To establish criminal misconduct by a public servant for bribery, the prosecution must prove the essential foundational facts of demand and acceptance of illegal gratification. Once these are substantiated by evidence, the court may invoke legal presumptions to sustain a conviction.

JUDGMENT :

A. BADHARUDEEN, J.

The sole accused in C.C. No.56/2006 on the files of the Court of the Enquiry Commissioner and Special Judge, Kozhikode, has filed this appeal, under Section 374(2) of the Code of Criminal Procedure, 1973 [hereinafter referred as ‘Cr.P.C.’ for short], challenging the conviction and sentence imposed by the Special Judge, against him as per the judgment dated 13.12.2012. The State of Kerala, represented by the Special Public Prosecutor is arrayed as the respondent herein. 

2. Though this Court appointed Adv.Adithya Narayanan K.G. as the State Brief to argue this appeal, as the learned counsel for the appellant has relinquished his vakalath, later Adv.B.Vinod has filed fresh vakalath for the appellant and argued the matter on merits.

3. Heard the learned counsel for the appellant and the learned Special Public Prosecutor, in detail. Perused the verdict under challenge and the records of the Special Court.

4. Parties in this appeal shall be referred as ‘accused’ and ‘prosecution’, hereafter.

5. The prosecution case is that, the accused while working as U.D. Clerk at Sub Registrar's Office, Kasaragod, being a public servant abused his position as public servant and committed criminal misconduct by demanding an illegal gratification of Rs.500/- from the complainant, on 08-08- 2005 at Sub Registrar's Office, for issuing certified copy of Document No.2815/2005 of Sub Registrar's Office, Kasaragod and reduced the same to Rs.200/- and repeated the demand on 19-08-2005 and he had demanded and accepted an amount of Rs.200/- as bribe from the complainant on 23-08-2005 at Sub Registrar's Office, Kasaragod. On this premise, the prosecution alleges commission of offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act 1988 [hereinafter referred as ‘P.C. Act, 1988’ for short], by the accused.

6. After framing charge for the above said offences, the Special Court recorded evidence and completed trial. During trial, PWs 1 to 11 were examined, Exts.P1 to P17 and MOs 1 to 3 were marked on the side of the prosecution. Even though, the accused was given opportunity to adduce defence evidence after questioning him under Section 313(1)(b) of the Cr.P.C., he did not opt to adduce any defence evidence.

7. On appreciation of evidence, the Special Court found that the accused was guilty for the offences punishable under Sections 7 and 13 (1)(d) read with 13(2) of the P.C. Act, 1988. Accordingly, the accused was convicted for the said offences and sentenced as under:

“In the result, the accused is sentenced to undergo Rigorous Imprisonment for a period of one year and to pay a fine of Rs.2,000/- and in default of payment of fine to undergo Rigorous Imprisonment for a period of three months for each of the offences punishable under Section 7 and 13(1)(d) r/w. 13(2) of the Prevention of Corruption Act, 1988. The substantial portion of the sentences shall run concurrently. Accused is entitled to get set off regarding the period of detention under Section 428 Cr.P.C. M.O-1 series currency notes will be returned to PW-7 and M.O-2 and MO-3 bottles will be destroyed as valueless after the expiry of appeal period.”

8. While assailing the verdict of the Special Court, the learned counsel for the accused raised multifold contentions. According to the learned counsel for the accused, in this case, going through the FIS as well as the evidence given by PW7, the complainant, demand of bribe on five occasions could be seen and the evidence is not conclusive to prove the demand and acceptance of bribe by the accused. According to him, in the pre-trap mahazar marked as Ext.P14, it was stated that the trap money was entrusted as smeared in phenolphthalein powder. Therefore, there is likelihood of presence of phenolphthalein at the hands of the accused and because of this reason, when the accused hand was dipped in sodium carbonate solution and the same showed pink colour change.

9. The learned counsel for the a