GOPALA KRISHNA TAMADA, J. ( 1 ) THIS appeal is directed against the judgment dated 24. 01. 2000 in C. C. No. 10 of 1996 passed by the learned principal Special Judge for SPE and ACB Cases, City Civil court, Hyderabad, whereby the appellant-accused was convicted of the offences under Sections 7 and 13 (1) (d) read with Section 13 (2) of Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for One year under each count and to pay a fine of Rs. 1000/-, in default to suffer simple imprisonment for two months under each count. The sentences imposed under both the counts were directed to be run concurrently. ( 2 ) THE case of the prosecution, according to the evidence let in during the course of trial, is that the appellant-accused was working as Sub Reg strar in the office of the Sub Registrar of Assurance, Sathupally, Khammam District in the year 1995. One Borra Venkateswara Rao (hereinafter called as complainant) was a resident of Sathupally and he was eking out his livelihood by vending eatables on a pushcart. He owned an extent of Ac. 6. 00 of land in Sy. No. 156 situate in patwarigudem village and he intended to execute a Will deed bequeathing the same property in favour of his second wife as his first wife died and he had no children. 10 days prior to 20. 03. 1995 the complainant approached the appellant for the purpose ot registering the Will deed and it was alleged that the appellant demanded an amount of Rs. 1000/- as gratification and on bargain the demand has come down to rs. 500/ -. Be that as it may, as the complainant was not willing to pay the bribe amount to the appellant, he approached p. W. 8-Deputy Superintendent of Police, Anti Corruption bureau, Warangal on 20. 3. 1995 and lodged a complaint. P. W. 8 recorded his statement, which was marked as Ex. Plo. P. W. 8 registered a case in Cr. No. 1/acb-WKH/95 against the appellant-accused under Sections 7 and 11 of Prevention of corruption Act, issued Ex. P11 F. I. R and took up investigation. Thereafter, P. W. 8 requested the complainant to come to neeladri Guest house at Penuballi on 21. 03. 1995 with necessary amount. Plo. P. W. 8 registered a case in Cr. No. 1/acb-WKH/95 against the appellant-accused under Sections 7 and 11 of Prevention of corruption Act, issued Ex. P11 F. I. R and took up investigation. Thereafter, P. W. 8 requested the complainant to come to neeladri Guest house at Penuballi on 21. 03. 1995 with necessary amount. Accordingly the complainant along with his friend-P. W. 1 went to Neeladri Guest house at Penuballi on a motorcycle at about 1 P. M. and P. W. 8 introduced the complainant to P. W. 7-mediator and another and Ex. P5-pre-trap proceedings were conducted in the presence of P. W. 7 and another. Thereafter, the complainant was instructed to give the money only when the appellant-accused demanded. The trap party consisting of P. W. 8, two mediators, two inspectors and two constables left the Guest house in a jeep while the complainant and P. W. 1 went on the motorcycle. The raid party stopped the jeep at a little distance from the office of the appellant at Sattupally. The complainant and P. W. 1 went to a hut situate within the premises of the appellants office, where the complainant collected the Will document prepared by P. W. 5-Document writer and stamps necessary for registration from P. W. 4-Stamp vendor. It is further stated that before handing over the Will document to the complainant attestation was obtained from p. Ws. 1 and 2. Later the complainant, P. Ws. 1 and 2 went into the office of the appellant where they found the appellant was busy writing something. After some time, the complainant gave the Will deed and after examining the Will deed the appellant obtained the signatures of P. Ws. 1 and 2 and also that of P. W. 3 who was present there on the document. When the complainant enquired about the registration fee of the document, the appellant-accused said it was Rs. 81/- and the complainant took out Rs. 81/- from his inner pocket of banian and gave it to the appellant, who placed the amount in the open table drawer. Thereafter, the appellant prepared a receipt Ex. P6 and handed it over to the complainant. Subsequently it was alleged that the appellant demanded the bribe amount of Rs. 81/- and the complainant took out Rs. 81/- from his inner pocket of banian and gave it to the appellant, who placed the amount in the open table drawer. Thereafter, the appellant prepared a receipt Ex. P6 and handed it over to the complainant. Subsequently it was alleged that the appellant demanded the bribe amount of Rs. 500/- and that the complainant took out the tqinted amount from his shirt pocket and gave it to the appellant-accused, who kept the amount in the table drawer. Then P. W. 1 came out of the office and gave pre-arranged signal, pursuant to which the trap party entered into the office and P. W. 8-Deputy Superintendent of Police, A. C. B asked the appellant-accused whether he had received the bribe amount from the complainant for which the appellant-accused denieci. Then phenolphthalein test was performed on both hand fingers of the appellant-accused and the test on right hand fingers proved positive. Even when the mediators asked the appellant-accused, he denied having taken any bribe amount. On the instructions of P. W. 8, mediators searched the right side drawer of the office table of the appellant-cccused and found three batches of currency notes in it, out of which one bundle containing five hundred rupees and hundred rupee denominations were tallied with the numbers noted by the mediators. The other cash of rs. 9,000/- was given account according to the records. An amount of Rs. 9. 50 paise found in the drawer was the amount left by the customers due to non-availability of change. Again on being questioned, the appellant-accused reiterated the denial and stated that he did not know who kept the amount in the table drawer. Post trap panchanama Ex. P9 was prepared and the appellant-accused was arrested and released on bail. After completion of investigation, the inspector of police filed charge sheet, however, during the pendency of trial he died. ( 3 ) THE prosecution in order to prove its case against the accused examined P. W. 1 to P. W. 9 and got marked Exs. P1 to p13 and M. Os. 1 to 8. On behalf of the accused, D. Ws. 1 and 2 were examined and Exs. D1 to D8 were marked. ( 3 ) THE prosecution in order to prove its case against the accused examined P. W. 1 to P. W. 9 and got marked Exs. P1 to p13 and M. Os. 1 to 8. On behalf of the accused, D. Ws. 1 and 2 were examined and Exs. D1 to D8 were marked. The trial Court on appraisal of entire evidence, both oral and documentary, held that the prosecution has proved the offences under sections 7 and 13 (1) (d) read with Section 13 (2) of the prevention of Corruption Act, 1988 against the accused and accordingly convicted and sentenced him as stated supra. Aggrieved by the said conviction and sentence, the appellant-accused preferred the present appeal. ( 4 ) LEARNED Senior Counsel for the appellant-accused, Sri t. Balreddy, contended that the prosecution has not chosen to examine the complainant for obvious reasons and this Court has to draw an adverse inference in not examining him as one of the witnesses. According to him, in the absence of any evidence by the complainant, the complaint is wholly inadmissible in evidence and it cannot be accepted in evidence. According to him, P. W. 1 is only a shadow witness and his evidence is full of contradictions and therefore it cannot be accepted. He contended that the complainant is a petty vendor who did not possess any property and as such he had no competency to execute a Will deed bequeathing his property in favour of his second wife and even if it is true that he had some property there was no necessity for him to execute a Will deed as the second wife is only the legal heir of the complainant. According to the learned Senior Counsel, the entire trap is at the instance of one Chepu Chennaiah and his son-in-law N. Nageswara Rao, who were inimical towards the appellant-accused as the appellant-accused is responsible for getting their document writers licence suspended/cancelled. ( 5 ) ON the other hand, the learned Special Public prosecutor for A. C. B, Mr. V. Ravikiran Rao, appearing for the state contended that no doubt the complainant was not examined but the reasons are explained for his non-examination as he died. According to him, the Court below has taken notice of the said event and in the last paragraph of the judgment, it is clearly observed that the complainant is dead. V. Ravikiran Rao, appearing for the state contended that no doubt the complainant was not examined but the reasons are explained for his non-examination as he died. According to him, the Court below has taken notice of the said event and in the last paragraph of the judgment, it is clearly observed that the complainant is dead. In view of the said death, according to the learned special Public Prosecutor, no adverse inference need be drawn in this case as if the prosecution intentionally failed to examine the complainant. According to him, even in the absence of the evidence of the complainant, the evidence let in during the course of trial will clearly establish that the appellant-accused has accepted the illegal gratification as defined under Section 7 of the Prevention of Corruption Act and the said receipt of illegal gratification is misconduct within the meaning of Section 13 (1) (d) of the Act and as such the appellant-accused is liable for the said offence. According to him, phenolphthalein test which proved to be positive is an indication that the appellant had received the bribe amount and that itself is sufficient to come to the conclusion that the appellant is guilty as alleged by the prosecution. The learned special Public Prosecutor tried to place on record the death certificate which he had received from the Anti Corruption bureau establishing the fact that the complainant died on 10. 06. 1997. No doubt the complainant Borra Venkateswara Rao was not examined and it is also clear that by the time the trial was conducted he died. But to this effect nothing is borne on record except the death certificate produced by the learned special Public Prosecutor during the course of arguments of this appeal. Though the said document cannot be taken into consideration it is clear from the judgment of the Court below that he died pending trial and the tainted amount was also directed to be returned to the legal heirs of the deceased complainant Borra Venkateswara Rao. From this it can definitely be inferred that the complainant was dead and thus he was not available by the time the trial has taken place. From this it can definitely be inferred that the complainant was dead and thus he was not available by the time the trial has taken place. If really there is no evidence establishing the fact that the complainant is not dead probably this Court would have drawn an adverse inference as it is for the prosecution in the normal circumstances to examine the complainant at the first instance. In view of non-examination of the complainant. the complaint Ex. P10 was in my considered view cannot be accepted as substantive piece of evidence unless there is some corroboration. In the instant case, none of the prosecution witnesses accompanied the complainant at the time of institution of the complaint and even according to p. W. 8-D. S. P. ,a. C. B the complainant came alone and gave ex. P10 complaint. Hence, this Court is of the view that Ex. P10 cannot be accepted in evidence. Simply because this Court is not accepting Ex. P10 complaint it cannot be said that the entire case of the prosecution is to be thrown out. Even if the complaint is not accepted if there is evidence establishing the receipt of illegal gratification or misconduct as defined under section 7 and 13 (1) (d) of the Act definitely this Court can hold that the appellant-accused is guilty of the said offences. In the light of the observations made above, this Court has gone into the evidence of the prosecution witnesses. P. W. 1 is a shadow witness. He has stated in his chief-examination that the appellant-accused demanded the complainant to pay an amount of Rs. 500/- towards bribe for registering the Will deed in favour of the complainants wife and the said information he got from the complainant. As the said evidence is in the way of hearsay this Court may not accept it totally. According to P. W. 1, he along with the complainant reached the office of the Sub Registrar at sattupally at about 3. 30 P. M. and P. W. 8-D. S. P, staff and mediators accompanied them in a jeep and they stopped the jeep at a distance of 100 yards from the office of the Sub registrar and took vantage positions. 30 P. M. and P. W. 8-D. S. P, staff and mediators accompanied them in a jeep and they stopped the jeep at a distance of 100 yards from the office of the Sub registrar and took vantage positions. He further stated that the complainant and himself went to one Chalapathi Rao-P. w. 5, a document writer, who was sitting in the office of the Sub registrar and that the complainant signed on a document, which was already prepared by P. W. 5. He further stated that he and P. W. 2-Bejawada Rambabu signed on that document as witnesses and thereafter the said Rambabu, the complainant and he entered into the room of the Sub registrar with that document. From a perusal of Ex. P4-Will deed, this Court is of the view that the said evidence is not correct. The said Will deed was signed by two witnesses i. e. , bejawada Rambabu (P. W. 2) and Kasini Srinivasa Rao (P. W. 3) and it is mentioned that the said Will-deed was prepared by p. W. 5-M. V. Chalapathi Rao and was typed by one T. Narasimha rao. At the bottom of the first page of Ex. P4, it is signed by two persons by name Bejawada Rambabu-P. W. 2 and vanaparthi Edukondalu-P. W. 1. This is only to prove the fact that the said document and an amount of Rs. 81/- was given by the complainant-Borra Venkateswara Rao and the said attestation by Rambabu-P. W. 2 and P. W. 1 was counter-signed by the appellant-accused (Sub Registrar ). In fact, the said evidence of P. W. 1 was negatived by P. W. 5-Document Writer his evidence is to the following effect:"chepu Chinnaiah was a co-document writer with me during January, February and march, 1995. It is true that the A. O. conducted an enquiry concerning the malpractices of Chipu chennaiah and his son-in-law Nagula Nageswara rao and that on the report of the A. O. their licences are suspended during March, 1995 and subsequently they were not renewed till today. It is true that on account of it they bore serious grudge against the A. O. and they are inimical towards a. O. B. Venkateswara Rao approached me between 10 and 11 A. M. on that day and informed me that I will have to draft a will deed. It is true that on account of it they bore serious grudge against the A. O. and they are inimical towards a. O. B. Venkateswara Rao approached me between 10 and 11 A. M. on that day and informed me that I will have to draft a will deed. Subsequently K. V. Mallikarjuna Rao and b. Venkateswara Rao came together and handed over the stamp papers at about 12 Noon on that day. Again K. V. Mallikarjuna Rao and b. Venkateswara Rao came together and took ex. P4 which was already drafted by me at about 3. 30 P. M. on that day. They brought two witnesses by name Srinivasa Rao and Rambabu and in my presence they obtained signatures of those two witnesses on Ex. P4. Witnesses and B. Venkateswara rao went away together. Mallikarjuna Rao did not come again or witnessed the signing of the deed. Venkateswara Rao paid fees at 3. 30 P. M. when he came and took the drafted deed Ex. P4". ( 6 ) IN the light of the above, this Court is unable to accept the testimony of P. W. 1 as truthful. In fact, as stated above, the defence has come up with the theory that because of the rao a false case has been foisted, which, in fact, is proved by the evidence of P. w. 1. In the cross-examination at one stage p. W. 1 has stated that " Chepu Chenniah, document writer, who came to the room of the Public Prosecutor did not bring us and did not accompany me". From this no doubt though he is denying the said suggestion it is clear that Chepu chinnaiah, document writer, has visited the room of the P. P. If there is absolutely nothing for the said Chepu Chinnaiah where was the necessity for him to go to the room of the P. P. along with P. W. 1 ( 7 ) ANOTHER circumstance which is against the prosecution is not recording the Section 164 Cr. P. C. statement of the so-called complainant. Normally in a case of this nature, the prosecution will try to get the statement of the complainant recorded by a Magistrate. The very purpose is not to retract from the said statement at a later stage. P. C. statement of the so-called complainant. Normally in a case of this nature, the prosecution will try to get the statement of the complainant recorded by a Magistrate. The very purpose is not to retract from the said statement at a later stage. In the instant case, the prosecution has got the statement of P. W. I recorded but not the statement of the complainant under Section 164 cr. P. C. The alleged trap was dated 21. 03. 1995 and the complainant, even if it is accepted, died on 10. 06. 1997. So it cannot be said that the complainant was not available for the purpose of recording the statement under Section 164 Cr. P. C. Of course, not recording of the statement under section 164 cr. P. C. may not by itself be relevant, but this Court feels that, it may also be taken into consideration because of various circumstances which are to be discussed hereunder. ( 8 ) THE defence has come up with the theory that the document writers licence of Chepu Chennaiah and his son-in-law nageswar Rao were suspended/cancelled, on account of which they have an axe to grind against the appellant-accused as he was instrumental in getting the said licences suspended/cancelled. In this context, the evidence of D. Ws. 1 and 2 and P. Ws. 5 and 6 is relevant. It has come in the evidence that Chepu Chinnaiah, his son-in-law Nageswar rao and Mallikarjuna Rao bore grudge against the appellant-accused as he was instrumental in getting their document writers Iicence suspended/cancelled. ( 9 ) THE other circumstances which also have to be taken into consideration is as to whether really there is any necessity for the complaincnt to execute a Will-deed in favour of his wife as alleged by the prosecution. As the complainant was not examined, this Court has to see whether really there is any necessity for him to execute a Will deed in favour of his second wife. When it is viewed from that angle, this Court is of the view that the complainant is a petty vendor who has no children and the second wife alone is in existence. When that is the situation when it questioned about the necessity to execute a Will deed, it is clear that the answer would be no. When it is viewed from that angle, this Court is of the view that the complainant is a petty vendor who has no children and the second wife alone is in existence. When that is the situation when it questioned about the necessity to execute a Will deed, it is clear that the answer would be no. May be the prosecution has come up with false theory at the instance of the said Chepu Chinnaiah and others. In fact, one of the prosecution witnesses i. e. , P. W. 6 has stated that the appellant-accused was strict and honest and there was no occasion to collect any amount other than the registration amount from the parties. All this clearly leads to the inference that a false case has been foisted against the appellant-accused at the instance of Chepu Chinnaiah and others. No doubt phenolphthalein test conducted by P. W. 8-D. S. P. ,a. C. B proved positive and definitely this is a circumstance in favour of the prosecution. But simply by that no Court can come to the conclusion that the appellant-accused is guilty of misconduct. The prosecution must establish the other circumstances also as discussed above. In the instant case, in fact, it is not in dispute that the complainant was carrying two sets of amounts, one in the banian pocket and other in the shirt pocket. The amount of rs. 81/- he was carrying in the banian pocket, whereas the tainted amount he was carrying in the shirt pocket. So the possibility of the complainant touching the tainted amount at the time of taking out the amount of Rs. 81/- for the purpose of registration cannot be ruled out. P. W. 8-D. S. P. AC. B in the cross-examination stated that he has not conducted any test to eliminate the traces of phenolphthalein powder on the registration fees Rs. 81/- tendered to the appellant-accused by the complainant, which was kept in his banian pocket. 81/- for the purpose of registration cannot be ruled out. P. W. 8-D. S. P. AC. B in the cross-examination stated that he has not conducted any test to eliminate the traces of phenolphthalein powder on the registration fees Rs. 81/- tendered to the appellant-accused by the complainant, which was kept in his banian pocket. ( 10 ) FOR the aforementioned reasons, this Court is of the view that the Court below erred in coming to the conclusion that the appellant-accused is guilty of the offences under sections 7 and 13 (1), (d) read with Section 13 (2) of Prevention of corruption Act and the conviction and sentence imposed on the appellant-accused by the Court below for the said offences are hereby set aside and the appellant-accused is acquitted of the said charges and he shall be set at liberty forthwith if He is not required in any other case. The fine amount, if any, paid shall be refunded to the appellant-accused. The Criminal Appeal is accordingly allowed.