R Nagaraju v. State By Lokayukta Police

complainant along with his friend Sri. B. Gurusiddaiah went to Police Station for offering surety, as the Officer was not there, he approached the appellant - accused and the appellant - accused directed them to get the matter compromised and threatened that in case they do not get it settled, he will fix his family members in other crimes and also demanded Rs.5,000/- as illegal gratification. In this regard, the complainant has lodged a complaint with 5 Lokayuktha Police on 21.11.2008, which was registered in crime No. 15/2008. C. Then the Investigating Officer has secured two panchas and drawn Entrustment Panchanana and got produced Rs.2,000/- to be paid to the appellant - accused and then along with his staff and panchas laid the trap and on the same day between 06.10 pm and 06.15 pm, in front of the Police Station when the complainant approached the appellant - accused along with shadow witness Sri. Venkatesh, it is alleged that the appellant - accused has demanded and accepted illegal gratification of Rs.2,000/- from the complainant and at that time, the appellant - accused was trapped red handed. It is also alleged that the amount was also recovered from the custody of accused and his hand wash was taken as well as his pant pocket was taken which had shown positive to the Phenolphthalein Test and the Investigating Officer has drawn a trap panchanama. It is also alleged that, thereafter 6 the Investigating Officer seized certain records from the Police Station and after necessary sanction and after completing the investigation submitted the charge sheet against the appellant - accused.

3. The trial Court framed charge for offence under Section 7 and Section 13(1)(d) and 13(2) of the Act. In order to prove the charge, the prosecution examined P.W.1 to P.W.10 and got marked Ex.P.1 to Ex.P.29 and M.O.1 to M.O.11. Statement of the appellant - accused came to be recorded under Section 313 of Cr.P.C. The appellant - accused got himself examined as one of the defence witnesses, i.e., D.W.1 and also got examined one witness as D.W.2 and got marked Ex.D.6 to Ex.D.16. Ex.D.1 to Ex.D.5 came to be marked in the cross-examination of prosecution witnesses. The trial Court after hearing arguments formulated points for consideration and after appreciating the evidence on record convicted the appellant - accused for the offence as noted supra and also passed 7 order on sentence as noted supra. The said judgment of conviction and order of sentence has been challenged in this appeal.

4. Heard learned counsel for the appellant - accused and learned Spl.PP for respondent.

5. Learned counsel for appellant - accused would contend that the appellant - accused was not in a position to give official favour to P.W.1 and it is the officer who has to take the bail bond. If the appellant - accused had refused to take bail bond, there were other officers in the Police Station and P.W.1 – complainant could have approached them for executing the bail bond. He contends that getting executed bail bond is not the work of appellant - accused as he is working as a Police Constable. He contends that it was not the intention of P.W.1 – complainant to execute the bail bond but somehow to trap the appellant - accused as appellant - accused is related to one Sri. Bhaskar who was 8 the complainant in crime No. 74/2008 and he insisted P.W.1 – complainant to compromise the matter. He contends, that P.W.1 in his evidence has stated that he has been falsely implicated in crime No. 74/2008 and appellant - accused forced him to compromise the said case and therefore, he approached the Lokayuktha and filed a complaint. P.W.1 has also admitted in his cross- examination that he was upset as the appellant - accused forced him to compromise the case. He further contends that the complaint filed by the said Sri. Bhaskar is at Ex.P.7 and the statement of witnesses in the said crime No. 74/2008 which are at Ex.P.10 to Ex.p.18 indicate serious allegations against P.W.1 – complainant. The appellant - accused had an opportunity to demand bribe or arrest P.W.1 when he visited him instead he advised him to apply for grant of anticipatory bail. It is the case of prosecution that P.W.8 who is a surety to P.W.2 went with him to the Police Station to execute bail bond, but, P.W.8 has not 9 supported the case of the prosecution in that regard and as he is a retired Principal of college his version before the Court cannot be discarded. It is his contention that the prosecution in order to establish the charge has to prove the demand of bribe and also acceptance. He contends that P.W.1 switched on the tape recorder after sometime of meeting the appellant - accused and it is the deliberate act of the appellant - accused to hide the conversation between him and appellant - accused. Said deliberate act of P.W.1 is only to implicate appellant - accused as he is the relative of Sri. Bhaskar who has lodged the complaint. He contends that on perusal of Ex.P.2 – Entrustment Mahazar and evidence of P.W.1, P.W.2 and P.W.5, it is clear that the spot is inside the Police Station, but, mahazar is drawn showing the spot as outside the Police Station. In Ex.P.2 – Entrustment Mahazar it is stated that tainted money is kept in the shirt pocket of P.W.1 but evidence of P.W.1, P.W.2 and P.W.5 show that when P.W.1 took out from his pocket 10 envelop containing cash and he gave it to the appellant - accused. Said aspect clearly indicates that P.W.1 has handled tainted currency notes after Ex.P.2 – Entrustment Mahazar and before reaching the spot which is the Police Station. The appellant - accused has received the said envelop as P.W.1 told that it contained a letter and not as bribe. Except P.W.1 there are no other witnesses to speak about the demand of bribe. P.W.5 – shadow panch has stated that he was not able to hear the conversation due to traffic sound. Handing over of the envelop said to be containing tainted currency notes by P.W.1 to the appellant - accused is by deceitful means stating that it contained a letter and appellant - accused received the same as if it contained a letter and he did not receive it as bribe. As per the evidence of P.W.1 one person accompanied P.W.1 who went inside the Police Station and that person has not been examined by the Investigating Officer and therefore, adverse inference is required to be drawn. The appellant – 11 accused, immediately after the incident, gave a statement in writing stating that he received the envelop as if it contained a letter. That itself establishes that he has not received the cover as bribe money. The appellant - accused has rebutted the presumption raised under Section 20 of the Act. The prosecution has not proved the foundational facts to raise presumption under Section 20 of the Act. The prosecution has to prove foundational facts, i.e., position of the appellant - accused to make official favour, demand and acceptance of bribe. Learned counsel for appellant – accused placed reliance on the decision of the Hon’ble Apex Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) rendered on 17.03.2023. On these grounds, learned counsel for appellant - accused prays to allow the appeal and acquit the appellant - accused.

6. Per contra, learned Spl.P.P. appearing for the respondent would contend that the very fact that P.W.1 stated that he stood at gunman point itself show that he 12 was standing outside the Police Station. It corroborates with the evidence of P.W.5 who has stated that the spot is outside the Police Station compound. He contends that the evidence of P.W.1 and P.W.5 establish the demand of bribe. The appellant - accused was incharge of the Police Station and has demanded bribe for executing the bail bond and settlement of his case. He contends that P.W.8 might have not supported the case of the prosecution due to time gap and due to his age. There is no cross-examination regarding pre-trap, post-trap mahazar and FSL report. The appellant - accused has not rebutted the presumption raised under Section 20 of the Act. The said one person has stated that P.W.1 may be the person in the Police Station and therefore there is no question of examination by the Investigating Officer. The appellant - accused has not given any explanation at the time of recording of his statement under Section 313 of Cr.P.C. He contends that pendency of work is not the criteria. There is minor discrepancy with regard to 13 envelop handed over by P.W.1 to appellant - accused and on perusal of the FSL report it is clear that hand wash of appellant - accused turned pink and wash contains Phenolphthalein powder. Learned Spl.PP has relied upon the following decisions.

1. “Neeraj Dutta V. State (Govt. of N.C.T. of Delhi), AIR 2023 SC 330.

2. Phula Singh V. State of Himachal Pradesh, AIR 2014 SC 1256.

3. M. Narsinga Rao v. State of A.P., AIR 2001 SC

4. State of A.P. V. C Uma Maheswara Rao and another, AIR 2004 SC 2042.

5. C.M Sharma V. State of A.P. TH.I.P, AIR 2011 SC

6. C.I. Emden Appellant V. State of U.P., AIR 1960 SC 548.

7. V.D.Jhingan V. State of U.P., AIR 1966 SC

1762. 14

7. Having heard the learned counsel for the parties and on perusal of the record the following point arises for my consideration. “Whether the trial Court erred in convicting the appellant - accused for offence under Section 7 and Section 13(2) of the P.C. Act?”

8. My answer to the above question is in the affirmative for the following reasons. 8A. The Constitution Bench of the Hon’ble Apex Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Dehli), reported in AIR 2023 SC 330 has considered what are the requirements to raise presumption under Section 20 of the Act and has held as under: (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 15 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) -------------------- (g) Insofar 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) (i) and (ii) of the Act. (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 latter discretionary in nature.” 16 8B. The Hon’ble Apex Court by referring to the judgment of the Constitution Bench rendered in the case of Neeraj Dutta (supra) has observed in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in 2023 Live Law (SC) 211 as under: “11. Even the issue of presumption under Section 20 of the PC Act has been answered by the Constitution Bench by holding that only on proof of the facts in issue, Section 20 mandates the Court to raise a presumption that illegal gratification was for the purpose of motive or reward as mentioned in Section 7 (as it existed prior to the amendment of 2018). In fact, the Constitution Bench has approved two decisions by the benches of three Hon'ble Judges in the cases of B. Jayaraj and P. Satyanarayana Murthy. There is another decision of a three Judges' bench in the case of N. Vijayakumar v. State of Tamil Nadu, which follows the view taken in the cases of B. Jayaraj' and P. Satyanarayana Murthy. In paragraph 9 of the decision in the case of B. Jayaraj, this Court has dealt with the presumption under Section 20 of the PC Act. In paragraph 9 this Court held thus: 17 "9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1) (d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent." (emphasis added) The presumption under Section 20 can be invoked only when the two basic facts required to be proved under Section 7, are proved. The said two basic facts are 'demand' and 'acceptance' of gratification. The presumption under Section 20 is that unless the contrary is proved, the acceptance of gratification 18 shall be presumed to be for a motive or reward, as contemplated by Section 7. It means that once the basic facts of the demand of illegal gratification and acceptance thereof are proved, unless the contrary are proved, the Court will have to presume that the gratification was demanded and accepted as a motive or reward as contemplated by Section 7. However, this presumption is rebuttable. Even on the basis of the preponderance of probability, the accused can rebut the presumption.

12. In the case of N.Vijayakumar, another bench of three Hon’ble Judges dealt with the issue of presumption under Section 20 and the degree of proof required to establish the offences punishable under Section 7 and clauses (i) and (ii) Section 13(1)(d) read with Section 13(2) of PC Act. In paragraph 26, the bench held thus: "26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779: (2009) 2 SCC (Cri) 1] and in B. 19 Jayaraj v. State of A.P. [B. Jayaraj v. State of A.P., (2014) 13 SCC 55: (2014) 5 SCC (Crl) 543] In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court." (emphasis added) Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt. 20

14. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand.” 21 8C. Learned counsel for respondent, with regard to presumption under Section 20 of the P.C. Act has relied upon a decision of the Hon’ble Apex Court in the case of M. Narasinga Rao Vs. State of A.P. reported in AIR 2001 SC 318 wherein it is held as under: “17. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in Law of Evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.

18. For the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the Court can treat the presumption as tantamounting to proof. However, as a caution of 22 prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra (1998) 7 SCC 337 : (1998 AIR SCW 3182: AIR 1998 SC 3258: 1998 Cri LJ 4592). "A presumption can be drawn only from facts and not from other presumptions - by a process of probable and logical reasoning."

19. Illustration (a) to Section 114 of the Evidence Act says that the Court may presume that "a man who is in the possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession." That illustration can be profitably be used in the present context as well when prosecution brought reliable materials that appellant’s pocket contained phenolphthalein smeared currency notes for Rs.500/- when he was searched by PW-7 DSP of the Anti Corruption Bureau. That by itself may not or need not necessarily lead to a presumption that he accepted that amount from somebody else either stuffing those currency notes into his pocket or stealthily inserting the same therein. But the other 23 circumstances which have been proved in this case and those preceding and succeeding the searching out of the tainted currency notes, are relevant and useful to help the Court to draw a factual presumption that appellant had willingly received the currency notes.” 8D. In the judgment relied upon the by the learned counsel for respondent in the case of State of A.P. Vs. C. Uma Maheswara Rao and another reported in AIR 2004 SC 2042 with regard to presumption the Court has observed thus: “12. Before proceeding further, we may point out that the expressions “may presume” and “shall presume” are defined in Section 4 of the Indian Evidence Act, 1872 (in short the ‘Evidence Act'). The presumptions falling under the former category are compendiously known as "factual presumptions" or "discretionary presumptions" and those falling under the latter as "legal presumptions" or "compulsory presumptions". When the expression "shall be presumed" is employed in Section 20(1) of the Act, it must have the same import of compulsion. 24

13. When the sub-section deals with legal presumption, it is to be understood as terrorem ie in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act. (See M. Narsinga Rao v. State of A.P., 2001 (1) SCC 691).

14. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton, L.J. in Hawkins v. Powells Tillery Steam Coal Co. Ltd. (1911 (1) KB 988) observed as follows: 25 "Proof does not mean proof mathematical demonstration, because that is impossible, it must mean such evidence as would induce a reasonable man to come to a particular conclusion."

15. The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the Court to presume the existence of any fact which it thinks likely to have happened. In that process the Court may have regard to common course of natural events, human conduct, public or private business vis-a-vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.

16. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not 26 conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled.

17. For the purpose of reaching one conclusion the Court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted the Court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani v. State of Maharashtra (1998 (7) SCC 337) "A presumption can be drawn only from facts- and not from other presumptions – by a process of probable and logical reasoning.”

9. In the light of the above it is required to consider whether the prosecution has established the 27 foundational facts to raise presumption under Section 20 of the Act. Said foundational facts are; a. whether the appellant - accused was in a position to make official favour; b. demand and acceptance of bribe; c. acceptance of money knowing it to be bribe.

10. P.W.1 is the complainant and he had filed complaint against one Sri. Bhaskar and others which came to be registered in crime No. 73/2008 and said Sri. Bhaskar, inturn, had also filed counter complaint against P.W.1 and his family members which came to be registered in crime No. 74/2008. As per the evidence of P.W.1 when he met the appellant - accused on 30.09.2008 to furnish his wound certificate the appellant - accused told him regarding registration of complaint of Sri. Bhaskar in crime No. 74/2008 and asked him to get bail in that case or otherwise he will be arrested. It is further evidence of P.W.1 that 28 when he went and met the appellant - accused on

17.11.2008 to execute bail bond and furnish surety as per the order of the Sessions Court, Mysuru, at that time, the appellant - accused told him to enter into compromise and also demanded Rs.5,000/-. According to P.W.1, on

17.11.2008 he was accompanied by P.W.8 who had agreed to stand as a surety to him. It is alleged that appellant - accused did not take the bond and accepted the surety and therefore, they returned. It is the case of P.W.1 that, at that time on 17.11.2008, the appellant - accused asked him to compromise the matter and demanded Rs.5,000/-. P.W.8 is a friend of P.W.1 and he has denied having gone along with P.W.1 to Ashokapuram Police Station, Mysuru, to stand as surety to P.W.1. P.W.8 is a retired Principal of Government First Grade College. Therefore, this testimony of P.W.1 regarding demand of bribe by appellant - accused is not corroborated by P.W.8 who had accompanied P.W.1 on 17.11.2008. 29

11. The appellant - accused is working as a Police Constable in Ashokapuram Police Station, Mysuru and is not the Police Officer who is having authority to accept the bail bond and surety bond in compliance of the order of Courts. There were other Police officers in Ashokapuram Police Station, Mysuru, namely, Sri. Chinnaswamy to whom P.W.1 had showed his bail order and the said Sri. Chinnaswamy was the Police Inspector. P.W.1 did not approach any of the Police Officers in Ashokapuram Police Station, Mysuru to accept his bail bond and surety.

12. P.W.1 in his cross-examination has admitted that as appellant - accused insisted him to compromise the matter with the family members of his son-in-law, it had caused him annoyance against appellant - accused and in that regard he had talked with his friend and thereafter decided to file complaint to the Lokayuktha. 30

13. P.W.1 even the cross-examination has admitted that prior to the filing of the complaint by him to the Lokayuktha Police he had executed bond in the Court. Therefore, P.W.1 is not upset because of non-acceptance of bail bond and surety bond by the appellant - accused but, it is because that the appellant - accused insisted P.W.1 to compromise the matter with the family members of his son- in-law. If the appellant - accused insisted P.W.1 to compromise the matter, there is no question of he demanding bribe for the said purpose. P.W.1 found that the appellant - accused was favouring Sri. Bhaskar who is the brother of his son-in-law and to take grudge against the appellant - accused he had filed the complaint to the Lokayuktha. P.W.1 even admitted that the appellant - accused is favouring the said Sri. Bhaskar and he was upset as the appellant - accused was in favour of the said Sri. Bhaskar and as the appellant - accused insisted him to compromise the matter. 31

14. Therefore, it appears, that prior to filing of the complaint there is no demand of bribe by the appellant - accused and it is the created story of P.W.1 against the appellant - accused as he found appellant - accused favouring Sri. Bhaskar and insisting him to compromise the matter and it caused him annoyance. Therefore, the prosecution has not established that there is demand of bribe by the appellant - accused prior to filing of complaint by P.W.1.

15. Even on the date of trap P.W.1 has stated that he met the appellant - accused in the Police Station. The appellant - accused asked him whether he had brought the money and he asked him to give money and he gave currency notes kept in his pocket which were smeared with Phenolphthalein powder and appellant - accused took them with the right hand and kept in his right side pant pocket. P.W.5 is a shadow panch who had accompanied P.W.1 when P.W.1 met appellant - accused in the Police Station. P.W.5 32 has not stated any demand of bribe by the appellant - accused with P.W.1. He has stated that he was standing at 10 feet distance and he could not hear the conversation between P.W.1 and appellant - accused. Therefore, even demand at the time of trap is only stated by P.W.1 and it is not corroborated by P.W.5. Therefore, the prosecution has not proved the demand of bribe by the appellant - accused with P.W.1 on the date of trap.

16. The Entrustment Mahazar – Ex.P.2 and evidence of panch to the Entrustment Mahazar, i.e., P.W.2 and P.W.5 will show the currency notes smeared with Phenolphthalein powder were kept in the shirt pocket of P.W.1. P.W.1 in his cross-examination has stated that currency notes were kept in a small white envelop which was kept in his pocket and he has given said envelop to the appellant - accused. Considering the said aspect, learned counsel for appellant - accused argued that when the tainted currency notes were kept in the shirt pocket of 33 P.W.1, he had handled the tainted currency notes and kept them in an envelop. Therefore, he has tampered the currency notes smeared with Phenolphthalein powder.

17. P.W.1 gave envelop said to contain the tainted currency notes to appellant - accused. It is the defence of appellant - accused that he received the said envelop when P.W.1 gave said envelop stating that there is some letter to be looked into by him and he has not received the said envelop as a bribe. Said contention of the appellant - accused can be fortified in his statement given in writing immediately after the trap which is at Ex.P.20. In Ex.P.20 it is stated that P.W.1 and another person came to the Police Station when appellant - accused was on duty and asked him to come out as they intended to talk to him and when he came out and when he was talking in front of Police Station, at that time, P.W.1 stated that there is some letter with regard some matter and he has to read it and to help them and gave envelop and he attempted to return the said 34 envelop, at that time, the Lokayuktha Police caught him. In view of grudge by P.W.1 against the appellant - accused as he was insisting for compromise of the case and counter case filed by P.W.1 and Sri. Bhaskar and tampering the tainted currency notes kept in his pocket by keeping in an envelop indicates that P.W.1 intended to take revenge against the appellant - accused. Said aspect also goes to show that the appellant - accused has not received the said envelop containing tainted currency notes in it as bribe but as a letter. Therefore, said aspect will not establish that the appellant - accused has accepted the bribe amount.

18. Ex.P.25 is the sketch of the scene of offence and on perusal of the same it is clear that giving of the bribe and accepting the bribe have taken place outside the compound and gate of Ashokapuram Police Station, Mysuru. In Ex.P.25, P.W.1, P.W.2, P.W.5 and position of the Investigating Officer and his staff are shown outside the compound and gate of Ashokapuram Police Station, Mysuru. 35 Even as per P.W.2 – panch and P.W.5 – shadow panch the spot is outside the Police Station. Even in Ex.P.21 – rough sketch prepared by the Investigating Officer the spot of the incident is shown as outside the compound of Ashokapuram Police Station, Mysuru. P.W.1 has stated in his chief examination that the spot is inside the Police Station. Therefore, there is contradiction in the evidence of P.W.1 with regard to the spot as per the prosecution case and evidence of P.W.2, P.W.5 and P.W.10.

19. P.W.5 in his chief examination has stated that along with P.W.1 one more person went inside the Police Station and he did not know his name and P.W.1 and that another person who came with P.W.1 went upstairs and thereafter P.W.1 and that another person and appellant - accused came out and all the three persons went near the Police Station compound and gate. Said another person is supposed to be the eye witness to the trap, i.e, demand and acceptance. The Investigating Officer has not enquired 36 with regard to that another person who had accompanied P.W.1 when he met the appellant - accused person. Therefore, adverse inference requires to be drawn with regard to non-examination of that another person who had accompanied P.W.1 when he met the appellant - accused at Ashokapuram Police Station, Mysuru.

20. P.W.1 has stated that he did not have the phone number of appellant - accused and he has not contacted the appellant - accused over phone. The appellant - accused who has been examined as D.W.1 has stated that P.W.1 and his acquainted person Sri. Puttaswamy had contacted him over phone and in order to establish the same he has produced the call details of the phone numbers of himself, P.W.1 and said Sri. Puttaswamy which are at Ex.D.8 to Ex.D.10. Ex.D.8 to Ex.D.10 contains the details of phone calls made by P.W.1 to appellant – accused, phone call by D.W.2 to the appellant - accused on the date of trap and also on the previous dates. Therefore, said evidence of 37 P.W.1 that he is not having the phone number of the appellant - accused and he and Sri. Puttaswamy – P.W.2 have not contacted the appellant - accused over phone appears to be false. It appears, that P.W.1 with an intention to take revenge against the appellant - accused had stated all these aspects in his evidence. All these above aspects would go to show that the prosecution has not established the foundational facts to attract presumption under Section 20 of the Act. The appellant - accused by the cross- examination of the witnesses and examining himself as D.W.1 and examining another witness as D.W.2 and his statement - Ex.P.20 has rebutted the presumption under Section 20 of the Act. The appellant - accused has not received envelop given by P.W.1 to him knowing it to be bribe. The trial Court without considering all these aspects has erred in convicting the appellant - accused for the offence under Sections 7 and 13(2) of the Act. In the result, the following; 38 O R D E R I. The appeal is allowed. II. The impugned judgment of conviction dated

22.06.2013 and order of sentence dated

24.06.2013 passed in Spl.C. No. 105/2010 by the III Additional District and Sessions and special Judge, Mysuru is set aside. III. The appellant - accused is acquitted for offence under Sections 7 and 13(2) of the P.C. Act. Sd/- JUDGE LRS.