JUDGMENT :- Vexed by his conviction for offence punishable under Section 7 and 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 and sentence to RI for 6 months and fine of Rs.500/- in default RI for one month, and RI for 2 years with fine of Rs.1,000/- in default further RI for two months on the two counts inflicted upon him by the Special Judge, Gondia in Special Case No.3/ 93 before him, the convict has preferred this appeal. 2. The facts which gave rise to prosecution of the appellants are as under: The accused was serving as a Assistant Clerk in Panchayat Samiti (Education Department) Tirora, District Bhandara. He was in-charge of processing various bills of teachers. Complainant Pandurang Kapse, Head Master was transferred from Primary School, Khamari to Pre-Middle School at Chandori in November, 1991. He had submitted papers for processing his transfer T.A. Bill. He visited the office of the accused 4 to 5 times and the accused gave various excuses. In July, 1992, accused told the complainant that the bill was sent to Accounts Clerk Mr. Wakalkar in the Accounts Section of Panchayat Samiti, Tirora. Mr. Wakalkar informed the complainant that the bill was indeed received and would take about one month for sanction. On 19-8-1992 when the complainant again inquired Mr. Wakalkar, he was told that the bill had sent black to the accused as there were several mistakes in the bill. The complainant met the accused, who told the complainant that the bill was liable to be cancelled. The complainant requested that the bill should not be cancelled, where upon the accused asked the complainant to wait. Accused met Shri. Wakalkar and told the complainant that the complainant would have to spend a sum of Rs.500/- to get the T. A. bill of Rs.2,465/- sanctioned. Ultimately, the accused agreed to accept Rs.400/- for which the complainant sought 5 to 6 days time. The accused asked the complainant to bring the sum of Rs.400/- in the office at 4 to 5 p.m. on 25-8-1992. 3. Complainant Pandurang Kapse approached the Anti Corruption Bureau, Bhandara and his complaint was reduced into writing. The Anti Corruption Bureau laid the trap after performing the necessary pre-trap panchanama and smeared the currency notes of Rs.400/- each with phenolphthalein powder. The raiding party, the panchas and the complainant proceeded to Tirora. 3. Complainant Pandurang Kapse approached the Anti Corruption Bureau, Bhandara and his complaint was reduced into writing. The Anti Corruption Bureau laid the trap after performing the necessary pre-trap panchanama and smeared the currency notes of Rs.400/- each with phenolphthalein powder. The raiding party, the panchas and the complainant proceeded to Tirora. Complainant and Choudhari went to the Office of Education Department and the complainant made inquiry with the accused about the bill. At the request of accused, the complainant, Choudhari and accused walked down to a hotel which is near to panchayat samiti. On accused asking the complainant whether he had brought the money, the complainant took out marked currency notes from the pocket of his shirt and delivered them to the accused, which the accused kept in the pocket of his pant and started proceeding towards his Office. After receiving the pre-determined signal, the raiding party rushed to the spot and caught the accused. The market currency notes worth Rs.400/- were recovered from the pocket of the accused. It was ascertained that the notes were the notes which had been smeared with phenolphthalein by sprinkling sodium carbonate solution on each of marked currency notes. After performing the panchanama of the trap, a formal F.I.R. was registered. On completion of investigation, sanction to prosecute appellant was sought from the Chief Executive Officer of Z. P. under whom the appellant worked. On receipt of sanction, charge-sheet was sent up. 4. Since the accused pleaded not guilty to the charge of offence punishable under Sections 7 & 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, he was put on trial at which the prosecution examined in all 5 witnesses. The accused examined two witnesses in defence. After considering the evidence tendered in light of defence raised, the learned trial Judge convicted the appellant and sentenced him as mentioned above. Aggrieved thereby this appeal has been filed. 5. I have heard Advocate Patil for appellant and Advocate Shri. D. M. Kale, learned A.P.P. for the State. With the help of both the learned counsel, I have gone through the evidence tendered. Apart from the complainant the prosecution had examined panchas PW -2 Kanhaiyalal Choudhari and PW3 Meshram, Chief Executive Officer of Z.P., Bhandara, who had granted sanction for prosecuting appellant PW -4 Sharadchandra Mopkar and the Investigating Officer, Sub Divisional Police Officer, Mohd. Abdul Ajiz as PW-5. Apart from the complainant the prosecution had examined panchas PW -2 Kanhaiyalal Choudhari and PW3 Meshram, Chief Executive Officer of Z.P., Bhandara, who had granted sanction for prosecuting appellant PW -4 Sharadchandra Mopkar and the Investigating Officer, Sub Divisional Police Officer, Mohd. Abdul Ajiz as PW-5. The leaned counsel for the appellant submitted that while PW -1 Pandurang Kapse had stated that the accused had made an inquiry with him as to whether the complainant had brought money, Panch PW-2 Kanhaiyalal Choudhari had stated that the complainant had himself told the accused that he had brought money and then complainant tendered the money to the accused. Thus, this witness does not state about demand of money by the accused in his presence. The witness categorically stated that the accused had not demanded money in his presence. The learned Additional Public Prosecutor pointed out that the witness was declared hostile and was cross-examined by the Additional Public Prosecutor wherein he admitted, on being confronted with his statement, that the accused had indeed asked the complainant whether he had brought money. In cross-examination on behalf of accused, the witness reiterated that it was not correct to suggest that the accused did not demand money in his presence. 6. In respect of this evidence, the learned counsel for the appellant sought to draw my attention to the decision of Supreme Court in Karuppanna Thevar and others Vs. The State of Tamil Nadu, AIR 1976 Supreme Court 980. It was held by the Court that while testimony of a hostile witness may not be rejected outright but the Court has at least to be aware that prima facie, a witness who makes different statements at different times has not regard for truth. The Court should therefore, be slow to act on the testimony of such a witness and, normally, it should look for corroboration to his evidence. It may be seen that what happened in this case is not that the witness has given different version at different times. In case of trap, the number of events are witnessed by a panch, right from the verification of complaint to the performance of trap panchnama. There are number of details which a person is required to remember. It may be seen that what happened in this case is not that the witness has given different version at different times. In case of trap, the number of events are witnessed by a panch, right from the verification of complaint to the performance of trap panchnama. There are number of details which a person is required to remember. Therefore, un-like case of an incident of scuffle or assault, where the number of actions, which are witnessed are few, in a trap case, it may be possible for a witness to slip over a detail while deposing in the Court years after the trap. In this case, the witness had deposed about six years after the incident, and on being confronted with police statement, he had not only corrected himself but stuck to his version, thereafter. In any case his version received due corroboration from that of the complainant. 7. The learned counsel for the appellant next submitted that while PW-1 Pandurang Kapse had stated that PW -3 Shri. Meshram had taken out the currency notes from the pocket of the accused. PW-2 Kanhaiyalal Choudhari had stated that the notes were taken out by the police. PW - 3 Shri. Meshram has stated that the ACB Officer asked him to take out the money from the accused and accordingly, took out the tainted money from the pocket of the accused. This discrepancy is too small to vitiate the evidence of the prosecution witness. If witnesses give elaborate details about the incident in orchestrated harmony, their evidence would be liable to be rejected on the ground that they were tutored. Therefore, some discrepancy here and, there, does not necessarily indicate lack of credit worthiness, but rather shows normal human tendency to forget over the course of years. 8. The learned counsel for the appellant also drew my attention to the decision in Sat Paul Vs. Delhi Administration, AIR 1976 Supreme Court 294 where the Court ruled that if the Judge finds that the credit of the witness has not been completely shaken, he may, after reading and considering the evidence of the witness, as a whole, with due caution and care, accept, in the light of the other evidence on the record, that part of his testimony which he finds to be creditworthy. The learned counsel submitted that in para-23 of this judgment, the question of poor moral fibre of a witness was also referred to. He submitted that complainant Pandurang Kapse admitted in his cross-examination in para 12 that he had received a show cause notice from the Education Officer, that he was the only Head Master to be transferred in the said transfer order, that a Criminal Case bearing No. 156/1990 was filed against him in the Court at Tirora, and that Police Inspector Khamari had lodged a report against him at police station Tirora. He also admitted that on his report a case under the Prevention of Corruption Act was filed against a Patwari of Tirora, who was convicted by the Court of Sessions, but was acquitted in the High Court. It was suggested to the complainant that he is in the habit of making allegations against persons who do not agree to do his illegal work. The learned counsel for the appellant submitted that since the complainant is of such antecedents, the observations in para 23 in the Sat Paul case would apply and the Court should look for independent corroboration and should not accept weak corroboration like that of PW-2 Kanhaiyalal Choudhari, who too was hesitant. 9. It may be seen that the observations about a witness having poor moral fibre came in the context of the complaint in the said case, where the complainant had approached the Anti Corruption Bureau with a complaint against the Railway Police, who had questioned them for being engaged in trafficking young women. It would be an error to compare such person with a Head Master, merely because he filed a case under the Prevention of Corruption Act in the past, or was party to a criminal case. Incidentally PW-1 Pandurang Kapse had stated that the criminal case no.156/1990 was disposed of by compromise. 10. The learned counsel for the appellant also drew my attention to a curious complaint made by PW -1 Pandurang Kapse to the Court after two paragraphs of the examination-in-chief. The complainant stated that he did not receive "briefing" from the Prosecutor's Office. The learned counsel for the appellant stated that was no occasion for the complainant to make such statement and the fact would indicate that he had in fact received briefing and wanted to just rule out that he was tutored. The complainant stated that he did not receive "briefing" from the Prosecutor's Office. The learned counsel for the appellant stated that was no occasion for the complainant to make such statement and the fact would indicate that he had in fact received briefing and wanted to just rule out that he was tutored. As rightly submitted by the Additional Public Prosecutor, the complainant is a Head Master, who had previously been complainant in a matter under the Prevention of Corruption Act. He might have expected that the prosecutor should have briefed him in the matter and, therefore, complained to the Special Judge that he had not been briefed. This circumstances is absolutely of no use. 11. The learned counsel for the appellant next submitted that the incident had taken place in a hotel and it was possible for the prosecution to examine some independent witnesses. Non-examination of independent witnesses should, according to the learned counsel, result in an adverse inference. He submitted that withholding independent witness or material witness has been scoffed upon by the Apex Court in Sawal Das Vs. State of Bihar, AIR 1974 SC 778 . In that case in the context of a murder trial the Court observed that omission to produce important witness would lead to a presumption that they were not produced because they were not likely to support the prosecution. The witnesses not produced in that case where children of the victim and also a maid servant present in the verandah outside the room whose statement was recorded under Section 164 of Code of Criminal Procedure. No parallel can be drawn with the case in hand, since in this case all the relevant witnesses have been examined. The deficiency, if any, left by the prosecution in not examining witnesses, who may have been in the hotel has been taken care of by the defence by examining DW -1 Anil Kumar Madame who runs hotel in front of panchayat samiti, where the incident took place, and DW-2 Sadhu Waghade a Compounder in Vetamary Hospital of Panchayat Samiti, who claimed to have been present in the hotel at the time of incident. It is curious to note that while DW-1 did not state that any money was thrusted in the pocket of the accused, DW-2 Waghade stated that the complainant was putting something inside the pocked of the accused. It is curious to note that while DW-1 did not state that any money was thrusted in the pocket of the accused, DW-2 Waghade stated that the complainant was putting something inside the pocked of the accused. It is pertinent to note that it was suggested to the complainant in his cross-examination that he had put he money into the pocket of full pant of the accused when they were enjoying coffee in the hotel. If this is so, the evidence of DW-2 would became false. DW-2 Waghade states that after taking tea Shriram Chachane, the accused was in standing position when something was pushed by accused. 12. The learned counsel for the appellant next submitted that the complainant had in fact named both Chachane and Wakalkar in his report. In fact Wakalkar was supposed to pass the bill of the complainant and, therefore, there was no reason for the accused to demand or receive any sum of money. The learned counsel submitted that there was nothing to show that the work was entrusted to the accused. He submitted that the complainant himself stated that the work was entrusted to Smt. Kurve Bai. However, this is not so. The complainant stated that the work of Mundikota village was done by Smt. Kurve Bai, and that it was done by the accused. The complainant had explained the roles of Wakalkar, Kurve Bai and the accused. Since the obstacle in passage of complainant's bill was to be cleared by the accused, there is no infirmity in the claim that accused demanded and accepted money. 13. The learned counsel for the appellant next submitted that presumption under Section 4 of the Prevention of Corruption Act 1947 was held to have been rebutted if the accused offered probable explanation, as held in the case Man Singh V s. Delhi Administration, AIR 1979 Supreme Court 1455. There can be no doubt that it is enough for the accused to raise a probability to rebut the presumption and it is not necessary to discharge his burden by proof beyond doubt. However, here, there is no explanation from the accused as to how the money was found with him. There can be no doubt that it is enough for the accused to raise a probability to rebut the presumption and it is not necessary to discharge his burden by proof beyond doubt. However, here, there is no explanation from the accused as to how the money was found with him. The learned Additional Public Prosecutor submitted that far from furnishing any plausible explanation the accused has tried to first make an allegation against the complainant that he is in the habit of making allegation against those who do not agree to illegal work of the complainant, then the accused sought to establish that the demand of money was not proved, and lastly, the accused even set up two defence witnesses, who ultimately led the accused to his nemesis by coming up with a story contradictory to the one suggested by defence in cross-examination of prosecution witnesses. 14. As to the contention of the learned counsel for the appellant that the accused was not entrusted with the work of processing complainant's bill and therefore, was not in a position to do an official favour, the learned Additional Public Prosecutor submitted that the evidence of the complainant sufficiently proved that it was accused who was consistently delaying the processing of the bill. Further he pointed out that if the accused was not concerned with the work, there was absolutely no reason for the accused to walk with complainant to a hotel or for the complainant to falsely implicate the accused. He pointed out that the defence that the complainant is in the habit of falsely implicating persons who refused to do illegal work implies that the complainant wanted an illegal favour from the accused, further implying that the accused was entrusted with such duty. In view of the foregoing, it cannot be said that the learned Special Judge was in any manner in error in holding the appellant guilty of offence punishable under Sections 7 and 13 of Prevention of Corruption Act. 15. There are no technical difficulties in this case since the sanction accorded to the prosecution of the appellant has been duly proved by consent evidence tendered by then Executive Officer of Z.P. 16. In view of this the appeal fails and is dismissed. Appeal dismissed.