JUDGMENT:- This is an appeal filed by the convict under Section 374 of Criminal Procedure Code. 2. The appellant is charged for the offence punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 of the Prevention of Corruption Act, 1988, and has been convicted for the offence under Section 7 thereof and is sentenced to suffer R.I. for one year and to pay a fine of Rs.1500/- (One Thousand Five Hundred Only), in default to suffer R.I. for two months. He has been further convicted for the offence under Section 13(1)(d) read with section 13(2) thereof and is sentenced to suffer R.I. for three years and to pay a finE of Rs.2,000/- (Two thousand only), in default to suffer R.I. for six months. 3. The prosecution story in brief is that Shankarlal Agrawal of Kamptee, a rice dealer had to deliver 337 bags of 50 kg each of Rice worth Rs.1,63,000/- to Maheshwari Brokers Pune. He therefore engaged Adarsh Road Transport to provide a truck to transport the rice bags. The Transport Operator provided the truck of one Shadatali (Accused in Crime No.209 of 2000 registered under Section 406 of the Indian Penal Code of Kamptee Police Station). The said crime No.209 of 2000 was registered as the said truck operator had misappropriated the goods delivered for transport by Shankarlal Agrawal. Furtherance to the said crime No.209/2000, Shahadat Ali was arrested. It is alleged that the present appellant recovered from the complainant an amount of Rs.15,000/- on the ground that Shahadat Ali should not be tortured. However, out of the said amount of Rs.15,000/-, an amount of Rs.8,000/- was shown as muddemal money recovered from Shahadat Ali. 4. It is then alleged that the accused again demanded Rs.5,000/- for keeping loopholes in the case against Shahadat Ali and for not prolonging Police Custody Remand. It is alleged that this amount was agreed and reduced to Rs.2,000/-. The report was lodged by Jakirkhan to the Anti Corruption Bureau aggrieved by said demand of Rs.2,000/-. Ultimately, raid was conducted, the appellant was caught, charged, tried and convicted. 5. The prosecution has examined in all 11 witnesses. (a) PW-l Sudhakar Shyamraoji Dhoke is the Police Head Constable who has deposited sealed bottles in CA Office. The report was lodged by Jakirkhan to the Anti Corruption Bureau aggrieved by said demand of Rs.2,000/-. Ultimately, raid was conducted, the appellant was caught, charged, tried and convicted. 5. The prosecution has examined in all 11 witnesses. (a) PW-l Sudhakar Shyamraoji Dhoke is the Police Head Constable who has deposited sealed bottles in CA Office. (b) PW -2 Vi las Dasrath Kante is the Police Constable in Anti Corruption Bureau Nagpur who has submitted complaint of ACT to Lakadganj Police Station. (c) PW-3 Jakirkhan Anwarkhan is the complainant. (d) PW-4 Sri pad Balwantrao Khode is the panch witness. (e) PW-5 Sunil Dharma Ramanand is the Superintendent of Police who accorded sanction to prosecution. (f) PW-6 Shahadatali who is the witness in this case who was arrested in Crime No.209/2000. (g) PW-7 Vinod Falgunrao Patole is the Police Inspector who has investigated the crime no.209/2000 u/s 406 IPC. (h) PW-8 Sayyad Nizamuddin is the driver who was working in Nanded Prabhani Roadways. (i) PW-9 Anil Wasudeorao Bobade is the Dy. Superintendent of Police Office who has investigated the whole case. G) PW-10 is Sunil Shankarlal Agrawal. 6. In support of the appeal, learned Advocate Mr. Mardikar has argued following points: (a) Panch witnesses are not independent witnesses and are habitual police witness. (b) The prosecution has failed to prove that the amount paid was towards the gratification. (c) The defence suggested by the accused was that amount of Rs.3,000/- was paid towards the expenses for petrol for taking Maruti Van to arrest the accused Ramesh Saboo purchaser of misappropriated goods. (d) Demand of amount by the accused towards illegal gratification is not proved. (e) Therefore, in such circumstances. the accused was not liable to be convicted. 7. Perused the record. 8. Heard learned APP in reply. 9. Crucial witnesses are PW-3 lakirkhan the person who lodged the report (Exh.16), PW-4 is the panch witness. PW-5 is the witness who proved the sanction, PW-6 Shahadat Ali who was arrested in Crime No.20912000 registered by Police Inspector Shri. Vinod Patole and PW-10 Sunil Agrawal. 10. After appreciation of the evidence, learned Special Judge has recorded a finding which can be extracted from various parts of the judgment as follows: "The written explanation of accused is produced along with case diary. That explanation given by accused that amount was thrusted in his pocket. 10. After appreciation of the evidence, learned Special Judge has recorded a finding which can be extracted from various parts of the judgment as follows: "The written explanation of accused is produced along with case diary. That explanation given by accused that amount was thrusted in his pocket. Thus, defence of accused that amount of Rs.2.000/- was given to him by complainant for petrol expenses is after through. Said defence was not disclosed at the time of trap. Even if defence of the accused is accepted that amount of Rs.2,000/- was given by complainant for petrol expenses Shahadatali could be co-accused in this case in Crime No.209/2000. Accused was assisting investigation in said crime. Therefore, he had no legal authority to demand amount of Rs.2.000/- towards petrol expenses. If amount received by accused from complainant was not legal or authorized as per law it becomes illegal remuneration. In case of Mohmoodkhan Mahboobkhan Path an Vs. State of Maharashtra, reported in 1997(1) Crimes 186(SC). The defence of accused that amount of Rs.2.000/- was received by him towards petrol expenses as after thought. Thus, the evidence on record is not sufficient to establish that amount of Rs.15.000/- was paid by complainant PW3 as illegal gratification to accused. But evidence of PW-3. 4 is clear that amount of Rs.2.000/- was paid by complainant to accused for filing charge-sheet at earliest and keeping loop holes in the case. Accused is not disputing Rs.2,000/- from complainant but his defence is that he had received said amount towards petrol expenses for going to Nanded. For the reasons discussed above, defence of accused is not acceptable, therefore, prosecution has proved that accused received amount of Rs.2.000/- as illegal gratification from complainant and thereby committed offence U/Sec.7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act. 1988. [Quoted from 199,204,205,206 of appeal paper book] 11. It is thus, seen that on the ground that the amount of alleged illegal gratification was recovered from the accused he is held guilty. 12. Crux of the case is the demand of bribe, which has to be necessarily proved from the evidence of the complainant and witness if any. 13. Admittedly, the demand is sought to be proved from testimony of lakirali Khan PW-3. 14. 12. Crux of the case is the demand of bribe, which has to be necessarily proved from the evidence of the complainant and witness if any. 13. Admittedly, the demand is sought to be proved from testimony of lakirali Khan PW-3. 14. No other witness or panch witness were shown to be present according to the prosecution at the time of demand of alleged amount of illegal gratification by the accused. It is, therefore, necessary to test what PW -3 stated as regards demand of illegal gratification. 15. After giving entire narration of demand of amount and settlement, first panchanama etc. PW-3 lakarali Khan states in paragraph No.2 as follows: "From ACB Office I and Shahadatali came to our transport Office by motorcycle. Other persons came to transport office by jeep. I, panchas were sitting in transport office. ACB Officer and staff were staying outside. ACB Officer told me not to give amount till its demand. Accused came to my transport Officer around 10.30 a.m. I told accused that amount of Rs.2.000/- was arranged as per his say. On that accused said he wants amount of Rs.3,000/-. I told accused that as per his say amount of Rs.2,000/- was arranged. Amount of Rs.3,000/- could not be given to him. On that I given amount of Rs.2,000/- to accused. I told accused that I had no more amount, I could arrange only Rs.2,000/-. Accused kept amount in pocket of his pant. I given amount to accused only after his demand. After giving amount as per direction of ACB Officer I taken out my cap from my head and given signal" [Quoted from page 53 of appeal paper book] 16. In the cross-examination, this witness states about the purpose for which the amount was paid according to him as follows: "The amount was given to accused for not taking PCR. PI Patole had given to accused for not taking PCR. PI Patole had taken PCR of accused till 24-7-2000. I do not know whether Ramesh Saboo had applied for anticipatory bail in Sessions Court, Nagpur and then to High Court Bench, Nagpur. On 14-9-2000 accused had come to our office in search of Ramesh Saboo. I do not know whether on 14-9-2000 PSI Dodke and accused had attended High Court. Nagpur along with case diary for submitting really in the application. On 159-2000 we decided to submit complaint against accused for trap. On 14-9-2000 accused had come to our office in search of Ramesh Saboo. I do not know whether on 14-9-2000 PSI Dodke and accused had attended High Court. Nagpur along with case diary for submitting really in the application. On 159-2000 we decided to submit complaint against accused for trap. I had submitted complaint to ACB on 14-9-2000. Shahadatali was requesting that chargesheet against him be filed at the earliest. I do not know whether accused told Shahadatali that charge-sheet could not be filed unless all accused attended. I do not know whether accused was not competent to submit charge-sheet. I do not know whether charge-sheet was filed by PI Patole. I do not know whether Shahadatali told accused that Ramesh Saboo had not come on 14-9-2000, he should be arrested at Nanded. I do not know whether amount of Rs.2.000/- was demanded by accused for petrol expenses for going to Nanded in car of Sunil Agarwal. I cannot say whether constable Ingle and Borkar came to my Office at 1.30 p.m. on 15-9-2000. In the evening of 14.9.2000 accused and PSI Dodke had come to my office, in search of Raesh Saboo. It did not happen that on 159-2000 at 3.30 p.m. Shahadatali and Ingle constable called Sunil Agrawal and accused to my office. On 19-9-2000 police recorded my statement. I did not tell that HC Kathane had come to my office at 3.30 p.m. on 15.9.2000. Portion marked 'A' from my statement, now read over to me, is incorrect. I did tell police that on 15-9-2000 at 1.45 p.m. driver of Sunil Agrawal and Constable Ingle had come to my officer and I introduced them panch as Khurshidbhai to them." [Quoted from page 56 & 57 of appeal paper book] 17. This witness was also given a suggestion about the said amount of Rs.2.000/ - being paid towards petrol expenses. "It is not true that Shahadatali told me to give Rs.2.000/- to the accused for petrol expenses". [Quoted from page 57 of appeal paper book] 18. It is seen from the testimony of PW-I0 Sunil that Ramesh had filed an application for anticipatory bail in the Sessions Court and then in the High Court. Shahadatali wanted that Ramesh Saboo be arrested. [Quoted from page 57 of appeal paper book] 18. It is seen from the testimony of PW-I0 Sunil that Ramesh had filed an application for anticipatory bail in the Sessions Court and then in the High Court. Shahadatali wanted that Ramesh Saboo be arrested. In the cross-examination, PW-10 has admitted that if Ramesh Saboo was to be arrested, Shahadatali should be paid expenses and suggested that the amount be given to him, his driver or the accused. The version of this witness seen in his cross-examination reads as follows: "2...............................................1 had talked with Sahadali accused had talked with him. Sahadali did tell me on my Mobile that if it was required to go to Nanded I should give expenses for it. Witness says that he told Sahadali that he will have to incur expenses amount of Rs.2.000/- is required for it. I told Shahadatali that amount be given to my driver or to accused. Constable Ingole and Borker were sent to my driver to Nanded Parbhani Guarage for arrest of Sabu. I taken accused on motor cycle and dropped near Motor Pump near Guarage of Sahadali. I told accused to inform what is decided who was going to Nanded. After reaching to Kamptee I had talk on my mobile with accused." [Quoted from page 158 of appeal paper book] 19. It is seen from the testimony of PW -7 Vinod Patole that he was working as Police Inspector at Kamptee and he was the Investigating Officer. He had sent ASI Nabim, accused and other staff to Nanded with proprietor of Adarsh Road Ways. He states that the accused had arrested Shahadatali and produced before him. 20. From the portion quoted in foregoing paras 14. 15 & 16, which are from testimony of PW -3, it is clear that:- (a) PW-3 does not know the purpose for which the amount was paid. (b) It is suggested that the amount was paid for expenses and petrol for travelling to arrest Ramesh. (c) Accused did not demand the amount. (d) The accused did not demand those amount as illegal gratification. 21. PW -7 has not stated that the accused was incharge of investigation, not he suggests or proves that the accused was authorized or entrusted the duty to arrest Ramesh Saboo. All that this witness proved is that he himself was incharge of the investigation and Shahadatali was arrested by the accused. 22. 21. PW -7 has not stated that the accused was incharge of investigation, not he suggests or proves that the accused was authorized or entrusted the duty to arrest Ramesh Saboo. All that this witness proved is that he himself was incharge of the investigation and Shahadatali was arrested by the accused. 22. It is seen that learned Special Judge has dealt with the judgment in case of Mohmoodkhan Mahboobkhan Pathan Vs. State of Maharashtra, 1997(1) Crimes 186 (SC) : [1997 ALL MR (Cri) 1608 (S.C.)]. However, disregarded the dictum therein that if the amount paid is to be an offence, the prosecution has to prove that it was paid by way of gratification. 23. The aspect dealt with by the Hon'ble Apex Court in paragraph 7 of the judgment is totally disregarded by the learned Special Judge. 24. It is also seen that the aspect of proof of demand by the accused is totally ignored. The nature of explanation to be offered by the accused was in the nature of raising preponderance of probabilities of evidence, only and nothing more. 25. If the evidence of the complainant PW -3 and PW -10 is read together, it would be clear that the amount of Rs.2,000/ - was required to be paid towards the petrol expenses and the accused was simply to collect it. 26. It is also seen that PW -7 was the Investigating Officer. No official duty was specifically assigned to the accused by PW -7, and the accused was not performing any official duty or function for which it may be said that he demanded money by way of illegal gratification. 27. In view of the judgment of the Hon'ble Apex Court in case of Mohmoodkhan Mahboobkhan Pathan that unless it is proved that the amount was paid by way of illegal gratification, an offence under Prevention of Corruption Act is not attracted. The prosecution has to prove that : (a) the amount was demanded by the accused; (b) it was towards the illegal gratification; (c) it was accepted by him and (d) its recovery was done from the accused. 28. In the present case, the demand of money being towards the gratification is not proved. It is also not proved that the amount was demanded towards performance of official duty and was not towards legal remuneration and was towards gratification. Moreover, the very demand is not proved. 28. In the present case, the demand of money being towards the gratification is not proved. It is also not proved that the amount was demanded towards performance of official duty and was not towards legal remuneration and was towards gratification. Moreover, the very demand is not proved. Thus, the judgment and the order of conviction of sentence cannot be sustained. 29. In the result, appeal is allowed. The judgment and order of conviction and sentenced is set aside, and the appellant is acquitted of all charges. Fine amount deposited by the accused be refunded. Appeal allowed.