J U D G M E N T This Appeal is preferred by the accused against the Judgment in C.C.No.11 of 1998 on the file of the Principal Special Judge for SPE & ACB Cases, Hyderabad. 2. The appellant was chargesheeted for the offences under Sections 7 and 13 (1) (d) read with 13 (2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’) for allegedly demanding and accepting Rs.750/- in pursuance of the earlier demand for doing official favour of giving proper treatment to the daughter of the complainant. 3. The appellant denied the charges and claimed for trial. The prosecution, in order to prove the guilt of the appellant, examined PWs.1 to 9 and marked Exs.P-1 to P-10 and M.Os.1 to 6. No witness was examined on defence side and marked Ex.D-1 a portion marked from 161 Cr.P.C. statement of PW-4. The lower Court, after considering the oral and documentary evidence, found the appellant guilty of all the charges and convicted him for the offence under Section 7 of the Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- in default to suffer rigorous imprisonment for one month. He was also convicted for the offence under Section 13 (1) (d) read with 13 (2) of the Act and sentenced to undergo rigorous imprisonment for one year and to pay a fine of Rs.500/- in default to suffer rigorous imprisonment for one month. The sentences of imprisonment were directed to run concurrently. The appellant, being aggrieved by the Judgment of the lower Court, dated 17-07-2001, preferred the present Appeal challenging its validity and legality. 4. The factual matrix leading to the conviction of the appellant is briefly as follows: The appellant was a Medical Officer, Community Health Centre, Bodhan, Nizamabad District, at the relevant point of time. The complainant, who was examined as PW-1, is a resident of Rudrur of Nizamabad District. Her pregnant daughter Smt. Gaini Savitri was admitted in Community Hospital, Bodhan on 12-02-1997 at about 12-00 noon. The appellant, being the Duty Doctor, examined the patient and confirmed that the child was dead in the womb and immediate operation is required. To take up immediate operation, the appellant demanded a bribe of Rs.2,250/- from the complainant. The complainant expressed her inability to pay the amount. The appellant, being the Duty Doctor, examined the patient and confirmed that the child was dead in the womb and immediate operation is required. To take up immediate operation, the appellant demanded a bribe of Rs.2,250/- from the complainant. The complainant expressed her inability to pay the amount. As the appellant insisted for payment of the bribe amount, she mortgaged her gold Gundlu for Rs.1,000/in the jewellary shop of PW-3 and paid Rs.1,000/- to the appellant as part of the bribe amount. Since then, the appellant has been harassing the complainant for payment of the balance amount of Rs.1,250/-. As there is no other way, the complainant paid Rs.500/- to the appellant by selling her silver patteelu in the shop of PW-3. Even after receipt of Rs.1,500/-, the appellant continued to harass the complainant for payment of balance bribe of Rs.750/for giving proper treatment to her daughter. As the complainant was not willing to pay the bribe amount to the appellant, she approached the D.S.P., A.C.B. and presented a complaint on 25-02-1997 at 10-00 AM. On 26-02-1997, the D.S.P. after following the procedure, after giving the instructions and after applying the phenolphthalein powder to the bribe amount, sent the complainant and PW-2 to the appellant. The appellant demanded and accepted Rs.750/-. Immediately, prearranged signal was given. The raid party came and the amount was recovered from the table under the pen stand. The sodium carbonate test conducted on the fingers of the hands of the appellant proved positive. The amount was recovered from him. After completion of the investigation, the A.C.B police laid the charge sheet. 5. The case of the prosecution is that the appellant demanded Rs.2,250/- towards bribe and after payment of two installments, he further demanded Rs.750/- and accepted the same, therefore, he is liable for punishment under the charges mentioned above, where as the defence of the appellant is that he never demanded and accepted the bribe and he received the amount towards treatment of the brother’s son of PW-1 who was suffering with fiver. In the post-trap panchanama, he stated that he received the said amount towards purchase of costly medicine for the treatment of complainant’s daughter. 6. In the post-trap panchanama, he stated that he received the said amount towards purchase of costly medicine for the treatment of complainant’s daughter. 6. In the light of the above contentions, the point for consideration is whether the prosecution proved the guilt of the appellant beyond reasonable doubt and whether the convictions and sentences imposed on him are liable to be set aside or modified? 7. PW-1 is the complainant. She did not support the prosecution version and turned hostile. 8. PW-2 is the accompanied witness who stated that PW-1 and himself went to Government Hospital in a rikshaw by about 12-30 PM on 26-6-1997. Both of them entered into the Government Hospital, Bodhan and they were informed that the appellant is not available and they can meet him in his private clinic situated nearby. They informed the said fact to the D.S.P. and on his instructions, both of them proceeded to the private clinic at about 12-00 or 12-30 PM. PW-1 and himself entered into the private clinic of the appellant. On seeing PW-1 the appellant enquired whether she brought the money. PW-1 gave the money to the appellant and the appellant took the money and kept it under the pen stand on his table. Immediately, he came out and gave the prearranged signal and the raid party reached the clinic. The sodium carbonate test conducted on the fingers of both hands of the appellant proved positive and they also handed over the tainted amount to the D.S.P. by taking it out under the pen stand. On verification of the numbers with pre-trap proceedings, the numbers on the currency notes are tallied. Thereafter, the complainant was called in and asked to state and whatever he stated was incorporated in Ex.P-3 post trap panchanama. The version of the appellant is also incorporated in it. He denied a suggestion that he connived with Shivaraj who brought this case against the appellant. 9. PW-3, a jewellary shop owner of Nizamabad deposed that on 12-02-1997, PW-1 approached him for selling gold gundlu and took Rs.1,000/-. Again on 15-02-1997, she sold silver patteda and he gave Rs.210/- to her. This witness was examined in support of the version of the prosecution that PW-1 sold the ornaments and gave part of the bribe amount to the appellant. 10. Again on 15-02-1997, she sold silver patteda and he gave Rs.210/- to her. This witness was examined in support of the version of the prosecution that PW-1 sold the ornaments and gave part of the bribe amount to the appellant. 10. PW-4 is the landlord of the building, in which the private clinic of the appellant is situated on a monthly rent of Rs.300/-. This witness did not speak anything about the scene of offence. 11. PW-5, the Deputy Civil Surgeon, Government Hospital, Bodhan, stated that on 12-02-1997, PW-1’s daughter was admitted in their hospital for delivery. The appellant operated her along with tubectomy on the same day. She was in the hospital till 03-03-1997 as inpatient. Later, she was referred to headquarters hospital, Nizamabad, as there were post orerative complications. 12. PW-6, the Judicial First Class Magistrate stated about his recording 164 Cr.P.C. statement from PW-1. 13. PW-7 mentioned about the sanction order issued to prosecute the appellant. 14. PW-8 one person by name G. Sivaraju, deposed that the complainant informed him that her daughter was admitted in the hospital for delivery and the appellant was demanding Rs.2,250/for treatment of her daughter. She paid Rs.1,500/- out of it and she has to pay another amount of Rs.750/-. She sought for his help in drafting the complaint. He drafted the complaint and handed over the same to the complainant to present to the D.S.P. A.C.B., Nizamabad. 15. PW-9 is the DSP who spoke about PW-1 presenting the complaint, laying trap against the appellant, recovering the amount, recording the pre-trap and post-trap proceedings etc. and after completion of the investigation, laying the charge sheet against the appellant. 16. P.W-1, who is the complainant, gave a different version. She stated that the appellant was a doctor in the hospital. He examined her daughter and performed operation for removing the dead child from the womb. Her daughter was in the hospital for fifteen days. The appellant was having a private clinic adjacent to the hospital. He took her daughter to the private clinic. The appellant informed her that for treatment of her brother’s son who was suffering with fever, they have to spend Rs.1,000/-. She informed PW-8 at the time of drafting of the complaint that the appellant demanded Rs.1,000/- for the treatment of her brother’s son. PW-8 gave Rs.750/- to the complainant. He took her daughter to the private clinic. The appellant informed her that for treatment of her brother’s son who was suffering with fever, they have to spend Rs.1,000/-. She informed PW-8 at the time of drafting of the complaint that the appellant demanded Rs.1,000/- for the treatment of her brother’s son. PW-8 gave Rs.750/- to the complainant. PW-8 asked her to pay Rs.750/- to the appellant for treating her nephew. Herself and another person went to the hospital at about 12-00 or 12-30 PM. The appellant was not present. They went to the clinic of the appellant and paid Rs.750/- to him. Later PW-8 and another person asked her to wait outside the private clinic. Thereafter, she left the clinic. She was declared hostile. She denied a suggestion that one mediator accompanied her to the clinic of the appellant and the appellant demanded Rs.750/- and she paid the amount towards bribe. She also denied a suggestion that after receiving Rs.750/-, the appellant counted the same and on the instructions of the appellant, she placed the amount on the table. She also did not support the version given before the Magistrate under Section 164 Cr.P.C. The Public Prosecutor did not confront her with reference to the contents of the statement and did not elicit any information though she stated that she was examined by the Magistrate and her statement was recorded. So, after excluding the version of PW-1, there remains the evidence of PW-2. PW-2 stated that on the instructions of the D.S.P., he followed PW-1. On seeing PW-1, the appellant enquired her whether she brought money. Thereafter, PW-1 gave the money to the appellant and the appellant took the money and kept it under the pen stand. Except this version, he did not mention whether it was towards bribe or for any other purpose. So, from the evidence of PW-2, the prosecution is able to establish that the appellant received Rs.750/- from PW-1 without knowing the purpose for which she paid the amount. He also denied a suggestion that he connived with PW-8 to bring out this case against the appellant as he was not giving treatment to the per-sons brought by him. 17. So, from the evidence of PW-2, the prosecution is able to establish that the appellant received Rs.750/- from PW-1 without knowing the purpose for which she paid the amount. He also denied a suggestion that he connived with PW-8 to bring out this case against the appellant as he was not giving treatment to the per-sons brought by him. 17. The learned counsel for the appellant submitted that at the time of payment of the amount to the appellant, two other per-sons were also present by name K. Malla Goud and U. Siddamma and the prosecution failed to examine those witnesses to speak whether the amount was paid towards bribe or any other purpose. 18. PW-9 stated in his evidence that on receipt of the prearranged signal, they all rushed into the clinic of the appellant who was sitting in a chair and two aged persons namely K. Malla goud son of Narasa Goud, aged 84 years and his wife Smt. U. Siddamma, aged about 65 years, resident of Bodhan were found sitting opposite to the appellant. But he has no explanation as to why those persons were not cited as witnesses and why they were not examined. 19. On analysis of the evidence, I am of the view that the prosecution failed to prove the demand of the money towards bribe. They also failed to prove that the appellant demanded bribe of Rs.2,250/- and further failed to establish the payment of Rs.1,000/- on 12-2-1997 and the payment of Rs.500/- on 15-2-1997 and the most important factor is that the alleged bribe amount was not paid in the government hospital and it was paid in the private clinic. The defence of the appellant is that the amount was paid by PW-1 towards treatment of her brother’s son in the private clinic, therefore, he is not liable to be convicted. 20. The learned Public Prosecutor submitted that though there is no evidence for demand of the amount towards bribe, there is evidence of PW-2 to the effect that the appellant demanded Rs.2,250/- in his presence, that the sodium carbonate test conducted on the fingers of both hands proved positive, that the tainted notes were recovered from the possession of the appellant i.e., under the pen stand. These circumstances are amply establishing that the appellant received the said amount towards part of the bribe demanded by him, therefore, he requested that the convictions and sentences imposed by the lower Court are based on sufficient evidence and they cannot be disturbed. 21. The learned Public Prosecutor in support of his argument, relied on a judgment of the Supreme Court in TARSEM LAL v. STATE OF HARYANA(1) wherein it was held that when money demanded was recovered from the accused for supply of copies of revenue record, no explanation was given by the accused at the time of search and recovery. Explanation given at trial that he received money for depositing it in the small savings scheme found to be an afterthought, therefore, the accused is liable to be convicted. 22. In the case covered by the above decision, the decoy supported the version of the prosecution. As there is sufficient proof for demand and acceptance of the bribe, the defence version which was given at the time of trial was not accepted. But in the present case, there is no proof of demand of bribe of Rs.2,250/and part payments to the appellant. 23. The lower Court, while discussing the evidence, observed as follows: “I am of the view that it is available in plenty. The most important witness in this case is P.W.2 who admittedly accompanied P.W.2 to the clinic of A.O. and witnessed the events that transpired there. He categorically stated in his evidence that when himself and P.W.1 went to the clinic of A.O., on seeing them the A.O. enquired P.W.1 whether she brought the amount and when she stated in the affirmative and gave the tainted amount of Rs.750/- to him, he received it and kept it under his pen stand. He also deposed about his giving signal by going out to the trap party and trap party coming inside, subjecting both hand fingers of A.O. to sodium carbonate solution test and the test yielding positive result and the DSP seizing the tainted amount etc., facts. This witness is a Deputy Tahsildar. At the relevant point of time he was working in Nizamabad, M.R.O. office. He has no enmity whatsoever with the A.O. It is not even the case of the accused also. As such, he has no reason to depose falsehood against another public servant. This witness is a Deputy Tahsildar. At the relevant point of time he was working in Nizamabad, M.R.O. office. He has no enmity whatsoever with the A.O. It is not even the case of the accused also. As such, he has no reason to depose falsehood against another public servant. His evidence discloses that even P.W.1 admitted the factum of her lodging Ex.P-9 report voluntarily with P.W.9 on 25-02-1997, when he and M.A.Hai, another mediator enquired her about the contents of Ex.P.9 report in Sugar Factory guest house. But the fact remains that Bhoomaiah was not with him and P.W.1, when they went to the clinic of A.O. No reference to Bhoomaiah has come in the conversation of A.O. with P.W.1. Hence, it cannot be said that the sum of Rs.750/- received by the A.O. is for something else i.e. for treating Bhoomaiah. It is not in dispute that Ex.P.3 second mediators report was drafted in the private clinic of A.O. itself by the members of trap party. If at all the amount of Rs.750/- represents the treatment charges of Bhoomaiah, A.O., would have stated it before the members of trap party which included two respectable mediators. But he did not do so. What he stated before them is that the sum of Rs.750/- was given to him by P.W.1 for purchasing costly medicines for the treatment of Savitri.” 24. The reasoning given by the lower Court indicates that the burden is kept on the appellant to prove his innocence than the prosecution to establish the case beyond reasonable doubt. It made reference to the complaint, the post-trap proceedings and the 161 Cr.P.C. statement etc. which are not substantive pieces of evidence to be relied on directly without the contents being reiterated by the witnesses in either of the statements. The lower Court further observed that there is no material placed to show that the Bhoomaiah was treated in the clinic and that the amount was paid towards treatment charges. The sale of jewellary also is not one of the circumstances in favour of the accused because the purpose for which they were sold was not mentioned by the witnesses. The lower Court also referred to the evidence of PW-8 and observed that his evidence makes it clear that even before him, PW-1 stated that the appellant demanded money for treatment of Savitri. The lower Court also referred to the evidence of PW-8 and observed that his evidence makes it clear that even before him, PW-1 stated that the appellant demanded money for treatment of Savitri. That cannot be accepted because it is not the version given by PW-1 before the Court and it is only hearsay evidence, which cannot be accepted. The lower Court further observed that there is no motive for PW-1 to implicate the appellant and there is nothing improper in PW-8 drafting Ex.P-9 to help PW-1. The lower Court further observed that the appellant failed to examine anybody to show that earlier he refused to treat the patients sent by PW-8 to his private clinic. 25. The learned counsel for the appellant submitted that the appellant is not expected to discharge his burden to prove his defence beyond reasonable doubt. It is sufficient if he creates a doubt in the mind of the Court to improbalise the prosecution version. He also cited a Judgment in PUNJABRAO v. STATE OF MAHARASHTRA(2) wherein it was held that: “It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability.” 26. From the evidence of the prosecution and the suggestions given by the defence, the appellant is able to create a doubt in the mind of the Court that whether the amount was given towards bribe or towards treatment of the patient in his private clinic. I am, therefore, inclined to give the benefit of doubt to the appellant. Therefore; I am unable to agree with the reasoning and finding given by the lower Court. 27. In the result, the Appeal is allowed. The convictions and sentence imposed on the appellant by the lower Court for the offences under Sections 7 and 13 (1) (d) read with 13 (2) of the Act are set aside. --X—