JUDGMENT

ARUN MISHRA, J.

1. The appeal has been preferred as against the judgment and order convicting and sentencing the appellant for commission of offence punishable under section 5(1)(d) of the Prevention of Corruption Act, 1947, thereby reversing the judgment of acquittal passed by the trial court and sentencing him for three months with a fine of Rs.50,000/- and in default to undergo SI for six months.

2. Briefly, the prosecution case is that the appellant was working as First Division Assistant in the District Treasury, Hassan. Peter Philip, CW-1 contacted him to secure refund of loan subsidy in a sum of Rs.13,990/-. He met the accused on 28.1.1988 who demanded illegal gratification of Rs.200/ As the complainant CW-1 did not like it, he contacted the Lokayukta Police on 1.2.1988 and lodged a complaint. On the said date itself, trap was arranged. The Investigating Officer (IO) secured presence of PW-1 and PW-2, the two officials of the Zila Parishad to act as trap witnesses and smeared phenolphthalein powder on the bait money and handed over the same to CW-1 with instruction to pay the same on demand. PW-2 was instructed to act as a shadow witness.

3. Peter Philip, CW-1, went along with PW-2 to the said office. CW-1 requested the accused for passing the bill. On demand, CW-1 paid the money to the accused who kept the same under the book on his table. PW-2 witnessed the transaction. On a signal being given by CW-1, the IO along with PW-1 came to the scene, phenolphthalein test was done on hand wash, colour of the solution turned pink, the solution was collected in a separate bottle and sealed, the money was recovered from the possession of the accused as per the seizure memo.

4. The complainant CW-1 died before the commencement of the trial. The prosecution examined, in all, 9 witnesses, 23 documents were exhibited and 8 material objects were submitted. The Special Judge, Hassan, vide judgment and order dated 16.4.1999 acquitted the accused. On appeal, the High Court has reversed the conviction, hence, the appeal has been filed in this Court.

5. It was submitted by learned counsel appearing on behalf of the appellant that several material circumstances were considered by the learned Trial Judge which have not been adverted to by the High Court while reversing the judgment of acquittal. Thus, an illegality has been committed. The evidence which has been adduced could not be said to be reliable. The inherent improbabilities have been ignored and the material contradictions have been lightly brushed aside. There is no assessment of the evidence made by the High Court while reversing the judgment of acquittal.

6. Learned counsel appearing on behalf of the State has supported the judgment and contended that the High Court has given adequate reasons so as to discard the trivial contradictions. The prosecution has proved the guilt beyond the periphery of doubt. No case for interference in the appeal is made out.

After hearing learned counsel for the parties at length, and going into the oral and documentary evidence on record, we are of the considered opinion that in the peculiar facts and circumstances of the instant case, the judgment and order of acquittal ought not to have been interfered with by the High Court.

7. The trial court has given varied reasons while acquitting the appellant. The trial court was cautious in considering the evidence in minute details as the complainant CW-1, Peter Philip, had died who could not be examined and subjected to cross-examination by the accused. Particularly, when the complainant had died and could not be subjected to cross-examination, in our opinion, quality and credibility of the evidence adduced by the prosecution cannot be dispensed with.

8. The accused was holding the post of First Division Assistant. He had been transferred on promotion as Head Accountant in Sub-Treasurey at Sagar. He stood relieved on 30.1.1988 before the date of incident. The accused was not working as First Div