S. K. AGARWAL, J. Heard learned Counsel for the appellant and learned A. G. A. 2. In this case the appellant was con victed for an offence under Section 5 (2) of the Prevention of Corruption Act. He was sentenced to 2 years R. I. and was directed to pay a fine of Rs. 500/ -. In default thereof he was sentenced to undergo three months simple imprisonment. He was also convicted under Section 161, I. P. C. and sentenced to R. I. for two years. Both the sentences were to run concurrently. 3. The brief facts of the case are that Rajendra Singh Kushwaha an employee of the same department was asked to pay a bribe of Rs. 150/- for protecting him from any recovery against any shortage detected against him in his capacity as Assistant Agriculture Inspector, by the appellant. The allegations are also against the Project Officer, Shri Lal Mani Ram. The allega tion made in the application is that the appellant Bhaiya Lal who was an account ant in the same office is demanding illegal money i. e. Rs. 150/- in collusion with the Project Officer Shri Lal Mani Ram for protecting him from the recovery. This application is Ext. Ka-9. This application was given to District Magistrate, Banda. District Magistrate, Banda directed Addi tional District Magistrate (Finance) to take necessary steps in effecting the arrest of the appellant. The A. D. M. (Finance) called Ram Lakhan Gupta P. W. 8 Sub-Divisional Magistrate, Banda to his office and got papers prepared by him including the statement of Rajendra Singh Kush-waha. After preparation of the papers Shri Ram Lakhan Gupta, S. D. M. , Banda had summoned the Circle Officer, Sadar Shri Om Prakash Kakkar to the office of A. D. M. (Finance ). He was handed over all relevant papers so prepared by him. Com plainant Rajendra Singh Kush-waha was also handed over to this Officer P. W. 5. He came out of the office of A. D. M. (Finance) and proceeded towards the place of inci dent, the Agriculture Office, which is situated at about 100 steps from City Telephone Exchange. He came across other Police personnel including S. H. O. P. S. Kotwali, Shiv Nandan Singh. The en tire Police party that accompanied Circle Officer was in regular Police dress. He came across other Police personnel including S. H. O. P. S. Kotwali, Shiv Nandan Singh. The en tire Police party that accompanied Circle Officer was in regular Police dress. They accompanied the Circle Officer, Sadar, P. W. 6 abandoning their jeep in front of Telephone Exchange towards the office of the appellant and reached there. They found the appellant sitting on a table and talking to a stranger. The complainant entered into the room and handed over the requisite money i. e. Rs. ISO/-, containing a note of Rs. 100/- bearing No. AA/35 377745 and a note of Rs. 50/- bearing No. 3 DH 355825. According to recovery memo statement of Rajendra Singh before pass ing on the money to the appellant was that you have demanded Rs. 150/- for not af fecting the recovery I have brought that money. Please accept it. Stating so that money was handed over to the appellant. He had kept them in his purse. Immedi ately thereafter, the Police party including P. W. 5 entered the room and affected the arrest and recovery of the impugned notes. Recovery memo is Ext. Ka-6. The appellant was thereafter taken to the Police Station concerned and all the formalities pertaining to sealing of notes, sealing of purse containing notes, etc. and lodging of the F. I. R. were completed at 8. 15 p. m. by P. W. 5. Recovery memo were prepared on the dictation of P. W. 5 by another Sub-in spector Shiv Nandan Singh. The sanction was obtained and the appellant was put to trial. The trial ended into conviction of the appellant as stated above. 4. The prosecution in order to sup port its case has examined two public wit nesses who were taken from the said cross ing in front of Telephone Exchange. They are P. W. 1 Mithlesh Kumar Dwivedi and P. W. 2 Shiv Prasad, P. W. 3 Rajendra Singh Kushwaha is complainant. P. W. 4 Akshay Kumar Singh is the Investigating Officer of the case. P. W. 5 Rishi Ram Sharma is Director, U. P. State Seed Certification Organisation, Lucknow. The sanction order is Ext. Ka-5, Om Prakash Kakkar P. W. 5 as earlier stated conducted raid and arrested the appellant along with the bribe money. P. W. 7 is Munna Lal Katiyar. At that time he was Head Moharir at police station, Kotwali, Banda. P. W. 5 Rishi Ram Sharma is Director, U. P. State Seed Certification Organisation, Lucknow. The sanction order is Ext. Ka-5, Om Prakash Kakkar P. W. 5 as earlier stated conducted raid and arrested the appellant along with the bribe money. P. W. 7 is Munna Lal Katiyar. At that time he was Head Moharir at police station, Kotwali, Banda. He had proved various Exts. pertaining to the registration of the case, check F. I. R. and other papers. P. W. 8 is Ram Lakhan Gupta who was Sub- Divisional Magistrate of the District at the relevant time. He has proved the application given to District Magistrate, Banda by the complainant and the fact that applica tion was transmitted to A. D. M. (Finance) on whose call he had co-ordinated with him in preparing Ext. Ka-2. The order given by him to Circle Officer, Sadar for organising trap is Ext. Ka-8. The order of District Magistrate pertaining to A. D. M. (Finance) is Ext. Ka-9. Ext. Ka-10 is the statement of Rajendra Singh Kushwaha. The notes, which was initialled by him are Ext. 3 and 4. Fard pertaining to these notes is Ext. Ka-11. This is the entire evidence that has been brought on record in support of its case by the prosecution. 5. The appellant has denied the char ges and claimed that he had been involved in this offence by Rajendra Singh Kush waha falsely. His further contention is that he was not dealing with the cases of recovery. It was dealt with by Ram Adhar. He had absolutely no concern with the recovery and could not have helped Rajendra Singh Kushwaha in stalling recoveries from him. In support of this contention he has examined D. W. 1 Ram Adhar Awasthi, a dealing Clerk in the Agriculture Office. He was employed as Junior Clerk. 6. Learned Counsel for the appellant has contended before me that in the ab sence of the correct details of talks that had taken place between the appellant and the complainant it will be unsafe to accept the prosecution case. Two independent witnesses have not supported the prosecution case on this point. There is variance in the statement of P. W. 6 and P. W. 3. Two independent witnesses have not supported the prosecution case on this point. There is variance in the statement of P. W. 6 and P. W. 3. These dif ferences go to the root of the fact as to what transpired between Rajendra Singh Kush waha and the appellant before alleged ac ceptance of bribe money by the appellant at the time of payment. In the absence of any proof of the dialogue between the two it will not constitute any offence against the appellant under Section 5 (2) of the Prevention of Corruption Act and Section 161, I. P. C. It is further contended that two public witnesses were pocket witnesses. They had admitted their acquaintance with the S. H. O. Shiv Nandan Singh. They had also accepted that they were on visit ing terms with him. These witnesses admit tedly were called by S. H. O. It is further contended that no signature of the appel lant was procured by the Raiding Officer P. W. 6 on the recovery memo. Copy of the recovery memo was not given to him. Ac cording to the learned Counsel the prosecution has failed to establish its case against the appellant of accepting the money for frustrating recovery. It is not proved from the evidence on record beyond reasonable doubt. In order to ap preciate this contention of learned Coun sel for the appellant we have to examine the evidence of these witnesses. 7. As already stated there is a clear averment in Ext. Ka-2 the application made by the complainant to the District Magistrate for initiating proceeding against the appellant for demanding bribe to the fact that the appellant who was an accountant was demanding money from him in collusion with the Project Officer Shri Lal Mani Sharma. It is also stated therein that this money is demanded for frustrating recovery. This recovery accord ing to complainant and as alleged in his application was based on forged and fabri cated bills. The defence witness D. W. 1 has proved beyond doubt that the recovery order was issued against the complainant on 29-3-1984. This recovery order con tains signature of Superior Officer as well as the appellant. It is rightly urged that once the recovery order has been issued the appellant cannot frustrate the recovery on any ground. The recovery can be frustrated only before the issuance of the recovery order. 8. This recovery order con tains signature of Superior Officer as well as the appellant. It is rightly urged that once the recovery order has been issued the appellant cannot frustrate the recovery on any ground. The recovery can be frustrated only before the issuance of the recovery order. 8. The evidence of P. W. 1 shows that he was called by Sahar Kotwali, Dy. S. P. asked him to go to Agricultural Project Office. He was accompanied by Shiv Prasad another public witness. According to him when they reached there Bhaiya Lal was sitting in his office with a stranger. He had stated very clearly that Rajendra Singh Kushwaha had passed few notes to Bhaiya Lal appellant. According to him Bhaiya Lal accepted these notes and kept them in front pocket of his bushirt. Police personel raided the office and arrested the accused and personal search of Bhaiya Lal was conducted. In the search one currency note of Rs. 100/- No. AA/35 377745 and other currency note of Rs. 50/- No. 3 DH 3555826 were recovered from him. He had stated that Fard for recovery of the notes was prepared. In cross-examination this witness had admitted that Shiv Prasad belongs to the same village to which he belongs. He had stated that he had come to Police Station, Banda. He further stated that he cannot tell from which Thana Shiv Prasad came, when they met but two were together when they were called. According to him it was about 1-1/2 hours still for the sun to set. The police personnel had taken them to the office and Rajendra Singh Kushwaha had arrived ahead of them with the money. He categorically stated that he had not heard any conversation between the appellant and the complainant. Ac cording to him all the policemen except Circle Officer, were in uniform. He had stated that he was seeing Bhaiya Lal clearly but whether Bhaiya Lal was seeing him is not known to him. There were many people present in the office. Policemen did not ask them their names. No mutual search before proceeding for the raid was taken amongst themselves. He had ad mitted that he knew the S. H. O. from before. There were many people present in the office. Policemen did not ask them their names. No mutual search before proceeding for the raid was taken amongst themselves. He had ad mitted that he knew the S. H. O. from before. He admitted that since his village falls within the jurisdiction of Police Sta tion Kotwali therefore, he was visiting it frequently and know the S. H. O. He had further admitted that he could not say whether money recovered from Bhaiya Lal was given in bribe or not. 9. Almost to the same effect is the statement of P. W. 2 Shiv Prasad. He ad mitted that he had accompanied the police party to the appellants office. From his place he was not able to see anything. He did not state anything about conversation between the complainant and the accused and what happened there. He had stated that from the place where he was standing Bhaiya Lal was not visible. He further stated that he could not see any one giving anything to the appellant or his accepting any such thing. He had also denied hearing of the conversation between them. He fur ther stated that they had entered the room 10 minutes after Rajendra Singh Kush waha had gone in. According to him two notes of Rs. 100/- and Rs. 50/- including the notes that were given in bribe were recovered from him. They were seized and memo of recovery was also prepared for that. Subsequently he had stated that Fard was also sealed. This witness was declared hostile by the prosecution at this stage. He was confronted with his statement made under Section 161, Cr. PC. He had admitted that for going to his village from Babu Lal Chauraha a straight road was there and Telephone Exchange does not fall in this way. According to him the police personnel met him at Babu Lal crossing and they have accompanied them from there. He stated that he had gone to the office of the appellant. He has further stated that at the time of arrest appellant Bhaiya Lal had asked, "why is he being arrested?" He told the complainant that "you have not done a good thing to me. You have deceived me. " According to him Circle Officer was standing at 5-6 steps from him. He was peeping through the door. He has further stated that at the time of arrest appellant Bhaiya Lal had asked, "why is he being arrested?" He told the complainant that "you have not done a good thing to me. You have deceived me. " According to him Circle Officer was standing at 5-6 steps from him. He was peeping through the door. He has also admitted that all the policemen were wearing uniform. The police personnel were standing behind them. He further admitted that he was knowing S. H. O. , Kotwali from before and was on frequent visiting term with him. 10. Examining the statement of these two witnesses it is apparent that none of these witnesses had heard any conversa tion between the appellant and the com plainant. Apart from it, it is further clear from their statements that it was not pos sible for anyone to hear the conversation from that place where they were standing. Both the witnesses contradicted each other. P. W. 2 Shiv Prasad stated that appel lant enquired from police party the reason for his arrest. This is a very material piece of evidence which hints at an element of surprise in the conduct of the appellant instead of an exhibition of shock. This clearly strikes at the root of the prosecu tion case of demand of a bribe by appellant for stalling the recovery. 11. So far as the visibility of the appellant from the place of their standing is concerned P. W. 1 stated that the appellant was visible. Whether the appellant was able to see them he was not sure about that P. W. 2 has categorically denied that appellant was visible. This, improvement was intro duced purposely in his evidence because according to P. W. 1 appellant was visible to him from the place of his standing then appellant will also be able to see the police party and in that event it is most unlikely that he will have accepted the money from the complainant. The policemen were r uniform and it must have alarmed him. 12. Now dealing with the statement of P. W. 3 Rajendra Singh Kushwaha, I find that he stated that the recovery of money was to be effected from him for the shortages of fertilizer. The policemen were r uniform and it must have alarmed him. 12. Now dealing with the statement of P. W. 3 Rajendra Singh Kushwaha, I find that he stated that the recovery of money was to be effected from him for the shortages of fertilizer. He further stated that before issuance of recovery notice he had requested Bhaiya Lal not to do so and he promised that he will not allow the recovery to be effected against him and in lieu thereof he had demanded a sum of Rs. ISO/- as price for the favour. He had made a complaint to District Magistrate, Banda. Copy of that application is Ext. Ka-2. He has proved that application. He further stated that District Magistrate passed some order for A. D. M. (Finance) on it. He has further stated that his statement was recorded by S. D. M. , Banda. He has proved his signature on the same and further said that this statement was given by him volun tarily and whatever he had told to S. D. M. , Banda was correct. He had read his state ment before putting his signature over it. He had further proved that he had handed over a note of Rs. 100/- and another note of Rs. 50/- to S. D. M. , Banda and S. D. M. had put his initials on the same. A memo was also prepared for these two notes. The Deputy Superintendent of Police Shri O. P. Kakkar P. W. 6 was summoned there by S. D. M. on telephone who appeared there in a short time. The Sub-divisional Magistrate had given complete informa tion to the Circle Officer and handed over all the relevant papers to him and told him to conduct a trap against the appellant. In cross-examination he had admitted that the recovery was to be effected from him. He stated that correspondence was going on in this regard. According to him this recovery was 5%. In some cases it was 1% for the shortages. He had further stated that the appellant was working in Project Office. The order of recovery was issued by the Project Officer. He had denied that any order of recovery was already passed and had reiterated that only an action was being contemplated. The recovery was for the shortages of Urea, D. A. P. , Zinc and Sulphate from the store. The order of recovery was issued by the Project Officer. He had denied that any order of recovery was already passed and had reiterated that only an action was being contemplated. The recovery was for the shortages of Urea, D. A. P. , Zinc and Sulphate from the store. He was store keeper at that time. He had further stated that the Project Officer Lal Mani Ram had demanded bribe earlier from him. He ad mitted that had there been any order passed by Project Officer, the appellant could not have any concern with it mean ing thereby that in the event of existence of a recovery order the appellant was not in a position to help him. Whether Project Of ficer had issued any order of recovery on 29-3-184 he feigned ignorance. He had admitted that the Project Officer was demanding ghee regularly from him. Sometime payment was made and some time it was not made. On demanding the price of ghee Project Officer used to show his displeasure. He had very categorically stated that the Project Officer was accept ing bribe through appellant and has as serted that he had mentioned this fact in his complaint to the District Magistrate. From the statement of this witness it is available that he had told the appellant before passing the money that he is giving him a cheeze which you have demanded. cheeze literally means thing. This does not indicate that the money Was given to the appellant for preventing recovery of money from him for the shortages of fertilizer. He clearly, admitted that this appellant could not prevent if such an order came to be passed by his departmental head. 13. Taking up the statement of the P. W. 6 O. P. Kakkar, we find that this wit ness has stated that Rajendra Singh Kush-waha had told be appellant before paying the money that iur stalling the recovery from him this money (Rs. 150/-) as demanded by you as bribe is brought by him. Accept this money. The differences between the two statements made by P. W. 3 and P. W. 6 is significant. P. W. 3 has not stated any such thing in his statement. 150/-) as demanded by you as bribe is brought by him. Accept this money. The differences between the two statements made by P. W. 3 and P. W. 6 is significant. P. W. 3 has not stated any such thing in his statement. This diversity in the statement of P. W. 3 and P. W 6 on exact words of conversation is sig nificant in the context of the statement made by P. W 1 and P. W 2. It cannot be lost sight of that both P. W 1 and P. W. 2 have stated that they have not heard any conver sation then how can it be possible for the Court to accept that this witnesses can hear the conversation standing outside the room in the verandah with these two wit nesses. This witness P. W 6 was also stand ing nearby them. In the circumstances the statement made by P. W. 6 and P. W. 3 cannot be accepted on its face that Rs. 150/- given to the appellant was given as illegal gratification for stalling the the recovery as alleged. Moreover if the police party as already admitted by P. W. 1 and P. W 2 were in uniform and visible from the room to the person sitting inside as admitted to P. W 1 and denied by P. W 2 it is improbable that the appellant will accept the money from P. W. 3 especially if any conversation took place. He was facing towards the win dow at the relevant time. He will never accept the money and keep it in his pocket. Such a situation is not acceptable. It is highly improbable. 14. It will be necessary to mention that the notes were not processed with phenoptheline powder. This should have been done. It would have furnished at least some proof to the fact that money was accepted by the appellant. Although in the absence of any authentic conversation it cannot be said with certainty for what pur pose that money was given to the appel lant. The motive or the purpose behind a trap is a basic ingredient. In the absence of it no conviction under Section 5 (2) of Prevention of Corruption Act and Section 161, 1. P. C. is possible to uphold. 15. Even the purpose for which this money was to be given is not established beyond reasonable doubt. The motive or the purpose behind a trap is a basic ingredient. In the absence of it no conviction under Section 5 (2) of Prevention of Corruption Act and Section 161, 1. P. C. is possible to uphold. 15. Even the purpose for which this money was to be given is not established beyond reasonable doubt. It is on record that the order of recovery was already passed on 29-3-1984. This further goes to show that the appellant could not have helped him in this situation. It is admitted to P. W 3, the informant. It further estab lishes that probably the appellant did not oblige him. He was knowing, in all prob ability, the existence of this order other wise it would have been unequivocally denied by him, he had made an evasive reply which clearly indicates that he knew about its existence beyond reasonable doubt. The informant, P. W 3 was fully aware of its existence. An application was deliberately and purposely made against the appellant to the District Magistrate and trap was organised and arrest and recovery were effected just by way of revenge. 16. I do not find any valid reason to discard evidence of D. W 1 Ram Adhar who had very clearly stated that the appel lant had nothing to do with the recovery against shortages because he was dealing with these recovery matters. Even state ment of P. W. 3 Rajendra Singh also sup ports his evidence to a large extent. P. W. 3 stated that recovery order was in existence or not he cannot say. In other word his evidence clearly indicates that once there is a recovery order in existence then the appellant could not help him in stalling that recovery. Recovery of money was to be made from the appellant. In this case the allegations against the appellant were made with ulterior motive. As earlier dis cussed P. W. 3 was definitely in the know of the existence of the above recovery order. This is also the case set up by the appellant. It stands fully borne out. The prosecution has deliberately hoisted a false case against the appellant in collusion with P. W. 3 Rajendra Singh Kush-waha. 17. Copy of the recovery memo was neither handed over to the appellant nor his signatures were obtained on that. This is also the case set up by the appellant. It stands fully borne out. The prosecution has deliberately hoisted a false case against the appellant in collusion with P. W. 3 Rajendra Singh Kush-waha. 17. Copy of the recovery memo was neither handed over to the appellant nor his signatures were obtained on that. This also indicates the prosecution inasmuch as it shows that these recovery memos were prepared at the back of the appellant. The order of recovery came into existence on 29-3-1984. The complainant did not like this and in all probability decided to punish the appellant for his failure to ful fill his wish. Prosecution deliberately made no attempt to verify this fact. 18, For the reasons discussed above this appeal succeeds and is allowed. His conviction and sentence for the offence under Section 5 (2) Prevention of Corrup tion Act and Section 161, 1. P. C. is set aside. The appellant is on bail. He need not sur render. His personal bond is cancelled and sureties are discharged. Appeal allowed. .