JUDGMENT : A.K. Mishra, J. This appeal by accused is preferred against the judgment dated 22.12.2009 passed by the learned Special Judge(Vigilance), Sambalpur in T.R. Case No.56 of 1996 convicting him U/ss. 7 and 13(2) r/w section 13(1)(d)(i)(ii) of the Prevention of Corruption Act ( to be referred hereinafter as "P.C. Act 1988"). The accused has been sentenced to undergo R.I. for six months and to pay a fine of Rs.1000/- in default to R.I. for one month for the offence U/s. 7 of the P.C. Act and R.I. for one year and to pay a fine of Rs.2000/- in default to R.I. for two months for the offence U/s.13(2) r/w section 13(1) (d)(i)(ii) of P.C. Act. 2. Adumbrated in brief, the accusation leading to the prosecution runs thus:- The accused was serving as a clerk in the vacancy section of District Employment Exchange Office, Rourkela. The informant, P.W.3 had registered his name in the year 1984 in the said Employment Exchange Office. In the year 1993 his name was sponsored for a post of constable in Odisha State Armed Police, he had no physical fitness. On 16.03.1993 he made a representation to Additional District Magistrate, Rourkela to cancel such call letter and to give another call. His written application was forwarded to District Employment officer (DEO) with endorsement of the ADM. The informant produced the said letter before DEO who refused to give him any call as his name was already sponsored for many posts. 2(a). The informant came to know that on payment of bribe in the local employment exchange office, call letters were being issued. In the meantime he ascertained that some posts of Khalasi were laying vacant in the Rourkela Steel Plant. On 30.11.1995 he met the District Employment Officer and approached him for call letter. The DEO instructed him to meet the dealing assistant-accused who was working in the vacancy section. He met. The accused demanded Rs.200/-. The informant expressed his inability. The accused did not accede to his request. The informant paid Rs.50/-. Accused asked him to come with balance 150/- on next day at 12.00 noon. The complainant was not ready to pay bribe. He informed in written to the DSP, Vigilance, Rourkela. 2(b). On receipt of report dated 30.11.1995 at 4.00P.M. the DSP, Vigilance, Rourkela directed the Inspector Sri B.C.Das, P.W.4 to lay a trap. The informant paid Rs.50/-. Accused asked him to come with balance 150/- on next day at 12.00 noon. The complainant was not ready to pay bribe. He informed in written to the DSP, Vigilance, Rourkela. 2(b). On receipt of report dated 30.11.1995 at 4.00P.M. the DSP, Vigilance, Rourkela directed the Inspector Sri B.C.Das, P.W.4 to lay a trap. DSP, Vigilance sent the said report to the S.P., Vigilance, Sambalpur for registration. The said report was registered as an F.I.R. on the next day at 9.30 A.M. 2(c). As directed, Inspector Sri Das arranged a trap, made the requisition for witnesses. On 1.12.995 in the conference hall of Rourkela Vigilance Unit office, the preparation was made. One hundred rupees note and one fifty rupees note smeared with phenolphthalein powder were kept in the shirt pocket of the complainant, P.W.2 kept the number of those notes in a chit, P.W.1 was asked to accompany the informant to the office. The informant was asked to handover the money on demand. The others were instructed to wait outside. The personal search of informant and witnesses were taken and preparation report was also prepared. 2(d). At about 11.40 A.M. the trap team proceeded to the office. The informant and P.W.1, Aruna Kumar Nayak went to the room where the accused used to sit. The accused demanded and the informant paid the money. The accompanied witness P.W.1 gave signal. P.W.2 and P.W.4, Investigating Officer and other raiding party members entered inside. On being challenged by P.W.4, the accused fumbled and admitted to have kept money on the left side chest pocket of his wearing shirt. The money was recovered .The number of notes were tallied. The hand wash of accused and the wash of shirt pocket were taken of which colour turned into pink. The solutions were separately preserved and sealed. The shirt of the accused was seized, subsequently the letter dated 16.03.1993 was seized at 4.00pm from the possession of informant in the said employment office. After completion of investigation charge sheet was submitted and trial was ensued. 3. The plea of defence that on 30.11.1995 informant had come to accused and requested him to issue call letters. The accused did not agree, on next day, i.e., on 1.12.1995 at 11.30 AM the informant came and gave a letter addressed to ADM and requested him to show the same to DEO. 3. The plea of defence that on 30.11.1995 informant had come to accused and requested him to issue call letters. The accused did not agree, on next day, i.e., on 1.12.1995 at 11.30 AM the informant came and gave a letter addressed to ADM and requested him to show the same to DEO. The appellant made him to sit in his room and went to DEO to show the said letter. The District Employment Officer refused to issue any call letter. The appellant returned and handed over the letter of ADM to informant. By then, raiding party members entered and got his hand and shirt pocket washed. As he handled the letter addressed to ADM and kept the same in his shirt pocket while proceeding to DEO earlier, his hand and shirt pocket washed liquid was turned pink. Taking his absence, the informant had kept Rs.150 under his table cloth. The informant showed the same to the vigilance raiding party. On being compelled by vigilance police, the appellant brought out the tainted money and handed over the same to them. He specifically stated that neither he demanded nor received any bribe. 4. Prosecution examined four witnesses, P.W.1 is the witness who accompanied the informant to office room and gave signal. He is the only witness regarding demand and payment of tainted money. P.W.2, another official witness who was waiting outside. P.W.4 is the Investigating Officer who had laid trap. P.W.3 is the informant who has admitted about the trap in the office of accused but resiled to support prosecution on the point of demand and receipt of bribe by accused. Sixteen documents were exhibited including preparation report, FIR, sanction order, chemical examination report and the application addressed to ADM dated 16.3.1993. The brass seal used for laying trap and two currency notes are made as M.O.I , II and III. 4(a). On behalf of defence, the colleague of accused, another junior clerk in the vacancy section of Employment Exchange Office, Rourkela was examined as D.W.1, who supported the defence plea. 4(b). The learned Special Judge disbelieved the informant so also D.W.1 and thereby defence plea was discarded. Relying upon P.W.1, 2 and 4, he held that accused had demanded money and had received the tainted money worth Rs.150/-, M.O.II and III. The credibility of P.W.4 was not doubted by him even though he had arranged the trap. 4(b). The learned Special Judge disbelieved the informant so also D.W.1 and thereby defence plea was discarded. Relying upon P.W.1, 2 and 4, he held that accused had demanded money and had received the tainted money worth Rs.150/-, M.O.II and III. The credibility of P.W.4 was not doubted by him even though he had arranged the trap. Accordingly he held the accused guilty and sentenced him as noted above. 5. Learned counsel for appellant, Mr. R. B. Mishra buttressed the following submissions:- (a) That when informant himself denied to have paid any bribe and colleague of accused whose presence was not doubtful supported him, the prosecution could not be said to have proved the demand of bribe by accused. The support is drawn from a decision B. Jayaraj V. State of A.P., (2014) 13 SCC 55 (b) In absence of examination of any independent witness including District Employment Officer (DEO), the testimony of P.W.1 cannot be relied upon when informant has himself stated that ADM had forwarded his letter on 16.3.1993 and prosecution case rests on the said letter for the purpose of lodging FIR on 30.11.1995 after two years. (c) The trap laying officer should not have investigated the case as the investigation by him with regard to seizure of letter dated 16.03.1993, exhibit 13 creates doubt about his credibility and he could not be examined U/s.161 Cr.P.C. on material points. Reliance is placed in a decision State of Orissa v. Managobinda Sahoo. d, (2009) 43 OCR 141) In view of judgment reported in 2004 Criminal Law Journal 3001 (Bombay High Court) Hanmantappa Murtyappa Vajapure V. State of Maharashtra, the doctrine of triviality of amount should be considered to give benefit of doubt to the appellant. 5(a). Per contra, learned counsel for vigilance Mr. S.K.Das supported the impugned judgment and submitted:- (A) That while appreciating the evidence, the appellate Court should be slow because the trial court had the occasion to see the demeanor of the witnesses and for that he relied upon the decision State of West Bengal V. Kailash Chandra Pandey, (2005) AIR SC 119. (B) The demand and acceptance of illegal gratification when proved by other evidence, the fact that complainant turned hostile cannot be considered to discard the whole prosecution case. (B) The demand and acceptance of illegal gratification when proved by other evidence, the fact that complainant turned hostile cannot be considered to discard the whole prosecution case. For that reliance is placed upon Vinod Kumar V. State of Punjab, (2015) AIR SC 1206 and State of Gujarat v. Navinbhai Chandrakant Joshi etc., (2018) AIR SC 3345 In both the decisions the B. Jayaraj case has been referred to. (C) There is no legal bar for investigation of a case by a member of raiding party and trial is not vitiated on that account as per aforesaid Vinod Kumar Case. 5(b). Learned counsel for Vigilance has relied upon a decision Koli Lakhmanbhai Chanabhai v. State of Gujarat, (2000) AIR SC 210 and T. Shankar Prasad V. State of A.P., (2004) 27 OCR 599 (SC) to contend that the evidence of hostile witness cannot be treated as washed off and he can still be believed in regard to a part of his testimony. With regard to sentence to prevent corruption in the society, learned counsel has relied upon a decision Shanti Lal Meena V. State of NCT of Delhi, C.B.I., (2015) AIR SC 2678 On the point of charge of the above offences and jurisdiction of criminal revision, he has relied upon a decision State of Rajasthan V. Fatehkaran Mehdu, (2017) AIR SC 796. Lastly he relied upon a decision Mukhtiar Singh V. State of Punjab, (2016) 64 OCR 1016 (SC) where demand, acceptance and recovery of tainted currency notes were found to have been fully proved and thereafter conviction was upheld. 6. Before proceeding to the fact of the case the legal position as advanced by learned counsel for both parties citing decisions may be kept in view. The evidence of hostile witness can be relied upon in part. Investigation is not vitiated when Investigating Officer is a member of raiding party. The prejudice to the accused is to be proved. The principle of triviality as stated in Bombay High Court decision in case of Hanmantappa Vijapure V. State sof Maharashtra (supra) is a matter of consideration from case to case and cannot be applied as a straight jacket formula. 6(a). What is required to be proved in this nature of case, has been clearly enunciated in the B. Jayaraj case which has been referred to in subsequent Navinbhai Chandrakant Joshi decision and Vinod Kumar Decision (supra). 6(a). What is required to be proved in this nature of case, has been clearly enunciated in the B. Jayaraj case which has been referred to in subsequent Navinbhai Chandrakant Joshi decision and Vinod Kumar Decision (supra). In B.Jayaraj case their lordships have stated hereunder:- "7. In so far as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma Vs. State of A.P. and C.M. Girish Babu Vs. C.B.I. XXX XXX XXX XXX 9. In so far as the presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Section 13(1)(d)(i)(ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent". 6(b). In the case at hand, the FIR exhibit-4 reveals that informant had made representation before ADM, Rourkela on 16.03.1993 and the ADM, Rourkela had given an endorsement therein forwarding the same to District Employment Officer, Rourkela. The said letter is proved as exhibit-13. It was seized by P.W.4 on 1.12.1995 at 4:00 P.M. on production by informant in the office of District Employment Exchange where trap was laid. Exhibit-1. Preparation report reveals that personal search of complainant was taken up and no such document was recovered from him. The trap was conducted at about 12.35 P.M. as per detection report exhibit-2. It was seized by P.W.4 on 1.12.1995 at 4:00 P.M. on production by informant in the office of District Employment Exchange where trap was laid. Exhibit-1. Preparation report reveals that personal search of complainant was taken up and no such document was recovered from him. The trap was conducted at about 12.35 P.M. as per detection report exhibit-2. One ash gray colour full shirt of accused was seized in the vacancy section on that date at about 1.00 P.M. The tainted money was seized at 12.55 P.M. 6(c). On the above factum of seizure and recovery, the prosecution allegation and defense plea are required to be considered. With regard to the demand and payment of tainted money, the evidence of P.W.1 only is available. Because informant P.W. 3 who accompanied him has turned hostile. P.W.1 has stated that when he entered inside the vacancy section, none was found present and thereafter the accused came, informant identified him, accused enquired from the informant if he had brought the money. Informant stated that he would pay money if call letter was given to him. Accused told him that he would not fly away with money without giving call letter. Thereafter informant gave money to accused who kept the same in his left side shirt pocket. In cross-examination he has admitted that there was no other talk between complainant and accused and accused did not enquire from the complainant about his identity. He denied the suggestion that he and informant had planted the money on the table of the accused in his absence. 6(d). The evidence of P.W.2 and P.W.4 that both of them getting signal from P.W.1 went inside and the accused brought out the tainted G.C. notes from the pocket of his wearing shirt which was seized after getting the number tallied. Both of them stated that the chest pocket of the accused was washed with Sodium Carbonate solution and colour of the solution turned pink. P.W.1 has stated in para-4 that the money produced by the accused was washed in water which turned pink but the same does not get corroboration from P.Ws.2 and 4. Thus the evidence of P.W.1 is only available with regard to demand and receipt of tainted money from informant. P.W.1 has stated in para-4 that the money produced by the accused was washed in water which turned pink but the same does not get corroboration from P.Ws.2 and 4. Thus the evidence of P.W.1 is only available with regard to demand and receipt of tainted money from informant. As against this, the defence plea is that the complainant showed him the letter dated 16.03.1993 and asked him to show the same to District Employment Officer. When on being insisted, he went to the officer's room, the money was kept under the table cloth and subsequently it was detected by raiding party. Informant P.W.3 has admitted that when accused went to the room of the officer, he placed the tainted money under the table cloth of the accused. And then the accused came and handed over his application. It may be stated that the said application dated 16.03.1993 is Exhibit-13 and it was seized by I.O on that date at 4.00 PM. The defence witness D.W. 1 has stated that accused on being challenged denied to have received any money, the complainant pointed out the bribe money kept under the table of the accused. He is the witness who used to sit with the accused in the vacancy section. This part is not disputed in the cross-examination. 7. Thus found, in one hand P.W.1 stated that informant had given money and accused kept the same on his chest pocket of the shirt. On the other hand, the defence pleaded that the money was kept under the table by the informant when accused had gone to show the letter dated 16.03.1993 to the District Employment Officer. To break the ice, the circumstance now centres in and around the letter dated 16.03.1993 Exhibit-13. The date of occurrence was 1.12.1995. The letter of the year 1993 has been mentioned in the FIR. The Investigating Officer has not stated to have verified the same. During personal search prior to trap preparation the said letter was not recovered. But the same letter was seized after raid at 4.00 PM in the employment office. There is no evidence that informant after trap preparation and till the seizure of letter, had been to outside to bring that letter. So fact remains proved that the letter was with informant during trap in the office of District Employment Office. But the same letter was seized after raid at 4.00 PM in the employment office. There is no evidence that informant after trap preparation and till the seizure of letter, had been to outside to bring that letter. So fact remains proved that the letter was with informant during trap in the office of District Employment Office. If that is so, it cannot be understood as to why the defence version, that the said letter was given by informant to accused and he (accused) left the office to show the letter to DEO is to be disbelieved. At this juncture, the non-examination of DEO strikes at the root of the prosecution case. The D.W.1 is an employee who used to sit in the vacancy section where accused was working on the fateful date. D.W.1 cannot be disbelieved because he is examined on behalf of the defence. Most importantly, the shirt of accused which was seized, is not produced before the court for identification. The evidence in entirety creates a doubt as to why the letter dated 16.3.1993 was used after two years to lay a trap and the same was seized after the trap was over. The circumstance presented by P.W.4, Investigating Officer, in seizing the letter dated 16.3.1993 after trap, leaves enough room to suspect that prosecution has not come with the true story. There is long gap between "may be proved" and "will be proved". Suspicion however strong may be cannot take the place of proof. 8. In the case at hand the prosecution wants to disbelieve the hostile witness, P.W.3 and defense witness D.W.1 and to believe P.W.1 with regard to demand of bribe. But if the seizure of letter dated 16.03.1993, Exhibit.13 after the trap from the same office is believed, the evidence of P.W.1 cannot be accepted as trustworthy with regard to demand of bribe by accused. The learned lower court has not approached the importance of this aspect of evidence. The omission to consider this aspect of evidence has created a dent in the prosecution case. The credibility of P.W.1 is not above board, if tested, in the surrounding circumstances led by prosecution centering the letter dated 16.3.1993 and D.W.1. The non examination of District Employment Officer is fatal. The omission to consider this aspect of evidence has created a dent in the prosecution case. The credibility of P.W.1 is not above board, if tested, in the surrounding circumstances led by prosecution centering the letter dated 16.3.1993 and D.W.1. The non examination of District Employment Officer is fatal. Once the evidence of P.W.1 is found not reliable the demand aspect goes back and offence U/ss.7, 13(2) r/w 13 1(d) (i)(ii) cannot be said to have been proved. No presumption U/s. 20 of the P.C. Act can be raised when the foundational facts are not established. 9. Because of the fact that dust of doubt found in the prosecution evidence is not cleared, prosecution cannot be said to have proved its case beyond reasonable doubt. The appellant-accused is entitled to be given benefit of doubt. The judgment of conviction and sentence are to be set aside. In the result, the impugned judgment dated 22.12.2009 passed by the learned Special Judge(Vigilance), Sambalpur in T.R. Case No.56 of 1996 is reversed. The appellant-accused is acquitted and be set at liberty forthwith. The appeal is allowed. L.C.R. be returned to the lower Court.