JUDGMENT : Heard learned advocates for respective parties. 2. These appeals are arising out of the judgment in Special Case No.19/91 of Special Judge, Jalna whereby appellant in criminal appeal no.314/95 (original accused no.1) is convicted for the offence under Section 7 and 13(1)(d) r.w. 13(2) of the Prevention of Corruption Act 1988 (hereinafter referred to as the Act for short) and sentenced to R.I. 6 months and fine of Rs.100/- I.D. R.I. for one month for the offence u/s 7 of the Act and R.I. for 1 year and fine of Rs.400/- I.D.R.I. for 2 months for the offence u/s 13(1)(d) punishable u/s 13(2) of the Act. Appellant in criminal appeal no.313/95 (original accused no.2) is convicted for the offence under Section 12 of the Act and sentenced to R.I. for 6 months and fine of Rs.100/-I.D. R.I. for 1 month for the offence under Section 12 of the Act. Original accused nos.1 and 2 challenged the said judgment of conviction by preferring separate appeals. However, both being the appeals arising out of the same judgment are decided by this common judgment. The facts in brief which are relevant for the purpose of these appeals are as under: 3. The incident in question was allegedto have taken place in the month of February 1991. Accused no.1 was working as a police constable attached to Moujpuri police station in Jalna district. In the year 1991 p.w.1 Syed Sikandar and his brother p.w.7 Syed Akbar were carrying business of sale of fire wood at Jalna. P.W.8 Sk.Ishaq was working as a driver on truck No. MWP-3325 belonging to one Syed Rajjak. P.W.1 Sikandar and his brother used to purchase fire wood from different places and used to transport the same to their depot at Jalna. For their business they had purchased Babul trees located in the field of p.w.10 Bhivaji Hazare as well as from p.w.13 Subhash Giri. On 14/2/91, p.w.7 Syed Akbar, p.w.9 Sk.Ishaq and one cleaner proceeded to village Bhatepuri by truck no. MWP-3325. They had loaded the wood in the truck in the night and were coming back towards Jalna. When their truck came upto Ramnagar, at about 4 a.m. accused no.1 apprehended their truck and made enquiry about the goods transported in the said truck. P.W.7 Akbar disclosed that the truck is loaded with Babul wood. MWP-3325. They had loaded the wood in the truck in the night and were coming back towards Jalna. When their truck came upto Ramnagar, at about 4 a.m. accused no.1 apprehended their truck and made enquiry about the goods transported in the said truck. P.W.7 Akbar disclosed that the truck is loaded with Babul wood. Accused no.1 made enquiry whether Akbar is possessing the permit for transportation of wood through the truck. P.W.7 Akbar disclosed that for transportation of such fire wood no permit is essential. Accused no.1 who had detained the truck made demand of bribe of Rs.2000/- to release the truck. Akbar was having no money with him, so he expressed his inability to pay the bribe amount. Thereafter, accused no.1 took the truck to Moujpuri police station. On the way to police station accused no.1 made demand of Rs.1500/-. The truck was parked in the premises of Moujpuri police station. Accused no.1 took the keys of the truck and asked Akbar and his driver to sleep there. 4. In the next morning i.e. on 15/2/91, at about 7 a.m. p.w.7 Akbar came to Jalna and narrated the entire incident to his brother p.w.1 Sikandar. Both of them had gone to Moujpuri police station and approached accused no.1. Accused no.1 made enquiry whether they had brought bribe amount of Rs.1500/-. P.W.1 Sikandar tried to convince the accused that no permit is required for transportation of such a fire wood, however, accused no.1 was reluctant to release the truck. Finally p.w.1 Sikandar agreed to pay bribe amount of Rs.1200/- to accused no.1. Out of the agreed sum, he made payment of Rs.700/-. Accepting the amount of Rs.700/- accused no.1 had gone to the residence of p.w.4 P.S.I. Gaur on the pretext that he was going to pay the bribe amount to P.S.I. Gaur. After some time he returned back and asked Sikandar and his brother to pay remaining amount of Rs.500/- in the premises of Court at Jalna as accused no.1 was to visit Court for producing some documents. After Sikandar and his brother agreed his proposal, accused no.1 released the truck. 5. P.W.1 Sikandar and his brother Akbar returned back to Jalna. Sikandar approached Dy.S.P. Kavle attached to Anti Corruption Bureau, Jalna and narrated the incident. Mr.Kavle recorded the complaint of Sikandar and then he decided to arrange trap. After Sikandar and his brother agreed his proposal, accused no.1 released the truck. 5. P.W.1 Sikandar and his brother Akbar returned back to Jalna. Sikandar approached Dy.S.P. Kavle attached to Anti Corruption Bureau, Jalna and narrated the incident. Mr.Kavle recorded the complaint of Sikandar and then he decided to arrange trap. Then he called 2 employees from Zilla Parishad to act as panch witnesses for the trap. On their arrival, they were made aware of the complaint made by p.w.1 Sikandar. Then Mr.Kavle obtained 5 currency notes of 100/- denomination from Sikandar for being used in the trap. Thereafter, anthracene powder came to be applied to the said notes and the notes were given in the custody of the complainant. Demonstration of the anthracene powder was also given to the complainant and the witnesses. Instructions were given to Sikandar that alongwith panch witness he should approach accused no.1 as agreed and on demand of the bribe the tainted notes should be given to the accused. After acceptance of the bribe amount, the complainant should give signal to the raiding party. P.W.9 panch witness Sk.Isamuddin was directed to accompany the complainant and keep watch on the activities of complainant and the accused. On the same day i.e. on 15/2/91 at 2.35 p.m. complainant and panch witness Isamuddin proceeded to the Court building at Jalna. Investigating officer p.w.14 A.P.I. Shinde, another panch witness Malve and other members of A.C.B. followed them towards the old Court building. 6. Accused no.1 was waiting for the complainant in the Court premises. Complainant Sikandar met him and requested to accompany him to the hotel for taking tea. Accused no.2 Dongare was with accused no.1. Both the accused, complainant and panch witness Isamuddin came to Karim Tea House. In the hotel accused no.1 made enquiry with the complainant whether he had brought the bribe amount. Complainant disclosedthat he had brought the money. Then accused no.1 asked the complainant to give bribe amount to accused no.2. Thereafter, complainant took out the tainted notes from his pocket and handed over the same to accused no.2. Accused no.2 accepted the same and after counting the same kept in the right side pocket of his pant. Thereafter accused no.1 returned the driving licence of the complainant. As agreed Sikandar came out of Karim tea house and gave signal to the raiding party members. Accused no.2 accepted the same and after counting the same kept in the right side pocket of his pant. Thereafter accused no.1 returned the driving licence of the complainant. As agreed Sikandar came out of Karim tea house and gave signal to the raiding party members. On the said signal, Dy.S.P.Kavle alongwith panch Malve and other staff members rushed to the hotel. On enquiry, panch Isamuddin disclosed that accused no.2 Dongare had accepted the amount and kept it in his pocket, then the hands of accused no.2 were examined under the light of ultraviolet lamp and it was confirmed that there was anthracene powder on the fingers of his hand. Thereafter, search was taken. Panch Malve took currency notes from the pocket of accused no.2. It was confirmed that said notes were the notes given with the complainant. Then said notes as well as pant of accused no.2 was seized after recording panchanama. Search of accused no.1 was also taken in which notice book and tapal books were found in his possession and same were seized. On the search of complainant driving licence returned by accused no.2 was found and it was also seized. Detailed panchama of this trap was recorded. Thereafter they returned back to the police station. P.W.14 A.P.I. Shinde lodged complaint on which crime no.5/91 came to be recorded. Mr.Shinde investigated the same crime, recorded statements of the witnesses. A map of the place of offence was also got prepared from surveyor p.w.2 Bhagwan Pade. Then the papers of investigation were forwarded to S.P.Jalna who accorded sanction for prosecution. Completing other formalities of investigation, charge sheet came to be filed in the Court of Special Judge at Jalna against accused no.1 for commission of offence under Section 7, 13(1)(d) r.w. 13(2) of the Act and for the offence under Section 12 of the Act against accused no.2. 7. The learned Special Judge framed charge at Exh.11 against both the accused for the offence punishable under Section 7 as well as under Section 13(1)(d) r.w. 13(2) of the Act. Both the accused pleaded not guilty and claimed to be tried. At the trial they put forth a defence of total denial. After recording evidence of all the witnesses, learned Special Judge framed additional charge against accused no.2 for the offence under Section 12 of the Act. Both the accused pleaded not guilty and claimed to be tried. At the trial they put forth a defence of total denial. After recording evidence of all the witnesses, learned Special Judge framed additional charge against accused no.2 for the offence under Section 12 of the Act. After framing said additional charge, prosecution passed purshis Exh.67 that they do not want to examine any more witnesses in proof of this additional charge. Accused no.2 also passed purshis Exh.68 stating that he does not want to lead any witness in support of his defence of additional charge. 8. At the trial prosecution did examine as many as 15 witnesses. P.W.1 Sikandar and his brother p.w.7 Akbar were examined to prove the fact of demand of bribe by accused no.1 for releasing the truck which was detained by accused no.1. P.W.8 Sk.Ishaq, driver was also examined on the same point. P.W.2 Bhagwan Pade the surveyor proved the map of spot Exh.31 drawn by him. P.W.3 Superintendent of Police Krishnalal Bhishnoi proved sanction for prosecution Exh.33. P.W.5 Vasant pathak gave evidence that Karim runs a hotel near the old court building at Jalna. P.W.6 Kondiba Gaikwad police constable was examined to prove the fact that in the alleged night truck loaded with fire wood was parked in the premises of Moujpuri police station. P.W.10 Hazare was examined to prove the fact that p.w.1 Sikandar had purchased the Babul trees and same were transported from Bhatepuri to Jalna. By the evidence of Sikandar and his brother Akbar pre-trap demand is held proved. P.W.1 Sikandar and p.w.9 Isamuddin the panch witness gave evidence about the demand and acceptance of bribe at the time of trap. Relying upon their evidence, learned Special Judge held that during the trap accused no.1 made demand of bribe amount and complainant offered the tainted notes and accused no.2 accepted that amount on the instructions of accused no.1. Accused no.1 came to be convicted for the offence under Section 7, 13(1)(d) r.w. 13(2) of the Act. Accused no.2 came to be convicted for the offence under Section 12 of the Act. Feeling aggrieved with the said order of conviction these 2 appeals came to be preferred by the accused persons. These appeals were admitted by this Court and both appellants have been released on bail. 9. Accused no.2 came to be convicted for the offence under Section 12 of the Act. Feeling aggrieved with the said order of conviction these 2 appeals came to be preferred by the accused persons. These appeals were admitted by this Court and both appellants have been released on bail. 9. On behalf of appellant accused no.1 learned advocate Shri Chatterji submitted that the demand and acceptance of the amount of the bribe is not proved, so the order of conviction is not justified. He made alternative submission that the offence came to be committed in 1991, so considering this lapse of time, lenient view may be taken and order of sentence be modified. 10. On behalf of appellant original accused no.2, learned advocate Shri Salunke advanced submission that initially against accused no.2 charge of abetment of offence punishable under Section 12 of the Act was not framed, same came to be framed after conclusion of the trial and thereafter, opportunity was not given to accused no.2 to cross examine the witnesses, so that trial is vitiated. He also submitted that accused no.2 was not present when demand of bribe was made on 14/2/91. Even at the time of trap and acceptance of amount he had no conversation, so knowledge cannot be attributed to accused no.2 that complainant offered the amount as a bribe and accused no.2 accepted the same as a bribe amount. There is no material to show that the accused no.2 intentionally assisted accused no.1 in commission of offence, so the order of conviction under Section 12 of the Act against accused no.2 is not justified. 11. On behalf of respondent-State learned A.P.P. submitted that the demand of bribe by accused no.1 is established by evidence of complainant and his brother. Even at the time of trap demand was made and said fact is proved by the evidence of complainant p.w.1 and panch witness p.w.9 panch witness Sk.Isamuddin. The accused accepted the said amount through accused no.2, so offence as against accused no.1 is established beyond doubt. Accused no.2 heard the conversation between complainant and accused no.1, so he was aware that amount is being paid by way of bribe, so acceptance of bribe amount by accused no.2 amounts intentional assistance to accused no.1 which amounts an abetment. On these submissions the order of conviction against both the accused appellants is supported by learned A.P.P. 12. Accused no.2 heard the conversation between complainant and accused no.1, so he was aware that amount is being paid by way of bribe, so acceptance of bribe amount by accused no.2 amounts intentional assistance to accused no.1 which amounts an abetment. On these submissions the order of conviction against both the accused appellants is supported by learned A.P.P. 12. Let us first consider the submission advanced on behalf of original accused no.2 who is convicted for the offence under Section 12 of the Act. According to prosecution itself accused no.2 is not an employee in police department working with accused no.1 nor there are allegations that he was present when first time accused no.1 detained the truck and for releasing the same made demand of the bribe amount. As per prosecution case itself accused no.2 came into picture on the next date on which trap was arranged. When complainant and panch witness approached accused no.1 in the hotel and complainant offered amount, accused no.1 asked accused no.2 to accept the said amount and accordingly accused no.2 accepted the same. So as per prosecution itself the acceptance of amount at the time of trap is the only act of accused no.2 on the basis of which he is prosecuted. He is prosecuted for the alleged offence of abetment and convicted under Section 12 of the Act. However, at the trial when charge Exh.11 was framed, no charge against accused no.2 for the offence under Section 12 came to be framed. Perusal of charge Exh.11 shows that charge came to be framed against both the accused for the offence under Section 7 as well as offence under Section 13(2) of the Act. The trial was proceeded and evidence of all the witnesses came to be recorded. Arguments of both the sides were heard and then on behalf of the prosecution, application Exh.66 came to be filed for alteration of charge and to frame additional charge under Section 12 of the Act against accused no.2. After hearing both the parties, learned Judge allowed the said application and by exercising powers under Section 216 of Cr.P.C. additional charge for the offence under Section 12 of the Act came to be framed against accused no.2. After hearing both the parties, learned Judge allowed the said application and by exercising powers under Section 216 of Cr.P.C. additional charge for the offence under Section 12 of the Act came to be framed against accused no.2. Now submission is advanced that after framing this charge no opportunity was given to the accused to lead his evidence or cross examine the witnesses already examined on behalf of the prosecution. There is no merit in this submission. 13. After framing additional charge, on behalf of the prosecution purshis Exh.67 came to be filed that the prosecution do not want to lead any additional evidence in support of additional charge framed against accused no.2. This purshis came to be filed on 10/10/95. Now submission is made that after framing additional charge against accused no.2 opportunity was not given to him to cross examine the witnesses already examined at the trial but this submission is without any merit. On the contrary there is purshis Exh.68 filed on behalf of accused no.2 on 11/10/95 informing the Court that accused no.2 does not intend to examine any witnesses in support of his defence on additional charge. So this purshis passed on behalf of accused no.2 after framing the additional charge makes it clear that after framing additional charge opportunity was given to accused no.2 for leading evidence in his defence but he has not availed that right. It was also open for him to request the Court to recall all the witnesses examined at the trial or any one of them for further cross examination in view of the additional charged framed, but no such request was made but the purshis came to be filed that he does not want to lead any evidence in his defence. So it is not a case of denial of opportunity to lead evidence in defence for additional charge. The provisions of Section 464 and 465 of Cr.P.C. deals with such cases of defect in charge or challenging the findings or sentence on account of any error, omission or irregularity in the proceedings before or during the trial. Under Section 464 Cr.P.C. if the appellate Court finds that omission to frame a charge resulted in failure of justice then direct framing of additional charge and new trial. Under Section 464 Cr.P.C. if the appellate Court finds that omission to frame a charge resulted in failure of justice then direct framing of additional charge and new trial. Present case is not a case of omission of framing charge as additional charge came to be framed after conclusion of the trial. The error pointed out is an error during trial that witnesses were not recalled for cross examination. Section 465 of the Act deals with the cases of errors or irregularities in complaints, summons, warrants, orders, judgments or other proceedings during trial and it is the mandate of the Section that unless in the opinion of appellate Court that failure of justice had in fact been occasioned sentence or findings cannot be reversed or altered. Sub Section 2 of Section 465 of Cr.P.C. mandates that while determining the fact whether failure of justice has occasioned because of any error or irregularity, the Court shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings. Considering these provisions and the facts referred above it can be said that after framing of additional charge opportunity was given to accused no.2 to lead evidence in his defence. That opportunity is not availed and no request was made that accused no.2 intends to cross examine any of the witnesses examined at the trial before framing additional charge. On the contrary, purshis Exh.68 came to be passed that accused does not want to lead any evidence in defence of additional charge. So it cannot be said that during the trial any opportunity was denied to accused no.2 which resulted in failure of justice. On behalf of accused no.2 cross examination of all the witnesses examined at the trial was held suggesting innocence of accused no.2. No additional evidence was led by prosecution after framing additional charge, so it is not a case of causing any prejudice to the accused and it cannot be said that it resulted in failure of justice. So on this count, the judgment of conviction cannot be said to be vitiated. 14. Let us now consider another submission advanced on behalf of accused no.2 that there is no evidence against him to show that in accepting the amount he has intentionally assisted accused no.1 to commit the offence. So on this count, the judgment of conviction cannot be said to be vitiated. 14. Let us now consider another submission advanced on behalf of accused no.2 that there is no evidence against him to show that in accepting the amount he has intentionally assisted accused no.1 to commit the offence. According to prosecution accused no.1 police constable detained the truck belonging to p.w.7 Akbar when that truck was found transporting fire wood. This truck was alleged to have been detained on the ground that p.w.1 Sikandar or his brother p.w.7 Akbar were having no licence for transporting the fire wood. For releasing the said truck, accused no.1 was alleged to have made demand of bribe and actually accepted the amount of Rs.700/- on 14/1/91 out of agreed sum of Rs.1200/-and remaining amount of Rs.500/- was agreed to have been paid in the premises of Court building Jalna on the next day. On this point, of this pre trap demand, the prosecution relied upon the evidence of p.w.1 Sikandar and his brother p.w.7 Akbar. Both of them have stated that on 14/2/91, Sikandar had gone to village Bhatepuri. They had purchased fire wood from p.w.10 Hazare. P.W.10 Hazare supported their version stating that he had purchased Babul trees of one Giri and same were cut by his servant. He had sold the same to p.w.7 Akbar on 14/2/91. Akbar sent his truck to Bhatepuri to fetch the said fire wood. P.W.8 Sk.Ishaq is a driver of the truck in dispute. According to him, alongwith p.w.7 he had gone to Bhatepuri to transport the fire wood, after loading the wood in the truck they were coming towards Jalna and the truck was apprehended and detained in Moujpuri police station. Evidence of Sikandar and Akbar p.w.7 is clear that the truck was detained by accused no.1 in Moujpuri police station on the ground that they were not possessing licence for transport of wood. Akbar who was with the truck intimated this fact to his brother Syed Sikandar. Evidence of Sikandar and Akbar p.w.7 is clear that the truck was detained by accused no.1 in Moujpuri police station on the ground that they were not possessing licence for transport of wood. Akbar who was with the truck intimated this fact to his brother Syed Sikandar. Then on next morning they had gone to police station, approached the accused, accused made demand of Rs.1500/- with them, however, finally the bribe amount was settled to Rs.1200/- and actually payment of Rs.700/- was made to accused no.1 and then truck came to be released but driving licence was retained by accused no.1 and he agreed to return it on payment of remaining bribe amount of Rs.500/- and thereafter complaint came to be lodged with A.C.B. Jalna. None of these witnesses claimed that at the time of settlement of this bribe amount accused no.2 was present. 15. The above referred evidence is clear that when accused no.1 detained the truck and made demand of bribe amount and settlement to pay bribe of Rs.1200/- was arrived at, accused no.2 was not present. On 15/1/91 out of agreed amount, amount of Rs.700/- has been paid to accused no.1 and remaining amount of Rs.500/- was agreed to be paid in the premises of court building at Jalna and then accused returned the keys and truck was released. That time also accused no.2 was not present with accused no.1. 16. The next question remains when accused no.2 came on the scene. According to complainant Sikandar, he lodged complaint Exh.26 on which Dy.S.P.Kavle arranged the trap. It was decided that bribe amount of Rs.500/- should be paid to the accused in presence of panch witness p.w.9 Sk.Isamuddin. Tainted notes were given with complainant p.w.1. Thereafter, p.w.1 Sikandar and panch witness p.w.9 Sk.Ismamuddin had gone to the court premises to pay bribe amount to accused no.1. Both complainant Sikandar and panch witness p.w.9 Isamuddin approached the accused in the old Court building premises. Their version is consistent that complainant made request to accused no.1 to accompany them to the hotel for taking tea. That time accused no.2 was with accused no.1. Before they reached the hotel, there was no conversation in relation to payment of bribe between complainant and accused no.1. According to complainant, he placed order for tea in Karim hotel. Accused no.2 was with them. That time accused no.2 was with accused no.1. Before they reached the hotel, there was no conversation in relation to payment of bribe between complainant and accused no.1. According to complainant, he placed order for tea in Karim hotel. Accused no.2 was with them. Then accused no.1 made enquiry with complainant whether he had brought money, complainant disclosed that he had brought money, then accused no.1 asked complainant to give money to accused no.2 alleging that accused no.2 is his man, then complainant took out tainted notes and accused accepted the same and kept in his pocket. Then accused no.1 returned the licence. Panch witness Isamuddin who was present at the time of this incident also confirmed that accused no.1 met them in the old Court building, complainant told him that he is late, then on complainant’s request they had gone to hotel with accused no.2 and while they were taking tea, accused no.1 asked complainant whether he had brought money and accused asked the complainant to give money to accused no.2 and complainant offered tainted notes and accused no.2 accepted the same and kept it in his pocket. From this evidence, it is clear that accused no.2 was with accused no.1 when complainant and panch met them. Their evidence is clear that therewas no talk between complainant and accused no.1 about detention and release of truck and the settlement of payment of bribe which took place on earlier day. In presence of accused no.2 only conversation between complainant and accused no.1 was as to whether complainant had brought money and complainant disclosed that he brought the money and then accused asked the complainant to pay that amount to accused no.2 and then complainant took out the tainted notes and handed over to accused no.2. Their evidence as well as evidence of p.w.14 A.P.I. Shinde and Dy.S.P.Kavle make it clear that said amount is recovered and seized from accused no.2. Accused no.2 has not denied the acceptance of that amount. However, question remains whether the act of accused no.2 accepting the amount on the say of accused no.1 can be said to be an intentional act to assist accused no.1 to commit the offence. As stated above, there was no conversation between complainant and accused that amount was being paid by way of bribery. However, question remains whether the act of accused no.2 accepting the amount on the say of accused no.1 can be said to be an intentional act to assist accused no.1 to commit the offence. As stated above, there was no conversation between complainant and accused that amount was being paid by way of bribery. There was no talk about release of truck or return of licence on payment of that amount. So only fact established is that accused no.1 asked accused no.2 to accept the amount and accused no.2 accepted it. Learned Special Judge in his judgment in paragraph no.33 considered evidence as against the accused no.2. The relevant observations need to be quoted here by which the Special Judge held that accused no.2 intentionally assisted accused no.1 and abetted the offence. " It is true that in the matter before us, accused no.2 Dongare was not present at Moujpuri when the bribe was settled and amount of Rs.700/- was paid to accused no.1 and he came in picture only at the time of trap at Jalna. ............... In the instant matter the accused no.1 never avoided the acceptance of bribe. On the contrary, on both occasions he asked the complainant and his brother whether the amount was brought by them. On second occasion at Jalna accused no.2 was already with accused no.1 when complainant and panch witness Isamuddin met them prior to the trap. Not only that but the evidence of the witnesses, complainant and panch witness Isamuddin on the point of trap shows that the accused no.2 had listened conversation between the complainant and accused no.1 regarding demand of bribe. Not only that but the evidence also shows that he gave company to accused Jadhav in the hotel of Abdul Karim where the accused were raided. It is significant to note that the complainant as well as panch witness Isamuddin stated in their evidence that in the hotel the accused no.1 told that the accused no.2 was his man and asked complainant to give the amount of Rs.500/- to accused no.2. This undoubtedly shows the involvement of the accused no.2 in the alleged incident of demand and acceptance of bribe. The accused no.2 had definitely assisted and helped the accused no.1 in obtaining bribe from the complainant." 17. These observations of the learned Special Judge are not justified and not appear to be correct. This undoubtedly shows the involvement of the accused no.2 in the alleged incident of demand and acceptance of bribe. The accused no.2 had definitely assisted and helped the accused no.1 in obtaining bribe from the complainant." 17. These observations of the learned Special Judge are not justified and not appear to be correct. The learned Judge observed that accused no.2 had listened conversation between complainant and accused no.1 regarding demand of bribe. None of the witnesses either complainant or panch witness have stated that there was any conversation between complainant and accused no.1 about payment of bribe. Their statement is to the effect that accused no.1 asked complainant whether he had brought money and he told that he had brought. This conversation by itself cannot be treated to be a conversation that it was in relation to a bribe. On the ground that accused no.2 who was home guard was with accused no.1 directly it cannot be inferred that accused no.1 disclosed him that he had agreed to accept bribe amount from the complainant on earlier date. Only material came on record is that on the say of accused no.1 accused no.2 accepted the amount offered by complainant. He was not knowing anything about the incident occurred on earlier date. That time he was not even present. When part payment of bribe amount of Rs.700/- was made, he was not present. At the time of trap only he was found accompanied accused no.1 and on his say, payment is made. Mere acceptance without knowledge of pre trap demand of bribe by itself cannot be said to be an intentional assistance offered by accused no.2 to accused no.1 for commission of offence. On behalf of accused no.2 in support that offence of abetment cannot be said to be proved by mere acceptance of amount reliance has been placed on the decision of A.P. High Court in the case of Mohd.Jaffrullah Khan and another V/s State Inspector of Police, A.C.B. Range, Hyderabad reported in 2000 (3) Crimes 555. The evidence in that case disclosed that when complainant approached accused no.1, accused no.1 directed the complainant to hand over the amount to appellant-accused no.2. Accused no.2 had no knowledge of bribe amount. There was no evidence that appellant had knowledge of transaction between complainant and accused no.1. The evidence in that case disclosed that when complainant approached accused no.1, accused no.1 directed the complainant to hand over the amount to appellant-accused no.2. Accused no.2 had no knowledge of bribe amount. There was no evidence that appellant had knowledge of transaction between complainant and accused no.1. Because of these facts, Andhra Pradesh High Court held that conviction of appellant accused no.2 for the offence under Section 12 is not sustainable. 18. In the case of Trilok Chand Jain V/s State of Delhi reported in AIR 1977 S.C.666, the Apex Court held that for the offence of abetment intention to aid commission of crime is the gist of offence for abetment by aid. The accused in that case came to be acquitted on the ground that intention to aid the commission of crime by other accused on the part of appellant was lacking, so accused cannot be held guilty for the offence of abetment of an offence. In the said case also appellant before the Apex Court was alleged to have accepted illegal gratification on behalf of another accused. So the ratio in these cases make it clear that to attract Section 12 of the Act, it must be established that accused intentionally assisted accused no.1 to commit offence. The evidence referred to above shows that accused was not present when settlement to pay bribe to accused no.1 by the complainant took place. There is absolutely no evidence to show any conspiracy between accused nos.1 and 2 to accept the bribe. On the contrary there was no conversation between complainant and accused no.1 to pay amount by way of bribe for showing any favour or disfavour. On the conversation between complainant and accused no.1 whether complainant had brought money and complainant disclosing that he had brought money, it cannot be gathered that accused no.2 got knowledge that complainant was paying the amount by way of bribe, so the acceptance of amount by accused no.2 on the say of accused no.1 by itself cannot be said to be an intentional act to assist accused no.1 in committing the offence of acceptance of bribe. As such, it cannot be said that accused no.2 abetted the commission of offence, so the order of conviction and sentence recorded against accused no.2 for the offence under Section 12 ofthe Act is not justified and same needs to be set aside by allowing appeal or appellant-accused no.2. 19. Let us now consider the evidence as against appellant accused no.1 in Criminal Appeal No.314/95. The evidence of p.w.1 Sikandar and p.w.7 Akbar as well as evidence of p.w.8 driver Ishaq and evidence of p.w. 10 Hazare established beyond doubt that p.w.7 Akbar and p.w.1 Sikandar had purchased Babul trees from Hazare. P.W.7 Akbar had gone to Bhatepuri to transport the fire wood purchased from Hazare by the truck of p.w.8. They loaded wood in the truck in the night of 14/2/91 and while they were coming towards Jalna, accused accosted their truck and asked for production of licence for transporting of fire wood and there being no such licence, the truck was detained in the police station. Their evidence also as discussed to above established beyond doubt that for releasing the said truck accused made demand ofbribe initially for Rs.2000/- and lateron for Rs.1500/- and refused to release the truck. Then p.w.7 Akbar had gone to Jalna and returned back to Moujpuri police station with p.w.1 Sikandar. Then settlement took place and they agreed to pay Rs.1200/- and actually payment of Rs.700/- was made and the truck was released. They agreed to pay remaining amount of Rs.500/- at Jalna as accused no.1 told them that he is going to Jalna Court for some work. Then p.w.1 Sikandar lodged complaint with A.C.B. Jalna. Thereupon, Mr.Kavle, Dy.S.P. arranged a trap. Evidence of p.w.1 Sikandar as well as evidence of panch witness i.e. p.w.9 Isamuddin proved the trap arrangement and giving 5 notes of 100 denomination with complainant after applying anthracene powder with instruction that he should offer the same to the accused on demand and after acceptance of the amount give signal to them. They had gone to old Court building at Jalna. Accused no.1 was there. On the request of complainant he accompanied them to Karim tea house. The conversation took in the hotel as disclosed by p.w.1 Sikandar and p.w.9 panch witness Isamuddin is relevant at this stage. They had gone to old Court building at Jalna. Accused no.1 was there. On the request of complainant he accompanied them to Karim tea house. The conversation took in the hotel as disclosed by p.w.1 Sikandar and p.w.9 panch witness Isamuddin is relevant at this stage. Both of them have stated that accused made enquiry with the complainant Sikandar whether he had brought money and complainant disclosed that he had brought the money, then accused asked to pay the same to accused no.2 and then complainant took out the tainted notes and handed over to accused no.2 who accepted the same for and on behalf of accused no.1. Inspite of lengthy cross examination of these witnesses, no material could be brought on record which will suggest acceptance of this amount for any other purpose than the bribe. This evidence is also corroborated by a fact of recovery of the tainted notes from accused no.2 by p.w.14 A.P.I. Shinde who gave all the details of trap. Advocate appearing on behalf of appellant accused no.1 could not point out any infirmities in the evidence of these witnesses. A material fact came on record when panch witness p.w.9 Isamuddin is cross examined on behalf of the accused. The panch witness p.w.9 Isamuddin has stated that in the hotel accused no.1 Jadhav gave driving licence to complainant Sikandar in presence of the panch witness. Further it has come on record that accused no.1 returned that licence to complainant after payment of money and that licence came to be seized from the complainant when panchanama of this trap came to be recorded. This fact brought on record by defence itself supports the story of prosecution that the truck loaded with the goods was detained by the accused and on payment of part of bribe amount truck was released but licence was retained and it was returned on payment of remaining bribe amount of Rs.500/-. There is also evidence on record to show that the said truck was being detained on the alleged date besides the evidence of complainant and his brother. 20 P.W.4 Amulsingh Gaur was the P.S.I. attached to Moujpuri police station. He has stated that in the month of January 1991 accused was deputed as a Court duty constable. There is also evidence on record to show that the said truck was being detained on the alleged date besides the evidence of complainant and his brother. 20 P.W.4 Amulsingh Gaur was the P.S.I. attached to Moujpuri police station. He has stated that in the month of January 1991 accused was deputed as a Court duty constable. According to him, on 15/2/91 in the morning he had gone to Ambad for bandobast duty but before proceeding to Ambad he had gone to police station. One Kulkarni was station diary incharge. He gave intimation to Mr.Kulkarni that he is proceeding to Ambad and then he had gone to Ambad. Article no.3 seized from accused no.1 during the trap was shown to this witness and he has stated that it was a tapal book which was in the custody of accused. Many questions were asked to him in the cross examination and it was brought on record that one N.C. was registered by accused Jadhav against the driver of a truck. This fact also supports the story of the prosecution about detention of truck. P.W.6 police constable Gaikwad was attached to Moujpuri police station. According to him, he was on duty in the police station on 14/2/91 from 8 a.m. and when his duty was over he was going to his residence, he had seen one truck loaded with wooden logs parked in the police station premises. Further he stated that when he returned to police station, he had seen the truck. In the cross examination certain questions were asked to him whether he made enquiry about the said truck and he has stated that he has not made any such enquiry. So evidence of these 2 police officers support the story narrated by complainant that his truck loaded with woods was detained by accused no.1. The evidence referred to above shows that to release the said truck accused demanded bribe and out of settlement amount of Rs.1200/-, he has accepted Rs.700/- and received remaining amount at Jalna and during the trap he accepted bribe amount of Rs.500/- and returned the licence of the truck retained by him. So this evidence established beyond doubt that accused made demand of bribe and accepted Rs.700/- at Moujpuri police station itself and accepted remaining amount of Rs.500/- during trap through accused no.2. So this evidence established beyond doubt that accused made demand of bribe and accepted Rs.700/- at Moujpuri police station itself and accepted remaining amount of Rs.500/- during trap through accused no.2. So order of conviction recorded against accused no.1 is perfect and not suffers from any infirmities. 21. Accused no.1 was serving as a police constable. He has demanded and accepted bribe as a motive or reward for showing favour i.e. to release the truck of the complainant. This act of the accused amounts an offence under Section 7 as well as 13(2) of the Act which amounts misconduct also. As accused was serving as police constable, before launching prosecution against him, sanction for prosecution was essential. P.W.3 Krishnalal Bhishnoi, working as Superintendent of Police at Jalna and was appointing authority. His evidence shows that papers of investigation were forwarded to him. He has examined the same and satisfied that there is material to accord sanction for prosecution. Accordingly he issued sanction order Exh.33. He was cross examined and attempt was made to show that he has not applied his mind to the facts of the case. It was brought on record that the accused in capacity as a constable has right to make demand of driving licence of truck driver and he also can take the driver before his superior police officer. There cannot be dispute about these facts which are within the duties of the accused. However, no material could be brought on record in the cross examination of this witness which will invalidate the sanction. No submission has been made on behalf of appellant accused no.1 challenging this sanction order also. 22. The evidence led at the trial proved the demand and acceptance of bribe by accused no.1. The order of conviction recorded against accused no.1 for both the offences was found perfect and not suffers from any infirmities. So there is no merit in the appeal preferred by accused no.1 but his Criminal Appeal No.314/95 needs to be dismissed by confirming the order of conviction and sentence recorded against him. 23 On behalf of appellant accused no.1 alternative submission is made to modify the order of sentence. This submission has been made solely on the ground that the incident took place in 1991 and 15 years period is lapsed. Lapse of time cannot be a ground to show leniency and reduce the sentence. 23 On behalf of appellant accused no.1 alternative submission is made to modify the order of sentence. This submission has been made solely on the ground that the incident took place in 1991 and 15 years period is lapsed. Lapse of time cannot be a ground to show leniency and reduce the sentence. The offence committed by appellant accused no.1 is against the society. Such offender does not deserve for any leniency. So request for modification of sentence cannot be entertained. 24. In the result, Criminal Appeal No.313/95 preferred by appellant original accused no.2 is allowed. The order of conviction for the offence under Section 12 of the Prevention of Corruption Act 1988 as well as sentence of R.I. for 6 months and fine of Rs.100/- recorded by Special Judge, Jalna against original accused no.2 is set aside. Accused no.2 is acquitted of the offence punishable under Section 12 of the Prevention of Corruption Act 1988. Fine amount if any paid by the original accused no.2 be refunded to him. Bail bonds of original accused no.2 shall stand cancelled. 25. Criminal Appeal No.314/95 preferred by appellant original accused no.1 is dismissed by confirming the conviction and sentence under Sections 7, 13(1)(d) r.w. 13(2) of the Prevention of Corruption Act 1988 in Special Case No.19/91 recorded by Special Judge, Jalna. The appellant-original accused no.1 is directed to surrender before the learned Special Judge, Jalna within two weeks from the date of receipt of this order for undergoing the sentence. On failure of appellant-original accused no.1 to surrender, the Special Judge, Jalna to take action under Section 390 of Cr.P.C. and secure the presence of appellant original accused no.1 and commit him to jail for undergoing the sentence. Order accordingly