JUDGMENT : A.V. RAVINDRA BABU, J. 1. This is a Criminal Appeal filed by the State, being represented by the Dy. Superintendent of Police, Anti-Corruption Bureau, Vijayawada Range, Vijayawada, through the Standing Counsel-cum-Special Public Prosecutor for ACB Cases, challenging the judgment, dated 04.04.2007 in C.C. No. 3 of 2003, on the file of Special Judge for SPE/ACB Cases, Vijayawada, whereunder the learned Special Judge, found the respondent herein i.e. Accused Officer (“AO” for short) not guilty of the charges under Sections 7 and 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 and acquitted him under Section 248(1) of the Code of Criminal Procedure (“Cr.P.C.” for short). But, at the same time, he made an order to prosecute PW-1 for perjury with a direction to lodge a complaint against him before the jurisdictional Magistrate. 2. The parties to this Criminal Appeal will hereinafter be referred as described before the trial Court for the sake of convenience. 3. The State, represented by the Dy. Superintendent of Police, Vijayawada Range, Vijayawada, filed a charge sheet in Crime No. 11/ACB-CR/2000, alleging in substance, as follows: (i) The AO worked as Executive Engineer, Irrigation Division, Krishna Central Division, Vijayawada, from May, 1999 to 25.07.2000 i.e. as on the alleged date of trap and as such, he is a public servant within the meaning of Section 2(c) of Prevention of Corruption Act, 1988. (ii) Sri K. Venkat Rao S/o Kesava Chandra Chowdary, resident of Vijayawada (PW-1) was a Civil Contractor, who executed K.E.B. canal contract work pertaining to Irrigation Department, Krishna, Central Division by 1999 July. On 24.07.2000 at 7-00 a.m. when PW-1 approached the AO for payment of the final bill pertaining to filling of scours in front of Prakasam Barrage for the vents 1 to 50, the AO demanded Rs. 5,00,000/- as bribe and PW-1 pleaded his inability. On that the AO threatened him that he will not record the work in “M” book and settle the bill, unless he was bribed. After repeated requests by PW-1, the AO informed PW-1 to pay Rs. 1,00,000/- as bribe on 25.07.2000 to him either at his residence or at his Office and another Rs. 2,00,000/- to be paid as and when the bill amount was given. On that as PW-1 was not willing to pay the demanded bribe amount, he proceeded to the Dy. After repeated requests by PW-1, the AO informed PW-1 to pay Rs. 1,00,000/- as bribe on 25.07.2000 to him either at his residence or at his Office and another Rs. 2,00,000/- to be paid as and when the bill amount was given. On that as PW-1 was not willing to pay the demanded bribe amount, he proceeded to the Dy. S.P. ACB, City Range-I, Hyderabad, and presented Ex.P.8, who after observing necessary formalities, registered as a case and investigated into. (iii) On 25.07.2000 the AO was successfully trapped in his residential office, when he further demanded and accepted the bribe of Rs. 1,00,000/- from PW-1 in the presence of mediators and the tainted amount was recovered from his physical possession and when the S.C. solution test was conducted to both the hand fingers and inner linings of the pant pocket and handkerchief, it proved positive and thereafter the case was investigated into and charge-sheet was filed. (iv) The Government of Andhra Pradesh issued prosecution sanction order vide G.O.Ms. No. 85, Irrigation and CAD (Services-VI-I) Department, dated 08.05.2002 to prosecute the AO. Hence, the charge-sheet. 4. The learned Special Judge for SPE/ACB Cases, Vijayawada, took the case on file under the above provisions and after complying the necessary formalities Section 207 of Cr.P.C. framed charges under Section 7 and Section 13(2) r/w 13(1)(d) of Prevention of Corruption Act, 1988 against A.O. and explained the same to him in Telugu, for which he pleaded not guilty and claimed to be tried. 5. During the course of trial, on behalf of the prosecution, PWs. 1 to 14 were examined and Exs.P.1 to P.21 were marked and M.Os.1 to 10 were marked. After closure of the evidence of the prosecution, AO was examined under Section 313 of Cr.P.C. with reference to the incriminating circumstances appearing in the evidence let in, for which he denied the same and got filed a written statement contending in substance as follows: (a) He never demanded or accepted any illegal gratification from PW-1. PW-1 got two works on tender basis and entered into an agreement with Superintendent Engineer under which he has to complete the work within 45 days by 20.06.1999, but, he could not complete it. He could complete only 1/3rd of the work by then. PW-1 got two works on tender basis and entered into an agreement with Superintendent Engineer under which he has to complete the work within 45 days by 20.06.1999, but, he could not complete it. He could complete only 1/3rd of the work by then. So, the bills relating to his work were not processed by the Section Officer because PW-1 has to file an application to the Superintendent Engineer for extension of time and it has to be sanctioned and then only processing of the bills would be commenced. No bill relating to the work of PW-1 was received by him till the date of trap. PW-1 submitted extension application after the trap and the same was approved by the Superintendent Engineer. So, no work was pending before him. In respect of the work relating to Exs.P.2 to P.4 even PW-1 could not start the work. (b) The villagers and the local MLA pressurized him to see that work was completed. AO asked PW-1 to complete the same. PW-1 informed to him that he was unable to complete and the works may be carried on by the villagers by ordering the local contractors and the value of the work executed by them will be paid to them by him out of the bills received by him from the department. The villagers and local contracts insisted the AO that they would carry on the works, if AO stood as a guarantor and to see that the bills would be paid from out of the bills realized by PW-1. So, he was compelled to agree in the interest of the public. Ch. Poornachandra Rao, M. Bujji, P. Sreeramachandra Murthy and S. Satyanarayana Murthy executed the works to a tune of Rs. 4,45,000/- and odd during June, 1999. PW-1 submitted an application to the Superintendent Engineer for extension of time which was approved on 16.02.2000. Thereafter, Section Officer processed the bills of PW-1 for the works executed by him including those works executed by local contractors and it was received by his office and he passed the same and submitted to Pay and Accounts Office during 2nd week of July, 2000. PW-1 received a cheque, dated 14.07.2000 and out of the cheque amount received by PW-1, he has to remit Rs. 4,45,000/- and odd to the four local villagers-cum-contractors. PW-1 received a cheque, dated 14.07.2000 and out of the cheque amount received by PW-1, he has to remit Rs. 4,45,000/- and odd to the four local villagers-cum-contractors. The said persons brought to the notice of AO that PW-1 was not paying the amounts. Then, he insisted PW-1 to pay the amount immediately, for which PW-1 informed him that he would send it. (c) On 25.07.2000 i.e. the date of trap while he was in official quarter, at about 4-00 p.m. one person approached him and introduced himself as K. Ramamohana Rao, cousin of PW-1 and gave Rs. 1,00,000/- representing that PW-1 sent the same to be paid to the local villagers-cum-contractors for the works executed by them. Then, he took the same and kept it in his right side pant pocket and immediately the ACB officials arrived there, to whom he spontaneously represented that he neither demanded nor accepted any bribe amount from PW-1 and explained what literally had happened in between them. 6. In furtherance to the defence, AO examined DWs. 1 and 2 and got marked Exs.D.1, C.1, X.1 to X5. 7. The learned Special Judge for SPE/ACB Cases, Vijayawada, on hearing both sides and on considering the oral as well as documentary evidence, found the A.O. not guilty of the charges framed against him and accordingly, acquitted him under Section 248(1) of Cr.P.C. Felt aggrieved of the same, the State, represented by the Dy. Superintendent of Police, ACB, Vijayawada Range, filed the present Criminal Appeal. 8. Now, in deciding this Criminal Appeal, the points that arise for consideration are as follows: (1) Whether the prosecution before the Court below proved that processing of the bills of PW-1 relating to the works executed by him was pending with AO prior to the date of trap and on the date of trap in the manner as alleged by the prosecution? (2) Whether the prosecution has proved before the Court below that AO demanded PW-1 the bribe amount prior to the date of trap and during the trap so as to do official favour in favour of PW-1? (3) Whether the prosecution has proved the charges against the AO beyond reasonable doubt? (4) Whether there are any grounds to interfere with the judgment of acquittal recorded by the trial Court? POINTS 1 to 4: 9. (3) Whether the prosecution has proved the charges against the AO beyond reasonable doubt? (4) Whether there are any grounds to interfere with the judgment of acquittal recorded by the trial Court? POINTS 1 to 4: 9. Before going to appreciate the case of the prosecution in this regard, this Court would like to make it clear the fact that the AO was a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988 is not in dispute. The further fact that the prosecution obtained a valid sanction under Ex.P.20 is not in dispute. To prove the valid sanction under Ex.P.20 the prosecution examined PW-9 and got marked Ex.P.20 and the evidence adduced by the prosecution in this regard proves the fact that the Government after consideration of the entire material available, accorded sanction under Ex.P.20. The learned Special Judge gave appropriate findings on point Nos. 1 and 2 as to the fact that AO was a public servant within the meaning of Section 2(c) of the Prevention of Corruption Act, 1988 and prosecution obtained a valid sanction to prosecute the AO. These aspects are not at all challenged during the course of arguments in this Criminal Appeal. 10. Smt. A. Gayathri Reddy, learned Standing Counsel for ACB and Special Public Prosecutor, appearing for the State, would contend that unfortunately, PW-1 turned hostile to the case of the prosecution. He alleged as if things are against LW-2 K. Ramamohan Rao, the accompanying witness during the post-trap. He developed a case by not supporting the case of the prosecution that LW-2 K. Ramamohan Rao informed to PW-1 that AO expecting and demanding bribe and that basing on the advice of LW-2 K. Ramamohan Rao, he lodged a report to ACB, Dy. S.P. and even during post-trap, he handed over the amount to LW-2 K. Ramamohan Rao and LW-2 K. Ramamohan Rao went into the residence of AO and handed over the amount and came out. So, for obvious reasons, taking advantage of the death of LW-2 K. Ramamohan Rao, the accompanying witness, PW-1 turned hostile throwing blame against LW-2. 11. She would further contend that prosecution examined several witnesses to prove the pendency of the official favour and there was no dispute that AO was a public servant and he had to look after the processing of the bills pertaining to work entrusted to PW-1. 11. She would further contend that prosecution examined several witnesses to prove the pendency of the official favour and there was no dispute that AO was a public servant and he had to look after the processing of the bills pertaining to work entrusted to PW-1. The allegation is that AO threatened PW-1 that unless he pays the bribe amount, he will not record the work in the “M” book and settle the bills. Having no other go, PW-1 accepted to give the bribe of Rs. 1,00,000/- and he lodged a report with ACB. The ACB taking care of all the issues, got read over the contents of the report of PW-1 through the mediators to PW-1 and conducted pre-trap and post-trap proceedings and instructed PW-1 that he shall give the amount to AO only on his further demand. Accordingly, the entire trap was laid according to the things which were planned and the trap was successful. During the post-trap, AO demanded PW-1 and took bribe of Rs. 1,00,000/- and then the ACB trapped him. LW-2 K. Ramamohan Rao was accompanying witness, who died. Taking advantage of it and due to lapse of time, AO own over PW-1, as such, PW-1 turned hostile to the case of the prosecution. However, PW-2, the mediator, supported the case of the prosecution. He has no reason to depose false. The fact that AO dealt with the tainted amount is admitted by him with another defence as if he unofficially got certain works got done by the villagers and PW-1 sent the amount through LW-2 K. Rammohan Rao, as such, he took over the amount to distribute to villagers. So, the presumption under Section 20 of the Prevention of Corruption Act, 1988 is applicable. AO examined defence witnesses and their evidence is not at all convincing. The learned Special Judge unnecessarily believed the defence theory and acquitted the AO, as such, there are grounds to allow the appeal. 12. Sri A. Hari Prasad Reddy, learned counsel appearing for the respondent, would contend that the learned Special Judge thoroughly appreciated the evidence on record. The own prosecution witnesses admitted the fact that PW-1 did not complete the work within the time stipulated and also made application seeking extension of time. So, unless and until, the work was completed in all respects, the bill pertaining to PW-1 could not be processed. The own prosecution witnesses admitted the fact that PW-1 did not complete the work within the time stipulated and also made application seeking extension of time. So, unless and until, the work was completed in all respects, the bill pertaining to PW-1 could not be processed. The evidence on record proves the fact that no official favour was pending with AO in respect of PW-1 prior to the date of trap and as on the date of trap. PW-1 never deposed against AO that he demanded and accepted the bribe. On the other hand, according to PW-1, he was mislead by LW-2 K. Ramamohan Rao, who died as if AO was demanded the bribe amount. So, the alleged demand prior to the date of trap or subsequent to the date of trap was not proved. AO accepted Rs. 1,00,000/- from LW-2 K. Ramamohan Rao, who died as PW-1 had to reimburse the villagers and AO examined respective witnesses to prove the defence theory. He would contend that as allegations of demand and acceptance of bribe was not proved, presumption under Section 20 of the Prevention of Corruption Act, 1988 has no application. Even otherwise, AO could successfully discharge the burden. There are no grounds to interfere with the reasoned judgment of the learned Special Judge, as such, the Criminal Appeal has to be dismissed. 13. In the light of the above rival contentions of both parties, firstly, this Court would like to deal with as to prosecution had proved before the Court below successfully that the official favour in respect of the work of PW-1 was pending with AO. 14. The testimony of PW-1 is such that his cousin by name K. Ramamohan Rao informed him that to pass the final bill, AO was demanding the bribe amount, for which he expressed his inability to do so. Then, Ramamohan Rao suggested him to give a report to ACB. Since he happened to know the Director General of Police, he gave report to the said Director General of Police, who entrusted it to Dy. Superintendent of Police, ACB. Ex.P.8 is his report. 15. In fact, as seen from the evidence of PW-1, his evidence is such that he undertook civil contract works of Krishna Eastern Bank canal contract to a tune of Rs. 1,05,00,000/-. It has to be completed in three reaches and also scours filling at vents 1 to 50. Superintendent of Police, ACB. Ex.P.8 is his report. 15. In fact, as seen from the evidence of PW-1, his evidence is such that he undertook civil contract works of Krishna Eastern Bank canal contract to a tune of Rs. 1,05,00,000/-. It has to be completed in three reaches and also scours filling at vents 1 to 50. Through PW-1, prosecution got marked Ex.P.1, P.2 to P.4 and further Exs.P.5 to P.7-supplementary agreements. He spoken to the fact that previously he received part payment bill for Rs. 33,00,000/-. Then, K. Ramamohan Rao intimated to him that even prior to part payment also AO demanded bribe and that if the demanded bribe was not paid, final bill may not be drawn. He further spoken the factum of handing over of Rs. 1,00,000/- to K. Ramamohan Rao towards bribe, etc. 16. It is altogether different aspect that he did not support the prosecution in other aspects and was cross examined by the Special Public Prosecutor and during the course of cross examination by the Special Public Prosecutor what was elicited is only the fact that he voluntarily gave Ex.P.8, etc. So, even in his chief examination he did not state clearly throughout necessary particulars explaining the manner on which date he commenced the work and on which date he completed the work and ultimately on which date he submitted the final bill, etc. 17. As seen from the case of the prosecution, PW-1 got two civil contract works relating to filling of scours in front of Prakasam Barrage and vents 1 to 50 on tender basis. There is no dispute that he entered into agreement with the department under Ex.P.1. The stipulation period to complete the work was within 45 days from 20.06.1999. He could start the work only in July, 1999 and could complete 1/3rd of the work and he filed an application for extension of time and this is borne out by record. In respect of the second work, it was under three packages and he entered into agreement under Exs.P.2 to P.4 and he has to complete by 26.06.1999 i.e. within 45 days from the date of agreement and even he could not start the work. He made an application seeking extension of time on 07.07.1999 which was sanctioned on 16.02.2000. There is no dispute regarding the receipt of cheque to a tune of Rs. He made an application seeking extension of time on 07.07.1999 which was sanctioned on 16.02.2000. There is no dispute regarding the receipt of cheque to a tune of Rs. 33,65,592/- towards part completion of work. 18. To succeed in the aspect of pending of the official favour, prosecution was supposed to establish that PW-1 could complete the rest of a work in all aspects, as such, bills were pending with AO. The evidence of PW-1, as pointed out, did not disclose the manner in which he completed his task. 19. Coming to the evidence of PW-3, it is clear from his evidence that he measured the work in respect of Ex.P.1. He did not prepare the bill since the contractor did not obtain permission from the Superintendent Engineer. 20. PW-3 admitted in cross examination about Ex.D.1 which is of his statement, dated 09.07.2000, explaining the procedure for Ex.P.1 work. According to him, he gave original Ex.D.1 to Dy. Superintendent of Police. As seen from Ex.P.1, it is mentioned that PW-1 is not entitled for the bill amount unless he was permitted by the Superintendent Engineer. 21. The evidence of PW-4 is also similar on the lines of the evidence of PW-3. According to the evidence of PW-4, he took measurements of the work carried by PW-1 which was checked by PW-3. He testified in cross examination that he did not prepare the bill as on 25.07.2000 for the reason that extension of time application presented by PW-1 to carry on work was pending with Superintendent Engineer. 22. There is evidence of PW-5 explaining that the work relating to Exs.P.2 to P.4 was not completed and the final bill was not prepared. It is he (PW-5), who handed over Exs.P.2 to P.4, P.7 to P.9 to the Dy. Superintendent of Police. AO got elicited during his cross examination that because PW-1 has to get approval from the Superintendent Engineer for extension of time, the bills under Exs.P.2 to P.4 were not prepared. 23. PW-6, Assistant Engineer, stated that bill amount was paid for the work carried on by PW-1. 24. PW-7 testified that as on the date of trap, the bill amount was paid to PW-1 for the works carried on by him. The prosecution examined PW-10, who testified that by 26.06.1999 PW-1 did not complete the work, as such, he sought for extension of time on 16.02.2000. 24. PW-7 testified that as on the date of trap, the bill amount was paid to PW-1 for the works carried on by him. The prosecution examined PW-10, who testified that by 26.06.1999 PW-1 did not complete the work, as such, he sought for extension of time on 16.02.2000. In respect of the work executed by him to a specified extent, the bills were paid. Even the evidence of PW-11 or PW-12 also means that for want of extension of time, the bill could not be processed and PW-1 submitted application for extension of contract period and subsequent to the trap only, he submitted application for extension of time. 25. By virtue of the examination of the above witnesses and looking into the documents, it is crystal clear that as on the date of the so-called allegations of demand of bribe and as on the date of trap, PW-1 did not complete the work entrusted to him within the stipulated period and insofar as the works done by him prior to the trap, the entitled amounts were duly paid to him. It is clear from the evidence of the above witnesses, subsequent to the trap, his application for extension of time was allowed and thereafter, the bill amount was paid. They categorically explained that in view of the extension of time application for agreement period relating to PW-1 was pending with Superintendent Engineer, the officials of the department were prevented to process the bills relating to PW-1. The prosecution by standing its own legs and by virtue of the above evidence let in failed to prove categorically that the processing of the final bills of PW-1 was pending with AO as on the date of allegations of demand prior to the trap and on the date of trap. Virtually, the evidence adduced by the prosecution to establish that AO demanded bribe so as to process the final bills relating to PW-1 is very weak in nature and necessary details are missing from PW-1 and prosecution examined the above witnesses, whose evidence is not pin pointing out that the official favour in respect of the final bills of PW-1 was pending with AO as on the date of trap. 26. Now, another aspect to be seen here to decide this appeal is as to whether on 24.07.2000 at 8-00 a.m. AO demanded PW-1 to pay bribe of Rs. 26. Now, another aspect to be seen here to decide this appeal is as to whether on 24.07.2000 at 8-00 a.m. AO demanded PW-1 to pay bribe of Rs. 5,00,000/- and reduced to Rs. 3,00,000/- by asking to pay Rs. 1,00,000/- on 25.07.2000 and the balance thereof of Rs. 2,00,000/- when the cheque for final bill amount is given to him and that he further demanded PW-1 on 25.07.2000 during post-trap to pay the bribe and accepted Rs. 1,00,000/- from PW-1. The prosecution should also prove that the AO obtained undue advantage by demanding and collecting the said amount within the meaning of Section 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988. 27. To decide the same, firstly, it is pertinent to look into Ex.P.8. The substance of Ex.P.8 in this regard i.e. relates to things happened prior to the date of trap is that on the date of Ex.P.8 or by the date of Ex.P.8, PW-1 finished the contract and AO on that day demanded bribe of Rs. 5,00,000/- to process the final bill and later reduced to Rs. 3,00,000/- and Rs. 1,00,000/- to be paid on 25.07.2000 and the rest of Rs. 2,00,000/- to be paid at the time of final clearance. So, basing on the contents of Ex.P.8, investigating officer laid a trap and could successfully trap the AO, according to the case of the prosecution. When it comes to the evidence of PW-1, he did not support the case of the prosecution. He deposed on crucial aspects that LW-2 K. Ramamohan Rao used to look after the work carried on by him, who is his cousin brother. He was told by him prior to payment of the part final bill, AO demanded bribe amount of Rs. 1,00,000/- during the 1st week of July, 2000 and that if the amount was not paid, part payment bill will not be drawn. So, he gave Rs. 1,00,000/- to LW-2 Ramamohan Rao and on 14.07.2000 LW-2 Ramamohan Rao gave a cheque for an amount of Rs. 33,00,000/- which is relating to earlier bill. In respect of the final bill, he claimed that Ramamohan Rao told him that in order to pass final bill, AO demanded Rs. 5,00,000/- on 18th or 19th of July, 2000 and that he expressed his inability. He asked LW-2 Ramamohan Rao to inform his feelings to AO. 33,00,000/- which is relating to earlier bill. In respect of the final bill, he claimed that Ramamohan Rao told him that in order to pass final bill, AO demanded Rs. 5,00,000/- on 18th or 19th of July, 2000 and that he expressed his inability. He asked LW-2 Ramamohan Rao to inform his feelings to AO. On 20.07.2000 LW-2 Ramamohan Rao came back and told him that unless he paid Rs. 5,00,000/- final bill amount will not be drawn. Again he instructed LW-2 Ramamohan Rao to meet AO again. Later, LW-2 Ramamohan Rao came back and informed that atleast he has to pay Rs. 2,00,000/- bribe and firstly he has to pay Rs. 1,00,000/- and the rest of amount will be paid at a later time. So, LW-2 Ramamohan Rao suggested to him to give a report, as such, he gave Ex.P.8. 28. As rightly pointed out by the learned Special Judge, the contents of Ex.P.8 are voluntarily made by PW-1. PW-1 was read over the contents of Ex.P.8 during pre-trap proceedings. Apart from this, he gave a statement under Section 164 of Criminal Procedure Code before the jurisdictional Magistrate adhering to the contents of Ex.P.8 as well as the post-trap proceedings. So, it is a case where PW-1 deliberately deposed false for which the learned Special Judge rightly ordered to lodge a complaint before jurisdiction Magistrate against PW-1 which is altogether a different aspect. However, the fact that PW-1 gave false evidence deviating from the contents of Ex.P.8 as well as the post-trap proceedings, would not enable this Court to take the contents of Ex.P.8 and the contents of Ex.P.8 as gospel truth. So, the contents of Ex.P.8 and the events alleged in post-trap cannot be read in substantive evidence, insofar as the case of the prosecution is concerned, as projected in Ex.P.8 and as projected in Ex.P.11, post-trap proceedings and insofar as the role attributed against PW-1 is concerned. So, virtually, the evidence is missing that prior to date of trap i.e. at the time of processing of the part payment of the bill and also prior to the date of trap and on the date of trap, AO demanded PW-1 to pay bribe as alleged. So, the evidence is wanting in this regard. 29. So, virtually, the evidence is missing that prior to date of trap i.e. at the time of processing of the part payment of the bill and also prior to the date of trap and on the date of trap, AO demanded PW-1 to pay bribe as alleged. So, the evidence is wanting in this regard. 29. The prosecution sought to prove the guilt against the AO as regards the allegations of demand and acceptance of bribe by relying upon the evidence of mediators i.e. PW-2 and the trap laying officer, PW-13. It is to be noticed that PW-2, the mediator, was not a witness to the events happened between AO and PW-1. It is no doubt true that even the evidence of PW-1, the defacto-complainant as well as the evidence of PW-2, the mediator and the evidence of PW-13, the trap laying officer, means that the Dy. S.P. conducted pre-trap proceedings explaining to the mediators about the importance of Phenolphthalein test and applied Phenolphthalein powder to the tainted currency and kept the amount in the pocket of PW-1 asking him to pay the amount to AO on his further demand. Though PW-1 turned hostile to the case of the prosecution, but, the evidence of PW-2 and the trap laying officer (PW-13) means during the post-trap on receiving pre-arranged signal, they rushed into the house of AO and subjected his hands to chemical test which yielded positive result. AO produced the tainted amount from his trouser pocket. So, the fact that AO dealt with tainted amount is not in dispute. The prosecution has sought to prove the guilt against the AO by relying upon a presumption under Section 20 of the Prevention of Corruption Act, 1988. 30. At this juncture, it is pertinent to extract here Section 20 of the Prevention of Corruption Act, 1988: 20. So, the fact that AO dealt with tainted amount is not in dispute. The prosecution has sought to prove the guilt against the AO by relying upon a presumption under Section 20 of the Prevention of Corruption Act, 1988. 30. At this juncture, it is pertinent to extract here Section 20 of the Prevention of Corruption Act, 1988: 20. Presumption where public servant accepts gratification other than legal remuneration: (1) Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn. 31. (3) Notwithstanding anything contained in sub-sections (1) and (2), the court may decline to draw the presumption referred to in either of the said sub-sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn. 31. It is to be noticed that recently, the Hon’ble Supreme Court in the case of Neeraj Dutta vs. State (Government of NCT of Delhi), (2022) SCC Online SC 1724 dealing with a batch of Revisions and Criminal Appeals when the matter was referred to the Constitutional Bench as to the quality of proof in case where the complainant turned hostile or where the complainant died and dealing with Sections 7 and 13(1)(d) r/w 13(2) and further Section 20 of Prevention of Corruption Act, 1988 gave certain observations. The Hon’ble Supreme Court ultimately gave series of directions. The Hon’ble Supreme Court categorically held that proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is sin qua non in order to establish the guilt of the AO, Public servant, under Sections 7 and 13(1)(d) r/w 13(2) and further Section 20 of Prevention of Corruption Act, 1988. Prosecution has to first prove the demand of illegal gratification and subsequent acceptance, as a matter of fact. The Hon’ble Supreme Court dealt with the aspects in Section 7 of the Prevention of Corruption Act and held that “if there is an offer to pay the bribe by the bribe-giver without there being any demand from the public servant and latter simply accept the offer and received 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. 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. 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. The Hon’ble Supreme Court further held that in the event the complainant turned hostile or has died or is unavailable to let in evidence, demand of illegal gratification can be proved by letting any evidence of any other witnesses either orally or documentary evidence or the prosecution can prove the case by circumstantial evidence. 32. Dealing with the presumption under Section 20 of the Prevention of Corruption Act, the Hon’ble Supreme Court further held that on proof of the facts in issue of Section 7, Section 20 mandates the Court to raise the presumption that the illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The Hon’ble Supreme Court also held that to raise the presumption under Section 20 of the Act, prosecution should prove the foundational facts. 33. Keeping in view of the above, I would like to appreciate as to whether presumption under Section 20 of the Prevention of Corruption Act can be available to the case of the prosecution. Needless to point out here that prosecution failed to prove the foundational facts. Foundational facts are that AO demanded PW-1 to pay bribe prior to the date of trap especially at the time of processing of the part of the bill and also prior to the trap and also on the subsequent date of trap. So, as pointed out as PW-1 turned hostile, there remained nothing to prove foundational facts. PW-2, the mediator and the PW-13, the trap laying officer, were not the witnesses to the events that took place between AO and PW-1 actually. They employed LW-2 K. Ramamohan Rao, as accompanying witness. 34. It is to be noticed that the investigating officer used the close relative of PW-1 as an accompanying witness. To the misfortune to the prosecuting agency, LW-2 Ramamohan Rao died and is no more now. So, LW-2 Ramamohan Rao was the person who was instructed by ACB, Dy. S.P. to observe the events between AO and PW-1, as he died, there remains nothing to speak what happened between AO and PW-1 actually. To the misfortune to the prosecuting agency, LW-2 Ramamohan Rao died and is no more now. So, LW-2 Ramamohan Rao was the person who was instructed by ACB, Dy. S.P. to observe the events between AO and PW-1, as he died, there remains nothing to speak what happened between AO and PW-1 actually. PW-1 turned hostile to the case of the prosecution as if he handed over the amount to LW-2 Ramamohan Rao, who went into the house of AO and returned back and relayed signal. So, there is no direct evidence forthcoming to prove the demand and acceptance of bribe. There were no witnesses who actually witnessed the events in the house of AO in this regard. So, the fact remained is that the foundational facts are not proved by the prosecution, as such, in my considered view, the benefit under Section 20 of the Act is not available. Even otherwise, the AO thinking that there is a presumption in favour of the prosecution, adduced the defence evidence by examining DWs. 1 and 2 and got marked several documents. Letting of evidence by AO is in tune with the contents of written statement. Evidence of DW-1 means that as PW-1 could not complete the work within 45 days in respect of certain works entrusted to him, they pressurized the AO and he, Sreeramachandra Murthy, Satyanarayana Murthy, Poornachandra Rao and others requested him to get the work executed by PW-1 and influenced AO through MLA and later AO insisted PW-1 to start the work for which he expressed his inability. So, DW-1 executed some works. Likewise Poornachandra Rao, Sriramachandra Murthy and Satyanarayana Murthy also executed some works. They were due of Rs. 1,92,500/-. Even after receipt of Rs. 34,00,000/- PW-1 did not pay the amount. AO stood as surety for the episode. Then, they approached AO. AO told PW-1 to clear their amounts. On 25.07.2000 at 6-00 p.m. they came to know that PW-1 handed over a sum of Rs. 1,00,000/- to AO. Later, they insisted PW-1 to pay their amounts. On 02.08.2000 PW-1 paid Rs. 1,92,500/- by way of cheque to him. PW-1 asked stamp receipt and he handed over to PW-1. Ex.C.1 is the Photostat copy of the receipt. 35. The evidence of DW-2 supported the evidence of DW-1 and claimed that PW-1 issued certain cheques and made certain payments. He paid Rs. 1,92,500/- to M. Bujji, Rs. On 02.08.2000 PW-1 paid Rs. 1,92,500/- by way of cheque to him. PW-1 asked stamp receipt and he handed over to PW-1. Ex.C.1 is the Photostat copy of the receipt. 35. The evidence of DW-2 supported the evidence of DW-1 and claimed that PW-1 issued certain cheques and made certain payments. He paid Rs. 1,92,500/- to M. Bujji, Rs. 1,25,700/- to P. Sreeramachandra Murthy, Rs. 21,500/- to Ch. Poornachandra Rao and Rs. 1,06,200/- to S. Satyanarayana Murthy. Exs.X.1 to X.4 are the original cheques issued by PW-1. During the cross examination of DWs. 1 and 2, the genuinity of the payments are not under dispute. So, the factum of payments made by PW-1 to DWs. 1 and 2 and others is established. 36. It is well settled that the standard of proof to prove the defence of AO is not same as that of standard of proof with which the prosecution has to prove the guilt. Prosecution was supposed to prove the guilt against AO beyond reasonable doubt. AO has to probabalize his defence by preponderance of probabilities. So, AO was able to probabalise the payments made by PW-1 to DWs. 1 and 2 and others by adducing defence evidence and DWs. 1 and 2 supported the theory of AO. 37. Under the circumstances, AO was able to probabalize his defence theory. Even otherwise, as pointed out, prosecution miserably failed to prove the foundational facts, as alleged in Ex.P.8 and as alleged in post-trap to have the benefit of presumption under Section 20 of the Prevention of Corruption Act, 1988. So, as held by the Hon’ble Supreme Court in Neeraj Dutt’s case (supra), the duty cast upon the prosecution to prove the foundational facts. It is not a case where AO voluntarily accepted the bribe amount, but, allegations are of demand and acceptance. The Hon’ble Supreme Court illustrated the incidents where a bribe can be accepted without any demand and where a bribe would be accepted with demand. 38. Having regard to the above, I am of the considered view that the prosecution miserably failed to prove the allegations of demand and acceptance of bribe by AO. 39. The Hon’ble Supreme Court illustrated the incidents where a bribe can be accepted without any demand and where a bribe would be accepted with demand. 38. Having regard to the above, I am of the considered view that the prosecution miserably failed to prove the allegations of demand and acceptance of bribe by AO. 39. As seen from the judgment of the leaned Special Judge, SPE/ACB Cases, Vijayawada, the learned Special Judge to arrive at a conclusion that official favour in respect of the work of PW-1 was not pending with AO looked into the evidence in proper perspective and appropriately gave findings that prosecution failed to prove the said aspects. The learned Special Judge on valid reasons, observed that prosecution did not prove the allegations of demand and acceptance of bribe, as such, the presumption under Section 20 of the Prevention of Corruption Act, 1988 cannot be made applicable to the case on hand and further observed that even otherwise AO was able to probabalize the defence theory basing on the standard of proof of preponderance of the probabilities. 40. Having considered the above, I am of the considered view that absolutely there are no grounds to interfere with the judgment of the acquittal recorded by the learned Special Judge for SPE/ACB Cases, Vijayawada on thorough appreciation of the evidence on record. 41. In the result, the Criminal Appeal is dismissed. 42. Consequently, miscellaneous applications pending, if any, shall stand closed.