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TMI Blog2009 (5) TMI 912X X X X Extracts X X X X X X X X Extracts X X X X ..... ction at the Sub- Regional Transport Office, Attingal. One Manaf had applied for a driving licence which was issued to him but since that was not issued in book form, he made an application to get it converted into book form. Despite several visits made by Manaf, the appellant did not deliver him the driving licence in book form and he was asked to come time and again. On April 24, 1989, when Manaf visited the office, the appellant informed him that the driving licence in book form was ready. The appellant demanded an amount of ₹ 25/- for delivery of the driving licence in book form. Manaf was not prepared to pay the money and he made oral complaint to K. Krishna Pillai (PW-12), Deputy Superintendent working in the Vigilance Unit, Thiruvanathapuram. The oral complaint made by Manaf was reduced in writing (Ext. P-20). PW-12 sent a requisition to the Director, State Institute of Education seeking assistance of two persons to act as independent witnesses. K.Krishnan Kutty (PW-1) and A.S. Abdul Rahim (PW-2) were deputed accordingly. A pre-trap Mahazar (Exh.P-1) was drawn after explaining the details of the trap and the characteristics of phenolphthalein powder as well as its use ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ublic servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or government company referred to in clause ) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. 6. Section 13 (1)(d) and (2) reads - 13. Criminal misconduct by a public servant. ; (1) A public servant is said to commit the offence of criminal misconduct, - (a) ....... (b) ....... (c) ....... (d) if, he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a primary requisite for an offence under Section 5(1)(d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either acceptance or obtainment . 10. The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established. 11. The core question that must be answered by us in this appeal is: whether there is sufficient legal evidence on record to bring home the guilt of the appellant for the offence under Sections 7 and 13(1)(d) read with 13(2)? 12. Pertinently, Manaf (complainant) has not been tendered in evidence by the prosecution. PW-12 (IO) in his entire deposition has not stated a word as to why Manaf was not examined or why it was not possible to tender him in evidence. In the absence of examination of the complainant, there is no substantive evidence to prove the factum of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter of fact, the Special Judge as well as the High Court heavily relied upon the deposition of PW-10 in support of the prosecution case. We were taken through the evidence of PW-10 and, in our considered view, his evidence suffers from serious infirmities. The Special Judge as well as the High court were not even clear about the place where PW-10 has positioned himself. He was not within the hearing range that he could hear the conversation that is said to have taken place between the complainant and the appellant. The defence of the appellant was that the complainant attempted to thrust the currency notes into his pocket. PW-10 stated that the currency notes (M.O. 1 series) were handed over by the complainant and accepted by the appellant through the counter/window but admittedly the complainant was found inside the office room when PW-12 reached. If the amount had already been handed over by the complainant to the appellant through the counter/window, where was an occasion for the complainant to be inside the office room where the appellant was said to be sitting. This casts serious doubt about the prosecution case and, more particularly, the evidence of PW-10 that the amount was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under Section 12 or under clause (b) of Section 14, it is proved that any gratification (other than legal remuneration ) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn. 22. Sub-Section (3) is a non-obstante clause . It provides that where the gratification is trivial and the Court is of opinion that no inferenc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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