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4. Heard the arguments of the learned Special Public Prosecutor representing the appellant and so also the arguments of the learned counsel appearing for the respondent/accused.

5. Learned Special Public Prosecutor for the appellant, during the course of his arguments, made the submission that the learned Sessions Judge has not at all examined and appreciated the oral evidence of the prosecution witnesses with regard to demand and acceptance of the bribe amount by the accused person. He made the submission that the learned Sessions Judge only discussed about some alterations in the date and the time in the panchnama and also in the arrest memo and non-production of the tape-recorder, and has come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. Learned Special Public Prosecutor made the submission that sofar as the alleged offence under Section 7 of the Prevention of Corruption Act is concerned, demand of bribe amount is not at all necessary; if the amount is accepted, then that itself is an important material fact to be taken into consideration. It is his submission that sofar as the alleged offence under Section 13(1)(d) of the Act is concerned, demand for the bribe amount is necessary. He made the submission that sofar as the demand and acceptance of bribe amount is concerned, the complainant and the shadow witness, in their evidence before the Court, have consistently deposed that the respondent/accused demanded the bribe amount and also accepted the bribe amount from the complainant in the presence of the shadow witness. He also made the submission that while conducting trap proceedings, photographs of the same were also taken. He also relied upon the said photographs and submitted that the said photographs clearly go to show the presence of the respondent/accused producing the money, taking his hand wash, preparing the panchanama etc. Hence, it is his contention that when such positive materials are placed before the Court, even if the tape-recorder was not produced before the Court, it is not fatal to the case of the prosecution. He made the submission that the tape-recorder, which was given to the complainant to record the conversation before the registration of the FIR, was produced before the Court, but the tape-recorder said to have been given, for the second time, to use it at the time of trap proceedings, was not at all available and hence, the same could not be produced before the Court. He submitted that sofar as the tape-recorder, which was already produced before the Court, it was referred to the expert to recognise the voice and also the conversation recorded in it, but the expert gave the opinion that it was not clearly audible and hence he was not in a position to give his opinion in that regard. Hence, the learned Special Public Prosecutor made the submission that the prosecution has not suppressed any material, and in spite of taking all possible steps in the matter, they were not able to produce the tape-recorder and the conversation details. Hence, it is his contention that no adverse inference can be drawn in this regard. He has also referred to the oral evidence of the prosecution witnesses and made the submission that, as on the date of the alleged incident, the work of the complainant was pending with the respondent/accused. He refers to the oral evidence and the document in this regard and made the submission that even if the respondent/accused made an endorsement on the application that "permission can be given", which is dated 06.12.2007, but it has come on record during the course of the evidence of the prosecution witnesses that though it was ready, but the seal was not put on the same unless and until the seal is put, the same will not be processed. Hence, he made the submission that his evidence on the part of the prosecution clearly goes to show that the matter was still pending with the respondent/accused and hence, the respondent demanded the bribe amount in order to show official favour in connection with grant of permission for construction. He also refers to the FSL report and made the submission that even the FSL report goes to establish that the respondent/accused received the bribe amount as the right hand wash of the respondent/accused turned into pink colour as per the expert's opinion. Hence, he submitted that about all these material aspects, the learned Sessions Judge has not at all discussed; there is a wrong reading of the evidence of the prosecution witnesses and so also wrong reading of the documents produced in the case. Sofar as the photographs are concerned, he made the submission that the learned Sessions Judge raised a doubt with regard to the photographs and the time of the trap proceedings and the arrest of the respondent/accused. In this connection, learned Special Public Prosecutor made the submission that the trap party went to the spot at about 4.15 p.m. and till the arrival of the respondent/accused to his office some of the photographs were taken and other photographs were taken after 7.00 p.m. during the trap proceedings. Hence, he made the submission that only on this basis, the learned Sessions Judge disbelieved the entire case of the prosecution, which is not the correct approach in this case. Hence, he submitted that the judgment and order of acquittal passed by the learned Sessions Judge is illegal and that it is perverse and capricious. Therefore, learned Spl. Public Prosecutor prayed to allow the appeal, to set aside the judgment and order of acquittal and consequently to convict the respondent/accused for the aforesaid offences. In support of his contentions, learned Government Pleader relied upon the following decisions:

1) Vinod Kumar Vs. State of Punjab reported in (2015)3 SCC 220
2) State, Represented by Inspector of Police, Pudukottai, T.N. Vs. A. Parthiban reported in (2006)11 SCC 473

6. Per contra, learned counsel appearing for the respondent/accused during the course of his arguments, made the submission that the case of the prosecution is full of alterations of the documents produced in the case, which is not properly explained by the prosecution. He made the submission that when the case of the prosecution is that even before the registering of the FIR, the complainant was sent by the Lokayukta Police to the office of the accused person with the tape-recorder, this is nothing but collecting the evidence in the case even before the registration of a criminal case against the accused person. In this connection, the learned counsel drew the attention of this Court to the relevant portion in the evidence of P.W.1 and so also the Investigating Officer-P.W.11. Hence, he made the submission that the Investigating Officer himself has admitted that he sent the complainant before registering the FIR in order to collect the evidence in the matter and also to verify the truth or otherwise of the case of the prosecution. Hence, he submitted that, this would clearly goes to show that it is with a mala fide intention the proceedings are initiated as against the respondent/accused. He further submitted that the tape-recorder handed over to the complainant to use it during the trap proceedings and when it is their case that while giving the tape-recorder it was in order, complainant was given clear instructions how to operate it and it is the case of the complainant that the conversation between him and the accused was recorded, the learned counsel submitted that production of the said tape-recorder before the Court is a must. He submitted that even it is necessary to prove the defence of the accused, because it is his consistent defence as per the explanation offered that he never demanded the money and even when he objected, the complainant himself voluntarily and forcibly thrusted the money into his pocket. Counsel submitted that had the tape-recorder been produced before the Court, the truth would have come out, it could have supported the evidence of the accused. He made the submission that the accused, during the course of the trial proceedings, filed an application seeking a direction to the prosecution to produce the said tape-recorder for which the prosecution submitted before the Court that the tape-recorder was not in their custody or possession and hence, they were not in a position to produce the same. Counsel, with regard to the timing of the alleged incident and conducting the trap proceedings, made the submission that some of the photographs clearly goes to show that they were taken during the day time and some of the photographs were taken during the night. In this connection, he refers to the deposition of the panch witnesses wherein also they have deposed before the Court that when they signed the panchanama, it might be 1.00 p.m. or 1.30 p.m. He made the submission that the prosecution witnesses also admitted during the course of cross-examination that the photographs also go to show that some of them were taken in the daylight and the shadow will be seen beneath the vehicles. Referring to these materials he submitted that this supports the defence of the accused that at such time, as alleged by the prosecution, no such trap proceedings were taken place. He also submitted regarding time of arrest is concerned, the arrest memo Ex.P.45, he drew the attention of this Court regarding the time of arrest and made the submission that is clearly visible to the naked eye that figure '9' is over-written and there is no initial of the person who corrected it and there is no explanation as to why it was done. It is also his submission that as against the column no.4 seeking the information about the time, date and place of arrest, regarding two aspects the date and place is concerned, there is no information in the said arrest memo. Hence, he submitted that this itself raises a reasonable doubt in the mind of the Court where really trap proceedings had taken place in between 7.00 p.m. to 10.00 p.m. as alleged by the prosecution. He has also made the submission that the Trial Court taken all these aspects into consideration and extensively discussed in the judgment and ultimately, the Trial Court has come to the conclusion that the prosecution has failed to prove its case beyond reasonable doubt. Hence, he submitted that no illegality has been committed by the Trial Court nor there is perverse or capricious view taken. Hence, he submitted that there is no merit in the appeal. Learned counsel also made the submission that this appeal is filed challenging the judgment and order of acquittal, therefore, normally in such cases, the Courts will have to be slow in reversing the findings of the Courts below and in support of his arguments, learned counsel appearing for the respondent/accused also relied upon the following decisions:

7. I have perused the grounds of the appeal memorandum, oral evidence of PW1 to 11, documents produced in the case before the trial court, decisions relied upon by the learned counsel on both sides so also considered the arguments submitted by both the sides at the Bar.

8. The charges as against the respondent/ accused are under Section 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act. The case of the prosecution as per the complaint averments that the respondent/accused demanded and accepted bribe amount of Rs.1,500/- from the complainant on 10.12.2007, the date of the trap. Therefore, let me peruse the materials so far as the demand and acceptance of the bribe amount of Rs.1,500/- as contended by the prosecution. Ex.P1 is the complaint by the complainant one Basavanneppa Tirakappa Kemmannakeri, wherein he has stated he has filed an application before the C.M.C., Haveri seeking permission for the construction of first floor of his house. The same was sent to the Urban Development Authority, Haveri and the respondent/accused was working as a Junior Project Engineer in the said authority for giving such permission he unnecessarily delay the matter and lastly when the complainant approached the said Engineer, he demanded Rs.1,500/- for the purpose of the said work as it is mentioned in Ex.P1. Hence, it is the case of the complainant that he was not willing to pay the bribe amount to the accused person, he approached the Lokayukta Police on 10.12.2007 in the morning at about 10.30. The Lokayukta Inspector give him the Tape Recorder asking him to go and had the talks with the respondent/accused in connection with the said amount and record the conversation between himself and the accused and to come back. Accordingly, he went to the office of the accused along with the tape recorder and when he approached the accused, the tape recorder was on. The accused demanded the amount which is recorded in the tape recorder. After that he come back to the Lokayukta Office and told the Lokayukta Inspector that he was asked to come to the office of the accused at about 2.00 to 2.30 p.m. Then the entrustment mahazar proceedings were conducted as per Ex.P2 after completing the mahazar proceedings like smearing phenolpthalene powder to the currency notes they were kept in the pocket of the complainant with instruction that he has to go to the office of the accused in case if the accused is demanded the amount, he has to pay the same to the accused. PW2 the shadow witness who was also present during the entrustment mahazar proceedings was asked by the Lokayukta Inspector that he has to accompany the complainant to the office of the accused and he has to observe what is happening between the said two persons and he has to tell the same before the Lokayukta Inspector.

10. Looking to the oral evidence of PW1 and PW2, PW1 deposed in his evidence that accused made a demand for Rs.2,000/- and when he told that Rs.2,000/- is on the higher side and he is not able to pay that much amount. Then the accused person told complainant to arrange for Rs.1,500/- towards the bribe amount. This is in examination-in-chief of PW1 on Page No.2 at Para No.2. But looking to the contents of the complaint, there is no mention in the complaint/Ex.P1 that originally the demand by the accused person was for an amount of Rs.2,000/- and after discussion and deliberation, it was reduced to Rs.1,500/-. The complaint is silent about original demand amount of Rs.2,000/-, it is only mentioned by the complainant that accused demanded Rs.1,500/-. With regard to the said demand of the bribe amount is concerned apart from the oral evidence of PW1 and 2, it is the case of the prosecution that there is a conversation between the complainant and the accused person regarding the said demand of the bribe amount. It is no doubt true so far as the proof of the case of the prosecution is concerned, it can rely upon the oral evidence of PW1 and 2 and other witnesses also. But when it is the case of the prosecution that the tape recorder was given to the complainant even earlier to registration of the FIR asking him to go to the office of the accused, had the conversation and record the said conversation in the tape recorder and it is the case that same has been done and it is recorded in the tape recorder. Not only that it is also the case of the prosecution even during the trap proceedings also the tape recorder was carried to record the proceedings and it is the consistent defence of an accused person that he never demanded the said amount, it is the complainant who forcefully gave the said amount into the hands of the accused person, it is necessary for the prosecution to produce the said tape recorder before the Court. So far as the said tape recorder are concerned, the first tape recorder which is said to have been carried by the complainant before registering the FIR, the prosecution kept the report of an expert stating that the said conversation was not properly audible and he was not able to identify the voice of the persons involved in said conversation. It is no doubt true in this regard the prosecution produced the certificate i.e. by way of report by the expert i.e. Ex.P40. But so far as the second tape recorder is concerned, which is said to have carried even during the trap proceedings, it is mentioned in Ex.P3/the trap mahazar panchanama as it was not properly audible, he has not seized the said tape recorder. But looking to the oral evidence of PW1, 2 and 3, the complainant and two panch witnesses, their evidence is very clear that so far as the first tape recorder conversation is concerned, when they had been to the Lokayukta Office, they were made to know the conversation in the tape recorder and it was played before them. So also the complainant deposed that it was properly audible and they have heard it. It is the evidence of the Investigation Officer that regarding the said tape recorder, he also heard the conversation then he made known the conversation to the panch witnesses. If that is so then why it was not audible when it was examined by the expert, is the point for consideration. When all the witnesses have deposed that they have heard the conversation in the tape recorder that there is a demand made by the accused person, then it is necessary on the part of the prosecution to produce the said tape recorder before the Court. In this regard, the evidence of PW2 is very very important and relevant, wherein PW2 deposed in the cross-examination at Page No.7 of his deposition that in this case tape recorder is very important document to know the truth in the matter. So even according to this witness, the tape recorder is the important material document in the case. The production of tape recorder and its conversation before the Court is also very much essential even to appreciate the defence of the accused person that it was thrusted into his hand forcefully even though he objected for the payment of the said amount. When such being the case non-production of the tape recorder speaks on the case of the prosecution, it is the contention of the defence during the course of cross- examination of the prosecution witnesses they have withheld the production of the tape recorder thinking that in case if it is produced before the Court, truth will come out when such suggestion was made to the witnesses that with a purpose of suppressing what has recorded in the tape recorder, it was not produced before the Court then it was the bounden duty of the prosecution to produce the said tape recorder before the Court. Admittedly, according to even the Investigation Officer and the contents of the Ex.P3/mahazar, same was not seized by the Investigation Officer. He is the Investigation Officer, he is not final authority to take the decision in the matter. He ought to have seized it in whatever condition, it could have been produced before the trial court and it is for the trial court during the course of the trial of the proceedings to take a decision in respect of that particular tape recorder if the conversation in the tape recorder was not audible as deposed by the witnesses. Same thing might have been observed by the learned Sessions Judge while writing the judgment. But the court is not at all having an opportunity to see what is the conversation in the said tape recorder. Under such circumstances and in view of the specific defence of the accused person, Court will have to draw the adverse inference as against the case of the prosecution under Section 114(g) of the Indian Evidence Act that had the tape recorder produced before the Court the conversation said to have been recorded would have gone against the case of the prosecution. Therefore, even if there is a oral evidence of PW1 and 2 regarding the demand made by the accused person and accepted the bribe amount even then the Tape Recorder contents and the conversation is very much essential to be produced before the Court, which was not done in this case. It is no doubt true learned Special Public Prosecutor during the course of argument made the submission even if there is no Tape Recorder case can be proved, on the oral evidence of prosecution witnesses, it is true that there is no necessity that in each and every case the demand and acceptance said to have been made by the accused person is also to be proved by electronic methods. But having used such a Tape Recorder in this case then there is a bounden duty on the prosecution not to withheld it and to produce the same before the Court. Therefore, non-production of the Tape Recorder before the Court of law and even not seizing it during the course of trap mahazar proceedings, the prosecution is not fair enough in this case to withheld the said Tape Recorder.