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,