JUDGMENT 1. 1. The present appeal is directed against the judgment of conviction passed by the Special Judge, Anti-Corruption Department Cases, Bikaner on 6.6.1980 in Criminal Case No. 2/79 convicting the appellant-accused Under Section 161 of Indian Penal Code for one year R.I. and a fine of Rs. 500/-, in default of payment of fine further imprisonment of six months. He also convicted the appellant Under Section 5(l)(d)(2) of the Prevention of Corruption Act, 1947 and sentenced him to R.I. of two years and a fine of Rs. 500/-, in default further six month R.I. Both the sentences were ordered to run concurrently. 2. The prosecution story stating in brief is that the appellant-accused was working as an employee of Urban Improvement Trust, Sriganganagar. The Urban Improvement Trust, Sriganganagar had noted a scheme, whereunder, person whose house has fallen due to natural calamities would be given plots in Jawahar Colony on a compensatory rate of Rs. 700/- per plot. An application was, therefore, filed under this scheme by one Subhash Chandra, PW 2. It is alleged that this application was to be processed by the accused appellant and he demanded a sum of Rs. 100/- to process the application favourably. Rs. 40/- was agreed to be a sum to be given to the accused Rajendra. On the complaint of Subash Chandra the trap was accordingly led on 11.8.1978 and the accused was trapped accepting the amount of Rs. 40/-. The notes were squeezed with Phenolphthalein powder and the test resulted in positive. The water turns red. The accused was, thereafter, prosecuted in due course of time. The prosecution examined six witnesses in support of its case and one witness was examined by the accused in his defence. 3. PW 1, Ram Laxman is an employee of the Collectorate, he deposed in great detail about the procedure of laying the trap. From the evidence of this witness and that of PW 5, Hanuman Dutt the prosecution has proved that the trap as contemplated by law was duly laid down. The fact that the accused accepted the amount in presence of witnesses also stands proved. PW 2, Subhash Chandra is complainant. A perusal of his deposition shows that no direct demand was made to him by the accused Rajendra and it was Ram Kishan who told him that the accused wants Rs. 40/- to do the work. The fact that the accused accepted the amount in presence of witnesses also stands proved. PW 2, Subhash Chandra is complainant. A perusal of his deposition shows that no direct demand was made to him by the accused Rajendra and it was Ram Kishan who told him that the accused wants Rs. 40/- to do the work. PW 3, G.R. Agarwal is an employee of U.I.T. and has deposed that the work of making report and forwarding the forms was of Patwari. He has deposed that: " Jh gjhjke Jr. En. dh enn gsrq gkftj vfHk;qDr jktsUnz dqekj dks fellowman dh rjg yxk j[kk FkkA tkWap djus dk vf/kdkj rks Jh gjhjke dks gh FkkA mudh gh fjiksVZ consider dh tkrh FkhA " He no where states that it was the duty of the accused appellant to make report or accept report. To the same extent is the deposition of PW 4, Hari Ram Junior Executive Engineer. He states that accused Rajendra was attached to him in his duty of examining the slum clearance forms. He states that: " gkftj vfHk;qDr esjs lkeus gh QkeZ dh tkWap djrs FksA " He also does not state that it was the duty of Rajendra Kumar to make report. PW 5 is Hanuman Dutt, Inspector of the Anti-Corruption Department. The evidence of this prosecution witness proves beyond reasonable doubt that the trap accordingly to law was led and the accused was found accepting the bribe. The learned Judge accepting the evidence has recorded the conviction as aforesaid. It is this order which is assailed before me by the learned counsel appearing for the accused basically and strongly on two grounds. (i) That there is no evidence, whatsoever, that any demand being made by the accused for a sum of Rs. 40/-. (ii) That there is no evidence to show that it was the duty of the accused to make a report and for performing his duty he demanded illegal gratification of Rs. 40/-. It was then also contended by the learned counsel that even if the acceptance of Rs. 40/- is also proved, the accused has given reasonable explanation of the acceptance and, therefore, the conviction is unsustainable in law. He cited several cases in support of this proposition. The first decision is reported in Rajasthan Criminal Cases 1980 Vol. 5 Page 108, State of Rajasthan v. Ved Prakash . 40/- is also proved, the accused has given reasonable explanation of the acceptance and, therefore, the conviction is unsustainable in law. He cited several cases in support of this proposition. The first decision is reported in Rajasthan Criminal Cases 1980 Vol. 5 Page 108, State of Rajasthan v. Ved Prakash . Dismissing the appeal against acquittal it was observed by the Division Bench of this Court that where the accused is charged of accepting illegal gratification and currency notes are recovered from him and cogent and acceptable explanation is given by the accused is at least proper. The second case is Shriman Narain v. State of Rajasthan, 1988 Rajasthan Criminal Cases page 248 . In this case it is held that factum of demand of bribe must be proved by an independent evidence should be duly corroborated failure is liable to result in acquittal. Relying on this decision it is contended by the learned counsel that there is no evidence of demand in this case. Reliance was also placed on 1989 Rajasthan Criminal Case Page 74 of this Court for the proposition that probable explanation of defence of the fact of accepting money forbearing the presumption that money was accepted as illegal gratification.To be of same effect are the decisions at page Nos. 98, 158 and 172 of the same volume. Similar decision was then reported in 1991 Rajasthan Criminal Cases Page 496. Relying on these decisions, it was contended by Shri Garg that the conviction in the present case is unsustainable in law. 4. Learned Public Prosecutor supports the judgment of conviction by pointing out that the evidence of defence witness was not acceptable being improbable and there was enough evidence on record in the testimony of PWs 2, 5 & 6 to prove the demand. He, therefore, claim that the order of conviction is liable to be maintained. 5. Section 161 of the Indian Penal Code requires that whoever being a public servant accepts other than legal remuneration as a motive or reward for doing or forbearing to do so as official act is said to have accepted the illegal gratification. It is, therefore, necessary that prosecution proves (i) acceptance of gratification other than legal remuneration, and, (ii) acceptance must be a motive or reward for doing or forbearing to do so as official act. It is, therefore, necessary that prosecution proves (i) acceptance of gratification other than legal remuneration, and, (ii) acceptance must be a motive or reward for doing or forbearing to do so as official act. The evidence on record must, therefore, prove these two ingredients to sustain the charge or the conviction. In the present case the evidence fails to prove this. There is nothing on record that it was the official duty of the accused to make report on the application for grant of plots under the scheme. On the contrary it has been stated by PW 3 and 4 that appellant was engaged as a helper to PW 4. It was not the duty of the appellant to make a report and consequently the acceptance is held to be proved, was not forbearing to do or doing an official act. In my opinion, therefore, the conviction is unsustainable in law. 6. There is also no evidence of demand on record. Subhash Chandra no where states that the accused demanded from him the said amount. He also states that he was told by Ram Kishan that the accused wants Rs. 40/-. The prosecution has not examined Ram Kishan, on the contrary he has been examined by the defence and he has stated as a defence witness that the amount of Rs. 40/- was paid to the accused by Subhash Chandra on his behalf. This evidence according to learned counsel is probable explanation of the fact of acceptance of Rs. 40/- during the trap. This evidence was rejected by the learned Sessions Judge by assigning that story appears to be improbable and certain inconsistencies were noted by the learned Sessions Judge from the Statement of this witness given to the police. Even if the inconsistencies are accepted the story does not become improbable. In any case this witness was not cross-examined on the question of demand of Rs. 40/- by the accused Rajendra for doing the work of the complainant Subhash Chandra. Therefore, there is no evidence that this amount of Rs. 40/- was demanded by the accused Rajendra at any point of time. Taking into consideration the various citations and evidence on record it would be unreasonable to sustain the order of conviction as there is no evidence of demand and there is probable explanation of the acceptance of money. I, therefore, accept this appeal which is allowed. 40/- was demanded by the accused Rajendra at any point of time. Taking into consideration the various citations and evidence on record it would be unreasonable to sustain the order of conviction as there is no evidence of demand and there is probable explanation of the acceptance of money. I, therefore, accept this appeal which is allowed. The accused is already on bail, the bail bonds be cancelled.Appeal Allowed. *******