JUDGMENT : V Srishananda, J. Heard Sri Subhash Mallapur, learned counsel for the appellant – Lokayukta and Sri Shankar P. Hegade, learned counsel for the respondent - accused. 2. Lokayukta is in appeal challenging the order of acquittal passed in Special Case (Lok) No.3/2016, on the file of the Principal District and Sessions Judge/Special Judge, Vijayapura by judgment dated 04.05.2021, 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’). 3. Facts in nutshell, which are utmost necessary for disposal of the present appeal are as under: 3.1 The complainant said to have filed an application seeking for mutation of the entries in respect of land in Survey No.129/3, measuring 5 acres of Halerolli village, standing in the name of daughter and four sons including the complainant. 3.2 Elder brother of the complainant died and therefore, there was a decree from the Court for partition in respect of said land and three shares have been made and for change of the mutation entry, an application was filed in Nemmadi Kendra of Kolhar by paying fee of Rs.1,500/- for conducting survey of the land. 3.3 It is further contended by the complainant that Survey Officers of Basavana Bagewadi came to the land and measured the same and they shown strip of one acre to the elder brother of the complainant, three acres to the complainant and one acre to the younger brother of the complainant. 3.4 On 24.02.2015, the complainant gave an application accompanied with the survey application and Court decree to Bhoomi Kendra, Nidagundi for issuing separate RTC extract in the name of complainant and his brothers. 3.5 It is further case of the complainant that he met the accused for issuance of the separate RTC extract, at that juncture, accused demanded bribe amount of Rs.50,000/-, which was negotiated in a sum of Rs.10,000/-. As the complainant was not interested in parting away the bribe money of Rs.10,000/-, he reported the same to the Lokayukta Police, Vijayapura, who after verification of the veracity of the complaint averments, registered the case in Crime No.3/2015. 3.6 Lokayukta Inspector formed a raid party comprising of himself, his sub staff and two independent panch witnesses for the intended raid. 3.6 Lokayukta Inspector formed a raid party comprising of himself, his sub staff and two independent panch witnesses for the intended raid. Intended bribe money of Rs.10,000/- was collected from the complainant, comprising of 18 notes of Rs.500/- denomination and one note of Rs.1,000/- and directed one of the pancha to note down the serial numbers of the note on a separate paper and smeared the phenolphthalein powder on the intended bribe amount and demonstrated the chemical reaction of phenolphthalein powder with sodium carbonate colourless solution, which turned into pink and drafted entrustment mahazar vide Ex.P2. 3.7 Further, complainant and another pancha (shadow witness) were directed to visit the accused and on demand, was directed to pay the intended bribe amount to the hands of the accused. Shadow witness was directed to observe the activities that would take place and also hear the conversation that take place at the time of handing over the bribe money. 3.8 Thereafter, raid party along with the complainant proceeded to the office of the Tahsildar at Nidagundi. Complainant and shadow witness went inside. According to the prosecution case, complainant when contacted the accused, accused demanded the bribe money, but directed the complainant to come out of the office to Pawad Muttyan Temple and gave pre-designated signal. Thereafter, the head of the raid party, co-pancha and other sub staff came there and asked the accused to handover the bribe money, which the accused took out from his pant and handed over to the head of the raid party. 3.9 Colour test was conducted, which turned into positive and therefore, they were collected separately and seized. When explanation of the accused was sought for, accused told that it was thrusted into his hands by the complainant. Accused was arrested, trap mahazar was drafted vide Ex.P3 and afterwards, he was produced before the Special Judge. After thorough investigation, charge sheet came to be filed and charges were framed. Accused pleaded not guilty. 4. In order to prove the guilt of the accused, ten witnesses were examined on behalf of the prosecution as P.Ws. 1 to 10 comprising of complainant, mahazar witness, Special Tahsildar, Village Accountant, Asst. Engineer-PWD who prepared the sketch, brother of the complainant, Deputy Commissioner and officials of Investigation Agency. 5. Accused pleaded not guilty. 4. In order to prove the guilt of the accused, ten witnesses were examined on behalf of the prosecution as P.Ws. 1 to 10 comprising of complainant, mahazar witness, Special Tahsildar, Village Accountant, Asst. Engineer-PWD who prepared the sketch, brother of the complainant, Deputy Commissioner and officials of Investigation Agency. 5. The prosecution, in all, relied on 27 documents which were exhibited and marked as Exs.P.1 to 27 comprising of complaint, photographs, entrustment mahazar, documents, statement of the accused, trap panchanama, map, service particulars of the accused, prosecution sanction order, FIR, sheet containing serial numbers of currency notes, rough sketch, statement of the accused, permission letter, call details, FSL report and certificate under Section 65(B) of the Indian Evidence Act. 6. Accused got examined himself as D.W.1. The prosecution placed on record eight material objects which are sample hand wash, sample phenolphthalein powder, sample Sodium Carbonate, compact disc, left hand wash of the accused, right hand wash of the accused, pure water bottle and cash of Rs.10,000/-. 7. On conclusion of recording of evidence, accused statement as is contemplated under Section 313 of the Code of Criminal Procedure was recorded, wherein, accused denied the incriminatory material and also gave explanation that he never demanded the money nor he was competent to process the papers and he had completed his portion of the work. 8. Thereafter, learned Trial Judge heard the arguments of the parties and by the impugned judgment, acquitted the accused. 9. Being aggrieved by the same, Lokayuktha has filed the present appeal on the following grounds: “Judgement passed by the Hon'ble Court is contrary to the facts of the case as well as law besides further erroneous hence the impugned order deserves to be set aside. It is submitted that Trial Court has not properly appreciated that evidence of 10 witnesses who have supported the case of prosecution and has not properly appreciated documents marked by the prosecution which has led to the gross miscarriage of justice. It is submitted that Trial Court has not properly appreciated that evidence of 10 witnesses who have supported the case of prosecution and has not properly appreciated documents marked by the prosecution which has led to the gross miscarriage of justice. That the Trial Court has failed to appreciated appreciate the fact that all the witnesses examined before the Trial Court have supported the case of the prosecution, P.W.-1 has specifically supported the case of the prosecution and he has specifically deposed that the accused has demanded and accepted the bribe from him which is also corroborated by the shadow witness P.W.-2 and has supported the prosecution by corroborating the trap panchnama P.W.-3, the Special Tahsildar has also supported the case of the prosecution and he has specifically deposed that the accused is the Village Accountant of the Siddhanath village, which comes under his jurisdiction and also has recognized the voice of the accused. P.W.-4 is the Village Accountant of Nidagundi village and he has also supported the case of prosecution. That the Trial Court has committed a grave error in holding that the accused is not empowered to enter the name of the complainant and his brother and to issue a separate RTC which is contrary to the averments of the complaint which has led into gross miscarriage of justice. That the Trial Court has committed a grave error in not assessing the evidence of the prosecution as a whole and has gone into minor discrepancies which has led into gross miscarriage of justice.” 10. Sri Subhash Mallapur, learned counsel for the appellant, reiterating the grounds urged in the appeal memorandum, vehemently contended that in the case on hand, learned Trial Judge has failed to appreciate the material evidence properly and, wrongly acquitted the accused resulting in miscarriage of justice and sought for allowing the appeal. 11. He further contended that the learned Trial Judge misdirected himself in not appreciating the fact that there was a clear demand made by the accused in the office of the Tahsildar, but actual trap has taken place in Pawad Mutyan Temple which is situated just opposite to the office of the Tahsildar as per the directions of the accused. 12. He further contended that the learned Trial Judge misdirected himself in not appreciating the fact that there was a clear demand made by the accused in the office of the Tahsildar, but actual trap has taken place in Pawad Mutyan Temple which is situated just opposite to the office of the Tahsildar as per the directions of the accused. 12. Therefore, discrepancy if any with regard to demand and actual acceptance between two different places is sufficiently explained by the prosecution which has been totally ignored by the learned Trial Judge while passing the impugned judgment resulting in miscarriage of justice and sought for allowing the appeal. 13. He also contended that in the case on hand, prosecution enjoy the presumption under Section 20 of the Prevention of Corruption Act and therefore, when once the plausible and possible evidence is placed on record by the prosecution, it was for the accused to rebut the presumption available to the prosecution and the rebuttal evidence placed on record is nothing but self serving testimony which has not been appreciated by the learned Trial Judge and sought for allowing the appeal. 14. Next contention of Sri Subhash Mallapur with vehemence is that since the demand and acceptance has been proved and the colour test stood positive and work of the complainant was pending with the accused as on the date of trap, prosecution is successful in proving all the ingredients of Sections 7 and 13(1)(d) of the Prevention of Corruption Act punishable under Section 13 (2) of the said Act and sought for allowing the appeal. 15. Per contra, Sri Shankar P. Hegde, learned counsel for the accused/ respondent would support the impugned judgment by contending that in the case on hand, admittedly, no work was pending with the accused as on the date of the trap. 16. He further contended that in the case on hand, demand as per the prosecution case and trap mahazar is in the Tahsildar office, but actual trap has taken place at Pawad Mutyan Temple. In this regard, there is no connecting evidence to say that it is at the instance of the complainant that the shadow witness followed the complainant from Tahsildar office to Pawad Mutyan Temple. In this regard, there is no connecting evidence to say that it is at the instance of the complainant that the shadow witness followed the complainant from Tahsildar office to Pawad Mutyan Temple. Therefore, the contentions urged on behalf of the appellant that prosecution is successful in proving all the ingredients to attract the offence under Sections 7 and 13(1)(d) of the Prevention of Corruption Act punishable under Section 13 (2) of the said Act stands established cannot be countenanced in law. 17. He would further contend that mere colour test turning positive would not be sufficient enough in establishing the offence under Section 13 (1)(d) of the Prevention of Corruption Act and sought for dismissal of the appeal. 18. He also contended that when prosecution itself has failed to properly establish all necessary and primary evidence, question of raising presumption would not arise for the prosecution and therefore, sought for dismissal of the appeal. 19. Having heard the learned counsel for the parties, the following points would arise for consideration. (i) Whether the material evidence placed on record by the prosecution would be sufficient enough to establish the case of the prosecution? (ii) Whether the impugned judgment suffers from legal infirmity and perversity, and thus calling for interference by this Court? (iii) If answer to point Nos.1 and 2 above is in the affirmative, what is the appropriate sentence in the case on hand? (iv) What Order? REGARDING POINT Nos.1 and 2: 20. In the case on hand, complainant is examined as P.W.1 and shadow witness has been examined as P.W.2. P.W.3 is the Tahsildar, P.W.4 is the brother of the complainant who was also entitled for separate RTC, P.W.5 is the PWD Engineer who prepared the spot sketch, P.W.8 is the Deputy Commissioner and sanctioning authority, P.Ws.9 and 10 are the Investigation Officers. 21. In the case on hand, P.Ws.1 and 2 consistently deposed about the entrustment mahazar in line with the contents of the complaint and entrustment mahazar. 22. However, it is the unequivocal say of P.W.1 that the demand was in the office of Tahsildar. However, P.W.2 shadow witness deposed that as per the instructions of P.W.9, he did not accompany the complainant to the Tahsildar office. 23. 22. However, it is the unequivocal say of P.W.1 that the demand was in the office of Tahsildar. However, P.W.2 shadow witness deposed that as per the instructions of P.W.9, he did not accompany the complainant to the Tahsildar office. 23. In otherwords, except the testimony of the complainant there is no material on record to say that the accused actually demanded the money on the day of trap in the office of the Tahsildar. 24. P.W.2 in this regard did not support the case of the prosecution. But the prosecution did not treat him as partly hostile to the extent that he has not supported the case of the prosecution that he had accompanied P.W.1 to the Tahsildar office and he has seen demand made by the accused in the Tahsildar office. 25. However, trap mahazar contains that both P.Ws.1 and 2 went to the office of the accused and demand was made by accused, P.W.1 wanted to part with the tainted currency but accused gave a signal that they should go out and later on, as per the directions of the accused, P.Ws.1 and 2 went to Pawad Mutyan Temple. 26. In this regard, there is no material evidence on record as P.W.2 only followed P.W.1 with accused after they left Tahsildar office towards Pawad Mutyan Temple. Again near the Temple P.W.2 did not see the actual handing over of the tainted currency to the hands of the accused as he was 12 metres away from Pawad Mutyan Temple. 27. The distance between the Tahsildar office and Pawad Mutyan Temple is about 50 metres as could be seen from the sketch and if P.W.2 is standing 12 metres away, he is almost on one side of the road which is bifurcating the Tahsildar office and Pawad Mutyan Temple. Further, if some body stands 12 metres away from the Pawad Mutyan Temple, that too on the other side of the road what actually transpires near at Pawad Mutyan Temple cannot be seen. 28. In otherwords, except the evidence of complainant who is an interested witness in somehow trapping the accused in the incident, there is no independent evidence to establish neither the demand nor actual handing over of the tainted currency. 29. In this regard, it is the explanation of the accused which assumes importance in explaining the tainted currency being found in his hand when raid party came. 29. In this regard, it is the explanation of the accused which assumes importance in explaining the tainted currency being found in his hand when raid party came. 30. Accused has immediately given explanation that the money was thrusted into his hands and he did not handle the tainted currency either by keeping it in the shirt pocket or in the pant pocket or hiding the money in some other place. 31. It is also pertinent to note that without much loss of time as soon as money was thrusted into the hands of the accused, head of the raid party appeared on the scene, as there is no time for the complainant to actually give the pre-designated signal to the remaining persons of the raid party including P.W.9. 32. All these factors when viewed cumulatively, it is crystal clear that neither the demand is established by the prosecution nor acceptance of the tainted currency with cogent and convincing evidence on record. 33. Cross examination of P.W.2 clearly indicates that he was neither witnessed the demand nor actual handing over of the tainted currency. 34. For the reasons best known to the prosecution, co-pancha is not examined and contents of the trap mahazar and actual sequence of events that has taken place contradicts each other which means that trap mahazar might have been prepared much earlier to trap itself. 35. Further it is elicited from the evidence of Tahsildar and P.W.8-Deputy Commissioner that it is not the accused who was required to issue any such separate RTC as the procedure is that after the application is received in Bhoomi Kendra, it would be sent to Village Accountant to be kept for 30 days for inviting objections and later on if no objections are received, it is to be forwarded to the higher authorities for passing Orders. Such an endorsement has been found on 06.03.2015 itself, but actual trap has taken place on 16.03.2015. 36. Thus, it can be inferred that there was no work pending as on the date of trap with the accused which has also been admitted by P.W.9 in his cross-examination. 37. All these factors, when viewed cumulatively, the prosecution has utterly failed in establishing any one of ingredients much less all ingredients to attract the offence under Sections 7 or 13(1)(d) of the Prevention of Corruption Act. 38. 37. All these factors, when viewed cumulatively, the prosecution has utterly failed in establishing any one of ingredients much less all ingredients to attract the offence under Sections 7 or 13(1)(d) of the Prevention of Corruption Act. 38. Accordingly, point Nos.1 and 2 are answered in the negative. REGARDING POINT No.3: 39. In view of finding of this Court on point Nos.1 and 2, question of answering point No.3 would not arise for consideration. REGARDING POINT No.4: 40. In view of the finding of this Court on point Nos.1 to 3 as above, the following: ORDER (i) Appeal is meritless and is hereby dismissed. (ii) Bail bonds, if any, stands cancelled.