JUDGMENT : 1. The appellant is questioning his conviction recorded under Sections 7 and Section 13(1)(d) punishable under Section 13(2) of the Prevention of Corruption Act and sentencing him to undergo rigorous imprisonment for a period of six months and one year respectively and also to pay fine of Rs.300/- under each count vide judgment in C.C.No.36 of 2003 dated 24.07.2007 passed by Principal Special Judge for SPE & ACB Cases, City Civil Court, Hyderabad. 2. Briefly, the case of the prosecution is that the appellant was working as Line Inspector in the office of A.A.E, A.P. Transco, Bodhan, demanded an amount of Rs.300/- from the defacto complainant (not examined during trial since dead) for installation of new meter. Application was made by enclosing Form-A applications under Exs.P9 and P10 along with DDs Exs.P5 to P7. The defacto complainant allegedly met the appellant 10 to 12 times. However, the appellant insisted that Rs.300/- has to be paid failing which work cannot be done. The said demand was made on 19.08.2002 at 2.30 p.m. A complaint was preferred by the complainant to the ACB DSP the same day. 3. The Deputy Superintendent of Police, ACB secured the presence of two independent mediators, P.W.3 and another and pre-trap proceedings were conducted in the presence of trap party on 20.08.2002 from 8.00 a.m. and concluded at 9.00 a.m. The trap-party thereafter proceeded to the office of ADE (Operations) in Bodhan along with P.W.1, who is friend of the defacto complainant and also the author of Ex.P1. Both P.W.1 and the defacto complainant entered into the office and waited at office area since the appellant was not present. Appellant called the office and also talked to the defacto complainant and to come to a place where transformer installation was going on. The same was informed to trap party and all the trap party members went to the location. Ten minutes after the trap party went there, the appellant arrived at the place where transformer work was going on. Complainant wished the appellant and the appellant wished both defacto complainant and P.W.1 and asked whether he brought the money. The defacto complainant gave the said amount of Rs.300/- from his shirt pocket and handed over to the appellant, who took the said amount and kept in his shirt pocket. Complainant wished the appellant and the appellant wished both defacto complainant and P.W.1 and asked whether he brought the money. The defacto complainant gave the said amount of Rs.300/- from his shirt pocket and handed over to the appellant, who took the said amount and kept in his shirt pocket. Signal was relayed indicating acceptance of bribe and the DSP and other trap party confronted the appellant regarding the bribe. Having conducted post trap proceedings, mediators’ report Ex.P3 was drafted in the ADE’s office and also rough sketch was drawn which is Ex.P4. 4. After conclusion of the post trap proceedings investigation was handed over to the Inspector, who concluded investigation and filed charge sheet after obtaining sanction. 5. Learned Special Judge examined P.Ws.1 to 8 and marked Exs.P1 to P22 on behalf of the prosecution. Appellant examined D.W.1 on his behalf and Exs.X1 to X6 documents were marked on being called for by the Court. 6. Learned Special Judge found that though the complainant died and was not examined, the other evidence corroborated with the case of the prosecution that the appellant demanded and accepted an amount of Rs.300/- from the defacto complainant and accordingly convicted the appellant. 7. Learned counsel appearing for the appellant would submit that the defacto complainant was not examined and P.W.1, who was the scribe of Ex.P1 was not witness to the alleged demand of the appellant. In the said circumstances, it cannot be said that demand was proved by the prosecution. He further submitted that Exs.P9 and P10 Form-A applications were in fact planted by the ACB and so also DDs which were enclosed shown as that of the defacto complainant. There is no signature of the appellant on Exs.P9 and P10. In fact, it is not mentioned in Ex.P3 post trap proceedings that the documents pertaining to the defacto complainant were seized from the scooter dicky. There are no proceedings to the seizure of the said documents. In the said circumstances, firstly there being no proof of demand and secondly, applications Exs.P9 and P10 not being given to the appellant, the prosecution not being able to connect the appellant with any kind of official work of the defacto complainant, the case of the prosecution has to fail. The ACB had in fact fabricated the case of recovery of Exs.P5 to P11 from the scooter dicky. The ACB had in fact fabricated the case of recovery of Exs.P5 to P11 from the scooter dicky. Though the said applications were addressed to the Assistant Engineer, the ACB tried to show that the appellant was competent to receive the said applications. Lastly, P.W.7, who was not shown in the list of witnesses filed along with the charge sheet, was produced before the Court to speak about the procedure stating that the appellant was responsible. Such evidence of P.W.7 cannot be considered. 8. Learned counsel for the appellant relied on the judgments of Hon’ble Supreme Court; i) C.M.Girish Babu v. CBI, Cochin, High Court of Kerala, (2009)3 Supreme Court Cases 779 in which the Hon’ble Supreme Court held that mere recovery of tainted amount in the absence of any other corroborating evidence cannot be made basis to convict. Further, the burden that shifts on to the accused can be rebutted by preponderance of probability. Similar view was taken in the judgment in the case of State of Kerala and another v. C.P.Rao, (2011) 6 Supreme Court Cases 450, A.Subair v. State of Kerala, (2010(1)ALD(Crl.) 497 (SC), P.Satyanarayana Murthy v. District Inspector of Police, (AIR 2015 Supreme Court 3549). In Hari Dev Sharma v. State (Delhi Administration), AIR 1976 Supreme Court 1489 (Supreme Court), the Hon’ble Supreme Court found that when vital part of the prosecution case was not probable, no conviction can be recorded on the basis of recovery. 9. Learned Special Counsel relied on the judgment of Hon’ble Supreme Court in the case of Neeraj Dutta v. State (Government of NCT of Delhi), 2022 LiveLaw (SC) 1029 and argued that hostility of the complainant cannot be made basis to record acquittal and the Court can rely upon the other evidence adduced by the prosecution to infer demand of bribe. He also relied on the judgment of Hon’ble Supreme Court in the case of N.Narsinga Rao v. State of Andhra Pradesh, Appeal (Crl.)719 of 1995, dated 12.12.2000 and argued that the presumption can be drawn on the basis of the amount being recovered from the accused. He also relied on the judgment of Hon’ble Supreme Court in the case of T.Shankar Prasad v. State of A.P., (2004) 3 Supreme Court Cases 753 wherein the Hon’ble Supreme Court held that presumption under Section 20 of the Act is a legal presumption. He also relied on the judgment of Hon’ble Supreme Court in the case of T.Shankar Prasad v. State of A.P., (2004) 3 Supreme Court Cases 753 wherein the Hon’ble Supreme Court held that presumption under Section 20 of the Act is a legal presumption. However, the said presumption is rebuttal by proof and not by mere explanation. 10. The complainant in the present case was not examined on account of his death. It has to be seen whether the evidence adduced by the prosecution is sufficient to infer the demand and acceptance by the appellant to prove his guilt. 11. Ex.P1 was marked during the course of trial by P.W.1, who was the author of Ex.P1. Though, it is mentioned in Ex.P1 that demand was made and the defacto complainant was made to go around the appellant 10 to 12 times, P.W.1 is not a witness to the said demand and merely being scribe on the basis of information provided by the defacto complainant, P.W.1’s evidence is not sufficient to infer the factum of demand. 12. On the date of trap, the defacto complainant along with P.W.1 who were members of the trap party went to the office of the appellant. Appellant was not found in his office and at that time, the appellant made phone call to his office. The defacto complainant talked to him over phone. Appellant asked the defacto complainant to come to Rasikpet Area, Transformer R.R.24 and pay the bribe amount. Accordingly, the said information was given to the trap party and the defacto complainant and P.W.1 went to the place where the transformer work was going on. If the appellant had nothing to do with the defacto complainant, the question of asking the defacto complainant to come to the place where the work was going on would not arise. It is not as though the defacto complainant and the trap party knew where the appellant was. No reasons are given as to why the appellant called the defacto complainant to the place where the work was going on. 13. After ten minutes, the appellant arrived and on his demand, according to P.W.1, the amount was given to the appellant, who put the amount in his shirt pocket. Thereafter, signal was relayed to the trap party members, who confronted and questioned the appellant. 13. After ten minutes, the appellant arrived and on his demand, according to P.W.1, the amount was given to the appellant, who put the amount in his shirt pocket. Thereafter, signal was relayed to the trap party members, who confronted and questioned the appellant. The sodium carbonate solution test on the hands of the appellant turned positive and money was handed over by the appellant from his shirt pocket. During the course of the proceedings, PW.7 was examined by the DSP, who stated that the applications for domestic connections will be received by the line Inspector/appellant and the line inspector would inspect the house and advise the consumers to obtain DDs. Accordingly, the consumers obtain DDs and submit the same along with the applications to the line inspector. 14. On the trap day, P.W.1’s evidence gains significance. P.W.1 was a witness to going to the office of the appellant and at the instance of the appellant, defacto complainant and P.W.1 went to the place where the appellant had called him. On demand, according to P.W.1, the defacto complainant handed over the amount. As already stated, there is no reason why the appellant would have called the defacto complainant to the place where the transformer work was going on. Though PW.7 was not cited, in fact he was examined during the course of post trap proceedings. P.W.7 had narrated that it was the appellant who was responsible for receiving applications and accordingly provide necessary meters to the domestic consumers. Further Ex.P12 was the seizure proceedings of the applications and DDs (EXP5 to EXP10) from the scooter dickey of appellant on 20.08.2002 itself. There is an acknowledgment by the appellant on EXP12 that he has received the said copy on 20.08.2002. The seizure proceedings Ex.P12 was part and parcel of Ex.P3 post trap proceedings. Since Ex.P12 was prepared separately, for the reason of not mentioning seizure in Ex.P3, it will not cast any doubt on the prosecution case being correct. Further, the seizure of applications from the scooter dickey was stated by P.W.1, D.S.P and P.W.3, an independent witness. 15. Learned counsel argued that the DDs which were recovered did not pertain to the applications given by the defacto complainant. Admittedly, applications Ex.P9 and P10 were found in the scooter dickey of the appellant. Further, the seizure of applications from the scooter dickey was stated by P.W.1, D.S.P and P.W.3, an independent witness. 15. Learned counsel argued that the DDs which were recovered did not pertain to the applications given by the defacto complainant. Admittedly, applications Ex.P9 and P10 were found in the scooter dickey of the appellant. In the said circumstances of, i) the appellant calling the defacto complainant to the place where the work was going on; ii) the procedure for fixing the meter was after giving application to the appellant who was the person responsible to receive the applications and accordingly, provide the meter; iii) the applications found in the scooter dickey of the appellant and seized at the time of post trap proceedings; iv) Except denying the seizure of the applications, no reasons are given as to why the applications would be planted or why the complaint would be made by the defacto complainant is not explained; v) money was recovered at the instance of the appellant and the appellant had handed over the said money from his shirt pocket. If the evidence of thrusting was to be believed, the question of amount being found in the shirt pocket of the appellant would not arise since the incident has taken place in an open place and if the amount was forcibly thrust, the same would have been refused by the appellant and not found in the pocket. 16. In view of the aforesaid discussions, the appeal fails and accordingly dismissed. The trial Court is directed to cause the appearance of the appellant and send him to prison to serve out the remaining part of sentence. Consequently, miscellaneous applications, if any pending, shall stand closed.