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2017 DIGILAW 318 (GUJ)

Rajeshkumar Ram Kumar Bansal v. State of Gujarat

2017-02-08

R.P.DHOLARIA

body2017
JUDGMENT : R.P. Dholaria, J. 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. 1622 of 2009 is preferred by the appellant-Rajeshkumar Ramkumar Bansal who is original accused No. 1 and Criminal Appeal No. 1697 of 2009 is preferred by the appellant-Duryodhansinh Daultasinh Yadav who is original accused No. 2 against the judgment and order dated 29.08.2009 passed by the learned Special Judge and Additional Sessions Judge, Bhuj at Kachchh, in Special (ACB) Case No. 45 of 2006 whereby the original accused Nos. 1 and 2 were convicted for the offence under section 7 of the Prevention of Corruption Act 1988 (the Act for short) and sentenced them to undergo three years rigorous imprisonment and fine of Rs. 3,000/-, in default, to undergo three months rigorous imprisonment, for under Section 12 of the said Act, sentenced them to undergo three years rigorous imprisonment and fine of Rs. 3,000/-, in default, to undergo three months rigorous imprisonment and for under Section 13(1)(d) read with Section 13(2) of the said Act, sentenced them to undergo three years rigorous imprisonment and fine of Rs. 4,000/- in default, to undergo fourth months rigorous imprisonment. Both sentences to run concurrently. 3. The short facts giving rise to the present appeals are that one hotel of original complainant-Bhanubha alias Tapubha Vikramsinh is situated on public road between Ravapar and Mata-na-madh. When the accused persons who are police officials conducted raid in respect of liquor, the complainant was not present there. At the time of raid Jalubha and Nanjibha who were the persons of the complainant were arrested and the complainant was shown as absconding. Thereafter, the accused No. 1 came to the hotel of the complainant and told him that his name has been revealed in the raid and if he wish his name not to be disclosed in the raid, he would have to give money, otherwise he would be insulted in public and harassed also. The accused threatened the complainant to give them Rs. 20,000/- otherwise he would be booked behind the bar. Thereafter the said amount was reduced to Rs. 10,000/- and then Rs. 5,000/- was agreed to be paid to the accused as illegal gratification. The accused threatened the complainant to give them Rs. 20,000/- otherwise he would be booked behind the bar. Thereafter the said amount was reduced to Rs. 10,000/- and then Rs. 5,000/- was agreed to be paid to the accused as illegal gratification. As complainant was not willing to pay bribe amount, he filed a complaint before Anti Corruption Bureau, Bhuj. A trap was arranged and ultimately, the accused were caught red handed. 4. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against both the appellant-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 several witnesses and also produced several documentary evidences. 4.2 At the end of the trial, after recording the statements of the accused under section 313 of the CrPC and hearing the arguments on behalf of the prosecution and the defence, the learned trial Court delivered the judgment and order, as stated above. 5. Being aggrieved by the same, the appellants have preferred the aforesaid Criminal Appeals before this Court. 6. By way of preferring the present appeals, the appellants have mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such. 7. Mr. Tejas Barot, learned advocate for appellant-accused No. 1 has taken this Court through the entire judgment and record and argued that the prosecution has miserably failed to establish the main ingredients i.e. demand, acceptance and recovery of the alleged amount of bribery and he has further argued that there is no uniformity in the evidence of complainant as well as panch No. 1 regarding demand and acceptance. He has further argued that lot of contradictions and improvements were made by the complainant and panchas in their depositions during the trial. He has further argued that lot of contradictions and improvements were made by the complainant and panchas in their depositions during the trial. He has further argued that so far as the recovery is concerned, as per the complainant, recovery was carried out by the Police Inspector-Rajendrasinh Ghanshyamsinh Waghela whereas as per the version of panch, the same was carried out by the Panch No. 2, therefore, there appears discrepancies. He has further argued that so far as the place of recovery is concerned, as per the complainant, search was carried out at the spot which is an open place and on the other hand, as per the panchas, the accused was taken to the guest house where his search was carried out, therefore, there is no uniformity regarding recovery of the tainted currency notes and the same becomes doubtful. He has further argued that the complainant is in habit of making false complaint and he has previously filed such types of complaint against several Government Officials and all have been dismissed. He has further argued that this is a clear case wherein vital ingredients of demand and acceptance are missing and recovery of tainted currency notes is not believable. He has further argued that there is no evidence to prove the involvement of the present appellants-accused in the crime in question. He has further argued that in the series of decisions wherein the Hon'ble Supreme Court has clearly laid down that in absence of clear and cogent evidence of demand and acceptance, no conviction could be recorded as such. The learned trial Court has relied upon the provisions of the Prevention of Corruption Act, which is in the nature of raising presumption in case of recovery of tainted currency notes and raising such presumption and surmises is not in accordance with the law. He has further argued that, therefore, the prosecution has miserably failed to prove vital ingredients as regards to demand and acceptance. Lastly, he has requested this Court to allow the present appeal. 8. Mr. Jayesh Dave, learned advocate appearing for the appellant-original accused No. 2 has taken this Court through the entire judgment and record and argued that while accused No. 1 was on duty in Bhuj he detained a vehicle which belonged to Dy. Lastly, he has requested this Court to allow the present appeal. 8. Mr. Jayesh Dave, learned advocate appearing for the appellant-original accused No. 2 has taken this Court through the entire judgment and record and argued that while accused No. 1 was on duty in Bhuj he detained a vehicle which belonged to Dy. S.P. Shri Solanki in prohibition case and therefore, as a vindictive step, ACB officials managed a false trap by taking service of complainant and falsely implicated the accused in crime in question and in support of his argument, he has placed reliance upon statement of the accused and entry which was effected in the weekly diary on 26.5.2004, wherein the accused has clearly mentioned that Dy. S.P. Solanki threatened him that he would implicate the accused in false case. Ms. Dave, learned advocate for applicant-accused No. 2 has adopted the other arguments advanced by Mr. Barot, learned advocate. 9. On other-hand, Mr. Chintan Dave, learned APP has supported the judgment rendered by learned trial Court. He has argued 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 has further argued that the finding recorded by the learned trial Court is based upon concrete and clinching evidence and therefore, punishment inflicted upon the accused does not call for any interference. He has 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. He has further argued that seizure memo is not only signed by the Investigating Officer, but the signature of the accused has also been obtained and therefore, presumption raised by learned trial Court is in accordance with law and this Court may not interfere with the judgment and order of conviction, as such. 10. This Court has heard Mr. Tejas Barot, learned advocate for appellant-original accused No. 1, Mr. Jayesh Dave, learned advocate appearing for the appellant-original accused No. 2 and Mr. Chintan Dave, 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. Tejas Barot, learned advocate for appellant-original accused No. 1, Mr. Jayesh Dave, learned advocate appearing for the appellant-original accused No. 2 and Mr. Chintan Dave, 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, hotel of original complainant-Bhanubha alias Tapubha Vikramsinh is situated on public road between Ravapar and Mata-na-madh. When the accused persons conducted raid in respect of liquor, the complainant was not present there. At the time of raid Jalubha and Nanjibha who were the persons of the complainant were arrested and the complainant was shown as absconding. Thereafter, the accused No. 1 came to the hotel of the complainant and told him that his name has been revealed in the raid and if he wish his name not to be disclosed in the raid, he would have to give money, otherwise he would be insulted in public and harassed. The accused threatened the complainant to give Rs. 20,000/- otherwise he would be booked behind the bar. Thereafter the said amount was reduced to Rs. 10,000/- and then Rs. 5,000/- was agreed to be paid to the accused as illegal gratification. As complainant was not willing to pay bribe amount, he filed complaint before Anti Corruption Bureau, Bhuj. A trap was arranged and ultimately, the accused were caught red handed, thereby they have committed offence punishable under Sections 7, 12, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988. 13. 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. 14. 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. 14. 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. 15. 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. 16. In a recent enunciation by the Honourable Apex Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayraj (AIR 2014 SC (Supp) 1837) (supra) in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i) and (ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d)(i) and (ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 17. PW-1-complainant-Bhanubha alias Tapubha Vikramsinh Sodha has deposed that he went to ACB Office, Bhuj for lodging complaint on 11.07.2005. He has further deposed that he was running a hotel situated on public road between Ravapar and Mata-na-madh. He has further deposed that accused raided his hotel in his absence and seized liquor and also arrested two staff members of hotel and the accused showed him as an absconder. He has further deposed that on 8.7.2005 at about 5.00 hours, accused No. 1 came to his hotel with his red colour Maruti Car and apprised him that liquor was seized from his hotel and his two staff members were also arrested and a prohibition case was lodged against him and also threatened him that if he want to get of from incarceration, he would have to pay Rs. 20,000/- otherwise he would put behind the bar. If he won't come tomorrow with the said amount, the accused would handcuff him and make him parade in public. He has further deposed that he also threatened him to implicate in narcotic case. He has further deposed that he felt that the demanded amount is very excessive, therefore, he negotiated and the accused agreed to accept Rs. 5000/-. However, as he was not willing to pay Rs. 5,000/- as bribe to the accused, therefore, on 11.7.2005, he approached the ACB and filed a complaint against the accused. He has further deposed that he felt that the demanded amount is very excessive, therefore, he negotiated and the accused agreed to accept Rs. 5000/-. However, as he was not willing to pay Rs. 5,000/- as bribe to the accused, therefore, on 11.7.2005, he approached the ACB and filed a complaint against the accused. He has further deposed that the ACB officials appointed panchas in the trap prior to holding the raid and they gave detailed information as to how the raid was going to be conducted and as to how the phenolphthalein powder is to be applied. He has further deposed that the ACB Officials also arranged for the demanded money of Rs. 5,000/- in denomination of Rs. 500/-. He has further deposed that when he reached Dayapar Police Station, police constable-accused No. 2 was present there with several other officials. He has further deposed that he asked the police constable-accused No. 2 about accused No. 1 to which accused No. 2 told him that accused No. 1 has gone outside the office for some work. He has further deposed that thereafter, accused No. 2 told him to wait at the hotel and after about half an hour, accused No. 2 reached there and informed that he would be produced before Mandvi Court and also asked to arrange a vehicle. He has further deposed that when he tried to inquire from accused No. 2 as to whether he would be harassed and defamed to which accused No. 2 told him that if he would pay Rs. 5000/- then he can get of from the harassment. He has further deposed that thereafter accused No. 2 asked about bribe amount of Rs. 5000/- which was agreed earlier between accused No. 1 and the complainant to which the complainant replied in affirmative and complainant offered to pay the said amount at the hotel but accused No. 2 refused to take the same in the hotel. He has further deposed that thereafter the accused No. 2 told him to walk outside the hotel and when complainant along with accused and Panchas were walking for about 50 ft. away from the hotel, at that time, the complainant took out the aforesaid tainted currency notes from left pocket of his Kurta and gave it to accused No. 2. He has further deposed that thereafter the accused No. 2 told him to walk outside the hotel and when complainant along with accused and Panchas were walking for about 50 ft. away from the hotel, at that time, the complainant took out the aforesaid tainted currency notes from left pocket of his Kurta and gave it to accused No. 2. Thereafter, the complainant started walking towards police station and gave the pre-arranged signal to the other members of the raiding party and the ACB personnel came there and caught hold of the accused red handed and tainted currency notes were recovered by the Police Inspector-Shri Rajendrasinh Ghanshyamsinh Waghela from the pocket of the accused. Thereafter, detailed panchnama was carried out in the presence of accused and the said tainted currency notes were also seized. 18. In his cross-examination, he has admitted that several cases under the provision of Prohibition Act are pending against him. He has also admitted that he lodged several corruption cases against the Government Officials. He has also admitted that he was manufacturing liquor for past three years and he was also supplying it in the market. He has further admitted that he knew Police Inspector-Shri Rajendrasinh Ghanshyamsinh Waghela and both are having good relation. He has also admitted that on 24.6.2005, a case under the provision of Prohibition Act was filed by the accused No. 1 against him where, he was declared absconder. He has also admitted that test of phenolphthalein powder was carried out in absence of himself as well as panchas. He has further admitted that his signature was taken on the complaint on 11th July, 2005 in the evening but at that time signatures of the panchas were not jotted down there. He has further admitted that he was directed to reach the Police Station on 12th July, 2005 at 5:00 a.m. along with panchas but he actually reached there at about 5:15 a.m. and after half an hour, they proceeded towards Dayapar Police Station. He has further admitted that after search and seizure, test of phenolphthalein powder was not carried out by the police. 19. PW-4-Rashid Mohammad Malek has deposed that he was working as Work Assistant in Gujarat Water Supply and Sewerage Board, Bhuj and he was requisitioned to act as panch in the trap prior to holding the raid. He has further admitted that after search and seizure, test of phenolphthalein powder was not carried out by the police. 19. PW-4-Rashid Mohammad Malek has deposed that he was working as Work Assistant in Gujarat Water Supply and Sewerage Board, Bhuj and he was requisitioned to act as panch in the trap prior to holding the raid. He has further deposed that he, as well as complainant and other panchas were given detailed information as to how the raid was going to be conducted and as to how the phenolphthalein powder is to be applied. He has further deposed that he was called by Police Inspector, ACB-Mr. Rajendrasinh Ghanshyamsinh Waghela on 12.7.2005 at about 3.30 hours and he read the complaint of the complainant and thereafter Mr. Rajendrasinh Ghanshyamsinh Waghela introduced him with the complainant. He has further deposed that he was instructed to accompany complainant and to hear as to what conversation took place between them and rest of the members were directed to see the incident outside the place. He has further deposed that when he reached Dayapar Police Station, police constable-accused No. 2 was present there with several other officials. He has further deposed that when the complainant asked the police constable-accused No. 2 about accused No. 1 to which accused No. 2 told him that accused No. 1 has gone outside the office for some work. He has further deposed that thereafter, accused No. 2 told the complainant to wait at the hotel and after about half an hour, accused No. 2 reached there and informed that the complainant would be produced before Mandvi Court and also asked to arrange a vehicle. He has further deposed that when the complainant tried to inquire from the accused No. 2 as to whether he would be harassed and defamed to which accused No. 2 told him that if he would pay Rs. 5000/- as demanded by the accused No. 1 then he can get of from the harassment. He has further deposed that thereafter accused No. 2 asked about bribe amount of Rs. 5000/- which was agreed earlier between accused No. 1 and the complainant to which, the complainant replied in affirmative and complainant offered to pay the said amount at the hotel but accused No. 2 refused to take the same in the hotel. He has further deposed that thereafter accused No. 2 asked about bribe amount of Rs. 5000/- which was agreed earlier between accused No. 1 and the complainant to which, the complainant replied in affirmative and complainant offered to pay the said amount at the hotel but accused No. 2 refused to take the same in the hotel. He has further deposed that thereafter the accused No. 2 told him to walk outside the hotel and when complainant, accused and Panchas reached near Shradhdha Communication Shop, accused No. 2 demanded the said amount from the complainant. He has further deposed that the complainant took out the said amount from his pocket and gave it to accused No. 2 and accused No. 2 put the same in left pocket of his trouser. He has further deposed that the complainant gave the pre-arranged signal to the other members of the raiding party and the ACB personnel came there and caught hold of the accused red handed and as further procedures could not be conducted on road, accused No. 2 was taken to Government Guest House where Police Inspector-Mr. Rajendrasinh Ghanshyamsinh Waghela told Panch No. 2 to take out the said amount from the pocket of accused No. 2 and upon search of accused No. 2, ten tainted currency notes in denomination of Rs. 500/- i.e. total Rs. 5000/- was recovered from the possession of accused No. 2 and in the test of phenolphthalein powder, the powder was found on the trousers of accused No. 2, therefore, his trouser was seized and detailed panchnama was carried out in the presence of accused and the said tainted currency notes and other necessary articles were also seized. 20. In his cross-examination, he had admitted that he was appointed as panch by the ACB and on 11.7.2005, he reported at Office of ACB, Bhuj but the complainant was not present there and till then, the signature of the complainant was not taken out in the complaint, therefore, on that day, the raid was postponed. He has further admitted that on 12.7.2005, at 3:00 a.m. he again reported at ACB Office but at that time the complainant was again absent and the complainant reached there at 5:00 a.m. and when the complainant reached there, the complainant was unaware about the trap. 21. PW-5-Rajendrasinh Ghanshyamsinh Waghela has deposed that he was serving as Police Inspector in ACB, Bhuj. 21. PW-5-Rajendrasinh Ghanshyamsinh Waghela has deposed that he was serving as Police Inspector in ACB, Bhuj. He has further deposed that on 11.7.2005, the complainant told him regarding demand of illegal gratification on behalf of the accused persons and further he recorded the complaint on 12.7.2005 and thereafter, he arranged for the panchas and trap. He has further deposed that on 12th July, 2005 at abut 5:50 a.m. they started journey for the purpose to carry out the raid from ACB Office Bhuj and reached at the place of raid i.e. Dayapar village at 8:30 a.m. and conducted the raid successfully. Thereafter search and seizure was carried out and in the test of phenolphthalein powder, the powder was found on the trouser of the accused No. 2. In his cross-examination, he has admitted that he could not view regarding handing over the tainted currency notes to accused No. 2 by the complainant. He has also admitted that search and seizure was carried out inside the room of the guest house and not at open place. He has further admitted that he was unaware about the fact that the complainant was having business of manufacturing and selling liquor. However, he denied about the fact that the panchas were called in ACB Office, Bhuj on 12.7.2005 at 3:00 a.m. whereas the complainant came there at 5:00 a.m. 22. The depositions of rest of the witnesses are not trustworthy and therefore the same are not believed and is not reproduced here. 23. 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. 24. In corruption cases, as laid down in 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, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Recently, the Honourable Apex Court has made it clear that the proof of demand of illegal gratification, is the gravamen of the offence under Sections 7 and 13(1)(d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. Precisely, failure of the prosecution to prove demand for illegal gratification would be fatal and mere recovery of amount from the person of the accused of the offence under sections 7 or 13 of the Act would not entail his conviction thereunder. In view of the aforesaid principle laid down by the Honourable Apex Court, so far as the proof of demand is concerned, upon examination of the evidence on record as regards to the demand in the present case, as per the charge framed against the accused and as per the prosecution case, the accused No. 2 raised demand by making gesture by hand to deliver Rs. 5000/- and hence, the complainant handed over Rs. 5000/- to accused No. 2 and that is the precise the case of the prosecution. So far as the demand is concerned, the same is revealing from the complaint which has been lodged by the complainant and the same is also revealing from the panchnama of trap arranged as well as from the police statement of complainant and panch who have narrated in the recital of the panchnama that the demand was raised by way of making gesture by raising hand and to deliver Rs. 5000/- as illegal gratification to the accused. However, during the course of leading evidence before learned trial Court, the complainant as well as panch who were witnesses in whose presence, the transaction as regards to demand and acceptance of illegal gratification took place have tried to develop the case by way of making improvements in their examination-in-chief as if accused No. 2 demanded by making oral request to deliver Rs. 5000/- to accused No. 1 as illegal gratification. However, in their cross examination, both the witnesses have admitted that there was no conversation between complainant and accused No. 2 and, therefore, entire factum as regards to demand itself falls on the ground. 5000/- to accused No. 1 as illegal gratification. However, in their cross examination, both the witnesses have admitted that there was no conversation between complainant and accused No. 2 and, therefore, entire factum as regards to demand itself falls on the ground. Under the circumstances, even though tainted currency notes of Rs. 5000/- which was indisputably not seized or recovered from the accused No. 1, but the same has been recovered from the possession of the accused No. 2 may be believed to be true, then also mere recovery of tainted currency notes which was used in trap would not prove the vital ingredients as regards to demand and acceptance. 25. This Court has minutely gone through the evidence of the aforesaid two crucial witnesses and on examination of their evidence, it appears that they have tried to improve upon their version as if accused No. 2 demanded the amount of Rs. 5000/- by making oral request and thereafter in the cross examination, both the witnesses have admitted that there was no conversation between the complainant and accused No. 2. In this view of the matter, very factum as to demand and acceptance is not proved. In view of the aforesaid nature of evidence, though learned trial Court has recorded the finding that when tainted currency notes were found and test powder was found to be positive in the evidence as well as in muddamal trouser which was worn by the accused No. 2 and therefore, invoking the provisions of Section 20 of the Act, the offence as regards to demand and acceptance is held to be proved is not in consonance with the law laid down by the Honourable Apex Court in series of decisions. The factum of demand can only be established in the oral evidence of demander as well as giver of illegal gratification and in order to corroborate the said transaction, the evidence of panch is also essential as corroborative evidence but the evidence of demander as well as giver is direct evidence. If the said evidence is not available, in that case, even though recovery of tainted currency notes which came to be recovered from the accused No. 2, the case of the prosecution would fall to the ground. 26. If the said evidence is not available, in that case, even though recovery of tainted currency notes which came to be recovered from the accused No. 2, the case of the prosecution would fall to the ground. 26. On overall evaluation of the evidences on record, so far as establishment of pre-demand is concerned, as per the version of complainant, initially the accused raised demand of Rs. 20,000/-, which was negotiated from Rs. 20,000/- to Rs. 10,000/- and the same was further negotiated and finalized at Rs. 5,000/-. However, during the trial, the complainant made lot of improvements and contradictions and there appears no uniformity regarding pre-demand. Though in the complaint it is clearly mentioned by the complainant that the accused demanded Rs. 20,000/- and the same came to be negotiated to Rs. 5,000/- but there was not mention about the figure of Rs. 10,000/-. So far as the complaint is concerned, the complainant has deposed that on 11th July, 2005 at 5:00 p.m. when the complaint was lodged, neither the panchas nor any other persons were present there. However, as per the deposition of panchas and Investigation Officer, the complaint has been recorded in the presence of panchas. The complainant has also deposed that neither the complaint was read over by the panchas nor sign of the panchas were jotted down in the complaint. In that view of the matter, there appears no uniformity in regard to the lodging of the complaint. 27. So far as the recovery of the tainted currency notes are concerned, as per the evidence of the complainant, the complainant has clearly stated that Police Inspector-Rajendrasinh Ghanshyamsinh Waghela himself has carried out the personal search of accused No. 2 and in search, tainted currency notes were found by Police Inspector-Mr. Rajendrasinh Ghanshyamsinh Waghela and Mr. Rajendrasinh Ghanshyamsinh Waghela also deposed the said fact in his evidence, whereas, as per the version of panch No. 1, the recovery was carried out by panch No. 2. 28. So far as the place of recovery of the tainted currency notes are concerned, as per the complainant, the recovery was carried out outside the hotel i.e. open public place whereas, as per version of panchas and Police Inspector-Mr.Rajendrasinh Ghanshyamsinh Waghela, the recovery was carried out in Room No. 2 of the guest house. 28. So far as the place of recovery of the tainted currency notes are concerned, as per the complainant, the recovery was carried out outside the hotel i.e. open public place whereas, as per version of panchas and Police Inspector-Mr.Rajendrasinh Ghanshyamsinh Waghela, the recovery was carried out in Room No. 2 of the guest house. Consequently therefore, there appears no uniformity in the evidence of complainant, panchas and Investigation Officer regarding exact place where the recovery was carried out. In that view of the matter, the entire procedure of recovery becomes doubtful. 29. On the evaluation of the evidence on record, more particularly Weekly Diary dated 26th May, 2004 at exhibit 59-C page No. 206, it clearly indicates that while the accused were on patrolling at that time, they seized a vehicle in prohibition case which belonged to Mr. Solanki the then Dy. S.P. Bhuj, due to which, Mr. Solanki-Dy. S.P. threatened the accused that if the said vehicle is not released, then he would implicate them in false corruption case. As submitted by the learned advocate for the appellant, Dy. S.P. Mr. Solanki and Police Inspector Mr. Rajendrasinh Ghanshyamsinh Waghela and the complainant belonged to same caste and due to which the present concocted story was fabricated by them in lieu of vindictiveness and the said fact was admitted by the complainant that several false corruption cases were filed by him against the Government Officials. It is also admitted by the complainant that he involved in manufacturing and selling of liquor. In that view of the matter, the credibility of the complainant becomes doubtful. 30. In the backdrop of the aforesaid factual position and on overall analysis of the evidence on record, the prosecution has to prove three main vital ingredients of illegal gratification, namely demand, acceptance and recovery of tainted currency notes. So far as the demand and acceptance of the illegal gratification is concerned, there is lot of contradiction in the deposition of complainant, panchas and Investigation Officer and during the trial, they could not prove the exact place of recovery, therefore, the recovery of tainted currency notes becomes doubtful. In that view of the matter, nothing reveals from the evidences of important witnesses i.e. complainant, panchas and Investigation Officer. 31. In that view of the matter, nothing reveals from the evidences of important witnesses i.e. complainant, panchas and Investigation Officer. 31. In view of the aforesaid nature of evidence, when demand and acceptance is not proved which are vital ingredients so far as establishing the guilt of accepting illegal gratification is concerned and in consequence whereof, recovery of tainted currency notes which was found in the trap from the possession of the appellant-accused becomes meaningless. In this view of the matter, finding recorded by learned trial Court is not in consonance with the evidence available on record. Therefore, as stated above, in absence of any specific and clinching evidence to prove all such acts by the appellant accused, conviction recorded by learned trial Judge is not sustainable. 32. 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. 33. One another disturbing feature comes out from the Record and Proceedings of the case is regarding the fact that the Police Inspector has assumed all roles right from the stage of recording the complaint, arranging trap as well as members of raiding party, carrying out investigation till filing of the charge-sheet. This course of action goes against the basic tenets of criminal jurisprudence and fair investigation. The credibility of the case of the prosecution becomes suspicious on this count only. In the facts of the present case, the status of the 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 Honourable Apex Court in the case of Bhagwan Singh vs. State of Rajasthan, AIR 1976 SC 985 , followed by this Court in the case of Kanubhai Kantibhai Patel vs. State of Gujarat, 1998 (1) GLH 924 as well as in the case of Gopal Lal Ghisulal Chhipa (supra). The said view is fortified by the decision of the Honourable Apex Court in the case of Bhagwan Singh vs. State of Rajasthan, AIR 1976 SC 985 , followed by this Court in the case of Kanubhai Kantibhai Patel vs. State of Gujarat, 1998 (1) GLH 924 as well as in the case of Gopal Lal Ghisulal Chhipa (supra). 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. 34. In view of the above discussion, the following final order is passed: (i) Criminal Appeal No. 1622 of 2009 preferred by the appellant-Rajeshkumar Ramkumar Bansal-original accused No. 1; (ii) Criminal Appeal No. 1697 of 2009 preferred by the appellant-Duryodhansinh Daultasinh Yadav-original accused No. 2 are allowed. The impugned judgment and order dated 29.08.2009 passed by the learned Special Judge and Additional Sessions Judge, Bhuj at Kachchh, in Special (ACB) Case No. 45 of 2006 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.