JUDGMENT : Feeling aggrieved by the judgment dt.17-10-2006 in C.C.No.17 of 1996 passed by the Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, the appellant/accused officer filed the present Criminal Appeal. 2. Vide aforesaid judgment, the Trial Court convicted the appellant/accused officer for the offences under Sections 7 and 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988 (for brevity ‘the Act, 1988’). The trial Court directed that the appellant/accused officer is sentenced to undergo Rigorous Imprisonment for a period of one year for the charge under Section 7 of the Act, 1988 and to pay fine of Rs.1000/-, in default, to undergo Simple Imprisonment for one month. The trial Court further sentenced the appellant/accused officer to undergo Rigorous Imprisonment for a period of one year for the charge under Section 13 (1) (d) of the Act punishable under Section 13 (2) of the Act, 1988 and to pay a fine of Rs.1000/-, in default, to undergo Simple Imprisonment for one month. It is further directed by the Trial Court in the impugned judgment that both the substantive sentences of imprisonment of accused officer shall run concurrently and in default sentences shall run separately. The undergone period of the appellant/accused officer as U.T.P. if any, shall be set off. 3. The factual matrix of the present case is as follows: The appellant/accused officer was Prohibition and Excise Sub-Inspector Thorrur, Warangal District at the relevant point of time. P.W.1 – Daravath Komrelli, resident of Jammikunta Thanda, H/o.Yellampet, Marripeda Mandal in Warangal District. P.W.1 is the owner of Ac.2.00 gts of land which is in the name of his father. They have an agricultural well and an electric motor fitted therein. On Monday morning at about 10 a.m., the appellant/accused officer along with Constable came in a Jeep to the said land, informed P.W.1 that he is growing ganja. The appellant/accused officer along with his staff also has taken the stator of the said electric motor belongs to Angothu Pantholu of the very same village and kept in the Jeep. P.W.1 further alleged that he has requested the appellant/accused officer to release the said starter for which the appellant/accused officer requested P.W.1 to come on Tuesday morning at about 9 a.m.. P.W.1 further alleged that he has requested the appellant/accused officer to release the said starter for which the appellant/accused officer requested P.W.1 to come on Tuesday morning at about 9 a.m.. Accordingly, he went to the house of appellant/accused officer with a request to release the starter, for which the appellant/accused officer informed P.W.1 that P.W.1 is growing ganja, therefore, for not registering a case against P.W.1, and to release the starter, P.W.1 has to pay an amount of Rs.3,000/- towards bribe. P.W.1 informed the appellant/accused officer that he is not in a position to pay the said huge amount of Rs.3,000/- and requested the appellant/accused officer to release the starter. Then the appellant/accused officer threatened P.W.1 stating that in the event of non-acceding to the demand of Rs.3,000/- as illegal gratification, he is going to register a case against P.W.1 and send him to remand. Since there is no other alternative, P.W.1 informed appellant/accused officer that he will come after two days by arranging the money, for which, the appellant/accused officer informed P.W.1 to come on Thursday to his house along with said amount of Rs.3,000/-. P.W.1 further alleged that Angothu Panthulu also informed him about demand of illegal gratification by the appellant/accused officer for release of his starter. It is also further alleged by P.W.1 that even ten days prior, the appellant/accused officer demanded bribe from the persons belongs to Somla Tanda village under the very same threat and allegation of illegal cultivation of ganja. Since P.W.1 was not interested to pay the said amount of Rs.3,000/- towards bribe, approached A.C.B. officials by way of lodging Ex.P-1, complaint dt.22-03-1995 and on receipt of the same, P.W.26, D.S.P., A.C.B., registered a case by way of issuing Ex.P-63, FIR. Thereafter, P.W.26 laid trap by following the procedure against the appellant/accused officer. On completion of the investigation, A.C.B. officials filed charge sheet against the appellant/accused officer and the same was taken on file vide C.C.No.17 of 1996. 4. The Trial Court framed the charges against the appellant/accused officer for the offences under Sections 7 and 13 (1) (d) of the Act, 1988, the appellant/accused officer denied the charges levelled against him and prayed for trial. Accordingly, the Trial Court proceeded with the trial. 5. During the trial, the prosecution has examined as many as 27 witnesses i.e. P.Ws.1 to 27 and marked Exs.P-1 to P-64. Exs.X-1 to X-10 were also marked. Accordingly, the Trial Court proceeded with the trial. 5. During the trial, the prosecution has examined as many as 27 witnesses i.e. P.Ws.1 to 27 and marked Exs.P-1 to P-64. Exs.X-1 to X-10 were also marked. MOs.1 to MOs.11 were exhibited. The appellant/accused officer has examined two witnesses as DWs.1 and 2 and also filed Exs.D-1 to D-3. 6. The Trial Court after completion of trial, on consideration of entire evidence both oral and documentary, convicted the appellant/accused officer and sentenced in the manner stated above. 7. Feeling aggrieved by the same, the appellant/accused officer preferred the present Criminal Appeal. 8. Heard Sri A. Hariprasad Reddy, learned counsel for the appellant/accused officer and Sri T.L. Nayan Kumar, learned Additional Standing Counsel-cum-Special Public Prosecutor for A.C.B., Telangana, Hyderabad appearing for the respondent-State. 9. Impugning the judgment, learned counsel for the appellant/accused officer would submit that P.W.13, the Sarpanch of the said village, is having animosity with the appellant/accused officer with regard to the demand of arrears of excise and also initiating recovery proceedings under the Revenue Recovery Act, 1890. With the said animosity, P.W.13, in collusion with his cousin, P.W.2, P.W.1 and A.C.B. officials implicated the appellant/accused officer in a false case. He would further contend that P.W.26 without verifying the genuineness of the complaint given by P.W.1 and other related issues including seizure of starters etc., laid trap against the appellant/accused officer without following due procedure. He would further contend that there was no official favour that was pending with the appellant/accused officer at the relevant point of time. The appellant/accused officer is not a person to release the motors. According to him, the prosecution utterly failed to prove the very demand and therefore the question of acceptance of bribe amount as alleged by the prosecution does not arise. 10. He would further contend that there was no demand of illegal gratification by the appellant/accused officer and the prosecution failed to prove the said demand alleged to be made by the appellant/accused officer. 11. The defence of the appellant/accused officer is that he has received the said money towards excise arrears and the same is also mentioned in the post-trap proceedings by way of spot explanation. Ex.D-1, the chit seized discloses the said fact. 12. 11. The defence of the appellant/accused officer is that he has received the said money towards excise arrears and the same is also mentioned in the post-trap proceedings by way of spot explanation. Ex.D-1, the chit seized discloses the said fact. 12. According to him, when the prosecution failed to prove the very demand itself, the question of drawing presumption under Section 20 of the Act, 1988 does not arise and therefore, the trial Court erred in convicting the appellant/accused officer. 13. According to the learned counsel for the appellant/accused officer, mere recovery of tainted notes is not sufficient and the prosecution has to prove the demand and acceptance, which are twin requirements, sine qua non, to record conviction under Section 7 of the Act, 1988. The prosecution has to prove the demand and acceptance beyond reasonable doubt like any other offence. According to him, the Trial Court did not consider those aspects and there is no finding on Ex.D-1. With the said contentions, learned counsel for the appellant/accused officer prayed for setting aside the impugned judgment and for acquittal of the appellant/accused officer. 14. Per contra, supporting the impugned judgment, learned Special Public Prosecutor would contend that there was no spot explanation offered by the appellant/accused officer and the defence theory with regard to the receipt of tainted notes towards excise arrears is only an after thought. According to him, the prosecution has proved the trap, recovery of tainted notes and demand and acceptance of bribe amount beyond reasonable doubt. According to him, the alleged receipt of excise arrears of the appellant/accused officer by way of cash from P.W.1 is not permissible and therefore, the defence theory of receipt of the said cash towards tax arrears cannot be believed. He would further submit that the said defence theory was set up by the appellant/accused officer only to get over from the present case. He would further submit that the Trial Court on consideration of the entire evidence both oral and documentary, gave a specific finding and therefore, the same does not warrant interference by this Court in the present Criminal Appeal. With the said contentions, he prayed to dismiss the Criminal Appeal. 15. He would further submit that the Trial Court on consideration of the entire evidence both oral and documentary, gave a specific finding and therefore, the same does not warrant interference by this Court in the present Criminal Appeal. With the said contentions, he prayed to dismiss the Criminal Appeal. 15. In view of said rival contentions, the points that arise for consideration by this Court in the present Criminal Appeal are as follows: (a) Whether the prosecution could prove the guilt of the accused for the offences under Section 7 and 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act, 1988? (b) Whether the impugned judgment is sustainable both under facts and law? POINTS (a) and (b): 16. It is the contention of the prosecution that the appellant-accused officer has demanded an amount of Rs.3,000/- towards illegal gratification from P.W.1 to do an official favour i.e. not registering a criminal case under NDPS Act against P.W.1 for cultivating ganja and to return the starter of electric motor seized by him, kept in his house. To prove the said official favour, the prosecution has relied upon the depositions of P.Ws.1 and 26. P.W.1 during his cross examination, categorically admitted that he has not mentioned the fact of demanding Rs.3,000/- in Ex.P-1, but it was on account of the pressure from P.W.13 and Sudhamani Rao (ACB Inspector), he has mentioned about the demand of Rs.3,000/- towards illegal gratification from P.W.1. P.W.13, Sarpanch of the said village, boregrudge against the appellant-accused officer since the appellant-accused officer and other excise officials came to his agricultural land, seized his electric motor on the ground of non-payment of excise tax and he was insulted in the village by the excise officials. Therefore, P.W.13 was having animosity with appellant-accused officer and other excise officials. With the said animosity, P.W.13, Sarpanch of the village, and his cousin P.W.2, implicated the appellant-accused officer in the present case. The prosecution failed to prove that the appellant-accused officer was in a position to play any role in registration of case and return of starter. On the other hand, the appellant-accused officer has established that he has received the said amount of Rs.3,000/- from P.W.1 towards rental arrears and prosecution witnesses admitted during cross examination that there was practice of collection of excise arrears in cash. He has relied upon Ex.D-1 receipt. On the other hand, the appellant-accused officer has established that he has received the said amount of Rs.3,000/- from P.W.1 towards rental arrears and prosecution witnesses admitted during cross examination that there was practice of collection of excise arrears in cash. He has relied upon Ex.D-1 receipt. The defence of the appellant-accused officer that he has received amount from P.W.1 towards excise arrears is consistent right from post trap proceedings and in Ex.P-8, post trap proceedings, his spot explanation was recorded. Therefore, the said defence theory is probable. Thus, the prosecution failed to prove that the appellant-accused officer was in a position to do official favour to P.W.1. 17. It is also relevant to note that the appellant-accused officer has proved that there was animosity between him and P.W.13, Sarpanch of the said village. It is also not in dispute that P.W.2 is the cousin of P.W.13. P.Ws 2 and 13 during their cross examination categorically admitted that there was animosity between P.W.13 and the appellant-accused officer due to seizure of his starter in the process of recovery of excise arrears and he was insulted in his village. It is also relevant to note that P.W.13 has admitted during cross examination that he knows Sudhamani Rao, Inspector, ACB, very closely and also seizure of three electrical starters belongs to him from his agricultural wells. Thus, it can be safely conclude that there was animosity between P.W.13 and the appellant-accused officer at the relevant point of time. 18. It is relevant to note that P.W.1, set the law into motion by way of lodging Ex.P-1 complaint, turned hostile. P.W.3, mediator and accompanying witness deposed about only trap proceedings. He did not depose about the demand. Moreover, P.W.3, during cross examination, has admitted that the appellant-accused officer during post trap proceedings, offered his explanation stating that he has received the said amount of Rs.3,000/- from P.W.1 towards tax arrears and the same was mentioned in Ex.P-8, post trap proceedings. In view of the same, now heavy burden lies on the prosecution to prove the demand of illegal gratification by the appellant/accused officer from P.W.1 by examining any independent witness. 19. It is relevant to note that P.W.2, an agriculturist of the village to which P.W.1 belongs, turned hostile. P.Ws.4, 5, 6, 8, 10, 13, 14, 15, 18 to 22 and 24 declared hostile. 20. 19. It is relevant to note that P.W.2, an agriculturist of the village to which P.W.1 belongs, turned hostile. P.Ws.4, 5, 6, 8, 10, 13, 14, 15, 18 to 22 and 24 declared hostile. 20. P.W.7, Home Guard, has admitted during cross examination that on the instructions of the higher officials, appellant-accused officer instructed them to collect rentals. P.W.9, President of Toddy Tappers Cooperative Society, Somaram village of Thorrur Mandal, Warangal District deposed that the appellant-accused officer came to his village for the purpose of collection of rentals, receipt of amount in cash, conducting of panchanamas, seizing of motors from the persons who are due excise arrears. During cross examination, he has admitted that the appellant-accused officer was very cordial and helpful to the toddy tappers and he was honest and strict. He never demanded any bribe from them. P.W.11, Carobar at Somaram gram panchayat deposed about collection of rentals, excise arrears in cash by the excise officials including the appellant-accused officer. P.W.12, an agriculturist of Somaram village, deposed about payment of rental arrears to excise officials in cash, receipt of the same by the excise officials and issuance of katcha receipts. It is relevant to note that P.W.17, Sub Inspector of Prohibition and Excise, deposed that they have received excise arrears and issued katcha receipts. It is also relevant to note that though in Ex.P-1 complaint and deposition of P.W.1, there was reference about Angothu Panthulu and Malothu Panthulu, the said personnel were not examined by the prosecution. P.W.26, DSP, ACB, trap laying officer, did not conduct any discreet enquiry into the genuineness of allegations made by P.W.1 in Ex.P-1 complaint. 21. P.W.26, DSP, ACB, and Trap Laying Officer, deposed about receipt of complaint, registration of case and laying of trap. During cross examination, he has categorically admitted that during post trap proceedings, the appellant-accused officer gave his explanation that he has received the said amount of Rs.3,000/- towards rental arrears due to the department and the said spot explanation of the appellant-accused officer was mentioned in Ex.P-8, post trap proceedings. 22. As stated above, the other prosecution witnesses were declared as hostile and nothing contra was elicited from them. In view of the above said depositions, the prosecution failed to examine any witness much less independent witness including mediator to prove the very demand itself. 22. As stated above, the other prosecution witnesses were declared as hostile and nothing contra was elicited from them. In view of the above said depositions, the prosecution failed to examine any witness much less independent witness including mediator to prove the very demand itself. P.W.1, complainant, who set the law in motion, disowned his complaint and turned hostile. In view of the same, heavy burden lies on the prosecution to prove the demand by examining reliable and probable witnesses. As stated above, P.W.3, accompanying witness, did not depose about demand of illegal gratification by the appellant-accused officer from P.W.1. On the other hand, he has deposed that the appellant-accused officer during post trap proceedings, explained to P.W.26, trap laying officer, that he has received the said amount towards rental arrears. The said spot explanation of the appellant-accused officer was mentioned in Ex.P-8, post trap proceedings. Thus, the prosecution failed to prove the very demand itself. 23. Learned Public Prosecutor would submit that the prosecution has proved the trap, recovery of tainted notes and that the chemical tests turned positive. He would further submit that though the prosecution witnesses including P.W.1 turned hostile, their evidence which is relevant can be relied upon. Therefore, the prosecution has proved the demand beyond reasonable doubt. But it is settled principle that mere recovery of tainted currency notes from the appellant-accused officer is not sufficient and the prosecution has to prove both demand and acceptance beyond reasonable doubt like any other criminal offence by examining proper and reliable witnesses. As discussed above, the prosecution failed to elicit anything contra from P.W.1 and other prosecution witnesses who turned hostile. Thus, in the present case, the prosecution failed to prove the very demand itself. 24. As discussed supra, the prosecution failed to prove the very demand itself and therefore the question of drawing presumption under Section 20 of the Act does not arise. There was animosity between the appellant-accused officer and P.W.13 at the relevant point of time. In fact, there was no official favour that was pending with the appellant-accused officer at the relevant point of time. The defence of the appellant-accused officer that he has received the amount towards arrears of rent was consistent and it is believable. There was animosity between the appellant-accused officer and P.W.13 at the relevant point of time. In fact, there was no official favour that was pending with the appellant-accused officer at the relevant point of time. The defence of the appellant-accused officer that he has received the amount towards arrears of rent was consistent and it is believable. It is relevant to note that prosecution witnesses including P.W.7, P.W.9, P.W.11, and P.W.17 have specifically deposed that there was practice of collection of excise arrears/rentals by the officials through cash and issue receipts. The same is supported by depositions of D.Ws.1 and 2 and Ex.D-1. Therefore, the defence of the appellant-accused officer is believable. More importantly, though the burden lies on prosecution to prove the demand, the prosecution failed to discharge the said burden by examining any witness much less relevant witness. 25. Therefore, the finding of the Trial Court that the prosecution has proved the demand and recording conviction by drawing presumption under Section 20 of the Act is contrary to the record and is not sustainable. 26. In the result, the Criminal Appeal is allowed. The impugned judgment dt.17-10-2006 in C.C.No.17 of 1996 passed by the Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad, is set aside. The appellant-accused officer is acquitted. He is on bail and therefore his bail bonds are discharged. 27. As a sequel, miscellaneous petitions pending, if any in this Criminal Appeal, shall stand closed.