JUDGMENT : This appeal is preferred by the State being aggrieved by and challenging the legality and correctness of the judgment, dated 30th day of June 2016, passed in Spl. KLA. C.C. No.4/2015, by the III Additional District and Sessions Judge (Special Judge for Lokayukta & CBI Cases), Dharwad. 2. Brief facts of the prosecution case are that on 20.06.2014, the complainant/PI, Lokayukta Police, received a credible information that the accused, who was working as an Assistant Executive Engineer, ESI Hospital, had collected the bribe amount from the contractor and he was proceeding towards Hubli Office and then to Davangere. Therefore, the complainant got registered the complaint on behalf of the State and submitted the FIR to the Court. He obtained a search warrant against the accused. He secured two panch witnesses. The complainant furnished the copies of the complaint to the panch witnesses. After reading over the complaint allegations both the panch witnesses agreed to act as panch witnesses. Therefore, the complainant/IO formed a team to tap the accused. Accordingly, the trap team went in two vehicles to the office of the accused situated at Hubli. They notice that key was put to the office of the accused. Therefore, the complainant and trap team went to railway station, Hubli and had kept watch near at the entrance of the gate. A person dropped the accused in front of the railway station at portico. Immediately, the IO and trap team caught hold the accused and disclosed their identity. The complainant checked the bag in the hands of the accused and found an amount of Rs.50,000/- containing 100 notes of Rs.500/- denomination each. On enquiry, the accused disclosed that one Prashant Reddy had given the said amount to him towards his contract work. The complainant felt that the spot was not a proper place to draw the mahazar. Hence, he took the accused along with the bag and trap team to the Circuit House, Hubli. Meanwhile, the complainant got videographed all the scenes. He has also got photographed the scenes with the help of a digital camera. He sent the video and digital camera to get it converted into CDs through his constable. He prepared a rough hand sketch of the spot. The entire trap team headed by the complainant/IO along with accused reached the Circuit House, Hubli. He has also got photographed the scenes with the help of a digital camera. He sent the video and digital camera to get it converted into CDs through his constable. He prepared a rough hand sketch of the spot. The entire trap team headed by the complainant/IO along with accused reached the Circuit House, Hubli. On search, the accused was found in possession of cash of Rs.50,000/- along with his other personal belongings like his ID card, clothes and official records etc. the IO secured Assistant Executive Engineer to the Circuit House, Hubli. Then the complainant/IO took the entire trap team along with the accused towards the office of the accused at Hubli. On the way he got the xerox copies of the slip appearing on the bundle of the notes. He obtained the signatures of the panchas on the xerox copies of the bank slip. Then, all of them visited the office of the accused. The IO searched the almirah of the accused and collected his SR and attendance register. The IO also collected the documents from the office of accused regarding the works done by the contractor by name Prashant Reddy. He recorded the statements of witnesses. The accused was produced before the Court. The accused was charged with the alleged offences punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 3. The prosecution, in order to prove its case, examined in all 12 witnesses as PWs.1to 12, got marked the documents as Ex.P.1 to Ex.P.54 and Ex.P.54(a) and also material objects MOs.1 and 2. On behalf of the defence, no witness was examined nor any document was got marked. 4. After considering the oral as well as the documentary evidence on record, the learned Special Judge has come to the conclusion that the prosecution failed to prove its case beyond all reasonable doubt and hence acquitted the accused for the said offence. Hence, the State is before this Court in this appeal. 5. The appellant has challenged the judgment of the Trial Court on various grounds as mentioned in the appeal memorandum. 6. Heard the arguments of the learned counsel appearing for the appellant/complainant and also the learned counsel appearing for the respondent/accused. 7. Hence, the State is before this Court in this appeal. 5. The appellant has challenged the judgment of the Trial Court on various grounds as mentioned in the appeal memorandum. 6. Heard the arguments of the learned counsel appearing for the appellant/complainant and also the learned counsel appearing for the respondent/accused. 7. Learned Special Public Prosecutor appearing for the appellant, during the course of the arguments made the submission that is not a case of making a demand and accepting the bribe amount and the complainant approached the Lokayukta office with the complaint, then conducting a entrustment mahazar for producing the tainted currency notes and then proceeding to the spot for conducting the raid. Learned Special Public Prosecutor submitted that the trial Court has completely misunderstood the proceedings and wrongly read the evidence and has wrongly come to the conclusion that the prosecution was not able to prove the charges. He made the submission that for the work done by P.W.7, this accused person was always insisting that he has to pay certain percentage of amount to him by way of bribe, and he made the said demand not only in respect of the present work, but even for the earlier work also. Learned Special Public Prosecutor made the submission that the accused person demanded payment of Rs.50,000/- for submitting the bills for the purpose of clearing the permission to the work done by the complainant-P.W.7. Hence, he requested one of his friends to pay Rs.50,000/- which was transferred to the bank account of P.W.7, and thereafter, P.W.7 withdrew the said amount of Rs.50,000/- and paid it to the respondent/accused. Learned Spl. Public Prosecutor, in this regard, made the submission that the document Ex.P.12, which is the xerox copy of the front side and rear side of the currency note of the denomination of Rs.500/-, that the very amount which he withdrew from the bank was recovered from the possession of the accused person during the trap proceedings. Hence, he submitted that this aspect of the matter has been completely overlooked by the learned Special Judge while appreciating the evidence on the side of the prosecution. He also submitted that the respondent/accused gave his explanation as per Ex.P.1, wherein he has clearly admitted that he has received an amount of Rs.50,000/- which is paid by Prashant Reddy. Hence, he submitted that this aspect of the matter has been completely overlooked by the learned Special Judge while appreciating the evidence on the side of the prosecution. He also submitted that the respondent/accused gave his explanation as per Ex.P.1, wherein he has clearly admitted that he has received an amount of Rs.50,000/- which is paid by Prashant Reddy. He also refers to the evidence of panch witnesses for the recovery panchanama and made the submission that even the evidence of panch witnesses clearly go to show that in their presence, an amount of Rs.50,000/- was recovered. Hence, he made the submission that, in spite of these materials placed on record before the Trial Court, the Trial Court committed a serious illegality while appreciating the evidence on record and coming to a wrong conclusion in the matter. Hence, the judgment and order of acquittal passed by the learned Special Judge is not at all sustainable in law and it is also perverse and capricious view taken by the learned Sessions Judge. Hence, he submitted to allow the appeal and to set aside the judgment and order of acquittal and to convict the accused for the said offences. 8. Per contra, learned counsel appearing for the respondent-accused, during the course of arguments, made the submission that whenever a judgment of acquittal is passed by the Trial Court, the First Appellate Court will have to be slow in reversing such judgments passed by the Trial Courts. He further made the submission, firstly, that there is no proof of demand and acceptance of the said bribe as required under Section 7 and 13(1)(d) of the Prevention of Corruption Act. It is also his contention that to attract the provisions of Section 7, a public servant must receive any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any do a favour or disfavour in respect of official work, and, in the instant case, no such work was pending with the respondent-accused, therefore, this itself clearly goes to show that there was no reason or occasion for the respondent-accused to demand the said amount from P.W.7. Referring to the explanation said to have been made by the accused, as per Ex.P.1, learned counsel submitted that Ex.P.1 is hit by Section 26 of the Evidence Act and it is not admissible in evidence. Referring to the explanation said to have been made by the accused, as per Ex.P.1, learned counsel submitted that Ex.P.1 is hit by Section 26 of the Evidence Act and it is not admissible in evidence. in this connection, the learned counsel submitted that the accused is said to have been apprehended by the Lokayukta at about 5.15 p.m. on that day i.e. on 20.06.2014 and the panchnama proceedings clearly go to show that the complainant along with trap team, the accused with the bag, went to the Circuit House for the purpose of drawing mahazar proceedings as the spot where the respondent-accused was caught was not proper. Hence, he made the submission that it is an undisputed fact that, even according to the prosecution, Ex.P.1, the explanation letter written by the accused, is obtained in the Circuit House, by which time, the accused was already in the police custody. Therefore, he made the submission that any statement by an accused person in the custody of the police is not admissible in evidence. Apart from that, referring to the evidence of Police Inspector, he made the submission about the circumstances in which the statement was obtained from the respondent-accused. He submitted that it is the police who told the accused person that he has to write this Ex.P.1 and the contents thereof in the manner as told or suggested by the police. Hence, it is his contention that even looking to the evidence placed on record, the alleged explanation, even if it is accepted for the sake of appreciation of case but without admitting the contents, is not going to help the prosecution case. The further contention of the learned counsel is that referring to the evidence of P.W.6, who is the only alleged eyewitness for the payment of bribe amount to the respondent/accused, he has consistently admitted in the cross-examination that number of times on number of occasions, though he personally met the respondent/accused, the respondent/accused never demanded any bribe amount from him; but, only over phone, the respondent/accused demanded payment of bribe amount. In this connection, learned counsel made the submission that, when that is so, it is the bounden duty of the Investigating Officer to secure the call details and the CDRS in connection with the conversation between the complainant and the accused persons and so also the phone numbers of both, the accused and the complainant. In this connection, learned counsel made the submission that, when that is so, it is the bounden duty of the Investigating Officer to secure the call details and the CDRS in connection with the conversation between the complainant and the accused persons and so also the phone numbers of both, the accused and the complainant. This is why, because the Lokayukta Police as well as the complainant have colluded with each other in order to book a false case against the respondent-accused. Counsel also drew the attention of this Court to the oral evidence of P.W.7 who deposed before the Court that the respondent/accused got changed the work done by us for about 8-10 times and because of that reason, he became angry towards the accused and there was enmity. Hence, he made the submission that this portion of the evidence also clearly go to show the involvement of the accused in the case was to wreck vengeance against him and no such incident had taken place. He also made the submission that when immediately the accused person was questioned by the Lokayukta Police about the amount, the respondent/accused claimed that it was his amount. Therefore, he made the submission that this statement of the accused person is relevant and admissible as part of the same transaction as per Section 6 of the Indian Evidence Act. In this connection, he also drew the attention of this Court to the relevant portion of the evidence of the witnesses namely P.Ws.11, 3, 6 and thus made the submission that looking to the cross-examination portion in their evidence, it is clear that it is totally a false case booked against the respondent/accused even though no such incident had taken place, which the prosecution states to have taken place. He also relied upon the order, dated 5th February 2013, passed by the Division Bench of this Court in Crl. P. No.15941/2012 C/w Crl. P. No.15852/2012. He also relied on another judgment of Punjab & Haryana High Court rendered in the case of State of Punjab Vs. Ram Juari in CRA-S No.1652-SBA of 2004, decided on 09.03.2015 and also the judgment of Hon’ble Apex Court rendered in the case of C.K. Dasegowda & Ors. Vs. State of Karnataka (Criminal Appeal No.1381 of 2014, decided on 15.07.2014). 9. Ram Juari in CRA-S No.1652-SBA of 2004, decided on 09.03.2015 and also the judgment of Hon’ble Apex Court rendered in the case of C.K. Dasegowda & Ors. Vs. State of Karnataka (Criminal Appeal No.1381 of 2014, decided on 15.07.2014). 9. I have perused the grounds urged in the appeal memorandum, judgment and order of acquittal passed by the learned Special Judge, oral evidence of PWs1 to 12, documents produced in the case on the side of the prosecution before the Special Judge and also considered the submissions made by the learned counsel on both the sides at the Bar. 10. The charge leveled against the accused person in the case is under Section 7 and 13(1)(d) of the Prevention of Corruption Act. Section 7 of the Prevention of Corruption Act reads as under:- 7. Public servant taking gratification other than legal remuneration in respect of an official act.- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than [Three years] but which may extend to [seven years] and shall also be liable to fine. (Explanations)- (a) “Expecting to be a public servant”. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section. (b) “Gratification”. The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) “Legal remuneration”. (b) “Gratification”. The word “gratification” is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) “Legal remuneration”. The words “legal remuneration” are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organisation, which he serves, to accept. (d) “A motive or reward for doing”. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression. (e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section. So also Section 13(1)(d) reads as under:- 13(1) (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or 11. Looking to these provisions and as it is rightly submitted by the learned counsel appearing for the respondent/accused, the prosecution has to establish that there was a demand for the bribe amount in the nature of illegal gratification apart from his salary and this should be in order to show the official favour to the complainant or any other person on the side of the complainant in respect of the pending work with the respondent/accused. Referring to the oral evidence of the prosecution witnesses in order to ascertain whether any such work was pending with the respondent/accused let me refer to the evidence portion. In this connection, the evidence of PW3 is relevant who is Executive Engineer. In the cross-examination portion at Para No.4 or Page No.3 of his deposition, he has deposed as under:- “It is true to suggest that work of the accused only to write MB book and then submit it to Divisional Office for sanction of payment. In this connection, the evidence of PW3 is relevant who is Executive Engineer. In the cross-examination portion at Para No.4 or Page No.3 of his deposition, he has deposed as under:- “It is true to suggest that work of the accused only to write MB book and then submit it to Divisional Office for sanction of payment. It is true to suggest that the work of the payment with Executive Engineer, Divisional Office, Bengaluru. It is true to suggest that prior to two months of the incident in this case i.e. 20.06.2014 the work of Prashant Reddy were completed and his MB book has been submitted to Divisional Office, Bengaluru. It is true to suggest that after submission of MB book there is no question of any work to Sri Prashant Reddy in respect of that work. It is true to suggest that without submission of MB book no bill be sanctioned by the Divisional Office. It is true to suggest that as on 20.06.2014 no work of Prashant Retty was pending before the accused.” But perusing the cross-examination portion at Para No.14, the last three lines in that paragraph are to the effect that “it is true to suggest that as on the alleged date of offence no work of mine was pending before the office of the accused or before the accused.” 12. Looking to the evidence of PW3, who is an important witness acting as Executive Engineer in the said establishment himself deposed that there was no work pending of the Prashant Reddy either with the accused or in their office as on 20.06.2014 the alleged date of the incident. Not only that his evidence also goes to show that two months early prior to 20.06.2014 the MB book and all other requirements have been already complied and sent to Bengaluru to facilitate to sanction the bill of the complainant in the case. So this clearly goes to show that no work of the complainant was pending. Now the question is when no such work is pending what is the motive or the reason for the respondent/accused to insist the complainant to pay Rs.50,000/-. This has to be satisfactorily established or proved by the prosecution with cogent and acceptable evidence. 13. So this clearly goes to show that no work of the complainant was pending. Now the question is when no such work is pending what is the motive or the reason for the respondent/accused to insist the complainant to pay Rs.50,000/-. This has to be satisfactorily established or proved by the prosecution with cogent and acceptable evidence. 13. As it is submitted by the learned counsel appearing for the respondent that the important witness in this case is PW7, the complainant, who claims that he is the person who has handed over the money of Rs.50,000/- to the respondent/accused. In the examination-in-chief, it is no doubt true referring to Para No.5 to 8 of his deposition he has mentioned that the accused persons contacted him over phone and he has demanded a sum of Rs.50,000/- towards the present work and balance of Rs.20,000/- for previous work. Thus, the accused demanded in all Rs.70,000/- from him. The next paragraph also goes to show wherein he has deposed that he requested his friend one Jagadish Reddy to help him Rs.50,000/- and said Jagadish Reddy transferred Rs.50,000/- to his account at Karnataka Bank, Madhura Estate Branch at Hubli, then he withdrawn the amount of Rs.50,000/- and he has paid it to the respondent/accused, which amount was paid to him in bundle by the bank authorities containing currency notes of 500 denomination each. In para No.8, he has deposed on the way to the railway station on demand of accused he paid the said cash of Rs.50,000/- i.e. the same bundle of notes drawn from the Karnataka Bank. 14. In para No.18 of the deposition of PW7, wherein the complainant has deposed “it is true to suggest that I have not stated before the Investigation Officer in my statement that inspite of several requests the accused continued his demand of bribe from me.” In Para No.23 of his deposition, it is to the following effect. “I do not remember particulars of alleged demand by the accused on last occasion. I do not remember the times of payment of bribe to the accused. Accused has demanded the bribe amount from him through his phone, I use to meet the accused personally on several occasions during my such meets accused personally did not demand the bribe from me.” 15. I do not remember the times of payment of bribe to the accused. Accused has demanded the bribe amount from him through his phone, I use to meet the accused personally on several occasions during my such meets accused personally did not demand the bribe from me.” 15. In Para No.24, he deposed “it is true to suggest that accused never demanded bribe from me at 8% or 9% for the work done by me.” So this evidence of the PW7 himself makes it clear that there was no such demand made by the accused person. Even if he deposed that the demand was only over the phone message and as it is submitted by the learned counsel for the respondent and even according to the prosecution also it is an admitted fact that during investigation the phone numbers of the accused as well as the complainant/PW7 were not at all collected the call details and the CDRS about the conversation for the purpose of ascertaining even the voice, all these materials were not at all collected by the Investigation Officer during investigation. When there is no such material, there is no basis for the Court to accept the contention of the prosecution that the demand for money was over the phone message and even this aspect is also not satisfactorily established by the prosecution by placing the acceptable material. With regard to Ex.P1 is concerned, I refer to the evidence of PW11 and looking to his evidence also, it is clear that it was obtained in the Circuit House at Hubli and its contents are written by the respondent/accused as it was told by them. Therefore, the document-Ex.P1 cannot be said to be established by the prosecution that it is on the free will and volition of the accused persons that he wrote the contents in such manner and it is very important to note that when it was obtained, the accused was very much in the custody of the Lokayukta Police. Hence, no importance can be attached to the document/Ex.P1 is concerned. Looking to the materials placed on record, it is no doubt true perusing the evidence of the panch witnesses/PW1 and 2, they have stated about the recovery of the money from the possession of the accused person. Hence, no importance can be attached to the document/Ex.P1 is concerned. Looking to the materials placed on record, it is no doubt true perusing the evidence of the panch witnesses/PW1 and 2, they have stated about the recovery of the money from the possession of the accused person. Mere recovery of the amount cannot be the proof of the offence unless and until it is established that there is a demand and acceptance of the bribe amount and such amount was recovered from the possession of the accused person. But in the case on hand, when the person who is the complainant himself has not deposed that he has paid such bribe amount and even he has deposed to the effect that he does not know the date, time and place of the payment of such money to the accused person. His evidence is also not worth, believable and acceptable so far as the story of the prosecution that there is a payment of Rs.50,000/- bribe amount by the complainant/Prashant Reddy to the respondent/ accused. It is vaguely stated that he paid such amount and even looking to the evidence of the Manager of the Bank, who has been examined as PW6 in the cross-examination portion, he deposed that now he has seen Ex.P12, on seeing the same one cannot say that to whom it has been issued. He further deposed it is true to suggest that any other person can also withdraw the amount by presenting self-drawn cheque, which contains the signature of the drawer on the back of the cheque. It is true to suggest that Ex.P8/cheque does not contain contents of its back portion. On seeing Ex.P39, he cannot say that in all five transactions were taken place in the account of Prashant Reddy. The another important evidence, which he has deposed he cannot say personally as to who has withdrawn the said amount. Looking to this evidence of PW6 even the case of the prosecution that the bundle of notes of Rs.50,000/- having the bank slip said to have been withdrawn by PW7 itself has been given to respondent/ accused. No numbers are noted and even there is no acceptable evidence regarding the date, time and place of commission of the alleged offence. Looking to this evidence of PW6 even the case of the prosecution that the bundle of notes of Rs.50,000/- having the bank slip said to have been withdrawn by PW7 itself has been given to respondent/ accused. No numbers are noted and even there is no acceptable evidence regarding the date, time and place of commission of the alleged offence. Looking to these materials placed on record, the learned Special Judge considered all these aspects of the matter extensively and in detail and looking to the judgment paragraph Nos.32 to 35, he has discussed about all these aspects of the matter and he rightly disbelieved the case of the prosecution. Looking to the reasoning adopted by the learned Special Judge in his judgment, I do not find any illegality in the said judgment nor there is any perverse or capricious view taken by the learned Sessions Judge. Therefore, there are no legal and valid grounds for this Court to interfere into the judgment of the trial court either to set aside or to modify the said judgment. There is no merit in the appeal. Accordingly, the same is dismissed confirming the judgment and order of acquittal passed by the learned Special Judge.