JUDGMENT 1. - This criminal appeal is directed against the judgment dated 31-3-1980 passed by Special Judge (C.B.I. Cases) Rajasthan, Jaipur, whereby the accused appellant has been found guilty for the offence under section 161 IPC and section 5 (1) (d) (2) Prevention of Corruption Act and sentences has been passed on both the Court against the accused appellant. 2. Brief facts giving rise to this appeal are that one Shri Nathu Lal points man Western Railway Sawai Madhopur lodged an oral report to the Inspector C.B.I. on 7-1-77 alleging therein that on 6-1-77 he joined his duty at 6 P.M. and completed it in the night at 2 P.M. When after completing his duty hours he was going towards his house from near Excise Office, Heera Lal Sanik (accused appellant) R.P.F. of Sawai Madhopur met him. At the time, he (informant) was having a bag of coal in his hand. The coal was purchased by him previous evening. Heera Lal checked his bag and told him that he had stolen railway coal and wanted to take him to the R. P. F. outpost. The informant told she appellant that the coal possessed by him is purchased by him and a receipt of the same was shown to the appellant but the appellant did not agree to it and demanded Rs. 50/- as bribe otherwise he threatened to get a theft case to be registered against him. At that time he was having Rs. 10/-. The accused appellant on being persuade agreed to accept Rs. 40/- out of which Rs. 10/- were given to the appellant and the informant agreed to pay Rs. 30/- on 8.1.77. Thereafter the informant was set free by the accused appellant, it has further been alleged that the informant did not want to pay the bribe. So, he visited the office of the Superintendent of Police (C. B. I.) Jaipur on 7.1.77 and contracted Om Prakash Agarwal (PW 3) Inspector (C. B. I.) and narrated the above story to him. Shri Om Prakash informed the Superintendent of Police about it who directed him to take necessary legal action and also deputed Sunder Lal Inspector, Kalyan Joshi Sub-Inspector and Banshi Lal Constable to assist Om Prakash Agarwal (PW 3). Shri Om Prakash Agarwal directed Nathu Lal to talk him on 8.1.77 at about 9 a. m. at the P. W. D. Rest House, Sawai Madhopur. Shri Om Prakash Agarwal directed Nathu Lal to talk him on 8.1.77 at about 9 a. m. at the P. W. D. Rest House, Sawai Madhopur. Shri Om Prakash Agarwal accompanied by the said associates of C. B. I. reached Sawai Madhopur in the morning on 8.1.77. They were contacted by Nathu Lal (PW 1) at the said Rest House at given time. Shri Agarwal then directed Nathu Lal to once again contact the accused to ascertain as to whether he was still insisting for his demand of bribe and to report back with the G. C. notes of Rs. 30/-, in case, the accused was still demanding the same. G. K. Garg (PW 2) and Rajrishi Gujar (PW 10) were called as Motbirs. At about 1 p. m. Nathu Lal again contacted Shri Agarwal and at that time Nathu Lal's verbal report was reduced into writing by Kalyan Joshi, at the instance of Om Prakash Agarwal and the same is marked as Ex. P 2. Currency notes (article 2 to 4 of the denomination) of Rs. 20/- and two of Rs. 5/- were given to Shri Agarwal by Shri Nathu Lal necessary formalities were observed by Shri Agarwal for the trap and instructions were also given to the informant as well as the other witnesses who were present there at the relevant time. 3. The case of the prosecution further is that Nathu Lal contacted the accused at the Broad Gauge (B. G.) platform. From there, both of them reached at Tea Stall situated at the Meter Gauge (M. G.) platform near the 1st Class Waiting Room, at about 4 p. m. After taking tea, they both left the Tea Stall at 4.30 p.m. and went towards the exit gate of Meter Gauge (M. G.) platform and after walking a few steps the accused demanded the amount of bribe which Nathu Lal had confirmed to have been brought by him as per his promise. On being demanded Nathu Lal took out the said tainted G. C. notes of Rs. 30/- and passed on to the accused who accepted the same and held the same in the grip of his left palm. It is again alleged that above members of the raiding party and the Motbirs were also watching the transaction from their hereby positions. After payment of such amount Nathu Lal lighted Bidi in token of the pre-arranged signal. 30/- and passed on to the accused who accepted the same and held the same in the grip of his left palm. It is again alleged that above members of the raiding party and the Motbirs were also watching the transaction from their hereby positions. After payment of such amount Nathu Lal lighted Bidi in token of the pre-arranged signal. On receiving the signal the members of the raiding party reached near the accused. Shri Agarwal immediately, after introducing himself and his party challenged the accused who become nervous and he then threw the G. C. notes which were held by him in his palm to the ground. The G. C. notes were lifted by Shri Banshi Lal Constable because the accused refused to pick out the G. C. notes. On being apprehended the glass of water was arranged, the accused was asked to dip his finger of his hands into the solution of water prepared by Shri Agarwal. The accused reluctantly did so and as a result of it, the colour of such solution turned into pink from white. The samples of the solution were also taken by Shri Agarwal, after observing necessary formalities. It is further alleged shat the accused at the first instance confessed about the acceptance of bribe but subsequently represented that this amount was accepted by him as a repayment of loan previously advanced to Nathu Lal (informant), Shri Agarwal prepared the raid report (Ex. P 10) on the basis of which, S. P. CBI registered a case under the aforesaid sections of law and entrusted its investigation to Dinesh Kumar (PW 13). During the course of investigation, a report (Ex. P 17) was received from the Public Analysist and Chemical Examiner, Jaipur which was positive in nature. After completion to investigation the sanction (Ex. P 13) was taken for the prosecution of the accused and a charge-sheet was filed against the accused appellant after the completion of the investigation. 4. The accused was charged for the offence for which he has been found guilty. The accused appellant denied the charges and claimed to be tried. 5. The prosecution examined as many as 13 witnesses and statement of the accused appellant was recorded under section 313 Cr. P.C. wherein the accused appellant denied the charges levelled against him. 4. The accused was charged for the offence for which he has been found guilty. The accused appellant denied the charges and claimed to be tried. 5. The prosecution examined as many as 13 witnesses and statement of the accused appellant was recorded under section 313 Cr. P.C. wherein the accused appellant denied the charges levelled against him. He further stated that he neither checked nor met the informant in the night intervening 6th and 7th January, 1979 or that he had demanded or accepted any bribe, as alleged by the prosecution. He maintained that two or three months prior to the occurrence. He had been, required by Nathu Lal (PW 1) to stand as a surety for payment of Rs. 30/- as cost of the cloth, he (informant) purchased on credit from Damodar Lal who was running the shop of cloth at the relevant time in the Bajoriya of Sawai Madhopur. The informant was detained by Shri Damodar Lal on his failure to make payment of the said amount and at that time, the accused appellant stood surety for the informant and thereupon the informant was set free by Shri Damodar Lal. The accused further stated that he undertook to pay such amount to Damodar in case Nathu Lal failed to do so. He further stated that Damodar happened to meet him after two or three days of such incident and asked for payment, upon which he paid Rs. 30/- to Damodar. In the next month at the time of payment of salary, he asked Nathu Lal to pay Rs. 30/- to him which were not paid by him to Damodar as he had paid the amount to Damodar on his demand. The informant refused to pay Rs. 30/- in one instalment but agree to pay the same in instalment of Rs. 10/- each to which the appellant refused on which some hot words were exchanged between the appellant and Nathu Lal. After about 10 to 15 days Nathu Lal approached him and had represented that he would be paying full amount, after receiving the pay in the month of January, 1977 and subsequently the said amount of Rs. 10/- each to which the appellant refused on which some hot words were exchanged between the appellant and Nathu Lal. After about 10 to 15 days Nathu Lal approached him and had represented that he would be paying full amount, after receiving the pay in the month of January, 1977 and subsequently the said amount of Rs. 30/- was paid by the informant to the appellant at the Railway Station of Sawai Madhopur, but as and when he was in the process of accepting such amount, he was apprehended by 5 to 7 persons, and he could not accept such G.C. notes which fell on the ground. He further stated that he has been falsely implicated at the instance of the informant and a false charge is levelled against him. The accused examined 4 witnesses in support of his statement. 6. The learned trial Court after hearing the parties found the accused appellant guilty and passed sentences against him. 7. Heard the learned counsel for the parties and perused the entire record. 8. It has been contended by the learned counsel for the appellant that in the instant case the prosecution has miserably failed to prove the guilt against the accused appellant and the learned trial Court was not justified in rejected the defence taken by the accused in this case. In the cases like the present one, the prosecution is bound to prove the demand and acceptance of bribe. In the present case Nathu Lal is the only witness who has stated that demand was made by the accused and he accepted the bribe on the relevant date. The learned trial Court in its judgment has also observed that the conversation in between the informant and the accused about the demand and accepts of bribe was not heard by any of the prosecution witnesses. 9. Learned counsel further contended that it is an admitted case of the prosecution that the informant went to Jaipur on 7.1.77 and gave a verbal report to Shri Agarwal. It is thus clear that the prosecution with held the first information which was given on 7.1.77 by the informant at Jaipur and the report Ex. P 2 can never be treated as first information but this is a sort of statement under section 161 Cr. It is thus clear that the prosecution with held the first information which was given on 7.1.77 by the informant at Jaipur and the report Ex. P 2 can never be treated as first information but this is a sort of statement under section 161 Cr. P.C. because on receiving the verbal report, Shri Agarwal admittedly left the head-quarter and went to Sawai Madhopur in order to give raid. The accused's learned counsel therefore, contended that in this case the original report is missing and this is a case having no first information. Thus, the whole case of the prosecution should be held as having no foundation. 10. Learned Public Prosecutor, on the other hand, contended that the learned trial Court was justified in convicting the accused. He further contended that in the instant case acceptance of the G.C. notes is admitted and the same were recovered by Shri Agarwal on the spot. In this view of the matter, this is a fit case where a presumption under section 4 or of the Prevention of Corruption Act has been rightly drawn by the learned trial Court. 11. I have considered the points raised by both the learned counsel and gone through the entire record. 12. It is settled law that recovery of notes alone is not sufficient to prove charge under section 5 (1) (d) read with section 5 (2) of the Act or section 161 IPC. It is necessary for the prosecution to prove that the accused accepted the money voluntarily or with consenting mind and that the money was not legal remuneration or legal payment for the above observations. I find support from the case Suraj Mal v. State (Delhi Administration), 1981 CAR page 30 (SC) , wherein it has been observed : "In our opinion, mere recovery of 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. Moreover, the appellant in his statement under section 342 has denied the recovery of the money and has stated that he had been falsely implicated. Moreover, the appellant in his statement under section 342 has denied the recovery of the money and has stated that he had been falsely implicated. Thus mere recovery by its cannot prove the charge of the prosecution against the appellant, in the absence of any evidence to prove payment of bribe or to show that the appellant voluntarily accepted the money." It is thus clear that the prosecution must prove beyond reasonable doubt that the accused had committed the offence with the requisite mensrea; and the burden of proving that always rests on the prosecution from the beginning to the end of the trial. In Banshi Lal Yadav v. State of Bihar, AIR 1981 SC 1235 . Their Lordships of the Supreme Court observed as under : "Before presumption can be raised, the burden is on the prosecution to prove that the accused has accepted or obtained, or has agreed to accept or attempted to obtain, for himself any gratification other than legal remuneration etc. If the accused when examined under S. 313 of the Code of Criminal Procedure with reference to the circumstances appearing against him in evidence, only stated that currency notes were thrust in his pocket, that statement by itself without anything more is not sufficient to satisfy the necessary ingredients of Section 4(1) that accused accepted or obtained or has agreed to accept or attempted to obtain, any gratification other than legal remuneration so as to be able to raise the presumption. Acceptance or obtaining, or voluntary act. In the statement of the accused, this element of voluntary acceptance is missing. Therefore, the statement of the accused by itself in the facts and circumstances of this case and especially the language used cannot provide the necessary factual basis or fact situation which must exist before presumption can be raised. In fact accused denied having accepted bribe and stated that he was the victim of malevolent act of Naushad in thrusting marked currency notes in his pocket. In fact accused denied having accepted bribe and stated that he was the victim of malevolent act of Naushad in thrusting marked currency notes in his pocket. This statement will not show acceptance of illegal gratification and the High Court was in error in raising the presumption under section 4." However it is not necessary to discuss all other cases because as laid down in the case of Banshi Lal Yadav v. State of Bihar (supra) the burden always lies on the prosecution and even if it is found that the accused is in receipt of money, then it is further necessary that the prosecution should show that it was voluntary and conscious act on the part of the accused. Again in those cases, if has been held that presumption cannot be raised under section 4 of the Act where plausible explanation comes from the side of the accused which cannot be termed to be false and fabricated altogether and can safely be placed in the jacket of reasonable and plausible explanation and then the accused and the accused alone can get benefit of doubt. 13. In view of the aforesaid observations, now it is to be seen as to whether the prosecution have successfully proved the fact of demand and the acceptance of bribe by the accused and for that purpose evidence is to be scrutinised which I will discuss in the latter part of this judgment. 14. As said earlier that in the instant case, the informant went to Jaipur on 7-1-77 and contacted Om Prakash Agarwal (PW 3) Inspector (C.B.I.) and narrated him the whole story as is disclosed in the report (Ex. P 2) written by Kalyan Joshi, and on receiving the said information, Shri Agarwal informed the Superintendent of Police about the said information who, in tern, directed him to take necessary legal action and also deputed some C. B. I. employees to oasis Shri Agarwal. Shri Agarwal also directed the informant to contact him on 8-1-77 at about 9 a.m. at the PWD Rest House. Shri Agarwal accompanied with other C.B.I. employees, then reached to Sawai Madhopur on 8-1-77 and contacted with the informant and arranged a trap and at that point of time, he received Ex. P 2 which is claimed to be first information report in this case. 15. First Information Report is an important piece of evidence. Shri Agarwal accompanied with other C.B.I. employees, then reached to Sawai Madhopur on 8-1-77 and contacted with the informant and arranged a trap and at that point of time, he received Ex. P 2 which is claimed to be first information report in this case. 15. First Information Report is an important piece of evidence. It is a statement made soon after the incident, hence the memory of informant is fresh and it is also unlikely that he had opportunities of fabrication. It is the basis of the case; he puts the police in action; it represents the case set up by the informant at that time. If the first information were to be recorded after an inquiry into the offence is conducted, there would be great temptation to incorporate in it the details and circumstances advantageous to the prosecution which may be lacking in the earliest information. The Courts have always viewed the information with grave suspicion when there has been delay in giving it. The delay in lodging the FIR quite often results in embellishment which is a creature of after thought. People very often try to foist crimes on the personal enemies of the informant after consultation with other people. A report lodged immediately after the crimes has greater chances of being true. Where there is no satisfactory explanation for delay, it is fatal to the prosecution. The prosecution is bound by practice to produce in court the first information, being the earliest version of the incident it has always to be placed before the judge in order to judge the truth or falsity of the case, and it has been held that the failure to record such statement or the non-production of the information has very serious consequences as it prejudices the accused depriving him the right of cross-examination. As the word (first) indicates first information is that information which is given first in point of time upon which the investigation is commenced by the police. The object of lying the information to the police is to set the law in motion. As a matter of fact all statements relating to the incident of a cognizable offence made to the police before the commencement of investigation can very well be designated as first information reports. The object of lying the information to the police is to set the law in motion. As a matter of fact all statements relating to the incident of a cognizable offence made to the police before the commencement of investigation can very well be designated as first information reports. Ail statements recorded subsequent to the starting of investigation fall under section 162 Cr.P.C. Section 154 of Cr.P.C. imposes duty upon the police officer to record the information given to him. It is in the interest of the public that the statement should be recorded truly. It would always be safe to record the report in the language in which it is made. The police officer is bound to record the information at once. A statement recorded after a great delay is no first information. 16. As said earlier in the present case, the information was given by Nathu Lal (PW 1) to Shri Agarwal on 7-1-77 at Jaipur and after receiving that information, Shri Agarwal accompanied with other C. B. I. employees reached at Sawai Madhopur but no record is available to arrive to this conclusion that the above facts as alleged by the prosecution are true. Shri Agarwal in his statement before the trial Court failed to give any reason or explanation as to why he did not record the information which was given to him verbally by Shri Nathu Lal. I again failed to understand as to how Shri Agarwal and the other employees of C. B. I, left the head-quarter without recording the information or without registering the case against the accused. All these facts goes to show that real facts are being concealed by the prosecution and that by itself is sufficient to create doubt, in the prosecution story and it cannot be ruled out that after withholding the first information the investigation agency has planted Ex. P. 2 wherein the facts may be different to the earlier information which was given orally to Shri Agarwal by the informant otherwise there was no reason to with held that information. This assumption is strengthened by this circumstance that the informant made improvements. In his statement before the trial Court by saying that the coal was purchased by him from Gafoor Khan (PW 9) because this fact has not been disclosed by the informant in his report Ex. P 2. This assumption is strengthened by this circumstance that the informant made improvements. In his statement before the trial Court by saying that the coal was purchased by him from Gafoor Khan (PW 9) because this fact has not been disclosed by the informant in his report Ex. P 2. Dal Chand (PW 5) has been produced to show that the bag of coal was kept by the informant at his residence before joining the duty and the bag was thereafter taken by the informant from the residence of Lal Chand (PW 5). These facts stated by Nathu Lal (PW 1) do not find place in Ex. P 2. This also shows that the informant made improvements at the stage of investigation and tried to plan additional evidence to support his allegation against the accused. In view of these improvements the conduct of Nathu Lal (PW 1) become suspicious and it cannot be ruled out that Nathu Lal (PW 1) tried to concoct the case against the accused by planting the evidence of Dal Chand (PW 5) and Gafoor Khan (PW 9). In view of the foregoing discussion. I am of the opinion that Ex. P 2 can never be treated as a first information of this case it is a sort of statement under section 161 Cr. P. C. because after getting the information at Jaipur, Shri Agarwal left the head-quarter and reached at Sawai Madhopur and started investigation in the case, and Ex. P 2 was written at the instance of Shri Agarwal by Shri K. S. Joshi SI as is clear from the statement of Shri Agarwal. It is thus clear that Ex. P 2 was written at his instance and the note of C to D of Ex. P 2 also shows the same. Aforesaid circumstances, therefore are sufficient to observe that the prosecution case is without any foundation, and that the prosecution specially the investigation officer purposely withheld the important pieces of evidence. The learned trial Court completely ignored this important circumstance while deciding the case. 17. The case of the prosecution is that at the relevant time the informant was having a bag of coal and the accused appellant intercepted him and alleged that the coal is stolen by the informant. In Ex. The learned trial Court completely ignored this important circumstance while deciding the case. 17. The case of the prosecution is that at the relevant time the informant was having a bag of coal and the accused appellant intercepted him and alleged that the coal is stolen by the informant. In Ex. P 2, it has been stated that the informant told the accused at that time that coal is purchased by him and he showed the receipt but the accused did not agree to him and thereby demanded Rs. 50/- as bribe and subsequently the matter was settled between them for Rs. 40/- out of which Rs. 10/- was paid to the accused at that time. There is no corroboration of this part of the statement of Nathu Lal (PW 1) by any direct evidence. Two of the witnesses have been produced by the prosecution in order to show a circumstance in support of the above allegation and they are Dal Chand (PW5) and Gafoor Khan (PW 9). 18. As said earlier that the names of these two witnesses are missing from Ex. P 2 and the fact disclosed by Dal Chand has not at all been mentioned in Ex. P 2. Under these circumstances the testimony of Dal Chand (PW 5) cannot be accepted and it can be said that he is a made up witness and the facts disclosed by him is an improvement in the prosecution story. Similar is the case of Gafoor Khan who has not been named in Ex. P 2. After going through the entire statement of Gafoor Khan it becomes doubtful that the coal was purchased from his shop, his statement becomes doubtful due to the issuance of receipt Ex. P 1. On the basis of Ex. P. 1 it has been claimed that the coal was purchased by the informant from Gafoor Khan. This receipt has not been produced by the informant at the time when he gave oral information at Jaipur on 7.1.77 and even at the time when Ex. P 2 was given to Shri Agarwal. Although Nathu Lal (PW 1), in his statement has stated that recept Ex. P 1 was produced by him to Shri Agarwal at the earliest time but Shri Agarwal, in his statement has stated that this receipt was given during the course of investigation that too after so many days. P 2 was given to Shri Agarwal. Although Nathu Lal (PW 1), in his statement has stated that recept Ex. P 1 was produced by him to Shri Agarwal at the earliest time but Shri Agarwal, in his statement has stated that this receipt was given during the course of investigation that too after so many days. Shri Agarwal deposed that Ex. P 1 was not shown to him either at Jaipur or at the time when Ex. P 2 was given to him. No explanation is forth coming from the side of prosecution as to why Ex. P 1 was not produced at the earliest time. This is a circumstance which makes Ex. P 1 as doubtful. The other circumstance to doubt in the execution of Ex. P 1 is that Gafoor Khan (PW 9) in his statement deposed that he is selling the coal from years together and he never issued any receipts, during his life time except receipt Ex. P 1. This statement of Gafoor Khan (PW 9) also makes the case of the prosecution doubtful in respect of the issuance of the receipt Ex. P1, when Gafoor Khan was not having the receipt books, then what was the necessity for this witness to have issued Ex. P 1 and that too for the goods of having a small value. In view of these circumstances purchase of coal by the informant from Gafoor Khan (PW 9) becomes doubtful and in these circumstances it can be held that no coal was purchased from the shop of Gafoor Khan (PW 9) by Nathu Lal (PW 1), when the fact of purchasing the coal goes away then whole of the case of the prosecution becomes false because when at the relevant time Nathu Lal (PW 1) was not having any coal then no question of demanding the bribe arises. 19. It was the case of the prosecution that at the relevant date and time, the accused appellant demanded the bribe and the matter was settled for Rs. 40/- out of which Rs. 10/- were given to the accused by Nathu Lal (PW 1) and for the balance, it was decided that this amount is to be paid subsequently. It has been admitted by Nathu Lal (PW 1) that the accused appellant left the informant after getting from him the assurance of Rs. 30/- to be paid by him subsequently. 10/- were given to the accused by Nathu Lal (PW 1) and for the balance, it was decided that this amount is to be paid subsequently. It has been admitted by Nathu Lal (PW 1) that the accused appellant left the informant after getting from him the assurance of Rs. 30/- to be paid by him subsequently. It is not the case of the prosecution that the accused appellant seized the coal on the relevant date and time. It has not been stated by the complainant that the coal was not taken by him to his residence after his assurance for the payment of bribe to the accused. In view of these facts it can be assumed that the coal was taken by the informant after the said assurance and the so called stolen property was released by the accused appellant and it went out of his control. In that situation definitely the accused appellant was not in a position to initiate proceedings or get the case of theft registered against the informant because subsequently the so called stolen property was out of his reach and in case the complainant would have refused to pay the settled amount of Rs. 30/- to the accused appellant, then the accused appellant could not have done anything against the complainant and would have become halfless for that purpose. In that situation the complainant got the opportunity of refusing to pay the amount. I fail to understand that even after getting the said opportunity for the non-payment of the said amount of Rs. 30/-, the complainant took the initiative of arranging a trap against the accused-appellant. In case the version of the informant would have been correct and the accused was tempted to receive the amount of Rs. 30/- as bribe at a future date then in that situation the accused appellant should have kept the coal with himself so that he could have made a report of theft against the informant in case the bribe is not paid but no such step is alleged to have been taken by the accused appellant. This circumstance by itself is sufficient to observe that there was no basis or reason before the accused to have demanded any bribe from the informant and similarly there was no basis or reason before the complainant to have given assurance to the accused for the payment of Rs. This circumstance by itself is sufficient to observe that there was no basis or reason before the accused to have demanded any bribe from the informant and similarly there was no basis or reason before the complainant to have given assurance to the accused for the payment of Rs. 30/- as bribe. In this view of the matter the prosecution completely failed to prove one of the most important ingredient of the offence for which the accused appellant have been charged. 20. Now the only circumstance, against the accused appellant is of the recovery of the G. C. notes which have been received by Shri Agarwal from the informant for arranging the trap. 21. As said earlier, mere recovery of 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 accused appellant have given a specific explanation and has taken a defence plea by saying that he had received tainted amount and the amount so received was the amount which was given by him to Shri Damodar in the discharge of the debt of Nathu Lal. 22. The accused has examined Deepak Kumar (DW 2) and Murari Lal Sharma (DW 2) to prove that Nathu Lal (PW 1) had quarrelled with him prior to his being entrapped in regard to repayment of the amount paid by the accused to Shri Damodar. Statement of Remesh Chander (DW 4) is not of which importance. Damodar Bohra (DW 3) stated that he was running a cloth shop at Bajria, Sawai Madhopur from the year 1971 to 1976 and that he had engaged a Munim named Radhey Shyam who had in his absence sold cloth worth Rs. 45/- on 25-3-76 to Nathu Lal (PW 1) and Nathu Lal had paid Rs. 15/- in part payment of the same, while a sum of Rs. 30/- was kept outstanding. He further stated that the relevant entry of such transaction was made by Radhey Shyam in Ex. D 3 Cash-book, the relevant entry is marked Ex. A to B & C to D. He also stated that the relevant entry of Rs. 30/- being as outstanding against Nathu Lal (PW 1) had been made in Ex. D 4 (ledger). He further stated that the relevant entry of such transaction was made by Radhey Shyam in Ex. D 3 Cash-book, the relevant entry is marked Ex. A to B & C to D. He also stated that the relevant entry of Rs. 30/- being as outstanding against Nathu Lal (PW 1) had been made in Ex. D 4 (ledger). He further stated that after his released on 25-3-76 he came to know from Radhey Shyam and from the entries in the ledger a cash book maintained by Shri Radhey Shyam that a sum of Rs. 30/- was outstanding against Nathu Lal. Therefore, he also made an entry A to B in the dairy (Ex. D 5). He further stated that he had been making attempt to recover the due amount of his shop and around the month of November, 1976 while he was sitting in his said shop, Nathu Lal (PW 1) happened to pass in front of his shop whom he called and talked for the payment, Nathu Lal (PW 1) thereupon agreed to pay the amount at a future date but he (DW 3) did not believe the said version of Nathu Lal and asked Nathu Lal to keep sitting in his shop and to leave only after he had cleared off the outstanding amount of Rs. 30/-. He further stated that after about half an hour, the accused accompanied by Sahabjada (PW 8) happened to pass from the road and Nathu Lal called the accused to his shop and requested the accused either to pay Rs. 30/- to Shri Damodar or to stand a surety, for payment of such amount on this, the accused offered to stand a surety for such payment stating that in case the amount is not paid by Nathu Lal then he undertakes to make the payment. Damodar has further stated that on the aforesaid assurance he released Nathu Lal but Nathu Lal had not paid the amount to him and the said amount was paid by the accused as per his promise after demand. The learned trial Court disbelieved the said statement of Damodar, merely, on the ground that a proceeding under section 110 Cr.P.C. were pending against him. I am of the opinion that the said approach of the learned trial court was incorrect. Merely because the person was arrested under section 110 Cr. The learned trial Court disbelieved the said statement of Damodar, merely, on the ground that a proceeding under section 110 Cr.P.C. were pending against him. I am of the opinion that the said approach of the learned trial court was incorrect. Merely because the person was arrested under section 110 Cr. P. C. or under MISA, his statement should be rejected is not a good ground to reject the evidence of such person. The learned trial Court was not therefore justified to appreciate the evidence in this manner. 23. It is an admitted fact that at the time of raid, the accused disclosed that the amount of Rs. 30/- paid to him by the informant was the amount of debt which was paid to Shri Damodar. The accused appellant has taken the same defence at the close of trial and produced the defence witnesses to prove the same. The learned trial Court convicted the accused appellant on this ground also that the witnesses for the prosecution have mentioned the suspicious conduct of the accused by saying that the accused throw the tainted G. C. notes on the ground and became nervous and preplaxed but this fact has not been disclosed in Ex. P 2. G.K. Garg (PW 2), Om Prakash Agarwal (PW 3) and Shri Rajrishi Gujar (PW 10), in their statements have admitted that at the time of raid, the accused appellant has stated same facts which is subsequently made the basis by the accused of his defence. Deepak Kumar (DW 1) and Murari Lal Sharma (DW 2) have also supported the statement of the accused appellant and 1 find no reason to disbelieve their testimony. The learned trial Court was not justified in rejecting their statement on flimsy grounds. The prosecution has produced Sahabjada (PW 8) and Shri Kishan Lal (PW 12) in order to rebut the defence version. I fail to understand as to how the prosecution came to know that the statement of Sahabjada (PW 8) and Kishan Lal (PW 12) are relevant to controvert the defence version when no statement of the accused appellant mentioning the name of these two persons have been brought on record. I fail to understand as to how the prosecution came to know that the statement of Sahabjada (PW 8) and Kishan Lal (PW 12) are relevant to controvert the defence version when no statement of the accused appellant mentioning the name of these two persons have been brought on record. Production of Sahabjada (PW 8) and Kishan Lal (PW 12) as witnesses for the prosecution shows the biasness of the investigation officer production of Sahabjada (PW 8) and Kishan Lal (PW 12) further shows that during the course of investigation, it was fully known to the investigation officer that what shall be the probable defence of the accused at the trial and therefore the investigation officer also tried to destroy the defence plea and in that process he was successful to win over Sahabjada (PW 8) and Kishanlal (PW 12), who could have been the witnesses for the defence, but fortunately the investigation officer failed to prevail on Deepak Kumar (DW 1), Shri Murari Lal (DW 2) and Damodar Bohra (DW 3), and they have given statement and thereby probablise the defence version. The accused appellant disclosed a defence at the earliest time of his arrest and later on it was made substantial through documentary as well as oral evidence. 24. I feel on the material before me that the guilt of the accused has not been established beyond reasonable doubt. The result of above discussion is that this appeal succeeds and the accused is acquitted from all the charges levelled against him under section 161 IPC and under section 5 (2) read with section 5 (1) (d) of the Act as the entire prosecution story is doubtful. The accused is on bail, His bail bonds are cancelled. He need not surrender.Appeal allowed. *******