JUDGMENT Gulab Singh Solanki, J. 1. The appellant has filed this appeal against the judgment dated 9.1.2001 passed by the Special Judge (Prevention of Corruption Act), Jabalpur in Special Case No. 3/1999, convicting him under Sections 7 and 13(1)(d) read with Section 13(2) of Prevention of Corruption Act and sentencing him to rigorous imprisonment for two years with fine of Rs. 3,000/-, in default, rigorous imprisonment for six months; and rigorous imprisonment for two years with fine of Rs. 3,000/-, in default, rigorous imprisonment for six months respectively. Substantive sentences directed to run concurrently. 2. It is not disputed that appellant Jagdish Chandra Raikwar was posted as Revenue Inspector (Nazul) on 26.12.1976. It is also undisputed that he was a member of survey party constituted under Scheme called Rajeev Gandhi Ashray Yojana, to grant Patta to Urban Homeless Poor Persons, who were living before 31.5.1998. 3. In short, the prosecution case is that complainant Shiv Balak Patel (PW4) was living in the hut which was situated, on Nazul Land, at Bagda-dafai, Polipathar, Jabalpur. His hut was damaged in earth quake, in the year of 1997. He was constructing a house at the same place, where his hut was situated earlier. In the month of May 1998, appellant Jagdish Chandra Raikwar surveyed this area and threatened complainant to demolish his under construction house. 4. On 24.8.98, complainant Shiv Balak (PW4) requested the appellant to grant him Patta but appellant/accused demanded bribe of rupees five thousand for this purpose. Complainant was not interested to give bribe, therefore, on 25.8.98 he lodged a written report Ex.P/20 to the Superintendent of Police, Special Police Establishment (Lokayukt), Jabalpur. A tape recorder and cassette were provided to complainant Shiv Balak for recording the conversation regarding demand of bribe. On same day complainant Shiv Balak again met appellant in his Office at Room No. 20 of Collectorate and recorded the conversation about demand of bribe. Appellant demanded rupees five thousand, which first installment was to be paid on 26.8.98. Complainant Shiv Balak deposited the above mentioned tape recorder and cassette on 26.8.1998 in the office of Superintendent of Police, Special Police Establishment, Lokayukt, Jabalpur. 5. M.B.S. Jaggi (PW12), DSP, Special Police Establishment (Lokayukt) called panch witnesses Ramesh Singh Jain (PW3) and G.R. Chandoriya (PW1), who verified the complaint Ex.P/20, and a transcript Ex.P/1 was prepared, from recorded cassette. Then crime was registered vide Ex.P/27. 5. M.B.S. Jaggi (PW12), DSP, Special Police Establishment (Lokayukt) called panch witnesses Ramesh Singh Jain (PW3) and G.R. Chandoriya (PW1), who verified the complaint Ex.P/20, and a transcript Ex.P/1 was prepared, from recorded cassette. Then crime was registered vide Ex.P/27. Complainant gave two currency notes of denomination of Rs. 500/- and ten currency notes of denomination of Rs. 100/-. Panchnama Ex.P/4 was prepared in this regard. Initial of Panch witness Ramesh Chandra was taken on the currency notes, and notes were treated with phenolphthalein powder. Preliminary Panchnama Ex.P/7 was prepared. Complainant was instructed to give signal after acceptance of bribe by appellant. 6. On 26.8.98 at about 1.10 trap was arranged. On the signal of complainant Shiv Balak (PW4) trap party along with Panch witnesses entered in the room of appellant, then complainant Shiv Balak told that he gave currency notes to co-accused Kanhaiyalal Burman (acquitted) on the instruction of appellant Jagdish Chandra Raikwar. Appellant took currency notes from co-accused Kanhaiyalal and concealed them underneath his seat. He further informed that appellant Jagdish Chandra Raikwar got his three signatures on Patta and in concerning register. Trap party caught hold appellant and prepared the solution of Sodium Carbonate, in which hands of appellant Jagdish Raikwar and coaccused Kanhaiyalal were washed, color of solution turned light pink. Same was filled in bottles. Bottles were sealed in presence of Panch witnesses. Panch witness Ramesh Chandra Jain (PW3) took currency notes out from underneath the seat of appellant which bore the initials of panch witnesses and tallied with numbers of preliminary panchnama. Thereafter same were seized vide memo Ex.P/9. 7. M.B.S. Jaggi (PW12), Investigating Officer, seized an application of complainant Shiv Balak (PW4) regarding grant of Patta, two photographs of complainant and one photograph of complainant's wife Shakuntala, Survey Book regarding Rajeev Gandhi Scheme 1998, from the possession of appellant and prepared the seizure memo Ex.P/14. A diary from possession of the appellant was also seized vide Ex.P/15. Appellant was arrested vide Ex.P/17. Panchnama of whole proceedings was prepared vide Ex.P/18. Bottles of solution seized during trap proceeding were sent to Forensic Science Laboratory, Sagar vide memo Ex.P/13. Assistant Chemical Examiner of FSL, Sagar opined vide report Ex.P/34, presence of phenolphthalein and sodium carbonate, in the solution, said to be of washed hands of the appellant and co-accused Kanhaiyalal. After getting prosecution sanctioned vide Ex.P/19, appellant and co-accused were charge-sheeted. 8. Bottles of solution seized during trap proceeding were sent to Forensic Science Laboratory, Sagar vide memo Ex.P/13. Assistant Chemical Examiner of FSL, Sagar opined vide report Ex.P/34, presence of phenolphthalein and sodium carbonate, in the solution, said to be of washed hands of the appellant and co-accused Kanhaiyalal. After getting prosecution sanctioned vide Ex.P/19, appellant and co-accused were charge-sheeted. 8. Learned Special Judge framed charges under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act against appellant. He abjured his guilt and pleaded that he was not competent to issue Patta in favour of complainant. He never demanded bribe and stated that trap money was never recovered from his possession. He further stated that house of complainant was constructed after 31.5.98 and it was encroachment on the Nazul land. He reported the matter to Collector, Jabalpur in July 1998 thereby Revenue Case No. 58/A-68/97-98 was registered under Section 148 M.P. Land Revenue Code against complainant. He was convicted and sentenced to pay fine of Rs. 500/-. An order of dispossession was passed against him. Due to this fact complainant had grouse/malice against him. According to him, complainant Shiv Balak (PW4) was not entitled to get Patta and he never filled form in this regard. He further stated that an unknown person inquired about S.D.M. Office and shook hands with him. Just after this incident, he was trapped and falsely implicated. 9. After appraisal of the evidence on record, learned Special Judge acquitted the co-accused Kanhaiyalal Burman of the charge levelled against him and convicted and sentenced appellant/accused as mentioned above. 10. Learned Counsel for the appellant submitted that appellant was not competent to grant Patta as well as complainant Shiv Balak (PW4) was not entitled to get Patta, therefore, there was no opportunity to receive bribe and prosecution failed to prove motive. He further contended that bribe money was not seized from possession of the appellant. Since complainant Shiv Balak was convicted on the encroachment report of appellant, therefore due to enmity complainant concocted false story of trap. 11. On the other hand, learned Counsel for the State justified and supported the impugned judgment and the finding of the trial Court. 12. We have perused the impugned judgment, evidence and the other materials on record. 13. We consider the submissions made by learned Counsel for appellant one by one. 11. On the other hand, learned Counsel for the State justified and supported the impugned judgment and the finding of the trial Court. 12. We have perused the impugned judgment, evidence and the other materials on record. 13. We consider the submissions made by learned Counsel for appellant one by one. (First submission was that appellant was not competent to grant Patta as well as complainant Shiv Balak (PW4) was not entitled to get the Patta). 14. Santosh Kumar Sharma (PW8) stated that in 1998 Collector, Jabalpur vide order Ex.P/24, appointed him as incharge of survey party regarding grant of Patta in Polipathar area. Appellant/accused Jagdish Chandra Raikwar was a member of survey party. During survey they found that house of complainant Shiv Balak (PW4) was under construction. They measured the plot area of his house and prepared the map. According to him, appellant/accused was doing the work of filling up the form. Santosh Kumar admitted that since house of Shiv Balak was under construction, therefore, Shiv Balak (PW4) did not fill up the form. He admitted that as per rule Shiv Balak was not entitled to get Patta. He further admitted that they have to submit survey report to Collector, who may grant Patta after verification of survey report. 15. Sharda Pillai (PW5) stated that house of Shiv Balak was damaged due to earth quake on 22.5.1997. During survey appellant/accused had come in his Mohalla. Photograph of Shiv Balak was prepared and a form regarding grant Patta was also filled up by Shiv Balak. He admitted that Shiv Balak was a tenant of Laxman Kol. 16. Hanuman Prasad Patel (PW6) deposed that appellant/accused surveyed his Mohalla, in connection of grant of Patta. He also deposed that house of Shiv Balak was damaged in earth quake. He admitted that Shiv Balak was trying to construct new house on Government land. 17. Hanuman Prasad Patel (PW6) and Sharda Pillai (PW5) are the witnesses of Mohalla committee which was constituted during survey of Polipathar area. Therefore, this fact is established from their statements that appellant/accused was a member of survey party and he was the only person who filled up the forms in connection with grant of Patta. It is also established by the evidence of Santosh Kumar Sharma (PW8) that plot of Shiv Balak was measured and a map was prepared in this regard. Therefore, this fact is established from their statements that appellant/accused was a member of survey party and he was the only person who filled up the forms in connection with grant of Patta. It is also established by the evidence of Santosh Kumar Sharma (PW8) that plot of Shiv Balak was measured and a map was prepared in this regard. This fact further finds support from the field book which was seized from the office of appellant. At item No. 28 of field book, an entry of measurement of complainant's house was made with the remark that house was found under construction. 18. As Santosh Kumar Sharma (PW8), admitted that complainant Shiv Balak was not entitled to get Patta, and process of Patta was to be started after submission of the survey report, it shows that at the time of survey, appellant/accused was not competent to grant Patta. But from the evidence of Mohalla Samiti Members Sharda Pillai (PW5) and Hanuman Prasad Patel (PW6), it is proved that appellant/accused was an important member of survey party who filled up the forms regarding Patta and his field book showed that he measured the disputed house and a map was also prepared. 19. In these circumstances, members of Mohalla Samiti and the complainant were under impression that appellant is an important person, whose report is helpful in getting Patta. In same facts situation, in AIR 1968 Kerala 60 Cherian Lukose v. State of Kerala, the Kerala High Court observed that though nurse was not competent to allot the bed but her role for allotment of bed was important and general public had an impression that she was important person who could help in allotment so to offer bribe to her. 20. Same position is in the instant case. Though appellant/accused was not competent to grant Patta but he was an important person in survey party, who filled up the forms, therefore, complainant and other members of Mohalla, had an impression that appellant will be the helpful person in the process of granting the Patta. This fact further finds support from the register and the blank form of Patta on which appellant took the signature of complainant, which was seized from the possession of appellant/accused vide Ex.P/14. In these circumstances, it cannot be said that there was no opportunity or motive to receive the bribe by appellant/accused. 21. This fact further finds support from the register and the blank form of Patta on which appellant took the signature of complainant, which was seized from the possession of appellant/accused vide Ex.P/14. In these circumstances, it cannot be said that there was no opportunity or motive to receive the bribe by appellant/accused. 21. Learned Counsel for the appellant argued that signatures of complainant on register and blank form were taken by investigating officer to cook up the case against appellant, but investigating officer, M.B.S. Jaggi (PW12) specifically stated that he seized the said documents from the possession of appellant/accused in presence of Panch witnesses. Panch witnesses G.R. Chandoria (PW1) and Ramesh Chandra Jain (PW3) also supported his version. This fact substantially corroborated by panchnama which was prepared during course of trap. In these circumstances, argument of learned Counsel has no force. 22. On the contrary, learned Counsel for the State argued that despite knowing the fact that complainant was not entitled to get Patta, by getting signatures and photographs of complainant, appellant/accused tried to mislead him for squeezing out the money. 23. Learned Counsel for the appellant argued that prosecution has utterly failed to prove demand and acceptance of bribe. He relied on following pronouncements of Apex Court AIR 1994 SC 1538 Babulal Bajpai v. State of U.P. 2005 (6) SCC 211 Ganga Kumar Shrivastava v. State of Bihar 2003 SCC (Cri) 1008 State of U.P. v. Jagdish Singh Malhotra AIR 2000 SC 3377 Smt. Meena Balwant Hemke v. State of Maharashtra and 2007 (8) SCC 309 G.S. Naik v. State of Karnataka. 24. On the other hand, learned Counsel for the respondent/State submitted that when it is proved that there was voluntarily and conscious acceptance of money by the accused, there is no further burden cast on prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances of particular case. He relied on 2006 (12) SCC 277 B. Noha v. State of Kerala and Anr.. 25. It is true that in the present case conversation regarding demand of bribe, recorded in cassette was not audible before the Court. However complainant Shiv Balak (PW4) deposed that after measuring his disputed house appellant/accused called him in his office. When he met him he demanded Rs. 5,000/- in lieu of granting the Patta. 25. It is true that in the present case conversation regarding demand of bribe, recorded in cassette was not audible before the Court. However complainant Shiv Balak (PW4) deposed that after measuring his disputed house appellant/accused called him in his office. When he met him he demanded Rs. 5,000/- in lieu of granting the Patta. He further deposed that despite his request appellant did not agree to reduce the amount, he gave Rs. 2,000/- to him and for remaining amount of Rs. 3,000/- he agreed to be given after making the Patta. He made a complaint to Lokayukt Police vide complaint Ex. P/20 for the said purpose. After deposing above mentioned facts in chief examination, his cross-examination was deferred on the request of appellant/accused and after three months he resiled from his statement and deposed that appellant did not demand money from him but some other person demanded money, but he admitted his signature on report Ex.P/20 as well as on re-examination by prosecutor, he admitted that report Ex.P/20 was lodged by him and a cassette for recording the conversation regarding demand of bribe was provided him by Lokayukt Police. After recording the conversation he filed the application Ex.P/2 before the Lokayukt Police. 26. Ramesh Chandra Jain (PW3) corroborated the version of complainant and deposed that application Ex.P/2 was read over by him to complainant. He had made an endorsement with his signature on the same. Another panch witness G.R. Chandoriya (PW1) deposed that complainant told him that appellant Jagdish Chandra Raikwar demanded money for granting the Patta therefore, he wanted to get him trapped red handed. First report lodged by complainant is Ex.P/20 and Ex.P/2 is the second application filed by complainant after recording of the cassette. They substantially corroborate the demand of bribe by appellant/accused. This fact stands further corroborated by M.B.S. Jaggi, Investigating Officer (PW12), who registered the offence vide Ex.P/27 on the basis of Ex.P/2, application filed by complainant Shiv Balak (PW4). In these circumstances, despite non-audibility of cassette, the fact of demanding bribe is established by the oral evidence of complainant and panch witnesses. 27. Now we have to examine that whether prosecution succeeded in proving the fact of acceptance? In these circumstances, despite non-audibility of cassette, the fact of demanding bribe is established by the oral evidence of complainant and panch witnesses. 27. Now we have to examine that whether prosecution succeeded in proving the fact of acceptance? Complainant Shiv Balak (PW4) stated in his examination-in-chief that when trap was arranged he gave the currency notes to trap party, notes were smeared with phenolphthalein powder and preliminary panchnama vide Ex.P/7 was prepared before panch witnesses. This fact was corroborated by investigating officer, M.B.S. Jaggi (PW12) and panch witnesses G.R. Chandoria (PW1) and Ramesh Chandra Jain (PW3). Further complainant deposed that when he reached to the room of appellant, he was not on his seat so he waited; after five minutes appellant Jagdish returned to his seat, then he gave him bribe notes of Rs. 2,000/-. Appellant directed co-accused Kanhaiyalal to count them, who after counting returned same to the appellant. According to complainant Shiv Balak (PW4), on his signal the trap party came and caught him. He further stated that bribe notes were seized from drawer of seat of appellant. 28. Investigating Officer, M.B.S. Jaggi (PW12), Panch witness Ramesh Chandra Jain (PW3) and other panch witness G.R. Chandoriya (PW1), categorically stated that on signal of complainant, they entered into room and caught hold of the appellant and co-accused Kanhaiyalal and after inquiry trap party seized the bribe money kept underneath of the seat of appellant and prepared the seizure memo Ex.P/9. Investigating Officer, M.B.S. Jaggi further stated that fingers of appellant Jagdish were washed in the solution of Sodium Carbonate which turned to light pink which was filled in bottle, same was sealed and seized vide seizure memo Ex.P/8. This fact was corroborated by panch witnesses G.R. Chandoria (PW1) and Ramesh Chandra Jain (PW3). Despite turning hostile complainant also supported this fact in his statement in para-13. 29. Regarding seizure of money from the seat of appellant, there are some variations in the statements of panch witnesses and investigating officer. Panch witnesses G.R. Chandoriya (PW1) and Ramesh Chandra Jain (PW3) admitted that they did not know about the fact that seat belonged to the appellant from where the notes were seized, but investigating officer, M.B.S. Jaggi (PW12) specifically stated that bribe money was seized from the seat of appellant, complainant Shiv Balak (PW4) stated that money was seized from drawer of the seat of appellant. Presence of phenolphthalein powder was found in fingers of appellant during the trap process which was substantially proved by investigating officer M.B.S. Jaggi (PW12) and panch witnesses G.R. Chandoriya (PW1) and Ramesh Chandra Jain (PW3) and by FSL report of Chemical Examiner Ex.P/34 and further corroborated by final panchnama which was prepared at the time of trap. In these circumstances, the question that seat belonged to whom became immaterial. 30. Learned Counsel for the appellant argued that complainant was declared hostile by prosecution, hence his testimony had no value. It is true that complainant was declared hostile by prosecution but after completing his examination-in-chief, cross examination was deferred on the request of appellant/accused. His examination-in-chief was completed on 2.11.1999 and he was cross examined on 7.8.2000; approximately after three months. Trial Court held that complainant was won over by appellant, following the principle laid down by Hon'ble Apex Court in AIR 1991 SC 1853 Khujji @ Alias Surendra Triwari v. State of Madhya Pradesh. We are also of the view that complainant was won over by appellant and he tried his level best to escape from criminal liability. 31. Moreover despite being hostile, complainant Shiv Balak admitted in his cross-examination (para-13) that when hands of appellant were washed in colorless solution, same turned to light pink. This admission lends assurance that fingers of appellant were washed in Sodium Carbonate and color of solution was turned to pink at the time of trap proceeding. He thus supported the factum of acceptance of bribe by the appellant. 32. Learned Counsel for the appellant argued that complainant Shiv Balak (PW4) admitted hand shaking with appellant and there is a possibility that accused could have also come into contact with the particles of phenolphthalein. He placed reliance on Meena Balwant Hemke's Case (supra). The facts of that case were different. In that case accused pushed away the phenolphthalein treated currency notes by his hands during process of seizure, but such facts are not in instant case. Firstly complainant Shiv Balak (PW4) admitted the fact of hand shaking, after he turned hostile, secondly preliminary plea of appellant was that an unknown person shook hands with him just before trap proceeding. It is to be noted that complainant was not unknown to appellant because appellant knew him since survey and encroachment proceeding. In these circumstances, plea of shaking hands with complainant is clearly an after thought. It is to be noted that complainant was not unknown to appellant because appellant knew him since survey and encroachment proceeding. In these circumstances, plea of shaking hands with complainant is clearly an after thought. 33. In Babulal Bajpai's Case (supra) complainant tried to thrust money in pocket of accused, who resisted and threw the same on floor. This version of accused was supported by independent witnesses. Clubbed with the facts that no bill of complainant/contractor was pending with accused, in above said fact situation, Hon'ble Apex Court allowed the appellant's appeal. Facts of the instant case are not identical to above case as we discussed hereinabove that in this case appellant obtained money from complainant by giving impression that he is helpful in granting the Patta. 34. In Ganga Kumar Shrivastava's case (supra) phenolphthalein powder was not used during trap, therefore, oral evidence which was dubious in character, was not found reliable, but in instant case phenolphthalein powder was not only used but presence of phenolphthalein was found in the solution of hand wash of appellant. 35. In State of U.P. v. Jagdish Singh Malhotra's case (supra) plea of accused was that he shook hands with the officers of trap party and phenolphthalein crystals could have come on his hands during that time, but such facts are not in instant case. As well as we have discussed hereinabove that appellant himself took a different plea that he shook hands with unknown person. In these circumstances, ratio of this case is not applicable to the facts of instant case. 36. In G.S. Naik's Case (supra) currency notes smeared with phenolphthalein powder had not been touched by appellant. Moreover, Hon'ble Apex Court observed that finding of facts arrived at by trial court on appreciation of evidence was a possible view and, therefore, High Court in appeal, against acquittal was not justified in interfering therewith on the ground that a different view was possible. In this case, presence of phenolphthalein was found in wash of hand of appellant. We are not differing with the view taken by trial Court, therefore, ratio of this case is not applicable to instant case. 37. Last contention of learned Counsel for the appellant was that since complainant Shiv Balak (PW4) was convicted on the encroachment report of appellant, therefore, due to enmity he falsely implicated the appellant. 38. We are not differing with the view taken by trial Court, therefore, ratio of this case is not applicable to instant case. 37. Last contention of learned Counsel for the appellant was that since complainant Shiv Balak (PW4) was convicted on the encroachment report of appellant, therefore, due to enmity he falsely implicated the appellant. 38. K.K. Tripathi (DW2) deposed that complainant Shiv Balak (PW4) was convicted in encroachment case and fine of Rs. 500/- was imposed on him under Section 148 of M.P. Land Revenue Code. He further stated that encroachment was reported by appellant Jagdish Chandra Raikwar on 1.7.1998 vide report Ex.D/2 but he admitted that final judgment of Tehsildar was passed on 5.6.2000, it means after two years of incident, therefore, it cannot be said that complainant was convicted before the incident. However, it is proved that appellant reported encroachment of complainant on Nazul land, but, as we have discussed hereinabove that despite encroachment appellant measured disputed under-constructed house of complainant and gave an impression that he may be helpful in granting the Patta. In these circumstances, it cannot be said that appellant was falsely implicated due to enmity. 39. Learned Counsel for the appellant also argued that Panch witnesses Ramesh Chandra Jain (PW3) and G.R. Chandoria (PW1) admitted that they were the panch witnesses in two three cases, therefore they were not independent witnesses and their testimony could not be accepted. He relied on AIR 1992 SC 644 Ayyasami v. State of Tamil Nadu and AIR 1974 SC 218 Darshan Lal v. The Delhi Administration. In Darshanlal's case (supra), panch witness was a partisan witness and a complaint against him was being investigated by the appellant/accused but such situation is not in the instant case. 40. In Ayyasami's case (supra), the chemical solution was not turned pink and there was no independent witness of recovery, but in instant case chemical solution turned light pink and this fact stood duly corroborated by the version of complainant, panch witnesses and investigating officer. Being panch witnesses in two three cases, is itself not a ground to discard the testimony of independent witnesses. 41. On careful scanning of evidence on record, we find that there was voluntarily acceptance of money by the appellant/accused, hence there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. Being panch witnesses in two three cases, is itself not a ground to discard the testimony of independent witnesses. 41. On careful scanning of evidence on record, we find that there was voluntarily acceptance of money by the appellant/accused, hence there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. From the facts and circumstances of the case, it can be safely deduced that appellant/accused by giving impression that he is an important person during process of granting Patta, obtained bribe money from complainant. 42. Further there is no case of appellant/accused that said amount was received by him as the amount which he was legally entitled to receive or collect from complainant Shiv Balak (PW4). 43. As it was held by Apex Court in State of A.P. Vs. Kommaraju Gopala Krishna Murthy 2009 (9) SCC 752 that when an amount is found to have been passed to the public servant, the burden is on public servant to establish that it was not by way of illegal gratification. Such burden was not discharged by the appellant/accused in this case. 44. In these circumstances, in our opinion, the prosecution succeeded in proving the demand and acceptance of bribe money by appellant/accused and trial Court did not commit any error in recording the finding of conviction against the appellant/accused, therefore, we affirm the finding of conviction recorded by the trial Court. 45. Regarding sentence, considering the nature of the accusations, it would be appropriate to reduce the sentence of appellant to the minimum prescribed under the statute. In other words it shall be six months rigorous imprisonment for Section 7 and one year rigorous imprisonment for Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. Sentence of fine is affirmed. Both the sentences of imprisonment shall run concurrent. 46. The appeal is dismissed, except to the extent of modification of sentence as noted above.