JUDGMENT : Challenge in this Criminal Appeal is to the judgment, dated 25.06.2007, in Calender Case No.24 of 2004, on the file of the Court of Special Judge for SPE and ACB Cases, Vijayawada (for short, “the learned Special Judge”), where under the learned Special Judge found the Accused Officer (AO) guilty of the charges under Sections 7 and 13(1)(d) R/w.13(2) of the Prevention of the Corruption Act, 1988 (for short, “the PC Act”), convicted him under Section 248(2) of the Code of Criminal Procedure, 1973 (for short, “the Cr.P.C”) and after questioning him about the quantum of sentence, sentenced him to undergo Simple Imprisonment for a period of one year and to pay a fine of Rs.1,000/- in default to suffer Simple Imprisonment for three months for the charge under Section 7 of the PC Act and also to undergo Simple Imprisonment for a period of one year and to pay a fine of Rs.2,000/- in default to suffer Simple Imprisonment for six months for the offence under Section 13(1)(d) R/w.13(2) of the PC Act. Both the substantive sentences shall run concurrently. 2. The parties to this Criminal Appeal will hereinafter be referred to as described before the trial Court, for the sake of convenience. 3. The case of the prosecution, in brief, as set out in the charge sheet filed by the State, represented by Range Inspector-III, Anti-Corruption Bureau (ACB), Vijayawada Range, Vijayawada pertaining to Crime No.27/RCT-ACB-VJA/2003 of ACB, Vijayawada Range for the offences under Sections 7 and 13(2) R/w.13(1)(d) of the PC Act, is that the AO by name Sankula Chandra Sekhar worked as Sanitary and Food Inspector, Municipal Office, Machilipatnam, Krishna District from 01.06.1997 to 17.07.2003 as such he is a “Public Servant” within the meaning of Section 2(c) of the PC Act. The offence took place in the residential house of AO, which is situated at Door No.21-543-9-2A, Vijaya College Road, Paraspeta, Machilipatnam, Krishna District. (i) LW.1 – Majeti Muralidhar, S/o. M.L.N. Nagabhushana Rao is a resident of Frenchpeta, Machilipatnam, Krishna District and lodged a report to the DSP, ACB, Vijayawada (LW.9) on 16.07.2003 at 04:00 p.m. alleging that AO demanded him to pay a bribe of Rs.5,000/- as illegal gratification other than legal remuneration for showing official favour of not booking any case against his Rice Shop by taking samples from his shop situated at D.No.23/288-5, Batchupeta, Machilipatnam, Krishna District. (ii) After observing all the formalities, the DSP, ACB Vijayawada registered the report of LW.1 as a case in No.27/RCT-ACB-VJA/2003 of ACB, Vijayawada Range, dated 17.07.2003, at 05:15 p.m. and took up investigation. (iii) On 17.07.2003 at about 09:00 p.m. the AO was trapped at his residence by the DSP, ACB, Vijayawada Range when he further demanded and accepted the bribe of Rs.5,000/- from LW.1. When both the hand fingers of AO were subjected to Sodium Carbonate Solution test, it yielded positive result. The tainted amount was recovered from the possession of AO, at his instance. The AO opened the left side drawer of the wooden table in front of him and showed a wad of currency notes which was kept in it. As per the instructions of LW.9 – DSP, ACB, Vijayawada Range, one of the mediators took the wad of currency notes and the serial numbers of the currency notes when compared were found tallied with the serial numbers of the currency notes produced by LW.1 during the pre-trap proceedings. When the inner linings of the table drawer were subjected to chemical test, it also yielded positive result. DSP, ACB seized the tainted amount and other materials under the cover of post-trap proceedings i.e., mediators report, dated 17.07.2003. (iv) The AO was arrested and produced before the learned Special Judge for remand and later he was enlarged on bail. During investigation, LW.9 examined other witnesses and further got recorded the statement of LW.1 under Section 164 Cr.P.C. LW.10 – Range Inspector-III, ACB, Vijayawada Range, Vijayawada took up further investigation and after completion of investigation filed charge sheet. (v) The Chairman, Municipal Council, Machilipatnam, Krishna District being the competent authority to remove the AO accorded sanction to prosecute the AO for the offences punishable under Sections 7 and 13(2) R/w.13(1)(d) of the PC Act vide proceedings in ROC No.5061/03/F1, dated 24.09.2004. Hence, the charge sheet. 4. The learned Special Judge took cognizance of the case under the above provisions of law. After appearance of the AO and complying the necessary formalities under Section 207 Cr.P.C, the learned Special Judge framed charges under Sections 7 and 13(1)(d) R/w.13(2) of the PC Act against the AO, read over and explained the same to him in Telugu for which he pleaded not guilty and claimed to be tried. 5. After appearance of the AO and complying the necessary formalities under Section 207 Cr.P.C, the learned Special Judge framed charges under Sections 7 and 13(1)(d) R/w.13(2) of the PC Act against the AO, read over and explained the same to him in Telugu for which he pleaded not guilty and claimed to be tried. 5. In order to establish the guilt against the AO, the prosecution examined PWs.1 to PW.8 and got marked Exs.P-1 to P-11 and MOs.1 to MO.7. 6. After closure of the evidence of the prosecution, AO was examined under Section 313 Cr.P.C with reference to the incriminating circumstances appearing in the evidence let in by the prosecution, for which he denied the incriminating circumstances and filed a written statement contending, in substance, as follows: He never visited the shop of PW.1 and he does not know him. He saw him only on 17.07.2003 and the question of any demand from him for bribe does not arise. The allegations against him are all false. The President of Sri Vasavi Chillara Kotla Yajamanula Sangham by name Sri Krishna Mohan Rao, to wreck vengeance against him, laid a false trap against him through PW.1. AO being the Food Inspector filed several cases against the traders. On 17.07.2003, while he was talking with the house owner – PW.2, PW.1 came and informed that he was sent by one Panduranga Rao to give Rs.5,000/- to him for which he stated that he does not know any person and refused to take money and shouted on Muralidhar. Muralidhar pleaded some excuses and again he forcibly kept the said amount in his hands and he refused and returned the same to him but he forcibly thrust the amount in his left side table drawer which was open and then the ACB people came and caught hold of him. The DSP, ACB informed him to pick up the tainted amount and asked him to count the same and handover the same to one of the mediators. After that only the DSP, ACB conducted chemical test. The mediators are the stock mediators. ACB officials did not verify his antecedents properly. 7. Accused Officer did not adduce any defence evidence on his behalf. 8. The learned Special Judge, on hearing both sides and after considering the oral and documentary evidence on record, found the AO guilty of both the charges, convicted and sentenced him, as above. The mediators are the stock mediators. ACB officials did not verify his antecedents properly. 7. Accused Officer did not adduce any defence evidence on his behalf. 8. The learned Special Judge, on hearing both sides and after considering the oral and documentary evidence on record, found the AO guilty of both the charges, convicted and sentenced him, as above. 9. Felt aggrieved of the conviction and sentence imposed, the unsuccessful AO in the aforesaid Calender Case, filed the present Criminal Appeal. 10. Now, in deciding this Appeal, the points that arise for consideration are as follows: 1) Whether the prosecution before the trial Court proved that AO is a public servant within the meaning of Section 2(c) of the PC Act and whether the prosecution obtained a valid sanction to prosecute him for the charges framed? 2) Whether the prosecution before the trial Court proved that AO demanded PW.1 to pay a bribe of Rs.5,000/- for not lifting any samples from his Shop and by such corrupt or illegal means and by abusing his official position as public servant, obtained a sum of Rs.5,000/- and whether it would constitute the offences under Sections 7 and 13(1)(d) R/w.13(2) of the PC Act? 3) Whether the judgment, dated 25.06.2007, in Calender Case No.24 of 2004, is sustainable under law and facts and whether there are any grounds to interfere with the same? 11. POINT No.1: Insofar as this point is concerned, the prosecution, to prove a valid sanction, examined PW.4 – the then Chairman, Municipal Council, Machilipatnam. According to him their office received a preliminary enquiry report through Vigilance Commissioner on 19.07.2003, basing on which the AO was kept under suspension. Their office received final report from Vigilance Commissioner or DG, ACB. Ex.P-9 is the prosecution sanction order issued by him against AO, which bears his signature. On verification of the contents of FIR, Mediators Reports 1 and 2, statements of the witnesses, explanation of AO and considering the material, after application of mind, he issued Ex.P-9 sanction order. During cross-examination of PW.4, nothing was suggested to him that he did not apply his mind and did not peruse the material on record. On verification of the contents of FIR, Mediators Reports 1 and 2, statements of the witnesses, explanation of AO and considering the material, after application of mind, he issued Ex.P-9 sanction order. During cross-examination of PW.4, nothing was suggested to him that he did not apply his mind and did not peruse the material on record. So, it is a case where the prosecution examined PW.4, who was the signatory of Ex.P-9 and evidence of PW.4 coupled with Ex.P-9 proves that there was application of mind by the sanctioning authority so as to issue Ex.P-9 for the alleged offences under Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act. The learned Special Judge after due consideration of the material available on record rightly held that the prosecution obtained a valid sanction to prosecute the AO for the charges framed against him. There is no dispute that AO was a public servant within the meaning of Section 2(c) of the PC Act. POINT Nos.2 & 3: 12. Sri A. Hari Prasad Reddy, learned counsel for the Appellant/AO, would contend that PW.1 – de-facto complainant, who lodged Ex.P-1 report, did not support the case of prosecution. According to him, at the dictation of ACB officials, he scribed Ex.P-1 and the contents of Ex.P-1 are all false. He further testified that he was compelled to give statement under Section 164 Cr.P.C. by the ACB officials and the contents of his 164 Cr.P.C. statement were also false. The prosecution did not prove that any official favour was pending with AO prior to the trap or on the date of trap. PW.2, adjacent neighbor and house owner of AO, testified that PW.1 forcibly thrust the amount in the table drawer of AO. Even according to PW.1, when he offered the amount to AO, as directed by one Pandu, AO refused it and then he kept the amount in the table drawer. According to PW.2, firstly, AO was compelled to pick out the amount from the table drawer and later chemical test was conducted. According to the defence of AO, PW.1 thrust the amount originally into the hands of AO and when AO refused to receive, the amount was kept in the table drawer of AO by PW.1 forcibly. According to PW.2, firstly, AO was compelled to pick out the amount from the table drawer and later chemical test was conducted. According to the defence of AO, PW.1 thrust the amount originally into the hands of AO and when AO refused to receive, the amount was kept in the table drawer of AO by PW.1 forcibly. So, on account of this, there was every possibility that the hand fingers of AO and inner linings of the table drawer yielded positive result, when they were subjected to chemical test. Mere recovery of the tainted amount from the table drawer is not sufficient to prove the guilt. Prosecution did not prove the pendency of official favour. Though AO had the power being the Sanitary and Food Inspector to visit the shops and lift the samples but insofar as the shop of PW.1 is concerned, no official favour was pending with AO prior to the date of trap and as on the date of trap. AO voluntarily explained before PW.5 - the Trap Laying Officer, when he was questioned, that PW.1 thrust the amount into the table drawer when he refused to receive the amount. The evidence of PW.1 was in tune with the defence of AO. The learned Special Judge basing on the fact that both hands of AO and inner linings of the table drawer yielded positive result erroneously convicted the AO. Prosecution did not prove the allegations of demand. PW.1 did not speak of any demand from AO to pay the bribe within the meaning of Section 7 of the PC Act or to gain any pecuniary advantage within the meaning of Section 13(1)(d) R/w.13(2) of the PC Act. Both the charges under Sections 7 and 13(1)(d) R/w.13(2) of the PC Act must fail in the absence of proof of demand. PW.1 was not a reliable witness. The learned Special Judge imposed the conviction basing on the assumptions and presumptions. AO was falsely implicated because he was filing several cases against the traders for violation of law. PW.1 was used as a tool to file a false case. PW.3 was the stock mediator to ACB Officials. There was no proper verification before registering the FIR. With the above submissions, learned counsel would contend that the Appeal is liable to be allowed by setting-aside the conviction. 13. PW.1 was used as a tool to file a false case. PW.3 was the stock mediator to ACB Officials. There was no proper verification before registering the FIR. With the above submissions, learned counsel would contend that the Appeal is liable to be allowed by setting-aside the conviction. 13. Smt. A.Gayathri Reddy, learned Standing Counsel-cum-Special Public Prosecutor for ACB, appearing for the respondent-State, would submit that the conduct of PW.1 is such that he knows very well the contents of Ex.P-1. However, he deposed that they are false. He admitted that the contents of his 164 Cr.P.C statement are true. She would submit that the contents of his 164 Cr.P.C statement are similar to that of the allegations in Ex.P-1. During the cross-examination by the learned defence counsel, he introduced a new theory that he was forced to give his 164 Cr.P.C. statement. The conduct of PW.1 is such that he appears to have given false evidence before the learned Special Judge. However, the learned Special Judge, while convicting the AO, did not choose to subject PW.1 for perjury. She would submit that though the demand is a sine-qua-non to prove the offences under Sections 7 and 13(1)(d) R/w. Section 13(2) of the PC Act and though there is no direct evidence, prosecution can as well succeed basing on the circumstantial evidence. There are favourable circumstances in the case of the prosecution. The raid was conducted in the house of PW.1 around 09:00 p.m. Both hand fingers of AO and the inner linings of the table drawer yielded positive result. AO was comfortably sitting in the chair before a table when the trap party entered into his house. If really, PW.1 thrust the amount, forcibly, into the hands of AO and later into the table drawer, reaction of AO would have been different by raising hue and cry, by chasing him out and by throwing the amount to the ground. These things were not found from the conduct of AO. Even there is no whisper from him that he made any effort to pick up the so called currency notes from the table drawer immediately by raising hue and cry. These things were not found from the conduct of AO. Even there is no whisper from him that he made any effort to pick up the so called currency notes from the table drawer immediately by raising hue and cry. So, the silence on the part of the AO by literally sitting in the chair opposite to the table drawer when the ACB Officials entered into his house means that obtainment of Rs.5,000/- from PW.1 by AO was nothing but on a demand. Though there was no official favour practically pending before AO prior to the trap and on the date of trap, but evidence is sufficient to convict the appellant especially under Section 13(1)(d) R/w.13(2) of the PC Act. She would further submit that the learned Special Judge was inclined to believe the evidence adduced with proper reasons as such there are no grounds to interfere with the judgment and it is liable to be dismissed. 14. Firstly, this Court would like to project here the substance of Ex.P-1 - written report lodged by PW.1. As seen from Ex.P-1, it is a report written by PW.1 in Telugu with his own hand writing alleging in substance that he is doing retail rice business at Dr.No.23/288-5 in Batchupet Machilipatnam. One month back, AO came to his shop and demanded bribe and threatened him that if he does not pay the bribe, he will lift samples from his shop and would file false case against him. The AO also sent one Pandu, a private person, in this regard for collection of bribe amount. Pandu came and told him that he has to meet to AO to pay bribe and he (PW.1) told him that he will meet AO. Then, Pandu took him to the house of AO and he told to AO that he being a petty businessman cannot pay such bribe amount. AO did not hear and stated that he did not pay bribe during the previous year also and asked him to meet him at his house on 17.07.2003 night and to pay a total bribe of Rs.5,000/- i.e., for two years. This is the sum and substance of allegations in Ex.P-1. 15. When it comes to the evidence of PW.1, admittedly, he did not support the case of prosecution. According to him, he does not know AO. This is the sum and substance of allegations in Ex.P-1. 15. When it comes to the evidence of PW.1, admittedly, he did not support the case of prosecution. According to him, he does not know AO. He presented a written report to ACB on 16.07.2003, which is Ex.P-1 alleging that AO demanded him bribe of Rs.5,000/- for not lifting samples from his shop and book a false case against him. DSP, ACB asked him to come to Police Guest House, Machilipatnam at 06:00 p.m. along with the proposed bribe amount. Accordingly he went there. DSP, ACB did not introduce him with any mediators. He was not asked by anybody about the contents of Ex.P-1. He was asked by the DSP, ACB whether he brought the proposed bribe amount, for which he replied in positive. On instructions of the DSP, ACB, he gave the currency notes to one Constable. After receiving currency notes, the DSP, ACB asked him to wait outside. Later he does not know what happened. In his presence no chemical test was conducted by the DSP, ACB. After one and half hour, he was asked by the Constable to come into the guest house and Constable kept Rs.5,000/- in his left side shirt pocket. DSP, ACB instructed him to pay the amount to AO. Then they proceeded to the house of AO by walk. He alone went into the house of AO, AO was present then. He informed him that he was sent by one Pandu, whose address particulars he does not know. He offered cash of Rs.5,000/- to AO, but AO refused to receive it. Then, he kept the cash of Rs.5,000/- in the table drawer of AO, which was left open. Thereafter, he came out. ACB Police enquired him as to whether he gave the amount. He replied in positive. ACB Police, six in number, rushed into the house of AO. He was asked by them to go away and then he left. He was not enquired or examined by the ACB officials. Ex.P-2 is his signature in all the pages of his 164 Cr.P.C. statement recorded by the Magistrate. 16. The learned Special Public Prosecutor got declared him as hostile and during cross-examination he deposed that the contents in Ex.P-1 are all false. Knowing that the contents of Ex.P-1 are false, he gave the report to ACB Police. Ex.P-2 is his signature in all the pages of his 164 Cr.P.C. statement recorded by the Magistrate. 16. The learned Special Public Prosecutor got declared him as hostile and during cross-examination he deposed that the contents in Ex.P-1 are all false. Knowing that the contents of Ex.P-1 are false, he gave the report to ACB Police. He admitted that the contents of his statement made before the Magistrate are true and correct. He denied that the contents of Ex.P-1 are true and it is his voluntary report. He further denied the case of prosecution during cross-examination by the learned Special Public Prosecutor. 17. PW.2 was the owner of the house in which AO was residing in one portion and he (PW.2) was residing in another portion. The prosecution examined him to speak about the events happened but he did not support the case of prosecution. According to him, at the time of trap, he was not in his portion and he was present in the portion of AO. Special Public Prosecutor cross-examined him and he denied that he stated before the DSP, ACB as in Ex.P-4 as if he was present in his portion and came to know about the trap. 18. Turning to the evidence of PW.3, who was a mediator to the pre-trap and post-trap proceedings, he supported the case of prosecution. He spoke of the pre-trap events to the effect that at the instruction of DSP, ACB, they verified the contents of FIR by enquiring with PW.1. PW.1 confirmed before them about the contents as true and produced a cash of Rs.5,000/- in Rs.500/-denominations (Rs.500 x 10) and they verified it and the DSP, ACB demonstrated a chemical test with reference to the phenolphthalein powder and the DSP, ACB explained about its significance to them and PW.1. Further, the said amount was kept in the left side shirt pocket of PW.1 with an instruction to pay it to AO only on his further demand. With reference to the post-trap events, his evidence is that PW.1 proceeded to the house of AO at about 08:45 p.m. and they received the pre-arranged signal from PW.1 at 09:00 p.m. and they rushed into the house of AO. In the meanwhile, the DSP, ACB instructed PW.1 to wait outside. They found a person, who was sitting on a chair in front of the table. In the meanwhile, the DSP, ACB instructed PW.1 to wait outside. They found a person, who was sitting on a chair in front of the table. The DSP, ACB disclosed his identity particulars and ascertained that he is the AO. The DSP, ACB introduced the trap party members to him. He got conducted Sodium Carbonate Solution test to both hand fingers of AO, which yielded positive result. On enquiry by the DSP, ACB with AO about the tainted amount, he opened the left side table drawer and showed the tainted amount. On instructions of the DSP, ACB the 2nd mediator took up the amount and verified the serial numbers tallying with the description mentioned in the pre-trap proceedings. The DSP, ACB seized cash of Rs.5,000/- which is MO-3. He got conducted chemical test to the inner portion of table drawer which yielded positive result. He preserved both the resultant solutions into separate bottles. DSP, ACB enquired AO as to what transpired between him and PW.1 and his version was reduced into writing. He confronted with PW.1 as to the version of AO and his version was also reduced into writing. The DSP, ACB further enquired the wife of AO and her version was also recorded. 19. The evidence of PW.5 – DSP, ACB is consistent with that of the evidence of PW.3 with regard to the pre-trap and post-trap events. 20. PW.6 is the ACB, Inspector, who testified that at the instructions of PW.5, he conducted discrete enquiries against PW.1 and AO, made an endorsement on Ex.P-1 and submitted to the DSP, ACB on 17.07.2003. He assisted the DSP, ACB during the pre-trap and post-trap events. 21. PW.7 was one Panduranga Rao, who worked as clerk in a sundry shop and acted as Secretary, Vasavi Merchants Sundry Shop Owners Association on the date of alleged trap. He turned hostile to the case of prosecution. During cross-examination, he denied that he stated before DSP, ACB as in Ex.P-11. He further denied that he knows AO and PW.1 and to help AO, he is deposing false. 22. He turned hostile to the case of prosecution. During cross-examination, he denied that he stated before DSP, ACB as in Ex.P-11. He further denied that he knows AO and PW.1 and to help AO, he is deposing false. 22. Prosecution got examined PW.8 – Municipal Commissioner with regard to the nature of duties of AO and according to him AO worked as Sanitary and Food Inspector and he being a Food Inspector has the power to take samples of any articles of food from any person who is selling such articles or any person who is in the course of delivering or preparing to deliver such articles to a purchaser. He has powers under Food Adulteration Act also. He came to know that AO was trapped. 23. To succeed in a charge framed under Section 7 of the PC Act, admittedly, it is the bounden duty of the prosecution, firstly, to prove the pendency of official favour coupled with the demand for bribe. Insofar as the charge under Section 131)(d) R/w.13(2) of the PC Act is concerned, the prosecution has to prove further by corrupt or illegal means or by abusing official position as public servant AO obtained any pecuniary advantage with such demand. These are all the things to be satisfied by the prosecution to succeed in the charges. 24. Ex.P-1 was in the handwriting of PW.1. It is not in dispute that it alleges the attribution of demand by AO to PW.1 to pay bribe of Rs.5,000/-. According to PW.1, the contents of Ex.P-1 are all false. He admitted in cross-examination by the learned Special Public Prosecutor that the contents of his statement under 164 Cr.P.C are true. If that is considered the contents of 164 Cr.P.C statement of PW.1 with reference to the demand attributed against AO are similar to the contents in Ex.P-1. During cross-examination by the learned defence counsel, PW.1 branded his 164 Cr.P.C statement as false by stating that at the compulsion of ACB officials he gave such a statement and it is not at all voluntary. The conduct of PW.1 initially deposing that he does not know AO but admitting that he lodged Ex.P-1 and later branding it as false and later stating that 164 Cr.P.C statement is true and later branding it as false because it was given on account of compulsion means that he declared himself as a liar. The conduct of PW.1 initially deposing that he does not know AO but admitting that he lodged Ex.P-1 and later branding it as false and later stating that 164 Cr.P.C statement is true and later branding it as false because it was given on account of compulsion means that he declared himself as a liar. He is not an illiterate. He admitted that he has written Ex.P-1. A close scrutiny of the contents of Ex.P-1, his evidence before the trial Court, his statement under 164 Cr.P.C. before the Magistrate, further his admissions during the course of cross-examination by the learned Special Public Prosecutor and his answers in cross-examination clinchingly goes to show that he appears to have given false evidence. No inference is possible except the inference that he appears to have given false evidence for the reasons best known to him. However, simply because PW.1 appears to have given false evidence giving a go bye to the case of the prosecution, the case of the prosecution cannot be thrown out. It is no doubt true that proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine-qua-non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d)(i)and(ii) of the PC Act as rightly contended by learned counsel for the Appellant/AO. 25. It is to be noted that a Constitutional Bench of the Hon’ble Apex Court in Neeraj Dutta v. State (Government of NCT of Delhi), (2022) SCC OnLine SC 1724, examined it’s earlier decisions in B. Jayaraj v. State of A.P., (2014) 13 SCC 55 , P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another, (2015) 10 SCC 152 and M. Narsinga Rao v. State of A.P., (2001) 1 SCC 691 and held that there is no conflict in the three Judge Bench decision of the Hon’ble Apex Court therein. The Hon’ble Apex Court in Neeraj Dutta (1st supra) at Para No.68, summarized the conclusions arrived at, and held as follows: “68. The Hon’ble Apex Court in Neeraj Dutta (1st supra) at Para No.68, summarized the conclusions arrived at, and held as follows: “68. What emerges from the aforesaid discussion is summarized as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the Accused public servant Under Sections 7 and 13(1)(d)(i) and (ii) of the Act. (b) In order to bring home the guilt of the Accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence Under Section 13(1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment Under Section 13(1)(d) and (i) and (ii) of the Act. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d)(i) and (ii) of the Act. (h) We clarify that the presumption in law Under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.” 26. By virtue of the above, it is quite clear that, in the event the complainant turns hostile or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved even by circumstantial evidence. 27. Now, this Court would like to examine as to whether there are any favourable circumstances in the form of evidence in favour of the prosecution so as to bring the guilt against the AO. Needless to point out here that the learned Special Judge, though PW.1 turned hostile, but looked into other aspects in the case of prosecution and arrived at a conclusion that the prosecution proved the charges framed against the accused. 28. Now, in the light of the decision of the Hon’ble Apex Court in Neeraj Dutta (1st supra), this Court would like to examine whether there is any other form of evidence to bring the guilt against the AO. It is to be noted that according to the version of AO in the post-trap, when the complainant offered to pay a sum of Rs.5,000/-, AO refused to receive it and then the complainant kept the amount in his table drawer. When it comes to the evidence of PW.1, he deposed that when he offered cash of Rs.5,000/- he refused to receive it and then he kept the amount of Rs.5,000/- in the table drawer of AO, which was left open. During cross-examination by learned defence counsel, PW.1 deposed that the AO never demanded and accepted any amount from him and he forcibly kept the cash of Rs.5,000/- in the table drawer of AO in spite of his protest. Absolutely, the evidence of PW.1 did not disclose any circumstance explaining the manner in which hands of AO contacted with the phenolphthalein powder. Absolutely, the evidence of PW.1 did not disclose any circumstance explaining the manner in which hands of AO contacted with the phenolphthalein powder. As seen from the evidence of PW.3 – mediator and PW.5 – Trap Laying Officer, when the hands of AO were subjected to chemical test it yielded positive result. It is to be noted that the AO during the course of cross-examination of PW.2, who turned hostile, got an answer from PW.2 that the ACB Police got picked up the cash of Rs.5,000/- from AO and then conducted sodium carbonate solution test. So, by virtue of the answer from PW.2, the contention of AO was that because he was compelled to pick out the tainted amount from the table drawer, his hands contacted with the phenolphthalein powder as such there was a possibility that his hands contacted with the phenolphthalein powder. During the written statement, the contention of AO was that PW.1 all of a sudden kept the tainted amount into his both hands for which he refused and thereafter he forcibly thrust the amount in the table drawer. During the course of cross-examination of PW.3, he deposed that AO stated in his version that he neither demanded nor accepted the bribe amount from PW.1 and when PW.1 tried to offer, he forcibly refused to receive the same and on that PW.1 kept the tainted amount in the table drawer, forcibly. It is not suggested to PW.1 that AO stated before the DSP, ACB in the post-trap that PW.1 kept the amount in the hands of AO forcibly and when he refused to receive it, it was kept in the table drawer. 29. Coming to the cross-examination of PW.5 – Trap Laying Officer, no such suggestion was given to PW.6. So, now the fact remained is that though PW.3 originally acted as a mediator in some other ACB case but on that count his evidence cannot be disbelieved. Absolutely, PW.3, who was a public servant and who was bound to assist the ACB officials in detection of these types of cases, has no reason to depose false. So, now the fact remained is that though PW.3 originally acted as a mediator in some other ACB case but on that count his evidence cannot be disbelieved. Absolutely, PW.3, who was a public servant and who was bound to assist the ACB officials in detection of these types of cases, has no reason to depose false. This court has no reason, whatsoever, to disbelieve the evidence of PW.3 and PW.3 insofar as conducting of chemical test to both hand fingers of AO, firstly, and their turning to positive and later asking the AO as to where is the tainted amount and the act of AO in showing the tainted amount. The sequence of events by virtue of the evidence of PW.1 is such that firstly the DSP, ACB conducted chemical test to both hand fingers of AO which yielded positive result and thereafter only the tainted amount was recovered from the table drawer at the instance of AO. There is no dispute that the inner linings of the table drawer when they were subjected to chemical test also yielded positive result. One of the circumstances established by the prosecution is that AO dealt with the tainted amount with his both hands, as such it yielded positive result and further the place from where the tainted amount was traced also yielded positive result when it was subjected to chemical test. These circumstances are quietly proved by the prosecution beyond any reasonable doubt. 30. Another favourable circumstance in the case of prosecution was that the place of recovery and the place of episode was happened in the house of AO around 09:00 p.m. AO had no business to allow PW.1 into his house firstly. It is to be noted that, as pointed out, PW.1 branded himself as a liar. He set the criminal law into motion by lodging Ex.P-1 report with his own hand writing and later gave a go bye to the case of prosecution. It is to be noted that though, literally, there is no direct evidence with regard to the demand for bribe or obtainment but in the light of the decision of the Hon’ble Apex Court in Neeraj Dutta (1st supra), the Court can look into other circumstances to say as to whether the demand is proved by virtue of any circumstantial evidence. It is to be noted that the place of recovery of the tainted amount was in the house of AO. Even according to the evidence of PW.1, who favoured the defence of AO for obvious reasons, there was silence on the part of AO though he claimed to have kept the amount in the table drawer with force. The evidence of PW.3 – Mediator and PW.5 – Trap Laying Officer shows when they entered into the house of AO, after receiving a pre-arranged signal, AO was comfortably sitting in the chair in front of his table drawer. No contra version was suggested to PW.3 and PW.5 in this regard that whether AO was in any disturbed mood on account of the alleged act of PW.1 in thrusting the amount by picking out from the table drawer and by shouting for PW.1 or by chasing PW.1 to return the amount to PW.1. So, their evidence quietly proves the fact that AO was silently sitting in his chair in a comfortable position. A man of reasonable prudence in the given situation, if really the amount was thrust in the table drawer, that too at his residence at odd hours from a stranger, would not have kept quiet and definitely would have raised hue and cry by shouting against the stranger. So, the silence on the part of AO when PW.3 and PW.5 spotted the AO means that the very defence of the AO that PW.1 forcibly thrust the amount into the table drawer proved to be false. So, the chain of circumstance in favour of the prosecution is that the recovery of the tainted amount was in the house of AO at odd hours and further the AO was silent positively without raising any protest though PW.1 thrust the amount into the table drawer. All these chain of circumstances which are categorically proved by the prosecution leads to an irresistible and un-erring conclusion that what all the amount that was received by AO from PW.1 was nothing but on a demand. These circumstances which are quietly established by the prosecution cumulatively proves the fact that obtainment of an amount of Rs.5,000/- by AO from PW.1 is nothing but on a demand. 31. These circumstances which are quietly established by the prosecution cumulatively proves the fact that obtainment of an amount of Rs.5,000/- by AO from PW.1 is nothing but on a demand. 31. This Court is conscious of the fact that though evidence on record leads to an irresistible conclusion that obtaining of Rs.5,000/- by AO from PW.1 is nothing but on a demand but to establish a charge under Section 7 of the PC Act, prosecution has to prove the pendency of official favour prior to the date of trap or on the date of trap. There was no issue of PW.1 pending with AO in this regard so as to do any official favour. It is not that AO visited the shop of PW.1 and lifted any samples and that for doing any official favour or from forbearing to do anything which the AO was bound to do, he demanded any bribe amount. Hence, the crucial ingredients of Section 7 of the PC Act are missing, though the prosecution is able to prove the demand for a sum of Rs.5,000/-. However, the case of the prosecution quietly extracts the charge under Section 13(1)(d) R/w.13(2) of the PC Act. The act of AO in demanding PW.1 to pay a sum of Rs.5,000/- by threatening to lift samples or to file cases against PW.1 is nothing but an act by corrupt or illegal means so as to obtain valuable thing or pecuniary advantage or by abusing his official position as a public servant to obtain the pecuniary advantage. So, the case of the prosecution quietly attracts the essential ingredients of Section 13(1)(d)(i) and (ii) R/w.13(2) of the PC Act. 32. In the light of the above, this Court is of the considered view that though PW.1 turned hostile the evidence on record proves that the very obtaining of a sum of Rs.5,000/- by AO from PW.1 is nothing but by corrupt or illegal means by abusing his official position with demand as such it quietly proves the charge under Section 13(1)(d) R/w.13(2) of the PC Act beyond reasonable doubt. Prosecution did not prove the charge under Section 7 of the PC Act beyond reasonable doubt as such AO is liable to be exonerated of the charge under Section 7 of the PC Act. Prosecution did not prove the charge under Section 7 of the PC Act beyond reasonable doubt as such AO is liable to be exonerated of the charge under Section 7 of the PC Act. Therefore, the ultimate conclusion of this Court is that Appeal is liable to be allowed insofar as the charge under Section 7 of the PC Act and liable to be dismissed insofar as the charge under Section 13(1)(d) R/w.13(2) of the PC Act is concerned respectively. 33. As this Court already pointed out, PW.1, having set the criminal law into motion, appears to have given false evidence. The Anti Corruption Bureau is a statutory authority to look into the allegations against the public servants with regard to the allegations of bribe or amassing disproportionate assets etc. So, on account of the act of PW.1, the statutory investigating agency i.e., ACB swung into action, registered the FIR and laid a charge sheet against the AO. However, for obvious reasons, PW.1 appears to have given false evidence. Though all these things were in the knowledge of the learned Special Judge, the learned Special Judge did not exercise his discretion to subject PW.1 to perjury. Looking into the facts and circumstances, this Court is of the considered view that PW.1 appears to have given false evidence and it is expedient in the interest of Justice to subject him the prosecution for the offence of perjury. 34. Section 340 of the Cr.P.C runs as follows: “340. Procedure in cases mentioned in Section 195. Looking into the facts and circumstances, this Court is of the considered view that PW.1 appears to have given false evidence and it is expedient in the interest of Justice to subject him the prosecution for the offence of perjury. 34. Section 340 of the Cr.P.C runs as follows: “340. Procedure in cases mentioned in Section 195. (1) When upon an application made to it in this behalf or otherwise any Court is of opinion that it is expedient in the interest of justice that an inquiry should be made into any offence referred to in clause (b) of sub-section (1) of section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary, - (a) record a finding to that effect; (b) make a complaint thereof in writing; (c) send it to a Magistrate of the first class having jurisdiction; (d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such magistrate; and (e) bind over any person to appear and give evidence before such Magistrate. (2) The power conferred on a Court by sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under sub-section (1) in respect of that offence nor rejected an application for the making of such complaint, be exercised by the Court to which such former Court is subordinate within the meaning of sub-section (4) of Section 195. (3) A complaint made under this section shall be signed, - (a) where the Court making the complaint is a High Court, by such officer of the Court as the Court may appoint; (b) in any other case, by the presiding officer of the Court [or by such officer of the Court as the Court may authorize in writing in this behalf]. (4) In this section, "Court" has the same meaning as in Section 195.” 35. (4) In this section, "Court" has the same meaning as in Section 195.” 35. As seen from Section 195(1)(b)(i) Cr.P.C, a prosecution can be initiated on complaint in writing of the Court or of some other Court to which that Court is subordinate. Having regard to Sections 340 and 190 Cr.P.C. as the learned Special Judge did not choose to exercise its power to make a complaint against PW.1 for giving false evidence under Section 191 IPC, punishable under Section 193 IPC, and such powers can also be exercised by this Court to which the Court of Special Judge for SPE and ACB Cases is subordinate, it is appropriate to make a direction to the learned Special Judge for SPE and ACB Cases, Vijayawada to make a complaint in writing before the concerned Chief Metropolitan Magistrate, Vijayawada to initiate prosecution against PW.1 for the offence of perjury under Section 191 IPC punishable under Section 193 IPC. It is expedient in the interest of justice to make such direction to the learned Special Judge for SPE and ACB Cases, Vijayawada as PW.1 appears to have flouted the law. 36. In the result, the Criminal Appeal is allowed in part accordingly setting-aside the conviction and sentence imposed against the Appellant/AO for the charge under Section 7 of the PC Act is concerned and the Appeal insofar as the conviction and sentence imposed against the Appellant/AO for the charge under Section 13(1)(d) R/w.13(2) of the PC Act is concerned, it is dismissed confirming the conviction and sentence imposed therein. The appellant/AO is entitled to receive the fine amount, if any, paid by him under Section 7 of the PC Act. 37. The learned Special Judge for SPE and ACB Cases, Vijayawada in the light of the observations made by this Court in the judgment is directed to make a complaint in writing under Section 340 Cr.P.C against PW.1 for prosecuting him for the offence of perjury under Section 191 IPC, punishable under Section 193 IPC, in accordance with law, before the concerned Chief Metropolitan Magistrate, Vijayawada within a period of three (3) weeks from the date of receipt of a copy of this judgment including the entire trial Court record. 38. 38. The Registry is directed to take steps immediately under Section 388 Cr.P.C to certify the judgment of this Court along with the trial Court record, if any, to the learned Special Judge for SPE and ACB Cases at Vijayawada on or before 05.02.2024 through special messenger and on such certification, the learned Special Judge shall take necessary steps to carry out the remaining sentence imposed against the Appellant/Accused Officer in C.C. No.24 of 2004, dated 25.06.2007, and to report compliance to this Court. The learned Special Judge shall make a complaint in writing, in accordance with Section 340 Cr.P.C. in view of the observations made by this Court, before the concerned Chief Metropolitan Magistrate, Vijayawada, within a period of three (3) weeks from the date of receipt of a copy of this judgment along with the original record, in accordance with law, and to report compliance to this Court immediately thereafter about the factum of making a complaint in writing, as above. A copy of this judgment be placed before the Registrar (Judicial), forthwith, for giving necessary instructions to the concerned Officers in the Registry and to submit appropriate report before this Court on receipt of compliance report from the learned Special Judge about making a complaint in writing under Section 340 Cr.P.C. before the concerned Chief Metropolitan Magistrate. Consequently, Miscellaneous Applications pending, if any, shall stand closed.