Judgment S.L.Kochar, J. ( 1. ) The appellant has preferred this appeal against the judgment dated 30.7.1997 passed in Special Criminal Case No.2/96 by Special Judge and 1st Addl. Sessions Judge, Shajapur (M.P.), whereby convicted the appellant under Section 12 of Prevention of Corruption Act, 1988 and sentenced him to RI for one year with fine of Rs. 2,000, in default of payment of fine amount he shall suffer additional RI for four months. ( 2. ) Briefly stated the prosecution case as unfolded before the Trial Court is that on 13.8.1990 in the morning at 10.15 a.m. complainant Station House Officer of police Station Kanad, District Shajapur, Shri Upendra Singh Bhati, was sitting in his chamber of police Station, Kanad. The appellant Ghisalal reached in the chamber of Shri Bhati and disclosed his identity that he was a liquor contractor and wanted to give Rs. 500 to Mr. Bhati. Mr. Bhati refused to take the amount, on which appellant made a proposal for taking some more money and took out an envelope from his pocket and placed the same before him. At that time, witness Maganlal and Sewaram, along with Head Constable Ratanlal, Shivnarayan and Constable Mohammad Amin, Shankarlal and Harishankar, were also present. It is further said that Mr. Bhati, immediately, in presence of the witnesses, prepared the seizure memo Ex. P1 of Rs. 500, which was placed before him by the appellant to permit him to do illegality and irregularities in liquor business. Mr. Bhati registered the First Information Report Ex. P2 for commission of offence under Section 162 of the Indian Penal Code and referred the matter for investigation to S.D.O.P. S.D.O.P. Shri Suraj Prakash Sharma arrested the appellant through arrest memo Ex. P3. On completion of investigation, charge-sheet was filed against the appellant for commission of offence under Section 165A of the I.P.C. ( 3. ) The appellant refuted the charges and examined himself as witness in defence as per provision under Section 315 of the Criminal Procedure Code. His case was that he was serving as a salesman under liquor contractor Prithviraj Jaiswal. Mr. U.S. Bhati joined as Station House Officer of P.S. Kanad before 8 to 10 days of the incident. He had not done any kind of checking in the liquor shop and on the date of incident he was called by Mr. His case was that he was serving as a salesman under liquor contractor Prithviraj Jaiswal. Mr. U.S. Bhati joined as Station House Officer of P.S. Kanad before 8 to 10 days of the incident. He had not done any kind of checking in the liquor shop and on the date of incident he was called by Mr. Bhati for monthly payment and before going to police station, he had a talk on telephone with his master, who directed him to give Rs.500 to Mr. Bhati and he went to police station to give that amount but Mr. Bhati demanded Rs.1,000 on which he told him that he may talk with the contractor. Thereafter, he returned back without giving the money to him and after 15-20 minutes, again he was called through a police Constable in the police station and a false case has been concocted by Mr. Bhati against him. The learned Trial Court framed charge under Section 7 read with Section 12 of the Prevention of Corruption Act, 1988. It appears that Mr. Bhati as well as S.D.O.P. Suraj Prakash Sharma were not knowing that offences from Sections 161 to 165A, were repealed by the Prevention of Corruption Act, 1988 (49 of 1988 Section 31). The learned Trial Court after examining the witnesses of both the parties and hearing them convicted the appellant as described hereinabove. ( 4. ) Having heard the learned counsel for the parties and after perusing the entire record carefully, this Court is of the view that prosecution has failed to prove its case beyond reasonable doubt against the appellant. ( 5. ) PW1 complainant U.S. Bhati has deposed that on 13.8.1990, he was serving as Station House Officer of Police Station Kanad and was in his chamber at 10.45 a.m. Appellant came inside his chamber and gave him an envelope he also requested him to permit to sell the liquor in villages, which could not be sold except from the shop as per terms and conditions of the contract. Further say of this witness is that he had twice or thrice caught the appellant while selling liquor in prohibited area and appellant came to him and requested for not making cases against him and he gave money in an envelope. Further say of this witness is that he had twice or thrice caught the appellant while selling liquor in prohibited area and appellant came to him and requested for not making cases against him and he gave money in an envelope. At that time, two Panch Maganlal and Sewaram and Police Head Constables Shivnarayan, Ratanlal, Constables Mohammad Amin, Shankarlal and Harishankar were also present in his chamber. He refused to take money but appellant persuaded him and gave money with a request to help him in the business. Shri Bhati, in presence of Panch witnesses, prepared the seizure memo of envelope Ex. P1 and registered the F.I.R. Ex. P2 for commission of offence under Section 162 of the I.P.C, thereafter case was handed over to S.D.O.P. Mr. S.P. Sharma for further investigation. ( 6. ) The prosecution has examined Panch witnesses Maganlal (PW4) and Sewaram (PW5). Manganlal (PW4) has deposed that in August 1990, he had gone to Police Station Kanad for lodgi11g report because the in-laws of his servant were not sending his wife to his house and appellants had called the father of the girl. At that time one man came to police station, Station House Officer ousted that person from the chamber and called them. At that time, one envelope was lying on the table, in that envelop fifty notes of Rs.10 denomination were present. He asked Station House Officer as to why this amount was given but he did not disclose anything. At that moment, one person was present there, who told that Shri Bhati called the money but he did not tell for what the money was called. This witness has identified the appellant in Court as a person, who brought the money. He proved his signature on seizure memo Ex. P1 he expressed his ignorance as to why appellant did not sign on the seizure memo. This witness has not been declared hostile by tile prosecution. In examination-in-chief, he has nowhere stated that appellant reached inside the chamber of Mr. Bhati and offered bribe for favouring him in doing illegal sale of liquor. In cross-examination, he has stated that he was sitting in a veranda outside the chamber of Station House Officer and a curtain was hanging on the door, appellant went inside the chamber and had a talk. Bhati and offered bribe for favouring him in doing illegal sale of liquor. In cross-examination, he has stated that he was sitting in a veranda outside the chamber of Station House Officer and a curtain was hanging on the door, appellant went inside the chamber and had a talk. Thereafter, went back and again after 10-15 minutes, through one Constable, appellant was called in the police station and appellant went in the chamber of Mr. Bhati. This witness has also deposed that he did not hear the talk between appellant and Station House Officer, when appellant came first time in his chamber and when he was coming out from the chamber; he a was saying that Mr. Bhati should talk on telephone with the contractor. When appellant again entered in the chamber of Mr. Bhati second time, at that time also he did not hear the talk between them and he was called inside the chamber and shown envelope as well as informed about preparation of Panchnama. This witness has not been declared hostile by the prosecution. Therefore, prosecution is bound by his statement as held by the Supreme Court in case of Sukharam v. State of M.P.1 This witness has supported the statement of the appellant, given on oath in appearing as a defence witness as per provision under Section 315 of the Criminal Procedure Code. Another Panch witness Sewaram has been declared hostile by the prosecution and nothing substantial has come in the cross-examination in support of the prosecution case. On the contrary at the statement of Sewaram was also demolishing the prosecution case regarding giving of Rs. 500 by appellant to complainant Mr. Bhati as bribe. ( 7. ) The prosecution has not examined Investigating Officer, S.D.O.P. Mr. S.P. Sharma, without assigning any reason where as statement of Mr. S.P. Sharma could be very important for the purposes of establishing genuineness of the prosecution case. In the opinion of the Court, in the Police Station, two Head Constables and three Constables were present and if really appellant gave a bribe of Rs.500 in an envelope against the willingness and consent of the S.D.O.P. Mr. Bhati, Mr. Bhati instead of preparing seizure memo Ex. P1 and registering F.l.R Ex. P2 could have called the senior police officer by telephonic message. The appellant could be detained there because the alleged incident occurred inside the police station. Mr. Bhati, Mr. Bhati instead of preparing seizure memo Ex. P1 and registering F.l.R Ex. P2 could have called the senior police officer by telephonic message. The appellant could be detained there because the alleged incident occurred inside the police station. Mr. Bhati has nowhere stated about taking such step to establish his fairness. After registration of crime by Mr. Bhati further investigation was done by Mr. S.P. Sharma, but he was not examined by the prosecution. If Mr. Sharma would have been examined, the defence could have cross-examined on so many aspects of the case to demolish the prosecution story. Therefore, non-examination of Mr. Sharma has prejudice the case of the appellant. The statement of PW2 Head Constable Shivnarayan and PW3 Constable Mohammad Amin are of no use since they were serving under Mr. Bhati in the same police station. Both these witnesses were not the witness of Panchnama, therefore, signatures were not taken on Panchnama Ex. P1. The statement of Mr. Bhati has not been corroborated by PW2 Shivnarayan and PW3 Mohammad Amin but their statements are contradictory to the statement of Mr. Bhati. Mr. Bhati has stated, in paragraph 2, that at the time of giving of envelope to him by appellant inside the chamber, both the panch witnesses and all the five Police Head Constables and Constables were present, but according to these witnesses, they were called later on by Mr. Bhati and PW2 Shivnarayan and PW3 Mohammad Amin have stated that they were informed by Mr. Bhati that appellant gave him Rs. 500 as bribe. PW4 Maganlal has nowhere stated appellant gave bribe of Rs.100 to Mr. Bhati in his presence. Shivnarayan and Mohammad Amin have also not stated so, whereas according to Mr. Bhati at the time of giving of envelope, all these persons were present. This contradiction is very material and important and belies the statement of Mr. Bhati. The statement of Mr. Bhati does not appear to be true regarding presence of all seven persons at the time of giving of bribe by the appellant to Mr. Bhati in his chamber. It is unbelievable that a bribe giver will give bribe in presence of two citizens and five police personnel in the chamber of Station House Officer specially when citizens were not known to him. The statement of Mr. Bhati in his chamber. It is unbelievable that a bribe giver will give bribe in presence of two citizens and five police personnel in the chamber of Station House Officer specially when citizens were not known to him. The statement of Mr. Bhati that he caught twice or thrice the appellant while selling liquor in prohibited area, but no document in support of this version has been filed by him along with the Challan. If appellant was caught, then Mr. Bhati must have prepared case against him. ( 8. ) In the result, this appeal is allowed conviction and sentence passed by learned Trial Court are hereby set aside. Appellant is on bail, his bail bond and surety bond stand discharged. ( 9. ) Office is directed to send the copy of judgment along with the record to the Trial Court for immediate compliance. Appeal allowed.