JUDGMENT : B.P. Ray, J. - The Appellant in this appeal assails his conviction under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 for allegedly accepting illegal gratification. 2. Briefly stated the case of the prosecution is that the complainant (P.W.2) was a postal agent. For renewal of his agency, he had submitted an application to the Regional Director, National Savings, Cuttack where the accused was the L.D.C. dealing with the renewal file. It is further alleged when the complainant approached the accused, he demanded a sum of Rs. 1,000/-. The complainant being aggrieved reported the matter to the C.B.I. Consequently a trap was laid to detect the crime. On 02.11.1998 while the complainant was accepting the bribe he was caught by the C.B.I. After completion of the investigation charge sheet was submitted against the accused to stand the trial. 3. The accused-Appellant has taken the plea of denial and false implication. He has further pleaded that the complainant forcibly thrust the tainted notes into his pockets and fled away. He immediately reported the matter to the Regional Director. At the nick of time, the C.B.I. officials caught hold of him. According to him, he had never demanded nor accepted any bribe. 4. Prosecution has examined 9 witnesses. P.W.2 is the complainant, P.W.3 is the overhearing witness, P.W.4 and P.W.8 are the other members of the trap team. P.W.1 is the sanctioning authority, P. Ws.5,6 & 7 are the employees of the Office of the Regional Director, National Savings, P.W.9 is the Investigating Officer. Defence has examined two witnesses in support of his plea. 5. In a case of bribery two essential ingredients needs to be established by the prosecution with clear cogent and unimpeachable evidence. They are; (i) demand of bribe and; (ii) acceptance of the same to do any official favour. When these constituents are proved by the prosecution, recovery of tainted money would be an incriminating circumstance to bring home the charge. Unless the prosecution evidence discloses demand of illegal gratification and acceptance of the tainted money pursuant to the said demand, recovery of the money itself would not be sufficient to constitute an offence. Therefore, the Hon'ble Apex Court has held that mere recovery of money divorced from the circumstances under which the same was paid would not be sufficient to hold a person guilty of the offence. Therefore, the Hon'ble Apex Court has held that mere recovery of money divorced from the circumstances under which the same was paid would not be sufficient to hold a person guilty of the offence. With the aforesaid legal proposition, it is to be seen whether the prosecution could be able to prove its case. INDIAN LAW REPORTS, CUTTACK SERIES [2010] 6. P.W.2 in his evidence has deposed that on 22.10.1998 he had applied for renewal of agency in the office of the Deputy Regional Director, Bhubaneswar. On 28.10.1998 he could ascertain that the said application 349 has already been forwarded to the Office of the Regional Director, Cuttack. On the same day, he came to Cuttack and enquired about the matter. He has further stated that when he approached the accused he demanded Rs. 10,000/-for renewal of his agency. On 29.10.1998, the complainant again requested the accused, but he asked to pay the demanded amount. On 30.10.1998 when the complainant met the accused, he (accused) asked him to come on 02.11.1998 with Rs. 1,000/-. The complainant being aggrieved with the illegal demand reported the matter to the C.B.I., accordingly a case was registered. 7. Before appreciating the evidence of the complainant with regard to demand of bribe for processing the file for renewal of agency, it is to be seen as to whether the accused was entrusted with the work or not. There is no dispute that the accused was working as the Lower Division Clerk in the Office of the Regional Director, National Savings, Cuttack. The allegation of the prosecution is that on 28.10.1998, he was dealing with the file of the complainant. In this regard, prosecution has relied upon the evidence of P. Ws.6 & 7 who were the employees of the Office of the Regional Director. P.W.6 has not spoken a word that the application in question was entrusted to the accused. All that he has stated the application of the complainant was sent to the Diary Section for making entry and handing over the same to the accused. In the cross-examination, he has made a categorical statement that he had no personal knowledge when the application was handed over to the accused. All that he has stated the application of the complainant was sent to the Diary Section for making entry and handing over the same to the accused. In the cross-examination, he has made a categorical statement that he had no personal knowledge when the application was handed over to the accused. P.W.7-Junior Clerk of the said Office in her evidence has stated that the renewal application of the complainant was received in the Regional Office on 28.10.1998 and was entered in the Diary Register vide Entry No. 6339. According to the endorsement, the application was handed over to the Dealing Assistant, the accused, on the same day; Ext.15 is the relevant entry in the Diary Register at page-58. Strangely on verification of the relevant entry in the Diary Register, Ext.15, it is seen that there is no acknowledgement by the accused showing receipt of the application form on 28.10.1998. There is no other evidence to show that the application of the complainant was in fact handed over to the accused on 28.10.1998 and the same was pending with him since then. If the application of the complainant was not with the accused as alleged, the question of demand of bribe for processing the same on 28.10.1998, 29.10.1998 or on 30.10.1998 appears to be not correct. In such circumstances, lodging of F.I.R. by the complainant on 30.10.1998 is suspicious and the very genesis of the case is shrouded with mystery. Niranjan Parija v. Republic Of India [B.P. RAY, J. ] 8. The next question arises for consideration whether there was any demand of bribe. Apart from the fact that there is no evidence to show that the application was pending with the accused from 28.10.1998, as such 350 there was any scope/reason/justification for demand, the evidence of the complainant in this regard also does not inspire confidence. P.W.2 in his evidence has stated as follows: ......When I met the dealing Asst. Niranjan Parija, he told me that many postal agents are offering money for renewal and that I should pay at least Rs. 10,000/-for the renewal of my license. On 29.10.98 when I again went to the office of R.D., the Peon did not allow me entry, but when I went inside two Goondas caught hold of me and assaulted me. They asked me to produce the money. 10,000/-for the renewal of my license. On 29.10.98 when I again went to the office of R.D., the Peon did not allow me entry, but when I went inside two Goondas caught hold of me and assaulted me. They asked me to produce the money. The Regional Director told me that those persons have done proper things with me and saying so he left the office. When I met Dealing Asst. Niranjan Parija he again asked me if I have brought Rs. 10,000/-. I said I have not brought the money. I came away and again went to that office on 30.10.98. I met each and every person of the establishment of the R.D. On that occasion after bargaining Niranjan Parija told me that my matter would be considered if I pay Rs. 1000/-...... The aforesaid narration and sequence of events exhibit a story of concoction. Admittedly, the accused is not the authority to renew or disallow the same. The accused is mere a Clerk who could only put up the file for renewal before the appropriate authority. For the aforesaid work demand of Rs. 10,000/-appears to be too absurd. The allegation that on 29.10.1998 when the complainant went to the Office of the Regional Director two goondas caught hold of him and assaulted him is also ridiculous. Wherefrom the goondas came and assaulted and for what reason? It is also alleged that the Regional Director told him that those persons have done proper things. In spite of all these, the complainant did not lodge the complaint either on 28.10.1998 or on 29.10.1998. F.I.R. does not disclose the above accusation. Even if the allegations are considered on their face value, it reveals strong animosity against the Regional Director. On failure of the complainant to initiate any action against the Regional Director an imaginary story was put forth and the accused appears to have been made a scapegoat. 9. Evidence regarding demand and acceptance of bribe on the alleged date of occurrence is also obscure and is grossly deficient to substantiate the charge. The complainant (P.W.2) in his sworn testimony has stated that seeing him the accused came out of the office room and took him to the corner of an adjoining room. This corner was visible to the witness namely, P.W.3, who was there. There the accused asked him for Rs. The complainant (P.W.2) in his sworn testimony has stated that seeing him the accused came out of the office room and took him to the corner of an adjoining room. This corner was visible to the witness namely, P.W.3, who was there. There the accused asked him for Rs. 10,000/-, but he INDIAN LAW REPORTS, CUTTACK SERIES [2010] said that he had only Rs. 1,000/-. The accused asked him to give money. Accordingly, the complainant handed over the bribe amount. This part of the 351 evidence does not get corroboration from any quarters. P.W.3 who was deputed to overhear the conversation and witness the transaction is completely silent on this score. P.W.3 in his evidence has deposed that he did not see the passing of money nor he heard the conversation. The transaction is alleged to have been taken place on the corridor of the office where P.W.3 was present. Since he was specifically assigned the duty to overhear the conversation between the accused and the complainant and witness the transaction, had the same been taken place on the corridor as alleged, in all probability the witness would have seen the same. His specific denial regarding the demand and acceptance of bribe from the complainant completely belies the prosecution case. This witness has not been declared hostile. P.W.4 though claimed to have seen the transaction has presented a different story contradictory to that of other. He has stated that the complainant handed over the packet containing G.C. notes to the accused. The accused opened the envelop and counted the G.C. notes. This has not been deposed to by anybody. It is not the prosecution case that the money was put inside an envelop and the decoy handed over the same to the accused. The evidence of the C.B.I. officials who had taken part in laying the trap do not support the allegation. This itself proves that the witness has not seen the transaction at all and has developed the story of his own through imagination. No packet/envelop has been recovered and, therefore, the evidence of the witness need to be discarded as untrustworthy. The background facts and circumstances are not free from doubt. The evidence of the prosecution witnesses are shaky and not reliable as such, no implicit reliance can be placed. The evidence are contradictory to each other. No packet/envelop has been recovered and, therefore, the evidence of the witness need to be discarded as untrustworthy. The background facts and circumstances are not free from doubt. The evidence of the prosecution witnesses are shaky and not reliable as such, no implicit reliance can be placed. The evidence are contradictory to each other. Therefore, the allegation of demand and acceptance of bribe have not been established beyond reasonable doubt. 10. It is well settled in law that mere recovery of the tainted notes by itself would not be sufficient to hold a person guilty of accepting bribe. As already mentioned, demand and acceptance of bribe is not free from doubt. Therefore, it is to be seen whether the recovery of money is by way of acceptance of bribe or on account of any other cause. Acceptance of bribe means receipt of the money with consenting mind. If possession of money comes by way of accident or involuntary action, the same would not come within the mischief of the Section. The specific case of the accused is that the complainant thrust the money into his shirt pocket first when the same was protested the complainant again inserted some currency notes into the pant pocket and went away. Smelling foul play the accused immediately rushed to the office room of the Regional Director and narrated the incident to him. The Regional Director asked the accused to give in writing. At the Niranjan Parija v. Republic Of India [B.P. RAY, J. ] nick of the moment, the C.B.I. officials reached there and charged the accused to have accepted the bribe. P.W.1 in this regard has deposed that at about 12.30 P.M. the accused came to his office and told that the complainant forcibly thrust some currency notes to his pocket. Accordingly, he asked the accused to give his allegation in writing. This part of the evidence of P.W.1 fully corroborates the plea of the accused that he had not accepted the illegal gratification, but the same was thrust into his pocket pursuant to an evil design. If the money is forcibly inserted into the pocket of a person, the same cannot be termed as acceptance. Since the element of consent is conspicuously absent, recovery of the tainted money is no way incriminating and cannot constitute an offence. The plea of the accused is further fortified by the evidence of defence witness. 11. If the money is forcibly inserted into the pocket of a person, the same cannot be termed as acceptance. Since the element of consent is conspicuously absent, recovery of the tainted money is no way incriminating and cannot constitute an offence. The plea of the accused is further fortified by the evidence of defence witness. 11. Sanction for prosecution is vitiated for non-application of mind. P.W.1-the Sanctioning Authority has deposed that on receipt of the report of the S.P. and after perusal of other documents, he accorded sanction. The sanction order does not disclose what were the documents placed before him and he perused. The report of the S.P. has not been produced before the court. In the evidence also P.W. 1 has not disclosed what document he took into consideration before according sanction. According sanction is not an empty formality, but a sacrosanct act. Where it appears that the sanction suffers from the vice of total non-application of mind and the same has been passed mechanically, on mere asking the order is held to be wholly invalid. Reliance is placed on the decision of the Hon'ble Apex Court in the case of State of Karnataka V. Ameer Jan, reported in (2007) 38 OCR (SC) 568. Viewing any perspective the impugned judgment is not sustainable in law. Accordingly, the Criminal Appeal is allowed. No cost. Appeal allowed. Final Result : Allowed