JUDGMENT : R.P. Dholaria, J. 1. The appellant has preferred the present appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 10.3.2004 rendered by learned Special Judge (ACB), Fast Track Court No. 1, Patan in Special (ACB) Case No. 12 of 2002 (Old Special (ACB) Case No. 7 of 1999). 2. The short facts giving rise to the present appeal are that on 22.4.1999 at about 11.30 in the night, the complainant's brother approached the appellant for taking treatment as he sustained injury in an incident of assault. It is alleged that the concerned Police Station has given a yadi addressed to the Medical Officer, Vagdod, but as the said Medical Officer was on leave, the injured persons were directed to approach the appellant at Patan Government Hospital and after taking the treatment, both the injured persons were discharged. It is alleged that on 23.4.1999, the complainant visited Patan Primary Health Center where the appellant was not available and therefore he went to the house of the appellant where the complainant asked for obtaining injury certificate of his brother and other injured persons. It is alleged that therefore the appellant demanded Rs. 1000/- for giving the same and ultimately the appellant told the complainant to pay Rs. 500/- for obtaining injury certificate, out of which Rs. 200/- was given by the complainant to the appellant and rest of Rs. 300/- was to be given on the next day. As the complainant was not willing to pay the said amount of bribe, he approached the ACB office and lodged the complaint. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the appellant accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried. 3.1 In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences. 3.2 At the end of the trial, after recording the statement of the accused under section 313 of the Code of Criminal Procedure 1973 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 appellant has preferred the aforesaid Criminal Appeal before this Court. 5. 4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court. 5. By way of preferring the present appeal, the appellant has mainly contended that 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. Umesh Trivedi, learned advocate for the appellant has taken this Court through the evidence of material witnesses as well as Panch No. 1 who accompanied at the time of carrying out raid and argued that the prosecution miserably failed to establish crucial elements i.e. demand, acceptance and recovery. He submitted that on going through the evidence of the complainant himself, in the cross examination, he himself has admitted that the appellant accused has not demanded money either inside the hotel or outside the room of the hotel, but he himself voluntarily thrusted the tainted currency notes into the handkerchief of the appellant and hence, vital ingredients cannot be said to be proved in accordance with law. He submitted that even in the cross examination, the complainant himself has admitted that predemand was raised from his brother and not from him and though the said fact was stated to the police while recording the complaint, the police directed him to state the same as if demand was raised from him and therefore, he stated the said fact in the complaint. He submitted that the complainant clearly admitted that the accused raised predemand from his brother and his brother paid the amount on the previous day, but he met the appellant on the day of trap and voluntarily thrusted money on the appellant and therefore, no ingredients much less the vital ingredients i.e. demand, acceptance and recovery are established in accordance with law. He further submitted that so far as the evidence of Panch No. 1 is concerned, he has clearly admitted in his cross examination that as he was government servant, he is supposed to depose as per his previous statement and therefore he requisitioned his statement before about ten days from the ACB office and he read it several times and thereafter he gave testimony before the learned trial Court. He submitted that as per the deposition of the panch, the complaint was signed by him on 22.4.1999, whereas the complainant stated that the complaint was lodged on 23.4.1999 and hence there appears material contradictions in the depositions of the complainant as well as Panch No. 1 as regards to lodging of the complaint. He submitted that as per the testimony of Panch No. 1, the complaint was recorded on 24.4.1999 in the presence of both the panchas and that prior to reducing the complaint in writing, orally the complainant stated the facts and thereafter it was reduced in writing in his presence and therefore the entire complaint has become doubtful. He submitted that as per the say of the complainant, there was no predemand from him, but predemand was raised from his brother and his brother did pay the amount of Rs. 200/- against predemand but he has not been examined and even not cited as witness. He, therefore, submitted that predemand as well as demand itself are not getting proved. He submitted that even the presence of Panch No. 1 at the time of handing over the amount of bribe also becomes doubtful in view of the clear admission of the complainant that while thrusted the money into the handkerchief of the accused and thereafter he raised alarm, at that time, panch No. 1 arrived from the opposite direction towards them rules out the presence of panch No. 1 at the time of trap. Mr. Trivedi further argued that in view of catena of decisions rendered by the Honourable Apex Court, by now, the law on the issue raised in this appeal has become very clear wherein the prosecution has to establish the case beyond reasonable doubt in clear and conjoint evidence as regards to demand and acceptance thereof and unless that is established, no conviction can be recorded in such cases. Lastly, Mr. Trivedi requested this Court to allow the present appeal. 7. On the other-hand, Mr. Lastly, Mr. Trivedi requested this Court to allow the present appeal. 7. On the other-hand, Mr. K.P. Rawal, learned APP has supported the judgment rendered by learned trial Court. He has argued that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court should not disturb the finding recorded by learned trial Court, as such. 8. This Court has heard Mr. Umesh Trivedi, learned advocate for the appellant and Mr. Rawal, learned APP for the respondent State. 9. This Court has minutely gone through the impugned judgment rendered by learned trial Court as well as the evidence on record in the nature of paper book. As per the prosecution version, as the brother of the complainant got injured in assault, he approached the appellant accused and was required to obtain injury certificate and hence, the complainant approached the accused on 23.4.1999, at that time, the accused demanded Rs. 1000/- which came to be scaled down to Rs. 500/-, out of which, Rs. 200/- was paid on the same day. Thereafter, the accused directed the complainant to pay Rs. 300/- on the following day i.e. on 24.4.1999. As the complainant was not willing to pay the bribe amount, he lodged the complaint before the ACB. Ultimately, the trap was laid and the accused was caught red handed along with tainted currency notes and thereby the accused committed the offence, as alleged. 10. PW 1 - Dineshkumar Kantilal Darji has been examined at Exh. 14. The witness has deposed that in an assault, his brother Vipol got injured and he was taken to the Government Hospital, Patan on 22.4.1999 where he was treated by the accused and thereafter on 23.4.1999, when he met the accused for obtaining injury certificate, at that time, the accused demanded Rs. 1000/- which came to be scaled down to Rs. 500/- after negotiation. The witness has deposed that he has paid Rs. 200/- to the accused and thereafter he was directed to pay remaining amount of Rs. 300/- on the next day as well as also directed to collect the certificate on the next day. 1000/- which came to be scaled down to Rs. 500/- after negotiation. The witness has deposed that he has paid Rs. 200/- to the accused and thereafter he was directed to pay remaining amount of Rs. 300/- on the next day as well as also directed to collect the certificate on the next day. The witness has deposed that he lodged the complaint and trap was arranged on 24.4.1999 and at the time of trap, he reached to the hospital along with panch No. 1 in OPD Room No. 9, at that time, the accused was present there and the witness asked the accused, whether the certificate is ready or not, to which, the accused told him to come outside the room, at that time, the accused was holding blue colour handkerchief in his hand and that the witness handed over the tainted currency notes to the accused which were accepted and placed in the pocket by the accused and thereafter the witness raised alarm and hence, other members of the raiding party came there. The witness has deposed that thereafter search over the person of the accused was carried out through panch No. 2, the tainted currency notes were recovered from handkerchief of the accused and that test of ultra violate lamp was found to be positive so far as handkerchief and pocket of the accused are concerned. In the cross examination, the witness has admitted that while his brother was under the treatment, there was no demand as regards to illegal gratification and he was not called for collecting the certificate, but on 23.4.1999 when his brother visited the Government hospital, at that time, the accused told him that certificate would be sent directly to the police and the certificate was not ready. The witness has admitted that thereafter his brother told him that the accused has demanded money for issuance of certificate and he had handed over Rs. 200/- to the accused. The witness has also admitted that though demand was raised by the accused before his brother and the said fact has also been told to the police, but at the time of recording the complaint, the police stated him to state that demand was raised from the witness. The witness has also admitted that he did not hand over Rs. The witness has also admitted that though demand was raised by the accused before his brother and the said fact has also been told to the police, but at the time of recording the complaint, the police stated him to state that demand was raised from the witness. The witness has also admitted that he did not hand over Rs. 200/- to the accused, but his brother has handed over and the said fact has also been stated before the police. The witness has also admitted that on the day of trap i.e. 24.4.1999, he alone went to the hospital and his brother was not accompanied with him. The witness has admitted that when he reached to the hospital, he called out the accused from the room and thereafter he placed Rs. 300/- into handkerchief of the accused which was directed by the Police Inspector to handover to him and thereafter he raised prearranged signal and hence panch No. 1 and other members of the raiding party arrived at the place. In paragraph 13 of the cross examination, some material contradictions and improvements have also been brought on record which have been even admitted by the said witness. 11. PW 2 - Haribhai Ramjibhai Chaudhary has been examined at Exh. 12. The witness has deposed that he was serving as Junior Clerk in RTO office, Mehsana and he was directed to report to the ACB office on 24.4.1999. The witness has deposed that when he was accompanied by panch No. 1, at that time, the complainant was there and he was introduced with the complainant. Thereafter, the complainant orally stated his complaint and thereafter it was recorded by the police. The witness has deposed that thereafter the complainant produced Rs. 300/- which came to be smeared with anthracene powder and the test of anthracene powder was carried out. The witness has deposed that at the time of trap, he was accompanied with the complainant in room No. 9 wherein along with the accused, two other doctors were also present there. The witness has deposed that thereafter there was conversation between the complainant and the accused and even the complainant tried to scale down the amount from Rs. 300/- to Rs. 200/- and thereafter, the complainant handed over Rs. 300/- to the accused and in turn, the accused placed the said amount in the handkerchief and then placed into the pocket. The witness has deposed that thereafter there was conversation between the complainant and the accused and even the complainant tried to scale down the amount from Rs. 300/- to Rs. 200/- and thereafter, the complainant handed over Rs. 300/- to the accused and in turn, the accused placed the said amount in the handkerchief and then placed into the pocket. In the cross examination, the witness has admitted that the complaint was recorded in his presence and the complainant also signed the said complaint in his presence. The witness has admitted that the accused did not demand any amount for issuance of certificate in room No. 9 and even after coming out from room No. 9, the accused did not demand any amount from the complainant for issuance of the certificate. The witness has admitted that he is a government servant and he is required to testify whatever stated before the police by him otherwise he would have to face the departmental proceedings and hence, he obtained the statement for about 10 to 12 days prior to recording his evidence from the ACB office, he read it several times and thereafter he gave deposition. 12. The police officials as well as sanctioning authority have also been examination and in their deposition, they have stated as regards to procedure of trap and sanction respectively. 13. At this stage, it would be fruitful to make reference to the decision of the Honourable Apex Court in A. Subair v. 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. 14. 14. In State of Kerala and another v. C.P. Rao, (2011) 6 SCC 450 : (AIR 2012 SC (Supp) 393), the Honourable 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. 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. 16. 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. 17. 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. 17. In the backdrop of the aforesaid factual as well as legal position and on overall analysis of the evidence of the complainant on record, it appears that clear admission made by the complainant during the course of cross examination aptly indicates as his brother Vipul got injured in the assault and he asked for the certificate of treatment, at that time, the accused demanded the amount of illegal gratification from his brother and his brother paid Rs. 200/- and there was no demand from the complainant. Similarly, the complainant also admitted that while he visited the accused in room No. 9 of Civil Hospital, Patan, the accused did not demand any amount, but he placed the tainted currency notes into the blue colour handkerchief of the accused. 18. So far as the evidence of Panch No. 1 is concerned, had fully supported the case of the prosecution in examination-in-chief, but in the cross examination, he has clearly and categorically admitted that neither the accused demanded any amount of illegal gratification in room No. 9 of the Civil Hospital, Patan nor outside the said room of the civil hospital. Therefore, in view of the deposition of the complainant, while he placed the tainted currency notes into the handkerchief of the appellant accused and gave prearranged signal, thereafter, panch No. 1 was arrived. 19. Under the circumstances, in view of the clear admission of the complainant as well as Panch No. 1, the prosecution has miserably failed to prove the vital ingredients as regards to demand and acceptance and resultantly, recovery is meaningless. 20. So far as predemand is concerned, though predemand is alleged to have been made from the brother of the complainant and he in fact, paid Rs. 200/- to the accused as stated by the complainant, but he has not been examined or cited as a witness. In this view of the matter, in absence of evidence of predemand and demand at the time of trap by the accused from the complainant, the accused cannot be linked with the crime in question. 200/- to the accused as stated by the complainant, but he has not been examined or cited as a witness. In this view of the matter, in absence of evidence of predemand and demand at the time of trap by the accused from the complainant, the accused cannot be linked with the crime in question. Therefore, as stated above, in absence of specific and clinching evidence to prove all such acts by the accused, conviction recorded by learned trial Judge is not sustainable. 21. For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 10.3.2004 rendered by learned Special Judge (ACB), Fast Track Court No. 1, Patan in Special (ACB) Case No. 12 of 2002 (Old Special (ACB) Case No. 7 of 1999) is quashed and set aside. The appellant is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. Fine, if any, paid by the appellant be refunded to him. R & P be sent back to the trial Court, forthwith. Appeal Allowed.