1. The sole accused in CC No.93/2008 on the files of the Enquiry Commissioner and Special Judge, Thrissur, has filed this criminal appeal under Section 374 of the Code of Criminal Procedure, challenging the judgment of conviction and sentence dated 06.02.2015 in the above case.

2. Heard the learned Senior Counsel appearing for the appellant and the learned Special Public Prosecutor for the respondent. Perused the verdict impugned and records of the Special Court.

3. Here, the prosecution alleges commission of offences punishable under Sections 7 and 13(1)(d) r/w. Section 13(2) of the Prevention and Corruption Act, 1988 (hereinafter referred to as 'PC Act, 1988') by the accused and the allegations is that in continuation of previous demand, the accused       demanded and accepted ₹1,000 as illegal gratification from one Radhakrishnan, who was examined as PW1, for the purpose of reducing the fine amount to the tune of ₹27,000 to ₹5,700 for the use of unauthorised electric consumption in relation to consumer No.1728.

4. The Special Court framed charge and tried the case. PW1 to PW11 were examined and Exts.P1 to P22 and MO1 to MO5 were marked on the side of the prosecution. Ext.D1 and Ext.D2 were marked on the side of the defence.

5. The Special Court, on evaluation of evidence, finally found that the accused committed offences punishable under Sections 7 and 13(1)(d) r/w. Section 13(2) of the PC Act, 1988 and accordingly, the appellant was convicted and sentenced as under:

                  “1. Under Sec. 7 of the Prevention of Corruption Act 1988, he shall suffer rigorous imprisonment for one year and shall pay fine of Rs.2,000/-(two thousand only), in default to undergo rigorous imprisonment for 15 days;

                  2.       Under Sec. 13(1) (d) r/w 13(2) of the Prevention of Corruption Act 1988, he shall suffer rigorous imprisonment for two years and shall pay fine of Rs. 2,000/-(two thousand only), in default to undergo rigorous imprisonment for 15 days;

                  3.       The period of substantive sentences shall run concurrently.

                  4.       The period of detention undergone by him from 16.04.2004 to 20.04.2004 shall be set off under Sec.428 Cr.P.C. His bail bond is cancelled.

                  MO1 series notes shall be refunded to PW1 and MOs 2 to 5 being valueless shall be destroyed, after the appeal period”

6. Having considered the rival submissions, points arise for consideration are,

                  1. Whether the Special Court went wrong in holding that the accused committed the offence punishable under Section 7 of the PC Act, 1988?

                  2. Whether the Special Court went wrong in holding that the accused committed offence punishable under Section 13(1)(d) r/w. Section 13(2) of the PC Act, 1988?

                  3. Whether the impugned verdict would require any interference by this Court.

                  4. Order to be passed.

7.     Point Nos.1 to 4 The learned Senior Counsel appearing for the accused vehemently attacked the credibility of PW1, whose sole evidence was relied upon by the Special Court to find demand and acceptance of ₹1000 as bribe by the accused at 10.40 am as on 16.04.2004. According to the learned Senior Counsel for the accused, during the cross-examination of PW1, he had denied the presence of an electric motor to draw water from the well and also the use of a disconnected motor for the purpose of using the same for construction. According to the learned Senior Counsel, in this case, as per Ext. P14(a) and (b), proved through PW6, it was found that Electricity Consumer No. 1728 was used for construction purposes, and the entry in Ext.P14(a) to that effect was made by PW6 on 09.02.2004. Thereafter, the accused, who was the Assistant Engineer, visited the site as on 14.03.2004 and found that “unauthorised additional load noted. Meter changed”. According to the learned Senior Counsel, even though the meter was changed as on 14.03.2004, this crime was registered at about 8.30 hours on 16.04.2004 on recording the statement of PW1, the complainant. According to him, as per Ext.P13 site mahazar prepared by the accused as on 14.03.2004 at about 11 hours also, unauthorised use of electricity for construction was noted. It is pointed out that during the cross-examination of PW5, who is none other than the Lineman of the Electrical Section, KSEB, Perinthalmanna, during the relevant period and who had accompanied the accused to inspect the site, it was found on inspection that 1HP motor was used for drawing water for construction purposes. Apart from that, in Ext.P12 observation mahazar prepared by the Inspector of Police, VACB, on 16.06.2004 also, there was mention regarding a motor and plug points and during cross-examination of PW1, he emphatically denied the availability of a motor and its use etc. Therefore, the evidence of PW1 is not trust-worthy to be acted upon.

8. Apart from that, the learned Senior Counsel pointed out an anomaly regarding the date in Ext.P3. Ext.P3 is a slip signed by the accused on 16.04.2004, according to the prosecution, with request to prepare a bill for 1 kW for a period of 34 days for the unathorised additional load for the consumer No.1728 PMA and in the slip, the amount also is calculated as 50 x 35 x 3 = ₹5,230. The learned Senior Counsel for the accused would submit that the date in Ext.P3, originally written as 15.04.2004 was corrected as 16.04.2004 and in order to substantiate his contention, he has placed Ext.D1, contending that the same is the carbon copy of Ext.P3 slip, showing the date as on 15.04.2004. In this connection, the evidence of PW10, through whom Ext.D1 also got marked in this case assumes significance. Here, the contention raised by the learned Senior Counsel for the accused is that there is manipulation in the date in Ext.P3 and the same also shadows doubt in the prosecution.

9. According to the learned Special Public Prosecutor, it is true that PW1, during his cross-examination, had denied the availability of a motor and its use. It is pointed out by the learned Special Public Prosecutor that even though the occurrence was in the year 2004, PW1 was examined after 10 years and therefore, he might not have remembered those aspects. However, the evidence of PW1 with regard to the demand and acceptance of ₹1,000 as bribe by the accused, though solitary in nature, is fully free from doubts and therefore, the contention raised by the learned Senior Counsel for the accused that PW1 is not a trust-worthy witness is unsustainable. Otherwise the prosecution succeeded in proving the guilt of the accused. Therefore, the verdict impugned would not require any interference.

10. Coming to the evidence to prove the demand, the prosecution relied on the evidence of PW1 alone, to prove the ingredients of demand, eventhough in the matter of acceptance of bribe by the accused, the prosecution relied on the evidence of PW1 and other witnesses including the evidence of recovery of the bribe money.

11. Now, it is necessary to address the ingredients required to attract the offences under Section 7 and Section 13(1) (d) r/w Section 13(2) of the PC Act, 1988. The same are extracted as under:

                  Section 7:- Public servant taking gratification other than legal remuneration in respect of an official act. – Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (C) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.

                  Section 13:- Criminal misconduct by a public servant. – (1) A public servant is said to commit the offence of criminal misconduct,-

                  a)       xxxxx

                  (b)      xxxxx

                  (c)      xxxxxx

                  (d)      If he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. xxxxx

                  (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.

12. In this connection, it is relevant to refer a 5 Bench decision of the Apex Court in [AIR 2023 SC 330], Neeraj Dutta Vs State (Govt. of N.C.T. of Delhi), where the Apex Court considered when the demand and acceptance under Section 7 of the P.C Act,1988 to be said to be proved along with ingredients for the offences under Sections 7 and 13(1) (d) r/w 13(2) of the P.C Act, 1988 and in paragraph 68 it has been held as under :

                  "68. What emerges from the aforesaid discussion is summarised as under:

                  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.

                  (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.

                  (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.

                  (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.

                  (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.

                  (f)      In the event the complainant 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 prosecution 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.

                  (g)      In so far 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) and (ii) of the Act.

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

13. Thus the legal position as regards to the essentials under Sections 7 and 13(1)(d)(i) and (ii) of the P.C Act, 1988 is extracted above. Regarding the mode of proof of demand of bribe, 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. 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. The mode of proof of demand and acceptance is either orally or by documentary evidence or the prosecution 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. 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.

14. In this connection, it is relevant to refer the latest decision of this Court in Sunil Kumar K. V. State of Kerala, reported in 2025 KHC 983. In paragraph No.12 of the judgment, this Court observed the ingredients as under:

                  “12. Indubitably in Neeraj Dutta’s case (supra) the Apex Court held in paragraph No.69 that there is no conflict in the three judge Bench decisions of this Court in B.Jayaraj and P.Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion there is no conflict between the judgments in the aforesaid three cases. Further in Paragraph No.70 the Apex Court held that in the absence of evidence of the complainant (direct/primary,oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and 13(1)(d) r/w Section 13(2) of the Act based on other evidence adduced by the prosecution. In paragraph No.68 the Apex Court summarized the discussion. That apart, in State by Lokayuktha Police’s case (supra) placed by the learned counsel for the accused also the Apex Court considered the ingredients for the offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the PC Act,1988 and held that demand and acceptance of bribe are necessary to constitute the said offences. Similarly as pointed out by the learned counsel for the petitioner in Aman Bhatia’s case (supra) the Apex court reiterated the same principles. Thus the legal position as regards to the essentials to be established to fasten criminal culpability on an accused are demand and acceptance of illegal gratification by the accused. To put it otherwise, proof of demand is sine qua non for the offences to be established under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988 and dehors the proof of demand the offences under the two Sections could not be established. Therefore mere acceptance of any amount allegedly by way of bribe or as undue pecuniary advantage or illegal gratification or the recovery of the same would not be sufficient to prove the offences under the two Sections in the absence of evidence to prove the demand.”

15. In this matter, apart from the evidence of PW1, the evidence of PW2, the decoy witness as well as PW10, the trap laying officer were given emphasis by the prosecution to prove the ingredients of the offences. PW1 deposed that under his supervision, construction of a house building, after demolishing the old building, was going on in the property of his father-in-law, Sri.Balagopalan Nair, in Perinthalmanna. In connection with the new construction, the electricity connection No.1728 had been temporarily installed on a wooden plank. The consumer was remitting the minimum amount. While so, he knew that on 14.03.2004, the officials of the Board had disconnected the electric supply. Thereafter, on 15.03.2004, he went to the electricity office and met the accused, the Asst. Engineer. Then he was told that the connection was unauthorised, that it could not be re- connected without paying a fine of ₹27,000. He met the accused several times and requested him to close the matter by realising a nominal fine. At last, on 13.04.2004 afternoon, when he met the accused, he asked him to pay a fine of ₹5,700 and demanded ₹1,000 as illegal gratification for the said reduced assessment. He was told that the amount was not for reconnecting the supply, but to relieve them from future difficulties. He was not prepared to pay any bribe and thus, on 16.04.2004, approached the Dy.S.P., VACB, Malappuram at 8 – 8.30 AM and gave Ext.P1 complaint. At about 9 AM, two gazetted officers reached the office and both were mutually introduced. They perused Ext.P1 complaint. Then he tendered two 500 rupee notes, MO1 series, which were denoted by the Dy.S.P. with letter ‘L’. Then all of them proceeded to the next room where phenolphthalein test was demonstrated by a police constable using a 100 rupee note. After applying phenolphthalein powder on the note, when the note as well as the hands of the police constable were dipped in sodium carbonate solution, it turned pink and that solution is marked as MO2. Later, phenolphthalein powder was smeared on MO1 notes. After removing all other things from his pockets, the notes were placed in the pocket by the police constable. He was specifically instructed to pay the money to the Engineer only on further demand. He was also instructed about the signal to be given on accepting the money by the Engineer. All the matters transacted in the office were recorded in Ext.P2 mahazar. Later, by about 9.30 AM, all of them proceeded to Perinthalmanna and reached about 50 meters away from the KSEB office. He stepped out of the vehicle and moved to the office on foot. A police constable followed him. He reached the office at about 10.40 AM. When he met the accused, Asst. Engineer, he asked to pay ₹5700 and also asked whether his amount of ₹1,000 was brought. Then he passed the money to the hands of the accused, he received the same and placed it on the right hand drawer of the table and closed the drawer. Later, the accused gave him Ext.P3 slip and directed to hand it over to the Superintendent, facilitating payment of ₹5,250. He went out of the room and gave the signal by raising his hands. By the time, the Dy.S.P., Circle Inspector and two gazetted officers reached the room. He confirmed the receipt of the bribe by the accused and told the Dy.S.P. that the money was placed in the drawer and thereafter proceeded to the vigilance office and waited there. At about 4.00 P.M, the vigilance party also reached back the office along with the accused and then he handed over Ext.P3 slip to the Dy.S.P.

16. In cross examination, he asserted that the property was still in the name of Sri.Balagopalan. He was a native of Melattoor. He was a resident under the KSEB Section office, Melattoor. He did not know whether one Rajagopalan was the Asst. Engineer in that office. He denied the suggestion that he was close to the said Rajagopalan, that he was acting at the instructions of Rajagopalan who was on antagonistic terms with the accused, after their transfer and posting. To his information, the meter was installed on the temporary plank by the KSEB officials. According to him, motor was not used from that electric connection, for the house construction. He did not know that there was allegation that an electric motor was used in the premises, misusing energy. He had gone to the electricity office for 10-18 times, all the time the accused had demanded ₹27,000 as fine. He      was a  graduate in Commerce. Earlier he was a medical representative, now doing construction works. According to him, the meter was never defective, but was not in use. He also knew that the meter was replaced. His friend Anilkumar had told him about the disconnection, there was no necessity for the Electricity Board to demand fine. He denied the repeated suggestions that he was acting on behalf of Rajagopalan. At that time, he was not aware that amounts should be paid not only towards fine but also for regularizing the connection. After handing over the money, he had passed signal at about 10.50 AM. Immediately after passing the signal he had confirmed the fact to the Dy.S.P. and also told that the amount was kept in the drawer. He had also showed Ext.P3 slip to the Dy.S.P. He denied the suggestion that for the purpose of the case date in Ext.P3 was corrected. He also denied that after refusing bribe when the accused went out he had placed the money in the drawer that he alone knew that the notes were placed in the drawer.

17. Apart from the evidence of PW1, the prosecution examined PW2, one of the two gazetted officers who witnessed the pre-trap proceedings, and preparation of Ext.P2 entrustment mahazar and recovery of the amount from the possession of the accused as part of post trap proceedings. According to her, at that time, she was the District Stationery Officer, Malappuram. On 16.04.2004 at 9.00 AM, she along with CW2 Santhosh kumar had met the Dy.S.P. at his office. At that time PW1 Radhakrishnan was present in the office. They were mutually introduced. PW1 read his complaint to them and then tendered the MO1 series notes to the Dy.S.P. They noted down the number of the currency, Phenolphthalein test was demonstrated before them, later phenolphthalein powder was applied on the MO1 series and it was placed in the pocket of PW1, insisting that it should be handed over only on further demand. Then Ext.P2 mahazar was prepared and all of them proceeded to the KSEB office, Perinthalmanna. At about 50 meters distance, PW1 and a constable got out of the vehicle and proceeded to the office. On getting signal, all of them went to the office. PW1 was found outside the office. After confirming that the amount was passed, they entered the room of the Engineer, where the accused was found sitting. They were introduced to him. When questioned, the accused denied having accepted the bribe, but PW1 asserted that the amount was accepted from him and was placed in the drawer. Then the accused was found rubbing his hands on his dress. When the hands of witnesses and the Dy.S.P. were dipped in sodium carbonate solution, there was no change in colour and that solution was marked as MO3. Later when the hands of the accused were dipped in separate solution, both his fingers and the solution turned pink and that solution was marked as MO4. Then, after preparing Ext.P4 memo, the accused was arrested. On the directions of the Dy.S.P., when she opened and examined the drawer, MO1 series notes were found inside. When the same were dipped in the sodium carbonate solution, the same also turned pink and that solution was marked as MO5. She also attested Ext.P5 recovery mahazar. Later some documents were seized from the office under Ext.P6 mahazar. Then the quarters of the Engineer was searched and Ext.P7 was the search list marked through him. When the team reached back vigilance office, PW1 was waiting there where he handed over Ext.P3 slip which was seized under Ext.P8 mahazar.

18. In cross examination, she said that she was a resident of Kavunkal, in Malappuram, that she got the proceedings of the District Collector after 8.30 AM and reached the vigilance office in 15 minutes time. She did not know the correctness of the complaint of PW1. She did not witness what had transpired between the accused and PW1 in the KSEB office. When questioned by the Dy.S.P., the accused denied having received bribe. He also told that PW1 had tried to give the money which he did not accept. When PW1 had said that the money was placed in the drawer, the accused said that PW1 might have gone after leaving the money in the table. Hands of the accused was subjected to phenolphthalein test after such denial.

19. PW3 is the Senior Superintendent of electricity sub division office, Perinthalmanna. It was through him the service book, transfer order of the accused and certificate of transfer of charge to the Investigating Officer which were seized under Ext.P11 mahazar were tendered in evidence. According to him, sub division office and the section office were housed in the same building.

20. PW4 is an electrician who attested Ext.P12 observation mahazar at the residence of Balagopalan Nair. PW5 is a Lineman in Perinthalmanna electrical section. According to PW4, on 16.03.2004 he had visited the premises of consumer No.1728 accompanying the accused and the Sub Engineer. They had noticed misuse of power supply for house construction purpose. The meter was faulty and the supply was disconnected. A new meter was installed and Ext.P13 mahazar was prepared by the Engineer. The relevant entries in Ext.P14 anomaly register also was proved through him. According to him, ordinarily, anomalies would be noticed by the meter reader which would be noted in the anomaly register. In Ext.P14(a), such an anomaly was noticed, following which the Asst. Engineer had directed the Sub Engineer to inspect the site. Later the Asst. Engineer himself inspected the premises since the Sub Engineer had not gone to the place. They noticed use of a one HP motor for house construction purpose. In re-examination, he clarified that the actual horse power of the motor could not be ascertained, ordinarily one HP motors would be used for domestic purpose.

21. PW6 is the then spot biller in the KSEB section office, Perinthalmanna. Ext.P14(a) anomaly was recorded by him after noticing use of energy for house construction. Meter was also faulty. Ext.P14(b) bears the hand of the accused. PW7 is the Chief Engineer, Human Resource Management in KSEB who as the competent authority issued Ext.P15 sanction order after perusing the records and convincing the necessity of prosecution. PW8, a neighbour of Balagopalan Nair, deposed that after demolishing the old house, the electricity meter was installed in a shed like structure. Then accused and other officials of the Board had visited the spot and prepared Ext.P13 mahazar which he had attested. That matter was intimated by him to PW1, as instructed by the Board officials.

22. PW9 is the then Asst. Executive Engineer in KSEB Sub Division Perinthalmanna. On 16.04.2004 when the accused was arrested by the vigilance, he was at his office. He knew about the incident after he was informed of the same and called to the office of the accused. He found vigilance party and two gazetted officers standing around the accused. He produced the disconnection register, service connection register, attendance register and the anomaly register to the vigilance. Referring to the provisions of the Indian Electricity Act and Regulation Relating to Conditions of Supply, he testified that on detecting anomaly, fine should be imposed maximum for six months or from the convincing date, fine amount should be three times, for the above period, taking rate at ₹50 per day, in that manner ₹27,000 should be imposed ₹50 X 180 days X 3. Thus Ext.P3 estimation was incorrect. Later, he had inspected the site. After remitting fine amount, the then Asst. Engineer had regularized the connection. According to him, since the meter was faulty, the loss of energy could not be estimated. He made a calculation as directed from above, by superiors, taking the motor having 1 ½ HP capacity. Thus taking consumption of 66 units for one KW load for two months, ₹820 was payable. In that estimation, the amount payable for six months is ₹2,460 and ₹7,380 was payable, thrice the amount of ₹2,460. He explained that for 1 ½ HP motor, consumption for two hours per day is four units. Thus for one month, 120 units might be consumed, cost of which is ₹820. In addition to that amount, a fixed amount towards regularization charge was also payable from the amount, bi- monthly payments made should have been adjusted. The witness re-iterated that he had made such a calculation as directed from above.

23. According to the learned Senior Counsel for the accused, the accused never demanded and accepted any amount as bribe, as contended by the prosecution. The specific case of the accused is that when PW1 reached the office, he was not in the office and he had gone outside to see PW9 and at this juncture, PW1 somehow inserted MO1 series on the drawer of the table used by the accused. When the learned Senior Counsel was asked to justify the positive result of the phenolphthalein test, after both hands of the accused were dipped in sodium carbonate solution, he contended that the accused had contact with the bribe amount when PW1 attempted to entrust the same, though the accused denied the same.

24. Going through the evidence of PW9 in this regard, it could be noticed that PW9, the Assistant Executive Engineer and the immediate superior of the accused, had given evidence regarding the visit of the accused at the time of trap, during cross-examination. In fact, the said evidence alone did not wipe out the prosecution case. That is to say, the recovery of MO1 series from the drawer of the accused and the positive phenolphthalein test on both hands of the accused would show that the accused on demand, accepted MO1 series from PW1 as deposed by him.

25. It is true that as argued by the learned Senior Counsel for accused/appellant, during cross-examination of PW1, he had denied the availability of a motor capable of drawing water in the premises where the disputed electric connection was given as against the evidence of PW5 and Ext.P12, observation mahazer prepared by the Inspector of VACB on 16.06.2004.

26. In this regard, learned Special Public Prosecutor submitted that this has occasioned because of loss of memory, since PW1 was examined after 10 years from date of occurrence and on recording his previous statements. While addressing this contention, it is relevant to note that PW1 met the accused and his contention throughout is that he did not use electric motor for drawing water for construction purpose. Whereas the finding of the KSEB and the accused is that PW1 had used a domestic connection for construction purpose that too for drawing water from well by using an electric motor. Thus, it appears that PW1 deposed his case during cross examination that there was no electric motor therein by sticking on his contention. That apart, as argued by the learned Special Public Prosecutor, PW1 was examined after ten years of the occurrence and therefore, memory loss may be a reason to say so. Therefore, that by itself is not sufficient to declare the stature of PW1 as non- trustworthy witness to disbelieve his evidence in toto, where his evidence in the matter of demand and acceptance of bribe by the accused in the form of MO1 series notes were not at all shaken during his cross examination.

27. Another contention raised by the learned Senior Counsel for accused/appellant is that,there was manipulation in Ext.P3, regarding the date and according to him, “15.04.2004” originally written in Ext.P3 was overwritten and corrected as “16.04.2004” and it was done by PW1 or the prosecution to support the prosecution case that Ext.P3 was issued on the date of trap, viz. 16.04.2004. In support of this contention, Ext.D1, alleged carbon copy of Ext.P3, was confronted to PW10. It is surprising to note that even though the prosecution side opposed marking of Ext.D1 and PW10 either accepted or denied Ext.D1, the learned Special Judge marked the same in evidence. It is the well settled law that mere marking of document in evidence would not prove it contents unless somebody who is capable of speaking its contents thereof would not be examined. Here, PW10 is a total stranger as far as Ext.D1 is concerned, and therefore, this Court is of the view that the authenticity of Ext.D1 and its contents not proved at all and therefore, Ext.D1 is of no significance in the instant case. Despite this legal position, if emphasis given to Ext.D1, the date in Ext.D1 is 15.04.2004 and the accused did not correct the date as 16.04.2004 in Ext.D1, though he had corrected the date in Ext.P3, after receiving the demanded bribe and issued the same as spoken by PW1 is the possibility. For the above reasons, this challenge at the instance of the learned Senior Counsel for accused/appellant is found unsustainable.

28. On re-appreciation of evidence, it is obvious that the prosecution succeeded in proving the demand and acceptance of bribe by accused beyond reasonable doubt and in such view of the matter, the conviction rendered by the learned Special Judge, finding commission of offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of PC Act, 1988 by the accused/appellant does not requires any interference.

29. Coming to the sentence, having regard to the facts of the case and the plea raised by the learned Senior Counsel for the accused for reduction of the sentence, I am inclined to modify the sentence.

30. In the result, this appeal is allowed in part. Conviction imposed by the Special Court for the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of PC Act,1988 is confirmed. The sentence is interfered and modified as under:

                  1. The accused is sentenced to undergo rigorous imprisonment for a period of six months and also to a pay fine of ₹2,000 (Rupees two thousand only), and in default of payment of fine, the accused       shall undergo  rigorous imprisonment for 15 days for the offence punishable under Section 7 of the PC Act, 1988.

                  2. The accused is sentenced to undergo rigorous imprisonment for a period of one year and also to a pay fine of ₹2,000 (Rupees two thousand only), and in default of payment of fine, the accused shall undergo rigorous imprisonment for 15 days for the offence punishable under Section 13(1) (d) r/w 13(2) of the Prevention of Corruption Act 1988.

                  3.       The period of substantive sentences shall run concurrently.

                  4.       The period of detention undergone by him from 16.04.2004 to 20.04.2004 shall be set off under Sec.428 Cr.P.C.

31. The order suspending sentence and granting bail to the accused stand cancelled and the bail bond executed by the accused also stand cancelled. The accused is directed to surrender before the Special Court, forthwith, to undergo the modified sentence, failing which, the Special Court is directed to execute the sentence, without fail.

                  Registry is directed to forward a copy of this judgment to the Special Court, forthwith, without fail, for information and compliance.