IMPORTANT POINT
Graft—Mere possession and recovery of currency notes from accused without proof of demand will not bring home offence of bribery.

JUDGMENT

C. NAGAPPAN, J.

1. This appeal is directed against the judgment dated 4.1.2011 passed by the High Court of Karnataka at Bangalore in Criminal Appeal no.1130 of 2007 reversing the judgment of acquittal dated 8.12.2006 in Special Case no.36 of 2001 passed by the Principal Special Judge, Mandya. The High Court in the impugned judgment found the appellant/accused not guilty of the offence under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred as “the Act”) but guilty of offences under Section 13(1)(d) read with Section 13(2) of the Act and sentenced him to undergo simple imprisonment for one year and to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for a period of three months.

2. The case of the prosecution in brief is as follows : The appellant/accused was working as Second Division Surveyor in the office of Assistant Director of Land Records, Nagamangala and on 18.2.2000 he demanded an illegal gratification of Rs.500/-from PW1 Ramesh for issuance of survey sketch pertaining to Survey no.255 of Hullenahalli village and it is further alleged that though the accused had surveyed the land on the application of the complainant he was postponing issuance of survey sketch, to force PW1 Ramesh to pay bribe. PW1 Ramesh lodged Exh.P1 complaint on 18.2.2000 with Lokayukta Police on which a case came to be registered in Crime no.1/2000 on the file of Mandya Lokayukta Police Station for the alleged offences under Sections 7, 13(1)(d) read with Section 13(2) of the Act. A trap was organized and PW2 Sridhar and PW3 Kumaraswamy, Government servants, were directed to be present as panch witnesses. PW1 Ramesh produced a sum of Rs.500/-i.e. five currency notes of Rs.100/-each and the numbers of the said currency notes were recorded in the presence of panch witnesses and the currency notes got smeared with phenolphthalein powder. The complainant Ramesh took the powder smeared notes and went along with PW3 Kumaraswamy to the house of the appellant/accused. PW2 Sridhar and PW4 Inspector Santosh Kumar stood outside the said house. The accused was watching T.V. inside the room and on seeing them, he asked PW1 Ramesh as to whether he has brought what he had asked and PW1 Ramesh answered yes and gave the currency notes of Rs.500/- and accused took them by his right hand and kept the same on his table and directed PW1 Ramesh to come on Monday for obtaining copy of the Re-Survey. They came out and PW1 Ramesh gave the signal, immediately PW4 Inspector Santosh Kumar along with PW2 Sridhar went inside the house and in the solution of clean water and sodium carbonate the right hand fingers of the accused was immersed upon which it turned into light pink color and on verification the numbers of the currency notes which were lying on the table were tallied with the numbers of the notes written in Exh.P2 Mahazar. All the formalities were completed and after obtaining sanction charge sheet came to be filed against accused.

3. The Trial Court framed charges under Sections 7, 13(1)(d) read with Section 13(2) of the Act and the accused pleaded not guilty. The prosecution examined four witnesses and marked Exh.P1 to P10 and M.Os. 1 to 10. The Trial Court held that the prosecution has failed to prove the charges against the accused and acquitted him. The State preferred appeal and the High Court in the impugned judgment held that the prosecution has failed to prove the offence under Section 7 of the Act and at the same time it proved the commission of offence under Section 13(1)(d) by the accused and consequently set aside the judgment of acquittal for said offences and convicted the appellant/accused for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Act and sentenced him as stated above. The said judgment is under challenge in this appeal.

4. We heard Ms. Kiran Suri, learned senior counsel appearing for the appellant and Mr. V.N. Raghupathy, learned counsel appearing for the respond