L. NARASIMHA REDDY, J. ( 1 ) THESE two appeals arise out of the judgment of the Court of Special Judge for cbi Cases, Visakhapatnam, in C. C. No. 4 of 1995. A-l therein had filed Crl. A. No. 1062 of 1996 and A-2 had filed Crl. A. No. 1063 of 1996. Hence, they are disposed of through a common judgment. ( 2 ) A-L and A-2 were tried for offences under Sections 7 and 13 (1)) (d) (ii) read with section 13 (2) of the Prevention of Corruption act, 1988 (Hereinafter referred to as the act ) in C. C. No. 4/1995. The trial Court, through its judgment dated 10-12-1996, had convicted them for the said offences. A-1 was sentenced to undergo RI for one year and to a pay fine of Rs. 1,000/-; in default to undergo SI for 3 months for the offence under section 7 of the Act. Similar sentence was ordered for the offence under Section 13 (1) (d) (ii) read with Section 13 (2) of the Act. A-2 was sentenced to undergo RI for 6 months and to pay a fine of Rs. 200/-; in default to undergo SI for 15 days, for the offence under section 7 of the Act and to undergo RI for 1 year and to pay a fine of Rs. 300 /-; in default fo undergo SI for 1 month, for the offence under Section 13 (1) (d) (ii) read with section 13 (2) of the Act. Both the sentences were directed to run concurrently. ( 3 ) THE case, as presented by the prosecution, is as follows:- a-1 was working as Enforcement officer (Provident Fund Inspector) in the office of the Regional Provident Fund Commissioner, visakhapatnam during the year 1994. A-2 was working as UDC under him. P. W. 1 is the proprietor of M/s. Sunisha Engineering works, Visakhapatnam. He has executed some works in the Visakhapatnam Steel plant. He was to be paid the final bill for the works executed by him. For the settlement of final bills, Provident Fund Clearance certificate (hereinafter referred to as the certificate ) to be issued by the jurisdictional enforcement Officer of the Provident Fund was necessary. On 21-10-1994, P. W. 1 had approached A-1 and requested him to issue the said Certificate. For the settlement of final bills, Provident Fund Clearance certificate (hereinafter referred to as the certificate ) to be issued by the jurisdictional enforcement Officer of the Provident Fund was necessary. On 21-10-1994, P. W. 1 had approached A-1 and requested him to issue the said Certificate. A-1 had handed over a slip to him wherein the documents to be produced for issuance of such Certificate were mentioned. Having issued the slip marked as Ex. P-1, A-1 is also alleged to have demanded a sum of Rs. 400/- for himself and rs. 50/- for A-2 for issuing the Certificate. Though P. W. I expressed his financial difficulties in paying the amount, A-1 insisted for payment of the same. The certificate was to be collected on 28-10-1994 at 4. 00 p. m. ( 4 ) P. W. 1, who was unwilling to pay the bribe amount demanded by A-l, had reported the matter to SP. , CBI, visakhapatnam, on 28-10-1994 in the morning. On the complaint, the CBI registered a case in RC. No. 25/94 under section 7 of the Act. The matter was entrusted to an Inspector of Police, who is examined as p. W. 5. Necessary formalities, such as, preparation of Panchanama, treating the cash to be paid to A-1 and A-2 on demand with phenolphthale in powder, etc. were complied with, for the purpose of laying the trap. % ( 5 ) P. W. 1 had proceeded to the Office of the Provident Fund Commissioner in evening on 28-10-1994. By the time P. W. 1 went to the office, A-1 was not present in his chamber. After he came, P. W. 1 paid the amount on demand. On receiving the said amount, A-1 instructed A-2 to prepare the Certificate. The certificate was prepared by A-2. Under instructions of A-l, another amount of rs. 50/- was paid to A-2. After making these payments and collecting the Certificate, p. W. 1 came out and gave the pre-arranged signal. P. W. 5 and other panch witnesses have gone to the Chamber of A-1, where a-2 was also present. The Sodium Carbonate solution used in washing the hands of both the accused turned into pink. The amount of rs. 400/- was recovered form the shirt pocket of A-1 and Rs. 50/- was from the shirt pocket of A-2. The wash of the shirt pockets with the sc solution also yielded positive results. The Sodium Carbonate solution used in washing the hands of both the accused turned into pink. The amount of rs. 400/- was recovered form the shirt pocket of A-1 and Rs. 50/- was from the shirt pocket of A-2. The wash of the shirt pockets with the sc solution also yielded positive results. With these allegations, the prosecution examined P. Ws. 1 to 6 and marked Exs. P-1 to p-16 and M. Os. 1 to 10. For the defence, d. Ws. 1 to 4 were examined and documents d-1 to D-6 were marked. ( 6 ) SRI C. Padmanabha Reddy, learned senior Counsel appearing for the appellants, submits that the ingredients for offence under sections 7 and 13 of the act were not established in this case. He submits that on 21-10-1994, A-1 did not attend the office and was on outside duty along with D. W. 1 and as such, the question of P. W. 1 approaching A-1 in his office on that day and the latter demanding amount for issuance of the certificate does not arise. As regards the acceptance, learned counsel submits that with pre-arranged plan, P. W. 1 had thrusted the amount in the pockets of A-1 and A-2 and even before they could realise what has happened, the CBI officials stepped in and have implicated them in the case. Placing reliance upon the various judgments of the supreme Court, he submits that mere recovery of amount by itself does not establish the crime under Sections 7 and 13 of the Act, unless it is proved that the amount was demanded by the public servant and accepted by him voluntarily. As regards A-2, he submits that, even according to the prosecution, there was no demand by A-2 and, at any rate, the amount said to have been paid to him was trivial. Referring to section 20 of the Act, he submits that the Act itself contemplates a semblance of liberal view, where the amount said to have been paid to a public servant is trivial. ( 7 ) SRI C. Sadasiva Reddy, learned Standing counsel for the CBI, submits that the plea of alibi put forward on behalf of A-1 was not at all established. He states that A-1 had only made an attempt to create alibi and in the process, certain records, such as, Exs. D-3 to d-5 were fabricated. ( 7 ) SRI C. Sadasiva Reddy, learned Standing counsel for the CBI, submits that the plea of alibi put forward on behalf of A-1 was not at all established. He states that A-1 had only made an attempt to create alibi and in the process, certain records, such as, Exs. D-3 to d-5 were fabricated. The learned counsel submits that the prosecution has established the aspects of demand as well as the acceptance of the illegal gratification by the accused, beyond any reasonable doubt, and that the judgment of the trial Court does not call for any interference. ( 8 ) A-L was working as Enforcement officer. P. W. 1 is said to have approached him for issuance of a Certificate to be produced before the authorities of visakhapatnam Steel Plant for final payment of the bill in respect of a contract. It is for issuance of this Certificate that A-1 is alleged to have demanded Rs. 400/- for himself and rs. 50/- for A-2, the clerk under him. ( 9 ) P. W. 1, in his evidence, has deposed to the said fact. He placed before the trial Court ex. P-1, which is a slip, on which A-1 had written the list of certificates and documents necessary for issuance of that Certificate. The issuance of that slip and the writing thereon is not disputed. At the bottom of the slip, P. W. 1 had written that he received the slip from A-1 on 21-10-1994. ( 10 ) IN the cases of this nature, one hardly expects any eyewitness to be present when the demand is said to have been made by public servant. Findings in this regard are to be recorded on the basis of evidence, which is mostly circumstantial in nature. As held by the Supreme Court in G. V. Nanjundiah v. State (Delhi Administration), the prosecution has to establish the existence of a demand of illegal gratification by the public servant. To a substantial degree, the subsequent aspect viz. , the acceptance, would lend support to the aspect of demand. However, acceptance by itself cannot be treated as a proof for existence of the demand. There should be certain basic elements as regards the plea, regard being had to the impossibility of there being an eye-witness, for the demand. To a substantial degree, the subsequent aspect viz. , the acceptance, would lend support to the aspect of demand. However, acceptance by itself cannot be treated as a proof for existence of the demand. There should be certain basic elements as regards the plea, regard being had to the impossibility of there being an eye-witness, for the demand. ( 11 ) INASMUCH as P. W. 1 had deposed to the existence of circumstances as to demand, an effort was made on behalf of the accused, particularly A-1, with the support of plea of alibi. D. W. 1 is another Enforcement Officer in the same office, where A-1 was working. According to his version, on 21-10-1994, he went for inspection of an establishment "essar Pelitisation Project, Visakhapatnam". When he found A-1 in that area, he took his assistance for the rest of the day, since the volume of work was more. He has also stated that after completion of the inspection, he submitted report dated 24-10-1994 (marked as Ex. D-4) to the Regional Provident Fund commissioner. Monthly Diary of Inspections maintained by D. W. 1 for the month of october 1994 and a similar diary for the same month maintained by A-l, were marked as exs. D-3 and D-5. The learned counsel for the appellants submits that the entry relating to 21-10-1994 in Ex. D-3 reveals that D. W. 1 had inspected Essar Project from 10-30 a. m. to 5. 00 p. m. and in Column 6 thereof, it has been clearly stated that the assistance of A-1 was taken. It is also his case that the corresponding entry in Ex. D-5 as well as reference to the said fact in Ex. D-4 clearly establishes that A-1 was with D. W, 1 through out that day. On the basis of these submissions, he contends that the question of P. W. 1 approaching A-1 at the office, and the latter making a demand of Rs. 400/- for himself and Rs. 50/- for A-2, does not arise. ( 12 ) A close scrutiny of the relevant entry in Ex. D-3 reveals that the entries in column 5, which deal with duration of visit, are written subsequently, in column 6, after the words "ascertained preliminary information regarding number of contractors", the words "along with the assistance of RVDRK Prasad, eo" were written. 50/- for A-2, does not arise. ( 12 ) A close scrutiny of the relevant entry in Ex. D-3 reveals that the entries in column 5, which deal with duration of visit, are written subsequently, in column 6, after the words "ascertained preliminary information regarding number of contractors", the words "along with the assistance of RVDRK Prasad, eo" were written. The syntax of the latter set of words does not fit into the former. The timings were written with a separate ink and pen, against every entry in Ex. D-3, obviously to suit the situations. It was not as if D. W. 1 had obtained the permission of the competent authority to draw the services of A-1 for the entire day- The manner in which D. W. 1 took the assistance of A-l, was elicited through d. W. 1 in cross-examination, as under "the Steel Plant, Visakhapatnam is within the jurisdiction of A-l. Essar project is in my jurisdiction. On 21-10-1994, I saw A-1 in the area of Essar project and as there was load of work to be attended by me in the Essar Project, i took his assistance. I have not mentioned the timings in my report about my visit in the presence of myself and A-1. " ( 13 ) IN Ex. D-3, the entry in column 2, which deals with the name of the establishment/factory visited, reads as under: "essar Pelitisation Project" if D. W. 1 and A-1 visited the same place on that day, the corresponding entry in Ex. D-5 ought to have been the same. However, in ex. D-5, the name of establishment/factory visited by A-1 on 21-10-1994, in column 2, reads as under :-"arjun Investigation and Security services P Ltd. Cemen Enterprises and radha Krishna Comlink. It was only in column 4, which deals with the location, that A-1 made some effort to bring in the name of Essar. The entries in column 4 for 21-10-1994, read as under: "dwarka Nagar port Area fly Over (Essar) along with Shri D. T. Kumar, EO. "the name of any officer does not fit into the entry as regards the location. In rest of the entries; I do not find the name of any officer or for that matter establishment in column 4. The evidence of D. W. 1 and the original entries in D-3 and D-5 do not supplement each other. "the name of any officer does not fit into the entry as regards the location. In rest of the entries; I do not find the name of any officer or for that matter establishment in column 4. The evidence of D. W. 1 and the original entries in D-3 and D-5 do not supplement each other. There are any number of contradictions. Ex. D-4, which is said to be the report submitted to the Regional provident Fund Commissioner, is not supported by any independent witness. There is nothing in it to state that it was submitted before the trap took place on 28-10-1994. ( 14 ) IF at all the plea of alibi was true, nothing prevented A-1 to examine any responsible officer to speak to the fact that he did not attend the office on that day. While his diary discloses that he has visited three organisations, the diary of D. W. 1 discloses the name of a totally different Organisation. In view of these inconsistencies, the plea of alibi raised on behalf of A-1 cannot be accepted. ( 15 ) A-L did not dispute that he had issued the slip Ex. P-1. He had made exhaustive submissions through a separate memorandum when he was examined by the trial court under Section 313 Cr. P. C. Though he narrated elaborately to the effect that he visited Essar Pelitisation Project along with D. W. 1, he did not say a word as to when P. W. 1 first visited him and when he handed over Ex. P-1 to him. Under these circumstances, the versions presented by p. W. 1 that he visited A-1 on 21-10-1994, A-1 issued a slip Ex. P-1 and A-1 demanded certain amounts for issuance of Certificate, deserves to be accepted. ( 16 ) AS regards the trap laid by the CBI, the learned counsel for the appellants submits that P. W. 1, after obtaining Certificate, had thrusted an amount of Rs. 400/- into the shirt pocket of A-1 and Rs. 50/- into the shirt pocket of A-2 voluntarily. According to him, on noticing the same, A-1 had called D. W. 3 to secure the presence of P. W. 1 and in the meanwhile, the CBI officials stepped in. 400/- into the shirt pocket of A-1 and Rs. 50/- into the shirt pocket of A-2 voluntarily. According to him, on noticing the same, A-1 had called D. W. 3 to secure the presence of P. W. 1 and in the meanwhile, the CBI officials stepped in. ( 17 ) IT is not in dispute that on noticing the pre-arranged signal, P. W. 5, the Inspector of cbi, along with mediators, have stepped into the cabin of A-1. The hands of A-1 and a-2 were washed with the SC solution, the solution turned out to be pink, an amount of rs. 400/- from A-1 and Rs. 50/- from A-2 was recovered, and when the shirt pockets of A-1 and A-2 were washed with the same solution, they turned out to be pink. The learned counsel for the appellants has stressed upon the discrepancy as to the point of time of recovery of the amount. While according to P. W. 2, a panch witness, the hands of A-1 and A-2 were washed after they have removed the amount of Rs. 400/- and rs. 50/- respectively, according to the evidence of P. W. 5, the amounts were recovered from the pockets, after the hands of A-1 and A-2 were washed. This discrepancy hardly makes any difference. Another submission is that an Officer of provident Fund, by name Madhava Rao was deputed by the Assistant Commissioner of provident Fund to witness the trap proceedings, but he was not examined. As long as he was not roped into the enquiry as witness or in other capacity, non-examination of that officer matters little. ( 18 ) IN Surajmal v. The State (Delhi administration), it was held that mere recovery of money from an accused is not sufficient. The surrounding circumstances are required to be taken into account. The purport of various judgments, including the one in Meena v. State of Maharashtra and shantilal v. State of Rajasthan, are to the effect that recovery of tainted amount from a public servant can be taken as one of the important factors, but the some cannot be treated as a conclusive proof. The purport of various judgments, including the one in Meena v. State of Maharashtra and shantilal v. State of Rajasthan, are to the effect that recovery of tainted amount from a public servant can be taken as one of the important factors, but the some cannot be treated as a conclusive proof. There are also decisions to the effect that the circumstances, such as, the public servant coming into contact with tainted amount in the process of throwing the same from the table or preventing the complainant from handing over or thrusting it, need to be taken into account. These, however, are questions of fact, which vary from case to case. The present case needs to be dealt with, keeping these principles in view. ( 19 ) ONCE the amount is recovered from the persons of A-1 and A-2, it is for them to explain the circumstances under which it so occurred. It was their case that P. W. 1 was handed over the Certificate and having received the same he thrusted the amount of rs. 400/- into the pocket of A-1 and Rs. 50/- into the pocket of A-2 and left the cabin. It was further alleged that on noticing the same. A-1 called P. W. 3, an Attender, to fetch p. W. 1 so that the amount can be returned, and in the meanwhile, the CBI officials stepped in. ( 20 ) ADMITTEDLY, A-2 was present in the cabin of A-1. P. W. 1 is said to have thrusted the amount into their respective pockets. In the normal course, if the amount was not paid on demand, A-1 and A-2 ought to have not only caught hold of P. W. 1, but also proceeded against him, if necessary,by taking the assistance of other colleagues, who are in the same hall. That did not happen. If P. W. 1 was mighty and over-powered A-1 and A-2 in planting the amount in their pockets and left the cabin, the accused ought to have thrown away the amounts or raised hue and cry, which would have naturally invited the attention of the rest of the colleagues. Even this did not happen. By the time P. W. 1 went out side the office, gave the pre-arranged signal and the CBI officials entered the cabin, at least 5 minutes would have elapsed. Even this did not happen. By the time P. W. 1 went out side the office, gave the pre-arranged signal and the CBI officials entered the cabin, at least 5 minutes would have elapsed. Even during this time, there was not even a semblance of protest by the accused. Therefore, the theory of P. W. 1 planting or pushing the amount into the pockets of the accused does not gain any credence. Not a single official, who worked in the office of the Provident Fund Commissioner, at the relevant point of time, was examined, to establish that the accused raised some protest alleging that the amount was thrusted into their pockets. The discussion undertaken above indicates that there was demand and acceptance of illegal gratification by A-1. Therefore, the appeal filed by him deserves to be dismissed. ( 21 ) A-2 was proceeded against on the ground that the demand by A-1 was for himself as well as A-2. The prosecution did not place any material before the trial Court indicating that A-2 had made any direct or tacit demand for payment of the amount. It has already been observed that the demand is a concomitant part of the crime under sections 7 and 13 of the Act. There is nothing like a demand for and on behalf of an accused. If admittedly, there was no demand by A-2, he cannot be convicted on the basis of recovery made from him. ( 22 ) SECTION 20 of the Act stipulates that where it is proved that an accused public servant has accepted or obtained the gratification other than the legal remuneration, unless contrary is proved, it shall be presumed that such acceptance shall be as a motive or reward, as mentioned in section 7. Sub-section (3), however, enables the Court to decline to draw such presumption, if the gratification or the amount, in the opinion of the Court, is so trivial, that no inference of corruption may be drawn. What was recovered from him was only a trivial amount of Rs. 50/ -. Having regard to sub-section (3) of Section 20 and the absence of any demand by A-2, it cannot be said that he had committed offence under sections 7 and 13 of the Act. Therefore, the appeal filed by him deserves to be allowed. What was recovered from him was only a trivial amount of Rs. 50/ -. Having regard to sub-section (3) of Section 20 and the absence of any demand by A-2, it cannot be said that he had committed offence under sections 7 and 13 of the Act. Therefore, the appeal filed by him deserves to be allowed. ( 23 ) IN the result, the conviction and sentence against A-1 in C. C. No. 4 of 1995 is upheld and the Crl. A. No. 1062/1996 is dismissed. The conviction and sentence against A-2 in CC No. 4 of 1995 is set aside and the Crl. A. No. 1063/96 is allowed. Fine, if any, paid by A-2 shall be refunded.