Judgment M.L.Singhal, J. 1. Brij Bhushan (since dead) was clerk in the office of Sub Divisional Education Officer (SDEO), Kurukshetra. One Rakesh Kumar Garg and his wife Smt. Rekha Rani were serving as teachers in the Education Department of the Govt. of Haryana. Rakesh Kumar Garg was Drawing Teacher in Govt. High School, Samalkhi. His wife was posted as JBT teacher in a school in Mehdinipur, Block Shahbad. Some arrears were due to his wife pertaining to the summer vacation of the year 1994. Her claim was pending in the office of SDEO, Kurukshetra. Rakesh Kumar Garg met Brij Bhushan accused who was Clerk dealing with the preparation of bills for the drawal of arrears etc. He requested him to draw the arrears of pay due to his wife so that payment could be disbursed to his wife. Accused Brij Bhushan told him that if 10% of the amount of Rs. 1,000/- was paid as illegal gratification, then and then alone the arrears bill would be got cleared from the SDEO office. Since Brij Bhushan accused was in govt. service and he was asking for illegal gratification, he (Rakesh Kumar Garg), reported the matter to Shri K.K. Rao, DSP (Headquarters), Kurukshetra through written complaint Ex. PB. Shri K.K. Rao went to District Magistrate, Kurukshetra who vide endorsement Ex. PB/1 on complaint Ex. PB endorsed it to SDO (Civil), Thanesar. Thereafter, he along with his staff and Rakesh Kumar Garg came to the office of SDO (C), Thanesar where Rakesh Kumar Garg produced one currency note of the denomination of Rs. 100/- (Ex. P1). Currency note Ex. P1 was initialled by him. It was initialled by Shri K.K. Gupta, SDO (Civil), Kurukshetra. Currency note Ex. P1 was handed over by Shri K.K. Rao to Rakesh Kumar Garg in the presence of Shri K.K. Gupta, SDO(C), Kurukshetra. In this behalf, memo Ex. PA was prepared which was attested by Shri Rakesh Kumar Garg, Shri K.K. Gupta and constable Virender Kumar. Shri K.K. Rao P.W instructed Rakesh Kumar Garg to go and contact the accused and pass on the said currency note to the accused but only on demand by him. He directed constable Virender Kumar to accompany Shri Rakesh Kumar Garg P.W and act as shadow witness and witness the passing on of the currency note to the accused by Rakesh Kumar Garg on demand by him (accused). He directed constable Virender Kumar to accompany Shri Rakesh Kumar Garg P.W and act as shadow witness and witness the passing on of the currency note to the accused by Rakesh Kumar Garg on demand by him (accused). He further instructed constable Virender Kumar to raise signal by putting his hand on his head as soon as money was demanded and accepted by Brij Bhushan accused. After so instructing Rakesh Kumar Garg and constable Virender Kumar, he sent them to the accused. Rest of the raiding party stood near the office of SDEO, Kurukshetra. In the meantime, he received signal raised by constable Virender Kumar. On receipt of that signal, the raiding party headed by Shri K.K. Rao reached the office of SDEO, Kurukshetra. Accused was apprehended in the varandah in the office of Ramesh Chand Assistant on the identification of Rakesh Kumar Garg. Accused was asked to search the raiding party and on his refusal to do so, Shri K.K. Rao asked the accused to lay before them the currency note which he had taken from Rakesh Kumar Garg. Thereupon, the accused took out the said currency note from the left pocket of his pants which he was wearing. Ramesh Chand P.W was asked to compare the number of the Currency note recovered from the possession of the accused with the number lying entered in Farad Hawalagi Ex. PA. Number of the currency note recovered from the possession of the accused tallied with the number of lying entered in Farad Hawalagi Ex. PA. Currency note Ex. P1 recovered from the possession of the accused was bearing the initials of DSP Shri K.K. Rao and SDO (Civil), Thanesar Shri K.K. Gupta. Currency note Ex. P1 was made into a parcel which was sealed with seal bearing impression KK. Sealed parcel containing Ex. P1 currency note was taken into possession vide Ex. PD. Seal after use was handed over to Shri Ramesh Chand P.W. Memo Ex. PD was attested by Ramesh Chand, Shri K.K. Gupta, constable Virender Kumar, Rakesh Kumar Garg PWs. It was signed by Shri K.K. Rao as well. Thereafter, Shri K.K. Rao made endorsement Ex. PB/2 on complaint Ex. PB and sent it for registration of the case to PS City Thanesar. 2. After obtaining sanction Ex. from District Education Officer, Kurukshetra, the accused was challaned under Section 7, 13 of the Prevention of Corruption Act, 1988. It was signed by Shri K.K. Rao as well. Thereafter, Shri K.K. Rao made endorsement Ex. PB/2 on complaint Ex. PB and sent it for registration of the case to PS City Thanesar. 2. After obtaining sanction Ex. from District Education Officer, Kurukshetra, the accused was challaned under Section 7, 13 of the Prevention of Corruption Act, 1988. Accused was charged under Section 7, 13 of the Prevention of Corruption Act by Special Judge, Kurukshetra exercising the powers of trial under the Prevention of Corruption Act, 1988. Accused pleaded not guilty to the charge and claimed trial. 3. At the conclusion of the trial, Special Judge, Kurukshetra found the charge under Section 7, 13 of the Prevention of Corruption Act, 1988 proved against the accused. He accordingly convicted him thereunder and sentenced him to undergo R1 for 2 years and to pay fine of Rs. 300/- or in default to undergo further R1 for 4 months under Section 7 of the Prevention of Corruption Act, 1988. He further sentenced him to undergo R1 for 3 years and to pay fine of Rs. 500/- and in default to undergo further R1 for 6 months under Section 13 of the Prevention of Corruption Act, 1988 vide order dated 7/9.4.1999. Sentences were ordered to run concurrently. Not satisfied with the order convicting and sentencing him, Brij Bhushan accused came tip in appeal to this Court. 4. During the pendency of the appeal, Brij Bhushan died. His wife Smt. Sarita was allowed to continue this appeal as her contention was that if this appeal is allowed, she would try to get job in his place on compassionate grounds namely the ground of the death of her husband while in harness and further she will also try to have other benefits consequential upon the death of her husband in harness. 5. I have heard Shri Shamsher Singh Dinarpur, Advocate for Smt. Sarita, representing her late husband Brij Bhushan accused (convict) and Shri Sudhir Nehra, AAG, Haryana and have gone through the record. Rakesh Kumar Garg P.W.1 is the axle round which the whole case of the prosecution is revolving. So far as Rakesh Kumar Garg P.W.1 is concerned, he has not supported the prosecution case in all its essential particulars. He has stated that he went to Shri Krishan Lal Ashri in the office of SDEO, Thanesar who directed him to pay Rs. So far as Rakesh Kumar Garg P.W.1 is concerned, he has not supported the prosecution case in all its essential particulars. He has stated that he went to Shri Krishan Lal Ashri in the office of SDEO, Thanesar who directed him to pay Rs. 100/- to the dealing hand (Brij Bhushan clerk) as 10% of the arrears and then collect the balance amount. Thereafter, he went to the accused Brij Bhushan dealing clerk and gave him Rs. 100/-. He has stated that he contacted Shri Krishan Lal Ashri, Head Clerk of the office of SDEO, Thanesar who informed him that the office had drawn the arrears of his wife and he should collect the arrears from the dealing clerk (Brij Bhushan) after paying him 10% thereof as illegal gratification. He has thus not said that he went to Brij Bhushan accused. He has not stated that Brij Bhushan accused made any demand for money. He has not stated that he gave Rs. 100/- to Brij Bhushan accused pursuant to any alleged demand. He has thus gone completely away from what the prosecution case was. According to the prosecution, Brij Bhushan accused had demanded 10% of the arrears due to Smt. Rekha Rani and Rakesh Kumar Garg went to Brij Bhushan accused whom he offered 100 rupee currency note initiated by DSP Shri K.K. Rao and Shri K.K. Gupta, SDO(C), Thanesar and who accepted the amount reiterating his demand for illegal gratification. On the other hand, he has stated that he straight went to Shri Krishan Lal Ashri, Head Cleric in the office of SDEO, Thanesar and asked him to pay him the arrears. Krishan Lal Ashri told him that the amount of arrears had been drawn and he should collect the amount from Brij Bhushan accused and pay him 10% of the arrears as illegal gratification. On the request of Public Prosecutor for the State, Rakesh Kumar Garg was declared hostile. Public Prosecutor for the State cross-examined him at length. Despite cross-examination nothing favourable to the prosecution could be elicited. He kept sticking to his guns and stated that he never contacted Brij Bhushan accused and requested him to draw the arrears of his wife or he demanded 10% thereof as illegal gratification. Public Prosecutor for the State cross-examined him at length. Despite cross-examination nothing favourable to the prosecution could be elicited. He kept sticking to his guns and stated that he never contacted Brij Bhushan accused and requested him to draw the arrears of his wife or he demanded 10% thereof as illegal gratification. Instead, he stated that he contacted Shri Krishan Lal Ashri, Head Clerk who told him that the amount of arrears had been drawn and were lying with Shri Brij Bhushan accused. He could collect the arrears on payment of 10% thereof to Shri Brij Bhushan Clerk. He accordingly went to him, paid him Rs. 100/- and got the amount of arrears. It was suggested to him that he had paid a sum of Rs. 100/- as illegal gratification to the accused on demand by him, he denied this suggestion. He stated that he had collected the arrears after the raid and the amount of arrears was Rs. 1196. With the resiling of Rakesh Kumar Garg P.W.1 who was the main actor in the play, the prosecution case tumbled like a house of cards. With his resiling, the main ingredient of the office disappeared; namely the making of demand for bribe and the acceptance of the bribe pursuant to that demand. So far constable Virender Kumar is concerned, he has stated that Rakesh Kumar Garg entered the room while he stood outside the room near the window. Rakesh Kumar Garg asked the accused about the arrears of his wife and the accused replied that the arrears was ready. Rakesh Kumar Garg then delivered the currency note to the accused on his demand. There is no corroboration to the demand of Rs. 100/- as illegal gratification by the accused from Rakesh Kumar Garg. There should have been independent corroboration to the act of demand of bribe by the accused and the acceptance of the amount by him in reiteration of that demand. Rakesh Kumar Garg has no where stated that the accused made any demand for bribe. He has gone to the office of SDEO, Kurukshetra to collect the arrears. He contacted Krishan Lal Ashri who told him to come after 2 days. He had told him that the office had drawn the amount and he could collect the amount from the dealing clerk after paying him 10% of the amount as illegal gratification. He has gone to the office of SDEO, Kurukshetra to collect the arrears. He contacted Krishan Lal Ashri who told him to come after 2 days. He had told him that the office had drawn the amount and he could collect the amount from the dealing clerk after paying him 10% of the amount as illegal gratification. As per Rakesh Kumar Garg the accused was not present in the picture at all so far as the demand for bribe is concerned or so far as the acceptance of that amount in reiteration of that demand is concerned. As per Rakesh Kumar Garg, the demand was made by Krishan Lal Ashri Head Clerk and it was in pursuance of the demand made by him that he gave the amount to Brij Bhushan accused who was dealing clerk. 6. In this case, thus an important link in the chain of the proof of the prosecution case is missing; namely, the demand of bribe and the acceptance of the amount in reiteration of that demand by the accused. Mere recovery of money from his possession cannot be viewed as bribe money accepted by him pursuant to his demand for bribe. In this case, there is no evidence that the accused handled the currency note and put it in left pocket of his pants. in this case DSP K.K. Rao did not treat the currency note Ex. P1 with any phenolphthalein powder. He did not dip the hands of the accused, left pocket of the pants of the accused and the currency note after its recovery from the accused in any solution of sodium carbonate. It was held in Khilli Ram v. State of Rajasthan, 1985(1) Recent Criminal Reports 66 that without powder treatment, for the absence of which no explanation has been advanced, the prosecution story becomes liable to be rejected. Where a trap is laid for a public servant, it is desirable that marked currency notes which are used for the purpose of raid are treated with phenolphthalein powder so that handling of the said currency by public servant can be detected by chemical process and the Court does not have to depend upon oral evidence which is some times of dubious character for the purpose of deciding the fate of the public servant. It was held in Suraj Mal v. The State (Delhi Administration), AIR 1979 SC 1408 that mere recovery of money from the accused is not sufficient. In a case of bribery, mere recovery of money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. 7. In this case, there is no evidence to show that the accused ever demanded any bribe from Rakesh Kumar Garg. No wonder, he acted innocently under orders of his superior while accepting the marked currency note. 8. Rakesh Kumar Garg, Shri K.K. Rao, DSP, Shri K.K. Gupta, SDO (Civil), Thanesasr, constable Virender Kumar are all witnesses to the trap. There should have been independent corroboration to the statements of constable Virender Kumar etc. particularly when the main actor in the play i.e. Shri Rakesh Kumar Garg PW has knocked out the very bottom of the prosecution case. 9. For the reasons given above, this appeal succeeds and it is accordingly accepted. Conviction and sentence passed upon the appellant (since deceased) is set aside and he is acquitted of the charge framed against him. Fine, if paid, shall be refunded to his widow Smt. Savita.