Judgment :- Criminal Appeal preferred against the judgment passed by the learned Special Judge, Vellore, in S.C.No.1 of 1993, dated 28.4.2000. This Criminal Appeal is directed against the conviction of the accused for the offences under Sections 7 and 13(1)(d) r/w 13(2) of the Prevention of Corruption Act, 1988 and sentence imposed thereon to undergo two years rigorous imprisonment and to pay a fine of Rs.3,000/= in default to undergo rigorous imprisonment for four months. 2. The brief facts of the case are as follows: - (a) The accused is a Junior Engineer at Paratharami Electricity Board Office. P.W.2 belongs to the same place having 2 ½ acres of land and a well. He has installed a pump set in his well. Under Ex.P.2, he applied for obtaining Service Connection to his motor. P.W.9, the then Executive Engineer, issued Ex.P.3 Green Form directing him to attend the TNEB's office at Paratharami by 18.11.1991 with relevant documents in connection with his request for service connection. On 18.11.1991 the P.W.2 met the accused and produced Ex.P.4 application, Ex.P.5, Electric Motor Bill issued by P.W.7 and Ex.P.6 VAO's certificate and Ex.P.7 rough sketch of the well and Ex.P.8 Kist receipt standing in his name. The accused received them, put his initial in Ex.P.4 and demanded a bribe of Rs.1,500/= to give service connection in three days. Again on 3.12.1991 when P.W.2 met him, he had reduced the bribe rate to Rs.1,000/= and insisted upon payment of the bribe money. P.W.2 informed this to P.W.3, a Tailor who came to that office in connection with his service connection matter. Thereafter, P.W.2 decided to report this matter to the Vigilance Office at Vellore. Accordingly a complaint was prepared and on 5.12.1999 at 6.00 a.m., he along with P.W.3 went to Vellore. (b) At Vellore at about 9.45 a.m., they met P.W.11 Inspector of Police and lodged Ex.P,9 Complaint with him. When asked P.W.2 informed him that he had brought ten numbers of Rupee 100/= notes. P.W.11 had registered a case and Ex.P.27 is the printed FIR. Ex.P.10 is the signature of P.W.2 in Ex.P.27. P.W.11 sent Ex.P.28 requisition summoning two official witnesses viz., P.W.4 Govindaraj, a Cooperative Sub Registrar, and Ramamurthi, Deputy Commercial Tax Officer who has not been examined. Accordingly, they have attended the office of P.W.11 at 10.00 a.m., P.W.11 shown Ex.P.27 to them and they enquired about the same with P.W.2. Ex.P.10 is the signature of P.W.2 in Ex.P.27. P.W.11 sent Ex.P.28 requisition summoning two official witnesses viz., P.W.4 Govindaraj, a Cooperative Sub Registrar, and Ramamurthi, Deputy Commercial Tax Officer who has not been examined. Accordingly, they have attended the office of P.W.11 at 10.00 a.m., P.W.11 shown Ex.P.27 to them and they enquired about the same with P.W.2. P.W.11 received the said Rs.1000/= (M.O.1 series) and shown to P.w.4 and Ramamurthy. P.W.4 noted the serial numbers in the currency notes in a paper. P.W.11 took fresh water in a glass tumbler and prepared Sodium Carbonate mixture. When P.W.4 dipped his fingers into the mixture there is no change in the water. P.W.11 then applied Phenolphthalein powder to M.O.1 rupee notes. AS requested, P.W.4 counted M.O.1 notes and thereafter dipped his fingers into the mixture. The mixture turned pink colour. M.O.4 is the mixture. The Sodium Carbonate Powder and Phenolphthalein powder were collected in separate covers marked as M.Os 2 and 3. P.W.11 gave P.w.2 the Phenolphthalein applied rupee notes and asked him to keep them in his pocket separately and requested him to give the notes to the accused when he demands and he also requested to take Ramamurthy along with him and introduce him as his uncle to the accused. He also told P.W.2 when they reach the office of the accused he and Ramamurthy will enter the said office and if he demands bribe money give him M.O.1 money and come out of the office room and signal by rubbing his face. P.W.11 prepared Ex.P.12 Mahazar as to the above conducted in his office. (c) P.Ws 2 to 4, 11 and Ramamurthi and Police party left Vellore for Paratharami at 11.30 a.m., They reached there at 2.00 pm., P.Ws 2,3 and Ramamurthi went to the office of the accused and waited for him. At 4.30 pm., P.W.2 and Ramamurthi entered the office room of the accused. P.W.3 was standing out nearby. P.W.2 introduced Ramamurthi to the accused as his uncle. When the accused demanded P.W.2 he gave him M.O.1 rupee notes. The accused had counted the rupee notes and put into his left table drawer. Then, as directed by the accused P.W.6 Foreman Kasi Viswanathan obtained signature of P.W.2 in Ex.P.15 Readiness Register and also made entries in Ex.P.16. P.W.2 and Ramamurthi came out of the office and signalled to P.W.11. The accused had counted the rupee notes and put into his left table drawer. Then, as directed by the accused P.W.6 Foreman Kasi Viswanathan obtained signature of P.W.2 in Ex.P.15 Readiness Register and also made entries in Ex.P.16. P.W.2 and Ramamurthi came out of the office and signalled to P.W.11. Then P.Ws 11, 4 and the Police party rushed into the office room of the accused. P.W.2 shown to P.W.11, the table drawer where the accused kept M.O.1 rupee notes. P.W.11 and the Police party caught hold of both his hands. P.W.11 prepared Sodium Carbonate Mixture and dipped the right hand fingers of the accused. It turned out pink colour. In the second mixture his left hand fingers has been dipped into and it also turned pink. The bottles containing the mixture in which the accused had put his left and right fingers were sealed by P.W.1 and affixed the labels on the bottles and obtained the signatures of P.WS 4, Ramamurthi and signed in it. The accused then opened the table drawer and produced M.O.1 rupee notes and the serial numbers of the rupee notes tallied with the number already noted by P.W.4. The rupee notes were seized under Ex.P.13 mahazar in the presence of P.W.4 and Ramamurthi and also obtained the signature of P.W.6 Foreman Kasi viswanathan. He also seized Ex.P.15 Readiness Register from him. (d) P.W.11 left with P.W.4 Ramamurthy and the accused. After prior intimation to the CJM, Vellore, he searched the house of the accused and nothing incriminating was recovered. P.W.11 produced the seized items on 6.2.1991 under Form No.95 to P.W.10, the then Headclerk of the Court with Ex.P.25 requisition to send M.O.2 to M.O.6 to Chemical Examiner. Thereafter, P.W.12 Inspector Durairaj taken up further investigation. P.W.5, Assistant Director of Forensic Sciences Department, Chennai, received the case properties and examined them. They were found to be sodium Carbonate and the powder in the envelope was found to be Phenolphthalein. When the Phenolphthalein powder mixture in which the accused dipped his fingers was washed with sodium Carbonate mixture, the mixture turned pink colour. sent Ex.P.14 Chemical Report. P.W.12 further examined the witnesses examined by P.W.11. He seized the trip-sheet from the Driver Devaraj, who drove the Jeep. He seized Ex.P.18 to 24 from P.W.9 Nachimuthu an E.B.official. When the Phenolphthalein powder mixture in which the accused dipped his fingers was washed with sodium Carbonate mixture, the mixture turned pink colour. sent Ex.P.14 Chemical Report. P.W.12 further examined the witnesses examined by P.W.11. He seized the trip-sheet from the Driver Devaraj, who drove the Jeep. He seized Ex.P.18 to 24 from P.W.9 Nachimuthu an E.B.official. (e) P.W.1, Superintendent Engineer, ENEB, examined the case records and after having satisfied himself, issued Ex.P.1 sanctioning order for prosecuting the accused for offences under Section 7 and U/s.13(1)(d) read with 13(2) of the Prevention of Corruption Act. After completion of investigation he laid the final report and sent it to his Head Office. (f) Before the learned Special Judge, Vellore, on behalf of the prosecution, P.Ws. 1 to 12 were examined and Exs.P.1 to P.29 and M.Os 1 to 6 were marked. On behalf of the accused, one Jagadeesn, Executive Engineer was examined as witness and Exs.D.1 to D.3 documents were produced. When the accused was questioned under Section 313 Cr.P.C., with regard to the incriminating circumstances appearing in the evidence of the prosecution witnesses, the accused denied the same as false. (g) On a consideration of the oral and documentary evidence, the learned Special Judge, Vellore, came to the conclusion that the offence alleged against the accused 7 and U/s.13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 are proved and convicted the accused for offences under Section 7 to undergo rigorous imprisonment for one year, and under Sections 13(1)(d) read with 13(2) to undergo rigorous imprisonment for two years besides imposing a fine of Rs.1000/= and Rs.2000/= respectively and in default to undergo further imprisonment for three months and four months respectively. Aggrieved over the same, this Criminal Appeal has been preferred. 3. Mr.K.Doraisamy, learned senior counsel appearing for the appellant-accused would contend that a false case has been foisted against the accused at the instance of P.W.3, a Politician and P.W.2 acted as a tool at the hands of P.W.3 and P.W.11, Inspector of Police. Aggrieved over the same, this Criminal Appeal has been preferred. 3. Mr.K.Doraisamy, learned senior counsel appearing for the appellant-accused would contend that a false case has been foisted against the accused at the instance of P.W.3, a Politician and P.W.2 acted as a tool at the hands of P.W.3 and P.W.11, Inspector of Police. In support of the said contention, learned counsel pointed out that Ex.P.9 complaint and Ex.P.27 FIR could not have come into existence on 5.12.1991, the date of occurrence, because the admitted evidence of P.W.2 and also in view of Ex.P.28, a letter of requisition sent by P.W.11, to the Commercial Tax Officer, Vellore, to send an official witness and also because of the fact that before conducting the Phenolphthalein powder and Sodium Carbonate Solution test the hands of the accused were caught hold of by the Inspector of Police so that the Phenolphthalein powder can be passed on to the hands of the accused, and more particularly, in view of the fact that the money was recovered from the table drawer of the accused. 4. Ex.P.9 complaint would show that the same was received by the Inspector of Police, P.W.11 at 9.45 a.m., on 5.12.1991. Thereafter Ex.P.27 FIR was registered. But a perusal of Ex.P.28 would show that the Inspector of Police has sent the requisition letter to Commercial Tax Officer, Vellore on 5.12.1991 requesting him to depute an Officer in the rank of Deputy Commercial Tax Officer to meet him in his office at 9.30 a.m., According to P.W.4, Govindarajan, such letter was received at his office by Post. If that is so, Ex.P.28 letter should have been sent one or two days earlier or at least few hours earlier than 9.30 a.m., If an official from some other department is required to be present at 9.30 a.m., to stand as an official witness in a trap, we are not able to understand as to how the Inspector of Police, P.W.11 would have visualised or anticipated that a complaint would be laid at 9.45 a.m., on the same day. Further, P.W.2 the complainant who gave Ex.P.9 complaint, during cross examination, admitted that after giving Ex.P,9 complaint, the Anti-Corruption Police told him that they have to conduct some enquiry and asked him to come after 5 or 6 days with money and he went after 5 or 6 days with money after giving Ex.P.9 complaint. Further, P.W.2 the complainant who gave Ex.P.9 complaint, during cross examination, admitted that after giving Ex.P,9 complaint, the Anti-Corruption Police told him that they have to conduct some enquiry and asked him to come after 5 or 6 days with money and he went after 5 or 6 days with money after giving Ex.P.9 complaint. If that is so, Ex.P,9 complaint should have come into existence 5 or 6 days earlier than 5.12.1991. Therefore, the alleged complaint said to have been received on 5.12.1991 and registration of FIR, Ex.P.27 are false. It is based on such complaint a false FIR this case has been built up by the prosecution. 5. There is lot of contradiction as to when and where Ex.P.9 complaint was prepared by P.W.2. Admittedly, Ex.P,9 complaint is in the handwriting of P.W.2 Shanmugham. According to him, it was prepared at his village Paratharami and the same was prepared according to the dictation of P.W.3.According to P.W.3, he wrote a complaint. But the Police did not accept his complaint and therefore the complaint prepared by P.W.2 and 3 was kept by themselves and thereafter P.W.2 wrote a complaint in which P.W.3 said to have signed as a witness. But a perusal of Ex.P.9 complaint would show that in the last line it is stated as follows:- Therefore, the above line would show that Ex.P.9 was not the original complaint prepared at the village by P.Ws 2 and 3. But a separate complaint has been prepared only at the office of P.W.11, Inspector of Police. Therefore, the very complaint Ex.P.9, based on which Ex.P.27 FIR was prepared after registering a case is highly doubtful. 6. As regards the demand of illegal gratification by the accused, there is lot of controversies in this case. The evidence of P.W.2 and P.W.3 are contradictory to each other. According to P.W.2, he met the accused on 3.12.1991 at 12.00 noon when P.W.3 was also present. But, according to P.W.3, he went to the office of the accused at 2.00 p.m., on 3.12.1991. It is pertinent to note that as per Ex.D.2, T.A. Bill of the accused, on 3.12.1991, between 2.30 pm., and 6.00 pm., the accused was attending duty at Pakkam and Gudiyatham to which places he travelled by bus. From Paratharami to Pakkam it is 15 kilometers and from there to Gudiyatham it is another 15 kilometers. It is pertinent to note that as per Ex.D.2, T.A. Bill of the accused, on 3.12.1991, between 2.30 pm., and 6.00 pm., the accused was attending duty at Pakkam and Gudiyatham to which places he travelled by bus. From Paratharami to Pakkam it is 15 kilometers and from there to Gudiyatham it is another 15 kilometers. Therefore, the accused must have left the office prior to 2.00 pm., Therefore the alleged demand on 3.12.1991 for a sum of Rs.1000/= is highly improbable. Once the demand is not proved, then the acceptance of money as illegal gratification cannot be presumed. 7. As regards the payment of money by P.W.2 to the accused, the versions of P.W.2 and P.W.3 are contradictory to each other. According to P.W.2, in the chief examination, he has stated that he gave the money to the accused who counted the ten hundred rupee notes and thereafter he placed the money in his table drawer. But according to P.W.3, when P.W.2 offered the money, the accused did not receive it but asked him to place it in the table drawer. This assumes importance because if the accused has not received the money and the money was dropped in the table drawer then one has to question as to why both the hands of the accused when dipped in Sodium Carbonate Solution, it turned pink in colour. The answer is in Exs.P.12 and P.13 mahazars itself. In Ex.P.12 mahazar it is stated that after demonstration of Phenolphthalein powder and Sodium Carbonate Solution test to the prosecution witnesses who are P.Ws 2, 3 and 4, they have washed their hands. But, there is no allegation or averment in Ex.P.12, Mahazar that P.W.11, Inspector of Police washed his hands. In Ex.P.13, it is specifically stated that the Police party including P.W.11 caught hold of both the hands near the wrist of the accused and only thereafter the Phenolphthalein powder and Sodium Carbonate Solution test was conducted. In this connection we have to find out what is the necessity for P.W.11 and the Police party to catch hold of both the hands of the accused. If the Police wanted to arrest the accused, it is enough if they simply inform the arrest or symbolically touch the body of the accused. Section 46 of the Code of Criminal Procedure deals as to how arrest should be made. It reads as follows:- "46. If the Police wanted to arrest the accused, it is enough if they simply inform the arrest or symbolically touch the body of the accused. Section 46 of the Code of Criminal Procedure deals as to how arrest should be made. It reads as follows:- "46. ARREST HOW MADE:-- (1) In making an arrest the Police Officer or other person making the same shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action. (2) If such person forcibly resists the endeavour to arrest him, or attempts to evade the arrest, such Police officer or other person may use all means necessary to effect the arrest. (3) Nothing in this section gives a right to cause the death of a person who is not accused of an offence punishable with death or with imprisonment for life." 8. Section 46 Cr.P.C., does not say that the Police who arrest the accused must catch hold of the hands of the accused. It is enough if they simply touch the body and inform the arrest. If only when the accused resists, some force has to be used. Therefore, catch holding of both the hands of the accused by P.W.11 is totally unwarranted, that too before conducting the Phenolphthalein powder and Sodium Carbonate Solution test. The only purpose for catching of both the hands of the accused by P.W.11 who has not washed his hands earlier is only to pass on the Phenolphthalein Powder from his hands to the hands of the accused and no other explanation could be offered as to why the hands of the accused were caught hold of by P.W.11 who laid the trap. 9. The question of arresting the accused does not arise before conducting the Sodium Carbonate Solution test. Only after proof by conducting the test and after search, the accused is to be arrested. Therefore the Police cannot take a stand that he was arrested and in pursuance of such arrest his hands were caught hold by P.W.11. The arrest could be made only after coming to the reasonable conclusion that the accused has committed the offence by receiving the money. Therefore the Police cannot take a stand that he was arrested and in pursuance of such arrest his hands were caught hold by P.W.11. The arrest could be made only after coming to the reasonable conclusion that the accused has committed the offence by receiving the money. Therefore when money is recovered from the table drawer, whereas according to P.W.3, the money was dropped by P.W.2 in the table drawer and not received by the accused, catching hold of both the hands of the accused by the Police, who laid the trap assumes importance. Neither in Ex.P.13, Mahazar nor in the evidence of any of the prosecution witnesses including P.W.11, Inspector of Police, who laid the trap, it is stated that the accused was arrested. Therefore this act of the Inspector of Police in catching hold of both the hands of the accused could be presumed only for the purpose of passing of Phenolphthalein powder from his hands to the hands of the accused so that the fingers of the accused could prove positive when Sodium Carbonate Solution test is applied. This only shows the determination of the Police to some how or other trap the accused and implicate him in the case. Even M.Os 5 and 6 namely, the Sodium Carbonate Solutions were colourless when marked before the trial court. When P.W.5, the Deputy Director of Forensic Laboratory, Chennai was examined he deposed that the solution may change colourless after sometime depending upon the water used to prepare the solution. P.W.5 has stated about the possibility of the pink colour turning as colourless but it requires scientific proof, because admittedly P.W.5 has not estimated how much Phenolphthalein powder was found in M.Os. 5 and 6. 10. Another important circumstance which is in favour of the accused is that on 5.12.1991 when P.W.2, 3,4 and 11 and others went to trap the accused, the accused was not available in his office. According to P.Ws.2,3 and 4 they were standing at the office from 2.00 pm., to 4.30 pm., till the arrival of the accused. P.W.4, is the Sub-Registrar of the Cooperative Society. He is in the cadre of Gazetted Officer. According to P.Ws 2,3 and 4 they were waiting for 2½ hours in the room of the accused without sitting anywhere. According to P.Ws.2,3 and 4 they were standing at the office from 2.00 pm., to 4.30 pm., till the arrival of the accused. P.W.4, is the Sub-Registrar of the Cooperative Society. He is in the cadre of Gazetted Officer. According to P.Ws 2,3 and 4 they were waiting for 2½ hours in the room of the accused without sitting anywhere. Normally when the accused is not available in his seat, they could have come out and sat somewhere where there is a bench or Verandha available. It is the evidence of P.Ws 2,3 and 4 that they did not contact P.W.11 who was hiding somewhere away to inform him about the absence of the accused. It is highly improbable that P.Ws 2,3 and 4 were standing in the room of the accused for 2½ hours till the arrival of the accused. The unnatural human conduct on the part of P.Ws 2,3 and 4 would clearly go to show that they had the determined mind to somehow or the other to implicate the accused in this case. 11. As already held, the alleged demand on 3.12.1991 is improbable because of the contradiction in the evidence of P.Ws.2 and 3 particularly in view of Ex.D.2 T.A.Bill, according to which, the accused was away from headquarters from 2.30 pm., to 5.30 pm., on that day. The FIR could not have come into existence at 9.45 a.m., on 5.12.1991 because of Ex.P.28, a letter sent to the Commercial Tax Officer, Vellore, requesting him to send an official witness at 9.30 a.m., and also particularly the evidence of P.W.2 that after lodging the complaint the Vigilance Police asked him to come after 5 or 6 days later. Therefore, Ex.P.9 complaint based on which Ex.P.27, FIR was registered are false. The money was also not recovered from the person of the accused, but from the table drawer. P.W.2 would state that he gave the money to the accused, he counted the same and then placed it in the drawer of the table, whereas P.W.3 would state that the accused has not received the money, but directed P.W.2 to place the money in his table drawer. It was from the table drawer the money was recovered by the Police. It was from the table drawer the money was recovered by the Police. To make the accused to prove positive of the Sodium Carbonate Solution test as if he received the money from P.W.2, P.W.11 the Inspector of Police who has not earlier washed his hands as per Ex.P.12 Mahazar, caught hold of both the hands of the accused as seen from Ex.P.13 mahazar, which will only go to show that P.W.11 determined to soil the hands of the accused with Phenolphthalein powder which could have been available in the hands of P.W.11 so that the fingers of the accused would prove positive when tested for Phenolphthalein powder along with Sodium Carbonate Solution. This is a classic case as to how the Police can foist a case at the instance of a political person like P.W.3, who was then belonging to the ruling party of the State. 12. In the above circumstances, this Criminal Appeal is allowed. The conviction and sentence of the accused are set aside. Bail bond executed by the accused shall stand cancelled.