(Prayer: This Criminal Appeal is filed u/s 378(1)(3) of Cr pc praying to a) Grant Leave to appeal against the judgment and order of acquittal dated 30.01.2015 passed by the court of the iii addl. dist. and sessions and spl. court for trial of cases relating to prevention of corruption act, d.k., Mangalore in spl.c.no.2/2005 acquitting the respondents of the offence p/u/s 7,13(1)(d) r/w sec 13(2) of p.c. act; b)set-aside the aforesaid judgment and order of acquittal of the offences p/u/s 7, 13(1)(d) r/w 13(2) of the p.c. act dated 30.01.2015 passed by the court of the iii addl. dist. and sessions and Spl. Court for trial of cases relating to prevention of corruption act, d.k., Mangalore in spl.c.no.2/2005 by allowing the appeal; c) convict ane sentence the respondents for the aforesaid offences p/u/s 7,13(1)(d) r/w 13(2) of p.c. act, with which they have been charged and tried in accordance with law.)

Cav Judgment:

1. This appeal is by the State, represented by Karnataka Lokayukta Police being aggrieved by the judgment and order dated 30.01.2015 passed in Special Case No.2/2005 on the file of III Additional District and Sessions Judge and Special Court, D.K., Mangalore (hereinafter referred to as the trial Court for brevity) acquitting the accused persons for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (PC Act for brevity).

2. Case of the prosecution is;

                  (a) that one Sheshappa Gowda was possessing a single barrel muzzle loading gun with a valid license. That on 27.11.2003, one Sathish-accused No.2 who was working as constable at Uppinangadi Police Station had come along with one Bhaskar to his house asking him to produce the said gun and the license for the purpose of its examination and has asked him to collect the same from the Police Station. That when he went to the Police Station, G. Omprakash-accused No. 1 who was working as a Police Sub-Inspector in the said station had demanded Rs.3,000/- to be paid as bribe to return the gun. That when he refused to pay the bribe, accused No. 1 threatened that the gun would be produced before the Court, and he could have it released therefrom.

                  (b) On 05.12.2003, once again he approached accused No. 1 but he was threatened and sent away. As he was not willing to pay the bribe amount, his son, Janardhana, approached the Lokayukta Police on 06.12.2003 and narrated the incident. The Lokayukta Police had given him a tape recorder, and on 08.12.2003, Janardhana and his father approached accused No. 1 in the Police Station and requested to return the gun. Again, accused No.1 demanded a bribe amount of Rs.3,000/-. After negotiation with accused No.2 the bribe amount was reduced to Rs.2,000/- which conversation was recorded in the tape recorder.

                  (c) That accused No.2 had asked the said Janardhana to come on 09.12.2003 along with the bribe amount and to take back the gun. That on 09.12.2003 said Janardhana approached Lokayukta Police along with the tape recorder and lodged the complaint on the same day before Lokayukta Police. Accordingly, a case was registered in Crime No.5/2003 for the offences punishable as noted above.

                  (d) Pursuant to the registration of the above crime on 09.12.2003, the Investigation Officer completed the pre-trap formalities. One Shri Narayana Bhat as a shadow witness and one Claudy D'Zousa, panch witness along with Janardhana entered the Office of the accused. Accused No. 2 demanded the bribe amount, which was paid to him by Janardhana. That accused No.2 kept the bribe amount in his shirt pocket, which was in the resting room of the Police Station. Accused No.2 asked Janardhana to take the gun with him. As instructed upon Janardhana giving a signal, the Lokayukta police raiding team caught accused No.2 and his hands were washed in Sodium Carbonate solution, which turned pink. The trap was successful. The bribe amount was recovered. Thereafter, post-trap formalities were completed. The charge sheet was filed.

3. Since the accused persons pleaded not guilty and sought trial, the prosecution examined the complainant as PW1, the panch witness, namely, Claudy D'souza as PW2, the shadow witness, Narayana Bhat, as PW3, the ASI as PW4, the police constable as PW.5, Sheshappa Gowda as PW6, police constables belonging to Lokayuktha police station as PWs 7 and 8, Investigation Officer as PW9 and other official witnesses as PWs10 and 11 and produced 11 Material Objects as MO.1 to MO.11 and exhibited 35 documents as Ex.P1 to Ex.P.35.

4. Statement of the accused was recorded under Section 313 of the Code of Criminal Procedure and exhibited 5 documents as Ex.D1 to Ex.D5.

5. The trial Court framed the following points for its consideration;

                  "(1) Whether the prosecution proves beyond doubt that the accused Nos.1 and 2 in order to do favor or official favor demanded illegal gratification from the complainant and his father to the tune of Rs.2000?

                  (2) Whether the prosecution proves beyond doubt that accused No.2 at the instance of accused No.1 received illegal gratification?

                  (3) What order?"

6. On appreciation of evidence, the trial Court answered point Nos. 1 and 2 in the negative and consequently acquitted the accused for the offences punishable as noted above. Being aggrieved, the State is before this Court in this appeal.

7. Sri Venkatesh S. Arbatti, learned counsel appearing for the State submitted that ;

                  (a) PW1 to PW9 have supported the case of the prosecution, clearly establishing factum of accused Nos.1 and 2 demanding and receiving the bribe amount of Rs.2,000/- from the complainant to do the official favour.

                  (b) There is clear evidence of accused No.2 taking the gun from the house of PW6 under the guise of examining it and making PW1 and PW6 to repeatedly approach the police station seeking release of it. There is also evidence of accused persons demanding the bribe amount of Rs.3,000/-.

                  (c) that there was no allegation or complaint against PW1 and PW6 of they possessing the firearm without valid license, or of they committing any offence under the Arms Act.

                  (d) that accused No.2 has not explained the reason for he taking the gun from the lawful possession of PW6 which indicates the ulterior intention and motive of the accused in taking the gun illegally to extract bribe money from PW1 and PW6.

                  (e) that the trial Court erred in holding prosecution had not proved the pendency of any official work of PW1 with the accused at the time of filing of the complaint.

                  (f) that the accused have not disputed the recovery of tainted notes from the shirt pocket of accused No.2. It is the case of the accused that the tainted notes were thrust upon accused No.2. No explanation is given with regard to possession of the money, as such presumption was required to be drawn under Section 20 of the PC Act.

                  (g) The fact that, upon receipt of the bribe amount, the gun was returned to the complainant is neither disputed nor denied. The evidence of PW2 and PW3 has been corroborated with the evidence of PW1 and PW6 and the facts and circumstances, read holistically, would establish the case of the prosecution beyond reasonable doubt.

                  (h) that the money recovered from the shirt pocket of accused No.2 tallied with the notes mentioned in the entrustment Mahazar. This has been corroborated by the evidence of PW4 and PW5 who were present at the time of the trap. There is no personal ill-will or grudge between the accused and the prosecution witnesses.

                  (i) that the trial Court at paragraph No.20 of the impugned judgment has, though held that the evidence of PW1 and PW6 coupled with the documents available on record would show that there was demand by accused Nos.1 and 2, has however disbelieved evidence regarding the trap and seizure at paragraph Nos.21 to 31. This is contrary and conflicting to the very understanding of the trial Court.

                  (j) that since even according to the trial Court demand stands proved, it ought to have drawn the presumption under Section 20 of the PC Act which encompasses all eventualities such as acceptance, obtainment, attempt to accept, or attempt to obtain. Thus, Section 7 of the PC Act can be invoked even when an attempt being made is proved.

                  He relies upon the following judgments in support of his submissions;

                  (i) SONELAL TIWARI VS. STATE OF M.P. reported in (1998) 2 SCC 431

                  (ii) HAZARI LAL VS. STATE (DELHI ADMINISTRATION) reported in (1980) 2 SCC 390.

                  (iii) M. NARSING RAO VS. STATE OF ANDHRA PRADESH reported in (2001) 1 SCC 691/ AIR 2001 SC 318..

                  (iv) P. SARANGAPANI (DEAD) THROUGH LR. PAKA SAROJA VS. STATE OF ANDHRA PRADESH CRL.A.NO.2173/2011 DATED 21.09.2023.

                  (v) NEERAJ DUTTA VS. STATE (GOVERNMENT OF NCT OF DELHI) reported in (2023) 4 SCC 731.

                  (vi) CHANDRAPPA VS. STATE OF KARNATAKA reported in (2007) 4 SCC 415.

                  (vii) SITA SOREN VS. UNIONO OF INDIA reported in (2024) 5 SCC 629.

                  (viii) STATE OF KARNATAKA BY LOKAYUKTA VS. C. CHAND SAHEB reported in ILR 2007 KAR. 1106.

8. Sri P.P. Hegde, learned Senior Counsel appearing for accused-respondent Nos. 1 and 2 submitted:

                  (a) that there is absolutely no proof of demand for bribe, and the prosecution has failed to establish this essential fact to bring home the guilt.

                  (b) The observation made by the trial Court at paragraph 20 of the impugned judgment is subject to proof of trap and seizure, which the prosecution has failed to establish.

                  (c) That the prosecution had allegedly asked PW1 to record the conversation in a tape recorder. Cassettes in this regard have been produced as MO3 and MO9. PW1, PW3 and PW9 in their evidence, have specifically spoken about the conversation recorded in the cassette being not audible.

                  (d) PW6 the father of PW1 in his evidence has stated that he has not disclosed the demand made by accused No.2 to his son-PW1. There is inconsistency in the versions of PW6 and PW1 with regard to the demand made by accused Nos.1 and 2.

                  (e) That the trial Court has disbelieved the case of seizure of the gun.

                  (f) Thus, in these circumstances, the trial Court ought not to have held that the prosecution has proved the fact of demand of bribe by accused Nos.1 and 2 on preponderance of probabilities.

                  (g) Testimony of the shadow witness PW3 has remained untrustworthy, as he himself admitted to having watched the events through the window outside the room.

                  (h) That even according to the trial Court prosecution has failed to prove the acceptance of bribe money by the accused Nos.1 and 2. That the seizure and recovery of the money are not in accordance with law. Even the witnesses have not supported the case of the prosecution.

                  (i) That the trial Court has found possibility of hands of accused No.2 were touched in the process of search without he having anything to do with the bribe money. Therefore, the phenolphthalein test has been rightly rejected by the trial Court.

                  (j) That the shirt in which the bribe money was allegedly found has not been proved to belong to the accused persons. The chit which was allegedly found in the said shirt has not been produced.

                  (k) The trial Court is thus justified in rejecting the case of the prosecution.

                  He relies upon the following judgments in support of his submissions;

                  (i) STATE OF LOKAYUKTA POLICE, DAVANAGERE VS. C.B. NAGARAJ reported in 2025 INSC 736

                  (ii) JAGTAR SINGH VS. STATE OF PUNJAB reported in (2023) 19 SCC 498

                  (iii) ROOPWANTI VS. STATE OF HARYANA AND OTHERS reported in (2023) 18 SCC 555

                  (iv) STATE OF PUNJAB VS. MADAN MOHAN LAL VERMA reported in (2013) 14 SCC 153.

                  (v) STATE OF KERALA AND ANOTHER VS. C.P. RAO reported in (2011) 6 SCC 450

                  (vi) STATE OF MAHARASHTRA VS. DNYANESHWAR LAXMAN RAO WANKHEDE, reported in (2009) 15 SCC 200.

                  (vii) V.VENKATA SUBBARAO VS. STATE REPRESENTED BY INSPECTOR OF POLICE, A.P. reported in (2006) 13 SCC 305.

                  (ix) THE STATE OF ASSAM VS. MOINUL HAQUE@MONU reported in 2026 INSC 386

                  (x) SHARNAMMA CLAIMS TO BE WIFE OF ANNAYYA VS. RENUKA @

                  KAVITA AND OTHERS reported in RSA 7034 of 2011.

9. Heard and perused the records.

10. The points that arise for consideration are;

                  “ (1) Whether the trial Court is justified in holding that the prosecution has proved the factum of demand of bribe as found at paragraph 20 of the impugned judgment?

                  (2) Whether, in the facts and circumstances of the case, the trial Court is justified in acquitting the accused persons for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988?”

DISCUSSION/ANALYSIS:

REGARDING POINT NO.1:

On the factum of demand for payment of bribe by Accused Nos.1 and 2:

11. Trial Court, while dealing with the allegation of demand of illegal gratification at paragraphs 15 to 19 has dealt with the evidence produced by the prosecution with regard to seizure of the gun and the purported demand made by accused Nos.1 and 2. At paragraph 20 the Trial Court has held as under;

                  “ 20. The above evidence of PW1 and PW6 coupled with the documents available on record show that there was demand by accused Nos.1 and 2 though such demand is not conclusive. In the considered opinion of this court, the above evidence is sufficient enough to raise a presumption that there was a demand. However, such presumption is subject to the proof in respect of this seizure. In other words, in case the prosecution established there is a seizure of tainted money from accused No.2, then the burden shifted to the accused to give proper explanation and cogent evidence that there was no such demand. In the case on hand, except the above prosecution evidence and the cross-examination of PW1 and PW6, there is nothing else which has been brought independently by the accused Nos.1 and 2. Under these circumstances, the oral evidence of PW1, though has many discrepancies is sufficient enough to hold that there was a demand. Also the minor discrepancies in the evidence of PW1 and PW6 could not be materially to nullify any such demand. Further the Ex.D5, as well as Ex.P3 do not inspire confidence of this Court to believe them. Ex.D5 may contain an information that accused No.1 was not present in the police station from 9:30 AM till in the evening on 8.12.2003 but it do not rule out the possibility that of accused No.1 might have come back to police station at about 10:30 AM. He might not have taken charge of the police station as station-house officer for various reasons. Therefore, the available evidence on record is sufficient enough to hold that there was a demand and the standard of evidence required for this is not that of beyond reasonable doubt”.

12. Learned Senior Counsel appearing for the accused Nos. 1 and 2 submitted that the though the trial Court has acquitted the accused persons of the offences alleged, trial Court erred in holding that there is a presumption of demand of the bribe amount. That since the said finding has gone against them, in the appeal filed by the prosecution, accused-respondents are entitled to raise grounds against the said finding given by the Trial Court.

13. Learned counsel for the appellant-State fairly concedes to the position of law that in an appeal by the State against the acquittal the accused in entitled to seek redressal against certain findings given in the judgment impugned which are addressed to his interest.

Position of law dealing with appeal against acquittal:

14. In the case of ROOPWANTI v. STATE OF HARYANA AND ANOTHER, reported in (2023) 18 SCC 555, the Apex Court at paragraphs 7 to 10 has held as under:

                  7. In cases where a reversal of acquittal is sought, the courts must keep in mind that the presumption of innocence in favour of the accused, on grounds of it surviving the rigours of a full trial, is strengthened and stands fortified. The prosecution then, while still working under the same burden of proof, is required to discharge a more onerous responsibility to annul and reverse the fortified presumption of innocence. This fortification of the presumption of innocence has been held in a catena of judgments by this Court.

                  8. In Allarakha K. Mansuri v. State of Gujarat [Allarakha K. Mansuri v. State of Gujarat, (2002) 3 SCC 57 : 2002 SCC (Cri) 519] , this Court has held that in cases of reversal of acquittal, where two views are possible, the view which favours the accused has to be adopted. For the sake of convenience, the relevant paragraph of the judgment is being produced hereunder : (SCC p. 62, para 6).

                  “6. The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.”

                  9. Further, in Suman Chandra v. CBI [Suman Chandra v. CBI, 2021 SCC OnLine SC 3425] wherein the acquittal of the accused was challenged, this Court held that while exercising its powers to reverse an acquittal, the order of the trial court must not only be erroneous, but also perverse and unreasonable. The relevant paragraph of the judgment is being extracted herein : (SCC OnLine SC para 3)

                  “3. … It is well settled law that reversal of acquittal is permissible only if the view of the trial court is not only erroneous but also unreasonable and perverse. In our considered opinion, the view taken by the trial court was a possible view, which was neither perverse nor unreasonable, and in the facts and circumstances of the present case, ought not to have been reversed or interfered with by the High Court.”

                  10. Similarly in Mrinal Das v. State of Tripura [Mrinal Das v. State of Tripura, (2011) 9 SCC 479 : (2011) 3 SCC (Cri) 810] , this Court held that interference in a judgment of acquittal can only be made if the judgment is “clearly unreasonable” and there are “compelling and substantial reasons” for reversing the acquittal. The relevant paragraph of the judgment is being reproduced herein : (SCC p. 489, para 14)

                  “14. … An order of acquittal is to be interfered with only when there are “compelling and substantial reasons”, for doing so. If the order is “clearly unreasonable”, it is a compelling reason for interference. When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed.”

15. In the case of CHANDRAPPA V. STATE Of KARNATAKA reported in (2007) 4 SCC 415 at paragraph 42 has held as under:

                  "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:

                  (1) An appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.

                  (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.

                  (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusions”, “glaring mistakes”, etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasize the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

                  (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.

                  (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.

Position of law on the aspect of demand and acceptance:

16. In the case of STATE OF PUNJAB VS. MADAN MOHAN LAL VERMA reported in (2013) 14 SCC 153, at para 11 The apex Court has held as under;

                  11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness. In a proper case, the court may look for independent corroboration before convicting the accused person. (Vide Ram Prakash Arora v. State of Punjab [(1972) 3 SCC 652 : 1972 SCC (Cri) 696 : AIR 1973 SC 498] , T. Subramanian v. State of T.N. [(2006) 1 SCC 401 : (2006) 1 SCC (Cri) 401] , State of Kerala v. C.P. Rao [(2011) 6 SCC 450 : (2011) 2 SCC (Cri) 1010 : (2011) 2 SCC (L&S) 714] and Mukut Bihari v. State of Rajasthan [(2012) 11 SCC 642 : (2013) 1 SCC (Cri) 1089 : (2013) 1 SCC (L&S) 136] .)

17. In the case of Neeraj Dutta v. State (NCT of Delhi), reported in (2023) 4 SCC 731, Apex Court at paragraph No.88 has laid down the following principles of law governing the proof of factum of demand and acceptance;

                  “88. What emerges from the aforesaid discussion is summarised as under:

                  88.1. (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i) and (ii) of the Act.

                  88.2. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.

                  88.3. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.

                  88.4. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:

                  (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.

                  (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1)(d)(i) and (ii) of the Act.

                  (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act.

                  88.5. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.

                  88.6. (f) In the event the complaint turns “hostile”, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the presumption can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.

                  88.7. (g) Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act.

                  88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.”

                  (emphasis in original and supplied)

18. In the case of V.VENKATA SUBBARAO Vs STATE REPRESENTED By INSPECTOR OF POLICE, A.P., reported in (2006) 13 SCC 305, the Apex Court, dealing with the presumption to be drawn under Section 20 of the PC Act, at paragraph 24 has held as under;

                  "24. Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under:

                  “20. Presumption where public servant accepts gratification other than legal remuneration.—

                  (1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.”

19. Thus, the facts and the evidence made available on record in the present appeal need to be adverted to in the light of the aforesaid principles of law.

GENESIS OF THE CASE:

20. On 27.11.2003 one Satish- Accused No.2 and Bhaskar came to the house of PW6 at about 12:30 p.m. and asked him to produce the gun on the pretext of examining the same, and took the said gun and the license, asking PW6 to collect the same from the Police Station. When PW6 went to the Police Station, Sri. G. Om Prakash-accused No.1 had demanded bribe of Rs.3,000/- to return the gun otherwise, he would produce the same before the Court. Again on 05.12.2003, when PW6 requested accused No.1, he threatened him and demanded Rs.3,000/-. PW6 informed this to his son, PW1. On 06.12.2003 PW1 approached the Lokayukta police, who gave him a tape recorder and asked him to record the conversation with accused No.1. As such, on 08.12.2003 PW1 along with his father PW6 approached accused No.1 at the police station, when requested to return the gun by reducing the demand of Rs.3,000/-, accused No.1 discussed the matter with Satish-accused No.2 and informed PW1 to give a sum of Rs.2,000/-. PW1 thereafter lodged a complaint on 09.12.2003 with the Lokayukta Police, requesting the suitable action to be taken. A cassette containing the conversation was reportedly handed over to the Lokayukta police.

Evidence regarding the fact of demand of bribe amount:

21. Prosecution has examined PW1, PW3 and PW6 to prove the fact of demand by accused Nos. 1 and 2.

22. PW1 in his deposition at paragraphs 4, 9, 18, 21 and 22 has deposed as under:

                  "4. On 8-12-2003, along with my father I came to Uppinangady Police Station. Accused No.1 was present in his chamber. I told him to return the gun and license. Accused No. 1 told me to give Rs.2,000/- out of Rs.3,000/-, and then asked Accused No.2 to come there, and myself and my father were sent outside. After sometime, we were called inside. When we went inside, we were told by accused No.1 that, he has already told to accused No.2 and that, we should talk to him. Then, accused No.2 told us to come on the next day and to take the gun and license by paying Rs.2,000/- as stated by accused No.1. I was also told that, if I come alone that will be all right. On that day, I was wearing two shirts. I had kept the tape recorder in the pocket, which was put on first, at the time of conversation.

                  9. When we went to the police station the Sub-Inspector was not there. However, the A2 was present then. Before meeting the A2 I switched on the tape recorder. At that time he told that, S.I. is not there and enquired with me as to whether I had brought the amount or not. These talks were held in the police station. Thereafter he took me to the chambers of S.I. The A2 asked me to pay the amount if I had brought it. Accordingly, I took out Rs.2000/- which was kept in the left pocket of my shirt and paid it to him. The A2 had received the said amount. The A2 has counted the notes. He told that, the license is with the S.I. and the gun is with him. Therefore, he took me inside the room, which is opposite to the police station and handed over the gun. While coming out from the said room, I signaled the Lokayuktha Police by taking out my chappal for repairs. The A2 put the said amount in the pocket of the shirt which was hanging there. At that time, panchas were also with me. Immediately, the Inspector and Panch No.1 along with the police.

                  18. The Lokayuktha Inspector asked the A1 as to whether he is in possession of gun license belonging to my father. Accordingly, the A1 took out it from a drawer and handed over it. The Lokayuktha Inspector has also inspected the gun license register and the signature of myself, panchas were taken. He has also verified the station house diary and took our signatures. The Lokayuktha Inspector also verified four to five registers and I have also signed it, but I do not remember it properly. If they are shown to me I can identify my signatures thereon. He also obtained the Xerox copies of the said registers.

                  21. On 9-12-2003 when I went to Uppinangady P.S., the SHO was present. However, the S.I. was not present. When we made the enquiries with the SHO he told that, SI has gone outside. However, the A2-Sathish is in the police station. Panch Witness No.1 Sri Narayan Bhat was witnessing through window regarding the payment of amount to the A2. After signaling the Lokayuktha police when the Lokayuktha Inspector came there, I have also narrated the above incident which took place to him. So also the Lokayuktha Inspector made the enquires with the Panch Witness No.1 Sri Narayan Bhat. He also narrated the events took place in the police station."

23. Thus, according to PW1, on 08.12.2003 Accused No.1 demanded the bribe money and the next day Accused No.2 had demanded and received the money while Accused No.1 was not in the station. PW1 has not spoken about Accused No.1 personally demanding the bribe amount.

24. PW3 is shadow witness, in his deposition at paragraphs 18, 19, 20 and 21 has deposed as under;

                  18. We reached Uppinangady police station at 6:15 PM at that time ASI was sitting outside the police station. The PW1 inquired with the ASI regarding presence of A1 in the police station, but the ASI told him that he has gone out. Further, PW1 has also made inquiries as to whether Sathisha (A2) was there or not. Then, the ASI told, A2 is present and showed him. Thereafter, the A2 took PW1 near the chambers of A1. The PW1 asked the A2 to handover the gun and the license to him. But, the A2 inquired with the PW1 as to whether he had brought the amount or not. Thereafter, PW1 told that he had brought the amount and paid a sum of Rs.2000/- to A2. The A2 had received the said amount in his right hand. The A2 told that, he would handover the gun and the license is with A1.

                  19. Thereafter, A2 took the PW1 to a room situated on the other side of the road of the police station. While proceeding to the said room PW1 gave signal outside the police station by removing his chappal and showing it as if it is being repaired. The said signal was given to the inspector and Lokayukta officials who were watching there. Before we went to the Uppinangady police station, earlier the inspector had given the instructions to PW1 to give such a signal.

                  20. When the above incident took place, I observed it through a window of the computer room, which is by the side of chambers of A1. I have also heard the conversation between PW1 and A1 and also saw payment of amount to A1.

                  21. I also followed the PW.1 to the said room. At that time, the A1 handed over the gun from the said room to the PW.1. Thereafter, the Inspector, the 2nd pancha and his staff assembled there. Then the PW.1 shown the A1 by saying that, the A1 had received the amount. The PW1 has also narrated the above incidents to the Inspector. I have also informed the Inspector about my observations."

25. Aforesaid deposition of PW3 has been disbelieved by the trial Court. The trial Court has found that as per sketch at Ex.P15, after entering into police station computer room is on west side of the Jagali and after entering into the station there is a lock up on the left side and the other rooms on the right side and just adjacent to the computer room the chambers of Accused No.1 is situated. That according to PW3 he was standing near the window and witnessing things transpired in the room. PW4 -ASI has deposed that he was sitting just by the side of the door of the room which is opposite to the place where the shadow witness -PW3 was standing.

26. As rightly taken note of by the trial Court PW4 could not have lost sight of PW3 standing and peeping into the window and PW3 being a stranger could not have been allowed by PW4 to peep into the chambers of Accused No.1. The trial Court has rightly disbelieved the version of PW3 witnessing the things that transpired inside the chambers of Accused No.1.

27. Admittedly, PW3 was not present at the spot as he was allegedly watching the entire episode from a window outside the chamber of Accused No.1. According to PW1 when he visited the police station, the accused No.1 was not present, and it was accused No.2 who had demanded and had received the bribe amount. However, PW3 has given inconsistent version. As seen at para 18 of his deposition above, he has deposed that Accused No.1 was absent and Accused No.2 demanded and received the money. At para 21 of his deposition he has stated that PW1 shown Accused No.1 by saying that Accused No.1 has received the amount.

28. PW6 in his evidence at paragraph 16 has deposed as under;

                  "16. It is not true to say that, at no point of time I talked with A2 at Uppinangady PS. I do not know the date when my son had visited Uppinangady PS. I do not remember if I had stated before Lokayukta PS at the time of recording my statement regarding my previous visit to Uppinangady PS. My son had talks with A2 but I did not have any talks with A2. On a Jagali situate outside the chambers of A1, my son had a talk with A2. I do not remember if I have stated before Lokayukta PS regarding the talks held between my son and A2. I have not stated before the Lokayukta PS that when we went to Uppinangady PS two or three days thereafter the A1 called the A2 in his chambers and thereafter the A2 returned back and told us to pay at least a sum of Rs.2000 or otherwise gun and the license would not be returned. I have not stated before the Lokayukta PS regarding demand of Rs.2,000 by the A2, but I have told it to my son. I have told so to my son in my house. I do not remember as to how many days thereafter I have told this demand of A2 to my son. When I told my son, I informed him, that the said amount was demanded by A1. I do not remember if I told my son regarding the demand of amount by A2 or not. I told my son that, there was a demand of Rs.3000. At no point of time. I told my son that there was a demand of Rs.2,000."

29. Thus, there is inconsistency and ambiguity in the deposition of PW1 and PW6 with regard to the actual demand made by Accused Nos.1 and 2. According to PW6 it is his son who had spoken to Accused No.2 and he has not stated anything before Lokayukta Police regarding Accused No.1 instructing Accused No.2 and thereafter Accused No.2 asking them to pay the bribe amount of Rs.2,000/-. That he has told the demand by Accused No.2 only to his son.

30. The Trial Court has also noted the aforesaid inconsistency in the versions of the witnesses but has however observed that a presumption can be drawn regarding the demand of bribe.

31. According to the counsel for the accused there cannot be a presumption of demand, the same has to be proved like any other fact. And that the contradiction in the depositions of PW1, PW6 and PW3 takes away the core of the prosecution case regarding demand of bribe amount by Accused No.1 and Accused No.2 on the day and time of the alleged incident.

32. Thus, there are inherent inconsistencies in the versions of PW1, PW3 and PW6 with regard to actual demand and payment made.

TAPE RECORDER:

33. The other evidence relied upon by the prosecution is the recording of a conversation in the tape recorder, which is produced as MO3 and MO9.

34. According to the prosecution, PW1 was handed over a tape recorder with an instruction to record the conversation with Accused Nos. 1 and 2 regarding the demand of the bribe amount. Ex.P14 is the seizure mahazar. At page 3 of the said document, there is a reference to the seizure of a tape recorder.

35. As rightly pointed out by the learned Senior Counsel for the accused -respondents, although the tape recorder has been seized in terms of Ex.P14 there is no reference with regard to its content.

36. PW1 in his deposition at paragraphs 23, 24 and 36 has spoken about the cassette-MO.3 and MO.9 not containing any audible material.

37. PW3 in his evidence at paragraph 51 has admitted that, on the basis of the cassette, he is not in a position to come to any conclusion as the voice in the cassette was not clear and audible.

38. Similar is the evidence of PW9 who, at paragraphs 71 and 76 of his deposition, stated that the contents of the said cassettes were not audible.

39. Said witnesses have also deposed that, except for the tape recorder, they do not have any other evidence to prove the fact of demand for payment of bribe by the accused-respondents.

40. Thus, as rightly contended by learned Senior Counsel appearing for the accused-respondents, since the prosecution has relied upon cassettes at MO3 and MO9 to prove the case of demand by accused Nos.1 and 2, and since the voice contained therein is not clear, the prosecution has failed to prove the factum of demand of bribe by the accused-respondents.

41. The trial Court has however held that presumption regarding the factum of demand can be drawn on the preponderance of probabilities, subject to proof of seizure and trap.

42. There cannot be presumption with regard to demand of bribe amount. As repeatedly held by the Apex Court the judgments referred to above, the proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of accused- public servant under Sections 7 and 13(1) (d) read with Section 13(2) of the PC Act. Therefore, the trial Court erred in holding that the demand of bribe amount could be presumed in the facts of the case.

                  Thus, the point No.1 is answered in the negative.

Regarding seizure and trap:

43. According to PW1 he paid the bribe amount of Rs.2,000/-to accused No.2 in the chambers of Accused No.1 who received and counted the said notes. That the accused No.2 had told him that the licence was with Sub Inspector-accused No.1, and the gun was with him. Thereafter, the accused No.2 took him to a room, which was situated at a distance opposite to the Police Station, and handed over the gun. While coming out of the said room, PW1 had signaled the Lokayukta Police as instructed, pretending to repair his chappal. Accused No.2 had put the said amount in the pocket of the shirt, which was hung on the wall of the room.

44. Immediately Lokayukta Inspector and Pancha No.1 along with other police personnel came to the spot. On enquiry accused No.2 denied receiving the amount. Thereafter, the Lokayukta Inspector asked the panchas to search the room. PW3-Narayana Bhat searched the room, and the bribe amount was found in one of the shirts out of the three shirts that were hung on the wall of the room. PW3 counted and verified the notes. As there was shortage of space in the room, they came over to the chambers of Accused No. 1 who was present by then. The Lokayukta Inspector asked Accused No.2 to dip his right hand in the sodium carbonate solution which turned into pink. Thereafter Lokayukta Inspector asked accused No.2 to dip his left hand, colour did not change. The amount was counted and verified, which is as per MO4, MO4(a).

45. In the cross-examination, PW1 has stated that;

                  (a) the shirts were searched by PW3 at the instance of Lokayukta Inspector. PW3 searched all the pockets of all three shirts by putting his hand. Amount was found in the second shirt hanging in the middle of three shirts. PW3 picked out the chit from the pocket of the shirt, as well as the amount. He took them out and counted the currency notes compared with the details in the entrustment mahazar. PW3 did not hand over the said notes to the Lokayukta Inspector, but he again put the same back into the pocket of the shirt. PW3 brought the shirt to the dressing room at the police station. Mahazar was drawn in the Chambers of the accused No.1 in the presence of accused No.2. He took 5 minutes to reach the dressing room at the police station. He did not remember the enquiry about the ownership of the shirts. Though the shirt contained a chit, he neither remember its size nor its contents. PW3 read the contents in the room; he does not remember whether it was in English or in Kannada. Signatures are obtained on the said chit. When the signatures are being obtained on the chit, the notes were in the hands of PW3. Thereafter, the chit containing the signatures was also put back in the pocket of the shirt by PW3. The amount was kept back in the first instance and thereafter chit was kept back. PW3 put back the said amount in the pocket as it is, but not in a cover. When they went to the police station building, they took the shirt along with them.

                  (b) The bribe amount was removed from the shirt pocket again in the chamber of accused No.1 by PW3. At that time accused No.2 was present. PW3 and the Lokayukta police had made enquiries with accused No.2 before taking the tainted notes. Accused No.2 was asked to give his explanation in writing. Accused No.2 gave the same in writing. The signature of PW1 was obtained on the statement given by accused No. 2 as per Ex.P13.

                  (c) Thereafter Lokayukta Inspector directed PW3 to take out the chit which was handed over to the Lokayukta Police. Both hands of Accused No.2 was immersed in the solution. Lokayukta Police Inspector conducted personal search of Accused No.2 at Uppinangady Police Station. They also searched pant, shirt and also his body. Before subjecting personal search by Lokayukta police he had directed PW3 to conduct personal search of Accused No.2 in Uppinangady Police Station. PW3 conducted personal search of Accused No.2 in the chambers of SI. He conducted the search of shirt, pant and body of Accused No.2 by both the hands.

                  (d) PW1 witnessed the said search by PW3. Nothing was found in both the hands, shirt, pant of Accused No.2. Thereafter Lokayukta police searched Accused No.2 for 2 minutes. Even then nothing was found. Accused No.2 was made to sit on the chair thereafter. His statement was recorded. The shirt which was brought from the dressing room was on a table during the process.

                  (e) Thereafter, Lokayukta police had directed PW3 to remove the amount from the shirt pocket. Chit was also taken out from the shirt pocket. Thereafter solution was prepared and the hands of Accused No.2 was dipped in the solution. Lokayukta Police inspector directed PW3 as to how the solution is to be prepared and thereafter got it prepared. PW3 mixed the solution. Thereafter PW3 dipped the right hand of the Accused No.2 in the said solution. At that time PW3 was holding Accused No.2 with right hand palm of the right hand of Accused No.2.

                  (f) Thereafter PW3 holding the left hand palm of Accused No.2 by his both hands and dipped in the solution. When the right hand palm of Accused No.2 was dipped in solution, it changed its colour, after the right hand palm of Accused No.2 was dipped, taken out then it was washed with the white cloth.

                  (g) That he gave the signal by standing at the door of dressing room, between the time of giving the signal by PW1 till arrival of Lokayukta police, no one entered the dressing room. Gun was in the dressing room when he signaled. It was kept beneath the bench. That Police Inspector questioned PW1 for about 2 minutes in the dressing room. He was not aware as to where exactly the amount was kept. He had not witnessed who had put the said amount in the shirt pocket and when.

                  (h) that when the bribe amount was being searched there was electricity, however it got disconnected. The staff of the Lokayukta police were having two torch lights, which was used for searching the bribe amount in the first instance. 4 Lokayukta police including PW3 searched the shelf and also two plastic bags kept on the floor with the help of torch light for about 5 minutes. The shirt hangers were at the distance of 2 to 3 feet from the place where PW1 was standing. PW3, police inspector-PW2 and PW1 were inside the room, while others were standing outside. PW3 was directed by Lokayukta Inspector to search the shirt. That as per the direction of PW1, PW3 got hands of Accused No.2 dipped into solution.

46. PW2 has also spoken to about PW3 taking out the amount and counting the same from the shirt pocket. He also spoke about Accused No.2 being taken to the Police Station from the room and regarding possibility of the Lokayukta Inspector holding the hands of accused No.2 while taking into the police station. That even in the police station PW3 took out the notes from the shirt and handed over to the police Inspector.

47. PW3 has identified the shirt MO.10, pocket of which he removed the notes from and counted and verified the numbers inside the room. That he handed over the notes to the Inspector after counting the same and comparing the numbers. He has also spoken about he taking shirt to the police station and counting the notes again in the police station in the presence of PW2. He also admitted he searching Accused No.2.

48. The trial Court while appreciating the evidence of PW1, PW2 and PW3, at paragraph 23 has come to the conclusion that the body search was conducted by PW3 at the instance of investigation officer-PW9. That after body search the shirt was brought to the police station. The trial Court has also taken note of fact that PW3 was holding the hands of Accused No.2 and thereafter hands of Accused No.2 were dipped in the solution. That trial Court has found the detail narration of the turn of events, indicate Accused No.2 was caught by hand by PW3 before his hands were washed in sodium carbonate solution at the police station. That PW3 had searched the shirt and currency notes in the shirt in the police resting room before the shirt was brought from dressing room to the police station. As such hands of PW3 were smeared with phenolphthalein powder before the shirt was brought to the police station from dressing room. That in the police station PW3 was allowed to touch Accused No.2 before the hands of Accused No.2 were washed with solution. That these circumstances are important set-back to the case of the prosecution. The trial Court has also found the possibility of the accused No.2 not touching the tainted currency notes but his hands were got smeared either by PW3 or PW9 while coming from the restroom to the police station where his hands were washed.

49. The trial Court has also found that in order to maintain sanctity of hand wash of Accused No.2 it was incumbent upon the raiding party or Investigating officer to do the wash before currency notes were searched in the shirt pocket at the resting room. The very fact that the PW9, PW2 and PW3 were eager to search the currency notes which was kept in the room and after searching and tracing the currency notes, it was brought to the police station which is across the road and the hand wash took place in the police station goes to show the possibility of smearing of the hands of Accused No.2 by one of the witnesses. As such the trial Court has declined to accept the sanctity of the trap process. The trial Court has also taken note of evidence of PW1 to PW3 regarding electricity supply being fluctuating and the process of search being made under torch light. These circumstances have contributed the acceptance of the version of Accused No.2 of he being innocent of the allegation.

50. This Court on reappreciation of evidence as noted above cannot take a different view than what is taken by trial Court and come to a different conclusion than the conclusion arrived at by the trial Court as prosecution has failed to establish the tainted money was found on the person of Accused No.2 and that he had received the same from PW1.

51. Another aspect of the matter to be seen is that according to PW1 he had paid the bribe amount to accused No.2 in the police station and thereafter walked across the road along with Accused No.2 from the police station to the resting room situated opposite thereof and during this time had not given the signal as instructed. It is after coming out the said room with the gun in his hand he had given the signal as instructed. This becomes seriously questionable as apparently he was instructed to give the signal soon after handing over of the bribe amount.

52. According to PW3, signal was given soon after payment of bribe amount before going to the room situated opposite to the police station, this is a serious infirmity. No explanation in the prosecution case as to the reason for PW1 not complying with the instruction, PW1 who had walked across the road and allowed all the events narrated above to take place and yet pleading ignorance, requiring searching of the bribe amount which according to him was paid in the chambers of Accused No.1.

53. Trial Court has also found the version of prosecution regarding PW1 holding the gun while coming out of the resting room after giving signal and later the gun being found beneath the bench to be doubtful. It has also found it strange that when the police station has an armory as per Ex.P15 there were no reason for gun to be kept in the resting room opposite to the police station which is not reserved for keeping the firearms.

54. Reliance placed on by the learned counsel for the appellant-State on the judgment of the Apex Court in the case of Sonelal Tiwari, Hazari Lal and M Narsing Rao (supra) are not applicable to the facts of the case as the very discovery of currency notes from the possession of accused No.2 has not been established by the prosecution.

55. Thus, the prosecution has failed to prove the effective search and seizure of the tainted bribe amount from the possession of accused No.2.

56. For the aforesaid reasons and analysis, the point No.2 raised above is answered in the affirmative. The trial Court is thus justified in passing the impugned order acquitting the accused for the offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, 1988.

Appeal is dismissed accordingly.