Judgment ( 1. ) APPELLANT has preferred this appeal against the judgment dated 6-10-1990 passed by the Special Judge, Jabalpur, in Special Case No. 16 of 1984, convicting the appellant under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act and Section 161 of the IPC and sentencing him to rigorous imprisonment for two years with fine of Rs. 1,000/- on each count respectively. ( 2. ) ACCORDING to prosecution case, appellant was working as public servant on the post of Senior Clerk in Bill Department of Senior Divisional Personnel Office, South East Railway, Bilaspur, in the year 1984. Complainant Sukhchand (P. W. 2) was working as Fitter Grade-III at Karanji Railway Station. Sukhchand submitted an application for commutation of his leave during the period between 25-10-1981 to 19-6-1983. Because of his absence due to his illness he did not receive his wages, therefore, he moved the aforesaid application for grant of commuted leave and wages for the aforesaid period. On such application, appellant prepared the bill for Rs. 2032. 90 and referred it for consideration to higher officers. ( 3. ) IT is alleged that after about 1 and 1/2 month of filing the said application Sukhchand contacted the appellant, who demanded Rs. 200/- as illegal gratification for getting his bill passed. Sukhchand informed D. R. Tadaiya (P. W. 5) a Senior Clerk in the Loco Officer about the said demand. On 8-4-1984, Sukhchand and D. R. Tadaiya met the appellant in his office where he again made demand of Rs. 200/ -. On 11-4-1984, again complainant met appellant and expressed his inability to pay the amount of Rs. 200/-whereupon appellant agreed to accept Rs. 100/- at that time and remaining amount after some time. As complainant did not want to give bribe, he alongwith D. R. Tadaiya went to Lokayukt Office, Bilaspur and submitted a written complaint (Ex. P-17) to Assistant Development Commissioner. Assistant Development Commissioner referred the complaint to M. K. Hiradhar (P. W. 9), Inspector Lokayukt for necessary action. Inspector Hiradhar requested Commissioner to send two officers for assisting in the trap. Dy. Collector Smt. Rajni Uike and Naib Tehsildar Edward William (P. W. 4) went to Lokayukt Office. Inspector Hiradhar introduced Sukhchand and D. R. Tadaiya to aforesaid witnesses. Sukhchand admitted before them of having submitted the complaint (Ex. P-17 ). Inspector Hiradhar requested Commissioner to send two officers for assisting in the trap. Dy. Collector Smt. Rajni Uike and Naib Tehsildar Edward William (P. W. 4) went to Lokayukt Office. Inspector Hiradhar introduced Sukhchand and D. R. Tadaiya to aforesaid witnesses. Sukhchand admitted before them of having submitted the complaint (Ex. P-17 ). Inspector Hiradhar then conducted a demonstration about the use of phenolphthalein powder and solution of Sodium Carbonate before them and obtained a 100/- rupee note from Sukhchand. After noting down the number of aforesaid currency note he rubbed the note with phenolphthalein powder and kept the same in the pocket of Sukhchand asking him to hand it over to accused/appellant and cautioning him not to touch before delivering it to him and further to give a signal to the trap party after giving the bribe amount to the accused. He prepared primary panchnama (Ex. P-18) about the aforesaid proceeding. ( 4. ) ON 11-4-1984, Inspector Hiradhar, complainant Sukhchand, D. R. Tadaiya, Smt. Rajni Uike, Edward William, Inspector S. S. Gond and Head Constable Brij Bihari went to the D. P. O. Office at Bilaspur. D. R. Tadaiya and complainant Sukhchand were asked to go to the office of accused. Inspector Hiradhar, Edward William and two other police officials went behind them. Sukhchand and D. R. Tadaiya met accused in D. P. O. Office and went to railway canteen for taking tea alongwith him. On one table accused Sukhchand (P. W. 2) and D. R. Tadaiya (P. W. 4) sat whereas on a nearby table other members of the trap party sat. It is said that on demand by accused, Sukhchand gave phenolphthalein powder treated 100/- rupee note to him, which he kept in front pocket of his shirt. On receiving signal from Sukhchand, Inspector Hiradhar and other members of the trap party rushed to the place where accused was sitting and one Constable caught hold of his hand. When Edward William and Rajni Uike got the hands of accused washed with Sodium Carbonate solution, solution became pink. A 100/- rupee note was recovered from the pocket of accused and was seized. Inspector Hiradhar prepared Panchnama (Ex. P-10) of the trap proceedings. He seized the documents pertaining to the disputed bill and sent First Information Report to Lokayukt Office wherefrom the case was sent to CBI, Jabalpur for requisite investigation. A 100/- rupee note was recovered from the pocket of accused and was seized. Inspector Hiradhar prepared Panchnama (Ex. P-10) of the trap proceedings. He seized the documents pertaining to the disputed bill and sent First Information Report to Lokayukt Office wherefrom the case was sent to CBI, Jabalpur for requisite investigation. The solutions of Sodium Carbonate and phenolphthalein powder were sent to FSL for chemical examination. Sanction (Ex. P-23) for the prosecution of the accused was obtained from the Senior Divisional Personnel Officer of South East Railway and the charge-sheet was filed in the Court of Special Judge, Jabalpur. ( 5. ) LEARNED Trial Court framed the charges against the accused/appellant under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act and Section 161 of the IPC. Plea of accused was that of false implication. According to him, neither he demanded bribe from Sukhchand nor obtained or accepted the same from him. According to him, Sukhchand has submitted the bill of fake claims, which he did not send directly to the Accounts Office for payment without the approval of Divisional Railway Manager. Sukhchand wanted his bill to be recommended directly for the payment but he gave his comments mentioning facts in detail and sent it to D. R. M. Office, due to which he could not get the money. Being annoyed he concocted the false case against him. According to him, Sukhchand had planted the money in his pocket. ( 6. ) LEARNED Trial Judge relying upon the evidence of complainant Sukhchand (P. W. 2), D. R. Tadaiya, Clerk in the Railway Department (P. W. 5), Edward William, Naib Tehsildar and Inspector Hiradhar (P. W. 9) held that the accused had made the demand of illegal gratification from the complainant as a motive for passing his bill and had accepted and obtained the money by illegal and corrupt means abusing his position as public servant and convicted him for the offence under Section 161 of IPC and Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act. ( 7. ) SENIOR Advocate, Shri S. C. Datt, Counsel for the appellant submitted that the prosecution has not been able to prove the fact of demand of illegal gratification by the appellant. The evidence adduced by prosecution in this regard is discrepant and contradictory and unworthy of reliance. ( 7. ) SENIOR Advocate, Shri S. C. Datt, Counsel for the appellant submitted that the prosecution has not been able to prove the fact of demand of illegal gratification by the appellant. The evidence adduced by prosecution in this regard is discrepant and contradictory and unworthy of reliance. He submitted that from the evidence of Sukhchand itself it is apparent that the appellant had no occasion or motive to make the demand. It was not the part of official function of the appellant to pass the bill, his duty was only to prepare the bill, which he had already done before the date of occurrence. He submitted that the explanation given by the appellant is probable and has been substantiated by the facts revealed by the prosecution witnesses themselves as well as by the defence witnesses. He submitted that the judgment of conviction passed by the Trial Court deserves to be set aside. ( 8. ) ON the other hand, Mr. Jayant Nikhra, Counsel for the C. B. I. vehemently opposed the submissions made by learned Counsel for the appellant. He submitted that the evidence of complainant Sukhchand is reliable and has been corroborated by the evidence of D. R. Tadaiya, Edward William and Inspector Hiradhar. From their evidence, it has been amply established that the appellant had made demand of illegal gratification and had accepted and obtained the same. ( 9. ) ON a careful perusal of the evidence of complainant Sukhchand (P. W. 2), it is found that the Assistant Personnel Officer, Divisional Personnel Officer and Senior Divisional Personnel Officer were the Senior Officers of the appellant. A. M. E. or Senior D. M. E. had made their comments on the commuted leave application thereafter the application was to be sent to D. P. O. and then to Accounts Department, wherefrom the payment was to be made. The duty of the Bill Clerk was to prepare the bill of commuted leave and to present it before the concerned Officer. The bill could be prepared only when it was ordered by the concerned Officer. Sukhchand admitted that the accused had shown him his prepared bill and had informed that the bill was with the concerned officer. He admitted that this all had happened in the month of February, 1984, but thereafter he did not know as to what happened to his bill. Sukhchand admitted that the accused had shown him his prepared bill and had informed that the bill was with the concerned officer. He admitted that this all had happened in the month of February, 1984, but thereafter he did not know as to what happened to his bill. He did not contact Senior Officers in respect of his bill as he had already seen the prepared bill. Another important fact admitted by this witness is that he did not know as to what happened to his bill even till the time he appeared as witness before the Court, i. e. , till 20-4-1987. In Para 12 of his statement he disclosed that he had already come to know before 11-4-1984 that the accused had put up his bill and it was not his job to pass it. His job was restricted only to prepare and present it, which he had already done. In the light of above facts and circumstances, it is not possible to conclude that the appellant would have made repeated demand of bribe from him. In this regard evidence of R. L. Verma (P. W. 1), Senior Clerk in the Senior D. P. O. Office, who was posted in the same section of the office in which accused was posted is also significant. He proved documents Ex. P-3 and Ex. P-4, which are respectively the proposal for concurrence of investigation of arrear claims and a note-sheet with respect to the bill of accused Sukhchand. These documents were in the handwriting of accused. As revealed from the documents, the note-sheet and the bill were prepared in the month of February, 1984, Le. , much before the date of the incident. R. L. Verma deposed that after receiving the application from any person they collect the details and then put up the note-sheet before the departmental officers and proceed further according to the orders of officer. He deposed that complainant Sukhchand used to come to their office and used to talk to accused about his bill. Sukhchand had offered money to accused but accused had refused to accept it and had told him that his bill had already been sent to officers. He said that it was not the duty of accused to make the payments of bills. His evidence further renders it doubtful that appellant would have made any demand of bribe. ( 10. Sukhchand had offered money to accused but accused had refused to accept it and had told him that his bill had already been sent to officers. He said that it was not the duty of accused to make the payments of bills. His evidence further renders it doubtful that appellant would have made any demand of bribe. ( 10. ) SIMILARLY, on perusal of the evidence of D. R. Tadaiya (P. W. 5), Senior Clerk in Loco Shed, it is found that Sukhchand approached to him and asked him to inquire about his bill from the accused. When he asked about the bill, accused told him that the bill had already been prepared and sent to D. R. M. , but Sukhchand again came to him and complained that accused was not preparing his bill and was demanding Rs. 100/- for the same, thereafter he had gone with him to Commissioner Office where Sukhchand made a complaint. He categorically stated that the accused had never demanded money from Sukhchand in front of him. In Para 6 of his statement he admitted that it was not the function of accused to pass the bill, his duty was only to prepare it and to send the same to the office of D. R. M. When he alongwith Sukhchand had gone to accused, it was informed by the accused that the bill was sent to the Office of D. R. M. and he had shown the duplicate copy of the bill to him. ( 11. ) IN view of the aforesaid circumstances, I am of the definite opinion that the prosecution has failed to establish beyond doubt that the appellant had made any demand or had any motive to obtain illegal gratification from complainant Sukhchand. It also appears probable that the explanation furnished by accused in his statement under Section 313 of the Code of Criminal Procedure may be true. From the documents Ex. P-3 and P-4, it is established that the accused had sent the proposal and note-sheet in respect of the bill of Sukhchand to the office of the D. R. M. which created hurdle in the payment of his bill. It is apparent from the evidence of Sukhchand himself that ultimately he could not get the payment of his bill. P-3 and P-4, it is established that the accused had sent the proposal and note-sheet in respect of the bill of Sukhchand to the office of the D. R. M. which created hurdle in the payment of his bill. It is apparent from the evidence of Sukhchand himself that ultimately he could not get the payment of his bill. It is possible that the act of accused might have caused annoyance and grudge in the mind of complainant leading him to lay a trap for the accused to wreak vengeance. ( 12. ) SO far as the acceptance of 100/- rupee note by the accused is concerned, it has been stated by complaint Sukhchand (P. W. 2) that he and D. R. Tadaiya had gone to D. P. O. Office and other trap witnesses had followed them. When he and Tadaiya met the accused, he asked them to wait for some time and then insisted to go to canteen. They went to canteen and sat on a table. He deposed that when he asked about his bill then accused demanded money whereupon he look out 100/- rupee note and gave it to him which he kept in the pocket of his shirt and told that within 8-10 days his bill will be passed. Statement of Sukhchand with respect to demand of money by accused in the canteen is contradicted by witness D. R. Tadaiya, who in Para 4 of his statement said that accused had not demanded money from the complainant in the canteen. He admitted that he was with Sukhchand and accused, but he did not hear any talk between them about the money. In Para 6 also, he reiterated that accused had made no demand of money before him. ( 13. ) IN Surajmal v. Stale (Delhi Administration) AIR1979 SC 1408 , 1979 Crilj1087 , (1979 )4 SCC725 , 1979 (11 )UJ916 (SC ), Apex Court observed that: In our opinion, 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. ( 14. ( 14. ) THOUGH from the evidence of Sukhchand, D. R. Tadaiya, Edward William and Inspector Hiradhar it is established that the phenolphthalein treated 100/- rupee note was recovered from the pocket of accused during the trap yet it cannot be held proved beyond a reasonable doubt that the appellant had obtained money as illegal gratification or by corrupt or other illegal means by abusing his position as public servant in the absence of proof of circumstances under which the note was found in the possession of accused. ( 15. ) IN the absence of proof that the applicant accepted or obtained money by way of illegal gratification as a motive or reward for doing any official act, the offence under Section 161 of IPC cannot be held to have been made out. Similarly, charge for the offence under Section 5 (1) (d) of the Prevention of Corruption Act also fails. The word obtains in Section 5 (1) (d) of the Prevention of Corruption Act, 1947, connotes the idea of acceptance with an element of effort on the part of receiver. In the absence of proof of essential element of effort on the part of the accused or solicitation of payment of bribe -or extortion of the bribe by threat or coercion by abusing his position as a public servant, the public servant cannot be held guilty for the above offence. ( 16. ) IN the result, for the foregoing reasons the appeal is allowed, the judgment of conviction passed against the appellant by the Trial Court is set aside. Appellant is acquitted. His bail bonds stand discharged