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2015 DIGILAW 46 (GUJ)

DEVENDRA MAVJIBHAI MAKWANA v. STATE OF GUJARAT

2015-01-16

Z.K.SAIYED

body2015
ORAL JUDGMENT 1. Devendra Mavjibhai Makwana, the appellant – original accused of Criminal Appeal No.1280 of 2003 and Nazir Ahmed Gulam Mustafa Shaikh, the appellant – original accused – have preferred these appeals under Section 374 of the Code of Criminal Procedure, against the judgment and order of conviction and sentence dated 22.10.2003 passed by the learned Additional Sessions Judge, Second Fast Track Court, Mehsana, in Special (ACB) Case No.19 of 1999, whereby, the learned Special Judge has convicted the accused No.1 for the offence punishable under Sections 7 of the Prevention of Corruption Act and sentenced him to undergo R.I. for 4 (four) years and to pay a fine of Rs.2,000/, in default, to undergo further R.I. for 06 (six) months. He is also convicted for the offence punishable under Sections 13(1)(d), (1)(2)(3) read with Section 13(2) of the Prevention of Corruption Act and sentenced to undergo R.I. for 4 (four) years and to pay a fine of Rs.2,000/, in default, to undergo further R.I. for 06 (six) months. The accused No.2 is convicted for the offence punishable under Sections 7 of the Prevention of Corruption Act and sentenced to undergo R.I. for 4 (four) years and to pay a fine of Rs.2,000/, in default, to undergo further R.I. for 06 (six) months. He is also convicted for the offence punishable under Sections 13(1)(d), (1)(2)(3) read with Section 13(2) of the Prevention of Corruption Act and sentenced to undergo R.I. for 4 (four) years and to pay a fine of Rs.2,000/, in default, to undergo further R.I. for 06 (six) months. The learned Judge has ordered that substantive sentences are to run concurrently. 2. As both the appeals arise out of the same Special Case, the same are heard together and disposed of by this common judgment. 3. The brief facts of the prosecution case are as under: The Complainant-Kiritkumar Bhogilal Raval was living at Unava village and was earning his livelihood by doing pooja and labour work. The complainant was having LML Vespa bearing registration No.GJ24238. On 02.15.1999, he sold the same to one Mahendrasinh Ajaykumar Kapoor of Palanpur for Rs.7,000/and it was promised by the complainant to register the said vehicle in his name. As the said vehicle was of R.T.O., Mehsana, on 03.15.1999, the complainant went to Office of Mehsana R.T.O., met the clerk, deposited Rs.15/and got receipt No.589957 and completed the other formalities. On 02.15.1999, he sold the same to one Mahendrasinh Ajaykumar Kapoor of Palanpur for Rs.7,000/and it was promised by the complainant to register the said vehicle in his name. As the said vehicle was of R.T.O., Mehsana, on 03.15.1999, the complainant went to Office of Mehsana R.T.O., met the clerk, deposited Rs.15/and got receipt No.589957 and completed the other formalities. Thereafter, he went to office of D.M.Makwana, appellant-accused No.1, where he was told that he had to pay Rs.100/for No Due Certificate. At that time, as the complainant did not have money, on the next day he again approached and again appellant-accused No.1 demanded Rs.100/. As the complainant did not want to pay the bribe amount, on 28.05.1999, he approached ACB Office, Mehsana and lodged a complaint. Accordingly, Devabhai Chhatrabhai Bhabhor, PI called two panchas, Ramanbhai Vitthaldas Patelpanch No.1 and Bipinkumar Madhavlal Patelpanch No.2. Thereafter, the complainant was introduced by PI to panchas and also explained the procedure of raid. Thereafter, the complainant produced the currency notes of the bribe amount and on the said notes, anthracene powder was applied. Then, preliminary panchnama was drawn. The complainant put the said currency notes in the left pocket of his shirt. He was advised not to touch the said amount of bribe, prior to making of demand. Thereafter, they went to the place of offence. Panch No.1 was advised to stay with the complainant whereas panch No.2 was advised to stay with members of raiding party. At that time, appellants accused were present there. When the complainant gave No Due Certificate and bribe amount of Rs.100/, accused No.1 accepted the same amount and passed it to accused No.2 and put in his pocket. As decided earlier, signal was given and members of the raiding party rushed to the place of incident and from the possession of accused No.1, bribe amount of Rs.100/(in denomination of Rs.50/) was recovered. Experiment of ultra violate lamp was made by Head Constable Bhagvanbhai. Then, second part of the panchnama was drawn. Thereafter, the investigation was carried out and chargesheet was filed against the appellantsaccused by the ACB, Mehsana bearing registration No.C.R.No.I10 of 1999 for the offence punishable under Sections 7, 13(1)(d)(i)(ii)9iii) and 13(2) of the Prevention of Corruption Act. 4. Thereafter, the charge was framed against the appellants to which the appellants – accused pleaded not guilty and claimed to be tried. 5. 4. Thereafter, the charge was framed against the appellants to which the appellants – accused pleaded not guilty and claimed to be tried. 5. In order to bring home the charge levelled against the appellants accused, the prosecution has examined following witnesses: Sr. No. Exh. Witness 1. 43 Kiritukumar Bhogilal Raval 2. 46 Ramanbhai Vitthaldas Patel 3. 51 Devabhai Chhatrabhai Bhabhor 4. 53 Hirabhai Gendalbhai Damor 6. The prosecution has also produced following documentary evidence on record of the trial Court : Sr. No. Exh. Documentary evidence 1. 32 Xerox copy of R.C.Book of complainant 2. 33 Copy of receipt of transfer fee of complainant’s vehicle 3. 34 Original copy of application of no due certificate 4. 35 Original copy of notice 5. 36 Certificate of salary of accused N.G.Shaikh 6. 37 Certificate of salary of D.M.Makwana 7. 38 Copy of service book of accused-N.G.Shaikh 8. 39 Copy of service book of accusedD.M.Makwana 9. 40 41 Original copy of circular/notification of Gujarat State. 10. 42 Sanction letter to lodge complaint against appellants-accused 11. 44 Complaint 12. 45 Yadi to Additional Colletor 13. 47 Panchana 7. After examining the witnesses, further statement of the appellants-accused under Sec. 313 of Cr PC was recorded wherein the appellants-accused have denied the case of the prosecution. 8. After considering the oral as well as documentary evidence and after hearing the parties, learned Additional Sessions Judge, Second Fast Track Court, Mehsana, vide impugned judgment and order dated 22.10.2003, held the appellants – accused guilty of the charge levelled against them and convicted and sentenced them as stated herein above. 9. Being aggrieved by and dissatisfied with the impugned judgment and order of conviction and sentence passed by the learned Additional Sessions Judge, Second Fast Track Court, Mehsana, the present appellants have preferred these appeals. 10. Heard Mr.Adil Mehta, learned counsel appearing with Mr.K.J.Shethna, learned counsel, for the appellant – accused No.1 and Mr.Rushabh Shah, learned counsel for the appellant – accused No.2. 11. Mr.Mehta has read the charge and contended that the learned Judge has failed to appreciate that there are four ingredients for the charge of demand of proving gratification, namely, (i) initial demand (ii) second demand to be made in presence of panch (iii) acceptance and (iv) recovery, which are required to be proved through the evidence of the complainant and there should be corroboration to all those ingredients. He has contended that the prosecution has examined the complainant, panchas, trapping officer, Sanctioning Officer as well as the Investigating Officer. From the evidence of all these witnesses and documentary evidence which are produced on record, the prosecution has failed to prove the above four ingredients of the prosecution case and learned Judge has wrongly convicted the present appellants in the said offence. 12. Mr.Mehta has contended that absolutely false case is filed by the complainant against the appellants-accused and they are wrongly booked in the chargesheet as demand of Rs.100/was not made by the appellants accused. He has contended that there was no cogent evidence about the proof of marks of anthracene powder, even on the hands of the appellant. He has contended that the story of initial demand of Rs.100/in general and by accused No.1 in particular is not proved. He has contended that the question of presumption under Section20 of the Act does not arise as it is not proved beyond reasonable doubt that the appellants-accused accepted or obtained or agreed to accept or attempted to obtain any illegal gratification from the complainant. He has read the contents of panchnama and oral evidence of panchas and contended that the prosecution has failed to prove its case beyond reasonable doubt as important and independent witnesspanch No.1, in his examination-in chief, did not disclose anything with regard to talk between the appellants-accused and complainant. He has contended that in such kind of corruption cases, main aspects demand and acceptance are required to be proved beyond reasonable doubt, whereas, in the case on hand, demand is not proved beyond reasonable doubt and thus, the learned trial Judge has committed grave error in convicting the appellants-accused. He has further contended that important witness Mahendrasinh was not examined by the prosecution. 13. He has contended that present complainant has not disclosed anything with regard to demand made by either of the accused persons. He has contended that the complainant has adduced oral evidence totally against the contents of the complaint which was given by him to the ACB office. He has contended that from the conduct of the learned APP incharge of the case, he has behaved totally in negligent manner. 14. He has contended that from the cross examination of present complainant it is disclosed that no demand was made by either of the accused persons to him for illegal gratification. He has contended that from the conduct of the learned APP incharge of the case, he has behaved totally in negligent manner. 14. He has contended that from the cross examination of present complainant it is disclosed that no demand was made by either of the accused persons to him for illegal gratification. He has read contents of panchnama Ex.47 and contended that even from the panchnama it is disclosed by panchas before the Trapping Officer that at the time of incident no talk with regard to illegal gratification took place between the complainant and accused persons. He has read panchnama and contended that the main ingredients of demand are not proved. He has contended that from the evidence of pancha it is disclosed before the learned Judge that when he entered the chamber of appellant No.1, accused No.2 was also present there, at that time, without uttering a single word the complainant has submitted transfer papers of vehicle with Rs.100/in the denomination of two notes of Rs.50/to the appellant No.1 and appellant No.2 took both the currency notes of Rs.50/and inserted in his pocket. He has contended that looking to the evidence of star witness panch, he never disclosed that either of the accused persons made any demand and no evidence is produced on record by the prosecution that in the result of demand made by accused persons, the RC Book papers with amount of Rs.100/were handed over to the accused persons. He has contended that even in cross-examination of panchas, it is admitted by panch witness that no demand was made by either of the accused persons by way of illegal gratification. He has contended that even it is admitted by the Trapping Officer that during drawing of the panchnama it was not disclosed that talk of demand took place between the accused persons and complainant. Lastly, he has read the observations of the learned Judge and contended that the observation of the learned Judge is not proper in eye of law and therefore, judgment and order of the learned Judge deserves to be set aside. 15. Lastly, he has read the observations of the learned Judge and contended that the observation of the learned Judge is not proper in eye of law and therefore, judgment and order of the learned Judge deserves to be set aside. 15. Mr.Mehta has relied on the decision of the Apex Court in the case of V. Venkata Saubharao vs. State represented by Inspector of Police, A.P., reported in AIR 2007 SC 489 , and contended that Apex Court has, in connection with Section 20 of the Prevention the Corruption Act observed that, presumption that money was accepted as motive or reward, cannot be raised when demand by accused has not been proved. 16. Mr.Mehta has relied on the decision of the Apex Court in the case of Banarsi Dass vs. State of Haryana, reported in (2010) 4 SCC 450 , and contended that conviction cannot be awarded only on the basis of the inference. Mere recovery of money from the accused by itself is not enough in absence of substantive evidence of demand and acceptance. 17. Mr.Mehta has relied on the another decision of the Apex Court in the case of B. Jayaraj vs. State of A.P. reported in 2014(2) GLH 149, and contended that proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn, are wholly absent. In the present case it is prima facie established that demand made by both the accused is not proved and established beyond reasonable doubt and, therefore, the learned Judge has wrongly convicted both the accused only on the ground of Section 20 of the Act. He has further contended that both the appellants – accused are public servant. Both the appellants are dismissed from the service and both are at present retired. Lastly, he has read observations of the learned Judge and contended that the observations made by the learned Judge are not proper in the eye of law and therefore, judgment and order of the learned Judge is required to be set aside. 18. Mr.Rushabh Shah, learned counsel appearing for the appellant in Criminal Appeal No.1281 of 2003 has adopted the arguments canvassed by the Mr.Adil Mehta. 19. 18. Mr.Rushabh Shah, learned counsel appearing for the appellant in Criminal Appeal No.1281 of 2003 has adopted the arguments canvassed by the Mr.Adil Mehta. 19. Mr.H.S.Soni, learned APP appearing for the respondent – State has read the evidence of the complainant, FIR, panch witness, panchnama and evidence of Trapping Officer and contended that as per Section 8 of the Evidence Act, evidence of both the accused show that amount of trap was accepted by accused No.2 in consequence of the illegal gratification and on the previous day of the incident demand was made by accused No.1 to the complainant. He has contended that the evidence of recovery of the trap amount shows that from the possession of accused No.2 trap amount i.e. two notes of Rs.50/each were recovered. In light of the ultra violet lamp also presence of anthracene powder was found from the finger tips, palm and thumb of both the accused persons. Even from the pocket of the accused No.2 anthracene powder was found and in the panchnama that factual aspect is drawn by the panchas through Trapping Officer. He has contended that looking to the provisions of Section 20 of the Act, presumption is required to be drawn by this Court. The learned Judge has considered the evidence of the prosecution in light of Section 20 of the Act. He has contended that the learned Judge has considered each and every aspect of the matter and has rightly convicted and sentenced the accused persons. Therefore also, the impugned judgment and order of conviction and sentence passed by the learned Judge deserves to be confirmed. 20. He has drawn attention of the Court to the statements of the accused persons recorded under Section 313 of the Act and contended that it was the duty of both the accused persons to explain as to how presence of anthracene powder was found from the finger tips, palm, thumb and from the pocket of the accused No.2. He has contended that when the appellants accused have failed to rebut the presumption under Section 20 of the Act then in light of decisions of this Court as well as of the Apex Court judgments, the order of conviction passed by the learned Judge is required to be confirmed. 21. He has contended that when the appellants accused have failed to rebut the presumption under Section 20 of the Act then in light of decisions of this Court as well as of the Apex Court judgments, the order of conviction passed by the learned Judge is required to be confirmed. 21. Mr.Soni has relied upon decisions of this Court in the case of Narendra Champaklal Trivedi vs. State of Gujarat with Harjibhai Devibhai Chauhan vs. State of Gujarat, reported in 2013(1) GLR 1 and Nanji Govindbhai Sonagara vs. State of Gujarat, reported in 2012(2) GLR 969 and contended that learned Judge has rightly drawn presumption against both the accused and rightly convicted both the appellants accused. He has, therefore, prayed to dismiss both the appeals. 22. 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 appellant. 23. It is true as argued by the learned APP that receipt of Rs.15 was issued to the complainant, but from my minute perusal that issue was never disclosed by the complainant to establish that demand was made by the appellant – accused No.1 in connection with the registration of RC book of the scooter. In the complaint, the complainant has disclosed that demand was made by the accused No.1 and, therefore, trap was made by the Trapping Officer, but in the oral evidence of the P.W. No.1 he has fairly disclosed in his deposition that he met accused No.1 in his chamber and he talked for ‘No Due Certificate’, and at that time, all other persons were present and he submitted RC book and transfer papers in presence of three persons, whose names are not disclosed by the complainant. One of the persons of the three told that for ‘No Due Certificate’ Rs.100/ is required to be given. At that time, money was not with the complainant, so he got out from the chamber and on 20.5.1999 he filed complaint with ACB office. One of the persons of the three told that for ‘No Due Certificate’ Rs.100/ is required to be given. At that time, money was not with the complainant, so he got out from the chamber and on 20.5.1999 he filed complaint with ACB office. It was a complaint regarding demand of Rs.100/for bribe and that was his understanding and he was not ready to give any excess amount so he filed complaint before the ACB office. In para-2 of the complaint the complainant has disclosed the name of Mr.Makwana, because that chamber was of Mr.Makwana and at that time three persons were present in the chamber. It is admitted by the complainant in examination in-chief that when he entered into the chamber of Mr.Makwana panch No.1 was standing outside the chamber and later he entered the chamber and when papers and two notes of Rs.50/were given to accused No.1 – Mr.Makwana, he rushed with papers and amount so other person who was sitting near him he picked up that amount and inserted in his pocket and then signal was given and member of raiding party and Trapping Officer panch No.2 rushed in the chamber of Mr.Makwana. 24. Now from the above evidence of the complainant it is required to be noted that as to whether complainant has disclosed that demand of Rs.100/was made by either accused No.1 or accused No.2. From perusal of above evidence it prima facie appears that complainant has never disclosed that any demand was made by either of the accused persons – present appellants. In the cross examination, it is admitted by the complainant that the amount which was submitted to the accused on table was the amount for transfer fees. It is further admitted by him that for transfer of name in RC Book, fee is required to be paid. It is further admitted by him that office has never clarified that Rs.100/was amount of bribe. In light of the cross-examination, demand made by the complainant clearly shows that prosecution could not prove demand made by either of the accused persons – present appellants. It is further admitted by him that office has never clarified that Rs.100/was amount of bribe. In light of the cross-examination, demand made by the complainant clearly shows that prosecution could not prove demand made by either of the accused persons – present appellants. It is true that prosecution has examined P.W.No.2 as panch but from the panchnama it is an evidence of the pancha that when he entered the chamber of the accused No.1, the complainant furnished papers with Rs.100/and it was pushed by the accused No.1 and that was picked up by accused No.2 and inserted in his pocket and thereafter signal was given and member of raiding party came in the chamber of Mr.Makwana and muddamal articles were recovered by the Trapping Officer. In the cross-examination of panch witness it is admitted by him that between the complainant and both the accused persons no talk took place for any issue. I have perused Ex.43. In third para of second part of the panchnama it is disclosed by the panch witness that no demand was made by either of the accused persons and only the amount which was lying on the table was picked up by the accused No.2 and inserted in the pocket and recovery was made from him. 25. From the contents of the charge it is the case of the prosecution that demand was made by accused No.1 and in consequence of that demand two notes of Rs.50/each were offered by the complainant to the appellant accused No.1 and the same were accepted by accused No.2 and thereby they have committed criminal misconduct and amount of trap was recovered from the accused No.2. Looking to the evidence of the complainant, panchas and Trapping Officer it is required to be noted that from the evidence of the Trapping Officer who is examined as P.W. No.3 he has admitted in his cross-examination that name of accused No.2 was not mentioned in the complaint and he has never bothered to inquire that between 3.5.1999 to 20.5.1999 RTO papers were kept with whom and the same is admitted by him that this fact is not disclosed in the complaint. It is admitted by him that complainant was advised to talk for ‘No Due Certificate’ but as per the panchnama no talk took place between accused and complainant. It is admitted by him that complainant was advised to talk for ‘No Due Certificate’ but as per the panchnama no talk took place between accused and complainant. It is further admitted by him that he has not recovered RC book or any papers were returned to the complainant and ultraviolet lamp process was not applied on that papers. It is admitted by him that in the panchnama the same is not disclosed. 26. From the evidence of the complainant it appears that when he has not disclosed anything in support of the prosecution case then it was the duty of the public prosecutor who was incharge of the case to declare him hostile and make attempt to cross-examine him to bring true facts on record. But why and under what circumstances that was not followed is not understandable and till now it is not inquired by the present learned APP also. From the evidence of the complainant it is prima facie established that so called demand is not proved and it was not proved that demand was made by accused No.1 or 2. From the evidence of the panch witness and panchnama, it is prima facie established that when panchas and complainant entered the chamber of the accused No.1 no talk took place between the persons present in the chamber and only the complainant furnished the papers and two notes of Rs.50/each were offered to accused No.1 and these papers and amount were pushed away by the accused No.1 and then without uttering a single word the accused No.2 who was sitting near accused No.1 picked up the amount and it was inserted by him in his pocket. From the evidence of both these witnesses I have tried to find out whether the prosecution has proved that demand was made by any accused persons from the complainant, but I could not find out that demand was made by any of the accused persons and in response to demand the amount was handed over to them. It prima facie appears amount of Rs.100/was recovered from the pocket of accused No.2 and presence of anthracene powder was found from the pocket of accused No.2 and from the finger tips, palm and thumb of both the accused persons. It prima facie appears amount of Rs.100/was recovered from the pocket of accused No.2 and presence of anthracene powder was found from the pocket of accused No.2 and from the finger tips, palm and thumb of both the accused persons. The Apex Court has laid down in many cases that simple recovery of muddamal article is not sufficient, acceptance of the same is also not sufficient, but demand is required to be proved prima facie. In the present case demand is not proved. Mr. Soni, learned APP has vehemently contended with the aid of Section 20 of the Act that when muddamal trap amount is recovered from the possession of the accused No.2, the presumption is required to be drawn against the accused Nos.1 and 2. The Section 20 of the Act is reproduced hereinbelow : 20. Presumption where public servant accepts gratification other than legal remuneration.(1) Where, in any trial of an offence punishable under Section 7 or Section 11 or clause (a)or clause (b) of subsection (1) of Section-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 section 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 Section12 or under clause (b) of Section – 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 maybe, as a motive or reward such as is mentioned in section 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 sections (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. I have perused judgment relied upon by the learned APP Mr.Soni. I have also gone through the case of Balasubramanian vs. State through Inspector of Police, reported in 2011(1) GLR 739. I have also perused Section 8 of the Evidence Act. Section 8 of the said Act is reproduced hereinbelow : 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 light of Section 8 of the Evidence Act, conduct of the present appellants should be considered from the evidence of the witnesses like complainant and panchas to establish that the accused has obtained illegal gratification. The demand must be proved beyond reasonable doubt through oral evidence of the panchas and complainant. From the evidence of the complainant as well as panchas as discussed hereinabove, the demand is not established beyond reasonable doubt through oral evidence of the panchas as well as the complainant. The present appellants – accused are convicted for the offence punishable under Section 7 of the Act for illegal gratification accepted by them. Section 7 of the Act is reproduced hereinbelow : 7. Public Servant taking gratification other than legal remuneration in respect of an official act. The present appellants – accused are convicted for the offence punishable under Section 7 of the Act for illegal gratification accepted by them. Section 7 of the Act is reproduced hereinbelow : 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 Section2, 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. (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. (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. In response to the arguments made by Mr.Soni, learned APP I have perused judgment of the Apex Court in the case of Narendra Champaklal Trivedi vs. State of Gujarat, reported in AIR 2012 SC 2263 , wherein the Apex Court has held that the demand and acceptance of the amount as illegal gratification is sine qua non for constituting an offence under the Act. The Apex Court has further observed that, it is not to be proved beyond reasonable doubt and it is necessary to state that the prosecution is bound to establish that there was a illegal offer of bribe and acceptance thereof. I have perused the facts of the present case and from the facts of the case it is established that appellants have not made any demand. In a case of M.Narsinga Rao vs. State of A.P. Reported in (2001) 1 SCC 691 , wherein three Judges Bench of the Apex Court referred to Section 20 of the Act and observed that, only for drawing legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. Here in the present case there is not a iota of evidence adduced from the prosecution side that demand was made by accused and in the result of that demand, there was an agreement of both the accused to accept bribe amount from the complainant. In the case of Madhukar Bhaskarrao Joshi vs. State of Maharashtra, reported in (2000) 8 SCC 571 , it is observed by the Apex Court that the premise to be established on fact for drawing the presumption is that there was demand or acceptance of gratification. The Court has to draw presumption on the factual premises that there was payment of gratification. The Court has to draw presumption on the factual premises that there was payment of gratification. Now in light of this observation of the Apex Court, I have further considered the evidence of the prosecution and it is established prima facie that no word was uttered by both the accused persons to the complainant regarding illegal gratification in a form of bribe for the work of the registration of the RC Book. In the case of State of Maharashtra vs. Dnyaneshwar Laxman Rao Wankhede, it has been held that to arrive at the conclusion that there had been a demand of illegal gratification, it is the duty of the Court to take into consideration the facts and circumstances brought on record in their entirety and for the said purpose, undisputedly, the presumptive evidence as laid down under Section 20 of the Act must also be taken into consideration. In light of above observations made by Apex Court, when the demand which is the main ingredient for the offence punishable under Sections 7 and 13 of the Act is not proved beyond reasonable doubt then presumption cannot be drawn against both the appellants – accused. 27. Mr.Mehta, learned counsel for the appellant – accused No.1 has drawn attention of the Court to V. Venkata Saubharao vs. State represented by Inspector of Police, A.P., (Supra) wherein the Apex Court has observed that presumption under Section 20 of the Act cannot arise when the demand made by the accused person has not been proved. 28. I have minutely perused the entire evidence in light of the decisions cited before the Court. When the demand is not proved prima facie from the evidence of the complainant P.W. No.1 and panch witness P.W. No.2, then, accused persons – present appellants cannot be convicted for the alleged offence. It appears from the judgment and order of the learned Judge that he has only considered the aspect of recovery of muddamal from the accused No.2 and only on the ground of Section 20 of the Act he has drawn presumption and convicted both the accused persons. It appears from the judgment and order of the learned Judge that he has only considered the aspect of recovery of muddamal from the accused No.2 and only on the ground of Section 20 of the Act he has drawn presumption and convicted both the accused persons. But in light of the observations made by Apex Court in the above decisions which are observed hereinabove, it is prima facie established that the learned Judge has convicted the present appellants – accused Nos.1 and 2 without application of mind and without understanding the provisions of Section 20 of the Act and he has wrongly drawn presumption against both the accused. 29. 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.