Judgment : 1. This Criminal Appeal is filed against the judgement dated 15.02.2008 made in Special CC.No.15 of 2006 by the learned Chief Judicial Magistrate, Nagapattinam, thereby (a) convicting and sentencing the Appellant/A1 for the offence under Section 7 of the Prevention of Corruption Act, 1988 to undergo six months Rigorous Imprisonment and to pay a fine of Rs.500/-, in default to undergo three months Rigorous Imprisonment and for the offence under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 to undergo one year Rigorous Imprisonment and to pay a fine of Rs.500/-, in default to undergo three months Rigorous Imprisonment and (b) convicting and sentencing the Appellant/A2 for the offence under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 to undergo one year Rigorous Imprisonment and to pay a fine of Rs.500/-, in default to undergo three months Rigorous Imprisonment and (c) ordering the sentences to run concurrently. 2. The case of the Prosecution is as follows:- a. PW.5 is the sister of PW.1. PW.5 purchased 7 cents of land and a house from one Ammena Bivi on 30.5.2003. For transfer of patta in the name of PW.5, PW.1 gave an application on 11.1.2005 at Thiruthurai Poondi Taluk Office along with Bank Receipt of Rs.20/-. After 20 days, PW.5 again went to the Taluk Office and enquired for patta transfer and she was told to get certificate from the concerned Village Administrative Officer and PW.5 told the same to PW.1. On 9.3.2005 PW.1 went to Udayamarthandapuram VAO's Office, where A1 was working as Village Administrative Officer and asked A1 about patta transfer in the name of PW.5. A1 replied that statement had to be given before the Taluk Office, for which A1 demanded Rs.700/-as bribe. PW.1 went again on 29.3.2005 at 3.00 p.m. and asked A1 for patta transfer, to which, A1 again demanded Rs.700/- as bribe. Since PW.1 was not willing to give the bribe amount, he made a complaint Ex.P1 to PW.10 Inspector of Police, Vigilance and Anti Corruption, Nagapattinam on 30.3.2005 at 9.00 a.m which was registered in Cr.No.11/2005 under Section 7 of the Prevention of Corruption Act, 1988. Ex.P12 is the printed copy of the First Information Report. Since PW.1 was not willing to give the bribe amount, he made a complaint Ex.P1 to PW.10 Inspector of Police, Vigilance and Anti Corruption, Nagapattinam on 30.3.2005 at 9.00 a.m which was registered in Cr.No.11/2005 under Section 7 of the Prevention of Corruption Act, 1988. Ex.P12 is the printed copy of the First Information Report. b. PW.10, after getting approval, laid a trap with official witness PW.2 and one P.Mathiazhagan and demonstrated the significance of phenolphthalein test to them and prepared a entrustment mahazar duly attested by the witnesses. The trap team went to the office of the Village Administrative Officer. PW.1 met A1 inside his office and PW.2 waited outside. A1 had collected the copy of the petition, receipts for Rs.20/-and the original documents from PW.1 and demanded the bribe amount and PW.1 gave the tainted money of Rs.700/- to A1. A1 had told PW.1 that the patta transfer in the name of his sister would be sent to him within 10 days and that he need not go to the Taluk Office. Thereafter, PW.1 came out of the Office and gave the prearranged signal. On seeing the prearranged signal, PW.10 and the trap party went inside the office and after ascertaining the facts from PW.1, PW.10 introduced himself and the trap party to the accused. c. Phenolphthalein test was conducted on both the hand fingers of A1 and A2 and was found positive. When asked for the bribe amount, A1 had produced Rs.650/-from his left side shirt pocket and A2 had produced Rs.50/-from his shirt left side pocket. Both the shirt pockets were also subjected to phenolphthalein test and were found positive. The numbers of the currency notes were verified with the entrustment mahazar and seized. All the 6 tested solution bottles with the currency notes and the connected documents were seized under a cover of mahazar. Thereafter, the accused were arrested and sent to judicial remand. Thereafter, PW.11 Inspector of Police took up the case for further investigation. PW.11 examined the witnesses and recorded their statements. After completing investigation and after getting sanction order from PW.3, PW.11 filed a final report against the Appellants under the relevant provisions of the Prevention of Corruption Act, 1988. 3. The case was taken on file in Special CC.No.15 of 2006 by the learned Chief Judicial Magistrate, Nagapattinam and necessary charges were framed. After completing investigation and after getting sanction order from PW.3, PW.11 filed a final report against the Appellants under the relevant provisions of the Prevention of Corruption Act, 1988. 3. The case was taken on file in Special CC.No.15 of 2006 by the learned Chief Judicial Magistrate, Nagapattinam and necessary charges were framed. In order to bring home the charges against the accused, the prosecution examined PW.1 to PW.11 and also marked Exs.P1 to P16 and Mos.1 to 10. On completion of the evidence on the side of the prosecution, the accused were questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused have come with the version of total denial and stated that they have been falsely implicated in this case. The court below, after hearing the arguments advanced on either side and looking into the materials available on record, found the accused/appellant guilty and awarded punishments as referred to above, which is challenged in this Criminal Appeal. 4. Mr.K.V.Sridharan, the learned counsel for the Appellants, while assailing the impugned judgement of conviction, strenuously contended that the Prosecution has miserably failed to prove its case by adducing clear and cogent evidence and put forward the following contentions:- (i) The author of the First Information Report, PW.1 having turned hostile and not supported the case of the Prosecution and further, PW.5 on whose behalf PW.1 said to have approached A1 for transfer and issuance of patta also having not supported the Prosecution, it is highly incredible that A1 would have demanded any bribe amount for getting the job done. (ii) No inference of demand and receipt of the illegal gratification can be drawn from the fact that the money was received from the accused. (iii) No reliance could be placed on the evidence of PW.2, who did not accompany PW.1 inside the office and admittedly, he was standing outside. Hence, PW.2 could not have witnessed the actual demand and acceptance of bribe by the accused. Further, PW.1 is already known to the accused. (iv) A1 has no authority to transfer patta and no paper relating to the issue of patta was received by A1 from the Taluk Office. Further, the application for issue of patta was not available with A1 and the same was prepared subsequently to suit the present case. Further, PW.1 is already known to the accused. (iv) A1 has no authority to transfer patta and no paper relating to the issue of patta was received by A1 from the Taluk Office. Further, the application for issue of patta was not available with A1 and the same was prepared subsequently to suit the present case. (v) Even assuming that the Prosecution has established its case of demand of illegal gratification said to have been made by A1, the accused have offered reasonable and probable explanation to the effect that the amount was kept on his table by PW.1 and the same is also spoken to by PW.1 in his evidence. (vi) The accused have rebutted the presumption contemplated under Section 20(1) of the Prevention of Corruption Act, 1988 by offering reasonable and probable explanation. 5. Per contra, Mr.A.N.Thambidurai, the learned Additional Public Prosecutor for the State contended that the Prosecution has proved its case by adducing clear and consistent evidence through the trap witnesses PW.2, PW.9, scientific expert, PW.10 Trap Laying Officer and PW.11 Investigating Officer. It is contended that though PW.1 and PW.5 did not support the Prosecution, but the demand and receipt of bribe has been established through other evidence and Ex.P1 the complaint given by PW.1. It is contended that the Prosecution case is also substantiated by conducting the phenolphthalein test in respect of fingers of both the hands of A1 and A2 and as well as the shirt pockets of the accused and the test also proved positive. Therefore, it is contended that the Prosecution has proved its case in all respects beyond reasonable doubt against the accused. 6. I have given my careful and anxious consideration to the rival contentions put forward by either side and thoroughly scanned through the entire evidence available on record and also perused the impugned judgement of conviction. 7. From the evidence, it can be seen that PW.1 has given a go by to his earlier statement made to the Police and stated that since he was persistently requesting A1 with regard to the transfer of patta in his sister's name from 9.3.2005 onwards on several dates, A1 got irritated and shouted at him to go away and need not approach him. The cross examination of this witness, more particularly his admission that even on the date of trap, he requested A1 to get the patta transferred in his sister's name in ten days and tendered the tainted money to A1 who refused to receive it and that thereafter, he placed the money on his table, is telling. His evidence indicated that A1 was terribly annoyed since he was persistently disturbed by PW.1 by his constant nagging. His assertion is that he went to the Vigilance Office and preferred the complaint on being instigated by his brother in law to whom he reported about the behaviour of the accused, who scolded him for repeatedly requesting him to grant patta. 8. The other witness PW.5 on whose behalf PW.1 had approached the accused for getting transfer of patta also failed to support the case of the Prosecution. Therefore, the very foundation of the Prosecution case is shaken to a great extent. The question as to the handing over of any bribe money and recovery of the same from the accused should be considered along with the other material circumstances, one of which is the question whether any demand at all was made by A1 for the bribe. When it is found that no such demand was made by the accused, the court will view the allegation of payment of the bribe and recovery of the same from the accused with suspicion especially when PW.2 the accompanying witness has not witnessed the passing of tainted money to the accused. 9. In Chakareshwara Nath Jain Vs. State of UP (AIR-1981-SC-2009) the Honourable Supreme Court held that when there was no evidence whatsoever regarding the passing of the money by the complainant to the accused except the interested testimony of the complainant and even the Police Officer did not claim to have witnessed the passing of money, there was real doubt in regard to the whole transaction and the accused had been rightly acquitted. 10. In the case on hand, PW.2 admittedly did not accompany PW.1 inside the office of the accused and he was standing outside the VAO's Office along with the Trap Laying Officer, since PW.1 felt that the accused may suspect the complainant, if he takes a third party along with him. It is very strange in this case that PW.10 Trap Laying Officer himself advised PW.2 to stay outside. It is very strange in this case that PW.10 Trap Laying Officer himself advised PW.2 to stay outside. PW.2's evidence clearly indicated that he only heard from PW.1 narrating the incident that happened inside the VAO's office to PW.10 and his evidence is only hearsay. It is pertinent to point that PW.1, the complainant did not support the trap theory put forward by the Prosecution. The other shadow witness Mathialagan who accompanied the trap party was not examined. 11. Law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also to overhear what happens and how it happens. In this case, the role of the shadow witness, namely, PW.2 was only made to stand outside and admittedly, he was not aware as to what happened inside the VAO's office. The corroboration essential in a case like this for what actually transpired at the time of the alleged occurrence and acceptance of bribe is very much lacking in this case. Even as per the version of PW.1, since A1 refused to receive the tainted money, he placed it on A1's table. 12. At this juncture, it is relevant to refer to the observations made by the Honourable Supreme Court in Gulam Mahmood Malik Vs. State of Gujarat (1980-Supp-SCC-684) that in appreciating the evidence, the background of the story and the testimony of the complainant must be considered. Further, the manner in which the trap conducted and recovery made is also crucial. The Honourable Supreme Court further observed that failure to examine independent witness naturally present on the occasion assumes significant. 13. In the case on hand, the version of complainant coupled with the evidence of the shadow witness clearly indicated that the tainted money was planted and the complainant voluntarily kept the money on the table of the accused without there being a demand for bribe. So the case of the Prosecution that the accused accepted the money as illegal gratification sounds inherently improbable. 14. It is proper, in this context, to state about the discrepancy with regard to the bribe money alleged to have been paid to the accused. According to PW.1, he gave Rs.700/- to A1, which he refused to receive and therefore, he kept the money on the table. 14. It is proper, in this context, to state about the discrepancy with regard to the bribe money alleged to have been paid to the accused. According to PW.1, he gave Rs.700/- to A1, which he refused to receive and therefore, he kept the money on the table. Whereas PW.2, shadow witness says that when PW.1 gave the money to A1, the latter told him that he had asked for Rs.800/-but only Rs.700/- has been paid. Immediately, thereafter, PW.1 told the accused that he is having two 50 rupee denominations and got back one 100 rupee denomination (tainted) from A1. Though the aforesaid version of PW.2 is hearsay, however there are two parallel conflicting versions in regard to the bribe money offered and accepted and in such a situation, this court is constrained to observe that the evidence with regard to the recovery of tainted money from the accused is not strong enough to sustain the conviction. 15. The learned counsel for the Appellants contended that the evidence of PW.1 and PW.2 cannot be accepted on any reasonable standard; that PW.1 was inimical towards A1 was a matter of record. He pointed out that the Prosecution has chosen to treat PW.1 as hostile, since there was inconsistency in his evidence and he had given a go by to his earlier statement made to the Police. He also submitted that on mere recovery of tainted notes from the accused, a conviction cannot be founded, more so, when the entire evidence brought on record looked so incredible. The learned counsel placed reliance on the decision of the Honourable Supreme Court reported in 2009-2-SCC-Crl-1 (C.M.Girish Babu Vs. CBI, Cochin) in support of his contention that mere recovery of tainted money from the accused by itself is not enough to sustain conviction, in the absence of evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be a bribe. 16. He also relied upon the decisions of the Honourable Supreme Court rendered in the cases of State of Kerala and another Vs. K.P.Rao (2011-2-SCC-Crl-1010) wherein the above said view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused was reiterated. 17. On these contentions, this court has heard the learned Additional Public Prosecutor. K.P.Rao (2011-2-SCC-Crl-1010) wherein the above said view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused was reiterated. 17. On these contentions, this court has heard the learned Additional Public Prosecutor. He submitted that it will be for this court to appreciate the credibility that could be attached to the version of PW.1 and PW.2 on the basis of infirmities pointed out by the learned counsel for the Appellants. However, he was at pain to submit that in so far as trap proper is concerned, the evidence of PW.10 was available, which had assurance lent to it by the evidence of PW.1 and PW.2 and it will not be impossible in law to convict the Appellants, if the court was prepared to unhesitatingly accept the evidence of the Trap Laying Officer. 18. This court has audited the merits of the rival contentions on the foundations of the evidence adduced. The superstructure of the Prosecution case is built on the core of the versions of PW.1 and PW.2. The laying of a trap and its success or otherwise, will become relevant ordinarily only in the event of the acceptability or otherwise of the Prosecution case, based on the evidence of the bribe giver and the other trap witnesses. It may be possible only in rare cases to base a conviction on the basis of recovery alone, on the foundation of the evidence of the Investigating Officer if it could be accepted without any reservation whatever. On a careful scrutiny of entire evidence, this court is unable to accept the argument of the learned Additional Public Prosecutor that recovery of currency coupled with the evidence of PW.10 with limited corroboration from PW.2 would suffice to sustain conviction. The trap witness had given different version and there is no corroboration of evidence led by the Trap Laying Officer. There were also material contradictions in important aspects as pointed out above. 19. In view of the aforementioned discussions, it will have to be held that the Prosecution has not been able to prove beyond the reasonable doubt the case projected by it and the benefit of such doubt, therefore, will have to be given to the accused. In that view of the matter, the appeal will have to be allowed. 20. In the result, this criminal appeal is allowed. In that view of the matter, the appeal will have to be allowed. 20. In the result, this criminal appeal is allowed. The impugned judgement of conviction and sentence is set aside. The Appellants are acquitted of the charges levelled against them. The bail bond if any executed by them shall stand cancelled and the fine amount if any paid by them shall be refunded to them.