JUDGMENT A.S. PACHHAPURE, J.—The appellant has challenged his conviction and sentence for the offence punishable under Sections 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 [hereinafter called as “P.C. Act, 1988” for short] , on a trial held by the learned Special Judge, Bangalore Urban District. 2. The facts relevant for the purpose of this appeal are as under: The appellant, who was the accused in the trial Court was an Excise Inspector in the Excise Department and a public servant. At the time of the incident, he was working as an Excise Inspector, Shivajinagar Range, Bangalore-P.W. 2-V. Rajesh, i.e., the complainant was running a Bar and Restaurant by name Eswar Bar and Restaurant at Nehrupuram, Seppings Road; Shivajinagar, Bangalore with a valid license. It was the case of the prosecution that the accused was constantly harassing the complainant, demanding monthly payment of bribe and due to slack in the business, the complainant could not satisfy the demand of the accused for about 5-6 months. In this regard, the accused had booked a case against P.W. 2 alleging violation of bar timings and made him to pay a fine of Rs. 8,000.00. As there was constant threat by the accused that he would not allow the complainant to carry on the business unless the arrears for the past 5 months amounting to Rs. 15,000.00 is paid, having no other way and without any willingness to pay the money, the complainant approached the Deputy Superintendent of Police, Lokayukta [P.W. 4] and submitted his complaint [Ex.P10] on 8.10.2001. After registration of the case, entrtistment mahazar was held and the currency notes treated with phenolphthalein powder were given to P.W. 2 to pay the same to the accused on demand and after acceptance of the amount to give a signal by ringing the mobile phone. On the first day, trap failed as the accused was not present in the office and therefore, on the second day, i.e., on 10.10.2001 the trap was successful. P.W. 2 and P.W. 1, a shadow witness went to the office of the accused and on demand made by the accused, P.W. 2 paid the amount and it was accepted by the accused from his right hand and he put the same into his shirt pocket. As per the signal, the Lokayukta police officials entered and took the hand-wash of the accused. As per the signal, the Lokayukta police officials entered and took the hand-wash of the accused. It turned to pink colour. Thereby, Mahazar was prepared in the presence of the witnesses and other Lokayukta officials. After completion of the investigation, a charge-sheet came to be filed against the accused for the aforesaid offences. During the trial, P.Ws. 1 to 6 were examined by the prosecution and in their evidence, documents Exs.Pl to 22 and M.Os.1 to 13 were marked. Thestatement of the accused was recorded under Section 313 Cr.P.C. He took the defence of total denial and contended that the amount was paid for the purpose of purchasing national Saving Certificate [NSC]. He got marked Ex. D1, an inter-office circular of the Excise Department. The trial Court after hearing the prosecutor and the learned counsel for the accused and on appreciation of the material on record, convicted the appellant/accused for the offence punishable tinder Sections 7, 13(1)(d) read with Section 13(2) of the P.C. Act, 1988 and ordered to undergo imprisonment for one year for the offence punishable under Section 7 of the P.C. Act, 1988, 2 years for the offence punishable under Section 13(1)(d) read with Section 13(2) of the P.C. Act, 1988 and ordered to pay a fine of Rs. 10,000.00 and to undergo default sentence. Both the sentences were ordered to run concurrently. Aggrieved by the conviction and sentence, the accused has preferred this appeal. 3. During the pendency of this appeal, appellant has expired and his legal representatives have been brought on record. 4. I have heard the learned counsel for the appellants and also Sri. S.G. Rajendra Reddy, Advocate for the respondent. 5. The points that arise for my consideration are: (1) Whether it is proved that the accused while working as Exercise Inspector demanded Rs. 15,000.00 and accepted an amount of Rs. 10,000.00 as bribe on 10.10.2001 from P.W. 2-Rajesh [complainant] as a motive or reward for the purpose of official favour to the complainant, not to book case against him and thereby committed an offence punishable under Section 7 of the P.C. Act, 1988? (2) Whether the prosecution further proves that the accused being the public servant, by all illegal means or otherwise by abusing his position as a public servant demanded an amount of Rs. 15,000.00 and accepted Rs. (2) Whether the prosecution further proves that the accused being the public servant, by all illegal means or otherwise by abusing his position as a public servant demanded an amount of Rs. 15,000.00 and accepted Rs. 10,000.00 from the complainant on the above said date and time at his office and, thereby committed an offence punishable under Sections 13(1)(d) read with 13(2) of the P.C, Act, 1988? (3) Whether the appellant has made out any grounds to warrant interference in the Judgment and Order of conviction? 6. There is no serious challenge so far with regard to entrustment mahazar/filing of the complaint against the accused as per Ex.P10 and also with regard to the trap that has been held. P.W. 1 is the shadow witness, whereas P.W. 2 is the complainant and both went to the office of the complainant on 10.10.2001. The Lokayuktha Officials with another witness were waiting outside the office and the evidence of P.Ws. 1 and 2 repeals that the accused demanded an amount of Rs. 10,000.00 as mamul (bribe) being the arrears payable monthly for about 5 months and the said amount having been paid on demand by the accused and the accused having received the same by his right hand and kept the said amount in his left side shirt pocket. So far as the demand and the acceptance, there is consistent evidence of P.Ws. l and 2. Though the complainant-P.W. 2 is an interested person, his evidence is corroborated by P.W. 1, the shadow witness. 7. It is the submission of the learned counsel for the appellant/s that the accused has offered, an explanation and proved the same by raising serious doubt with regard to the veracity of the evidence of P.Ws. 1 and 2. At the first instance, it is the contention of the learned counsel that there was enmity between the complainant-P.W. 2 and the accused as the accused had filed a complaint for running the bar and restaurant beyond the official timings and the complainant had to pay a fine of Rs. 8,000.00 to the appellant/accused. But, the complaint has made it very much clear that this case was filed by the accused only because he did not pay the bribe every month, and because of this reason, the case was filed. 8,000.00 to the appellant/accused. But, the complaint has made it very much clear that this case was filed by the accused only because he did not pay the bribe every month, and because of this reason, the case was filed. It is relevant, to note that the person/s, who is/are running the bar and restaurants all the while visiting the bar and restaurants for the purpose of inspection or for any other purpose. If a complaint is lodged, it would go difficult for the complainant to prove his defence and generally they do not take the risk of defending the complaint and would pay the fine amount. In this context, if the allegations made by the complainant are looked into, the reason, for filing the complaint was known to the complainant and also this complaint has been taken as a defence by the accused to establish that there was an enmity between the complainant and the accused. It is under these circumstances, that the evidence of P.M.1 is of importance as he is an independent witness. P.W. 1, who is a shadow witness and an eye-witness to the demand and receipt of the bribe amount, deposed before the Court that he was deputed to the Lokayuktha office on 8.10.2001 and he reported in the office at 3.45 p.m. On the next day, the accused was not available and therefore, on 10.10.2001, P.W. 2 along with P.W. 1 went once again to the office of the accused after pre—trap mahazar. They parked their vehicle at the distance of 200 ft. away from the office of the accused and P.W. 1 accompanied by P.W. 2. Beth of them entered the chamber of the accused and sat side by side OH the chairs, The accused enquired about P.W. 1 and the complainant [P.W. 2] introduced him as his proposed lessee of the bar and restaurant. P.W. 1 stated that the accused demanded the amount and on his demand P.W. 2 handed over Rs. 10,000.00 to the accused and thereby the accused kept the money into his left side shirt pocket. The conversation that took place between P.W. 2 and the accused was with regard to the introduction of P.W. 1 to the accused, and demand of Rs. 10,000.00 and payment of the same by the complainant-P.W. 2, the amount which was treated with phenolphthalein powder. The conversation that took place between P.W. 2 and the accused was with regard to the introduction of P.W. 1 to the accused, and demand of Rs. 10,000.00 and payment of the same by the complainant-P.W. 2, the amount which was treated with phenolphthalein powder. So, the accused after receiving the money, kept it in his left side shirt pocket and as per the signal, P.M. 2 gave a mobile call and the Lokayukta Police officials and other witnesses entered the premises, the amount was recovered from the accused, the Sodium Carbonate test was done by taking the wash of the right hand of the accused and the liquid turned to pink colour. So also, the shirt wash was taken and it was also proved positive. In the circumstances, the hand wash and the left side shirt pocket wash were taken in a bottle M.Os.6, 7 and 10 respectively. The cash M.O.8 was seized and this process clearly established the acceptance of the amount by the accused, In these circumstances, it is under Section 20 of the P.C. Act, 1988, a presumption arises regarding the payment of bribe arid the burden shifts upon the accused to offer an explanation. At the relevant time, the accused explained that the amount of Rs. 10,000.00 was paid to him to purchase NSC. Ex. D1 is the circular, which has been marked and in the cross-examination of P.W. 2 a suggestion has been made that the accused was asking him to pay Rs. 5,000.00 each towards NSC in respect of Eswar Wines and Eshwar Bar and Restaurant and the complainant has admitted the same. But, so far as the payment of Rs. 10,000.00 on the date of the incident, he has denied that the said amount was towards purchase of NSC. Every suggestion that has been made with respect to the explanation offered by the accused has been denied by P.W. 2 and his evidence has been corroborated by P.W. 1. 8. But, so far as the payment of Rs. 10,000.00 on the date of the incident, he has denied that the said amount was towards purchase of NSC. Every suggestion that has been made with respect to the explanation offered by the accused has been denied by P.W. 2 and his evidence has been corroborated by P.W. 1. 8. The learned counsel for the appellant has placed reliance on the decision of the Supreme Court reported in AIR 1977 Supreme Court 170 and the relevant portion extracted therein reads as under: “(1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case; (2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty and (3) that the onus of the prosecution never shifts.” 9. To assess the evidence on the basis of the principles laid-down by the Apex Court referred to supra, it is relevant to note that whatever conversation that was made as has been spoken to by P.Ws. 1 and 2. P.W. 1 was introduced as a proposed lessee of the premises and an amount of Rs. 10,000.00 as demanded by the accused was paid to him. It is relevant to note that the accused was to demand at the most NSC and not the cash. The complainant is the person, who was residing in Metropolitan City and it cannot be accepted that he was not able to fill the form to obtain NSC and give the certificates to the accused. Though it is suggested in the cross-examination that the complainant went outside stating that when he would faring the blank form to purchase NSC, this has net been stated both by the complainant and also P.W. 1, the shadow witness. A circumstance, which, was existing at. the time, wherein there were instructions to the officers to collect NSC has been used in the instant case by the accused as a defence and mere fact that there was instruction by the superior to collect NSCs, in the absence of any material in the evidence of the prosecution, mere suggestion to P.W. 2 that he paid the money to purchase NSCs cannot be accepted. If the case of the accused is to be accepted, the accused could have asked the complainant to retain the money with him and bring the form instead of receiving the money and keeping the same in his left side shirt pocket. There is consistent, cogent, acceptable and clinching material in the evidence of P.Ws.1 and 2, to show that the accused demanded the bribe amount and the same was paid by the complainant and the payment was not for purchase of any NSC., the perusal of the evidence of P.Ws. 1 and 2 does not repeal any inconsistency or discrepancy. In that view of the matter, the mere suggestions made and denied by the witnesses cannot take the place of proving the defence by preponderance of probability. So, taking into consideration the appreciation of the evidence by the trial Court and its re-appreciation by this Court, there is ample material against the accused for the offence punishable under Sections 7, 13(1)(d) read with, 13(2) of the P.C. Act, 1988 and I do not find any grounds to warrant interference. As the appellant is now dead, there is no question of undergoing any sentence of imprisonment. To this extent, the Order is modified. In the circumstances, I answer point Nos. 1 and 2 in affirmative and point No. 3 partly affirmative and partly negative and proceed to pass the following: ORDER The appeal is allowed in part. The sentence of imprisonment is set aside, as the appellant is dead and the legal representatives of the deceased appellant/accused to pay a fine of Rs. 1,000.00 each in respect of the offence punishable under Sections 7 and 13(1) (d) read with 13(2) of the P.C. Act, 1988. The trial Court shall take steps to recover the fine.