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 14.9.2004 rendered by learned Special Judge, (ACB, Fast Track Court No. 2), Ahmedabad (Rural), Ahmedabad in Special Case (ACB) No. 4 of 1997. 2. The short facts giving rise to the present appeal are that the complainant is holding the agricultural land as well as two jeeps and both the vehicles are being plied on rent through the driver and when there vehicles are not on rent, the same are being plied from Dhandhuka to Barwala for passengers. It is alleged that since both the vehicles are being plied frequently for passengers, the police personnel of Barwala Police Station demanded Rs. 1500/- towards illegal gratification. As the complainant did not want to give the said amount of illegal gratification, he lodged the complaint before the ACB office. 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. 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. Ms. Bhavini Jani, learned advocate with Mr. 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. Ms. Bhavini Jani, learned advocate with Mr. Rohan Raval, learned advocate for the appellant has taken this Court through the evidence of the witnesses as well as impugned order and argued that since the complainant has disowned the complaint itself except his signature over the plain paper and that he has not stated anything in his complaint and went to the extent that accused No. 2 was not PSI at the relevant time at the said place and none of the accused has ever demanded any illegal gratification and therefore, in absence of evidence of the complainant, the prosecution has miserably failed to establish vital ingredients as regards to demand, acceptance and recovery. She has submitted that though panch No. 1 who was accompanied with the complainant has fully supported the case of the prosecution, but his evidence is secondary and in view of the clear ratio laid down by the Honourable Apex Court in the case of Selvaraj Vs. State of Karnataka, reported in (2015) 10 SCC 230 as well as in B. Jayaraj Vs. State of A.P., reported in AIR 2014 SC (Supp) 1837, in absence of the evidence of the complainant, though corroborative evidence of panch may be available on record, no conviction can be sustained. Lastly, Ms. Jani 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 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. He submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court may dismiss the appeal filed by the appellant - original accused No. 1. He submitted that learned trial Court has recorded ample reasons based on the evidence on record for convicting the appellant accused and ingredients as regards to demand, acceptance and recovery are proved in accordance with law and, therefore, this Court may dismiss the appeal filed by the appellant - original accused No. 1. He further submitted that apart from the evidence of the complainant as well as the complaint, the evidence of panch No. 1 has sufficiently established vital ingredients, i.e. demand, acceptance and recovery and the evidence of Panch No. 1 is satisfactorily consistent and clearly involving the present appellant accused and, therefore, conviction recorded by learned trial Court may not be interfered with. He submitted that so far as recovery of tainted currency notes is concerned, the same has been recovered and test of ultra violate lamp was also found to be positive so far as the person of the accused is concerned and that the numbers of tainted currency notes were tallied with the numbers of currency notes mentioned in the preliminary panchnama. He, therefore, submitted that this Court may not interfere with the impugned judgment and order of conviction in view of the cogent and clinching evidence on record. 8. This Court has heard Ms. Bhavini Jani, learned advocate with Mr. Rohan Raval, 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 stated above, the complainant is holding the agricultural land as well as two jeeps and both the vehicles are being plied on rent through the diver and when there vehicles are not on rent, the same are being plied from Dhandhuka to Barwala for passengers. It is the case of the prosecution that since both the vehicles are being plied frequently for passengers, the police personnel of Barwala Police Station demanded Rs. 1500/- towards illegal gratification. As the complainant did not want to give the said amount of illegal gratification, he lodged the complaint before the ACB office and thereby the accused has committed the offence, as alleged. 10. PW 4 - Bhikhubha Shivubha Jhala has been examined at Exh. 21. 1500/- towards illegal gratification. As the complainant did not want to give the said amount of illegal gratification, he lodged the complaint before the ACB office and thereby the accused has committed the offence, as alleged. 10. PW 4 - Bhikhubha Shivubha Jhala has been examined at Exh. 21. The witness who is the complainant has deposed that he is resident of Barwala and he knew the accused as they were serving as police officials in the area. The witness has deposed that he was having two jeeps for carrying on passengers and administration of jeeps is being carried out by his cousin Bhanubha and Vikram Ajipsinh Vaghela. The witness has deposed that at the time of incident, accused No. 2 was not PSI but one Mr. Raval was there as PSI. The witness has deposed that he has never paid any amount towards installment for plying jeep and that he has no conversation as regards to payment of illegal gratification with accused No. 2. The witness has deposed that he has never lodged any complaint for demanding illegal gratification of Rs. 1500/- and that he has never gone to the ACB office, but his signature was taken over on the blank paper by PSI Mr. Raval and he did not know as to what was written on the said blank paper thereafter. The witness has deposed that he has not presented any amount nor any sort of test of anthracene powder was carried out in his presence nor any search or seizure by any police official was carried out in his presence. The witness has deposed that he has not handed over any amount of illegal gratification to the appellant accused and that he has never lodged any complaint for demanding illegal gratification against any body. 11. PW 1 - Kanubhai Jaksibhai Thakor, who is Panch No. 1 has been examined at Exh. 10. The witness has deposed that he was requisitioned as panch No. 1 and at the relevant time, he was serving as Senior Clerk in the office of the Chief Officer, Bavla Nagarpalika. The witness has deposed that he was called by the ACB office and he was appraised as regards to complaint made by one Bhikhubha Shivubha Jhala and thereafter he was also made to understand as to how the trap as well as test of anthracene powder are to be carried out. The witness has deposed that he was called by the ACB office and he was appraised as regards to complaint made by one Bhikhubha Shivubha Jhala and thereafter he was also made to understand as to how the trap as well as test of anthracene powder are to be carried out. The witness has deposed that actually at the time of trap, when he proceeded along with the complainant to the Police Station, Barwala, at that time, the appellant accused was found there and he entered in the police station and asked about the PSI, to which, the appellant accused stated that PSI will be coming and thereafter the complainant told the appellant accused that he wants to talk as regards to his jeep, at that time, the appellant accused told that "whatever you want to give, give me, I will handover to PSI". The witness has deposed that thereafter the complainant took out Rs. 1500/- from his pocket and handed over to the appellant accused, the appellant accused accepted the same and thereafter the complainant raised alarm and hence other members of the raiding party arrived there. The witness has deposed that tainted currency notes were found from the table. 12. 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. 13. 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. 14. 14. 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. 15. 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, irrespective of the fact that the raid was carried out and recovery was made, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 16. If there is no such evidence on record, in that event, irrespective of the fact that the raid was carried out and recovery was made, the conviction cannot be sustained as the onus lies on the prosecution to prove its case beyond reasonable doubt. 16. In the backdrop of the aforesaid factual position and on overall analysis of the evidence on record, it appears that complainant - PW 4 - Bhikhubha Shivubha Jhala has not supported the case of the prosecution, he himself has disowned his own complaint, he deposed that his signature was obtained over the blank paper by the subsequent PSI and he did not know as to what was written on it coupled with the fact that he himself has admitted that the present appellant accused as well as other police officials have never demanded any amount of installment or never demanded any amount towards illegal gratification and he himself has not made any complaint before the ACB as regards to demand of illegal gratification and in this view of the matter though evidence of PW 1 - Panch No. 1 who accompanied the complainant at the time of trap is available on record and on evaluation of the evidence of Panch No. 1, nothing specific comes out from conversation from the mouth of the accused as regards to specific demand. In absence thereof, even though the evidence of Panch No. 1 is available on record as submitted by learned APP, but when primary evidence of the complainant is missing and he disowned his own complaint and even he disowned his complaint to the extent of lodging the complaint, this Court is of the considered opinion that conviction against the present appellant cannot sustain any further. It can further be noticed that the complainant in his deposition has stated that police officials, Barwala have never demanded any amount of illegal gratification, he never made any complaint before the ACB office and never visited the ACB Police Station and on being verifying the original Record and Proceedings, it appears that the complaint is at Exh. 22 which appears to be recorded on plain paper and the signature of the complainant was also seen to be taken on blank paper. Under the circumstances, the prosecution has miserably failed to establish the vital ingredients, i.e. demand, acceptance and recovery. 22 which appears to be recorded on plain paper and the signature of the complainant was also seen to be taken on blank paper. Under the circumstances, the prosecution has miserably failed to establish the vital ingredients, i.e. demand, acceptance and recovery. In absence of primary evidence, secondary evidence i.e. corroborative evidence becomes meaningless having no evidentiary value. 17. It can further be noticed that in the State of Gujarat, panchas are always requisitioned from the Government offices who are government employees in order to avoid turning them hostile. As the services of the government officials are requisitioned by the ACB official during the course of trap, they are bound to depose as per their previous statement, contents of panchnama and usually prior to recording the evidence, it is consistent practice of the ACB office to show and to appraise the government witness his previous statement prior to making the deposition and therefore the government employees never turn hostile. 18. 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 from the table has become meaningless. In this view of the matter, finding recorded by learned trial Court is not in consonance with the evidence available on record. It is by now well settled that demand has to be proved by adducing clinching evidence. Under the circumstances, in absence of specific and clinching evidence to prove all such acts by the appellant accused, conviction recorded by learned trial Judge is not sustainable. 19. For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 14.9.2004 rendered by learned Special Judge, (ACB, Fast Track Court No. 2), Ahmedabad (Rural), Ahmedabad in Special Case (ACB) No. 4 of 1997 is quashed and set aside. The appellant accused is acquitted from the charges levelled against him. Bail bond, if any, stands cancelled. Fine, if any, paid by the appellant accused be refunded. R & P be sent back to the trial Court, forthwith. Appeal Allowed