ORAL JUDGMENT :- Heard Shri Mardikar, Advocate for the appellants and Smt. Dangre, Additional Public Prosecutor for the respondent State. 2. Criminal Appeal No. 322 of 2002 is filed by the original accused No.1 Bismillakha Salarkha Path an in Special Case No.3 of 1995. Appeal No. 499 of 2002 is filed by original accused No.2 in Special Case No.3 of 1995 - Kisan Nagorao Chipade. These appellants, for the sake of convenience are hereinafter referred to as accused Nos. 1 and 2 respectively and both these appeal convicting both the accused of offences punishable under sections 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 and sentencing the accused to suffer R. I. for one year in respect of the offence punishable under section 13(1)(d) of the Act and to pay a fine of Rs. 1,000/- in default to suffer R. I. for three months and further sentencing the accused to suffer R. I. for six months and to pay a fine of Rs. 1,000/-, in default to suffer R. I. for three months under section 7 of the Act and separately sentencing accused No. 2 to suffer R. I. for one year and to pay a fine of Rs. 2,000/- in default to suffer R. I. for nine months in respect of the offence punishable under section 12 of the Prevention of Corruption Act, 1988, are being disposed of together by this common judgment and order. 3. The brief relevant facts of the prosecution case are as under: (a) P. W. 4 - Kailash Onkar Tayde was a resident of Andura village and his house was situated next to his real brother P. W. 1 - Gajanan Onkar Tayde, P.W. 4 - Kailash was a person against whom several criminal cases under the Prohibition Act and N.D.P.S. Act were pending. (b) On 12-1-1995, at about 3.30 P.M., P. W. 4 Kailash Onkar Tayde was returning from his field. On the way, accused No.1 - Bismillakha and four other persons who were Police Constables by name Punjab, Ingle, Vitthal and village Kotwal Sahdeo Dhaberao mat him and asked him what was inside the bundle of gross which P. W. 4 - Kailash was carrying on his head. They searched the bundle of gross and according to P. W. 4 Kailash, they did not find anything. They searched the bundle of gross and according to P. W. 4 Kailash, they did not find anything. It is a case of P. W. 4 - Kailash that accused No.1 - Bismillakha then foisted a false prohibition case against him and took his signature on some document. Accused No.1 told P. W. 4 - Kailash that as there were many cases pending against him, he would be initiating externment proceedings against P. W. 4 - Kailash and that if Kailash did not want that externment proceedings should commence against him, Kailash should pay an amount of Rs. 3,000/- to accused No. 1 P. W. 4 Kailash was frightened and, therefore, agreed to pay the amount. Accused No.1 Bismillakha then informed P. W. 4 - Kailash that there was a warrant against him and thus he took Kailash and detained him in the police lockup at Ural. On the next day, i.e. on 13-1-1995, accused No. 1 produced Kailash before the Magistrate and Kailash was then released on bail. On being so released, Kailash said to have narrated all the facts on 13-1-1995 to his brother P. W. 1 - Gajanan. (c) It is a prosecution case that on 18-1-1995, there was a weekly market in Village - Andura. P. W. 4 Kailash had gone to the said weekly market. It is alleged that accused No.1 - Bismillakha came there, mat Kailash, took him aside and asked him as to when Kailash would pay him the amount of Rs. 3,000/-. Kailash informed accused No.1 that he would sell his she buffalo and would pay money to him. Kailash then came home and again informed about the entire incident occurring on 18-1-1995 to his brother P. W. 1 - Gajanan. (d) On 23-1-1995, P. W. 1- Gajanan, the brother of Kailash, went to meet accused No. 1 at Nimba fata. He met accused No. 1 there. He told accused No.1 that his brother Kailash was frightened and that his brother was a poor person and was not able to pay the amount of Rs. 3,000/-. Thereafter accused No. 1 told Gajanan that he should pay Rs. 2,500/-. P. W. 1 - Gajanan then told accused No. 1 that he would pay only Rs. 2,000/- and requested him not to start any externment proceedings against Kailash. Accused No. 1 asked Gajanan as to when Gajanan would be able to pay Rs. 3,000/-. Thereafter accused No. 1 told Gajanan that he should pay Rs. 2,500/-. P. W. 1 - Gajanan then told accused No. 1 that he would pay only Rs. 2,000/- and requested him not to start any externment proceedings against Kailash. Accused No. 1 asked Gajanan as to when Gajanan would be able to pay Rs. 2,000/-, to which Gajanan replied that he would pay it on the same day. Thereafter accused No.1 asked Gajanan to bring Rs. 2,000/- at Nimba police chowky on the next day. (e) On 23-1-1993, Gajanan then came to Akola and went to the Anti Corruption Bureau office. He carried an amount of Rs. 2,000/- with him. P. W. 7 - P. 1. Dhok was present in his office. Gajanan narrated all the incidents which had occurred earlier to P. 1. Dhok and his narration was reduced into writing and complaint was prepared and the same complaint was read over to Gajanan and his signature was obtained on the said complaint. This complaint has been proved by the prosecution and exhibited as Ex. 11 in the trial. P. I. Dhok then asked Gajanan to come to his office on the next day at 9.00 A. M. (f) Accordingly, on 24-1-1995, Gajanan once again attended the office of Anti Corruption Bureau at Akola at 9.00 A. M. when he reached the office of Anti Corruption Bureau, two panchas i.e. P. W. 2 - Purshottam Mokalkar and P. W. 3 - Narayan Kulkarni were sitting in the office. P. I. Dhok introduced Gajanan with other staff members in the office including the Dy. S. P. Idhole, Constable Deshmukh and Constable Gaffarkha P. 1. Dhok read out the complaint of Gajanan to the panchas and both the panchas made their signature on the complaint. Gajanan gave 20 currency notes of Rs. 100/- each to Shri Dhok. He handed over all his personal money and keys. P. I. Dhok took the personal search of Gajanan and his personal articles which were discovered were given back to him. Thereafter P. I. Dhok demonstrated the use of phenolphthalein solution. The twenty currency notes were coated with the said solution and P. I. Dhok gave instructions that a trap would be laid for accused No.1. P. I. Dhok took the personal search of Gajanan and his personal articles which were discovered were given back to him. Thereafter P. I. Dhok demonstrated the use of phenolphthalein solution. The twenty currency notes were coated with the said solution and P. I. Dhok gave instructions that a trap would be laid for accused No.1. The panchas, Gajanan, Police Constable Gaffarkha and Deshmukh were instructed to be a part of the group which would accompany P. i. Dhok during the laying of the trap. Gajanan and P. W. 2 Mokalkar were told that they should go ahead to the police outpost Nimba and that they would be followed by two staff members from Amravati. They were told that panch No.2 Kulkarni and others would also immediately follow. P. I. Dhok instructed Gajanan and P. W. 2 Mokalkar to go to police chowky Nimba and talk with accused No.1 about giving the amount of bribe demanded by accused No.1 for not filing the externment case against P. W. 4 Kailash. Gajanan was instructed that if accused No.1 demanded money then he should give the money by taking it out by right hand. If the said amount is taken by accused No.1, Gajanan was to give signal by scratching is head by left hand. He was further instructed if accused No. 1 told Gajanan to give the bribe amount to another person then Gajanan should give the said amount in presence of accused No. 1. P. I. Dhok instructed pancha Mokalkar to remain present with Gajanan in order to hear the conversation which will take place between Gajanan and accused No.1 P. 1. Dhok further instructed them that if accused No.2 asked them as to who was the person accompanying Gajanan, then Gajanan should tell that he was his maternal brother. P. I. Dhok instructed pancha No.2 - Kulkarni to remain with the trap party. After this, 13 persons left the Anti Corruption Bureau office and started in the vehicle including staff members and panchas and proceeded to Nimba village. The said vehicle - Jeep carrying all these persons stopped half a kms. away from Nimba village. P. I. Dhok then repeated the instructions given earlier to P. W. 1 Gajanan and pancha No. 1 Moka1kar and these two persons started towards police outpost Nimba by foot. The said vehicle - Jeep carrying all these persons stopped half a kms. away from Nimba village. P. I. Dhok then repeated the instructions given earlier to P. W. 1 Gajanan and pancha No. 1 Moka1kar and these two persons started towards police outpost Nimba by foot. The other staff members along with pancha No.2 - P. W. 3 Kulkarni stayed there. When Gajanan and Pancha No.1 Purshotam Mokalkar arrived at police chowky, they found that the police chowky was closed. Gajanan asked one person as to why the police chowdy was closed and he was told that accused No.1 might have gone to another village. Gajanan and Purshotam Mokalkar then retraced their steps and carne back to P. 1. Dhok and Gajanan told P. I. Dhok about the police chowky being closed and about learning that accused No. 1 might have gone to another village. Gajanan then told Dhok, he had met accused No.1 near Nimba fata on earlier day and, therefore, he might be found at Nimba fata. (g) The trap party then again boarded the jeep and came near Nimba fata. It may be mentioned here that the distance between Nimba police outpost and Nimba fata has come on record as being four kms. They reached Nimba fata at about 2.30 P. M. Once again P. I. Dhok repeated for the second time instructions given earlier. The jeep was stopped in front of office of the M.S.E.B. near Nimba fata P. I. Dhok told P. W. 1 Gajanan and pancha No. 1 - Purshottam Mokalkar that they should stand near the S. T. stand and the other persons from the trap party should remain scattered and stand wherever place was available for them. Gajanan and Mokalkar were standing in front of the S. T. Stand shed. (h) Soon Raju, son of Kotwal of Andura village happened to come along. He told Gajanan that accused No.1 had come to Andura village and had gone to the house of Gajanan. Raju also narrated this fact to pancha No. 1 - Mokalkar. On hearing this, Gajanan and Mokalkar went to P. I. Dhok and told him that accused No.1 had been to village Andura and further told P. I, Dhok that accused No.1 may come to Nimba fata, which fact was also narrated by Raju. Raju also narrated this fact to pancha No. 1 - Mokalkar. On hearing this, Gajanan and Mokalkar went to P. I. Dhok and told him that accused No.1 had been to village Andura and further told P. I, Dhok that accused No.1 may come to Nimba fata, which fact was also narrated by Raju. The P. I. Dhok again told Gajanan and Mokalkar to stand by the side of S. T. stand. (f) After sometime, Gajanan saw accused No. 1 coming by crossing Shegaon road. Gajanan pointed this out to Mokalkar. Accused No.1 then carne towards Gajanan and then Gajanan, Mokalkar and accused No. 1 started towards Hotel known as Sharad Rotel situated at a short distance from the S. T. stand. Accused No. 1 asked Gajanan as to who was the person accompanying him. Gajanan replied that the said person was his maternal brother from village Kautha. Accused No.1 told Gajanan that he had not seen any such person at Kautha, upon which Gajanan told accused No.1 that his maternal brother was working at M.LD.C. Akola. Accused No. 1 asked P. W. 2 - Purshottam Mokalkar to go. Gajanan told accused No.1 that his maternal brother has come for settlement of his marriage and Gajanan was required to accompany him. Thereafter, Gajanan, Mokalkar and accused No.1 reached Sharad Hotel. They sat on the bench in front of the said hotel. Gajanan and Mokalkar were facing South and accused No.1 was facing North. There was a table between them. It so happened that P. 1. Dhok, in the meanwhile was taking tea in the said hotel and P. 1. Dhok left the hotel after taking tea. Accused No. 1 then gave order for three cups of tea which were brought and all the three were then enjoying their tea. (j) It is the prosecution case that in the meanwhile, police constable Punjab and one unknown person came to the said hotel. Accused No.1 gave an order for two cups of tea for these two persons also. Police Constable Punjab and unknown person were sitting on the side of accused No.1. Police Constable Punjab told accused No.1 that he had work at Nimba and he was going to police outpost Nimba. He also told accused No. 1 that the unknown person was his wifes brother. Police Constable Punjab and unknown person were sitting on the side of accused No.1. Police Constable Punjab told accused No.1 that he had work at Nimba and he was going to police outpost Nimba. He also told accused No. 1 that the unknown person was his wifes brother. It is the prosecution case that this unknown person was the person who is accused No.2 - Kisan Chipade. Then Police Constable Punjab left the hotel and accused No.2 remained seated in the side of accused No.1. (k) It is the prosecution case that at this point of time. Accused No.1 asked Gajanan whether he had brought the money. Gajanan replied in the affirmative and accused No.1 told him to pay the money, at which Gajanan took out the money by his right hand from his left side shirt pocket and put his hand before accused No.1. Accused No.1, however, told him to give the money to accused No. 2 - Kisan Chipade. Gajanan then given Rs. 2,000/- to accused No. 2 Chipade in the presence of accused No.1 and panch No.1 - Mokalkar. Accused No.2 Chipade took the money from Gajanan in his right hand and counted the same by using both the hands. After counting the money, he kept the money in the right side pocket of his full pant. Thereafter, as per the directions of P. I. Dhok, Gajanan gave a signal by rubbing his head by left hand and two constables rushed at the spot immediately and caught both hands of accused No.2 Chipade and thereafter P. 1. Dhok, Dy. S. P. Idhole, Police Constable Gaffarkha, Police Constable Deshmukh and other staff members came to the spot immediately. (l) Thereafter, P. I. Dhok started the preparation of post trap panchanama. When Gajanan dipped the fingers of his right hand, the colour of the solution turned violet. The other samples of the solution also turned violet when the left hand shirt pocket of Gajanan was dipped in the solution. A glass containing the solution was than brought near accused No. 2 - Chipade and Chipade was directed to dip the left hand in the solution, once again the colour of the solution turned to violet. (m) Thereafter, P. I. Dhok read out the complaint on behalf of the State and sent the same for registration along with P. W. 5 - Gaffarkha Khan. (m) Thereafter, P. I. Dhok read out the complaint on behalf of the State and sent the same for registration along with P. W. 5 - Gaffarkha Khan. The said complaint was proved by the prosecution and Exhibited as Ex. 75. P. I. Dhok proceeded to search the house of accused No.1 - Bismillakha but found nothing incriminating. He then went to the police chowky, Nimba and seized the. Station diary, Petrol book, Summons warrant register and Case diary. He arrested the accused, recorded the statement of witnesses, completed investigation, sought and received sanction and filed the charge sheet. Eventually, the matter was committed to the Special Court and case was numbered as Special Case No.3 of 1995. 4. In the trial, the prosecution examined in all eight witnesses, P. W. 1 -Gajanan - complainant, P. W. 2 Purshottam Mokalkar, first pancha, P. W. 3 -Narayan Kulkarni, second pancha, P. W. 4 - Kailash Tayde, brother of Gajanan, P. W. 5 - Gaffarkha, Police Constable, who registered the complaint, P. W. 6 -Vilas Deshmukh, Police Constable who had carried the articles to chemical analyser, P. W. 7 - Subhash Dhok, P. I, Investigating Officer, P. W. 8 -Suryapratap Gupta, the officer who had issued the sanction order. 5. The defence did not led any defence evidence but the defence can be gathered through suggestions made to the prosecution witnesses as well as the explanation given in the 313 statements. It was a defence of accused No. 1 that the accusation against him were false. He contended that he was the incharge at outpost Nimba from 4-8-1993 and 18 villages including Andura were in his jurisdiction. He contended that Kailash was a criminal, who used to sell liquor and ganja. That on 12-1-1995, he along with P. C. Solanke, Police Constable -Punjab had been to arrest Kailash as the warrant had been issued against Kailash and as he came to know that Kailash was distilling liquor, he and his party had gone in the direction or river in which direction Kailash was known to have gone. When they met him he was carrying a bundle of grass on his head, he was searched and it was found to conceal a liquor can of five litres. Accused No.1 arrested Kailash and Kailash was abusing the police party and saying that he was known as Kailash Dada and he should be released. When they met him he was carrying a bundle of grass on his head, he was searched and it was found to conceal a liquor can of five litres. Accused No.1 arrested Kailash and Kailash was abusing the police party and saying that he was known as Kailash Dada and he should be released. Accused No.1 told him that he would give him bail and once they reached the village, Kailash was released in the prohibition case but was detained under the warrant issued by Belapur Court. Kailash threatened accused No.1 that he should be released or he would involve accused No. 1 in a false case. Accused No. 1 did not yield to his threat and locked him up in the police lock up. He claimed that Kailash and his brother Gajanan and other members of the family had conspired to falsely implicate him. That he had never demanded or received any money. Accused No.2 in his defence stated that he was a driver and used to deal with P. W. 1 - Gajanan and used to fetch cutlery articles for him from Akola to Nimba fata. He contended that he had made several trips for Gajanan and Gajanan was required to pay him an amount of Rs. 2,000/- by way of fare charges. He contended that on 23-1-1995, he received a telephone call from Gajanan Tayde asking that he should come to Nimba fata shop for receiving the amount of fare due to him. Accused No. 2 told Gajanan that his fare charges would go waste and, therefore, asked Gajanan if he was willing to meet him. Gajanan again told accused No.2 to come in the noon. Accused No.2 came there in the noon. Gajanan came at about 4.00 to 4.30 P. M. On meeting, accused No.2 told Gajanan that he should be given the due amount of Rs. 2,000/-. Gajanan told him to wait for some time as the money was with his guest. He told accused No.2 that he would wait there and on the arrival of the guest, he would phone accused No.2 from the pan stall. After about half an hour, Gajanan signalled accused No.2 and hence accused No.2 went near Pan stall. Gajanan took out the money and gave the same to accused No.2, which he kept in his pocket. He told accused No.2 that he would wait there and on the arrival of the guest, he would phone accused No.2 from the pan stall. After about half an hour, Gajanan signalled accused No.2 and hence accused No.2 went near Pan stall. Gajanan took out the money and gave the same to accused No.2, which he kept in his pocket. He claimed that he had made an entry in respect of money due to Gajanan in his diary. He claimed that he had no relation with accused No. 1 Bismillakha. 6. After taking into account all the material on record, the trial Court by the impugned judgment and order proceeded to convict the accused as aforesaid. 7. The contentions made on behalf of the appellants can be summarized as under: (a) As regards the first demand dated 12-1-1995, it was contended that making of such demand should not be believed because the Police Patil Sahedo Dhaberao, Police Constable Punjab, Police Constable Ingle, Police Constable Vilas Solanke, who were all independent Police officers in whose presence the demand was allegedly made were not examined. There was no charge framed in respect of the demand said to be made on 12-1-1995. That the sole witness who talked of such demand being made on 12-1-1995 was P. W. 4 - Kailash and the record indicated that not only Kailash was the person with a long criminal record but that Kailash was also inimical to accused No.1 insofar as admittedly on 12-1-1995, accused No.1 had lodged a complaint against Kailash for the offence under the Bombay Prohibition Act and had also arrested Kailash in pursuance of a warrant issued by the Court and looked him up for a period of one day. In this regard, it was contended that there was enough cause and motive for Kailash to get even with accused No.1 (b) As regards second demand said to have been made on 18-1-1995, it was contended that once again, the only witness for proving the demand was Kailash, who was admittedly on enimical terms with the present accused No.1 and had reason to feel aggrieved by the actions of accused No. 1. It was contended that according to Kailash he had mentioned about this demand to his brother P. W. 1 - Gajanan but Gajanan in his substantial evidence nowhere talked about any disclosure of such demand being made by his brother Kailash. It was contended that it would be unsafe to rely upon the uncorroborated testimony of Kailash. (c) As regards the third demand said to have been made by accused No.1 to Gajanan on 23-1-1995, it was contended that there was no charge relating to the making of this demand on 23-1-1995. The evidence of P. W. 1 Gajanan in respect of the making of such demand was vague as no time was given as to when this demand was made. Even P. W. 1 Gajanan, who was a complainant, was a real brother of Kailash whom accused No. 1 had locked up for one day therefore he could be said to be having a grudge against accused No.1. That the story of making of this demand on 23-1-1995 rested on the sole testimony of the complainant and could not be. accepted without corroboration, which corroboration was not forthcoming. It was contended that the fact that P. W. 1 -Gajanan had gone to the Anti Corruption Bureau office along with Rs. 2,000/-indicated that he was sure that the action would be taken by Anti Corruption Bureau and that this was also indicated that there was preplanning for involving accused No.1 in this particular crime. (d) As regards fourth demand said to have been made by accused No.1 to Gajanan on 24-1-1995 at Sharad Hotel, it was contended that this entire story should be disbelieved as unnatural because having found that the police chowky as closed, there was no reason for the trap party to go to Nimba fata, which was 4 Ians. away. The explanation given for going there was that Gajanan had met accused No. 1 there on the previous day and therefore felt that he would likely to meet accused No. 1 on the day of the raid also. This explanation was not logical as merely because accused No. 1 had met Gajanan at Nimba fata on the previous day, there could be no reason or logic as to why he could be there on the next day. This explanation was not logical as merely because accused No. 1 had met Gajanan at Nimba fata on the previous day, there could be no reason or logic as to why he could be there on the next day. It was contended that in any case it was difficult to believe that a police party consisting of about nine persons would allow Gajanan to lead them to some other place merely on his belief that accused No.1 would be found at Nimba fata. It was contended that nobody knew that accused No.1 would be found at Nimba fata and would proceed to Sharad Hotel. That in any case, according to the prosecution, there was no reason whatsoever for Police Constable Punjab and Accused No.2 to come to Sharad Hotel since they would have no knowledge that Gajanan and accused No.1 would be having a cup of tea at Sharad Hotel. It was contended that it was the prosecution case that accused No. 2 Chipade was not knowing accused No. 1 and was introduced by Police Constable - Punjab as his relative. It was contended that it was unreasonable and difficult to believe that accused No. 1 would ask Gajanan to give the money to a unknown person like accused No. 2 - Chipade. It was contended that the fact that Chipade came there was more in consonance with the defence story that Chipade was called by Gajanan since Gajanan knew that he would be ultimately proceeding to Sharad Hotel. That in any case the prosecution ought to have examined Police Constable - Punjab, who was a police officer and, therefore, an independent witness. Particularly, Police Constable Punjab could have shed light as to whether the version of the complainant regarding his coming there with accused No.2 was correct. (e) As regards the acceptance it was contended that the acceptance of the money was admittedly by accused No.2 but the defence version which gave the reason as to why it was accepted was more probable. It was contended that accused No.2 had claimed that the amount received by him was in repayment of the dues of hire charges which dues he entered into a diary. It was contended that accused No.2 had claimed that the amount received by him was in repayment of the dues of hire charges which dues he entered into a diary. It was contended that the diary was in fact carried on the relevant day by accused No. 2 and the fact that in fact he carried such a diary which had accounts monitored was admitted by P. I. - Dhok in his evidence. It was contended that admittedly both the accused had given written explanations to P. I. - Dhok and the giving of such explanations were recorded in the post trap panchnama, which was proved and relied upon by the prosecution. It was contended that the giving of such immediate explanations and non production of these written explanations said to be signed by P. I. Dhok and panchas was a circumstance in favour of the accused on the basis of which an adverse inference should be drawn against the prosecution. It was contended that P. I. Dhok also did not choose to refer to giving of such explanation by the accused and had not chosen to give any reason as to why such explanations were not produced by the prosecution in the Court. It was contended that the Court thus was required to draw an adverse inference under section 114 illustration (g) of Indian Evidence Act. 8. The reply on these points as given by the learned Additional Public Prosecutor was as under: (a) That as regards the first demand dated 12-1-1995, it was not necessary for the prosecution to examine each and every person who was witness to the demand. That the evidence of P. W. 4 - Kailash as regards the first demand was not shaken in the cross-examination. That the non framing of the charge relating to the first demand had caused no prejudice to the accused because the facts pertaining to this first demand can be found in the charge though there is a mistake in the typing of the date as 13-1-1995 and that Kailash cannot be disbelieved merely on the ground that he was inimical to accused No.1. (b) That as regards the second demand said to have been made on 18-1-1995, the evidence of Kailash in this regard was not shaken in the cross-examination and hence the making of such demand should be believed. (b) That as regards the second demand said to have been made on 18-1-1995, the evidence of Kailash in this regard was not shaken in the cross-examination and hence the making of such demand should be believed. (c) As regards the third demand said to have been made by accused No.1 to Gajanan on 23-1-1995, the non framing of a charge pertaining to such a demand has caused no prejudice to the accused. That the evidence of P. W. 1, Gajanan should be read as a whole and it indicated that the third demand was made in the morning of 23-1-1995. That the corroboration of this demand alleged to have been made on 23-1-1995 could be found in his own complaint. That merely because P. W. 1 - Gajanan had gone to the office of the Anti Corruption Bureau along with Rs. 2,0001- did not indicate that there was any preplanning for involving accused No.1 in a crime. (d) As regards the fourth demand said to have been made by accused No.1 to Gajanan on 24-1-1995 at Sharad Hotel, it was not unnatural that the trap party had come to Nimba fata because after learned that accused No.1 had gone to another village as it was natural to come to a place where four roads met so that the accused could be accosted on his return from any direction. That accused No. 1 must have asked Gajanan to give money to accused No.2 - Chipade because he was suspicious of the presence of P. W. 2 - Purshottam Mokalkar which could be seen from the fact that he had asked Gajanan as to who the person accompanying him was. That the non examination of police constable Punjab was not fatal to the prosecution as the evidence indicated that Punjab had left the place immediately and not witnessed either the demand or the acceptance. (e) That as regards the acceptance, the defence version given by accused No. 2 as to why the money was accepted was not probable or believable. That non production of the written explanations given by accused to P. I. Dhok was not fatal to the prosecution and merely because such written explanations were not produced on the record by the prosecution, adverse inference could not be drawn against the prosecution. 9. I have perused the record and heard both sides. That non production of the written explanations given by accused to P. I. Dhok was not fatal to the prosecution and merely because such written explanations were not produced on the record by the prosecution, adverse inference could not be drawn against the prosecution. 9. I have perused the record and heard both sides. I find that benefit of doubt would have to be given to the accused for the following reasons: (a) As regards the first demand said to have been made by accused No. I to P. W. 4 - Kailash on 12-1-1995, it cannot be lost sight of that P. W. 4 - Kailash was a witness who had good reason to have a grudge against accused No.1. The record indicates that accused No.1 was a Police Officer entrusted with the duty of executing a non-bailable warrant against P. W. 4 - Kailash for an earlier crime. P. W. 4 - Kailash was a person against whom there were several earlier criminal cases. His presence was required for one of the case and Court had issued non-bailable warrant against him. Accused No. 1 was on duty to execute the warrant. When he met Kailash on 12-1-1995, admittedly he executed the said warrant against Kailash. The record also indicates that on 12-1-1995, when accused No. 1 finally caught up with Kailash for execution of warrant, he found that Kailash was carrying a can of liquor concealed in a bundle of grass on his head. No doubt Kailash denies this defence version put up by accused No.1 and contends that there was nothing concealed in the bundle of grass but the defence version is corroborated by the fact that on 12-1-1995 accused No. 1 had registered his complaint under section 66B of the Bombay Prohibition Act, in which it is specifically mentioned that a five liter country liquor can was recovered at 4.00 P.M. on 12-1-1995. As far as the incident of this first demand said to have been made on 12-1-1995 is concerned, the prosecution admitted that there were several independent Police Officers who were present at the spot. They were Police Constables Punjab, Ingle, Vitthal Solanke and Village Kotwal Sahdeo Dhaberao. Any of the witnesses would have corroborated the story of the prosecution as given by P. W. 4 - Kailash. They were Police Constables Punjab, Ingle, Vitthal Solanke and Village Kotwal Sahdeo Dhaberao. Any of the witnesses would have corroborated the story of the prosecution as given by P. W. 4 - Kailash. Since three of these persons are Public Servants, it would have been a simple matter to produce them as witnesses. However, the prosecution has chosen not to examine any of these witnesses. The advocate for the appellant brought to my notice the observations of the Apex Court in the case of Sat Paul vs. Delhi Administration, reported in (1976) 1 see 727, pertaining to the manner in which the evidence of witnesses with poor moral fibre and having to their discredit a heavy load of bad antecedents has to be appreciated. The Apex Court in para 23 of the judgment has observed as under: "It is true that there is no absolute rule that the evidence of an interested witness cannot be accepted without corroboration. But where the witnesses have poor moral fibre and have to their discredit a heavy load of bad antecedents, such as those of PW s 1, 2, 7 and 8, having a possible motive to harm the accused who was an obstacle in the way of their immoral activities, it would be harzardous to accept their testimony in the absence of corroboration on crucial points from independent sources. " In view of the above, I feel that it will be dangerous to rely on the sole uncorroborated testimony of P.W. 4 Kailash insofar as the alleged demand said to have been made by accused No.1 to him on 12-1-1995. (b) As regards second demand said to have been made on 18-1-1995, I am not inclined to believe P. W. 4 Kailash as for the same reason that Kailash was a unreliable person who has motive to falsely implicate accused No. 1. It is pertinent to note that according to his deposition in the Court, he mentioned about this demand made by accused No. 1 to his brother P. W. 1 Gajanan, however, a glance at the evidence of P. W. 1 Gajanan would indicate that Gajanan makes no reference whatsoever about any such disclosure being made by his brother Kailash to him. Thus evidence of Gajanan does not corroborate the evidence of P. W. 4 - Kailash as regarding the accused having met P. W. 4 Kailash in the village market and having demanded an amount of Rs. 3,000/-from him. This is an additional reason which throws a doubt on the uncorroborated version of P. W. 4 Kailash Tayde about accused No.1 having asked him as to when he would pay an amount of Rs. 3,000/- after meeting him in the village market. Kailash also states that he had informed his brother Gajanan that he would sell his she buffalo in order to meet the demand of accused No. 1. This version of P. W. 4 also finds no corroboration in the evidence of P. W. 1 - Gajanan. (c) As regards third demand said to have been made by accused No.1 to Gajanan on 23-1-199.5, it must firstly be said that Gajanan, the complainant, is obviously an interested witness because he is a real brother of Kailash against whom accused No.1 had registered a case under the Bombay Prohibition Act and whom accused No.1 had arrested on 12-1-1995. The evidence of Gajanan must, therefore, be carefully scrutinised. It must also be borne in mind that Gajanan is a complainant in a trap case under the Prevention of Corruption Act. The Apex Court in the case of Jaswantsingh vs. State of Punjab, reported in AIR 1973 SC 707 laid down the law as to the manner in which the evidence of the complainant in a case under the Prevention of Corruption Act should be appreciated. The relevant observations of the Apex Court are as under: "As P. W. 1 is the complainant, his evidence will have to be considered with great caution and it will not be ordinarily safe to accept his interested testimony unless there is material corroboration found in the other evidence adduced by the prosecution." We will, therefore, have to see if we can find material corroboration to the evidence of Gajanan relating to the demands said to have been made by accused No. 1 to him on 23-1-1995. In this regard, one would normally have expected a corroboration of the events which are said to have taken place on 23-1-1995 from the evidence of P. W. 4 - Kailash. In this regard, one would normally have expected a corroboration of the events which are said to have taken place on 23-1-1995 from the evidence of P. W. 4 - Kailash. It is a prosecution case that Kailash had informed about the demands said to have been made by accused No.1 to him on 12-1-1995 and 18-1-1995 immediately to his brother Gajanan - P. W. 1. Further it is the prosecution case that Gajanan went to meet Accused No. 1 in order to help his brother P. W. 4 - Kailash and to sort out the matter on his behalf. According to the prosecution, on 23-1-1995, he met Head Constable Bismillakha Pathan at Nimba fata and had managed to settle the matter with accused No.1 at the reduced demand of Rs. 2,0001-. Thereafter, according to the prosecution, he decided that instead of paying this money to accused No.1, he should take the step of trapping accused No. 1 through the Anti Corruption Bureau. One would have expected that such an important step which was being taken for the benefit of his brother Kailash, would have been made known to Kailash. However, the evidence of Kailash is completely silent about any such knowledge. On reading the evidence of Kailash, it is clear that after telling his brother about the alleged demand made by accused No.1 on 18-1-1995, the next piece of information which he received from his brother on 24-1-1995 was to the effect that the accused had already been caught accepting the bribe of Rs. 2,000/- from Gajanan. The lack of corroboration from Kailash regarding the demand for a bribe made by accused No. 1 from Gajanan on 23-1-1995 is one more circumstance that strikes the mind. It is also not clear as to how P. W. 1 -Gajanan met accused No. 1 at Nimba fata where the said demand is said to have been made. It must be borne in mind that it is not the prosecution case that the meeting was fixed by prior arrangement at Nimba fata. Normally speaking, the Police Officer would have been approached either at his residence or at the police chowky. P. W. 1 - Gajanan has given no explanation in his evidence as to why and how he chose to meet or did meet accused No.1 at public place at Nimba fata. Normally speaking, the Police Officer would have been approached either at his residence or at the police chowky. P. W. 1 - Gajanan has given no explanation in his evidence as to why and how he chose to meet or did meet accused No.1 at public place at Nimba fata. The exact time of the meeting is also not given by this witness. The village where this witness resides i.e. Andura is 6 to 7 kms. from Nimba fata. It is difficult to believe that he would expect to find accused No.1 there. He does not state that he had any prior knowledge that he would find accused No.1 at Nimba fata 6 to 7 kms. away from his place. All these factors lead me to disbelieve the story of the third demand notwithstanding some corroboration to this story from his own first information report. (d) Then we come to the fourth demand and acceptance which are said to be events which happened on 24-1-1995. There are several reasons which lead me to look upon this part of the story of the prosecution with suspicion. It is the prosecution case that it had been agreed between accused No.1 and P. W. 1 -Gajanan that they were to meet at the police chowky at Nimba for payment of the agreed bribe amount of Rs. 2,000/-. It is also the prosecution version that when the trap party arrived at the said police chowky, they found that the police chowky was closed. Normally speaking, one would have expected that the intended trap would be dissolved and postponed to a subsequent occasion to be fixed after ascertaining a proper time and place for a meeting with accused No.1. However, the version of Gajanan is that just because he had met accused No.1 at Nimba fata the previous day, he thought that they should proceed to Nimba fata as accused No.1 may be found there. It may be emphasized that according to Gajanan when he found the police chowky locked, he learned from a person nearby that the accused might have gone to another village. He had not learnt that the accused had gone to Nimba fata. It is also difficult to believe that the police and panchas would blindly allow the complainant to lead them on a wild goose chase without knowing the exact whereabouts of accused No. 1. He had not learnt that the accused had gone to Nimba fata. It is also difficult to believe that the police and panchas would blindly allow the complainant to lead them on a wild goose chase without knowing the exact whereabouts of accused No. 1. It must not be lost sight of that Nimba fata is four kms. away from the said police chowky. The argument that the trap party must have gone to Nimba fata because that is the place where four roads converge and therefore that was the place where the accused was most likely to cross while returning to village from where he had gone to, seems most illogical as nobody new the time as to when accused No. 1 was to return. Even more strange is the prosecution version that after meeting accused No. 1 at Nimba fata, the pancha P. W. 2 - Mokalkar and P. W. 1 Gajanan proceeded with the accused to Sharad Hotel where immediately thereafter Police Constable Punjab came along with accused No.2. Even assuming that P. W. 1 Gajanan has gone to Nimba fata in the off chance of finding accused No. 1 and further assuming that he has managed to persuade the large police party to accompany him there with panchas, I find it very difficult to believe that accused No.2 and Police Constable - Punjab arrived at the same hotel near Nimba fata as a matter of co-incidence. Even more strange is the conduct of the Police Constable - Punjab, who came there and said to have introduced accused No.2 as his relative to accused No. 1 and immediately left the hotel. The prosecution could have examined Police Constable Punjab to bring on record the circumstances under which they happened to come to Hotel Sharad, precisely at the same time when accused No. 1 was seated there along with Gajanan and Mokalkar. Again when Gajanan offered the money to accused No.1, it is strange that accused No. 1 asked Gajanan to give the money to accused No.2 who, according to the prosecution, had just been introduced to him. The prosecution has not brought anything on record to indicate that accused Nos. 1 and 2 knew each other. To my mind, all these strange co-incidences throw a doubt on the story given by Gajanan. The prosecution has not brought anything on record to indicate that accused Nos. 1 and 2 knew each other. To my mind, all these strange co-incidences throw a doubt on the story given by Gajanan. The advocate for the appellants drew my attention to certain observations made by this Court when faced with a similar story in the case of Ramdas vs. State of Maharashtra, reported in 1996 Cri.L.J. 1848. In the said case, this Court disbelieved the prosecution version about giving hot chase to the accused who was not found at the place where a meeting between the complainant and accused had been arranged for payment of bribe. The observations of this Court in the said case are as follows: "That apart, the further story that the raiding party waited for the accused to come firstly on the same night and secondly for almost the whole day on the next day appears to be really puzzling. If the accused did not come as per the version of the complainant, then that should have been normally the end of it. In this case, the investigating officer seems to have gone a step ahead in giving a hot chase to the accused. Having waited for the accused and seeing that the accused had not turned up, the trap should have been dissolved. Instead, as per the version of the panch, Thakare investigating officer himself told that well if the accused had not come upto the house of the complainant, then the raiding party should go to the accused. Not only did they go behind the accused but literally chased him by firstly going to his house and not finding him there, going to the S. T. stand and not finding him to be there, going to the police station. Thus, it appears as if the raiding party was out to implicate the accused. " The feeling that I carry is that the meeting at Sharad Hotel was arranged by somebody and it was known that all the persons involved would ultimately converge at this place. To my mind, the only person who could have arranged this meeting was Gajanan himself and it is in this background that the defence version given by accused No.2 must be appreciated. To my mind, the only person who could have arranged this meeting was Gajanan himself and it is in this background that the defence version given by accused No.2 must be appreciated. It is his specific defence that he was called by Gajanan to a Pan Thela which was situated at Sharad Hotel on the pretext of paying his dues. The defence version further was that when he went to pan thela, accused No.2 was carrying a diary containing the accounts of the dues payable from Gajanan. The dues so payable were on account of the fact that accused No.2 had been ferrying cutlery articles on behalf of Gajanan from Akola to Nimba fata and that he had not been paying hire charges for such work. Gajanan in his examination-in-chief stated that he is a cutlery dealer. P. I. - Dhok has also admitted in his evidence that when accused No. 2 was accosted at the time of trapping, he was carrying a diary with accounts written on it. This diary, according to P. I. Dhok, was returned back to him. These are the circumstances, which favour the defence version. However, there is one more important circumstance and i.e. the statement to be found in the post trap panchanama to the effect that immediately after the trap was sprung, both the accused were asked by P. I. Dhok and they gave their version regarding acceptance of money. It is the express prosecution case which can be found in the panchnama that the version given by accused was reduced to writing and signed by the panchas as well as P. 1. Dhok. The contents of what was mentioned in these two writings was not found in the panchanama as those were separate documents. However, for reasons best known to the prosecution, these documents have not been brought before the Court in the trial. The panchas examined as well as P. W. 7 Dhok but do not uttar a single word about this first version given by the two accused in writing immediately after the trap was sprank. This circumstance of suppressing the first version as given by two accused, according to him, is a very important circumstance which raises a shadow of doubt about the veracity of the prosecution case. The duty of the prosecution is to bring the entire truth as found before the Court. This circumstance of suppressing the first version as given by two accused, according to him, is a very important circumstance which raises a shadow of doubt about the veracity of the prosecution case. The duty of the prosecution is to bring the entire truth as found before the Court. It appears to me that these two vital documents have been kept back from the trial. In my view, in such circumstances, these writings were evidence which could not produced and which were in the hands of the investigating agency and which could have been produced as evidence in the Court but was not produced. By virtue of section 114 of the Indian Evidence Act, the Court would be entitled to presume that had these documents been produced, they would not have favoured the prosecution which had withheld these documents. Useful reference can be made to illustration (g) of section 114 of the Indian Evidence Act, in this regard. 10. I feel that the aspects which are mentioned in this judgment are missed by the trial Court while recording the conviction. 11. The learned Additional Public Prosecutor argued that a presumption would arise in favour of the prosecution under section 20 of the Prevention of Corruption Act, 1988, that the accused had accepted the gratification has a motive or reward for doing or forbearing to do any official work or for showing or forbearing to show in the exercise of his official function, favour or disfavour or for rendering or attempting to render any service or disservice to any person. Reference was also made to a judgment of the Apex Court in the case of M. Narsinga Rao vs. State of Andhra Pradesh, reported in 2001 Cri.L.J. 515. The observations made by the Apex Court are contained in para 14 of the said judgment, which reads as under: "When the sub-section deals with legal presumption it is to be understood as in terrorum i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The only condition for drawing such a legal presumption under section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted for agreed to accept gratification. Direction evidence is one of the modes through which a fact can• be proved. But that is not the only mode envisaged in the Evidence Act." 12. However, it is well settled that the contention for drawing such a conclusion is that during the trial it should be proved that the accused has accepted or agreed to accept any gratification (other than legal remuneration) any valuable thing from any person. In the present case, there is doubt as to whether the amount admittedly received by accused No.2 was gratification, other than legal remuneration. 13. In this view of the matter, in my view, the Criminal Appeals must succeed. The impugned judgment and order passed by the Special Judge, Akola, on 29-5-2002, in Special Case No.3 of 1995 is quashed and set aside and the accused are acquitted of charges under sections 7 and 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988. Accused No. 2 is also acquitted of charge under section 12 of the Prevention of Corruption Act, 1988. The accused will be entitled to refund of fine, if paid. The accused in custody will be released forthwith, if he is not wanted in any other crime. Appeals allowed.