JUDGMENT S.I. Jafri 1. This appeal has been preferred by appellant Gauri Shanker hereby impugning his conviction under section 5 (2) of the Prevention of Corruption Act and sentence of 2 1/2 years R. I. By the instant appeal, the appellant also impugns his conviction under section 161 IPC and sentence of two years R. I. recorded by Sri Praduman Kumar, Special Judge Mathura vide his judgment and order dated 16-7-1987 in Special Case No. 3 of 1986. 2. Before embarking on the prosecution case, it would be useful to delineate the preliminaries of the case. Appellant Gauri Shanker was ministering as Accounts Clerk in the Canal Department, Mathura from before the occurrence in the instant case. S. K. Gomath, PW 2 being duly appointed Agent of the company M/s. The Indian Cement Pipe Company, Merrut was entrusted with the duties of collecting orders for the Firm viz. the Indian Cement Pipe Company and Ex. ka 3 is a document which testifies to bis appointment by the company as an Agent on 20-12-1983 to perform the aforesaid duties for the Firm. The case of the prosecution is that the aforesaid company had supplied materials to the Canal Department and the payment thereof was being delayed by the Canal Department, Mathura due to the fact that the demand of illegal gratification to the extent of 13% of the total amount due, being demanded by the officers of the Canal Department, was not being met by the Agent. It is further alleged that the Agent S. K. Gomath was under a direction from the Proprietor Indian Cement Pipe Company to part with the amount as illegal gratification to the extent of 1% towards pandering the demand of the Canal Department, Mathura. In the alternative, if the matter is not settled at it, the Agent was directed that those officers who do not relent sans a bigger amount, they may be decoyed and got trapped. In accordance with the directions, S. K. Gomath alongwith Ranvir Singh and Deshraj came to Mathura no 7-4-1984 at about 3.30 p. m. and went to the office of Canal Department at Mathura where he came in contact with Guari Shanker who was the Accounts Clerk in the said Department. In accordance with the directions, S. K. Gomath alongwith Ranvir Singh and Deshraj came to Mathura no 7-4-1984 at about 3.30 p. m. and went to the office of Canal Department at Mathura where he came in contact with Guari Shanker who was the Accounts Clerk in the said Department. Appellant Gauri Shanker demanded illegal gratification to the extent of 13% on the entire sum before releasing the draft in his favour and upon a further discussion, it was agreed that S. K. Gomath would make initial payment of Rs. 950/- which is equivalent to 1% in cash and the remaining 12% shall be paid after the draft is encashed. S. K. Gomath PW 2 walked out of the office stating that he would be coming back shortly after raising the amount of Rs. y50/-. From the office of the Canal Department S. K. Gomath made a beeline to the office of the District Magistrate Mathura where he gave application Ex. ka 4 stating therein that the employees of the Canal Department Mathura were demanding illegal gratification in consideration of releasing the payment which was due to the company aforesaid. Ultimately it was prayed in the said application that those employees who were withholding the payment due to non payment of illegal gratification, be apprehended while accepting the bribe. It was also disclosed in the aforesaid application that the draft for Rs. 96000/- has already been received in the office of the Canal Department from the bank on 31st March 1984 and it was lying in the department undelivered to the company. The said application given by S. K. Gomath was forwarded to the Superintendent of Police Mathura for necessary action. The Supdt. of Police in turn, endorsed the said application to Vijai Shanker Singh, Dy. S. P. Sadabad, Mathura for taking necessary action. Subsequent to it, Vijai Shanker Singh, Dy. S. P. went to his office alongwith S. K. Gomath PW 2 and his two companions Deshraj and Ranvir Singh where he summoned K. P. Singh Yadav, S. I. and others and apprised them of the entire matter. Thereafter, Vijai Raj Singh then recorded the statement of S. K. Gomath with regard to the allegations to the aforesaid effect. Thereafter, S. K. Gomath produced Rs. 900/- of the denomination of 100 (currency notes) and further a note of Rs. Thereafter, Vijai Raj Singh then recorded the statement of S. K. Gomath with regard to the allegations to the aforesaid effect. Thereafter, S. K. Gomath produced Rs. 900/- of the denomination of 100 (currency notes) and further a note of Rs. 50/- which Sri Vijai Shanker Singh initialled for being delivered to the appellant as illegal gratification. A Fard Ex. ka 5 was also prepared in which number of the currency notes were noted down. Thereafter Vijai Shanker Singh and his partymen left for the office of accused Gauri Shanker in a Car which S. K. Gomath owned while the remaining police personnel named above, drove to the scene of occurrence in the Police Jeep. On reaching the office of Canal Department, Vijai Shanker Singh instructed the Police personnel to keep themselves concealed near the room of appellant Gauri Shanker and that only he and S. K. Gomath and his two companions would gain entry into the office. It was specified that the trap party would barge into the office as soon as he signals them by coughing and signal by coughing would be given as soon as the money passes to the hands of the appellant. Gauri Shanker appellant was on his seat when the party consisting of Vijai Shanker Singh, S. K. Gomath and his two companions approached the appellant. S. K. Gomath offered to deliver the money as promised by him. Gauri Shanker appellant thereafter took in his possession the draft from another employee who was sitting near him and obtained the signatures of S. K. Gomath, in the register in token of receipt of the draft. After obtaining signatures of S. K. Gomath in the register, Gauri Shanker took S. K. Gomath and his two companions alongwith Vijai Shanker Singh Dy. S. P. to the adjoining hall. It was in the aforesaid hall that S. K. Gomath passed the currency notes worth Rs. 950/- to accused Gauri Shanker. As soon as the currency notes worth Rs. 950/- passed to the hands of the appellant, Vijai Shanker Singh, Dy. S. P. caught hold of the hand of the appellant at 4.45 PM and at the same time, he signalled to his men by coughing who rushed to the scene of occurrence and took Gauri Shanker alongwith the aforesaid currency notes in their custody. A fard in token of the recovery made from the appellant, was prepared. S. P. caught hold of the hand of the appellant at 4.45 PM and at the same time, he signalled to his men by coughing who rushed to the scene of occurrence and took Gauri Shanker alongwith the aforesaid currency notes in their custody. A fard in token of the recovery made from the appellant, was prepared. The currency notes and the draft were duly sealed and thereafter the appellant was escorted to the Police station Sadar Bazar Mathura where a case was registered against the appellant. Investigation of the case was entrusted to another Dy. S. P. Sri Yadav who after investigation and subsequent to obtaining sanction from the competent Authority for prosecution of the Accounts Clerk Gauri Shanker, submitted charge-sheet in the court. The accused pleaded not guilty to the charge and his case is that of false implication in the case at the instance of S. K. Gomath who had contacted the accused on 6-4-1984 and tried to persuade him to deliver the draft of Rs. 96000/- for onward transmission of the same to the Firm Indian Cement Pipe Company Meerut. It is further setout in his defence by the appellant that that the authority vested in the complainant to transact on behalf of the Firm had been withdrawn and so he was desisting from delivering the draft to the complainant. It is next submitted by the appellant in aid of his defence that neither was he given sum of Rs. 950/- by Sri S. K. Gomath nor was the said amount recovered by Sri Vijai Shanker PW 4 from his possession. To bolster up his defence, the appellant examined Zahir Uddin DW 1 and M. M. Gupta DW 2. The court also examined Lokmani Sharma CW 1 and Virendra Singh CW 2. 3. In support of its case the prosecution has examined in all five witnesses and out of them, K. P. S. Yadav Sub Inspector PW 1, S. K. Gomath PW 2 and Vijai Shanker Singh, PW 4 were examined as ocular witnesses of the occurrence. Out of the aforesaid array of the witnesses, the trial court did not place credence on the testimony of K. P. S. Yadav, SI PW 1, who was also a member of the Raiding party. Hence the conviction now hinges on the testimony of complainant S. K. Gomath and Vijai Shanker Singh, Dy. S. P. 4. Out of the aforesaid array of the witnesses, the trial court did not place credence on the testimony of K. P. S. Yadav, SI PW 1, who was also a member of the Raiding party. Hence the conviction now hinges on the testimony of complainant S. K. Gomath and Vijai Shanker Singh, Dy. S. P. 4. To begin with, I take up the testimony of S. K. Gomath for scrutiny. I propose to dwell on those portions of the testimony of the witness which are strictly necessary for the just decision of the case. Dwelling on the preliminary events, he deposed that he was a duly authorised agent of Indian Cement Pipe Company having been appointed as such on 7-4-84 and to testify to his appointment as Agent, Authority letter Ex. ka 3 is on the record. He further deposed that Canal Department Math Branch Bulandshahr owed a sum of Rs. 96000/- to the company against the supply of materials and when the department was approached it was disclosed by Asstt. Engineer, namely, Dhani Ram at Bulandshahr office that in all, an amount to the extent of 13% on the total sum shall be required to facilitate the payment Since the Executive Engineer of Math Branch Bulandshahr used to camp at Mathura, he was directed by the proprietor of the Company to contact the office at Mathura for the sake of payment. It was further deposed by the witness that he had been authorised by the company to give money as illegal gratification to the extent of 1% in consideration of the payment of Rs. 96000/- due to the department. He was accompanied by two persons, namely, Ranvir and Deshraj whom he did not know from before. He also deposed that he had been instructed by the proprietor of the company that the officers of the Department be decoyed and trapped with the aforesaid amount to the extent of 1.%. He alongwith aforesaid two persons arrived at Mathura on 7-4-84 at about 3 or 3.30 P.M. from where he straight away went to the office of the Canal Department. la the office of the department at Mathura, both Executive Engineer and Asstt. Engineer were not forthcoming and hence, the witness contacted the appellant Gauri Shanker. He alongwith aforesaid two persons arrived at Mathura on 7-4-84 at about 3 or 3.30 P.M. from where he straight away went to the office of the Canal Department. la the office of the department at Mathura, both Executive Engineer and Asstt. Engineer were not forthcoming and hence, the witness contacted the appellant Gauri Shanker. The appellant made a demand to the extent of 13% as illegal gratification as a consideration for releasing the draft in favour of the company and ultimately, it was agreed that initially amount to the extent of 1% as illegal gratification shall be given cash down and the remaining amount to the extent of 12% shall be disbursed after the draft/cheque is encashed. The witness left the office with the assurance that he shall be coming back with the money after a short-while. Thereafter, he contacted the District Magistrate Mathura with an application setting out all the facts with regard to the demand of illegal gratification by the appellant. The aforesaid application of the witness was considered and endorsed by the District Magistrate to the Supdt. of Police. When the aforesaid application was placed before the Supdt. of Police Mathura, he directed Vijai Shanker Singh, Dy. Supdt. of Police to lay trap and decoy the appellant. For the events subsequent to this, I refer to the facts delineated in the preceding part of this judgment. It is also worthwhile to advert to the statement of the witness to the effect that on reaching the seat of the appellant, S. K. Gomath offered to deliver the money as a consideration for releasing the draft upon which appellant took the draft in his possession from one of his colleague who was sitting adjacent to his seat, obtained the signature of the witness in a register and headed towards the adjoining room where the transaction took place. I have meticulously traversed on the cross-examination of the witness. The witness denied to have arrived at Mathura on 6-4-1984 preceding the date of occurrence, and also about the altercation having taken place between him and Gauri Shanker on the day preceding the date of occurrence. He also denied the allegation that Vijai Shanker Singh, Dy. Superintendent of Police had threatened the appellant on telephone on 6-4 1984 with dire consequences to the appellant, if the appellant did not deliver the draft to the appellant (?). He also denied the allegation that Vijai Shanker Singh, Dy. Superintendent of Police had threatened the appellant on telephone on 6-4 1984 with dire consequences to the appellant, if the appellant did not deliver the draft to the appellant (?). He also denied that a plot was hatched to falsely implicate the accused in the case as a result of non-delivery of the draft and further that his appointment as Agent had been terminated by the company on 14-3-1984. Further in cross-examination, it was asserted by the witness that the appellant was trapped with bribe money by the Dy. Superintendent of Police in the adjoining small room in his presence. This version of the witness is discrepant with the statement made by him under section 161 CrPC wherein he had stated that the witnesses had been instructed by Vijai Shanker Singh, Dy. Supdt. of Police to follow him on reaching the office of the accused. I advert to the recovery memo Ex. ka 1 which is also signed by S. K. Gomath, in which it is mentioned that all the witnesses including S. K. Gomath, Vijai Shanker Singh had walked upto the seat of the accused and on reaching the seat of the appellant, S. K. Gomath revealed to the appellant that he had brought the money and that he should accept the money and deliver the draft to him. These two statements in contrast of each other clearly go to show that at the initial stage the prosecution case was that the entire party had reached the seat of the accused whereas before the court S. K. Gomath bad deposed that he and Vijai Shanker had gone to the seat of the accused in the big hall and on his telling the accused that he had brought the money, the accused took the draft from another employee and headed towards the adjoining small room followed by him and Vijai Shanker Singh where the bribe money was delivered and the appellant was trapped with the graft money by Vijai Shanker Singh. 5. 5. To bolster up the defence case and to inspire confidence in the veracity of its case, the learned counsel for the appellant contended that in the conspectus of the evidence of Zaheer Uddin DW 1, Madan Mohan Gupta, DW 2, Lokmani Sharma, CW 1, and Virendra Singh CW 2, Executive Engineer, it transpires that the appointment of S K Gomath had been terminated by the company with effect from 14-3-84 vide Ex Kha 2- a photo copy of which had been received in the office of the department at Mathura. The veracity of the aforesaid document is fully testified by the endorsement made by CW 2 Virendra Singh Executive Ensineer on 20th March 1984. Madan Mohan Gupta, DW 2, partner of the Firm had also deposed that the services of S K Gomath stood terminated by his Firm wef 14-3-84 and an intimation to that effect had been transmitted to the Canal Department and its Branch Offices. The learned counsel for the appellant submitted that in the conspectus of the facts and circumstances enumerated above, there is no material infirmity or discrepancy over-shadowing the evidence of Zaheer Uddin DW 1, Madan Mohan Gupta DW 2, Lokman Sharma CW 1 and Virendra Singh, CW 2 by which they may be discredited as unworthy of being relied upon. It is further contended by the learned counsel that once it has been established by the defence evidence that S. K. Gomath was not the authorised agent to receive the draft from the office of the Executive Engineer Branch Office Mathura, it does not stand to reason that appellant could have agreed to deliver the draft against some illegal gratification as a consideration. The probability cannot be eliminated from the domain of possibility that S. K. Gomath had made an unsuccessful bid to secure draft of Rs. 96000/- from the appellant on 6-4-88 as is the case of the defence as admittedly, S. K. Gomath had a sum of Rs. 22000/- due from the Firm. I would like to advert to a glaring feature of the case which the learned counsel has strenuously propounded. This physical impossibility also over-shadows the case of the prosecution with nagging doubt. 96000/- from the appellant on 6-4-88 as is the case of the defence as admittedly, S. K. Gomath had a sum of Rs. 22000/- due from the Firm. I would like to advert to a glaring feature of the case which the learned counsel has strenuously propounded. This physical impossibility also over-shadows the case of the prosecution with nagging doubt. It has come in the evidence of S. K Gomath that he had been able to reach Mathura from Bulandshahr on 7-4-84 at about 3 or 3.30 P. M where from he went to the office of the Executive Engineer, Canal Department, contacted the appellant and from there, he went to the District Magistrate, moved an application for trapping the appellant with the graft money, then he was directed to contact the Supdt. of Police who entrusted the matter to Vijai Shanker Singh, Dy. Supdt. of Police. After observing necessary formalities, the Raiding party came to the office of the Executive Engineer where the appellant was entrapped with the graft money. Normally office closes at 5 P.M. all the aforesaid proceedings cannot be performed within such a short span of time i.e. 1, 1/2 hours by any stretch of imagination. The prosecution by its version wants this court to believe an impossibility. Of course, it is near to impossible that S K. Gomath after arriving at Mathura at about 3.30 P.M for the first time could contact the appellant in his office, thereafter met the District Magistrate as if he had been waiting for him with prior information, then the Superintendent of Police and finally the Dy Superintendent of Police, who arranged the trap to apprehend the appellant with the graft money. It is in this perspective that my doubts jell into conviction about the veracity of the prosecution case, I may further observe that it is in this perspective that the defence version commends itself for my acceptance to the effect that on 6-4-1984, Vijai Shanker Singh, Dy. Superintendent of Police had threatened the appellant on telephone to deliver the draft of Rs. 96000/- to S. K. Gomath or to face the consequences and is the appellant failing to toe line of his direction, he was implicated in the instant case as a part of design hatched against the appellant. Superintendent of Police had threatened the appellant on telephone to deliver the draft of Rs. 96000/- to S. K. Gomath or to face the consequences and is the appellant failing to toe line of his direction, he was implicated in the instant case as a part of design hatched against the appellant. Unfortunately, the trial court has not given due weight to the evidence of DW 1, DW 2, CW 1 and CW 2 in the conspectus of the facts and circumstances emerging in the instant case and proceeded to discard their evidence on flimsy grounds vis-a-vis the fact that the prosecution was not able to fish out any material infirmity or discrepancy in their evidence rendering them unworthy of any credence. The trial court has discarded their evidence for the reasons which are patently wrong merely by a cryptic remark that DW 1 Zaheer Uddin. DW 2, Virendra Singh and CW 1 Lokmani Sharma, were connected with the deptt. of the appellant and M. M. Gupta DW 2 being partner of the firm was under the influence of the appellant and others. I have scanned their evidence in all materials particulars and I do not have any reason to discount their evidence, which goes a long way to prove the innocence of the appellant. Dwelling on the infirmities in the evidence of S. K- Gomath, the learned counsel for the appellant submitted that S. K. Gomath had a strong motive to involve falsely the appellant in the instant case inasmuch as that the appellant had refused to part with the draft and in this view of the matter his evidence warrants independent and disinterested corroboration which is conspicuously lacking in this case. Unfortunately for the prosecution case, the two companions of S. K. Gomath, namely, Ranvir Singh and Desh Raj who had witnessed the search of the person of the appellant were not curiously enough, examined to lend support to the prosecution version. 6. In the entire conspectus of the facts and circumstances, I hold that the evidence of Sri S. K. Gomath wears the taint of malafide and smacks of his being interested and untruthful, not to speak of inspiring confidence. Second io the array of witnesses is Vijai Shanker Singh PW 4. Being Deputy Superintendent of Police, he had been entrusted with the task of decoying the appellant alongwith graft money. Second io the array of witnesses is Vijai Shanker Singh PW 4. Being Deputy Superintendent of Police, he had been entrusted with the task of decoying the appellant alongwith graft money. Besides, he is the sole witness to lend corroboration to the evidence of S K. Gomath. He deposed that S. K Gomath had given an application in the office of Superintendent of Police Mathura in the presence of Superintendent of Police, who endorsed the said application to the witness directing him to entrap the appellant alongwith the graft money. Thereafter, he took S. K. Gomath to his room where his statement was taken down in the presence of Desh Raj and Ranvir and other police personnel. On demand, S. K. Gomath produced currency notes worth Rs. 950/- which he had initialled, for being delivered to the appellant as a graft money. Thereafter he handed out the said currency -notes to S. K. Gomath and instructed him and others in accordance with the plan conceived to entrap the appellant. For the events subsequent to it, I refer to the facts set out in the preceding part of this judgment while delineating the prosecution case. As stated above, he was leader of the Raiding party and can well be said to be interested in the success of the trap. If independent corroboration is wanting in so far as the evidence of a trap officer is concerned, it should receive consideration in exceptional cases. In the cases as is the instant one, the evidence of Vijai Shanker Singh, Dy. Supdt. of Police stands on the same footing which is unsupported with any independent corroboration. To a question put to him in the cross-examination, the witness replied that he did not deem it necessary to take along public witnesses to witness the trap being laid for decoying the appellant in the case alongwith the graft money. This conduct of the witness is a sad commentary on the way he has acquitted himself in the task entrusted to him. The presence of public witnesses would have lent a much needed corroboration to the prosecution case and assured fairness in the conduct of the officer. Non-examination of public witnesses has aroused strong suspicion about the veracity of the prosecution case. It was none of his job to think about the propreity of certain requirements vis-a-vis the requirements of law. The presence of public witnesses would have lent a much needed corroboration to the prosecution case and assured fairness in the conduct of the officer. Non-examination of public witnesses has aroused strong suspicion about the veracity of the prosecution case. It was none of his job to think about the propreity of certain requirements vis-a-vis the requirements of law. The learned counsel has adverted to a glaring contradiction that before the trial court the witness clearly stated that the entire transaction of delivering the bribe money and securing draft from the appellant was performed in the small room, whereas in the F.I.R lodged by him and during the investigation of the cass he stated before the Investigating Officer under section 161 CrPC that the graft money was handed out to the appellant in the hall itself. Moreover the site plan prepared by the Investigating Officer at the instance of Vijay Shanker Singh discloses that entire transaction was performed in the hall. Even recovery memo Ex. Ka-1, which was prepared by K. P. S. Yadav, PW 1 on the dictation of Vijai Shanker Singh, is eloquent proof of the fact that entire transaction was executed in the big hall in the presence of the witnesses. From the above contradiction in the statements, it transpires that the witness has considerably improved upon his statement before the trial court in which the story of 'signalling' by coughing was for the first time introduced to give colour to the prosecution case. Vijai Shanker Singh has no doubt denied to have threatened the appellant on telephone for not delivering the draft to S. K. Gomath on 6-4-88 but the evidence of Zaheer Uddin, Cashier coupled with the statement of Virendra Singh Executive Engineer CW 2 is eloquent enough of the fact that on 7-4-1989 when Virendra Singh CW 2 arrived, Zaheer Uddin CW 1 had invited his attention to the threats given to appellant by Vijai Shanker on telephone on 6-4-84 on account of the appellant's not delivering draft to the complainant S. K. Gomath. In the above perspective, Vijai Shanker Singh cannot be held to be independent and wholly reliable witness. Besides, his evidence does not inspire confidence as to enable me to act upon his evidence for the conviction of the appellant. 7. In the above perspective, Vijai Shanker Singh cannot be held to be independent and wholly reliable witness. Besides, his evidence does not inspire confidence as to enable me to act upon his evidence for the conviction of the appellant. 7. I have given my thoughtful consideration to the facts and circumstances of the case and upon totality of the facts and circumstances involved in the instant case, I am of the view that the prosecution has miserably failed to bring home the guilt to the appellant on the basis of the evidence adduced in the instant case. 8. Upon a conspectus, I feel that conviction and sentences recorded by the trial court against the appellant cannot be sustained. In the result, the appeal is allowed. The conviction and sentences recorded against the appellant Gauri Shanker are set aside. The appellant is on bail. He need not surrender. His bail bonds are discharged.