Insufficient proof of demand and acceptance of bribe precludes conviction under the Prevention of Corruption Act.

JUDGMENT :

A. BADHARUDEEN, J.

1. This appeal is at the instance of the sole accused in C.C.No.05/2008 on the files of the Enquiry Commissioner and Special Judge (Vigilance), Kottayam. Respondent is the State of Kerala represented by the learned Public Prosecutor.

2. Heard the learned senior counsel for the appellant/accused and the learned Public Prosecutor for the State of Kerala representing the Vigilance and Anti-Corruption Bureau, Kottayam.

3. In a nutshell, the prosecution case is that the accused demanded Rs.500/- from PW2 for the issuance of Nijasthithi Certificate in respect of the property owned by his father on 15.02.2003 and there is further allegation that for issuance of patta in respect of the same property, a sum of Rs.2,000/- was also given by the father of PW2. On this premise, the prosecution alleges commission of offences punishable under Section s 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the PC Act, 1988’ hereinafter), by the accused.

4. Reckoning the final report filed by the Investigating Officer, the learned Special Judge took cognizance for the said offences and proceeded with trial. During trial, PW1 to PW5 were examined, Exts.P1 to P19 and MO1 to MO9 series were marked on the side of the prosecution. DW1 was examined on the side of the defence. Thereafter, the Special Court, on evidence, found that the accused committed the offences and accordingly, he was sentenced as under:

Hence for the conviction entered against the accused for the offence under S.13(2) r/w. 13(1) (d) of P.C. Act 1988, he is sentenced to undergo rigorous imprisonment for a term of 3 years (Three years) and in addition he shall pay a fine of Rs.10000/- (Rupees Ten Thousand only) and in default of payment of such fine, he shall undergo rigorous imprisonment for a term of six months and for the conviction entered against him for the offence u/s.7 of P.C. Act 1988, he shall undergo rigorous imprisonment for a term of 2 years (Two years). The above sentences shall run concurrently. Set off shall be given to the accused as provided by S.428 of the Cr.P.C. MO1 series shall be returned to PW2 and MO9 series shall be forfeited to state revenue. Mos 2 to 8 being valueless shall be destroyed after appeal/ revision, if any.

5. While assailing the verdict of the Special Court, the learned senior counsel appearing for the appellant/accused vehemently contended that the Special Court failed to appreciate the evidence on record, where the sole evidence to prove the demand, as per the prosecution case, was the testimony of PW2, who had, in fact, turned hostile to the prosecution. That apart, it is argued that the specific case of the prosecution is that, earlier, Rs.2,000/- was given when the application for issuance of patta was considered by the accused. But, as per Ext.P6 and as per the evidence of the Investigating Officer, no such records could be found. It is pointed out further that, normally, in trap cases, there would be instruction to give signal by referring a signal in a particular mode. In the instant case, the mode of signal not at all stated by any of the witnesses, and the Mahazar also does not mention it. The main contention of the accused is that, in any event, the essential ingredients to prove the offences under Section s 7 and 13(1)(d) r/w Section 13(2) of the PC Act, 1988, have not been established, since demand and acceptance are not proved; and for this reason alone, the conviction and sentence cannot be sustained.

6. The learned senior counsel placed decision of the Apex Court in Smt. Meena W/o Balwant Hemke v. State of Maharashtra, (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 esta