Judgement

FAZL ALI, J. :- In this appeal by special leave, the appellant has been convicted for criminal misconduct under Section 5 (2) read with Section 5 (1) (c) of the Prevention of Corruption Act, 1947 and sentenced to rigorous imprisonment for three years. He has also been convicted under Section 5 (1) (d) of the Prevention of Corruption Act but no separate sentence has been passed there-under. The appellant preferred an appeal to the High Court of Orissa against the order of the Special Judge which was, however, dismissed, and the convictions and sentences imposed on him were confirmed by the High Court. Thereafter an application for leave to appeal to this Court was made before the High Court, which having been refunded the appellant obtained special leave from this Court, and hence this appeal.

2. After going through the judgments of the Courts below, we are constrained to observe that the High Court as well as the Trial Court have made a wholly wrong approach in applying the provisions of the Prevention of Corruption Act in the case of the appellant. Put briefly, the prosecution case was as follows :

3. The appellant was the Additional District Magistrate. Cuttack from September, 1964 to June, 1966 and in that capacity he was in overall charge of the Nizarat and land acquisition Sections of the Collectorate. Sayed Allamuddin Ahmed P. W. 8 was the District Land Acquisition Officer and one A. Ballav Pradhan P. W. 9 was the Nizarat Officer, whereas Prahlad Mahapatra P. W. 1 was the Nazir and Rajkishore Das P. W. 2 was the Assistant Nazir under P. W. 1. P. W. 3 Bhakta Charan Mohanti was the Land Acquisition Inspector. It appears that a number of lands had been acquired by the Government for certain public projects in various village particularly Mauza Balichadrapur with which we are concerned in the present case. A huge compensation amount to be given to land-owners had been deposited in the treasury for payment to them. It appears that a sum of Rs. 31,793.85 had been disbursed by July 24, 1964, leaving a balance of Rs. 11,650.61 but no disbursement could be made between July 24, 1964 and January 20, 1965, as the villagers refused to accept the payments and wanted the Land Acquisition proceedings to be withdrawn. The prosecution case further is that the appellant as Additional District Magistrate attended a meeting at the Secretariat in the office of the Secretary of Works Department at Bhubaneswar on September 25, 1964, where certain decisions were taken. There appears to be some divergence of opinion between the appellant and the prosecution on the deliberation of the aforesaid meeting which we shall consider later. It is further alleged that on January 9, 1965 the appellant directed the Nazir to pay him a sum of Rs. 10,000/- from the cash which remained with the Nazir P. W. 1 for the purpose of distributing the amount to the land-owners of the village Balichandrapur. As, however, the A. D. M.s visit to Balichandrapur could not materialise because the Executive Engineer with whom he was to go there was not available, the visit was postponed and the A.D.M. went to some other place. On January 20, 1965, the appellant again took a sum of Rs. 10,000/- from the Nazir and decided to visit the village Balichandrapur along with the Executive Engineer and the Land Acquisition Inspector. It is said that the S. D. O., P. W.D., also accompanied the party to the village Balichandrapur and the case of the appellant is that the Land Acquisition Inspector also travelled to Balichandrapur with the appellant, though this fact is disputed by the Land Acquisition Inspector. It is, however, the admitted case of the prosecution that there was no disbursement in village Balichandrapur and thereafter the amount of Rs. 10,000/- was not deposited with the Nazir but remained in the personal custody of the appellant who appears to have retained it dishonestly for about six months. This is gravamen of the charges against the appellant. We may also me