Judgment

O. CHINNAPPA REDDY, J.: - The Respondent was an Income-tax Officer. He was tried and convicted by the Additional Special Judge, Ahmedabad of offences under S. 161, Penal Code and. S. 5(2) read with S. 5(1)(d) of the Prevention of Corruption Act. He was sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs. 2,000/- on each of the two counts. On appeal, the High Court of Gujarat acquitted the accused of both the offences. The State of Gujarat has preferred this appeal by special leave of this court under Art. 136 of the Constitution.

2. The case of the prosecution briefly was as follows :

One Shashi Kant Mansakh Lal Sheth (P.W.2) was the Managing partner of a firm known as M/s. Hind Fertilizers, Bhavnagar. The assessments for the years 1968-69, 1969-70, 1970-71 and 1971-72 were pending before the accused-Income-tax Officer. Between June and October 1971, there were nine hearings of the case. On 7-3-72, Laxmikant Sheth (P.W.7) the Income-tax practitioner who was representing the firm, received a notice directing the firms representative to attend his office on 14-3-72 with the firms books of account and to show cause why sums totalling Rs. 1,94,378 should not be added to their returns of income for the years in question. The firm felt that the notice was not justified. As P.W.7 would be busy on 14-3-72, it was decided that they would go to the income-tax office with their books of account on 13th itself. On 10-3-72, Shashi Kant Sheth (P.W.2) contacted the income-tax officer on the telephone and the latter asked him to meet him at his residence at 2.00 P.M. Shashi Kant went to the house of accused at Bhavnagar that afternoon. He was told to come again on the evening of 13th. On the 13th, P.Ws. 2 and 7 went to the office and submitted the reply to the show cause notice. The accused wanted them to meet him again on 14th. P.W.7 said he was busy on 14th. The accused then asked P.W.2 to come alone. As previously agreed on 10th. Shashi Kant went to the house of the accused on the night of 13th when the accused told him that the clarification given by the firm was not satisfactory and that they would have to pay a sum of about Rs. 125000/- by way of tax unless a sum of Rs. 40,000 was given to him as a bribe. On P.W.2 pleading his inability to pay such a large sum, it was settled that a sum of Rs. 12,500 should be paid. P.W.2 wanted to consult his partner. He was told by the accused that he should bring the amount to his house on the evening of 14th March, 1973. Thereafter, Shashi Kant contacted Shri Judeja. Deputy Superintendent of Police, CBI who was camping at Bhavnagar. Shashi Kant Complained to him about the demand of bribe of Rs. 12,500 by the accused, Shri Judeja then took the necessary steps for laying a trap. Two officers of the postal department Shri Parikh. Manager. Postal Store Depot Ahmedabad (P.W.3) who was staving in the guest-house, and Shri Panchal, in officer of the Postal Department Stationed at Bhavnagar itself were requested to serve as panch-witnesses. Shashi Kant was asked to bring currency notes of the value of Rs. 12,500. The notes were treated with phenolphthalein powder. Shashi Kant put the notes in his pocket. He was instructed to go to the house of the accused accompanied by Parikh and to tender the amount to the accused. On the accused receiving the amount, Shri Parikh was to come out of the house and signal the police party to come. A panchnama stating all these facts was duly prepared at the guest-house. Thereafter, as arranged, the raiding party proceeded towards the house of the accused. Shashi Kant and Parikh, P.W. 2 and 3, went inside. Shashi Kant introduced Parikh to him as a member of his staff. They chatted generally for some time. The accused then mentioned about the amount to be paid to him whereupon Shashi Kant handed over the bundle of currency notes to him. The currency notes were received by the accused who carefully put them in a newspaper and folded the newspap