JUDGMENT

Sabhahit, J.:—

This appeal by the State is directed against the Judgment of acquittal passed by the Court of Special Judge, Bangalore Urban and Rural District, Bangalore City, in Special Case No. 138/1999 dated 10/08/2001 wherein the respondent-accused before the trial Court has been acquitted of the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988.

2. The essential facts of the case, leading up to this appeal with reference to the rank of the parties before the trial Court are as follows:

The accused was working as Deputy Tahasildar, Doddamallur. The Assistant Commissioner, Ramanagaram Sub-Division, passed an order in RA.(LKP):138/96-97 dated 07/09/1990 directing that the name of the complainant should be entered along with the respondent in the appeal and an application had been given to the Deputy Tahasildar to effect entry as per the order passed the Assistant Commissioner dated 07/09/1998. The application was filed on 13/10/1998 and on 16/10/1998, the complainant went and made enquiry with the accused and he was informed that wrong survey number had been mentioned in the order of the Assistant Commissioner and the same should be got corrected and the accused also demanded an amount of Rs. 800/- as bribe for making entry as per the directions given the Assistant Commissioner. Since the complainant was not willing to pay bribe, he went and lodged a complaint with Lokayuktha Police Inspector PW-8, which was registered in Crime No. 7/1998 for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. The complaint was lodged on 03/11/1998. Thereafter, PW-8 secured the presence of PWs 2 and 4 and after demonstration regarding preparation of sodiumcarbonate solution and washing of hands, entrustment mahazar was prepared by PW-8 as per Ex. P-3 and thereafter PW-8 along with PWs 1, 2 and 4 and his staff went near the office of the Deputy Tahsildar and the complainant was directed to hand over the money to the accused, if he demands bribe and to give signal by wiping his face with the towel. Accordingly, they went near the office of the accused and PW-2 was asked to accompany the complainant and narrate the transaction that takes place. They reached Mallur Village at about 1.45 p.m The vehicle was parked at a distance of 600 feet yards from the office at Nadakacheri, Mallur Village. PW-8 kept watch and PWs 1 and 2 returned and said that the accused had informed that there is mistake in mentioning the survey number as 16/2 instead of 16/3 and the said error should be got corrected in the order of the Assistant Commissioner. The complainant was asked to approach the Assistant Commissioner for correction of the said mistake and mahazar was drawn as per Ex. P-4. Thereafter, the mistake mentioned in survey number was got corrected by filing an application before the Assistant Commissioner. Thereafter, the complainant approached the Lokayuktha Police with the order of the Assistant Commissioner correcting the survey number and he was asked to come on 18/11/1998. On 18/11/1998, PW-8 secured the presence of PWs 2 and 4 and entrustment mahazar was prepared as per Ex. P-5 and PW-8 along with PWs 1, 2 and 4 and his staff left the office of Lokayuktha at about 11.00 a.m and reached Mallur at about 1.00 p.m The Jeep of the police was parked at a distance of 150 yards from the office of Nadakacheri, Mallur. PWs 1 and 2 went to the office of the accused as per the instructions of PW-8 with a direction to hand over the tainted currency notes, if demanded by the accused and to give a predetermined signal. The accused was present in the office and the accused asked the complainant as to whether he had brought the money. The complainant answered in the affirmative, then the-accused asked the complainant to wait outside and he would come out of the office at Bangalore-Mysore Road. Thereafter, the accused came out and while they were walking on the road, the accused asked the complainant as to whether the complainant had brought the money. The complainant removed the amount from his shirt pocket and handed over the tainted currency notes to the hands of the accused and the accused received the said amount from his left hand and kept the amount in his left side pant pocket. Thereafter, the complainant gave pre-determined signal and PWs 8 and 4 went to the spot and caught hold the hands of the accused. The complainant pointed out the accused that the accused had demanded and accepted the money. Thereafter, the Lokayuktha Police took all of them to the office at Mallur, Nadakacheri and asked the accused to produce the money. Thereafter, the hands of the accused were washed with water and the hand wash of the accused, i.e left hand of the accused washed in solution, turned to rose colour. Thereafter, mahazar was prepared and the said currency notes were verified with the currency notes mentioned in the entrustment mahazar and thereafter the police seized the pant of the accused and the left hand pocket of the pant was dipped in the solution and the solution turned to rose colour. PW-8 seized the papers pertaining to the application given by the complainant as per Ex. P-6 and prepared mahazar as per Ex. P-7. Thereafter, PW-8 obtained sanction to prosecute the accused from PW-3 as per Ex. P-12. Charge sheet was filed by PW-6 against the accused after obtaining the sketch of the scene of offence from the Assistant Engineer, PW-3 as per Ex. P-4. The accused pleaded not guilty and claimed to be tried.

3. On behalf of the prosecution, PWs 1 to 8 were examined and Exs. P-1 to P-26 and M.Os 1 to 12 were got marked.

4. The defence of the accused as stated in the answer given to the questions framed under Section 313 of the Code of Criminal Procedure is that PW-1 forcibly thrust the amount of Rs. 800/- into his pant pocket and the police seized the same and he did not make demand for bribe from the complainant. The accused did not lead any defence evidence.

5. The trial Court by its Judgment dated 10/08/2001 held that the prosecution has failed to prove beyond reasonable doubt the demand and acceptance of bribe by the accused as alleged by the prosecution and accordingly acquitted the accused of having committed the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Being aggrieved by the said Judgment of acquittal dated 10/08/2001, this appeal is filed by the State.

6. I have heard the learned State Public Prosecutor and the Learned Counsel appearing for the respondent.

7. The learned State Public Prosecutor submits that the Judgment of acquittal is perverse and arbitrary, as it is not based upon the material on record and the evidence of the complainant and the shadow witness i.e PWs-1 and 2, clearly proves the demand and acceptance of bribe by the accused and the defence that the amount was thrust into the pocket of the accused by PW-1 has not been substantiated, as the said suggestion is not even made to Pw-1 in his cross-examination and the trial Court has held that the sanction order obtained is not in accordance with law and was not justified in relying upon the discrepancies in the evidence of PWs 1 and 2 as to the pocket of the pant in which the amount was kept by the accused and other inconsistency which do not relate to the material facts regarding the demand and acceptance of bribe and when once the recovery of the amount from the possession of the accused is proved, there is presumption under Section 20 of the Prevention of Corruption Act, 1988, and the said presumption is not rebutted by the accused, as the defence statement is not probabalised by the material on record.

8. On the other hand, the Learned Counsel appearing for the respondent submitted that the evidence of PWs 1 and 2 is inconsistent. There is no material to show the demand and acceptance of bribe by the accused and there is inconsistency in the evidence of PWs 1 and 2 about the receipt of the amount and the material on record probabalises the defence of the accused that the amount was seized in the pocket of the accused and the hands of the accused were not washed before the amount was produced and hands of the accused have been washed only after the amount was produced and Judgment of acquittal is justified, as rightly held by the trail Court. The Learned Counsel further submitted that there is no material to show the demand of bribe on 03/11/1998 or any date prior to 18/11/1998 and the evidence of PW-2 shows that he did not hear the conversation between the complainant and the accused, as the conversation was over by the time he crossed the road and reached the accused and PW-1.

9. Having regard to the contentions urged, the points that arise for determination in this appeal are:

1. Whether the finding of the trial Court that the prosecution has failed to prove beyond reasonable doubt that the accused being a public servant working in the capacity of Deputy Tahsildar, Nadakacheri, Mallur, Channapatna Taluk, Bangalore Rural District, had demanded with the complainant on 18/11/1998 to pay an illegal gratification of Rs. 800/- as a motive or reward, to show official favour in favour of complainant in connection with change of katha, pahani and mutation in respect of land in Sy. No. 12/2 and 16/3 of Mallur Village, belonging to the complainant and accepted said sum of Rs. 800/- on the same day at about 1.10 p.m and thereby committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988?

2. Whether the finding of the trial Court that the prosecution has failed to prove beyond, reasonable doubt that the accused being a public servant by corrupt or illegal means or by otherwise abusing his position as public servant obtained for himself a pecuniary advantage of Rs. 800/- on 18/11/1998 near a temple compound at Dodda Mallur on Bangalore-Mysore Road at about 1.10 p.m from the complainant and thereby committed an offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988?

3. And the answer that the prosecution has proved the guilt of the accused, what is the sentence to be imposed upon the accused for the offences of which he is found guilty?

4. What order?

and I answer the above points for determination as follows:

1.- in the negative;

2.- in the negative; and

3 & 4.- as per the final order for the following reasons

10. Points 1 and 2: These points are considered together since they are interconnected and to avoid repetition.

11. I have been taken through the oral and documentary evidence adduced by the prosecution and scrutinized the evidence adduced by the prosecution as also the contents of the documents got marked, entrustment mahazar and the trap mahazar and other material on record.

12. PW-1 is the complainant. PW-2 is the shadow witness. PW-3 is the Assistant Engineer, who prepared the sketch as per Ex. P-12. PW-4 is the Panch witness to entrustment and trap mahazar. PW-5 is the retired Tahsildar, who has been examined about the filing of the application by the complainant. PW-6 is the Investigating Officer, who filed charge sheet. PW-7 is the sanctioning authority, who has issued sanction order to prosecute the accused as per Ex. P-19. PW-8 is the Police Inspector, who registered the complaint and laid the track and conducted the investigation till further investigation was taken over by PW-6.

13. It is clear from the evidence of PW-1 that he has clearly stated in his evidence about the demand and acceptance of bribe of Rs. 800/- on 18/11/1998 though there is no material to substantiate the contention that the complainant accused had made demand on 03/11/1998. The evidence of PWs 1 and 2 is consistent so far as the recovery of Rs. 800/- from the pant pocket of the accused is concerned and the defence taken by the accused would also show that even according to the answers given to question Nos. 18, 19, 20, 30 and 31 of the 313 statement recorded by the trial court, it is stated by the accused that the amount was thrust into his pant pocket and the police have seized the amount of Rs. 800/- (M.O 10) i.e 8 currency notes of Rs. 100/- denomination. It is true that there is inconsistency in the evidence of PWs 1 and 2. So far as the demand is concerned, PW-1 has clearly stated in his evidence that accused asked him as to whether he had brought money and the complainant answered in the affirmative and he was asked to sit outside the office and he would come out and thereafter himself, PW-2 were sitting outside and thereafter the accused came out and when they were walking on the road, accused asked whether the complainant had brought money and the complainant removed the amount from the left side pocket of his shirt and handed over the tainted currency notes to the accused and the accused received the said tainted currency notes from his left hand and kept that amount into his left side pant pocket. Even according to PW-2, the amount was taken by the accused in his right hand and kept the same in the right pocket of his pant and it is elicited in the cross-examination of PW-2 that he could not cross the road along with PW1 and the accused and by the time he could cross the road and reach PW-1 and the accused, the conversation between PW-1 and the accused was over. Further, the evidence of the complainant is truthful, reliable and cogent. Having regard to the defence raised by the accused which has not been substantiated, it is clear that the trial Court was not at all justified in discarding the evidence of PWs 1 and 2. PW-4 has also stated about the recovery of the money from the accused and in view of the fact that the accused has admitted the recovery of amount and it is his defense that the said amount of Rs. 800/- was thrust into his pant pocket and he has admitted the recovery of the said amount by the Lokayuktha Police, it is clear that the finding of the trial Court that the evidence of PWs 1 and 2 does not prove the demand and acceptance of Rs. 800/- and recovery of the same from the accused is not based upon the material on record, as the material on record as referred to would clearly show that the evidence adduced by the prosecution clearly proves that the accused demanded and accepted Rs. 800/- and the said amount was handed over by the accused by taking out the said amount from his pant pocket and was seized under the mahazar, which has been admitted by the accused in his 313 statement. Mere fact that the hands of the accused were washed after the amount was produced as referred to in the evidence of PW-8 as elicited in his cross-examination would not by itself lead to the conclusion that the amount had been trust into the pocket of the accused as the said defence is not even suggested to PW-1. The trial Court has not considered the evidence of PWs 1, 2 and 4 in the proper perspective and has given undue importance to the minor discrepancies in the evidence of PWs 1 and 2 without having referred to the defence taken by the accused as answer to the questions framed under Section 313 of the Code of Criminal Procedure and when the above said facts of demand and acceptance of amount and recovery of the amount from the possession of the accused is proved, there is presumption under Section 20 of the Prevention of Corruption Act and it has to be justifiably invoked in the present case, in view of the above said facts and presumption is that unless the contrary is proved that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as a motive or reward such as is mentioned in Section 7. The trial Court has also erred in attaching much importance to the contents of Ex. P-6 which had not yet been communicated to the accused, as it is clear from Ex. P-6 that though the said order said to have been passed by the Assistant Commissioner, the matter was put up for further orders and no communication had been sent to the complainant. Under the circumstances, in the absence of any material to rebut the presumption, I hold that the finding of the trial Court that the prosecution has failed to prove the guilt of the accused for the offences punishable under Sections 7 and 13(1)(d) of the Prevention of Corruption Act, 1988 is erroneous and the same is liable to be set aside and having regard to the evidence of PWs 1, 2 and 4 and the defence taken by the accused, it is clear that the prosecution has proved beyond reasonable doubt that accused demanded and accepted amount of Rs. 800/- as illegal gratification and the material on record shows that at the time of seizure of the amount, the accused did not offer any explanation and sought for time to give his explanation and answer to the questions framed under Section 313 statement, he has stated that the amount was thrust into his pocket forcibly and the same was recovered from his possession by the Lokayuktha Police. Accordingly, I hold that the finding of the trial Court that the prosecution has failed to prove the guilt of the accused for the offence charged is liable to be set aside and having regard to the above said material on record, the only conclusion that could be arrived at is that the prosecution has proved beyond reasonable doubt that the accused has committed the offences punishable under Sections 7 and 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988. Accordingly, I answer points Nos. 1 and 2.

14. POINT NOS. 3 AND 4: The offence punishable under Section 7 is punishable with imprisonment which shall not be less than six months but which may extent to five years and shall also be liable to fine and the offence under Section 13(1)(d) of the Prevention of Corruption Act, 1988, is punishable under Section 13(2) with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine.

15. I have heard the Learned Counsel appearing for the respondent and the learned State Public Prosecutor for the State on the question of sentence.

16. The learned Counsel appearing for the respondent-accused submitted that a lenient view may be taken, as the accused is aged 56 years and he is still in service.

17. The learned State Public Prosecutor submitted that reasonable punishment may be imposed having regard to the fact that the accused being a Deputy Tahsildar and has accepted bribe for discharging his official duty.

18. I have considered the contentions of the Learned Counsel appearing for the respondent-accused and the learned State Public Prosecutor. Having regard, to the circumstances under which the offence has been committed and the sentence prescribed for the offences of which the accused has been found guilty, I hold that the interest of justice would be met by sentencing the accused to undergo rigorous imprisonment for a period of one year for having committed the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and to pay Cine of Rs. 3,000/ in default of payment of fine to undergo simple imprisonment for a period of three months' and to under go rigorous imprisonment for two years for the offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and to pay fine of Rs. 5,000/- in default of payment of the, to undergo simple imprisonment for six months and accordingly, pass the following order:

19. The Criminal Appeal is allowed in part. The judgment of acquittal passed by the trial Court dated 10/08/2001 acquitting the accused-respondent in the appeal is set aside and the accused is found guilty of having committed the offences punishable under Section 7 and Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988. The respondent-accused is sentenced to undergo rigorous imprisonment for a period of one year for having committed the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and to pay fine of Rs. 3,000/- (Rupees Three Thousand only) in default of payment of fine, to undergo simple imprisonment for a period of three months' and the accused-respondent is sentenced to undergo rigorous imprisonment for two years for the offence under Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988 and to pay fine of Rs. 5,000/- (Rupees Five Thousand only) in default of payment of fine to undergo simple imprisonment for six month's. Substantive sentence imposed upon the accused shall run concurrently and the accused shall be set off for the period of detention undergone during trial or investigation against the sentence now imposed upon him under Section 428 of the Code of Criminal Procedure. The bail granted so the accused is cancelled and the trial Court shall secure the presence of the accused and remand the accused for serving out the sentence imposed upon him.