JUDGMENT : A.Y. KOGJE, J. 1. This appeal is preferred by the State under Section 378(1)(3) of the Code of Criminal Procedure against the judgment and order dated 19.07.2006 passed by the Additional Sessions Judge and Presiding Officer, Fast Track Court No. 4, Nadiad in Session Case No. 10 of 2004. By the aforesaid judgment and order, the respondent-accused has been acquitted of the charges for offense under Sections 7, 13(1)(d)(1)(2)(3) and 13(2) of the Prevention of Corruption Act. 2. The offense was registered being C.R. No. 13 of 2003 with Nadiad ACB Police Station on 18.10.2003 with an allegation that the respondent who was discharging his duty as a Jailer in the District Jail, Nadiad being a public servant had demanded a bribe for release of the relatives of the complainant, who were detained in PASA and ordered by this Court to be released. In this connection, charge-sheet was filed on 09.04.2004. 3. It is the case of the State that sufficient evidence was established on record to meet with the ingredients of sections for which the respondent was charged, still the Special Court has committed an error in acquitting the respondent-accused. 4. Learned Additional Public Prosecutor submitted that the Special Court has not taken into consideration the evidence of member of the raiding party, who had deposed that when he was present alongwith the raiding party, he had witnessed a conversation between the complainant and the respondent before handing over the tainted currency notes. 5. It is submitted that the Court has not taken into consideration the evidence of PW-2 Jaswantbhai Mafabhai Chunara who has deposed that the recovery of tainted notes was made from the respondent-accused and therefore, the recovery was also established though this witness as well as the Panchnama. 5.1 It is submitted that once the panchnama is established, the panchanama thus recorded each and every step during the course of running panchnama and it also demonstrate how the tainted notes were produced with the Investigating Agency were smeared with phenolphthalein powder and in the exact manner in which the complainant was explained to behave in front of the accused. This witness has deposed that the complainant had conducted himself in exactly the same manner and thereafter, when the notes were recovered from the accused, the same matched with the currency notes, which were mentioned in the panchnama and the traces of phenolphthalein powder were also found and therefore, the trap was successful in all aspects and there was no scope of holding otherwise. 5.2 Learned Additional Public Prosecutor submitted that the Special Court has not appreciated the evidence of PW-4 complainant in a correct perspective, as this witness has clearly deposed about the demand of illegal gratification of Rs. 2,000/- from him for the purpose of facilitating the release of his cousin brother after the order of the High Court. It is submitted that evidences of this witnesses aforementioned are sufficient to establish the offense against the respondent. Not only that the panchnama as well as the FSL reports corroborates and supports the case of the prosecution against the respondent, which has not been taken into consideration. 6. As against this, learned advocate Mr. Y.M. Thakkar appearing for the respondent-accused submitted that the judgment and order is a well reasoned order and in correct appreciation of the evidence which has come on record. It is submitted that the entire trap as well as the investigation is under the cloud on suspicion only on the ground that by the time, the offense was reported and FIR was filed even before that on the basis of the evidence of the prosecution itself, the panch witnesses were summoned and were explained about the raid. This conduct of the Investigating Officer is indicative of predetermined mind to target the respondent-accused. It is submitted that the prosecution has filed to establish that there was a illegal demand, as even according to the complainant, in his deposition, has stated that he had communicated telephonically at the jail at Nadiad, but does not state as to with whom this witness had had a conversion and who has actually made the demand of Rs. 5,000/-. It is submitted that in absence of the fact of demand being established beyond reasonable doubt, the trial Court was justified in recording the evidence. 7. Heard learned advocates for the parties and perused the documents placed on record. 5,000/-. It is submitted that in absence of the fact of demand being established beyond reasonable doubt, the trial Court was justified in recording the evidence. 7. Heard learned advocates for the parties and perused the documents placed on record. It is a case where vide Exh.6, charge was framed against the respondent-accused, gist of which is that on 18.10.2003, the accused was performing duties as Jailer at District Jail, Nadiad and the accused was receiving lawful remuneration (salary) as a Government employee from the Government. Bharatbhai Lodhari, who is son of the maternal aunt of the complainant Sureshbhai Keshavbhai Khorava, resident of Kharawad, Vandri chawk, opposite to Sagar Bhavan, Porbandar, was kept in the District Jail, Nadiad in the case of PASA. Therefore, writ petition was filed before the High Court of Gujarat, at Ahmedabad to release Bharatbhai from jail. The High Court of Gujarat, at Ahmedabad passed order to release the accused Bharatbhai and the said order was handed-over to the complainant. Since the complainant knew the accused, he contacted the accused through telephone from Ahmedabad. The accused informed him to bring the amount of Rs. 5000/- if Bharatbhai is to be released. The complainant requested and therefore, the amount of Rs. 2000/- was fixed. The accused informed the complainant to bring the envelope containing order and the amount of Rs. 2000/- to his residential quarters. Thereafter, the complainant lodged complaint at the head office of Anti Corruption Bureau, Ahmedabad. On the basis of the complaint of the complainant, Mr. M.M. Patel, Police Inspector of Ahmedabad field, along with the panch witnesses, set a trap of bribe, at the residential quarters of the accused at Nadiad. The accused talked with the complainant about the envelope containing order and in presence of panch witness no. 1 Shakjibhai Nathabhai Shingada, demanded additional financial benefit (bribe) of Rs.2000/- in addition to the lawful remuneration received from the Government. On 18.10.2003, at 07:25 hours, the accused was caught with the notes of muddamal laced with phenolphthalein powder at the residential quarters of the accused and misused his authority and thus committed offence punishable under Section 7, 13, (1) (D), 1, 2, 3 and 13(2) of the Prevention of Corruption Act. 8. PW-4 Sureshbhai Keshavbhai was examined at Exh.27 is the complainant. 8. PW-4 Sureshbhai Keshavbhai was examined at Exh.27 is the complainant. In his deposition, he has deposed that he received the ‘Bida’ (Writ Packet) from his advocate of High Court on 17.10.2003 which was to be served at Nadiad Jail and therefore, this witness made a phone call to jail, informing the jail authority that not to put his brother in barrack and at that time, he was informed that if he wants his brother to be released immediately, he must bring Rs. 5,000/-. He has further deposed that as he could not make arrangement for money, he once again called at 7:30 in the evening and he was informed that if he is not able to make arrangement for money, then to come the next day. He has deposed that at that time an amount of Rs. 2,000/- was fixed. 8.1 He has thereafter deposed that with the help of his friend in Ahmedabad, he could make arrangement of the money and somehow how he got the address of one Patel Saheb and he went to his office, where the said Patel Saheb made some writings and took his signature in complaint. He handed over the money to the said Patel Saheb. This witness has thereafter proceeded to narrate the manner in which the procedure was undertaken for laying down the trap and the manner in which the panch witness had accompanied him and the manner in which he met the accused person and handed over the tainted money. 9. However, this witness being an important witness, insofar as establishing the demand is concerned, it would be appropriate to refer to the part of the evidence in chief, wherein in para-7 he has indicated that after receiving the ‘writ packet’ of the High Court and mention made regarding telephonic conversion at Nadiad, he has categorically stated that the person who called up from Ahmedabad was one Mr. Shukla who was working at Bilodara Jail and it is this Mr. Shukla who informed the respondent-accsue that an amount of Rs. 2,000/- is settled for taking the work. This witness has introduced Shri Shukla was known to him as he was frequently visiting Nadiad Jail, where he had met Mr. Shukla. It is pertinent to observe that even from the evidence of this very important witness, there was no talk of demand even telephonically between the respondent-accused and this witness. 2,000/- is settled for taking the work. This witness has introduced Shri Shukla was known to him as he was frequently visiting Nadiad Jail, where he had met Mr. Shukla. It is pertinent to observe that even from the evidence of this very important witness, there was no talk of demand even telephonically between the respondent-accused and this witness. It appears that all the arrangement for making payment was informed to this witness by Mr. Shukla. This Mr. Shukla has not been cited as a witness nor his evidence is on record. Therefore, the issue of demand cannot be said to have been established. 10. This Court finds that story of this witness is also not believable on account of the fact that according to this witness, he had gone to meet Chauhan (respondent-accused) at his residence and informed him about the ‘Bida’ and the money and it is at that stage, the money was accepted and the raiding party arrived to apprehend the respondent-accused. However, on record, is a document which is a covering letter by one Jitubhai Laljibhai of Porbandar dated 18.10.2003, addressed to the Jail Superintendent of Nadiad Jail. Under this communication, the ‘Bida’ (Writ Packet) of release of Bharat @ Bodo was inwarded by the Nadiad Jail. For inwarding this communication, counter sign is made on this document which is dated 18.10.2003 at 10:35. Therefore, if the ‘Bida’ was in possession of the complainant himself, then the official documents of the jail report indicate something else and therefore, the version of this witness is not believable. These documents are placed at page Nos. 325 to 331. With regard to the selection of panch witnesses, it would be appropriate to refer to PW-1-Shakjibhai Nathabhai Exh.10, who was the panch witness accompanying the complainant. If his deposition is perused, he has indicated that on 17.10.2003 at around 5:00, Police Inspector of ACB one Mr. Jani had visited the office of Deputy Municipal Commissioner of Ahmedabad and upon the instruction of the Deputy Municipal Commissioner, this witness and the another witness Jashwantbhai Chunara were summoned. It would be appropriate to point out that the categoric time mention is 5:00 p.m. in the evening. Jani had visited the office of Deputy Municipal Commissioner of Ahmedabad and upon the instruction of the Deputy Municipal Commissioner, this witness and the another witness Jashwantbhai Chunara were summoned. It would be appropriate to point out that the categoric time mention is 5:00 p.m. in the evening. This version if compared with the version of PW-4 complainant, it would be evident that at least before 7:30 nothing was decided as PW-4 has deposed that it was only at 7:30 p.m. an amount of Rs. 2,000/- was decided for the work and therefore, the selection of panch witnesses at 5:00 p.m. does not justify the action of the Investigating Agency. 11. If the evidence of the Investigating Officer himself is taken into consideration, PW-6 Mahendrabhai Maganbhai Patel Exh.33 he has referred to a communication from the office of the Joint Director of ACB dated 17.10.2003 at Exh.34 and in this connection he has referred that in the evening on 17.10.2003, he had received the aforesaid Exh.34 communication. This version also does not explain the chronology of event which even as per the complainant began only in the evening after 7:00 o’clcok when he received the ‘Bida’ from the High Court advocate. 12. It would also be appropriate to refer to Exh.16-FIR dated 18.10.2003, wherein PW-4 has sated that upon receiving “Bida’ in the evening he made a phone call to from STD to Nadiad Jail and had conversation with City Jailer Shri Chauhan Suresh whom he had known previously because of his visit to Nadiad jail to meet his cousin brother. This version is completely contradictory to what this witness has deposed in his deposition at Exh.27. The Court finds that these are the major inconsistencies in the prosecution and the prosecution has failed to establish demand of illegal gratification and not only that but the entire process of setting up of the trap is also under the cloud as indicated in the preceding paras. It has come on record that the Investigating Officer initiated the proceedings for selection of the panch even before the complainant had reported about any demand made by the respondent-accused. 13. The Court has taken into consideration the reasons assigned by the Special Court, wherein the Special Court has found that the complaint is of dated 18.1.2003 and arrangement of panchas have been made by yadi of Exh.14 before the complaint. 13. The Court has taken into consideration the reasons assigned by the Special Court, wherein the Special Court has found that the complaint is of dated 18.1.2003 and arrangement of panchas have been made by yadi of Exh.14 before the complaint. Therefore, the complaint of Exh.16 raises doubt. The PW-6 Mahendrakumar Maganbhai Patel has been examined for the same vide Exh.33, who recorded the complaint of the complainant and arranged for the trap and raided. He is active member of the raid. He states in his examination-in-chief that ‘he was serving as P.I. in Anti Corruption Bureau, Ahmedabad City. At that time, on 17.1.2003 in the evening, he received written instruction from the Joint Director, ACB, Gujarat State, Ahmedabad to hear the complainant Suresh Keshavlal Kharvani over his complaint and as the arrangement to give the amount of bribe was yet to be made, he was instructed to come at office after making arrangement at the night time i.e. in the early morning on 18th. He sent the yadi dated 17.10.2003, addressing to the Deputy Municipal Commissioner to keep the panchas present on 18.10.2003 and the panchas person came to his office on 18.10.2003 at 02.00 a.m. and at that time, the complaint of the complainant was recorded.’ Considering the said testimony, the complaint of the complainant was recorded on 18.10.2003, whereas, there is no mention anywhere in the complaint, panchnama or any other place that the complaint of the complainant was heard by him on 17.10.2003. 14. Moreover, as stated above, pursuant to the letter of Exh.34, on the basis of the complaint of the complainant, he was instructed to arrange the trap within short time-limit and to take action. Looking to the same, the complaint dated 17.10.2003 is not brought on the record by the prosecution. In these circumstances, the doubt is raised about the aforesaid evidence of the witness. Raiding Party Officer and Witness No. 6, under whose leadership, the trap was arranged, if his evidence is credible, it does not require corroboration. But as discussed above in this case, the date of the complaint of the complainant is 18.10.2003 and the yadi vide Exh.14 was issued to call for the panchas on 17.10.2003. Wherein, it was instructed to take action on the basis of the complaint of the complainant as discussed in Letter dated 17.10.2003. But as discussed above in this case, the date of the complaint of the complainant is 18.10.2003 and the yadi vide Exh.14 was issued to call for the panchas on 17.10.2003. Wherein, it was instructed to take action on the basis of the complaint of the complainant as discussed in Letter dated 17.10.2003. The same has not been brought on the record by the prosecution. 15. Though an attempt was made on behalf of learned APP by relying upon the decision of Apex Court in case of Neeraj Dutta vs. State (Govt. of NCT of Delhi), AIR 2023 SCC 330 to submit that even if the demand is not proved, other circumstances like acceptance of the offer made by the bribe giver, would not require to establish the prior demand. However, as discussed above, there being several infirmities in the case of the prosecution over and above aspect of demand, the Court is not to incline to accept the Appeal against the acquittal. 16. The reliance placed by learned APP in case of Neeraj Dutta (supra) regarding the demand not being essential requirement in presence of other circumstances, it is pertinent to note that the Constitution Bench of Apex Court had answered the reference. Thereafter the Division Bench of Apex Court in the facts of the very case, has examined in the light of the observation in the reference answered. The Apex Court then decided separately in case of Neeraj Dutta vs. State (Govt. of NCT of Delhi), 2023 AIJEL-SC 70625. In Para-12, it is held as under: “12. In the case of N. Vijayakumar (supra), another bench of three Hon’ble Judges dealt with the issue of presumption under Section 20 and the degree of proof required to establish the offences punishable under Section 7 and clauses (i) and (ii) Section 13(1)(d) read with Section 13(2) of PC Act. In paragraph 26, the bench held thus: “26. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in C.M. Girish Babu vs. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1 and B. Jayaraj vs. State of A.P. (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543. Reference can be made to the judgments of this Court in C.M. Girish Babu vs. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1 and B. Jayaraj vs. State of A.P. (2014) 13 SCC 55 : (2014) 5 SCC (Cri) 543. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that the accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court.” (Emphasis added) Thus, the demand for gratification and its acceptance must be proved beyond a reasonable doubt.” 17. The context relevant for the facts of this case from the judgment of Reference is also explained in Para-14 of the aforesaid judgment, which reads as under: “14. The allegation of demand of gratification and acceptance made by a public servant has to be established beyond a reasonable doubt. The decision of the Constitution Bench does not dilute this elementary requirement of proof beyond a reasonable doubt. The Constitution Bench was dealing with the issue of the modes by which the demand can be proved. The Constitution Bench has laid down that the proof need not be only by direct oral or documentary evidence, but it can be by way of other evidence including circumstantial evidence. When reliance is placed on circumstantial evidence to prove the demand for gratification, the prosecution must establish each and every circumstance from which the prosecution wants the Court to draw a conclusion of guilt. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. The facts so established must be consistent with only one hypothesis that there was a demand made for gratification by the accused. Therefore, in this case, we will have to examine whether there is any direct evidence of demand. If we come to a conclusion that there is no direct evidence of demand, this Court will have to consider whether there is any circumstantial evidence to prove the demand.” 18. The Court may also draw strength from the decision of the Apex Court in case of Rajesh Prasad vs. State of Bihar and Another, (2022) 3 SCC 471 , wherein the Apex Court has examined the case law with regard to the power of the High Court to overturned the decision of the Sessions Court where an another view is possible. Examining the case including that of Chandrappa and Others vs. State of Karnataka, (2007) 4 SCC 415 , the Apex Court has culled out the general principles regarding the powers of the Appellate Court while dealing with the appeal against the order of acquittal. The Apex Court has held that the appellate court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. However, the appellate court has to keep in mind that in case of an acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence, and thereafter, upon securing of acquittal, the presumption is further reinforced, reaffirmed and strengthened, and therefore, whenever there are two reasonable conclusions are possible on the basis of the evidence on record, ordinarily, the Apex Court would not disturb the findings of acquittal recorded by the Trial court. 19. Considering the overall evidence of prosecution and the reasons assigned by the Sessions Court in rejecting such evidence, the Court does not find any reason to interfere with the impugned judgment and order. 20. In the result, the appeal fails and is dismissed. The judgment and order dated 19.07.2006 passed by the Additional Sessions Judge and Presiding Officer, Fast Track Court No. 4, Nadiad in Session Case No. 10 of 2004 stands confirmed stands confirmed. Bail and bail bonds of the accused, if any, stands discharged. R&P be sent back to the concerned Trial Court, forthwith.