JUDGMENT A.K. Shrivastava, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 13th February, 2003 passed by learned Special Judge, Guna, in Special Case No. 1/2002 convicting Appellant under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (in short the Act) and thereby sentencing him to suffer imprisonment as mentioned in the impugned judgment the Appellant has knocked the doors of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that complainant Arun Kumar Lakda is the husband of Smt. Phoojensiya Kujur who at the relevant point of time was serving on the post of Assistant Teacher in Primary School, Khatkiya. The wife of the complainant obtained three months maternity leave and after availing it, joined her duties on 30th April, 2001. It is the further case of prosecution that maternity leave for the months of February and March was sanctioned and the payment of salary was made by the Appellant after obtaining bribe of Rs. 1,000/-, but the payment of maternity leave for the month of April and after joining the duties, the salary of May and June was not paid by the Appellant who at the relevant point of time was serving on the post of Block Education Officer and was also drawing and disbursing officer. The complainant was insisting the Appellant to make the payment, but bluntly it was told by him that he would make the payment of salary for the months of April, May and June, 2001 only when a bribe of Rs. 500/-would be given to him because for sanctioning the payment of maternity leave, he takes bribe at the rate of Rs. 500/-per month and since Rs. 1,000/-has already been paid, an amount of Rs. 500/-be paid and on its payment only, the order of making payment of the salary for the months of April, May and June would be issued. This conversation took place on Friday 17.8.2001 in the chamber of Block Education Officer at Chachoda. The Appellant further directed complainant that on Monday 20th August, 2001, he would not come in the office and would come only on Tuesday and directed to bring the balance amount of bribe on Tuesday. This conversation took place on Friday 17.8.2001 in the chamber of Block Education Officer at Chachoda. The Appellant further directed complainant that on Monday 20th August, 2001, he would not come in the office and would come only on Tuesday and directed to bring the balance amount of bribe on Tuesday. Since the complainant was not keen enough to give any bribe and wanted to get the Appellant caught red handed, with the consent of his wife, he submitted a complaint to the Superintendent of police, Special Police Establishment, Gwalior. The Superintendent of Police directed Inspector Ramlakhan Singh Bhadauria to register the case. 3. On the basis of the report/complaint of the complainant and on the instructions of the Superintendent of Police, Inspector Ramlakhan Singh Bhadauria registered the case at zero number and started the investigation. In order to collect the evidence, the Inspector wrote a letter to Collector, Gwalior, requesting him to depute two Gazetted officers who can be made Panch witnesses. Eventually, the Joint Collector directed Panch witnesses V.K. Bhargava, Assistant Engineer, Water Resources Department, and Dr. Virendra Kumar, Lecturer in Government Ayurvedik Hospital, Gwalior, to remain present at 6 in the morning of 21st August, 2001 in the office of Lokayukta, as a result of which, on this date at 6 a.m. both the Panch witnesses arrived in the said office. 4. The police inspector introduced the complainant to Panch witnesses and thereafter complaint dated 20.8.2001 submitted by the complainant was read over by Panch witness Virendra Sharma in high tone and on hearing its contents, they were affirmed by the complainant. Accordingly, an endorsement on the complaint was made which was signed by the Panch witness Dr. Virendra Kumar Sharma. 5. Thereafter, on submitting five currency notes having denomination of Rs. 100/-each by the complainant, their numbers were noted down in a Panchnama and thereafter Constable Raghunandan Singh was directed to apply phenolphthalein powder on the currency notes who did so. Accordingly, an endorsement on the complaint was made which was signed by the Panch witness Dr. Virendra Kumar Sharma. 5. Thereafter, on submitting five currency notes having denomination of Rs. 100/-each by the complainant, their numbers were noted down in a Panchnama and thereafter Constable Raghunandan Singh was directed to apply phenolphthalein powder on the currency notes who did so. Head Constable Siyaram Sharma searched the pocket of the shirt of the complainant and found that nothing was kept in it and thereafter Constable Raghunandan Singh, who applied phenolphthalein powder on the currency notes, kept those treated currency notes in the pocket of the complainant and he was directed that these treated currency notes be handed over to the Appellant only when he makes demand of bribe and earlier to it, he should not come in contact with them. He was also pacified that before or after handing over the treated currency notes to the Appellant he will never shake hands with him and would also observe that after receiving the bribe money where it is being kept and thereafter he may pass on the signal that the transaction of bribe has taken place. 6. Thereafter, Head Constable Siyaram Sharan Sharma prepared a solution of sodium carbonate and dipped the fingers of the hands of Constable Raghunandan Singh who applied phenolphthalein powder on the currency notes. On dipping the fingers, the colour of the chemical solution turned to pink. It was collected in a clean bottle which was thereafter sealed. It was pacified to the complainant that after the treated currency notes are received by the Appellant if the fingers of his hands are subjected to phenolphthalein powder test, the colour of the solution would turn to pink. Thereafter, two packets of phenolphthalein powder were prepared and after keeping them in two envelopes, those envelopes were sealed. Constable Raghunandan Singh destroyed the paper on which by keeping currency notes phenolphthalein powder was applied by burning it. 7. A trap party was constituted by the Inspector and the fingers of the hands of each member of the trap party were subjected to phenolphthalein powder test, but the colour of the solution did not change and the said chemical solution of each member was collected in separate sealed bottles. 8. 7. A trap party was constituted by the Inspector and the fingers of the hands of each member of the trap party were subjected to phenolphthalein powder test, but the colour of the solution did not change and the said chemical solution of each member was collected in separate sealed bottles. 8. The trap party in two government vehicles proceeded to Chachoda via Shivpuri, Guna and Beenaganj where they reached at 2.30 p.m. The vehicles were stationed nearby the bungalow of SDM. Thereafter, the complainant was sent to the office of Appellant and Head Constable Bhagvati Prasad Sharma and Constable Ummed Singh were directed to chase and observe the complainant. The other members of trap party took their convenient position in the office of B.E.O. by hiding their identity. After near about 15 minutes, complainant came out from the office of Appellant and gave signal that the transaction of bribe has taken place, as a result of which, Head Constable Bhagvati Prasad Sharma and Constable Ummed Singh rushed and caught hold of the hands of the Appellant from the wrist. In the meantime, other members of trap party also arrived there. The In-charge of trap party Inspector Arvind Khare gave introduction of himself as well as that of Panch witnesses. Thereafter, in a glass, solution of sodium carbonate was prepared by Head Constable Siyaram Sharma which was found to be colourless and in this solution the fingers of the hands of Appellant were dipped. On dipping his fingers, the colour of the solution turned to pink which was collected in a separate sealed bottle. Thereafter, another fresh solution of sodium carbonate was prepared in which the fingers of the hands of Panch witness Dr. Virendra Kumar Sharma were dipped, but the colour of the solution did not change and the said solution was collected in a separate sealed bottle. Thereafter, Virendra Kumar Sharma made query from the Appellant that where he has kept the bribe money. In response to it, the Appellant admitted that he has kept the said money in the pocket of his trousers, as a result of which, the said currency notes were taken out by the said Panch witness and the numbers of those currency notes were tallied with pre-trap Panchnama which were found to be the same. In response to it, the Appellant admitted that he has kept the said money in the pocket of his trousers, as a result of which, the said currency notes were taken out by the said Panch witness and the numbers of those currency notes were tallied with pre-trap Panchnama which were found to be the same. A seizure memo of the currency notes was also prepared and the treated currency notes were kept in a sealed envelope. 9. Thereafter, again a fresh solution of sodium carbonate was prepared in which the fingers of the hands of Panch witness Virendra Kumar Sharma were dipped and on dipping his fingers colour of the solution turned to pink which was collected in a separate sealed bottle. Thereafter, a post-trap Panchnama was prepared, the Appellant was arrested and was enlarged on bail at the spot and some documents were seized from his office. 10. After the investigation was over, a charge-sheet was submitted in the Court of learned Special Judge who framed charges punishable under Sections 7, 13(1)(d)/13(2) of the Act which the Appellant denied and requested for the trial. 11. In order to prove the charges, the prosecution examined as many as 13 witnesses and placed Ex.P-1 to Ex.P-39, the documents on record. The defence of the Appellant is of false implication and the same defence he set forth in his statement recorded under Section 313 of Code of Criminal Procedure and in support of his defence, he examined one Gopal Swarnkar as DW-1. 12. The learned Special Judge after appreciating and marshalling the evidence, came to hold that the charges are proved against the Appellant, eventually convicted him and passed the sentence which is mentioned in the impugned judgment. 13. In this manner, this appeal has been filed by the Appellant assailing the judgment of conviction and order of sentence. 14. Vehemently, it has been contended by Shri Gupta, learned Counsel for the Appellant, that in order to hold an accused to be guilty of the offence under Section 13(1)(d) of the Act, it should be proved by the prosecution that there was a motive of making demand of bribe. 14. Vehemently, it has been contended by Shri Gupta, learned Counsel for the Appellant, that in order to hold an accused to be guilty of the offence under Section 13(1)(d) of the Act, it should be proved by the prosecution that there was a motive of making demand of bribe. If the motive is not proved and since it is also borne out from the evidence that Appellant was not having any occasion to make any demand of bribe because the work of the wife of the complainant was already done prior to the date of trap, the Appellant cannot be convicted. In support of his contention, learned Counsel has invited our attention to certain documents and the evidence of prosecution witnesses and has submitted that much prior to the date of actual trap which is 21st August, 2001, the Appellant not only passed the order to make payment of the salary for the months of April to June, 2001, but the payment was also cleared by the Treasury Office, Chachoda, and a cheque was issued for the payment of salary. 15. Learned Counsel further submits that if complaint (Ex.P-1) is read in its true perspective, it would gather that demand of bribe was made to make order of payment of salary for the months of April to June, 2001 which was already made by the Appellant much prior to 20.8.2001 and according to the complainant, the demand was made on 20.8.2001, therefore, the Appellant was not having any occasion to make any demand of bribe since the ball had already gone from his Court. In support of his contention, learned Counsel has placed heavy reliance on the decision of Supreme Court Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211 para 22 which was followed by the Single Bench of this Court in Raj Rajeshwari Nandan Gupta v. Special Police Establishment, Lok Ayukt, Gwalior 2008(1) M.P.H.T. 174 . 16. In support of his contention, learned Counsel has placed heavy reliance on the decision of Supreme Court Ganga Kumar Srivastava v. State of Bihar (2005) 6 SCC 211 para 22 which was followed by the Single Bench of this Court in Raj Rajeshwari Nandan Gupta v. Special Police Establishment, Lok Ayukt, Gwalior 2008(1) M.P.H.T. 174 . 16. Learned Counsel further contended that looking to the evidence of complainant Arun Kumar (PW-1), it is luminously clear that on 21st August, 2001 he did not go to the office of Lokayukta, and therefore, the entire story which has been cooked up by the prosecution that on this date Panch witness Virendra Kumar Sharma read over the complaint to the complainant in high tone in which the demand of bribe is written, is not proved and similarly it is also not proved that pre-trap Panchnama was prepared at Gwalior and if that would be the position the foundation on which the entire story has been built up by the prosecution has become weaken, and therefore, it raises great suspicion about the hallmark of the trap. 17. It has been then contended by learned Counsel that mere recovery of the bribe money would not be sufficient in order to hold the Appellant to be guilty either under Section 7 or under Section 13(1)(d)/13(2) of the Act unless and until the initial burden of making demand of bribe is proved by the prosecution. In support of his contention, learned Counsel has placed reliance on two decisions of Supreme Court Om Prakash v. State of Haryana (2006) 2 SCC 250 and V. Venkata Subbarao v. State represented by Inspector of Police A.P. AIR 2007 SC 489 . 18. By inviting our attention to the evidence of complainant Arun Kumar (PW-1), it has been contended by learned Counsel that it is borne out from his testimony that earlier to the date of trap which is 21.8.2001, on 20.8.2001 this witness with one Constable went to Chachoda with a tape recorder which was handed to him by the Lokayukta officer for recording the conversation of bribe which will take place between the Appellant and the complainant, but neither the script was filed alongwith the charge-sheet, nor any cassette and tape recorder were seized and were proved. The said Constable was also not examined by the prosecution, and therefore, an adverse inference should be drawn against the prosecution and it should be held that it has failed to discharge the initial burden of making demand of bribe by the Appellant. In support of his contention, learned Counsel has placed heavy reliance on the decision of Supreme Court Bal Krishan Sayal v. State of Punjab AIR 1987 SC 689 . 19. The other ground which has been raised by learned Counsel is that as per the statement of complainant, he did not go to Gwalior on 21st August, 2001 and remained in Chachoda, and therefore, the entire case of the prosecution becomes upside down because it is borne out from a note written by Panch witness Virendra Kumar Sharma (PW-2) that complaint of the complainant was read over to the complainant in high tone on 21st August, 2001 which was accepted by him, and therefore, it is also not proved, rather it is proved that pre-trap Panchnama is concocted because the same is said to have been prepared at Gwalior on 21.8.2001 in the office of Lokayukta. Learned Counsel by inviting our attention to the testimony of complainant, has vehemently contended that indeed a post-trap Panchnama was prepared at Chachoda only and not only this, members of trap party carried phenolphthalein powder with them which was not at all necessary and the said action of the trap party poses a big question mark on the authenticity of a fair trap. 20. Learned Counsel further submits that the position of the complainant in trap matters is nothing, but like an accomplice, and therefore, unless and until his testimony is corroborated by other piece of evidence, it would be highly unsafe to place reliance on his testimony and since the evidence of complainant has not been corroborated, the Appellant cannot be convicted. 21. On these premised submissions, it has been argued by learned Counsel that by allowing this appeal, the judgment of conviction and order of sentence be set aside and the Appellant be acquitted from all the charges. 22. 21. On these premised submissions, it has been argued by learned Counsel that by allowing this appeal, the judgment of conviction and order of sentence be set aside and the Appellant be acquitted from all the charges. 22. On the other hand, Shri J.D. Suryawanshi, learned Public Prosecutor, not only argued in support of the impugned judgment, but submitted that it is borne out from the documentary evidence that the salary of the months of April to June, 2001, which was required to be distributed to the wife of complainant who was an employee under him and was serving as Assistant Teacher, was transferred in the account of Block Education Officer much prior to the date of trap. The Appellant, who was serving on this post, was the Drawing and Disbursing Authority, and therefore, he was having an occasion to make demand of bribe, and there was a motive because the amount of salary of complainant's wife for the months of April to June, 2001 had already credited in the account of Block Education Officer and was to be paid to her. 23. Further, it has been submitted by learned Public Prosecutor that even for the sake of argument if it is held that Appellant did not go to the office of Lokayuka in the morning of 21st August, 2001 and was in Chachoda only on that date and joined the trap party on its arrival at Chachoda on 21.8.2001, it will not weaken the case of prosecution because it is borne out from the testimony of complainant that on 21.8.2001 when he went to the office of Appellant by carrying treated currency notes in his pocket, Appellant after receiving complainant, asked whether he has brought the bribe money or not and thereafter the bribe money was handed over to him, and therefore, initial burden of making demand of bribe has been emphatically proved. Learned Public Prosecutor further submits that there is recovery of the bribe money (treated currency notes) from the Appellant which is also corroborated by the chemical test. According to learned Public Prosecutor, the evidence of complainant has been corroborated by overwhelming evidence. Learned Public Prosecutor further submits that there is recovery of the bribe money (treated currency notes) from the Appellant which is also corroborated by the chemical test. According to learned Public Prosecutor, the evidence of complainant has been corroborated by overwhelming evidence. Learned Public Prosecutor by taking aid of Section 20 of the Act, has submitted that if initial burden has been discharged by the prosecution, it was for the accused to prove that how he had received the money and in absence of sufficient explanation given by him, it will be presumed that he had made demand of bribe and accepted the same. On the basis of aforesaid submissions, it has been contended by learned Public Prosecutor that this appeal is devoid of any substance and the same be dismissed. 24. Having heard learned Counsel for the parties, we are of the view that this appeal deserves to be allowed in part. 25. So far as the first contention of learned Counsel for the Appellant that Appellant was not having any motive or occasion to make demand of bribe is concerned, we find that there is overwhelming evidence on record and as per the statement of Accountant Mukut Bihari Prajapati (PW-4) on 17.8.2001 the amount of the salary of the complainant's wife for the months of April to June, 2001 was received and there is overwhelming documentary evidence in this regard from Ex.P-17 to P-22. If we go through Ex.P-16, we find that the Treasury Officer, Chachoda, wrote a letter to Branch Manager, State Bank of Indore, that cheque No. 118/13.8.2001 is being sent alongwith the letter to the office of Block Education Officer, Chachoda. Needless to say, the Appellant was holding the office of Block Education Officer, and therefore, the amount of the salary for the months of April to June 2001 was credited in the account of Block Education Officer, and therefore, Appellant was having a motive as well as he has having an occasion to make demand of bribe for making the payment of salary for the months of April to June, 2001. 26. The question would now rest whether the prosecution has 14Cr.A. 125/03 been able to prove the initial burden of making demand of bribe or not. 26. The question would now rest whether the prosecution has 14Cr.A. 125/03 been able to prove the initial burden of making demand of bribe or not. So far as reading over the complaint by Panch witness Virendra Kumar Sharma (PW-2) in the office of Lokayukta on 21st August, 2001 and preparation of pre-trap Panchnama as well as pre-demonstration of change of colour of chemical solution etc. and other formalities in the office of Lokayukta at Gwalior are concerned, there are two set of evidence. One set of evidence is of complainant who was not declared hostile and who categorically says that on 20th August, 2001 he came to Chachoda alongwith the tape recorder and a Constable to record the conversation between him and the Appellant and thereafter he did not go to Gwalior on 21st August, 2001 and further says that endorsement and the note made by Panch witness Virendra Kumar Sharma (PW-2) on his complaint (Ex.P-1) that it was read over to him in high tone and after reading it, he accepted the complaint to be true, was not done in his presence at Gwalior. It is borne out from the evidence of complainant that a pre-trap Panchnama was not prepared at Gwalior, but it was prepared in the rest house at Khatkiya from where he was sent to the office of Appellant to hand over the bribe money. It is also borne out from his testimony that a packet of phenolphthalein powder was brought by the members of trap party at Khatkia rest house. The other set of evidence is of Panch witness Dr. Virendra Kumar Sharma (PW-2), Head Constable Bhagvati Prasad Sharma (PW-5), Constable Ummed Singh (PW-7), Panch witness V.K. Bhargava (PW-10), Inspector Ramlakhan Singh Bhadauria (PW-12) and Inspector Arvind Khare (PW-13) that the complainant Arun Kumar (PW-1) was present in the morning of 21.8.2001 in the office of Lokayukta at Gwalior and the complaint was read over to him by Panch witness Virendra Kumar Sharma (PW-2) in high tone and after hearing its contents, the complainant accepted it to be true and further all these witnesses have said that the trap party was constituted and a pre-trap Panchnama was also prepared. The phenolphthalein powder was also applied on the treated currency notes in the office of Lokayukta at Gwalior and all the members of trap party including the complainant went by government vehicles to Khatkiya where they reached at 2.30 p.m. 27. Thus, there are two set of evidence contradictory to each other on material points and on the genesis of occurrence, and therefore, it is difficult to arrive at a conclusion that whether the complaint was read over to the complainant on 21.8.2001 at Gwalior and pre-trap Panchnama etc. were prepared at Gwalior, or the members of trap party by carrying the phenolphthalein powder proceeded to Khatkiya where the complainant was waiting for their arrival and all these things were done at rest house of Khatkiya. Be that as it may, since it is borne out from the testimony of complainant that when he went to the office of the Appellant on 21.8.2001 Appellant after receiving him, took him to his chamber where he made demand of bribe from him, as a result of which, the complainant took out the treated currency notes and handed over to the Appellant and after saying Namste (good bye), he came out and gave signal to the members of trap party. Thus, according to us, the initial burden of making demand of bribe has been proved from the evidence of complainant. Unfortunately, there is no cross-examination on this material point, and therefore, from the evidence of complainant, the initial burden of making demand of bribe has been successfully proved by the prosecution. 28. So far as the contention of learned Counsel for the Appellant that testimony of complainant is not corroborated by other evidence is concerned, we find that this argument has no merit for two reasons. Firstly, phenolphthalein powder test which was conducted immediately thereafter, was found to be positive and this is a corroborative piece of evidence and secondly there is recovery of bribe money and there is absolutely no explanation offered by the Appellant that how he had received the bribe money or how he had come in contact with the treated currency notes. Firstly, phenolphthalein powder test which was conducted immediately thereafter, was found to be positive and this is a corroborative piece of evidence and secondly there is recovery of bribe money and there is absolutely no explanation offered by the Appellant that how he had received the bribe money or how he had come in contact with the treated currency notes. Apart from this, the testimony of complainant Arun Kumar (PW-1) is corroborated from the evidence of Panch witness Virendra Kumar Sharma (PW-2) who conducted the phenolphthalein powder test on the fingers of the hands of the Appellant which was found to be positive and thereafter he took out the treated currency notes from the pocket of trousers of the Appellant and those treated currency notes were tallied with pre-trap Panchnama and they were found to be the same which were handed by the complainant to the members of trap party for coating phenolphthalein powder. 29. From the evidence of Constable Ummed Singh (PW-7) and Head Constable Bhagvati Prasad (PW-5) as well as from the evidence of other members of trap party Ramlakhan Singh Bhadauria (PW-12) and Arvind Khare (PW-13), it is proved that bribe money was recovered from the pocket of the trousers of Appellant and since there is absolutely no explanation given by the Appellant, the statutory presumption as envisaged under Section 20 of the Act would come into play and it will be presumed that Appellant has taken the bribe. We have already held hereinabove that there was a motive of making demand of bribe by the Appellant. 30. In the above-said backdrop and circumstances, the decisions placed reliance by learned Counsel for the Appellant are not applicable. According to us, learned Special Judge did not commit any error in arriving at the conclusion that the Appellant has committed the offence under Sections 7, 13(1)(d)/13(2) of the Act. The conviction of the Appellant for the said charges is hereby affirmed. 31. Yet there is another facet of the matter. Certainly, now the Appellant would lose his job if already he has not been dismissed from the service, and therefore, we would like to pass some lenient sentence which would not be less to the minimum sentence. Accordingly, we sentence the Appellant for one year R.I. with a fine of Rs. 31. Yet there is another facet of the matter. Certainly, now the Appellant would lose his job if already he has not been dismissed from the service, and therefore, we would like to pass some lenient sentence which would not be less to the minimum sentence. Accordingly, we sentence the Appellant for one year R.I. with a fine of Rs. 1,000/-for each offence with a defaulting clause that in case of failure to deposit the fine amount, Appellant shall undergo further six months S.I. Needless to say, all the sentences shall run concurrently. 32. For the reasons stated hereinabove, this appeal is allowed in part to the extent indicated hereinabove. The Appellant is on bail, his bail bonds shall stand cancelled after he offers his surrender before learned Special Judge on or before 10th January, 2011, failing which learned Special Judge shall issue arrest warrant against him and also take action against his surety. If Appellant surrenders on or before 10th January, 2011, he shall be sent to jail to serve out his jail sentence and thereafter only his bail bonds shall stand cancelled. Learned Special Judge is further directed to intimate the Registry of this Court about the factum of sending the Appellant to jail. The Registry is hereby directed to send the record posthaste so as to reach learned Special Judge on or before 31.12.2010 and the original bail bonds of Appellant be also sent to learned Special Judge and a photocopy thereof be retained in the record of this file.