JUDGMENT H.R. SHELAT, J. 1. THE appellant was placed on trial, before the Special Judge for the District of Sabarkantha at Himatnagar to answer the charge of the offence under Section 161 of the Indian Penal Code and Section 5(1)(d) read with Section 5(2) of the Prevention of Corruption Act, 1947 in Special Case No. 2 of 1986. The trial ended in convection and appellant was sentenced to rigorous imprisonment for one year of the offence under Section 161 of Indian Penal Code, and rigorous imprisonment for one year and fine of Rs. 50/-, in default rigorous imprisonment for one month more, with regard to the offence under Section 5(1)(d) r/w. Section 5(2) of the Prevention of Corruption Act. Shorn of unnecessary details, the case of the prosecution is as under. 2. KODARBHAI Revabhai Chamar was having agricultural land as well as houses. The agricultural lands were bearing Survey Nos. 72/1 and 73/2, while the houses numbers were 61 and 62. The properties of KODARBHAI Revabhai are situate within the local limits of Navagam Group Gram Panchayat. The appellant at the relevant time was serving as Talati-cum-Mantri at Navavas. KODARBHAI Revabhai Chamar died in 1984 leaving behind him five sons inclusive of the complainant Govindbhai KODARBHAI, and Santokben the widow. The names of the heirs of KODARBHAI Revabhai were required to be mutated in the relevant record with regard to the property the deceased had left. Govindbhai KODARBHAI who was at that time residing at Ahmedabad because of his service. On the third day of the death of his father met the appellant for the purpose of necessary mutation. At that time the appellant gave him a blank paper with the instruction that he should thereon get the signatures of all the heirs, and if any of the heirs was illiterate, the thumb impression might be taken. At that time the appellant demanded Rs. 500.- by way of illegal gratification to show favour. Taking the blank paper Govindbhai went to his home. He informed his mother. His mother was not ready to pay the amount of Rs. 500/- because of heavy expenses the family had to incur for the obsequies. Thereafter Govindbhai went to Ahmedabad and resumed his duties. About one month thereafter he again went to the appellant and talked about the mutation. At that time the appellant demanded Rs. He informed his mother. His mother was not ready to pay the amount of Rs. 500/- because of heavy expenses the family had to incur for the obsequies. Thereafter Govindbhai went to Ahmedabad and resumed his duties. About one month thereafter he again went to the appellant and talked about the mutation. At that time the appellant demanded Rs. 200/- for showing favour and have mutation as per the desire of Govindbhai. Govindbhai haggled and appellant then showed his willingness to exercise his power and show favour to him provided Rs. 150/- were paid to him by way of illegal gratification. Govindbhai then went to the A.C.B. office and lodged the complaint against the appellant. Shri Gadhvi the police officer then called two panchas and explained them the purpose of the mission. They were also apprised about the fact, what role they had to play, and after the bribe was given what sign the complainant would make so as to convey the acceptance of bribe amount. On the next day, i.e. on 5th June 1985 he went to the ACB office. The Police Inspector, Shri Gadhvi requisitioned the services of two panchas and Govindbhai then gave three currency notes, each of Rs. 50/-. Anthracene powder was applied on both the sides of all the notes and they were placed in the bush shirt pocket of Govindbhai with necessary direction that he would pay the amount only after demand was made. First part of the panchnama was then written and signatures of panchas were taken. Thereafter Shri Gadhvi, Govindbhai, two panchas and police constable Arvindbhai along with ultra-violet lamp and other equipment, went to Navavas by a jeep. As per the plan, Deveshbhai, the panch No. 1 and Govindbhai the complainant went into the office of the appellant, while rest of the members of the raiding party were deployed at different places and were waiting for the signal from the complainant. Going into the office of the appellant, the complainant Govindbhai talked about the mutation entry, and on being demanded he brought out Rs. 150/- from his pocket applied with anthracene powder and gave the same to the appellant. The appellant accepted the currency notes and counted with the aid of his both the hands and then put the currency notes into his bush shirt pocket. 150/- from his pocket applied with anthracene powder and gave the same to the appellant. The appellant accepted the currency notes and counted with the aid of his both the hands and then put the currency notes into his bush shirt pocket. The complainant went out of the office and moved his hand over his head and thereby gave the signal to the members of the raiding party deployed at different places. Receiving the signal, Mr. Gadhvi and others immediately rushed into the office of the appellant. Seeing them coming, the appellant brought out the currency notes given to him from his bush shirt pocket and threw the same on the floor. Mr. Gadhvi apprised the appellant why he was there and what position he was enjoying. Thereafter the amounts lying on the ground were lifted. The hands of appellants were then checked with the ultra-violet lamp. His both the hands were found glittering with light blue flourescent marks. The hands of the person who lifted the currency notes were also found glittering with light blue flourescene marks. The notes were seized and when tallied with the numbers noted in the panchnama. The notes found on the floor were the same noted in the panchnama. Thereafter second part of the panchnama was drawn and signatures of the panchas were taken. The currency note of Rs. 10/- which was found along with other currency notes in the pocket of the appellant was seized because it was found glittering with light blue flourescent marks. Shri Gadhvi the Police Inspector then registered the offence and took the investigation on hand. He then recorded the statements of concerned persons, and at the conclusion of the investigation he filed the charge-sheet against the appellant of the abovestated offences before the Court of the Special Judge for the District of Sabarkantha at Himatnagar which came to be registered as Special Case No. 2 of 1986. After hearing both the parties, the Special Judge framed the charge at Exh. 13 to which appellant pleaded not guilty. The prosecution then adduced necessary evidence. At the conclusion of the hearing, appreciating the evidence on record the learned Judge reached the conclusion that the prosecution had succeeded in proving the charge beyond every reasonable doubt. He therefore held the appellant guilty and convicted and sentenced him as aforesaid. 13 to which appellant pleaded not guilty. The prosecution then adduced necessary evidence. At the conclusion of the hearing, appreciating the evidence on record the learned Judge reached the conclusion that the prosecution had succeeded in proving the charge beyond every reasonable doubt. He therefore held the appellant guilty and convicted and sentenced him as aforesaid. Being aggrieved by the order of conviction and sentence the appellant has preferred the present appeal before this Court. Mr. Anandjiwala, the learned Advocate representing the appellant submitted that the learned Judge below fell into error in appreciating the evidence and reaching to a wrong conclusion though from the evidence on record it was crystal clear that the prosecution had failed to establish the charge. The learned Judge overlooking infirmities in the record obsessed with conviction held against the appellant. According to him demand and acceptance, the main ingredients of the offence were not established. Mr. Divetia, the learned Addl. Public Prosecutor representing the State refuted the contentions advanced submitting that there was no infirmity in the evidence, and on appreciation of the evidence, every thing was quite in consonance with law and there was no reason for me to interfere with the findings and the order passed by the lower court. 3. IN law the prosecution has to establish the charge beyond reasonable doubt. What is required to be proved has been made clear by the Supreme Court in the case of Rabindra Kumar Dey v. State of Orissa, AIR 1977 S.C. 170 as under : "Three cardinal principles of criminal jurisprudence are well settled namely : (1) that the onus lies affirmatively on the prosecution to prove its case beyond reasonable doubt and it cannot derive any benefit from weakness or falsity of the defence version while proving its case; (2) that in a criminal trial the accused must be presumed to be innocent unless he is proved to be guilty; and (3) that the onus of the prosecution never shifts." As per such law made clear I will have to consider and determine whether the charge has been proved beyond reasonable doubt. Before I proceed to dissect the merits of the rival contentions considering the evidence on record it may be stated how the offence is constituted and when the prosecution will fail if offence is not constituted. Before I proceed to dissect the merits of the rival contentions considering the evidence on record it may be stated how the offence is constituted and when the prosecution will fail if offence is not constituted. It is held by the Supreme Court in the case of Hari Dev Sharma v. State (Delhi Administration) - AIR 1976 S.C. 1489 that vital part of the prosecution if cannot be believed conviction cannot be based. As laid down in this decision the demand and acceptance are required to be proved, and if one of them is not proved being the vital part, the offence cannot be said to have been constituted and, therefore conviction cannot be sustained. Likewise view has been taken or reaffirmed in the case of Anantary Lalji Pandya v. The State of Gujarat - 1982 G.L.H. 472; State of U. P. v. Ram Asrey 1990 Cri. Law Reporter, 188; and Palanisamy Raju v. State of Tamil Nadu - 1986 Criminal Law Reporter, 99. IN view of the law made clear in the abovestated decisions what is required to be determined is whether prosecution has successfully established the case about demand and acceptance. 4. BEFORE I proceed to consider the evidence on the point, I may deal with one point going to the root of the case. The Supreme Court in the case of Bhagwansingh v. The State of Rajasthan A. I.R. 1976 S.C. 985 has held that if every thing is done by the police officer, it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. In that case the complaint was recorded by the Investigating Officer, raid was also carried out by the Investigating Officer, search and seizure were also made by the same Investigating Officer and thereafter the investigation was also carried out by the same Investigating Officer till the charge-sheet was filed. Here in the case on hand, Mr. Gadhvi the Police Inspector has done every thing in the matter right from recording of the complaint till the charge-sheet was filed. When that is the case the credibility of the case of the prosecution is certainly suspicious and on that count the prosecution must fail. Here in the case on hand, Mr. Gadhvi the Police Inspector has done every thing in the matter right from recording of the complaint till the charge-sheet was filed. When that is the case the credibility of the case of the prosecution is certainly suspicious and on that count the prosecution must fail. Even if this point tarnishing the case of the prosecution is overlooked, I see no justification to maintain the order of conviction and that is on the ground of non-establishment of the case of demand and acceptance. The prosecution relies upon the evidence of Govindbhai Kodarbhai alleged to have paid the amount of bribe abd the evidence of panch Deveshbhai Ramanlal along with the evidence of P. I., Shri. Gadhvi. Apparently on plain reading one would be inclined to believe the case of the prosecution, but when the evidence of all the three witnesses is dissected with meticulous care and finicky details, the infirmities come to surface and that interdict me from placing reliance. According to Govindbhai Kodarbhai (Exh. 34) after the death of his father the names of the heirs of his father were required to be mutated in Government record. Hence on the third day of the demise of his father he went to the appellant who was at that time working as Talati-cum-Mantri and proposed about mutation. At that time the appellant demanded Rs. 500/- for getting the work done which was certainly the illegal gratification. He was not melined to pay as he was having no money because of the heavy expenses he was required to incur for the obsequies. He went to his home and informed his mother and his mother also declined to pay the amount because of the heavy expenses they had incurred, but such facts have not been stated by him in the FIR. One month thereafter Govindbhai Kodarbhai again goes to the appellant and proposes for the mutation, but at that time according to him the appellant demanded Rs. 200/-, and thereafter when he met on 4th June 1985 the appellant agreed to do the work for Rs. 150/-. He therefore went to the office of the A.C.B. and lodged the complaint; but he has not so stated before P. I. Mr. Gadhvi when hec went to lodge the complaint. Heinformed Mr. 200/-, and thereafter when he met on 4th June 1985 the appellant agreed to do the work for Rs. 150/-. He therefore went to the office of the A.C.B. and lodged the complaint; but he has not so stated before P. I. Mr. Gadhvi when hec went to lodge the complaint. Heinformed Mr. Gadhvi that the appellant was demanding house tax and land revenue which were due till then and thereafter the complaint was reduced into writing and investigation was put to motion. When the witness does not say about such demand before P. I., Mr. Gadhvi when he goes to lodge complaint and he does not say about the talk that took place initially when Rs. 500/- were demanded and also does not say such fact to his mother, there is a reason to believe that here is a witness who is making improvements in his case so as to involve the appellant any how. Such witness cannot be believed without any independent corroboration. It was submitted on behalf of the State that panch Deveshbhai Ramanlal (Exh. 37) was certainly corroborating Govindbhai Kodarbhai. In my view the evidence of Deveshbhai Ramanlal is also not worthy of credence. From his evidence it transpires that when he went along with Govindbhai Kodarbhai to the office of the appellant, he found that the appellant was engrossed in his work and when the appellant broke the ice he stated that till then nothing was talked about land revenue and he demanded the amount for the mutuation, but later on he says that initially Somaji the peon offered the cup of water and till then no talk took place. Thereafter also no talk about the entry took place, but simply without saying anything Govindbhai tendered the amount and appellant accepted the same. Govindbhai also does not say that talk about demand took place referring the mutation or house tax or land revenue. Keeping mum he just tendered the amount and appellant accepted the same. Whether before payment any talk took place, cannot with certainty be said as the witness makes cross-cutting statements. Further it may be noted that the statement of panch Deveshbhai was recorded by the police wherein Deveshbhai does not state anything about the house tax, land revenue, payment of the amount, acceptance of the amount and then placing the amount in the pocket of the bush shirt. Further it may be noted that the statement of panch Deveshbhai was recorded by the police wherein Deveshbhai does not state anything about the house tax, land revenue, payment of the amount, acceptance of the amount and then placing the amount in the pocket of the bush shirt. He has also not stated that seeing the raiding party appellant threw out the currency notes given to him. He also did not state about light blue flourescent marks found on both the hands when tested with the aid of ultra violet lamp. He is also silent about Arvindbhai's (the constable) bringing out the amount from the pocket of the appellant. When on such material facts this Witness is silent in his statement and prefers to state all those facts before the court, his evidence cannot be accepted because he makes the improvement or alarming changes in his say so as to implicate the appellant. No doubt panchnama was prepared which is produced at Exh. 38, and the facts stated therein would lead any one to hold that offence as alleged is constituted, but that panchnama cannot be looked into. About the panchnama a question was raised before this Court in criminal Appeal No. 876 of 1981. In that case, the panchnama was not dictated by the p.anchas, but it was dictated by the police officer investigating into the matter. No reliance was therefore placed thereon because in that case it was held that it was not the record prepared on the basis of what was told by the panchas and what the panchas heard and saw. In this case also, it is made clear by Deveshbhai Ramanlal, that P. I. Mr. Gadhvi dictated the panchnama to his writer constable and the panchas were asked to sign mechanically. The panchas have not stated what they saw and heard. When that is so as per the decision of this Court in Criminal Appeal No. 876 of 1981 the panchnama cannot be accepted as a supporting piece of evidence. Mr. Gadhvi was not present when the amounts of Rs. 150/- were given. From the evidence of Govindbhai Kodarbhai and Deveshbhai Ramanlal nothing can definitely be spelt out that a demand about the amount was made for doing the work about mutation. The evidence is conflicting and to an extent dubious. Mr. Gadhvi was not present when the amounts of Rs. 150/- were given. From the evidence of Govindbhai Kodarbhai and Deveshbhai Ramanlal nothing can definitely be spelt out that a demand about the amount was made for doing the work about mutation. The evidence is conflicting and to an extent dubious. At the most what can be deduced from the evidence of both the witnesses is that after they went into the office of the appellant, without any talk keeping tight lips they just shrewdly offered the amount. Whether offence on such facts can be said to have been constituted if accordingly the currency notes are passed on to the accused. In the case of State of Madhya Pradesh v. Shri Vishnu Prasad Babele 1991 CRI. L. 3, 1983, the law made clear appeals to me most. It has been held that if the demand of bribe is not clearly established and there are discrepancies in the testimony of witnesses, the accused cannot be held guilty. A question about the establishment of the demand arose before the Supreme Court in the case of Bal Krishan Sayal v. State of Punjab - AIR 1987 S.C. 689 . In that case there was no clear evidence about what talk preceded the passing of the currency note. It was therefore, held that the demand was not clearly established and, therefore benefit of doubt must be given to the accused. The Himachal Pradesh High Court in the case of State of Himachal Pradesh v. Tej Ram - 1990 CRI L. J. 995 has made the law clear which is quite consistent with the law made clear by the Apex Court. It is held therein that in bribery case demand of illegal gratification by the accused must clearly be established; demand being the essential element of the offence if not established, the result would be catastrophic and any one may come forward to levy an allegation of corruption or bribery against the Government servant by just pushing money into his pocket or throwing the same on his table, and without even telling him the cause of it. The word "obtains" therefore has been intentionally used by the Legislature and it has a definite meaning, and, therefore, before any one can be proceeded against under the provisions of the Prevention of Corruption Act, it is necessary to prove that it was the result of the demand that money was passed on. In this case, no talk took place as per the evidence of both the witnesses. Both kept mum and straightway offered the amount. As no talk has taken place it is difficult to jump to the conclusion that for showing undue favour or for exercising one's powers the amounts were demanded and accepted by the appellant. One may assume about demand even if without any talk the amounts are passed on, but that can be on the basis of the previous talk and meeting about which the evidence on record is clear and cogent. Here the fact about previous talk and meeting as narrated by Govindbhai Kodarbhai does not inspire confidence because he has made improvements in that regard from time to time, and at times wherever he was bound to disclose the fact, he did not, and that raises the suspicion. When the case about former meeting and talk is suspicious it would not be just and proper to jump to the conclusion that the amounts passed on were in connection with the demand that was made at the time of former talk and meeting. 5. WHEN the case of demand is suspicious and cannot be accepted the same must be held to have been not proved and, therefore, it is not necessary to deal with another point. Still however I may say that even the case of acceptance is also suspicious. According to the prosecution and also as made clear by Govindbhai Kodarbhai and Deveshbhai Ramanlal that the appellant accepted the amount of Rs. 150/- and put the same in his pocket of the bush shirt, but seeing the raiding party approaching fast he threw the currency notes on the floor; but such case is also doubtful because when with the aid of ultra violet lamp the bush shirt was checked, no where light blue flourescent mark could be noted, not even on the flap of the pocket and also on the motif of the pocket. If at all the appellant had accepted the same and put the currency notes into the pocket certainly light blue flourscent marks could have been seen. The absence of those mark certainly indicates that amounts were not accepted. Of course Govindbhai and P. I., Gadhvi say that both the hands of the appellant were found glittering with light blue flourescent marks, but that case is also suspicious because Devesbhai Ramanbhal has not stated about the same in his statement before police. If at all that was the case he would not have missed to state the fact in this regard in his statement before the police. 6. SO far as acceptance is concerned, the State "relies upon light blue flourescent marks found on the hands of the appellant, panchas, complainant, Arvindbhai the constable and on the floor, but that aspect also cannot be accepted to be the decisive factor. The Supreme Court in the case of Raghbir Singh v. State of Punjab AIR 1976 S.C. 91 has made it clear that it is desirable that the currency notes to be used for the purpose of trap should be treated with phenolphthalein powder so that the handling of such marked currency notes by the public servant can be detected by chemical process, and the Court does not have to depend on oral testimony which is some times of a dubious character for the purpose of deciding the fate of the public servant. This High Court when the occasion arose in the case of Nathalal Govindji Vaghela v. State of Gujarat - XX (2) G.L.R. 190 has likewise held observing further that in the case of anthracene powder there is no detection by any chemical process and, therefore, the use of anthracene powder must be ruled put even if the witnesses may speak about a particular marks being found when the concerned articles and limbs are viewed under an ultra violet lamp. It still rests entirely on the oral evidence of witnesses in whose presence the experiment is alleged to have been carried out with no opportunity to test their veracity by reference to any scientific method of testing and analysis, which is surely available in a case in which phenolphthalein powder is used. It still rests entirely on the oral evidence of witnesses in whose presence the experiment is alleged to have been carried out with no opportunity to test their veracity by reference to any scientific method of testing and analysis, which is surely available in a case in which phenolphthalein powder is used. The Supreme Court again in the case of Khilli Ram v. State of Rajasthan - 1985 S.C.C. (Cri.) 24 has made it clear that phenolphthalein powder treatment to currency note to be used for the purpose of trap should be resorted to. In this case, anthracene powder is used and not the phenolphthalein powder and, therefore, one cannot reach to a definite conclusion about the acceptance of the amount. The court willhave rely upon the evidence of concerned witnesses. In this case the evidence of concerned witnesses for the abovestated reason is not appealing. It would not, therefore, be just and proper to conclude against the appellant about the acceptance simply on the basis of the light blue flourescent marks that could be noted on the hands or limbs of the person of the panchas, appellant and other concerned. Even if the case of acceptance is believed, mere acceptance of the amount will not constitute the offence. It must be shown that illegal gratification was demanded by accused as a motive or reward for doing or forbearing to do any official acts or for showing or forbearing to show favour or disfavour in the exercise of his official function or for rendering any services or disservice to any one. Here in this case as discussed above the case of demand is not clearly established. The talk took place formerly is also not clearly established and there is nothing on record going to show that for doing a particular work namely mutation, the amounts were demanded and accepted. On the contrary the evidence reveals that there is simple acceptance without any demand. In view of the above discussion, the offence simply on acceptance cannot be said to have been constituted. 7. FOR the aforesaid reasons, the demand and acceptance are not clearly established and, therefore, the offence is not constituted. It appears from the evidence on record that the appellant is wrongly implicated. Formerly a plot was allotted and that too free of charge. 7. FOR the aforesaid reasons, the demand and acceptance are not clearly established and, therefore, the offence is not constituted. It appears from the evidence on record that the appellant is wrongly implicated. Formerly a plot was allotted and that too free of charge. The plot was to be allotted provided the grantee satisfied all the requirements as laid down in the rules governing the grant. The appellant could know that the complainant had not satisfied the condition precedent for the purpose of obtaining the plot. When it was brought to the notice of the higher authority making necessary report the grant was withdrawn and plot was taken back. Naturally therefore the complainant was not happy and had a reason to retaliate and harass the appellant in future. He must therefore be hovering and there is a reason to believe in view of the evidence on record that he then planned a case about corruption and implicated the appellant wrongly. Haribhai Dalabhai had encroached the land and a report thereof was made by the appellant and encroachment was then got removed in which the complainant was then got removed in which the complainant was interested. This is another reason which generated ill-will so as to implicate the appellant. The learned Judge below has overlooked the abovestated facts and was mainly guided by the light blue flourescent marks and misdirected himself. In view of the above discussion, when demand and acceptance is not established and there is a reason to believe that appellant is wrongly implicated, the offence cannot be said to have been constituted. The appellant, therefore, deserves to be acquitted. 8. NO doubt, corruption is going rampant, adversely affecting the administration and alarmingly injuring the well being of the people and also the economy of the Nation and therefore, the person involved in corruption must strictly be dealt with, and no leniency can be shown. But the court can heavily come down upon the accused only if the charge is proved in accordance with law. In this case when the charge is not proved, for the aforesaid reason, I will have to reluctantly allow the appeal and set aside the conviction. In the result, the appeal is allowed. The judgment and order of the lower court dated 25th September 1986 convicting the appellant are hereby set aside and the appellant is acquitted with which he is charged. In the result, the appeal is allowed. The judgment and order of the lower court dated 25th September 1986 convicting the appellant are hereby set aside and the appellant is acquitted with which he is charged. Fine if paid be refunded. The appellant at present is on bail. The bail bonds executed by him are cancelled. Appeal allowed.