JUDGMENT The appellant has preferred this Appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction and sentence dated 15th June, 1998 passed by the learned Additional Sessions Judge, Bharuch, in Special Corruption Case No. 05 of 1993, whereby the learned Judge was pleased to convict the appellants - accused under Sections 13(1)(d) and 13(2) read with Section 7 of the Prevention of Corruption Act (for short "the Act") and awarded sentence to the appellant to suffer rigorous imprisonment for two years and to pay fine of Rs. 1,000/- i/d to further undergo SI for one month for the offence under Sections 13(1)(5) and 13(2) of the Act. It is the case of the prosecution that the appellant was serving as Police Sub-Inspector at Dediapada Police Station in Bharuch District in the year 1986. It is alleged that at the relevant point of time the complainant was running small Pangalla. It is alleged that on 27.12.1992 the complainant had organized an Adivasi Dance Program in his village. A party from other part of the village had come to perform the dance and the complainant had paid Rs. 3000/- to the party who had come to perform the dance program. It is alleged that after about 10 days from the date of program the appellant - accused came at the Pan cabin of the complainant and inquired about the program in the village. The complainant has admitted before the appellant that he had organized the dance program in the village. The complainant had also admitted that he had not obtained any permission from any authority for organizing the program as he was not aware about the same. The appellant - accused, therefore, threatened the complainant that he would take necessary legal steps for organizing the dance program without obtaining necessary permission. The complainant has requested the accused not to take any legal steps. It is alleged that, therefore, the accused told that if the complainant wanted to save himself from legal steps being taken against him then he would have to pay Rs. 1000/- and thereby the accused illegally demanded the bribe from the complainant. It is alleged that on that day the complainant was having Rs. 500/- and, therefore, he paid the said amount to the accused and thereupon the accused told the complainant that the balance amount be arranged immediately. 1000/- and thereby the accused illegally demanded the bribe from the complainant. It is alleged that on that day the complainant was having Rs. 500/- and, therefore, he paid the said amount to the accused and thereupon the accused told the complainant that the balance amount be arranged immediately. The complainant could not arrange the balance amount of Rs. 500/- and, therefore, he was called by the accused at Dediapada Police Station on 12.2.1993. There the accused threatened the complainant that if he is not able to pay the balance amount of Rs. 500/- within 2-3 days then the complainant would find himself behind the bars. The complainant thereafter returned home. As the complainant did not want to pay the said amount he decided to file complaint against the appellant - accused before the Anti Corruption Bureau. Accordingly, on 15.2.1993 the complainant approached the A.C.B. Office at Bharuch and lodged complaint against the accused. Thereafter, two panchas from the office of Deputy Collector were called by the Investigating Officer and they were introduced to the complainant. The FIR was read-over before the Panchas and they put their signatures on the same. The complainant thereafter produced 5 currency notes of the denomination of Rs. 100/-. The numbers of the currency notes were written down in the panchnama and the currency notes were handed over to one Police Constable Singabhai for the purpose of applying Anthracene powder. Thereafter the said currency notes were placed in the pocket of the complainant duly smeared with anthracene powder. Thereafter, the Trapping Officer, along with staff, Panchas and the complainant went to Dediapada in a Government Jeep. The complainant and the Panch No. 1 proceeded towards the Police Station and remaining members of the raiding party took their position around the Police station. It is alleged that when the complainant and Panch No. 1 reached the Police Station, the accused was sitting on a bench/otta of the Police Station. It is alleged that thereafter the complainant had a talk with the accused and the accused told the complainant that if he has brought the money then he may give the money to the accused. It is alleged that thereafter the complainant had a talk with the accused and the accused told the complainant that if he has brought the money then he may give the money to the accused. Upon being asked by the accused, the complainant took out the currency notes from his left hand pocket of the shirt and handed over the same to the accused and in turn the accused accepted the said amount with his right hand, counted it with the help of his left hand and put it in the left hand side pocket of T-Shirt. At that time on the signal given by the complainant, the raiding party rushed towards the accused and directed the accused to remain in the same position. It is the case of the prosecution that as alleged, the experiment under Ultra Violet lamp was carried out. The T-shirt which the accused was wearing was taken and seized from the accused. The currency notes thereafter were put in one brown paper cover. Necessary panchnama was drawn and the raid was completed. Thereafter, the statement of the accused was recorded. Thereafter the police completed the investigation by recording statements of some witnesses and after obtaining the sanction, submitted charge-sheet against the present appellant. Thereafter the trial was conducted before the learned Judge. To prove the case of the prosecution, prosecution has examined three witnesses and also produced oral as well as documentary evidence in support of the prosecution case. After filing of the closing pursis, the learned Judge has recorded the statement of the present appellant - accused under Section 313 of the Code of Criminal Procedure, 1973. After hearing both the sides at length, the learned Additional Sessions Judge, Bharuch, by judgment and order dated 15.6.1998, passed in Special corruption Case No. 5 of 1993, has held the appellant - accused guilty of the charges levelled against him and convicted the accused and sentenced him to suffer rigorous imprisonment for two years and to pay fine of Rs. 1,000/- i/d to further undergo SI for one month for the offence under Sections 13(1)(5) and 13(2) of the Act. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence dated 15.6.1998 passed by the learned Additional Sessions Judge, Bharuch in Special Case No. 05 of 1993, the appellant above-named preferred the present appeal. Heard Mr. Being aggrieved by and dissatisfied with the said judgment and order of conviction and sentence dated 15.6.1998 passed by the learned Additional Sessions Judge, Bharuch in Special Case No. 05 of 1993, the appellant above-named preferred the present appeal. Heard Mr. K. B. Anandjiwala, learned counsel for the appellant and Mr. K. P. Raval, learned Additional Public Prosecutor for the respondent - State. Mr. Anandjiwala has contended that the judgment and order of conviction passed by the learned Judge is erroneous, illegal and unwarranted on the facts and circumstances of the case. He has also contended that the the appellant has produced probable defence before the learned Judge, but, the learned Judge has not considered the probable defence of the appellant. He has contended that it is true that after it is established that the accused had accepted the amount, presumption under Section 20 of the Act would arise, but, for the purpose of coming to the conclusion as to whether the accused accepted the amount or not, or that the accused had in fact demanded the amount, the totality of the evidence led at the trial is required to be appreciated. The prosecution evidence alone cannot be considered for the purpose of coming to the conclusion as to whether the accused had accepted the amount or not. He contended that if such a conclusion is possible then alone it can be held that the prosecution has established the case beyond reasonable doubt. He has contended that the learned Judge has totally ignored the cross examination of the witnesses and other infirmities pointed out from the evidence on record. He has contended that it is highly doubtful that no such demand was made by the accused and the prosecution has given false story in that regard. He has contended that the story put-forward by the prosecution that the accused had gone to the Pan Cabin of the complainant after about 10 days from the date of Adivasi Dance Program, performed on 27.12.1992 and on that day the accused demanded Rs. 1000/- for not taking any steps against the complainant for organising the said program without any valid permission is doubtful. He has contended that the complainant gave Rs. 1000/- for not taking any steps against the complainant for organising the said program without any valid permission is doubtful. He has contended that the complainant gave Rs. 500/- on the day when the accused inquired from him about the Adivasi Dance program without the permission is doubtful, as according to the complainant, his pan cabin was located in a very remote area and his only customers were students of Ashram School which is nearby his pan galla and it is difficult to believe that the students of Ashram School would buy something from the complainant from his pan galla. Even as per the say of the complainant, the business was not profiteering and the complainant was incurring loss and, therefore, he had to close his pan cabin and started serving at Surat. Therefore, the fact that on the same day the complainant paid Rs. 500/- to the accused without any hesitation or reluctancy or any further talks does not appear to be free from doubt. There is nothing on record to suggest as to who had come at the Pan Galla informing the complainant that he had been called at Dediapada Police Station. He has contended that the evidence of the complainant is in the nature of an accomplice and such evidence needs to be scrutinized with great care and caution. In absence of corroboration, the Court should insist for corroboration from other evidence, though is not a matter of rule but, is a matter of prudence. He has contended that it is a settled legal position that conviction cannot be based on conjectures and surmises. Legal proof is necessary which is very much lacking in the present. He has contended that the only visible marks of anthracene powder were seen on the outer side of the pocket i.e. on the edge of the pocket, why the ultra violet lamp was not used to see whether there were anthracene powder marks in the internal side of the pocket ? He has contended that the Panchnama is also silent about anthracene powder marks visible in the internal side of the pocket. This is humanly impossible because if all five currency notes of the denomination of Rs. 100/- each smeared with anthracene powder are put in the pocket, anthracene powder marks are bound to be there very much visible inside the pocket also. This is humanly impossible because if all five currency notes of the denomination of Rs. 100/- each smeared with anthracene powder are put in the pocket, anthracene powder marks are bound to be there very much visible inside the pocket also. He has contended that the learned trial Judge has very conveniently proceeded to convict the accused on the basis of conjectures and surmises which are not permissible under the law. He has also relied upon a decision in the case of V. D. Jhinagan v. State of Uttar Pradesh, reported in AIR 1966 SC 1762 . He has also contended that even assuming without admitting that the recovery is proved, mere recovery of certain money from the possession of the accused without the proof of demand made by him is not sufficient to establish the guilt. He has contended that probable defence was made by the accused at the event of recording the statement under Section 313 Cr. P.C. He has also contended that when the probable defence is established then the presumption cannot arise and that from the fingers of the accused anthracene powder was found during search of physical condition of accused, but, as per probable defence of the accused is that while thrusting the trap amount in the pocket of accused, it was denied by the accused. He has contended that even in the station diary, which was called by this Court, one sentence added in the panchnama later on is not shown by the Trapping Officer in the case diary. He has contended that from the cross examination of the Trapping Officer, it is established that he was totally negligent and has wrongly booked the present appellant in a false case. He, therefore, contended that looking to the facts of the case, circumstantial evidence produced on record of the case, conduct of the complainant and other witnesses and the documentary evidence produced on record of the case, the judgment and order of conviction passed by the learned Judge is illegal, unjust and bad in law and hence, the same is required to be quashed and set aside in the interest of justice. Mr. K. P. Raval, learned Additional Public Prosecutor, has supported the judgment of the trial Court and contended that the learned Judge has not committed any error in holding the appellant guilty of the charges levelled against him. Mr. K. P. Raval, learned Additional Public Prosecutor, has supported the judgment of the trial Court and contended that the learned Judge has not committed any error in holding the appellant guilty of the charges levelled against him. He has contended that looking to the evidence of complainant, panch witness and the Trapping Officer, the demand, recovery and acceptance by the accused is proved and, therefore, no interference is called for by this Court. He has also contended that the probable defence of the present appellant - accused cannot be taken as probable defence, but it is just a story created by the appellant to come out from the serious charge of corruption. Thus, the learned Judge is right in not believing the so-called probable defence of the appellant - accused. He has read the oral evidence of the witnesses and also the documentary evidence produced on record of the case and vehemently argued that when demand, acceptance and recovery of bribe amount is proved beyond reasonable doubt, no question can arise to say that the learned Judge has erred in passing the judgment and order of conviction. He has also contended that the learned Judge has considered each and every aspect of the matter and has passed absolutely just and proper order. He, therefore, contended that the judgment and order of conviction passed by the learned Judge is required to be confirmed. I have gone through papers produced before me and the judgment and order of conviction passed by the learned trial Court. I have also perused the oral as well as documentary evidence led before the trial Court and also considered the submissions advanced by learned counsel for the parties. During the hearing of arguments, at the request of learned Advocate Mr. Anandjiwala, the original case diary was called. Thereafter, the case diary was verified in which it is found that the sentence which was added by the Trapping Officer is not shown in the case diary. From the case diary it appears that the contents of Panchnama is not proved through the oral evidence of the complainant P.W. 1 - Parbhudas Khatariyabhai Vasava (Exh. 15). So far as the second demand is concerned, it is the duty of the prosecution to prove that the second demand was made by the appellant - accused. From the case diary it appears that the contents of Panchnama is not proved through the oral evidence of the complainant P.W. 1 - Parbhudas Khatariyabhai Vasava (Exh. 15). So far as the second demand is concerned, it is the duty of the prosecution to prove that the second demand was made by the appellant - accused. It also appears from the oral evidence of Trapping Officer that he has not verified from the Panch witness that when the complainant reached the appellant - accused, whether he (panch) was present with him. From the perusal of oral as well as circumstantial evidence, the second demand is not proved beyond reasonable doubt. I have also perused Exh. 28 - written note and from the last column of said Exh. 28, it appears that the case of prosecution creates some doubt. It also appears that at the time of alleged demand and acceptance some police personnel were also present at the scene of offence, but, the prosecution has not examined any independent witness from the police station, who were present at the time of alleged incident. I have also compared the evidence of defence and the explanation of the appellant - accused that when he was sitting on his chair, at that time the complainant came and tried to insert the currency notes in the pocket which was opposed by him and, therefore, anthracene powder might have been found on the fingers and on the edge of the pocket of the shirt of the appellant - accused. However, there was no mark of anthracene powder in the inside of the pocket which goes to suggest that the currency notes were never put in the pocket of the appellant - accused. This is humanly impossible because if all the currency notes of the denomination of Rs. 100/- each smeared with Anthracene powder are put in the pocket, the anthracene powder marks are bound to be found visible inside the pocket also, but, in the present case no marks of anthracene powder are visible or found inside the pocket of the appellant - accused. The Investigating Officer has also admitted that even there is no mention of the fact in the panchnama that at the time when the ultra-violet lamp was experimented, no visible signing marks were seen on the edge of the pocket. The Investigating Officer has also admitted that even there is no mention of the fact in the panchnama that at the time when the ultra-violet lamp was experimented, no visible signing marks were seen on the edge of the pocket. In the case of V. D. Jhingan v. State of Uttar Pradesh, reported in AIR 1966 SC 1762 , the Hon'ble Apex Court has observed that "...... the burden of proof lying upon the accused under Section 4(1) of the Prevention of Corruption Act will be satisfied if the accused person establishes his case by a preponderance of probability and it is not necessary that he should establish his case by the test of proof beyond a reasonable doubt. In other words, the onus on an accused person may well be compared to the onus on a party in civil proceedings, and just as in civil proceedings, the Court trying an issue makes its decision by adopting the test of probabilities, so must a Criminal Court hold that the plea made by the accused is proved if a preponderance of probability is established by the evidence led by him." In the present case the appellant - accused in his statement under Section 313 Cr. P.C. has clearly stated that the currency notes were thrusted in his pocket and that statement itself is not sufficient to satisfy the necessary ingredients of section 20 of the Act that accused accepted or obtained or has agreed to accept or attempted to obtain any gratification other than legal remuneration so as to be able to raise the presumption. Acceptance or obtaining or agreeing to accept or attempting to obtain is a voluntary act. In the present case the main thrust is not voluntary acceptance of money and also initial demand by the accused. The only conclusion that can be drawn that the story of demand of bribe by the accused from the complainant is not proved and the payment of money by the complainant is not established beyond reasonable doubt. It is the duty of the learned Judge to consider the defence version of the present appellant, however, he has not considered at all the defence version. I am, therefore, of the opinion that the learned Judge has erred in holding the appellant - accused guilty of the charges alleged against him. It is the duty of the learned Judge to consider the defence version of the present appellant, however, he has not considered at all the defence version. I am, therefore, of the opinion that the learned Judge has erred in holding the appellant - accused guilty of the charges alleged against him. From the perusal of the papers and oral as well as documentary evidence, I am not in agreement with the reasons assigned by the learned Judge for convicting the appellant - accused and I am of the opinion that the learned Judge has committed error in convicting the appellant. Hence, the judgment and order of conviction passed by the learned Judge is required to be quashed and set aside. In view of above observations, present appeal is allowed. The judgment and order of conviction and sentence dated 15th June, 1998 passed by the learned Additional Sessions Judge, Bharuch in Special Corruption Case No. 5 of 1993, is hereby quashed and set aside. The appellant is hereby acquitted from all the charges levelled against him. Bail bond, if any, shall stand cancelled. Record and proceedings, if any, be sent back to the trial Court forth with. The case diary be handed over the learned A.P.P. Appeal allowed.