Mr. M. Jeyapaul, J.: - Appellant Rakesh Kumar has challenged the judgment of conviction and sentence recorded by the trial Court for the offence under Section 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short ‘the Act’).

2. It is the case of the prosecution that on 5.2.2008, the accused visited the house of the complainant in connection with the mobile phone provided to him by the company when he was serving and on the asking of the policeman he visited the police lines office where accused Rakesh Kumar met him and informed the complainant that the mobile phone was in his possession a stolen property and that he had received a complaint with respect thereto. He demanded a sum of Rs.1000/- as bribe and assured the complainant that he would exonerate him from the criminal case. PW2 expressed his inability to pay the bribe of Rs.1000/-. Accused agreed to take a sum of Rs.500/-. A complaint was lodged with State Vigilance Bureau, Ambala as he had chosen not to give bribe to Constable Rakesh Kumar. PW2 Yudhvir Singh who was the complainant, PW3 Parkash Chand who was the shadow witness deputed to accompany PW2, have completely turned hostile to the case of the prosecution. The trial Court chose to record conviction drawing presumption under Section 20(1) of the Prevention of Corruption Act, 1988.

3. Learned senior counsel appearing for the appellant vehemently submitted that in the light of the ratio laid down by the Hon’ble Supreme Court, a presumption that an employee had received bribe can be drawn under Section 20(1) of the Act only when the demand and acceptance have been established by the prosecution.

4. Learned counsel for the State argued that the complaint lodged by PW2 gave a graphic account of demand of bribe made by the accused. Immediately after accepting the bribe, the recovery had been effected in the presence of PW6 Ishwar Chand, Tehsildar, Kalka. Inasmuch, as the acceptance has been established, the trial Court has rightly invoked the presumption under Section 20(1) of the Act and convicted the accused.

5. The fact remains that the evidence of PW2 who was the complainant in this case does not unambiguously establish either the demand made or the acceptance of bribe by the accused. He failed to identify the accused as the Police Constable who demanded bribe and accepted the same from him. PW3, the shadow witness, has also failed to support the prosecution case.

6. It is true that the prosecution established through the evidence of PW6, the official witness Ishwar Chand who was serving as Tehsildar, Kalka that recovery of the tainted currency notes were recovered from the possession of the accused. The question that arises for consideration is whether a presumption under Section 20(1) of the Act can be drawn by the Court in the above special facts and circumstances of the case to record conviction as against the accused.

7. On a careful reading of Section 20(1) of the Act, I find that the presumption could be drawn only when an accused accepted or agreed to accept or attempted to obtain for himself or any other person any gratification or any valuable thing.

8. It is a well settled proposition of law that mere acceptance of tainted money or recovery of tainted money does not ipso facto establish the charges under Section 7 of 13(1)(d) of the Act. The prosecution is bound to establish that there had been a demand which preceded acceptance of gratification, as otherwise the above charges do not stand legal scrutiny.

9. In B. Jayaraj Vs. State of Andhra Pradesh, (2014) 13 SCC 55, it has been held by the Hon’ble Supreme Court as follows:-

“8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the acc