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2012 DIGILAW 303 (CHH)

LEELA BAI v. STATE OF M. P.

2012-11-09

MANINDRA MOHAN SHRIVASTAVA

body2012
JUDGMENT 1. This appeal is directed against the judgment of conviction and order of sentence dated 1.8.1997 passed by learned Special Judge, Raipur, in Special Case No. 138/91, whereby and where under the deceased appellant-B.L. Dharshan is held guilty of commission of offence under Section 7 and Section 13 (1) (d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 (for short "the Act of 1988") and sentenced to undergo R.I. for 1 year and fine of Rs. 1000/- under Section 7 and R.I. for 1 year and fine of Rs. 1000/- under Section 13 (1) (d) read with Section 13 (2) of the Act of 1988. In default of payment of fine on both count, additional S.I. for 3 months. Both the sentences have been directed to run concurrently. 1. Prosecution story, as unfolded from the records of the case and judgment of the learned trial Court, is that complainant-Premlal Verma (P.W.2) submitted application on 25.4.1988 for supply of copy of revenue records relating to land belonging to his father before the Tahsildar, on which, order was passed directing appellant/accused to supply copies. When complainant approached the appellant, bribe of Rs. 100/- was demanded for supply of copy. As the complainant was not willing to give bribe, complaint in Ex.P-2 was filed in the Vigilance Office. Taking cognizance of the report, panch witnesses were called. Currency notes produced by the complainant were tainted with phenolphthalein powder and their numbers were noted. Demonstration of chemical reaction of phenolphthalein powder with sodium carbonate was given to the complainant in the presence of panch witnesses Arjun Singh Sisodia (P.W.3) and Sangram Singh (P.W.4). Tainted currency notes were kept in the pocket of the complainant with instructions not to touch it before handing it over to the appellant on demand. The pre-trap proceedings were reduced in writing by way of pre-trap panchnama in Ex.P-3. The trap party proceeded to the house of the appellant. Further case of the prosecution is that the appellant came out of his house and when bribe money was demanded and accepted by him, trap team arrived at the spot. According to prosecution, though the appellant accepted bribe money, but, having seen the vigilance team, threw the same on the ground. Currency notes were lifted by one of the panch-witnesses and seized vide seizure memo Ex.P-4. According to prosecution, though the appellant accepted bribe money, but, having seen the vigilance team, threw the same on the ground. Currency notes were lifted by one of the panch-witnesses and seized vide seizure memo Ex.P-4. The relevant documents relating to supply of revenue records were also seized vide Ex.P-5. Hands of the appellant, complainant were washed in the solution of sodium carbonate and according to prosecution, it turned pink. Handwash collected were kept and sealed in bottles. FIR (Ex.P-7) was lodged and investigation was carried out. The sealed bottles were sent to Forensic Science Laboratory (FSL) Sagar and report (Ex.P-9) was received from FSL, which contained a report showing traces of phenolphthalein, found in the hand wash of the appellant and complainant both. Spot map was prepared in Ex.P-10. After obtaining sanction for prosecution vide Ex.P-1 and completion of investigation, charge sheet was filed on 26.7.1991. On the basis of material contained in the charge sheet, learned trial Court framed charges against the appellant alleging commission of offence under Section 7 and Section 13 (1) (d) read with Section 13 (2) of the Act of 1988. The appellant abjured guilt and demanded trial. 2. In order to prove its case, prosecution examined as many as 9 witnesses. Appellant was examined by the Court in respect of the incriminating evidence and circumstances appearing against him. Appellant denied and came out with defence that complainant was insisting on issuance of copy of khasra entries by recording name of the complainant along with the name of his father, which was refused. Therefore, the appellant has been falsely implicated. In order to substantiate his defence that he had not accepted bribe, but an attempt was made to thrust the same in his hands, appellant examined Mohit Ram (D.W.1), as a sole defence witness. 3. Relying upon the case of the prosecution and disbelieving the defence of the appellant, the learned trial Court held the appellant guilty for commission of offence alleged and sentenced him as described above, against which, this appeal has been preferred. 4. 3. Relying upon the case of the prosecution and disbelieving the defence of the appellant, the learned trial Court held the appellant guilty for commission of offence alleged and sentenced him as described above, against which, this appeal has been preferred. 4. Assailing the correctness and validity of the impugned judgment of conviction and order of sentence, learned counsel for the appellant argued that the entire criminal proceedings and impugned conviction are vitiated as the trial Court committed serious illegality in framing charges under the provision of the Act of 1988, whereas, the incident is alleged to happened on 9.5.1988 i.e. prior to coming into force of the Act of 1988. According to him, at the time of alleged commission of offence, earlier Act namely the Prevention of Corruption Act, 1947 (for short "the Act of 1947") was in force and the appellant could not be tried much less convicted for commission of offence under the Provision of the Act of 1988, which came into force subsequent to the alleged commission of offence and thus the conviction is violative of constitutional protection guaranteed under Article 20 (1) of the Constitution of India. Learned counsel further argued that serious prejudice has been caused to the appellant because learned trial Court, even though was inclined to impose lesser punishment, it was by operation of stringent provision contained under the Act of 1988, which resulted in imposition of sentence of one year under Section 7 of and one year under Section 13 (1) (d) read with Section 13 (2) of the Act of 1988, whereas, there is no minimum sentence prescribed under the Act of 1947. Learned counsel also argued that learned trial Court committed serious illegality and thereby serious prejudice was caused as presumption under Section 20 of the Act of 1988 has been drawn to hold the appellant guilty of alleged offence, whereas, no such presumption is available in respect of offence under the Act of 1947. Learned counsel also argued that learned trial Court committed serious illegality and thereby serious prejudice was caused as presumption under Section 20 of the Act of 1988 has been drawn to hold the appellant guilty of alleged offence, whereas, no such presumption is available in respect of offence under the Act of 1947. Learned counsel for the appellant then urged that the prosecution has failed to prove demand beyond reasonable doubt, as in the fact and circumstances of the present case, independent corroboration of the story of demand was necessary to prove the case of the prosecution, particularity when there is no independent corroboration of the story of acceptance, currency notes were not recovered from the possession of the appellant and defence witness has deposed that the appellant refused to accept the bribe offered by the complainant. It was also argued that even according to the prosecution, tainted money was not recovered from the possession of the appellant, but the currency notes were found lying on the road. Learned counsel further argued that in the absence of proof of demand, mere recovery could not be validly made a basis for conviction of the appellant. He also submitted that unless demand is proved and currency notes are recovered from the possession of the appellant, no presumption under Section 20 of the Act of 1988 could be drawn. It has also been argued that otherwise also, provision of the Act of 1988 have no application, as at the time of commission of offence provision of the Act of 1947 is applicable. In support of his submission, learned counsel for the appellant relied upon the judgments in the cases of Dataram Banjare Vs. State of Chhattisgarh 2011 Cri.LJ. 2013, Jagan M. Seshadri Vs. State of Tamil Nadu AIR 2002 SC 2399 , M.W. Mohiuddin Vs. State of Maharashtra (1995) 3 SCC 567 , Banarsi Dass Vs. State of Haryana 2010 AIR SCW 2282, R.S. Kalakapur Vs. State of Karnataka 1994 Cri.LJ. 2696 and Arun Kumar Pandey Vs. Stale of M.P 2011 (1) CGLJ 99 . 5. 2013, Jagan M. Seshadri Vs. State of Tamil Nadu AIR 2002 SC 2399 , M.W. Mohiuddin Vs. State of Maharashtra (1995) 3 SCC 567 , Banarsi Dass Vs. State of Haryana 2010 AIR SCW 2282, R.S. Kalakapur Vs. State of Karnataka 1994 Cri.LJ. 2696 and Arun Kumar Pandey Vs. Stale of M.P 2011 (1) CGLJ 99 . 5. On the other hand, learned counsel for State supported the judgment of conviction and order of sentence passed by the trial Court and argued that objection with regard to flaming of charges under Section 13 (1) (d) and Section 13 (2) of the Act of 1988 is liable to be rejected and ultimate conviction is not vitiated in the absence of any definite prejudice shown to have been caused to the appellant, as held by the Supreme Court in the case of M.W. Mohiuddin (supra). Further submission is that the gravamen of charges under the provision contained in the Act of 1947 and corresponding provision as contained under Section 7 and 13 (1) (d) of the Act of 1988 are same, therefore, no prejudice can be said to have been caused on account of framing of charges under Section 7 & 13 (1) (d) of the Act of 1988. Learned counsel for the State further submits that the case of prosecution is proved from the fact that khasra records applications of the complainant were seized from the possession of the appellant, which has been proved by independent prosecution witnesses Arjun Singh (P.W.3) and Sangram Singh (P.W.4). He further submits that two panch witnesses namely Arjun Singh (P.W.3) and Sangram Singh (P.W.4) have deposed having verified the complaint and, thereafter, the trap was arranged in which the tainted currency notes were found on the road and there is evidence on record to show that when the appellant saw the trap party approaching him, he threw the currency notes on the road. Further submission is that the FSL report showing traces of phenolphthalein in the hands of the appellant is a strong corroborative evidence to show that the appellant had handled the currency notes. Therefore, the presumption under Section 20 of the act of 1988 is liable to be drawn against him that the same was accepted as illegal gratification. Further submission is that the FSL report showing traces of phenolphthalein in the hands of the appellant is a strong corroborative evidence to show that the appellant had handled the currency notes. Therefore, the presumption under Section 20 of the act of 1988 is liable to be drawn against him that the same was accepted as illegal gratification. He further submitted that the testimony of defence witness-Mohit Ram (D.W.1) is not at all reliable and liable to be rejected, firstly for the reason that defence witness is a very close aid and friend of the appellant and secondly that in his cross examination, he admits that he did not see the transaction between the appellant and the complainant. 6. I have considered the rival submissions made by learned counsel for parties and perused the records. 7. Learned counsel for the appellant has vociferously argued to convince this Court that the impugned judgment of conviction and order of sentence is unsustainable in law because the appellant could not have charged much less convicted for commission of offence under Section 7 and 13 (1) (d) read with Section 13 (2) of the Act of 1988, as at the time of alleged commission of offence, it was the Act of 1947 which was in force and in operation. Therefore, the conviction under the Act of 1988 has violated fundamental right guaranteed under Article 20 (1) of the Constitution of India. 8. In order to appreciate this submission, it is necessary to examine the nature of protection guaranteed under Article 20 (1) of the Constitution of India. Article 20 (1) of the Constitution of India reads thus :- "(1) No person shall be convicted of any offence except for violation of a law in force at the time of the commission of the act charged as an offence, nor be subjected to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence." 9. The aforesaid constitutional provision affords protection by setting two limitations upon the law making power of the Legislature. It prohibits: (i) the making of ex-post facto criminal law i.e. making an act as crime for the first time and then making that law retrospective. The aforesaid constitutional provision affords protection by setting two limitations upon the law making power of the Legislature. It prohibits: (i) the making of ex-post facto criminal law i.e. making an act as crime for the first time and then making that law retrospective. (ii) the infliction of the penalty greater than that which might have been inflicted under the law which was in force when the act was committed. [Please see G.P. Nayyar Vs. State (Delhi Admn.) AIR 1979 SC 602 , Rao Shiv Bahadur Singh and another Vs. State of Vindhya Pradesh ( AIR 1953 SC 394 ) and Kedar Nath Bajoria, son of Ramjidas Bajoria Vs. State of West Bengal ( AIR 1953 SC 404 )] 10. Admittedly, at the time when offence is alleged to have been committed and when FIR was lodged, the Act of 1947 was in force. Moreover, the provision of Section 161 of the IPC was also in force. A comparative study and analysis of the provision contained in Section 161 of the IPC with the provision contained in Section 7 of the Act of 1988 and further similar comparison and analysis of provision contained in Section 5 (1) (d), 5(2) of the Act of 1947 with Section 13 (1) (d) read with Section 13 (2) of the Act of 1988, would reveal that the gravamen of offence under the corresponding provision, as stated above, are one and the same. Even at the time when the act of taking bribe is alleged to have been committed, it was an offence under the law in force. Present is not a case where the act alleged to have been committed by the appellant was not an offence until enactment of the Act of 1988. Thus, Section 7 of the Act of 1988 is pari materia Section 161 of the IPC and Section 13 (1) (d) read with Section 13 (2) is pari materia Section 5 (1) (d) read with Section 5 (2) of the Act of 1947. Therefore, it cannot be said that the appellant has been charged and convicted for commission of an act under an ex-post facto criminal law. In the present case, the appellant has been held guilty and sentenced to undergo R.I. for one year under Section 7 of the Act of 1988 along with fine of Rs. Therefore, it cannot be said that the appellant has been charged and convicted for commission of an act under an ex-post facto criminal law. In the present case, the appellant has been held guilty and sentenced to undergo R.I. for one year under Section 7 of the Act of 1988 along with fine of Rs. 1000/- and in default of fine, 3 months additional S.I. For commission of offence under Section 13 (1) (d) read with Section 13(2) of the Act of 1988, the appellant has been sentenced to undergo R.I. for one year and fine of Rs. 1000/-, in default of payment fine, S.I. for 3 months. The maximum punishment which could be awarded for commission of offence under Section 161 of the IPC is three years, which is more than the period of sentence actually awarded to the appellants. Similarly, the maximum punishment which could be awarded under Section 5 (2) of the Act of 1947 is seven years, which is much more than the sentence which has actually been awarded to the appellant for commission of offence awarded to the appellant. Therefore, present is also not a case where it can be said that infliction of penalty is greater than that which might have been inflicted under the law which was in force i.e. the Act of 1947, when the act was committed. Thus, the arguments that conviction of the appellant is violative of constitutional protection guaranteed under Section 20 (1) of the Constitution of India must fail. 11. The other limb of submissions that the conviction is liable to be set aside on the ground that the appellant was wrongly charged and convicted for commission of offence under the Act of 1988, needs to be examined. Relying upon the decision of the Supreme Court in the case of Jagan M. Seshadri (supra), learned counsel for the appellant contended that the charges could not be framed under the Act of 1988, but, it could be framed only under the Act of 1947. The Judgment of the Supreme Court in the case of Jagan M. Seshadri (supra) definitely holds that where the alleged act is committed and FIR is lodged when the Act of 1947 was in operation, then the charges are required to be framed under the Act of 1947 and not under the Act of 1988. The Judgment of the Supreme Court in the case of Jagan M. Seshadri (supra) definitely holds that where the alleged act is committed and FIR is lodged when the Act of 1947 was in operation, then the charges are required to be framed under the Act of 1947 and not under the Act of 1988. However, the important question which crops-up for consideration is that whether only on that ground the trial is vitiated and conviction is liable to be set aside. This issue came up for consideration before the Supreme Court in the case of M.W. Mohiuddin (supra). That was a case where the trial of the case initially commenced under Section 161 of the IPC read with Section 5 (2) of the act of 1947, but the trial Court ultimately convicted accused under the provision of new Act of 1988 and argument was advanced that on this ground trial and conviction are vitiated. The arguments was repelled by the Supreme Court thus: "9. We may incidentally refer that the learned counsel also sought to contend that the trial of the accused initially commenced under Section 161 IPC read with Section 5(2) of the Prevention of Corruption Act, 1947 but the trial court ultimately convicted the accused under the provisions of the new Act of 1988. Therefore the trial is vitiated. We see no merit in this submission. Initially no doubt on 9-12-1983 the charges were framed under Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 but when the trial actually commenced in the year 1990 the then Presiding Judge framed charges under Sections 13(d)(i), (ii) read with Section 13(2) and Section 7 of the Prevention of Corruption Act, 1988 and the trial proceeded. We do not find any objection having been taken in the trial court nor such contention was put forward in the appellate court. Even otherwise we see no prejudice has been caused to the accused since the gravamen of the charges under the relevant provisions of both the Acts in respect of these offences are the same in substance and at any rate the appellant cannot raise such a contention for the first time in this Court when in fact no prejudice has been caused to him." 12. The case of the appellant with regard to prejudice is therefore required to be examined in the light of the aforesaid judgment of the Supreme Court in the case of M.W. Mohiuddin (Supra). In para-22 of the impugned judgment of sentence, it is found that while hearing the appeal on the question of sentence, the learned trial Court came to the conclusion that a lenient view is required to be taken, however, in view of the provision prescribed, learned trial Court was inclined to impose R.I for one year, as minimum sentence, for commission of offence under Section 7 of the Act of 1988, and for offence under Section 13 (1) (d) of the Act of 1988 also R.I. for one year. No minimum sentence has been prescribed under the provision of the Act of 1947 and in an appropriate case, even if Court finds that the accused is guilty of commission of offence under the Act of 1947, instead of imposition of sentence of imprisonment, even fine could be imposed. Therefore, it appears, that it was the statutory scheme of the Act of 1988; providing for minimum sentence, once the guilt is proved, to come to the conclusion that even though lenient view is required to be taken, it would not be proper to impose only fine. Therefore, present is a case where the appellant has suffered definite prejudice. In almost similar circumstance, this Court in the case of Arun Kumar Pandey (supra), held the trial and conviction vitiated on the ground that prejudice has been caused. 13. In C.K. Damodaran Nair Vs. Govt. of India (1997) 9 SCC 477 , the Supreme Court had an occasion to consider the meaning and import of the word "obtained" used in Section 5(1)(d) of the Prevention of Corruption Act, 1947 [now Section 13(1)(d) of the Act, 1988], and it was held: (SCC p. 483, para 12) "12. The position will, however, be different so far as an offence under Section 5(1) (d) read with Section 5(2) of the Act is concerned. The position will, however, be different so far as an offence under Section 5(1) (d) read with Section 5(2) of the Act is concerned. For such an offence prosecution has to prove that the accused 'obtained' the valuable thing or pecuniary advantage by corrupt or illegal means or by otherwise abusing his position as a public servant and that too without the aid of the statutory presumption under Section 4(1) of the Act as it is available only in respect of offences under Sections 5(1) (a) and (b)-and not under Sections 5(1)(c), (d) or (e) of the Act. 'Obtain' means to secure or gain (something) as the result of request or effort (Shorter Oxford Dictionary). In case of obtainment the initiative vests in the person who receives and in that context a demand or request from him will be a primary requisite for an offence under Section 5(1) (d) of the Act unlike an offence under Section 161 IPC, which, as noticed above, can be, established by proof of either 'acceptance' or 'obtainment'." Relying upon the aforesaid decision, in another decision in the case of A. Subair Vs. State of Kerala (2009) 6 SCC 587 , in para 15 at page 591, Supreme Court held: "15.......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 a 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 or pecuniary advantage, the offence under Section 13(1) (d) cannot be held to be established." Therefore, in order to come to the conclusion as to whether a case of conviction is made out, it is required to be seen as to whether the prosecution has proved beyond reasonable doubt, the demand and acceptance of bribe by the accused. 14. 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. 14. 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. 15. In the present case, the story of demand is sought to be proved by the prosecution only on the strength of the evidence of the complainant Premlal (P.W.2). The circumstances of the present case floating on the surface are that the currency notes were not seized from the possession of the appellant, but it is the case of the prosecution itself, which is proved from the deposition of independent prosecution witness/panch witnesses Arjun Singh (P.W.3) and Sangram Singh (P.W.4) that currency notes were found lying on the road. Other important circumstance is that appellant has taken defence that the complainant insisted on entry of his name in the khasra records and supply of copy, to which, appellant refused. The appellant has examined Mohit Ram as D.W.1, who has deposed that the complainant insisted on making an entry of his name along with his father in the relevant khasra entries and supply of copy thereof, to which, the appellant refused and further, complainant offered bribe, which was refused and then the complainant sought to thrust the currency notes in the hands of appellant, which the appellant shirked off. 16. 16. Though in the complaint (Ex.P-2), the complainant states that he met with the appellant on the same day on which order was passed by the Tahsildar i.e. 5.4.1988, in his evidence before the Court, he has not stated the date on which he, for the first time, met the appellant when demand of bribe was made. A vague evidence without stating the time, date and place of demand, has been made in the evidence. If his evidence in para-1 is read, it would appear that when he contacted the appellant and demand of Rs. 100/- was made, he went to vigilance office and submitted report in Ex.P-2. However, according to complaint (Ex.P-2), Tahsildar ordered on 25.4.1988 and it is said that complainant met the appellant on that very date and, thereafter, again on the date of submitting complaint. Therefore, contents of complaint with regard to material particulars relating to time, date and place of first and second meeting, have not been stated in the evidence before the Court by the complainant. Moreover, a perusal of complaint (Ex.P-2) which is said to have been lodged on 9.5.1988 shows that complainant was called by the appellant on the next date i.e. on Monday dated 9.5.1988. The trap proceedings have also been drawn on 9.5.1988. Therefore, according to complaint, complainant was called by the appellant on the date next to the date of submission of complaint. 17. Therefore, in the aforesaid facts and circumstances, independent corroboration of demand in the facts and circumstances of the present case, becomes necessary to prove the demand beyond reasonable doubt. 18. A perusal of the spot map (Ex.P-11) proved by R.I. M.P. Rathore, (P.W.7) shows that independent panch witness-Arjun Singh (P.W.3) was standing at about 8 and 1/2 meters away from the spot where complainant and appellant were standing. The map also shows that the other independent panch witness Sangram Singh Thakur (P.W.4) was standing about 22 meters away from the spot where appellant and complainant were standing. Moreover, along with, R.D, Diwan (P.W.6) was also standing. However, neither the panch witnesses nor the police witnesses proved that they either saw the appellant accepting the bribe money offered by the complainant nor they deposed having heard any conversation between them to prove demand. Moreover, along with, R.D, Diwan (P.W.6) was also standing. However, neither the panch witnesses nor the police witnesses proved that they either saw the appellant accepting the bribe money offered by the complainant nor they deposed having heard any conversation between them to prove demand. The two panch witnesses Arjun Singh (P.W.3) and Sangram Singh (P.W.4) have very clearly stated that they did not hear any conversation between the appellant and the complainant regarding any demand of bribe. Therefore, the independent witnesses who were standing quite near to the complainant and the appellant, at an open place, have not came out with any evidence in the matter of independent corroboration to the story of demand. In the conspectus of the aforesaid evidence appearing on record and the facts and circumstances of the case discussed as above, it would be unsafe to rely on the story of demand, without any corroboration by independent evidence, direct or circumstantial. 19. Both the panch witnesses Arjun Singh Sisodia (P.W.3) and Sangram Singh (P.W.4) have clearly stated that the currency notes were laying on the road and they were recovered from there, but, none of them has deposed that they either saw the complainant handing over currency notes to the appellant and the appellant voluntarily accepting the same. The two panch witnesses Arjun Singh (P.W.3) and Sangram Singh (P.W.4) don't even testify that having accepted bribe money, the appellant threw it away while seeing the trap party and panch witness approaching him. In view of the proximity of one of the panch witness Arjun Singh (P.W.3), who was standing only 8 & 1/2 meters away from the appellant and the complainant and there being no obstruction to direct view of the spot, it is quite unusual that any attempt of handing over currency notes and accepting of the same would not be witnessed by the panch witness. 20. Though learned counsel for the State drew attention of this Court to evidence of Sang ram Singh Thakur (P.W.4) and that of R.D. Diwan (P.W.6) to submit that both of them have stated in their evidence that the complainant told them that appellant threw the bribe money on the road, this fact has not been stated by any of the two panch witnesses-Arjun Singh (P.W.3) and Sangram Singh (P.W.4). This shows that when the two panch witnesses arrived at the spot, complainant did not say that the currency notes have been thrown by the appellant on the road. Therefore, the story of the prosecution that the appellant had accepted bribe money and then threw it on the road, becomes highly doubtful. Thus, recovery of currency notes from the road and not from the possession of the appellant renders the story of the prosecution doubtful. 21. The defence of the appellant is that the complainant had approached him and insisted that his name also be recorded in the khasra records along with name of his father, to which, appellant expressed his inability. He also stated in his defence that this insistence was because the complainant wanted loan from the bank. Mohit Ram (D.W.1) has stated in para-2 of his evidence that complainant requested for preparation of documents in his name, to which, the appellant has stated that property stands recorded in the name of his father and copy can be issued in his name and not by adding name of complainant. At that time, the complainant Premlal took the appellant outside the house and then went near a tree and started talking. At that stage, complainant asked the appellant to take money and prepare document in his favour, which was again refused. Thereafter, complainant made an attempt to give money to the appellant, which the appellant refused to accept and at that very time, trap team arrived. In his cross-examination, attempt has been made to impeach his credibility on the ground that he is known to the appellant as he is friend, but, he admits that he belongs to different caste. Though in his cross-examination, he has admitted that he does not know as to what conversation took place between the complainant and appellant after going out of the room, the part of evidence regarding insistence of the complainant to make entry of his name in the records along with the name of his father and refusal on the part of appellant to do so has not been controverted. 22. This Court in the case of State of M.P. (now C.G.), through Lokayukt Vs. 22. This Court in the case of State of M.P. (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, the accused may discharge the onus through preponderance of probability, as held by the Supreme Court in the case of Mahesh Prasad Gupta v. State of Rajasthan, AIR 1974 SC 773 and Trilok Chand Jain v. State of Delhi, 1979 SC 666. However, the accused may discharge the onus through preponderance of probability, as held by the Supreme Court in the case of Mahesh Prasad Gupta v. State of Rajasthan, AIR 1974 SC 773 and Trilok Chand Jain v. 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 reasonable doubt. But all that is required to show is to establish preponderance of probability in his favour; (f) 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 of 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 of 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." 23. 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. 24. Applying the aforesaid principles, the defence of the appellant, tested on the touchstone of preponderance of probabilities, appears to be plausible and probable and causes further dent to the story of the prosecution. 25. Much stress has been laid on the aspect regarding positive test of phynolpthelein. In that regard, it is suffice to say that in the light of the evidence of defence witness that an attempt was made by the complainant to thrust the bribe money in the hands of the appellant and the appellant refused to accept the same, only on the basis of positive report of FSL, in the absence of proof of demand and acceptance and further recovery of the tainted currency notes from the road and not from the possession of the appellant, it would be unsafe to convict the appellant. 26. In the result, the prosecution has failed to prove its case beyond reasonable doubt. 26. In the result, the prosecution has failed to prove its case beyond reasonable doubt. Moreover, this Court has also found that serious prejudice has been caused to the appellant on account of framing of charges under the provision of the Act of 1988, whereas, at the time of commission of offence, the provision of the Act of 1947 were applicable and the Act of 1988 had not even come into force. 27. In the final analysis, the impugned judgment of conviction and order of sentence passed by the Court below is unsustainable in law. The same is therefore set aside. 28. The appeal is accordingly allowed. 29. During the pendency of the appeal, appellant-B.L. Darshan died and the appeal has been prosecuted by his legal representatives, who were permitted to prosecute the appeal. Therefore, no further orders are required to be passed in the matter. Appeal Allowed.