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3. Peter Philip, CW-1, went along with PW-2 to the said office. CW-1 requested the accused for passing the bill. On demand, CW-1 paid the money to the accused who kept the same under the book on his table. PW-2 witnessed the transaction. On a signal being given by CW-1, the IO along with PW-1 came to the scene, phenolphthalein test was done on hand wash, colour of the solution turned pink, the solution was collected in a separate bottle and sealed, the money was recovered from the possession of the accused as per the seizure memo.

9. The trial court has also given reason for acquittal that K.C. Rajan, PW-4 was competent to give final clearance. The accused was not the final authority. There was some objection by the District Treasury Office. The bill was again presented for clearance to the Treasury on 21.1.1988. Thus, it was doubted that the accused had deliberately withheld the bill and demanded illegal gratification of Rs.200/- from Peter Philip, CW-1, on 28.1.1988. The same has been found to be improbable. Cogent evidence was required in the circumstances. The trial court has found that even before recording the First Information Report, the IO had sent for and secured the presence of the witnesses. Thus, the FIR was based upon the deliberations between Peter Philip, CW-1 and L.Somasekhar, PW-8. The trial court also found that there was a discrepancy from where the money was recovered; whether it was lying on the table or inside the drawer of the table. It was held that the money was not recovered from the possession of the accused. The colour of the wash in MO-4 was not pink but contained dirty particles. The accused was not in possession of the subsidy bill. Thus, there was no reason to give him the money. The prosecution case that the accused was working as First Division Assistant on 1.2.1988 and was in-charge of the billing section, has not been found to be proved.

10. The High Court while reversing the judgment of acquittal in a short and cryptic judgment, has not cared to go into the various reasoning employed by the trial court. It has gone into only two factual aspects; firstly, into discrepancy as to time when the FIR was registered and witnesses were summoned, which was found not to be material one; and secondly, it observed whether the money was recovered from the drawer of the table or it was lying on the table, was insignificant as witnesses might not have remembered it due to lapse of time, which are the only reasons attributed for reversing the judgment of acquittal.

“24. Having regard to the facts and circumstances of this case, we are of the opinion that two views are possible and the view of the High Court cannot be said to be wholly improbable; it cannot be said, in view of the discussions made hereinbefore, that the materials brought on record would lead to only one conclusion i.e. the guilt of the accused. The impugned judgment, therefore, is sustained.”

13. Coming to the question whether the view taken by the trial court while acquitting the accused was probable, we find that in view of the fact that complainant Peter Philip, CW-1 died before the trial, as such he was not available for cross-examination with respect to the facts which were in his knowledge as to the demand of bribe and its payment. We have to carefully look into the other evidence available. In the absence of the complainant, the onus lay upon the prosecution to adduce credible evidence and to prove the guilt beyond the periphery of doubt. K.M.Eregowda, PW-2, had stated that 10 to 12 other officials were sitting in the same room in which bribe was paid. Taking of bribe in the presence of 10 to 12 other officials of the Treasury Office is quite improbable. It assumes significance in the circumstances from which place the money was recovered; whether it was from the possession of the accused. PW-1 has stated that he found currency notes on the table, and the accused was standing behind the table. Whereas K.N. Eregowda, PW-2, has stated that the currency notes were kept by the accused beneath the book on the table. Another witness L.Somashekara, PW-8, IO, has stated that he recovered the money from the drawer of the table. The versions given by the three witnesses are different from each other. Even if we ignore the contradictions between the versions of PW-1 and PW-2, the contradiction with respect to place of recovery of money whether it was inside the drawer of table or was lying on the table beneath the book is material one and could not have been ignored. Apart from that, we find that the IO has stated that he had seized Ex. P-14, release order of subsidy on 1.2.1988 and it had been mentioned thereon that it had been paid. As subsidy stood paid, it was incumbent upon the prosecution to prove when, in fact, it was paid. Whether it was paid on 1.2.1988 or earlier, which fact has not been proved as the very basis of the crime is release of subsidy, for which bribe was being demanded by the accused. Though it is not necessary to prove whether the accused was in a position to do the work for which he has demanded the bribe, or was having the competence to do the work for which he has demanded the bribe, however, in the peculiar facts of the instant case when the accused was under transfer, he had been relieved on 30.1.1988 and while Mr. G.T. Shivaramaiah was given the charge of the post accused was occupying, he was not on duty on 1.2.1988. Even if we accept that he was preparing the ‘charge list’ on 1.2.1988, which has not been produced, coupled with the fact that the complaint was lodged on the same date and it appears even before registration of the FIR, trap witnesses were called, all these facts improbabilised the version of the prosecution and the trial court had opined in the circumstances that there were some deliberations before recording the FIR. Since the complainant was not available for cross-examination, the view taken by the trial court could not be said to be the one which was not possible in the prevailing scenario. Even if two views are possible on the facts, one taken by the trial court did not call for interference, especially in appeal against acquittal.