JUDGMENT : K.P. Mohapatra, J. - The Appellant, an Executive Engineer of the Orissa State Electricity Board has challenged the judgment passed by the learned Special Judge (Vigilance), Sambalpur, convicting him u/s 5(1)(d) read with Sub-section (2) of the Prevention of Corruption Act (hereinafter referred to as the Act) and Section 161 of the Indian Penal Code (for short I.P.C.) and sentencing him to undergo rigorous imprisonment for one year and to pay a fine of Rs. 500/- in default, to undergo rigorous imprisonment for one month more. 2. Prosecution case shorn of unnecessary details is that in February, 1979 the Appellant was posted as the Executive Engineer of Sundargarh Electrical Division with headquarters at Rajgangapur. P.W. 5 was serving as an employee under Nominal Muster-Roll (for short N.M.R.) of the Division. He expected promotion to the higher post of helper and learnt that if the Appellant was paid a bribe of Rs. 1000/-, he would issue the promotion order. He did not, however, have the courage to approach the Appellant directly and offer the bribe. So, he sought for the help of his friend, P.W. 3 who agreed to help. P.W. 3, therefore, met the Appellant and put up the proposal to which the latter stated that if a sum of Rs. 1000/- shall be paid to him, than he will issue the promotion order of P.W. 5. At the first instance P.W. 5 arranged a sum of Rs. 600/- and the amount was paid by P.W. 3 to the Appellant on 15-2-1979. The Appellant, therefore, assured to issue the promotion order but with a threat that unless the balance amount of Rs. 400/- was paid by 15-3-1979, the promotion order shall be cancelled. The promotion order, however, was never issued and when again approached the Appellant undertook to issue the same by 10-3-1979 with a threat that cancellation would follow unless the balance amount was paid by 15-3-1979. Both P.Ws. 3 and 5 were annoyed and decided to report the matter to the vigilance police. P.W. 5 arranged for a sum of Rs. 500/- and paid the same to P.W. 3 to proceed to sambalpur to lodge report at the Vigilance Police Station. Accordingly, P.W. 3 came to sambalpur on 15-3-1979 and lodged the F.I. R. (Ext-1) at the Vigilance Police Station. The Superintendent of Police (Vigilance), sambalpur immediately directed investigation and trap of the Appellant. 500/- and paid the same to P.W. 3 to proceed to sambalpur to lodge report at the Vigilance Police Station. Accordingly, P.W. 3 came to sambalpur on 15-3-1979 and lodged the F.I. R. (Ext-1) at the Vigilance Police Station. The Superintendent of Police (Vigilance), sambalpur immediately directed investigation and trap of the Appellant. Therefore, the vigilance party arrived at Sundargarh and all necessary arrangements were made and reports prepared; and services of an Executive Magistrate obtained so as to lay the trap on 16-3-1979. On 16-3-1979 the Vigilance Police squard among with the Executive Magistrate and P.W. 3 proceeded to Rajgangpur. In the after-noon when the Appellant was sitting inside his office, P.W. 3 approached and paid the sum of Rs. 400/- which was accepted by the Appellant who counted the amount and kept the same inside his table drawer. On receiving signal from P.W. 3, the investigating officer with the raiding party entered inside the office room of the Appellant, disclosed their identity and demanded the amount. The Appellant produced the sum of Rs. 400/- which was seized. Further investigation was carried and a consolidated report of investigation was submitted to the State Government for obtaining sanction for prosecution of the Appellant. After sanction was accorded, charge-sheet was submitted against the Appellant. 3. The plea of the Appellant was that he had no authority to give promotion to P. W. 5 from the post of N.M.R. to that of helper. Therefore, there was no question of his acceptance of bribe from P.W. 5 through P.W. 3 to give promotion to the former. According to him, he was not pulling on well with one S.S. Dani who was the Secretary of the Workers' Union. S.S. Dani connived with P.W. 3 who was a spy of the Vigilance Department and foisted a false case against him taking advantage of a peculiar situation in which he had been placed, He stated that he was under orders of transfer since November, 1978 and wanted to dispose of his cows and, clues. P.W. 3 had approached him earlier for the purpose of purchasing a calf for Rs. 300/-. On 16-3-1979 P.W. 3 again came to him and offered a sum of Rs. 400/- as the price of the calf. The Appellant told him that he had higher offer for the calf. 50 P.W. 3 practically forced him to keep the sum of Rs. 300/-. On 16-3-1979 P.W. 3 again came to him and offered a sum of Rs. 400/- as the price of the calf. The Appellant told him that he had higher offer for the calf. 50 P.W. 3 practically forced him to keep the sum of Rs. 400/- as advance promising to pay the balance and kept the amount in the table drawer. He admitted that he brought out the sum of Rs. 400/- from the table drawer and handed it over to the Investigating Officer at the time of raid. 4. The learned trial Judge held that the Appellant had received the sum of Rs. 400/- from P.W. 3 as bribe with promise to show favour to P.W. 5 by promoting him to the post of helper. Accordingly, he recorded the order of conviction and sentence. 5. P.W. 3 stated in his evidence that he paid Rs. 400/- to the Appellant on 16-3-1979 in the office. P.W. 9, the Investigating Officer, who was a member of the raiding party stated that he found P.W. 3 and the Appellant inside the office room of the latter. After giving his identity, he demanded from the Appellant to produce the sum of Rs. 400/-. He took the hand wash of the Appellant with solution which became pink in colour. Thereafter, the Appellant became pale and brought out the sum of Rs. 400/- in currency notes which were seized by P.W. 9 under seizure-list (Ext. 3). The numbers of the notes tallied with the numbers which he had secured at the stage of preparation from P.W. 3. His evidence has been corroborated by the evidence of P.W. 7 another Inspector of Vigilance and P.W. 8, the Executive Magistrate both of whom were members of the raiding party. In his statement u/s 313, Code of Criminal Procedure the Appellant admitted as follows: From Nov. 78, I was under orders of transfer. I had cattle which I wanted to dispose of. This desire of mine was known to the staff and other local people. Once Mohan Seth came to my house and enquired from me if I wanted to sell my cattle. I answered in the affirmative. He told me that he wanted to purchase a calf and offered to pay Rs. 300/-. I told him that I had a higher offer. Once Mohan Seth came to my house and enquired from me if I wanted to sell my cattle. I answered in the affirmative. He told me that he wanted to purchase a calf and offered to pay Rs. 300/-. I told him that I had a higher offer. On 16-3-1979, he again came while I was in the office and asked me to settle the price. I asked him to wait, but he said that he was interested for the calf and asked me to keep Rs. 400/- as advance and to pay balance if any compared to other offers. Inspite of protest, he brought out the notes from his pocket and pushed them to my left hand. When I denied to keep the money and to give it after the deal is settled, he kept the amount in the drawer of the table. From the aforesaid evidence of the prosecution witnesses and the admission of the Appellant it is crystal clear that the Appellant had received a sum of Rs. 400/- from P.W. 3 which was not his legal remuneration. Therefore, according to the provisions of Section 4(1) of the Act, the presumption that could be raised was that the amount accepted by the Appellant did not represent his legal remuneration in any form. Therefore, in order to escape from the consequences of the presumption, the burden would lie on the Appellant to establish by preponderance of evidence that he had accepted the sum of Rs. 400/- from P.W. 3 not as bribe to promote P.W. 5 to the higher post of Helper, but he had accepted the amount as advance for sale of a calf which exactly was his defence at the trial. In this connection, reference can be made to V.D. Jhangan Vs. State of Uttar Pradesh. It was held that to raise the presumption u/s 4(1) of the Act, the prosecution has to prove that the accused has received gratification other than legal rumination. When it is shown that the accused has received a certain sum of money which was not his legal remuneration, the condition prescribed by the section is satisfied and the presumption must be raised. When it is shown that the accused has received a certain sum of money which was not his legal remuneration, the condition prescribed by the section is satisfied and the presumption must be raised. It was further held that the burden of proof lying upon the accused will be satisfied if he establishes his case by a preponderance of probability as is done by a party in civil proceedings It is not necessary that he should establish his case by the test of proof beyond a reasonable doubt. The same view was expressed in Chaturdas Bhagwandas Patel Vs. The State of Gujarat, 6. The Appellant's defence as already referred to above was that he was under orders of transfer from Rajgangpur since November, 1978 He had a few cows and calves which he intended to sell. P.W. 3 wanted to purchase a calf for which he had approaded him earlier. On 16-2-1979 he came to his office room and wanted to pay a sum of Rs. 400/- as the price of the calf. But he did not accept the amount and said that he had better offers. Therefore, P.W. 3 requested him to accept the amount of Rs. 400/- as advance so that he would make further payment and finalize the same. He practically forced the Appellant to accept the amount and kept it in the drawer of the table. It is for consideration how far such a plea can be believed by preponderance of evidence adduced by the prosecution, as well as the Appellant, and the circumstances and probabilities. On its face, in ordinary circumstance such a defence would seem improbable because, a non-entity like P.W. 3, even if he would have intended to purchase a calf from the Appellant, he could not have forced him to receive the sum of Rs. 400/- against his will. But the facts borne by the evidence of this case are a bit peculiar and are discussed below. The foundation of the raid and the trap was laid by P.W. 5. As an N.M.R. employee serving under the Appellant he desired promotion to the post of Helper and understood from others that the Appellant was receiving bribe of Rs. 1000/- to give such promotion. Therefore, he arranged money and paid a sum of Rs. The foundation of the raid and the trap was laid by P.W. 5. As an N.M.R. employee serving under the Appellant he desired promotion to the post of Helper and understood from others that the Appellant was receiving bribe of Rs. 1000/- to give such promotion. Therefore, he arranged money and paid a sum of Rs. 600/- with the help of P.W. 3, On such payment, the Appellant promised to issue the promotion order but did not do so. When again approached, he gave out that he would issue the promotion order, been cancel the same unless the balance amount of Rs. 400/- was paid by 15th or 16th February, 1979. This is said to have been the cause for annoyance of P.Ws. 3 and 5 for which F.I.R. was lodged at the Vigilance Police Station, Sambalpur and the raid and trap were arranged. P.W. 5 when examined in Court made a clear-cut denial of his participation in the above event. He stated that he did not know P.W. 3 and never approached him for help in getting promotion to the post of Helper. Although he was declared hostile and was permitted to be cross-examined by the prosecution, except the contradiction nothing useful was elicited for proof of the prosecution case. By such denial, evidence on oath in Court, the very foundation of the prosecution case was demolished. 7. According to the prosecution case, P.W. 5 arranged a loan of. Rs. 500/- from P.W. 1, a former advocate's clerk for payment to the Appellant. In his evidence, however, P.W. 1, denied the entire story which was put to his mouth by the prosecution during investigation and stated that neither P.W. 3 or P.W. 5 approached him for any purpose thereby implying that he did not advance loan of Rs. 500/- to the latter. On the other hand, in cross-examination he spited that P.W. 3 was a Court bird. The evidence of this witness clearly rules out the participation of P.W. 5 in the raid and the trap and thus the foundation of another pillar of the prosecution case collapsed. 8. P.W. 2 had nothing to say with regard to the raid and the trap. He told his own story that on payment of bribe of Rs. The evidence of this witness clearly rules out the participation of P.W. 5 in the raid and the trap and thus the foundation of another pillar of the prosecution case collapsed. 8. P.W. 2 had nothing to say with regard to the raid and the trap. He told his own story that on payment of bribe of Rs. 500/- he earned his promotion to the post of Helper from that of N.M.R. So for as the present case is concerned, his evidence is irrelevant. 9. P.W. 4 an advocate's clerk of Sundargarh, accompanied P.W. 3 to the Inspection Bungllow at Sundargarh where preparation for raid and trap was made and then he accompanied the raiding party to Rajgangpur. According to his evidence, after arriving at the Appellant's office at about 3.30 to 4 p.m., P.W. 3 entered into the chamber and he remained outside. He did not hear the conversation that took place between them. P.W. 5 gave the signal by scratching his head and the signal was passed on to the other members of the raid. He did not see the actual payment of cash by P.W. 3 to the Appellant. The Appellant when confronted stated that he had not received any amount from P.W. 3, The notes were seized. This witness was also declared hostile by the prosecution and he stated that on being threatened by the Inspector he had stated before the Magistrate that the Appellant demanded money and P.W. 3 brought out the money from his pocket and handed over the same to him. In cross-examination he stated that the Appellant told the Inspector that the did not accept any bribe. On the other hand, he stated that he had received the money on some other account. He made an important statement by saying that D.W. 5 was also present when the preparation was made in the Inspection Bungalow. 10. P.W. 3 supported the prosecution case by relating the story from the beginning to the end which needs no repetition. The sum and substance of his version is that he was approached by P.W. 5 to help, him to get promotion to the post of Helper by paying bribe to the Appellant. First of all a bribe of Rs. 600/- has paid by him and on the day of the laid and the trap he paid a sum of Rs. 100/- to the Appellant. First of all a bribe of Rs. 600/- has paid by him and on the day of the laid and the trap he paid a sum of Rs. 100/- to the Appellant. Except the preparation of the trap and payment of the sum of Rs. 400/- to the Appellant on 16-2-1979 no other part of the evidence of this witness his been corroborated. On the other hand, it would appear from his cross-examination that the entire staff of the office of the Appellant were witnessing the raid from outside. None of them came inside the chamber. During his conversation with the Appellant his Steno and the Head Clerk and some other Clerks one into the chamber with some files. If the above statements are believed, then the prosecution else of the Appellant brazenly taking bribe inside the office in the presence of all seems improbable. 11. The Vigilance Police Officers and the Magistrate who took part in the raid and the trap have been examined and in view of the fact that the Appellant himself admitted that P.W. 3 had paid a sum of Rs. 400/- by keeping the amount in his table drawer, which was seized, it is not necessary to make specific reference to their evidence. 12. The Appellant examined a number of defence witnesses. Out of them reference is to be made to the evidence of D.W. 2, the Stenographer, D.W. 3 a clerk of the Appellant's office at Rajgangpur and D.W. 5 a clerk in the office of the S.D.O. (Civil), Sundargarh. It will appear from the evidence of D.Ws. 2 and 3 that they were present when P.W. 3 came inside the office room of the Appellant and had conversation with him. According to their version, P.W. 3 wanted to purchase it calf from the Appellant and on that account paid the amount of Rs. 400/- as advance. They clearly supported the, defence case to the effect that on transfer, the Appellant intended to sale some cows and calves and P.W. 3. made enquiries and as he wanted to purchase a calf, he paid the amount as advance. Out of these defence witness D.W. 5 stated that he was present at the time of the raid. 13. Inscrutable are the ways of human beings. made enquiries and as he wanted to purchase a calf, he paid the amount as advance. Out of these defence witness D.W. 5 stated that he was present at the time of the raid. 13. Inscrutable are the ways of human beings. Although the Appellant was a high and well paid officer, yet on transfer he might have intended to sell away his cows and calves. This was not an unusual feature because, many officers, on transfer, sell away cattle and even household goods such as, furniture etc. P.W. 3 might have intended to purchase a calf and en that account paid advance of Rs. 400/- to the Appellant on the date of occurrence. This occasion might have been utilized for the purpose of trapping the Appellant for some reason which has not come out. Therefore, although the defence would ordinarily appear not to be probable, yet it cannot be said that in special circumstances it was impossible. Therefore, on consideration of the entire evidence adduced in the case, the probabilities circumstances and possibilities, I am of the view that the prosecution has not proved its case against the Appellant beyond reasonable doubt and the defence was either probable or possible. This being the positron, the judgment of conviction and sentence of the Appellant cannot be sustained, because the Appellant is bound to be given the benefit of doubt. 14. In the result, the appeal is allowed and the impugned judgment is set aside. The Appellant is acquitted of all charges. He is set at liberty and the bail bond is discharged. Appeal allowed. Final Result : Allowed