Judgment : 1. This Criminal Appeal is filed against the judgement dated 14.8.2008 made in Sepecial Case No.6/2000 by the learned Chief Judicial Magistrate (Special Judge), Chengalput, thereby convicting and sentencing the Appellant for the offence under Section 7 of the Prevention of Corruption Act to undergo one year Rigorous Imprisonment and to pay a fine of Rs.5000/-, in default to undergo six months Simple Imprisonment and for the offence under Section 13(1)(d) read with 13(2) of the Prevention of Corruption Act to undergo one year Rigorous Imprisonment and to pay a fine of Rs.5000/-, in default to undergo six months Rigorous Imprisonment and ordering the sentences to run concurrently. 2. The case of the Prosecution is as follows:- a. The Appellant here in is A1. A1 is the Village Administrative Officer of Keelambi Village, Kancheepuram District. A2 is the Village Assitant. On 4.6.1999, PW.2, who is the defacto complainant, approached A1 for getting birth certificate of his second daughter Priyanga. A1 asked PW.2 to give an application. PW.2 informed that he is an illiterate person and A1 wrote the requisition letter Ex.P2 addressed to the Tahsildar. A1 asked PW.2 to give travelling expenses and PW.2 gave Rs.20. A1 asked PW.2 to meet her after a week. PW.2 met A1 after a week and enquired about the progress. A1 asked Rs.200/-, Rs.150/- for Flag Day Fund and Rs.50/- for travelling expenses. PW.2 informed her that he had no money. Ten days later, when PW.2 met A1 at Taluk Office, Kancheepuram and enquired about the birth certificate, A1 informed that the birth certificate was made ready and asked him to pay Rs.150/- and to get the same. Since PW.2 did not know whether the amount asked towards Flag Day collection or as bribe, he went to the Office of the Vigilance and Anti Corruption, Kancheepuram and informed the same to PW.11, the Inspector, Vigilance and anti Corruption, Kancheepuram. Then, PW.2 made the complaint Ex.P3 to PW.11, who registered a case in Cr.No.4/1999 under Section 7 of the Prevention of Corruption Acton 6.7.1999 at 01.15 p.m and prepared ep11, the First Information Report. b. Thereafter, PW.11 arranged for trap proceedings and summoned the official witness PW.3, who had accompanied PW.2 during the time of trap. Then, PW.2 made the complaint Ex.P3 to PW.11, who registered a case in Cr.No.4/1999 under Section 7 of the Prevention of Corruption Acton 6.7.1999 at 01.15 p.m and prepared ep11, the First Information Report. b. Thereafter, PW.11 arranged for trap proceedings and summoned the official witness PW.3, who had accompanied PW.2 during the time of trap. PW.11 demonstrated the trap proceedings and prepared the entrustment mahazar Ex.P4 in the presence of the witnesses at 3.00 p.m. On 6.7.1999, the trap party reached the office of A1 at 3.20 p.m. When PW.2 and PW.3 went inside the Office of the accused, A1 asked PW.2 whether he has brought the money and PW.2 gave the money to A1 and she kept Rs.100/- and gave Rs.50/-to A2. Then, A1 gave birth certificateEx.P5 to PW.2. Later, PW.2 and PW.3 came out of the office and gave the prearranged signal. PW.11 and the raiding party went inside the office of the accused. PW.2 identified A1 and A2. PW.11 seized Rs.100/- from A1 and Rs.50/-from A2 under seizure mahazar Ex.P6. PW.12, Inspector of Police took up the case for further investigation and examined the witnesses and recorded their statements and after completing investigation, he filed the final report under Section 7 read with Section 13(2) and 13(1)(d) of the Prevention of Corruption Act against the accused. 3. The case was taken on file in Special Case No.6/2000 by the learned Chief Judicial Magistrate (Special Judge), Chengalput and necessary charges were framed. In order to bring home the charges against the accused, the prosecution examined as many as 12 witnesses (PW.1 to PW.12) and also marked Exs.P1 to P10 and five material objects (Mos.1 to 7). On completion of the evidence on the side of the prosecution, the accused was questioned under Section 313 Cr.PC as to the incriminating circumstances found in the evidence of prosecution witnesses and the accused has come with the version of total denial and stated that she has 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. 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. V.Gopinath, the learned senior counsel for the Appellant contended that mere recovery of currency notes (Rs.150/-), in the facts of the present case, by itself cannot be proper or sufficient proof of the demand and acceptance of bribe. The learned senior counsel submits that as the evidence produced by the Prosecution has neither quality nor credibility, it is unsafe to record conviction upon such evidence. The learned senior counsel pointed out to the evidence of PW.2, wherein he has admitted even in his chief examination that a sum of Rs.150/-was demanded for flag day and Rs.50/- was for transport expenses. He further submitted that the complainant turned hostile and stated that the complaint was made, as he doubted whether the said demand was demanded as bribe or for flag day collection. Therefore, the learned senior counsel would submit that the accused has not demanded any amount as illegal gratification and when the same has come out in evidence of PW.2, the Trial Court erred in coming to the conclusion that there was a demand of bribe. The learned senior counsel submitted that the evidence of PW.3 does not indicate that the money was paid as illegal gratification and in the absence of such evidence, the evidence of PW.3 does not advance the Prosecution case. He would contend that where the demand of illegal gratification is not proved, the presumption under Section 20 of the Prevention of Corruption Act that money was accepted as illegal gratification would not be raised. 5. The next contention of the learned senior counsel for the Appellant is that the Prosecution has failed to establish the factum of the Appellant having received the illegal gratification. He would submit that where the accused offers an explanation for receipt of the alleged amount, he is not required to establish his defence by proving beyond reasonable doubt as the Prosecution, but can establish the same by preponderance of probability. 6. On the above said contentions, this court heard Mr. A.N.Thambidurai, the learned Additional Public Prosecutor appearing for the State. 6. On the above said contentions, this court heard Mr. A.N.Thambidurai, the learned Additional Public Prosecutor appearing for the State. He submitted that it will be for the court, to appreciate the credibility that could be attached to the version of PW.2 on the basis of infirmities pointed out by the learned senior counsel. However, he was at pain to submit that as far as the proper trap is concerned, the evidence of PW.3 is available, which had assurance lent to it and by the evidence of PW.3 having turned hostile, it will not be impossible to convict the Appellant, if the court accepts the evidence of other witnesses. Thus, he supported the conviction and order of sentence passed by the Trial Court. 7. This court heard the submissions of the learned counsel on either side and also perused the material records placed. 8. The star witness PW.2, who had given the complaint to the Police and whereupon the whole process of trap by the Vigilance Police had been schemed out, did not support the Prosecution. It is seen that even in the chief examination, PW.2 stated that the Appellant demanded Rs.150/- for flag day fund and another Rs.50/- for transport expenses. Hence, it is admitted by him that the amount demanded was for flag day fund. Even at the time of trap, the Appellant has merely asked PW.2 as to whether he has brought the money. His evidence nowhere indicated that there was any demand of bribe by the Appellant. To the extent that PW.2 did not support the Prosecution case that money demanded was the bribe money, he was treated as hostile and in the cross examination PW.2 has reiterated that the Appellant demanded money, only for flag day fund. Even PW.3's evidence is to the effect that the Appellant asked PW.2 whether he has brought the money. His evidence also did not indicate that the Appellant asked for the bribe money. 9. It is well settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence. The submission of the learned Additional Public Prosecutor for the State that presumption has rightly been raised against the Appellant, cannot be accepted as, inter alia, the demand itself had not been proved. The submission of the learned Additional Public Prosecutor for the State that presumption has rightly been raised against the Appellant, cannot be accepted as, inter alia, the demand itself had not been proved. In the absence of a proof of demand, the question of raising the presumption would not arise. 10. It is settled principle of law that mere recovery of the tainted money is not sufficient to record a conviction, unless there is evidence that bribe had been demanded or money was paid as a bribe. In the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery would not alone be a ground to convict the Appellant. 11. In State of Maharashtra Vs. Dayaneshwar Laxman Rao Wankhede (2009-Crl.J-4425-SC) the Honourable Supreme Court has held as below:- “Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz. Demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in S.20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-a-vis the standard of burden of proof on the Prosecution would differ. Before, however, the accused is called upon to explain as to how the amount in question was found in possession, the foundational facts must be established by the Prosecution. Even while invoking the provisions of S.20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not in the touchstone of proof beyond all reasonable doubt. ” 12. The same view is stressed by the Honourable Supreme Court in decision, the Honourable Supreme Court observed that before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the Prosecution. 13. In yet another decision reported in 2010-Crl.LJ-2419-SC (Benarasi Dass Vs. ” 12. The same view is stressed by the Honourable Supreme Court in decision, the Honourable Supreme Court observed that before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the Prosecution. 13. In yet another decision reported in 2010-Crl.LJ-2419-SC (Benarasi Dass Vs. State of Haryana), where the allegations were that the accused demanded and accepted bribe for recording name of the complainant's mother in revenue records and the trap was laid, however, complainant turned hostile and stated that the complaint was made as there was apprehension that the accused would demand money, the Honourable Supreme Court on the above facts held that the offence was not made out. Even in the instant case, the complainant has stated that the Appellant demanded money for flag day fund and he had a doubt whether the Appellant was demanding it as bribe and hence, he lodged the complaint with the Vigilance Police. 14. In the instant case, the defence of the accused is that she received the money for flag day fund and for transport expenses. It is well settled that the accused is not required to prove his defence beyond a reasonable doubt, but only preponderance of probability. In this case, on Prosecution's own showing, that onus can be said to have been duly discharged by the Appellant, more particularly, when PW.2 himself admitted in his evidence that the Appellant demanded money for flag day fund. The explanation given by the Appellant both during cross examination of Prosecution witnesses and in his own statement, recorded under Section 313 of Cr.PC is quite plausible. 15. In Punjabrao Vs. State of Maharashtra (AIR-2002-SC-486), it has been held that even when the accused did not offer his explanation that it was in relation to a collection of loan when the trap laying officer seized the amount from the accused, but that by itself would not be sufficient to throw away the explanation offered by the accused in his statement under Section 313 of Cr.PC when such explanation could be held to be reasonable under the facts and circumstances of the case. 16. 16. In applying the said principle to this case, I am of the considered opinion that the Prosecution has failed in establishing the guilt of the Appellant beyond reasonable doubt that there was a demand and acceptance of illegal gratification. Whereas, the Appellant/ accused has given plausible and acceptance explanation and discharged the burden, thus rebutting the presumption under Section 20 of the Act and therefore, the Appellant is liable to be acquitted of the charges levelled against her. 17. In the result, this criminal appeal is allowed. The impugned judgement of conviction and sentence are set aside. The Appellant is acquitted of the charges levelled against her. The bail bond if any executed by the Appellant shall stand cancelled and the fine amount if any paid by the Appellant shall be refunded to her.