V. K. AGARWAL, J. ( 1 ) THIS appeal is directed against the conviction of the accused/appellant for offences punishable under section 161. I. P. C. and under section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act and sentenced for each of the above offence to R. I. for 1 year by judgment dated 24-10-94 in Special Case No. 4/88 by Special Judge, Jabalpur. ( 2 ) THE undisputed facts are that the accused/appellant Uma Shankar was the Chief Municipal Officer, Municipal Committee, Panagar, at the time of trap, which took place on 24-8-84. The complainant Member Prasad (P. W. 2) was a contractor and had obtained a contract for the digging and construction work of well in Vivekananda Ward of Panagar. The complainant Member Prasad (P. W. 2) in connection with the above work had deposited security amount, with Municipal Committee, Panager. It is also not disputed that on 24-8-84 two currency notes of Rs. 100/- were recovered from the possession of accused/appellant by the trap party led by Inspector (Vigilance) Subhash Kumar Mishra (P. W. 5) in the presence of Member Prasad (P. W. 2) and others. The present charge-sheet has been filed after duly obtaining sanction from the Government. ( 3 ) THE prosecution story in brief is that the accused/appellant was obstructing and resisting the refund of security amount of Rs. 600/- to complainant Member Prasad (P. W. 2) and had made illegal-demand of Rs. 200/- for the refund of the same. On feeling harassed complainant Member Prasad (P. W. 2) lodged a written complaint (Ex. P-2) addressed to Police Superintendent (Vigilance ). After receiving the complaint (Ex. P-2) Inspector (Vigilance) Subhash Kumar Mishra (P. W. 5) arranged for the trap. He called for the two currency notes of Rs. 100/- from the complainant Member Prasad (P. W. 2) which were got initialed by City Magistrate, Rajendra Sharma (F. W. 6 ). The said currency notes were treated with phenolphthalein powder and were kept in the upper pocket of the Kurta of complainant Member Prasad (P. W. 2) with the direction that he shall not touch those currency notes till he pays the same to the accused! appellant and that after making the payment, he shall give pre-arranged signal to the trap party. Inspector. Subhash Kumar Mishra (P. W. 5) prepared Panchnama (Ex. appellant and that after making the payment, he shall give pre-arranged signal to the trap party. Inspector. Subhash Kumar Mishra (P. W. 5) prepared Panchnama (Ex. P-3) regarding these initial steps taken towards the trap proceedings. ( 4 ) THE complainant Member Prasad (P. W. 2) and the trap party thereafter, went to the office of accused/appellant. At about 3. 30 p. m. the complainant Member Prasad (P. W. 2) want inside the office of accused/appellant and at about quarter past 4. 00 p. m. gave the pre-arranged signal upon which the trap party entered the office of accused/appellant. Inspector (Vigilance) Subhash Kumar Mishra (P. W. 5) caught hold of both the wrists of accused/appellant and thereafter his hands were dipped in the solution of sodium carbonate which turned pink. The said solution was sealed. On search two currency notes of Rs. 100/ - were recovered from the shirt worn by the accused/appellant and were seized. The number of currency notes seized from the accused! appellant tallied with the number of currency notes handed over to the complainant Member Prasad (P. W. 2) which were initialed by the City Magistrate. Rajendra Sharma (P. W. 6 ). The pocket of Tshirt of the accused/ appellant was also dipped in the solution of sodium carbonate which again turned pink. The said solution was also sealed. Final Panchnama (Ex. P-b) regarding the above trap proceeding was prepared. The documents, regarding the payment of running bills, etc. and those showing that the complainant Member Prasad (P. W. 2) had deposited the security amount were also seized. After completion of other usual formalities of investigation charge-sheet was filed. ( 5 ) THE learned Trial Court framed charges for offence punishable under section 161. I. P. C. as well as offence punishable under section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act, against the accused/appellant. The accused/appellant abjured guilt. After trial by the impugned judgment the learned Trial Court found that both the above charges have been proved beyond reasonable doubt against the accused! appellant and it has thereafter convicted and sentenced him as has been mentioned earlier. The accused/appellant abjured guilt. After trial by the impugned judgment the learned Trial Court found that both the above charges have been proved beyond reasonable doubt against the accused! appellant and it has thereafter convicted and sentenced him as has been mentioned earlier. ( 6 ) IT has been urged on behalf of the accused/appellant that there is no legal evidence in the case that the accused/appellant had made any illegal demand from the complainant Member Prasad (P. W. 2) and that the amount seized during the trap was a payment to him towards any such demand. Hence, it has been urged that no offence was made out against the accused/appellant. The learned Government Advocate for respondent/state has however, supported the finding of guilt and Judgment of the learned Trial Court. ( 7 ) AS pointed out earlier, it is an admitted position of the case, that the complainant Member Prasad (P. W. 2) had been granted a contract of digging of well and had deposited the security amount in connection with the above contract with the Municipal Committee, Panagar. It is also not in dispute that, on the date of incident. i. e. on 24-8-1984 two currency notes of Rs. 100/- each, initialled by City Magistrate, Rajendra Sharma (P. W. 6) and treated with phenolphthalein powder were handed over by the complainant Member Prasad (P. W. 2) to the accused/appellant in his office and thereafter Inspector (Vigilance) Subhash Kumar Mishra (P. W. 5) who lead the trap party had seized the two currency notes from the pocket of accused/appellant. The above facts are also proved from the statements of Sub hash Kumar Mishra (P. W. 5), City Magistrate. Rajendra Kumar Sharma (P. W. 6), Member Prasad (P. W. 2) and other evidence on record. ( 8 ) THE defence of accused/appellant is that the said amount of Rs. 200/- was paid to him by complainant Member Prasad (P. W. 2), by saying that the said amount was sent by Lady Member Magan Bai, of Municipal Committee, Panagar, for being paid to the accused/appellant. The accused/appellant in this connection has stated in his statement under section 313 Cr. P. C. that during the celebration of Independence Day, on 15th August, he had spent Rs. 200/- as desired by Lady Member Magan Bai, who had assured that, she would be refunding the amount to accused/appellant. The accused/appellant in this connection has stated in his statement under section 313 Cr. P. C. that during the celebration of Independence Day, on 15th August, he had spent Rs. 200/- as desired by Lady Member Magan Bai, who had assured that, she would be refunding the amount to accused/appellant. He accordingly accepted the amount from the complainant Member Prasad (P. W. 2 ). ( 9 ) IN view of the above admitted position and defence version, it would be relevant to consider the facts and circumstances leading to the payment of the above amount of Rs. 200/- to the accused/appellant by complainant Member Prasad (P. W. 2 ). ( 10 ) IN the above connection, complainant Member Prasad (P. W. 2) in his statement in Court has stated that when he requested for the refund of security amount of Rs. 600/- from the accused/ appellant the accused/ appellant had told him that Magan Bai had told the accused/appellant that, she would be getting the payment made to the accused/appellant by the contractor i. e. by complainant Member Prasad (P. W. 2 ). He has further stated that, Lady Member Magan Bai had told him that since the accused/appellant had spent Rs. 200/- from his pocket. Member Prasad (P. W. 2) should pay that amount to the accused/appellant and that Magan Bai would be returning that amount to the complainant Member Prasad (P. W. 2) later. The complainant Member Prasad (P. W. 2) further stated that thereafter, he went to the Vigilance Office and narrated the above facts. The Vigilance Officials told him that on the above facts no case is made out, but had told him that if he was very much annoyed, he should submit an application as instructed by them. Thereupon the complainant submitted complaint (Ex. P-2) as per instructions of the Vigilance Official Hanumant Singh. Thereafter, the trap proceedings were arranged and Rs. 200/- was paid to the accused/appellant. ( 11 ) IT is pertinent to notice that the complainant Member Prasad (P. W. 2) has categorically admitted that the accused/appellant had never demanded any illegal gratification from him and that he had paid Rs. 200/- to the accused/appellant by telling him that the amount was sent by Lady Member Magan Bai. It would, therefore, be crystal clear from the above statement of complainant Member Prasad (P. W. 2) himself that amount of Rs. 200/- to the accused/appellant by telling him that the amount was sent by Lady Member Magan Bai. It would, therefore, be crystal clear from the above statement of complainant Member Prasad (P. W. 2) himself that amount of Rs. 200/- was paid by him to the accused/appellant on being told to do so by Magan Bai and accused/appellant was also specifically informed by him at the time of payment that the complainant Member Prasad was paying the amount to the accused/appellant as per the directions of Magan Bai. Clearly therefore, from the above statement of Member Prasad, it would appear that there was no demand by the accused/appellant and the amount recovered from his during the trap proceedings was not paid to him in connection with his demand. ( 12 ) HOWEVER, the learned Trial Court has reasoned that since the complainant Member Prasad (P. W. 2) has admitted that his complaint (Ex. P-2) addressed to Superintendent Police, (Vigilance) was given by him and it was written in his handwriting, arid since in the said report (Ext. P-2) it has been mentioned that, the accused! appellant had demanded illegal gratification for the refund of security amount from complainant Member Prasad (P. W. 2), therefore, the complainant Member Prasad (P. W. 2) has concocted the story of refund of Rs. 200/- to the accused/appellant on the instructions of Lady Member Magan Bai, in order to save the accused,/appellant. It has also been pointed out in the impugned judgment by the learned Trial Court that the Lady Member Magan Bai, has not been examined by the accused/appellant, in support of his defence version. Therefore, the defence of payment of Rs. 200/- on the instruction of Lady Member Magan Bai was held as improbable by the Trial Court. It has also been stated by the learned Trial Court that, if illegal gratification would not have been asked for by the accused/appellant, the complainant Member Prasad (P. W. 2) would not have gone to the office of Vigilance and would not have taken the trouble to get the trap arranged against the accused/appellant. Therefore, discarding the stand taken in defence by the accused/appellant, it has held that the amount of Rs. 200/- paid by complainant Member Prasad (P. W. 2) was paid to the accused/appellant as illegal gratification as has been mentioned in the complaint (Ex. P-2), Panchnama as (Ex. P-3) and (Ex. Therefore, discarding the stand taken in defence by the accused/appellant, it has held that the amount of Rs. 200/- paid by complainant Member Prasad (P. W. 2) was paid to the accused/appellant as illegal gratification as has been mentioned in the complaint (Ex. P-2), Panchnama as (Ex. P-3) and (Ex. P-4) as well as the F. I. R. ( 13 ) THE learned Counsel for accused/appellant has challenged the above reasoning adopted by the learned Trial Court and has urged that there is no substantive evidence establishing that, the accused/appellant has demanded illegal gratification. He has also urged that the averments made in report (Ex. P-2) or other documents cannot be acted upon and cannot be treated as substantive evidence, as has been done by the learned Trial Court. The above contention appear to be correct and bears force and substance. ( 14 ) IT is clear from the statement of complainant Member Prasad (P. W. 2), as already pointed out, that the accused/ appellant had not made any illegal demand from him and that he had handed over the amount to the accused,/appellant by making a statement that the amount was sent by Magan Bai. In fact, this statement of complainant Member Prasad (P. W. 2) is also supported by the statement of City Magistrate, Rajendra Sharma (P. W. 6), who has admitted in para 3 of his statement stated that the accused,/appellant on the spot itself had stated that he has not accepted any illegal gratification and the same was accepted as it was sent by Magan Bai. In the circumstances there does not appear to be any illegal demand by the accused/appellant, therefore, the essential ingredient of demand of money from complainant Member Prasad (P. W. 2) is not disclosed. In view of the statement of complainant his report (Ex. P-2) cannot be read as substantive evidence as has been done by the learned Trial Court. Therefore, recovery of an amount from the possession of accused/appellant by itself, in the circumstances of the case, would not give rise to any presumption of it being illegal gratification as such. In view of the statement of complainant his report (Ex. P-2) cannot be read as substantive evidence as has been done by the learned Trial Court. Therefore, recovery of an amount from the possession of accused/appellant by itself, in the circumstances of the case, would not give rise to any presumption of it being illegal gratification as such. In the case of Sita Ram v. State of Rajasthan, it has been observed that on mere recovery of certain money from the person of an accused without the proof of its payment by or on behalf of some person to whom official favour was to be shown the presumption cannot arise. In the case of Suraj Mal v. State (Delhi Admn.), it has been observed that, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. Somewhat, similar question arose for consideration in the case of Suresh Kumar v. State of M. P. , wherein, it has held that: The further /question is whether mere recovery of the alleged tainted money from the possession of the accused gave rise to a presumption under section 4 (1) of the Prevention of Corruption Act, 1947 that the accused, unless contrary was proved by him accepted gratification for the purposes mentioned in section 161. I. P. C. ? The answer is that from mere recovery of money, divorced from the circumstances under which it was paid the presumption could not be raised. T ( 15 ) THEREFORE, in the instant case, recovery of sum of Rs. 200/- from the possession of accused/appellant would not give rise to any presumption in the absence of substantive evidence that there was any unlawful demand by the accused/appellant; In fact presumption, if any would stand rebutted by the categorical statement of complainant Member Prasad (P. W. 2) that the amount was not paid as gratification and that in fact no gratification was asked for by the accused/appellant and that he paid the amount on the false representation that the sum was sent by Lady Member Magan Bai. In the circumstances the report (Ex. P-2) or the F. I. R. could obviously be not treated as substantive evidence and the conviction could not have been based thereon. In the circumstances the report (Ex. P-2) or the F. I. R. could obviously be not treated as substantive evidence and the conviction could not have been based thereon. ( 16 ) THOUGH, it is true that the social menace of payment of illegal gratification deserves to be curbed and guilty punished, however, it has to be kept in mind that the principles of criminal jurisprudence shall have to be borne in mind while arriving at the finding of guilt. In the case of State of M. P. v. Nabi Bux, the Division Bench of this Court had quoted with approval the following observations:we are not unmindful of the paramount social importance of convicting the guilty; but when certain rules of adjudication have been prescribed, it is not for us to doubt their wisdom and to substitute for them calculated to uphold the conviction in our problematical efforts to reach the crimes. ( 17 ) IN view of the above, since there is no legal evidence in the case of demand of gratification and payment made in pursuance thereof, the offence cannot be held to have been proved in the instant case. Therefore, clearly the learned Trial Court had erred in acting on the averments of written report (Ex. P-2) and making use thereof as substantive evidence and it erred in holding that in view of the said report (Ex. P-2) the prosecution evidence especially the statement of the complainant Member Prasad (P. W. 2) that the accused/appellant never demanded any gratification has to be ignored and the allegations and averments made in the written report (Ex. P-2) have to be accepted. The finding has to be set aside, in view of the prosecution evidence led in the case. Thus, there being no legal evidence to hold that the accused/appellant demanded any gratification from the complainant Member Prasad (P. W. 2), it is held that the offences punishable under section 161. I. P. C. and under section 5 (1) (d) read with section 5 (2) of the Prevention of Corruption Act are not proved against the accused/appellant. The appeal, therefore, deserves to be allowed. ( 18 ) ACCORDINGLY, the appeal is allowed. The conviction and sentence imposed on the accused/appellant by the impugned judgment is set aside and he is acquitted of the said charges. His bail bonds shall stand discharged and he need not surrender to them. Appeal allowed. The appeal, therefore, deserves to be allowed. ( 18 ) ACCORDINGLY, the appeal is allowed. The conviction and sentence imposed on the accused/appellant by the impugned judgment is set aside and he is acquitted of the said charges. His bail bonds shall stand discharged and he need not surrender to them. Appeal allowed. .