JUDGMENT : 1. This appeal has been preferred by the appellant under Section 374 (2) of the Code of Criminal Procedure, 1973 against judgment dated 30.06.1999 passed by Special Judge, Raipur, District- Raipur (C.G.) in Special Criminal Case No. 49/91, whereby the appellant stands convicted and sentenced as under:- Conviction Sentence U/s 161 of IPC R.I. for 1 year and fine of Rs. 1000/- and in default of payment of fine, additional S.I. for 3 months. U/s 5(1)(D) r/w 5(2) of Prevention of Corruption Act, 1947 R.I. for 1 year and fine of Rs. 1000/- and in default of payment of fine, additional S.I. for 3 months. (All the sentences to run concurrently) 2. The case of the prosecution, in brief, is that on 26.09.1986, the appellant, who was posted as an Assistant Security Inspector with the then Madhya Pradesh State Road Transport Corporation (MPSRTC) Korba and a public servant. The complainant- Bholaram was posted as Conductor and carrying the bus at Balco-Korba bus route. The bus was checked near Madwarani Temple by the appellant along with another inspector M.L. Sahu wherein 8 passengers were found without ticket. The report of the incident was sent to higher authorities and on the basis of the report, departmental enquiry was initiated against complainant-Bholaram. In the departmental enquiry, on 03.01.1987, statements of the accused and Inspector- M.L. Sahu were to be recorded at office of Enquiry Officer at Bilaspur. It has been further contended that the appellant demanded Rs. 500/- as bribe from Bholaram to change his evidence to save Bholaram. Bholaram was not inclined to give bribe, therefore, he lodged written report (Ex. P/1) to Special Police Establishment Bilaspur. On producing five notes of Rs. 100/- each, number of notes were noted and phenolphthalein powder was smeared over it and given the same to Bholaram. He was directed to give hint after giving bribe to the appellant. After that, members of trap team reached near office of MPSRTC Bilaspur depot. Bholaram sent to depot where the appellant was present. On demanding bribe by the appellant, notes of bribe were given to appellant by Bholaram thereafter Bholaram hinted trap team, the members of the trap team caught the appellant red handed and seized the powder smeared notes. After that, members of trap team reached near office of MPSRTC Bilaspur depot. Bholaram sent to depot where the appellant was present. On demanding bribe by the appellant, notes of bribe were given to appellant by Bholaram thereafter Bholaram hinted trap team, the members of the trap team caught the appellant red handed and seized the powder smeared notes. The witnesses have seized the notes and the appellant had kept the notes in his pocket, which was also seized by the prosecution and blue shirt was also seized. After usual investigation and completing all the formalities including obtaining sanction from the higher authority to prosecute the appellant for commission of offence under Section 5(1)(D) and 5(2) of the Prevention of Corruption Act, charge-sheet was produced before the learned trial Court. 3. The appellant denied the allegation levelled against him and has stated that due to his evidence only, result of the departmental enquiry cannot be changed. He has taken his defence that before the incident, complainant-Bholaram had borrowed Rs. 500/- from him, which Bholaram had returned, therefore, he has not demanded the money, as such, ingredients of offence under Prevention of Corruption Act is not made out. It has also been stated that due to grudge with the appellant the then depot Manager- Mr. Sinha has pressurized complainant to falsely implicate the appellant. 4. The prosecution, in order to bring home guilt of appellant, has examined 10 witnesses namely M.G. Lokhande (PW-1), Z. Hasan (PW-2), Lakshan Ram (PW-3), N.K. Pandey (PW-4), Thakur B.B. Singh (PW-5), Amritram (PW-6), R.S. Sage (PW-7), S.S. Gour (PW-8), S.K. Verma (PW-9) & Bholaram Kesharwani (PW-10) and exhibited documents namely complaint (Ex. P/1), initial panchnama (Ex. P/2), seizure memo (Ex. P/3 & P/4), panchnama regarding trap proceeding (Ex. P/5), seizure memo (Ex. P/6), najri naksha (Ex. P/7), office order dated 02.061986 (Ex. P/8), sanction order dated 02.08.1988 (Ex. P/9), jamanatnama (Ex. P/10), Dehati Nalsi (Ex. P/11), letter to FSL Sagar dated 09.01.1987 (Ex. P/12), list of things to be tested (Ex. P/13), FSL opinion (Ex. P/14). The accused was examined under Section 313 of the Cr.P.C. wherein he has denied the charge levelled against him and pleaded innocent. He has stated in reply to question No. 112 that on the date of incident along with him Mr. P/12), list of things to be tested (Ex. P/13), FSL opinion (Ex. P/14). The accused was examined under Section 313 of the Cr.P.C. wherein he has denied the charge levelled against him and pleaded innocent. He has stated in reply to question No. 112 that on the date of incident along with him Mr. M.L. Sahu Traffic Supervisor was also present, both of them made case against the complainant for carrying passengers without tickets, therefore, merely on the change of statement of the appellant, the fate of the departmental enquiry will not be changed. He has also stated that the complainant has not given him bribe but he has returned Rs. 500/- which he has taken and he has also submitted his report in this regard. In defence, the appellant has examined Manmohan Singh (DW-1), Bhartendu Pandey (DW-2), Deodhar Patel (DW-3) and exhibited documents namely statement of Amrit Rao (DW-1), letter of Bholaram Kesharwani (DW-2), affidavit of Bholaram (DW-3), statement of Bholaram Kesharwani (DW-4), affidavit of Manmohan Singh (DW-5), affidavit of Bhartendu Pandey (Ex. D/5) & affidavit of Lalmani Patel (Ex. D/6). 5. Complainant-Bholaram Kesharwani (PW-10) was examined before the trial Court wherein he has admitted that on 07.01.1987, he made a complaint before Superintendent of Police, Anti Corruption Bureau, Bilaspur against in-charge depot manager namely C.K. Sinha, in which, he has put his signature. He has also admitted that when the bus was checked along with the present appellant, one M.L. Sahu Traffic Supervisor was also present. He has also admitted that in departmental enquiry, the present appellant was also witness along with one M.L. Sahu. He has also admitted that he is not aware whether statement of Sheshmani Mishra was recorded or not. He has also stated that after pouring powder on the notes in the office of ACB, he kept the notes behind books. He has also admitted that money which was kept in the book was not washed by the trap team and pocket of his shirt was also not washed. He has admitted that no proceeding was initiated before him regarding washing of goods. He has stated that subsequently Sinha has removed him from service. 6. He has also admitted that money which was kept in the book was not washed by the trap team and pocket of his shirt was also not washed. He has admitted that no proceeding was initiated before him regarding washing of goods. He has stated that subsequently Sinha has removed him from service. 6. The prosecution witness M.G. Lokhande (PW-1) who was member of the trap team has admitted in the cross examination that he has not seen the complainant giving money to appellant and what was their discussion has also not been heard as he was in a far distance from the place. Z. Hasan (PW-3) Depot Manager has admitted that on the basis of statement of appellant only the charges levelled against the complainant cannot be proved. Amrit Ram (PW-6) who is member of trap team has admitted in the cross-examination that he has not heard what was the discussion between accused and the complainant regarding money transaction. He has also admitted that since it is a long time incident, therefore, he cannot recollect from which part of the clothes of the appellant notes have been seized. S.S. Gour (PW-8) has admitted in the cross-examination that they have not asked the appellant why he has taken the money. He has also admitted that he was busy in preparing the liquid therefore, what was discussed between Markam and accused, he has not heard it. S.K. Verma (PW-9) who was member of the trap team has admitted that the place where accused and complainant were standing could not be seen and what was their discussion could not be heard by them. 7. Manmohan Singh (DW-1), Assistant Account Officer, MPSRTC has stated that Bholaram has requested the present appellant to lend Rs. 500/- but he refused to give the amount and after repeated perpetuation, he gave Rs. 500/- to Bholaram. He told to Bholaram to return money after payment of salary otherwise it will be deducted from his pay. He has also given affidavit in this regard which is exhibited as Ex.D-4. This witness in the cross-examination has stated that in absence of Depot Manager he has right to accept payment of advance to any employee. He has admitted that he has not informed the fact which has been mentioned in the affidavit to the higher authorities. He has denied that the accused has not lent Rs. This witness in the cross-examination has stated that in absence of Depot Manager he has right to accept payment of advance to any employee. He has admitted that he has not informed the fact which has been mentioned in the affidavit to the higher authorities. He has denied that the accused has not lent Rs. 500/- to the complainant before him. 8. Bhartendu Pandey (DW-2) has reiterated the same and in the cross-examination he has stated that he has requested Bholaram to return the money, but he has also admitted that the accused has not given money before him and he has denied that the accused has demanded bribe in front of him. Deodhar Patel (DW-3) has stated that the complainant has told the appellant that whatever money was given by him be taken back and thereafter, Bholaram has given 500/- to the appellant which was kept by him. He has denied that the money transaction was not happened before him. 9. Learned trial Court in its judgment dated 30.06.1999 while convicting the appellant has recorded its finding that the appellant has demanded Rs. 500/-, its intention and bribe money have been proved therefore, he has committed offence punishable under Section U/s 5(1)(D) r/w 5(2) of Prevention of Corruption Act, 1947 as well as Section 161 of the IPC. Being aggrieved with the aforesaid judgment of conviction, the appellant has preferred the instant appeal under Section 347 (2) of the Cr.P.C. before this Court. 10. Learned counsel for the appellant would submit that the prosecution has not proved the case beyond reasonable doubt that the appellant has demanded money as bribe. Learned trial Court ought to have seen that the prosecution story of accepting bribe by accused not corroborated with the chain of incidents rather created a reasonable doubt that the appellant was implicated falsely. He would further submit that the learned trial Court ought to have seen that explanation of money found in possession of the appellant that the informant refunded the amount borrowed by him. He would further submit that the learned trial Court ought to have seen that explanation of money found in possession of the appellant that the informant refunded the amount borrowed by him. He would also submit that the learned trial Court ought to have seen that Z. Hasan (PW-2) in his cross examination admitted that on the basis of evidence of the appellant, result of departmental enquiry could not be effected as other witness was also there, who can establish guilt of the present appellant, therefore, the learned trial Court should have given benefit of doubt in favour of the appellant. Hence, it is prayed that his appeal may kindly be allowed and the appellant may be acquitted from the charges levelled against him. 11. On the other hand, learned State counsel would submit that the prosecution has proved the case beyond reasonable doubt. He would further submit that the learned trial Court after appreciating the evidence and material available on record has rightly convicted the appellant. He would further submit that the finding arrived at by the trial Court convicting the appellant for commission of offence as aforestated is legal, justified and does not warrant any interference by this Court and would pray for dismissal of the appeal. 12. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 13. Before adverting to the facts to the case, it is expedient for this Court to extract Sections 5(1) & 5(2) of Prevention of Corruption Act, 1947, which are as under:- “5. 12. I have heard learned counsel for the parties and perused the documents placed on record with utmost satisfaction. 13. Before adverting to the facts to the case, it is expedient for this Court to extract Sections 5(1) & 5(2) of Prevention of Corruption Act, 1947, which are as under:- “5. Criminal misconduct in discharge of official duty- (1) A public servant is said to commit the offence of criminal misconduct: (a) if he habitually accepts or obtains on agrees to accept or at tempts to obtain from any person for himself or for any other person, any gratification (other than legal remuneration) as a motive or reward such as is mentioned in Sect ion 161 of the Indian Penal Code; or (b) if he habitually accepts or obtains or agrees to accept or at tempts to obtain for himself or for any other person; any valuable thing without consideration or for a consideration which he knows to be inadequate, from any person whom he knows to have been; or to be, or to be likely to be "concerned in any proceeding or business transacted or about to be transacted by him, or having any connect ion with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned, or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant oral lows any other person so to do, or (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. (e) if he or any person on his behalf is in possession or has, at any time during the period of his of f ice, been in possession, for which the public servant cannot satisfactorily account , of pecuniary resources or property disproportionate to his known sources of income. (2) Any public servant, who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to file.” 14. (2) Any public servant, who commits criminal misconduct shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to file.” 14. From perusal of above provisions of the Act, 1947, it is evident that the allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. Even the decision of the Constitution Bench in the case of Neeraj Dutta vs Govt of NCT of Delhi reported in (2022) SCCOnline 1724 does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, this Court has to examine whether there is any direct evidence of demand. If this Court has to reach to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand. Hon'ble the Supreme Court in case report in Neeraj (supra) has held at paragraph 74 as under:- “74. What emerges from the aforesaid discussion is summarised as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13 (1)(d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7or Section 13 (1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13 (1)(d) and (i) and (ii) of the Act. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event the complainant turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the prosecution can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature. 69. Section 20 does not apply to Section 13 (1) (d) (i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature. 69. In view of the aforesaid discussion and conclusions, we find that there is no conflict in the three judge Bench decisions of this Court in B. Jayaraj and P. Satyanarayana Murthy with the three judge Bench decision in M. Narasinga Rao, with regard to the nature and quality of proof necessary to sustain a conviction for offences under Sections 7 or 13(1)(d)(i) and (ii) of the Act, when the direct evidence of the complainant or “primary evidence” of the complainant is unavailable owing to his death or any other reason. The position of law when a complainant or prosecution witness turns “hostile” is also discussed and the observations made above would accordingly apply in light of Section 154 of the Evidence Act. In view of the aforesaid discussion, we hold that there is no conflict between the judgments in the aforesaid three cases. 76. Accordingly, the question referred for consideration of this Constitution Bench is answered as under: In the absence of evidence of the complainant (direct/primary, oral/documentary evidence) it is permissible to draw an inferential deduction of culpability/guilt of a public servant under Section 7 and Section 13(1)(d) read with Section 13(2) of the Act based on other evidence adduced by the prosecution. 15. From the above stated legal position, the allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. 16. Now coming to the evidence on record, the direct evidence of Bholaram (PW-10) wherein he has stated that he has made complaint against C.K. Sinha, In-charge Depot Manager and has submitted an affidavit before the trial Court which was exhibited as Ex.D-3, though he has stated that the affidavit has been forcefully signed. He has also stated that he has kept 5 notes of Rs. 100/- each inside book. He has also stated that the money which was kept inside the book, was not washed by the trap team. He has admitted that washing proceeding was not conducted before him. He has also stated that he has kept 5 notes of Rs. 100/- each inside book. He has also stated that the money which was kept inside the book, was not washed by the trap team. He has admitted that washing proceeding was not conducted before him. He has also admitted that Sinha has removed him from service and has also submitted an affidavit wherein he has narrated that the Depot Manager has directed him to falsely implicate the appellant. He has contended in the affidavit that he has lent Rs. 500/- from the appellant which he has deposited in the Depot Treasury of the Corporation. He has also stated that the Depot Manager Shri Sinha threatened him on 04.01.1997 if he tells anything to anybody then he will be removed from service. He has shown knife to him also and has submitted report to the Anti Corruption Bureau. A photocopy of the same was also filed which is exhibited as Ex.D-2. He has stated in cross-examination that his signature in the affidavit was forcibly written, but he has not lodged any complaint before police. The conduct of the PW-10 creates doubt whether the appellant has demanded money or not as the PW-10 in his cross examination has admitted that he has submitted affidavit but stated that forcibly it has been signed and has not lodged any report for pressuring him to submit the affidavit whereas he has lodged complaint against the misdeed of Depot Manager Sinha to the ACB, thus, creates doubts whether the appellant has demanded the money or there is intention for it. The learned trial Court while recording this finding has ignored the evidence of Z. Hasan (PW-2) Inquiry Officer who has admitted in cross-examination that the case against the complainant – Bholaram cannot be proved merely on the statement of appellant as other Traffic Supervisor statements also to be examined during enquiry. 17. Learned trial Court while disbelieving statement of DW-1 & DW-2 has recorded its finding that no such question was put to the accused and even these witnesses are interested witnesses, as such, it cannot be relied upon. This finding is contrary to the evidence, material on record as the accused in his statement recorded under Section 313 of the Cr.P.C. has narrated the event, that the amount of Rs. This finding is contrary to the evidence, material on record as the accused in his statement recorded under Section 313 of the Cr.P.C. has narrated the event, that the amount of Rs. 500/- has not taken as bribe but as return money which was borrowed by the complainant, which the trial Court has not taken into consideration and there is no reason to disbelieve the evidence of the accused. Thus, the findings are perverse, contrary to the evidence. From perusal of the evidence, material on record, it is clearly established that the appellant has not made any demand, therefore, case of the prosecution is not proved beyond reasonable doubt, as such, the appellant is liable to be given benefit of doubt. The Hon’ble Supreme Court in the case of Neeraj Dutta vs. State (Criminal Appeal No. 1669/2009 decided on 17.03.2022) at paragraphs 19 and 20 has held as under:- “19. In the present case, there are no circumstances brought on record which will prove the demand for gratification, therefore, the ingredients of the offence under Section 7 of the PC Act were not established and consequently, the offence under Section 13(1)(d) will not be attracted. 20. Hence, the appeal must succeed. We set aside the impugned judgment and the judgment of the Special Court and set aside the conviction and sentence of the appellant. ….” 18. Since the prosecution has not been able to prove the demand, intention beyond reasonable doubt and prosecution story is doubtful, the accused is entitled to grant the benefit of doubt. 19. In view of the above, the appeal is allowed. The judgment of conviction and sentence passed by the trial Court is set aside. The appellant is acquitted of the charge under Sections 161 of IPC and Section 5(1)(D) r/w Section 5(2) of Prevention of Corruption Act, 1947. 20. The appellant is reported to be on bail. His bail bond shall continue for a further period of six months from today in view of Section 437-A of Cr.P.C.