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 29.11.2003 rendered by learned Additional Sessions Judge, 2nd Fast Track Court, Mehsana in Special ACB Case No. 15 of 2001. 2. The short facts giving rise to the present appeal are that the complainant approached the appellant for getting necessary signatures on the form for transferring the electricity connection from Ganeshpura to Devpura for which the appellant demanded Rs. 500/-. It is the case of the prosecution that the appellant also informed the complainant to pay the amount of tax and hence the complainant gave the amount of Rs. 500/- towards the tax for which the appellant has given necessary receipt. It is alleged that the complainant again requested the appellant to sign the form and other documents relating to transfer of electricity connection from one place to another, at that time, the appellant demanded another Rs. 200/-. As the complainant did not want to give the said amount of illegal gratification, he lodged the complaint before the ACB office on 14.5.2001. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet 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. 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. Mr. J.M. Panchal, learned senior advocate with Mr. K.J. Panchal, learned advocate for the appellant has taken this Court through the evidence of the witnesses as well as impugned order and argued that the complainant himself has deposed in examination-in-chief that the amount tendered at the time of trap was in order to clear outstanding dues of tax and not against any demand as to illegal gratification. He submitted that even in the cross examination, the complainant has clearly deposed that whatever the amount he has handed over to the appellant was in order to clear outstanding dues of tax. He submitted that the said fact is also emerging out from the mouth of panch No. 1 who accompanied the complainant at the time of trap and, therefore, vital ingredients as regards to demand and acceptance are not established by the prosecution. He submitted that even on going through the evidence of PW 3 - Doljibhai Savjibhai Asari, the certificate which came to be recovered from the place of trap clearly discloses that there was outstanding dues of tax payable to the panchayat by the complainant to the extent of Rs. 240/-, however, the said document was not annexed with the chargesheet, but during the course of cross examination of the complainant, the same document was brought on record. He submitted that the said fact is also emerging out from contemporaneous panchnama and therefore, in view of the aforesaid nature of evidence on record, the prosecution has miserably failed to establish vital ingredients as regards to demand, acceptance and recovery as such. He submitted that none of the witnesses had supported the case of the prosecution, but they were not declared hostile by the prosecution for the reasons best known to it. Lastly, Mr. Panchal requested this Court to allow the present appeal. 7. On the other-hand, Mr.K.P. Raval, 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. Lastly, Mr. Panchal requested this Court to allow the present appeal. 7. On the other-hand, Mr.K.P. Raval, 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 unnecessarily, the amount of illegal gratification has been described being the amount towards clearing outstanding dues of tax and in fact, that was the amount for illegal gratification. He submitted that wherever in the deposition of the complainant, the words "outstanding tax and fees" are described, the same are described in order to refer the amount of illegal gratification and therefore, this Court may draw inference in that manner only. He submitted that the said words have been used as misnomer to describe the amount of illegal gratification by the complainant as well as panch and, therefore, this Court may dismiss the appeal filed by the appellant - original accused. 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 Mr. J.M. Panchal, learned senior advocate with Mr. K.J. Panchal, learned advocate for the appellant and Mr. Raval, 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, the complainant was in need of getting signature and seal of the appellant accused for shifting his electricity connection for which he met the appellant accused around on 4.5.2001, at that time, initially, the appellant demanded Rs. 500/- as the amount of illegal gratification which came to be scaled down to Rs. 200/- thereafter. The appellant accused came to be caught red handed on 25.5.2001 and thereby the accused has committed the offence, as alleged. 10. PW 1 - Sureshbhai Kachrabhai Patel has been examined at Exh. 9. 500/- as the amount of illegal gratification which came to be scaled down to Rs. 200/- thereafter. The appellant accused came to be caught red handed on 25.5.2001 and thereby the accused has committed the offence, as alleged. 10. PW 1 - Sureshbhai Kachrabhai Patel has been examined at Exh. 9. The witness has deposed that he was having ancestral land in village and he wanted to shift electricity connection for which he was in need of signature and seal in the prescribed form of GEB from the appellant accused for which he met the appellant accused, at that time, on 11.5.2001, the accused demanded Rs. 500/- against outstanding tax, which he accepted and issued receipt thereof and thereafter he further demanded Rs. 200/- for outstanding dues of tax. The witness has deposed that as he was not willing to pay the same, he lodged the complaint before the ACB thrice i.e. on 14.5.2001, 16.5.2001 and 25.5.2001. The witness has deposed that thereafter ACB official arranged for trap and requisitioned panchas. The witness has deposed that the traps arranged on 15.5.2001 and 16.5.2001 remained unsuccessful and thereafter third time, the raid was carried out on 25.5.2001. The witness has deposed that he was accompanied by panch No. 1 to the office of Gram Panchayat where the appellant accused was found present in the office and the complainant and panch No. 1 took their respective seats in front of the accused and thereafter got the signature and seal of the appellant accused over the form for shifting electricity connection, at that time, other persons were also present there and when he asked for leave, at that time, the accused demanded outstanding amount of tax and hence, the complainant handed over tainted currency notes and thereafter gave signal. In the cross examination, the witness has admitted that he lodged the complaint against the accused under the misunderstanding. The witness has admitted that twice trap remained unsuccessful and on the third time, when he handed over the amount against unpaid tax, at that time, the members of raiding party arrived there. 11. PW 2 - Mangalbhai Mohandas has been examined at Exh. 15. The witness has deposed that he was serving in Employment office at Mehsana and he was requisitioned as official panch. 11. PW 2 - Mangalbhai Mohandas has been examined at Exh. 15. The witness has deposed that he was serving in Employment office at Mehsana and he was requisitioned as official panch. The witness has deposed that he was made to understand as regards to complaint, test of anthracene powder and as to how the trap was to be carried out. The witness has deposed that he was requested to remain with the complainant and was required to view and hear the conversation between the complainant and the accused. The witness has deposed that twice the trap remained unsuccessful and on the third time, while he accompanied the complainant, the accused was found present in his office, at that time, the complainant talked about taking signature and seal over the form. The witness has deposed that at that time, other persons have also visited the office of the accused. The witness has deposed that the accused handed over the form of the complainant after signing the same, at that time, the accused about outstanding dues and thereafter the accused took out tainted currency notes Rs. 200/- and handed over to the accused and gave signal and hence, the other members of the raiding party arrived there. In the cross examination, the witness has admitted that when the members of the raiding party arrived there, at that time, other persons were also present in the office of Gram Panchayat. The witness has admitted that the accused issued the receipt for outstanding amount of tax and the said receipt was seized by the ACB official. The witness has admitted that at the time of trap itself, it was made clear that there was outstanding amount of tax which remains unpaid by the complainant to the accused to the extent of Rs. 240/-. The witness has admitted that the accused had not demanded anything except the aforesaid outstanding amount of tax. 12. PW 3 - Doljibhai Savjibhai Asari has been examined at Exh. 26. The witness has deposed that he was Police Inspector, ACB, Mehsana at the relevant time and he recorded the complaint, arranged for trap and as to how the trap was carried out. The witness has deposed as to how twice the raid remained unsuccessful and also about the successful trap dated 25.5.2001. In the cross examination of the witness, certificate at Exh. The witness has deposed as to how twice the raid remained unsuccessful and also about the successful trap dated 25.5.2001. In the cross examination of the witness, certificate at Exh. 28 issued by the accused to the complainant came to be produced which indicates outstanding amount of tax to the extent of Rs. 240/-. The witness has admitted that during the course of trap, it was revealed that there was outstanding amount of tax to be paid by the complainant. The witness has admitted that the said fact has also been stated in the panchnama itself. The witness has admitted that in contemporaneous panchnama, there appears no disclosure as regards to any demand as to illegal gratification by the accused from the complainant. 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. 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, 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. 17. In the backdrop of the aforesaid factual position and on overall analysis of the evidence on record, indisputably, the complainant had not supported the case of the prosecution. Even in examination-in-chief itself, the complainant has deposed before learned trial Judge that the accused demanded outstanding amount of tax from him and he did not support the contents of his previous complaint at Exh. 10 as well as his two further statements recorded by the prosecution, though the prosecution did not declare him to be hostile. Even, in the cross examination, the complainant has gone to the extent that he paid the amount of illegal gratification towards outstanding amount of unpaid tax. Similar is the evidence of panch No. 1. 10 as well as his two further statements recorded by the prosecution, though the prosecution did not declare him to be hostile. Even, in the cross examination, the complainant has gone to the extent that he paid the amount of illegal gratification towards outstanding amount of unpaid tax. Similar is the evidence of panch No. 1. Precisely, vital ingredients as regards to demand and acceptance are to be proved from the oral evidence of the complainant as well as panch No. 1 who used to accompany the complainant at the time of trap. In the present case, both the aforesaid witnesses have consistently deposed that the amount handed over by the complainant to the accused was towards outstanding amount of tax. Not only that, even the say of the complainant as well as panch No. 1 is also getting support and corroboration from the contemporaneous panchnama as well as deposition of PW 3 - Trapping Officer. In this view of the matter, no evidence is available on record as regards to demand and acceptance. Once the prosecution has miserably failed to establish demand and acceptance, then in that eventuality, mere recovery becomes meaningless and does not constitute any offence, as alleged. In such type of cases, the prosecution has to prove that there was demand and there was acceptance of illegal gratification by the accused. Even, the prosecution has not examined any other witnesses present at the time when the amount was allegedly handed over to the accused by the complainant in the office of Gram Panchayat. 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. 18. For the reasons recorded above, the appeal succeeds. The impugned judgment and order of conviction dated 29.11.2003 rendered by learned Additional Sessions Judge, 2nd Fast Track Court, Mehsana in Special ACB Case No. 15 of 2001 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. The impugned judgment and order of conviction dated 29.11.2003 rendered by learned Additional Sessions Judge, 2nd Fast Track Court, Mehsana in Special ACB Case No. 15 of 2001 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