Prosecution must prove beyond doubt the voluntary acceptance of money as illegal gratification; accused's explanation need only be plausible and acceptable, not proven beyond reasonable doubt.

JUDGMENT

Per: Rakesh Saksena, J.

Appellant has filed this appeal against the judgment dated 10th April, 2000 passed by Special Judge (Prevention of Corruption Act), Jabalpur in Special Criminal Case No.28/91 convicting him under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and section 161 of the Indian Penal Code and sentencing him to rigorous imprisonment for 2 years with fine of Rs.2000/- on each count, respectively. Sentences of imprisonment concurrent.

2. The accusation against the appellant is that on 23.1.1987 while he was posted as Assistant Sales Tax Officer, Jabalpur, he by abusing his position as a public servant, by corrupt and illegal means, obtained Rs.500/- as illegal gratification for showing favour to complainant Musharrat Ali in his sales tax assessment case.

3. In short, the prosecution case is that complainant Musharrat Ali was a building contractor. His firm was registered in the name of S.M. Construction. He received a notice issued by appellant, who was posted as Assistant Sales Tax Officer in Circle-II, Jabalpur for his appearance in his office on 22.1.1987. It is alleged that when complainant appeared in the office, appellant informed him that a case of sales tax assessment was registered against him in which he was required to pay a sum of Rs.5000/- as tax; if he gave Rs.1000/- to him separately, he will assess lesser tax. When complainant told to him that he had already suffered losses and he was not in a position to pay that much, appellant asked him to pay Rs.500/- initially and to pay Rs.500/- later. He asked complainant to come with Rs.500/- in the office on 23.1.1987. Since complainant did not want to give bribe and wanted appellant to be caught taking bribe, he approached to the office of SPE Lokayukta, Jabalpur and submitted a written complaint Ex.P/1 to Superintendent of Police, Lokayukta. DSP Hanumant Singh (PW-13) instructed and authorized inspector S.K.Mishra (PW-14) to arrange for a trap.

4. Inspector S.K.Mishra summoned District Legal Aid Officer Pankaj Upadhyaya (PW-1) and Shahjad Khan (PW-4) as panch witnesses. Shri Pankaj Upadhyaya read over the application Ex.P/1 to complainant and verified its truthfulness. Inspector Mishra demonstrated the use of phenolphthalein powder and sodium carbonate solution in the trap proceeding and after obtaining five notes of Rs.100/- from the complainant, asked peon Petram to apply phenolphthalein powder to them. He noted the numbers of the notes and got them initialled by Shri Pankaj Upadhyaya (PW-1). Currency notes were kept in the pocket of complainant and he was asked to tender these notes to appellant on his demand and to give signal to trap party. Complainant was made to observe the precaution of not touching the notes before delivering the same to appellant. Preliminary memorandum Ex.P/2 was recorded.

5. At about 2:30 p.m. members of trap party reached at the sales tax office. Complainant and Shahjad Khan (PW-4) went to the office of appellant which was situated on the first floor of the building. Other members of the trap party sat on the bench kept in the verandah. At about 2:40, complainant came out of the office of appellant and gave prefixed signal whereupon trap party entered the office. After giving their introduction to appellant, inspector Mishra caught hold of the right hand of appellant and got it washed with sodium carbonate solution, the solution turned pink. The hands of panch witnesses were also washed with the solution but the colour of the solution remained unchanged. Said solutions were seized and sealed.

6. On search from the right pocket of the coat of the appellant, Pankaj Upadhyaya recovered five notes of Rs.100/- and identified his signatures on them. He also tallied the numbers of the notes recorded in preliminary memorandum Ex.P/2. Besides the aforesaid money, Rs.3616/- were also recovered and seized from his left pocket of the coat vide seizure memo Ex.P/5. The sodium carbonate solution turne