S. Ajith Kumar v. State of Kerala

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K. BABU** **TUESDAY, THE 21[ST] DAY OF JUNE 2022 / 31ST JYAISHTA, 1944 CRL.A NO. 580 OF 2012** **AGAINST THE JUDGMENT IN CC 32/2004 OF ENQUIRY COMR.& SPECIAL JUDGE,KOZHIKODE.** ## **APPELLANT/ACCUSED:** S.AJITH KUMAR, AGED 49 YEARS, S/O.SUKUMARAN, 'AJI NILAYAM', MEZHUVELI VILLAGE, KOZHENCHERRY TALUK, PATHANAMTHITTA DISTRICT, (FORMERLY CIRCLE INSPECTOR OF POLICE SREEKANDAPURAM). BY ADVS. SRI.SASTHAMANGALAM S. AJITHKUMAR SMT.SHIBA M SAMUEL ## **RESPONDENT/COMPLAINANT:** STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY ADV. SMT.REKHA S (SR.P.P) SRI. RAJESH A -SPL.PUBLIC PROSECUTOR THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 21.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **Crl.A.No.580 of 2012** **2** ## 'C.R' ## K.BABU, J. ------------------------------------------- ## Crl.A No. 580 of 2012 --------------------------------------------- Dated this the 21[st] day of June, 2022 ## JUDGMENT This appeal is directed against the judgment dated 30.03.2012 passed by the Enquiry Commissioner and Special Judge, Kozhikode in C.C.No.32 of 2004. The appellant/accused, the then Inspector of Police, Sreekandapuram Police Station, was convicted for the offences punishable under Sections 7 and 13(1) (d) r/w Section 13(2) of the Prevention of Corruption Act, 1988, and sentenced to undergo rigorous imprisonment for a term of two years each and pay a fine of Rs.10,000/- each. ## CASE OF THE PROSECUTION 2. The accused was working as Inspector of Police, Sreekandapuram Police Station during 2003. The defacto complainant (PW1) was running a shop by name 'V.C. Traders' at Chempanthotty, Taliparamba. The accused demanded illegal gratification to the tune of Rs.5,000/- per month in the form of ‘masapady‘ over phone to PW1. The accused accepted a sum of **Crl.A.No.580 of 2012** **3** Rs.7,000/- in two instalments and demanded the balance sum being Rs.3,000/- from the complainant on 11.01.2003 and 16.01.2003. The accused threatened PW1 that he would face problems if the money he demanded was not paid and directed him to pay the amount of Rs.3,000/- on 17.01.2003 at his residence. PW1 filed a complaint before PW7, the Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Kannur on 17.01.2003. After verifying the genuineness of the complaint, FIR No.VC 2/2003 KNR was registered against the accused and PW1 was directed to proceed to the residence of the accused and pay the sum of Rs.3,000/- as demanded by the accused. PW1 reached the residence of the accused on 17.01.2003 at 9.25 p.m., and paid the amount. The accused accepted the same. The Vigilance officials led by PW7 arrested the accused and recovered MO1 series currency notes placed on the table found in the bedroom of the accused. 3. The accused is therefore alleged to have committed the offences punishable under Sections 7 and 13(1)(d) r/w Section 13(2) of the Prevention of Corruption Act, 1988. ## PROSECUTION EVIDENCE 4. The prosecution examined PWs 1 to 8 and proved **Crl.A.No.580 of 2012** **4** Exts.P1 to P16 and MOs 1 to 3. 5. Sri.V.C.Sajeev (PW1) is the defacto complainant. PW1 was examined by the prosecution to prove the demand and acceptance of bribe. PW2, Sri.Sojan Jacob, the brother of PW1, was examined to support the case of PW1. 6. Sri.K.Narayanan (PW3) was a Special Tahasildar (ASL), Collectorate, Kannur, who had accompanied the trap team as an independent witness. PW3 was examined to establish the trap proceedings. 7. Sri.Hormis Tharakan (PW4), the then Director General of Police, granted sanction as provided under Section 19 of the Prevention of Corruption Act to prosecute the accused. 8. Sri.K.P.Rajendran (PW5), a neighbour of the accused, was examined to prove the presence of the trap team at the place of occurrence. 9. Sri.C.Balan, the Head Constable who had accompanied PW7, the officer who laid the trap, was examined as PW6. 10. Sri. T.Ramaraj (PW7), Deputy Superintendent of Police, Vigilance and Anti-Corruption Bureau, Kannur, the Trap Laying Officer, seized MO1 series currency notes and arrested the accused. PW7 also conducted a part of the investigation. **Crl.A.No.580 of 2012** **5** 11. Sri.M.Kamalakshan (PW8), Inspector of Vigilance and Anti-Corruption Bureau, Kasaragod, completed the investigation and submitted final report. ## DEFENCE CASE 12. The accused took charge as the Inspector of Police, Sreekandapuram Police Station, on 22.10.2002. PW1 had called him over phone on so many occasions for granting permission to meet him. Initially, he responded that there was no necessity to meet him. When PW1 repeatedly requested to meet him, he granted permission. On 17.01.2003, the accused reached his residence at 8.30 p.m. After some time, Appukuttan (DW10), a nearby shop owner, who used to bring food to him, came there. Thereafter, the accused went to the bathroom. After some time the calling bell rang. He asked DW10 to ascertain who rang the bell. The accused also came to the hall. It was Sri.V.C.Sajeev (PW1) who rang the bell. The accused asked him to sit in the bedroom. Thereafter, the accused went to the adjacent room for wearing shirt. He had a conversation with PW1, who requested him not to seize his vehicles and give direction to the policemen not to harass him. The accused responded that if he happened to detect any offence he would seize the vehicle. PW1 went out of **Crl.A.No.580 of 2012** **6** the house. DW10 closed the door. The accused heard some noise from outside and saw some persons pushing the door, which had been closed by DW10. The accused went to the kitchen area. By that time, three persons reached near him and introduced themselves as members of the Vigilance team. The accused accompanied them to the hall. There were about 10 to 15 persons. They asked him about the person who had come to the house. The accused replied that it was PW1. They asked the accused whether he had received any amount from him. He responded that he had not received any money. They told him that his hands had to be dipped in Sodium Carbonate Solution. Then the hands of the accused were dipped in Sodium Carbonate Solution. There was no colour change. The hands of the Deputy Superintendent of Police (PW7) and some persons who had accompanied him were also dipped in the Sodium Carbonate Solution. At that time one person brought some currency notes stating that those were recovered from the bedroom. The accused was directed to sign in the documents prepared as per the instructions of PW7. He had not read out the documents to the accused. He was arrested by PW7 at 1.30 a.m. Some persons had maintained enmity towards the accused pursuant to the **Crl.A.No.580 of 2012** **7** registration of cases against them. The accused happened to be a witness in an election petition challenging the election of Sri.Joseph M.Puthuserry, a former MLA. The election petition was decided against the former MLA. Thereafter, Sri.Joseph.M.Puthuserry, had been maintaining enmity towards him. PW1, is a supporter of Kerala Congress party. The accused was falsely implicated in the crime due to extraneous reasons. 13. DWs 1 to 11 were examined and Exts.D1 to D18 were marked on the side of the defence. The accused gave evidence as DW11. 14. The Trial Court convicted the accused holding that the prosecution had succeeded in proving demand and acceptance of bribe. ## SUBMISSIONS: 15. The learned counsel for the appellant/accused, Sri.Sasthamangalam S. Ajithkumar, challenged the impugned judgment of conviction contending that there is no legal evidence to establish demand and acceptance. The learned counsel contended that PW1, the defacto complainant is not a wholly reliable witness, and therefore, his evidence cannot be accepted without corroboration. The learned counsel further contended **Crl.A.No.580 of 2012** **8** that the presence of PW2, the brother of the accused, and PW6, a Head Constable, is doubtful in view of the fact that they had not signed in Ext.P2, pre-trap mahazar, and Ext.P3, post-trap mahazar (seizure mahazar). It is submitted that there is no corroboration in Exts.P2 and P3 to establish the presence of PW2 and PW6. 16. The learned counsel for the appellant/accused relied on the following circumstances to contend that the seizure is doubtful:- - (a) Even when the phenolphthalein test in respect of the hand of the accused turned negative, the Trap Laying Officer failed to recover the 'mundu/dothi' worn by the accused at the time of trap, the bark of the rubber tree on which the accused allegedly rubbed his hand and the scrapings from the portion of the table where MO1 currency notes were allegedly placed and produce before the Court with a request to send them to the Chemical Examiner for analysis. - (b) Exhibit D4 series would show that the trap **Crl.A.No.580 of 2012** **9** party proceeded even before the registration of the FIR. - (c) There was no reason for bringing a massive police team to assist PW7. - (d) Though the prosecution alleged that the accused had counted the notes immediately after the same were placed on the table, the phenolphthalein test turned negative. - (e) The evidence of PW1 that he placed MO1 currency notes on the table as directed by the accused and the accused counted the notes immediately after he left the room is not believable. - (f) PW7, the Trap Laying Officer, continued the investigation even after the SP of police requested him to hand over the investigation to another officer. 17. The learned counsel for the appellant, relying on the various rules contained in the Vigilance and Anti-Corruption Bureau Manual (for short 'Vigilance Manual'), submitted that most of the relevant rules were violated by the Trap Laying Officer leading to **Crl.A.No.580 of 2012** **10** the trap and the subsequent proceedings being vitiated. 18. The learned Special Public Prosecutor, Sri.Rajesh A., countered and submitted that the prosecution could well establish the demand and acceptance of bribe by the accused. The learned Special Public Prosecutor, relying on various judicial precedents, contended that violation of the rules in the Vigilance Manual by the Trap Laying team would not vitiate the trap. The learned Special Public Prosecutor contended that the prosecution has succeeded in establishing the factum of demand and acceptance by the evidence of PWs 1, 2, 3, 6 and 7 corroborated by Exts.P1 to P16 and MOs 1 to 3. 19. The learned Special Public Prosecutor submitted that the oral evidence of PW1 alone is sufficient to establish the demand and acceptance, as there is nothing to doubt his credibility. The learned Special Public Prosecutor further contended that there is admission on the side of the accused, in the cross-examination of PW1, to the effect that MO1 series currency notes were placed on the table. The learned Special Public Prosecutor submitted that chemical examination of the phenolphthalein found on MO1 series and the Sodium Carbonate solution is not mandatory to establish the acceptance **Crl.A.No.580 of 2012** **11** ## as alleged by the prosecution. 20. The learned Special Public Prosecutor further contended that the minor discrepancies in the oral evidence of PWs 1, 2 and 6 are insufficient to render them untrustworthy. It is further contended that as the prosecution could succeed in proving demand and acceptance, the presumption under Section 20 of the Prevention of Corruption Act would come into play, and therefore, the impugned judgment of conviction and sentence requires no interference. ## - CONSIDERATION: 21. The learned counsel for the appellant has taken me to the various rules in the Vigilance Manual to contend that the various procedures adopted by the Trap Laying Officer commencing from the stage of demonstration were in violation of the Manual. 22. The learned Special Public Prosecutor contended that violation of the rules in the Vigilance Manual would not in any way vitiate the trap. 23. It is trite that the guidelines given as per the Vigilance Manual are only directory being administrative directions. Any omission on the part of the Investigating Officer in strictly **Crl.A.No.580 of 2012** **12** complying with those administrative guidelines would not in any way vitiate the trap. 24. The Vigilance Manual is not a Statute and has not been enacted by the legislature. It is a set of administrative orders issued for internal guidelines of the police officials concerned. The instructions in the Manual are only directory. Mere noncompliance with the instructions in the Manual which are issued only for the guidance of detecting or Investigating Officers cannot be a ground for acquittal. {Vide: Santhosh T.A. and Another v. State of Kerala [ILR 2018 (1) Kerala 291], Lalita Kumari v. Govt. of U.P. & Others (AIR 2014 SC 187) Gopalan V. State of Kerala and Thankachan v. Circle inspector of Excise [1989 (2) KLT 316]}. Therefore, the contention that non-compliance with the guidelines in the Manual vitiated the trap itself cannot be sustained. 25. The learned counsel for the appellant relying on Vijayakumar N. v. State of Tamil Nadu (2021 KHC 6049)= [2021 (3) SCC 687] and Moni Shankar v. Union of India and another (2008 KHC 4399)= [2008 (3) SCC 484], further contended that the guidelines issued through the Vigilance Manual are safeguards provided to avoid false implication of a person, and therefore, the **Crl.A.No.580 of 2012** **13** procedures laid down could not have been given a complete goby. The learned counsel argued that the guidelines are in the form of checks and balances given as a protection to the accused from false implication and non-compliance with the guidelines would cause prejudice to the accused. 26. Whether non-compliance with the rules in the Vigilance Manual would cause prejudice to the accused or affect the credibility of a witness depends on the facts of a particular case. 27. I will come to the question whether the non-compliance of the guidelines in the Manual had caused prejudice to the appellant/accused in the later part of the judgment. 28. To bring home the offences alleged, the prosecution has to establish demand and acceptance of bribe, being the twin requirements. 29. The prosecution relied on the oral evidence of PWs 1 and 2 to establish demand. PW1, the defacto complainant, gave evidence that he was running a business in hill-produce. As soon as the accused took charge as the Inspector of Police, Sreekandapuram Police Station, he wanted him to pay money in the form of ‘masapady‘. According to PW1, the accused demanded Rs.5,000/- per month. The accused repeatedly rang him up and **Crl.A.No.580 of 2012** **14** wanted him to pay the amount demanded. He initially gave Rs.5,000/- to the accused and thereafter, gave a sum of Rs.2,000/on 24.12.2002. When he paid Rs.2,000/-, the accused demanded the balance sum of Rs.3,000/-. Subsequently, the accused talked to PW1 over phone on 11.01.2003 and 16.01.2003 and demanded the balance sum of Rs.3,000/- and directed him to bring the amount on 17.01.2003 at his residence. He filed Ext.P1 complaint to the Vigilance thereafter. To corroborate the oral evidence of PW1, the prosecution examined his brother (PW2). PW2 had no direct knowledge regarding the demand allegedly made by the accused to PW1. PW2 also accompanied PW1 while lodging Ext.P1 complaint to PW7. PW2 was with PW1 at the time when MO1 notes were given to the accused. 30. The defence challenges the prosecution version of the demand spoken to by PW1. The case of PW1 is that he had paid Rs.7,000/- to the accused on two occasions. The accused demanded the balance amount on 11.01.2003 and 16.01.2003. When the accused called him over phone on 16.01.2003 PW1 agreed to pay the amount on 17.01.2003. In Ext.P1, PW1 had not stated that the accused demanded money on 16.01.2003. He had also not stated the dates on which the sum of Rs.7,000/- was **Crl.A.No.580 of 2012** **15** paid in two instalments and also the place where he handed over the amount to the accused. PW1 specifically stated that the sum of Rs.7,000/- was given to the accused on two occasions at the residence of the accused. This version was also not narrated in Ext.P1 FIS. The evidence regarding the payment of the sum of Rs.7,000/- on two occasions by PW1 was duly proved to be an omission amounting to contradiction as provided in the Explanation under Sec.162 Cr.P.C. Therefore, the evidence of PW1 on the factum of demand is not wholly reliable. PW2 has only hearsay evidence regarding the payment. The solitary witness to prove the demand is PW1. When his evidence is not wholly reliable, as held in **Vadivelu Thevar v. State of Madras** (AIR 1957 SC 614), corroboration is the rule which is lacking in this case. The sole testimony of the complainant, who is the interested witness, cannot be relied upon without having corroboration with the independent evidence {Vide: **Panna Damodar Rathi v. State of Maharashtra** [(1979) 4 SCC 526] and **Ayyasami v. State of Tamil Nadu** [(1992) 1 SCC 304]}. 31. According to PW1, on 17.01.2003 at 9.25 p.m., as per the instructions of the trap laying party, he reached the residence **Crl.A.No.580 of 2012** **16** of the accused. He entered into the hall of the building. He was taken to the bedroom where a table was placed. After a conversation, the accused asked PW1 if he had brought the money. PW1 was directed to place MO1 currency notes on the table. PW2, his brother, was also with him. Soon after PW1 placed the money, PW2 left the room and came out of the house and gave indication to the trap laying party that the amount was paid. PW1 added that when he came out of the room he could see the accused counting MO1 currency notes with his left hand. 32. The learned counsel for the appellant/accused contended that the case of PW1 is not believable in view of the fact that the phenolphthalein test turned negative. The learned counsel also contended that if the accused had counted the notes as pleaded by PW1, the phenolphthalein test would have turned positive. 33. In the present case, admittedly, the phenolphthalein test in respect of the hand of the accused turned negative. The case of the prosecution is that the accused tried to escape from the room after realising that the Vigilance team had reached there. He went out of the house through the back door and he was found rubbing his left hand on the bark of a rubber tree. He **Crl.A.No.580 of 2012** **17** was apprehended by the policemen who assisted PW7 and while he was brought to the hall of the building, he was rubbing his left hand on the ‘mundu’ (Dhoti) he had worn. The definite case of the prosecution is that MO1 currency notes were placed by PW1 on the table in the bedroom and the accused had counted the notes immediately after the same were placed by PW1. The consistent case of the prosecution is that the accused had rubbed his left hand on the bark of a rubber tree and on the dhoti he had worn. When the phenolphthalein test turned negative, the Trap Laying Officer could have collected the scrapings from the portion of the table on which MO1 currency notes were allegedly placed. He could have seized the ‘mundu’ worn by the accused and collected the pieces of bark of the rubber tree. The Trap Laying Officer could have at least recovered the ‘mundu’ and subjected the same to phenolphthalein test. These pieces of evidence were available there at the scene of occurrence before the Trap Laying Officer, who was a Senior Deputy Superintendent of Police. He could have otherwise sprinkled the Sodium Carbonate solution on the part of the table where the MO1 currency notes were placed. When these pieces of evidence were available before the Trap Laying Officer, the omission on his part in collecting those pieces of evidence **Crl.A.No.580 of 2012** **18** would draw an adverse inference against the prosecution regarding its case that currency notes were placed on the table and the accused had counted the same. The inevitable consequence of this omission is that the prosecution failed to establish that the currency notes were placed by PW1 on the table as directed by the accused. 34. In the context of the failure of the Trap Laying Officer to collect the 'best evidence', Rule 97 of the Vigilance Manual, which requires the Trap Laying Officer to dip the clothes containing the specks of the phenolphthalein powder in Sodium Carbonate solution, becomes relevant. 35. If the Trap Laying Officer had followed Rule 97, this Court could have formed a concrete opinion as to the genuineness of the allegation that the accused had accepted MO1 series currency notes. Therefore, the omission on the part of the Trap Laying Officer in collecting the 'best evidence' which was readily available ought to lead to an adverse inference. The prosecution case on that aspect is, therefore, doubtful. 36. The learned Special Public Prosecutor, relying on a suggestion made by the defence counsel while cross-examining **Crl.A.No.580 of 2012** **19** PW1, contended that there is admission to the effect that MO1 series notes were placed on the table by PW1. While PW1 was examined in cross, the defence counsel suggested to the effect that he had placed the currency notes on the table without the knowledge of the accused. 37. The learned defence counsel contended that the suggestion on the part of the defence counsel is not an admission as defined in Section 17 of the Indian Evidence Act, 1872. 38. As per Section 17 of the Evidence Act, a statement which suggests any inference as to any “fact in issue” or “relevant fact”, becomes an admission. In the present case, the suggestion was that PW1 had placed the notes on the table without the knowledge of the accused. The “relevant fact“ or “fact in issue” in the present case is the placing of currency notes with the knowledge of the accused. Therefore, the suggestion projected by the learned Special Public Prosecutor is in no way an admission as defined in Sec.17 of the Act. 39. Now, coming to the credibility of the evidence of PW2, the brother of PW1. PW2 was examined by the prosecution to prove the acceptance of currency notes by the accused. PW6 was **Crl.A.No.580 of 2012** **20** examined to prove the alleged recovery. 40. The learned defence counsel relying on Rule 102 of the Vigilance Manual contended that the presence of PWs 2 and 6 is doubtful. Rule 102 reads thus: “102. A pre-trap mahazar should be prepared in the office, in the presence of the two witnesses, incorporating the details like denominations and the serial numbers of the currency notes, treating of the bribe money with phenolphthalein powder, demonstration of the phenolphthalein test and the identity of the officer who had applied the powder on the notes. If any independent witness accompanies the complainant this fact should also be incorporated in the mahazar. The mahazar should be read over to the witnesses and the complainant and it should be got signed by them. That the mahazar was read over to them should also be mentioned in the mahazar. The officer who applied the powder and the officer who recorded the F.I Statement and registered the FIR should also sign the mahazar.” 41. Rule 102 directs that if any independent witness accompanies the complainant, the same should be incorporated in the pre-trap mahazar (Ext.P2) and the witness shall sign on it. Exhibit P2 pre-trap mahazar does not say the presence of PW2 and PW6 nor their signatures are therein. 42. The learned defence counsel contended that PW2 and PW6 were subsequently incorporated to fill up the lacuna in the prosecution evidence. 43. If the Trap Laying Officer had strictly followed the **Crl.A.No.580 of 2012** **21** directions in Rule 102, this doubt would not have arisen and the Court could have accepted the prosecution case regarding the presence of these witnesses as pleaded by the prosecution without any shadow of doubt. PWs 2 and 6 had also not signed in Ext.P3 recovery mahazar. Therefore, the presence of PW2 and PW6 in the scene during the trap proceedings is doubtful. 44. The samples were forwarded to the Court by the Trap Laying Officer only on 20.01.2003, as is evident from Ext.P9 list of properties. It is relevant to note that Ext.P9 was even prepared on 20.01.2003. PW7 has not offered any satisfactory explanation for the delay in sending the sample to the Court. This also casts doubt on the prosecution case regarding the recovery of MO1 series from the residence of the accused. 45. Yet another aspect that requires consideration is that PW7, the Trap Laying Officer, has a case that there was a slight colour change in the Sodium Carbonate solution after dipping the left hand of the accused, which was not perceivable in the night. If the Trap Laying Officer had such a doubt, he should have taken steps to send the Sodium Carbonate solution for chemical examination. As the prosecution failed to subject the solution for **Crl.A.No.580 of 2012** **22** chemical examination, the evidence of PW7 that there was a slight colour change in the solution when the left hand of the accused was dipped, cannot be accepted. Rule 120 of the Vigilance Manual gets significance in this regard. Rule 120 reads thus: “120. The sealed bottles containing the samples should be sent to the Special Judge's Court as expeditiously as possible with a request that the samples should be sent to the Chemical Examiner for report as to the presence of phenolphthalein powder in the solution.” 46. Rule 120 directs the Trap Laying Officer to forward the sample as expeditiously as possible to the Court with the request that the same should be sent to the Chemical Examiner for a report as to the presence of phenolphthalein powder in the solution. 47. The alleged recovery of MO1 series notes was not effected based on the disclosure statement of the accused as mandated in Section 27 of the Evidence Act. The case of the Trap Laying Officer, as recorded in Ext.P3 recovery mahazar, is that MO1 series notes were recovered from the table found in the bedroom of the accused as shown by the accused. 48. The learned defence counsel contended that in the absence of any disclosure statement as provided in Section 27 of **Crl.A.No.580 of 2012** **23** the Evidence Act, the recovery effected by PW7 as per Ext.P3 has no sanctity. 49. Mere violation of the Rules in the Vigilance Manual, as mentioned earlier, would not vitiate the trap proceedings or form ground for acquittal of an accused. However, the relevance of the compliance of rules in the Manual is that the procedures laid down therein would act as safeguards to the accused. 50. In **Moni Shankar's case** (supra), the appellant therein was a Railway employee who had obtained bribe from a passenger. It was contended therein that the violation of the mandatory instructions and guidelines contained in the Vigilance Manual vitiated the departmental proceedings initiated against the employee by the Railway authority. The Apex Court held that though non-adherence of the mandatory instructions and guidelines in the Vigilance Manual would not vitiate the departmental proceedings, the procedures laid down in the Vigilance Manual could not have been given a complete go-by as they work as safeguards to avoid false implication. In **Vijayakumar's case** (supra) a three Judge Bench of the Apex Court, while considering a series of discrepancies in the evidence **Crl.A.No.580 of 2012** **24** of the prosecution and non-compliance of Clause (1) of Rule 47 of the Tamilnadu Vigilance Manual, whereby the Trap Laying Officer was required to take a statement of the accused after completion of the phenolphthalein test, held that the accused is entitled to the benefit of doubt. 51. In the present case, if the Trap Laying Officer had followed the requirements in the Vigilance Manual, it would have worked as safeguards for the accused and ruled out the possibility of any false implication as alleged by the defence. The violation of the rules of the Vigilance Manual therefore affected the credibility of the evidence of PW2, PW6 and PW7. 52. The learned defence counsel further contended that the trap based on Ext.P1 complaint is doubtful in view of the evidence that some members of the team proceeded to the place of occurrence much before the registration of FIR. According to the prosecution, PW1 lodged the complaint at 4.00 p.m on 17.01.2003. FIR was registered at 4.00 p.m on 17.01.2003. Exhibit D4 series, the copies of the vehicle diary proved through DW4, shows that Sri. M.Balakrishnan, DYSP, VACB, Kozhikode, a member of the Trap team, proceeded to Sreekandapuram at 3.30 **Crl.A.No.580 of 2012** **25** p.m. This also casts doubt on the genesis of the prosecution case. 53. The proof of demand of illegal gratification is the gravamen of the offences under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in the absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder {Vide: **P.Satyanarayana Murthy v. State of Andhra Pradesh** [(2015) 10 SCC 152], **K.Shanthamma v. The State of Telangana** [(2022) 4 SCC 574], **B.Jayaraj v. State of Andhra Pradesh** [(2014) 13 SCC 55] and **Rajesh Gupta v. State through Central Bureau of Investigation** (MANU/SC/0527/2022)}. 54. In the instant case, the prosecution has not succeeded in proving the demand beyond reasonable doubt. The prosecution **Crl.A.No.580 of 2012** **26** also failed to establish the voluntary acceptance of bribe by the appellant. The appellant/accused is entitled to the benefit of doubt. He is found not guilty of the offences alleged. He is acquitted of the offences. He is set at liberty. The appeal is allowed as above. Sd/- K.BABU JUDGE VPK+KAS **Crl.A.No.580 of 2012** **27** ## **APPENDIX OF CRL.A 580/2012** PETITIONER ANNEXURES Annexure A1 TRUE COPY OF THE ONLINE PASSPORT APPLICATION RECEIPT DATED 07.08.2012. Annexure 1 A TRUE COPY OF THE ORDER IN CRL.M.A NO.6369/12 IN CRL.A 580/20012 OF THIS HON'BLE COURT Annexure 2 THE CERTIFICATE ISSUED BY THE ENQUIRY COMMISSIONER AND SPECIAL JUDGE DATED 19.01.2014 IN C.C NO.32/2004