JUDGMENT : 1. This is an appeal preferred under Section 374(2) of the Code of Criminal Procedure, 1973 and Section 27 of the Prevention of Corruption Act, 1988 against the judgment and order of conviction and sentence dated 18.01.2005 passed in Special Case (ACB) No. 2 of 2001 by learned Special Judge & Additional Sessions Judge, 5th Fast Track Court, Veraval, convicting the present appellant to undergo (i) rigorous imprisonment for three years & six months with a fine of Rs.5000/- for the offence punishable under Section 7 of the Prevention of Corruption Act and in default to pay fine, further undergo simple imprisonment for nine months (ii) rigorous imprisonment for three years & six months with a fine of Rs.5000/- for the offence punishable under Section 13(2) of the Prevention of Corruption Act and in default to pay fine, further undergo simple imprisonment for nine months. 2. As per the prosecution version, the present appellant–accused was serving as Mines Supervisor in the Mines and Minerals Department at Una, District Junagadh, whereas the complainant was the President of the society namely Mirapur Mazur Bandhkam Sahakari Mandali and used to obtain the contract for road & building works from the Public Works Department, State of Gujarat. The society had undertaken the work of constructing road and therefore, for such work, the society through the contractor asked for royalty certificate from the accused. For issuance of such certificate, the accused had demanded Rs.5000/- as illegal gratification which came to be scaled down to Rs.2500/-. Thereafter, on 13.04.1999, the accused accepted Rs.500/- and rest of the amount of Rs.2000/- was required to be paid on 16.04.1999. As the complainant was not ready to give such amount of illegal gratification, he approached the office of Anti Corruption Bureau at Rajkot and lodged the complaint. Thereafter, on 16.04.1999, at around 9:30AM, the complainant visited the office of the accused and asked for the certificate and at that time, he told the accused that he had brought the amount as was asked for and placed the same over the table of the accused. Thereafter, the raid was carried out and the said amount came to be recovered over the table of the accused. Thereby, the present appellant– accused has committed the offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act. 3. Learned advocate Mr. Thereafter, the raid was carried out and the said amount came to be recovered over the table of the accused. Thereby, the present appellant– accused has committed the offence punishable under Sections 7 and 13(2) of the Prevention of Corruption Act. 3. Learned advocate Mr. B. Y. Mankad for the appellant has taken this Court through the record & proceedings and read out the evidence of all five witnesses who were examined before the learned Trial Court. Learned advocate has pointed out that the prosecution has miserably failed to establish the main ingredients as regards the pre-demand and acceptance of Rs.500/- as well as instant demand of Rs.2000/- and acceptance thereof. He has further argued that since the trap came to be laid in the office of the present appellant and thereafter, the entire search & seizure and other procedures came to be undertaken at the distant place at circuit house at Una, consequently therefore, the prosecution has miserably failed to establish even the recovery aspect also. He has further argued that as per the prosecution case, the initial demand and acceptance thereof came to be made in presence of three persons, however the prosecution has not examined these persons in order to establish such demand and acceptance thereof on part of the appellant. He has further argued that oral evidence of all the five witnesses as well as contemporaneous panchnama clearly reveal that there was no sign of anthracene powder over the person’s hand and the cloths of the appellant, consequently therefore, the acceptance on part of the appellant is not being established. Further, he has argued that since there was no completion of the work, therefore there was no question of preparing a final bill and for that, no question had arisen to ask for certificate from the Department of Mines and Mineral for royalty and the entire case is based on false grounds. He argued that at alleged time on 13.04.1999, the complainant had never visited the office of the appellant and that he was busy with inspection of other mines and for that purpose, even the appellant had tendered documentary evidence on record and that has not been taken into consideration by the learned Trial Court. He argued that at alleged time on 13.04.1999, the complainant had never visited the office of the appellant and that he was busy with inspection of other mines and for that purpose, even the appellant had tendered documentary evidence on record and that has not been taken into consideration by the learned Trial Court. The learned Trial Court, according to his submission, has wrongly based its findings without appreciating the evidence in its proper perspective and wrongly recorded the conviction and sentence of the appellant and wrongly believed to be proved the crucial aspect of demand and acceptance thereof, which requires to be quashed and set aside. Further also, he has pointed out that the certificate at Exh.53 issued by the Executive Engineer, Salt Control Department clearly mentions that the Salt Control Department had never asked for any royalty certificate from the complainant/Cooperative society, consequently, according to his submission, the entire case is concocted one and it has been wrongly framed by placing alleged demand of illegal gratification over the table of the appellant. 4. On the other hand, learned Additional Public Prosecutor Ms. Maithili Mehta has argued that the learned Trial Court dealt with each one of the points of determination and recorded the findings based upon the evidence available on record, therefore, this Court may not interfere with the findings recorded thereof. Further, she submitted that the evidence of the complainant as well as other shadow panch is consistent as regards the demand and acceptance aspect and the prosecution has successfully proved the demand on part of the appellant-accused and acceptance thereof also. She submitted that the prosecution not only proved the instant demand and acceptance thereof, but even the initial demand and acceptance of Rs.500/- is also successfully proved and that has been rightly believed by the learned Trial Court. 5. Prosecution witness No.1-Naginbhai Rajabhai Jankant who is the complainant, has deposed that in the year 1999, he was the President of Mirapur Mazur Bandhkam Sahakari Mandali and he was carrying out the work of construction of road & building etc. within the jurisdiction of Salt Control Department for which he was being paid Rs.1,67,000/-. The contract was for Rs.2,63,000/-. He further deposed that one Mr. Sosa, Deputy Executive Engineer, Salt Control Department, asked for the requisite certificate for preparing a final bill and therefore, the complainant approached the office of the appellant-accused. within the jurisdiction of Salt Control Department for which he was being paid Rs.1,67,000/-. The contract was for Rs.2,63,000/-. He further deposed that one Mr. Sosa, Deputy Executive Engineer, Salt Control Department, asked for the requisite certificate for preparing a final bill and therefore, the complainant approached the office of the appellant-accused. At that time, he asked for the certificate without money and thereafter, the complainant himself voluntarily told that he shall pay Rs. 2500/- as illegal gratification. He identified the accused before the court. He also deposed about lodging of the complaint before the Anti Corruption Bureau at Rajkot. He also testified as to how the test of anthracene powder was carried out over the currency notes. He further deposed that on 16.04.1999, he rushed along with panchas and other police officials at circuit house and thereafter resting for some time, in the morning, they visited the office of the accused. At that time, the accused asked him as to whether he had brought the certificate of quantity used by him and thereafter, the complainant told the accused that he had brought the money as per the talk and thereafter, he placed the amount of illegal gratification over the table and gave the signal, due to which, the other members of raiding party arrived there and thereafter, the accused was taken to the circuit house where the panchnama of search & seizure was carried out. At the circuit house, no incriminating signs were found over the person of the appellant. In the cross-examination, nothing worth has come out. 6. Prosecution witness No.2-Satishkumar Narsinhbhai Katara who was requisitioned by the Anti Corruption Bureau and at the relevant time serving as Helper in the Gujarat Electricity Department at Rajkot, has deposed that he was requisitioned by the Anti Corruption Bureau. He deposed that on 16.04.1999, he rushed to the circuit house and after taking rest for some time, they visited the office of the accused. At that time, the complainant asked for the certificate to the accused and the accused asked him as to whether he had brought the quantity utilization papers or not. Thereafter, the complainant placed the tainted currency notes over the table in the office of the accused and gave the signal, due to which, the members of raiding party arrived there and thereafter, the search and seizure was carried out at the circuit house. Thereafter, the complainant placed the tainted currency notes over the table in the office of the accused and gave the signal, due to which, the members of raiding party arrived there and thereafter, the search and seizure was carried out at the circuit house. No incriminating signs were found over the person of the accused. In the cross-examination, he admitted that had had no idea as to whether his statement before the police was recorded. He also admitted that he had not stated that the accused demanded Rs.2000/-. 7. Prosecution witness No.3 – Harikrishnadas Bipinbihari Das, Commissioner of Mines and Mineral Department, Government of Gujarat had examined the documents and approved sanction to prosecute was granted by him which has been brought on record at Exh.23. 8. Prosecution witness No.5-Mahendraray Jayashankar Dave has deposed that as on 21.04.1999, he was serving at Anti Corruption Bureau, Rajkot and he carried out the part of the investigation. In his cross-examination, he admitted that the Executive Engineer has issued the certificate indicating that the Executive Engineer had not demanded any royalty certificate from the complainant. 9. From the above-referred oral and documentary evidence available on record as well as on analysis thereof, it is the case of the prosecution that on 13.04.1999, initially, the appellant-accused demanded and accepted Rs. 500/- as illegal gratification. In order to prove the charge, neither any satisfactory evidence is coming forth from the mouth of the complainant, nor in order to prove the aforesaid allegation, the prosecution has examined other three persons in whose presence, the amount to the extent of Rs.500/- was asked for as illegal gratification. In absence of clinching and clear evidence as regards the instant demand and acceptance thereof, the prosecution has miserably failed to prove the demand and acceptance of Rs.500/- on 13.04.1999. 10. So far as the demand and acceptance of Rs.2000/- during the course of the trap and involvement of the accused and caught raid-handed him along with illegal gratification is concerned, neither the evidence of the complainant nor the evidence of the shadow panch i.e. Prosecution Witness No.2 led the prosecution case any further to establish that at the time of trap, there was a demand by the accused from the complainant for the illegal gratification of Rs.2000/-. On the contrary, the evidence on record is in the nature that at the time of visit to the office of the accused, when the complainant initiated the talks with the accused, the accused demanded the quantity utilization papers to which the complainant told that he had no such papers and thereafter, the evidence indicated that the complainant thrust upon the amount of illegal gratification and placed the same over the table of the accused. 11. On overall evaluation of the evidence of Prosecution Witness No.1-the complainant and Prosecution Witness No.2-Shadow Panch, nothing is revealed as regards the demand and acceptance of illegal gratification and consequently therefore, the learned Trial Court has wrongly believed that such ingredients were proved. 12. So far as the aspect of the amount of illegal gratification of Rs.2000/- is concerned, very disturbing feature is forth coming from the evidence of the prosecution itself. Soon after raid, the team of Anti Corruption Bureau rushed to the office of the accused and thereafter, the accused was taken to the circuit house and the detailed search & seizure procedure was carried out which was not at the place of trap, but at a distant place at circuit house, Una consequently therefore, the prosecution has miserably failed to prove the search & seizure aspect also. Even otherwise also, the contemporaneous panchnama prepared at the time of trap as well as oral evidence clearly reveal that there was no incriminating signs over the cloth of the appellant so as to link him with the crime for accepting the amount of illegal gratification. 13. 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 there under 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 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. 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. For the reasons recorded above, the prosecution has miserably failed to prove the vital ingredients as regards the demand of illegal gratification and acceptance thereof as well as recovery of the tainted current notes during the course of trap. Even the search and seizure was carried out at a distant place at the circuit house, Una and not at the office of the accused which also raises a reasonable doubt. Even the search and seizure was carried out at a distant place at the circuit house, Una and not at the office of the accused which also raises a reasonable doubt. On that count also, it would be difficult to believe carrying out of search and seizure to the person of the accused. 17. For the reasons recorded above, the judgment and order of conviction and sentence dated 18.01.2005 passed in Special Case (ACB) Case No. 2 of 2001 by learned Special Judge & Additional Sessions Judge, 5th Fast Track Court, Veraval, is not sustainable in law and deserves to be quashed and set aside. Accordingly, the same stands quashed and set aside. Resultantly, the Appeal is allowed. Fine, if any recovered, shall be refunded. 18. R & P, be sent back to the Trial Court concerned forthwith.