JUDGMENT : M. G. UMA, J. The appellant being accused No.1 has preferred Crl.A.No.1313/2012 against the judgment of conviction and order of sentence dated 28.11.2012 passed in Special Case No.288/2010 on the file of the learned Special Judge, Bengaluru Urban District, Bengaluru, for the offence punishable under Sections 7 , 13(1)(d) read with 13(2) of Prevention of Corruption Act (for short, "the P.C. Act") and sentencing him to undergo rigorous imprisonment for a period of two years and to pay fine of Rs.40,000/- for the offence punishable under Section 7 of P.C. Act, and also sentenced him to undergo rigorous imprisonment for a period of four years with fine of Rs.50,000/- for the offence punishable under Section 13 (1)(d) read with 13(2) of P.C. Act, with default sentences, whereas the appellant-State has preferred Crl.A.No.981/2013, seeking enhancement of sentence. 2. Brief facts of the case as made out by the prosecution is that, the complainant had constructed a building within the limits of BBMP Bengaluru. Accused No.1 being the Corporator of BBMP - a public servant, demanded illegal gratification of Rs.2,00,000/- to permit the complainant to continue the building construction work. He threatened the complainant through accused No.2 that if the complainant fails to pay the amount as demanded, the construction work would be stopped. Pursuant to the demand, the complainant filed the First Information as per Exhibit P1 with Lokayukta Police. An Entrustment Panchanama was drawn on 16.07.2010, entrusting 400 currency notes of ? 500/- each. The complainant went to the house of accused No.1 and tendered the same. The accused No.1 readily accepted the amount as illegal gratification and kept it in the almirah. Thereby, it is stated that accused No.1 has committed the offences punishable under Sections 7 , 13(1(d) read with 13(2) of the P.C. Act. The Lokayukta police trapped the accused, recovered the tainted amount under the Trap Mahazar, sanction was obtained to prosecute the accused, and the Final Report came to be filed. 3. The Trial Court took cognizance of the offences and summoned the accused. The accused has appeared before the Trial Court, pleaded not guilty for the offences alleged and claimed to be tried. The prosecution examined PWs.1 to 8, got marked Exhibits P1 to P29 and identified MOs.1 to 25 in support of its contention. 3. The Trial Court took cognizance of the offences and summoned the accused. The accused has appeared before the Trial Court, pleaded not guilty for the offences alleged and claimed to be tried. The prosecution examined PWs.1 to 8, got marked Exhibits P1 to P29 and identified MOs.1 to 25 in support of its contention. The accused denied all the incriminating materials available on record in his statement under Section 313 of Cr.PC., examined himself as DW1, got examined DW2 and got marked Exhibits D1 to D6 in support of his defence. 4. The Trial Court, after taking into consideration all these materials on record, came to the conclusion that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt, and accordingly proceeded to pass the impugned judgment of conviction and order of sentence as stated above. Being aggrieved by the same, accused No.1 has preferred Crl.A.No.1313/2012 seeking acquittal. Whereas the Lokayukta Police have approached this Court by preferring Crl.A.No.981/2013 seeking enhancement of sentence on accused No.1. 5. Heard Sri. C.V. Nagesh, learned Senior Advocate for Sri. Raghavendra K., learned counsel for the appellant-accused No.1 and Sri. B.S. Prasad, learned Additional S.P.P for the respondent-State. Perused the materials on record including the Trial Court records. 6. In view of the rival contentions urged by learned counsel for both the parties, the points that would arise for my consideration in both the cases are as under: "(i) Whether the appellant-State in Crl.A.No.981/2013 has made out any grounds to enhance the sentence imposed on accused No.1? (ii) Whether the appellant-accused No.1 in Crl.A.No.1313/2012 has made out any grounds to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court?" My answer to the point No.1 in the 'Negative' and point No.2 in the 'affirmative' for the following: REASONS 7. It is the specific contention taken by the prosecution that accused No.1 was an elected representative and a Corporator in BBMP at the relevant point of time. He demanded illegal gratification from the complainant who was constructing the building, threatening that the complainant will not be permitted to proceed with the construction work unless his demand for illegal gratification is met. Under such circumstances, the complaint as per Exhibit P1 came to be registered on 16.05.2010. He demanded illegal gratification from the complainant who was constructing the building, threatening that the complainant will not be permitted to proceed with the construction work unless his demand for illegal gratification is met. Under such circumstances, the complaint as per Exhibit P1 came to be registered on 16.05.2010. On the same day, the pre-trap panchanama as per Ex.P16 was drawn in the presence of pre- trap mahazar witnesses who were examined as PWs.2 and 3. But, however the trap could not be conducted on 16.07.2010 and therefore, there was an additional pre-trap panchanama as per Exhibit P4. Again, tainted amount was entrusted to the complainant with a direction to go and meet the accused, and if he demands the illegal gratification to pay the entrusted amount to him. It is the further contention of the prosecution that the complainant alone went and met the accused in his house, tendered the tainted amount, the accused accepted the same and kept it in the almirah. To prove this contention, the prosecution has examined the complainant as PW.1. 8. PW.1 has categorically stated that he was not accompanied by the shadow witness while he was going to the house of the accused. Moreover, even as per the trap panchanama Exhibit P7, PW.2 was not asked to accompany PW.1 while meeting the accused. Therefore, PW.2 cannot be termed as a shadow witness as he never followed the complainant-PW.1 to witness the demand and acceptance of illegal gratification. 9. PW1 further states that even though trap was in the house of the accused, no writings were done in the house of the accused at the scene of the occurrence. But the trap mahazar was drawn in Lokayukta Police office. Interestingly, the witness categorically states that, after the trap of the accused in his house, the complainant and the witnesses have gone to BBMP office and returned only at 12.45 p.m., drawing of trap panchanama, went up to 4.00 p.m. Exhibit P7 is the trap panchanama, according to which, it was drawn in the Lokayukta office from 10.30 a.m. But according to PW1, he was not present in the Lokayukta office till 12.30 noon. 10. It is the specific contention of the learned Senior Advocate that, trap panchanama was never tendered to PW.1 and he never identified his signature found therein. 10. It is the specific contention of the learned Senior Advocate that, trap panchanama was never tendered to PW.1 and he never identified his signature found therein. I find considerable force in the contention taken by the accused that, so called signature of the complainant found on Exhibit P7 was never identified by the complainant. There is no explanation as to how the trap mahazar could be drawn from 10.30 a.m. when the complainant was admittedly not present in the Lokayukta office. 11. Interestingly, the demand and acceptance of illegal gratification by accused No.1 from the complainant was in his house. Trap of the accused was held therein and the entrusted amount was recovered from the almirah in the house of the accused. But no proceedings were drawn in the house of the accused. PW2-the witness states in his evidence that even serial number of the currency notes which are 400 in number were never noted in the house of the accused. But it was kept in a packet and sealed at the spot. Serious doubt arises in the mind of the Court about the manner in which the trap was held and the trap mahazar was drawn by the Lokayukta officials. 12. PW.2 is projected as a shadow witness. But as per trap panchanama, he was never asked to accompany the complainant as the complainant apprehended that accused may doubt the complainant and he may not receive the bribe amount. Such apprehension was baseless as there was no pre history of either demand or acceptance of illegal gratification by the accused. The apprehension of complainant was not well founded. However, PW2 cannot be referred to as a shadow witness as he was never a shadow witness to follow the complainant. 13. The witness has deposed before the Trial Court that, the place where the trap was held i.e., the residential house of accused No.1 was not conducive to continue the proceedings, as several persons were visiting. This contention of the prosecution also cannot be accepted as the place of trap is the residential house of accused No.1, and it was definitely not a public place where numerous persons are visiting. The explanation offered by the prosecution that the atmosphere in the house was not conducive cannot be accepted even for a moment. This contention of the prosecution also cannot be accepted as the place of trap is the residential house of accused No.1, and it was definitely not a public place where numerous persons are visiting. The explanation offered by the prosecution that the atmosphere in the house was not conducive cannot be accepted even for a moment. PW2 further states in his evidence that there was no writing or typing done in the house of the accused. Even the serial numbers of the currency notes recovered in the house of the accused were not noted by the Lokayukta office. But those currency notes were packed and sealed at the spot. However, they started to write the mahazar in the Lokayukta office only at 12.45 p.m. or 01.00 a.m., which is quite contrary to Exhibit P7. According to Exhibit P7, the trap panchanama was drawn at 10.30 a.m. Thus, without going into other details of the case of the prosecution, I found that the case made out by the prosecution is very shabby and cannot be accepted even for a moment. 14. The contention of the learned counsel for the respondent-Lokayukta police, that the demand and acceptance as deposed by the complainant is proved. Further the accused has not denied the acceptance of the amount tendered by the complainant and therefore, the presumption under Section 20 of P.C. Act could be attracted cannot be accepted even for a moment. To draw the presumption under Section 20 of P.C. Act, the primary burden is on the prosecution to prove demand and acceptance of the undue advantages. 15. It is pertinent to note that the accused had given his written explanation as per Exhibit P6 at the earliest point of time. As per the explanation, the accused has stated that he had asked for a loan from the complainant and towards such loan, the complainant had given him the money and he received it as such. Simply because the accused admitted receipt of the amount from the complainant, it will not automatically lead to proof of demand and acceptance of illegal gratification. The burden of proof heavily lies on the prosecution. From the glaring discrepancies referred to above, I am of the opinion that the sole witness to speak about the incident is the complainant and his version is not trustworthy as he has not chosen to accompany with PW.2. The burden of proof heavily lies on the prosecution. From the glaring discrepancies referred to above, I am of the opinion that the sole witness to speak about the incident is the complainant and his version is not trustworthy as he has not chosen to accompany with PW.2. The drawing of trap mahazar was not acceptable in light of the observations made above. When the prosecution has failed to prove basic requirements of Sections 7 , 13(1)(d) read with 13(2) of P.C. Act, I am of the opinion that the accused is entitled for acquittal. 16. Even though the learned Senior Advocate has addressed his arguments referring to validity of the order of sanction, when the prosecution is not successful in proving the demand and acceptance of the illegal gratification and commission of offence under Section 7 , 13(1)(d) read with 13(2) of P.C. Act, I am of the opinion that it is a futile attempt to discuss about the inconsistency in the evidence of PW.4 and in the order of sanction-Exhibit P14. 17. It is pertinent to note that even the Lokayukta police have preferred Crl.A.No.981/2013, seeking enhancement of sentence. When the prosecution is not successful in proving the guilt of the accused beyond reasonable doubt, and when the accused is entitled for acquittal, question of enhancing the sentence does not arise. 18. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. The reasons assigned by the Trial Court are not convincing and there is absolutely no discussion about glaring inconsistencies in the evidence of the prosecution. In-spite of that, the Trial Court has proceeded to convict the accused, it is without any basis. In view of the discussions held above, the impugned judgment of conviction and order of sentence are liable to be set aside. Accordingly, I answer point No.1 in the negative and point No.2 in the affirmative and I proceed to pass the following: ORDER i) Crl.A.No.981/2013 preferred by the appellant- State is dismissed. ii) Crl.A.No.1313/2012 preferred by accused No.1 is allowed. iii) The impugned judgment of conviction and order of sentence dated 28.11.2012 passed in Special Case No.288/2010 by the learned Special Judge, Bengaluru Urban District, Bengaluru, is hereby set aside. iv) Consequently, the accused is acquitted for the offences punishable under Sections 7 , 13(1)(d) read with 13(2) of P.C. Act. ii) Crl.A.No.1313/2012 preferred by accused No.1 is allowed. iii) The impugned judgment of conviction and order of sentence dated 28.11.2012 passed in Special Case No.288/2010 by the learned Special Judge, Bengaluru Urban District, Bengaluru, is hereby set aside. iv) Consequently, the accused is acquitted for the offences punishable under Sections 7 , 13(1)(d) read with 13(2) of P.C. Act. v) His bail bond and that of his sureties shall stands cancelled. vi) Fine amount deposited, if any, is ordered to be refunded to the accused, on due identification. Registry to send back the original records along with copy of this judgment to the Trial Court, for information.