JUDGMENT : Sanjay Karol, J. Assailing the judgment dated 26.6.2012/28.6.2012, passed by the learned Special Judge, Una, H.P., in Corruption Case No. 4 of 2010, titled as State of Himachal Pradesh vs. Prithvi Raj, whereby the appellant-accused stands convicted for having committed offences punishable under the provisions of Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act) and sentenced to undergo rigorous imprisonment for a period of one year and pay fine of Rs.2000/- for offence punishable under Section 7 of the Act and rigorous imprisonment for a period of one year and fine of Rs. 3000/- for offence punishable under Section 13(2) of the Act, the accused has filed the present appeal under the provisions of Section 27 of the Act read with Section 374 of the Code of Criminal Procedure, 1973. 2. Pursuant to the registration of F.I.R. No. 3 of 2009, dated 30.7.2009 (Ext. PW-10/A), registered at Police Station, SV&ACB, Una, accused was charged to face trial for having committed offences punishable under the provisions of Sections 7 and 13(2) of the Act. 3. As per the case of prosecution, in the course of discharge of his official duties as Gram Panchayat Secretary, of Gram Panchayat Khanpur, Distt. Una, as a public servant, on 30.7.2009, accused demanded and received illegal gratification of Rs.500/- from the complainant Shiv Rattan (PW-1). The alleged demand was made for release of last instalment, due and payable, under the Indira Aawas Yojna for construction of the complainant’s house. 4. In order to establish its case, prosecution examined as many as ten witnesses and the statement of accused under Section 313 of the Code of Criminal Procedure was also recorded, in which he took plea of innocence and false implication. Noticeably accused admits to have received Rs.500/- from the complainant, but claims it to be donation for construction of a cremation ground. The accused specifically denied having raised any demand or received the said amount, for clearing the papers of the complainant. In defence, he examined four witnesses. 5. Appreciating the material placed on record by the prosecution, trial Court convicted the accused of all the charged offences and sentenced as aforesaid. Hence the present appeal. 6. The accused specifically denied having raised any demand or received the said amount, for clearing the papers of the complainant. In defence, he examined four witnesses. 5. Appreciating the material placed on record by the prosecution, trial Court convicted the accused of all the charged offences and sentenced as aforesaid. Hence the present appeal. 6. Having heard learned counsel for the parties as also perused the record, Court is of the considered view that findings as also the impugned judgment are not based on correct and complete appreciation of evidence and material placed on record, causing serious prejudice to the accused, resulting into miscarriage of justice. 7. In Shivaji Sahabrao Bobade and another Versus State of Maharashtra, (1973) 2 SCC 793 , the apex Court, has held that: “…….Lord Russel delivering the judgment of the Board pointed out that there was "no indication in the Code of any limitation or restriction on the High Court in the exercise of its powers as an appellate Tribunal", that no distinction was drawn "between an appeal from an order of acquittal and an appeal from a conviction", and that "no limitation should be placed upon that power unless it be found expressly stated in the Code". …. …. (Emphasis supplied) 8. The apex Court in Lal Mandi v. State of W.B., (1995) 3 SCC 603 , has held that in an appeal against conviction, the appellate Court is duty bound to appreciate the evidence on record and if two views are possible on the appraisal of evidence, benefit of reasonable doubt has to be given to the accused. 9. In the instant case complainant Shiv Rattan (PW- 1), has himself deposed that it was only Pradhan Ishwar Dayal who raised demand of illegal gratification from him. It was for clearing papers for release of last instalment of the amount due and payable to him. Demand was for a sum of Rs.1000/-, out of which Rs.500/- was to be paid to accused Prithvi Chand and the remaining amount was to be retained by Ishwar Dayal. He is categorical that both the Pradhan and the Secretary (appellant herein) delayed release of the installment by one week. He wants the court to believe that by taking loan from the Agricultural Co-operative Society he arranged the money. He contacted the concerned officials by making complaint (Ext.PW-1/A) on the basis of which a raiding party was constituted. He is categorical that both the Pradhan and the Secretary (appellant herein) delayed release of the installment by one week. He wants the court to believe that by taking loan from the Agricultural Co-operative Society he arranged the money. He contacted the concerned officials by making complaint (Ext.PW-1/A) on the basis of which a raiding party was constituted. Since Pradhan was not available he went to accused Prithvi Chand and offered the money at which he denied having made any demand of Rs.1000/-. He is categorical in stating that “accused Prithi Chand told me that he had not demanded Rs. 1000/-“. He further states that Rs.500/- was retained by the accused and Rs.500/- returned back. 10. It be only observed that Pradhan Ishwar Dayal who had in fact raised demand of alleged illegal gratification has not been arrayed as a co-accused. Also he is not a witness. Complainant is categorical of the accused never demanding any money. Rs.500/- so handed over by the complainant to the accused cannot be termed as an illegal gratification for clearing the papers for release of the third installment towards construction of his house, for evidently, as is so admitted by the complainant that the “ Block Development Officials had told” him that he “would be paid last installment only on completion of my house”. Undisputedly, as on the date of alleged demand or payment of money, construction of his house was not complete and as such there was no occasion for release of money towards the third/last installment. It be only observed that the first two installments stood released in favour of the complainant. Out of the total sanctioned amount of Rs.38500/-, only Rs.8500/- was left to be paid and none had demanded any money for release of the first two installments. Also version of the complainant that he had borrowed Rs.1000/- from the Agricultural Co-operative Society stands contradicted, in fact, belied, by Sanjeev Kumar (DW- 1) according to whom no person by the name of Shiv Rattan s/o Kishori Lal (complainant) had applied for loan during the period of either demand or payment. 11. Also in the complaint (Ext. PW-1/A), it is nowhere mentioned that accused had raised any demand. 12. There is yet another mitigating circumstance in favour of the accused. 11. Also in the complaint (Ext. PW-1/A), it is nowhere mentioned that accused had raised any demand. 12. There is yet another mitigating circumstance in favour of the accused. Dharam Pal (PW-3), a shadow witness, does not state anything with regard to the conversation which took place between the accused and the complainant. He did not overhear anything. No demand was made in his presence. Also no money was paid in his presence. 13. The otherwise uninspiring statement of the complainant required corroboration which was not so done in the instant case. There is no presumption that a public servant from whose custody marked notes are recovered, accepted the same as an illegal gratification. The statutory presumption would arise only with the prosecution discharging the initial burden of proving its case, beyond reasonable doubt, which in the instant case has not been so done. 14. Further, Pravesh Joshi (PW-6) admits that no resolution of the Panchayat, for release of the amount in question, was received. Significantly this was to be so done by the Panchayat and not the Secretary, who in any event had no say in the matter. 15. It be also observed that the defence taken by the accused stands largely probablized. Through the testimony of Malkiat Singh (DW-4), resolution dated 1.3.2009 stands proved, establishing the fact that prior to commission of the alleged crime, resolution of the Panchayat stood passed seeking contribution from local residents for development of the cremation ground. A sum of rupees two lacs was to be collected as donations. 16. Even if testimony of Dharam Pal (PW-3) is to be ignored for the reason that he was declared hostile, still there are material contradictions in the testimonies of Shiv Rattan (PW-1), Anjali Kumar (PW-2), Constable Anant Kumar (PW-5) and Dy. S.P. Sukhdev Singh (PW-10) with regard to the manner and the place where the accused was apprehended. 17. According to Shiv Rattan and Sukhdev Singh, seeing the trap party, accused who fled away from the spot was apprehended after some time. Whereas, according to Anjali Kumar, immediately after money was handed over, accused was apprehended inside the Panchayat Ghar. Yet a third version has emerged through the testimony of Constable Anant Kumar, who states that with the signaling of Dharam Pal, raiding party entered the Panchayat Ghar and nabbed the accused. Whereas, according to Anjali Kumar, immediately after money was handed over, accused was apprehended inside the Panchayat Ghar. Yet a third version has emerged through the testimony of Constable Anant Kumar, who states that with the signaling of Dharam Pal, raiding party entered the Panchayat Ghar and nabbed the accused. As to whether any signal was given or not cannot be said with certainty for it has not come in the version of either Shiv Rattan or Dy. S.P Sukhdev Singh. 18. It be also observed that Rs.500/- allegedly returned to the complainant, which in fact was the case property, was never seized by the police. 19. It is a settled principle of law that mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused. [ Suraj Mal vs. State (Delhi Administration), (1979) 4 SCC 725 ] 20. Further the apex Court in M.K. Harshan vs. State of Kerala, (1996) 11 SCC 720 has held as under:- “8. … In all this type of cases of bribery, two aspects are important. Firstly, there must be a demand and secondly there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence.” … 21. Also the apex Court in Banarsi Dass vs. State of Haryana, (2010) 4 SCC 450 , as held as under:- “25. Reliance on behalf of the appellant was placed upon the judgment of this Court in the case of C.M. Girish Babu vs. CBI, (2009) 3 SCC 779 where in the facts of the case the Court took the view that mere recovery of money from the accused by itself is not enough in absence of substantive evidence for demand and acceptance. The Court held that there was no voluntary acceptance of the money knowing it to be a bribe and giving advantage to the accused of the evidence on record, the Court in para 18 and 20 of the judgment held as under : "18. In Suraj Mal v. State (Delhi Admn.) [ 1979 (4) SCC 725 ] this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. In Suraj Mal v. State (Delhi Admn.) [ 1979 (4) SCC 725 ] this Court took the view that (at SCC p. 727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. … … … 20. A three-Judge Bench in M. Narsinga Rao v. State of A.P.[ 2001 (1) SCC 691 : 2001 SCC (Cri) 258] while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: (SCC p. 700, para 24) ‘24. ... we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra [ 2000 (8) SCC 571 ]).The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel: (Madhukar case, SCC p. 577, para 12) “12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted ‘as motive or reward’ for doing or forbearing to do any official act. So the word ‘gratification’ need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like gratification or any valuable thing’. So the word ‘gratification’ need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like gratification or any valuable thing’. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word ‘gratification’ must be treated in the context to mean any payment for giving satisfaction to the public servant who received it." ‘ “ In fact, the above principle is no way derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal v. State (Delhi Admn.) [ 1979 (4) SCC 725 ], where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgment of this Court in Sita Ram v. State of Rajasthan [ 1975 (2) SCC 227 ], where similar view was taken. 26. C.M. Girish Babu vs. CBI, (2009) 3 SCC 779 case was registered under the Prevention of Corruption Act, 1988, Section 7 of which is in pari materia with Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused despite presumption and, in fact, acquitted the accused in that case.” Similar view was taken by the apex Court in T. Subramanian vs. State of T.N., (2006) 1 SCC 401 . 22. Since testimony of Dharam Pal (PW-3) cannot be relied upon to corroborate the otherwise shaky version of Shiv Rattan (PW-1), Court is of the considered view that it was incumbent upon the prosecution to have led some evidence to give strength to its case. 23. 22. Since testimony of Dharam Pal (PW-3) cannot be relied upon to corroborate the otherwise shaky version of Shiv Rattan (PW-1), Court is of the considered view that it was incumbent upon the prosecution to have led some evidence to give strength to its case. 23. The apex Court in Meena (Smt) w/o Balwant Hemke vs. State of Maharashtra, (2000) 5 SCC 21 has held that “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”. The Court further held that “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 wanting in this case”. 24. Also the apex Court in Major E.G.Barsay vs. State of Bombay, AIR 1961 SC 1762 has held as under:- “41. … … The corroboration must be by independent testimony confirming in some material particulars not only that the crime was committed but also that the appellant committed it. It is not necessary to have corroboration of all the circumstances of the case or every detail of the crime. It would be sufficient if there was corroboration as to the material circumstances of the crime and of the identity of the accused in relation to the crime. These principles have been settled in R. vs. Baskerville, (1916) 2 KB 658 which has rightly been considered as the locus classicus of the law of approver’s evidence and has been followed by courts in India.” 25. Also the apex Court in Mukut Bihari & others vs. State of Rajasthan, (2012) 11 SCC 642 has held as under:- “11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the Act 1988. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act 1988, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the Act, 1988. While invoking the provisions of Section 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 on the touchstone of proof beyond all reasonable doubt. However, 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. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person. [Vide: Ram Prakash Arora v. The State of Punjab (1972) 3 SCC 652 : AIR 1973 SC 498 ; Panalal Damodar Rathi v. State of Maharashtra (1979) 4 SCC 526 : AIR 1979 SC 1191 ; Suraj Mal v. The State (Delhi Admn.) (1979) 4 SCC 425: AIR 1979 SC 1408 ; Smt. Meena Balwant Hemke v. State of Maharashtra (2000) 5 SCC 21 : AIR 2000 SC 3377 ; T. Subramanian v. The State of T.N., (2006) 1 SCC 401 : AIR 2006 SC 836 ; A. Subair v. State of Kerela (2009) 6 SCC 587 ; State of Maharashtra v. Dnyaneshwar Laxman Rao Wankhede (2009) 15 SCC 200 ; C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : AIR 2009 SC 2022 ; and State of Kerala v. C.P. Rao (2011) 6 SCC 450 ]” 26. It is also a settled principle of law that shadow witnesses must overhear the conversation of demand of bribe and unequivocally depose such fact in court. In this regard reliance can be sought on the following observations made by the apex Court in Bal Krishan Sayal vs. State of Punjab, (1987) 2 SCC 647 as under:- “3. Two outsider witnesses had been examined in the case being Khazan Singh and Ram Chander in support of the case. Khazan Singh, as noticed by the High Court, did not speak as to what transpired in the conversation between the bribe giver and the appellant. The other witness too was not very clear as to what talk preceded the passing of the two currency notes. The High Court took the view that even if the prosecution had not indicated what exactly the conversation was, once the passing of the two currency notes was accepted it was for the appellant to explain the circumstances under which the same had been received. Another contention which had been raised before the High Court was that the total penal rent due from Gurcharan Ram was Rs. 102/- and to obtain waiver of this it was unlikely that Gurcharan would have agreed to pay a sum of Rs. 100/- as bribe. We, wanted to find out exactly how much of penal rent was due and, therefore, sent for the record. From the record it is apparent that the demand was of Rs. 102/- which Gurcharan Ram wanted to be waived. There is no material to show whether there was likelihood of any additional demand to be raised against him. Taking the unsatisfactory character of the prosecution evidence in regard to the conversation preceding the passing of the currency notes and the feature that for waiver of Rs. 102/-, the bribe of Rs. 100/- was offered, we are inclined to take the view that the prosecution has failed to establish its case beyond reasonable doubt and the appellant is entitled to this benefit of this situation. The appeal is allowed and the convictions and the sentences are set aside.” 27. It is not that every civil servant is corrupt. There cannot be any presumption in that regard. Unless proved otherwise presumption is to the contrary. The statutory onus would shift upon the accused only if initial burden is discharged by the prosecution. The appeal is allowed and the convictions and the sentences are set aside.” 27. It is not that every civil servant is corrupt. There cannot be any presumption in that regard. Unless proved otherwise presumption is to the contrary. The statutory onus would shift upon the accused only if initial burden is discharged by the prosecution. [ Amba Lal vs. Union of India & others, AIR 1961 SC 264 (Constitutional Bench); Ganga Kumar Srivastava vs. State of Bihar, (2005) 6 SCC 211 ; C.M. Girish Babu (supra); and Narender Champaklal Trivedi vs. State of Gujarat, (2012) 7 SCC 80 ]. 28. Findings returned by the trial Court, convicting the accused, cannot be said to be based on correct and complete appreciation of testimonies of prosecution witnesses. Such findings cannot be said to be on the basis of any clear, cogent, convincing, legal and material piece of evidence, leading to an irresistible conclusion of guilt of the accused. Incorrect and incomplete appreciation thereof, has resulted into grave miscarriage of justice, inasmuch as accused stands wrongly convicted for the charged offence. 29. Hence, for all the aforesaid reasons, appeal is allowed and the judgment of conviction and sentence, dated 26.6.2012/28.6.2012, passed by learned Special Judge, Una, H.P., in Corruption Case No. 4 of 2010, titled as State of Himachal Pradesh vs. Prithvi Raj, is set aside and the accused is acquitted of the charged offences. Fine amount, if deposited, be refunded to the accused. Bail bonds furnished by the accused are discharged. Appeal stands disposed of, so also pending application(s), if any.