K.B.PANDA, J. - (1.)THE appellant stands convicted under Section 161, Indian Penal Code and sentenced to rigorous imprisonment for one year and to pay a fine of Rs. 500/ - in default to undergo rigorous imprisonment for a further period of one month by the Special Judge, Bhubaneswar on 16.9.1974.
(2.)THE admitted background of the case in brief is as follows: The appellant while working as the Bench clerk of the Judicial Magistrate, Khandapara on 26.11.1968 received as bribe of Rs. 120/ - from P. W. 5 as a motive or reward to show favour to the defence in G. R. Case No.58 of 1966 in which P. W. 5 of this case figured as an accused.
The appellant abjured the charge. His explanation was that as per Court's orders, the defence in that case (G. R. Case No. 58 of 1966) was to deposit a sum of Rs. 120/ - as witness batta for summoning the Medical Officer and the Investigating Officer who were scheduled to be examined on 6.12.1963. Be it stated here that by then the doctor and the I. O. had retired from service. The doctor had intimated the Court in the concerned G. R. case that his travelling allowance should be paid in advance -vide post card Ext. C/a. The Magistrate thereupon directed the office to verify the same. The appellant placed a note (Ex. 6/1). The Sheristadar (P. W. 3) gave his own note as per Ext. 6/2. Ext. 6/3 is the Calculation sheet. P. W. 5 in this case and his associates who were accused in the relevant G. R. Case No. 58 of 1966 contested the office note of depositing witness batta of Rs. 170/ - through Advocate Shri Satpathy of Nayagarh Bar. The Court heard the lawyer, considered the office note and finally passed the following orders:

"28. 16.10.1968: Accused (convict) Jogeswar Lenka is present. He reports that the accused person has not received notices and undertakes to produce all the accused persons on that date. No P. Ws. The report of the B. C. and the office note thereon dated 14 -10 - 1968 is put up. The witnesses (M. 0., Dr. B. M.Saha and I. O. G. S. Das) who have since been retired from service are to be examined on behalf of the defence in their private capacity. Sri K. C. Satpathy, Advocate files power on behalf of accused Jogeswar Lenka. He submits that the above witnesses be summoned at the cost of the prosecution. Heard. Seen the office note. I do not find any irregularity in the office note and it is accepted. The defence is directed to deposit Rupees 170/ - tentatively towards costs of the batta expenses of the M. O., and I. O. Keep extract of the post card D/ -23.9.1968 of M. O. Dr. B. M. Saha in connection with G. Rule 55/67 of this Court for reference. Summon to witnesses Dr. B. M. Saha and the I. O. G. S. Das to their present address fixing 11.11.1968 for evidence.
The accused present is directed to produce all the remaining accused persons on the date fixed. Sd/ - G. S. Rao 16.10.1968. 29. 19.10.1968: Advocate for accused files a petition praying to deposit Rs. 50/ - and undertakes to pay the balance of witness (batta) if necessary. Heard. Petition allowed. Nazir to receive and remit the amount to Sri B. M. Saha for his attendance on the date fixed. Call on the date fixed. Sd/ - G. S. RAO 19.10.1968. 30. 11.11.1968: All the accused persons present. I. W. present. M. O. is absent and intimates vide his letter received today that due to illness he cannot come to court and pray for an adjournment.
I am in indisposed condition and unable to take evidence of the I. O. today. Call on 12.11.1968 for the examination of I. O. He is directed to appear tomorrow. Accused persons as before. Sd/ - G. S. RAO 11.11.1968. 31. 12.11.1968: All the accused persons present. I. O. is present. Advocate for accused has filed a petition, praying to call for the case diary to F.I.R. and the charge -sheet of G. Rule 67/66. Heard. The F. I. R. and the charge -sheet are already available for reference today. But the C. D. is not readily available. Petition allowed. Call for the same fixing 6.12.1968 for evidence. The witness is directed to appear on the date fixed. The defence to pay the expenses of the witnesses in the meantime. Summon the M. O. Accused as before. Sd/ - G. S. RAO J. M. F. C. 12.11.1968." (The underlinings are mine).

(3.)THE scope of the appeal lies in a very narrow compass. The sole point for consideration is if the acceptance of Rs. 120/ - by the appellant from P. W. 5 on 26.11.1968 before the opening of the office as he was coming from his residence to attend the office was by way of receipt of an illegal gratification as alleged by the prosecution or acceptance thereof was as contended by the defence the witness batta for summoning the I.O. and the doctor which evidently the appellant had already done on 18.11.1968 as he proceeded on leave the next day on 19.11.1968.