D. P. S. CHAUHAN, J. ( 1 ) IN a case of trap, a charge-sheet was submitted against the appellant on the basis whereof, a Special Case No. 7 of 1984 for commission of offence under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act, 1947 (hereinafter referred to as the Act) and Section 161. I. P. C. was registered for taking bribe of Rs. 50/- from the complainant Vijay Kumar on 28-4-82 wherein the appellant vide judgment and order dated 9-4-86, was convicted and sentenced to one year's R. I. together with fine of Rs. 1,000/- and in default of payment of fine, the appellant was required to undergo 3 months' R. I. ( 2 ) THE prosecution case in brief is that one Vijay Kumar, the complainant, who was the student, pursued his studies for B. Com. Part II Examination in the T. R. S. College, Rewa (for brevity, hereinafter referred to as the College), having passed B. Com. Part 1 Examination from Shahdol. He claimed for facility of Scholarship wherefor he was entitled as he was the ward of the deceased Government servant and to the wards of the deceased Government servants, the scholarship was payable and apart from this, such scholarship was paid to him when he was at Shahdol, studying in B. Com Part I. He submitted his application for scholarship to the appellant who was said to be the Dealing Clerk in the College but despite persuasion, the complainant did not receive any favourable response as a result whereof, he approached the Principal of the College from whom also, no satisfactory response was received by him. He thereafter on 27-4-82, contacted the appellant for pushing through his application for grant of scholarship wherefore he demanded a sum of Rs. 100/- but the bargain was settled at Rs. 75/-, out of which Rs. 50/- was to be paid immediately and the balance of the amount was to be paid on sanction of the scholarship. On getting offended, the complainant Vijay Kumar approached the Collector, Rewa, who directed for legal action in the matter through local Vigilance authorities whereupon, Vijay Kumar on 28-4-84, along with his friend Santosh Kumar, approached the Vigilance Officer and deposited with him a sum of Rs. On getting offended, the complainant Vijay Kumar approached the Collector, Rewa, who directed for legal action in the matter through local Vigilance authorities whereupon, Vijay Kumar on 28-4-84, along with his friend Santosh Kumar, approached the Vigilance Officer and deposited with him a sum of Rs. 50/- currency notes, who, completing the necessary formalities in the presence of Ajay Shatru, a Deputy Collector and one Moreshwar Vyas, (PW 1), proceeded in party to T. R. S. College where Vijay Kumar and the accused visited the College canteen and while the accused was coming out of the canteen, the currency notes, on demand being made by him, were handed over to him by Vijay Kumar who released the signal to the trap party whereat Moreshwar Vyas and the Vigilance Officer Mr. R. N. Singh rushed and caught the accused red-handed and search being made, currency notes, which were put into his pocket, were recovered and the phenolphthalein powder test was found in positive. ( 3 ) ON obtaining the requisite sanction as required under the law (Ex. P-19), the accused faced the trial for the charges levelled against him. On the basis of the report written by R. N. Singh, Inspector Vigilance Police Special, Rewa registered a Crime No. 0 of 82, on 28-4-82, at 1700 hrs. which is Ex. P-25. On the basis of the said report, which was sent to the Vigilance Police Special, Bhopal, Criminal Case No. 42/82 was registered on 28-5-82 at 5 p. m. at Vigilance Police Special, Bhopal Police Station for offences under Section 161, I. P. C. and u/s. 5 (1) (d) r/w 5 (2) of the Act (Ex. P-26 ). ( 4 ) PROSECUTION examined as many as 10 witnesses. Moreshwar, who was on the relevant date, posted as Statistical Officer in Rewa and who was required for joining the trap party as directed by the Commissioner, Vigilance, was examined as PW 1. Santosh Kumar Shrivastava, who was a friend of Vijay Kumar, the complainant, was examined as PW 2. Sadhulal, who was Police Constable posted in the Lokayukt Office, was examined as PW 3. S. P. Dubey, who was Principal of the College was examined as PW 4. K. K. Gidwani, from whom the enquiry was made from Lokayukt Office, was examined as PW 5. Gajraj Prasad, Constable, who was posted in the office of Vigilance, was examined as PW 6. S. P. Dubey, who was Principal of the College was examined as PW 4. K. K. Gidwani, from whom the enquiry was made from Lokayukt Office, was examined as PW 5. Gajraj Prasad, Constable, who was posted in the office of Vigilance, was examined as PW 6. R. D. Srivastava, who was the Private Secretary of the Secretary, Higher Education, Madhya Pradesh, Bhopal, was examined as PW 7. Vijay Kumar, who was working in the State Bank of India Branch, Shahdol and a person who was then the complainant Vijay Kumar (sic), was examined as PW 8. Matasewak Pandey, who was the Head Constable in the Lokayukt, was examined as PW 9 and R. N. Singh, Deputy Superintendent of Police, Vigilance, Rewa was examined as PW 10. Ajat Shatru, who was also a member of the trap party and was the witness to Panchnama, was not examined in the case by the prosecution. ( 5 ) THE case of the appellant was that of denial and false implication and the appellant examined one Kunj Bihari as D. W. 1, Surajdeen Verma as DW 2 and Vijay Kumar Singh as DW 3 in support of his defence. ( 6 ) AFTER considering the material on record, the Special Judge recorded the findings. ( 7 ) THE case was heard on 8-8-96 but it was posted for rehearing vide order dated 3-10-96 and as such, this case is being taken up today. ( 8 ) TODAY, the cause list is revised but the learned counsel for the appellant is not present. Learned counsel for the State assisted the Court to his best ability. ( 9 ) THE case of the accused-appellant was that Vijay Kumar, complainant, was himself the defaulter in submission of his application for grant of scholarship which was not entertained by him on the alleged date of approach and the complainant misbehaved with him, extending threat to him of dire consequences. He and his associates also hurled abusive language against him, on expressing inability by the appellant to push through his application for scholarship, and as pressure tactics, the complainant resorted to this method of false implication in the crime. He and his associates also hurled abusive language against him, on expressing inability by the appellant to push through his application for scholarship, and as pressure tactics, the complainant resorted to this method of false implication in the crime. Apart from this, Vijay Kumar and his associates used force against him near the college canteen where he was taken aback by the persons of the Vigilance who forced him to accompany them in the jeep and he denied any conversation with Vijay Kumar in respect of bribe and payment of any gratification under any settlement of amount or acceptance of any amount, as alleged by the prosecution. ( 10 ) SO far as the authority of the appellant is concerned, the trial Court in Para 5 of its judgment has recorded a finding that it is true that the accused Ramkrishna was himself not the sanctioning authority. The scholarship payable to the wards of the deceased Govt. employees was to be sanctioned by the Principal of the College or an independently constituted authority in the name of Scholarship Officer posted in the Collegiate Education Directorate at Bhopal. It has also said that Vijay Kumar Shrivastava (PW 8) has no doubt defaulted on the fact of submitting his application in the month of January or March, 1984. Vijay Kumar in para 15 of his statement, admitted that the accused had not demanded any gratification prior to the date of the incident though the complainant had an opportunity to contact the accused number of times. It is a relevant statement having bearing on the case. When the accused did not make any demand for gratification prior to the date of the incident, then how the question of trap being organized could arise, in a situation when Vijay Kumar Shrivastava had met with the accused number of times earlier to the trap. ( 11 ) IT was submitted that PW 1 Moreshwar, PW 8 Vijay Kumar and PW 10 R. N. Singh, who after proceeding in the party to T. R. S. College, during the trap and after the completion of trap, did not furnish any plausible evidence which could be said to be a cogent evidence in law and the evidence which they led, was of no assistance to the prosecution for the purpose of corroboration. Phenolphthalein powder test in the face of the statement of Vijay Kumar Shrivastava, is of no legal value. Further in the face of the statement of Vijay Kumar Shrivastava, the story is not free from doubt that while coming out of the canteen, the accused made a demand of money from Vijay Kumar. PW 5 K. K. Gidwani in Para 3 of his cross-examination, has stated that for the year 1980-81, the scholarship was granted to Vijay Kumar while he was studying in Shahdol College. When Vijay Kumar was studying in T. R. S. College, Rewa, the scholarship for B. Com. Part II was sanctioned under the orders of the State Government and this order was sent by him to the College. It was on 1-5-84 that Vijay Kumar Shrivastava was sanctioned the scholarship for B. Com. Part II though it is subsequent to the incident in question. This fact goes to lend support to the defence that Vijay Kumar was adopting the pressurizing tactics. Further, Para 5 of his deposition clinches out the matter which says that the scholarship for B. Com. Part II could not have been sanctioned by the Principal of the T. R. S. College because when a student who has received the scholarship in one college, if he gets admission in another college, in second year, the power, to sanction the scholarship for the second year does not vest either with, the Principal of the earlier College or the Principal of the subsequent college. In such a situation, the record in relation to scholarship of such student is sent to Chhatravriti Adhikari (Scholarship Officer) who is the sanctioning authority, Santosh Kumar (PW 2) who is a witness during the trap and the friend of Vijay Kumar, does not corroborate the version of Vijay Kumar or R. N. Singh and plantation of such witness is sufficient to discard the evidence of the complainant Vijay Kumar. The trial Court in para 10 to its Judgment has stated that there was a feeble attempt to suggest the possibility of the money being planted by Vijay Kumar or his associates in the grappling near the canteen, D. W. 1 and D. W. 2 did suggest some untoward incident in the vicinity of the college canteen managed by Kunjbehari, and has also recorded the finding that Soorajdeen Verma, impliedly corroborates the prosecution version of a meeting of the accused and Vijay Kumar near the canteen. However, the Court observed that the only difference is that the accused on coming out of the canteen manhandled by some associates of Vijay Kumar DW 2, however, admits presence of some officers in civil dress who took the accused in the jeep. So far as the question of feeble attempt to suggest the possibility of the money being planted by Vijay Kumar or his associates in the grappling near the canteen is concerned, the same is established by FIR version itself, (Exs. P-25 and P-26), and the relevant portion is extracted below :-R. N. Singh (P. W. 16) who, at the relevant time was Inspector in the Vigilance Section at Rewa, in Para 3 of his statement, has stated that the accused on being delivered currency notes, kept the same in his left pocket of the shirt but this statement does not find place in Exs. P25 and P26. In page 4 of his statement, it has been stated that :the FIR version is different. ( 12 ) MORESHWAR (PW 1) on being put a question as to who put the currency notes in the pocket of the accused, to which the reply as given was that he reached after receiving the signal as the signal was given after the transaction of the money was over and as such PW 1 is not the witness to the transaction of money. Santosh Kumar and Vijay Kumar (PWs. 2 and 8) are related. Vijay Kumar Shrivastava is the son of the Nanad of his sister. Sadhulal, the Police Constable in his cross-examination (Para 4) has stated that the Deputy Collector, Ajatshatru took the money from the pocket of the accused and this money was taken out inside the canteen, at which time, there were two or three persons sitting in the canteen. Vijay Kumar Shrivastava is the son of the Nanad of his sister. Sadhulal, the Police Constable in his cross-examination (Para 4) has stated that the Deputy Collector, Ajatshatru took the money from the pocket of the accused and this money was taken out inside the canteen, at which time, there were two or three persons sitting in the canteen. The version is different than the case set up and it requires the examination of Ajatshatru, who could have given the correct version and also lent corroboration. PW 2 Santosh Kumar has stated in Para 8 of his cross-examination that he did not see anything in the canteen and has stated that he went to his house. His signatures were not obtained in the canteen. Nothing was done in the canteen before him. ( 13 ) PW 6 Gajraj Prasad who also accompanied the trap party, in his statement has stated that he cannot say as to who took the currency note from the pocket of the accused. He is also unable to say as to who gave the currency notes. PW 7 R. D. Shrivastava, who is the Private Secretary of the Secretary to the Government, Higher Education Department who gave the permission/sanction, has stated in his cross-examination that in the report sent to the office of the Secretary, Higher Education Department, it was not mentioned that Shri M. N. Vyas, and Ajatshatru, Deputy Collector had seen taking the money. He is the person who proved the Ex. P19. In the sanction, it has been stated that Shri M. N. Vyas, Statistical Officers and Shri Ajatshatru, Deputy Collector had seen Shri Ramkrishna Verma (Accused) taking money from Vijay Kumar. But the version in Ex. P26 is different. PW 8 Vijay Kumar, in para 7 has stated that the accused asked for the money and he gave the money to him. According to PW 10 R. N. Singh, (Paras 13 and 14), when the money was given to the accused, Vijay Kumar was accompanied by Santosh Kumar and all the three persons i. e. the accused, Vijay Kumar and Santosh Kumar came out from the College and he was standing near a wall near Petrol Pump and from that place the giving of money to the accused was visible. He has stated that the witnesses must have seen giving the money. He has stated that the witnesses must have seen giving the money. ( 14 ) UNDER the circumstances, it is a case where the accused has established by preponderance of probability regarding his false implication in the crime. In V. D. Jhingan v. State of Uttar Pradesh, AIR 1966 SC 1762 : (1996 Cri LJ 1357) it has been held that while considering the burden of proof lying upon the accused under Section 4 (1) of the Prevention of Corruption Act, 1947, 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 for the accused person to establish his case by the test of proof beyond a reasonable doubt, or in default to incur a verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden is shifted to the prosecution which still has to discharge its original onus that never shifts, i. e. that of establishing on the whole case the guilt of the accused beyond a reasonable doubt. ( 15 ) THE submission of the learned counsel for the appellant is founded on the statement in para 10 of the judgment appealed against that it was not the case of acceptance of bribe but was a case of thrust of currency notes in the pocket of the appellant, and in this connection, reliance has been placed on Banshi Lal Yadav v. State of Bihar, AIR 1981 SC 1235 : (1981 Cri LJ 741 ). This case is different from the present case as in that case, it was held by the Court that the accused in his examination under Section 313, Cr. P. C. stated that the currency notes were thrust in his pocket. If the accused, when examined under Section 313, Cr. P. C. stated that currency notes were thrust in his pocket, that statement by itself, without anything more, is not sufficient to satisfy the necessary ingredients of Section 4 (1) that accused accepted or obtained or has agreed to accept or attempted to obtain any gratification other than legal remuneration so as to be able to raise the presumption. Acceptance or obtaining or agreeing to accept or attempting to obtain is a voluntary act. Acceptance or obtaining or agreeing to accept or attempting to obtain is a voluntary act. In this case the main thrust is on voluntary acceptance of the money. Though the facts of the case relied upon were different but in the present case, the principle can be accepted that it has been stated in the FIR itself which was transcribed by the official of trap party, i. e. R. N. Singh, Inspector in Vigilance Department at Rewa that the accused stated that he did on accept money but the same was planted in his pocket or was put in his pocket by Vijay Kumar. ( 16 ) THE ultimate conclusion arrived at is that the story of demand of bribe by the appellant from the complainant is not proved and the payment of money by the complainant is not established beyond reasonable doubt. ( 17 ) HOWEVER, even assuming that the recovery is proved, mere recovery of certain money from the possession of the accused without the proof of demand made by him or on his behalf or on behalf of some person to whom an official favour was to be shown, is not sufficient to establish the guilt. ( 18 ) THE ingredients of the charge under Section 161, IPC are :- (1) that the accused was a public servant; (2) that he must be shown to have obtained from any person any gratification; and (3) The gratification should be other than legal remuneration as a motive or reward for doing or forbearing to do any official act for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to the person. ( 19 ) IN the present case, the second ingredient is not there i. e. the very existence of second ingredient is not established beyond reasonable doubt. According to the third ingredient, the gratification should be in exercise of his official function for showing favour. In the present case, it has been established by evidence on record that the accused was not the person who could have extended any favour for doing any official act as he was not even the concerned clerk, for receiving the application and the receiving of the application could not be said to bring any favour in discharge of official act. He was not the scholarship sanctioning authority. He was not the scholarship sanctioning authority. ( 20 ) THE accused, in reply to question, No. 36 of his examination under Section 313, Cr. P. C. has stated that on 27-4-1982, the complainant Vijay Kumar, along with his some associates, came into his office and extended a threat of dire consequences if his scholarship is not granted and also extended the threat of dire consequences of killing and this matter was immediately reported by him to the Principal of the College. Again on 28-4-1992, three persons came to his office at about 4 p. m. on which date, they again threatened him, telling him that he has made a complaint against them, he would not be allowed to go out of the college campus, and this incident was also narrated by him to Surajdeen Verma, a clerk in T. R. S. College. ( 21 ) IN view of the above, the conviction of the appellant under Section 5 (1) (d) r/w 5 (2) of Prevention of Corruption Act, 1947 and under Section 161. IPC cannot be allowed to stand. ( 22 ) THE appeal is accordingly allowed. The order of conviction and sentence as passed against the appellant is set aside and the appellant is acquitted. The appellant is on bail. He need not surrender to the custody. His bail bonds are discharged. Appeal allowed. .