JUDGMENT : 1. The aforementioned both the appeals arise out of the same judgment of conviction recorded by the learned Special Judge, Amreli in Special Case No.10 of 2000. Therefore, they are being heard and decided by this common judgment. 2. The appellants have preferred the present appeals under Section 374(2) of the Code of Criminal Procedure, 1973 against the judgment of conviction dated 19.11.2003 rendered by learned Special Judge, Amreli in Special Case No.10 of 2000. 3. The appellants have been charge-sheeted for having committed the offence punishable under Sections 7, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. The trial of the said case was conducted before the learned Special Judge, Amreli. At the conclusion of the trial, the learned Special Judge, Amreli was pleased to hold the present appellants guilty for having committed the offences punishable under Section 13(2) read with Section 13 (i) (d) of the Prevention of Corruption Act, 1988, and has directed them to suffer rigorous imprisonment for a period of 5 years with a fine of Rs.25,000/- and in default of payment of fine to suffer further simple imprisonment for a period of 6 months. The appellants of course have been acquitted of the offences punishable under Sections 7 and 12 of the said Act. Being aggrieved by the same, the appellants have preferred the aforesaid Criminal Appeals before this Court. 4. By way of preferring the present appeals, the appellants have mainly contended that learned Special Judge, Amreli has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned Special Judge, Amreli 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. 5. Learned advocate Mr. Umesh A. Trivedi for the appellants has taken this Court through the impugned judgment as well as evidence of the witnesses on record, and argued that the ACB cases were registered upon the secret information received by the one Police Inspector namely Mr. K.D. Parmar, who was serving at the relevant point of time, at Anti Corruption Bureau at Rajkot. Umesh A. Trivedi for the appellants has taken this Court through the impugned judgment as well as evidence of the witnesses on record, and argued that the ACB cases were registered upon the secret information received by the one Police Inspector namely Mr. K.D. Parmar, who was serving at the relevant point of time, at Anti Corruption Bureau at Rajkot. The Deputy Mamlatdar, Mid Day Meal Schemes was used to deduct Rs.25%, out of the amount payable to the various organizers of the Mid Day Meal, which are within the periphery of the District Amreli, and such amount was illegally recovered as gratification. Upon such information, he had made his own verification as regards the such information, and thereafter, Mr. K.D. Parmar, Police Inspector himself has carried out the raid and during the course of raid, he arranged for two independent panchas, who are requisitioned from the Office of Employment Exchange, Rajkot, and carried out raid. During the course of raid about Rs.19,075/- amount was found to be in excess and presumably, it was recovered as the illegal gratification from the payment came to be made during the course of the day to the various organizers, who were running the Mid Day Meal Schemes at the various places located in the various villages of Taluka Amreli. Thereby, upon such raid, he himself made complaint, and that complaint came to be forwarded to the concerned Special Judge on the following day, and thereafter, the investigation was taken out by P.W.5 Mr. Pruthvibhai Rumalbhai Parmar, and he recorded the statement of some of the witnesses. Thereafter, after conclusion of investigation, the charge-sheet was filed by P.W.6 Mr. Kishorsinh Jorubhai Gohil, and he argued that on going through the entire evidence available on record, there is no legal evidence as regard to the demand, acceptance and recovery of the aforesaid illegal gratification alleged to have been taken by the present appellants accused, as such. He has argued that the prosecution has only examined two independent witnesses i.e. P.W.3 Mr. Haribhai Amrabhai Dabhi and P.W.4 Dharmendrakumar Rasiklal, who were running the Mid Day Meal Center and they did not support the case of the persecution. Consequently, therefore, they have been declared hostile. In view thereof, except the evidence of the complainant, who himself has carried out the raid, who himself has received the information, no legal evidence is available on the record. Consequently, therefore, they have been declared hostile. In view thereof, except the evidence of the complainant, who himself has carried out the raid, who himself has received the information, no legal evidence is available on the record. He has further argued that the complainant neither written down any such secret information which he has received nor he had examined or verified veracity as regards such information, and nothing has brought on record as regards such secret information. Only upon the strength of such information he directly laid down the trap, and he himself became the leader of the trap team. Consequently the entire investigation get vitiated when he has received the information, he himself has carried out the raid, and thereafter, he himself has become the complainant and lodged complaint before himself. He has further argued that, as the independent witnesses were not supporting the case of the prosecution, consequently, therefore, the prosecution has not examined the independent witnesses though the independent witnesses have been mentioned in the charge-sheet for about 70 witnesses only 2 witnesses which is P.W. 3 and P.W.4 were examined and they did not support the case of the prosecution. In that view of the matter, in absence of any linking evidence, the learned Special Judge has recorded the reasons that the case is based upon the mathematical conclusion and during the course of trap the excess amount of Rs.19,075/- were found from the custody of the appellants accused and consequently, therefore, it was required to be presumed that the said amount was accepted as the illegal gratification. He has further argued that the learned Special Judge though raised the point of determination and recording the findings, wherein, the learned Special Judge has also recorded the findings that the vital ingredients as regards the demand, acceptance and recovery is proved. However, while passing the final order, he has recorded that the prosecution miserably failed to establish as such and in consequence, therefore, they have been convicted under Section under Section 13(2) read with Section 13 (i) (d) of the Prevention of Corruption Act, 1988. 6. On the other hand, learned Additional Public Prosecutor Ms. However, while passing the final order, he has recorded that the prosecution miserably failed to establish as such and in consequence, therefore, they have been convicted under Section under Section 13(2) read with Section 13 (i) (d) of the Prevention of Corruption Act, 1988. 6. On the other hand, learned Additional Public Prosecutor Ms. H.B. Punani for the respondent State has taken this Court through the impugned judgment as well as evidence on record and argued that this is a clear case wherein during the course of trap, the aforesaid amount of Rs.19,075/- was found to be excess. While the trap was carried out, the appellants accused could not explain properly, and consequently, therefore, when such an amount was found to be excess and the complainant had already deposited that the appellant as well as other officials used to deduct 25% of such amount payable to the respective organizers of the Mid Day Meals Center and out of such deduction that amount used to be shared in between 5 persons in equal proportion of 20% including the Deputy Collector, Mamlatdar and 3 accused named therein in the FIR. She has further argued that the learned Special Judge has recorded ample reasons for arriving at the findings and the findings are based upon the evidence available on record. Therefore, this Court may not disturb with the findings recorded and ultimately conviction recorded by the learned Special Judge. 7. As per the prosecution case, the appellants were serving as the Deputy Mamlatdar and as Clerk in the Office of Deputy Mamlatdar, Mid Day Meals situated in the Mamlatdar office compound at Amreli and were in-charge of the disbursement of advance amount to the various organizers of Taluka Amreli and while doing so it is alleged that they used to deduct 25% of the said amount payable to the various organizers, and they were collecting illegal gratification, and thereby, while the trap was carried out on 04.03.1998, at that time the excess amount of Rs.19,075/- was found to be against the illegal gratification recovered from the various organizers who visited for collecting the amount for running for Mid Day Meals Centers and thereby committed the offences punishable under Sections 7, 12, 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988. In order to bring home guilt on the part of the appellants accused, the prosecution examined about 6 witnesses as well as produced documentary evidence on the record from P.W.1. 8. P.W.1 - Mr. Kachrabhai Dalabhai Parmar, who was the Police Inspector, Rajkot in Anti-Corruption Bureau at the relevant time, has deposed that from his source, he received secret information that the officials, who are serving in the Office of Mamlatdar, Mid Day Meals Schemes were collecting 25% from the amount payable to the various organizers of the concerned area and that fact is verified by himself, and he found it to be true. Therefore, he reported the same to the Assistant Director, and thereafter, the said Assistant Director permitted him to make surprise checking. In order to carry out the surprise checking he requisitioned to panchas from the Government Press, Rajkot and proceeded on such surprise checking around 4-45 hours from Rajkot, and they reached at about 5.30 hours on 04.03.1998 at the Office of Mamlatdar and carried out the surprise checking. At that time, the other members of raiding party as well as Panchas accompanied and he introduced himself to be an Inspector of Police, Anti-Corruption Bureau. Thereafter, the persons, who were found present in the said office were directed to remain as it, and thereafter, he has found in all 3 persons, who came to be charge-sheeted and for about 8 persons were also found there who had come there for collecting the payment from them. Thereafter, a detailed checking as well as account verification and cash verification were carried out in presence of the members of the raiding party as well as Panchas wherein Rs.19,075/- was found to be in excess, and the same was alleged to have been received by them as illegal gratification. In the cross-examination, he admitted that before carrying out any such surprise checking or search and seizure, he had not obtained any search warrant. He has also admitted that he had not reduced into writing the secret information nor reduced the same into writing nor he has made any entry in the station diary. He has also admitted that while the trap was carried out at that time about 8 organizers were present and they were interrogated and their statements were recorded. He has also admitted that he had not reduced into writing the secret information nor reduced the same into writing nor he has made any entry in the station diary. He has also admitted that while the trap was carried out at that time about 8 organizers were present and they were interrogated and their statements were recorded. He had also admitted that, he had not verified as to how much amount they have received from the respondent, and as to how much amount they have credited in their own accounts at their centers. He has further admitted that while checking the books of cash on hand in the office of the appellants accused, he came to know that about 68 organizers had received the payment during that day. He had also admitted that, he did not receive any such information that the amount to the extent of 25% was deducted from the amount payable to the organizers . He has also admitted that, he lodged the complain after carrying out checking on 05.03.1998. He had also admitted that in the said offence, according to him five persons were involved, and consequently, therefore, he lodged the complainant naming the said five persons. He had also admitted that as per the information received by him, 25% of the amount was going to be illegal gratification, and the same was to be distributed amongst the Deputy Collector, Mamlatdar and 3 accused 20% each respectively. 9. P.W.2 – Jagubhai Bhurabhai has deposed that on 04.03.1998, he was serving in the Office of Government Press, Rajkot. He was requisitioned as the Panch by Anti-Corruption Bureau, Rajkot, and he accompanied the raiding party. On that day, they reached Amreli Mamlatdar Office at about 5.15 where detailed checking was carried out in the Office. At that time, a detailed panchnama was carried out, in which excess amount was found. However, in his cross-examination, he admitted that the original accused No.1 Rameshchandra Madhavlal Mirani and accused No.2 Meghjibhai Shardulbhai Ketaria tendered the explanation for the excess cash found while carrying out checking, and he explained that the said amount of Rs.19,000/-, he brought for purchasing bangles for his wife and Rs.75/- was for purchasing the revenue stamp. However, in his cross-examination, he admitted that the original accused No.1 Rameshchandra Madhavlal Mirani and accused No.2 Meghjibhai Shardulbhai Ketaria tendered the explanation for the excess cash found while carrying out checking, and he explained that the said amount of Rs.19,000/-, he brought for purchasing bangles for his wife and Rs.75/- was for purchasing the revenue stamp. He has also admitted that during the course of interrogation of the organizers made by the checking party or raiding party he did not hear anything and further he has admitted that in his presence none of the organizers has complained that the appellants accused were deducting 25% amount from their payment. 10. P.W.3 – Haribhai Amrabhai Dabhi, who is one of the organizers of school situated at village Rangpur, and he was organizer of Mid Day Meals Schemes. He has deposed that for obtaining the advance payment for running the Mid Day Meals Schemes, they used to tender the necessary papers to the accused Mirani, who used to process and in fact paying the same to them, and they do not deal with accused Khetariya. He has deposed that, on 04.03.1998, he was to receive Rs.1,200/-, which in fact was paid to him by accused Mirani and in view thereof his signature was obtained by the accused on the revenue receipt. He has denied that any amount was cut as the illegal gratification from Rs.1200/- and he was declared as hostile as he did not support the case of prosecution. However, in the cross-examination, he admitted that on 04.03.1998, in fact, he received Rs.1,200/- from the appellants accused and he credited same in the Roznama maintained by him in his center. 11. P.W.4 – Dharmendrakumar Rasiklal has deposed in detail in his deposition that since 1986 he was working as an organizer in different schools managed by the Mamlatdar Office, Amreli for Mid Day Meals. On the day of checking i.e. on 04.03.1998, he was present at that time the raid was carried out and he did not receive any amount, but he was found present in the lobby of Mamlatdar Office, and he was directed to remain present over there by the raiding party further. He deposed that whatever the advance money was asked from the Mamlatdar office, he used to receive the entire amount. He denied that there was a deduction to the extent of 25% as an illegal gratification. He deposed that whatever the advance money was asked from the Mamlatdar office, he used to receive the entire amount. He denied that there was a deduction to the extent of 25% as an illegal gratification. Consequently, therefore, he was declared hostile, and he did not support the case of prosecution. In the cross-examination, he admitted that the day on which the raid was carried out, he did not receive any payment and he also admitted that no amount was deducted as illegal gratification from him. He has also deposed that the advance payment was given upon signing the revenue stamp and no deduction was ever made from his amount. 12. P.W.5 – Mr. Pruthvibhai Rumalbhai Parmar has deposed that on 05.03.1998 while he was serving as P.I., ACB, Amreli, he received the complainant lodged by the complainant Mr. K.D. Parmar and he registered the offence. Thereafter, he arrested the accused and carried out the investigation and recorded the statements etc. However, in the cross-examination, he had admitted that he did record the statements of accused. He has also admitted that the accused No.1 explained as regards the excess amount found at the time of trap. He also admitted that there was no evidence against the original accused No.3 – Mr. Laxmanbhai Ishwarlal Taheliyani. He also admitted that the rest of the 2 accused were not arrested as no evidence was available against them. 13. P.W.6 – Mr. Kishorsinh Jorubhai Gohil has deposed that he on the receipt of the investigation papers filed the charge-sheet. In the cross-examination, he admitted that the complaint was filed against 5 persons. He also admitted that there was an allegation against each one of them taking illegal gratification to the extent of 20% each. He also admitted that though the charge-sheet came to be filed against 3 persons only. 14. The 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 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. 15. 15. 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-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 acceptance the money knowing it to be bribe, conviction cannot be sustained. 16. 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. reported 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. 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. 17. 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. 17. Having heard learned advocates for the respective parties and having gone through the impugned judgment as well as evidence on the record, and on overall analysis of facts and circumstances as well as evidence on the record, this Court finds that this case is somewhat unusual wherein the official who was serving in the Anti-Corruption Bureau, Rajkot received certain information as regards the corrupt practice indulged into by the appellants accused, and their other staff members, who were serving in the Mamlatdar Officer, Amreli. Upon the strength of such information, a trap was led and such information was received by the Police Inspector, Mr. K.D. Parmar P.W.1, who himself had carried out the entire trap as well as he himself had also to carried out to certain extent the investigation, and in presence of one Panch during the course of taking account of the case in the Office of the present appellants accused, an amount of Rs.19,075/- was found to be in excess than the record. The complainant believed it to have been received as the illegal gratification by deducting money at the rate of 25% from the payments that were made to the 68 organizers, who were running the Mid Day Meals Centers in different villages situated in the Taluka Amreli. In order to establish the aforesaid deduction as the illegal gratification received from the various different 68 organizers of different schools, the investigating agency had recorded the statements of all the 68 organizers. Not only that, but the statements of the persons who were found present over there and even those who had not received the payment on that day were also recorded and they were shown as the witnesses. In order to prove that the appellants accused were indulging into such corrupt practice in day to day discharging of their official duty by way of deducting 25% amount from the payments made to the organizers of the Mid Day Meal Centers as the illegal gratification. However, on going through the record and proceedings, surprisingly the prosecution has examined P.W. 3 and 4 only who had not supported the case of prosecution. However, on going through the record and proceedings, surprisingly the prosecution has examined P.W. 3 and 4 only who had not supported the case of prosecution. In consequence whereof, the learned Additional Public Prosecutor who conducted the case before the learned Special Judge, by way of tendering a closing prusis of at Ext.35, declared that as none of the, rest of the witnesses of about 67 were supporting the case of the prosecution. Consequently, therefore, they were not examined. 18. In view of the aforesaid factual scenario, this Court has gone through the entire evidence available on the record, in presence of the learned Additional Public Prosecutor and learned advocates who are representing the appellants accused and on going through the entire material on record, no legal evidence at all is available on record to connect the accused with the crime in question. Even, if the excess amount was found to the extent of Rs.19,075/- may be believed to be true upon the strength of the information received by the complainant, as the amount was of the illegal gratification retained by the appellants accused then in that case the prosecution had to prove by leading a clenching evidence as to how the aforesaid amount and from whom the aforesaid amount came to be demanded and accepted and such an excess amount came to be received by the appellants accused as the illegal gratification whereof and without bringing on record the evidence as regard to demand an acceptance of the illegal gratification merely on the strength of the information received by the complainant that the appellants accused were in habit of indulging into corrupt practice were making payments to the various centers organizers cannot be believed. In nutshell, as this was not the usually sort of the raid wherein the prior demand could be there and in pursuance to the demand usual trap is to be laid. But in the present case, upon the strength of the secret information, the surprise checking and trap was carried out wherein the aforesaid amount of Rs.19,075/- was found to be in excess. But in the present case, upon the strength of the secret information, the surprise checking and trap was carried out wherein the aforesaid amount of Rs.19,075/- was found to be in excess. In that view of the matter, in order to establish guilt on the part of the present appellants accused that they have received the aforesaid amount as the illegal gratification from various persons of about 68 persons, their evidence was required to be brought on record so as to establish that the aforesaid amount is cut down as the illegal gratification from the 68 organizers. Unless such sort of the evidence is brought on the record, no finding could be recorded upon presumption of the complainant though which has been done by the learned Special Judge, which is not sustainable at law. 19. For the reasons recorded above there appears no legal evidence to link the accused with the crime in question. Therefore, the Appeals succeed. The judgment of conviction recorded by the learned Special Judge, Amreli in Special Case No.10 of 2000 is not sustainable at law, and therefore, the same is set aside. R & P be sent back to the trial Court, forthwith. Bail bond, if any, stands cancelled.