JUDGMENT : ( 1. ) APPELLANT Dwarka Prasad s/o Ramnath Gupta, aged about 40 years, a Sanitary-cum-Food Inspector, then posted at Ashoknagar, District Guna, has come up in this appeal against his conviction by Shri T. N. H. Pancholi, Special Judge, guna, in Sp. Case No. 1 of 1981, under the Judgment dated 11-1-1982, under section 161 of Indian Penal Code and Section 5 (d) read with Section 5 (2) of the Prevention of corruption Act and the sentences, respectively thereunder, of rigorous imprisonments for one year and 11/2 years, along with fine of Rs. 250/-, in default further rigourous imprisonment for two months. The jail sentences are to run concurrently_ ( 2. ) FOLLOWING facts are not in dispute :-That on the date of the alleged offence dated 29-11-1978 and prior thereto, appellant Dwarka Prasad was posted as the food-cum-Sanitary Inspector at ashoknagar, District Guna. Hari Shankar Gupta (P. W. 3) is the son of Motilal Gupta (P. W. 5) and they own and run a restaurant-cum-sweet meat (Halwai) shop at ashoknagar. On 31-8-1978, a sample of "jalebi" was obtained from their sweet meat shop by the appellant under and in accordance with the provisions of the Food adulteration Act, one part of which was also sent for analysis to the Public Analyst. Subsequent thereto, on 29-11-1978 Hari Shankar (P. W. 3) paid at his shop a sum of Rs. 750 - in currency notes to the appellant. In course of the trap which had been laid for the appellant, the currency notes, which had earlier been initialled by Sub-Divisional officer, Ashoknagar Shri Soumitra Bose (P. W. 7), were seized from possession of the appellant under the seizure memo Ex. P. 2. After obtaining the sanction of the competent authority, the appellant was prosecuted in respect of the offences, for which he has been convicted. It was also not disputed by Hari Shankar (P. W. 3) that he had earlier obtained a sum of Rs. 250/- as loan from one Prakash Narain Gupta (D. W. 4)related to the appellant, at Jhansi, and the latter had addressed the letter, Ex. D. 5 to him (Hari Shankar) for the re-payment of loan. ( 3. It was also not disputed by Hari Shankar (P. W. 3) that he had earlier obtained a sum of Rs. 250/- as loan from one Prakash Narain Gupta (D. W. 4)related to the appellant, at Jhansi, and the latter had addressed the letter, Ex. D. 5 to him (Hari Shankar) for the re-payment of loan. ( 3. ) THE Prosecution case was that in order to drop the proceedings against Hari shankar (P. W. 3) and/or his father Motilal Gupta (P. W. 5) regarding their prosecution in respect of the alleged offence under the Prevention of Food Adulteration Act, the appellant was pressing Hari Shankar for the bribe amount of Rs. 500/-, which was ultimately settled at Rs. 250/ -. However, Hari Shankar (PW. 3) who wanted to teach a lesson to the appellant, complained against him to the Sub-Divisional Officer, ashoknagar, Soumitra Bose (P. W. 7) and also submitted the written complaints dated 29-11-1978 (Ex. P. 11 and P. 1) regarding graft before him, whereafter a trap was laid by the Sub-Divisional Officer in association with Sub-Divisional Officer police Manipat singh (P. W. 8 ). in pursuance of the trap, complainnat Hari Shankar (P. W. 3) paid the sum of Rs. 250/-in marked currency notes as bribe to the appellant, which amount, as is not disputed, was recovered from his possession, immediately thereafter, and seized under the seizure memo Ex. P. 2. Some other articles in possession of the appellant were also seized under seizure memos Ex. P. 3 and P. 4 at the time of his arrest under memo ex. P. 5. After obtaining the sanction for prosecution vide Ex. P. 11-A dated 18-2-1981, the appellant was prosecuted in respect of the offences, for which he has been convicted. ( 4. ) IN the trial Court, the appellant abjured the guilt and stated that he had been falsely implicated by complainant Hari Shankar Gupta (P. W. 3) and other businessmen who were aggrieved and had an axe to grind against him. In pursuance of their conspiracy, the trap was laid for him to be implicated when, on point of fact, the sum of rs. 250/- in currency notes was handed over to him by Hari Shankar (P. W. 3) in repayment of the loan advanced to him by Prakash Narain Gupta (D. W. 4), the latter being related to appellant Dwarka Prasad. ( 5. 250/- in currency notes was handed over to him by Hari Shankar (P. W. 3) in repayment of the loan advanced to him by Prakash Narain Gupta (D. W. 4), the latter being related to appellant Dwarka Prasad. ( 5. ) IN order to bring home the offences to the appellant, the witnesses examined by the prosecution are Subhash Chand (P. W. 1), Kamal Kumar Bansal (P. W. 2), Hari shankar Gupta (P. W. 3), Panna Lal (P. W. 4), Motilal Gupta (P. W. 5), J. P. I. Singh (P. W. 6), Soumitra Bose (P. W. 7) and Manipat Singh (P. W. 8), in addition to the proof of documents numbering 22, filed in the Case. In his defence, the appellant examined as many s five witnesses, namely Bholaram Sharma (D. W. 1), V. K. Saxena (D. W. 2), Dr. K Bansal (D. W. 3), Prakash Narain Gupta (D. W. 4) and Sharda Prasad (D. W. 5), along with documents numbering 22. Upon an assessment of the evidence, the learned special Judge has found the appellant guilty rejecting his defence and has convicted and sentenced him, as already described in the opening paragraph above. ( 6. ) A large number of facts being admitted in this case, as stated by the learned counsel for the appellant, and also not disputed by the learned counsel on behalf of the state, the only points for consideration in this appeal are (i) whether the amount of Rs. 250 - in marked currency notes, admittedly seized from the possession of the appellant, was obtained by him from Hari Shankar (P. W. 3) as a gratification other than legal remuneration, or alternatively, in the repayment of loan and (ii) whether the appellant has been able to establish by preponderance of probability, the defence version raised by him in the case ? ( 7. ) IN respect of an alleged offence under Section 161, or for the matter of that under section 165 of the Indian Penal Code, mere receipt of money by the accused, in the circumstances of the case, is sufficient to raise the presumption laid down under section 4 of the Prevention of Corruption Act, 1947 (See V. D. Jhinoam vs. The State of u. P. , AIR 1966 SC 1762 ). It is not the law that the presumption under section 4 (1) can be raised only if the prosecution establishes in the first instance that the amount was paid otherwise than as legal remuneration. If the prosecution proves the acceptance of the amount by the accused and the amount does not represent the legal remuneration in any form, the presumption at once arises. But the accused may discharge the onus through preponderance of probability {see Mahesh Prasad Gupta vs. State of rajasthan, AIR 1974 SC 773 and Trilok Chand Jain vs. State of Delhi, 1979 SC 666), 7-A. The principles of law regarding the appreciation of evidence in bribery or trap cases, generally speaking, are as follows :- (a) that the burden of proving the prosecution case, generally lies on the prosecution even in case of trap or bribery, this burden is not shifted by section 4 of the prevention of Corruption Act; (b) that section 4 has got limited application only for raising of presumption regarding the motive of the taking of money provided it is proved that the money was obtained or accepted by the accused; (c) that even in raising the presumption under Section 4, the act of acceptance or obtaining must be wilful, voluntary and with conscious mind; (d) that even where such a presumption is drawn, the accused can rebut it by showing there is a plausible explanation and the basis of preponderance of probability of other theory; (e) the accused is not required to rebut this presumption by leading evidence beyond reasonable doubt. But all that is required to show is to establish preponderance of probability in his favour; (f) that the witnesses of trap are not to be discharged as accomplices but in a given case the Court can insist on independent corroboration for believing their testimony. Thus, for example, in the case of Pannalal Damoder Rathi vs. State of Maharashtra, AIR 1979 SC 1191 , their lordships of the Supreme Court have observed that -there could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the Indian Penal Code making the person who offers bribe guilty of abetment. of bribery the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon. After introduction of Section 165-A of the Indian Penal Code making the person who offers bribe guilty of abetment. of bribery the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon. " ( 8. ) COMING to the facts of the present case, it is admitted by the appellant-accused that on 29-11-1978 at about 1. 15 p,m. he received at the Halwai shop of Hari Shankar (P. W. 3) and his father Motilal (P. W. 5) on the Station Road, Ashoknagar, the sum of Rs. 250/- in currency notes from Hari Shankar. He subsequently came to know after the seizure that the currency notes were marked having been initialled by Sub-Divisional officer Soumitra Bose (P. W. 7) and bore the numbers AIA 628606, OHN 029586 and 38v 717030. Now, while Hari Shankar (P. W. 3) states that his amount was paid as a graft amount to appellant accused Dwarika Prasad not to prosecute him or his father Motilal (P. W. 5) under the provisions of the Prevention of Food Adulteration Act, the appellant states that the amount was paid to him at the said time and place in re-payment of the loan of Rs. 250/- advanced to Hari Shankar (P. W. 3) by his relative Prakash Narain gupta (D. W. 4) at Jhansi. It is also pertinent to note that there are no other eye-witnesses to the actual transaction of payment and the dialogues, if any, between the parties. The so called eye-witnesses Subhash Chand (P. W. 1), Kamal Kumar Bansal (P. W. 2) and pannalal (P. W. 4), who on point of fact, are witnesses to the seizure of Rs. 250/- from the appellant admit having been at different spots outside the room at the time when cash payment was made inside it. Thus, Hari Shankar (P. W. 3) remains the sole witness on the point in regard to the purpose of payment, i. e. , whether the payment was as a graft money or re-payment of loan-money. 250/- from the appellant admit having been at different spots outside the room at the time when cash payment was made inside it. Thus, Hari Shankar (P. W. 3) remains the sole witness on the point in regard to the purpose of payment, i. e. , whether the payment was as a graft money or re-payment of loan-money. Here, attention may be re-invited to the case of pannalal Damoder Rathi vs. State of Maharashtra, AIR 1979 SC 1191 , wherein it has been laid down that the complainant in a trap or graft case is in no better position than an accomplice and his corroboration in material particulars was required. In the instant case, there is no independent corroboration of the fact that Rs. 250/- were paid as bribe. ( 9. ) IT is further pertinent to note that there are material admissions made by Hari shankar (P. W. 3) himself bringing out that there could be no doubt in regard to the truth of the allegations made by the appellant in his defence regarding advance of loan by his relative Prakash Narain (D. W. 4) to the former (Hari Shankar ). Thus, in para 7 of his cross examination, Hari Shankar (P. W. 3) has admitted that sometime prior to the occurrence, he, had borrowed the sum of Rs. 250/- in cash from Prakash Narain Gupta (D. W. 4) at Jhansi and that the latter had after a few days, also addressed the letter Ex. D. 5 to the appellant by way of reminder for re-payment of the amount, may be through the appellant. This fact is also testified to by Prakash Narain Gupta examined in defence as d. W. 4. In view of this evidence, a strong probability is raised that the amount paid by complainant Hari Shankar (P. W. 3) on the alleged date of occurrence to the appellant could as well be in re-payment of the alleged loan. ( 10. ) HARI Shankar (P. W. 3) r/o Ashoknagar appears to be a dubious character. In this connection, attention may be invited to the following statement volunteered by him in the Court, relating to the basis for the prosecution of the appellant at his instance:-This admission indicates the scheming and revengeful character of the complainant and brings out that he is not incapable of falsely implicating a person with whom he is not happy. In this connection, attention may be invited to the following statement volunteered by him in the Court, relating to the basis for the prosecution of the appellant at his instance:-This admission indicates the scheming and revengeful character of the complainant and brings out that he is not incapable of falsely implicating a person with whom he is not happy. In the instant case, he had a ready-made excuse available for implicating the appellant by marking a repayment of the loan amount, borrowed by him from Prakash narain Gupta (D. W. 4) related to the appellant. ( 11. ) ANOTHER important circumstance which introduces the possibility of false implication in this case is that on the alleged date of occurrence, i. e. , 29-11-1978, there was no need for Hari Shankar (P. W. 3) or for the matter of that his father Motilal (P. W. 5} to pay any bribe to the appellant for suppression of the Food Adulteration matter against them. In this connection, attention may be invited to the report dated 25-10-1978 of the Food Department (Ex. D. 4) intimating Motilal that on analysis by the Public analyst Gwalior, it had been found that the Sample of jalebi taken from his shop on 31-8-1978 was not found to be adulterated. When confronted with the document, Motilal (P. W. 5) father of Hari Shankar (P. W. 3), admitted his signature of receipt on Ex. D. 4, though later, in course of his statement, he tried unsuccessfully to resile from it. It naturally follows that on or about 25-10-1978 it had been learnt that the sample of Jalebi was not adulterated, there was no occasion to pay any graft amount to the appellant for suppression of the matter in regard to the alleged adulteration of Jalebi. Thus, the very basis, for which the bribe of Rs. 250/- is alleged to have been paid to the appellant, completely disappears in the case. ( 12. ) IN view of the discussion above, it is obvious that the appellant-accused has successfully established a high probabilty of his defence being true and the amount of rs. 250/- having been paid in repayment of the loan obtained by Hari Shankar (P. W. 3)from appellants relative Prakash Narain Gupta at Jhansi. ( 12. ) IN view of the discussion above, it is obvious that the appellant-accused has successfully established a high probabilty of his defence being true and the amount of rs. 250/- having been paid in repayment of the loan obtained by Hari Shankar (P. W. 3)from appellants relative Prakash Narain Gupta at Jhansi. As a matter of fact, it almost appears as if Hari Shankar (P. W. 3) falsely implicated the appellant, by also playing a fraud on Sub-Divisional Officer, Ashoknagar. Thus to conclude, this appeal pre-eminently deserves to be allowed and the conviction of the appellant by the trial Court to be set aside. I only feel sorry that in a simple and obvious case, like the present one, the learned Special Judge should have tried to over - stretch his reasoning in order to convict the appellant and, if I may say so, for the reasons best known to him. ( 13. ) THE result is, that this appeal is allowed. The convictions of appellant dwarika Prasad Gupta, Food-cum-Sanitary Inspector, by the Special Judge, Guna, under section 161 of the Indian Penal Code and Section 5 (l) (d) read with Section 5 (2)of the Prevention of Corruption Act, and Jail-cum-fine Sentences imposed upon him, thereunder, are set aside, and he is acquitted of the same. The fine amount of Rs. 250/-imposed upon the appellant, if recovered, shall be refunded. It is further directed that the currency notes worth Rs. 250/- (Arts. K-1 to K-3) paid in re-payment of loan, along with other articles seized from the possession of the appellant at the time of his arrest shall be returned to him. The bail bonds, furnished by the appellant, for his appearance in course of this appeal, shall stand discharged. Appeal allowed.