JUDGMENT : R.P. Dholaria, J. 1. The appellants-accused have preferred these appeals under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 25/04/2006 rendered by the learned Additional Sessions Judge, Fast Track Court, Junagadh in Special Case No. 3 of 1993 whereby the appellants have been convicted for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs. 2,000/- and in default to pay fine, simple imprisonment for a period of two months. The appellants-accused are also convicted for the offence punishable under Section 12 of the Prevention of Corruption Act, 1988 and sentenced to undergo rigorous imprisonment for a period of one year and fine of Rs. 2,000/- and in default to pay fine, simple imprisonment for a period of two months. The appellant-accused No. 2 Nalinkumar Ramshankar Pandya is also 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 for a period of three years and fine of Rs. 3,000/- and in default to pay fine, simple imprisonment for a period of three months. It is also ordered to run all the sentence concurrently. 2. The short facts giving rise to the present appeals are that the complainant Bhanushankar U. Joshi is resident of village Sarsai, Taluka Visavadar, District Junagadh and he was serving at Prempara village in Primary School as Principal and on account of attaining age of superannuation with effect from 01/11/1990 he was superannuated. The complainant entered the service in the year 1953 and selection grade was granted to him by the competent authority with effect from 01/01/1974 though the complainant was entitled for selection grade with effect from 01/01/1973. For redressing his grievance, on 18/10/1991 through Taluka Panchayat, Visavadar a representation was made and forwarded to the District Education Officer pursuant to which on 23/03/1992, order was made by competent authority. The complainant was also made aware that dispute of selection grade of the complainant was resolved and he was entitled to get the benefit of selection grade with effect from 01/01/1973. For getting copy of the said order, the complainant went to the office of Taluka Panchayat, Visavadar and contacted Clerk Shri Pandya and enquired about the selection grade order. The complainant was also made aware that dispute of selection grade of the complainant was resolved and he was entitled to get the benefit of selection grade with effect from 01/01/1973. For getting copy of the said order, the complainant went to the office of Taluka Panchayat, Visavadar and contacted Clerk Shri Pandya and enquired about the selection grade order. The complainant frequently enquired about the copy of the order. On 25/05/1992, an amount of Rs. 500/- was demanded by the accused Shri Pandya to get the copy of the selection grade order and thereafter in persuasion, an amount of Rs. 300/- was agreed to be given. On conversation made with Shri Pandya, it was informed by Shri Pandya that the amount of Rs. 300/- be given through accused Vasantray Dave. As the complainant did not want to give such bribe, he approached the ACB Police Junagadh regarding alleged illegal gratification demanded by accused persons. Accordingly, a trap was arranged and requisition of panchas were made and procedure of trap was made to understand to the complainant as well as other members of the raiding party. Preliminary panchnama was also drawn accordingly. As the trap was successful, thereby the appellants committed the offence as alleged. Hence, the complaint came to be lodged against the appellants-accused. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellants-accused. The charge was framed against the accused persons. The accused persons 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 six 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 defence, learned trial Court delivered the judgment and order, as stated above. 4. Being aggrieved by the same, the appellants have preferred the aforesaid Criminal Appeals before this Court. 5. 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. 4. Being aggrieved by the same, the appellants have preferred the aforesaid Criminal Appeals before this Court. 5. 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. 6. Mr. M.B. Parikh, learned advocate for the appellant-accused Nalinkumar Ramshankar Pandya in Criminal Appeal No. 905 of 2006 has taken this Court through the entire paper book and he has argued that though as per the prosecution version, initial demand was alleged to have been raised by the present appellant-accused Nalinkumar Ramshankar Pandya from the complainant and thereafter during the course of trap, the same was accepted by accused Vasantray Dave. However, during the course of trial, the complainant himself has taken "U" turn in his deposition and he has not at all involved the present appellant Nalinkumar Pandya so far as raising the initial demand as well as actual demand and acceptance at the time of trap is concerned. Consequently, therefore, from the evidence of the complainant, nothing is revealing against the appellant-Nalinkumar Pandya. He has argued that on going through the evidence of shadow panch- PW-2 Rajesh Vadukia, in his deposition, the said shadow witness has deposed that at the time of trap, the deceased accused-Vasantray Dave demanded and accepted the amount of illegal gratification and he has not involved the present appellant-accused Nalinkumar Pandya. In view of the aforesaid nature of evidence available on record, there appears no iota of evidence available against the present appellant-accused Nalinkumar Pandya and even otherwise also, the prosecution has miserably failed to establish any link even between the accused-Vasantray Dave and the accused-Nalinkumar Pandya in view of the depositions of the complainant. Therefore, findings recorded by the learned Judge is not in accordance with law. On that count also, conviction recorded by the learned Special Judge is not at all sustainable at law. Accordingly, the judgment and order of conviction is required to be set aside as such. Therefore, findings recorded by the learned Judge is not in accordance with law. On that count also, conviction recorded by the learned Special Judge is not at all sustainable at law. Accordingly, the judgment and order of conviction is required to be set aside as such. He, therefore, urged to this Court to allow the present appeal and set aside the impugned judgment of conviction. 7. Mr. Pravin Gondalia, learned advocate for the appellant in Criminal Appeal No. 909 of 2006 states that appellant Vasantray Chhaganlal Dave has expired on 05/11/2009 and he has placed on record death certificate of the said appellant. 8. The death certificate of appellant-Vasanatray Chhaganlal Dave is ordered to be taken on record. Consequently, therefore, Criminal Appeal No. 909 of 2006 stands abated qua appellant-Vasantray Chhaganlal Dave. 9. On the other hand, Mr. K.L. Pandya, learned APP has supported the judgment of learned Special Judge and has argued that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellants 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. 10. This Court has heard Mr. M.B. Parikh, learned advocate for the appellant in Criminal Appeal No. 905 of 2006, Mr. Pravin Gondalia, learned advocate for the appellant in Criminal Appeal No. 909 of 2006 and Mr. K.L. Pandya, learned Additional Public Prosecutor for the respondent-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. As per the prosecution version, the appellant-accused Nalinkumar Pandya was serving as Junior Clerk in the office of Taluka Panchayat, Visavadar, District-Junagadh at the relevant time whereas the complainant was retired Principal who had applied for getting order of granting him selection grade and therefore, he met the present accused-Nalinkumar Pandya on 25/05/1992. At that time, present appellant initially demanded Rs. 500/- for getting correct order in his favour and the said amount was scaled down to Rs. 300/- and was further directed to hand over the said amount to the accused Vasantbhai Dave on 03/06/1992. As the complainant was not willing to pay such bribe, he lodged the complaint. Accordingly, a trap was arranged on 03/06/1992. 500/- for getting correct order in his favour and the said amount was scaled down to Rs. 300/- and was further directed to hand over the said amount to the accused Vasantbhai Dave on 03/06/1992. As the complainant was not willing to pay such bribe, he lodged the complaint. Accordingly, a trap was arranged on 03/06/1992. At the time of trap, the accused Vasantray Dave was caught red handed along with tainted currency notes of Rs. 300/- and thereby the offence punishable under Section 7 and Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 was registered against the accused persons. 12. 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. 13. 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. 14. 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. 15. 15. 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. 16. 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. 17. 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. 17. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder. 18. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) & (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. 19. PW-1 Bhanushankar Udayshankar Joshi has deposed that he was serving as Principal of Primary School and he came to be superannuated with effect from 31/10/1990. He has deposed that after retirement, he applied for getting selection grade to the District Education Officer through Taluka Panchayat, Visavadar. He has deposed that he met the appellant-accused Nalinkumar Pandya and at that time, it was replied by the accused Shri Pandya that his order has not yet come. He has deposed that at that time, present appellant-accused Shri Pandya told him to meet the deceased accused Vasantbhai Dave. He has deposed that except that there was no conversation with the appellant-accused Nalinkumar Pandya. He has deposed that thereafter he visited the house of the deceased accused Vasantbhai and inquired about his order of selection grade and at that time, the deceased accused Vasantbhai demanded Rs. 500/- which was scaled down to Rs. 300/- and the deceased accused Vasantray directed him to pay the amount of illegal gratification on 02/06/1992. He has deposed that as he was not willing to pay such bribe, he lodged the complaint before the ACB, Junagadh. He has deposed that except the accused Vasantbhai, no other persons had demanded any amount of illegal gratification from him. Consequently, therefore, he was declared hostile and even after declaring him hostile, extensive cross examination was carried out by learned APP though he had not supported the case of the prosecution. 20. He has deposed that except the accused Vasantbhai, no other persons had demanded any amount of illegal gratification from him. Consequently, therefore, he was declared hostile and even after declaring him hostile, extensive cross examination was carried out by learned APP though he had not supported the case of the prosecution. 20. PW-2 Rajesh M. Vadukia has deposed that he was serving as Junior Clerk in the office of the Collector, Junagadh at the relevant time. He has deposed that he was requisitioned as shadow panch and he was directed to remain present on 03/06/1992 and was made to understand as regard procedure of trap and test of ultra violet lamp and thereafter preliminary panchnama was drawn. He has deposed that on the day of trap, he accompanied the complainant and reached the house of the accused Vasantray Dave at Visavadar and at that time, the accused Vasantray Dave met the complainant and the complainant told the accused Vasantray Dave that he had brought Rs. 300/- as agreed previously. He has deposed that at that time, the accused Vasantray Dave asked for the money and due to which the complainant took out the money from his pocket and handed over to the accused Vasantray Dave and thereafter the accused Vasantray Dave accepted the same and put into his pocket and thereafter the complainant raised pre-arranged signal due to which other members of raiding party arrived there and detailed search and seizure was carried out and test of ultra violet lamp was carried out and it was found to be positive so far as accused Vasantbhai Dave as well as his clothes are concerned. He has deposed that accordingly, detailed panchnama was carried out and tainted currency notes were seized and tallied with the previous panchnama. 21. PW-3 Bipin N. Raval who was co-panch with PW-2 has deposed as regard search and seizure carried out in his presence as well as test of ultra violet lamp which was found to be positive over the accused-appellant-Vasantbhai. 22. PW-4 Babubhai Karsanbhai who was serving as Education Inspector in the Taluka Panchayat, Visavadar has deposed that at the relevant time, the accused Nalinkumar Pandya as well as Shri Raymadia were serving as Junior Clerks and as Shri Raymadia was on sick-leave for about four months, in place of Shri Raymadia, accused Vasantbhai Dave was working by oral order. 22. PW-4 Babubhai Karsanbhai who was serving as Education Inspector in the Taluka Panchayat, Visavadar has deposed that at the relevant time, the accused Nalinkumar Pandya as well as Shri Raymadia were serving as Junior Clerks and as Shri Raymadia was on sick-leave for about four months, in place of Shri Raymadia, accused Vasantbhai Dave was working by oral order. He has deposed that said Vasantbhai was looking after the work of GPF, Pension etc. He has deposed that Shri Pandya was looking after work of accounts, leave etc. He has deposed that case papers of the complainant were lying with the accused Shri Pandya. In the cross examination, he has admitted that the accused Vasantbhai used to deal with subject of granting of selection grade and application of the complainant came to be processed by him. 23. PW-5 Rajnikant Jadav was serving as Deputy District Development Officer, Junagadh at the relevant time and accorded sanction to prosecute the accused Shri Nalinkumar Pandya as well as deceased accused Shri Vasantray Dave and the sanction has been brought on record in his deposition at Exh. 76. 24. PW-6 Gunvantgiri Lalugiri Goswami has deposed that at the relevant time he was working as Police Inspector, ACB at Junagadh. He has deposed that he recorded the complaint of Bhanushankar Joshi and thereafter arranged for trap and carried out the trap as well investigation and after investigation was over, he filed the charge sheet. 25. The prosecution has also produced FIR which came to be lodged by the complainant Bhanushankar Joshi on 02/06/1992, inter alia, alleging that he was granted selection grade with effect from 01/01/1974 instead of 01/01/1973. Consequently, therefore, he applied for getting order through Taluka Panchayat, Visavadar. While processing his application, he met the appellant accused Mr. Pandya. At that time, Mr. Pandya, on 25/05/1992, demanded Rs. 500/- as the amount of illegal gratification which was scaled down to Rs. 300/- and he was directed to pay the said amount on 03/06/1992 through the accused Mr. Vasantray Dave. 26. On overall evaluation of the aforesaid evidence in light of the complaint at Exh. 87 and charge sheet which came to be framed at Exh. 11, the depositions of the complainant is quite contrary to the complaint which he lodged on 02/06/1992 before the PW-6. In his deposition, he merely stated that he met accused Mr. Vasantray Dave. 26. On overall evaluation of the aforesaid evidence in light of the complaint at Exh. 87 and charge sheet which came to be framed at Exh. 11, the depositions of the complainant is quite contrary to the complaint which he lodged on 02/06/1992 before the PW-6. In his deposition, he merely stated that he met accused Mr. Pandya and inquired regarding receipt of his order and except that there was no any other conversation with him. On the contrary, it reveals that he has taken "U" turn in his deposition and he has deposed that he met the accused Vasantray who demanded Rs. 500/- which came to be scaled down to Rs. 300/-. Precisely, pre-demand was attributed on part of the deceased Vasantray and thereafter at the time of trap also, while he met the accused Vasantray, at that time in presence of shadow panch said Vasantray asked for the money and accordingly, he handed over the money to the deceased Vasantray. 27. Similarly, from the oral evidence of PW-2, shadow panch, nothing is revealing against the appellant-accused Nalinkumar Pandya. He has deposed that at the time of trap he was accompanied the complainant and he reached the house of the deceased accused Vasantray and at that time, accused Vasantray asked for Rs. 300/- as agreed previously and accordingly, the complainant handed over the tainted currency notes to him which he had accepted. 28. In view of the aforesaid nature of evidence, though the complaint at Exh. 87 involves the appellant-Nalinkumar Pandya as demander of bribe, however, the complainant while deposing before the learned Special Judge had not deposed involving him and even nothing is revealing from the mouth of PW-2 shadow panch as such. Consequently, therefore, neither the complainant nor the shadow panch is involving the appellant-accused Nalinkumar Pandya as regards to pre-demand and demand at the time of trap and consequently, acceptance on part of the accused Shri Pandya as such. Consequently, there appears no evidence against the appellant-Nalinkumar Pandya to link him with the crime in question. Consequently, therefore, the judgment of conviction recorded against the appellant-accused Nalinkumar Pandya is not sustainable at law. 29. Moreover, one disturbing feature is emerging out from the evidence available on record. Consequently, there appears no evidence against the appellant-Nalinkumar Pandya to link him with the crime in question. Consequently, therefore, the judgment of conviction recorded against the appellant-accused Nalinkumar Pandya is not sustainable at law. 29. Moreover, one disturbing feature is emerging out from the evidence available on record. Gunvantgiri Lalugiri Goswami, Police Inspector has assumed all roles right from the stage of recording complaint, arranging trap as well as members of raiding party, carrying out investigation till filing of charge sheet. This course of action go against the basic tenets of criminal jurisprudence and fair investigation. The credibility of the case of prosecution becomes suspicious on this count only. In the present facts of the case, the status of investigating officer could not be placed on any pedestal higher than of a complainant and the complainant himself cannot be the sole agency of investigation. There should be no occasion to suspect fair and impartial investigation. The said view is fortified by the decision of the Hon'ble Apex Court in the case of "Bhagwan Singh vs. State of Rajasthan", reported in AIR 1976 SC 985 and followed by this Court in the case of "Kanubhai Kantibhai Patel vs. State of Gujarat" reported in 1998 (1) GLH 924 . Therefore, in this case, the prosecution case suffers from the aforesaid basic infirmity which itself is sufficient to vitiate the whole investigation and accordingly the whole proceedings based on such investigation deserves to be quashed and set aside on this count only. 30. This Court has also gone through the impugned judgment rendered by the learned Special Judge. On perusal of it, it appears that learned Special Judge has not recorded findings based upon the evidence available on record and wrongly appreciated the evidence and wrongly recorded the conviction which is not sustainable in law. 31. 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. 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. 32. The materials on record when judged on the touch stone of the legal principles adumbrated hereinabove, leave no manner of doubt that the prosecution, in the instant case, has failed to prove unequivocally, the demand of illegal gratification and, thus, this Court is constrained to hold that it would be wholly un-safe to sustain the conviction of the appellant under Section 13(1)(d)(i), (ii) and (iii) read with Section 13(2) of the Act as well. 33. For the reasons recorded above, the Criminal Appeal No. 905 of 2006 succeeds. The impugned judgment and order dated 25/04/2006 rendered by the learned Additional Sessions Judge, Fast Track Court, Junagadh in Special Case No. 3 of 1993 is quashed and set aside. The appellant-accused Nalinkumar Pandya is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. As appellant Vasantray C. Dave has expired, as stated above, Criminal Appeal No. 909 of 2006 stands abated. R & P be sent back to the trial Court, forthwith. Fine, if any paid, be refunded forthwith.