Case: A. Subair Vs. State Of Kerala

2. The case of the prosecution was that the appellant was working as a Lower Division Clerk inSection at theTransport Office, Attingal. One Manaf had applied for a driving licence which was issued to him but since that was not issued in book form, he made an application to get it converted into book form. Despite several visits made by Manaf, the appellant did not deliver him the driving licence in book form and he was asked to come time and again. On April 24, 1989, when Manaf visited the office, the appellant informed him that the driving licence in book form was ready. The appellant demanded an amount of Rs. 25/for delivery of the driving licence in book form. Manaf was not prepared to pay the money and he made oral complaint to K. Krishna PillaiDeputy Superintendent working in the Vigilance Unit, Thiruvanathapuram. The oral complaint made by Manaf was reduced in writing (Ext.2 sent a requisition to the Director, State Institute of Education seeking assistance of two persons to act as independent witnesses. K.Krishnan Kuttyand A.S. Abdul Rahimwere deputed accordingly. A1) was drawn after explaining the details of the trap and the characteristics of phenolphthalein powder as well as its use in the trap. Phenolphthalein powder was applied on currency notes of Rs. 20/and Rs. 5/denomination (M.O.1 series).also asked the constable R.Vamanto accompany him.0 and Manaf then proceeded toTransport Office at Attingal, at about 12.30P.M. on April 25, 1989 where the appellant was working.at the directions ofpositioned himself to such a vantage point that no sooner the money (M.O.1 series) was accepted by the appellant and the signal was given, he was able to collect that signal and give further signal toAs soon as Manaf made the signal for the trap party,rushed into the office room where appellant was working and in the presence of2, he recovered money (M.O.1 series) from the shirt pocket of the appellant. The appellant also had his own currency notes (M.O.2 series) in the shirt pocket. P. Thankappan4), R. Rajan6), K. Jayadevanand A. Sahadevanwere also present in the office at that time. A post trap Mahazarwas prepared in the presence of2. A solution of sodium carbonate was prepared in a glass tumbler. The appellants left hand was dipped into solution of sodium carbonate which turned pink. M.O.1 series currency notes as well as one of the M.O.2 series currency notes which was already in the pocket of the appellant answered the phenolphthalein test positively. The left side pocket of shirt also turned pink when sodium carbonate water was applied. Sodium Carbonate bottles after conducting the tests were sealed.3. The appellant was arrested and later on released on bail.

Reasoning: 8. Insofar as Section 13 (1)(d) of the Act is concerned, its essential ingredients are: (i) that he should have been a public servant; (ii) that he should have used corrupt or illegal means or otherwise abused his position as such public servant and (iii) that he should have obtained a valuable thing or pecuniary advantage for himself or for any other person.The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of a valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing or pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established.Pertinently, Manaf (complainant) has not been tendered in evidence by the prosecution.(IO) in his entire deposition has not stated a word as to why Manaf was not examined or why it was not possible to tender him in evidence. In the absence of examination of the complainant, there is no substantive evidence to prove the factum of demand. The High Court held that since the Special Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available in India, there was justification ofof the complainant. We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for theof the complainant, it was not open to the courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the Court.is concerned, he did not fully support the case of prosecution. He deposed that he had an ear attack two months before recording of his deposition and due to the illness and the treatment, he could not recollect the details of the incident. He also stated that he was suffering from depressive psychosis. His evidence does not help the case of the prosecution at all. Thus, the evidence of two independent witnesses does not advance the prosecution case.16. As a matter of fact, the Special Judge as well as the High Court heavily relied upon the deposition ofin support of the prosecution case. We were taken through the evidence ofand, in our considered view, his evidence suffers from serious infirmities. The Special Judge as well as the High court were not even clear about the place wherehas positioned himself. He was not within the hearing range that he could hear the conversation that is said to have taken place between the complainant and the appellant. The defence of the appellant was that the complainant attempted to thrust the currency notes into his pocket.stated that the currency notes (M.O. 1 series) were handed over by the complainant and accepted by the appellant through the counter/window but admittedly the complainant was found inside the office room whenreached. If the amount had already been handed over by the complainant to the appellant through the counter/window, where was an occasion for the complainant to be inside the office room where the appellant was said to be sitting. This casts serious doubt about the prosecution case and, more particularly, the evidence ofthat the amount was handed over by the complainant from outside the window and accepted by the appellant while sitting inside the room.In our view, with such interested evidence ofwho is a police constable and subordinate toit would be not only unsafe but dangerous to rest conviction upon his testimony.19. It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration.20. The High Court drew presumption under Section 20 of the Act for charge under Section 7. Based on that, it was held that the prosecution has proved the offence punishable under Section 7 of the Act.Mere recovery of currency notes (Rs. 20/) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence. It is true that the judgments of the courts below are rendered concurrently but having considered the matter thoughtfully, we find that the High Court as well as the Special Judge committed manifest errors on account of unwarranted inferences. The evidence on record in this case is not sufficient to bring home the guilt of the appellant. The appellant is entitled to the benefit of doubt.