JUDGMENT 1. - The appellant, in this case, has been convicted by the Special Judge, Anti-corruption, Kota for the offences under Section 161 IPC, and Section 5 (2) read with Section 5 (1) (d) of the Prevention of Corruption Act and sentenced as under: U/S 161 IPC One Year R. I. U/S 5 (2) read with Two Years R. I. and Section 5 (1) (d) of the Prevention of Corruption Act a fine of Rs. 1,000/- and in default of payment of fine to undergo three months rigorous imprisonment 2. Both these substantive sentences have been ordered to run concurrently. 3. The appellant has preferred this appeal against this conviction made on 5th Feb., 1980. 4. The case of the prosecution may be looked into first. The appellant at the relevant time in Feb. 1978 was posted as Junior Engineer in the Command Development Area, Anta Sub-Division. The person who is said to have paid illegal gratification to him is Bhanu Prakash, who was a contractor for carrying material from Amalsara to the Canal site in Anta Sub-Division. This Bhanu Prakash was paid a sum of Rs. 22,000/- in the beginning of 1978 on account of bill prepared for the work done by him. This work was measured according to the entries made in the measurement books. The prosecution case is that on 18th Feb. 1978, Bhanu Prakash went to the appellant to get his work measured, then the appellant demanded 3 per cent commission on the amount of Rs. 22,000/-, which had already been paid to him. Bhanu Prakash (PW. 3) was not prepared to pay this commission. Therefore he along with his brother Harswaroop Sharma (PW. 1) contacted the Additional Superintendent to Police (PW. 7) Shri Nathi Lal on 21st Feb. 1978. When Bhanu Prakash (PW. 3) disclosed that he wanted to get the appellant trapped while accepting the bribe demanded by him, necessarily formalities were performed. Notes of Rs. 660/- were powdered with phenolphthalein in the presence of witnesses and necessary memos were prepared in which the numbers of currency notes were noted. Two witnesses, namely, Laxmi Narain, PW. 2, and Sugna Ram, PW. 5, were taken and the party of the Additional S. P. proceeded to Anta on the same day i. e. on 21st Feb. 1978. 660/- were powdered with phenolphthalein in the presence of witnesses and necessary memos were prepared in which the numbers of currency notes were noted. Two witnesses, namely, Laxmi Narain, PW. 2, and Sugna Ram, PW. 5, were taken and the party of the Additional S. P. proceeded to Anta on the same day i. e. on 21st Feb. 1978. At Anta, Bhanu Prakash, his brother Har Sahai and the appellant had tea at a stall and then they proceeded towards the house of the appellant. In the way the appellant asked if he had brought the commission money and this was paid by Bhanu Prakash when they were about to reach the house of the appellant. The notes which had been powdered with phenolphthalein were handed over to the appellant and thereafter Bhanu Prakash gave the signal as previously agreed upon and the ACD party reached the place soon after. Sugna Ram and Har Swaroop who were walking behind the appellant and Bhanu Prakash were also came there. Nathi Lal, Addl. S. P. asked the appellant about the money given by Bhanu Prakash and at that time the appellant gave the explanation that the money had been given to him by Bhanu Prakash for handing it ever to his brother Laxmi Narain, at Amalsara, as Laxmi Narain had to pay money to the labour. He denied that he had accepted the money by way of bribe from Bhanu Prakash. He had even stated at that time that he had not counted the money which had been given by Bhanu Prakash. The notes were recovered and necessary memos were prepared and signed by the witnesses. The explanation given by the appellant is mentioned in the report Ex. P/14. The Additional S. P. ACD completed the investigation and after obtaining sanction for prosecution as required by section 6 of the Prevention of Corruption Act challaned the appellant before the Court of Special Judge. 5. The Special Judge, has convicted the appellant as stated above. 6. From the facts which have been stated above, it can be said that a few things are not in dispute and they are that a sum of Rs. 22,000/- was paid by two cheques to Bhanu Prakash a few days prior to 21-2-1978, and that Bhanu Prakash was a contractor for transporting material from Amalsara to the work site. 6. From the facts which have been stated above, it can be said that a few things are not in dispute and they are that a sum of Rs. 22,000/- was paid by two cheques to Bhanu Prakash a few days prior to 21-2-1978, and that Bhanu Prakash was a contractor for transporting material from Amalsara to the work site. It is also not in dispute that money was recovered from the pocket of the appellant and that tests for the presence of phenolphthalein had been conducted after recovery of the currency notes. 7. The questions which can be said to be in controversy are: (1) Whether the appellant had demanded illegal gratification on 18-2-1978 as has been said by Bhanu Prakash; and (2) Whether the appellant accepted this sum of Rs. 660/- by way of illegal gratification or this amount was paid to him by Bhanu Prakash for delivery to his brother Laxmi Narain at Amalsara? 8. The learned counsel for the appellant has attacked the finding of the learned Special Judge on a number of grounds and his main contentions are that there is no finding about demand of bribe on 18-2-1978 and according to him this demand could not have been made at the time alleged by Bhanu Prakash because on that day the appellant was at Kota and not at Anta where the demand is alleged to have been made. His other contentions are that the witnesses, namely, Sugna Ram and Laxmi Narain, who are said to have been present at the time when the currency notes were given to the appellant were not within hearing distance and could not have heard the conversation that passed between the appellant and Bhanu Prakash and therefore they cannot be the witnesses to the purpose for which the money was given. Even the learned Special Judge has not believed that part of the testimony of these witnesses where they have stated that the appellant asked for commission at 3 per cent from Bhanu Prakash before accepting Rs. 66/-. Testimony of these witnesses has been attacked by the learned counsel for the appellant on the ground that they are interested witnesses. PW 1 Har Swaroop is the real brother of the decoy Bhanu Prakash. This Har Swaroop is a lecturer in Mathematics in Government College Kota and the other two trap witnesses viz. 66/-. Testimony of these witnesses has been attacked by the learned counsel for the appellant on the ground that they are interested witnesses. PW 1 Har Swaroop is the real brother of the decoy Bhanu Prakash. This Har Swaroop is a lecturer in Mathematics in Government College Kota and the other two trap witnesses viz. PW 2 Laxmi Narain and PW 5 Sugnaram are also lecturers in the same subject and at one time Laxmi Narain was a student of Har Swaroop. PW 2 Laxmi Narain and PW 5 Sugna Ram residing together. Hence this much is clear that the three witnesses are all colleagues besides there being the relationship of teacher and student between two of them. 9. Another contention of the learned counsel for the appellant is that, normally if a person made a demand for bribe he would have asked for it before the bill money was paid to the contractor and not at a time when the question of measuring further work would arise. This aspect is said to be unnatural. 10. Besides contending about the discrepancy in the prosecution evidence, it has been contended that the appellant gave out an explanation soon after the Additional S. P. recovered the currency notes from him and he has led evidence to show that Bhanu Prakash and his brother Laxmi Narain had taken a loan of Rs. 600/- from DW 1 Bhanwar Singh and it was this money that Bhanu Prakash wanted to send to Laxmi Narain at Amalsara along with Rs. 60/- for payment of rent for the house which had been taken on rent at that place. It has been contended that this theory of the defence has been proved by proper evidence and referring to the legal position in this respect it has been contended that the burden of proof on the accused is not similar to the burden of proof on the prosecution which has to prove its case beyond all reasonable doubt. The burden of proof on the accused can be said to be discharged if his explanation is found to be plausible and if he has been able to prove by preponderance of probabilities that his version is correct. Certain decisions have been cited in this connection and they may be looked into. 11. The burden of proof on the accused can be said to be discharged if his explanation is found to be plausible and if he has been able to prove by preponderance of probabilities that his version is correct. Certain decisions have been cited in this connection and they may be looked into. 11. In Ram Prakash Arora v. State of Punjab, AIR 1973 S.C. 498 , it has been held that evidence of interested and partisan witnesses who are concerned in the success of the trap must be tested in the same way and that of any other interested witness. In a proper case the Court may look for independent corroboration before convicting the accused persons. When there was no independent search witness and no other evidence from which any corroboration could be found of the evidence given by the members of the raiding for the accused in the case was acquitted. 12. In Bhajan Singh v. State of Punjab, AIR 1977 S.C. 674 , there were contradictions on material points in the evidence of some of the prosecution witnesses, these contradictions suggest that defence version could not be thrown when the infirmities in the prosecution case were such which cost legitimate doubt on the truth of the prosecution story then the conviction was not sustained. 13. In State of Rajasthan v. B.K. Roy, 1984 Cr.L.R. (Raj.) 109 , it has been held that the presumption under Section 4 of the Prevention of Corruption Act may be available for the charge under Section 161 IPC. But such presumption is not available for the offence under Sections 5(1) (d) and 5(2) of the Prevention of Corruption Act. It is further held that if there is evidence showing the probability of the defence version, then the presumption would stand rebutted. 14. In Rameshwar Prasad Trivedi v. State of Rajasthan, 1978 WLN 568 the nature of burden of proof on the accused persons to the presumption under Section 4 of the Prevention of Corruption Act was considered and it was held that accused is not to prove his innocence beyond all reasonable doubt. The burden of proof stands discharged if he establishes his case by preponderance of probabilities as in a civil case. In the circumstance of the case it was held that the accused received the repayment of loan rather than the bribe. 15. The burden of proof stands discharged if he establishes his case by preponderance of probabilities as in a civil case. In the circumstance of the case it was held that the accused received the repayment of loan rather than the bribe. 15. The basic case in this respect can be said to be Man Singh v. Delhi Administration, AIR 1979 SC 1455 , wherein it has been held that if the accused offers probable explanation or defends then it is sufficient and strict standard of proof is not applicable to him. 16. Keeping these guide lines in view the evidence in the present case is to be examined. First of all I shall look into the evidence about the demand of bribe said to have been made by the appellant. For this purpose the only evidence is that of PW. 3 Bhanu Prakash. It appears from his statement that the appellant used to ask his commission a number of times and that he had asked for it even when the bill for Rs. 22,000/- was prepared. According to this witness the appellant had said that he would measure the further work only after his commission was paid to him. The witness has not been able to give the date on which the commission was demanded by the appellant. But then he said that it was demanded at about 11.00 a. m. on 18-2-1978. This sort of evidence cannot be said to be of a very convincing and in absence of there being any other witness to this demand, it is difficult to accept it without any corroboration. 17. On relevant fact can be gathered from the statement of PW. 4 R. S. Sirohi, who was Assistant Engineer, under whom the appellant was working. He has stated that the brother of Bhanu Prakash quarrelled with Narotam Met and Rajkaran Singh, and an enquiry into this was being conducted by the appellant. 18. The interest of PW. 8 Laxmi Narain and Sugna Ram PW. 5 in the success of trap has been seen above. They were not independent witnesses but were colleagues of PW 1 Harswaroop, brother of Bhanu Prakash. Even the trial court stated that it cannot be believed that these two witnesses over heard the conversation which passed between the appellant and Bhanu Prakash at the time when the money was handed over. They were not independent witnesses but were colleagues of PW 1 Harswaroop, brother of Bhanu Prakash. Even the trial court stated that it cannot be believed that these two witnesses over heard the conversation which passed between the appellant and Bhanu Prakash at the time when the money was handed over. In such circumstances the explanation given by the appellant becomes more relevant. While dealing with this explanation it can be said that it was not offered as an after thought but was offered at the spot itself when the Addl. S. P. Nathi Lal questioned him about it. This explanation finds place in the memo Ex. P/20. But PW 5 Sugna Ram, who is very much interested in supporting the story of Bhanu Prakash has not accepted as to what explanation was given by the appellant, at the time when money was recovered from him. 19. The appellant has given his own explanation and has also examined witness in support of his case. DW 1 Bhanwar Singh, who is person whose house was taken on rent by Bhanu Prakash and his brother Laxmi Narain, he has deposed that the rent was Rs. 60/- per month and besides this they had borrowed a sum of Rs. 600/- for making payments to the labour. For this purpose a slip Ex. D/3 was written by Laxmi Narain, brother of the decoy and this Ex. D/3 was also signed by DW 2 Bhanshi Lal. The appellant himself in his statement under Section 313 Cr. P. C. has given the details of the explanation given by him to the Addl. S. P. and also about the fact that Bhanwar Singh, who had given the loan of Rs. 600/- was insisting about the repayment of loan and also for getting rent of the house let out by him. This Laxmi Narain who is brother of Bhanu Prakash has not been questioned by the prosecution inspite of the explanation offered by the accused at the time the money was recovered from him. The most relevant thing could have been the conversation at the time the money was given to the appellant but for this there is statement of Bhanu Prakash against that of the accused. By examining Bhanwar Singh as a witness and offering explanation at the time when the Addl. S. P. took the money from the appellant, he has made the explanation probable. By examining Bhanwar Singh as a witness and offering explanation at the time when the Addl. S. P. took the money from the appellant, he has made the explanation probable. The money would have been given to the accused for giving it to Laxmi Narain at Amalsara. This probability can be supported find by the (illegible) evidence about demand of bribe is not very convincing and that the demand of commission was made only after several days after payment of the previous bill had been made. Normally the commission would have been demanded while making the payment of bill amount. Bhanu Prakash has admitted that he lived in the house of Bhanwar Singh in Amalsara as a tenant so the introduction of Bhanwar Singh cannot be said to be without basis. The unconvincing evidence about the demand, interested and related witnesses accompanying the trap party and the circumstance that the demand of commission after making the payment of the bill is not likely, are all factors which go to make the explanation of the accused probable. The interestedness of Sugna Ram and Laxmi Narain can also be judged by the fact that on different occasions they had advanced short term loan to Bhanu Prakash in order to do his contract work. In such circumstances the loan taken from Bhanwar Singh also becomes probable. The explanation offered by the appellant is supported by evidence also and is sufficient to make a dent in the evidence of the prosecution and to rebut the presumption that the money accepted by the accused was by way of bribe. Looking to the evidence in this case, I hold that the explanation offered by the accused appellant is plausible on the basis of preponderance of probabilities and the case of the prosecution cannot be held to be proved. The conviction and sentence of the appellant have to be set aside. 20. This appeal is accepted and the conviction and sentence of the appellant is set aside.Appeal allowed. *******