( 1 ) THIS appeal has been directed against the judgment/order of sentence dated 21-11-1996 rendered by the court of Special Judge, Gurgaon, whereby he convicted and sentenced Ishwar Singh to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs. 1,000/-or in default thereof, to further undergo rigorous imprisonment for a period of 3 months under Section 7 of the Prevention of corruption Act, 1988 (hereinafter referred to as the)and also convicted and sentenced anand Parkash accused to undergo rigorous imprisonment for a period of 2 years and to pay a fine of Rs. l. 000/- or in its default, to further undergo rigorous imprisonment for a period of 3 months under Section 12 read with Section 7 of the.

( 2 ) THE factual matrix is that on 23-11-1993, sube Singh son of Siri Chand, lodged fir in Police Station, State Vigilance Bureau (Haryana), Gurgaon stating that he is a resident of Fairukh Nagar, District Gurgaon and runs a shop of readymade garments. He applied to Gurgaon Primary Co-operative agricultural and Rural Development Bank for a grant of loan of Rs. 30. 000/- which was sanctioned. A cheque of Rs. 15. 000/-was handed over to him by Ishwar Singh, field Officer on 9-10-1993. In the evening on 1-11-1993, Ishwar Singh visited his house and demanded Rs. 1. 500/- as Illegal gratification for releasing the aforesaid cheque. He told that he had already spent the amount and his account will be settled when the next instalment will be paid to him. On 17-11-1993, he along with Azad Singh, with whom he had good relations, visited the bank. He asked Ishwar Singh for release of the cheque of the remaining identical amount. Ishwar Singh completed all the formalities but he kept the cheque with himself and told that Rs. 3. 000/- be paid to him on the next day and then the cheque will be handed over to him. On 18-11-1993, he accompanied by Azad Singh, again visited the bank but Ishwar Singh was not available. Today, he and Azad Singh when visited the bank, Ishwaf Singh, Field Officer and Anand parkash, Manager were found present in the letters cabin. When he asked Ishwar Singh to deliver the cheque, he demanded Rs. 3. 000/ -. He (Sube Singh) did not want to give illegal gratification.

( 3 ) ON the basis of the above statement, the case was registered by DSP Sultan singh. Sube Singh, complainant produced rs. 3. 000/-, out of which 25 currency notes were in the denomination of Rs. 100/- each and one currency note was in the denomination of rs. 500/- which were initialled and seized vide Recovery Memo. Phenolphthalein powder was applied to these currency notes which were handed over to Sube Singh vide Fard Hawalgi. The raiding party was constituted. Azad Singh was deputed as a shadow witness with a direction to give signal when the notes were handed over to the accused. Sube Singh was instructed to hand over these currency notes to Ishwar Singh on demand. On receipt of the appointed signal from Azad Singh, the raiding party entered the office of Manager of the Bank. The accused disclosed their names as Anand parkash and Ishwar Singh. The tainted currency notes were stated to have been kept in the Almirah. On search of the same, the currency notes worth Rs. 3. 000/- were recovered by Khalll Ahmed. Tehsildar, who was also associated with the raiding party. These currency notes were the same which were handed over to Sube Singh. The same were seized vide Recovery Memo attested by the witnesses. A cheque in the sum of Rs. 15. 000/- was recovered from the possession of Ishwar Singh accused. The same was also seized vide Recovery Memo. The hand wash of pink colour of the accused Ishwar Singh as well as Anand Parkash was put into separate bottles, which were seized vide Recovery Memo. Thereafter the hands of complainant sube Singh were also got washed with sodium carbonate water. The water turned pink which was also put into a bottle and taken into possession vide Recovery Memo. The Register was also seized from the drawer of the table of the Manager and taken into possession vide Recovery Memo. The seal, after use, was handed over to Khalil Ahmed. The accused were arrested. On return to the police Station, the case property was deposited with the MHC with seals intact. After completion of investigation, the charge sheet was laid in the Court for trial of the accused. . The accused Ishwar Singh was charged under section 7 of thewhereas his co-accused anand Parkash was charged under section 12 of theto which they did not plead guilty and claimed trial.

( 4 ) TO bring home guilt against the accused, the prosecution examined Azad Singh cashier, PW-1, Sube Singh complainant, pw-2. Azad Singh shadow witness, PW-3, kuldip Singh Clerk, PW-4, Khalil Ahmed tehsildar, PW-5, Sultan Singh DSP, PW-6, mool Chand Punia Draftsman, PW-7 and closed its evidence by tendering the affidavits of Krishan Kumar, Jagphool Singh and constable Rajbir Singh, Ex. PA, PB and PC respectively and the Forensic Science laboratorys Report, Ex. PV.

( 5 ) WHEN examined under Section 313 of criminal Procedure Code, both the accused denied all the incriminating circumstances appearing in the prosecution evidence against them.

( 6 ) ACCUSED Ishwar Singh has come up with the plea that Azad Singh (referring to pw-3, shadow witness) and his son had obtained loan from the bank and they were defaulters in making the payment of instalment. Azad Singh visited the bank and met sube Singh in the canteen. Sube Singh gave rs. 3. 000/- to Azad Singh to hand over to accused Ishwar Singh on account of outstanding instalment and that he being the field Officer, had nothing to do with the payment or making of cheque. They both pleaded innocence. Without adducing any evidence, they closed their defence.

( 7 ) MR. R. S. Rai, Senior Advocate, appearing on behalf of the appellants, valiantly urged that as would be apparent from the receipt, Ex. PT/3 dated 17-11-1993, the complainant Sube Singh had already received rs. 15. 000/- through a cheque and that being so, there was no occasion for the accused Ishwar Singh, Field Officer to make a demand of illegal gratification. To buttress this stance, he has sought to place reliance upon the observations made in Re : Dalip singh v. State of Punjab, 1988 (1) Recent criminal Reports (Criminal) 123. He further agitated at the bar that as is borne out from the evidence, Azad Singh, PW-3, shadow witness has been declared hostile by the prosecution as he did not support the prosecution case and, thus, there was no independent corroboration to the statement of sube Singh, who is normally treated as an accomplice as ruled in Re : Ram Jaspal kanungo v. State of Punjab, 1991 (2)Recent Criminal Reports (Criminal) 547. Elaborating his argument further, he puts that a glance through the statement of the prosecution witnesses would reveal that the same are replete with contradictions and, thus, the learned trial Court has gravely erred in law in coming to the conclusion that the discrepancies pointed out do not go to the root of the case.

( 8 ) TO overcome these submissions, Mr. A. K. Rathee, learned Assistant Advocate general, Haryana, appearing on behalf of the State, pressed into service that the evidence trickled from the mouth of Khalil ahmed Tehsildar, PW-5, a disinterested witness, lends corroboration to the testimony of Sube Singh, PW and that being so, no fault can be found with the conviction recorded by the learned trial Court.

( 9 ) ON a careful consideration of the evidence on record, it transpires that the coptention raised by mr. Rathee is unsustainable for the reasons to be recorded hereinafter.

( 10 ) UNDENIABLY, Ex. PT/3 is a Receipt which is purported to have been issued by sube Singh, complainant in favour of the concerned Central Co-operative Bank Limited in token of his having received a cheque worth Rs. 15. 000/- from the Manager of the bank on 17-11-1993. As per this Receipt, the cheque Exh. P-27 was received by Sube singh on 17-11-1993 whereas according to the prosecution case, the raid was qonducted on 23-11-1993. After the delivery of the cheque, nothing remained to be done by either of the appellants for which Sube Singh would have given bribe either to Ishwar singh or Anand Parkash. The bribe, if any, was to be paid, it must have been before the delivery of the cheque to the complainant sube Singh. In this view of the matter, my view stands reinforced by referring to the observations made in Dalip Singh (supra ).

( 11 ) THERE is no gain saying the fact that azad Singh, PW-3, shadow witness did not lend support to the prosecution version. He has stated that Sube Singh never told me that the accused present in the Court had demanded bribe from him for releasing second instalment of loan of Rs. 15. 000/- that i never accompanied Sube Singh to the vigilance Office; that after the raid, I was called in the Police Station and in my presence nothing was recovered from the possession of the accused. When cross-examined by the learned Public Prosecutor for the State, he testified that I am aware that the loan was sanctioned in favour of Sube Singh for readymade garments ami cheque was ready for Rs. 15. 000/- on 17-11-1993 and that the cheque was handed over to Sube Singh on the same day. A meticulous perusal of ex. PT/3 would bring out that Receipt, Ex. PT/3 purported to bear the signatures of this witness as an attesting witness. The date under this signatures is also 17-11-1993 obviously, this cross-examination accords with Receipt, Ex. PT/3. To put it differently, this oral evidence being in consonance with the Receipt, assumes greater importance. When this witness was under cross-examination by the learned Public Prosecutor, no material favourable to the prosecution could be wrenched out. When cross-examined by the learned defence counsel, this witness admitted in categoric terms that he and his son had obtained a loan from the bank and they were defaulters in making the instalment and that on 23-11-1993, he visited the bank and met Sube Singh in the canteen and that Sube Singh gave him Rs. 3,000/-in the canteen and he handed over those rs. 3. 000/- to Ishwar Singh accused on account of outstanding instalment. This evidence fits in with the plea adopted by Ishwar singh appellant in his statutory statement.

( 12 ) IN re : State of pihar v. Basawan singh, AIR 1958 SC 500 [LQ/SC/1958/27] : (1958 Cri LJ 976), it was held as under (Para 15) :-The correct rule is this : if any of the witnesses are accomplices who are particeps crimlnis in respect of the actual crime charges, their evidence must be treated as the evidence of accomplices is treated; if they are not accomplices but are partisan or interested witnesses, who are concerned in the success of the trap, their evidence must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case, and in a proper case, the Court may even look for independent corroboration before convicting the accused person. If a Magistrate puts himself in the position of a partisan or interested witness, he cannot claim any higher status and must be treated as any other interested witness. "

( 13 ) IN Ram Jaspal Kanungo (supra) also, it has been held that giver of bribe is normally to be treated as an accomplice. In view of the afore-quoted observations, the bribe giver is an accomplice. The evidence of the witnesses who are accomplices must be treated as the evidence of accomplice is treated and further the evidence of partisan or interested witnesses who are concerned in the success of the trap, must be tested in the same way as other interested evidence is tested by the application of diverse considerations which must vary from case to case and in a proper case, the Court may even look for independent corroboration before recording conviction.

( 14 ) REVERTING back to the facts of the case in hand as noted supra, Azad Singh, pw-3 has been declared hostile. On his cross-examination by the learned Public prosecutor, he. did not budge even an inch from his firm stand, rather on being cross-examined by the learned defence counsel, he fortified the plea taken up by the appellant Ishwar Singh. Thus, we are left with the statement of Sube Singh, complainant. His evidence is to be treated as the evidence of an accomplice is treated. The rest of the witnesses are official witnesses. The evidence of Khalil Ahmed, PW being an Officer has to be tested in the same way as other interested or partisan witnesses is tested.

( 15 ) AS per the statement of Sube Singh, pw-3, the raid was conducted on 18-11-1993 whereas in the terms of the deposition of Khalil Ahmed, pw-5 as well as Sultan Singh DSP, PW-6, the raid was conducted on 23-11 -1993. Sube Singh was not got declared hostile when he stated so. In view of the provisions as enshrined in Section 154 of the Evidence Act, coupled with section 162 of the Criminal Procedure Code, the leading question Could be put to this witness about the date of raid. So, there being no such attempt on the part of the prosecution, 18-11-1993 is to be treated as the date of raid in appreciating the evidence of this witnesses. If it be taken so, the version given out by Khalil Ahmed as well as Sultan Singh is falsified. To add further to it, it is in the evidence of Sube Singh, PW that Tehsildar also noted the numbers of the notes and handed over the same to him whereas according to Khalil Ahmed Tehsildar, PW, the said notes were given to the complainant by the DSP after noting down the number in his presence. Palpably both these P. Ws. are discrepant and contradict each other on very material aspect which too strike at the root of the prosecution. On appraisal of the evidence of Khalil Ahmed as well as Sultan singh, P. Ws. the recovery of alleged currency notes was effected from the almirah. It is in the deposition of Khalil Ahmed, PW that the accused denied having received any money and that they were personally searched but nothing was recovered from their possession. It is in the evidence of Sube singh, PW that I pointed out towards the almirah where the money was kept by the accused and that Tehsildar had taken the key from the Manager and opened the almirah and recovered Rs. 3,000/- Khalil ahmed, PW is absolutely silent about the taking of the key from the Manager (Anand Parkash-appellant ). He has merely stated that I personally searched the almirah lying in the office and Rs. 3,000/- were found lying there. He has no where stated that at the pointing out towards the almirah by sube Singh. PW, he opened and searched the almirah. It is explicit from this evidence that either Sube Singh. PW has materially improved upon the above facts or Khalil ahmed, PW omitted the same while deposing in the Court. In such circumstances, it would be quite unsafe to uphold conviction of the appellants.

( 16 ) AS ruled by the Apex Court in Re : meena (Smt.) wife of Balwant Hemke v. State of Maharashtra, 2000 (5) SCC 21 [LQ/SC/2000/730] : (2000 Cri LJ 2273), mere recovery of the currency notes and positive result of the phenolphthalein test is not enough to establish the guilt of the appellant on the basis of perfunctory nature of materials and prevaricating type of evidence.

( 17 ) COMING to the "facts of the present case, the statement of Sube Singh, PW (complainant)does not find corroboration from an independent source on the record as Azad singh, PW-3 did not lean in favour of the prosecution and the remaining witnesses, namely, Khalil Ahmed and Sultan Singh are official witnesses. In view of the above observations extracted from the case of Meena (Smt.) wife qf Balwant Hemka (supra), the positive result of phenolphthalein test is not enough to establish the guilt of the appellants. The treated currency notes were allegedly recovered from the almirah and not from the personal search of either of the appellants.

( 18 ) IN case Satpal Singh (died) through l. Rs. v. State of Punjab, 2004 (1) Recent criminal Reports (Criminal) 830, recovery of bribe money was proved. The accused was working as Patwari. He had demanded Rs. 200/- from the complainant for supply of copies of Jamabandi. A trap was laid and rs. 200/- were recovered from the accused. One of the PW was given up as won over. The shadow witness had stated that no de-mand was made in his presence. This Court was pleased to hold that the essential ingredient of section 13 (2) of the Prevention of Corruption Act, 1988, was missing. If the matter is viewed in the background of these observations, the essential ingredient of section 13 (2) ibid is missing herein as Azad singh, PW-3*has stated that he never accompanied Sube Singh to the Vigilance Office and that in his presence nothing was recovered from the possession of the accused and th^t after the raid, he was called in the police6tation. Ostensibly, the ingredient of demand of bribe by the appellants from Sube singh, complainant is missing in this statement of Azad Singh, PW-3.

( 19 ) IN Re : R. V. Subba Rao v. State represented by inspector of Police, Anti Corruption Bureau, Kakinada Range, 2005 (4)Recent Criminal Reports (Criminal) 716. there was no witness to the demand of bribe except the complainant. It was held that in case of bribery, mere recovery of amount from the accused is not sufficient for conviction when the substantive evidence is not reliable.

( 20 ) IN Re : Pritam Singh v. State of haryana, 1992 (3) Recent Criminal Reports (Criminal) 139 also, there was no evidence of shadow witness that the accused had made a demand. This Court was pleased to observe that the complainant was not truthful.

( 21 ) IN Banshi Lal Yadav v. State of Bihar, air 1981 SC 1235 [LQ/SC/1981/161] : (1981 Cri LJ 741 ). in the context of Section 4 (1) of the Prevention of Corruption Act, 1947, it was held as under (para 5) :-"before presumption can be raised, the burden is on the prosecution to prove that the accused has accepted or obtained, or has agreed to accept or attempted to obtain, for himself any gratification other than legal remuneration etc. If the accused when examined under Section 313 of the Code of criminal Procedure with reference to the circumstances appearing against him in evidence, only stated that currency notes were thrust in his pocket, that statement by itself without anything more is not sufficient to satisfy the necessary ingredients of section 4 (1) that accused accepted or obtained or has agreed to accept or attempted to obtain, any gratification other than legal remuneration so as to be able to raise the presumption. Acceptance or obtaining, or agreeing to accept oh attempting to obtain, is a voluntary act. In the statement of the accused, this element of voluntary acceptance is missing. Therefore, the statement of the accused by itself in the facts and circumstances of this case and especially the language used cannot provide the necessary factual basis or fact situation which must exist before presumption can be raised. In fact accused denied having accepted bribe and stated that he was the victim of malevolent act of Naushad in thrusting marked currency notes in his pocket. This statement will not show acceptance of illegal gratification and the High Court was in error in rais-ing the presumption under Section 4. "

( 22 ) IN the ultimate analysis, neither the demand nor acceptance of the currency notes, Ex. P-1 to Ex. P-26 by appellants from sube Singh, complainant, is established. Sequelly, this appeal succeeds and is accepted. The judgment/order of sentence passed by the learned Special Judge, gurgaon, is set aside. The appellants are acquitted of the charged offences. Appeal allowed.