Proof of demand for illegal gratification is essential for conviction under the Prevention of Corruption Act, and mere recovery of bribe money without establishing demand is insufficient.

JUDGMENT :

V. SRISHANANDA, J.

Accused No.1 who suffered an Order of conviction for the offences punishable under Sections 7, 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 in Spl. Case No.70/2007 dated 02.12.2011 on the file of the III Addl. Sessions and Special Judge, Mysuru, has preferred the present Criminal Appeal questioning the validity of the said judgment.

2. Facts of the case in brief which are utmost necessary for disposal of the present appeal are as under:

Appellant/accused No.1 was working as Commercial Tax Officer in Commercial Tax Office, Mysuru. Accused No.2 by name Smt.H.S.Kanthi was the typist in the very same office. Complainant-Sri. Ganesh Shetty was working as an accountant in Lakshmi Control System situated at Hootagalli Industrial Area, Mysuru. Said Ganesh Shetty had been to the office of the appellant to receive Form No.37 on behalf of Lakshmi Control System being the duly authorized by the owner thereof and submitted the requisition for issue of Form No.37.

3. On 16.07.2006 when complainant visited the appellant with a request to issue Form No.37, appellant said to have demanded a sum of Rs.3,000/- of which a sum of Rs.2,000/- is his share, balance sum of Rs.300/- to be paid to accused No.2 and Rs.600/- to be paid to the Inspector and remaining balance of Rs.100/- to the attendar of the office. Complainant came back without Form No.37 and intimated the demand made by the appellant to his Boss.

4. On 19.07.2006, complainant, as per the instructions of his Boss, made a complaint to the Lokayuktha office to trap the appellant. Based on the said complaint, Lokayukta police, Mysuru, registered a case and secured two independent persons to act as panchas for the intended trap. Thereafter, head of the raid party explaining the necessary details of the intended trap, demonstrated the chemical reaction of Sodium Carbonate solution with phenolphthalein powder, took the intended bribe money from the hands of the complainant and smeared phenolphthalein powder, noted the serial numbers of the said currency notes and drafted the experimental mahazar. One of the panchas was directed to accompany the complainant at the time of handing over the tainted currency to the hands of the appellant/accused No.1 only on demand and others were required to wait outside the office of the accused.

5. On getting the instructions from the head of the raid party, complainant and shadow witnesses went to the office of the appellant on 19.07.2006 and entered the chamber of the appellant. In the chamber, apart from the appellant, Sri Mallikarjuna was also present. When the appellant demanded the bribe money, complainant handed over the same to the hands of the appellant who counted the same and tried to return sum of Rs.1,000/- by saying that Rs.2,000/- is his share and balance sum of Rs.1,000/- is to be distributed among the Commercial Tax Inspector, Accused No.2-Typist and ‘D’ group employee.

6. At that juncture, Sri Mallikarjuna who was present in the chamber said to have told the appellant that Commercial Tax Inspector is absent on that day. Therefore, appellant retained Rs.600/- being the share of the Commercial Tax Inspector to pay him on the next day and appellant wanted to return Rs.400/- to the hands of the complainant to distribute the same to accused No.2 and the attendar.

7. At that juncture, complainant went out of