1. This appeal is filed by the appellant under Section 374(2) of Cr.P.C. for setting aside the judgment and order of conviction and sentnence passed by the II Addl. District and Sessions Judge and Lokayuktha Special Judge, at Raichur. (hereinafter referred as trial court) in Spl. Case No.2/2015 for having convicted the appellant and sentenced to undergo simple imprisonment of one year and pay fine of Rs.2000/- for the offence punishable under Sections 7 of Prevention of Corruption Act (hereinafter referred to as 'PC Act) and also sentenced to undergo Simple Imprisonment for 2 years and to pay fine of Rs.4000/- for the offences punishable under Sections 13(1)(d) read with 13(2) of the PC Act.

2. During the pendency of the appeal, the appellant died and the legal representatives of the appellant prosecuted the present appeal.

3. Heard the arguments of learned counsel for the appellant and learned special counsel for the Lokayuktha,.

4. The ranks of the parties before the trial court is retained for the sake of convenience.

5. The case of the prosecution is that on the complaint of PW7/Manappa Badiger, the Lokayuktha police registered FIR. It is alleged that the appellant/accused said to be Second Division Clerk in the office of the Deputy Director of Public Instruction (herein referred as DDPI) Raichur, and the complainant filed application for medical reimbursement and the accused demanded Rs.2000/- as bribe, the complainant not interested in giving bribe, hence filed the complaint. The police registered FIR in Crime No.7/2014 for the offence punishable under Section 7 of PC Act. After registering the FIR a trap was set up and the complainant payed the bribe amount on 12.11.2014, the accused was caught red handed and seized cash of Rs.2000/- and after arresting the accused, the police have investigated the matter and filed the charge sheet.

6. After taking cognizance by the Special Court the accused appeared and faced the trial by denying the charges framed against him. Hence, the prosecution examined 9 witnesses and got marked 32 documents and marked 10 material objects. The statement under Section 313 Cr.P.C. was recorded, the case of the accused was one of the total denial, but not lead any evidence, except marking Ex.D1 a letter issued by the Secretary of Zilla Panchayath. After hearing the arguments, the trial court found the appellant guilty and convicted and sentenced to undergo imprisonment as stated above. Being aggrieved with the judgment of conviction and sentence the appeal came to be filed.

7. During the pendency of the appeal the original accused died. Hence, his legal representatives of the deceased accused prosecuted the appeal since the sentence of imprisonment abates, except the fine under Section 394(2) of Cr.P.C.

8. Learned counsel for the appellant has contended that the accused appellant was only a Second Division Clerk (SDA) and there is no work pending with him. Further, contended that the evidence of PW7, the complainant is not believable. There is a defect in the sanction granted by the employer. On these backgrounds prayed for setting aside the convictions. It is contended that the PW5 is sanctioning authority, issued the sanction as per Ex.P28, but he has admitted in the cross examination that DDPI was the disciplinary authority, therefore, the sanction is not correct. He also contended that the DDPI examined as PW3, that if any claim of reimbursement more than Rs.10,000/-, the application shall be forwarded to the Zilla Panchayath, CEO and DDPI is having no power and the application was pending in the office of the DHO - District Health Officer, therefore there is no work pending with the appellant.

9. It is also contended by the learned counsel that the PW2/shadow witness admitted that he has not seen anything for having paid the money by the PW7 to the accused, but the PW2 was not treated as hostile. Therefore, the evidence is insufficient which creates doubt, the benefit of doubt shall be extended to the appellant and prayed for allowing the appeal.

10. Per contra, learned special counsel supported the judgment and sentence passed by the trial court and contended that, the application was filed in the office of the DDPI and the same was issued by the appellant and it was seized from the office of the DDPI, there is a typographical error in the evidence of the PW2. Therefore, he cannot be treated as hostile. The PW7, also though turned hostile, his evidence can be acceptable. Hence, prayed for dismissing the appeal.

11. Having heard the arguments, perused the records, the point that arises for consideration are

"1. Whether the prosecution proves beyond reasonable doubt that the accused demanded and accepted bribe of Rs.2000/- from the PW7 for forwarding the medical reimbursement application of the complainant

2. Whether the judgment of conviction and sentence passed by trial court calls for interference"

12. On verifying the records, in order to prove the case the prosecution examined 9 witnesses. The PW7 is the complainant and he has given evidence that he has filed application for medical reimbursement before the DDPI office and the accused was clerk in the office. The application was filed but the same was not forwarded to the sanctioning authority and he has demanded Rs.2000/- as bribe for doing the work. Therefore, he lodged the complaint and he has identified the complaint as per Ex.P20. Subsequently, the police prepared the pre-trap panchanama, he has given four currency notes of Rs.500/- each. They smeared the powder and stated, at that time, except police there is no other person present. Then he along with police went near the DDPI office. He went to the DDPI office and given the money, later he gave signal, then the police seized the money. He has identified that the MO2 is tainted money and police took the photographs. He has not properly given evidence in support of the prosecution. Therefore, the PW7 treated as hostile and in the cross examination though he has admitted that he has handed over the money, but his evidence is doubtful as he has given evidence both in support of the prosecution as well as accused. He also not stated any statement before the police in respect of the fact, that the complainant not met the police after the complaint. He also admitted that if the claim amount is more than Rs.10,000/-, the sanction shall be made by the CEO of Zilla Panchayath but not DDPI. He further admits, at the time of filing of complaint there is no other person present and he do not know about the pre-trap demonstration made by the police. He also admitted that the accused have no authority to sanction the medical reimbursement. On perusal of the evidence of this witness, he has given different evidence in different stages. Therefore, without the corroboration of the independent witnesses his evidence is not acceptable.

13. The PW1/Bhaskar Reddy who is panch witness who speaks about preparing the panchanama registering the FIR and he accompanied the police for trap. However, PW2 who is the shadow witness, who accompanied the PW7/complainant, according to his evidence, the police prepared panchanama in the police station , they smeared the Phenolphtlene powder and they made the demonstration. Subsequently, he along with PW7 went to the office of the accused. He further stated that the police inspector, instructed him to watch the proceedings and report to him and he has accompanied PW7/complainant and he met the accused. The accused asked whether he has brought money, hence the complainant handed over Rs.2000/- to the hands of the accused, then the accused kept the money in the pant pocket. Then, both complainant and himself came out and intimated the police and the police trapped the accused.

14. In the cross examination, made by the learned counsel for the accused, this witness PW2 admitted that he came to know one Malappa medical encashment bill is pending and he knows that the accused has got power to sanction the medical advance. He has denied the suggestion that he has not seen when the accused demanded the bribe. But in the further cross examination, the PW2 categorically admitted as under:-

"The complainant not paid any amount, the accused not accepted any amount, I have not at all seen anything and I have not at all heard anything".

15. Learned counsel for the appellant has contended, the admission made by the PW2 clearly reveals, he has not seen when the accused accepting the bribe and he has not seen anything. Though learned counsel for the respondent contended there is error in the evidence etc., but the same was not brought to the court at the time of arguments before the trial court nor, at the time of evidence and once the admission made by the witness in the evidence against the prosecution and the prosecutor could have treated this witness as hostile and cross examined him. Therefore, the evidence of the PW2 is not trustworthy to accept as a corroboration evidence with the PW7, since PW7 also partly treated as hostile

16. As regards to the pendency of the work, it is admitted by the DDPI/PW3, that he has power to sanction only Rs.10,000/- towards medical reimbursement and above Rs.10,000/- the application shall be forwarded to the Zilla Panchayath and the application filed by the complainant was reimbursement for Rs.72000/- and ultimately the Zilla Panchayath CEO sanctioned the reimbursement. The evidence of this witness also reveals as per the Ex.P26, the application was before the DHO for certification. He has also admitted the letter produced and marked as per Ex.D1 by the learned counsel for the accused .

17. On perusal of the Ex.D1 which reveals the file belongs to the DHO which reveals as on the date of trap, the file went to DHO office, which clearly reveals that there is no work pending with the appellant as on the date of either accepting the bribe or demanding the bribe by the appellant, the Ex.D1 is the public document, pertaining to the medical reimbursement file which was in the custody of the DHO. Therefore, as on the date of alleged acceptance there is no work pending with the appellant.

18. The other witnesses are the PW5 who has issued the sanction order and the police witnesses. The PW6 engineer who prepared the sketch etc and the Investigating Officer are the formal witnesses. On careful perusal of the record and the evidence of PW2 and PW7, there is no corroboration of each other in respect of demand and acceptance by the appellant for demanding bribe of Rs.2000/- and acceptance of the bribe. The evidence of both witnesses were doubtful and therefore the evidence of PW2 and PW7 is not sufficient to prove the guilt of accused beyond reasonable doubt.

19. Therefore, the trial court ought to have given benefit of doubt and could have acquitted the accused. Therefore, I am of the view the trial court committed error in convicting the appellant where there is no sufficient evidence against appellant for having demand and acceptance of the bribe from the appellant from the evidence of the material witness especially PW2 and PW7. Therefore, the judgment passed by the trial court is liable to be set a side.

Accordingly, the appeal is allowed.

The judgment of conviction and sentence passed by the trial court in Spl.C.No.2/2015 passed by II Addl. District and Sessions Judge/Lokayuktha Sepcial Judge dated 29.12.2016 is hereby set aside. The appellant is acquitted for the charges levelled against him.

The appellant is already dead. Hence, the fine amount deposited by the appellant is ordered to be refunded to the legal representatives of the appellant.

Office to send the copy of the judgment and trial court records to the concerned court.