The acquittal in corruption cases necessitates clear and convincing evidence; lack of key witness undermines prosecution's case.

Judgment :

V. Narasingh, J.

1. Heard Mr. S. Nayak, learned counsel for the Petitioner and Mr. R. Agrawal, learned counsel for the Opposite Party.

2. This is an application filed under Section 378(2) of the Cr.P.C., 1973 by the Republic of India(CBI) seeking leave to appeal against judgment for acquittal dated 08.09.2017 passed by the learned Special Judge,C.B.I-II, Bhubaneswar in TR No.34 of 2010 (RC No.9(A)-2010), acquitting the Opposite Party, Head clerk, Flash Butt welding Plant(FBWP), South Eastern Railway, Jharsuguda from the accusation of committing offences under Section 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1908 on account of allegation that the Opposite Party-accused demanded and accepted illegal gratification of Rs.5,000/- (Rupees Five Thousand) from the complaint, abusing his position as a public servant to process the pension papers of the father of the complainant(Kapindra Kishan- P.W.9), who was working as Khalasi.

3. It is the case of the prosecution that the Kapindra Kishan, father of the complainant was working as a Khalasi in the Flash Butt Welding Plant (FBWP), South Eastern Railway, Jharsuguda and since the date of retirement of the father of the complainant-P.W.9 was on 31.05.2010 and he was illiterate, the complainant contacted the accused, who was working as a Head Clerk on 04.03.2010 for settlement of retirement dues and thereafter on 08.03.2010 at about 11 a.m., he again met the accused. On which date the accused gave him a list of the documents to be submitted for retirement dues claim and assured him that he will assist in the early processing of claim his father of retirement dues. After arranging the documents, it is the case of the prosecution that when the complainant went to the office of the accused on 06.04.2010 after checking the papers the opp. Party demanded illegal gratification of Rs.20,000/- for early processing of the matter.

4. And, when the complainant express inability to pay such huge amount, the Opp. party accused told him to pay Rs.5,000/-(Rupees Five Thousand)as upfront payment. On 08.04.2010 in his residence. After which he process the matter and the accused is also stated to have told the complainant(P.W.9) to pay the rest of the amount of Rs. 15,000/- before 30.04.2010.

5. On 06.04.2010 the complainant- P.W.9 stated to have lodged the complaint with the Superintendent of Police CBI Rourkela Unit and basing upon the same, the Superintendent of Police, CBI, Bhubaneswar registered R.C. Case No.9(A)/2010 on 07.04.2010 and instructed inspector Mr. S.B. Mishra to take up the investigation.

6. During the course of investigation, P.W.10-Trap Laying Officer(TLO) arranged two independent witnesses, namely, Sri Mahindra Kumar Pradhan-P.W.1, Grade-I Clerk, Office of the General Manager, MCL, Lakhanpur Area and Sri Sudhansu Chandra Naik- P.W.2, Senior Personal Assistant, Office of Area Personal Manager, MCL, IB Valley Area, Brajaraj Nagar in the appointed date i.e. 08.04.2010 at 5.30 p.m. all the team members as well as the complainant assembled at BSNL Inspection Quarters at Jharsuguda and pre- trap exercise was under taken. The TLO-P.W.10 Mr. Mishra explained the process. The complainant- P.W.9 handed over the alleged bribe amount of Rs.5,000(Rupees Five Thousand) in the form of three numbers of Rs.1000/- and twenty numbers of GC notes of the denomination of Rs.100/-. The same were smeared with phenolphthalein powder.

7. The procedure of noting down the number and denomination was duly followed and paper was handed over to witness Sri S.C. Nayak- P.W.2 for future reference. A