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2009 DIGILAW 1049 (MP)

Gajanand Singh Thakur v. State of M. P.

2009-08-27

A.K.SHRIVASTAVA, S.S.DWIVEDI

body2009
JUDGMENT : A. K. SHRIVASTAVA, J. Feeling aggrieved by the judgment of conviction and order of sentence dated 27-12-2003 passed by the learned First Additional Sessions Judge, Vidisha, in Special Case No. 4/02, convicting the appellant under sections 7, 13(1)(d) read with section 13(2) of the Prevention of Corruption Act, 1988 (for short the "Act") and thereby sentencing him to suffer six months RI and fine of Rs. 1,000/-, in default further SI of two months and one year RI and fine of Rs. 1,000/-, in default further two months SI respectively with further stipulation that both the sentences shall run concurrently, this appeal has been filed by the appellant under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of the prosecution is that Rajmohan Yadav (hereinafter for short the "complainant") on 13-7-2001 submitted a written complaint in the Lokayukt Office complaining that his brother Ram Singh Yadav, in order to dig a Well and to install an engine in the said Well got a loan sanctioned from Krishi Avam Gramin Vikas Bank, Branch Peepaldhar. The said Bank paid two instalments of Rs. 9,000/- and Rs. 10,500/- to his brother Ram Singh Yadav, but at every time, in order to make the payment of the instalments, the appellant made a demand of bribe of Rs. 1,000/-, which was also paid to him. Now the last instalment of the loan is to be paid to his brother to install an engine in the Well, but the appellant made a demand of bribe of Rs. 1,000/- and the deal has been settled for Rs. 800/-. In the complaint, it has also been mentioned that Rs. 500/- has already been received by the appellant and the remaining amount of Rs. 300/- is to be paid. Apart from this, the father-in-law of complainant namely Mohkam Singh, in order to purchase pipe requested the appellant to register the case for grant of loan and for this the appellant made a demand of illegal gratification of Rs. 500/- from him and a sum of Rs. 300/- was already paid to him. But it was told by the appellant that after the payment of the bribe of Rs. 200/-, the requisite papers will be prepared. Since the complainant is not ready to pay the amount of bribe, in total Rs. 500/-, a complaint is being submitted by him. 3. 300/- was already paid to him. But it was told by the appellant that after the payment of the bribe of Rs. 200/-, the requisite papers will be prepared. Since the complainant is not ready to pay the amount of bribe, in total Rs. 500/-, a complaint is being submitted by him. 3. On receiving the complaint, the Superintendent of Police (Lokayukt) summoned the two independent witnesses, namely, D.C. Mishra and A. K. Shukla to whom the complaint of the complainant was read over and after they satisfied that the complaint appears to be genuine, a scheme of trap was prepared. On submitting five currency notes having denomination of Rs. 100/- each by the complainant, those currency notes were treated by phenolphthalein powder and the treated currency notes were kept in his pocket of the shirt and he was directed that he should not come in contact with these currency notes and should hand over these treated currency notes to the appellant only when he makes a demand of bribe. A pre-trap Panchnama in that regard was also prepared in the office of the Lokayukt. 4. The trap party thereafter proceeded to the Bank, where the appellant was serving as Branch Manager. The vehicle, in which the members of the trap party as well as the complainant were sitting, was stationed at a distance of one kilometer from the Bank. Thereafter, the complainant was sent to the Bank and two persons were also sent along with him as shadow witnesses. But, it is said that the shadow witnesses, namely, Constable Ramnath and Silvanush Tirki did not go inside the Branch of the Bank along with the complainant and they stood nearby the shops. After 5-10 minutes, the complainant came out from the Bank and forgot to give the signal to the members of the trap party, but he told constables Ramnath and Silvanush Tirki (both of them not examined) that the transaction of bribe had taken place. Thereafter, both these constables (not examined) entered inside the Bank, but on seeing these two constables, it is said that the appellant misplaced the treated currency notes. The members of the trap party as well as the Constables and the Investigating Officer tried their best to seize the treated currency notes, but those notes were not found by them. Thereafter, both these constables (not examined) entered inside the Bank, but on seeing these two constables, it is said that the appellant misplaced the treated currency notes. The members of the trap party as well as the Constables and the Investigating Officer tried their best to seize the treated currency notes, but those notes were not found by them. Not only this on being asked from the appellant repeatedly, he declined to accept any bribe. Thereafter, the hands of the appellant were washed in the solution of sodium carbonate and on dipping the fingers of his hands in the solution, the colour of the solution turned to pink, which was collected in a separate sealed bottle. The fingers of the hands of the complainant were also dipped in the solution of sodium carbonate and on dipping the fingers the colour of the solution turned to pink which was also sealed in a separate bottle. But on dipping the hands of Constable Ramnath Singh (not examined), who was one of the members of the trap party, the colour of the solution did not turn to pink. The colourless solution was also collected in the separate bottle. 5. After the investigation was over and requisite sanction to lodge a prosecution case against the appellant was obtained, a charge-sheet was submitted in the Special Court and charges under sections 7, 13(1)(d) read with section 13(2) of the Act were framed against the appellant, which he denied and requested for the trial. 6. In order to bring home the charges, the prosecution has examined as many as ten witnesses and placed Ex.P/1 to Ex.P/28 the documents on record. The defence of the appellant is of false implication as well as making payment of the last instalment of the loan was not in his domain because the work, which was required to be completed by Ram Singh to whom the loan was given, was not complete. However, in support of his decence, the appellant did not examine any witness. 7. The learned Special Judge on the basis of the evidence placed on record came to hold that the charges framed against the appellant are proved and eventually convicted him and passed the sentences which have been mentioned hereinabove. 8. In this manner, the present appeal has been filed by the appellant assailing the impugned judgment of conviction and the order of sentence. 9. 8. In this manner, the present appeal has been filed by the appellant assailing the impugned judgment of conviction and the order of sentence. 9. The contention of Shri Atul Gupta, learned counsel for the appellant is that in the present case, the prosecution has not sent any person as surveillance witness in order to establish that what actually transpired in between the appellant and the complainant, therefore, still it is a mystery that the appellant ever made any demand of bribe and accepted the same. Further, it has been contended by him that as per the prosecution's own case, the money of bribe has not been recovered from the appellant not it was found in his chamber despite the full efforts of the Investigating Agency as they searched not only the pockets of the clothes which the appellant was wearing, but the drawers of the table, office files, almirah, etc. and, therefore, since the alleged amount of bribe was not recovered from the appellant, the statutory presumption under section 20 of the Act cannot be made applicable against him. It has also been put forth by the learned counsel that looking to the evidence of independent Panch witnesses D. C. Mishra (PW1) and A. K. Shukla (PW3) right from very beginning, the appellant was saying that he has not made any demand of bribe or accepted the same and thereafter the Investigating Officer and other Police personnels took personal search of the appellant and, therefore, coming in the contact with the particles of the phenolphthalein powder can be ruled out. 10. By inviting our attention to the evidence of the witness, it has been contended that before searching the alleged bribe money from the person of the appellant, the hands were not subjected to the phenolphthalein powder test and when the Police personnels were searching the appellant, it can be presumed that the appellant came into contact of phenolphthalein powder and thereafter when his hands were subjected to the phenolphthalein powder test, certainly, the colour of the solution of the sodium carbonate would turn to pink. 11. On these premised submission, it has been contended by the learned counsel that this appeal be allowed and the impugned judgment passed by learned Special Court convicting the appellant be set aside and appellant be acquitted from all the charges. 12. 11. On these premised submission, it has been contended by the learned counsel that this appeal be allowed and the impugned judgment passed by learned Special Court convicting the appellant be set aside and appellant be acquitted from all the charges. 12. Per contra, Shri T. C. Bansal, learned Public Prosecutor argued in support of the impugned judgment. 13. Having heard the learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed. 14. In the present case for the reasons best known to the prosecution two constables, namely, Ramnath and Silvanush Tirki which were sent along with the complainant have not been examined. It is borne out from the testimony of the complainant as well as from the evidence of independent Panch witnesses, namely, D. C. Mishra (PW1) and A. K. Shukla (PW3), that they were also sent along with the complainant as shadow witnesses. Thus, the entire story of prosecution runs within the sphere of the evidence of complainant Rajmohan Yadav, who has been examined as PW9, independent Panch witnesses D. C. Mishra (PW1), A. K. Shukla (PW3) and Investigating Officer R. K. Vajpai (PW10). Apart from these witnesses, according to us, the evidence of General Manager O. P. Dubey (PW5), Madhukar Pusalkar (PW8) is quite relevant and so also of Ram Singh (PW7), who obtained the loan to dig a Well and to install an engine in it. 15. We shall now scan and marshal the evidence of these witnesses one by one. 16. Before we marshal the evidence of the witnesses, it would be relevant to mention here that after the full errors made by the Investigating Agency, the alleged money of bribe was not recovered from the appellant nor the same was recovered from his chamber, drawer of his table, almirah etc. and in that regard Panchanama (Ex.P/5) has also been filed. all the prosecution witnesses are saying that despite the search of the appellant was taken, the alleged amount of bribe was not recovered from him and the money was also not recovered from his chamber, office files, drawers, almirah, etc. On going through the spot map (Ex.P/9), we find that the chamber of the appellant in the Branch of his Bank, consists of a room having only one door without any window etc. On going through the spot map (Ex.P/9), we find that the chamber of the appellant in the Branch of his Bank, consists of a room having only one door without any window etc. It would mean that if a person enters from that door, he will go out from that door only and there is no other way to access. There is no evidence on record in order to show that after the alleged transaction of bribe took place between the appellant and the complainant, the appellant came out from his chamber and had gone somewhere else, therefore, because there is no seizure of the alleged money of bribe from the appellant, there cannot be any statutory presumption of acceptance of bribe as envisaged under section 20 of the Act. 17. So far as the evidence of complainant Rajmohan Yadav (PW9) is concerned, according to him, the appellant stopped the payment of loan instalment, which was to be paid to his brother Ram Singh (PW7) and in order to make payment of last instalment to his brother, the appellant made demand of illegal gratification of Rs. 1,000/-, but the matter was settled for Rs. 800/-. According to the complainant, he paid Rs. 500/- to the appellant and the balance amount of Rs. 300/- was required to be paid. Similarly, in order to register a case of his father-in-law, the appellant made a demand of illegal gratification of Rs. 500/- and a payment of Rs. 300/- was already made to him and the rest amount of Rs. 200/- was to be paid and thus in total, the appellant was making the demand of Rs. 500/- towards the bribe. Further, this witness has stated that since he did not wish to give any amount of bribe, hence, he filed a complaint (Ex.P/1) in the Office of the Lokayukt. It has also been stated by this witness that in the Office of Lokayukt, he gave five currency notes having denomination of Rs. 100/- each (in total Rs. 500/-) and one employee of the Lokayukt Police applied phenolphthalein powder on those currency notes. Thereafter, the treated currency notes were kept in the left pocket of the complainant and tape-record was also given to him to get the conversation recorded, which would take place between him and the appellant. 100/- each (in total Rs. 500/-) and one employee of the Lokayukt Police applied phenolphthalein powder on those currency notes. Thereafter, the treated currency notes were kept in the left pocket of the complainant and tape-record was also given to him to get the conversation recorded, which would take place between him and the appellant. Thereafter in between 2.00-2.30 PM from Bhopal, he along with the members of the trap party proceeded to Pipaldhar. Before going to Pipaldhar, a pre-demonstration of change of colour of solution of sodium carbonate coming into the contact with phenolphthalein powder was made and a pre-trap Panchnama was prepared. 18. According to this witness, in between 4.15-4.30 PM, they reached Pipaldhar, where the vehicle was stationed little far away from the Bank building. This witness was alighted from the Jeep and two persons of Lokayukt were sent along with him. According to the complainant, these two persons sat in front of the hotel of the Bank and he alone went inside the Bank, where he met to the appellant. Further, he says that he told appellant that he has brought the money of bribe Rs. 500/-, and thereafter he took out the treated currency notes of Rs. 500/- and handed over it to the appellant. According to this witness, before giving the money of bribe, this witness put on the tape-record on. The appellant on receiving the amount of bribe of Rs. 500/-, kept the same in the left pocket of his shirt. 19. According to the complainant, after the transaction of bribe took place, he come out from the chamber of the appellant gave a signal to the members of the trap party by rubbing his hand on his head and thereafter he went to the place where the Jeep was stationed. The members of the trap party thereafter entered inside the chamber of the appellant and made enquiry from him about the acceptance of the bribe money, but, the appellant specifically stated that he did not accept any amount of bribe. Thereafter, the members of the trap party put on the tape-recorder to hear the conversation, which took place between this witness and the appellant, but according to this witness, the cassette of the tape-recorder was not seized and the requisite seizure memo was not prepared. Thereafter, this witness was declared hostile on the point of seizure of cassette and tape-recorder etc. Thereafter, this witness was declared hostile on the point of seizure of cassette and tape-recorder etc. The suggestion put to this witness by the Public Prosecutor after declaring him hostile that he forgot to give the signal to the members of the trap party has been emphatically denied by him and further he has denied that after coming out from the Bank, he informed the members of the trap party that he had given the alleged amount of bribe to the appellant. Thus, complainant himself is saying and admitting that he did not say to Lokayukt person about the payment of bribe money to the appellant, and if his statement is accepted, how the members of the trap party came to know that the transaction of alleged bribe has taken place. The case diary statement (Ex.P/25) in that regard is denied by this witness. 20. In cross-examination Para 28, he has admitted that two instalments of loan were paid by his brother Ram Singh, but the third instalment was not deposited by him. He has admitted that after the payment of the instalments of loan, the Bank Officers used to visit the site that how much work has been done from the funds of the Bank and a report is also required to be submitted to the higher authorities and thereafter only the next instalment of loan can be paid. Although the suggestion put to the complainant that after the payment of two instalments, the third instalment was not paid because the work was not complete, has been denied by the complainant, but, if at this juncture, we examine the requisite file, which has been marked as Ex.P/17 and its order sheet dated 25-6-2001, we find that there is an endorsement that the agriculturist has been noticed that last instalment shall be paid only after the completion of the entire work. Thus, before the date of trap viz. 13-7-2001, there is an endorsement that the third instalment cannot be paid till the complete work is done. 21. At this juncture, we would also like to scan the evidence of Ram Singh (PW7), who is the brother of complainant and who has obtained the loan from the Bank. In Para 7 he has specifically stated that before the payment of last instalment, the digging work of the Well was not complete. 21. At this juncture, we would also like to scan the evidence of Ram Singh (PW7), who is the brother of complainant and who has obtained the loan from the Bank. In Para 7 he has specifically stated that before the payment of last instalment, the digging work of the Well was not complete. Complainant Rajmohan Yadav (PW9) has also admitted in Para 28 of his cross-examination that he is acquainted with the procedure of the Bank that after completion of the entire work, the last instalment is to be paid. Since the digging work of the Well was not complete, this has been admitted by Ram Singh (PW7) for whom the loan was sanctioned as well as the procedure is well acquainted to the complainant also that before the completion of the entire work, the last instalment cannot be paid, according to us, there was no occasion for the appellant to make any demand of bribe for the payment of last instalment of the loan. In this context, we may profitably place reliance on the decision of the Supreme Court Ganga Kumar Shrivastava vs. State of Bihar, (2005) 6 SCC 211 . 22. Coming back to the evidence of the complainant, we find that although two persons were sent along with him and they were made as surveillance witnesses, but they did not go all along with the appellant inside the Chamber, where the appellant was sitting, on the contrary in front of the Bank nearby a Hotel they sat, therefore, it is difficult to infer that what actually transpired between the appellant and complainant at the time of actual giving of money of the bribe. According to us, the Investigating Agency was obliged to sent the shadow witnesses to overhear what actually transpired and what actually happened and how it happened at the time of the alleged transaction of bribe. This essential evidence in that regard is very much wanting in the present case. The Supreme Court in Smt. Meena Balwant Hemke vs. State of Maharashtra, AIR 2000 SC 3377 in Para 9 has categorically held that the law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also. The Supreme Court in Smt. Meena Balwant Hemke vs. State of Maharashtra, AIR 2000 SC 3377 in Para 9 has categorically held that the law has always favoured the presence and importance of a shadow witness in the trap party, not only to facilitate such witness to see but also overhear what happens and how it happens also. Further, the Supreme Court has held that there should be essential corroboration of the evidence of the complainant in this regard that what actually transpired at the time of the alleged occurrence and acceptance of the bribe, which was wanting in the case of Smt. Meena Balwant Hemke (supra). Similarly, in the present case also such type of evidence is wanting. 23. In earlier decision Bal Krishan Sayal vs. State of Punjab, (1987) 2 SCC 647 , the same view was taken by the Apex Court, wherein the Supreme Court has held that the two outer witnesses, who were examined, did not speak as to what transpired in the conversation between the bribe giver and the appellant. The present case is rather on the better footings because in the given case, the shadow witnesses did not go all along with the complainant. 24. In the cross-examination Para 31, the complainant has admitted that when he along with the trap party was going to Pipaldhar, he was sitting on the rear seat of the vehicle and one Rajendra Singh was also sitting nearby him. He further stated that he did not remember that the Police person, who applied phenolphthalein powder on the currency notes, was also sitting nearby him. Later on, in the same para, this witness is saying that on reaching Pipaldhar at 4.30 PM, this witness went towards the Bank along with two Police Constables, out of whom one applied phenolphthalein powder on the currency notes. But both these constables did not go inside the Bank, and they sat nearby a Hotel and the complainant alone went inside the bank. But both these constables did not go inside the Bank, and they sat nearby a Hotel and the complainant alone went inside the bank. Thus, we can infer that a constable who has not been examined by the prosecution and who applied the phenolphthalein powder on the currency notes, was all along with the complainant and, therefore, the possibility of coming into contact with the hands of that constable with appellant cannot be ruled out and it can be inferred and presumed that the particles of phenolphthalein powder came into contact with the complainant before the treated currency notes were given to the appellant, which creates a doubt upon the hallmark of the story of prosecution. 25. It has also been stated by this witness in Para 31 that he is having intimacy and friendship with the appellant for last 4-6 years and according to the need, he happens to borrow the money from him. He has also admitted that on account of friendship, both of them happened to take out the cigarette and Beedi etc. from the pocket without taking permission from each other. Thus, we can infer that in usual manner the complainant might have taken out cigarrate from the pocket of appellant and in this manner the particles of phenolphthalein powder might have fallen at the place of the pocket of appellant and for this reason in chemical test, the colour of the solution of sodium carbonate turned to pink. 26. In Para 33 also, this witness has put his inability as to whether the Police personnels after entering inside the room, where the appellant was sitting, shook their hands with him. Similarly, he was unable to say that some scuffling took place between the appellant and those two Constables, who accompanied him, as he did not go to the Bank for second time after the transaction of bribe took place and he stayed nearby the Hotel. This witness has admitted that the bribe money was not seized from the appellant despite he was searched thoroughly. Further, in Para 34, he has admitted that the appellant was repeatedly saying that neither he has made any demand of bribe nor he has accepted the same. If for the second time, complainant did not go to the Bank how he came to know that amount of bribe was not found from the appellant. Further, in Para 34, he has admitted that the appellant was repeatedly saying that neither he has made any demand of bribe nor he has accepted the same. If for the second time, complainant did not go to the Bank how he came to know that amount of bribe was not found from the appellant. Hence, we can infer that he is concealing the reality. 27. In the examination-in-chief, this witness has stated that after the transaction of bribe took place, he gave signal to the members of the trap party by rubbing his hand on his head. On being confronted to him by his case-diary statement (Ex.P/26), he has denied the suggestion that he forgot to give the signal. 28. So far as the evidence of the transcript of the tape-recorded version is concerned, there is no cogent evidence on record that the voice in the cassette is of complainant and appellant. Apart from this, there is nothing in the transcript that appellant made any demand of bribe. It is borne out from the testimony of complainant that he happened to borrow money from appellant. In the transcript, it is mentioned that appellant made demand from complainant to give cigarette. In these state of affairs, the tape-recorded version cannot be accepted so as to make appellant liable for the charges framed against him. 29. The legal position in regard to the status of the complainant is well settled that his status is not better than that of an accomplice. No doubt, it is true that under section 133 of the Evidence Act, an accomplice is a competent witness against an accused person and a conviction cannot be said to be illegal merely because it proceeds upon his uncorroborated testimony. On the other hand, as per Illustration (b) to section 114 of the Evidence Act, the evidence of accomplice is unworthy of credit, unless he is corroborated in material particulars. Thus, from the beginning, the law has developed that it would be unsafe to place reliance on the sole testimony of the accomplice in absence of corroboration on the material points. Thus, from the beginning, the law has developed that it would be unsafe to place reliance on the sole testimony of the accomplice in absence of corroboration on the material points. In this context, we may profitably place reliance on the decision of the Supreme Court Raghbir Singh vs. State of Punjab, AIR 1976 SC 91 , wherein the Supreme Court has categorically held that the Officers functioning in the anti-corruption department must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt as to whether or not any money was paid to the public servant by way of bribe. They should insist on observing this safeguard for the protection of public servants against whom a trap may have been laid. The other decisions on the point are Darshan Lal vs. The Delhi Administration, AIR 1974 SC 218 and Lachman Dass vs. State of Punjab, AIR 1970 SC 450 . 30. We shall now examine the evidence of D. C. Mishra (PW1) and A. K. Shukla (PW3) who are the independent Panch witnesses. 31. D. C. Mishra (PW1) at the relevant point of time was serving on the post of Assistant Sales Tax Officer. According to him, he was a member of the trap party and the trap party proceeded to Pipaldhar, where at one place the Jeep was stationed and the complainant was directed to go to the Bank to give the bribe to the appellant. According to this witness, one Constable was also sent along with the complainant and that Constable was instructed that he should maintain some distance with the complainant. According to this witness, the shadow witness also went inside the chamber of the appellant along with the complainant. On the other hand, complainant Rajmohan Yadav (PW9) specifically says that he alone went inside the chamber of the appellant. Thus, there is material contradiction on the material point in the testimony of complainant as well as this Panch witness. 32. According to this witness, after some time the complainant came out from the chamber of the appellant and told the members of the trap party that transaction of bribe has taken place, although he forgot to give the signal. Thus, there is material contradiction on the material point in the testimony of complainant as well as this Panch witness. 32. According to this witness, after some time the complainant came out from the chamber of the appellant and told the members of the trap party that transaction of bribe has taken place, although he forgot to give the signal. Thereafter, the trap party immediately rushed inside the chamber of the appellant and Inspector R. K. Vajpai (PW10) made inquiry from the appellant whether he obtained the bribe money, on this the appellant firmly denied that he has taken any bribe. Thereafter, the complainant told that the appellant has kept the bribe money in the upper pocket. Thereafter, Inspector R. K. Vajpai (PW10) searched the appellant, but the bribe money was not recovered from him. Thereafter, the Inspector also searched the complainant, but from him also, the amount of bribe was not recovered. At this juncture, we would like to mention here that before searching the body of the appellant or complainant, it was incumbent upon Inspector R. K. Vajpai (PW10) to get fingers of his hands subjected to phenolphthalein powder test in order to demonstrate that his fingers are not covered with the phenolphthalein powder. In order to establish that the trap is fair, indeed, it was incumbent upon the Inspector Vajpai to have conducted phenolphthalein powder test on him and if the colour of the chemical solution would not have changed, it could have been inferred that his hands were not covered by phenolphthalein powder. Thereafter, after searching the appellant again his hands should have been subjected to chemical test, so that it can be established that after searching the appellant on dipping his finger in the chemical solution, the colour is changed. The Investigating Agency has totally deviated with this procedure. 33. It has come in the evidence of this witness that Inspector R. K. Vajpai (PW10) not only searched the body of the complainant, but also searched the body of the appellant and, therefore, possibility of falling of the particles of the phenolphthalein powder in the pocket and hands of the appellant cannot be ruled out this witness is also saying that the appellant was repeatedly saying that he did not make any demand of bribe and accept the same. The suggestion was put to this witness in Para 19 that he cannot say whether the powder of phenolphthalein was kept in the bag by the Inspector, which he replied in affirmative. In Para 21 of cross-examination, this witness is saying that by the conduct of the appellant and the complainant, it was apparent that they were knowing to each other. In para 22, this witness has stated that for half an hour, the treated currency notes were searched, but they were not found and before taking search of the appellant, the hands of Inspector R. K. Vajpai (PW10) were not washed in the sodium carbonate. The hands of the Constable, who brought the bag of Inspector R. K. Vajpai (PW10), were also not subjected for phenolphthalein powder test. Thus, from the evidence of this witness, if after searching the body of the appellant, phenolphthalein powder test was conducted, the case of the prosecution would become highly doubtful. 34. The other independent Panch witness A. K. Shukla (PW3), who has categorically stated that after keeping the treated currency notes in the pocket of the complainant, he was directed not to come in the contact of these treated currency notes and should give these currency notes only after the demand of bribe is made by the appellant. Specifically this witness is saying in his examination-in-chief that the complainant himself kept the treated currency notes in his pocket and if that is the position, according to us, the complainant already came into contact with phenolphthalein powder and, therefore, it can be inferred that the complainant must have come into contact with the hands of the appellant were subjected to the phenolphthalein powder test, certainly the colour of solution of the sodium carbonate would turn to pink even though the transaction of alleged bribe did not take place. According to us, it was incumbent upon the Investigating Agency that if the complainant himself kept the treated currency notes in his pocket before the trap took place, his hands should have been thoroughly washed so that all the parties of phenolphthalein powder may be completely washed out, but there is no evidence that this procedure was adopted. 35. According to us, it was incumbent upon the Investigating Agency that if the complainant himself kept the treated currency notes in his pocket before the trap took place, his hands should have been thoroughly washed so that all the parties of phenolphthalein powder may be completely washed out, but there is no evidence that this procedure was adopted. 35. This witness further says that the complainant was sent to the Bank with a direction that after the transaction of bribe took place, he will give signal by rubbing his hand on his head, but after waiting for a considerable long period, the members of the trap party did not receive any signal, however, after sometime, they found that the complainant is coming towards them but he did not tell what has happened. In this context, Para 6 of the examination-in-chief of this witness may be read. According to us, since it was not told by the complainant to the members of the trap party that transaction of bribe has taken place nor he gave any signal, then it is difficult to hold that the appellant made the demand of bribe and accepted the same. This witness was not declared hostile by the prosecution and, therefore, the evidence of this witness is binding on the prosecution. in this context, we may profitably place the reliance on the two decisions of the Supreme Court Mukhtiar Ahmed Ansari vs. State (NCT of Delhi), 2005 SCC (Cri) 1037 and Raja Ram vs. State of Rajasthan, 2005 SCC (Cri) 1050. 36. A. K. Shukla (PW3) has further stated that when the complainant did not say anything about the transaction of bribe to him or to the members of the trap party, then immediately all the members of the trap party rushed towards the Bank, however, on the way the complainant told them that he gave the amount of bribe to the appellant. On entering inside the Bank, this witness found that two Constables were catching hold the hands of the appellant. Needless to say that these two Constables have not been examined by the prosecution and one of the Constable is the person who applied the phenolphthalein powder on the currency notes. On entering inside the Bank, this witness found that two Constables were catching hold the hands of the appellant. Needless to say that these two Constables have not been examined by the prosecution and one of the Constable is the person who applied the phenolphthalein powder on the currency notes. Later on, this witness says that the appellant was repeatedly saying that he has not taken the bribe and thereafter the Constables informed the members of the trap party that the bribe amount has been kept by the appellant in the left pocket of his shirt, but on searching the pocket, the said amount was not found and thereafter, the phenolphthalein powder test was conducted. Specifically this witness is saying that first of all the hands of the appellant were dipped in the solution of sodium carbonate, which turned into pink and thereafter again separate solution of sodium carbonate was prepared and the fingers of the hands of the members of the trap party were dipped, but the colour of the solution did not turn to pink. If the members of the trap party before conducting the phenolphthalein powder test searched the body of the appellant and because it is said that the bribe money was kept in the pocket, which was also searched by the members of the trap party, certainly when their fingers were dipped in the solution of sodium carbonate, the colour of the solution ought to have changed to pink, but, the specific evidence of this witness is that the colour of solution was not changed, which would mean that the entire case of the prosecution in regard to the conduction of phenolphthalein powder test becomes highly doubtful. 37. This witness A. K. Shukla (PW3) is also saying that the entire Bank, office files, drawers of the table, almirah, etc. were searched, but the bribe money was not found. Since the Court time was over, the cross-examination of this witness was deferred for the next day, i.e., for 19-2-2003 and on the next day in Para 21 he has stated that on 18-2-2003 it was incorrectly stated by him that the complainant himself kept the treated currency notes in his pocket before going for the trap. In para 30 of his cross-examination, this witness has admitted that the files Ex.P/16 and Ex.P/17 were seized from the Bank. In para 30 of his cross-examination, this witness has admitted that the files Ex.P/16 and Ex.P/17 were seized from the Bank. We have already mentioned hereinabove that in Ex.P/17, which is the file pertaining to giving loan to Ram Singh, there is an order sheet dated 25-6-2001 that the last installment could be paid only after the entire work is complete. 38. On going through the evidence of Investigating Officer R. K. Vajpai (PW10), we find that the complainant was accompanied along with Constables Silvanush Tirki and Ramnath and they were sent as surveillance witnesses. both these witnesses have not been examined and it is borne out from the evidence of these witnesses, which we have discussed hereinabove, that these two witnesses did not go along with the complainant inside the chamber of the appellant, on the contrary, they sat outside the Bank nearby a Hotel. In Para 7, the Investigating Officer is saying that the appellant was repeatedly saying that he has not accepted any amount of bribe. Thereafter, the phenolphthalein powder test was conducted and later on, the body of the appellant was searched. However, the evidence of the independent witnesses is altogether different and contrary to the evidence of Investigating Officer, in respect of taking search of appellant and complainant. 39. On marshalling the evidence of the abovesaid witnesses, it is difficult to hold that the appellant made any demand of bribe or accepted the same and the phenolphthalein powder test was not conducted according to the norms, since it has been said by independent Panch witness that after searching the body of the appellant and complainant the said chemical test was conducted and admittedly the amount of brie has not been seized from the appellant. There is no evidence that after giving the money of bribe, the appellant came out from the Bank and had gone somewhere. Thus, the case of the prosecution becomes highly doubtful. 40. There is no evidence that after giving the money of bribe, the appellant came out from the Bank and had gone somewhere. Thus, the case of the prosecution becomes highly doubtful. 40. It would be relevant to discuss the evidence of General Manager O. P. Dubey (PW5), who has proved the procedure that how and in what manner the last installment of loan is to be paid and according to him after the receipt of the report that the entire work for which the loan was given is complete, the last installment is to be paid and similar type of the statement is of Madhukar Pusalkar (PW8), who is the Manager of the Bank. 41. Thus, according to us, the defence, which has been taken by the appellant that because the work was not complete and, therefore, he was not making the payment of the last installment and hence he has been falsely roped, is found to be quite probable. The Supreme Court in the case of Punjabrao vs. State of Maharashtra, AIR 2002 SC 486 has categorically held that in the cases under the Prevention of Corruption Act, if the defence is found to be probable, due weightage should be given to it and the degree of proof should not be compared to that of the prosecution where the prosecution is obliged to prove its case beyond all reasonable doubts. The same view has been taken by the Supreme Court in the latter decision V. Venkata Subbarao vs. State represented by Inspector of Police, A.P. AIR 2007 SC 489 (Para 25). 42. For the reasons stated hereinabove, we are of the view that the prosecution has failed to rove the charges framed against the appellant and, therefore, we have no option except to set aside the impugned judgment convicting the appellant for the charges under section 7, 13(1)(d) read with section 13(2) of the Act. 43. This appeal is accordingly allowed. The judgment of conviction and order of sentence passed by the learned Special Judge is hereby set aside and the appellant is acquitted from all the charges. The amount of fine, if deposited, be refunded to him.