JUDGMENT : Narasimham, J. - This is an appeal against the judgment of the Special Judge, Bolangir, convicting the Appellant u/s 161 I.P.C. and sentencing him to rigorous imprisonment for one year. 2. Appellant Biranchi Narayan Misra was working as the Orderly Peon of the Taluq Magistrate at Birmaharajpur within Sonepur subdivision of the district of Bolangir from June 1950 to the end of August 1952. One Khetrabasi Mahanti was working during the said period as the Taluq Magistrate 1st class at Birmaharajpur. Both of them were sent up for trial for an offence u/s 5(2) of the Prevention of Corruption Act (Act II of 1947) on the ground that they habitually accepted illegal gratification. Five specific instances of acceptance of illegal gratification were mentioned in the charge, one of which was about their receiving Rs. 65/- from one Pareswar Sethi (P. W. 9). There was also a charge u/s 120B I.P.C. against both the Taluq Magistrate and his orderly peon. The trial was held in the Court of the Special Judge, Bolangir, who acquitted both of them of the charge u/s 120B I.P.C. He also acquitted the Taluq Magistrate of the charge u/s 5(2) of the Prevention of Corruption Act. But so far as the Appellant was concerned, the learned Judge held that though the allegations in respect of four of the specific instances of receipt of illegal gratification Were not proved it was satisfactorily established that he accepted Rs. 65/- from Pareswar Sethi. He, therefore, reduced the offence of the Appellant to one u/s 161 I.P.C. and sentenced him to one year rigorous imprisonment. 3. To appreciate the case against the Appellant it is necessary to briefly refer to certain admitted facts. Pares war Sethi (P. W. 9) is a Dhobi of village Janakpur. One Bhanu Sethiani brought a case u/s 504 I.P.C. against him sometime in 1952 and that case was pending in the court of the Taluq Magistrate at Birmaharajpur. He had brought a counter case against Bhanu Sethiani which was, however, dismissed. One Tankadhar Karna (P. W. 10) of his village was his bailor in the case u/s 504 I.P.C. brought against him by Bhanu Sethiani. On one occasion Pareswar Sethi was unable to attend the court due to illness. His petition for adjournment was rejected and a non-bailable warrant was issued against him. One Tankadhar Karna (P. W. 10) of his village was his bailor in the case u/s 504 I.P.C. brought against him by Bhanu Sethiani. On one occasion Pareswar Sethi was unable to attend the court due to illness. His petition for adjournment was rejected and a non-bailable warrant was issued against him. Thereupon, he applied to the Sub-divisional Magistrate at Sonepur for transfer of the case from the file of the Birmaharajpur Magistrate; but that transfer petition was rejected by the then Sub-divisional Magistrate of Sonepur Mr. Suryanarayana (Ext. 19) on 14-7-52. The prosecution case is that soon after the rejection of the transfer petition the said Pareswar Sethi was advised by his lawyer Dhruba Tripathy to bring sufficient funds so as to enable him to apply for transfer of the case either at the district headquarters of Bolangir or at Cuttack. In pursuance of this advice the said Pareswar Sethi collected Rs. 60/- from his village and came to Birmaharajpur. It was alleged that the Appellant accosted him and suggested that instead of wasting money in fighting out the case at Bolangir and Cuttack he should pay Rs. 60/- to the Taluq Magistrate and that then he would be released. Pareswar however, felt somewhat suspicious and consulted two other co-villagers of his named Indramani Gadtia (P. W. 11) and Tankadhar Kama (P. W. 10). They both told him to do whatever he considered proper. It was then alleged that Pareswar paid Rs. 60/- to the Appellant who promised to hand it over to the Taluq Magistrate, and also paid Rs. 5/- to the Appellant for his share of the illegal gratification. Subsequently, Tankadhar refused to continue as a bailor for Pareswar and it was alleged that Appellant Biranchi himself fixed up one Ramprasad Hota of Laturpet as his bailor. 4. In the meantime several complaints against the corrupt activities of the Taluq Magistrate at Birmaharajpur had reached the ears of the Sub divisional Magistrate of Sonepur who made enquiries and got him suspended. Some other Magistrate was sent to Birmaharajpur who continued the case against Pareswar Sethi and convicted him of the offence u/s 504 I.P.C. The records of the case against Pares war were however reported to have been destroyed by fire which broke out in the premises of the Birmaharajpur Magistrate's Court sometime later. 5. Some other Magistrate was sent to Birmaharajpur who continued the case against Pareswar Sethi and convicted him of the offence u/s 504 I.P.C. The records of the case against Pares war were however reported to have been destroyed by fire which broke out in the premises of the Birmaharajpur Magistrate's Court sometime later. 5. As the Appellant has been convicted in respect of a specific charge of corruption, the only question for consideration in the present appeal is whether the prosecution has proved beyond reasonable doubt that Pares war Sethi handed over the sum of Rs. 65/- to the Appellant at the latter's request by way of illegal gratification for the purpose of getting him released in the criminal case u/s 504 I.P.C. then pending in the Court of the Taluq Magistrate at Birmaharajpur. The exact date of payment of the money is not clear. But according to the prosecution it took place sometime in July-August, 1952, soon after the dismissal of the transfer petition by the S.D.M. of Sonepur on 14-7.52. The earliest complaint about the payment of such illegal gratification was made by the said Pareswar Sethi before he S.D.M. of Sonepur on 25-9-52 more than a month or two after-the date 01 alleged payment. To prove the case, the prosecution has relied solely on the testimony of Pareswar Sethi (P. W. 9) and his two companions, namely, Tankadhar Karna (P. W. 10) and Indramani Gadtia (P. W, 11). Pareswar is admittedly an accomplice having abetted the commission of bribery by the Appellant and his evidence requires adequate corroboration. The learned Special Judge thought that P.Ws. 10 and 11 were disinterested witnesses and their evidence would suffice for the purpose of corroborating the testimony of Pareswar. I, however, notice that these two witnesses (P. Ws. 10 and 11) have not fully corroborated the statement of Pares war about the circumstances under which the payment was said to have been made. Thus P. W. 10 while supporting Pareswar's statement about the demand of the sum by the Appellant and Pareswar seeking his advice on the matter, has attempted to exonerate himself by saying that he did not see the actual payment of money by Pareswar to the Appellant but that he went away. P. W. 11, however, stated that he and Tankadhar were standing at the spot and that they saw Pareswar paying the sum to the Appellant. P. W. 11, however, stated that he and Tankadhar were standing at the spot and that they saw Pareswar paying the sum to the Appellant. Pareswar's evidence on this point is slightly different. He stated that he counted the sum of Rs. 60/- and handed it over to Indramani and that it was the latter who gave it to the Appellant in the presence of Tankadhar. This serious discrepancy as to who actually paid the money to the Appellant cannot be so easily brushed aside. It may be that the Gadtia (P. W. 11) was trying to disown all responsibility for payment being apprehensive that otherwise he might also be held an accomplice in the same position as P. W. 9. At any rate if the evidence of P. W. 9 is to be accepted P. W. 11 took the money from him and handed it over to the Appellant knowing fully the circumstances under which the money was demanded and was being paid. His position would therefore become that of an accomplice and his evidence cannot really corroborate the evidence of P. W. 9. Moreover there is a slight discrepancy between his evidence anti that of P. W. 9 as to the approximate time when payment was made. According to him it took place at 2 to 3 p. m. whereas according to P. W. 9 it took place at about 8 or 9 a.m. P.V. 10 Tankadhar, however, estimated the time to be about 11 a.m. 6. Doubtless, if there had been some independent corroboration of the evidence of these three witnesses either about the demand of the money by the Appellant or about his subsequent conduct in taking unusual interest 01 behalf of P. W. 9 I might have been inclined to support the conviction based on their testimony. But I find absolutely no corroboration of their evidence. No contemporaneous document is available and the earliest written report about these allegations was made nearly two months later on 25.9.52 by which time the allegations of corruption against the Taluq Magistrate had become so notorious in the locality that his superior officer namely, the S.D.M. of Sonepur had already started departmental proceedings. 7. On the evidence of P. W. 9 it is clear that corroborative evidence was available and for some inexplicable reason that has been withheld. 7. On the evidence of P. W. 9 it is clear that corroborative evidence was available and for some inexplicable reason that has been withheld. P. W. 9 stated that the payment was made at the shop of one Rabi Das. This Rabi Das has, however, been withheld from the witness-box and there is no satisfactory explanation for his non-examination. It may be that this Rabi Das did not witness the actual payment of money. But his evidence would have corroborated the presence of P. Ws. 10 and 11 at the spot, the seeking of their advice by P. W. 9 and the conversation that might have taken place between the three. Hence, this material witness ought to have been examined. Moreover, the Pleader for Pares war (Dhruba Tripathy) who was said to have advised Pareswar to bring some money from his village for the purpose of filing a transfer petition either at Bolangir or at Cuttack would have corroborated the testimony of P. W. 9 about his bringing money from his village. He has also been withheld from the witness-box for no satisfactory reason. Again, according to P. W. 9 after he paid the money to the Appellant, Tankadhar (P. W. 10) refused to continue to be his bailor and then the Appellant persuaded one Ramprasad Hota of Laturpet whom P. W. 9 never knew before, to be his bailor. This Ramprasad Hota would therefore have been the best witness to prove the extraordinary interest which the Appellant took on behalf of P. W. 9. He has also not been examined as a witness in the case for some inexplicable reason. 8. Reviewing the entire evidence I consider that on c the bare testimony of P. Ws. 9, 10 and 11 it will be unsafe to sustain the conviction and the Appellant can claim the benefit of doubt. 9. I would therefore allow the appeal, set aside the conviction and sentence and acquit the Appellant. 10. Appeal allowed. Final Result : Allowed