JUDGMENT - SALDANHA M.F., J.:—The appellant, at the relevant time a Senior Police Inspector attached to the Azad Nagar Police Station at Malegaon in Nashik District, was put on trial before the learned Special Judge, Nashik, on a corruption charge. It was alleged that on the night of 24-6-1986, pursuant to a trap that was laid by the Anti-Corruption Bureau, he demanded and accepted a sum of Rs. 200/- from the complainant Naim Nazim Ansari. The prosecution alleges that one Mohamed Hanif had lodged a complaint at the Police Station stating that on 13-6-1986 at about 9 p.m. two persons, namely, Iqbal and the complainant, Naim, had attacked him, abused him and threatened him. He had alleged that offences punishable under sections 323, 504 and 506 of the Indian Penal Code had been committed. Pursuant to this complaint, which was treated as a non-cognizable complaint and recorded in the non-cognizable complaint register, which fact is of some significance, the Police Inspector sent for the complainant, Naim. The sister of Naim by name Farida is a practising advocate and the record indicates that she used to regularly appear on behalf of the main accused Iqbal. It further appears that this Iqbal was one of the persons often on the wrong side of the law and that there appears to be a history of hostility between him and Mohamed Hanif who used to lodge complaints against Iqbal who, in turn, used to be released by Farida, the sister of the complainant, Naim. 2. When the Police Constable Bhavsar came to the residence of Naim on 14-6-1986 and informed him that he was required to attend the Police Station, Farida sent the Police Constable back on the false ground that Naim was not in the house. She thereafter telephoned the Police Station and spoke to the Accused who was the Police Inspector incharge. Subsequently, Farida contacted the Public Prosecutor at the Court by the name Mahajan whose orderly a Police Constable by name Tisge was asked to procure a copy of the complaint, obviously because Farida desired to know as to what the nature of the charge was against her brother. Tisge got a copy of the complaint from the Police Station on the ground that the Public Prosecutor had asked for it and this was handed over to Farida. Tisge got a copy of the complaint from the Police Station on the ground that the Public Prosecutor had asked for it and this was handed over to Farida. The Public Prosecutor also had occasion to enquire from the accused about the complaint. Subsequently, the local Corporator by name Qureshi had met the accused who, in turn, told him that he should ask Naim to attend the Police Station in connection with the non-cognizable complaint, that nothing would happen to him and that the Police only required him for the purpose of obtaining his say. On 22-6-1986, Corporator Qureshi accompanied Naim to the Police Station and met the accused. The record further shows that as is customary in such cases that the accused was warned not to involve himself in acts that may constitute a breach of peace and that he was subsequently allowed to go. It is, however, the case of the complainant, Naim, that in the course of the meetings that he had with the accused that the Police Officer had threatened him with arrest that he had also told him to meet him alone and that on 23-6-1986 he had demanded Rs. 200/- from him in order to forebear from placing him under arrest. Naim is alleged to have stated that he did not have the money and that he would bring it the next day. On the morning of 24-6- 1986, he approached the Anti-Corruption Bureau Authorities at Nashik and lodged a complaint. The matter was taken up by the Additional Superintendent of Police. Anti-Corruption Bureau, Nashik Division, Shri Kasharam Thore, who recorded the First Information Report, sent for the Panchas and thereafter prepared the pre-trap Panchanama. The currency notes totalling Rs. 200/-, of which the numbers were noted, were treated with anthracene powder and these were put in the shirt pocket of the complainant. One of the Panchas by name Jamaloddin was instructed to accompany the complainant to the Police Station and he was specifically instructed not to leave the place because it was from there that he had to see and hear everything that transpired. In keeping with the legal requirement, the complainant and the Panch had both been told that the money should only be parted with on the Accused making a demand for the same. The raiding party thereafter left for Malegaon. What followed thereafter is routine. In keeping with the legal requirement, the complainant and the Panch had both been told that the money should only be parted with on the Accused making a demand for the same. The raiding party thereafter left for Malegaon. What followed thereafter is routine. The complainant and the Panch are alleged to have met the accused and some talk took place. The accused asked for the money which was handed over to him and he counted it and thereafter put it into his wallet which was taken out from his left trouser pocket and was thereafter replaced in the same pocket. The complainant came out of the room and wiped his face with the handkerchief, which was the pre-arranged signal, whereupon the raiding party rushed in and apprehended the accused. It is alleged that on being checked with the ultra-violet lamp that anthracene powder was noticed on both the hands of the Accused as also on one side of his wallet. He was asked to produce the money in question which was produced by him from his wallet and the currency-notes totalling Rs. 200/-, which had been treated with anthracene powder, were recovered from the wallet under a Panchanama. On completion of the investigation, a complaint was filed and the accused was put on trial before the learned Special Judge, Nashik. The learned Special Judge accepted the evidence in respect of both heads of charge, that is to say, the one under section 161 of the Indian Penal Code and the one under section 5(2) read with section 5(1)(d) of the Prevention of Corruption Act, and convicted the appellant-accused. He was awarded a sentence of rigorous imprisonment for one year and to pay a fine of Rs. 2,000/-, in default, to suffer rigorous imprisonment for two months on each count. It is against this conviction and sentence that the present appeal has been directed. 4. I need to mention at this stage that the evidence of the Panch in this case, who is an independent witness and, to my mind, the star witness for the prosecution, is near perfect. This evidence is corroborated by the post-trap Panchanama and by the evidence of the Police Officer, the latter is not of much consequence because the Police Officer was not present at the time when the trap took place. This evidence is corroborated by the post-trap Panchanama and by the evidence of the Police Officer, the latter is not of much consequence because the Police Officer was not present at the time when the trap took place. The learned Special Judge has held that the charges are proved because the evidence of the complainant, Naim, again does not appear to be discardable on the basis of contradictions or serious infirmities. On a scrutiny of the judgment, therefore, it does appear that this is almost what one would term as a shut case. A careful dissection of the evidence produced before the Court, however, and a meticulous scrutiny of the some of the crucial but tell-tale circumstances, does indicate otherwise. 5. Shri Bhonsale, learned Counsel appearing on behalf of the appellant accused, has started by pointing out that this being a corruption charge the gravamen of the offence which the prosecution is required to establish beyond reasonable doubt is not merely that a demand for some money was made and that the money was recovered from the accused, but, more importantly, that the amount in question comes within the legal definition of the term “illegal gratification”, and secondly, that if it is termed as “illegal gratification”, the consideration ought to be that the public servant in question did or refrained from doing an official act for which purpose the amount was received by him. It is Shri Bhonsale's grievance that these important ingredients of the law have been overlooked by the trial Court. Towards this end, he has pointed out to me certain significant facts that emerge from the record. In the first instance, the starting point of the prosecution case is the complaint dated 13-6-1986 (Exhibit 18). Even though the complainant alleges all sorts of instances of considerable gravity, a mere reading of the complaint will indicate that it was nothing more than a storm in a tea - cup and, therefore, the Police very rightly recorded the complaint in the non-cognizable register. It was obvious that this was one more of the complaints which Mohmed had lodged pursuant to his running battle with the Accused and Iqbal and in order to maintain peace in the area the obvious option open to the Police was to summon all the parties concerned and administer a severe warning to them. It was obvious that this was one more of the complaints which Mohmed had lodged pursuant to his running battle with the Accused and Iqbal and in order to maintain peace in the area the obvious option open to the Police was to summon all the parties concerned and administer a severe warning to them. The fact that a non-cognizable complaint had been registered is of immense importance because it was a non-cognizable matter in which neither of the accused could be placed under arrest. Had, the Police decided to treat this as a cognizable offence, there would have been no need for constable Bhavsar to have been sent to the residence of the complainant, Naim, Shri Bhonsale emphasised the fact that even though the complainant, Naim, had merely been called to the Police Station, his sister Farida sent the constable back with a false excuse that he was not at home and that this was done with the sole purpose of ensuring that she was liable to find out the nature of the complaint. The record indicates that Farida, in her capacity as an advocate, thereafter contacted the Public Prosecutor, Shri Mahajan, who, in turn, not only obtained a copy of non-cognizable complaint but spoke to the appellant-accused also. What is reiterated by learned Counsel is that the accused was fully aware of the fact that the sister of Naim was a regular practising advocate and, furthermore, that she was not well-disposed towards the accused who had virtually taken up arms against her by instituting certain Chapter proceedings just six months earlier in December 1985 which case was pending in the Court and in which proceedings Farida and her family members were shown as accused. Shri Bhonsale contends that in this background and in a situation where another advocate to whom the accused is subordinate, namely, the Public Prosecutor, has enquired about the matter, had sent a copy of the non-cognizable complaint and had spoken to the accused and verified that there was no question of arrest of Naim that howsoever corrupt a Police Officer he might have been that he just would not have dared to have made any illegal demand or, for that matter, to have extorted money from the complainant by threatening him, given this background. 6. 6. Apart from this, Shri Bhonsale reinforces his argument by alluding to another aspect of the case which is also admitted by the complainant. The local Corporator by name Qureshi, who appears to be friendly with the family of the complainant, Naim, and Farida, told the complainant that the Accused had met him and informed him that Naim was requested to come to the Police Station and that he has clarified that nothing would happen to him. Regardless of whether Naim felt confident or not, he got the Corporator to accompany him to the Police Station on 23-6-1986 which fact is admitted. Thereafter there is an endorsement in the non-cognizable register that the Accused was warned not to involve himself in acts that would give rise to breach of peace and his signature was taken on 23-6-1986. What learned Counsel points out from this record is that, in the first instance, there never was nor did there exist any scope for placing Naim under arrest. Secondly, regardless of whether the Accused wanted to convert the non-cognizable complaint into a regular crime the fact of the matter was that he had not done so and that he had virtually closed that complaint on 23-6-1986 after obtaining the signature of the Accused. Shri Bhonsale, therefore, submits that it is virtually preposterous on the basis of this record for the prosecution to even allege that after the entire matter was completed and the Accused was powerless to do anything officially against the complainant that he could have threatened him with an arrest and could have demanded Rs. 200/- which were to be paid on the next day. Testing this demand even on the point of probabilities and even assuming that the Accused was so corrupt and so bold that regardless of the background of the case that he would still have demanded gratification, it would still stand to reason that the Accused would not have concluded the matter until the money was paid. It hardly seems plausible, probable and possible that the Accused would have still told the complainant to come on the next day with such a paltry amount. In a lighter vein, Shri Bhonsale even submits that the Accused, who was a Senior Police Inspector of 27 years' standing and the Police Inspector of the Azad Nagar Police Station, that he should be credited with having slightly higher standards. 7. In a lighter vein, Shri Bhonsale even submits that the Accused, who was a Senior Police Inspector of 27 years' standing and the Police Inspector of the Azad Nagar Police Station, that he should be credited with having slightly higher standards. 7. Shri Palekar, the learned A.P.P., has pointed out to me that the complainant, Naim, is a person coming from a modest background, that obviously he was very much afraid when the Police were sent to call him, that he stayed away from the Police Station for this reason and that regardless of the fact that his sister was an advocate that he was still not confident because the Accused had on an earlier occasion even taken action against his sister who was an advocate. He states that admittedly the Accused did not misbehave in the presence of the Corporator, Shri Qureshi, but that he called Naim on the next day and asked him to come alone. It was on this occasion that the money was demanded. Shri Palekar further submits that an ordinary person like Shri Naim would not have dared to have gone to the Anti-Corruption Authorities and lodged a false complaint against an officer of the rank of Inspector of Police unless a demand had, in fact, been made. He further submits that if the demand had not been made, the Accused would not have accepted the money on the evening of 24-6-1986 when the complainant handed it over to him and that the Court cannot reject the unimpeachable evidence of the trap that has been adduced by the prosecution. Shri Palekar pointed out that there are virtually no infirmities in the evidence of Panch Jamaloddin and that the Panchanama also, which is a contemporaneous record, corroborates his evidence and that this material fully fits in with the complaint made by the complainant. Shri Naim, and, therefore, regardless of the unusual facts of the case and the various probabilities argued by the other side that the charge should still be held to have been proved. 8. This submission advanced by the learned A.P.P. does, undoubtedly, appears convincing, but as I shall presently illustrate, it is not free from a law. For this purpose, it is necessary to analyse the cardinal ingredients of the charge both under section 161 of the Indian Penal Code and section 5(1)(d) of the Prevention of Corruption Act. 8. This submission advanced by the learned A.P.P. does, undoubtedly, appears convincing, but as I shall presently illustrate, it is not free from a law. For this purpose, it is necessary to analyse the cardinal ingredients of the charge both under section 161 of the Indian Penal Code and section 5(1)(d) of the Prevention of Corruption Act. The essence of the accusations is that the gratification must be proved to have been “tainted” and secondly, and more importantly, that it must be a consideration for corrupt activity in relation to an official act. It needs to be illustrated here that the popular misnomer is often prevalent that if the receipt of a certain amount of money by a public servant is proved that ipso facto it should be presumed to be “tainted” and the sequitur is that it was in relation to a corrupt practice in connection with an official duty. These consequences do not necessarily follow because there are cases in which the receipt of money is capable of explanation. In a criminal trial, the accused is entitled or rather he has the prerogative of maintaining silence. In such circumstances, it is for the prosecution to prove its case all the way. Going step by step, therefore, it will have to be established that on the facts of this case there existed a particular official act which the accused did or did not do because of the money that has been asked for by him. In this regard, I have already analysed certain crucial aspects of the record and have demonstrated that there existed only one complaint against Naim which admittedly was a non-cognizable complaint and the law did not permit the Accused to arrest the complainant even if he wanted to. The argument canvassed by the learned A.P.P. is that the Court should proceed on the assumption that Naim was unaware of the intricacies of the law which having regard to Naim's background, I seriously doubt, and that he was, therefore, led to believe that the accused as a Police Officer could have arrested him if he did not part with the money. The matter is not that simple and this argument is also of not much consequence because we have on record an admission from the complainant Naim himself who states that the Corporator Qureshi had told him that he was only wanted for a statement and that nothing would happen to him and that this, in turn was what the accused has told the Corporator. The conduct of the Accused also supports this version because he has taken the statement from Naim and obtained his signature and effectively closed that complaint. In these circumstances, therefore, it would be impossible for me to conclude, even though the learned A.P.P. strenuously urges that it must be done, that the accused at any time either could have or did threaten the complainant, Naim, with arrest. If this be the position, to my mind, the prosecution has failed to establish that there existed any official act which the Accused could have done or refrained from doing in consideration of the payment. I need in this context to once again record here that the prosecution, for the reasons best known to itself, did not examine the central character in this strange drama, namely, Advocate Farida. This witness, to my mind would have been of utmost importance in establishing the complainant's charge that the Accused was motivated by corrupt desire. The Accused has in his statement, pointed out that Farida harboured hostility towards him in so far as he was required to take the unpleasant step of instituting chapter proceedings against her and her family regardless of her status as a professional. A glance through the record will indicate that Farida, even though she is an advocate, is not necessarily entitled to a halo. However, the non-examination of this witness and the non-examination of the Corporator. Shri Qureshi, to my mind, have created material lacunae in the prosecution case for which it will have to suffer. 9. It is essential for this Court to also take cognizance of one other aspect of some significance in relation to the main prosecution witnesses. After the amendment of section 165 of the Indian Penal Code, it is now well-settled law that the complainant in corruption cases stands on the same footing as an accomplice. 9. It is essential for this Court to also take cognizance of one other aspect of some significance in relation to the main prosecution witnesses. After the amendment of section 165 of the Indian Penal Code, it is now well-settled law that the complainant in corruption cases stands on the same footing as an accomplice. It is, therefore, of extreme importance that the evidence of the complainant be fully corroborated by an independent witness and it is for this reason that the independent Panch of some status is asked to accompany the complainant and the Anti-Corruption Bureau Officers had very rightly instructed the Panch in this case to be with the complainant at all times and to see and hear everything that was happening. Shri Naim states in his evidence that when the talk of the money came up that the accused expressed a desire for privacy and, therefore, instructed the Panch to leave the room. Obviously when a Police Officer instructs a person of the status of the Panch to leave the room, he would obey. Shri Naim tries to get over this inconvenient problem by stating that the transaction took place a split second after the Panch got up and that he was still a few feet away within hearing and seeing distance. Panch Jamaloddin is not able to cover up so well, but he still made an effort to say that he was somewhere near the door and that he turned round from that place and watched the transaction. If the Accused had asked the second person to leave the room, it is obvious that he did not want any third party around and plain common sense will indicate that he would not have done anything until that person was outside the room. The Panch again would not have dared to have hovered around as he stays somewhere behind the curtain. In these circumstances, the inevitable conclusion is that the Panch could not have seen the most important and material part of the transaction and that the evidence of both the witnesses in this regard cannot be accepted. What the Police Officer has recorded in the Panchanama is obviously the basis for their deposition, but that does not necessarily represent the truth. It is under these circumstances that the evidence with regard to the trap becomes unacceptable. What the Police Officer has recorded in the Panchanama is obviously the basis for their deposition, but that does not necessarily represent the truth. It is under these circumstances that the evidence with regard to the trap becomes unacceptable. To my mind, having regard to the background of this case, there is ground to believe that Shri Naim went to the Anti-Corruption Bureau Authorities with a totally false charge with the object of involving the Accused. In this regard, it is the normal practice for the Anti-Corruption Bureau Authorities when such complaints are received to take some steps to verify the correctness of the accusations before straightway proceeding. That requirement was by passed in this case and there is no explanation for it. Under these circumstances, there is every possibility that the Anti-Corruption Bureau Authorities believing Shri Naim probably being unaware of his own background that they proceeded with the attempt to lay a trap and having taken the trouble decided to go ahead with the Panchanama and accept the allegation that the money was received by the Accused. It is unnecessary for me to conjecture with regard to various possibilities because the totality of the record itself, to my mind, would not justify a conviction and, therefore, the other aspects are secondary. 10. Having regard to what has been pointed out above, I consider it essential in view of the regularity with which in corruption cases careers of public servants are sought to be irretrievably harmed and destroyed, to sound a word of caution as far as the manner in which actions of the present type are instituted. The consequences to a public servant in these cases are extremely grave and the Supreme Court while dealing with one such situation in the case of (P.Sirajuddin v. State of Madras)1 ,1970 S.C.C. (Cri.) 240, has observed as follows : “Before a public servant. whatever be his status is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. whatever be his status is publicly charged with acts of dishonesty which amount to serious misdemeanour or misconduct of the type alleged in this case and a first information is lodged against him, there must be some suitable preliminary enquiry into the allegations by a responsible officer. The lodging of such a report against a person specially one whom like the appellant occupied the top position in a department, even if baseless, would do incalculable harm not only to the officer in particular but to the department he belonged to in general. The means adopted no less than the end to be achieved must be impeccable.” It would also be useful having regard to the technical aids that are now available universally, for the Anti-Corruption Bureau Authorities to ensure that there is a reliable recording of the talks that take place in the course of traps and, more importantly, to retain photographic evidence of the allegations in relation to the finding of anthracene powder. These are the two crucial aspects of the trap and one cannot always rely on memory or clumsily worded Panchanamas that are recorded sometime thereafter and it would, therefore, be useful for the authorities concerned to take note of these suggestions. 11. On a careful consideration of the record, to my mind, the conviction in the present case is unsustainable. The appeal is accordingly allowed. The convictions and sentences awarded by the trial Court are set aside. The fine, if paid, is directed to be refunded to the Accused. The bail bond of the Accused to stand cancelled. Appeal allowed. -----