JUDGMENT : Instant criminal appeal filed under Section 378 of Cr.PC, lays challenge to the judgment of acquittal dated 5.8.2015, passed by the learned Special Judge, Hamirpur, District Hamirpur, H.P., in Corruption Case No. 01 of 2014 (Regd. No. 03/2014), whereby learned court below acquitted the accused of the charges under Section 7 and 13 (2) of the Prevention of Corruption Act, 1988 (in short the “Act” ), by extending him benefit of doubt. 2. Briefly stated facts of the case as emerge from the record are that complainant Prakash Chand made a written report to Dy.SP alleging therein that one Sh. Kultar Singh, Resident of Village Adarsh Nagar, Tehsil Nadaun, had given one application against him on 13.1.2013, in which the accused, the then police Sub-Inspector, PS Nadaun was appointed as Investigating Officer. He alleged that on 28.3.2013 at about 8:00pm, accused called him in the house of one Roshan Lal at Village Lahar and claimed that case has been registered against him and he should get the anticipatory bail, otherwise he will put him behind the bars. Complainant alleged that on 4.4.2013, he was granted anticipatory bail by the court of Sessions Hamirpur. Complainant alleged that after his having granted anticipatory bail, accused repeatedly called him on one pretext or the other. He alleged that accused proclaimed that he has been booked under serious sections of law and case will prolong for four years and he will have to spend Rs.40,000/- to 50,000/-. Complainant alleged that accused told him that in case he wants favour, he should pay sum of Rs. 10,000/- as bribe. Complainant alleged that on 7.4.2013, accused gave a missed-call from his No. 9816028178, but he did not respond and as such, he sent home guard personnel to his house on 8.4.2013. He alleged that accused again made a telephone call on the landline No. 236241 at the house of the Pradhan asking about the whereabouts of the complainant and then made telephonic call on 98827 53433. He alleged that accused made a call on landline No. 236601, which was attended by aged lady employed by him at his house. Complainant alleged that on 9.4.2013, accused had asked him at Nadaun to arrange for the money and provide alternative cell number and as such, he gave contact number of his son. He alleged that accused made a call on landline No. 236601, which was attended by aged lady employed by him at his house. Complainant alleged that on 9.4.2013, accused had asked him at Nadaun to arrange for the money and provide alternative cell number and as such, he gave contact number of his son. Complainant alleged that accused also gave telephonic call to his son on cell phone No. 94593- 30201. Complainant alleged that on 18.4.2013, he alongwith his son had come to Nadaun on his bike and accused was sitting in the hut of Baba. Accused stopped him and threatened that he will get his anticipatory bail cancelled in case he does not pay the bribe money. On 23.4.2013, complainant addressed a written application to the DYSP SV & ACB, Hamirpur, making therein complaint of bribe being demanded by the accused. After receipt of the written communication, DYSP chalked out a plan to catch the accused red handed and requested Deputy Commissioner, Hamirpur to provide the independent witnesses, upon which Sh. Anupam Kumar, District Revenue Officer, Hamirpur and Sh. Totu Ram, Senior Assistant DRDA Office Hamirpur were deputed. The pretrap exercise was done and complainant was given currency of Rs. 8,000/- of the different denomination, which were treated with phenolphthalein powder and from the trap kit, sodium carbonate power was also made available. During pre-trap exercise, the solution of sodium carbonate power was prepared and Sh. Anumap Kumar DRO was asked to dip the right hand finger into the solution, but the colour of the water remained natural just like water. Thereafter. The treated currency notes were touched by Sh. Anupam Kumar with his right hand finger and then dipped the finger into solution of sodium carbonate and its colour turned pink. During the pre-trap exercise, the members of the trap party were made to understand the procedure to be followed by them in the event of money being recovered from the pocket of the accused. After completion of necessary formalities before laying the trap, police party sent the complainant alongwith sum of Rs. 8,000/- treated with phenolphthalein powder/sodium carbonate powder with the shadow witness Anupam Kumar. On 23.4.2013, trap party rushed towards the main gate of the DC Office and spreaded in different directions. Complainant alongwith independent witnesses entered the canteen of the DC office, where allegedly, the accused was in police uniform. 8,000/- treated with phenolphthalein powder/sodium carbonate powder with the shadow witness Anupam Kumar. On 23.4.2013, trap party rushed towards the main gate of the DC Office and spreaded in different directions. Complainant alongwith independent witnesses entered the canteen of the DC office, where allegedly, the accused was in police uniform. As per the complainant, he and accused rushed towards the Gandhi Chowk and trap party followed them in the different directions and in front of the shop of Sh. Naresh Katna, complainant parkash Chand and accused talked with each others. Accused accepted something from the complainant and put the same in the left side of the pocket of his pant. On this, the complainant gave a signal to the shadow witness and then witnesses Inspector Sohan Lal, HC Jagdish chand, HHC Kamlesh Kumar and Constable Ram Pal reached the spot, who immediately confessed his mistake and took out the bribe money from the pocket of his pant and threw it on the road. Police party in presence of the independent witnesses prepared the solution of sodium carbonate and thereafter accused was asked to dip his left hand fingers into the solution, on which colour of the solution turned into pink. Hand wash of the accused was taken separately in a nip and sealed with seal impression H and thereafter, Sh. Anupam Kumar, DRO, was asked to pick up the thrown treated currency notes from the road and its numbers matched with the numbers noted in pre-trap exercise memo. Currency notes of Rs. 8,000/- were put in an envelope and then in a parcel were sealed with seal Impression H. The accused was taken to the DC Office Canteen, where he was asked to change his costume. A glass was arranged and solution of sodium carbonate was prepared and its colour remained natural like water. Then left pocket of the pant of the accused was dipped in the solution and its colour turned pink. Thereafter, the solution as put in a separate nip and slip by inscribing “pocket wash” was affixed on the nip and the nip was put in a parcel and sealed with seal impression T. Pant of the accused was also sealed in a cloth parcel with seal impression X and taken into possession vide memos. 3. Thereafter, the solution as put in a separate nip and slip by inscribing “pocket wash” was affixed on the nip and the nip was put in a parcel and sealed with seal impression T. Pant of the accused was also sealed in a cloth parcel with seal impression X and taken into possession vide memos. 3. During investigation solution i.e. hand wash of the accused and that of the pocket wash were got analyzed from the Deputy Director RFSL Mandi and the RFSL opined the traces of phenolphthalein powder and sodium carbonate in the contents of parcels P/1 and P/2. CDR of mobile No. 98160-28178 of the accused were obtained alongwith the prints of different dates. It was found that accused was in touch with the complainant. The mobile was found in the name of one Rajesh Kumar resident of Mahal Mataur, District Kangra, but it was established that accused used to operate such mobile. After completion of the investigation, police presented challan in the competent court of law, who being satisfied that prima facie case exists against the accused framed charges against him under Sections 7 and 13(2) of the Act, to which he pleaded not guilty and claimed trial. 4. Prosecution with a view to prove its case, examined as many as 26 witnesses and accused also produced three witnesses in his defence. In his statement recorded under Section 313 Cr.PC., he denied the incriminating evidence put against him and claimed that he has been falsely implicated in the case by the complainant, against whom, he has registered case No. 29/13, in terms of order passed by the learned Chief Judicial Magistrate under Section 156(3) of the Cr.PC. He stated that in the statement recorded under Section 313 Cr.PC that preliminary inquiry of the said case was already conducted by the vigilance department and it was held that no cognizable offence is made out against the complainant and closure of the case was recommended. He stated that in the statement recorded under Section 313 Cr.PC that preliminary inquiry of the said case was already conducted by the vigilance department and it was held that no cognizable offence is made out against the complainant and closure of the case was recommended. He stated that vigilance department was of the view that amount which was misappropriated was already deposited by the complainant and as such, complainant was time and again insisting him to close the case as vigilance department had already conducted inquiry and recommended for closure of the case and he should not try to go against the Vigilance Department, otherwise he will have to face the consequences, but he refused to oblige the complainant because as per the investigation, prima-facie case was fully made out against the complainant that he misappropriated amount of Rs. 52900/-. 5. Learned trial court on the basis of evidence collected on record held the accused not guilty of having committed offence punishable under Sections 7 and 13(2) of the Act and as such, acquitted him by giving the benefit of doubt. In the aforesaid background, State has approached this court in the instant proceedings, praying therein conviction of the accused after setting aside the judgment of acquittal and order of sentence recorded by the court below. 6. I have heard the learned counsel for the parties and gone the records of the case. 7. Having heard learned counsel for the parties and perused evidence, be it ocular or documentary, led on record by the respective parties vis-à-vis reasoning assigned in the judgment passed by the learned court below, this Court is not persuaded to agree with Mr. Sudhir Bhatnagar, learned Additional Advocate General that court below has failed to appreciate the evidence in its right perspective, rather this court finds that court below has dealt with each and every aspect of the matter very meticulously, whereby it rightly acquitted the accused by extending benefit of doubt. It is not in dispute that complainant Parkash Chand expired during the trial that too before recording his statement, if any. Since at no point of time, prosecution was able to prove the demand of bribe, if any, by the accused, there was otherwise no reason for the court below to convict the accused under the aforesaid provisions of law. It is not in dispute that complainant Parkash Chand expired during the trial that too before recording his statement, if any. Since at no point of time, prosecution was able to prove the demand of bribe, if any, by the accused, there was otherwise no reason for the court below to convict the accused under the aforesaid provisions of law. Though prosecution with a view to prove demand of bribe placed heavy reliance upon the statement made by PW2 Surender Singh, who while deposing before the court below testified that accused met him as well as his father in uniform and threatened his father to get anticipatory bail granted by the court cancelled. Most importantly, this witness deposed that his father talked with the accused secretly and on return, told him that accused had demanded Rs. 10,000/- as bribe for securing the anticipatory bail to him. It is quite apparent from the deposition made by the aforesaid witness that at no point of time, accused made demand of bribe, if any, from his father in his presence, rather he came to be know about the factum with regard to demand of bribe by the accused from the subsequent disclosure made by his father to him and as such, learned trial court below rightly ignored version putforth by this witness being hearsay witness. Moreover, if the statement of this witness is perused in its entirety, it reveals that accused demanded sum of Rs. 10,000/- for securing anticipatory bail to his father. It is not understood that when accused was already on bail and the complainant was never arrested, where was the occasion for the accused to get the anticipatory bail in favour of the complainant. PW3 Smt. Chander Kali, who had allegedly received landline call from the accused, also not supported the case of the prosecution because she was unable to identify the person, who had called the complainant. Otherwise also, it has nowhere come in the version of the aforesaid witness that person on telephone call demanded bribe from the complainant. 8. PW6 Roshan Lal, Pradhan though stated that accused had come to his house in the uniform, but there is nothing in the statement with regard to demand of bribe, if any, made by the accused. Otherwise also, it has nowhere come in the version of the aforesaid witness that person on telephone call demanded bribe from the complainant. 8. PW6 Roshan Lal, Pradhan though stated that accused had come to his house in the uniform, but there is nothing in the statement with regard to demand of bribe, if any, made by the accused. Similarly PW7 Naresh Kumar, owner of shop in front of which, money was alleged taken by the accused, also not supported the case of the prosecution and as such, he was declared hostile. 9. PW15 Constable Sumit Kumar though deposed that he saw the accused throwing the money, but he did not see the accused accepting bribe from the complainant 10. PW21 Totu Ram and PW24 Anupam Kumar, PW17 HC Jagdish Kumar, PW18 HHC Kamlesh Kumar and others deposed that complainant Parkash Chand was told that money was settled to be given in the DC office canteen. They deposed that accused and deceased complainant had sat on the table in the DC Office canteen for some time, but money was not given to the accused by the complainant in the canteen. These witnesses deposed that accused came out of the canteen from the back door and proceeded towards Gandhi Chowk Main bazaar and handed over the bribe money to the accused in the market in broad day light. They also stated that there was hustle and bustle in that place, where accused being in the police uniform otherwise could not accept the bribe amount to the visibility of others. Aforesaid versions put forth by these witnesses came to be discarded by the court below for the reason that their versions appear to be unnatural because once as per them, complainant Prakash Chand had sat on the table in DC Office Canteen with the accused, where was the occasion for him to not to give the money to him in the canteen itself. Otherwise, it does not appear to be probable that person in uniform would accept the money in open instead of closed room i.e canteen. Leaving everything aside, none of the prosecution witnesses stated something specific with regard to demand of bribe, which is mandatory to bring case under the ambit of Section 7 of the Act. Otherwise, it does not appear to be probable that person in uniform would accept the money in open instead of closed room i.e canteen. Leaving everything aside, none of the prosecution witnesses stated something specific with regard to demand of bribe, which is mandatory to bring case under the ambit of Section 7 of the Act. If the important aspect of the demand of bribe alleged to have been made by the accused is not established, case of the prosecution is bound to fail. In the instant case, as has been taken note herein above, complainant could not appear in the witness box to make statement and as such, prosecution miserably failed to prove the demand. Though aforesaid lacuna was attempted to be filled up by the prosecution by bringing his son PW2 Surender Singh and PW3 Chanderkala in the witness box, but as has been discussed herein above, both the witnesses did not support the case of the prosecution as none of them had seen the accused demanding the bribe from the complainant, rather they acquired knowledge of demand of bribe by the accused from the complainant only, who never deposed such fact in the Court. Moreover, when complainant was not available for cross-examination, allegation, if any, made by him while giving application to the department with regard to demand of bribe by the accused is of no relevance and rightly came to be rejected. 11. Reliance is placed upon judgment passed by the Hon’ble Apex Court in T.K. Ramesh Kumar v. State Tr. Police Inspector, Bangalore, 2015 (3) Scale 248 (Criminal Appeal No. 331 of 2015 arising out of SLP (crl) No. 3565 of 2012, dated 18.2.2015, wherein Hon’ble Apex Court relying upon its previous judgments reiterated that to bring case in the ambit of Section 7, it is incumbent upon the prosecution to prove the demand and in case same is not established, case of the prosecution is bound to fail. Relevant paras of the afore judgment read as under: “8. With reference to the aforesaid legal rival contentions, we have heard the learned counsel for the parties at length with reference to the complaint, the oral evidence of PW-1 and PW-2 and Exhibits P-4 and P-6 to examine the correctness of the findings recorded by the first appellate court on the charges framed against the appellant are proved or not. With reference to the aforesaid legal rival contentions, we have heard the learned counsel for the parties at length with reference to the complaint, the oral evidence of PW-1 and PW-2 and Exhibits P-4 and P-6 to examine the correctness of the findings recorded by the first appellate court on the charges framed against the appellant are proved or not. Further, on a careful perusal of the entire material evidence on record, particularly Exhibit P-1 and evidence of PW-1 and PW-2 on the question of demand of illegal gratification alleged to have been made by the appellant with the complainant and his father, as required under Section 7 of the Act to constitute an offence under Section 13(1)(d) of the Act, is required to be established by the prosecution which is mandatory as held by this Court in catena of decisions. In this regard we have examined the correctness of the finding of the trial court recorded in its judgment. The trial court placed strong reliance upon the evidence of the prosecution, namely, Exhibit P-1, the complainant and oral evidence of PW-1 to record a finding on the question of demand of illegal gratification made with the complainant by the appellant, we have noticed in the complaint Exhibit P-1, which reads as follows: “...On 18.10.2003 we have paid Rs. 125 for Katha extract charges and when we i.e., my father and me met Mr. Ramesh he further demanded a sum of Rs. 2000 to give Katha Extract. Lastly it was settled for Rs. 1500/-.” The above allegations made in the complaint by the complainant, Exhibit P-1 read with the evidence of PW-1, who is examined in the case by the prosecution, has stated that application dated 18.10.2003 for issuance of Katha Extract submitted by his father shown to him at the time of his deposition, further he has categorically admitted in his evidence that the same was submitted by them in the office on 18.10.2003, which is marked as Exhibit D-2 and further he has answered in the cross-examination that he does not know whether the said application is required to be placed before the Manager for his initial. Further, it is elicited from his evidence that the application, Exhibit D-2, it can be seen that there are two initials underneath dated 20th October is written and further he has admitted in his evidence that he did not know whether the said application was forwarded to the accused on 21.10.2003 after signature of the Manager and Assistant Revenue Officer “A.R.O.” The said evidence is very crucial to testify the veracity of the evidence of PW-1. If PW-1 is not definite in his evidence that the appellant had received the application of his father for issuing Khata extract in respect of his property on 21.10.2003, both the trial court as well as the first appellate court failed to evaluate and re-appreciate the aforesaid important piece of evidence on record which is very material for the purpose of recording a finding on the important aspect of demand of illegal gratification alleged to have made by the appellant with the complainant and his father on 18.10.2003 which is mandatory to record the finding on the charge under Section 13(1)(d) of the Act. In our considered view, the said approach adopted both by the trial court and the appellate court is not only erroneous but also error in law and, therefore, the finding recorded on the above aspect of demand of illegal gratification made by the appellant with the complainant and his father cannot be sustained in law. Therefore, submission of learned senior counsel that the finding on the charges against the appellant is erroneous for the reason that demand of illegal gratification by the appellant, as required under Section 7 of the Act, with the complainant and his father for issuing Katha Certificate of the property is not established by the prosecution. His submission is well founded. The same must be accepted. In this regard it would be appropriate for this Court to refer to the decision of this Court in the case of Mukut Bihari & Anr. vs. State of Rajasthan, (2012) 11 SCC 642 , which reads thus: “11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. vs. State of Rajasthan, (2012) 11 SCC 642 , which reads thus: “11. The law on the issue is well settled that demand of illegal gratification is sine qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. 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. However, before 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. The complainant is an interested and partisan witness concerned with the success of the trap and his evidence must be tested in the same way as that of any other interested witness and in a proper case the court may look for independent corroboration before convicting the accused person.” If this important aspect of demand alleged to have made by the appellant with the complainant and with his father is not established then the other evidence of PW-2, PW-3 and PW-4 cannot be accepted for convicting the appellant for the aforesaid charges levelled against him. Further, as could be seen from the finding and reasons recorded in the impugned judgment by the appellate court, in our considered view, it has not re-appreciated the evidence on record properly which is very important aspect of the matter, which we have noticed to set aside the concurrent finding of the appellate court on the charges in the impugned judgment as the learned Judge of the appellate court has failed to apply his mind properly to the charges, material evidence on record, particularly Exhibit P1 and evidence of PW-1. As could be seen from Exhibit P-1 it is the case of complainant, PW-1 that the demand of illegal gratification from the complainant was made by the appellant in the presence of his father. He was a crucial witness to be examined in the case by the prosecution at the time of investigation, whose evidence is not recorded by the investigating officer. Not recording his statement by the Investigating Officer is fatal to the case of the prosecution for the reason that the evidence of PW-1 in the backdrop of the allegation made in the complaint and the material evidence elicited on behalf of the appellant makes it abundantly clear that there is material contradiction in the allegations made against the appellant in Exhibit P-1 and evidence of the PW-1, in his evidence. 9. In view of the above conclusion arrived at by us after careful perusal of the evidence on record and law on the important aspect of demand of illegal gratification made by the appellant must be proved and the concurrent findings recorded by the High Court, and the submission made by Mr. Rathupathy that there is minor discrepancy with regard to the averments made in the complaint and the evidence of PW-1 and the first charge framed by the learned Judge having regard to the nature of the allegation of illegal gratification, demand and acceptance of the same proved to be correct by the prosecution on the basis of phenolphthalein test to prove the acceptance of gratification money and recovery from the appellant, therefore, this Court need not interfere with the impugned judgment and order of the High Court. Therefore, the submission made by learned counsel on behalf of the State cannot be accepted by us as there is material contradiction and it is not minor discrepancy with regard to the complaint and the evidence on record, as urged by him. Reliance has been placed upon the decision of this Court in the case of B. Jayaraj vs. State of A.P., (2014) 13 SCC 55 , which reads thus:- “8.. there is no other evidence to prove that the accused had made any demand, the evidence of PW 1 and the contents of Ext.P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. (emphasis laid by this Court)” 12. Since in the case at hand, prosecution has miserably failed to prove the demand of bribe, if any, made by the accused, no illegality and infirmity can be said to have been committed by the court below while acquitting the accused by extending benefit of doubt. 13. Consequently, in view of the detailed discussion made herein above, there appears to be no illegality and infirmity in the judgment of acquittal recorded by the court below, which appears to have been passed on proper appreciation of facts as well as and as such, same is upheld. Present appeal fails and dismissed accordingly, being devoid of any merits.