Honble MATHUR, J.–By the judgment impugned dated 25.11.2003, learned Sessions Judge/Special Judge, (Prevention of Corruption Act Cases), Jodhpur, for the offences punishable under Sections 7 and 13(1)(d)(ii) of the Prevention of Corruption Act, 1988 (hereinafter referred to as "the Act of 1988"), convicted appellant Kashi Ram and sentenced him as follows:- Offence u/Sec. Sentenced to Undergo Fine In default to pay fine 7 P.C.Act 5 yrs. R.I. 25,000/- 6 months S.I. 13(1)(d)(ii) P.C. Act 5 yrs. R.I. 25,000/- 6 months S.I. (2). By the same judgment appellant Hodal Singh too was convicted for the offence punishable under Section 12 of the Act of 1988 and was sentenced to undergo five years rigorous imprisonment with fine of Rs.25,000/- and in default to further undergo six months simple imprisonment, hence these appeals under Section 374 Cr.P.C. are preferred. (3). The case of the prosecution was that on receiving a source information by Shri Chatur Sen, Additional Superintendent of Police (Anti Corruption Bureau), Jodhpur, on 17.2.2000 at about 09.00 A.M. relating to huge collection of money illegally by Shri Kashi Ram, the then Superintending Engineer, Public Works Department, Pali, a search was started at his residence at 02.40 P.M. and during that search a sum of Rs.1,00,000/- was recovered. As per the prosecution, the amount aforesaid was received by Shri Kashi Ram as an illegal gratification by misusing his office, thus, he committed offences under Sections 7 and 13(1)(d)(ii) of the Act of 1988 and Shri Hodal Singh, a contractor gave money aforesaid to Shri Kashi Ram with an motive to seek official favour, thus, an offence as per Section 12 of the Act of 1988 was also commissioned. (4). (4). Learned trial court after considering the police record and material produced with that, framed the charges against the appellants as follows:- Appellant Hodal Singh : ^^vki uskuy gkbZos ikyh ij fe-eh- 99 ls 110 dk foks"k ejEer dk dk;Z djok jgs Fks ftldh xq.koRrk Bhd u gksus ls v/kh{k.k vfHk;Urk lk-fu-fo- ikyh }kjk dk;Z cUn djok fn;k x;k] ftl dk;Z dks iqu% pkyw djkus ds fy, fnukad 17-2-2000 dks vkius v/kh{k.k vfHk;Urk dkkhjke Hkknw tks yksd lsod Fkk dks ,d yk[k :i;s dh jkfk crkSj fjor ysus ds fy;s nq"izsfjr fd;k vkSj mDr 1]00]000@& dh fjor jkfk dks vkids }kjk nq"izsfjr djus ij Jh dkkhjke Hkknw }kjk izkIr dj fy;k tks mlds ljdkjh vkokl ls cjken gqbZ vkidk ;g d`R; /kkjk 12] Hk-fu-v- 1988 ds rgr n.Muh; gS] tks esjs izlaKku esa gSA** Appellant Kashi Ram : ^^vkius fnukad 17-2-2000 dks v/kh{k.k vfHk;Urk lk-fu-fo- ikyh ds in ij yksd lsod dh gSfl;r ls dk;Z djrs gq, uskuy gkbZ os ikyh ij fd-eh- 99 ls 110 ds dk;Z dh xq.koRrk Bhd ugha gksus ls dk;Z cUn djok fn;k Fkk ftldks iqu% pkyw djkus ds gsrq ;k buke ds :i esa Bsdsnkj gksMyflag }kjk nq"izsfjr djus ij mlls crkSj fjor ds ,d yk[k :i;s izkIr fd;s bl izdkj vkius /kkjk 7] Hk-fu-v- 1988 ds rgr n.Muh; vijk/k fd;k] tks esjs izlaKku esa gSA** ^^vkius fnukad 17-2-2000 dks v/kh{k.k vfHk;Urk] lk-fu-fo- ikyh ds in ij yksd lsod dh gSfl;r ls dk;Z djrs gq, uskuy gkbZ os ij fdeh 99 ls 110 ds dk;Z dh xq.koRrk Bhd ugha gksus ds dkj.k dk;Z cUn djok fn;k Fkk ftldks iqu% pkyw djkus ds fy, gsrq ;k buke ds :i esa gksMyflag ls Hkz"V ,oa voS/k rjhds ls vius in dk nq:i;ksx djrs gq, ,d yk[k :i;s dh fjor jkfk izkIr dj voS/k :i ls vkfFkZd ykHk izkIr dj vijkf/kd nqjkpj.k fd;k tks /kkjk 13¼1½¼Mh)¼2½ Hk-fu-v- 1988 ds rgr n.Muh; vijk/k fd;k] tks esjs izlaKku esa gSA** (5). The defence of appellant Shri Kashi Ram as put forward from the inception was that he never demanded and accepted any gratification and the amount recovered must have been planted by Shri Hodal Singh who was keeping enmity with him. Appellant Hodal Singh defended himself by total denial of prosecution story and also the allegation of planting money by him at the residence of Kashi Ram. (6). Appellant Hodal Singh defended himself by total denial of prosecution story and also the allegation of planting money by him at the residence of Kashi Ram. (6). To substantiate prosecution case, PW-1 Murli Manohar Sharma; PW-2 Rajendra Nath Purohit, Executive Engineer, Public Works Department, Pali; PW-3 Ramesh Kumar, Peon, Public Works Department, Pali; PW-4 Shanti Kumar Verma; PW-5 Ram Dayal (Executive Engineer, Public Works Department; PW-6 Tara Chand, Executive Engineer, Public Works Department, NH; PW-7 Ramesh Rathore, Junior Accountant; PW-8 Surendra Chandawat, Videographer; PW-9 Giri Raj Prasad Meena, Bank Officer; PW-10 Narendra Verma, Assistant Engineer, Public Works Department, PW- 11 Ratan Lal, Steno, Superintending Engineer, Public Works Department, NH, Pali; PW-12 Chatur Sen, Additional Superintendent of Police, Anti Corruption Department, JD, Jodhpur; PW-13 Parbat Singh, Deputy Superintendent of Police, Anti Corruption Bureau, Jodhpur; and PW-14 Shiv Ratan Bohra, Deputy Superintendent of Police, Anti Corruption Bureau, Pali were examined. (7). In defence Shri Jaswant Mal (DW-1), Assistant Engineer, Public Works Department, Pali was produced by Shri Kashi Ram and Shri Jugal Kishore (DW-2) was produced by accused appellant Hodal Singh. The prosecution also produced 17 documents in evidence and those were exhibited as follows:- Ex.P/1 : Checking memo 17.2.2000 at 2.40 pm Ex.P/2 : Letter of Superintending Engineer to Executive Engineer, Public Works Department, NH - 14.2.2000 Ex.P/3 : Prosecution sanction Ex.P/4 : Appointment & posting order Ex.P/5 : Cheque - Bank of Maharashtra Ex.P/6 : Bank account Hodal Singh Ex.P/7 : 161 Statement Giri Raj Prasad Meena Ex.P/8 : Letter Bank of Anti Corruption Bureau Jodhpur Ex.P/9 : Formal FIR Ex.P/10 : Formal FIR Ex.P/11 : Letter Anti Corruption Bureau to Bank Ex.P/12 to Ex.P/15 : Appointment Ex.P/16 : Malkhana Register Ex.P/17 : Posting Order Superintending Engineer In defence following documents were exhibited:- Ex.D/1 : 161 Statement Tara Chandawat Ex.D/2 : 161 Statement Ramesh Rathore Ex.D/3 : Test Report BMM Steal Bars Lilan Bridge (DW-1) Ex.D/4 : Test Report - by Assistant Engineer, PW-10 Narendra Verma Ex.D/5 : Extra Item Perterma Ex.D/6 : Order Chief Engineer 31.3.99 Ex.D/7 : 161 Statement Narendra Verma Ex.D/8 : 161 Statement Ratan Lal - Steno Ex.D/8 : Graduation report 15.2.2000 DW-1 Jaswant Mal Ex.D/9 to Ex.D/35 : The receipts relating to loading of goods Ex.D/36 : Departmental Enquiry Report 29.2.2000 (8). PW-1 Shri Murli Manohar Sharma who accompanied the search team as a "motbir", stated on oath that on 17.2.2000 while holding the office of Assistant Commercial Taxes Officer, Jodhpur, he was instructed by Deputy Commissioner to report at Anti Corruption Bureau Office where he reached at about 10- 11 A.M. and met Shri Chatur Sen, Additional Superintendent of Police and Shri Parbat Singh, Deputy Superintendent of Police. Shri Ramesh Rathore, Junior Accountant, was also present there. As per instructions of Additional Superintendent of Police, PW-1 accompanied the search team. A videographer was also accompanying them. First, they went to Public Works Department Rest House, Pali and then to residence of Shri Kashi Ram who was then available at his house. The Additional Superintendent of Police, introduced himself to Kashi Ram and demanded for search. Shri Kashi Ram insisted to call atleast two persons from his office, those were called and in their presence search was made. Before commencing search Kashi Ram said to Additional Superintendent of Police that he is having with him no money except part of his monthly salary i.e. of about Rs.10-12,000/-. During search 10 bundles of currency notes were found kept below the pillow of a double bed installed in a room. Those bundles of currency notes were carrying seal of the "Bank of Maharashtra". A sum of Rs.12,200/- was also found in an almirah and that was said as a part of his salary by Kashi Ram. For 10 bundles of currency notes amounting a sum of Rs.1,00,000/-, Shri Kashi Ram said to the Additional Superintendent of Police that little earlier a person named Hodal Singh came to him and left the place after having conversation for about half an hour and the amount aforesaid might have been planted by him. In cross examination PW-1 Shri Murli Manohar Sharma stated that the search team proceeded for Pali from Jodhpur at about 11-12 hours and reached at Dak Bungalow, Pali at about 02.00 P.M. He also stated that the room having double bed was adjacent to the drawing room. (9). In his statements, PW-2 Shri Rajendra Nath Purohit stated that at the relevant time he was posted as Executive Engineer (NH Division), Pali and Kashi Ram was holding the post of Superintending Engineer. The contractor of repairing work relating to National High Way-14 from kms.94-110 was M/s Narain Singh Gulab Singh of Himmatnagar, Gujarat. (9). In his statements, PW-2 Shri Rajendra Nath Purohit stated that at the relevant time he was posted as Executive Engineer (NH Division), Pali and Kashi Ram was holding the post of Superintending Engineer. The contractor of repairing work relating to National High Way-14 from kms.94-110 was M/s Narain Singh Gulab Singh of Himmatnagar, Gujarat. Hodal Singh was running hot mix plant and was also supplying materials to firm M/s Narain Singh Gulab Singh. The material used by the firm was not as per specifications resulting in side breakage of roads, thus, at his request Shri Kashi Ram inspected the site and gave instructions to the contractor firm to complete the work with the quality as per the specifications. He also stated that Shri Kashi Ram was a hard working and honest officer with good administrative qualities and the contractors were keeping annoyance with him looking to his tough attitude relating to quality of work. (10). Shri Ramesh Kumar PW-3, a Class-IV employee in office of the Executive Engineer, Public Works Department, Pali, stated that on 17.2.2000, on calling, he went to the residence of Shri Kashi Ram and served two cups of coffee to Shri Kashi Ram and Hodal Singh and left for the office. (11). Shri Tara Chand, PW-6, an Executive Engineer in Public Works Department, stated that on calling he went to the residence of Shri Kashi Ram where in his presence search was made by the party led by Shri Chatur Sen and 10 bundles of currency notes were recovered. The room wherefrom money was recovered is adjacent to the drawing room and the double bed was lying attached to the common wall of the drawing room and bed room. As per statements of PW-6, Kashi Ram was an honest and hard working officer, the contractors were not happy with him as he was always making insistence to maintain high quality of work. (12). PW-7 Ramesh Rathore, Junior Accountant, who also accompanied the search team, in general repeated the facts as stated by PW-1 Shri Murli Manohar Sharma, however, he also said that the double bed wherefrom the bundles of currency notes were recovered was lying just attached to the common wall of the drawing room and bed room and any one could have planted money there within a period of a minute. (13). (13). PW-8 Surendra Chandawat is the person who accompanied the search team and videographed the entire process of search. He stated inter alia that while on the way to Pali Shri Parbat Singh, Deputy Superintendent of Police had talk with the persons who were sitting in a car that crossed them at Rohat in District Pali. He also stated that the search team reached to Pali at about 1200 hours and search was made at 02.40 P.M. (14). PW-9 Shri Giri Raj Prasad Meena, Manager of Bank of Maharashtra, Jodhpur Branch, stated that on 17.2.2000 a sum of Rs.3,50,000/- was drawn from the account of Shri Hodal Singh. He also identified the bundles of currency notes recovered from the residence of Shri Kashi Ram as part of money drawn from his bank, however, he failed to point out any person to whom the money aforesaid was physically delivered by the bank. This witness was declared hostile. (15). PW-10 Shri Narendra Verma, an Assistant Engineer with Public Works Department, stated that on 17.2.2000 Hodal Singh came to the office carrying black bag in hands and then proceeded towards the residence of Kashi Ram. This witness also stated that Kashi Ram was an efficient and honest officer. Most of the contractors were not happy with his tough attitude. (16). PW-11 Shri Ratan Lal, a Steno in the office of the Superintending Engineer, Public Works Department, Pali, stated that on 17.2.2000 at about 01.00 to half past 01.00 P.M. Hodal Singh came to him carrying black bag in hand and asked about Kashi Ram. Shri Kashi Ram being on leave, Hodal Singh sought appointment from him and then proceeded towards the residence of Kashi Ram. He further stated that after about an hour on calling he went to the residence of Kashi Ram where the search team was present. He also stated that Kashi Ram at that time told to the search team that he was not having anything objectionable at his residence and if, any such thing is found then that would have been planted by Hodal Singh. This witness also said that Kashi Ram was a hard working officer and also quite tough person for contractors, those were not maintaining required quality. (17). This witness also said that Kashi Ram was a hard working officer and also quite tough person for contractors, those were not maintaining required quality. (17). The leader of the search team Shri Chatur Sen was examined by the court as PW-12 who stated that he received a source information regarding collection of huge money by Kashi Ram. On basis of that information the search team including motbirs Ramesh, Murli Manohar and videographer Surendra Chandawat proceeded for Pali and reached there at about 12 noon. (17). The leader of the search team Shri Chatur Sen was examined by the court as PW-12 who stated that he received a source information regarding collection of huge money by Kashi Ram. On basis of that information the search team including motbirs Ramesh, Murli Manohar and videographer Surendra Chandawat proceeded for Pali and reached there at about 12 noon. Certain material parts of the statements given by the witness is quoted below:- ^^dkkhjke ds edku ij ge djhc ikSus 3 cts ds vkl ikl igqaps FksA fctyh ugha gksus ds dkj.k ls ?kaVh ugha cth] ftl ij dkkhjke dks vkokt nh x;h] ftl ij dkkhjke dqrkZ iktkek igus gq, edku ds vUnj ls vk;s o njoktk [kksykA eSaus viuk ifjp; dkkhjke dks fn;k rFkk vU; Vsªi ny dk Hkh ifjp; nsdj muls Hkh ifjp; iwNkA rFkk esjs vkus dk vkk; Hkh dkkhjke dks crk;kA vkSj mudks dgk fd eqÖks lw= lwpuk feyh gS fd vkius voS/k :i ls jkfk yksxksa ls izkIr dj vius edku esa j[k j[kh gS] ftlds ckjs esa eSa rykkh ysus ds fy, vk;k gwaA bl ij dkkhjke us rykkh fy[kkus ls euk djrs gq, dgk fd esjs dk;kZy; ds vf/kdkfj;ksa ds vkus ij gh eSa vkidks esjs edku dh rykkh ysus nwaxkA ftl ij ih MCY;w Mh dk;kZy; ls rkjkpan vf/kkk"kh vfHk;ark o jruyky LVsuksa dks cqyk;k x;kA muds gkftj vkus ij geus dkkhjke ds edku dh rykkh yhA gekjh rykkh nsus ds ckn] kq: dh x;hA dkkhjke us eqÖks ;g crk;k fd esjs edku esa esjs osru ds 10-12 gtkj :Ik;s ds vfrfjDr vkSj dksbZ jkfk ugha gSA cSBd ds dejs dh rykkh o cjkens dh rykkh Hkh yh x;h] tgka dksbZ vkifr tud oLrq ugha feyhA blh njE;ku dkkhjke us ;g dgk fd ^^vHkh FkksM+h nsj igys gksMyflag Bsdsnkj b/kj vk;k Fkk] rFkk djhc vk/kk ikSu ?kaVk og ;gka :dk Fkk rFkk eSa ?kj esa vdsyk gh ekStwn FkkA rFkk gksMy flag ds }kjk tks dk;Z djok;k tk jgk Fkk] og dk;Z ?kfV;k Lrj dk gksus ls eSaus 2-3 fnu igys can djok fn;k Fkk] ml dk;Z dks okfil kq: djus dh ckr djus ds fy, og esjs ikl vk;k FkkA vxj dksbZ lkeku ;k pht gS; rks og gksMy flag gh j[k dj x;k gksxkA** dkkhjke us ;g Hkh ckr dgk Fkk fd ^^gksMy flag dks pk; fiykus ds fy, eSa pijklh dks cqykus ds fy, ckgj Hkh x;k Fkk] ml nkSjku mlus dksbZ pht j[k nh gksxh] rks eqÖks /;ku ugha gSA** geus dkkhjke ds edku ds cSM:e dh rykkh Hkh yhA rykkh ds nkSjku ekSrchj jesk jkBkSM+ dks Mcy cSM ij j[ks rfd;s ds uhps ,d caMy feykA ftldks ns[krs gh dkkhjke us dgk fd ;g pht esjh ugha gSA ml iSdsV dks [kksyk x;k rks 100-100 ds uksVksa dh 10 xfM~M;ka feyh] tks dqy 1 yk[k :i;s FksA bu uksVksa ij cSad vkQ egkjk"Vª tks/kiqj dh fLyi o rkjh[k vafdr dh gqbZ FkhA lkjh xfM~M;k khYM FkhA** ^^;g lgh gS fd eqyfte us ;g Hkh crk;k Fkk fd vHkh FkksM+h nsj igys gksMyflag Bsdsnkj esjs ;gka vk;k Fkk] FkksM+k :d dj okfil x;k gSa] mlus dksbZ pht ;k :i;s j[ks gks rks eqÖks tkudkjh ugha gSaA ;g lgh gS fd edku esa izosk gksrs le; cjkenk gSa] ml cjkensa dh o ml ls vkxs cus Mªkbax:e dh rykkh yh x;h] Mªkbax:e esa dksbZ vkifRrtud :i;s ;k vU; dksbZ pht cjken ugha gqbZA ;g lgh gS fd Mªkbax :i ds vUnj lksQs iM+s gq, Fks] chp esa lsaVj Vscy j[kh Fkh] ml Vscy ij pk; ds di Fks ;k ugha] /;ku ugha gSA ;g lgh gS fd QnZ cjkenxh iznkZ ih 1 esa lsaVj Vscy ij di j[ks gq, gksus dk mYys[k ugha gSaA ;g lgh gS fd cSBd ds dejs esa nhokj ds lgkjs ,d lksQk yxk gqvk Fkk] ml lksQs ds ikl gh cSM:e esa tkus dk njoktk FkkA ;g lgh gS fd njokts ds ikl gh cSM:e esa cSM yxk gqvk Fkk] ftl ij ls :i;s cjken gq, FksA** ^^;g lgh gS fd eqyfte }kjk fdlh ls fjor jkfk dh ekax djuk ;k fnukad 17-2-2000 ;k mlls iwoZ fdlh O;fDr foks"k ls izkIr djuk ;k izkIr djsxk] ds ckcr dksbZ lwpuk ugha FkhA QnZ [kkuk rykkh iznkZ ih 1 o iqfyl c;ku iznkZ ih 9 esa ^^vkius voS/k :e ls jkfk yksxksa ls izkIr dj vius edku esa j[k j[kh gSA** lqukA ;g fy[kk gqvk ugha gSA blesa ^^yksxksa ls** kCn fy[kk gqvk ugha gSA ;g lgh gS fd i= iznkZ ih 2 esa dk;Z can djokus dk mYys[k ugha gS] dk;Z esa lq/kkj djus ckcr fy[kk x;k gSA vt[kqn dgk fd QnZ ih 1 dks eqyfte us i< dj gLrk{kj fd;s gSA ;g xyr gS fd eqyfte QnZ ls lger ugha FkkA QnZ iznkZ ih 1 ds ist la- 2 ij Hkkx D;w ls vkj eqyfte ds }kjk ^^eSa lger ugha gwa** kCn fy[kk gqvk gSaA ;g lgh gS fd eqyfte }kjk cjkenkqnk ,d yk[k :i;s dh jkfk fdlh ls ekax djuk o izkIr djus ds lk{; ugha gSa ;g lgh gS fd geus eqyfte Hkknw ds ikyh fLFkr edku dh rykkh ds ckn mlds eqwy fuokl xaxkuxj ,oa mlds d`f"k QkeZ ij fLFkr <k.kh dh rykkh yh Fkh] mlesa Hkh dksbZ vkifRr tud oLrq izkIr ugha gqbZ FkhA** (18). Shri Parbat Singh PW-13, Deputy Superintendent of Police also, in general narrated the incident i.e. quite akin to the details given by PW-12 Shri Chatur Sen. He also stated that the Anti Corruption Bureau was not having any information about demand from any person by Kashi Ram. He fortified the fact that nothing objectionable was found from the residence of Kashi Ram at his native place. (19). PW-14 Shiv Ratan Bohra, Deputy Superintendent of Police, Anti Corruption Bureau, Pali obtained sanction from the State Government to prosecute Kashi Ram. He also stated that during investigation evidence came on record that reputation of Shri Kashi Ram was of an honest, hard working and non-compromising officer. He also said that no evidence of any demand of bribe or illegal gratification was available against Kashi Ram. (20). Accused Kashi Ram as well as Hodal Singh were examined and also questioned as per the provisions of Section 313 Cr.P.C. Accused Kashi Ram while denying the prosecution story put forward the defence that he never demanded, accepted or obtained any bribe or illegal gratification from Hodal Singh. The amount recovered from his house would have been planted by Hodal Singh as he and number of other contractors were keeping enmity with him looking to his tough attitude regarding their working. On questioning accused Hodal Singh also denied the prosecution story. (21). Defence witness Shri Jaswant Mal (DW-1), while pointing out that no order was passed by Kashi Ram stopping working of Hodal Singh, also stated that accused Kashi Ram was a hard working and disciplined officer. He was always insisting to maintain high quality of work, therefore, most of the contractors were not happy with him. (22). DW-2 Jugal Kishore stated that he drew the sum of Rs.3,50,000/- from the bank for distribution of money to the labourers and also to use for certain other business purposes. (23). Learned trial Judge, after considering the evidence available, held that the evidence available and circumstances are adequate to presume it well that on being abated by accused Hodal Singh due to stoppage of work at NH-14 from kms.99-110 accused Kashi Ram accepted a sum of Rs.1,00,000/- as bribe and that amounts to commission of an offence under Section 7 of the Act of 1988. Learned trial court also reached at the conclusion that by accepting illegal gratification for the sum of Rs.1,00,000/- with a motive to start work on NH-14 from kms.99-110 accused Kashi Ram committed an offence described under Section 13(1)(d) (ii) of the Act of 1988. Accused Hodal Singh was found liable for commission of offence under Section 12 of the Act of 1988. (24). To challenge the conviction, the prime contention of Shri J.S.Choudhary, learned counsel for the appellant, is that no adequate evidence is available on record to establish that appellant Kashi Ram in any manner demanded, accepted or obtained money from any person as bribe or illegal gratification, thus, the presumption drawn by attracting the provisions of Section 20 of the Act of 1988 is bad. It is asserted by counsel for the appellant that mere recovery of money was not sufficient to prove commission of an offence under Section 7 of the Act of 1988. The trial court should have established beyond doubt the demand, acceptance or obtaining of bribe/illegal gratification to draw presumption as per Section 20 of the Act of 1988. The conviction under Section 13(1)(d)(ii) of the Act of 1988 is assailed on the count that no presumption under Section 20 could have been drawn for the offence aforesaid. (25). On the other hand learned Public Prosecutor, while supporting the judgment of the trial court, stated that the money drawn from the Bank of Maharashtra on 17.2.2000 was admittedly recovered from the residence of accused, thus, he is having no escape from the offences found proved. (26). Appellant Kashi Ram was charged for commission of offences as per Sections 7 and 13(1)(d) (ii) of the Act of 1988. The ingredients for the offence under Section 7 as settled by Honble Supreme Court in various cases are; (1) that the accused should have been a public servant; (2) the accused must be shown to have obtained or attempted to obtain from any person gratification other than the legal gratification; and (3) the gratification should be as a motive or reward for doing or for bearing to exercise of his official function, favour or disfavour to any person. (27). It is immaterial whether the amount is received before or after the favour is done. (28). (27). It is immaterial whether the amount is received before or after the favour is done. (28). Section 7 of the Act of 1988 does not require that the public servant must; in fact, be in a position to official act, favour or service at the time of demand or receipt of gratification. (29). To constitute an offence under this section, it is enough if - the public servant who accepts the gratification takes it by inducing a belief that he would render assistance to the giver and the giver gives the gratification under that belief. (30). Section 20 of the Act of 1988 provides the presumption of law as per which it is obligatory for the court to make certain presumptions against the accused. When it is proved that the accused who is charged with an offence punishable under Sections 7, 11 or clause (a) or (b) of sub-section (1) of Section 13 has received any gratification other than the legal remuneration or any valuable thing, the court shall presume under Section 20(1) that the gratification or the valuable thing was received with a motive or is reward as is mentioned in Section 7 or for an inadequate consideration. The prosecution has to prove the receipt of gratification or the valuable thing by the accused and when receipt of such gratification or valuable thing is admitted by the accused or otherwise proved, the prosecution is not required to prove affirmatively the motive or reward or the valuable thing was received without adequate consideration. If the accused want to contend that he had not accepted the gratification with motive or as a reward or the valuable thing for inadequate consideration, it would be for him to establish. The burden of proof lying upon the accused will be satisfied if he establishes his case by a preponderance of probability and not by test of proof beyond a reasonable doubt. Under subsection( 2) of Section 20, a similar presumption is to be raised against the accused charged under Section 12 or under Section 14(b) when it is proved that any gratification or valuable thing has been given or attempted to be given to a public servant. (31). In the instant matter on basis of evidence available it is to be seen as to whether the prosecution successfully established acceptance or obtaining gratification by accused Kashi Ram. (31). In the instant matter on basis of evidence available it is to be seen as to whether the prosecution successfully established acceptance or obtaining gratification by accused Kashi Ram. It is also required to be examined as to whether accused Kashi Ram successfully established his case by a preponderance of a probability relating to planting money by Hodal Singh. It is not in dispute that a sum of Rs.1,00,000/- having the seal of Bank of Maharashtra was recovered from the residence of accused Kashi Ram. The plea of accused Kashi Ram at first instance even before search commenced was that nothing objectionable was available at his residence and if anything is found then that should have been planted by Hodal Singh, a contractor. It also came in evidence that Hodal Singh came to the residence of accused Kashi Ram and was there for about half an hour. During this period he also had a cup of coffee with accused Kashi Ram. The cups after consuming coffee at the time of search were found in kitchen and those were not kept there by Class-IV employee Shri Ramesh. As per accused Kashi Ram those cups were kept in sink of kitchen by him when Hodal Singh was sitting in drawing room. The fact is also available on record that the bed on which the amount was found was lying just attached to the wall adjacent to the drawing room and any person could have kept money there within a fraction of a minute. Adequate material is also available on record relating to reputation, working style and conduct of accused Kashi Ram. PW-2 Rajendra Nath Purohit, PW-6 Tara Chand, PW-10 Narendra Verma and PW-11 Ratan Lal in most unambiguous terms stated that accused Kashi Ram was known for his honesty, integrity and commitments fro good quality of working. They all have stated that most of the contractors were keeping annoyance with him looking to his tough attitude for maintaining high quality in execution of government projects. The Investigating Officer of the case PW-14 Shri Shiv Ratan Bohra, Deputy Superintendent of Police also stated that during course of investigation he found that general reputation of accused Kashi Ram was of an honest and hard working person. The Investigating Officer of the case PW-14 Shri Shiv Ratan Bohra, Deputy Superintendent of Police also stated that during course of investigation he found that general reputation of accused Kashi Ram was of an honest and hard working person. Learned trial court has drawn presumption for commission of an offence on basis of recovery of a sum of Rs.1,00,000/- drawn from Bank of Maharashtra on 17.2.2000 coupled with the fact that the accused stopped working at NH-14 from kms.99-110. It is true that the amount recovered from residence of accused Kashi Ram was bearing the seal of Bank of Maharashtra and the prosecution witness Giri Raj Prasad Meena identified that amount as part of the amount drawn from his branch on 17.2.2000, but no evidence is available on record relating to demand by Shri Kashi Ram. A valid presumption could have been drawn but in the instant matter the fact of stoppage of working of Hodal Singh has not been proved. As a matter of fact the evidence is available on record that the contract for repairing from kms.99-110 at NH- 14 was with firm Narain Singh Gulab Singh and not with Hodal Singh. Accordingly, the motive for receiving illegal gratification is not proved. (32). It is also pertinent to note that the search team proceeded at about 10.00 A.M. from Jodhpur to Pali i.e. at the distance of about 80 kms. and that team reached Pali at about 12 noon. The search was made at 02.40 P.M. No explanation is given by the prosecution as to what prevented the search team from making search immediately after arriving to Pali. This was required, as plea of accused Kashi Ram is that search team was waiting to get the money planted by Hodal Singh, who could have reached Pali only after drawing money from Bank of Maharashtra at Jodhpur. Pertinent to note here that the Branch Manager, Giri Raj Prasad Meena in his statement stated that the money was drawn from the bank in between 11-12 A.M. Learned trial court has not considered this aspect of the matter while convicting the appellants. (33). Looking to all the evidence available on record, I found that accused Kashi Ram has satisfactorily established the defence by preponderance of probability. The probability of planting the money by Hodal Singh in totality of the facts of the case cannot be denied. (33). Looking to all the evidence available on record, I found that accused Kashi Ram has satisfactorily established the defence by preponderance of probability. The probability of planting the money by Hodal Singh in totality of the facts of the case cannot be denied. Learned trial court has also drawn presumption as per Section 20 of the Act of 1988 while convicting appellant Kashi Ram for commission of an offence under Section 13(1)(d) (ii) of the Act of 1988 though such presumption is available only for the offence under Sections 7 or 11 or for clause (a) or clause (b) of sub-section (1) of Section 13. In the case relating to clause (d) of subsection (1) of Section 13 of the Act of 1988, no presumption as prescribed under Section 20 could have been drawn. The trial court, thus, should have satisfied itself with cogent evidence that the public servant has obtained a pecuniary advantage by corrupt or illegal means. No evidence in the case in hand is available to prove that there was voluntary and conscious acceptance of the money. It is true that amount was found from the residence of accused Kashi Ram but mere recovery is not sufficient to convict him for offence under Section 13(1)(d)(ii) of the Act of 1988. The prosecution should have also established passing over of the money, specially in the case where the accused was coming with a plea that the money would have been planted by a contractor keeping enmity with him. The burden to prove that the money found with him was not by way of illegal gratification, was required to be discharged, only on adequate establishment of the factum relating to passing over such gratification to him. In view of it, the finding given by learned trial court relating to offence under Section 13(1)(d)(ii) of the Act of 1988 is apparently erroneous. (34). Once I found the findings of learned trial court bad relating to the offence under Section 13(1) (d)(ii) of the Act of 1988 relating to accused Kashi Ram, the question of commission of an offence under Section 12 of the abetment does not arise. As a matter of fact no evidence independently is available to prove any instigation by accused Hodal Singh to accused Kashi Ram to commit an offence under Section 7 or otherwise under the Act of 1988. (35). As a matter of fact no evidence independently is available to prove any instigation by accused Hodal Singh to accused Kashi Ram to commit an offence under Section 7 or otherwise under the Act of 1988. (35). In the case of Central Bureau of Investigation vs. V.C.Shukla and others, AIR 1998 SC 1406 , Honble Supreme Court while dealing with the issue relating to abetment on absolving main accused from the offence under Section 7 of the Act of 1988, held as under:- "50.Undoubtedly for a person to be guilty thereunder it is not necessary that the offences mentioned therein should have been committed pursuant to the abetment. Since abetment has not been defined under the P.C. Act we may profitably refer to its exhaustive definition in Section 107 of the Indian Penal Code. As per that Section a person abets the doing of a thing when he does any of the acts mentioned in the following three clauses: (i) instigates any person to do that thing, or (ii) engages with on e or more other person or persons in any conspiracy for the doing of that thing........, or (iii) intentionally aids, by any act or illegal omission, the doing of that thing. So far as the first two clauses are concerned it is not necessary that the offence instigated should have been committed. For understanding the scope of the word "aid" in the third clause it would be advantageous to see Explanation 2 in Section 107 I.P.C. which reads thus: "Whoever, either prior to or at the time of the commission of an act, does anything in order to facilitate the commission of that act, and thereby facilitates the commission thereof, is said to aid the doing of that act." It is thus clear that under the third clause when a person abets by aiding, the act so aided should have been committed in order to make such aiding an offence. In other words, unlike the first two clauses the third clause applies to a case where the offence is committed. 51. In other words, unlike the first two clauses the third clause applies to a case where the offence is committed. 51. Since in the instant case the prosecution intended to prove the abetment of Jains by aiding (and not by any act falling under the first two clauses adverted to above) and since we have earlier found that no prima facie case has been made out against Shri Advani and Shri Shukla of their having committed the offence under Section 7 of the P.C. Act, the question of Jains committing the offence under Section 12 - and, for that matter, their admission in respect thereof - does not arise. Incidentally, we may mention that the abetment by conspiracy would not also arise here in view of our earlier discussion." (36). Accordingly, accused Hodal Singh also deserves to be acquitted from the charge relating to commission of an offence as per Section 12 of the Act of 1988. (37). In view of whatever discussed above, these appeals deserve acceptance and, therefore, the same are allowed. The judgment impugned dated 25.11.2003 passed by learned Sessions Judge/Special Judge, (Prevention of Corruption Act Cases), Jodhpur in Criminal Case No.1/2003 is quashed. Appellant Kashi Ram is acquitted from the charge relating to committing an offence as per the provisions of Sections 7 and 13(1)(d)(ii) of the Act of 1988 and appellant Hodal Singh is acquitted from the charge of committing an offence as per provisions of Section 12 of the Act of 1988.