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2011 DIGILAW 802 (MP)

Ramnarayan v. State of M. P.

2011-07-22

M.A.SIDDIQUI, RAKESH SAKSENA

body2011
JUDGMENT Rakesh Saksena, J. 1. The Judgment of the Court was delivered by :-Appellant has filed this appeal against the judgment dated 23.9.1998, passed by Special Judge, Lokayukta, Jabalpur, in Special Criminal Case No.7/1993, convicting the appellant under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentencing him to rigorous imprisonment for six months with fine of Rs.500/ - and rigorous imprisonment one year with fine of Rs.500/-, on each count respectively. 2. According to prosecution, at the relevant time i.e. on 25.1.1988, appellant was posted as Reader in the Court of Naib Tahsildar, Badwara. A case under Section 107, 116 of the Indian Penal Code was pending against the complainant Namai (PW-1) in the Court of Tahsildar, Badwara. It is said that appellant demanded Rs.50/- from the complainant for dropping the said proceedings against him. He asked him to bring Rs.50/- on the next date of hearing i.e. on 25.1.1988. Being aggrieved, complainant went to the office of Special Police Establishment, Jabalpur Division, and submitted a written complaint (Ex.P/1) to the Superintendent of Police (Lokayukta). A trap was arranged and in the presence of Dy. Superintendent of Police and other witnesses, appellant was caught in the Tahsil court taking illegal gratification of Rs.50/-. After further investigation and obtaining the requisite sanction from the Government, charge sheet was filed against the appellant in the court of Special Judge. 3. Appellant pleaded false implication. According to him, complainant gave him Rs.50/- currency note for obtaining change, but concocted a false story of giving bribe at the instance of Narayan Prasad and Rohini Prasad. 4. Learned Special Judge framed the charges under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988, and upon trial and appreciation of evidence on record, held the appellant guilty and convicted and sentenced him as mentioned above. 5. It is important to note that the offence in question was committed by the appellant on 25.1.1988 and the Special Police had registered the offence under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (for short 1947 Act). 5. It is important to note that the offence in question was committed by the appellant on 25.1.1988 and the Special Police had registered the offence under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 (for short 1947 Act). On the date of alleged offence Prevention of Corruption Act, 1988 was not in force, yet, the appellant was charged and convicted under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988. Admittedly it came into force after 9th September 1988 when it received the assent of the President of India and thereafter published in the Gazette of India (Extraordinary) (Part-II) Sec. 1 dt. 12.9.1988. Therefore, the question, though not raised by appellant, is whether the charges framed against the appellant under Section 7, 13(1(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short 1988 Act) and consequent trial are vitiated. At the same time, it is also required to be considered whether a person who committed the offence should merely on this ground go unpunished. Apparently the trial Court committed a mistake in framing the charges under Section 7, 13(1)(d) read with Section 13(2) of the 1988 Act, instead it ought to have framed charges under Section 161 of IPC and Section 5(1)(d) read with Section 5(2) of the 1947 Act. 6. A perusal and comparison of the penal provisions under previous law and present law is necessary. Section 7 of the 1988 Act' and Section 161 of the Indian Penal Code are as under:- Section 7 of the 1988 Act Section 161 of the IPC 7. 6. A perusal and comparison of the penal provisions under previous law and present law is necessary. Section 7 of the 1988 Act' and Section 161 of the Indian Penal Code are as under:- Section 7 of the 1988 Act Section 161 of the IPC 7. Public servant taking gratification other than legal remuneration in respect of an official act:- Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State of with any local authority, Corporation or Government company referred to in clause (c) of Section 2 or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. 161. Public Servant taking gratification other than legal remuneration in respect of official act:- Whoever, being or expecting to be a public servant, accepts or obtains, or agrees to accept, or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in exercise of his official functions, favour or disfavour to any person, or for rendering or attempting to render any service or disservice to any person, with the Central or any State Government or Parliament or the Legislature of any State or with any local authority, Corporation or Government Company referred to in Section 21 or with any public servant, as such, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Thus, on a bare perusal of the aforesaid two provisions-it is apparent that except the provisions pertaining to the quantum of punishment both the provisions are identical. Thus, on a bare perusal of the aforesaid two provisions-it is apparent that except the provisions pertaining to the quantum of punishment both the provisions are identical. The words 'with imprisonment of either description for a term which extends to three years or with fine or with both' of Section 161 IPC, are replaced by the words 'with imprisonment which shall not be less than six months but which may extend to five years and shall also be liable to fine' in 1988 Act'. Thus, the maximum sentence for this offence has been raised from three years to five years and minimum sentence of six months has been made compulsory. It is relevant to refer to Article 20(1) of the Constitution of India, which provides as under: 20(1) No person shall be convicted of any offence except for violation of law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence. 7. As far as Section 5(1)(d) read with Section 5(2) of the 1947 Act and Section 13(1)(d) read with Section 13(2) of the 1988 Act are concerned, the provisions of Section 5(1)(d) and Section 13(1)(d) are parimateria involving the same ingredients, though in 1988 Act Section 13(1)(d) has been dissected in three parts. It would be relevant to quote Section 13(1)(d) of the 1988 Act and Section 5(1)(d) of the 1947 Act as under: Section 13(1)(d) of the 1988 Act Section 5(1)(d) of the 1947 Act Section 13. Criminal misconduct by a public servant:- (1) A public servant is said to commit the offence of criminal misconduct,- (d) If he, - (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or Section 5. Criminal misconduct in discharge of official duty:-(1) A public servant is said to commit the offence of criminal misconduct- (d) if he, by corrupt or illegal means or by otherwise abusing his position as public servant, obtains for himself or for any other person valuable thing or pecuniary advantage; or However, there is substantial difference between the provisions of Section 13(2) of the 1988 Act and Section 5(2) of the 1947 Act, which reads as under: Section 13(2) of the 1988 Act Section 5(2) of the 1947 Act Section 13 (2) Any public servant who commits criminal misconduct shall be punishable with imprisonment for term which shall be not less than one year but which may extend to seven years and shall also be liable to fine. Section 5 (2) Any public servant who commits criminal misconduct [****] shall be punishable with imprisonment for a term which shall not be less than one year but which may extend to seven years and shall also be liable to fine: Provided that the Court may, for any special reasons recorded in writing, impose a sentence of imprisonment of less than one year. Under Section 13(2) of the new Act corresponding to Section 5(2) of the old Act the minimum imprisonment of one year prescribed in the old Act is retained and at the same time the discretion given to Special Judge to impose a sentence of imprisonment for less than one year for a special reason has been taken away by omitting the proviso to Section 5(2) of the old Act. Thus, except the provision pertaining to the punishment provided in Section 161 of the IPC, Section 5(2) of the old Act and Section 13(2) of the new Act, the basic ingredients constituting the offence are same. Therefore, the question would be whether the appellant was prejudiced due to omission of framing charge under Section 161 of IPC and Section 5(1)(d) read with Section 5(2) of the 1947 Act. 8. While examining the scope of error or omission in framing charge in case of Willie (William) Slaney v. The State of M. P. AIR 1956 SC 116 , the Apex Court in paragraphs 20 and 21 held as under:- 20. Now there is no doubt that a charge forms the foundation of a sessions trial and is a most important step in it. Now there is no doubt that a charge forms the foundation of a sessions trial and is a most important step in it. The accused must know and understand what he is being tried and must be told in clear and unambiguous terms: section 271(1). There can be no shirking that or slurring over it, and this must appear on the face of the record. It cannot be established by evidence taken after the trial. But there is, in our opinion, equally no doubt that the Code expressly deals with this and expressly provides that no error, omission or irregularity in the charge or even total absence of a charge, shall vitiate a trial unless prejudice to the accused is shown. This is repeatedly reiterated in number of sections. The whole question, therefore, is whether the "charge" must be formally reduced to writing and expressed as a ritualistic formula in order to save the trial from the fundamental defect of an incurable illegality or whether the information that is the substance of the matter can be conveyed in other ways. The question is whether we are to grasp at the substance or play hide and seek among the shadow of procedure. 21. First of all, sections 221 to 223 of the Code, which undoubtedly envisage a formal written charge, set out what a charge must contain. A perusal of them reveals the reasons why a charge is required. It must set out the offence with which accused is charged and if the law which creates the offence does not give it any specific name, so much of the definition of the offence must be stated "as to give the accused 'notice of the matter with which he is charged'". The charge must also contain must also contain such particular of date, time, place and person "as are 'reasonably' sufficient to give the accused notice of the matter with which he is charged", and section 22 says- When the nature of the case is such that the particulars mentioned in sections 221 and 222 do not give the accused sufficient notice of the matter with which he is charged, the charge shall also contain such particulars of the matter in which the alleged offence was committed 'as will be sufficient for that purpose. Further, explaining and examining the effects of error and omission of framing charge, referred to the provisions of Section 225, 226, 227 and 535 of the old Cr.P.C. in William Sidney's case (supra), the Apex Court in paragraphs 23, 24, 25 and 26 held as under: 23. The marginal note to section 225 is headed "Effect of errors". And the section states that- No' error in stating either the offense or the particulars retired to be stated in the charge, and 'no' omission to state the offence or those particulars, shall be regarded 'at any stage' of the case as material, unless the accused was 'in fact' misled by such error or omission 'and' it has occasioned a failure of justice. Therefore, when there is a charge and there is either error or omission in it or both and whatever its nature, it is not to be regarded as material unless two conditions are fulfilled both of which are matters of fact (1) the accused has 'in fact' been misled by it 'and' (2) it has occasioned a failure of justice. That, in our opinion, is reasonable plain language. 24. Next, sections 226 and 227 show that errors in a charge, and even the total absence of a charge', do not vitiate a trial from the start so as to render it no trial at all as would the absence of sanction under section 197. This is evident because these errors and omissions can be remedied at any time during the course of the trial in the sessions Court (Section 226) or even at the very end of the trial (section 227), and when this is done the trial need not proceed 'de novo' but can go on from the stage at which the alternation was made provided neither side is prejudiced (section 228). That is conclusive to show that no error or omission in the charge, and not even a total absence of charge, cuts at the root of the trial. The proceedings up to the stage of the alteration, which, as we have seen, can be at the very end of the trial, are not vitiated unless there is prejudice, they are good despite these imperfection. That is impossible when the error is so vital as to cut at the root of the trial. The proceedings up to the stage of the alteration, which, as we have seen, can be at the very end of the trial, are not vitiated unless there is prejudice, they are good despite these imperfection. That is impossible when the error is so vital as to cut at the root of the trial. It follows that errors in the charge, and even a total absence of a charrge, are not placed in the non-curable class. 25. Next, we have a case in which the error is not observed and corrected during the trial and the accused is convicted. In such a case, the High Court is empowered to direct a retrial, 'only' if, in its opinion the accused was "misled in his defence" (section 232). It is to be observed that this is so whether there was as total absence of a charge or merely an error in it. It is evident that a conviction cannot stand if the defect cuts at the root of the trial, therefore defects even of this nature are not regarded as fatal. 26. From there we proceed go section 535. The marginal note is "Effect of omission to prepare charge", and the section says- No finding or sentence pronounced or passed shall be deemed invalid merely on the ground that no charge was framed, unless, in the opinion of the Court of appeal or revision, a failure of justice has in fact been occasioned thereby. Here again the language is clear and wide and emphatic. The section summaries what was already indicated in sections 226, 227, 228 and 232. Here again the language is clear and wide and emphatic. The section summaries what was already indicated in sections 226, 227, 228 and 232. Similar views were reiterated by the Apex Court in cases of Jaswant Rai Manilal v. State of Bombay- AIR 1956 SC 575 , Madanraj Bhandari v. Stale of Rajasthan- (1969) 2 SCC 385 , Nani Gopal Mitra v. State of Bihar- AIR 1970 SC 1636 , State of WB v. Laisal Haque- (1989) 3 SCC 166 , State of AP v. Thakkidiram Reddy - (1998) 6 SCC 554 , K. Prema S. Rao v. Yadla Sriniwasa Rao- (2003) 1 SCC 217 , Dinesh Seth v. State (NCT of Delhi)- (2008) 14 SCC 94 , Sanichar Sahni v. State of Bihar- (2009) 7 SCC 198 , Main Pal v. State of Haryana- (2010) 10 SCC 130 , Abdul Sayeed v. State of M.P. (2010)10 SCC 259 and S. Ganesan v. Rama Raghuraman- (2011)2 SCC 83 9. It is further profitable to quote the proposition of Apex Court laid down in M.W. Mohiuddin v. State of Maharashtra- (1995) 3 SCC 567 which directly answers the question cropped up in the instant case: 9. We may incidentally refer that the learned counsel also sought to contend that the trial of the accused initially commenced under Section 161 IPC read with Section 5(2) of the Prevention of Corruption Act, 1947 but the trial court ultimately convicted the accused under the provisions of the new Act of 1988. Therefore the trial is vitiated. We see no merit in this submission. Initially no doubt on 9-12-1983 the charges were framed under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 but when the trial actually commenced in the year 1990 the then Presiding Judge framed charges under Sections 13(d)(i), (ii) read with Section 13(2) and Section 7 of the Prevention of Corruption Act, 1988 and the trial proceeded. We do not find any objection having been taken in the trial court nor such contention was put forward in the appellate court. We do not find any objection having been taken in the trial court nor such contention was put forward in the appellate court. Even otherwise we see no prejudice has been caused to the accused since the gravamen of the charges under the relevant provisions of both the Acts in respect of these offences are the same in substance and at any rate the appellant cannot raise such a contention for the first time in this Court when in fact no prejudice has been caused to him. 10. Thus, it has been well settled that unless the convict is able to establish that the effect of omission of framing charge caused real prejudice to him, that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities. Conviction order in fact is to be decided on the touchstone of prejudice theory. There is no objection by the appellant and also there is no material on record to indicate in the present case that appellant had been misled by the aforesaid error and the omission in the charges or there was failure of justice. No prejudice appears to have been caused to appellant, which could have rendered the conviction of appellant vitiated. All the particulars about the facts and the ingredients of the offence including the date of commission of offence were clearly explained to appellant. Since the provisions of Section 161 IPC, Section 7 of 1988 Act' and the provisions of Section 5(1)(d) of the 1947 Act' and 13(1)(d) of the 1988 Act' were parimateria, no prejudice can be said to have been caused to appellant by omission of framing the correct charges. It is true under the provisions of Section 161 IPC and Section 5(2) of the 1947 Act the sentence of appellant could have been reduced than minimum as provided in 1988 Act, but that mistake is curable in view of the provisions under Section 464 and 465 of the Code of Criminal Procedure. 11. It is true under the provisions of Section 161 IPC and Section 5(2) of the 1947 Act the sentence of appellant could have been reduced than minimum as provided in 1988 Act, but that mistake is curable in view of the provisions under Section 464 and 465 of the Code of Criminal Procedure. 11. In view of the above legal position, we hold that the conviction of appellant was not vitiated on account of omission of framing the charge under Section 161 IPC and Section 5(1)(d) read with Section 5(2) of the 1947 Act and instead convicting the appellant under Section 7, 13(1)(d) read with Section 13(2) of the 1988 Act. 12. Now we advert to the facts of the case. Prosecution examined 8 witnesses to substantiate its case whereas appellant examined two witnesses viz. Sonelal Shrivas (DW-1) and Kodupuri Goswami (DW-2) in his defence. 13. Learned counsel for the appellant submitted that the trial Court misappreciated the evidence on record. There were contradictions and discrepancies in the evidence of complainant Namai (PW-1) and other witnesses. Except the complainant no other shadow witness was produced in the court, who could have proved the conversation between the complainant and the appellant at the time of trap. At one place complainant said that appellant demanded Rs. 100/- whereas at other place in his statement he stated that a demand of Rs.50/- was made. There was also discrepancy in respect of the alleged motive for obtaining the bribe by the appellant. On the other hand, learned Special Public Prosecutor submitted that the evidence of complainant was fully corroborated by the evidence of other witnesses and also by the documentary evidence. Minor discrepancies found in the evidence of the complainant were natural and were because of his being a rustic villager. According to him, the impugned judgment of conviction passed against the appellant was fully justified and did not call for any interference. 14. We have heard the learned counsel for the parties and perused the evidence on record. 15. It is true that there appear some discrepancies in the evidence of complainant Namai in respect of the motive attributed to appellant for demand of illegal gratification, but, on examining his evidence critically, it appears that his evidence is natural and reliable. 14. We have heard the learned counsel for the parties and perused the evidence on record. 15. It is true that there appear some discrepancies in the evidence of complainant Namai in respect of the motive attributed to appellant for demand of illegal gratification, but, on examining his evidence critically, it appears that his evidence is natural and reliable. Written complaint (Ex.P/1) submitted by him reveals that a case under Section 107, 116 Cr.P.C. was pending in the court of Naib Tahsildar, Badwara. The clerk of that court viz. the appellant threatened him to dismiss his case, if he did not give him bribe of Rs.50/- He mentioned in the said complaint that if the proceedings pending against Deen Dayal and Ram Prasad were dropped, his life shall be at peril. He asked him to bring the aforesaid money on the date of the case i.e. on 25.1.1988. Learned counsel for the appellant pointed out that in the statement before the court, the complainant (PW-1), in his chief examination, disclosed that the appellant demanded money from him threatening that if the same was not paid, his case would be dropped, but, in the cross-examination, he deposed that the proceedings under Section 107, 116 Cr.P.C. were pending against him, therefore, he wanted these proceedings to be dropped. He never wanted that the case should go on for years. Thus, there appeared discrepancy, but, on perusal of the evidence of Naib Tahsildar (PW-3), it becomes apparent that there were two proceedings under Section 107, 116 Cr.P.C. viz. 10/ 1987 and 11/1987. The concerned order sheets of those cases were Ex. P/8 and Ex.P/9. There were two complaints Ex.P/10 and Ex.P/11. These proceedings were instituted by the police on the complaints made by the rival parties. On perusal of the order sheets of these two proceedings it is revealed that one proceeding was instituted by the complainant against Deen Dayal and Ram Prasad whereas in other proceeding he was the opposite party. omplainant being a rustic villager, it could be presumed that he might not have understood the niceties of procedures of the above proceedings, therefore, at one place he stated that he wished the proceedings to be continued and at other place he stated that he wished the proceedings to be dropped against him. omplainant being a rustic villager, it could be presumed that he might not have understood the niceties of procedures of the above proceedings, therefore, at one place he stated that he wished the proceedings to be continued and at other place he stated that he wished the proceedings to be dropped against him. The evidence of complainant (PW-1), when appreciated in the light of the evidence of Naib Tahsildar Shri K.R. Dhurve (PW-3), it can be understood that in relation to these proceedings appellant, the reader of Naib Tahsildar, demanded bribe from him. 16. Complainant (PW-1) in his chief examination before the Court deposed that appellant demanded around Rs. 100/- from him, but he told to him that he could pay only Rs.50/-. He went twice to the office of Lokayukta, Jabalpur. A day before the date fixed in the court, he handed over Rs. 100/- to vigilance people, which they put in his pocket applying phenolphthalein powder and instructed him to hand over the said money to appellant on his demand and to give signal to the trap party after acceptance of the said money by him. In paragraph-8 of his statement, complainant, however, stated that alongwith the vigilance team when he went to the office of Naib Tahsildar and approached to appellant for giving a date, on the demand of appellant, he gave him Rs.50/ - note, which appellant kept in the pocket of his pants. He then went out and gave signal as instructed. Lokayukta team reached there to whom the appellant handed over the said note of Rs.50/-. Inspector M.S. Patel (PW-5) and D.S.P. Hanumant Singh (PW-6) categorically stated that complainant Namai reached to their office on 24.1.1988 and made a complaint against the reader of Naib Tahsildar, Badwara that he was demanding Rs.50/- for dropping proceedings under Section 107, 116. Since he did not want to give bribe, he approached to them. He also tendered a complaint (Ex.P/1) to them. DSP Hanumant Singh (PW-6) directed Inspector M.S. Patel to arrange for a trap. He requisitioned independent witness Brij Bhushan Vishwakarma (PW-2), Assistant Engineer, PHE, who read over the complaint (Ex.P/1) to complainant Namai and verified the truthfulness of the same. They obtained Rs.50/- currency note from the complainant and got it initialed by Brij Bhushan Vishwakarma (PW-2) and applied phenolphthalein powder to it. He requisitioned independent witness Brij Bhushan Vishwakarma (PW-2), Assistant Engineer, PHE, who read over the complaint (Ex.P/1) to complainant Namai and verified the truthfulness of the same. They obtained Rs.50/- currency note from the complainant and got it initialed by Brij Bhushan Vishwakarma (PW-2) and applied phenolphthalein powder to it. After demonstrating the procedure of trap, they went at the office of Naib Tehsildar, Badwara. Brij Bhushan Vishwakarma (PW-2) narrated the same story. He categorically stated that a Rs.50/- currency note was handed over by Hanumant Singh (PW-6) to him for marking his initial and thereafter all of them proceeded for Katni by Jeep. Necessary instructions about handing over the currency note were given to complainant. All the aforesaid witnesses stated that when the said currency note was handed over to appellant by the complainant, they caught the appellant and recovered the said note. The fingers and the pocket of pants of appellant were dipped in sodium carbonate solution, which turned pink. Apart from it, the initial of Brij Bhushan Vishwakarma (PW-2) was also found on the said note. 17. From the evidence of aforesaid witnesses it is clearly established that the complainant (PW-1) gave Rs.50/- note to appellant and he accepted the same as illegal gratification for showing favour to him. As far as the discrepancy about the denomination of the note is concerned, though at some places complainant said that it was a Rs. 100/- note, but, in para-34 of his statement, he clarified that he did not say in the vigilance office that appellant demanded Rs. 100/- from him. He only disclosed that appellant demanded Rs.50/-. If in earlier part of his statement he mentioned that appellant demanded Rs. 100/-, it was not correct. This fact finds corroboration from the contents of written complaint (Ex.P/1) submitted by him to Superintendent of Police (Lokayukta) wherein he clearly mentioned that appellant demanded Rs.50/- from him as bribe. Apart from it, from the evidence of trap witnesses viz. Brij Bhushan Vishwakarma (PW-2), M.S. Patel (PW-5) and DSP Hanumant Singh (PW-6) it is clearly established that the complainant disclosed to them that appellant demanded Rs.50/- only. 18. Apart from it, from the evidence of trap witnesses viz. Brij Bhushan Vishwakarma (PW-2), M.S. Patel (PW-5) and DSP Hanumant Singh (PW-6) it is clearly established that the complainant disclosed to them that appellant demanded Rs.50/- only. 18. As far as the defence of appellant that complainant asked for change of Rs.50/- from him, therefore, he tendered Rs.50/- note to him is concerned, it does not appear satisfactory and reliable because complainant (PW-1) denied that he handed over Rs.50/- note to appellant for obtaining change. Similarly, Inspector M.S. Patel (PW-5) and DSP Hanumant Singh (PW-6) denied that appellant, at the time of trap, disclosed to them that he accepted the said currency note for giving change to complainant. For the first time, during the statement of Naib Tahsildar Shri K.R. Dhurve (PW-3) an elaborate suggestion was put that complainant asked for change of Rs.50/- from the appellant. Shri K.R. Dhurve (PW-3) deposed that at about 11.00 am on 25.1.1988 he was in his court room. His reader, the appellant, was in veranda. When a sub inspector informed to him that his reader was trapped, he went out in verandah and also signed memorandum. According to him, complainant came to his court and requested for a date in his case on the ground that a death had occurred in his relation. He asked his reader to give a date to him because somebody was ill in his family. On the same day complainant asked for change of Rs.50/- from the appellant for which he instructed the appellant to give him the change. Appellant gave him Rs.40/- and a Petition Writer viz. Sonelal gave him Rs. 10/- and appellant thus obtained Rs.50/- note from him. It appears that this witness Shri K.R. Dhurve had a soft comer for his clerk. The aforesaid suggestion was not put to other witnesses who were examined in the court earlier. It was not suggested to other witnesses that on the request of Naib Tahsildar appellant arranged the change of Rs.50/- and gave the same to complainant. Even otherwise, Shri K.R. Dhurve (PW-3), as stated by him, came to know about the trap only when it was informed to him by an inspector. He admitted that appellant was sitting in the verandah whereas he was sitting inside the court room. Even otherwise, Shri K.R. Dhurve (PW-3), as stated by him, came to know about the trap only when it was informed to him by an inspector. He admitted that appellant was sitting in the verandah whereas he was sitting inside the court room. He did not inform the above fact to the members of the trap party at the time of occurrence. It is strange that Mr. Dhurve (PW-3) was so kind hearted that he asked the appellant to arrange the change of Rs.50/- for the complainant. It is doubtful that he asked appellant to give a date to the complainant in view of the fact that in one breath he stated that he adjourned the case as he came to know that some death had taken place in the relation of complainant and in other he stated that he asked appellant to adjourn the case as somebody was ill in his family. These facts indicate that the defence put by the appellant was not reliable and was an after thought. It is also significant to note that the defence put by appellant to Brij Bhushan Vishwakarma (PW-2) was that DSP Hanumant Singh (PW-6) forcibly thrusted currency note in the pocket of the appellant. This suggestion was not even put to Hanumant Singh himself. In view of the above circumstances, we do not find the evidence of Sonelal Shrivas (DW-1) and Kodupuri Goswami (DW-2), Cleark and Petition Writer of the Court of Naib Tahsildar Mr. K.R. Dhurve (PW-3), trustworthy. 19. We are unable to accept the submission made by the learned counsel for the appellant that complainant was in the habit of making police reports against the officers. On perusal of document (Ex.D/1) referred to by the learned counsel for the appellant, we find that it is a complaint purported to be made by the complainant to Lokayukta in respect of the conduct of Naib Tahsildar, Badwara, contending that in the trap case of R.N. Yadav, the appellant, he was harassing and intimidating him to resile from his evidence. It is true that complainant in his evidence admitted his signatures on the typed complaint, but he stated that his signatures were obtained on the blank paper by one Rohini Prasad. In our opinion, this document in no way helps appellant. 20. It is true that complainant in his evidence admitted his signatures on the typed complaint, but he stated that his signatures were obtained on the blank paper by one Rohini Prasad. In our opinion, this document in no way helps appellant. 20. Thus, by the aforesaid evidence, in our opinion, it is established that appellant demanded and obtained/accepted Rs.50/- from the complainant (PW-1) by way of illegal gratification for showing favour to him in 107, 116 Cr.P.C. proceedings. Apart from the prosecution evidence, the fact of acceptance of tainted money by the appellant has not been disputed by the appellant himself, though, according to him, he accepted the same on the request of complainant for giving change of the said money. 21. In case of B.Noha v. State of Kerala and Aother- (2006) 12 SCC 277 the Apex Court held that when it is proved that there was voluntary and conscious acceptance of money by the accused, 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. Similarly in M W. Mohiuddin v. State of Maharashtra- (1995) 3 SCC 567 in the context of words 'obtains the pecuniary advantage' in Section 7 and 13(d) of the Prevention of Corruption Act. the Apex Court held that once the accused comes into possession of the tainted money, the only inference is that he accepted the same and thus 'obtained' the pecuniary advantage. 22. It is true that when the money is found to have been passed to public-servant, the burden is on public servant to establish that it was not by way of illegal gratification. If this burden is not discharged, it has to be presumed that he accepted the money as illegal gratification. It is also well settled that in a case where 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 also clear that the accused is not required to establish his defence by proving the same beyond a reasonable doubt like prosecution, but can establish the same even by preponderance of probability 23. It is also clear that the accused is not required to establish his defence by proving the same beyond a reasonable doubt like prosecution, but can establish the same even by preponderance of probability 23. Keeping the above settled legal propositions in our mind, when we examine the evidence on record to appreciate the explanation/defence put by the appellant in the case in hand, we find same to be wholly unconvincing and unsatisfactory. 24. In the above circumstances and for the aforesaid reasons, we find that the finding of conviction recorded by the trial Court is just and proper. Accordingly, the conviction of appellant on both the counts is affirmed. However, in view of the special reasons that appellant ought to have been charged under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947, the accusation against the appellant was that he accepted bribe of Rs.50/- only in the year 1988, since then about 22 years have elapsed, the appellant has already lost his job, and the fact that appellant now is an old man of about 67 years of age, his sentence on both counts is reduced to rigorous imprisonment for a period of three months. Sentence of fine as awarded by the trial Court is affirmed. Sentences of imprisonment shall run concurrent. 25. Subject to modification in the sentence made hereinabove, this appeal is dismissed.