Kerala High Court
M.S.Anil vs State Of Kerala on 12 January, 2026
2026:KER:2793
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 12TH DAY OF JANUARY 2026 / 22ND POUSHA, 1947
CRL.A NO. 790 OF 2014
CRIME NO.3/2007 OF VACB, KOTTAYAM
AGAINST THE JUDGMENT DATED 17.07.2014 IN C.C. NO.4 OF 2009 OF THE
COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
APPELLANT/2ND ACCUSED:
M.S.ANIL
DIVYANJANAM, CHETHANOOR PO, CHETHANOOR, MEENADU VILLAGE
BY ADVS.
SRI.S.RAJEEV
SRI.K.K.DHEERENDRAKRISHNAN
SRI.D.FEROZE
SRI.V.VINAY
RESPONDENT/COMPLAINANT STATE:
STATE OF KERALA
REPRESENTED BY THE PUBLIC PROSECUTOR,
HIGH COURT OF KERALA, ERNAKULAM
SPL PP VACB - RAJESH.A, SR PP VACB - REKHA.S
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON 12.12.2025,
ALONG WITH CRL.A.NO.743/2014, THE COURT ON 12.01.2026 DELIVERED THE
FOLLOWING:
2026:KER:2793
Crl.A. Nos. 743 & 790 of 2014
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
MONDAY, THE 12TH DAY OF JANUARY 2026 / 22ND POUSHA, 1947
CRL.A NO. 743 OF 2014
CRIME NO.3/2007 OF VACB, KOTTAYAM
AGAINST THE JUDGMENT DATED 17.07.2014 IN C.C. NO.4 OF 2009 OF THE
COURT OF THE ENQUIRY COMMISSIONER & SPECIAL JUDGE, KOTTAYAM
APPELLANT/3RD ACCUSED:
JAGANNADHAN @ JAGANNAN
BEENABHAVAN, ENTHAYAR P.O., KOOTTICKAL VILLAGE,
KOTTAYAM.
BY ADV SRI.AJEESH K.SASI
RESPONDENT/COMPLAINANT:
STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM.
SPL PP VACB - RAJESH.A, SR PP VACB - REKHA.S
THIS CRIMINAL APPEAL HAVING BEEN FINALLY HEARD ON
12.12.2025, ALONG WITH CRL.A.NO.790/2014, THE COURT ON 12.01.2026
DELIVERED THE FOLLOWING:
2026:KER:2793
Crl.A. Nos. 743 & 790 of 2014
3
"C.R"
COMMON JUDGMENT
Dated this the 12th day of January, 2026 Crl.A. Nos.743 and 790 of 2014 have been filed under Section 374(2) of the Code of Criminal Procedure, 1973, by the 3rd and 2nd accused respectively in C.C. No.4 of 2009 on the files of the Court of the Enquiry Commissioner and Special Judge, Kottayam, challenging the conviction and sentence imposed by the Special Judge against them as per the judgment dated 17.07.2014. The State of Kerala represented by the Public Prosecutor is arrayed as the sole respondent herein.
2. Heard the respective counsel for the appellants and the learned Public Prosecutor, in detail. Perused the verdict under challenge and the records of the Special Court.
3. Parties in these appeals shall be referred as 'accused' and 'prosecution', hereafter.
4. The prosecution case centered around the acceptance of bribe in connection with the construction of Thenpuzha - Mathumala road coming under the Block 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 4 Development office, Kanjirappally in the year 2006-2007. The 1st accused was the Overseer of the said block and the 2nd accused was in additional charge of the Assistant Engineer of the said Block, while working as the Assistant Engineer, Pampady Block. The complainant had solicited the help of the 3rd accused, a contractor, for the said work as the 3rd accused was having the expertise in the said field. For passing the final bill, accused Nos. 1 and 2, being public servants hatched a criminal conspiracy with the 3 rd accused and thereby demanded Rs.12,000/- and reiterated the demand through the 3rd accused and thereby accepted Rs.7,000/- towards illegal gratification by the 2 nd accused from the complainant through the 3rd accused on 02-07-2007 at the Block office, Pampady. Before that the 1 st accused accepted Rs.3,000/- and the 2nd accused accepted Rs.2,000/- at the work site from the complainant claiming the same as taxi fare. On this premise, the prosecution alleges commission of offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act [hereinafter referred as 'P.C. Act, 1988' for short] and under Section 120B of the Indian Penal Code [hereinafter referred 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 5 as 'IPC' for short], by the accused.
5. The Special Court framed charge for the above said offences. Thereafter, the Special Court conducted trial of this case, recorded evidence and tried the matter. During trial, PWs 1 to 12 were examined, Exts.P1 to 25 and MOs 1 to 9 were marked on the side of the prosecution. After questioning the accused under Section 313(1)(b) of Cr.P.C, Exts.D1 and D1(a) were marked on the side of accused as defence evidence. Ext.C1 also was marked as Court exhibit.
6. On appreciation of evidence, the Special Court found that the 1st accused was not guilty for the offences alleged by the prosecution and the 1 st accused was acquitted by the Special Court. Further, the Special Court found that the 2nd accused was guilty for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act and the 3rd accused was guilty for the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act as well as under Section 120B of the IPC. Accordingly, accused Nos.2 and 3 were convicted for the above said offences and sentenced as under:
In the result, the 2nd accused is sentenced 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 6 to suffer rigorous imprisonment for a period of six months and to pay a fine of Rs.5,000/- (Rupees five thousand only), in default to undergo additional simple imprisonment for a period of three months u/s. 7 of the Prevention of Corruption Act, 1988. He is sentenced to suffer rigorous imprisonment for a period of one year and to pay a fine of Rs.10,000/- (Rupees ten thousand only), in default to undergo additional simple imprisonment for a period of six months u/s. 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. The substantive sentences will run concurrently.
The 3rd accused is sentenced to suffer simple imprisonment for a period of six months and to pay a fine of Rs.2,000/- (Rupees two thousand only), in default to undergo additional simple imprisonment for a period of one month u/s. 7 r/w S.13(2) of the Prevention of Corruption Act, 1988 r/w S.120B of IPC. He is sentenced to suffer simple imprisonment for a period of one year and to pay a fine of Rs.5,000/- (Rupees five thousand only), in default to undergo additional simple imprisonment for a period of two months u/s. 13(1)(d) r/w S.13(2) of the Prevention of Corruption Act, 1988 r/w S.120B of IPC. The substantive sentences will run concurrently.
2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 7
7. While assailing the verdict impugned, the prime contention raised by the learned counsel for the 2 nd accused is that, there is no evidence in this case to see any demand of bribe by the 2nd accused, though the tainted money was recovered from the possession of the 2 nd accused. Therefore, the ingredients to prove the offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act not specifically established against the 2 nd accused and for the said reasons, the 2nd accused would deserve acquittal.
8. The learned counsel for the 3rd accused would submit that, even though PW1 deposed that the 3 rd accused demanded the bribe and accordingly on demand by the 3 rd accused, PW1 handed over the money to Jagannadhan (A3) and inturn the same was handed over to the 2 nd accused, the evidence of PW1, who turned hostile is not consistent. According to him, PW1 given evidence that accused Nos.1 and 2 never demanded any amount from him. Therefore, the Special Court went wrong in finding commission of offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act read with 120B of the IPC, by the 3 rd accused, while acquitting the 1st accused without finding commission of offence punishable under Section 120B of IPC, by the 1 st 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 8 accused.
9. The learned counsel for the 2 nd accused placed several decisions to contend that in order to fasten criminal culpability on an accused and to find commission of offences punishable under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act, 1988, there must be proof to show demand and acceptance of bribe and mere recovery of tainted money from the possession of the accused would not suffice the requirement of demand. The following are the decisions placed by the learned counsel for the 2 nd accused.
Neeraj Dutta v. State (NCT of Delhi), (2023) 4 SCC 731) Jayaraj B. v. State of Andhra Pradesh (2014 (13) SCC 55) State of Kerala v. Rao (2011 (2) KLT 812) Satyanarayana Murthy v. District Inspector of Police (AIR 2015 SC 3549) Girish Babu C.M. v. CBI (2009 (3) SCC 779) Hariharan P.A. v. State of Kerala (2021 (3) KHC 85) S.Ajith Kumar v. State of Kerala (2022 (5) KLT 433) Aman Bhatia v. State (NCT of Delhi) (2025 SCC OnLine SC 1013) Ahammed Nizar v. State of Kerala Abdul Rasheed K.A. v. State of Kerala (2025 KHC OnLine 1041) K.Satyanathan v. State of Kerala (2025 Ker 88652) Sunil Kumar v. State of Kerala (2025 KLT OnLine 2883) C.N. Rajagopalan v. State of Kerala (2025 Ker 88954)
10. Whereas the leaned Public Prosecutor submitted 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 9 that, even though PW1 turned hostile to the prosecution, his evidence was that the 3rd accused demanded Rs.12,000/- from PW1 to be paid to accused Nos.1 and 2 and on the date of trap, when the Vigilance party reached the office, he had seen the 2nd accused coming out of the office, by identifying him at the dock. At the same time, PW1 given evidence that when Jagannadhan asked as to whether the money asked was brought, PW1 entrusted the money to Jagannadhan and he inturn entrusted the money to the 2 nd accused. Thereafter, the money was recovered from the possession of the 2nd accused. According to the learned Public Prosecutor, when there is demand of bribe by one accused and acceptance by another accused, then also the demand and acceptance are said to be proved to constitute the offences under Section 7 and 13(1)(d) read with 13(2) of the P.C. Act. In this connection, the learned Public Prosecutor placed decision of the Apex Court reported in [(2018) 9 Supreme Court Cases 242] State of Gujarat v. Navinbhai Chandrakant Joshi and Others, with reference to paragraph Nos.10. The same reads as under:
10. The High Court acquitted the accused 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 10 on the ground that there was no recovery from Accused 1 J.D. Patel and that the demand by the accused persons has not been established by the prosecution. The High Court took the view that Accused 2 Navinbhai had no idea for what purpose the money was given to Accused 1 J.D. Patel by PW1 and therefore, it cannot be said that Accused 2 Navinbhai had accepted the bribe amount upon demand to PW1. The High Court was not right in brushing aside the evidence of PW1 who has clearly stated that Accused 1 J.D. Patel demanded bribe of Rs.1000 and the same was settled for Rs.500 for expediting the matter for conversion of the plot for non-agricultural purpose. Recovery of the tainted currency notes from Accused 2 Navinbhai and the presence of anthracene powder in the right hand of Accused 1 J.D. Patel and the pocket of the shirt of the accused 2 Navinbhai clearly show that they acted in tandem in the demand and acceptance of the bribe amount. When the demand and acceptance of illegal gratification has been proved by the evidence of PWs 1 and 3, the High Court was not right in holding that the demand and acceptance was not proved. The findings of the trial court did not suffer from any infirmity and the High Court was not justified in setting aside the conviction of the accused.
2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 11
11. In the above decision, the finding of the High Court was set aside by the Apex Court and confirmed the conviction and sentence imposed by the Special Court.
12. In view of the rival submissions, the points arise for consideration are:
1. Whether the Special Court is justified in finding that the 2nd accused/appellant committed the offence punishable under Section 7 of the P.C. Act, 1988?
2. Whether the Special Court is justified in finding that the 2nd accused/appellant committed the offence punishable under Section 13(1)(d) read with 13(2) of the P.C. Act, 1988?
3. Whether the Special Court is justified in finding that the 3rd accused/appellant committed the offence punishable under Section 7 read with 13(2) of the P.C. Act, 1988 read with 120B of the IPC?
4. Whether the Special Court is justified in finding that the 3rd accused/appellant committed the offence punishable under Section 13(1)(d) read with 13(2) of the P.C. Act, 1988 read with 120B of the IPC?
5. Whether the verdict of the Special Court would require interference?
6. Order to be passed?
2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 12
13. Point Nos.1 to 4:- In order to address these points, it is necessary to evaluate the evidence, in this case. PW1, who is the complainant, had filed Ext.P3 written complaint before PW11 on 02.07.2007 against accused Nos.1 to 3 complaining that the 1st accused had accepted Rs.5,000/- each twice from him while the renovation work of the road was going on and the entire amount spent for the construction of the work had been met from the Ashramam fund. Only after passing the final bill it could be possible to reimburse the amount to the Ashramam. In spite of the completion of the work and taking of the measurements, the final bill was not passed even though he had made attempts in the block office in this regard repeatedly. The 3 rd accused, Jagannadhan had acted as a mediator with the officials for passing the bill in the capacity as the contractor also. Jagannadhan had conveyed the message that accused Nos.1 and 2 have demanded Rs.15,000/- for passing the bill. The amount was further reduced to Rs.12,000/- by him on bargaining. The 1st accused, Overseer had directly demanded that by specifying the date as 02.07.2007. When the matter was conveyed to Jagannadhan (A3) by phone he 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 13 had fixed the share of the 2nd accused as Rs.7,000/- and for the 1st accused as Rs.5,000/-. It is further suggested by the 3rd accused that, the 2nd accused was working at Pampady Block office, the amount had to be paid to him at there on 02.07.2007 for signing the relevant papers and the remaining Rs.5,000/- was to be entrusted to the 3 rd accused so that it could be handed over to the 1 st accused on 03.07.2007, when the 1 st accused reached at Enthayar for taking measurements of pipe. The 3rd accused has also conveyed PW1 that when accused Nos.1 and 2 reached the work site of the 3rd accused on the previous day, they had enquired whether the parties of the road work was not in need of money by passing the bill or not.
14. In addition to PW1, PW3, another devotee of the Ashramam was also examined from the side of the prosecution in connection with the work. He testified about the association of A3 with the road work along with PW1. According to the witness, they have no experience in this field as basically, they were engaged in rubber tapping. He had spoken that on a day the 2 nd accused accepted Rs.3,000/- at the work site from him through the 3 rd accused.
2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 14 He feigned ignorance whether he had gave any statement to the Vigilance that the 1st accused had accepted Rs.3,000/- and the 2nd accused accepted Rs.2,000/- from him or not. The witness was declared hostile to the prosecution.
15. PW5, an Overseer of the Pampady Block office was examined to prove that he had seen the 3rd accused in the morning of the trap day in the office and obtained signatures of the 2nd accused in certain documents. As he did not support the prosecution, he was declared hostile. Exts.P11 to P13 are C.D. contradictions of the witness, which reads that he had known Mohanan (PW1) as the convener of the work (P11), that around 10 a.m. on the said day, Jagannadhan (A3) enquired the A.E. (A2) in the office with M-Book and file (P12), that he had seen the A.E. (A2) putting his signature in the M-Book (P13).
16. PW12 examined in this case was the Dy.S.P. Kottayam Range, VACB and he deposed about the investigation based on the FIR registered, acting on the statement given by PW1. He deposed about production of MO1 series notes by PW1, the pre trap proceedings, demonstration of phenolphthalein test and entrustment of 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 15 MO1 series at the hands of PW1 by preparing Ext.P6 mahazar. His evidence further is that, at about 11.00 a.m, the trap team started from the Dy.S.P. office and reached at the Block Office, Pampady at 11.40 a.m, PWs 1 and 2 were sent to the Block Office and there was discussion between the 3rd accused and PW1 infront of the building and then both of them entered the office of the A.E. PW12 also deposed that, when PW1 entered the office, the 3 rd accused was coming outside and moving towards the varanda. Then, the 3rd accused asked PW1 how much amount was brought and the 2nd accused, 3rd accused and A.E. walked towards the office. Later, PW12 received signal and he entered into the office. According to him, when he enquired about receipt of bribe to the A.E, he became perplexed. Thereafter, PW12 himself and the witnesses examined their body and ensured nothing was with them and prepared sodium carbonate solution, which was marked as MO3. Later, in MO3 solution the hands of witness Nos. 1 and 2 were dipped and there was no colour change. When PW12 examined the pants worn by the A.E, with the aid of PW2, MO1 notes were recovered therefrom and he examined and found that those were the 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 16 notes entrusted to PW1. Then the left hand of the A.E. was dipped into the sodium carbonate solution and the solution showed pink colour change and the solution was taken in a bottle and the same is MO4. PW12 also deposed about dipping of the right hand of the A.E. in the sodium carbonate solution and there was no colour change to MO4 solution. He also deposed about dipping of MO1 series notes in another sample of sodium carbonate solution and its pink colour change and he identified MO6 as the bottle of the said solution. Similarly, he deposed about dipping of right hand of the 3rd accused in the sodium carbonate solution and its colour change. MO7 was the said solution. In another bottle of sodium carbonate solution, the left hand of the 3 rd accused was dipped, but there was no colour change and MO8 was the said solution. He also deposed about phenolphthalein test on MO9 pants worn by the 2 nd accused and its subsequent colour change. He also deposed about taking into custody of M-Book and files at the hands of the 3 rd accused by preparing Ext.P7 mahazar.
17. As regards to the demand and acceptance of bribe by the accused is concerned, the evidence available is that 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 17 of PW1. On scrutiny of the version of PW1, he had made complaint to the Vigilance, since Rs.12,000/- was asked as bribe for encashment of the bill. His evidence further is that, it was so said by Jagannathan (A3) and he also told him that the money was for accused Nos.1 and 2. His version further is that, out of Rs.12,000/-, Rs.7,000/- was for the Engineer (A2) and Rs.5,000/- was for the Overseer (A1). Further, Rs.5,000/- was demanded for Jagannathan himself for doing the work. The money was so demanded, seven/eight days prior to the lodging of complaint. Later, he did not support the prosecution case and accordingly he was declared hostile and Ext.P4 contradiction was marked, since he denied Ext.P4 previous statement by him before the Vigilance. But, during cross-examination by the learned Legal Advisor, he deposed that he had produced fourteen 500 rupees notes before the Dy.S.P. and Dy.S.P. initialed the same using a pen. He identified MO1 series as the said notes. PW1 also deposed about the presence of two officials in the Dy.S.P. office. He also deposed about smearing of powder and placing the same on his pocket and the instruction given by the Dy.S.P. that he would give the money only when 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 18 demanded. He further deposed about phenolphthalein demonstration. According to PW1, thereafter the trap party along with him reached the Block Office, Pampady, while he along with the officials were entering into the Block Office, he met Jagannathan (A3) going to the Block Office and he met Jagannathan and he told PW1 that the Engineer was in a meeting and then he along with Jagannathan went to meet the Engineer at the Block Office. When he reached the aisle, the Engineer pointed out Anil (A2) and then Jagannathan asked to PW1 whether the money demanded was brought and he had entrusted the money to Jagannathan. PW1's version further is that, he had entrusted the money to Jagannathan, since Jagannathan informed that the money was demanded by the 1 st accused. Then, Jagannathan handed over the money to the Engineer and he placed the same in the pocket of his pants and PW1 came out and gave signal to the officails. Later, the money was recovered by the Dy.S.P. from the pockets of the 2 nd accused. The version of PW1 further is that, Jagannathan informed him that earlier Rs.3,000/- was given to the Overseer and Rs.2,000/- was given to the Engineer and for that he had made payment to 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 19 Jagannathan. In this case, PW1 being a hostile witness deposed regarding entrustment in the above line.
18. According to the learned Public Prosecutor, going by the ratio laid down in Navinbhai Chandrakant Joshi's case (supra), where the facts of the case has similarity with the facts of the present case, the High Court took the view that accused No.2 Navinbhai had no idea for what purpose the money was given to accused No.1 by PW1 and therefore, it could not be stated that accused No.2 Navinbhai had accepted the bribe amount upon demand to PW1. But, the Apex Court found that the High Court was not right in brushing aside the evidence of PW1 who had clearly stated that accused No.1 J.D. Patel demanded bribe of Rs.1,000/- and the same was settled for Rs.500/- for expediting the matter for conversion of the plot for non-agricultural purpose and notes were recovered from the possession of the 2 nd accused, which showed presence of anthracene powder in the right hand of accused No.1 J.D. Patel and the pocket of the shirt of accused No.2 Navinbhai. Thus, the Apex Court held that the evidence of PW1 in the said case would show that accused No.1 and 2 acted in tandem in the demand and 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 20 acceptance of the bribe amount.
19. Here, the point argued by the learned counsel for accused No.2 is that, since there is no evidence in this matter to see any demand of bribe by the 2 nd accused directly from PW1 and the demand for and on behalf of him through the 3rd accused is not sufficient prove the demand at the instance of accused No. 2.
20. In the instant case, on perusal of the evidence of PW12, the Investigating Officer, he stated that, while he was at the varanda of the Block office, he had witnessed the 2 nd accused coming from outside and on reaching the varanda, the 2nd accused asked to PW1 as to how much amount brought by him. Further, he had witnessed that the Assistant Engineer (2nd accused), the 3rd accused and the complainant were moving to the office of the Assistant Engineer.
21. When this evidence showing demand of bribe by the 2nd accused was pointed out, it is submitted by the learned counsel for the 2 nd accused that, this evidence was not put during examination of the 2 nd accused under Section 313 of Cr.P.C. Therefore, the same cannot be used against the 2nd accused. This contention is sustainable, as it is the 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 21 settled law that failure to put relevant circumstances against an accused in his examination under Section 313 of Cr.P.C. would be fatal to the prosecution, since the same would cause prejudice to the accused. Decisions of the Apex Court reported in [2023 KHC 7210 : 2023 KHC OnLine 7210 :
2023 INSC 1020] Nababuddin @ Mallu @ Abhimanyu v.
State of Haryana and [2022 KHC 7274 : 2022 KHC OnLine 7274 : 2022 LiveLaw (SC) 1027] Kalicharan v.
State of Uttar Pradesh, have been placed by the learned counsel for the 2nd accused, in this regard.
22. Now, it is necessary to address the ingredients required to attract the offences under Section 7 and Section 13(1)(d) r/w Section 13(2) of the PC Act, 1988. The same are extracted as under:-
Section 7:- Public servant taking gratification other than legal remuneration in respect of an official act. - Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 22 forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (C) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than three years but which may extend to seven years and shall also be liable to fine.
Section 13:- Criminal misconduct by a public servant. - (1) A public servant is said to commit the offence of criminal misconduct,-
a) xxxxx
(b) xxxxx
(c) xxxxxx
(d) If he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest. xxxxx (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 23 for a term which shall be not less than four years but which may extend to ten years and shall also be liable to fine.
23. In this connection, it is relevant to refer a 5 Bench decision of the Apex Court in [AIR 2023 SC 330], Neeraj Dutta v. State, where the Apex Court considered when the demand and acceptance under Section 7 of the P.C.Act to be said to be proved along with ingredients for the offences under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988 and in paragraph No.68, it has been held as under :
"68. What emerges from the aforesaid discussion is summarised as under:
(a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and (ii) of the Act.
(b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence.
(c) Further, the fact in issue, namely, the proof 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 24 of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence.
(d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind:
(i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant.
(ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act
iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 25 be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13 (1)
(d), (i) and (ii) respectively of the Act.
Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act
(e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 26 accused and in the absence of rebuttal presumption stands.
(f) In the event the complainant turns 'hostile', or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant.
(g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)
(d) and (ii) of the Act.
(h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature."
24. Thus, the legal position as regards to the essentials under Sections 7 and 13(1)(d)(i) and (ii) of the PC 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 27 Act, 1988, is extracted above. Regarding the mode of proof of demand of bribe, if there is an offer to pay bribe by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. The mode of proof of demand and acceptance is either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 28 not abate nor does it result in an order of acquittal of the accused public servant. Insofar as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law.
25. In this context, it is relevant to refer the decision of this Court in Sunil Kumar K. v. State of Kerala reported in [2025 KHC OnLine 983], in Crl.Appeal No.323/2020, dated 12.9.2025, wherein in paragraph No. 12, it was held as under:
"12. Indubitably in Neeraj Dutta's case (supra) the Apex Court held in paragraph No.69 that there is no conflict in the three judge Bench decisions of this Court in B.Jayaraj and P.Satyanarayana Murthy with the three judge Bench decision in M.Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Section 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or "primary evidence" of the complainant is unavailable owing to his death or any 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 29 other reason. The position of law when a complainant or prosecution witness turns "hostile" is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion there is no conflict between the judgments in the aforesaid three cases. Further in Paragraph No.70 the Apex Court held that in the absence of evidence of the complainant (direct/primary,oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and 13(1)(d) r/w Section 13(2) of the Act based on other evidence adduced by the prosecution. In paragraph No.68 the Apex Court summarized the discussion. That apart, in State by Lokayuktha Police's case (supra) placed by the learned counsel for the accused also the Apex Court considered the ingredients for the offences punishable under Section 7 and 13(1)(d) r/w 13(2) of the PC Act,1988 and held that demand and acceptance of bribe are necessary to constitute the said offences. Similarly as pointed out by the learned counsel for the petitioner in Aman Bhatia's case (supra) the Apex court reiterated the same principles. Thus the legal position as regards to the essentials to be established to fasten criminal culpability on an accused are demand and acceptance of illegal gratification by the accused. To put it otherwise, proof of demand is sine qua non for 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 30 the offences to be established under Sections 7 and 13(1)(d) r/w 13(2) of the PC Act, 1988 and dehors the proof of demand the offences under the two Sections could not be established. Therefore mere acceptance of any amount allegedly by way of bribe or as undue pecuniary advantage or illegal gratification or the recovery of the same would not be sufficient to prove the offences under the two Sections in the absence of evidence to prove the demand."
26. On meticulous evaluation of the evidence available, it is discernible that, in this case, no direct evidence forthcoming to show demand of bribe by the 1 st and 2nd accused and the Special Court acquitted the 1 st accused. No challenge raised by the prosecution against the said finding. The evidence of PW1 during his examination after declaring him as hostile would show that, the 3 rd accused demanded and accepted bribe. In this connection, it is pertinent to note that demand and acceptance of something by a non-public servant would not constitute offences under Sections 7 and 13(1)(d) read with 13(2) of the P.C. Act, 1988, unless with the aid of Section 120B of IPC, hatching of conspiracy and subsequent demand and acceptance of bribe by public servant and non-public servant 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 31 to be proved substantially.
27. On evaluating the evidence, it could not safely be concluded that there was demand and acceptance of bribe by accused No.2. Although, demand and acceptance of money alleged to be bribe, could be found against the 3 rd accused, that by itself would not be sufficient to find culpability upon him, since no offences under the P.C. Act would lie independently against a non-public servant. Thus, the prosecution case is not fully free from doubts and the benefit of doubt shall go in favour of the appellants/accused Nos.2 and 3. Therefore, the appellants/accused Nos.2 and 3 herein are entitled to benefit of doubt and as such the conviction and sentence imposed by the Special Court against them in the above circumstances cannot sustain. In view of the matter, the same are liable to be set aside.
28. Point Nos.5 and 6:- In the result, these appeals are allowed. Conviction and sentence imposed by the Special Court against the appellants/accused Nos.2 and 3 are set aside. Consequently, the 2nd and 3rd accused are acquitted for all the offences alleged against them. The bail bonds executed by the appellants/accused Nos.2 and 3 shall stand 2026:KER:2793 Crl.A. Nos. 743 & 790 of 2014 32 cancelled. Accused Nos.2 and 3 are set at liberty forthwith.
Registry is directed to forward a copy of this judgment to the Special Court, forthwith, for information and further steps.
Sd/-
A. BADHARUDEEN SK JUDGE