JUDGMENT D.N. Upadhyay, J.- This criminal appeal is directed against the judgment of conviction and order of sentence dated 10.10.2007 and 11.10.2007 respectively passed by Sri P.C. Agrawal, Additional District & Sessions Judge-VIII-cum-Spl. Judge, C.B.I., Dhanbad in R.C. Case No.15A/1988(D) whereby and whereunder the sole appellant Parmeshswar Prasad Jaiswal has been held guilty for the offences punishable u/s 5(2) r/w5(1)(d) of the Prevention of Corruption Act, 1947 corresponding to Section 13(2) r/w 13(1) (d) of the Prevention of Corruption Act, 1988 and sentenced to undergo R.I. for three years with fine of Rs.500/-and in default in depositing fine, further imprisonment for two months R.I. However, the period undergone during the trial was directed to be set off. 2. The prosecution case, as it appears from the complaint of one Sri Kedar Nath Pandey, reported to S.P., C.B.I., Dhanbad on 01.08.1988 is that at the relevant point of time complainant was Pay Loader Operator, employed in East Basuria Colliery Area-VI, BCCL, Dhanbad and was working under the charge of the accused/appellant namely Parmeshwar Prasad Jaiswal. It is further stated that appellant was Sr. Assistant Colliery Manager and was the incharge of Tipper Section and it was his duty to allow duties to the operators and drivers of the Tipper Section of East Basuria Colliery and to allow overtime to the drivers, Pay Loader Operators. Further, according to the complainant, accused/appellant, as an incharge of tipper section used to demand Rs.100/-every month for allowing overtime to Pay Loader Operator and when the complainant approached him on 29.07.1988 for allowing overtime, accused/appellant demanded Rs.200/-for two months and after request made by the complainant, he agreed to accept Rs.150/-and balance Rs.50/-subsequently. According to the complainant, as he was not willing to pay illegal gratification to accused/appellant, he lodged a written complaint on 01.08.1988 to the Superintendent of Police, C.B.I., Dhanbad for taking necessary legal action. 3. According to the prosecution, the said complaint was got verified by one C.B.I. Officer and the allegation, made therein was found to be genuine and thereafter a regular case was registered bearing R.C. Case No.15A/88-D dated 01.08.1988 and the investigation was taken up by Sri A.K. Asthana, Inspector of Police, C.B.I., copy of the F.I.R. was forwarded to the Court of Spl. Judge, C.B.I., Dhanbad under the signature of S.P., C.B.I., Dhanbad. 4. Judge, C.B.I., Dhanbad under the signature of S.P., C.B.I., Dhanbad. 4. Further, according to the prosecution, during the course of investigation a successful trap was led by a team of officials of SPE, C.B.I., Dhanbad in active participation of two independent witnesses, namely, Sri L.N. Dibakar and Sri R.C. Saha, U.G.C. and Stenographer respectively in the office of the Regional Labour Commissioner, Dhanbad. The complainant was also present with the team. As per prosecution, the team assembled in the office of S.P. S.P.E., C.B.I., Dhanbad on 02.08.1988 and the pre-trap formalities were explained in details and a practical demonstration was also held in order to make the process of laying of trap clear to the persons present. During this the complainant replied to the question put by the witnesses by which genuineness of the allegations, made by the complainant was found to be satisfied. According to the prosecution, after completing the above formalities, the complainant produced three G.C. Notes of Rs.50/-each being number 7 DD-A-845911, 8AH-187040 and 9 BA-672517. These currency notes were treated with phenolphthelein powder and pre-trap formalities were incorporated in the preliminary memorandum which has been signed by the members of raiding party two witnesses and the complainant. The hand wash of Sri L.N. Diwakar obtained during the demonstration and the piece of papers treated with phenolphthelein powder, which was used during the demonstration, were preserved and sealed. Necessary instructions were given to the members of raiding party, the complainant and two witnesses. Witness Sri R.L. Saha was adviced to shadow the complainant and other members including other witnesses were adviced to position themselves in and around the place of transaction in order to overhear the conversation and the passing of tainted money between the complainant and the accused, if possible. It was ensured that no members including the complainant and the witnesses retain any currency notes with them. The shadow witness was adviced to pass signal by rubbing his head with his right hand as soon as the transaction was over. Further, according to the prosecution, the raiding party mentioned above, left C.B.I. office and arrived East Basuria Colliery. All the members took up their position as adviced earlier and the complainant proceeded towards the office of the accused and met him near the gate. The complainant wished the accused who immediately enquired from him “KYA JI PANDEY, TUMNE OT KE BARE MEIN KYA SOCHA? All the members took up their position as adviced earlier and the complainant proceeded towards the office of the accused and met him near the gate. The complainant wished the accused who immediately enquired from him “KYA JI PANDEY, TUMNE OT KE BARE MEIN KYA SOCHA? The complainant replied “SIR HUM TO JAISA AAP KAHE THE DERH SAU RUPIYA LAYE HAIN”. The accused then reminded the complainant “LEKIN BAKI PACHASH RUPIYA BHULNA NAHIN AUR JALDI HI DENA”. The complainant accepted and remained silent. The accused then demanded the money by saying “LAYO RUPIYA DO AUR ES HAFTE SE TUMHARA BHI OT BANA DENGE”. Further prosecution has stated that the complainant thereafter immediately took up the money from his pocket and handed over the same to the accused/appellant who accepted and kept the tainted money in the right hand side pocket of his trouser after counting. The personal search of the accused/appellant was made and tainted money was recovered apart from the sum of Rs.370/-. These amounts were preserved separately. The left and right hand and also the inner lining of right hand pocket of his trouser were washed in the solution of Sodium Carbonate prepared separately for washing of each. As a result of which the milky colour solution turned pink when his right hand side pocket and the right hand were washed but the colour did not apparently changed in case of left hand. Further, according to the prosecution, these wash were preserved and sealed in three separately phials and the recovered tainted money was sealed in an envelop. These exhibits were signed by the members of raiding party, the witnesses and the complainant. A memorandum of recovery incorporating the post trap memorandum was prepared and were signed by the members of trap parties. Further, according to the prosecution, investigation revealed that the accused/appellant was the incharge of the Tipper Section and was responsible for allocation of duties to the Pay Loader Operator, dumper drivers etc. It has also been found that the accused was competent to allow the overtime to operators also. Further, according to the prosecution, the hand wash of witness, accused and the wash of pocket were sent to the Director, C.F.S.L., Calcutta who has opined that both the phenolphthelein powder and sodium carbonate were detected in the contents of four phials which were sent to them. Further, according to the prosecution, the hand wash of witness, accused and the wash of pocket were sent to the Director, C.F.S.L., Calcutta who has opined that both the phenolphthelein powder and sodium carbonate were detected in the contents of four phials which were sent to them. Further the prosecution has stated that from the above, it is evident that the accused/appellant demanded and accepted illegal gratification from the complainant in the matter of allowing overtime to the complainant and thereby misused his official position as a public servant. 5. It appears that sanction for the prosecution against the accused/appellant was being accorded under the Prevention of Corruption Act (Act-II of 1947) by Sri M.P. Narayanan, Chairman-cum-Managing Director, Coal India Ltd. who was competent to remove the accused/appellant vide sanction order bearing No.CIL:VIG:05215/236:2805 dt. 3/9.01.1989 and subsequently vide order sheet dated 07.02.1989 of the judicial record, a prima facie case was found against the accused under Section 5(2) r/w 5(1)(d) of the Prevention of Corruption Act and accordingly, cognizance was taken on the said date i.e. 07.02.1989, charge was framed to which accused/appellant pleaded not guilty and claimed to be tried. 6. The prosecution has examined altogether 10 witnesses to substantiate the charges and the prosecution witnesses are PW-1 R. M. Krishnan, PW-2 Kedar Nath Pandey (complainant), PW-3 Tushar Kanti Rai, PW-4 R.L. Saha, PW-5 Dhirendra Bihari, PW-6 Narendra Pratap Singh, PW-7 Kamal Prasad, PW-8 Laxmi Narayan Diwakar, PW-9 Lal Mohan Manjhi and PW-10 Jageshwar Prasad Singh. 7. Out of aforesaid 10 witnesses Kedar Nath Pandey, the complainant who was posted as Pay Loader at East Basuria Colliery at the relevant point of time, had levelled allegation against appellant, who was then Assistant Manager in the said department, that he had demanded Rs.100/-per month for providing overtime. Since the complainant was not intending to pay illegal gratification, he informed the C.B.I. after which an inquiry was conducted to verify the truth. On 01.08.1988 an information in writing was given by the complainant after which pre-trap formalities were performed. The complainant was given three G.C. Notes of Rs.50/-each which were treated with phenolphthelein powder with a direction to hand over the same to the appellant on demand. On 01.08.1988 an information in writing was given by the complainant after which pre-trap formalities were performed. The complainant was given three G.C. Notes of Rs.50/-each which were treated with phenolphthelein powder with a direction to hand over the same to the appellant on demand. Thereafter on the next day i.e. on 02.08.1988 the complainant went to the office of appellant and paid said sum of Rs.150/-to which the appellant counted and put it in the back pocket of his trouser. Immediately, after receiving signal the C.B.I. sleuths who were waiting, trapped the complainant and recover the amount and required formalities with regard to seizure etc. were performed. In his cross-examination the complainant has admitted that he was given chargesheet vide memo No.EBC 541/84 dated 9/10.02.1984 for not performing duty in proper way. A suggestion was given to this witness that an occurrence of mar-pit for obtaining O.T. had also taken place in which he was involved and case under Section 107 Cr.P.C. vide M.P. Case No.1285/86 was instituted. He has further stated that Kamla Prasad, an officer of C.B.I. was known and he had accompanied him on the date of incident at 12.00 noon. This witness further admits that on 01.08.1988 he had given information to C.B .I. And beyond that information he did not remember that any other information was ever given. 8. PW-4 R.L. Saha, PW-7 Kamla Prasad, PW-8 Laxmi Narayan Diwakar and PW-9 Lal Mohan Manjhi are the witnesses who have supported the preliminary investigation, pre-trap, trap and post trap formalities. The gist of evidence of these witnesses is that PW-2 Kedar Nath Pandey raised allegation against appellant that he had been demanding Rs.100/-per month for providing overtime. After receiving complaint in writing the matter was verified and pre-trap arrangements were made. On the date of incident after the complainant handed over illegal gratification in terms of Rs.150/-the appellant was apprehended and searched in presence of these witnesses. The said sum of Rs.150/-was recovered from the back pocket of the trouser of the appellant. The hands of the appellant and the pocket of the trouser were deeped into the solution of sodium carbonate and the change colour of solution was accordingly noticed. The formalities of seizure of G.C. note, the solution and other articles were made and those articles were also proved and produced before the Court during evidence. The hands of the appellant and the pocket of the trouser were deeped into the solution of sodium carbonate and the change colour of solution was accordingly noticed. The formalities of seizure of G.C. note, the solution and other articles were made and those articles were also proved and produced before the Court during evidence. PW-1 R.M. Krishnan happens to be a formal witness who has proved the sanction order, PW-3 Tushar Kanti Rai and PW-6 Narendra Prasad Singh are the witnesses in whose presence the quarter allotted to appellant Parmeshwar Jaiswal was searched and inventory list was prepared and he had signed the said inventory list. PW-5 Dhirendra Bihari is also witness to the seizure list. He has said that some documents from the office of P.P. Jaiswal were seized on 02.02.1988 and he had proved his signature on the seizure list. PW-10 Jageshwar Prasad Singh was posted as Assistant Manager at East Basuira Colliery in the year 1988. According to this witness P.P. Jaiswal (appellant), Assistant Manager incharge of the department was authorised to provide overtime to the Pay Loaders, Tippers and other operators. He has proved certain documents indicating as to how the overtime was allotted to the Pay Loaders and Tipper Operators. 9. The argument advanced on behalf of appellant was mainly on three points. At the outset he drew my attention towards exhibit-A which relates to preliminary enquiry report submitted by Kamla Prasad, PW-7. The subject for holding preliminary enquiry was the allegation levelled against appellant that he had been demanding illegal gratification from the employee. It was pointed out that Kamla Prasad PW-7, who is author of this enquiry report, has not disputed the date of enquiry I.e. 29.07.1988. The report was also sent by Kamla Prasad on 29.07.1988. It was vehemently argued that Exhibit-A is sufficient to through out the entire prosecution case and on this score alone the appellant is entitled to be acquitted. The contention made in Exhibit-A indicates that complainant Kedar Nath Pandey had reported about the illegal demand made by the appellant to Kamla Prasad whereafater preliminary enquiry was done. Surprisingly enough, the complainant never says before the Court that he ever lodged any complaint on 28.07.1988 rather specific assertion of the complainant PW-2 is that he lodged complaint only on 01.08.1988 and not before that. Surprisingly enough, the complainant never says before the Court that he ever lodged any complaint on 28.07.1988 rather specific assertion of the complainant PW-2 is that he lodged complaint only on 01.08.1988 and not before that. At one point of time he has stated that on 31.07.1988 he had met with the officials and also with the appellant. Even assuming it to be correct, there was no occasion for Kamla Prasad PW-7 to make any enquiry in this matter on 29.07.1988. Therefore, the malicious prosecution of the appellant is apparent. The next point raised by the appellant is that the complainant was not performing his duty properly for which he was chargesheeted on earlier occasion. Some of the prosecution witnesses have also admitted in their deposition that the complainant was not performing his duty well. Furthermore, no employee can claim overtime as a matter of right. The management under compelling circumstances used to give overtime to the employee. Here in the instant case the complainant has made out a case as if he was entitled for the overtime regularly. The conduct of the complainant thus very clear that he was not performing his regular duty and he was very much interested for overtime to earn more money. When this attitude of the complainant was deprecated, he has lodged this case in collusion with the C.B.I. officials. The third point raised by the appellant is that the prosecution has failed to proved the case beyond shadow of all reasonable doubts. The witnesses who were member in the trap have stated that the appellant after receiving said sum of money from the complainant Pandey, counted the sum and then put it in back pocket of his trouser. It is the normal procedure that a person would count more than one note by using his both hands, but the admitted case of the prosecution is that the left hand of the appellant when deeped into the solution, the colour did not change. The prosecution is also silent on the point of seizure of trouser and how the appellant changed the incriminating trouser in presence of witnesses or from where he brought the next trouser in which he was taken to the office of the C.B.I., is completely silent and no witness has thrown light on this aspect. The prosecution is also silent on the point of seizure of trouser and how the appellant changed the incriminating trouser in presence of witnesses or from where he brought the next trouser in which he was taken to the office of the C.B.I., is completely silent and no witness has thrown light on this aspect. The conversation which had taken place between the complainant and the appellant before transferring the currency was not audible to the trap witnesses. Some of the witnesses have said that the appellant was trapped at the door of the office but some of them have stated that he was apprehended from his office and then he was searched. Likewise, the seizure formalities were performed either in the office of the appellant or in the office of the C.B.I. is also not consistent. 10. Learned counsel appearing for the C.B.I. has submitted that the prosecution has only to prove the pre-trap, trap and post trap formalities which has conclusively been done. The prosecution has proved that illegal gratification was demanded by the appellant and preliminary enquiry was done to perform the allegations levelled by the complainant. Accordingly, the appellant was trapped while he received illegal gratification and the required formalities were properly performed. The prosecution has well proved its case and therefore, the impugned judgment needs no interference. 11. I have gone through the entire case record, the documents marked exhibits and the deposition of witnesses. PW-7 Kamla Prasad has not denied the authenticity of Exhibit-A which is a confidential preliminary enquiry report. It is surprising that without receiving any complaint from PW-2 how this confidential enquiry was done. This PW never says that he every met with PW-7 prior to 31st July, 1988. According to admission of PW-2 the complaint in writing was given by him only on 1st August, 1988. I cannot shut my eyes only because formalities required in a trap case had properly been done and the documents and seizure have properly been proved. The prosecution is unanswerable on the point of Exhibit-A. Therefore, I have left with no option but to give weight to the argument advanced on behalf of appellant that he has been falsely implicated in this case for which a conspiracy was done earlier and complainant Kedar Nath Pandey, who was aggrieved with the administration had helped the C.B.I. sleuths. The prosecution is unanswerable on the point of Exhibit-A. Therefore, I have left with no option but to give weight to the argument advanced on behalf of appellant that he has been falsely implicated in this case for which a conspiracy was done earlier and complainant Kedar Nath Pandey, who was aggrieved with the administration had helped the C.B.I. sleuths. The evidence of PW-10 is very important which indicates that the complainant PW-2 had already been receiving overtime without obliging the appellant. It is not the case of the complainant that he had paid illegal gratification to the appellant earlier to the incident for getting overtime. The trap conducted by the prosecution as it is evident from the evidence on record is also not free from doubt. 12. In view of the discussions, made above and the careful consideration of the evidence available on record, I feel inclined to set aside the impugned judgment of conviction and sentence. Accordingly, this appeal stands allowed. The appellant is discharged from the liability of his bail bonds.