K.B.PANDA, J. - (1.)APPELLANT has been convicted under S.5(1)(d) of the Prevention of Corruption Act read with S.5(2) thereof (hereinafter referred to as the ?Act?) and under S.161, I. P. C. Under the latter count he has been sentenced to undergo R.I. for one year and to pay a fine of Rupees 700/ - in default to undergo R.I. for a further period of three months. However, no separte sentence has been passed under the first count.
(2.)IT is alleged by the prosecution that the appellant received a bribe of Rs.200/ -(M. Os. 1 to XX in 10 rupee currency notes) on 18 -7 -1973 at about 3 P. M. in Kiran Restaurant in Berhampur town from P.W. 2. The background for offering the alleged bribe is that earlier on 3 -7 -1973 one Gandu Sahu had lodged an information against P.W. 1 and his brother alleging robbery against them. In consequence thereof it is alleged that they were taken to custody by the ap?pellant and kept in detention at the Berhampur Taluk P. S. where he was the officer -in -charge. As P. W. 2 went to the P.S. for the release of P.W. 1 and his brother, it is alleged, that the appellant had demanded Rs.500/ -. But P. W. 2 did not offer any money. However, these two persons obtain?ed their bail from court the next day on 4 -7 -1973. Further the prosecution case is that on 17 -7 -1973 the appellant accidentally met P.W. 2 at Aska Road. There he suggested to P.W. 2 that if he would give him Rupees 200/ - then the appellant would minimise the gravity of the offence against P.W. 1 and his brother. P.W. 2 agreed to this and it was settled between them that the money would be handed over to the appellant while he would be taking his lunch in the local Kiran Restaurant at 2 P. M. the next day. Accordingly P.W. 2 on 18 -7 -1973 approach?ed the vigilance D.S.P. (P.W. 7) with a written complaint as to how the appellant had demanded Rs. 200/ - from him to be given as bribe for minimising the gravity of the offence as against his nephews (P.W. 1 and his brother). He had also in that com?plaint i.e. Ext. 1 noted the number of the notes. This was treated as F.I.R. and the D.S.P. Vigilance (P.W. 7) directed the Investigating Officer (P.W. 8) to arrange a trap. The services of an assistant of the Commercial Tax Department (Vigilance) (P.W. 3) along with a Magistrate (P.W. 6) were requisitioned. The raiding party con?sisting of the D.S.P. (P.W. 7), I.O. (P.W. 8), P.W. 3 and two other officers of the vigilance department proceeded in a jeep towards the Kiran Restaurant. The decoy witness (P.W. 2) had told the D.S.P. and other officers of the Vigilance Depart?ment that he would go ahead and pick up a friend, namely, Rama Krushna Patnaik (P.W. 5) who would give them intimation after he had paid the bribe to the appellant. It was agreed and so P.W. 2 left ahead of the raiding party which, as previously arranged, was to wait near Hanuman Temple.
The appellant at about 2.30 P.M. was tak?ing his lunch in Kiran Restaurant. P.W. 2 went and sat on a chair across the table. P.W. 5, the over -hearing witness occupied his seat on a chair opposite to the counter. The situation of the Kiran Restaurant is in the shape of an ?L". According to the pro?secution P.W. 2 on a demand from the ap?pellant, gave the notes (M. Os. I to XX) which had already been signed by the Magis?trate (P.W. 6) to the appellant who kept the same in his left side pant pocket. Thereafter P.W. 5 went and informed the raiding party which came and demanded the bribe accept?ed from P.W. 2. However, it is alleged that on some pretext the appellant threw away the bunch of notes which were recovered lying under a table in the same room. Thereafter the case was investigated by P.W. 8 who submitted charge -sheet against the appellant ending in his conviction as aforesaid.

The defence is that he has not accepted any bribe from P.W. 2 and that the vigilance staff being hostile to him and P.W. 2 being aggrieved for not letting out his nephews on bail have combined and foisted this false case.

(3.)THERE are 8 witnesses for the prosecu?tion and one for the defence. Out of the P.Ws. the material witnesses are P.W. 2, the decoy witness, P.W. 3 and P.W. 6 the two independent witneseses taken along with the raiding party and P.W. 5 who had been chosen by the decoy witness to give signal to the raiding party after the appel?lant had received the bribe. P.W. 6 is the hotel keeper, P.Ws. 7 and 8 are respectively the D.S.P. Vigilance and the I.O. The defence witness is the junior S. I. attached to Berhampur Taluk P.S. He had worked for only 9 days under the appellant. Be it stated here that the appellant was also in charge of Berhampur Taluk P. S. for a fortnight having taken over charge on 3 -7 -1973. This defence witness proves some station diary entries indicating that one vigilance Sub -Inspector named Bhagaban Pati had previously attempted to start a case against the wife of the Bench Clerk of the A. D. M. (Judicial). Berhampur. The appellant did not oblige Bhagaban Pati and did not start a case as desired by him. It is further alleged by the defence that the vigilance Inspector Shri S. Adhikary (not exa?mined) has phoned up to the appellant say?ing how the vigilance D.S.P. desired that the case against the wife of the Bench Clerk of the A.D.M. (Judicial) be initiated. Be it stated here that Ext. F is the station diary entry dated 11 -7 -1973 to the effect that Bhagaban Pati Vigilance Sub -Inspector lodg?ed information against the wife of the Bench Clerk of the A. D. M. (Judicial) Berhampur. Ext. F/1 another station diary entry dated 14 -7 -1973 indicates how pressure was put on the appellant by the vigilance people in?cluding the D.S.P. that a case should be started against the wife of the B.C. of the A.D.M. (Judicial) Berhampur. Admittedly the appellant resisted the attempt of the vigilance to put a lady into trouble for which they left the P. S. ?with a revengeful attitude". Exts. F and F/1 clearly show how the appellant was not in the good books of the local vigilance people. The oral evidence of D.W. 1 further strengthens it.