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2024 DIGILAW 1109 (GUJ)

Pravinbhai Ratilal Chaudhary v. State Of Gujarat

2024-05-03

S.V.PINTO

body2024
JUDGMENT : S.V. Pinto, J. 1. This appeal has been filed by the appellants – original accused under Section 374 of Code of Criminal Procedure, 1973 against the judgement and order of conviction passed by the learned Judge and Presiding Officer, Fast Track Court No. 5, Surat (hereinafter referred to as “the learned Trial Court”) in Special ACB Case No. 16/1995 on 06.12.2006, whereby, the learned Trial Court was pleased to convict the accused and sentence the accused no. 1 to rigorous imprisonment of two years and fine of Rs. 5,000/- and in default, simple imprisonment for one month for the offence punishable under Sections 7, 12, 13(1)(d) 1, 2, 3 and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the PC Act”) and the accused no. 2 to rigorous imprisonment of six months and fine of Rs. 1,000/- and in default, simple imprisonment of one month for the offence punishable under Section 12 of the PC Act. 1.1 Criminal Appeal No. 193/2007 has been filed by the State under Section 377 of Code of Criminal Procedure for enhancement of the sentence passed by the learned Judge and Presiding Officer, Fast Track Court No. 5, Surat in Special ACB Case No. 16/1995 on 06.12.2006. 1.2 Criminal Appeal No. 2306/2006 and Criminal Appeal No. 193/2007 have arisen out of the same impugned judgement and order passed by the learned Trial Court in Special ACB Case No. 16/1995 on 06.12.2006 and hence, both the appeals have been disposed of by this common judgement. 1.3 The appellants of Criminal Appeal No. 2306/2006 and respondents of Criminal Appeal No. 193/2007 are referred as the accused in the rank and file as they 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 no. 1 was working as a Police Constable in the Umarpada Out Post of Mangrol Police Station in the year 1994 and was a public servant and the accused no. 2 was a private person. That one Amarsing Rupabhai Vasava had filed an application against Shamsing K. Vasava – the nephew of the complainant Amarsingbhai Radaviyabhai Vasava in the Umarpada Out Post of Mangrol Police Station on 27.08.1994 and both the parties were called to the Umarpada Out Post at 11.00 hours on 30.07.1994. 2 was a private person. That one Amarsing Rupabhai Vasava had filed an application against Shamsing K. Vasava – the nephew of the complainant Amarsingbhai Radaviyabhai Vasava in the Umarpada Out Post of Mangrol Police Station on 27.08.1994 and both the parties were called to the Umarpada Out Post at 11.00 hours on 30.07.1994. That the Sarpanch of Chichipatal village – Samsungbhai Chiriyabhai was the mediator and had compromised the matter and at that time, the accused no. 1 had told the complainant that they would have to pay an amount of Rs. 1,000/- as illegal gratification for police expenses and for not filing the case against four persons. That the nephew of the complainant – Shamsingbhai K. Vasava intervened and stated that he had only Rs. 100/- and the complainant called Babubhai Jethiyabhai Chaudhary to the Out Post and the accused no. 1 told them to give the amount of Rs. 1,000/- at 10.00 hours on 31.07.1994, else they all would be arrested and behind the bars. That the accused no. 1 accepted the amount of Rs. 100/- from Shamsing K. Vasava – the nephew of the complainant and on 31.07.1994, the complainant met the accused no. 1 and told him that they could not arrange for the amount but the accused no. 1 told them to sell their jewellery and if the amount of Rs. 900/- could not be given at one time, to pay an amount of Rs. 500/- first and thereafter, to pay the remaining amount after a week. That once again on 03.08.1994 at 18.00 hours, the accused no. 1 met the complainant at Umarpada Crossroads and demanded for the amount of Rs. 500/- to be paid on the next day at around 3.30 pm. That the complainant did not want to pay the amount of illegal gratification and hence, the complainant went to the ACB Police Station, Surat and filed the complaint under Sections 7, 12, 13(1)(d), 1, 2, 3 and 13(2) of the PC Act which was registered at C.R. no. 5/1994 on 04.08.1994. That the Trap Laying Officer called the panch witnesses and the demonstration of anthracene powder and the ultraviolet lamp was conducted in the presence of the complainant and the panch witnesses and the trap was arranged on 04.08.1994. That the accused no. 1 accepted the amount of illegal gratification of Rs. 500/- and gave it to the accused no. That the Trap Laying Officer called the panch witnesses and the demonstration of anthracene powder and the ultraviolet lamp was conducted in the presence of the complainant and the panch witnesses and the trap was arranged on 04.08.1994. That the accused no. 1 accepted the amount of illegal gratification of Rs. 500/- and gave it to the accused no. 2 in the tea stall of Thakor near Umarpada Crossroads and the predetermined signal was given and the members of the raiding party came and caught the accused red handed and recovered the tainted currency notes. That the Investigating Officer recorded the statements of the connected witnesses, drew the necessary panchnamas and after the order of sanction for prosecution was received, filed the charge-sheet before the Sessions Court, Surat which was registered as Special ACB Case No. 16/1995. 2.2. Both the accused were duly served with the summons and the accused appeared before the learned Trial Court and after the procedure under Section 207 of Code of Criminal Procedure, 1973 was followed, a charge was framed by the learned Trial Court at Exh. 7 and the statements of the accused were recorded at Exhs. 8 and 9 respectively. The accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.3 The prosecution produced the following oral evidence to bring home the charge against the accused. Sr. No. PW Particulars Exh. 1. 1 Amarsingbhai Radaviyabhai Vasava 11 2. 2 Ramubhai Machhubhai Chaudhary 54 3. 3 Jayantilal Ichchhubhai Patel 87 2.4 The prosecution also produced the following documentary evidence to bring home the charge against the accused. Sr. No. Particulars Exh. 1. Complaint 12 2. Receipt 58 3. Panchnama 59 4. Order of sanction for prosecution 84 5. Appointment order 88 6. Face Identification of Pravinbhai 89 7. Confirmation of appointment order 90 2.5 That after the closing pursis was submitted by the learned APP, the further statements of the accused under Section 313 of the Code of Criminal Procedure were recorded and after the arguments of the learned APP and the learned advocate for the accused were heard, the learned Trial Court was pleased to convict the accused and sentence the accused no. 1 to rigorous imprisonment of two years and fine of Rs. 1 to rigorous imprisonment of two years and fine of Rs. 5,000/- and in default, simple imprisonment for one month for the offence punishable under Sections 7, 12, 13(1)(d) 1, 2, 3 and 13(2) of the PC Act and the accused no. 2 to rigorous imprisonment of six months and fine of Rs. 1,000/- and in default, simple imprisonment for one month for the offence punishable under Section 12 of the PC Act. 3. Being aggrieved and dissatisfied with the said judgement and order of conviction, the appellants have filed the present appeal mainly stating that the impugned judgement and order of conviction passed by the learned Trial Court is illegal, improper, unjust and without considering the material on record and the same deserves to be quashed and set aside. That the learned Trial Court has not appreciated the evidence in true perspective and has convicted the accused just for the sake of conviction merely based on presumptions, conjunctures and surmises and hence, the judgement and order is required to be quashed and set aside. That the learned Trial Court has not properly appreciated the evidence of the witnesses and has not given proper reasons for relying on the evidence of the witnesses. That the accused are entitled to benefit of doubt even in cases under the PC Act and in the instant case, one Jitubhai was present at the time of compromise and settlement, but he has not been shown as an accused in this case. That the evidence of the complainant does not corroborate the story of the prosecution and the prosecution has miserably failed to prove the vital ingredients of demand, acceptance and recovery and hence, the conviction cannot be sustained. That mere recovery of tainted currency notes that too lying on the table, is not sufficient proof of acceptance of bribe by the accused and this recovery lends credence to the case of the accused that the currency notes fell on the table while the complainant was trying to forcible thrust the tainted currency notes in the hands of the accused. That the recovery of the tainted currency notes is not from the possession of the accused and the learned Trial Court has not appreciated the evidence in proper perspective and hence, the impugned judgement and order is required to be quashed and set aside and the accused must be acquitted from all the offences. That the recovery of the tainted currency notes is not from the possession of the accused and the learned Trial Court has not appreciated the evidence in proper perspective and hence, the impugned judgement and order is required to be quashed and set aside and the accused must be acquitted from all the offences. 3.1 Criminal Appeal No. 193/2007 has been filed by the State for enhancement of the sentence to the accused mainly stating that the order of sentenced imposed by the learned Trial Court is grossly inadequate and unduly lenient and the learned Trial Court ought to have imposed the maximum punishment to the respondent no. 1 who had tried to take advantage of the quarrel which took place between the two groups. That the maximum sentence of seven years ought to have been imposed on the accused no. 1 since, he demanded the money from the complainant and also by telling the complainant to sell away his ornaments to pay the amount of bribe. That the maximum punishment of five years prescribed under Section 12 of the PC Act should have been awarded by the learned Trial Court to the accused no. 2 but the learned Trial Court has merely imposed the minimum punishment which is not proper. That the sentence imposed by the learned Trial Court is improper and illegal and hence, the sentence must be enhanced and maximum punishment must be awarded to both the accused. 4. Heard learned advocate Mr. Shakeel Qureshi for the appellants of Criminal Appeal No. 2306/2006 and the respondents of Criminal Appeal No. 193/2007 and learned APP Ms. Krina Calla for the respondent State in Criminal Appeal No. 2306/2006 and the appellant - State of Criminal Appeal No. 193/2007. 5. Learned advocate Mr. Shakeel Qureshi for the appellants of Criminal Appeal No. 2306/2006 and the respondents of Criminal Appeal No. 193/2007 has taken this Court through the entire evidence of the prosecution before the learned Trial Court and has submitted that the accused no. 2 was not present at the time of the alleged demand and the version of the complainant – Amarsing Vasava is not believable as there is improvement in his deposition in respect of the slap given by one constable – Jitubhai. That there is a huge exaggeration in the evidence of the complainant and also contradiction in respect of the slap given by the constable. That there is a huge exaggeration in the evidence of the complainant and also contradiction in respect of the slap given by the constable. Moreover, it is also on record that there were other persons who were present but they have not been examined before the learned Trial Court. That even the panch witness is not reliable as he has stated that the complaint was already lodged before he had arrived and the complaint was not read over to him. That even at the time of the trap, the entire evidence is doubtful as there was the constant presence of other persons at the place. The panch witness has stated that the accused persons had initially come on a motorcycle but they did not take the bribe amount and thereafter, once again they came back and at that time, the currency notes were recovered from the table. Even if the deposition of PW3 – Jayantilal Patel is perused, the witness has registered the complaint, arranged for the entire trap, arrested the accused persons, drew the whole panchnama, made the correspondence for the sanction and has filed the charge-sheet and hence, the entire procedure, right from recording of the complaint till filing of the charge-sheet was done by the same person which casts a great doubt on the credibility of the witness. That there is a major contradiction as to the place where the currency notes were found and the witness states that the currency notes were on the bench, whereas, the panch witness has stated that the currency notes were found on the table. That even otherwise, the complainant is not the aggrieved party and had nothing to do in the quarrel between the two groups and it appears that the complainant has, merely to settle some old scores, has filed the complaint against the accused and there is no cogent, convincing and reliable evidence to convict the accused. The learned Trial Court has relied on the shaky and hazy evidence of the prosecution and has falsely convicted the accused. That in fact, it is admitted that the Sarpanch had intervened and the compromise had taken place between the two parties and there was no question of collecting or demanding any amount of bribe from any person. Moreover, the prosecution is not consistent about the amount of demand and the figure of bribe is varying from Rs. 100/- to Rs. That in fact, it is admitted that the Sarpanch had intervened and the compromise had taken place between the two parties and there was no question of collecting or demanding any amount of bribe from any person. Moreover, the prosecution is not consistent about the amount of demand and the figure of bribe is varying from Rs. 100/- to Rs. 2000/- and thereafter, Rs. 500/-. It is the case of the prosecution, that an amount of Rs. 1000/- was demanded, out of which an amount of Rs. 100/- was given but thereafter, an amount of Rs. 500/- was to be given on 04.08.1994 and hence, this amount is not consistent in the evidence of the prosecution. That the panch witness has also stated that there were no traces of anthracene powder found on the accused no. 2 and if the accused no. 2 had collected the amount from the accused no. 1 and placed it on the table then the traces of anthracene powder should have been found on the hands of the accused no. 2. That even though the main person who had given the slap to the nephew of the complainant is constable – Jitubhai and he has not been arraigned as an accused in the charge-sheet and the entire evidence of the prosecution does not inspire confidence and cannot be relied upon. That the impugned judgement and order passed by the learned Trial Court is based merely on presumption and surmises and hence, the impugned judgement and order must be quashed and set aside and the accused must be acquitted from all the offences. 5.1 As far as Criminal Appeal No. 193/2007 is concerned, learned advocate Mr. Shakeel Qureshi has stated that when the evidence is not reliable and trustworthy and no order of conviction can be passed on such contradictory evidence, the question of enhancement of sentence does not arise and the appeal of the State must be rejected. 5.2 Learned advocate Mr. Shakeel Qureshi has relied on the judgement of the Hon’ble 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 in para 68 has observed as under: “68. 5.2 Learned advocate Mr. Shakeel Qureshi has relied on the judgement of the Hon’ble 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 in para 68 has observed as under: “68. 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. (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. 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. (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. (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.” 5.3 Learned advocate Mr. Shakeel Qureshi has relied on the judgement of the Hon’ble Apex Court in the case of Meena w/o Balwant Hemke Vs. State of Maharashtra reported in 2000 (0) AIJEL-SC 17494, wherein, the Apex Court in para 9 has observed as under: 9. The essential ingredients to be established to indict a person of an offence under Section 5(1)(d) of the Act are that he should have been a public servant; that he should have used corrupt or illegal means or otherwise abused his position as such public servant, and that he should have obtained a valuable thing or pecuniary advantage for himself or any other person. Likewise, Section 161, IPC, requires that the person accepting the gratification should be a public servant; that he should accept the gratification for himself and the gratification should be as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official function, favour or disfavour to any person. Like any other criminal offence, the prosecution has to prove the charge beyond reasonable doubt and accused should be considered innocent, till it is established otherwise by proper proof of acceptance of the illegal gratification, the vital ingredient, necessary to be established to procure a conviction for the offences under consideration. We have bestowed our careful thought to the submissions made on either side, in the light of the evidence on record. We have bestowed our careful thought to the submissions made on either side, in the light of the evidence on record. We are of the view that neither the quality of the materials produced nor their proper evaluation could, in this case, be held sufficient to convince or satisfy the judicial conscience of any adjudicating Authority to record a verdict of guilt, on such slender evidence. Indisputably, the currency note in question was not recovered from the person or from the table drawer, but when the trap party arrived was found only on the pad on the table and seized from that place only. The question is as to whether the appellant accepted it and placed it on the table or that the currency note fell on the pad on the table in the process of the appellant refusing to receive the same by pushing away the hands of PW-1 and the currency, when attempted to be thrust into her hands. 6. Learned APP Ms. Krina Calla for the State has submitted that the learned Trial Court has rightly appreciated all the evidence and the complainant and the panch witness has stated that the accused no. 1 had demanded for the amount of illegal gratification and had taken the same and passed it to the accused no. 2 who had taken it with his left hand and placed it on the table and there is ample evidence to show that the amount of Rs. 500/- which were the tainted currency notes were recovered from the table. That the learned Trial Court has rightly appreciated all the evidence and has rightly convicted the accused and no interference is required. 6.1 With regard to the Criminal Appeal No. 193/2007, learned APP Ms. Krina Calla has submitted that the accused no. 1 is a police constable and is a member of a disciplined force and is well aware of the implications of demanding and accepting illegal gratification. Moreover, the accused no. 1 is well aware that the complainant was a poor person and had told him to sell his ornaments and give him the amount of illegal gratification which shows the mental attitude of the accused no. 1 and no leniency can be shown to the accused no. 1. Moreover, the accused no. 1 is well aware that the complainant was a poor person and had told him to sell his ornaments and give him the amount of illegal gratification which shows the mental attitude of the accused no. 1 and no leniency can be shown to the accused no. 1. That the learned Trial Court has rightly found the accused guilty but has been very lenient with both the accused persons and hence, has urged this Court to enhance the sentence of both the accused and impose maximum sentence as per the law. 7. Before adverting to the facts of the present appeal, it is essential to reiterate the cardinal principles of Criminal Jurisprudence as settled by the Hon’ble Apex Court in a catena of decisions and the first cardinal principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot claim any benefit of the weaknesses of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless he is proved guilty beyond reasonable doubts from the evidence of the prosecution and the third cardinal principle is that the burden of onus of proof never shifts from the prosecution. 8. 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. 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. 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. 8.1 It is settled law that in a criminal trial, the prosecution must prove the case beyond reasonable doubts and to bring home the charge against the accused, the prosecution has examined PW1 – Amarsingbhai Radavadiyabhai Vasava at Exh. 11 and this witness is the complainant who has stated that his nephew – Shamsing Kachakiya Vasava had a buffalo who died on 26.07.1994 and he had a fight with his uncle – Ramsing Rupabhai and his uncle – Ramsing Rupabhai had made an application against Shamsing in the Umarpada Out Post. That two policement – Pravinbhai and Jitubhai came to the village to the house of Shamsing Kachakiya and called him to the Umarpada Out Post on 30.07.1994 at 11.00 hours. That as the complainant knew the police persons, he went and on 30.07.1994, they went to the Umarpada Out Post at 11.00 hours. That the Sarpanch of Chichipatal village – Shamsingbhai Vasava was also present and he intervened and a compromise was arrived at between both the parties and a compromise deed was made and they all affixed their signatures on the compromise deed. That at that time, the accused no. 1 called the complainant and Shamsingbhai to one side and demanded for an amount of illegal gratification of Rs. 1000/-. That at that time, his nephew – Shamsing had an amount of Rs. 100/- and the same was taken by the accused no. 1. That once again the demand was made on 03.08.1994 and hence, the complaint was filed by the complainant. That on 04.08.1994, the trap was arranged and the witness has stated that the panch witnesses were called to the ACB Office and the demonstration of anthracene powder and ultraviolet lamp was done in the presence of the panch witnesses and the complainant, and the complainant gave five currency notes of the denomination of Rs. 100/- each on which anthracene powder was applied. That the currency notes smeared with anthracene powder were placed in his left shirt pocket of the complainant and they went to the Umarpada Crossroads. That they waited for the accused no. 1 who came at around 06.00 pm on a Rajdoot Motorcycle with one pillion rider. That the accused no. 100/- each on which anthracene powder was applied. That the currency notes smeared with anthracene powder were placed in his left shirt pocket of the complainant and they went to the Umarpada Crossroads. That they waited for the accused no. 1 who came at around 06.00 pm on a Rajdoot Motorcycle with one pillion rider. That the accused no. 1 met the complainant and told him that he was going to the market and went towards the market. That after some time, the accused no. 1 came with the accused no. 2 and parked his motorcycle where the complainant and the panch witness were waiting and the accused no. 1 invited the complainant for tea at the hotel of Thakorbhai Purohit. That the panch no. 1, the accused and the complainant went and sat on the bench in the hotel and at that time, the complainant gave the amount of Rs. 500/- which was accepted by the accused no. 1 with his right hand and the accused no. 1 gave it to the accused 2 who took it with his left hand and kept the currency notes on the table. That the complainant gave the predetermined signal and the members of the raiding party came and caught both the accused red handed and the currency notes were recovered from the table. During the cross-examination, the complainant had stated that the accused no. 2 is known to him as he is from the neighbouring village and the application of Ramsing Rupabhai Vasava was investigated by Head Constable – Mohanbhai. That on the intervention of Sarpanch – Shamsingbhai, the compromise had taken place and at that time, the accused no. 2 was not present. That he had later on known that the accused no. 1 had give a slap to his nephew and the same was not liked by the complainant. That between the time that they left the Out Post and the time that he filed the complaint, he had not met the accused no. 1 or constable – Jitubhai and his nephew and he had not told his nephew that he was going to the ACB Police Station to file the complaint. That Shamsingbhai had not filed the complaint against him but the complaint was against his nephew and the accused no. 1 or constable – Jitubhai and his nephew and he had not told his nephew that he was going to the ACB Police Station to file the complaint. That Shamsingbhai had not filed the complaint against him but the complaint was against his nephew and the accused no. 1 had not come to his house but had come to the house of his nephew to call him to the police chowki. That there was a compromise between both the parties and the slap that was given to his nephew was not given by the accused no. 1 and at that time, the witness was not present. The place where the raid was arranged was a crossroad and at that time, the owner of the hotel and other persons were in the hotel. That when the members of the raiding party rushed inside, the currency notes were on the table and the experiment of ultraviolet lamp was done on the clothes of the accused no. 1. That the accused had not called him to the police chowki and he had felt insulted that his nephew was slapped in the presence of both the parties. 8.2 The prosecution has examined PW2 – Ramubhai Manchhubhai Chaudhary at Exh. 54 and this witness is the panch witness who has supported the case of prosecution and has narrated all the events that had taken place when he and junior clerk – Nanubhai Narsingbhai Patel were called to the ACB Office. The witness has stated that the demonstration of the anthracene powder and the ultraviolet lamp was done in their presence and thereafter, they had gone for the trap with the tainted currency notes that were placed in the shirt pocket of the complainant. During the cross-examination, the witness has stated that the ACB Office is situated at a distance of five minutes from the RTO Office and before they had reached the ACB Office, the complaint of the complainant was already written down. That he does not know who had given the complaint, who had written the complaint and on whose instructions the complaint was written and he had signed as a panch on the complaint on the instructions of Patel Saheb. That when they went to the Umarpada Crossroads, they did not find the accused no. 1 and at that time, he found out that the accused no. That when they went to the Umarpada Crossroads, they did not find the accused no. 1 and at that time, he found out that the accused no. 1 was a police constable in the Umarpada Police Chowki. That as he had not read the complaint, he did not know whether the complaint contained any other name besides the name of the accused no. 1 and when the accused no. 1 came to the crossroads for the first time, he got down from the motorcycle and the pillion rider also got down and they spoke to the complainant. That the accused no. 1 told the complainant to wait and no other conversation had taken place and at that time the accused no. 1 had not asked the complainant as to whether the had brought the money. That he does not know the number of the motorcycle on which the accused no. 1 came and the nephew of the complainant was not questioned in his presence. That the witness knew that the dispute was between the nephew of the complainant and his uncle and he does not know as to in whose ownership is Purohit Hotel and at the time of the trap there were other persons who were present. That the hotel had tables and benches and the bench on which he was seated, had other three persons also. That he cannot tell as to which portion of the table, the currency notes were kept and even when the accused came, there was no conversation about any demand and acceptance of money. That the accused no. 1 did not ask whether the complainant had brought the money and he did not demand for the money and hence, on the first instance, there was no question about any transaction of money. 8.3 The prosecution has examined PW3 – Jayantilal Ichchhubhai Patel at Exh. 87 and this witness was the Police Inspector, ACB Police Station before whom the complainant had gone and he had recorded the complaint of the complainant and had thereafter called the panch witnesses and arranged for the trap. The witness has identified his signature on the complaint and has narrated in detail all the procedure that was undertaken for the trap and has narrated in detail all the events till the trap was successful. The witness has identified his signature on the complaint and has narrated in detail all the procedure that was undertaken for the trap and has narrated in detail all the events till the trap was successful. The witness has thereafter, stated that after the trap, florescent blue light was found on the left hand of the accused no. 2 and the right hand of the accused no. 1 and the currency notes were found from the bench in the hotel and at that place also the traces of anthracene powder were found in the ultraviolet lamp test. That the witness had recorded the statements of both the accused and the complaint was registered at 3.40 hours at ACB Surat Police Station being C.R. No. 5/1994 under Sections 7, 12, 13(1) (d), 1, 2, 3 and 13(2) of the PC Act and the report under Section 157 of the Code of Criminal Procedure was made. That after the further statement of the complainant was recorded and the necessary correspondence for the order of sanction for prosecution was made and after the order of sanction for prosecution was received, the charge-sheet was filed against both the accused on 20.03.1995. During the cross-examination, the witness has stated that the he had recorded the complaint of the complainant and the panchnama was prepared in his presence and the entire investigation was conducted by him that he was the main member of the raiding party. That the complainant had stated that name of his nephew – Shamsing Kachakiyabhai Vasava was in the complaint and the problem was between the nephew and his uncle and had nothing to do with the complainant. That the matter was resolved in the Umarpada Out Post between both the parties with the intervention of other persons of the village and during the investigation, it was found that the complainant was like a leader of his village. That during investigation, it was also found that the accused no. 1 and one another constable Jitubhai had slapped the nephew of the complainant and when the complainant came to file the complaint, his nephew Shamsing Vasava had not come with him. That he had recorded the statement of the nephew Shamsing Vasava but when the complaint was filed till the panchnama was written, he had not recorded the statement of the nephew Shamsing Vasava. That he had recorded the statement of the nephew Shamsing Vasava but when the complaint was filed till the panchnama was written, he had not recorded the statement of the nephew Shamsing Vasava. That in the complaint and in the first part of the panchnama, the names of two policemen have been mentioned but the charge-sheet has been filed against only one policeman. That the trap that was arranged, was for the accused no. 1 and constable Jitubhai and he had collected the documents and the application made against the nephew of the complainant and in that application, the name of the present complainant – Amarsingbhai Radaviyabhai was not mentioned. That the tainted currency notes were not recovered from the shirt or pant pocket of any of the accused and no traces of anthracene powder were found from the clothes of the accused. That when he reached the table, the currency notes were not in the hands of any of the accused and before the trap was arranged, the compromise was already arrived at between both the parties to the complaint in the Umarpada Out Post. 9. On minute appreciation of the entire evidence produced by the prosecution on record, it appears that the original application that was filed in Umarpada Out Post was filed by one Ramsingbhai Rupabhai Vasava against the nephew of the complainant and the matter was settled between both the parties in the Umarpada Out Post on the same day. That the complainant had nothing to do with that application or the allegations made against his nephew and as the matter was settled with the intervention of Sarpanch and other persons of the village, there was no reason for the accused no. 1 to demand for any amount of illegal gratification from the complainant as the complainant was not connected in any manner to the application. Moreover, it has also surfaced on record that the investigation of the application was with one constable Mohanbhai and the present accused no. 1 was not investigating the matter at the Umarpada Out Post. It appears that the complainant Amarsingbhai Radaviyabhai Vasava was like a leader of the village and he was annoyed as his nephew Shamsing Vasava was slapped by police constable Jitubhai in the Police Station. That there was no reason whatsoever for the accused no. 1 was not investigating the matter at the Umarpada Out Post. It appears that the complainant Amarsingbhai Radaviyabhai Vasava was like a leader of the village and he was annoyed as his nephew Shamsing Vasava was slapped by police constable Jitubhai in the Police Station. That there was no reason whatsoever for the accused no. 1 to demand for any amount of illegal gratification as the accused no. 1 was not investigating the matter between the parties and the matter was already settled and compromised between the parties. It has also come on record that the compromise deed was written and signed by all the members of both the parties on the same day at the Umarpada Out Post. As far as the demand aspect is concerned, as per the case of prosecution, when the trap was arranged, the complainant and the shadow witness went to the Umarpada Crossroad and at that time, the accused no. 1 came driving his Rajdoot motorcycle with a pillion rider. That if the accused no. 1 had demanded the amount of illegal gratification, at that instant itself he would have asked the complainant for the amount of illegal gratification and would have accepted the same and put it in his pocket but instead the accused no. 1 told the complainant that he was going to the market and he went away and returned after some time with the accused no. 2. The story of the complainant that the accused no. 1 had demanded the amount of illegal gratification is not believable as also in the story that unfolds, it is stated that the complainant had himself volunteered to give the amount of Rs. 500/- to the accused no. 1 who had accepted the same with his right hand and immediately thereafter, passed it over to the accused no. 2 who took it with his left hand and kept it on the table. Admittedly, the accused no. 2 is a private person and was in no way connected to the application filed by Ramsingbhai Rupabhai Vasava and was not present in the Umarpada Out Post when both the parties had met for the compromise but the currency notes were handed over to the accused no. 2 by the accused no. 1. That if the accused no. 1 had in fact, demanded for the amount of illegal gratification of Rs. 500/-, the accused no. 2 by the accused no. 1. That if the accused no. 1 had in fact, demanded for the amount of illegal gratification of Rs. 500/-, the accused no. 1 would have taken the currency notes and placed the same in his pocket and would not have handed over it to the accused no. 2. That there is no whisper of demand whatsoever in the evidence of the complainant or the panch witness and the prosecution has not proved the factum of demand beyond reasonable doubts. 9.1 As per the say of the complainant, the accused no. 2 had placed the tainted currency notes on the table but the Trap Laying Officer – PW3 – Jayantilal Ichchhubhai Patel states that the tainted currency notes were recovered from the bench where they were placed. That admittedly the tea hotel of Thakorbhai had tables and benches and there is a different between a table and a bench and it is not clear as to where the tainted currency notes were recovered from and there is major contradiction in the place of recovery of the tainted currency notes. 9.2 That the original demand, as stated by the complainant, was made by the accused no. 1 from Shamsingbhai K. Vasava – the nephew of the complainant but the prosecution has not examined Shamsingbhai K. Vasava and if the evidence is perused, Ramsingbhai Rupabhai Vasava had given the application about the death of his buffalo against Shamsingbhai K. Vasava who was the main person against whom the application was filed and if there was any demand of illegal gratification in regard to the application against Shamsingbhai K. Vasava, it would be made from Shamsingbhai K. Vasava and not from the present complainant – Amarsingbhai Radaviyabhai Vasava who was in no way connected to the application. 9.4 The panch witness – PW2 – Ramubhai Manchhubhai Chaudhary has clearly stated that no traces of anthracene powder were found from the hands of the accused no. 2 and in the evidence, it has come on record that there were many independent witnesses in the hotel at the time of trap, including the hotel owner and the persons who were preparing the tea and also other customers but no independent witness has been examined by the prosecution. If the complaint of the complainant is perused, it is against the accused no. If the complaint of the complainant is perused, it is against the accused no. 1 and constable Jitubhai and in fact, it appears that the entire grievance of the complainant was against constable Jitubhai who had given a slap to his nephew but no charge-sheet has been filed against Jitubhai. Even otherwise in the entire evidence, it has come on record that PW3 – Jayantibhai Ichchhubhai Patel was the Police Inspector who has recorded the complaint of the complainant in his presence, had called the panch witnesses and had arranged for the trap after the demonstration of anthracene powder and the ultraviolet lamp and was the main member of the raiding party. That the panchnama was drawn in his presence and the witness has himself arrested the accused and has thereafter, investigated the entire offence, made the necessary correspondence for receiving the order of sanction for prosecution from the competent authority and has thereafter, filed the charge-sheet against the accused. That PW3 – Jayantibhai Ichchhubhai Vasava has done the entire procedure right from the filing of the complaint till the filing of the charge-sheet and this casts a huge doubt on credibility of the evidence of the prosecution and the evidence becomes suspicious on this count alone. As discussed above, there is no iota of evidence regarding the demand and Shamsing – the nephew of the complainant who was the most important witness from whom any demand of illegal gratification ought to have been made has not been examined and also independent witnesses, though available at the time of the trap, have not been examined. Considering the major contradiction from the place where the tainted currency notes were recovered from whether the table or the bench, is highly questionable and there is no explanation as to why the accused no. 1 would accept the tainted currency notes and immediately pass it over to the accused no. 2 who would take it and place it on the table. It appears that the complainant had an axe to grind with the accused no. 1 and was not happy as his nephew was slapped in the Umarpada Out Post and as the complainant was a leader of the village, he was angry with the accused no. 1 and Jitubhai and had filed the complaint. It appears that the complainant had an axe to grind with the accused no. 1 and was not happy as his nephew was slapped in the Umarpada Out Post and as the complainant was a leader of the village, he was angry with the accused no. 1 and Jitubhai and had filed the complaint. During the cross-examination, the complainant has also admitted that after the compromise had taken place in the Umarpada Out Post till the date of filing of the complaint, he had met the accused no. 1 and hence, the say of the complainant that whenever he met the accused no. 1, the accused no. 1 would demand for the amount of illegal gratification, is not proved. Moreover, the best person who could corroborate the initial demand would be Shamsing – nephew of the complainant but he has not been examined before the learned Trial Court. Moreover, as PW3 – Jayantibhai Ichchhubhai Patel has recorded the complaint, arranged for the trap and conducted the entire investigation, the fair and impartial investigation is under a doubt and the case of the prosecution suffers from a basic infirmity which is sufficient to vitiate the whole investigation and the proceedings based on such investigation need to be quashed and set aside on this count alone. 10. Even otherwise in view of the decisions relied upon by the appellants in the case of Neeraj Dutta (supra) and Meena w/o Balwant Hemke (supra), there is no iota of demand of any illegal gratification made by the accused no. 1 and the infirmities in the case of prosecution have surfaced on record. As discussed above, there are major contradictions and these contradictions are fatal to the case of prosecution and the learned Trial Court has completely misread the evidence and has passed the impugned judgement and order of conviction which is not sustainable. Consequently, Criminal Appeal No. 2306/2006 is allowed and the impugned judgement and order passed by the learned learned Judge and Presiding Officer, Fast Track Court No. 5, Surat in Special ACB Case No. 16/1995 on 06.12.2006 is quashed and set aside and the appellants are acquitted from all the charges levelled against them. 11. Consequently, Criminal Appeal No. 2306/2006 is allowed and the impugned judgement and order passed by the learned learned Judge and Presiding Officer, Fast Track Court No. 5, Surat in Special ACB Case No. 16/1995 on 06.12.2006 is quashed and set aside and the appellants are acquitted from all the charges levelled against them. 11. As discussed above, there is no sufficient evidence to convict the accused and the impugned judgement and order of conviction is required to be set aside and when the conviction of the accused is not found to be sustainable, Criminal Appeal No. 193/2007 for enhancement is hereby rejected. 12. Bail bond stands cancelled. Fine to be refunded to the appellants after due verification. Record and Proceedings be sent back to the Trial Court forthwith.