JUDGMENT : 1. This appeal has been preferred against the judgment-dated 1-9-2005 passed by Special Judge (under the Prevention of Corruption Act, 1988) (for short 'the Act'), Tikamgarh in Special Case No. 1/01 whereby the appellant stands convicted and sentenced as under with the direction that the jail sentences shall run concurrently - Convicted under section Sentenced to 7 of the Act undergo R.I. for 1 year and to pay a fine of Rs. 1000/- and in default, to suffer R.I. for 3 months. 13(1)(d) read with 13(2) of Act undergo R.I. for 1 year and to pay fine of Rs. 1000/- and in default, to suffer R.I. for 3 months. 2. It is relevant to note that proceedings against co-accused Kalka Prasad Tiwari (hereinafter referred to as "Kalka" only) had already abated consequent to his death on 11-1-2001 even before filing of charge-sheet. 3. Prosecution case may briefly be stated thus - (i) At the relevant point of time, the appellant was posted as Patwari of Halka No. 26, falling within the Revenue Circle of Digaura, Tahsil Jatara Distt. Tikamgarh whereas Kalka was working as Revenue Inspector (for brevity 'RI'). (ii) A Well was located in the agricultural land bearing Survey No. 463/1 "Ga" having area of 0.809 hectare and situated in village Daur. The land formed part of a joint family property and had fallen in shares of Kunjan, wife of Jundan and Phulan, wife of Neke. (iii) On 4-5-2000, upon an application moved by Neke and Jundan, the Naib Tahsildar directed RI to carry out necessary correction in the land records. In pursuance of the direction, RI prepared proposal for demarcation of boundaries of Survey No. 463/1 'Ga' and 463/2 that was held by Puttan. The proposal suggested that the Well was not a common Well. (iv) Asserting that the Well was dug and constructed jointly by his father Malthu (PW4) and uncles Jundan, Neke and Ratti and even after partition of the ancestral land, had been kept joint for common enjoyment, complainant Dasai Kushwaha (PW1) requested Kalka to make necessary correction in the revenue records so as to show the Well as a joint property. In turn, Kalka demanded a sum of Rs. 2000/- as illegal gratification for the purpose. Not being inclined to pay the bribe, Dasai approached Sarpanch Vishnu Sharan (PW3). In turn, Kalka demanded a sum of Rs. 2000/- as illegal gratification for the purpose. Not being inclined to pay the bribe, Dasai approached Sarpanch Vishnu Sharan (PW3). On 14-6-2000, both of them went to the office of Superintendent of Police (Lokayukt), Sagar where Dasai submitted application (Ex.P-1) for initiating necessary action against the RI. As per the direction of S.P., a tape recorder along with a cassette was handed over to Dasai for verification of contents of the complaint. On the following day only, he recorded the corresponding conversation with the RI as also with the appellant. Tape record of the conversations suggested that ultimately, the appellant had agreed to get the desired work done for an illegal gratification of Rs. 1500/-. (v) In this backdrop, on 16-6-2000, Dasai made another complaint by way of application (Ex.P-2), expressing his intention to get the appellant trapped red-handed while receiving the illegal gratification. Accordingly, B. K. Pawaiya (PW9), Inspector of Police, recorded FIR (Ex.P-41) and registered a case under section 7 of the Act. Thereafter, he called two Gazetted Officers namely Sukhram Rajak (PW2) and D. R. Choudhary (PW5), who were posted respectively as Assistant Director, Fisheries & Assistant Engineer, Water Resource Development and apprised them of the contents of the complaint and the tape recorded conversations. In presence of these witnesses, the Inspector took into possession two currency notes each in denomination of Rs. 500/- and 5 currency notes each of Rs. 100/- brought by Dasai and got them duly treated with phenolphthalein with the assistance of Parmanand Choudhary, the Peon, who also placed the tainted currency notes into the right secret pocket of Dasai's trousers. Necessary instructions were given to Dasai not to touch the notes at any earlier point of time and to give a signal by scratching his head after handing over the money to the appellant. (vi) Upon completion of usual formalities, at about 7.45 p.m., the trap party comprising of B. K. Pawaiya, Sukhram Rajak, D. R. Choudhary, Head Constable Niranjan Singh, Constables Rajendra Singh (PW6), Vishnu Patel, Premlal Jat and Raj Kumar Sen started from Sagar in a Jeep and made a night stay at the rest house in Shahgarh. (vii) On 17-6-2000 at about 9.30 in the morning, members of the squad reached Digaura. The Jeep was parked at the Bus-stand wherefrom Dasai proceeded towards the office of the RI on foot. (vii) On 17-6-2000 at about 9.30 in the morning, members of the squad reached Digaura. The Jeep was parked at the Bus-stand wherefrom Dasai proceeded towards the office of the RI on foot. He was followed by D. R. Choudhary, Niranjan Singh, Vishnu Patel and Raghvendra Singh, who were instructed by B. K. Pawaiya to witness the transaction between Dasai and the appellant. (viii) As Dasai entered into the office, the appellant, sitting on the floor, enquired about the bribe money and Dasai then handed over chemically treated currency notes to the appellant, who kept the same in the right pocket of his Pyjama. At this point of time only, Dasai gave the agreed signal. The trap party headed by B. K. Pawaiya immediately reached the office and apprehended the appellant. (ix) All the seven currency notes were recovered from the right pocket of the appellant's Pyjama. They were counted by D. R. Choudhary (PW5) who also tallied their numbers with the details recorded by B. K. Pawaiya in the pre-trap panchnama (Ex.P-5). His hands as well as hands of Dasai and the appellant and the pocket of Pyjama were washed with solution of sodium carbonate. The resultant parts that turned pink were duly seized and forwarded to FSL, Sagar. FSL report (Ex.P-46) indicated that the solutions contained sodium carbonate and phenolphthalein. (x) After completing the investigation and obtaining sanction (Ex.P-17), charge-sheet was submitted before the Special Court (under the Act) at Tikamgarh. 4. While denying the charges, the appellant pleaded false implication. In the cross-examination of Inspector B. K. Pawaiya, it was suggested that the trap was laid for nabbing Kalka only and finding that he was not available in the office, the tainted currency notes were planted in the Pyjama left there by the appellant before going out to answer call of nature, presuming that it belonged to Kalka. Even though, the appellant did not adduce any evidence yet, was able to make the complainant Dasai (PW1) to give his version, suggesting that he never demanded the bribe and also that the tainted currency notes were kept in the right pocket of his Pyjama that was hanging on a Khoonti (peg) in his office at the time when he had gone out to defecate. However, learned trial Judge proceeded to reject the explanation as to recovery of the tainted money from appellant's Pyjama-pocket in the light of the incriminating evidence of the members of the trap party which, in his opinion, was sufficient to bring home the charges beyond a reasonable doubt. 5. Legality and propriety of the conviction have been challenged inter alia on the following grounds - (i) Proceedings were initiated upon the complaint (Ex.P-1) made against Kalka only and contents of the second complaint (Ex.P-2) were not sought to be verified despite the fact that recitals of the first report (Ex.P-1) had remained uncorroborated. (ii) Demand of bribe by the appellant was not proved as (a) it did not draw support from the sworn testimony of the complainant Dasai and (b) the corresponding tape-recorded evidence was rejected by learned trial Judge as not worthy of credence for the reasons recorded in Para 14 of the impugned judgment. (iii) Story of payment of tainted money by the complainant to the appellant was not established beyond a reasonable doubt. (iv) Mere recovery of money divorced from the circumstances under which it was paid was not sufficient to attract statutory presumption under section 20 of the Act. In response, learned Special Public Prosecutor for the SPE (Lokayukt), while making reference to pronouncement of the Supreme Court in Hazari Lal vs. State (Delhi Administration), (1980) 2 SCC 390 , has submitted that even in the face of non-supportive evidence of the complainant, the convictions in question are well-merited in the light of the incriminating evidence of B. K. Pawaiya and other members of the trap party coupled with the admission that the tainted currency notes were recovered from Pyjama of the appellant. 6. Before adverting to the merits of rival contentions in a proper perspective, it may be seen that recovery of currency notes smeared with phenolphthalein powder from the Pyjama pocket of the appellant is not disputed seriously. Further, non-corroborative evidence of complainant Dasai (PW1) would not, by itself, sufficient to set aside the order of conviction in view of the well-settled position of law as reaffirmed by the Apex Court in Hazari Lal's case that in the facts and circumstances of a particular case, the Court may accept the evidence of a police officer who laid the trap without any corroboration. 7. 7. The point for consideration in this appeal, therefore, is whether the evidence of Investigating Officer B. K. Pawaiya could be unhesitatingly acted upon in absence of its substantiation by the complainant ? 8. Admittedly, upon the first complaint (Ex.P-1) made by Dasai, proceedings were initiated against Kalka only, who had made the incorrect entry in the revenue records. As per the version recorded therein, a sum of Rs. 2000/-was demanded by Kalka as illegal gratification for entering the Well as a common Well in the relevant records. The complaint further reflected that Dasai had directly approached the co-accused and, therefore, no role was played by the appellant in settling the amount of bribe to be given for correction of the wrong entry. In this background, the detecting officer ought to have verified the contents of the second complaint (Ex.P-2) particularly in view of the fact that the tape recorded conversations between Kalka and Dasai did not suggest that bribe was to be given to the appellant for being handed over to Kalka or that the appellant was a party to the arrangement arrived at between Kalka and Dasai. In other words, there was no justification available to the complainant for approaching the appellant or for recording the conversation with him. 9. As pointed out already, learned trial Judge did not accept the tape recorded conversation between complainant and the appellant as a reliable piece of evidence. Vishnu Saran (PW3), the Sarpanch of Gram Panchayat, who had accompanied the complainant up to the office of Superintendent of Police at Sagar, clearly admitted that Dasai had made complaint against Kalka only. Dasai (PW1) was also emphatic in stating that no demand for illegal gratification was made by the appellant at any point of time. Moreover, the evidence of Durjan Lal (PW10), the Chainman, was sufficient to prove that proposal for modification of the corresponding revenue record, as prepared by Kalka, had already been forwarded to the Naib Tahsildar prior to the complaint made against the appellant. In these circumstances, it was not possible to draw inference that the demand for bribe was made by the appellant (See. Sadashiv Mahadeo Yavaluje and Gajanan Shripatrao Salokhe vs. State of Maharashtra, AIR 1990 SC 287 ). 10. In these circumstances, it was not possible to draw inference that the demand for bribe was made by the appellant (See. Sadashiv Mahadeo Yavaluje and Gajanan Shripatrao Salokhe vs. State of Maharashtra, AIR 1990 SC 287 ). 10. Inspector B. K. Pawaiya (PW9) reiterated the allegation that the appellant was caught red handed with the tainted currency notes immediately after receiving the same from Dasai and other members of the trap party namely Sukhram Rajak (PW2), D. R. Choudhary (PW5) and Rajendra Singh (PW6) came forward to support the corresponding version. However, their evidence suffered from following material inconsistencies with reference to the recitals of Panchnama (Ex.P-3) prepared by B. K. Pawaiya immediately after conclusion of the trap proceedings and explanatory notes to Sketch Map (Ex.P-12) drawn by Patwari Birendra Kumar at the instance of the panch witnesses. (i) According to B. K. Pawaiya, being able to closely observe the appellant's acts of receiving the tainted money and keeping the same in the Pyjama, he as well as panch witnesses had rushed to the Revenue Inspector's office wherein the appellant was sitting whereas Sukhram Rajak (PW2) and D. R. Choudhary (PW5) clearly admitted that it was upon the signal given by complainant Dasai, nearly 4 minutes after coming out of the appellant's house that the trap party had moved towards the room wherein the appellant was sitting and as per statement made by Rajendra Singh, while standing near the post office, he was able to witness passing of the tainted money from Dasai to the appellant and the signal given by Dasai after coming out of the office. (ii) Rajendra Singh emphatically denied the facts as mentioned in the Panchnama (Ex.P-3) that the complainant had given the pre-arranged signal after coming out of the office. As per his version, Dasai could not come out of the office before entry of the trap party thereinto. (iii) As reflected in the Panchnama (Ex.P-3), the trap party was divided into two groups. First group comprising of B. K. Pawaiya, D. R. Choudhary (PW5) and Head Constable Niranjan was stationed near Santoshi Mata Temple shown at Spot No. 2 in the map (Ex.P-12) whereas remaining members of the trap party namely Sukhram Rajak, Vishnu Prasad, Rajkumar Sen and Rajendra Singh were made to stay on the opposite side of the road and marked as Spot No. 3 on the map. (iv) Apparently, the persons, standing at Spot No. 2 (above), viz. B. K. Pawaiya, D. R. Choudhary and Head Constable Niranjan could not have witnessed the alleged handing over of bribe money to the appellant in the room meant for meeting of Patwaris with the members of the public and located adjacent to the office of Revenue Inspector. 11. A bare perusal of Paragraph 25 of the impugned judgment would reveal that learned trial Judge discarded these contradictions as immaterial by observing that it was quite possible that B. K. Pawaiya was standing at a spot wherefrom the proceedings taking place inside the room were clearly visible and the Panch witnesses were stationed at a place wherefrom the proceedings could not have been witnessed. However, it is well settled that a new prosecution case cannot be made to imperil defence. In other words, the infirmities assumed significance in the light of the defence that the appellant has been falsely implicated after failure of trap arranged for catching Kalka. 12. Learned Special Public Prosecutor still contended that the discrepancies in the evidence of the members of the trap party were of no consequence as the appellant had candidly admitted recovery of money from his pocket of Pyjama that, in turn, was sufficient to give rise to the presumption under section 20 of the Act. To fortify the contention reliance has been placed on these precedents :- (i) C. K. Damodaran Nair vs. Govt. of India, AIR 1997 SC 551 , (ii) Madhukar Bhaskarrao Joshi vs. State of Maharashtra, (2000) 8 SCC 571 , (iii) B. Noha vs. State of Kerala, (2006) 12 SCC 277 . 13. In C. K. Damodaran Nair's case (supra), while interpreting the expression 'obtain' used is section 5(1)(d) held as under - "The position will, however, be different so far as an offence under section 5(1)(d) read with section 5(2) of the Act is concerned. For such an offence, prosecution has to prove that the accused 'obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under section 4(1) of the Act as it is available only in respect of offences under section 5(1)(a) and (b) - and not under section 5(1)(c), (d) or (e) of the Act. "Obtain" means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under section 5(1)(d) of the Act unlike an offence under section 161 Indian Penal Code which as noticed above, can be, established by proof of either 'acceptance' or 'obtainment'. 14. Madhukar's case (above) is an authority for the proposition that premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted "as motive or reward" for doing or forbearing to do any official act. Accordingly, prosecution has no further duty to prove the fact that the complainant had paid the demanded money to the accused for enabling it to lay hand on the legal presumption employed in the Act. 15. Reaffirming the aforesaid proposition, the Supreme Court in B. Noha's case (ibid) observed - "When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case". 16. Coming to the present case, it may be observed that on one hand, neither demand of bribe nor acceptance or payment thereof was established from the evidence on record and on the other, serious infirmities in the prosecution version were sufficient to establish probability of the defence that the currency notes were put into the pocket of the Pyjama presuming it to be that of co-accused Kalka without his knowledge or connivance. Since the defence was not of a total denial, the mere fact that no evidence was led by the appellant was not sufficient to rule out the application of doctrine of preponderance of probability as the evidence adduced on behalf of the prosecution could be relied by the accused for rebutting the presumption. Further, the burden, which rests on the accused to displace the presumption, is not as onerous as that cast on the prosecution to prove its case. Further, the burden, which rests on the accused to displace the presumption, is not as onerous as that cast on the prosecution to prove its case. As such, none of the decisions referred to by the Public Prosecutor has any application to the facts of the instant case. 17. To sum up, since the testimony of Inspector B. K. Pawaiya as well as other members of the trap party was not found to be above reproach or suspicion of interestedness, incompetence or subordination, it could not have formed basis of the impugned convictions particularly when the complainant had not come forward to support probability of the defence version. Likewise, incriminating evidence of other members of the squad was also discrepant and unworthy of credence. Since it could not be established that the appellant had obtained or accepted any illegal gratification pursuant to demand earlier made by him by abusing his position as a public servant, presumption under section 20 of the Act could not be drawn. In such a situation, the appellant was certainly entitled to the benefit of doubt. The appeal, therefore, deserves acceptance. 18. In the result, the appeal is allowed. The impugned convictions and consequent sentences are hereby set aside. Instead, the appellant is acquitted of the offences. Amount of fine, if deposited, be refunded. 19. The appellant is on bail. His bail bonds shall stand discharged.