JUDGMENT 1. Appellant/accused feeling aggrieved by judgment on the file of IV Additional District and Sessions Judge (PCA) Belgaum, in Special Case No.164/2011, dtd. 30/11/2013 preferred this appeal. 2. Parities to the appeal are referred with their ranks as assigned in the Trial Court for the sake of convenience. 3. The factual matrix leading to the case of prosecution can be stated in nutshell to the effect that property bearing No.89 of Santi-Bastwad was standing in the name of father of complainant CW-12 Peeraji Gundu Desurkar and as per decree of Prl.Senior Civil Judge and JMFC in OS No.50/2006 was ordered to be mutated in the name of complainant Nagendra Desurkar. Accused was working as secretary in Gram Panchayat Santi-Bastwad village. On 3/7/2009 at 3.30 P.M complainant approached accused for mutating his name to the said property. Accused being public servant demanded illegal gratification of Rs.2, 000.00. On 24/7/2009 in between 12.25 PM to 1.30 PM the accused at his office in Santi-Bastwad village demanded and accepted illegal gratification of Rs.2, 000.00 other than legal remuneration for discharging his official duty for mutating the name of complainant. It is further alleged that accused by abusing his position as public servant in order to discharge his duty obtained pecuniary advantage to the tune of Rs.2, 000.00 for himself and thereby committed criminal misconduct. On these allegations, the Investigating Officer after completion of investigation filed the charge sheet. 4. In response to summons, accused appeared through counsel. The Trial Court on being prima facie satisfied of the charge sheet material framed charges against accused for the offences alleged against him. Accused pleaded not guilty and claim to be tried. Prosecution to prove the allegations made against accused relied on the evidence of PW-1 to 11 and the documents Ex.P.1 to 35, so also got identified MO. Nos.1 to 9. 5. On closure of the prosecution evidence, the statement of accused under Sec. 313 of Cr.P.C. came to be recorded. Accused denied all incriminating material evidence appearing against him and claimed false case is filed. The Trial Court after appreciation of evidence on record convicted the accused for the offences alleged against him and imposed sentence as per order of sentence. 6. Appellant/accused challenged judgement of conviction and order of sentence contending that Trial Court did not appreciate the evidence on record in the light of defence of accused. The Trial Court after appreciation of evidence on record convicted the accused for the offences alleged against him and imposed sentence as per order of sentence. 6. Appellant/accused challenged judgement of conviction and order of sentence contending that Trial Court did not appreciate the evidence on record in the light of defence of accused. There is no any acceptable evidence to prove the demand and acceptance of illegal gratification and the evidence of complainant PW-2 is totally unreliable. The proof of demand and acceptance of illegal gratification is sine qua non to prove the offences alleged against accused. The mere proof of recovery of tainted money from the possession of accused or from his table without proof of any demand no conviction can be sustained for the offences alleged against accused. The evidence of PW-9 co-panch to the entrustment panchanama Ex.P.3 and trap panchanama Ex.P.17, so also the evidence of investigating officer PW.11 cannot be of any assistance to the case of prosecution to prove demand and acceptance of illegal gratification, since their evidence is based on the disclosure said to have been made by complainant PW-2. PW-10 who was working in the same office of accused and issued the receipt Ex.P.29 is proper person to speak on the alleged demand and acceptance of bribe money, but he has not supported the case of prosecution. Therefore, virtually there is no any evidence on record to prove the alleged demand and acceptance of illegal gratification as alleged by the prosecution. The Trial Court without appreciating the factual and legal aspect on the basis of evidence on record proceeded to hold the accused guilty for the offences alleged against him on erroneous recording of reasonings. Therefore, prayed for allowing the appeal and to set aside the judgment of conviction and order of sentence. Consequently to acquit the accused for the offences alleged against him. 7. In response to notice of appeal learned High Court Government Pleader has appeared for respondent. 8. Heard arguments of both sides. 9. Therefore, prayed for allowing the appeal and to set aside the judgment of conviction and order of sentence. Consequently to acquit the accused for the offences alleged against him. 7. In response to notice of appeal learned High Court Government Pleader has appeared for respondent. 8. Heard arguments of both sides. 9. On careful perusal of oral and documentary evidence placed on record by the prosecution, it would go to show that accused is alleged to have demanded and accepted illegal gratification of Rs.2, 000.00 for mutating the name of complainant pursuant to the decree passed by Prl.Senior Civil Judge and JMFC in OS No.50/2006 with respect to property bearing No.89 of Santi-Bastwad village which was earlier standing in the name of father of complainant CW- 12 Peeraji Gundu Desurkar. The prosecution to prove the said allegations mainly relies on the evidence of the complaint PW-2 and PW-9 being panch witness to the entrustment panchanama Ex.P.3 and trap panchanama Ex.P.17 with that of investigating officer PW.11. The said evidence is sought to be corroborated by the evidence of PW.4 Development Officer, PW-6 scribe of the complaint and PW-7 was then Executive Officer of Belgaum Taluk Panchayat. The above referred evidence placed on record by prosecution will have to be now re appreciated in the light of case made by the prosecution. 10. The prosecution to prove that accused is public servant relied on the oral testimony of PW-4, PW-7 and 10. They have deposed to the effect the accused was working as secretary of Santi-Bastwad Gram Panchayat. PW-4 Development Officer has issued attested documents Ex.P.20 to 23. The service particulars of accused Ex.P.35 would go to show that accused was working as secretary Gram Panchayat Santi-Bastwad from 28/4/2006 to till date i.e., 24/7/2009. Accused has given defence statement Ex.P.27 and he has not denied that he was working as secretary of Santi-Bastwad Gram Panchayat for the relevant period as referred above. Therefore, on the basis of said material evidence on record, prosecution has proved that accused is public servant within the meaning of Sec. 2(c) of P.C.Act. 11. The prosecution alleges that complainant PW-2 filed application dtd. 3/2/2009 before the accused Ex.P.12 along with copy of Court order in OS No.50/2006 to record his name in the records of the property bearing No.89 of Santi-Bastwad village. 11. The prosecution alleges that complainant PW-2 filed application dtd. 3/2/2009 before the accused Ex.P.12 along with copy of Court order in OS No.50/2006 to record his name in the records of the property bearing No.89 of Santi-Bastwad village. On 3/6/2009 complainant enquired accused about his work who demanded illegal gratification of Rs.2, 000.00. On 3/7/2009 complainant filed complaint Ex.P.2 and on the basis of said complaint FIR was drawn Ex.P.31. The Investigating Officer secured two panch witnesses CW.3 Anand Gunjikar and CW.4 Dr.Santosh Biradar. The complaint averments were made known to them. Accused produced 20 currency notes of Rs.100.00 denomination amounting to Rs.2, 000.00 and Phenolphthalein powder was smeared on the currency notes by noting down the number of currency notes and accordingly entrustment panchanama Ex.P.3 was prepared, further the entire process was photographed Exs.P.4 to 10. 12. Thereafter, Lokayuktha Police and panch witnesses proceeded to the office of accused. PW.1 complainant and panch witness No.1 Anand Gunjikar were duly instructed to go to the office of accused, further enquire about the work. If money is demanded then, to give money and after accepting the same to give signal by wiping the face with handkerchief. PW.1 was provided with voice recorder and instructed to record the conversation and then along with panch witness No.1 went to the office of accused. After some time, PW.1 gave signal as instructed. On entering the office of accused, PW.11 disclosed his identity and enquired with the complainant who showed the accused and revealed that accused has demanded and accepted bribe money. The bribe money was found on the table of accused, the hand wash of accused was done which turned into pink and the same came to be seized as per MO Nos.3 and 4. The tainted money identified by complainant and panch witness No.1 were recovered as per MO No.1. The trap panchanama Ex.P.17 was accordingly prepared and the entire process of trap was photographed as per Exs.P.14 to P.16. The certified copies of documents from Gram Panchayat Exs.P.20 to P.23 also came to be seized. Accused has given defence statement Ex.P.27. The receipt book is at Ex.P.29 and the relevant receipt is Ex.P.29(a). The assessment extract entering the name of complainant was not given to complainant as on the date of trap. The same was given only on accepting the money from complainant. Accused has given defence statement Ex.P.27. The receipt book is at Ex.P.29 and the relevant receipt is Ex.P.29(a). The assessment extract entering the name of complainant was not given to complainant as on the date of trap. The same was given only on accepting the money from complainant. Therefore, the prosecution alleged that out of the evidence placed on record, demand and acceptance of illegal gratification has been proved. 13. The evidence of PW.2 complainant would go to show that he enquired about his work on 3/6/2009 about mutating his name on the application filed dtd. 2/2/2009. PW.2 claims that on the said day, accused demanded illegal gratification of Rs.2, 000.00 for doing his work. Thereafter, complaint is filed on 23/7/2009. On careful reading of evidence of complainant PW.2, it would go to show that the demand for illegal gratification was made by accused on 3/6/2009 and complaint is filed on 23/7/2009. In between the said period, there is no any evidence of accused having pursued his demand for illegal gratification to do the work of the complainant. It means that other than the claim of complainant that accused has demanded illegal gratification for doing his work, there was no any material before PW.11 Investigating Officer for registering the case against accused. The veracity of complaint allegations regarding accused demanding illegal gratification has not been verified by PW.11 before registering the case. It is true that panch witness No.1 Anand Gunjikar who was said to be the shadow witness went along with the complainant to the office of accused could not be examined before the Court, since he is reported to be dead. Another best witness who would have spoken about the demand and acceptance of bribe money by accused is PW.10. Indisputably, PW.10 was sitting by the side of accused in the same room of the office and issued the receipt Ex.P.13 for having collected Rs.200.00 being charge for supply of the extract. After collecting the money, the extract is furnished to the complainant recording the name of complainant in the records Ex.P.21. However, he has not supported the case of the prosecution. It is in his evidence that after issuing the receipt Ex.P.13, went out of the office for offering Namaz. It is also not in dispute that no any conversation of complainant and accused was recorded in the voice recorder provided to the complainant. However, he has not supported the case of the prosecution. It is in his evidence that after issuing the receipt Ex.P.13, went out of the office for offering Namaz. It is also not in dispute that no any conversation of complainant and accused was recorded in the voice recorder provided to the complainant. The explanation offered is that complainant did not play the audio recorder. 14. The evidence of co-pancha PW.9 who is the witness to the entrustment panchanama Ex.P.3 and the trap panchanama Ex.P.17, so also the evidence of Investigating Officer PW.11 is based on the statement of complainant on the core issue of demand and acceptance of illegal gratification by accused. Indisputably, PW.11 Investigating Officer came to know about accused demanding illegal gratification only when the complaint Ex.P.2 was filed. Similarly, PW.9 co-pancha to entrustment panchanama Ex.P.3 and trap panchanama Ex.P.17 got knowledge about demand of illegal gratification by accused on the disclosure of the same by complainant. Therefore, it can be said that other than the self-serving statement of complainant PW.2, virtually there is no any other evidence which can corroborate the statement of PW.2 on the alleged demand of illegal gratification for doing the work of the complainant. 15. Insofar as recovery of tainted money from the accused is concerned, it is the evidence of PW.2 that accused has received the money by right hand and counted the money by both hands. On hand wash of both hands of accused turned to pink colour and the same were seized MO.Nos.3 and 4. The currency notes with number noted in the entrustment panchanama were recovered which was found on the table of accused MO.No.1. PW.11, the Investigating Officer has also spoken about the recovery of tainted money from the table of accused MO No.1 under the trap panchanama as per Ex.P.17. The defence statement of accused Ex.P.27 would go to show that he has received Rs.2, 000.00 from the complainant and out of it, Rs.200.00 was taken as the fee for furnishing the extract recording the name of complainant. Insofar as remaining amount is concerned, his explanation is that there was dispute between complainant and his father CW.12 Veeraji Desurkar. It was decided in the panchayat to provide maintenance of Rs.2, 500.00 to his father every year. In view of such settlement, money was paid by complainant and not as an illegal gratification. Insofar as remaining amount is concerned, his explanation is that there was dispute between complainant and his father CW.12 Veeraji Desurkar. It was decided in the panchayat to provide maintenance of Rs.2, 500.00 to his father every year. In view of such settlement, money was paid by complainant and not as an illegal gratification. The document at Ex.P.11 was executed on 3/7/2009. The evidence of PW.3 Vice President and PW.5 Member of Santi-Bastwad Panchayat would substantiate the said fact. However, the agreement of maintenance Ex.P.11 and the related evidence in the form of PW.3 and 4 has no any direct nexus to the allegations made against the accused. Complainant alleges that on the said day itself, accused has demanded illegal gratification for doing his work. The said claim of complainant is not supported by any evidence on record. 16. Learned SPP for respondent has argued that accused has withheld furnishing of extract to complainant till the date of trap and the same was issued on the day of trap after accepting bribe money. Accused did not take any action from 3/6/2009 till the date of trap on 24/7/2009. The said delay itself would demonstrate the fact that accused has demanded and accepted illegal gratification and the FSL Report Ex.P.34 substantiate the said fact. 17. Per contra, learned counsel for the accused has argued that complainant has not approached the accused in between the period of 3/6/2009 till 24/7/2009 for taking extract of the property. The resolution is passed on 3/6/2009 itself to record the name of complainant pursuant to his application Ex.P.12. The required fee for furnishing the extract was not paid by the complainant. It was paid only on 24/7/2009 and the receipt is accordingly issued as per Ex.P.13 and the extract also came to be furnished on the same day. 18. Learned Special Public Prosecutor relied on the judgment of Hon'ble Apex Court in Hazari Lal Vs. State (Delhi Administration) reported in AIR 1980 SC 873 in the said case before the Hon'ble Apex Court it was found that the Trial Court did not consider the question whether recovery of the money along with other circumstances would establish that the accused has obtained gratification from any person. The Hon'ble Apex Court found that there is enough other material evidence to substantial the allegation about receiving of illegal gratification. The Hon'ble Apex Court found that there is enough other material evidence to substantial the allegation about receiving of illegal gratification. Therefore, necessary presumption was drawn and confirmed the judgment of Hon'ble Delhi High Court in convicting the accused. Reliance is also placed on another judgment of Hon'ble Apex Court in State of A.P. Vs. R.Jeevaratnam reported in AIR 2005 SC 4095 in the said case before the Hon'ble Apex Court accused was alleged to have demanded bribe for clearing file of tender of complainant. Demands were repeatedly made to complainant upon which accused was called upon in a hotel to receive bribe. Evidence of complainant and also of independent witness showed that when accused came to hotel room, he asked complainant whether he has brought money as demanded. Accused was offered bribe money which he asked to put in brief case. The brief case containing cash came to be seized and there was assurance of accused to clear his file. The connecting evidence was held to be sufficient to establish demand and acceptance of bribe money. Learned Special Public Prosecutor also placed reliance on another judgment of Hon'ble Apex Court in Narendra Champaklal Trivedi Vs. State of Gujarat reported in AIR 2012 SC 2263 . In the said case before the Hon'ble Apex Court bribe money was recovered from possession of accused by raiding party and there was clear evidence of shadow witness that accused has demanded and accepted bribe money. Reliance is also placed on the co-ordinate bench judgment of this Court in Prakash Madiwalayya Mathapati Vs. State of Karnataka reported in AIRONLINE 2020 Kar. 198, wherein, it was found the demand and acceptance of bribe money was proved by evidence on record. The plea of accused that money was thrusted in hands of accused by complainant and that only requisite fee was demanded by accused has not been accepted, since no receipt produced by accused for acceptance of fee and no fees due or payable by complainant. Therefore, the case of prosecution was accepted in proof of demand and acceptance of bribe money. 19. Learned counsel for appellant relied on the latest judgment of Hon'ble Apex Court in Jagatar Singh Vs. State of Punjab reported in 2023 Live Law (SC) 232, wherein it has been observed and held that demand and recovery both must be proved to sustain conviction under the Act. 19. Learned counsel for appellant relied on the latest judgment of Hon'ble Apex Court in Jagatar Singh Vs. State of Punjab reported in 2023 Live Law (SC) 232, wherein it has been observed and held that demand and recovery both must be proved to sustain conviction under the Act. Conviction set aside as demand was not proved. In holding so, the Hon'ble Apex Court has referred to the guidelines laid down by the Constitutional Bench judgment in Neeraj Dutta Vs. State (GOVT. of N.C.T. of Delhi) reported in 2023 live law (SC) 211, wherein it has been held that 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 in 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 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. It has been clarified that presumption in law under Sec. 20 of the Act is distinct from presumption of fact, as presumption of law is mandatory and presumption of fact is discretionary in nature. It is there after, Neeraj Dutta case referred above came to be disposed of on 17/3/2023 in Crl.A. No.1669/2009 reported in 2023 live law (SC) 211 holding that there are not circumstances brought on record which will prove the demand for gratification. Therefore, the ingredients of the offence under Sec. 7 of the P.C Act were not established and consequently, the offence under Sec. 13(1)(d) will not be attracted. 20. Learned counsel for appellant place reliance on another judgment of Hon'ble Apex Court in K.Shanthamma Vs. The State of Telangana reported in 2022 Live Law (SC) 192, wherein it has been observed and held that " The proof of demand of bribe by a public servant and its acceptance by him is sine qua non for establishing the offence under Sec. 7 of the PC Act. The failure of the prosecution to prove the demand for illegal gratification could be fatal and mere recovery of the amount from the person accused of the offence under Sec. 7 or 13 of the Act would not entitle his conviction there under". The failure of the prosecution to prove the demand for illegal gratification could be fatal and mere recovery of the amount from the person accused of the offence under Sec. 7 or 13 of the Act would not entitle his conviction there under". In view of the principles enunciated in the afore- mentioned latest judgment of Hon'ble Apex Court, it is evident that proof of demand and acceptance of bribe money is sine quo non and failure of the prosecution to prove any one of them will not constitute the offence under Sec. 7 and 13(1)(d) of the Act. 21. In the present case looking to the facts as narrated above, it is evident that complainant filed application dtd. 2/2/2009 Ex.P.12 with the copy of the order of the Court in OS No.50/2006. The application was considered in the Panchayat meeting held on 3/6/2009. Indisputably the meeting of Panchayat could not be held due to prevailing code of conduct at that point of time. The Panchayat has passed resolution dtd. 3/6/2009 to record the name of complainant in the records. It appears that there was dispute between complainant and his father regarding payment of maintenance amount and they were called to Panchayat office and Ex.P.11 maintenance agreement was entered on 3/7/2009. Complainant alleged that it is on the said day accused demanded bribe money in the office itself. However to substantiate the said fact, there is absolutely no any evidence placed on record by the prosecution. There is also no any evidence that accused kept on pursuing his demand of bribe money for doing the work of complainant from 3/7/2009 till the date of filing complaint on 23/7/2009 and PW.2 complainant having contacted the accused in between the said period for getting his work done, but the accused refused to do the work, since the demanded money was not paid to him. It is not in dispute that panchayat Santi-Bastwad had already passed resolution dtd. 3/6/2009 to record the name of the complainant in pursuance of his application Ex.P.12 dtd. 2/2/2009. The complainant was expected to deposit or pay the requisite fee for obtaining the extract. There is no evidence to show that PW.2 complainant offered the said requisite fee and paid the fee prior to 24/7/2009. 3/6/2009 to record the name of the complainant in pursuance of his application Ex.P.12 dtd. 2/2/2009. The complainant was expected to deposit or pay the requisite fee for obtaining the extract. There is no evidence to show that PW.2 complainant offered the said requisite fee and paid the fee prior to 24/7/2009. The receipt and panchayat document Ex.P.13 from the receipt book Ex.P.29, the requisite fee was paid only on 24/7/2009 and on that day itself, the extract recording the name of complainant Ex.P.21 was furnished to the complainant. Therefore, the contention of learned SPP that extract at Ex.P.21 was issued only on accepting the bribe money cannot be accepted in the absence of there being demand of bribe money on the day of trap as claimed by the prosecution. There is also no any valid explanation as to why complainant kept quiet from 3/7/2009 till the day of filing complaint on 23/7/2009 without taking any action on the alleged demand of bribe money by accused. There is also no any explanation offered in the complaint Ex.P.2 as to why there is inordinate delay in filing the complaint inspite of accused alleged to have made demand for bribe money on 3/7/2009. However, the only explanation offered by PW.2 in his examination in-chief is that he was uncertain as to what action should be taken against the accused. Even this explanation is not found place in the complaint Ex.P.2 nor the same is spoken by the scribe of the complaint PW.6 who is a practising advocate. The evidence of PW.6 only speaks about having drafted the complaint in English which was revealed by complainant in Marathi language and nothing has been elicited in his evidence about the explanation offered by PW.2 as referred above for the inordinate delay caused in filing the complaint. Therefore, under these circumstances and looking to the evidence of material witnesses PWs.2, 9 and 11, there is no any concrete evidence to prove that accused has demanded illegal gratification for doing the work of complainant. The contention of learned SPP that accused has withheld furnishing of extract Ex.P.21 from the date of resolution dtd. Therefore, under these circumstances and looking to the evidence of material witnesses PWs.2, 9 and 11, there is no any concrete evidence to prove that accused has demanded illegal gratification for doing the work of complainant. The contention of learned SPP that accused has withheld furnishing of extract Ex.P.21 from the date of resolution dtd. 3/6/2009 till the date of trap an inference can be drawn that accused has withheld the furnishing of document at Ex.P.21 on demand of bribe money cannot be accepted, since the inference has to be drawn on the proved facts of the case and not on surmises and conjectures. Indisputably, complainant has not approached the accused in between the period of 3/6/2009 to 23/7/2009 and paid or deposited the required fees for furnishing the extract. Therefore, the circumstance referred above by learned SPP cannot be said as sufficient evidence to draw inference that accused has demanded bribe money. There is no any positive evidence on record to prove that accused has demanded bribe money at any point of time. Therefore, in view of the principles enunciated in the aforementioned judgment of Hon'ble Apex Court, the proof of demand and acceptance of bribe money is sine qua non for proving the offence under Sec. 7 and 13 (1)(d) of P.C. Act . The evidence placed on record by the prosecution does not conclusively prove the accused having demanded bribe money for doing the work of complainant. The Trial Court without properly appreciating the evidence on record to satisfy the test of twin requirement of demand and acceptance of bribe money for the offence under Ss. 7 and 13(1)(d) of P.C. Act erroneously recorded finding that prosecution has proved the guilt against accused beyond all reasonable doubt. In view of the reasons recorded above, the prosecution has failed to bring home the guilt of the accused for the charges levelled against him and as such interference of this Court is required. Consequently, proceed to pass the following; order Appeal filed by the appellant/accused is hereby allowed. The judgment of the Trial Court on the file of IV Additional District and Sessions Judge and Special Judge (PCA), Belgaum, in Spl.C.No.164/2011, dtd. 30/11/2013 is hereby set aside. The accused is acquitted for the offences punishable under Ss. 7, 13(1)(d) read with Sec. 13(2) of P.C. Act. The bail bonds and that of sureties shall stand discharged. The judgment of the Trial Court on the file of IV Additional District and Sessions Judge and Special Judge (PCA), Belgaum, in Spl.C.No.164/2011, dtd. 30/11/2013 is hereby set aside. The accused is acquitted for the offences punishable under Ss. 7, 13(1)(d) read with Sec. 13(2) of P.C. Act. The bail bonds and that of sureties shall stand discharged. The fine amount, if any, paid by the accused is hereby ordered to be refunded to the accused. The Registry is directed to transmit the records with the copy of this judgment to trial Court.