Proof of demand for illegal gratification is essential for conviction under the Prevention of Corruption Act; mere acceptance of a bribe is insufficient without evidence of demand.

JUDGMENT :

A. BADHARUDEEN, J.

This appeal is at the instance of the sole accused in C.C.No.33/2007 on the files of the Enquiry Commissioner and Special Judge, Kozhikode, arising out of VC No.05/2005 of Vigilance and Anti-Corruption Bureau, Kozhikode, challenging conviction and sentence imposed against him in the said case, as per judgment dated 08.02.2013.

2. Heard the learned counsel for the appellant and the learned Public Prosecutor. Perused the records of the Special Court.

3. In this case, the prosecution alleges 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), on the premise that the accused, while working as Village Man in the Village Office at Kakkoor, abused his official position as public servant and demanded an illegal gratification of Rs.100/- on 22.04.2005 from the complainant and thereafter, demanded and accepted the same at 15.00 hrs. on 25.04.2005.

4. Acting on the final report filed before the Special Court, the Special Court recorded evidence. PW1 to PW8 were examined, Exts.P1 to P20 and MO1 to MO7 were marked on the side of the prosecution. During cross examination, Ext.D1 contradiction also marked as that of PW1. DW1 was examined and Exts.D1 to D2(a) were marked on the side of the defence. Thereafter, the Special Court found that the accused committed offences punishable under Sections 7 and 13(1)(d) r/w Section 13 (2) of the PC Act, 1988 and sentenced him as under:

“In the result, the accused is sentenced to undergo Rigorous Imprisonment for a period of one year each and to pay a fine of Rs.1,000/- each and in default of payment of fine to undergo Rigorous Imprisonment for a period of three months for each of the offences punishable under Sections 7 and 13 (1) (d) r/w. 13 (2) of the Prevention of Corruption Act, 1988 . The substantive portion of the sentences shall run concurrently. Accused is entitled to get set off under Section 428 of Criminal Procedure Code regarding the period of detention undergone by him. Since complainant has given evidence that M.O-1 currency note does not belong to him, it is ordered to be confiscated and M.O-2 to MO-7 bottles are to be destroyed as valueless after the expiry of the period of appeal.”

5. While challenging the conviction and sentence imposed against the appellant, the learned counsel for the appellant/accused argued that, in this case, the prosecution relied solely on the evidence of PW1, the complainant, to prove the demand and acceptance of Rs.100/- as illegal gratification by the accused from PW1 at 15.00 hours on 25.04.2005. But when PW1 was examined, he turned hostile to the prosecution and during his cross examination also, nothing was elicited to find the element of demand. The learned counsel also pointed out that either the decoy or other witnesses either not cited by the prosecution or none of them given evidence supporting demand and in such view of the matter, the twin ingredients required to find the commission of offences under Section 7 as well as Section 13 (1)(d) r/w Section 13 (2) of the PC Act, 1988, not specifically established. Therefore, the Special Court went wrong in convicting and sentencing the accused by finding that he had committed the said offences.

6. The learned Public Prosecutor argued that the evidence of PW1 did not support the prosecution on the aspect of demand, but the element of demand has to be inferred from the circumstances, as held