JUDGMENT : V.M. DESHPANDE, J. The present appeal is directed against judgment and order of acquittal passed by learned Special Judge at Buldana dated 28.2.2003 in Special Anti Corruption Case No. 1 of 1997 by which learned Special Judge acquitted the respondent for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. 2. I have heard learned Additional Public Prosecutor Ms. T.H. Udeshi for the appellant/State and learned counsel Shri A.A. Gupta for the respondent, in extenso. They took me, in detail, through the record and proceedings so also notes of evidence. 3. The respondent, at the relevant time, was working as a Police Head Constable in Buldana District. He was attached to Buldhana Police Station. 4. As per the charge, the respondent on 8.12.1995 and 12.12.1995 demanded and obtained gratification of Rs. 400/- from PW3 complainant Sudhakar Laxman Hivale for not taking any action against him on the basis of complaint lodged by one Rukhminibai Baliram More. 5. The prosecution examined in all 7 witnesses. 6. PW1 Atulchandra Madhukarrao Kulkarni is the Sanctioning Authority. Sanction order issued by him is at Exhibit 17. 7. PW2 is Atmaram Pundlik Aarakh. According to the prosecution, through him the respondent gave a message to complainant Sudhakar Hivale, his mother, and his sister and asked them to come to Buldhana. 8. PW3 Sudhakar Hivale is complainant who has lodged complaint Exhibit 26 with the Anti Corruption Bureau. 9. PW4 Ramdas Pundlik Nimkarde, who was working as Surveyor, was called by the officials of the Anti Corruption Bureau at Buldana to act as pancha. He has proved Exhibit 28 pre-trap panchanama and Exhibit 29 post-trap panchanama. 10. PW5 Indrabai Laxman Hivale is mother of complainant Sudhakar Hivale. She has deposed that there was a quarrel between her daughter Anita and Rukhminibai More and, thereafter, Rukhminibai started alleging that Indrabai's daughter Anita has stolen away her earring tops. Thereafter, Rukhminibai lodged report against complainant Sudhakar Hivale, Indrabai Hivale, and Anita. 11. PW6 Jamnaprasad Sattyanarayan Pande is the Investigating Officer. 12. PW7 Anita W/o Ramesh Zine is sister of PW3 complainant Sudhakar Hivale. She is also examined on the point that the respondent has called Sudhakar at Buldana. 13. Thereafter, Rukhminibai lodged report against complainant Sudhakar Hivale, Indrabai Hivale, and Anita. 11. PW6 Jamnaprasad Sattyanarayan Pande is the Investigating Officer. 12. PW7 Anita W/o Ramesh Zine is sister of PW3 complainant Sudhakar Hivale. She is also examined on the point that the respondent has called Sudhakar at Buldana. 13. The respondent also examined one witness Hasanrao Keshavrao Ubarhande as DW1 to point out that the amount, which was accepted by the respondent, was not towards illegal gratification. However, it was an amount of settlement between Rukhminibai and Sudhakar. 14. The respondent is not disputing acceptance of amount on 12.12.1995 through PW3 complainant Sudhakar Hivale which was smeared with Phenolphthalein Powder. There is no omission, contradiction, or variance on material point of time in between evidences of PW3 complainant Sudhakar Hivale and PW4 Ramdas Nimkarde. 15. Merely because smeared notes are found in possession with the accused, that by itself is not sufficient to hold the accused guilty for the offences under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 unless the prosecution successfully proves that there was a demand for illegal gratification by a public servant. Useful reference can be made to an authoritative pronouncement of the Honourable Apex Court in the case of B. Jayaraj v. State of Andhra Pradesh, reported at (2014) 13 SCC 55 . Paragraph No. 7 of the said judgment reads as under : “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 CM. Sharma v. State of A.P. and CM. Girish Babu v. C.B.I.” 16. The Honourable Apex Court in the case cited supra noticed that since the prosecution was not able to prove the demand, the only other material available is the recovery of the tainted currency notes from the possession of the accused therein. In fact, such possession is admitted by the accused himself. Girish Babu v. C.B.I.” 16. The Honourable Apex Court in the case cited supra noticed that since the prosecution was not able to prove the demand, the only other material available is the recovery of the tainted currency notes from the possession of the accused therein. In fact, such possession is admitted by the accused himself. The Honourable Apex Court then observed that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Section 13(1)(d)(i)(ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. The Honourable Apex Court in the case cited supra also ruled that insofar 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. 17. It is to be noted that defence of the respondent, that he accepted amount from PW3 complainant Sudhakar Hivale by way of settlement amount in between Rukhminibai More and complainant Sudhakar to the effect that the said amount of Rs. 400/- was towards the money of earring tops which were taken away by PW7 Anita Zine, did not crop up at eleventh hour during the course of Trial. 18. The respondent's statement by the investigating officer was recorded on 16.12.1995. In said statement dated 16.12.1995, the respondent pointed out that he took money from Sudhakar Hivale since there was a settlement in between Sudhakar and Rukhminibai More to give amount to Rukhminibai. The said statement was part and parcel of papers those were sent to PW1 Sanctioning Authority Shri Atulchandra Kulkarni. Said Sanctioning Authority Shri Atulchandra Kulkarni has also accepted in his cross-examination that statement dated 16.12.1995 was before him and which is having a reference of settlement between Sudhakar and Rukhminibai about the amount. 19. Learned Judge of the Court below noticed that the Sanctioning Authority did not apply its mind. Said Sanctioning Authority Shri Atulchandra Kulkarni has also accepted in his cross-examination that statement dated 16.12.1995 was before him and which is having a reference of settlement between Sudhakar and Rukhminibai about the amount. 19. Learned Judge of the Court below noticed that the Sanctioning Authority did not apply its mind. Further, PW6 Investigating Officer Jamnaprasad Pande has also accepted in his cross-examination that during the course of investigation he has recorded statement of Hasanrao Ubarhande who was examined as a defence witness. Though investigating officer recorded his statement, the investigating officer has stated during the course of his cross-examination that since it was not supportive to the prosecution, he chose not to file said statement on record. In my view, learned Judge of the Court below has rightly considered of non-placing statement of DW1 Hasanrao Ubarhande on record and non-examining him as prosecution witness in its correct perspective. 20. Further, it would be useful to point out the evidence of PW2 Atmaram Pundlik Aarakh. This witness was not declared hostile by the prosecution and, therefore, what this prosecution witness states is binding on the prosecution. The relevant portion from his evidence is as under : “It is true that Jadhav had said to me that I should ask Sudhakar to come to Buldana on next day to make the payment of their settlement. Jadhav had also stated that Rukhminibai was insisting him that though there was settlement between he and Sudhakar, but she has not received the settlement amount. When I gave message to Sudhakar, he said that he will go accordingly.” 21. From the aforesaid evidence also it is clear that learned Judge of the Court below was right that on preponderance of probabilities the defence of the respondent was probable one and, therefore, merely because tainted notes were found in possession, one should not readily jump to the conclusion that there was a demand from the respondent by way of illegal gratification. 22. Merely because two views are possible, the Appellate Court should not substitute its own views in place of views of the Trial Court, especially when the view taken by the Trial Court is just and is based on available evidence on record. 22. Merely because two views are possible, the Appellate Court should not substitute its own views in place of views of the Trial Court, especially when the view taken by the Trial Court is just and is based on available evidence on record. It is not the case of the appellant/State that the available evidences were not considered by learned Judge of the Court below nor it is its case that the approach of learned Judge of the Court below is perverse one. 23. In that view of the matter, I see no reason to interfere with a well reasoned judgment of learned Judge of the Court below. Hence, I pass the following order: ORDER (i) The Criminal appeal is dismissed.