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2022 DIGILAW 690 (KAR)

B. S. Angadi v. State of Karnataka

2022-05-31

V.SRISHANANDA

body2022
JUDGMENT/ORDER 1. Heard Sri Shankar Hegde, learned counsel appearing for the appellants and Sri Anil Kale, learned Special Public Prosecutor appearing for respondent-Lokayukta. 2. The present appeal is preferred against the judgment of conviction dtd. 23/7/2011 passed in Spl.SVC.CC.No.2/2005 by the District and Sessions Judge, Gadag, ("trial Court" for short), whereby the appellant-accused were convicted for the offence punishable under Ss. 7, 13(1)(d) read with Sec. 13(2) of the Prevention of Corruption Act, 1988 ("PC Act" for short). 3. Accused No.1 was sentenced to undergo simple imprisonment for a period of one year and fine of Rs.5, 000.00 for the offence punishable under Sec. 7 of PC Act in default to pay fine, to undergo simple imprisonment for a period of one month and accuse No.1 was also sentenced to undergo simple imprisonment for a period of one year and fine of Rs.2, 000.00 for the offence punishable under Sec. 13(1)(d) read with Sec. 13(2) of PC Act, in default to pay the said fine, to undergo simple imprisonment for a period of two months. 4. Accused No.2 is sentenced to undergo simple imprisonment for the period of one year and to pay a fine of Rs.5, 000.00 for the offence punishable under Sec. 7 of PC Act, in default to pay the said fine, to undergo simple imprisonment for a period of one month and she also sentenced to undergo simple imprisonment for a period of one year and to pay fine of Rs.2, 000.00 for the offence under Sec. 13(1)(d) read with Sec. 13(2) of PC Act, in default to pay fine to undergo simple imprisonment for a period of two months. 5. Brief facts of the case are as under : The complainant by name Sri Kalakappa Veerappa Kusthtagi lodged a complaint with the Lokayukta Police on 11/6/2004 contending that, he had applied for change of name in the birth certificate of his grandson's father in the Tahasildar office. In that regard, he approached accused Nos.1 and 2. Accused Nos.1 and 2 have demanded illegal gratification in a sum of Rs.1, 000.00 and Rs.100.00 respectively. As the complainant was not interested in paying the said illegal gratification, sought for an action against the accused persons. 6. After verifying the veracity of contents of the complaint, Lokayukta Police decided to laid a trap. Accused Nos.1 and 2 have demanded illegal gratification in a sum of Rs.1, 000.00 and Rs.100.00 respectively. As the complainant was not interested in paying the said illegal gratification, sought for an action against the accused persons. 6. After verifying the veracity of contents of the complaint, Lokayukta Police decided to laid a trap. In that regard, the head of the raid party secured two panch witnesses and explained them the contents of the complaint and also demonstrated the chemical reaction of phenolphthalein powder with sodium carbonate solution and took 10 currency notes of Rs.100.00 denomination 2 currency notes of Rs.50.00 denomination and smeared phenolphthalein powder to the said notes after noting down the serial numbers, prepared entrustment mahazar vide Ex.P.2. Thereafter, instructions were given to the complainant and the shadow witness. Complainant visited the accused persons and to enquired about the pending work and on demand made by them, to hand over the tainted currency notes to the hands of accused Nos.1 and 2 and handing over of such currency notes must be seen by the shadow witness and thereafter come out of the office and should give a pre-designated signal to the rest of the raid party, by wiping his face with the hand kerchief. 7. Thereafter, the raid party comprising of head of the raid party, sub staff, panch witnesses and the complainant proceeded to the office of the Tahasildar around 12.30 noon. As per the instructions given by the Head of the raid party, the complainant approached accused No.1 and handed over 10 currency notes of Rs.100.00 denomination to the hands of accused No.1 and thereafter approached accused No.2 and handed over 2 currency notes of Rs.50.00 denomination and gave a pre- designated signal to the rest of the raid party. 8. Immediately raid party came to the office of the Tahasildar and enquired accused Nos.1 and 2 about the tainted money. Initially both of them pleaded ignorance and thereafter accused Nos.1 and 2 took out the tainted currency notes which were there in their custody and head of the raid party seized the same. Colour test was conducted, which turned into positive. Explanations of accused Nos.1 and 2 were also taken. Immediately accused Nos.1 and 2 were arrested. All these proceedings were recorded in the form of trap mahazar marked at Ex.P.3. Colour test was conducted, which turned into positive. Explanations of accused Nos.1 and 2 were also taken. Immediately accused Nos.1 and 2 were arrested. All these proceedings were recorded in the form of trap mahazar marked at Ex.P.3. Thereafter, both the accused were produced before the Special Judge, and they were sent to the judicial custody. 9. Investigation agency completed the investigation and filed charge sheet against the accused persons for the aforesaid offences. Learned Special Judge secured the presence of the accused and framed the charges against the accused persons. Accused persons pleaded not guilty and therefore trial was held. 10. In order to prove the case of the prosecution, the prosecution has examined 12 witnesses as PWs.1 to 12 and 55 documents were exhibited and marked as Exs.P.1 to P.55. 17 material objects were also relied on by the prosecution, which were marked as MOs.1 to 17. 11. On conclusion of the prosecution evidence, accused statement was recorded as is contemplated under Sec. 313 of Cr.P.C. Accused persons denied all the incriminatory materials found against them and on behalf of accused, two witnesses were examined as DWs.1 and 2. Written submissions were also furnished by accused Nos.1 and 2 as is contemplated under Sec. 313 (5) of Cr.P.C. During the course of cross-examination of prosecution witnesses, two documents were also marked, which were exhibited as Exs.D.1 and D2. 12. Thereafter, learned Special Judge heard the parties in detail and after considering the oral and documentary evidence placed on record and in the light of the arguments put forth on behalf of the accused persons, learned Special Judge convicted and sentenced the accused persons as stated supra. 13. Being aggrieved by the judgment of conviction and order of sentence, the appellants have preferred this appeal. 14. In the appeal memo, the following grounds have been raised: The conviction and sentence against the appellants are illegal, invalid, contrary to the law, facts and circumstances of the case without there being any justifiable reasons. Hence, it is liable to be set aside. The court below has erred in convicting the appellants for offences under Sec. 7, 13(1)(d) read with Sec. 13(2) of the Prevention of Corruption Act, 1988. The respondent has not established the ingredients of either Sec. 7 nor Sec. 13(1)(d) of the P.C. Act 1988. Hence, it is liable to be set aside. The court below has erred in convicting the appellants for offences under Sec. 7, 13(1)(d) read with Sec. 13(2) of the Prevention of Corruption Act, 1988. The respondent has not established the ingredients of either Sec. 7 nor Sec. 13(1)(d) of the P.C. Act 1988. Even the prosecution has failed to raise suspicion against the appellants regarding demand and acceptance of illegal gratification, No work of the complainant was pending with the appellants. The Special Judge has failed to evaluate the evidence in reaching the just decision of the case. The conviction is given only on the basis of recovery of money from the appellants. To establish the guilt of the accused the prosecution has to prove and establish the demand and acceptance of illegal gratification by the appellants. In absence of the same, accused/appellants are liable to be acquitted. The Special Judge has failed to consider the aspect of demand and acceptance of illegal gratification voluntarily by the appellants. Special Judge has failed to appreciate the evidence on record and accepted unnatural theory of prosecution. There was no occasion for the appellants to show any favour or disfavour to the complainant PW1, as no such work of the complainant was pending with the appellants. Hence, there was no question of demand and acceptance of illegal gratification by the appellants. For sustaining conviction u/s.7 of P.C Act 1988 pendency of work is essential. In the instant case the appellants had led the evidence of DW.1 and DW.2 and got marked Ex.D1 and D2. The evidence of the above said witnesses clearly demonstrates the fact that PW3 Sri Lokesh Gowda was standing outside the Tahsildar's Office when the complainant along with friend of his had been to the office of the Tahsildar. Hence, there was not question of PW3 hearing or seeing/observing the alleged transaction between appellants and PW1 or with anybody whom they had. On this solitary ground along the order of the lower court is liable to be set-aside. It is submitted that the Lower Court relied upon the evidence/ testimonies of PW2, 3, 4 and 12 to establish the ingredients of demand and acceptance of illegal gratification. Para No.13 of the impugned order shows the same. On this solitary ground along the order of the lower court is liable to be set-aside. It is submitted that the Lower Court relied upon the evidence/ testimonies of PW2, 3, 4 and 12 to establish the ingredients of demand and acceptance of illegal gratification. Para No.13 of the impugned order shows the same. Unfortunately as it is evident on the face of the record PW2 Sri.Kushal Wodeyar is not a shadow witness and he has deposed that he did not see or hear the conversation between the appellants and PW1 or anyone with whom they had. Similarly, PW4 is Sri. Suresh who has accompanied PWI to the office of the appellants: He has also turned hostile to the case of the prosecution and denied the suggestion put by the prosecution. Thus, from the evidence of Sri.Suresh it is clear that he did not accompany PW1 to the office of the appellants. His evidence is of no use to the prosecution. Further, PW12 is the IO. It is the case. of the prosecution itself that 10 did not hear or observe the transaction between appellants and PW1. Under such circumstances his evidence is hearsay in nature as far as demand and acceptance of illegal gratification is concerned. Therefore, his evidence is also of no use to the prosecution for proving demand and acceptance of illegal gratification. Thus, what remains is only the evidence of PW3, Sri Lokesh Gowda. Sri.Lokesh Gowda has admitted categorically in his cross examination that "he did not haer the conversation between A1, A2 with FW1 or with whom they had." This admission clearly shows that PW3, Lokesh did not hear the conversation pertaining to demand and acceptance of illegal gratification. It is well settled principles of law that if the witness gives two inconsistent statements at one stage of the proceedings or at the later stage, his evidence becomes unworthy of credence. On this ground alone the impugned order is liable to be set-aside. It is submitted that a person may lie but the instruments cannot lie. The PW1 had recorded the conversation between the appellants and himself or with one he had. The tape recorder recorded the conversation but the quality of the words recorded were not clear and audible. On this ground alone the impugned order is liable to be set-aside. It is submitted that a person may lie but the instruments cannot lie. The PW1 had recorded the conversation between the appellants and himself or with one he had. The tape recorder recorded the conversation but the quality of the words recorded were not clear and audible. Therefore this evidence is also not useful to the respondent for proving the point The evidence of PW3 in liable to be rejected as he has admitted in examination in chief itself that the tape recorded conversation could not be heard property and nothing was properly recorded in the tape recorder since lot of people were moving by talking in loud voice. Under such circumstances it is hard to believe that PW3 has heard what could not be recorded by the tape recorder. It is submitted that the evidence of PW3 cannot be believed as he has stated that there was a wall from the back side at a distance of ten to eleven feet, when he stood near the chamber of AI. The perusal of the sketch also shows that PW3 could not have seen or heard the transaction by standing in a place which is marked in the sketch. On this ground also impugned order is liable to be set-aside It is humbly submitted that the evidence of Sri Lokesh Gowda suffers from improvements, contradictions and omissions. It is submitted that PW1 Sri.Kalakappa Kushtag had totally turned hostile to the case of the prosecution, this fact is admitted by the Special Court at Para No. 14 of the impugned order. It is submitted that the complaint is filed out of grudge and animosity. The complaint on the face of it is false, frivolous and concocted. The same is unnatural and cannot be believed. It is humbly submitted that in order to prove demand and acceptance of illegal gratification the prosecution has to adduce cogent and convincing evidence before the Hon'ble Court. In the instant case, the prosecution has failed to produce, cogent, convincing and satisfactory evidence to prove the same. Hence on this ground also appeal is liable to be allowed by setting the aside the order of special judge. In the instant case, the prosecution has failed to produce, cogent, convincing and satisfactory evidence to prove the same. Hence on this ground also appeal is liable to be allowed by setting the aside the order of special judge. It is well settled Principle of Law that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the appellants when the prosecution has failed to prove the demand and acceptance. Mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe on demand. The Hon'ble Special Judge has drawn wrong presumption by ignoring the fact that, in any trial of an offence punishable under Sec. 7 presumption can be raised U/s.20 only when it is proved that the accused 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. But in the instant case the prosecution has failed to prove the demand and voluntary acceptance beyond reasonable doubt as required under sec.7 of P.C. Act. Under such circumstances the presumption cannot be raised against the appellants that he demanded and accepted illegal gratification. It is submitted that, the Hon'ble Special Judge miserably failed to consider the evidence on record and came to a wrong conclusion based on the hand wash of the appellants brushing aside the reasons given by the appellants for the same. The witnesses have given inconsistent evidence before the Special Judge and there is no corroboration in material aspects of the case. Therefore unless the evidence of the complainant and the shadow witness corroborate with each other in all aspects, it is not safe to convict the appellants. The evidence of PW-1 and 3 are contrary to each other and also contrary to the trap mahazar. The evidence of I.O., PW-12 is also contrary to the version of other witnesses regarding the alleged trap proceedings and recovery. The evidence of material witness have not been appreciated properly. It is submitted that the prosecution has even failed to prove initial demand. The evidence of I.O., PW-12 is also contrary to the version of other witnesses regarding the alleged trap proceedings and recovery. The evidence of material witness have not been appreciated properly. It is submitted that the prosecution has even failed to prove initial demand. Under such circumstances presumption cannot be raised and the burden does not shift on the appellants, even then the appellants have given plausible explanation even by adducing evidence of DW1 and 2, which the learned Special Judge failed to consider. Hence the judgment given by the Special Judge, Principal District and Sessions Judge, Gadag is erroneous and beyond the scope of law, same is liable to be set- aside. It is submitted that, in the instant case the respondent has totally failed to prove the aspect of demand which is sine qua non for either drawing presumption u/s.20 of P.C. Act, 1988 or for holding the appellants guilty for offences punishable u/ s.7 and 13(1) (d) of Prevention of Corruption Act 1988. The lower Court has lost sight of the above said settled legal position. On this count alone the entire judgment of conviction is liable to be set aside. It is submitted that when the prosecution has failed to prove the case beyond reasonable doubt, the learned Special Judge has passed erroneous order assigning the imaginary and unjust reasons in the judgment. Therefore, the order of the learned Special Judge is incorrect and perverse. The above fact shows that the story of the prosecution is unnatural and prima-facie appears to be false. The appellants have never demanded and received any illegal gratification from anybody at any point of time. The learned Special Judge has committed serious error in convicting the appellants by relying on the evidence of PW-2, 3, 4 and 12, even if, their evidence suffers from full of material contractions and omissions which go to the root of the case and falsify the entire case of the prosecution. There is no cause of action and there was no occasion for the appellants to demand and accept any illegal gratification. It is just for falsely implicating the appellants by hatching conspiracy resulted in filing of false case against the appellants. The pancha witnesses being public servants deposed as per the panchanama just to save their skin without there being any consistency. It is just for falsely implicating the appellants by hatching conspiracy resulted in filing of false case against the appellants. The pancha witnesses being public servants deposed as per the panchanama just to save their skin without there being any consistency. The said witnesses have come up with different versions at different stage, the Hon'ble Special Judge committed grave error in convicting the appellants on such unbelievable evidence. The law is clear that wherever two or more views are possible the view favorable to the accused/appellants have to be taken into consideration." It is submitted that the prosecution has suppressed the genuineness of the case and they have not come before the court with clean hands against the appellants. But the learned Special Judge has come. to wrong conclusion in convicting the Appellants. Thus the same has resulted in miscarriage of justice to the appellants. It is submitted that the learned Special Judge has failed to understand the case of the defense while appreciating the evidence of witnesses and accepted the case of the prosecution and not given due weight age/importance to the defense version. The sanction order is bad in law and stems from non application of mind. Documents are perused by competent authority. It is submitted that the prosecution has suppressed the genuineness of the actual incident and came with false story that the appellants demanded and accepted illegal gratification. The learned Special Judge also accepted the same and arrived to wrong conclusion in convicting the Appellants without assigning the proper and cogent reasons which is against to well settle principle of law. The questionings under Sec. 313 Cr.P.C. are illegal in as much as the alleged incriminating materials pertaining to the charge are not put to the appellants seeking his explanation. The same has prejudiced his defense resulting in failure of justice." 15. Reiterating the above grounds, learned counsel Sri Shankar Hegde vehemently contended that the complainant having turned hostile to the case of the prosecution in toto and having regard to the oral testimony of the shadow witness and the admissions given by him in the cross-examination, the prosecution has not been able to successfully prove any one ingredients muchless all ingredients to attract the offence punishable under Ss. 7 and 13(1)(d) read with Sec. 13(2) of PC Act and sought for allowing the appeal. 16. 7 and 13(1)(d) read with Sec. 13(2) of PC Act and sought for allowing the appeal. 16. During the course of appeal, the 1st appellant died and therefore the appeal stood abated against the 1st appellant. 17. Per contra, learned counsel Sri Anil Kale representing the Lokayukta supported the impugned judgment by contending that soon after the trap, the 2nd accused who is the 2nd appellant, has given a written submission wherein categorically she has admitted that, for the first time she has accepted the illegal gratification and therefore, her action may be condoned. He also pointed out that just because the complainant turning hostile to the case of the prosecution would not cause any serious dent to the case of the prosecution when other material evidence available on record in the form of oral testimony of panch witnesses, the head of the raid party and other attendant circumstances, would be sufficient enough to support the impugned judgment whereunder the appellant has been convicted. 18. In reply, learned counsel Sri Shankar Hegde contended that the statement given by the 2nd appellant soon after the trap is not the voluntary statement. It is in fact extracted by the head of the raid party under fear and the 2nd appellant being the lady had no option but to give such a statement as is directed by the head of the raid party. Therefore, the same should not bind on the 2nd appellant especially having regard to the answers furnished by her during recording the accused statement and her statement before the Court under Sec. 313(5) Cr.P.C and sought for allowing the appeal. 19. He also places his reliance on the following judgments of the Hon'ble Supreme Court: 1) Suraj Mal Vs. State (Delhi Administration) reported in 1979(4) SCC 725 ; while deciding the case in the un Amended Act in paragraph No.2 has held as under: "2. The defence of the appellant was that he was falsely implicated and nothing was recovered from him nor did he make any demand for bribe. The Special Judge on the basis of the evidence led before the Court held that the evidence was extremely shaky and unconvincing and was not sufficient to convict Ram Narain but nevertheless the trial court convicted the appellant on that very evidence. The Special Judge on the basis of the evidence led before the Court held that the evidence was extremely shaky and unconvincing and was not sufficient to convict Ram Narain but nevertheless the trial court convicted the appellant on that very evidence. In upholding the conviction of the appellant the High Court completely overlooked the fact that the very evidence on which the conviction of the appellant was based had been rejected with respect to the same transaction and thus if one integral part of the story given by witnesses was not believable, then the entire case failed. In other words, the Position was that while P.Ws. 6, 8 and 9 were disbelieved both in regard to the factum of payment of the bribe and the recovery of the money. Regarding Ram Narain, the very same witnesses were believed so far as the appellant was concerned. It is well-settled that where witnesses make two inconsistent statements in their evidence either at one state or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. For these reasons, therefore, when the Special Judge disbelieved the evidence of P Ws. 6 8 and 9 in regard to the complicity of Ram Narain, It was not open to him to have convicted the appellant on the same evidence with respect to the appellant, which suffered from same infirmities for which the said evidence was disbelieved regarding the complicity of Ram Narain. If the witnesses drew no distinction in the examination in chief regarding acceptance of bribe by Ram Narain and by the appellant and the witnesses were to be disbelieved with respect to one, they could cot be believed with respect to the other. In other words, the evidence of witnesses against Ram Narain and the appellant was inseparable and indivisible. Moreover, there is an additional circumstance which throws a serious doubt on the complicity of the appellant Suraj Mai, Although, in his statement of page 71 of the paper- book, the complaisant has clearly stated that all the three accused including the appellant had met him and demanded bribe of Rs.2000.00, the appellant having demanded Rs.100.00, yet in the report which he lodged before Mr. Katoch, there is no mention of the fact that the appellant at any time demanded any tribe at all. Even the presence of the appellant at the time when the demand was made by Devender Singh has not been mentioned, in this document. This report, undoubtedly contains reference to a demand having been made by the Sec. H.O. Devender Singh on behalf of the appellant, but there is no statement in this report that any demand was made by Suraj Mal directly from the complainant. If, in fact, the appellant would have demanded bribe from the complainant just on the previous evening, it is not understandable why this fact was not mentioned in the report which the complainant submitted to the D.S P. Katoch and which is the F.I R. constituting the evidence. We have perused the statements of P.W. 6, 8 and 9 and we find that while in the examination in chief they have tried to implicate all the three accused persons equally without any distinction in their cross examination, they have tried to save Ram Narain and made out a different story so far as Ram Narain is concerned and have even gone to the extent of stating that he did not demand any money and that he refused to accept the money which was offered to him. In this state of the evidence, we feel that the High Court was not right in convicting the appellant. Mr. Lalit appearing for the State vehemently submitted that whatever be the nature of the evidence in the case, it is an established fact that money had been recovered from the bushirt of the appellant and that by itself is sufficient for the conviction of the accused. In our opinion, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Moreover, the appellant in his statement under Sec. 342 has denied the recovery of the mosey and has stated that he had been falsely implicated. The High Court was wrong in holding that the appellant had admitted either the payment of money or recovery of the same as this fact is specifically denied by the appellant in his statement Under Sec. 342 Cr. The High Court was wrong in holding that the appellant had admitted either the payment of money or recovery of the same as this fact is specifically denied by the appellant in his statement Under Sec. 342 Cr. PC Thus mere recovery by itself cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money. For these reasons, therefore, we are satisfied that the prosecution has not been able to prove the case against the appellant beyond reasonable doubt. We, therefore, allow the appeal set aside the conviction and sentences passed against the appellant. The appellant will now be discharged from his bail bonds." 2) A.Subair Vs. State of Kerala reported in (2009) 6 SCC 587 ; While deciding the case the Apex Court has held at paragraph Nos.13 and 14 as under: "13. The essential ingredients of Sec. 7 are: (i) that the person accepting the gratification should be a public servant; (ii) that he should accept the gratification for himself and the gratification should be 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 function, favour or disfavour to any person. 14. Insofar as Sec. 13 (1)(d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person." 3) V.Venkata Subbarao Vs. State represented by Inspector of Police A.P. reported in (2006) 13 SCC 305. While deciding the case, the Hon'ble Apex Court has held at paragraph Nos.24 to 27 as under: "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. Sec. 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. In the absence of a proof of demand, the question of raising the presumption would not arise. Sec. 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 Sec. 7 or Sec. 11 or clause (a) or clause (b) or sub- Sec. (1) of Sec. 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 Sec. 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate." 25. Furthermore, even in such a case, the burden on an accused does not have to meet the same standard of proof, as is required to be made by the prosecution. 26. In M.S. Narayana Menon @ Mani vs. State of Kerala and Anr. [ (2006) 6 SCC 39 ], this Court held : "Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding." 27. In Union of India through Inspector, CBI vs. Purnandu Biswas [(2005) 12 SCC 576], it was opined : "36. In this case demand of illegal gratification by the respondent has not been proved. Furthermore, Sec. 20 of the Act is not attracted as the respondent had been charged for commission of an offence under Sec. 13(1)(d) read with Sec. 13(2) of the Act." 20. In view of the rival contentions of the parties and in the light of the principles enunciated in the aforesaid judgments, the following points would arise for consideration. i. Whether the prosecution is successful in proving all ingredients to attract the offences alleged against the accused persons under Sec. s 7 and 13(1)(d) read with Sec. 13(2) of PC Act? ii. i. Whether the prosecution is successful in proving all ingredients to attract the offences alleged against the accused persons under Sec. s 7 and 13(1)(d) read with Sec. 13(2) of PC Act? ii. Whether the impugned judgment is suffering from legal infirmity or perversity and thus calls for interference? iii. What order? 21. In the case on hand, the complainant who is examined as PW.1 has turned hostile to the case of the prosecution in toto, in as much as he failed to identify the very appellants. Despite detailed cross examination by the learned Special Public Prosecutor except confronting the contents of the complaint, experimental mahazar and trap mahazar, the prosecution is unable to elicit any useful material from the testimony of PW.1, except the complainant admitting his signature on the complaint. 22. Having failed to establish the incident through the oral testimony of PW.1, the prosecution is relied on the testimony of shadow witness who is examined as PW.3. PW.3 however, supported the case of the prosecution to a major extent. He deposed about the introduction of complainant in the office of the Lokayukta by the head of the raid party, contents of complaint, entrustment mahazar thereafter accompanying the complainant to the office of the appellants, complainant meeting accused Nos.1 and 2 in their respective places and handing over the tainted currency notes to the appellant Nos.1& 2 in a sum of Rs.1, 000.00 and Rs.100.00 respectively on demand and also having seen the colour test being turned into positive and seizure of tainted currency notes from the custody of the appellants and also admitted signature in the trap mahazar. 23. However, in his cross examination, he categorically admitted that he could not hear the demand made by the appellants. In this regard Sri Anil Kale, learned counsel vehemently contended that if the appellants have handled the tainted currency notes, it is deemed to have been accepted by them that they have received tainted currency notes on demand made by them. In this regard, evidence on record is not sufficient enough in as much as, the prosecution itself relied on the recording said to have taken place at the time of the trap. However, before the Court, PW.3 categorically admits that the recording produced before the Court is not able to hear as there is no specific demand being found in the recording. However, before the Court, PW.3 categorically admits that the recording produced before the Court is not able to hear as there is no specific demand being found in the recording. Further, the detailed cross-examination reveals that PW.3 was standing little away from the complainant, when the actual handing over of tainted money to the appellants have taken place. Description of the place of incident is also not correct in the ocular testimony of PW.3 in as much as he has stated that there was a vacant place of 10 feet behind him where he was standing and there was a distance of 15 feet between the place of sitting of appellant Nos.1 & 2. Whereas the sketch i.e., relied on by the prosecution marked at Ex.P.21 clearly shows that the entire area itself is measuring about 15 feet. When that were to be so, ocular testimony of PW.3 is doubtful. Further, in a hall containing about 15 to 18 feet, if appellant Nos.1 & 2 are sitting about 15 feet away and there were other public very much present in the hall, how can PW.3 is in a position to observe what exactly that transpired between the complainant and the appellants at the time of handing over of the tainted currency is to be examined. More so, when the prosecution is bound to prove before the Court as to the exact demand and acceptance which is an sine-qua-non for convicting the accused under the provisions of Sec. 7 and 13(1)(d) read with Sec. 13(2) of PC Act. If there is no proper demand established, mere handing of the tainted currency notes itself would not be sufficient enough to record an order of conviction by following the principles of law enunciated in the aforesaid decisions referred to supra. 24. In A.Subair's case supra, it has been specifically enunciated by the Hon'ble Apex Court that the prosecution has to establish demand and acceptance of the tainted currency notes, colour test being positive and the work of the complainant with the accused must be pending and all the three ingredients are to be established beyond reasonable doubt, then only the order of conviction is permissible. 25. In the case on hand, since the complainant has given a go bye to the case of the prosecution. 25. In the case on hand, since the complainant has given a go bye to the case of the prosecution. The ocular testimony of PW.3 is not sufficient to establish the demand and acceptance, this Court need not take pains in finding out the other aspects of the matter. Colour test turning positive and seizure of the tainted currency notes and other documentary evidence on record would not be sufficient to maintain the order of conviction. Further, since appellant No.1 is no more, insofar as appellant No.2 is concerned, she has demanded Rs.100.00. Her statement said to have been given soon after the trap, would not be binding on her in view of the provisions of Sec. 26 of the Indian Evidence Act. Further the statement given by her under Sec. 313(5) of Cr.P.C that the complainant came to her and handed over Rs.100.00 and wanted change of Rs.10.00 in exchange of Rs.100.00 is also probable, in as much as work of appellant No.2 was to collect the money from the concerned persons and to issue the Pahani Certificate and she would have necessary cash with her for the exchange of Rs.100.00. Therefore, the defence taken by the 2nd appellant appears to be a probable defence and having regard to the facts that the evidence to be adduced by the accused in the form of preponderance of possibilities, such a possibility cannot be ruled out. Further, the oral testimony of DW.2 supports the case of appellant No.2. 26. These aspects of the matter have not been properly appreciated by the learned trial Court while passing the impugned judgment by convicting the appellants in the case. 27. Under such circumstances, this Court is of the considered opinion that, the prosecution is unsuccessful in establishing all ingredients required to attract the offences alleged against the appellants herein, despite the fact that appellant No.1 is no more, the order of the trial Court cannot be sustained as it suffers from legal infirmities. Accordingly point No.1 is answered in the negative and point No.2 in the affirmative. Accordingly pass the following. ORDER The appeal is allowed. The impugned judgment dtd. 23/7/2011 passed in Spl.SVC.CC.No.2/2005 by the District and Sessions Judge, Gadag convicting the appellants is hereby set aside. Bail bond of the 2nd appellant stands discharged. Accordingly point No.1 is answered in the negative and point No.2 in the affirmative. Accordingly pass the following. ORDER The appeal is allowed. The impugned judgment dtd. 23/7/2011 passed in Spl.SVC.CC.No.2/2005 by the District and Sessions Judge, Gadag convicting the appellants is hereby set aside. Bail bond of the 2nd appellant stands discharged. Amount in deposit is ordered to be withdrawn by the appellant No.2 and legal representatives of appellant No.1 before the trial Court under due identification. Sd/- JUDGE EM