JUDGMENT : Z.K. Saiyed, J. 1. Mohanbhai Trikambhai Parmar, the appellant-original accused of Criminal Appeal No. 249 of 1999 and Kanaiyalal Bhagwandas Tekwani, the appellant-original accused - have preferred these appeals under Sec. 374 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 18-2-1999 passed by the learned Special Judge, Court No. 2, City Sessions Court, Ahmedabad, in Special (A.C.B.) Case No. 17 of 1994, whereby, the learned Special Judge has convicted the accused No. 1 for the offence punishable under Sec. 7 read with Sec. 12 of the Prevention of Corruption Act and sentenced him to undergo S.I. for 6 (six) months and to pay a fine of Rs. 500/-, in default, to undergo further S.I. for 2 (two) months. He is also convicted for the offence punishable under Sec. 13(1)(d) read with Sec. 13(2) of the Prevention of Corruption Act and sentenced to undergo S.I. for 1 (one) year and to pay a fine of Rs. 500/-, in default, to undergo further S.I. for 2 (two) months. The accused No. 2 is convicted for the offence punishable under Sec. 7 read with Sec. 12 of the Prevention of Corruption Act and sentenced him to undergo S.I. for 6 (six) months and to pay a fine of Rs. 500/-, in default, to undergo further S.I. for 2 (two) months. He is also convicted for the offence punishable under Sec. 13(1)(d) read with Sec. 13(2) of the Prevention of Corruption Act and sentenced to undergo S.I. for 1 (one) year and to pay a fine of Rs. 500/-, in default, to undergo further S.I. for 2 (two) months. The learned Judge has ordered the substantive sentences to run concurrently. As both the appeals arise out of the same Special Case, the same are heard together and disposed of by this common judgment. 2. The brief facts of the prosecution case are as under: "One Tulsiram Chenaji Marwadi Chauhan - complainant, residing at Thakkar Nagar, Ganga Nagar Society near Kevdani Juni Chali, Saijpur Bogha, Ahmedabad gave complaint on 2-11-1993 before Police Inspector, A.C.B., Ahmedabad city that he is serving in Aastik Textile Mill near India Colony. He owns four houses in Ganganagar Society. In one house bearing No. S-331-351-00-001-F/214, the complainant is residing. The Municipal Corporation has assessed the tax at Rs. He owns four houses in Ganganagar Society. In one house bearing No. S-331-351-00-001-F/214, the complainant is residing. The Municipal Corporation has assessed the tax at Rs. 396/- which is very reasonable and that he is paying regularly in the Saipur Bogha Office. House bearing No. S-331-351-00-002-D/215 for which the assessment for the year 1991-1992 to 1993-1994 came to Rs. 3,773/-, one Shantaben Hansaji was residing at the monthly rent of Rs. 25/- to whom the property is sold before six months and for which the sale-deed is executed in the month of October, 1993. In third house one tenant by named Ramsingh was residing and in the fourth house earlier one tenant was residing and at present the complainant's son by named Pravinkumar Tulsiram is residing. In the last three houses as referred above, the yearly assessment was Rs. 1,675/-. In Small Causes Court, Ahmedabad, Valuation Appeal No. 10728 of 1992 was filed for the last three houses bearing Nos. 215, 216 and 217. The judgment of the aforesaid Valuation Appeal was rendered on 19-7-1993 to give permanent effect. As per the judgment, the application was made to the Assessor and Tax Collector. As per the judgment for each house the tax was fixed at Rs. 300/-." 3. According to the complainant, on 1-11-1993, he went to the office of the Tax Department at Saijpur Bogha and met one Inspector Shri Mohanbhai Parmar-accused No. 1 and outdoor clerk Mr. Kanaiyalal Tekwani - accused No. 2 and after referring the appeals and the judgment of the Small Causes Court, they told the complainant that for three houses total sum of Rs. 1,500/- for the year 1993-1994 as well as for the year 1991-1992 and 1992-1993, the same tax will have to be paid. On request to Mohanbhai Parmar, the complainant was told to give permanent effect to the judgment of Small Causes Court he will have to pay Rs. 1,000/-. Clerk Mr. Tekwani told the complainant that he will prepare his file accordingly. Thereupon, the complainant told them that he will manage for the amount. So both the aforesaid persons told the complainant to come on the next day i.e. on 2-11-1993 together with tax amount of Rs. 1,500/- and additional amount of Rs. 1,000/- towards their expenses. On 2-11-1993, the complainant went with Rs. Thereupon, the complainant told them that he will manage for the amount. So both the aforesaid persons told the complainant to come on the next day i.e. on 2-11-1993 together with tax amount of Rs. 1,500/- and additional amount of Rs. 1,000/- towards their expenses. On 2-11-1993, the complainant went with Rs. 1,500/- to pay the bill amount, but he was not willing to pay the amount of bribe. He also requested Police Inspector, A.C.B. that as he is not having Rs. 1,000/- to pay to the accused for illegal gratification, Government may arrange for the above amount. The complainant further revealed that he is not having financial transaction with either Mohanbhai Parmar or Mr. Tekwani. Hence, the said complaint was lodged. 4. On receipt of the complaint of Mr. Tulsiram, the services of two panchas were requisitioned from the office of the Director of Horticulture, Gujarat State, Ahmedabad, and when the said panchas arrived at A.C.B. office, they were explained the contents of the complaint lodged by the complainant. The complainant was asked to produce the currency notes of Rs. 1,000/-. As he was not having the same, he requested for the Government money, Thereupon, 10 currency notes of Rs. 100/- each were produced by Police Inspector, A.C.B. The numbers of these currency notes were noted in the first part of the panchnama. The lamp operator P.C. Ambalal K. Patel was then called who explained the characteristics of anthracene powder to the complainant and the two panchas. The currency notes were first seen in the common day light and thereafter anthracene powder was applied on the currency notes. When the currency notes were seen in the light of ultraviolet lamp, marks of anthracene powder were seen. Thereafter, the currency notes were put in the left hand side pocket of shirt of the complainant, A.C.B. - P.I. Mr. A.A. Khan instructed the complainant not to touch or take out the currency notes unless the same were demanded by the accused. Mr. Khan, P.I. also instructed panch No. 1-Bashiruddin Kamruddin Saiyed to accompany the complainant and hear the conversation that may take place between the complainant and the accused. Panch No. 1 was also instructed to observe the passing of currency notes by the complainant to the accused. Mr. Khan, P.I. also instructed panch No. 1-Bashiruddin Kamruddin Saiyed to accompany the complainant and hear the conversation that may take place between the complainant and the accused. Panch No. 1 was also instructed to observe the passing of currency notes by the complainant to the accused. The complainant was instructed by P.I. to go to the Tax Department office at Saijpur Bogha and meet Tax Inspector Shri Mohanbhai Parmar and outdoor clerk Mr. Tekwani and to talk with them for the payment of taxes and in case either of the accused demands the amount of bribe then to pay the amount from the upper portion of shirt wherein the amount of Rs. 1,000/- smeared with anthracene powder was placed. After payment of such bribe amount he was told to come out from the office and to give usual sign. Panch No. 2 and other A.C.B. staff were instructed by Mr. Khan, P.I. to follow the complainant and panch No. 1 and to be in the vicinity in a hidden position around the tax office. Thus, in the office of the A.C.B. first part of the panchnama was completed and signature of two panchas were obtained. Thereafter the members of the raiding party along with the complainant and two panchas went by the Government Jeep Car towards Saijpur Bogha Tax Department Office. The Jeep Car was stopped near Saijpur Fadheli Primary School. All the occupants alighted from the jeep car. When the complainant and panch No. 1 went towards the regional office of Tax Department of A.M.C. Panch No. 2, Police Inspector Mr. Khan and other staff members of raiding party followed the complainant and Panch No. 1 and took their hidden position near the slanting area of Tax Department Office. The complainant and panch No. 1 went inside the office of the accused and inquired about Mohanbhai Parmar from one employee who asked that why he had come? The complainant replied that he had come to pay taxes. By that time, Clerk Mr. Tekwani came to whom the complainant told that he has to pay taxes. Thereupon, Mr. Tekwani wrote Rs. 700/- on one tax bill and Rs. 400/- on remaining two tax bills and made initial and told the complainant to go to the cashier and pay the tax amount. Thereupon, the complainant went to the cashier and paid the taxes as per the endorsement of Mr. Thereupon, Mr. Tekwani wrote Rs. 700/- on one tax bill and Rs. 400/- on remaining two tax bills and made initial and told the complainant to go to the cashier and pay the tax amount. Thereupon, the complainant went to the cashier and paid the taxes as per the endorsement of Mr. Tekwani and obtained the receipts. Thereafter, the complainant returned to Mr. Tekwani and asked what amount is necessary for filing the application wherein tenant Shantaben was residing. To this Mr. Tekwani told him that as per the procedure, he will have to write to the H.O. and finish his case as early as possible. Mr. Tekwani further told that he is required to visit his house and finalise the assessment of the tax and he need not come again. Thereupon, the complainant and panch No. 1 came out from the office and went towards the Government vehicle. Panch No. 2 and members of the raiding party also followed them. Panch No. 1 narrated the whole story to the Police Inspector, A.C.B. and complainant also stated that at that time there was no chance of demanding the bribe amount, and accordingly, to trap the accused in accepting the bribe amount failed and ultimately the amount of Rs. 1,000/- which was with the complainant was put in a blank paper and the complainant was told that in case in future if the accused demand the illegal amount of bribe, he may come again to the A.C.B. Office. Thereafter, the second part of the panchnama was completed at the A.C.B. office on 2-11-1993 duly signed by two panchas as well as by Mr. Khan, the Police Inspector, A.C.B. Mr. Khan. The panchnama of 2-11-1993 is on record at Exh. 20. 5. Thereafter, the charge was framed against the appellants to which the appellants-accused pleaded not guilty and claimed to be tried. 6. Thereafter, prosecution has examined witnesses. The prosecution has produced documents and real evidence/muddamal. The accused has also produced documents. 7. After prosecution evidence was over, further statement under Sec. 313 of Criminal Procedure Code was recorded of the accused. The accused had also submitted written explanation. 8. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment, convicted the appellants-accused. 9. The accused has also produced documents. 7. After prosecution evidence was over, further statement under Sec. 313 of Criminal Procedure Code was recorded of the accused. The accused had also submitted written explanation. 8. At the conclusion of trial and after appreciating the oral as well as documentary evidence, the learned Judge vide impugned judgment, convicted the appellants-accused. 9. Being aggrieved by and dissatisfied with the said judgment and order of conviction dated 18-2-1999 passed by the learned Special Judge, Court No. 2, City Sessions Court, Ahmedabad, in Special (A.C.B.) Case No. 17 of 1994, the appellants-accused have preferred the present appeals before this Court. 10. Heard Mr. J.M. Panchal, learned Counsel for the appellant in Criminal Appeal No. 249 of 1999 and Mr. K.B. Anandjiwala, learned Counsel for the appellant in Criminal Appeal No. 252 of 1999. 11. Mr. J.M. Panchal, learned Counsel for the appellant-accused No. 1 has read the charge and contended that it is the duty of the prosecution to prove the said allegation made in the charge. He has submitted that as per the evidence produced on record through oral and documentary evidence, the prosecution could not prove its case beyond reasonable doubt, yet the learned Judge has convicted the appellants. He has further drawn the attention of the Court to charge Exh. 4 and contended that in the charge at Para 1 it is specifically observed by learned Judge that, "you accused Nos. 1 and 2 demanded Rs. 1,000/- as bribe for taking decision and bearing effect on permanent basis in connection with assessment file of the complainant" and in that connection specific word used by the learned Judge that, "you accused made demand of illegal gratification of Rs. 1,000/-." Mr. Panchal has contended that prosecution was not clear from the preliminary stage of the case and even in charge also prosecution has never bothered to draw the attention of the learned Judge to say that actual demand was made by which accused. Mr. Panchal has contended that it was the duty of the prosecution to establish initially when the charge was framed against the accused, to show that for the offence punishable under Secs. 7 and 13 of the Prevention of Corruption Act actual demand was made by the accused and in the result of that demand, bribe amount was accepted by him. Panchal has contended that it was the duty of the prosecution to establish initially when the charge was framed against the accused, to show that for the offence punishable under Secs. 7 and 13 of the Prevention of Corruption Act actual demand was made by the accused and in the result of that demand, bribe amount was accepted by him. He has contended that in absence of said actual demand his client i.e. accused No. 1 cannot be convicted for the said offence. 12. He has contended that the prosecution has examined P.W. No. 1 - Tulsiram Chenaji Marwadi Chauhan. He has referred to the specific date 31-11-1993' mentioned by the complainant at Para 1 wherein it is stated by the complainant that on the said date he went to the office of the appellants-accused and met accused No. 2. He has further stated that accused No. 1 was sitting near accused No. 2 and he made some talk with accused No. 2 regarding tax amount of the complainant. Mr. Panchal has drawn attention of the Court to the said date of 31-11-1993 i.e. the date of visit of the complainant at the office of the accused and contended that at the time of the meeting of complainant with accused No. 2, accused No. 1 was not present. 13. Mr. Panchal has read the evidence of the complainant from Para 8 of the cross-examination, wherein it was disclosed by him that sitting arrangement and table of Mohanbhai Parmar and Tekwani are different. In between their table, other two tables are there. Mohanbhai Parmar is sitting in front of the entrance whereas Tekwani is sitting on right hand side of the entrance. He has contended that when this fact is disclosed by P.W. No. 1 in the cross-examination it was the duty of the prosecution to establish the presence of the accused No. 1 which can be proved through oral version of the complainant to show that when he had talked with accused No. 2 and when demand was made by him, at that time, accused No. 1 was present. He has contended that in absence of accused No. 1 if some demand may be made by someone then agreement, knowledge and collusion between the absent person and maker of demand should be established beyond reasonable doubt. He has contended that in absence of accused No. 1 if some demand may be made by someone then agreement, knowledge and collusion between the absent person and maker of demand should be established beyond reasonable doubt. He has contended that in the present case when presence of the accused No. 1 is not established at the time of making of demand, then, it is required to be considered that in absence of knowledge when some action is shown by that person then it cannot be considered that it was offered under particular knowledge. He has contended that as per Para 9 of the cross-examination of P.W. No. 1, he went to tax office on 31-11-1993. It is denied by him that he went to office on 1-11-1993. He has also denied that he does not know the designation of Shri Tekwani. Mr. Panchal has drawn attention of the Court to Para 9 of the cross-examination of the complainant and contended that as per say of the complainant the aforesaid talk took place between complainant and accused No. 2 between 12-00 to 1-00 at noon and the complainant went to the office of A.C.B. on 1-11-1993 between 11-00 to 12-00. He has further drawn the attention of the Court to Para 4 of the complaint at Exh. 18 and contended that date of complaint is shown as 1-11-1993 and it is disclosed by him that on the said date he visited Saijpur Bogha Municipal Tax Office and met with accused Nos. 1 and 2. He has contended that evidence of the complainant produced on record is under cloud and he cannot establish that in connection with the same demand was made by accused No. 2. 14. Mr. Panchal has contended that it is disclosed by this witness in his evidence that on 2-11-1993 panchas were not called at A.C.B. Office. He has drawn attention of the Court to the first part of the panchnama and contended that they were called at A.C.B. office on 2-11-1993. He has contended that present complainant has deposed before the learned Judge totally in negative manner contrary to the panchnama and facts of the complaint. He has further read Exh. He has drawn attention of the Court to the first part of the panchnama and contended that they were called at A.C.B. office on 2-11-1993. He has contended that present complainant has deposed before the learned Judge totally in negative manner contrary to the panchnama and facts of the complaint. He has further read Exh. 22, part of the panchnama and contended that in panchnama it is disclosed by the panchas that when revenue stamp was affixed and when signatures were obtained and it was returned to the complainant and at that time the complainant and panch No. 1 again went to accused No. 2 and it was asked by him about the tax in case of Hansaji's house for which in the year 1993-1994 objection application was given by him. The accused No. 2 replied that as per the procedure of the office he will send the application to head office and he will finish his work. In reply to that the complainant told him that, this amount would be utilized by him at the time when he demands and so how can he bring that amount. The accused No. 2 told him that he will visit his house and then tax will be assessed and now he cannot come again. This evidence shows that even at the time of meeting, no demand was made by accused No. 2. 15. Mr. Panchal has contended that as per the evidence of the complainant at Para 10 he was advised by Trapping Officer Mr. Khan that he has to come on 22-11-1993 between 12-00 to 1-00 noon at A.C.B. Office. He has contended that under which circumstances and for what purpose Mr. Khan, Trapping Officer has called him on the said day was not known to the complainant. He has contended that between that period no agreement was arrived at between the accused persons and complainant. Even no talk took place for second visit of the complainant to that office and he has raised an issue that on 2-11-1993 how the Trapping Officer has fixed the date for second trap of 22-11-1993. He has further contended that the conduct of the Trapping Officer is totally biased. He has contended that from the conduct of the Trapping Officer it is prima facie established that the said trap was concocted trap which is proved beyond reasonable doubt. He has further contended that the conduct of the Trapping Officer is totally biased. He has contended that from the conduct of the Trapping Officer it is prima facie established that the said trap was concocted trap which is proved beyond reasonable doubt. He has contended that after the instruction given by Mr. Khan at round about 2-40 they departed from the place. To a question in the cross-examination put by learned Counsel for the accused, in reply, the complainant has stated that it is not true that at 6-00 O'clock he departed from the place. Mr. Panchal has drawn attention of the Court to the panchnama and contended that time of the departure shown in the panchnama is 6-00 p.m. He has contended that it is further established that present complainant is a liar and he is an interested witness and due to unknown animosity with the accused persons he has disclosed false contents before the learned Judge. He has read question put to this witness in Para 11 of the cross-examination, that on 2-11-1993 whether panch was with him or not. He replied that it is not within his knowledge. As per documentary evidence it is established that panch was present with him. He has drawn attention of the Court to the name of panchas who were present at the first trap and again he has read names of the panchas from the second panchnama and contended that panch No. 1 was the same person who was panch in first 'fail trap'. He has read evidence of the complainant and contended that panch No. 1 when entered into office of the accused, at that time, accused No. 1 was present and he inquired from him about Mr. Tekwani. In reply, accused No. 1 told him that accused No. 2 is on half day leave. The complainant told him that unnecessarily he is moving for the tax issue in this office, and requested to finish his work of tax bill. The accused No. 1 told him that he has to visit his house and he has to verify that whether there is any tenant or not. The complainant told him that unnecessarily he is moving for the tax issue in this office, and requested to finish his work of tax bill. The accused No. 1 told him that he has to visit his house and he has to verify that whether there is any tenant or not. In reply, the complainant told the accused No. 1 that he has already talked with accused No. 2 and that he has come with the amount and he asked accused No. 1 whether the amount can be accepted in the office or outside the office. Mr. Panchal has contended that from the evidence of the witness, it is required to be considered in light of Sec. 7 of the Prevention of Corruption Act that when the above dialogue took place between the complainant and accused No. 1 in the presence of panchas, whether demand was made by the accused No. 1 before the complainant and whether demand is established. Mr. Panchal has contended that prosecution could not prove that through accused No. 1 demand is proved at the time of meeting with the complainant. He has contended that when demand is not proved beyond reasonable doubt then question of presumption and question of acceptance cannot arise. 16. Mr. Panchal has read Para 12 of the cross-examination of the complainant and contended that this witness has disclosed that he was instructed by the Trapping Officer that when the amount is accepted by anyone then signal is to be given. He has contended that how the Trapping Officer was knowing that amount of trap will be accepted by the accused No. 1 not inside the office but near the lavatory. He has read contents of panchnama Exhs. 20 and 21 and contended that contents of the panchnama is the picture of reliability of the prosecution case which is registered for the offence under provisions of Prevention of Corruption Act. 17. Mr. Panchal has read evidence of P.W. No. 2 who is examined at Exh. 19 and contended that this witness is a public servant and on oath he has disclosed before the learned Judge regarding contents of both the panchnama. 17. Mr. Panchal has read evidence of P.W. No. 2 who is examined at Exh. 19 and contended that this witness is a public servant and on oath he has disclosed before the learned Judge regarding contents of both the panchnama. He has read relevant Para 3 of the evidence and contended that when members of raiding party, panchas and complainant reached the office of the accused persons, at that time, the complainant entered the office accompanied by panch No. 1 - P.W. No. 2, at that time, accused No. 1 was present and the complainant inquired about accused No. 2 and asked him where was Mr. Tekwani. Thereupon, accused No. 1 replied that, what was the work. The accused No. 1 told the complainant to wait for some time. During this time, Mr. Tekwani came and occupied his seat. Mr. Panchal has contended that from me said conversation no demand can be said to have been established. He has read the evidence and contended that amount of tax was paid, and therefore, trap was failed and 'nil' panchnama was drawn up. He has contended that on 22-11-1993 after 20 days again trap was carried out. He has read Para 5 of the evidence of the P.W. No. 2 and contended that as per the evidence when the complainant and panch went to the office of the accused, at that time, accused No. 1 was present and the complainant asked about Mr. Tekwani and in reply to that accused No. 1 told that Mr. Tekwani was on half day leave. Therefore, if from the above, it is clear that the accused No. 1 did not make any demand and on the contrary, the complainant told that he was required to pay some amount to the accused No. 2 which the accused No. 1 accepted as the accused No. 2 was on half day leave. 18. Mr. Panchal has read the evidence of panch witness No. 2 who is an independent witness and public servant. This witness has not disclosed that demand was made by accused No. 1 in his presence. He has contended that from this evidence also prosecution could not prove that demand is proved beyond reasonable doubt. 19. Mr. Panchal has read Para 2 of evidence of Trapping Officer -P.W. No. 3 who is examined at Exh. This witness has not disclosed that demand was made by accused No. 1 in his presence. He has contended that from this evidence also prosecution could not prove that demand is proved beyond reasonable doubt. 19. Mr. Panchal has read Para 2 of evidence of Trapping Officer -P.W. No. 3 who is examined at Exh. 27 and contended that at the time of first panchnama which was over as a result of failed trap, complainant was instructed and advised by this witness that in the event, second demand may arise then he can contact A.C.B. Office. He has contended that there was no demand made by any accused on 2-11-1993, yet in advance, Trapping Officer has advised the complainant to come before him on 22-11-1993. He has contended that the conduct of the Trapping Officer shows that he is biased and only to gain goal to show that trap is successfully carried out by him, the concocted story was developed by the Trapping Officer and when demand was not proved then only on the ground of acceptance, the Trapping Officer has filed charge-sheet against both the accused persons. He has read the provisions of Secs. 7, 12 and 13 of the Prevention of Corruption Act and contended that when the demand is not proved then it was the duty of the Trapping Officer at the time of finishing panchnama to submit report under Sec.169 of the Criminal Procedure Code. He has contended it was not considered and was not followed by the Trapping Officer. He has read the list of documents of the prosecution and contended that as per the say of the Trapping Officer prosecution has not produced any additional complaint on record. He has contended that as per evidence of this witness, it is disclosed by him that on additional complaint signature of panchas were obtained, one panch has never disclosed that second complaint was read over before him and they have made signature on additional complaint. 20. Mr. Panchal has read Para 53 of the judgment and contended that learned Judge has observed that from Sec. 13 of the Prevention of Corruption Act, it is crystal clear that presumption under Sec. 20 of the Prevention of Corruption Act is only applicable to clauses (a) and (b) of Sec. 13(1) and not clause (d) of Sec. 13(1). 20. Mr. Panchal has read Para 53 of the judgment and contended that learned Judge has observed that from Sec. 13 of the Prevention of Corruption Act, it is crystal clear that presumption under Sec. 20 of the Prevention of Corruption Act is only applicable to clauses (a) and (b) of Sec. 13(1) and not clause (d) of Sec. 13(1). He has contended that learned Judge has wrongly considered the facts of the case and on the ground of presumption convicted both the accused. He has contended that when the demand is not proved beyond reasonable doubt, then acceptance or recovery of amount from possession of any accused cannot be considered. 21. Mr. Panchal has contended that if the prosecution wants to prove provisions of Sec.12 of the Prevention of Corruption Act then ingredients of Secs. 107 and 108 of the Indian Penal Code should be established and it should be proved through oral evidence of the complainant as well as panchas. He has contended that prosecution could not produce a single iota of evidence in connection with the ingredients of Secs. 107 and 108of the Indian Penal Code. Lastly, he has contended that prosecution has failed to prove its case against both the accused persons. He has prayed that the judgment and order of the trial Court deserves to be quashed and set aside. 22. Mr. K.B. Anandjiwala, learned Counsel appearing for the accused No. 2 has argued on the same line as Mr. Panchal. He has contended that at the event of trap accused No. 2 was never present at the place of offence. Even in the first meeting also the accused No. 2 has not made any demand from the complainant. He has contended that there was no understanding or agreement between accused Nos. 1 and 2. He has contended that accused No. 2 has never conveyed to accused No. 1 that he has already talked with the complainant and agreement was shown to him that he will accept illegal gratification. He has contended that against the accused No. 2 prosecution could not prove single allegation, and therefore, learned Judge should have acquitted the accused No. 2. He has drawn attention of the Court to the provisions of Sec. 20 of the Act and contended that presumption is required to be drawn against both the appellants. He has contended that against the accused No. 2 prosecution could not prove single allegation, and therefore, learned Judge should have acquitted the accused No. 2. He has drawn attention of the Court to the provisions of Sec. 20 of the Act and contended that presumption is required to be drawn against both the appellants. He has contended that in the present case no demand is proved. He has, therefore, prayed that the judgment and order of the trial Court deserves to be quashed and set aside. 23. Heard Mr. H.S. Soni, learned A.P.P. for the respondent State. He has contended that criminal misconduct of both the accused is proved by the prosecution evidence. He has read contents of the complaint and contended that accused No. 2 made demand of illegal gratification though he was a public servant, but when prosecution has proved its case by cogent evidence, there is no question of disbelieving the same. He has further contended that the offence under provisions of Secs. 7 and 13 of the Prevention of Corruption Act is proved beyond reasonable doubt through oral version of the witnesses and documents. He has further contended that as per the evidence of P.W. Nos. 1 and 2 sitting arrangement of accused No. 2 was just near the accused No. 1 and accused No. 1 was knowing that originally demand was made by accused No. 2 for illegal gratification and in result of that demand, when complainant came to the office of the accused, it was accepted by accused No. 1 and that conduct of the accused No. 1 is required to be considered that there was understanding and agreement, and therefore, bribe amount was accepted by him. 24. Mr. Soni has contended that the learned Judge has rightly believed the evidence of the complainant whereby he has stated that who has made demand and to whom he has given bribe amount. He has contended that there is ample direct and indirect evidence to connect the appellants-accused with the crime. The learned Judge has properly appreciated the evidence of the complainant as well as oral evidence of panchas. From the oral evidence of the complainant and the panchas the demand and acceptance of the bribe is proved beyond reasonable doubt. 25. Mr. Soni has read complaint Exh. The learned Judge has properly appreciated the evidence of the complainant as well as oral evidence of panchas. From the oral evidence of the complainant and the panchas the demand and acceptance of the bribe is proved beyond reasonable doubt. 25. Mr. Soni has read complaint Exh. 18 and contended that looking to the contents of the complaint, demand and acceptance of illegal gratification is proved beyond reasonable doubt. He has contended that there is nothing on record to show that complainant had any enmity with the present appellants. He has read Sec. 8 of the Evidence Act, and contended that the act of the present appellants is voluntary. He has contended that so far as credibility of panch witness Bashiruddin Kamruddin is concerned, at the relevant time, he was a Senior Clerk in Horticulture Department. This panch witness has stated what transpired on 2-11-1993 in his presence and in presence of another panch witness, namely, Mr. Pandya who was also serving with him at the relevant time. He has contended that in both the panchnamas at Exhs. 20 and 22 the panch witness has identified his signature along with respective panchas and the signature of the I.O. He has contended that this panch has, in clear terms, stated what transpired between accused persons and complainant and how money changed the hands in his presence. This panch is a witness to the experiment done by the Police Constable of A.C.B. on both the occasions and more particularly when the bribe amount was recovered from the right side pocket of the pant of accused No. 1 - by himself. When such currency notes were taken out from the pocket of accused No. 1, under ultra violet lamp the currency notes as well as hands of panch No. 1 were found to have smeared with anthracene powder. He has contended that inner side and upper border of right side pocket of the pant of accused No. 1 were also found containing white shining marks of anthracene powder. He has contended that panchas were called from the distant place, and therefore, there is no question of influence of A.C.B. Office. He has contended that inner side and upper border of right side pocket of the pant of accused No. 1 were also found containing white shining marks of anthracene powder. He has contended that panchas were called from the distant place, and therefore, there is no question of influence of A.C.B. Office. He has contended that though allegations have been made against the panchas as well as against the I.O. that they were known to each other, nothing has come on record about their intimacy, and therefore, there is no question of doubting the credibility of deposition of panch No. 1. 26. Mr. Soni has contended that from the hands of the present appellants-accused, anthracene powder was found and the appellants have failed to explain the same in their statement recorded under Sec. 313 of the Code as to how the anthracene powder was found from their hands. He has contended that from the contents of the documents produced on record and from the cross-examination of the complainant, the appellants have not proved that demand was not made by them and amount was not accepted by them. Looking to the contents of panchnama, the same is proved beyond reasonable doubt through oral evidence. He has read oral version of the panch witness and contended that from the oral version of this witness, demand made by the present appellants is proved beyond reasonable doubt. 27. Mr. Soni has also contended that looking to the facts of the case presumption under Sec. 20 of the P.C. Act is required to be drawn against the present appellants-accused. Section 20 of the P.C. Act reads as under: "20. Presumption where public servant accepts gratification other than legal remuneration - (1) Where, in any trial of an offence punishable under Sec. 7 or Sec. 11 or clause (a) or clause (b) of sub-sec. Section 20 of the P.C. Act reads as under: "20. Presumption where public servant accepts gratification other than legal remuneration - (1) Where, in any trial of an offence punishable under Sec. 7 or Sec. 11 or clause (a) or clause (b) of sub-sec. (1) of Sec. 13, it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Sec. 7 or as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under Sec. 12 or under clause (b) of Sec. 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Sec. 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-secs. (1) and (2), the Court may decline to draw the presumption referred to in either of the said sub-secs., if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn." 28. Mr. Soni has read judgment and order passed by the Apex Court in Criminal Appeal Nos. 97 and 98 of 2012 (reported in 2013 (1) GLR 1 (SC)], and contended that the Apex Court has also held that as per Sec. 20 of the Prevention of Corruption Act, presumption is required to be drawn in such type of cases. 29. Mr. Soni has relied on the decision of this Court in the case of Panchanbhai Nanjibhai Kantaria v. State of Gujarat, reported in 2011 (3) GLR 2017 . 29. Mr. Soni has relied on the decision of this Court in the case of Panchanbhai Nanjibhai Kantaria v. State of Gujarat, reported in 2011 (3) GLR 2017 . He has read decision of this Court and contended that even if evidence of complainant is totally doubtful, evidence of panch witness who had accompanied complainant during trap is sufficient to prove 'demand and acceptance of bribe by accused. The evidence of the panch witness who is a public servant and who has no animosity against the accused cannot be ignored unless something adverse is brought out by defence in his cross-examination. 30. Mr. Soni has relied on the decision of this Court in the case of Narendra Champaklal Trivedi with Harjibhai Devjibhai Chauhan v. State of Gujarat, reported in 2013 (1) GLR 1 (SC). He has read Paras 17, 23 and 24 of the decision and contended that it is the duty of the accused to rebut presumption by bringing on record some evidence that money was accepted other than for the motive or reward as stipulated in Sec. 7. The Court has to consider explanation offered by accused on 'preponderance of probability'. The same is not required to be proved beyond reasonable doubt. 31. He has relied on the decision of the Apex Court in the case of State of Uttar Pradesh v. Krishna Master, reported in 2010 (12) SCC 324 and contended that if there appears to have a ring of truth, then discrepancies, inconsistencies, infirmities or deficiencies of minor nature not touching core of the case cannot be ground for rejecting the evidence. The Court should not adopt a hyper-technical approach. It is observed by the Apex Court that when such witness is subjected to gruelling cross-examination for several days, some inconsistencies or discrepancies may occur in his statement which are not significant to discredit his evidence. He is not expected to have exact sense of time or remember every detail of the incident and state with precision entire chain of events after a lapse of time. 32. Mr. Soni has read further statement of the appellants-accused recorded under Sec.313 of the Code and contended that presence of the anthracene powder found from the hands of the appellant is not explained by the appellant-accused. It is the duty of the appellant to rebut the presumption under Sec. 20 of the Prevention of Corruption Act. 32. Mr. Soni has read further statement of the appellants-accused recorded under Sec.313 of the Code and contended that presence of the anthracene powder found from the hands of the appellant is not explained by the appellant-accused. It is the duty of the appellant to rebut the presumption under Sec. 20 of the Prevention of Corruption Act. In support of his contention, he relied on the decision in the case of Balasubramanian v. State through Inspector of Police, reported in 2011 (1) GLR 739. He has contended that sufficient opportunity was given to the appellants to explain the evidence against them after the prosecution witnesses are examined and no explanation is given about the trap amount recovered from the possession of the present appellants in further statement under Sec. 313 of the Code. 33. I have heard the learned Counsel for the respective parties and perused the papers produced before me. I have also considered the submissions advanced by the learned Counsel for the rival parties. I have gone through the impugned judgment and order passed by the learned Judge and oral as well as documentary evidence produced on the record. I have read the oral evidence of the prosecution witness-complainant and also perused the charge framed against the appellants. 34. For the offence punishable under the provisions of the Prevention of Corruption Act, three main ingredients i.e. demand, acceptance and recovery are required to be proved beyond reasonable doubt by the prosecution. In the present case, no doubt, learned A.P.P. Mr. Soni has contended at length that prosecution has proved its case beyond reasonable doubt through oral version of the P.W. No. 1 and Trapping Officer. As per evidence of the P.W. No. 1 the contents of facts of the case are disclosed in his examination-in-chief and from cross-examination, Mr. Panchal has read particular portion of the cross-examination of the P.W. No. 1. I have also perused the said oral evidence of the complainant which is produced on record in cross-examination of P.W. No. 1. It is true that contents of the cross-examination is produced totally in negative manner with the contents of panchnama as well as complaint. Now the question that arises for the discussion is demand. I have also perused the said oral evidence of the complainant which is produced on record in cross-examination of P.W. No. 1. It is true that contents of the cross-examination is produced totally in negative manner with the contents of panchnama as well as complaint. Now the question that arises for the discussion is demand. In fact, as per case of the prosecution originally demand was made by accused No. 2 and in result of that demand, amount of illegal gratification was accepted by accused No. 1 who is his colleague and Inspector of Tax Department. Now, for acceptance of the illegal gratification in connection with demand made by accused No. 2 whether it was within the knowledge of accused No. 1 or not is an important issue. From the evidence of the P.W. No. 1, it is disclosed by him that when he approached accused No. 1 at his office at that time demand was made by the accused No. 1, but in cross-examination it is proved beyond reasonable doubt that it was asked by the complainant to clear the issue of tax of his house because unnecessarily he was visiting the office from time to time and in reply to that accused No. 2 told him that as per rules he had to visit house of the P.W. No. 1 and to verify that whether any tenant is living in the premises or not. The complainant was informed by accused No. 2 to deposit the tax amount and in result of that P.W. No. 1 has deposited full amount of the tax. As per the case of the prosecution Trapping Officer has summarily led the tap and in result of that trap, the amount of the illegal gratification as per the say of the prosecution was recovered from the possession of the accused No. 1 in light of evidence of P.W. No. 2 panch who is an independent witness and public servant. As per his say, main evidence was not disclosed by P.W. No. 1 regarding first trap which failed due to no demand made by any of the accused. As per his say, main evidence was not disclosed by P.W. No. 1 regarding first trap which failed due to no demand made by any of the accused. As per say of the P.W. No. 2 panch it was disclosed by him that at the time of first trap carried out by the Trapping Officer at the place of trap, none made any demand and panchnama was over and then trap amount was recovered from the complainant and Trapping Officer advised complainant to come again if any second demand is made by anyone. Looking to the conduct of the complainant, it is contended by Mr. Panchal and Mr. Anandjiwala that conduct of the complainant is required to be considered minutely. Mr. Panchal has contended that P.W. No. 1 is a liar. The contention of Mr. Panchal is required to be considered though the evidence of the P.W. No. 1 that whether he is making trustworthy, reliable and acceptable statement or not. I have compared the contents of the complaint as well as panchnama and evidence of the P.W. No. 2 - independent panch witness. It is true that complainant P.W. No. 1 has not disclosed the first trap in which no demand was made by any accused persons. In light of provisions of Sec. 8 of the Evidence Act, presumption is required to be drawn against the conduct of the P.W. No. 1. So far as evidence of demand is concerned, P.W. No. 1 has disclosed that at the time of second trap accused No. 2 was not present and when he approached the office of the Tax Department accused No. 1 was present. The accused No. 1 has verified the issue of tax amount, at that time, P.W. No. 1 asked about Mr. Tekwani and in reply to that accused No. 1 told that he was on half day leave. The P.W. No. 2 told the accused No. 1 that he has already talked with Mr. Tekwani, and therefore, requested to accept the amount and in view of that request made by P.W. No. 1 the accused No. 1, told him whether that amount can be accepted by him in the office or out of the office and P.W. No. 1 and accused No. 1 went outside the office and amount was accepted by accused No. 1 at the request of P.W. No. 1. Looking to the evidence of P.W. Nos. 1 and 2, the question of demand whether it was made by accused No. 1 or not and in light of contents of panchnama and evidence of P.W. Nos. 1 and 2 produced on record, no demand was made by accused No. 1 and at the request made P.W. 1 about he had talked with Mr. Tekwani the amount was accepted by him. 35. In view of above observation and evidence produced on record I am of the opinion that learned Judge has wrongly held that demand was made by both the accused and under presumption of Sec. 20 of the Act the learned Judge has held that both the accused have committed offence of Sec. 7 of the Act. I have minutely perused contents of complaint as well as evidence of P.W. No. 1 to examine whether first demand made by accused No. 2 is proved beyond reasonable doubt. I have minutely perused the cross-examination of P.W. No. 1. It appears from the cross-examination that P.W. No. 1 could not prove first demand made by accused No. 2. It is required to be noted here that non-disclosure regarding contents of first trap and in second trap absence of accused No. 2 shows that when the first demand is made by accused No. 2 from the complainant then at the time of first trap he must be present at the office. The conduct of the accused No. 2 shows that when he was absent in office at the time of first trap, then there was no agreement with P.W. No. 1 to accept the demand amount from him. Even as per evidence, the prosecution could not prove and establish that assurance was given by accused No. 2 to the complainant that he was agreeable to accept the illegal gratification in connection with the demand made by him. I have considered the evidence of the prosecution and so far as acceptance of gratification is concerned, it was not acceptable by accused No. 2 but was accepted by accused No. 1. Learned A.P.P. has tried to establish that demand is proved against accused No. 2 and he can be punished for the offence punishable under Sec. 7 of the Act. Learned A.P.P. has tried to establish that demand is proved against accused No. 2 and he can be punished for the offence punishable under Sec. 7 of the Act. But as observed above, I am of the opinion that first demand and second demand could not be proved through oral version of the P.W. Nos. 1 and 2, and therefore, prosecution has failed to prove that accused No. 2 has made demand of illegal gratification. 36. As regards presumption under Sec. 20 of the Prevention of Corruption Act, the same is reproduced herein-below: "20. Presumption where public servant accepts gratification other than legal remuneration:-- (1) Where, in any trial of an offence punishable under Sec. 7 or Sec. 11 or clause (a) or clause (b) of sub-sec. (1) of Sec. 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Sec. 7 or as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under Sec. 12 or under clause (b) of Sec. 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Sec. 7, or as the case may be, without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub-secs. (1) and (2), the Court may declined to draw the presumption referred to in either of the said subsection, if the gratification or thing aforesaid is, in its opinion so trivial that no inference of corruption may fairly be drawn." 37. Mr. (3) Notwithstanding anything contained in sub-secs. (1) and (2), the Court may declined to draw the presumption referred to in either of the said subsection, if the gratification or thing aforesaid is, in its opinion so trivial that no inference of corruption may fairly be drawn." 37. Mr. Soni, learned A.P.P. has argued at length as regards the conduct of the appellants-accused in light of Sec. 8 of the Evidence Act. Section 8 of the said Act is reproduced herein-below: "8. Motive, preparation and previous or subsequent conduct:-- Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or relevant fact. The conduct of any party, or of any agent to any party, to any suit or proceeding, in reference to such suit or proceeding, or in reference to any fact in issue therein or relevant thereto, and the conduct of any person an offence against whom is the subject of any proceeding, is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. Explanation 1:-- The word "conduct" in this Section does not include statements, unless those statements accompany and explain acts other than statements; but this explanation is not to affect the relevancy of statements under any other Section of this Act. Explanation 2:-- When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant." In the facts of the case, what is required to be judged in the present case is that as to whether "conduct of the appellants-accused" as envisaged under Sec. 8 of the Evidence Act goes against the appellants-accused from the evidence beyond reasonable doubt in light of Sec. 20 of the Act. I have minutely perused the oral evidence of the complainant and P.W. Nos. 1 and 2 and from the same it appears that demand and acceptance are not proved beyond reasonable doubt and recovery was made from the possession of the accused No. 1. 38. Mr. Soni has contended that criminal misconduct i.e. demand and acceptance of amount of illegal gratification is sine qua non for constituting an offence under provisions of Secs. 7 and 13 of the Prevention of Corruption Act. 38. Mr. Soni has contended that criminal misconduct i.e. demand and acceptance of amount of illegal gratification is sine qua non for constituting an offence under provisions of Secs. 7 and 13 of the Prevention of Corruption Act. But as per above observation, learned A.P.P. could not establish that criminal misconduct can be said to be committed by the appellants-accused, and therefore, presumption under Sec. 20 of the Act is required to be drawn against the appellants-accused. The present appellants-accused are convicted for the offence punishable under Sec. 7 of the Act for illegal gratification accepted by them. Section 7 of the Act is reproduced herein-below: "7. Public Servant taking gratification other than legal remuneration in respect of an official act:-- Whoever, being, or expecting to be a public servant accepts or obtains or agrees, to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavor to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government Company referred to in clause (c) of Sec. 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than 6 months but which may extend to 5 years and shall also be liable to fine. Explanations:-- (a) "Expecting to be a public servant". If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this Section. (b) "Gratification":-- The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) "Legal remuneration":-- The words "Legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the Organization, which he serves, to accept. (b) "Gratification":-- The word "gratification" is not restricted to pecuniary gratifications or to gratifications estimable in money. (c) "Legal remuneration":-- The words "Legal remuneration" are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the Organization, which he serves, to accept. (d) "A motive or reward for doing":-- A person who receives a gratification ' as a motive or reward for doing what he does not intend or he is not in a position to do, or has not done, comes within this expression. (e) Where a Public Servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this Section." 39. Learned Counsel for the appellants have drawn attention of the Court to the judgment of the Apex Court in the case of Hari Dev Sharma v. State (Delhi Administration), reported in AIR 1976 SC 1489 and other decision in the case of Subhash Parbat Sonvane v. State of Gujarat, reported in 2002 (2) GLH 654 (SC) : [2002 (3) GLR 2245 (SC)], and contended that when demand was not proved in both the cases appellants-accused were acquitted. In the present case also, demand is not proved by oral or documentary evidence of the prosecution and only recovery of the trap amount from possession of the accused No. 1 is not sufficient to held that prosecution has proved its case beyond reasonable doubt. The decisions in case of Jitendrakumar Jayantilal Dhruva v. State of Gujarat, reported in 2005 (3) GLR 2204 and Gopalbhai Oghadbhai Parekh v. State of Gujarat, reported in 2002 (1) GLR 89 , are with regard to drawing presumption under Sec. 20 of the Prevention of Corruption Act. As per law laid down by Apex Court, only condition for drawing the legal presumption under Sec. 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The Section does not say that the said condition should be satisfied through direct evidence. The only requirement is that it must be proved that the accused has accepted or agreed to accept the gratification. 40. The Section does not say that the said condition should be satisfied through direct evidence. The only requirement is that it must be proved that the accused has accepted or agreed to accept the gratification. 40. This Court has minutely perused evidence of P.W. Nos. 1, 2 and 3 and as per provisions of Sec. 20 of the Act so far as presumption is concerned, in number of cases, Apex Court has laid down that explanation should be given by the accused of said offence regarding recovery of the trap amount from possession of the accused persons. It is also observed that through explanation under of Sec. 313 cogent evidence is to be produced on record. In the present case P.W. Nos. 1, 2 and 3 were cross-examined by the defence side at length and in cross-examination they have explained that how that amount was accepted by accused No. 1 in absence of accused No. 2 and there was no demand made by either of the accused as disclosed in the cross-examination. In view of evidence produced on record by defence, I am of the opinion that Sec. 20 of the Act is already explained and cogent evidence is produced on record by both the appellants-accused. I do not agree with the contention of learned A.P.P. that both the appellants have not explained in their Sec. 313 statement and have not tried to rebut the presumption. Without demand and acceptance, criminal misconduct is sine qua non, but for requirement of Sec. 20 of the Act, first of all, it is the duty of the prosecution to establish that demand was made by accused No. 2 and it is not proved beyond reasonable doubt through oral version of witnesses and that trap amount was accepted by accused. In the present case, I have discussed at length that demand and acceptance are not proved beyond reasonable doubt and it is established that amount was given to accused No. 1 by P.W. No. 1 and on the request made by him it was accepted by accused No. 1. It is also prima facie established on record that it was not in knowledge of accused No. 1 that there was some demand for illegal gratification made by accused No. 2. It is also prima facie established on record that it was not in knowledge of accused No. 1 that there was some demand for illegal gratification made by accused No. 2. It is prima facie clear that prosecution could not prove its case beyond reasonable doubt and learned trial Judge has wrongly convicted both the appellants only on the ground of presumption. 41. Looking to the evidence of prosecution, abetment of accused No. 2 with accused No. 1 should be considered in light of the evidence of complainant, panch witness and trapping officer. It is prima facie established that at the time of first demand accused No. 1 was not present and at the time of recovery of amount from the possession of accused No. 1, accused No. 2 was not present. At the time of meeting the complainant had with both the accused persons, no demand was made. Therefore, looking to the ingredients of Secs. 107 and 108 of Penal Code and in light of provisions of Secs. 107 and 108 of the Indian Penal Code and Sec. 12 of the Act, the prosecution has to establish that both the accused have abetted each other. But in result of microscopic perusal from the evidence of witnesses, it is found that ingredients of Secs. 107 and 108 of the Indian Penal Code are not attracted and not established, therefore, the question with regard to abetment in light of Sec. 12 of the Prevention of Corruption Act cannot arise. 42. From evidence of the Trapping Officer it appears that trap was failed and panchnama was over and trap amount was recovered by the Trapping Officer from the complainant and then Trapping Officer has told the complainant to come on 22-11-1993. It shows that, that date was given by the Trapping Officer to the complainant to show that there was agreement made by accused persons to accept illegal gratification from the complainant. But it is not proved as to how and why complainant was recalled on 22-11-1993 and how that second trap was carried out. That conduct of the Trapping Officer creates doubt. 43. In the result, both the appeals deserve to be allowed and they are allowed accordingly. Conviction and sentence of both the accused are set aside. Fine amount, if any, paid be refunded to the appellants. The bail bond shall stand cancelled. That conduct of the Trapping Officer creates doubt. 43. In the result, both the appeals deserve to be allowed and they are allowed accordingly. Conviction and sentence of both the accused are set aside. Fine amount, if any, paid be refunded to the appellants. The bail bond shall stand cancelled. R. & P. to be transmitted to the trial Court.