JUDGMENT : K. SURENDER, J. 1. Since both the appeals are arising out of C.C. No. 40 of 2003, wherein A1 filed Criminal Appeal No. 484 of 2008 and A2 filed Criminal Appeal No. 428 of 2008, they are being heard together and disposed off by way of this Common Judgment. 2. For the sake of convenience, the appellants will be referred to as Accused Officers 1 and 2. Accused No. 1 (AO1) was the then Circle Inspector of Police and Accused No. 2 (AO2), was the then Sub-Inspector of Police working in the Dubbak Police Station. According to ACB, PW-1/de-facto complainant approached ACB and lodged complaint Ex.P15 on 04-02-2008, stating that his minor daughter was kidnapped. Accordingly, he gave application before Dubbak Police Station. AO-2 did not take any action even though Rs. 1000/- was paid and there was no progress in the investigation. PW-1 went around the police station several times, however, no attempts were made by the Accused Officers to trace out the daughter of PW-1. PW-1 also approached the Officer on Special Duty and narrated his grievance. She asked PW-1 to meet AO1. However, AO-1 demanded an amount of Rs. 50,000/- for the purpose of money to be spent on searching his daughter. PW-1 borrowed Rs. 5,000/- from PW-2 and gave it to AO-1. The daughter of PW-1 was later traced and sent for medical examination. On 04-05-2002, AO-1 counselled the boy with the whom PW-1s daughter eloped and advised to get them married after one year. Thereafter, AO-1 insisted for remaining amount of Rs. 40,000/- to be paid, failing which naxalite cases, will be framed against PW-1. AO-2 also called PW-1 and demanded bribe amount. When PW-1 informed that he had already paid Rs. 5,000/- to AO-1, AO-2 insisted that Rs. 5,000/- should also be paid to him. On 15-05-2002 after several attempts finally accused officers stated that Rs. 10,000/- has to be paid to AO-1 by the next day or day after and Rs. 5,000/- to AO-2. Aggrieved by the said demands of AO-1 and AO-2, the present complaint was filed. 3. On the basis of the complaint, the ACB laid a trap against accused officers on 16-05-2002 and the proceedings started at the 6.15 a.m. on the said date. The 1st mediators report Ex.P4 was drafted and the amount meant to be paid as bribe that is Rs. 10,000/- to AO-1, Rs. 3. On the basis of the complaint, the ACB laid a trap against accused officers on 16-05-2002 and the proceedings started at the 6.15 a.m. on the said date. The 1st mediators report Ex.P4 was drafted and the amount meant to be paid as bribe that is Rs. 10,000/- to AO-1, Rs. 5,000/- to AO-2 were separately put in the Baniyan pocket of PW-1. Thereafter, around 8.30 a.m. after completing all formalities, the trap party started from ACB office which included PWs. 1, 2, 3, 9 and 10. They reached the police station around 10.45 a.m. PW-1 and PW-2 went inside the police station around 11.00 A.M. Around 11.30 A.M. both PWs. 1 and 2 came out from the main gate and gave pre-arranged signal as instructed by the DSP. 4. The trap party after entered into the police station on seeing the signal. Sri K. Muralidhar, Inspector, apprehended AO-2 by holding his both hands after introducing himself as Inspector. PW-10, Investigating Officer introduced himself to AO-1, who started licking his fingers and entered into an argument with the ACB trap party and shouted at the ACB trap party that they are not from ACB and they will be shot as they are suspected to be naxalites and caught hold of collar of PW-10. Then PW-9 introduced himself as DSP and requested accused officers to not to intervene as they are discharging their official duties and accordingly asked accused officers to rinse their fingers in the sodium carbonate solution. The said solution turned into light pink colour mixed with purple/blue colour. The inner flaps of the pant right side pocket of AO-1 was subjected to sodium test which also yielded positive result. When AO-1 was asked to produce the amount, AO-1 denied having received any amount and did not produce any amount. AO-2 was also asked to rinse his fingers in the sodium carbonate solution which did not yield any result. However, AO-2 produced Rs. 5,000/- from his left side pocket which tallied with the numbers mentioned in first mediators report. PWs. 1 and 2 were examined during the post trap proceedings which were drafted in the police station under Ex.P8. After conclusion of proceedings, the investigation was handed over to PW-10. However, AO-2 produced Rs. 5,000/- from his left side pocket which tallied with the numbers mentioned in first mediators report. PWs. 1 and 2 were examined during the post trap proceedings which were drafted in the police station under Ex.P8. After conclusion of proceedings, the investigation was handed over to PW-10. PW-10 having concluded investigation filed charge sheet for the offence under sections 7 and 13 (1) (d) of Prevention of Corruption Act, 1988 (for short ‘the Act’) and accordingly charges were framed against AO1 and AO2 for demanding and accepting an amount of Rs. 10,000/- and Rs. 5,000/- respectively. 5. During the course of trial, the de facto complainant/PW-1 and PW-2, who is an accompanying witness, turned hostile to the prosecution case and they were cross-examined by the public prosecutor-ACB. 6. PW-1 even failed to identify accused officers in the court. During the course of cross examination, PW-1 stated that when he entered into the police station, the Sub- Inspector of Police was not available and a constable informed that S.I was getting his work done and he found Circle Inspector talking to some people, as such, he came out of the Police Station and gave pre-arranged signal. PW-1 further stated that he handed over small wad of currency notes to ACB officials and ran away from the spot. PW-1, however denied having given any amount to either AO1 or AO2 and also denied giving statement before the magistrate under the pressure of ACB officials. 7. PW-2 also turned hostile to the prosecution case. However, he identified AO-2. PW-2 did not admit that he entered the police station, but it was only PW-1 who entered into the Police Station. 8. PW-3, who is the mediator to the trap proceedings, stated the entire prosecution case regarding complaint, pre-trap and post-trap proceedings and also about the seizure of bribe amount from the accused officers and also amounts other than the trap amount. 9. Though, both the witnesses PWs. 1 and 2 turned hostile to the prosecution case and denied giving bribe to accused officers, the learned Special Judge, on the basis of the other circumstances found the accused officers guilty for the offences and accordingly convicted them as stated supra. 10. The learned counsel arguing on behalf of the accused officers submits as follows: (i) Both PWs. 1 and 2 turned hostile to the prosecution case and denied giving bribe to accused officers, the learned Special Judge, on the basis of the other circumstances found the accused officers guilty for the offences and accordingly convicted them as stated supra. 10. The learned counsel arguing on behalf of the accused officers submits as follows: (i) Both PWs. 1 and 2 turned hostile to the prosecution case, for which reason, the entire story of the prosecution is doubtful as demand is not proved. (ii) PW-1 specifically stated that he went inside the Police Station and handed over the amount to one constable. (iii) There was no recovery from AO-1 and there is no explanation regarding the said missing currency bribe amount of Rs. 10,000/- and only on the basis of testing positive, there cannot be any conviction, when there is no recovery. (iv) Though the colour of hands of AO2 did not yield positive results, however the prosecution has shown recovery of Rs. 5,000/- from his pocket. (v) The entire prosecution case becomes doubtful due to the above discrepancies and benefit of doubt has to be extended to the accused officers. (vi) AO-1 had denied receiving any amount from PW-1 at the very first instance during post trap proceedings. The entire case of the ACB that AO-1 had prevented the ACB personnel from discharging their official duties and a separate case was filed, however, the said case ended in a acquittal and no appeal is filed against the said acquittal. 11. In support of his contentions, he relied on the following judgments: (i) Suraj Mal vs. The State (Delhi Administration), 1979 (2) SCJ 516 wherein the Hon’ble Supreme Court held that mere recovery divorced from circumstances in which the bribe amount is paid, is not sufficient to convict the accused when the substantive evidence in the case was not available. (ii) P. Satyanarayana Murthy vs. District Inspector of Police, 2016 (1) ALT (Cri.) (SC) 160. (iii) B. Jayaraj vs. State of Andhra Pradesh, (2014) 13 SCC 55 in both the judgments, the Hon’ble Supreme Court held that proof of demand of illegal gratification is gravamen of an offence Under Section 7 and 13(1)(d) of the Act and in the absence of either of them, the charge should fail. (iii) B. Jayaraj vs. State of Andhra Pradesh, (2014) 13 SCC 55 in both the judgments, the Hon’ble Supreme Court held that proof of demand of illegal gratification is gravamen of an offence Under Section 7 and 13(1)(d) of the Act and in the absence of either of them, the charge should fail. Further, the Hon’ble Full Bench held that failure of the prosecution to prove the demand of illegal gratification would be fatal and mere recovery from the accused would not entail his conviction. (iv) A. Subair vs. State of Kerala, (2009) 6 SCC 587 : 2009 (3) Crimes (SC) 1 wherein mere recovery of currency notes will not be sufficient proof of demand and acceptance of bribe when the other evidence when looked into by the prosecution is either incorrect or not sufficient and it would be unsafe to rely upon such evidence. (v) State of Kerala vs. C.P. Rao, (2011) 6 SCC 450 and Sujit Biswas vs. State of Assam, 2013 (3) ALT (Cri.) (SC) 316 wherein the Hon’ble Supreme Court held that suspicion, however grave, cannot take the place of legal proof and there is much difference between “may be true” and “must be true.” (vi) Learned counsel while relying on the case of C.M. Girish Babu vs. CBI, Cochin, (2009) 3 SCC 779 High Court of Kerala argued that as per Section 20 of Prevention of Corruption Act, the burden on the accused is one of the preponderance of probability, wherein, the Hon’ble Supreme Court held as follows: “19. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused charged with the offence could rebut it either through the cross examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification. 20. The accused charged with the offence could rebut it either through the cross examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the Court that the prosecution has proved that the accused received the amount towards gratification. 20. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.” (vii) In N. Vijayakumar vs. State of Tamil Nadu, 2021 (1) Supreme 609 the Hon’ble Supreme Court held that mere recovery of currency notes from the accused officer in the absence of proof of demand for illegal gratification would result in the case against such accused officer not being proved. (viii) In K. Shanthamma vs. State of Telangana (Criminal Appeal No. 261 of 2022, dated 21.02.2022). (ix) In Mansukhlal Vithaldas Chauhan vs. State of Gujarat, 1997 (8) Supreme 178 . (x) Judgment of this Court in Criminal Appeal No. 71 of 2007, dated 15.11.2019. The gist of the arguments of the learned counsel for the appellants on the basis of above judgments is that unless the demand is proved, there cannot be any conviction on the basis of recovery made by the prosecution. Any benefit would go to the appellants and not the prosecution, as such, prayed for acquitting the accused officers. 12. On the other hand, the learned Special Public Prosecutor for ACB submits that the witnesses, PWs. 1 and 2 were won over and for the said reason of they being won over during the course of trial, would not mean that the appellants can be acquitted of the charge for demand and acceptance of bribe. The circumstances of the daughter of PW-1 missing complaint being filed and thereafter being searched by the accused officers was not disputed by the appellants, for which reason, the very basis for filing the complaint Ex.P1 is proved. Further, it is for the AO-1 to explain regarding Rs. 10,000/- and failure by the ACB officials to recover the said amount is of no consequence, since hands and inner lining pant pocket of AO-1 turned positive. Further, it is for the AO-1 to explain regarding Rs. 10,000/- and failure by the ACB officials to recover the said amount is of no consequence, since hands and inner lining pant pocket of AO-1 turned positive. Though the hands of AO-2 did not test positive for sodium carbonate solution, however, the amount of Rs. 5,000/- was recovered from his right side pant pocket, for which reason, both the appellants have to be found guilty for the reason of non-explanation of the said circumstances. The presumption has to be raised in favour of the prosecution, since the accused officers failed to discharge their burden even by preponderance of probability, the conviction recorded by the learned Special Judge cannot be reversed. In support of his contentions he relied on the following judgments: (i) Hazari Lal vs. State (Delhi Administration), (1980) 2 SCC 390 (ii) M. Narsinga Rao vs. State of A.P. (2001) 1 SCC 691 Wherein the Hon’ble Supreme Court has held that in the facts and circumstances, even though the de facto complainant turned hostile to the prosecution case, the court below had correctly convicted on the basis of the other evidence available. He further stated that judgments of the Hon’ble High Court in the case of P. Satyanarayana Murthy vs. District Inspector of Police’s case (supra), B. Jayaraj vs. State of Andhra Pradesh’s case (supra) were considered in the case of Neeraj Dutta vs. State (NCT of Delhi), (2019) 14 SCC 311 along with judgments of the Hon’ble Supreme Court in Hazari Lal vs. State (UT of Delhi)’s case, M. Narsinga Rao vs. State of A.P. case (supra). The Three Judge Bench of Supreme Court was pleased to refer the matter to a larger Bench to decide the question as follows: “The question whether in the absence of evidence of complainant/direct or primary evidence of demand of illegal gratification, is it not permissible to draw inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13 (1) (d) read with section 13 (2) of Prevention of Corruption Act, 1988 based on other evidence adduced by the prosecution.” 13. In the said circumstances, he submits that to determine the above question when a Larger Bench was constituted, the judgments of P. Satyanarayana Murthy’s case and B. Jayaraj’s case should not be considered until the disposal by the Hon’ble Larger Bench answers the said question. 14. In the said circumstances, he submits that to determine the above question when a Larger Bench was constituted, the judgments of P. Satyanarayana Murthy’s case and B. Jayaraj’s case should not be considered until the disposal by the Hon’ble Larger Bench answers the said question. 14. The learned Public Prosecutor further submits that the judgments in P. Satyanarayana Murthy’s case and B. Jayaraj’s case are per incuriam, for which reason, the decision of Hazari Lal’s case and M. Narsinga Rao’s case has to be considered and accordingly the appellants’ conviction should be maintained. 15. The learned Public Prosecutor also brought to the notice of this court regarding the meaning of Per Incuriam and also stated what is “International view” and “Indian Perspective” of Per Incuriam. The learned Public Prosecutor reiterates that the judgments rendered in B. Jayaraj’s case and P. Satyanarayana Murthy’s case shall not be considered while adjudicating the present appeal. 16. Before adverting to the contentions of the appellant, the arguments advanced by the learned Public Prosecutor for ACB has to be dealt with. He submits that in view of the reference to the Larger Bench in Neeraj Datta’s case, the finding in B. Jayaraj’s case and P. Satyanarayana Murthy’s case cannot be relied upon, is without any substance. In both the judgments and several other judgments delivered in the past, it has been consistently held by the Hon’ble Supreme Court right from Suraj Mal’s case in the year 1979 that mere recovery of money divorced from circumstances under which it is paid cannot lead to the conclusion of guilt. The said principle was followed in several other judgments subsequently by Supreme Court and High Courts. 17. The question which was referred to the Larger Bench is in fact in a way followed by High Courts and Hon’ble Supreme Court in all the judgments delivered till date by considering the other attending circumstances of a case and did not conclude only on the basis of hostility or otherwise of the defacto complainant. Though a complainant had stated about ‘demand’ and ‘acceptance’ of bribe, Courts have acquitted the accused for the reasons of (i) non-pendency of work (ii) false implication due to grudge or enmity (iii) Explanation given by accused about receiving bribe being correct/probable and on several other grounds. 18. Though a complainant had stated about ‘demand’ and ‘acceptance’ of bribe, Courts have acquitted the accused for the reasons of (i) non-pendency of work (ii) false implication due to grudge or enmity (iii) Explanation given by accused about receiving bribe being correct/probable and on several other grounds. 18. B. Jayaraj’s case, P. Satyanarayana’s case and also N. Vijayakumar’s case and every case was determined on the facts and circumstances of said case and there is no principle that is laid down to say that in the event of hostility by the de facto complainant, the accused has to be acquitted. In all the cases, the Hon’ble Supreme Court never held as a principle that without adverting to the other circumstances of the case, only on the basis of hostility, acquittal should be recorded. In all the cases, the circumstances were taken into consideration regarding the proof of demand, the other circumstances in support of either initial complaint made and the trap proceedings and further regarding the pendency of official work were all discussed and only thereafter judgments were delivered on the basis of peculiar facts and circumstances of each case. 19. Considering the principles laid down in all the above judgments, the cumulative effect of the judgments referred by the defence and the prosecution is that the appreciation in a trap case depends upon the facts narrated in each of those cases and the trustworthiness or the reliability of the witnesses has to be assessed before concluding: (i) whether demand was proved; (ii) whether acceptance was proved; (iii) whether there was any pending work; (iv) reasons for false implication. All these factors may be considered in the background of the reliability of prosecution and defense versions, on the basis of evidence on record. 20. In the present case the following factors have to be looked into: (i) PWs. 1 and 2 taking a total U-turn and stating that there was never any demand by the accused officers. (ii) PWs. 1 and 2 denied even meeting the accused officers on the date of trap in the police station. (iii) PWs. 1 and 2 stating that the amount was given to a constable and subsequently to another, who is one of the members of the trap party. (iv) Non-explanation of the bribe amount of Rs. 10,000/- that was paid and the prosecution insisting upon the court to assume that the said Rs. (iii) PWs. 1 and 2 stating that the amount was given to a constable and subsequently to another, who is one of the members of the trap party. (iv) Non-explanation of the bribe amount of Rs. 10,000/- that was paid and the prosecution insisting upon the court to assume that the said Rs. 10,000/- was bribe and the same was paid and the fate of Rs. 10,000/- bribe amount is not known. (v) Admittedly, the ACB Inspector who was part of the trap party catching hold of the hands of AO2 when they entered into the police station. 21. In the normal circumstances it is assumed that the witnesses are won over and they not supporting the case of prosecution would be at the instance of the accused only. However the fact of hostility cannot be said to be the result of influence by the accused officer only and the initial complaint being false one to implicate the accused, cannot be ruled out. The complainant disowning his earlier statement which was made at the time of complaint and trap, would give rise to a doubt to a Court, as to which version stated by the complainant before the Court or which was initially made is correct. 22. In the present facts and circumstances, admittedly, the complaint of PW-1 regarding his missing daughter was investigated and the daughter of the de facto complainant was brought back. Her medical examination was done and also her statement was recorded. When the missing complaint had been investigated and the daughter of PW-1 was returned back to him, the allegation that without paying any bribe amount, he would be implicated in false naxalite case is to be viewed with suspicion. However, when the events that are narrated through oral and documentary evidence collected during investigation would suggest that investigation into the complaint made by PW-1 regarding his daughter was complete. 23. The demand as mentioned in the complaint Ex.P15 was not corroborated by PW-1 during the course of trial. The complaint Ex.P.15 was not even confronted to either PWs. 1 or 2 during the course of their examination. In the said circumstances, the question of seeking any corroboration regarding demand by the accused officers, does not arise. 24. On the trap day also there is no evidence of any demand made by the accused officers for the reason of both PWs. 1 or 2 during the course of their examination. In the said circumstances, the question of seeking any corroboration regarding demand by the accused officers, does not arise. 24. On the trap day also there is no evidence of any demand made by the accused officers for the reason of both PWs. 1 and 2 denying even meeting the accused officers. 25. Coming to the recovery of the tainted currency, as already stated, the fate of Rs.10,000/- is not known nor explained by the prosecution except stating that AO-1 managed to smuggle out Rs. 10,000/-. The prosecution failed to explain as to how amount was smuggled out in the scenario which existed on the trap day. Further, the recovery of Rs. 5,000/- from AO2 pant pocket without the hands of AO2 being tested positive is also to be looked into with suspicion in the back ground of AO2’s hand being caught by Inspector, after entering the police station. Further, failure of proving any demand by the prosecution and also any pending work, recovery from AO2 becomes doubtful and such recovery which is not in consonance with the case of the prosecution on the day of trap, the same cannot be considered and the benefit of doubt shall be extended to the accused officers. 26. Unless the prosecution proved convincingly that there was a demand and subsequent acceptance, the burden does not shift to the accused under section 20 of the Act. The wording under section 20 of the Act is clear that when in any trial for an offence under Section 7 or 13(1)(d) of PC Act, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, it shall be presumed unless contrary is proved. From the said wordings under Section 20 of the Act, it is clear that initial burden of proving both the factors, i.e. demand and acceptance or such an agreement has to be proved initially. In the present facts and circumstances, the prosecution has failed to prove beyond reasonable doubt either any demand or acceptance by direct or circumstantial evidence, for which reason, the burden cannot be shifted on to the appellants. 27. In the present facts and circumstances, the prosecution has failed to prove beyond reasonable doubt either any demand or acceptance by direct or circumstantial evidence, for which reason, the burden cannot be shifted on to the appellants. 27. In the result, both Criminal Appeals are allowed and the conviction and sentence recorded by the learned Special Judge in Calendar Case No. 40 of 2003 on 19.03.2008 against the appellants for the offences punishable under Sections 7 and 13(1)(d) of Prevention of Corruption Act, 1988 are set aside. Since the AO1 and AO2 are on bails, their bail bonds shall stand cancelled. As a sequel thereto, miscellaneous applications, if any, pending in the appeals, shall stand closed.