police, Vigilance and therefore, earlier to it, there could have been no occasion for him either to arrange the money for payment to the appellant, at the increased rate. or, for the purpose of trap, strangely, P. W. 2 had stated in his cross-examination that he had brought twenty hundred rupee currency notes from the bank on April 24, 1979 from the Recount of P. W. 8. He had admitted that by that time, he could not have any idea to trap the appellant. The evidence of P.W. 8 was that P.W.2 had no authority to draw any money from his account. This money could not have been drawn from the bank, as alleged by P.W. 2, for the purpose of payment as the bribe money at the trap.

29. The following facts, evidence and circumstances would give a clear indication that the case of the defence that the amount of Rs. 2,000/- had been paid by way of contribution on April 26, 1979 by P. W. 2 as had earlier been promised by him and P. W. 8 would appear to be a reasonable and probable one and that even assuming that the presumption under Section 4(1) pf the Act could be raised to this case, it had been rebutted by the appellant, required under the law. by a preponderance of probabilities in his favour.

30. Being asked at the trial as to what he had to say with regard to the evidence of P. Ws. 2, 3, 9 and 10 that when he was asked to produce the amount, he denied to have accepted the amount (as per question No. 15), the appellant had answered :

'I told that I had not received any bribe amount. I told also that I received Rs. 2,000/- from P. W. 2 as donation for drama, publication of souvenir, child welfare fund on the occasion of the International Children Year, 1979.

In reply to question No. 7, the appellant had stated:

'The club got the promise through Gopinath Misia, Senior Inspector of Mines incharge of Murgabeda Mines that Niranjan Patnaik and Gopinath Mohanty had promised payment of Rs. 1000/- for construction of the boundary wall of the club and Rs. 2000/- towards drama, child welfare fund, advertisement charges in the souvenir.'

It admits of no-doubt from the evidence that Gopinath Misra (D. W. 1) was one of the Mining Inspectors in charge of collection of the donation amounts for the Mining Recreation Club. This was the evidence of D. W. 1 which found assurance from sufficient other evidence to be referred to herein alter. That the plan of the appellant was not an after thought at the trial would clearly appear from the fact that evidence had been led by the prosecution in its evidence to demolish such a plea. This would give an indication that the appellant had taken this defence from the state of investigation. P. W. 2 had stated that Mining Inspector Gopinath Misra (D.W.1) had collected a sum of Rs. 2, 000/- for the construction of the Mining Club House on April 29, 1979. He had, however, asserted that neither he nor P. W. 8 had promised to pay anything for the drama. In his cross-examination, however, he had stated that the Mining Officers had asked him and P. W. 8 for donations for the drama and they had individually agreed to give donations for it. It would also appear from his Evidence that the Mining Officer were asking the mine owners to donate liberally for construction of the compound wall separately and he had asked P. W. 8 for donations for construction of the compound wall. He had, however, denied the suggestion of the defence that he had paid Rs, 2,000/- to the appellant on thedate of trap as his contribution and that of P. W. 8 towards, the drama funds.

P. W. 8 had stated thus:

'There is a recreation club in the mining area at Joda,' which is organised by the mining office. So far I remember donated Rs. 500/- to the dramatic association of the club, in the year 1979 and this is the receipt granted by the Secretary of that club marked Ext. 9. (On consent of both the parties). In February 1979 when I had been to the Mining Office, Joda, the staff of that office requested me for donation. The accused was then the Senior Mining Officer. I volunteered to pay Rs. 500/-for the drama but on further request by the staff I agreed to pay Rs. 1000/- and I instructed my Manager (P.W.2) to pay the amount. I have never paid any amount for the construction of boundary wall of the said club nor there was any demand from me. My Manager told me subsequently that he had paid the amount of Rs. 1000/- but since he never produced the receipt in token of payment I have not shown that amount in my account. I never agreed to pay further sum of Rs. 2000,/- for the drama of that club nor there was any request....

There was, however, the evidence of D. W. 3. who admittedly was incharge of contributions in respect of Murgabeda Mines of which P. W. 8 was the lessee and P. W. 2 was the Manager, to the following effect :

'... I was in charge of Murgabeda Mines. I was entrusted with the collection of donation and this fact finds mention in the proceeding dated 4- 4. 1979. After 15. 3. 1979 and before 4. 4.1979, I had contacted P. W. 2 and he told me that Niranjan Patnaik will pay Rs. 1000/- towards the compound wall and another Rs. 1000/- towards the souvenir and drama etc., and he himself promised to pay Rs. 1000/- on his own behalf towards the drama: I disclosed the above promise in the meeting dated 4. 4. 1979 and accordingly it was mentioned in the proceeding of that date, that I would realise the said amounts. I was handling this receipt book Ext. 7. I have collected. , a sum of . Rs. 1000/- from P. W. 2 on behalf of Niranjan Patnaik vide Ex. B. which is in my handwriting. On 20. 4..1979 P. W. 2 paid the Rs. 1000/- against the promised amount of Rs. 3000/- and he promised me to pay the remaining Rs. 2000/- some time later and I made out these two receipts marked Ex. D and E, in my own handwriting on the same day, one for P. W. 2 himself and another for P.W.8each for a sum of Rs. 1000/-. I have not issued these receipts because I never received the money. I was present when the proceedings of the meeting dated 5. 6, 1979 were written by Srinibas Sethi.......'

He had also referred to other documents in support of his evidence. In the long drawn out cross-examination of this witness, nothing substantial had been brought out by the prosecution to discredit his testimony. The evidence of D. W. 1 had been supported by that of D. W. 3. The statements of the appellant would find assurance not only from the evidence of D. Ws. 1 and 3 but also from that of P. Ws. 4 and 5, both of whom had been functioning at the relavant time as the Senior Inspector of Mines at Joda. P. W. 4, had in his crose-examination stated thus :

'... On 4. 4.1979 a meeting was held by the members of the Mining Recreation Club and I as present in that meeting towards the last. On 5. 6.1979 : have signed confirming the proceedings of 4.4.1979. I read the proceeding dt, 5. 6. 1979 and gave my .signature in confirmation there of. Ext. A is the proceeding book of our Mining Recreation Club containing pages 1 to 187. The minutes of the meeting dt. 5. 6.1979 is written between pages 49 to 52. Ext. -A/1 is my signature.: Around the period 21st and 22nd April. 1979 the All Orissa Mining Officers- Conference was being held at Joda. The Joda Mining Officers were hosting the conference. During that period the Senior Mining Inspectors including me were entrusted to collect funds from the different mine owners, towards the staging of the Drama, towards the construction of the compound wall of the Mining Recreation Club and towards the raising funds of the International of Year of the Child. I have given the signature Ext. A/1 after going through Ext. A/2 .. i.e. proceeding dt. 5. 6. 1979. It was discussed in the meeting dt. 4. 4.1979 that Sri Niranjan Patnaik and Sri G. C. Mohahty (P.W. 2) will contribute money separately towards the Drama Fund of the Club. Ext. A/3 is the proceeding dt. 4.4.1979 where I have signed and my signature is marked as Ext. A/4. Ext. A/3 are contained within pages 39 to 48. On the Meeting of 4.4.1979 I along with others were entrusted to be in charges of the construction of the compound wall of the Auditorium. On 4.4.1979 Sri Niranjan Patnaik was pleased to promise to donate a sum of Rs. 1000/- for development and construction of the boundary wall of the Auditorium of the Mining Recreation Club. ...'

It is in the evidence of P. W. 5 that on April 4, 1979, there was a meeting of the members of the Recreation Club and it was decided on that day to stage a drama. It had further been decided that the Mining Inspector would collect funds from their mine owners and contributions would be taken without pressuring the mine owners. Ext. A is the Minute Book of the Recreation Club and the proceedings in respect of the meeting held on April 4, 1979 had been entered therein. He had stated in his examination-in-chief :

'... The portion maked in Ex. A at pages 42 and 43 is Ext. 6 which was written by me on the direction of the accused after the starting of the trap case. In Ext. 6 at the instance of the accused the words so in order to' were struck off and the words Sri Niranjan Patnaik etc., as in Ex. 6 was written by me at the instance of the accused. The amounts as noted in pages 46 to 48 against the mine owners were written by me at the instance of the accused. The pages from page 49 to page 52 were written on 5. 6.1979 by me, on the dictation of the accused.'

The prosecution had evidently led this evidence to show that all this had been done at the instance of the appellant to help him in his defence at the trial. This witness had admitted in his cross-examination that in the meeting held on April 4, 1979, the Mining Inspectors had been asked to collect donations from the mine owners looked after by them and Gopinath Misra (D. W. 1 ) was the Mining Inspector in charge of Murgabeda Mines. No decision had been taken, as stated by this witness, that P. W. 8 would donate a sum of Rs. 1,000/- towards the compound wall of the Recreation Club and he did not know till the time he had deposed in the Court if P. W. 8 subscribed Rs. 1,000/- for the construction of the compound wall of the Club. When confronted with some documents, this witness was constrained to admit that his earlier statement to the effect that he did not know as to whether P. W. 8 had donated Rs. 1,000/- was false. He had neither stated, in the course of investigation not his statement under Section 164 of the Code of Criminal Procedure that the words ''for the construction of boundary wall of the club had not been written in Ext. B when he counter signed it on April 27.1.979 about which he had given evidence in the Court. This related to the donation of Rs. 1,000/- by P. W. 8 for the construction of boundary wall of the Club. He had further admitted that he had neither stated to the Investigating Officer nor before the Magistrate under Section 164 that the entries from pages 49 to 52 in Ex. A had been written out by him on the dictation of the appellant. Unfortunate as it might seem, the learned trial Judge did not take due notice of these statements made by P. W. 5 which would give an indication that P. W. 5 had been made to say in his evidence to demolish the plea of the defence about some important aspect although no such statement had been made by him in the course of investigation or under Section 154 and in the context, these important commissions would certainly amount to contradictions seriously affecting his evidence at the trial. This witness had further stated in his cross-examination:

'...In the proceeding dt. 4.4.79 the words 'Sri Niranjan Patnaik, was also pleased to donate Rs. 1000/- for development and construction of boundary wall of the Auditorium of the Mining Recreation Club is false and the writing in the same proceeding from last paragraph of page 45 to 48 of Ext. A is also false. The last paragraph at page 50 of Ext. A is false. I did not protest when the accused asked me to write falsehood, even though 12 other members were present in that meeting. It is not a fact that I did not write any false thing at page 50 of Ext. A. I have not stated before the I. O. or in my 164 Cr. P. C. statement that I had written false statement in the last para of page 50 of Ext. A. I know Gopinath Mohanty P. W. 2. The above-noted false statement in Ext. A was written by me to the dictation of the accused. Till now I do not know if Niranjan Patnaik gave any money towards the construction of the compound wall of the club. I was in of a charge of the construction of the compound wall and I was maintaining the accounts thereof. Again says for the purpose of the compound wall no account is maintained...'

P.W. 5 had asserted that he had told some members of the Club that at the instance of the appellant, false entries had been made by him in Ext, A. None of them had been examined by the prosecution to support . version of P. W. 5. On his own showing, P. W. 5 had met P, Ws. 2 and 8 thereafter, but he did not tell them about the entries made, in their names in Ext. A nor did he want to assertain the truth or falsehood of such entries in Ext. A.

31. The aforesaid discussion of the evidence would undoubtedly show that the statements made by the appellant at be trial as to how he came to possess of Rs. 2,000/- had found sufficient assurance from the evidence of P. W. 4 and D. Ws. 1 and 3 coupled with the statements made by P. Ws 2, 5 and 8 to which reference has been made by me. In my view, the appellant had sufficiently and satisfactorily rebutted the presumption under Section 4(1) of the Act, assuming that such a presumption could be drawn against him under the law. The facts, evidence and circumstances narrated above and in particular, the suspicious features to which reference has been made by me, would not only probalise, but would establish the defence case and would clearly indicate that an untrue case had been presented against the appellant.

32. I would next come to the legal question raised by Mr. Palit with regard to the invalidity of the sanction order.

33. As has been submitted at the Bar, the State Government was the sanctioning authority of the appellant. The sanction order would' read that the order had been issued by the order of the Governor and signed by P. W. 11, then functioning as the Special Secretary in the Political and Services Department at Bhubaneswar. As his evidence would show, a consolidated report as par. Ex. 17 of the Investigating Officer had been enclosed to the letter requesting for sanction of prosecution of the appellant and after persuing this report, he (P. W.ll) issued the sanction order. He had stated in his evidence :

'...I was satisfied that the prosecution under Section 5(1) (a) of the P. C. Act read with Section 5(2) and under Section 161 L. P. C. should be launched against the accused...-'

He had stated in his cross-examination thus :

'...The consolidated report of the I. O. was received by me on 17.12. 79. perused the report on 23. 2. 30. I did not consider it necessary to make any further enquiry during the period from 23. 2. 80 to 6. 3. 80. The report of the I. O. gave me satisfaction that the prosecution in question should be launched...'

34. From these statements, it has been urged on behalf of the appellant that P. W. 11 could not be equated with the State Government and his satisfaction for sanctioning the prosecution could not be construed to be the satisfaction of the State Government. Mr. Palit has invited my attention to the observations made in the case of. Dr. Hemanta Knmar Nayak v. State, of Orissa I. L. R. 1977 Cutt. 545 and has submitted that as a mere consolidated report had been submitted by the Vigilance Department and the other documents including the first information report and the seizure, lists had not been forwarded,, it could not be said that there had been valid sanction after proper application of mind by the sanctioning authority. In that case, however, there had been material discrepancy in the enquiry, report as to what amount of money had actually been misappropriated and a draft sanction order was sent by the Poltical and services Department along with the resume of the case which was merely a verbatim copy of the said draft sent by the Vigilance Department.

35. The learned. Additional Standing Counsel has submitted before me that the order of the Governor sanctioning the prosecution had been taken whereafter sanction had been issued by the order of the Governor. The facts of the case have been set out in the sanction order (Ext. 16). As submitted by Mr. Rath, P. W. 11 had, no doubt, stated about his satisfaction, but he had not, in terms, stated that he had sanctioned the prosecution of the appellant. It-has been stated in Ex. 16 that sanction has been ordered by the State Government. Mr. Rath has invited my attention to the principles laid down in AIR 1961 S. C. 1762 Major E. G. Barsay v. State of Bombay and I.L.R.1973 A. P. 64 Turlapati . Ranga Rao In Re and has contended that once the sanction order is made in accordance with the provisions of Art 166 of the Constitution of India in the name of the .Governor, as in the instant case, there is an unrebuttable presumption in favour of the authenticity of the order. In view of this legal proposition, the sanction order (Ex. 16) may be said to be authentic and valid.

36. In the result, the appeal succeds and is allowed. The order of conviction passed against the appellant in respect of the two charges and the sentence passed against him under Section 5(2} read with Section 5(1) (d) of the prevention of Corruption Act are set aside.


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