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Judgment
A. Badharudeen, J.
This appeal is at the instance of sole accused in C.C.No.21/2003 on the files of he Enquiry Commissioner and Special Judge, Thrissur and he assails judgment dated 13.12.2013 in the said case.
Heard the learned Senior Counsel Sri B.Raman Pillai appearing for the appellant/accused and Smt. Rekha.S, the learned Senior Public Prosecutor, appearing for the prosecution.
The prosecution case is that the accused, while working as Deputy Commissioner of Excise, Central Zone, Ernakulam, by abusing his official position as public servant, demanded illegal gratification of Rs.20,000/- on 04.11.1999 from PW1 Sri Cornelius Peter for making arrangements for bottling the brandy in the distillery where PW1 was the Executive partner. Pursuant to the said demand, the accused accepted Rs.10,000/- on 05.11.1999, as part of a trap. On this premise, the prosecution addressed commission of offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 (`PC Act, 1988’ for short), by the accused.
In this matter, the learned Special Judge proceeded with trial against the accused. During trial, PW1 to PW12 were examined, Exts.P1 to P32 and M.O1 to M.O12 were marked on the side of the prosecution. On the side of the defence, Exts.D1 to D7 were marked.
The learned Special Judge meticulously analysed the evidence and found that the appellant/accused had committed the offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988 and accordingly he was sentenced as under:
“1.Under Sec.7 of the Prevention of Corruption Act, he shall undergo rigorous imprisonment for two years and shall also pay fine of Rs.10,000/- (ten thousand only), in default shall undergo rigorous imprisonment for three months;
2.Under Sec. 13(1) (d) r/w 13(2) of the Prevention of Corruption Act, marshal undergo rigorous imprisonment for three years and shall also pay fine of Rs. 10,000/-(ten thousand only), in default shall undergo rigorous imprisonment for three months;
3.The substantive sentences shall run concurrently.”
According to the learned Senior Counsel for the appellant/accused, the appellant was booked on the allegation of demanding and accepting illegal gratification by misusing his official position, on the basis of an illegal trap. According to him, even though the trial of this case had commenced in 2006, after completion of the chief examination of PW1, he did not appear before the court for more than one year and four months, and accordingly he was cross examined only on 15.07.2008. According to the learned Senior Counsel for the appellant/accused, the evidence of PW1 supported by the evidence of PW5, during cross examination, conclusively established that the FIS and FIR in the instant case were cooked up by PW5 with the connivance of PW1 arose out of a malicious intention for illegally trapping the appellant/accused. According to the learned Senior Counsel, during the cross-examination of PW1, it had come out in evidence that PW1 was involved in multiple criminal activities, including forgery and fabrication of records, as well as smuggling and the illegal import of gold and other valuables. On this premise, he was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act (`COFEPOSA Act’ for short). Therefore, he is not a reliable witness. If so, there is no evidence to show the demand and acceptance of bribe by the appellant/accused, since apart from the evidence of PW1, nobody was examined to prove the demand and acceptance of bribe by the accused. It is pointed out further that the evidence of PW2 would suggest that the M.O1 series notes (bribe money) was found on the floor of the office of the accused, which would show that there was an attempt by PW1 to put the same there with a view to trap him. Thus the prosecution failed to establish the essential ingredients necessary to constitute the offence.
Whereas the learned Public Prosecutor would submit that even though from the evidence of PW1, his involvement in various crimes could be gathered, the same is not a reason to disbelieve his version in the matter of demand and acceptance since the prosecution case is that the appellant demanded and accepted illegal gratification for the purpose of making arrangements for bottling the brandy in his distillery as he had engaged in liquor and similar types of business. Therefore likelihood of registration of the cases against PW1 and his incarceration in connection with the same would not make his evidence in the instant case of trap, where the phenolphthalein test showed positive result justifying the demand and acceptance of bribe as spoken by PW1. According to the learned Public Prosecutor, in the decision reported in [202 6 KHC OnLine 303 : 2026 KHC 303 : 2026 KER 29710], Muheshkumar K. v. State of Kerala, this Court discussed about the evidentiary value of the character of a witness, where also PW1, the complainant, had admitted, during cross-examination, regarding his involvement in certain crimes, and this Court made the following observations in paragraphs 11 and 12 as under:
“11.It is true that as per S.140 of the Evidence Act as well as under S.145 of Bharatiya Sakshya Adhiniyam, 2023, the witnesses to character may be cross - examined and re - examined, thereby ensuring that their testimony is properly scrutinised and tested for credibility. The testimony of such a witness could not be rejected automatically or casually. But the Court has to scrutinise the evidence to find as to whether the evidence is (1) consistent and coherent (2) the evidence would get support of other corroborative evidence (3) the evidence is found to be truthful and reliable even on meticulous cross examination (4) the evidence doesn't have any material contradictions and (5) the evidence is either biased or fraudulent. Thus the evidence of a witness with criminal antecedents or involvement in criminal cases should not be used merely to maliciously discredit a witness, unless the same found to be unreliable for non - satisfaction of the ingredients, illustrated above.
12.Here PW1 is a person engaged in timber business and he had involvement in certain crimes, as deposed by him during cross examination and according to PW1, in all these cases he had been acquitted. Hence PW1 had given candid evidence to prove the prosecution case and his evidence in this regard failed to be shaken in any manner to make the same as not wholly reliable. Thus on re -appreciation of the evidence of PW1 this Court could found the same as wholly reliable. Therefore, his criminal antecedents would not disqualify his evidence as unbelievable in the facts of the case as already discussed. Therefore, this challenge is found to be unsustainable. Insofar as the evidence of PW1 as to demand and acceptance of bribe is concerned, the same is found to be credible and wholly reliable, therefore, the same can be acted upon.” Therefore, there is no reason to disbelieve the version of PW1 in the matter of demand and acceptance. It is further submitted by the learned Public Prosecutor that the trap is legal and sustainable on the materials on record and, therefore, the impugned verdict does not warrant any interference.
Rival submissions now advanced persuade this court to raise the following points for determination;
Whether the Special Court is right in holding that the accused committed the offence punishable under Section 7 of the PC Act, 1988?
Whether the Special Court went wrong in holding that the accused committed the offence punishable under Section 13(1)(d) r/w 13(2) of the PC Act, 1988?
Is it necessary to interfere with the impugned judgment in any manner?
The order to be passed?
Points (i) to (iv)
As regards to the necessary ingredients to prove the offences punishable under Sections 7 and 13(1)(d) of the PC Act, 1988, prosecution has given reliance on the evidence of PW1.
In this connection it is relevant to refer a 5 Bench decision of the Apex Court in [AIR 2023 SC 330], Neeraj Dutta v. State, where the Apex Court considered when the demand and acceptance under Section 7 of the P.C Act, 1988 to be said to be proved along with ingredients for the offences under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988 and in paragraph 68 it has been held as under:
"68.What emerges from the aforesaid discussion is summarised as under:
(a)Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and (ii) of the Act.
(b)In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c)Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d)In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i)if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii)On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act.
iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act.
(e)The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands.
(f)In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g)In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1) (d) and (ii) of the Act.
(h)We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.”
Thus the legal position as regards to the essentials under Sections 7 and 13(1)(d)(i) and (ii) of the P.C Act, 1988 is extracted above. Regarding the mode of proof of demand of bribe, if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the P.C Act, 1988. In such a case, there need not be a prior demand by the public servant. The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. The mode of proof of demand and acceptance is either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. Insofar as Section 7 of the P.C Act, 1988 is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law.
In this context, it is relevant to refer the decision of this Court in Sunil Kumar K. v. State of Kerala reported in [2025 KHC OnLine 983], in Crl.Appeal No.323/2020, dated 12.9.2025, wherein in paragraph No. 12, it was held as under:
“12.Indubitably in Neeraj Dutta’s case (supra) the Apex Court held in paragraph No.69 that there is no conflict in the three judge Bench decisions of this Court in B.Jayaraj and P.Satyanarayana Murthy with the three judge Bench decision in M.Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion there is no conflict between the judgments in the aforesaid three cases. Further in Paragraph No.70 the Apex Court held that in the absence of evidence of the complainant (direct/primary,oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and 13(1)(d) r/w Section 13(2) of the Act based on other evidence adduced by the prosecution. In paragraph No.68 the Apex Court summarized the discussion. That apart, in State by Lokayuktha Police’s case (supra) placed by the learned counsel for the accused also the Apex Court considered the ingredients for the offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the PC Act,1988 and held that demand and acceptance of bribe are necessary to constitute the said offences. Similarly as pointed out by the learned counsel for the petitioner in Aman Bhatia’s case (supra) the Apex court reiterated the same principles. Thus the legal position as regards to the essentials to be established to fasten criminal culpability on an accused are demand and acceptance of illegal gratification by the accused. To put it otherwise, proof of demand is sine qua non for the offences to be established under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988 and dehors the proof of demand the offences under the two Sections could not be established. Therefore mere acceptance of any amount allegedly by way of bribe or as undue pecuniary advantage or illegal gratification or the recovery of the same would not be sufficient to prove the offences under the two Sections in the absence of evidence to prove the demand.”
In a recent decision of the Apex Court reported in [2026 INSC 365] in The State of Kerala v. K.A.Abdul Rasheed, the Apex Court considered the decision [(2023) 4 SCC 731], Neeraj Dutta v. State (NCT of Delhi) and in paragraph 13 the Apex Court held as under:
“13.We pause here to notice that the Constitution Bench in Neeraj Dutta had specifically dealt with the efficacy of the deposition of hostile witnesses. It referred with approval to Sat Paul v. Delhi Administration wherein it was held:
“52.From the above conspectus, it emerges clear that even in a criminal prosecution when a witness is cross-examined and contradicted with the leave of the court, by the party calling him, his evidence cannot, as a matter of law, be treated as washed off the record altogether. It is for the Judge of fact to consider in each case whether as a result of such cross-examination and contradiction, the witness stands thoroughly discredited or can still be believed in regard to a part of his testimony. If the Judge finds that in the process, the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy and act upon it. If in a given case, the whole of the testimony of the witness is impugned, and in the process, the witness stands squarely and totally discredited, the Judge should as a matter of prudence, discard his evidence in toto.”
PW1 examined in this case is the complainant. During chief examination, he testified that he had been engaged in sale of liquor in Dubai and he had a distillery by name Thottekkattu Distillery, Edayar during 1999, where Whisky, Brandy and Rum (Royal Army Rum, Diana Brandy, Sealord brandy) were manufactured. His version further is that he knew the accused and he had lodged a complaint against him. Ext.P1 was identified as the complaint, containing his signature. According to him, inside the distillery a preventive officer was working along with 2 guards. They used to collect sample of manufactured liquor for chemical analysis. During the above period, K.J.Antony Fransis was the Excise Inspector. According to him, 42.8% alcohol content should be there in the liquor manufactured, though adjustment of -0.5% and +0.5% also would be allowed. When the liquor manufactured in his distillery was examined in the laboratory, report came to the effect that the same contained only 35% alcohol. Then it was informed by the Excise Inspector that in order to get the same corrected, he had to meet the Assistant Excise Commissioner (the accused). During October, 1999 he met the accused at the office and he agreed to solve the issue on payment of Rs.20,000/-. Then PW1 replied that apart from giving amounts on regular monthly basis, it would be difficult for him to give such an amount. Later he met the accused on 04.11.1999 and entrusted Rs.10,000/- at his residence as instructed by the Dy.S.P. Then he agreed to give the remaining amount on the next day. Thereafter, PW1 had lodged Ext.P1 complaint on 04.11.1999 and his statement was recorded by the Dy.S.P and he put his signature. He also stated that he had mentioned the numbers of the notes, viz., Rs.10,000/- he entrusted on 04.11.1999. On the next day (05.11.1999) he reached the office of the Dy.S.P and Ext.P1 was lodged on that day. There he found M.J.Kumaran and K.Prasad, the witnesses. He deposed about the entrustment of 20, Rs.500/- notes to the Dy.S.P and noting of its numbers by the Dy.S.P after marking the same. Then Phenolphthalein test by using Sodium Carobnate solution was demonstrated. He identified 20, Rs.500/-notes as M.O1 series. Then the same was mixed with phenolphthalein powder and put the same in his pocket and the Dy.S.P instructed him to give the same to the accused on demand. He was also advised to give a signal by rubbing his head, on receipt of the bribe money. His version further is that at 1.15 p.m he reached the office of the accused along with the vigilance party. It was on that day, the accused was about to take charge as the Deputy Commissioner. Then he asked whether the bribe money was brought and commented that it was the money he had been receiving after his promotion as the D.C (Deputy Commissioner). Then he took the money from his pocket and handed over the money to the accused. He accepted the same. Then he had given signal as directed and the Dy.S.P and his team entered into the office room and the Dy.S.P introduced himself. At this juncture, the accused, who had taken out the money from his shirt's pocket, had thrown away the same. Then he was seated by the Dy.S.P.
It is true as pointed out by the learned senior counsel that even though PW1 was chief examined on 02.03.2007, he was recalled and cross examined on 15.7.2008. During cross examination, the document to show his status as the Executive partner of the distillery during 1975-76 was asked and according to him, he had produced copy of the partnership deed to the Investigating Officer. He also denied the suggestion that he was not the Executive partner of the distillery. According to him, Vincy Varghese was the Managing Partner of the distillery and letter issued by Y.George to the Excise Inspector was marked as Ext.D2, subject to the production of its original. It was further suggested that he had been engaged in the illegal transportation of spirit, which he denied. When a question was asked whether he had been detained in jail in connection with illegal transportation of spirit, he answered that he had been in jail for 14-15 days as a pre-trial prisoner and the said case was pending and he had been granted bail by this Court. He also admitted that he was detained in the Central jail under the COFEPOSA Act and that he was subsequently released by the Advisory Board. He also deposed that there was another distillery in Goa by name `Zetra Queens distillery’ owned by him. Some other crimes registered against him were also suggested and according to him, all those cases were ended in acquittal.
PW2 K.Prasad was the Assistant Engineer in Vyttila block office. According to him, at 7:30 A.M on 05.11.1999, he had reached the office of the Dy.S.P. as instructed by the Addl. District Magistrate and CW3 Kumaran and PW1 were also there. Ext.P1 complaint was read over to them. PW1 produced the M.O.1 series notes in their presence. Phenolphthalein test was demonstrated before them and samples of solution collected at the office of the Dy.S.P. were marked as M.Os 2 and 3. After smearing phenolphthalein powder on M.01 series, a Constable by name Michel put the notes in the pocket of the PW1. Necessary instructions were given to the PW1 and other witnesses. He had also attested Ext.P2 mahazar. Then the vigilance party proceeded to the office of the accused. At about 1:15 P.M. PW1 went to the office of the accused, accompanied by CW3. Other witnesses were positioned at different places. At 1:30 P.M. on getting signal from PW1, they entered the room of the accused. Then the Dy.S.P. asked the accused whether he was the Assistant Excise Commissioner Asokan and the Dy.S.P introduced the party to him and asked the accused to sit on the chair. Then a question was put as to where the money was, to which the accused answered that the money was lying on the floor. The accused denied that he had accepted bribe from the PW1. A photographer took the snaps of scattered notes. After making mutual search, when the hands of the witness and the Dy.S.P. were put in sodium carbonate solution, it showed no colour change. That solution identified as M.O.4. When the right and left hands of the accused were separately dipped in the solution, both turned pink and the solution samples were marked as M.Os 5 and 6 respectively. The accused was arrested and M.O.1 series notes found on the floor were seized. When the notes were put in sodium carbonate solution, it turned pink and that solution identified as M.O.8. He also deposed that when sodium carbonate solution was sprinkled on the pocket of the shirt worn by the accused, the same also turned pink. That shirt was removed and seized and the same identified as M.O.9. A 10 rupee note found on the floor also turned pink, when put in the solution. That note and the solution were marked as M.Os 10 and 11 respectively. He also witnessed Ext.P4 recovery mahazar. In cross examination, PW2 testified that he had accompanied the Dy.S.P. for trap earlier also. Ext.P2 mahazar was prepared at 11:30 A.M., that they reached the office of the accused at 1:15 P.M, which was 1 K.M. away from the Vigilance office. Accordingly he along with the Dy.S.P. entered the office of the accused on getting the signal.
PW3 examined here is the then Technical Asst. in Regional Chemical Examination laboratory who had issued Ext.P5 certificate in respect of the sample of liquor sent for examination from the Thotteckattu distillery. According to PW3, alcohol content in brandy should be 42.23% to 43.87% whereas the sample contained only 40.81%. She did not remember whether the certificate was kept aside to be shown to Kumudesan. Contradictions found in her statement were marked as Exts. D1 and D1(a).
PW5 is the Dy.S.P. who registered the crime after recording Ext.P1 first information statement. He was the trap laying officer. According to him, after preparing Ext.P2 mahazar in the presence of independent official witnesses, at 1 o' clock the party proceeded to the office of the accused and reached the office at 1:11 P.M. PW1 was sent to the office with marked currencies and others waited outside. At 1:35 P.M, PW1 came out and gave the signal, thus himself and other witnesses went inside; he introduced them to the accused. Immediately on recognizing them the accused took out the currency and other papers kept in his pocket and threw it on the floor. Apart from M.O.1 series notes, there were other notes of different denominations. The accused was seated on the chair and his photographs were taken. He also deposed about the phenolphthalein test on the vigilance party in tune with the version of PW3, the decoy witness. He testified further that when the hands of the accused were dipped in sodium carbonate solution, the solution showed pink colour change and then the accused was arrested and Ext.P3 arrest memo and Ext.P7 arrest report were prepared. Accused wanted to pass stool which was allowed. Then he requested for tea which was procured. Three photographs were taken at the spot. The rubber bound currencies (M.O1) were identified by the witnesses which also turned pink when put to phenolphthalein test. When sodium carbonate solution was sprinkled on the pocket of the shirt, it also turned pink. Another 10 rupee note which turned pink was also seized and all the items were recovered under Ext.P4 seizure mahazar. He also seized various documents and conducted investigation.
Ext.P6 is the prosecution sanction issued by Sri N.Sudarsanan Pillai, the then Principal Secretary, Vigilance Department. Sri N.Ramakrishnan, PW4, who was working as Additional Secretary, PWD Secretariat deposed in terms of Ext.P6 and stated that Ext.P6 had been issued by Sri Sudarsanan Pillai after perusing the entire records and on application of mind. No challenge raised as regards to prosecution sanction.
The main contention raised by the learned Senior Counsel for the appellant/accused is that the appellant had been illegally trapped by PW5, the Dy.S.P in connivance with PW1, who is a habitual offender having involvement in several criminal cases, including detention under the COFEPOSA Act. In fact, involvement of PW1 under the COFEPOSA Act was admitted by PW1 by stating that thereafter he was released by the Advisory Board. Apart from one case, regarding the other cases pointed out during cross examination, PW1 stated that all those cases were dismissed. As held by this Court in Muheshkumar’s case (supra), mere involvement of a witness in some criminal cases by itself would not make his evidence totally inadmissible though the character of such a witness may be cross-examined and re-examined to ensure that the testimony of the witness to be properly scrutinised and tested for credibility. While considering the character of the witness, who has criminal antecedents, the substratum of the prosecution case has also relevance. Here the case of the prosecution is that PW1 was engaged in the manufacture of liquors by running the distillery and when the sample for Diana brandy was tested in the laboratory, the percentage of alcohol was found only 35% as against 42.8% and when it was noticed, the Inspector informed him to meet the Assistant Commissioner of Excise. It was thereafter the trap proceedings were initiated and the accused was arrested red-handed. So the prosecution case itself is that PW1 engaged in the manufacture of liquors by running a licensed laboratory. Be it so, when he involves in the transport of illegal liquor under the premise of the licence, that by itself is not a reason to discard his evidence. Here, as argued by the learned Senior Counsel appearing for the appellant/accused, the currency notes were found on the floor, and according to PW1, when the Dy.S.P entered, the accused had thrown away the notes and thereby the same were found lying on the floor. Similar version was given by PW2 and PW5. The same were seized and identified as M.O1 series notes. Thereafter when the hands of the accused were dipped in Sodium Carbonate solution, the solution showed pink colour change justifying contact of the accused with M.O1 series while he was demanding and accepting the notes. When the shirt’s pocket of the accused was subjected to Phenolphthalein test, the same also showed pink colour change, fortifying the evidence of PW1 that the accused demanded and accepted M.O1 series and put the same in his shirt’s pocket and he throw away the same to the floor on noticing the vigilance party. Thus, Phenolphthalein test well corroborated the testimony of PW1 that the accused had demanded and accepted the currency notes, kept the same in his shirt’s pocket, and, on the arrival of the Dy.S.P threw them away, from where they were subsequently recovered by the Dy.S.P. Thus the prosecution case as to demand and acceptance, including conduct of phenolphthalein test and recovery of M.O1 series notes would substantiate that there was demand and acceptance of bribe by the accused and while demanding and accepting the same, the accused stated that it was the money he was getting after his appointment as the Deputy Commissioner. Thus the contention raised by the learned Senior Counsel for the appellant that the notes were put on the floor by PW1 with a view to trap him also could not yield. Addressing the contention raised by the learned Senior Counsel that PW1 had no connection with the Thottekkattu Distillery, Edayar, prosecution examined PW8, the manager of the Distillery. But he was declared hostile as he did not support the prosecution case that PW1 was the owner of the Distillery. Though PW8, turned hostile to the prosecution, during his cross examination by the legal advisor, he admitted that PW1 was the financial partner of the distillery. In this context, it is pertinent to note that during further cross examination, PW8 deposed that PW1 had undergone imprisonment in various jails in India. This would show that PW8 is well aware of the minute niceties of PW1 as the owner of the distillery. Be it so, the evidence of PW1 supported by the evidence of PW5 stating that PW1 was the owner of Thottekkattu Distillery, Edayar during the period of trap, is liable to be accepted. Thus this contention at the instance of the accused would necessarily fail. If that be so, the evidence discussed would categorically establish the commission of offences punishable under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988, by the appellant/accused. Therefore, the finding of the Special Court in the above line with regard to the conviction warrants no interference, and the same is confirmed.
Coming to the sentence, in consideration of the plea raised by the learned Senior Counsel, the sentence can be reduced.
In the result, the appeal is allowed in part. Conviction is confirmed and the sentence is modified as under:
The appellant/accused is sentenced to undergo rigorous imprisonment for a period of 6 months for the offence punishable under Section 7 of the PC Act, 1988 and to pay fine of Rs.10,000/- (Rupees Ten thousand only) and in default of payment of fine, to undergo rigorous imprisonment for a period of two months.
The appellant/accused is sentenced to undergo rigorous imprisonment for a period of one year for the offence punishable under Section 13(1)(d) r/w 13(2) of the PC Act, 1988 and to pay fine of Rs.10,000/- (Rupees Ten thousand only) and in default of payment of fine, to undergo rigorous imprisonment for a period of two months.
Substantive sentences shall run concurrently. Default sentences shall run separately.
The order suspending sentence and granting bail to the accused stands cancelled and the bail bond also stands cancelled.
The accused is directed to surrender before the Special Court to undergo the sentence forthwith, failing which the Special Court shall execute the sentence forthwith.
Registry is directed to forward a copy of this judgment to the Special Court for compliance and further steps.