Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 1 IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 13TH DAY OF JULY, 2026 BEFORE THE HON'BLE MR. JUSTICE G BASAVARAJA CRIMINAL APPEAL NO.1696 OF 2022 c/w CRIMINAL APPEAL NO.1737 OF 2022 IN CRL.APPEAL NO.1696/2022 BETWEEN: NAGARAJU D M S/O LATE MAHALINGAPPA AGED ABOUT 38 YEARS WORKING AS PANCHAYAT DEVELOPMENT OFFICER CHINNENAHALLI GRAMA PANCHAYATH, SIRA TALUK. PERMANENT RESIDENT OF BANAGERE VILLAGE, HOLALKERE TALUK, CHITRADURGA DISTRICT. ...APPELLANT (BY SRI. SHARATH S. GOWDA, ADV.) AND: THE STATE OF KARNATAKA BY ANTI-CORRUPTION BUREAU TUMAKURU, REPRESENTED BY: THE STATE PUBLIC PROSECUTOR, HIGH COURT OF KARNATAKA, BANGALORE-560001. …RESPONDENT (BY SRI. B. B. PATIL, ADV.) Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 2 THIS CRL.A IS FILED U/S 374(2) CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 20.09.2022 PASSED BY THE VII ADDITIONAL SESSIONS AND SPL. JUDGE, TUMAKURU IN SPL.CASE NO.332/2019, CONVICTING THE APPELLANT/ACCUSED NO.1 FOR THE OFFENCE P/U/S 7(a) OF P.C ACT. IN CRL.APPEAL NO.1737/2022 BETWEEN: SRI. SHIVANNA S/O VENKATAPPA AGED ABOUT 44 YEARS, BILL COLLECTOR, CHINNENAHALLI GRAMA PANCHAYAT, SIRA TALUK, TUMAKURU R/AT DASARAHALLI VILLAGE, KALLAMBELLA HOBLI, SIRA TALUK - 572125 TUMAKURU DISTRICT. ...APPELLANT (BY SRI. NISHIT KUMAR SHETTY, ADV.) AND: STATE OF KARNATAKA REP. BY POLICE INSPECTOR, ANTI CORRUPTION BUREAU POLICE TUMAKURU DISTRICT. …RESPONDENT (BY SRI. B B PATIL, ADV.) THIS CRL.A IS FILED U/S 374(2) CR.PC PRAYING TO SET ASIDE THE JUDGMENT OF CONVICTION AND SENTENCE DATED 20.09.2022 PASSED BY THE VII ADDITIONAL SESSIONS AND SPECIAL JUDGE, TUMAKURU IN SPL.CASE NO.332/2019 AND Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 3 THE APPELLANT/ACCUSED NO.2 IS CONVICTED FOR THE OFFENCE P/U/S 7(a), 7A AND 12 OF P.C ACT. THESE APPEALS HAVING BEEN HEARD AND RESERVED FOR JUDGMENT ON 05.06.2026 AND COMING ON FOR "PRONOUNCEMENT OF ORDERS" THIS DAY, THE COURT,DELIVERED THE FOLLOWING: CORAM: HON'BLE MR. JUSTICE G BASAVARAJA CAV JUDGMENT The Criminal Appeal No.1696 of 2022 preferred by accused No.1; and the Criminal Appeal No.1737 of 2022 preferred by accused No.2, challenging the Judgment of conviction and order on sentence dated 28th September, 2022 passed in Special Case No.332 of 2019 by the VII Additional District & Sessions Judge and Special Court for Trial of cases relating to Prevention of Corruption Act, Tumakuru (for short hereinafter referred to as “the trial Court”). 2. For the sake of convenience, the parties herein are referred to as per their status and rank before the trial Court. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 4 FACTS OF THE CASE 3. The prosecution case, in brief, is that the Police Inspector, Anti-Corruption Bureau, Tumakuru, filed a charge- sheet against Accused 1 and 2 for the offences punishable under Sections 7(a) of the Prevention of Corruption Act, 1988, as amended by Act 16 of 2018 (for short “the PC Act”). At the relevant point of time, accused No.1 was serving as the Panchayat Development Officer and accused No.2 as the Bill Collector of Chinnahalli Grama Panchayat, Sira Taluk, both being public servants. According to the prosecution, CW1-Narasimha Murthy N., had submitted an application seeking issuance of a No Objection Certificate (NOC) for establishing a poultry farm in Survey No.23 of Kalenahalli Village, belonging to his aunt (CW4). It is alleged that on 20th September, 2018, when CW1 approached accused No.2 regarding the said application, accused No.2 demanded illegal gratification of ₹10,000/- on behalf of accused No.1. Since CW1 expressed his inability to pay the amount demanded, he allegedly met accused No.1, who reduced Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 5 the demand to ₹5,000/- and directed him to pay ₹2,000/- as advance to accused No.2 and the balance amount subsequently. 4. It is further alleged that CW1 paid ₹2,000/- to accused No.2 as instructed, and that accused No.2 also demanded a portion of the bribe for himself. Thereafter, on 01st October, 2018, pursuant to a trap arranged by the Anti- Corruption Bureau, it is alleged that accused No.1 instructed CW1 to pay the balance amount of ₹3,000/- to accused No.2, who received the said amount knowing it to be illegal gratification. On completion of the investigation, a charge-sheet came to be filed against both the accused. Upon receipt of the charge-sheet, the learned Special Judge took cognizance of the offences under Sections 7(a), 7A and 12 of PC Act on the ground that the allegations also make out offences under Section 7A and Section 12 of PC Act. Presence of accused was secured, who were enlarged on bail. After hearing the learned Public Prosecutor and the learned counsel for the accused, charges were framed against accused No.1 for the offence punishable under Section 7(a) of PC Act and against Accused No.2 for the Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 6 offences punishable under Sections 7(a), 7A and 12 of the said Act. The substance of the accusation was read over and explained to the accused, who pleaded not guilty and claimed to be tried. In support of its case, the prosecution examined 25 witnesses as PW1 to PW25, marked 28 documents as Exhibits P1 to P28, and identified 15 Material Objects as MOs.1 to 15. After closure of the prosecution side evidence, the statements of the accused were recorded under Section 313 of the Code of Criminal Procedure, 1973, wherein the accused denied all the incriminating circumstances appearing against them. In defence, the accused examined DW-1 and produced Exhibits D1 to D11. 5. Upon appreciation of the oral and documentary evidence, the learned Special Judge, by the impugned Judgment, convicted accused No.1 for the offence punishable under Section 7(a) of the PC Act and sentenced him to undergo rigorous imprisonment for four years and to pay a fine of ₹30,000/-, with a default sentence of simple imprisonment for six months. 6. Accused No.2 was convicted for the offences punishable under Sections 7(a), 7A and 12 of the PC Act and Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 7 sentenced to undergo rigorous imprisonment for four years for each of the said offences, together with a fine of ₹10,000/- for each offence, with a default sentence of simple imprisonment for six months. 7. Aggrieved by the Judgment of conviction and the consequential order on sentence, the accused have preferred the present appeals. Submission on behalf of Accused No.1/appellant in Criminal Appeal No.1696 of 2022 8. Sri Sharath S. Gowda, learned counsel appearing for the appellant/Accused No.1 in Criminal Appeal No.1696 of 2022, submitted that the impugned Judgment of conviction and order of sentence suffers from serious legal and factual infirmities and are contrary to the settled principles governing prosecutions under the PC Act. It was contended that the learned Special Judge failed to appreciate the evidence in its proper perspective and ignored the material irregularities and infirmities in the prosecution case. The appreciation of evidence is stated to be mechanical, without due consideration of the Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 8 material contradictions and discrepancies emerging from the testimony of the prosecution witnesses. 9. Learned counsel submitted that PW- 1/complainant admitted to having recorded the alleged demand for illegal gratification on a mobile phone prior to the trap proceedings. However, the Trial Court itself discarded the said recording on account of several deficiencies. Once the electronic recording allegedly evidencing the prior demand stood discarded, the prosecution failed to establish the foundational fact of demand of illegal gratification prior to the registration of the complaint. 10. It was further contended that, notwithstanding the rejection of the aforesaid recording, the Trial Court erroneously relied upon the electronic recordings relating to the complaint and the trap proceedings. The electronic evidence was neither collected nor produced before the Court in accordance with the mandatory provisions governing admissibility of electronic records. Consequently, the alleged demand of illegal gratification prior to the complaint remained unproved. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 9 11. Learned counsel further submitted that though the prosecution obtained an opinion from the Forensic Science Laboratory, there is no material on record to establish that PW4, who tendered the expert opinion, was a recognised Examiner of Electronic Evidence within the meaning of Section 45A of the Indian Evidence Act, 1872 read with Section 79A of the Information Technology Act, 2000. In the absence of any notification or material demonstrating such recognition, the opinion of PW4 and the DVD (MO.15) relied upon by the prosecution could not have been treated as admissible expert evidence. 12. It was next contended that, in the absence of legally admissible evidence establishing the prior demand for illegal gratification, the prosecution case rests solely upon the testimony of the complainant. The evidence of the complainant, being that of an interested and partisan witness, requires careful scrutiny and cannot, in the facts of the present case, form the sole basis for conviction without independent corroboration. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 10 13. With regard to the alleged acceptance and recovery of the tainted currency notes (MO7), learned counsel submitted that the burden initially lies upon the prosecution to establish beyond reasonable doubt the demand and acceptance of illegal gratification. Only upon discharge of such burden does the statutory presumption arise. In the present case, no tainted amount was recovered from the possession of accused No.1. Therefore, the prosecution was required to establish, by cogent and reliable evidence, that the amount recovered from accused No.2 was received on behalf of accused No.1. Such nexus has not been established. 14. It was further submitted that the learned Special Judge failed to appreciate that the absence of recovery of tainted currency from the possession of accused No.1 materially weakens the prosecution case. It is well settled that the demand of illegal gratification must be proved by clear, cogent and convincing evidence and that acceptance of illegal gratification must be established like any other fact in a criminal Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 11 trial. Where the evidence lacks credibility and does not inspire confidence, conviction cannot be sustained. 15. Learned counsel further submitted that the evidence adduced by the prosecution does not inspire confidence and falls short of the standard of proof required in a criminal prosecution. It is a settled principle of criminal jurisprudence that where two views are reasonably possible on the evidence, the view favourable to the accused must prevail. The prosecution has failed to prove beyond reasonable doubt the demand, acceptance and recovery of illegal gratification, as well as the pendency of any official work before accused No.1. The prosecution has also failed to establish that accused No.1 had intentionally delayed the complainant's work so as to demand illegal gratification. Consequently, the impugned Judgment warrants interference and accused No.1 is entitled to an order of acquittal. 16. Learned counsel further submitted that accused No.2 had offered a satisfactory explanation for receiving the tainted currency at the time of the alleged trap. It was Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 12 contended that accused No.1 had also produced documentary evidence to demonstrate that a sum of ₹2,000/- was payable to the Grama Panchayat towards the prescribed fee for issuance of the NOC. The defence case is that the complainant paid the said amount as the requisite fee and immediately gave the pre- arranged signal to the trap team before accused No.2 could issue the official receipt. 17. It was further submitted that, despite the above explanation and the supporting documentary evidence, the learned Special Judge rejected the defence without assigning cogent reasons. The Trial Court also failed to appreciate the vague, inconsistent and unreliable testimony of the prosecution witnesses, who made repeated attempts to improve and tailor the prosecution case. 18. Learned counsel further submitted that PW-2, the shadow/panch witness, was expected to act as an independent, impartial and vigilant witness to the trap proceedings. However, during cross-examination, PW2 expressed inability to recollect several material aspects of the Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 13 incident and gave evasive answers. In contrast, the examination-in-chief contained a detailed narration suggestive of a tutored or rehearsed version of events. The marked inconsistency between the examination-in-chief and the cross- examination seriously affects the credibility of the witness. 19. It was further contended that the evidence of PW2 and PW3 clearly indicates that signatures were affixed on the mahazars and other documents prepared by the investigating agency without verifying their contents or witnessing the entire procedure. Such evidence demonstrates that the panch witnesses did not independently observe the proceedings as required under law. The mechanical association of the panch witnesses with the trap proceedings has, according to the defence, vitiated the fairness of the investigation and rendered the prosecution case unreliable. 20. Learned counsel further submitted that the Investigating Officer (PW-1) failed to conduct any preliminary enquiry before registration of the First Information Report. The records disclose that the complaint was received at 3.15 pm on Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 14 27th September, 2018, the First Information Report was registered immediately thereafter, by 3.45 pm the FIR had already been despatched to the jurisdictional Court. The sequence of events, according to the defence, clearly establishes that no preliminary verification or enquiry was undertaken prior to registration of the case, despite the legal requirement governing corruption cases. 21. It was contended that the omission to conduct a preliminary enquiry caused serious prejudice to the accused and resulted in an investigation directed solely towards substantiating the allegations contained in the complaint. The learned Special Judge, it was argued, proceeded to record the conviction on assumptions and presumptions rather than on legally admissible and reliable evidence. Learned counsel finally submitted that there is no cogent evidence on record to establish the essential ingredients of the offences alleged against Accused No.1. The prosecution has failed to prove the demand, acceptance and recovery of illegal gratification beyond reasonable doubt. Consequently, the impugned Judgment of Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 15 conviction and order of sentence are liable to be set aside. On all these grounds he submitted that the appeal deserves to be allowed. 22. In support of his arguments, learned counsel for accused No.1, relied upon the following decisions: 1. P. SATHYANARAYA MURTHY v. DISTRICT INSPECTOR OF POLICE, STATE OF ANDHRA PRADESH AND ANOTHER - (2015)10 SCC 152; 2. B. JAYRAJ v. STATE OF ANDHRA PRADESH - (2014)13 SCC 55; 3. STATE OF LOKAYUKTA POLICE, DAVANAGERE v. C.B. NAGARAJ - 2025 INSC 736; 4. STATE OF KARNATAKA v. SIDARAI LAKSHMAN CHOUGALA AND OTHERS - CRIMINAL APPEAL NO.1006 OF 2010 AND CONNECTED APPEAL DECIDED ON 06.08.2019; 5. VED PRAKASH MAURYA v. STATE OF DELHI 2025:DHC:11149; 6. STATE THROUGH CBI v. DR. ANUP KUMAR SRIVASTAVA - (2017)15 SCC 560; 7. DASHRATH SINGH CHAUHAN v. CBI - (2019)17 SCC 509; 8. R.M. MALKANI v. STATE OF MAHARASHTRA - (1973)1 SCC 471; 9. NILESH DINKAR PARADKAR v. STATE OF MAHARASHTRA - (2011)4 SCC 143. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 16 Submission on behalf of Accused No.2/appellant in Criminal Appeal No.1737 of 2022: 23. The learned counsel would submit that there is absolutely no cogent and reliable evidence to establish the essential ingredient of demand of illegal gratification. In the absence of proof of demand, mere recovery of tainted money, even if assumed, would not be sufficient to sustain the conviction. The Trial Court, without there being legally acceptable evidence, has erroneously presumed the demand and acceptance, which is impermissible in law. The learned counsel has also argued that the prosecution has failed to examine several material witnesses. Out of the seventeen witnesses cited in the charge sheet, as many as twelve witnesses have not been examined including CW4, who is a crucial witness to the alleged transaction. Non-examination of such material witnesses has caused serious prejudice to the defence and has resulted in suppression of best available evidence. This omission goes to the root of the prosecution case and renders the entire case doubtful. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 17 24. It was further contended that Section 12 of the PC Act creates a separate and substantive offence of abetment, distinct from the offence under Section 7A of the said Act. Since the ingredients of the two offences are materially different, sanction for prosecution under Section 7A of the Act cannot, by implication, be treated as sanction for prosecution under Section 12 of the PC Act. In the absence of a specific sanction and evidence establishing the essential ingredients of abetment under Section 12 of the Act, the Trial Court committed a jurisdictional error in adding the charge and recording a conviction for the said offence. In the absence of a valid sanction as contemplated under the Prevention of Corruption Act is a failure of justice, the very prosecution is vitiated, and consequently, the conviction recorded by the Trial Court is liable to be set aside. 25. With regard to the role attributed to accused No.2, it is contended that he is only a subordinate employee working as a Bill Collector and there is no independent evidence to show that he had made any demand for bribe. The Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 18 prosecution has failed to establish any intention or motive on the part of accused No.2 to commit the alleged offence. In the absence of proof of demand by accused No.2, the question of abetment under the provisions of the Prevention of Corruption Act does not arise. The Trial Court has erroneously fastened liability on accused No.2 without there being any legal evidence to support such finding. To substantiate his arguments, he has relied on the following decisions: 1. STATE OF KARNATAKA v. AMEERJAN - (2007)11 SCC 273; 2. CENTRAL BUREAU OF INVESTIGATION v. ASHOK KUMAR AGGARWAL - (2014)14 SCC 295; 3. WRIT PETITION NO.38871 OF 2016 DECIDED ON 05.09.2023 IN K. NARASIMHA MURTHY v. SONDEKOPPA GRAMA PANCHAYAT AND ANOTHER; Submission on behalf of counsel appearing for Lokayukta: 26. On 23rd February, 2026, the respondent Lokayukta has filed written arguments. Learned Counsel for respondent appearing for Lokayukta has reiterated the contents of written arguments and would further submit that the trial Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 19 Court has properly appreciated the evidence in accordance with law and facts and absolutely, there are no grounds to interfere with Judgment of conviction and order on sentence passed against accused 1 & 2. He would submit that once the prosecution proves the acceptance of illegal gratification, the statutory presumption under Section 20 of PC Act, arises. 27. In the present case, recovery of tainted currency notes (MO.7) from the possession of accused No.2, and the positive chemical test, the said presumption operates against the accused. Accused have failed to place any convincing material. For rebuttal of statutory presumption. The defence taken by the accused that the amount paid by complainant is for the payment of fee to the Grama Panchayat is wholly improbable and unsupported by any reliable evidence which is Exhibit D8- Resolution of the Gram Panchayat dated 16th March, 2017 prescribing the fee of ₹2,000/- for issuance of a No Objection Certificate for establishing a poultry farm. This document probabilises the defence that an official fee was payable to the Gram Panchayat. The existence of such a statutory fee renders Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 20 the defence explanation that the amount was received towards official dues reasonably probable and cannot be ignored while appreciating the evidence. The documents relied upon by the defence do not establish that the amount recovered during the trap was towards any lawful payment. Absolutely, there are no materials to interfere with impugned Judgment of conviction and sentence passed by the trial Court. Accordingly, he sought for dismissal of appeals. In support of his contentions, he has relied on the following decisions: 1. DASHARATH v. STATE OF MAHARASTRA - 2025 SCC ONLINE SC 1054; 2. SITA SOREN v. UNION OF INDIA - (2024)5 SCC 629; 3. AMAN BHATIA v. STATE NCT OF DELHI - 2025 SCC Online SC 1013; 4. NEERAJ DUTTA v. STATE (GOVERNMENT OF NCT OF DELHI) - (2023)4 SCC 731; 5. STATE OF MADHYA PRADESH v. JIYALAL - (2009)15 SCC 72; 6. BABARALI MAMADALI SAYED v. STATE OF GUJARAT - 1988 SCC ONLINE GUJ 66; 7. STATE THROUGH INSPECTOR OF POLICE, AP v. K. NARASIMHA CHARI - (2005)8 SCC 364; Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 21 28. Having heard the arguments on both sides and on perusal of materials placed before Court, the following points would arise for my consideration: 1. Whether the impugned judgment of conviction and order on sentence passed by the trial Court suffers from perversity or material illegality, so as to warrant interference by the Court? 2. What order? 29. My answer to the above points are: Point No.1: in the affirmative; Point No.2: as per final order Regarding Point No.1: 30. Before appreciating the evidence on record in a Lokayukta trap cases, it is well known that a trap case involves a systematic evaluation of all relevant factors to establish the offences under the Prevention of Corruption Act, 1988. The first pillar is initial demand, where evidence must clearly show that the public servant demanded a bribe before the trap, which can Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 22 be established through oral testimony, often corroborated by a shadow witness, or by electronic recordings; the second pillar is acceptance, requiring proof that the accused voluntarily received the bribe, typically demonstrated by the phenolphthalein test, which detects handling of the bait money; the third pillar is recovery, where the tainted currency must be recovered from the possession of the accused, supported by a properly drawn and signed mahazar documenting the seizure; and the fourth pillar is, the consideration of procedural and corroborative integrity, which requires that the evidence, including witness testimonies, mahazars, photographs, and chemical tests be consistent, contemporaneous, and procedurally sound, ensuring minor contradictions do not undermine the case of the prosecution. Taken together, these four elements form the foundation for proving demand, acceptance, and recovery of illegal gratification beyond reasonable doubt. Keeping in mind the above mentioned principles, I have meticulously gone through the impugned judgment and entire prosecution papers. Before appreciating the facts thrown through evidence and the Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 23 law, I have to analyze in the background of presumption under Section 20 of the PC Act. The same is extracted below: "Sec. 20: Presumption where public servant accepts any undue advantage– Where, in any trial of an offence punishable under Section 7 or under Section 11, it is proved that a public servant accused of an offence has accepted or obtained or attempted to obtain for himself, or for any other person, any undue advantage from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or attempted to obtain that undue advantage, as a motive or reward under Section 7 for performing or to cause performance of a public duty improperly or dishonestly either by himself or by another public servant or, as the case may be, any undue advantage without consideration or for a consideration which he knows to be inadequate under Section 11." Regarding validity of sanction-Exhibit P13: 31. On perusal of order sheet of the trial Court dated 12th February, 2021, it is seen that the trial Court has passed the order as under: "A.1 and A.2 present. CW.5 examined as PW.3 and Ex.P.12 marked and fully cross-examined and Ex.D.7 to 9 Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 24 marked. Sri V.B.N. for A.1 and Sri H.V.M. for A.2 submits that the prosecution sanction order against A.1 and A.2 can be marked by consent subject to keeping open the question of competency and application of mind by sanctioning authority to be determined on the basis of recitals of sanction orders. The said submission is placed on record and accordingly the sanction order dated.09.04.2019 passed by CEO, Zilla Panchayath against A.1 and A.2 is now marked as Ex.P.13 by consent subject to keeping open the question of competency and application of mind by sanctioning authority to be determined on the basis of recitals of sanction orders. Issue summons to additional witness-Chandrika of FSL, Bengaluru for recording her evidence through VC who is the Scientific Officer who has issued voice analysis report and since her evidence is relevant, although not cited in charge sheet, she is considered as additional witness Under Section 311 of Cr.P.C. Call on.04.03.2021 12/02/2021 VII Addl. District and Sessions Judge, Tumakuru." 32. In paragraphs 26 to 33 of the Judgment, trial Court has discussed as to the validity of sanction order and held that the prosecution has proved beyond reasonable doubt that Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 25 the accused are public servants as on the date of trap and the sanction is obtained by the competent authority. 33. On perusal of the above observation, it is clear that accused have objected the sanction order at Exhibit P13 said to have been obtained by the competent authority. The aforesaid order dated 12th February, 2021 passed by the trial Court, clearly discloses that the accused have not given consent for dispensation of proof of the documents, however, they have given consent only for marking the document. It is settled principle of law that mere marking of document does not dispense the proof. The Supreme Court, way back in the year 1971 itself, laid down the well-settled principle that mere marking of an exhibit does not dispense with its proof. (SAIT TARAJEE KHIMCHAND AND OTHERS v. YELAMARTI SATYAM AND OTHERS reported in AIR 1971 SC 1865). 34. The accused have seriously disputed as to the alleged sanction that the sanctioning authority has not applied its mind before giving sanction. Same is also noted by the trial Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 26 Court in the order dated 12th February, 2021. However, the trial Court has not properly appreciated the evidence on record. 35. The finding recorded by the Trial Court regarding the validity of sanction under Section 19 of PC Act is legally unsustainable and suffers from serious errors in appreciation of both facts and law. The Trial Court has proceeded on the assumption that mere production and marking of the sanction order-Exhibit P13 by consent, is sufficient to hold that a valid sanction has been obtained. This proposition is well-settled by the Supreme Court in the following decisions. 36. In the case of MOHD. IQBAL AHMED v. STATE OF ANDHRA PRADESH reported in (1979)4 SCC 172, the Hon'ble Supreme Court has observed that sanction for prosecution is not an idle formality; the prosecution must prove that the sanctioning authority considered the relevant materials and applied its independent mind. The Court held that sanction is a weapon to protect honest public servants. The prosecution must prove that the sanctioning authority considered the relevant material and applied its independent mind. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 27 37. In the case of STATE OF KARNATAKA v. AMEERJAN reported in (2007)11 SCC 273, the Supreme Court held that the sanctioning authority must apply its mind to the facts of the case and the materials placed before it. A mechanical sanction without due consideration is invalid. 38. In the case of CENTRAL BUREAU OF INVESTIGATION v. ASHOK KUMAR AGGARWAL reported in (2014)14 SCC 295, the Hon'ble Supreme Court reiterated that the sanction order should reflect conscious application of mind, and the authority must examine the entire record before granting sanction. 39. In the case of NANJAPPA v. STATE OF KARNATAKA reported in (2015)14 SCC 186, the Hon'ble Supreme Court held that cognizance taken on the basis of an invalid sanction is unsustainable. A valid sanction is a condition precedent for taking cognizance under Section 19 of the Prevention of Corruption Act, though a fresh prosecution on a valid sanction may be permissible where the defect is curable. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 28 40. In the case on hand, the evidence of the sanctioning authority does not disclose that the entire investigation records were placed before it or that an independent opinion was formed after due application of mind. The sanction order is conspicuously silent regarding the material considered and thus bears the characteristics of a mechanical approval. In view of the law laid down by the Hon'ble Supreme Court in the case of MOHD. IQBAL AHMED; AMEERJAN; ASHOK KUMAR AGGARWAL; and NANJAPPA (supra), the prosecution is vitiated for want of a valid sanction. The approach of the trial Court is contrary to the settled legal position that sanction is a jurisdictional fact which must be affirmatively proved by the prosecution by establishing competency of the authority and due application of mind. 41. In the present case, the prosecution has not examined the sanctioning authority, viz. the Chief Executive Officer of the Zilla Panchayat. In the absence of such examination, there is no evidence on record to show as to what materials were placed before the authority, whether the Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 29 authority had considered the entire record, and whether there was independent application of mind before granting sanction. The non-examination of the sanctioning authority has caused serious prejudice to the defence, as it was deprived of the opportunity to test the validity of the sanction through cross- examination. The Trial Court has failed to appreciate that this omission goes to the root of the prosecution case. 42. The defence had specifically raised a contention that the sanction order refers to statements of witnesses dated 03rd October, 2018, which were not produced before the Court. This discrepancy raises a serious doubt as to whether the sanctioning authority had relied upon materials which were either not part of the charge sheet or not properly verified. Instead of examining this issue in depth, the Trial Court has brushed aside the discrepancy as a mere clerical error. Such an approach is erroneous, as reference to non-existent or unproved material in the sanction order is a clear indication of non- application of mind. The Trial Court has further erred in holding that since the sanction order was marked by consent, the Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 30 defence is precluded from challenging its validity at a later stage. It is well-settled that admission of a document in evidence does not dispense with the requirement of proving its legality and validity. The defence is entitled to contend that the sanction suffers from non-application of mind or is otherwise invalid, even if the document is exhibited without consent. The reasoning of the Trial Court in this regard, is therefore, legally flawed. 43. The Investigating Officer has not placed all the materials before the sanctioning Authority. In this regard, it is appropriate to extract Exhibit P13. The same reads as under: "vÀĪÀÄPÀÆgÀÄf¯Áè ¥ÀAZÁAiÀÄvïPÁAiÀiÁð®AiÀÄzÀ £ÀqÀªÀ½UÀ¼ÀÄ «µÀAiÀÄ: ¥ÀæPÀgÀtzÀDgÉÆævÀ £ËPÀgÀgÁzÀDgÉÆæ-1 ²æà £ÁUÀgÁdÄr.JA. ©£ï ªÀĺÀ°AUÀ¥Àà ©.ºÉZï, ¦.r.N, a£ÉßãÀºÀ½î UÁæªÀÄ ¥ÀAZÁAiÀÄw, ²gÁ vÁ®ÆèPÀÄ, vÀĪÀÄPÀÆgÀÄf¯Éè ªÀÄvÀÄÛDgÉÆæ-2 ²æà ²ªÀtÚ, ©¯ï PÀ¯ÉPÀÖgï, a£ÉßãÀºÀ½î UÁæªÀÄ ¥ÀAZÁAiÀÄw, ²gÁ vÁ®ÆèPÀÄ, vÀĪÀÄPÀÆgÀÄf¯Éè gÀªÀgÀÄUÀ¼À «gÀÄzÀÞzÁR¯ÁzÀ ¥ÀæPÀgÀtzÀ°èC©üAiÉÆÃd£Á ªÀÄAdÆgÁwDzÉñÀ ºÉÆgÀr¸ÀĪÀ §UÉÎ. G¯ÉèÃR: 1. 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Learned counsel appearing for the appellant/Accused No.1 contended that the trap mahazar dated 01st October, 2018 and the explanation furnished by the accused at the time of the trap were not placed before the sanctioning authority while seeking sanction for prosecution. Upon careful Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 34 examination of Exhibit P13, this Court finds considerable force in the said submission. 45. A perusal of the sanction order discloses that neither the trap mahazar nor the explanation offered by the accused formed part of the material placed before the sanctioning authority. There is also no evidence on record to indicate that these documents were subsequently forwarded or considered before according sanction. The Investigating Officer has not offered any explanation for withholding these material documents from the sanctioning authority. Consequently, the sanction appears to have been accorded without consideration of all the relevant materials, thereby casting serious doubt on the validity of the sanction and the application of mind by the competent authority. 46. The Trial Court has also misapplied the principle contained in Section 19(3) of the PC Act by holding that any irregularity in sanction would not vitiate the trial, unless failure of justice is shown. The said principle applies only to minor irregularities, and not to cases where the sanction itself is Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 35 fundamentally defective due to lack of application of mind. Where the sanction is granted mechanically or without proper consideration of relevant materials, it amounts to no sanction in the eye of law, and the question of proving failure of justice does not arise separately. Further, there is absolutely no material on record to show that all relevant documents such as the complaint, pre-trap mahazar, trap proceedings, statements of witnesses, and other evidence collected during investigation were placed before the sanctioning authority. In the absence of such foundational evidence, it cannot be presumed that the authority had arrived at a conscious and informed decision. The trial Court has erred in presuming due application of mind without any supporting evidence. The reliance placed by the trial Court on general observations regarding the need to curb corruption and avoid technical objections is misplaced. While it is true that corruption is a serious offence, the statutory safeguard of prior sanction cannot be diluted on such considerations. The requirement of sanction is intended to protect public servants from frivolous prosecution, and therefore, strict compliance with the mandate of Section 19 of PC Act is essential. In the Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 36 circumstances, it is evident that the prosecution has failed to establish that a valid and legal sanction was obtained prior to taking cognizance of the offence. The sanction order at Exhibit P13 is vitiated by non-application of mind and lack of proper proof. Consequently, the cognizance taken by the Trial Court is rendered invalid, and the conviction based on such defective sanction is liable to be set aside. FAILURE OF THE PROSECUTION TO PROVE DEMAND, PENDENCY OF OFFICIAL WORK AND AUTHORITY OF THE ACCUSED: 47. After meticulously going through the impugned judgment and also the prosecution papers, I have independently re-appreciated the entire oral and documentary evidence available on record in the light of the settled principles governing prosecutions under the Prevention of Corruption Act, 1988. The prosecution is required to establish, beyond reasonable doubt, the foundational facts of demand, acceptance and obtaining of illegal gratification. Only upon proof of these foundational facts, does the statutory presumption under Section 20 of the PC Act would arise. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 37 48. The prosecution case regarding the initial demand rests substantially on the testimony of PW1- Complainant. According to PW1, an amount of ₹2,000/- was allegedly paid on an earlier occasion and the remaining sum of ₹3,000/- was paid during the trap. However, the alleged earlier demand and payment are not supported by any independent witness or other legally admissible evidence. The electronic recording, on which considerable reliance was originally placed by the prosecution, has not been proved in accordance with law. In the absence of compliance with the mandatory requirements governing admissibility of electronic evidence, the alleged recording cannot be relied upon to corroborate the version of PW1 regarding the pre-trap demand. 49. Once the electronic evidence is excluded from consideration, the prosecution case regarding the earlier demand rests solely upon the testimony of the complainant. Though conviction can, in an appropriate case, be based on the testimony of the complainant, such evidence must inspire complete confidence and ordinarily requires careful scrutiny Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 38 where it forms the sole foundation for establishing the demand of illegal gratification. In the present case, no independent material has been produced to establish either the alleged payment of ₹2,000/- or the circumstances under which such payment was allegedly made. 50. Equally significant is the evidence relating to the trap proceedings. The evidence of PW1 and PW2 indicates that it was the complainant who initiated the conversation by informing the accused that the "balance amount" had been brought and by enquiring as to whom it should be handed over. The prosecution has not produced convincing evidence to establish that either accused No.1 or accused No.2 reiterated or made any fresh demand for illegal gratification at the time of the trap. On the contrary, the evidence of the Investigating Officer also indicates that the complainant had been instructed to hand over the tainted currency only if a demand was made. In the absence of such demand, the mere passing of currency notes (MO.7) from the complainant to accused No.2 cannot, by itself, establish voluntary acceptance of illegal gratification. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 39 51. Much emphasis has been placed by the prosecution on the expression "balance amount" occurring in the evidence of PW1. In the considered opinion of this Court, the said expression, by itself, is incapable of proving either the existence of an earlier demand or an earlier payment of illegal gratification. The prosecution cannot substitute proof of demand with an inference drawn from the use of a particular expression. The foundational fact of demand must be proved by substantive and reliable evidence and not by conjecture or semantic interpretation. 52. The prosecution has also relied upon the recovery of tainted currency from accused No.2 and the positive phenolphthalein test. These circumstances undoubtedly establish recovery. However, recovery by itself is not synonymous with proof of illegal gratification. The defence has consistently maintained, from the earliest point of time, including in the explanations furnished immediately after the trap, that the amount represented payment towards house-tax arrears and NOC fee. Whether such explanation ultimately succeeds or fails, Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 40 it nevertheless constitutes a defence which requires examination on the touchstone of preponderance of probabilities and cannot be rejected merely because the prosecution has established recovery. 53. The written explanations furnished immediately after the trap (Exhibits P16 and P17) assume significance, as they constitute the earliest version of the defence. The explanation that the amount represented statutory dues has remained substantially consistent throughout the proceedings. The prosecution has not produced any material demonstrating that the explanation was inherently impossible or wholly incompatible with the surrounding circumstances. The burden cast upon the accused to rebut the statutory presumption is not one of proving the defence beyond reasonable doubt, but merely of establishing a probable explanation. 54. Another important circumstance which merits consideration is, the evidence relating to the alleged official work. The prosecution was required to establish not merely demand and acceptance, but also, the alleged gratification was Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 41 demanded in relation to an official act capable of being performed by the accused. The evidence on record raises substantial doubt regarding the authority of the Gram Panchayat to issue an NOC in respect of the land in question. The evidence of DW1 indicates that the Panchayat ordinarily exercises jurisdiction only in respect of Gramathana properties. If the Panchayat itself lacked authority over the proposed activity, the prosecution was required to establish, by cogent evidence, the precise nature of the official work alleged to be pending before the accused. Such evidence is conspicuously absent. 55. Equally, the alleged application for issuance of NOC (Exhibit P1) does not bear any inward seal, acknowledgment, office endorsement or other contemporaneous record indicating that it had been officially received or processed by the Gram Panchayat. No register or official record evidencing pendency of the application has been produced. The absence of such primary records assumes significance when the prosecution case itself is founded upon the allegation that illegal gratification was demanded for processing the application. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 42 56. The prosecution has also failed to establish, by satisfactory evidence, the precise role of accused No.1 in relation to the alleged official work. Admittedly, no tainted currency was recovered from accused No.1. Apart from the testimony of PW1 regarding the earlier demand, there is no independent evidence establishing that accused No.2 received the amount on behalf of accused No.1 pursuant to any prior arrangement. The necessary link connecting the alleged recovery from accused No.2 with the culpability of accused No.1 has therefore not been established beyond reasonable doubt. 57. The legal position governing such cases is well- settled. The Hon'ble Supreme Court in the decisions of B. JAYARAJ v. STATE OF ANDHRA PRADESH reported in (2014)13 SCC 55, and in the case of P. SATYANARAYANA MURTHY v. DISTRICT INSPECTOR OF POLICE reported in (2015)10 SCC 152, has categorically held that proof of demand of illegal gratification is the sine qua non for conviction under the Prevention of Corruption Act and that mere recovery of tainted currency cannot sustain a conviction in the absence of proof of demand. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 43 Likewise, in KRISHAN CHANDER v. STATE OF DELHI reported in (2016)3 SCC 108, it has been held that the presumption under Section 20 of the PC Act arises only after the prosecution establishes the foundational facts and that the accused may rebut such presumption on the standard of preponderance of probabilities. 58. Applying the aforesaid principles to the evidence on record, this Court is of the considered opinion that the prosecution has failed to establish, beyond reasonable doubt, the foundational facts of prior demand and voluntary acceptance of illegal gratification. The evidence regarding the alleged earlier demand remains uncorroborated, the demand at the time of the trap has not been satisfactorily proved, the pendency of official work and the authority of the accused have not been established by reliable documentary evidence, and the defence explanation cannot be said to be wholly improbable. Consequently, the statutory presumption under Section 20 PC of the Prevention of Corruption Act could not have been invoked. The conviction founded upon such evidence, therefore, cannot be sustained. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 44 59. The Investigating Officer has submitted the charge sheet against the accused 1 and 2 for commission of offence under section 7(a) of PC Act. Without assigning any reasons trial Court took cognizance for commission of offence under Sections 7(a), 7A and 12 of PC Act. In this regard, the trial Court has passed order on 09th August, 2019 as under: "Perused the records. At this stage, there are sufficient allegations that, accused No.1 being PDO and accused No.2 being Bill Collector and thereby both being public servants, when CW1 approached them seeking NOC for setting up poultry farm, initially accused No.21 demanded bribe of Rs.10,000/- on behalf of accused No.1 while accused No.1 demanded bribe of Rs.5,000/- and on the date of trap on 01.10.2018, on the direct in of accused No.1, accused No.2 received the tainted amount of Rs.3,000/- from CW1 towards bribe. Along with charge sheet, the prosecution sanction order against accused No.1 and 2 in respect of offence under Section 7(a) of PC Act is produced. Although charge sheet is filed only for offence under Section 7(a) of PC Act, the allegations also make out offences under Section 7-A and Section 12 of PC Act. Be it noted that, no sanction is required to take Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 45 cognizance in respect of said offences since Section 7A and 12 do not find mention in Section 19 of PC Act. Hence, cognizance is taken of the offences under Section 7(a), 7-A and 12 of Prevention of Corruption act, 1988. Register as Special Case. Issue summons to the Accused No.1 and 2 returnable by 30.08.2019." 60. Before framing of charge, on behalf of accused No.1 Interlocutory Application was filed for discharge, same was rejected by the trial Court on 31st December, 2019. The trial Court has framed the charges against the accused 1 and 2 for commission of offence under Section 7(a) of PC Act and further, the trial Court has framed the charges against accused No.2 for commission of offence under Section 7-A and Section 12 of PC Act. The prosecution has not obtained sanction for the commission of offence under Section 7-A and Section 12 of PC Act. The trial Court has not assigned any reasons for framing of charges for the commission of offence under Section 7-A and Section 12 of PC Act, though the said offences are not shown in Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 46 the charge sheet. Since the prosecution has not obtained sanction for prosecuting the accused under Section 7-A and Section 12 of PC Act against accused No.2, the charges framed against No.2 for offence under Sections 7-A and 12 of PC Act is not sustainable under law. Additionally, the prosecution has not placed any cogent, clinching and convincing evidence to convict the accused for the offence under Sections 7-A and 12 of PC Act. Hence, the conviction passed against accused No.2 is also not sustainable under law. 61. The prosecution evidence is riddled with material inconsistencies regarding the dates of submission of the application, alleged prior payments, and the role of accused No.2. The non-examination of material witness CW4 and other crucial witnesses, amounts to suppression of best evidence, thereby causing serious prejudice to the defence. The Trial Court failed to draw the adverse inference arising from these omissions and erroneously relied upon unreliable evidence to record the conviction. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 47 62. It is, therefore, manifest that the Trial Court erred in presuming demand and acceptance in the absence of legally admissible proof, and in affixing criminal liability on accused No.2 without appreciating the role of a subordinate in the context of the allegations. In light of the above, the conviction and sentence imposed upon accused No.2 cannot be sustained. 63. In the present trap case, the conviction recorded by the trial Court is legally unsustainable as it proceeds on conjectures rather than on proof of the essential ingredients of the offence, viz. demand and voluntary acceptance of illegal gratification. It is a settled principle of law that “demand is sine qua non” for constituting an offence under the Prevention of Corruption Act, and in the absence of clear and cogent evidence of demand, mere recovery of tainted money is wholly insufficient to sustain conviction. This principle flows from the fundamental maxim “Actus non facitreum nisi mens sit rea” — the act alone does not make a person guilty unless accompanied by a guilty mind. In the present case, the prosecution has utterly failed to Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 48 establish the guilty intention behind the alleged receipt of money, and the trial Court has erroneously inferred demand merely from the use of the expression “balance amount,” which is nothing but a speculative inference unsupported by legally admissible evidence. In the present case, the prosecution heavily relies on the expression “balance amount” to infer prior payment of bribe. However, such an inference is legally impermissible. In rural administration, the term “balance” is equally consistent with part payment of legitimate dues such as taxes or fees. Where two views are possible, the one favourable to the accused must be adopted (“in dubio pro reo”). The burden on the accused under Section 20 of the Prevention of Corruption Act is only to offer a probable explanation on the touchstone of preponderance of probabilities, as reiterated in N. RAJA KANTHAM v. STATE reported in 2011(1) SCC (Criminal) 1045 and in the case of T. SUBRAMANIAN v. STATE OF TAMIL NADU reported in 2006(1) SCC 401. Once the accused offers a plausible explanation that the amount was received towards official dues, the statutory presumption stands rebutted. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 49 64. Further, the prosecution has not established that any official work was pending with the accused, nor that the accused was in a position to extend any official favour. In trap cases, the existence of pending work is a vital circumstance to probabilise the allegation of demand. In its absence, the prosecution story becomes inherently doubtful. The trial Court has failed to appreciate this foundational defect and has instead shifted the burden onto the accused, which is impermissible in criminal law. The settled maxim “Eiincumbitprobatio qui dicit, non qui negat” squarely applies — the burden lies on the person who asserts, namely the prosecution, to prove its case beyond reasonable doubt, and not on the accused to disprove it. 65. The trial Court has also committed a serious error in invoking the statutory presumption under Section 20 of the Prevention of Corruption Act without first establishing the foundational facts of demand and acceptance. It is common that such presumption is not automatic and arises only after the prosecution proves the primary facts. Even where the presumption arises, it is rebuttable, and the burden on the Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 50 accused is not to prove his defence beyond reasonable doubt, but merely, to establish a probable explanation on the touchstone of preponderance of probabilities. This position is encapsulated in the maxim “Semper necessitas probandi incumbitei qui agit” — the necessity of proof always lies on the party who brings the charge. In the present case, the accused has consistently explained that the amount received was towards official dues, and such explanation, being plausible and consistent from the inception, is sufficient to rebut any presumption, if at all it arose. 66. The reasoning of the trial Court in drawing an adverse inference merely because the money was kept in the shirt pocket of the accused No.2 is also wholly untenable. Such a circumstance, by itself, does not establish illegal gratification, particularly when the defence explanation is not shown to be false. Criminal jurisprudence does not permit conviction based on suspicion or moral inference. Moreover, the delay in lodging the complaint coupled with inconsistencies in the evidence of the complainant and the absence of independent corroboration of Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 51 demand, further weakens the prosecution case. Delay, if not satisfactorily explained, introduces the possibility of embellishment and false implication. This principle aligns with the maxim “Falsus in uno, falsus in omnibus” (false in one thing, false in everything), which, though not strictly applied in India, underscores the caution that must be exercised when the credibility of a witness is shaken on material particulars. In the present case, not only is there doubt, but the prosecution has failed to prove its case beyond reasonable doubt, while the defence has offered a reasonable and probable explanation. Ultimately, the trial Court has reversed the settled burden of proof and convicted the accused on the basis of presumption and inference rather than proof. This approach strikes at the root of criminal jurisprudence, which is governed by the maxim “proof beyond reasonable doubt”, ensuring that no person is convicted unless the prosecution establishes guilt with certainty. The findings of the trial Court, being based on mis-appreciation of evidence and erroneous application of law, are therefore perverse and liable to be set aside in appeal, entitling the accused to an order of acquittal. Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 52 67. Applying the well-settled principles governing trap cases, the demand of illegal gratification is sine qua non for constituting an offence under the Prevention of Corruption Act. Suspicion, however strong, cannot take the place of proof (“suspicio non estprobatio”). The Hon’ble Supreme Court in decisions reported in OM PRAKASH v. STATE OF HARYANA reported in (2006)2 SCC 250; and in the case of BANARASI DASS v. STATE OF HARYANA reported in (2010)4 SCC 450, has consistently held that mere recovery of tainted money is not sufficient unless the prosecution proves beyond reasonable doubt that there was a prior demand and conscious acceptance of bribe. Further, as held in ANVAR P.V. B. P.K. BHASEER reported in 2014(10) SCC 473and in the case of RITESH SINHA v. STATE OF UTTAR PRADESH reported in 2019(3) Crimes 207 (SC), minor discrepancies, procedural irregularities, or informal conduct in handling money cannot substitute the foundational requirement of proof of demand. 68. In the present case, the alleged absence of immediate receipt, or the manner in which the money was Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 53 handled, is wholly insufficient to establish guilt in the absence of clear and cogent evidence of demand. Similarly, in DURAISAMY v. STATE (REP. BY INSPECTOR OF POLICE, VIGILANCE AND ANTI-CORRUPTION WING) reported in1997(2) Crimes 412, it has been held that unexplained delay in lodging the complaint creates doubt about the prosecution story, especially in trap cases where prior animosity or deliberation cannot be ruled out. 69. The burden lies on the one who asserts, not on the one who denies “eiincumbitprobatio qui dicit, non qui negat”. The trial Court has also taken note of the evidence of DW1, the Secretary of the Grama Panchayat, who in his cross- examination, has clearly stated that the jurisdiction of the Panchayat is confined only to Gramathana lands and does not extend to survey number lands. On that basis, the trial Court has observed that since the proposed poultry farm was situated in a survey number land, the Panchayat would not ordinarily have jurisdiction to issue an NOC. However, the trial Court proceeded to draw an adverse inference against the accused 1 and 2 by holding that they had taken advantage of the Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 54 complainant’s lack of legal knowledge and misused their position to extract illegal gratification. 70. When the very evidence of DW1 establishes absence of jurisdiction with the Panchayat, the foundational requirement of a “pending official work” or “official favour” itself becomes doubtful. In the absence of any legally enforceable duty or authority to issue an NOC for the said land, the question of the accused demanding illegal gratification for performance of such an act becomes inherently improbable. The trial Court, instead of appreciating this vital aspect in favour of the accused, has erroneously converted it into a circumstance against them, which is contrary to settled principles of criminal jurisprudence. 71. The trial Court has further considered the defence documents marked as Ex.D1 to Ex.D10 and has held that they are either portions of statements recorded under Section 161 of the Code of Criminal Procedure or routine administrative records, and that the discrepancies pointed out therein are minor in nature. While it is true that minor discrepancies may not affect the substratum of the prosecution Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 55 case, it is equally well settled that in trap cases the Court must scrutinize the evidence with greater care, particularly when the defence has raised a plausible and probable explanation. The explanation offered by the accused that the amount was received towards official dues, particularly in the context of prevailing practices in rural Panchayats, cannot be said to be improbable. When two views are possible, the one favourable to the accused must necessarily be adopted. The appreciation of evidence by the Trial Court on the aspects of demand, acceptance and recovery is legally unsustainable, as it proceeds on inferences rather than proof of the essential ingredients required under the Prevention of Corruption Act. 72. In P. SATYANARAYANA MURTHY v. DISTRICT INSPECTOR OF POLICE, STATE OF ANDHRA PRADESH AND ANOTHER reported in (2015) 10 SCC 152, the Hon'ble Supreme Court reiterated that proof of demand of illegal gratification is the sine qua non for constituting an offence under the Prevention of Corruption Act. Mere recovery of tainted currency notes Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 56 (MO.7), in the absence of proof of demand and voluntary acceptance, is insufficient to sustain a conviction. 73. In NEERAJ DUTTA v. STATE (GOVERNMENT OF NCT OF DELHI) reported in (2023) 4 SCC 731, the Constitution Bench of the Hon'ble Supreme Court, authoritatively held that proof of demand and acceptance of illegal gratification constitutes the foundational fact and is the sine qua non for establishing an offence under the Prevention of Corruption Act. The Bench further held that although demand and acceptance may be established by direct or circumstantial evidence. It was also held that the statutory presumption under Section 20 of the PC Act arises only after the prosecution establishes these foundational facts, and the accused may rebut such presumption on the touchstone of preponderance of probabilities. Hence, in the present case, mere recovery of tainted currency notes (MO.7) from the possession of Accused No.2, in the absence of proof of demand and voluntary acceptance, cannot sustain a conviction. The reasoning adopted by the trial Court is contrary Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 57 to the settled principles laid down by the Hon’ble Supreme Court. 74. Viewed from any angle, the findings recorded by the trial Court are based on mis-appreciation of evidence and erroneous application of law. The prosecution has failed to prove its case beyond all reasonable doubt. Hence, I answer point No.1 in the affirmative. Regarding Point No.2: 75. For the aforestated reasons and discussions, I proceed to pass the following: O R D E R (i) The Criminal Appeal No.1696 of 2022 filed by accused No.1; and the Criminal Appeal No.1737 of 2022 filed by accused No.2, are hereby allowed. (ii) The judgment of conviction and order of sentence dated 20th September, 2022 passed in Spl. Case No.332 of 2019 by the Court of the VII Additional District and Sessions Judge Crl.A No.1696 of 2022 c/w Crl.A. No.1737 of 2022 58 and Special Court for trial of cases under the Prevention of Corruption Act, is hereby set aside. (iii) The appellants/accused are hereby acquitted of the offences punishable under Sections 7(a), 7-A and 12 of Prevention of Corruption Act, 1988; (iv) The bail bonds, if any executed by the accused, shall stand cancelled; (v) Fine amount if any deposited, shall be refunded to the accused, after due identification; (vi) Registry is directed to transmit the copy of this judgment along with records to the trial Court forthwith. Sd/- (G. BASAVARAJA) JUDGE lnn