JUDGMENT: Pushpangathar, the appellant herein, on being aggrieved by the conviction for the offences under Secs.7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act for having received a bribe of Rs.400 from one Damodaran for expeditious process of the application for issue of legal heirship certificate, has filed this appeal. 2. The brief facts are as follows: “(a) The appellant was working as record clerk in the Mylapore-Triplicane Taluk Office, Chennai. P.W.6 Damodaran wanted a legal heirship certificate for the purpose of claiming family pension in connection with the death of his father. Therefore, he approached the Tahsildar’s Office at Chamiers Road, Chennai. (b) On 10.12.1991, when P.W.6 went to the Tahsildar’s office, he was directed to submit an application to the appellant, who was working as record clerk. The appellant received the application and demanded P.W.6 to pay him a sum of Rs.450 as bribe for processing the application and enabling him to get the legal heirship certificate quickly. The appellant also asked P.W.6 to get an affidavit from the notary public. Accordingly, P.W.6 obtained the affidavit from the notary public on 11.12.1991 and produced the same to the appellant. After receiving the affidavit, the appellant insisted P.W.6 that he should pay Rs.450 to make the papers ready. Ultimately, the appellant reduced the amount and insisted P.W.6 to bring the amount of at least Rs.400 on 12.12.1991. (c) Since P.W.6 did not want to pay any bribe for getting the certificate, he went to the vigilance office and gave a complaint to P.W.7 Inspector of Police on 12.12.1991 and the same was registered. Ex.P-15 is the F.I.R. (d) Thereafter, at 2.45 p.m., on the request of the Inspector of Police, P.W.2 Chitralputhran and P.W.3 Velayutham, the Government servants working in two different departments, were asked to come to the vigilance office to watch the trap. The phenolphthalein powder was smeared on the hundred rupee currency notes numbering four. Ex.P-15 complaint was read over to P.Ws.2 and 3 and then, Ex.P-3 entrustment mahazar was prepared. (e) Thereafter, the officials along with P.W.6 went to the office of the appellant. P.W.2 was instructed to accompany P.W.6. They reached the Tahsildar’s office at 4.00 p.m. At that time, the appellant was standing outside the office. As soon as the appellant saw P.W.6, he asked P.W.6 as to whether he had brought the money. (e) Thereafter, the officials along with P.W.6 went to the office of the appellant. P.W.2 was instructed to accompany P.W.6. They reached the Tahsildar’s office at 4.00 p.m. At that time, the appellant was standing outside the office. As soon as the appellant saw P.W.6, he asked P.W.6 as to whether he had brought the money. Immediately, P.W.6 took out the money and handed over the same to the appellant. Thereafter, P.W.6 gave the prearranged signal. (f) On getting the prearranged signal, P.Ws.7 and 3 along with P.W.2 and other officials went inside the office and introduced themselves to the appellant. Thereafter, the phenolphthalein test was conducted on both the hands of the appellant and the same proved positive. Thereafter, the appellant took out the amount from his pant pocket and handed over the same to P.W.7. The pant pocket also was subjected to the said test and the same was proved positive. Thereafter, the appellant produced the application and other documents given by P.W.6. (g) At the time when the tests were conducted, P.W.4 Tahsildar was requested to be present and Ex.P-5 mahazar was prepared in his presence. At the end, the appellant gave explanation that he received the amount from P.W.6 as flag day collection. But, P.W.4 Tahsildar stated that the appellant was not competent to collect the flag day fund and the flag day collection was over on 4.12.1991 itself. (h) P.W.8, another Inspector of Police took up further investigation and obtained Ex.P-1 sanction from P.W.1, the competent authority, to prosecute the appellant. Thereafter, the charge-sheet was filed against the appellant.” 3. After conclusion of trial, when the appellant was questioned, he stated that he received the amount of Rs.400 towards flag day collection. After considering the materials placed before the Court by both the parties, the trial Court convicted the appellant for the offences under Secs.7 and 13(2) read with 13(1)(d) of the Prevention of Corruption Act and sentenced him to undergo R.I. for one year and to pay a fine of Rs.500. Hence, this appeal. 4. Mr.Venkatsubramaniam, the learned counsel appearing for the appellant, would make the following submissions by attacking the judgment of conviction impugned: “There are vital discrepancies between the evidence of P.Ws.2 and 3, the accompanying witnesses, and the evidence of P.W.6, the decoy witness. Hence, this appeal. 4. Mr.Venkatsubramaniam, the learned counsel appearing for the appellant, would make the following submissions by attacking the judgment of conviction impugned: “There are vital discrepancies between the evidence of P.Ws.2 and 3, the accompanying witnesses, and the evidence of P.W.6, the decoy witness. When there is no acceptable evidence to show that the demand was made by the appellant for showing favour, the explanations which was given by the appellant immediately even during the course of trap shall be accepted as probable. In this case, the defence documents marked through P.W.4 Tahsildar would make it clear that even after 4.12.1991, the flag day collection was made by the taluk office. Therefore, the appellant is liable to be acquitted, in the light of the admission made by P.W.4 Tahsildar regarding the receipt of the amount as flag day collection.” 5. Mr.O.Srinath, the learned Government Advocate, in reply to the above submissions, would state that the prosecution has establishing that the amount was demanded only as bribe for processing the application expeditiously and in pursuance of the said demand, the appellant received the amount from P.W.6 as bribe and the explanation given by the appellant has been proved to be false by the evidence of P.W.4 Tahsildar, who was present at the time of trap and therefore, the conviction is liable to be confirmed. 6. The learned counsel for both sides would cite several authorities in order to substantiate their respective pleas. 7. According to the prosecution, the appellant, demanded Rs.450 on 10.12.1991 and ultimately, he demanded Rs.400 on 11.12.1991 from P.W.6 Damodaran as bribe for expeditious process of the application for issue of legal heirship certificate and the same was received on 12.12.1991. 8. There is no dispute in the fact that during the relevant time, the appellant was working as record clerk in the taluk office and he was allotted with the work of receiving the applications and forwarding the same to the Tahsildar for issuance of legal heirship certificate. 9. In this case, P.W.4 Tahsildar would clearly state that the appellant had to get the applications from the applicants and after registering the same in the Register, he had to process the same by forwarding the applications along with other documents to the Tahsildar. 10. 9. In this case, P.W.4 Tahsildar would clearly state that the appellant had to get the applications from the applicants and after registering the same in the Register, he had to process the same by forwarding the applications along with other documents to the Tahsildar. 10. It is the evidence of P.W.6 that he went to the Taluk Office and met the appellant on 10.12.199, and on that date, he was asked to get the affidavit attested by the notary public. On that date, the bribe amount of Rs.450 was demanded as gratification for expeditious process of the application and he was asked to come on 12.12.1991 with the money of at least Rs.400. Since P.W.6 did not incline to give any bribe, he went to P.W.7 Inspector of Police and gave Ex.P-15 complaint. This aspect of evidence regarding demand of bribe had been clearly spelt out in the evidence of P.W.6 besides having stated so in Ex.P-2 complaint. 11. Regarding receipt of money as bribe, the prosecution has got the evidence of both P.W.6, the complainant and P.W.2, the accompanying witness. P.W.2 is an independent witness working as Superintendent in Tamil Nadu Fisheries Department. According to P.W.2, when he along with P.W.6 went to the office of the appellant, the appellant asked P.W.6 as to whether he had brought the money. Immediately P.W.6 handed over the currency notes and the appellant received the same and put it in his left side pant pocket. When the appellant enquired about P.W.2 with P.W.6, P.W.6 told the appellant that P.W.2 was his neighbour. Then, P.W.2 was in conversation with the appellant for a few minutes. In the meantime, P.W.6 went outside and gave the prearranged signal. Then P.Ws.3 and 7 along with the officials came and introduced themselves to the appellant. Immediately, an intimation was sent to P.W.4 Tahsildar. In the presence of P.W.4 Tahsildar, the phenolphthalein tests were conducted on both the hands of the appellant as well as his pant pocket and both the tests proved positive. 12. At the end, when the appellant was questioned, he stated that he received the amount towards flag day collection. However, P.W.4 Tahsildar said that the flag day collection was over on 4.12.1991 itself and subsequently, the office collected from the public only through hundial. With regard to this, Ex.P-5 mahazar was prepared. 12. At the end, when the appellant was questioned, he stated that he received the amount towards flag day collection. However, P.W.4 Tahsildar said that the flag day collection was over on 4.12.1991 itself and subsequently, the office collected from the public only through hundial. With regard to this, Ex.P-5 mahazar was prepared. These things had been spoken to by P.Ws.2, 3, 4 and 6. 13. In regard to receipt of the bribe amount, P.Ws.2 and 6 would speak about the same. P.W.2, who is also a public servant, would give all the details in corroboration with the evidence adduced by P.W.6. Thus, on the basis of these materials, it can be safely held that the prosecution has proved its case that the appellant received the money as bribe in pursuance of his demand for expeditious process of the application for issue of legal heirship certificate. 14. Once the prosecution has established that the money was received by the accused as gratification, under Sec.20 of the Prevention of Corruption Act, it is for the accused to give explanation as to why he received the amount. In other words, the presumption would raise the moment when the prosecution has established that the amount was received by the accused as gratification. 15. It is not disputed now that the amount was received by the appellant. There is no challenge in regard to the evidence adduced by the prosecution that the amount was recovered from the appellant and the tests conducted on the figures and the pant pocket of the appellant proved positive. 16. Now, the explanation given by the appellant, is that the receipt of the amount was to- wards flag day collection. In this case, the explanation was immediate. Even during the preparation of mahazar, this explanation was given by the appellant, that too, in the presence of P.W.4 Tahsildar. But, it does not mean that the explanation has to be accepted as true, merely because it was made immediately even during the trap. 17. At the same time, it should not be forgotten that the explanation for rebutting the presumption arising under Sec.20 of the Act need not be established by the appellant/accused beyond reasonable doubt. It is enough that the said explanation is probable. In other words, if the case of the defence has been established through preponderance of probability, then the burden of the accused would be discharged. It is enough that the said explanation is probable. In other words, if the case of the defence has been established through preponderance of probability, then the burden of the accused would be discharged. 18. In the light of the above principle, we have to see whether the appellant/accused has established his defence through preponderance of probability. In other words, the decree and character of the burden of proof which Sec.20 of the Act casts on the accused person to rebut the presumption cannot be equated with the decree and character of proof which rests on the prosecution. This principle has been laid down in Trilok Chand v. State of Delhi, A.I.R. 1977 S.C. 666. 19. In the light of the above principle, we have to look at the explanation given by the appellant/accused. 20. As noted above, when Ex.P-5 mahazar was prepared during the trap, the appellant/accused said that the amount was received from P.W.6 towards flag day collection. This has not been suppressed by P.W.7. P.Ws.2 and 3, who were present at the time of trap, also admitted the same. This explanation had been recorded in Ex.P-5 mahazar. 21. But, however, in order to decide the probability of the explanation, we have to consider the evidence of P.W.4 under whom the appellant was working. According to P.W.4 Tahsildar, the flag day collection was over on 4.12.1991 itself. This statement was also recorded by P.W.7, in Ex.P-5 mahazar. P.W.4, while deposing before the Court, would also state the same. But, during his cross-examination, Exs.D-1 to D-11 had been marked. In those documents relating to the legal heirship certificates of several other persons, the Tahsildar had made pencil endorsement directing for Flag day collection. Exs.D-1 to D-11 would relate to the dates between 9.12.1991 and 4.1.1992. 22. On the basis of these documents, it is contended by the learned counsel for the appellant that the flag day collection was continued even after 4.12.1991 and as such, the settlement of the accused giving explanation that the collection was made from P.W.6 on 12.12.1991 for the purpose of flag day fund has to be accepted. 23. Though it has been established by the defence that the flag day collection was continued even after 4.12.1991, there is nothing to indicate that the appellant was directed to collect the flag day amount from each applicant, who applied for legal heirship certificate. 23. Though it has been established by the defence that the flag day collection was continued even after 4.12.1991, there is nothing to indicate that the appellant was directed to collect the flag day amount from each applicant, who applied for legal heirship certificate. Even in Ex.P-5 mahazar, it is mentioned that the Tahsildar stated that flag day collection was even continued subsequent to 4.12.1991 also through hundial. 24. Furthermore, it is the specific evidence of P. W.4 that the flag day collection could be done only by the Tahsildar and not by the record clerk. Moreover, the application given by P.W.6 on 10.12.1991 was not at all registered in Ex.P-7 register. But, it had been established that both the application and the affidavit obtained from the Notary Public were handed over to the appellant on 10.12.1991 and 11.12.1991 respectively. These documents were recovered from the appellant on the date of the trap. 25. Under those circumstances, it is quite clear that the amount was received only for processing the application for issue of legal heirship certificate and the appellant decided to forward the application only after receipt of the bribe amount from P.W.6. That is the reason why the entry was not made in Ex.P-7 register, even though the application and the affidavit were received on 10.12.1991 and 11.12.1991 respectively. Consequently, it has to be concluded that the explanation given by the appellant cannot be considered to be a probable one. 26. This Court in Palania Pillai v. State, 1991 Crl.L.J. 1563, and a Division Bench of the Gujarat High Court in Sumanlal v. State of Gujarat, 1977 Crl.L.J. 626 would hold that the amount received by a public servant from the complainant, for doing an official act, even if received as contribution to flag day fund, the conviction under Sec.161, I.P.C. read with Sec.5(2) of the Prevention of Corruption Act is justified. The Division Bench would further state that even though the accused received the amount not for his personal purpose, but for a charitable purpose, if a public servant insisted upon the payment as consideration for discharge of his duties, he would be liable for the offences under the Prevention of Corruption Act. 27. But, in the instant case, as stated earlier, this Court holds that the amount was received only as bribe and not as flag day collection. 28. 27. But, in the instant case, as stated earlier, this Court holds that the amount was received only as bribe and not as flag day collection. 28. In this contest, it would be relevant to quote some of the observations made by this Court in the decision reported in Periyaswamy v. Inspector, Vigilance and Anti-Corruption, Tiruchirapalli, 1999 Crl.L.J. 2944, which are as follows: "Before parting with this case, a word with the State Government for consideration. In most of the corruption cases, this Court invariably noticed, especially when the revenue officials are involved, that the defence taken by the accused persons is the receipt of money for flag day collection or some other collection, as directed by the State Government. ... ... But, difficulty arises in these cases in this way. By the circular being issued by the State Government directing the public servants to make collection for flag day etc., those public servants are constrained to approach the public. Incidentally, those public servants are making such a request to public, who come to them for showing some favour in discharge of their official duties. Therefore, indirectly the public also are made to make a payment to the public servants towards the flag day collection etc., in order to see that they get favour from the public servants in exercise of their official duties. So, ultimately, both public and public servants would suffer in a way through the circulars." 29. In the light of the above observations, in this case, it can be concluded that the appellant, taking advantage of the flag day collection made in the taluk office, demanded and received the bribe amount of Rs.400 from P.W.6 for expeditious process of the application for issue of legal heirship certificate. 30. Therefore, the conviction and sentence imposed upon the appellant are correct and as such, the finding given by the trial Court is unassailable. Hence, the appeal is liable to be dismissed as devoid of merits. 31. In the result, the appeal is dismissed. The conviction and sentence imposed upon the appellant by the trial Court are confirmed. The bail bond shall stand cancelled. The trial Court is directed to take steps to secure the custody of the appellant to undergo the remaining period of sentence.