A. G. QURESHI, J. ( 1 ) THIS judgment shall govern the disposal of Cr. A. No. 238 of 90 (Rajendra Prasad v. State of M. P.) and Cr. A. No. 239 of 1990 (Azizuddin Qureshi v. State of M. P.) filed by the accused persons challenging their conviction and sentence passed by the Special Judge, Ujjain in Spl. Case No. 3 of 1986 dated 15-6-1990, whereby the appellant Rajendra Prasad has been convicted under S. 161, IPC, S. 5 (1) (d) and S. 5 (2) of the Prevention of Corruption Act and sentenced to undergo R. I. for 2 years, 2 years, and fine of Rs. 2000/- respectively. Appellant Azizuddin Qureshi has been convicted under Section 161, IPC, S. 5 (1) (d) and 5 (2) of the Prevention of Corruption Act and sentenced to undergo R. I. for 2 years, 2 years, and fine of Rs. 10,000/- respectively for committing the aforesaid offences. The sentences of both the accused are directed to run concurrently. ( 2 ) THE facts leading to these appeals, in short, are that the State of M. P. through Special Police Establishment (Divisional Lokayukt Office, Ujjain) filed a charge sheet against the present accused persons before the Special Magistrate, Ujjain on the allegation that on 8-7-1985 they being the public servants and in that capicity as public servants they took Rs. 1200/- from one Jaiprakash which was not their legal remuneration for charging the timing of the bus run by Javabhai Mohammed and as such boy committed the offences under Sections 161, IPC, S. 5 (1) (d) read with S. 5 (2) of the Prevention of Corruption Act. ( 3 ) IT is a common ground that both the accused persons are Public Servants and accused Azizuddin Qureshi was working as the Regional Transport Officer, Ujjain at the relevant time and accused Rajendra Prasad Dwivedi was upper division clerk in the same office at the time. According to the prosecution story permits were issued for operating buses from Dewas to Berotha. These permits were given to private parties. A temporary permit was also issued on the same route in favour of P. W. 11 Rameshchand Sharma. On that route P. W. 2 Jaiprakash Sharma was operating the bus on that permit. The time allotted to the aforesaid Jaiprakash Sharma being inconvenient, he wanted to change the timing of the permit of M/s. Javabhai Mohammed. A temporary permit was also issued on the same route in favour of P. W. 11 Rameshchand Sharma. On that route P. W. 2 Jaiprakash Sharma was operating the bus on that permit. The time allotted to the aforesaid Jaiprakash Sharma being inconvenient, he wanted to change the timing of the permit of M/s. Javabhai Mohammed. Therefore, the aforesaid Jaiprakash Sharma filed an application on 13-6-1985, Ex. P4, before the R. T. O. Ujjain. Thereafter another application was also filed on 18-6-1985. On the second application 1-7-1985 was fixed for hearing of both the parties. On that date the arguments were heard and Shri Kemkar Advocate appeared on behalf of Sharma. On 1-7-1985, after hearing the arguments, order on the application was reserved. ( 4 ) ACCORDING to prosecution on 3-7-1985 Jaiprakash Sharma along with his brother Rameshchandra Sharma and one Rajmal Jian went to the office of the accused to meet him. On that date accused Azizudden Qureshi demanded Rs. 3000/-, for changing the timing of the bus of Java Bhai Mohammed, as illegal gratification, but after some discussion it was decided that Rs. 2000/- shall be paid to Azizuddin. It was further decided that the amount of illegal gratification was to be paid to Rajendraprasad Dwivedi. Thereafter on 6-7-1985 Jaiprakash Sharma met accused Rajendra Prasad Dwivedi along with one Bhanwar Singh. At that time Jaiprakash Sharma told accused Dwivedi that the matter has been settled with the R. T. O. for Rs. 2000/- and he has brought Rs. 1000/- out of that amount. Upon that the accused Dwivedi went inside and met the R. T. O. and on return he took Rs. 1000/- from Jaiprakash Sharma and wrote a note sheet for changing the timing of the bus of Javabhai Mohammed and upon that the R. T. O. passed an order changing the time of the bus of Javabhai. But the timing was not changed as desired by Sharma and the time was allotted at 4 p. m. instead of 8. 15 p. m. It has also been stated that it was also decided that the remaining Rs. 1000/- along with Rs. 200/- for Dwivedi, thus a total of Rs. 1200/- should be given to Dwivedi on 8-7-1985. But Jaiprakash did not want to pay the remaining amount of illegal gratification to the accused persons. ( 5 ) ON 8-7-1985 Jaiprakash lodged a written complaint Ex. 1000/- along with Rs. 200/- for Dwivedi, thus a total of Rs. 1200/- should be given to Dwivedi on 8-7-1985. But Jaiprakash did not want to pay the remaining amount of illegal gratification to the accused persons. ( 5 ) ON 8-7-1985 Jaiprakash lodged a written complaint Ex. P1 before the S. P. Lokayukt. Ujjain. Thereupon the Superintendent of Police arranged a trap and thereafter the Dy. Superintendent of Police Shri Rajput was contacted and the Co-operation of Gazetted Officer shri Karansingh Rathore (P. W. 10) was obtained and one panch witness. V. K. Sharma (P. W. 5) was also asked to accompany. Thereafter Jaiprakash Sharma presented eleven hundred rupee notes and two notes of Rs. Fifty each to the officers. On those notes peon Mangilal put the phinaphthaline powder and those notes were kept in the front pocket of the bush shirt of the complainant and he was asked that he should not touch those notes till they are handed over to the accused. Then the hands of the complainant and the panchas were washed in the liquid of sodium carbonate, but the colour of the liquid did not change. But when the hands of Mangilal were washed in another liquid of the same chemical, the water turned pink. The samples of the powder were taken and sealed and similarly the water. It was also arranged that after giving the money the complainant should put his hand on this head as an indication of having given the bribe and he was further asked not to shake hands with the accused. A Panchanama Ex. P2 was drawn of all these proceedings. Thereafter at quarter to four, the trap party reached the office of the accused persons. ( 6 ) THE complainant Jaiprakash Sharma and witness Virendrakumar Sharma were first sent in the office of the accused. Then constable Vithal Rao and Babulal Pare were also sent. When the complainant reached accused Dwivedi he handed over to him Rs. 1200/- saying that Rs. 200/- are for him and Rs. 1000/- are for accused Azizuddin. Accused Dwivedi took that amount Rs. 1200/and he started going inside for giving the money to accused Azizuddin. When Dwivedi was on the way constable Vithal Rao and Pare caught hold of Dwivedi on receiving the signal. Thereupon Shri Upadhyaya and Karan Singh also reached there when Rajendra Kumar Dwivedi threw the notes on the floor. Accused Dwivedi took that amount Rs. 1200/and he started going inside for giving the money to accused Azizuddin. When Dwivedi was on the way constable Vithal Rao and Pare caught hold of Dwivedi on receiving the signal. Thereupon Shri Upadhyaya and Karan Singh also reached there when Rajendra Kumar Dwivedi threw the notes on the floor. After that water was put in three glasses and sodium cabronate was put in the glasses and then the hands of the gazetted officer were washed in one glass. The colour of the solution remained unchanged. Then in the second glass the hands of the accused Dwivedi were washed. The colour of the water become light pink and in the third glass the hands of the complainant were washed and the colour of that glass also became pink. Thereafter the samples of the three glasses were taken and sealed. Thereafter the gazetted officer picked up the notes lying on the floor and compared the numbers of the notes with the Panchama. Thereafter the notes were seized and a memo Ex. P3 was prepared. ( 7 ) THE accused persons adjured the guilt and pleaded innocence. According to the defence the complainant was angry with Azizuddin Qureshi for four reasons the first reason was that on 29-10-1983 accused Azizuddin had checked one bus of the complainant which was plying without permit and the matter was compromised and the compromise amount of Rs. 1200/- was levied on the complainant, secondly the R. T. O. had recovered the old dues of passenger tax from him and the third reason was that the accused wanted the timing of the bus of Java Bhai changed to 8. 15 p. m. whereas the accused had changed the timing to 4 p. m. The fourth reason was that the applicant wanted a monopoly on the route in question for his buses. The complainant was also of the opinion that the accused used to decide the cases on the basis of the caste and community. Because accused Dwivedi was working under Qureshi and the complainant was of the view that the accused is a favourite of the R. T. O. therefore, he was displeased with Dwivedi also. ( 8 ) THE lower Court, after trial of the case convicted and sentenced the appellants as above. Hence these two appeals. Because accused Dwivedi was working under Qureshi and the complainant was of the view that the accused is a favourite of the R. T. O. therefore, he was displeased with Dwivedi also. ( 8 ) THE lower Court, after trial of the case convicted and sentenced the appellants as above. Hence these two appeals. ( 9 ) THE learned counsel Shri Tiwari has challenged all the findings recorded by the learned trial Court on the ground that the findings are perverse and have been based on surmises and conjectures. Even as the prosecution case stands no conviction could be recorded against any of the accused persons on the basis of the prosecution story. According to Shri Tiwari, as per the prosecution story itself there is no allegation of demand of bribe by Dwivedi according to Ex. P1 itself. The alleged payment of Rs. 1000/- on 6-7-1985 is not borne out by Ex. P 2. The alleged receipt of Rs. 1000/- after meeting with the R. T. O. as alleged in Ex. P1 is materially contradicted by the statement of P. W. 11 in para 4. The material witness Bhanwar Singh is given up and is not examined. As such adverse inference should have been drawn for his non examination. Accused Dwivedi is not shown to be sharing any intention to take the bribe with R. T. O. Azizuddin. The trap was also not laid for catching Dwevedi and he is not shown be a part to the alleged bargain and in any case on the date of the alleged bargain Dwivedi was on leave. The story of the trap itself becomes unnatural when it is said that when Dwivedi was going to pay the amount to Qureshi he was trapped whereas if the trap was for Qureshi the party could have waited for few seconds so that the amount must have passed on to Qureshi. This shows that the case has been fabricated against the accused persons. ( 10 ) THE learned counsel Shri Tiwari further argued that the order dated 6-7-1985 also falsified the whole prosecution story. If the bargain was for changing the timing to 8. 15 p. m. then how is it that even after changing the timing by the R. T. O. against the wishes of the complainant he would pay the remaining amount of the bribe to Dwivedi ? If the bargain was for changing the timing to 8. 15 p. m. then how is it that even after changing the timing by the R. T. O. against the wishes of the complainant he would pay the remaining amount of the bribe to Dwivedi ? This fact itself shows the falsity of the whole story. Actually the inability to get time of choice was the reason to implicate falsely the accused persons by the complaint. Ex. P. 8 itself demolishes the case of the prosecution. There is no evidence to show that Qureshi was present in the office on 3-7-1985 except the testimony of the interested witnesses Virendrakumar Sharma (P. W. 5) and Rameshchandra Sharma (P. W. 11 ). Actually Ex. P. 11, Ex. P. 11, Ex. D. 3 to Ex. D 6 and the oral testimony of Narmada Shanker (P. W. 4 ). Shrikant (P. W. 6) and P. W. 8 Rajkumar rebut the allegations. ( 11 ) ACCORDING to Shri Tiwari, learned counsel, the report Ex. P1 has also been substituted with the original report and the names of P. W. 11 and P. W. 3 have been introduced at a later stage, because the statements of Karansingh, R. N. Upadhyaya, Akolekar, K. S. Baba and Pare recorded under S. 161, Cr. P. C. do not make any mention of these two persons. Actually P. W. 2 and P. W. 11 are on the footing of accomplices and cannot be believed without corroboration from independent sources. Even in view of the infirmities in the statements and the nature of the story they cannot be believed. Rajmal an independent witness, does not support P. W. 2 and P. W. 11 Shri Tiwari vehemently argues that nobody would make a demand from any person for passing an adverse order against him and no person in his right mind would be willing to pay the amount of bribe after getting an adverse order. As such this fact itself is sufficient to demolish the prosecution story. Why cash receipts and registers were seized is not explained by the prosecution. In Ex. P. 14 date of offence is noted as 6-7-1985, Ex. P 1 shows 9-7-1985 and there is an overwriting on that. Shri Tiwari on the basis of the aforesaid points vehemently argues that the prosecution has utterly failed to prove any case against the appellants. Why cash receipts and registers were seized is not explained by the prosecution. In Ex. P. 14 date of offence is noted as 6-7-1985, Ex. P 1 shows 9-7-1985 and there is an overwriting on that. Shri Tiwari on the basis of the aforesaid points vehemently argues that the prosecution has utterly failed to prove any case against the appellants. The whole prosecution story is false, mischievous and fabricated. Lastly it has been argued that the sanction itself is not proved to have been given by a competent person. ( 12 ) ON the other hand the learned Panel Lawyer has simply argued that the order of the lower Court is proper and does not require any interference. ( 13 ) IN view of the aforesaid arguments, let us first consider the question of the validity of sanction. A Full Bench of the M. P. High Court in the case of Sunderlal Shivana v. State of M. P. , AIR 1988 MP 70 has held that a sanction given by the law and Legislative Affairs Department in accordance with the Business Allocation Rules was a valid sanction although the appointing authority of the employee was the Revenue Department. In the aforesaid authority the Full Bench has held that if a sanction order is issued even by the Deputy Secretary of the Department in the name of and by the order of the Governor, such a sanction is valid. However, the sanction has to be by the authority competent in accordance with the Business Allocation Rules. In the instant case the prosecution has examined P. W. 9 Jagdishnarayan Pande, who was the Deputy Secretary of the Home Department at the time when the sanction for prosecution was accorded. He in his statement has stated that the sanction authority is the Secretary, but the file remains with the Deputy Secretary and they issue the orders. Thereafter he changed his version and stated that the powers of sanction are with the Deputy Secretary and he had actually applied his mind to the facts and circumstances of the case and accorded the sanction. In my opinion the Allocation of Business Rules have not given such power to the Deputy Secretary. The power of according sanction lies with the Secretary only. In my opinion the Allocation of Business Rules have not given such power to the Deputy Secretary. The power of according sanction lies with the Secretary only. However, once the orders of sanction are given by the Minister or the Secretary such order can always be issued by the Deputy Secretary by order and in the name of the Governor. However, the statement of Shri Pande does not find support from the Allocation of Business Rules and the learned Panel lawyer has not been able to show that by any special or general order the powers to accord sanction for prosecution were given to the Deputy Secretary. In Sunderlal's case (supra) also the Full Bench has held that the order of according sanction is a valid order in view of the fact that the actual sanction for prosecution was accorded by the Minister of the Department and the order has been authenticated as required under the Rules by the Deputy Secretary. As such the Deputy Secretary is only an authority to authenticate the order passed by the prescribed authority. In the aforesaid circumstances the sanction for prosecution is not proved to have been given by the person competent to accord the sanction. Therefore, the appeals of the appellants deserve to be allowed on this ground alone. ( 14 ) NOW in view of the arguments, the other point which falls for consideration is whether the prosecution has been able to prove that there was a demand of bribe from the complainant by any of the appellants. According to the prosecution story the demand of Rs. 2200/- was made by accused-appellant Qureshi from Jayaprakash Sharma (P. W. 2) on 3-7-1985 and it was agreed that he would pay Rs. 1000/- on 6-7-1985 and Rs. 1000/- on 8-7-1985 and Rs. 200/- were to be paid to accused Dwivedi. On this point the prosecution has examined three witnesses i. e. P. W. 2 Jaiprakash Sharma, P. W. 3 Rajmal and P. W. 11 Ramesh Chand Sharma out of these three P. W. 2 is the complainant, P. W. 11 is the brother-in-law of the complainant for whom the permit was obtained and who was actually the operator of the permit and only Rajmal is an independent witness. According to Rajmal he never met the R. T. O. on 3-7-1985 along with P. W. 2 and P. W. 11 and no talk took place before him. This witness was cross-examined and nothing has been brought in his cross-examination which may be sufficient to hold that he is telling a lie. On the contrary from the cross-examination it appears that actually Jayaprakash Sharma (P. W. 2) was doing all the R. T. O. work on behalf of this witness. The learned lower court has held that this witness is suppressing the truth merely on the ground that the Investigating officer, P. W. 13 Gajrajsingh has stated that this witness had given a statement Ex. P7 and there is no reason why Gajrajsingh would tell a lie. Therefore, this witness has not be believed. The further fact which weighed with the lower court is that because this witness was in the transport business 7 or 8 months before his statement, therefore, it is possible that he may be under the pressure of the accused persons. I do not agree with the mode adopted by the learned lower court far appreciating the evidence of Rajmal. If the courts start disbelieving the testimony of independent witnesses only on the ground that their statements do not tally with the case diory statements, then the position would be that in every case where the statements of the witnesses or oath before the court are contrary to the statements recorded under S. 161, Cr. P. C. the witnesses will be held untrustworthy. Therefore, it is manifest that the lower court has erred in appreciating the evidence of this witness. ( 15 ) AS regards the statement of P. W. 2 and P. W. 11 Jayaprakash Sharma and Rajeshchand Sharma are concerned, it has not been disputed before me and before the lower court also that they are interested witnesses. The Supreme Court in Panalal Damodar Rathi v. State of Maharashtra, AIR 1979 SC 1191 : (1979 Cri LJ 936) has held that complainant is in no better position than an accomplice after introduction of S. 165a of the Indian Penal Code and, therefore, corroboration in material particulars is a must before reliance can be placed on such testimony. The Supreme Court in Panalal Damodar Rathi v. State of Maharashtra, AIR 1979 SC 1191 : (1979 Cri LJ 936) has held that complainant is in no better position than an accomplice after introduction of S. 165a of the Indian Penal Code and, therefore, corroboration in material particulars is a must before reliance can be placed on such testimony. In the instant case both Jayaprakash Sharma and Rameshchandara Sharma are the persons who had offered the bribe to the accused Qureshi according to the prosecution story itself. As such they are the accomplices and their testimony cannot be relied upon without corroboration. ( 16 ) THE learned lower court has held that the statement of the complainant stands corroborated by Rameshchandra Sharma, although he is the brother in law of the complainant with a further corroboration from the fact that as no order was passed on 3-7-1985, therefore, it was probable that the complainant met the accused on 3-7-1985 (para 8 of the judgment ). In my opinion the lower court was misdirected in the appreciation of the evidence in this behalf also because an accomplice cannot corroborate the other accomplice. From the prosecution story it is manifest that Ramesh Chandra Sharma was also an accomplice along with Jayaprakash Sharma. It is not the relation alone which makes him the accomplice, but actually the permit in question and the timing of the permit which was the apple of discord was actually issued to Rameshchandra Sharma and he was the person who was to be benefited by this permit. Therefore, when both Jayaprakash Sharma and Rameshchandra Sharma went to the office of the R. T. O. and offered the bribe and accepted to give the bribe, then they both are accomplices and, therefore, an independent corroboration of their testimony was necessary. The only independent witness Rajmal who has been examined by the prosecution, does not support the prosecution story. ( 17 ) NOW, as regards the non passing of the order till 3-7-1985 is concerned, it is no corroboration in the eyes of law. It only shows that some order was to be passed on the application. Even on independent appraisal of the evidence of these witnesses, I find that their statements does not inspire any confidence. Jaiprakash Sharma in his statement has stated that the R. T. O. Qureshi had told him that Rs. It only shows that some order was to be passed on the application. Even on independent appraisal of the evidence of these witnesses, I find that their statements does not inspire any confidence. Jaiprakash Sharma in his statement has stated that the R. T. O. Qureshi had told him that Rs. 1000/- be paid to Dwivedi on 6-7-1985 and the remaining Rs. 1200/- has to be paid on 8-7-1985. This fact that the money was to be paid in two instalments stands contradicted from the FIR Ex. P 1 where in the complainant has stated that the R. T. O. had told him to give the money to Dwivedi. As such the deal which is alleged to have been agreed between the parties was according to F. I. R. of giving the full amount to Dwivedi whereas in the statement this witness talks about giving of the amount of bribe in two instalments. Furthermore this witness admits that on 29-10-1983 the accused Qureshi had seized one of his bus for which he had paid Rs. 1260/- as compounding fee. He also admits that taxes were due to the tune of Rs. 6000/- against him and he cannot say if more amount of the tax due was deposited by his brother. In para 17 of his statement this witness says that since Qureshi had given timings before and after his bus, he had a feeling in his mind that Qureshi favoured the Muslim operators and, therefore, he had sent an application before the incident to the Secretary, Home Department making complaint against the accused, a copy of which was given to the accused Qureshi. This application he had given in the third week of June. He also admits that the bus for which the permit was sought belongs to his brother-in-law P. W. 11 He also admits that accused Rajendraprasad Dwivedi never demanded any money from him. Only on 8-7-1985 the demand was made by Dwivedi. ( 18 ) THE prosecution has examined P. W. 4 Narbada Shanker who in his statement in para 4 has admitted that from the Log Book of the vehicle CPZ 3300 it appears that on 3-7-1985 accused Qureshi went from Ujjain to Nagda and Jaora and returned back. According to the entry in the Log Book he left Ujjain 6 a. m. and returned back 6. According to the entry in the Log Book he left Ujjain 6 a. m. and returned back 6. 30 p. m. As regards the Log Book the court has put some leading questions to this witness, whereupon he has said that he has no personal knowledge about the entries in the Log Book. He has brought the Log Book only because it was in his custody. However he is not in a position to say who had made entries in the Log Book, but the Log Book bears the signature of R. T. O. Qureshi. The learned lower court has held that these entries are not proved beyond doubt and there is every possibility of manipulation ignoring the fact that this witness was not produced as a defence witness to prove the alibi of the accused but he had brought the official record from the office. Nothing has been asked from this witness to demonstrate that the entries were ante-dated or the entries were false. On the contrary the documents Ex. D3 to Ex. D6 show that various vehicles were checked by accused Qureshi and fines were imposed for which receipts of the Department were issued. Ex. D3 shows that a vehicle was checked at 7. 45 am. at Nagda and fine was imposed. Ex. D4 shows that vehicle was checked at Jaora at 11. 20 a. m. Ex. D5 shows the vehicle was checked at Kachrod at 4. 20 p. m. Ex. D6 shows that a vehicle was checked at Kachrod at 5. 15 p. m. and all these checking reports and panchanamas are of 3-7-1985 which bears the signatures of the RTO. Therefore, these documents along with the Log Book clearly show that the accused appellant Qureshi was not in Ujjain on that date. The court has held that in the book containing Exs. D3 to D6 at Serial No. 33 there is the checking report wherein it has been shown that at 4. 30 p. m. the R. T. O. checked the vehicle near the Engineering college and from this it appears that when the R. T. O. was present sented in the office how could he checke a vehicle at the Engineering college at 4. 30 p. m. the R. T. O. checked the vehicle near the Engineering college and from this it appears that when the R. T. O. was present sented in the office how could he checke a vehicle at the Engineering college at 4. 30 p. m. but this assumption of the learned lower court is contrary to the record and erroneous for the simple reason that the Engineering college is in the vicinity of the R. T. O. office at Ujjain. ( 19 ) THE witnesses have stated that the proceedings of the preparation of trap continued up to 6 or 7 p. m. and head constable Vithal Rao (P. W. 7) has stated that up to 5. 30 or 6 p. m. the proceedings continued and till then he had not seen accused Qureshi in the office, but when the trap party went the office of Qureshi that time Qureshi met him. Therefore, no adverse inference could be drawn by receipt No. 33 found in the panchanama book of the department. As such the lower court has erred in not believing on the documentary evidence of the department pertaining to log book, the T. A. bills and the various panchanama Ex. D3 to Ex. D6 showing that accused Qureshi was not in Ujjain between 6 p. m. to 6. 30 p. m. From the aforesaid documentary evidence itself the case of the prosecution that R. T. O. Qureshi made any demand of bribe falls to the ground. ( 20 ) FURTHERMORE in the circumstances of the case also make it abundantly clear that no talk of any illegal gratification could have taken place between accused Qureshi and Jayaprakash Sharma. It is admitted by Jayaprakash Sharma that he had a feeling that the accused is favouring the Muslim and, therefore, he was annoyed with him, and, so, he made a complaint against him to Home Secretary and a copy of which was given to the R. T. O. in the third week of June itself. It is admitted by Jayaprakash Sharma that he had a feeling that the accused is favouring the Muslim and, therefore, he was annoyed with him, and, so, he made a complaint against him to Home Secretary and a copy of which was given to the R. T. O. in the third week of June itself. As such only after five days to seven days how could a man who bore a grudge against Qureshi who had taken action of seizure of his bus, recovery of dues and granting permits against his wishes to other operators would go to Qureshi for striking a deal especially when he had already lodged a serious complaint against Qureshi to the Home Secretary and had also brought this fact to the notice of Qureshi only a few days before the alleged talk of illegal gratification on 3-7-1985. Furthermore the statement of P. W. 2 and P. W. 11 show that the talk was in the open court when Qureshi was sitting on the dias and they were standing in front of the dias. Talks of taking illegal gratification in the open while sitting on the Board appears to be highly improbable. In any case the oral testimony as against the documentary evidence is that of the two accomplices, which do not find corroboration from the solitary independent witness Rajmal (PW. 3) and, therefore, no reliance could have been placed on the testimony of P. W. 2 and P. W. 11 to hold that a demand of money was made by the R. T. O. Qureshi on 3-7-1985. from the complainant. This court in the case of Jagdish Chandra Makhija v. State of M. P. 1990 MPLJ 239 has also, following the Supreme Court case, held that when the case of the complainant that the appellant demanded bribe is not corroborated, such statement cannot be accepted. As such I hold that the prosecution has miserably failed to prove that there was any demand on the part of accused Qureshi from the complainant of any illegal gratification on 3-7-1985. ( 21 ) NOW it is a well settled principle that once the factum of demand has not been proved, then the evidence of acceptance of bribe has to be viewed with suspicion. ( 21 ) NOW it is a well settled principle that once the factum of demand has not been proved, then the evidence of acceptance of bribe has to be viewed with suspicion. In the instant case the aforesaid circumstances clearly make the whole story of the prosecution suspicious in view of the fact that the fact of demand of illegal gratification by the accused Qureshi is not established. Therefore, the evidence has to be viewed cautiously in respect of the actual trap laid by the prosecution. ( 22 ) ACCORDING to the complainant and the prosecution story on 6-7-1985 the complainant had given Rs. 1000/- to Dwivedi in the office and at that time one independent witness Bhanwarsingh was with him, but Bhanwarsingh has not been examined by the prosecution, saying that he has turned hostile. As such the whole case of payment of money on 6-7-1985 rests on the solitary testimony of Jayaprakash. The lower court has found corroboration to the statement of Jayaprakash Sharma from the order passed on 6-7-1985. Actually this order accordingly to me, supports the case of the defence than the case of the prosecution. It is manifest that the order dated 6-7-1985 was not an order passed in favour of Jayaprakash Sharma and Jayaprakash Sharma in para 22 of his statement has clearly stated that he was unhappy with the order passed by the R. T. O. on the note sheet of Dwivedi. He also admits that after reading the order passed by the R. T. O. on 6-7-1985 it occurred to him that the accused persons should be trapped. Now as regards the payment of Rs. 1000/-, as stated earlier, there is no mention in the FIR that the amount was to be paid in instalments i. e. Rs. 1000/- to be paid on 6-7-1985. Secondly although other clerks were present in the office, but the prosecution has not tried to examine any of the clerks to show that the amount was paid to Dwivedi. As such it is hightly improbable that the complainant shall pay Rs. 1000/- to Shri Dwivedi for getting an order which not of his liking and which actually actuated him to get the trap laid. As such this fact is also not found proved. ( 23 ) FURTHERMORE there is no charge to this effect that Rs. As such it is hightly improbable that the complainant shall pay Rs. 1000/- to Shri Dwivedi for getting an order which not of his liking and which actually actuated him to get the trap laid. As such this fact is also not found proved. ( 23 ) FURTHERMORE there is no charge to this effect that Rs. 1000/- was paid as illegal gratification to Dwivedi or Qureshi on 6-7-1985. Actually there is no charge pertaining to deinand dated 3-7-1985 also. Furthermore this fact does not find place in the panchanama Ex. P2 also. As such I held that the finding of the lower court on this point is also erroneous and is not based on the proper appreciation of the evidence. ( 24 ) AS regards the incident of 8-7-1985 the complainant has stated that he after loding the FIR gave Rs. 1200/- to the officers, who prepared a panchanama put the phinaphthaline powder on the notes and after the formalities proceed to the R. T. O. Office where he was accompanied by a Virendra Sharma and one constable Babulal Pare and then all the three went to the R. T. O. Office. There the complainant gave Rs. 1200/- to Dwivedi. Dwivedi wanted to go to the office of the R. T. O. Qureshi but near the counter, the two constable of the police caught hold of Dwivedi. He had given the agreed signal to the police party upon which they reached the spot. When the trap party gave their introduction to Dwivedi, Dwivedi dropped the notes which were in his hand, on the ground, and thereafter necessary fromalities were completed and the hands of Dwivedi was washed which turned pink. In cross-examination he states that one Joshi Babu was also in the room when he gave Rs. 1200/- to Dwivedi. He had given the amount in the left hand of Dwivedi. There is a counter of the Accountant near the office of Qureshi and the police party caught hold of Dwivedi near the counter. He denies this fact that the trap party had asked Dwivedi about the bribe and he had refused. He says that in Ex. P3 portion marked 'b to B' is wrongly written in the panchanama. Both the hands of Dwivedi were dipped in the solution. The notes were scattered because they were thrown on the ground. He denies this fact that the trap party had asked Dwivedi about the bribe and he had refused. He says that in Ex. P3 portion marked 'b to B' is wrongly written in the panchanama. Both the hands of Dwivedi were dipped in the solution. The notes were scattered because they were thrown on the ground. Now in the examination in chief this witness has stated that after taking the money Dwivedi had gone in the room of Qureshi. ( 25 ) P. W. 5 Virendrakumar Sharma, who is said to have accompanied this witness with the trap party, states that Jayaprakash Sharma went in the office and he stood on the stair case. After some time Jayaparakash Sharma came out and he said that he has to go out and give a signal. Thereafter Jayaprakash went out and gave signal. When he reached he found that two police persons were holding the hands of Dwivedi and thereafter memo etc. were prepared. This witness was also declared hostile and cross-examined. During cross-examination he stated that the complainant had given the notes to Dwivedi and then made a signal. In the cross-examination by the accused persons he has stated that when he reached all the notes were on the table and the memo was being prepared. He further admits that before him no demand was made by accused Dwivedi for money from Jayaprakash Sharma and he also admits that before him no money was given by Jayaprakash Sharma to Dwivedi. He is not in a position to say whether because of catching hold of the hands of Dwivedi by the police personnel the colour of the water in which his hands were washed became pink. He further states that when the Vigilance people asked Dwivedi whether he had accepted the money Dwivedi denied. When he reached the office he found in the verandah accused Dwivedi and the two police constables holding his hands. The signal was given by himself and Jaya Prakash. As such this witness, who is an independent witness, does not support the testimony of Jayaprakash about Dwivedi, accepting the bribe. ( 26 ) P. W. 7 Vithal Rao is the Head Constable of the Vigilance Department and he supports the prosecution story about catching hold of Dwivedi when the notes were in his hands. As such this witness, who is an independent witness, does not support the testimony of Jayaprakash about Dwivedi, accepting the bribe. ( 26 ) P. W. 7 Vithal Rao is the Head Constable of the Vigilance Department and he supports the prosecution story about catching hold of Dwivedi when the notes were in his hands. According to him he had caught hold of the left hand of Dwivedi and right hand was caught hold by Pare and when the D. S. P. and the gazetted officer reached the spot. Dwivedi open his grip of his hand and spilled the notes on the ground. Thereafter the gazetted officer lifted the notes which were lying near the feet of Dwivedi and thereafter Panchanama was prepared. According to this witness he neither heard what words were exchanged between Dwivedi and Jayaprakash Sharma and he also had not seen the actual exchange of the notes. ( 27 ) IN this respect the evidence of the gazetted officer Shri Karansingh Rathore (P. W. 10) is very important who accompanies the trap party as an independent witness being a gazetted officer. Shri Rathore in his examination in chief states that when he reached the spot he found that the two constables had caught the hands of Rajendra Dwivedi and the accused had thrown the notes on the floor upon which this witness told him to lift the notes whereupon Dwivedi Babu lifted the notes from the ground. This witness was categorically asked as to how the whole incident took place and in examination in chief itself this witness states that first of all when he reached the place he found that two constables had caught hold of the hands of the accused Dwivedi. Thereafter Dwivedi lifted the notes and then he took the notes from the hands of the accused and counted them. Thereafter the hands of Dwivedi Babu were washed in Carbonate solution. In cross-examination this witness states that although he was asked to hear the conversation between accused and the complainant and to see what transpired between them, but he did not see as to who gave the money to whom and what talks took place between them (para 4 of the statement ). He further states that the actual trap was laid for Qureshi, but Qureshi was not arrested on the same day. Why he was not arrested he does not know. He further states that the actual trap was laid for Qureshi, but Qureshi was not arrested on the same day. Why he was not arrested he does not know. When he reached he found Pare and Vithal Rao were holding the hands of Dwivedi and the notes were on the ground, he again states that when he reached the notes were not on the ground. Then he relies from his earlier statements and states that he had seen the notes on the ground when he reached there. He has also stated that he had not asked Dwivedi to lift the notes. From his statement also it appears that he and Rajnath (P. W. 12) had reached the spot simultaneously. According to me from the evidence of Shri Rathore, the prosecution story falls to the ground completely. From the statements of this witness it is manifest that although he was entrusted with the job of seeing the transaction, hear the talks between the parties, but he did not do so. But when he reached the spot he found the constables holding the hands of accused Dwivedi and the notes were lying on the ground and thereafter he asked the accused to pick up the notes upon which he picked up the notes. He has relied from the earlier statement of making accused Dwivedi to pick up the notes in his cross-examination but this fact would not make any material difference. At the most his testimony on this point shall be held to be unreliable. ( 28 ) SIMILARLY the independent witness P. W. 5 Virendra Kumar also does not support the statement of the complainant that the notes were given to Dwivedi. According to him actually Jayaprakash Sharma after entering the office came back outside the office and told this witness that he has to give a signal and thereafter the signal was given. As such this witness also does not support the testimony of the complainant and from the statement of Shri Karansingh Rathore, who is a gazetted officer it is manifest that when he reached there the notes were lying near the feet of the accused and both the constables were holding the hands of accused Dwivedi. As such this witness also does not support the testimony of the complainant and from the statement of Shri Karansingh Rathore, who is a gazetted officer it is manifest that when he reached there the notes were lying near the feet of the accused and both the constables were holding the hands of accused Dwivedi. ( 29 ) AS regards the turning of the water into pink after the hands of accused Dwivedi were washed, this fact also does not support the prosecution case in any way for the simple reason that although Vithal Rao and Pare had caught hold of the hands of the accused, but the hands of Vithal Rao and Pare were not got washed. Therefore, if cannot be said with certainty that the phenolphthalein powder reached the hands of the accused through the notes only and not through the hands of these two persons who caught hold of his hands. Furthermore according to Shri Karan Singh he had asked the accused to pick up the notes and as such in that event, the phenolphthalein powder on the notes could have easily been transferred to the hands of the accused. As such the evidence about the change of colour as a result of the dipping of the hands of the accused in the solution is also of no consequence. ( 30 ) WHEN I view the totality of the circumstances I find that the fact that there was any talk of exchange of illegal gratification between accused Qureshi and the complainant is not proved, but rather stands disproved from the documentary evidence. Thereafter the giving of Rs. 1000/- to Dwivedi also is not proved and above all when the order was passed on 6-7-1985 against the wishes of the complainant then where was the occasion to give the remaining amount to Qureshi or Dwivedi for having passed the unfavourable order against the wishes of the complainant. It has also to be borne in mind that the relation of the complainant with the R. T. O. were not cordial, much less of mutual confidence. It has also to be borne in mind that the relation of the complainant with the R. T. O. were not cordial, much less of mutual confidence. The complainant was undisputedly aggrieved against the R. T. O. and had also made a complaint in the third week of June to the Home Secretary against the R. T. O. and this fact was brought to the notice of the R. T. O. by the complainant, then it appears highly improbable that only in the first week of July i. e. a few days after. ( 31 ) IT may also be noted that the actual trap was laid by the party against the R. T. O. and it has come in the evidence that accused Dwivedi was proceeding towards the room of the R. T. O. for giving the money and he was caught in the way. The Investigating Authorities have not explained as to why they did not wait for the money to be given to the R. T. O. Qureshi. Furthermore Qureshi was available in the office according to the prosecution story itself. When the proceedings of the trap were recorded. But despite the fact that his name appeared in the FIR and trap was laid against him he was not arrested by the authorities. Such an attitude of the authorities in not arresting the accused Qureshi when available though named in the FIR and the trap being laid against him casts suspicion in the investigation and the FIR about which a grievance is made that it is ante dated and there is an overwriting on the date i. e. figure 9 has been substituted for figure 8. In this respect the learned counsel for the appellant had cited a Division Bench judgment of this court in Dheer Singh v. State of M. P. , 1988 MPLT 241 wherein it has been held by this Court that non arresting of accused immediately after lodging of FIR wherein he has been named, causes serious doubt as to veracity of the first information report itself and the whole investigation. Therefore, on this ground also the prosecution story becomes hightly doubtful ( 32 ) IN view of the aforesaid the prosecution story appears to be highly improbable and the possibility of concoction cannot be ruled out. Therefore, on this ground also the prosecution story becomes hightly doubtful ( 32 ) IN view of the aforesaid the prosecution story appears to be highly improbable and the possibility of concoction cannot be ruled out. The judgment of the lower court is based mainly on the surmises and conjectures without the proper appreciation of the evidence on record. Therefore, the judgment of the lower court cannot be allowed to be sustained. ( 33 ) IN the result both the appeals deserve to be allowed. They are accordingly allowed. The conviction and sentence of the appellants are set aside and they are acquitted of the charges framed against them. The accused appellants are on bail. Their bail bonds shall stand discharged. Fine if paid shall be refused to the appellants. Appeals allowed. .