P.C. Misra, J.
1. The appellant has been found guilty under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act (for short, 'the Act') and under Section 161 of the Penal Code for receiving Rs. 500/- as illegal gratification from one Gangadhar Mishra on 7.4.1976 and has been convicted thereunder and sentenced to undergo R.I. for a period of one year and to pay a fine of Rs. 500/-, in default, to undergo further R.I. for one month.
2. The charges framed against the appellant are as follows:
(i) Under Section 5(1)(d) read with Section 5(2) : For having accepted Rs. 500/-from one Gangadhar Misra (P.W. 1) on 7.4.1976 for showing favour in the matter of a litigation and enquiry between P.W. 1 and Gajanan Agarwalla.
(ii) Under Section 161 of the Indian Penal Code : For having accepted Rs. 500/- on 7.4.1976 from P.W. 1 for showing him favour in connection with the aforesaid litigation and enquiry.
(iii) Under Section 5(1)(a) read with Section 5(2) of the Act.
For having accepted illegal gratification of different amounts on different dates, last of which Rs. 500/- on 7.4.1976.
(iv) Under Section 420 of the Indian Penal Code : For having cheated P.W. 1 by inducing him to pay Rs. 500/- on 7.4.1976.
2A. The learned Special Judge did not believe the prosecution case with regard to the payments alleged to have been made to the appellant on different dates as mentioned in the charge except Rs. 500/-on 7.4.1976 and acquitted the appellant of the charges under Section 5(1)(a) of the Act. The appellant has also been acquitted by the learned Special Judge of the charge under Section 420, I.P.C. As already stated the appellant has been found guilty under Section 5(1)(d) read with Section 5(2) of the Act and under Section 161, I.P.C. on a finding that the appellant had received Rs. 500/- from P.W. 1 on 7.4.1976. This appeal is, therefore, confined to the question as to whether the conviction of the appellant under Section 5(1)(d) read with Section 5(2) of the Act and under Section 161, I.P.C. is in accordance with law.
3. The case of the prosecution, in short, is that : P.W. 1, Gangadhar Misra, has a grocery shop at Malgodown, Cuttack and also owns some cultivable lands in his village Srikoruan. P.W. 1 used to carry on cultivation operation through hired servants. One Joharimal Gajanan who is a resident of Cuttack was carrying on business at Malgodown, owns some lands in the same village as that of P.W. 1. P. Ws. 1, 9 and another Nrusingha Bhoi (not examined in this case) jointly entered into a contract with the said Joharimal Gajanan to purchase the lands of the latter. Some disputes arose between the aforesaid intending purchasers on one hand and the said Joharimal Gajanan on the other over the amount of consideration for the purchase. P.W. 1 lodged complaint on 26.1.1976 at the Sadar Police Station against the said Joharimal Gajanan on the basis of which station diary entry No. 778 dated 26.1.1976 was made by an Assistant Sub-Inspector of Police, Narayan Rout (not examined in this case). According to P.W. 1, he met the accused as directed by the Inspector of the said Police Station (P.W. 5). The accused thereupon asked P.W. 1 to meet him at Madhupatna outpost where he demanded a sum of Rs. 500/- as illegal gratification so that he would pursue investigation against Joharimal Gajanan in pursuance of the complaint made by P.W. 1. P.W. 1 paid a sum of Rs. 200/- to the accused after consulting the other intending purchasers and after receipt of the said amount, the accused advised P.W. 1 to inform him as and when the said Joharimal Gajanan creates any difficulty for him. Accordingly, P.W. 1 informed the accused on 30.1.1976 that the said Joharimal Gajanan and his men had gone to his village and it is anticipated that they would create disturbance there. The accused thereafter deputed a constable (P.W. 12) who asked P.W. 1 and the men of Joharimal Gajanan to meet the accused. According to P.W. 1 he met the accused who demanded the balance amount of Rs. 300/- out of which P.W. 1 is said to have paid Rs. 100/- to the accused. It has also been alleged that one Bata Krushna Das, the Gumasta of Joharimal Gajanan, filed two Criminal Cases against P.W. 1 in which reports from the Officer in charge of the Sadar Police Station were called for by the Court. The accused was, however, directed by the officer-in-charge of the Sadar Police Station to enquire into the matter. P.W. 1 met the accused for his assistance in the matter of enquiry when the accused informed him that Joharimal Gajanan has made arrangement to get P. W. 1 arrested under the provisions of the Maintenance of Internal Security Act (shortly stated 'MISA'). The accused asked P.W. 1 to get a book on the said Act from his lawyer and accordingly, P.W. 1 supplied the said book. The accused further demanded a sum of Rs. 100/- from P.W. 1, but P.W. 1 expressed his inability to meet the demand of the accused. On 4.3.1976, one Basanta Roul of Malgodown, Cuttack, was arrested under the provisions of the MISA whereafter P.W. 1 became panic and went to the accused to see that the accused submits a favourable report in the criminal cases started against him by Bata Krushna Das. The accused informed P.W. 1 that people were being arrested under MISA and in his interest he should see him on the following day P.W. 1 thereupon met the accused in the next day and the accused informed him that he has already received orders from the Central Government for his detention under MISA. It is also alleged that the accused also informed P.W. 1 that in order to escape from the arrest under the MISA he should pay a sum of Rs. 3,000/- to the accused. P.W. 1 who had already got panic about the state of affairs going on then borrowed a sum of Rs. 3,000/- from his partner (P.W. 4) and went to the residence of the accused and offered him the money. The accused, however, did not accept the money and directed P.W. 1 to be present in his (P.W. 1's) residence in the evening on that day. The accused went to the residence of P.W. 1 at about 7 P.M. where P.W. 1 paid the accused a sum of Rs. 2,500/- on his demand. The accused advised P.W. 1 to keep himself concealed for at least 5 to 6 days at an unknown place so that he can escape from being arrested under the MISA. According to P.W. 1, he followed the advice of the accused and hid himself in the house of one 'Debata' at Madhupatna. The accused is alleged to have met P.W. 1 in the house of the said Debata being accompanied by one Abhiram Misra, nephew of P.W. 1, who has been examined as P.W. 10 in this case. The accused demanded a further sum of Rs. 2,000/- from P.W. 1 and in pursuance of which P.W. 1 paid a sum of Rs. 100/-then and there and asked his nephew (P.W. 10) to pay a further sum of Rs. 1,000/- to the accused. It is said that P.W. 10 paid the same amount of Rs. 1,000/- to the accused and informed P.W. 1 accordingly. Two or three days thereafter, it is alleged that P.W. 1 went to the accused to ascertain as to whether a favourable report has been submitted by the accused in the criminal cases. The accused then demanded a sum of Rs. 1,000/- as consideration for a favourable report to be submitted by him and threatened P. W. 1 that in case the amount demanded is not paid to him, P.W. 1 would be arrested under MISA. P.W. 1 alleges that he paid a sum of Rs. 500/- in pursuance of the aforesaid demand to the accused. The further allegation is that some days thereafter P.W. 1 was called to the Police Station by the City D.S.P. whereupon P.W. 1 went and met the accused for his advice, as he was apprehensive that he might be arrested under MISA. The accused, however, assured P.W. 1 that he shall not be arrested and the City D.S.P. might seek some information about the offenders operating in the Malgodown area, On 2.4.1976. P.W. 1 went and met the City D.S.P. where the accused was also present. The accused spoke high of P.W. 1 to the City D.S.P. during the meeting. When P.W. 1 came out after meeting the City D.S.P., the accused came and joined him and demanded a sum of Rs. 300/- from P.W. 1 for haying highly recommended his case to the City D.S.P. P.W. 1 expressed his inability to pay and came away. The accused came to the Malgodown area in the evening and again demanded Rs. 300/- from P.W. 1. P.W. 1, however, arranged a sum of Rs. 260/- and went with that amount of money to the Sadar Police Station. He met the accused there and at first expressed his inability to pay. but being threatened by the accused of dire consequences for non-payment, P.W. 1 paid the aforesaid amount of Rs. 260/- to the accused. P.W. 1 was told by the accused there that whatever money was previously paid by him had been spent in payment to the higher officers and he had not appropriated any portion thereof. The accused further demanded a sum of Rs. 1200/- for himself and being in fear of arrest, P. W. 1 agreed to pay Rs. 1000/- to the accused P. W. 1 being thus made to pay different amounts to the accused on various occasions got disgusted and reported to the City D.S.P. P.W. 15 on 6.4.1976 about all that had happened by then and sought for his advice to put an end to the persisting illegal payments to the accused. Shri A.C. Saho, the then Additional Superintendent of Police, Cuttack, (P.W. 7) arrieved in the office of P.W. 15 at that time who was also apprised of the grievances of P.W. 1. P.W. 1 was advised to meet the accused and to fix up with him the date and time of payment. Accordingly, P.W. 1 met the accused who continued his demand for payment of Rs. 1000/- as agreed to be paid to him. P.W. 1 agreed to pay a sum of Rs. 500/- on the next day at his residence between 7 P.M. and S.P.M. The accused having agreed to the proposal the said arrangement was informed by P.W. 1 to P.W. 7 and P.W. 15 who asked him to report at the Collectorate with a sum of Rs. 500/- on the next day. On 7.4.1976, P.W. 1 went to the Collectroate and met P. Ws. 7 and 15 there. He then went to P.W. 4 Golakh Chandra Swain at Malgodown and borrowed Rs. 500/- from him for the purpose of being paid to the accused. He returned to the Collectorate with the money and thereafter he was taken to the office room of P.W. 6, Gobind Chandra Sahu, the then Nizarat Officer, Cuttack, Shri P.K. B. Patnaik, an Executive Magistrate of Cuttack, also arrived in the office room of P.W. 6 and enquired from P.W. 1 of his grievances. P.W. 1 narrated the entire story relating to the demand and payment of money to the accused on different occasions and also about the present demand. P.W. 6 recorded the statement of P.W. 1 which has been treated as FIR in this case P.W. 15, the City D.S.P. took up the investigation and asked P.W. 1 to produce the said amount of Rs. 500/- which he had brought to be paid to the accused. The numbers of the currency notes (which were in the shape of 5, 10, 20 and 100 rupee currency notes) were noted and given back to P.W. 1. P.W. 1 was instructed to make over the said currency notes, the numbers of which were noted, to the accused on demand and give signal thereof by spitting so that the City D.S.P. the Magistrate and others would go to the spot and arrest the accused while committing offence of taking illegal gratification, P.W. 15 prepared a memorandum which has been marked as Ext. 6 in this case. It was agreed that P.W. 1 would keep his room open and keep the first floor dark so that raiding party could hide there. At about 6.30 P.M. the raiding party consisting of P. Ws. 6, 7 and 15 reached the house of P.W. 1, waited in a room in the first floor which was kept dark according to the previous arrangement. P.W. 1 remained in a room in the ground floor and waited for the accused. At about 8.30 P.M. the accused reached there on his motor cycle and P.W. 1 met him on the road in front of his house. The accused demanded the settled amount from P.W. 1. At that juncture of time two businessmen came near them whereupon P.W. 1 suggested them to go inside the house. But the accused did not agree to the said suggestion. It is said that ultimately P.W. 1 succeeded in his persuasion to take the accused inside and the accused went to the first floor instead of sitting in the ground floor finding that the room in the first floor was dark. He asked P.W. 1 about it, but P.W. 1 explained him saying that the fuse had blown off for which the room is dark. The accused then demanded Rs. 1000/- from P.W. 1 who offered Rs. 500/-. The accused did not accept the said amount of Rs. 500/-and came to the ground floor and left the house of P.W. 1 on his motor cycle. He asked P.W. 1 to sit on the motor cycle and took him towards the Pilgrim Road. At the Pilgrim Road the accused again demanded money and accepted Rs. 500/- from P.W. 1 and enquired as to when the balance amount of Rs. 500/- would be paid to him. P.W. 1 took 2 to 3 days time and came away. The accused having kept the money in his right side pocket went towards Mangalabag. P.W. 1 came from there and informed P. Ws. 6, 7, 8 and 15 who were waiting at his residence about the incident. Thereafter P. Ws. 8 and 15 went to the Sadar Police Station whereas P. Ws. 6 and 7 went to the Manglabag Police Station. After reaching the Sadar Police Station P. Ws. 8 and 15 found the accused working in one of the office rooms of the said Police Station P.W. 15 then sent a H.V.F. message to R.W. 7. Thereafter P.W. 15 demanded personal search of the accused accusing him that he had received an illegal gratification of Rs. 500/- from P.W. 1. P.W. 15 directed P.W. 5 to search the person of the accused. But incidentally he himself searched the person of the accused and directed P. Ws. 2 and 5 to catch hold of the hands of the accused to facilitate the search. While P.W. 15 was about to search the right hand side pant pocket, the accused brought out the bundle of currency notes and some coins and threw them. The currency notes were then picked up and the numbers of the currency notes were tallied with the numbers of the notes in the memo (Ext. 6). The numbers having tallied, the accused was arrested and detained in the lock up. The currency notes were seized and made over to P.W. 5 to be kept in the Malkhana. P.W. 15 prepared a memorandum noting therein all the details of the detection. Shri Satyabadi Mohapatra, the then Additional Superintendent of Police, Cuttack, (P.W. 16) thereafter took up the investigation and submitted the charge sheet after completion of the investigation and obtaining the necessary sanction to proceed against the accused.
4. The defence case is that the accused was never directed by P.W. 5 to look into the complaint of P.W. 1 against Joharimal Gajanan and that the accused never demanded or accepted any money from P.W. 1 to help him in his dispute with Joharimal Gajanan. On 31.1.1976 he issued a command certificate (Ext. 4) to P.W. 12 as directed by P.W. 5 and the station diary entry dated 30.1.76 was written under the direction of P.W. 5. It is also stated that the cases instituted by Bata Krushna Das, the Gumasta of Joharimal Gajanan, in which reports had been called for from the Officer-in-charge of Sadar Police Station had never been entrusted to the accused for enquiry and as such, there was no occasion for the accused to demand or accept any bribe from P.W. 1. It is Narayan Rout, the Assistant Sub-Inspector of Police who had been entrusted with the said enquiry. The allegation that the accused threatened P.W. 1 to arrest him under the MISA is denied and on the other hand, it is stated that the accused had no authority to arrest anybody under MISA. The further allegation that the accused demanded and accepted bribe from P.W. 1 threatening him to get him arrested under MISA is also denied. The accused, however, admits that he knew P.W. 1 earlier to be a rich dealer of Malgodown on account of his frequent visits to the Police Station. The accused had purchased a motor cycle after incurring a loan from the Canara Bank P.W. 1, however, had requested the accused to help in the matter of arrest of Basanta Roul under MISA to which the accused had expressed his inability. Basanta Roul was arrested later on under the MISA as per the direction of the higher authority. The accused has alleged that he was in need of money to clear the Bank loan for which he had requested P.W. 1 to advance a loan of Rs. 1000/- to which P.W. 1 had agreed. On 7.4.1976 the accused went to the house of P.W. 1 in the evening to collect the loan as promised by P.W. 1. P.W. 1, however, offered only a sum of Rs. 500/- and not Rs. 1000/- as promised by him earlier. The accused did not accept the amount of Rs. 500/- as it would not serve his purpose and started to came (Sic) away. P.W. 1 thereupon came with the accused on his motor cycle to Chhatrabazar to arrange the balance money of Rs. 500/- from somewhere. At Chhatrabazar P.W. 1 went to the house of someone with the plea that he was going to arrange the balance Rs. 500/-. P.W. 1, however, came back empty handed saying that the man from whom he would have brought the money was not available. Thereafter the accused started for Sadar Police Station and P.W. 1 wanted to go towards Dolamundai in a rickshaw. As P.W. 1 has no change as reported by him to pay the rickshaw fare, he gave one 10 rupee G.O. note to the accused to change the same into notes of smaller denominations. The accused had then in his possession a bunch of currency notes from out of which he brought out and gave to P.W. 1 currency notes of smaller denominations amounting to Rs. 10/- and kept the ten rupee note received from P.W. 1 in exchange along with the same in his pocket. Thereafter P.W. 1 moved away. So also the accused came away to the police station. According to the accused, some time after his arrival at the police station, P.W. 15 came there and wanted to search the pocket of the accused all of a sudden P.W. 2 and P.W. 5 were directed by P.W. 15 to catch hold of the hands of the accused. The accused was surprised at the undignified behaviour of P.Ws. 2, 5 and 15 and wanted to know the reason for the search. During the resistance he offered, the money that was inside the pocket fell down on the floor whereafter P.W. 15 and others seized the money and proceeded as if the said money was received by the accused from P.W. 1. According to the accused the money that was in his pocket at that time which fell down during the tussule was received by him 2 to 3 days before the occurrence towards his pay. The accused being a bachelor he is used to carry all the cash he had with him in his pocket. It is, therefore, contended that the accused is not guilty of any of the offences alleged to have been committed by him alleged to have been committed by him.
5. The prosecution examined 16 witnesses and several documents have been proved in support of the prosecution case. The accused has not examined any defence witness and has relied upon one document which is a copy of the seizure list.
6. As already stated earlier, the prosecution case so far as it relates to the payment of illegal gratification on various dates except Rs. 500/- said to have been paid on 7.4.1976 has not been accepted by the learned Special Judge for want of independent corroboration and thus the charge under Section 5(1)(a) of the Act has not been substantiated. Similarly, the learned Special Judge has held that the charge under Section 420, I.P.C. levelled against the accused has not been substantiated. The accused has, therefore, been acquitted of the aforesaid charges.
Therefore, the only charges that require to be investigated are the charges under Section 5(1)(d) of the Act and Section 161 I.P.C. I propose to discuss the said two charges separately one by one.
7. Charge under Section 161, I.P.C.
The charge framed under Section 161, I.P.C. against the accused reads as follows:
That you being a public servant employed as Sub-Inspector of Police attached to Sadar Police Station, Cuttack, on 7.4.1976 accepted or obtained tin amount of Rs. 500/- from Gangadhar Mishra for yourself as gratification other than legal remuneration as motive to do an official act or showing favour to the said Gangadhar Misra or for rendering any service to him in the matter of litigation and enquiry between him and Gajanan Agarwalla and thereby committed an offence under Section 161 of the Indian Penal Code and within my cognizance
In his evidence P.W. 1 has categorically stated (Vide Para 13 of his deposition) that the accused told that whatever money his had received from him had been paid to the higher officer for saving him from MISA arrest and he got nothing. Since he made arrangements to save him from the danger he must be paid Rs. 1200/-. As he threatened him (P.W. 1), the latter agreed to pay Rs. 1000/-. The further story narrated by P.W. 1 was that he took 10 days' time to arrange the money for the accused and during the interval he changed his mind and approached the city D.S.P. whereafter a trap was arranged. His specific case is that out of Rs. 1000/-demanded by the accused, Rs. 500/- was received by the accused on 7.4.1976 in the manner as stated above. It is thus clear that the prosecution made out completely a different case at the stage of trial from what was stated in the charge. It is urged on behalf of the appellant that the accused has been prejudiced inasmuch as he had no opportunity of meeting the prosecution case as the case that was put forward against him at the trial was entirely different from what was stated in the charge. Mr. Bohidar, the learned Counsel appearing for the appellant, relied upon a decision of the Supreme Court in the case of Bhupesh Deb Gupta v. State of Tripura : 1SCR906 , for his contention that the conviction of the accused under Section 161, I.P.C. in the above premises is not maintainable. In the said case it was proved that the accused who was a public servant and charged under Section 161, I.P.C. demanded a certain amount of money for securing a job for another. The accused was found to have no authority to secure the job promised by him. While the charge mentioned that the gratification was paid for showing favour in exercise of his official function, the prosecution case as proved was that the gratification was for inducing a public servant to show favour in this respect. Their Lordships were of the opinion that the accused was prejudiced and that he had no opportunity to meet the case that was put forward against him at the trial. The appeal was, therefore, allowed and the conviction and sentence imposed against the accused were set aside. The principle decided in the said case squarely applies to the facts of this case. The basis of the charge is entirely different from what was sought to be made out by the prosecution at the trial. According to the evidence of P.W. 1, the gratification of Rs. 500/- which is alleged to have been paid on 7.4.1976 was not for the purpose of rendering some service to P.W. 1 in the matter of litigation and enquiry between him and Gajanan Agarwalla as alleged in the charge, but was for showing P.W. 1 the favour of protecting him from being arrested under MISA. It has, however, been submitted on behalf of the appellant that the accused was not in a position to show any favour or render any service in connection with the enquiry and litigation between P.W. 1 and Gajanan Agarwalla. The incapacity of Government servant to show any favour or render any service in connection with his official duties does not necessarily take the accused out of the purview of this section. In order to establish an offence under this section the prosecution has to prove that the public servant accepts or obtains, or agrees to accept, or attempts to obtain illegal gratification as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour Or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with any public servant as such. Thus, the motive of a particular kind referred to under Section 161, I.P.C. is necessary to be proved. The primary question, therefore, (which) requires consideration is with what motive or as a reward for which act illegal gratification was paid to the accused or accepted by the accused. Section 4(1) of the Act provides that where in any trial of an offence punishable under Section 161 I.P.C. (or Section 165 I.P.C. or of an offence referred to in Section 5(1)(a) or (b) of the Act punishable under Sub-section (2) thereof, it is proved that an accused has accepted or obtained or has agreed to accept or attempt to obtain for him or for any other person any gratification other than the legal remuneration it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain that gratification as a motive or reward such as is mentioned in Section 161 I.P.C. Therefore, Section 4(1) of the Act introduced an exception to the general rule as to the burden of proof in criminal cases and shifts the onus on to the accused who has to prove that what he received was not for a motive or reward. The presumption under Section 4(1) of the Act is not available to be applied in this case inasmuch as the very basis of the charge is different from what has been proved at the trial and the accused can be said to have been prejudiced thereby. The initial burden of proof on the prosecution having not been discharged, the question of presumption under Section 4(1) of the Act does not arise in this case. I, therefore, hold that the charge under Section 161, I.P.C. fails.
8. Charge under Section 5(1)(d) read with Section 5(2) of the Act.
As distinguished from Section 161, I.P.C. a public servant charged under this section need not necessarily be connected with the performance of his official duties if he is proved to have obtained some pecuniary advantage for himself by abusing his position as a public servant. This is a case where a trap was arranged for detection of the offence. Since the bribe giving amounts to abetment of the crime envisaged under Section 161 or 165 I.P.C. and is punishable as such under Section 165A, I.P.C. the bribe giver who might be compelled under the circumstances to offer bribe, may not come forward to depose against the corrupt public servant, because of the fear of being prosecuted himself under Section 165A, I.P.C. an immunity has been given to such a bribe giver under Section 8 of the Act. The court while examining the evidence of such person enjoying the immunity under Section 8 has a duty to see whether the statement of such a person is with a sense of responsibility and that he has not misused the immunity given to him.
Demand by the accused for the bribe is an essential ingredient of the offence under this section and the same & necessary to be proved in ascertaining whether the trap laid is legitimate or illegitimate. As far as the case of the prosecution goes, the trap in this case can be termed as a legitimate trap, inasmuch as the bribe had already been demanded by the accused whereafter P.W. 1 went to the police to bring them to witness the payment.
In order to prove the alleged demand by the accused P.W. 1 is the only witness whose evidence has to be scrutinised in detail. According to P.W. 1, after he had paid Rs. 260/- to the accused on 2.4.1976, the accused told that whatever money he had got from P.W. 1 had been paid to the higher authorities in order to get the work of P.W. 1 done and the accused had got nothing out of the same. It is alleged that the accused demanded a sum of Rs. 1200/-to be paid to him as he had made all arrangements for saving P.W. 1 from arrest under the MISA. It is also stated by P.W. 1 that he agreed to pay Rs. 1000/-pursuant to the aforesaid demand. This part of the story of P.W. 1 has not been corroborated by any other witness. The further story as stated by P.W. 1 was that he contacted the accused on 6.4.1976 after he had met P.W. 7 and P.W. 15. At such meeting the accused again continued his demand for Rs. 1000/- but ultimately agreed to accept Rs. 500/- on 7.4.1976 at the residence of P.W. 1. This part of the evidence of P.W. 1 is also not corroborated. No doubt, P.W. 1 is a competent witness to speak of the facts which are alleged to be constituting the offence. But as a rule of caution, it would be unsafe to convict the accused relying on his testimony alone. P.W. 1, according to his evidence, had been paying bribe to the, accused voluntarily on several occasions. The nature of his evidence is that of an accomplice and without corroboration thereof by material particulars, the same cannot form the basis of a finding that the accused had demanded the money. This being a crucial aspect to constitute the offence under Section 5(1)(d) of the Act, the evidence of P.W. 1 cannot be relied upon without corroboration. See : 1979CriLJ936 , Pannalal Damodar v. State of Maharashtra and : 1980CriLJ1096 , Gulam Mahmood A. Malek v. State of Gujarat.
According to the evidence of P. Ws. 1, 6, 7, 8 and 15, all of whom were present at the residence of P.W. 1 on 7.4.76 at the appointed time, P.W. 1 offered a sum of Rs. 500/- to the accused and the latter did not accept the same. It is significant that P.W. 1 had met the accused on 6.4.1976 and had expressed before him that he is unable to pay Rs. 1000/- and would pay Rs. 500/- only on the next day, i.e. on 7.4.1976 at the appointed time. Thus, the time, place and the amount to be paid had already been fixed with the accused and the accused had agreed to accept Rs. 500/-from P.W. 1. In this background, there was no occasion for the accused to demand Rs. 1000/- from P.W. 1 at the appointed time and place or to refuse to accept Rs. 500/-, Even assuming that the demand of Rs. 1000/- had not been abandoned by the accused, it would have been natural for the accused to accept Rs. 500/- as previously fixed and keep on his demand for the balance Rs. 500/-. The story, therefore, does not appear to me to be probable and fitting in with the normal human conduct. The evidence of P.W. 1 goes to show that on earlier occasions the accused had accepted small amounts in comparison to his demand and thereafter insisted for the balance amount as per his demand to be paid. It does not, therefore, stand to any reason as to why and under what circumstances the accused would be refusing to accept Rs. 500/- though this amount was fixed from the previous day to be paid to him. The learned Additional Standing Counsel explained the situation by arguing that by the time the accused reached the house of P.W. 1 on 7.4.1976 in the evening, he found the up stair room to be dark and in the circumstances, he must have entertained suspicion for which he refused to accept the money there. But the subsequent conduct of the accused vis-a-vis P.W. 1 is inconsistent with the aforesaid explanation. If the accused did not receive the amount of Rs. 500/- on account of his suspicion, he would not have taken P.W. 1 on the pillion seat of his motor cycle immediately thereafter and would not have persuaded the matter any further that evening. The mere fact that the accused had come to the residence of P.W. 1 in the evening of 7.4.1976 would not Constitute any offence under Section 5(1)(d) of the Act.
The prosecution case, as stated by P.W. 1, is that P.W. 1 was carried on the pillion seat of a motor cycle of the accused and the accused demanded the very amount of Rs. 500/- from him at Pilgrim Road. There is absolutely no reason why the accused would ask for Rs. 1000/- at the residence of P.W. 1 and would not accept Rs. 500/- when offered to him at his residence but at the same time would demand Rs. 500/- at the Pilgrim Road after a few minutes. This evidence of P.W. 1 is equally uncorroborated and cannot be relied upon. The argument that the accused did not accept the sum of Rs. 500/- at the residence of P.W. 1 being apprehensive on account of the darkness of the room is not consistent with the subsequent conduct of P.W. 1 or that of the accused.
The payment of Rs. 500/- to the accused on 7.4.1976 by P.W. 1 was not for any advantage to be obtained by P.W. 1 except that the trap which was arranged at his residence would have been successful, when the accused refused to accept the amount of Rs. 500/- at the appointed place and time, it was apparent that the trap which was arranged had failed. The payment to the accused at any other place could not be in pursuance of the programme fixed by the raiding party. There was no reason for P.W. 1 to accompany the accused on his motor cycle and far less any justification for him to pay the amount at the Pilgrim Road which the raiding party could not witness the payment. It would have been natural for P.W. 1 to avoid going with the accused on some plea or the other and seek further advice of the raiding party who had been waiting at his residence for the trap. After all, P.W. 1 was going to pay illegal gratification to an officer of the Govt. holding a responsible post. In case it is not proved that the story narrated by P.W. 1 before P. Ws. 7 and 15 was true, P.W. 1 would naturally be apprehensive of the consequences. It is not natural for P.W. 1 to pay Rs. 500/- to the accused at some other place and report the fact of payment to the raiding party. According to P.W. 1, he had paid money to the accused on different occasions previously. This payment on 7.4.1976, if not made in presence of the raiding party, would not stand on a better footing than the payments he made previously which he had already narrated before P. Ws. 7 and 15. Thus, the demand by the accused and the payment of Rs. 500/- by P.W. 1 to the accused and the Pilgrim Road does not appear to be credible.
9. The presumption under Section 4(1) of the Act cannot arise in the facts of this case. It may, however, be mentioned that the presumption under Section 4(1) of the Act is not available for an offence referred to in Clause (d) of Sub-section (1) of Section 5 of the Act inasmuch as the only clauses referred to are Clauses (a) and (b) of Sub-section (1) of Section 5 of the Act. I am, therefore, of the view that the prosecution has failed to establish beyond reasonable doubt that the accused had demanded Rs. 500/- either on 7.4.1976 or prior to that and that P.W. 1 had paid the said amount to the accused as alleged.
10. The next part of the prosecution case is relating to the search and recovery of Rs. 500/- from the accused. One of the formalities that has to be observed in searching a person in that the searching Officer and others assisting him should give their personal search to the accused before searching the person of the accused. See : 1969CriLJ279 , State of Bihar v. Kapil Singh. This rule is meant to avoid the possibility of implanting the object which was brought out by the search. There is no evidence on record whatsoever that the raiding party gave their personal search to the accused before the latter's person was searched. Besides the above, it is in the evidence of P. Ws. 2 and 5 that the accused wanted to know the reason for which his person was to be searched and the reason for such search was not intimated to the accused. No independent witness had witnessed the search. In the above premises, my conclusion is that the search was illegal and consequently the conviction based thereon is also vitiated.
11. There is another interesting aspect of the case of the prosecution. In the course of investigation, the Investigating Officer seized three 100 rupee notes, two 20 rupee notes, twelve 10 rupee note, twelve 5 rupee notes, seven 1 rupee notes and changes worth Rs. 1.15 under Ext. 2. The articles seized under Ext. 2 were handed over to P.W. 5, the then Officer in Charge of the Sadar P.S. and he has granted the receipt (Ext 10). At the trial, the Sadar Police Station instead of sending all the articles seized under Ext. 2, sent three 100 rupee notes, two 20 rupee notes, ten 10 rupee notes and twelve 5 rupee notes which were received at the Court Malkhana. The currency notes which were received in the Court Malkhana did not bear the same number except only one ten rupee note bearing No.-026488 which is item No. 8 of the seizure List (Ext. 2). P.W. 7, the Additional Superintendent of Police, was present throughout when the detection and seizure were made and on receipt of the intimation from the court, he made enquiry about the seized notes which were kept in the Sadar Police Malkhana. His enquiry revealed that out of the currency notes seized under Ext. 2 and kept in the Sadar P.S. Malkhana except one 10 rupee note, other currency notes-have been substituted. If the seized articles had been substituted and were not available, it was not appropriate for the Police authorities to send some other currency notes which admittedly were not seized as per Ext. 2. In such circumstances, when the seized article was not found, it would have been proper to intimate the court about its loss and no attempt should have been made to deceive the court by sending some other similar article in substitution thereof. There are no materials on record for a conclusion that the currency notes which were seized had been substituted at the instance of the accused. Rule 119 of the Orissa Police Manual, Volume-1, requires that the property of which the police has taken charge shall be entered in detail with a description of the identifying marks on each article in a register to be kept in P.M. Form No. 18 in duplicate. The identifying mark of a G.C. note is its number. Therefore, it is quite natural to presume that the numbers of the G.C. notes which were seized under Ext. 2 must have been entered in the Malkhana Register. P.W. 5 in his evidence has stated that the seized articles which he kept in the Malkhunu were entered in the Malkhana Register maintained at the Police Station. The prosecution did not produce the Malkhana Register which would have shown that the identifying numbers of the G.C. notes seized under Ext. 2 were entered in the Malkhana Register and were kept in the Malkhana. In such event, there would have been a scope for an inference that the said G.C. notes were replaced while kept in the Malkhana. In the circumstances, adverse inference is possible to be drawn against the prosecution for its failure to produce the Malkhana Register in Court. An enquiry is said to have been set up as to who and at what time the alleged replacement of the G. C. notes was made. But P.W. 7 admits in his cross-examination that he does not know as to at what stage the enquiry is at present. It would, therefore, be unfair to accept the argument of the learned Additional Standing Counsel for the State that the missing G.C. notes were taken away and replaced by or at the instance of the accused.
12. The desirability of using chemical power for detection of such offences has been insisted upon by various decisions including those reported in : 1976CriLJ172 , Raghubir Singh v. State of Punjab and (1977) 44 Cut LT 538 : 1978 Cri LJ 1396 P. Vasudeva Rao v. State of Orissa. But no such science oriented detection was conducted in this case.
13. The defence set up by the accused gives a probable explanation as to how one 10 rupee note bearing the number as noted in Ext. 6 was found from his person. The very fact that on 7.4.1976 the accused had asked for Rs. 1000/- instead of Rs. 500A and refused to accept Rs. 500/- when offered by P.W. 1 lends support to the defence story that the accused had requested P.W. 1 for a loan. P.W. 6 and P.W. 8 are Executive Magistrates but they were members of the trap party and, therefore, their evidence stand on no better footing than any other trap witness.
14. After giving my anxious thought to each of the aspects which are necessary to prove the ingredients of an offence under Section 5(1)(d) read with Section 5(2) of the Act, I am of the view that the prosecution has miserably failed to bring home the charge beyond all reasonable doubts. I would, therefore, allow this appeal and set aside the conviction and sentences passed by the learned Special Judge. The bail bond furnished by the appellant be discharged.