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CASE NO.: Appeal (crl.) 643  of  1995

PETITIONER: BIRANCHI NARAYAN MOHANTY

       Vs.

RESPONDENT: STATE OF ORISSA

DATE OF JUDGMENT:       14/12/2000

BENCH: U.C.Banerjee, K.G.Balakrishna

JUDGMENT:

L.....I.........T.......T.......T.......T.......T.......T..J

     K.G.  BALAKRISHNAN

     This  appeal  is directed against the  conviction  and sentence  of  the  appellant under Section  5(2)  read  with Section  5(1)(d) of the Prevention of Corruption Act,  1947. During  the  relevant period, the appellant was  working  as Assistant  in  the office of the Teshsildar.  The  appellant was entrusted with the work relating to mutation of names in the  Revenue  record.  PW-11, Jogendranath Dhal,  approached the  appellant  on 24.2.82 with 11 mutation applications  in respect  of different persons.  The prosecution case is that the  appellant  demanded Rs.7/- per application  as  illegal gratification from PW-11.  PW-11, reluctantly, agreed to pay Rs.6/-  per application and as he had no enough money to pay for   all   the  applications  he   submitted   only   three applications  to the appellant and paid Rs.18/- and promised the  appellant  that he would come after two days to  submit the  remaining of the applications.  The appellant told  him that  he  would  not  be present in office  on  27.2.82  and directed PW-11 to come on 26.2.82.  PW-11 was annoyed by the demand  of  illegal  gratification  by  the  appellant   and straightaway  went  to  the  office   of  the  Inspector  of Vigilance and reported about the demand of bribe made by the appellant.   Based on the information given by PW-11, a case was  registered  and  a  trap was proposed  to  be  laid  on 26.2.82.   PW-11 gave Rs.48/- to the Inspector of  Vigilance along with eight mutation applications and a slip containing the  names of all the 8 applicants.  Usual preparations were made for the trap and PW-11, along with the other members of the  trap  party,  reached the office of  the  Tehsildar  on 26.2.82.   PW-11 handed over the said eight applications and the currency notes to the appellant.  Thereupon, the members of  the  trap  party  seized the  currency  notes  from  the appellant and on chemical examination using sodium carbonate solution  the  appellant’s  hands   were  found  to  contain Phenolphthalein  powder.  The detection report was  prepared

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and  on completion of the investigation, charges were framed against the appellant.

     The  appellant admitted before the trial court that he had  received  Rs.48/-  from  PW-11, but  he  denied  having received  any  illegal  gratification.  He alleged  that  on 21.2.82,  DW-1,  Rabinarayan  Naik, had entrusted a  sum  of Rs.48/-  to PW- 11 with instructions to hand it over to  the appellant  for  the purchase of four litres of  mustard  oil from  Betanati.   According  to  the  appellant,  PW-11  had withheld  the letter handed over to him by Rabinarayan Naik, DW-1,  and  simply handed over Rs.48/- to the  appellant  to cheat him.  The appellant had also alleged that PW-11 was in the  habit  of  cheating ’Adivasis’ of the locality  and  on their  behalf  he used to file false mutation  applications. The  appellant further stated that the appellant had filed a complaint  against PW-11 with the local MLA and there ensued an  inquiry  against  PW-11  at the instance  of  the  Addl. District  Magistrate  and that owing to the  said  incident, PW-11  was on inimical terms with the appellant.  The  trial court  as well as the High Court disbelieved the version  of the appellant and found the appellant guilty.

     Learned  senior  counsel, Mr.  S.B.  Sanyal  contended before  us  that  the  case against the  appellant  was  not satisfactorily   proved.   It  was   also  argued  that  the appellant  had  not  received any amount by way  of  illegal gratification  and  the amount recovered from the  appellant was  paid  by PW-11 for the purchase of mustard oil.  We  do not  find  much force in the contention advanced by  learned counsel  for  the  appellant  in   view  of  the  clear  and satisfactory  evidence adduced by the prosecution that PW-11 had  visited  the  appellant  on 24.2.82  and  that  he  had submitted  11 applications and the appellant demanded Rs.7/- per application and unless this amount was paid he would not issue  any  notice  on  those   applications.   It  is  also pertinent  to note that along with the money recovered  from the  appellant,  the eight mutation applications  were  also found  to  be  in possession of the  appellant.   The  three applications,  which were filed earlier, were also found  in the office of the appellant.  The defence plea set up by the appellant  is  highly  improbable.  Even  according  to  the appellant  himself, he was not having good relationship with PW-11.   Therefore,  it is not likely that DW-1  would  have requested  PW-11  to hand over Rs.48/- to the appellant  for the purchase of mustard oil.  Even if such a demand was made by  DW-1, PW-11 could have declined the same.  The appellant had also contended that DW-1, Rabinarayan Naik, had reminded the  appellant to purchase the mustard oil through a  letter which  was passed on to him through another friend,  namely, DW-2,  Trailokyanath  Mohapatra,  and this  letter  was  not produced  in  court.  All these facts would only prove  that the  defence  set up by the appellant is highly  improbable. The   appellant  could  not   give  any  other  satisfactory explanation  for  having received Rs.48/- from  PW-11.   The courts  below have rightly held that the appellant  accepted the tainted money as illegal gratification.

     The  learned  counsel for the appellant lastly  prayed that  the  sentence awarded may be reduced as the  appellant has suffered other consequential punishment of loss of Govt. job.   Having regard to this fact, we reduce the sentence of imprisonment  from one year to a period of six months.   The sentence  regarding  fine shall, however, remain  unaltered. This sentence shall also be treated for the conviction under

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Section 161 I.PC.

     The  appeal  is dismissed accordingly.  The  appellant shall  surrender  forthwith  to   undergo  the  sentence  of imprisonment.