JUDGMENT 1. - Challenge in this appeal is to the judgment dated May 12, 1988 whereby, the Special Judge, A.C.D. Cases, Jaipur, convicted the accused-appellant Pramod Kumar in the offences under Section 161 of IPC and Section 5(1)(d) read with Section 5(2) of Prevention of Corruption Act, 1947 (hereinafter referred to as 'Act 1947') and sentenced as under : U/s. 161 IPC : Simple imprisonment for one year and a fine of Rs. 200/-, in default of payment of fine to further suffer simple imprisonment for one month. U/s. 5(1)(d)(2) of Act 1947 Simple imprisonment for one year and a fine of Rs. 200/-, in default of payment of fine to further suffer simple imprisonment for one month. Substantive sentences were ordered to run concurrently. 2. The prosecution version as unfolded during trial is as follows : That on March 14, 1986 the complainant Ram Karan submitted a written report Ex.P/9 before the Additional S.P., Anti Corruption Department, Ajmer stating that he was a resident of village Jaswantpura, Tehsil Sarwar, District Ajmer. His father Bhura was a khatedar tenant of agricultural land bearing khasra nos. 2085, 2088, 2089, 2090, 2092, 2092/2611 measuring 13 bighas i biswas. There was a well on the land in respect of which there had arisen a dispute between complainant and the Raigors of the village. Since the complainant wanted to prefer an appeal, he required copies of the khasras. It is alleged that the complainant met the concerned Patwari on March 11, 1986 and prayed for issuing the copies of concerned khasras. The accused Halka Patwari solicited for a bribe of Rs. 100/- from him. Thereafter, the complainant met the Patwari Halka in the morning of March 14, 1986 and submitted an application for obtaining copies of Jamabandi, whereupon the Patwari gave out that he would not accept an amount less than Rs. 50/- in any case. Patwari agreed to accept the amount at the Patwarghar in the village Tantoti. Since, the complainant did not want to grease the palms of the accused, he therefore lodged the report Ex.P/9 whereupon, PW-8 Mahender Kumar Govil, Addl. S.P, formulated a scheme for entrapping the accused-appellant and co-opted two independent witnesses PW-2 Nand Kishore and PW-3 Nanak. 3. The complainant gave Rs, 50/- currency notes of denominations of Rs. Since, the complainant did not want to grease the palms of the accused, he therefore lodged the report Ex.P/9 whereupon, PW-8 Mahender Kumar Govil, Addl. S.P, formulated a scheme for entrapping the accused-appellant and co-opted two independent witnesses PW-2 Nand Kishore and PW-3 Nanak. 3. The complainant gave Rs, 50/- currency notes of denominations of Rs. 10/- to the Addl.S.P., who in the presence of the independent witnesses treated them with phenoptheline powder and having initialed them returned to the complainant with the direction that he shall pay these currency notes to the accused on demand and give the agreed signal. PW-8 Shri Mahendra Kumar Govil Addl.S.P,'thereafter proceeded to Patwarghar along with the trap party and on getting agreed signal caught the appellant red-handed with marked currency notes of Rs. 50/-. He recovered the said marked currency notes vide memo Ex.P/3, lodged the FIR Ex.P/13 and during investigation of the case recorded the statements of witnesses under Section 161 of Cr.PC., obtained the prosecution sanction Ex.P/1 from T. Srinivasan, the then Collector, Ajmer and after usual investigation sent the appellant for trial to the competent court. 4. The accused-appellant was indicted for the offences under Section 161 of IPC and Section 5(1)(d)(2) of Act 1947, who pleaded not guilty and claimed trial. In order to further its version, the prosecution examined in all 8 witnesses. In his explanation under Section 313 of Cr.PC. the accused claimed innocence and pleaded that neither he solicited for bribe nor he obtained the same. He has been implicated in this case on account of the animosity with the complainant. 5. Heard the submissions advanced by learned counsel for the appellant, learned Public Prosecutor appearing for the State and with their assistance scanned the material on record. 6. Learned counsel for the appellant made the following submissions (i) That, there is no evidence worth the name that any demand of bribe was made by the appellant from complainant Ram Karan. Even the independent witnesses PW-2 Nand Kishore and PW-3 Nanak who accompanied the complainant to hear the conversation between the two, did not depose before the court that they heard any conversation with regard to demand of bribe money between the appellant and the complainant. (ii) That, since the demand of bribe goes to the very root of the case and it is not proved from the statements of the prosecution witnesses, the entire. (ii) That, since the demand of bribe goes to the very root of the case and it is not proved from the statements of the prosecution witnesses, the entire. prosecution case becomes doubtful. (iii) That, since the complainant Ram Karan was not examined by the prosecution on the ground that he had died, the contents of complaint Ex.P/9 do not stand proved, nor this fact stand proved that the amount, passed on to the appellant, was the bribe amount. (iv) That, the appellant furnished an instantaneous explanation at the time of recovery of amount to the Addl. S.P. Mr. Govil with regard to the marked currency notes that the said amount was towards the payment of land revenue. (v) That, there is no ground to disbelieve the spontaneous explanation furnished by the appellant which contains no grain of falsehood and as such the appellant has established his defence by preponderance of probability. (vi) That the learned trial court has not properly appreciated the evidence of the prosecution witnesses which has resulted into erroneous finding of conviction and the same deserves to be set aside. 7. Per contra, learned Public Prosecutor has simply urged that the impugned judgment is cogent and well merited. The learned Special Judge has critically examined the evidence of prosecution witnesses in great details and there does not appear any infirmity therein. as such, the appeal deserves to be dismissed. 8. Two charges, one under Section 5(1)(d) read with Section 5(2) of Act 1947 and the other under Section 161 of IPC were framed against the appellant wherein, it was stated that he obtained gratification of Rs. 50/- other than the legal remuneration from the complainant Ram Karan for issuing copies of khasras as a motive. The learned Special Judge convicted the appellant in the offence under Section 161 of IPC and Section 5(1)(d)(2) mainly on this ground that the accused admitted to accept Rs. 50/- from Ram Karan and that the accused failed to prove the amount of Rs. 50/- as payment of land revenue from Ram Karan. "9. The learned Special Judge convicted the appellant in the offence under Section 161 of IPC and Section 5(1)(d)(2) mainly on this ground that the accused admitted to accept Rs. 50/- from Ram Karan and that the accused failed to prove the amount of Rs. 50/- as payment of land revenue from Ram Karan. "9. Section 4 (1) of the Prevention of Corruption Act reads : "Where in any trial of an offence punishable under sec.161 or section 165 of the Indian Penal Code (or of an offence referred to in clause (a) or clause (b) of sub-section (1) of section 5 of this Act punishable under sub-section (2) thereof, it is proved that an accused-person has accepted or obtained, or has agreed to accept or attempt to obtain, for himself or for any other person any gratification (other than legal , remuneration) or any valuable thing from any person, it shall be presumed unless the contrary is proved that he accepted or obtained, or agreed to accept or attempted to obtain, that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in the said section 161, or, as the case may be, without consideration or for a consideration which he knows to be inadequate." 9. From a reading of the above provision, it is clear that its operation, in terms, is confined to a trial of an offence punishable under section 161 or section 165, Penal Code or under clause (a) or (b) of section 5(1) read with sub-section (2) of that sec. of the Act. If at such a trial the prosecution proved that the accused has accepted or obtained gratification other than legal remuneration, the court has to presume the existence of the further fact in support of the prosecution case, viz., that the gratification was accepted or obtained by the accused as a motive or reward such as mentioned in section 161, Penal Code. The presumption however, is not absolute. It is rebuttable. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. The accused can prove the contrary. The quantum and the nature of proof required to displace this presumption may vary according to the circumstances of each case. Such proof may partake the shape of defence evidence led by the accused, or it may consist of circumstances appearing in the prosecution evidence itself, as a result of cross-examination or otherwise. But the degree and the character of the burden of proof which section 4(1) casts on an accused person to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof which under sec.101, Evidence Act rests on the prosecution. While the mere plausibility of an explanation given by the accused in his examination under sec.313 of Cr.PC. may not be enough, the burden on him to negate the presumption may stand discharged, if the effect of the material brought on the records, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption by showing a mere preponderance of probability in his favour, it is not necessary for him to establish his case beyond a reasonable doubt) See Mahesh Prasad Gupta v. State of Rajasthan . 10. Another aspect of the matter which has to be borne in mind is that the sole purpose of the presumption under section 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences under section 5(1) (d) (2) of the Prevention of Corruption Act and section 161, Penal Code. The presumption therefore can be used in furtherance of the i prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is inconsistent with the fact presumed, the presumption will be rendered sterile from its very inception, if out of judicial courtesy it cannot be rejected out of hand as still born. 11. Let us now consider the facts of the present case in the light of the principles ennunciated above. The so called star witness of this case, the complainant Ram Karan could not be examined on account of his death. PW-2 Nand Kishore and PW-3 Nanak are the two independent witnesses of this case. 11. Let us now consider the facts of the present case in the light of the principles ennunciated above. The so called star witness of this case, the complainant Ram Karan could not be examined on account of his death. PW-2 Nand Kishore and PW-3 Nanak are the two independent witnesses of this case. Albeit, both these witnesses have supported the prosecution case to the extent of treating the currency notes by phenoptheline powder, issuing directions to the complainant, issuing directions to them also with regard to hear the conversation between complainant and the accused and catching the appellant red-handed in Patwarghar, but with regard to listen the conversation between complainant and the appellant and acceptance of 8 bribe money, both the witnesses have declined to listen the conversation as i they were standing at distance. They have further deposed that the complainant and the accused were not visible also from the place where they were standing. They saw the appellant and the complainant inside the Patwarghar only. With regard to obtaining or accepting the bribe money, they have stated that when AddI.S.R gave his introduction to the appellant, he was, in the beginning, flustered but spontaneously furnished an explanation that the amount of Rs. 50/- passed on by the complainant to him, was an amount towards payment of land ravenue and it was not the bribe money. With regard to obtaining or accepting the bribe money, they have stated that when AddI.S.R gave his introduction to the appellant, he was, in the beginning, flustered but spontaneously furnished an explanation that the amount of Rs. 50/- passed on by the complainant to him, was an amount towards payment of land ravenue and it was not the bribe money. The statement of PW-2 Nand Kishore is reproduced thus : " eSaus ifjoknh o eqyfte ds chp gksus okyh ckr dks ugha lquk o u gh eSaus :i;s dk vknku&iznku ns[k ldk D;ksafd eSa dkQh nwjh ij [kM+k FkkA "" vij iqfyl v/kh{kd us viuk ifjp; eqyfte dks fn;k o iwNk fd vkius jkedj.k ls iSls fdl ckr ds fy;s gSa rks eqyfte ?kcjk x;k o ckn esa dgk fd ifjoknh ls yxku ds isVs 50 :i;s fy;s gSaA " Likewise, the statement of PW-3 Nanak, given in examination in chief, is reproduced as under:- " eSa nwj Fkk blfy;s eq>s eqyfte gkftj vnkyr izeksn dqekj o ifjoknh fn[kkbZ ugha ns jgs Fks o u gh ckrphr lqukbZ ns jgh Fkh bZ'kkjk feyrs gh ge gokgku~ iqfyl vij v/kh{kd iqfyl ikVhZ ds yksx lHkh iVokj ?kj ds vUnj pys x;sA iVokj ?kj esa ifjoknh o eqyfte ds vykok dksbZ vU; ugha FkkA vij iqfyl v/kh{kd us tkrs gh viuk ifjp; fn;k o iwNk fd D;k vkius ifjoknh ls 50 :i;s fj'or ds fy;s gSa rks eqyfte us tokc fn;k fd mlus ljdkjh yxku ds iSls fy;s gSaA " Not only the independent witnesses but other members of the trap party belonging to Anti Corruption Department such as PW-4 Jai Singh, Head Constable, PW-7 Nand Singh and PW-8 Shri Mahender Kumar Govil, Addl.S.P, himself have admitted that when the accused was asked about obtaining the bribe amount of Rs. 50/- from the complainant Ram Karan, he declined to have accepted Rs. 50/- as bribe money. On the contrary, he furnished an explanation that these Rs. 50/- he accepted against the payment of land revenue from the complainant. Thus, from the evidence of PW-2 Nand Kishore, PW-3 Nanak, PW--4 Jai Singh, PW-7 Nand Singh and PW-8 Mahender Kumar Govil, it is very well established that the appellant Pramod Kumar immediately after trap, offered the explanation where he denied to obtain Rs. 50/- as bribe and claimed that he had received this amount against the payment of land revenue from the complainant. 50/- as bribe and claimed that he had received this amount against the payment of land revenue from the complainant. PW-5 Harbansh Lal Khurana is a witness, who was posted as Land Revenue Inspector in Tantoti Halka during the relevant period. This witness has deposed on the basis of 'Dhalbanch' Register Ex.Article-8 and Ex.Article-9 that an amount of Rs. 42.25 paisa was outstanding against the name of appellant's father Bhura, which was required to be deposited by the complainant only. Thus, from the evidence of Harbansh Lal Khurana, it is also established that the dues of Rs.42.65 paisa were lying against him. 12. Mere receipt of Rs. 50/- by the appellant from the complainant Ram Karan on 15.03.1986 (admitted by the appellant) will not be sufficient to fasten guilt under Section 5(1) (a) or Section 5(1)(d) of the Act, in the absence of any evidence of demand and acceptance of the amount as illegal gratification. If the amount had been given as payment of land revenue or even if it was not so paid, but the accused was made to believe that the payment was towards loan amount, he cannot be said to have committed any, offence. If the reason for receiving the amount is explained and the explanation is probable and reasonable, then the appellant had to be acquitted as rightly done by the Special Court. 13. In the case of Punjabrao v. State of Maharashtra, 2002 (10) SCC 371 the Hon'ble Apex Court has held thus "it is too well settled that in a case where the accused offers an explanation for receipt of the alleged amount, the question that arises for consideration is whether that explanation can be said to have been established. It is further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. (emphasis supplied) 14. In Chaturdas Bhagwandas Patel v. The State of Gujarat, AIR 1976 SC 1497 , this Court held that : "the burden that rests on an accused to displace the statutory presumption that is raised under Section 4(1) of the Act, is not onerous as that cast on the prosecution to prove its case. (emphasis supplied) 14. In Chaturdas Bhagwandas Patel v. The State of Gujarat, AIR 1976 SC 1497 , this Court held that : "the burden that rests on an accused to displace the statutory presumption that is raised under Section 4(1) of the Act, is not onerous as that cast on the prosecution to prove its case. But such burden has to be discharged, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as is referred to in Section 161, IPC." (emphasis supplied) 15. In State v. K. Narasimhachary, 2005 (2) WLC (SC) Cri. 723 : 2006 (1) SCC (Cri) 41 , the court reiterated the well recognised principles that if two views are possible, the appellate court should not interfere with the acquittal by the lower court, and that only where the material on record leads to a sole and inescapable conclusion of guilt of the accused, the judgment of acquittal will call for interference by the appellate court. 16. In the case of Punjabrao, a patwari was on a campaign to collect loan amounts due to Government. The complainant therein was admittedly a debtor to the Government. The accused explained that the amount in question was received towards loan. The Hon'ble Apex Court accepted this explanation and held that the appellant had established the defence by preponderance of probability and thus acquitted him. In the instant appeal also, the appellant has also instantly denied to obtain the bribe money and immediately offered this explanation that the complainant had given money as payment of land revenue. The accused has not only claimed ignorance in his statement under Section 313 Cr.P.C but has submitted the written explanation also in defence. The accused has adduced one witnesses in defence DW-1 Nihal Chand. The learned Special Judge has not believed the explanation of the accused offered immediately after trap and the corroborative statements of the prosecution witnesses in this regard. The learned Special Judge has cursorily observed in a slipshod manner that the evidence of DW-1 Nihal Chand is not sufficient to rebut presumption raised under Section 4(1) of Act, 1947. The learned Special Judge has also not assigned any reason for not believing the explanation offered by the appellant as also the testimony of defence witnesses. 17. The learned Special Judge has cursorily observed in a slipshod manner that the evidence of DW-1 Nihal Chand is not sufficient to rebut presumption raised under Section 4(1) of Act, 1947. The learned Special Judge has also not assigned any reason for not believing the explanation offered by the appellant as also the testimony of defence witnesses. 17. The Hon'ble Supreme Court in the case of M.S. Narayana Menon @ Mani v. State of Kerala and anr., 2006 (2) WLC (SC) Cri. 176 : 2006 (6) SCC 39 , has held that : "Moreover, the onus on an accused is not as heavy as that of the prosecution. It may be compared with a defendant in a civil proceeding.'' 18. Thus, it is well settled that the accused is not required to establish his defence by proving beyond reasonable doubt like that of prosecution, but can establish the same by preponderance of probability. According to the appellant, the amount of Rs. 50/- passed on to him was the payment of land revenue, as such it cannot be inferred that the appellant obtained Rs. 50/- from the complainant for any motive or reward. Thus, there being no occasion for the accused to demand the bribe from the complainant and in the absence of his statements, I am constrained to hold the evidence of the prosecution witnesses untrustworthy and unworthy of credence. The explanation offered immediately after the trap by the accused appellant seems to be reliable and worthy of credence. 19. In the ultimate analysis, it is held that the demand of bribe is very material in trap cases. Once the story of demand falls through, the authenticity of trap becomes highly doubtful because acceptance of bribe germinates through demand. The prosecution has failed to prove against the appellant both the demand and acceptance of bribe of Rs. 50/- from the complainant beyond reasonable doubt. The impugned judgment of the trial Court is not found to be cogent, just and proper. The learned trial Judge has erred in ignoring the probable explanation offered by the appellant which in the facts and circumstances of the case stands fully established by preponderance of probability. I do not concur with the finding of conviction arrived at by the learned trial Court and the same deserves to be set aside. 20. The learned trial Judge has erred in ignoring the probable explanation offered by the appellant which in the facts and circumstances of the case stands fully established by preponderance of probability. I do not concur with the finding of conviction arrived at by the learned trial Court and the same deserves to be set aside. 20. For these reasons, the criminal appeal filed by the appellant Pramod Kumar son of Lekh Ram is allowed. His conviction and sentence awarded to him in the offences under Sections 161 of IPC and Section 5(1)(d) read with Section 5(2) of Prevention of Corruption Act, 1947 vide impugned judgment dated May 12, 1988 are set aside and he is acquitted in the said offences. The appellant is on bail, he need not surrender and his bail bonds stand discharged.Appeal Allowed - Conviction Set aside. *******