JUDGMENT : P. K. JAISWAL, J. The appellant, at the relevant time, in the year 2002, was working as District Organiser at Tribal Welfare Department, Dewas. The allegations levelled against the said appellant were of demanding and accepting the illegal gratification, other than legal remuneration. Therefore, he was put on trial for the commission of the offences under sections 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (for short 'P.C. Act') 2. The learned Special Judge, Dewas in Special Case No. 2/04 passed judgment and order of conviction and sentence dated 24-2-2006, whereby the learned Special Judge was pleased to convict the appellant - accused under section 7 of the P. C. Act and awarded sentence to the appellant to suffer RI for one year and to pay a fine of Rs. 5,000/- in default of payment of fine to suffer imprisonment for 6 months. The appellant was also ordered to suffer RI for two years and to pay fine of Rs. 5,000/- in default, to suffer imprisonment for 6-6 months on each count for offence punishable under section 13(1)(d) read with section 13(2) of the P. C. Act. All the sentences shall run concurrently. 3. Accused No. 2, Biharilal, son of Gangaram Sisodiya, who was working as peon in the Office of appellant was also tried along with appellant. The allegations levelled against him were of demanding of Rs. 5,000/- from the complainant, but he was acquitted by the trial Court. 4. Subhash, son-in-law of the original complainant-Samander Singh was murdered on 20-2-1996. His widow, Smt. Sangitabai, daughter of the original complainant was entitled for ex-gratia amount of Rs. 2,00,000/- under the provisions of M. P. Harijan and Adivasi Rahat Yojna Nigam, 1979 and Akashmik Yojna, 1995 framed under the provision of S. C. and S. T. (Prevention of Atrocities) Act, 1989. The State Government by order dated 20-1-1997 sanctioned the said amount of Rs. 2,00,000/- and directed for payment of 75% amount to the widow of the deceased. Out of 75% amount, Rs. 10,000/- was paid in cash on the date of murder and Cheque of rest of the amount of Rs. 1,40,000/- was deposited in the joint account of Tribal Welfare Department and Smt. Sangitabai. 2,00,000/- and directed for payment of 75% amount to the widow of the deceased. Out of 75% amount, Rs. 10,000/- was paid in cash on the date of murder and Cheque of rest of the amount of Rs. 1,40,000/- was deposited in the joint account of Tribal Welfare Department and Smt. Sangitabai. On 19-9-1999 accused persons who have committed murder of Subhash, were convicted by the II Additional Sessions Judge, Dewas in S. T. No. 90/1996 under the provisions of Indian Penal Code, but none of the accused persons were convicted under the provisions of SC and ST (Prevention of Atrocities) Act, 1989. By order dated 30-1-2002 (Ex-P/23), the Tribal Welfare Department directed for release of Rs. 1,40,000/- in her favour. On the basis of the said order, the amount of Rs. 1,40,000/- was deposited in the account of Smt. Sangitabai on 31-1-2002. 5. As per complaint dated 25-2-2002 (Ex-P/1) lodged by original complainant-Samandar Singh and Narayan Singh (PW1) met the appellant, who was at the relevant point of time was working as District Organiser with regard to release of rest of the ex-gratia amount of Rs. 50,000/-, he demanded Rs. 15,000/- towards illegal gratification from him and stated that Rs. 1,500/- was paid by him at the of release of Rs. 1,40,000/- and bring rest of the amount of bribe of Rs. 13,500/-. It is alleged that Samundarsingh was not prepared to pay the money and he sought the advise of his friend Narayansingh Balai (PW1), who gave the idea of complaining the Lokayukt. It is also stated that accused No. 2 Biharilal, peon of appellant No. 1 also demanded Rs. 5,000/- from him. As per Ex-P/1, the appellant demanded Rs. 13,500/- towards illegal gratification from the complainant for releasing the balance amount of Rs. 60,000/- and doing the said work. As Samandarisngh don't want to pay bribe and therefore, the original complainant and Narayansingh (PW1) went to Lokayukt Office at Dewas and narrated the whole incident. On receipt of a complaint from Samunder Singh, orally Constable Harish Chale (PW5) reduced the same in writing (Ex-P/1). Thereafter, Samandarsingh and Narayansingh signed the same. A tape recorder was also provided to them with a direction to record the conversation taking place between them and the accused at the time of handing over the bribe money. 6. On 26-6-2002, a trap was arranged. The numbers of currency notes of Rs. Thereafter, Samandarsingh and Narayansingh signed the same. A tape recorder was also provided to them with a direction to record the conversation taking place between them and the accused at the time of handing over the bribe money. 6. On 26-6-2002, a trap was arranged. The numbers of currency notes of Rs. 100/- and Rs. 50/- denomination were noted by Dy. S. P. Shrivastava. Currency notes were treated with phenolphthalein powder and were kept in the pocket of complainant. He was given necessary instructions. After completing usual formalities the trap was arranged by Dy. Superintendent of Police, Lokayukt and first part of panchanama was prepared. Thereafter, Lokayukt members including the complainant reached at the office of the appellant around 1:30-1:35 PM where the accused was not there. When they went to the office he had gone for lunch. After lunch when he returned at 2:30 PM, the complainant Samandarsingh and Narayansingh went to Office, at 3:00 PM where the accused met the complainant. The accused demanded Rs. 15,000/- as illegal gratification. As the complainant arranged only Rs. 3,000/-, therefore, he gave the said amount to the accused. Immediately, after giving the amount, the complainant made prearranged signal to the members of the raiding party and amount of Rs. 3,000/- was recovered from the pant of the accused. 7. After usual investigation, the Investigating Agency submitted the charge-sheet. The prosecution had examined the witnesses and got exhibited a large number of documents. During trial, original complainant Samandarsingh died and, therefore, his Court statement could not be recorded. The witnesses examined by the prosecution viz. Narayansingh (PW1), Dilip Kumar Jain (PW2), Ramakant (PW3), Ramkishore Gupta (PW4), Harish (PW5), Nirpat Choudhari (PW6), Bhupendra Upadhayay (PW7) and Rameshchandra Singh Chudwat (PW8). The appellant was put on trial, where he abjured his guilt and claimed to be tried and the learned Judge has recorded the statement of the present appellant-accused under section 313 of the Code of Criminal Procedure, 1973. The accused in his defence examined DW1 Iqbal Khan, DW2 Rajesh Parmar and DW3 Mazar Khan and submitted the documents vide Ex-D/1 to D/34. 8. As stated above, the learned Special Judge, Dewas, who tried the case against the accused, after appreciating the evidence on record, found the case against accused proved and convicted him for offence alleged as stated above. 9. 8. As stated above, the learned Special Judge, Dewas, who tried the case against the accused, after appreciating the evidence on record, found the case against accused proved and convicted him for offence alleged as stated above. 9. Learned Counsel Shri S. R. Saraf, appearing on behalf of the appellant submitted that there is no evidence to convict the appellant for the offences for which the appellant has been held guilty. He further submitted that the charge was framed against the accused from the evidence of PW1 to PW8 whereas demand for illegal gratification was not proved by the prosecution. He also submitted that Narayansingh (PW1) has not supported the case of the prosecution. He submitted that the defence of the accused is totally ignored so far as the prosecution case is concerned. Therefore, as per his submission, the learned Special Judge has not considered this material aspect, while passing the judgment and order of conviction and sentence. It is further submitted that in the case of Prevention of Corruption Act, three aspects viz. (i) initial demand (ii) demand before acceptance and (iii) acceptance and recovery of the amount are required to be proved. The prosecution has to prove such three aspects beyond reasonable doubt. If either of this aspect is not established beyond reasonable doubt, the case would fail and the accused deserves to be acquitted. He further submitted that in the present case, the demand of Rs. 15,000/- is not been proved beyond reasonable doubt and if the said aspect is not proved, then the case fails. He drew our attention to the written complaint (Ex-P/1) and Court statement of Narayansingh (PW1) and submitted that judgment and order of conviction and sentence be set aside by allowing this appeal. 10. On the other hand, Shri Arvind Ghokhale learned counsel for the respondent-Lokayukt, vehemently opposed the submissions made by the learned Advocate Shri S. R. Saraf. He has read the complaint and oral evidence of Narayansingh (PW1), who was examined by the prosecution and submitted that the prosecution has very well established the case against the accused. He also submitted that there are minor contradictions and omissions in the statement of Narayansingh (PW1) which cannot be treated as not reliable and not trustworthy and submitted that the demand, acceptance and recovery of the trap amount are proved cogently before the trial Court. 11. He also submitted that there are minor contradictions and omissions in the statement of Narayansingh (PW1) which cannot be treated as not reliable and not trustworthy and submitted that the demand, acceptance and recovery of the trap amount are proved cogently before the trial Court. 11. As per complaint (Ex-P/1) lodged by original complainant had Narayansingh (PW1), on 25-2-2002, the appellant demanded Rs. 15,000/- for releasing of the amount of Rs. 50,000/- to Smt. Sangitabai and after adjusting the amount of Rs. 1,500/- which was paid earlier when Rs. 1,40,000/- was released in favour of Smt. Sangita Bai, he demanded Rs. 13,500/- as bribe whereas PW1 in para 2 of his Court statement has deposed that he and Samandar Singh number of times visited the office of the appellant for releasing of ex-gratia amount of her daughter. First time a cheque of Rs. 1,40,000/- was given by the appellant and at the time of delivery of cheque he demanded Rs.15,000/- as bribe on which complainant Samandar Singh has stated that amount of bribe will be paid after encashment of cheque. As Rs. 15,000/- was not arranged by complainant Samandar Singh and only Rs. 3,000/- was arranged and, therefore, the said amount was paid as bribe to him on 26-2-2002. In para 3, this witness has further stated that they went along with complainant Samandar Singh to the office of Lokayukt, Ujjain one week prior to the receipt of Cheque of Rs. 1,40,000/- and lodged the complaint against the appellant-accused regarding his demand and also gave a written complaint to the Lokayukt office. The Deputy Superintendent of Lokayukt, providing one tape recorder to the complainant with a direction to record the conversation taking place between the original complainant Samandar Singh and the accused at the time of handing over the bribe money. As per his statement, the tape was given on 25-2-2002. In paras 6 and 7 he stated that Rs. 3,000/- was offered by Samandarsingh, the appellant accepted the amount and put the same in his pant. As per para 10 of his statement, the tape recorder was returned vide Ex-P/5. In para 14, he has stated that Rs. 15,000/- was demanded by the appellant Shrikant prior to the release of second instalment of Rs. 50,000/- and this 15,000/- was demanded by him after issuance of Cheque of Rs. As per para 10 of his statement, the tape recorder was returned vide Ex-P/5. In para 14, he has stated that Rs. 15,000/- was demanded by the appellant Shrikant prior to the release of second instalment of Rs. 50,000/- and this 15,000/- was demanded by him after issuance of Cheque of Rs. 1,40,000/- and, therefore, when they had gone to the office of appellant in respect of release of second instalment of Rs. 50,000/- i.e. 25% of ex-gratia amount, he demanded a sum of Rs. 15,000/-. This witness in para 21 of his statement has deposed that Rs. 1,40,000/- was received by Smt. Sangitabai in 2002. He denied that cheque of Rs. 1,40,000/- was received by Smt. Sangita Bai in January, 1997. He has also admitted that tape recorder conversation was not audible. 12. As far as the question of demand of bribe by the accused is concerned, there is sole evidence of Narayansingh (PW1). Therefore, whether any demand was made by the accused at the time of delivery of bribe money to accused, except the evidence of Narayansingh (PW1), there is no other evidence. Though, according to prosecution, complainant was given a tape-recorder and he recorded the conversation (Ex-P/5), which took place between complainant Samandar Singh and accused, yet the said tape was not found audible. The conversation of tape recorder was failed. In the absence of the said tape recorded version, the transcript prepared by the Investigating Officer and other witnesses cannot be accepted. 13. On close examination of the evidence of Narayansingh (PW1), we find that his evidence in respect of demand of Rs. 15,000/- by way of bribe by the accused is discrepant and contradictory. We do not find it safe to rely on the evidence of complainant Narayansingh (PW1) on the question of demand of bribe allegedly made by the accused. 14. The Supreme Court in the case of Smt. Meena Balwant Hemke vs. State of Maharashtra, AIR 2000 SC 3377 has held that the law has always favoured the presence and importance of shadow witness in the trap party not only to facilitate such witness to see but also overhear what happens and how it happens. Hence, what transpired between appellant and complainant before the money was received by the accused-appellant is essentially required to be brought on record. Hence, what transpired between appellant and complainant before the money was received by the accused-appellant is essentially required to be brought on record. From the testimony of Narayansingh (PW1), it is not proved that appellant ever made demand of bribe and accepted the same from original complainant Samandar Singh. True, there is presumption of acceptance of bribe under section 20 of the Act, if there is recovery from the accused, but, before such presumption can be drawn, the prosecution is obliged to prove the burden of making demand of bribe and acceptance of the same by the accused. To us, the statutory presumption would come into play only when the initial burden of making demand of bribe and acceptance of it is proved by the prosecution. There are material contradictions and discrepancies in the testimony of Narayan Singh (PW1) about the demand of bribe, it would not be safe to rest conviction upon his testimony. 15. The Apex Court in the case of T. Subramanian vs. State of M. P., (2006) 1 SCC 401 has laid down the law that in the trap case mere recovery of money would not be sufficient to hold that accused made demand of bribe and accepted the same, if the mitigating circumstances and the evidence do not warrant that bribe was ever demanded and accepted by the accused. 16. In the present case, there is no corroboration of evidence of Narayansingh (PW1), because no witness of trap party accompanied the original complainant Samandar Singh nor Nayaran Singh (PW1) was with him at the time when money was demanded and paid to the appellant to overhear what transpired between appellant and Samandar Singh and what type of conversation took place when the currency notes were given to him. 17. For the above mentioned reasons, we are of the view that the charges under sections 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act are not proved against the appellant. Eventually, this appeal succeeds and is hereby allowed. The judgment of conviction and order of sentence is hereby set aside and the appellant is acquitted from all the charges. The amount of fine, if deposited, be refunded to him. The appellant is on bail, his bail bond are discharged.