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2012 DIGILAW 221 (CHH)

MEERA UPADHYAY v. STATE OF M. P.

2012-08-30

MANINDRA MOHAN SHRIVASTAVA

body2012
JUDGMENT 1. This criminal appeal is directed against the judgment of conviction and order of sentence dated 29th July, 1998 passed by learned Special Judge. Bilaspur in Special Case No. 1/1995, whereby and whereunder, the appellant has been convicted under Section 7 and Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as the ‘Act of 1988’) and sentenced to undergo R.I. for 6 months & fine of Rs. 500/- under Section 7 of the Act of 1988 and R.I. for 1 year & fine of Rs. 500/- under Section 13(1)(d) 1 Section 13(2) of the Act of 1988. In default of payment of fine on both count, additional imprisonment of 3 months. 2. Case of the prosecution, in brief, is that when the appellant was posted as In-charge Block Development Officer at Pendra, where complainant S.L. Yadav was posted as Accountant, appellant demanded a bribe of Rs.400/- towards clearance of pay-bills of the complainant. 3. According to the case of the prosecution, a complaint in Ex. P- 1 was lodged by S.L. Yadav (P.W.2) in the office of Dy. Superintendent of Police, Lokayukt Officer, Bilaspur complaining that leave applied in respect of 7 days of the month of July, 1991 and 10 days of the month of August, 1991 are not being allowed and 7 days salary for the month of July and entire salary for the month of August has been withheld. Further complaint was that 7 days' leave surrender application of the month of August, 1991 has also not been allowed and for allowing leave applications and making payment, appellant-Block Development Officer is demanding a bribe of Rs.400/-. It was also complained that even after the clerk submitted the bills, it was not signed and the complainant was called and asked to give Rs.400/- and he has been called with bribe money on Tuesday, which the complainant is not willing to give. After verification of the complaint, pre-trap proceedings were drawn, wherein, currency notes were obtained from the complainant and were chemically treated with phenopthalien powder. Demonstration of mixing of phenopthalien powder with sodium carbonate was given to the complainant in the presence of two panch witnesses namely - K.R. Netam (P.W.1) and S.N. Dubey, Dy. Superintendent of Police. The currency notes were kept in the pocket of the appellant with instructions. Demonstration of mixing of phenopthalien powder with sodium carbonate was given to the complainant in the presence of two panch witnesses namely - K.R. Netam (P.W.1) and S.N. Dubey, Dy. Superintendent of Police. The currency notes were kept in the pocket of the appellant with instructions. Pre-trap panchnama was prepared in Ex.P-2. The number of currency notes were also noted therein. After completion of formalities of pre-trap arrangements, it is stated that the trap party along with the complainant went to the office of the appellant and complainant went inside the office, gave bribe money of Rs.400/- and thereafter came out. After receiving signals, trap party entered the office of the appellant and it is alleged that from the pocket of the appellant, currency notes were recovered by prosecution witnesses. Thereafter, hands of the appellant, currency notes, pocket part of shirt and wallet were washed in the solution of sodium carbonate and wash were sealed and kept in separate bottles. A trap panchnama in Ex.P-5 was prepared in the presence of panch witnesses- K.R. Netam (P.W.1) and S.N. Dubey, Dy. Superintendent of Police. Thereafter, relevant records and register of the officer were seized vide Ex. P-6, P-7 & P-8. Currency notes and shirt worn by the appellant were also seized vide Ex.P-3. A wallet along with cash and telegraph receipt was seized vide Ex.P-4. A dehati nalisi was recorded in Ex.P-12, which was followed by registration of Fir in Ex.P-13 in the police station. The samples of hand wash collected were sent for examination to Forensic Science Laboratory (FSL) vide Ex.P-16 and the report of FSL was received in Ex.P-17. After usual investigation and obtaining sanction for prosecution vide order dated 1.10.1994 (Ex.P-39), charge sheet was filed in the Court on 14.2.1995. On the basis of material contained in the charge sheet, charges were framed against the appellant alleging commission of offence under Section 7 and 13(1)(d) read with Section 13(2) of the Act of 1988. The appellant abjured guilt and demanded trial. The appellant was examined in respect of incriminating evidence and circumstances appearing against him. In his defence, the appellant stated that he had made a complaint against the working and functioning of the complainant and even a report was lodged in the police station. The appellant abjured guilt and demanded trial. The appellant was examined in respect of incriminating evidence and circumstances appearing against him. In his defence, the appellant stated that he had made a complaint against the working and functioning of the complainant and even a report was lodged in the police station. Further defence was that the office bearer of Employees Union had approached him and requested him to give some financial aid to the complainant, therefore, he had given loan to the complainant, which loan was returned to him by the complainant. But he has been falsely implicated on the allegation of taking bribe. In support of his defence, the appellant filed number of documents marked as Ex.D-1 to 0-5 and also examined Asim Aas as a sole defence witness. He was put to trial. In order to prove its case, the prosecution examined as many as 10 witnesses. 4. The learned trial Court, relying upon the case of the prosecution and disbelieving the defence version of the appellant, vide impugned judgment of conviction and order of sentence, held the appellant guilty of commission of offence alleged and convicted and sentenced him as described above, against which, instant appeal has been preferred. 5. Assailing the validity and correctness of the impugned judgment of conviction and order of sentence, learned counsel for the appellant argued that the prosecution has failed to prove demand beyond reasonable doubt. In his submission, against the complainant, the appellant had already taken various disciplinary action and even show cause notice was issued to him on account of unauthorized absence and in one case of preparation of forged bill, even a report was lodged in the police station. He further submits that the complaint was made to falsely implicate him and it was at the instance of the President of the Employees Association that the appellant had given loan to the complainant and when complainant came to him to return the money by saying that loan is being repaid, the appellant was caught by the trap party which was clearly an act of a false implication at the instance of the complainant. Learned counsel further submitted that in the circumstances in which the complaint was made against the appellant by the complainant, in the absence of any corroboration of the demand, particularly taking into consideration the discrepancy in the contents of the complaint and the deposition before the Court, demand becomes doubtful. Therefore, acceptance and recovery part looses significance and no conviction can be sustained. He further submits that the defence of the appellant is proved and also well established in view of letter dated 15.10.1991 (Ex. D-4) and the evidence of Asim Aas (D.W.1) who is an office bearer, has clearly established that loan was advanced by the appellant to the complainant and it was sought to be returned and then accepted. In support of his submission, learned counsel for the appellant relied upon the judgment of the Supreme Court in the case of V. Venkata Subbarao Vs. State represented by Inspector of Police, A.P., (2006) 13 SCC 305. 6. On the other hand, learned counsel for the State supported the judgment of conviction and order of sentence and submitted that the demand of bribe by the appellant from the complainant is convincingly proved from the complaint Ex.P-l and the testimony of the complainant in which complainant S.L. Yadav (P.W.2) has categorically stated that for clearing bills and allowing leave applications, the bribe of Rs.400/- was demanded from him by the complainant. She submits that this evidence has remained uncontrovetd and there is no reason to disbelieve version of the complainant with regard to demand. Next submission of learned counsel for the State is that the evidence of disciplinary action by the appellant against the complainant does not by itself render the story of demand doubtful because there is no material contradiction, omission so as to render the story of demand doubtful particularly in the background of an admitted position that the appellant was the concerned competent authority, who was to clear the bills of the complainant and the evidence has also come that on various occasions, clerical staff had approached the appellant in connection with his signatures on the bills of the complainant, which was not done. Learned counsel for the State next contended that the trap party caught the appellant red-handed and the appellant also admitted having received the money, recovery of which has been proved by him and the chemical test has also turned positive, showing presence of phenopthalien powder in the hand wash of the appellant and cloth as also currency notes. The number of currency notes as noted in the pre-trap panchnama have been tallied and found to be the same as recorded in pre-trap panchnama. According to learned counsel for the State, the defence of the appellant that the loan was advanced by him to the complainant in view of a request in writing made by the office bearer of the Union sounds highly improbable, because it is the case of the appellant and the evidence which has come on record shows that the complainant was aggrieved by actions initiated against him by the appellant. Therefore, it is wholly against natural conduct that one, who is taking disciplinary action and lodging report against his subordinate, would advance any loan. Further the evidence of Asim Aas (D.W.1) with regard to the date and time of place of advancing loan is neither here nor there. Therefore, this defence is an afterthought, falsehood and does not withstand the test of preponderance of probabilities so as to be accepted as plausible or probable defence. 7. I have considered the rival submissions made by learned counsel for the parties and perused the records. 8. In the case or Panalal Damodar Rathi Vs. State of Maharashtra, AIR 1979 SC 1191 (supra), the Supreme Court observed as under : "8. There could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the Indian Penal Code making the person who offers bribe guilty of abetment of bribery, the complainant cannot be placed on any better footing than that of an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon." 9. The status of person offering bribe and the caution required while assessing his evidence implicating a Govt. servant was examined by the Supreme Court in its subsequent decision in the case of M.O. Shamsudhin Vs. State of Kerala, 1995(3) SCC 351 , wherein, it was held as under : "12. The status of person offering bribe and the caution required while assessing his evidence implicating a Govt. servant was examined by the Supreme Court in its subsequent decision in the case of M.O. Shamsudhin Vs. State of Kerala, 1995(3) SCC 351 , wherein, it was held as under : "12. Now confining ourselves to the case of bribery it is generally accepted that the person offering a bribe to a public officer is in the nature of an accomplice in the offence of accepting illegal gratification but the nature of corroboration required in such a case should not be subjected to the same rigorous tests which are generally applied to a case of an approver. Though bribe-givers are generally treated to be in the nature of accomplices but among them there are various types and gradations. In cases under the Prevention of Corruption Act the complainant is the person who gives the bribe in a technical and legal sense because in every trap case wherever the complaint is filed there must be a person who has to give money to the accused which in fact is the bribe money which is demanded and without such a giving the trap cannot succeed. When there is such a demand by the public servant from a person who is unwilling, and if to do public good approaches the authorities and lodges a complaint, then in order that the trap succeeds he has to give the money. There could be another type of bribe-giver who is always willing to give money in order to get his work done and having got the work done he may send a complaint. Here he is a particeps criminis in respect of the crime committed and thus is an accomplice. Thus there are grades and grades of accomplices and therefore a distinction could as well be drawn between cases where a person offers a bribe to achieve his own purpose and where one is forced to offer bribe under a threat of loss or harm that is to say under coercion. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. A person who falls in this category and who becomes a party for laying a trap stands on a different footing because he is only a victim of threat or coercion to which he was subjected to. Where such witnesses, fall under the category of 'accomplices' by reason of their being bribe-givers, in the first instance, the court has to consider the degree of complicity and then look for corroboration if necessary as a rule of prudence. The extent and nature of corroboration that may be needed in a case may vary having regard to the facts and circumstances." What therefore, emerges from the principles enunciated by the Supreme Court is that the complainant's evidence has to be scrutinized carefully and the Court has to consider the degree of complicity and then look for corroboration, if necessary, as a rule of prudence. The extent and nature of corroboration that may be needed in a case, may vary, having regard to the facts and circumstances. Evidence on record led by the prosecution, as also by the defence, therefore, is required to be scrutinized in order to find out as to whether the prosecution has been able to prove beyond reasonable doubt the demand, acceptance and recovery. 10. In this case there is an additional circumstance which requires this Court to test the story of demand with little more caution and care and that is - admission on the part of complainant S.L. Yadav (P.W.2), who has admitted in para-13 of his testimony that in respect of certain irregularities and misconduct, the appellant had initiated disciplinary action against him. 11. According to contents of complaint (Ex.P-1), complainant had submitted application for grant of leave in respect of 7 days of the month of July and 10 days of the month of August in the year 1991 as also application for surrender of earned leave of 7 days in the month of August, 1991. It was stated in the complaint that the applications are not being allowed and salary of 7 days for the month of July and entire salary for the month of August, has been withheld. In the• complaint, it has been stated that a bribe of Rs. 400/- is being demanded from him for allowing the applications and making payment. It was stated in the complaint that the applications are not being allowed and salary of 7 days for the month of July and entire salary for the month of August, has been withheld. In the• complaint, it has been stated that a bribe of Rs. 400/- is being demanded from him for allowing the applications and making payment. It was also complained that when clerk submitted the bills, the appellant did not sign and called the complainant to say that unless he pays Rs.400/-, bills would not be singed and he, therefore, agreed to pay the amount. It is further stated that he has been called on Tuesday for payment of the said amount. In his evidence, complainant S.L. Yadav (P.W.2) has stated that his applications for grant of leave and for encashment upon surrender of leave were not being considered and salary was withheld. Though in the complaint as well as in the evidence, it has been stated that Rs.400/- has been demanded, but it has not been stated that as to when and at which place such demand was made by the appellant. Moreover, if the version of the complainant has to be believed, the demand was being raised by the appellant for not only allowing the various pending applications for leave and encashment of surrendered earned leave as also for payment of salary for the month of July and August. The prosecution's own documents placed as Ex.P-21 up to 27 and P-38 clearly go to show that the various pending applications with regard to grant of leave as also encashment of surrendered leave submitted by the complainant from time to time, were prepared by the concerned clerk along with pay bills on 10.10.1991. 12. B.M. Namdeo (P.W. 8), UDC, has deposed in para-2 to 5 of his deposition that after preparation of various bills including the orders with regard to grant of leave on various applications, they were taken to the appellant at Gourela, but the appellant was not available. He further stated that number of bills of other employees including that of the complainant were taken to the appellant, but, appellant was not present in the Headquarter, therefore, he came out with all bills at Pendra and thereafter when again attempt was made appellant could not be contacted. He further stated that number of bills of other employees including that of the complainant were taken to the appellant, but, appellant was not present in the Headquarter, therefore, he came out with all bills at Pendra and thereafter when again attempt was made appellant could not be contacted. As he had to proceed on leave, he instructed V.K. Kewarth, UDC, to get the bills signed by the appellant. V.K. Kewarth (P.W.5) has also categorically stated that he had also proceeded on leave and, therefore, the bills were kept and those bills could not be placed before the appellant for being signed. From the aforesaid evidence of the prosecution, it is clear that the bills which were prepared on 10.10.1991 were never placed before the appellant. Therefore., The story of the complainant that his bills were not being cleared and the appellant called him to say that unless bribe is paid, bills would not be cleared, becomes improbable in the facts and circumstances of the case when bills were never placed before the appellant. 13. There is overwhelming evidence on record to show that the appellant had taken certain action against the complainant. Complainant -S.L. Yadav (P.W.2) in para 13 of his deposition in the cross-examination, has clearly admitted that an explanation memo was given to the complainant which was torn by him. This fact is also proved from the notings made in Ex.P-29 prepared by the appellant on 29.8.1991, which records that documents were torn by the complainant. It has also been stated by the complainant in the same deposition that the appellant was not satisfied with the work of the complainant had given a warning and had also called for his explanation. This fact is also fortified from explanation notice (Ex.P-33) issued on 7.8.1991, by which the appellant had called for explanation of the complainant. Soon thereafter, the appellant submitted the application on 30.8.1991 (Ex.P-34) praying for grant of earned leave in respect of the period of absence. The evidence in para-12 to 15 of deposition of complainant- S.L. Yadav (P.W. 2) shows that the complainant himself has been found to be a disobedient Govt. servant indulging in various acts of irregularities and misconduct and even the predecessor in the office of the appellant had taken action against him. The evidence in para-12 to 15 of deposition of complainant- S.L. Yadav (P.W. 2) shows that the complainant himself has been found to be a disobedient Govt. servant indulging in various acts of irregularities and misconduct and even the predecessor in the office of the appellant had taken action against him. It has also come in the evidence of the complainant himself that there was a charge on him that he had prepared a forged document to take out salary of one Gyaneshwar Prasad. In para 15 of his deposition, he has admitted that departmental inquiry is pending against him with regard to drawing provident fund under the forged signature and in that regard, an order dated 16.12.1992 (Ex.D-1) was received by him. All these proved circumstances show that the complainant himself is a person facing number of inquiries at departmental level. Though complainant says that he made a complaint regarding nonpayment of his salary to number of persons as deposed in para-16 of his evidence none of those persons have been examined to corroborate that the complaint was complaining about non-payment of salary or any other kind of demand of bribe by the appellant. Not only complainant but V.K. Kewarth, (P.W. 5) has also stated that the complainant was indulged in activities of putting signatures without attending the office, regarding which, complaint was made to the Block Development Officer and in para-4 of his deposition, he has further stated that with regard to fraud with the bank, information was given to the appellant and the appellant sought explanation of the complainant. B.M. Narndeo (P.W.8) has also stated in para-8 of his testimony that the complainant was in the habit of remaining absent and then putting his signature and when appellant objected, then he indulged in abuses. It is also seen from the contents of Ex.P-27 that the leave application as also application for encashment against surrendered earned leave were placed before the appellant and the appellant on 3.10.1991 itself signed the proposal. Therefore, the allegation that the complainant's leave applications and leave encashment application are not being considered also turns out to be false allegation. It is relevant to note that according to Ex. Therefore, the allegation that the complainant's leave applications and leave encashment application are not being considered also turns out to be false allegation. It is relevant to note that according to Ex. P- 21, 22 & 23, the bills were prepared on 10.10.1991 and B.M. Namdev (P.W. 8), clearly deposes in para -6 of his deposition that all the applications of leave of the complainant were allowed and the bills were not only relating to the appellant, but of other person also. V.K. Kewarth (P.W. 5) says that on 11.10.2011, B.M. Namdev (P.W.9) had taken all the bills to Gourela for signature of the appellant. The evidence of aforesaid two witnesses show that the appellant was not available for signature on the bills and firstly, B.M. Namdev (P.W.8) proceeded on leave and thereafter V.K. Kewarth (P.W.5) also proceeded on leave and, therefore, the bills could not be signed. Now, if in this background, the date on which the complaint is made is noted which is 21.10.1991, serious doubt is created with regard to genuineness of the complaint, because according to the complainant, the bills were submitted before the appellant, but they were not being singed and the complainant was called and asked to give bribe of Rs.400/-. The false implication by the complainant, therefore, cannot be ruled out. 14. Learned counsel for the State laid much stress on recovery of the money from the appellant and that the appellant has accepted having received of Rs.400/- from the complainant, therefore, his acceptance attracts presumption under Section 20 of the Act of 1988 that the amount was accepted as illegal gratification. The contention of learned counsel for the State is liable to be rejected firstly for the reason that the presumption under Section 20 of the Act of 1988 could be drawn only when demand is proved. In case where demand is not proved, mere receipt or recovery of money would not attract statutory presumption under Section 20 of the Act of 1988. 15. In case where demand is not proved, mere receipt or recovery of money would not attract statutory presumption under Section 20 of the Act of 1988. 15. In the case of V. Venkota Subbarao (supra), it has been held that in order to prove the charges under Section 7, 13(1)(d) of the Prevention of Corruption Act, it is obligatory on the part of the prosecution to prove that the accused made any demand of bribe and the statutory presumption under Section 20 of the Prevention of Corruption Act that the accused has accepted the money towards bribe cannot be accepted unless and until it is proved that there was some motive or reward for which the demand of bribe was made and the demand of bribe is proved. In the case of T. Subramanian Vs. State of T.N., (2006) 1 SCC 401 , it has been held that mere proof of receipt of money by the accused in absence of proof of demand and acceptance of money as illegal gratification would not be sufficient to establish the guilt of the accused. In the case of Sita Ram Vs. State of Rajasthan, (1975)2 SCC 227 , the Supreme Court held that when story of demand of bribe by the accused appellant from the complainant was not proved and even story of demand of money by the complainant was not established beyond reasonable doubt, the rule of presumption that the money was accepted as bribe could not be resorted in order to convict the accused. In the case of Suraj Mal Vs. State (Delhi Administration), AIR 1979 SC 1408 , it has been held that in case of bribery, mere recovery of money divorced from the circumstances under which it is paid, it would not sufficient to convict the accused when the substantive evidence in the case, is not reliable, In Jagdish Chandra Makhija Vs. State of Madhya Pradesh, 1990 MPLJ 239 it has been held that in a trap case when initial part of the story of demand and offer is found to be untrustworthy, testimony of the complainant cannot be accepted. 16. In the case of A. Subair Vs. State of Madhya Pradesh, 1990 MPLJ 239 it has been held that in a trap case when initial part of the story of demand and offer is found to be untrustworthy, testimony of the complainant cannot be accepted. 16. In the case of A. Subair Vs. State of Kerala, (2009) 6 SCC 587 it has been held that: "The legal position is no more res integra that primary requisite of an offence under Section 13(1)(d) of the Act is proof of a demand or request of valuable thing or pecuniary advantage from the public servant. In other words, in the absence of proof of demand or request from the public servant for a valuable thing of pecuniary advantage, the offence under Section 13(1)(d) cannot be held to be established." "Mere recovery of currency notes (Rs.20/- and Rs.5/-) denomination, in the facts of the present case, by itself cannot be held to be proper or sufficient proof of the demand and acceptance of bribe. When the evidence produced by the prosecution has neither quality nor credibility, it would be unsafe to rest conviction upon such evidence." 17. View taken in the case of Suraj Mal (supra), was reiterated in the case of C. M Girish Babu Vs. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 holding that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of reliable evidence to prove demand of bribe or to show that the accused voluntarily accepted the money. 18. With the abundance of the material as discussed above, this Court is of the considered opinion that in the absence of an independent corroboration on demand, it would be unsafe to rely upon the complaint regarding demand made by the appellant from the complainant. 19. There is yet another aspect of the matter which needs consideration. The appellant has come out with a specific defence that what was received by him from the complainant was an amount of loan repaid to him. 19. There is yet another aspect of the matter which needs consideration. The appellant has come out with a specific defence that what was received by him from the complainant was an amount of loan repaid to him. R.J. Toppo (P.W. 7), in para-6 of his testimony, has also stated that at the time of trap, when the appellant was asked with regard to money, then he stated that the amount was received by him towards repayment of loan. In his cross-examination, he also stated that the complainant gave the money by stating that he is repaying the amount of loan. Premchand Tiwari (P.W. 10) also says the same thing that when at the time of trap, the appellant was asked, he stated that he has .received back the amount of loan from the complainant, though complainant denied, this fact. Thus, from the aforesaid evidence of the prosecution, it is clear that immediately at the spot where trap was laid appellant/accused offered an explanation that the receipt amount was towards return of loan by the complainant -S.L. Yadav. 20. In his accused statement, the appellant has come out with specific defence that at the request of the office bearer of the Union, he had advanced loan to the complainant. This is supported from the evidence of Thandaram Sahu (P.W.3), who has stated in para-7 of his cross-examination that on the occasion of programme of Minister- Porte, he was present there and at that time, complainant S.L. Yadav had come and demanded money and the appellant gave him Rs.500/-. Asim Aas (D.W.1) has stated in para-2 that he was the President of Class-III Employee Association, Tahsil Branch at the relevant time. According to him, complainant approached him with the complaint that he has not received salary for two months and requested him to help him out, whereafter, he gave a letter on 15.10.1991 (Ex. D-2), requesting for release for salary and also to provide some immediate financial assistance. Contents of letter dated 15.10.1991 (Ex.D-2) shows that request was made by the said witness to make arrangement for some immediate finance arrangement to the complainant. In para-4 of his deposition, Asim Aas (D.W.1) has stated that when he met S.L. Yadav after 2-3 days, he informed that the appellant has given him some loan. Nothing could be elicited from the cross-examination of the said witness so as to disbelieve his version. In para-4 of his deposition, Asim Aas (D.W.1) has stated that when he met S.L. Yadav after 2-3 days, he informed that the appellant has given him some loan. Nothing could be elicited from the cross-examination of the said witness so as to disbelieve his version. Asim Aas (D.W.1) is the leader of Class-III Employees Association and there is no reason why he would tell lie in favour of an officer and against the interest of a Class-III employee. Therefore the defence of the appellant in the above factual scenario of the evidence available on record cannot be said to be wholly baseless, frivolous or doubtful, on the other hand, it Appears to be possible and plausible tested on the touchstone of preponderance of probabilities. 21. This Court in the case of State of MP. (now C.G.), through Lokayukt Vs. L.K. Sahu, Criminal Appeal No. 1669/1997, decided on 3-8-2012 while examining degree of proof required in a case where the accused comes out with the defence, relying upon the judgment of the Supreme Court, held as under :- 15. ----------xxxxx---------- "It has to be borne in mind that though the burden of the prosecution is heavy upon it to prove guilt of accused beyond reasonable doubt, while testing the veracity of the defence of the accused, same degree of proof is not required. Probability and possibility of defence and explanation of the accused is not required to be tested, by applying beyond reasonable doubt criteria but on preponderance of probabilities. 16. In the case of Aher Raja Khima Vs. State of Saurashtra, AIR 1956 S.C. 217 , it has been held that when an accused person offers a reasonable explanation of his conduct, then, even though he cannot prove his assertions, they should ordinarily be accepted unless the circumstances indicate that they are false. In the case of bribery, if the prosecution proves acceptance of amount by the accused and the amount does not represent the legal remuneration in any form, the presumption at once arises. However, {he accused may discharge the onus through preponderance of probability, as held by the Supreme Court in the case of Mahesh Prasad Gupta Vs. State of Rajasthan, AIR 1974 SC 773 and Trilok Chand Jain Vs. State of Delhi, 1979 SC 666. However, {he accused may discharge the onus through preponderance of probability, as held by the Supreme Court in the case of Mahesh Prasad Gupta Vs. State of Rajasthan, AIR 1974 SC 773 and Trilok Chand Jain Vs. State of Delhi, 1979 SC 666. The principles of law regarding appreciation of evidence in bribery and trap cases, generally speaking, have been held to be as below : "(a) that the burden of proving the prosecution case, generally lies on the prosecution even in case of trap or bribery, this burden is not shifted by Section 4 of the prevention of Corruption Act; (b) that Section 4 has got limited application only for raising of presumption regarding the motive of the taking of money provided it is proved that the money was obtained or accepted by the accused; (c) that even in raising the presumption under Section 4, the act of acceptance or obtaining must be willful, voluntary and with conscious mind; (d) that even where such a presumption is drawn, the accused can rebut it by showing there is a plausible explanation and the basis of preponderance of probability of other theory; (e) the accused is not required to rebut this presumption by leading evidence beyond reasonabte doubt. But all that is required to show is to establish preponderance of probability in his favour; (t) that the witnesses of trap are not to be discharged as accomplices but in a given case the Court can insist on independent corroboration for believing their testimony. Thus, for example, in the case of Pannalal Damoder Rathi Vs. State of Maharashtra, AIR 1979 SC 1191 , their Lordships of the Supreme Court have observed that - there could be no doubt that the evidence of the complainant should be corroborated in material particulars. After introduction of Section 165-A of the Indian Penal Code making the person who offers bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that or an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon." 17. In the case of Punjabrao Vs. After introduction of Section 165-A of the Indian Penal Code making the person who offers bribe guilty of abetment of bribery the complainant cannot be placed on any better footing than that or an accomplice and corroboration in material particulars connecting the accused with the crime has to be insisted upon." 17. In the case of Punjabrao Vs. State of Maharashtra, AIR 2002 SC 486 , it has been accepted to be a well settled legal proposition by the Supreme Court that where the accused offers explanation for receipt of an alleged amount, he is not required to establish his defence by proving beyond reasonable doubt but may establish the same by preponderance of probability. In yet another decision in the case of T. Subramaniam Vs. The State of Tamil Nadu, 2006 (1) Crimes 75, it was held that if - the reason for receiving the amount was explained and the explanation was probable and reasonable, then the accused has to be acquitted." 22. Therefore, what is required to be examined is whether defence of the accused is so probable and plausible, tested on the touchstone of preponderance of probabilities, that the case of the prosecution becomes doubtful warranting acquittal by giving accused benefit of doubt. 23. Applying the aforesaid principles to the facts and circumstances of the present case and close analysis of the evidence and other established circumstances, the defence of the appellant appears to be probable so as to explain the receipt of money. 24. In the result, the impugned judgment of conviction and order of sentence is unsustainable in law. The same is liable to be set aside and is accordingly set aside. The appellant is acquitted of the charges. Bail bonds and surety stand discharged. 25. The appeal is accordingly allowed. Appeal Allowed.