JUDGMENT : 1. This Acquittal Appeal is directed against the judgment dated 6.4.2009 passed in Special Criminal Case No.2/2008 by the Special Judge (under the Prevention of Corruption Act, 1988) and the First Additional Sessions Judge, Bilaspur whereby, the respondent/accused has been acquitted of the charge under Section 13 (2) of the Prevention of Corruption Act. 2. Prosecution case, in brief, is that complainant – Baliram Jaiswal (PW-2) lodged a written report on 31.7.2006 before the Dy. Superintendent of Police, Anti Curruption Bureau, Bilaspur to the effect that after the partition of their land, the Tehsildar, Bilha ordered the concerned Patwari/accused for preparing a separate Rin Pustika in the name of five brothers on 12.6.2006. For the said purpose, the complainant, contacted the respondent/accused 2-3 times, but he started demanding bribe money for the same. On 30.7.2006, the accused made a demand of Rs.1800/- for preparing Rin Pustika and on negotiation, the amount was settled at Rs.1500/- to be paid as bribe. Since the complainant was not willing to give bribe, he contacted the Anti Corruption bureau. After preparing the Prarambhik Panchnama, a trap was laid for the date ‘1.8.2006’. After a successful raid and obtaining sanction vide Ex.P/15, the charge sheet was filed. 3. During trial, the respondent/accused abjured his guilt and claimed to be tried. In order to prove its case, the prosecution examined as many as 10 witnesses. The respondent/accused stated that he has been falsely implicated in the case and he has not adduced any defence evidence. In his statement, he further stated that against complainant- Baliram Jaiswal and his brother Bahoran, he had registered two encroachment cases, in which, the complainant and his brother were fined. He further stated that he had not received any order from the Tehisldar after the partition in the matter of the complainant. He further stated that on the date of the incident, the complainant had handed over the certified copy of the order to him and when he had gone inside his house, in his absence, to inculpate him in a false case, the bribe money was kept in the register. The accused stated that he was not aware about it and thus, he had not demanded any bribe money from the complainant. 4. The accused stated that he was not aware about it and thus, he had not demanded any bribe money from the complainant. 4. After conclusion of trial, the learned trial court after evaluating the evidence on record, by the impugned judgment, acquitted the respondent/accused from the charges under Section 13 (2) of the Prevention of Corruption Act. Hence, this Appeal. 5. Learned counsel for the State would submit that the trial Court has not appreciated the evidence in its proper perspective and the complainant and the prosecution have successfully establish the case beyond reasonable doubt. Hence, he prays to allow the appeal and convict the accused. 6. On the other hand, learned counsel for the respondent/accused would support the impugned judgment and submit that the same does not call for any interference by this Court. He would place reliance on the matter of M.K. Harshan Vs. State of Kerala, (1996) 11 SCC 720 , in which, the tainted money was put in the drawer and there was no evidence regarding knowledge of the accused. By preponderance of probabilities, the accused therein has sufficiently shown that the plea put forward by him, namely, that in his absence somebody else might have put the tainted money in his drawer, is plausible. In the instant case also, the bribe money was put inside the register. Learned counsel would draw attention of the Court towards the statement of DK Malwear (PW-1), in which, vide para 5, he categorically deposed that when the trap party reached the respondent/accused’s house, he was not sitting on his chair and on being called, he came out of the house to his room. He further deposed that though the hands of the respondent/accused were dipped into the Sodium Bicarbonate solution, but the colour of the hands did not change, which shows that the accused had not touched the tainted bribe money. He would further submit that against the complainant and his brother, two encroachments cases have been registered, therefore, there is a possibility of false implication by the complainant due to previous enmity. Hence, he prays to dismiss the appeal. 7. Heard learned counsel for the parties and also perused the record with utmost circumspection. 8. In the matter of Neeraj Dutta Vs. State (Govt. Hence, he prays to dismiss the appeal. 7. Heard learned counsel for the parties and also perused the record with utmost circumspection. 8. In the matter of Neeraj Dutta Vs. State (Govt. of NCT of Delhi), 2023 SCC Online SC 280, the Hon’ble Supreme Court has referred the matter to the Constitution Bench, (2023) 4 SCC 731 , and the conclusions of the Constitution Bench have been highlighted vide para 11 & 12 : 11. The Constitution Bench was called upon to decide the question which we have quoted earlier. In paragraph 74, the conclusions of the Constitution have been summarised, which read thus: “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. (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. (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 7 or 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. (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. (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.” (emphasis added) 12. The referred question was answered in paragraph 76 of the aforesaid judgment, which reads thus: “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.” (emphasis added) 9. Now, coming to the facts of the present case, complainant – Baliram Jaiswal (PW-2) categorically deposed in his cross-examination vide para 11 that the respondent/accused was posted as Patwari in the concerned Halka for last 10 years. The Patwari had registered two encroachment cases in the year 2003-04 and 2005-06 against him and his brother Bahoran and they had been fined in the said case. The complainant deposed that on the date of the incident, when he had gone along with the trap party, the respondent/accused was present in his office and after 15 minutes, the accused asked him about the bribe money. The complainant deposed that on the date of the incident, when he had gone along with the trap party, the respondent/accused was present in his office and after 15 minutes, the accused asked him about the bribe money. When the complainant intended to give the bribe money, he asked him to keep the same inside the register and on his instructions, he had kept the said money therein and thereafter, gave signal to the trap party. Thereafter, the accused was caught red handed for accepting the bribe money and the bribe money was recovered from the register. D.K. Malewar (PW-1) categorically deposed contrary to the statement of Baliram Jaiswal (PW-2). He stated that when the trap party reached the residence of the Patwari, the respondent/accused was not present sitting on the chair and when the trap party called him, he came to his room. When the trap party asked about the bribe money and made a search, the tainted money was received from a register and thereafter, when the hands of the respondent-accused were dipped in the solution, the colour of his hands did not change. In the matter of M.K. Harshan (supra) also, tainted bribe money was put inside the drawer. Considering the nature of evidence, by preponderance of probabilities, the accused therein has sufficiently shown that in his absence somebody else might have put the tainted money in his drawer. 10. In the instant case also, since there are different versions of the prosecution evidence, as on the one hand, it is stated by one witness that when the trap party reached, the respondent/accused was present in the office and on the other side, another witness stated that the accused was not found sitting on the chair when the trap party reached. The accused has taken a specific defence that in his absence, the said tainted money had been kept in the register without his knowledge and the same was recovered by the trap party. Further, the respondent/accused has also established that the complainant was having a previous enmity with him as two encroachment cases were registered against the complainant and his brother by him. 11. In the matter of State of Kerala and another Vs. C.P. Rao, (2011) 6 SCC 450 , it has been held that mere recovery of tainted money is not sufficient to convict the accused. The relevant para 10 reads thus : 10. 11. In the matter of State of Kerala and another Vs. C.P. Rao, (2011) 6 SCC 450 , it has been held that mere recovery of tainted money is not sufficient to convict the accused. The relevant para 10 reads thus : 10. In C.M. Girish Babu v. CBI, Cochin, High Court of Kerala 2009 (3) SCC 779 , this Court while dealing with the case under the Prevention of Corruption Act, 1988, by referring to its previous decision in Suraj Mal v. State (Delhi Administration) 1979 (4) SCC 725 held that mere recovery of tainted money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused. In the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. (See SCC para 18.) 12. Considering the nature of the evidence, I am of the opinion that the trial Court has rightly taken the view that the prosecution has failed to establish the charges beyond reasonable doubt and the view taken is a possible one, as held in the matter of Jafarudheen Vs. State of Kerala, (2022) 8 SCC 440 , which does not require any interference by this Court. 13. Accordingly, the appeal is dismissed.