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2024 DIGILAW 1105 (GUJ)

Pragjibhai Kadabhai Makwana v. State Of Gujarat

2024-05-03

S.V.PINTO

body2024
JUDGMENT : 1. This appeal has been filed by the appellant under Section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 10.05.2006 passed by the learned Special ACB Judge (Fast Track Court No.3), Jamnagar (herein after referred to as 'the learned trial Court') in Special (ACB) Case No. 08 of 1997, whereby, the learned trial Court has convicted the appellant for the offences punishable under Sections 7, 13(1)(d) read with 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the PC Act.”). The learned trial Court has sentenced the appellant to rigorous imprisonment of one year and fine of Rs.1000/- and in default simple imprisonment for one month for the offence punishable under Section 7 of the PC Act and rigorous imprisonment for two years and fine of Rs.1000/- and in default simple imprisonment for two months for the offence punishable under Sections 13(1)(d) and 13(2) of the PC Act. The learned trial Court was further pleased to order that sentences of the appellant to run concurrently. The appellant is hereinafter referred to as ‘the accused’ and he stood in the original case, for the sake of convenience, clarity and brevity. 2. The brief facts that emerge from the record of the case are as under:- 2.1 That the accused was working as a Maintenance Surveyor (Class-III) in the office of the City Survey Superintendent-I and was a public servant. The complainant Hanifbhai Moosabhai Makwana residing at Ganchi Vad, Jamnagar, was doing labour work and Moosabhai Ismailbhai- the father of the complainant Hanifbhai Moosabhai Makwana expired on 16.01.1997. That late Moosabhai Ismailbhai had one house which was numbered as City Survey No. 36/4/4 and the name of Hawabai wife of Moosabhai Ismailbhai Makwana was to be entered in the record of the house. That an application to enter the name was given and the applicant had met the accused but the accused had demanded an amount of Rs.400/- as illegal gratification for doing the work of entering the name of Hawabai- wife of Moosabhai Ismailbhai Makwana in the record and after negotiation, the amount was fixed at Rs.300/-. That at that time, the complainant Hanifbhai Moosabbhai Makwana had an amount of Rs.150/- with him, which was given to the accused and the remaining amount of Rs.150/- was to be paid on 09/12/1996. That at that time, the complainant Hanifbhai Moosabbhai Makwana had an amount of Rs.150/- with him, which was given to the accused and the remaining amount of Rs.150/- was to be paid on 09/12/1996. That the complainant Hanifbhai Moosabbhai Makwana did not want to pay the amount of illegal gratification of Rs.150/- and hence he went to the ACB Police Station, Jamnagar and had filed the complaint under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, which was registered I-C.R. No. 9 of 1996 on 09/12/1996. 2.2 The Trap Laying Officer called the panch witnesses and the demonstration of anthracene powder and ultraviolet lamp was carried out in the presence of the panch witnesses and the complainant and the characteristics of the anthracene powder and ultraviolet lamp were explained to them and the trap was arranged. That as the accused had stated that he would come to the house of the complainant, the tainted currency notes smeared with anthracene powder were placed in the right side pocket of the “Jabhbha” of the complainant and all the necessary instructions were given to the complainant and the shadow witness and the trap was arranged. That the complainant was instructed to go with the shadow witness to the City Survey Office and meet the accused and bring him to his house to record the statement of his mother and to give the tainted currency notes when demanded by him and accordingly the complainant and the shadow witness went to the City Survey Office and the complainant, shadow witness and the accused sat in an auto rickshaw and came to the house of the complainant. That the members of the raiding party followed them in the government vehicle and thereafter arranged themselves around the house. That the accused, the complainant and the shadow witness went into the house of the complainant and the mother of the complainant was seated and at that time the accused took the thumb impression of the mother of the complainant and demanded for the amount of illegal gratification Rs.150/-, which was given by the complainant. The predetermined signal was given and the members of the raiding party came and caught the accused red handed. The predetermined signal was given and the members of the raiding party came and caught the accused red handed. The Investigating Officer recorded the statements of the connected witnesses and drew the necessary panchnamas and after the order of sanction for prosecution was received, a charge sheet was filed before the learned Sessions Court, Jamnagar, which was registered as Special ACB Case No. 8 of 1997 2.3 That the accused was duly served with the summons from the learned trial Court and the accused appeared before the learned trial Court and after the due procedure of Section 207 of the Code of Criminal Procedure, 1973 was followed, a charge at Exh: 6 was framed against the accused and the statement of the accused was recorded at Exh: 7. The accused denied all contents of the charge and the evidence of the prosecution was taken on record. 2.4 The prosecution has examined six witnesses and has produced fourteen documentary evidences in support of their case and after the learned Additional Public Prosecutor filed the closing pursis at Exh; 35, the further statement of the accused under Section 313 of the Code of Criminal Procedure, 1973 was recorded. That after the arguments of the learned Additional Public Prosecutor and the learned advocate for the accused were heard, the learned trial Court, by the impugned judgment and order convicted the accused to rigorous imprisonment for one year and fine of Rs.1,000/- and in default simple imprisonment of one month for the offence punishable under Section 7 of the PC Act, and to rigorous imprisonment of two years and fine of Rs.2,000/- and in default simple imprisonment for two months for the offence punishable under Sections 13(1)(d) and 13 (2) of the PC Act. The learned trial Court was pleased to further order that both the sentences to run concurrently. 3. Being aggrieved and dissatisfied with the impugned judgment and order of conviction, the appellant has filed the present appeal mainly stating that the impugned judgment and order of the learned trial Court is erroneous on facts as well as on law and the learned trial Court has committed a serious error in not appreciating the evidence on record as per the settled principles of law and it has caused a failure of justice. That the learned trial Court has failed to appreciate that the prosecution has not proved the case by legal, reliable and unimpeachable evidence and has failed to appreciate that the defence of the accused has been probablized. The learned trial Court has merely drawn inferences against the defence and in favour of the prosecution and has committed a serious error in relying upon the complainant who is an accomplice and a person willing to give bribe. The learned trial Court has not considered that the shadow witness has not heard the conversation between the complainant and the accused and has not seen passing of the currency notes and the evidence of the panch witness is not corroborated by any evidence. That the accused has been falsely implicated and the sanction was not given after proper application of mind. That the learned trial Court has not considered that the demand, acceptance and the recovery are not proved by the evidence of independent panch witness and the evidence does not entail a conviction but the learned trial Court has alsely convicted the accused and hence the judgment and order of conviction must be set aside and the accused must be acquitted from all the offences. 4. Heard learned advocate Mr. Pradip Patel for learned advocate Mr. Atul N. Vyas for the appellate and learned Additional Public Prosecutor Ms. Krina Calla for the respondent-State. Perused the impugned judgment and order of conviction and re-appreciated the entire evidence on record of the case. 5. Learned advocate Mr. Pradip Patel for learned advocate Mr. Atul N. Vyas has taken this Court through the entire evidence of the prosecution and has submitted that the complainant has not supported the case of the prosecution in respect of demand, acceptance and recovery and has stated contrary facts on oath. That the prosecution has not confronted the complainant by declaring him hostile even though he has not supported the case of the prosecution and the proof of demand is an indispensable element and a pre-meeting mandate is essential in corruption case. That if the deposition of the complainant is perused, the most important element of demand is missing and hence it cannot be said that the prosecution has proved the case against the accused beyond reasonable doubt. That if the deposition of the complainant is perused, the most important element of demand is missing and hence it cannot be said that the prosecution has proved the case against the accused beyond reasonable doubt. In the absence of proof of demand, mere recovery of the tainted currency notes is not sufficient to convict the accused as per the settled principles of law and hence the view taken by the learned trial Court is not just and proper and calls for interference by this Hon’ble Court. That in a conviction appeal, if the findings of the trial Court are perverse and illegal, the appellate Court must interfere and the learned trial Court has erred in holding that the sanction was given by the competent authority after application of mind when the same is not proved. That in fact, as per the complainant the initial amount of Rs.150/- was given on 06.12.1996 in the presence of Inayatbhai Sadiqbhai Maniar but the said Inayatbhai Sadiqbhai Maniar has not been examined before the learned trial Court. That even in the order of sanction for prosecution, the date mentioned in the preamble of the order is not correct and when there is no evidence of demand, the conviction under the PC Act cannot be sustained. That the impugned judgment and order of conviction is perverse and illegal and the appeal must be allowed and the appellant must be acquitted from all the offences. 5.1 Learned advocate Mr. Pradip Patel with learned advocate Mr. Atul N. Vyas has relied on the judgment passed by the Apex Court in the case of Neeraj Dutta Vs. State (Govt. of N.C.T. of Delhi) reported in (2022) 0 Supreme (SC) 1248, wherein the Apex Court has observed in Para No. 68 as under:- “68. What emerges from the aforesaid discussion is summarized 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. (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 inturn 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. Similarly, a prior demand by the public servant when accepted by the bribe giver and inturn 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 the complainant 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 prosecution 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. (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 the 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.” 5.2 Learned APP Ms. 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.” 5.2 Learned APP Ms. Krina P. Calla for the respondent – State has opposed the present appeal and has submitted that the learned Trial Court has appreciated all the evidence in proper perspective and has rightly convicted the accused and the impugned judgment and order does not suffer from any infirmities. That the learned Trial Court has rightly convicted the accused and hence, the present appeal may be dismissed. 6. Before appreciating the evidence produced by the prosecution on record before the learned Trial Court, it is necessary to reiterate the cardinal principles of jurisprudence as settled by the Apex Court in a catena of decision and the first cardinal principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot take any benefit of the weakness of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent until he is proved guilty by the evidence adduced by the prosecution on record beyond reasonable doubts and the third cardinal principle is that the onus of burden never shifts from the prosecution. 7. As per the settled principles of law in conviction appeals, when the appellate Court finds that the findings of fact was based on a wholesome erroneous approach and the very basis of reasoning was not in the right perspective and the intrinsic merit of the evidence of the witness was not considered and the trial was perversely disposed of permitting manifest errors and glaring infirmities the Appellate Court can interfere and to exercise the powers in a conviction appeal a finding on merits after considering and meticulously dissecting the evidence on record is imperative. As far as the conviction under the P.C. Act is concerned, it is settled by the Apex Court that the prosecution has to prove the case beyond reasonable doubts and proof of demand is a sine qua non for an offence under the P.C. Act. As far as the conviction under the P.C. Act is concerned, it is settled by the Apex Court that the prosecution has to prove the case beyond reasonable doubts and proof of demand is a sine qua non for an offence under the P.C. Act. That only if the demand is proved with cogent and convincing evidence, the prosecution would benefit by the presumption under Section 20 of the P.C.Act and the conviction would be sustained. 7.1 To bring home the charge against the accused, the prosecution has examined the Prosecution Witness No.1 Hanifbhai Moosabhai Makwana at Exh: 10 and the witness is the complainant, who has stated that he had gone to the City Survey Office for taking out the necessary documents for the house of his grandfather situated in Ghanchi Vad bearing survey No. 285. That on 09/12/1996, he had gone to the City Survey Office in the morning, which was situated in the Darbargadh Circle with Inayatbhai Mohammed Siddique Maniar and at that time, Mamoodbhai, Yusufbhai Baloch and the peon and others were present along with the accused. That he he had met the accused and Inayatbhai Mohammed Siddique Maniar had spoken to the accused about the entry to be made in City Survey No. 36/4/4. That the house was in the name of his father Moosabhai Ismailbhai Maniar and as his father had passed away, the name of his mother and other brothers were to be entered as legal heirs and the accused had told him to get an application drafted by an advocate. That he had the application which was prepared on 03/10/1994, which was given to the accused and the accused told him that the application is proper and demanded an amount of Rs.400/-. That Inayatbhai Mohammed Siddique Maniar had decided that Rs.300/- will be paid and at that time, the complainant had only Rs.150/- in his pocket and the accused told him to give the amount and said that the remaining amount of Rs.150/- would be paid when he would come to the house to take the signature of his mother. That the accused had told to come in the evening to pick him and he would go to his house to get the signature of his mother. That he and Inayatbhai Mohammed Siddique Maniar left the office and Inayatbhai Mohammed Siddique Maniar asked him to go to the anti-corruption office. That the accused had told to come in the evening to pick him and he would go to his house to get the signature of his mother. That he and Inayatbhai Mohammed Siddique Maniar left the office and Inayatbhai Mohammed Siddique Maniar asked him to go to the anti-corruption office. Thereafter, the complainant and Inayatbhai Mohammed Siddique Maniar went to the office of ACB and met Police Inspector Mr.B.B.Jadeja, who took down the complainant and Police Inspector Mr. B.B.Jadeja gave him three currency notes of the denomination of Rs.50/- each and besides the complainant Inayatbhai Mohammed Siddique Maniar and the Police Officials, there were no other persons present. That Mr. B.B.Jadeja took some powder from the cupboard and smeared them on the notes and then showed the notes in different kind of lights and light pink purple color was seen on the currency notes. That the currency notes were placed in right side pocket of “Jabbha” and he was instructed by Police Inspector Mr. B.B.Jadeja that he and Inayatbhai Maniar were went to go to the City Survey Office. That when they went, the accused was not present and thereafter the accused came after some time and the accused took the stampad and they went in a rickshaw to his house at Sodhawadi. That the members of raiding party had reached before he had reached and he and the accused went into the house and his mother was sitting and the accused took a paper from an envelope and took the thumb impression of his mother. That thereafter, the accused told the complainant that they should leave and the complainant told the accused to reduce the amount of Rs.150/- and this conversation had taken place just outside of the house. That he took the currency notes of Rs.150/- and gave them to the accused and these currency notes were given by the Police Inspector Mr.B.B.Jadeja to him. That the accused placed the notes in the left-side shirt pocket and at that time the members of the raiding party came and took the accused and him inside of the house and the tainted currency were found from the left side shirt pocket of the accused. The complainant has not identified the currency notes before the learned trial Court. That the accused placed the notes in the left-side shirt pocket and at that time the members of the raiding party came and took the accused and him inside of the house and the tainted currency were found from the left side shirt pocket of the accused. The complainant has not identified the currency notes before the learned trial Court. During the cross examination by the learned advocate for accused for the accused, the complainant has stated that Mamoodbhai, the uncle of Inayatbhai Maniar was working with the accused and when they went to the office, Mamoodbhai Yusufbhai Baloch, the peon and others were present. That when he went to the ACB office, Inayatbhai, Police Inspector Mr. B.B.Jadeja and other Police Officials were present and besides that no other person was present. 7.2 The prosecution examined prosecution witness No. 2 Harshalbhai Navnit Dave at Exh: 11 and this witness is the shadow witness, who had accompanied the complainant on 09/12/1996, the day on which the trap was arranged. The witness has narrated all the facts that had taken place when he was called along with other panch witness Premjibhai Nanjibhai Parmar and the witness has stated that the complainant Hanifbhai Moosabhai Makwana had given the Police Inspector Mr. B.B.Jadeja, three currency notes of the denomination of Rs.50/- each on which Mr. B.B.Jadeja had applied the anthracene powder. The witness has fully supported the case of the prosecution and has stated that when they went to the house of the complainant, the mother of the complainant was sitting inside and they went inside and the thumb impression of the mother of the complainant was taken on a paper by the accused. Thereafter, the accused asked the complainant to call for a witness and the complainant went outside and called Hasanbhai, who came in and affixed his signature on some papers as per the instructions of the accused. That thereafter the complainant gave the accused Rs.150/-, which was taken from his right side “Jabbha” pocket and given with his right hand to the accused, who took it with his right hand and placed it in his left side shirt pocket after counting. That thereafter the complainant gave the accused Rs.150/-, which was taken from his right side “Jabbha” pocket and given with his right hand to the accused, who took it with his right hand and placed it in his left side shirt pocket after counting. That the complainant came outside and gave the predetermined signal and the members of the raiding party came and took the accused in the inside room and he was instructed to recover the amount from the left side shirt pocket of the accused. During the cross examination, the witness has stated that he was a government employee and his superior officer Mr. Gondaliya had not given any written instructions to go to ACB office. That, he and other panch were in the office of his superior officer Mr. Gondaliya for 4-5 minutes but they did not ask the superior officer as to why they were instructed to go to the ACB office. That other panch had told him that they had to go to the ACB office and after 15-20 minutes they had left for the ACB office but no report that they were leaving the office was placed by them. 7.3 The prosecution has examined prosecution witness No. 3 Alatfahusen Munavvarhusen Saiyed at Exh: 15 and the witness is the competent authority, who had given the order of sanction for prosecution, which is produced at Exh:16. This witness had also produced the promotion order of the accused at Exh: 17 and the appointment letter of the accused and has stated that the Superintendent Land Records, Rajkot Circle, is the competent authority to appoint the accused. During the cross examination by the learned advocate for the accused, the witness has admitted that in the order of sanction for prosecution, crime register number is written as 09/1996/554 dated 15/03/1996, which is a mistake and it should be 15/03/1997. 7.4 The prosecution examined prosecution witness No. 4 Chhaganlal Vejabhai at Exh; 19 and this witness was working as a Superintendent in the DILR office, Jamnagar in the City Survey Office No.1 and he has produced the service record of the accused. 7.4 The prosecution examined prosecution witness No. 4 Chhaganlal Vejabhai at Exh; 19 and this witness was working as a Superintendent in the DILR office, Jamnagar in the City Survey Office No.1 and he has produced the service record of the accused. 7.5 The prosecution has examined prosecution witness No. 5 Bhikhubha Balubha Jadeja at Exh: 33 and the witness is the Trap Laying Officer, who has fully supported the case of the prosecution and has narrated in detail all the events that had unfolded from the time that the complainant came to the ACB office on 09/12/1996 and he had taken down the complaint of the complainant and had thereafter called the panch witness and done the entire procedure of trap, the witness has produced the complaint at Exh: 31 and the panchnama at Exh: 32 and has stated that after the trap was successful, he had handed over the further investigation to Police Inspector Mr. Gajendrasinh Nanbhai Sarvaiya at Rajkot (Field). During the cross examination by the learned advocate for the accused, the witness has stated that the complainant had come to the ACB office on 09/12/1996 at around 02:00 pm and he does not remember as to whether the complainant came alone or anyone had accompanied him. 7.6 The prosecution has examined prosecution witness No. 6 Gajendrasinh Nanbhai Sarvaiya at Exh:34 and this witness is the Investigating Officer, who had investigated the offence and after the order of sanction for prosecution was received, he had filed the charge sheet against the accused. 8. On appreciation of the entire evidence produced by the prosecution, as per the complainant, he has stated that he has visited the office of the accused on 09/12/1996 in the morning and had thereafter immediately gone to the ACB office and the trap was arranged in the evening but as per the complaint produced at Exh:31, the complainant has stated that he had visited the office of the accused on 06/12/1996 where the accused had accepted the amount of Rs.150/- and the remaining amount was to be paid on 09/12/1996. That there is a major contradiction in the date of the prior demand and the complainant has stated that he had gone to the office of the accused with Inayatbhai Mohammed Siddique Maniar but the Trap Laying Officer Mr.Bhikhubha Balubha Jadeja does not state that the complainant had come with anyone and has stated that he does not remember as to whether the complainant had come alone or he accompanied with someone else. The complainant in the deposition before learned trial Court has stated that Police Inspector Mr. B.B.Jadeja had given him three currency notes of the denomination of Rs.50/- each whereas the panchwitness Harshalbhai Dave has stated that the complainant had given the three currency notes of the denomination of Rs.50/- each to Police Inspector Mr. B.B.Jadeja. In the entire evidence of the complainant, the presence of the panch witnesses in the office of the ACB when the demonstration of the anthracene powder and the ultraviolet lamp was done, is not mentioned and there are major contradictions with regard to the place where the amount of illegal gratification was paid. The complainant has stated that after the thumb impression of his mother was taken, the accused and he immediately came outside and the amount was paid outside of the house whereas the panch witness has stated that after the thumb impression of his mother was taken, the accused had asked to call for a witness and the complainant went outside and shouted “ Hasan” and hence one person came who affixed his signature on the paper as instructed by the accused. That the amount was paid inside the house and there are contradictions with regard to the place where the amount is paid. In the evidence of the complainant and the panch witness, there is no iota of evidence to show that the accused had demanded for the amount and it appears that the complainant had himself paid the amount to the accused. In the evidence of the complainant and the panch witness, there is no iota of evidence to show that the accused had demanded for the amount and it appears that the complainant had himself paid the amount to the accused. Moreover, in the deposition of the complainant, the presence of Inayatbhai Mohammed Siddique Maniar is stated throughout from the time when the complainant first went to the office of the accused and thereafter it was Inayatbhai Mohammed Siddique Maniar who had told the complainant to go the ACB Police Station and file the complaint against the accused and the said Inayatbhai Mohammed Siddique Maniar had accompanied the complainant but though Inayatbhai Mohammed Siddique Maniar is an important eye witness he has not been examined before the learned trial Court. The complainant has not examined the muddamal currency notes and the complainant has further stated that everyone was taken to the office of the Police at Kojanaka whereas the panch witness has stated that complainant, panch witness and the accused were taken to the inside room in the house of the complainant. Moreover, as far as the recovery of the tainted currency notes from the possession of the accused, the complainant has not stated as to how the tainted currency notes were recovered whereas the panch witness Mr. Harshalbhai Dave stated that the tainted currency notes were recovered by him from the pocket of the accused on instructions of the Police Inspector Mr. B.B.Jadeja. There is also a contradiction with regard to the predetermined signal and the complainant has not stated anything about the predetermined signal whereas the panchwitness Mr. Harshalbhai Dave states that the complainant had given predetermined signal. 9. In the entire evidence of the prosecution on minute appreciation of the entire evidence of the complainant, it appears that the complainant has not supported the complaint and there are major contradictions in the evidence that have surfaced and infirmities in the evidence of the prosecution have clearly come on record. There is no iota of evidence of demand and even though the independent panchwitness Inayatbhai Mohammed Siddique Maniar, the mother of the complainant and Hasanbhai were present, they have not ben examined before the learned trial Court. There is no iota of evidence of demand and even though the independent panchwitness Inayatbhai Mohammed Siddique Maniar, the mother of the complainant and Hasanbhai were present, they have not ben examined before the learned trial Court. Proof of demand and acceptance of illegal gratification is a sine-qua-non to bring home the charge against the accused under the provisions of PC Act and the demand of illegal gratification must be proved beyond reasonable doubts by the prosecution in the first instance. That only if the demand is proved beyond reasonable doubts, the presumption under Section 20 of the PC Act would be available to the prosecution and if the entire evidence is perused, there is no iota of demand that has been proved by the prosecution as the evidence of the complainant is not of a sterling quality. There are major contradictions and it appears that the complainant is not telling the truth in his deposition and in the entire evidence, the demand has not been proved by the prosecution beyond reasonable doubts. As per the settled principles of law in Neeraj Datta (supra) that only when foundational facts have been proved by relevant oral and documentary evidence, the presumption of fact with regard to the demand and acceptance of illegal demand can be made by the learned trial Court. Moreover, proof of acceptance of illegal gratification can follow only if there is proof of demand and in the entire case of the prosecution, the proof of demand is fully missing and there is nothing on record to suggest that the demand of illegal gratification was made by the accused. That there is no reliable evidence to support the conviction and the learned Trial Court has failed to appreciate the entire evidence of the prosecution in proper perspective and has given a wrong conclusion and has convicted the accused. The entire evidence of the prosecution is contrary and far from convincing and requires interference and consequently the appeal succeed and is allowed. 10. The impugned judgment and the order passed by the passed by the learned Special ACB Judge (Fast Track Court No.3), Jamnagar in Special (ACB) Case No. 08 of 1997 on 10.05.2006 is hereby quashed and set aside and the accused is acquitted from all the charges against him. Bail bonds stand canceled. Fine to be refunded to the accused after due verification. 11. Bail bonds stand canceled. Fine to be refunded to the accused after due verification. 11. Record and proceedings be sent back to the concerned Trial Court forthwith.