JUDGMENT : (V. SRISHANANDA, J.) Heard Sri Baburao Mangane, learned counsel for the appellant and Sri Subhash Mallapur, learned counsel for the respondent – Lokayukta. 2. Accused, who has been convicted for the offences punishable under Sections 7 , 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for short ‘P.C.Act’) in Special Case No.13/2015 (Lokayukta) is the appellant. 3. Facts in nutshell for disposal of the appeal are as under: PW.1 – Sri Mallinath approached the Lokayukta Police, Kalaburagi contending that his wife, who was working as an Assistant Teacher in Government High Primary School at Kodalhangarga, accused was the Manager of Block Education Office. When the matter stood thus, from 30.10.2013 to 28.04.2014, wife of the complainant went on maternity leave. On 28.04.2014, complainant and his wife took permission from the BEO and resumed to her work on 29.04.2014. The salary of 180 days was withheld by the BEO and despite repeated request, not only the salary for 180 days was withheld but also subsequent salary was withheld. As such, complainant said to have approached the Secretary of Teachers’ Association by name Narasappa and all the three went to the BEO Office and requested the accused to release the salary. 4. It is further alleged by the complainant that on accused demanded a sum of Rs.10,000/- and on a subsequent visit, he demanded a sum of Rs.5,000/- as bribe amount. On 19.08.2014, again he met the accused and accused told that he has instructed Hanumanthrao and total amount payable to the wife of the complainant is to the tune of Rs.90,000/- for which Rs.1,500/- is to be paid to Hanumanthrao. Complainant said to have told the accused that he is interested in paying only Rs.200/-. At that juncture, accused said to have threatened the complainant and sent him out. 5. Based on such complaint, the Lokayukta Police, Kalaburagi registered a case in Crime No.8/2014 for the aforesaid offences. After registering the case, the Inspector of Lokayukta, Kalaburagi formed a raid team comprising of himself, two independent Government servants as panchas. He summoned them to his office and explained the contents of complaint marked at ExP1. Later on, the head of the raid party collected Rs.1,500/- (intended bribe money), comprising of three currency notes of Rs.500/- denomination and directed the co- pancha to note down the serial numbers of the notes. He summoned them to his office and explained the contents of complaint marked at ExP1. Later on, the head of the raid party collected Rs.1,500/- (intended bribe money), comprising of three currency notes of Rs.500/- denomination and directed the co- pancha to note down the serial numbers of the notes. Thereafter, he smeared phenolphthalein powder on those currency notes and demonstrated the chemical reaction of sodium carbonate solution with the phenolphthalein powder and collected the sample sodium carbonate solution and pink coloured solution separately and drafted experimental mahazar. 6. Thereafter, entire raid team went to the office of the accused on 20.08.2014 at about 3.20 p.m. Complainant was instructed to pay the tainted currency on demand by the accused and shadow witness was directed to accompany the complainant and watch the proceedings that would take place at the time of handing over the tainted currency to the accused. 7. Thereafter, complainant said to have contacted the accused and accused said to have demanded the bribe money and enquired as to how much amount is there. Complainant said to have told that that Rs.1,500/- is there and the same has been counted by the accused and kept in his shirt pocket. Thereafter, complainant said to have given pre-designated signal and head of the raid party along with co-panchas and sub-staff came to be chamber of accused and enquired him about the bribe money. Hands of accused was washed in the sodium carbonate solution, which turned into pink colour. Same collected in different bottles and so also tainted currency were seized and trap panchanama was recorded. Explanation of the accused was also taken and thereafter accused was arrested and sent to judicial custody. 8. On conclusion of the investigation, charge sheet came to be filed against the accused for the aforesaid offences. Learned Trial Judge secured the presence of the accused and framed the charges for the aforesaid offences. Accused pleaded not guilty and therefore, trial was held. 9. In order to bring home the guilt of the accused, prosecution in all examined 7 witnesses as PW.1 to PW.7 and placed on record 38 documentary evidence, which were exhibited and marked as Exs.P1 to P38, comprising of complaint, 16 photos, entrustment panchanama, trap mahazar, amount seizure panchanama, defence statement of accused, conversation details, spot sketch map, sanction order etc. In order to bring home the guilt of the accused, prosecution in all examined 7 witnesses as PW.1 to PW.7 and placed on record 38 documentary evidence, which were exhibited and marked as Exs.P1 to P38, comprising of complaint, 16 photos, entrustment panchanama, trap mahazar, amount seizure panchanama, defence statement of accused, conversation details, spot sketch map, sanction order etc. Prosecution also relied on 15 material objects, which were marked as MOs.1 to 15. 10. Complainant is examined as PW.1, who deposed in line with the complaint averments in his examination-in-chief as referred to supra. However, in his cross-examination, he has specifically answered that he has hot seen the note put up by the accused with regard to the pending bill of the wife of the complainant. It is also brought to his notice that the nomination details were not forthcoming in the bill and therefore, bill was not processed but complainant has denied the same. 11. He admits that the Office Superintendent and accused shares the same table for discharging their work. He admits that the Inspector of Schools chamber is situated adjacent to the chamber of the accused and there is a stool in front of chamber of the Inspector of School and when the alleged incident took place, nobody was sitting on the stool. 12. PW.1 further admits that when he met the accused in his chamber, accused came out from his seat and wanted to visit the chamber of Inspector of Schools and at that juncture, when the complainant tried to tender the tainted currency, accused refused the same and pushed the hands of the complainant and at that juncture, the tainted currency notes fell under the stool. 13. He also admits that since he failed to hand over the tainted currency, he did not give any pre-designated signal to the raid team but the head of the raid party and co-panch and other staff came to be spot on their own. It is further admission of P.W.1 that, number of persons had assembled at that juncture and he was pushed backside and he did not noticed as to what the Lokayukta Police did insofar as the tainted currency and accused is concerned. 14. It is further admission of P.W.1 that, number of persons had assembled at that juncture and he was pushed backside and he did not noticed as to what the Lokayukta Police did insofar as the tainted currency and accused is concerned. 14. P.W.1 specifically admits that, at the time of drafting draft mahazar, he was made to stand outside and he did not give any instructions for drafting the panchanama and he does not know what is the explanation offered by the accused, soon after the incident. He also admits that, he was not aware of who was in possession of the file pertaining to the payment of the bill of the matrimonial leave of his wife. He admits that, no proceedings took place in his presence on the day of trap. He admits that, his signature was obtained on trap mahazar on the next day in the Lokayukta Office. 15. P.W.1 specifically admits that, for processing the pending bill with regard to the salary of his wife, accused never demanded any bribe amount. He also admits that, if a complaint is lodged with Lokayukta Police, the pending bill would be processed early and with that intention he lodged Ex.P.1 to the Lokayukta Police. 16. P.W.2 is a shadow witness who has supported the case of the prosecution in line with the P.W.1 in his examination-in-chief. 17. In his cross-examination, he admits that, the conversation was typed in Lokayukta Office, but he was not asked to identify the voice found in the voice recorder. He admits that, in the conversation it was made to listen by him in the Lokayukta Office, different persons have spoken about provision 371(J). He admits that, there is a Gurubhavana in premises of the B.E.O. Office. 18. He further admits that, in the spot sketch, the place where he was standing is shown as 12 meters away from the place where the alleged trap has taken place. He admits that, he was unable to hear the conversation that would take place from the place where he was standing and the alleged place of trap. 18. He further admits that, in the spot sketch, the place where he was standing is shown as 12 meters away from the place where the alleged trap has taken place. He admits that, he was unable to hear the conversation that would take place from the place where he was standing and the alleged place of trap. He admits that, in Ex.P.28 which is a voluntary statement of the accused it has been written that, (meaning thereby some unknown person tried to thrust the money into his shirt pocket and he refused to receive the same) and at that juncture the currency notes fell near the stool situated in front of the office of the Inspector of Schools. 19. Co-pancha – Girija is examined as P.W.3. She deposed about the entrustment mahazar and thereafter accompanying the raiding team and witnessing the hand wash of the accused and participating in the recording of trap mahazar. 20. In her cross-examination, she admits that, there is a Gurubhavana situated in the B.E.O office premises and there are other buildings. She admits that, if somebody stands near Gurubhavana, the transactions that would take place inside the B.E.O office is not visible. She also admits that, shadow witness did not accompany P.W.1 inside the B.E.O office. She admits that, when she went inside the B.E.O office, she saw the currency notes under the stool. 21. The official of the superior D.D.P.I is examined as P.W.4 who has given the particulars of service of the accused and also identified the voice in the voice recorder. 22. In his cross-examination he admits that, the conversation was not clear and some people taking about the Provision 371(J) in the conversation. 23. FDA of the B.E.O office Hanumantarao is examined as P.W.5. He has deposed about processing of the bill of the wife of P.W.1 and he has identified his signature therein. She admits that, she has sent the process bill to the table of accused. 24. She admits in the cross-examination that the Ex.P.32 itself the accused has made an endorsement that there is no nomination much earlier to the date of trap, the same is marked as Ex.P.32-C. The other witnesses are formal in nature including the oral testimony of the head of the raiding party. 25. The above evidence on record was relied on by the learned trial Judge and convicted the accused. 25. The above evidence on record was relied on by the learned trial Judge and convicted the accused. Being aggrieved by the same, the accused is before this Court in this appeal. 26. Sri. Baburao Mangane, learned counsel for the appellant, reiterating the grounds urged in the appeal memorandum contended that, the learned trial Judge did not bestowed his attention to the cross-examination of prosecution witnesses and did not consider the effect of admission elicited in the evidence of prosecution witnesses and discarded the same in a single stroke by remarking that no useful materials are elicited in the cross-examination of prosecution witnesses and recorded and order of conviction resulting in miscarriage of justice and sought for allowing the appeal. 27. Per contra, Sri. Subhash Mallapur, learned counsel appearing for the respondent-Lokayukta opposes the appeal grounds and supports the impugned Judgment. 28. He would further contend that, P.W.1 being the complainant has supported the case of the prosecution in toto in examination-in-chief and later on in cross- examination he has given answers favorable to the accused and whereby he has turned hostile to the case of the prosecution. 29. He would further contend that there is no bar to rely upon the testimony of the hostile witness to the extent which serves the case of the prosecution, if other material evidence on record is sufficient enough to record an order of conviction and therefore, the order of conviction recorded by the trial Judge needs to be confirmed by dismissing the appeal. 30. Having heard the arguments of both sides, this Court perused the material on record meticulously. 31. On such perusal of the material on record, the following points would arise for consideration: (i) Whether the material evidence placed on record by the prosecution is sufficient enough to maintain the conviction order of the appellant for the offence under Sections 7 , 13 (1)(d) read with Section 13 (2) of the Prevention of Corruption Act? (ii) Whether the impugned Judgment is suffering from legal infirmity, perversity and thus calls for interference? (iii) If the answer to the point No.1, is in affirmative, whether the sentence is excessive? (iv) What order? Regarding Point Nos.1 & 2: 32. In the case on hand as discussed supra, the prosecution has examined 07 witnesses in the attempt to bring home the guilt of the accused. (iii) If the answer to the point No.1, is in affirmative, whether the sentence is excessive? (iv) What order? Regarding Point Nos.1 & 2: 32. In the case on hand as discussed supra, the prosecution has examined 07 witnesses in the attempt to bring home the guilt of the accused. Admittedly, complainant who supported the case of the prosecution in examination- in-chief, gave contradictory answers as referred to supra in his cross-examination. The contentions urged on behalf of the Lokayukta by Sri. Subhash Mallapur in this regard is that, the P.W.1 was won over after his examination-in-chief and therefore, he is to be considered as a hostile witness to the case of the prosecution. 33. In reply, Sri. Baburao Mangane contended that, if the prosecution is of the opinion that P.W.1 has turned hostile to the case of the prosecution, in view of the fact that he has supported the case of the prosecution in examination- in-chief and gave contradictory answers in the cross- examinations, nothing prevented the prosecution to seek permission of the Special Judge to treat him as hostile and cross-examine him. Having failed to adopt such a procedure, it is too late for the prosecution to canvass before this Court that P.W.1 is to be treated as hostile witness. 34. Further, in order to bring home the guilt of the accused, it is just and necessary for the prosecution to establish that there was a acceptance of bribe money by the accused on his own, where there is no proof of demand which would complete the offence under Section 7 of the P.C.Act; alternatively, the prosecution has to establish both, demand and acceptance of illegal gratification to record an order of conviction under Section 13(1)(d), read with Section 13(2) of the P.C.Act. 35. In both the situations, one significant fact that is to be noted by the Court is whether any work of the complainant was pending as on the date of demand and acceptance of the illegal gratification and the accused has demanded the illegal gratification with an intention to misuse his official position, so as to help the complainant or to show official favour in processing the pending work of the complainant. 36. 36. In the light of the said legal requirements, when the material evidence available on record is appreciated, P.W.1 in his cross-examination and P.W.3 in her cross- examination, categorically admitted that the currency notes were found lying under the stool which was kept in front of the chamber of Inspector of Schools, which is adjacent to the chamber of the accused. Accused immediately after the incident has given an explanation which is marked at Ex.P.28, wherein, he has stated that as soon as the complainant came to his chamber, he went out from his chamber to meet the Inspector of Schools, which is the adjacent chamber, it is P.W.1 who tried to trust the money in to his shirt pocket and at that juncture, the accused prevented him from doing so and in the process, the currency notes fell under the stool which was kept in front of the chamber of the Inspector of Schools. 37. In other words, whatever that has been stated in the examination-in-chief by P.W.1 is incorrect as is found in the trap mahazar which is signed next day in the office of the Lokayukta. But in the cross-examination he has narrated the true things. The version of P.W.1 is sufficiently corroborated by the answer elicited by the accused in the cross- examination of P.W.3, inasmuch as she also categorically admits that the currency notes were found lying under the stool. 38. If the accused has refused to receive the tainted currency, question of colour test and shirt pocket of the accused turning positive to the sodium carbonate test cannot be countenanced in law. 39. In this regard, it is also pertinent to note the answers elicited in the cross-examination of P.W.1, wherein, he categorically admits that, soon after the incident, number of persons arrived on the alleged scene of offence and in the process, complainant was pushed backside and he did not witness what transpired thereof and the trap mahazar was not drafted in his presence and he signed the trap mahazar next day in the office of the Lokayukta. 40. 40. Further, P.W.2 who is a shadow witness also admits in his cross-examination that the conversation found in the voice recorder did not have any demand and he could only hear some people speaking about provision 371-J. It is further found from the cross-examination of P.W.2 that, he did not accompany the complainant as he is directed by the Head of the raiding party at the time of alleged trap. 41. On the contrary, there is a categorical admission elicited in the cross-examination of P.W.2 that he was standing 12 meters away from the alleged scene of trap, which is about 36 feet and he admits that, he could not hear the conversation that said to have taken place between the accused and the complainant. Whereas, in the examination- in-chief, P.W.2 has deposed what is written in the trap mahazar. When an independent Government Servant gives two different versions in respect of the very same incident, the learned trial Judge ignoring such version which is favorable to the accused and brushing aside the admission in a single stroke that no useful material is elicited in the cross- examination, in the considered opinion of this Court has resulted in miscarriage of justice. 42. When the complainant and P.W.2 are unable to depose before the Court and withstand the cross- examination on behalf of the accused with regard to the demand as well as the acceptance of the tainted currency, the conviction of the accused either under Section 7 or under Section 13(1)(d) of the P.C.Act, is impermissible. 43. Further, Sri. Subhash Mallapur, made a feeble attempt to place reliance on Constitution Bench Judgment of the Hon’ble Apex Court in the case of Neeraj Dutta vs. State (Government of N.C.T. of Delhi) reported in 2023 LiveLaw (SC) 211, and tried to justify the conviction of the accused. 44. In this regard, it is just and necessary for this Court to cull out the relevant portion of the said Judgment which is in paragraph No.88. For ready reference, paragraph No.88 to 88.8 is culled out hereunder for ready reference. 88. What emerges from the aforesaid discussion is summarised as under: 88.1. 44. In this regard, it is just and necessary for this Court to cull out the relevant portion of the said Judgment which is in paragraph No.88. For ready reference, paragraph No.88 to 88.8 is culled out hereunder for ready reference. 88. What emerges from the aforesaid discussion is summarised as under: 88.1. (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. 88.2. (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. 88.3. (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. 88.4. (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 Sections 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. This is an offence under Sections 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 Sections 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 Sections 13(1)(d)(1) and (ii) of the Act. 88.5. (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. 88.6. (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. 88.7. (g) 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. 88.7. (g) 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. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Sections 13(1)(d)(i) and (ii) of the Act. 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature. 45. A careful consideration of the above and applying the legal principles enunciated to the facts of the present case, having regard to the answers elicited in the cross- examination of P.W.1 to P.W.3, it is crystal clear that, the prosecution is unable to prove neither the demand nor acceptance with cogent evidence. 46. P.W.1 and P.W.3 categorically admits that, the currency notes were lying under the stool which was kept in front of the chamber of the Inspector of Schools, whereas the trap mahazar shows that it was recovered from the shirt pocked of the accused. 47. P.W.2 for the reasons best known to him did not accompany the complaint and did not hear the conversation of demand said to have been made by the accused at the time of trap. The pre-trap conversation also not clear in establishing the demand as much as there is a categorical admission by the prosecution witnesses themselves that the voice recording was not capable of hearing properly and what has been culled out from the said conversation is that, some people were speaking about the provision 371-J. 48. Moreover, P.W.1 categorically admits that, he lodged the complaint with Lokayukta only with an intention that the pending bill of his wife is processed early by the accused. Moreover, P.W.1 categorically admits that, he lodged the complaint with Lokayukta only with an intention that the pending bill of his wife is processed early by the accused. Further, Ex.P.32-c also assumes sufficient importance inasmuch as when Hanumantarao who is the First Division Assistant has processed the bill and sent it to the accused even before the trap took place, the accused had made necessary endorsement on the pending bill of the wife of the complainant by stating that the bill cannot be processed for want of necessary nomination instructions. 49. Under such circumstances, when the prosecution evidence is not satisfactory in establishing the demand and acceptance of the bribe money, conviction of the accused for the offence punishable under Section 7 or under Section 13(1)(d) of the P.C.Act by following the dictum of Neeraj Dutta case (supra) would not arise at all. 50. In view of the foregoing discussions invariably this Court has to hold that, the impugned Judgment is not only suffers from legal infirmity, but also the reasons are perverse in nature. 51. In view of the foregoing discussion, the point No.1 is answered in negative and point No.2 in the affirmative. Regarding Point No.3: 52. Since this Court is of the opinion that the prosecution has failed to establish necessary ingredients to attract offence punishable under Sections 7 and 13(1)(d) of the P.C.Act, the accused has to be acquitted and therefore, this point would not arise for consideration. 53. In view of recording of finding of this Court on point Nos.1 to 3, following order is passed. ORDER (i) The appeal is allowed; (ii) The impugned Judgment of conviction dated 01.09.2020 passed in Special Case No.13/2015 (Lokayukta), is hereby set aside. (iii) The accused is acquitted for the alleged offences; (iii) The bail bond if any stands cancelled.