JUDGMENT Sanjay Karol, J. Assailing the judgment dated 24.06.2013, passed by learned Special Judge, Sirmaur, District at Nahan, H.P. in Sessions Trial No. 61/CC7 of 2011, titled as State of Himachal Pradesh Versus Suresh Kumar, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973. 2. It is the case of prosecution that accused Suresh Kumar, on the asking of P.L. Sharma demanded illegal gratification from Gulab Singh (PW.1). This was for releasing a sum of Rs. 1,00,000/-, which amount being due and admissible, was payable by the Department, for execution of certain public works by Gulab Singh. Same day, Gulab Singh reported the matter to the police officials at Paonta Sahib. Balbir Singh (PW.12), Dy.S.P. concerned, constituted a team and recorded statement (Ex.PW.1/A), on the basis of which FIR No.9/2010 dated 12.10.2010 (Ex.PW.8/A), was registered at Police Station, SV & ACB, Nahan, under the provisions of Section 7 and 13(i)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988. Balbir Singh associated independent shadow witness Attar Singh (PW.2) and Guman Singh (PW.5). Demonstration was given to Gulab Singh, who handed over 30 notes having denomination of Rs. 1000/- each, which were treated with phenolphthalein powder. Demonstration was given by the police party in the presence of Attar Singh (PW.2) and Guman Singh (PW.5). Same day, Gulab Singh handed over currency notes to accused Suresh Kumar. They were kept in a drawer of his table. In the presence of all independent witnesses as also complainant (PW.1), Inspector Madan Lal (PW.3) and Inspector Mal Dutt Sharma (PW.11), Balbir Singh (PW.12) effected recovery of currency notes which were counted. Hands of accused were washed; sample was collected and when mixed with sodium carbonate, it turned pink. Police seized incriminating material i.e. water sample and the currency notes. With the completion of investigation, Challan was presented in the Court for trial. 3. Accused was charged for having committed offences punishable under the provisions of Sections 7 and 13(i)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988, to which he did not plead guilty and claimed trial. 4. In order to establish its case, in all, prosecution examined as many as twelve witnesses. 3. Accused was charged for having committed offences punishable under the provisions of Sections 7 and 13(i)(d) punishable under Section 13(2) of the Prevention of Corruption Act, 1988, to which he did not plead guilty and claimed trial. 4. In order to establish its case, in all, prosecution examined as many as twelve witnesses. Statement of the accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took up the following defence:- “My office was at Shillai but I had come to Paonta Sahib in the office of SDSCO, for official work. The contract given to Gulab Singh was for total amount of Rs. 12 lacs. Gulab Singh was paid the last payment of about 99,000/- in august 2010 and thereafter there was no payment pending with the department as at that time no work was going on. The remaining work was carried out by Gulab Singh after the registration of this case and he was paid Rs. 49,000/- and some rupees in April 2011. This work was carried out after the registration of this case. On 12-10-2010 Gulab Singh was not called by me. There was no amount due to Gulab Singh for payment after he had received the payment for Rs. 99180/- on 31-9-2010. On 12-10-2010, I was sitting in the office and Gulab Singh came in the office and asked me that he wanted to meet Shri P.L. Sharma. I went to the room of P.L. Sharma, and he took me 3-4 minutes in his office when I came out in my room Gulab Singh was not there. After some time vigilance staff entered my room and asked me whether I have received Rs. 30,000/- as bribe from Gulab Singh which I told the vigilance team that he had not received any bribe. To which the DSP asked me to open the drawer. When I at the asking of DSP opened the drawer there was some money. DSP asked me to pick up the money. I picked up the money which were currency notes of Rs. 1000/- each. I was asked to count but I could not count as I got perplexed and the money was got counted from Balwinder Singh. Thereafter my hand wash was taken my signatures were obtained.” 5. To establish and probablize the defence, accused examined one witness in Court. 6. I picked up the money which were currency notes of Rs. 1000/- each. I was asked to count but I could not count as I got perplexed and the money was got counted from Balwinder Singh. Thereafter my hand wash was taken my signatures were obtained.” 5. To establish and probablize the defence, accused examined one witness in Court. 6. Appreciating the testimony of prosecution witnesses, trial Court acquitted the accused of the charged offences. Hence, the present appeal. 7. Having heard learned counsel for the parties, I am of the considered view that no ground for interference is made out in the present appeal. 8. At the threshold, I must place on record, with appreciation, efforts put in by Ms. Kusum Chaudhary, learned counsel, who despite being a new entrant in the profession, rendered effective assistance both on facts and law, in arriving at a just and proper decision of the case. She extensively and minutely took me through the evidence and relevant law on the issue. 9. It would be fruitful to point out that P.L. Sharma, on whose asking and behalf, accused demanded illegal gratification has neither been arrayed as an accused nor examined in Court by the prosecution. Why so? Has not been explained. After all as per case set up by the prosecution, accused had demanded money on his asking. His examination was absolutely necessary to establish such fact as the substratum of the prosecution case gets completely knocked down. 10. According to the prosecution, alleged demand was made as consideration for clearing the bills and release of amount of Rs. 1,00,000/- for the works executed by Gulab Singh. This version of prosecution stands demonstrably falsified through witness Attar Singh Negi (DW.1), posted as a Draftsman, Office of Sub Divisional Soil Conservation Officer Paonta Sahib, according to whom payment towards work executed by Gulab Singh, stood released on 20.08.2010 itself. No doubt, this witness states that last and final payment was made on 21.04.2011 but it is the specific case of prosecution that demand of Rs. 30,000/- was made for release of payment of Rs. 1,00,000/- which amount evidently stood released on 20.08.2010. 11. On the question of demand and recovery being an essential ingredient which the prosecution, in law, is obliged to prove, Ms. 30,000/- was made for release of payment of Rs. 1,00,000/- which amount evidently stood released on 20.08.2010. 11. On the question of demand and recovery being an essential ingredient which the prosecution, in law, is obliged to prove, Ms. Kusum Chaudhary, learned counsel has invited my attention to paras 7 and 9 of the decision rendered by the apex Court in B. Jayaraj Versus State of A.P., 2014 AIR SCW 2080, which read as under:- “7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P., (2010) 15 SCC 1 and C.M. Girish Babu Vs. C.B.I., (2009) 3 SCC 779 .” “9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent.” 12. Now in the instant case one finds that prosecution has failed to establish demand of any illegal gratification. This conclusion is safely borne out through the testimony of Gulab Singh (PW.1), who in fact has not supported the prosecution case. The witness was extensively cross-examined, but however nothing fruitful could be elicited from his testimony. He admits it to be correct that he met accused Suresh Kumar, who was sitting in the outer room of the office of P.L. Sharma. The witness was extensively cross-examined, but however nothing fruitful could be elicited from his testimony. He admits it to be correct that he met accused Suresh Kumar, who was sitting in the outer room of the office of P.L. Sharma. He expressed his desire to meet P.L. Sharma and was guided by accused Suresh Kumar to the office. He categorically does not disclose factum of any demand having been made by the accused either on his behalf or on behalf of P.L. Sharma. Crucially witness admits that at the time when accused went inside the room of P.L. Sharma, he left money in the drawer of the desk of the accused, indicating that money was not even handed over to the accused. He was not even aware of such fact. It is not the case of this witness that accused had asked him to leave the money in his drawer. Hence this witness does not prove the essential ingredient of demand of illegal gratification by the accused or such payment to him. 13. Shadow witness (PW.2) who was declared hostile also does not support the prosecution. He was extensively cross-examined by the Public Prosecutor but nothing fruitful could be elicited from his testimony. This witness states that Gulab Singh entered the office of the accused much after the police, i.e. about one hour had already entered the office. Thus he totally belies the prosecution case and more particularly testimony of DSP Balbir Singh (PW.12), according to whom, police party entered the office and recovered currency notes after getting signal from the shadow witness. 14. Guman Singh (PW.5) is an independent witness. Even he has not supported the prosecution. He was declared hostile and extensively cross-examined by the prosecution, but nothing fruitful could be elicited from his testimony. Crucially this witness states that only 27 currency notes of Rs. 1000/- denomination each were recovered. Now none has come forward to explain as to what happened to the remaining three notes of Rs. 1000/- denomination. It is not the case of prosecution that accused had either touched or removed certain notes prior to police party entering the room and recovering them from the drawer. 15. The contradiction in the prosecution case does not end here. Even police officials, namely, Inspector Madan Lal (PW.3), Inspector Mal Dutt Sharma (PW.11) and DSP Balbir Singh (PW.12), have contradicted themselves. Contradiction is material and relevant. 15. The contradiction in the prosecution case does not end here. Even police officials, namely, Inspector Madan Lal (PW.3), Inspector Mal Dutt Sharma (PW.11) and DSP Balbir Singh (PW.12), have contradicted themselves. Contradiction is material and relevant. It knocks down the substratum of prosecution case. According to PW.3, demonstration was given at Behral road, which was at a distance of 4 kms from the Rest House. Whereas, according to other police officials, demonstration was given at a place which was at a distance of 1 ½ kms and 50 meters. There is no unanimity with regard to the distance. That apart, no plausible explanation is forthcoming as to why demonstration was not given in the Rest House but on a public highway. 16. According to Inspector Madan Lal (PW.3), DSP Balbir Singh (PW.12) associated independent witness which version materially stands contradicted by Inspector Mal Dutt Sharma (PW.11), according to whom he associated the witnesses. Whereas according to PW.12, he directed PW.11 to call for the witnesses. 17. Record reveals that all of the witnesses and more particularly independent witness Balwinder Singh, was not examined in Court. Why so? has not been explained. Non examination of independent witness and the witness, who partly conducted the investigation acquires relevance and significance in view of independent witnesses turning hostile and glaring contradictions emerging in the testimony of police officials. 18. The factum of alleged demand or payment cannot be said to have been established by the prosecution by leading clear, cogent, convincing and reliable piece of evidence. The burden initially rests upon the prosecution, which cannot be said to have been discharged. It also cannot be said that currency notes were recovered from the possession of the accused. In any event, it is a settled principle of law that mere recovery of tainted currency notes, without any corresponding demand of illegal gratification would not lead to presumption of guilt of the accused. 19. The improbabilities, contradictions, improvements and discrepancies in the prosecution case render the testimony of the witnesses to be absolutely shaky, unreliable and untrustworthy. 20. The Court below, in my considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice. 21. 20. The Court below, in my considered view, has correctly and completely appreciated the evidence so placed on record by the prosecution. It cannot be said that judgment of trial Court is perverse, illegal, erroneous or based on incorrect and incomplete appreciation of material on record resulting into miscarriage of justice. 21. It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, I am of the considered view that prosecution has failed to establish the essential ingredient so as to constitute the charged offences. 22. The accused person has had the advantage of having been acquitted by the lower appellate Court. Keeping in view the ratio of law laid down by the Apex Court in Mohammed Ankoos and others versus Public Prosecutor, High Court of Andhra Pradesh, Hyderabad (2010) 1 SCC 94 , since it cannot be said that trial Court has not correctly appreciated the evidence on record or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case. 23. For all the aforesaid reasons, present appeal, being devoid of merit, is dismissed, so also the pending application(s), if any. Bail bonds furnished by the accused are discharged. Records of the Court below be immediately sent back.