Criminal Appeal (SJ) No. 165 OF 1996 In the matter of an appeal under Section 374(2) of the Code of Criminal Procedure. ************ Janardan Prasad Chaurasia, S/o Late Mahvir Mahto, resident of Village-Matihani, P.S.-Khodawanpur, District-Begusarai. ……(Appellants) Versus THE STATE OF BIHAR-------(Respondent) ************* For the Appellants : Mr. C.M. Chaurasia, Adv. For the Vigilance : Mr. Arvind Kumar, Adv. ************** P R E S E N T THE HON'BLE JUSTICE SMT. ANJANA PRAKASH Anjana Prakash, J. 1. The appellant has been convicted under Section 5(2) and 5(1)(d) of the Prevention of Corruption Act corresponding to Section 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act and sentenced to RI for one year and a fine of Rs. 1500/- in default of which further four months RI by the Special Judge, Vigilance, Patna in Special Case. No. 25 of 1988 by a judgment dated 31.07.1995. 2. The case of the complainant, Md. Abdul Kalam is that he had applied for a certified copy of order of a certain case where the appellant was copying clerk but he refused to do so and instead demand of bribe of Rs 100/-. A verification was made on 08.04.1978 and on the basis of the same a ferdbeyan report was given on 12.04.1978 and the vigilance case was instituted on 26.06.1978. On the said date the trap team entered into 2 the office of the appellant and recovered a sum of Rs. 50/- from his pocket. 3. During trial the prosecution in all examined fifteen witnesses out of whom P.W. 2 and P.W. 10 are tendered witnesses. P.W. 12 and P.W. 13 are formal witnesses. P.W. 9 and P.W. 10 were independent witnesses on the point of recovery of money from the person of the appellant. P.W. 6 is the shadow witness. P.W. 11 is the informant who was the leader of the trap party. P.W. 14 is one of the members of the trap party along with P.W. 1, P.W. 3, P.W. 4 and P.W. 5. Neither the complainant nor the Investigating Officer has been examined in the case. 4. Since in cases of trap the two essential elements that are to be proved are (i) demand and (ii) recovery this Court has to consider whether the prosecution has successfully proved its on these two points. It appears that on the point of demand the primary witness who was the complainant has not been examined on behalf of the prosecution. P.W. 6 the shadow witness has proved the factum of demand on the earlier date but is not on the point of demand on the date of occurrence. In view of such the prosecution has not been able to prove that the appellant had demanded bribe on the date of occurrence and accepted the same in pursuance to the demand. Mere recovery of Rs. 50/- 3 from the person of the appellant would not satisfy the ingredients required for proving a trap case. 5. Under the circumstances, the appeal is allowed and the judgment dated 31.07.1995 passed by the Special Judge, Vigilance, Patna in Special Case No. 25 of 1988 is set aside. The appellant is discharged of the liability of his bail bond. (Anjana Prakash, J.) Patna High Court, Patna, Dated, the 17th May, 2011. NAFR/Vikash/-