JUDGMENT : S.L. KOCHAR, J. 1. The appellant named above challenges his conviction under section 161 of the Indian Penal Code and section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and sentence of R.I. for two years and fine of Rs. 5,000/- in default of payment of fine to suffer additional R.I. for three months passed by the learned 1st Addl. Sessions Judge and Special Judge, Ratlam in Special Case No. 4/1992 vide judgment dated 19-4-1995. 2. According to the prosecution case, in the month of May, 1988 complainant Bhanwarlal had purchased some land in the names of his two minor sons. He contacted the appellant Patwari for getting the names of two sons mutated on the said land for which the appellant demanded bribe of Rs. 1,500/-. At that time, the complainant paid him Rs. 250/-. Thereafter, after three days he again paid Rs. 200/- to the appellant Patwari who obtained the signature of Bhanwarlal on some papers. After some days, the complainant Bhanwarlal met with Patwari and Patwari informed him about completion of the mutation proceeding, but said that he would give the land record books (Rin Pustika) and the sale deed only after receipt of the balance amount of Rs. 1,050/-. It was also stated that the appellant also obtained the signature regarding receipt of the said documents. The complainant Banwarlal agreed to pay Rs. 300/- to the appellant Omprakash on 25-5-1988, but he was not willing to pay this amount, therefore, he made a written complaint in the office of Lokayukta, Ujjain Ex. P/3 on 24-5-1988. The then D.S.P. Shri Malhotra directed Inspector T.R. Suryavanshi to arrange a trap. Complainant Bhanwarlal was given six notes each of Rs. 50/- denomination duly applied with phenolphthalein. A memorandum to this effect was prepared wherein the numbers of the notes were written. The trap party proceeded for Taal, a Tehsil place to trap the appellant Patwari, but they came to know that the appellant was not present there and was available in village Semaliya, therefore, they reached at village Semaliya where the appellant was present with acquitted co-accused Fakir Mohammad. The appellant did not accept the amount and asked the complainant to give the bribe money to co-accused Fakir Mohammad, whereupon the complainant gave six notes each of fifty rupees denomination to Fakir Mohammad who kept them in his pocket. The appellant did not accept the amount and asked the complainant to give the bribe money to co-accused Fakir Mohammad, whereupon the complainant gave six notes each of fifty rupees denomination to Fakir Mohammad who kept them in his pocket. The other members of the trap party, after receiving signal of handing over of money, reached on the spot and asked for the amount paid, whereupon the acquitted co-accused Fakir Mohammad told them that he had received Rs. 300/- at the instance of the appellant Omprakash. The currency notes were seized from the possession of co-accused Fakir Mohammad. The trap party completed all the proceedings of seizure, washing of hands in the solution of sodium bicarbonate which turned into pink colour and securing the same in a separate bottle. After receiving the illegal gratification, the appellant gave the Rin Pustika to the complainant, which was seized from the house of the appellant along with two registered sale-deeds, a mutation register. And the register of Rin Pustika Distribution Register. After completion of investigation, the appellant and co-accused Fakir Mohammad were charge-sheeted for having committed the offence as aforesaid. 3. The appellant denied the charges and pleaded false implication whereas the acquitted co-accused Fakir Mohammad admitted in his accused statement recorded under section 313 of the Code of Criminal Procedure about receiving the money on behalf of the appellant. He also admitted recovery of Rs. 300/- from his possession and proceedings of seizure of the cash amount well as pink colour solution of sodium bicarbonate. On conclusion of trial and hearing both the parties, the learned trial Court while acquitting the co-accused Fakir Mohammad convicted and sentenced the appellant as indicated herein-above. 4. We have heard Shri Jaisingh, learned Senior Advocate assisted by Shri Nitin Vyas Advocate for the appellant and Shri Devendra Singh, learned Panel Lawyer appearing for the State and perused the entire record carefully. 5. It has been submitted on behalf of the appellant that the acquitted co-accused Fakir Mohammad has no-where stated in his statement under section 313 of the Criminal Procedure Code. That “he received the money on behalf of the appellant and as per instruction given by the appellant” and the learned trial Court has not properly and correctly interpreted and considered the answer given by co-accused Fakir Mohammad to question No. 12. That “he received the money on behalf of the appellant and as per instruction given by the appellant” and the learned trial Court has not properly and correctly interpreted and considered the answer given by co-accused Fakir Mohammad to question No. 12. It has also been submitted that the co-accused has not accepted that money as bribe and there was no settlement between the appellant and the complainant for demanding of bribe regarding mutation proceedings and that the independent Panch-witness Fakirchand (PW-4) has not supported the prosecution case and the statement of another witness PW-5 Ravikant Tripathi is completely a variance with the statement of the complainant. Learned counsel for the appellant has taken this Court through the statement of this witness as well as Ravikant Tripathi (PW-5) and submitted that the appellant was not authorized for passing mutation order, therefore, the question of payment of money for mutation to him or demand of money by him from the complainant, would not arise. On the other hand, learned Panel Lawyer appearing for the respondent has supported the judgment and finding arrived at by the learned trial Court. 6. Having heard learned counsel for the parties and after perusing the entire record, this Court is of the opinion that the prosecution has utterly failed to prove its case beyond all reasonable doubt against the appellant. For passing of money which was said to have been paid as illegal gratification except the statement of complainant PW-1 Bhanwarlal, there is no other direct evidence. According to the prosecution case, at that time, one Head Constable was present, but he has not been examined by the prosecution. His name has also not been disclosed by the witnesses. PW-1 Bhanwarlal has stated that he reached to Shri Malhotra at Ujjain on 24th May, 1988 at 11.00 AM and made a complaint that Patwari was demanding Rs. 1,500/- as bribe for mutation. He was asked to give the complaint in writing, therefore, he submitted the written complaint Ex. P/3. At 4.00 PM, Shri Malhotra, one Head Constable and other 6/7 persons proceeded in a jeep from Ujjain. They all were 8/9 in number. They reached Jaora at the time of Sun-set from Ujjain via Taal. 1,500/- as bribe for mutation. He was asked to give the complaint in writing, therefore, he submitted the written complaint Ex. P/3. At 4.00 PM, Shri Malhotra, one Head Constable and other 6/7 persons proceeded in a jeep from Ujjain. They all were 8/9 in number. They reached Jaora at the time of Sun-set from Ujjain via Taal. In Jaora they stayed in Government Dak-Bungalow where he was interrogated by one officer regarding dispute with the Patwari and he narrated the entire story of demand of money to the said officer. On next morning he gave Rs. 300/- (six currency notes each of fifty rupees denomination) to the police officer. They noted the number and applied some white powder on the notes. Thereafter, he put the same in right side pocket of his shirt. He was instructed not to touch the said notes prior to handing over them to the Patwari (appellant). He was also instructed for giving signal after payment of money by putting his hand on the head. After all these proceedings and instructions, they proceeded from Jaora to Taal. The jeep was stationed near Taal barrier and he was directed to go to the house of the appellant for giving money, but when he reached at the house of the appellant, appellant was not available in the house and his wife asked him for payment of money to her if had the same, upon which, he refused to have money. The complainant came to know from the wife of the appellant that the appellant had gone to Negrun. The complainant gave this information to the police officer. Thereafter, they proceeded for Negrun and when reached in village Semaliya, they came to know that the appellant was present in village Semaliya for the purposes of demarcation of the land of some person. On getting knowledge of this fact, this witness (complainant Bhanwarlal) along with Panch-witness Fakirchand (PW-4) reached at the house of this witness. At that time, the jeep of the police officials was standing outside the village. 7. The further say of this witness is that when he was sitting at his house, the appellant and acquitted co-accused Fakir Mohammad were passing through his house and the appellant asked about his promise of paying money on 25-5-1988. At that time, the jeep of the police officials was standing outside the village. 7. The further say of this witness is that when he was sitting at his house, the appellant and acquitted co-accused Fakir Mohammad were passing through his house and the appellant asked about his promise of paying money on 25-5-1988. When he gave money to the appellant, the appellant did not take it and told him to give it to the co-accused Fakir Mohammad. Fakir Mohammad had also refused to take the money, but he gave the money to Fakir Mohammad as directed by the appellant. Fakir Mohammad was asked by the appellant second time to take the amount whereupon, Fakir Mohammad accepted the amount and the appellant gave him the Rin Pustika. After payment of money to Fakir Mohammad, he put his hand on head upon which, all the members of the trap party reached over there. He informed the police officer about payment of money to Fakir Mohammad and on demand from Fakir Mohammad he gave the money to the police officer. This witness has also stated that on interrogation Fakir Mohammad stated that he accepted the money for appellant. 8. This statement of complainant is at variance with the statement of solitary Panch witness PW-5 Ravikant Tripathi on material particulars. According to Shri Tripathi who was the Assistant Director of Agriculture Department, Jaora on 25-5-1988. He received order from Shri Malhotra of Vigilance Department to witness the trap. He reached at the office of Shri Malhotra and in his presence, the complainant Bhanwarlal gave one written complaint against Patwari Omprakash regarding demand of bribe for mutation of names, whereas according to the complainant, he made the complaint on 24-5-1988 and not on 25-5-1988 and the complaint was made at Ujjain at 11.00 AM while according to Ravikant Tripathi (PW-5), the complaint was made at Jaora. The further say of Ravikant Tripathi (PW-5) is that he had a talk with Bhanwarlal about demand and payment of bribe amount, but, Bhanwarlal has not stated anything about any talk with Ravikant Tripathi. PW-1 complainant Bhanwarlal in Para 34 has specifically stated that he gave currency notes to the police officer in the night at Jaora the powder was applied on the notes in the same night. He did not sleep for the whole night. PW-1 complainant Bhanwarlal in Para 34 has specifically stated that he gave currency notes to the police officer in the night at Jaora the powder was applied on the notes in the same night. He did not sleep for the whole night. This version of Bhanwarlal in Para 34 is contradictory to his statement in his examination-in-chief Para 4 as well as with the statement of PW-5 Ravikant Tripathi. PW-4 Ravikant Tripathi has specifically stated that he had not seen passing of money by the complainant to the acquitted co-accused Fakir Mohammad. There is only statement of complainant about payment of money to Fakir Mohammad. There is no corroboration to this statement by any material particulars. 9. Learned trial Court has used the statement of acquitted co-accused Fakir Mohammad recorded under section 313 of the Criminal Procedure Code wherein he has specifically denied about demand of bribe amount for mutation proceeding by the appellant. In answer to question No. 12, he stated only this much that: xxx xxx xxx On consideration, this statement of co-accused Fakir Mohammad is not sufficient to indicate that the appellant was present at the time of giving of three hundred rupees notes to Fakir Mohammad and the appellant asked Fakir Mohammad to receive money as gratification for mutation proceeding from the complainant. In the light of the statement of Fakir Mohammad in his accused statement, it cannot be said that he received money on behalf of the appellant or at direction by the appellant. His statement is showing only this much that the money was given to him by the complainant in the name of Patwari. 10. The statement of PW-1 complainant Bhanwarlal is contradictory about lodging of the written complaint and initial proceedings of application of phenolphthalein powder with the statement of PW-5 Ravikant Tripathi. Ravikant Tripathi has not stated about any kind of talks having taken place on 24-5-1988, therefore, the statement of complainant on this aspect is not believable. He himself has also contradicted his version in Para 34. Ravikant Tripathi has not stated about any kind of talks having taken place on 24-5-1988, therefore, the statement of complainant on this aspect is not believable. He himself has also contradicted his version in Para 34. There is alarming feature in the instant case that the trap party reached at the house of the appellant and the appellant was not available, thereafter, they were searching him and by-chance, the appellant was passing from in front of the house of the complainant in village Semaliya, meaning thereby that the trap party was not able to reach up to the appellant, therefore, they dispersed and complainant reached at his house. This statement of the complainant and the prosecution story is not conceivable. 11. Learned trial Court placed much reliance on the statement of acquitted co-accused Fakir Mohammad with regard to acceptance of money as bribe for the present appellant, whereas in the statement recorded under section 313, Criminal Procedure Code. As mentioned herein-above, the acquitted co-accused has not stated so. Apart from this, the exculpatory statement of co-accused is not admissible against another accused as per provision under section 30 of the Indian Evidence Act. [See: Suresh Gudharmal vs. State of Maharashtra, AIR 1998 SC 3258 and Balkrishna Naayak vs. State of M.P. 2000 Cri. L.J. 4797]. 12. On over all visualization of the evidence on record, there is no evidence worth placing reliance that the money was accepted by the appellant as illegal gratification for performing the mutation proceeding and there is no recovery of the amount from his possession. The statement of the complainant is at variance with regard to whole proceedings and the independent Panch-witness PW-5 Ravikant Tripathi and the statements of co-accused Fakir Mohammad are also not helpful to the prosecution. Solitary statement of the complainant Bhanwarlal, and that too stood contradicted on material particulars by him in cross-examination is not sufficient to base conviction. 13. In this view of the matter, there seems merit in this appeal and the prosecution failed to establish its case beyond all reasonable doubt, with the result that this appeal succeeds and is allowed. The conviction and sentence as awarded by the learned trial Court are set aside. The appellant is on bail. His bail and surety bonds shall stand discharged. Fine, if deposited by the appellant shall be refunded to him, after due verification. 14. The conviction and sentence as awarded by the learned trial Court are set aside. The appellant is on bail. His bail and surety bonds shall stand discharged. Fine, if deposited by the appellant shall be refunded to him, after due verification. 14. Office is directed to send a copy of this judgment to the trial Court along with its record, for compliance.