D.M. Patnaik, J.
1. The appellant assails his conviction and sentence of rigorous imprisonment for one year and fine of Rs, 500/-on both counts under Sec.5 (2) read with Section 5(1)(d) of the Prevention of Corruption Act (for short, 'the Act') and Section 161 of the Indian Penal Code. Both the sentences to run concurrently.
2. Prosecution case is, at the relevant time the appellant was serving as Live-Stock Inspector in village Indipur in the district of Dhenkanal. On 29-3 1986 at '7.30 p.m. it was alleged that he demanded and accepted a sum of Rs. 200/- from PW 3 as bribe for payment to the Branch Manager of the Dhenkanal Gramya Bank, Indipur Branch, for early sanction of the loan of PW 3 Previous information to this having boen lodged with the vigilance, the raiding party at the above hour near the house of the appellant in the said village recovered marked currency notes from the possession of the appellant to which the appellant admitted to have received for payment to the Branch Manager with a view to help PW 3, but it was, according to him, against his will.
3. Mr. Deepak Mishra, learned counsel for the appellant, after having taken this Court to the evidence on record, submitted that because of the glaring infirmities in the evidence of the prosecution, the appellant should not have been convicted.
Mr. G. K. Mohanty, learned Additional standing Counsel, on the other hand, supoprted the judgment of conviction.
After going through the evidence of PW 1 the Magistrate, PW 4 the S. I. of Vigilance, Sambalpur and PW 8 the Vigilance Inspector, I am satisfied that the trap was led after observation of due formalities and an amount of Rs. 200/- (four 50 rupee notes) were recovered from the possession ot the appellant. The appellant also admitted the recovery. Therefore, the only question for decision is, whether the appellant committed any offence, his application being that PW 3 handed over the the money even if he protested.
4. At the outset I must observe that the learned Special Judge (Vigilance) committed an error in convicting the appellant Under Section 5(1) (d) of the Act. In the case reported in AIR 1959 SC 847, The State of Ajmer (now Rajasthan) v. Shivji Lal. after quoting the relevant section under the Act i. e. Section 5(2) road with Section 5(1)(d) the Court held as follows :
'......If a public servant takes money from a third person in order to corrupt some other public servant and there is no question of him miconducting himself in the discharge of his own duty, that action may be an offence Under Section 161 of the Indian Penal Code but would not be an offence under Sec. 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act.'
In the present case at hand, the prosecution admittedly came forward with a case that the appellant was going to pay bribe to the Branch Manager of the Gramya Bank on behalf of PW 3. Therefore, the convic- tion of the appellant Under Section 5(2) read with Section 5(1)(d) of the Act is bad and therefore set aside.
Next it is to be seen whether he committed an offence Under Section 161 of the Indian Penal Code by accepting Rs. 200/- from PW 3 as put forward in the prosecution case.
5. There is no dispute as to the fast of the appellant receiving Rs. 200/- from PW 3. But the short factual aspect for determination is whether the appellant at all demanded the money and accepted it against his willingness. This can be judged from the totality of the evidence of the prosecution case. The initital burden on the prosecu- tion being to prove the case beyond reasonable doubt, it has to be seen whether the prosecution has been able to discharge this initial burden. For that a close scrutiny of the evidence is necessary.
6. PW 3 alleged in the FIR that he applied for a loan of Rs. 5000/- to augment his cloth business but the Branch Manager refused to sanction the loan before March. When he knew from PW 2 that the Branch Manager was receiving bribe for sanctioning such loan through the appellant, he approached the appellant and asked him to get the loan sanctioned early. Thus PW 3-conducted himself as an acco- mplice. It has been held in the case of The King v. S. N. Singh Rai, reported in AIR (38) 1951 Orissa 297 that in case of a bribe giver, he is an accomplice when he gives it with the intention of gaining some un- due official favour. Corroborstion to the evidence of an accomplice is not necessary either as a principle of law or as a fundamental rule of practice. But it is always for the Court of the fact in each particular case to decide whether it is safe to rely and act upon a decoy witness. Each case would depend upon its own merit.
It would be further proper to state the law on this point as ruled by this Court. In AIR 1952 Orissa 289, Biswabhusan v. The State, it has been held that if, On being so satisfied, the Court considers that the sole testimony of the accomplice is safe to be acted upon, a conviction can be based thereon and in such a case, even if corroboration is con- sidered desirable, a less strict standard of corroboration-evidence may be accepted. It has also been held in the case of Ram Prakash Arora v. The State of Punjab, AIR 1973 SD 498, evidence of interested and partisan witnesses who are concerned in the success of the trap must be tested in the same way as that of any other interested witness. In a proper case the Court may look for independent corroboration before convicting the accused persons. In AIR 1980 SC 1558, Gulam Mahmood A. Malek v. The State of Gujarat. the Court held that where the complainant is in the nature of an accomplice, his story prirna facie is suspected and before any Court would act on his testimony, corroboration in material particulars is necessary.
Let us now see if there is any infirmity in the evidence of PW 3 so that corroboration to his evidence would be necessary and if so, to what extent,
7. PW 3 stated in his evidence that he applied for a loan of Rs. 500/- on 25-3-1986. On 26-3,1986 he met the Branch Manager and requested him for an early sanction of the loan, but he was told by the Branch Manager to come after the month of March. He gathered informa- tion from outside that the Branch Manager was sanctioning loan after receiving money through the appellant and this also he learnt from PW2. Then he met the accused on 28-3 1986-at 8 a.m. and the appellant told him to come with Rs. 200/- on the following day so that he would pay money to the Branch Manager and get the loan sanctioned.
It seems to be .strange enough that three days after the application for loan he decided to bribe the Branch Manager through the appellant. This sudden impulse on the part of PW 3 to bribe the Branch Manager is found somewhat of an unusual conduct on the part of the witness which makes the prosecution case doubtful, Further. his evidence that he applied for a loan is not supported by any documentary evidence so much so even though the Branch Manager was examined as DW 1. he was not put a single question about such application pending with him. Not a suggestion has also been given to this witness that PW/ 3 ever approached him for a loan and that too on 26-3-1986 and that he refused to sanction loan before 31st March. is somewhat peculiar to note that the Branch Manager, the sanctioning authority, was the root of alt controversy in the, present case, and though he was in the witness box, not any one of the allegations in the FIR was put to him at least with a view to suggest the prosecution case. This casts a doubt in the evidence of PW 3 and I am of the view that it would not be safe to act on his sole testimony without corroboration.
8. PW 3, according to his own evidence, got the information from PW 2 about the Branch Manager receiving bribe through the appell- ant. This is also so stated in the FIR. Peculiarly, PW 2 did not corroborate this fact and rather stated that neither he nor his father received any loan from the said Bank. None of the villagers has been examined to prove that the Branch Manager was in the habit of taking money in sanctioning the loan. A bald allegation in the evidence of PW 3 that there was a nexus between the payment of the bribe to the appellant and the sanction of the loan cannot be believed. In fact, such nexus has not been proved. To add to this PW 3's evidence is accepted. PW 2 is a highly interested witness firstly because, PW 2 admitted in the cross-examination that he himself and PW 3 were both members of 'Association 82' and secondly, according to PW 3, PW 2 got the loan sanctioned after bribing the Branch Manager through the appellant. Therefore, both of them were interested in laying the trap against the appellant, one having already paid the bribe and the other being encouraged by the former to pay the bribe. The evidence of PW 3 whom have already found to be in the position of an accomplice as well as an interested witness cannot be corroborated by another interested witness i.e. PW 2. The prosecution case is found to be extremely shaky in the absence of examination of any independent witness other than PW 2,
9. So far as demand of the money is concerned the evidence of PW 3 that on 29-3-1986 at about 7. 30 p. m. when he and PW 2 called the appellant from his house, the appellant demanded the 'amount is sought to be corroborated by the evidence of PW 2 who has already been considered as highly interested witness. In a similar trap case before the Supreme Court, the case of Santilal Rameshwar v. State of Rajasthan, AIR 1976 SC 739, the two witnesses to the fact of demand of bribe were considered as highly interested persons and the Court did not think it safe to act on the sole testimony of third witness. In the present case, we find PWs 2 and 3 the two highly interested witnesses to only speak about the demand of the amount by the appe- llant and because of this highly interestedness the prosecution case* cannot be accepted as true. It may be profitable to refer to the following observation of this Court in. the case of Biswabhusan Nath, (supra) where this Court held ;
'If the evidence of a person, who on his own showing may be taken to be an accomplice, cannot be relied upon for the purpose of payment of a bribe, it would be equally unsafe to rely on it even for the purpose of the demand of the bribe because, the two really go together so far as the evidence is concerned.'
Therefore, once prosecution has failed to prove the demand, question of receipt of bribe did not arise.
10. In para 11 PW 3 stated that, on 28-3-1986 when he went to village Indipur, he did not intend to bribe the Banch Manager but he wanted to 'test if the Branch Manager was taking bribe through the accused for sanction of the loan'. Again in para 12 he stated that he wanted to detect both the accused and the Branch Manager for taking bribe and further stated to have told the vigilance to catch the accused and the Branch Manager for taking bribe. This evidence of PW 3 makes the story of demand highly suspicious and doubtful.
This apart, because of the following two glaring infirmities, the case of the prosecution has to be discarded in toto.
It has been held in the foregoing paragraphs that no evidence has been led by tha prosecution to prove that the loan application of PW 3 was pending as on the date of detection of the offence. The concerned Branch Manager was not examined by the prosecution and no explanation has been offerred for non-examination. Although the investi- gating officer examined him, the than Field Supervisor Ramesh Chandra Mishra as well as one Bikash Chandra Mishra who took over charge from the Branch Manager Shri S. C. Nayak and recorded their statement Under Section 161, CrPC but none of them was examined by the prosecution. If not for anything else, any one of them at least would have been in a position to depose about the pendency of the loan application of PW 3, Result of withholding the evidence of such material witnesses is that, an adverse inference is drawn that had any of them been examined, his evidence would have gone against the prosecution. In other words, it is legitimate to hold that prosecution filed to prove that any loan applica- tionwas pending lor sanction, which rathar makes it highly improbable for the appellant to demand briba from PW 3.
11. Another glaring inconsistency is in the evidence of PW 3 and his report in the F.I.R.
While in the F.I.R. he stated that he approached the appellant to get his loan sanctioned, he stated that appellant demanded Rs. 200/- immediately, whereas, in the evidence he stated that the appellant asked him to get the money on the next day. In the case of Santilal (supra) dealing with this one day's difference in demanding the money as found in the evidence and the report before the police, the Supreme Court held as follows :
'......This cannot be regarded as a trivial or insignificant discrepancy having no relevance to the veracity of the prosecu- tion case. It is a significant departure made by Dharma Lal and Ram Nath in their evidence and we do not think that their evidence can be recorded as reliable or trustworthy. It leaves an indelible infirmity- on the evidence led on behalf of the prosecution so far as the demand for bribe made by Ram Narain is concerned.'
The prosecution has miserably failed to prove the case against the appellant. A question, however, remains for answer is, as has been held by the learned Special Judge (Vig.), whether the appellant can be said to have rebutted the presumption that he had accepted the bribe money. In the facts and circumstances of the case, as has already been mentioned above, once prosecution fails to prove the case beyond reasonable doubt, it must be held that the presumption stands rebutted and the appellant is not obliged to prove his innocence. In the case of Sita Ram v. State of Rajasthan, AIR 1975 SC 1432 the Court held if the fact that the accused being a public servant is not shown to have obtained from any person any gratification (as is shown in this case), mere recovery of certain money from the person of the accused without proof of Its payment by or on behalf of some person to whom official favour is shown, the presumption cannot arise. In the present case the prosecution having failed to prove the demand and acceptance of money for the reasons stated above, question of presumption did not arise.
12. In the result, the appeal is allowed. The appellant is acquitted of the charges. Bail bonds executed stand discharged.