JUDGMENT Arun Kumar Goel, J. :- State has filed this "appeal against the judgment of Special Judge, Hamirpur dated 23,9.1991. By means of impugned judgment, respondent has been acquitted of the charges under Section 161 I.P.C. and Section 5(1)(d) of the Prevention of Corruptions Act. (hereinafter! referred to as the Act), Punishable under Section 5(1)(2) thereof. 2. As per prosecution case on 18.12.1986 at about 11-30 A.M. at village Balh, Tehsil Hamirpur respondent was posted as Patwari (Consolidation of I Bahl Circle). In his capacity as public servant in the consolidation Department f of H.P. Government, he obtained Rs.1000/- as gratification other than his legal remuneration as a motive/reward for doing. an official act of entering on the basis of Will from Shakti Chand (PW-8.) as also in his aforesaid capacity either by corrupt or illegal means or otherwise by abusing his position as a public servant obtained for himself Rs.100/- and thus committed the offence under Section 5(1} of the Act for which he was liable to be punished under Section 5(2) thereof. 3. Further case of the prosecution is that Shakti Chand, (hereinafter referred to as the complainant) is the son of Daroga Ram and his brother is Prem Chand (PW-6). Father of PWs 6 & 8 according to them, died on 13.11.1986 and he had executed a registered will (Ex. PH) dated 29.12.1980 In these circumstances Prem Chand-PW claims to have approached the respondent on 28.11.1986 for entering mutation on the basis of this Will in favour of both the brothers and according to him a bottle of Rum along with Rs.20/- was offered as gift to the respondent by the former. Complainant claims to contacted the respondent on a number of occasions, but was put off on one of the pretext of the other. Lastly, on 17.12.1986 respondent is stated to have in demand of Rs. 100/- as a bribe for entering mutation which was promised to be paid on the next day i.e. 18.12.1986. Further facts as revealed from the Prosecution case are that on 18.12.1986 complainant accompanied t Priihvi Singh and Bhagwa Dass (PW-9) contacted Chhaju Ram (PW-12) at v Riha who was then posted as D.S,P (Vigilance) and this witness was appraised about the demand made by the respondent. On the basis of statement recorded by the respondent vide Ex. PK. F.I.R. Ex.PK/1 was registered, at Police Station Anti Corruption Zone at Himarpur. On the basis of statement recorded by the respondent vide Ex. PK. F.I.R. Ex.PK/1 was registered, at Police Station Anti Corruption Zone at Himarpur. Two currency notes of the denomination of Rs.50/- were taken from the complainant and were treated with phenolphthalein powder and were handed back to the complainant for being passed on to the respondent and memo in this behalf was prepared vide Ex. PL. In addition to the above facts. PW-8 is further stated to have disclosed to Chhaju Ram Dy. S.P. that Kanungo Bhajan Lal had also demanded bribe of Rs.200/- for comparing the mutation that was to be entered by the respondent. In this background F.I.R. 20/86 relates to the present case whereas F.I.R. No.21/86 relates to the case that was registered against said Bhajan Singh Kanungo. 4. Bhagwan Dass (PW-9) was deputed as a shadow witness along with the respondent to accompany him as well as to give signal after the money had been passed by putting his hand on his head. Complainant was told to pass on the currency notes of Rs. 50/- each to the respondent. Accordingly, both complainant as well as Bhagwan Dass went to the office of the respondent when the former asked the respondent to do his work. At this point of time, respondent asked the complainant whether his work had been done or not. At this point of time the two currency notes E.\.P-1 and Ex.P-2 were passed on by the complainant which were put in the right pocket of his pant by the respondent. As already decided Bhagwan Dass gave a signal to the police and PW-Chhaju Ram alongwith other police officials reached the spot and caught hold of the respondent from his arm and brought him out in the Varandah. 5. On inquiry by PW-12, respondent informed that the currency notes had been forcibly but by the complainant in his pocket and he took out those and handed over to the D.S.P. Pocket as well as hands of the respondent were washed separately and when sodium carbonate solution was added to hand as well as pocket washed of the respondent, their colour turned pink. Both these washed were put into separate bottles packed and separately sealed with (Ex. PH) was produced by the respondent which was also taken into possession by the police. Both these washed were put into separate bottles packed and separately sealed with (Ex. PH) was produced by the respondent which was also taken into possession by the police. Hand as well as pocket washed of the respondent was sent to the General Forensic Science Laboratory. Chandigarh for examination and it was apmed that phenolphathalein and Sodium Carbonate were detected in both the bottles, this opinion was taken on file in evidence before the court before as Ex.PY.. 6. After receipt of report Ex.PY and after having recorded the statements of witnesses under Section 161 Cr.P.C. and taking on record other relevant documents as also after having obtained sanction under Section 6 of the Act, respondent was sent for trial before the court below wherein impugned judgment had been passed, hence this appeal. 7. Shri Negi. learned Assistant Advocate General, has urged that the learned court below has fallen into error while passing the impugned judgment and consequently acquitting the respondent. According, to Shri Negi, when statements of Prem Chand (PW-6)7 his brother Shakli Chand- complainant (PVV- 8). Bhagwan Dass (PW-9) and that of PW-12 arc read together, it was clearly established that the-prosecution has been able to bring home the guilt against the respondent and acquittal recorded cannot be sustained. On the other hand. Shri Thakur has strongly controverted the pleas urged by Shri negi and has pointed out that the basic ingredients of offenses for which his client was charged have not been made out. In this behalf Shri Thakur submitted that there is no evidence of demand having been made and unless it .was established, the clement of having obtained illegal gratification which is the basic ingredient of the offence for which his client is charged has not been made out. While supporting the judgment of. the trial court. Shri .Thakur pointed out that there is no evidence to show that any attempt was made to associate any independent or respectable witness to joint in the trap that was laid. Regarding the recovers of currency notes. Shri Thakur Pointed out that the version given by the respondent appears to be. reasonable and just which supports the defence , version also. Lastly, it was pointed out that this case has been cooked up by the complainant and his brother to falsely rope in the reason. Reason for the respondent being implicated, according lo Shri Thakur. Shri Thakur Pointed out that the version given by the respondent appears to be. reasonable and just which supports the defence , version also. Lastly, it was pointed out that this case has been cooked up by the complainant and his brother to falsely rope in the reason. Reason for the respondent being implicated, according lo Shri Thakur. was that his client was insisting to issue notice lo the sister of both. PW-6 and PW-8 whereas both of them were insisting that the mutation be entered as will as got attested in the absence of (heir sister and on refusal of the respondent to do so as well as to show their sister in the pedigree table annoyed both the brothers, hence this case. 8. Here a brief reference la the relevant provisions of Section 4 & 5 of the Prevention of Corruptions Act needs 10 be made :- S.4. Presumption where public servant accepts gratification other than legal remuneration (1) Where is any trial of an offence punishable under Sec. 161 or Sec. 165 of the I.P.C. (45 of 1S60). or of an offence referred to in clause (a) or clause (b) of sub-section (I) of Sec. 5 of this Act: punishable under sub- section (2) thereof, it is proved that an accused person has accepted or obtained, or has agreed to accept or attempted to obtain, for himself or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed !c accept or .attempted to obtain, that gratification or that valuable thing! as the case maybe, as a motive or reward such as is mentioned in the said Sec 161. or. as the case may be. without consideration or for a consideration which he knows to be inadequate . (2) Where is any trial of an offence punishable under Sec. 165-A of the Indian Penal Code (43 of 1860) or under clause (ii) of sub-section (3) of Sec. 5 of this Act. or. as the case may be. without consideration or for a consideration which he knows to be inadequate . (2) Where is any trial of an offence punishable under Sec. 165-A of the Indian Penal Code (43 of 1860) or under clause (ii) of sub-section (3) of Sec. 5 of this Act. it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed unless the contrary is proved that he gave or offered to give o attempted to give that gratification or that valuable thing, as the case may be. as a motive of reward such as is mentioned in Sec 161 of the IPC. 1860 at. as the case may be. without consideration or for a consideration u Inch he knows to be inadequates. (3) Notwithstanding anything contained in sub-section (I) and (2). the court may decline to draw the presumption referred to in either of the said sub-sections if the gratification or thing aforesaid is. in its opinion, so trivial that no inference or corruption may fairly be drawn." A Public Servant, is said to commit the offence of criminal misconduct : - (a)........................................ (b)...................................... (c)..........................,.......... (d) If he. by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecunicary advantage; (e)...................................... S.5(2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a terms which shall not be less than one year but which may extend to seven years and shall also be liable to fine : Provided that the court may. for any special reasons recorded in writing. impose a sentence of imprisonment of less than one year." In order to invoke the statutory presumtion under Section 4 supra of the Act, it is necessary to prove that the respondent obtained for himself or for any other person any valuable thing or pecuniary benefit. Once this is established, then on the basis of evidence if passing of the money is proved, the offence would be complete. 9. Before examining the respective contentions urged b> the learned •counsel for the parties, brief reference needs to be made to the prosecution evidence. Once this is established, then on the basis of evidence if passing of the money is proved, the offence would be complete. 9. Before examining the respective contentions urged b> the learned •counsel for the parties, brief reference needs to be made to the prosecution evidence. Complainant while appearing as PW-X has omitted material facts from being, stated in his statement under Section 154 Cr.P.C. recorded vide Ex PK. It has come in the statement that Prithvi Singh-Constable had met this witness who was a frequent visitor to his place. It was this constable from whom advice was sought by the witness after the demand of respondent had been explained. PW-8 has further gone on record to state that he accompanied by PW-9, his maternal uncle - Bhagwan bass and Prithvi Singh-Constable went to village Reeh where the polices was already present and the matter was narrated to Chhaju Rain D.S.P.; (PW-12). This witness has further gone on record to state that PW-9 as well as Prithvi Singh were sent as shadow witnesses. Admittedly. Prithvi Singh-Constable has not been examined what reason, has neither come in the statement of complainant nor in the statement of Chhju Ram (PW-12). In this behalf complainant has stated that Bhagwan Dass and Prithvi Singh-Constable had gone on 18.12.1986 to village Reeh and came across Chhaju Ram D.S.P. On the other hand, PW-12 states that Prithvi Sing-Constable had already been deputed to contact Shakti Chand. Another salient feature in this case is that PW-12 in his examination in-chief stated that:- . "On 17.12.1986 I received secret information through reliable sources that Prithvi Singh Patwari Consolidation Hailua Baht has demanded illegal gratification from Shakti Chand P.W. After apprising the Deputy Commissioner Hamirpur 1 got P.W. Moti Ram then D.R.O. Hamirpur associated with me. Next day i.e. on 18.12.1986 l alongwith P.W. Moti Ram, Inspector Munshi Ram and other officials of the Anti Corruption Unit left for village Reeh in the morning. In village Reeh, Prithvi Singh Constable had already been deputed to contact Shakti Chand aforesaid." However, in his cross examination he has stated "I had received the secret information on 17.12.86 in the afternoon. I did not record this information anywhere. In village Reeh, Prithvi Singh Constable had already been deputed to contact Shakti Chand aforesaid." However, in his cross examination he has stated "I had received the secret information on 17.12.86 in the afternoon. I did not record this information anywhere. I did not record the receipt of this information on 17.12.86 in my report U/S 173 Cr.P.C. I did not mention in the challan that 1 had deputed Prithvi Singh Constable alongwith the person who gave the information to got to village Bahl to consult the complainant." PW-8 in his statement has stated that "On my way to home Prithvi Singh Constable who generally visits my house and on that day was going back when he had not found me at home, met me at the distance of one K..M. from my house. After usual exchange of well beings when Prilhvi Singh Constable asked me from where I was coming at that time, 1 told him about the aforesaid demand of Rs.100/- by Prithvi Singh Patwari. ’When 1 sought his advice on the matter, he told me that he would do my job. Thereafter he went to his way and I came home. Next day at about 1 noon again said 11 or 11.30 A.M. Prithvi Singh constable alongwith my maternal uncle-Bhagwan Dass came to my house and asked me to accompany him to village Reeh where he had brought the persons of his Department." PW-9 Bhagwan Dass, who had signaled the police, has stated in his examination-in-chief :- "Thereafter Shakti Chand went to .Patwari Prithvi Singh who was sitting in the house of Jaind Ram which was near to the house of Bhagirath Similarly, Patwari asked Shakti Chand if he had brought the money so that he could get his work dons. Shakti Chand thereafter immediately took out two currency notes of Rs.50/- denomination and handed them over to Patwari prithvi Singh who put those treated notes in the right pocket of his pant." So far this witness is concerned, he has admitted that Shakti Chand complainant is his real nephew and witness is the maternal uncle His beings involved in corruption case is firstly denied but later on admitted PW-IU Moti Ram, retired District Revenue Officer has stated :- "I alongwith the police party stayed near Bhathhi of katha whereas Shakti Chand alongwith Bhagwan Dass and one Constable were sent to the accused with «he direction that as soon as Shakti Chand handed over the money to both the accused." 10. As per prosecution case respondent was apprehended from the office room where money was paid by the complainant. This part of statement of PW-12 has clearly identified the place, where-as per statement of PW-9 respondent was sitting in the house of one Jaind Ram. which was near lo the house of Bhagirath and to same effect is the statement of complainant. Neither Jaind Ram nor Bhagirath were associated or for that purpose any other person from the vicinity who can be termed as an independent and respectable person so as to show that the prosecution had acted in a fair and just manner In this behalf, it has come in the evidence that in the vicinity where raid was conducted. there are number of houses, but no one appears to have been associated cither in the process of recovery of currency notes Ex. P-l and P-2 as well as while laying the trap. It is .not a case where either independent witnesses were not available or when called upon people refuse to join. It may be appropriate to notice here that in- order to establish demand within the meaning of the provisions of the Act, it has to be read as obtaining the gratification by a person who is charged for sii.ch art offence. .Question, of obtaining illegal gratification would arise when it is also shown .that it was preceded by a demand and for that clear-cut evidence has to be led. Without the element of demand being there and its having been established clearly, mere recover of the money cannot be said to have been obtained as illegal gratification. 11. .Question, of obtaining illegal gratification would arise when it is also shown .that it was preceded by a demand and for that clear-cut evidence has to be led. Without the element of demand being there and its having been established clearly, mere recover of the money cannot be said to have been obtained as illegal gratification. 11. On account of non joining of independent witnesses the effect is that it impairs the credibility of the whole process adopted from the stage of laying trap till the recovery of the amount of alleged gratification. Unless it was shown that the money had been demanded and as a consequence thereof it was passed on by the person on whom such demand is made by a public servant, a conviction cannot be based. PW-8 in this behalf has only said that when he went lo the respondent latter-told him that officers had visited the place and farmers job could be done if complainant docs his work when the sum ofRs.100/- vide Ex. P-l and Ex.P-2 is stated to have been passed on In the complainant lo the respondent. This is no case can be termed as a demand haying been made. On; this material aspect PW-X is contradicted the statement of the shadow witness and his maternal uncle. Bhagwan Dass (PW-9). In this view of the matter, it cannot be said that there is any legal evidence so as to hold the respondent guilty. For taking this view reference can usefully, be made in AIR 1976 S.C. 91 Raghubir Sipgh vs. State of Punjab: 1990(1) Chandigarh Law Reporter 225, State of Himachal Pradesh vs. Tej Ram Patwari and 1992 Criminal Law Journal 608 Ayyasami vs. State of Tamil Nadu. 12. In the face of the aforesaid position it is held that for want of joining independent witnesses prosecutirin case was rightly rejected by die Court below and the findings in that behalf are upheld. Now coming to the question of demand pursuant whereto respondent is stated to have obtained by corrupt or illegal means or by otherwise abusing his position as public servant and thus having obtained for hi in self 4 sum of Rs. 100/- as already noticed that there is no evidence to hold that any demand was made b\ the respondent from the complainant. 100/- as already noticed that there is no evidence to hold that any demand was made b\ the respondent from the complainant. Detailed reference has been made to the statements of complainant, shadow witness PW-9 Bhagwan Dass as well as to that of Chhaju Ram US P (PVV-12). In the face of this position it cannot be said with certainty and further in the absence of acceptable and clinching evidence to prove that the demand of bribe was made by the accused, i.e. -respondent in the present case and he accepted the amount as a motive/reward from doing official act or for showing favour in his official function, rejection of the prosecution case in this behalf deserves to be upheld and it is ordered accordingly. For taking this view reference can usefully be made to two decisions of the Honble Apex Court reported in 1990(1) Crimes 609, State of U.P. vs. Ram Asrey and 1991(1) Crimes 196 S. V. Kameshwar Rao and another vs. State, as well as to the observations of this court in the case of State of H.P. vs. Tej Ram Patwari (supra). 13. In the context of the present case when a reference is made to the defence put forth by the respondent, it also appears to be plausible if not fully proved. Reason for accepting the defence version is that in case the Will (Ex. PH) was genuine, there was not occasion for the insistence on the part of the complainant to enter the mutation in favour of both brothers i.e. PW-6 and PW-X as also non inclusion, of their sister is the pedigree table. Here answer to question No. 27 given By the respondent in his statement under Section 313 Cr.P.C. needs to be referred to :- Q.27 "What else do you want to say ? Ans. lam innocent. The witnesses have deposed falsely and have falsely implicated in the case. One day prior to the case. PW. Shakti Chand met me in the way and after showing me the registered Will he requested me to enter the mutation on the basis of the same. After perusal of the Will 1 told. him that his sister had to be informed and to be shown in the pedigree table since both the attesting witnesses were not local residents and to me the Will appeared to be suspicious. However. After perusal of the Will 1 told. him that his sister had to be informed and to be shown in the pedigree table since both the attesting witnesses were not local residents and to me the Will appeared to be suspicious. However. Shakti Chand insisted that 1 should enter the mutation without informing Giani Devi his sister to which I did not agree and as such he nursed grudge against me and falsely implicated me. I never demanded bribe from him." 14. In view of the aforesaid discussion it cannot be said that prosecution has been able to bring home the guilt simply on the basis of recovery of treated currency notes Ex.P-1 and Ex.P-2 from custody of the respondent, because it has come in the statement of PWs 8 and 12 that the respondent was caught hold from his wrists as also respondent himself had explained that this money was forcibly put in his pocket and he had taken it out from his pocket and then handed over two currency notes to D.S.P. In this entire process his hands having got stained with the powder with which currency notes had been treated is not completely ruled out. So on this count also prosecution case again fails. 15. Consequent to the aforesaid discussion, there being no merit in the present appeal the same is hereby rejected. Respondent is on bail, his personal and surely bond is discharged.