Judgment :- 1. This Criminal Appeal is filed against the Judgment dated 31.12.2004 in S.C.No.2/2001 on the file of the learned Chief Judicial Magistrate No.1 cum Special Judge, Dharmapuri at Krishnagiri, Dharmapuri District. 2. Following are the essential details of prosecution case 2 [a] The first accused was working as Manager – Marketing & Services at Tamilnadu Housing Board, Hosur and second accused was serving as Works Assistant, Tamilnadu Housing Board, Hosur. PW2 is the retired teacher whose son name is Jayaprakash Naren. A house was allotted in his name for which the value of the house was paid in instalments. During 1993, such allotment was made to Jayaprakash Naren. He breathed his last on 08.09.1995. For the purpose of transferring the house in his name, PW 2 approached the first accused and asked him to execute sale deed in his favour for LIG Door No.139 house on payment for which the first called second accused and introduced him to PW 2. They requested to produce certain certificates for that purpose. Accordingly, PW 2 arranged the records and on 03.12.1999, he produced the records into the office of the accused. Both the accused checked up the records. The first accused told him to come after one week. On 05.01.2000, at about 11.00 a.m., PW2 met the first accused. He demanded Rs.6000/- for transferring the house in his name. He had also called the second accused and informed that PW2 would pay Rs.6000/- and after getting the same, he had to make the file ready for allotment of LIG Door No.139. PW2 said that he could not pay Rs.6000/- on account of his difficulties for which the first accused told that it is enough to pay atleast Rs.3000/-. Thereafter, PW2 asked the accused to give the order for payment of Rs.500/- through challan but he told that only after paying Rs.3000/-, he could pass orders and if the amount is not paid, order could not be passed. He also asked PW2 to pay the amount on 11.01.2000, Tuesday and also informed that on payment of such amount, the name transfer will be made ready within one week in favour of PW 2. They also informed that the balance instalment amount for registration will be informed to PW 2 and the same has to be paid within one month. They also informed that the balance instalment amount for registration will be informed to PW 2 and the same has to be paid within one month. They also threatened that if PW2 divulged the matter to others, the process of name transfer would suffer difficulties. PW2 was not willing to get the name transfer on payment of bribe to both the accused. 2 [b] Narrating the above said details, PW2 lodged a complaint with the respondent police. The Inspector of police, PW9 received the complaint and lodged FIR, Ex.P13. He sent intimation to the Asst. Director of Sericulture and Regional Joint Director of Animal Husbandry for sending witnesses through Exs.P14 & 15. On the basis of Exx.P14 & P15, PW 3 Natarajan and PW4 S.Ponnudurai reported by 11.00 a.m. They were introduced to PW2 and asked them to read the FIR. PW2 produced Rs.3000/-currency notes of 30 in number with denomination hundred and PW 9 noted the numbers of the currency notes. He prepared sodium carbonate solution in a clean glass tumbler. He asked PW 3 to count the notes who did the same and asked him to dip his fingers in the solution. There was no change in the colour. Thereafter, he directed to apply phenolphthalein powder over the currency notes. He gave the notes to PW3 for counting and he did the same and he asked him to dip his fingers in to the solution. On doing so, the solution turned to pink colour. He explained the importance of the above said tests to the witnesses. Further, he asked PW 2 to go to the office of A.1 and to pay the money only after if he demands or to A.2 on his direction and if they received the amount, PW2 had to come out and to show the signal of folding his full hand shirt above the elbow. He also asked PW4 to accompany him and to watch the elements. PW2 got the amount and put them in his right shirt pocket. PW9 prepared a mahazar Ex.P4 with regard to the above said events. All of them started at 1.30 p.m. and reached Hosur at about 4.00 p.m. They stopped the vehicle at Hosur – Bagalur road and asked the complainant and PW4 to go to the office of the accused. Others were waiting and watching the office of the accused from a distance. All of them started at 1.30 p.m. and reached Hosur at about 4.00 p.m. They stopped the vehicle at Hosur – Bagalur road and asked the complainant and PW4 to go to the office of the accused. Others were waiting and watching the office of the accused from a distance. 2[c] At about 4.30 p.m., PW 2 came out from the accused office and showed pre-arranged signal by folding his shirt above the elbow. PW2 informed PW9 that he met the first accused at 4.15 p.m. and as per his direction, he met the second accused, that he took him to a nearby tea stall, received the money and gave it to a lady who was in the tea stall. Then PW2 identified second accused to PW9. He introduced himself and the second accused was taken to his room and PW 9 arranged to prepare sodium carbonate solution. He asked the second accused to dip both his hands into the solution. He dip the same and the solution turned to pink colour. PW9 collected samples in two bottles and and packed them as per procedure and he also signed on the label pasted on the samples alongwith the witnesses. On enquiry, second accused admitted that he received the amount from PW 2 and also informed that he gave the amount to one Saraswathy who was running the tea stall. The said Saraswathy was brought by the police constable. She produced Rs.3000/- kept in the plastic box. PW9 checked up the numbers. They tallied with the numbers recorded in the mahazar Rs.3000/- and the plastic box were seized by PW 9.Since the first accused was coming under 'B' category Government servant, he gave intimation to DSP for arresting him. He came at 6.45 p.m., verified the records and arrested both the accused. Pw9 also prepared a mahazar Ex.P5 as regards the events took place as above in which the Executive Engineer of TNHB an the DSP put their signatures. The copies of the mahazar were given to both the accused and PW9 sent the intimation Ex.P16 to court and conducted house search from the residence of both the accused. PW9 came to the office alongwith the accused and sent them to the court for judicial custody. 2[d] PW 8, Superintendent of Police took up the case for investigation, examined the witnesses and recorded their statements. PW9 came to the office alongwith the accused and sent them to the court for judicial custody. 2[d] PW 8, Superintendent of Police took up the case for investigation, examined the witnesses and recorded their statements. He sent Ex.P10 requisition to the court to send the sodium carbonate solution for chemical analysis. He sent investigation report to the Director of Anti Corruption Department. He also got sanction for prosecuting both the accused and on completion of investigation, he laid charge sheet against the accused. After prosecution evidence, the accused were questioned under Section 313 Cr.P.C. with regard to the undiscriminating materials available in the prosecution case. They denied the complexity to the offences. They examined two witnesses and marked Exs.D1 to D21. 3. After analysing the materials on record, the learned Chief Judicial Magistrate No.1 cum Special judge, Dharmapuri at Krishnagiri acquitted both the accused from the charges observing that the demand of bribe was not proved and that number of discrepancies are found in the evidence of prosecution witnesses. 4. Before the trial court, both the accused were questioned under Section 313 Cr.P.C. and both the accused filed written statements separately under Section 243 (1) of Cr.P.C. In the written statement filed by the first accused, he has stated that the case is falsely foisted on him, that PW 2 applied for name transfer of LIG 139 which was allotted to his son Jayaprakash Naren, that he was utilising the said house for running flour mill which caused nuisance to the neighbours and complaints were received in that regard and hence notices dated 10.02.1999 and 13.04.1999 were sent to PW 2 to remove the flour grinding machine from the house and hand over the possession of the house to TNHB since the same was allotted to Jayaprakash Naren, son of PW2, who was no more, that PW 2 sent a reply to the office of TNHB dated 26.02.1999 [Ex.D1] in which he has stated that his son died on 08.09.1995 and also admitted that he is running flour mill in the said house, that since PW 2 has misused the house which was allotted to his son, letter dated 09.11.1999 [Ex.D2] was sent to PW 2 to hand over the possession of the house and in reply to Ex.D2, PW 2 sent a reply dated 25.11.1999 [Ex.D3] in which he sought for reconsidering the order of cancellation. Further PW2 sent a letter dated 03.12.1999 requesting for name transfer of LIG 139 in his favour which was allotted to his son Jayaprakash Naren, that first accused had never demanded bribe from PW 2 for name transfer, that it is false to state that PW 2 met him in his office and he demanded Rs.6,0000/- and that the first accused asked PW 2 to pay Rs.3000/-, that on 11.01.2000 at about 4.00 p.m., he did not come to his office and he did not demand any amount and he did not ask him to pay the amount to second accused and that only to take vengeance PW2 had lodged the complaint. 5. In the written statement filed by the second accused, he has stated that complaints were received from the neighbours of PW 2 that PW2 is utilising the house for the purpose of running flour mill which is violative of rules and hence steps were taken to set aside the allotment of the house and second accused took steps to cancel the allotment of the house and so PW 2 got grudge upon the second accused, that it is incorrect to allege that the second accused demanded bribe on 05.01.2000 in order to arrange for name transfer of the house in favour of PW 2, that it is false to state that first accused directed PW2 to pay the amount to A.2 on 11.01.2000, that the episode stated by prosecution witness that on 11.01.2000 PW 2 met him and paid him Rs.3000/- is false, that he received the amount and gave it to one lady in the tea stall is also false, that at the time when PW2 requested him to re-consider the cancellation of allotment order, A.2 told that the concerned file was entrusted to some other office and that while they came out, PW 2 stopped him and thrusted money in his hands but he avoided and police caught over him, that PW2 took the cash and gave it to the Inspector of Police and that A.2 is innocent. 6. Points for consideration :- Whether the prosecution has brought home the guilt of the accused beyond all reasonable doubt ? 6. Points for consideration :- Whether the prosecution has brought home the guilt of the accused beyond all reasonable doubt ? Point: Mr.P.Govindarajan, learned Additional Public Prosecutor appearing for the appellant / State would argue that in as much as the evidence are cogent and convincing with regard to the guilt of the accused the court below should have found the accused guilty, that in this case the demand and the receipt of bribe have been proved to the satisfaction of the court, that the evidence of PW 2 to 4 are natural which would indicate the criminality on the part of the accused and that the findings regarding the guilt of the accused have to be recorded in view of the proof of charges on behalf of the prosecution. 7. Mr. Gopinath, learned senior counsel appearing for the accused would contend that the positive result of phenolphthalein tests would not stand as an evidence which would not establish independently without proof of demand of bribe on an earlier occasion and in this case, there are certain inconsistencies found in the prosecution witnesses with regard to the demand of bribe and that the complaint is far from proof and that it is shown by the accused that PW2 has got motive against the accused to lodge a false complaint and that further materials on prosecution side are also no doubt do not constitute the events to establish the charges and that the prosecution has failed to prove its case. 8. As regards the demand of bribe by A.1, different versions are coming from PW 2. In the complaint, he has stated that he went to the office of the accused on 05.01.2000 at about 11.00 a.m., that first accused demanded Rs.6000/- and on negotiation, he reduced the bribe money to Rs.3000/-. 8. As regards the demand of bribe by A.1, different versions are coming from PW 2. In the complaint, he has stated that he went to the office of the accused on 05.01.2000 at about 11.00 a.m., that first accused demanded Rs.6000/- and on negotiation, he reduced the bribe money to Rs.3000/-. Hence, the date of demand in the evidence is 05.01.2000 but in the earlier evidence, he has not stated particularly the date, that he says that one day in November 1999, when he met A.1 in his office, he was directed to come after one week and hence he went to the office of the accused on 05.12.1999 and on that date, both the accused asked him to come after one week and told that for office expenses money was needed for which PW2 has pleaded that he will pay the amount and whether they would pass receipt and they answered that they would not issue receipts and that it was for their personal expenses, that PW 2 asked A.1 for which how much has to be paid and that both the accused, after consultation among them, informed that Rs.6000/- had to be paid. 9. Further, 5.12.99 falls on a Sunday as shown by the oral testimony of D.W.2 who was then working as Executive Engineer in Tamil Nadu Housing Board under whom first accused was working, as seen on his production of Ex.D-19 the calendar of 1999. He also submits that 11.12.99 was Saturday and both the days are holidays to the office. 10. D.W.1 was working as Executive Engineer in Tamil Nadu Housing Board, Hosur, who produced Ex.D-17 register in which page No.70 shows about the particulars of the staff who had gone on other duty outside office on 3.12.1999, of which first accused on 3.12.1999 had gone to Vellore office. By the evidence of D.Ws.1 and 2 it is seen that the first accused was not available in the office on 3.12.1999, 5.12.1999 and 11.12.1999. Hence, the story woven by the prosecution that D.W.2 came to the office of A-1 and met him turned to be a deliberate falsehood. By the evidence of D.Ws.1 and 2 it is seen that the first accused was not available in the office on 3.12.1999, 5.12.1999 and 11.12.1999. Hence, the story woven by the prosecution that D.W.2 came to the office of A-1 and met him turned to be a deliberate falsehood. In this context cited is the judgment of the Honourable Supreme Court in 2007 CRI.L.J.754 : (2006) 13 SCC 305 [V. Venkata Subbarao v. State represented by Inspector of Police, A.P.] in which Their Lordships in para 24 have observed as follows: 24.Submission of the learned counsel for the State that presumption has rightly been raised against the appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. Section 20 of the Prevention of Corruption Act, 1988 provides for raising of a presumption only if a demand is proved. It reads as under: “20. Presumption where public servant accepts gratification other than legal remuneration.—(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate.”] 11. It is categorically and specifically stated by PW2 that on 05.12.1999, one week after 05.12.1999, he went to the office and at that time, he demanded the bribe. If it is so, the date of alleged demand would be 13.12.1999 or 14.12.1999 but in the complaint, it is stated that the demand was made on 05.01.2000. The above said discrepancy leads the court to lay suspicion over the evidence of PW 2 as regards payment. If it is so, the date of alleged demand would be 13.12.1999 or 14.12.1999 but in the complaint, it is stated that the demand was made on 05.01.2000. The above said discrepancy leads the court to lay suspicion over the evidence of PW 2 as regards payment. In view of the above, this court is of the opinion that the demand of bribe by A.1 from PW 2 is far from proof. 12. The motive on the part of P.W.2 to take vengeance against the accused is manifested by the production of complaints sent by the neighbours of the house LIG 139, alleging that P.W.2 was utilising the house for some other purpose violative of rules by putting up wet-grinders. In the letter sent by P.W.2 to the Service Manager, Tamil Nadu Housing Board, he has admitted that he is running the business of making flour by use of wet-grinders in the house. In a reply dated 9.11.99, the Executive Officer, Tamil Nadu Housing Board, communicated him stating that since the residential house was used by P.W.2 for some other purpose, the allotment made in favour of his son was cancelled and he was directed to handover the possession of the house to the Tamil Nadu Housing Board. Exs.D-3 and D-4 are letters of request by P.W.2 to re-consider the cancellation order in Ex.D-2. Ex.D-5 is extract of complaint filed by the Municipality Commissioner, Hosur before the Judicial Magistrate No.2 Court, Hosur in STC No.342 of 1999, against P.W.2 under Tamil Nadu Public Health Act 1939. In the said case, he was imposed fine of Rs.50/- after finding guilty under the said Act. The copy of the judgment is Ex.D-6. In another similar case also P.W.2 was found guilty and he was imposed a fine of Rs.700/- by the same Court in STC No.1129 of 2000. Exs.D-7 and D-8 are the STC Register extract and judgment extract. Ex.D-10 is one of the complaints sent by a neighbour making allegations against P.W.2 for running wet-grinders in the house by means of which public nuisance is caused. Ex.D-11 is also a letter of some of the residents around the house LIG-139 making allegations of nuisance caused by P.W.2 by running wet-grinders without authority. Exs.D-13 and D-19 are the communications from the Tamil Nadu Housing Board, directing P.W.2 to remove the nuisance and to vacate the house. 13. Ex.D-11 is also a letter of some of the residents around the house LIG-139 making allegations of nuisance caused by P.W.2 by running wet-grinders without authority. Exs.D-13 and D-19 are the communications from the Tamil Nadu Housing Board, directing P.W.2 to remove the nuisance and to vacate the house. 13. It is the version of the accused that P.W.2 was under impression that both the accused were responsible for taking action against him by Tamil Nadu Housing Board and hence he developed grudge over them and hence he lodged the complaint. The above said documents would show that Tamil Nadu Housing Board has taken steps against him and he was also found guilty by the Court on complaints made by Hosur Municipality. But there is no nexus between the action initiated by the Tamil Nadu Housing Board against P.W.2 and the first accused. From Ex.D-12 letter sent by Tamil Nadu Housing Board to P.W.2, it transpires that the second accused is also a party in the preparation of complaints against P.W.2. This letter shows the signature of A-2 as one among the 3 staff who have prepared this letter. By this letter, P.W.2 was directed to remove wet-grinders in default he will be vacated. The motive on the part of P.W.2 is shown as above. 14. As far as payment of money by P.W.2 to the second accused is concerned, it is the case of the prosecution that P.W.2 alongwith P.W.4 went to the room of the first accused and pay the amount. But P.W.2 did not say anything about P.W.4 also accompanied him to the room of A-1. His evidence is significantly silent in this regard. In this juncture, it is to be necessarily observed that the evidence of P.W.2 remains uncorroborated as to his meeting with A-1 on the date of trap. 15. There is no evidence on record to show that second accused demanded bribe money from P.W.2. Hence, the alleged offence against him is not complete. Otherwise, the prosecution should have proved that on the direction of A-1, A-2 received the amount. It is also not proved. 16. It is stated that second accused after receiving money from P.W.2 gave it to Saraswathi, the tea stall owner, examined as P.W.5. Hence, the alleged offence against him is not complete. Otherwise, the prosecution should have proved that on the direction of A-1, A-2 received the amount. It is also not proved. 16. It is stated that second accused after receiving money from P.W.2 gave it to Saraswathi, the tea stall owner, examined as P.W.5. Even though she turned hostile to prosecution, when she was cross examined by prosecution, she would say that 2nd accused gave money to her and told that after her husband had come, the account may be settled and that 10 persons came and money was taken from her and she put 4 signatures. The defence side contended that for recovery of money from P.W.5, no mahazar was prepared and no witness was examined properly to prove the recovery of money and hence connecting link is missing in the prosecution case. The arguments has considerable force. P.Ws.4 and 5 only say that 10 persons came and one among them got money from her and she put 4 signatures. This evidence would not prove the recovery of money by the respondent police personnel. 17. It is also stated that phenolphthalein test should have been conducted on P.W.5 also to show that the alleged bribe money was received from A-2. 18. The learned Senior Counsel for the respondents would argue that when the appellate court is dealing with a case of acquittal, it has to record reasons that the findings of the court below are perverse, that material evidence was ignored by the trial Court and that miscarriage of justice has been caused by acquittal. In support of his contention, he placed reliance upon a judgment of Apex Court in 1996 Crl.L.J. 2867 [Ramesh Babulal Doshi v. State of Gujaraj] wherein Their Lordships have observed thus: "The mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. while sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then — and then only — reappraise the evidence to arrive at its own conclusions." 19. The same judgment has been referred in a subsequent decision of the Supreme Court in 2004 SCC (Cri) 1435 [Bihari Nth Goswami v. Shiv Kumar Singh and others] and the same principles have been reiterated by the Supreme Court. 20. In this case, when the facts are weighed by this Court, it is crystal clear that the findings recorded by the trial Court are not perverse and judgment is based on proper discussion on the materials available. Hence, there is no need to upset the findings of the Court below. In the foregoing paragraphs, this Court has found that the demand for bribe on the part of the accused has not been proved by the prosecution, that there was motive on the part of P.W.2 against the accused and that the material facts stated by P.W.2 remain without corroboration, that the evidence on record are also with remarkable discrepancies. No valid ground is made out to disturb the judgment of the trial Court and it has to be confirmed and accordingly it is confirmed. The prosecution has woefully failed to establish the charges framed against the accused. This point is answered as indicated above. 21. In fine, the Criminal Appeal is dismissed, confirming the judgment of acquittal passed by the trial Court.