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2016 DIGILAW 2210 (GUJ)

Vasantrai Karsanbhai Mankadia v. State Of Gujarat

2016-12-06

R.P.DHOLARIA

body2016
JUDGMENT : R.P.DHOLARIA, J. 1. The appellant has preferred the present appeal under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 19/01/2004 rendered by the learned Special Judge, Fast Track Court, Amreli in Special Case No.3 of 1990 whereby the appellant has been convicted for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to undergo simple imprisonment of six months and fine of Rs.2,000/- and in default to pay fine, to undergo simple imprisonment of one month. Further the appellant -accused has been convicted for the offence punishable under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment of one year and fine of Rs.3,000/- and in default to pay fine, to undergo simple imprisonment of six months. 2. The short facts giving rise to the present appeal are that on 01/04/1989, PW-4 Natwarlal Narsinhbhai Nagar, then working as PSI, ACB in Rajkot, was informed by the Assistant Director, ACB, Rajkot that he, PHC Sorathia, Police Constable Mahendrasinh Parmar, Police Constable Naranbhai should report to P.I. Shri Shimpi at Amreli for Government Work. Accordingly, they reported and when they were present in the chamber of P.I. Shri E. G. Shimpi, a trap was arranged at 5:30 p.m. on that day and a trap was the decoy trap. The raiding party which reported at Amreli, was given to understand that in Primary Health Center (for short “PHC”) of Mota Devaliya, Dr.Mankadia – the accused had not to charge the fees for the treatment given by him to the patients, and despite these facts he was taking fees and, therefore, a decoy trap has to be arranged. At that time, the bogus complainant Ganibhai Dabbawala and other members of the staff and two panchas were introduced to each other. P.I. Shri Shimpi gave the information to the Panchas about the private information which he had received. Thereafter P.I. Shri Shimpi told bogus patient-complainant that he should approach the accused and tell him that he was suffering from acute stomach pain and he should take the medicine for the prescription given by the accused, and if he demanded some fee amount, he should give the accused the requisite fees. The bogus patient was given two currency notes being one of Rs.10/- and one of Rs.5/-. The bogus patient was given two currency notes being one of Rs.10/- and one of Rs.5/-. The experiment with the anthracene powder and UV lamp was done and thereafter Lakhabhai explained to the bogus patient and the members of the raiding party about the trap. Thereby, first part of panchnama was drawn. Thereafter, as per arrangement of trap, all the members of the raiding party left for Mota Devaliya and reached there at 6:45 p.m. and after some time, they stood near the house of the accused-doctor and at about 7:00 p.m. when the accused accepted Rs.5/- from the decoy, a pre arranged signal was given by the bogus patient, therefore, raiding party went to the residence of doctor and caught him red-handed and recovered the tainted currency note. Thereafter the formalities were complied with and thereby the appellant committed the offence. Hence, the complaint came to be lodged against the appellant-accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellant accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined about four witnesses and also produced several documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under Section 313 of the Cr.P.C. and hearing the arguments on behalf of the prosecution and the defense, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that the 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. 6. Mr. Haresh Patel, learned advocate with Mr. 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. 6. Mr. Haresh Patel, learned advocate with Mr. J. M. Barot, learned advocate for the appellant has argued that the prosecution has miserably failed to establish the vital ingredients as regards to demand of illegal gratification and acceptance thereof as the decoy had not supported the case of the prosecution and has declared hostile and even in the cross examination, the decoy has deposed that the appellant-accused collected Rs.5/- not against the fee or remuneration but he has charged the same for the medicines as well as injection administered to the decoy patient. Consequently, therefore, the allegations as regards to acceptance of fee as illegal gratification, though the appellant-accused was debarred from carrying out private practice itself is not proved. He has further argued that the entire case of the prosecution rests upon the evidence of the decoy as well as PW-3 who are the crucial witnesses. The prosecution has not examined the complainant Shri Shimpi, Police Inspector, ACB, Amreli. Therefore, as regards to contradictions, improvements as well as other points, the prosecution could not bring on record such things. He has also argued that on going through the charge itself, it appears that the appellantaccused is charged for collecting fees by indulging himself into private practice. However, such practice was carried out at his home and by way of doing such collection of fee as a private practitioner, he has indulged into collection of illegal gratification which tantamount to bribe as such and is punishable under Section 7, 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act. He has further relied upon the decision of the Hon'ble Supreme Court in the case of Kanwarjit Singh Kakkar v. State of Panjab reported in 2011 (2) GLH 445 wherein the Hon'ble Supreme Court has considered such issue at large and laid down that the medical officer serving in the health center indulging in private practice after office hours and found giving treatment at home, in such eventuality, the law does not prohibit the Government Doctor for giving treatment at home. The acceptance of fee for such medical treatment at home cannot be termed to be illegal gratification or bribe. Further, it is held that no presumption can be held that it was for doing unofficial act and that the Hon'ble Supreme Court has quashed and set aside such prosecution lodged against such doctors and this decision is squarely applicable to the facts and circumstances of the case. Therefore, he has urged this Court to allow the present appeal and set aside the judgment of conviction. 7. On the other-hand, Ms. H. B. Punani, learned APP has taken this Court through the impugned judgment as well as records and proceedings of the learned trial court and she has also read over the depositions of the crucial witnesses being the decoy and PW-2 and PW-3 and has argued that the ingredients as regards to demand and acceptance of illegal gratification stands established and consequently, therefore, conviction recorded by the learned Special Judge is in accordance with law which calls for no interference of this Court. She has further argued that the 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 and, therefore, this Court should not disturb the finding recorded by learned trial Court, as such. Precisely, she has supported the judgment rendered by the learned Special Judge, and urged that this Court should not interfere with the same. 8. This Court has heard Mr. Patel, learned advocate with Mr. Barot, learned advocate for the appellant and Ms. H. B. Punani, learned Additional Public Prosecutor for the respondent-State. 9. 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. As per the prosecution version, the appellant-accused, while he was posted as the Medical Officer in the Primary Health Center, Mota Devalia, Taluka Babra, District Amreli, on 01/04/1989, at about 19:15 hours, at his home, after examining a decoy namely Gani Habibbhai, he charged and accepted Rs.5/- as illegal gratification as fee/remuneration for prescribing medicines and thereby he committed offence punishable under Section 7, 13(1)(d) and Section 13(2) of the Prevention of Corruption Act, 1988. 10. 10. 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. 11. At this juncture, it would be fruitful to refer to some decisions of Hon’ble Apex Court. In the case of A. Subair vs. State of Kerala reported in (2009) 6 SCC 587 , while dwelling on the purport of the statutory prescription of Sections 7 and 13(1)(d) of the Act, the Hon’ble Apex Court 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. 12. In the case of State of Kerala and another vs. C.P. Rao reported in (2011) 6 SCC 450 , the Hon’ble Apex Court, reiterating its earlier dictum, vis-à-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. 13. In a recent enunciation by the Hon’ble Supreme Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined by the Hon’ble Apex Court in the case of B.Jayaraj vs. State of A.P. Rerpoted in AIR 2014 SC(Supp) 1837, 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)&(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. 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. 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)&(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. 14. In reiteration of the golden principle which runs through the web of administration of justice in criminal cases, the Hon’ble Apex Court in the case of Sujit Biswas vs. State of Assam, reported in (2013)12 SCC 406 had held that suspicion, however grave, cannot take the place of proof and the prosecution cannot afford to rest its case in the realm of “may be” true but has to upgrade it in the domain of “must be” true in order to steer clear of any possible surmise or conjecture. It was held, that the Court must ensure that miscarriage of justice is avoided and if in the facts and circumstances, two views are plausible, then the benefit of doubt must be given to the accused. 15. PW-2, Ganibhai Habibbhai has deposed that he was requested by the Police Inspector Shri Shimpi to act as a decoy, dummy patient for carrying out the raid on the day of trap and was made to understand as to how the raid was to be carried out and as he has shown willingness, he accompanied the raiding party on 01/04/1989. PW-2, Ganibhai Habibbhai has deposed that he was requested by the Police Inspector Shri Shimpi to act as a decoy, dummy patient for carrying out the raid on the day of trap and was made to understand as to how the raid was to be carried out and as he has shown willingness, he accompanied the raiding party on 01/04/1989. He has deposed that he had accompanied PW-3 to village Mota Devalia situated at Taluka Babra, District Amreli and reached the house of appellant-accused and thereafter approached the doctor where he complained regarding stomach pain and therefore, the doctor examined him physically on the table and prescribed medicines and thereafter demanded Rs.5/- fee which the said appellant-accused accepted and thereafter put into his pocket. He has deposed that thereafter he raised pre arranged signal and due to which the entire team of the raiding party came over to the place and the appellant-accused was caught redhanded and thereafter test of ultra-violet lamp was carried out and it was found to be positive and Rs.5/- was recovered from the present appellant-accused. Thereafter, detail panchnama was carried out as well as seizure memo of number of notes were tallied which was mentioned in the preliminary panchnama and ultimately the raid remained successful. In the cross examination, he has admitted that when the doctor was examining the decoy, the raiding party were invisible. He has further admitted that after examination, the doctor administered injection as well as also delivered medicines to the said decoy patient. He has further admitted that the doctor demanded Rs.5/- for such medicines as well as injection and the doctor has also clarified that he is not charging anything for the consultation and he has charged for the injection as well as for drugs. He has further admitted that at the time of raid, the doctor has not charged any amount as illegal gratification but he has charged for the medicines and injection. The said witness was also cross examined by learned APP as regards to improvements made therein that the witness has not stated before the police that the doctor told the patient that he has charged Rs.5/- for the charge of injection as well as medicines to which he said that though he stated so before the police but the police might not have written it down. As regard above improvement, the prosecution has, however, not examined the Police Inspector Shri E. G. Shimpi before whom the witness has given the statement. Therefore, such improvements cannot be proved by invoking provisions of Section 145 of the Indian Evidence Act. 16. PW-3 Hitendra Labhshankar Upadhyay is a member of raiding party and official panch from the office of the Collector, Amreli and he accompanied the decoy witness Ganibhai. He was made to explain as to how the trap is to be carried out and he was directed to view the incident and to hear the conversation that might take place between the decoy as well as the doctor. He has deposed that when he reached along with the decoy witness at village Mota Devalia at the house of the appellant-accused on 01/04/1989, at that time, the doctor was present in his house and the doctor took the said patient into the room and he was standing outside the room. After his physical examination, the doctor prescribed medicines and collected Rs.5/- from the decoy and put into the pocket of his shirt and the prescription was handed over to the said decoy-dummy patient. Thereafter a signal was raised and rest of the members of the raiding party arrived at the place of incident and the Police Inspector Shri Shimpi introduced himself as Official of ACB to the said doctor and personal search of the said doctor was carried out and he was asked by the said Police Inspector as to where he has put Rs.5/- which he recovered for the medicines and the same was taken out from the pocket of the shirt and thereafter test of ultra violet lamp was carried out which was found to be positive as well as seizure panchnama and rest of the procedure was carried out. In his cross examination, he has admitted that he was standing outside the room and, therefore, examination of the dummy patient was not viewable as he was behind the curtain. For the physical examination, the doctor took for about five to ten minutes. He has not seen anything and has not heard anything as regards to the doctor asking to give Rs.5/- only. 17. PW-4 Natvarlal Narsibhai who was then serving as PSI, ACB, Rajkot was member of the raiding party has described in his deposition as to how the raid was carried out. He has not seen anything and has not heard anything as regards to the doctor asking to give Rs.5/- only. 17. PW-4 Natvarlal Narsibhai who was then serving as PSI, ACB, Rajkot was member of the raiding party has described in his deposition as to how the raid was carried out. However, in the cross examination, he has admitted that as regards to accepting Rs.5/- as fee from the decoy patient, he cannot say whether it was an amount for illegal gratification or for the medicines and injection because he had not heard anything actually at the time of raid. 18. On overall analysis of the aforesaid evidence on record, indisputably, the prosecution has not examined the complainant Shri Shimpi as well as Investigation Officer as the said officer expired. As such, only evidence of PW-2 and PW-3 i.e. the decoy witness as well as panch who was required to view and hear the conversation between the doctor and the decoy is available on record. On overall analysis of the aforesaid witnesses, it is clearly established that the doctor has in fact examined the decoy witness at his residence and charged Rs.5/- for prescribing medicines as well as for administering injection as testified by the decoy witness and the same thing is also emerging from the evidence of PW-3 who accompanied the decoy. In that view of the matter, in no stretch of imagination, it can be said that the doctor has accepted any amount of illegal gratification as alleged by the prosecution. On the contrary, evidence on record is clearly indicative of the fact that he has charged for the medicines supplied and injection administered to the decoy patient. 19. Even otherwise also on going through the entire record and proceedings, the prosecution has not at all brought on record under what rules or regulations, the doctor who was serving as medical officer in the Government Hospital are banned from carrying out private practice. Not only that, no written instructions or orders are brought on record. In pursuance there of, it is very difficult to believe that the said doctor was banned to carry out private practice as such. 20. Not only that, no written instructions or orders are brought on record. In pursuance there of, it is very difficult to believe that the said doctor was banned to carry out private practice as such. 20. However, this issue is no longer res integra as the in the case of Kanvarjit (supra), the Hon'ble Supreme Court has already decided the present issue wherein the question as before the Hon'ble Supreme Court was as to whether the Government doctor alleged to be doing practice can be booked under the purview of Prevention of Corruption Act or under the Indian Penal Code or whether the same would amount to misconduct under the relevant service rules to which the Hon'ble Supreme Court has decided, more particularly, in para-11 to 16, which read as under: “11. On a critical analysis of the arguments advanced in the light of the definition of ‘corruption’ defined under the Prevention of Corruption Act in its Preamble and under Section 7 of the Act, it clearly emerges that ‘corruption’ is acceptance or demand of illegal gratification for doing an official act. We find no difficulty in accepting the submission and endorsing the view that the demand/receipt of fee while doing private practice by itself cannot be held to be an illegal gratification as the same obviously is the amount charged towards professional remuneration. It would be preposterous in our view to hold that if a doctor charges fee for extending medical help and is doing that by way of his professional duty, the same would amount to illegal gratification as that would be even against the plain common sense. If however, for the sake of assumption, it were alleged that the doctor while doing private practice as Government doctor indulged in malpractice in any manner as for instance took money by way of illegal gratification for admitting the patients in the government hospital or any other offence of criminal nature like prescribing unnecessary surgery for the purpose of extracting money by way of professional fee and a host of other circumstances, the same obviously would be a clear case to be registered under the IPC as also under the Prevention of Corruption Act which is not the case in the instant matter. The FIR sought to be quashed, merely alleges that the appellants were indulging in private practice while holding the post of government doctor which restrained private practice, and charged professional fee after examining the patients. 12. We however, came across a case of Raj Rajendra Singh Seth alias R.R.S. Seth vs. State of Jharkhand And Anr. (2008) 11 SCC 681 , wherein a doctor who had demanded Rs.500/- for giving proper medical treatment to the complainant’s father resulted in conviction of the doctor as it was held in the circumstances of the said case that all the requisites for proving demand and acceptance of bribe were clearly established and the appellant therein was held to have been rightly convicted. However, the prosecution version in the said case disclosed that a written complaint was made to SP., CBI, Dhanbad that on 1.9.1985 one Raju Hadi, a Safai Mazdoor of the Pathological Laboratory Area -9, BCCL, Dhanbad, alleged therein that he had visited Chamodih Dispensary in connection with the treatment of his father who was examined by Dr. L.B. Sah who referred him to Central Hospital, Dhanbad. The complainant’s father was admitted in the Central Hospital and the complainant visited his ailing father who complained of lack of proper treatment and he requested him to meet the doctor concerned. The complainant met Dr. R.R.S. Seth who was treating the complainant’s father. It was alleged by the complainant therein that Dr. R.R.S. Seth demanded a sum of Rs. 500/- from the complainant for giving proper medical treatment to his father and also insisted that the amount be paid to the doctor on 1.9.1985. The doctor also told the complainant Raju Hadi that in case he was not available in the hospital, he should pay the amount to his ward boy Nag Narain who would pass the amount to him. Since the complainant Raju Hadi was not willing to make the payment of bribe amount to the doctor and ward boy, he lodged a complaint to the SP, CBI, Dhanbad for taking necessary action. 13. On the basis of this complaint, which was finally tried and resulted into conviction, came up to this Court (Supreme Court) challenging the conviction. Since the complainant Raju Hadi was not willing to make the payment of bribe amount to the doctor and ward boy, he lodged a complaint to the SP, CBI, Dhanbad for taking necessary action. 13. On the basis of this complaint, which was finally tried and resulted into conviction, came up to this Court (Supreme Court) challenging the conviction. This conviction was upheld by this Court as it was held therein that there is no case of the accused that the said amount was received by him as the amount which he was legally entitled to receive or collect from the complainant. It was, therefore, held that when the amount is found to have been passed to the public servant, the burden is on public servant to establish that it was not by way of illegal gratification. This Court held that the said burden was not discharged by the accused and hence it was held that all the requisites for proving the demand and acceptance of bribe had been established and hence interference with the conviction and sentence was refused. The learned Judges in this matter had placed reliance on the case of B. Noha vs. State of Kerala (2006) 12 SCC 277 , wherein this Court took notice of the observations made in the said case at paras 10 and 11 wherein it was observed as follows:- “………….When it is proved that there was voluntary and conscious acceptance of the money, there is no further burden cast on the prosecution to prove by direct evidence, the demand or motive. It has only to be deduced from the facts and circumstances obtained in the particular case.” 14. The learned Judges also took notice of the observations made by this Court in Madhukar Bhaskarrao Joshi vs. State of Maharashtra,4 (2000) 8 SCC 571 at 577, para 12 wherein it was observed that – “The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established, the inference to be drawn is that the said gratification was accepted “as motive or reward” for doing or forbearing to do any official act. So the word “gratification” need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. ………………………………………................................... So the word “gratification” need not be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. ………………………………………................................... ….. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do official act, the word “gratification” must be treated in the context to mean any payment for giving satisfaction to the public servant who received it.” This decision was followed by this Court in M. Narsinga Rao vs. State of A.P. (2001) 1 SCC 691 Thus in all the cases referred to hereinabove, the amount received was held to be by way of gratification as there could be no escape from the conclusion that it would amount to corruption within the meaning of Prevention of Corruption Act as also the offence under the IPC. 15. But the most important and vital check before a public servant can be booked under the Prevention of Corruption Act, the ingredients of the offence will have to be deduced from the facts and circumstances obtained in the particular case. Judging the case of the appellants on this anvil, it is not difficult to notice that in the case at hand, the amount that is alleged to have been accepted even as per the allegation of the complainant/informant was not by way of gratification for doing any favour to the accused, but admittedly by way of professional fee for examining and treating the patients. However, no presumption can be drawn that it was accepted as motive or reward for doing or forbearing any official act so as to treat the receipt of professional fee as gratification much less illegal gratification. The professional fee even as per the case of the complainant/informant was that this act on the part of the accused appellants was, contrary to the government circular and the circular itself had a rider in it which stated that the government doctor could do private practice also, provided he sought permission from the government in this regard. The professional fee even as per the case of the complainant/informant was that this act on the part of the accused appellants was, contrary to the government circular and the circular itself had a rider in it which stated that the government doctor could do private practice also, provided he sought permission from the government in this regard. Thus the conduct of the appellants who are alleged to have indulged in private practice while holding the office of government doctor and hence public servant at the most, could be proceeded with for departmental proceeding under the Service Rules but in so far as making out of an offence either under the Prevention of Corruption Act or under the IPC, would be difficult to sustain as we have already observed that examination of patients by doctor and thereby charging professional fee, by itself, would not be an offence but as per the complaint, since the same was contrary to the government circular which instructed that private practice may be conducted by the government doctors in the State of Punjab provided permission was sought from the Government in this regard, the appellants were fit to be prosecuted. Thus, the appellants even as per the FIR as it stands, can be held to have violated only the government instructions which itself has not termed private practice as ‘corruption’ under the Prevention of Corruption Act merely on account of charging fee as the same in any event was a professional fee which could not have been charged since the same was contrary to the government instructions. Thus, if a particular professional discharges the duty of a doctor, that by itself is not an offence but becomes an offence by virtue of the fact that it contravenes a bar imposed by a circular or instruction of the government. In that event, the said act clearly would fall within the ambit of misconduct to be dealt with under the Service Rules but would not constitute criminal offence under the Prevention of Corruption Act. 16. In that event, the said act clearly would fall within the ambit of misconduct to be dealt with under the Service Rules but would not constitute criminal offence under the Prevention of Corruption Act. 16. However, the question still remains whether the indulgence in private practice would amount to indulgence in ‘trade’ while holding the post of a government doctor and hence an offence under Section 168 of the IPC, so as to hold that it constitutes a criminal offence in which case that FIR could be held to have made out a prima facie case against the appellants under Section 168 of the IPC on the ground that the appellants who are public servants unlawfully engaged in trade. In our view, offence under Section 168 of the IPC cannot be held to have been made out against the appellants even under this Section as the treatment of patients by a doctor cannot by itself be held to be engagement in a trade as the doctors’ duty to treat patients is in the discharge of his professional duty which cannot be held to be a ‘trade’ so as to make out or constitute an offence under Section 168 of the IPC. As already stated, there may be cases of doctors indulging in cases of medical negligence, demand or accept amount in order to incur favour on the patients which would amount to illegal gratification and hence ‘corruption’, and in such cases offence can most certainly be held to have been made out under the Prevention of Corruption Act also. Cases of unlawful engagement in trade by public servants can also be held to be made out under Section 168 of the IPC if the facts of a particular case indicate that besides professional discharge of duty by the doctor, he is indulging in trading activities of innumerable nature which is not expected of a medical professional as was the fact in the case referred to herein before. But if the medical professional has acted in a manner which is contrary only to the government instructions dehors any criminal activity or criminal negligence, the same would not constitute an offence either under the IPC or a case of corruption under the Prevention of Corruption Act. But if the medical professional has acted in a manner which is contrary only to the government instructions dehors any criminal activity or criminal negligence, the same would not constitute an offence either under the IPC or a case of corruption under the Prevention of Corruption Act. In our considered view, the allegation even as per the FIR as it stands in the instant case, do not constitute an offence either under the Prevention of Corruption Act or under Section 168 of the IPC.” 21. As such in the present appeal, 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 upon the prosecution to prove its case beyond reasonable doubt. In the present case, in view of the aforesaid nature of evidence, it is clear that there is no clinching cogent and reliable evidence beyond reasonable doubt to confirm the conviction and therefore as a result, the learned trial court has committed error in relying upon the version put forth by the prosecution. This Court has also gone through the decisions of the Apex Court in the cases of (i) P. Satyanarayan Murthy vs. District Inspector of Police, State of Andhra Pradesh reported in (2016) 1 SCC (Cri.) 11, (ii) Selvaraj Vs State of Karnataka, reported in (2016) 1 SCC (Cri) 19 and (iii) Krishan Chander Vs State of Delhi, reported in AIR 2016 SC 299. In view of settled position as emerging from the aforesaid decisions, in absence of specific and clinching evidence to prove all such acts by the accused, conviction recorded by learned trial Judge is not sustainable. 22. For the reasons recorded above, the prosecution miserably failed to establish the demand, acceptance and consequently, therefore, the judgment of conviction recorded by the learned Special Judge is not in accordance with the law. Even otherwise also, the act indulged into by the present appellant-accused is not an act within the purview of the provisions of the Prevention of Corruption Act and as such the ratio laid down by the Hon'ble Supreme Court in the case of Kanvarjit (supra) is squarely applicable to this present case. Even otherwise also, the act indulged into by the present appellant-accused is not an act within the purview of the provisions of the Prevention of Corruption Act and as such the ratio laid down by the Hon'ble Supreme Court in the case of Kanvarjit (supra) is squarely applicable to this present case. Therefore, also, he could not have been prosecuted for the offence alleged and for that reasons also, the judgment of conviction recorded by the learned Judge is not sustainable. 23. For the reasons recorded above, the appeal succeeds. The impugned judgment and order dated 19/01/2004 rendered by the learned Special Judge, Fast Track Court, Amreli in Special Case No.3 of 1990 is quashed and set aside. The appellant-accused is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. R & P be sent back to the trial Court, forthwith. (Appeal Succeds)