JUDGMENT 1. The appellant stands convicted for an offence punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and sentenced to R.I. for one year and to pay fine of Rs.5,000/-, in default of which to undergo further R.I. for three months and R.I. for one year and to pay fine of Rs.5,000/-, in default of which to undergo R.I. for three months, by the Special Judge, Jalgaon, by judgment dated 18.1.2001, in Special Case No. 56 of 1996, by this appeal questions the correctness of his conviction and sentence. 2. Facts, in brief, as are necessary for the decision of this appeal, may briefly be stated thus : PW3 Kalidas Suryawanshi, who at the relevant time was attached to the Anti Corruption Bureau, Jalgaon as a Deputy Superintendent of police, was present in the office on 11.1.1996. PW1 Chudaman came and made an oral grievance against the appellant in respect of demand of bribe, and accordingly, he was asked to come on the next day and bring the amount demanded by the appellant. Accordingly, on 12.1.1996, PW3 Deputy Superintendent of Police Suryawanshi recorded the report/complaint of PW1 Chudaman at Exh.10. After recording the complaint of PW1 Chudaman, presence of the panch witnesses, namely PW2 Sunil and another panch was secured. In the presence of the panch witnesses, demonstration about the use of anthracene powder was shown to the witnesses. The marked currency notes then were smeared with anthracene powder and the complainant was asked to tender the amount to the accused only when demanded by the accused. The complainant was further asked to turn his cap in order to indicate that the amount was accepted by the appellant/accused. A panchanama at Exh.12 was accordingly drawn. The raiding party, which comprised of police officers, panch and PW1 Chudaman, therefore, proceeded to the office of appellant, who at the relevant time was working as Sub-Engineer, M.S.E.B. at Chalisgaon. The complainant is alleged to have demanded and accepted the amount through accused no.2. On the complainant giving the necessary signal, the raiding party apprehended the accused and recovered an amount of Rs.500/- from the pocket of the appellant. Tests for determination of anthracene powder were carried out, and accordingly, second panchanama at Exh.13 was drawn. The marked currency notes were seized and thereafter the complaint was lodged by PW3 Deputy Superintendent of Police Suryawanshi against the accused. Tests for determination of anthracene powder were carried out, and accordingly, second panchanama at Exh.13 was drawn. The marked currency notes were seized and thereafter the complaint was lodged by PW3 Deputy Superintendent of Police Suryawanshi against the accused. 3. On the basis of the aforesaid complaint, an offence was registered against the accused. PW4 Ramchandra granted the necessary sanction to prosecute the appellant at Exh.20. Further to the filing of the charge sheet, the Trial Judge vide Exh.4 framed charge against the appellant and accused no.2 for offence punishable under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act r/w Section 34 of the Indian Penal Code. 4. The accused denied their guilt and claimed to be tried. 5. Prosecution in support of its case, examined four witnesses. The trial court upon appreciation of the evidence on record convicted and sentenced the appellant as afore stated. 6. In order to effectively deal with the submissions advanced before me by Shri K.C. Sant, learned counsel for the appellant and the learned A.P.P. for the State, it would be useful to refer to the evidence of the prosecution witnesses. 7. PW1 Chudaman claims that he had dug a well in his agricultural land, and therefore, was in need of electric connection. He had accordingly applied for installation of electric meter. He was made to run from pillar to post and was kept waiting nearly for a year. Chudaman, therefore, approached the appellant/accused, who is alleged to have demanded initially Rs.1,000/-. At the request of Chudaman, the amount was reduced to Rs.500/-. On the day of trap, PW1 Chudaman accompanied by PW2 Sunil went to the office of the appellant/accused and the appellant/accused had asked PW1 Chudaman if he had brought the amount. PW1 Chudaman replied in the affirmative. The appellant/accused had directed that amount be handed over to accused no.2. Accused no.2 had received the amount from PW1 Chudaman and after counting the same had handed over to the appellant, who had placed it in his pocket. 8. In cross-examination, PW1 Chudaman had admitted that they were waiting in front of the office of the appellant till about 12.30 p.m. as the appellant had come late. Chudaman has also admitted that original accused no.2 was known to him as accused no.2 was resident of his village. 8. In cross-examination, PW1 Chudaman had admitted that they were waiting in front of the office of the appellant till about 12.30 p.m. as the appellant had come late. Chudaman has also admitted that original accused no.2 was known to him as accused no.2 was resident of his village. Chudaman had admitted that there was no talk between Chudaman and accused no.2 in respect of the visit of Chudaman to the office of the appellant. 9. PW2 Sunil, a shadow witness, states that on entering the office of the appellant/accused, the complainant had greeted the appellant/accused and had asked if his work was done. The appellant/accused asked the complainant as to whether he had brought the money. PW2 Sunil states that thereafter Chudaman had handed over the money to original accused no.2, who had in turn handed it over to the appellant/accused, who had placed it in his pocket. PW2 Sunil makes no reference to the appellant/accused making a demand for payment of the money or the appellant/accused directing Chudaman to hand over the amount to accused no.2. Accused no.2 has been acquitted by the trial court on the ground that accused no.2 was not aware as to why the afore said amount had been given to him. 10. Shri K.C. Sant, learned counsel for the appellant has placed reliance on the judgment of the Supreme Court in the case of Panalal Damodar Rathi vs State of Maharashtra AIR 1979 SC 1191 to urge before me that in the light of the discrepant evidence in respect of demand alleged to have been made by the appellant/accused, the appellant/accused is entitled to be given the benefit of doubt. It is also urged before me by Shri Sant, learned counsel for the appellant, by relying on the judgment of the Supreme Court in the case of Suraj Mal vs The State (Delhi Administration) AIR 1979 SC 1408 . that mere recovery of the tainted amount divorced from the background regarding demand and payment would not raise presumption against the accused. It is also urged by Shri Sant, learned counsel for the appellant that in the light of the variance in the evidence of Chudaman and Sunil, the appellant is entitled to be given the benefit of doubt. 11. Learned A.P.P. supported the findings arrived at by the trial court. 12. It is also urged by Shri Sant, learned counsel for the appellant that in the light of the variance in the evidence of Chudaman and Sunil, the appellant is entitled to be given the benefit of doubt. 11. Learned A.P.P. supported the findings arrived at by the trial court. 12. Perusal of evidence of PW1 Chudaman and PW2 Sunil certainly indicates that PW2 Sunil makes no reference in respect of demand being made by the appellant for paying the amount of Rs. 500/- to him. Similarly, the appellant also did not ask the complainant to pay the amount to accused no.2. The evidence of PW1 Chudaman and PW2 Sunil, therefore, is at variance in respect of the demand by the appellant and his direction for handing over the amount to accused no.2. In the light of such discrepant evidence, according to me, the appellant would be entitled to be given the benefit of doubt. 13. Mere recovery of the tainted currency note by itself would not raise any presumption against the appellant/accused, nor is it sufficient to prove the offence against the appellant. A reference at this stage may usefully be made to the judgment of the Supreme Court in the case of Banarsi Dass vs State of Haryana AIR 2010 SC 1589 . The Supreme Court in the said judgment has held that recovery of the tainted notes divorced from the evidence in respect of demand and acceptance would not amount to establishing the offence against the accused beyond reasonable doubt. 14. In the present case, therefore, according to me, in the light of the discrepant evidence of PW1 Chudaman and PW2 Sunil in respect of demand and acceptance of the amount, the appellant/accused is entitled to be given the benefit of doubt. 15. Accordingly, Criminal Appeal No.47 of 2001 is allowed and the conviction and sentence of the appellant is hereby quashed and set aside and the appellant is acquitted of the offence with which he was charged and convicted. Fine, if paid, by the appellant be refunded to him. His bail bonds stand cancelled.