JUDGMENT : The appellant is assailing the judgment and order dated 16-9-2002 passed by the learned Special Judge, Nagpur in Special Case 28/1992, by and under which the appellant (hereinafter referred to as the “accused”) is convicted for offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (“Act” for short) and is sentence to suffer rigorous imprisonment for three years and to payment of fine of Rs.2,5000/and is further convicted for offence punishable under Section 13(1)(d) and 13(2) of the Act and is sentenced to suffer rigorous imprisonment for three years and to payment of fine of Rs.2,500/. 2. The genesis of the prosecution lies in complaint lodged at 400 p.m. on 03-3-1992 by Madhusudan Ade (P.W.1) with the Anti Corruption Bureau, Nagpur (ACB). The complainant, who was working as a reporter with All India Reporter, Nagpur stated that he contacted the accused on 27-2-1992 with a request that a medical certificate of the Civil Surgeon, Nagpur be issued to the complainant. The accused, who was attached to the office of the Civil Surgeon, Nagpur as a stenographer did not issue the certificate on 27-2-1992 and asked the complainant to come the next day. The complainant met the accused on 28-2-1992 and was asked to contact the accused on 03-3-1992. The complainant, alongwith a friend Shri Kotangale met the accused at 1200 noon on 03-3-1992 and requested that medical certificate of the Civil Surgeon be issued to the effect that the complainant needs rest for fifteen days. The accused demanded illegal gratification of Rs.300/, the complainant protested pointing out that he was not well since last two to three months and was not attending duty and would not be in a position to pay Rs.300/. The accused scaled down the demand of Rs.250/. The accused asked the complainant to come between 10:00 a.m. to 11:00 a.m. on 04-3-1992 with the amount. The complainant states that he is not inclined to pay the illegal gratification. 3. In order to keep the record straight, it must be noted that according to the complaint dated 03-3-1992, on several occasions prior to the said demand of Rs.250/, the complainant obtained medical certificates from the office of the Civil Surgeon, Nagpur with the help of the accused and paid various amounts to the accused as illegal gratification. In view of the said complaint, it was decided to trap the accused. 4. In view of the said complaint, it was decided to trap the accused. 4. Before the evidence on record is considered and appreciated, one relevant feature of the prosecution case must be noted. The accused is a stenographer and in the teeth of the evidence on record inter alia the evidence of the Civil Surgeon Shri Prakashchandra Waghe (P.W.5) it is irrefutable that the accused was in no position to issue the medical certificate of the Civil Surgeon. An employee seeking medical certificate of the Civil Surgeon is required to obtain the OPD Card by paying the prescribed fees, the employee is then examined by the Civil Surgeon who dictates the contents of the medical certificate to the steno. The limited duty of the stenographer is to type the contents of the medical certificate as dictated by the Civil Surgeon. 5. The complainant, who is examined as P.W.1, did not support the prosecution. He was declared hostile and was crossexamined by the learned Additional Public Prosecutor. Nothing is elicited in the crossexamination of P.W.1 to assist the prosecution in proving the demand. Au contraire, in the crossexamination on behalf of the accused, P.W.1 states thus : “Naidu has not demanded bribe to me. He has demanded his money back to me. I thought that he is demanding bribe thereby I have lodged a complaint.” The said admission is of some significance, since the defence of the accused, which he immediately disclosed to the investigating officer, was that the complainant owed him Rs.250/, when he accepted the amount he was under the impression that the complainant was making the repayment of the amount of loan. The disclosure is recorded in Exhibit 107A. 6. The prosecution did not prove the payment of fees statutorily prescribed to obtain the OPD Card. The OPD Card (Article-F) reveals that initially some other name is written which is scored off and the name of the complainant Madhukar Ade is inserted. P.W.1 Madhukar Ade admits that Article-F OPD Card bears the name of a different patient. The story of the prosecution that the complainant was asked by the accused to come with Rs.250/on 04-3-1992 to obtain the medical certificate of the Civil Surgeon is rendered extremely doubtful for reasons more than one. The accused-stenographer was in no position to ensure that the Civil Surgeon would issue the medical certificate to the complainant. The story of the prosecution that the complainant was asked by the accused to come with Rs.250/on 04-3-1992 to obtain the medical certificate of the Civil Surgeon is rendered extremely doubtful for reasons more than one. The accused-stenographer was in no position to ensure that the Civil Surgeon would issue the medical certificate to the complainant. The issuance of the certificate was dependent on the Civil Surgeon being satisfied, on examining the complainant, that the complainant was not well enough to report for duty. The Civil Surgeon Shri Prakashchandra Waghe was on leave on 04-3-1992 and Dr. Gode was incharge. The evidence would suggest that the complainant did not obtain the OPD Card which was mandatory before he could even be examined by the Civil Surgeon. At the cost of repetition, except for taking down the dictation of the Civil Surgeon, the accused-stenographer could have done precious little to show any favour to the complainant. It must be borne in mind that there is no allegation against the Civil Surgeon nor was the charge, of abetment. Be it noted, that the complainant does state in the evidence that the accused asked him whether the amount is brought and the complainant replied in the affirmative. P.W.1 states that he gave the amount of Rs.250/to the accused which was accepted. The defence is not disputing the demand and acceptance of Rs.250/. The bone of contention is that according to the defence, the amount was paid to repay the loan amount and was accepted as such. The direct admission is already extracted supra. It would further be apposite to note the following statement of P.W.1 in the crossexamination on behalf of the accused. “17. As I was transferred at Bombay therefore I was under mental tension. My elder brother was died six months prior to incident. As I was relieved from Nagpur, there was no salary to me and it is one of the reason for mental tension. Due to my family problem I have made representation to cancel my transfer. Due to my financial difficulty I used to seek financial help from my friend. In the last week of January 1992 I have demanded the hand loan of Rs.500/to Bhagwan Wahane. When I went to demand money to Bhagwan Wahane, Naidu was present at the house of Bhagwan Wahane. When I have demanded Rs.500/to Bhagwan Wahane. Due to my financial difficulty I used to seek financial help from my friend. In the last week of January 1992 I have demanded the hand loan of Rs.500/to Bhagwan Wahane. When I went to demand money to Bhagwan Wahane, Naidu was present at the house of Bhagwan Wahane. When I have demanded Rs.500/to Bhagwan Wahane. He said that now he is not having Rs.500/, Bhagwan Wahane has given Rs.250/ from him and by taking Rs.250/from Naidu has given it to me. 18. After 15 to 20 days I have paid back Rs.500/to Wahane. After return of money and till I have lodged a complaint to A.C.B., I have not visited to Bhagwan Wahane, there was no meeting between us. I was not having idea whether Bhagwan Wahane has returned Rs.250/to Naidu. Bhagwan Wahane has informed me that he has not returned the money of Naidu. Bhagwan Wahane has informed this fact to me after the trap when he met with me. When Naidu has demanded money to me I thought that he is demanding bribe, but he was demanding his money back.” 7. It is further admitted by P.W.1 that since the accused cautioned him that in view of his improving health the Civil Surgeon may not issue the medical certificate, he was angered. 8. The shadow panch Shri Anil Lingayat, who is examined as P.W.2, has deposed that the accused asked the complainant whether the work is done as stated and whether the complainant has brought the money and the complainant answered affirmatively. The accused said 'give the money' and the complainant gave the money to the accused. I am afraid, that this evidence is not sufficient to prove that the accused decisively and conclusively demanded illegal gratification. I may reiterate, that it is not in dispute that the accused accepted Rs.250/from the complainant. The million dollar question is whether the money was accepted as illegal gratification or as refund of the loan amount. It is a well settled position of law that proof of a decisive and conclusive demand is the very sine qua non ingredient of offence under the Act. In the absence of such proof, the acceptance and recovery of amount would not be sufficient to establish the offence under the Act beyond reasonable doubt. It is a well settled position of law that proof of a decisive and conclusive demand is the very sine qua non ingredient of offence under the Act. In the absence of such proof, the acceptance and recovery of amount would not be sufficient to establish the offence under the Act beyond reasonable doubt. The learned Counsel for the accused Shri J.M. Gandhi relies on a relatively recent judgment of the Hon’ble Apex Court in V. Sejappa v. State By Police Inspector Lokayukta, Chitradurga reported in AIR 2016 SC 2045 , and in particular the observations of the Hon’ble Apex Court in paragraph 10 which read thus : “10. In order to constitute an offence under Section 7 of the Prevention of Corruption Act, 'proof of demand' is a sine quo non. This has been affirmed in several judgments including a recent judgment of this Court in B. Jayaraj v. State of Andhra Pradesh (2014) 13 SCC 55 : (AIR 2014 SC (supp) 2837), wherein this Court held as under:" 7. Insofar 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 v. State of A.P. (2010) 15 SCC 1 : ( AIR 2011 SC 608 ) and C.M. Girish Babu v. CBI (2009) 3 SCC 779 : ( AIR 2009 SC 2022 )." The same view was reiterated in P. Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and Anr. (2015) 10 SCC 152 : ( AIR 2015 SC 3549 )” 9. The learned Counsel for the accused Shri J.M. Gandhi would further rely on the observations of the Hon’ble Apex Court in Rabhbir Singh v. State of Punjab reported in (1976) 1 SCC 145 , to substantiate the submission that since the accused was in no position to show any favour to the complainant, the prosecution case is rendered vulnerable. The relevant observations in the said judgment read thus : “5. The relevant observations in the said judgment read thus : “5. The only issue which was then being pressed by Jagdish Raj was that relating to exemption from payment of goods tax and so far as that issue was concerned, the appellant had nothing to do with it. There was, therefore, clearly no motivation for Jagdish Raj to give bribe to the appellant for obtaining grant of exemption. This circumstance weakens the foundation on which the edifice of the prosecution story rests and introduces an element of infirmity in it.” 10. The learned Additional Public Prosecutor invites my attention to the evidence of P.W.8 Anthony Francis who claims to be present in the office of the Civil Surgeon to obtain a similar certificate. His evidence, however, takes the case of the prosecution no further since all that is said by P.W.8 is that the accused asked the complainant as to whether he has brought as asked and the complainant answered in the affirmative. 11. In the teeth of evidence on record, it would be extremely unsafe to record a finding that the prosecution has proved beyond reasonable doubt that the accused demanded illegal gratification. The defence is more than probabilsed on the touchstone of preponderance of probabilities. The evidence on record is not of such clinching nature as would rule out every hypothesis other than that of the guilt of the accused. The benefit of doubt must necessarily go in favour of the accused. 12. The judgment and order impugned is set aside and the accused is acquitted of the offence punishable under Sections 7, 13(1) (d) and 13(2) of the Act. 13. The bail bond of the accused shall stand discharged and fine paid by the accused, if any, shall be refunded to him. The appeal is allowed.