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TMI Blog2015 (1) TMI 1424X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to the acceptance of illegal gratification from the complainant PW2, lies on the prosecution - In the present case, as has been rightly held by the High Court, there is no demand for the illegal gratification on the part of the appellant under Section 7 of the Act. Therefore, in our view, the question of acceptance of illegal gratification from the complainant under the provision of Section 13(1)(d) of the Act also does not arise. The High Court on re-appreciation of evidence on record has held that the demand alleged to have been made by the appellant from the complainant PW2, was not proved and that part of the conviction and sentence was rightly set aside in the impugned judgment. However, the High Court has erroneously affirmed the conviction for the alleged offence under Section 13(1)(d) read with Section 13(2) of the Act, although as per law, demand by the appellant under Section 7 of the Act, should have been proved to sustain the charge under Section 13(1)(d) of the Act. On a careful perusal of the entire evidence on record along with the statement of the prosecution witnesses, we have to hold that the prosecution has failed to satisfy us beyond all reasonable doubt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e money. It is the case of the prosecution that when PW2 approached the police station on 09.12.1998, to get back his belongings, the station writer demanded an amount of ₹ 1500/- as bribe for returning the articles which were seized by the police. PW2 approached PW6, the Deputy Superintendent of Police, Vigilance and Anti- Corruption Bureau, Special Investigation Unit, Thiruvanathapuram and gave a First Information Statement, upon which an F.I.R. was registered against the appellant. Thereafter, a trap was arranged by PW6 and the appellant was arrested for the offences punishable under Sections 7 and 13(1) (d) of the Act. The Investigation Officer after completing all the formalities filed the final report before the Special Judge after framing the charges against the appellant. Several witnesses were examined and various documents were produced as evidence by the prosecution in support of the charges against the appellant. The learned Special Judge on appreciation of the evidence on record found that the appellant was guilty of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Act and thereby he had convicted and sentenced him with 3 ye ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot;station writer" of the Fort Police Station, who had demanded the bribe from him for the return of the seized articles to him. It is further stated that PW4, who is the Sub-Inspector of the Fort Police Station had deposed that there was an "additional station writer" named Ajith in the police station, which was not considered by the courts below while recording the findings of the guilt of the appellant on the charges framed against him. It has been further contended by the learned counsel on behalf of the appellant that as per the complaint, ₹ 1500/- was allegedly demanded by the appellant as bribe money from the complainant. However, the money allegedly paid and recovered from the appellant was only ₹ 200/-. Hence, there is a huge disparity between the money allegedly demanded and paid to the appellant by the complainant. Further, it is contended that there existed several contradictions in the deposition of the other prosecution witnesses, particularly, PW1 and PW2, who are the star witnesses of the prosecution case, as they did not subscribe to the prosecution version of the story at all. It has been further contended that the prosecution had only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade against the appellant. It has been continuously held by this Court in a catena of cases after interpretation of the provisions of Sections 7 and 13(1)(d) of the Act that the demand of illegal gratification by the accused is the sine qua non for constituting an offence under the provisions of the Act. Thus, the burden to prove the accusation against the appellant for the offence punishable under Section 13(1)(d) of the Act with regard to the acceptance of illegal gratification from the complainant PW2, lies on the prosecution. In the present case, as has been rightly held by the High Court, there is no demand for the illegal gratification on the part of the appellant under Section 7 of the Act. Therefore, in our view, the question of acceptance of illegal gratification from the complainant under the provision of Section 13(1)(d) of the Act also does not arise. The learned Special Judge has come to the erroneous conclusion that the appellant had received the money and therefore he had recorded the finding that there was demand and acceptance of the bribe money on the part of the appellant and convicted and sentenced the appellant. However, the High Court on re-appreciation of ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established" (emphasis laid by this Court) Now, coming to the legality of the conviction of the appellant underSection 13(2) of the Act by the High Court in its judgment, the same cannot be allowed to sustain in law, as the prosecution has failed to prove the demand of illegal gratification made by the appellant from the complainant and acceptance of the bribe money by the appellant. Further, the phenolphthalein test cannot be said to be a conclusive proof against the appellant, as the colour of t ..... 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