JUDGMENT S.G. Shah, J. 1. Heard Mr. K.B. Anandjiwala, learned Advocate for the appellants and Ms. Jhaveri, learned A.P.P. for the respondent-State. The appellants are convicted by impugned judgment and order dated 30-7-1993 in Special Case No. 12 of 1993 delivered by the learned Special Judge of City Sessions Court, Ahmedabad. The appellant in Criminal Appeal No. 1022 of 1993 - accused No. 1, Shantaben Sharadkumar Dave is convicted under Sec. 15 of the Prevention of Corruption Act (hereinafter referred to as 'the Act') for attempting to commit the offence under Sec. 13(1)(d)(i)(ii) of the Act and awarded sentence to undergo simple imprisonment (S.I.) for a period of two years and to pay fine of Rs. 500/-, in default of payment of fine, to undergo further S.I. for a period of two months. However, she has been acquitted of the charges under Secs. 13(1)(d)(i)(ii) and 13(2) of the Act. Whereas the appellant in Criminal Appeal No. 1033 of 1993 - accused No. 2, Jahid Hussain Mohmedhussain Shaikh has been convicted for the offence punishable under Sec. 12 of the Act and awarded sentence to undergo S.I. for a period of two years and to pay fine of Rs. 500/-, in default of payment of fine, to undergo further S.I. for a period of two months. 2. Accused No. 1 Shantaben S. Dave is no more since she expired, but as she was serving as a Police Sub-Inspector of Women Police Station at the relevant tithe, her legal heirs have opted to proceed further in the appeal instead of getting it abated, considering the fact that if she succeeds in the appeal, she would be entitled to service benefits, which were otherwise withheld because of such conviction. Therefore, at present her appeal is being carried further by her legal heirs. 2.1. Accused No. 2-Jahid Hussain Shaikh was practicing as an Advocate, and therefore, he has also challenged the impugned judgment. For the sake of convenience, they are now referred as accused No. 1 and accused No. 2 respectively though they are appellants in different appeals. 3. Learned Advocate Mr. 2.1. Accused No. 2-Jahid Hussain Shaikh was practicing as an Advocate, and therefore, he has also challenged the impugned judgment. For the sake of convenience, they are now referred as accused No. 1 and accused No. 2 respectively though they are appellants in different appeals. 3. Learned Advocate Mr. Anandjiwala for the appellants has referred the paper-book and submissions of their case and pointed out that in fact there was no demand at all by any of the accused, but this is a case of presumption by the Investigating Officer (I.O.) regarding probability of acceptance of illegal gratification by someone in the women cell of Karanj Police Station of the City, and therefore, in absence of specific demand by any of the accused for any illegal gratification, the amount paid by the complainant during the raid to accused No. 2, an Advocate, towards his legal fees and charges, for submitting a bail application for brother of the complainant cannot be considered as acceptance of any amount as illegal gratification either by the accused No. 1 or abetment of such act by the accused No. 2 in any manner whatsoever, and therefore, the conviction is absolutely not only improper, but illegal and against the basic principle of applicable law. 4. If we peruse the record including oral evidence by the witnesses and other documents as well as the impugned judgment, it seems that there is substance in the submission and argument made by learned Advocate Mr. Anandjiwala. 5. It is not disputed at all that the complainant had never met or was not knowing either of the accused before the actual incident of raid which was carried out as explained in the F.I.R., Panchnama as well as other evidence by I.O. and members of raiding party. 6. P.W. No. 1 at Exh. 13 is the complainant Kantibhai Amrutbhai Thakkar, who has in categorical terms and that too in his examination-in-chief confirmed that his brother was arrested for the commission of offence under Sec. 498A of the Indian Penal Code by the Women Cell of the Karanj Police Station and within 24 hours he was to be presented before the concerned Magistrate, and therefore, he and his brother Govindbhai had gone to Karanj Police Station, where Women Cell is functional, which has arrested their brother and when they both were standing at some distance of the Police Station, one Mr. Chavda met them and asked them why they were standing there, and thereupon, he conveyed Mr. Chavda that he has some work in Karanj Police Station pertaining to some case. Thereupon, Mr. Chavda, who was identified as Police Inspector, has conveyed them that he has got authentic information that in the said Police Station i.e., in Karanj Police Station bribe is being accepted, and therefore, he wants help of the complainant in a trap. Thereupon, the complainant has agreed and Mr. Chavda had taken them to Shahibaug Police Station where preparation of raid had been carried out. Thereafter, till the point the complainant reached to the place of the incident, though there is detailed evidence about acceptance by the investigating agency for preparing raiding party, all those information is not relevant at this stage, since even if there is a corroborating evidence about such preparation of raid and successful raid, the evidence before the raid and during the raid categorically confirms that practically there was no demand and in fact, there was no acceptance of the amount in question as illegal gratification. Thereby, if we scrutinize the actual story of incident with reference to both the accused, it is an admitted position beyond reasonable doubt when it is stated by the complainant in his examination-in-chief that after full preparation, he reached to the Court premises with raiding party where accused No. 1 came and asked them to call their Advocate i.e., Advocate of the complainant who wants to get his brother released on bail. Thereupon, brother of the complainant i.e., Govindbhai had gone to call Advocate. Thereupon, he met accused No. 2, and hence, they both i.e., brother of the complainant Govindbhai and accused No. 2 being an Advocate, had gone to the place where accused No. 1 was sitting near the Court room. Now, at this juncture, the only statement by the complainant is to the effect that the accused No. 1 has said something to the accused No. 2, and therefore, accused No. 2 has come to the complainant and asked that have you brought the money and when he answered in affirmative, they all went before the accused No. 1 where he paid the amount to the accused No. 2. At that tithe, because of signal, raiding party had come and caught both the accused with the tainted currency notes and confirmed that currency notes which are to be used for raid, have been found from the accused No. 2 since presence of anthracene powder has been confirmed on such notes as well as hands, cloths, etc., of the accused No. 2. If we scrutinize this part of the evidence properly, it becomes crystal clear that there was no demand by any of the accused before complainant met them in the Court compound where in general, Advocates are accepting their legal fees and charges for providing their professional services to their clients. Therefore, only because Advocate has accepted an amount of Rs. 500/- from the complainant for getting release his brother on bail at that point of tithe, then in absence of any specific evidence regarding prior meeting with the parties or specific demand at the material tithe to confirm that such demand is for illegal gratification, if any, to be paid to the accused No. 1 - a Police Officer. It cannot be ignored that after arrest, when accused is to be brought before the Magistrate within 24 hours, there is no act remains for such Police Officer to oblige the complainant by accepting any amount towards bribe since brother of the complainant, who is accused of criminal offence, was already brought before the Court, and therefore, now it was the function and duty of the complainant or his brother, who is arrested, to manage for applying for bail and while applying for bail, otherwise also intimation to the officer who has brought the accused before the Court is necessary. Therefore, if for any such purpose, an Advocate accepts the amount for his legal fees, then it cannot be said that only because Advocate and I.O. had a talk, the demand by the Advocate is proved as illegal gratification for Police Officer also. 7. Rest of the story of the complainant that how test was conducted for the confirmation of tainted currency notes, is not material at all in view of what is discussed hereinabove. So also Panch witnesses as well as police witnesses are not much material irrespective of the fact that whether they support the prosecution case or not. 7. Rest of the story of the complainant that how test was conducted for the confirmation of tainted currency notes, is not material at all in view of what is discussed hereinabove. So also Panch witnesses as well as police witnesses are not much material irrespective of the fact that whether they support the prosecution case or not. So also the documentary evidence on record which otherwise confirm the raid though proved, they are not material in absence of clear positive evidence regarding demand and acceptance of amount as illegal gratification only and not towards the professional fess by an Advocate. 8. Though, there is provision of presumption under the Act, the settled legal position even in case of presumption is clear that presumption is always rebuttable and if other side i.e., accused in the present case, is able to explain and prove by prima facie evidence that there is neither demand nor acceptance of the amount as illegal gratification, then only because of the provision regarding presumption, it cannot be said that there is clinching evidence so as to convict the accused, as done by such impugned judgment by the trial Court. It is also settled position that while rebutting the evidence of the prosecution, so also for rebutting the evidence attracting presumption clause, the accused need not required to prove his case beyond reasonable doubt with cogent and reliable evidence, but if he is able to create doubt by prima facie evidence against the prosecution story, then presumption clause will not help the prosecution to confirm the conviction based solely upon such presumption. In the present case, even at the cost of repetition, it is to be recollected here that there is neither the evidence nor the case of the complainant at any point of tithe that he had met the accused prior to the raid or he was knowing the accused prior to the raid and that the accused have demanded illegal gratification for any particular act to be performed or to omit to perform by them so as to extend any improper benefit to the complainant or even to perform their legal duty. It is also not the case of the complainant that there was specific demand towards illegal gratification in any manner whatsoever except the statement that when the accused No. 2 asked for the amount for initiating proceedings to get brother of the complainant released on bail, there was talk between the accused Nos. 1 and 2. Suffice it to say that such talk may be even for some information like F.I.R. number, Sections under which accused has been booked, etc., but in any case in absence of evidence, it cannot be believed that the talk was regarding illegal gratification to be demanded from the complainant and then to accept it before extending any benefit to him. 9. I have reason to discuss as above because in Exh. 5 after recording further statement under Sec. 313 of the Criminal Procedure Code, both the appellants - accused have made a precise statement on their behalf, which is submitted in the form of statement in writing in reply to the question put by the Court that whether they would like to say anything more. Thus, it is part of the statement under Sec. 313. If we peruse such statement, it becomes crystal clear that both the accused have also categorically disclosed that they do not know the complainant before the incident: whereas the accused No. 2 has categorically stated that the complainant has never met him, but his brother Govind had met him on previous day with reference to one another Advocate, namely Moin Shaikh and for getting his brother released on bail, he has accepted Rs. 150/- towards expenses of paper-work and fees was not paid to him on that day. 10. In view of such specific statement by both the accused, it was the duty of the prosecution to prove it beyond reasonable doubt with cogent evidence regarding demand by the accused. It is settled legal position that if there is no demand, only presence of tainted notes at the tithe of raid is not enough to convict the person under the Act. 11. Now, only issue remains is with reference to the conviction under Sec. 15 of the Act. If we peruse the provisions of Sec. 15, though it provides punishment for attempt to commit such an offence, the basic thing remains that there must be cogent evidence to prove the attempt. 11. Now, only issue remains is with reference to the conviction under Sec. 15 of the Act. If we peruse the provisions of Sec. 15, though it provides punishment for attempt to commit such an offence, the basic thing remains that there must be cogent evidence to prove the attempt. But in any case, when conviction is to be confirmed under Sec. 15 of the Act, then presumption clause would not be attracted, and thereby, there must be proper and corroborating cogent evidence to confirm that there was demand and attempt of acceptance. As discussed hereinabove, in the present case, there was no demand at all and when so-called raid was positive, thereby when tainted notes were found from the accused No. 2, there is no question of charges of attempting to commit offence, inasmuch as it may so happen that though demand is proved, at the tithe of acceptance the accused may try to remain away from the possible raid and to accept the amount by other means. However, there is no such evidence, and therefore, even conviction under Sec. 15 of the Act is also not proper so as to confirm it. 12. The overall scrutiny of the record on hand and judgment, makes it clear that the impugned judgment and order of conviction and sentence is not only erroneous and illegal, but unwarranted on the following grounds: (i) There is no demand at all. (ii) The accused had never talked with the complainant for demanding the amount. (iii) The trial Court has determined the point No. 2 regarding commission of offence under Sec. 7 of the Act in negative. (iv) There is no evidence to confirm that appellant-accused has accepted or obtained or agreed to accept or obtain from the complainant, the amount as illegal gratification or as other than legal remuneration, for each other and for extending the facility or showing favour or disfavour to the complainant. (v) The trial Court has though decided the point No. 3 regarding acceptance of bribe, considered that there is proof to punish the appellants under Sec. 15 of the Act, though there was no evidence to prove any such activity by the accused No. 1 so as to prove either demand or acceptance or agreement for demand and acceptance of bribe. Whereas so far as accused No. 2 is concerned, acceptance of money by him was towards his legal fees. (vi) In fact, the complainant was not knowing the accused No. 1 at all and called upon accused No. 2. Therefore, also there is no question of admission or acceptance of illegal gratification. It is also categorically stated by the complainant that the accused No. 1 has never demanded the amount. 13. Learned Advocate Mr. Anandjiwala has also rightly pointed out that the trial Court was probably prejudiced inasmuch as there is no law which confirms that the accused should be kept in police custody for 24 hours, and thereby, if the accused No. 1 has produced the brother of the complainant before the Court on the same day, it cannot be presumed that she must have demanded illegal gratification. The other observation made by the trial Court that when the accused No. 1 has allowed the accused to call for the Advocate, she must have accepted the bribe. This is also not cogent evidence or relevant circumstance to presume the demand and acceptance of bribe, more particularly when the accused No. 1 has never demanded or accepted it. 14. Inquiry by the Advocate that have you brought money also does not prove the illegal demand because the Advocate would certainly entitle to ask for money for rendering his services. 15. In fact, the trial Court has misread the evidence before it and misinterpreted it, so also misinterpreted provisions of law for convicting both the accused. 16. The factual story has been misunderstood by the trial Court when it is stated by all the witnesses that when the complainant has offered the amount, instead of accepting the amount practically, the accused No. 1 has given sign as it is for the accused No. 2 and not for her. Therefore, only because the accused No. 1 has indicated that legal fees are to be paid to the accused No. 2, it cannot be presumed that it was a sign that illegal gratification on her behalf is to be paid to the accused No. 2. Similarly, such act cannot be considered as a proof of mens-rea, as observed by the trial Court. 17. Similarly, such act cannot be considered as a proof of mens-rea, as observed by the trial Court. 17. In general, the overall scrutiny of evidence does not confirm that there is sufficient and cogent evidence against appellants - accused so as to confirm conviction as awarded by the impugned judgment, even if we consider the provisions of the presumption, both under the Act and under the Evidence Act. The reading of the impugned judgment also does not give any confidence so as to confirm the same in view of above discussion. Therefore, when the judgment cannot sustain, it would result into setting aside conviction and sentence imposed by such judgment. 18. In view of the above facts, circumstances and discussion, the appeals are allowed. Thereby the conviction and sentence imposed by the impugned judgment are quashed and set aside. The appellant in Criminal Appeal No. 1033 of 1993 - accused No. 2 is on bail, and hence, his bail-bond shall stand cancelled. Fine, if paid, be refunded to the appellants.