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2024 DIGILAW 390 (GUJ)

State of Gujarat v. Shambhubhai Jesangbhai Raval

2024-02-27

S.V.PINTO

body2024
JUDGMENT : S.V. PINTO, J. 1. This appeal has been filed by the appellant-State under Section 378(1)(3) of the Code of Criminal Procedure, 1973 (herein after referred to as ‘the Code’) against the judgment and order of acquittal dated 21.04.2010 passed by the learned 5th Additional District and Sessions Judge, Surat (herein after referred to as ‘the learned Trial Court’) in Special (ACB) Case No. 24 of 2003, whereby, the learned Trial Court has acquitted the respondent from the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act (herein after referred to as ‘the P.C. Act’). The respondent is hereinafter referred to as ‘the accused’ as 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 complainant Laxmanbhai Dungarbhai Vasava, resident of village Naren, Taluka Mandavi, District Surat wanted to enter the name of his son Bhimsing as a legal heir of Gomanbhai Dullabhbhai Prajapati, who had executed a registered Will in favour of the Bhimsingh, son of the complainant regarding property bearing Block No. 517 admeasuring 03 Hector - 56 Aare - 08 sq. mtrs. situated in village Naren, Taluka Mandavi, District Surat and Gomanbhai Dullabhbhai Prajapati expired on 12.01.2002. That the accused was working as a Talati-cum-Mantri in Naren Village Gram Panchayat and 2-3 days after the demise of Gomanbhai Dullabhbhai Prajapati, the complainant took the registered Will and met the accused to get the name of his son Bhimsing entered into the revenue record and at that time, the accused took the original Will and demanded an amount of Rs. 30,000/- from the complainant as illegal gratification. That the complainant was a poor person and could not afford the huge amount of Rs. 30,000/- and finally after bargaining, the accused demanded an amount of Rs. 7,000/- but as the complainant could not pay the same, he returned back home. That, thereafter, the complainant met the accused on number of occasions and on every occasion, the accused demanded the amount of Rs. 7,000/- and told him to give the amount of illegal gratification at his residence situated at Holi Faliya, Mandavi, where he was residing on the first floor. That the complainant went to the residence of the accused and once again, the accused told the complainant to pay Rs. 7,000/- and told him to give the amount of illegal gratification at his residence situated at Holi Faliya, Mandavi, where he was residing on the first floor. That the complainant went to the residence of the accused and once again, the accused told the complainant to pay Rs. 7,000/- but when the complainant told him that he is not able to afford such a huge amount, at that time, the accused told him to pay Rs.3,000/- on 20.08.2002 at about 3.00 pm and to pay the remaining amount after the work was done. That as the complainant did not want to pay the amount, he filed a complaint at ACB Police Station, Surat under Section 7, 13(1)(d) and 13(2) of the P.C. Act, which was registered as I-C.R. No. 8 of 2002 on 20.08.2002. That the panch witness were called and after the necessary procedure, the trap was laid on 20.08.2002 at about 3.15 pm and in the presence of the witness, the accused demanded for the amount of illegal gratification, which was paid by the complainant and accepted and recovered by the Trap Laying Officer and the other members of the Raiding Party. That after due investigation, the charge sheet was filed before the learned Sessions Court, Surat and the case was registered as Special (ACB) Case No. 24 of 2003. 2.2. That the accused was summoned and after following the procedure of Section 207 of the Code, a charge was framed by the learned Trial Court at Exh.5 and the statement of the respondent - accused was recorded at Exh.6, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. That after the closing pursis was given by the learned APP, the further statement of the accused under Section 313 of the Code was recorded and the arguments of both the parties were heard and the learned Trial Court, by the impugned judgment and order dated 21.04.2010 in Special (ACB) Case No. 24 of 2003, gave the benefit of doubt to the accused and acquitted him from all the offences. 3. 3. Being aggrieved and dissatisfied with the impugned judgment and order of acquittal dated 21.04.2010 passed by the learned Trial Court in Special (ACB) Case No. 24 of 2003, the State has filed the present appeal mainly contending that the prosecution has produced the oral evidence of five witnesses and the documentary evidence, which prove the case beyond reasonable doubts. The impugned judgment and order of acquitting the accused is against the evidence on record of the case and the learned Trial Court has not appreciated the evidence in correct perspective and has erred in concluding that the demand and acceptance of illegal gratification is not proved. That the complaint at Exh.12 and the panchnama at Exh.22 have been corroborated by the evidence of the complainant and the prosecution witness examined at Exh.11. That the learned Trial Court has not properly appreciated all the evidence and has discarded the evidence of the complainant and other witnesses giving more weightage to minor omissions and contradictions. That the entire circumstances point to the guilt of the accused and the evidence of the complainant as well as the Trap Laying Officer fully corroborate with each other and there is no reason to disbelieve their versions. That the learned Trial Court has erroneously come to conclusion that the competent authority, who has accorded the sanction, was not competent to launch the prosecution against the accused. That the prosecution has proved that the accused had received the bribe amount and the impugned judgment and order is illegal, unjust and irrelevant and the trap was laid by the Trap Laying Officer in the house of the accused and the same was successful and the currency notes laced with anthracene powder was recovered from the possession of the accused. That even though, the complainant and the panch witnesses have turned hostile, the learned Trial Court has not appreciated their evidence properly. That the impugned judgment and order is perverse and erroneous and the same is required to be set aside and the accused be convicted for the said offence. 4. Heard learned APP Mr. Bhargav Pandya for the appellant-State and learned Advocate Mr. Shakeel A. Quresh for the respondent-accused. 5. Learned APP Mr. That the impugned judgment and order is perverse and erroneous and the same is required to be set aside and the accused be convicted for the said offence. 4. Heard learned APP Mr. Bhargav Pandya for the appellant-State and learned Advocate Mr. Shakeel A. Quresh for the respondent-accused. 5. Learned APP Mr. Bhargav Pandya has taken this Court though the evidence and particularly, the evidence of the Trap Laying Officer and the panchanama produced at Exh.22 and the Seizure Memo produced at Exh.23 and has submitted that the case is proved beyond reasonable doubts. That the amount of illegal gratification of Rs. 3,000/- was recovered from the house of the present accused. That the complainant has clearly stated that the accused had made demand of money for getting the name of the complainant’ son entered in the revenue record of property bearing Block No. 517 admeasuring 03 Hector - 56 Aare - 08 sq. mtrs. situated in village Naren, Taluka Mandavi, District Surat on the basis of a registered Will executed by one Gomanbhai Dullabhbhai Prajapati. That even though, the prosecution has proved the case beyond reasonable doubts, the learned Trial Court has not appreciated the same and hence, the impugned judgment and order be set aside. 6. Learned advocate Mr. Shakeel Qureshi for the respondent has submitted that the learned Trial Court has appreciated all the evidence in proper perspective and there is no iota of evidence that the accused had ever demanded any money from the complainant. That the complainant himself has turned hostile and in his evidence, there is no evidence regarding any demand. In fact, from the evidence, it is clearly made out that the complainant had for reasons unknown wanted to enter the name of his son Bhimsing in the revenue record of the property bearing Block No. 517 admeasuring 03 Hector - 56 Aare - 08 sq. mtrs. situated in village Naren, Taluka Mandavi, District Surat on the basis of a registered Will executed by Gomanbhai Dullabhbhai Prajapati, which was not legally possible and the accused had refused to do so and hence, the complainant himself had placed the tainted currency notes on the table in the house of the accused without the knowledge of the accused when the accused went to bring water and also placed a daily newspaper ‘Sandesh’ on top of the tainted currency notes. That this was done in the absence of the accused, who was completely unaware of the same and thereafter, the members of the Raiding Party came and recovered the amount from the house of the accused. That at the very same time, the accused had told the Trap Laying Officer and the members of the Raiding Party that he did not know about the amount that was placed on the table in his absence but the Trap Laying Officer did not believe the same. That even the panch witness has deposed to this effect and the learned Trial Court has appreciated all the evidence properly and no interference is required. 7. At the outset, before discussing the facts of the present case, it would be appropriate to refer to the observations of the Apex Court in the case of Mallappa and Others vs. State of Karnataka in Criminal Appeal No. 1162 of 2011 on 12.02.2024, wherein, the Apex Court has observed in Para Nos. 24 to 26, as under: “24. We may firstly discuss the position of law regarding the scope of intervention in a criminal appeal. For, that is the foundation of this challenge. It is the cardinal principle of criminal jurisprudence that there is a presumption of innocence in favour of the accused, unless proven guilty. The presumption continues at all stages of the trial and finally culminates into a fact when the case ends in acquittal. The presumption of innocence gets concretized when the case ends in acquittal. It is so because once the Trial Court, on appreciation of the evidence on record, finds that the accused was not guilty, the presumption gets strengthened and a higher threshold is expected to rebut the same in appeal. 25. No doubt, an order of acquittal is open to appeal and there is no quarrel about that. It is also beyond doubt that in the exercise of appellate powers, there is no inhibition on the High Court to re-appreciate or re-visit the evidence on record. However, the power of the High Court to re-appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. However, the power of the High Court to re-appreciate the evidence is a qualified power, especially when the order under challenge is of acquittal. The first and foremost question to be asked is whether the Trial Court thoroughly appreciated the evidence on record and gave due consideration to all material pieces of evidence. The second point for consideration is whether the finding of the Trial Court is illegal or affected by an error of law or fact. If not, the third consideration is whether the view taken by the Trial Court is a fairly possible view. A decision of acquittal is not meant to be reversed on a mere difference of opinion. What is required is an illegality or perversity. 26. It may be noted that the possibility of two views in a criminal case is not an extraordinary phenomenon. The ‘two-views theory’ has been judicially recognized by the Courts and it comes into play when the appreciation of evidence results into two equally plausible views. However, the controversy is to be resolved in favour of the accused. For, the very existence of an equally plausible view in favour of innocence of the accused is in itself a reasonable doubt in the case of the prosecution. Moreover, it reinforces the presumption of innocence. And therefore, when two views are possible, following the one in favour of innocence of the accused is the safest course of action. Furthermore, it is also settled that if the view of the Trial Court, in a case of acquittal, is a plausible view, it is not open for the High Court to convict the accused by re-appreciating the evidence. If such a course is permissible, it would make it practically impossible to settle the rights and liabilities in the eyes of law. In Selvaraj vs. State of Karnataka: “13. Considering the reasons given by the trial court and on appraisal of the evidence, in our considered view, the view taken by the trial court was a possible one. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri vs. State of Tamil Nadu, (2002) 9 SCC 639 has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. Thus, the High Court should not have interfered with the judgment of acquittal. This Court in Jagan M. Seshadri vs. State of Tamil Nadu, (2002) 9 SCC 639 has laid down that as the appreciation of evidence made by the trial court while recording the acquittal is a reasonable view, it is not permissible to interfere in appeal. The duty of the High Court while reversing the acquittal has been dealt with by this Court, thus: “9........We are constrained to observe that the High Court was dealing with an appeal against acquittal. It was required to deal with various grounds on which acquittal had been based and to dispel those grounds. It has not done so. Salutary principles while dealing with appeal against acquittal have been overlooked by the High Court. If the appreciation of evidence by the trial court did not suffer from any flaw, as indeed none has been pointed out in the impugned judgment, the order of acquittal could not have been set aside. The view taken by the learned trial court was a reasonable view and even if by any stretch of imagination, it could be said that another view was possible, that was not a ground sound enough to set aside an order of acquittal.” (Emphasis supplied) In Sanjeev vs. State of Himachal Pradesh, the Hon’ble Supreme Court analyzed the relevant decisions and summarized the approach of the appellate Court while deciding an appeal from the order of acquittal. It observed thus: “7. It is well settled that: 7.1. While dealing with an appeal against acquittal, the reasons which had weighed with the trial court in acquitting the accused must be dealt with, in case the appellate court is of the view that the acquittal rendered by the trial court deserves to be upturned. [See Vijay Mohan Singh vs. State of Karnataka, Anwar Ali vs. State of Himachal Pradesh] 7.2. With an order of acquittal by the trial court, the normal presumption of innocence in a criminal matter gets reinforced. [See Atley vs. State of U.P.] 7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal. [See Sambasivan vs. State of Kerala].” 7.1. In Para-36, the Apex Court, in the case of Mallappa (Supra), has observed as under: “36. [See Atley vs. State of U.P.] 7.3. If two views are possible from the evidence on record, the appellate court must be extremely slow in interfering with the appeal against acquittal. [See Sambasivan vs. State of Kerala].” 7.1. In Para-36, the Apex Court, in the case of Mallappa (Supra), has observed as under: “36. Our criminal jurisprudence is essentially based on the promise that no innocent shall be condemned as guilty. All the safeguards and the jurisprudential values of criminal law, are intended to prevent any failure of justice. The principles which come into play while deciding an appeal from acquittal could be summarized as: (i) Appreciation of evidence is the core element of a criminal trial and such appreciation must be comprehensive-inclusive of all evidence, oral or documentary. (ii) Partial or selective appreciation of evidence may result in a miscarriage of justice and is in itself a ground of challenge. (iii) If the Court, after appreciation of evidence, finds that two views are possible, the one in favour of the accused shall ordinarily be followed. (iv) If the view of the Trial Court is a legally plausible view, mere possibility of a contrary view shall not justify the reversal of acquittal. (v) If the appellate Court is inclined to reverse the acquittal in appeal on a re-appreciation of evidence, it must specifically address all the reasons given by the Trial Court for acquittal and must cover all the facts. (vi) In a case of reversal from acquittal to conviction, the appellate Court must demonstrate an illegality, perversity or error of law or fact in the decision of the Trial Court. 7.2. The Apex Court, in the case of Neeraj Dutta vs. State (Govt. of NCT of Delhi), 2022 (0) Supreme (SC) 1248, has observed in Para No. 68, which reads 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. (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 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. 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 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.” 8. 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.” 8. In view of the above settled principles of law with regard to acquittal appeals under the P.C. Act, the evidence led by the prosecution is required to be re-appreciated and in the instant case, the prosecution has examined the following witnesses to prove the case: 1. Laxmanbhai Dungarbhai Vasava Complainant Exh.11 2. Dahyabhai Zaverbhai Chauhan Panch Witness Exh.21 3. Parbhubhai Dahyabhai Patel Panch Witness Exh.28 4. Kirtikumar Manchhabhai Chaudhari Trap Laying Officer Exh.36 5. Shravansingh Amarsingh Sardar Investigating Officer Exh.38 9.1 The prosecution has examined PW-1 Laxmanbhai Dungarbhai Vasava at Exh.11, who has stated that Gomanbhai Dullabhbhai Prajapati was known to him and he was a resident of village Areth. That Gomanbhai Dullabhbhai Prajapati expired on 12.01.2002 and 20 days prior to his death, he visited the complainant at village Naren and Bhimsingh, son of the complainant, was looking after Gomanbhai Dullabhbhai Prajapati, who had property bearing Block No. 517 admeasuring 03 Hector - 56 Aare - 08 sq. mtrs. situated in village Naren, Taluka Mandavi, District Surat. That Gomanbhai Dullabhbhai Prajapati had executed a registered Will for the above referred property at the office of Sub Registrar, Mandavi. That the said registered Will was executed 2 to 4 years prior to the death of Gomanbhai Dullabhbhai Prajapati and after the death of Gomanbhai Dullabhbhai Prajapati, the complainant went to the accused, who was the Talati-cum-Mantri of village Naren Gram Panchyat to get the name of his son Bhimsinh entered in the revenue record of the property. That at that time, the accused asked for the pedigree, original copy of the registered Will and a copy of the death certificate of Gomanbhai Dullabhbhai Prajapati. That the name of Bhimsingh, the son of the complainant was not entered for 2 to 3 months and hence, the complainant thought that the accused wanted some illegal gratification and hence, he met one Jitubhai, who took him to Surat and made an application but he does not know where he had gone and what was the application about. That the name of Bhimsingh, the son of the complainant was not entered for 2 to 3 months and hence, the complainant thought that the accused wanted some illegal gratification and hence, he met one Jitubhai, who took him to Surat and made an application but he does not know where he had gone and what was the application about. The complainant has identified the signature on the complaint produced at Exh.12. That on the next day, he went to Surat and after 2-3 hours, they went to Mandavi. That Jitubhai has placed some amount in his pocket and 7-8 persons went to Mandavi in a vehicle to the residence of the accused. That one person accompanied him and they went to the house of the accused and at that time, he told the accused about the money, but, the accused had refused and thereafter, when the accused went to bring the water, he had placed the tainted currency notes on the table. That at that time, the persons, who had accompanied him, came to the house of the accused and as there was a lot of shouting and lot of noise, he was afraid and came out of the house of the accused and he does not know what had happened thereafter. That the accused has identified the original registered Will but has not identified the muddamal i.e. tainted currency notes. That complainant has been declared hostile and during the lengthy cross-examination, he has not supported the case of the prosecution. That during the cross-examination by the learned advocate for the accused, the complainant had stated that the said Gomanbhai Dullabhbhai Prajapati is not of his caste and is a resident of village Areth. That said Gomanbhai Dullabhbhai Prajapati was married and had a son, who was also married. That village Areth and village Naren had different Gram Panchayats and different Talati-cum-Mantri. That if the name legal heir is required to be entered into the revenue record, a copy of the pedigree is required. The complainant has stated that the accused has demanded for the pedigree and did not demand for any illegal gratification. That village Areth and village Naren had different Gram Panchayats and different Talati-cum-Mantri. That if the name legal heir is required to be entered into the revenue record, a copy of the pedigree is required. The complainant has stated that the accused has demanded for the pedigree and did not demand for any illegal gratification. That he had gone to the office with Jitubhai and he does not know what the papers were about and he had placed the tainted currency notes on the table but as the wind came but the papers which were lying on the table flew on the currency notes. 9.2. The prosecution has examined PW-2 Dahyabhai Javerbhai Chauhan at Exh.21. This witness is the panch witness, who had accompanied the complainant as a shadow witness. The panch witness has stated that he was called on 19.08.2002 to the ACB office and was told to accompany the complainant to the residence of the accused and at that time, they sat on the bench in the house of the accused. That the accused had asked the complainant why he had come here and the complainant had stated that he had come as he wanted to get the name of his son Bhimsingh mutated in the revenue record. That the accused had gone to take water inside and at that time, the complainant took 30 currency notes from his pocket and kept it on the table, which was near the bench and placed the newspaper “Sandesh” on the tainted currency notes. That the accused came with water and at that time, the complainant lit a bidi and threw the stub of the bidi out of the window. That the members of the Raiding Party immediately came and caught the accused and thereafter, he does not know what documents were prepared. The panch witness has identified the signature in the panchnama at Exh.22 and seizure memo at Exh.23 but has not identified the tainted currency notes. That the panch witness has been declared hostile and has been cross examined at length by the learned APP, wherein, he has denied that the complainant had given the tainted currency notes to be paid as bribe in his presence. That the panch witness has been declared hostile and has been cross examined at length by the learned APP, wherein, he has denied that the complainant had given the tainted currency notes to be paid as bribe in his presence. The witness has also denied that the accused had made a sign to the complainant to place the tainted currency notes on a paper, which was lying on the table and the complainant had thereafter placed the tainted currency notes on the paper and the accused had taken the daily newspaper and placed it on the tainted currency notes. 9.3. That the prosecution has examined PW-3 Parbhubhai Dahyabhai Patel at Exh.28 and this witness is the panch witness, who was a member of the Raiding Party. This witness too has not supported the case of the prosecution and has been declared hostile. That during the cross-examination by the learned advocate for the accused, he has stated that no written instruction was given to him to remain as a panch witness. That he was sitting in a room in the ACB office and he does not know as to how the complainant had come to the ACB Office. That the documents were prepared before he had reached the ACB office and he was intimated about the complaint by the officer of the ACB. That he has never seen anthracene powder and does not know anything about anthracene powder or about the ultraviolet lamp test. That in the year 1981, he had met with an accident and was admitted to Jaslok Hospital, Mumbai where he was treated for more than one month. That he had sustained a head injury on the left side and had lost his memory for six months and if he had to remember anything, he had to write it down and his sight was also affected. The witness has categorically stated that he does not know what had happened before he had gone into the house. That he has not dictated anything to the police and the police has prepared the documents, which he had read and signed. That the police had prepared the panchnama and he had read the same and had signed it and before coming to the Court to depose, he had read the panchnama and had memorized it. 9.4. That he has not dictated anything to the police and the police has prepared the documents, which he had read and signed. That the police had prepared the panchnama and he had read the same and had signed it and before coming to the Court to depose, he had read the panchnama and had memorized it. 9.4. The prosecution has examined PW-4 Kirtikumar Manchhabhai Chaudhari at Exh.36 and PW-5 Shravansingh Amarsingh Sardar at Exh.38. These two witnesses are the Trap Laying Officer and the Investigating Officer respectively and they have supported the case of the prosecution. PW-4 Kirtikumar Manchhabhai Chaudhari, the Trap Laying Officer has, in the cross-examination by the learned advocate for the accused, admitted that he did not demand for a copy of the registered Will from the complainant and the complainant had produced a copy of the registered Will and the application to get the name of his son mutated in the revenue record. Moreover, the ultraviolet test was done on both the hands of the accused but no traces of anthracene powder was found on the hands fo the accused . The witness has also admitted that he went into the house and other members of house were also present but the name of the persons, who were present in the house, have not been mentioned in the panchnama. PW-5 Shravansingh Amarsingh Sardar has, in the cross-examination by the learned advocate for the accused, admitted that during the investigation, from the papers available, it has come on record that the accused had not accepted the tainted currency notes with his hands and no traces of anthracene powder was found on the hands of the accused. Moreover, the witness has also admitted that he had sent a draft of the sanction order along with the papers for prosecution to the competent authority. 10. In the further statement under Section 313 of the Code, the accused had denied that he had demanded any amount of money from the complainant and he has also stated that the complainant had shown the registered Will and had stated that name of his son had to be entered in the revenue record on the basis of the registered Will and he had to do the necessary procedure, but the complainant was not ready and the complainant immediately wanted to get the name of his son mutated in the revenue record. That the accused told him to come to the office and when the complainant had asked for water, the accused went inside the room to bring water and at that time, the complainant had without his knowledge placed the amount on the table and covered it with the daily newspaper. That after the accused came with the water and sat down, suddenly 8 to 10 persons came into the house. That the accused has been falsely implicated in the offence. That the accused has not accepted any amount and the test of ultraviolet lamp was done and no traces of anthracene powder were found on his hand. 11. That the learned Trial Court has, in the impugned judgment and order, discussed the entire evidence of the prosecution and has observed that the complaint itself is doubtful and in the evidence of prosecution, there is no demand by the accused. Moreover, the learned Trial Court has also observed that a copy of the application that was made to enter the name of the son of the complainant in the revenue record has been seized by the Investigating officer but it does not appear that deceased Gomanbhai Dullabhbhai Prajapati, who had a married son, would execute any registered Will in favour of the son of the complainant as they are of different caste and are residing in different villages. Moreover, the complainant had turned hostile and has not supported the case of the prosecution and the complainant has clearly stated that no demand of any illegal gratification was made by the accused but the accused had demanded the registered Will, a copy of the pedigree and also a copy of the death certificate of deceased Gomanbhai Dullabhbhai Prajapati. Moreover, it has clearly come on record that the panchnama was not dictated by the panch witnesses and has been signed mechanically and PW-2 Dahyabhai Zaverbhai Chauhan, who was the shadow witness, has also deposed to the effect that at the time of trap, no demand of any illegal gratification was made by the accused and the accused had demanded for the registered Will, a copy of the pedigree and also a copy of the death certificate of deceased Gomanbhai Dullabhbhai Prajapati. Moreover, the panch witness has also stated that when the accused went into the other room to get water, the complainant took out the tainted currency notes from his pocket and placed it on the table near the bench and thereafter, placed the daily newspaper ‘Sandesh’ on the tainted currency notes. That the accused was completely unaware about the placing of the tainted currency notes on the table and the daily newspaper ‘Sandesh’ were placed by the complainant on the top of the tainted currency notes. That in the entire evidence, the demand and acceptance of the illegal gratification is not proved and it is settled principles of law that merely proof of recovery is not sufficient to prove demand and acceptance. PW-3 Parbhubhai Dahyabhai Patel was not present at the time of demand and acceptance and his evidence is not trustworthy as he has clearly stated that he was having some health problems and could not remember certain things and he had read the panchnama and memorize the same before his deposition. Moreover, it has also emerged from his evidence that the panch witnesses have not dictated any panchnama to the police and the panchnama was prepared by the police and they had mechanically signed the same. In the evidence of the complainant, it has emerged that one Jitubhai had taken the complainant to the ACB office and Jitubhai was the person, in whose presence, the application was written but the prosecution has not examined any person named Jitubhai during the trial. Moreover, the complainant has not deposed anything about what had happened after the members of the Raiding Party had entered into the house of the accused. In the entire evidence, the prosecution has not proved demand and acceptance of any tainted currency notes from the possession of the accused, which is sine qua non to establish the guilt of the accused. If the circumstantial evidence is perused, it appears that there is no iota of evidence to show that any demand was made by the accused either prior to the trap or during the trap and even though, the complainant had turned hostile, there is iota of evidence to prove the demand or acceptance made by the accused. 12. If the circumstantial evidence is perused, it appears that there is no iota of evidence to show that any demand was made by the accused either prior to the trap or during the trap and even though, the complainant had turned hostile, there is iota of evidence to prove the demand or acceptance made by the accused. 12. In view of the settled position of law in the decisions of the case of Mallappa (Supra) and Neeraj Dutta (Supra) and appraisal of the evidence produced by the prosecution, the reasons assigned by the learned Trial Court are reasonable and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused of the charges levelled against him. The findings recorded by the learned Trial Court are absolutely just and proper and no illegality or infirmity has been committed and this Court is in complete agreement with the findings, ultimate conclusion and the resultant order of acquittal recorded by the learned Trial Court. 13. This Court finds no reason to interfere with the impugned judgment and order and the present appeal is devoid of merits and resultantly, the same is dismissed. The impugned judgment and order of acquittal dated 21.04.2010 passed by the learned 5th Additional District and Sessions Judge, Surat in Special (ACB) Case No. 24 of 2003 is hereby confirmed. Bail bonds stand cancelled. 14. Record and proceedings be sent back to the concerned Trial Court forthwith.