Judgment Ravi R. Tripathi, J.—The present appeal is filed by the State of Gujarat against judgment and order of acquittal dated 05.02.1993 passed by the learned Special Judge, Mehsana in Special (ACB) Case No. 16 of 1989. The learned was pleased to acquit the opponents-accused for the offence under sub-section (2) of Section 5 of the Prevention of Corruption Act, 1988 and Sections 161 and 165(A) of the Indian Penal Code. 2. Heard learned APP Mr. J.K. Shah for the appellant– State. 3. Learned APP invited attention of the Court to the case of the prosecution, which is set out in Para-1 of the judgment, which reads as under:— “(1) The fact of the case of the prosecution in short is that the accused No. 1 was discharging duty as a Junior clerk in the office of Assistant Government Labour Officer and Inspector Minimum Wages Act, the accused No. 2 was discharging duty as an Assistant Government Labour Officer and Inspector Minimum Wages Act and the accused No. 3 was discharging duty as a peon in the said office at Vijapur in the year 1987. The work in respect of Minimum Wages Act was also conducted in this office. Therefore, in this way, all these accused persons were public servants. During this, the accused No. 1 Poonambhai came to the complainant Revabhai Natthudas Patel who has seven bigha agricultural land in the village Delwada, before about 10 days prior to 6/7/87 and he told him that ‘ you are doing farming. But, you do not keep pay slip or pay book for the labourers and do not fill up pay slip in their presence and a case has been filed against you and if you want the case to be disposed of, give me Rs. 150-00 at present.’ It is natural that the complainant did not have Rs. 150.00 at that time. But, he had Rs. 50-00. On giving the same to the accused No. 1 Poonambhai, he accepted the said amount of Rs. 50-00. The complainant told the accused No. 1 to give the remaining amount of Rs. 100-00 afterwards. Therefore, the accused No. 1 Poonambhai told him that ‘ when you receive the summons, you be present in our office and bring the remaining amount of Rs. 100-00 at that time.’ Thereafter, Poonambhai went away. 50-00. The complainant told the accused No. 1 to give the remaining amount of Rs. 100-00 afterwards. Therefore, the accused No. 1 Poonambhai told him that ‘ when you receive the summons, you be present in our office and bring the remaining amount of Rs. 100-00 at that time.’ Thereafter, Poonambhai went away. Thereafter, the complainant received a letter dated 29/6/87 for remaining present in the office of Assistant Government Labour Officer and Inspector Minimum Wages Act, Vijapur on 3/7/87 and it was stated to remain present in the office during 11.00 in the morning to 6.00 in the evening on 6/7/87. Therefore, the complainant did not want to give bribe to the accused -Poonambhai. Therefore, he went to the office of A.C.B., Ahmedabad and gave a complaint before Police Inspector Shri G.K. Desai and after Police Inspector Shri G.K. Desai had registered the complaint of the complainant, he made arrangement to call two panchas. Upon arrival of the panchas, the complainant and the panchas were introduced with one another and the pachas were read over the fact of the complaint of the complainant in short. Thereafter, on saying the complainant to produce the amount to be given in bribe, the complainant produced four notes of Rs. 20.00 denomination and two notes of Rs. 10.00 denomination and thus, on producing total Rs. 100.00, their numbers and values were registered in the primary panchnama. Thereafter, anthracene powder was applied on both the sides of all the notes and experiment of ultra violet lamp was made. After folding the notes of value of Rs. 100.00, they were kept in the right pocket under the banyan worn under the trouser of the complainant which was kept empty and the complainant was instructed that he should go to the accused Poonambhai along with panch No. 1 and talk for not initiating a case against him and if the accused makes a demand for money, he should be given the notes in question, having powder and if the accused accepts the notes, a sign should be made by spitting and until the accused does not make a demand for the amount of bribe, the notes in question having powder should not be touched. The pancha No. 1- Vaghajibhai Maganbhai Desai was given such instruction that, ‘ he should remain with the complainant and listen to the conversation made between the complainant and the accused and see the transaction. The pancha No. 2 was instructed to remain along with the radding party. The pancha No. 2 and the radding party were also instructed that they should take position around the office of the accused and on giving the proposed signal from the complainant, a raid should be conducted immediately. In this regard, the first part of the panchnama was prepared and the panchas and Police Inspector Shri G.K. Desai made signatures. Thereafter, the complainant, panchas and the members of radding party left Ahmedabad in government vehicle and arrived at Vijapur at 11.30 o’clock in the morning and the vehicle was parked near the T. B. Hospital and thereafter, the complainant and pancha No. 1 were walking ahead and went to the office of the accused Poonambhai. The said office is situated on the first floor. The complainant and pancha No. 1 firstly met to the accused No. 1 Poonambhai and the complainant made a conversation with him and during this, the accused Poonambhai asked the complainant ‘ has he brought Rs. 100.00 which was demanded ? ‘ Then, the complainant replied in positive. Therefore, the accused Poonambhai again asked the complainant, ‘ have you got the change ? ‘ Then, the complainant replied in positive. Thereafter, the accused Poonambhai took the complainant and the panch No. 1 into the cabin of the accused No. 2 RG. Jadav and at the behest of the accused Poonambhai, the complainant gave Rs. 50.00 to the accused No. 2 Jadav which was accepted by him with right hand and placed in the drawer of the table. Thereafter, when they came outside, the accused No. 1 Poonambhai stated the complainant to give the rest of Rs. 50.00 to the peon – Babubhai and therefore, he gave Rs. 50.00 to the accused No. 3 the peon-Babubhai. The peon-Babubhai accepted the said amount and placed the same in the back pocket of the pant. During this, the complainant went to the gallery of the said office and made the proposed sign and therefore, the members of the radding party and pancha No. 2 came into the office and Police Inspector Shri G.K. Desai gave his introduction to the accused and Rs. During this, the complainant went to the gallery of the said office and made the proposed sign and therefore, the members of the radding party and pancha No. 2 came into the office and Police Inspector Shri G.K. Desai gave his introduction to the accused and Rs. 50.00 was taken out from the drawer of the table of the accused No. 2 R.G. Jadav through the pancha No. 1 and Rs. 50.00 was taken out from the pocket of the accused No. 3 the peon Babubhai through pancha No. 2. And on comparison of its number and denomination with the primary panchanama, the same were found to be similar. Thereafter, on making the experiment of ultra violet lamp, the light blue spots having white shine were found in the light of ultra violet lamp on the fingers and the tip of the thumb of right hand of the accused No. 2-R.G.Jadav and on the outside and inside part of the drawer of the right side of the table and on the tag fixed to the drawer and on the fingers of both the hands and on the tip part of thumb and on the swollen part of palm and on the border of the right side pocket of the back side of the pant and inside part of the accused No. 3 the peon-Babubhai and on the back part of the shirt worn by the peon-Babubhai and on the fingers of both hands and on the tip part of the thumb and the swollen part of palm and on the border of the below pocket of the right side of the banyan and inside part of the complainant. Thereafter, all the articles were seized and the panchanama was completed. Thereafter, Police Inspector Shri G.K. Desai recorded the explanatory statement of the accused persons and after coming to Mehsana, registered the offence against the accused in the office of A. C. B.,Mehsana and handed over the further investigation to Police Inspector Shri T.M. Parmar in and Shri T.M. Parmar recorded the statements of the members of radding party. Thereafter, Police Inspector Shri G.K. Desai recorded the explanatory statement of the accused persons and after coming to Mehsana, registered the offence against the accused in the office of A. C. B.,Mehsana and handed over the further investigation to Police Inspector Shri T.M. Parmar in and Shri T.M. Parmar recorded the statements of the members of radding party. Other investigation was made and thereafter, P.I. Shri V.K. Valekar obtained the permission for the prosecution and the charge sheet of this case has been filed.” 3.1 On the basis of the complaint of the complainant – Revabhai Natthudas Patel, the prosecution, after completing necessary formalities and after recording explanatory statement of the accused by Police Inspector Shri G.K. Desai, the case was registered at ACB Office at Mehsana and further investigation was entrusted to Police Inspector Shri T.M. Parmar of ACB Office. After Police Inspector Shri T.M. Parmar recorded statements of the members of the Raiding Party and conducted necessary investigation, Police Inspector Shri V.K. Valekar obtained necessary permission for prosecution and filed charge sheet. 3.2 The charge was framed against the accused. The accused having denied the charges, trial was commenced. 3.3 In support of the case of the prosecution, the prosecution led the following documentary and oral evidences:— Sr. No. Particulars Exh. No. 1. Deposition of complainant – Revanbai Natthudas Patel 19 2. Complaint 20 3. Deposition of Panch No. 1 – Vaghjibhai Maganbhai Desai 21 4. Panchnama 22 5. Receipt having signatures of Panchas and Police Inspector 23 Shri G.K. Desai of recovering Currency note of Rs. 50 recovered from accused No. 2 – R.G. Jadhav, drawer of the table, other misc. amount, few papers 6. Receipt having signatures of Panchas and Police Inspector 24 Shri G.K. Desai of recovering Currency note of Rs. 50 from accused No. 3 – Babubhai, Peon, pant and shirt 7. Receipt having signatures of Panchas and Police Inspector 25 Shri G.K. Desai of recovering certain papers from accused No. 1 – Punambhai, Clerk 8. Deposition of witness Shri Punjabhai 26 9. Deposition of witness Shri Mahendrabhai Kacharabhai 27 10. Deposition of Narshibhai Mohandas 28 11. Recovered documents 29 to 50 12. Deposition of Raiding Party Police Inspector Shri 51 G.K. Desai 13. Deposition of Investigating Officer Shri T.M. Parmar 53 14. Deposition of witness Shri Punjabhai 26 9. Deposition of witness Shri Mahendrabhai Kacharabhai 27 10. Deposition of Narshibhai Mohandas 28 11. Recovered documents 29 to 50 12. Deposition of Raiding Party Police Inspector Shri 51 G.K. Desai 13. Deposition of Investigating Officer Shri T.M. Parmar 53 14. Permission to prosecute 54 3.4 After production of the aforesaid oral and documentary evidence, learned Public Prosecutor Shri S.C. Shah filed pursis Exh.55 declaring that no other oral evidence is required to be led. 3.5 A detailed statement of the accused was recorded under Section 313 of the Code of Criminal Procedure wherein the accused denied all the allegations and also declined to examine any witness on affidavit. 3.6 On hearing learned Public Prosecutor Shri S.C. Shah and learned Advocate Mr. B.P. Acharya for the accused, the learned Special Judge framed the Issues, which are set out in Para-6. The Issues are as under:— “(6) In this case, the following issues are arisen for my decision: (1) whether the prosecution proves that the accused persons Nos. 1, 2 and 3 were discharging duty in their capacity as public servant as junior clerk, Assistant Government labour and Inspector Minimum Wages Act and peon respectively in the office of assistant Government Labour Officer and Minimum Wages Act Inspector, Vijapur, in the year 1987 and in this way whether it is proved that they were/are public servants? (2) Whether the prosecution proves that the accused persons filed the case against the complainant. The accused No. 1 demanded the amount of Rs. 150.00 from the complainant illegally and as gratification other than legal remuneration for personal purpose and whether it is proved that the amount of Rs. 50.00 was accepted on that day? (3) Whether the prosecution proves that the accused No. 1 again made a demand from the complainant in connection with the demand of said amount of Rs. 150.00 as illegal gratification , during the trap of bribe , on 6/7/87 and on behalf of him the accused Nos. 2 and 3 each accepted the amount of Rs. 50.00 from the complainant and thus, whether it is proved that all the accused had misused their office as public servants by abetting one another and by accepting the amount as illegal gratification?” 3.7 The learned Special Judge recorded finding to Issue No. 1 in affirmative, whereas Issue Nos. 2 and 3 each accepted the amount of Rs. 50.00 from the complainant and thus, whether it is proved that all the accused had misused their office as public servants by abetting one another and by accepting the amount as illegal gratification?” 3.7 The learned Special Judge recorded finding to Issue No. 1 in affirmative, whereas Issue Nos. 2 and 3 in negative and passed the judgment and order which is under challenge in this appeal. 4. Learned APP invited attention of the Court to the evidence of the complainant – Shri Revabhai Natthudas Patel Exh.19 and also to complaint Exh.20. Learned APP vehemently submitted that in corruption matter, demand, acceptance and recovery are the three important facets and according to him, all these three facets stand proved in the present case and therefore, the learned Special Judge has committed an error in recording acquittal in the matter. He submitted that it ought to have been appreciated that there was a specific demand, there was a specific acceptance and there was recovery from the accused and therefore, conviction was the only way out for the learned Special Judge. 4.1 Learned APP submitted that even if the panch has not supported the case of the prosecution, it is a settled position of law that even on the basis of the evidence of the members of the Raiding Party, conviction can be recorded. He submitted that in the present case, Police Inspector Shri G.K. Desai, in his deposition at Exh.51, had specifically mentioned that, ‘the complainant had come to him and had filed the complaint’. Learned APP submitted that the evidence of panch No. 1– Vaghjibhai Maganbhai Desai Exh.21 was required to be appreciated by the learned Special Judge in its true perspective and if that would have been done, acquittal would not have been recorded by the learned Special Judge. 4.2 Learned APP submitted that the learned Special Judge ought to have appreciated the fact that when the hands of accused Nos. 2 and 3 were examined with the help of ultraviolet lamp, they were found stained with anthracene powder. 4.3 Learned APP also submitted that the learned Special Judge ought to have appreciated the fact that accused No. 1 took the complainant and panch No. 1 in the cabin of accused No. 2 and gave Rs. 2 and 3 were examined with the help of ultraviolet lamp, they were found stained with anthracene powder. 4.3 Learned APP also submitted that the learned Special Judge ought to have appreciated the fact that accused No. 1 took the complainant and panch No. 1 in the cabin of accused No. 2 and gave Rs. 50 and thereafter, they came out and accused No. 1 asked the complainant, in presence of the panch to give Rs. 50 to accused No. 3. Learned APP submitted that, that being so, the learned Special Judge has committed an error in not believing the case of the prosecution and recording acquittal. 4.4 Learned APP strenuously submitted that the learned Special Judge has committed an error in not giving proper weightage to the fact that the currency notes of Rs. 50 were found from accused Nos. 2 and 3 and there was no explanation for the same, even in the statement recorded under Section 313 of the Code of Criminal Procedure. Learned APP submitted that similarly, accused Nos. 2 and 3 are not able to explain as to why their cloths bare marks of anthracene power. Learned APP submitted that in absence of any explanation coming from the accused about the manner and method in which they came in possession of the currency notes, there was an irrebuttable presumption under the Prevention of Corruption Act and conviction was required to be recorded. 4.5 Taking into consideration the aforesaid submissions, the learned APP was asked to invite attention of the Court to the reasons for which the learned Special Judge has recorded acquittal. In this regard, learned APP invited attention of the Court to paras-10 and 11, wherein the learned Special Judge has appreciated the evidence in detail. The learned Special Judge has specifically considered the fact that, ‘Punambhai Lavajibhai Parmar, who is accused No. 1, was only a Junior Clerk and he did not have the authority to dismiss the case against the complainant and if accused No. 1 did not have any authority to dismiss the case against the complainant, there was no question of accused No. 1 demanding an amount of Rs. 150/- from the complainant. The learned Special Judge has also appreciated that, ‘if it is presumed that accused No. 1 had demanded Rs. 150/- and on the day of demand, the complainant had given Rs. 150/- from the complainant. The learned Special Judge has also appreciated that, ‘if it is presumed that accused No. 1 had demanded Rs. 150/- and on the day of demand, the complainant had given Rs. 50 to accused No. 1 – Punambhai then there was no question of issuing notice – Exh.29. It is the case of the complainant that the complainant paid Rs. 50 to Punambhai on the day the amount was demanded and for paying Rs. 100/-, time was granted’. 5. The learned Special Judge seems to be right in his appreciation of evidence. If it is believed, as stated by the complainant, that accused No. 1 demanded Rs. 150/-, of that Rs. 50 were paid by the complainant on the said day, if that is true then accused No. 1 would not have issued notice (Exh.29) to the complainant when the complainant was already granted time to pay Rs. 100/-. 5.1 So far as acceptance part is concerned, evidence for the same is discussed by the learned Special Judge in Para-11, wherein it is stated that, ‘Police Inspector Shri G.K. Desai along with complainant, two panchas and other members of the Raiding Party had reached at 1.300 at Vijapur in Government vehicle from Ahmedabad and the vehicle was stopped at T. B. Hospital and the complainant and panch No. 1 Vaghjibhai Maganbhai Desai went to the office of the Government Labour Officer, which was situated at the upper floor’. It is then stated that, ‘the complainant and panch No. 1, after reaching upper floor, met accused No. 1 – Punambhai’. It is further stated that, ‘in the entire office, except these three accused, no other employee was present. Punambhai was sitting in one room and in cabin near that room, accused No. 2 Mr. Jadhav is sitting and accused No. 3 was standing outside that cabin’. 5.2 The case of the prosecution is that, ‘the complainant had talked to Punambhai for not filing of case and accused Punambhai had asked the complainant whether he has brought Rs. Punambhai was sitting in one room and in cabin near that room, accused No. 2 Mr. Jadhav is sitting and accused No. 3 was standing outside that cabin’. 5.2 The case of the prosecution is that, ‘the complainant had talked to Punambhai for not filing of case and accused Punambhai had asked the complainant whether he has brought Rs. 100/- and on complainant answering in affirmative, accused No. 1 – Punambhai asked the complainant as to whether he has brought the amount in change, to which again the complainant answered in affirmative and thereafter, accused No. 1 took the complainant and panch No. 1 into the chamber of Labour Officer Shri R.G. Jadhav and on accused No. 1 asking the complainant, the complainant gave Rs. 50 to Shri R.G. Jadhav, which was accepted by him and were kept in the left-hand side drawer of the table. Thereafter, accused No. 1–Punambhai came out and remaining Rs. 50 were asked to be given to accused No. 3–Babubhai (Peon)’. It is the case of the prosecution that, ‘accused No. 3 accepted Rs. 50 on behalf of the accused No. 1 – Punambhai. The same were accepted by accused No. 3 and were kept in the right-side back pocket of the pant and thereafter, the complainant went to the gallery and from there, he made the agreed signal’. 5.3 The learned Special Judge has considered the aforesaid case of the prosecution and has recorded that the aforesaid version of the prosecution is not supported by any independent witness. The learned Judge has taken into consideration that, ‘the complainant had written letter to accused No. 1–Punambhai requesting him to settle (‘mandval’) the case’. It is also recorded that, ‘there were no agriculturists in the cabin of Shri Jadhav (accused No. 2) and he was all alone. The complainant did not have any talk with Shri R.G. Jadhav. The complainant also did not have any talk with accused No. 3-Babubhai’. It is also denied that, ‘the peon (accused No. 3) had refused to accept Rs. 50, but he forcibly kept that amount in the back pocket of the pant of accused No. 3’. The complainant did not have any talk with Shri R.G. Jadhav. The complainant also did not have any talk with accused No. 3-Babubhai’. It is also denied that, ‘the peon (accused No. 3) had refused to accept Rs. 50, but he forcibly kept that amount in the back pocket of the pant of accused No. 3’. 5.4 The evidence of panch witness No. 1-Vaghjibhai Maganbhai Desai-Exh.21 is appreciated by the learned Special Judge at this stage, who has stated that, ‘along with the complainant, he had gone to the office of the Labour Officer and thereafter, he had met the officer along with the complainant and that officer had asked the complainant to give an application. In response to which, the complainant went into the cabin and gave an application and thereafter, the complainant placed Rs. 50 on the table of Shri R.G. Jadhav and thereafter, the complainant come out and after coming out, the complainant tried to give Rs. 50 to peon, but peon stated that, ‘he does not want that money and the peon returned that amount to the complainant’. 5.5 On perusal of the evidence, the learned Special Judge has reached to the conclusion that, ‘there was no demand by Shri Jadhav and it is not established from the deposition of the panch that Rs. 50 were accepted by the officer with right hand and after keeping the amount in the drawer of the table, had closed the drawer of the table’. 5.6 The learned Special Judge has also considered the contradictions in the evidence of the complainant and the panch witness, more particularly on the point that peon was reluctant to accept the money and returned the same to the complainant. 5.7 In Para-12, the learned Special Judge has discussed the evidence pertaining to recovery part and on totallity of the case, the learned Special Judge has found that the prosecution is not able to establish its case. 6. Taking into consideration the totality of the facts of the case, the Court finds that the learned Special Judge has not committed any error, for which the judgment and order of acquittal is required to be interfered with by this Curt. Hence, the appeal is dismissed. P P P P P