JUDGMENT The appellant is the sole accused in Special Case No.2 of 2006 on the file of the Learned Special Judge under the Prevention of Corruption Act cum Chief Judicial Magistrate, Thoothukudi, Thoothukudi District. He stood charged for the offences punishable under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988. By judgment dated 17.10.2008, the trial Court found him guilty under both charges and sentenced him to undergo rigorous imprisonment for two years and to pay a fine of Rs.5000/-, in default to undergo simple imprisonment for three months for the offence under Sections 13(2) r/w 13(1)(d) of the prevention of Corruption Act. However, the trial Court did not impose separate sentence for the offence under Section 7 of the Prevention of Corruption Act though he was convicted under the said provision also. Challenging the said conviction and sentence, the appellant is before this Court with this Criminal Appeal. 2. The case of the prosecution in brief is as follows: (i) The appellant, during the year 2004 – 2005 was working as a Depot Manager in the TASMAC limited, Thoothukudi. Admittedly, he was a public servant in terms of the provisions of the Prevention of Corruption Act. P.W.2 in this case is one Mr.Paulraj. He was a Contractor to whom a contract had been awarded by the TASMAC for transporting bottles from TASMAC godown to the retail shops. On account of the work performed by P.W.2, a sum of Rs.1,18,837/-was due. As the Depot Manager, it was the function of the appellant to pass cheque for the said amount and issue the same to the Contractor. In this case, when P.W.2 met the accused on 21.01.2005 at his office for the purpose of issuing cheque for Rs.1,18,837/-, the appellant demanded a sum of Rs.5,000/-as illegal gratification. It is further alleged that on 27.01.2005, P.W.2 gave Rs.2,000/-to Mr.Ravi @ Ravichandran (P.W.9) and wanted him to go and hand over the money to the accused/appellant. Accordingly, on 27.01.2005, between 1.00 p.m., to 2.00 p.m., P.W.9 handed over Rs.2,000/-to the appellant, which he received as illegal gratification. Again, on 01.02.2005 at about 10.45 a.m., when P.W.2 contacted the accused/appellant through his cellphone and requested him to issue cheque, he demanded the balance of Rs.3,000/-as bribe for the purpose of issuing the cheque. P.W.2 thereafter, decided to make a complaint about the above illegal demand made by the accused/appellant. Again, on 01.02.2005 at about 10.45 a.m., when P.W.2 contacted the accused/appellant through his cellphone and requested him to issue cheque, he demanded the balance of Rs.3,000/-as bribe for the purpose of issuing the cheque. P.W.2 thereafter, decided to make a complaint about the above illegal demand made by the accused/appellant. He consulted his brother P.W.9 and then, he proceeded to Vigilance and Anti-Corruption Police Station at Thoothukudi. (ii) P.W.11 was the then Deputy Superintendent of Police attached to Thoothukudi Vigilance and Anti-Corruption Police Station. P.W.2 made a complaint on 01.02.2005 at 1.00 p.m under Ex.P5. P.W. 11 registered a case on the said complaint in Crime No.1 of 2005 under Section 7 of the Prevention of Corruption Act, 1988. Then, at 2.30 p.m., on his request, P.W.3 and another witness appeared before him to assist him in the trap proceedings. P.W.11, conducted demonstration of the phenolphthalein test to P.Ws.2 and 3 and the other witness. Then, he received Rs.3,000/-from P.W.2 (100 rupee currency notes, 30 notes). P.W.1 stained the currency notes with phenolphthalein powder and handed over the same again to P.W.2. For the above acts, mahazars were prepared in the presence of the witnesses. Then, P.W.11 took P.Ws.2, 3 and other witness along with few other policemen to the office of the appellant. P.Ws.2 and 3 alone went into the office at about 5.00 p.m. But the accused was not available at his office. At about 8.45 p.m., P.W.2 contacted the accused over cell-phone. During the said talk, the accused told him that he was in Kovilpatti then and he would come to the old bus-stand at about 10.00 p.m., and asked P.W.2 to wait near the bus-stop for the buses to Tiruchendur. P.Ws.2 and 3 were waiting in the office of the accused till 9.45 p.m. At 9.45 p.m., the accused gave a missed call through his cell-phone. Then, on the advise of P.W.11, P.Ws.2 and 3 went to the old bus-stand at Thoothukudi. When they went near the Tiruchendur bus-stop, they found the accused standing there. On seeing P.W.2, the accused enquired as to whether P.W.2 had come with the money that he had earlier demanded. Immediately, P.W.2 took out the above stated currency notes amounting to Rs.3,000/-and handed over the same to the accused. When they went near the Tiruchendur bus-stop, they found the accused standing there. On seeing P.W.2, the accused enquired as to whether P.W.2 had come with the money that he had earlier demanded. Immediately, P.W.2 took out the above stated currency notes amounting to Rs.3,000/-and handed over the same to the accused. The accused received the same with his right hand and changed the same to his left hand and kept it in a rexine hand bag by opening the zip. When this happened, it was 10.05 p.m. P.W.2 immediately made a signal to the Deputy Superintendent of Police. On receiving the signal, P.W.11, along with the police and the other witnesses rushed to the place where the accused was standing. P.W.2 narrated the happenings to P.W.11. Then, P.W.11 took the accused into custody and brought him to his office. He also took P.W.3 and the other witness with him. On reaching Thoothukudi Vigilance and Anti-corruption Police Station, P.W. 11 conducted phenolphthalein test for the right hand of the accused. When the fingers of the right hand were dipped into sodium carbonate solution, it turned into pink colour, thereby indicating the presence of phenolphthalein powder on the fingers of the right hand of the accused. P.W.11 collected the said solution in a bottle and sealed the same in the presence of witnesses. Again, he prepared sodium carbonate solution in another tumbler and made the accused to dip his left hand fingers. This time, there was no colour change, thereby indicating that there was no phenolphthalein powder on his left hand fingers. P.W.11 collected the same in two bottles and sealed the same. He recovered both the bottles under a mahazar. Then, he enquired the accused about the money given by P.W.2. The accused opened the bag, took put the currency notes and placed the same on the table. When the numbers of the currency notes were compared to the numbers mentioned in the mahazar, they tallied. P.W.11 recovered the same under mahazar. Then, he examined P.Ws.2, 3 and 9 and few more witnesses and recorded their statements. Then he forwarded the accused for judicial remand and also handed over the bottles containing sodium carbonate solution. At his request, those bottles were sent for chemical examination. (iii)P.W.10 Mrs. P.W.11 recovered the same under mahazar. Then, he examined P.Ws.2, 3 and 9 and few more witnesses and recorded their statements. Then he forwarded the accused for judicial remand and also handed over the bottles containing sodium carbonate solution. At his request, those bottles were sent for chemical examination. (iii)P.W.10 Mrs. Banumathi, the Scientific Assistant in the Government Forensic Lab, Chennai, on scientifically analysing the sodium carbonate solutions, gave opinion that the solution contained in both the bottles proved the presence of phenolphthalein powder. P.W. 11 then, handed over the investigation to P.W.12. (iv) P.W.12, examined the Officials from the TASMAC Limited, Thoothukudi, in respect of the above amount due and the pending file. (v) P.W.13 continued the investigation after P.W.12. After getting necessary sanction from P.W.1, the then District Collector, Thoothukudi, P.W.13 finally laid charge sheet against the accused. 3. Based on the above police report, the trial Court framed charges as detailed above and the accused denied the same. In order to prove the case, on the side of the prosecution, as many as 13 witnesses were examined and 27 documents were exhibited and 23 material objects were also marked. Out of the said witnesses, P.W. 1, the then District Collector, Thoothukudi, has spoken about the sanction granted by him for launching prosecution as against the accused, as required under Section 19 of the Prevention of Corruption Act. P.W.2 has vividly spoken about the alleged demand for illegal gratification made by the appellant and the trap proceedings during which, according to him, the appellant demanded and received Rs.3,000/-as illegal gratification. P.W.3 is an Official witness, who was used for trap proceedings. He has spoken about the entire trap proceedings including the demand made by the accused and the receipt of Rs.3,000/-by him as illegal gratification from P.W.2. P.Ws.4, 5, 7 and 8 are the officials of TASMAC, Thoothukudi, who have spoken about the file relating to the contract awarded to P.W.2, the work done by him, the claim made by him and the fact that a sum of Rs.1,18,837/-was due to P.W.2. P.Ws.4, 5, 7 and 8 are the officials of TASMAC, Thoothukudi, who have spoken about the file relating to the contract awarded to P.W.2, the work done by him, the claim made by him and the fact that a sum of Rs.1,18,837/-was due to P.W.2. P.W.6 is the Legal Advisor to Airtel Limited, who has spoken about the fact that as per the call details maintained by his Company, on 01.02.2005, at 10.44 a.m., from the cell-phone No.9894090111, a call was made to the cell-phone No. 9443462615 and again at 8.40 p.m., another call was made from the former number to the latter number. Finally, at 9.43 p.m., another call had been similarly made. He has also proved the call details. P.W.9 Mr.Ravi @ Ravichandran, who is the brother P.W.2 has spoken about the demand for Rs.5,000/-as illegal gratification and Rs.2,000/-allegedly paid by him to the accused. P.W.10 is the Scientific Assistant, who has spoken about the fact that both the solutions of sodium carbonate contained phenolphthalein powder. P.W.11 is the Trap Laying Officer and he has spoken about the trap proceedings. P.W.12 has spoken about the registration of case and the trap and P.W.13 is the Investigating Officer,who continued the investigation and he has spoken about the laying of charge sheet. 4. When the above incriminating materials were put to the accused under Section 313 Cr.P.C., he denied the same as false. According to him, P.W.2 had a very strong motive against him, because he was responsible for the cancellation of the contract awarded to P.W.2. He has further stated that P.W.2 was so inimical towards him and because of that enmity, he made the false complaint. He has further stated that at the time of trap, when he was standing at the old bus-stand without his knowledge, currency notes were inserted into his handbag. He has further stated that he was taken to Vigilance and Anti-corruption police station where he was asked to take out the currency notes from the handbag and thereafter only phenolphthalein tests were conducted to his fingers. Thus according to him, the entire case is false. However, he did not choose to examine any witness on his side nor produce any documents. Having considered the above materials, the trial Court found him guilty under both the charges. Thus according to him, the entire case is false. However, he did not choose to examine any witness on his side nor produce any documents. Having considered the above materials, the trial Court found him guilty under both the charges. But, the trial Court imposed sentence for the offence under Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and strangely did not impose any sentence for the offence under Section 7 Prevention of Corruption Act, 1988. That is how the appellant is before this Court with this Criminal Appeal challenging the said conviction and sentence. 5. I have heard the learned Senior Counsel appearing for the appellant and the learned Additional Public Prosecutor appearing for the respondent State and also perused the records carefully. 6. The learned senior counsel appearing for the appellant would submit that in respect of the alleged demand for illegal gratification to the tune of Rs.5,000/-, there is no consistent and acceptable evidence. He would point out that as per the charge framed, the alleged demand for Rs.5,000/-was made on 21.01.2005. But, according to P.W.2, the said demand was made on 20.01.2005 in the presence of P.W.9. The learned senior counsel would further point out that according to P.W.9, the said demand was made on 21.11.2004. Thus, there is no consistent evidence on this aspect. 7. The learned senior counsel would further submit that according to the case of the prosecution, payment of Rs.2,000/-as illegal gratification was made on 27.01.2005. But, P.W.2 in his evidence has not stated as to when he paid Rs.2,000/-to P.W.9 asking him to pay the same to the appellant/accused. The learned senior counsel would further point out that P.W.9 has stated that he paid Rs. 2,000/-to the appellant on 27.11.2004 itself. Thus relating to payment of Rs.2,000/-also there are material contradictions, the learned senior counsel pointed out. 8. The learned senior counsel would nextly contend that the whole edifice of the prosecution case is that Rs.5,000/-was demanded by the accused allegedly for the purpose of issuing cheque to P.W.2 for a sum of Rs.1,18,837/-. But, according to Ex.P13, cheque was received by P.W.2 as early as on 19.01.2005 itself. This has been spoken to by P.W.5 and P.W.13 also. The learned senior counsel would further submit that since cheque had been issued on 19.01.2005 itself, there would have been no occasion for the accused to demand Rs. But, according to Ex.P13, cheque was received by P.W.2 as early as on 19.01.2005 itself. This has been spoken to by P.W.5 and P.W.13 also. The learned senior counsel would further submit that since cheque had been issued on 19.01.2005 itself, there would have been no occasion for the accused to demand Rs. 5,000/-on 21.01.2005 and to make further demand for Rs.3,000/-on 01.02.2005. Thus, according to the learned senior counsel, the whole case of the prosecution, which is based on the alleged demand, is false. 9. Turning to trap proceedings, the learned senior counsel would submit that at the time of trap, since it was night time, without the knowledge of the accused, P.W.2 had inserted the currency notes into the rexine bag of the accused. In order to probabilise this defence, the learned senior counsel would point out that P.W.2 is not an interested witness but a motivated witness. The learned senior counsel would further point out that the contract entered into between P.W.2 and the TASMAC Limited was cancelled some time before this occurrence on the report of the appellant as the Depot Manager. This was the cause for P.W.2 to have grudges against the appellant. Then, the learned senior counsel pointed out that P.W.2 has a close relative by name Mr. Amirthaganesan. Mr. Amirthaganesan, had sent a complaint to various authorities against the appellant alleging that he was not properly allotting the loads to the Contractors in an even manner. As a matter of fact, along with the statement under Section 313 Cr. P.C., the appellant had produced one such complaint. The learned senior counsel would further point out that P.W.2 himself had sent a complaint against the appellant on an earlier occasion aggrieved by some action taken by the appellant. Similarly P.W.9, who is the brother of P.W.2 has also had grudges against the appellant. The documents relating to the action taken by the appellant against these witnesses and their complaints have been produced along with the statement of the accused under Section 313 Cr. P.C., which are all official documents about which, there is no dispute. Referring to those documents the learned senior counsel would submit that P.W.2 had enmity and grudges and that was the reason why, he had planned for this case and accordingly, inserted money into the hand bag of the accused. 10. P.C., which are all official documents about which, there is no dispute. Referring to those documents the learned senior counsel would submit that P.W.2 had enmity and grudges and that was the reason why, he had planned for this case and accordingly, inserted money into the hand bag of the accused. 10. The learned senior counsel would lastly contend that had it been true that money was actually received by the appellant as illegal gratification at the old bus-stand at Thoothukudi, nothing would have prevented P.W.11 from recovering the said amount on the spot itself and conduct phenolphthalein test also on the spot itself. Instead, the accused was taken to the police station and tests were conducted after 12.00 midnight. There is no explanation at all for this, the learned senior counsel contended. 11. The learned senior counsel would lastly contend that since in a case under the Prevention of Corruption Act punishment prescribed is stringent, proof should also be very strict. In the instant case, according to the learned senior counsel, the above improbabilities, inherent weaknesses, contradictions etc., pointed out, would go to show that the prosecution has failed to prove the case beyond all reasonable doubts. 12. But the learned Additional Public Prosecutor would vehemently oppose this appeal. According to him, the demand for Rs. 5,000/-as illegal gratification has been categorically spoken to by P.Ws.2 and 9. So far as the discrepancy in the date of visit of P.Ws.2 and 9 to the office of the appellant and the alleged demand made is concerned, it is only a meagre discrepancy and it would not go into the root of the case. The learned Additional Public Prosecutor would further contend that though it may be true that the contract of P.W.2 was cancelled and P.W2, P.W9 and their relative Amirthaganesan had some grievance against the appellant, that cannot be a ground to reject the whole case of the prosecution. 13. The learned Additional Public Prosecutor would further submit that during the trap proceedings not only P.W.2, but P.W.3 also has categorically stated that the accused demanded Rs.3,000/-and received the same at the old bus-stand at Thoothukudi. The learned Additional Public Prosecutor would further submit that absolutely there can be no reason for this Court to reject the evidence of P.W.3, who is an independent witness. The learned Additional Public Prosecutor would further submit that absolutely there can be no reason for this Court to reject the evidence of P.W.3, who is an independent witness. Therefore, according to him, the theory that the money was inserted into the handbag of the appellant without his knowledge in only an invented theory to come out of the clutches of law. Thus according to him, the entire case of the prosecution has been proved beyond all reasonable doubts and therefore, the conviction and sentence imposed on the appellant, does not require interference. 14. I have considered the above submissions. 15. At the outset, I should say as rightly pointed out by the learned senior counsel appearing for the appellant, in a case of this nature, where punishment is so stringent, the proof should be very strict. Keeping in mind this fundamental principle, let us now look into the evidence let in. As pointed out by the learned senior counsel there is discrepancy in respect of the initial demand of Rs.5,000/-made by the accused to P.W.2. According to the charge, the said demand was made on 21.01.2005 at the office of the accused to P.W.2 in the presence of P.W.9. But, during evidence, P.W.2 had categorically stated that he met the accused at his office only on 20.01.2015 and at that time, demand was made in the presence of P.W.9. But, quite contrary to the same, P.W.9 has categorically stated that he went to the office of the accused along with P.W.2 on 21.11.2004 itself and it was only at that time, Rs.5,000/-was demanded by the appellant as illegal gratification. Thus, there is no clear evidence as to when the accused met P.Ws.2 and 9 and demanded illegal gratification to the tune of Rs.5,000/-. 16. According to the charge, a sum of Rs.2,000/-was handed over by P.W.2 to P.W.9 with a direction to him to pay the same to the accused on 27.11.2005. But, P.W.2 has not given clear evidence as to when the said sum of Rs.2,000/-was handed over to P.W.9. But, P.W.9 has stated that the above said sum was handed over to him by P.W.2 on 27.11.2004 itself and it was on that day itself he handed over the same to the accused. Thus, this contradiction in my considered opinion also creates doubt as to whether P.W.9 would have paid Rs.2,000/-to the accused. But, P.W.9 has stated that the above said sum was handed over to him by P.W.2 on 27.11.2004 itself and it was on that day itself he handed over the same to the accused. Thus, this contradiction in my considered opinion also creates doubt as to whether P.W.9 would have paid Rs.2,000/-to the accused. Above all, as pointed out by the learned senior counsel, the whole edifice of the prosecution case is that a sum of Rs. 1,18,837/-was due from the TASMAC to P.W.2. According to the prosecution case, in order to issue cheque to P.W.2, the appellant demanded Rs.5,000/-on 21.01.2005 and received Rs.2,000/-on 27.01.2005 and made further demand on 01.02.2005 for Rs.3,000/-. But quite interestingly, Ex.P.13 shows that cheque was issued to P.W.2 as early as on 19.01.2005 itself. P.W.5 and P.W.13 have categorically admitted during cross-examination that cheque had been issued to P.W.2 for the above said sum on 19.01.2005 itself. There is no reason to disbelieve this documentary evidence under Ex.P.13 and the oral evidence of P.W.5, who is an official in TASMAC and P.W.13, who is the investigation Officer. If this part of the evidence is accepted, then it goes beyond the comprehension of anyone as to how the accused could have made a demand after 19.01.2005 that was on 21.01.2005, 27.01.2005 and 01.02.2005 for the purpose of issuing cheque. Thus, this creates lot of doubts in the case of the prosecution in respect of the demand for illegal gratification. 17. Turning to trap proceedings, the learned senior counsel would submit that P.W.2 had motive and because of the same, he had inserted money into the rexine bag of the accused. Admittedly, the occurrence was during night hours. It is not in evidence that there was sufficient light on the spot. However, since the occurrence was in the bus-stand and therefore, even assuming that there was sufficient light, now the question is whether the money was received by the accused or the same was inserted into his hand bag by P.W.2. The motive stated by the accused assumes much importance for the purpose of deciding this question. It is the admitted case of the prosecution itself that the contract was cancelled at the instance of the accused. Quite naturally, P.W.2 was aggrieved over the same. Then, P.W.2 had sent complaints against the accused on several occasions, it is also in evidence. The motive stated by the accused assumes much importance for the purpose of deciding this question. It is the admitted case of the prosecution itself that the contract was cancelled at the instance of the accused. Quite naturally, P.W.2 was aggrieved over the same. Then, P.W.2 had sent complaints against the accused on several occasions, it is also in evidence. One such document has been produced under Section 313 Cr. P.C. His close relative Amirthaganesan, who is yet another Contractor has also got grievance. He has also sent complaints against the accused and a copy of the complaint has also been produced under Section 313 Cr. P.C. Similarly, P.W.9, who is the brother of P.W.2 has also grudges against the appellant. Thus, from these evidence, it can be easily inferred that P.W.2 and P.W.9 were inimical towards the accused. Apart from that, in the light of the fact that demand has not been proved and that cheque had already been issued on 19.01.2005 itself, it is difficult to believe the very case of the prosecution that on 01.02.2005, the accused demanded Rs.3,000/-and received the same. Though P.W.3 claims to be an independent witness, in view of the above improbabilities, it is difficult to believe him on this aspect. Above all, the amount was allegedly received during trap proceedings in the old bus-stand at Thoothukudi. According to the case of the prosecution, it is not explained to the Court as to why the same was not recovered on the spot and as to why phenolphthalein tests were not conducted on the spot. The accused and the witnesses were taken all the way to the police station and there only after midnight, these tests were conducted, which makes it difficult to believe that the handbag of the accused would not have been opened for such a long time by anybody. The presence of the phenolphthalein powder on the fingers of the accused has proved that the appellant had handled the money. Even P.W.11 has admitted that he asked the accused to open the bag and take out the money from the bag. Now the doubt is whether phenolphthalein tests were conducted before taking the money or after taking the money from the bag. Even P.W.11 has admitted that he asked the accused to open the bag and take out the money from the bag. Now the doubt is whether phenolphthalein tests were conducted before taking the money or after taking the money from the bag. In view of the long delay in conducting phenolphthalein tests, it is doubtful that the accused would not have occasion to handle the money while he was in the police custody. 18. In view of the foregoing discussions, I hold that the prosecution has failed to prove the case beyond all reasonable doubts. Therefore, the conviction imposed on the appellant/accused, cannot be sustained and therefore, the accused is entitled for acquittal. 19. In the result, the Criminal Appeal is allowed and the conviction and sentence imposed on the accused/appellant by judgment dated 17.10.2008 passed in S.C.No.2 of 2006 by the learned Special Judge under the Prevention of Corruption Act cum Chief Judicial Magistrate, Thoothukudi, Thoothukudi District, is set aside and the appellant is acquitted from all the charges levelled against him. Fine amount, if any, paid by the appellant shall be refunded to him. Bail bond, if any, shall stand terminated.