1. The sole accused in C.C.No.09/2009 on the files of the Enquiry Commissioner and Special Judge, Kozhikode, is the appellant herein and she assails the conviction and sentence imposed against her in the above case, dated 31.03.2016.

2. Heard the learned counsel for the appellant/accused as well as the learned Special Public Prosecutor. Perused the trial court records.

3. On the premise that the accused demanded and accepted ₹1,000 as bribe at 6.50 p.m. on 31.10.2007, the prosecution alleges the commission of offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short, ‘the PC Act, 1988 hereinafter), by the accused, who was working as an Assistant Surgeon at the Government General Hospital (Beach Hospital), Kozhikode.

4. When the final report filed before the learned Special Judge, the learned Special Judge recorded evidence confined to that of PW1 to PW12, Exts.P1 to P33 as well as MO1 to MO11 on the side of the prosecution. No defence evidence was adduced. Finally, the learned Special Judge found on evidence that the accused committed offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act, 1988, and accordingly, the accused was sentenced as under:

                  “Accused shall suffer rigorous imprisonment for one year and pay a fine of ₹10,000/- (Rupees Ten thousand only) and, in default of payment of the fine, undergo rigorous imprisonment for three months for offence under Section 7 of the P.C. Act. She shall suffer rigorous imprisonment for two years and pay a fine of ₹10,000/- (Rupees Ten thousand only) and, in default of payment of the fine, undergo rigorous imprisonment for three months for offence under Section 13(2) r/w 13(1)(d) of the P.C. Act. The substantial sentences of imprisonment shall run concurrently. Set off is allowed under Section 428 Cr.P.C. MO1 and MO2 series currency notes shall be released to PW1 after the expiry of appeal period. MOs.3 to 11 shall be destroyed after the appeal period being useless and valueless.”

5. While assailing the conviction and sentence imposed against the appellant/accused, the learned counsel for the appellant/accused submitted that the Special Court relied on the evidence of PW1 and PW4 to prove the allegation of demand of bribe by the accused on 23.10.2007 and 29.10.2007, and the demand and acceptance of ₹1,000 as bribe by the accused on 31.10.2007. According to the learned counsel, on perusal of the evidence of PW1, there was no demand on 31.10.2007 before the alleged acceptance of bribe money of ₹500, and five numbers of 100 rupee currency notes marked as MO1 and MO2, respectively. It is also submitted by the learned counsel for the appellant/accused that, in fact, according to the prosecution, the demand was made to PW4, who is the mother-in-law of PW1. The prime challenge raised by the learned counsel for the accused/appellant is that there was no demand on the date of acceptance of the bribe and the evidence of PW1 does not disclose any such demand. Therefore, the twin ingredients of the offences alleged above failed to be established by the prosecution and, consequently, the conviction and sentence could not stand in the eye of law.

6. Dispelling this contention, the learned Special Public Prosecutor argued that even though the evidence of PW1 does not suggest any demand on the date of trap, the evidence of PW4, who is the mother-in-law of PW1, would show that when she met the accused at the medical camp held at Payyanakkal, the accused examined her and informed her that it was necessary to undergo surgery at the Government Medical College, Kozhikode, and a card was given to her. Thereafter, PW4 decided to consult the accused at the clinic conducted by her at Chakkumkadavu. When PW4 met the accused at the Beach Hospital on 23.10.2007, the Doctor advised her to undergo surgery and stated that expenses would be incurred for conducting the surgery. When PW4 enquired about the amount, the accused informed her that a sum of ₹1,000/- was required. Therefore, the demand of bribe money, which was subsequently accepted by the accused from PW4, stands proved by her evidence, and in such circumstances, the ingredients of the offences alleged are made out. Thus, no interference in the verdict impugned is necessary.

7. Adverting to the rival arguments, the points arise for consideration are;

                  (i) Whether the Special Court was right in holding that accused committed offence punishable under Section 7 of the PC Act, 1988?

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

                  (iii) Whether the verdict would require interference?

                  (iv) The order to be passed?

Point Nos.(i) to (iv)

8. In this matter, the evidence of PW1 and PW4 are relied on by the prosecution to prove the demand and acceptance of bribe by the accused. The accused herein is Dr.Rema, who actually retired from service and thereafter she had been continuing her service in Government General Hospital, Kozhikode during the time of occurrence.

9. PW1 was examined to prove the prosecution case, and he deposed that he was residing at Payyanakkal along with his family members, including his wife’s parents. PW4 Aminabi was his mother- in-law. PW4 was suffering from a tumour in her left breast. She attended a medical camp conducted at Payyanakkal High School, where she was examined and referred to the Medical College Hospital, Kozhikode. PW4 consulted a doctor at the Medical College Hospital after taking an O.P. ticket. The doctor prescribed medicines and advised surgery. Considering the difficulties in continuing treatment at the Medical College Hospital, PW1 and his family decided to consult the accused, who was conducting a clinic at Chakkumkadavu and was also working as an Assistant Surgeon at the Government General Hospital (Beach Hospital), Kozhikode. PW4 consulted the accused for the first time prior to 23.10.2007. PW1 further deposed that PW4 Aminabi and PW9 Marshida went to the clinic of the accused for consultation. After examining PW4, the accused asked PW4 to take an O.P. ticket and consult her at the Government General Hospital, Kozhikode, on 23.10.2007. Accordingly, PW4 went to the Beach Hospital on 23.10.2007 and met the accused after taking an O.P. ticket. The accused prescribed ECG and blood tests. After the test results were shown to the accused, she advised surgery. PW1 stated that when PW4 and PW9 later went to the consulting clinic of the accused, the accused demanded ₹1,000/-, stating that surgery would involve expenses. The accused informed PW4 and PW9 that surgery could be conducted on the next day upon payment of ₹1,000/-. When they expressed their inability to make the payment due to financial difficulties, the accused asked whether the amount would be paid by the brother or son-in-law of PW4. PW1 deposed that as they were unable to pay the amount, the demand made by the accused was conveyed to him. Thereafter, on 29.10.2007, PW1 and PW4 met the accused at her consulting clinic. Though they expressed their inability to pay the amount, the accused insisted on payment of ₹1,000/-. The accused informed them that the surgery date could be fixed if they met her at the Beach Hospital on 31.10.2007 and told them that the amount should be paid at her consulting clinic. Thereafter, at about 11.00 a.m. on 31.10.2007, PW1 went to the Beach Hospital, but the accused was not present in the outpatient room. He enquired about her with another lady doctor present there, who gave him the mobile phone number of the accused. PW1 contacted the accused over the phone, and the accused informed him that the operation date would be fixed upon payment of the amount at her clinic that evening. PW1 stated that since the accused demanded bribe for conducting surgery at a Government Hospital and they were unwilling to pay the bribe, he decided to lodge a complaint before the Vigilance Police. On 31.10.2007 at about 12 noon, PW1 went to the Vigilance Office, West Hill, and gave an oral complaint to the Deputy Superintendent of Police, who recorded his statement. PW1 signed the statement after reading it. Ext.P1 was the statement given by him, and on its basis, Ext.P1(a) FIR was registered. PW1 further narrated the pre-trap procedures, entrustment of MO1 ₹500/- note and MO2 series ₹100/- notes, phenolphthalein test, preparation of mahazar, and instructions given to him to hand over the currency notes to the accused only on demand. He deposed about the trap on 31.10.2007 in the consulting clinic at Chakkumkadavu, the acceptance of money by the accused, the signal given, the arrival of the vigilance team, recovery of money, phenolphthalein test conducted on the accused, and subsequent procedures. PW1 also identified Exts.P2 to P9 medical records, Ext.P10 statement recorded by the Magistrate, and spoke about the seizure of documents and further investigation. He was subjected to cross- examination, during which certain admissions and clarifications were elicited.

10. PW3 was examined to prove the trap proceedings. He deposed that while he was working as a Lecturer in the Mechanical Engineering Department at Government Polytechnic, Kozhikode at about 2.00 p.m. on 31.10.2007, he and his colleague Sajikumar reported before the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Kozhikode Unit, as directed by their Principal. PW3 narrated the pre-trap formalities, demonstration of phenolphthalein test, seizure and entrustment of currency notes, preparation of mahazars, and instructions issued to PW1. He also deposed regarding accompanying PW1 to the consulting clinic of the accused, witnessing the conversation, acceptance of money by the accused, recovery of currency notes, phenolphthalein test conducted on the accused, arrest, and preparation of mahazars. PW3 was cross- examined, during which he admitted certain limitations in his knowledge and perception but stood by the core trap proceedings.

11. PW4 Aminabi was examined, and she deposed that PW1 Jaffer is her son-in-law and that PW1 and her daughter were residing with her. She stated that she had a tumour in her left breast. She attended a free medical camp conducted at Payyanakkal after obtaining a ticket from the Government Dispensary. At the camp, a doctor examined her and informed her that surgery was required at the Government Medical College. A card was issued to her for treatment at the Medical College Hospital. PW4 deposed that on 03.08.2007, she consulted a doctor at the Medical College Hospital after taking an O.P. ticket. After tests, she was advised surgery. When she expressed difficulty in getting admitted on that day, medicines were prescribed for one month, and she was asked to come for review. Ext.P3 was identified as the O.P. ticket. Considering the difficulties in continuing treatment at the Medical College Hospital, PW4 stated that they decided to consult the accused, who was conducting a clinic at Chakkumkadavu and was known to conduct surgeries at the Beach Hospital, Kozhikode.

12. PW9 also supported the evidence of PW4 regarding the meeting of the accused for the purpose of surgery of PW4. Apart from that, PW8, the Investigating Officer supported the investigation. According to him, Ext.P1 FIS was given by PW1 and accordingly, he had registered Ext.P1 FIR as V.C.4/2007 of KKD. He also deposed about presence of PW3, Aboobacker and CW4 Sajikumar, the Gazetted Officers on the date of trap and entrustment of MO1 and MO2 series notes by PW1 to him and entrustment back the same to PW1 after smearing the same with phenolphthalein and also he deposed about phenolphthalein demonstration by using a five rupee currency note. He supported Ext.P11 as the Mahazar and Ext.P13 as the recovery mahazar.

13. Apart from the evidence of PW1 and PW4, PW3 the decoy witness also supported the prosecution in the matter of pre as well as post trap proceedings. However, PW3 did not witness the demand. The status of the accused as a Doctor, working as Assistant Surgeon at Government General Hospital, Kozhikode at the time of alleged occurrence is proved by the evidence of PW1 and PW2, who worked along with her. Apart from the evidence of PW6, retired Head Nurse, Government General Hospital, Kozhikode, PW7 and PW5 supported the prosecution case.

14. Scanning the evidence of PW1, the demand made by the accused from PW4 is that on the premise of expenses for the surgery and according to her, the Doctor said that a sum of ₹700 was necessary for purchasing surgical thread and she would get ₹300 out of it and ₹500 was to be paid to the Doctor giving anesthesia. Coming to the evidence of PW4, in fact, he met the accused at her private practising centre and entrusted the money after introducing himself as the relative of PW1 without any demand for the same.

15. Now, it is necessary to address the ingredients required to attract the offences under Sections 7 and 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.

16. 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.”

17. 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 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.

18. It is settled law that, in order to sustain a conviction under Sections 7 and 13(1)(d) of the PC Act, 1988, the prosecution is duty- bound to prove the ingredients of the said offences beyond reasonable doubt. In the present case, as already discussed, the evidence of PW1 does not disclose any demand made from him either on the date of trap or on any previous dates. According to the prosecution, the demand was allegedly made to PW4, as discussed above. Thus, the demand aspect could not be found from the evidence of PW1. That apart, with regard to acceptance also, the amount was allegedly accepted by the accused while she was engaged in private practice at her private clinic, without any demand. If that be so, whether the amount alleged to have been recovered from the accused as MO1 and MO2 series was given as illegal gratification or towards any private treatment also becomes doubtful. That is to say, when the alleged money was paid at the private clinic run by the accused, where the collection of medical expenses is not at all prohibited, and since the accused had already retired from service, the mere acceptance and recovery of money from the private clinic run by the doctor postulates serious doubts regarding the prosecution allegations, and the same should be adjudged in favour of the accused. Thus, I am of the view that the prosecution case is clouded by doubts insofar as the essential ingredients of the offences are concerned and, in such circumstances, the accused is entitled to the benefit of doubt and consequently deserves acquittal.

                  In the result, this appeal succeeds. The verdict under challenge stands set aside and the appellant/accused is acquitted for the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act, 1988, by giving benefit of doubt and she is set at liberty forthwith. Her bail bond stands cancelled.

                  Registry is directed to forward a copy of this judgment to the Special Court, forthwith.