JUDGMENT : – This criminal appeal is directed against the conviction and sentence dated 30-6-1998 passed by Special Judge, Mandla (M. P.) in Special Case No. 02/1996, whereby the appellant has been found guilty for the offence punishable under sections 7, 13(1)(d)(i) read with section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to undergo Rigorous Imprisonment for one years with fine of Rs. 1,000/- and Rigorous Imprisonment for two years with fine of Rs. 1,000/- respectively with default stipulations. The appeal is prosecuted by the legal heirs of the appellant, who expired on 31-12-2006, during the pendency of the appeal. 2. According to prosecution, the appellant was at the relevant time working as Block Development Education Officer at Bijadandi, district Mandla. Complainant Shankar Das Sonwani (P.W.-2) was working on the post of Teacher at Primary School Vijaypur, Bijadandi. The complainant was transferred from Vijaypur to Lalpur, Development Block, Shahpura on 27-7-1993. 3. As per complainant, his salary was stopped from July, 1993 to September, 1993, he therefore, approached the appellant for release/issuance of the salary for the aforestated period of three months. The appellant, it is claimed, demanded a bribe of Rs. 1,000/- to release the salary. The complainant paid him Rs. 500/-, after which his salary for two months was released. However, the appellant did not release the salary for 15 days and again demanded Rs. 500/-. As the complainant was not willing to pay the said amount, he approached the Lokayukt office, Jabalpur and submitted a written complaint (Ex.P-11). 4. According to prosecution, after verifying the contents of the complaint, a FIR (Ex.P-12) was registered on 12-1-1994 and a trap was arranged. Complainant was directed to give the bribe amount. According to prosecution, the said notes (5 notes of Rs. 100/- each) got treated with phenolphthalein powder and were kept in the pocket of complainant. The complainant was explained the significance of sodium carbonate solution test and asked not to touch the currency notes. The details of the trap that was planned was explained to all concerned including the complainant. Accordingly the plan was put into execution and on the receipt of the pre-arranged signal, the police party rushed inside the house of appellant. The bribe amount was recovered from the appellant. Thereafter sodium carbonate test was conducted on the hands of the appellant. The test proved positive, as the solution turned pink. 5. Accordingly the plan was put into execution and on the receipt of the pre-arranged signal, the police party rushed inside the house of appellant. The bribe amount was recovered from the appellant. Thereafter sodium carbonate test was conducted on the hands of the appellant. The test proved positive, as the solution turned pink. 5. A charge-sheet was filed against the appellant on completion of the investigation. Upon grant of sanction, cognizance of the offence was taken and charges were framed, to which the appellant pleaded not guilty. The prosecution examined 11 witnesses and exhibited Ex. P-1 to P-27 as documents. The plea of appellant was that he was falsely implicated by the complainant as he held a grudge against him. He was beaten up on the date of trap and forced to pick up the notes. In order to prove the defence, he had examined D.W.-1 Mahesh Kumar Mishra as defence witness. 6. The learned Special Judge held the appellant guilty of commission of the said offence and sentenced him as aforestated. Aggrieved and dissatisfied with the said judgment of conviction and sentence, the appellant is thus before this Court. 7. Shri Siddharth Datt, learned counsel appearing on behalf of the appellant contended that the appellant was beaten up and forced to pick up the marked notes. This fact also finds support from the testimony of the prosecution witnesses, but even if it is held that the same has been recovered from him, it would not be a determining factor in order to hold that appellant made demand of bribe and accepted the same. It is further urged that the appellant had no occasion to demand the money as the salary was already sanctioned even prior to the date of filing the complaint. 8. Shri Satyam Agrawal, learned counsel appearing on behalf of respondent/SPE Lokayukta submitted that the burden of proof was on the appellant and he having failed to explain as to how the amount of Rs. 500/- was found in his possession, the Special Court has not committed any mistake in recording a judgment of conviction. 9. In the present case, the complainant was examined as P.W.-2. Though, he is a competent witness, however, his evidence is required to be scrutinized with great care and caution. According to complainant, initially an amount of Rs. 1,000/- was demanded. A sum of Rs. 9. In the present case, the complainant was examined as P.W.-2. Though, he is a competent witness, however, his evidence is required to be scrutinized with great care and caution. According to complainant, initially an amount of Rs. 1,000/- was demanded. A sum of Rs. 500/- was said to have been paid against the demand and his two months salary has been released and for the remaining salary of 15 days of July, demand of Rs. 500/- was made. As regards the demand and acceptance of illegal gratification, the stand of complainant is that it took place inside the house of appellant. According to complainant, he came out of the house of appellant and gave the prearranged signal. On his signal, constable/I.O. S. K. Sharma (P.W.-10), T. S. Maravi (P.W.-3), member of trap party and N. S. Saiyyam (P.W.-8), who were all standing outside at the corner of Panchayat Office went inside the house of appellant and caught hold of him. According to complainant (P.W.-2), the appellant after accepting the money, counted it and kept it in the almirah below newspapers and assured the complainant for release of his 15 days salary. This entire transaction of demand and acceptance was done within a minute. The complainant then went out of the house and gave signal to the trap party by removing his gamcha. On his signal, S. K. Sharma (P.W.-10) and other members of the trap party, who were standing outside, went inside the house and caught hold of the hands of appellant and asked him to take out the bribe money and count it. 10. A suggestion was put to the complainant that the accused was beaten up and forced to pick up the money, to which he admitted that when S. K. Sharma (P.W.-10) asked the accused about bribe money, he did not say anything. The complainant was, therefore, asked to show the place where money was kept and after the complainant had indicated the place, S. K. Sharma slapped the accused and asked him to take out the money from that place and count it. Thereafter accused hands were washed in the solution. 11. T. S. Maravi (P.W.-3), Panchayat Inspector, a member of the trap party was asked by D.S.P. Shri N. S. Saiyyam (P.W.-8) to accompany the trap party. Thereafter accused hands were washed in the solution. 11. T. S. Maravi (P.W.-3), Panchayat Inspector, a member of the trap party was asked by D.S.P. Shri N. S. Saiyyam (P.W.-8) to accompany the trap party. According to him, the complainant (P.W.-2) went inside and come out of the house of appellant within a minute. On his signal, he along with S. K. Sharma (P.W.-10) and N. S. Saiyyam (P.W.-8) entered the house and caught hold of the hands of appellant, who had come out from inside of another room. As per this witness, S. K. Sharma (P.W.-10) asked the appellant about the bribe money to which he showed ignorance and stated “what money”. According to this witness the appellant totally refused accepting any kind of money. At that time, the complainant pointed to the “rack” and stated that money is kept there. On hearing this, Mr. Sharma (P.W.-10) slapped the appellant twice and forced him to took out the money and count it. After being slapped, the appellant got scared and took out the money from the place pointed out by the complainant and counted it and then his hands were dipped in the solution, which turned pink. This witness has further stated that on search, around the house, Rs. 9,000/- was found, to which the appellant clarified that this amount is his salary amount as he has not gone to his house for 2-3 months. 12. This witness has been declared hostile in view of this 161 statement, however, even after being declared hostile, he remained consistent in his story and could not be shaken by the prosecution. It is well settled that evidence of a witness, declared hostile is not wholly effaced from the record and that part of the evidence which is otherwise acceptable can be acted upon. 13. J. K. Singh (P.W.-5) another panch witness has admitted that he did not see the complainant going inside the house because from where he was standing, the house of accused was not visible clearly. It is thus clear that he could not see or hear, as to what actually transpired between the complainant and appellant inside the house of accused. He also corroborated the story of the complainant and T. S. Maravi (P.W.-3) that appellant when asked about bribe money, showed his ignorance. It is thus clear that he could not see or hear, as to what actually transpired between the complainant and appellant inside the house of accused. He also corroborated the story of the complainant and T. S. Maravi (P.W.-3) that appellant when asked about bribe money, showed his ignorance. He was then slapped by S. K. Sharma (P.W.-10) and asked to pick up the notes from the open rack, pointed out by the complainant. 14. S. K. Sharma (P.W.-10), IO, though denied hitting or slapping the accused, but he admitted that he was standing with J. K. Singh (P.W.-5), which shows that he also had not seen the demand being made or the money being voluntarily accepted by the accused/appellant. 15. Mahesh Kumar Mishra (D.W.-1), has deposed that the power to release the salary after one month, which had been withheld for any reason lies with the Project Officer and after three months could only released by the direction of Deputy Commissioner. He had stated that after relieving the complainant, the accused had no hold or power over his salary. This suggestion was also put to the complainant in his cross-examination, to which he has stated that he did not know that his 15 days salary for the leave period was deposited in treasury and that salary could now be released by the order of Deputy Commissioner. 16. The law is well settled that the credential value of defence witness is similar to that of prosecution witness and his evidence should not be thrown out merely because he has been examined in defence. 17. Insofar as regards the offence under section 7 of the P.C. Act is concerned, it is settled position in law that the 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 of the Act, unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be bribe. 18. In (2010) 15 SCC 1 , C. M. Sharma vs. State of A. P. the Supreme Court while referring to the cases of (2009) 3 SCC 779 , C. M. Girish Babu vs. CBI, High Court of Kerala and (1979) 4 SCC 725 , Suraj Mal vs. State (Delhi Admn.) has held thus : – 21. Mr. 18. In (2010) 15 SCC 1 , C. M. Sharma vs. State of A. P. the Supreme Court while referring to the cases of (2009) 3 SCC 779 , C. M. Girish Babu vs. CBI, High Court of Kerala and (1979) 4 SCC 725 , Suraj Mal vs. State (Delhi Admn.) has held thus : – 21. Mr. Rai, lastly submits that from the evidence of the prosecution witnesses the worst which can be said against the appellant is that currency notes were recovered from him. That itself, in his submission, does not constitute the offence. He submits that to bring home the charge the prosecution is required to prove beyond reasonable doubt that the accused had demanded the illegal gratification and accepted the same voluntarily. In support of the submission reliance has been placed on a decision of this Court in the case of C. M. Girish Babu vs. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 and our attention has been drawn to the paragraph 18 of the judgment which reads as follows: “18. In Suraj Mal vs. 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.” 19. In the present case, complainant went alone in the house of appellant and immediately came out within a minute. None of the members of the trap party, who were standing far outside saw the appellant coming out of his house or inviting the complainant to his house. At such a distance they could not hear the demand if made or see the money being handed over to the appellant by the complainant to prove that the same was pursuant to any demand made by the appellant. Apart from the initial complaint (Ex. P-11), there is no other evidence to show that appellant has made any demand of bribe from the complainant for release of his salary of 15 days. 20. Apart from the initial complaint (Ex. P-11), there is no other evidence to show that appellant has made any demand of bribe from the complainant for release of his salary of 15 days. 20. As regard the recovery of tainted money, the possession is not admitted by appellant, rather from the statement of complainant Shankar Das Sonwani (P.W.-2), T. S. Maravi (P.W.-3), J. K. Singh (P.W.-5) and Mahesh Kumar Mishra (D.W.-1), as pointed out in preceding paragraphs, it is evident that appellant had shown ignorance and denied taking bribe amount, he was slapped by S. K. Sharma (P.W.-10) and forced to pick up the notes from the place pointed out by the complainant, and thereafter if his hands were subjected to the phenopthaline powder test, certainly the colour of chemical solution would turn pink, because appellant already came into contact with the treated currency notes. 21. Another aspect which requires consideration from material circumstances is whether the appellant had any motive or reason to demand bribe. During the trap proceedings, certain documents were seized from the office, from the possession of Ganga Singh (P.W.-1). Ex. P-2 dated 7-1-1994, is the letter written by the complainant addressed to the Block Development Officer asking to release the salary for 15 days from 16-7-1993 to 31-7-1993, during the period when he was on medical leave. Ex. P-4 dated 14-9-1993, is the challan of money deposited in SBI Mandla Branch by the Treasury, which could not be disbursed to the absentee teachers. The details annexed to challan shows that it included complainant’s salary of 15 days, i.e., Rs. 1425/-. Ex.P-4 makes it evident that 15 days salary of complainant was sanctioned by the appellant before 14th September and could not be disbursed as complainant was absent. Ex. P-8 dated 22-11-1993 is the sanction letter by the appellant giving sanction to draw/release the salary of complainant Shankar Das Sonwane (P.W.-2) for the month of August, September and October, 1993. Ex.P-9 is the last pay certificate of the complainant showing that he has been paid upto 31-7-1993. 22. It is evident from Ex.P-4 and Ex. P-9 that complainant’s salary upto 31-7-1993 was already sanctioned by the appellant, though the same could not be disbursed to the complainant due to his absence and was therefore deposited in the treasury on 14-9-1993. Thereafter vide Ex. 22. It is evident from Ex.P-4 and Ex. P-9 that complainant’s salary upto 31-7-1993 was already sanctioned by the appellant, though the same could not be disbursed to the complainant due to his absence and was therefore deposited in the treasury on 14-9-1993. Thereafter vide Ex. P-8, dated 22-11-1993 the salary for the month of August, September and October, 1993 was also sanctioned, i.e., much before the date of filing the complaint by the complainant. Under the circumstances, the appellant had no occasion or reason to make the alleged demand from the complainant, as the salary of complainant had already been sanctioned much prior to the date when the complaint was filed. The complainant has admitted in his cross-examination that he got the appellant trapped as he was angered and annoyed by the action of appellant in relieving him one sided on 27-7-1993, though he did not want to be relieved. 23. The Supreme Court in the case of State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede, (2009) 15 SCC 200 has held : – 16. Indisputably, the demand of illegal gratification is a sine qua non for constitution of an offence under the provisions of the Act. For arriving at the conclusion as to whether all the ingredients of an offence, viz., demand, acceptance and recovery of the amount of illegal gratification have been satisfied or not, the Court must take into consideration the facts and circumstances brought on the record in their entirety. For the said purpose, indisputably, the presumptive evidence, as is laid down in section 20 of the Act, must also be taken into consideration but then in respect thereof, it is trite, the standard of burden of proof on the accused vis-à-vis the standard of burden of proof on the prosecution would differ. Before, however, 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. Even 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. 24. In the case of Ganga Kumar Shrivastava vs. State of Bihar, (2005) 6 SCC 211 , the Supreme Court held thus : – 22. 24. In the case of Ganga Kumar Shrivastava vs. State of Bihar, (2005) 6 SCC 211 , the Supreme Court held thus : – 22. There is yet another aspect of the matter. Admittedly, supply of electricity was restored or his house was connected with electric supply. According to the prosecution case, the supply of electricity was restored in the month of July, 1985 whereas the appellant took a stand that before the complaint was made by him regarding the allegation of bribe the electric supply was already given to the complainant. According to the appellant, such connection was given to the complainant on 22nd June, 1985. If this restoration of electric connection dated 22nd June, 1985 to the complainant can be accepted to be correct then there could have been no occasion for demand and acceptance of bribe either on 25th June, 1985 and 28th June, 1985 for the supply of electric connection. As noted hereinearlier, according to the prosecution case and also from the materials on record the electric connection to the complainant was alleged to have been given on 8th July, 1985. As noted hereinearlier, the appellant however took a stand that the electric connection was made on 22nd June, 1985. The necessary entry regarding electric connection was proved by the appellant by relying on Ext.F. Ext.G was also relied on by the appellant which was an intimation by Shri Bachhu Tiwary bearing endorsement of the appellant to the effect that connection was given on 22nd June, 1985. However, the complainant refused to give any certificate and thereby the appellant advised Shri Tiwary to get certificate from Local Mukhia which is Ext.C in the present case. Ext.K is an application of Ram Deo Rai to the Executive Engineer stating that electric connection had been given to the complainant on 22nd June, 1985. 25. It is borne out from the evidence placed on record particularly Ex.P-4, P-8 and P-9 that the salary of complainant for the period 16-7-1993 to 31-7-1993 and for the month of August and September had already been sanctioned by the appellant much prior to the date of complaint made by the complainant. Under such factual situation, the appellant had no occasion or reason to make any demand. Under such factual situation, the appellant had no occasion or reason to make any demand. It is also carved out from the evidence of complainant, particularly paragraphs 4 and 13 that he was annoyed and angered with the appellant and therefore, it would be highly unsafe to rely on his testimony that appellant made demand and accepted the bribe in absence of any independent corroboration. Further, the corroboration essential in a case like this for what actually transpired at the time of alleged occurrence and acceptance of bribe is very much wanting in this case. On the contrary, the testimony of T. S. Maravi (P.W.-3), J. K. Singh (P.W.-5), Mahesh Kumar Mishra (D.W.-1) that when the appellant denied receiving any bribe amount, he was slapped by S. K. Sharma (P.W.-10) and forced to pick up the currency notes, supports the defence taken by appellant. 26. In view of the admission made by the complainant in paragraphs 4 and 13 of his testimony, the statement of T. S. Maravi (P.W.-3), J. K. Singh (P.W.-5), Mahesh Kumar Mishra (D.W.-1) and the documents, Ex. P-4, P-8 and P-9, the very foundation of the prosecution case is shattered. 27. The law is well settled that the defence is found probable, due weightage should be given to it and the standard of proof should not be compared with that of prosecution, where it is obliged to prove its case beyond all reasonable doubts. 28. For the reasons stated hereinabove, I am unable to uphold the conviction and sentence awarded to the appellant by the learned trial Court. Resultantly, this appeal succeeds and is hereby allowed. The conviction of the appellant under sections 7, 13(1)(d)(i) read with section 13(2) of the Prevention of Corruption Act, 1988 is hereby set aside and he is acquitted from all the charges. The amount of fine, if deposited be refunded to the legal heirs of the appellants.