1. The sole accused in C.C.No.45 of 2008 on the files of the Enquiry Commissioner and Special Judge, Kozhikode, has filed this appeal challenging the judgment dated 05.03.2014 rendered in the above case. The respondent herein is the State of Kerala represented by VACB.

2. Heard the learned counsel for the appellant/accused as well as the learned Public Prosecutor. Perused the verdict under challenge and the records of the Special Court.

3. The prosecution case is that the accused while working as Secretary to Mattool Grama Panchayat and as being a public servant had abused his official position and committed criminal misconduct by demanding and accepting Rs.500/- as bribe from PW1 Muhammedali at 8 p.m on 14.05.2007 to grant permission to construct the house of one Zeenath, who is the niece of PW1. On this premise, the prosecution alleges commission of offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (`PC Act, 1988’ for short), by the accused/appellant.

4. On receipt of final report filed after investigation, the Special Court secured the presence of the accused for trial and proceeded with trial. During trial, PW1 to PW6 were examined and Exts.P1 to P20 as well as M.O1 to M.O8 were marked on the side of the prosecution. On the side of the defense, DW1 was examined and Exts.D1 to D2(a) were marked.

5. The Special Court appreciated the evidence and found that the prosecution proved commission of offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988, by the appellant/accused and accordingly he was convicted and sentenced as under:

                  “accused is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/- (Rupees ten thousand only) and in default of payment of fine to undergo rigorous imprisonment for a period of one month for the offence punishable under Section 7 of the PC Act, 1988. Accused is sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.10,000/- and in default of payment of fine to undergo rigorous imprisonment for a period of one month for the offence punishable under Section S.13(1)(d) r/w 13(2) of P.C. Act, 1988, he The substantial portion of the sentence shall run concurrently. Accused is entitled to get set off under Section 428 of Crl.P.C regarding the period of detention undergone by him. MO-1 currency note shall be returned to PW-1, MO-3 currency note shall be confiscated and MO-2 and MO-4 to MO-8 shall be destroyed as valueless, after the expiry of period of appeal. Bail bond executed by the accused shall stand cancelled.”

6. While assailing the verdict of the Special Court, the specific contention raised by the learned counsel for the accused is that, in this case, the prosecution allegation is that the accused demanded and accepted bribe on 14.05.2007 for granting permission to construct the house of Zeenath, the niece of PW1, acting on the revised application and plan submitted by Zeenath. On perusal of Ext.P11 file, the same would show that the application alleged to have been submitted for the purpose of granting revised sanction and the revised plan thereof were not available even though Ext.P11 file would indicate that, earlier, sanction was issued for constructing the building based on the plan appended to the application then filed. Thereafter, one T.P.Musthafa had filed a Suit, O.S.NO.41/2006, against Zeenath before the Munsiff Court, Kannur, and obtained an order of injunction restraining the construction that would protrude into the pathway, that too, without leaving the required set back for the way as mandated under the Building Rules. According to the learned counsel for the accused, absence of revised application and revised plan would shatter the very foundation of the prosecution case. It is also pointed out that non conduct of pre-trap verification had prejudiced the accused. Yet another point argued by the learned counsel for the accused is that, in the absence of the accused, the vigilance party entered his room and the bribe money was placed by PW1 in his office chamber; and that is the reason why, when the phenolphthalein test was conducted on the hands of the accused, no colour change could be found. Therefore, the inference to be drawn is that PW1, who is in inimical terms with the accused, had placed the money in the absence of the accused, in the drawer of his table and the accused was thereafter trapped. Thus the prosecution case is not fully free from doubt and the accused is entitled to get the benefit of doubt.

7. Opposing this contention, the learned Public Prosecutor would submit that even though Ext.P11 file did not contain the revised plan or the fresh application for granting permission to make constructions on the basis of the revised plan in view of the civil suit, the evidence otherwise would indicate that the entire genesis of the case is on the plank of the submission of the revised plan to get the same approved in accordance with the contention raised by Musthafa in the Civil Suit to avoid construction that would protrude into the pathway and without leaving the required set back as per the Building Rules. It is also pointed out that on evaluating the evidence of PW1 supported by PW5 Investigating Officer and PW2, the decoy witness, demand and acceptance of bribe by the accused was proved without an iota of doubt and in such a case there is no doubt to find fault with the prosecution case. Therefore, conviction and sentence to be upheld.

8. The points arise for consideration are:

                  (i) Can it be said that the Special Court rightly entered conviction on the accused/appellant finding that he had committed offence punishable under Section 7 of the PC Act, 1988?

                  (ii) Is it correct to say that the appellant/accused committed the offence punishable under Section 13(1)(d) r/w 13(2) of the PC Act, 1988, as found by the Special Court?

                  (iii) Whether it is necessary to interfere with the verdict under challenge?

                  (iv) The order to be passed?

Point Nos.(i) to (iv)

9. As far as the prosecution case is concerned, the allegation is that there was demand of Rs.500/- by the accused to process the revised plan submitted by one Zeenath, in suppression of the earlier permit issued based on the plan appended thereof. The prosecution allegation would show that a civil suit was filed by one Musthafa against Zeenath restraining construction in terms of the old plan which was approved by the Panchayat, as could be seen from Ext.P11 file pertaining to the same. PW1 deposed this aspect before the Special Court. According to him, after the filing of O.S.No.41/2006, a notice was issued by the Panchayat to Zeenath to show cause why the permit should not be cancelled, and accordingly a portion of the basement was demolished and a revised plan was submitted before the Panchayat for approval along with an application. That apart, permission to construct the compound wall was also sought. Even though PW1 had approached the accused for issuing the permit based on the revised plan, the accused had prolonged the matter. While  so,  on  11.05.2007  the  accused  had  contacted  PW1  through telephone and requested to meet him in a lodge. When PW1 had met the accused at his room in a lodge on 11.05.2007, the accused demanded Rs.500/- to grant permission based on the revised plan and had requested PW1 to bring the money on 17.05.2007. According to PW1, since PW1 was not willing to give bribe, he had approached the Dy.S.P, VACB, Kannur on 11.05.2007 and had given Ext.P1 complaint. He had identified Ext.P1 and signature thereof. He had deposed about the arrival of 2 gazetted officers as part of the pre-trap proceedings, the handing over of one Rs.500/- note to the Dy.S.P, the demonstration of the Phenolphthalein test and the smearing of phenolphthalein on the Rs.500/- note, identified as M.O1, etc. Thereafter the vigilance party had reached Mattool Grama Panchayat at 12 o’ clock and PW1 had gone to the chamber of the accused and found the accused was sitting inside his chamber. When PW1 had informed the accused that he came in connection with the approval of the plan, the accused had demanded the amount. When PW1 had attempted to hand over the amount to the accused, he asked PW1 to place the currency note inside the drawer of the table. Accordingly, PW1 placed the currency note in the drawer, and the accused then closed the drawer. Thereafter, the accused came out of the cabin and went to the upstairs portion of the office, whereupon PW1 gave the signal to the police waiting outside. Later, the accused returned to his chamber, and by that time the vigilance party, including the Dy.S.P., had entered the chamber and asked about the money. According to PW1, when the hands of the accused were dipped in the Sodium Carbonate solution, there was no colour change. During cross examination of PW1, an attempt was made to categorise PW1 as a political worker. During cross examination, PW1 had stated that he along with Zeenath reached the panchayat in 2007 and submitted the revised plan and the application. He was cross examined at length, but nothing extracted to disbelieve his version.

10. Supporting the evidence of PW1, PW2 the Senior Superintendent at the office of Deputy Director of Education, Kannur, the decoy witness, was examined and he had deposed his arrival before the Dy.S.P at 10.45 a.m on 17.05.2007 and lodging of Ext.P1 complaint by PW1 and handing over of a Rs.500/- note to the Dy.S.P and he had identified M.O1 as the currency note handed over by PW1 to the Dy.S.P. He had also deposed about the demonstration of phenolphthalein test using a 500 rupee note by dipping the same in Sodium Carbonate solution and identified M.O2 as the solution used for the same and M.O3 as the 5 rupee note used for the demonstration test. Thereafter Phenolphthalein powder was smeared on M.O1 currency note and it was entrusted to PW1 with an instruction that the same should be given to the accused only if he would demand bribe and signal had to be given on receipt of the bribe amount by the accused. Ext.P2 entrustment mahazar was prepared showing the details of the incidents occurred at the Office of Deputy Superintendent of Police and it was signed by PW1, the Deputy Superintendent of Police himself (PW5) and other witnesses. Trap party reached near Mattol Panchayat Office at 12.30 p.m. PW1 and the Constable Purushothaman had been sent to the office of the accused. Subsequently the Dy.S.P had received signal and the trap party had gone to the office of the accused. Then the trap party entered the cabin of the accused. Dy.S.P had introduced him and the official witnesses to the accused and asked him whether he had received money from PW1. But the accused denied the same. Dy.S.P had called PW1, who was waiting outside to the cabin of the accused and asked him what was happened. PW1 had replied that the accused demanded money and he had refused to receive the money by his hands and the accused had instructed PW1 to put the bribe money inside the drawer of the table of the accused, and PW1 had put the currency note inside the drawer of the table, then the accused had closed the drawer of the table. Hands of the Dy.S.P and official witnesses were dipped in Sodium Carbonate solution. There was no colour change. M.O4 sample was taken from that solution. Hands of the accused were dipped in Sodium Carbonate solution. There was no colour change. M.O5 sample was taken out of it. Dy.S.P had opened the drawer of the table of the accused and M.O1 currency note was found in the drawer of the table. An officer had taken out the currency note from the drawer of the table and dipped in Sodium Carbonate solution. Solution turned pink. M.O6 sample solution was collected. When the drawer was opened, apart from M.O1 currency note, a piece of paper was also found in it. When that paper was dipped in the Sodium Carbonate solution, thee was slight colour change. M.O7 sample solution was collected. Paper was also taken into custody, which was marked as M.O8. Thereafter accused was arrested after preparing Ext.P3 arrest memo. Ext.P4 recovery mahazar was prepared stating the details of the incidents occurred at the office of the accused, where he himself, Dy.S.P, accused, and other official witnesses had signed. Trap party had returned along with the accused to the vigilance office.

11. During cross examination, PW2 had supported entry of PW9 in the chamber of the accused and further asserted that when the vigilance party had entered the chamber of the accused, the accused was there and he supported Ext.P4 recovery mahazar after understanding its contents.

12. PW3 examined in this case is the Head Constable attached to VACB, Kannur, and he had also deposed about the pre as well as post trap proceedings, supporting the evidence of PW1 and PW2, including the recovery of M.O1 series from the drawer of the table used by the accused and his arrest. PW4, who was the Head Clerk of Mattool Grama Panchayat, where the accused was working as a Secretary therein, also was examined. His evidence is that as per the Office Order, Musthafa was given charge of Building Tax and Building Rules. Usually Joining Report would be prepared, when a Secretary joined the office. A copy of joining report would be kept there and the original report would be sent to the Director of Panchayats. Copy of Joining Report of the accused was not available in the Panchayat Office during the time of trap. He was present in the Panchayat Office, when the Vigilance Party arrested the accused. His seat was outside the cabin of the Secretary. He had not noted the incidents occurred in the office till the Vigilance Party entered the office. When he had seen certain persons talking to the Secretary in his cabin, he had gone there. At that time, he had seen the accused inside the cabin of the Secretary. Subsequently he was called by the Deputy Superintendent of Police to the cabin of the Secretary and he had signed the Arrest Memo as a witness. Ext. P-3 was the Arrest Memo containing his signature. Vigilance party had taken the accused from the Panchayat Office by 5 P.M. He had produced the Attendance Register of Mattool Grama Panchayat for the period 2006-2007 which was marked as Ext.P-6 and the letter having No. A1- 1/2006 dated 16-09-2006 issued by Pooyappally Grama Panchayat Secretary and the correspondence file which was marked as Ext.P7 and Proceedings of the Secretary of Mattool Grama Panchayat having No.12/07 dated 30-04-2007 which was marked as Ext. P-8 and attested Photostat copies of pages 183 to 191    of Office Order Bookof Mattool Grama Panchayat to the Vigilance officials and they were seized as per Ext.P5 Mahazar. According to him, usually when applications for granting building permit would be submitted to the Secretary and he would initial it and entrust to the Enquiry Officer. According to him, in certain cases, Secretary himself would conduct enquiry. Application received by the Secretary should be entered in the Building Application Register. But in that Panchayat, it was not usually done. After conducting enquiry, report would be submitted to the Secretary for approval and after getting approval of the Secretary, necessary fees would be collected and if permit had to be given, it would be issued. In Mattool Grama Panchayat, applications were not entered in the register regularly. They were entered in the register only at the time of granting Permit. When he joined Mattool Grama Panchayat Office, the accused was the Secretary. Usually applications received by the Secretary would be kept by himself and it would be handed over to the section only at the time of issuing Permit. This was the procedure adopted in the office before PW4 joined the office and thereafter.

13. Ext.P10 is the application identified by PW4 as one given by C.K.T. Zeenath for granting permission to construct compound wall. That application was given in the prescribed form issued from the Panchayat Office on 07-12-2006. Application was seen prepared on 26- 12-2006. The date on which the application was submitted at the Panchayat Office was not shown in the application. That was not entered in the register. Ext.P11 is the attested copy of the application submitted by Zeenath for granting permission to construct a house. That application was received in the Panchayat Office on 07-12-2005 and permit was issued by the previous Secretary on 26-12-2005. If there was deviation in the construction of the building from the approved plan, revised plan had to be submitted to the Panchayat and after receiving the revised plan, enquiry would be conducted. If there were only minor deviations from the approved plan, a completion plan incorporating those deviations had to be submitted. When the revised plan and applications were received, they had to be kept in the file of the original plan. No revised plan and application were seen in the file of original plan produced in the Court. There was civil case regarding the construction of building and it was not proper to receive revised plan and take action on it during the pendency of civil case.

14. PW5, the Dy.S.P supported the registration of Ext.P1(a) FIR based on Ext.P1 complaint lodged by PW1 and also supported pre as well as post trap proceedings and preparation of Ext.P2 entrustment mahazar and Ext.P4 post trap mahazar in terms of the evidence of PW1 and PW2. It was through PW6, Ext.P17 property list was marked. He seized Exts.P6 to P9 documents produced by PW4 on 25.05.2007 as per Ext.P5 mahazar. It was PW6 who had placed Ext.P11 documents when the original file was produced by the accused as on 13.07.2007 as per Ext.P18 mahazar and the original file was returned to the accused as per Ext.P18(a) kychit.

15. DW1 was examined from the side of the accused. DW1 examined in this case was the U.D Clerk worked in Mattool Panchayat during the tenure of the accused and according to him, PW1 used to come to the Panchayat office and he was a leader of a political party. DW1 deposed further that PW1 had visited the panchayat office in connection with the auction regarding the boat service in Mattool Grama Panchayat which one Musthafa had bid in auction during 2006-07. There was problem regarding the fitness certificate of the boat used for the service in the panchayat and the accused issued notice to stop the service, and again auction was conducted regarding the right to conduct boat service. The attempt of the accused by adducing the evidence of DW1 is to show that PW1 was on inimical terms with the accused. But during the cross examination, his evidence was that he did not know the nature of the relationship between PW1 and Musthafa who had bid for the boat service, and that he did not know for what purpose, PW1 and Musthafa had come to the Panchayat office. Thus the evidence of DW1 adduced by the accused to show animosity between the accused and PW1 is found to be not convincing or reliable.

16. Coming to the specific contention raised by the learned counsel for the accused that the police failed to seize revised application and revised plan as the same is not available in Ext.P11 file, it is relevant to note that PW6 deposed that Ext.P11 file was produced by CW18 as per Ext.P18 mahazar after the trap and the original file was returned as per Ext.P18(a) kaichit. This evidence would show that Ext.P11 file was not taken on the date of trap and it was produced by CW18 at a belated stage. Thus there was enough time for the concerned to remove papers form part of Ext.P11 file as it was deposed by PW4 that when revised plan and application would be filed the same would be placed in the original file. Thus at the time of producing Ext.P11, knowing the trap, the revised plan and the application available at the time might have been removed and, therefore, the prosecution did not have much opportunity to get the custody of the same. Therefore, absence of the revised plan and application Ext.P11, in the above circumstances, by itself is not sufficient to brush aside the consistent evidence of PW1, PW2 as well as PW5 and PW6. Thus the evidence available would show the basis of the prosecution case regarding the demand of bribe for issuing the revised plan, particularly, after issuance of the show cause notice why the earlier permit and plan would not be cancelled, that too, in view of the injunction order obtained by one Musthafa, as evident from Ext.P11 file.

17. 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.

18. 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, 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 PC 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.”

19. 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.

20. 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.”

21. Insofar as the absence of the accused in the cabin when the vigilance party had entered the cabin is concerned, the evidence available in no way would support this contention raised by the accused. On the contrary presence of the accused in his chamber at the time when the vigilance party entered the chamber is proved by the evidence of PW1, PW2, PW5 as well as PW4 and PW6. It is true that when phenolphthalein test  was  conducted  at  the  hands of the accused, the same showed negative result and the reason is obvious. That is, PW1 had never given evidence that the accused had accepted the bribe money with his hands; instead, he deposed that the accused directed him to place the money in the drawer of the table used by the accused. Therefore the accused had no opportunity to come into contact with M.O.1, the bribe money. However, the evidence discussed herein above would categorically show that M.O1 notes were recovered from the drawer of the table used by the accused to establish acceptance of bribe by the accused in consequence of the demand spoken to by PW1. Regarding non conduct of pre-trap verification in this case, it is not mandatory that in every trap there must be a pre-trap verification, though generally pre-trap verification being followed as a convention to ensure false implication of a public servant on the basis of baseless allegations. At the same time, when the evidence adduced in a case categorically proved the ingredients of the offences alleged to be committed by the accused, non conduct of pre trap verification would be of no much significance and the same would not vanish the prosecution case which was proved by evidence.

22. Overall re-appreciation of evidence would show that the Special Court rightly entered the conviction after analysing the evidence in detail and the said finding doesn’t require any interference. Consequently, the conviction doesn’t require any interference.

23. Coming to the sentence, I am inclined to modify the sentence imposed by the Special Court to the statutory minimum, in consideration of the prayer made by the learned counsel for the appellant/accused.

24. In the result, the appeal is allowed in part. Conviction is confirmed and the sentence is modified as under:

                  (i)       The appellant/accused is sentenced to undergo rigorous imprisonment for a period of six months and to pay fine of Rs.10,000/- (Rupees Ten thousand only) for the offence punishable under Section 7 of the PC Act, 1988. In default of payment of fine, he shall undergo rigorous imprisonment for a period of one month;

                  (ii)      The appellant/accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.10,000/- (Rupees Ten thousand only) for the offence punishable under Section 13(1)(d) r/w 13(2) of the PC Act, 1988. In default of payment of fine, the accused shall undergo rigorous imprisonment for a period of one month;

                  (iii)     The substantive sentences shall run concurrently and the default sentences shall run separately.

25. The order suspending execution of sentence to the accused stands vacated with direction to him to appear before the Special Court forthwith, without fail, to undergo the modified sentence. On failure to do so by the accused, the Special Court is directed to execute the modified sentence without fail.

Registry is directed to forward a copy of this judgment to the Enquiry Commissioner and Special Judge, Kozhikode, for compliance and further steps.