JUDGMENT : M G Uma, J. The appellant-accused in Spl.C.No.118/2010 on the file of the learned II Additional District and Sessions Judge, Tumkuru, is impugning the judgment of conviction and order of sentence dated 07.12.2013 convicting him for the offence punishable under Sections 7, 13(1)(d) R/w Section 13(2) of the Prevention of Corruption Act (for short 'the PC Act') and sentencing him to undergo rigorous imprisonment for a period of six months and pay a fine of Rs.5,000/- for the offence punishable under Section 7 R/w Section 13(2) of the PC Act, to undergo rigorous imprisonment for a period of two years and pay a fine of Rs.5,000/- for the offence punishable under Section 13(1)(d) R/w Section 13(2) of the PC Act, with default sentence. 2. Brief facts of the prosecution case is that, the accused being Sub-Inspector of police, Sira Town Police Station, is a public servant. He demanded illegal gratification of Rs.4,000/- from the informant and received the same on 01.12.2008 to show the official favour, misusing his official position and thereby committed misconduct punishable under Sections 7, 13(1)(d) R/w Section 13(2) of the PC Act. 3. The informant PW1 filed the first information stating that he is a scrap vendor and had filed an application as per Ex.P5, seeking police protection to conduct his business. In that connection, when PW1 met the appellant, he demanded for mamul of Rs.5,000/- per month and after bargain, he scaled it down for Rs.4,000/-. Since the complainant was not willing to pay the illegal gratification, he had filed the first information as per Ex.P1 with Lokayukta police, who registered the FIR, conducted pre-trap panchanama, entrusted Rs.4,000/- to the informant with an instruction to meet the accused along with the shadow witness. Accordingly, the informant met the accused in his police station along with the shadow witness. The accused asked the complainant as to whether he has brought the amount. When the complainant tendered the phenolphthalein powder smeared currency notes entrusted to him by the Investigation Officer, the accused received the same with his hands, kept it on his table and thereafter, kept a news paper on it, and placed his hat on the same. The accused asked the complainant as to whether he has brought the amount. When the complainant tendered the phenolphthalein powder smeared currency notes entrusted to him by the Investigation Officer, the accused received the same with his hands, kept it on his table and thereafter, kept a news paper on it, and placed his hat on the same. On receiving the signal from the informant, Lokayukta police along with pancha- witness came to the spot, held hand wash of left and right hand of the accused separately in the Sodium carbonate solution, which turned into pink colour. The samples were drawn. When the accused was asked to produce the amount, he stated that it is under the news paper and the same was recovered. The trap-panchanama was drawn in the presence of mahazar witnesses. Explanation from the accused as per Ex.P14 was taken. After completing the investigation, the charge sheet came to be filed contending that the accused being the public servant, to show the official favour to the complainant i.e, consideration of his application Ex.P5, demanded bribe amount of Rs.4,000/- per month and received the same. Thereby committed the offence as stated above. 4. The Trial Court took cognizance of the offence and summoned the accused. The accused appeared before the Trial Court and pleaded not guilty and claimed to be tried. The prosecution examined PWs.1 to 9, got marked Exs.P1 to 19 and identified Mos1 to 9 in support of its contention. The accused denied all the incriminating materials available on record in his statement recorded under Section 313 of Cr.PC., got examined as DW1 and got marked Exs.D1 to 5 in support of his defence. However, the accused has not stepped into the witness box. 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 that the accused has not probabalised his defence. Therefore, he is liable for conviction. Accordingly, the impugned judgment of conviction and order of sentence came to be passed. Being aggrieved by the same, the accused is before this Court. 5. Heard Sri.S.G. Rajendra Reddy, learned counsel for the appellant and Sri. B.S.Prasad, learned counsel for the respondent. Perused the materials including the Trial Court records. 6. Therefore, he is liable for conviction. Accordingly, the impugned judgment of conviction and order of sentence came to be passed. Being aggrieved by the same, the accused is before this Court. 5. Heard Sri.S.G. Rajendra Reddy, learned counsel for the appellant and Sri. B.S.Prasad, learned counsel for the respondent. Perused the materials including the Trial Court records. 6. Learned counsel for the appellant contended that there is inordinate delay in lodging the complaint. The Investigating Officer has not verified as to whether the informant is actually running the Gujri shop or not. Even if such a business was being run by the informant, police protection cannot be given to each and every such person, and the accused is not duty bound to respond to the same. He further submitted that as per the evidence of the prosecution witnesses, even before registering the FIR, the pancha witnesses were summoned, and the proceedings were drawn. There is discrepancy with regard to filing of the first information by PW1, as to whether he has submitted the written complaint, or his oral statement was recorded in the police station to register the case. It is further submitted that the evidence of PW4 discloses that he was summoned to draw the sketch of the scene of occurrence prior to the trap itself. Moreover, it is evidence of shadow witness-PW2 that he was standing outside and was not in a position either to hear any conversation or to see anything inside the chamber. 7. Learned counsel submitted that in the statement recoded under Section 313 of Cr.PC, the accused has categorically stated that he was not in his chamber nor in the police station, at the time of alleged incident. He stated that as soon as he came to the police station, he was held by the Lokayukta Police and thereafter, he was taken to his chamber. It was PW1-complainant, who had shown the amount, which was concealed beneath the news paper. Therefore, it is his contention that the demand and acceptance of illegal gratification was not proved by the prosecution and it was a preplanned accusation made against the appellant without any basis. Hence, he prays for allowing the appeal. 8. Per contra, it is the contention of the learned counsel for the respondent that admittedly, the appellant was working as Police Sub-Inspector (PSI), at Sira Town Police Station and he is a public servant. Hence, he prays for allowing the appeal. 8. Per contra, it is the contention of the learned counsel for the respondent that admittedly, the appellant was working as Police Sub-Inspector (PSI), at Sira Town Police Station and he is a public servant. Ex.P5 is the application submitted by the informant-PW1. That was seized from the police station of which, the appellant was the PSI. Admittedly, the said application was not attended to by the PSI. It is the specific contention of the informant-PW1 that he had demanded the bribe on monthly basis to permit him to run his scrap business. It is referred to as mamul by the accused to be given to him by the informant. Therefore, the complainant has filed first information as per Ex.P.1 on 01.12.2008, by arranging for the amount of Rs.4,000/- to be tendered to the accused. PW1 being the informant, PW2 being the shadow witness, have consistently supported the case of the prosecution. PW5 – the panch witness and PW8 – the Investigating Officer have also supported the case of the prosecution. Nothing has been elicited from any of these witnesses to disbelieve their version. 9. Learned counsel submitted that, a defence was taken that the accused never touched the tainted amount and that, the complainant has concealed the amount beneath the news paper. But, the witnesses PWs.1 and 2 have categorically stated that the accused had received the tainted amount from his hands, and he himself had concealed it beneath the news paper. PWs.1, 2, 5 and 8 have also stated that when hand wash of the accused were taken in the Sodium carbonate solution, both the hand wash turned into pink colour. Moreover, Ex.P19 is the FSL report, which goes to show that both the hand wash tested positive for the presence of Phenolphthalein powder. Therefore, it is clear that the prosecution is successful in proving its contention regarding demand and acceptance of the amount, recovery of tainted amount from the accused and thereby proved its contention about commission of the offence under Sections 7, 13(1)(d) R/w Section 13(2) of the PC Act. The Trial Court after taking into consideration all these materials, convicted the accused and there are no reasons to interfere with the same. Accordingly, he prays for dismissal of the appeal. 10. The Trial Court after taking into consideration all these materials, convicted the accused and there are no reasons to interfere with the same. Accordingly, he prays for dismissal of the appeal. 10. In view of the rival contentions urged by learned counsel for both the parties, the point that would arise for my consideration is: “Whether the appellant-accused has made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the Trial Court? My answer to the above point is 'Partly in the Affirmative' for the following: REASONS 11. It is the contention of the prosecution that the accused was working as PSI and he was a public servant. This contention is not denied by the accused, rather it is admitted. It is the further contention of the prosecution that the accused had demanded illegal gratification of Rs.4,000/- per month from the informant, who was running a scrap business and that Rs.4,000/- was to be paid by the complainant on monthly basis. It is referred to by the informant as mamul. PW1 being the informant has filed the first information as per Ex.P1 on 01.12.2008. It is the contention of the learned counsel for the appellant that there was inordinate delay in filing the complaint and therefore, the version of the prosecution cannot be accepted. Even though there is delay of few days in filing the first information, the same is not fatal to the case of the prosecution looking to the nature of the offence. According to the case made out by the prosecution, the accused demanded illegal gratification on 21.11.2008 and the first information was filed on 01.12.2008. The informant stated that he had arranged for Rs.4,000/- to be produced before the Investigating Officer for the purpose of tendering the same to the accused. Arranging the amount of Rs.4,000/- by the informant requires some days atleast, and under such circumstances, it cannot automatically be said that there was inordinate delay in filing the first information. Moreover, nothing has been suggested to PW1 that he gained time to embezzle the facts during that period. Therefore, the contention of the learned counsel for the appellant in that regard is rejected. 12. The second contention taken by the learned counsel for the appellant is that the Investigating Officer has not verified as whether the informant is running a scrap shop or not. Therefore, the contention of the learned counsel for the appellant in that regard is rejected. 12. The second contention taken by the learned counsel for the appellant is that the Investigating Officer has not verified as whether the informant is running a scrap shop or not. The said fact was never disputed by the accused. On the other hand in his explanation Ex.P14, he admits that the accused had came up with an application as per Ex.P5. Under such circumstances, the Investigating Officer in the present case was not required to verify the fact that complainant was running the scrap shop. Ex.P5 was recovered from the office of the accused and it is never the contention of the accused that it was concocted or the same was not recovered from his office. 13. In view of Ex.P5, the contention of the prosecution that an official work was pending with the accused cannot be disbelieved. Even though it is contended that, there is discrepancy as to whether the informant had given a written complaint or his oral statement was recorded in the police station, it do not assume any importance in view of the evidence given by PW1 that, he had gone near Taluk Office, got the information typewritten and gave it to Lokayukta Police. 14. The other contention raised by the appellant that he cannot give protection to all the persons to run their business and the accused is not duty bound to provide any protection to the appellant could be accepted, as giving protection to the individual business men may not be practical. But that doesn't mean to say, that the accused can keep the application Ex.P5 without giving any reply. He could have rejected the application then and there instead of keeping it pending. No reasonable ground is made out as to why the application was kept in his table, without attending to the same. 15. PW1 stated about the demand made earlier to the filing of the first information, and the demand made on the date of trap, recovery of the said amount by the Lokayukta Police. No reasonable ground is made out as to why the application was kept in his table, without attending to the same. 15. PW1 stated about the demand made earlier to the filing of the first information, and the demand made on the date of trap, recovery of the said amount by the Lokayukta Police. The version of PW1 was corroborated by PW2 with regard to the demand and acceptance of illegal gratification on the date of offence, the procedure that was followed by the Investigating Officer while drawing pre-tap panchanama and trap-panchanama as per Exs.P2 and 3 were consistently deposed by PWs.1, 2, 5 and 8. The evidence of PW2 - the shadow witness is consistent in all material particulars. The witnesses have stated that immediately when Investigating Officer came and introduced himself to the accused, both his hands were dipped in Sodium carbonate solution in a different bowls the same changed its colour. PW1 says it has turned into pink colour, while other pancha witnesses just says it has changed its colour. The same cannot be dubbed as material contradiction in the evidence of the prosecution witness. The contention taken on behalf of the appellant that the witnesses have given inconsistent evidence as to when they were summoned to Lokayukta police, and that the witnesses were summoned before registration of FIR etc., cannot be accepted by taking stray sentences here and there. 16. The witnesses were cross-examined with reference to few dates now to contend that there is inconsistency in their evidence. It is pertinent to note that the incident had occurred on 01.12.2008. The prosecution witnesses were examined during 2012 i.e., about 3 ½ to 4 years after the incident. Under such circumstances, it cannot be said that the witnesses will remember the date and time to give a parrot like evidence. The evidence led by PWs.1 and 2 is quite natural and the same cannot be ignored so lightly. 17. On considering the evidence given by PW2 - shadow witness, the contention taken by the learned counsel for the appellant that since he was standing outside the chamber of the accused, he was not in a position either to see or hear the conversation between the complainant and the accused cannot be accepted, as the same is categorically denied by the witness. When the prosecution witnesses deposed before the Court consistently about the demand and acceptance of the illegal gratification by the accused to show the official favour, the prosecution is successful in proving its contention. The presumption under Section 20 of the PC Act would operate shifting the burden on the accused to prove the contrary. 18. Ex.P14 is the explanation given by the accused at the earliest point of time i.e., immediately after recovery of the tainted amount. It was written by the accused in his own handwriting. According to which, a person came and informed him that there is rise in illegal activities in the city, for which, the accused asked him to give it in writing and went away to meet his higher officer. When he came back, the Lokayukta SP came and demanded money and later, he was taken to his chamber, washed both his hands, but the solution did not changed the colour, again Lokayukta police asked as to where is the money. The accused pleaded his ignorance about any money and they searched in his office to find Rs.4,000/-, which was on the table concealed under the news paper. Therefore, it is contended that no money was demanded or accepted by him. When he had gone out, the amount was kept on his table beneath the news paper, only with an intention to harass him. The said defence was once again reiterated by the accused in his statement recorded under Section 313 of Cr.PC. But during cross-examination of the prosecution witnesses, the same was never probabalised. 19. It is interesting to note that the accused had not stepped into the witness box. But he got examined DW1 to depose before the Court that he had gone to the police station on the date of incident, in connection with a compromise entered into between two groups, about 1.00 p.m. or 1.30 p.m., in the noon, the accused came to the police station at about 2.00 p.m., he came out of meeting and he was enquiring with the witness, at that time suddenly, some persons came and attacked the accused and asked for money, on personal search of the accused, nothing was found. The informant stated that the amount is inside and the Police Inspector took him inside the police station. The informant stated that the amount is inside and the Police Inspector took him inside the police station. During cross-examination, the witness states that he is an MA graduate, studied law for some years and he is doing social work and also politics. He very frequently visits the police station along with others. When he is having such acquaintance with the accused, there is nothing strange that he has deposed before the Court. But however, the witness does not say that he had gone inside the chamber and what had happened thereafter. No credence could be attached to the evidence of this witness. If at all the accused had any valid defence, he should have probabalised it while cross- examining the prosecution witnesses or he should have entered the witness box to depose about the same. When no such things were done by the accused, it is to be held that the prosecution is successful in proving the guilt of the accused beyond reasonable doubt, for which the accused is liable for conviction. 20. At this stage, the learned counsel for the appellant submitted that the accused is sentenced to undergone two years of rigorous imprisonment for the offence punishable under Section 13(1)(d) R/w Section 13(2) of PC Act, even though the minimum sentence is one year. Therefore, praying leniency in favour of the appellant-accused. 21. I have gone through the impugned judgment of conviction and order of sentence passed by the Trial Court. It has taken into consideration the materials on record in proper perspective and proceeded to convict the accused for the above said offences. It has sentenced the accused to undergo rigorous imprisonment for a period of six months and to pay a fine of Rs.5,000/- with default sentence for the offence punishable under Section 7 R/w Section 13(2) of the PC Act. As per Section 7, as it stood as on the date of the incident, the minimum sentence that could be imposed is six months. Therefore, there is no scope for interference with the same. As regards the offence under Section 13(1)(d) R/w Section 13(2) of the PC Act, the accused is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/-, with default sentence. The minimum sentence that could be imposed on accused was one year, as on the date of the incident. As regards the offence under Section 13(1)(d) R/w Section 13(2) of the PC Act, the accused is sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/-, with default sentence. The minimum sentence that could be imposed on accused was one year, as on the date of the incident. The Trial Court has not assigned any reason to impose such sentence of two years. 22. On consideration of materials on record, this Court does not find any justification for imposing two years of rigorous imprisonment. Therefore, I am of the opinion that the accused may be sentenced with minimum sentence of one year with fine of Rs.5,000/- for the offence punishable under 13(1)(d) R/w Section 13(2) of the PC Act. Under such circumstances, I am of the opinion that the appeal preferred by the appellant is liable to be allowed in part. 23. Accordingly, I answer the above point partly in the affirmative and proceed to pass the following: ORDER (i) The criminal appeal is allowed in-part (ii) The judgment of conviction and order of sentence for the offence punishable under Section 7 R/w Section 13(2) of the PC Act is confirmed. (iii) The judgment of conviction, convicting the accused for the offence punishable under Section 13(1)(d) R/w Section 13(2) of the PC Act is confirmed. However, the order of sentence is modified as under: (a) The accused is sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.5,000/- in default to pay fine, to under go simple imprisonment for three months. (b) The other part of the order of sentence passed by the Trial Court is confirmed. Registry to send back the TCR along with copy of this judgment for information and for needful action.