ELIPE DHARMA RAO, J. ( 1 ) DR. A. V. Prasad, the then Superintendent of Welfare Tuberculosis and Chest Diseases, hospital, Dargamitta, Nellore, who is a public servant within the meaning of Sec. 2 (c) of the prevention of Corruption Act, 1988 (for brevity the Act), preferred this Criminal appeal aggrieved of his conviction for the offence under Sections 7 and 13 (1) (d) read with Sec. 13 (2) of the Act and sentence to undergo rigorous imprisonment for three years and to pay a fine of Rs. 3,000/- in default to suffer simple imprisonment for one year, respectively under each count, awarded by the Special Judge for Special Police establishment and Anti Corruption Bureau cases, Nellore in C. C. No. 13 of 1995 on 20-9-1996. ( 2 ) THE case of the prosecution, in brief, is that 15 days prior to 5-9-1994 Tamalapakula doss was admitted in TB Hospital, Nellore in RKC Ward and latter he was shifted to TB ward and T. Bojamma, wife of Doss informed the complainant Bhaskara Rao that the accused on examination informed that he will discharge Mr. Doss; that on 2-9-1994 the complainant approached the accused - appellant, who informed him to meet at his house in the evening. When the complainant met the accused, he demanded Rs. 500/- per month as illegal gratification to show official favour by rendering good treatment without discharging him. When the complainant pleaded his inability, the accused reduced the bribe amount to Rs. 300/- directing him to pay before 6-9-1994 at his house. Since the complainant did not want to pay the bribe, he lodged a complaint with P. W. 7, who registered a case in Cr. No. 9/rc-NLR/94 at 4. 30 p. m. on 6-9-94. It is stated that P. W. 1 went to the office of P. W. 1 and produced bribe amount of Rs. 300/- in the presence of mediators. Then P. W. 1 went to the house of the accused alongwith, mediators and staff of the ACB on 6-9-1994 at 6. No. 9/rc-NLR/94 at 4. 30 p. m. on 6-9-94. It is stated that P. W. 1 went to the office of P. W. 1 and produced bribe amount of Rs. 300/- in the presence of mediators. Then P. W. 1 went to the house of the accused alongwith, mediators and staff of the ACB on 6-9-1994 at 6. 45 p. m. , stopped thejeep in the vicinity of house-cum clinic of the accused, that when P. W. 1 entered into the house of the accused, he demanded the bribe amount and P. W. 1 paid the same, who received it with his right hand and counted with his both the hands; the complainant came out and gave signal and the trap party entered into the house of the accused, conducted test on both the hands of the accused, which proved positive; that on requisition the accused produced the bribe amount from a zip bag, the number of the currency notes tallied, the money was then seized and after completion of investigation, the accused - appellant was charged. ( 3 ) TO bring home guilt of the accused, the prosecution has examined P. Ws. 1 to 7 and marked Exs. P-1 to P-23 and M. Os. 1 to 8. On behalf of the appellant - accused, D. W. 1 was examined and Exs. D-1 to D-8 and X-l to D-8 were marked. ( 4 ) THE learned Special Judge, on appraisal of both oral and documentary evidence, found the appellant - accused guilty of the offence, convicted and sentenced as stated supra, ( 5 ) AGGRIEVED of the said conviction and sentence, the accused preferred this Criminal appeal. ( 6 ) THE learned Senior Counsel Sri T. Bali reddy representing Mr. R. Bala Krishna Rao, appearing on behalf of the accused - appellant contended that there is no demand on 2-9-1994, but the amount was paid only on 6-9-1994. He further contended that there are discrepancies and contradictions in the evidence of prosecution witnesses, more particularly P. Ws. 1 and 4 with regard to their relationship. He also contended that when appellant is not the competent officer either to admit or discharge a patient from the hospital, but the decision will be takenby a Committee, the entire case of the prosecution which revolves on the alleged utterance of the accused that he will discharge mr. Doss, cannot be believed. He also contended that when appellant is not the competent officer either to admit or discharge a patient from the hospital, but the decision will be takenby a Committee, the entire case of the prosecution which revolves on the alleged utterance of the accused that he will discharge mr. Doss, cannot be believed. It is also contended by him that once the evidence of prosecution witnesses is proved to be false or patently incorrect, then the successful trap, recovery of the tainted amount from the possession of accused-appellant, becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. ( 7 ) IN reply to the above contentions, the learned Standing Counsel for A. C. B. Cases, mr. G. Pedda Babu, submitted that when the evidence of P. Ws. 1, 3,4 and 7 is cogent and the prosecution could successfully conduct the trap, a presumption under Section 20 (1) of the Act would arise that such gratification was accepted as a reward for doing public duty. Contending so, he submitted that the facts and circumstances of the case do not warrant interference by this court. ( 8 ) FOR appraisal of these contentions, as a matter of course, the evidence has to be looked into. ( 9 ) P. W. 1 , an electrician by avocation, is the complainant. Tamalapakula Doss, is the younger brother of his mother andhe married his brother s daughter. He took Mr. Doss, who was suffering from TB for the last two years, to TB Hospital, 15 days prior to 2-9-1994; that the accused saw his uncle and admitted him in KRC Ward and one week later his uncle was shifted to general ward. It is his further evidence that on 1-9-1994, bujjamma wife of Mr. Doss, and his aunt, who was attending on Mr. Doss, informed him that the accused told her that he would discharge Mr. Doss. On the next day he met the accused in his office room, who asked "him to meet him at his house in the evening and when he met him, the accused demanded rs. 500/-, which was subsequently reduced to Rs. 300/-, for showing official favour by giving proper treatment without discharging him. Since they were not inclined to pay the bribe amount, on 5-9-1994 at 4. 500/-, which was subsequently reduced to Rs. 300/-, for showing official favour by giving proper treatment without discharging him. Since they were not inclined to pay the bribe amount, on 5-9-1994 at 4. 00 p. m. he went to ACB Office and lodged, Ex. P-1, complaint. P. W. 7 after going through the contents of Ex. P-1, asked the complainant to come at4. 30p. m. on 6-9-1994, accordingly he went there. Then after completing the procedural formalities, they have arranged a trap and secured the presence of mediators, at 6. 45 p. m. all of them started in the jeep which was stopped near Nehru Statue near the Petrol Bank, that he went to the house of the accused and on seeing him the accused asked as to whether he brought the bribe amount of Rs. 300/- and on demand he paid the said sum. The accused received the sum with his both hands and put the same in rexine bag. Then he gave signal as instructed by P. W. 7, who alongwith his party entered into the house of the accused. P. W. 7 then enquired with him as to whether he paid the said money to the accused on behalf of kulicherlapadu Venkateswarlu as the doctor informed him that he paid this amount to him on his account, but he informed P. W. 7 that he paid the bribe amount to the accused for better treatment of Mr. Doss - his uncle without discharging him from the hospital. Ex. P-2 is his statement recorded under section 164 Cr. P. C. in the court. ( 10 ) IN the cross-examination it was elicited by the defence from P. W. 1, that Bojjamma, his aunt, told him that the accused informed her that he would discharge Mr. Doss, which is inconsistent with the version in-chief who stated that his aunt informed him that the accused told her that he would discharge mr. Doss. Even P. W. 7 also could not ascertain through whom Bujjamma sent word to p. W. 1 in regard to the conduct of the accused for discharging Mr. Doss. He further stated that he was not asked by the ACB authorities through whom Bujjamma sent message to him nor Mr. Doss informed the name of the messenger to the ACB people either in 161 cr. P. C. statement, or in 164 Cr. Doss. He further stated that he was not asked by the ACB authorities through whom Bujjamma sent message to him nor Mr. Doss informed the name of the messenger to the ACB people either in 161 cr. P. C. statement, or in 164 Cr. P. C. statement or atleast in Ex. P-1. He stated that Bujjamma sent the message to him through her daughter vasantha, who is not examined. He further stated that Kattamuri Rathnamma is his mother and Rathnaiah is his father. Insofar as the relation of P. Ws. 1 and 4 Dasari venkateswarlu, is concerned, a suggestion was made that his mother and one kanthamma the mother of P. W. 4 are natural sisters which was denied by him. But P. W. 4 admitted that Kanthamma is his mother. That apart, P. W. 4 stated to P. W. 7 as in ex. D-3 that they do not belong to one village, but they are relatives. He further stated to p. W. 7 that Bhaskara Rao i. e. , P. W. 1, is his distant relative and they are brothers by courtesy. He denied the relationship between himself and P. W. 4, who are sons of natural sisters. P. W. 1 further denied the relationship between Kattamuri Santaiah and his father ratnaiah, as cousin brothers. In cross- examination, P. W. 1 stated that he does not remember whether he stated before the mediators that he knew D. Venkateswarlu p. W. 4 of Kuricherlapadu and he took him to the accused, as he was his relative. ( 11 ) HERE the evidence of P. W. 6 Office manager of the TB Hospital, Nellore is relevant. It shows that he wrote the note file relating to the disciplinary action taken against, Kattamuri Shantaiah, to the dictation of the accused - appellant and it is Ex. D-5. Ex. D-6 is the file relating to the disciplinary action taken against Suseela, who is wife of superintendent of Police. Evidently, shantaiah and Suseela were facing disciplinary proceedings at the instance of the accused. In these circumstances, the suggestion that the entire trap was arranged at the instance of both Shantaiah and Suseela, cannotbe given a total go-bye, in appreciating the evidence. ( 12 ) THE evidenceof P. W. 3, Civil Assistant surgeon, T. B. Hospital, makes it clear that mr. Doss was admitted in Emergency Ward by one Dr. In these circumstances, the suggestion that the entire trap was arranged at the instance of both Shantaiah and Suseela, cannotbe given a total go-bye, in appreciating the evidence. ( 12 ) THE evidenceof P. W. 3, Civil Assistant surgeon, T. B. Hospital, makes it clear that mr. Doss was admitted in Emergency Ward by one Dr. Penchalareddy inasmuch as his condition was serious and they will treat the patient for minimum for two months and the condition of the patient will be reviewed by the Superintendent, who is the competent authority to discharge the patient. It is his further evidence that based on the decision of the committee headed by the superintendent of the Hospital, on 19-8-1994 mr. Doss was admitted in General Ward and on 25-8-1994 the accused - appellant reviewed the condition of the patient and ordered for continuation of treatment. P. W. 3 asserts, in the cross-examination, that the Committee will decide for the continuation or otherwise of the patient in the hospital and if the patient himself wants discharge, they will discharge him, endorsing the same to that effect. Ex. P-7, the case sheet shows that Registration of the patient was done as per the decision of the Committee on 19-8-1994 for transferring mr. Doss to General Ward. It is further elicited that till 2-9-1994 the case sheet shows that the accused was suggesting investigations; viz. , blood test, etc. , and the reports were not received. He further stated that Mr. Doss was one of the 29 patients for whom the committee recommended for registration. ( 13 ) THE sum and substance of the evidence of this witness is that it is not the accused alone who, at his whims and fancies, can either admit or discharge the patient, but it is the Committee that reviews the condition of the patient either for his continuation or for discharge. This witness never stated that the accused could take unilateral decision and can discharge any patient. ( 14 ) P. W. 4 is said to be present when p. W. 1 visited the house of the accused - appellant. He denied that he informed the complainant P. W. 1 to pay any amount to the accused on his behalf under his instructions. He also denied the relationship between himself and P. W. 1. He further denied thathe knew one Kattamuri Shantaiah, radiographer of TB Hospital. He denied that he informed the complainant P. W. 1 to pay any amount to the accused on his behalf under his instructions. He also denied the relationship between himself and P. W. 1. He further denied thathe knew one Kattamuri Shantaiah, radiographer of TB Hospital. It is further elicited that he knew P. W. 1 for one year prior to 2-9-1994 since both of them used to take toddy together to Cherukumudi. He further denied that the complainant number of times took him to the accused and that on 2-9-1994 he took him to the accused, which is inconsistent with the admission of P. W. 7 that P. W. 1 brought P. W. 4 to the accused four or five times. He has denied that bojamma the wife of Mr. Doss is related to him. ( 15 ) AS discussed in the foregoing paragraphs, this witness cannot be said to be a truthful witness he has denied the relationship of P. W. 1 with him, as in Ex,d-3 and D-4. That apart, P. W. 7, Investigating officer admitted that the mother of P. W. 1 and the mother of P. W. 4 are sisters by blood i. e. , natural sisters. Had he been a truthful witness, there was no necessity for him to suppress the relationship or deny the same. ( 16 ) THE evidence of P. W. 7, who conducted the trap, shows that he did not question p. W. 1 with regard to the time of admission of Mr. Doss on 11-8-1994 by dr. Penchalareddy. He admitted that he did not examine as to whether P. W. 1 admitted mr. Doss in the Hospital. P. W. 7 even failed to verify with the other patients in the ward or staff members as to whether the accused told Bujjamma that he would discharge mr. Doss. He admitted that he isnot aware of any disciplinary proceedings that were initiated against one Mr. Shantaiah, radiographer of the TB Hospital, by the accused. He further stated that on his enquiry, the accused admitted that he received rs. 300/- from P. W. 1 towards the consultation and drugs given for a patient snd produced Ex. P-15 that the money was paid on behalf of P. W. 4 by P. W. 1. Shantaiah, radiographer of the TB Hospital, by the accused. He further stated that on his enquiry, the accused admitted that he received rs. 300/- from P. W. 1 towards the consultation and drugs given for a patient snd produced Ex. P-15 that the money was paid on behalf of P. W. 4 by P. W. 1. ( 17 ) HAD P. W. 7 caused preliminary enquiries in correct perspective and had he knew the disciplinary proceedings initiated by the accused-appellant against one shantaiah, Radiographer and Smt. Suseela, whose husband is Superintendent of Police, probably, the line of investigation would have been different. ( 18 ) IN view of this inconsistent evidence of prosecution witnesses, the evidence of d. W. 1 Grandhi Bharathi, a patient of the accused-appellant deserves a close scrutiny. D. W. 1 stated that she consulted the accused on 27-8-1994 and after taking diagnosis and x-Ray reports, she went to the accused on 28-8-94 who prescribed medicines and again on 6-9-1994 she alongwith her brother went to the accused at 7. 00 p. m. and while the accused was examining her, a black person came and informed the accused that his relation Venkateswara Rao sent him to pay the fees and medicines cha ges and thus paid Rs. 300/- and left the place hurriedly. Then the ACB sleuths entered the room and on enquiry, the accused-appellant gave spontaneous reply that relations of venkateswara Rao came and paid the fee and medicines charges. She categorically stated that the appellant did not demand the said person to pay any money to him. She produced Exs. X-1 to D-7 X-Ray and connected reports and prescriptions. There is nothing in the cross-examination of this witness that would render her testimony unworthy of acceptance. ( 19 ) THE character of P. W. 1 and P. W. 4 does not seem to be natural. P. W. 1 in ex. P-1 complaint, which is first in point of time, recites that Mr. Doss, who is his maternal uncle and father of his wife, was suffering with TB for the last two years, where his evidence shows that Mr. Doss is the younger brother of his mother and he married his brother s daughter. P. W. 1 in ex. P-1 complaint, which is first in point of time, recites that Mr. Doss, who is his maternal uncle and father of his wife, was suffering with TB for the last two years, where his evidence shows that Mr. Doss is the younger brother of his mother and he married his brother s daughter. Ex,p-5, second mediators report shows that on examination of D. W. 1, she stated thatherself and her brother did not witness any transaction that tookplace between the doctor -accused and the person entered (P. W. 1) into the room as the front grill of the consulting varandah is covered by a curtain. This portion of Ex. P-5 is not confronted to d. W. 1 when she was examined in the court, reasons best known to the prosecution and unknown to the court. Merely a suggestion was put to her that when the black person entered into the room of the accused,she was not there, which was categorically denied by her. ( 20 ) IT is recited in Ex. D-1, letter addressed to Director General, ACB, Nellore, by P. W. 1, that since he was not intending to pay bribe to the accused, he contacted P. W. 7 on 6-9-1994 in the evening and based on his report, they gave him Rs. 300/- and asked hint to give that amount to the accused, as bribe, that since he was caught redhanded and a case has been registered and investigation is in progress and since threats are given to him, he may be provided security. This version in Ex. D-1 is contradictory to the evidence of P. W. 1 in-chief, who stated that since he was not intending to pay the bribe, on 5-9-1994 at 4. 00 p. m. he went to the ACB office, Nellore and gave a written complaint, ex. P-1 to P. W. 7, who asked him to come on 6-9-1994 at 4. 30 p. m. and on 6-9-1994 he asked him to wait outside. There is nothing in his evidence about handing over of Rs. 300/- to P. W. 1 either on 5-9-1994 or 6-9-1994. P-1 to P. W. 7, who asked him to come on 6-9-1994 at 4. 30 p. m. and on 6-9-1994 he asked him to wait outside. There is nothing in his evidence about handing over of Rs. 300/- to P. W. 1 either on 5-9-1994 or 6-9-1994. ( 21 ) HAVING regard to this inconsistent evidence of the prosecution witnesses, I am of the considered view that the principle laid down by the Apex Court in Suraj Mai v. The state, Delhi Administration1 equally applies to the facts and circumstances of this case. Therein, the Apex Court held that where witnesses make two inconsistent statements in their evidence either at one stage or at two stages, the testimony of such witnesses becomes unreliable and unworthy of credence and in the absence of special circumstances no conviction can be based on the evidence of such witnesses. It is further held that in a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. ( 22 ) IN this case also except the recovery of tainted amount which is of course supported by the evidence of P. W. 2 and P. W. 7, there is no consistent and clinching evidence to show that the accused has demanded the amount, as bribe to show official favour. The allegation of P. W. 1 that the accused demanded the bribe to show official favour in discharge of his lawful duties, cannot be believed more particularly in view of the fact that it is not the accused alone who has to decide with regard to the discharge or otherwise of a patient. P. W. 1 is not specific with regard to the demand of amount per month or one time settlement for not discharging Mr. Doss. In view of these contradictions and inconsistencies in the evidence of prosecution witnesses, the spontaneous explanation of the accused-appellant that the said sum of rs. P. W. 1 is not specific with regard to the demand of amount per month or one time settlement for not discharging Mr. Doss. In view of these contradictions and inconsistencies in the evidence of prosecution witnesses, the spontaneous explanation of the accused-appellant that the said sum of rs. 300/- was paid to him by P. W. 1 on behalf of P. W. 4 towards the costs of medicines and fee,seemstobemoreplausible and coherent.- insofar as the trap is concerned, the explanation of the accused-appellant is that since he initiated disciplinary proceedings against one Shantaiah, Radiographer of TB hospital, who is said to be the brother of p. W. 1 s father, though denied by him and against one Susheela, who is wife of superintendent of Police, to wreak vengeance against him, the trap was arranged, cannot be given a total go-bye. ( 23 ) THE learned Standing Counsel for the acb contended that when once the gratification is found accepted by the accused, a legal presumption can be drawn that such gratification was accepted as a reward for doing public duty and it is a compulsory presumption; that apart from that a presumption under Section 114 of the evidence Act can also be drawn. In support of his contention, reliance is placed on a decision of the Supreme Court in M. Narsinga rao v. State ofandhra Pradesh. ( 24 ) THE learned counsel for the appellant vehemently contended that when it is not provedbeyond reasonable doubt that tainted amount was paid on demand of the accused, as bribe, the question of a drawing legal presumption under Section 20 (1) of the Act does not arise, but at the most a presumption under Section 114 of the Evidence Act can be drawn and it is a rebuttable presumption. To support his submission, reliance is placed on a decision of the Supreme Court in Trilok chand Jain v. State of Delhi. In this case the apex Court has held that the accused may rebut the presumption by sh6wing a mere preponderance of probability in his favour and it is not necessary for the accused to establish his case beyond reasonable doubt. It is further held that mere plausibility of an explanation given by the accused in his examination under Sec. 342 Cr. It is further held that mere plausibility of an explanation given by the accused in his examination under Sec. 342 Cr. P. C. may not be enough, the burden lies on him to negate the presumption may stand discharged if the effect of the material brought on record in its totality renders the existence of the fact presumed, improbable. ( 25 ) EVIDENTLY, the purpose of the presumption under Sec. 20{1) (which is virtually the same as that of Sec. 4 (1) of PC act, 1947) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offence under Section 5 (1) of the Prevention of Corruption Act and the presumption therefore, can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still-born. It is further held by the Apex Court that it must be shown that there was an understanding that the bribe was given in consideration of some official act or conduct. It is true that in law, the incapacity of the government Servant to show any favour or render any service in connection with his official duties does not necessarily take the case out of the mischief of these penal provisions. Nevertheless, it is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward for doing or forbearing to do any official act or for showing any favour of disfavour in the exercise of his official functions, that the question as to whether the government servant receiving the money had the requisite incriminatory motive is one of fact. ( 26 ) RELIANCE is also placed by the learned counsel for the appellant on a decision rendered by a learned Single Judge of this court in Giduthuri Jagannayakulu v. State of andhra Pradesh wherein it was held that the presumption under Section 4 (1) (20 (1) of the pc Act, 1988) arises when the prosecution established that the accused received the amount otherwise than by way of legal remuneration and the presumption is rebuttable. On facts, when the accused soon after receipt of the amount stated that the amount was paid towards the arrears of kist due from the complainant and the accused is entitled to collect the same, plea of the accused found probable and therefore, the presumption stood rebutted. ( 27 ) HERE in this case also, the accused- appellant has offered spontaneous explanation that the amount of Rs. 300/- was paid by P. W. 1 on behalf of P. W. 4, towards the costs of medicines and fee and produced ex. P-15 to that effect and thus he has rebutted the presumptionby showing preporlderance of probability in his favour. That apart, as held by the Supreme Court in Trilok Chand s case (3 supra), the incapacity of the accused is an important factor bearing on the question as to whether the accused had received the gratification as a motive or reward for doing or forbearing to do any official act or for showing any favour or dis-favour in the exercise of his official functions. This observation of the Supreme Court squarely applies to the facts of the case on hand, inasmuch as the accused - appellant was not monopolised either to discharge or admit any patient, but it is the decision of the committee which decides whether to continue the treatment or not in respect of any patient. ( 28 ) I am in agreement with the learned counsel for the appellant that the presumption under Section 20 (1) of the Act arises only when the prosecution established the fact that the accused received the amount otherwise than by way of legal remuneration and it is a rebuttable presumption. The appellant herein has shown to the satisfaction of the court that the sum of Rs. 300/-, which he had received from F. W. 1 was legal remuneration, which was legally due to him under Ex. P-15. For the foregoing discussion, i am of the considered view that the degree and the character of the burden of proof which Sec. 20 (1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under Sec. 101 of the Evidence Act rests on the prosecution and it is not necessary for the accused to establish his case beyond reasonable doubts. For the aforementioned reasons, I have no hesitation in holding that the prosecution has failed to establish the guilt of the accused beyond reasonable doubt for the foregoing reasons and secondly in view of the inconsistent evidence of P. Ws. 1 to 4 with regard to their relationship, demand made by the accused for payment of the bribe of rs. 300/-, and also in view of initiation of departmental enquiry by the accused Officer -Appellant, against one Shantaiah, radiographer of TB Hospital, who is said to be the brother of P. W. 1 s father and also against one Smt. Susheela, who is wife of superintendent of Police, to wreak vengeance against him, the trap was arranged. In view of the foregoing discussion, I am of the considered view that the conviction and sentence recorded by the learned Special judge cannot be sustained. ( 29 ) THE Criminal Appeal is accordingly allowed setting aside the conviction and sentence awarded by the court below.