1. The sole accused in C.C. No.3/2013 on the files of the Court of the Special Judge (SPE/CBI), Thiruvananthapuram, has filed this appeal, under Section 374(1) of the Code of Criminal Procedure, 1973 [hereinafter referred as ‘Cr.P.C.’ for short], challenging the conviction and sentence imposed by the Special Judge, against him as per the judgment dated 27.01.2017. The Inspector of Police, Central Bureau of Investigation (CBI), represented by the Special Public Prosecutor is arrayed as the sole respondent herein.

2. Heard the learned senior counsel for the appellant and the learned Special Public Prosecutor, in detail. Perused the verdict under challenge and the records of the Special Court.

3. Parties in this appeal shall be referred as ‘accused’ and ‘prosecution’, hereafter.

4. The prosecution case in a nutshell is that, the accused, who was the Social Security Officer in Employees State Insurance Corporation, Kottarakkara Division, Kollam, after having inspected M/s. Nandhil Honda at Punalur in Kollam District, noted down the list of employees serving on the establishment and put his initials in the attendance register to prove that he had visited and verified the records. Thereafter, the accused tore off the portion of attendance registers showing less number of employees to escape the firm from the penalty with intention to manipulate the records, after having accepting bribe from the officers of the firm. Accordingly, the accused demanded Rs.20,000/- from the partners of the firm and accepted Rs.10,000/- out of the same on 24.06.2013 at his office, as part of trap proceedings. Later, Rs.10,000/- alleged to be accepted by the accused was taken from a bag at the office of the accused, where he was arrested. On this premise, the prosecution alleges commission of offences punishable under Sections 7, 13(2) read with 13(1)(d) of the Prevention of Corruption Act, 1988 [hereinafter referred as ‘P.C. Act, 1988’ for short], by the accused.

5. After framing charge, the Special Court recorded evidence and completed trial. During trial, PWs 1 to 13 were examined, Exts.P1 to P26 and MO1 to MO9 were marked on the side of the prosecution. During cross-examination of PWs 1 and 5, Exts.D1 to D6 contradictions were also marked.

6. On appreciation of evidence, the Special Court found that the accused was guilty for the offences punishable under Sections 7, 13(2) read with 13(1)(d) of the P.C. Act, 1988. Accordingly, the accused was convicted for the said offences and sentenced as under:

                  1)       The accused, Sri. Suraj Kumar Keshri, is sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rupees

1 lakh (Rupees One Lakh only) u/s 7 of the Prevention of Corruption Act, 1988. In case of default in payment of fine, the accused shall undergo simple imprisonment for a period of 1 month.

                  (2).     The accused is also sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of Rupees 1 lakh (Rupees One Lakh only) u/s. 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. In case of default in payment of fine, the accused shall undergo simple imprisonment for a period of one month.

                  (3).     The substantive sentences shall run concurrently and the default sentence shall run consecutively.

                  (4).     Set off is allowed u/s 428 for the period from 24/06/2013 to 18/07/2013.

                  (5).     MO4 and MO5 currency notes shall be returned to PW1, after the appeal period is over.

                  (6).     MO1 to MO3 and MO6 to MO9, being valueless, shall be destroyed after the appeal period is over.

7. While assailing the verdict impugned, the learned senior counsel for the accused raised multifold contentions to establish the fact that, the prosecution case is not fully free from doubts. The first point argued by the learned senior counsel for the accused is that, Ext.P5 is the written complaint lodged by PW1 as on 22.06.2013 and acting upon the same, the CBI registered Ext.P21 FIR. It is pointed out that, apart from Ext.P5 no other statement recorded before registering Ext.P21 FIR. But, in Ext.P5 the date of visit of PW1 at the office of the accused was not specifically stated. At the same time, how many time he visited the office of the accused also not stated. But, when PW1 was examined, he had deposed about three demands made by the accused viz. on 14.06.2013, 18.06.2013 and 21.06.2013. Therefore, the same are material omissions to disbelieve the version of PW1. It is pointed out further that, during cross-examination of PW1, Exts.D1 and D2 contradictions were marked as he had contra versions in the previous statement. It is also pointed out that, the evidence of PW1 as regards to the balance amount of Rs.10,000/-, which was not given to the accused, as part of negotiation and later handed over by PW1 to PW11, is not believable. In the previous statement given by PW5, who accompanied PW1, being another partner of M/s.Nandhil Honda, he had given statement before the Police that it was him, who had handed over Rs.10,000/-. But, during the evidence, he had denied this portion of his previous statement and the same got marked as Ext.D6. As regards to the entrustment of Rs.10,000/-, which was retained without being paid to the accused is concerned, there are contra versions available to doubt the prosecution case. Most importantly, it is argued by the learned senior counsel for the accused that, when trap was arranged demanding a specified sum, on production of the same before the trap laying officer, when it was entrusted with direction to give the same to the accused on demand, the scope of negotiation to reduce the amount is an outright impossibility. Here, as spoken by PW1 as well as PW5, supported by PW3, the decoy witness and PW11, the trap laying officer, though as per Ext.P6 entrustment mahazar, Rs.20,000/- was entrusted to the Dy.S.P. and given back to PW1 to give it to the accused, only Rs.10,000/- was given to the accused. According to PWs 1 and 5, it was reduced as part of negotiation. This aspect seriously doubts the prosecution case. It is also submitted that, PWs 1 and 5 given evidence that, on receipt of bribe money to the tune of Rs.10,000/-, the accused put the same in a pen holder. But, in Ext.P7 recovery mahazar, no mention could be found as regards to what happened to the said pen holder. It is pointed out that, the recovery was from a white colour plastic bag available in the office room of the accused and according to the learned senior counsel for the accused, the place where MO6 plastic bag was found and the seat of the accused is having a distance of less than 10 feet, though PW11 given evidence that he did not exactly remember this aspect. Apart from that, even though PW1 deposed before the Court that he had made complaint to PW4, the Director of VACB, during examination of PW4, nothing extracted to justify the meeting of PW1 with him, in any manner. Therefore, the verdict of the Special Court requires interference.

8. Per contra, the learned Special Public Prosecutor appearing for the CBI, repelled the contentions raised by the learned counsel for the accused one by one. According to him, inasmuch as the entry regarding the visit of PW1 found in Ext.P21 FIR recorded by the Investigating Officer is concerned, the same could not be found in Ext.P5 statement recorded as that of PW1. But, the learned Public Prosecutor vehemently argued that, before registering the FIR, the Investigating Officer conducted a pre-verification regarding the allegations and Ext.P20 is the report thereof. In Ext.P20, it has been specifically stated that the accused visited M/s.Nandhil Honda on 21.06.2013 and this is the reason why 21.06.2013 is shown in the FIR. Therefore, there is no anomaly in this regard.

9. Regarding the non recovery of the pen holder or the absence of its description in the post trap mahazar, the learned Special Public Prosecutor argued that, the consistent evidence of PW5 in this regard is that, after accepting the money entrusted by PW1, PW5 along with Nandhakumar (PW1) went outside the office to call the CBI officials. It is submitted by the learned Public Prosecutor further that, even though PW1’s evidence is silent to this aspect, PW1 did not contradict the version of PW5 in the matter that both of them went outside after acceptance of the bribe money by the accused. Therefore, taking advantage of the absence of PW1 and PW5, the accused himself taken the money from the pen holder and placed the same in a plastic bag, which was recovered from his office as per the disclosure statement recorded in terms of Section 27 of the Indian Evidence Act. In this process, the accused might have hided the pen holder and as such no reference thereof could be found in the post trap mahazar. Therefore, the absence of the details of the pen holder in the post trap mahazar has least consequence in the instant case. It is pointed out further that, the specific case of the prosecution is that, on demand of bribe by the accused, the money was handed over by PW1. During examination of PW1 and PW5 before the Court, their evidence is in the same line. The learned Special Public Prosecutor submitted that, it is true that Ext.D5 contradiction has been brought during cross- examination of PW5, which would suggest that the money was entrusted by PW5 to the accused. However, this contradiction is of no serious consequence, since the evidence of PW1, supported by the evidence of the decoy witness as well as the Investigating Officer, would show that the money was entrusted to PW1 with advice to give the same to the accused on demand and accordingly, PW1 handed over the bribe money to the accused, when it was demanded from him by the accused. Therefore, there is no anomaly in this regard also.

10. Regarding the contention raised by the learned senior counsel for the accused that, even though PW1 given evidence that he had informed all the incidents to PW4, his superior officer, in writing, while examining PW4 as a witness, he did not depose about the same, according to the learned Special Public Prosecutor, this is quite natural. His submission is that, PW4 was cited and examined to prove that accused was an officer working under him as an ESI Inspector and the prosecution did not produce PW4 for the purpose of proving that PW1 had approached him and stated him about the incidents. Therefore, naturally PW4 could not be examined to prove anything more than the purpose for which he was summoned. It is also pointed out by the learned Special Public Prosecutor that, during cross- examination of PW5 also nothing suggested in this regard by the learned counsel for the accused. Therefore, this aspect has no relevance in the instant case.

11. In view of the rival submissions, the points arise for consideration are:

                  1.       Whether the Special Court is justified in finding that the accused committed the offence punishable under Section 7 of the P.C. Act, 1988?

                  2.       Whether the Special Court is wrongly found that the accused committed the offence punishable under Section 13(2) read with 13(1)(d) of the P.C. Act, 1988?

                  3.       Whether the verdict of the Special Court would require interference?

                  4.       Order to be passed?

12. Point Nos.1 and 2:- In order to address these questions, it is necessary to evaluate the evidence, in this case.  PW1,  who  had  been  working  as  the  partner  of M/s.Nandhil Honda, approached the CBI with Ext.P5 complaint. He deposed that he had been doing business in two wheelers and the firm was having a Showroom and Service Centre in Punalur. The other partner in the firm was Sri.Dhilipkumar. He testified that on 14.06.2013 the accused came to the Service Centre, introducing himself as the ESI Inspector and enquired whether the employees are covered under ESI. The accused asked him to show the attendance registers and he told them that the attendance registers were in the Showroom. He deposed that thereafter he along with the accused and his partner went to the Showroom and showed the accused Exts.P1 to P4 attendance registers of the Showroom and Service Centre. Then, the accused told them that though they were having a large number of employees, ESI coverage had not been provided and on this count they would have to pay a huge amount as penalty. The accused also told him that he could help in avoiding the penalty, if a percentage of amount was paid as bribe. He deposed that when he agreed to meet the accused at his office, the accused tore off the top portion of the attendance register  in  which  he  had  signed  earlier.  He stated  that Ext.P2(a) is the said torn portion of the attendance register. He further stated that on the next day, he met the Regional Director, Krishnakumar and the entire events were discussed with him and his subordinates. In the discussion, Mr. Krishnakumar told him that such a huge fine could not be imposed since the showroom was opened just six months before. He stated that on 18.06.2013, he along with his partner met the accused and at that time, the accused asked Rs.20,000/- to settle the matter. Again on 21.06.2013, they met the accused and informed him that they could not pay bribe of Rs.20,000/-. Thereafter, he lodged Ext.P5 complaint before the CBI. He stated that on the next day, a person from CBI called and asked him about the complaint and on the next day, another officer by name Shamsudeen asked him to come to Kottarakara PWD Rest House with Rs.20,000/-, by 7.00 a.m. on 24.06.2013. PW1 testified that he reached the Rest House by 7.45 AM and when he entered the room, saw the CBI officers and two bank officials from SBT. One of the Officers informed that they had gathered there for a trap and Mr. Shamsudeen was appointed as TLO. Thereafter, Shamsudeen read over the complaint which he had given and asked him to handover the money he had brought. Then, sodium carbonate solution was prepared in a bottle and the hands of the bank employees were dipped into it and the same did not show any colour change. He stated that Shamsudeen then counted the money, told him the serial numbers and handed over the money to the bank officials and took it back. Thereafter, their hands were dipped into the solution which again found to be colourless. Then, another CBI officer smeared phenolphthalein on the notes and the notes were again handed over to the bank officials and taken back. Thereafter, when their hands were dipped into the solution, there was pink colour change. He identified MO1 as the said solution after demonstration. Thereafter, all his belongings except mobile, pen and specs were collected by the CBI Officer and the Rs.20,000/- applied with phenolphthalein was put into his left pocket with instructions not to touch it, till it would be handed over to the accused. He stated that, he along with his partner and Shri. John and the bank staff went to the ESI Office in his car and saw the accused entering into his office in the 1st Floor. Then, he and his partner went inside the cabin of the accused and Shri. John stayed outside. He deposed that they talked with the accused for 5 to 10 minutes and negotiated with him and after that the accused demanded Rs.10,000/- from them. He stated that at that time, he took Rs.10,000/- from his pocket and handed it over to the accused, who accepted it with both his hands and put the same in a pen holder. He further stated that as directed by the CBI officer, a call was made to the CBI Officer after the incident and all the CBI Officials rushed into the cabin of the accused and showed the ID card. They told the accused that he was under arrest and asked him to dip his hands into the solution they had and when he dipped his hands, the solution showed pink colour change. He deposed that when he informed the CBI Officials that he had handed over the money to the accused, they asked the accused where he had kept the money and the accused showed the officials where he had kept the money. He also deposed that the money was kept in a white colour plastic bag kept on the floor, on the right side of the accused and the CBI Officials took the money and marked the plastic bag. Thereafter, the balance Rs.10,000/- was taken from him and the serial numbers of the notes were verified and were found tallying. He testified about the preparation of Ext.P6, the entrustment/pre trap mahazar and Ext.P7 the recovery/post trap mahazar and that he had signed in both mahazars. He also identified MO2 as the solution where the right hand of the accused was dipped and MO3 as the solution where the left hand of the accused was dipped. He identified MO4 as the trap currency notes, MO5 as the balance currency notes, MO6 as the plastic sack in which the currency was kept and MO7 as the cotton swab used to wipe the portion of MO6 where the money was kept.

13. In his cross-examination, PW1 stated that the accused had prepared some papers when he visited his office and he did not know what were those papers. He came to know about the liability under ESI and the penalty to be paid, when the accused told him so. He deposed that on 14.06.2013, the accused did not demand any bribe but had only asked to meet him at his office in order to avoid problems. He stated that, when he met Krishnakumar, he did not tell him about the accused tearing the attendance register. He also stated that he had met Krishnakumar after meeting the accused twice and did not remember the date. The second meeting with the accused was on 18.06.2013 and the third meeting was on 21.06.2013 and it is thereafter, on 21.06.2013 itself, he had met Krishnakumar. He would say that on 14.06.2013 the accused did not specify any date on which they have to meet him. He would also say that the accused had asked him about the salary details which were available in his computer and he did not ask the accused to produce the documents. Even though he was ready to handover the documents to the accused on that day itself, the accused was not ready to collect it. He further testified that on 18.06.2013, he along with his partner took the attendance registers and met the accused and before that, the salary details were mailed to the accused. He denied the suggestion that on 24.06.2013, he had tried to thrust MO4 upon the accused and when the accused refused, he had put it in MO6 and signaled the CBI. In his re-examination, he stated that on 18.06.2013, the accused had asked him to resend the salary details by E-mail and he had contacted office staff and directed him to do so.

14. Apart from the evidence of PW1, PW5, the other partner, who accompanied PW1, also supported the evidence of PW1.

15. PW2, who worked as the Branch Manager, Nilamel Branch, SBT, during 2013, was one among the decoy witnesses. He deposed that he was asked by his superiors to attend a secret operation conducted by CBI on 24.06.2013 and when he went to PWD Rest House at 7.30 am on that day, the CBI Officer Mr. Shamsudeen, the TLO, introduced others present there and informed him that they had assembled there to conduct a trap operation on an allegation against the accused. Then, Mr.Shamsudeen read over the complaint and he talked to the complainant and enquired about its correctness. He stated that thereafter, Shamsudeen collected all his personal belongings except, mobile phone and identity card in an envelope and took the money brought by the complainant and handed it over to him for counting. On counting, he found that there were twenty 1000 rupee notes. Thereafter, sodium carbonate solution was prepared in a bottle and his fingers were immersed into the solution, but there was no colour change. He testified that phenolphthalein powder was thereafter smeared in the currency notes and he again counted the notes and dipped his fingers into a newly prepared Sodium carbonate solution, then the solution showed pink colour change. He had identified MO1 as the solution so used and the label thereof contained his signature. He deposed that thereafter, Shamsudeen placed the currency notes in the left pocket of Nandakumar and asked him not to touch it until the accused demanded it and also instructed John to accompany Nandakumar and Dhilip kumar to remain somewhere outside the office, so that he could view the proceedings without suspicion. Shamsudeen also asked Dhilip kumar to give a call as soon as the accused demanded and accepted the bribe. He also deposed that on reaching the office premises he waited outside, while Nandakumar, Dhilip kumar and John went inside. He also witnessed the accused coming in a bike and going inside the office. He would say that on receiving a call from Dhilip Kumar, all of them rushed inside the cabin of accused and Shamsudeen showed his ID card to the accused. He would also say that when Shamsudeen asked the accused whether he had demanded and accepted bribe, the accused became upset and requested to rescue him since he was a beginner in service and started crying. He stated that after preparing a bottle of Sodium carbonate solution, both the right hand fingers and left hand fingers of the accused were dipped in it and the solution showed pink colour change. He also stated that the solutions were bottled, sealed and packed and he had signed in its labels. He identified MO2 as the solution where the right hand of the accused was dipped and MO3 as the solution where the left hand of the accused was dipped. He deposed that when Shamsudeen asked the accused about the currency he took from Nandakumar, the accused volunteered and showed where he had kept it. The currency was kept in MO6 sack which contained ESI cards. He also deposed that the portion of plastic bag where the currency was kept was wiped using MO7 cotton swab and it was dipped into another Sodium carbonate solution, which turned pink. He identified MO8 as the said solution and identified his signature in the label thereof. He deposed further that the entire proceedings were recorded in a recovery mahazar and the serial numbers of the currency notes were compared with the entries in the entrustment mahazar. He also signed in both Exts.P6 and P7 mahazars.  He  further  testified  that  after  collecting  the remaining currency notes from Nandakumar, the same were also verified with the serial numbers noted in entrustment mahazar. Thereafter, Shamsudeen arrested the accused. He identified Ext.P8 as the search list of the office, Ext.P9 as the search list of the residence of the accused, Ext.P10 as the arrest cum personal search memo, Ext.P11 as the rough sketch of the premises of ESI, Ext.P12 as the disclosure statement made by the accused to the TLO and that he had signed in all these documents. He identified MO4 as the trap money. He also identified MO5 as the remaining currency notes obtained from Nandakumar and Exts.P8(a) to P8(d) as the documents seized from the office of the accused.

16. While PW2 was cross-examined, he had deposed that Nandakumar did not tell him about the visit of the accused to his showroom on 14.06.2013, his visit to the office of the accused on 18.06.2013 and his visit to the Regional Director's office.

17. PW3, who was the Deputy Manager of SBT, Pulamon Branch, Kottarakara, during 2013, also supported the pre trap as well as post trap proceedings in tune with the evidence of PW1, PW2 and PW5.

18. PW11 had worked as the Inspector in CBI Cochin Unit during 2013. He deposed that on 23.06.2013 a complaint from G.C. Nandakumar was received alleging demand of bribe by the accused and as per the directions of the SP, verification was conducted and on its basis, FIR was registered as RC 13(A)/2013. He stated that on instructions of the SP, he was appointed as TLO and a trap team was constituted and witnesses were arranged with a direction to come to the PWD Rest House, Kottarakara on 24.06.2013 morning. He also instructed the complainant Nandakumar to come to the Rest House on that day with the money. He stated that on 24.06.2013, all of them assembled in room No.201 of the rest house and after introducing everybody, the copy of the complaint was read over to them. He also stated that after informing the purpose for assembling, he collected Rs.20,000/- brought by Nandakumar, which is twenty 1000 rupee notes and noted its serial numbers and denomination in a mahazar and they were verified by the witnesses. He testified that thereafter he explained the importance of sodium carbonate phenolphthalein test and showed demonstration by using sodium carbonate solution in a bottle. When the right hand fingers of Vijayakumar were dipped and the solution did not show colour change. Thereafter, Jubelt smeared phenolphthalein powder in the currency notes and gave it to Vijayakumar who counted it using both his hands. Then in a fresh sodium carbonate solution, the right hand of Vijayakumar was dipped and the solution turned pink. The solution was sealed in a bottle and a label was affixed in which the words 'A' and 'demo wash’ were recorded and he along with the witnesses signed in it. He would say that thereafter, he collected all the belongings of the persons assembled there, except pens, specs, ID card and mobile and kept with him only Rs.1,500/- for expenses. Then the currency notes were put in Nandakumar's left shirt’s pocket with instructions not to touch it until the accused would demand for the same. He also deposed that he instructed John to watch the transactions between the accused, Dhilipkumar and the complainant without creating any doubt and instructed Dhilipkumar to call him in his mobile once the accused accepts the money. He stated that by 9.20 AM, the entrustment mahazar was completed and he along with the witnesses and the members of the trap team signed in it and by 9.45, they reached the ESI Office. After reaching the ESI Office, Nandakumar and Dhilipkumar went inside, followed by John and he waited outside. At 9.57, Dhilipkumar called and informed him that the accused demanded money again and after bargaining, he had paid Rs.10,000/-. Thereafter, he along with his team members proceeded to the office and met John, Nandakumar and Dhilipkumar in the door and they together went inside the office of the accused where he was sitting. He deposed that after disclosing his identity, he asked the identity of the accused and asked him whether he had demanded and accepted money from Nandakumar. At that time, the accused stated to spare him since he was a beginner in service. He also deposed that after preparing a sodium carbonate solution, the right hand fingers of the accused were dipped into it and the solution turned pink. The solution was poured into a bottle, sealed and labeled and the letters 'B' and 'right hand wash' were written and thereafter he along with the witnesses signed in it. He further deposed that another solution was prepared and the left hand fingers of the accused were dipped into it and the solution turned pink. The solution was also bottled, sealed and labeled and in the label, the words 'C' and 'left hand wash' were written and he along with the witnesses signed in it. He stated that he also initialed in the cloth used for sealing the bottles. Then, he informed the accused that he is under arrest and prepared an arrest cum personal search memo. He also stated that when he enquired with the accused regarding the money he had accepted from Nandakumar, the accused voluntarily gave a statement to the effect that the money was kept in a plastic sack and if permitted he would show it. He stated that he had recorded the statement which was marked as Ext.P12 and that he along with the witnesses had signed in it. Thereafter, the accused led them to the plastic sack kept on the right side of his chair and from one among them the accused showed and took some 1000 rupee notes and handed it over to him. He stated that the serial numbers of those notes were verified with the entrustment mahazar all of them present there got convinced that those notes were tallying with the notes described in the pre-trap mahazar. Thereafter, using a cotton swab, Constable Chandrakumar wiped the plastic sack, where the money was kept and dipped the cotton into another solution and the solution turned pink. The solution was also taken in a bottle, sealed and labeled and the words 'D' and 'swab wash' were written in it and he along with the witnesses signed in it. The cotton swab was deposited in a green cover and marked as 'E' and he along with the witnesses signed in it. He would say that the portion where the money was kept was marked using green ink and the sack was packed and sealed and the words 'F' and 'white plastic sack' were written and he along with the witnesses signed in it. He further stated that he collected the balance money from Nandakumar and verified the same with the entrustment mahazar and found it tallying. The entire proceedings were recorded in the recovery mahazar and he along with the witnesses and the trap members signed in it. He also stated that after intimating the court, the office room of the accused was searched and a bunch of documents containing 15 sheets were taken into custody, after preparing a search list. He further stated that Inspector D'Cruz also searched the temporary place of residence of the accused and a document was seized from there. He identified Ext.P5 as the complaint given by Nandakumar, Ext.P20 as the verification report, Ext.P21 as the FIR, Ext.P6 as the entrustment mahazar, Ext.P7 as the recovery mahazar, Ext.P11 as the rough sketch of scene of occurrence, Ext.P10 as the arrest cum personal search memo, Ext.P8 as the search list of the office, Ext.P9 as the search list of the residence of the accused, Ext.P22 as the receipt issued on seizing documents from Nandakumar, Ext.P23 as the report filed in the court adding Sections and Exts.P8(a) to P8(d) as the documents seized from the office of the accused. He also identified MO1 as the demo solution, MO2 as the right hand wash solution of accused, MO3 as the left hand wash solution of the accused, MO8 as the cotton swab wash solution, MO6 as the plastic sack where the money was kept, MO7 as the cotton swab, MO4 as the trap money, MO5 as the balance currency notes and MO9 series as the cloths used for sealing the bottles and that he had signed in the labels of the bottles.

19. In fact, even on searching cross-examination of PW11, nothing material extracted to disbelieve the evidence of PW11, who spoke about the pre as well as post trap events. During cross-examination of PW11, he denied the suggestion that the accused took the money from the sack on his instructions and had handed it over to him.

20. In this case, it is discernible from Ext.P5 that, apart from Rs.20,000/- paid to the accused as bribe to avoid payment of penalty for not maintaining the records towards the ESI contribution of the employees/workers in the establishment of PW1, no specific dates stated as regards to demand. But, in Ext.P21 FIR, the date of demand of bribe is shown as 21.06.2013, as pointed out by the learned senior counsel for the accused. During examination of PW1, he deposed about demand of bribe on three days viz. 14.06.2013, 18.06.2013 and 21.06.2013. According to the learned senior counsel for the accused, non mentioning of these three dates in Ext.P5 is very fatal and the same is a material omission to disbelieve the version of PW1. Apart from that, during examination of PW1, two contradictions were marked. On perusal of Ext.D1 contradiction marked, it would appear that the same is only a portion of the previous statement, without reading the remaining portion in full. That apart, no attempt made by the learned counsel for the accused to prove this contradiction through the recorder of the statement, when he was examined. As regards to Ext.D2 contradiction is concerned, when the contradiction portion marked in the previous statement of PW1 was asked, the witness answered that he did not remember. Then also, without any attempt to make him to recollect or to remember the same with a view to facilitate either denial or acceptance of the said statement, straight away the contradiction got marked by the learned Special Judge. The said procedure is patently illegal. In fact, Ext.D2 is not a contradiction in the eye of law, as no attempt was made to recollect or remember PW1 that such a statement was given by him with a view to get the same either admitted or denied by him. It is interesting to note that a learned senior counsel of this Court conducted trial before the Special Court, as could be seen from the name shown in the judgment of the Special Court not attempted to prove Ext.D2 contradiction by suggesting the same to the maker, since he was well aware of the fact that Ext.D2 is not a contradiction to be proved through the Investigating Officer and thus, the learned counsel cleverly avoided to point out Ext.D2 contradiction to the recorder of the statement and the risk of disproving the contradiction. Similar is the position as far as Ext.D1 contradiction is concerned, since the same is only a part of a long sentence, no attempt made by the learned counsel for the accused to get the same proved through the recorder of the statement, as already pointed out. Therefore, Exts.D1 and D2 are not at all contradictions in the eye of law.

21. Regarding Ext.D6 contradiction, even though PW5 denied having given such statement and given consistent statement in negation to Ext.D6, the same is a contradiction in the eye of law. Now, the question is how far this contradiction alone would be sufficient to disbelieve the prosecution case? In this connection, it is relevant to note that as deposed by the Trap Laying Officer and as deposed by PW1 and PW5 before the Court, the trap money was entrusted to PW1 by the Dy.S.P. and inturn he had given the money to the accused on demand and the same was recovered from the white colour plastic bag found in the office room of the accused. In such a case, the contradiction in the form of Ext.D6 stating that PW5 handed over Rs.10,000/- during the time of trap could only be a mistake and the same is of no serious consequence to disbelieve the evidence of PW1, PW5 and PW11.

22. During cross-examination of PW2, who recorded the statement of PW1, deposed that PW1 did not give any statement on 14.06.2013 demanding 10% of the penalty and also PW1 did not give any statement on 14.06.2013 as to the effect that he had met PW4 S.V.Krishna Kumar on 14.06.2011. PW12 had given evidence during cross- examination that, PW1 given Ext.D2 statement before him. Further, during cross-examination of PW12, who recorded the statement of PW5 also, he stated that PW5 given Ext.D5 as well as Ext.D6 portion of the statement and those contradictions were proved. But, nothing could be seen from the evidence of PW11, regarding Exts.D1, D3 and D4 contradictions, the same were not suggested to the Investigating Officer and proved same in the manner known to law. It is true that, as per the evidence of PWs 1 and 2, the bribe amount was reduced to Rs.10,000/- on negotiation and the same was placed in a pen holder by the accused after receiving the same. Thereafter, both of them did not witness what happened to the money. The case of the prosecution is that, when the Dy.S.P. reached the office and asked about the money, the accused had given a disclosure statement that he had placed the bribe money in MO6 bag and accordingly, the same was recovered there from. Thus, the prosecution proved the recovery of the bribe money under Section 27 of the Evidence Act.

23. Coming to the contention raised by the learned senior counsel for the accused that, even though nothing stated in Ext.P5 written complaint as to the date of demand and in Ext.P21 FIR, 21.06.2013 is stated as the date of demand of bribe by the accused, the reply given by the learned Special Public Prosecutor is found to be impressive. That is to say, as pointed out by the learned Special Public Prosecutor, since the FIR was registered after preparing Ext.P20 pre-verification report by the Trap Laying Officer and in Ext.P20 report, it was stated that the accused visited M/s.Nandhil Honda on 21.06.2013 and demand was made for bribe. This is the reason why in Ext.P21 FIR the date of occurrence or demand of bribe by the accused is shown as 21.06.2013. Therefore, the contention at the instance of the learned senior counsel for the accused would necessarily fail.

24. While  addressing  the  contention  raised  by  the learned senior counsel for the accused that, as regards to lodging of complaint by PW1 to PW4, nothing stated by PW4 in his deposition is concerned, the argument advanced by the learned Special Public Prosecutor is that PW4 was examined in order to prove that the accused was a subordinate officer working under him and this fact is proved. Therefore, the argument advanced by the learned Special Public Prosecutor is convincing, where the learned counsel for the accused also asked nothing to PW4 during his cross-examination, in this regard. Thus, this point is found to be unmerited.

25. Another relevant contention raised by the learned senior counsel for the accused is that, as deposed by PW1 and PW5, after negotiation of the amount initially demanded as Rs.20,000/-, after reducing the same to Rs.10,000/- the accused demanded and accepted the said sum. Later, he placed the same in a pen holder. But, no pen holder found a place in Ext.P7 recovery mahazar and the notes were recovered from a white colour plastic bag available in the office room of the accused. In this regard, the contention raised by the learned Special Public Prosecutor is that, as deposed by PW5, PW1 and PW5 went outside of the office room of the accused to call the Vigilance officials after acceptance of the bribe money by the accused and in the absence of PW1 and PW5 in the office, after receipt of the bribe money, the accused hided the money in a white colour plastic bag in the same room and the same was recovered when the accused had disclosed its authorship of concealment and he led to the recovery. Therefore, the pen holder might have been taken away by the accused himself from the visibility of the trap team to secure himself from the officers. Thus, the same was not available to be referred in Ext.P7 recovery mahazar. On perusal of the evidence given by PW5, his evidence is as argued by the learned Special Public Prosecutor. It is true that in the evidence of PW1, PW1 did not say specifically that he went outside the office soon after receipt of bribe money by the accused, though PW1 also did not say that he continued his presence in the office room after the receipt of the bribe money by the accused.

26. According to the learned senior counsel for the accused, PW3 also did not depose regarding the aspect that PW1 and PW5 went outside the office of the accused, to inform receipt of bribe by the accused to the trap team. Therefore, PW1 was there at the office after receipt of bribe by the accused and in such circumstance, the disappearance of the pen holder is of significance. On perusal of the evidence of PW3, PW3 had not deposed that PW1 went outside the office of the accused, nor he had deposed that PW1 remained in the office. Thus, the evidence of PW5 in this regard is liable to be accepted to hold that, soon after receipt of bribe by the accused, PW1 and PW5 came out and taking advantage of the absence of PW1 and PW5, the accused might have removed the pen holder and placed the money in the white colour plastic bag. In this connection, it is relevant to note further that, in this case, the prosecution has a case that the bribe money was taken into custody under Section 27 of the Evidence Act, acting on the disclosure statement given by the accused as regards to authorship of concealment and this could be possible only when PW1 and PW5 should came out, leaving the accused alone in his office to zeal authorship of concealment, without knowledge of PW1 and PW5.

27. Coming to the contention raised by the learned senior counsel for the accused that, negotiation before giving the trap money is unknown in trap proceedings and the same also shadows doubt in the prosecution case, the learned Public Prosecutor submitted that, even though the Investigating Officer directed PW1 to meet the accused and give Rs.20,000/- entrusted to him, PW1 and PW5, being familiar to the accused made negotiation and reduced the bribe money to be given and the same alone is not a reason to disbelieve the prosecution evidence tendered.

28. It is not in dispute that normally in trap cases, when the money demanded would be entrusted to the complainant to be given to the accused on demand, negotiation of the bribe money could not be found. Here, the amount of bribe money demanded was Rs.20,000/- and PW1 brought Rs.20,000/- and met the accused along with the same. However, PW1 and PW5 negotiated and reduced the amount to Rs.10,000/-. Accordingly, Rs.10,000/- was given to the accused and the same was recovered from the white colour plastic bag found in the office room of the accused and the balance amount of Rs.10,000/- also was collected by the trap team. Therefore, even though negotiation could not be found in trap proceedings normally, that does not mean that negotiation if done before trap to reduce the bribe amount, the same will take away the sanctity of the trap or the evidence tendered by the prosecution to be a futile exercise. Therefore, the process of negotiation is not a ground to find fault with the prosecution case or to find that the same would shadow serious doubt in the prosecution case. Therefore, this contention argued by the learned senior counsel for the accused is found to be not acceptable.

29. Unlike in other cases, here, PW6, the Senior Scientific Officer Grade-I, Chemistry attached to Central Forensic Science Laboratory, Delhi, also was examined to prove presence of phenolphthalein in MO1, MO2, MO3 and MO8 bottles, based on Ext.P19 report issued by PW6. PW6 deposed that in MO6, the plastic bag received by him for examination, the pink colour solution was faded away due to paucity of time.

30. 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.

31. In this connection, it is relevant to refer a 5 Bench decision of the Apex Court in [AIR 2023 SC 330], Neeraj Dutta v. State, where the Apex Court considered when the demand and acceptance under Section 7 of the P.C.Act 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 PC Act, 1988 and in paragraph No.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.”

32. Thus, the legal position as regards to the essentials under Sections 7 and 13(1)(d)(i) and (ii) of the PC Act, 1988, is extracted above. Regarding the mode of proof of demand of bribe, if there is an offer to pay bribe 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.

33. In this context, it is relevant to refer the decision of this Court in Sunil Kumar K. v. State of Kerala reported in [2025 KHC OnLine 983], in Crl.Appeal No.323/2020, dated 12.9.2025, wherein in paragraph No. 12, it was held 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.”

34. On re-appreciation of evidence, the demand of bribe by the accused from PW1 before the date of trap and demand and acceptance of bribe money by the accused from PW1 on the date of trap have been proved by the prosecution, without any reasonable doubts. Therefore, the finding of the learned Special Judge that the accused committed the offences punishable under Sections 7, 13(2) read with 13(1)(d) of the P.C. Act, 1988, is only to be justified. In consequence thereof, the conviction entered into by the learned Special Judge is liable to sustain.

35. In this case, it could be noticed that the learned Special Judge committed an error while imposing sentence. That is to say, while imposing rigorous imprisonment for the offences punishable under Sections 7, 13(2) read with 13(1) (d) of the P.C. Act, 1988, the learned Special Judge imposed simple imprisonment as the default sentence for non payment of fine. The same is not permitted, since the substantive sentence as well as the default sentence imposed upon an accused should be uniform. Taking into account this aspect and considering the request sought for by the learned senior counsel for the accused, I am of the view that some leniency in the matter of sentence can be considered.

36. Point Nos.3 and 4:- In the result, this appeal stands allowed in part. The conviction imposed by the learned Special Judge is confirmed. In the interest of justice, I am inclined to modify the sentence. The sentence imposed against the accused for the offences punishable under Sections 7 and 13(2) read with 13(1)(d) of the P.C. Act, 1988, is modified as under:

                  i.        The accused is sentenced to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.50,000/- and in default to undergo rigorous imprisonment for two months, for the offence under Section 7 of the P.C. Act, 1988.

                  ii.       The accused is also sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.50,000/- and in default to undergo rigorous imprisonment for two months, for the offence under Section 13(2) read with Section 13(1)(d) of the P.C. Act, 1988.

                  iii.       The  substantive  sentence  shall  run concurrently and the default sentence shall run separately, after the substantive sentence.

                  iv.      The period of detention undergone by the accused in this case will be set off against the substantive sentence of imprisonment.

37. The order suspending sentence and granting bail to the accused stands vacated, with direction to the accused to appear 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, for information and compliance.