Judgment This criminal appeal, under Section 374 of Criminal Procedure Code (in short Cr.P.C.), has been filed against the judgment and order dated 17.10.2001, passed by Smt. Indira Ashish, Special Judge, C.B.I./Prevention of Corruption, Uttaranchal, Dehradun, in C.B.I. Case No. 15 of 1996, C.B.I. Vs. Jaipal Singh, convicting the accused/appellant under Section 7 of Prevention of Corruption Act and sentencing him to undergo two years R.I. and to a pay a fine of Rs. 5,000/- and in default of payment of fine to further undergo two months’ R.I. and further convicting the appellant under Section 13(1 )( d) read with Section 13(2) of Prevention of corruption Act and sentencing him to undergo four years R.I. and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo R.I. for three months. However, it was directed that both the sentences shall run concurrently. 2. Brief facts of the case are that on 4.6.1996 Inspector C.B.I. Sri O.P. Parera was camping at Meerut and was present in S.I.C.-4, C.B.I. Camp Office, at P.W.D. Inspection House, Meerut. At about 9.00 a.m. Complainant Anil Singhal, Pharmacist, Central Government Health Service Scheme, (C.G.H.S.C.), Dispensary, Lekha Nagar, Meerut Cantt. Handed over written complaint Ext. Ka.2 to Sri O.P. Parera, mentioning therein that the complainant Anil Singhal is posted on the post of Pharmacist at Meerut in the C.G.H.S. Department with effect from 26.3.1987. He was suspended by the department on 28.6.1989 and he was reinstated by the department on 20.9.1990. The complainant had written to the department many times for the payment of arrear of pay for the period of his suspension, but he has not yet been paid the arrear. On 3.6.1996 at about 2.00 p.m. the complainant met to accused Jaipal Singh, who was posted as Office Superintendent and requested him to expedite the payment of arrear of his pay. At this the accused asked the complainant to file new application for payment of arrear and the application was moved by the complainant on the same day, i.e. 3.6.1996. The accused demanded a sum of Rs. 2,500/- as gratification from the complainant saying that he would recommend the payment after giving suitable remark and the arrear would certainly be paid to him. The accused asked the complainant to be present in his office along with a sum of Rs. The accused demanded a sum of Rs. 2,500/- as gratification from the complainant saying that he would recommend the payment after giving suitable remark and the arrear would certainly be paid to him. The accused asked the complainant to be present in his office along with a sum of Rs. 2,500/- to be given in gratification on 4.6.1996 in between 2 and 3 p.m. and he also threatened the complainant in case he did not fulfil the demand of gratification, he would not recommend the application of complainant for payment of arrear of pay. It was also mentioned in the complaint that the complainant is a low salaried Pharmacist and he does not want to give illegal gratification to the accused. 3. On receiving the complaint, Inspector Sri O.P. Parera gave written direction Ext. Ka.2/3, to Sub-Inspector Sri R. Chahal to inquire and verify the truth of complaint and to submit his report. Soon thereafter Sub-Inspector R. Chahal along with the complainant went to the office of the accused at 9.30 a.m. and came to know that the accused is posted as Office Superintendent there and looking after the matter of payment of arrear of suspension period of complainant and his reputation was not good and the complaint was true. In this regard he sent his report Ext. Ka.2/4 to Inspector O.P. Parera and Inspector O.P. Parera was of the opinion that an offence U/S 7 of Prevention of Corruption Act is evident on the complaint. Therefore Inspector O.P. Parera proceeded further in the case himself and its entry was made in Ext. Ka.2/5. On the basis of the complaint, on 4.6.1996 at 12.15p.m. C.B.I. Inspector O.P. Parera, Sub-Inspector Rajesh Chahal, Sub-Inspector S.S. Atwal and Sub-Inspector N.R. Thakur and independent witnesses O.K. Nanda, Deputy Chief Officer, Indian Overseas Bank, Regional Office Meerut and Sri A.K. Goyal, Officer, Zonal Office, Punjab National Bank, Saket, Meerut and complainant Anil Singhal collected at S.B.I. Transit House, 483/6, Shastri Nagar Meerut in order to prepare pre-trap memo Ext. Ka.3. The purpose of the team was told to all the present members and the complaint of Anil Singhal was read over. The complaint also accepted the complaint as well as his signatures on it. Both the independent witnesses in order to verify the truth of complaint, asked some questions from the complainant. Thereafter the complainant took out five notes of Rs. The complaint also accepted the complaint as well as his signatures on it. Both the independent witnesses in order to verify the truth of complaint, asked some questions from the complainant. Thereafter the complainant took out five notes of Rs. 500/- each to be given to the accused in gratification, bearing numbers 2CG-452315, 6CF-224113, 6CC-652705, 2BP-970314 and 8BS-665644. 4. Thereafter all the formalities of trapping was demonstrated before all the members of the team and necessary instructions were given to them. It was also decided that independent witness A.K. Goyal, will accompany the complainant in the office of the accused in the capacity of relative of complainant and after handing over the gratification to the accused, they would give a particular signal to the C.B.I. team. All the persons present there washed their hands with clean water so as to ascertain that phenolphthalein powder (in short P.P. Powder) is not present on their hands: The white paper pasted with P.P. Powder was kept in envelope-D-1 and the same was sealed at the spot. Both the independent witnesses N.K. Goyal and D.K. Nanda, took search of Anil Singhal complainant and all other members of trap party also took search of each other and nothing was found with them except the identify cards. The formalities of pre-trap memo Ext. Ka.3 began at 12.15 p.m. and ended at 2.25 p.m. Both the independent witnesses and the complainant as well as the other members of pre-trap party made their signatures on each page of pre-trap memo Ext. Ka.3. Thereafter all the persons of pre-trap reached at the office of accused Jaipal Singh situated at 102, Sotiganj Meerut Cantt. Riding in Ambassadar Car Nos. U.M.T. 3265 and U.S.Y. 5542. As per the earlier instructions given to pre-trap party, complainant Anil Singhal, along with witness A.K. Goyal, reached at the office of office at 3 p.m. and along with them, another witness D.K. Nanda and all the members of C.B.I. team took their positions. When complainant along with witness A.K. Goyal, reached in the office of accused, he introduced Sri A.K. Goyal, as his relative (son of his maternal aunt), then accused Jaipal Singh told to complainant that he has given his recommendation on the application of complainant for payment of arrear of pay for the period of his suspension and the accused demanded a sum of Rs. 2,500/- as gratification from the complainant. 2,500/- as gratification from the complainant. At this the complainant as per directions took out the notes of Rs. 2,500/- applied with P.P. Powder from front pocket of his shirt and handed over to accused Jaipal Singh. The accused took these notes with his right hand and kept in the third and last drawer of the table. After completion of process of giving and taking illegal gratification, witness A.K. Goyal, gave Signal to the members of C.B.I. team at 3.15 p.m. and at once Inspector O.P. Parera and other members arrested the accused saying that he has accepted the gratification of Rs. 2,500/- from Anil Singhal and the accused was also made acquainted with all the members of trap-team. At this the accused felt depressed and kept mum. On the pointing out of witness A.K. Goyal, another witness D.K. Nanda took out the notes from the drawer of table of accused and these notes were compared with the notes noted in the pre-trap memo and they were tallying with each other. Further case of C.B.1. is that Sub-Inspector Rajesh Chahal and Sub-Inspector S.S. Atwal were catching hold of the right and left wrists of the accused and Sub-Inspector N.R. Thakur prepared the solution of Sodium Carbonate in a clean water tumbler, which was colourless. Then when the right fingers of accused were dipped in this solution, it turned into pink colour. This solution was kept in a clean and dry phial R-1 , and it was tied with a cloth. All the witnesses signed it and it was sealed. Again solution of sodium carbonate was prepared in a clean water tumbler and after dipping the left fingers of the accused in it, it did not change its colour and this solution was thrown away. Again another solution of sodium carbonate was prepared in a clean water glass and right fingers of complainant Anil Singhal were dipped in it and colour of this solution turned into pink. This solution was kept in a clean phial R-2, it was sealed and all the witnesses made their signatures on it. The notes taken in gratification by the accused were kept in a separate envelope R-3. They were sealed and all the witnesses made their signatures on it. Thereafter personal search of the accused was made and on search Rs. This solution was kept in a clean phial R-2, it was sealed and all the witnesses made their signatures on it. The notes taken in gratification by the accused were kept in a separate envelope R-3. They were sealed and all the witnesses made their signatures on it. Thereafter personal search of the accused was made and on search Rs. 404/- from right pocket of his pant and a wrist watch were found with him and these articles were returned to the accused. The accused was got arrested at 3.20 p.m. after telling him the cause of his arrest. Samples of seal were prepared and recovery memo Ext. Ka.4 was also prepared at the spot and this proceeding began at 3.40 p.m. and ended at 6.35 p.m. All the members of trap party made their signatures on recovery memo Ext. Ka.4. A copy of recovery memo was given to the accused after obtaining his signature of the accused Ext. Ka.4/1. Thereafter search of the office of accused was made and File No. S- 3/89/CGHS/Meerut/E.S.T., which was kept on the table of the accused was found and search list Ext. Ka.5 was prepared, its copy was also given to the accused and his signatures Ext. Ka.5/1 were obtained. Thereafter seizure memo Ext. Ka.6, site-plan of the spot Ext. Ka.7, and arrest memo Ext. Ka.8 were prepared. Signatures of accused Ex. Ka.8/1 were obtained on the arrest memo. Thereafter search of the residence No. 226/B 35 Indrapuram, Sabun Godam, Meerut, was made on 4.6.1996 and inventory Ext. Ka.9 was prepared, signature of accused was obtained and its copy was handed over to the accused and in token his signatures Ext. Ka.9/1 were obtained. Then the sealed envelopes D-1 to D-4 and sealed phials R-1 and R-2 were sent to Director, C.F.S.L. for examination through letter Ext. Ka.11. After receipt of examination report, and according sanction by Additional Director, Central Government Health Scheme, and after completing the investigation Inspector C.B.I. Sri Ram Lal Arya, submitted charge sheet against the accused. 5. On receipt of charge sheet in court charges U/Ss 7 and 13(1)(d) read with Section 13(2) Prevention of Corruption Act 1988 were framed against the accused. The accused denied the charges and claimed to be tried. 6. 5. On receipt of charge sheet in court charges U/Ss 7 and 13(1)(d) read with Section 13(2) Prevention of Corruption Act 1988 were framed against the accused. The accused denied the charges and claimed to be tried. 6. The prosecution in support of its case examined P.W.1, B.L. Kanchan, P.W.2, Arun Kumar Goyal, P.W.3, K.S. Chabra, P.W.4, Devendra Kumar Nanda, P.W.5, Smt. Madhu Bhalla, P.W.6, Anil Singhal, P.W.7, O.P. Parera and P.W.8, P.K. Chaudhary. 7. The accused in his statement U/S 313 Cr.P.C. admitted this fact that on 3rd and 4th June, 1996 he was posted as Office Superintendent, in the office of Additional Director, Central Government Health Service Scheme 102, Sotiganj, Meerut Cantt. Meerut. But he denied all the other allegations. He showed his inability in respect of the recovery of Rs. 2,500/ - by the C.B.I. from the third and last drawer of his table. He also alleged that the recommendation note Ext. Ka.17 was made on the application of Anil Singhal Ext. Ka.16, on the dictation of Addl. Director. He further alleged that this file was recovered from the room of Additional Director and not from his office. The accused also alleged that the complainant Anil Singhal, came to him and putting his hand on his hand, carried him in the room of Additional Director and when the accused returned from there, he was caught and for this reason the solution turned into rosy colour. He also told that Anil Singhal had good relations with Additional Director Sri B.L. Kanchan. He further alleged that he had made a complaint of Sri Kanchan on the letter-pad of Scheduled Tribe Union in the matter of making illegal selection, in which Anil Singhal’s brother-in-law Naresh Kumar Agarwal was also selected. On this complaint Sri Kanchan was transferred and his promotion was also stopped and the persons selected were also removed from service. When again selection was made son of Anil Singhal, was posted on the post of Chaukidar. Dr. Kanchan had come thereafter after becoming Additional Director and on this ill-will he was got arrested in the trap case at the instance of the complainant and Dr. Kanchan. When again selection was made son of Anil Singhal, was posted on the post of Chaukidar. Dr. Kanchan had come thereafter after becoming Additional Director and on this ill-will he was got arrested in the trap case at the instance of the complainant and Dr. Kanchan. He also alleged that he received so many complaints against Anil Singhal and Anil Singhal always pressurized him not to take action on these complaints and when he did not pay heed to his request, the complainant threatened him to harm him and he was falsely implicated in this case. 8. The accused in his defence also examined Dr. K.D. Saini, as D.W.1. 9. The learned trial Judge after hearing counsel for the parties and examining all the evidence and other material available on record, found the accused guilty of offences charged against him and accordingly convicted him under Section 7 of Prevention of Corruption Act and sentenced him to undergo two years R.I. and to a pay a fine of Rs.5,000/- and in default of payment of fine to further undergo two months’ R.I. and further convicted the accused/ appellant under Section 13(1 )(d) read with Section 13(2) of Prevention of corruption Act and sentenced him to undergo four years R.I. and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo R.I. for three months. However, it was directed that both the sentences shall run concurrently. 10. I have heard learned counsel for the parties and perused the record. 11. Learned counsel appearing on behalf of accused/appellant has submitted that in the statement U/S 313 Cr.P.C. no question was put to the accused regarding sanction Ext. Ka.1, search list, Ext. Ka.5, inventory Ext. Ka.11, and charge sheet Ext. Ka21, submitted against the accused and these documents cannot be taken into consideration against the accused to convict him. He has contended that by not putting question to accused U/S 313 Cr.P.C. prejudice has been caused to him as he could have denied that allegation to be false or could have taken other defence. In support of his contention learned counsel for the appellant has relied upon the cases of Surendra Singh vs. State of U.P., rendered in Criminal Appeal No. 2518 of 2008 on 7.11.2009, and Sharad Birdhichand Sarda vs. State of Maharashtra, reported in S.C. Cr.R. - 1985 page 28. 12. In support of his contention learned counsel for the appellant has relied upon the cases of Surendra Singh vs. State of U.P., rendered in Criminal Appeal No. 2518 of 2008 on 7.11.2009, and Sharad Birdhichand Sarda vs. State of Maharashtra, reported in S.C. Cr.R. - 1985 page 28. 12. Learned counsel appearing on behalf of C.B.I. has refuted the above submission and contended that although specific reference of exhibited documents was not made in the question put to accused U/S 313 Cr.P.C. but the substance of these documents was put to the accused and no prejudiced is caused to the accused. 13. In the above cited case of Surendra Singh vs. State of Uttar Pradesh in the statement U/S 313 Cr.P.C., incriminating circumstance regarding motive to commit the crime was not put to the accused, hence it was observed that the same cannot be taken into consideration against the accused to convict him. It was further observed that examination of the accused is very perfunctory. Questioning an accused U/S 313 Cr.P.C. regarding all the incriminating circumstances appearing against him in the prosecution evidence is not an empty formality but has got a salutary purpose. The court has found that by not putting incriminating circumstances to the accused U/S 313 Cr.P.C. has caused prejudice to the accused and the petition of accused/appellant was allowed. 14. In the another cited case of Sharad Birdhichand Sarda VS. State of Maharashtra, as many as ten circumstances were not put to the appellant in his statement under Section 313 Cr.P.C. and it was observed by the Hon’ble Apex Court that these circumstances stand completely excluded from consideration as accused had no chance to explain them and absence of or false explanation by accused can be used as additional link if only when (a) chain of evidence has been proved (b) circumstances pointing to the guilty with definiteness and © it is in proximity to the time and situation, prosecution case was not proved beyond doubt and the conviction was set aside. 15. The import of above cited cases is not applicable to the facts of the case at hand. 16. In the case at hand, I have perused the statement of accused recorded under Section 313 Cr.P.C. Question No. 11 has been put to the accused relating sanction and it was asked that Dr. 15. The import of above cited cases is not applicable to the facts of the case at hand. 16. In the case at hand, I have perused the statement of accused recorded under Section 313 Cr.P.C. Question No. 11 has been put to the accused relating sanction and it was asked that Dr. B.L. Kanchan (P.W.1) Additional Director, C.G.H.S. Meerut was competent authority to dismiss your service and the sanction Ext. Ka.1 was accorded after applying the mind. In answer to this question the accused has replied that Anil Singhal had cordial relation with Sri Kanchan. The accused had sent complaint against Sri Kanchan on the letter pad of Scheduled Caste and Scheduled Tribe Union in the capacity of its founder in the matter of illegal selection in which Sri Naresh Kumar Agarwal, brother-in-law of Anil Singhal, was also selected and on this complaint Sri Kanchan was transferred and his promotion was also stopped. However, the accused did not say anything about the validity of sanction order. Thus it is quite clear that specific question about Ext. Ka.1 was put to the accused and no prejudice is caused to him. 17. As regards Ext. Ka.5, search list and inventory Ext. Ka.11, although no specific reference was made in the questions prepared against the accused U/S 313 Cr.P.C. but question No.5 was put to the accused in which it was asked that on 4-6-1996 Anil Singhal (P’W.6) has handed over complaint Ext. Ka.2 against you at 9.00 am to O.P. Parera Inspector C.B.I. Dehradun at CBI Camp Meerut and on the basis of this complaint Sri O.P. Parera lodged F.I.R. No. 9(A)/96/CBI DAD and completed trap proceeding and then after trap, completing all formalities from the office of S.P. CBI Dehradun, at 12.30 P.M. on 5.6.96 lodged F.I.R. against you Ext. Ka.19. In reply to this question the accused gave answer that false case was lodged. In the above question No.5, the accused was asked what he has to say about the formalities and trap proceeding. Further these documents Ext. Ka.5 and Ka.11 shows that copies of these documents were given to the accused and his signatures were also obtained on these document. 18. Likewise after completing the investigation in the matter the Investigating Officer submitted charge sheet Ext. Ka.21 against the accused. Further these documents Ext. Ka.5 and Ka.11 shows that copies of these documents were given to the accused and his signatures were also obtained on these document. 18. Likewise after completing the investigation in the matter the Investigating Officer submitted charge sheet Ext. Ka.21 against the accused. Although no specific question was put that what do you say about the charge sheet submitted against you, but question No.12 was put to accused that as to why the case started against you and by putting this question to accused that accused had full opportunity to say the circumstances under which case had started against him and submission of charge sheet against the accused is also covered by putting this question to the accused. Therefore, no prejudice is caused to the accused if specific reference of search list Ext. Ka.5, inventory Ext. Ka.11 as well as charge sheet, Ext. Ka.21, is not made in the question. 19. Next submission of counsel for accused/appellant was that the sanction to prosecute the accused is not a valid sanction in the instant case, as the sanctioning authority was working in the officiating capacity as Additional Director in C.G.H.S. Meerut. In support of his contention he has cited the case of Parsu Ram Singh Vs. State of Uttar Pradesh and others, Allahabd High Court passed in Civil Misc. Writ No. 3086 of 1975 decided on 18th January, 1977. 20. I have gone through the above cited ruling, wherein it has been observed by Allahabad High Court that mere delegation of power to another officer does not confer equality of rank. Article 311 of the Constitution permits infliction of the punishment of dismissal only by an officer of equal or superior rank. In that case S.P. was the appointing and promoting officer, and the petitioner could have been dismissed only by the S.P. of the District and not by any other S.P. and the order of dismissal was passed by S.P. City and it was found that the order was passed in contravention of Article 311 of the Constitution and as such cannot be upheld. 21. The above ruling is of no help to the accused. Perusal of statement of P.W.1, Dr. B.L. Kanchan, who has accorded sanction in the case, shows that he was working in the capacity of Additional Director, Central Health Service Scheme, Meerut on the date of granting permission. 21. The above ruling is of no help to the accused. Perusal of statement of P.W.1, Dr. B.L. Kanchan, who has accorded sanction in the case, shows that he was working in the capacity of Additional Director, Central Health Service Scheme, Meerut on the date of granting permission. He has deposed that he is working on the post of Additional Director since October 1995 and the sanction has been granted 15.7.1996. This witness has also stated that prior to October 1995 he was working in the capacity of officiating Additional Director for two years. But at the time of according sanction he was not working in the officiating capacity. He has also stated that he is competent authority to appoint and remove the officers upto the rank of Office Superintendent. It is admitted fact that the accused at the time of incident was posted as Office Superintendent. This witness also deposed that he had prepared the sanction on his dictation and before granting sanction he had examined the documents produced by C.B.1. before him. He has proved the sanction order Ext. Ka.1. Therefore, it is proved that the sanction order is a valid order and it has been granted by a competent authority after applying his mind. 22. Learned defence counsel next submitted that the accused/appellant has been falsely implicated in the case at the instance of Sri B.L. Kanchan, Additional Director, as he was keeping strong grudge against the accused as on the earlier occasion he was transferred on the complaint of the accused. He also contended that the witnesses are made up witnesses and there are contradictions in their testimony and their testimony cannot be believed on the point of demand and acceptance of gratification. In support of his contention learned counsel has cited the following case laws:- (1) Har Bharosey Lal versus State of Uttar Pradesh (HC) ACC 1988 (25) page 187. (2) State of Andhra Pradesh vs. T. Venkatshwara Rao reported in [2004(48) ACC 662J (Supreme COURT) 662. (3) State of Uttar Pradesh Vs. Jagdish Singh Malhotra, reported in 2003 Supreme Court Cases (Cri) 1008. (4) M. Abbas vs. State of Kerala, reported in 2002 Supreme Court Cases (Cri) 1270. (5) C.M. Girish Babu vs. CBI, Cochin, High Court of Kerala, reported in (2009) 2 Supreme Court Cases (Cri.) 1. (3) State of Uttar Pradesh Vs. Jagdish Singh Malhotra, reported in 2003 Supreme Court Cases (Cri) 1008. (4) M. Abbas vs. State of Kerala, reported in 2002 Supreme Court Cases (Cri) 1270. (5) C.M. Girish Babu vs. CBI, Cochin, High Court of Kerala, reported in (2009) 2 Supreme Court Cases (Cri.) 1. (6) State of Kerala and another vs C.P. Rao, reported in (2011) 2 Supreme Court Cases (Cri.) 1010. (7) Panalal Damodar Rathi VS. State of Maharashtra, reported in 1980 Supreme Court Cases (Cri.) 121. (8) M.K. Harshan VS. State of Kerala, reported in 1997 Supreme Court Cases (Cri.) 283. (9) State of T.N. VS. Krishnan and another, reported in 2003 Supreme Court Cases (Cri.) 1231. (10) Ganapathi Sanya Naik Vs. State of Karnataka, reported in (2007) 3 Supreme Court Cases (Cri.) 541. 23. I have gone through the above cited rulings. 24. In the case of Har Bharosey Lal versus State of Uttar Pradesh (HC) ACC 1988 (25) page 187, there was no eye witness of bribe taking, out of two independent search witnesses only one was examined and the sanction to prosecute the accused also not by competent authority. 25. In the case of State of Andhra Pradesh Vs. T. Venkatshwara Rao reported in [2004 (48) ACC 662 J (Supreme COURT) 662, it has been held by Apex Court that there was no occasion to demand of bribe by the accused and further the prosecution case was found highly improbable as no reasonable man placed in position of accused respondent would agree to accept bribe in present of the witness who was admittedly on inimical terms with the accused and the money was recovered from under the mattress of the accused and the explanation from the side of accused was that the money had been kept under the mattress in his absence and when he entered the house the witness had shaken phenolphthalein treated hands with him. 26. In the case of State of Uttar Pradesh Vs. Jagdish Singh Malhotra, reported in 2003 Supreme Court Cases (Cri) 1008, the story of taking bribe was doubtful, as the accused had denied the handling or receiving of tainted currency notes and stated that he shook his hand with the officers and phenolphthalein crystals could have come on his hands during that time. Jagdish Singh Malhotra, reported in 2003 Supreme Court Cases (Cri) 1008, the story of taking bribe was doubtful, as the accused had denied the handling or receiving of tainted currency notes and stated that he shook his hand with the officers and phenolphthalein crystals could have come on his hands during that time. It was further held that the witnesses examined at the trial were interested witnesses which cast doubt on genuineness of the prosecution case, probabilises the defendant version and creates an impression that the Union and its members could have falsely implicated the respondent. 27. In the case of M. Abbas Vs. State of Kerala, reported in 2002 Supreme Court Cases (Cri) 1270, it has been observed that accused had admitted seizure and recovery of currency notes from his possession in the trap but he explained that the amount had not been received by him as bribe, but for the purpose of giving the same to another contractor who had completed the work of removing bump from the road which otherwise was required to be done by P.W.2 and P.W.2 lateron was declared hostile confirming the explanation given by the accused/appellant. It has also been held that presumption under Section 4(1) of the Act is a rebuttable presumption which is attracted by offences U/S 161 I.P.C. or U/S 5(1)(a) or (b) and not attracted by offences U/S 5(1 )(d) rlw S.5(2). Defence case is required to be proved only by preponderance of probability. The explanation given by accused was found to be quite plausible and he was acquitted. 28. In the case of C.M. Girish Babu vs. CB/, Cochin, High Court of Kerala, reported in (2009) 2 Supreme Court Cases (Cri.) 1, it has been held that burden of proof on accused under S. 20 is not the same as the burden placed on prosecution to prove case beyond reasonable doubt. Accused can rebut charge either through cross-examination of prosecution witnesses or by adducing reliable evidence. 29. In the case of State of Kerala and another vs C.P. Rao, reported in (2011) 2 Supreme Court Cases (Cri.) 1010, it has been observed by Hon’ble Apex Court that when there is no corroboration of testimony of complainant regarding demand of bribe by accused, it has to be accepted that complainant’s version is not corroborated and, therefore, evidence of complainant cannot be relied on. 30. 30. In the case of Panalal Damodar Rathi vs. State of Maharashtra, reported in 1980 Supreme Court Cases (Cri.) 121, it has been held that on facts, there was no corroboration of the testimony of the complainant regarding the demand for money by the appellant. On this crucial aspect therefore, it has to be found that the version of complainant is not corroborated and, therefore, the evidence of the complainant on this aspect cannot be relied on. 31. In the above cited case of M.K. Harshan vs. State of Kerala, reported in 1997 Supreme Court Cases (Cri.) 283, accused was held in a trap and tained money was recovered from his drawer without his knowledge and evidence of witnesses was contradictory on this point, therefore the appellant was held to be entitled to benefit of doubt. 32. Further, in the case of State of T.N. vs. Krishnan and another, reported in 2003 Supreme Court Cases (Cri.) 1231, the tainted money was recovered from under a pair of trousers lying on a cot. The accused version who was in bathroom, and when he came out he found witnesses already sitting on the cot and the raid party suddenly appeared and picked up the amount from under the pair of trousers, there was no dispute, regarding above facts, hence it was held that accused was rightly acquitted. 33. In the last cited case of Ganapathi Sanya Naik Vs. State of Kamataka, reported in (2007) 3 Supreme Court Cases (Cri.) 541, accused who was village Accountant demanded bribe money for effecting mutation entries in revenue records. Trap was laid. Currency notes smeared with phenolphthalein powder were put on office table of accused and appellant then placed some files on the currency notes. Trial court held that evidence of pancha witness and complainant with regard to recovery of cash was not believable and that defence version that money had been put under the files on the table surreptitiously without knowledge of appellant appeared more plausible and worthy of acceptance and the accused/appellant was acquitted. Thus, it is quite obvious that the facts of above cites cases are totally different than the facts of case at hand and these rulings are of no help to the accused/appellant herein. Thus, it is quite obvious that the facts of above cites cases are totally different than the facts of case at hand and these rulings are of no help to the accused/appellant herein. As discussed in the earlier part of this judgment, the trap was done after completing all formalities in the presence of two independent witnesses, Pratap Singh Rawat and V.S. Rawat. The testimony of the witnesses is consistent with each other. If there are some minor contradictions in the statements of witnesses it is settled law that minor contradictions are bound to occur, otherwise if the trap is tainted one, then there may not be occasion for minor contradictions to occur, as the witnesses are tutored in that situation. 34. In context of above submission of defence counsel, as well as the case laws cited above, I have perused the statements of witnesses. 35. P.W.1, Dr. B.L. Kanchan, is the Additional Director against whom the accused had stated that he has enmity with him. This witness has accorded sanction against the accused. In his cross-examination this witness has deposed that he was Additional Director in the officiating capacity for two years prior to October 1995 and during that period some Scheduled Caste employees had made complaint against him and on that complaint he was transferred. This witness has shown his ignorance whether name of Anil Singhal was also included in the complaint along him or not? He further stated that accused Jai Pal belongs to Scheduled Caste. He has no knowledge whether Jail Pal was among the complainants or not? He also deposed that Anil Singhal has not made any complaint about demand of bribe by accused. He has denied this suggestion that he had accorded sanction to prosecute the accused due to ill-feeling. It is pertinent to mention here that there are some complaints against Sri Anil Singhal sent to Additional Director, Central Govemment Health Scheme, Meerut as well as to S.S.P. Meerut, on the letter pad of Scheduled Castes Uplift Union and also to Health Minister New Delhi and these complaints shows that they were sent by President Shailendra Mohan Dixit and Shiv Charan Vice-President of the Union. There are no signatures of accused Jai Pal Singh on these documents and it cannot be presumed that accused had also sent complainants against Anil Singhal or against Officiating Additional Director Sri B.L. Kanchan. There are no signatures of accused Jai Pal Singh on these documents and it cannot be presumed that accused had also sent complainants against Anil Singhal or against Officiating Additional Director Sri B.L. Kanchan. Further no effort was made to prove these documents. The defence has also examined D.W.1, Dr. K.D. Saini, in order to prove the animosity of complainant Anil Singhal against the accused, but from his statement it is not proved that the relations between the complainant and accused were worse and the complaints sent against Sri Singhal were directly made by the accused. Rather it is proved that the accused had not signed any of the complaint against Sri Singhal and the complaints and report against the complainant were made by President and Vice-President. Thus, it has not been proved from the side of accused that either Sri B.L. Kanchan or complainant Anil Singhal had strong motive and animosity against the accused and due to that he was falsely implicated at their instance. 36. P.W.2, Arun Kumar Goyal, is the independent witness of the incident. He has deposed that on 4-6-1996 he was posted as Officer in Regional Office, Punjab National Bank Meerut. At about 11.30 A.M. Dy. General Manager, Sri U.S. Bhargava instructed him to reach at S.B.I. Guest House Meerut to help the C.B.I. Team in the secret mission and on this instruction he reached at S.B. I. Guest House 483/6 Shastri Nagar Meerut at 12.00 noon. There he met to Inspector O.P. Parera, Sub-Inspector Rajesh Chahal, S.I. G.S. Atwal, S.I. N.R. Thakur, DK Nanda, Deputy Chief Officer Indian Overseas Bank and Anil Singhal complainant. Inspector O.P. Parera introduced him with other team members and told the reason of collecting there. He further stated that complaint, Ext. Ka.2 was read over to him by Sri O.P. Parera and Anil Singhal had told that he has given it to Sri O.P. Parera. This witness also made his signature on the margin of the complaint and witness D.K. Nanda had signed the complaint in his presence. Thereafter C.B.I. Team took five notes of Rs.500/- each from Anil Singhal and demonstrated pre-trap proceeding. This witness has deposed about the demonstration and proved the documents. He also deposed about the trap incident. This witness also made his signature on the margin of the complaint and witness D.K. Nanda had signed the complaint in his presence. Thereafter C.B.I. Team took five notes of Rs.500/- each from Anil Singhal and demonstrated pre-trap proceeding. This witness has deposed about the demonstration and proved the documents. He also deposed about the trap incident. He stated that proceeding of demonstration had started at 12.15 p.m. and it was ended at 2.25 p.m. Thereafter all the team members went to the office of Jai Pal Sigh in two Ambassador cars and reached at 2.50 p.m. This witness also followed the complainant in the capacity as shadow witness. He further deposed that he and the complainant reached to the office of accused at 3.00 p.m. Anil Singhal paid Namasty to the accused and he asked them to sit on the front chairs. Anil Singhal had introduced this witness as his relative. Thereafter accused told the complainant that he has made recommendation on his application of arrear and asked him to give Rs. 2500/- as was settled yesterday. Then Sri Singhal took out the notes from his right hand from left pocket of his shirt and handed over the same to the accused. Accused Jai Pal Singh accepted these notes from his right hand and kept them in the lower last drawer of his table which was fixed on the right hand. Thereafter this witness came out from the chamber of accused and gave signal to C.B.1. team as per directions. Thereafter Sri O.P. Parera came to the chamber of accused along with other team members and asked the accused that he has accepted gratification from Anil Singhal. At this accused kept mum. Then Sri Rajesh Chahal and Sri S.S. Atwal caught hold of the writs of accused. Inspector O.P. Parera asked the place where the accused had kept the notes and this witness signaled towards last drawer and Sri Parera asked witness D.K. Nanda to recover the notes and Sri Nanda recovered the notes of Rs. 2500/- from the last drawer of the table of the accused and after comparison of these notes from the numbers mentioned pre-trap memo were tallied with each other. The accused was taken into custody. Then Sri M.R. Thakur prepared the solution of sodium carbonate in a glass. The solution was colourless. 2500/- from the last drawer of the table of the accused and after comparison of these notes from the numbers mentioned pre-trap memo were tallied with each other. The accused was taken into custody. Then Sri M.R. Thakur prepared the solution of sodium carbonate in a glass. The solution was colourless. Then right ringers of Jai Pal Singh were dipped in that solution and color of the solution turned into rosy. This witness also told about the later proceedings of preparing search list, recovery memo etc and has proved these documents also. In the cross-examination this witness has deposed that during the period of trap and arresting of accused no official had come in the office of accused. This witness has been cross-examined at a great length on the point of recovery of notes, recovery of other articles as well as about the authenticity of trap-proceedings, but nothing incriminating has come out from it which may render his testimony as unreliable and untrustworthy. The only suggestion put to this witness in his cross-examination to depose falsely against the accused, that due to acquaintances of this witness with the complainant, he was deposing falsely, and this witness has categorically denied that suggestion. The defence has also not given suggestion to this witness that he is pocket witness of C.B.I. In the above facts and circumstances it appears that this witness is an independent witness and his testimony is fully credible and trustworthy. 37. P.W.3, K.S. Chabara had examined the six sealed parcels sent to him by S.P. C.B.1. Dehradun. According to him he had found phenolphthalein powder on Ext. D-1, D-2, D-3, R-1 and R-2. He has proved his report Ext. Ka.10. 38. P.W.4, D.K. Nanda is another independent witness. This witness has also reached at transit guest house on the instruction of Regional Manager of his Bank. He was posted as Deputy Chief Officer in Regional Office of Indian Overseas Bank Meerut. This witness has also deposed about the whole story of demonstration and proved all the documents. He has fully supported the statement of P.W.2, A. K. Goyal. His deposition on the point of recovery of notes from the possession of accused is consistent. He has deposed that he had taken out the Rs. This witness has also deposed about the whole story of demonstration and proved all the documents. He has fully supported the statement of P.W.2, A. K. Goyal. His deposition on the point of recovery of notes from the possession of accused is consistent. He has deposed that he had taken out the Rs. 500/- notes of 2500/- from the last drawer of the table of accused which was fixed on right side and after their comparison with the numbers mentioned in pre-trap memo were tallied with each other. This witness also deposed about the other proceedings of recovery, sealing the phials and the notes and has proved these documents. This witness was also cross-examined at a great length but nothing has come out from it which may be of any help to the accused. 39. P.W.5, Smt. Madhu Bhalla, was posted as C.D.C. in the office of accused. She has deposed that in the year 1996 Sri Jai Pal Singh accused was Office Superintendent. Sri Anil Singhal Pharmacist complainant, Sri C.P. Singh and Prem Sagar Sharma were suspended on 28-6-1989 and were reinstated on 20-9-90. She has deposed that paper No. Ext. Ka.12 is the memorandum of her office by which all the three suspended officials were reinstated. On this memorandum there are signature of Sri U.C. Mahendra the then Dy. Director. She further deposed that all the three suspended persons had given application for payment of their arrears and on the application of Sri Anil Singhal the office had written letter to Director General C.G.H.S. New Delhi. This letter Ext.Ka.13 has been proved by this witness. She has also deposed that letter paper No. 22-ka was received from New Delhi and on that letter Dr. B.L. Kanchan had marked it to her. This witness further deposed that as per direction Ext. Ka.14 of the Head Office Sri Anil Singhal could not be paid the arrears until the proceeding against him were not dropped. She further deposed that on 3-6-1996 she was on leave. She further deposed that note sheet on paper No. 26-ka is in the hand writing of accused Jai Pal Singh. She has proved it as Ext. Ka.17. This witness had admitted this fact in her cross-examination that there was no union of Scheduled Castes in her office.” 40. It is now relevant to examine the note sheet Ext. Ka.17, prepared by the accused. She has proved it as Ext. Ka.17. This witness had admitted this fact in her cross-examination that there was no union of Scheduled Castes in her office.” 40. It is now relevant to examine the note sheet Ext. Ka.17, prepared by the accused. By perusal of this document it is quite clear that the accused had recommended for the release of arrear of pay and allowances of suspension period of suspended officers including complainant Anil Singhal. 41. P.W.6,Anil Singhal, is the complainant. He has deposed that on 27-3-1987 he was posted as Pharmacist in C.G.H.S. Meerut. On 28.6.89 he and two other Pharmacists were suspended in connection with a false case and after about 15 months they were reinstated and according to direction of Additional Director it was ordered that after decision of E.O.W. case from court arrears should be given to them. Thereafter he sent letter to Additional Director for payment of arrears but no reply was received. On 3.6.96 he met with accused Jai Pal Singh in the office and talked about the arrear. The accused asked him to give new application which was given by him the same day. The accused had demanded a sum of Rs. 2,500/- for making favourable endorsement on the application of arrear and also told that if he would not pay the bribe then he would not be given proper endorsement. The accused had asked him to come to his office on 4.6.96 at 2.00 p.m. to give bribe. This witness further deposed that he do not wanted to pay bribe hence he met to his Advocate Sri R.S. Rana who was doing pairwee in D.O.W. case and he had told this witness that if he does not to give bribe then he should make complaint to C.B.I. team who is camping at P.W.D. Inspection House Meerut in connection with Gopal Maheshwari case. On 4.6.96 he went to P.WD. Inspection House Meerut at 9.00 a.m. and met with Inspector O.P. Parera and handed over him his written complaint. This witness has proved the application Ext. Ka.16 which was given by him to Additional Director for release of arrears. This witness also proved his complalnt given to C.B.I. Inspector O.P. Parera as Ext. Ka.2. This witness has fully supported the testimony of P.W.2, A.K. Goyal and P.W.4, D.K. Nanda, on the point of demonstration as well as trap proceeding. This witness has proved the application Ext. Ka.16 which was given by him to Additional Director for release of arrears. This witness also proved his complalnt given to C.B.I. Inspector O.P. Parera as Ext. Ka.2. This witness has fully supported the testimony of P.W.2, A.K. Goyal and P.W.4, D.K. Nanda, on the point of demonstration as well as trap proceeding. This witness has proved all the documents prepared during demonstration as well as trap proceedings. 42. P.W.7, O.P. Parera, is the C.B.I. Inspector who had conducted raid. He has deposed about the pre-trap and trap proceedings. This witness has also proved the documents prepared during the whole trap proceeding. The statement of this witness with regard to recovery of notes from the accused is consistent to the statements of other independent witnesses. 43. P.W.8, Sri P.K. Chaudhary is Inspector of C.B.I. The investigation of the case was transferred to him. He has stated about the investigation done by him and proved the documents prepared during investigation. From him the investigation of the case was transferred to R.L. Arya who had submitted charge sheet against the accused. This witness has deposed that he is acquainted with the handwriting of Sri R.L. Arya and he has proved the charge sheet Ext. Ka.21. 44. Thus, from the statements of witnesses above, it is obvious that there are no major contradictions in the testimony of the witnesses, otherwise also minor contradictions are bound to occur in the testimony and no contradictions could court in the case where the witnesses are tutored witnesses. However, the minor contradictions are of not such a nature that may affect the case adversely. Thus, it is amply proved that the accused had demanded a sum of Rs. 2,500/- as bribe from the complainant Sri Anil Singhal for noting favourable remark on the application of Sri Singhal for payment of arrear of pay and allowance and has accepted the bribe. 45. As discussed above, although the accused had tried to make out a case that Additional Director Sri B.L. Kanchan had a grudge against him as he had sent complaint against him in connection with illegal selection of employees, but he has not been able to establish strong motive for his falsely implication. 46. 45. As discussed above, although the accused had tried to make out a case that Additional Director Sri B.L. Kanchan had a grudge against him as he had sent complaint against him in connection with illegal selection of employees, but he has not been able to establish strong motive for his falsely implication. 46. Learned counsel for the accused/appellant also submitted that there was no occasion with the accused to demand bribe from the complainant as although the complainant was reinstated in service but there was specific direction of the Head Office Ext. Ka.14 that the payment of arrears should not be made until the court proceedings are dropped against the complainant and other suspended pharmacists. . 47. Ext. Kha.1 is the letter of Dr. K.D. Saini, Deputy Director written to Director General of Health Services New Delhi. This letter was written in connection of payment of arrear of suspension period in respect of Anil Singhal Pharmacist and request was made to examine the case and issue necessary direction. From the above letter it is quite clear that application of complainant for payment of arrears was moved and the matter was under consideration. Thereafter the complainant moved another application dated 3.6.96 on the instruction of the accused which paper Ext. Ka.16. On this application endorsement was made to Smt. Madhu on the same day. Smt. Madhu was on leave on that day hence the accused prepared note sheet Ext. Ka. 17, in which recommendation was made that the arrear of pay and allowance may be released of suspension period after obtaining the undertaking from the Pharmacists if any decision goes against them the amount will be refunded or will be deducted from their salaries. Thus in the above premises it has no relevance that the arrears of pay and allowance could not be paid till the court proceedings are dropped because recommendation for conditional payment was made by the accused in the note sheet Ext. Ka.17. 48. Learned counsel for the accused/appellant also gave much stress on this point that the complainant and the shadow witness were sitting on the chairs in front of the table of accused at the time of demand and acceptance of gratification, then how these witnesses were apprised that there are three drawers in the table and the accused had kept the notes in the third and last drawer of the table. 49. 49. In this regard P.W.2, A.K Goyal has deposed that the accused had kept the notes in the last drawer of his table which was fixed on the right hand side. This witness has not said in the third drawer but he simply said that in the last drawer. P.W.6, Anil Singhal also stated in his statement that the accused had kept the notes in the last drawer of the table. He has not told that in the third drawer but told in the lower last drawer of the table. However, in the statement of P.W.4, D.K. Nanda it has come that Sri Goyal had signaled that Jai Pal Singh had kept the notes of Rs. 2500/- taken in bribe, in the third last drawer of the table. From the above statement it cannot be inferred that the statements of these witnesses is contradictory and they could not have a chance to see the drawer. Both the witnesses in whose presence the bribe was taken could very well make an idea by the action of accused that the notes were kept in lowest drawer and the witness P.K. Goyal had only signaled that the notes were kept in the last drawer and the other persons including D.K. Nanda would have been an idea that the last drawer is the third drawer as they had appeared in the room from behind and they had occasion as to how many drawer are there in the table. Therefore, this factum is not harmful to the prosecution case. 50. Learned counsel for the C.B.1. has submitted that in the instant case it has been proved by cogent and reliable evidence that there was voluntary and conscious acceptance of money by accused/appellant from complainant Anil Singhal, and there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the cases and circumstances obtained in the particular case and that burden was not discharged by the appellant in this case. In support of his contention learned counsel has cited before me the case of B. Noha versus state of Kerala and another, reported in (2006) 12 Supreme Court Cases 277. 51. I have gone through the above cited case. In para 10 and 11 it has been observed as under:- 10. In support of his contention learned counsel has cited before me the case of B. Noha versus state of Kerala and another, reported in (2006) 12 Supreme Court Cases 277. 51. I have gone through the above cited case. In para 10 and 11 it has been observed as under:- 10. The evidence shows that when P.W. 1 told the accused that he had brought the money as directed by the accused, the accused asked P.W. 1 to take a cut and give the same to him. When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case. It was held by this court in Madhukar Bhaskarrao Joshi v. state of Maharashtra as follows: (See p. 577, para 12)- “12. The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted ‘as motive or reward’ for doing or forbearing to do any official act. So that word ‘gratification’ need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like ‘gratification or any valuable thing’. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or ‘gratification’ must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.” 11. This decision was followed by this court in M. Narsinga Rao v. state of A.P. (2001) 1 SCC 691. There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collected from P. W 1. This decision was followed by this court in M. Narsinga Rao v. state of A.P. (2001) 1 SCC 691. There is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collected from P. W 1. It was held in the decision in state of A.P. v. Kommaraju Gopala Krishna Murthy, (2000) 9 SCC 752, that when an amount is found to have been passed to the public servant the burden is on public servant to establish that it was not by way of illegal gratification. That burden was not discharged by the accused.” 52. In the instant case, this fact has been fully established by the evidence of independent witnesses P.W.2, A.K. Goyal and P.W.4, D.K. Nandan, coupled with the evidence of complainant and other members of trap-team that the amount of Rs. 2500/- was passed to the accused and he had accepted the same then the burden was on him to establish that it was not by way of illegal gratification. But the burden was not discharged by the accused. The accused has denied the demand and acceptable of the bribe and said that he has been falsely implicated, but he has not suggested as to how the money was recovered from his possession. Thus, it is quite clear that the defence has not discharged its burden. 53. So far as the sentences awarded to the accused/appellant by the learned Special Judge, are concerned, the same should be reduced, considering the age of more than 69 years of accused/appellant, the financial status of the accused/appellant, as well as the amount taken in bribe by the accused, and in the facts and circumstances of the case. In my opinion a sentence of one year’s R.I. U/S 7 of Prevention of Corruption Act and a fine of Rs. 5,000/- and in default of payment offine to undergo R.I. for two months, and under Section 13(1 )(d) read with Section 13(2) of the Act, a sentence of two years R.I. and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo RI. for three months, shall meet the ends of justice. 54. 5,000/- and in default of payment offine to undergo R.I. for two months, and under Section 13(1 )(d) read with Section 13(2) of the Act, a sentence of two years R.I. and to pay a fine of Rs. 10,000/- and in default of payment of fine to undergo RI. for three months, shall meet the ends of justice. 54. In view of discussions made above, I do not find any illegality and infirmity in the impugned judgment and order of conviction, passed by the learned Special Judge, CBI Anti-Corruption, Dehradun. However, the sentences awarded against the accused/appellant are liable to be reduced. 55. The appeal is dismissed. However, the order of sentence passed by trial court is modified and instead the accused/appellant is sentenced to undergo one year’s R.I. U/S 7 of Prevention of Corruption Act and to pay a fine of Rs. 5,000/- and in default of payment of fine to undergo R.I. for two months and he is further sentenced to undergo RI. for two years U/S 13(1)(d) read with Section 13(2) of Prevention of Corruption Act, and to pay a fine of Rs. 10,000/- and in default of payment of fine to further undergo R.I. for three months. However, all the sentences shall run concurrently. 56. With the above modification in the sentence, the judgment and order of conviction passed by learned Special Judge, is confirmed. 57. The accused/appellant is on bail. His bail bonds are cancelled and sureties are discharged. He shall be taken into custody forthwith in order to serve out the sentences passed against him. 58. Let the record of the case be transmitted to the trial court concemed, forthwith.