Kerala High Court
Edison vs State Of Kerala on 13 July, 2026
2026:KER:51547
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 13TH DAY OF JULY 2026 / 22ND ASHADHA, 1948
CRL.A NO. 1334 OF 2015
CRIME NO.4/2007 OF VACB, PATHANAMTHITTA
AGAINST THE JUDGMENT DATED 07.12.2015 IN CC NO.16 OF 2009 OF ENQUIRY
COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
APPELLANT/ACCUSED NO.1:
EDISON
S/O. ALBERT
AGED 63 YEARS
FORMERLY SECRETARY,
RANNI ANGADI GRAMA PANCHAYATH,
PATHANAMTHITTA.
BY ADVS.
SRI.GEO PAUL
SRI.S.ASHOK KUMAR.
SRI.LENIN P. SUKUMARAN
SRI.C.R.PRAMOD
SMT.RADHIKA RAJASEKHARAN P.
ADV.JACOB GEORGE PALLATH
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY DY.SP.,
VACB KOTTAYAM,
BY PUBLIC PROSECUTOR,
HIGH COURT OF KERALA,
PIN - 682 031.
BY SMT. REKHA.S, SENIOR PUBLIC PROSECUTOR
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 15.06.2026,
THE COURT ON 13.07.2026 DELIVERED THE FOLLOWING:
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'C.R.'
JUDGMENT
Dated this the 13th day of July, 2026
The judgment dated 07.12.2015 in C.C. No.16/2009 on the
files of the Enquiry Commissioner and Special Judge, Kottayam,
is under challenge in this appeal filed under Section 374 of the
Criminal Procedure Code [hereinafter referred as ‘Cr.P.C‘, for
short], at the instance of the first accused, who was found guilty
by the special court.
2. Heard the learned counsel for the appellant/first
accused and the learned Public Prosecutor in detail. Perused the
judgment impugned and the records of the Special Court.
3. The prosecution case in brief is that accused Nos. 1
and 2 while working as the Secretary and III rd Grade Overseer
respectively of Ranni-Angadi Gramapanchayath and as such
being public servants, abused their official position, had hatched
conspiracy between them and in pursuance of that conspiracy,
they demanded bribe of Rs.1,500/- from PW1 on 31-10-2007, at
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the panchayath office for issuing the building permit to PW1.
Then it was accepted on 07.11.2007 on the date of trap.
4. Thus the prosecution alleges commission of offences
punishable under Sections 7 and 13(1)(d) read with 13(2) of P.C.
Act, [hereinafter referred to as the ‘P.C.Act’ for short] by accused
Nos. 1 and 2.
5. The learned Special Judge ventured the matter after
completing the pre-trial formalities. During trial, PW1 to PW6
were examined, Exts.P1 to P13 and MO1 to MO7 were marked
from the side of prosecution. Availing the opportunity provided
for adducing defence evidence, DW1 to DW3 were examined and
Exts. D1 to D7 were marked on the side of the defence. CW1, a
court witness also was examined and Exts. C1, C1(a) and C2
were also marked. On considering the matter on merits, the
learned Special Judge found that the 1 st accused/appellant herein
committed offences punishable under Sections 7 and 13(1)(d)
read with 13(2) of P.C. Act and sentenced the first accused for
the offence punishable under Sections 7 and 13(1)(d) read with
13(2) of the P.C. Act, while acquitting the second accused for
want of evidence. The sentence imposed by the Special Court is
as under:-
“In the light of the facts and circumstances of the case
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and the submissions of the 1st accused/convict, he is
sentenced to suffer rigorous imprisonment for one year
and to pay a fine of ₹20,000/- (Rupees twenty thousand
only), in default to undergo simple imprisonment for a
period of three months u/S.7 of the Prevention of
Corruption Act, 1988. He is also sentenced to suffer
rigorous imprisonment for a period of two years and to
pay a fine of ₹30,000/- (Rupees thirty thousand only), in
default to undergo simple imprisonment for a period of six
months u/S.13(1)(d) r/w.S.13(2) of the Prevention of
Corruption Act, 1988. The substantive sentences will run
concurrently. The period of detention as remand prisoner
will be allowed to get as set off u/S.428 Cr.P.C.”
6. The learned counsel for the appellant/first accused
zealously pointed out that in this case evidence of PW1 is not
reliable, since he was declared hostile to the prosecution when he
denied that any person other than the Secretary, who is the
appellant/first accused herein, had demanded bribe from him.
7. It is submitted further that as per the evidence of
PW1, who had lodged application for getting building permit on
31.10.2007, the first accused demanded bribe for himself and for
the second accused for an amount of Rs. 1,500/- on 31.10.2007.
But as per the evidence of PW2 and Ext.P6, the first accused was
on ‘other duty’ on 31.10.2007, and the same would show that
the allegation of demand made on 31.10.2007, by the first
accused is falsehood and an impossibility. Thus the prosecution
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failed to prove the case beyond reasonable doubt and therefore
by enlarging the benefit of doubt the 1st accused/appellant may
be acquitted.
8. Repelling this contention, it is submitted by the
learned Public Prosecutor that even though PW1 was declared
hostile, when he did not mention the overt tact against the
second accused, as regards the demand and acceptance of bribe
by the second accused, as regards the appellant/first accused is
concerned, his evidence is convincing and the same was in tune
with the allegation of the prosecution. It is also pointed out that a
witness is not expected to recollect and narrate the entire version
with photographic memory notwithstanding the hiatus and
passage of time as held by the Apex Court in the decision in
Vinod Kumar Garg. v. State (Government of National
Capital Territory of Delhi) reported in [2019 KHC 7175].
Therefore minor variations in the evidence of a witness, need not
be considered as serious to disbelieve the same. It is further
pointed out that since the demand and acceptance of bribe by
the appellant/first accused are proved by the prosecution, by the
evidence of PW1 supported by the evidence of PW2 decoy
witness and PW5, the Trap Laying Officer, the conviction and
sentence entered into by the Special Court impugned herein do
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not require any interference.
9. In response to the rival contentions, the points to be
considered are as under;
1. Whether the Special Court is in right in
holding that the appellant/first accused committed
offence punishable under Section 7 of the P.C. Act. ?
2. Whether the Special Court is in right in
holding that the appellant/first accused committed
offence punishable under Section 13(1)(d) read with
13(2) of the P.C. Act.?
3. Whether the verdict of the Special Court would
require interference?
4. The order to be passed?
10. Point Nos. 1 to 4: In this case the prosecution mainly
relied on the evidence of PW1 to find demand and acceptance of
MO1 series bribe money on 07.11.2007 by the appellant/first
accused in continuation of the demand made on 31.10.2007. PW1,
the de facto complainant, a man aged 70 years, testified that he had
made complaint before the Vigilance and Anti-Corruption Bureau,
Pathanamthitta regarding the demand of bribe by the accused. Then
after 3-4 days again he went to the Vigilance office and lodged a
written complaint. PW1 identified the then Secretary of Ranni Angadi
Panchayath, A1, and also the 2nd accused at the dock. According to
him, he had put up an application for permission before the
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Panchayat to construct a house in three cents of land, owned by him.
Then the 2nd accused visited his land and measured the same. The
application so given to the 1st accused, was tendered and marked in
evidence as Ext.P1. After the visit, the second accused had informed
him that permission was to be obtained from the Secretary. On the
very same day, he met the Secretary and then the Secretary
demanded ₹1,500/- as bribe for giving permission and he was
instructed to remit some other amount in the office. PW1 replied that
he did not have the money and he waited there till 3.00 p.m. and
returned. During further chief examination, PW1 testified that at the
panchayath office he had met only the Secretary and he had not met
any other person. According to PW1, apart from Secretary, no others
had demanded bribe from him. At this juncture, PW1 was declared
as hostile and the court allowed him to be cross examined on this
aspect, by the legal advisor representing the prosecution. During
cross-examination, he admitted that Ext. P2, FIS was given by him
and the same would bear his signature. Further he testified that he
had given Ext.P2 and convinced of its contents thereof and what had
been stated therein were true.
11. During further examination, PW1 given categoric evidence
regarding the entrustment of three five hundred rupee notes to the
Deputy Superintendent of Police and noting numbers of the same by
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the Deputy Superintendent of Police and he identified the said notes
as MO1 series. Thereafter, MO1 series was entrusted back to him by
the Deputy Superintendent of Police and he was instructed to give
the same to the appellant/first accused, if he would demand for the
same and also show a signal on demand of the same. Accordingly,
he reached the Panchayat office at 11.30 hours and entered into the
room of the Secretary/first accused. He found the Secretary alone in
the room. When he enquired the purpose of his visit, he told about
the permit he applied for. Soon, the Secretary asked him whether
the money demanded was brought. He replied in the affirmative and
handed over MO1 series to the appellant/first accused and he had
accepted the same by using his right hand and put the same on his
pocket. Then he was directed to remit the fee in the office. During
this transaction, he could not find the second accused therein.
Thereafter, he had showed the signal as instructed and the vigilance
team entered into the office of the appellant/first accused. Even
though PW1 was cross examined as regards to the demand and
acceptance of bribe by the first accused as well as the pre and post
trap proceedings his evidence in this regard was not at all shaken,
except the fact that he did not support the case of the prosecution
that the second accused also demanded bribe.
12. PW2, the independent witness for trap, the Technical
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Officer of District Industrial Office, Kozhenchery testified that on
7-11-2007 as per the direction of the General Manager of District
Industrial Office, he had gone to Pathanamthitta Vigilance office as a
trap witness and he reached there at the vigilance office at 9.30 a.m.
Apart from this witness, PWD Engineer, Jayarajan also was there.
The de facto complainant (PW1) also was there and he gathered
details of the complaint from PW1. The de facto complainant handed
over three 500 rupee currency notes. The Deputy Superintendent of
Police had taken note of its numbers and initialled on the same and
after smearing phenolphthalein powder on it, the same was
entrusted back to the de facto complainant directing that if the
appellant/first accused would again demand the same, had to be
given and also instructed him to give a signal if the bribe money
would be accepted by the accused. PW2 identified Ext.P3, pre-trial
mahazar in this regard. At 10.45 a.m., they had started to the
panchayath office, Ranni Angadi and reached there at about 12. The
complainant was sent to the office. Witnesses in the vigilance party
had taken positions surrounding the office. After 10 minutes, the
pre-arranged signal was received. Accordingly, the Dy.S.P. along with
him and other witnesses entered into the room of the Secretary
(A1). PW2 identified the 1st accused as Secretary at the dock. The
Dy.S.P. and these witnesses were introduced them to the
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appellant/first accused. Then the Dy.S.P. called PW1 to the office
room and enquired about what had been transpired. Then PW1
informed that he had paid the amount when the appellant/first
accused demanded the same. When Dy.S.P. enquired this aspect
with the appellant/first accused, initially the first accused denied the
same, but later he admitted demand and acceptance of MO1 series
by him. Then PW1 disclosed that the accused accepted the amount
and counted the notes. Then he had put the same in his shirt’s
pocket.
13. C.P. Gopakumar, the Deputy Superintendent of Police of
VACB, the Trap Laying Officer got examined as PW5. According to
him, on 07.11.2007, PW1 reached his office and given statement.
Acting on the same, he had registered Ext.P10 FIR. He identified the
signature therein. Then witness Nos. 2 and 3 (gazetted officers)
were brought to his office and in the presence of PW1,
Phenolphthalein powder test was demonstrated and three five
hundred rupee notes produced by PW1 were taken into custody by
preparing mahazar. According to him, he had put initials on the
notes and he identified the initials and also MO1 series notes as the
currency notes, so entrusted by PW1. Thereafter, the money was
entrusted back to PW1 with instruction to give the same to the
accused, if the first accused would demand for the same. The
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Sodium Carbonate Solution used for demonstration were marked as
MO4 through him and pre-trap mahazar was marked as Ext.P3. He
deposed further that thereafter, the vigilance party along with
gazetted officers and PW1 reached the office of the first accused and
PW1 was sent to the office with a direction to give signal on demand
and acceptance of the bribe by the first accused. He got the signal
at 12.15 p.m., and he along with the witnesses entered into the
room and introduced the identity of himself and other witnesses.
When he enquired to PW1, he stated that the first accused
demanded Rs. 1,500/- and thereafter, it was given to him and he
kept the same in the left pocket of his shirt. Though the first
accused initially denied the receipt of bribe, subsequently, he had
admitted the same. Then he brought the other officers in the room
of the first accused and prepared Sodium Carbonate solution in four
separate glasses. He deposed about the dipping of the right hand of
the first accused in Sodium Carbonate Solution and its pink colour
change, MO3 identified as the said bottle, containing Sodium
Carbonate Solution in this regard. Similarly, when the left hand of
the first accused was dipped in the Sodium Carbonate Solution, the
same also showed pink colour and the bottle of Sodium Carbonate
Solution got identified as MO6. Then at the instance of the second
witness, the pocket of the shirt of the first accused was searched and
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the first witness took MO1 currency notes therefrom and when the
same notes were dipped in Sodium Carbonate Solution the same
showed pink colour and the bottle containing Sodium Carbonate
Solution so used was identified as MO5. He also deposed about the
phenolphthalein test of the pocket of the shirt of the first accused
and pink colour change therein also. Then he had seized the shirt
worn by the first accused and the same got identified as MO7. He
also deposed the arrest of the first accused and preparation of post
trap mahazar, Ext.P4 and then Exts.P5 to P8.
14. PW6 the Deputy Superintendent of Police, Vigilance and
Anti-Corruption Bureau, Pathanamthitta, who filed the final report in
this case also supported the prosecution and recorded the
statements of witnesses.
15. On the side of defence, three witnesses were examined
and the deposition rendered by them as extracted in the judgment of
the trial court reads as under:-
“24. DW1, the Head Clerk of Ranni-Angadi panchayath who
brought the records had given evidence. That 30 th entry in building
application register in page No.6 was identified by this witness and its
photocopy compared with the original and found correct was marked
as Ext.D1. 33rd entry in page No.7 was identified by the witness. It’s
compared true copy was marked as Ext.D1(a). The file which this
witness brought and related to T.K.Gopi’s building permit. Its
photocopy was marked as Ext.D2 which was having 14 pages. The
attested photocopy of the building permit file of Thomas was marked
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as Ext.D3(a) and page Nos. 1,9, and 11 were marked as Ext.D3.
25. DW2, T.K.Gopi, who was retired from State bank of
Travancore, identified the file of his application given in Ranni-Angadi
panchayath for construction compound wall which he had filed on
24/10/2007. On 31/10/2007, the overseer (A2) who was there in the
court came to inspect the place and this witness brought him from the
panchayath office at 11 a.m. At 10.30 a.m., he was taken in an
autorikshaw after inspection they reached panchayath office by noon.
This witness again reached panchayath office and by 4.30 p.m. he got
permit which was given by first accused. This witness denied the
prosecution suggestion that A2 had not accompanied him on
31/10/2007. A2 came there and measured the compound wall.
26. DW3, P.K.Jayan, who was the U.D. clerk of the Ranni-
Angadi Panchayath, for one and half years from 2007. He had given
evidence that while he was working there in Ranni-Angadi
Gramapanchayath, the 1st accused was the secretary and the second
accused was the overseer. This witness was looking after building
permit monitoring C2 section. From that section, for site inspection
mostly A2 overseer was going. In some cases secretary also used to
go. This witness also added that, in the absence of overseer, for
sending any other official the secretary was not having any objection.
On going through Ext.D1 the witness submitted that on 31/10/2007
DW2 T.K.Gopi was given building permit. On 31/10/2007, C.V Thomas
(PW1) seen applied for building permit and that had been issued on
14/11/2007 and this witness identified his handwriting. On going
through Ext.C1, the file of the application of T. K. Gopi, this witness
identified Ext.C1(a), the handwriting in column No.11.(1) as that of
the overseer (A2) and he also identified his handwriting there in
Column No. 11(2) as that of case. He identified the signatures therein
both as that of A1. In column No.11(1) the report given by A2 is for
site inspection. This witness submitted that apart from the entries
therein, there is no other report in the file. It is categorically
mentioned by this witness that he had affixed permit number and
date as per the instruction of the Secretary (A1). As per the report in
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column No.11(1) that was for granting permit no objections have
been raised. Fees were calculated on the basis of permit therein. On
this witness writing there in column No.11(2) along the secretary had
signed it. In C1 file there is no written letter for entrusting overseer to
conduct site inspection. On confronting Ext.P7 file it is submitted that
there was no writings of 2 nd accused. Further, there was no
authorization from the part of the Secretary (A1) to inspect the site
by anybody and there was no report also. On showing the D3 file, this
witness had identified the brief report prepared on 09/11/2007. On
that day itself the Secretary (PW3) recommended to issue the permit.
Whether there was any detailed report or authorization letter was
there during his period, all he could not remember. In the cross-
examination the witness could not remember, whether as per Building
Permit Rules, Secretary had to go for site inspection. In C1(a) site
inspection column No.11 entry alone was there. There was no other
entry. He could not say whether there was any separate report in C1
file. He could not mention on which day column No.11(1) return
entries were made. As on today’s practice, that file is incomplete. On
that date, that report was complete.”
16. On perusal of the evidence given by PW1, it could be
found that during the chief examination, PW1 deposed regarding the
lodging of Ext.P1 application before the appellant/first accused
seeking permission for construction in his three cents of property. He
also stated that the Secretary demanded Rs.1,500/- as bribe. While
deposing so, he stated that except the Secretary, none others
demanded bribe to him and at this juncture, the learned Public
Prosecutor sought permission to cross examine him on declaring him
hostile.
17. Here, according to PW1, the first accused/appellant herein
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demanded and accepted MO1 series bribe money from him, on
07.11.2007, in continuation of previous demand on 31.10.2007.
Although he was declared hostile as he did not support the prosecution
regarding involvement of the second accused, there is no reason to
disbelieve the evidence of PW1 as regards to the demand and
acceptance of MO1 series bribe money by the appellant/first accused. It
is the well settled law that mere hostility of a witness would not take
away the entire evidence of the said witness inadmissible or not
reliable. Even reliable portion of a hostile witness also can be relied on
to prove a fact in issue. It is pertinent to note that here in tune with the
version of PW1, PW5 and PW2 deposed in support of the prosecution.
In such a case the Special Court is right in giving relevance on the
evidence of PW1 to prove the ingredients for the offences under
Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act.
Therefore, merely because PW1 did not support the prosecution case
against the second accused his evidence found to be reliable as
discussed cannot be discarded and the same can safely be acted upon.
18. Regarding absence of the appellant, in the office
on 31.10.2007, as argued by the learned counsel for the appellant/
first accused, based on the evidence of PW5 that on 31.10.2007, the
appellant/first accused was on other duty and Ext.P6,
the Attendance Register would show that he was on ‘other duty’.
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However, DW2 examined in this case, is the person who applied for
permit to construct compound wall as per Ext.D2. His evidence
would show that the appellant/first accused reached his property for
inspecting the same and he brought him from the office at 11.00
a.m. and he reached the office at 10.30 am for bringing him. He also
deposed that he had dropped him at the office and the Secretary
reached back in the office in the afternoon. He also reached the
office and his permit was issued at 4.30 p.m. on the same day,
signed by the appellant/first accused, the Secretary. Thus the
evidence of DW2 would show that the appellant/first accused,
though on ‘other duty’, he was available in the office on 31.10.2007.
19. It is judicially noticeable that when officers working in
offices when posted for ‘field duty’ or ‘other duty’, the same would
be noted in the attendance register to justify his absence in the
office. However, recording ‘on duty’ in the attendance register alone
is quite insufficient to hold that the officer must be absent in the
office on the date shown as ‘other duty’. A person on ‘other duty’ on
field or otherwise could very well reach the office, on the date of
‘other duty’, after completion of the duty to do his remaining works.
Therefore, merely because in Ext.P6, the appellant/first accused was
recorded as ‘on duty’, on 31.10.2007, the evidence given by PW1 as
regards to lodging of Ext.P1 application before him on 31.10.2007,
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supported by the evidence given by DW2 cannot be disbelieved.
Thus the evidence of PW1 to the effect that, the appellant/first
accused received Ext.P1 application from PW1 on 31.10.2007 and
demanded bribe is liable to be believed.
20. In this connection it is relevant to refer a 5 Bench decision
of the Apex Court in [AIR 2023 SC 330], Neeraj Dutta Vs State,
where the Apex Court considered when the demand and acceptance
under Section 7 of the P.C. Act to be said to be proved along with
ingredients for the offences under Sections 7 and 13(1)(d) r/w 13(2)
of the P.C. Act and in paragraph 68 it has been held as under :
“68. What emerges from the aforesaid discussion is
summarised as under:
(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.
(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.
(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.
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(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 Section 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 Section 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
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Section 13 (1)(d) and (i) and (ii) of the Act.
(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.
(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.
(g) In so far 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
Section 13(1) (d) and (ii) of the Act.
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(h) We clarify that the presumption in law under
Section 20 of the Act is distinct from presumption of fact
referred to above in point (e) as the former is a
mandatory presumption while the latter is discretionary
in nature.”
21. Thus the legal position as regards to the essentials under
Sections 7 and 13(1)(d)(i) and (ii) of the P.C. Act is extracted above.
Regarding the mode of proof of demand of bribe, 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 P.C. Act. In such a case, there need not be a prior demand by
the public servant. 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. The mode of proof of demand and
acceptance is either orally or by documentary evidence or the
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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. Insofar as Section 7 of the P.C. 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.
22. In this context, it is relevant to refer the decision of this
Court in Sunil Kumar K. v. State of Kerala reported in [2025
KHC OnLine 983], in Crl.Appeal No.323/2020, dated 12.9.2025,
wherein in paragraph No. 12, it was held as under:
“12. Indubitably in Neeraj Dutta’s case (supra) the
Apex Court held in paragraph No.69 that there is no
conflict in the three judge Bench decisions of this Court in
B.Jayaraj and P.Satyanarayana Murthy with the three
judge Bench decision in M.Narasinga Rao, with regard to
the nature and quality of proof necessary to sustain a
conviction for offences under Section 7 or 13(1)(d)(i) and
(ii) of the Act, when the direct evidence of the
complainant or “primary evidence” of the complainant is
unavailable owing to his death or any other reason. The
position of law when a complainant or prosecution witness
turns “hostile” is also discussed and the observations
made above would accordingly apply in light of Section
154 of the Evidence Act. In view of the aforesaid
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discussion there is no conflict between the judgments in
the aforesaid three cases. Further in Paragraph No.70 the
Apex Court held that in the absence of evidence of the
complainant (direct/primary,oral/documentary evidence)
it is permissible to draw an inferential deduction of
culpability/guilt of a public servant under Section 7 and
13(1)(d) r/w Section 13(2) of the Act based on other
evidence adduced by the prosecution. In paragraph No.68
the Apex Court summarized the discussion. That apart, in
State by Lokayuktha Police’s case (supra) placed by
the learned counsel for the accused also the Apex Court
considered the ingredients for the offences punishable
under Section 7 and 13(1)(d) r/w 13(2) of the PC
Act,1988 and held that demand and acceptance of bribe
are necessary to constitute the said offences. Similarly as
pointed out by the learned counsel for the petitioner in
Aman Bhatia’s case (supra) the Apex court reiterated
the same principles. Thus the legal position as regards to
the essentials to be established to fasten criminal
culpability on an accused are demand and acceptance of
illegal gratification by the accused. To put it otherwise,
proof of demand is sine qua non for the offences to be
established under Sections 7 and 13(1)(d) r/w 13(2) of
the PC Act, 1988 and dehors the proof of demand the
offences under the two Sections could not be established.
Therefore mere acceptance of any amount allegedly by
way of bribe or as undue pecuniary advantage or illegal
gratification or the recovery of the same would not be
sufficient to prove the offences under the two Sections in
the absence of evidence to prove the demand.”
23. In a recent decision of the Apex Court reported in [2026
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INSC 365] in The State of Kerala v. K.A.Abdul Rasheed, the
Apex Court considered the decision [(2023) 4 SCC 731], Neeraj
Dutta v. State (NCT of Delhi) and in paragraph 13 the Apex Court
held as under:
“13. We pause here to notice that the Constitution Bench
in Neeraj Dutta had specifically dealt with the efficacy of the
deposition of hostile witnesses. It referred with approval to Sat
Paul v. Delhi Administration wherein it was held:
“52. From the above conspectus, it emerges
clear that even in a criminal prosecution when a
witness is cross-examined and contradicted with the
leave of the court, by the party calling him, his
evidence cannot, as a matter of law, be treated as
washed off the record altogether. It is for the Judge
of fact to consider in each case whether as a result of
such cross-examination and contradiction, the
witness stands thoroughly discredited or can still be
believed in regard to a part of his testimony. If the
Judge finds that in the process, the credit of the
witness has not been completely shaken, he may,
after reading and considering the evidence of the
witness, as a whole, with due caution and care,
accept, in the light of the other evidence on the
record, that part of his testimony which he finds to
be creditworthy and act upon it. If in a given case,
the whole of the testimony of the witness is
impugned, and in the process, the witness stands
squarely and totally discredited, the Judge should as
a matter of prudence, discard his evidence in toto.”
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24. In the present case, the evidence of PW1, duly
corroborated by PW2 and PW5 (the Dy.S.P.), clearly establishes the
ingredients of the offences punishable under Sections 7 and 13(1)(d)
read with Section 13(2) of the P.C. Act. Accordingly, the learned
Special Judge is justified in holding that the appellant/first accused
had committed the offences punishable under Sections 7 and 13(1)
(d) read with Section 13(2) of the P.C. Act and therefore the
conviction recorded against him does not warrant any interference.
Coming to the sentence, I am inclined to modify the sentence to the
statutory minimum, in consideration of the plea raised by the
learned counsel for the appellant/first accused.
25. In the result:
i) the appeal is allowed in part and the conviction
imposed by the Special Court stands confirmed;
(ii) the appellant/1st accused is sentenced to undergo
rigorous imprisonment for a period of one year and to pay fine
of Rs.10,000/- (Rupees Ten thousand only) and in default of
payment of fine to undergo rigorous imprisonment for a period
of 2 months for the offence punishable under Sections 7 r/w
13(1)(d) r/w 13(2) of the P.C. Act;
(iii) substantive sentence shall run concurrently and
default sentence shall run separately;
(iv) The order granting bail to the appellant/1st accused
and his bail bond stand cancelled with direction to the
appellant/1st accused to surrender before the Special Court
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forthwith to undergo the modified sentence.
Registry is directed to forward a copy of this judgment to the
Special Court concerned for executing the modified sentence.
SD/-
A. BADHARUDEEN
JUDGE
DCS
