Judgment : T. MATHIVANAN, J. 1. This memorandum of grounds of criminal appeal is filed against the judgment dated 25.5.2004 and made in C.C. No. 16 of 2003 on the file of the Learned II Additional District Judge (CBI Cases) Coimbatore finding the appellant guilty under Sections 7 and 13 Sections 7 and 13 (2) read with 13(1) (d) of Prevention of Corruption Act 1988, convicting thereunder and sentencing to suffer 6 months of rigorous imprisonment under Section 7 and to pay a fine of Rs. 100/-in default to suffer two weeks of rigorous imprisonment, and sentencing to suffer 12 months (1 year) of rigorous imprisonment and also to pay a sum of Rs. 1,000/-in default to suffer 2 months of rigorous imprisonment. The sentences were directed to run concurrently and the period of incarceration undergone by the appellant till the date of judgment was also directed to be given set off under Section 428 Cr.P.C. The total fine amount of Rs. 1,400/- was paid on receipt. 2. The appellant during March 2002, was employed as telephone mechanic at Palladam, Coimbatore District and as such he is a public servant. That on 10.3.2001 and 26.3.2002 he had demanded a sum of Rs. 400/- as illegal gratification other than legal remuneration from P.W.2, Janardhanan, for effecting the telephone line through, which was connected on 10.3.2002. That on 27.3.2002, he had directly demanded and accepted the bribe of Rs. 400/- from P.W.2 as motive or reward for the above said work. Hence, P.W.10 Mr. J.I.Lurdus Anandan, Inspector of Police attached to ACB/CBI, Chennai had laid a final report against the appellant on 19.6.2003 before the Learned II Additional District and Sessions Judge (CBI Cases), Coimbatore. 3. After taking cognizance of the offences and after furnishing copies to the appellant as required under Section 207 Cr.P.C, the learned trial judge had framed two charges; 1. Under Section 7 and; 2. Under Section 13(2) read with 13(1)(d) of Prevention of Corruption Act 1988. 4. When the ingredients of the charges were explained and questioned the appellant had pleaded innocent and claimed to be tried and therefore, he was put on trial. 5. The prosecuting agency in order to establish it’s case had totally examined 10 witnesses and during the course of their examination Exhibit P-I to P27 and the material objects ranging from M.O.1 to M.O.5 were marked. 6. 5. The prosecuting agency in order to establish it’s case had totally examined 10 witnesses and during the course of their examination Exhibit P-I to P27 and the material objects ranging from M.O.1 to M.O.5 were marked. 6. The gravamen of the prosecution case is this; 6.1. P.W.2 Mr. Janardhanam is residing in Door No. 881, Mahalaxmi Nagar, Tirupur Road, Palladam, Coimbatore District. He had been occupying that house as a, tenant. In order to obtain a telephone connection, he had made an application under Exhibit P2. In pursuant to the demand notice, he had deposited a sum of Rs. 2,000/- on 14.12.2001, Then his name was placed in the waiting list under serial No.4186. That on 08.3.2002, the appellant, Sunder and P.W.7, Nagaraj had fixed a drop wire from the telephone post standing near the house of P.W.2. On 10.3.2002, they both had brought the telephone instrument and installed in his house. Since ringtone was not received on that day, the appellant had demanded a sum of Rs. 400/- as bribe for which P.W.2 told him that he would pay the amount on 20.3.2002. However he was not willing to pay bribe. But on the evening of 10.3.2002, the telephone line was effected through and this fact was intimated to P.W.2 by the appellant through his phone after informing that the telephone No.viz., 525074 was allotted to him and he had also reminded about the bribe amount of Rs. 400/- and had given his residential phone number also. 6.2. On 23.3.2002, P.W.2 had rung up to CBI office from his telephone and informed about the demand of bribe as well as his unwillingness. On 26.3.2002, at about 8.30am, the appellant had contacted P.W.2 through phone and informed that he would come to his house at 8.00am on the next day and receive the amount of Rs. 400/- and he had also instructed P.W.2 to keep the amount ready and if the amount was not given then the telephone connection would be disconnected. 6.3. At about 10.30 am., on the above said date, when he was on the way to Tirupur, P.W.2 had contacted the Superintendent of Police attached to CBI at Chennai and informed him about the demand of bribe and he had also expressed his willingness to lodge a complaint. 6.3. At about 10.30 am., on the above said date, when he was on the way to Tirupur, P.W.2 had contacted the Superintendent of Police attached to CBI at Chennai and informed him about the demand of bribe and he had also expressed his willingness to lodge a complaint. On hearing this, the Superintendent of Police, CBI Chennai had informed him that on the next day i.e., on 27.3.2002, two Police Inspectors would be visiting his house and further instructed to present a written complaint before them. 6.4. That on 27.3.2002, while P.W.5 Inspector of Police attached to CBI/ACB, Chennai was camping at Coimbatore, one Suresh kumar, Inspector of Police, CBI/ACB, Chennai had contacted him over phone from Chennai and informed that the Superintendent of Police, CBI/ACB Chennai had received a telephone message from P.W.2 Janardhanam of Palladam, stating that a public servant by name Mr. Sunder working in Palladam Telephone Exchange had demanded an illegal gratification of Rs. 400/- as reward for giving new telephone connection at his residence. The said Suresh Kumar, Inspector of Police had also informed P.W.5 that the said Mr. Sunder (appellant herein) would be coming to the residence of P.W.2 on the morning of 27.3.2002 to collect the bribe and therefore, he had informed P.W.5 to make necessary arrangements at Coimbatore and he had also told that he would be reaching at Coimbatore with a team in the early morning of 27.3.2002. Accordingly, after satisfying the genuineness of the complaint P.W.5 had made arrangements of the witnesses from NTC Coimbatore. 6.5. On 27.3.2002 early morning Mr. Suresh Kumar Inspector, Mr. Sureshbabu and Mr. Sivakumar, Police Constables CBI/ACB, Chennai came to Coimbatore with the trap kit. At about 5.00 a.m., in the morning P.W.3 Mr. M.S. Balachandran and one Mr. Parameshwaran Officers on NTC had reported before P.W.5 at Cheran Palace, Coimbatore with an Ambassador Car belonging to NTC Coimbatore. All the members of the team of P.W.5, had proceeded to Palladam at 5.30 a.m., and at about 6.15 a.m., and they had reached the house of P.W.2 wherein P.W.2 had handed over a written complaint in duplicate to P.W.5, addressed to Superintendent of Police, CBI/ACB Chennai. 6.6. The original complaint was marked as Exhibit P-3. All the members of the team of P.W.5, had proceeded to Palladam at 5.30 a.m., and at about 6.15 a.m., and they had reached the house of P.W.2 wherein P.W.2 had handed over a written complaint in duplicate to P.W.5, addressed to Superintendent of Police, CBI/ACB Chennai. 6.6. The original complaint was marked as Exhibit P-3. Thereafter, P.W.5 had shown the complaint to the witnesses and prepared a forwarding letter addressed to Superintendent of Police, CBI/ACB Chennai and put it in a sealed cover along with the original complaint and sent it through Mr. Shiva Kumar, Police Constable. The forwarding letter was marked as Exhibit P-9. 6.7. At about 7.00 a.m., on 27.3.2002, the members of the team had assembled in the side room of the residence of P.W.2 for entrustment mahazar proceedings. After the introduction of the complainant to the independent witnesses visa versa, the copy of the complaint was read out to the team. The independent witnesses had also satisfied themselves with the genuineness of the complaint and thereafter, P.W.2 had produced Rs. 400 in the denomination of Rs. 100 and the serial numbers of the notes were recorded. Then sodium carbonate phenolphthalein test was demonstrated on the currency notes and P.W.5 had explained the intrinsic value and the significance of the test to the trap team members. Then after keeping the tainted currency notes in the left side shirt pocket of P.W.2 as per the direction given by P.W.5, he along with other witnesses had washed their hands with soap and water. P.W.2 was also instructed not to touch the currency notes unless and otherwise, the appellant Sunder demands for the same. 6.8. P.W.5 had also prepared the entrustment mahazar under Exhibit P-4 and all the witnesses had signed in the said mahazar. Then P.W.5 was instructed to give a signal by wiping his face thrice with handkerchief, after the appellant Sunder demands and accepts the bribe amount from him. P.W.3, independent witness Mr. S.S. Balachandran was also directed to watch the happenings once the appellant comes to the residence of P.W.2. Further the witnesses were instructed to take their position in the house of P.W.2 at the time of trap proceedings. 6.9. P.W.3 was asked to place himself near the door which was opening to the sitting room where the telephone was kept. The other independent witnesses Mr. Further the witnesses were instructed to take their position in the house of P.W.2 at the time of trap proceedings. 6.9. P.W.3 was asked to place himself near the door which was opening to the sitting room where the telephone was kept. The other independent witnesses Mr. Parameshwaran and P.W.5 were stayed in the side room along with P.W.3. The Inspector of Police, Mr. Suresh Kumar and other police constables were asked to take position in the open ground opposite to the residence of P.W.2. 6.10. At about 8.00 a.m., on that date viz., 27.3.2002, a person wearing Khakee pant and shirt came to P.W.2’s house in a TVS Motorcycle. After parking the vehicle in front of the gate, he walked into the residence of P.W.2 and entered the hall where the telephone instrument was kept. Then the appellant had enquired P.W.2 as to how the telephone was working. P.W.2 had also enquired about the details of the system of locking and unlocking the STD facility. For that the appellant had told that a separate application was available in their office and asked P.W.2 to come and collect the same. Immediately, the appellant had asked P.W.2 to give the money demanded. On demand P.W.2 had also taken out the amount from his pocket and handed over four hundred rupee currency notes to the appellant. The appellant had received the tainted currency notes in his right hand and counted the same by using both hands. Thereafter he had put the tainted currency notes in the left pocket of his shirt. After receiving the amount the appellant had told P.W.2 that he was moving immediately, and thereafter, P.W.2 had given the prearranged signal to P.W.5. 6.11. On noticing the signal P.W.5 had alerted the other team members and rushed to the hall. On arrival, the appellant was about to leave the hall. Then P.W.5 had introduced himself to the appellant. P.W.2 had also introduced the appellant to P.W.5 that he was Mr. Sunder. On hearing this the appellant was perplexed and nervous and he was not able to answer. Then the appellant was asked to raise his both hands and informed that he was placed under arrest for having received the illegal gratification. P.W.2 had also introduced the appellant to P.W.5 that he was Mr. Sunder. On hearing this the appellant was perplexed and nervous and he was not able to answer. Then the appellant was asked to raise his both hands and informed that he was placed under arrest for having received the illegal gratification. On the instruction of P.W.5, one Police Constable Sureshbabu had prepared sodium carbonate phenolphthalein solution and then the appellants right and left hand fingers as well as the left side pocket of his shirt were subjected to test and the test was also proved positive. Prior to that on the request made by P.W.5, the appellant had removed his shirt and handed over to him and P.W.2 had alternatively given his T-Shirt to the appellant to wear. 6.12. The bottles containing the solutions were labeled as A, B, C and D and marked as M.O’s 2 to 5. The tainted currencies viz., four hundred rupee currency notes were marked as M.O.1 series. Previously the numbers of the tainted currency notes were compared with the numbers noted in Exhibit P-4 and found tallied. Then P.W.5 had prepared a recovery mahazar under Exhibit P-5. All the witnesses and the appellant had signed in Exhibit P-5 after receiving a copy on acknowledgment. 6.13. Then the personal search of team members were carried out and the items were tallied with the items mentioned in the entrustment mahazar. The appellant was subsequently released on bail. All the proceedings were completed at 11.00 a.m., on 27.3.2002. Thereafter, as per the instruction given by the Superintendent of Police, CBI, Chennai all the records were entrusted with P.W.10 Inspector of Police, CBI/ACB Chennai for investigation. On 28.3.2002, the appellant had handed over the T-Shirt to P.W.7 and asked him to entrust with P.W.2. P.W.7 had been to P.W.2’s house, and since he was not available, the T-Shirt was handed over to his wife. 6.14. That on 27.3.2002, the Superintendent of Police attached to CBI/ACB Chennai had handed over the covering letter Exhibit P-9 along with the complaint under Exhibit P-3, and instructed P.W.10 to register a case. Based on the complaint under Exhibit P3, P.W.10 had registered a case in R.C. No. 12A/2002 against the appellant under Section 7 of Prevention of Corruption Act 1988. The printed first information report was marked as Exhibit P-24. Based on the complaint under Exhibit P3, P.W.10 had registered a case in R.C. No. 12A/2002 against the appellant under Section 7 of Prevention of Corruption Act 1988. The printed first information report was marked as Exhibit P-24. On 20.9.2002, P.W.2 had collected the documents from the trap laying officer i.e., P.W.5 Mr. T.P. Ananthakrishnan along with the other material objects. He had also sent the material objects to the Court for being sent to chemical examination. Then he had collected Exhibits P-18 and P-19 and the copy of the log book maintained by National Textile Corporation, Coimbatore, to show that the NTC Car was used on the date of trap by the CBI, Chennai. A rough sketch under Exhibit P-25, with regard to the physical features of the house of P.W.2 was drawn. He had examined the witnesses and collected all the documents. 6.15. On 29.11.2002 P.W.1, Additional Engineer Rural, Avinashi who was in Additional charge of Palladam Rural Division during the year 2002 had issued a sanction order to launch prosecution against the appellant. Exhibit P-I is the sanction order. P.W.10 had also examined some of the material witnesses and had collected the chemical analysis report from the Forensic Sciences Laboratory under Exhibit P-27 and after the completion of his investigation he had laid a final report on 19.6.2003 against the appellant under Sections 7 and 13 Sections 7 and 13 (2) read with 13(1)(d) of Prevention of Corruption Act 1988. 6.16. With the evidence of P.W.10, the prosecution has closed its side. When the incriminating circumstances arising out of the testimonies of the prosecution witnesses were read over and explained to the appellant by the trial Court during the course of 313 proceedings, the appellant had replied that he was innocent and that the case was foisted against him. He had also submitted a written statement, and the same was received and recorded by the learned trial Judge. On appraising all the evidences both oral and documentary and on hearing the submissions made on behalf of both sides, the learned trial judge had found the appellant guilty under Sections 7 and 13 Sections 7 and 13 (2) read with 13(1) (d) of The Prevention of Corruption Act 1988, convicted thereunder and sentences as aforestated. 7. Heard Mr. S. Gobinath, senior advocate ‘the learned counsel for the appellant and Mr. N. Chandrasekaran, Special Public Prosecutor for CBI Cases. 7. Heard Mr. S. Gobinath, senior advocate ‘the learned counsel for the appellant and Mr. N. Chandrasekaran, Special Public Prosecutor for CBI Cases. Value of Exhibit P-24 First Information Report. 8. As it revealed from the evidence of P.W.1, the first demand was said to have been made by the appellant on 10.3.2002, but he was not willing to pay the bribe. On the same date itself the telephone was installed and the number viz., 525074 was allotted to the appellant. In the evening of 10.3.2002, the allotted telephone number was informed to P.W.2 by the appellant and reminded over phone about the amount demanded and he had also disclosed his residential phone number to P.W.2. After passing of 13 days i.e., on 23.3.2002 for the first time P.W.2 had informed the CBI office through phone about the demanding of bribe and he had also informed that he was intending to lodge a complaint to that effect. 9. That on.26.3.2002 at about 10.30am., for the second time P.W.2 had contacted the Superintendent of Police attached to CBI/ACB Chennai and informed him that he was intending to lodge a complaint in respect of the demand, of bribe. For that he was informed by the Superintendent of Police that two Inspectors of Police would be visiting his house on the next day morning and instructed to lodge a complaint before them. 10. It is significant note here that P.W.2 has deposed that when he had contacted the CBI Office on 23.3.2002 the Superintendent of Police was not available, however, he was very well available at about 10.30 a.m., on 26.3.2002 when he had contacted the CBI Office for the second time. It shows that the information regarding to demanding of bribe by the appellant was given by P.W.2 over phone to the office of the Superintendent of Police for the first time on 23.3.2002 and for the second time on 26.3.2002. 11. In this connection the learned counsel for the appellant has contended that the information given by P.W.2 to the office of CBI was the earliest information with regard to the demanding of bribe by the appellant and his information should have been reduced in to writing by the recipient of the phone message and necessarily a case should have been registered based on his information. It is also significant to note here that though the Superintendent of Police who is the head of the office of CBI/ACB Chennai had received the information from P.W.2, he had not chosen to reduce the information into writing and to register a case. Instead he had instructed P.W.2 to lodge a written complaint to the Inspector of Police, who would visit his house on the next day morning i.e., on 27.3.2002. In this connection P.W.5 would state that on 26.3.2002 when he was camping at Coimbatore, one Mr. Suresh Kumar had contacted him through phone and informed him that he was instructed by the Superintendent of Police, CBI Chennai to convey a telephonic message received from P.W.2 saying that the appellant Mr. Sunder, who was working in Palladam Telephone Exchange had demanded an illegal gratification of Rs. 400/-from P.W.2 and that the appellant was coming to the resident of P.W.2 on the morning of 27.3.2002, to collect the bribe from P.W.2 and therefore, P.W.5 was instructed to organise a trap and that he would be reaching at Coimbatore with a team in the early morning of 27.3.2002. 12. Unfortunately, the said Suresh Kumar, Inspector of Police has not been examined in this case as a witness to substantiate this fact. Then it transpires from the evidence of P.W.5 that he had verified the genuineness of the complaint and made arrangement of witnesses from NTC Coimbatore viz., P.W.3 one Mr. Balachandran Additional Chief Vigilance Officer Coimbatore, and one Mr. Parameshwaran. It also transpires that the said Suresh Kumar Inspector of Police and one Sureshbabu and Shiva Kumar police constable of CBI, had reached Coimbatore along with a trap kit. At the same time P.W.2 Balachandran, and the witness Paramashivam had reported before P.W.5 at Cheran Palace, Coimbatore with an Ambassador Car belonging to NTC Coimbatore. 13. All these facts would go to show that based on the receipt of a telephonic message from P.W.2, the law was set in motion without actually having registered a case as required under Section 154 of Code of Criminal Procedure. 14. It may be quiet relevant to note here that prior to the pre-trap proceedings, as evident from the chief examination of P.W.2, he had presented a written complaint to P.W.5 at 6.00 a.m., on the same date i.e., on 27.3.2002. 14. It may be quiet relevant to note here that prior to the pre-trap proceedings, as evident from the chief examination of P.W.2, he had presented a written complaint to P.W.5 at 6.00 a.m., on the same date i.e., on 27.3.2002. In this connection P.W.5 would state that he had reached the residence of P.W.2 at 6.15 a.m., on 27.3.2002 along with his trap team wherein P.W.2 had handed over a written complaint Exhibit P-3, addressed to Superintendent of Police, CBI/ACB, Chennai. That complaint was marked under Exhibit P-3. On receipt of the complaint under Exhibit P-3, P.W.5 had prepared a forwarding letter addressed to Superintendent of Police, CBI/ACB Chennai and sent it through one Shivakumar, Police Constable in a sealed cover. But the prosecuting agency has not chosen to examine the said Police Constable, Shivakumar for the reasons best known to them. 15. In the meanwhile, the appellant was arrested and all the proceedings were completed at 11.00 a.m., on 27.3.2002. The recovery mahazar which was marked under Exhibit P-5 would go to substantiate these facts. 16. It is pertinent to note here that based on the complaint, Exhibit P-3, a case in Crime No. RC/MA/1/2002/A/2012 was registered by P.W.10 Inspector of Police CBI/ACB, Chennai under Section 7 of Prevention of Corruption Act 1988 on 27.3.2002 at 8.00pm. The printed first information report was marked as Exhibit P-24 and it is seen from Exhibit P-24 that the first information report was recorded under Section 154 Cr.P.C. 17. Though the 1988, is a self governed Act, it takes the assistance of the Code of Criminal Procedure, in criminal proceedings. 18. Section 154(1) of the Code of Criminal Procedure enacts as follows; ‘‘Section 154(1) - Every information relating to the commission of a cognizable offence, if given orally to an officer in charge of a police station, shall be reduced to writing by him or under his direction, and be read over to the informants and every such information, whether given in writing or reduced to writing as aforesaid, shall be signed by the person giving it, and the substance thereof shall be entered in a book to be kept by such officer in such form as the State Government may prescribe in this behalf.” 19. The formalities envisaged under Section 154(1) have not been followed in this case. The formalities envisaged under Section 154(1) have not been followed in this case. In this connection it would be more relevant to refer the evidence of P.W.10 who had registered and taken up the case for investigation. 20. It is obvious to note here that prior to the registration of the case i.e., prior to the registeration of Exhibit P-24, first information report, everything was completed and the accused was even arrested and also released on bail then what else is remaining to be investigated further. 21. P.W.10 says that on 27.3.2002, the Superintendent of Police, Chennai had instructed him to register a case in R.C. No. 12A/2002 and handed over a covering letter and the complaint under Exhibit P-9 and P3 respectively and based on the complaint he registered the first information report against the appellant. The testimony of P.W.10 seems to be some what peculiar in which he has stated that the Superintendent of Police had given the crime number to register the case. It is usual practice that on receipt of a complaint, the crime number would be given only at the time of registration of the case. But in this case, as revealed from the evidence of P.W.10, the Superintendent of Police had instructed P.W.10 to register the case in R.C. No. 12A/2002. 22. It is palpably clear from the evidence of P.W.10 as well as from Exhibit P-24, first information report that the case was registered at 8.00 p.m., on 27.3.2002. It is also manifest from the evidence of P.W.5 as well as Exhibit P-5 recovery mahazar that all the trap proceedings were completed at 11.00 a.m., on 27.3.2002. From the above context it is brought into light that the first information report was registered 9 hours after the completion of pre-trap proceedings under Exhibit P-4 and post trap proceedings under Exhibit P-5. As adumbrated supra, the accused was also arrested and released on bail by P.W.5. 23. In this connection this Court finds that it may be relevant to refer the decision in State of Kerala v. Samuel AIR 1961 Ker 99 . In this case a full bench comprising their Lordships Hon’ble Tr. Justice M.A. Ansari the Chief Justice, Hon’ble Tr. Justice Anna Chandy and Hon’ble Tr. Justice Tr. 23. In this connection this Court finds that it may be relevant to refer the decision in State of Kerala v. Samuel AIR 1961 Ker 99 . In this case a full bench comprising their Lordships Hon’ble Tr. Justice M.A. Ansari the Chief Justice, Hon’ble Tr. Justice Anna Chandy and Hon’ble Tr. Justice Tr. GovindaMenon, has very well explained the scope and applicability of the proviso to Sections 154 , 162 Sections 154, 162 and 173 of Cr.P.C. They have also defined as to what amounts to first information report and equally explained as to when an investigation starts. It runs as under; “Whether or not particular statement would constitute the first information report in a case is a question of fact and would depend on the circumstances of that case. However, it can be stated as a general principle that it is not every piece of information however vague, indefinite and unauthenticated. It may be, that should be recorded as the first information report for the sole reason that such information was the first, in point of time to be received by the police regarding the commission of an offence. On the other hand it is equally clear that to permit a preliminary enquiry before recording the first information is to diminish if not destroy the value of the first information report itself. It has also been held that the report filed by the police amounted to a charge sheet and not first information report affording a starting point for a fresh investigation.” 24. While coming to this conclusion their Lordships have also referred the decision in H.N. Rishbud v. State of Delhi AIR 1955 SC 196 : (1955) 1 MLJ 173. 25. On coming to the instant case on hand even prior to the registration of the case, P.W.5 had completed everything with the assistance of his trap members as well as with the assistance of P.W.3 and other official witnesses. Under this circumstance, the first information report under Exhibit P-4 is amounted to be a charge sheet and not a first information report affording a starting point for a fresh investigation as held in State of Kerala v. Samuel (supra). 26. Before we go in to the merits and demerits of the case, it may be appropriate to quote the following Judicial pronouncements of the Supreme Court of India. 26. Before we go in to the merits and demerits of the case, it may be appropriate to quote the following Judicial pronouncements of the Supreme Court of India. (a) No person can be convicted on pure moral conviction. A case can be said to be proved only when there is a certain and explicit evidence. (b) Gravity of offences as such cannot in any way be a circumstance that can tilt when prosecution evidence is not acceptable. (c) Mere heinous or gruesome nature of crime is not enough to punish the accused and mere suspicion however it-may be strong cannot take the place of legal proof. An accused cannot be convicted based on conjectures and surmises. (d) Assumption or presumption cannot be a ground for conviction in a criminal trial. (e) The prosecution case should rest on its own strength but not on the absence of explanation or plausible defence by the accused. (f) The defence case is required to be proved only in preponderance of probability. 27. The above mentioned observations have been made in the following decisions: (1) SharadBirchand Sarda v. State of Maharashtra AIR 1984 SC 1622 : 1984 SCC (Cr) 487 : LNIND 1984 SC 179 (2) NirmalKumar v. State of U.P. AIR 1992 SC 1131 : 1993 Supp. (1) SCC 289 : LNIND 1992 SC 173 (3) AshishBatham v. State of M.P. AIR 2002 SC 3206 : (2002 SCC (Crl.) 1718 : LNIND 2002 SC 556 (4) Arvindsinghv. State of Bihar AIR 2001 SC 2124 : 2001 SCC (Crl.) 1148 : LNIND 2001 SC 1078 (5) Toransinghv. State of M.P. AIR 2002 SC 2807 : 2002 SCC (Crl.) 1377 : LNIND 2002 SC 468 : (2002) 1 MLJ (Crl) 1074 28. In this back drop let us venture to delve the invisible facts hidden in the testimonies of the prosecution witnesses. 29. From the testimonies of P.W.10, Mr. J.I. Lurdus Anandan, this Court is able to visualise the fact that he himself had registered the case and he had also taken up the case for investigation. According to him, on 29.3.2002, he had collected the documents under Exhibits P-4 and P-5 viz., entrustment mahazar and seizure mahazar respectively and conducted further investigation. 30. On 4.6.2002, he had seized Exhibit P-18 and P-19 copies of the log book maintained in National Textile Corporation and prepared rough sketch under Exhibit P25. According to him, on 29.3.2002, he had collected the documents under Exhibits P-4 and P-5 viz., entrustment mahazar and seizure mahazar respectively and conducted further investigation. 30. On 4.6.2002, he had seized Exhibit P-18 and P-19 copies of the log book maintained in National Textile Corporation and prepared rough sketch under Exhibit P25. On 5.6.2002, he had seized Exhibit P-2 application form and Exhibits P-6 and P-7 demand notice as well as Exhibit P-8. On 29.7.2002, he had received sanction order under Exhibit P-1 (without date) from P.W.1. He had also examined the witnesses P.W.1 to P.W.9 and recorded their statements and ultimately filed a final report on 19.6.2003. 31. With regard to the role played by P.W.10, this Court would like to place it on record that the investigating officer is not expected to play a dual role. 32. P.W.10 cannot be a complainant as well as the investigating officer having registered the case with regard to the commission of an offence. P.W.10 cannot take the role of an investigating officer. If that be so the investigation would not be fair, impartial and proper. 33. In support of this proposition of law this Court places reliance upon the decision in BhagwanSingh v. State of Rajasthan AIR 1976 SC 985 : 1975 SCC (Cr) 737 : LNIND 1975 SC 274 . In this case the effect of investigation by the complainant police officer himself has very well been explained by a Full Bench of Hon’ble Supreme Court comprising their Lordships Hon’ble Tr. Justice Y.V. Chandra Chud, Hon’ble Tr. Justice P.N. Bhagawati and Hon’ble Tr. Justice R.S. Sarkaria. The Full Bench has held that; “investigation by a Head Constable who was himself the person to whom the bribe was alleged to have been offered and who lodged the first information Report as informant or complainant. This is an infirmity which is bound to reflect on the credibility of the prosecution case.” 34. In Singaraveluv. State the sub-inspector of police after lodging the complaint, and registered the first information report, has himself taken the investigation. After the completion of the information, he had also filed a charge sheet and given the evidence to that effect before the trial Court. In Singaraveluv. State the sub-inspector of police after lodging the complaint, and registered the first information report, has himself taken the investigation. After the completion of the information, he had also filed a charge sheet and given the evidence to that effect before the trial Court. Under these circumstances it has been held that; “The act of the said sub-inspector of police is illegal and not in procedure.” It has also been held that; “P.W.1 the complainant himself could not be an investigating officer and in any event, it is an infirmity which is bound to reflect on the credibility of the prosecution case and the benefit of doubt is therefore, to be given to the accused.” 35. In State by Public Prosecutor v. Krishnasamy Iyer and Others 1998 (1) MWN (Crl.) 231, the trial Court has acquitted the accused on the ground that the very same police officer who has filed the first information report has conducted the investigation. 36. In fact there is no prohibition for a police officer to lay the first information report and to investigate the case himself and to file a final report under Section 173(2) Cr.P.C. 37. As a matter of healthy practice, it would be condusive to fair and impartial investigation for the complainant himself to be an investigating officer. Therefore, as the ratio laid down by the Supreme Court in MeghaSingh v. State of Haryana AIR 1995 SC 2339 : 1997 SCC (Crl.) 267 : LNIND 1995 SC 224 “in order to avoid repetition of any such error which would ultimately result in serious offenders going out of the clutches of law and to see it that in the event of any police officer himself being . required to give the first information report, it is necessary to depute some other official to investigate into the offence and to file a charge sheet.” 38. Whether the charges under Sections 7 and 13 Sections 7 and 13 (2) read with 13(1) (d) of Prevention of Corruption Act 1988, have been proved by the prosecuting agency as against the appellant? 39. As observed by this Court in N. Thangarajulu and Another v. State by Inspector of Police, Vigilance and Anti Corruption Wing, Tanjore District 2001 (2) Madras Weekly Notes (Crl.) 39 : (2001) 1 MLJ (Crl) 1050, the following are the essential ingredients to be established by the prosecution. 1. Demand 2. 39. As observed by this Court in N. Thangarajulu and Another v. State by Inspector of Police, Vigilance and Anti Corruption Wing, Tanjore District 2001 (2) Madras Weekly Notes (Crl.) 39 : (2001) 1 MLJ (Crl) 1050, the following are the essential ingredients to be established by the prosecution. 1. Demand 2. Payment 3. Recovery Unless these three ingredients are established by the prosecuting agency, the suspect who is being accused of the charges has to be necessarily discharged. 40. In so far as the present case on- hand is concerned as revealed from the testimonies of P.W.2, the first demand was said to have been made by the appellant on 10.3.2002. In this regard he would state that on 10.3.2002, the appellant came to his residence, along with P.W.7 Nagaraj with the telephone instrument. When P.W.7 had left the house, the appellant had demanded a sum of Rs. 400/- to get through the line. On coming to the evidence of P.W.7 he would state that after the installation of the telephone instrument in the house of P.W.2 he had first left the house and the appellant was talking with P.W.2. But he did not know as to what it was transpired between the appellant and P.W.2. It is also revealed from the evidence of P.W.2 that on the evening of 10.3.2002, the appellant had rung him up and informed that the telephone was functioning and that the number viz., 525074 was allotted to him and for the second time he had reminded the bribe amount of Rs. 400/- and he had also given his residential phone number. The demand made in the morning of 10.3.2002 as well as the reminder made in the evening was taken place between the appellant and P.W.2 and no one was aware of the demand. No such evidence is also available to ratify this fact. 41. For the third time as spoken to by P.W.2, the appellant had once again rung him up on 26.3.2002, at about 8.30 a.m., and told that on the next day at about 8.00 a.m., he would come to his residence to receive the amount of Rs. 400/-and to keep the amount ready. P.W.2 has also spoken to that the appellant had further told him that if the amount was not given the telephonic connection would be disconnected. 400/-and to keep the amount ready. P.W.2 has also spoken to that the appellant had further told him that if the amount was not given the telephonic connection would be disconnected. This conversation through phone was also taken place between the appellant and P.W.2 and no one was aware of it. P.W.1 who is the Divisional Engineer, who had accorded sanction order to launch prosecution against the appellant would depose in his cross examination that the telephone mechanic had no powers to disconnect or to give connections on his own. The complaint was in the language of English and at the time of giving the complaint the phone of the subscriber (P.W.2) was in working condition. It is also to be remembered that P.W.2 has spoken to that on 10.3.2001 evening the telephone connection was given to his house and the phone was also functioning. 42. Further P.W.4 has spoken to that on 23.3.2002 . he had contacted the CBI Office over phone from his house. Even in his cross examination also he has admitted this fact. He would further state in his cross examination that on 27.3.2002, the appellant had come to his house and given a telephone directory. He would further state that after 10.3.2002, the appellant had come to his house only on 27.3.2002 and checked about the functioning of the telephone and told that it was properly functioning. 43. Therefore, it is crystal clear that on the relevant date i.e., on 27.3.2002, the appellant had come to the residence of P.W.2, given a telephone directory, and handled the telephone, found it in proper working condition and he had also told P.W.2 that the telephone was properly functioning. He would go one step further and depose that the fact of handing over the telephone directory by the appellant was also known to the police officials, who were present in his house at that time. 44. P.W.2 has also ratified the fact that from the date of connection till 27.3.2002, the telephone was functioning properly. It is imperative on the part of this Court to refer the testimonies of other witnesses also. P.W.3 is said to be an independent witness and in the relevant period he was working as Additional Chief Vigilance Officer in the National Textiles Corporation Ltd., Coimbatore. P.W.5 had made him as a witness for the trap proceedings. It is imperative on the part of this Court to refer the testimonies of other witnesses also. P.W.3 is said to be an independent witness and in the relevant period he was working as Additional Chief Vigilance Officer in the National Textiles Corporation Ltd., Coimbatore. P.W.5 had made him as a witness for the trap proceedings. He would state that the appellant had enquired P.W.2 as to whether the phone was working properly? For which P.W.2 had replied that it was functioning. P.W.3 had also deposed in his cross examination that the telephone which was kept in the house of P.W.2 was working in good condition. P.W.5 Inspector of Police has also deposed in his cross-examination that he had not noticed as to when the appellant had handed over the telephone directory to P.W.2. He would state further that officially the appellant had no power either to disconnect or to connect the phone. 45. P.W.9, Sub Divisional Engineer Group at Solur would state in his cross-examination that “while issuing telephone directories to the phone mechanic, we will not mention the telephone number of the subscriber in the diary. The phone mechanic may give any directory to any subscriber.” He would state further that the subscribers telephone (P.W.2’s telephone) was working till he was working at Palladam. P.W.9 would further speak in his cross examination that neither he nor the appellant was having power either to provide new telephone connection or to disconnect it. 46. After referring the testimonies of P.Ws.2, 3, 5, 7 and 9 Mr. S. Gobinath, the learned counsel for the appellant would submit that when the telephone was functioning in good condition there was no need to demand money by the appellant. In order to support his contention he has placed reliance upon the decision in State v. K. Narasimhachari 2006 Crl.L.J. 518. In this case the Apex Court has held that the respondent was merely a recommending authority. He was neither the issuance authority nor was the outward clerk, also the said certificate was signed by final authority before the alleged demand of bribe by the accused. Under this circumstances the suspicion was arisen about the demand of bribe and hence, the acquittal of the accused was proper. 47. The learned counsel for the appellant has also placed reliance upon another decision in Ramakrishnanv. State 2006 (2) LW Crl. Under this circumstances the suspicion was arisen about the demand of bribe and hence, the acquittal of the accused was proper. 47. The learned counsel for the appellant has also placed reliance upon another decision in Ramakrishnanv. State 2006 (2) LW Crl. 965 : (2007) 1 MLJ (Crl) 430 . In this case this Court has held that; “Mere proof of demand and acceptance of money as illegal gratification will not be sufficient to establish the guilt of the accused. First and foremost ingredient to establish the guilt of the accused in a corruption case is to prove the receipt of money as an illegal gratification is the proof of demand made by the accused. Once the prosecution failed to prove the above said ingredient the entire prosecution case falls into the ground.” 48. The learned counsel for the appellant has also continued that the whole edifice of the prosecution case was shrouded with the shadow of doubt and in this connection he has made reference to Exhibit P-5, rough sketch which depicts the topography of the P.W.2’s house. He has also added that the house of the P.W.2 was comprising of a small hall and a small adjacent room at the left and a. kitchen at the right. The adjacent room measuring 8x8 feet and it was highly improbable that P.W.3, 5, and two other officials were hidden in that room and watched the proceedings without being noticed by the appellant. He would also submit that the dimension and topography of the room falsifies the entire prosecution case and it was made clear that the trap witnesses could not have witnessed the trap proceedings from the said room. 49. He would continue further that as spoken to by P.W.2, he was sitting along with P.W.3 in the hall of his house. Thereafter, P.W.3 had left and stood in the next room so as to enable him to hear the conversation which might be transpired between the appellant and P.W.2. He would submit further that P.W.2 and 3 were separated by an iron door and the door was also slightly opened. He has also added that P.W.5 and the other witness Parameswaran were hiding in a small room adjacent to the hall and P.W.3 had opened the door and stood near the door in order to watch the proceedings when P.W.2 was present in the hall. He has also added that P.W.5 and the other witness Parameswaran were hiding in a small room adjacent to the hall and P.W.3 had opened the door and stood near the door in order to watch the proceedings when P.W.2 was present in the hall. He would also submit that from the room where P.W.3 was standing, he was observing the proceedings through the small opening of the door and he had also seen that P.W.2 was conversing with the appellant. He was hearing the conversation but he had deposed that he did not remember as to whether the appellant had given telephone directory directly to P.W.2 or not. 50. While referring the evidence of P.W.5 he would submit that P.W.3 was asked by P.W.5 to place himself near the door, which was opened towards the sitting room where the telephone was kept. The witness Parameswaran and P.W.5 were also stayed back in that room along with P.W.3. P.W.5 has also spoken to that it was true that nothing was stated in Exhibit P-4 mahazar that there were two steel doors and there was a gap between them. He had also spoken that it was true that nothing was mentioned in Exhibit P-4 mahazar as to where the independent witness Parameswaran was sitting and it is true that nothing was mentioned regarding the location of the team members. 51. In this connection the learned counsel for the appellant has placed reliance upon the decision in TejBahadur Singh v. State AIR 1990 SC 431 : 1990 SCC Crl. 627. In this case it has been held that; “Accused’s conduct of visiting complainant’s house to collect bribe money about an hour before the appointed time and just after arrival of the trap party without being cautious of the suspicious surroundings also raising doubts. Happening of the incident of accepting bribe in a small room in complainant’s house without being apprehensive of presence of the trap party in the adjoining room separated only by a curtain also doubtful as in such a situation a sixth sense works so as to detect presence of another in such close surroundings. In these circumstances it was held, that the prosecution story is doubtful.” 52. In these circumstances it was held, that the prosecution story is doubtful.” 52. On coming to the instant case on hand, as has been revealed from the cross-examination of P.W.2, the phone was kept on the left side corner of the hall proximate to main entrance. P.W.2 says that he was not able to give correct account about the length of the hall. However, he would state that the length of the hall was 16 ft and breadth would be 10ft. Therefore, it is thus clear that the total measurement of the house would be 16 x 10 sq. ft. 53. On seeing Exhibit P-5 rough sketch the house of P.W.2 is consisting of three compartments. One small room, a hall and a kitchen. It is revealed from his evidence that at the time of trap, his wife was present in the kitchen but he would state that she did not know anything about the trap proceedings which is highly improbable. It is revealed from his evidence as well as from the testimonies of P.W.3 and P.W.5 that P.W.3 was standing near the door while P.W.5 and other witnesses were hiding themselves in the small room. Therefore, as rightly submitted by the learned counsel for the appellant, it is highly unbelievable that the whole incident was taken place without the knowledge of the wife of P.W.2. Virtually she should have been cited as witness on behalf of the prosecution to prove the fact that P.W.7 had handed over the T-Shirt of P.W.2 which was said to have been given by him under the direction of P.W.5, when the appellant’s shirt was subjected to sodium carbonate and phenolphthalein test. It is also pertinent to note here that in his cross-examination P.W.7 has deposed that he did not remember the colour of the T-Shirt and since, the other employees of Palladam telephone office had told him to take, the T-Shirt, he had brought the same and handed it over to the wife of P.W.2. As adumbrated supra, the wife of P.W.2 has not been examined by the prosecuting agency for the reasons best known to them. 54. As discussed in the opening paragraphs of this judgment, there was delay in registering the first information report. As adumbrated supra, the wife of P.W.2 has not been examined by the prosecuting agency for the reasons best known to them. 54. As discussed in the opening paragraphs of this judgment, there was delay in registering the first information report. The complaint (Exhibit P-3) was handed over by P.W.5 to P.W.3 with a copy on 27.3.2002 at 6.00 a.m., but the first information report Exhibit P-24 reveals that it was registered only at 8.00 p.m. The above aspect creates serious doubt on the genuineness of the prosecution case. 55. It is pertinent to note here that as seen from Exhibit P-5, the material objects viz., M.O.1 to 5 were collected on 27.3.2002 at 11.00 a.m. Thereafter, the case records were entrusted with P.W.10 for investigation. P.W.5 did not say as to whether the Material Objects 1 to 5 were also entrusted with P.W.10 for being sent to Court for onward transmission to the Forensic Sciences Laboratory for chemical examination. P.W.10 has also not deposed as to whether he had submitted a requisition before the III Additional District Judge Coimbatore, requesting to send the Material Objects to the Forensic Sciences Laboratory. 56. But it appears from the records that Exhibit P-27 chemical analysis report bearing No. T. No. 3615 of 2002 Chem. 292 of 2002 dated 3.5.2002 was received by the Special Court on 11.11.2002. This report has the reference to the letter in T. No. 256 of 2002 dated 3.5.2002 which appears to have been sent by the Learned III Additional District Judge, CBI Cases, Coimbatore to the Forensic Sciences Laboratory, Chennai. This report further reads that; “A sealed cardboard box labelled “P.R. No. 3 of 2002 R.C. No. 12(A) of 2002 of SPE/CBI/ACB/Chennai, Item No. 4, 5, 6, 7, 8..” and containing the following items was received here on 24.5.2002 through police constable Mr. K.G. Ratheesh, under unbroken seals which corresponded with the sample seal sent.” 57. In the result column it is stated that both phenolphthalein and Sodium Carbonate were detected in items 1, 2, 3 and in the pocket washing of item 4. 58. But however, P.W.10 Investigating Officer has not stated as to when he had submitted the request before the III Additional District Judge, Coimbatore, to send the material objects for chemical examination. In the result column it is stated that both phenolphthalein and Sodium Carbonate were detected in items 1, 2, 3 and in the pocket washing of item 4. 58. But however, P.W.10 Investigating Officer has not stated as to when he had submitted the request before the III Additional District Judge, Coimbatore, to send the material objects for chemical examination. It is also very important to note here that the scientific assistant who had issued this report under Exhibit P-27 has not even been cited as a witness and no one was examined from the Forensic Sciences Laboratory to speak about the credit worthiness of this report. The non-examination of the scientific assistant who had subjected the material objects to test has caused a serious dent in the story of the prosecution. 59. In this regard the learned counsel for the appellant has also placed reliance upon the decision in Chidambaram v. State rep. by The Inspector of Police, Central Bureau of Investigation LNIND 2007 Mad 2012 : (2007) 2 MLJ (Crl.) 931 . In this case this Court has held that no explanation from prosecution for inordinate delay in sending material objects for chemical examination. It is also held that the investigation before registering the first information report is bad in law and the very existence of the complaint itself, even before commencement of investigation is doubtful. 60. In accordance with the learned counsel for the appellant, the case of the defence is that there was no demand either prior to 27.3.2002 or on 27.3.2002. The appellant went to the house of P.W.2 only to hand over the telephone directory. Since P.W.2’s telephone connection was kept on pending for more than a year, P.W.2 was under the impression that the appellant was the cause for the delay and hence he had deliberately given a false complaint on the dictation of P.W.5. The phenolphthalein - powder was already smeared over the phone and on the date of trap, P.W.2 had enquired the appellant about the STD lock and therefore, the appellant had explained him about the STD lock by handling the phone and under this circumstances the appellant came in to contact with the phenolphthalein powder smeared on the receiver of the phone and the fingers of the appellant had therefore, answered positive during the test. 61. 61. He has also adverted to that in this connection a suggestion was put to P.W.10, P.W.5 and P.W.2. While P.W.10 and P.W.5 were denying the suggestion, P.W.2 would speak that the appellant had asked him as to whether the phone was working. While so he (P.W.2) had enquired the appellant about the STD lock, for which the appellant had told him that there is a separate form in his office and he would help him in that regard. He has also submitted that P.W.2 would also speak that after 10.3.2002, the appellant came to his house only on 27.3.2002 and he gave the telephone directory and asked him about the condition of the phone. He had also checked the telephone and informed him that it was working perfectly. He has also referred the evidence of P.W.3 in which P.W.3 had corroborated with the evidence of P.W.2. 62. On the other hand the learned special public prosecutor appearing for the respondent police would submit that the demand made by the appellant has been clearly proved by the testimonies of P.W.2, P.W.3 and P.W.5 and only on the demand made by the appellant, P.W.2 was constrained to give the complaint before P.W.5 on the direction given by the Superintendent of Police, CBI Chennai. The learned Special Public Prosecutor has also referred the chief examination of P.W.2 and would submit that on 26.3.2002 at about 8.30 a.m., the appellant had contacted P.W.2 and had demanded the amount and also put P.W.2 under threat that if the amount was not given, then the telephone connection would be disconnected. He has also submitted that the trap proceedings were successfully completed by P.W.5 and all the tainted currency notes, the fingers of the appellant and his shirt pocket were proved positive. He has also added that the evidence of P.W.3 has corroborated the evidence of P.W.2 and P.W.5. He has also added that P.W.3 had stated that when the appellant had demanded money soon after his arrival P.W.2 had taken the tainted currency notes from his pocket and handed over to the appellant and it was received by the appellant in his right hand and counted the currency notes by using both hands and subsequently, he had put the currency notes in his left side pocket. In this connection he would submit further that the prosecution has unambiguously, clingingly and convincingly proved the offences against the appellant and the guilt of the appellant was also brought home beyond all reasonable doubts. He has also maintained that the trial Court had also analyzed all the incriminating circumstances based on the evidences both oral and documentary and ultimately, found the appellant guilty under Sections 7 and 13 Sections 7 and 13 (2) read with 13(1)(d) of Prevention of Corruption Act 1988 and therefore, the conviction and sentence imposed on the appellant do not require any interference of this Court. 63. In support of his argument he has placed reliance upon the decision V.D. Jhingan v. State of Uttar Pradesh (1966) 3 SCR 736 : AIR 1966 SC 1762 : 1966 Cri LJ 1357 : (1966) 1 MLJ (Crl) 827. In this case while speaking on behalf of a Full Bench his Lordship Hon’ble Mr. Justice Ramaswamihas referred the proviso to sub-section (1) of Section 4 of the Prevention of Corruption Act and His Lordship has also referred the decision in Dhanvantrai Balwantrai Desai v. State of Maharashtra 1964 Cri LJ 437 : AIR 1964 SC 575 : LNIND 1962 SC 324 : 1963-II-LLJ-415 : (1964) 1 MLJ (Crl) 65 in which it is held that in order to raise the presumption under this sub-section what the prosecution has to prove is that the accused person has received “gratification other than legal remuneration” and when it is shown that he has received a certain sum of money which was not a legal remuneration, then the condition prescribed by this Section is satisfied and the presumption thereunder must be raised. It was contended in that case that the mere receipt of any money did not justify the raising of the presumption and that something more than the mere receipt of the money had to be proved. The argument was rejected by the Apex Court and it was held that the mere receipt of the money was sufficient to raise a presumption under the sub-section. 64. A similar argument was advanced in C.I. Emden v. State of Uttar Pradesh AIR 1960 SC 548 : (1960) 1 MLJ (Crl) 228. The argument was rejected by the Apex Court and it was held that the mere receipt of the money was sufficient to raise a presumption under the sub-section. 64. A similar argument was advanced in C.I. Emden v. State of Uttar Pradesh AIR 1960 SC 548 : (1960) 1 MLJ (Crl) 228. While rejecting that argument the Apex Court held thus: “If the word ‘gratification’ is construed to mean money paid by way of a bribe then it would be futile or superfluous to prescribe for the raising of the presumption. Technically it may no doubt be suggested that the object which the statutory presumption serves on this construction is that the Court may then presume that the money was paid by way of a bribe as a motive or reward as required by Section 161 of the Code. In our opinion this could not have been the intention of the Legislature in prescribing the statutory presumption under Section 4(1).” 65. The Apex Court in the above cited case had proceeded to observe that; “It cannot be suggested that the relevant clause in Section 4(1) which deals with the acceptance of any valuable thing should be interpreted to impose upon the prosecution an obligation to prove not only that the valuable thing has been received by the accused but that it has been received by him without consideration or for a consideration which he knows to be inadequate. The plain meaning of this clause undoubtedly requires the presumption to be raised whenever it is shown that the valuable thing has been received by the accused’ without anything more. If that is the true position in respect of the construction of this part of Section 4(1) it would be unreasonable to hold that the word ‘gratification’ in the same clause imports the necessity to prove not only the payment of money but the incriminating character of the said payment. It is true that the Legislature might have used the word ‘money’ or ‘consideration’ as has been done by the relevant Section of the English statute;.......” 66. At paragraph No. 4 of the above cited judgment his Lordship has observed that; “The next question arising in this case is as to what is the burden of proof placed upon the accused person against whom the presumption is drawn under Section 4(1) of the Prevention of Corruption Act. At paragraph No. 4 of the above cited judgment his Lordship has observed that; “The next question arising in this case is as to what is the burden of proof placed upon the accused person against whom the presumption is drawn under Section 4(1) of the Prevention of Corruption Act. It is well-established that where the burden of an issue lies upon the accused, he is not required to “discharge that burden by leading evidence to prove his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of accused; but the same test cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4(1) of the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur a verdict of guilty. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to prosecution which still has to discharge its original onus that never shifts i.e., that of establishing on the whole case the guilt of the accused beyond a reasonable doubt.” 67. While penning down the judgment his Lordship has also quoted the decision in Viscount Sankey in Woolmington v. Director of public Prosecutions (1935) A.C. 462. In this case it is held that; “no matter what the charge or where the trial, the principle that the prosecution must prove the guilt of the prisoner is part of the common law of England and no attempt to whittle it down can be entertained”. This principle is a fundamental part of the English Common Law and the same position prevails in the Criminal Law of India. That does not mean that if the statute places the burden of proof on an accused person, he is not required to establish his plea; but the degree and character of proof which the accused is expected to furnish in support of his plea, cannot be equated with the degree and character of proof expected from the prosecution which is required to prove its case.” 68. The learned special public prosecutor has also laid emphasis on an another decision in Mahesh Prasad Gupta v. State of Rajasthan AIR 1974 SC 773 : 1974 SCC (Cr) 69 : LNIND 1973 SC 380 . In this case while scribing down the judgment Lordship Hon’ble Mr. Justice Y.V. Chandrachud has held in paragraph No. 7 that; “7. Under Section 4(1) of the Act, the burden of proving the contrary must rest on the appellant. But learned counsel appearing on his behalf urges that the presumption under Section 4(1) can be raised only if the prosecution establishes in the first instance that the amount was paid otherwise than as legal remuneration. This contention is contrary to the clear terms of Section 4(1) and would render illusory the presumption arising under the Section, to cast on the prosecution the burden of proving that the amount was accepted by the accused otherwise than by way of legal remuneration is to ask the prosecution to prove that the amount was paid and accepted by way of bribe. If this be the true nature of the burden resting on the prosecution, no presumption at all need be raised because apart from the presumption the prosecution would have to prove that the money was accepted by the accused and that it was accepted as a bribe. It is plain that if the prosecution proves the acceptance of the amount by the accused and the amount does not represent legal remuneration in any form or of any kind, the accused must establish that the amount was not accepted by him as a motive or reward such as is mentioned in Section 161, Penal Code. As held in V.D. Jhingan v. The State of Uttar Pradesh (supra), the accused can establish his case by preponderance of probabilities, that is to say, he need not prove his case beyond a reasonable doubt.” 69. In C.K. Damodaran Nair v. Government of India AIR 1997 SC 551 : 1997 SCC (Cr) 654 : (1997) 9 SCC 477 : LNIND 1997 SC 17 the Apex Court has explained the stand as to what presumption can be raised under Section 4(1) of Prevention of Corruption Act. It has also held that the evidence under Section 151 IPC, can be established by proof of either acceptance or obtainment of illegal gratification and that proof of prior demand note is not essential. It has also held that the evidence under Section 151 IPC, can be established by proof of either acceptance or obtainment of illegal gratification and that proof of prior demand note is not essential. Further the Apex Court has also given a vivid account on the phrase ‘acceptance’ and would say that the phrase ‘acceptance’ implies consenting mind which can be proved by surrounding circumstance without proof of prior agreement. However a demand or request from official concerned is a primary requisite for offence under Section 5(1) (d) of Prevention of Corruption Act and further held that mere proof of obtainment is not sufficient. 70. A similar view has been taken by the Apex Court in MadhukarBhaskarrao Joshi v. State of Maharashtra AIR 2001 SC 147 : 2001 SCC (Cr) 34 : (2000) 8 SCC 571 : LNIND 2000 SC 1478 : (2001) 1 MLJ (Crl) 187 . In this case when disclosing about the phrase gratification and presumption, His Lordship Hon’ble Mr. Justice K.T. Thomas on behalf of a Division Bench has spoken that once prosecution establishes that gratification was paid and accepted by a public servant, presumption arises that it was paid and accepted as a motive or reward for doing any official Act. 71. In GirijaPrasad (Dead) by Lrs. v. State of M.P. AIR 2007 SC 3106 : (2007) 3 SCC (Cr) 475 : (2007) 7 SCC 625 : LNIND 2007 SC 1006 : (2008) 2 MLJ (Crl) 1767 the Apex Court has observed that once it is proved that the amount has been received by the accused, presumption under Section 4 would get attracted, and in such a case it would be wholly immaterial whether the said acceptance of amount was for him or for someone else. It would also be immaterial whether the accused was or was not in a position to oblige the complaint. However, the said presumption is not absolute and the accused can rebut the said presumption by leading evidence. The Apex Court has also held that in the present case there was evidence as to acceptance of amount by the accused and hence, presumption under Section 4 of the Prevention of Corruption Act 1947 got attracted. It is also held that the accused also failed to rebut the said presumption as he did not adduce any evidence whatsoever in that regard. It is also held that the accused also failed to rebut the said presumption as he did not adduce any evidence whatsoever in that regard. The Apex Court has also laid down the ratio that where no evidence was adduced by accused to rebut the presumption raised under the law and he merely took the defence of ‘total denial’ and ‘false implication’, held the doctrine of preponderance of probability had no application. To arrive at this conclusion the Apex Court sought the assistance of the proviso to Sections 101, 103 Sections 101, 103 and 3 of Evidence Act 1872. 72. On coming to the instant case on hand, the learned counsel for the appellant would submit that even in accordance with the case of the prosecution there was a demand from the appellant and that it was alleged that the appellant had told P.W.2 that if the amount was not given then the connection would be disconnected. In this connection he would submit that demanding money for connection might not be accepted and once demand comes question of recovery would not arise. 73. In so far as this case is concerned it is to be noted that in his cross-examination P.W.2 has stated that on 27.3.2002, the appellant had come to his house and given a telephone directory. He has also admitted that when he had come to his house, the appellant had checked the telephone to find out as to whether it was functioning perfectly and told him that it was functioning well. From his evidence it is inferred that the appellant had handled the telephone on 27.3.2002. P.W.3 had also corroborated the evidence of P.W.2. 74. P.W.3 would go further and depose in tune with the evidence of P.W.2 that the accused had taken the telephone and checked it. The learned counsel has also submitted that no preliminary enquiry was conducted by P.W.5 to ascertain the genuineness of the complaint. He has also maintained that on 23.3.2002 at 9.00 a.m., when P.W.2 contacted CBI Officer over phone he did not disclose any details regarding the complaint as he did not even know the designation of the appellant. Further he would submit that as disclosed from the evidence of P.W.3, P.W.5 had enquired the name of the accused and then only he came to know about the name of the appellant. 75. Further he would submit that as disclosed from the evidence of P.W.3, P.W.5 had enquired the name of the accused and then only he came to know about the name of the appellant. 75. It is significant to note here that during the course of 313 Cr.P.C, proceedings the appellant had submitted a written statement in which he as stated that when he had been to the house of P.W.2 for effecting telephone connection, on seeing his hospitality and his good behavior he had given his residential telephone number to P.W.2. At the time of his leaving he had told that on account of the burden of work, he was not able to bring the telephone directory and he would hand it over within one or two days. He would state further that on the previous day P.W.2 and his wife had rung him up for about 10 times from 6.00 p.m. to 9.30 p.m. and asked his wife to bring the telephone directory as their guest wanted to know some telephone numbers. Soon after his arrival, his wife had told him that P.W.2 had telephoned and asked to bring the telephone directory. Accordingly his wife had also instructed him to take the telephone directory and hand it over to P.W.2 on the next day i.e., on the crucial day at about 6-7 a.m. He has stated that P.W.2 had also telephoned him for about 3 times and urged him to bring the telephone directory. The appellant has also stated that he was having a telephone directory intended to be given to other person. Since, P.W.2 had called him repeatedly and urged him to bring the telephone directory, after 15 days he had again visited the house of P.W.2. 76. On account of urgency, when he was handing over the telephone directory to P.W.2 in front of his house P.W.2 had compelled him to come inside and he had also pulled his hand and taken inside and made to sit. While conversing with P.W.2, the appellant had asked him as the whether the phone was functioning properly and he had also enquired about the details of the system of locking and unlocking the STD facility. For that the appellant had told that a separate application was available in their office. While conversing with P.W.2, the appellant had asked him as the whether the phone was functioning properly and he had also enquired about the details of the system of locking and unlocking the STD facility. For that the appellant had told that a separate application was available in their office. He would state further that he was provided with coffee and when he was nearing his two wheeler which was parked outside the house of P.W.2, 4 persons came running from the neighboring house and caught him by holding his hands up. He was immediately taken inside the house, made to sit and he was informed that they were coming from CBI thereafter they had obtained his signatures in some papers. 77. In this connection the learned counsel for the appellant would submit that the appellant had never demanded and received the money and it was also not recovered from his possession and only for the purpose of trapping him phenolphthalein powder might have been smeared on the telephone receiver and when he was handling the telephone he might have come in contact with the phenolphthalein powder. Therefore he would submit that the appellant has established the preponderance of probability insofar as the defence case is concerned and the finding, sentence and conviction imposed by the trial Court might be set aside and the appellant be acquited. 78. As revealed from Exhibit P-25, rough sketch as well as the evidence of P.W.2, P.W.2’s house is very small and consists of only two rooms. As adumbrated supra, the alleged hiding of P.W.5 and 3 in a small room is highly unbelievable and it is also revealed from the testimonies of P.W.2 that his wife was present in the kitchen but she was not examined. P.W.2 has also stated that the happenings of the incident in the hall was not known to his wife. This piece of evidence is not able to be countenanced. 79. This Court has carefully scrutinized the testimonies of the prosecution witness ranging from P.W.1 to P.W.10. P.W.1, Divisional Engineer Rural has accorded sanction to launch prosecution against the appellant. He would depose in his cross examination that the telephone mechanic had no powers to disconnect or to give connections on his own. He has also ratified that at the time of lodging the complaint, the phone of P.W.2 was in working condition. P.W.1, Divisional Engineer Rural has accorded sanction to launch prosecution against the appellant. He would depose in his cross examination that the telephone mechanic had no powers to disconnect or to give connections on his own. He has also ratified that at the time of lodging the complaint, the phone of P.W.2 was in working condition. He has also fairly admitted that no date is mentioned in Exhibit P-1 sanction order to ascertain as to on what date the order was issued to launch the prosecution. 80. As discussed in the earlier paragraphs the following discrepancies and infirmities are found in the case of the prosecution. 1. The genuineness of the complainant under Exhibit P-3 has been shrouded with the shadow of doubts. 2. There is a delay in registering the case. 3. P.W.5 had initiated proceedings even prior to the registration of the case under Exhibit 24. 4. P.W.5 had organised trap team even prior to the receipt of the complaint which shows that the trap in respect of the appellant is well planned, motivated. 81. The case of the defence is that P.W.2’s telephone connection was kept pending for more than a year and that P.W.2 had thought that the appellant was the cause for the delay and therefore, had deliberately lodged a false complaint. He has also submitted that the phenolphthalein powder was already smeared over the phone and when the appellant was handling the phone he came into contact with the phenolphthalein powder and hence his fingers had answered positive during the test. 82. On appreciation of the evidences both oral and documentary and on hearing the submissions of both sides this Court is of considered view that the appellant has succeeded in proving the preponderance of probability in his case. On the footing of the decision in V.D. Jhingan v. State of Uttar Pradesh (supra), it is not necessary for the appellant to prove his case beyond all reasonable doubt. No doubt the onus of proof lying upon the appellant is to prove his case by a preponderance of probability. Since he has succeeded in doing so, the burden is shifted to prosecution to establish the whole case of guilt of the appellant beyond a reasonable doubt. No doubt the onus of proof lying upon the appellant is to prove his case by a preponderance of probability. Since he has succeeded in doing so, the burden is shifted to prosecution to establish the whole case of guilt of the appellant beyond a reasonable doubt. But the prosecution has miserably failed to establish this case beyond all reasonable doubt and hence, this Court finds that the alleged offences under Section 7 and 13 Section 7 and 13 (2) read with 13(1)(d) of Prevention of Corruption Act have not been proved as against the appellant and therefore, he is liable to be acquitted. 83. In the result, the appeal is allowed. The conviction and the sentence imposed on the appellant are set aside and the appellant is acquitted of the charges under Sections 7 and 13 Sections 7 and 13 (2) read with 13(1)(d) of Prevention of Corruption Act 1988. The fine amount paid by the appellant shall be refunded. The bail bonds executed by and on behalf of the appellant shall stand discharged.