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2016 DIGILAW 2189 (GUJ)

Shantilal Motibhai Gohel v. State of Gujarat

2016-11-24

R.P.DHOLARIA

body2016
JUDGMENT : R.P. Dholaria, J. Both these appeals arise out of the same incident and involve common questions of law and facts and hence, they are being decided by this common judgment. 2. Criminal Appeal No.1066 of 1998 is preferred by the appellant - Shantilal Motibhai Gohel who is original accused No.2 and Criminal Appeal No.1089 of 1998 is preferred by the appellant - Ishwarbhai Somabhai Rohit who is original accused No.1 against the judgment and order dated 12.10.1998 passed by learned Special Judge and Additional Sessions Judge, Kheda at Nadiad in Special Case (ACB) No.2 of 1997 whereby the original accused No.1 was convicted for the offence under section 7 of the Prevention of Corruption Act 1988 ("the Act" for short) and sentenced to undergo one year rigorous imprisonment and fine of Rs.5000/-, in default, to undergo six months simple imprisonment and for the offence under section 13(2) read with section 13(1)(d) of the said Act, the original accused No.1 was sentenced to undergo three years rigorous imprisonment and fine of Rs.10000/-, in default, to undergo further three months simple imprisonment, whereas original accused No.2 was convicted for the offence under section 7 of the Act read with section 120-B of IPC and sentenced to undergo one year rigorous imprisonment and fine of Rs.3000/-, and for the offence under section 13(2) read with section 13(1)(d) of the said Act along with section 120-B of IPC, the original accused No.1 was sentenced to undergo two years rigorous imprisonment and fine of Rs.5000/-, in default, to undergo further three months simple imprisonment. 3. The short facts giving rise to the present appeal are that PW 3 C.C. Raval was discharging his official duties as Police Inspector, ACB, Nadiad during the year 1996 and he received the information that the officials of local police and RTO are harassing the drivers of the vehicles and they are collecting illegal gratification and thereafter the drivers of the vehicles are allowed to go without having any legal action against them. It is alleged that therefore PW 3 invited two independent panch witnesses on 18.10.1996 and decided for trap and accordingly, the panchas were informed. Thereafter, truck No.GJ 18 T 585 was stopped by PW 3 and the driver PW 2 Yusufbhai was taken into confidence that his assistance was required to lay the trap. It is alleged that therefore PW 3 invited two independent panch witnesses on 18.10.1996 and decided for trap and accordingly, the panchas were informed. Thereafter, truck No.GJ 18 T 585 was stopped by PW 3 and the driver PW 2 Yusufbhai was taken into confidence that his assistance was required to lay the trap. It is alleged that thereafter PW 3 followed the necessary procedure and driver PW 2 Yusufbhai started moving his truck and the members of raiding party also took their seat in the cabin of the truck at about 0.45 hours in the night. It is alleged that when PW 2 was moving his truck through the highway, near Sardar Patel Bhavan, Nadiad, one constable having uniform of traffic police, whistled and stopped the truck by raising hand. Thereafter PW 1 and PW 2 had gone to accused No.1, at that time, the accused No.1 told decoy Yusufbhai as to why he has not placed light or red cloth at the reverse side of the truck and also threatened decoy Yusufbhai for issuance of memo. During this period, accused No.2 who was in the company of the accused No.1 made gesture by his hand to make a payment of illegal gratification and accused No.1 demanded illegal gratification of Rs.100/-. It is alleged that PW 2 Yusufbhai took out tainted currency notes of Rs.100/- by his right hand and extended the same towards accused No.1 who accepted the said currency notes by his right hand and placed it into the right pocket of his pant. It is alleged that PW 2 Yusufbhai raised a pre-arranged signal and hence, the members of raiding party and PW 3 rushed to the place of the incident. It is alleged that accused No.1 tried to thrown away tainted currency notes of Rs.100/- near to the scooter and said currency note of Rs.100/- along with one currency note of Rs.10/- were recovered near to the scooter owned by the accused during the search. It is also alleged that accused Nos.1 to 3 entered into criminal conspiracy with an intention to demand illegal gratification from the drivers of the vehicles. It is alleged that the accused persons were caught red handed while demanding and accepting illegal gratification of Rs.100/- from the decoy PW 2. 4. It is also alleged that accused Nos.1 to 3 entered into criminal conspiracy with an intention to demand illegal gratification from the drivers of the vehicles. It is alleged that the accused persons were caught red handed while demanding and accepting illegal gratification of Rs.100/- from the decoy PW 2. 4. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against both the appellants accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 4.1. In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences. 4.2. At the end of the trial, after recording the statements of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above. 5. Being aggrieved by the same, the appellants have preferred the aforesaid Criminal Appeals before this Court. 6. By way of preferring the present appeals, the appellants have mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. 7. Mr. Jayprakash Umot, learned advocate for the accused No.1 has taken this Court through the entire judgment and record and argued that as per the evidence of decoy PW 2 as well as panch who accompanied along with decoy, they have not deposed before learned trial Court as to whether any demand was raised by accused No.1 and even though recovery of tainted currency note of Rs.100/- which came to be recovered from the place of trap which was lying nearby the scooter on the road, no recovery was made from the person of the accused No.1 and, therefore, nothing reveals against the accused No.1 as regards to any demand raised by him nor that he has accepted illegal gratification. He submitted that even though the said fact is also getting established from the evidence of both the aforesaid witnesses, more particularly, in the cross examination, both the aforesaid witnesses have clearly and categorically deposed that there was neither demand from them nor acceptance and, therefore, conviction recorded against the accused No.1 is required to be set aside as such. He has argued that so far as the accused No.1 is concerned, there was previous animosity between the complainant PW 2 and the accused No.1 for the reason that when the complainant was passing through one way unauthorizedly, the accused No.1 was intervened and stopped him and hence, the complainant kept grudge against the accused No.1 and, therefore, the accused No.1 was trapped to settle the score by the complainant. He submitted that the said aspect has also been brought on record during the course of cross examination of the witness as well as in further statement also, he has placed on record the evidence indicating that on that day, accused No.1 was on duty to look after the traffic upon the one way road from RTO office to railway station, Nadiad and, therefore, there is all possibilities of implicating the accused No.1 in the alleged offence in order to settle the score. He, therefore, submitted that the accused No.1 is required to be acquitted, as such. 8. Mr. J.M. Panchal, learned senior advocate for the original accused No.2 has argued that accused No.2 has been charged vide Exh.4 paper book page 21 wherein there was specific charge that accused No.2 has made gesture by hand to give amount of Rs.100/- to accused No.1. However, in the evidence of decoy and panch, improvements were made during the course of his examination-in-chief wherein it is clearly and categorically stated that accused No.2 orally demanded Rs.100/- from decoy and, therefore, decoy handed over currency note of Rs.100/- to accused No.1. He submitted that however, in the cross examination of both the aforesaid witnesses, they have admitted that there was no talk or conversation between decoy and accused No.2. He submitted that however, in the cross examination of both the aforesaid witnesses, they have admitted that there was no talk or conversation between decoy and accused No.2. He, therefore, submitted that when there was no talk, there was no question of demand having raised by accused No.2 from the decoy and, therefore, even though the tainted currency note of Rs.100/- was recovered from the ground nearby the scooter at the place of incident, by no stretch of imagination, it can be termed to be acceptance by either of the accused. He submitted that, therefore, the prosecution has miserably failed to prove vital ingredients as regards to demand and acceptance. He submitted that even the recovery of tainted currency note which came to be made from open public place is meaningless in light of the defence raised by accused No.1. He submitted that learned trial Judge has mainly concentrated upon the theory of conspiracy that all the accused were found at the place of incident and they have conspired and executed conspiracy and in view of recovery of tainted currency note, demand and acceptance has been presumed invoking the provisions of section 20 of the Act which is not permissible under the law and, therefore, the impugned judgment and order is not sustainable at law. 9. On the other-hand, Ms. Monali Bhatt, learned APP has supported the judgment rendered by learned trial Court. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused which calls for no interference. She further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence and, therefore, punishment inflicted upon the accused does not call for any interference. She submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant and ingredients as regards to demand, acceptance and recovery are proved in accordance with law. She submitted that when the running trap was arranged with the aid of decoy, the provisions of section 120-B of IPC would apply and hence, the role of each accused is to be seen and appreciated jointly and severally. She submitted that when the running trap was arranged with the aid of decoy, the provisions of section 120-B of IPC would apply and hence, the role of each accused is to be seen and appreciated jointly and severally. She, therefore, submitted that even though in the charge, demand was raised by gesture which has not been described in any manner in the depositions of the witnesses and that tainted the currency note was found in badly folded condition itself indicates that there was clear demand. She submitted that the said aspect is also supported by decoy and Panch No.1 and during the course of seizure, the number of tainted currency note was also tallied which was supplied to the decoy. She submitted that seizure memo is not only signed by the Investigating Officer, but the signature of the accused has also been obtained and, therefore, presumption raised by learned trial Court by invoking the provisions of section 20 of the Act is in accordance with law and this Court may not interfere with the judgment and order of conviction, as such. 10. This Court has heard Mr. Jayprakash Umot, learned advocate for the accused No.1, Mr. J.M. Panchal, learned senior advocate for accused No.2 and Ms. Monali Bhatt, learned APP for the State. 11. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. 12. As per the prosecution version, more particularly, as per the charge, both the appellants as well as acquitted accused Rameshbhai Natwarbhai were serving as Police Constables. The original accused No.1 was on duty as Traffic Constable who was required to check vehicles passing within vicinity of Nadiad town. It is the case of the prosecution that complainant Mr. C.C. Raval has received information that all the three accused are demanding and accepting money from the drivers of the vehicles and they are harassing them and, therefore, running trap was arranged and PW 2 who was driver of truck No.GJ 18 T 585 readily agreed to act as decoy and hence, he was made to understand as to how the trap is arranged. It is the case of the prosecution that during the course of trap on 23.10.1996 at about 2.30 am, while the truck in question was passing within vicinity of Sardar Patal Bhavan, Nadiad, at that time, accused No.1 intercepted the truck and inquired as regards to papers of the truck and license and then accused No.2 by way of gesture by hand demanded Rs.100/- which came to be delivered to accused No.1. It is the case of the prosecution that the accused were caught red handed in trap and, thus, they have committed the offence, as alleged. 13. PW 1 - Rameshbhai Motibhai Rathod has been examined at Exh.10. The witness has deposed that on 17.10.1996, he was serving as Clerk in the Government office as well as one another Panch were requisitioned by Police Inspector Mr. Raval and they made to understand as to how the decoy trap is to be carried out and also they were made to understand as to how currency note was tainted with anthracene powder and to be viewed in ultra-violate lamp and thereafter trap was arranged. The witness has deposed that he was made to understand to see and hear the conversation which may take place between the complainant and the accused and thereafter they were travelling upon the truck which was brought by the complainant from Odhav to Vadodara and while the truck was passing within vicinity of Sardar Patel Bhavan, Nadiad, at that time, one person in traffic police dress who was also accompanied by two other police constables blown whistle and stopped the truck and hence, the driver stopped the truck. The witness has deposed that the driver and other persons got down from the truck, at that time, accused Nos.1 and 2 have stated that as to why the witness was driving the truck in excessive speed and as to why the witness has not applied red cloth for signal on the reverse side of the truck. The witness has deposed that the witness was also asked whether he was having any driving license and thereafter accused No.1 tried to issue memo from the book kept by him, at that time, the driver of the truck requested him not to issue memo. The witness has deposed that the witness was also asked whether he was having any driving license and thereafter accused No.1 tried to issue memo from the book kept by him, at that time, the driver of the truck requested him not to issue memo. The witness has deposed that at that time, accused No.2 made gesture by hand to give money to him and the driver of the truck took out the amount from the pocket and delivered one currency note of Rs.100/- to accused No.1 which he accepted by his right hand and inserted in the pocket of his pant. The witness has deposed that thereafter the witness raised alarm and hence, the members of the raiding party arrived at the place, at that time, accused No.1 got indication and run away towards the road. The witness has deposed that at that time, complainant Mr. Raval caught hold the accused No.1 as well as other two persons. The witness has deposed that all the three accused have been identified by the panchas before the learned trial Court who were present at the time of trap and thereafter they were examined in ultra-violate lamp wherein the said test was found to be positive so far as pocket of accused No.1 is concerned. The witness has deposed that from the search of the pocket of accused No.1, currency note of Rs.10/- was also recovered which was also found to be tainted with anthracene powder and so far as as rest of two persons are concerned, test of ultra-violate lamp was found negative. The witness has deposed that tainted currency note which was used for giving illegal gratification was found lying near the scooter by using battery. In the cross examination, the witness has admitted that while he performed his duty as panch on 17.10.1996, trap remained unsuccessful and on 18.10.1996, the place of trap was not disclosed to him by the Police Inspector and Mr. Raval was leading the truck where to drive. The witness further admitted that at the place of trap, there was conversation between the complainant and accused No.1 as regards to speed of truck as well as putting of cloth or signal on the iron brass and thereafter also, during the said conversation, accused No.1 tried to issue memo. Raval was leading the truck where to drive. The witness further admitted that at the place of trap, there was conversation between the complainant and accused No.1 as regards to speed of truck as well as putting of cloth or signal on the iron brass and thereafter also, during the said conversation, accused No.1 tried to issue memo. The witness has admitted that tainted currency note was not recovered from the pocket of accused No.1 and he has not seen that the accused No.1 has thrown tainted currency note on the ground. The witness has admitted that there was no conversation took place between accused No.2 as well as decoy Yusufbhai. 14. PW 2 - Yusufbhai Sulemanbhai Mansuri has been examined at Exh.13. The witness has deposed that he was driver of truck No.GJ 18 T 585 who has agreed voluntarily to act as decoy. The witness has deposed that he was proceeding towards Vadodara on 18.10.1996 during nocturnal hours and as his truck was passing within vicinity of Sardar Patel Bhavan, Nadiad, at that time, his truck was stopped by accused No.1 who was identified by the witness before the learned trial Court. The witness has deposed that thereafter the accused No.1 has asked certain questions as regards to speed of truck, license and not putting of signal over the iron brass. The witness has deposed that he answered all the questions, at that time, another person who was there has asked him to give Rs.100/- to accused No.1. The witness has deposed that the person who asked the witness to give Rs.100/- was identified by the witness as accused No.2 and upon such direction, the witness took out Rs.100/- from his pocket and delivered the same to accused No.1. The witness has deposed that at that time accused No.2 was also present and thereafter he raised alarm and hence, the members of the raiding party came to the place of incident and caught hold the accused. The witness has deposed that thereafter search was made and currency note of Rs.100/- was found from the ground lying nearby the scooter and thereafter the accused were taken to the ACB office. The witness has deposed that pant of accused No.1 was recovered and test of ultraviolate lamp was carried out and it was found to be positive so far as the accused No.1 is concerned. The witness has deposed that pant of accused No.1 was recovered and test of ultraviolate lamp was carried out and it was found to be positive so far as the accused No.1 is concerned. The witness has deposed that the number of tainted currency note of Rs.100/- was also tallied with the panchnama prepared prior to carrying out the trap. In the cross examination, the witness has admitted that while his truck was intercepted at the place where the trap was carried out, only one person was alighted along with him and rest of the persons remained seated in the truck. The witness has admitted that currency note of Rs.100/- was lifted out by the police official and thereafter he has also lifted one currency note of Rs.10/-. The witness has admitted that accused No.1 has not demanded Rs.100/- as illegal gratification from him and there was no conversation between him and accused No.2 and that police has recorded his statement on the same day after 11.00 O'clock. The witness has admitted that the police has inquired his name and also about the papers of truck and except that, nothing was asked. The witness has further admitted that he has not stated before the police in his police statement that other constable called him and asked him to pay the amount of Rs.100/- to accused No.1. 15. PW 3 - Chandrakant Chhaganlal Raval has been examined at Exh.14. The witness has deposed that he was serving as Police Inspector, ACB, Nadiad in the year 1996-1997 and he received secret information from his own sources that police officials are harassing the drivers of the vehicles which are passing within vicinity of Sardar Patel Bhavan, Nadiad by collecting entry fees of Rs.20/- to Rs.200/- as illegal gratification. The witness has deposed that therefore, he thought it fit to carry out running trap and hence, he has searched out Yusufbhai Sulemanbhai Mansuri who was driving the truck GJ 18 T 585 and readily agreed to act as decoy. The witness has deposed that the trap was arranged and when the truck driven by PW 2 was passing within the vicinity of Sardar Patel Bhavan, Nadiad, accused No.1 blown whistle and stopped the vehicle and thereafter asked the truck driver to come down at about 2.45 hours during nocturnal hours and other members remained seated in the truck. The witness has deposed that the trap was arranged and when the truck driven by PW 2 was passing within the vicinity of Sardar Patel Bhavan, Nadiad, accused No.1 blown whistle and stopped the vehicle and thereafter asked the truck driver to come down at about 2.45 hours during nocturnal hours and other members remained seated in the truck. The witness has deposed that after receiving the alarm at about 2.50 hours in the night, other members who were sitting in the truck also come down from the truck and caught hold accused No.1 and other accused from the place of incident. The witness has deposed that recovery panchnama was carried out and tainted currency note which was used for illegal gratification was not found from the pocket of accused No.1, however, currency note of Rs.10/- was found which was tainted with anthracene powder and thereafter currency note of Rs.100/- was searched out by the aid of torch near the scooter which was lying on the road. The witness has deposed that detailed panchnama was carried out and he lodged the complaint thereafter before him. In the cross examination, the witness has admitted that he has not seen and heard whatever conversation took place between the accused and decoy Yusufbhai as well as the transaction took place between them. 16. PW 4 - Nalinkumar Somabhai Joshi has been examined at Exh.17. The witness has deposed that on 18.10.1996, he was serving as Senior Police Inspector in ACB, Nadiad and he was handed over with the investigation of the complaint lodged by Mr. Raval. The witness has deposed that he has recorded the statements of the witnesses as well as panchas and carried out the investigation and also obtained sanction and thereafter filed the chargesheet as sufficient evidence was found against the accused. 17. Raval. The witness has deposed that he has recorded the statements of the witnesses as well as panchas and carried out the investigation and also obtained sanction and thereafter filed the chargesheet as sufficient evidence was found against the accused. 17. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair v. State of Kerala, (2009) 6 SCC 587 : 2009 AIR SCW 3994 while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act ruled that the prosecution has to prove the charge thereunder beyond reasonable doubt like any other criminal offence and that the accused should be considered to be innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, which are vital ingredients necessary to be proved to record a conviction. 18. In State of Kerala and another v. C.P. Rao (2011) 6 SCC 450 : AIR 2012 SC (Supp) 393 the Honourable Apex Court reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 19. In a recent enunciation by the Honourable Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayraj (AIR 2014 SC (Supp) 1837) (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 20. In the present case, this Court is required to scrutinize the evidence to ascertain whether there is proper, reliable and cogent evidence beyond reasonable doubt to confirm the judgment and sentence awarded by learned trial Court. If there is no such evidence on record, in that event, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 21. In the backdrop of the aforesaid factual position, this Court has minutely gone through the impugned judgment and order as well as the depositions of the witnesses in light of the rival submissions made by learned advocates for both the sides. 22. In corruption cases, as laid down in the series of judgments by the Honourable Apex Court as well as by this Court, three vital ingredients are required to be established by the prosecution beyond reasonable doubt in order to prove the offence as alleged. Recently, the Honourable Apex Court has made it clear that the proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. Precisely, failure of the prosecution to prove demand for illegal gratification would be fatal and mere recovery of amount from the person of the accused of the offence under sections 7 or 13 of the Act would not entail his conviction thereunder. In view of the aforesaid principle laid down by the Honourable Apex Court, so far as the proof of demand is concerned, upon examination of the evidence on record as regards to the demand in the present case, as per the charge framed against the accused and as per the prosecution case, the accused No.2 raised demand by making gesture by hand to deliver Rs.100/- and hence, the decoy handed over Rs.100/- to accused No.1 and that is the precise the case of the prosecution. So far as the demand is concerned, the same is revealing from the complaint which has been lodged by Police Inspector Mr. Raval and the same is also revealing from the panchnama of trap arranged as well as from the police statement of decoy and panch who have narrated in the recital of the panchnama that the demand was raised by way of making gesture by raising hand and to deliver Rs.100/- as illegal gratification to the accused. However, during the course of leading the evidence before learned trial Court, decoy i.e. PW 2 as well as panch who is PW 1 who were witnesses in whose presence, the transaction as regards to demand and acceptance of illegal gratification took place have tried to develop the case by way of making improvements in their examination-in-chief as if accused No.2 demanded by making oral request to deliver Rs.100/- to accused No.1 as illegal gratification. However, in their cross examination, both the witnesses have admitted that there was no conversation between decoy Yusufbhai Sulemanbhai - PW 2 and accused No.2 and, therefor, entire factum as regards to demand itself falls on the ground. However, in their cross examination, both the witnesses have admitted that there was no conversation between decoy Yusufbhai Sulemanbhai - PW 2 and accused No.2 and, therefor, entire factum as regards to demand itself falls on the ground. Under the circumstances, even though tainted currency note of Rs.100/- which was indisputably was not seized or recovered from the person of accused No.1, but the same has been recovered from the ground which was lying near the scooter at the place of incident may be believed to be true, then also mere recovery of tainted currency note which was used in trap would not prove the vital ingredients as regards to demand and acceptance. 23. This Court has minutely gone through the evidence of the aforesaid two crucial witnesses and on examination of their evidence, it appears that they have tried to improve upon their version as if accused No.2 demanded the amount of Rs.100/- by making oral request and thereafter in the cross examination, both the witnesses have admitted that there was no conversation between the decoy and accused No.1. In this view of the matter, very factum as to demand and acceptance is not proved. In view of the aforesaid nature of evidence, though learned trial Court has recorded the finding that when tainted currency note was found and test of ultra-violate lamp was found to be positive in the evidence as well as in muddamal pant which was wore by accused No.1 and therefore, invoking the provisions of section 20 of the Act, the offence as regards to demand and acceptance is held to be proved is not not in consonance with the law laid down by the Honourable Apex Court in the series of decisions. The factum of demand can only be established in the oral evidence of demander as well as giver of illegal gratification and in order to corroborate the said transaction, the evidence of panch is also essential as corroborative evidence but the evidence of demander as well as giver is direct evidence. If the said evidence is not available, in that case, even though recovery of tainted currency note which came to be recovered from the person of the accused, the case of the prosecution would fall to the ground. 24. If the said evidence is not available, in that case, even though recovery of tainted currency note which came to be recovered from the person of the accused, the case of the prosecution would fall to the ground. 24. One another aspect which is also coming out in this case is as regards to explanation render in the statement under section 313 of the Code of Criminal Procedure, 1973. In light of the cross examination of the complainant as regards to previous enmity between the complainant as well as accused No.1 as accused No.1 was serving in the police department and while he was on duty, he found out the complainant driving his vehicle on one way side of the road and he was stopped and, therefore, there was strain relation between the complainant and accused No.1, due to which, in order to settle the score, the aforesaid case was made out and he was wrongly implicated in the offence. In this view of the matter, defence put up by accused No.1 is also required to be considered in light of the evidence as adduced by the prosecution and on overall reading of the evidence on record, the say of the accused No.1 is also supported by the documentary evidence so far as his duty list is concerned which clearly speaks out that on the day when he stopped the complainant, he was on duty in Nadiad town from Railway Station to RTO road. 25. In view of the above discussion, the following final order is passed; Criminal Appeal No.1066 of 1998 preferred by the appellant - Shantilal Motibhai Gohel - original accused No.2 and Criminal Appeal No.1089 of 1998 preferred by the appellant - Ishwarbhai Somabhai Rohit - original accused No.1 are allowed. The impugned judgment and order dated 12.10.1998 passed by learned Special Judge and Additional Sessions Judge, Kheda at Nadiad in Special Case (ACB) No.2 of 1997 is quashed and set aside. Both the appellants - accused are acquitted of the charges levelled against them. Fine, if any, paid by them be refunded to them. R & P be sent back to the trial Court, forthwith.