JUDGMENT : 1. This is an appeal filed under Section 374 of the Code of Criminal Procedure against the conviction. The appellant is convicted under Section 7 and under Section 13(1)(d) read with Section 13(2) of Act 1988 and thereby the appellant is sentenced to suffer rigorous imprisonment for three years and to pay fine amount of Rs. 5000/- in respect of offence under Section 7 of the Act 1988 and rigorous imprisonment of three years and to pay fine amount of Rs. 5000/- in respect of offence under Section 13(1)(d) read with Section 13(2) of the Act of 1988 vide judgment and order dated 13/08/2012. 2. It is the case of the prosecution that the complainant/ P.W.1- Dr. D.D. Marakwar was the registered owner of Tata Sumo Vehicle bearing Registration No. MH-39/A-69. The said vehicle was insured with United India Insurance Company Limited, Gadchiroli Branch under Policy No. 16160/31/33/01022/99-2000, having validity w.e.f. 07/04/2009 to midnight of 06/04/2000. 3. It is further submitted that the said vehicle met with an accident on 06/04/2000, and it was completely damaged. Thereupon, an insurance claim was submitted to the Insurance Company and on survey, it was declared that the said vehicle is in the category of “net loss” for Rs. 2,50,000/-. 4. The salvage of the damaged vehicle was disposed off for an amount of Rs.1,00,000/- and said amount was paid to complainant and balance amount of Rs.1,50,000/- towards the settlement of the insurance claim was to be paid to the complainant by the Insurance Company. 5. It is the further case of the prosecution that for the said claim, the complainant visited the office of the Insurance Company at Gadchiroli and met the accused several times, during the month of July and August-2000 and requested him to make payment of the balance amount. 6. It is further stated that, PW-1 accompanied with his son- Amol, met the accused in his office at Gadchiroli and requested him to make the balance payment of Rs. 1,50,000/-. On this, the accused told him and his son that, papers pertaining to their claims have been received by him from the Divisional Office, Nagpur, but he will issue the cheque of Rs. 1,50,000/- if he is given Rs. 8,000/- as a bribe. The accused also told PW-1 to meet him on 29/09/2000 at Armori along with the bribe amount of Rs. 1,50,000/- if he is given Rs. 8,000/- as a bribe. The accused also told PW-1 to meet him on 29/09/2000 at Armori along with the bribe amount of Rs. 8000/- and he would collect the same while going to Nagpur. 7. The complainant had no desire to give bribe of Rs.8000/- to accused and therefore, he lodged a complaint dated 29/09/2000 with the Superintendent of Police, CBI, Nagpur. The complainant, further stated in his complaint that he had no financial transactions or any enmity with the accused and requested the authority to take the necessary action as per the law. Thereupon an offence vide crime No. RCNAG2000A0007, dated 29/09/2000 was registered by Deputy Superintendent of Police-CBI, Nagpur at 11.30 a.m. and investigation was handed over to Subhashchandra Jiani, the Police Inspector – CBI, Nagpur PW-3. 8. Thereafter, the said officer took preparatory steps to lay a trap to intercept the accused and set up trap team. Ten currency notes of Rs. 500/- each denomination and 30 currency notes of Rs.100/- each i.e. total Rs. 8000/- furnished by complainant, were smeared with phenolphthalein powder and handed over to the complainant. 9. Thereupon, the complainant and the team started towards Armori by Taxi from Nagpur. After reaching Armori they stopped behind PHC near residence of complainant. After some time son of the complainant-Amol had come there. Thereafter, they have started towards Armori and reached at 6.30 p.m. The team reached to the spot i.e. Pan Shop on main road of Bhagat Singh Chowk, Armori where they waited for arrival of accused. 10. At about 7.10 p.m., the accused came from Gadchiroli side in his Maruti Car and he stopped near Pan Shop. At that time, son of the complainant Amol and Nandanwar–shadow witness (PW-2) were along with the complainant. 11. The other raiding party remained in nearby area. 12. At about 7.10 p.m. vehicle of the accused came and stopped on that spot. The son of the complainant met the accused. Thereafter, the complainant went towards accused and offered Namaste. The complainant asked the accused, whether he has brought his cheque. The accused informed PW-1 that the process in respect of issuance of cheque is going on and some papers are yet to be completed. The accused told PW-1 that his work will be done and asked whether he has brought the amount. The complainant replied that he had brought it. The accused informed PW-1 that the process in respect of issuance of cheque is going on and some papers are yet to be completed. The accused told PW-1 that his work will be done and asked whether he has brought the amount. The complainant replied that he had brought it. Thereafter, the complainant removed the amount from his left side pocket by his right hand and gave it to the accused. The accused has accepted it and counted by both the hands and kept it in the right pant pocket. At that time, Shri Nandanwar-shadow witness (PW-2) was standing with the complainant. 13. Thereupon, Shri Nandanwar(PW-2) gave predetermined signal to raiding party. The raiding party rushed there. They asked Nandanwar (PW-2)who has accepted the amount. PW-2 told that accused has accepted the amount and kept in his right pant pocket. Thereafter, the said amount was removed and notes were tallied with the numbers noted earlier. It were the same numbers. The said notes were sealed and thereafter both the hands of the accused were tested in the liquid. The colour of both the hands were changed. 14. The prosecution thereafter, seized articles Article A to H and referred it for chemical analysis. 15. On receiving chemical analyzers report, the case papers were sent to competent authority of Insurance Company, Chennai on 15/12/2000. On 23/03/2001, a sanction was received and thereafter, the charge-sheet against the accused was filed. 16. Thereupon, the learned Special Judge framed the charges against accused for the offence punishable under Section 7 and for the offence punishable under section 13(1)(d) read with Section 13(2) of the Act of 1988, and after explaining the contents thereof, recorded the statement of the accused. 17. The accused pleaded not guilty and claimed to be tried. Subsequently, on 18/02/2009, the charge was amended and it was explained and fresh statements of the accused were recorded. The accused again pleaded not guilty and claimed to be tried. The defence of the accused is total denial and false implication in prosecution case. 18. In order to bring home the guilt of the accused, the prosecution has examined in all 4 witnesses- the complainant – Dr. The accused again pleaded not guilty and claimed to be tried. The defence of the accused is total denial and false implication in prosecution case. 18. In order to bring home the guilt of the accused, the prosecution has examined in all 4 witnesses- the complainant – Dr. D.D. Markarwar as PW-1, Shri A.M. Nandanwar the Panch No.1/Shadow Witness as PW-2, Shri Subhashchandra Jiani, the then Police Inspector, CBI, Nagpur, the investigating officer, who led trap on accused as PW-3 and Shri H.B. Bajpai the then Police Inspector, CBI, Nagpur another investigating officer, who secured Chemical Analyser Report, sanction order towards prosecution of accused and filed charge-sheet, as PW-4. 19. The learned Special Judge after marshaling and scrutinizing the oral as well as documentary evidence, convicted the appellant, under Section 7 and under Section 13(1)(d) read with Section 13(2) of Act 1988 and thereby the appellant is sentenced to suffer rigorous imprisonment for three years and to pay fine amount of Rs. 5000/- in respect of offence under Section 7 of the Act 1988 and rigorous imprisonment of three years and to pay fine amount of Rs. 5000/- in respect of offence under Section 13(1)(d) read with Section 13(2) of the Act of 1988, vide judgment and order dated 13/08/2012. The said judgment and order dated 13/08/2012 passed by the Special Judge, Gadchiroli in Special (ACB) Case No. 1/2001, is under challenged in this appeal. 20. I have heard the learned counsel for the respective parties. 21. Shri R.P. Joshi, learned counsel for the appellant submits that the learned Special Court erred in convicting the appellant in absence of any cogent and reliable evidence on the point of demand and acceptance of alleged illegal gratification. 22. It is submitted that mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7 or 13(1)(d) or 13(2) of the Act of 1982. It is submitted that demand and acceptance of illegal gratification is sine qua non to attract the provisions of Section 7, 13(1)(d) as well for the presumption under Section 20 of the Act of 1988. It is submitted that demand and acceptance of illegal gratification is sine qua non to attract the provisions of Section 7, 13(1)(d) as well for the presumption under Section 20 of the Act of 1988. For this purpose, he has placed reliance on the judgments of the Hon’ble Supreme Court of India in the cases of State of Punjab vs. Madan Mohan Lal Verma, 2013 (14) SCC 153 , B. Jayaraj vs. State of Andhra Pradesh, (2014) 13 SCC 55 , C. Sukumaran vs. State of Kerala, (2015) 11 SCC 314 , N. Vijaykumar vs. State of Tamil Nadu, (2021) 3 SCC 687 , and K. Shanthamma vs. the State of Telangana (Cri. Appeal No. 261/2022, dt. 21.02.2022). 23. Shri R.P. Joshi, learned counsel for the appellant would submit that the burden to prove accusations against the appellant for the offence punishable under Sections 7, 13(1)(d) of the Act of 1988 with regard to the acceptance of illegal gratification lies on the prosecution. It is submitted that the prosecution did not examine material witnesses like son of the complainant and the two constables namely P.C. Abdul Salam and P.C. S.M. Wath who caught hold both the hands of the appellant at the time of the raid. 24. He has drawn attention of this Court to deposition of PW-1 who has not stated the time, date and place of first demand in the deposition. It is pointed out that similarly no details are given about the spot. Thus, he submits that the prosecution has failed to prove first demand. 25. It is further submitted that the query alleged to have made by the accused of the money being brought or not, does not constitute the demand. It is submitted that mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, de hors the proof of demand, ipso facto would does not sufficient to bring home the offence under the provisions of Act of 1988.For this purpose, he has placed reliance on the judgments of the Hon’ble Supreme Court of India in the case of Mukhtiar Singh vs. State of Punjab, (2017) 8 SCC 136 . 26. 26. Shri Joshi, learned counsel for the appellant further submits that it is not the case of the prosecution that the appellant was the sanctioning authority of insurance claim and the work of PW-1 was pending with the appellant on the date of trap. Thus, it is submitted that it cannot be said that the amount allegedly paid to the appellant was towards illegal gratification or bribe. 27. He further argues that the prosecution has not produced any document, referring the seized articles for chemical examination, on record. It is submitted that what is sent by the police to chemical analyser has to be established beyond reasonable doubt. It is further submitted that tainted currency notes were not sent for chemical analysis and in absence of such evidence, it cannot be said that the offence was proved beyond doubt against the appellant. For this purpose, he has placed reliance on the judgment in the case of Calcutta High Court Ofel Mollah vs. the Kingempower, 1913 SCC Online Calcutta 220, the Lahore High Court in the case of Kala S/o. Nek Mohd. And another vs. Emperor, AIR 1944 Lahore 206, State vs. Motia and others of Rajasthan High Court, 1955 Cr.L.J. 835, the Lahore High Court in the case of Mohammad Din and another vs. Empower, AIR 1926 Lahore 1979, State of Bombay vs. Rusy Mistry and another, AIR 1960 SC 391 , Lalchand Cheddilal Yadav vs. State of Maharashtra, 2000 (3) Mh.L.J. 438 , Vikram Reddy vs. State of Goa, 2002 SCC Online Bom 81, State of Rajasthan vs. Gurmail Singh, (2005) 3 SCC 59 , Shri Ganga Kumar Shrivastav vs. State of Bihar, (2005) 6 SCC 211 , Jarnail Singh vs. State of Punjab, (2011) 3 SCC 521 , Radhye Shyam vs. State of Rajasthan, (2014) 5 SCC 389 , Pradeep Dhondopant Nagpurkar vs. State of Maharashtra, 2015 All MR (Cri) 594, Jagannath Nivrutti Jadhav vs. State of Maharashtra, 2017 ALL MR (Cri.) 3776, State of U.P. vs. Hansraj @ Hansu, 2018 ALL SCR (Cri) 1550. 28. It is further argued that there was no verification of demand before laying the trap. Thus, according to him in absence of any such verification of demand of bribe before the trap, vitiates the trap. 29. 28. It is further argued that there was no verification of demand before laying the trap. Thus, according to him in absence of any such verification of demand of bribe before the trap, vitiates the trap. 29. Shri Joshi learned counsel for the appellant submitted that after reaching Armori, the raiding party waited for the accused at Pan-shop and after the trap, they took the accused to photo studio and therefrom to the guest house. It is submitted that no panchanama was drawn at the Photo Studio and also Pan Shop. However, panchanama was drawn at the guest house. 30. Shri Joshi learned counsel for the appellant further submits that the prosecution has placed reliance upon the FIR to bring guilt home against the accused whereas the FIR is not a substantive piece of evidence and FIR cannot be relied upon. It is submitted that it can be used to corroborate the evidence of the person lodging the same, but the FIR cannot be used as substantial evidence corroborating the statement of the party. For this purpose, he has placed reliance on the judgment of the Hon’ble Supreme Court of India in the case of Baldev Singh vs. State of Punjab, (1990) 4 SCC 692 and C. Magesh and others vs. State of Karnataka, (2010) 5 SCC 645 . 31. He has further argued that there is inconsistency in evidence of the prosecution witnesses. It is pointed out that there iscontrary evidence of the PW-1as against the PW-2 and PW-3 as to who has taken out the tainted currency notes from the pant pocket of the accused. It is pointed out that the PW-1 deposed that the amount was removed by Nandanwar PW-2. The PW-2 says that he did not remove money from pant pocket of the accused. PW-3 says Pancha-2 Pande recovered the amount from right pant packet of the accused. 32. It is further pointed out that it has come in the evidence that the constable caught hold of the hands of the accused and then the entire raiding party moved from the Pan Shop to the Photo Studio across the road. Thus, possibility of mischief of smearing phenolphthalein powder in between the Pan Shop and Photo Studio, on the fingers of the accused, cannot be ruled out. 33. Thus, possibility of mischief of smearing phenolphthalein powder in between the Pan Shop and Photo Studio, on the fingers of the accused, cannot be ruled out. 33. It is further submitted that there is no evidence of how the Muddemal Property was dealt with by police from 29/09/2000 till the investigation was handed over to PW-4 Shri Hariprasad Vajpayee and till it was allegedly received by Chemical Analyser. It is submitted that Malkhana Register entries were not produce. 34. On the other hand Ms Mugdha Chandurkar, learned counsel for the CBI supports the impugned judgment and submits that the prosecution has succeeded in establishing the guilt of the accused beyond doubt. It is submitted that no legal infirmity has been committed by the learned Special Court in convicting the appellant under Section 7 and 13 (1) (d) read with Section 13 (2) of the Act of 1988. 35. It is submitted that the learned Special Judge on marshaling the evidence in detail and after considering the various authorities on the issue involved in the present matter and on recording the detailed reasons, has passed the impugned judgment and order convicting the appellant. It is submitted that there is no perversity in the findings recorded by the learned Special Judge. 36. Ms Mugdha Chandurkar, learned counsel for the CBI has drawn attention of this Court to the FIR to show that the prosecution has brought on record the date, time and place about the demand and acceptance. 37. Ms. Chandurkar, learned counsel for the CBI states that payment of Rs.8,000/- can be co-related with the file relating to insurance claim of the appellant which was found in his brief case at the time of trap. 38. Ms Chandurkar, learned counsel for the respondent submits that for rebuttal of presumption under Section 20, the accused has to bring 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 Section 7 of the Act of 1988. It is submitted that the accused has failed to rebut the presumption in this case. It is submitted that the accused has failed to rebut the presumption in this case. For this purpose, learned counsel for the respondent has placed reliance on the judgments of the Hon’ble Supreme Court of India in the case of M. Narsinga Rao vs. State of A.P., AIR 2001 SC 318 , Vinod Kumar Garg vs. State (Government of National Capital Territory of Delhi), (2020) 2 SCC 88 , Ravindra vs. Government of India, 2019 SCC OnLine Bom 1144, Deorao Marotrao Bhagatkar vs. Central Bureau of Investigation, (Cri. Appeal No.406/2004, dt. 14.8.2018), C.M. Sharma vs. State of Andhra Pradesh through Inspector of Police, (2010) 15 SCC 1 . 39. It is submitted that the prosecution has established the demand and acceptance by examining four witnesses and bringing on record sufficient documentary evidence in support of the case of the prosecution. It is submitted that in absence of any rebuttal of presumption under Section 20, it cannot be said that the offence under the provision of Act of 1988 were not proved against the accused. Learned counsel for respondent has placed reliance on the judgment of this Court in the case of Madhukar Baliram Ukey vs. Central Bureau of Investigation, (Cri. Appeal No.510/2005 dt. 26.7.2018). 40. It is submitted that there is no cross-examination by the accused on chemical analyser report, it is pointed out that though numerous judgments are relied on the point of care to be taken while referring the articles for chemical analysis, however, no suggestion to that effect was given or cross-examination was conducted by the accused. It is submitted that sufficient evidence has been produced by the prosecution to show that the articles were properly sealed and marked as Article A to Article H and it was referred for Chemical Analysis. For this purpose, she has placed reliance in the judgment of State of U.P. vs. Zakaullah, (1998) 1 SCC 557 . 41. Ms. Chandurkar, learned counsel for the respondent further points out that, the discrepancies pointed out in respect of the amount taken out from the pant pocket of the accused, is of minor nature and looking to the span between the date of trap and the date of recording of the evidence, such minor discrepancies are possible but such discrepancies cannot be said to be fetal for the prosecution case. For this purpose, she has placed reliance of Girja Prasad (dead) by Lrs. For this purpose, she has placed reliance of Girja Prasad (dead) by Lrs. vs. State of M.P., (2007) 7 SCC 625 and Vinod Kumar Garj (supra). 42. Learned counsel for the respondent further argued that it is not obligatory that an expert, who furnishes his opinion on the scientific issue of the Chemical Examination of substance, should be necessarily made to depose in any proceeding before the Court. For this purpose, she placed reliance on the judgment of Hon’ble Supreme Court of India in the case of Rajesh Kumar and another vs. State Government of NCT of Delhi, (2008) 4 SCC 493 . 43. She further argues that it is not the requirement of law that the public servant must, in fact, be in a position to do the official act, favour or service at the time of demand or receipt of the gratification. It is submitted that to constitute an offence under law, it is enough if the public servant, who accept the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver with any other public servant and the giver gives the gratification under that belief. For this purpose, she has placed reliance of the Hon’ble Supreme Court of India in the case of Chaturdas Bhagwandas Patel vs. the State of Gujarat, (1976) 3 SCC 46 . 44. To consider the rival contentions of the parties, I have perused the record and proceedings and also the impugned judgment and order. 45. At this juncture, looking to the controversy involved in this case, I am of the opinion that it would be relevant to refer the Section 7 and 13 of the Act of 1988, which read thus : 7. 45. At this juncture, looking to the controversy involved in this case, I am of the opinion that it would be relevant to refer the Section 7 and 13 of the Act of 1988, which read thus : 7. Public servant taking gratification other than legal remuneration in respect of an official act – Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to doany official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of Section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. 13. Criminal misconduct by a public servant – (1) A public servant is said to commit the offence of criminal misconduct, - (a)… (b)… (c)… (d) if he,- (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or (e)….. (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for a term which shall be not less than one year but which may extend to seven years and shall also be liable to fine.” 46. The Hon’ble Supreme Court of India while dealing with the law on ‘demand of illegal gratification’, in the case of State of Punjab vs. Madan Mohan Lal Verma (supra) has held thus : 11. The Hon’ble Supreme Court of India while dealing with the law on ‘demand of illegal gratification’, in the case of State of Punjab vs. Madan Mohan Lal Verma (supra) has held 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 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 a bribe. Mere receipt of the amount by the accused is not sufficient to fasten guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification. Hence, 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 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. In a proper case, the court may look for independent corroboration before convicting the accused person. 47. In the case of B. Jairaj vs. State of Andhra Pradesh while considering the issue whether mere possession and recovery of the currency notes from the accused is sufficient to hold that there was a demand of bribe, the Hon’ble Supreme Court of India held thus : “8. … 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. … 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. 9. Insofar as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13 (1) (d) (I) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. 48. The Hon’ble Supreme Court of India has followed the said view in the case of C. Sukumaran (supra), N. Vijaykumar and K. Shanthamma (supra). 49. In the case of Chaturdas Bhagwandas Patel (supra), the Hon’ble Supreme Court of India has observed thus : “21. ………. The section does not require that the public servant must, in fact, be in a position to do the official act, favour or service at the time of the demand or receipt of the gratification. 49. In the case of Chaturdas Bhagwandas Patel (supra), the Hon’ble Supreme Court of India has observed thus : “21. ………. The section does not require that the public servant must, in fact, be in a position to do the official act, favour or service at the time of the demand or receipt of the gratification. To constitute an offence under this section, it is enough if the public servant who accepts the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver “with any other public servant” and the giver gives the gratification under that belief. It is further immaterial if the public servant receiving the gratification does not intend to do the official act, favour or forbearance which he holds himself out as capable of doing”. 50. On scrutiny of above referred judgments of the Hon’ble Supreme Court of India, following factors can be carved out which need to be taken into consideration while proving demand. a. To prove payment of bribe or to show that money was taken voluntarily knowing it to be a bribe, evidence to that effect is required. b. It is not the requirement that the public servant must, in fact, be in a position to the official act, favour or service at the time of demand or receipt of the gratification. It is enough if the public servant, who accept the gratification, takes it by inducing a belief or by holding out that he would render assistance to the giver with any other public servant and the giver gives the gratification under that belief. c. The burden rests on the accused to displace the statutory presumption raised under Section 20 of the Act of 1988, 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 or as referred in Section 7 of the Act of 1988. d. While invoking the provisions of Section 20, it is necessary to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probabilities and not proof beyond all reasonable doubt. e. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. e. However, before the accused is called upon to explain how the amount in question was found in his possession, the foundational facts must be established by the prosecution. f. The complainant is an interested 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. g. In a proper case, the Court may look for independent corroboration before convicting the accused person. 51. Thus from the above referred judgments, it is clear that demand of illegal gratification is sine quo non for constituting an offence under the Act of 1988. It is further clear that mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable. Proof of acceptance of illegal gratification can follow, only if, there is proof of demand. 52. As held in the case of Mukhtiar Singh vs. State of Punjab (supra), by the Hon’ble Supreme Court of India that, the prosecution in order to prove the charge under the provisions of Sections 7 and 13 of the Act, has to establish by proper proof, the demand and acceptance of illegal gratification and till that it is accomplished, the accused should be considered to be innocent and mere possession and recovery of the currency notes from the accused without proof of demand would not establish an offence under Section 7 as well as Section 13 (1) (d) read with Section 13 (2) of the Act, evidence on record has to be scrutinized to find out whether foundational facts are established on demand. 53. P.W-1, the complainant in his chief has deposed that, he was the owner of Tata Sumo Vehicle bearing MH33A/69. The said vehicle met with an accident on 06/04/2000 near Armori. He informed the police station about the accident. He also informed to the Branch Manager of Insurance Company with which his vehicle was insured. On next day of the accident Surveyor of the company came. Accordingly, surveyor made inspection of his vehicle and assessed the damages amounting to Rs. 2,52,000/-. The said damaged vehicle was sold through Insurance company to another party and he received Rs. 1,00,000/-. He had to receive remaining Rs. 1,52,000/-. He had prepared the claim Exh. 49 and given to the Branch Office of Gadchiroli. 54. Accordingly, surveyor made inspection of his vehicle and assessed the damages amounting to Rs. 2,52,000/-. The said damaged vehicle was sold through Insurance company to another party and he received Rs. 1,00,000/-. He had to receive remaining Rs. 1,52,000/-. He had prepared the claim Exh. 49 and given to the Branch Office of Gadchiroli. 54. PW-1 further deposed that at about 7 to 8 times, he met accused to enquire about his claim. He informed to the complainant that some papers from division office are yet to be received. Thereafter, the accused also told him that unless and until he is given Rs.8000/-, the complainant will not get the claim amount. PW-1 deposed that at that time, his son was present with him. 55. He deposed that the accused told him that on 29/09/2000, he is going to Nagpur, at that time the complainant should give him the amount at Armori on the way. As the complainant was not intending to give the said amount, he lodged the complaint to CBI office at Nagpur. 56. PW-1 further deposed that as per the say of accused, the raiding party stopped on the spot told by accused. At that time, his son Amol and Nandanwar (PW-2) were along with him. The other raiding party remained in nearby area. At about 7.10 p.m. vehicle of accused came and stopped on that spot. The complainant asked him whether he brought the cheque of his claim amount. The accused told him that it will take some time and also asked him whether the complainant brought the amount. Thereafter, the complainant removed the amount from his left side pocket by his right hand and given it to accused. Accused has accepted it and counted by both the hands and kept it in his right pant pocket. It is deposed that, at that time, Nandanwar (PW-2) was standing with the complainant. 57. In this case PW-1 while deposing on demand, has stated that on the date of trap, the accused asked him “whether he brought the money”. In view of the well settled position of law, the words attributed to the accused do not decisively or conclusively prove the demand for illegal gratification, unless there is evidence to prove payment of bribe or to show that money was taken voluntarily knowing it to be bribe. 58. In view of the well settled position of law, the words attributed to the accused do not decisively or conclusively prove the demand for illegal gratification, unless there is evidence to prove payment of bribe or to show that money was taken voluntarily knowing it to be bribe. 58. In this case, PW-1 in his deposition, did not disclose the time, date and place where the first demand of bribe was made by the accused person. 59. In the chief PW-1, he only deposed that at about 7 to 8 times, he met accused to inquire about his claim. The accused told PW-1 that unless and until PW-1 gives Rs.8,000/- to the accused, he will not get the claim amount. 60. Thus, nothing has been brought on record to show that at what time, date and place the first demand was made by the accused, for illegal gratification. 61. Similarly, as regards place fixed for acceptance of demand, PW-1 states that the accused told him that on 29/09/2000, he is going to Nagpur, at that time, PW-1 should give him the amount at Armori, on the way to Nagpur. 62. PW-1 has not stated the time and specific place in Armori which is a town and not a small place, where the accused asked PW-1 to give him the bribe amount. 63. PW-1 further deposed that at about 7.10 p.m. vehicle of the accused came and stopped on that spot. The PW-1 has not given the details of the spot, where the vehicle of the accused stopped. 64. The complainant (PW-1) has deposed that when the first demand was made by the accused, son of the complainant was present with him and in his presence, the demand was made by the accused. It is also stated by the complainant that on the date of trap, the son of the complainant met the accused first and thereafter, the complainant went towards the accused along with PW-2. 65. It is pertinent to note that, the prosecution has not given any justification for not examining the son of the complainant, who was present at the time of first demand and also at the time when the accused came at Armori to receive alleged amount of bribe. 66. Ms. 65. It is pertinent to note that, the prosecution has not given any justification for not examining the son of the complainant, who was present at the time of first demand and also at the time when the accused came at Armori to receive alleged amount of bribe. 66. Ms. Chandurkar, learned counsel for the CBI has argued that in the complaint, details about the time, date and place of first demand and the details of place and spot as well, were given by the accused. It is the submission of the learned counsel for the CBI, that though these details are not stated in chief of the PW-1/complainant, the details of time, date and place given in the FIR, can be taken into consideration. 67. The Hon’ble Supreme Court of India in the case of C. Magesh and others vs. State of Karnataka, (2010) 5 SCC 645 has held thus : It is settled law on the point that FIR is not a substantive piece of evidence. However the FIR can not be given a complete go-by since it can be used to corroborate the evidence of the person lodging the same. In the judgment of this Court titled Baldev Singh v. State of Punjab, it was held that as far as the evidentiary value of the FIR is concerned it can only be used to for corroboration of its maker, but the FIR can not be used as substantial evidence or corroborating a statement of third party. It is thus, clear that, the FIR is not a substantive piece of evidence. However, the FIR can be used to corroborate the evidence of the person lodging the same. The same view was taken by the Hon’ble Supreme Court of India in case of Baldev Singh vs. State of Punjab (Supra). 68. In the circumstances, I am afraid to accept the submission of the learned counsel for the CBI that, for details as regards date, time and place FIR can be taken into consideration in absence of an oral evidence of PW-1 on the said points. 69. Ms. Chandurkar, learned counsel for the CBI states that it has come in the deposition of PW-1 that Rs.8,000/- was demanded by the accused. For this purpose, she has referred to the deposition of PW-1 wherein he has stated that at about 7.10 p.m. vehicle of accused came and stopped on that spot. 69. Ms. Chandurkar, learned counsel for the CBI states that it has come in the deposition of PW-1 that Rs.8,000/- was demanded by the accused. For this purpose, she has referred to the deposition of PW-1 wherein he has stated that at about 7.10 p.m. vehicle of accused came and stopped on that spot. His son met him. Thereafter, PW-1 went towards accused Ramteke and offered Namaste and talked with the accused. PW-1 asked him, whether he brought the cheque of his claim amount. The accused told PW-1 that it will take some time and also asked PW-1 whether PW-1 “brought the amount”. 70. PW-2, in his chief has deposed about the demand. PW- 2 states that PW.1 asked the accused whether his cheque was brought. The accused informed to PW-1 that process of cheque is going on and some papers are yet to be completed. Thereafter, accused asked the complainant that his work will be done and whether he brought the amount of Rs.8,000/- as told. The complainant told him that as per his say, he has brought Rs.8,000/-. PW-1 remove the amount from his left side pocket and gave to the accused. The accused has accepted the amount by both the hands and after counting it kept it in his right pant pocket. 71. In the deposition of PW-1, this part as stated by PW-2 that the accused asked the complainant whether he brought the amount of Rs.8,000/- as told and that the complainant told him that as per his say, he has brought Rs.8,000/-, is missing. 72. PW-1 in his examination-in-chief, did not state the amount in figure, but he has deposed only to the extent that the accused asked him, “whether he brought the amount and he replied that he has brought it”. 73. There is a clear difference in versions of P.W. No.1 and P.W. No.2. This difference in the version is significance, particularly when there is no evidence on record to corroborate the first demand alleged to have been made to the P.W. No.1 and his son. 74. Furthermore, there are discrepancies in the evidence of PW-1, PW-2 and PW-3. 73. There is a clear difference in versions of P.W. No.1 and P.W. No.2. This difference in the version is significance, particularly when there is no evidence on record to corroborate the first demand alleged to have been made to the P.W. No.1 and his son. 74. Furthermore, there are discrepancies in the evidence of PW-1, PW-2 and PW-3. The PW-1 in his deposition has stated that PW-2 has recovered the amount, whereas PW-2 in his deposition has stated that Panch No.2 Pande recovered the amount and PW-3 maintains the statement of the PW-2, that Panch No.2 Pande recovered the amount from the pant pocket of the accused. 75. The Hon’ble Supreme court of India in the case of Suraj Mal vs. The State (Delhi Administration), AIR 1979 SC 1408 has held thus:- It is well-settled that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. Hence, above referred discrepancies cannot be discarded. 76. Moving further, it is the case of the prosecution that two constables held the hands of the appellant and they have taken the accused person from the ‘Panthela’ to ‘Photo Studio’ across the road, where the test was conducted. However, the two constables who caught hold the hands and they continued to hold the hands of the accused till the accused was taken to photo studio, were not examined. 77. No evidence has brought on record by the prosecution to establish the link and what had happened in between the alleged spot i.e. ‘Panshop’ and the ‘Photo Studio’, by examining those two constables. This link is significant in view of the fact that the sodium carbonate liquid test of all the members of the party and panchas were conducted at the Panshop and testing of the fingers of hands of the accused, was conducted at Photo Studio by taking him from ‘Panshop’ to ‘Photo Studio’ across the road. 78. In this backdrop, the possibility as expressed by the accused that while taking the accused from Panthela to Photo Studio, phenolphthalein powder was applied on the hands of the accused, cannot be overlooked. 79. 78. In this backdrop, the possibility as expressed by the accused that while taking the accused from Panthela to Photo Studio, phenolphthalein powder was applied on the hands of the accused, cannot be overlooked. 79. This possibility, gets strengthen in view of the admission given by PW-3 that after testing the hands of accused, she has not tested the hands of Abdul Salim and Wath (two constables who caught hold the hands of accused), in the liquid. 80. In this case, there was no verification of demand before laying the trap. Usually the Investigating Agencies seek to verify the allegation with respect to the demand of bribe before taking steps to lay a trap. In this case, it was not done and no justification has been offered in this regard. 81. The recovered currency notes upon which sodium carbonate solution is alleged to have been sprinkled, appears to have not been sent for chemical analysis. No reason is put forth by the prosecution for Investigating Officer not sending the recovered currency notes for chemical analysis. 82. Shri Joshi, learned counsel for the applicant has relied upon numerous judgments as referred in para No.27, on the point of safeguards to be taken while referring the articles for chemical examination. On going through the judgment cited, it is clear that the police should be careful when sending exhibits to the Chemical Analyzer to mark each one in such a way that its identify can be fixed and safeguarded throughout. It is, therefore, necessary for the prosecution to produce evidence that steps were taken at once to seal the articles, and that from the time the articles came into possession of the police to the time they were sent for identification before the Magistrate or for examination to the Chemical Examiner, the seals remained intact. 83. In this case, no evidence was led to show that in what conditions the articles A to H were preserved at the Police Station and how they were taken from there to the Chemical Examiner by its carriers. No witness was examined by the prosecution in this regard. No Malkhana Register has been produced. 84. Though there is no need to examine an expert who furnishes his opinion on the scientific issue of the chemical examination of the substance, as held by the Hon’ble Supreme Court of India in Rajesh Kumar and another (supra). No witness was examined by the prosecution in this regard. No Malkhana Register has been produced. 84. Though there is no need to examine an expert who furnishes his opinion on the scientific issue of the chemical examination of the substance, as held by the Hon’ble Supreme Court of India in Rajesh Kumar and another (supra). However, the evidence about the safeguards observed by the prosecution while referring the articles for chemical examination, is necessary, which evidence has not been brought on record by the prosecution. 85. It is a settled law that it is not the requirement that the public servant must, in fact, be in a position to the official act, favour or service at the time of demand a receipt of the gratification. It is enough if the public servant, who accepts the gratification, takes it bar inducing a belief or by holding out that he would render assistance to the giver with any other public servant and the giver gives the gratification under that belief. In that view of the matter, the contention of the learned counsel for the appellant that, the appellant was not the sanctioning authority and therefore, it cannot be said that there was any demand of bribe by the accused for sanctioning the claim of the complainant/P.W. No.1 cannot be accepted. 86. There is no doubt as argued by the learned counsel for the respondent that, the burden rest on the accused to displace the statutory presumption raised under Section 20 of the Act of 1988, by bringing on record evidence, either direct or circumstantial to establish with reasonable probabilities, that the money was accepted by the accused other than as a motive or reward or as referred in Section 7 of the Act of 1988. However, before the accused is called upon to explain how the amount in question was found in his possession, it is mandatory for the prosecution to establish the foundational facts. 87. In the present case, as it can be seen that the prosecution has not established foundational facts, therefore, presumption under Section 20 of the Act of 1988 will not apply. 87. In the present case, as it can be seen that the prosecution has not established foundational facts, therefore, presumption under Section 20 of the Act of 1988 will not apply. In the circumstances, the contention of the learned counsel for the respondent that the accused failed to establish with reasonable probability that the money was accepted by him other than motive or reward as referred to Section 7 of the Act of 1988, cannot be accepted. 88. In view of the above referred findings, the judgment cited by the learned counsel for the respondent in the case of M. Narsinga Rao vs. State of A.P., (supra), Vinod Kumar Garg vs. State (Government of National Capital Territory of Delhi) (supra), Ravindra vs. Government of India (supra), Deorao Marotrao Bhagatkar vs. Central Bureau of Investigation (supra), C.M. Sharma vs. State of Andhra Pradesh through Inspector of Police (supra) and in the case of Madhukar Baliram Ukey vs. Central Bureau of Investigation (supra) are of no help to the respondent, in this case. 89. In light of discussions made herein above, I have no hesitation to hold that the learned trial Court has committed error in holding that the prosecution has proved demand and acceptance of bribe amount by the appellant from P.W. No.1 Dr. D.D. Markwar beyond reasonable doubts. 90. Thus, the findings recorded by the learned trial Court while arriving at such conclusion, are based on no evidence and hence, the findings are perverse. 91. In the circumstances, I am of the considered view that the present appeal needs to be allowed for the reasons recorded herein above. Accordingly, I pass the following order : (i) The appeal is allowed. (ii) The judgment and order dated 13th August 2012 passed by the Special Judge, Gadchiroli, in Special (ACB) Case No. 01 of 2001 is hereby quashed and set aside. (iii) The appellant is acquitted of the offence punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. (iv) His Bail Bonds shall stand cancelled. (v) The Muddemal Property be dealt with as per order of the learned Special Judge. The criminal appeal stands disposed of accordingly.