JUDGMENT/ORDER : R.P. Dholaria, J. Criminal Appeal No.542 of 2005 is preferred by Anantrai Dalpatrai Joshi - appellant - original accused against the judgment and order dated 11.3.2005 passed by learned Special Additional Sessions Judge, Fast Track Court No.1, Bhavnagar in Special Case No.1 of 1994 whereby the appellant - original accused No.1 was convicted for the offence under section 7 of the Prevention of Corruption Act 1988 ("the Act" for short) and sentenced him to undergo rigorous imprisonment for two years and six months and to pay fine of Rs.1000/-, in default, to undergo further nine months imprisonment, whereas Criminal Appeal No.1634 of 2005 is preferred by the State against acquittal of original accused Nos.2 and 3. However, surprisingly, original accused Nos.2 and 3 i.e. Bhagubhai Samantbhai Khachar and Maldev Khimraj Gadhvi respectively were not impleaded as respondents accused in the said appeal and therefore, they could not be served though the said appeal appears to have been filed against their acquittal. 2. The short facts giving rise to the present case are that accused No.1 while he was on duty at Keriya Dhal check post on 27.7.1993 during nocturnal hours, intercepted the driver of truck No.PCJ 4881 and demanded and accepted Rs.50/- as entry fees in the nature of illegal gratification and thereby the accused committed the offence under sections 7, 13(2) read with section 13(1) (d) of the Act. 3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the accused persons. 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 statements of the accused under section 313 of the Criminal Procedure Code, 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 - original accused No.1 has preferred the aforesaid Criminal Appeal No.542 of 2005, whereas the State has preferred Criminal Appeal No.1634 of 2005 before this Court. 5. 4. Being aggrieved by the same, the appellant - original accused No.1 has preferred the aforesaid Criminal Appeal No.542 of 2005, whereas the State has preferred Criminal Appeal No.1634 of 2005 before this Court. 5. By way of preferring Criminal Appeal No. 542 of 2005, the appellant - convicted accused 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 appearing for the appellant - original accused No.1 has taken this Court through the entire Record and Proceedings as well as depositions of witnesses and argued that Mr. Kulkarni, Police Inspector, ACB, Bhavnagar upon receipt of secret information that police officials, RTO officials and others are collecting entry fees laid the running trap on 27.7.1993 during nocturnal hours, availed the services of punter as well as shadow panch and upon completion of such trap, he himself has lodged the complaint before himself, inter alia, narrating entire episode as if he has viewed the incident of instant demand and acceptance on the part of the accused, as such and therefore, the investigation is vitiated. She further submitted that merely charge-sheet came to be filed by another police official PW 7 - Dodiya, otherwise crucial part of investigation is being carried out by Mr. Kulkarni. She submitted that detailed narration in the complaint indicates that Mr. Kulkarni has witnessed the entire incident, but the contemporaneous record in the nature of panchnama as well as statements of punter and panchas are indicating that Mr. Kulkarni was not present at the time of incident along with punter, but upon receiving the signal, Mr. Kulkarni arrived there. She, therefore, submitted that accused No.1 is required to be acquitted, as such. In support of her submissions, Ms. Jani has placed reliance on the decision of this Court in the case of Gopal Lal Ghisulal Chhipa and others Vs State of Gujarat, (1998) 1 GLH 943 . Kulkarni arrived there. She, therefore, submitted that accused No.1 is required to be acquitted, as such. In support of her submissions, Ms. Jani has placed reliance on the decision of this Court in the case of Gopal Lal Ghisulal Chhipa and others Vs State of Gujarat, (1998) 1 GLH 943 . She further submitted that evidence of punter Malkit Singh is not carrying the case of the prosecution any further so as to establish that there was clear demand of illegal gratification from punter by the accused. She further submitted that the prosecution has also failed to establish identity of the accused Mr. Joshi as the said punter has said that upon his presumption, he gave the name of accused Mr. Joshi. She submitted that evidence of punter is not helpful to the case of the prosecution as punter has clearly admitted that he was away from the place of trap and therefore, he has no conversation with the accused regarding demand of bribe and acceptance thereof. She, therefore, submitted that the prosecution has failed to prove the demand, acceptance and recovery beyond reasonable doubt. 7. On the other-hand, Ms. H.B. Punani, learned APP has supported the judgment rendered by learned trial Court so far as it relates to conviction of original accused No.1. She submitted that this is a fit case wherein learned trial Court has considered voluminous evidence in its proper perspective and rightly convicted the accused No.1. She further submitted that finding recorded by learned trial Court is based upon the concrete and clinching evidence and, therefore, punishment inflicted upon the accused No.1 does not call for any interference. She further submitted that learned trial Court has elaborately dealt with the evidence on record and rightly relied upon the evidence of shadow panch and deposition of shadow panch is fully getting corroboration from contemporaneous panchnama and therefore the prosecution has successfully established all the three ingredients and therefore, this Court may not interfere with the impugned judgment and order of conviction. 8. This Court has heard Ms. Bhavini Jai, learned advocate appearing for the appellant - accused No.1 and Ms. Punani, learned APP for the 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. 10. 8. This Court has heard Ms. Bhavini Jai, learned advocate appearing for the appellant - accused No.1 and Ms. Punani, learned APP for the 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. 10. As per the prosecution version, as stated above, accused No.1 while he was on duty at Keriya Dhal check post on 27.7.1993 during nocturnal hours, intercepted the driver of truck No.PCJ 4881 and demanded and accepted Rs.50/- as entry fees in the nature of illegal gratification and thereby the accused committed the offence under sections 7, 13(2) read with section 13(1) (d) of the Act. 11. Pw 1 - Malkit Singh Bhala Singh Jat has been examined at Exh.28. The witness has deposed that he was driver and he was plying his truck No.PCJ 4881. He was requisitioned as punter. The witness has deposed that while the truck of punter was proceeding within vicinity of Kariya Dhal Check Post upon Vallabhipur Bagodara Highway, at that time, one of the accused throw torch light and intercepted the truck, due to which, he stopped his truck and thereafter one of the police asked for entry fees. The witness has deposed that therefore, he handed over Rs.20/- though Rs.50/- was demanded and the said police personnel put the said amount into his pocket. During the course of examination-in-chief, learned Public Prosecutor tried to identify the accused, at that time, the witness answered that according to his own presumption, name of the said personnel was Anant Joshi, but the witness has not identified accused No.1 before the learned trial Court. In the cross examination, the witness has admitted that he was hailing from Punjab and he was not knowing Gujarati language. 12. Pw 2 - Prakashkumar Balwantrai Mehta, shadow panch has been examined at Exh.30. The witness has deposed that at the relevant time, he was working as Maintenance Surveyor in City Survey office. The witness has deposed that he was requisitioned and he proceeded along with punter upon the truck. On the day of trap, while the truck was proceeding within the vicinity of Kariya Dhal Check Post, at that time, the truck was intercepted by the accused and thereafter one of the police personnels demanded entry fees which the truck driver handed over. On the day of trap, while the truck was proceeding within the vicinity of Kariya Dhal Check Post, at that time, the truck was intercepted by the accused and thereafter one of the police personnels demanded entry fees which the truck driver handed over. In the cross examination, the witness has admitted that the trap was carried out during mid-night and therefore, he could not see as regards to handing over the amount to the accused and acceptance thereof as he was away and therefore, he could not hear the conversation between the punter PW 1 and the accused. 13. In view of the aforesaid nature of evidence, the important question arises for determination of this Court, as to whether the prosecution has established the three ingredients i.e. demand, acceptance and recovery of illegal gratification of Rs.50/- or not. 14. On analysis of the aforesaid evidence on record, it is clearly emerging out that upon receipt of secret information, Mr. Kulkarni, Police Inspector, ACB, Bhavanagar held running trap after availing services of punter, shadow panch and other members of the raiding party. The search and seizure was also carried out from the person of the accused. 15. In view of the aforesaid nature of evidence, it is clear that the trap in question was running trap. Upon receipt of secret information, Mr. Kulkarni, Police Inspector, ACB, Bhavnagar arranged for trap and thereafter, he himself has carried out the trap and after successful carrying out of trap, he himself has lodged the complaint before himself and thereafter also, to some extent, he has carried out crucial part of investigation. However, the prosecution has not examined the said Police Inspector Mr. Kulkarni as he was bed ridden. 16. On going through the recital emerging out from the complaint itself, whatever factual scenario narrated by the Police Inspector Mr. Kulkarni, it is revealing that he himself has viewed the incident while demand came to be raised by accused No.1 from the punter and in pursuance thereof, the amount of illegal gratification was handed over to the accused by the punter. In fact, the Record and Proceedings also indicates that the Police Inspector Mr. Kulkarni, it is revealing that he himself has viewed the incident while demand came to be raised by accused No.1 from the punter and in pursuance thereof, the amount of illegal gratification was handed over to the accused by the punter. In fact, the Record and Proceedings also indicates that the Police Inspector Mr. Kulkarni was not travelling upon the truck in which the punter and shadow punch were travelling, but he was in another vehicle and upon receiving the signal, he arrived, however, in his complaint before himself, he has stated the incident as if he has witnessed the same. 17. So far as the evidence of the punter as well as shadow panch is concerned, there appears no uniformity in their evidence. The punter could not identified the accused and upon his presumption, he named one accused as Anant Joshi out of four accused. The Record and Proceedings is not clearly indicating that the punter has identified all the four accused or even accused No.1 before the learned trial Court. Similarly, the shadow panch had also not identified any one of them as accused either before the police while his statement was recorded or before the learned trial Court. In his deposition, the shadow panch has clearly and categorically admitted that as he was away from the place of incident, he could not hear the conversation between the punter and accused No.1 and also could not view as regards to handing over the amount of illegal gratification from the punter to the accused No.1 as the trap was laid during nocturnal hours. 18. The case on hand is also squarely covered by the decisions of the Honourable Apex Court in the case of B. Jayraj, (2014) AIR(SC) 1837 and M.R. Purushotham Vs State of Karnataka, (2015) 3 SCC 247 . 19. 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. 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, (1976) AIR(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. 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. 20. In view of the above discussion, the Criminal Appeal filed by the appellant - accused No.1 is allowed. The impugned judgment and order dated 11.3.2005 passed by learned Special Additional Sessions Judge, Fast Track Court No.1, Bhavnagar in Special Case No.1 of 1994 is quashed and set aside. The appellant - accused No.1 is acquitted of the charges levelled against him. Fine, if any, paid by him be refunded to him. Criminal Appeal No.1634 of 2005 also stands dismissed. Record & Proceedings, if any, be sent back to the trial Court concerned forthwith.