JUDGMENT :

S. K. SAHOO, J.

1. The appellant/petitioner Sudarsan Sahani who is the Deputy Executive Engineer, Office of EIC, Rural Works, Bhubaneswar has filed this misc. case under section 389 of Cr.P.C. for suspension of his conviction passed by the learned Special Judge (Vigilance), Phulbani in G.R. Case No. 08 of 2013 (v) (T.R. No.08 of 2013) vide impugned judgment and order dated 13.12.2016 in convicting him under section 13(2) read with section 13(1)(d) of the Prevention of Corruption Act, 1988 (hereafter ‘1988 Act’) and sentencing him to undergo rigorous imprisonment for two years and to pay a fine of Rs.2,000/-(rupees two thousand), in default, to undergo further R.I. for one month.

2. The petitioner along with co-accused Saroj Kumar Mishra, Prasanta Kumar Patra and Abakash Padhy were charged under section 13(2) read with section 13(1)(d) of the 1988 Act along with offences punishable under sections 420, 468, 201 and section 120-B of the Indian Penal Code on the accusation of misappropriating government money to the tune of Rs.1,50,000/-(one lakh fifty thousand) in connivance with each other.

The learned Trial Court acquitted the co-accused Abakash Padhy of all the charges. The petitioner and the other two co-accused persons namely Saroj Kuamr Mishra and Prasanta Kumar Patra were also acquitted of the charges under sections 420, 468, 201 and 120-B of the Indian Penal Code but they were found guilty under section 13(2) read with section 13(1)(d) of the 1988 Act.

3. The prosecution case, in short, is that pursuant to an allegation of misappropriation of government money of Rs.1,50,000/-by showing false execution of pot-hole repair work in NH 217 from 147 K.M. to 171 K.M. in the year 2004, an enquiry was taken up, in course of which it was ascertained that during the period 2002 to 2004, the petitioner was the S.D.O. of NH Sub-division, Balliguda, co-accused Saroj Kumar Mishra was the Executive Engineer, NH, Division, Berhampur and co-accused Prasanta Kumar Patra was the Junior Engineer of NH Section, Balliguda. During the said period, an estimate was made relating to periodical renewal of NH 217 and the same was sanctioned and agreement was executed on 19.02.2004 with contractor Sri Arun Kumar Choudhury relating to P.R. Coat of NH 217 from 148 KM to 154 KM for an amount of Rs.36,98,199/-with date of commencement and completion from 19.02.2004 to 18.06.2004 and further time extension was given upto 30.01.2005. The enquiry further revealed that while the said agreement was subsisting, another agreement was executed for the same portion of work with co-accused Abakash Padhy overlapping the earlier agreement with an estimate of Rs.4,64,881/-with the date of commencement and completion from 10.09.2004 to 09.03.2005. After execution of agreement with co-accused Abakash Padhy, co-accused Prasanta Kumar Patra made necessary entries relating to pot-hole repair work in the measurement book and an amount of Rs.1,50,000/-was paid to co-accused Abakash Padhy on 14.10.2004. It further came to light that pot-hole repair works from 147 KM to 171 KM was not actually executed and false bills were prepared and payment of Rs.1,50,000/-was shown. The Superintending Engineer, NH Circle (South), Bhubaneswar conducted an inspection and came to the conclusion that the agreement drawn by the Executive Engineer, NH, Division, Berhampur was unauthorized as another agreement over the same patch was already in force and it was further found that inflated rates were given to the Contractor in order to give undue financial benefit for executing pot-hole repair works and that the measurement books were not produced before him for his scrutiny.

4. The learned Trial Court in his impugned judgment has been pleased to hold that the prosecution has failed to bring home the offences under sections 420 and 468 of the Indian Penal Code in as much as since final bill had not been prepared, payment of Rs.1,50,000/-to co-accused Abakash Padhi in an inflated rate cannot b