JUDGMENT A.N. Venugopala Gowda , J.—State by Lokayuktha Police has filed this appeal assailing the judgment and order of acquittal dated 6.10.2009, passed by the learned Sessions Judge, Chikmagalur in Spl. Case. No. 10/2007, whereby and whereunder, the respondents who were tried for the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988 were acquitted from the charge. The case of the prosecution in brief is that, complainant/PW. 1, applied for change of katha in respect of a revenue site to his name from the name of his deceased father and when he approached the respondents, they demanded payment of bribe to each of them. Having no mind to pay the bribe amount, PW. 1 lodged a complaint/Ex.P-1 on 28.01.2004 at the Lokayuktha Office, Chikmagalur. The Lokayuktha Police, Chikmagalur registered a case, submitted FIR in a sealed cover, procured two official panch witnesses, conducted entrustment mahazar in their presence as per Ex.P-2 and the trap party left Chikmagalur in a departmental vehicle to Kadur and that the complainant and shadow witness went to the Taluk Office and the others were waiting for signal, but the first and third accused were on leave on that day and the complainant and the shadow witness waited for the second accused and were able to meet him at 6.30 p.m. and they were told by A2 to come on the next day as the first accused would be present on that day and the trap party returned to Chikmagalur and a mahazar Ex.P-3 was drawn in respect of the events of the day. On the morning of 29.01.2004, instructions to the witnesses were reiterated and mahazar as per Ex.P-29 was drawn and the trap party left Chikmagalur at 10.45 a.m. reached Kadur at 11.35 a.m. and the complainant and the shadow witness went inside the Taluk Office and another panch witness and remaining members of the trap party were waiting outside. The complainant met A1 and enquired about his application and at first instance A1 told him that his application is objected but another official in the office told that there is no such objection. The complainant met A1 and enquired about his application and at first instance A1 told him that his application is objected but another official in the office told that there is no such objection. After confirming from the complainant that he has brought the bribe amount, A1 told him to get the number of his application from the counter and after the application number was procured, the complainant's application was traced and thereafter A1 demanded the bribe amount and the complainant gave the tainted currency notes of Rs. 900/-, which A1 received by his right hand and set it right by using his left hand and the conversation between them was recorded in a micro cassette that was handed over to the complainant during entrustment mahazar. Thereafter, the complainant came outside the Taluk office, gave signal and the tap party entered into the office and A2 was procured from his chamber to the office room wherein A1 and A3 were sitting and they were informed about the registration of the case against them and when both the hands of A1 was washed separately in sodium carbonate solution, the solution changed its colour, thereby evidencing the presence of phenolphthalein and the tainted notes/bribe money was produced by A1 on the direction of the Police Inspector and all the three accused gave there explanation in writing. The pocket portion of shirt of A1 was washed in sodium carbonate solution which proved the presence of phenolphthalein. When the tape recorder was played, the same confirmed the conversation between the complainant and A1. Two applications given by the complainant for change of katha were produced by A1. Attendance register and other documents were seized from the office. Sketch of scene of offence was prepared and mahazar as per Ex.P-4 was also prepared. Photographs were also taken. Accused were arrested and released on bail. Police Inspector recorded the statement of the witnesses. After receiving the sketch from the PWD department, FSL report, service particulars of the accused persons and sanction order to prosecute A3, the charge sheet was laid. The accused appeared and denied the charge. To prove the charge, prosecution examined PWs 1 to 9 and marked Exs.P-1 to P-40 and MOs 1 to 14. Accused were examined under Section 313 Cr.P.C. No defence evidence was adduced. The accused appeared and denied the charge. To prove the charge, prosecution examined PWs 1 to 9 and marked Exs.P-1 to P-40 and MOs 1 to 14. Accused were examined under Section 313 Cr.P.C. No defence evidence was adduced. Considering the rival contentions and the record of the case, the learned Special Judge did not find merit in the prosecution case and as a result passed the judgment/order of acquittal. 2. The reasons which lead the learned Judge to hold that the prosecution has failed to prove its case beyond all reasonable doubts are the following: a. PW.1-the complainant, has not supported the case of the prosecution. b. There was no demand of bribe amount by accused No. 2, the tainted notes were not seized from Accused No. 2 and the Govt. has not accorded sanction to prosecute him. c. There was no acceptable evidence to hold that the A.3 has demanded bribe from the complainant either for himself or for the Tahasildar and it is not the case of prosecution that he had received the bribe amount. d. That the change of khatha has already been effected prior to the date of the trap itself and accused No. 1 has handed over the charge of Birur Hobli on 22.1.2004 itself to one Smt. Shwetha. e. The evidence of shadow witness/PW. 2 was disbelieved, on the ground that he could not have heard the conversation nor seen what transpired between the complainant and accused No. 1. 3. Smt. T.M. Gayathri, learned Advocate, appearing for the appellant, contended that, keeping in view the materials brought on record by the prosecution, the learned trial Judge has committed a serious error in acquitting A1/C. Seenappa. He submitted, that having regard to the provisions of Section 20 of the Act, the burden of proof was on A1 and he having failed to explain as to how the amount of Rs. 900/- was found in his shirt pocket, the learned Judge is not justified in passing the judgment/order of acquittal as against A1. Learned Counsel submitted that the discrepancies in the deposition of prosecution witnesses being trivial in nature could not have enabled the learned trial Judge to record the finding of acquittal. 900/- was found in his shirt pocket, the learned Judge is not justified in passing the judgment/order of acquittal as against A1. Learned Counsel submitted that the discrepancies in the deposition of prosecution witnesses being trivial in nature could not have enabled the learned trial Judge to record the finding of acquittal. Learned counsel submitted that the evidence brought on record has not been correctly appreciated and the findings in the impugned judgment are perverse and illegal and hence, interference in the matter is warranted. Learned counsel submitted that the prosecution has made out its case as against A1. 4. Sri. S.G. Pandit, learned Advocate appearing for the respondents 1 and 3, on the other hand, contended that the complainant/PW.1 has not supported the prosecution case and the evidence of the shadow panch witness/PW. 2 is inconsistent and has rightly been disbelieved by the trial Judge. He submitted that credible evidence has not been brought on record by the prosecution and since the case was not proved beyond all reasonable doubts, the learned trial Judge is justified in recording the judgment of acquittal. Reliance was placed on the decisions in the case of A. Subair Vs. State of Kerala, (2009) CriLJ 3450 . Learned counsel submitted that A1 has retired from service and in the circumstances of the case no interference with the impugned judgment is warranted. 5. Sri. S. Nagaraja, learned Advocate appearing for respondent No. 2 contended that the prosecution has failed to bring on record any material with regard to the alleged demand and/or acceptance of bribe amount by A2 and in the circumstances, the trial Court is justified in recording the judgment/order of acquittal in respect of A2. 6. Smt. T.M. Gayathri, conceded that the prosecution has not proved its case as against A2 and A3 and that the consideration of this appeal be limited to the case as against A1. 7. Keeping in view the record of the case and the submissions made by the learned Advocates appearing for the parties, the point for consideration is, Whether the prosecution has proved beyond all reasonable doubts that A1 has demanded and received the bribe amount from the complainant and that the trial Court is not justified in passing the judgment/order of acquittal? 8. The demand of illegal gratification is a sine qua non for constitution of an offence under Sections 7 and 13(1)(d) of the Act. 8. The demand of illegal gratification is a sine qua non for constitution of an offence under Sections 7 and 13(1)(d) of the Act. To arrive at the conclusion as to whether the ingredients of the offence namely demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the entire record of the case. 9. Sri. H.V. Jayakumar, complainant was examined as PW. 1. He did not support the prosecution case and was treated as hostile witness by the prosecution. He has denied that both himself and the shadow panch witness (PW. 2) went near A1. According to him, PW. 2 was standing at a distance and he alone went inside. He has said that, A1 did not demand any amount from him and when he volunteered to pay the amount, A1 did not come forward and receive it and that he left the amount on the table of A1. He has said that, A1 did not demand and accept the amount from him and that his work was not pending with A1. He has said that, as on 28.01.2004, A1 was not incharge of the work relating to the application for transfer of katha. 10. T. Venkataramaiah, shadow witness was examined as PW. 2. He has supported the case of the prosecution with regard to the mahazars marked as Exs.P-2, P-3 and P-4. He has said that, A1 was sitting in the office room, close to the entrance door and he was standing near the door, watching the observing the complainant and A1 and according to him, after the application of the complainant was procured, A1 demanded the amount and complainant handed over the cash amount by stating that Rs. 250/- was for A1, Rs. 500/- was for A2 and Rs. 150/- was for A3 and that A1 received the cash in his right hand, placed it in the pocket of his shirt and set right by using his left hand and the hand wash changed the colour to pink and so also the shirt pocket worn by him. Learned trial Judge has correctly noticed the material circumstances on account of which evidence of A2 cannot be accepted. 11. B.V. Siddaramappa/PW. 6 was the Village Accountant. The application of the complainant seeking transfer of katha was dealt by PW. 6. Learned trial Judge has correctly noticed the material circumstances on account of which evidence of A2 cannot be accepted. 11. B.V. Siddaramappa/PW. 6 was the Village Accountant. The application of the complainant seeking transfer of katha was dealt by PW. 6. He has said that, after receipt of the application, he made the mutation entry in the register, published the matter in accordance with Form No. 21 and since there was no objection, he made the endorsement to that effect and the Revenue Inspector forwarded the application to the computer branch to carry out the change of katha. He has said that he recovered fee of Rs. 10/- from the complainant on 22.01.2004 and paid the same to the computer section. He has further deposed that he received the register from the revenue inspector on 19.12.2003 and until 22.01.2004 there was no objection and the katha was changed on 21.01.2004 and he recovered fee of Rs. 10/- directly from the complainant on 22.01.2004. He has deposed that all the said facts were told by him to the police. 12. Evidence of U. Nagesh Ithal/PW.8, the then Inspector of Police at Lokayuktha makes it clear that A1 in his explanation vide Ex.P-21, stated that, the katha was already changed over to the name of the complainant, he has already handed over charge of Birur Hobli to Miss Swetha and the complainant with a malafide intention brought the currency notes in contact with his hands and forcibly kept the same in his pocket." 13. Evidence of PW. 6 is in tune with the documentary evidence. The relevant endorsements can be found on the katha application of the complainant. 14. From the record it is clear that even prior to the date of trap, A1 had ceased to be the official incharge of katha section. Considering the application of PW.1, katha of the property was made to his name i.e., on 21.01.2004 and that the complainant paid the katha fee of Rs. 10/- on 22.01.2004. PW.3 was the official of the katha section on the date of trap, since A1 had handed over the charge to her. From the evidence of PW.3, it is clear that on the basis of the first application given by the complainant on 12.11.2003, katha was changed by an order dated 22.01.2004. From the evidence of PW. 6, it is clear that katha fee of Rs. From the evidence of PW.3, it is clear that on the basis of the first application given by the complainant on 12.11.2003, katha was changed by an order dated 22.01.2004. From the evidence of PW. 6, it is clear that katha fee of Rs. 10/- was remitted by the complainant on 22.01.2004. In the circumstances, no work of the complainant was pending with A1. As such, there could not have been any occasion for demanding of the bribe, to do the official work of registration of katha. 15. The prosecution has failed to prove the foundational facts of the demand and acceptance of the bribe amount. Mere recovery of the tainted currency notes from the possession of A1 is not sufficient to hold that there was a demand and acceptance of bribe amount by him. PW. 1, as already noticed, has not supported the case of the prosecution. PW. 2 undisputedly, was standing near the door which was at a little distance from the seat of A1 and could not have heard the conversation which took place between PW. 1 and A1. 16. To shift the burden on the accused and apply the presumption under Section 20 of the Act, prosecution must prove the said foundational facts. No credible evidence in that regard is forthcoming. In view of lack of credible evidence, the learned trial Judge is justified in holding that the prosecution has failed to prove its case beyond all reasonable doubts. The view taken by the trial Court in the facts and circumstances of the case cannot be said to be perverse or illegal. No case is made out to reverse the judgment/order of acquittal. In the result, the appeal being devoid of merit is dismissed.