JUDGMENT 1. :- By way of instant appeal, the appellant has come up before this Court against the judgment & order of the learned Special Judge, Prevention of Corruption Act Cases, Jaipur dated 23.9.1998 passed in Special Cr.Case No.25/96 whereby, he convicted and sentenced the accused-appellant thus: CONVICTION SENTENCE -1 u/Sec.7 of the Act 6 months RI with a fine Rs. 2500/-, in default of payment of fine, further undergo 1 month SI. -2 u/Sec.13(1)(d)(2) of the Act 1 year RI with a fine of Rs. 5000/-, in default of payment of fine, further undergo 2 months SI. 2. Brief facts which are relevant for deciding this appeal are thus; 3. Pv''1 Bachu Singh (complainant) who is also President of Tourists Bus Union, Bharatpur on 12.3.1996 submitted a written complaint vide Exh.P.2 to the Dy.S.P. Raj. State Investigating Bureau, Jaipur alleging therein that 15 tourists buses visit Jaipur from Bharatpur daily. It was alleged in this report that accused-appellant Raghuvir Singh Ranawat, SHO, Traffic Police, Sindhi Camp Bus Stand, Jaipur charge from them Rs. 150/- per bus by way of illegal gratification and the accused-appellant wanted to increase the monthly bribe which the Union opposed. In this connection, complainant gave prior information to the. Anti Corruption Department that accused-appellant will come to collect the monthly bribe at Hans Travels. 4. On receiving complaint, Anti Corruption Department organised raiding party and Shri Vishal Kumar, Dy. S.P. (PW 14) called two motbirs witnesses i.e. Rajesh Jain (PW3) and Ashok Kumar Sharma (PW 7) and in their presence he put his initials on the currency notes and smeared Phenolphthalein Powder on it. Thereafter, the money was put to the pocket of complainant and the demonstration of Phenolphthalein Powder was given to the Motbirs witnesses and the raiding party reached near Hans Travels where the accused- appellant with his associate namely; Satyavir Singh was to come for collecting the monthly bribe. Complainant deposed in his complaint that on 12.3.1996 at 5.30 P.M. two persons, one in uniform of Sub Inspector Police and another in the uniform of Traffic Police came to the Hans Travels where, after raising the signal by the complainant, the raiding party entered into the office of Hans Travels and caught the accused red handed. On accused being asked as to whether he had received Rs. 2250/- from the complainant, accused-appellant refused to accept the bribe from the complainant. On accused being asked as to whether he had received Rs. 2250/- from the complainant, accused-appellant refused to accept the bribe from the complainant. Thereafter, the hands of accused-appellant as well as pocket of his pant were washed in the Sodium Carbonate solution, thereupon, the colour of the hands and pocket of the trouser of the accused-appellant turned into pink. On the spot, the solution was seized and sealed in bottles as well as the bribe money alleged to have been taken by the accused-appellant by way of illegal gratification was also seized and sealed. On the spot, recovery memo vide Exh.P.5 was also prepared by the raiding/trapping party and the accused-appellant and one Satyavir Singh were an:est&:d. The Anti Corruption Department registered FIR No. 77/96 with P.S. A.C.D. Jaipur against the accused-appellant as well as against Satyavir Singh co-accused for commission of offence under Sections 7, 13(1)(d)(2) of the Prevention of Corruption Act, 1988 for short "the Act" read with Section 34 IPC. The police started investigation and filed challan against accused-appellant Raghuvir Singh and Satyavir Singh for commission of aforesaid offences before the Special Judge (Prevention of Corruption) Cases, Jaipur. 5. The learned Special Judge framed the charge against the accused-appellant for offence under Section 7 & 13(1)(d)(2) of the Act and against Satyavir Singh for offence under Section 34 IPC. However, the accused pleaded not guilty to the charge and claimed trial. The prosecution in support of its case examined PW 1 Bachu Singh, PW2 Vijay Singh, PW3 Rajesh Jain, PW4 Harsh Kumar, PW5 Hari Narain Meena, PW6 Ganga Singh, PW7 Ashok Kumar Sharma, PW8 Dilip Singh Beniwal, PW9 Ram Kishore, PW10 Mali Ram, PW11 Tulsi Ram, PW12 Arjun Singh, PW13 Virendra Singh, PW14 Vishal Kumar Sharma and PW15 Het Ram and produced 35 documentary evidence. The statements of the accused were recorded under section 313 Cr.P.C. In his evidence, the accused-appellant examined DW1 Ghulam Mustafa and DW2 Kedar Mal Sharma. 6. After hearing the learned counsel for the parties, the learned trial Court in Special Cr.Case No.25/96 (State of Raj. vs. Raghuvir Singh and anr.) vide its judgment & order dated 23.9.1998 acquitted co-accused Satyavir Singh of the charge under Section 34 Indian Penal Code while convicted accused-appellant Raghuvir Singh for offence under Section 13(1)(d)(2) of the Act and sentenced him as aforesaid. Hence this appeal. 7. vs. Raghuvir Singh and anr.) vide its judgment & order dated 23.9.1998 acquitted co-accused Satyavir Singh of the charge under Section 34 Indian Penal Code while convicted accused-appellant Raghuvir Singh for offence under Section 13(1)(d)(2) of the Act and sentenced him as aforesaid. Hence this appeal. 7. The prosecution in support of its case examined Bachu Singh-complainant (PW1), Raj Jain (PW3) and Ashok Sharma (PW7) as Motbirs (eye-witnesses). Bachu Singh in his deposition before the learned Special Judge has stated that he did not even know accused-appellant Raghuvir Singh prior to the incident nor the accused had demanded any bribe from him whether before or on the day of incident. This witness has further deposed that the amount of bribe was not even accepted by the accused on the day of the incident. He has further deposed that he had not known the accused previously. They were seen busy aside the buses which were parked outside the Bus Depot. He had invited him to take tea and then he took out Rs. 2250/- from his pocket and tried to give the same to the accused-appellant. Then, the SI Raghuvir Singh Ranawat-appellant declined to accept the same while pushing aside the illegal gratification offered to him while on the contrary, he said that orders for removal of the said buses had come from higher authorities, hence he was bound to comply with the same and that nobody could obstruct him from discharging his official duty. It is at that point of time that the accused-appellant was arrested by the Investigating Agency. It has further been deposed by the complainant that after the arrival of Dy. S. I'. (ACD), no search of the accused took place nor the currency notes were taken out by Rajesh Jain (PW3) from the pocket of the accused in his presence as alleged. 8. Thus, the main witness of the prosecution i.e. Bachu Singh complainant (PW1) has himself not supported the prosecution story on whose deposition the entire prosecution story rest. He had himself disowned the whole story of the prosecution and in view of this, Mr. R.A. Katta, learned counsel for the appellant contended that no credibility should be attached to the corroborative evidence of supporting eye-witnesses i.e. Rajesh Jain (PW3) and Ashok Sharma (PW7) since complainant-Bachu Singh (PW1) has himself not supported the prosecution case. He had himself disowned the whole story of the prosecution and in view of this, Mr. R.A. Katta, learned counsel for the appellant contended that no credibility should be attached to the corroborative evidence of supporting eye-witnesses i.e. Rajesh Jain (PW3) and Ashok Sharma (PW7) since complainant-Bachu Singh (PW1) has himself not supported the prosecution case. Learned counsel further contended that law is well settled that corroborative evidence can only be looked into and relied upon when the evidence of the complainant is worthy of credibility and only in that event that reliance should be placed upon the corroborative evidence of other witnesses. Mere presence of the said witnesses at the place of occurrence would not make any difference particularly when the complainant himself has not supported the prosecution case and was declared hostile. Learned counsel has further contended that the ingredients of Sections 7 & 13 (1)(d)(ii) of the Act having not been proved by the prosecution beyond any reasonable doubt against the accused appellant and when the charge itself is not established, no reliance should be placed on the prosecution story. He has further contended that on the day of incident neither the appellant consented nor he did accept the illegal gratification while on the contrary, the complainant in his deposition has stated that he tried to accept the same and when inspite of his unwillingness, he offered money by way of illegal gratification by thrusting it upon him, he took out the same and threw it on the complainant and in the meantime the Dy. S.P. (ACD) personnel came and arrested the accused. It is in these circumstances as per the complainant's version that the illegal gratification was offered and it was promptly returned back by the accused. Hence, neither the recovery has been effected at the instance of the complainant himself by the Raiding Party nor any recovery of -money was effected from the person of the accused appellant at the time and place of incident as so contended by the prosecution, and hence the charge having not been established, no reliance can be placed on the evidence led by the prosecution. 9. Before I deal with the contentions of the learned counsel for the parties, I deem it appropriate to refer to the provisions of Section 7 & 13(1)(d)(i)(ii)(iii) of the Act thus: "7. 9. Before I deal with the contentions of the learned counsel for the parties, I deem it appropriate to refer to the provisions of Section 7 & 13(1)(d)(i)(ii)(iii) of the Act thus: "7. Public servant taking gratification other than legal remuneration in respect of an official act.-Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, fro himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine. 13. 13. Criminal misconduct by a public servant.-(1) A public servant is said to commit the offence of criminal misconduct, - (a) if he habitually accepts or obtains or agrees to accept or attempts to obtain from any person for himself or for any other person any gratification other than legal remuneration as a motive or reward such as is mentioned in section 7; or (b) if he habitually accepts or obtains or agrees to accept or attempts to obtain for himself or for any other person, any valuable thing without consideration or for a consideration which he knows to be inadequate from any person whom he knows to have been, or to be, or to be likely to be concerned in any proceeding or business transacted or about to be transacted by him, or having any connection with the official functions of himself or of any public servant to whom he is subordinate, or from any person whom he knows to be interested in or related to the person so concerned; or (c) if he dishonestly or fraudulently misappropriates or otherwise converts for his own use any property entrusted to him or under his control as a public servant or allows any other person to do so; or (d) if he, (i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or (iii) while holding office as a public servant, obtains for any person any valuable thing or pecuniary advantage without any public interest; or" 10. Looking to the aforesaid provisions, it is apparent, that in order to attract the ingredients of the aforesaid provisions, it is very essential for the prosecution to establish at first instance, there has to be the demand for illegal gratification at the instance of the accused which should be proved keeping in view the consent of the' accused followed by recovery of the illegal gratification from the person of the accused when actually made. When any of the aforesaid ingredients are lacking, the offence cannot be treated as illegal gratification as per the requirement of provisions of Section 7 and 13(1)(d)(ii) of the Act which shall not be deemed to have been attracted. 11. I have heard Mr. When any of the aforesaid ingredients are lacking, the offence cannot be treated as illegal gratification as per the requirement of provisions of Section 7 and 13(1)(d)(ii) of the Act which shall not be deemed to have been attracted. 11. I have heard Mr. Katta, learned counsel for the appellant at length as well as the learned PP for the State and also examined the evidence available on the summoned record. 12. Prima-faice, I am of the considered opinion that when according to the deposition of star witness Bachu Singh (PW1) himself that neither the appellant had made any demand by way of illegal gratification nor any search of the accused took place after arrival of the investigating Officer concerned i.e. Dy. S.P. (ACD) nor the alleged currency notes which were taken out from the pocket of the accused has been supported by the evidence of Motbirs (eye-witnesses) namely; Rajesh Jain (PW3) and Ashok Kumar Sharma (PW7) respectively, and when the complainant as well as the other witnesses have not supported the prosecution case, the trial Court has grossly erred in convicting the accused appellant for offences under Section 7 and 13(1)(d)(2) of the Act and the said conviction being contrary to the provisions of the statute is not sustainable. Rather, I am of the firm opinion that prosecution has deliberately failed by not producing the relevant witnesses which have been left out to be examined in support of its case i.e. Booking clerk Shri Ummed Singh who was present at the time of incident nor any other independent witnesses from the public for which no explanation has been offered. Likewise, no witness from Hans Travels has also been examined. Since the incident took place at the main bus stand of Jaipur City, it has come in evidence that accused-appellant at the relevant time was busy in discharging his official duty by removing the buses from the entrance of the bus stand in order to avoid inconvenience to the passengers. Taking advantage of the situation, the raiding party was organised and the accused was apprehended in the manner as aforesaid. I am further of the view that prosecution story suffers from major inconsistency, infirmity and contradictions. Taking advantage of the situation, the raiding party was organised and the accused was apprehended in the manner as aforesaid. I am further of the view that prosecution story suffers from major inconsistency, infirmity and contradictions. A mention may be made in this regard to recovery memo (Exh.P.5) which was not read over to the accused and the ACD Personnel had signed on it in a great hurry from which, it is apparent that witnesses who had actually signed on the recovery memo themselves did not know as to what was written on it and thus the recovery memo which has been forcibly got signed from the witnesses namely; PW3 and PW7, respectively were made to join the raiding party and hence, no reliance can be placed upon the testimony of Motbir Witnesses i.e. PW3 and PW7 nor testimony of such recovery memo (Exh.P.5) Hence, as a result of above discussion, the prosecution story is rendered highly incredible and no reliance can be placed upon the same. I am further of the view that recovery itself having not been proved or established beyond reasonable doubt nor the complainant himself supported the prosecution case, it is a matter of great surprise as to how the trial Court has taken the view erroneously contrary to the evidence on the record by relying upon the provisions of Section 7 and 13(1)(d)(2) of the Act and convicted the accused-appellant as aforesaid which is not sustainable and in my view the charge against the accused deserves to be quashed and set-aside. 13. I am further of the view that when officer of the rank of Dy.S.P. (ACD) was present at the spot, what were those exceptional circumstances for conducting the entire proceedings subsequent to the trap which was not conducted by 10 Vishal Kumar who himself was an interested party in the case. Prima-facie, it was the duty of the prosecution to have got the entire proceedings conducted by some impartial 10 inspite of getting the same conducted by the aforesaid 10 and in such circumstances no credibility can be attached to such investigation particularly when it ceases to be fair and impartial. 14. During the course of hearing, Mr. Prima-facie, it was the duty of the prosecution to have got the entire proceedings conducted by some impartial 10 inspite of getting the same conducted by the aforesaid 10 and in such circumstances no credibility can be attached to such investigation particularly when it ceases to be fair and impartial. 14. During the course of hearing, Mr. Pratap Singh, learned Public Prosecutor for the State could not give any satisfactory reply to the query put by the court as to why the statement of the eye-witnesses who were present at the spot were not recorded. He has further been not able to give any satisfactory explanation as to when the complainant himself has not supported the prosecution case and was declared hostile, whether any reliance can be placed on the testimony of such a witness as well as the supported witnesses i.e. PW3 and PW7. This creates strong doubt and suspicion about the credibility of the entire prosecution story. 15. I am fortified in my observations from the judgment of the Apex Court in the matter of Babu Lal Bajpai v. State of U.P.; 1994 Cr.L.J. (SC) 1383 , Darshan Lal v. The Delhi Administration : AIR 1974 SC 218 : 1974 Cr.L.J. SC 307 , Lallu Khan v. State of Rajasthan : 1989(2) RLR 532=1988 Cr.L.R. (Raj.) 181 . 16. In the matter of Babu Lal Bajpai v. State of UP (supra), the Division Bench of the Apex Court in para 6 of its judgment observed thus: "The case of the accused is that the complainant had tried to thrust the money in his pocket and he had resisted the said attempt, and thrown down the money on the floor. This version of the accused has been supported by the prosecution witness Raghubir Singh who is the adjacent shopkeeper and in whose shop the testing of ultra voilet rays on the currency notes was made. Since he was aware of what was going to happen he had naturally moved near the shop of the trap. According to this witness he was standing outside the said shop and had heard the conversation inside the shop where the trap was laid. There is no reason why this witness who is a stranger both to the prosecution as well as to the accused would support the version of the accused, as stated above, if that was not the true version. There is no reason why this witness who is a stranger both to the prosecution as well as to the accused would support the version of the accused, as stated above, if that was not the true version. The trial Court has also relied upon, and according to us rightly, this version of the said prosecution witness. There are two of the most important reasons given by the trial Court for acquitting the accused. The High Court has ignored these reasons and has tried to substitute its own finding which unfortunately is based on surmises. We are, therefore, more than satisfied that this was not a case where any interference with the finding of the trial Court was called for. In the circumstances, we are of the view that the impugned order of the High Court deserves to be set aside and the appellant-accused should be acquitted of both the charges. " 17. Likewise, in the matter of Lallu Khan v. State of Rajasthan (supra), this Court observed thus : "Before a presumption under Section 4(1) of the Act is raised, the prosecution must establish that an accused willingly to the money or thing offered to him knowing fully well that the gratification was meant for his benefit or for the use of somebody else. Where a person is charged under Sec. (1) of the Act and the prosecution relies upon the presumption against the accused, the burden is on the prosecution to prove that, the gratification was paid or given and received by the accused; that, at that time he was a Government employee and that, the giver has or seeks to have dealings with the Government or its department. It is therefore, upon the prosecution to prove not only the passing of the money to the accused, but also that he took it with a consenting mind." 18. As a result of above discussion, the appeal is allowed. The appellant is acquitted of the charge as aforesaid being not found sustainable. Accordingly, the impugned-judgment & order dated 23.9.1998 passed by learned Special Judge, Prevention of Corruption Act Cases, Jaipur in Special Criminal Case No. 25/1996 ( State of Rajasthan vs. Raghuvir Singh and anr. ) is quashed and set-aside. Since the accused-appellant is already on bail, he need not to surrender and his bail bonds are discharged.Appeal Allowed. *******