JUDGMENT: Exception is taken to the judgment and order dated 30.06.2008, in Special Criminal Case 20 of 2002, delivered by the Special Judge (Anti Corruption), Chandrapur, by and under which, the appellant (hereinafter referred to as “the accused”) is convicted of offence punishable under section 7 of the Prevention of Corruption Act, 1988 (“Act” for short) and is sentenced to suffer rigorous imprisonment for one year and to payment of fine of Rs. 500/and is further convicted of offence punishable under section 13(1) (d) read with section 13(2) of the Act and is sentenced to suffer rigorous imprisonment for one year and payment of fine of Rs. 500/. 2. Heard Shri. S.V. Sirpurkar, the learned counsel for the accused and Shri. P.S. Tembhare, the learned Additional Public Prosecutor for the respondent / State. 3. The complainant is one Pradip Jogi, who sought financial assistance from a cooperative bank in November 2001. To the said end, the complainant needed 7/12 extract with entry of loan recorded and he approached the accused who was the Talathi posted at Ghuggus. The complainant met the accused on 20.11.2001 with a request that 7/12 extract with the loan entry be issued. The accused allegedly told the complainant that some expenditure will have to be incurred. The accused initially asked the complainant to pay Rs. 2000 to 3000/, negotiations ensued and the demand was scaled down to Rs. 2000/. The complainant approached the accused again on 24.11.2001 and 26.11.2001, and on both the occasions, the complainant was asked to pay Rs.2,000/. The accused asked the complainant to come with the bribe amount of Rs. 2000/between 2.00 pm to 3.00 pm on 27.11.2001 to the Talathi office at Ghuggus. The complainant was not inclined to pay the bribe and approached the office of the Anti Corruption Bureau, Chandrapur (ACB). On the basis of the complaint, a decision to trap the accused was taken, panchas were summoned, the usual demonstrations of the phenolphthalein powder and the sodium carbonate test were given, the standard protocol was explained to the complainant and panchas and a panchanama was prepared. On 27.11.2001 at 2.00 p.m. the ACB squad accompanied by the complainant and the panchas proceeded towards Ghuggus. The ACB squad stopped the official vehicle at the ACC Cement factory road and from there the complainant and the shadow panch proceeded towards office of the accused on motorcycle. 4. On 27.11.2001 at 2.00 p.m. the ACB squad accompanied by the complainant and the panchas proceeded towards Ghuggus. The ACB squad stopped the official vehicle at the ACC Cement factory road and from there the complainant and the shadow panch proceeded towards office of the accused on motorcycle. 4. The complainant and the shadow panch went to the Talathi office at Ghuggus, inquired about the whereabouts of the accused, they were told that the accused was not in office and would be returning shortly, while the complainant and the shadow panch were waiting for the accused in front of the Tahathi office, the accused arrived on his Hero Honda motorcycle. The complainant and the shadow panch followed the accused and entered the office. The complainant told the accused that as directed, the complainant has come and handed over the printed blank 7/12 extract form. The accused told the complainant that the document will have to be signed by his superior and were only the signature of the accused sufficed, the accused would have done the work then and there. The accused then told the complainant that he would carry the documents, and then obtain the signature of the superior and hand over the documents later on. The complainant agreed and the accused thereafter told the complainant to pay the amount. The complainant offered the tainted currency notes, the accused accepted the currency notes, the predetermined signal was given and the accused apprehended by the ACB squad. 5. Offence under relevant provisions of the Act was registered against the accused. The investigation was completed and the statutory sanction was obtained and chargesheet was submitted in the Special Court. 6. The defence of the accused, is that arrears of land revenue were outstanding against the complainant, the complainant was told that unless the arrears of land revenue are cleared, the 7/12 extract with entry of loan will not be issued. The currency notes were accepted, not as illegal gratification, but under the impression that complainant was making the payment of the arrears of land revenue. 7. Shri. S.V. Sirpurkar, the learned counsel for the accused submits, that accused has successfully brought on record an alternate hypothesis which is incompatible with the guilt of the accused. The benefit of the doubt must necessarily go to the accused, is the submission. 7. Shri. S.V. Sirpurkar, the learned counsel for the accused submits, that accused has successfully brought on record an alternate hypothesis which is incompatible with the guilt of the accused. The benefit of the doubt must necessarily go to the accused, is the submission. Shri. S.V. Sirpurkar, would further submit, that proof of conclusive and decisive demand of illegal gratification is the very sinequa non ingredient which must be established by the prosecution beyond reasonable doubt, before the accused can be convicted of offence punishable under the provisions of the Act. The acceptance and recovery of the currency notes, would be of little significance if the demand is not proved, is the submission. Reliance is placed on the following observations in A. Subair vs. State of Kerla, (2009) 6 SCC 587 . “It needs no emphasis that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration”. 8. Shri. S.V. Sirpurkar, the learned counsel for the accused invites my attention to the exposition of law by the Apex Court in Panalal Damodar Rathi Vs. State of Maharashtra, 1980 SCC (Cri.) 121. Shri S.V. Sirpurkar, contends relying on Panalal Damodar Rathi Vs. State of Maharashtra that the evidence of the complainant is no better than that of an accomplice and must be subjected to close scrutiny. The learned counsel would further contend that an accused who is facing a prosecution under the provisions of the Act, must be presumed to be innocent till the prosecution successfully proves that the accused demanded and accepted illegal prosecution. 9. Per contra, Shri P.S. Tembhare, the learned Additional Public Prosecutor submits, that while there can not be any demur qua the enunciation of law to which Shri. S.V. Sirpurkar invites the attention of the Court, the prosecution has proved, by cogent and unimpeachable evidence that the accused demanded and accepted illegal gratification. 10. The complainant Pradip Jogi is examined as PW 1. Concededly, no direct evidence other than the evidence of the complainant is adduced by the prosecution to prove the initial demand, allegedly made on 20.11.2001 and thereafter on two or three occasions, as is the version of the complainant. 10. The complainant Pradip Jogi is examined as PW 1. Concededly, no direct evidence other than the evidence of the complainant is adduced by the prosecution to prove the initial demand, allegedly made on 20.11.2001 and thereafter on two or three occasions, as is the version of the complainant. 11. The complainant admits that he did not disclose to any person, prior to the complaint lodged with the ACB, that the accused demanded illegal gratification. The version of the complainant is that at the time of the trap, after exchange of salutations, the accused offered the complainant and the shadow panch seats and inquired whether the amount was brought. The deposition is that the complainant replied in the affirmative and handed over the marked currency notes to the accused who accepted them with his right hand and put them in the left chest pocket. The complainant has denied the suggestions in the searching cross-examination that he was in arrears of land revenue, and he was told by the accused that unless the arrears of land are cleared, 7/12 extract can not be issued with the entry of bank loan, that the accused inquired with the complainant as to whether the amount towards arrears of land revenue was brought and that the currency notes of Rs. 500/were on the inner side and were covered by currency notes of rupees hundred. The suggestion that after accepting the amount, the accused told the complainant to wait till receipt is prepared and handed over is also denied. The complainant further denies the suggestion that the accused is falsely implicated at the instance of village Sarpanch one Shri. Bhongale, since the relations between the accused and the said Sarpanch were strained as the accused was a stickler for rules. The complainant, however, admits that when he and the shadow panch entered the office of the accused, the accused was busy receiving payments towards land revenue and issuing receipts. The shadow panch Bhaskar Satokar is examined as PW 2. His version of what transpired when he accompanied the complainant to the office of the accused is thus: “First of all the accused inquired with complainant about me and the complainant told the accused that I was his uncle. The complainant further disclosed that he is required to pay the land revenues. Thereafter, the complainant offered the amount. His version of what transpired when he accompanied the complainant to the office of the accused is thus: “First of all the accused inquired with complainant about me and the complainant told the accused that I was his uncle. The complainant further disclosed that he is required to pay the land revenues. Thereafter, the complainant offered the amount. The accused accepted the same and put in his left chest pocket. Immediately the complainant gave the signal”. 12 PW 2, who is the shadow panch has not deposed that any demand for illegal gratification was made by the accused. Au contraire, the version of PW 2 is that the complainant disclosed to the accused that he is required to pay the land revenue and then offered the amount which the accused accepted. PW 2 is not treated as a hostile witness. In the cross-examination, PW 2 deposes thus: “When the marked currency notes were put in the left chest pocket of the complainant, they were folded in the manner that currency notes of Rs.500/were in inner side covered by currency notes of Rs.100/. When we entered in the office of accused on his arrival, we found that the accused was busy with agriculturists in receiving the land revenues. The accused was holding pen in his right hand. After receiving the amount from the complainant the accused asked him just to wait and he will issue the receipt. He had also further told that the circle Inspector was not present and after his arrival the work will be completed. When accused was nabbed he had disclosed to the raiding party that the amount was received towards arrears of land revenue”. 13 The version of PW 1 complainant is that the accused asked him as to whether the amount is brought. Shri. S.V. Sirpurkar, the learned counsel, would urge that a stray sentence or query, of such a nature is not suggestive of a conclusive and decisive demand. The learned counsel invites my attention to the following observations of the Apex Court in Mukhtiar Singh (Since Deceased) through his L.R. vs. State of Punjab, 2017 (7) Scale 702 and in particular to paragraphs 14, 15 and 25, which read thus : “14. The learned counsel invites my attention to the following observations of the Apex Court in Mukhtiar Singh (Since Deceased) through his L.R. vs. State of Punjab, 2017 (7) Scale 702 and in particular to paragraphs 14, 15 and 25, which read thus : “14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P. underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13(1)(d)(i) and (ii) of the Act. It was recounted as well that 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 proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the prerequisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder: “23. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the prerequisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder: “23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder. 25. It would thus be patent from the materials on record that the evidence with regard to the demand of illegal gratification either of Rs.3,000/which had been paid or of Rs.2,000/as made on the day of trap operation is wholly inadequate to comply with the prerequisites to constitute the ingredients of the offence with which the original accused had been charged. Not only the date or time of first demand/payment is not forthcoming and the allegation to that effect is rather omnibus, vague and sweeping, even the person in whose presence Rs.3,000/at the first instance is alleged to have been paid i.e. Santosh Singh Lamberdar, has neither been produced in the investigation nor at the trial. In other words, the bald allegation of the complainant with regard to the demand and payment of Rs.3,000/as well as the demand of Rs.2,000/has remained uncorroborated. Further to reiterate, his statement to this effect lacks in material facts and particulars and per se cannot form the foundation of a decisive conclusion that such demand in fact had been made by the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Viewed in this perspective, the statement of complainant and the Inspector Satpal, the shadow witness in isolation that the original accused had enquired as to whether money had been brought or not, can by no means constitute demand as enjoined in law as an ingredient of the offence levelled against the original accused. Such a stray query ipso facto in absence of any other cogent and persuasive evidence on record cannot amount to a demand to be a constituent of the offence under Section 7 or 13 of the Act.” I am inclined to agree with the learned counsel Shri S.V. Sirpurkar that the prosecution has not proved a decisive demand beyond reasonable doubt. The evidence of complainant is not implicitly reliable and the defence has successfully created a doubt about the veracity of the version of the complainant that the accused demanded illegal gratification. The evidence of PW 2 shadow panch, who is not declared hostile and whose evidence must, therefore, bind the prosecution, substantially, if not entirely, supports the defence that the complainant was in arrears of land revenue and the amount was accepted by the accused under the impression that the arrears of land revenue were being cleared. Be it noted, that the shadow panch admits that the accused made an immediate disclosure that the amount was received towards the amount of land revenue. 14. In my opinion, the accused has more than probabilized the defence on the touchstone of preponderance of probabilities. The benefit of doubt, must necessarily go to the accused. I am not persuaded to uphold the conviction of the accused since the prosecution has not proved a decisive demand, much less beyond reasonable doubt. The judgment and order impugned is set aside. The accused is acquitted of offence punishable under section 7, 13(1) (d) read with section 13(2) of the Prevention of Corruption Act. The bail bond of the accused shall stand discharged. Fine paid by the accused, if any, shall be refunded. The appeal is allowed.