JUDGMENT 1. - The appellant, Mahendra Kumar Kaushik ('A-1', for short), having been convicted for the offences under Section 7, 13 (1(d) read with Section 13(2) of the Prevention of Corruption Act ('the Act', for short) and the appellant, Sudama ('A-2', for short), having been convicted for the offence under Section 12 of the Act, vide judgment dated 31.05,2003, passed by Special Judge, Prevention of Corruption Act, Jaipur, have approached this Court. Since both the appeals arise out of the same impugned judgment, they are being decided by this common judgment. 2. The brief facts of the case are that on 23.02.1998, around 11:45 AM, Sunda Ram (P.W. 17) submitted a written report (Ex.P. 8) before the ACB, wherein he claimed that he has certain lands situated In village Sirohi in respect of which a litigation is pending before the Sub Divisional Magistrate, Neem-ka-Thana. He further claimed that he needs to submit certain revenue records, which are in custody of the Halka Girdawar, A-1. In order to procure the copies of these revenue records, he had contacted A-1. However, A-1 has been delaying in giving copies of the documents to him. Moreover, he has been demanding Rs. 2,000/- for giving copies of the record. The complainant further alleged that on 15.02.1998, he had met A-1 and had shown his inability to pay Rs. 2,000/-. For, the amount was too much for him, as he was a mere labourer. As Sunda Ram (P.W.17) was unable to make the payment of illegal gratification, he contacted the Bureau. On 23.02.1998, Mota Ram, LHC was given a mini-tape recorder and was sent to the house of A-1 with Sunda Ram (PW.17) in order to record the conversation. According to the prosecution, A-1 again demanded the money, whereupon the complainant gave him Rs. 500/-. A-1 indicated to the complainant that he should give the money to Sudama, (A-2). He also told the complainant to bring the remaining amount of Rs. 1500/- on the next day. Thereafter, the trap proceedings were parried on 24.02.1996. According to the prosecution, the complainant went to A-1's office. There, he was asked to pay Rs. 50/- by way of fees for getting the certified copies of the documents. He took out Rs. 50/-, out of the money given by the ACB, and gave it to A-1, who gave it to Patwari Kana Ram Sharma (PW.6). According to the prosecution, the complainant went to A-1's office. There, he was asked to pay Rs. 50/- by way of fees for getting the certified copies of the documents. He took out Rs. 50/-, out of the money given by the ACB, and gave it to A-1, who gave it to Patwari Kana Ram Sharma (PW.6). According to the prosecution, thereafter, A-1 took the complainant to the veranda and at the veranda, the complainant gave the remaining amount of As. 1450/- to him. Subsequently, the complainant gave the agreed signal. Thereupon, the ACB team came in and caught hold of A-1. At that time, A-1 told the trap party that "he had neither demanded, nor accepted any bribe money from the complainant." According to the prosecution, Rs. 1450/- were recovered form the windowsill of the toilet and Rs. 50/- were recovered from the windowsill. of a room. Subsequently, the charge-sheet was filed against both the appellants. 3. In order to support its case, the prosecution examined seventeen witnesses, and submitted a number of documents. The defence also examined two witnesses, and submitted a few documents. After going through the oral and documentary evidence, the learned Judge convicted A-1 for offence under Section 7 of the Act, and sentenced him to two years of rigorous imprisonment, and imposed a fine of Rs. 5,000/-, and directed him to further undergo a term of six months of simple imprisonment in default thereof. The learned Judge also convicted him for offences under Section 13(1) (d) read with Section 13(2) of the Act and sentenced him to two years of rigorous imprisonment, and imposed him with a fine of Rs. 1,000/-, and further directed him to undergo a term of one month of simple imprisonment in default thereof. The learned Judge convicted A-2, for offence under Section 12 of the Act and sentenced him to one year of rigorous imprisonment, and imposed a fine of Rs. 1,000/-, and directed him to further undergo a term of three months of simple imprisonment in default thereof. 4. Since the appellants are aggrieved by the said impugned judgment, they have filed the present appeals before this Court. 5. Mr. Bajranglal Sharma, the learned Senior Counsel for A-1, has raised the following contentions before this Court: firstly, that A-1 has been falsely implicated in the case due to an animosity between him and the complainant. 4. Since the appellants are aggrieved by the said impugned judgment, they have filed the present appeals before this Court. 5. Mr. Bajranglal Sharma, the learned Senior Counsel for A-1, has raised the following contentions before this Court: firstly, that A-1 has been falsely implicated in the case due to an animosity between him and the complainant. The animosity is clear from the fact that Sunda Ram (P.W.17) had certain land dispute with his neighbour Indraj, as the complainant had encroached upon the land belonging to Indraj. In an inspection carried out on the land of Indraj, A-1 had discovered the fact that the complainant had encroached upon Indraj's land. According to the complainant himself, A-1 had asked him to remove the encroachment and to properly re-establish the boundaries of that land. Due to the fact that A-1 had asked the complainant to remove his encroachment, according to the learned counsel, an animosity had developed between the complainant and A-1. 6. Secondly, Sunda Ram (P.W.17), in his statement recorded under Section 161 CrPC., had clearly stated that he had met A-1 as he was the Halka Girdawar, on 13.02.1998, 15.2.1998, 21.02.1998 and 23.02.1998. According to him from 13.02.1998 till 22.02.1998, A-1 consistently kept on demanding Rs. 2,000I- as illegal gratification. However, bare perusal of Ex.P.1 and EX.P.2 would clearly reveal that Ex.P.1 and Ex.P2 are two applications addressed to the Tehsildar. Both the applications were initially dated 23.02.1998, although, subsequently the dates have been changed to 3rd of February, 1998. Interestingly, according to the Naib Tehsildar, Nekram (PW.1), both Ex.P1 and Ex.P2 were submitted, before him on 23.02.1998, and not on 3rd of February 1998. According to both these applications, Sunda Ram (P.W.17) had requested the Tehsildar to refer his case to the Halka Girdawar, namely, A-1. But, if, A-1 were demanding an illegal gratification from 13.02.1998 till 22.02.1998, there was no reason for the complainant Sunda Ram (P.W.17) to request, on 23.02.1998, that the case be referred to A-1. According to the learned Senior Counsel, the existence of these two documents clearly prove that till 23rd February, 1998, A-1 had not demanded any illegal gratification from Sunda Ram (PW.17). 7. Thirdly, even the transcript of the conversation (Ex.P19), alleged held on 22nd February, 1998, does not show that any demand was made by the appellant. According to the Transcript (Ex.P19), the demand was made by A-2. 7. Thirdly, even the transcript of the conversation (Ex.P19), alleged held on 22nd February, 1998, does not show that any demand was made by the appellant. According to the Transcript (Ex.P19), the demand was made by A-2. The only statement made by A-1 was to tell the complainant to come next day. 8. Fourthly, according to the recovery memo, it is the complaint, who revealed that Rs. 1450/- can be recovered from the windowsill of the toilet. According to Kana Ram (P.W.6), it is the complainant, who had gone into the toilet and not A-1, The fact that it is the complainant, who reveals the whereabouts of the tainted money, clearly shows that the tainted money was planted by the complainant in the toilet. Interestingly, the very first explanation given by A-1 to the ACB, at the time of trap proceeding, was to clearly state that "he neither demanded, nor accepted any money from the complainant." 9. Fifthly, the existence of the coloured water has been explained satisfactorily by A-1, For it was he who had accepted Rs. 50/- from the complainant when the complainant was giving the said amount to the Patwari. Thus, a reasonable explanation has been given by the appellant for the existence of the phenolphthalein powder on his hand. Lastly, the appellant has been able to rebut the presumption under Section 20 of the Act by creating sufficient probabilities in favour of his defence. Hence, the learned Judge should have acquitted the appellant for the aforementioned offences. 10. Mr. Samandar Singh, the learned counsel for A-2, in turn, has contended that the prosecution has failed to prove its case against A-2 to the hilt. According to the prosecution, although there may have been some demand on behalf of A-2, there is neither any acceptance, nor any recovery' made from him. The tainted amount had been recovered from the windowsill of the toilet. Therefore, A-2 has no relationship to the case that was lodged by the complainant against A-1, Yet, the learned Judge has convicted A-2 as well. Therefore, a grave injustice has been caused to him. 11. On the other hand, Mr. Javed Choudhary, the learned Public Prosecutor, has vehemently contended that the learned Judge has meticulously examined the evidence. According to Sunda Ram (PW.17), A-1 had been demanding an illegal gratification of Rs. 2,000/-, According to him, initially. Rs. Therefore, a grave injustice has been caused to him. 11. On the other hand, Mr. Javed Choudhary, the learned Public Prosecutor, has vehemently contended that the learned Judge has meticulously examined the evidence. According to Sunda Ram (PW.17), A-1 had been demanding an illegal gratification of Rs. 2,000/-, According to him, initially. Rs. 500/- were paid to A-1 at his house. The said amount was paid to A-2. On the day, when the trap proceedings were carried out, according to Sunda Ram (PW.17), the illegal remuneration was handed over to A-1. The said amount was recovered from the toilet of his office. Therefore, the prosecution has proven the demand, and the acceptance, and the recovery of the amount. Hence, the prosecution has succeeded in establishing its case. Thus, the learned Judge was justified in invoking the presumption under Section 20 of the P.C. Act. Since the appellants had been unable to rebut the presumption, the learned Judge was justified in convicting the appellants for the aforementioned offences. Therefore, the learned Public Prosecutor has supported the impugned judgment. 12. In catena of cases, the Hon'ble Supreme Court has held that suspicion, no matter howsoever strong, cannot take the place of proof. Moreover conviction cannot be based on morality, but has to be based on cogent evidence produced by the prosecution, In case sufficient doubt is created in the mind of the court, then the benefit of doubt should be given to the accused. Moreover, the accused need not establish his defence beyond a reasonable doubt. He has to merely probablize his defence through reasonable evidence. Lastly, it is a settled principle of criminal law, "while Man may lie, documents do not." Therefore, while appreciating the evidence, the trial Court is required to take a holistic view of the evidence, both oral and documentary, and to see if the prosecution has been able to prove its case beyond a shadow of doubt. 13. In the present case, the prosecution is afflicted by number of lacunae, which are obvious from the record. Sunda Ram (PW.17), in his statement recorded under Section 161 Cr.PC. (Ex.D/3) had clearly stated that when he met A-1 on 13.02.1998, A-1 had told him to remove his encroachment and to push back his possession. As a witness, when he is confronted with this portion of his statement, he denies the veracity of this statement in his cross-examination. Sunda Ram (PW.17), in his statement recorded under Section 161 Cr.PC. (Ex.D/3) had clearly stated that when he met A-1 on 13.02.1998, A-1 had told him to remove his encroachment and to push back his possession. As a witness, when he is confronted with this portion of his statement, he denies the veracity of this statement in his cross-examination. He further states that although he met A-1 on 13.02.1998, but he did not speak about getting the copies of his documents. From the denial two inferences can be drawn: firstly, that there was, indeed, a dispute with regard to the encroachment made by the complainant on the land belonging to Indraj. This fact is further corroborated from the fact that there is a litigation pending between complainant and Indraj in the SDM Court Neem-ka-Thana. Thus, the first contention raised by the learned counsel for A-1 that because A-1 had asked the complainant to remove his encroachment, therefore, an animosity had developed between the two, seems to be an acceptable plea. Secondly, the fact that the complainant, as a witness, denies this part of his statement, clearly casts a doubt on his creditworthiness. 14. The creditworthiness of the complainant is further eroded by the existence of Ex.P.1 & Ex.P.2, the two applications filed by him. Nekram (P.W.1), the Naib Tehsildar, states in his examination-in-chief that on 23rd February, 1998, he was working as Naib Tehsildar, Exs.Pi & P.2 were submitted before him on 23.02.1998. He further says that he had passed the necessary order for the complainant's case to be referred to Halka Girdawar, namely A-1. He further goes on to identify his signatures on these two documents. A bare perusal of Ex.P1 & Ex.P2 clearly reveals that in both the applications, Sunda Ram (PW.17), the complainant, had requested that the case be transferred to A-1. 15. It is rather, curious that on the one hand, Sunda Ram (P.W.17) would have the Court believe that from 13.2.1998 to 22.02.1998, A-1 consistently demanded illegal gratification from him, yet, in both his applications he would request the Tehsildar to transfer his case to A-1, the Halka Girdawar. Obviously, in case A-1 had demanded illegal gratification within the period of nine days from 13th February, 1998 to 22nd February, 1998, the applications would have reflected the dissatisfaction of the complainant against A-1. Obviously, in case A-1 had demanded illegal gratification within the period of nine days from 13th February, 1998 to 22nd February, 1998, the applications would have reflected the dissatisfaction of the complainant against A-1. Yet, neither of the applications utter a single word against A-1.Instead, a request was made to refer the case to A-1. Therefore, the allegation made by the complainant that a demand was consistently made between 13.02.1998 to 22.02.1998 is belied by these two documents. Men may lie, documents do not. Thus, again the trustworthiness of this witness becomes doubtful. 16. A bare perusal of the transcript of the conversation (Ex.P.19) recorded on 23.02.1998, also reveals that the demand for the money was not made by A-1, but was made by A-2. Even in his explanation, A-1 had clearly stated that "he had neither demanded the money, nor received any money from Sunda Ram". Thus, the prosecution has failed to prove the element of 'demand' In the present case. 17. According to the complainant, after he had given Rs. 50/- to Patwari Kana Ram (P.W.6), he and A-1 had gone into the veranda. It is at the veranda that he had given A-1 Rs. 1450/-. Thereafter, according to the complainant, A-1 had gone into the toilet; from there, he had gone back to his office, But, according to Kana Ram (P.W.6), after the complainant had a conversation with A-1 in the veranda, it is the complainant, who had gone to the toilet. Meanwhile, A-1 had gone back to his office. Thus, Kana Ram (P.W.6) contradicts the stand taken by the complainant. Yet, the prosecution has not declared Kana Ram (P.W.6) as a hostile witness. Therefore, naturally,the prosecution is bound by the testimony of Kana Ram (P.W.6). 18. According to the recovery memo, and the record of the trap proceeding, when A-1 was asked about the bribe money taken by him, he clearly stated that "he had neither demanded, nor taken any money from Sunda Ram (P.W.17)". At this juncture, it is Sunda Ram (P.W.17), who informs the ACB Party that the money is lying on the windowsill of the toilet. According to the ACB, the money was, indeed, recovered from the windowsill of the toilet. At this juncture, it is Sunda Ram (P.W.17), who informs the ACB Party that the money is lying on the windowsill of the toilet. According to the ACB, the money was, indeed, recovered from the windowsill of the toilet. Since Sunda Ram (P.W.17) did not accompany A-1 into the toilet, it is, rather, surprising that he would know that the money was left by A-1 in the toilet, Sunda Ram (PW.17), in his testimony, does not give any explanation as to how he knew that A-1 had left the money on the windowsill of the toilet. Since this was a fact which was in his personal knowledge, the complainant should have revealed the source of this knowledge to the Court. Moreover, according to Kana Ram (P.W.6), it is Sunda Ram (P.W.17), who had gone into the toilet. Therefore, a grave possibility does exist that because of the animosity that existed between Sunda Ram (P.W.17) and A-1, Sunda Ram (P.W.17) had gone into the toilet, planted the tainted money, came out and gave the agreed signal to the raiding party. Since the tainted money was planted by Sunda Ram (PW.17), it is he who reveals the whereabouts of the money to the raiding Party. Therefore, the contention raised by the learned Senior Counsel that appellant A-1 has been implicated in a false case, by the complainant, due to a particular animosity, creates sufficient doubt about the veracity of the prosecution case. 19. In the case of C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 , the Hon'ble Supreme Court has held that mere recovery of the amount is not sufficient for convicting an accused in a case under Section 7 and 13(1)(d) of the Act. Interestingly, in this case, the recovery has not been made from possession of A- 1. According to the prosecution, the recovery, in fact, was made from a windowsill situated in the Girdawar office. 20. As far as the acceptance of the amount is concerned, but for the statement of Sunda Ram (P.W.17) that he gave the money to A-1 in the veranda, there is no other corroborate evidence on this point. Moreover, A-1 has already explained the presence of the phenolphthalein powder on his hand. According to him when Sunda Ram (PW.17) had given him Rs. Moreover, A-1 has already explained the presence of the phenolphthalein powder on his hand. According to him when Sunda Ram (PW.17) had given him Rs. 50/-, to be given to the Patwari, as that was the fees required for giving of the copies of the documents, the powder had adhered to his hand. This explanation has also been corroborated by Kana Ram (P.W.6), the Patwarl. 21. Hence, the prosecution has failed to prove the elements of demand, acceptance and recovery. Since the prosecution could not establish the bare facts of the case, the learned Judge was certainly unjustified in invoking the presumption under Section 20 of the Act. Moreover, the defence has given plausible explanation, and has proved its defence through a high degree of probabilities. Therefore, the defence has succeeded in rebutting the presumption. Thus, the learned Judge was unjustified in convicting appellant A-1, especially when the presumption has been rebutted by him forcefully. 22. As far as A-2 is concerned, the prosecution has miserably failed to prove the element of acceptance and recovery against him. In the absence of these two essential factors, it is rather surprising that the learned Judge has convicted him for the offence under Section 12 of the Act. 23. For the reasons stated above, the appeals filed by Mahendra Kumar Kaushik (A-1) and Sudama (A-2) are accepted; the impugned judgment dated 31.05.2003 is, hereby, quashed and set aside. Since both the appellants are on bail, their bail bonds are discharged.Appeal Allowed. *******