JUDGMENT : This Criminal Appeal is filed by the appellant/accused against the judgment passed by the trial Court finding him guilty under Section 7 of Prevention of Corruption Act, 1988 and convicting and sentencing him to undergo Rigorous Imprisonment for one year and to pay a fine of Rs.500/-, in default of payment of fine to undergo one month Rigorous Imprisonment and also finding him guilty under Section 13(2) r/w 13(1)(d) of prevention of Corruption Act, 1988 and convicting and sentencing him to undergo Rigorous Imprisonment for one year and to pay a fine amount of Rs.500/-, in default to undergo one month Rigorous Imprisonment. The trial Court ordered the entire sentence to run concurrently and the period already undergone by the appellant/accused was directed to be set off under Section 428 Cr.P.C. The appeal has been filed challenging the order of conviction and sentence. 2. The appellant/accused in this case is one Mr. R. Gopalakrishnan, Telephone Mechanic, BSNL, Peruntholuvu Telephone Exchange, Tirupur. 3. The case of the prosecution according to the final report filed by the prosecution in brief is that one Mr. K.R. Kumar, a resident of Pillaiarkadu, Sivanmalaikoundampalayam, Pollikallipalayam Post, Tirupur, who is the subscriber of telephone No.2359474 submitted an application dated 03.07.2006 at the office of BSNL, Tirupur, for shifting of his telephone service from his old residence to his new residence falling under the same locality. On 13.07.2006, work order to effect shifting was issued by the Commercial Section of BSNL, Tirupur. Since Peruntholuvu Telephone Exchange under which the residential premises of K.R. Kumar located functions under the control of SDE (Groups) and JTO (Groups) of Mudalipalayam Exchange the request for shifting was communicated to Mudalipalayam Telephone Exchange, Tirupur. 4. The work order was communicated to the Lineman R. Gopalakrishnan the appellant/accused by the concerned JTO for execution of the work order. On 04.06.2006, when the subscriber K.R. Kumar met lineman Gopalakrishnan he had demanded illegal gratification of Rs.1,250/- from the de-facto complainant - K.R. Kumar as a motive for shifting the telephone service. On 15.09.2006, Gopalakrishnan was caught red-handed in front of K.R. Kumar's house when he demanded and accepted the illegal gratification of Rs.1,250/- from K.R. Kumar. Thus, by corrupt means, by abusing his position as a public servant, R. Gopalakrishnan obtained pecuniary advantage of Rs.1,250/- from K.R. Kumar. 5. On 15.09.2006, Gopalakrishnan was caught red-handed in front of K.R. Kumar's house when he demanded and accepted the illegal gratification of Rs.1,250/- from K.R. Kumar. Thus, by corrupt means, by abusing his position as a public servant, R. Gopalakrishnan obtained pecuniary advantage of Rs.1,250/- from K.R. Kumar. 5. On perusal of the final report, the documents and statement of witnesses relied on by the prosecution and in the light of the sanction to prosecute the appellant/accused R. Gopalakrishnan, the trial court finding sufficient grounds to prosecute the appellant/accused for the offences under Section 7 and Section 13(1)(d) of Prevention of Corruption Act, took cognizance of the case. 6. On the appearance of the appellant/accused, copies of the documents relied on by the prosecution were served on him in accordance with Section 207 Cr.P.C. and after affording opportunity to the prosecutor and the counsel for the appellant/accused, charges under Section 7 and Section 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 were framed and the appellant/accused pleaded not guilty and he was tried. 7. During the trial, the prosecution had examined 8 witnesses and marked 22 Exhibits and 6 material objects. PW1 is the Sanctioning Authority, PW2 is the de-facto complainant, PW3 is the Accompanying witness, PW4 is the Scientific Assistant, PW5 is the Trap Laying Officer, PW6 is the Junior Telegram Officer, BSNL, PW7 is the Commercial Officer, BSNL and PW8 is the Investigating Officer who conducted further investigation and filed the final report. 8. The gist of the prosecution evidence is as follows:- a. PW1, Venniah is the DGM attached to BSNL Tirupur Exchange and the competent authority has to take action against Group C employees. He has accorded sanction to prosecute the appellant/accused. The relevant service rule conferring power to take disciplinary action including major penalty was marked as Ex.P-1. The sanction order was marked as Ex.P-2. b. PW2, Mr. K.R. Kumar is the de-facto complainant and he had deposed about his application requesting shifting of his telephone service (Ex.P3), meeting of the appellant/accused as directed by the 'Customers Care Centre' and the demand of money by the appellant/accused. The sanction order was marked as Ex.P-2. b. PW2, Mr. K.R. Kumar is the de-facto complainant and he had deposed about his application requesting shifting of his telephone service (Ex.P3), meeting of the appellant/accused as directed by the 'Customers Care Centre' and the demand of money by the appellant/accused. About his written complaint (Ex.P5) to CBI on 15.09.2006, pre-trap proceedings and preparation of entrustment mahazar (Ex.P6), about demand and acceptance of money by the appellant/accused on 15.09.2006, the arrest of the appellant/accused, recovery of the money (M.O.1) series from the shirt pocket of the appellant/accused by the CBI team and the preparation of recovery mahazar (Ex.P7). c. PW3, Mr. Jayaprakash is the witness planted by the CBI for witnessing the trap proceedings, demand and receipt of the tainted money by the appellant/accused. He had corroborated the version of PW2. He had identified his signatures and the signatures of the other witness Sampathkumar on the bottles containing the hand wash solution and shirt wash solution of the appellant/accused which had been marked as M.O.2 to 4 and marked as the packet in which the shirt of the appellant/accused had been wrapped and marked as M.O.5. He had deposed about the rough sketch of the trap spot Ex.P8 and arrest memo of the appellant/accused Ex.P9. d. PW4, Tmt. Maria Selvi Rosaline is the Chemical Examiner who had examined the contents of M.O.2 to 5 and had submitted report Ex.P10. e. PW-5, Mr. Kalaimani is the Inspector of CBI, who had laid the trap. He had deposed about receiving the complaint from PW-2 and forwarding it to the Superintendent at Chennai along with his covering letter (Ex P-11) through fax. He had led the trap team and had arrested the appellant/accused immediately after the receipt of the tainted money. He conducted the phenolphthalein test on the hands and shirt of the appellant/accused and later seized the currency and the shirt of the appellant/accused. f. PW-6, Mr. Rajesh is the Junior Telecom Officer (JTO) who had spoken about the general procedure followed by the department in case of shifting. He has deposed to the effect that the appellant/accused had contrary to the procedure moved the unused poles and materials to the de-facto complainant's residence without the knowledge or intimation to the higher officer, the JTO or SDE. Rajesh is the Junior Telecom Officer (JTO) who had spoken about the general procedure followed by the department in case of shifting. He has deposed to the effect that the appellant/accused had contrary to the procedure moved the unused poles and materials to the de-facto complainant's residence without the knowledge or intimation to the higher officer, the JTO or SDE. He had identified the work order register Ex P-16 and the attendance register Ex P-17 maintained at his office. g. PW-7, Mr. Natarajan is the Commercial Officer of BSNL who has spoken about the receipt of application Ex P-3 for shifting and issuance of work order Ex P-15. h. PW.8, Mr. Raju, is the investigating officer who on receipt of the complaint of PW-2 along with the covering letter of PW-5 through fax has registered the case as per the instruction of his Superintendent. After examining the witnesses and on receipt of the chemical analyst report and sanction order, he has after completion of investigation submitted the final report to the court. 9. When the appellant/accused was questioned under section 313(1)(b) of Cr.P.C. about the incriminating evidence against him, he has admitted his presence at the trap spot on 15.09.2006 at 2.50 p.m and the arrival of the CBI team. He has also admitted the recovery of Rs.1,250/- from him. According to him, the money was given to him by PW-2, as expenses towards the charges for transporting unused poles and wages for the labourers for digging the pits and erecting the poles. No witnesses were examined or no document was filed on behalf of the appellant/accused. 10. After hearing both sides, the trial Court has held that the prosecution had proved the case beyond reasonable doubt and convicted and sentenced the appellant/accused as stated above. Aggrieved by the above said conviction and sentence, the present appeal has been filed by the appellant/accused. 11. Mr. 10. After hearing both sides, the trial Court has held that the prosecution had proved the case beyond reasonable doubt and convicted and sentenced the appellant/accused as stated above. Aggrieved by the above said conviction and sentence, the present appeal has been filed by the appellant/accused. 11. Mr. P. Kumaresan, learned counsel appearing for the appellant/accused would submit that the appellant/accused being a line man in the telephone department had admitted having received the amount of Rs.1,250/- and would submit that the amount has been received by the appellant/accused for the expenses for transporting the unused poles from elsewhere and for labour charges towards digging the pits and erecting the poles and thereby, the amount of Rs.1,250/- stated to have been received from PW2 cannot be termed illegal gratification and thereby, when the amount received by him is not towards illegal gratification, the conviction of the appellant/accused cannot be sustained and would submit that mere recovery of tainted money itself is not enough to sustain the conviction in the absence of evidence to prove that the money paid was towards bribe and that the appellant/accused had voluntarily accepted the money knowing it be bribe. When the money is not towards illegal gratification burden is not cast upon the appellant/accused to rebut the presumption under Section 20 of the Prevention of Corruption Act, 1988. Despite there being no burden on the appellant/accused the presumption under Section 20 of the Prevention of Corruption Act, 1988 had been categorically rebutted by him and that the evidence recorded during the trial would go to show that the amount received by the appellant/accused cannot be taken as illegal gratification when there is absolutely no material to show that the appellant/accused obtained the amount towards any pecuniary advantage for himself. He would also submit that the presumption under Section 20 of the Prevention Act,1988 has been rebutted by the appellant/accused by giving a proper explanation for receipt of the amount and that the trial court erred in not believing the explanation given by the appellant/accused. He would also submit that the presumption under Section 20 of the Prevention Act,1988 has been rebutted by the appellant/accused by giving a proper explanation for receipt of the amount and that the trial court erred in not believing the explanation given by the appellant/accused. He would further submit that the prosecution had failed to prove the initial burden that the amount accepted or obtained by the appellant/accused was an amount of other than legal remuneration and would submit that only when the initial burden of the demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shift upon the appellant/accused under Section 20 of the Prevention of Corruption Act, 1988. He would also submit that the prosecution had failed to prove that the amount received by the appellant/accused was a bribe amount through the cogent and convincing evidence and that the appellant/accused having accepted the receipt of money had properly explained the circumstances under which the money had been taken and thereby, the amount recovered from the appellant/accused cannot be brought within the meaning of illegal gratification which had been received by him as pecuniary advantage to himself or any other person. The learned counsel for the appellant/accused would further submit that the trial court erred in not considering the testimony of witnesses in proper perspective. He would also submit that admittedly, PW2/complainant had stated that the appellant/accused had asked the amount of Rs.1,250/- towards expenses for digging the pits and erecting the poles. He would also submit that the case of the prosecution is that PW2 was originally residing in a town area and that he had shifted his residence to a farm house in a technically non feasible area, where there was no provision for giving immediate telephone connection. The appellant/accused being a telephone lineman had not indulged any misconduct and that he had as per the instructions of the superior officers had carried out the work and infact he had not delayed the process and that he had arranged to give connection by transporting unused telephone poles from somewhere and had taken steps to give connection by digging the pits and erecting the poles by engaging private labourers and had received the money for paying the transport charges and wages for the labourers. The learned counsel would submit that the appellant/accused had not gained any pecuniary advantage in the process of giving new telephone line connection and infact, he had spent some amount from his pocket. He would also submit that as per the case of the prosecution, when PW2 had given the application for transferring the telephone connection to his new location, the same will be intimated to the appellant/accused through PW6 who is his superior officer. After the process is completed at the exchange the appellant/accused will have to give the connections on the orders of the superior officers. Admittedly, the new residence of PW2 was located far away from the existing distribution point which is in a technically non feasible area and if a connection has to be given to his new residence, 4 or 5 poles have to be erected and the line has to be drawn from the existing point and later, a new distribution point has to be fixed in front of the new residence and then only, the connection can be provided. The above difficulties were informed to PW2 and PW6 and further as per the rules of the telephone department, digging of pits and erection of poles and transport of poles can be done only through the contractors employed by the department. However, PW6 who is the superior officer to the appellant/accused had insisted the appellant/accused to give the connection at the earliest and that PW2 had also agreed to pay the charges for transporting the unused poles to his house and had also agreed to pay the labour charges for digging the pits and erecting the poles and on the assurance given by PW2 the appellant/accused had agreed to engage private labourers. Further, the appellant/accused had not demanded any other illegal gratification for doing the work and had accepted the money only to be paid for the labourers who had dug the pit for erecting the poles. The learned counsel for the appellant/accused would insist that as per the testimony of the witnesses the job of digging the pits and erection of poles had been completed even before the money was handed to the appellant/accused towards expenses for the same and further, the appellant/accused had also elicited by examining the witnesses that the amount of Rs.1,250/- would be the actual cost for transport and labour charges. He would further reiterate that on reading the evidence of PW2 in entirety, no where, it had been stated by PW-2 that the amount of Rs.1,250/- was demanded by the appellant/accused towards bribe or illegal gratification. He would further submit that the very same explanation had also been given by the appellant/accused at the time of questioning under 313 Cr.P.C and the same has also been corroborated by the prosecution witness/PW2. 12. The learned counsel for the appellant/accused would further submit that though there are vital contradictions in the evidence relating to recovery of money from the appellant/accused he would restrict his arguments with regard to demand stating that the prosecution has failed to prove that the money was taken towards illegal gratification and when the prosecution has failed to prove that the money was towards illegal gratification, the trial court ought to have acquitted the appellant/accused. Further, to strengthen his case, the appellant/accused had also rightly given an explanation and by examining the witnesses let in evidence to prove that the money was obtained only towards expenses and thereby, the trial Court ought to have accepted and believed the explanation offered by the appellant/accused that the money was taken by him was only towards expenses incurred for transporting the unused poles and labour charges for erecting the poles and the court ought to have accepted the explanation under rebuttal warranted under Section 20 of the Prevention of Corruption Act, 1988 and accepted the appellant/accused. He would also submit that the evidence of PW6 is important, inasmuch as, it is clear that the house of the complainant was in a technically non feasible area and PW6 had stated that he had seen that the pits have been dug and the wires and poles were found at the home of PW2. PW6 had also stated that the poles and wires which were found at the house of PW2 have not been brought from the stores of the department and he had also stated that the poles were unused poles and that they have been brought from somewhere else. PW6 had stated that though no permission had been obtained from the higher officials for usage of such poles he had also stated that there is no prohibition for using the unused poles, if it is needed for providing another connection. PW6 had stated that though no permission had been obtained from the higher officials for usage of such poles he had also stated that there is no prohibition for using the unused poles, if it is needed for providing another connection. The learned counsel for the appellant/accused would further submit that the appellant/accused had no criminal intention or motive and that he had with a genuine intention to provide telephone connection in the house of PW2, had shifted unused poles from elsewhere and had engaged private labourers for digging the pits and fixing the poles. Further, the appellant/accused had also not received any amounts in excess of the actual cost incurred for transporting the unused poles and paying the labourers for digging the pits and erecting the poles and the department has also not paid any amounts for the same and has not suffered any pecuniary loss and the appellant/accused had not made any pecuniary gain. He would also submit that at the most ,the appellant/accused can be hauled up for doing the work without obtaining any permission from his superior officers and for using old poles and for engaging private persons for installing the poles which had been done in violation of the rules of the department. The learned counsel for the appellant/accused would also submit that at the most, departmental action can be initiated or taken against the appellant/accused for contravention of rules of duty and for out sourcing the job of fixing the poles to third parties without the approval of the higher officers in the department. He would further submit that the explanation given by the appellant/accused for having received the amount is probable and that it is only towards expenses and not bribe and the explanation given by the appellant/accused is a plausible and probable and that when the explanation given by the appellant/accused is probable, benefit of doubt should be given to the appellant/accused. He would also submit that comparatively the burden on the accused to prove his case is by preponderance of probability which is lesser than the burden cast upon the prosecution to prove its case beyond reasonable doubt. 13. He would also submit that comparatively the burden on the accused to prove his case is by preponderance of probability which is lesser than the burden cast upon the prosecution to prove its case beyond reasonable doubt. 13. With regard to above submissions the learned counsel would refer to the relevant portions in the deposition of PW2 and PW6 and also to the explanation offered by the appellant/accused during questioning under Section 313 Cr.P.C. PW2 stated in his Chief Examination has sated as follows:- “XXXXXXXXXXXXX” PW2 stated in his Cross Examination has sated as follows:- “XXXXXXXXXXXXX” PW6 in his Chief Examination has stated as follows:- “XXXXXXXXXX” PW6 in his Cross Examination has stated as follows:- “XXXXXXXXXXXXXXXXXXXXXX” Questioning under Section 313 Cr.P.C:- “XXXXXXXXXXXXXXXXXX” 14. Further, in support of the above submissions made, the learned counsel for the appellant/accused would rely on the decision of this Court reported in 2014 (2) LW (Crl) 267 in the case of S. Vijayalakshmi Vs. State and an unreported judgment of this Court in C.A. No. 675 & 714 of 2009 in the case of A. Venkatachalam Vs. State, wherein this Court holding that the trial court had not given due consideration to the explanation given by the appellant that the amount was received by the appellant from the de-facto complainant to remunerate A-2 who had been assisting the official work due to shortage of staff in the Taluk Office and that this Court had held the trial court ought to have considered that the service of A2 was temporarily utilized to share the work load and for the service rendered by him a small remuneration is given to him had allowed the appeal and acquitted the appellant. He would also rely upon the judgment of the Hob'ble Apex Court reported in (2016) 12 SCC 150 in the case of V. Sejappa Vs. He would also rely upon the judgment of the Hob'ble Apex Court reported in (2016) 12 SCC 150 in the case of V. Sejappa Vs. State by police Inspector Lokayukta, Chitradurga and would submit that the Hon'ble Apex Court had held that mere recovery of the tainted money is not sufficient to convict the appellant/accused unless the prosecution is able to prove that there is proof for demand and the demand is towards illegal gratification and that when demand is not proved, presumption under the 20 of the Prevention of Corruption Act, 1988 cannot be invoked and even, if the court invokes the presumption under Section 20 of the Prevention of Corruption Act, 1988, the court is required to consider explanation offered by the accused, if any, only on touch stone of preponderance of probability and not on the touch stone of proof beyond all reasonable doubts. Further, he would also refer to the judgment of the Hon'ble Apex Court reported in (2016) 12 SCC 273 A. Sivaprakasam Vs. State of Kerala and would submit for proving charges under Section 13(1)(d), the prosecution has to prove what kind of pecuniary advantage was obtained by the appellant/accused. 15. The learned Special Public Prosecutor for CBI cases would submit though the amount has stated to have been taken towards expenses the appellant/accused had not acted in a lawful manner. He would further submit that the recovery of the money from the appellant/accused had been admitted by him. Though, it had been stated by the appellant/accused that the money was received by him towards expenses in digging the pits and erecting the poles, the appellant/accused had not obtained any permission from the superior officers with regard to using the old unused poles and had acted illegally in violation of the rules of the Telephone Department by engaging private persons for digging the pits and erecting the poles and further, he had not intimated about it to the superior officers and thereby, acted in an unlawful manner. However, he would fairly submit that in a case on almost similar set facts, the Hon'ble High Court of Kerala in the decision reported in CDJ 2016 Ker HC 525, in the case of Parappurath Damodaran Vs. However, he would fairly submit that in a case on almost similar set facts, the Hon'ble High Court of Kerala in the decision reported in CDJ 2016 Ker HC 525, in the case of Parappurath Damodaran Vs. State of Kerala, wherein, the appellant/accused had engaged workers from outside for erection of electric posts and laying line and no amounts had been paid to them by the Electricity Board had accepted the explanation of the accused holding that the amount paid by him to the workers can be treated as remuneration for installing the poles on behalf of the department and had acquitted the accused. 16. Now, what is to be seen is, i) Whether the demand has been proved, ii) Whether the amount received by the appellant/accused was towards illegal gratification or towards expenses incurred in providing telephone connection to PW2, iii) Whether the explanation offered by the appellant/accused to rebut the presumption under Section 20 of the Prevention of Corruption Act, 1988 is plausible and acceptable. In the case of S. Vijayalakshmi Vs. State reported in 2014 (2) LW (Crl) 267, this Court held as follows:- “5. The next contention of the learned senior counsel for the appellant is that the prosecution has failed to establish the factum of the appellant of the appellant having received the illegal gratification. He would submit that where the accused offers an explanation for receipt of the alleged amount, he is not required to establish his defence by proving beyond reasonable doubt as the prosecution, but can establish the same by preponderance of probability. 10. It is settled principle of law that mere recovery of the tainted money is not sufficient to record a conviction, unless there is evidence that bribe had been demanded or money was paid as a bribe. In the absence of any evidence of demand and acceptance of the amount as illegal gratification, recovery would not alone be a ground to convict the appellant. 14. In the instant case, the defence of the accused is that she received the money for flag day fund and for transport expenses. It is well settled that the accused is not required to prove his defence beyond a reasonable doubt, but only preponderance of probability. 14. In the instant case, the defence of the accused is that she received the money for flag day fund and for transport expenses. It is well settled that the accused is not required to prove his defence beyond a reasonable doubt, but only preponderance of probability. In this case, on prosecution's own showing, that onus can be said to have been duly discharged by the appellant, more particularly, when PW-2 himself admitted in his evidence that the appellant demanded money for flag day fund. The explanation given by the appellant both during cross examination of prosecution witnesses and in his own statement, recorded under Section 313 Cr.P.C is quite plausible. 15. In Punjabrao Vs. State of Maharashtra, AIR 2002 SC 486 it has been held that even when the accused did not offer his explanation that it was in relation to a collection of loan when the trap laying officer seized the amount from the accused, but that by itself would not be sufficient to throw away the explanation offered by the accused in his statement under Section 313 of Cr.P.C when such explanation could be held to be reasonable under the facts and circumstances of the case. 16. In applying the said principle to this case, I am of the considered opinion that the prosecution has failed in establishing the guilt of the appellant beyond reasonable doubt that there was a demand and acceptance of illegal gratification. Whereas, the appellant/accused has given plausible and acceptance explanation and discharged the burden, thus rebutting the presumption under Section 20 of the Act and therefore, the appellant is liable to be acquitted of the charges levelled against her.” In the case of A. Venkatachalam Vs. State in C.A. 675 & 714 of 2009 unreported of this Court held as follows:- “14. Though A1 contends that on 14.10.1998 he was on other duty for which he relies upon Ex.P.10 Attendance Register, to establish he did not demand bribe from PW.2 on 14.10.1998, since A1 admits in its explanation given under section 313 of Cr.P.C the receipt of Rs.60/- from PW.2. The core issued being involved in this case whether Rs.60/- received by A1 and given to A2 is illegal gratification to attract section 7 and 13 (1) of Prevention of Corruption Act. Thus the short point to be answered is whether this money amounts illegal gratification or not. The core issued being involved in this case whether Rs.60/- received by A1 and given to A2 is illegal gratification to attract section 7 and 13 (1) of Prevention of Corruption Act. Thus the short point to be answered is whether this money amounts illegal gratification or not. A1 admits that he used to engage A2 to assist him in his official work due to heavy work load. A2 is not paid any salary from the Government therefore he used to get some money from the persons who come to Taluk Office and give it to A2 as daily wage. This fact is known to Tahsildhar and Deputy Tahsildhar. The money recovered from A2 is one such money given by PW.2. A1 did not demand any money as bribe from PW.2 but it was voluntary given by PW.2 to A2. 15. The learned counsel for the first appellant would point the deposition of PW.5 Tahsildhar, who admits that A1 had A2 to assist him in the work and death certificate issued in the name of Parvathi has been prepared by A2. In the cross examination PW.5 admits that Government is not paying any salary to A2 he was engaged by A1 privately and paid by A1. The A1 is charged for the offence under section 7 and 13 of Prevention of Corruption Act, 1988. 16. Whereas A2 is charged for the offence under section 12 and r/w 7 Prevention of Corruption Act section 12 of the Act reads as under:- Whoever abets any offence punishable under section 7 or section 11 whether or not that offence is committed in consequence of that abetment, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine. 17. The explanation of A1 per se is sufficient to hold that the money received by him is not a legal remuneration. It has been obtained by him to pay A2. It is an admitted fact that A2 had been engaged by A1 to assist in the Official work. Such delegation of work like preparing death certificates is illegal and amount to dereliction of duty which in fact a conduct unbecoming of an public servant. It has been obtained by him to pay A2. It is an admitted fact that A2 had been engaged by A1 to assist in the Official work. Such delegation of work like preparing death certificates is illegal and amount to dereliction of duty which in fact a conduct unbecoming of an public servant. Unfortunately in this case the Tahsildar PW.5 who is the head of the Office himself admits that he had permitted A1 to have a private Assistant to prepare the documents and PW.5 had gone to the extent of identifying the writing in the death certificate is that of A2. 18. However, this court is unable to subscribe the finding of the Trial Court for the reason that Rs.60/- which has been obtained by A1 had not been retained by him but had been given to A2 in the presence of de facto complainant. The prosecution case projected through PW.2, PW.3 and PW.7 (TLO) is also to that effect. A1 admits acceptance of money but deny that he demanded that money as a bribe to issue death certificate. In the absence of proof that PW.2 met the first accused on 14.10.1998, the demand of Rs.60/- as a bribe on 14.10.1998 gets falsified. Though the de-facto complainant claims that he met the accused on 15.10.1998 there is no evidence let in by the prosecution to substantiate this. On 16.10.1998 A1 himself admits that he has received Rs.60/- from PW.2 and gave it to A2 for the service rendered by him in preparing the death certificate of Parvathi. In the said circumstances taking note of the explanation given by first appellant, this court holds that A1 had out sourced his responsibility to A2 and for outsource he has taken money from PW.2. It is not legal remuneration but at the same time the trivial money could not be taken as illegal gratification also. As far as A2 is concerned he had no knowledge about the alleged demand by A1. What he has received is his remuneration for assisting A1 in preparing the death certificate of Parvathi. It is not legal remuneration but at the same time the trivial money could not be taken as illegal gratification also. As far as A2 is concerned he had no knowledge about the alleged demand by A1. What he has received is his remuneration for assisting A1 in preparing the death certificate of Parvathi. Had, prosecution proved that A1 received Rs.60/- as gratification with intention by corrupt or illegal means then A2 could be held liable for assisting him in getting the gratification, uniquely, the facts and explanation given by A1, this court finds mens rea to make unlawful gain through illegal gratification which is the ingredient of section 7 and 13 is absent. Though for dereliction of duty and for out sourcing third person to do his job is a matter for departmental action as against A1. 19. In the light of above facts and circumstances of the case, this court finds it is not a case fit for convicting A1 under Prevention of Corruption Act but fit case to be proceeded against him departmentally for engaging A2 a third person to do the job of Record Clerk. In such circumstance, this court finds that the judgment of trial court is liable to be set aside. When A1 who is charged for the substantial offence under section 7 is exonerated, A2 is also entitled for acquittal from the charge of abatement. 20. In the result, the Criminal Appeals are allowed. The judgment of conviction and sentence passed by Special Court cum Chief Judicial Magistrate Court, Perambalur. in C.C. No. 5 of 2000 is hereby set-aside. The bail bond executed if any by the appellants shall stand cancelled. Fine amount paid if any shall be refunded to the appellants. The appellants are set at liberty forthwith unless their presence is required in connection with any other case." In the case of V. Sejappa Vs. State by Police Inspector Lokayukta, Chitradurga reported in (2016) 12 SCC 150 , the Hon'ble Apex Court while referring to several earlier judgments has held as follows:- "18. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. State by Police Inspector Lokayukta, Chitradurga reported in (2016) 12 SCC 150 , the Hon'ble Apex Court while referring to several earlier judgments has held as follows:- "18. It is well settled that the initial burden of proving that the accused accepted or obtained the amount other than legal remuneration is upon the prosecution. It is only when this initial burden regarding demand and acceptance of illegal gratification is successfully discharged by the prosecution, then the burden of proving the defence shifts upon the accused and presumption would arise under Section 20 of Prevention of Corruption Act. In the case at hand, all that is established by the prosecution was the recovery of money from the appellant and mere recovery of money was not enough to draw the presumption under Section 20 of Act. 19. After referring to Suraj Mal Vs. State Delhi Admn, in C.M. Girish Babu V. CBI, it was held as under: (SCC P.784, para 18) "28. In Suraj Mal Vs. State 9Delhi Admn), this Court took the view that (at SCC P.727, para 2) mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe." 20. In State of Kerala V.C.P. Rao, it was held that mere recovery of tainted money is not sufficient to convict the accused and there has to be corroboration of the testimony of the complainant regarding the demand of bribe. 21. While dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it illegal gratification and that the prosecution has a further duty to prove that what was paid was an illegal gratification, reference can be made to the following observation in Mukut Biharai V. State of Rajasthan, where it was held as under: (SCC PP. 645-46, para 11). "11. The law on the issue is well settled that demand of illegal gratification is since qua non for constituting an offence under the 1988 Act. 645-46, para 11). "11. The law on the issue is well settled that demand of illegal gratification is since qua non for constituting an offence under the 1988 Act. Mere recovery of tainted money is not sufficient to convict the accused, when the substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as bribe. Mere receipt of amount by the accused is not sufficient to fasten the guilt, in the absence of any evidence with regard to demand and acceptance of the amount as illegal gratification, but the burden rests on the accused to displace the statutory presumption raised under Section 20 of the 1988 Act, by bringing on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the 1988 Act. While invoking the provisions of Section 20 of the Act, the court is required to consider the explanation offered by the accused, if any, only on the touchstone of preponderance of probability and not on the touchstone of proof beyond all reasonable doubt. However, before the accused is called upon to explain as to how the amount in question was found in his possession, the foundational facts must be established by the prosecution." Further in the case of A. Sivaprakasam Vs. State of Kerala reported in (2016) 12 SCC 273 , the Hon'ble Apex Court held as follows:- "18. The prosecution has sought to cover the case of the appellant under sub-clause (ii) of Section 13(1)(d) and not under sub-clause (i) and sub-clause (iii). Insofar as sub-clause (ii) is concerned, it stipulates that a public servant is said to commit the offence of criminal misconduct if he, by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage. Thus, the ingredients which will be required to be proved are: (1) The public servant has abused his position. (2) By abusing that position, he has obtained for himself or for any other person any valuable thing or pecuniary advantage. 19. It was not even the case set up by the prosecution that appellant had taken that money from some person and had obtained any pecuniary advantage thereby. (2) By abusing that position, he has obtained for himself or for any other person any valuable thing or pecuniary advantage. 19. It was not even the case set up by the prosecution that appellant had taken that money from some person and had obtained any pecuniary advantage thereby. It was the obligation of the prosecution to satisfy the aforesaid mandatory ingredients which could implicate the appellant under the provisions of Section 13(1)(d)(ii). The attempt of the prosecution was to bring the case within the fold of clause (ii) alleging that he misused his official position in issuing the certificate utterly fails as it is not even alleged in the charge-sheet and not even iota of evidence is led as to what kind of pecuniary advantage was obtained by the appellant in issuing the said letter. 20. In C. Chenga Reddy & Ors. v. State of A.P., this Court held that even when codal violations were established and it was also proved that there were irregularities committed by allotting/awarding the work in violation of circulars, that by itself was not sufficient to prove that a criminal case was made out. The Court went on to hold: (SCC P.207, para 22) “22. On a careful consideration of the material on the record, we are of the opinion that though the prosecution has established that the appellants have committed not only codal violations but also irregularities by ignoring various circulars and departmental orders issued from time to time in the matter of allotment of work of jungle clearance on nomination basis and have committed departmental lapse yet, none of the circumstances relied upon by the prosecution are of any conclusive nature and all the circumstances put together do not lead to the irresistible conclusion that the said circumstances are compatible only with the hypothesis of the guilt of the appellants and wholly incompatible with their innocence. In Abdulla Mohd. Pagarkar v. State (Union Territory of Goa, Daman and Diu), (1980) 3 SCC 110 , under somewhat similar circumstances this Court opined that mere disregard of relevant provisions of the Financial Code as well as ordinary norms of procedural behaviour of government officials and contractors, without conclusively establishing, beyond a reasonable doubt, the guilt of the officials and contractors concerned, may give rise to a strong suspicion but that cannot be held to establish the guilt of the accused. The established circumstances in this case also do not establish criminality of the appellants beyond the realm of suspicion and, in our opinion, the approach of the trial court and the High Court to the requirements of proof in relation to a criminal charge was not proper....” 21. We, therefore, are of the opinion that the prosecution has miserably failed to prove the charge beyond reasonable doubt and the courts below have not looked into the matter in a proper perspective. We, thus, allow this appeal and set aside the conviction of the appellant. The appellant is already on bail. His bail bonds shall stand discharged." Further in the case of Parappurath Damodaran Vs. State of Kerala reported in CDJ 2016 Ker HC 525, where the facts are almost similar to that of the case on hand the Hon'ble Kerala High Court held as follows:- "5. The appellant filed a statement in writing just on the completion of his examination under Section 313 Cr.P.C. by contending that he had not obtained any illegal gratification or bribe as alleged; whereas, the consumer was informed of the expense of 750/- for engaging three workers for installing an electric post, for drawing the electric line and for giving electrical connection to the house of PW9 by drawing service wire. Three workers were employed. PW9 had agreed to pay the amount on the next day. The amount was sent through PW1. He accepted the amount for handing over it to the Sub Engineer for making payments to the said three workers, who were employed for installing the post and other related works. 9. The learned counsel for the appellant has argued that the amount of 750/- received by the appellant from PW1 was not illegal gratification; whereas, it was legal remuneration and therefore, no offence was made out in the case. It is also argued that the prosecution could not prove the element of demand in order to invite the offences under Sections 7 and 13(1)(d) of the PC Act. Per contra, the learned Public Prosecutor has argued that the manner in which the amount was paid by PW1 and the amount was accepted by the appellant, clearly denotes demand. It is also argued that the manner in which the amount was accepted will clearly go to prove that it was not accepted as legal remuneration. 14. Per contra, the learned Public Prosecutor has argued that the manner in which the amount was paid by PW1 and the amount was accepted by the appellant, clearly denotes demand. It is also argued that the manner in which the amount was accepted will clearly go to prove that it was not accepted as legal remuneration. 14. The evidence of PWs.3, 5 and 12 also assume importance in this case regarding the contention advanced by the appellant. PW3 was the Assistant Engineer of the concerned Electrical Section as on the date of incident. In cross-examination, he has clearly admitted that when outside labourers were to be employed, their wages were to be paid by the Assistant Engineer. On obtaining the receipt, the Assistant Engineer had to get it reimbursed subsequently. When consumers are prepared to make such payment, such consumers are allowed to pay the wages of outside labourers, in order to carry out the work. It was a practice that was prevalent in the KSEB. PW5 also was the Assistant Engineer of the concerned Electrical Section. According to him, he was on leave as on the date of incident and therefore, PW3 was in his additional charge. He has clearly deposed that there was a practice of the consumers' employing outside labourers for carrying out such works. In this particular case, three workers were employed from outside and no amounts were paid to them from the KSEB. Therefore, it is evident that the Board has not spent any amount towards the wages of the said three outside labourers. 17. In such case, when the KSEB, in which the appellant was working as a Lineman on contract basis, had permitted all the Sub Engineers to employ outside labourers and had also permitted the consumers to meet the expenses towards the wages of outside labourers, the amount of 750/- paid by PW1 for and on behalf of PW9 can only be legal remuneration. It has come out in evidence that the KSEB had not made any such payment. It is an admitted fact that an electric post was installed and line was drawn for giving electrical connection to the house of PW9. Somebody had to do the said work. There is no reason to discard the evidence of PWs.3, 5, 12 and DW1 on the aforesaid aspect. 18. It is an admitted fact that an electric post was installed and line was drawn for giving electrical connection to the house of PW9. Somebody had to do the said work. There is no reason to discard the evidence of PWs.3, 5, 12 and DW1 on the aforesaid aspect. 18. Apart from the above, PW10, who was one of the aforesaid outside labourers, who was engaged by PW12 has also deposed in terms of the evidence of PWs.3, 5, 12 and DW1. According to PW10, he has not received the wages for the aforesaid work done by him on the date of incident. The said amount of wages has not been paid to him, so far. From all the above, it seems that the said amount of 750/- was nothing but legal remuneration to which the aforesaid three workers were entitled. The consumer handed over the amount to the appellant who was the concerned Lineman since the Sub Engineer was not present. The explanation offered by the appellant that he had accepted the amount for handing over it to PW12 to defray the wages of the said three outside labourers can only be accepted." 17. Now coming to the case on hand, while analyzing the facts of the case coupled the evidence in this case in the context of the judgments referred above, as rightly pointed by the learned counsel for the appellant, PW2 in his deposition had stated that the appellant/accused had demanded the money towards expenses and that on 14.09.2006, PW2 had met the appellant/accused and during the meeting, the appellant/accused had informed him that in order to give connection 4, 5 pits have to be dug and poles have to be erected and that he would incur expenses for the same. Further, PW2 had also deposed that in his village the wages for availing the service of a labourer would be Rs.150/- per day and that for digging 5 pits, 7 or 8 people have to be engaged and that 4 poles had been erected to give line to his house and that the appellant/accused would have incurred Rs.250/- for transporting the poles from some other place. Further, PW2 had also admitted that on 15.09.2006, the pits had been dug and the poles had been erected. Though the labourers have not been examined, the admission of PW2 is sufficient to show that the work had been done. Further, PW2 had also admitted that on 15.09.2006, the pits had been dug and the poles had been erected. Though the labourers have not been examined, the admission of PW2 is sufficient to show that the work had been done. It has also been confirmed by PW6 who had visited the place after the trap proceedings. He had also stated that the poles were not taken from the stores. The trial Court had not considered the evidence of PW2 in right perspective. PW2 had deposed that the pits have been dug and 4 poles had been erected on 15.09.2006. Whereas, the trial court had given an erroneous finding as if the appellant/accused had brought the poles and cables to PW2's house, but, did not carry out the work and as per the opinion of this Court the trial Court had not considered the explanation offered by the appellant/accused in the right perspective. Though the act of the appellant/accused in engaging private labourer and using of unused poles without obtaining permission from the higher officials in the department can be deemed to be violation of departmental rules and an illegality inviting departmental action, the receipt of money for expenses towards transport of the unused poles to the house of PW2 and wages towards the labourers for digging the pits and erection of poles cannot be treated as illegal gratification by which the appellant/accused had obtained any pecuniary advantage for himself or for others. 18. From the above discussions, this court is of the view that the amount received by the appellant/accused was towards expenses to be paid in respect of the transportation charges and wages of the labourers and that the appellant/accused had not obtained any pecuniary advantage for himself and that the explanation offered by the appellant/accused that the money was received towards the expenses is plausible and acceptable and that the trial court ought to have accepted the explanation. This court is of the view that the prosecution has failed to prove the offences under Section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and thereby, the judgment of the trial court is liable to be set aside. 19. This court is of the view that the prosecution has failed to prove the offences under Section 7 and 13(2) r/w 13(1)(d) of the Prevention of Corruption Act, 1988 and thereby, the judgment of the trial court is liable to be set aside. 19. For the above reasons, the Criminal Appeal is allowed and the judgment of conviction and sentence passed by the learned II Additional District Judge, Special Court for CBI Cases, Coimbatore in C.C.No.7 of 2006 dated 19.10.2007 is here by set aside and the appellant/accused is acquitted. The bail bonds executed by and on behalf of the appellant/accused shall stand cancelled and the fine amount, if any, paid shall be refunded to the appellant/accused. However, the order of acquittal will not preclude the Telephone Department to proceed against him for having committed the acts in violation of the rules of the department.