B. K. BEHERA, J. ( 1 ) THE charges framed against the appellant were that while he was employed in the Civil Supplies Office at Rourkela in the district of Sundargarh as Assistant Civil Supplies Officer, he accepted or obtained a sum of Rs. 1,000. 00 on March 19, 1977 from some dealers in essential commodities as a motive or reward for doing or for bearing to do an official act, viz. , to return the records of their respective control shops which had been token by him and thereby committed an offence punishable tinder section 5 (2) read with section 5 (1) (a) of the Prevention of Corruption Act, 1947 (to be referred to hereinafter as the Act), had obtained in that capacity, by corrupt and illegal means or otherwise abusing his position as a public servant, pecuniary advantage to the extent of Rs. 200. 00 for himself from Niranjan Khemka on March 28, 1977 and thus committed an offence punishable under section 5 (2) read with section 5 (1) (d) of the Act and that by receiving this gratification of Rs. 200. 00, he had also committed an offence punishable under section 161 of the Indian Penal Code (for short, the Code ). To bring home the charges to the appellant, the prosecution had examined twelve witnesses. The plea of the appellant was one of denial and false implication. He had examined one witness in his defence. ( 2 ) ON a consideration of the evidence, the learned Special Judge has found the appellant to be guilty of all the charges. For his conviction under section 5 (2) read with section 5 (1) (a) of the Act, the appellant has been sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000. 00 and in default of payment thereof, to undergo rigorous imprisonment for It further period of three months. In respect of his conviction under section 5 (2) read with section 5 (1) (d) of the Act, the appellant has been sentenced to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs. 1,000. 00 and in default of payment thereof, to undergo rigorous imprisonment for a further period of three months. The appellant has been sentenced to undergo rigorous imprisonment for a period of one year under section 161 of the Code. 1,000. 00 and in default of payment thereof, to undergo rigorous imprisonment for a further period of three months. The appellant has been sentenced to undergo rigorous imprisonment for a period of one year under section 161 of the Code. The learned trial Judge has made an order that the sentences would run concurrently, whereby he has evidently meant that the substantive terms of imprisonment would run concurrently because the terms of imprisonment which an accused is required to undergo in default of payment of fines are not to run concurrently with the substantive terms of imprisonment The appellant has assailed the order of conviction in respect of all the charges as illegal and unfounded. ( 3 ) APPEARING on behalf of the appellant, Mr. Mund has token me through the evidence and has submitted that the prosecution has failed to establish any of the charges against the appellant and the trial court went wrong in basing his conviction on the uncorroborated testimony of the accomplices who, on their own showing, were bribe givers and stood self condemned, apart from the fact that their evidence, by itself was unworthy of credence. Mr. D. P. Sahoo, the learned Standing Counsel, has supported the order of conviction in respect of all the charges. ( 4 ) EVIDENCE has been led by the prosecution through P. Ws. 2, 3, 6, 8 and 11 that while functioning as the Assistant Civil Supplies Officer at Rourkela, the appellant had been demanding and accepting habitually a sum of R. I. 100. 00 from each of the control dealer every month. The prosecution has also relied on the evidence of P. Ws. 2, 3 and 8 that for return of the registers to those dealers, the appellant had demanded a sum of Rs. 1,200. 00 as bribe money out of which an amount of Rs. 1,000. 00 had been paid on 19-3-1977 and for the demand of the balance amount of Rs. 200. 00, a trap was laid and the amount was paid by P. W. 8 to the appellant on 28-3-1977. ( 5 ) IT is important to keep in mind that in respect of the allegation made by some of the prosecution witnesses for the habitual acceptance of Rs. 100. 200. 00, a trap was laid and the amount was paid by P. W. 8 to the appellant on 28-3-1977. ( 5 ) IT is important to keep in mind that in respect of the allegation made by some of the prosecution witnesses for the habitual acceptance of Rs. 100. 00 per month as bribe money from each of the control dealers at Rourkela, no charge had been framed against the appellant, but the learned Sessions Judge has illegally and improperly recorded the order of conviction under section 5 (2) read with section 5 (1) (a) of the Act against the appellant for acceptance of such bribe amounts from the control dealers. The charge under section 5 (2) read with section 5 (1) (a) of the Act against the appellant was that he had received a sum of Rs. 1,000. 00 on 19-3-1977. On the face of it, this charge could not be sustained in law as what is contemplated in section 5 (1) (a) of the Act is habitual acceptance of bribe money and not acceptance of bribe money on a particular occasion. As already indicated, there was no charge for habitual acceptance of Rs 100. 00 per month as bribe money from each of the control dealers at Rourkela including P. Ws. 2, 3, 6, 8 and 10 and consequently, no order of conviction could be recorded in respect of such habitual receipt of bribe amounts of which the appellant had no notice in the charge and consequently; must be taken to have been prejudiced seriously by the order of conviction in that regard. The order of conviction recorded against the appellant under section 5 (2) read with section 5 (1) (a) of the Act must, therefore, be annulled. ( 6 ) THE appellant stood charged under section 5 (2) read with section 5 (1) (d) of the Act for having obtained by corrupt or illegal means or by otherwise abusing his position as a public servant pecuniary advantage to an extent of Rs. 200. 00 from Niranjan Khemka (P. W. 8) on March 28, 1977 at Rourkela. The trial court has not recorded any finding in this regard and has not convicted the appellant under section 5 (2) read with section 5 (1) (d) of the Act for obtaining Rs. 200. 00 from P. W. 8 on 28-3-1977. 200. 00 from Niranjan Khemka (P. W. 8) on March 28, 1977 at Rourkela. The trial court has not recorded any finding in this regard and has not convicted the appellant under section 5 (2) read with section 5 (1) (d) of the Act for obtaining Rs. 200. 00 from P. W. 8 on 28-3-1977. It must, therefore, be held that there has been an implied order of acquittal of the appellant in respect of the charge framed against him in this regard. On the other hand, the learned trial Judge has unjustifiably and Illegally convicted the appellant under section 5 (2) read with section 5 (1) (d) of the Act for having obtained pecuniary advantage of Rs. 1,000. 00 on 19-3- 1977 from P. Ws. 2, 3 and 8. Of this, the appellant had no notice in the charge and accordingly, prejudice would certainly be assumed. No finding could have been recorded against the appellant for acceptance of Rs. 1,000. 00 from P. Ws. 2, 3 and 8 punishable under section 5 (2) read with section 5 (1) (d) of the Act. The order of conviction recorded against the appellant under section 5 (2) read with section 5 (1) (d) of the Act cannot be sustained in law. ( 7 ) THE next question for consideration would be as to whether the appellant could be convicted under section 161 of the Code. ( 8 ) IT is in evidence that on the basis of the first information report lodged by P. W. 8, a trap was laid and P. W. 8, in company with P. W. 3, as previously arranged, went to the appellant and paid Rs. 200. 00 as bribe money where after on a signal being given by P. W. 8, the raiding party including P. Ws. 10 and 12 came to the scene and recovered the bribe money from the appellant. It is not disputed by the appellant that a sum of Rs. 200. 00 had been recovered from him. His case was that as he had paid a sum of Rs. 250. 00 to P. W. 8 for rice and P. W. 8 had failed to deliver the rice the latter had executed a hand-note on 26/2/1977 scribed by D. W. 1 and on 28-3-1977, P. W. 8 paid Rs. 200. 00 out of the amount of Rs. 250. His case was that as he had paid a sum of Rs. 250. 00 to P. W. 8 for rice and P. W. 8 had failed to deliver the rice the latter had executed a hand-note on 26/2/1977 scribed by D. W. 1 and on 28-3-1977, P. W. 8 paid Rs. 200. 00 out of the amount of Rs. 250. 00 due to be paid by him and this amount was recovered from the appellant. ( 9 ) ON the introduction of section 165-A of the Code, persons offering illegal gratification to public servants became reluctant to come forward to give evidence because on their own admissions in court, they would become liable for protection under that section. Section 8 of the Act was enacted to afford the necessary protection to such persons whose evidence would be utilised in the Courts for the prosecution of corrupt public servants. Because of this provision, a person offering bribe money cannot be held to be guilty as the accused for the commission of the offence and cannot be condemned as an accomplice nor can be prosecuted under section 165-A if the Code, as observed and held by the Supreme Court in Sri Niranjan Patnaik v. Sri Sashibhusan Kar and another. This provision would not change the nature and character of the witnesses and would not wipe out their past misconduct and dishonesty as bribe given nor would change the past-sinners into saints. It affords immunity to them from being prosecuted. The evidence of past givers of bribe would require careful scrutiny before its acceptance. ( 10 ) ON their own showing, p. Ws. 3 and 8, witnesses to the trap, had been paying habitually bribe amounts to the appellant before they and some other persons had made reports to the Collector for which an enquiry had been ordered and the Sub-divisional Officer had taken up the enquiry In the course of which statements of P. Ws. 3 and 8 and some other persons had been recorded. Thus these persons had conducted themselves dishonest ably prior to the date of receipt of Rs. 200. 3 and 8 and some other persons had been recorded. Thus these persons had conducted themselves dishonest ably prior to the date of receipt of Rs. 200. 00 by the appellant from P. W. 8 and it would not be legal and proper to base an order of conviction on the basis of their statements, uncorroborated by any other evidence, as has been held by this Court in Sashi Bhusan Kar v. State of Orissa, after referring to and relying on a number of decisions of the Supreme Court, ( 11 ) IN the case of Sashi Bhusan Kar v. State of Orissa (supra ). P. Ws. 2 and 8 were said to be bribe givers On a discussion of the evidence of P. Ws. 2 and 8, this Court had observed and held; The aforesaid statements made by P. W. 2 in his evidence at the trial would undoubtedly indicate that to the knowledge and with the approval of his master (P. W. 8 ). he (P. W. 2) had been paying Rs. 1,000. 00 per month to the appellant as bribe and al his evidence would show, P Ws. 2 and 8 were willing participants in the matter of paying a monthly bribe amount to the appellant on his demand after be joined as the Senior Mining Officer. There was no evidence to indicate that this illegal gratification of Rs. 1,000. 00 per month was being paid under coercion and fear of harassment at the hands of the appellant. As a matter of fact, no particular instance of coercion or harassment by the appellant had been established from the side of the prosecution through the evidence of p, Ws. 2 and 8. xx xx xx These statements would undoubtedly show that when P. W. 8 was informed by his Manager (P. W. 2) about the monthly payments to the appellant, P. W. 8 did not choose to bring the matter to the notice of the appropriate authorities against the appellant and for his self- interest and by throwing public interest to the air, instructed his Manager (P. W. 2) to somehow manage with the matter and not to pick up quarrels with the appellant which would clearly mean that the monthly payments should be made to the appellant to manage their matters. He was even satisfied In March, 1979, that his Manager had paid Rs. 3000. He was even satisfied In March, 1979, that his Manager had paid Rs. 3000. 00 to the appellant for which he (P. W. 8) showed the expenditure in the impressed accounts of the Manager. These payments evidently could not have been shown in the regular accounts for which P. W. 8 had shown the payments of bribe money to the appellant in the Impressed account, as stated by him (P. W. 8), P. W. 2 had shown it as miscellaneous expenditure. xx xx xx The statements made by Mr. Patnaik (P. W. 8) and his Manager (P. W. 2) with regard to willing participation in the matter of payment of bribe money to the appellant would bring about their own condemnation. ( 12 ) THE evidence of P. Ws. 2 and 8 in that case was not accepted without independent and corroborative evidence and this Court held that it would not be legal, reasonable and proper to accept the uncorroborated testimony of P. Ws. 2 and 8. Some observations made by this Court other than those quoted above in this judgment have been expunged by the Supreme Court in 61 (1986) C. L. T. 523 (supra) on an appeal being preferred by P. W. 8. The observations of this Court which have been expunged have been extracted in the Judgment of the Supreme Court. But the order or acquittal recorded by this Court In the appeal has not been assailed by the State in the Supreme Court. Thus in similar circumstances, as in the instant case, this Court had not acted upon the evidence of P. Ws. 2 and 8 without corroboration. ( 13 ) IN the instant case, the receipt of Rs. 200. 00 from P. W. 8 on 28-3-1977 by the appellant is not denied. In his statement at the trial, the appellant had stated thus: In January 1977 I gave Rs. 250. 00 to Niranjan Khemka to purchase rice for me. But he did not give me rice and he did not return the money. For that I asked him several times. He came to me on 26-2-77 and I had some conversation with him regarding the non delivery of rice. N. Khemka told me that if I disbelieve him he will execute a hand note for Rs. 250. 00. N. Khemka reluctantly executed a hand note in my favour. For that I asked him several times. He came to me on 26-2-77 and I had some conversation with him regarding the non delivery of rice. N. Khemka told me that if I disbelieve him he will execute a hand note for Rs. 250. 00. N. Khemka reluctantly executed a hand note in my favour. On 28-3-77 N. Khemka requested me to keep Rs. 200. 00 and said that he will pay the balance of Rs. 50. 00 subsequently. On that belief I accepted the amount of Rs. 200. 00 from N. Khemka and I told this to 1. 0. also on the spot X will give defence. ( 14 ) SECTION 4 (1) of the Act reads: Presumption where public servant accepts gratification other than legal remuneration.- (1) Where in any trial of an offence punishable under section 161 or section 165 of the Indian Penal Code or of an offence referred to in clause (a) or clause (b) of sub-section (1) of section 5 of this Act punishable under sub-section (2) thereof, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain, for himself or for any other person any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be without consideration or for a consideration which he knows to be inadequate. ( 15 ) IT has been laid down in Sailendra Nath Bose v. State of Bihar, that the words unless the contrary is proved occurring in section 40) of the Act make it clear that the presumption has to be rebutted by proof and not by bare explanation which is merely plausible. But the burden resting on the accused may be satisfied if he establishes his case by a preponderance of probabilities and it is not necessary for him to establish his case by the test of proof beyond reasonable doubt. But the burden resting on the accused may be satisfied if he establishes his case by a preponderance of probabilities and it is not necessary for him to establish his case by the test of proof beyond reasonable doubt. The nature of the burden placed on him is not the same as that placed on the prosecution which must not only prove its case, but prove it beyond reasonable doubt. The Supreme Court has held in Chaturdas Bhagwandas Patel v. State of Gujarat: It is true that the burden which rests on an accused to displace this presumption is not as onerous as that cast on the prosecution to prove its case. Nevertheless, this burden on the accused is to be discharged by bringing on record evidence, circumstantial or direct, which established with reasonable probability, that the money was accepted by the accused, other than as a motive or reward such as is referred in to in section 161. In Man Singh v. State (Delhi Administration), it has been held that the accused is not required to prove his defence by the strict standard of proof beyond reasonable doubt and it is sufficient if he offers an explanation or defence which is probable and once this is done the presumption under section 4 stands rebutted. Before raising the presumption, the burden is on the prosecution to establish that the accused has accepted or obtained or has agreed to accept or attempted to obtain for himself any gratification other than legal remuneration. As has been laid down by the Supreme Court in Hazari Lal v. State (Delhi Administration), where the recovery of the money coupled with other circumstances leads to the conclusion that the accused received the gratification from some person the court would be entitled to draw the presumption under section 4 (1) of the Act and it is for the accused to prove the contrary in order to rebut the presumption to be drawn against him. If an accused states in his examination under section 313 of the Code of Criminal Procedure that the currency notes had been thrust into his pocket, that statement, by itself, without anything more, is not sufficient to satisfy the necessary ingredients of section 4 (1) of the Act, as held in Banshi Lal Yadav v. State of Bihar. If an accused states in his examination under section 313 of the Code of Criminal Procedure that the currency notes had been thrust into his pocket, that statement, by itself, without anything more, is not sufficient to satisfy the necessary ingredients of section 4 (1) of the Act, as held in Banshi Lal Yadav v. State of Bihar. ( 16 ) P. W. 8 has denied the assertion made by the appellant that he had executed a hand note in respect of the amount of Rs. 250. 00 taken by him for delivering rice to the appellant. According to D. W. 1, he had gone to the office of the appellant on 26/2/1977 for renewal of his ration card which had lapsed. Describing as to what happened and in what circumstances, he had scribed the hand note, he has testified thus: While I was in the office of the accused Niranjan Khemka came. At first the accused asked Niranjan Khemka as to why he has not brought the rice for which the accused gave money to Niranjan Khemka. Niranjan Khemka told that due to some difficulty he could not bring the rice. Then the A. C. S. O. became annoyed with P. W. 8, Niranjan Khemka. Then the accused told Niranjan Khemka that if he cannot bring the rice he should have returned the money so that the accused could purchase rice from elsewhere. P. W. 8 Niranjan Khemka told the accused due to some difficulty he could not give rice and that he will not misappropriate the money of the accused. P. W. 8 Niranjan Khemka has further stated that if the accused does not believe him he is prepared to give a receipt in writing for the money in question and that he will return the money of the accused within four to five days. Then the accused asked P. W. 8 to execute a receipt. Then P. W. 8 asked me to write a receipt and I had written the receipt Ext. C/i. Although no consideration was passed on 26-2-77 as P. W. 8 had taken money previously from the accused, I scribed the receipt Ext. C/1 in the form which I thought it to be fit. After scribing Ext. C/i I read over and explained to P. W. 8 and thereafter P. W. 8 gave his signature Ext. C/i. Although no consideration was passed on 26-2-77 as P. W. 8 had taken money previously from the accused, I scribed the receipt Ext. C/1 in the form which I thought it to be fit. After scribing Ext. C/i I read over and explained to P. W. 8 and thereafter P. W. 8 gave his signature Ext. C. When P. W. 8 gave his signature on Ext. C/i, I suggested that a revenue stamp has to be fixed to Ext. C/i. The accused said that a receipt has been executed and it is not necessary to affix a revenue stamp on Ext. C/i. At the same time Niranjan Khemka went outside and got a revenue stamp and affixed the same in Ext. C/i Niranjan Khemka gave his signature in my presence on Ext. C/1 and I crossed the revenue stamp. ( 17 ) I have been taken through the cross examination of this witness. Nothing sub-Stantial has been brought out discard his testimony. It is important to keep in mind that P. W. 8 has not disowned his signature in Ext. C/i He has however, taken a plea that the appellant had, on one occasion, taken his signature on a blank piece of paper. No reasonable explanation had been offered by P. W. 8 as to why he would sign on a blank piece of paper at the bidding of the appellant. After all he was a business man and was a dealer in essential commodities. D. W. 1 has clearly stated the circumstances which led to the execution office C/i in the office of the appellant. P. W. 8 has admitted his signature (Ext. C) in Ext. C/i. He has, however, tried to explain that the appellant and the Supervisor of Supplies had obtained his signature on a blank paper and that he had signed in green colour with a green colour ball-pen in Ext. C/i. It is, however, noticed that Ext. C is not in green colour and P. W. 8 was constrained to make another statement that he had signed Ext. C in a blue colour ball pen. C/i. It is, however, noticed that Ext. C is not in green colour and P. W. 8 was constrained to make another statement that he had signed Ext. C in a blue colour ball pen. P. W. 8 had not stated either before the Sub divisional Officer in the course of the enquiry or in the first information report or in his statement before P. W. 12 that he had given his signature and initial on a blank paper at the time of the seizure of the stock and sale registers by the appellant. In view of these facts and circumstances, the assertion of P. W. 8 in this regard cannot be accepted. It would follow that he had willingly and voluntarily executed a hand- note (Ext. C/i) which contained his signature (Ext. C ). ( 18 ) IT would not be out of place to mention here that P. W. 8 has admitted in his evidence that sometimes they used to supply fine varieties of rice to the Inspector of Supplies and other officers. In addition, P. W. 8 has not stated, in terms, in his evidence that he paid Rs. 200. 00 to the appellant in pursuance of the demand made by the latter as bribe on 28/3/1977. He has stated that he paid Rs. 200. 00 consisting of four fifty G. C. notes (M. Os. 1 to IV) and the accused asked him as to how much amount was- being paid and he told him that it was Rs. 200. 00. The accused took the amount in his right hand, counted the same and kept it in his left side shirt pocket. He did not have any other talk with the appellant before he handed over Rs. 200. 00 to him. This was the evidence of P. W. 2. It would thus be clear that on the date of payment of Rs. 200. 00 by P. W. 8 to the appellant, no demand had been made by the appellant and the conversation which took place between the appellant and P. W. 8, as testified by the latter, would further lend assurance to the plea of the defence. It would thus be clear that on the date of payment of Rs. 200. 00 by P. W. 8 to the appellant, no demand had been made by the appellant and the conversation which took place between the appellant and P. W. 8, as testified by the latter, would further lend assurance to the plea of the defence. ( 19 ) THE aforesaid evidence and circumstances would show that the appellant has established his plea by preponderance of probabilities and unreasonably, his case has been thrown out by the trial court without giving due consideration to the circumstances appearing in the evidence in support of his defence. ( 20 ) FOR the reasons aforesaid, the order of conviction recorded against the appellant under section 161 of the Indian Penal Code cannot also be sustained on facts and in law. ( 21 ) IN the result, the appeal succeeds and is allowed. The order of conviction and the sentences passed against the appellant under section 5 (2) read with section 5 (1) (a) and section (1) (d) of the Act and under section 161 of the Indian Penal Code are set aside. Appeal allowed.