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2025 DIGILAW 2604 (KER)

M. G. Ajaykumar v. State Of Kerala

2025-10-06

A.BADHARUDEEN

body2025
JUDGMENT : A. BADHARUDEEN, J. This appeal has been filed under Section 374(2) of the Code of Criminal Procedure, 1973, by the accused in C.C. No.169/2016 on the files of the Court of the Enquiry Commissioner and Special Judge, Muvattupuzha, challenging the conviction and sentence imposed by the Special Judge as per the judgment dated 30.11.2017. The State of Kerala, represented by the Public Prosecutor is arrayed as the sole respondent herein. 2. Heard the learned senior counsel for the appellant and the learned Public Prosecutor, in detail. Perused the verdict under challenge, the records of the trial court as well as the decisions placed by the learned senior counsel for the appellant. 3. Parties in this appeal shall be referred as ‘accused’ and ‘prosecution’, hereafter. 4. In this matter, the prosecution case is that, the accused, while working as the Block Development Officer, Devikulam, demanded Rs.5,000/- as illegal gratification from one Geetha Aji, W/o Aji K.K, examined as PW4, for releasing the balance amount of the housing grant sanctioned to her. In continuation of the said demand, the accused demanded and accepted the bribe money at 4.30 p.m. on 11.09.2013, as deposed by Geetha Aji and her husband, Aji K.K. On this premise, the prosecution alleges commission of offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 [hereinafter referred as ‘P.C. Act’ for short], by the accused. 5. After, framing charge for the offences under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act, the Special Court recorded evidence and tried the matter. During trial, PWs 1 to 11 were examined, Exts.P1 to 28 and MOs 1 to 7 were marked on the side of the prosecution. Even though, the accused was given opportunity to adduce defence evidence, after questioning him under Section 313(1)(b) of Cr.P.C, he did not opt to adduce any defence evidence. 6. On appreciation of evidence, the Special Court found that the accused was guilty for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act and accordingly, he was convicted and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.20,000/- and in default to pay fine, to undergo simple imprisonment for one month under Section 13(1)(d) read with 13(2) of the P.C. Act. No separate sentenced was awarded for the offence under Section 7 of the P.C. Act. Set off was allowed to the accused, as per law. 7. The learned senior counsel for the accused/appellant vehemently argued that, in this case, on conducting phenolphthalein test on both hands of the accused, there was no color change. According to the learned senior counsel for the accused, the housing grant was provided to PW4, under the Indira Avas Yojana (IAY) and Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA), out of which 50% of the amount was the contribution of the Central Government and 50% was the contribution of Local Self Government Institution. According to him, there occurred delay in granting Rs.85,000/- to PW4 and the accused was not in a position to release Rs.85,000/-, because of non-providing of grant by the Panchayat. It is submitted further that, PW8, the Member of the Devikulam Block Panchayat, during the relevant period, recommend the same. According to the learned senior counsel for the accused, the balance amount would not be given for the said reason. At this juncture, this case has been foisted against the accused, without the support of any materials, as instigated by PW8. The learned senior counsel for the accused also submitted that, in this matter, PW1, during his examination testified that a camera was installed in the pocket of his shirt, before proceeding to the office of the accused, on the date of trap. But, the video recordings thereof were not produced before the Special Court. Further, the prosecution is silent as to whether there is any recorded video of the trap proceedings. It is pointed out that, if the said video recording was let in in evidence by the prosecution, the case of the accused could have been proved to find him not guilty of the offences alleged. According to the learned senior counsel for the accused, the specific case of the accused is that, the date of trap was prior to the Onam holidays and the accused, as part of Onam celebrations used to go outside the office and come back. According to the learned senior counsel for the accused, the specific case of the accused is that, the date of trap was prior to the Onam holidays and the accused, as part of Onam celebrations used to go outside the office and come back. By enjoying the absence of the accused, PW1 put bribe money inside the drawer of the table of the accused, without his knowledge and thereby, he had no contact with the bribe money and hence, during phenolphthalein test of his hands, there was no color change occurred to the sodium carbonate solution. According to the learned senior counsel for the accused, if there is any video recording, the same should have been produced before the Court and suppression of the said vital evidence would go to the root of the matter and this aspect is to be adjudged in favour of the accused, recording adverse inference against the prosecution. In this regard, the learned senior counsel for the accused placed decision of the Apex Court reported in [MANU/SC/0057/2015 : 2015 (2) acr 1747 : (2017) 7 SCC 178] Tomaso Bruno v. State of U.P. , with reference to paragraph Nos.27 and 28, wherein the Apex Court held as under: 27. The trial court in its judgment held that non-collection of CCTV footage, incomplete site plan, non-inclusion of all records and sim details of mobile phones seized from the accused are instances of faulty investigation and the same would not affect the prosecution case. Non- production of CCTV footage, non-collection of call records (details) and sim details of mobile phones seized from the accused cannot be said to be mere instances of faulty investigation but amount to withholding of best evidence. It is not the case of the prosecution that CCTV footage could not be lifted or a CD copy could not be made. 28. As per Section 114(g) of the Evidence Act, if a party in possession of best evidence which will throw light in controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. The presumption Under Section 114(g) of the Evidence Act is only a permissible inference and not a necessary inference. The presumption Under Section 114(g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption Under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption, Under Section 114 of the Evidence Act, the Court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption Under Section 114(g) of Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party. 8. The learned senior counsel for the accused also conceded that, this decision was overruled as per the decision of the Apex Court reported in [ (2022) 7 SCC 1 ] Veena Singh (dead) Through Legal Representative v. District Registrar/Additional Collector (F/R) and Another , though both judgments were rendered by Three Bench of the Apex Court. However, the observation in paragraph Nos.27 and 28 was not overruled and the same is still good law. The learned senior counsel for the accused also submitted that, in the 313 statement given by the accused, he had narrated his case and the manner in which he had been implicated in this crime, in detail. 9. The sum and substance of the argument at the instance of the learned senior counsel for the accused is that, the evidence available in this case is insufficient to find guilt of the accused beyond reasonable doubt and the case of the accused is also probable, negating the prosecution case. Accordingly, he pressed for interference of the verdict impugned to record acquittal of the accused. 10. Per contra, it is submitted by the learned Public Prosecutor that, in this matter, evidence given by PWs 1, 2, 4, 5, 10 and 11, would substantiate the prosecution case that, the accused committed the offences alleged by the prosecution, without any iota of doubt. 10. Per contra, it is submitted by the learned Public Prosecutor that, in this matter, evidence given by PWs 1, 2, 4, 5, 10 and 11, would substantiate the prosecution case that, the accused committed the offences alleged by the prosecution, without any iota of doubt. According to the learned Public Prosecutor, though during cross-examination of PW1, he deposed that a camera was installed in the pocket of his shirt, he also deposed that he was unaware of any recording of the proceedings. It is also pointed out by the learned Public Prosecutor that, in fact, the evidence of PW1 is to the effect that, nothing recorded in the camera and nothing elicited through any of the witnesses cited by the prosecution, including the Investigating Officers, to see that there was any recording of the proceedings using the camera. That apart, the prosecution has no such case. Thus, the prosecution evidence in no way would suggest that, proceedings of the trap were recorded and therefore, it is impossible for the prosecution to justify the proceedings recorded in the camera, as such, no adverse inference to be taken in the instant case. The learned Public Prosecutor would submit that, as regards to demand and acceptance of bribe by the accused are concerned, the evidence available fully established the same and therefore, the Special Court rightly entered into conviction as well as sentence and the same do not require any interference. 11. In view of the rival submissions, the questions arise for consideration are: 1.Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 7 of the P.C. Act? 2. Whether the Special Court is justified in finding that the accused/appellant committed the offence punishable under Section 13(2) read with 13(1)(d) of the P.C. Act? 3. Whether the verdict of the Special Court would require interference? 4. Order to be passed? 12. In order to address these questions, it is necessary to evaluate the evidence, in this case. PW1, examined is Sri.Aji K.K, who was working as a driver. According to him, he had given Ext.P1 First Information Statement before the Dy.S.P. He deposed that, a loan of Rs.2,00,000/- was sanctioned in the name of his wife from the Block Development Office, Devikulam, for the construction of their house. PW1, examined is Sri.Aji K.K, who was working as a driver. According to him, he had given Ext.P1 First Information Statement before the Dy.S.P. He deposed that, a loan of Rs.2,00,000/- was sanctioned in the name of his wife from the Block Development Office, Devikulam, for the construction of their house. PW1 deposed that, the loan was applied through, Sujatha Ravi, Panchayat Member, who got examined as PW8 and they obtained six installments of the said loan. When his wife approached the Block Development Office for obtaining the last installment of Rs.85,000/-, the accused demanded Rs.5,000/- as bribe for disbursing the entire amount or else the accused instructed that he would disburse Rs.50,000/- alone. According to PW1, the accused told his wife that, if an amount of Rs.5,000/- was given to him, cheque for the balance amount of Rs.35,000/- would be given. He deposed further that, since they had no money to give the bribe amount, they informed the same to the Vigilance. He also deposed about the presence of the Gazetted Officers on the date of trap and the Vigilance Officers and the place of occurrence and about the demonstration of phenolphthalein test by using another note and dipping of the same in sodium carbonate solution and its pink color change. According to him, at about 11.00 am on 11.09.2013, he along with Dy.S.P. and Gazetted Officers proceeded to Devikulam and they reached at Block Development Office, Devikulam at about 2.45 p.m. According to PW1, the Dy.S.P. informed him that the amount should be given only if it was demanded by the accused. Since there were some peoples standing on que for obtaining money, PW1 and his wife stood behind them and they could meet the accused at 4.10 p.m. On seeing PW1, the accused asked about the bribe money demanded and PW1 answered in the affirmative. PW1 taken the money entrusted by the Dy.S.P. and gave the same to the accused. The accused instructed him to put the same in the drawer of the table and accordingly, PW1 put the money in the drawer. Thereafter, the accused took the loan file and wrote the amount as Rs.30,000/-. When, PW1 informed him that there was a deficit of Rs.5,000/- he corrected the amount as Rs.35,000/-. During this time, the wife of PW1, who was examined as PW4, was also present near the door. Thereafter, the accused took the loan file and wrote the amount as Rs.30,000/-. When, PW1 informed him that there was a deficit of Rs.5,000/- he corrected the amount as Rs.35,000/-. During this time, the wife of PW1, who was examined as PW4, was also present near the door. Thereafter, as instructed by the Dy.S.P, he patted on his head and gave signal showing demand and acceptance of bribe by the accused. Soon, the Dy.S.P. and other two officials entered into the room and when the Dy.S.P. asked as to whom he had handed over the money, PW1 stated that the money was given to the accused, after pointing him. When Dy.S.P. asked as to whether the money was handed over to the accused, PW1 stated that the same was put inside the drawer of the table. When the accused was asked to open the drawer, he stated that, he did not have the key to open the same. But, the Dy.S.P. traced it out from near the table and opened the drawer and found the money inside the drawer. The same was identified as MO1 series, five in numbers, as the bribe amount handed over to the accused. Even though, PW1 was subjected to searching cross-examination, nothing extracted to disbelieve his version as to demand and acceptance of bribe by the accused. 13. Apart from the evidence of PW1, the prosecution examined PW2, one of the Gazetted Officers, who accompanied the trap team. He was working as Assistant Engineer, PWD, during the year 2013. He deposed that on 11.09.2013, as per the direction of his Superior, he went to the Vigilance office, Muttom. He reached there at 9.50 a.m. After sometime, the Lecturer from DIET, Thodupuzha, named Ramesh also came there. Both of them went to the room of the Dy.S.P. According to PW2, PW1 was present in the room. The Dy.S.P. introduced him to them. They were informed that a case was registered regarding the demand of bribe from PW1, and they were called for being witnesses to the proceedings. PW2 deposed that PW1 brought an amount of Rs.5,000/- for giving at the time of demand of bribe. He entrusted the amount to the Dy.S.P. It was in the denomination of 5 one thousand rupee notes. As directed by the Dy.S.P. they took down the number of the notes. PW2 deposed that PW1 brought an amount of Rs.5,000/- for giving at the time of demand of bribe. He entrusted the amount to the Dy.S.P. It was in the denomination of 5 one thousand rupee notes. As directed by the Dy.S.P. they took down the number of the notes. The Dy.S.P. put his initial on the notes and put the date at the portion of the water mark of the notes. 14. According to the PW2, the Dy.S.P. asked the police official to bring water in a glass and Sodium Carbonate solution in another glass and obtained the same. Phenolphthalein powder was put in both the glasses. There was no color change in the glass which contained water. But the Sodium Carbonate solution turned pink in color. Phenolphthalein powder was smeared over the notes produced by PW1 and the notes were put in the pocket of PW1. According to PW2, PW1 was instructed to give the money only on demand by the accused. Narrating the incident, Ext.P3 mahazar was prepared in which himself, the Dy.S.P. and the person name Ramesh affixed their signature. PW2 identified the notes as MO1 series. 15. PW2 testified further that, they proceeded towards Adimaly route and they consumed food at about 11 a.m. at Adimaly. They reached near the Block office at 2.45 pm. The vehicle was stopped before reaching the block office. PW1 was asked to get down. He was directed to give the bribe only on demand. Further, he was directed to show signal on receipt of bribe. The vehicle was parked in such a position that they could see the block office. PW2 and Ramesh sat inside the vehicle along with the Dy.S.P. PW2 deposed that, at 4.15 pm, the Dy.S.P. told them that signal was obtained and that they entered into the block office. They entered the corridor and went to the room of the accused, who was the Block Development Officer. The room was situated at the North-Western side. PW1 pointed out the accused. The Dy.S.P. introduced them to the accused and ascertained that the accused was the Block Development Officer. 16. PW2 deposed further that, when the Dy.S.P. asked as to whether he received bribe from PW1, he was perplexed, and he did not answer. The Dy.S.P. repeated the question and the accused replied that he did not receive in his hands and it was put inside the table. 16. PW2 deposed further that, when the Dy.S.P. asked as to whether he received bribe from PW1, he was perplexed, and he did not answer. The Dy.S.P. repeated the question and the accused replied that he did not receive in his hands and it was put inside the table. When the Dy.S.P. inspected the table it was seen locked. He asked the accused for the key. The accused replied that he did not know it. When the Dy.S.P. inspected the table, the key was found on the platform beneath the top of the table and above the drawer. The Dy.S.P. took the key and opened the drawer. Thousand rupee notes and Five hundred rupee notes were seen in the drawer. According to PW2, the Dy.S.P. convinced the accused that nothing was in their position. A police official, who was a member of the team brought Sodium Carbonate solution in a vessel. According to PW2, their hands and the hands of the Dy.S.P. were dipped in the solution. There was no colour change. The aforesaid solution was taken as sample, sealed and labeled. The label contained the signature of himself, Ramesh and the Dy.S.P. PW2 identified the same as MO2. Sodium Carbonate solution was taken in another vessel and the right hand of the accused was dipped in the solution. There was no color change. The aforesaid solution was also taken as sample and was sealed and labeled. PW2, the Dy.S.P. and Ramesh put their signature on the label. PW2 identified the same as MO3. Thereafter, the left hand of the accused was dipped in the Sodium Carbonate solution and there was no color change. The aforesaid solution was taken as sample, sealed and labeled. The label contained the signature of PW2, Ramesh and the Dy.S.P. PW2 identified the solution as MO4. 17. According to PW2, he was directed by the Dy.S.P. to take the notes kept in the drawer. Accordingly, he took the notes and he was convinced that they are the same notes of which number was taken down by him in the morning. Sodium Carbonate solution was taken in another vessel and the corner of the notes was dipped in the solution which became pink in color. The aforesaid solution was taken as sample and was sealed and labeled. They affixed their signature on the label. PW2 identified the same as MO5. Sodium Carbonate solution was taken in another vessel and the corner of the notes was dipped in the solution which became pink in color. The aforesaid solution was taken as sample and was sealed and labeled. They affixed their signature on the label. PW2 identified the same as MO5. Sodium Carbonate solution was taken separately and the hands of PW2 were dipped in the Sodium Carbonate solution. It became pink in color. The aforesaid solution was taken as sample and was sealed and labeled. PW2, Ramesh and the Dy.S.P. affixed their signature on the label. PW2 identified the aforesaid solution as M06. PW2 further deposed that, the body of accused was searched and 7 thousand rupee notes and 2 five hundred rupee notes were found in the right pocket of his pants. The accused did not make any sufficient explanation regarding the money. Apart from MO1 series, 2 five hundred rupee notes were also in the drawer of the table. PW2 deposed that MO7 series are the notes found in the possession of the accused and the aforesaid 2 five hundred rupee notes found inside the table. Narrating the incident Ext.P4 mahazar was prepared. They affixed their signature in Ext. P4. PW2 deposed that Ext.P5 is the searched list prepared at the time of search of the accused. According to PW2, since he was a field staff his journey would not be recorded in the movement register. He deposed that including them and the driver, there were 5 persons in the vehicle of the Dy.S.P. As regards the table of the accused, PW2 deposed that the top of the table was covered with glass. 18. In addition to that, PW10, a member of the trap team, also was examined. He deposed that, he had been working as Senior Civil Police Officer in VACB, Idukki. He also deposed that, they started at 11.00 a.m. and reached near the Block Office, Devikulam at about 2.45 p.m. According to him, after reaching the Block Development Office, the Dy.S.P. directed PW1 to go inside the office and handover the money to the accused on demand and there was a lady along with PW1. Later, it was understood that the lady was the wife of PW1. Later, it was understood that the lady was the wife of PW1. According to him, PW1 entered into the office of the accused at 4.10 p.m. and came out at about 4.15 p.m. PW10 deposed that, when the Dy.S.P. asked to PW1 as to whether the money was accepted by the accused, PW1 stated that, the accused did not accept the same by using his hands, but as instructed by the accused, the money was put inside the drawer of his table. 19. In this matter, PW3 examined by the prosecution was the Senior Clerk, Block Development Office, Devikulam, who was also in-charge of the Head Clerk during the year, 2013. PW3 deposed that, he was in-charge of the sections of Indira Awas Yojana (IAY) and Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA) and he was on duty on 11.09.2013. He also deposed that, on 11.09.2013, PWs 1 and 4 came to the room of the Block Development Officer and on many occasions prior to that also they came to the office for obtaining cheque in connection with their loan. According to him, on that day, PWs 1 and 4 came to the office to receive last installment of their loan and he saw PW1 going inside the room of the accused and coming out after sometime and at that time, PW4 was standing at the door of the room. PW3 also deposed about the singing of Ext.P6 arrest notice and Ext.P7 file pertaining to the loan of PW4, by identifying that Ext.P7 as the application for the loan by PWs 1 and 4. According to him, as on 03.08.2013, Rs.50,000/- was granted to PW4 and it was signed by the accused. PW4 applied for the balance amount on 19.08.2013, which was sanctioned by the accused on 11.09.2013. He also deposed that, in Ext.P7(c), the amount was written as Rs.30,000/- and thereafter it was corrected as Rs.35,000/-. He further deposed that, Ext.P8 is the register containing the details of the persons to whom housing grant for residential building was sanctioned in IAY scheme during the year 2011-2012 and 2012-2013. 20. The evidence given by PW4, who is the wife of PW1, in fact, supported the evidence of PW1, regarding her presence in the Block Development Office. He further deposed that, Ext.P8 is the register containing the details of the persons to whom housing grant for residential building was sanctioned in IAY scheme during the year 2011-2012 and 2012-2013. 20. The evidence given by PW4, who is the wife of PW1, in fact, supported the evidence of PW1, regarding her presence in the Block Development Office. According to PW4, on entering the Block Development Office along with PW1, the accused asked PW1 about the money he demanded and when PW1 placed the notes inside the drawer of the table used by the accused, he entered something in the file. 21. Regarding the arrival of PW1 and the Vigilance party on the date of trap, PW5 was examined. According to PW5, Rs.10,000/- was received by the accused from her as bribe. She deposed that a cheque for Rs.60,000/- was given to her by the accused in connection with her loan and she was instructed to handover Rs.10,000/- out of the same to a person, who was sent by the accused. 22. PW7, who had been working as the Branch Manager, Santhanpara Service Co-operative Bank, supported the prosecution case, stating that Ext.P2 is the passbook in respect of SB account No.1132 maintained by PW4 and cheques issued to PW4 as per the IAY scheme were encashed through the said account. PW7 also identified the initials of PW4 in Ext.P2. 23. PW11 is the Trap Laying Officer, who has been working as the Dy.S.P., VACB, Idukki and he recorded Ext.P1 FIS given by PW1. He also supported the investigation. 24. Now, it is necessary to address the ingredients required to attract the offences under Section 7 and Section 13(1)(d) r/w Section 13(2) of the PC Act, 1988. The same are extracted as under: Section 7:- Public servant taking gratification other than legal remuneration in respect of an official act. He also supported the investigation. 24. Now, it is necessary to address the ingredients required to attract the offences under Section 7 and Section 13(1)(d) r/w Section 13(2) of the PC Act, 1988. The same are extracted as under: Section 7:- Public servant taking gratification other than legal remuneration in respect of an official act. – Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (C) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine. Section 13:- Criminal misconduct by a public servant. – (1) A public servant is said to commit the offence of criminal misconduct,- a) xxxxx (b) xxxxx (c) xxxxxx (d) If he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. Xxxxx (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine. 25. In this connection, it is relevant to refer a 5 Bench decision of the Apex Court in [ AIR 2023 SC 330 ], Neeraj Dutta Vs State (Govt. 25. In this connection, it is relevant to refer a 5 Bench decision of the Apex Court in [ AIR 2023 SC 330 ], Neeraj Dutta Vs State (Govt. of N.C.T. of Delhi) , where the Apex Court considered when the demand and acceptance under Section 7 of the P.C Act to be said to be proved along with ingredients for the offences under Sections 7 and 13(1) (d) r/w 13(2) of the PC Act and in paragraph 68 it has been held as under : "68. What emerges from the aforesaid discussion is summarised 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. 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. 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. 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) 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. Thus the legal position as regards to the essentials under Sections 7 and 13(1)(d)(i) and (ii) of the P.C Act is extracted above. Regarding the mode of proof of demand of bribe, 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. 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. The mode of proof of demand and acceptance is 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. The mode of proof of demand and acceptance is 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. Insofar 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. 27. In this connection, it is relevant to refer the latest decision of this Court in Sunil Kumar K. V. State of Kerala , reported in [2025 KHC 983] . In paragraph No.12 of the judgment, this Court observed the ingredients as under: “12. Indubitably in Neeraj Dutta’s case (supra) the Apex Court held in paragraph No.69 that there is no conflict in the three judge Bench decisions of this Court in B.Jayaraj and P.Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion there is no conflict between the judgments in the aforesaid three cases. Further in Paragraph No.70 the Apex Court held that in the absence of evidence of the complainant (direct/primary,oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and 13(1)(d) r/w Section 13(2) of the Act based on other evidence adduced by the prosecution. In paragraph No.68 the Apex Court summarized the discussion. In paragraph No.68 the Apex Court summarized the discussion. That apart, in State by Lokayuktha Police’s case (supra) placed by the learned counsel for the accused also the Apex Court considered the ingredients for the offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the PC Act,1988 and held that demand and acceptance of bribe are necessary to constitute the said offences. Similarly as pointed out by the learned counsel for the petitioner in Aman Bhatia’s case (supra) the Apex court reiterated the same principles. Thus the legal position as regards to the essentials to be established to fasten criminal culpability on an accused are demand and acceptance of illegal gratification by the accused. To put it otherwise, proof of demand is sine qua non for the offences to be established under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988 and dehors the proof of demand the offences under the two Sections could not be established. Therefore mere acceptance of any amount allegedly by way of bribe or as undue pecuniary advantage or illegal gratification or the recovery of the same would not be sufficient to prove the offences under the two Sections in the absence of evidence to prove the demand.” 28. In this case, while addressing the point argued by the learned senior counsel for the accused that, on conducting phenolphthalein test on both hands of the accused, there was no color change in the sodium carbonate solution, in fact, this aspect has no relevance in this case, since the prosecution has no case that the accused directly received the bribe. The prosecution case, as deposed by PWs 1 and 4 is emphatically clear on the point that, when PW1 reached to meet the accused at 4.10 p.m. on the date of trap, he was asked as to whether the money demanded by the accused was brought and when PW1 replied in the affirmative, the accused directed to put the money inside the drawer of the table. Accordingly, the same was put in the drawer of the table used by the accused. Supporting this evidence, the bribe money was recovered form the drawer of the table by the Dy.S.P. by using key, which according to the accused was not known to him, though he was the responsible officer in the Block Development Office. 29. Accordingly, the same was put in the drawer of the table used by the accused. Supporting this evidence, the bribe money was recovered form the drawer of the table by the Dy.S.P. by using key, which according to the accused was not known to him, though he was the responsible officer in the Block Development Office. 29. It is true that, as pointed out by the learned senior counsel for the accused, as per Section 114(g) of the Evidence Act, if a party in possession of best evidence which will throw light in the controversy withholds it, the court can draw an adverse inference against him notwithstanding that the onus of proving does not lie on him. At the same time, the presumption under Section 114(g) of the Evidence Act is only a permissible inference and not a necessary inference. Unlike presumption under Section 139 of Negotiable Instruments Act, where the court has no option but to draw statutory presumption, under Section 114 of the Evidence Act, the Court has the option; the court may or may not raise presumption on the proof of certain facts. Drawing of presumption under Section 114(g) of Evidence Act depends upon the nature of fact required to be proved and its importance in the controversy, the usual mode of proving it; the nature, quality and cogency of the evidence which has not been produced and its accessibility to the party concerned, all of which have to be taken into account. It is only when all these matters are duly considered that an adverse inference can be drawn against the party. 30. In the instant case, as regards to installation of a camera in the pocket of shirt of PW1 is concerned, this point could be gathered from the evidence of PW1. During cross-examination of PW1, he categorically stated that he did not know whether there was any video recorded therein. Apart from his evidence, nothing forthcoming to see that the Investigating team, in fact, opted the procedure of recording the trap proceedings, in any way. During cross-examination of the Investigating Officer also, nothing brought out to substantiate video recording of the trap proceedings in camera. Apart from his evidence, nothing forthcoming to see that the Investigating team, in fact, opted the procedure of recording the trap proceedings, in any way. During cross-examination of the Investigating Officer also, nothing brought out to substantiate video recording of the trap proceedings in camera. Therefore, mere statement of PW1 that a camera was installed on his pocket, that by itself is insufficient to prove that the prosecution has suppressed the best evidence, without further proof that there was video recording, atleast by cross-examining the Investigating Officer regrading this aspect, in a case where, cogent and convincing evidence otherwise established to prove the prosecution case. Thus, the contention raised by the learned counsel for the accused on this count also must fail. 31. It is true that, in the 313 statement given by the accused, it was stated that, he was engaged in Onam celebrations in the office on 11.09.2013 and according to him, this case has been foisted against him by the political influence of PW8. He also put up a case that, he had kept Rs.1,000/- for the purpose of giving tea for the Block committee scheduled to be held on that day and he failed to take back the same. The accused had denied the demand and acceptance of bribe from PW4, as stated by PWs 1 and 4 and as alleged by the prosecution. 32. On perusing the evidence of PW1, supported by the evidence of PW4, the prosecution case that, the accused demanded Rs.5,000/- as illegal gratification from PW4 for releasing the balance amount of the housing grant sanctioned to her and in continuation of the said demand, the accused demanded and accepted the bribe money at 4.30 p.m. on 11.09.2013, is well established, since the evidence of PWs 1 and 4 is not shaken during their cross- examination. The contentions raised by the accused to unsustain the verdict impugned are all addressed by this Court and negatived for the reasons, stated herein above. 33. Thus, on reappreciation of evidence, it could be gathered that, the prosecution evidence categorically established commission of offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act, by the accused, beyond reasonable doubt. Therefore, the conviction imposed against the accused by the Special Court does not require any interference. 34. 33. Thus, on reappreciation of evidence, it could be gathered that, the prosecution evidence categorically established commission of offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act, by the accused, beyond reasonable doubt. Therefore, the conviction imposed against the accused by the Special Court does not require any interference. 34. Coming to the sentence, the Special Court sentenced the accused to undergo rigorous imprisonment for one year and to pay fine of Rs.20,000/- and in default to pay fine, to undergo simple imprisonment for one month under Section 13(1)(d) read with 13(2) of the P.C. Act. No separate sentence was awarded for the offence punishable under Section 7 of the P.C. Act. Since, the prosecution did not raise any challenge against the non-sentencing of the accused for the offence under Section 7 of the P.C. Act separately, I am inclined to confirm the sentence imposed by the Special Court, as such. Therefore, the verdict impugned does not require any interference and in such view of the matter, the appeal must fail. 35. In the result, this criminal appeal stands dismissed. All interlocutory applications pending in this appeal stand dismissed. Registry is directed to forward a copy of this judgment to the Special Court, forthwith, for information and further steps.