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Gujarat High Court · body

2023 DIGILAW 762 (GUJ)

State Of Gujarat v. Mangubhai Ranchhodbhai Baria

2023-06-16

DIVYESH A.JOSHI

body2023
JUDGMENT : 1. This is an appeal at the instance of the State of Gujarat under Section 378(1)(3) of the Criminal Procedure Code, 1973 (for short “the Code”) against the judgment and order of acquittal dated 11.07.2005 passed by the learned Special Judge (Fast Track Court No.3), Jamnagar in Special Case No.14 of 1992, whereby the learned trial judge acquitted the respondents-accused of the charges for the offence punishable under Sections 7, 12, 13(1)(D)(1)(2)(3) and 13(2) of the Prevention of Corruption Act, 1988 (for short “the Act”). 2. It is the case of the prosecution that the complainant-Police Inspector of ACB Jamnagar, namely, Shri B.K. Solanki lodged a complaint on 22.10.1992 stating that he received a secret information that on the Jamnagar Victoria Bridge at Jamnagar-Rajkot Highway, the police officials or the employees of the RTO Department were harassing the people by demanding illegal gratification in the form of money as a bribe from the vehicle owners passing through the road as a bribe. Therefore, a decoy trap was arranged by the complainant-Police Inspector as well as the other officials of the ACB, Jamnagar, and during the said trap, the accused persons were caught red handed by the members of the raiding party. Thereafter, on the strength of the said fact, FIR being C.R. No.17 of 1991 came to be lodged against the respondents-accused persons for the aforesaid offences. Pursuant to the registration of the said complaint and after completion of successful trap, the Investigating Agency has recorded statement of the witnesses concerned, drawn necessary Panchnamas and collected all the necessary documentary evidences for the purpose of establishing the guilt of the accused persons and after having found sufficient material against the respondents-accused persons, charge-sheet came to be filed in the court of the learned Special Judge, Jamnagar. After filing of the charge-sheet against the accused persons, they were summoned by the Special Judge and the accused pleaded not guilty. Hence, charges were framed against them and trial was commenced. In order to bring home charge levelled against the accused, the prosecution has examined seven witnesses and also produced thirteen documentary evidences before the learned Special Judge, more particularly, as described in paragraph-5 of the impugned judgment and order. 3. Hence, charges were framed against them and trial was commenced. In order to bring home charge levelled against the accused, the prosecution has examined seven witnesses and also produced thirteen documentary evidences before the learned Special Judge, more particularly, as described in paragraph-5 of the impugned judgment and order. 3. After completion of recording of evidence on the part of the prosecution, the Special Court put various incriminating circumstances appearing in the evidence to the respondents-accused so as to obtain explanation/answer as provided under Section 313 of the Code. In the further statement, the respondents-accused denied all the incriminating circumstances appearing against them as false and further stated that they are innocent and falsely dragged into the offence. After considering and appreciating the materials available on record, the learned Special Judge has passed the order of acquittal. Being aggrieved with the said order of acquittal, the State Government is here before this Court with the present appeal. 4. Mr. K.M. Antani, learned APP appearing for the State has submitted that the learned Special Judge has not appreciated the evidence available on record in true sense and proper perspective. The judgment and order passed by the learned Special Judge is contrary to the settled provisions of law and, therefore, the same is required to be quashed and set aside. Mr. Antani has further submitted that it is settled proposition of law that for the purpose of proving charge levelled against the accused, prosecution has to lead evidence beyond reasonable doubt. The prosecution has proved its case against the accused persons by leading cogent, convincing and reliable evidence. Despite the said fact, the learned Judge has not given due weightage to the said set of evidence. Learned APP Mr. Antani has submitted that the learned Special Judge has not appreciated the evidence available on record in its true spirit and proper perspective and passed order which is contrary to the settled proposition of law and, therefore, the same is required to be quashed and set aside. Learned APP Mr. Antani has submitted that the learned Special Judge has not appreciated the evidence available on record in its true spirit and proper perspective and passed order which is contrary to the settled proposition of law and, therefore, the same is required to be quashed and set aside. Learned APP has further submitted that it is settled proposition of law that for the purpose of proving the charge levelled against the accused, prosecution has to lead evidence to the effect that the charges levelled against the accused should be proved beyond reasonable shadow of doubt, and here in the case on hand, prosecution has proved its case beyond reasonable shadow of doubt, however, the said evidence was not properly considered and/or conveniently discarded by the learned Special Judge. Learned APP has also submitted that it is settled position of law that if any witness does not support the case of the prosecution and declare as hostile witness, and after obtaining permission from the Hon’ble Court, during the course of cross-examination, if any incriminating evidence is found out from the evidence of the said witness, the same can be considered as evidence against the accused and can be made base to convict the culprit. It is an admitted position of fact that the complainant and Panch No.2 have not supported the case of the prosecution and the trapping officer had not been examined by the prosecution. At the time of appreciating and considering the material available on record, the learned Judge has not given due weightage to the evidence available on record in true spirit and conveniently discarded the same, and by dosing so, the learned Judge has committed a grave error. Learned APP Mr. Antani has submitted that if the evidence of all the witnesses are to be seen in its entirety, then it appears that the prosecution has successfully established the charges levelled against the accused persons and all the ingredients of the offence under the provisions of the Corruption Act are proved. However, the same was not considered appropriately by the learned Special Judge, and by doing so, the learned Judge has committed grave error. 5. In support of his submissions, learned APP Mr. Antani has put reliance upon the Constitutional Bench judgment of the Hon’ble Apex Court in the case of Neeraj Dutta vs. State (Govt. However, the same was not considered appropriately by the learned Special Judge, and by doing so, the learned Judge has committed grave error. 5. In support of his submissions, learned APP Mr. Antani has put reliance upon the Constitutional Bench judgment of the Hon’ble Apex Court in the case of Neeraj Dutta vs. State (Govt. of NCT of Delhi), reported in 2022 SCC Online SC 1724. 6. It is empathetically submitted by learned APP Mr. Antani that if the ratio enunciated by the Hon’ble Apex Court in the above referred judgment is considered in its true sense, in that event, on the strength of the evidence of P.W. No.7 Mr. Nagar, the prosecution has successfully proved all the ingredients, i.e, demand, acceptance and recovery and, therefore, solely on the basis of deposition of Mr. Nagar, the impugned order of acquittal passed by the learned Trial Judge is required to be quashed and set aside. 7. In such circumstances, referred to above, Mr. Antani prays that the present appeal be allowed and the impugned judgment and order of acquittal be quashed and set aside. 8. On the other hand, learned advocate Mr. Pravin Gondaliya appearing for the respondents-original accused has vehemently submitted that it is settled proposition of law that in the corruption cases, demand, acceptance and recovery are the three major components which are required to be established by the prosecution by leading cogent, convincing, reliable and clinching evidence. Admittedly, in the case on hand, the evidence pertaining to demand and acceptance are not proved by the prosecution. It is submitted that for the purpose of proving the charge levelled against the accused, the basic ingredients like demand, acceptance and recovery are sine qua non in corruption cases. It is settled proposition of law that in the absence of any single component, as referred to above, the entire case of the prosecution would collapse. Learned advocate Mr. Gondaliya has submitted that admittedly, here in the case on hand, if the evidence of all the witnesses are to be read together in toto, in that event, it is clearly found out from the same that the prosecution has miserably failed to establish the charge of demand and acceptance. Learned advocate Mr. Learned advocate Mr. Gondaliya has submitted that admittedly, here in the case on hand, if the evidence of all the witnesses are to be read together in toto, in that event, it is clearly found out from the same that the prosecution has miserably failed to establish the charge of demand and acceptance. Learned advocate Mr. Gondaliya has further submitted that truck driver who was used as a punter is the main witness in the decoy trap and he is the best witness who can tell what had actually transpired at the time of commission of the offence and how demand was being made by the accused. Admittedly, the said witness has not supported the version given by the prosecution and declared hostile by the public prosecutor. Not only that, as per the case of the prosecution, the Panch No.1 was there in the truck along with the complainant and he was specifically instructed by the trapping officer to carefully listen the conversation took place between the accused and the complainant. However, from the evidence of the said Panch witness, it appears that he has not stated anything as regards what conversation actually took place between the accused and the complainant and is conspicuously silent about the same. On the contrary, from the evidence of the said witness, it is found out that after the arrival of the other members of the raiding party, the trapping officer caught hold the accused persons and at that point of time, he came to know that the trap has become successful. Learned advocate Mr. Gondaliya has also submitted that as per the evidence of Mr. Nagar, he was very much available in the truck along with Panch No.1 and the complainant, whereas from the deposition of the said Panch No.1, it is found that the officers of the ACB were not available at the spot at the time when the verbal conversation took place between the accused and the complainant. The said witness has categorically deposed that after the amount was handed over to the accused, the officers of the ACB came there and caught hold the accused. The depositions of both these witnesses are quite contrary to each other. As per the say of Mr. The said witness has categorically deposed that after the amount was handed over to the accused, the officers of the ACB came there and caught hold the accused. The depositions of both these witnesses are quite contrary to each other. As per the say of Mr. Nagar, he was very much available in the truck, whereas as per the deposition of Panch witness, the members of ACB were not available on the spot at that point of time. Mr. Gondaliya has submitted that the entire tap was arranged by Mr. Solanki on the basis of the secret information received about the demand of illegal gratification being made by the police officers from the vehicle owners passing through the area and on the strength of the registration of the complaint, pre and post panchnamas came to be prepared in the presence of the panchas and the value and effect of experiment of Anthracene powder is also brought to the notice of the panchas. The said panch witnesses are very much important witnesses, and on the basis of the deposition of the said witnesses, the contents of the Panchnamas can be proved, however, they have not supported the case of the prosecution and the Investigating Officer who had drawn the Panchnama was also not examined by the prosecution. The Panch No.1 has supported the case of the prosecution, but fairly conceded in the cross-examination that all the proceedings of preparing Panchnama have been made at the instance of the police officers and at the time of preparing Panchnama, both the Panchas were sitting outside of the room and after completion of necessary and requisite formalities, they were called in the room for the purpose of endorsing the documents (Panchnamas). They have only signed the documents which were prepared by the police officers, and in the absence of said evidence, the entire case of the prosecution is based upon the evidence of one Mr. Nagar, P.W. No.7. In his deposition, the said witness has described the entire sequence of events of incident in a great detail as to how the evidences were collected by the members of the raiding party and as to how the statements came to be recorded by the Investigating Officer. Mr. Nagar, P.W. No.7. In his deposition, the said witness has described the entire sequence of events of incident in a great detail as to how the evidences were collected by the members of the raiding party and as to how the statements came to be recorded by the Investigating Officer. Mr. Gondaliya, after reading the entire evidence available on record, has submitted that nowhere from the evidence of the witnesses of the prosecution, the ingredients of demand and acceptance are found out. Learned advocate Mr. Gondaliya has further submitted that if the evidence of the Panch witnesses are to be read together, then it is found out that the entire mandatory procedure with regard to drawing and preparing of Panchnama was being done and carried out by the police officers in the absence of the Panchas. At the time of preparing the Panchnama, Panchas were sitting outside of the room and the said fact is revealed from the evidence of the witnesses in a very crystal manner. The said set of evidence itself shows that just to show that particular work is being carried out by the office of the ACB, Jamnagar, a trap was arranged and the accused persons got implicated in the present case. If, at all, the member of the raiding party, who are the senior and seasoned officers of the ACB Office, Jamnagar are serious enough, in that event, they would have prepared and drawn the Panchnama in the presence of the Panchas. If the entire exercise is being carried out in the absence of the Panchas, then the evidentiary value of those set of evidence would become null and void, and in the absence of mandatory requirement of fulfillment of the proceedings of the currency notes smeared with the Anthracene powder would become futile. Learned advocate Mr. Gondaliya has further submitted that except the Police Sub-Inspector Mr. Nagar and Panch No.2, no other witness has supported the case of the prosecution. If the evidence of Mr. Learned advocate Mr. Gondaliya has further submitted that except the Police Sub-Inspector Mr. Nagar and Panch No.2, no other witness has supported the case of the prosecution. If the evidence of Mr. Nagar is to be read, in that event, it is found out that the said witness is in a position to describe the entire sequence of events of the incident in a great detail in the chief examination so far as the arrangement of trap is concerned, whereas in the cross-examination, the said witness has conveniently discarded the questions of the defense by stating that he could not be able to remember at this juncture, and by giving such answer, the said witness tried to evade the questions put to him. Learned advocate Mr. Gondaliya has further submitted that if the evidence of the said witness is to be read in toto, then nowhere in his deposition, the said witness has stated that he has heard the conversation between the truck driver and the accused persons about the demand of illegal gratification, and in the absence of any proof with regard to ‘demand’ and ‘acceptance’, the appellants-accused are required to be discharged from the charges of accusations levelled against them. 9. Learned advocate Mr. Gondaliya has further submitted that it is well settled law that reversal of acquittal is permissible only if the view of the Trial Court is not only erroneous but also unreasonable and perverse. An order of acquittal is to be interfered with only when there are compelling and substantial reasons for doing so. This is an acquittal appeal and after appreciating and considering all the materials available on record, the learned Special Judge thought it fit to pass order of acquittal. Mr. Gondaliya has further submitted that the view taken by the Trial Court was a possible view which was neither perverse nor unreasonable and in the facts and circumstances of the present case, ought not to have been reversed and the order of acquittal is required to be confirmed by this Court. 10. Mr. Gondaliya has further submitted that the amount of illegal gratification was not found from the possession of the accused No.2, and at the time of so called incident, as per the case of the prosecution, accused No.2 was not there along with the accused No.1. 10. Mr. Gondaliya has further submitted that the amount of illegal gratification was not found from the possession of the accused No.2, and at the time of so called incident, as per the case of the prosecution, accused No.2 was not there along with the accused No.1. The ingredients of demand, acceptance and recovery so far as accused No.2 are concerned, are clearly missing in the entire evidence of the prosecution, and in the absence of material ingredients, prosecution cannot be lodged. The sanctioning authority has approved the sanction to prosecute the accused persons. The defense has asked very pertinent questions to the sanctioning officer in the cross-examination that without application of mind, solely on the basis of the papers placed before him, he has approved the sanction and the said evidence could be one of the cause to pass an order of acquittal against the accused persons. At the relevant point of time, If the sanctioning authority would have applied its mind and have scrutinized the papers thoroughly, in that event, there are all chances that the authority could not have granted sanction to initiate proceedings against the accused No.2. 11. Learned advocate Mr. Gondaliya has put reliance upon the judgment in the case of Jagtar Singh vs. State of Punjab, reported in 2023 LiveLaw (SC) 232 and submitted that the Division Bench of the Apex Court has considered the principles as enumerated by the Constitution Bench of the Hon’ble Apex Court in the case of Neeraj Dutta (supra) and passed the judgment, setting aside the order of conviction and converted the same into acquittal. Here in the present case, the facts are far better than the facts of the said case. In the case on hand, the complainant and the Panch No.2 have not supported the case of the prosecution and they have been declared hostile by the prosecution. Not only that, thereafter, after obtaining permission from the court, the Public Prosecutor has cross-examined the said witnesses. If the evidence of the said witnesses are to be seen in toto, then also it appears that the prosecution has miserably failed to establish the case against the accused persons. Not only that the officer of the raiding party, i.e. the trapping officer Mr. If the evidence of the said witnesses are to be seen in toto, then also it appears that the prosecution has miserably failed to establish the case against the accused persons. Not only that the officer of the raiding party, i.e. the trapping officer Mr. Solanki who had carried out all the modes of operations of the requisite requirement of the demonstration of the Panchnamas, had not been examined by the prosecution. The contents of the Panchnama have not been proved by the evidence of the said witness. Secondly, at the time of drawing of Panchnama, the presence of the Panchas is very much necessary and the contents of the Panchnamas are required to be recorded at the instance of the Panchas. However, here in the present case, the situation is diametrically different that both the complainant and the Panch No.2 have not supported the case of the prosecution and Panch No.1 deposed in a very categorically terms that they were kept outside of the room when Panchnamas were prepared. Admittedly, on the strength of the said set of evidence, it is found out that Panchnamas have been written by the trapping officer (raiding officer) and the signatures of the Panchas have been obtained on the written Panchnamas subsequently. It is settled proposition of law that the prosecution has to prove its case beyond reasonable shadow of doubt by leading cogent, convincing and reliable evidence, whereas defense has to raise its defense on the basis of principle of preponderance of probability, and for the purpose of discharging the charge levelled against the accused, the accused would not have to enter into the witness box. Defense of the accused can be raised and developed by making cross-examination of the witness also. It is also submitted by learned advocate Mr. Gondaliya that for the purpose of establishing its case, prosecution has also examined the officer who has accorded sanction to prosecute the accused persons. If the evidence of the said witness is to be scrutinized in detail, in that event, it is found out that the said officer has accorded sanction to prosecute the accused without verifying the material placed before him and passed an order of sanction in a mechanical manner without proper application of mind. If the evidence of the said witness is to be scrutinized in detail, in that event, it is found out that the said officer has accorded sanction to prosecute the accused without verifying the material placed before him and passed an order of sanction in a mechanical manner without proper application of mind. Had he applied his mind properly on the compilation of papers, in that event, the sanctioning authority ought not to have granted sanction against the accused No.2 as there is no supporting sufficient material to constitute the charge of corruption, i.e, demand, acceptance and recovery. If he had applied its mind at the time of considering the documents available with him, then he would not have accorded sanction to prosecute the accused No.2 because as per the case of the prosecution, he was not caught red handed and neither he had demanded any illegal gratification nor anything was found from the custody of the said witness, which is evident from the evidence of the said witness. The learned Special Judge has also found laxity on the part of the sanctioning authority in the operative part of the order but have not given due weightage to the said set of evidence by stating that, at the most, it can be said that there is apparent error on the part of the sanctioning authority but due to the said error, benefit cannot be extended to the accused by acquitting them. It is settled position of law as held by the Hon’ble Apex Court in catena of decisions that at the time of according “sanction” against the accused in the corruption cases, the sanctioning authority has to go through each and every documents produced by the Investigating Machinery and after giving due weightage to the said set of evidence, sanctions can be accorded by assigning specific reasons. Without assigning any reasons, if any sanction is being given, in that event, it can be said that the said sanction is accorded in a mechanical manner without application of mind and without considering the documents available on record and solely on that ground, order of acquittal can be passed. 12. In such circumstances, referred to above, Mr. Gondaliya prays that the appeal may be dismissed and the order of acquittal may not be interfered with. 13. In rejoinder, learned APP Mr. 12. In such circumstances, referred to above, Mr. Gondaliya prays that the appeal may be dismissed and the order of acquittal may not be interfered with. 13. In rejoinder, learned APP Mr. Antani has submitted that the accused No.2 was very much available along with the accused No.1 at the place of occurrence, and as per the case of the prosecution, total four to five persons were standing on a road, and at that point of time, the accused No.2 instructed the accused No.1 to collect amount from the particular truck and he had gone to collect the amount from the other drivers of the truck. Thereafter, he left the place, and during the interregnum period, the trap was made and the accused No.1 was caught red handed by the members of the raiding party. Not only that, at the time of filing of charge-sheet against the accused persons, the Investigating Officer has levelled charges against the accused under Section 12 of the Prevention of Corruption Act and, therefore, it cannot be said that there was fault on the part of the sanctioning authority to accord sanction to initiate proceedings against the accused persons. 14. Having heard the learned counsel appearing for the parties and having gone through the material on record, the only question that falls for my consideration is whether the Trial Court committed any error in passing the impugned judgment and order of acquittal. 15. Before adverting to the rival submission, let me quote, with profit, certain dictum of law for the purpose of coming to an ultimate conclusion. 16. In the case of Chandrappa v. State of Karnataka, reported in (2007) 4 SCC 415 , the Hon’ble Apex Court laid down the following principles: “42. From the above decisions, in our considered view, the following general principles regarding powers of the 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 act and of law. 3. 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 act and of law. 3. Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “distorted conclusion”, “glaring mistakes”, etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasis 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 is 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.” 17. Similar principle has been laid down by the Hon’ble Supreme Court in the case of State of Uttar Pradesh v. Ram Veer Singh, reported in 2007 AIR SCW 5553, that while exercising the appellate power even if two reasonable conclusions are possible on the basis of evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the learned trial Court. 18. Further in the case of M.R.Purushotham v. State of Karnataka, reported in (2015) 3 SCC 247 , it has been held as under: “7. In such type of cases the prosecution has to prove that there was a demand and there was acceptance of illegal gratification by the accused. As already seen the complainant PW1 Ramesh did not support the prosecution case insofar as demand by the accused is concerned. No other evidence was adduced by the prosecution to prove the demand made by the accused with the complainant. As already seen the complainant PW1 Ramesh did not support the prosecution case insofar as demand by the accused is concerned. No other evidence was adduced by the prosecution to prove the demand made by the accused with the complainant. In this context the recent decision of a three Judge bench of this Court in B. Jayaraj vs. State of Andhra Pradesh reported in 2014(4) Scale 81 is relevant and it is held as follows : “8. In the present case, the complainant did not support the prosecution case in so far as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Exbt.P11) before LW- 9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW1 and the contents of Exhibit P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial Court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive in so far as the offence under Section 13(1)(d)(i)(ii) is concerned as 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 established.” 19. It is an undisputed fact that both, the learned APP as well as the learned advocate for the respondents have put reliance upon the latest judgment of the Constitutional Bench of the Hon’ble Apex Court in the case of Neeraj Dutta vs. State (Govt. It is an undisputed fact that both, the learned APP as well as the learned advocate for the respondents have put reliance upon the latest judgment of the Constitutional Bench of the Hon’ble Apex Court in the case of Neeraj Dutta vs. State (Govt. of NCT of Delhi), reported in (2022) SCC Online SC 1724. Therefore, for the purpose of deciding the basic controversy involved in the present appeal, let me quote the conclusion arrived at by the Constitutional Bench in the above referred judgment in paragraph-74, which reads thus; “74. What emerges from the aforesaid discussion is summarised as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13(1)(d) (i) and (ii) of the Act. (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1) (d)(i) and (ii) of the Act. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. This is an offence under Section 13(1) (d)(i) and (ii) of the Act. (iii) In both cases of (i) and (ii) above, the offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (i) and (ii) respectively of the Act. Therefore, under Section 7 of the Act, in order to bring home the offence, there must be an offer which emanates from the bribe giver which is accepted by the public servant which would make it an offence. Similarly, a prior demand by the public servant when accepted by the bribe giver and in turn there is a payment made which is received by the public servant, would be an offence of obtainment under Section 13(1)(d) and (i) and (ii) of the Act. (e) The presumption of fact with regard to the demand and acceptance or obtainment of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. On the basis of the material on record, the Court has the discretion to raise a presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused and in the absence of rebuttal presumption stands. (f) In the event of complaint turns ‘hostile’, or has died or is unavailable to let in his evidence during trial, demand of illegal gratification can be proved by letting in the evidence of any other witness who can again let in evidence, either orally or by documentary evidence or the presumption can prove the case by circumstantial evidence. The trial does not abate nor does it result in an order of acquittal of the accused public servant. The trial does not abate nor does it result in an order of acquittal of the accused public servant. (g) In so far as Section 7 of the Act is concerned, on the proof of the facts in issue, Section 20 mandates the court to raise a presumption that illegal gratification was for the purpose of a motive or reward as mentioned in the said Section. The said presumption has to be raised by the court as a legal presumption or a presumption in law. Of course, the said presumption is also subject to rebuttal. Section 20 does not apply to Section 13(1)(d) (i) and (ii) of the Act. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in point (e) as the former is a mandatory presumption while the latter is discretionary in nature.” 20. 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 v/s. State (Govt. of N.C.T. of Delhi) reported in 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 v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B.Jayaraj v. 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 v. CBI [C.M. Girish Babu v. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1] and in B. Jayaraj v. State of A.P. [B.Jayaraj v. 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 20 of 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.” 21. 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.” 22. In the said reference, the Hon’ble Apex Court has held that in the absence of evidence of the complainant (direct/primary, oral/documentary evidence), it is permissible to draw an inferential deduction of the culpability/guilt of public servant under Section 7 and Section 13(i)(d) read with Section 13(ii) of the Act based on other evidence adduced by the prosecution. 23. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. Therefore, when the complainant himself had disowned what he had stated in the complaint and there is no other evidence to prove that the accused had made any demand, the evidence of P.W. No.7 and the contents of the Panchnamas alleged to have been drawn in the absence of the panchas, cannot be relied upon to come to the conclusion that the above material furnishes proof of demand allegedly made by the accused. Thus, I am inclined to hold that the Trial Court was correct in holding the demand alleged to have been made by the accused as not proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Section 13(1)(d)(i)(ii) and (iii) is concerned as 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 established. 24. The above also will be conclusive insofar as the offence under Section 13(1)(d)(i)(ii) and (iii) is concerned as 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 established. 24. It is an admitted position of fact that in this appeal, learned APP Mr. Antani as well as learned advocate Mr. Gondaliya, both have empathetically put reliance on a decision in the case of Neeraj Dutta (supra). It is settled proposition of law that the presumption of fact with regard to demand and acceptance or obtainment of an illegal gratification may be made by Court of Law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in absence thereof, and on the basis of the material on record, the Court has the discretion to raise presumption of fact while considering whether the fact of demand has been proved by the prosecution or not. Of course, a presumption of fact is subject to rebuttal by the accused, and in the absence of rebuttal, presumption stands. Admittedly, here in the case on hand, to bring home the guilt of the accused, the prosecution has examined the complainant, Panch witnesses as well as the Investigating Officer. If depositions of all those witnesses are to be read together, in that event, prosecution has failed to lead direct oral evidence pertaining to demand and acceptance. The Panch No.1 who had supported the version of the prosecution upto certain extent but failed to lead evidence to the effect that he had heard the conversation took place between the complainant and the accused and also seen that the amount was being demanded by the accused and given by the complainant to the accused. Despite the fact that the said work was entrusted to him, he was specifically instructed by the Trapping Officer to carefully listen the conversation that had taken place between the complainant and the accused as also the transactions made between them. In short, the said witness has not supported the case of the prosecution so far as core issue of the case is concerned. In short, the said witness has not supported the case of the prosecution so far as core issue of the case is concerned. In absence of oral evidence on the part of the said witness, prosecution has to prove its case by examining the complainant as well as other witnesses who had seen the entire incident. The complainant has not supported the case of the prosecution and has declared as hostile witness, whereas as per the case of the prosecution no other witness was present at the time of occurrence. The Investigating Officer. Mr. Nagar has supported the case of the prosecution upto certain extent by stating in his deposition that he has caught the accused red handed immediately after occurrence of the incident but the said witness has also not narrated evidence to the effect that demand was made in his presence and he was also present at the time of acceptance of amount. The evidence of the said witness is quite contrary to the evidence of Panch No.1. 25. Insofar as presumption permissible to be drawn under Section 20 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offence under Sections 13(1)(d)(i) and (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act. Proof of acceptance of illegal gratification can follow only if there is proof of demand. As the same is lacking in the present case, the primary facts on the basis of which the legal presumption under Section 20 can be drawn are wholly absent. In view of the above and the contradictions noticed by me in the depositions of the key witnesses examined on behalf of the prosecution, I am of the view that the demand for and acceptance of bribe amount is not proved beyond reasonable doubt. Having regard to such evidence on record, the acquittal recorded by the Trial Court is a ‘possible view’ and as such the judgment of the trial court does not warrant any interference. 26. Having regard to such evidence on record, the acquittal recorded by the Trial Court is a ‘possible view’ and as such the judgment of the trial court does not warrant any interference. 26. It is a settled position of law as held in catena of decision by the Apex Court as well as the other High Courts that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. 27. So far as the evidence of the sanctioning authority who had granted the sanction is concerned, in State of Karnataka vs. Ameer Jan reported in (2007) 11 SCC 273 it is held as under; “The order of granting sanction must be demonstrative of the fact that there had been proper application of mind on the part of the sanctioning authority.” 28. In yet another decision in the case of Mohd. Iqbal Ahmed vs. State of Andhra Pradesh, reported in 1979 AIR 677, the Apex Court has held thus; “In the first place, there is no question of the presumption being available to the Sanctioning Authority because at that stage the occasion for drawing a presumption never arises since there is no case in the Court. Secondly, the presumption does not arise automatically but only on proof of certain circumstances, that is to say, where it is proved by evidence in the Court that the money said to have been paid to the accused was actually recovered from his possession. It is only then that the Court may presume the amount received would be deemed to be an illegal gratification. So far as the question of sanction is concerned this arises before the proceedings come to the Court and the question of drawing the presumption, therefore, does not arise at this stage.” 29. It is found out from the materials available on record that the prosecution has miserably failed to lead evidence to the effect that demand was being made by the accused from the driver-complainant. The evidence pertaining to demand of amount is conspicuously silent in the evidence of all the witnesses. It is found out from the materials available on record that the prosecution has miserably failed to lead evidence to the effect that demand was being made by the accused from the driver-complainant. The evidence pertaining to demand of amount is conspicuously silent in the evidence of all the witnesses. As per the ratio laid down by the Hon’ble Apex Court in the case of Neeraj Dutta (supra), “offer by the bribe giver and the demand by the public servant respectively have to be proved by the prosecution as a fact in issue”. It is also held that mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Section 13(1)(d), (I) and (ii) respectively of the Act. The presumption of fact with regard to the demand and acceptance of an illegal gratification may be made by a court of law by way of an inference only when the foundational facts have been proved by relevant oral and documentary evidence and not in the absence thereof. 30. It also appears that for the purpose of identification of the accused, they were produced before the court by the learned Public Prosecutor, however, the prosecution witnesses could not be able to identify the accused persons, and in the absence of any specific identification of the accused persons by the prosecution witnesses, the case of the prosecution would not sustain. 31. In view of the above reasons, I find that the prosecution has not been able to put forth positive, acceptable, cogent, consistent, convincing and satisfactory evidence, to establish the basic ingredients required to make out an offence under Sections 7, 12, 13(1((d)(i)(ii)(iii) and 13(ii) of the Act against the accused. Thus, when the offences alleged have not been proved by the prosecution beyond all reasonable doubt, benefit of doubt shall accrue in favour of the accused-appellants. Hence, I find that if the impugned judgment passed by the Trial Court is overruled, it would lead to a miscarriage of justice. 32. In the case of Allahrakha K. Mansuri vs. State of Gujarat, 2002(1) RCR (Criminal) 748, the Supreme Court has held that in cases of reversal of acquittal, where two views are possible, the view which favors the accused has to be adopted. 32. In the case of Allahrakha K. Mansuri vs. State of Gujarat, 2002(1) RCR (Criminal) 748, the Supreme Court has held that in cases of reversal of acquittal, where two views are possible, the view which favors the accused has to be adopted. Let me quote the relevant observations of the said judgment which reads as under; “The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.” 33. In view of the aforesaid discussion and the principles enunciated in the aforesaid decisions with regard to the scope of the High Court in deciding the acquittal appeals under Section 378 of the Code, I am of the opinion that no case is made out to interfere with the impugned judgment and order of acquittal. 34. For the foregoing reasons, this appeal fails and is hereby dismissed. The order of acquittal dated 11.07.2005 passed by the learned Special Judge (Fast Track Court No.3), Jamnagar in Special Case No.14 of 1992 is hereby confirmed. Record & Proceedings be sent to the concerned Trial Court.