- (1.) This appeal is directed against an order and judgement dated 27.3.1991 passed by the learned Judge, 4th Special Court, Calcutta convicting the appellant/accused in Special case no. 5 of 1985 under Section 161 of Indian Penal Code under Section 5 (1) (d) read with Section 5(2) of the Prevention of Corruption Act, 1947 and sentenced him to suffer rigorous imprisonment for two years and to pay a fine of Rs. 1000/- in default, to undergo rigorous imprisonment for 6 months.
(2.) The prosecution case, in short, is that one Gopal Krishan Sarkar lodged one written complaint dated 10.5.1985 with Central Bureau of Investigation, 13, Lindsay Street, Calcutta against the appellant Nirmalandu Goshami on the basis of which a case no. RC 8 of 1985 dated 10.5.1985 was registered under Section 161 of the IPC and under Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act, 1947 against the appellant. It was the case of Gopal Krishna Sarkar that his daughter Malati Saha had a card-board factory, under name and style M/S Calcutta Packaging Industries at 77/1 A & B, A.P.C. Roy Road, Calcutta. Sometimes in the month of March, 1985, some Inspectors of Central Bureau Department visited her factory and advised her to submit return showing annual turn over of sales. A few days thereafter, Malati Saha went to the office of Central Excise to submit return. The appellant being an Inspector of Central Excise Deparment, made few corrections in the return so submitted by Malati Saha and demanded Rs. 5000/- as bribe under the threat of putting her to harassment by making frequent raids. Malati Saha expressed her inability to pay of Rs. 5000/- to the accused at that time. The appellant told her that he would came on the 6th to collect money. On the 6th , at about 9 A.M., the appellant come to the factory again. Malati Saha talked to her father (Gopal Krishna Sarkar the de facto complainant) over phone asking him to come to the factory then and there. The de facto complainant rushed to the factory and met the appellant. They had spoken over the issue and a visiting card was offered by the de facto complainant to the appellant. On 8th May, 1985 the appellant telephoned the de facto complainant at about 3/3.30 P.M. and told him that he would be coming to his residence. At about 4.30 P.M. he came to the residence of the de facto appellant and demanded Rs. 5000/- from him. There was a bargaining over the amount and ultimately the appellant agreed to accept Rs. 3000/-. He told the de facto complainant to meet him at the gate no. 4 near the lift of the Podder Court building with the money at about 9.45 a.m. on 10.5.1985. On that date, the de facto complainant went there without any money. The appellant meet him at 9.45 a.m. and demanded Rs. 3000/-. The de facto complainant told him that he would have to withdraw the money from bank. Then the appellant told the de facto complainant to meet him at that place at about 12 hours. Thereafter, it was decided that the de facto complainant would meet him with money near a pan shop at about 4.30 p.m. on that date. At that juncture, the appellant demanded that at least Rs. 500/- had to be paid on that date as first installment. The de facto complainant thereafter, in consultation with Malati Saha, decided to report the matter to the CBI. They together went straight to the CBI office and lodged the complaint stating the entire facts. On the basis of that complaint, the CBI officials arranged for a trap in presence of two (2) independent witnesses to the effect that on that date at fixed time and place, Rs. 500/- in five numbers of 100 Rupees currency notes would be given by the de facto complainant to the appellant in presence of two independent witnesses who participated in the trap so arranged by the CBI. Phenolphthalein powder with solution of soda and water were sprinkled on those five numbers of 100 Rupees currency notes and it was decided that at the time of payment of the money by the de facto complainant and acceptance by the appellant, the de facto complainant would wipe his face with one handkerchief and the CBI officials who would remain present near by, would apprehend him. According to the arrangement, the de facto complainant went to the pan soap at the South East corner of Podder Court. At 4.30 p.m. The appellant came there and the de facto complainant handed over him the said five numbers of 100 Rupees currency notes which he kept in his pocket. At that time the de facto complainant wiped his face with a handkerchief as arranged. The CBI officials who were standing near by, then and there apprehended the appellant and took him to a shop belonging to a Chinese. Therein, the said five numbers of 100 Rupees currency note were recovered from the inner pocket of his trouser. The visiting card of the de facto complainant was also seized from his possession. Everything was done in presence the two independent witnesses who took part in the trap. Thereafter the case was investigated into and ultimately ended in a charge-sheet against the appellant for committing the offence mentioned earlier. Before that, sanction for prosecution was obtained by the I.O. from the competent authority. The appellant was arrayed to face charge under Section 161 IPC and under Section 5(1) (d) read with Section 5(2) of the Prevention of Corruption Act. He pleaded innocence. As a result, the Trial commenced and the learned Special Judge, upon consideration of the evidence on record, oral and documentary, came to the findings which has been impugned in this appeal.
(3.) The point to be decided in this appeal is whether the order and judgement passed by the learned Special Court is sustainable in law.;