JUDGMENT (1) THIS appeal is directed against the judgment and sentence dated 11- 8- 2010 passed by the learned Special Judge (Vigilance), Balasore in T. R. No. 334 of 2007 arising out of V. G. R. Case No. 33 of 1995 convicting the appellant under Section 13(2)/ 13(l)(d) read with Section 7 of the Prevention of Corruption Act (in short, "the Act"), sentencing him to undergo R. I. for two years and one year respectively and further imposing a fine of Rs. 10,000/- in default to undergo simple imprisonment for a further period of three months and directing that the sentences shall run concurrently. (2) THE facts leading to the prosecution case are as follows : One Subash Saha (complainant) lodged an FIR on 15-9-1995 before the Superintendent of Police, Vigilance, Balasore and the same was registered as Balasore Vigilance P. S. Case No. 33 of 1995 for commission of offence under Section 13(2)/13(1)(d) read with Section 7 of the Act on the allegation that he had a small hotel near Gouhati Railway Station. On 10-9-1995, he had come to Nilagiri along with one Shy am Choudhury, a worker of his hotel, to meet his friend Tuna Biswal, who belongs to Balasore District, to do some cloth business. While the three were having food in a hotel, five police personnel took him to the police station at Nilagiri along with Shyam Choudhury. THE Officer-in-charge of Nilagiri Police Station assaulted them and levelled false allegation of committing Ganja business. THE complainant denied his involvement in such business for which he along with "Shyam Choudhury was kept in police hazat on 11-9-1995. Next day (12-9- 1995), the OIC demanded Rs. 5000/- from him to release both of them. When the complainant expressed his inability to pay the amount, he was forwarded to the Court of S. D. O. (S. D. M.), Nilagiri for commission of offence under Section 109, Cr. P. C. Shyam Choudhury was kept in Police hazat. On 13- 9- 1995, the complainant after being released on bail granted by the Court, met the O. I. C. for release of Shyam Choudhury, he demanded to bring cash of Rs. 5000/- for release of Shyam Choudhury and threatened that in case he failed to arrange money, Shyam would be forwarded to the Court. THE complainant requested for some time to arrange Rs. 5000/-. 5000/- for release of Shyam Choudhury and threatened that in case he failed to arrange money, Shyam would be forwarded to the Court. THE complainant requested for some time to arrange Rs. 5000/-. On 15-9-1995 at about 9 a. m., the complainant went to Nilagiri Police Station to meet the O. I. C. who told him to come with money during evening hours so that Shyam Choudhury would be released. THE complainant reported the matter before the S. P., Vigilance, Balasore. After the FIR was registered, Gopal Chandra Pattanaik (P.W.10) who was the Inspector of Vigilance, South Squad, Balasore, was directed by the Superintendent of Police to take up investigation. During investigation, the complainant was examined and confronted with the written complaint who admitted to have lodged the same. THEreafter, P. W. 10 made a preparation to lay a trap and sent requisition to A. D. M., Balasore and the Executive Engineer, P. W. D. (RandB) for sending one official witness each for assisting him in the laying trap. On the same date at about 7.30 p. m. in the presence of the official witnesses, preparation was made at the Vigilance Division Office. THE complainant narrated the incident relating to lodging of the F. I. R. before the vigilance authorities. Sodium carborate solution was prepared by the Vigilance Constable Debendra Behera and after washing his hand, he dipped his finger into the solution which did not change its colour. Again, he washed his hand and put currency notes of Rs. 5000/- which were thirty-four in numbers produced by the complainant in phenolphthalein powder, wrapped the said currency notes in a piece of white paper and kept the same in the left side shirt pocket of the complainant. He thereafter dipped his fingers into the sodium carbonate solution which turned pink. THE finger wash of the constable was kept in a clean glass bottle. THE complainant was instructed to hand over the tainted money only on demand of the appellant and instruction was given to Harekrushna Sethi (P. W. 6), Assistant Engineer to act as over-hearing witness to accompany the complainant for over-hearing the conversion between the complainant and the appellant and to see handing over of the tainted money to the appellant and after that to give signal by focusing torch light. THE preparation report (Ext. 2) was prepared wherein the official witnesses including complainant put their signatures. THE preparation report (Ext. 2) was prepared wherein the official witnesses including complainant put their signatures. THE trap party proceeded to Nilagiri P. S. at about 9.50 p.m. stopped their vehicle at Nilagiri P. W. D. I. B. which is nearer to Nilagiri Police Station. THE complainant along with P. W. 6 proceeded from that place to meet the appellant. THE complainant and P. W. 6 followed another person who went towards quarters of the appellant as he was not present at the police station. At about 10.45 p.m., the overhearing witness gave signal by focusing torch light indicating the receipt of the bribe money by the appellant. Immediately the raiding party members rushed to the quarters of the appellant who looking at the members of the raiding party tried to run inside the room and bolt the door but he was caught by raiding party members. At that time, the over-hearing witness was standing at the front of the quarters. THE complainant was sitting on the cement chair in the verandah of the quarters. THE appellant was wearing a check lungi. THE appellant, on being identified by the complainant to the raiding party members, told them that the moment he gave the tainted money to the appellant he kept the same wrapped inside his lungi. Discolsing identity of the raiding party members, the I. O. challenged the appellant to have taken bribe of Rs. 5000/- from the complainant. THE appellant became nervous and admitted that he had received Rs. 5000/- from the complainant. THE fingers of both his hands were washed in sodium carbonate solution separately. THE hand-wash of the appellant was collected in two glass bottles which were duly levelled and sealed by the brass seal of the then S. P., Vigilance, Balasore. THE appellant brought out the tainted money which were wrapped in his lungi and handed over the same to the Magisterial witness who tallied the numbers and denominations of the said money which were noted in the copy of the preparation report. THE over-hearing witness helped the Magisterial witness in comparing and counting the currency notes, so recovered. THEreafter, the I. O. again collected hand-wash of the appellant in sodium carbonate solution which also turned pink. THE said hand-wash was collected in a clean glass bottle and duly levelled and sealed. THE over-hearing witness helped the Magisterial witness in comparing and counting the currency notes, so recovered. THEreafter, the I. O. again collected hand-wash of the appellant in sodium carbonate solution which also turned pink. THE said hand-wash was collected in a clean glass bottle and duly levelled and sealed. THE hand washes of Magisterial witness and overhearing witness were also collected which turned pink and the same was put under proper seal. THE portion of the lungi of the appellant where he wrapped the tainted money was also washed in sodium carbonate solution which turned pink. A detection report, (Ext. 4) was prepared indicating action taken during trap. All the raiding party members and the complainant put their signatures on the said detention report. THE appellant was given a copy of the said detection report. THEreafter, the I. O. seized some documents from the Nilagiri P. S. such as, station diary entries from 15-8-1995 till 14- 9-1995, Non-FIR Register of the police station from 1/94 to 56/95 and command certificate book, etc. Shyam Choudhury, worker of the complainant was found inside the lock up of Nilagiri P. S. THE hand-wash and lungi was of the appellant and the hand-wash of the witnesses were sent by the I.O. to S.F.S.L, Rasulgarh for chemical examination. On 24- 2-1996 charge-sheet was submitted against the appellant after obtaining sanction from the DIG of Police, Eastern Range for prosecution of the appellant. The appellant pleaded innocence of charges and claimed for trial. During trial, he took a plea that the complainant forcibly wrapped the tainted currency notes in his lungi without his making a demand. (3) IN order to prove the charges, the prosecution adduced oral as well as documentary evidence and examined eleven witnesses whereas the complainant could not be examined as his whereabouts was not known as he belongs to State of Assam. P. W. 2 is a Magisterial witness. P. Ws. 3 to 5 are Vigilance Officials, who were the members of the trap party. P. W. 6 is the over-hearing witness. P. W. 7 is a witness to seizure. P. W. 8 is Shyam Choudhury. P. W. 9 is the OIC of Vigilance P. S. who registered the case. P. W. 10 is the trap laying officer and I.O. P.W. 11 is the I.O. who submitted charge-sheet. The documents produced by the prosecution were marked as Exts. 1 to 15. Ext. P. W. 7 is a witness to seizure. P. W. 8 is Shyam Choudhury. P. W. 9 is the OIC of Vigilance P. S. who registered the case. P. W. 10 is the trap laying officer and I.O. P.W. 11 is the I.O. who submitted charge-sheet. The documents produced by the prosecution were marked as Exts. 1 to 15. Ext. 14 is the written report and Ext. 15 is the chemical examination report. IN defence, the appellant adduced also oral as well as documentary evidence. D. W. 1 claims to have acted as an INquiring Officer in the departmental proceeding initiated against the appellant. D. W. 2 is the scribe of the written complaint (Ext. 14). He produced the entire case record of the departmental proceeding initiated against him in relation to the present allegation and the same was marked as Ext. A series. (4) CONSIDERING the evidence adduced by the parties and analyzing the same, the trial Court came to the conclusion that P. W. 6 supported the prosecution in material particulars even though he was declared hostile by the prosecution. The evidence of P. W. 6 coupled with the evidence of P. Ws. 2 to 5 clearly establishes that the accused received the tainted money from the complainant. As such, presumption under Section 20 of the Act comes into play. The presumption is rebuttable when it is proved that money was recovered from the possession of the public servant, the appellant, unless the contradictory is proved that he accepted or obtained the tainted money as a motive or reward. The appellant tried to rebut the presumption vide Ext. A series banging upon the evidence of P. W. 6. Even if the evidence of P. W. 6 is excluded, the evidence of other witnesses clinchingly establish that the appellant received the tainted currency notes from the complainant voluntarily. The presumption from the said fact also establishes that the appellant demanded bribe from the complainant and received the same. The plea of falsely implicating the appellant is not believable as the amount of Rs. 5000/- is not a small amount which one would happily arrange to falsely implicate a person like the accused- appellant. On the above finding, the trial Court held that the charges are proved by the prosecution beyond all reasonable doubt and held the accused-appellant guilty and imposed the sentence as aforesaid. 5000/- is not a small amount which one would happily arrange to falsely implicate a person like the accused- appellant. On the above finding, the trial Court held that the charges are proved by the prosecution beyond all reasonable doubt and held the accused-appellant guilty and imposed the sentence as aforesaid. Learned counsel appearing for the appellant submitted that that trial Court has committed gross error of law and facts in convicting the appellant under the aforesaid sections as the prosecution has not examined the complainant to prove the demand and payment of bribe. Since the charges are under Sections 13(2)/13(1) (d) read with Section 7 of the Act, section 20 of the Act is not attracted. He further submitted that in the departmental proceeding, the appellant was exonerated from the charges and the DIG of Police, Eastern Range, Balasore, held that the arrest of Shyam Choudhury was not substantiated and the complainant did not turn up for his examination in spite of earnest made by the Inquiry Officer to prove the demand and acceptance of money. Since P. W. 8 stated that the complainant told him that after his release on bail he would teach a lesson to the appellant, the trial Court should have considered the plea of the appellant which is more plausible to be accepted. The scribe of FIR, not having been examined by the prosecution but being examined by the defence as D. W. 2, has categorically stated that the complainant was not present at the time of scribing of the FIR and the FIR was scribed as per the dictation of K. C. Mohapatra, Vigilance, DSP. Therefore, the prosecution case regarding lodging of the FIR by the complainant is doubtful. As such, impugned order of conviction and sentence passed by the trial Court are liable to be set aside. In support of his submission, he cited the decision of the Apex Court in the case of Banarsi Dass v. State of Haryana, (2010) 46 OCR (SC) 152 : ( AIR 2010 SC 1589 : 2010 Cri LJ 2419) wherein it has been held that mere recovery of money from the accused by itself is not sufficient in the absence of substantive evidence of demand and acceptance and offence should be proved against the accused beyond reasonable doubt. He also cited the decision of the Apex Court reported in (2010) 47 OCR (SC) 865, Prabhat Kumar Gupta v. State of Jharkhand and contended that when the prosecution witness failed to prove that the money was received by the appellant as bribe, the presumption as contemplated under Section 20 of the Act would not arise. He further placed reliance on the decision of the Apex Court in the case of Arakhita Nath v. State of Orissa. (2009) 42 OCR (SC) 34 wherein it has been held that the presumption under Section 20 of the Act is not attracted when the accused has been charged for commission of offence under Sections 13(l)(d) read with Section 13(2) of the Act. (5) LEARNED Standing Counsel for the Vigilance Department supporting the impugned judgment and order passed by the trial Court submitted that non-examination of the complainant ipso facto does not give rise to a conclusion that the appellant is innocent. The prosecution case cannot entirely be thrown out if the same is proved through other direct and circumstantial evidence. The plea of defence that the appellant was falsely implicated was rightly not accepted by the trial Court as because the complainant being a man of Assam could not dare to go to the residence of the appellant at late night to implicate him in a false case. The prosecution has proved through P. W. 2, the then Executive Magistrate regarding preparation of trap detection report and he being an independent witness cannot be disbelieved regarding his presence at the spot and the circumstances as spoken by him on the score of demand and acceptance of bribe money by the appellant. In support of his contention, he cited decisions of the Apex Court in the case of Kanshi Ram v. State of Punjab (2006) 34 OCR (SC) 432, and the decision of this Court in the case of B. Noha v. State of Kerala and another, (2007) 36 OCR (SC) 47. (6) IN the present case, the prosecution has proved its case mainly on the statement of P.W. 2, the Magisterial witness who was working as Land Acquisition Officer that he reported at the Vigilance Office on the basis of requisition from the Superintendent of Police, Vigilance, Balasore to be a witness in the trap case. IN the said meeting, one Subas Saha (complaiant) and Asst. Engineer (P. W. 6) were present. IN the said meeting, one Subas Saha (complaiant) and Asst. Engineer (P. W. 6) were present. After formal introduction, the complainant disclosed his grievance saying that O. I. C, Nilagiri demanded Rs. 5000/- to release Shyam Choudhury (P. W. 8). The complainant produced four 500-rupee currency notes and the rest in hundred-rupee denominations. The number of G. C. notes was noted down. The currency notes were smeared with chemical powder. The handwash of the police personnel collected turned pink and was preserved in a glass bottle. The currency notes were given to the complainant wrapped with a paper with instruction to hand over the same to the appellant on demand only. P. W. 6 was instructed to overhear the conversion of the appellant and the complainant and give signal after transaction was over. Accordingly, the preparation report was made on which all the witnesses put their signatures. The prosecution has also proved the preparation report marked Ext. 2 and the same was not challenged by the appellant. Therefore, due to non-examination of the complainant, the statement of P. W. 2 can be accepted as nothing has been brought out in his cross-examination regarding complaint of the complainant that there was not a demand of money for release of Shyam Choudhury. He had also proved the fact that the tainted money was kept by the appellant in his lungi and tied up on his waist and on being challenged by the I. O., the appellant admitted to have received the tainted money from the complainant. Both the hands of the appellant and also his lungi in which the tainted money was wrapped were washed in chemical solution which turned pink. The detection report Ext. 4. which was prepared at the spot coupled with the statement of P. W. 6 who was the over hearing witness corroborates the statement of P. W. 2 regarding the presence of Subash Saha at the Vigilance Office who was introduced to the members of the trap party. He narrated the complaint regarding demand of money by the appellant and production of tainted money by him also. P. W. 6 narrated how the trap was prepared and the tainted money smeared with chemical powder and wrapped in a paper was handed over to the complainant. He narrated the complaint regarding demand of money by the appellant and production of tainted money by him also. P. W. 6 narrated how the trap was prepared and the tainted money smeared with chemical powder and wrapped in a paper was handed over to the complainant. The preparation report was prepared after a demonstration was made to the trap party regarding demand and payment of money to the appellant. However, this witness was declared hostile by the prosecution. The I. O. has proved the chemical examination report, preparation report and detection report which were not challenged by the appellant. (7) LAW is well settled that the evidence of hostile witness cannot as a matter of law be treated as washed up from the record altogether. The evidence of such a witness has to be considered to the extent whether as a result of such cross-examination and contradiction, the witness stands voluntarily discredited or can still be believed in regard to a part of his testimony. If a part of his testimony is found by the Court to be creditworthy, it can be acted upon. Therefore, the prosecution has proved through P. Ws. 2, 6 and the I. O. (P. W. 10) that on the complaint of the complainant-Subas Saha, a demonstration was made in the office of the vigilance regarding the procedure adopted during trap. The trap report was prepared. Thereafter all the witnesses were put their signatures in the preparation report and the trap party proceeded to the spot. The record reveals that the appellant admitted his guilt after the tainted money was recovered and detention report (Ext. 4) was prepared which was proved and the same was not challenged by the appellant. On scrutiny, the statement of the above witnesses reveals that the tainted money was recovered from the appellant's lungi and the trap party noticed that Shyam Choudhury was behind the bar at the police station and that the appellant allowed the complainant to enter his residential quarters and the tainted money was recovered from the appellant as he had held those money and wrapped in a lungi. The hand-wash and the lungi-wash of the appellant turned pink on chemical examination report. (8) FROM the above narration of facts, it can safely be concluded that the appellant took the tainted money on demand. The hand-wash and the lungi-wash of the appellant turned pink on chemical examination report. (8) FROM the above narration of facts, it can safely be concluded that the appellant took the tainted money on demand. Initially, the statement of the appellant admitting acceptance of the tainted money by him clearly proved the factum of voluntary and conscious acceptance of illegal gratification for release of Shyam Choudhury who was behind the bar. Therefore, it has to be presumed that the appellant accepted the gratification as a motive or reward for doing or forbearing to do any official act i.e. to release the person in custody. The presumption under Section 20 of the Act deals with legal presumption as the words used in the said section are "shall be presumed". The said section does not say that it should be proved through direct evidence. The only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. (9) PROOF of the fact depends upon the degree of probability of it having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. In reaching the conclusion, the Court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. If the prosecution proves acceptance of the amount by the accused and the amount does not represent legal remuneration in any form or of any kind, the presumption must be raised under the section and the accused must establish that the amount was not accepted by him as a motive or reward such as is mentioned in Section 161, Penal Code. The accused can establish his case by preponderance of probabilities, that is to say, he need not prove his case beyond a reasonable doubt. It cannot be contended that the presumption under Section 20 of the Act can be raised only if the prosecution establishes at the first instance that the amount was paid otherwise than a legal remuneration. Such a contention is contrary to the clear terms of Section 20 and would render illusory the presumption arising under the said provision. It cannot be contended that the presumption under Section 20 of the Act can be raised only if the prosecution establishes at the first instance that the amount was paid otherwise than a legal remuneration. Such a contention is contrary to the clear terms of Section 20 and would render illusory the presumption arising under the said provision. The presumption under Section 20 can be raised regarding acceptance of gratification other than the legal remuneration in a trial of an offence punishable under Section 7 or Section 11 or Clause (a) or (b) of sub-section (1) of Section 17 of the Act. (10) IN the present case, the appellant faced the trial for commission of offence punishable under Sections 13(2)/13(1)(d) read with Section 7 of the Act. The appellant examined D. W. 2, the scribe of the FIR to prove its case on preponderance of probabilities that the FIR was written on the instruction of DSP, Vigilance, K. C. Mohapatra and Subash Saha was not present. However, the evidence of P. Ws. 2 and 6 and the preparation report and the detection report vide Exts. 2 and 4 respectively clearly proved that the complainant was very much present when the trap was prepared on his complaint. The plea of the appellant was that a false case was foisted to trap him and in the absence of examination of Subas Saha, the complainant, the prosecution case has to be disbelieved is not acceptable. The prosecution has proved that there was a previous demand of money by the appellant from the complainant. The accused accepted the money and the money was recovered from him. As Shyam Choudhury was behind the bar at the police station, the money was demanded for his release. As discussed in the above paragraph, though P. Ws. 2, 6 and 10 have been put to the rigor of cross examination by the defence, nothing has been brought out from their mouth to raise any doubt about their credibility or their presence at the spot where the detection report was prepared. Even though P. W. 6 was declared hostile, he categorically stated that the complainant disclosed before him that the appellant demanded the bribe of Rs. 5,000/-. Even though P. W. 6 was declared hostile, he categorically stated that the complainant disclosed before him that the appellant demanded the bribe of Rs. 5,000/-. Though the appellant was exonerated from the departmental proceeding as it appears from Ext.A solely on the basis of non-examination of the complainant and the statement of the scribe who had written the FIR, those facts have already been discussed in the above paragraphs. So far as the demand and acceptance of money by the appellant is concerned, the evidence of P. Ws. 2, 6 and 10 cannot be brushed aside because in the departmental proceeding those witnesses had not been examined. The Apex Court in the case of State of Andhra Pradesh v. Vasudeva Rao, AIR 2004 SC 960 : (2004 Cri LJ 620), has held that when accused was in possession of money and the prosecution brought reliable materials that there was recovery of money from the accused; in fact the receipt and recovery is accepted and plea of loan was not cogent or credible, it can be presumed that accused received illegal gratification. Illustration (a) to Section 114, Evidence Act can profitably be used in the present context. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the Court is only applying a process of intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in law of evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the Court can draw an inference and that would remain until such inference is either disproved or dispelled. (11) IN the present case, since the accused- appellant has not been able to dislodge the presumption regarding demand and acceptance of money, the said presumption is final. Therefore, this Court upholds the findings of the trial Court and confirms the sentence imposed by the learned Special Judge (Vigilance), Balasore in T. R. No. 334 of 2007 arising out of V. G. R. Case No: 33 of 1995. Accordingly, the criminal appeal is dismissed. Appeal dismissed.