Judgment : This Appeal is directed against the Judgment and Order dated 18th June, 2008 passed by learned Special Judge, Gadchiroli in Special Case No. 7 of 2005, whereby the appellant-accused was convicted of the offence punishable under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and was sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 500/-, in default of which to suffer further simple imprisonment for two months for offence punishable under Section 7 of the Prevention of Corruption Act. He is further sentenced to suffer rigorous imprisonment for one year and to pay fine of Rs. 1000/-, in default of which to suffer further simple imprisonment for three months for the offence punishable under Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act. 2. Heard submissions at the bar. 3. Facts stated, in nutshell, are as under: - The appellant-accused was working as senior clerk in the Court of Judicial Magistrate First Class, at Aheri. It is the case of the prosecution that on 11/6/2003, the driver of the complainant had taken Luxury Bus bearing No. MH-31/M-2626. He was prosecuted by P.S.I. Gurnule under the provisions of Motor Vehicles Act and the case was pending before the Court of Judicial Magistrate First Class, Aheri. The said driver did not appear before the Court and, therefore, learned Judicial Magistrate First Class, Aheri had issued non-bailable warrant against him, pursuant to which the said driver was arrested on 27/01/2005 by Police Station Officer, Bhadravati and he was produced before learned Judicial Magistrate First Class, Aheri on 28/01/2005. However, since learned Judicial Magistrate First Class, Aheri was on leave on that day and the said driver was produced before the in charge Court at Gadchiroli. Before that Court, the said driver had prayed for releasing him on bail but his application was rejected and he was sent to jail. The matter was adjourned to 31/01/2005. Therefore, complainant Kailash Ramprasad Sharma attended that Court at Sironcha as the charge of Judicial Magistrate First Class, Aheri was with Judicial Magistrate First Class at Sironcha. Complainant had engaged an Advocate namely; Rajesh Pratap Menganwar. On that day, file of the driver was not produced before the Sironcha Court. On inquiry, the said clerk told complainant that concerned clerk Mr. Complainant had engaged an Advocate namely; Rajesh Pratap Menganwar. On that day, file of the driver was not produced before the Sironcha Court. On inquiry, the said clerk told complainant that concerned clerk Mr. Selokar has not sent case papers as he has not received amount. The complainant, therefore, asked his Advocate to lodge written complaint with the Court but advocate of the complainant avoided to do so. On the same day, the complainant visited the Court of learned Judicial Magistrate First Class, Aheri but the accused was not there and, therefore, he met one peon by name; Thakur. The complainant requested Shri. Thakur to show the house of the accused and it is the case of the prosecution that the complainant met appellant-accused and questioned him as to why case papers of his driver were not sent to the Court at Sirnocha. The appellant replied that there was no any application from his Advocate and, therefore, case papers were not sent. He asked complainant to visit the Court at Aheri on the next day at about 12.30 p.m. and bring Rs. 300/-for himself and he will take case papers after receipt of the amount. The complainant felt that the accused will not send the case papers of his driver namely; Javed Akhtar Pathan without receipt of the amount and, therefore, he had visited the office of Anti Corruption Bureau, Gadchiroli and reported the matter. The report of complainant was reduced into writing by Deputy Superintendent of Police, Anti Corruption Bureau, Gadchiroli– Mr. Khan (hereinafter referred to as “Dy.S.P”.). The said Dy.S.P. asked Block Development Officer, Panchayat Samittee, Gadchiroli to depute two employees to act as panchas. After arrival of panchas, they were introduced with the complainant and other staff. Panchas were read over the report lodged by complainant. They inquired about the correctness of the report from the complainant and after their satisfaction with the contents of report, they signed on that report. Thereafter, three currency notes of Rs. 100/-denomination each were collected from complainant. Thereafter, phenolphthalein powder was applied on those currency notes and those were kept in left side pocket of shirt of complainant. The complainant was directed to give the amount bribe only in case of demand made by accused. The panch Vinod Dhakate was directed to remain in the company of complainant and to keep watch as to how the transaction takes place. The complainant was directed to give the amount bribe only in case of demand made by accused. The panch Vinod Dhakate was directed to remain in the company of complainant and to keep watch as to how the transaction takes place. Accordingly, pre-trap panchanama was prepared. Thereafter, the raiding party along with panchas and complainant went to Aheri. At about 1.00 p.m. complainant and panch no. 1 were standing near a tea stall while officials of raiding party along with panch no. 2 were standing nearby place. It is the case of the prosecution that the complainant had asked the accused to do his work and told that he should accept the amount of Rs. 300/-as demanded by him on first day. It is further case of the prosecution that the accused had accepted the amount of Rs. 300/-and was recovered from him. The numbers of those currency notes were found tallying with the number of currency notes noted in pre-trap panchanama. On sprinkling solution of sodium carbonate on those currency notes, stains of purple colour appeared on those currency notes. Thereafter, those currency notes were seized. Thereafter, Dy.S.P. prepared report and sent the same to Police Station, Aheri along with covering letter. On the basis of this report, First Information Report No. 3002 of 2005 came to be registered. The said Dy.S.P. himself has carried out the investigation. He sent seized muddemal to C.A. for analysis. Thereafter, said Dy.S.P. recorded statements of witnesses and thereafter he sent case papers to the Superintendent of Police, Anti Corruption Bureau, Nagpur for sending the same to the sanctioning authority for according sanction. Accordingly, sanction was accorded on 29/09/2005 and the accused was charge-sheeted upon completion of investigation and charge was framed. The accused pleaded not guilty and claimed to be tried. 4. It is submitted on behalf of the appellant that the evidence regarding first demand is clouded with doubt because according to evidence of the complainant, Peon of the Court -Shri. Thakur had accompanied with the complainant to the house of the accused namely; Shri. Selokar. Thus, Shri. Thakur had arranged meeting between the complainant and the accused. This contention of the complainant in his complaint to the Anti Corruption Bureau was later given ‘go-by’ as in the course of his evidence, complainant changed this contention by stating thus; “One peon having surname Thakur was present there. Thus, Shri. Thakur had arranged meeting between the complainant and the accused. This contention of the complainant in his complaint to the Anti Corruption Bureau was later given ‘go-by’ as in the course of his evidence, complainant changed this contention by stating thus; “One peon having surname Thakur was present there. I enquired from him about accused. On that he told that accused has gone to his house. I, therefore, requested the peon to show me the house of accused. Therefore, that peon had shown me the house of accused. I enquired from accused as to why the papers of my driver were not sent to the Court at Sironcha.” Thus, it was contended in the complaint that Shri. Thakur accompanied with the complainant at his request and arranged a meeting of the complainant and the accused but Shri. Thakur was not examined as witness for the reasons best known to the prosecution. Although it is alleged by the complainant that the accused had demanded sum of Rs. 300/-during that meeting, the complainant deposed thus; “He (accused) asked me to visit the Court at Aheri on next day and give him Rs. 300/-, and thereafter he would send the papers of my driver to the Court at Sironcha.” 5. According to evidence of the complainant, clerk namely; Shri. Akre, on inquiry told him that Shri. Selokar had not given file to him and also told that accused had not given file as he had not received the amount. The learned Advocate for the appellant argued that Shri. Akre, who allegedly told about the accused to the complainant, was also material witness like Shri. Thakur, but he was not examined. Therefore, learned Advocate for the appellant further argued that there was no cogent and acceptable evidence regarding alleged bribe in the sum of Rs. 300/-made by the accused. During the course of cross-examination, complainant appears to have stated that his driver was arrested by police on 27/01/2005 and produced before the Court on 28/01/2005. The application for bail was moved by Advocate for the driver was also rejected. Thereafter, driver had filed a pursis admitting his guilt. On the same day, his Advocate informed complainant over telephone that no order was passed pursuant to the pursis. The application for bail was moved by Advocate for the driver was also rejected. Thereafter, driver had filed a pursis admitting his guilt. On the same day, his Advocate informed complainant over telephone that no order was passed pursuant to the pursis. The complainant was displeased with the Court procedure as no action was taken by the Court on the basis of admission of the guilt by his driver on 28/01/2005 and because of non production of his file before the Court at Sironcha on 31/01/2005. Under these circumstances, the complainant was anguished because his driver was languishing in jail and decided to approach A.C.B. Office at Gadchiroli. The complainant had specifically stated in the complaint dated 01/02/2005 as under: - “HINDI” 6. Thus, according to complainant, demand was made by the accused, while Shri. Thakur (peon) of the Court was present and had arranged meeting of the complainant with Shri. Selokar (accused), however, while deposing before the Court, the complainant tried to improve his version on the ground that he requested the peon to show the house of the accused and the peon had shown the house of the accused. 7. As regards evidence of PW-2, who is panch No. 1 – Shri. Dhakate, his evidence is criticized on the ground that he had made material improvement over the statement made before the police. When questioned, he stated thus; “The accused had demanded the amount from the complainant at the tea stall. I cannot assign any reason as to why this fact is not appearing in my statement.” This panch witness also claimed that the accused had taken out purse from his full-pant and gave Rs. 50/-to the clerk – Mr. Akre. Shri. Akre was not examined as prosecution witness. 8. Learned Advocate for the appellant also invited my attention to the letter dated 01/02/2005 (Exh. 26) from Panchayat Samittee, Gadchiroli to Dy.S.P., whereby Shri. R. V. Thakre and V. N. Dhakate were directed to attend ACB’s office at about 10:00 a.m., on 01/02/2005. While PW-2 in his deposition stated that on 01/02/2005, he had been to Anti Corruption Bureau’s office at about 8:30 a.m. This contradictory oral evidence in document at Exh. 26 regarding time of attendance of the panch witness at the Anti Corruption Bureau’s office also create a doubt about genuineness of the prosecution case. While PW-2 in his deposition stated that on 01/02/2005, he had been to Anti Corruption Bureau’s office at about 8:30 a.m. This contradictory oral evidence in document at Exh. 26 regarding time of attendance of the panch witness at the Anti Corruption Bureau’s office also create a doubt about genuineness of the prosecution case. In the panchanama (Exh.20), Dy.S.P. had given some instructions, of which instruction No. 6 is as below; “HINDI” But the above instruction was not followed by the complainant. According to his evidence, when he along with panch Dhakate and accused went at tea stall situated near the Court; at the tea stall, he had asked the accused to do his work and told accused that he should accept the amount of Rs. 300/-as demanded by him on first day. Thus, instead of accused demanding the bribe amount, complainant had insisted upon the accused to accept the amount of Rs. 300/-. 9. Learned Advocate for the Appellant submitted that when prosecution withheld evidence of material witness like peon of Court Shri Thakur, who arranged meeting of the complainant with the accused and during the said meeting the first demand was made for Rs. 300/-, which was not at all proved by the prosecution. The evidence of complainant in the examination-in-chief itself clearly indicates that he compelled the accused to accept the sum of Rs. 300/-. Under these circumstances, even if amount of Rs. 300/-was recovered as a result of raid, that would not assist the prosecution to prove the offence as alleged against the appellant because of inconsistencies as pointed out between the complaint and evidence by PW-1. There was testimony regarding actual time when complainant reached A.C.B’s office on 01/02/2005, because according to complainant, he reached at 10:00 a.m. while according to PW-2, he had reached A.C.B’s office at 08:30 a.m. There was no possibility of panch being introduced with the complainant at 8:30 a.m. when complainant admitted in his cross-examination that he had reached ACB’s office at 10:00 a.m. on 01/02/2005. 10. Evidence of PW.1 -complainant was also found inconsistent with the evidence of PW.2. According to PW.2, in panchanama No. 2, after parking vehicle near Gat Sanstha Kendra at Aheri, he along with the complainant went to the tea stall, which is in front of the Court. 10. Evidence of PW.1 -complainant was also found inconsistent with the evidence of PW.2. According to PW.2, in panchanama No. 2, after parking vehicle near Gat Sanstha Kendra at Aheri, he along with the complainant went to the tea stall, which is in front of the Court. While they were waiting there, at that time one person wearing white full shirt & cement colour full pant and one other person came there. While according to PW.2, in panchanama No. 1, they met accused in the court premises and he directed them to wait for him nearby tea stall. Thereafter, they were waiting for accused at a tea stall situated near the Court and accused came there within 10 minutes. While according to complainant, he along with panch Dhakate went in the court premises. At that time, the accused was coming out of the Court building and then complainant asked accused to do his work. Thus, there were inconsistencies in respect of material particulars of the facts sought to be proved creating doubt in the mind as to whether case of the prosecution was genuine. 11. Learned Advocate for the appellant also made reference to the conversation took place between complainant and accused to the effect that the accused ordered tea stall keeper for preparing tea and complainant told the accused thus; “HINDI” “Complainant : -Accept the money which you demanded yesterday, take my file immediately, talk to Judge saheb and do my work.” 12. Thus, regarding panchanama No. 2, it is submitted that the evidence of witness No. 2 was also material and his evidence was also withheld by the prosecution creating doubt about the genuineness of the prosecution case. Learned Advocate for the appellant, therefore, submitted that there was no legal evidence about the demand made by the accused from the complainant. 13. It is fact of common knowledge that when such crimes are committed and bribe is demanded, often bribe may be demanded in secrecy but when the case is made out that particular person was present, who had arranged meeting between the complainant and the accused, when accused allegedly demanded bribe then such witness ought not to have been withheld by the prosecution and this witness was not examined for the reasons best known to the prosecution. Therefore, the testimony of the complainant, who was in fact ill-motivated as an aggrieved party because his driver was in the jail and was not released on bail, which was the reason for which he may have planned to trap the accused in corruption case. 14. Learned Advocate for the appellant relied upon the ruling in the case of RameshRamdas Vaidya Vs. State of Maharashtra reported in 2004 ALL MR (Cri) 611, in which this Court had allowed the appeal by setting aside the conviction of the appellant for offence punishable under Section 7 and sections 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. In that case also, when complainant inquired with the accused about his work and told the accused that he had brought the amount as stated by the accused and asked whether he should pay the amount and accused then replied in the affirmative and he took out the amount and handed it over to the accused. In the identical facts situation regarding alleged demand for bribe, in that case also there was a witness available but for the reasons best known to the prosecution, evidence of material witness was not adduced and as in the present case and in that case also there was variance between the complainant and the panch witness and during the trap there was no demand whatsoever by the accused as the evidence of the complainant clearly indicated that there was no demand emanated from the accused. 15. Learned Advocate for the appellant therefore submitted that the observations made by this Court are attracted in the facts and circumstances of the present case as well. He, therefore, prayed for granting benefit of doubt to the appellant and to allow the appeal by setting aside the impugned judgment and order. 16. On the other hand, learned APP submitted that although peon of the Court namely; Shri Thakur was not examined, the evidence of the complainant and the panch witness was adequate to record finding of guilt against the accused. He further submitted that inference of demands can be raised on the basis of evidence made by the prosecution and since the amount was recovered from the possession of the accused, he has been rightly convicted. 17. He further submitted that inference of demands can be raised on the basis of evidence made by the prosecution and since the amount was recovered from the possession of the accused, he has been rightly convicted. 17. It is settled legal position that in order to prove the charge of corruption as punishable under the Prevention of Corruption Act, the prosecution is required to prove that; there was demand made by the accused coupled with voluntarily payment of bribe by the complainant and acceptance of illegal gratification by the accused. Thus, ingredients are sine qua non for bringing home the guilt of the accused under Prevention of Corruption Act. If by cross-examination, upon preponderance of probabilities, the accused is successful to point out that the prosecution case is doubtful or may not be genuine regarding proving of demand from the accused and if money was accepted by reason other than the motive or reward, mere recovery from the accused by itself would not prove the offence of corruption on the part of the accused. Needless to state that the accused can take advantage of material inconsistencies in the evidence of prosecution witnesses who were examined and also the fact that material witnesses were withheld by the prosecution. For all these reasons, the benefit of doubt has to be given to the accused. Therefore, I have no other option but to allow the appeal. Hence, Appeal is allowed. The impugned judgment and order of conviction is set aside. The bail bonds shall stand discharged. Amount of fine, if any, shall be refunded to the accused.