JUDGMENT P. Dayal, J. - This appeal is directed against the judgment and order dated 22-3-1983 passed by Sri. V.N. Pandey Vlth Additional Sessions Judge, Lucknow convicting and sentencing the Appellant Santosh Kumar to two years R.I. and to pay a fine of Rs. 1000/- and in default of payment of fine to six months S.I. u/s 161 IPC and to three years R.I. and to pay a fine of Rs. 1500/-and in default of payment of fine to undergo nine months S.I. u/s 5(2) read with Section 5(1)(d) of the Prevention of Corruption Act. 2. The facts of the prosecution case, briefly stated, are that the Appellant Santosh Kumar was posted as Assistant Engineer, Mechanical and Electrical, in the Electrical Division (2) PWD, Lucknow and he was incharge of the works of district Lakhimpur Kheri, Hardoi and Unnao. The complainant Sumiran Singh PW 1 had his workshop at Cinema Chauraha, Hardoi and he was given a contract to carry on the repair work of the road rollers No. 5979 in the year 1978-79 and a sum of Rs. 5910/- was payable by the Department for the two bills. Junior Engineer Surendra Tripathi and the Appellant Santosh Kumar were to pass those bills. The Junior Engineer Surendra Tripathi was demanding Rs. 500/- as illegal gratification for facilitating the payment, with the result that Sumiran Singh PW 1 got him trapped at Hardoi on 6-11-79. Surendra Tripaihi was arrested red handed and he was subsequently convicted. A few days after that Sumiran Singh PW 1 was asked by the Appellant to meet him at Lucknow for getting payment of the bills. 3. Sumiran Singh PW 1 met the Appellant in his office at Lucknow on 19-11-79 when the Appellant demanded a sum of Rs. 1000/- as illegal gratification for passing his bill and for expediting payments. Sumiran Singh PW 1 assured him that he would pay that amount of Rs. 1000/- on 20-11-79 and he approached the Officers of Anti-Corruption Department at Jawahar Bhawan Lucknow through the Inspector Jagdamba Prasad PW 3. As stated by them, he met them on 20-11-79 at about 10 A.M. and moved an application Ex. Ka. 1 to the D.I.G. Anti-Corruption Department who ordered the Inspector Jagdamba Prasad Misra PW 3 to organise the trap. Jagdamba Prasad PW 3 recorded the statement Ex. As stated by them, he met them on 20-11-79 at about 10 A.M. and moved an application Ex. Ka. 1 to the D.I.G. Anti-Corruption Department who ordered the Inspector Jagdamba Prasad Misra PW 3 to organise the trap. Jagdamba Prasad PW 3 recorded the statement Ex. Ka 3 of the complainant and affixed his initials on the currency notes, treated them with phenalphthalein powder and noted down their numbers in the memo Ex. Ka 2 whereafter he returned those notes to the complainant for handing them over to the Appellant. 4. Sumiran Singh PW 1 Inspector Jagdamba Prasad PW 3 alongwith independent witness Sabir Husain PW 2 and other members of the trapping party took their position in the office of the Appellant on 20-11-79 at about 4-30 P.M. The Appellant reached there in a rickshaw at about 4-45 P.M. and enquired from Sumiran Singh PW 1 about the money. Sumiran Singh PW 1 assured him that he would pay the money and then the Appellant went up stairs followed by Sumiran Singh PW 1 and the other trapping party. The Appellant told the complainant there that the money will be paid to him and his work will be done within three or four days. Sumiran Singh PW 1 handed over to the Appellant ten currency notes of the denomination of Rs. 100/- each; the Appellant held them in his right hand, counted them and kept them in a white envelop. Inspector Jagdamba Prasad PW 3 and others witnessed this transaction. The Appellant kept that envelop containing the ten currency notes on his table and Inspector Jagdamba Prasad PW 3 approached him, disclosed before him his identity and enquired that whether the envelop kept on the table belonged to the Appellant who admitted that it belonged to him. The envelop was taken into custody and it was found to have contained the same currency notes which were initialled by the said Inspector. The hands of the Appellant were got washed in a solution of sodium carbonate which liquid turned into pink colour. This solution was kept in a sealed phial and recovery memo was prepared in the presence of the witnesses. The recovered currency notes were also kept in the sealed bundle and the Appellant was taken into Police Station Naka Hindola, Lucknow where first information report Ex. Ka. 1 was written. This solution was kept in a sealed phial and recovery memo was prepared in the presence of the witnesses. The recovered currency notes were also kept in the sealed bundle and the Appellant was taken into Police Station Naka Hindola, Lucknow where first information report Ex. Ka. 1 was written. On the same day at 7.05 P.M. on which basis the case was registered against the Appellant in general diary vide copy Ex Ka 6. The case was investigated, the report of the Chemical Examiner was obtained, sanction for prosecution was also obtained and after completing the investigation the investigating Officer submitted charge-shett Ex. Ka. 11 on 26-3-81. 5. The prosecution examined in all nine witnesses whose statements may be classified as follows: Sumiran Singh PW 1 is the complainant; Sabir Husain PW 2 is an independent witness of trap; Jagdamba Prasad PW 3 is the Inspector who laid the trap; Pravin Kumar PW 4 is a Constable and a formal witness; Mahendra Pratap Singh PW 5 has been a Clerk of the PWD; vijai Naresh Mittal PW 6 has been the Executive Engineer of PWD; Sabir Ali Khan PW 7 has been a Secretary of Mahila Sangh who collected some donations; Head Constable Daya Shankar Gupta PW 8 has been a formal witness; Inspector Bhagwan Din PW 9 has been the Investigating Officer. 6. The accused pleaded not guilty and claimed to have been falsely implicated, He stated that some lawful deductions were being made in the bills of Sumiran Singh PW 1 who felt aggrieved and expressed his displeasure on 10-11-79 and went away giving threats that he would settle with the Appellant; the Appellant was going to participate in a farewell party of his colleague Sri. Misra on 20-11-79 in the office along with Vijay Naresh Mittal PW 6 that some persons arrived there and carried him to the police station on the pretext that he was to be interrogated, the C.I.D. people were friendly to Sumiran Singh PW 1 and that the C.I.D. people in collusion with the complainant Sumiran Singh implicated the Appellant. 7. The Appellant did not lead any evidence in defence. The learned lower Court believed the prosecution case and convicted and sentenced the Appellant as aforesaid. It is not disputed that the Appellant was posted as Assistant Engineer and he was incharge of the works of district Hardoi also. 7. The Appellant did not lead any evidence in defence. The learned lower Court believed the prosecution case and convicted and sentenced the Appellant as aforesaid. It is not disputed that the Appellant was posted as Assistant Engineer and he was incharge of the works of district Hardoi also. The complainant Sumiran Singh PW 1 did some repair work and his two bills were outstanding payment. The bills were to be passed by the Junior Engineer Surendra Tripathi who was nabbed redhanded while accepting an amount of Rs. 500/- as bribe. Sumiran Singh PW 1 met the Appellant in his office on 19-11-79 in connection with his pending bills. 8. The learned lower Court decided this case more on surmises and conjectures rather than the facts finding place on the record. The prosecution story, from the record, is proved to be a mere concoction. 9. Sumiran Singh PW 1 first approached the Inspector Jagdamba Prasad PW 3 who was deputed to lay the trap on the basis of the application Ex. Ka 1. Inspector Jagdamba Prasad PW 3 claimed to have initialled the currency notes and to have applied the phenal phthalein powder on those notes which were to be passed to the Appellant but he did not care to wash his own hands after applying the phenal-phthalein powder on those currency notes and to have kept that solution in a sealed phial, so that the opinion of the Chemical Examiner may be obtained on the point that the solution, which was prepared at the time of applying the phenal-phthalein tallied with the solution which was prepared after the recovery of those currency notes. Inspector Jagdamba Prasad PW 3 admitted that he was acquainted with Sumiran Singh PW 1 since prior to 19-11-79. Sumiran Singh PW 1 first approached this very Inspector for planning to trap him. All this gives support to the contention of the Appellant that both of them were colluding with each other. Then, this Jagdamba Prasad PW 3 stated that he did not consider it necessary to procure respectable witnesses to witness the process of trapping. Sumiran Singh PW 1 first approached this very Inspector for planning to trap him. All this gives support to the contention of the Appellant that both of them were colluding with each other. Then, this Jagdamba Prasad PW 3 stated that he did not consider it necessary to procure respectable witnesses to witness the process of trapping. He, denied to have met Sabir Husain PW 2 earlier than 20-11-79 which statement is self-contradictory because in his statement u/s 161 Code of Criminal Procedure he had stated that Sabir Husain PW 2 had met him on 19-11-79- He could not give any reason as to why this was so recorded in his statement u/s 161 Code of Criminal Procedure. In case his statement is believed or disbelieved it is certain that either the Investigating Officer wrote down a false statement u/s 161 Code of Criminal Procedure or this Jagdamba Prasad PW 3 was stating a-lie. 10. The prosecution case has been that Inspector Jagdamba Prasad PW 3 first disclosed his identity to the Appellant and then enquired from him that if the envelop kept on the table and containing currency notes belonged to the Appellant and thereafter he took that envelop in his custody and arrested the Appellant. This is a cock and bull story. The Appellant was an educated person and was working as an Assistant Engineer. If the prosecution story is true, the Appellant knew that the envelop referred to, contained currency notes which he had accepted as illegal gratification, and on knowing the identity of Inspector Jagdamba Prasad PW 3 he was not expected to have owned that envelop. 11. The envelop containing the currency notes of bribe is alleged to have been handed over to the Appellant at a distance of at least 20 steps from the place where it was recovered. According to the prosecution case it was kept there after counting the currency notes which were kept in it. Inspector Jagdamba Prasad PW 3 did not give any satisfactory explanation for not nabbing the Appellant when he accepted those currency notes or when he was counting them as he stated that he did not nab him earlier because the entire office was surrounded by the police. 12. Inspector Jagdamba Prasad PW 3 did not give any satisfactory explanation for not nabbing the Appellant when he accepted those currency notes or when he was counting them as he stated that he did not nab him earlier because the entire office was surrounded by the police. 12. Sumiran Singh PW 1 claimed that as between him and Inspector Jagdamba Prasad PW 3 any place and time of trapping the Appellant was not fixed; but Inspector Jagdamba Prasad PW 3 stated that Jawahar Bhawan was settled as the place of the occurrence and the office of the PWD and even time were fixed by him. Still he did not procure any witness of that office. 13. The prosecution yet suffers from another serious lacuna. It has no where been proved that Inspector Jagdamba Prasad PW 3 had taken the search of the person of the witnesses and had given search of his person to them in order to establish that none of them was in possession of any incriminating currency notes and that there was no chance for falsely showing the recovery and implicating the Appellant. 14. The only independent witness in this case was Sabir Husain PW 2 who did not support the prosecution case. 14. The only independent witness in this case was Sabir Husain PW 2 who did not support the prosecution case. He stated that Sumiran Singh PW 1 asked the Appellant to get his work done upon which the Appellant made calculations and told him the account He further stated that when the Appellant arrived in his office, Sumiran Singh PW 1 rubbed his hand on the envelop containing powdered currency notes and when the witness enquired from him as to why he was doing so Sumiran Singh PW 1 replied that the Appellant did not demand money and his face would be blackened here also and there also; Sumiran Singh PW 1 and the Appellant then went away in another room while others remained outside; Sumiran Singh PW 1 called the Inspector inside the room after about 12 minutes when they went inside the room and Sumiran Singh PW 1 pointed out towards the Appellant who was sitting on a chair that this was the person; the Inspector overpowered the Appellant from behind him and took away the envelop from over the table and enquired from him as to whom this envelop belonged; from there all others went inside the room while the witness remained standing outside; the witness was again called inside after about an hour and Sumiran Singh PW 1 asked him to sign a paper; and that the Appellant had told Sumiran Singh PW 1 that in case he considered that the amount of bills was not correct it would be seen on the next day. He further stated that the Appellant never demanded any money as bribe from Sumiran Singh PW 1 in his presence nor any such amount was recovered from possession of the Appellant; Sumiran Singh PW 1 kept his hand on the envelop and said that it was the very envelop; the Inspector then placed his hand on that envelop and enquired as to whom it belonged; and that Sumiran Singh PW 1 had told him that he had kept currency notes in that envelop. He further stated that he had not brought any person named Mubarak with him which statement is contradicted by Sumiran Singh PW 1. He further stated that he had not brought any person named Mubarak with him which statement is contradicted by Sumiran Singh PW 1. In any case the statement of Sabir Husain PW 2 clearly establishes that neither the applicant had demanded any money as bribe from Sumiran Singh PW 1 nor any such recovery of money had taken place from his possession. This Sabir Husain PW2 was not treated hostile by the prosecution. It was after a long period that an application for treating him hostile was moved and the same was rightly rejected by the learned lower Court. Since he was not treated hostile the prosecution relied on his statement and it should have been believed. 15. Sumiran Singh PW 1 claimed to have given some contribution against receipt Ex. 1. Mahendra Pratap Singh PW 5 proved to have written that receipt Ex. 1 and stated that it was not written on 19-11-79 but it was written two or three days earlier. This shows that Sumiran Singh PW 1 has been in Lucknow not only on 19-11-79 but two or three days earlier also, then this witness stated that Sumiran Singh PW 1 on 19-11-79 looked into his bills and got annoyed, and approached the Appellant under irritation and went away saying that .he would settle with him. This statement shows that Sumiran Singh PW 1 was annoyed with the Appellant and he was out to get him into trouble. About receipt Ex. 1 he stated that it was given to some other Thekedar and not to Sumiran Singh PW 1. 16. Vijai Naresh Mittal PW 6 has been an Executive Engineer who stated that a party was arranged on 20-11-79 and some persons claiming to be the Officers of Anti-Corruption Department approached the "Appellant and took him away from there. This witness also does not support the prosecution case and rather his statement gives strength to the defence case that the Appellant was going to attend a party when he was taken to the police station. 17. Sumiran Singh PW 1 was annoyed with the Appellant and he wanted to torture him. This is why he manipulated the trap of the Appellant. The office of the Appellant was on the ground floor. There was no occasion for the Appellant to go up-stairs. 17. Sumiran Singh PW 1 was annoyed with the Appellant and he wanted to torture him. This is why he manipulated the trap of the Appellant. The office of the Appellant was on the ground floor. There was no occasion for the Appellant to go up-stairs. He stated that the Appellant kept the envelop on a table in the verandah and sat there when the two Inspectors came and disclosed their identity. About the description of the receipt Ex. 1 he stated that he had paid a sum of Rs. 51/- on 19-11-79 which statement is in contradiction of his statement given by Mahendra Pratap Singh PW 5. Sumiran Singh PW 1 admitted that he was to finish the repairing work of two rollers within a fixed time and he was not able to finish the same within the fixed time. He further admitted that the deductions in his bills were done by the Junior Engineer Surendra Tripathi and that one of the items for deductions was with unpaid old parts of one roller which were left with him and their price was being deducted. So if some deduc- tions were being made from the amount of his bill there was every justification for the same but Sumer Singh PW 1 did not like it. His statement is self- contradictory on point of the date of his knowledge about the alterations in the bills. He claimed that he was not acquainted with any one else except Sabir Husain PW 2 and this is why he took him with him on every occasion. He himself admitted that he was worried because he wanted the payment of his bills at the earliest. He further admitted that Sabir Husain PW 2 on 19-11-79 remained outside the office and that he talked to the Appellant on the ground floor in his office. So the prosecution case that the amount bribery was demanded by the Appellant in presence of Sabir is not consistent with the statement of Sumer Singh PW 1 himself. Sumer Singh PW 1 claimed that the Appellant had demanded the illegal gratification from him on 19-11-1979 but he could not give any reason as to why he did not make a mention of this fact in his application dated 20-11-1979. Sumer Singh PW 1 claimed that the Appellant had demanded the illegal gratification from him on 19-11-1979 but he could not give any reason as to why he did not make a mention of this fact in his application dated 20-11-1979. About Inspector Jagdamba Prasad PW 3 he stated that the Inspector had not seen the seat of the Appellant in his office, earlier than in the morning of 20-11-79 while Inspector Jagdamba Prasad PW 3 stated that he has been there at about 4.30 P.M. Sumer Singh PW 1 further contradicted Mahendra Pratap PW 5 by stating that the receipt Ex. 1 was given to him by a Clerk. He admitted that he was not the proprietor of Asam Engineering Works when this receipt Ex. 1 was issued which showed that this receipt Ex. 1 must not have been issued to him. Sumer Singh PW 1 further admitted that the recovered currency notes were kept in sealed bundle before the memo was prepared and that the hands of the Appellant were got washed after about half an hour of the recovery. All this shows that Sumer Singh PW 1 has been a liar and he was annoyed with the Appellant and this is why he manipulated the trapping of the Appellant while the process of trapping was a farce. 18. Inspector Jagdamba Prasad PW 3 did not take all the precautions before laying the trap. It appears that he was in a hurry to somehow or the other implicate the Appellant. He did not even record the number of currency notes which were to be passed to the Appellant, in the recovery memo Ex. Ka-2 Only a few days before the occurrence in question the Junior Engineer Surendra Tripathi was trapped in connection with the payment of these very bills and it does not stand to reason that the Appellant would insist upon Sumer Singh PW 1 to pay an illegal gratification for payment of the amount of those bills. In any case he cannot be believed to have owned the envelop containing those currency notes after he knew about the Inspector Jagdamba Prasad PW 3. It seems that Sumer Singh PW 1 adopted vindictive steps as some objections were raised in his bills and he falsely implicated the Appellant. Therefore, this appeal succeeds. 19. In any case he cannot be believed to have owned the envelop containing those currency notes after he knew about the Inspector Jagdamba Prasad PW 3. It seems that Sumer Singh PW 1 adopted vindictive steps as some objections were raised in his bills and he falsely implicated the Appellant. Therefore, this appeal succeeds. 19. This appeal is allowed and the judgment and order, passed by the learned lower Court against the Appellant Santosh Kumar, are set aside. The Appellant is acquitted of the charges, levelled against him. 20. The Appellant is on bail; his bail bonds are discharged and he need not surrender to the same. The amount of fine, if realised from the Appellant, shall be refunded to him.