JUDGMENT : A. K. SHRIVASTAVA, J. Feeling aggrieved by the judgment of absolvitur dated 13-4-1999 passed by learned Special Judge, West Nimar Mandleshwar in Special Case No. 7/1998, acquitting the respondent from the charges punishable under section 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (in short the Act) this appeal has been preferred by the State of Madhya Pradesh after obtaining leave to file appeal under section 378(3) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that complainant Pandri Yadav was posted on the post of Superintendent in the Scheduled Caste Boys Hostel, Balbada and was residing in a room of that hostel. The complainant is a member of high caste (not a member of Scheduled Caste or Scheduled Tribe). Some of the students submitted a complaint to the Senior Officer in regard to the attitude of untouchability of the complainant, hence, accused/respondent was deputed to make inquiry in that regard, as a result of which, the accused went to Balbada on 17-3-1994 where he recorded the statement of students of the hostel. Thereafter, accused asked the complainant to meet him at Maheshwar on 21-3-1994. On that date the complainant went to Maheshwar and met with the accused in his office where the accused told that the students have given statement against him and if the complainant wants a report in his favour, he should pay ` 2000/- to him within 8 days failing which the report will be sent against him. On this, the complainant told that he is a low paid employee and is unable to pay this much of amount but the accused remained firm on his stand. The complainant told that at the moment he is not having such amount and sometime be provided to him to arrange the money. On 28-3-1994 complainant went to meet the accused and told him that he could not arrange the money but the accused was firm and extended the time till 2-4-1994 to give the bribe. 3. The complainant was not desirous to give bribe amount, as a result of which, he submitted a complaint on 29-3-1994 to Superintendent of Police, Special Police Establishment, who summoned the Gazetted Officer and one more witness and handed over the complaint made by the complainant to go through it. 3. The complainant was not desirous to give bribe amount, as a result of which, he submitted a complaint on 29-3-1994 to Superintendent of Police, Special Police Establishment, who summoned the Gazetted Officer and one more witness and handed over the complaint made by the complainant to go through it. These witnesses made certain inquiries from the complainant and thereafter when they were satisfied that accused has made demand of bribe, the case was registered. 4. Thereafter, on submitting 20 currency notes having denomination of ` 100/- each a Constable of Special Police Establishment applied phenolphthalein powder on them and their numbers were noted down. After searching pocket of the complainant, the treated currency notes were kept in his pocket with a direction that he should not keep any other article in the right side of his pocket of trousers. The complainant was also directed that before handing over the treated currency notes to the accused, he should not come in contact with them and after handing over the bribe money he should not shake his hands with the accused. He was further directed that after the accused accepts the bribe money, a signal be given to the members of the trap party that transaction of bribe money has taken place. A pre-trap panchanama was also prepared and thereafter the trap party went to Maheshwar. The complainant was sent to handover the bribe money to the accused. After the transaction of bribe money took place, the complainant gave signal to the members of trap party as a result of which they rushed and caught hold the hands of the accused. The members of trap party introduced themselves and on being inquired from the accused it was informed that the bribe money is kept in the pocket of his shirt. The treated currency notes were sealed and seizure memo was prepared. Their numbers were tallied with pre-trap panchnama and they were found to be same. The hands of accused were subjected to Phenolphthalein powder test which was found to be positive. The tinted hand wash was sent for chemical analysis and after doing other part of investigation, the investigation was completed. 5. Their numbers were tallied with pre-trap panchnama and they were found to be same. The hands of accused were subjected to Phenolphthalein powder test which was found to be positive. The tinted hand wash was sent for chemical analysis and after doing other part of investigation, the investigation was completed. 5. After receiving the sanction order to prosecute the accused/respondent, a charge-sheet was submitted before the Special Judge who framed the charges punishable under section 7 read with section 13(1)(d) and 13(2) of the Act which accused denied and requested for the trial. 6. In order to bring home the charges, the prosecution examined as many as 9 witnesses and placed Ex.P/1 to P/32 the documents on record. 7. The defence of the accused is of false implication and his further defence is that Pappu Choudhary who was a member of trap party is the friend of complainant. According to accused, the complainant was pressurizing him to give favourable report in his favour and when he refused his prayer, he has been falsely roped in the present case. In order to prove his defence he examined two witnesses namely S.K. Tripathi (DW1) and Kutubuddin (DW2). 8. The learned Special Judge on the basis of evidence placed on record came to hold that the charges are not proved against the accused and therefore acquitted him from all the charges. 9. In this manner this appeal has been filed by the State of M. P. after obtaining the leave to file appeal. 10. The contention of Shri Soni, learned Senior Counsel/Public Prosecutor is that the prosecution has not only proved the motive but has also proved that a demand of bribe was made by the accused and it was also accepted by him and therefore the charges levelled against respondent/accused are proved. Learned Public Prosecutor submits that looking to the unimpeachable testimony of complainant which is corroborated by the evidence of independent panch witness Hari Sharan Gautam (PW3) as well as from the statement of shadow witnesses Constable Prem Singh (PW5) and Head Constable Suresh Chandra Parihar (PW6), the demand of bribe and its acceptance has been proved, but, learned Special Judge contrary to the material evidence has acquitted the accused and therefore it has been prayed that by allowing this appeal the impugned judgment be set aside and the accused be convicted with a suitable sentence. 11. 11. On the other hand Shri Abhyankar learned counsel for respondent argued in support of the impugned judgment and submitted that cogent reasons are assigned by learned Special Judge acquitting the respondent and therefore this appeal be dismissed. In support of his contention, learned counsel has placed reliance on two decisions of Supreme Court they are State vs. K. Narasimhachary, AIR 2006 SC 628 and T. Subramanian vs. State of T. N., (2006)1 SCC 401 . 12. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. 13. In a case where the charges under section 7, 13(1)(d) read with section 13(2) of the Act are levelled against the accused, prosecution is obliged to prove the motive, demand of bribe and acceptance of it by the accused and if after discharging the initial burden of proof by the prosecution, it would be for the accused to explain how he had come in possession of the bribe money and in that situation the statutory presumption would be made applicable against him and the accused is required to explain the circumstances that now he came in possession of bribe money. Needless to say, explanation should be based on preponderance and probability so that a prudent man may digest the said defence. It is also equally true that if the defence is found to be probable, due weightage should be given to it. The essential ingredients to prove the charges under section 7, 13(1)(d) read with section 13(2) of the Act have been taken into consideration by the Supreme Court in R. S. Nayak vs. A. R. Antulay and another, AIR 1986 SC 2045 which are :- (1) that the accused was a public servant; (2) that he must be shown to have obtained from any person any gratification other than legal remuneration and (3) that the, gratification should be 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 function, favour or disfavour to any person. It is immaterial whether amount is received before or after the favour is done. It is immaterial whether amount is received before or after the favour is done. To constitute an offence under this section, it is enough if :- (a) the public servant who accepts the gratification, takes it by inducing a belief or hold out that he would render assistance to the giver, and (b) the giver gives the gratification under that belief. 14. Testing the above said ingredients and tests on the touchstone and anvil of the evidence placed on record in order to ascertain whether there is cogent evidence to prove the charges or not, we shall now examine the evidence of prosecution as well as defence made by the respondent during the cross-examination on the prosecution witnesses as well as the statement of the accused recorded under section 313 of Criminal Procedure Code and the witnesses which he has examined in defence. 15. The complainant Pandri Yadav has been examined as PW1 and in his examination-in-chief he has categorically stated that in order to give favourable report in his favour accused made demand of ` 2000/- and because he was not keen enough to give any bribe, he submitted a written complaint. He has also stated that after completing the preliminary formalities the members of trap party went to Maheshwar and the complainant was sent to the office of accused, but there the accused was not found, hence this witness came out from the office and met the accused at Chauraha. On seeing the complainant, the accused asked him to accompany him to the office. In the office the accused asked whether he has brought the money and in answer to said question the complainant asked whether the bribe money should be handed over inside the office? On this, the accused suggested that we should go to the restaurant of Siyaram where we will drink lassi. Nearby the office, the restaurant of Siyaram is situated where both of them drank lassi and on seeing them, the members of trap party came nearby them. In the restaurant the accused made demand of bribe and the complainant thereafter handed over the treated currency notes to him. After the bribe money was given, a signal was given by the complainant and immediately the members of police party caught hold the hands of the accused and disclosed their identification. In the restaurant the accused made demand of bribe and the complainant thereafter handed over the treated currency notes to him. After the bribe money was given, a signal was given by the complainant and immediately the members of police party caught hold the hands of the accused and disclosed their identification. This witness has further stated that fingers of the accused were subjected to phenolphthalein powder test by dipping the fingers of his hand in the chemical solution of Sodium Carbonate and the colour of the chemical solution turned to pink. Thereafter, the gazetted officer took out the currency notes from the pocket of the accused and their numbers were tallied and they were found to be the same currency notes. In para 24 of his cross-examination this witness has admitted that Pappu Choudhary is his friend and he was accompanied with panch witnesses. Further this witness has admitted in cross-examination para 25 and 26 that along with the relevant registers the complainant was called by the accused and in this regard Ex.D/2 letter was also sent directing him to remain present on 19-3-1994. 16. We do not find any merit in the contention of learned counsel for respondent/accused that because several illegality and irregularities were found in disbursing the scholarship to the scheduled caste students by the complainant and he was also summoned by the accused along with the relevant registers, therefore, he became annoyed and falsely roped the accused. According to us, there is nothing on record in order to indicate that the report was already sent either in favour of complainant or against him, therefore, there was an occasion and motive for the accused to make the demand of bribe. 17. True, several inconsistencies during cross-examination have come out in the testimony of complainant that in the case diary statement he did not tell that firstly he went to the office of the accused where he was not found and thereafter he (accused) met complainant at Chauraha. Further complainant has denied that he has given statement to the police that first of all he along with Pappu Choudhary went to the house of accused from where accused and these two witnesses went to the hotel of Siyaram, but, according to us, these are minor discrepancies. Further complainant has denied that he has given statement to the police that first of all he along with Pappu Choudhary went to the house of accused from where accused and these two witnesses went to the hotel of Siyaram, but, according to us, these are minor discrepancies. The place of occurrence of the trap is the hotel of Siyaram and this has also not been disputed by the accused and therefore it is totally insignificant whether complainant first of all went to the house of accused or to his office. The material point is that the accused was accompanying complainant and both of them went to the hotel of Siyaram where they drank lassi. At this juncture, we would further add that when the accused found in enquiry on the basis of the statement of students of the hostel against the complainant and he was going to send the report against him, why he went along with the complainant just like a friend to a hotel and drank lassi with him. This indicates and we can infer that in order to take bribe money both of them went to the hotel of Siyaram. In this context we would like to rely on the decision of Supreme Court State represented by CBI, Hyderabad vs. G. Prem Rai, (2010) 1 SCC 398 . 18. There is positive evidence of complainant that in the hotel the accused made demand of bribe and on making such demand, the treated currency note were handed over by the complainant to the accused. It has also been borne out from his testimony that on seeing the complainant and accused coming to the hotel, the members of trap party sat in the same hotel and were observing the incident secretly. In para 64 of his cross-examination a suggestion put to complainant that accused did not accept any bribe money, has been denied by him. This suggestion is also denied that complainant forcibly thrusted the bribe money in the pocket of accused and he (accused) was shouting that why complainant is giving money and why he is forcibly thrusting the money in his pocket. The factum of throwing the treated currency notes on the floor by the accused has also been denied by him. This suggestion is also denied that complainant forcibly thrusted the bribe money in the pocket of accused and he (accused) was shouting that why complainant is giving money and why he is forcibly thrusting the money in his pocket. The factum of throwing the treated currency notes on the floor by the accused has also been denied by him. At this juncture, we would like to mention that there is overwhelming oral and documentary evidence that the bribe money (treated currency notes) were found in the pocket of accused and they were not found lying on the ground. In support of this defence, the accused has not examined any witness and therefore this defence of the accused cannot be accepted. 19. The independent panch witness Hari Sharan Gautam (PW3) who is a gazetted officer has categorically stated in para 7 of his examination-in-chief that fingers of accused were subjected to phenolphthalein powder test which was found to be positive since on dipping of his fingers colour of solution turned to pink. Thereafter a fresh solution of Sodium Carbonate was prepared and hands of this panch witness were also subjected to phenolphthalein powder test but on dipping the fingers the colour of solution did not change. Further this witness has stated that on the instructions of Dy. S. P. the inquiry was made by this witness where the bribe money has been kept and on the instructions of Dy. S.P. this witness took out the treated currency notes from the pocket of the accused and they were counted. Their numbers were also tallied with the pre-trap panchnama and they were found to be the same. The relevant panchnama (Ex.P/3) was also prepared. In para 9 this witness has stated that fresh solution of sodium carbonate was prepared in which fingers of his hands were dipped and this time the colour of solution was turned to pink because he came in contact with treated currency notes. In para 21 of his cross-examination a suggestion was given that on the way to Maheshwar at one restaurant members of trap party took tea but this has been emphathetically denied by him and firmly stated that straightway they went to Maheshwar and they did not stop in between. In para 21 of his cross-examination a suggestion was given that on the way to Maheshwar at one restaurant members of trap party took tea but this has been emphathetically denied by him and firmly stated that straightway they went to Maheshwar and they did not stop in between. In para 26 of his cross-examination this independent witness has stated that before he took out the bribe money from the pocket of respondent, his hands were subjected to phenolphthalein powder test but colour of solution did not change and thereafter when he took out the currency notes from the pocket of accused and again his hands were tested in the chemical solution, this time the result of chemical test was found to be positive. This witness was cross-examined at length but despite there being a roving cross-examination over him, he was throughout remained firm on material points and therefore we are of the view that testimony of this independent witness is fully reliable. His evidence cannot be somersaulted or even diluted merely because he was nearby the hotel and was not hearing the conversation took place between the accused and complainant. The evidence of this witness in respect to phenolphthalein powder test is very material and is in favour of the prosecution, but, which has not been placed reliance by the Special Judge on account of minor discrepancies carved out from the evidence of this witness. 20. The evidence of complainant and independent witness is further corroborated by the evidence of Suresh Chandra Parihar (PW6) who has categorically stated that when the accused came along with the complainant in the hotel they were already sitting in the said hotel in front of them on the different chairs. The accused made demand of bribe as a result of which the complainant took out the bribe money from his trousers and handed over to accused which he kept in the pocket of his shirt. He has also proved the phenolphthalein powder test conducted on the fingers of independent panch witness Hari Sharan Gautam (PW3) before and after taking out the bribe money and therefore his evidence is also quite reliable. 21. The other witness is Virendra Singh, who is Investigating Officer and who was also a member of trap party and his evidence is also reliable. 21. The other witness is Virendra Singh, who is Investigating Officer and who was also a member of trap party and his evidence is also reliable. Hence, according to us, the initial burden of making demand of bribe by the accused and accepting the same has been proved by the prosecution. The bribe money has also been seized from the possession of the accused and therefore in the absence of proving the defence it is presumed under section 20 of the Act that firstly accused had made demand of bribe and thereafter accepted the same. In this regard we may profitably place reliance on the decision of Supreme Court G. Prem Raj (supra). 22. The decision of T. Subramanian (supra) placed reliance by learned counsel for respondent is not applicable because in that case there was no occasion for accused to make the demand of bribe but in the present case there was an occasion to make demand of bribe by the accused and there is a motive because the report was to be submitted by the accused to the higher authorities. The decision of Narasimhachary (supra) placed reliance by learned counsel for respondent is also not applicable because in that case also, the certificate was already forwarded and signed by the forwarding authority before the alleged demand of bribe was made by the accused. However, in the present case the situation is otherwise because the report against the complainant was not sent by the accused to the higher authorities. On analyzing the evidence of prosecution witnesses, the only inference which can be drawn is that accused was having motive to make the demand of bribe from complainant and he also accepted the same. The defence which the accused has put-forth in para 64 of the cross-examination that complainant was forcibly thrusting the currency notes in his pocket and accused threw those currency notes, has not been found to be proved by any witness in the defence. The accused has examined only two defence witnesses S. K. Tripathi (DW1) and Kutubuddin (DW2) and they are the employees of the office of the accused and they have stated that there was a complaint against the complainant which was being inquired by the accused and nothing more. 23. The accused has examined only two defence witnesses S. K. Tripathi (DW1) and Kutubuddin (DW2) and they are the employees of the office of the accused and they have stated that there was a complaint against the complainant which was being inquired by the accused and nothing more. 23. True, normally the prosecution should not have allowed the interested witness as a member to the trap party but Pappu Choudhary (PW2) who is a friend of complainant was declared hostile by the prosecution. However, looking to the evidence of complainant as well as that of independent panch witness who is a gazetted officer and also from the testimony of other members of the trap party, the guilt of accused is proved. 24. For the reasons stated hereinabove, we are unable to uphold the judgment of acquittal and the same is hereby set aside and it is hereby held that the charges under sections 7, 13(1)(d) read with section 13(2) of the Act are proved against the accused/respondent and he stands convicted under these sections. 25. The question would now rest what would be the appropriate sentence to be passed against him. Certainly now the respondent may lose his job and therefore looking to the overall circumstances he is hereby sentenced to suffer 6 months SI and fine of Rs. 1000/- in default, 1 month SI under section 7 of the Act and 1 year SI and fine of Rs. 1000/- in default, 1 month SI under section 13(1)(d) read with section 13(2) of the Act. Needless to say both the sentences shall run concurrently. 26. Ex-consequenti, this appeal succeeds and is hereby allowed. The judgment of absolvitur acquitting the respondent passed by learned Special Judge is hereby set aside and the respondent is hereby convicted for the charges punishable under sections 7, 13(1)(d) read with section 13(2) of the Act to serve out the sentence which we have already mentioned hereinabove. The respondent is on bail, his bail bonds shall stand cancelled after he surrenders on or before 12th March, 2012 before learned Special Judge who shall send the respondent to jail to serve out the sentence. In case respondent fails to appear on or before 12th March, 2012 the learned Special Judge shall issue notice and would take appropriate action against his surety. The arrest warrant shall also be issued against the respondent. In case respondent fails to appear on or before 12th March, 2012 the learned Special Judge shall issue notice and would take appropriate action against his surety. The arrest warrant shall also be issued against the respondent. After sending the respondent to jail to serve out the sentence, learned Special Judge shall intimate the Registry of this Court. The Principal Registrar of this Court is hereby directed to send the original bail bonds papers to the learned Special Court and the copy thereof be retained in this file for the record. He is further directed to send the record of learned Special Court to that Court so as to reach much prior to 12th March, 2012.