JUDGMENT : Rajani Dubey, J. The appellant in this appeal calls in question the legality and validity of the judgment of conviction and order of sentence dated 12 th July, 2007 passed by Special Judge, Central Investigation Bureau, Raipur in Special Criminal Case No.49/2004 whereby the appellant stands convicted and sentenced as under: Both the sentences were directed to run concurrently. 2. Case of the prosecution, in brief, is that the accused/appellant was posted as SDO, Phone-2 in BSNL, Bilaspur on 19.6.2003. In the year 2003 the complainant KP Agrawal, proprietor of M/s Akshay Construction, was doing the work of laying cable on contract under the accused/appellant. As the balance amount of the complainant remained unpaid, he contacted the appellant but the appellant demanded Rs.80,000/- bribe for it. The complainant agreed to pay first installment of Rs.40,000/- to the appellant. However, as the complainant did not want to give bribe to him, he made a complaint to this effect to the Central Bureau of Investigation and accordingly, on 20.6.2003 the team of CBI in a preplanned manner reached the office of the accused/appellant i.e. BSNL, Bilaspur and caught him red handing while he was taking bribe of Rs.40,000/- from the complainant. After completing the necessary formalities, charge sheet was filed against him before the concerned jurisdictional Magistrate. 3. Learned trial Court framed charges under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 against the accused which were abjured by him and he prayed for trial. In order to substantiate its case the prosecution examined 09 witnesses in all. Statement of the accused was recorded under Section 313 of CrPC wherein he denied all the incriminating circumstances appearing against him in the prosecution case, pleaded innocence and false implication. In his defence he examined three witnesses. 4. After hearing counsel for the respective parties and appreciation of oral and documentary evidence on record, the learned trial Court convicted and sentenced the accused/appellant as mentioned above. Hence this appeal. 5. Learned counsel for the appellant would submit that the impugned judgment is per se illegal and contrary to the material available on record. The complainant could not be examined in this case because of his death and only his son PW-5 Umesh Agrawal has been examined who turned hostile but recognized the signature of his father. Hence this appeal. 5. Learned counsel for the appellant would submit that the impugned judgment is per se illegal and contrary to the material available on record. The complainant could not be examined in this case because of his death and only his son PW-5 Umesh Agrawal has been examined who turned hostile but recognized the signature of his father. There is no legally admissible evidence with regard to demand of bribe on the part of the appellant from the complainant. No opportunity of cross-examination of the complainant could be availed by the appellant due to unfortunate death of the complainant, hence for want of corroboration with regard to the material facts i.e. with regard to demand of illegal gratification, the appellant ought not to have been convicted. The material witnesses PW-1 Late KP Agrawal, PW-4 Anil Jaiswal (panch witness) and PW-5 UC Agrawal have not supported the prosecution case. He submitted that according to search list Ex.P/5 documents from Ex.P/6 to P/29 were recovered but neither in presence of the appellant nor in presence of PW-2 & PW-4 despite their availability and further, the persons in whose presence they were recovered namely AK Shukla, CR Banjare and SK Tiwari, they have not been produced as witness to prove recovery of Ex.P/6 to P/29. Thus, it creates serious doubt as to recovery of these documents. There is also no recording of conversation between the appellant and the complainant regarding demand of illegal gratification and only there is recovery of Rs.40,000/- from the appellant which is not sufficient to hold him guilty of the charges leveled. 6. Learned counsel further argued that when PWs No.1, 4 & 5 entered the room, the appellant and Surya Dev Dubey were sitting together and bribe amount was allegedly being given to the appellant, however, statement of said SD Dubey was not recorded for the reasons best known to the prosecution who was a material witness. Had he been examined it would have been clear the there was no demand on the part of the appellant and in fact, the money which was accepted by the appellant was in relation to labour payments of SD Dubey as is evident from the statement of the accused and evidence of the defence witnesses. Had he been examined it would have been clear the there was no demand on the part of the appellant and in fact, the money which was accepted by the appellant was in relation to labour payments of SD Dubey as is evident from the statement of the accused and evidence of the defence witnesses. Thus, the prosecution has utterly failed to prove its case against the accused/appellant beyond reasonable doubt and he deserves to be acquitted of all the charges. Reliance has been placed on the decisions of the Hon’ble Supreme Court in the matter of Smt. Meena Hemke Balwant Vs. State of Maharashtra , AIR 2000 SC 3377 ; T. Subramanian Vs. State of TN , (2006) 1 SCC 401 ; State of Kerala Vs. CP Rao , (2011) 6 SCC 450; B. Jayaraj Vs. State of AP, (2014) 13 SCC 55 ; Krishan Chander Vs. State of Delhi , AIR 2016 SC 298 ; and Mukhtiyar Singh (since deceased) through LRs Vs. State of Punjab, 2017 CJ (SC) 627 7. On the other hand, learned counsel for the respondent opposing the contention of the appellant would submit that in view of oral and documentary evidence on record, the learned trial Court has rightly convicted and sentenced the appellant by the impugned judgment which calls for no interference by this Court. The present appeal being without any substance is, therefore, liable to be dismissed. 8. Heard learned counsel for the parties and perused the material available on record. 9. It is clear from the record of learned trial Court that the appellant was charged under Sections 7 and 13(2) read with Section 13(1)(d) of Prevention of Corruption Act, 1988 and after appreciation of oral and documentary evidence, learned trial Court convicted and sentenced him under these sections as mentioned in the opening paragraph of this judgment. 10. Examination-in-chief of PW-1 Krishna Pal Agrawal, complainant, was recorded before the trial Court on 19.4.2004 and as per order sheet dated 3.5.2005 of learned trial Court, the remaining examination of this witness was deferred on account of photocopy of certain bills produced by him being not admissible. However, meanwhile, PW-1 Krishna Pal Agrawal passed away, therefore, his cross-examination could not be conducted before the trial Court. 11. However, meanwhile, PW-1 Krishna Pal Agrawal passed away, therefore, his cross-examination could not be conducted before the trial Court. 11. The prosecution examined son of the complainant namely Umesh Chand Agrawal as PW-5 who states that his father was working as a contractor with BSNL but he did not tell him about any transaction with the accused. He states that on 20.6.2003 his father asked him over phone to come to Central Point Hotel and there his father asked him for withdrawal Rs.40,000/- and then after withdrawing Rs.40,000/- he gave it to him. He states that he does not know as to why this amount was asked for, his father did not tell him about it and he also did not enquire about the same. On the same day, he went to the accused to enquire about his work, there one person was sitting with the accused and after some time, his father also reached there and told the accused to accept his money and gave him Rs.40,000/-. The moment accused accepted the said money, 3-4 persons of CBI came and caught the accused and asked him to go back home. Thereafter, he returned home. Later on, he was called at Central Point Hotel by CBI personnel and his signatures were obtained on the documents. At this stage, the prosecution declared him hostile and cross-examined where he admitted the suggestion that in the year 2003 some bills relating to their contracting work were pending for payment with B.S.N.L. He denied the suggestion that he gave statement before the C.B.I. officer. He denied all the suggestions of the prosecution. However, he admitted signature of his father on complaint Ex.P/1 from A to A part. He denied the memorandum of the accused Ex.P/2 but admitted his signature thereon from D to D part. He states that his father died on 18.6.2005. He denied all the proceedings said to have been conducted before him. 12. PW-2 Jyotish Kumar Shrivastava states that he went with the CBI officials to the Inspection House PNT and after getting signal from the complainant, they went inside the Inspection House and the CBI officials after giving their introduction asked the accused to return the amount received upon which the accused took out Rs.40,000/- from right pocket of his pant and gave it to the CBI officials which were found to be the same currency notes. 13. 13. In cross-examination he states that the complainant told him about demand of Rs.40,000/- by the accused and that he (complainant) informed about this to CBI. He volunteers that the complainant told him that the said demand is made against clearance of his pending bills of contracting work with BSNL. In para 12 he states that he has been working for approximately 20 years in the positions of Field Officer and Branch Manager. He admits that while granting loans in the State Bank of India, all mandatory requirements and formalities are completed, and only thereafter is a loan sanctioned. If even a single deficiency remains, the loan cannot be approved. He states that they also make payments of bills, and such bills are passed only after completion of all required formalities. However, he states that he does not know the procedure for payment of bills in BSNL. He had questioned the complainant only to the extent of the facts mentioned in his complaint, in order to satisfy himself about the genuineness of the complaint and the authenticity of his signature thereon. In other respects, namely regarding departmental procedures or other matters, he did not conduct any detailed inquiry from him. In para 16 he states that when he reached there, Mr. Awasthi and Mr. Salwan had already caught hold of the hand of the accused. The witness himself stated that it was not Mr. Awasthi but Mr. Devasthali who caught hold of the accused. He admits the suggestion that at the time of the exchange of money between the complainant and the accused, he neither saw the exchange nor heard their conversation, therefore, he cannot state as to on what pretext the accused received the money or on what pretext the complainant paid the money. 14. PW-4 Anil Jaiswal stated that he went with the trap party. He narrated all the preliminary proceedings and how the trap party caught the accused and after washing his hands, the colour of the solution turned pink which was sealed. In cross-examination he admits that when they reached Inspection Quarter of BSNL, one person was also sitting in the room with the accused. He states that he and Umesh Agrawal came out together. However, he states that he does not know as to on what pretext KP Agrawal gave money to the accused. 15. In cross-examination he admits that when they reached Inspection Quarter of BSNL, one person was also sitting in the room with the accused. He states that he and Umesh Agrawal came out together. However, he states that he does not know as to on what pretext KP Agrawal gave money to the accused. 15. PW-7 B Paneer Salmon states about all the preliminary proceedings and the manner in which the accused was caught, in his examination in chief. In cross-examination he admits that he arranged this trap but has not investigated into the matter. He also admits that he himself did not enquire about the process regarding payment of bills. 16. PW-9 SD Devsthale states that he received complaint from KP Agrawal regarding demand of bribe by the accused for clearing his pending bills. On 20.6.2003 he forwarded the said complaint to Shri Salmon and after necessary action thereon, the CBI, Jabalpur registered a case against the accused. He admits his signature on pre- trap memorandum Ex.P/2. In cross-examination he states that he neither enquired regarding payment of pending bills nor did the process of its payment. 17. DW-2 Laxmikant Trivedi, Divisional Engineer, states about all the proceedings about clearance of the bills by the department and its payment to the contractors. 18. DW-3 Suryadev Dubey, contractor, states that K. P. Agrawal of Bilaspur was engaged in the business of contracting under the name and style of M/s Akshay Construction. In the year 2003, he along with K. P. Agrawal and other contractors, was awarded work by B.S.N.L. for laying underground telephone cables. He states that the accused told him in his office that Shri K. P. Agrawal was unable to continue the departmental work due to shortage of labour, and asked him (DW-3) to provide some labourers to him. On this, he told that he could provide labour, but asked who would be responsible for payment of their wages, as other contractors often avoid making timely payments, on which the accused stated that K. P. Agrawal would make payment to the labourers and that the responsibility for payment would be his. Thereafter, he sent 15–16 labourers to Shri Agrawal for work. In para 4 he states that he had provided the said labourers in March 2003. For about two to three months, those labourers worked under that contractor. Thereafter, he sent 15–16 labourers to Shri Agrawal for work. In para 4 he states that he had provided the said labourers in March 2003. For about two to three months, those labourers worked under that contractor. He then informed the accused that Shri Agrawal is not paying the labourers and requested him to ask Shri Agrawal to make the payment. The accused replied that Shri Agrawal is facing some difficulty in making payment at that time and would pay after some days. Thereafter, he withdrew the labourers sent to Shri Agrawal and prepared the account of their wages, which came to Rs.60,000/-. He gave this account to the accused and asked him to get the payment of this from Shri Agrawal. In para 5 he states that the accused told two or three times that he had spoken to Shri Agrawal and that payment would be made after some days. On 20 June 2002, the accused informed him to come to the departmental office to collect his dues. After the lunch break they went to the B.S.N.L. Inspection Quarter, where the accused told them that Shri Agrawal would come there to make the payment. After some time, Shri Agrawal arrived and took out money and handed it to the accused, telling him to give it to him (DW-3). Shri Sharma gave that money to him. When he counted the money, it was Rs.40,000/-. He then asked where the remaining amount was, as a long time had already passed. Shri Agrawal replied that not much time had passed and that he would pay the remaining amount after a few days. Thereupon, he returned the money to the accused and told him that when Shri Agrawal paid the full Rs.60,000/-, the amount should be given to him. He said this angrily in order to put pressure. On this, Shri Agrawal told the accused, “Alright, keep this amount; I am going to bring the remaining money.” 19. In para 6 he states that they were seated there for about five minutes when 4–5 persons arrived and attempted to take the money from the accused’s hand. The accused stated that the money was meant for payment of labour wages belonging to Shri Dubey. He told them that the money was his and that since the payment was incomplete, he had returned it for receiving the full amount. The accused stated that the money was meant for payment of labour wages belonging to Shri Dubey. He told them that the money was his and that since the payment was incomplete, he had returned it for receiving the full amount. One of those persons asked him who he was, on which he replied that his name is S. D. Dubey and that he is a contractor. They then stated that they are C.B.I. officials, that they have noted his name, and asked him to allow them to proceed with their official action. Thereafter, he left the place. 20. Close scrutiny of the evidence of all the witnesses make it clear that in the present case, examination of the complainant could not be completed due to his death and his son PW-5 Umesh Chand Agrawal has not supported the prosecution case and also not stated about demand of bribe by the appellant. DW-3 Suryadev Dubey states that he supplied some labourers to the complainant and as it payment was not made, the accused demanded the same from the complainant. 21. In the matter of Soundarajan (supra), the Hon’ble Supreme Court held in paras 10 & 11 of its judgment as under: “10. We have considered the submissions. It is well settled that for establishing the commission of an offence punishable under Section 7 of the PC Act, proof of demand of gratification and acceptance of the gratification is a sine qua non. Moreover, the Constitution Bench in Neeraj Dutta, (2023) 4 SCC 731 : (2023) 2 SCC (Cri) 352, has reiterated that the presumption under Section 20 of the PC Act can be invoked only on proof of facts in issue, namely, the demand of gratification by the accused and the acceptance thereof. 11. As stated earlier, complainant PW 2 has not supported the prosecution. He has not said anything in his examination-in-chief about the demand made by the appellant. The Public Prosecutor cross-examined PW 2. The witness stated that there was no demand of a bribe made by the appellant. According to him, he filed a complaint as the return of the sale deed was delayed. Though PW 2 accepted that he had filed the complaint, in the cross-examination, he was not confronted with the material portions of the complaint in which he had narrated how the alleged demand was made. According to him, he filed a complaint as the return of the sale deed was delayed. Though PW 2 accepted that he had filed the complaint, in the cross-examination, he was not confronted with the material portions of the complaint in which he had narrated how the alleged demand was made. The Public Prosecutor ought to have confronted the witness with his alleged prior statements in the complaint and proved that part of the complaint through the police officer concerned who had reduced the complaint into writing. However, that was not done.” 22. The Hon’ble Apex Court in the case of Mukhtiar Singh (supra) held in paras 14 & 15 of its judgment as under: “14. The indispensability of the proof of demand and illegal gratification in establishing a charge under Sections 7 and 13 of the Act, has by now engaged the attention of this Court on umpteen occasions. In A. Subair vs. State of Kerala, (2009) 6 SCC 587 , this Court propounded that the prosecution in order to prove the charge under the above provisions has to establish by proper proof, the demand and acceptance of the illegal gratification and till that is accomplished, the accused should be considered to be innocent. Carrying this enunciation further, it was exposited in State of Kerala vs. C.P. Rao, (2011) 6 SCC 450 that mere recovery by itself of the amount said to have been paid by way of illegal gratification would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 15. In P. Satyanarayana Murthy (supra), this Court took note of its verdict in B. Jayaraj vs. State of A.P., (2014) 13 SCC 55 underlining that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Section 7 as well as Section 13 (1)(d)(i) and (ii) of the Act. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. It was recounted as well that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. Not only the proof of demand thus was held to be an indispensable essentiality and an inflexible statutory mandate for an offence under Sections 7 and 13 of the Act, it was held as well qua Section 20 of the Act, that any presumption thereunder would arise only on such proof of demand. This Court thus in P. Satyanarayana Murthy (supra) on a survey of its earlier decisions on the pre-requisites of Sections 7 and 13 and the proof thereof summed up its conclusions as hereunder: "23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d) (i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fall. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder." (emphasis supplied) 23. In the matter of CP Rao (supra), the Hon’ble Supreme Court in paras 10, 11 & 12 of its judgment held as under: “10. In C.M. Girish Babu v. CBP, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1, 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 Admn.), (1979) 4 SCC 725 : 1980 SCC (Cri) 159, 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. 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.) 11. In a subsequent decision of this Court also under the Prevention of Corruption Act, in A. Subair v. State of Kerala, (2009) 6 SCC 587 : (2009) 3 SCC (Cri) 85, this Court made certain pertinent observations about the necessity of the presence of the complainant in a bribery case. The relevant observations have been made in paras 18-19 which are quoted below: (SCC p. 592) "18. The High Court held that since the Special Judge made attempts to secure the presence of the complainant and those attempts failed because he was not available in India, there was justification for non-examination of the complainant. 19. We find it difficult to countenance the approach of the High Court. In the absence of semblance of explanation by the investigating officer for the non-examination of the complainant, it was not open to the courts below to find out their own reason for not tendering the complainant in evidence. It has, therefore, to be held that the best evidence to prove the demand was not made available before the court." 12. Those observations quoted above are clearly applicable in this case. In the context of those observations, this Court in SCC para 28 of A. Subair made it clear that the prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is proved to the contrary by proper proof of demand and acceptance of illegal gratification, which is the vital ingredient to secure the conviction in a bribery case. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court.” 24. In view of the aforesaid settled principles of law, we find it difficult to take a view different from the one taken by the High Court.” 24. Upon a careful and critical re-appreciation of the entire oral and documentary evidence on record, and in light of the settled legal position governing offences under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, this Court is of the considered view that the prosecution has miserably failed to establish the foundational facts of demand and voluntary acceptance of illegal gratification, which are the sine qua non for sustaining conviction under the said provisions. It is not in dispute that the complainant, who was the star witness and the sole source of proof regarding the alleged demand of bribe, expired during trial and his examination could not be completed. His testimony, therefore, remained uncorroborated, incomplete and legally unsafe to rely upon, as the accused was deprived of the valuable right of cross-examination. In the absence of such cross-examination, the incomplete examination-in-chief of the complainant cannot be treated as substantive evidence. 25. The prosecution examined PW-5 Umesh Chand Agrawal, son of the complainant, who categorically failed to support the prosecution case. He did not depose about any demand of illegal gratification by the accused and was rightly declared hostile. His evidence does not advance the prosecution case in any manner except to the limited extent of identifying the signature of the deceased complainant, which by itself does not prove demand. The independent witnesses PW-2 and PW-4, though members of the trap party, admitted in clear terms that they neither heard any conversation nor witnessed any demand made by the accused. Their evidence, at best, establishes recovery of currency notes, which, as consistently held by the Hon’ble Supreme Court, is wholly insufficient in the absence of proof of demand. The evidence of the Investigating Officers (PW-7 and PW-9) also does not cure this fundamental defect, as they admittedly did not verify the departmental procedure for clearance of bills nor independently establish that the accused was in a position to clear the alleged pending bills of the complainant. The evidence of the Investigating Officers (PW-7 and PW-9) also does not cure this fundamental defect, as they admittedly did not verify the departmental procedure for clearance of bills nor independently establish that the accused was in a position to clear the alleged pending bills of the complainant. On the contrary, the defence version finds substantial and natural corroboration from DW-3 Suryadev Dubey, an independent contractor, who gave a plausible, cogent and consistent explanation that the amount of Rs.40,000/- was tendered towards part payment of labour charges payable by the complainant to him, and that the accused merely acted as an intermediary. This defence version appears probable, reasonable and consistent with human conduct, particularly in the backdrop of admitted contractual dealings and labour disputes. 26. On the basis of aforesaid discussions, it is quite clear that the prosecution has failed to prove demand of illegal gratification by the appellant beyond reasonable doubt, and consequently, the statutory presumption under Section 20 of the Act does not arise at all. The conviction, therefore, rests solely on recovery, which is legally impermissible. Criminal jurisprudence mandates that suspicion, however strong, cannot take the place of proof, and when two views are possible, the one favourable to the accused must prevail. The cumulative effect of hostile witnesses, non-examination of crucial witnesses, lack of corroboration, and a credible defence explanation creates serious doubt about the prosecution story. Therefore, conviction of the appellant for the alleged offence cannot be legally sustained and he deserves to be acquitted of the charges by extending him benefit of doubt. 27. In the result, the appeal is allowed. The impugned judgment of learned trial Court is hereby set aside, thereby acquitting the accused/appellant of the charges under Sections 7 and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The accused/appellant is reported to be on bail, therefore, keeping in view the provisions of Section 481 of BNSS, 2023 he is directed to furnish a personal bond for a sum of Rs.25,000/- with one surety in the like amount before the Court concerned which shall be effective for a period of six months alongwith an undertaking that in the event of filing of special leave petition against the instant judgment or for grant of leave, the aforesaid appellant on receipt of notice thereon shall appear before the Hon'ble Supreme Court. The record of the trial Court along with copy of this judgment be sent back immediately to the trial Court concerned for compliance and necessary action. A copy of this judgment be also forwarded to the concerned Jail Superintendent for information and necessary action.