1. THE present appellant has preferred this appeal under sec. 374(2) of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 19.3.1998 passed by the learned Jt. District Judge and Addl. Sessions Judge, Banaskantha at Palanpur in Special Case No.38/1992, whereby, the learned Judge has convicted the appellant under sec. 7 and sec. 13(1)(d) r/w 13(2) of the Prevention of Corruption Act and sentenced him to undergo R/I for two years, which is impugned in this appeal.

2. THE brief facts of the prosecution case is as under:

It is the case of the prosecution that the appellant was serving as Executive Engineer, Water Supply and Sewerage Board, Mechanical Sub-Division, at Palanpur on 16.1.1989, whereas, the complainant was doing the business of supplying the materials. That it was the practice in the office of the appellant that for accepting the tender, 5% of total amount is to be paid to the Executive Engineer and other staff members and remaining 5% was to be paid on receiving the cheque amount. The tender was accepted in the month of November but there is no evidence that at the rate of 5% any amount was paid to the accused. However, it was alleged that a cheque of Rs. 3,900/- was prepared and given on 11.1.1989. The complainant has received the said cheque from Dy. Accountant and at that time he had also passed the receipt for the said amount to the Dy. Accountant. On 11.1.1989 the Dy. Accountant was one Asifbhai Sunasara. The complainant stated that the said cheque was given to him by the appellant on 11.1.1989 and at that time, the appellant asked as to what about his percentage. Thereupon, the complainant asked him that when he would be available, to which, the appellant informed him that he would be available on 16.1.1989. Thereafter, he went to ACB Office and lodged the FIR and produced Rs. 400/- before the PI, ACB at the time of lodging the FIR. Thereafter, the services of two panchas were sought from the office of District Panchayat, Palanpur, Dist. Banaskantha. The facts of the case was narrated to them and thereafter the demonstration was made on the currency notes with the help of anthracene powder. The basic ingredients of the anthracene powder were made understood to the panchas as well as the complainant. Four currency notes, each of Rs. 100/-, were smeared with anthracene powder and they were shown in ordinary light but no fluorescent effect could be found. When those currency notes were shown in UV Lamp, blue fluorescent marks were found on the same. After performing this demonstration, the preliminary part of the panchnama was drawn. The currency notes which were smeared with anthracene powder were put in the pocket of the bush shirt of the complainant and thereafter necessary instructions were given to the complainant that as and when the appellant-accused demands the money he has to touch the cover lying in the pocket and till that stage the complainant was specifically instructed not to touch the same. The panch no. 1 was instructed to remain with the complainant and to hear the conversation which takes place between them and to see the passing of the currency notes. The panch no. 2 was instructed to remain with the other members of the raiding party. This part of the panchnama was prepared between 3.00pm and 4.15pm in the office of the ACB. Thereafter, the raiding party proceeded to the office of the Executive Engineer. The peon of the appellant told them that the appellant-accused had gone to take break-fast at Lajvanti Hotel. Thereupon, the complainant and panch no. 1 went to Lajvanti Hotel, where, the appellant-accused along with other staff members was taking break-fast. Along with him, Dy. Accountant Mr. Sunasara, one Mr. Nasirbhai, a contractor staying at Ahmedabad and one another man were sitting in the said hotel. The appellant offered tea and the panch and complainant had taken the tea. Thereafter, the complainant told to the appellant that he wanted