1. This is an appeal filed by the sole accused in C.C.No.55/2016 on the files of the Enquiry Commissioner and Special Judge, Moovattupuzha, challenging the conviction and sentence imposed against him as per the judgment dated 21.12.2018. State of Kerala represented by the Vigilance and Anti-Corruption Bureau (`VACB’ for short) is the respondent.

2. Heard the learned counsel for the appellant/accused and the learned Special Public Prosecutor in detail. Meticulously gone through the verdict under challenge as well as the evidence. Also perused the decisions placed by both sides.

3. The prosecution case is that the accused while working as Excise Preventive Officer, Narcotic Enforcement Squad (NES), Adimaly during the period between June, 2009 and September, 2010, demanded and accepted Rs.10,500/- on 27.09.2010. Again on 30.09.2010, the accused demanded and accepted Rs.10,000/- from the defacto complainant as illegal gratification as a motive or reward for doing favour to the accused in Crime No.12/2009 of NES, Adimaly, to save them from the above criminal case. This is the base on which prosecution alleges commission of offences punishable under Sections 7, 8 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (`PC Act, 1988’ for short), by the appellant/accused.

4. When the final report was filed before the Special Court, the learned Special Judge completed the pre-trial formalities and framed charges for the said offences. Pursuant to framing of charges, the learned Special Judge tried the matter. During trial, PW1 to PW16 were examined and Exts.P1 to P15 as well as M.Os 1 to 9 were marked on the side of the prosecution. On the side of defence, Exts.D1 and D2 were marked.

5. The learned Special Judge appreciated the evidence to find the ingredients for the offences for which the accused was tried and found that the accused committed the offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988. Accordingly, the appellant/accused is sentenced as under:

                  “In the result, the accused is sentenced to undergo rigorous imprisonment for 2(Two) years and to pay fine of Rs.20,000/- (Rupees Twenty Thousand only) in default to undergo simple imprisonment for 2(Two) months U/s. 13(2) r/w.S.13(1)(d) of the PC Act and rigorous imprisonment for 1(One) year and to pay fine of Rs.10,000/- (Rupees Ten Thousand Only) in default to undergo simple imprisonment for 1(One) month U/s.7 of the PC Act. The substantive sentence of imprisonment shall run concurrently. The accused is entitled to set off the period of detention undergone during the investigation, enquiry and trial of the case. The accused was under detention for the purpose of this case for the period from 30.09.2010 till 07.10.2010.”

6. The learned counsel for the appellant/accused pointed out some contradictions, which are so material according to him, in the evidence of the witnesses, relied on by the Special Court to disbelieve the prosecution case. According to him, the accused never demanded or accepted bribe, as alleged by the prosecution, from the defacto complainant or anybody. He has highlighted that the Special Court relied on the evidence of PW1, PW3, PW4 and PW13, who were the accused in Crime No.12/2009 (wherein the accused was alleged to have committed offences under the Narcotic Drugs and Psychotropic Substances (NDPS) Act offences), though such evidence would not qualify the test of credibility and in such a view of the matter the verdict put under query would require intrusion.

7. He also submitted that even though initially the 2nd accused also was incorporated in this crime, the Investigating Officer in a biased manner deleted the 2nd accused from the array of accused while filing the final report and according to the learned counsel for the appellant, in fact, the demand of bribe, as alleged by the prosecution in this case, is at the instance of the Excise Circle Inspector, who subsequently removed from the array of the accused. He has reiterated the essentials to find commission of offences punishable under Sections 7 and 13(1)(d) of the PC Act, 1988 and in this regard he has placed the following decisions with respect to the respective paragraphs mentioned as under:

                  (i) [2015(4) KLT SN 47 (C.No.53) SC], Satyanarayana Murthy v. District Inspector of Police (paragraphs 18 to 25);

                  “18. This Court in A. Subair v. State of Kerala (2009) 6 SCC 587, while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction.

                  19. In State of Kerala and Anr. v. C.P. Rao (2011) 6 SCC 450, this Court, reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained.

                  20. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence Under Sections 7 as well as 13(1)(d)(i) & (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence Under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence Under Section 7 and not to those Under Section 13(1)(d) (i) & (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption Under Section 20 of the Act would also not arise.

                  21. The proof of demand of illegal gratification, thus, is the gravamen of the offence Under Sections 7 and 13(1)(d)(i) & (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act.

                  22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence Under Sections 7 or 13 of the Act would not entail his conviction thereunder.

                  23. The sheet anchor of the case of the prosecution is the evidence, in the facts and circumstances of the case, of PW1-S. Udaya Bhaskar. The substance of his testimony, as has been alluded to hereinabove, would disclose qua the aspect of demand, that when the complainant did hand over to the Appellant the renewal application, the latter enquired from the complainant as to whether he had brought the amount which he directed him to bring on the previous day, whereupon the complainant took out Rs. 500/- from the pocket of his shirt and handed over the same to the Appellant. Though, a very spirited endeavour has been made by the learned Counsel for the State to co-relate this statement of PW1- S. Udaya Bhaskar to the attendant facts and circumstances including the recovery of this amount from the possession of the Appellant by the trap team, identification of the currency notes used in the trap operation and also the chemical reaction of the sodium carbonate solution qua the Appellant, we are left unpersuaded to return a finding that the prosecution in the instant case has been able to prove the factum of demand beyond reasonable doubt. Even if the evidence of PW1- S. Udaya Bhaskar is accepted on the face value, it falls short of the quality and decisiveness of the proof of demand of illegal gratification as enjoined by law to hold that the offence Under Section 7 or 13(1) (d)(i) & (ii) of the Act has been proved. True it is, that on the demise of the complainant, primary evidence, if any, of the demand is not forthcoming. According to the prosecution, the demand had in fact been made on 3.10.1996 by the Appellant to the complainant and on his complaint, the trap was laid on the next date i.e., 4.10.1996. However, the testimony of PW1-S. Udaya Bhaskar does not reproduce the demand allegedly made by the Appellant to the complainant which can be construed to be one as contemplated in law to enter a finding that the offence Under Section 7 or 13(1)(d)(i) & (ii) of the Act against the Appellant has been proved beyond reasonable doubt.

                  24. In our estimate, to hold on the basis of the evidence on record that the culpability of the Appellant Under Sections 7 and 13(1)(d)(i) & (ii) has been proved, would be an inferential deduction which is impermissible in law. Noticeably, the High Court had acquitted the Appellant of the charge Under Section 7 of the Act and the State had accepted the verdict and has not preferred any appeal against the same. The analysis undertaken as hereinabove qua Sections 7 and 13(1)(d)(i) & (ii) of the Act, thus, had been to underscore the indispensability of the proof of demand of illegal gratification.

                  25. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, this Court in Sujit Biswas v. State of Assam (2013) 12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of "may be" true but has to upgrade it in the domain of "must be" true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused.“

                  (ii) judgment of this Court dated 19.09.2025 in Crl.Appeal No.2937 of 2008 (S.Sreekumar v. State of Kerala) (paragraphs 6 to 12 & 20);

                  “6. The learned senior counsel placed decision of the Apex Court in Meena (Smt.) w/o Balwant Hemke v. State of Maharashtra reported in [2000:INSC:218 : (2000) 5 SCC 21], where the Apex Court dealt with offence under Section 5(1)(d) r/w Section 5(2) of the Prevention of Corruption Act, 1947 to contend that offence under the PC Act also to be proved like any other criminal offence and the prosecution has to prove the charge beyond reasonable doubt and the accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vital ingredient necessary to be established to procure a conviction for the offences under consideration and mere recovery of currency note, that too, lying on the drawer of table of the accused by itself would not be sufficient to prove acceptance of bribe.

                  7. Another decision of this Court in P.A.Hariharan v. State of Kerala reported in has been placed with reference to paragraph No. 28 to contend that the statement made by the accused to the police officer during the course of investigation of the case is inadmissible in evidence in view of the embargo under Section 162 of the Code of Criminal Procedure, 1973 and under Sections 25 and 26 of the Indian Evidence Act, 1872. This decision has been placed by the learned senior counsel for the appellant/accused, since the evidence of the Investigating Officer in this line also was given by the Special Court to find demand and acceptance of bribe by the accused.

                  8. Decision in State of Lokayuktha Police, Davanagere v. C.B.Nagaraj reported in has also been placed by the learned senior counsel to buttress the point that there is no cavil that while a reverse onus under specific statute could be placed on an accused, even then, there could not be a presumption which would cast an uncalled for onus on the accused.

                  9. Another decision of the Apex Court in Mir Mustafa Ali Hasmi v. State of A.P. reported in [2024:INSC:503 : (2024) 10 Supreme Court Cases 489] was referred with reference to paragraph Nos.28 and 31, where the Apex Court considered the Constitution Bench decision in Neeraj Dutta v. State (NCT of Delhi) reported in [: 2022:INSC:1280 : (2023) 4 SCC 731], to contend that the Trap Lying Officer makes efforts to verify the factum of demand of bribe by the public servant before initiating the trap proceedings and the factum of demand of bribe would also be verified by recording the telephonic conversation between the decoy and the suspect public servant by using a recording device secretly at the hands of the decoy witness to record the conversation which would transpire during the course of acceptance of bribe by the public servant.

                  10. In another decision of the Apex Court in K.Shanthamma v. State of Telangana reported in [2022:INSC:213 : (2022) 4 SCC 574], it has been pointed out to highlight the procedure of trap.

                  11. Latest decision of the Apex Court in Sambasiva Rao M. v. State of Andhra Pradesh reported in [: 2025 KHC OnLine 6618] and the decision in Madan Lal v. State of Rajasthan reported in [: 2025:INSC:340 : (2025) 4 SCC 624] have been placed by the learned senior counsel to contend that proof of demand of bribe by public servant and its acceptance are the essentials to prove the offences under Section 13(1)(d) r/w Section 13(2) of the PC Act, 1988.

                  12. It is pointed out by the learned senior counsel for the appellant further that, the Constitution Bench in Neeraj Dutta's case (supra) laid down certain principles in paragraph No. 68 and when the said case was considered, the Apex Court allowed the appeal and set aside the judgment impugned after holding that the demand should be for payment of money by way of gratification to prove the essential ingredient of demand. He has placed the said decision by a two bench of the Apex Court reported in [2023 KHC 6268], Neeraj Dutta v. State (Govt. of N.C.T. of Delhi).

                  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."

                  (iii) [2009 KHC 4250 : 2009 (3) SCC 779 : 2009 (2) KLJ 217 : AIR 2009 SC 2022 : 2009 (2) SCC (Cri) 1 : 2009 (3) SCALE 107], Girish Babu C.M v. CBI, Cochin, High Court of Kerala(paragraphs 16 & 17);

                  16. In Suraj Mal v. State (Delhi Admn.) [(1979) 4 SCC 725 : 1980 SCC (Cri) 159] this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe.

                  17. The learned counsel for CBI submitted that the onus of proof was upon the appellant to explain as to how he came into possession of the amount recovered from him during the trap. The argument of the learned counsel is obviously based on Section 20 of the Prevention of Corruption Act, 1988 which reads as under:

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

                  (2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or, as the case may be, without consideration or for a consideration which he knows to be inadequate.

                  (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no inference of corruption may fairly be drawn.”

                  (iv) [2000) 5 SCC 21], Meena (Smt) W/o Balwant Hemke v. State of Maharashtra (paragraphs 9 & 10);

                  “9. The essential ingredients to be established to indict a person of an offence under Section 5(1)(d) of the Act are that he should have been a public servant; that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and that he should have obtained a valuable thing or pecuniary advantage for himself or any other person. Likewise, Section 161 IPC requires that the person accepting the gratification should be a public servant; that he should accept the gratification for himself and the gratification should be 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 function, favour or disfavour to any person. Like any other criminal offence, the prosecution has to prove the charge beyond reasonable doubt and the accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.

                  10. We have bestowed our careful thought on the submissions made on either side, in the light of the evidence on record. We are of the view that neither the quality of the materials produced nor their proper evaluation could, in this case, be held sufficient to convince or satisfy the judicial conscience of any adjudicating authority to record a verdict of guilt, on such slender evidence. Indisputably, the currency note in question was not recovered from the person or from the table drawer, but when the trap party arrived was found only on the pad on the table and seized from that place only. The question is as to whether the appellant accepted it and placed it on the table or that the currency note fell on the pad on the table in the process of the appellant refusing to receive the same by pushing away the hands of PW 1 and the currency, when attempted to be thrust into her hands. PW 2, one of the panch witnesses, who accompanied PW 1, as a shadow witness, when he tried to give the bribe, did not support the prosecution case. He has been treated hostile and his evidence eschewed from consideration by the courts below. The lady constable, Victoria, another shadow witness, who first arrived on the spot after the signal was given by PW 1, was not examined at the trial. Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also. In this case, the role of Victoria was to enter first and hold the hands of the accused immediately after the acceptance of the bribe amount and she was stated to have done that, as planned. For reasons best known, such a vital and important witness has been withheld by the prosecution, from being examined. Jagdish Bokade, who scribed the application dated 13-8-1986 for getting copies and who admittedly was all along with PW 1 and gave even the idea of lodging a complaint with the Anti-Corruption Bureau, has also been withheld from being examined. The other person, who was present at the place of occurrence though cited initially as a witness, was not examined by the prosecution but later was got examined as DW 1 and the evidence of this person completely belies the prosecution story. The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much wanting in this case. Even the other panch witness, PW 5 categorically admitted that even as the Inspector of Police, PW 6 arrived, the appellant gave the same version that PW 1 tried to force into her hands the currency note which she turned down by pushing it away, and his evidence also does not lend credibility to the case of the prosecution. The contradictory version of PW 1 of the very incident when earlier examined in departmental proceedings renders his testimony in this case untrustworthy. PW 3, the Head Copyist, seems to be the brain behind all this and that PW 1 as well as Jagdish Bokade appear to be working as a group in this affair and despite the blunt denial by PW 3, his closeness to PW 1 and Jagdish Bokade stands well substantiated. All these relevant aspects of the case seem to have been completely overlooked by the courts below.”

                  (v) [2025 KHC 6519 : 2025 (4) KHC SN 8 : 2025 KHC OnLine 6519 : 2025 INSC 736 : 2025 KLT OnLine 1969 : 2025 SCC OnLine SC 1175], State by Lokayuktha Police, Davanagere v. C.B.Nagaraj (para.25);

                  “25. It is pertinent to note that till 05.02.2007, when the Respondent had conducted the physical/spot inspection, there is not even a whisper of there being any demand of bribe. Moreover, when the Complainant went back to the Respondent's office at 5:30 PM with the money, the prosecution case itself as per the deposition of its witnesses makes it clear that the Respondent had informed the Complainant that he had already forwarded the concerned file. Thus, if the same is accepted, there was no occasion for the Complainant to go ahead with paying the amount, which he claims to be in the nature of bribe demanded by the Respondent, after the work for which the bribe was purportedly sought, had already been done. The observation of the High Court to this extent is correct that just because money changed hands, in cases like the present, it cannot be ipso facto presumed that the same was pursuant to a demand, for the law requires that for conviction under the Act, an entire chain - beginning from demand, acceptance, and recovery has to be completed. In the case at hand, when the initial demand itself is suspicious, even if the two other components - of payment and recovery can be held to have been proved, the chain would not be complete. A penal law has to be strictly construed [Md. Rahim Ali v. State of Assam, 2024:INSC:511 @ Paragraph 45 and Jay Kishan v. State of U.P., 2025:INSC:198 @ Paragraph 24]. While we will advert to the presumption Under Section 20 of the Act hereinafter, there is no cavil that while a reverse onus under specific statute can be placed on an Accused, even then, there cannot be a presumption which casts an uncalled for onus on the Accused. Chandrasha (supra) would not apply as demand has not been proven. In Paritala Sudhakar v. State of Telangana,2025:INSC:655, it was stated thus:

                  21. As far as the submission of the State is that the presumption Under Section 20 of the Act, as it then was, would operate against the Appellant is concerned, our analysis supra would indicate that the factum of demand , in the backdrop of an element of animus between the Appellant and complainant, is not proved. In such circumstances, the presumption Under Section 20 of the Act would not militate against the Appellant, in terms of the pronouncement in Om Parkash v. State of Haryana, (2006) 2 SCC 250:

                  22. In view of the aforementioned discrepancies in the prosecution case, we are of the opinion that the defence story set up by the Appellant cannot be said to be wholly improbable. Furthermore, it is not a case where the burden of proof was on the Accused in terms of Section 20 of the Act. Even otherwise, where demand has not been proved, Section 20 will also have no application. (Union of India v. Purnandu Biswas [2005:INSC:494 : (2005) 12 SCC 576: (2005) 8 Scale 246] and T. Subramanian v. State of T.N. [2006:INSC:10 : (2006) 1 SCC 401: (2006) 1 Scale 116])”

                  (vi) [2025 KHC 6459 : 2025 KHC OnLine 6459 : 2025 KLT OnLine 1907 : 2025 INSC 655 : 2025 SCC OnLine SC 1072], Paritala Sudhakar v. State of Telangana (para.21) :

                  “21. As far as the submission of the State is that the presumption Under Section 20 of the Act, as it then was, would operate against the Appellant is concerned, our analysis supra would indicate that the factum of demand, in the backdrop of an element of animus between the Appellant and complainant, is not proved. In such circumstances, the presumption Under Section 20 of the Act would not militate against the Appellant, in terms of the pronouncement in Om Parkash v. State of Haryana, (2006) 2 SCC 250:

                  22. In view of the aforementioned discrepancies in the prosecution case, we are of the opinion that the defence story set up by the Appellant cannot be said to be wholly improbable. Furthermore, it is not a case where the burden of proof was on the Accused in terms of Section 20 of the Act. Even otherwise, where demand has not been proved, Section 20 will also have no application. (Union of India v. Purnandu Biswas [: 2005:INSC:494 : (2005) 12 SCC 576: (2005) 8 SCALE 246] and T. Subramanian v. State of T.N. [2006:INSC:10 : (2006) 1 SCC 401: (2006) 1 SCALE 116])”

                  (vi) [2007 KHC 5678 : 2007 (2) KLD 342 (SC) : 2007(8) SCC 309 : JT 2007 (11) SC 162 : AIR 2007 SC 3213 : 2007 CriLJ 4689 : 2007 (3) SCC (Cri) 541 : 2007 (3) Guj LH619], Ganapathi Sanya Naik v. State of Karnataka (para.8).

                  “8. We have heard the learned counsel for the parties. We find that the view taken by the trial court was clearly possible on the evidence in the case. The Court had observed that the plea of the defence at the very initial stage was that PW 6 had serious animosity towards the appellant and that the currency notes had been put on the table by the former was a plausible explanation. It is in the evidence that the currency notes had not been touched by the appellant or recovered from his person. It is also the prosecution case that the relevant documents had been handed over to Nagaraja immediately after the money had been put on the table. The argument therefore that there was no occasion to make a demand for any bribe is also plausible. We are thus of the opinion that in an appeal against acquittal where the High Court's interference is in a manner circumscribed, there was no justification in upsetting the judgment of the trial court. Accordingly we allow the appeal, set aside the judgment of the High Court, and order the appellant's acquittal.”

8. Apart from that, the learned counsel for the appellant/accused argued that if there is non application of mind while granting sanction under Section 19(1) of the PC Act, 1988, the sanction to prosecute the accused is liable to be held as illegal. In this connection, the learned counsel placed decision of the Apex Court reported in [2010 KHC 4993 : 2011(1) KLT SN 20 : 2011 (1) SCC 491 : AIR 2011 SC 356 : 2011 (1) SCC (Cri) 418 : 2011 (2) SCC (L&S) 657 : 2011 (98) AIC 198 : 2011 (1) ECrN 1084], Kootha Perumal v. State Tr. Inspector of Police, Vigilance and Anti Corruption with reference to paras 13 to 15, which are extracted as under:

                  “13. We may first consider the issue as to whether sanction was duly obtained prior to the prosecution of the appellant. It is the case of the appellant that the order for sanction of the prosecution produced in this case is signed by the Municipal Commissioner of Pudukottai. According to him, a perusal of the same would show that it suffers from non-application of mind. According to the learned counsel, the sanction order must disclose that the sanctioning authority has duly applied its mind and the same must be stated in the sanction order. In support of this submission, the learned counsel has relied on a judgment of this Court in Jaswant Singh v. State of Punjab, AIR 1958 SC 124. Undoubtedly, in the aforesaid judgment this Court observed as follows:-

                  “The sanction under the Act is not intended to be nor is an automatic formality and it is essential that the provisions in regard to sanction should be observed with complete strictness;Basdeo Agarwala v. King Emperor 1945 FCR 93. The object of the provision for sanctions is that the authority giving the sanction should be able to consider for itself the evidence before it comes to a conclusion that the prosecution in the circumstances be sanctioned or forbidden. In Gokulchand Dwarkadas Morarka v. The king,1948 LR 75IA 30 the Judicial Committee of the Privy Council also took a similar view when it observed:

                  “ In Their Lordships’ view, to comply with the provisions of clause 23 it must be proved that the sanction was given in respect of the facts constituting the offence charged. It is plainly desirable that the facts should be referred to on the face of the sanction, but this is not essential, since clause 23 does not require the sanction to be in any particular form, nor even to be in writing. But if the facts constituting the offence charged are not shown on the face of the sanction, the prosecution must prove by extraneous evidence that those facts were placed before the sanctioning authority. The sanction to prosecute is an important matter; it constitutes a condition precedent to the institution of the prosecution and the Government have an absolute discretion to grant or withhold their sanction.”

                  It should be clear from the form of the sanction that the sanctioning authority considered the evidence before it and after a consideration of all the circumstances of the case sanctioned the prosecution, and therefore unless the matter can be proved by other evidence, in the sanction itself the facts should be referred to indicate that the sanctioning authority had applied its mind to the facts and circumstances of the case. In Yusofalli Mulla Noorbhoy v. R. [(1948-49) 76 IA 158] it was held that a valid sanction on separate charges of hoarding and profiteering was essential to give the court jurisdiction to try the charge. Without such sanction the prosecution would be a nullity and the trial without jurisdiction.”

                  14. Keeping in view the aforesaid statement of law, it would not be possible to conclude that the sanction order in the present case was not valid. Ext. P-2 with the present appeal is the copy of the sanction order. A perusal of the same would show that the sanctioning authority has adverted to all the necessary facts which have been actually proved by the prosecution in the trial. Upon examination of the material facts, the sanctioning authority has certified that it is the authority competent to remove the appellant from the office. It is specifically stated that the statements of the witnesses have been duly examined. Sanction order also states that the other materials such as copy of the FIR as well as the other official documents such as the different mahazars were carefully examined. Upon examination of the statements of the witnesses as also the material on record, the sanctioning authority has duly recorded its satisfaction that the appellant should be prosecuted for the offences, as noticed above. We, therefore, find no merit in the submissions of the learned counsel that the sanctioning order to prosecute the appellant was not legal.

                  15. We may also notice here that although the issue with regard to the illegality attaching to the order of sanction was raised before the trial court, it was not raised before the High Court. The trial court, on examination of the issue, also negated the submission of the appellant about any illegality attaching to the sanction order. Even though we do not have the benefit of the opinion of the High Court as the appellant has not raised the issue with regard to the illegality of the sanction order before the High Court, we are satisfied that the sanction order has been issued in accordance with law.

9. Another decision of the Apex Court reported in [2013 KHC 4983 : 2014 (1) KLD 82 : 2013 (14) SCALE 280 : AIR 2014 SC 827 : 2014 CriLJ 930 : 2014 (2) KLT SN 19 : 2014 (14) SCC 295], CBI v. Ashok Kumar Aggarwal, with reference to paragraphs 7, 8, 10 and 11 has been placed to contend that the prosecution must send the entire relevant record to the sanctioning authority including FIR, disclosure statements, statements of witnesses, recovery memos, draft charge sheet and all other relevant material for consideration of the sanctioning authority so that the sanctioning authority can either grant or refuse sanction. According to the learned counsel for the appellant, otherwise the sanction suffers from infirmity. Paragraphs 7,8, 10 and 11 read as under:

                  “7.The prosecution has to satisfy the court that at the time of sending the matter for grant of sanction by the competent authority, adequate material for such grant was made available to the said authority. This may also be evident from the sanction order, in case it is extremely comprehensive, as all the facts and circumstances of the case may be spelt out in the sanction order. However, in every individual case, the court has to find out whether there has been an application of mind on the part of the sanctioning authority concerned on the material placed before it. It is so necessary for the reason that there is an obligation on the sanctioning authority to discharge its duty to give or withhold sanction only after having full knowledge of the material facts of the case. Grant of sanction is not a mere formality. Therefore, the provisions in regard to the sanction must be observed with complete strictness keeping in mind the public interest and the protection available to the accused against whom the sanction is sought. It is to be kept in mind that sanction lifts the bar for prosecution. Therefore, it is not an acrimonious exercise but a solemn and sacrosanct act which affords protection to the government servant against frivolous prosecution. Further, it is a weapon to discourage vexatious prosecution and is a safeguard for the innocent, though not a shield for the guilty. Consideration of the material implies application of mind. Therefore, the order of sanction must ex facie disclose that the sanctioning authority had considered the evidence and other material placed before it. In every individual case, the prosecution has to establish and satisfy the court by leading evidence that those facts were placed before the sanctioning authority and the authority had applied its mind on the same. If the sanction order on its face indicates that all relevant material i.e. FIR, disclosure statements, recovery memos, draft charge-sheet and other materials on record were placed before the sanctioning authority and if it is further discernible from the recital of the sanction order that the sanctioning authority perused all the material, an inference may be drawn that the sanction had been granted in accordance with law. This becomes necessary in case the court is to examine the validity of the order of sanction inter alia on the ground that the order suffers from the vice of total non-application of mind. (Vide Gokulchand Dwarkadas Morarka v. R.[(1947-48) 75 IA 30 : (1948) 61 LW 257 : AIR 1948 PC 82] ;Jaswant Singh v. State of Punjab [AIR 1958 SC 124 : 1958 Cri LJ 265] , Mohd. Iqbal Ahmed v. State of A.P. [(1979) 4 SCC 172 : 1979 SCC (Cri) 926] , State v. Krishanchand Khushalchand Jagtiani [(1996) 4 SCC 472 : 1996 SCC (Cri) 755] ,State of Punjab v. Mohd. Iqbal Bhatti [(2009) 17 SCC 92 : (2011) 1 SCC (Cri) 949] , Satyavir Singh Rathi, ACP v State [(2011) 6 SCC 1 : (2011) 2 SCC (Cri) 782] and State of Maharashtra v. Mahesh G. Jain [(2013) 8 SCC 119 : (2014) 1 SCC (Cri) 515 : (2014) 1 SCC (L&S) 85] .)

                  8. In view of the above, the legal propositions can be summarised as under:

                  (a) The prosecution must send the entire relevant record to the sanctioning authority including the FIR, disclosure statements, statements of witnesses, recovery memos, draft charge-sheet and all other relevant material. The record so sent should also contain the material/document, if any, which may tilt the balance in favour of the accused and on the basis of which, the competent authority may refuse sanction.

                  (b) The authority itself has to do complete and conscious scrutiny of the whole record so produced by the prosecution independently applying its mind and taking into consideration all the relevant facts before grant of sanction while discharging its duty to give or withhold the sanction.

                  (c) The power to grant sanction is to be exercised strictly keeping in mind the public interest and the protection available to the accused against whom the sanction is sought.

                  (d) The order of sanction should make it evident that the authority had been aware of all relevant facts/materials and had applied its mind to all the relevant material.

                  (e) In every individual case, the prosecution has to establish and satisfy the court by leading evidence that the entire relevant facts had been placed before the sanctioning authority and the authority had applied its mind on the same and that the sanction had been granted in accordance with law.

                  10. This Court in Ashok Tshering Bhutia v. State of Sikkim [(2011) 4 SCC 402 : (2011) 2 SCC (Cri) 258 : (2011) 2 SCC (L&S) 697] , while dealing with the issue whether invalid sanction goes to the root of jurisdiction of the Court which would vitiate the trial and conviction, held (SCC p. 411, para 25) that in the absence of anything to show that any defect or irregularity therein caused a failure of justice, the contention was without any substance. (emphasis supplied) The failure of justice would be relatable to error, omission or irregularity in the grant of sanction. However, a mere error, omission or irregularity in sanction is not considered to be fatal unless it has resulted in the failure of justice or has been occasioned thereby.

                  11. The court must examine whether the issue raised regarding failure of justice is actually a failure of justice in the true sense or whether it is only a camouflage argument. The expression “failure of justice” is an extremely pliable or facile an expression which can be made to fit into any case. The court must endeavour to find out the truth. There would be “failure of justice” not only by unjust conviction but also by acquittal of the guilty as a result of unjust or negligent failure to produce requisite evidence. Of course, the rights of the accused have to be kept in mind and safeguarded but they should not be overemphasised to the extent of forgetting that the victims also have certain rights. It has to be shown that the accused has suffered some disability or detriment in the protections available to him under the Indian criminal jurisprudence. “Prejudice” is incapable of being interpreted in its generic sense and applied to criminal jurisprudence. The plea of prejudice has to be in relation to investigation or trial and not matters falling beyond their scope. Once the accused is able to show that there has been serious prejudice caused to him with respect to either of these aspects, and that the same has defeated the rights available to him under legal jurisprudence, the accused can seek relief from the court. (Vide Nageshwar Shri Krishna Ghobe v. State of Maharashtra [(1973) 4 SCC 23 : 1973 SCC (Cri) 664 : AIR 1973 SC 165] , Shamnsaheb M. Multtani v. State of Karnataka [(2001) 2 SCC 577 : 2001 SCC (Cri) 358], State v. T. Venkatesh Murthy [(2004) 7 SCC 763 : 2004 SCC (Cri) 2140], Rafiq Ahmad v. State of U.P. [(2011) 8 SCC 300 : (2011) 3 SCC (Cri) 498], Rattiram v. State of M.P. [(2012) 4 SCC 516 : (2012) 2 SCC (Cri) 481], Bhimanna v. State of Karnataka [(2012) 9 SCC 650 : (2012) 3 SCC (Cri) 1210], Darbara Singh v. State of Punjab [(2012) 10 SCC 476 : (2013) 1 SCC (Cri) 1037 : AIR 2013 SC 840] and Union of India v. Ajeet Singh [(2013) 4 SCC 186 : (2013) 2 SCC (Cri) 347 : (2013) 2 SCC (L&S) 321 .”

10. Whereas the learned Special Public Prosecutor vehemently dispelled the contention raised by the learned counsel for the appellant in this case, where, according to the learned Public Prosecutor, evidence of PWs 1, 3, 4 and 13 supported by the other witnesses including PW2, the decoy witness, categorically established the ingredients for the offences found to be committed by the accused on the submission that the verdict would not require interference. It is also submitted by the learned Special Public Prosecutor that the 2nd accused was removed from the array of accused by the Investigating Officer since no materials were found to see demand and acceptance of bribe by him and on the finding that the demand and acceptance of the bribe were at the volition of the accused. The learned Special Public Prosecutor also placed various decisions in support of his contentions as stated as under:

                  (i) [2016 KHC 054 : 2016 (15) SCC 684], Umesh Balkrishna Hirve v. State of Maharashtra (para.17);

                  “17. After going through the judgment and order passed by the High Court and the trial court as well as the material on record, the appellant's case fails to convince us. On a careful perusal of the plaintiff's testimony, we find his testimony to be reliable and credible. Given the fact that the trial was held nearly four years after the date of the alleged incident, the mere fact that there were gaps in his memory during his cross-examination would not, in and of itself, discredit his entire testimony. Further, the testimony of the complainant is sufficient to prove the factum of demand. In addition to that, the prosecution's case is supported by the testimony of the panch witness, PW 2. Therefore, there is sufficient evidence on record to prove the fact that the appellant had demanded and accepted illegal gratification from the complainant.”

                  (ii) [2019 KHC 7175 : 2020 (2) SCC 88 : AIR 2020 SC 1797], Vinod Kumar Garg v. State (Government of National Capital Territory of Delhi (para.11);

                  11. The contradictions that have crept in the testimonies of Nand Lal (PW 2) and Hemant Kumar (PW 3) noticed above and on the question of the total amount demanded or whether Nand Lal (PW 2) had earlier paid Rs 500 are immaterial and inconsequential as it is indisputable that the bribe was demanded and taken by the appellant on 3-8-1994 at about 10.30 a.m. The variations as highlighted lose significance in view of the proven facts on the recovery of bribe money from the pant pocket of the appellant, on which depositions of Nand Lal (PW 2), Hemant Kumar (PW 3) and Rohtash Singh (PW 5) are identical and not at variance. The money recovered was the currency notes that were treated and noted in the pre-raid proceedings vide Ext. PW 2/G. The aspect of demand and payment of the bribe has been examined and dealt with above. The contradictions as pointed out to us and noted are insignificant when juxtaposed with the vivid and eloquent narration of incriminating facts proved and established beyond doubt and debate. It would be sound to be cognitive of the time gap between the date of occurrence, 3-8-1994, and the dates when the testimony of Nand Lal (PW 2) was recorded, 9-7-1999 and 14-9-1999, and that Hemant Kumar's (PW 3) testimony was recorded on 18-12- 2000 and 30-1-2001. Given the time gap of five to six years, minor contradictions on some details are bound to occur and are natural. The witnesses are not required to recollect and narrate the entire version with photographic memory notwithstanding the hiatus and passage of time. Picayune variations do not in any way negate and contradict the main and core incriminatory evidence of the demand of bribe, reason why the bribe was demanded and the actual taking of the bribe that was paid, which are the ingredients of the offence under Sections 7 and 13 of the Act, that as noticed above and hereinafter, have been proved and established beyond reasonable doubt. Documents prepared contemporaneously noticed above affirm the primary and ocular evidence. We, therefore, find no good ground and reason to upset and set aside the findings recorded by the trial court that have been upheld by the High Court. Relevant in this context would be to refer to the judgment of this Court in State of U.P. v. G.K. Ghosh [State of U.P. v. G.K. Ghosh, (1984) 1 SCC 254 : 1984 SCC (Cri) 46] wherein it was held that in a case involving an offence of demanding and accepting illegal gratification, depending on the circumstances of the case, it may be safe to accept the prosecution version on the basis of the oral evidence of the complainant and the official witnesses even if the trap witnesses turn hostile or are found not to be independent. When besides such evidence, there is circumstantial evidence which is consistent with the guilt of the accused and inconsistent with his innocence, there should be no difficulty in upholding the conviction.

                  (iii) 2016 KHC 106 : 2016 CriLJ 1644], Mani K. v. Inspector of Police, Kochi (para.43);

                  “43. It is settled law that it is not possible for the witnesses to speak about the minute details of the transaction and there is possibility of discrepancy occur in their evidence on certain aspects due to lapse of time. It is for the Court to appreciate these aspects while appreciating evidence of witnesses examined in Court. Merely because there were some discrepancies in the evidence which are natural discrepancies caused on account of natural character of the witnesses or likely to occur due to lapse of time affecting the memory of a person, then it is not a ground to disbelieve the evidence of such witnesses on this aspect. So even assuming that there were some discrepancy in the evidence of Pws 1 and 2 or PW 10, that alone is not sufficient to disbelieve their evidence on the question of conspiracy hatched between accused 1 and 2 and on the basis of the conspiracy, going to Kozhikode and demanding amount with PW 1 for providing the employment to him for which he had been shortlisted for appointment and that too misusing the position of the first accused as its Principal with the aid of the second accused. So Court below was perfectly justified in coming to the conclusion that on the basis of the evidence adduced on the side of the prosecution, they have succeeded in proving the fact of conspiracy hatched between the accused 1 and 2 and they going to the house of PW1 and making demand of illegal gratification for the purpose of providing employment to him for which he has already been shortlisted as a first rank holder in the selection process conducted for that purpose with first accused as one of the members of the committee beyond reasonable doubt and thereby they have committed the offence punishable under S.120B of the Indian Penal Code and S.7 of the PC Act and rightly convicted them for the said offence.”

                  (iv) 1968 KHC 267 : 1968 KLT SN 53 :1969 KLJ 14 : AIR 1968 SC 1419 : 1969 (1) SCR 183 : 1969 CriLJ 1], Shiv Raj Singh v. Delhi Administration (para.4);

                  “4. It was then contended that the concealment of the birth of an illegitimate child was not an offence under the Indian Penal Code or any other criminal statute and if the appellant had obtained money from Russel Nathaniel, it cannot be said that the appellant had obtained a gratification 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. In other words, the argument was that the appellant could not prosecute either Miss Eylene or Russel Nathaniel or anybody else for any offence and obtaining of money by the appellant for refraining from any such imaginary prosecution cannot be said to be an offence under Section 161, Indian Penal Code or Section 3(1)(d) of the Prevention of Corruption Act. We are unable to accept this argument as correct. When a public servant is charged under Section 161, Indian Penal Code and it is alleged that the illegal gratification was taken by him for doing or procuring an official act, it is not necessary for the Court to consider whether or not the accused public servant was capable of doing or intended to do such an act; see the decision of this Court in Mahesh Prasad v. The State of Uttar Pradesh,(1955(1)SCR965) . In the second place, the charge against the appellant is also under Section 5(1) (d) of the Prevention of Corruption Act which states:

                  "5. (1) A public servant is said to commit the offence of criminal misconduct—

                  (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage, or"

                  Section 5 (2) states:

                  "(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine:

                  Provided that the court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year”

                  (v) [2011 (4) KHC 411 : 2011 (2) KLD 756], Parameswaran Pillai R. (Dr.) v. State of Kerala (para.17) .

                  “17.. In this case, absolutely there is no explanation as to how or for what reason PW 4 happened to make payment of MO 1 to the appellant. The appellant has no case that he has got any other monetary transaction with PW 4. On a careful reading of the evidence of PW 4, I find that there are certain minor discrepancies and contradictions in his evidence as stated earlier. According to the learned counsel for the appellant, as per the statement in Ext. P8, the demand was on 30/01/2001. But in the witness box he had stated that the demand was on 01/02/2001. It is true that PW 4 had given such an evidence. But when he was confronted with the statement in Ext. P8 he had deposed that the date he stated in Ext. P8 is correct. In further cross examination by the Public Prosecutor, it was stated that he did not exactly remember the date. So the discrepancy regarding the date of demand is not at all a reason to disbelieve the evidence of PW 4, a rustic villager, as such. Like that, a reading of the evidence of PWs 4 and 5 would show that there is also some discrepancy as to with whom the appellant had made the demand for illegal gratification. According to PW 5, the demand was made to her.

According to PW 4, the demand was made to him. Having taken into consideration the rustic nature of the witnesses and the circumstance that led to the payment of gratification and that the evidence was recorded more than two years after the incident, I find that such discrepancy in the evidence is trivial and not at all a reason to disbelieve the prosecution case, especially when there is no material on record to come to a conclusion that either PW 4 or PW 5 had got any axe to grind against the appellant. So also, there is nothing on record to find that PW 6 was susceptible to any source of influence by PW 4 and to implicate the appellant with a crime of this nature. The evidence of PW 1 would show that he was working as an Assistant Director. No doubt he is a responsible officer. No suggestion was made to PW 1 that PW 1 was anyway having any favour or disfavour either with the prosecution or with the defence. In the light of the evidence of PW 1, the failure of the prosecution to examine the patients who were inside the room of the appellant is not much relevant. The question arises is whether the evidence available on record is believable and it is not at all relevant whether the prosecution could have collected more evidence or more number of witnesses could have been examined.“

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

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

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

                  (iii) Is it necessary to interfere with the judgment in any manner?

                  (iv) The order to be passed?

Points (i) to (iv)

12. In this case, the prime witness for the prosecution is none other than PW1. The prosecution case is that in order to save the accused persons, in Crime No.12/2009 of NES, Adimaly, who got examined as PW1, PW3, PW4 and PW13, the appellant/accused, who dealt with the case demanded and accepted bribe. The prosecution examined all the accused persons, viz. PW1, PW3, PW4 & PW13 in Crime No.12/2009 of NES, Adimaly, to prove the prosecution case apart from the decoy witness examined as PW2 as well as PW14, the trap laying officer.

13. In this case, PW12 issued Ext.P10 sanction to prosecute the accused and it was found by the learned Special Judge that during examination PW12 deposed that he had verified all the prosecution records and applied his mind before granting sanction. On going through Ext.P10 order of sanction, it could be seen that the order speaks of mind application by PW12, as deposed by him before the court. Therefore, the contention raised by the learned counsel for the appellant that there was non application of mind and there was failure to produce all the records, based on the decisions in Kootha Perumal v. State Tr. Inspector of Police, Vigilance and Anti Corruption’s case (supra) and CBI v. Ashok Kumar Aggarwal’s case (supra), is found to be unsustainable and is accordingly repelled.

14. Now it is necessary to evaluate the evidence of PW1. According to PW1, he had engaged in sale of vehicles and properties and he was familiar with the accused, who was the Excise Preventive Officer. According to him, he had lodged Ext.P1 complaint before the Dy.S.P Vigilance on 30.09.2010 and he identified the same. PW1 deposed that Manoj (PW4), Melbin Thomas (PW13) and Vinod (PW3) were arrayed as accused in Crime No.12/2009, NES, Adimaly. During investigation, the accused as well as the Excise Circle Inspector, Jose Mathew demanded bribe to delay the filing of final report in the said crime and to save them from the prosecution and also to do things necessary to get them bail, by delaying filing of final report within the statutory period. He deposed about the source of money he had arranged for giving the same to the accused by selling his vehicle. According to him, he himself - PW1, PW4, PW13 and PW3 were in jail for 6 months in connection with the above crime and thereafter they were released on bail on condition to appear before the Investigating Officer twice in a week. When he and PW4 met the accused and the Excise Circle Inspector Jose Mathew, they demanded Rs.50,000/- as bribe to escape from the case and also to avoid jail sentence. When they informed their financial difficulty to arrange Rs.50,000/-, the accused instructed them to pay Rs.20,000/- to Jose Mathew at once and to pay the balance before he got transferred. When he met Jose Mathew along with PW3, PW4 and PW13, Jose Mathew had instructed to entrust an amount of Rs.10,000/- to the accused and accordingly on 27.09.2010 PW1 had handed over Rs.10,000/- to the accused for giving to Jose Mathew and Rs.500/- to the accused and at the time of handing over the money all of them were present. According to PW1, he did not have interest to pay bribe and thus he had given Ext.P1 statement before the Vigilance. He deposed about the presence of gazetted officers at the time of lodging Ext.P1 complaint and preparation of pre-trap mahazar while entrusting Rs.10,000/- to the Dy.S.P for the purpose of arranging trap. He deposed about the demonstration of phenolphthalein test by using Sodium carbonate solution and its colour change. Thereafter Rs.10,000/- entrusted by him to the Dy.S.P was smeared with phenolphthalein powder and given back to him with direction to give the same to the accused only on demand. According to him, at 7 a.m he reached the office of the Dy.S.P and at 7.45 a.m they went to the office of NES, Adimaly. The Dy.S.P given instruction to give signal by lifting the collar of his shirt from behind and 3-4 police officers were also directed to follow PW1. At this time, PW4 Manoj, PW13 Melbin and PW3 Vinod were also present when they met the accused and the accused directed to move towards Matha Bar and he would accept the money wherefrom. When they moved towards Matha Bar, C.I Jose Mathew and the accused reached in front of Matha Bar in a Government jeep and the accused got down from the jeep and moved towards them. It was the day on which the verdict of Ramajanmabhumi-Babri Masjid dispute was delivered by the Apex Court and therefore the Matha Bar was closed and accordingly the accused directed them to move near the NES office. The accused expressed readiness to accept the bribe money near the NES office. Then all of them reached NES office. Then Jose Mathew and the accused reached near the NES Office in a jeep and the accused got down therefrom and asked whether the money was brought, it was replied in the affirmative and accordingly PW1 was directed to walk towards KAMCO junction. When PW1 reached KAMCO junction, the accused followed him and when they reached the field office of the Spices Board, a lorry was found parked on the side of the road and then the accused asked about the money and when he was informed that Rs.10,000/- was brought and then the accused demanded the money and accepted the same by using his left hand; and he had entrusted the money taken from his pocket; and he moved towards Adimaly town and on getting signal, the Dy.S.P and 2 gazetted officers and policemen reached there and the Dy.S.P introduced the accused. Then the accused thrown away the money on seeing the police party and when the Dy.S.P asked, the accused admitted receipt of money and throwing of the same to the nearby canal and PW2 then checked the canal and he could find only 9 numbers of 1,000/- rupee notes, though one 1000/- rupee note could not be located. He also identified Ext.P2 as the note book showing their presence and putting signatures in obedience to the bail order in Crime No. 12/2009 of NES, Adimaly from 29.03.2010 onwards.

15. PW1 was cross examined to ascertain the details regarding the dates he along with PW4, PW13 and PW3 appeared before the Excise Inspector for signing and also to shake his version regarding the demand and acceptance of bribe by the accused. In fact, no material contradiction was extracted to disbelieve the version of PW1.

16. Coming to the evidence of PW4, PW13 and PW3, they had also supported the version of PW1 as regards to demand and acceptance of bribe by the accused as deposed by PW1 and as alleged by the prosecution.

17. Apart from the evidence of PW1, PW3, PW4 and PW13, the prosecution examined PW2 the Agricultural Officer, Krishi Bhavan, Vannapuram, who was the decoy witness in this trap. He deposed that he appeared before the Dy.S.P Vigilance Office, Muttom at 6.45 a.m as directed and during his appearance, Dr.Biju, the Veterinary Surgeon, also was present therein (he is the other decoy witness). When PW2 reached the office of the Dy.S.P, PW1 was there. The Dy.S.P introduced PW1 to him. According to PW2, the Dy.S.P informed him that initially Rs.50,000/- was demanded as bribe by the accused. Now PW1 brought Rs.10,000/- and the Dy.S.P. had taken down the number of the notes and put his initials thereof. He also deposed about the demonstration of phenolphthalein test by using Sodium Carbonate solution at the instance of a police officer and the colour change when the notes were smeared with phenolphthalenin. He identified Ext.P3 as the pre-trap mahazar. According to him, at about 7.45 a.m the trap party moved towards Adimaly and the trap party consisted of 10-12 persons and they reached at 9.45 a.m in Adimaly. Then the Dy.S.P sent PW1 to the office of the accused with specific direction to hand over the bribe money entrusted to him after smearing phenolphthalein powder on demand by the accused. 3- 4 police officers were also sent along with him to show the signal back to back. Thereafter at 11 a.m they received signal showing demand and acceptance of bribe by the accused. Then the party reached near the accused and the Dy.S.P asked the name of the accused and he replied in the affirmative and on seeing the Dy.S.P he immediately thrown away the bribe money in a canal nearby. PW2 checked the canal as directed by the Dy.S.P and he had obtained 5 notes of Rs.1,000/- and 4 notes of Rs.1,000/- and then 10 out of the 9 notes were taken by him and he identified the accused as the person, who thrown away the notes. He also deposed about the dipping of the hands in the Sodium Carbonate solution by the Dy.S.P and Biju in a sample of Sodium Carbonate solution and there was no colour change and the sample so taken was identified as M.O2. Thereafter another sample of Sodium Carbonate solution was taken and the right hand of the accused was dipped and it showed pink colour change. The said sample got identified as M.O3. He also deposed that when the left hand of the accused was dipped in the solution, the same showed pink colour and the sample so collected got identified as M.O4. The handkerchief and the right hand of the accused were dipped in another sample of Sodium Carbonate solution and there was no colour change and the said solution identified as M.O5. Thereafter the hands of PW2 and the notes recovered also were dipped in Sodium Carbonate solution and the same showed pink colour change and he identified the sample so used as M.O6. He also narrated about the preparation of seizure mahazar and identified the same as Ext.P4. He also identified M.O1 series as 9 numbers of 1,000/- rupee notes taken by him. He was also subjected to searching cross- examination, but nothing was extracted to disbelieve him or no material contradictions were brought out.

18. It is pointed out by the learned counsel for the appellant/accused that there is anomaly in the evidence of PW2 with that of PW13 as PW2 deposed during cross examination that, PW2 and PW14- the Dy.S.P on getting signal at 11 a.m reached in front of the field office near Spices Board, KAMCO junction and found that the policemen restrained the accused and when they got down from the vehicle, the man who was restrained by the police, thrown away the notes from his left hand. But according to the learned counsel for the accused, the evidence of PW2 is that after getting signal at 11 a.m the Dy.S.P and trap part reached near KAMCO junction and reached towards the accused and when the Dy.S.P asked as to whether the accused had accepted bribe, on hearing so, he had thrown away the bribe money into a nearby canal. In fact, on meticulously analysing the evidence of PW2 and PW14, there is no material contradictions to disbelieve the versions of them, rather than some immaterial anomalies due to efflux of time, ie ,the time gap between the date of occurrence and date of examination of them, i.e, 7 to 8 years.

19. In this case, apart from this, the evidence of PW7, PW8, PW10, PW11, PW12, PW15 and PW16 were also adduced by the prosecution. PW15 examined in this case was the Dy.S.P, VACB, Idukki and according to him, on getting sanction for prosecution, he had recorded the statement of sanctioning authority who was examined as PW12. According to PW15, in the FIR there were 2 accused, but at the time of filing charge one among them was deleted. Ext.P10 is the sanction order issued in this case by PW12, the Excise Commissioner, State of Kerala as on 02.09.2011 and on evaluating the evidence of PW12 and Ext.P10, the sanction order is perfectly in order, as already held.

20. PW7 deposed that he had been working as the Excise Inspector, NES, Adimaly during the year 2010. He deposed that the accused worked there as Preventive Officer during the relevent time. The head of the office was the Circle Inspector named Jose Mathew. The administration of the office and the investigation of the case were conducted by the Circle Inspector. The staff strength of the aforesaid office was one Circle Inspector, one Excise Inspector, 4 Preventive Officers, 15 Excise Guards, one driver and one part time sweeper.

21. PW7 testified that the duty of the Preventive officers and the guards was to assist the Circle Inspector and Excise Inspector. According to PW7, 30.09.2010 was declared as dry day in connection with the Judgment in Babri Masjid case. The accused was deputed for investigation outside on that day. On that day, the Circle Inspector went to Adimaly court and he came back. PW1, PW3, PW4 and PW13 had been attending the office for affixing their signatures in obedience to the condition imposed in their bail order. The aforesaid case was investigated by the Circle Inspector. On 30.09.2010, Vigilance officials came to the office along with the accused in this case. PW7 produced the Attendance Register, Cash in Hand Register and Bail Condition Register before the Dy.SP, Vigilance which were seized by him as per Ext.P5 Mahazar and PW7 identified and admitted his signature therein. Ext.P6 series are the Attendance Registers during the period from January 2009 to September 2010. The accused put his initial on 30.09.2010 in Page no. 22 of Ext.P6 series. Ext.P6 (a) is the aforesaid page. PW7 deposed that Ext.P2 series are the Conditional Bail Registers. The Circle Inspector had affixed his signature to the certificate in the first page of Ext.P2 series. PW1, PW3 and PW4 had affixed their signatures in Ext. P2 (a) and P2 (g). PW13 affixed his signature in page no 3 to 7 of Ext.P2 series which are Ext.P2(k), P2(l), P2(m), P2(n) and P2(o). PW7 testified further that, the accused was suspended as per the order of the Deputy Commissioner.

22. PW7 deposed that it was seen from Ext.P2 (o), P2(f) and P2(j) that PW13, PW3 and PW4 had affixed their signatures in Ext.P2(o), P2(f) and P2(j) at 10.30 am respectively. It was seen from Ext.P2(c) that PW1 affixed his signature in Ext.P2(c) at 10 am on 30.09.2010.

23. The Excise Guard in the NES, Adimaly during the year 2010 got examined as PW8. He testified that Jose Mathew was the Circle Inspector, and that the accused worked as Preventive Officer in NES, Adimaly during the year 2010. The custodian of the Service Book of the accused was the Circle Inspector. PW8 produced the Service Book of the accused having two volumes before the Dy.SP, Vigilance, Idukki on 17.12.2010 which was seized as per Ext. P8 Mahazar which bears his signature.

24. PW10 had been working as Constable in VACB, Idukki during the period from 30.06.2010 to 23.05.2017. According to him, on 30.09.2010 at about 7 am, PW14 called him to his room and asked him to demonstrate Phenolphthalein test. Apart from PW14, the A.S.I named Suresh and three other persons were also there. PW10 took water in one glass and Sodium Carbonate solution in another glass and he put Phenolphthalein powder in both the glasses and then the Sodium Carbonate solution became pink in colour. PW14 narrated the matters to the persons present there.

25. PW11 had been working as Excise Deputy Commissioner from 19.07.2010 till 2012. He deposed that the office of the NES, Adimaly was within his jurisdiction. According to PW11, the cases registered by the NES, Adimaly were investigated by the Circle Inspector of that office, and that on completion of investigation, final report would be filed only after showing the same to him. After interrogating the witnesses and recording their statements and after obtaining chemical examination report, Final report would be filed. Ext.P9 series is the certified copy of the final report in Crime No. 12/2009 of NES, Adimaly.

26. PW11 deposed that the Circle Inspector named Jose Mathew was the Investigating officer of the aforesaid case. PW11 identified the signature of Jose Mathew in Ext.P9 series Final report. According to PW11, he had verified the records of the aforesaid case. He deposed that the Chemical Analysis Report in Crime No. 12/2009 of NES, Adimaly was received on 20.04.2010, and that Final Report was filed in the aforesaid case on 16.11.2010 which was taken on the file of the court on 18.11.2010. PW11 deposed that the accused in this case was the Preventive Officer of NES, Adimaly.

27. The Special Court had given much emphasis to the evidence of PW1, PW4 and PW13 as well as PW3 along with other evidence discussed herein above and held that the prosecution successfully proved the ingredients to find commission of offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988.

28. 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.

29. In this context, it is relevant to refer the decision of this Court reported in [2025 KHC OnLine 983], Sunil Kumar K. v. State of Kerala, 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.”

30. As regards to the contention raised by the learned Counsel for the appellant that there is a settled convention in trap-case that the trap laying officer to make efforts to verify the trap and payment of bribe by the public servant before initiating the trap proceedings with the aid of the decision Mir Mustafa Ali Hasmi v. State of A.P’s case (supra). Following the said decision as well as the decision of the Apex Court reported in [(2025) 4 SCC 624], Madan Lal v. State of Rajasthan, the law that emerges is that failure to conduct pre-trap verification, coupled with inconsistencies in witnesses’ statements or trap proceedings, during evidence would create doubt about the demand affecting the credibility of the trap and the same could be adjudged as a ground for acquittal. Thus the legal position is not in dispute though merely because an omission at the instance of the Investigating Officer to make an effort to verify the factum of demand of bribe before initiating trap proceedings the same by itself would not become fatal to the prosecution when the prosecution evidence adduced would categorically establish the offences by proving the ingredients of Section 7 regarding the demand as well as acceptance of the bribe by the accused. Therefore, this contention also must fail.

31. On perusal of the evidence discussed, there is no material contradictions or anomalies could be found to disbelieve the prosecution evidence discussed in detail, whereby the learned Special Judge found that the accused committed the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988. Thus on re-appreciation of evidence, this Court is also of the view that the Special Court rightly evaluated the evidence and found so and therefore the conviction imposed by the Special Court doesn’t require any interference.

32. Coming to the sentence, leniency can be shown to reduce the sentence to the statutory minimum, as requested by the learned counsel for the appellant.

33. In the result, this Crl.Appeal is allowed in part. Conviction imposed by the Special Court stands confirmed and the sentence stands modified as under:

                  (i) The appellant/accused is sentenced to undergo simple 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 PC Act, 1988. In default of payment of fine, the accused/appellant shall undergo rigorous imprisonment for a period of six weeks.

                  (ii) The appellant/accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay fine of Rs.20,000/- (Rupees Twenty 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/appellant shall undergo simple imprisonment for a period of three months.

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

34. As a sequel thereof, the order suspending sentence and granting bail to the accused stands cancelled and the bail bond also stands cancelled. The accused is directed to appear before the Special Court to undergo the modified sentence forthwith, 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 Enquiry Commissioner and Special Judge, Moovattupuzha, for compliance and further steps.