JUDGMENT : B.N. KARIA, J. 1. By way of preferring this Criminal Appeal, appellant-State of Gujarat has challenged the impugned judgment and order dated 30.08.2005 passed by learned Special Judge (F.T.C. No. 4) Morbi in Special A.C.B. Case No. 7 of 1997. 2. Learned APP for the appellant-State of Gujarat has submitted report of the Police Inspector ACB Police Station, Morbi dated 17.02.2020 and submitted that accused No. Ranjitsinh Shivubha Zalamar, accused No. 2-Gafarbhai Hasamkhan Pathan and accused No. 3-Suryakant Fulshankar Joshi have passed away. Learned APP has produced xerox copies of their death certificates on record. It is requested by learned APP to abate this appeal against original accused Nos. 1, 2 and 3. 3. Considering the submissions made by learned APP for the appellant as well as report along with death certificates of the accused Nos. 1 to 3, who have passed on 24.08.2018, 16.07.2008 and 29.03.2019 respectively, this appeal would not survive against the accused Nos. 1 to 3 and therefore, this criminal appeal stands abated against the accused Nos. 1 to 3, as they have passed away. 4. The brief facts are as under: “That the respondents-accused were discharging their duties as Head Constable and Police Constable respectively at Wankaner Taluka Police Station and thus, they were public servant contemplating under the Act. Upon receiving the intelligence tip that all the respondents-accused were stopping truck on the National Highway near Bamanbore boundary and taking Rs. 20 on the pretext of entry fee from truck driver, decoy trap was arranged. The accused No. 1 demanded Rs. 20/- from Prosecution witness Shanker Thakor with conspiracy of other accused and accepted the same on 29.04.1993 at about 1:25, near Chandrapur, Village: Patiya, National Highway Road and thus, investigation was initiated against the respondents-accused and after completing the investigation, charge-sheet came to be filed before the competent Court and said came to be transferred as Special A.C.B. Case No. 7 of 1997 before the Concerned Court.” 4.1 The Hon'ble Special Judge, Morbi was pleased to frame charge for the offence punishable under Sections 7, 12, 13, 13(1), 13(g)(h), 1-2-3 and 13(2) of the Prevention of Corruption Act. Plea of the each of the respondents-accused were recorded, wherein the respondents-accused pleaded no guilty and claimed to be tried. Plea of the each of the respondents-accused were recorded, wherein the respondents-accused pleaded no guilty and claimed to be tried. 4.2 During the course of trial, the prosecution produced elaborate evidence both documentary as well as oral and examined as many as 3 witnesses and produced as many as 12 documentary evidence. The Hon'ble Sessions Court was pleased to acquit the respondents-accused on the ground that the prosecution has failed to establish beyond reasonable doubt the charge by granting benefit of doubt. 4.3 The State of Gujarat being aggrieved with the judgment of acquittal, has preferred this Appeal against the order of acquittal passed by learned Special Judge (F.T.C. No. 4), Morbi in Special A.C.B. Case No. 7/1997. It is therefore, respectfully prayed to grant leave to appeal against the order of acquittal on 11.12.2007 this appeal was admitted by this Court. 5. Heard learned APP for the appellant and learned advocate for the respondent No. 4. 6. Learned APP for the appellant-State of Gujarat has submitted that judgment and order of acquittal is contrary to law, evidence on record and principles of justice. That, the judgment and order of acquittal is based on inference not warranted by facts of the case and also on presumption not permitted by law. That, the learned Special Judge has not properly appreciated oral as well as documentary evidence on record of the case. That learned Special Judge has not appreciated the version of prosecution witness No. 1 who has been examined vide Exh.10, who is the prosecution witness and was with truck driver at the relevant point of time and was instructed to hear conversation of the accused persons and the driver. This witness has admitted to have seen the experiment with the ultraviolet lamp and Anthrecene Poweder and also admitted to have seen four persons on the highway road, who halted truck and out of four persons came near to the truck and demanded entry fees from the driver and accordingly, driver handed over Rs. 20/- to the plain clothes person. As soon as that driver was alighted from the truck, the Police Inspector caught hold off accused person who received the money. Learned Special Judge erroneously come to the conclusion that the prosecution witnesses are not worthy of credence and are not believable. There is no reason to disbelieve the version of this witness. 20/- to the plain clothes person. As soon as that driver was alighted from the truck, the Police Inspector caught hold off accused person who received the money. Learned Special Judge erroneously come to the conclusion that the prosecution witnesses are not worthy of credence and are not believable. There is no reason to disbelieve the version of this witness. That, conclusion that there are measure discrepancies in the deposition of this witness. As a matter of fact, learned Special Judge did not consider the important fact that it is categorically stated by the prosecution that the demand has been proved by the deposition of the prosecution witness Nos. 1 to 3 as well as acceptance is also proved by way of documentary evidence. From the deposition of all the witnesses, all the ingredients of the offence have been successfully proved by the prosecution hence acquittal given by the learned Special Judge is contrary to law and evidence on record. Ultimately, it was requested by learned APP for the appellant-State to allow this appeal. 7. Learned advocate for the respondent No. 4 has supported the judgment and order passed by the learned Special Judge and submitted that complainant himself is not examined by the prosecution on account of his death after lodging the offence committed by them. Referring the deposition of the PW-2 Shankarbhai. Chhaganbhai Thakor-Driver. Learned advocate for the respondent No. 4 has argued that at the time of the alleged offence, one person having the formal dress went to the truck of this witness and other 3 persons went to the National Highway near Bamanbore Boundary. That no demand was made by the accused No. 4 from the complainant nor any amount was accepted by him. That no recovery was made by the prosecution from the custody of the accused No. 4. That necessary ingredients were not proved by the prosecution to attract the involvement of the present accused No. 4 in the offence. It is further submitted by learned advocate for the respondent No. 4 that prosecution has failed to prove any demand for the alleged illegal gratification involved and thus, the vital essential ingredients of the offences both under Sections 7,13 of the Act being conspicuously absent, the learned Special Judge has rightly acquitted from the charge on both counts. It is further submitted by learned advocate for the respondent No. 4 that prosecution has failed to prove any demand for the alleged illegal gratification involved and thus, the vital essential ingredients of the offences both under Sections 7,13 of the Act being conspicuously absent, the learned Special Judge has rightly acquitted from the charge on both counts. He has further argued that even assuming without admitting that the recovery of the tainted notes from the accused No. 1 had been established, sense the prove of demand which is a sine qua non for an offence both under Sections 7 and 13 of the Act, acquittal of the present accused No. 4 as recorded by the learned Special Judge on the face of the record cannot be interfered by this Court on facts. Without prejudice to the above, learned counsel for the respondent No. 4 has submitted that the money shown to have been recovered from the possession of the accused No. 1 was by no means and illegal gratification demanded by him but was towards fees for octroy charges. In support of his arguments, learned advocate for the respondent No. 4 has placed reliance upon a judgment reported in (2015) 10 SCC 152 as well as (2016) 3 SCC 108 and requested to dismiss the appeal. 8. The materials placed on record have been duly traversed by this Court in order to adequately appreciate and waive the competing contentions. Though dealt with exhaustively by the Court below, having regard to the profuse reference to the evidence on record made in the course of arguments, this Court considered it to be apt to advert thereto in bare essentials and to the extent indispensable. 9. Admittedly, the complainant Mr. Zala, P.I. A.C.B. Rajkot could not be examined as a witness for the prosecution as he had expired during the pendency of the trial. To reiterate in his complaint lodged by him, he has stated that on a information received by him, accompanying with the Assistant Police Officer, a trap was arranged. Two panchas namely Hajibhai Somabhai and Bharat Gokuldas resident of Morbi were called in the circuit house from the office of City Survey at about 13:00 and were informed about trap. In a government vehicle, they reached at the place of the trap and requested to Mr. Two panchas namely Hajibhai Somabhai and Bharat Gokuldas resident of Morbi were called in the circuit house from the office of City Survey at about 13:00 and were informed about trap. In a government vehicle, they reached at the place of the trap and requested to Mr. Shankarbhai resident of Santalpur, Banaskantha to cooperate them in making trap in respect of the illegal gratification received by the persons. Preliminary panchnama was prepared in respect of applying Anthrecene Powder and throwing it in ultra violate lamp. Tainted notes were put in the pocket of the driver Shankarbhai. He has alleged in the complaint by making complain that on the highway road near Chandrapur village, Head constable Ranjitsinh Shivubha Zalamar demanded entry fees of Rs. 20/- from the Driver- Shankarbhai. The said driver Shankarbhai handed over tainted note of Rs. 20/- having the Anthecene Poweder which was accepted by him and put the same in his left side pocket of his pent. The complainant himself and Panch No. 1 leaving from the truck went ahead to the Head Constable Mr. Ranjitsinh Shivubha Zalamar just behind. Another Police Inspector Mr. Mansukhbhai Harilal Tank , head Constable Narayanbhai and panch No. 2 also arrived and caught persons who accepted tainted note of Rs.20/-. On an inquiry made to him, he stated his name as Ranjitsinh Shivubha Zalamar, an armed Police Constable, C.P.I. Office, Wankaner. Head Constable Gafar Khan and person sitting behind him ran away from the place on Rajdoot Motor cycle bearing G.R.K. No. 2758. Name of the pillion rider was shown as Suryakant Fulshankar Joshi. One police constable Mohammadbhai Bapubhai Khokhar was also ran away on his red colour Bajaj Motor Cyccle, who was identified by Police Inspector Mr. Tank. Assistant Police Commissioner, Shri Ganatra had tried to catch them in jeep motor vehicle behind the motor cycle and caught head constable Shri Gafarbhai Hasamkhan Pathan and police constable Shri Suryakant Fulshankar Joshi and another person ran away on his motorcycle i.e. Mohammadbhai Bapubhai Khokher of Pithuva out post was inquired but he was not found. On a search of the head constable Mr. Ranjitsinh Shivubha Zalamar, who had accepted illegal gratification of Rs. 20/- was not in a position to clarify about accepting the tented note. His pent was seized by the police where tainted note of Rs. 20/- was found. From the other co-accused Gafarbhai Hasamkhan Pathan, Rs. On a search of the head constable Mr. Ranjitsinh Shivubha Zalamar, who had accepted illegal gratification of Rs. 20/- was not in a position to clarify about accepting the tented note. His pent was seized by the police where tainted note of Rs. 20/- was found. From the other co-accused Gafarbhai Hasamkhan Pathan, Rs. 224/- was seized as well as his Rajdoot Motor Cycle bearing Rajdoot No. G.R.K. No. 2758. During the personal search of Police Constable Mr. Suryakant Fulshankar Joshi, Rs. 38 was recovered from his custody and detail panchnama was prepared. From the allegations made against all the accused, being a public servant, four accused persons had hatched conspiracy by accepting illegal gratification from the truck drivers on National Highway for their personal benefits and being a public servant, they misused their position and accepted illegal gratification and therefore, the complaint was lodged against them. From the complaint itself there is no allegations against the present accused No. 4 namely Mahammadbhai Bapubhai Khokher about demanding any illegal gratification from the driver Shankarbhai or accepting any amount of illegal gratification as well as the recovery of tainted notes from his custody. Prosecution, in support of its case has examined Shri Hajibhai Somabhai Panch No. 1 as PW-1 vide Exh.10. He has reiterated his statement of trap made at the place on the day of incident. However, he has considered the main part of the detention along with other police officers reached near Chandrapur Village and two motorcycles were parked and two persons having brown dress and two persons in formal dress were standing there, out of them, one person stopped their truck. Truck was in running condition and near to door of the truck, one person having a formal dress came to the door of the truck driver and demanded entry fees from the driver. The driver handed over one tainted note of Rs. 20/- to the person having a formal dress. The persons who had accepted the entry fees was pretexting towards the truck coming from the backside at that time he was caught by Shri Zala and introduce himself as an Police Inspector of A.C.B. Second Panch as well as Shri Tank also reached at the scene of the offence and other 3 persons standing nearby to motorcycle seeing them ran away from the place of the offence. Shri Ganatra and Shri Tank, Police Officers went to grab them in a police vehicle. The person having a simple dress was inquired by Shri Zala, wherein it was found that he was Shri Ranjitsinh Shivubha Zalamar. On an inquiry made to him, he had received Rs. 20/- from the truck driver Shri Shankarbhai. After sometime Shri Ganatra and Shri Tank police officers returned back in a police vehicle along with two persons. One person was absconded, who was not found. Other two persons declared their names and thereafter all of them went to circuit House, Wankaner. Other two persons were searched in Circuit House and from them, some amount was found. From the search of accused No. 1 Ranjitsinh Shivubhai Zalamar tainted note of Rs. 20/- and other amount were found. Both the drivers were in hurry and were permitted to leave the place, and therefore, they had left the scene of offence alongwith truck. A tainted note of Rs. 20/- was recovered from the possession of the accused No. 1 i.e. Ranjitsinh Shivubhai Zalamar. There were searching marks of anthrecene powder while experiment on a lamp. pent of the accused No. 1 was seized as well as the muddamal tainted note and other amount. Such marks were found on the hands of the accused No. 1. Motorcycle was also seized by the police and panchnama was prepared, produced below Exh.11. This witness has identified his signature below Panchnama. In the cross-examination this witness has admitted that when the accused No. 1 came and stop the truck, engine of the truck was running and driver of the truck was speaking something, bring his face out of the window, but this witness had no idea what he was speaking in the particular words. This witness has no idea of what tainted note or what amount of tainted note was taken up by the driver from his pocket. As per his admission and his cross-examination he was not in a position to see whether tainted note was fell down on the ground when it was handed over to accused No. 1. In Para 4 of his cross-examination, he has admitted that when the truck was stopped other persons who were with motorcycle had slowly started with their motorcycle. As per his admission and his cross-examination he was not in a position to see whether tainted note was fell down on the ground when it was handed over to accused No. 1. In Para 4 of his cross-examination, he has admitted that when the truck was stopped other persons who were with motorcycle had slowly started with their motorcycle. From the entire deposition of this Panch Witness No. 1, it is nowhere stated by him that any demand was made by the accused No. 4 from the truck driver Shankarbhai or any amount was received by him from the said truck driver or any recovery was made from him. Whatever the conversation was taken place, as per the evidence of this witness, was between the truck driver and accused No. 1 Ranjitsinh Shivubhai Zalamar and other 3 persons were standing nearby to motorcycle. When truck was stopped by accused No. 1 Ranjitsinh Shivubhai Zalamar, other 3 persons had already started to move from the place of the incident on their motorcycle slowly. Panchnama was produced below Exh.11. As per the contents of this panchnama also a demand was made by the accused No. 1 from the truck driver namely Shankarbhai and he had given tainted note of Rs. 20/- to said persons who accepted by his left hand and put the tainted note in the left side pocket of his pent. He was caught by Shri Zala Police Officer. Other persons ran away on their Rajdoot Motorcycle bearing Registration No. G.R.K. No. 2758 towards Bamanbore boundary and another persons Gafarkhan Pathan ran away on Rajdoot Motorcycle. Mahammadbhai Bapubhai Khokher was also ran away on his red colour Bajaj motorcycle, who was in the police dress. There is no allegations in the panchnama about demanding any illegal gratification by the accused No. 4 from the truck driver, accepting any illegal gratification from the truck driver or putting any tainted notes in his pocket or recovery of any tainted amount from the possession of the accused No. 4. Shankar Bhai Thakor is the PW-2 and as per his evidence, after crossing the Wankaner City, he was driving his truck and cleaner was sitting behind him. On the highway road two motorcycles were parked and four persons were standing. Out of these four persons, two persons were in police dress and two persons were in formal dress. Shankar Bhai Thakor is the PW-2 and as per his evidence, after crossing the Wankaner City, he was driving his truck and cleaner was sitting behind him. On the highway road two motorcycles were parked and four persons were standing. Out of these four persons, two persons were in police dress and two persons were in formal dress. They requested to stop the truck and therefore, the driver of the truck has stopped his truck on right side. Engine of the truck was running. As per the further evidence of this witness, one person having a formal dress came towards his truck and other person accompanying him went towards Bamanbore boundary. The person having the formal dress came to this witness and requested to give builty. This witness was unable to understand the demand made by the said person on account of running engine of the truck. Thereafter, he gave a currency note of Rs. 20/- to the person having a formal dress from the window, which was cololured with Anthrecene Powder. This witness and his cleaner came out from the truck and as per the instructions as the illegal gratification was accepted by the person, he made a mark to call the other police officials and therefore, two police officials and panch witnesses reached at the place of the offence and caught the person who accepted the tainted note. Marks of anthrecene powder was found on his hands. Other Rs. 30/- having anthrecene powder from the pocket of this witness was recovered and thereafter, he was permitted to leave to the place. This witness was unable to identify the tainted note of Rs. 20/- before the Court. He was not in a position to identify the accused on account of long time passed away. While showing the accused, this witness was not in a position to identify any of the accused. In his cross examination he has admitted that when he came out from his truck, he had seen a currency note of Rs. 20/- nearby to driver side wheel. This witness has not stated anything in his evidence of demanding any illegal gratification by the accused No. 4, accepting any amount by him, handing over any amount by this witness to the accused No. 4 or recovery of any amount by the Trapping Officer from the possession of the accused No. 4. 20/- nearby to driver side wheel. This witness has not stated anything in his evidence of demanding any illegal gratification by the accused No. 4, accepting any amount by him, handing over any amount by this witness to the accused No. 4 or recovery of any amount by the Trapping Officer from the possession of the accused No. 4. He has not given the name of the accused No. 4 also in his evidence. 10. PW-3 is Shri Mansukhbhai Harilal Tank is the Trapping Officer, accompanying the complainant and Assistant Police Commissioner Mr. P.H. Ganatra alongwith two panch witnesses. Prosecution has not examined Panch witness No. 2 Bharat Gokuldas. He has supported prosecution case to some extent and trap carried out by Mr. Zala. As per the evidence of this witness in his cross-examination, on highway road of Morbi Wanakaner Highway, two motorcycles were parked and 4 persons were standing. Out of them, two persons were in police dress and two persons were in formal dress. All of them stopped the truck driver and truck was stopped by the Driver-Shankarbhai, wherein this witness was sitting. Out of these persons, one person accepting illegal gratification of Rs. 20/- from Shankarbhai who was in brown pent and white shirt. Immediately Mr. Zala and Panch No. 1 came out form the truck. This witness and PW-2, alongwith Head Constable Narayanbhai also came out from the truck and reached to Shri Zala informed the person wearing in brown pent and identified himself as he was from the A.C.B. and the person was caught who accepted illegal gratification. On an inquiry, name of the person was found that he was Ranjitsinh Shivubha Zalamar and other persons standing to this witness were accused No. 2 Gafarbhai Hasamkhan Pathan, accused No. 3 Suryakant Fulshankar Joshi and accused No. 4 Mahammadbhai Bapubhai Khokher. All of them were accepting entry fees by standing on road. Accused No. 1 was praying that it was his mistake and hence he may be pardoned and thereafter, other persons namely Gafarbhai Hasamkhan Pathan, Suryakant Fulshankar Joshi ran away on their Rajdoot Motorcycle towards Bamanbore boundary and Mahammadbhai Bapubhai Khokher ran away on his red colour Bajaj motorcycle. They were chased by Shri Ganatra in a government vehicle and caught two persons namely Gafarbhai Hasamkhan Pathan and Suryakant Fulshankar Joshi. They were chased by Shri Ganatra in a government vehicle and caught two persons namely Gafarbhai Hasamkhan Pathan and Suryakant Fulshankar Joshi. Another person ran away from the scene of the offence namely Mahammadbhai Bapubhai Khokher and was not caught. This witness has different story from the other two witnesses. In his chief examination, he has not stated that an amount of Rs. 20/- was given to accused No. 1 nor any demand was made by him from the witness Shankarbhai. He has not stated even of recovery of the amount from his possession. He has also accepted that Mr. C.N. Zala was expired. In his cross examination he has also admitted that the complaint was given by Mr. C.N. Zala and charge-sheet was also filed by him after completing investigation, but on account of heart attack, he was expired before 4-5 years. 11. In a case reported in State of Kerala vs. C.P. Rao, (2011) 6 SCC 450 , it is held as under: “In coming to its conclusion, we are reminded of the well settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in order of acquittal has been very succinctly laid down by a Three-Judge bench of this Court in the case of Sanwat Singh and Others vs. State of Rajasthan, 1961 (3) SCR 120 . At page 129, Justice Subba Rao (as His Lordship then was) culled out the principles as follows:- 9. At page 129, Justice Subba Rao (as His Lordship then was) culled out the principles as follows:- 9. The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded, (2) the principles laid down in Sheo Swarup's Case 1934 L.R. 61 I.A. 398 afford a correct guide for the appellate court's approach to a case in disposing of such an appeal and (3) the different phraseology used in the judgments of this Court, such as (i) substantial and compelling reasons, (ii) good and sufficiently cogent reasons and (iii) strong reasons, are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those reasons in its judgment, which lead it to hold that the acquittal was not justified.” 12. In another case of Chandrappa vs. State of Karnataka, (2007) 4 SCC 415 in Para 42 has observed as under: From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, substantial and compelling reasons, good and sufficient grounds, very strong circumstances, distorted conclusions, glaring mistakes, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.” 13. In (2015) 10 SCC 152 Hon'ble Apex Court has observed in Para 22 and 23 as under: “22. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj (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. 23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d)(i) and (ii) of the Act and in absence thereof, unmistakably the charge therefor, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 or 13 of the Act would not entail his conviction thereunder.” 14. Having dealt with the principles of law laid down by the Hon'ble Apex Court would be required to kept in mind while considering the appeal against an order of acquittal passed by the learned Special Judge. This Court may not further proceed to examine the reasons recorded by the learned Special Judge for acquitting the accused and the present case. 15. After careful observations of the above mentioned facts and evidence on record in careful examination of the aforesaid rival legal contentions urged on behalf of the parties, with reference to extracted portions of the evidence of PW-1 to 3, this Court is of the considered view that the prosecution has failed to prove the demand and acceptance as well as the recovery of illegal gratification by the accused No. 4 from the Truck Driver Shankarbhai PW-2, upon whose evidence much reliance has been placed by the learned APP. Mere recovery of tainted money from the accused No. 1 is not sufficient to convict the accused No. 4, when the substantive evidence is in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused in absence of any evidence to prove the payment of bribe or to show the accused No. 4 voluntarily accepted money knowing it putting bribe. 16. The mere recovery by itself cannot prove the charge of the prosecution against the accused in absence of any evidence to prove the payment of bribe or to show the accused No. 4 voluntarily accepted money knowing it putting bribe. 16. In view of the aforesaid reasons, the approach of the learned Special Judge (F.T.C. No. 4), Morbi in the case cannot be said to be erroneous as learned Special Judge has rightly relied upon the evidence of the prosecution on the aspect of the demand of gratification from the complainant PW-2 Shankar Thakor. There is no substantive evidence in this regard and accused No. 4 was rightly acquitted for the charges framed against him. Prosecution has failed to prove the factum of the demand of bribe money made by the accused No. 4, from the PW-2. Complainant himself was passed away during the pendency of the trial, and therefore, he was not examined. Proving the factum of the demand through another witness in absence of the complainant cannot be based for conviction of accused. 17. For the foregoing reasons, this Court is of the view confirm the judgment and order of acquittal passed by learned Special Judge (F.T.C. No. 4), Morbi dated 30.08.2005 in Special A.C.B. Case No. 7 of 1997. Accordingly this appeal stands dismissed. Notice is discharged.