JUDGMENT : The appellant faced trial for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act,1988 (referred to as ‘Act’ for short) as accused no.2 in Spl. Case No.19/2007 on the file of III Addl. District and Sessions Judge, Mysore. The court acquitted him of the offence under Section 7, but convicted him for the offence under Section 13(1)(d) r/w 13(2) of the Act and sentenced him to simple imprisonment for a period of one year and fine of Rs.10,000/with a default sentence period of three months. Hence this appeal by accused no.2. 2. The prosecution case is that PW.1 K.Ramaswamy, his children and brothers made an application to accused No.1 i.e., the Assistant Commissioner of Mysore SubDivision seeking conversion of their agricultural lands into nonagricultural purpose. PW1 alleged that accused no.1 demanded of him a bribe of Rs.1,50,000/for passing conversion order and pursuant to said demand, PW1 gave him Rs.30,000/and assured him of paying the balance. Thereafter PW1 approached the Lokayukta Police, Mysore and made a report to the latter about the demand made by accused no.1 for bribe. They laid a trap on 21.02.2000. On that day when PW1 approached accused no.1 with money of Rs.20,000/, the latter asked him (PW1) to hand over that money to accused No.2 who was working as second division assistant in his office. Accordingly PW1 handed over that money to him and immediately the latter was trapped. When phenolphthalein test was conducted, his hand wash answered positive for the presence of phenolphthalein and therefore both were charge sheeted by the Lokayukta Police. 3. Accused no.1 came to be discharged by the court below because the prosecution had not obtained sanction from the government. The prosecution did not think of applying for sanction once again and accused no.1 was not prosecuted at all thereafter. Only accused No.2 faced trial. 4. The learned judge of the trial court has recorded reasons that although accused no.2 did not demand PW1 for money, he was acting as a front man for accused no.1 for the purpose of attending the official work of passing conversion order. Seizure of tainted currency notes from accused No.2 would prove his criminal misconduct which is an offence envisaged under Section 13(1(d) of the Act. Seizure of tainted currency notes from accused No.2 would prove his criminal misconduct which is an offence envisaged under Section 13(1(d) of the Act. Discharge of accused no.1 cannot be a ground for acquitting accused no.2 since there is evidence to show that he had joined hands with accused no.1 for receiving bribe from PW.1. 5. Assailing the findings of the trial court, Sri. P.N.Hegde, learned counsel for accused No.2 argued that the trial court has grossly committed an error in convicting accused No.2. The prosecution case is that it was accused no.1 who demanded for bribe; accused No.2 only received the money. There was no demand by him for bribe. In fact he did not know that accused no.1 had demanded for bribe. Ex.P.3 contains explanation given by him soon after the trap and it indicates that PW1 forcibly thrusted the money into his pants’ pocket. The Lokayukta police thereafter asked him to remove the money from his pants’ pocket and therefore the hand wash and the pants wash answered positively for phenolphthalein test. For establishing an offence under Section 13(1)(d) of the Act which is punishable under Section 13(2) of the Act, the prosecution should prove that accused No.2 demanded for bribe. If he received money without any knowledge that there was demand by accused no.1, it cannot be said that he consciously received money by way of illegal gratification on behalf of accused no.1. The trial court acquitted him of the offence under Section 7 of the Act and for this reason he should not have been held guilty of the offence of criminal misconduct. He also tried to point out that there is no consistency in the evidence of PW1 and PW2; and that PW2 appears to have made improvement while giving evidence. The whole trap therefore should be disbelieved. Therefore it was his argument that the trial court has committed an error in holding the appellant guilty of the offence under Section 13(1)(d) read with Section 13(2) of the Act. In support of his arguments he has garnered support from three judgments of the Supreme Court which will be referred to in the later paragraphs. 6. Sri. Venkatesh Arabatti, learned Spl. Public Prosecutor for the respondent argued that evidence of PW1 and 2 is cogent and consistent. These two witnesses have not at all been discredited in the cross examination. In support of his arguments he has garnered support from three judgments of the Supreme Court which will be referred to in the later paragraphs. 6. Sri. Venkatesh Arabatti, learned Spl. Public Prosecutor for the respondent argued that evidence of PW1 and 2 is cogent and consistent. These two witnesses have not at all been discredited in the cross examination. Actual demand was by accused no.1. The evidence on record shows that accused No.2 consciously received the bribe money at the behest of accused no.1 and therefore even though there was no demand by him, receipt of money by him would amount to criminal misconduct. The offence under Section 13(1)(d) read with 13(2) of the Act stands independently of Section 7 of the Act. And for this reason, acquittal of accused No.2 for Section 7 does not come in the way of convicting him for the offence under Section 13(1)(d) read with section 13(2) of the Act. He argued that the trial court has appreciated the evidence properly and there are no grounds to interfere with the well reasoned judgment. 7. The above arguments give rise to the following point for discussion: i. Is the trial court justified in holding accused No.2 guilty of the offence under Section 13(1)(d) read with Section 13(2) of the Act in a circumstance where he is not found guilty of the offence under Section 7 of the Act? 8. Before answering this point, if brief reference is made to the oral evidence of the witnesses, PW1 has given evidence that in connection with passing an order on his application for conversion of agricultural lands of their family, it was accused no.1,the Assistant Commissioner who put forth demand for bribe of Rs.1,50,000/and that after making advance payment of Rs.30,000/to him, he brought the demand for bribe to the notice of Lokayukta Police and about the trap thereafter laid on 21.02.2000. PW2 is a shadow witness who has also spoken about recovery of tainted money from the appellant. PW7 is the Investigation Officer who has spoken about complaint received by PW1 and laying the trap on accused No.2. These are the three prominent witnesses. The cross examination of these three witnesses does not disclose anything worth mentioning here; the defence counsel was rest content with giving suggestions to the witnesses and of course all the suggestions have been denied by them. These are the three prominent witnesses. The cross examination of these three witnesses does not disclose anything worth mentioning here; the defence counsel was rest content with giving suggestions to the witnesses and of course all the suggestions have been denied by them. The inconsistency in the oral evidence of PW1 and 2 that the appellant’s counsel tried to point out is not so significant. The improvement that the PW2 has made, as pointed out by Sri P.N.Hegde is of no consequence because while cross examining him, his attention to the statement under Section 161 of Cr.P.C. was not drawn and the contradiction by way of improvement was not proved as required under Section 162 of Cr.P.C. Therefore the oral testimony of PW1 and 2 with regard to recovery of tainted currency notes from accused No.2 cannot be disbelieved. Even otherwise accused No.2 does not dispute seizure of the tainted currency notes from him, his case is that the notes were thrusted into his pants’ pocket. This was his specific defence and he was supposed to prove it, but failed. 9. Merely because tainted money was seized from accused No.2, it cannot be said that he can be held guilty of offence of criminal misconduct. It is the clear case of prosecution that it was accused no.1, who being the Assistant Commissioner of Mysore SubDivision, made a demand for bribe for passing conversion order. There is no evidence that accused No.2 demanded for bribe on behalf of accused no.1. He has not been held guilty of offence under Section 7, and the respondent did not choose to prefer an appeal questioning his acquittal for that offence. If Section 7 of the Act is read, it is possible to understand that a public servant can be held guilty if he accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person, any gratification other than legal remuneration as a motive or reward for doing or forbearing to do any official act in the exercise of his official function. That means he may accept illegal gratification for himself or on behalf of any other person. If he accepts the illegal gratification on behalf of any other person, the necessary corollary would be that he himself must demand illegal gratification. That means he may accept illegal gratification for himself or on behalf of any other person. If he accepts the illegal gratification on behalf of any other person, the necessary corollary would be that he himself must demand illegal gratification. It is now settled principle by catena of decisions that mere acceptance of illegal gratification without there being a demand for the same does not constitute an offence. Therefore a public servant who receives bribe or illegal gratification on behalf of another person must make a demand for it. Section 13 of the Act deals with circumstances leading to criminal misconduct by a public servant and according to Section 13(1)(d) (i) of the Act, receiving any valuable thing or pecuniary advantage by corrupt or illegal means by a public servant for himself or for any other person amounts to criminal misconduct. Whenever a public servant is charged for the offences both under Section 7 and Section 13(1)(d) of the Act, unless the demand as required under Section 7 is established by the prosecution, it cannot be said that an offence of criminal misconduct stands proved. The offence under Section 13(1)(d) of the Act stands independently as argued by Sri. Venkatesh S. Arabatti only if a public servant consciously receives a valuable thing or pecuniary advantage by corrupt or illegal means on behalf of other who has put forth demand for bribe. If a public servant is charged for Sections 7 and 13 of the Act and if charge under Section 7 fails, there cannot be conviction for criminal misconduct. This position is made clear by the Supreme Court in the following judgments referred to by the appellant’s counsel: 10. In the case of Rakesh Kapoor Vs. State of Himachal Pradesh (2012 13 SCC 552), the appellant was convicted for the offence under Section 13(2) of the Act. There were charges for Sections 7 and 13(1)(a) of the Act. Dealing with this circumstance it has been held “19. The criminal misconduct which is defined in Section 13(1)(a) has not been included in the charge. In such a circumstance, the accused lost an important opportunity to defend himself, particularly, when he was acquitted under Section 7 of the Act. There were charges for Sections 7 and 13(1)(a) of the Act. Dealing with this circumstance it has been held “19. The criminal misconduct which is defined in Section 13(1)(a) has not been included in the charge. In such a circumstance, the accused lost an important opportunity to defend himself, particularly, when he was acquitted under Section 7 of the Act. By applying the ratio rendered in the above decisions and in the light of the undisputed factual position that conviction of the appellant under Section 7 has been set aside by the High Court and in the absence of any appeal by the State against such acquittal and substantive charge under Section 13(1)(a), the conviction under Section 13(2) cannot be sustained.” 11. In the case of P.Sathyanarayana Murthy Vs. District Inspector of Police, State of Andhra Pradesh and another [ (2015) 10 SCC 152 ], it is held : “23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge thereof, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Section 7 or 13 of the Act would not entail his conviction thereunder.” 12. Therefore applying the above principles if the case on hand is examined, what is forthcoming is that when the trial court recorded acquittal of accused No.2 for the offence under Section 7 of the Act, he should not have been held guilty of the offence under Section 13(1)(d) read with section 13(2) of the Act. It is not the case of the prosecution that he demanded for bribe from PW1 in as much as he was just a receiver and unless there is clinching evidence that he received money on behalf of accused no.1 knowingly that the latter had made a demand, he could not have been convicted. 13. Very interestingly, accused no.1 was discharged by the trial court as there was no sanction to prosecute him. 13. Very interestingly, accused no.1 was discharged by the trial court as there was no sanction to prosecute him. As the records disclose, the government declined to accord sanction to prosecute accused no.1 and in spite of that charge sheet was filed against him. In these circumstances it may be said that accused No.2 could not have been prosecuted at all. He came into picture only because of accused no.1. When accused no.1 was not prosecuted, accused No.2 should have been discharged or acquitted. In a similar circumstance, the Supreme Court in the case of Thrilok Chand Jain Vs. State of Delhi ( AIR 1977 SC 666 ) has held as below: “13. Nor can the appellant be held guilty of abetting the alleged attempt made by Gupta to obtain the illegal gratification. Intention to aid the commission of the crime, is the gist of the offence of abetment by aid. Such intention, on the part of the appellant was lacking in this case. Moreover, Gupta, the principal, has been acquitted and exonerated of committing the offending act, the commission of which is alleged to have been aided by the small fry, the appellant. ………… ………… 15. We find ourselves unable to agree with this reasoning. We have already noticed above that this was not the case of the prosecution, as put in evidence, that the appellant had demanded the money on his own account by any express or implied representation to get any favour or service done to the complainant. Rather, the positive case set up by the prosecution in evidence was that the money was demanded by Gupta and was received by the appellant on his behalf pursuant to the instructions of Gupta given to the complainant earlier. Therefore, if the prosecution has failed to prove that the money had not been paid to the appellant pursuant to any demand of bribe made by Gupta, the court cannot make out a new case for the prosecution to hold that the amount had been received by the appellant on his own or for some person other than Gupta. We have already held that the appellant was a mere labourer who was not concerned with the installation work at the site or with the giving of the power connection to the complainant. We have already held that the appellant was a mere labourer who was not concerned with the installation work at the site or with the giving of the power connection to the complainant. In view of the categorical position taken by the prosecution in evidence, it does not now lie in their mouth to say that the appellant must have received the money for himself or for some other person; much less can it be said that the appellant has abused his official position or has used any illegal means in acting as an innocent carrier for Gupta. Thus, the essential ingredient of the offence under s. 5(1) (d) was lacking in this case.” 14. Therefore the above discussion takes me to conclude that conviction of accused No.2 recorded by the trial court cannot be sustained. The trial court has committed an error in holding him guilty of the offence under Section 13(1)(d) read with Section 13(2) of the Act. Hence this appeal is allowed, judgment of the trial court is set aside and the appellant i.e., accused No.2 is acquitted of the offence under Section 13(1)(d) read with Section 13(2) of the Act.