JUDGMENT Per: Rakesh Saksena, J. Appellant has filed this appeal against the judgment dated 10th April, 2000 passed by Special Judge (Prevention of Corruption Act), Jabalpur in Special Criminal Case No.28/91 convicting him under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and section 161 of the Indian Penal Code and sentencing him to rigorous imprisonment for 2 years with fine of Rs.2000/- on each count, respectively. Sentences of imprisonment concurrent. 2. The accusation against the appellant is that on 23.1.1987 while he was posted as Assistant Sales Tax Officer, Jabalpur, he by abusing his position as a public servant, by corrupt and illegal means, obtained Rs.500/- as illegal gratification for showing favour to complainant Musharrat Ali in his sales tax assessment case. 3. In short, the prosecution case is that complainant Musharrat Ali was a building contractor. His firm was registered in the name of S.M. Construction. He received a notice issued by appellant, who was posted as Assistant Sales Tax Officer in Circle-II, Jabalpur for his appearance in his office on 22.1.1987. It is alleged that when complainant appeared in the office, appellant informed him that a case of sales tax assessment was registered against him in which he was required to pay a sum of Rs.5000/- as tax; if he gave Rs.1000/- to him separately, he will assess lesser tax. When complainant told to him that he had already suffered losses and he was not in a position to pay that much, appellant asked him to pay Rs.500/- initially and to pay Rs.500/- later. He asked complainant to come with Rs.500/- in the office on 23.1.1987. Since complainant did not want to give bribe and wanted appellant to be caught taking bribe, he approached to the office of SPE Lokayukta, Jabalpur and submitted a written complaint Ex.P/1 to Superintendent of Police, Lokayukta. DSP Hanumant Singh (PW-13) instructed and authorized inspector S.K.Mishra (PW-14) to arrange for a trap. 4. Inspector S.K.Mishra summoned District Legal Aid Officer Pankaj Upadhyaya (PW-1) and Shahjad Khan (PW-4) as panch witnesses. Shri Pankaj Upadhyaya read over the application Ex.P/1 to complainant and verified its truthfulness. Inspector Mishra demonstrated the use of phenolphthalein powder and sodium carbonate solution in the trap proceeding and after obtaining five notes of Rs.100/- from the complainant, asked peon Petram to apply phenolphthalein powder to them. Shri Pankaj Upadhyaya read over the application Ex.P/1 to complainant and verified its truthfulness. Inspector Mishra demonstrated the use of phenolphthalein powder and sodium carbonate solution in the trap proceeding and after obtaining five notes of Rs.100/- from the complainant, asked peon Petram to apply phenolphthalein powder to them. He noted the numbers of the notes and got them initialled by Shri Pankaj Upadhyaya (PW-1). Currency notes were kept in the pocket of complainant and he was asked to tender these notes to appellant on his demand and to give signal to trap party. Complainant was made to observe the precaution of not touching the notes before delivering the same to appellant. Preliminary memorandum Ex.P/2 was recorded. 5. At about 2:30 p.m. members of trap party reached at the sales tax office. Complainant and Shahjad Khan (PW-4) went to the office of appellant which was situated on the first floor of the building. Other members of the trap party sat on the bench kept in the verandah. At about 2:40, complainant came out of the office of appellant and gave prefixed signal whereupon trap party entered the office. After giving their introduction to appellant, inspector Mishra caught hold of the right hand of appellant and got it washed with sodium carbonate solution, the solution turned pink. The hands of panch witnesses were also washed with the solution but the colour of the solution remained unchanged. Said solutions were seized and sealed. 6. On search from the right pocket of the coat of the appellant, Pankaj Upadhyaya recovered five notes of Rs.100/- and identified his signatures on them. He also tallied the numbers of the notes recorded in preliminary memorandum Ex.P/2. Besides the aforesaid money, Rs.3616/- were also recovered and seized from his left pocket of the coat vide seizure memo Ex.P/5. The sodium carbonate solution turned pink when pocket of the coat of appellant was dipped in it. The said solution was seized and sealed vide seizure memo Ex.P/6. The files of assessment and recovery cases of S.M. Construction were seized. The trap memorandum Ex.P/3 was drawn and Dehati Nalishi Ex.P/25 was recorded. On the basis of said report, crime was registered in the headquarter of Special Police Establishment, Lokayukta, Bhopal. The said solution was seized and sealed vide seizure memo Ex.P/6. The files of assessment and recovery cases of S.M. Construction were seized. The trap memorandum Ex.P/3 was drawn and Dehati Nalishi Ex.P/25 was recorded. On the basis of said report, crime was registered in the headquarter of Special Police Establishment, Lokayukta, Bhopal. During investigation, police seized various other requisite documents and after obtaining sanction for the prosecution (Ex.P/17) from Madhya Pradesh Law and Legislative Affairs Department, filed charge sheet against the appellant in the Special Court. 7. On charges being framed, appellant pleaded false implication. According to him, complainant had put Rs.500/- on his table for depositing in the recovery case. Inspector Mishra and head constable Janardan caught hold of his hands and inspector Mishra put the notes in his pocket and seized them. There was no search by witness Pankaj Upadhyaya. It was further stated by him that he had received Rs.500/- (5) Cr.A.No.1196/2000 towards part payment of revenue recovery in Case No.93/86-87 in which total amount of recovery was Rs.5299/-. Complainant concocted the false story of bribe with a view to avoid huge amount of recovery due on him. 8. Prosecution examined fifteen witnesses to substantiate its case before the Court and exhibited thirty three documents. Though appellant did not examine any witness, but he exhibited fifteen documents in support of his defence. 9. Learned Special Judge, after trial and upon appreciation of the evidence adduced in the case, held appellant guilty of the charge under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and section 161 of the Indian Penal Code and sentenced him as mentioned above. Aggrieved by the impugned judgment of conviction, appellant has filed the present appeal. 10. Shri Ashok Tiwari, learned counsel for the appellant, though did not dispute the fact that at the relevant time appellant was posted as Assistant Sales Tax Officer and was a public servant, however, submitted that the case of demand of bribe and the trap was false and concocted by the complainant with a view to avoid recoveries from him. There were four recovery cases pending against the appellant wherein he was required to deposit more than Rs.5299/-. On the pretext of making part payment of Rs.500/- in one of the cases, complainant got the appellant trapped with ulterior motive of avoiding the recovery of remaining amount. There were four recovery cases pending against the appellant wherein he was required to deposit more than Rs.5299/-. On the pretext of making part payment of Rs.500/- in one of the cases, complainant got the appellant trapped with ulterior motive of avoiding the recovery of remaining amount. Due to trap of appellant, files of all the said cases were taken away by the Lokayukta police, as a result of which, complainant escaped the recoveries resulting in loss to State. Learned counsel submitted that the explanation furnished by the appellant that he accepted the money on the representation made by the complainant that he was giving that money for depositing the same in the recovery case. Before he could take up the file and issue receipt, trap party caught him. On the other hand, Shri Aditya Adhikari, learned Special Public Prosecutor for Special Police Establishment, submitted that from the prosecution evidence, demand of bribe and acceptance of tainted currency notes from the appellant was clearly established. As such the finding of conviction of the appellant was justified. The evidence of complainant as well as other witnesses was reliable, therefore, no interference was called for in the impugned judgment of conviction. 11. We have heard the learned counsel for the parties and perused the evidence on record carefully. 12. It has not been disputed that in the year 1987, appellant was posted as Assistant Sales Tax Officer in Circle- II, Jabalpur and as such he was a public servant. The validity of sanction for the prosecution of the appellant has also not been challenged. 13. The crucial question before this Court is whether appellant demanded and/or accepted bribe from complainant Musharrat Ali (PW-5) for favouring him in the matter of assessment of sales tax on him. Learned counsel for the appellant argued that from the evidence of Musharrat Ali (PW-5) and Shahjad Khan (PW-4), it appears that they with malafide intention had concocted the false story of demand of bribe with a view to avoid recoveries from the complainant. 14. Musharrat Ali (PW-5) stated that he was a building contractor. In the year 1981, he had got his firm registered as S.M. Construction. Cases against his firm were pending in the sale tax office. His assessment case was in the office of appellant. 14. Musharrat Ali (PW-5) stated that he was a building contractor. In the year 1981, he had got his firm registered as S.M. Construction. Cases against his firm were pending in the sale tax office. His assessment case was in the office of appellant. Since the assessment was on the higher side, he requested the appellant to reduce the assessment for which appellant demanded Rs.5000/-. He told to appellant that since he had suffered heavy loss he could arrange only Rs.500/-. He alone then went to the office of Lokayukta, Jabalpur and gave a written complaint Ex.P/1 in his handwriting and tendered currency notes of Rs.500/- saying that appellant was harassing him and demanded money. When trap was arranged he went to the office of appellant and told to him that he could not arrange Rs.5000/-, therefore, he brought Rs.500/- only and he took out notes from the envelope and handed over tainted currency notes of Rs.500/- to appellant, which he kept in the pocket of his coat. Lokayukta officers trapped him and washed his hands with solution which turned pink. Money and the coat was seized. According to this witness, he alone went to the Lokayukta office and handed over Rs.500/- to them. He did not say that anybody verified the making of complaint of demand by him. He denied that he accompanied Shahjad Khan (PW-4) while going to the office of appellant. He was confronted with his police statement Ex.D/6 wherein he mentioned that he went to sales tax office with Shahjad. Similarly, Shahjad Khan (PW-4), with a view to show his disinterestedness and impartiality, stated that he had gone in the building of sales tax office for some work of his friend Laxman. CBI people had recovered Rs.500/- from the appellant and that he heard that appellant was taking bribe. He repeated the narration of trap as stated by Musharrat Ali (PW-5). According to him, at the time of occurrence, he heard that some case of Musharrat Ali was pending in the office of appellant, appellant harassed him and Musharrat Ali gave him bribe. Except the office where the incident occurred, he did not go anywhere before the trap. He had reached in the sales tax office with a crowd of 20-25 persons. In cross-examination, this witness was confronted on material points with his police statement Ex.D/1 wherein he stated that he knew Musharrat Ali. Except the office where the incident occurred, he did not go anywhere before the trap. He had reached in the sales tax office with a crowd of 20-25 persons. In cross-examination, this witness was confronted on material points with his police statement Ex.D/1 wherein he stated that he knew Musharrat Ali. Musharrat Ali was the owner of S.M.Construction. His cases were pending in the sales tax office. A day before the occurrence, he had informed him that Assistant Sales Tax Officer K.L.Shrivastava was demanding bribe of Rs.1000/-. With great difficulty, he made him to agree to accept Rs.500/-. He accompanied him to vigilance office situated in the office of Commissioner and gave a written application to Superintendent of Police. He remained seated with the clerk in the office and that he and Musharrat Ali went in the verandah and both of them gave signal to trap party and trap party along with him entered the office of appellant. This clearly indicates that complainant Musharrat Ali acted in league with Shahjad Khan (PW-4), but both of them deliberately attempted to show that they were not known to each other. Under these circumstances, the conduct of Musharrat Ali (PW-5) and Shahjad Khan (PW-4) does not seem to be bonafide and above suspicion. 15. From the evidence of DSP Hanumant Singh (PW-13) and inspector S.K.Mishra (PW-14), it is proved that Musharrat Ali tendered complaint Ex.P/1 making accusation against the appellant that he demanded bribe of Rs.1000/- for reducing the tax against him and that he had agreed to accept Rs.500/- for the same. The fact of making application by the complainant and the demand of bribe by the appellant as stated by the complainant was verified by independent witness Pankaj Upadhyaya (PW-1). All the aforesaid witnesses arranged for a trap and recovered Rs.500/- from the appellant which were tendered by the complainant. The fact that tainted currency notes of Rs.500/- were recovered and seized from the possession of appellant was not disputed by the appellant also, however, the contention of the appellant was that with a view to avoid recoveries of tax from him, complainant concocted the story of demand of bribe. He handed over the money to him representing it to be deposited towards recovery, but got him trapped making false allegation of acceptance of bribe. 16. He handed over the money to him representing it to be deposited towards recovery, but got him trapped making false allegation of acceptance of bribe. 16. In the above situation, we are required to decide whether appellant demanded and accepted bribe for reducing the assessment of the tax on the firm of complainant or he accepted the money under the impression that it was towards the part payment of the recoveries due on the complainant. 17. Learned Special Public Prosecutor placing reliance on the decision of the Apex Court in M.W. Mohiuddin vs. State of Maharashtra- (1995) 3 SCC 567 submitted that when the complainant parted with the tainted money and the same came under the hold and control and hence into the possession of the accused, it cannot be said that the accused had not come into possession of the money. When once this requirement namely that he came into possession of the money is satisfied then the only inference is that he accepted the same and thus obtained the pecuniary advantage. He also placed reliance on the case of B.Noha vs. State of Kerala and another- (2006) 12 SCC 277 and argued that when it was proved that there was voluntary and conscious acceptance of money by the accused, there was no further burden cast on the prosecution to prove by direct evidence, the demand or motive. 18. On the other hand, learned counsel for the appellant placing reliance on Punjabrao vs. State of Maharashtra- AIR 2002 SC 486 submitted that it is well settled that in a case where the 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 further clear that the accused is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. In M.S.Narayana Menon Alias Mani vs. State of Kerala and another- (2006) 6 SCC 39 , V.Venkata Subbarao vs. State Represented by Inspector of Police, A.P - (2006) 13 SCC 305 and Chaturdas Bhagwandas Patel vs. State of Gujarat- (1976) 3 SCC 46 , Apex Court held that onus on an accused is not heavy as that of the prosecution. In M.S.Narayana Menon Alias Mani vs. State of Kerala and another- (2006) 6 SCC 39 , V.Venkata Subbarao vs. State Represented by Inspector of Police, A.P - (2006) 13 SCC 305 and Chaturdas Bhagwandas Patel vs. State of Gujarat- (1976) 3 SCC 46 , Apex Court held that onus on an accused is not heavy as that of the prosecution. Accused does not have to meet the same standard of proof, as is required to be made by the prosecution. 19. When we examine the evidence of Musharrat Ali (PW-5), we find his evidence inconsistent and discrepant. In complaint Ex.P/1 though he stated that appellant demanded Rs.1000/- as bribe, but contrary to it, he deposed in the Court that appellant demanded Rs.5000/-. He denied that in Ex.P/1 and in his police statement Ex.D/6 he stated that only Rs.1000/- was demanded. In para 7 of his evidence, he stated that at the time of occurrence, he had only one sales tax case on which the present case was based. Before that he had no other sales tax case. He admitted that notices of Ex.D/3 and D/4 were sent to him, but he did not remember when they were served. He admitted that he had to pay tax of his firm S.M. Construction, but he did not remember whether he ever paid the tax. He did not know whether he preferred any appeal or revision in respect of the notices Ex.D/3 and D/4 issued to him for demand of tax. On perusal of recovery notices issued to complainant's firm under section 146 of the Land Revenue Code, it is revealed that he was directed to pay tax of Rs.5300/-, Rs.609/-, Rs.200/- and Rs.1022/- in respect to four different cases. Even according to his admission, he had to deposit Rs.7000/- tax in the sales tax department. He admitted that he did not disclose to Lokayukta officers about his liability to pay taxes. In the instant case, complainant made complaint Ex.P/1 to police with respect to the case pertaining to assessment notice Ex.P/8 whereby he was asked to appear on 22.1.1987 and to produce documents regarding assessment of the sales tax of his firm for the period 1.4.85-31.3.86. In the instant case, complainant made complaint Ex.P/1 to police with respect to the case pertaining to assessment notice Ex.P/8 whereby he was asked to appear on 22.1.1987 and to produce documents regarding assessment of the sales tax of his firm for the period 1.4.85-31.3.86. It appears suspicious that when heavy recovery of taxes was due on the complainant he approached to police making allegation of demand of bribe by the appellant in respect of merely a notice for the assessment of tax for one year. 20. Learned Special Public Prosecutor contended that it was not provided under the law for the payment of dues in installments as the recoveries were to be made as arrears of land revenue, but on perusal of warrant for attachment against Deepak Trading Company (Ex.P/23), it revealed that the Assistant Sales Tax Officer accepted the payment due from the said Company in installments, as such it cannot be accepted that there was no practice of accepting payment in installments due towards the tax from the defaulters. 21. R.N. Tripathi (PW-11), Assistant Commercial Tax Officer, who at the relevant time was posted as Sales Tax Inspector, deposed that on 23.1.1987, appellant had book No.2956 which was seized from his possession. He could have issued the receipt of acceptance of money, however, a receipt could be issued only after looking at the demand notice or warrant issued in a case. If tax payer, who has more than one cases, comes personally to deposit the money, it becomes necessary to examine in which case the money should be deposited. If the file of the case is not before the officer, it would take at least 15-20 minutes for gathering the information. From the evidence of this witness, it can be gathered that if appellant wanted to issue receipt of the acceptance of money, it would have taken at least 20-25 minutes, but as stated by the complainant himself he immediately gave signal to the members of trap party who rushed to the spot immediately and caught the appellant with money. 22. From another pocket of the coat of appellant also, a sum of Rs.3500/- was recovered and seized by inspector S.K.Mishra (PW-14). 22. From another pocket of the coat of appellant also, a sum of Rs.3500/- was recovered and seized by inspector S.K.Mishra (PW-14). Sales Tax Inspector Subhash Chandra (PW-12) deposed that on that day he had received cash of Rs.3500/- from Deepak Trading Company and issued receipt, but since he had to go from the office, he handed over that money to appellant. This indicates that there was practice in the office to receive the money in cash and to issue receipts. As a matter of common sense, it can be presumed that issue of a receipt would take some time. Subhash Chandra (PW-12) stated that appellant was entitled to recover dues from S.M.Construction of the complainant. The evidence of Subhash Chandra (PW-12) finds support from the evidence of Santosh Kumar (PW-2) and Krishnadayal Chaturvedi (PW-3), both employees of the sales tax department. 23. Santosh Kumar (PW-2) stated that there were four cases of recovery against the complainant. Around Rs.7000/- were to be recovered from the complainant. Krishnadayal Chaturvedi(PW-3) stated that in the sales tax department, the power of recovery was available to sales tax inspector, assistant sales tax officer and commercial tax officer. Any party from whom the recovery was to be made could be granted relief of depositing the money in installments because the officers of the department had to achieve the target of recovery. 24. Appellant in his statement under section 313 Cr.P.C stated that Rs.500/- which inspector Mishra seized from him was the money of revenue recovery which he had received from complainant on 23.1.1987. Complainant had deposited the said amount out of total balance amount of Rs.5299/-, as part payment in Case No. 93/86-87. Since there were other four recovery cases pending against complainant in which recovery of Rs.7127/- was to be made, with a view to avoid, he concocted the story of bribe and got him trapped and escaped the recoveries of about Rs.13,000/-. According to him, complainant incurred benefit of around Rs.20,000/- which could not be recovered from him because the files of the concerned cases were seized by the officers of Lokayukta in connection with the instant case. In this connection, it is also significant to note that witness Pankaj Upadhyaya (PW-1) admitted that on questioning the appellant about possession of Rs.500/-, he informed that he had called the inspector to issue receipt in that regard. In this connection, it is also significant to note that witness Pankaj Upadhyaya (PW-1) admitted that on questioning the appellant about possession of Rs.500/-, he informed that he had called the inspector to issue receipt in that regard. At the same time, Rs.3616/- were also seized from the possession of appellant, which according to him, were also kept by him after recovery. Though complainant (PW-5) denied that he gave Rs.500/- to appellant towards tax, but at the same time in para 21 of his evidence, he admitted that he had given the aforesaid money to appellant towards the item of recovery of Rs.7000/-. The evidence of complainant about giving the money as bribe, also seems suspicious in view of the fact that he denied that on 23.1.1987, four cases of recovery were pending against him. 25. On a critical scrutiny of the evidence adduced by the prosecution, it does not appear beyond suspicion that complainant (PW-5) tendered tainted currency notes to appellant as illegal gratification or bribe. In view of the fact that recoveries of huge amount were pending against the complainant and the said cases of recoveries were pending before the appellant, the possibility that appellant accepted the tainted money under the belief that it was being given to him as a part payment of the amount due against the complainant, cannot be ruled out. Apart from it, the conduct of complainant (PW-5) in not informing the officers of Lokayukta about recoveries pending against him also throws a cloud of suspicion against the veracity of his evidence. It is also relevant to note that shadow witness Shahjad Khan (PW-4) as well as complainant attempted to suppress that they were known to each other and after deliberations they went to make complaint against appellant with the Lokayukta police. In these circumstances, explanation put forth by the appellant appears plausible and acceptable. 26. In view of the aforesaid circumstances, we are of the view that the prosecution failed to prove beyond doubt that appellant accepted Rs.500/- voluntarily as illegal gratification/bribe for reducing the assessment of the tax of the complainant. As such, the finding of conviction of the appellant under section 5(1)(d)/5(2) of the Prevention of Corruption Act, 1947 and section 161 of the Indian Penal Code recorded by the Court below cannot be sustained. 27. As such, the finding of conviction of the appellant under section 5(1)(d)/5(2) of the Prevention of Corruption Act, 1947 and section 161 of the Indian Penal Code recorded by the Court below cannot be sustained. 27. Accordingly, the impugned judgment of conviction and the sentence passed by learned Special Judge, Jabalpur is set aside. Appellant is acquitted. 28. Appeal allowed.