JUDGMENT : B.P. Ray, J. - Appellant has preferred this appeal assailing the judgment and order of conviction u/s 7/13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and sentence dated 26.9.2007 passed there under by learned Special Judge (Vigilance), Cuttack to undergo R.I. for a period of six months and to pay a fine of Rs. 1000/- in default to undergo further period of one month for offence u/s 7 of P.C. Act and to undergo R.I. for a period of one year and to pay a fine of Rs. 1000/- in default to undergo R.I. for a further period of one month for offence u/s 13(2), P.C. Act. The sentences are to run concurrently. 2. Briefly stated the case of the prosecution is that the complainant (P.W.6) was working as P.E.T. in Gababasta High School which comes under the jurisdiction of C.I. of Schools, Cuttack. For release of his arrear salary, he approached this Court. Despite the order, arrear dues were not released and accordingly, a contempt application was lodged. During its pendency the complainant approached the accused who was a clerk in the office of C.I., Cuttack. The appellant however demanded a sum of Rs. 1000/- as gratification for the work. The accused being aggrieved reported the matter to Vigilance, who laid a trap to detect the crime. On 3.12.2003 the appellant was caught red handed while accepting the bribe. 3. The learned Special Judge, Vigilance, Cuttack on consideration of the evidence adduced by the prosecution held him guilty of the offence under Sections 7/13(2) of the Prevention of Corruption Act. 4. To constitute the offence of bribery prosecution is required to prove the ingredients namely; (i) demand of bribe and; (ii) acceptance of money as bribe pursuant to the demand. When the prosecution proves the above constituents, recovery of money from the possession of the accused would further incriminate him. Mere recovery of money divorced from the circumstance under which the same came into the possession of the accused would not be sufficient to hold a person guilty. With the above touch stone, it is to be seen whether the prosecution has succeeded in bringing the charge home. 5. Before adverting to the evidence the back ground fact and circumstance are to be looked at. With the above touch stone, it is to be seen whether the prosecution has succeeded in bringing the charge home. 5. Before adverting to the evidence the back ground fact and circumstance are to be looked at. The accused has taken a specific plea that no work was pending with him, as such there was no scope for any demand of bribe to do the same. Prosecution has not brought a scrap of paper to show that the work complained of was in fact pending with the appellant. The complainant has candidly admitted that till 3.12.2003 the order of D.P.I. regarding release of his arrear dues had not reached the office of the C.I. of Schools, Cuttack. The evidence of the complainant gives a big jolt to the prosecution allegation. If no work was pending with the accused, demand of bribe on that score is not correct. This circumstance heavily discounts the prosecution case. 6. As regards the demand of bribe is concerned, the evidence of the complainant is relevant. P.W.6 in his evidence has stated that there was no talk between him and the accused regarding demand of bribe. He has further clarified that one of the office staff told him to pay Rs. 1000/- to the accused. This witness has not been declared hostile. Similar is the testimony of P.W.5, the overhearing witness. He has stated that in the tea stall the complainant gave the tainted money to the accused who did not accept saying that "Office Chala". He has further deposed that at the entrance gate of the Inspector of Schools the complainant when stretched his hand with the tainted money towards the accused he relayed signal. For the above evidence two things emerge. Firstly there is no whisper that the accused has ever raised any demand of bribe. It is the complainant who was offering or trying to give the money to the accused. Secondly if the accused had demanded the bribe there was no reason as to why he would not accept the same when offered by the accused at the tea stall and ask to come to the office where many persons were present. The evidence of P.W.4 is hearsay. In view of the above evidence, it can be concluded that the prosecution has failed to establish the factum of demand. 7. The evidence of P.W.4 is hearsay. In view of the above evidence, it can be concluded that the prosecution has failed to establish the factum of demand. 7. So far the acceptance of bribe is concerned the evidence is also equally deficient. P.W.6 the complainant has deposed that in the tea stall he offered the tainted notes to the accused but he did not receive the same at first instance. He has further said that he and the accused both returned back to the office of the accused and on the way near the office of the Sub-Registrar, he again offered the tainted notes to the accused but he did not receive the same. He then kept the tainted notes in the table drawer of the accused requesting him to get his work done in the office of D.P.I. The evidence of P.W.5, the accompanying witness, discloses that at the entrance gate of the office of the Inspector of Schools, the complainant when stretched his hands with the tainted money towards the accused, he relayed signal but he could not see what happened to the tainted money. There is absolutely no evidence that the accused has accepted the bribe money. The word "acceptance" connotes receipt or acknowledgement with consenting mind. Consent is the essential element which is conspicuously lacking in this case. His evidence that the accused after entering into his office room brought out the tainted notes from his pant pocket and kept the same inside the drawer of his own table is contrary to his earlier statement which has been proved through the investigating officer (P.W.8), since the tainted money was kept by the complainant in the drawer the same would not amount to acceptance and it can not bring culpability to the appellant. 8. Prosecution having failed to establish the demand as well as the acceptance of bribe, mere hand wash bereft of any evidence whatsoever would not be sufficient to sustain the charge. The complainant had twice attempted to pass on the tainted notes to the accused by the said process trace of phenolphthalein coming in contact with the hands of the accused can not be ruled out. In view of the above discussions, the impugned order of conviction and sentences is set aside and accordingly the criminal appeal is allowed. Final Result : Allowed