JUDGMENT : 1. 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.700 of 2000 is preferred by the appellant–Vithalbhai Haribhai Patanvadia-original accused No.1 who expired during pendency of the appeal and hence, his heirs and legal representatives have been brought on record and they are pursuing the present appeal and Criminal Appeal No.746 of 2000 is preferred by Himatbhai Mithabhai Kataria–original accused No.2 against the judgment and order dated 10.7.2000 passed in Special Case (ACB) No.12 of 1996 by learned Additional Sessions Judge, Nadiad whereby both the original accused were 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 to pay fine of Rs.2000/-, in default, to undergo further six months simple imprisonment, to undergo six months rigorous imprisonment and to pay fine of Rs.1000/-, in default, to undergo further six months simple imprisonment for the offence under section 12 of the said Act and also to undergo one year rigorous imprisonment for the offence under section 13(1)(d) of the Act and the sentences were ordered to run concurrently. 3. The short facts giving rise to the present case are that on 26.4.1996, two unknown police constables came to the house of the complainant and he was being called by the Police Sub Inspector of Amdavadi Police Chowky, Nadiad. It is alleged that therefore the complainant visited the police station, at that time, the persons who came to call the complainant were not present, but the writer of the PSI was present. It is alleged that the complainant was not knowing the name of the writer, but he knew him and thereafter the said writer arrived nearby the complainant and told him that his wife has lodged the complaint against him and if he wants to settle the case, then he would have to pay to the PSI–accused No.1. It is alleged that the said writer told the complainant that accused No.1 is demanding Rs.2000/-. The complainant shown his inability to pay the said amount and thereafter he met to accused No.1, at that time, accused No.1 told him and demanded the same amount of Rs.2000/- which ultimately was scaled down to Rs.1500/-. It is alleged that the said writer told the complainant that accused No.1 is demanding Rs.2000/-. The complainant shown his inability to pay the said amount and thereafter he met to accused No.1, at that time, accused No.1 told him and demanded the same amount of Rs.2000/- which ultimately was scaled down to Rs.1500/-. It is alleged that the complainant was directed to pay the said amount on the same day evening or on the following day. As the complainant was not willing to pay the amount of bribe, he lodged the complaint against the accused No.1. Thereafter, the trap was arranged wherein the accused were caught red handed and thereby they have committed the offence, as alleged. 4. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the 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 Code of Criminal Procedure and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order convicting the appellants accused, 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. So far as Criminal Appeal No.700 of 2000 is concerned, Mr. K.J. Shethna, learned senior advocate assisted by Mr. 7. So far as Criminal Appeal No.700 of 2000 is concerned, Mr. K.J. Shethna, learned senior advocate assisted by Mr. Adil Mehta, learned advocate for the appellant–original accused No.1 has taken this Court through the entire Record and Proceedings and evidence of material witnesses and argued that evidence of the complainant is not satisfactory as regards as to who has raised initial demand, instant demand and demand at the time of trap and as to who has accepted the amount of illegal gratification as such. He submitted that during the course recording testimony of the complainant, the complainant has made certain improvements as regards to instant demand and acceptance and it has been already proved to be improvements during the course of recording the evidence of the Investigating Officer–PW 8 and, therefore, as per his submission, entire conversation as regards to instant demand and acceptance goes away from the record. He submitted that therefore even if the tainted currency notes came to be recovered from the person of accused No.2 becomes irrelevant as such. He submitted that since material improvements are made as regards to implicating the appellant accused in the crime in question and that had been proved during the course of trial and, therefore, whatever stated by the shadow panch becomes valueless. He submitted that the shadow panch has made other material improvements in his deposition and his evidence also suffers from the vice of contradiction and on that count, the evidence of the shadow panch is also not linking the accused with the crime in question. He submitted that as regards to pre-demand on the basis of which the complaint at Exh.24 came to be lodged is also not getting proved in the testimony of the complainant–PW 1 and therefore, precisely, he has argued that the prosecution has miserably failed to prove pre-demand, instant demand and the demand at the time of trap. He, therefore, submitted that the appellant–original accused is required to be acquitted, as such. 8. So far as Criminal Appeal No.746 of 2000 is concerned, Mr. Maulik Nanavati, learned advocate for the appellant has argued that appellant–original accused No.2 has argued that even if the entire case of the prosecution may be accepted in toto, then the role of the appellant herein is revealing to the extent that he unknowingly and unintentionally acted at the dictation of his superior. Maulik Nanavati, learned advocate for the appellant has argued that appellant–original accused No.2 has argued that even if the entire case of the prosecution may be accepted in toto, then the role of the appellant herein is revealing to the extent that he unknowingly and unintentionally acted at the dictation of his superior. He submitted that as per the complaint at Exh.24, the complainant was called by two constables and they were never found present at the time of trap or thereafter the person who raised demand prior to lodging the said complainant was the Writer of accused No.1. He submitted that Writer has been examined as PW 6 and one another constable was found there, but indisputably, name of accused No.2 was not mentioned in the complaint and no such narration is forthcoming in the entire deposition of the complainant that at the time of actual trap, as per the dictation of accused No.1, the present accused No.2 accepted and he came to be identified as demander and acceptor on behalf of accused No.1. Similarly, no other evidence has been brought on record to link with the identity of the appellant–original accused No.2 that he has acted at the dictation of accused No.1. He submitted that in view of the fact that identity of the accused No.2 remained undisclosed as his name was not mentioned, but after conclusion of search and seizure, the name of accused No.2 was disclosed, except that no incriminating material as regards to identity of the accused No.2 is being established by the prosecution to link him with the crime in question. He submitted that there appears no uniformity in the evidence of the witnesses that in which manner the appellant–accused No.2 has accepted the amount of illegal gratification. He, therefore, submitted that the appellant–original accused is required to be acquitted, as such. 9. On the other-hand, Mr. K.L. Pandya, learned APP has supported the judgment rendered by learned trial Court. He 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. He 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. He 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. He submitted 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. 10. This Court has heard Mr. K.J. Shethna, learned senior advocate assisted by Mr. Adil Mehta, learned advocate for the appellant–original accused No.1, Mr. Maulik Nanavati, learned advocate for appellant–original accused No.2 and Mr. K.L. Pandya, 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, as stated above, on 26.4.1996, two unknown police constables came to the house of the complainant and he was being called by the Police Sub Inspector of Amdavadi Police Chowky, Nadiad. It is alleged that therefore the complainant visited the police station, at that time, the persons who came to call the complainant were not present, but the writer of the PSI was present. It is alleged that the complainant was not knowing the name of the writer, but he knew him and thereafter the said writer arrived nearby the complainant and told him that his wife has lodged the complaint against him and if he wants to settle the case, then he would have to pay to the PSI–accused No.1. It is alleged that the said writer told the complainant that accused No.1 is demanding Rs.2000/-. The complainant shown his inability to pay the said amount and thereafter he met to accused No.1, at that time, accused No.1 told him and demanded the same amount of Rs.2000/- which ultimately was scaled down to Rs.1500/-. It is alleged that the complainant was directed to pay the said amount on the same day evening or on the following day. As the complainant was not willing to pay the amount of bribe, he lodged the complaint against the accused No.1. Thereafter, the trap was arranged wherein the accused were caught red handed and thereby they have committed the offence, as alleged. 13. PW 1–Pujabhai Ganeshbhai Marwadi has been examined at Exh.23. As the complainant was not willing to pay the amount of bribe, he lodged the complaint against the accused No.1. Thereafter, the trap was arranged wherein the accused were caught red handed and thereby they have committed the offence, as alleged. 13. PW 1–Pujabhai Ganeshbhai Marwadi has been examined at Exh.23. The witness has deposed that he got married with Hiraben and that as he was remaining outside the home for plying rickshaw, there was some marital dispute with his wife and therefore his wife lodged the complaint, due to which, two police officials came to call him. The witness has deposed that therefore when he reported at Amdavadi Police Station, at that time, one police constable was present at the police station who asked him to pay Rs.2000/- for settling the case and thereafter accused No.1 arrived there and he told him that unknown police constable has demanded the money. The witness has deposed that he told accused No.1 that he has no Rs.2000/- as he is plying rickshaw, but he would pay Rs.1500/- in the evening. The witness has deposed that thereafter he lodged the complaint. At the time of trap, the witness was accompanied along with the panch and they met to accused No.1 wherein accused No.1 asked as to whether he has brought money as he has not brought yesterday. The witness has deposed that at that time, accused No.1 called one constable who was standing outside the chamber and thereafter the witness was asked to pay him and thereafter he as well as panch had gone inside the chamber and handed over the amount of illegal gratification to the said constable who accepted it and then placed the amount in the pocket of his pant. The witness has deposed that thereafter he raised prearranged signal and hence other members of the raiding party arrived there and that tainted currency notes were recovered from the person of the accused No.2 as such. However, as regards to crucial conversation between the accused No.1 and the complainant proved as improvement in the cross examination of this witness. Taking into consideration the evidence at pages 123 and 263 of the paper book of PW 1 and PW 8–Investigating Officer, the improvements and other contradictions have been brought on record in the cross examination of the witness. 14. PW 2–Mahammad Iqbal Sulemanbhai Mukhi has been examined at Exh.25. Taking into consideration the evidence at pages 123 and 263 of the paper book of PW 1 and PW 8–Investigating Officer, the improvements and other contradictions have been brought on record in the cross examination of the witness. 14. PW 2–Mahammad Iqbal Sulemanbhai Mukhi has been examined at Exh.25. The witness has deposed that at the relevant time, he was serving as Assistant Mechanic in the ST Corporation and that he was requisitioned as shadow panch. The witness has deposed that at the time of trap he was accompanied with the complainant and while they reached to the police station, accused No.1 was found in simple dress and one another constable was also there. The witness has deposed that at that time, accused No.1 told the complainant that he did not report yesterday, in turn, the complainant said that he could not arrange for money. Thereafter, accused No.1 demanded the amount of illegal gratification and directed the constable who was in simple dress to accept the said amount and that the said constable accepted the said amount and placed into the pocket of his pant. The witness has deposed that in view of the prearranged signal given by the complainant, other members of the raiding party arrived there, search and seizure was carried out and during the search and seizure, the name of accused No.2 was revealed as Himatbhai Kataria. In the cross examination of the witness, lots of exaggeration as regards to contents of the complaint as well as actual conversation took place at the time of trap between the complainant and the accused had been brought on record. However, as the material improvements are already proved during the course of recording the evidence of the complainant and therefore, the evidence of panch to that extent becomes irrelevant as such. 15. PW 3–K. Laxminarayan Roy has been examined at Exh.34. The witness has deposed that he was serving as District Superintendent of Police who accorded sanction to prosecute accused No.2 and sanction is brought on record vide Exh.35. However, in the cross examination of this witness, he admitted that nothing revealed from the papers that accused No.2 had ever demanded Rs.1500/- as the amount of illegal gratification. It is also very surprising that Exh.35 was signed by previous DSP Mr. Keshavkumar, but as he replaced Mr. Keshavkumar and hence, he signed Exh.35. 16. However, in the cross examination of this witness, he admitted that nothing revealed from the papers that accused No.2 had ever demanded Rs.1500/- as the amount of illegal gratification. It is also very surprising that Exh.35 was signed by previous DSP Mr. Keshavkumar, but as he replaced Mr. Keshavkumar and hence, he signed Exh.35. 16. PW 4–Rajkumar Benjamin has been examined at Exh.39 to prove sanction accorded against accused No.1 which is at Exh.40. 17. PW 6–Amrutbhai Chhaganbhai has been examined at Exh.46. The witness has deposed that he was serving as Writer Constable of accused No.1 and that complainant was brought before him on 26.4.1996 at Amdavadi Police Choki as his wife lodged the complaint against him. At that time, Himatsinh Chavda was also present and that accused No.1 told him to take custody of the accused. 18. PW 7–Himatsing Bhimsing Chavda has been examined at Exh.47. The witness has deposed that he was serving as Police Constable in Nadiad Town Police Station and accused No.1 had never entrusted any investigation of M.Case No.12 of 1996. 19. PW 8–Chandrakant Chhaganlal Raval has been examined at Exh.48. The witness has deposed that the complainant lodged the complaint before him and hence, he arranged for trap and recorded the statement of the complainant as well as of other witnesses. In his deposition, more particularly, at page 263 of the paper book, improvement as regards to conversation took place between the complainant and the accused at the time of trap had been brought on record by the defence. 20. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A.Subair Vs 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. 21. 21. In State of Kerala and another Vs 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. 22. 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. 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. 23. 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. 24. 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. 24. 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. 25. 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 there for, 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. 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. 26. On overall appreciation of the entire evidence on record, more particularly, the FIR at Exh.24, it appears that on 26.4.1996 the complainant was alleged to have been called by accused No.1 through two his subordinate police officials. When the complainant visited accused No.1 on the same day, the persons who came to call him were not present, however, the Writer Constable of accused No.1 was present and he alleged to have appraised the complainant that for settling the case lodged by his wife, he would require to pay Rs.2000/- as illegal gratification to accused No.1 and the same was also alleged to have been told by accused No.1 to the complainant. Indisputably, except accused No.1, the complainant has not named any accused in the complaint. 27. This Court has also gone through the oral evidence of the complainant as well as shadow panch in light of the FIR and other material available on record. Indisputably, except accused No.1, the complainant has not named any accused in the complaint. 27. This Court has also gone through the oral evidence of the complainant as well as shadow panch in light of the FIR and other material available on record. It appears that there were several police constables who were working in Amdavadi Police Station at Nadiad. Indisputably, accused No.2 was not named in the complaint. On going through the complaint as well as evidence available on record, no incriminating material is revealing against accused No.2 either as regards to demand or acceptance. Over and above, nothing is revealing attributing any sort of mens rea on the part of accused No.2 as the allegations are revealing to the extent that he alleged to have followed the dictation of accused No.1. However, the prosecution has miserably failed to establish and bring on record the identity of accused No.2, but in fact, at the time of actual trap, accused No.2 demanded the amount of illegal gratification at the behest of accused No.1 and accepted the amount of illegal gratification, as such. Such sort of evidence could have been brought on record by way of recording the statements of the complainant as well as panch disclosing identity of accused No.2 who at the time of trap, in fact, acted on behalf of accused No.1 and in reality, accepted the amount of illegal gratification, but the said exercise has not been done by the prosecution in order to establish the role played by accused No.2 at the behest of accused No.1. In absence thereof, accused No.2 could not be linked with the crime in question, as such. Even otherwise also, on accepting the case of the prosecution in toto, neither it is revealing that accused No.2 has ever demanded any amount from the complainant and he accepted as such as demander thereof. 28. So far as accused No.1 is concerned, as narrated above, in the testimony of the complainant himself, he has made lots of improvements during the course of his deposition wherein so far as crucial conversation as regards to trap involving accused No.1 is concerned, he has made improvements and the said improvements are proved, more particularly, at pages 123 and 263 of the paper book. Ignoring the aforesaid improvements, nothing is revealing as regards to instant demand at the time of trap so far. Ignoring the aforesaid improvements, nothing is revealing as regards to instant demand at the time of trap so far. So far as pre-demand is concerned, though Exh.24 complaint clearly indicates that accused No.1 demanded Rs.2000/- which came to be scaled down to Rs.1500/-, however, such fact is not stated by the complainant in his testimony. Therefore, even the pre-demand is also not getting proved from the evidence on record. 29. In view of the aforesaid nature of evidence, the prosecution has miserably failed to establish pre-demand as well as instant demand at the time of trap and therefore, even if recovery is effected from the person of accused No.2, it would render meaningless. Even otherwise, the role of accused No.2 is also not revealing that he has ever abetted to accused No.1, as such. In this view of the matter, the findings recorded and ultimate conclusion arrived at by learned trial Judge is not sustainable and therefore, the impugned judgment and order of conviction against the accused deserves to be set aside. 30. In view of the above discussion, the following final order is passed; Criminal Appeal No.700 of 2000 preferred by the appellant–Vithalbhai Haribhai Patanvadia-original accused No.1 and Criminal Appeal No.746 of 2000 preferred by the appellant–Himatbhai Mithabhai Kataria-original accused No.2 in Special Case (ACB) No.12 of 1996 are allowed. The impugned judgment and order dated 10.7.2000 passed in Special Case (ACB) No.12 of 1996 by learned Additional Sessions Judge, Nadiad 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.