JUDGMENT A. S. Tripathi, J. 1. THE appeal and revision arise out of the same judgment and order dated 21.12.1988 passed by the then Special/Sessions Judge, Naini Tal whereby the appellant was convicted under Section 161, I.P.C. and sentenced to two years rigorous imprisonment and to pay a fine of Rs. 5,000 in default of payment of fine the appellant was directed to undergo rigorous imprisonment for further period of four months. THE appellant Ram Saran Das was further convicted under Section 5(1) clause (d) read with Section 5 (2) of the Prevention of Corruption Act, and was sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 7,000. l!n default of payment of fine, he was directed to undergo rigorous imprisonment for a further period of four months. THE sentences were directed to run concurrently. 2. THE appellant preferred this appeal against the aforesaid judgment and order on the grounds that the judgment was perverse and was against the evidence on record. On the other hand, the complainant Dr. Ajay Pal Singh filed a criminal revision referred above for enhancement of the sentence to three years R.I. and to impose a fine of Rs. 20,000 upon the appellant Ram Saran Das. The facts of the case are that the appellant Ram Saran Das was working as Regional Transport Officer. Kathgodam in the district of Nainital. Complainant Dr. Ajay Pal Singh (P.W. 10) claims to be the President of Kichha- Khatima Private Bus Operators Association. The Private Bus operators were operating their private buses on Kichha-Khatima on Mala Ghat route-another route in the District of Nainital. It was alleged that the route between Nanhak Sagar to Khatima (14 Kms) was nationalised. There were restrictions for plying the buses on that nationalised route. The Bus Operators were prohibited to ply their buses on the nationalised route. It is alleged that under the provision of U. P. Motor Vehicle Act, 1976, the operators started paying royalty to the state Government known as Administrative Operational Contract Charge (A. O. C. C.) to ply their buses on that sector. It is alleged that a sum of Rs. 310 was paid for plying each stage-carriage over that sector, Later on the Bus operators preferred a Special Leave Petition before Hon'ble Supreme Court in February 1982 and also obtained the stay orders Ext. Ka-1 and Ka-2 Dr. It is alleged that a sum of Rs. 310 was paid for plying each stage-carriage over that sector, Later on the Bus operators preferred a Special Leave Petition before Hon'ble Supreme Court in February 1982 and also obtained the stay orders Ext. Ka-1 and Ka-2 Dr. Ajay Pal Singh handed over the orders on 15.12.1982 to the appellant. Thereafter no obstructions were caused in plying of buses on that route. However, the R. T. O. Katgodam did not pass any final order for renewal of the permits. Only the temporary permits were granted for four months. This situation continued till 1984. 3. APPELLANT Ram Saran Das took over charge in July, 1983. It is alleged that in April, 1984 he started telling the aforesaid bus operators that he will stop the plying of buses without permits. He was told that stay orders might have been obtained even from Hon'ble Supreme Court. He would not obey this order. In May, 1984, some stage-carriages were challaned by the appellant. Then the Bus operators lead and had talks regarding granting of temporary permits. 4. IT is further alleged that the appellant even after persuasion did not allow the plying of buses on that route, even under the orders of the Hon'ble Supreme Court unless he was paid Rs. 20,000 as illegal gratification. Dr. Ajay Pal Singh (P.W. 10) claims that after this talk, he assured the appellant that he will talk to the Bus operators and will arrange the money. IT is alleged that the bus operators were not willing to pay amount to the appellant, rather they decided to get the appellant Ram Saran Das trapped while accepting bribe. On 20.7.1984, Dr. Ajay Pal Singh met the appellant at his residence and claims to have sought a weeks time to manage the money. The appellant is alleged to have asked Dr. Ajay Pal Singh (P.W. 1) to bring the money on 26.7.1984. 5. AFTER that, it is alleged that Ajay Pal Singh made a complaint to Superintendent of Police, Vigilance and submitted the complaint Ext. Ka-3. On 26.7.1984, Dr. Ajay Pal Singh again met the appellant at his residence and sought further time for paying the money. It is alleged that the appellant then directed him to bring the money on 31.7.84. Ajay Pal Singh claims to have met the Vigilance Officer at Nainital and informed these facts. Ka-3. On 26.7.1984, Dr. Ajay Pal Singh again met the appellant at his residence and sought further time for paying the money. It is alleged that the appellant then directed him to bring the money on 31.7.84. Ajay Pal Singh claims to have met the Vigilance Officer at Nainital and informed these facts. He was asked to come with the money on 30.7.1984 to be paid as bribe. It is alleged that on 30.7.1984 Ajay Pal Singh collected Rs. 2,000 and went to Nainital. The currency notes of different denominations were arranged and a note Ext. Ka-4 was prepared. Thereafter Sri Deo Raj Nagar (P.W. 12) S. P. Vigilance asked Deputy S. P. Vigilance, Harendra Singh Sirohi (P.W. 2) to lay down the trap. Deputy Superintendent of police. Harendra Singh Sirohi was duly authorised in writing vide Ext. Ka. 4. 6. THE Deputy Superintendent of Police prepared the necessary papers and asked Ajay Pal Singh to come at Railway Station Kathgodam between 9.00 a.m. and 9.30 a.m. on 31.7.1984. On 31.7.1984 at 9.15 a.m., Ajay Pal Singh reached at the railway station. He accompanied Sri Harendra Singh Sirohi (P.W. 2) and Inspector Joshi (P.W. 4) alongwith two other Inspectors and Constables. They started in a Jeep. Two witnesses were also brought. Deputy S. P. Sirohi read out the papers to the witnesses and they all went to the residence of the appellant. Phenolphthalein powder was applied to the currency notes. A glass was taken out and was filled with water. THE necessary solution was prepared. All the proceedings were completed by 12 noon. It was planned than the trap be laid between 2 p.m. and 2.30 p.m. at the residence of the appellant. They all assembled at the Railway Station at 2 p.m. They all reached in two parties at the house of the appellant at about 2.15 p.m. Ajay Pal Singh went upstairs and entered into the residence of the appellant. Other persons followed him and stood near the gate on the first floor. Appellant Ram Saran Das was sitting on a chair in his room and was reading a book facing towards east. Ajay Pal Singh while entering the room told the appellant that he brought Rs. 20,000 as demanded. Ajay Pal Singh demanded that now the plying of buses be not interrupted and temporary permits should be granted. Appellant Ram Saran Das was sitting on a chair in his room and was reading a book facing towards east. Ajay Pal Singh while entering the room told the appellant that he brought Rs. 20,000 as demanded. Ajay Pal Singh demanded that now the plying of buses be not interrupted and temporary permits should be granted. It is alleged that appellant told Ajay Pal Singh that everything would be alright. Ajay Pal Singh claims that he paid Rs. 20.000 to the appellant Ram Saran Das who accepted the currency notes in both hands. It is further alleged that he enquired as to whether the amount was Rs. 20,000. It is further alleged that the appellant checked the notes and thereupon, the Deputy S. P. Sirohi accompanied by other members of the trap raiding party and witnesses pounced upon the appellant disclosing his identity. Sri Sirohi took in his possession the currency notes from the hands of the appellant and compared their numbers. A solution of sodium carbonate was prepared in a glass of water and the hands of Ram Saran Das were dipped into the same. THE solution which was colourless turned pink. THE articles were duly sealed, recovery memo Ext. Ka-6 was prepared and signed by the witnesses. Signature of the appellant was also obtained. THE appellant was arrested and taken to the Police Station. A verbal report Ext. Ka-7 was lodged and a case was registered. The investigation was done by Deputy Superintendent of Police, Jaswant Singh (P.W. 16). The witnesses were examined, appellant was interrogated, necessary sanction for prosecution of the appellant was obtained on 17.5.1985 and thereafter, the chargesheet Ext. Ka-53 was submitted to the Court on 6.8.1985. 7. THE appellant was tried for the offence under Section 161, I.P.C. and Section 5 (2) of the Prevention of Corruption Act. 8. THE appellant pleaded not guilty and claimed that a false trap was managed on account of his strict vigilance over the plying of buses without permits. The prosecution in support of its case examined 16 witnesses. (P.W. 1) Ajay Pal Singh is the complainant, (P.W. 2) Deputy S. P. H. S. Sirohi had laid the trap, (P.W. 3) Bhuwan Chandra Pandey was another witness, (P.W. 4) Govind Ballabh Joshi, (P.W. 5), V. P. Singh is the competent authority who accorded sanction for prosecution. The prosecution in support of its case examined 16 witnesses. (P.W. 1) Ajay Pal Singh is the complainant, (P.W. 2) Deputy S. P. H. S. Sirohi had laid the trap, (P.W. 3) Bhuwan Chandra Pandey was another witness, (P.W. 4) Govind Ballabh Joshi, (P.W. 5), V. P. Singh is the competent authority who accorded sanction for prosecution. Constable Tika Ram (P.W. 6), Head Constable Irshad Ahmad (P.W. 7), Constable Ajab Singh (P.W. 8), H. C. Taradutt (P.W. 2), Virendra Pratap Singh (P.W. 10) and Ghan Shyam Bhat (P.W. 11) were in the trap party, (P.W. 12) Deo Raj Nagar is the Superintendent of Vigilance who had given permission of the trap, (P.W. 13) Khima Nand is another witness of the trap, (P.W. 14) Laikuddin is also another witness of the trap and (P.W. 15) Ram Naresh Yadav is said to be the public witness. (P.W. 16) Deputy S. P. Jaswant Singh had investigated the case and submitted the charge-sheet. 9. THE appellant Ram Saran Das denied the charges and stated that he was falsely implicated and a false trap was managed after the planning as instigated by Ajay Pal Singh who wanted that all the buses be plied on the nationalised route without0 permit. When the appellant did not allow the plying of buses without permits and referred the matter to the R. T. A. then Ajay Pal Singh and members of his association being aggrieved got this false trap laid down in collusion with the police against the appellant who was innocent. 10. LEARNED Special/Sessions Judge, Nainital after examining the evidence on record found the appellant guilty and convicted and sentenced him as aforesaid. Aggrieved by this judgment and order, the present appeal was preferred. Dr. Ajay Pal Singh has also filed the revision as mentioned above for enhancement of the sentence. 11. WE have heard learned counsel for the parties and scrutinised the record carefully. 12. Aggrieved by this judgment and order, the present appeal was preferred. Dr. Ajay Pal Singh has also filed the revision as mentioned above for enhancement of the sentence. 11. WE have heard learned counsel for the parties and scrutinised the record carefully. 12. NO doubt it was a case of trap laid down by the police authorities on the application of the complainant Ajay Pal Singh who was Chairman of the Transport Association as Kashipur, yet the material question raised by the learned counsel for the appellant is to whether there was any occasion for the appellant to demand any bribe in the circumstances of the case or it was a fake and managed trap on the initiative of Transport Association and their members and chairman just to teach a lesson to the appellant who was not allowing the plying of buses on the nationalised route without permits. The evidence and circumstances on this point are clear indication that in view of the orders passed by the Hon'ble Supreme Court, there was nothing left in the hands of the appellant to be done on the basis of which he could demand any bribe from the transporters. 13. WE now proceed to examine the evidence and circumstances on this crucial point. 14. IT has come in the evidence that the main dispute was regarding the plying of buses over the Kichha-Khatima Malaghat route which was nationalised. The dispute was regarding the plying of buses over the part of the nationalised route in respect of which litigation went up to the Supreme Court between the Bus Operators and Transport Authority. IT has come in the evidence of P.W. 1 Dr. Ajay Pal Singh that in all 34 buses of his association have been plying on Kichha Khatima Malghat Route on permanent permits. Initially there were 11 permits, later on 14 more permits were granted. Later on objections had been raised in respect of the nationalised route. The permits were curtailed and were confined only to Kichha Nanhak Sagar route. That matter was taken to State Transport Appellate Tribunal which validated the said 25 permanent permits upto Khatima with corridor restrictions regarding the nationalised route. Under the provisions of U. P. Motor Vehicles Special Provisions Act, 1976, the State Government started realising royalty for plying the buses on the nationalised sector from Nanhak Sagar to Khatima. That matter was taken to State Transport Appellate Tribunal which validated the said 25 permanent permits upto Khatima with corridor restrictions regarding the nationalised route. Under the provisions of U. P. Motor Vehicles Special Provisions Act, 1976, the State Government started realising royalty for plying the buses on the nationalised sector from Nanhak Sagar to Khatima. IT was alleged that passenger tax was paid regularly. The Operators thereafter challenged the payment of royalty which was known as A. O. C. C. by Special Leave Petition before Hon'ble Supreme Court. HONOURABLE Supreme Court passed stay orders Ext. Ka-1 and Ka-2 on record. In pursuance of the said stay orders passed by Hon'ble Supreme Court, the operators wen-; plying the buses without payment of A. O. C. C. In view of the said stay orders, the Regional Transport Officer had no authority to check the plying of buses. However, the complainant alleged that some renewal of permits were not made inspite of the stay order till April, 1984, and the appellant started causing obstructions to plying of buses on the nationalised section without permit Inspite of the stay order granted by the Hon'ble Supreme Court. 15. AT this stage, it was vehemently argued that when the operators were entitled to ply the buses even on the nationalised route without payment of A. O. C. C. there was no occasion for the appellant to demand A. O. C. C. or to obstruct the plying of buses on that route. In this way, there was no occasion for the appellant to demand any bribe from the operators on the said route. It was further argued that in view of the stay order passed by Hon'ble Supreme Court, there was nothing left in the hands of the appellant to harass the operators or to demand any bribe for anything to be done by him. There is much substance in this argument. 16. ONE of the Special Leave Petition was also decided by the Hon'ble Supreme Court in the year 1986. It is admitted by the P.W. 1 Sri Ajay Pal Singh that the royalty known as A. O. C. C. was deposited by them after 31st January, 1982. In view of this admission once royalty was deposited, the appellant was not left with any authority to obstruct the plying of buses on the said route, for any reason whatsoever. It is admitted by the P.W. 1 Sri Ajay Pal Singh that the royalty known as A. O. C. C. was deposited by them after 31st January, 1982. In view of this admission once royalty was deposited, the appellant was not left with any authority to obstruct the plying of buses on the said route, for any reason whatsoever. As such, we are constrained to find that in absence of any authority left with the appellant where was the occasion for him to demand any bribe and for what purpose. It was pointed out that Hon'ble Supreme Court in the case of Sumer Chand Sharma and another v. State of U. P. and another, 1986 SCC 264 has held that the bus operators who were holding valid permits on the date of nationalisation could be considered for renewal of permits even for overlapping part of the nationalised route. The Bus operators had already obtained stay order in respect of that route and were plying their buses without payment of A. O. C. C. as such we find that if any obstruction was caused by the appellant in plying of buses on the said route inspite of the stay order granted by the Hon'ble Supreme Court, he could be hauled for contempt. Further no complaint was made to any higher authority in this respect by any of the Bus Operators that inspite of the stay order, the appellant was obstructing the plying of buses on the overlapping nationalised sector of Nanhak Sagar Khatima Route. 17. IT is important to note that the Hon'ble Supreme Court by orders Ext. Ka-1 and Ka-2 has directed that there shall be no general stay of the coming into the operation of the Scheme but the petitioners shall be permitted to ply their buses subject to corridor restriction over the nationalised portion and temporary permits shall be issued to operators. The plying of buses was permitted subject to payment of the fee imposed by the authorities. Ext. Ka-20 shows that the appellant was strictly enforcing the Hon'ble Supreme Court order in allowing the plying of buses and renewal of permits on payment of prescribed fees. Ext. Ka-20 is an application for the said purpose by one Anwar Ali-Bus Operator which was accepted and issued by the Transport Authorities after necessary verification for payment of fees etc. Ext. Ka-20 shows that the appellant was strictly enforcing the Hon'ble Supreme Court order in allowing the plying of buses and renewal of permits on payment of prescribed fees. Ext. Ka-20 is an application for the said purpose by one Anwar Ali-Bus Operator which was accepted and issued by the Transport Authorities after necessary verification for payment of fees etc. as is evident from the report made by the Regional Transport Authority on 2.4.1984. Similar applications were also allowed as is evident from Ext. Ka-1 and Ka-2. This enforcement of Hon'ble Supreme Courts' order regarding corridor restriction and payments of fees etc. had irked the bus-operators and as argued by the learned counsel for the appellant was the cause for grievance against the appellant. In this way, only some of the bus-operators united under the leadership of Dr. Ajay Pal Singh to falsely get the appellant trapped using their resources and means in this regard. 18. NOW we proceed to examine the two applications presented on behalf of the complainant for laying down the traps as per Ext. Ka-3 and Ka-4. There are material difference in the contents of two applications moved on different dates. Ext. Ka-3 was moved on 20.7.1984 praying for laying down the trap. Ext. Ka-4 is another application giving the details of the currency notes etc. which were said to have been used in the trap. The first application Ext. Ka-3 was moved on 20.7.1984. The second application was moved on 30.7.1984 and the trap was laid on 31.7.1984. We have carefully examined the two applications and we find material discrepancy in the same. In the first application, the complaint was made against the appellant that he was not obeying the order of the Hon'ble Supreme Court and was obstructing the plying of buses and also the appellant was not issuing the permits as directed by the Hon'ble Supreme Court. In the second application, the only fact mentioned was that appellant was demanding Rs. 20,000 for allowing the plying of buses on the nationalised route and was harassing regarding deposit of taxes. In the second application it was mentioned that there was an order by Hon'ble Supreme Court and the appellant was not obeyng the same. In the second application, the only fact mentioned was that appellant was demanding Rs. 20,000 for allowing the plying of buses on the nationalised route and was harassing regarding deposit of taxes. In the second application it was mentioned that there was an order by Hon'ble Supreme Court and the appellant was not obeyng the same. We have already observed earlier that in view of the orders passed by the Hon'ble Supreme Court, nothing left in the hands of the appellant and we did not find any reasonable occasion to demand a huge bribe of Rs. 20,000 when there was already an order of the Hon'ble Supreme Court. If there was any breach of the order of the Hon'ble Supreme Court, the complainant could very well move for contempt. This discrepancy, therefore, in the applications is very material and exposes designs of the bus-operators against the appellant. 19. IT is also anomalous that earlier the money was to be paid as alleged by the complainant on 26.7.1984 as mentioned in the first application whereas in the second application it was mentioned that the money could not be arranged on that date by the bus-operators and therefore, another date of 31.7.1984 be fixed. Learned counsel for the appellant at this stage rightly pointed out that on 26.7.1984, the appellant was on tour and that is why the laying of the trap was postponed for another date when he could be available at his residence. 20. EXT. Kha-1 and Kha-2 indicate that the appellant had sent the entire matter and all the applications pending regarding renewal of permits of Nanhak Sagar Khatima route to the Regional Transport Authority as is also evident by EXT. Kha-12. All the resolutions and agenda were already sent to the Regional Transport Authority by the appellant on 24th May, 1984 itself. Nothing was left in his hand. As back as 10.7.1984, the appellant had intimated that the matter had been sent to the Regional Transport Authority and the proposed meeting was on 10.8.1984, as is evident from EXT. Kha-12. This shows that the entire papers, proceedings agenda and reference were already sent to the Regional Transport Authority for decision. As such nothing was left with the appellant to demand and bribe from the complainant when the application was moved on 20.7.1984. Kha-12. This shows that the entire papers, proceedings agenda and reference were already sent to the Regional Transport Authority for decision. As such nothing was left with the appellant to demand and bribe from the complainant when the application was moved on 20.7.1984. Thus we find that in view of the facts and circumstances of the case as mentioned above, there was no occasion for the appellant to demand the bribe from the complainant for any work to be done by him as nothing was left in his hand as since the entire matter was sent to the Regional Transport Authority. 21. NOW we proceed to examine the oral evidence produced on behalf of the prosecution. P.W. 1 Dr. Ajay Pal Singh is the complainant. He claims to be the Chairman of Kichha-Khatima Private Bus Operators Association. He also claims to be M. A., Ph. D., LL.B. and writes as Dr. Ajay Pal Singh. He supported the prosecution case that the appellant Ram Saran Das had demanded Rs. 20,000 for allowing the operation of the buses on the Kichha-Khatima route and for renewing the permits. Dr. Ajay Pal Singh also stated that the appellant has assured that buses would be permitted to ply on the part of the nationalised route. On that assurance the witness claims to have applied for laying down the trap which was arranged and the appellant was caught red-handed by the Vigilance Officer. He narrated the story as to how the money was taken to the residence of the appellant and was given to him whereupon the Vigilance Officer apprehended the appellant alongwith the money. 22. THE witness was unable to explain as to why the money was demanded by the appellant when there was already an order by Hon'ble Supreme Court for plying of buses on that route and also the Regional Transport Authority had admittedly directed for plying of buses on that route and for renewal of permits. THE witness admitted in para 23 of the cross-examination that the permits were made permanent but in the year 1985, the Regional Transport Authority had rejected the same. THE witness further claims that they had obtained the stay order from the Transport Tribunal. In view of this statement, when the permits were made already permanent, where was the occasion for the appellant to demand the money in July, 1984. THE witness further claims that they had obtained the stay order from the Transport Tribunal. In view of this statement, when the permits were made already permanent, where was the occasion for the appellant to demand the money in July, 1984. THE witness claims to have met the appellant in July, 1984 and then according to him, the appellant had demanded Rs. 20,000, the witness showed ignorance as to whether the first application was dated 20.7.1984 and the same was given that very day to the Superintendent of Police Vigilance. THE witness admitted that he had not been disclosed earlier that he had met on 20.7.1984 the appellant. There is no mention in the application dated 20.7.1984 or 30.7.1984 that he had met the appellant. His statement recorded under Section 164, Cr. P.C., was put to him and he stated that he could not say as to why it was not recorded that he had met the appellant on 20.7.1984. This further discredits the witness on the point that on 20.7.1984, the appellant had demanded money in the first meeting. A suggestion was put to the witness that his wife and the wife of the Vigilance Officer Sri Sirohi were running a joint business and with that relation, he had managed the trap in consultation with Sri Sirohi to implicate the appellant. He also admitted that it was not decided as to where the money would be paid. He also could not explain as to why he did not go to the office of the appellant and had chosen his residence during office hours. 23. P. W. 2 Harendra Singh Sirohi is the Vigilance Officer who had laid down the trap. He narrated the manner in which the trap was laid. In the cross- examination, he has admitted that he was running a Firm in the name of his wife and son and daughter in Kichha. However, he denied the suggestion that his wife was related to the wife of the P.W. 1 Dr. Ajay Pal Singh who has joint running business. 24. P.W. 3 Bhuwan Chand Pandey was A. R. T. O. In Kumayun region since August, 1981 to 29.6.1984. He proved Ext. Ka-16 the order of the Regional Transport Officer, the appellant. However, he denied the suggestion that his wife was related to the wife of the P.W. 1 Dr. Ajay Pal Singh who has joint running business. 24. P.W. 3 Bhuwan Chand Pandey was A. R. T. O. In Kumayun region since August, 1981 to 29.6.1984. He proved Ext. Ka-16 the order of the Regional Transport Officer, the appellant. He denied the suggestion in the cross- examination that any of the Bus Operators had ever met him for renewal of permits or plying of buses end he had ever directed him to meet the Regional Transport Officer appellant. He also stated that he had been checking and challenging the buses which were running without permits on the nationalised route. He was the assistant of the appellant during the relevant period. According to his statement, there was no occasion for the appellant Ram Saran Das to demand the money from the Bus Operators. He also contradicted P.W. 1 Dr. Ajay Pal Singh on the point that on 25.5.1984, some Bus Operators met him and he had directed them to meet the appellant in this respect. These material facts indicate that there was no occasion for the appellant to demand the money from the Bus Operators when already the buses were challaned after checking by P.W. 3 himself. P.W. 4 Govind Ballam Joshi was also A. R. T. O. in that region. He also stated that the buses were allowed to ply on the said route in view of the orders of Hon'ble Supreme Court and no obstruction was ever raised. He also stated that the special permits were issued the same day when the orders were passed by Regional Transport Officer. He also showed ignorance that any money was demanded by the appellant as alleged by the prosecution. 25. P. W. 5 V. P. Shahni is a formal witness. He simply proved sanction for prosecution, Ext. Ka-22. P.W. 6 is the Head Constable Teeka Ram who had put the bundle of currency notes In Malkhana. P.W. 7 Constable Irshad Ahmed had made entry in the General Diary. P.W. 8 is also a formal witness. He had sent the sample for Chemical Examination. P.W. 9 Constable Tara Dutt and P.W. 10 Virendra Pratap Singh, former A. R. T. O. are also formal witnesses. P.W. 11 Ghanshyam Bhat is a local Journalist; he had accompanied the trap party alongwith Dr. P.W. 8 is also a formal witness. He had sent the sample for Chemical Examination. P.W. 9 Constable Tara Dutt and P.W. 10 Virendra Pratap Singh, former A. R. T. O. are also formal witnesses. P.W. 11 Ghanshyam Bhat is a local Journalist; he had accompanied the trap party alongwith Dr. Ajay Pal Singh as a witness. P.W. 12 Deo Raj Nagar is S. P. Vigilance who had given permission to lay the trap. P.W. 13 Khima Nand Joshi is a clerk in the Transport office. He has proved the orders passed by the appellant in respect of granting of temporary permits. P.W. 14 Laik Uddin is one of the Bus Operators who stated that they had formed a Union. He stated that for granting temporary permits, the appellant had demanded Rs. 20,000 form the Chairman, Dr. Ajay Pal Singh. He admitted in his cross-examination that in view of the orders of the Hon'ble Supreme Court, the Bus Operators could ply their buses 'without payment of royalty on the aforesaid route. P.W. 15 Ram Naresh Yadav claims to be the Manager of the Bus Operators Association. According to him. Dr. Ajay Pal Singh had disclosed to them that appellant was demanding the money and he would meet in that respect, P.W. 16 Chandan Singh is Inspector Vigilance and was doing pairvi in this case on behalf of the prosecution. P.W. 17 Jaswant Singh is the Deputy Superintendent of Police Vigilance who had completed the investigation. 26. AFTER careful examination of the oral evidence also it could not be culled out from the facts and circumstances of the case that there was any compelling reason for the Bus-Operators to pay bribe to the appellant when there was already an order of the Hon'ble Supreme Court, regarding plying of buses without payment of royalty. Therefore, we are of the view that the prosecution has failed to prove beyond reasonable doubt that there was any occasion for the appellant to demand the money from the bus-operators through their President and the Bus- operators were under compulsion to pay the same for getting any favour of the appellant in respect of plying of the buses on the aforesaid route. We find that it appears that as suggested to Dr. We find that it appears that as suggested to Dr. Ajay Pal Singh that he had picked up quarrel with the appellant on some occasion and thereafter he tried to implicate the appellant in collusion with Dy.S. P. Vigilance Sri Sirohi for teaching a lesson. We have given anxious thought to the facts of the case that a trap was arranged, it was executed at the residence of the appellant and he was arrested thereupon. The mere fact that the appellant was arrested from his residence while taking the alleged bribe is not enough to establish the guilt. The court has to assess the evidence on record and the circumstances of the case to find out as to whether it was a real trap or it was planned to implicate the appellant with a view to teach him a lesson on account of alleged exchange of words between the appellant and Dr. Ajay Pal Singh. 27. THE fact that on 20.7.1984 itself an application was moved that the trap be laid on 26.7.1984 the manner in which the trap was postponed fr6m 26.7.1983 to 31.7.1984 on the pretext that the money could not be arranged, makes the entire case highly suspicious. Learned counsel for appellant rightly argued that postponement was on account of the fact that on 26.7.1984 the appellant was on tour. Since the appellant was to be implicated, the trap was laid only when he was available on 31.7.1984 at his residence. Even the trap could not be laid in the office hours and the same could be laid only when the appellant was inside the house during lunch hours so that hue and cry in the office could be avoided for in the office the trap could not be successfully executed. Even the alleged harassment by the appellant was never brought to the notice of the higher authority or any complaint was ever made to any body in that respect. P.W. 3 Bhuwan Chand Pandey A.R.T.O. himself admitted that except routine checking and renewal of temporary permits, there was no occasion for any harassment to the Bus-operators in view of the orders of the Hon'ble Supreme Court. He has also stated that he never knew that the bus-operators were being harassed or that the appellant was demanding any money through the president of the Bus-operators Association. 28. He has also stated that he never knew that the bus-operators were being harassed or that the appellant was demanding any money through the president of the Bus-operators Association. 28. THUS we are of the firm opinion that the prosecution has not been able to prove that there was any occasion for the appellant to demand Rs. 20,000 from the complainant for any purpose. On this ground alone the prosecution case is not proved and is out-right a fake trap as is evident on record. Learned counsel for the appellant also emphatically placed a second point of discrepancy in the case. He argued that the sanction for prosecution as granted by the Sanctioning Authority was itself defective and the trial has vitiated on that ground also. The sanction granted for prosecution is Ext. Ka-22 on record. In the sanction the allegations are mentioned but for prosecution the sanction was given for the offences punishable under Section 5 (1) (e) of the Prevention of Corruption Act and under Section 161 of the Indian Penal Code. It was further mentioned that the sanction is granted for the prosecution under Section 5 (1) (c) read with Section 5 (2) of the Prevention of Corruption Act (Act No. 2 of 1947). Learned counsel for the appellant pointed out that since the sanction was for an offence under Section 5 (1) (e) which is living beyond means but the charge was framed under Section 5 (1) (d) of the Prevention of Corruption Act and therefore, the prosecution of the appellant was without sanction and his conviction must be set aside. 29. LEARNED counsel for the appellant relied on this point, the case of Orissa High Court of Hare Krushna Patnaik V. State of Orissa reported in 1991 Cr LJ 462. This case of Orissa High Court is exactly on the same point. In that case also the sanction was granted under Section 5 (1) (e) read with Section 5 (2) of the Prevention of Corruption Act and not under Section 5 (1) (d), the Court held that the conviction on the basis of this defective sanction is illegal. 30. THIS discrepancy in the sanction was neither explained by the Sanctioning Authority P.W. 5 Sri V. P. Sahni, P.W. 5 Sri Sahni did not say a word as to why this discrepancy occurred in the sanction Ext. Ka-22. 30. THIS discrepancy in the sanction was neither explained by the Sanctioning Authority P.W. 5 Sri V. P. Sahni, P.W. 5 Sri Sahni did not say a word as to why this discrepancy occurred in the sanction Ext. Ka-22. The prosecution did not care to get this discrepancy explained] by the Sanctioning Authority. As such this discrepancy remained on record. The learned Sessions Judge who framed the charge under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act did not care to clarify this matter. Although we find that the facts disclosed by the complainant were recorded in the sanction order Ex. Ka-22 but the provision of the Act was wrongly mentioned. It was argued by the learned counsel for the. prosecution that this discrepancy was a clerical mistake and trial could not be vitiated on that ground. He also referred to the rulings reported in the 1964 CrLJ 335 , wherein it was held that mere technical defect in the sanction will not vitiate the trial. He also referred to the provision under Section 465 of the Cr. P.C. that it was an irregularity and no prejudice was caused to the appellant when the charge was explained to him. According to the learned counsel for the State, no prejudice was caused and there was no failure of justice in the defect pointed out in this matter. 31. ON the other hand, learned counsel for the appellant referred to the case reported in 1982 Cr U 720 wherein it was held that the Sanctioning Authority must apply his mind before granting sanction for prosecution. This mistake was also not explained by the Sanctioning Authority which amounts to no application of mind. Learned counsel for the appellant further argued that if the provision of the Act is specified in the sanction then other charges are excluded by implication. This mistake was also not explained by the Sanctioning Authority which amounts to no application of mind. Learned counsel for the appellant further argued that if the provision of the Act is specified in the sanction then other charges are excluded by implication. Once the sanction order specifies the provision of Section 5 (1) (e) then other provisions of Section 5 (1) are excluded by implication and the charge framed under Section 5 (1) clause (d) is without any sanction and therefore, prejudice is caused to the appellant and its benefit has to be given to the appellant Again he referred to the case of Orissa High Court as mentioned above, wherein it was specifically held that when a particular clause is mentioned in the sanction order, the trial an the charge under another clause is defective and it will be deemed that no sanction was granted for the offence under Section 5 (1) (d) of the Prevention of Corruption Act. In that view of the matter, the benefit has to be given to the accused. The Orissa case is exactly on this point and still applicable as good law on the point. 32. WE find on record that although the facts are mentioned in the sanction order but the provision of law is not correctly mentioned, the same is not explained by the sanctioning Authority when he appeared as a witness. This clearly shows non-application of mind while granting the sanction and accordingly, the trial could not be said to be fair in the circumstances of the case and the appellant was entitled to its benefit. Even if it could be said that there was no failure of justice when the cliarge was explained to the appellant and he did not raise this question at that stage but in the circumstances we find that this defect remained on record unexplained and it was not for the appellant to point out at the stage of charge or trial and in view of the fact that there was non- application of mind while granting the sanction, the benefit has to go to the accused appellant. In view of the discussion made above, we find that it was a case of fake trap and the prosecution has not been able to prove the charges against the appellant and he is entitled to acquittal. 33. In view of the discussion made above, we find that it was a case of fake trap and the prosecution has not been able to prove the charges against the appellant and he is entitled to acquittal. 33. THE complainant had also filed a revision for enhancement of the sentence. In view of the discussions made above, there is no question of any enhancement of sentence. Therefore, this revision is dismissed. THE appeal is allowed. THE conviction and sentence of the appellant under Section 161, I.P.C. and under Section 5 (1) (d) read with Section 5 (2) of the Prevention of Corruption Act are set aside. THE appellant is acquitted of the charges on which he was tried. He is on bail. He need not surrender. Bail bonds and surety bonds are discharged. Fine if deposited shall be: refunded to the appellant. Appeal allowed.