Prosecution must establish a clear demand for bribery; mere acceptance without proof of demand does not constitute an offence under the Prevention of Corruption Act.

JUDGMENT :

A. BADHARUDEEN, J.

1. The sole accused in C.C.No.09/2009 on the files of the Enquiry Commissioner and Special Judge, Kozhikode, is the appellant herein and she assails the conviction and sentence imposed against her in the above case, dated 31.03.2016.

2. Heard the learned counsel for the appellant/accused as well as the learned Special Public Prosecutor. Perused the trial court records.

3. On the premise that the accused demanded and accepted Rs. 1,000 as bribe at 6.50 p.m. on 31.10.2007, the prosecution alleges the commission of offences punishable under Sections 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, who was working as an Assistant Surgeon at the Government General Hospital (Beach Hospital), Kozhikode.

4. When the final report filed before the learned Special Judge, the learned Special Judge recorded evidence confined to that of PW1 to PW12, Exts.P1 to P33 as well as MO1 to MO11 on the side of the prosecution. No defence evidence was adduced. Finally, the learned Special Judge found on evidence that the accused committed offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the PC Act, 1988, and accordingly, the accused was sentenced as under:

“Accused shall suffer rigorous imprisonment for one year and pay a fine of Rs. 10,000/- (Rupees Ten thousand only) and, in default of payment of the fine, undergo rigorous imprisonment for three months for offence under Section 7 of the P.C. Act. She shall suffer rigorous imprisonment for two years and pay a fine of Rs. 10,000/- (Rupees Ten thousand only) and, in default of payment of the fine, undergo rigorous imprisonment for three months for offence under Section 13(2) r/w 13(1)(d) of the P.C. Act. The substantial sentences of imprisonment shall run concurrently. Set off is allowed under Section 428 Cr.P.C. MO1 and MO2 series currency notes shall be released to PW1 after the expiry of appeal period. MOs.3 to 11 shall be destroyed after the appeal period being useless and valueless.”

5. While assailing the conviction and sentence imposed against the appellant/accused, the learned counsel for the appellant/accused submitted that the Special Court relied on the evidence of PW1 and PW4 to prove the allegation of demand of bribe by the accused on 23.10.2007 and 29.10.2007, and the demand and acceptance of Rs. 1,000 as bribe by the accused on 31.10.2007. According to the learned counsel, on perusal of the evidence of PW1, there was no demand on 31.10.2007 before the alleged acceptance of bribe money of Rs. 500, and five numbers of 100 rupee currency notes marked as MO1 and MO2, respectively. It is also submitted by the learned counsel for the appellant/accused that, in fact, according to the prosecution, the demand was made to PW4, who is the mother-in-law of PW1. The prime challenge raised by the learned counsel for the accused/appellant is that there was no demand on the date of acceptance of the bribe and the evidence of PW1 does not disclose any such demand. Therefore, the twin ingredients of the offences alleged above failed to be established by the prosecution and, consequently, the conviction and sentence could not stand in the eye of law.

6. Dispelling this contention, the learned Special Public Prosecutor argued that even though the evidence of PW1 does not suggest any demand on the date of trap, the evidence of PW4, who is the mother-in-law of PW1, would show that when she met the accused at the medical camp held at Payyanakkal, the accused examined her and informed her that it was necessary to undergo surgery at the Government Medical College, Kozhikode, and a card was given to her. Thereafter, PW4 decided to consult the accused at the clinic conducted by her at Chakkumkadavu. When PW4 met the accused at the Beach Hospital on 23.10.2007, the Doctor advised her to undergo surgery and stated that expenses would be incurred for conducting the surgery. When PW4 enqui