JUDGMENT (Prayer: Criminal Appeal is filed under Section 374(2) of Criminal Procedure Code, praying to set aside the judgment of dated 30.11.2015 in S.C.No.5 of 2011 passed by the learned Special Judge/Chief Judicial Magistrate at Cuddalore.) 1.Convicted sole accused in Spl.C.C.No.5 of 2011 is the appellant herein. 2. This Criminal Appeal is filed challenging the judgment of conviction and sentence dated 30.11.2015 passed by the learned Special Judge/Chief Judicial Magistrate at Cuddalore in Spl.C.C.No.5 of 2011. 3. The case of the prosecution is as follows: (i) On 03.11.2010 at about 10.00 hrs at the Primary Health Centre, Kazhuthur, Tittagudi Taluk, Cuddalore District, the accused demanded the complainant-Govindasamy to pay a sum of Rs.1000/- as illegal gratification other than legal remuneration as a motive or reward for doing her official act of giving the Cheque for Rs.6000/- under Dr.Muthulakshmi Reddy Maternity Benefit Scheme to his daughter-in-law Sathya. When the de-facto complainant expressed his inability to give Rs.1000/-, the accused reduced and demanded Rs.800/- as illegal gratification from the said de-facto complainant. On 09.11.2010 at about 15.00 hrs, when the de-facto complainant contacted the accused through phone, the accused reiterated her earlier demand for herself, and thereby the complainant informed the accused that he will come to collect the cheque on 11.11.2010 after making a phone call. (ii) Pursuant to the aforesaid demand, on 11.11.2010 between 10.45 hrs and 10.55 hrs at Health Sub Centre, Pasar Village, the accused reiterated the said demand of Rs.800/- as gratification other than legal remuneration from V.Govindasamy in the presence of official witness S.Elangovan and obtained the same from him and hence the accused appears to have committed an offence punishable under Section 7 of the Prevention of Corruption Act, 1988. (iii) In the course of same transaction and at the same time and place, the accused being public servant, by corrupt and illegal means and abusing her official position obtained the above said sum of Rs.800/- as pecuniary advantage for herself from the said V.Govindasamy, under the circumstances stated above and hence the accused appears to have committed an offence punishable under Section 13(2) r/w 13(1)(d)(i) of the Prevention of Corruption Act, 1988. (iv) Accordingly, charges were framed under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, against the accused. The prosecution had examined PW1 to PW10 and Ex.P1 to P23 and M.O.1 to M.O.3 have been marked. (iv) Accordingly, charges were framed under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, against the accused. The prosecution had examined PW1 to PW10 and Ex.P1 to P23 and M.O.1 to M.O.3 have been marked. On the side of the accused, two witnesses were examined as D1 and D2 and Ex.D1 to Ex.D5 were marked. (v) On consideration of the oral and documentary evidence and also taking note of the defence projected in the 313 proceedings shown through DW1 and DW2, the learned Special Judge cum Chief Judicial Magistrate for cases under Prevention of Corruption Act, Cuddalore, has held that charges are proved and convicted the accused under Sections 7 and 13(2) r/w 13(1)(d)(i) of the Prevention of Corruption Act, 1988. Hence, the appeal. 4. Learned counsel Mr.Sankarasubbu, appearing on behalf of the sole accused would contend that the alleged demand of illegal gratification made by the appellant on 03.11.2010 and 09.11.2010 was not proved by the prosecution. The prosecution had not produced the phone call details alleged to have been made by the PW9 to the appellant. There is a contradiction in the statements of the witnesses PW2 and PW3 regarding the demand of bribe. 5. Per contra, the learned Government Advocate (Crl.Side) drew my attention to the evidence of PW3 that at the time of the trap proceedings, there was a demand by the accused and immediately after the trap proceedings, seizure mahazar has been prepared and chemical examination was also conducted. Thereafter, the accused was taken to her house and an house-search was conducted. Relying upon the evidence of PW3 that at the time of handing over the cheque, the accused made a demand about the money, he would contend that the demand of bribe by the accused to PW2 on the date of the trap was substantiated, according to the prosecution. Furthermore, he also drew my attention to the evidence regarding trap proceedings and handing over the cash to the accused. 6. After hearing the rival submissions and also on the perusal of the documents, this Court finds that the accused was working as a Village Health Nurse, Health Sub-Center, Pasar (Primary Health Center Kazhuthur) at the relevant point of time between 03.11.2010 to 11.11.2010. Admittedly, she is a public servant. PW9-Sathya is the daughter-in-law of the PW2- Govindasamy, the defacto complainant. After hearing the rival submissions and also on the perusal of the documents, this Court finds that the accused was working as a Village Health Nurse, Health Sub-Center, Pasar (Primary Health Center Kazhuthur) at the relevant point of time between 03.11.2010 to 11.11.2010. Admittedly, she is a public servant. PW9-Sathya is the daughter-in-law of the PW2- Govindasamy, the defacto complainant. While PW9 was pregnant, PW2 took PW9-Sathya to the accused for Pre-Natal diagnostic treatment in the Primary Health Center Kazuthur, where the accused was working as Village Health Nurse. 7. During PW9's advance stage of pregnancy, the accused herein alleged to have got signature of PW9 for the financial aid of Rs.6000/- under Dr.Muthulakshmi Reddy Maternity Benefit Scheme. In order to issue a cheque for Rs.6000/- to PW9 the accused alleged to have demanded Rs.1000/- as illegal gratification other than legal remuneration for the motive and reward for doing her official act of issuance of cheque Rs.6000/- and on bargaining the accused reduced and demanded Rs.800/-, when PW2 defacto complainant expressed his inability to pay Rs.1000/-. Again on 09.11.2010 at about 15.00 hours when the defacto complainant contacted the accused through phone, the accused reiterated her demand of Rs.800/-. 8. Thereafter, according to the case of the prosecution, PW2 had gone to the Vigilance and Anti-Corruption Police Station at Cuddalore lodged a complaint under on 10.11.2010 at 16.30 hours. The FIR came to be registered by PW11-N.Marichamy, the Inspector of Police, V&AC, Cuddalore. PW11 prepared a trap for the accused and he contacted two independent witnesses for the trap proceedings. He made a request to the DEO, Cuddalore, accordingly S.Elangovan (PW3) and K.Vanaja came from the office of DEO, Cuddalore and they were entrusted with task to be a witnesses for the trap proceedings. They both reached the office of Vigilance and Anti-Corruption at 6.00 hours on 11.11.2010. PW11 explained to the witnesses about the plan for trapping the accused. Then the defacto complainant PW2 and the official witnesses were mutually introduced. Thereafter, demonstration of Phenolphthalein test was done. Thereafter PW11 received a sum of Rs.800/- from PW2. The money so received from PW2 was smeared with Phenolphthalein powder and it was entrusted to PW2, with proper instructions to PW3 to note down the happenings carefully in the event demand and acceptance of bribe money by the accused in her office. Thereafter, demonstration of Phenolphthalein test was done. Thereafter PW11 received a sum of Rs.800/- from PW2. The money so received from PW2 was smeared with Phenolphthalein powder and it was entrusted to PW2, with proper instructions to PW3 to note down the happenings carefully in the event demand and acceptance of bribe money by the accused in her office. PW11 prepared entrustment Mahazar and the number of the currency notes were recorded. Thereafter, PW11 took PW2, PW3 and they were asked to meet the accused at health center Pasar. On the same day at about 10.45 am, PW2 and PW3 were asked to go to the office of the accused and to give the above tainted money if the accused demands for the same. 9. The PW11 and other police officials were hiding themselves, PW2 and PW3 went to the office of the accused, the accused have demanded and received Rs.800/- from PW2 to issue the cheque for Rs.6000/- in favour of PW9-Sathya. PW2 came out of the office gave pre-arranged signal. On noticing the signal, PW11 and other police officials rushed into the office of the accused. On seeing the police, according to PW11, the accused was nervous. PW11 conducted Phenolphthalein test on both the hands of the accused when the fingers of the both the hands of the accused were dipped into sodium carbonate solution, they turned into pink colour. 10. When PW11 enquired the accused about the money, she took out the tainted currency note from the trolley and handed over the same to PW11. PW11 in turn directed another official witness Vanaja to count the money and asked her to compare with the serial Number found in the entrustment Mahazar and it was found to be the same. During the said proceedings, PW11 collected the wash in two separate bottles and sealed the same. He arrested the accused, collected records from the office pertaining to issuance of cheque, collected the corresponding register, prepared recovery mahazar, prepared rough sketch, conducted search of the house of the accused, prepared search slip. No incriminating documents collected during the search of the house of the accused and the seized records were recovered under Form 95. The wash and the tainted currency notes were collected. Thereafter, the accused was brought to the police station by 6.30pm on 11.11.2010 and released on station bail. 11. No incriminating documents collected during the search of the house of the accused and the seized records were recovered under Form 95. The wash and the tainted currency notes were collected. Thereafter, the accused was brought to the police station by 6.30pm on 11.11.2010 and released on station bail. 11. Records reveals that the Government of Tamilnadu under Dr. Muthulakshmi Reddy Maternity Benefit scheme is offering Rs.6000/- for the pregnant women for which certain procedures have been laid down vide G.O.Ms.No.224 Health and Family Welfare Department dated 09.07.2008 wherein even without the proof of income, the said maternity benefit has been extended to economically poor pregnant woman and instead of income certificate a recommendation from the Village Health Nurse is sufficient and accordingly, passed the Government Order prescribing certain payment schedule that the 1st instalment of Rs.3,000/- to be paid on the 7th month of the pregnancy while the 2nd instalment of Rs.3,000/- will be after the delivery. 12. PW4-Dr.B.Kalaiselvi, PW5-Dr.R.Maheswari and PW6- Dr.KKavitha, are medical officers attached to the Primary Health Centre, Thozhuthur, who could depose about the process of application made by the beneficiary PW9-Sathya, to get maternity benefit under Dr.Muthulakshmi Reddy Maternity Benefit Scheme. 13. PW7-Krishnamurthy, Superintendent, Office of the Block Medical Officer, Kazhuthur, has deposed regarding the procedure for receipt of the application made by the PW9-Sathya, the beneficiary to avail the maternity benefit and PW8- Saraswathi, Village Health Nurse, Keezhorathur, was deposed regarding the taking of charge from the accused and she could speak that the cheque was not handed over to her by the accused. 14. According to the prosecution, the accused made demand on three occasions from the PW2. First demand was on 03.11.10 for giving the cheque to PW2 on behalf of the beneficiary [PW9]. Second demand was said to be on 09.11.2010 that was said to have been demanded over the phone when PW2 called the accused and the accused had reiterated the demand to come on 11.11.2010. As per the prosecution theory, on 10.11.2010 the PW2 lodged the complaint. As per the evidence of PW2, PW3 (Shadow witness) PW9-Sathya and PW11 Trap laying officer, on 11.11.2010, the accused during the trap proceedings demanded and accepted Rs.800/- as bribe around 10.45am. On the side of the defence, one Varadharajan, Panchayat Board President was examined as DW1 and DW2- Alagappan, is the private person in the village. 15. As per the evidence of PW2, PW3 (Shadow witness) PW9-Sathya and PW11 Trap laying officer, on 11.11.2010, the accused during the trap proceedings demanded and accepted Rs.800/- as bribe around 10.45am. On the side of the defence, one Varadharajan, Panchayat Board President was examined as DW1 and DW2- Alagappan, is the private person in the village. 15. The case of the defence is that both the accused and PW2 are living in the same street and known to each other for many years and the accused was in the habit of borrowing amount from him for the purpose of drinking and the accused being the resident of the same street known for years has borrowed Rs.800/- from Alamelu on behalf of PW2 and the PW2 under the guise of returning the amount, during the trap proceedings, he gave the money pretending it to be repayment of the loan borrowed from the accused. 16. The PW2-defacto complainant would depose that her daughter-inlaw was pregnant and was taking treatment in Rural Health Centre and the accused has put the vaccination and also examined her on the 4th and 7th month of her pregnancy. When they visited for 7th month pregnancy check up, the accused got the signature from his daughter-in-law [PW9] for the maternity benefit scheme of Rs.6000/- and also informed them that once she received the cheque, she would intimate them. 17. It is the further evidence of PW2 that on 08.10.2010, PW9 gave birth to girl baby. On 03.11.2010 when he went and met the accused regarding the cheque, the accused demanded a sum of Rs.1000/- and subsequently reduced to Rs.800/-. The 2nd demand was with regard to 09.11.10 at around 3.30pm. It was over the phone and the accused had told him to give the amount on 11.11.10 and hence, PW2 gave the complaint [Ex.P2]. 18. In this regard, the answer elicited in the cross examination of PW2, assumes significance. In the cross examination, he had categorically admitted that during the alleged first demand on 03.11.2010, no one was present. The alleged second demand on 09.11.10 was over phone. In his evidence he has deposed that and also admitted that the accused has refused to hand over the cheque granted in the name of the PW9 since as per the rules, the accused has said that cheque has to be given only to the beneficiary and not to anyone. The alleged second demand on 09.11.10 was over phone. In his evidence he has deposed that and also admitted that the accused has refused to hand over the cheque granted in the name of the PW9 since as per the rules, the accused has said that cheque has to be given only to the beneficiary and not to anyone. 19. In the cross examination, PW2 has deposed as follows: 20. The beneficiary under the scheme is PW9-Sathya. She in the chief examination had deposed that on 11.12.2009, she got married and during pregnancy she obtained necessary immunization card from the Health Nurse Umarani [accused] and she has also taken immunization during the 4th and 7th month of the pregnancy. It is the accused who had filled up the form and obtained her signature and the form signed by the PW9, is marked as Ex.D2. In the cross examination she had admitted that Translated version of the above: “... the accused did not demand any amount for such recommendation. It is correct to say that the sum of Rs.6,000/- would be given to me only if I sign..... ...PW2-Govidasamy has told me that he would often get hand loan from the accused Umarani for drinking alcohol... ...Through my father-in-law, I came to know that when he informed Santhosh that since, I had not affixed my signature, the accused has refused to give the cheque, Santhosh had told him that he have some known persons in Vigilance and Anti-Corruption Department and through them could get the cheque....But, my father-in-law used to borrow money.” 21. According to DW1, the PW2 has approached him for the cheque since the accused was not giving the cheque to him. On enquiry the accused told the DW1 that in the absence of beneficiary viz., PW9-Sathya, cheque will not be issued to her father-in-law viz., PW2 and the same was conveyed to him and the accused has already borrowed Rs.800/- from her and he is in the habit of borrowing money from the accused. Some days before, the accused had borrowed the amount from one Alamelu, for giving the same to PW2 as hand loan. In this regard, DW2-Alagappan had deposed that the accused has borrowed Rs.800/- from Alamelu and gave the loan to PW2- Govindasamy and the said Govindasamy has repaid the loan and also brought the police. 22. Some days before, the accused had borrowed the amount from one Alamelu, for giving the same to PW2 as hand loan. In this regard, DW2-Alagappan had deposed that the accused has borrowed Rs.800/- from Alamelu and gave the loan to PW2- Govindasamy and the said Govindasamy has repaid the loan and also brought the police. 22. From the answer elicited in the cross examination of the PW9 the beneficiary, her father-in-law PW2-Govindasamy often is in the habit of alcohol consumption and he used to borrow hand loan from the accused and the same has been told by PW2-Govindasamy to her and and also admitted in the cross examination that the PW2, her father-in-law had borrowed loan from the accused and also admitted that for the purpose of recommendation of the scheme amount, the accused has not demanded any amount from her and also stated that the accused is consistently refusing to hand over the cheque to the PW2 in the absence of the PW9 viz., the beneficiary and hence I find that the suggestive case of the defence that the PW2-defacto complainant is in the habit of borrowing money from the accused and 4 days prior to the incident in order to give hand loan to the PW2, the accused has borrowed the amount from one Alamelu and under the guise of repayment of the said hand loan, the PW2 has handed over the amount to the accused and the accused was under the impression that the PW2 was repaying the loan received from her, however, it was a trap proceedings. In the preceding paragraphs this Court has noted that none of the demand spoken to by the PW2 was proved in the manner known to law. 23. As stated supra, on 03.11.2010 it was demand in person and the evidence of PW2 alone will not stand as a proof, in view of the answer elicited in the cross examination that PW2 is in the habit of receiving hand loan from the accused. On 09.11.2010, the date of the 2nd demand, is said to be over phone and no positive evidence has been adduced by the prosecution to support their case. On the date of the trap proceedings viz., 11.11.2010 also PW2 came and went. On 09.11.2010, the date of the 2nd demand, is said to be over phone and no positive evidence has been adduced by the prosecution to support their case. On the date of the trap proceedings viz., 11.11.2010 also PW2 came and went. Only after the investigation officer has asked as to why you have not paid the amount to her, PW2 came back and gave the money and the accused appears to have received the amount as if it was the repayment of the hand loan received by the PW2 few days earlier, appears to be more probable. In the absence of any demand and acceptance the charge under Sections 7 and 13(2) of the prevention of Corruption Act, cannot be said to have been proved. 24. In a decision reported in CDJ 2006 Mad HC 2942 [Ramakrishna Vs. State rep. By Inspector of Police, DVAC, Chennai], this Court has observed as follows: 9....mere proof of receipt of the money by an accused in the absence of proof of demand and acceptance of money as illegal gratification will not be sufficient to establish the guilt of the accused in a corruption case. Recently, the Hon‘ble Supreme Court of India has held in T. Subramanian v. State of Tamil Nadu reported in (2006) 1 SCC (Cri.) 401 that: 'Mere proof of receipt of money by accused, in absence of proof of demand and acceptance of money as illegal gratification, not sufficient to establish guilt of accused - If accused offers reasonable and probable explanation based on evidence that the money was accepted by him, other than as an illegal gratification, accused would be entitled to acquittal'. 10. The Apex Court has also held in State of Tamil Nadu v. Krishnan & Anr. reported in VII (2000) SLT 266 that: 'the version of planting the amount by the prosecution witness is probalised coupled with the fact that the prosecution version of demand of bribe and the circumstances under which the said demand was made is suspect'. 11. Therefore the first and foremost ingredient to constitute the offence under the Prevention of Corruption Act is to prove the receipt of money as illegal gratification is the proof of demand made by the accused. Once the prosecution failed to prove the above said ingredient, in my considered view, the entire prosecution case falls into the ground. 16. 11. Therefore the first and foremost ingredient to constitute the offence under the Prevention of Corruption Act is to prove the receipt of money as illegal gratification is the proof of demand made by the accused. Once the prosecution failed to prove the above said ingredient, in my considered view, the entire prosecution case falls into the ground. 16. The Hon‘ble Supreme Court of India has held in Chaturdas Bhagwandas Patel v. State of Gujarat reported in AIR 1976 SC 1497 : (1976) 3 SCC 46 : 1976 L.W. (Crl.) 52 S.N. that: 'that the burden that rests on an accused to displace the statutory presumption that is raised under Section 4(1) of the Act, is not onerous as that cast on the prosecution to prove its case. But such burden has to be discharged, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability'. It is also equally well settled that in order to rebut the presumption contemplated and raised under Section 20 (1) of the Act, the accused can offer a reasonable and probable explanation and the accused is not required to establish his defense by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probabilities. 17. The Hon‘ble Supreme Court of India has held in Punjabrao v. State of Maharashtra reported in AIR 2002 SC 486 : (2004) SCC (CRI.) 1130 that, 'It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether the explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability'. Therefore, by keeping the above said principles of law laid down by the Hon‘ble Supreme Court of India, this Court has to scan and scrutinise the entire evidence adduced by the prosecution in order to find out whether the prosecution has proved its case beyond reasonable doubt. 18. Therefore, by keeping the above said principles of law laid down by the Hon‘ble Supreme Court of India, this Court has to scan and scrutinise the entire evidence adduced by the prosecution in order to find out whether the prosecution has proved its case beyond reasonable doubt. 18. It is also held by the Hon‘ble Supreme Court of India in Punjabrao v. State of Maharashtra reported in (2004) SCC (Cri) 1130: 'It is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. It is, of course, true as observed by the High Court that when the investigating officer seized the amount from the accused Patwari, he did not offer the explanation that it was in relation to a collection of loan, but that by itself would not be sufficient to throw away the explanation offered by the accused in his statement under Section 313 when such explanation could beheld to be reasonable under the facts and circumstances of the case....” Therefore I am of the considered view that the accused in this case, has come forward with a reasonable and probable explanation and rebutted the presumption contemplated under Section 20 (I) of the Act by eliciting answers during the cross-examination from the witneses by placing reliance on the circumstances available on record and also by establishing his theory of defence by preponderance of probability. 25. At this juncture, it is also worthwhile to refer to Paragraph No.11 of the decision of the Supreme Court in 2022 (4) SCC 574 in K.Shanthamma Vs. State of Telengana, which reads as follows: “In P.Satyanarayana Murthy v. District Inspector of Police, State of Andhra Pradesh and another, [(2016) 1 SCC (Cri) 11], this Court has summarised the well-settled law on the subject in paragraph 23 which reads thus: “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 therefor, would fail. 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 therefor, 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 Section 7 or 13 of the Act would not entail his conviction thereunder.” (emphasis added). 26. In the above judgment, it is held that offence under Sec.7 relating to public servants taking bribe requires proof of: (a) demand of illegal gratification, and (b) acceptance thereof – Proof of demand of bribe by public servant and its acceptance by him, both are a sine qua non for establishing offence under Section 7. 27. It is to be stated that only if the demand as alleged is established, the offence could be complete to call for passing of sentence on the accused. In the instant case, the receipt of amount was established but the demand was not established. Only if both demand and acceptance are established, the offence could complete so as to call for passing of sentence of the accused. 28. Even with regard to the receipt of the money, an explanation has been offered by the accused that she had received the money as the PW2 had given the amount under the pretext of repayment of earlier hand loan received by him. 28. Even with regard to the receipt of the money, an explanation has been offered by the accused that she had received the money as the PW2 had given the amount under the pretext of repayment of earlier hand loan received by him. With regard to the borrowal of hand loan from the accused by the PW2, it was categorically admitted by none other than his own daughter-in- law [PW9], who is the beneficiary under the maternity benefit scheme lends support to the defence theory and hence, I find that in view of the answer elicited from the cross examination of PW2 and PW9 and chief examination of DW1 and DW2, I find that the defence has successfully demonstrated and offered a reasonable and palpable explanation and has also established by preponderance of probability, besides, as the prosecution has failed to prove the demand and acceptance, the decisions referred above are squarely applicable to the facts and circumstances of the case to hold that the prosecution has failed to prove the demand of illegal gratification and mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof de hors the proof of demand and would not be sufficient to bring home the charge under these two sections. 29. Therefore, in view of the admission in the cross examination of PW2 and PW9 which is duly supported by the evidence of DW1 and DW2 , I find that the prosecution failed to prove the charges as prescribed in the above judgment of the Apex Court. The defence has probabilised her case and established the same by preponderance of probability as discussed supra. Hence, the conviction and sentence passed by the learned Special Judge cum Chief Judicial Magistrate, Cuddalore in Special Case No.5 of 2011, dated 30.11.2015, as against the accused/appellant herein is set aside and the appellant/accused is acquitted of all charges. Fine amount is ordered to be refunded. Bail bond stands cancelled. The Criminal Appeal is allowed.