M.L Singhal, J.:— This appeal is directed against the judgment and order passed by the Special Judge, Bhiwani dated 9.6.87 whereby he convicted and sentenced Dharam Pal (appellant herein) to undergo simple imprisonment for 62 days and to pay fine of Rs. 100/- under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and to further undergo simple imprisonment for 62 days under Section 161 IPC. He ordered both the substantive sentences to run concurrently. He ordered the period of detention suffered by him as an undertrial to be set off towards these substantive sentences.

Page: 2962. Facts of the case briefly stated are that in the year 1985, construction of the school building was going on in village Mundal Khurd. On 17.9.85, resolution was passed by the gram panchayat of village Mundal Khurd for withdrawal of a sum of Rs. 5,000/- by the Panchayat from the bank. On 17.9.85, cheque number was not mentioned in the resolution. On 21.9.85, Secretary of the gram panchayat mentioned cheque number in the resolution. On 21.9.85, Nihal Singh, Sarpanch of the gram panchayat of village Mundal Khurd went to the office of Block Development and Panchayat Officer (in short BDPO), Block, Bawani Khera Bhiwani. BDPO was not available there. He again went to the office of BDPO on 26.9.85 when BDPO met him. Dharam Pal appellant was BDPO, Bawani Khera during those days. On 26.9.85, some one was sitting with the BDPO. BDPO signed that cheque on 26.9.85, Nihal Singh returned to his village on 27.9.85, Dharam Pal went to village Mundal Khurd in a Matador. He alighted from that Matador in front of the shop of one Suraj Bhan. Nihal Singh also went there. Nihal Singh called Harke Ram Panch and Hari Ram Sarpanch respectively of village Mundal Kalan informing them that the new BDPO had come to village Mundal Khurd. Nihal Singh, Harke Ram and Hari Ram took the appellant to the ‘Nauhra’ of Nihal Singh, PW. Appellant demanded Rs. 500/- from Nihal Singh with regard, to the cheque which he had signed on 26.9.85 at Bawani Khera. He put forth demand for this sum of Rs. 500/- being 10% of the amount of the cheque. Nihal Singh did not utter any word in regard to this demand being put forth by him. On 22.9.85, another cheque had been issued by the panchayat for Rs. 5000/- on the basis of resolution.

3. Nihal Singh requested him to sign that cheque also. Dharam Pal refused to affix his signatures on that cheque saying that he should be paid Rs. 500/- as 10% of the amount of the previous cheque which he had signed. If he meant any cheque to be signed by him, he should pay him at the rate of 10% of the amount of the cheque. He asked Nihal Singh to show him the cash book. He accordingly showed the cash book to Dharam Pal. Some writing was made by Dharam Pal in the cash book and it was signed by him. He visited the school building on 27.9.85 Nihal Singh requested him to sign the cheque because he had to pay wages to the labourers. Dharam Pal told him to come to village Bawani Khera with the necessary records of the panchayat. On 27.9.85, Dharam Pal went to village Mundal Kalan along with Hari Ram Sarpanch and Harke Ram Panch. Nihal Singh also went to village Mundal Kalan. He again requested Dharam Pal to sign the cheque for Rs. 5,000/-. Dharam Pal told him that he would go back to Bawani Khera after visiting certain villages and that he (Nihal Singh) should meet him at Bawani Khera. Nihal Singh went to village Bawani Khera on 27.9.85 and met him in his office and told him that he had brought the proceedings and that he should sign the cheque. From there, Nihal Singh and Dharam Pal went to the kothi of Dharam Pal. Dharam Pal demanded Rs. 500/- from him with regard to the earlier cheque saying that he would sign the other cheque only if a sum of Rs. 500/- was paid to him. Dharam Pal told Nihal Singh that he would go on signing the cheques if amount @ 10% of the amount of cheque was paid to him. Nihal Singh went to village Mundal Khurd. At the bus stand of village Mundal Khurd, Hari Ram Sarpanch of village Mundal Kalan met him. Nihal Singh narrated the entire story to Hari Ram Sarpanch of village Mundal Kalan that Dharam Pal was demanding money @ 10% of the amount to be withdrawn from the bank and also that Dharam Pal was a stumbling block in the withdrawal of the amount from the bank and the construction of the school building was becoming difficult. On 30.9.85, Nihal Singh met Shri Sushil Kumar, IAS Sub Divisional Magistrate, Bhiwani and showed him the cheque dated 22.9.85 He wrote something on the cheque directing the BDPO to affix his signatures thereon. Nihai Singh met Dharam Pal on 3.10.85 and the cheque was signed by him saying that he had got the cheque signed from him by obtaining orders from the SDM, Bhiwani, and how long it would be possible for him to obtain such orders from SDM and he would sign the cheques only if 10% of the amount of cheque was paid to him. On 7.10.85, Nihal Singh met SDM, Bhiwani and produced affidavit Ex.PC before him and told him that Dharam Pal was demanding illegal gratification from him. SDM called Shri Daya Singh, DSP, Bhiwani who came there along with Shri Rajbir Singh, District Inspector of Police. There was some talk amongst SDM, Biwani, and DSP, Bhiwani.

4. Nihal Singh was asked to come to village Bawani Khera on 8.10.85 at 10 AM. On 8.10.85, he went to the office of BDPO at about 9.30 a.m Hawa Singh met him there. Nihal Singh and Hawa Singh went to Bawani Khera Rest House. SDM, DSP and District Inspector of Police, Bhiwani came in the rest house Bawani Khera. Nihal Singh handed over affidavit Page: 297Ex.PC to SDM who passed it on to the DSP. Nihal Singh gave five currency notes worth Rs. 500/- to Shri Daya Singh, DSP who prepared memo Ex.PE which was attested by the witnesses. DSP Daya Singh searched the person of Nihal Singh and prepared memo Ex.PF in this behalf. These currency notes were initialled by DSP. He handed over the said currency notes to Nihal Singh vide memo Ex. PG which was attested by him (Nihal Singh). He was directed to hand over these currency notes to the BDPO (appellant-Dharam Pal) in his office but only on demand by him by way of illegal gratification. He deputed Hawa Singh PW to accompany Nihal Singh PW and to act as shadow witness and overhear the conversation that took place between Nihal Singh and Dharam Pal and witness the passing on of the money by Nihal Singh to the accused and raise signal by touching his right ear with his right hand as soon as the accused had accepted the money. DSP put endorsement Ex.PC/2 on affidavit Ex.PC and sent it to PS Bawani Khera for registration of the case on the basis of which formal FIR Ex.PC/1 was registered.

5. Nihal Singh and Hawa Singh left the rest house for the office of the accused. They came to the office of the accused. Rest of the members of the raiding party remained behind at some distance. Nihal Singh PW went inside the office of the accused. Accused was available there. Hawa Singh stood in the verandah outside the office of the accused. Currency notes were handed over by Nihal Singh to the accused as demanded by him saying that the amount of Rs. 500/- was being given to him as 10% of the amount of the cheque and that the accused kept the money with him and told him that he would have no obstacle in his way if the amount continued to be paid to him like this. Accused put currency notes in the pocket of his bushirt. On receipt of the signal raised by Hawa Singh PW, Shri Sushil Kumar, SDM, Daya Singh, DSP and Rajbir Singh, District Inspector of Police and Asha Nand reached the spot along with Hawa Singh PW. At the sight of the raiding party the accused stood up. Daya Singh disclosed his identity to the accused and told him the purpose of his visit. He further told him that he wanted to take his personal search. Shri Daya Singh further told him that before he proceeded to effect his search, he could effect his search. Accused declined to search the person of Daya Singh. Daya Singh effected the personal search of the accused and recovered 6 currency notes of the denomination of Rs. 100/- each from the left pocket of the bushirt worn by him. He compared the numbers of the 5 currency notes with the numbers of the 5 currency notes with the numbers entered in memo Ex.PH and the numbers tallied. Currency notes are Ex.P2 to P6. Sixth currency note recovered from the possession of the accused is Ex.P7 All these currency notes were put in envelope Ex.P1 which was sealed with seal bearing impression “RK”. Envelope Ex.P1 was taken into possession vide memo Ex.PK Bushirt was also made into a sealed parcel sealed with seal bearing impression “RK” and taken into possession vide memo Ex.PJ Personal search of the accused and Nihal Singh PW was carried out vide memos Ex.PL and PK attested by the PWs. Copies of the resolutions passed by the panchayat were taken into possession vide memo Ex.PT from Ram Phal Punia, Manager Kshetriya Bank, Mundal. After investigation, accused was challaned under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and Section 161 IPC.

6. Accused was charged under section 5(1)(d) read with section 5(2) of the Prevention of Corruption Act, 1947 and Section 161 IPC by Special Judge, Bhiwani vide order dated 21.8.86 Accused pleaded not guilty to the charge and claimed trial.

7. With a view to bring home to the accused the charge levelled against him, the prosecution examined Ram Mehar Singh PW1, Mohan Lal PW2, SI Heera Singh PW3, Dharam Pal Patwari PW4, Nihal Singh PW5, DSP Kirpal Singh PW6, Ram Phal Punia, Manager, HKGB Mundal PW7, Hari Ram PW8, Darshan Singh PW9, Hawa Singh PW10, Shri Sushil Kumar IAS PW11, Shri Roshan Lal PW12 and Shri Daya Singh, DSP PW13. Asha Nand PW was given up as won over by the accused.

8. Accused when examined under Section 313 Cr.P.C denied the imputations appearing in prosecution evidence against him and stated that it is a false case. He was posted as BDPO, Bawani Khera on 19.9.85 Letter was received from the Executive Engineer PW Circle, Hissar addressed to the BDPO dated 18.7.95 Ex.DD He was told that Sarpanch of village Mundal Khurd was not complying with the said letter. Matter was discussed in the monthly meeting of the block on 25.9.85 and on 27.9.85 he visited the spot to make physical verification of school building in village Mundal Khurd. After seeing the school building, he became suspicious. He asked Nihal Singh to produce all the records relating to construction Page: 298came suspicious. He asked Nihal Singh to produce all the records relating to construction in view of the letter of the Executive Engineer. Nihal Singh did not produce any record except cash book which he signed. His suspicion became stronger and he asked Nihal Singh, PW to show him the records failing which further payment would be stopped. On 3.10.1985, Nihal Singh came to him with a resolution of the panchayat in the sum of Rs. 5000/- regarding withdrawal of the said amount on which S.D.M, Bhiwani had made an endorsement under his signatures, for necessary action and he signed the cheque. He asked Nihal Singh to submit the accounts regarding construction and also to pay the panchayat samiti the amount outstanding against the panchayat. On 4.10.85, letter was written by him to Nihal Singh PW contemplating penal action against him. Apprehensive of penal action against him, he manipulated with Daya Singh and got him falsely implicated. On 8.10.85 at about 9 a.m Nihal Singh came to his office and requested him to allow him to make payment of the amount of Haryana Sanwad newspaper to the tune of Rs. 600/- saying that the Accountant of the Block was not present in his office. He declined to accept that amount saying that it was part payment. Amount was still with Nihal Singh PW that the police party flung in. Daya Singh, DSP took the amount from Nihal Singh despite protest. He was arrested and the amount was foisted on him. In his defence, he examined Prithipal Singh, Clerk, Panchayati Raj Hissar Circle DW1 and Shri Prabhu Dayal Sharma, Accountant office of BDPO, Bawani Khera DW. 2. At the conclusion of the trial, Special Judge, Bhiwani held the charge proved against the accused. He accordingly convicted and sentenced him thereunder as aforesaid.

9. Aggrieved from this conviction and sentence recorded on 9.6.87 by Special Judge, Bhiwani against Dharam Pal, he has come up in appeal to this court.

10. Nihal Singh PW5 is the alleged giver of bribe to the accused. Testimony of Nihal Singh is thus in the nature of the testimony of an accomplice. Testimony of accomplice should be corroborated by some independent evidence before the same is accepted. Nihal Singh stated that some shops were got constructed by the panchayat of village Mundal Khurd. On 17.9.85, a resolution was passed to withdraw a sum of Rs. 5,000/- by the panchayat from the bank. On that day, cheque number was not given in the resolution. On 21.9.85 cheque number was given by the Secretary. On 21.9.85, he went to the office of BDPO, Bawani Khera. Accused was BDPO, Bawani Khera during those days. He was not available in his office. On 26.9.85, he again went to the office of BDPO, Bawani Khera. BDPO met him. BDPO (accused) affixed his signatures on the cheque. He then came back to village Mundal Khurd. Accused came to village Mundal Khurd. Matador was parked in front of the shop of Surja. Hari Ram Sarpanch and Karke Ram Panch respectively of village Mundal Kalan were called by him informing them that the new BDPO had come to village Mundal Khurd. All of them accompanied by the accused went to his Nauhra and had talk with the accused who demanded Rs. 500/- from him with regard to the cheque which had been signed by him at Bawani Khera on 26.9.85 He demanded the amount of Rs. 500/- as 10% of the amount of the cheque. Nihal Singh PW5 did not utter any word to this demand of the accused. On 22.9.85 another cheque was issued by their panchayat for Rs. 5,000/- on the basis of resolution. He asked the accused to affix his signatures on that cheque. He refused to do so saying that he should pay the amount of Rs. 500/- regarding the previous cheque. Accused asked him to show him cash book. He showed the cash book to the accused accordingly. Some writing was made by the accused in the cash book. He requested him to sign the cheque because he had to pay the wages to the labourers. Accused told him to come to Bawani Khera alongwith the proceedings. Accused went to village Mundal Kalan along with Hari Ram Sarpanch and Harke Ram Panch. Nihal Singh PW also went to Mundal Kalan later on, on a motor cycle and asked the accused as to when he would sign the cheque. Accused told him that he should contact him at Bawani Khera after some time as he had to visit certain other villages. Nihal Singh reached Bawani Khera and met the accused in his office and requested him to sign the cheque. He showed him the proceedings. Accused told him that he would not do so in that manner and asked him to accompany him to his house. He went to his house along with the accused. There also accused demanded Rs. 500/- from him with regard to the earlier cheque and reiterated that he would sign this cheque after the amount of Rs. 500/- was paid to him. He told him that he would charge @ 10% of the amount of the cheque and if the amount at this rate was paid to him, he would not sign the cheques. There is corroborative evidence to support the demand made by the accused for ilduced. Page: 299It would bear repetition that in cases of illegal gratification, there is always demand first for illegal gratification and then acceptance of illegal gratification in reiteration of that demand. There is thus important link missing in this case so far as the chain of the proof of the acceptance of illegal gratification by the accused is concerned. Mere acceptance of GC notes without any proof of demand for illegal gratification is not material. Mere recovery of money is not sufficient for conviction.

11. Nihal Singh PW5 stated that on 30.9.85, he met SDM, Bhiwani. He took the cheque dated 22.9.85 with him. SDM met him. SDM ordered on the said cheque to the accused that he should sign the cheque. He then went to the accused who met him and the cheque was signed by him. Accused told him that this time he had been able to get the cheque signed from him by duress and how long he would manage to procure the orders of SDM in his name for signing the cheque and it would be better if he agreed to pay him @ 10% of the amount per cheque and he would go on signing the cheques without any hesitation or prevarication. On 7.10.85, he met SDM, Bhiwani with an affidavit Ex.PC In affidavit Ex.PC he narrated the entire sequence of events. On 8.10.85 as arranged on 7.10.85, trap was organised. Nihal Singh PW5, Hawa Singh PW10, Shri Sushil Kumar, SDM, Bhiwani PW11, Daya Singh DSP PW13 are all members of the trap. Hawa Singh PW10 is shadow witness. He has not supported the prosecution so far as the alleged demand of bribe by the accused is concerned. He stated that some talk regarding the panchayat record was going on between the BDPO and Nihal Singh and this was the only talk which was over-heard by him. He saw the BDPO (accused) putting his hands in his pocket. Hawa Singh PW10 who was shadow witness has not thus supported the prosecution case. He has not stated that the accused reiterated his demand for Rs. 500/- as illegal gratification for signing the cheque. He has not stated that the PW5, Nihal Singh gave him Rs. 500/- by way of bribe. He has of course supported the prosecution so far as the recovery of 5 currency notes each of the denomination of Rs. 100/- is concerned which had been handed over to Nihal Singh PW by the DSP in the presence of Hawa Singh etc. at the time of organising the trap. When there is no independent corroboration to the deposition of the complainant and the shadow witness to the recovery of bribe money from the accused, the prosecution case gets infirm and truncated. Independent corroboration of the evidence of the accomplice and the shadow witness is normally sought for, if not as a matter of law, then at least as a matter of prudence. In Surjit Singh v. State of Punjab, 1997 (1) RCR 621, it was observed that in a case like this to bring home the guilt to the accused, it has to be established by the prosecution that the accused had demanded the bribe from the complainant and had accepted the same in pursuance of the demand. To prove these allegations merely the statement of the complainant or the trap witnesses cannot be relied upon without independent corroboration. In Darshan Lal v. Delhi Administration , 1974 (2) CLR 611 the Hon'ble Supreme Court held that trap witnesses in a case under section 5(2) of the Prevention of Corruption Act being concerned in the success of the trap, the court should require independent corroboration of their statements before convicting the accused. The same view was reiterated in Prem Kumar v. State of Punjab, 1976 (3) CLR 366 and Jagjit Singh v. State of Punjab, 1980 CLR 93. It was held in these cases that no implicit reliance can be placed on the testimony of trap witnesses in the absence of independent corroboration because trap witnesses are interested and partisan witnesses and on that account, they spring from tainted source. Need for seeking independent corroboration to the testimony of the complainant and shadow witnesses was also emphasised in and Dalip Singh v. State of Punjab, 1988 (1) RCR 125. It has been held more than once by the Hon'ble Supreme Court that the giver of the bribe is normally to be treated as an accomplice and before recording conviction of the delinquent Government servant, independent corroboration to the testimony all the accomplices i.e the complainant and shadow witnesses is normally sought for, if not as a measure of law just atleast as a matter of prudence. In this case, Hari Ram Sarpanch and Harke Ram Sarpanch could have provided corroboration to the demand alleged to have been made by the accused for bribe. Corroboration could have been provided by Hawa Singh PW to the reiteration of demand for bribe and its acceptance from Nihal Singh PW in his presence. One of the main pillars of the prosecu on has stumbled. One of the main pillars of the prosecution having stumbled, the prosecution case has become truncated.

12. In Mahinder Singh v. State of Punjab, 1994 (2) RCR 63, it was held that where there is no satisfactory evidence as to what conversation took place between the giver of the bribe money and the accused when money was passed on to him and the witness also did not de-money Page: 300and the accused when money was passed on to him and the witness also did not depose that the accused had demanded money, the prosecution case becomes doubtful.

13. In Ram Prakash Arora v. State of Punjab, 1972 Crl LJ (sic), it was held that evidence of interested and partisan witnesses who are concerned in the success of the trap must be tested in the same way as that of any other interested witness in a proper case, the court may look for independent corroboration before convicting the accused person.

14. It is thus patent that in this case, there is no corroboration to the statement of trap witnesses by independent evidence. There is no corroboration to the alleged demand for illegal gratification made by the accused upon Nihal Singh PW. There is no corroboration to the reiteration of that demand by him at the time when he allegedly accepted the bribe money.

15. Credentials of Nihal Singh PW are not above board. He had been called upon to submit the accounts of construction to the BDPO which he did not do.

16. In this case, phenolphthalein powder was not used. In Raghbir Singh v. State of Punjab, 1976 Cr. LJ 172, their Lordships of the Hon'ble Supreme Court observed that where trap is laid for the public servant, it is desirable that the marked currency notes, which are used for the purpose of trap, are treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical examination and the court does not have to depend on oral evidence which is some times of a dubious character for the purpose of deciding the fate of public servant. Similar were the observations of the Hon'ble Supreme Court in Khilli Ram v. State Of Rajasthan., 1985 Crl. LJ 504.

17. In this case, the defence version appears to fit in and is probablised. Letter written by the Executive Engineer Panchayati Raj PW Circle, Hissar and addressed to the BDPO, Bawani Khera dated 18.7.85 was produced before the appellant and he was told that Sarpanch of village Mundal Khud was not making compliance of the said letter and the letter was also discussed in the monthly meeting of the Block on 25.9.85 On 27.9.85, he inspected the spot to conduct physical verifications of the building at village Mundal Khurd, in view of the physical situation at the spot and the actual construction of the building, he became suspicious and he called the Sarpanch in the school at Mundal Khurd and asked him to produce all the record regarding the construction as asked for in the letter of the Executive Engineer. Nihal Singh PW did not produce any record except the cash book which he signed and thereby his suspicion became still stronger. He then told Nihal Singh to show him the record and in case he did not do so, he would stop further payment. On 3.10.85, Nihal Singh came to him with resolution of the panchayat in the sum of Rs. 5,000/- on which SDM, Bhiwani had written for necessary action. He signed the resolution but again asked Nihal Singh to submit the accounts regarding the construction and also to pay the panchayat samiti the amount outstanding against him since long. He wrote letter to him on 4.10.85 in this respect contemplating penal action against him. Nihal Singh apprehending action against him connived with DSP Daya Singh and got him framed up in this case. On 8.10.85 at about 10 a.m, Nihal Singh came to his office and started requesting him to allow him some time for producing the panchayat records about the construction and further wanted some time also to make payment of the panchayat samiti dues against him. He requested him to allow him to make payment of the Haryana Sanwad newspaper to the tune of Rs. 600/- and offered that amount to him saying that he should accept the amount as the Accountant of the Block was not in his office at that time. He declined to accept the amount being part payment. This amount was still with Nihal Singh that the raiding party flung in and the DSP got the amount from Nihal Singh and planted the same on him. In support of the defence version, the accused examined Prithi Pal Singh. Accounts Clerk, Office of the Executive Engineer, Panchayati Raj, PW Circle, Hissar DW1 and P.D Sharma Accountant, Office of BDPO, Bawani Khera DW2. Defence version appears to be sounding death knell of the prosecution case. Accused is not required to prove defence version with the same certainty with which the prosecution is required to prove its case against the accused. While prosecution is required to prove its case against the accused beyond all reasonable doubt, accused is required only to show that the defence version is probable. Prosecution is to erect a ship. Accused is required only to create a hole in it so that it gets sunk in the ocean.

18. For the reasons given above, I am of the opinion that the learned Special Judge, Bhiwani was not justified in convicting the accused and sentencing him for the offence for which he stood charged. So, this appeal succeeds and is accepted and he is acquitted of the charge

Page: 301Appeal allowed.