Judgment : The appeal is directed against the Judgment and order dated 20/12/2007 passed by Learned Special judge, Chandrapur in Special Case No. 1 of 2002 whereby the respondent/accused was acquitted of offences punishable under Sections 7,13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. Facts stated are:- Respondent/accused Narendra Mahajan was posted as Junior Clerk in the Court of 3rd Joint Judicial Magistrate, FC, Chandrapur and as such was a “public servant” within the meaning of Section 2 (c) of the Prevention of Corruption Act, 1988 (for short, the “Act”). One Suresh Durugkar was facing Criminal Case No. 3908 of 1997 pending on the file of 3rd Joint Judicial Magistrate, FC, Chandrapur. According to complainant Suresh Durugkar, though he was attending the dates in the said case regularly, accused used to demand money from him every time for further dates. On 26.6.2001, complainant could not attend the date owing to illness and upon enquiries, he came to know that the next date given was 2.7.2001. On 2.7.2001 when the complainant attended the Court, accused disclosed to him that warrant was issued against him, but by that time he (accused) had not sent it. Accused assured that if complainant parts with Rs. 50/-, he will cancel the warrant. Since the complainant was not having Rs. 50/-, he paid Rs. 20/-to the accused. Complainant filed application for cancellation of warrant. The Court allowed it subject to payment of penalty of Rs. 50/-. At the time of handing over hamdast, accused again demanded Rs. 10/-. However, since complainant was not having that amount, he agreed to pay Rs. 10/-on the next date upon which accused asked him to bring Rs. 100/-on the next date, otherwise, he will not give further dates. Complainant requested to bring down the amount since he has to come from Gondia on which accused replied that police, doctor and court kacheri do not discriminate between poor and rich. Accused further stated that he has to maintain entire records and, therefore, complainant will have to pay Rs. 100/-to him. Unwillingly, complainant agreed to pay Rs. 100/-to the accused on 21.7.2001 out of fear for issuance of warrant. 3. On 20.7.2001 complainant contacted the Office of Anticorruption Bureau, Chandrapur. His complaint was reduced into writing. Accused further stated that he has to maintain entire records and, therefore, complainant will have to pay Rs. 100/-to him. Unwillingly, complainant agreed to pay Rs. 100/-to the accused on 21.7.2001 out of fear for issuance of warrant. 3. On 20.7.2001 complainant contacted the Office of Anticorruption Bureau, Chandrapur. His complaint was reduced into writing. The Dy Superintendent of Police then sent special report to the District Judge seeking permission for laying trap in the court premises. The permission was granted. Thereafter he summoned two employees from the Office of Minor Irrigation, Chandrapur to act as panch witnesses. One Pradeep Wanyalkar and Tadse were deputed from the said office to act as panchas. On 21.7.2001 complainant and said witnesses attended the office of ACB. Complainant was introduced to the pancha witnesses. The demonstration about the characteristic of phenolphthalein powder and sodium carbonate solution was given. The complainant produced two currency notes of 50 rupees denomination. The series numbers were noted down. These currency notes were smeared with phenolphthalein powder and the currency notes were folded and kept in the right side pant pocket of the complainant. He was instructed not to touch the marked currency notes unless demanded as a bribe and on acceptance he should give signal to the raiding party by removing his spects. Similarly, witness Wanyalkar was instructed to accompany the complainant and to watch the events carefully. Another panch witness Tadse was instructed to accompany with the raiding party members. Pre-trap panchanama was accordingly drawn. 4. Thereafter in the office vehicle, the raiding party along with complainant and both the pancha witnesses proceeded to the Court premises. Around 10.25 am the jeep was halted near the bungalow of Superintendent of Police. Instructions were repeated to the complainant and decoy witnesses. Around 10.40 am, the complainant and decoy witness entered in the court hall of 3rd Joint Judicial Magistrate, FC, Chandrapur while raiding party members were waiting outside the court hall in a verandah. The complainant approached him and opened the talk about his case. Accused told him that the witnesses had not come. Thereafter the complainant asked the accused to make adjustment in the case if he does not attend the court on any date and requested him to give longer date. Thereupon, the accused asked the complainant whether he had brought the amount as agreed. Complainant replied in the affirmative. Thereafter, accused demanded bribe amount. Thereafter the complainant asked the accused to make adjustment in the case if he does not attend the court on any date and requested him to give longer date. Thereupon, the accused asked the complainant whether he had brought the amount as agreed. Complainant replied in the affirmative. Thereafter, accused demanded bribe amount. Complainant took out marked currency notes from his right side pant pocket with his right hand and handed over the same to the accused which were accepted by him by his left hand and put the same in his left side pant pocket. As planned, complainant came outside and gave signal to raiding party by removing his spects. However, before raiding party entered the court hall, accused left his chair and came out of court hall and proceeded through verandah. He was pointed out to the raiding party members by the complainant and the decoy witness. Thereafter the raiding party followed him and ultimately, accused was nabbed outside the court building at a pan-shop. Raiding party members held his hands and they disclosed their identity. He was brought to the Court hall of 3rd Joint Judicial Magistrate, First Class. Complainant was asked to remain outside. Demonstration was given that there were no traces of phenolphthalein powder on the person of anybody from the raiding party and the decoy witness. When the left hand fingers of the accused were tested with solution, the phenolphthalein powder was detected. The solution was preserved in a separate bottle. The marked currency notes were recovered from the left side pant pocket of the accused through second panch witness. Their series numbers were tallied. The phenolphthalein powder was also detected when solution was sprinkled on the marked currency notes as well inside currency notes and the pant were attached by providing separate pant to the accused. The complainant was called inside. When his right hand fingers were tested with the solution, the phenolphthalein powder was detected. This solution was also preserved in a separate bottle. The papers of Criminal Case No. 3908 of 1997 were seized. Accordingly, a detailed post-trap panchanama (Exhibit P/22) was prepared. 5. Thereafter the then Dy Superintendent of Police drafted his report recording the above facts and sent the same to Ram Nagar Police Station, Chandrapur upon which offence vide Crime No. 3104/01 was registered. The papers of Criminal Case No. 3908 of 1997 were seized. Accordingly, a detailed post-trap panchanama (Exhibit P/22) was prepared. 5. Thereafter the then Dy Superintendent of Police drafted his report recording the above facts and sent the same to Ram Nagar Police Station, Chandrapur upon which offence vide Crime No. 3104/01 was registered. During the course of investigation, articles on which phenolphthalein powder was detected were sent to Chemical Analyser. C. A. Report was obtained. Statements of witnesses were recorded. On completion of investigation, papers were sent to sanctioning authority. On receipt of sanction came to be filed in Special Court, Chandrapur for trial according to law. 6. Charge was framed against the accused. It was read over and explained to him. Accused pleaded not guilty and claimed to be tried. In defence, accused stated that the complainant had a misunderstanding that for issuance of the warrant, accused was responsible and he thus harboured bias against him. According to him, he never demanded bribe from the complainant. On the day of trap, when accused was at Pan-shop, all of a sudden, complainant thrusted the marked currency notes in his left pant pocket. When the accused objected and was about to take out marked currency notes from his pocket, he was nabbed by the raiding party and brought to the court hall and thereafter further proceeding was completed. It is the case of accused that he never demanded any bribe amount nor accepted the same, but the amount was thrusted in his left side pant pocket and he is innocent. 7. The Special Judge negatived the point that fell for consideration as to whether prosecution proved that the accused being public servant, accepted or obtained Rs. 20/-and Rs. 100/-from complainant as gratification other than legal remuneration as motive or reward for showing favour in respect of his official functions. Learned Special Judge further answered the point viz. Did the prosecution prove that the accused obtained from complainant pecuniary advantage of Rs. 20/-and Rs. 100/-by corrupt or illegal means or otherwise abusing his position as such public servant and thereby committed criminal misconduct, in the negative. Learned Special Judge consequently acquitted the accused of the offences with which he was charged. 8. I have heard learned Additional Public Prosecutor for appellant-State and learned counsel for the respondent/accused. I have perused entire record including oral evidence that was led by the prosecution. Learned Special Judge consequently acquitted the accused of the offences with which he was charged. 8. I have heard learned Additional Public Prosecutor for appellant-State and learned counsel for the respondent/accused. I have perused entire record including oral evidence that was led by the prosecution. 9. It is not in dispute that at the relevant time accused was posted as Junior Clerk in the Court of 3rd Joint JMFC, Chandrapur where Criminal Case No. 3908 of 1997 against the complainant in the present case was pending. 10. Learned Additional Public Prosecutor argued that findings rendered by the Special Judge are erroneous and contrary to the evidence on record. He submits that learned Special Judge should not have himself involved in arithmetical calculations with regard to the amount possessed by the complainant and expenditure he made on the date of first demand made by the accused. He further contends that learned Special Judge should not have disbelieved the version of complainant and pancha witness. According to learned APP, had the complainant really thrusted currency notes in the pant pocket of accused, he would have immediately reacted and since that had not been done, defence appears to be brought-up and should not have been believed by the Special Judge. He submits that finding of acquittal impugned herein needs to be converted into a finding of conviction and accused be dealt with rigorously and sentenced to maximum jail sentence and fine. 11. On the other hand, learned counsel for the respondent/accused submitted that the prosecution has failed to prove that bribe was demanded by the accused for cancellation of non-bailable warrant which was issued against the complainant. It is submitted that it was prerogative of the learned Magstrate to cancel non-bailable warrant and a junior clerk in the Court cannot have any role in the matter of judicial order which may be passed for cancellation of non-bailable warrant. There is no accusation of any sort that accused, a junior clerk was demanding bribe in connivance with Presiding Officer of the Court. Even adjournments are given by the Presiding Officer and a clerk has to write roznamas and obtain his signatures and he has no power to adjourn a criminal case. He contends that prosecution did not prove that dates were fixed by respondent/accused or that he had any role to issue bailable/non-bailable warrant against complainant. Even adjournments are given by the Presiding Officer and a clerk has to write roznamas and obtain his signatures and he has no power to adjourn a criminal case. He contends that prosecution did not prove that dates were fixed by respondent/accused or that he had any role to issue bailable/non-bailable warrant against complainant. According to learned counsel for the respondent/accused, learned trial Judge did consider the relevant facts and the rulings cited before it in the light of submissions advanced at the Bar and arrive at a logical and right conclusion. He prayed for dismissal of appeal. 12. It is borne out from the evidence of complainant that on 2.7.2001 when the accused had allegedly demanded Rs. 50/-for cancellation of warrant, he was not having that much sum and, therefore, he gave Rs. 20/-to the accused. However, at the same time, he has deposed that he paid penalty of Rs. 50/-imposed by the Court for cancellation of warrant. In the next breath, he states that he was having Rs. 300/-; amount of Rs. 230/-was to be spent over fare for to and for journey from Gondia; Rs. 2.50 were spent by him for breakfast and still he claims that he paid Rs. 20/-to accused initially and then paid Rs. 50/-towards penalty. It appears from the cross-examination of accused that he had stated in the departmental proceedings against the accused that he had paid Rs. 50/-to accused on 2.7.2001. In view of these discrepancies and vague statement of the complainant, learned trial Court, in my opinion, has rightly disbelieved the evidence of complainant as regards alleged payment of Rs. 20/-made by him to the accused on 2.7.2001. 13. As regards the incident of second demand, complainant deposed that he along with decoy witness Pradeep had entered the Court hall while decoy witness Pradeep deposed that he along with complainant and another decoy witness Tadse entered the court hall and raiding party members remained outside. Learned trial Judge has noted variance between the testimonies of complainant and decoy witness Pradeep who has remained silent regarding the alleged demand of money from accused. Witness Pradeep has deposed that accused was given money across the table, but he did not recollect whether the currency notes were kept on the files or aside the files. Learned trial Judge has noted variance between the testimonies of complainant and decoy witness Pradeep who has remained silent regarding the alleged demand of money from accused. Witness Pradeep has deposed that accused was given money across the table, but he did not recollect whether the currency notes were kept on the files or aside the files. He further states that at the time of giving money, decoy witness Tadse was standing behind him and it was he (witness Pradeep) who disclosed to the raiding party the direction to which accused went after he had left the court premises. According to him, there was crowd in the varandah of the court and he could not notice the accused in crowd while complainant or the Investigating Officer does not state about the crowd in varandah. There was no evidence forthcoming as to why there was no quick action to apprehend the accused before he was allowed to go 300 feet away to pan-shop. Learned trial Court has noted in its judgment all these discrepancies in thorough detail. Learned trial Court has inferred probability that the currency notes might have been inserted by complainant in the pant-pocket of the accused who was taken aback and attempted to take them out and finding of traces of phenolphthalein powder on the left hand fingers of the accused was quite possible in the set of facts. The defence was probable under the circumstances. 14. From what is observed above as is borne out from record, impugned judgment and order of acquittal calls for no interference. Even while invoking the provisions of Section 20 of the Act, the Court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. By relying upon V. Venkata Subbarao v. State reported in (2006) 13 SCC 305, learned counsel for the respondent contends that when the demand of illegal gratification itself is not proved in the present case, there is no question of raising presumption under Section 20 of the Act. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Prevention of Corruption Act. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Prevention of Corruption Act. On consideration of facts and circumstances in their entirety in the present case, there is no basis for to arrive at a conclusion that all the ingredients of an offence viz. Demand, acceptance and recovery of the amount of illegal gratification have been satisfied. Further, in my opinion, the High Court will not be justified in interfering with the order of acquittal particularly when presumption of innocence which is available to the accused, is further strengthened by an order of acquittal and when view taken by learned trial Judge was reasonable and probable in the light of evidence led. 15. For all the reasons given above, I do not find any merit in the appeal and it is accordingly dismissed.