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Gujarat High Court · body

2024 DIGILAW 563 (GUJ)

Kachubhai Shanubai Machi v. State of Gujarat

2024-03-18

S.V.PINTO

body2024
JUDGMENT : S.V. PINTO, J. 1. This appeal has been filed by the appellant under Section 374 of Code of Criminal Procedure, 1973 against the judgment and order passed by the learned Special Judge, Fast Track Court No. 2, Rajpipla, District Bharuch (hereinafter referred to as “the learned Trial Court”) in Special Corruption Case No. 1 of 1996 on 21.06.2004, whereby, the learned Trial Court has convicted the appellant for the offence punishable under Sections 7, 13(1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the PC Act”). The appellant 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 accused was working as an Assistant Labour Officer and Minimum Wages Inspector at Rajpipla, District Bharuch in the year 1995 and is physically handicapped and permanently disabled. That the complainant Ravjibhai Dahyabhai Patel and his father Dahyabhai Antolbhai Patel were served with a notice dated 04.07.1995 and were summoned by the accused to the office along with the record of agricultural labourers. That the complainant and his father could not remain present and another notice was issued on 17.07.1995 calling them to remain present before the accused on 24.07.1995. That the complainant had gone to the office of the accused on 19.07.1995 and met the accused and at that time, the accused demanded an illegal gratification of Rs. 50/- per notice to file the notice and thus, an amount of illegal gratification of Rs. 100/- was demanded and the accused had told the complainant to pay the amount on 24.07.1995. That the complainant did not want to pay the amount and went to the ACB Police Station at Bharuch and filed the complaint which was registered as C.R. No. 5 of 1995 on 24.07.1995 under Sections 7, 13(1)(d) and 13(2) of the PC Act. That the Trap Laying Officer called the panch witnesses and after explaining the procedure of anthracene powder and UV Lamp, the trap was laid on 24.07.1995 and accused demanded and accepted the amount of illegal gratification in presence of the panch witnesses in Amiri Electric Store at Rajpipla. That the Trap Laying Officer called the panch witnesses and after explaining the procedure of anthracene powder and UV Lamp, the trap was laid on 24.07.1995 and accused demanded and accepted the amount of illegal gratification in presence of the panch witnesses in Amiri Electric Store at Rajpipla. That the Investigating Officer investigated the offence and after getting the necessary sanction from the competent authority, a charge-sheet was filed before the Sessions Court, Bharuch which was registered as Special Case No. 1 of 1996. 2.2. That the accused was 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, the charge was framed by the learned Trial Court at Exh.7 and the statement of the accused was recorded at Exh.8. 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: S. No. PW Particulars Exhibit 1 1 Sonusinh Devjibhai Vasava 35 2. 2 Ravjibhai Dahyabhai Patel 54 3. 3 Mathurbhai Desaibhai Vasava 62 4. 4 Jayendrabhai Naginbhai Patel 63 5. 5 Vedubhai Bhivsanbhai Mahale 67 6. 6 Vasantrao Kisanrao Valekar 70 7. 7 Haribhai Vallabbhai Patel 79 8. 8 Abdul Aziz Mohammadbhai Jamsa 87 9. 9 Ganeshji Mahotji Solanki 92 2.4 The prosecution also produced the following documentary evidence to bring home the charge against the accused: S. No. Particulars Exhibit 1. Complaint 59 2. Panchnama 45 3. Notice dated 17.07.1995 41 4. Sanction 81 2.5 That after the closing pursis was submitted by the learned APP at Exh.94, further statement of the accused under Section 323 of Code of Criminal Procedure was recorded, wherein, the accused denied all the allegations and the evidence on record and further stated that he wanted to examine defence witnesses and examined Hibtula Fajelhussain Amri-the owner of Amiri Electric Store at Exh.98 and Bachubhai @ Ishwarbhai Patel at Exh.100. 2.6 That after the arguments of both the parties were heard and by an order dated 21.06.2004, the learned Trial Court was pleased to convict the accused and sentenced the accused to rigorous imprisonment of six months and fine of Rs. 2.6 That after the arguments of both the parties were heard and by an order dated 21.06.2004, the learned Trial Court was pleased to convict the accused and sentenced the accused to rigorous imprisonment of six months and fine of Rs. 500/- and in default, 30 days simple imprisonment for the offence under Section 7 of the PC Act and to rigorous imprisonment of one year and fine of Rs. 500/- and in default, 30 days simple imprisonment for the offence under Section 13(1)(d) read with Section 13(2) of the PC Act. The learned Trial Court ordered that the accused shall undergo both the sentences concurrently. 3. Being aggrieved by and dissatisfied with the said judgment and order, the accused has filed the present appeal mainly stating that the complainant had not gone to meet the accused before 24.07.1995 and there was no occasion or reason to demand for the amount of Rs. 100/- to file the two notices. That as per the case of prosecution, the complainant had gone to meet the accused on 19.07.1995 after the notices were served upon him and at that time, the accused had demanded the amount of Rs. 50/- per notice but there is no reason as to why the petty amount of Rs. 100/- was not accepted on 19.07.1995 itself and the acceptance of bribe amount of Rs. 100/- was deferred to after five days. Moreover, the complainant was a resident of village Karantha of taluka Nanded which is situated at a distance of approximately 100 kms away from Rajpipla and hence, only to pay the amount of Rs. 100/- the complainant would travel for such a long distance, is not believable. Moreover, the complainant has stated that the demand of Rs. 100/- was made at about 08.00 am in the government office of Assistant Labour Officer at Rajpipla but it is well known that no government office would open before 10.30 am on any working day. That on 24.07.1995, when the complainant had gone to the office of Assistant Labour Officer at Rajpipla, the accused was not available in the office and on inquiry, it was found that the accused had gone to Amiri Electric Store and the complainant saw the accused sitting in Amiri Electric Store and the owner of the shop was not present. That on 24.07.1995, when the complainant had gone to the office of Assistant Labour Officer at Rajpipla, the accused was not available in the office and on inquiry, it was found that the accused had gone to Amiri Electric Store and the complainant saw the accused sitting in Amiri Electric Store and the owner of the shop was not present. The accused has put up a case that as it was raining on 24.07.1995 and he could not go up to his office which was on the first floor due to his physical handicap, he was sitting in Amiri Electric Store and at that time, the complainant came to the store and the complainant had earlier purchased electric goods of Rs. 100/- and had to pay to the owner of Amiri Electric Store the outstanding amount of Rs. 100/- and that amount was paid to the accused to be handed over to the owner of Amiri Electric Store. 3.1 That the accused has examined two witnesses to prove his case but the learned Trial Court has not considered the evidence put up by the accused and even though the demand has not been proved beyond reasonable doubts, the learned Trial Court has convicted the accused. That the story put up by the complainant is not believable and even if the evidence is perused, the complainant has stated that the accused had immediately affixed his signatures on the book where his signatures had to be affixed and if the accused wanted the amount of illegal gratification, he would have demanded for the same prior to affixing his signatures. That this evidence goes to prove that the conduct and intention of the complainant were not genuine and the complainant has concocted a false story. That the impugned judgment and order passed by the learned Trial Court is against the evidence on record and hence, deserves to be quashed and set aside and the accused must be acquitted for the said offences. 4. Heard learned advocate Mr. P.P. Majmudar for the appellant and learned APP Mr. Bhargav Pandya for the respondent/State. 5. Learned advocate Mr. P.P. Majmudar has submitted that the prosecution has not proved the demand and acceptance is also doubtful. 4. Heard learned advocate Mr. P.P. Majmudar for the appellant and learned APP Mr. Bhargav Pandya for the respondent/State. 5. Learned advocate Mr. P.P. Majmudar has submitted that the prosecution has not proved the demand and acceptance is also doubtful. The prosecution has examined the panch witness who had accompanied the complainant and the panch witness has stated that when he went with the complainant to the office of the accused, they did not find the accused there and on inquiry, it was found that the accused is sitting Amiri Electric Store. That the complainant and the panch witness went to Amiri Electric Store and at that time, the accused was busy with some other person and had asked them to wait for some time. That the accused had thereafter called the complainant and had asked him why he had come to which the complainant showed the notice dated 17.07.1995 issued to him. That the complainant showed the Register of Labourers, wherein, after checking, the accused had put his signature on the last page. That before affixing the signature, no demand of any illegal gratification was made by the complainant and after the signatures of the accused were affixed, the complainant had asked the accused ‘what is to be given’ and thereafter, the complainant had handed over the tainted currency notes. From this deposition, the story of the prosecution is doubtful as if the accused had demanded the amount of bribe on a prior occasion, he would not have asked the complainant as to why he had come and he would also have demanded for the illegal gratification before affixing his signature on the books. That the case of prosecution is highly doubtful as there is no evidence that the complainant and his father met the accused on 19.07.1995 and if the complainant had met the accused on 19.07.1995, he would have paid the petty amount of Rs. 100/- on the same day and would not have deferred the payment for five days. That there are major contradictions in the depositions of the panch witnesses and the panch witness no. 2 has been declared hostile and has not supported the case of the prosecution. 100/- on the same day and would not have deferred the payment for five days. That there are major contradictions in the depositions of the panch witnesses and the panch witness no. 2 has been declared hostile and has not supported the case of the prosecution. Moreover, it has also come on record from the deposition of PW-3 Mathurbhai Devsibhai Vasava-the Talati Cum Mantri that the notice was served to the complainant on 18.07.1995, whereas, the complainant states that he was served with the notice on 17.07.1995. That in the statement recorded under Section 323 of Code of Criminal Procedure, the accused has stated that he is suffering from Polio and could not walk and on the day of trap, it was raining and he got drenched and could not climb and go to his office which was situated on the first floor and therefore, he was sitting in Amiri Electric Store and at that time, the complainant came and asked for the owner of Amiri Electric Store. That as the owner was not present in the shop, the accused had asked him what work he had and the complainant had stated that he had to make payment of Rs. 100/- for electric items purchased by him on credit and the complainant gave the amount of Rs. 100/- to the accused which was to be given to the owner of Amiri Electric Store. That the accused has examined two witnesses to prove his fact and witness Hibtula Fajelhussain Ameri who is the owner of Amiri Electric Store where the trap was laid, has been examined by the accused as defence witness no. 1 and he has produced evidence to show that the complainant had purchased two tubelights sticks and two starters worth Rs. 100/- on credit but the defence witness no. 2 Bachubhai Patel, examined by the accused has also stated that he had asked defence witness no. 1 Hibtula Fajelhussain Ameri to give electric goods on credit to the complainant and the amount that was accepted by the accused was the amount that was to be paid to Hibtula Fajelhussain Ameri-owner of Amiri Electric Store by the complainant for electric goods that had been taken on credit. 1 Hibtula Fajelhussain Ameri to give electric goods on credit to the complainant and the amount that was accepted by the accused was the amount that was to be paid to Hibtula Fajelhussain Ameri-owner of Amiri Electric Store by the complainant for electric goods that had been taken on credit. That the prosecution has not proved the demand and acceptance beyond reasonable doubts and the accused who is about 81 years old and is a disabled person must be acquitted in the interest of justice. 5.1 Learned advocate Mr. P.P. Majmudar has relied on the judgment of the Hon’ble Apex Court in case of Neeraj Dutta vs. State (Govt. of NCT of Delhi), 2022 (0) Supreme (SC) 1248. 5.2 Learned APP Mr. Bharav Pandya for the State has submitted that the prosecution has proved the case beyond reasonable doubt and the learned Trial Court has appreciated all the evidences properly. That as per the case of prosecution, the bribe demand was made on 19.07.1995, when the complainant had gone to the office of Assistant Labour Officer and at that time, the accused had demanded for Rs. 50/- each for the two notices and in all Rs. 100/- to file the notices. That the trap was laid and in the presence of panch witness no. 1, the accused had once again demanded the amount and the tainted currency notes laced with anthracene powder were recovered from the custody of the accused. That the prosecution has proved the case against the accused beyond reasonable doubt and the learned Trial Court has considered all the evidences in its true perspective. That no order of interference is required in the judgment and order and the appeal of the appellant must be rejected and the judgment and order of conviction must be confirmed. 6. At the outset, before appraisal of the evidences produced by the prosecution before the learned Trial Court, it would be appropriate to refer to observations of the Hon’ble Apex Court in the case of Neeraj Datta (supra), wherein, the Hon’ble Apex Court in Para 68 has observed as under: “68. 6. At the outset, before appraisal of the evidences produced by the prosecution before the learned Trial Court, it would be appropriate to refer to observations of the Hon’ble Apex Court in the case of Neeraj Datta (supra), wherein, the Hon’ble 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 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. (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.” 7. To bring home the charge against the accused, the prosecution has examined PW-1 Sonusinh Devjisinh Vasava and the witness is the panch witness who was the shadow witness along with the complainant Ravjibhai Dahyabhai Patel at the time of raid. The witness has stated that on 24.07.1995, he had gone to the ACB Office along with Gulammustufa Noor Mohammad Shaikh and they both were working as Sales Tax Inspectors and had gone to the ACB Office where the ACB Inspector explained to them about the trap procedure and conducted the experiment of anthracene powder and the ultraviolet lamp. That the complainant Ravjibhai Dahyabhai Patel was also present and he had given two currency notes of Rs. 50/- each to the ACB Inspector and the currency notes were laced with anthracene powder and placed in the left side pocket of the jacket of the complainant. That the ACB Inspector gave the necessary instructions to all concerned and that complainant and the witness went to the office of the Assistant Labour Officer. That at that time, the accused was not in his office and they inquired his whereabouts from the peon who told them that the accused was sitting in Amiri Electric Store on the ground floor and working there as he was handicapped. That the complainant and the witness came to Amiri Electric Store where they found the accused and two farmers and the accused told them to wait for some time. That after the farmers went away, the accused called the complainant and the complainant showed the two notices to the accused. That the complainant and the witness came to Amiri Electric Store where they found the accused and two farmers and the accused told them to wait for some time. That after the farmers went away, the accused called the complainant and the complainant showed the two notices to the accused. That the accused told the complainant why he was not remaining present in spite of the notices and the complainant handed over the Register of Labourers and the accused signed it and immediately returned it to the complainant. That thereafter, the complainant asked the accused what has to be given and the accused had demanded for the amount and the complainant took the tainted currency notes and gave it to the accused who took it and put it in his left side shirt pocket. That the complainant came out and gave the predetermined signal and the members of the raiding party came and thereafter, the procedure was done, wherein, traces of anthracene powder was found on the right hand, fingers and thumb of the accused and the fingers and thumb showed light blue florescent marks. That the ultra-violent lamp test was also done on the shirt pocket and light blue florescent marks were also found on the shirt pocket of the accused. That along with the two tainted currency notes of Rs. 50/- one note of Rs. 10/- was also found from the pocket of the accused and that note was also seized by the Investigating Officer. That the panchanama and seizure memo were drawn and the shirt of the accused was also seized by the Investigating Officer. During the cross-examination by the learned advocate for the accused, the witness has stated that when they went to the office of Labour Officer, they did not find him in the office and they were there in the office for about five minutes. That when they went to Amiri Electric Store, they found the accused present there but the owner of Amiri Electric Store was not present. 7.1 The prosecution has examined PW-2/Ravjibhai Dahyabhai Patel at Exh.54 and this witness is the complainant who has stated that he had got the notice on 17.07.1995 and on 19.07.1995, he went to the office of accused at around 08.30 am. 7.1 The prosecution has examined PW-2/Ravjibhai Dahyabhai Patel at Exh.54 and this witness is the complainant who has stated that he had got the notice on 17.07.1995 and on 19.07.1995, he went to the office of accused at around 08.30 am. That at that time, he met the accused and the accused had told him to come on 24.07.1995 and had demanded an amount of Rs. 50/- per notice i.e. Rs. 100/- for both the notices and that he would file the notices if Rs. 100/- was paid. That he had filed the complaint on 21.07.1995 and was called on 24.07.1995 to the ACB Office where the panch witnesses were called and the entire procedure was explained to them. That the trap was laid and he went with panch no. 1 Sonusinh Devjisinh Vasava to the office of the accused but the accused was not there and on inquiry, they were informed that the accused was sitting in Amiri Electric Store on the ground floor and he and panch witness Sonusinh Devjisinh Vasava went to Amiri Electric Store. That he met the accused and the accused affixed his signatures on the Register of Labourers and thereafter, demanded for the illegal gratification of Rs. 100/- which was given to the accused and thereafter, the complainant gave the predetermined signal and the members of the raiding party came and caught the accused red handed. During the cross-examination, the complainant has stated that when they went to Amiri Electric Store, two farmers were present there and when he was called by the accused, the accused had first asked him as to why he had come. That he had given the notices to the accused and thereafter, he had given the Register of Labourers to the accused and the accused immediately affixed his signature on the last page and put his rubber stamp and returned it to him. That the accused had told him to give whatever amount he was giving and hence, he took the tainted currency notes from the pocket of his jacket and gave it to the accused who took the tainted currency notes and put it in the left side of his shirt pocket. That the accused had told him to give whatever amount he was giving and hence, he took the tainted currency notes from the pocket of his jacket and gave it to the accused who took the tainted currency notes and put it in the left side of his shirt pocket. That the panch witness had given the predetermined signal and the members of the raiding party came and at that time, the complainant was standing outside of Amiri Electric Store and the members of the raiding party and the panch witness no. 2 were in the shop. That he does not know what had taken place after that and he was asked to sit at the toll point and hence, he sat at the toll point and he saw the tainted currency notes with light blue florescent lights and one note of Rs. 10/- which also had light blue florescent light on it. The witness has not supported the case of the prosecution and has been declared hostile by the learned Trial Court and has been cross-examined at length by the learned APP, wherein, the complainant has admitted that the police had recorded his statement on 26.07.1995 and in the statement he has narrated as to what had taken place. During the cross-examination by the learned advocate for the accused, the complainant has stated that he had gone to the ACB Office on 19.07.1995 at around 02.30-03.00 pm and he had told the ACB Police Officers about the accused and one police man named Sitaram had advised him to file the complaint. That he went to his residence at village Karantha and Constable Sitaram had called him on 24.07.1995 and hence, had gone to the ACB Office on 24.07.1995. That on the day of the raid i.e. on 24.07.1995, it was raining and only the peon was present in the office of Assistant Labour Officer. After inquiry from the peon, he came down to Amiri Electric Store and at that time, the owner of Amiri Electric Store was not present in the shop but he found the accused who was drenched in rain water and was shivering. After inquiry from the peon, he came down to Amiri Electric Store and at that time, the owner of Amiri Electric Store was not present in the shop but he found the accused who was drenched in rain water and was shivering. The complainant has also admitted that the accused had given him and his father notices on a number of occasions to produce the relevant registers but he had not taken the registers and the extract of 5(c) but he had taken his father’s extract of 5(c). That after the date of raid, he has not gone to the office of the ACB and he had no work in the office of the accused on 19.07.1995. 7.2 The prosecution has examined PW-3/Mathurbhai Desaibhai Vasava at Exh.62 who has stated that he had served the notices to the farmers of Karantha village on 18.07.1995. 7.3 The prosecution has examined PW-4/Jayendrabhai Naginbhai Patel at Exh.63. This witness was the Talati Cum Mantri of Karantha village in the year 1995 and he has produced the village Form No. 8A of the agricultural lands of the complainant and his father Dahyabhai Antolbhai Patel at Exh.64. 7.4 The prosecution has examined PW-5/Vedubhai Bhivsanbhai Mahale at Exh.67 and this witness is the Police Constable and member of the raiding party and PW-6/Vasantrao Kisanrao Valekar at Exh.70 who is the Trap Laying Officer of the raid. Both the witnesses have supported the case of prosecution and have narrated the entire sequence of events that had taken place on the date of the trap. During the cross-examination of PW-6/Vasantrao Kisanrai Valekar-the Trap Laying Officer, the witness has admitted that at the time of the raid, the statement of the accused was taken, wherein, he has stated that the complainant had to pay an amount of Rs. 100/- to the owner of Amiri Electric Store Ibu Shaikh and the amount was taken from the complainant to pay Ibu Shaikh. 7.5 The prosecution has examined PW-7/Haribhai Vallabhbhai Patel and this witness is the Labour Commissioner who had given the sanction for prosecution which is produced at Exh.81. 7.6 The prosecution has examined PW-8/Abdul Aziz Mohammadbhai Jamsa at Exh.87 and PW-9/Ganeshji Mahotji Solanki who are the Investigating Officers and they have supported the case of the prosecution. 8. 7.5 The prosecution has examined PW-7/Haribhai Vallabhbhai Patel and this witness is the Labour Commissioner who had given the sanction for prosecution which is produced at Exh.81. 7.6 The prosecution has examined PW-8/Abdul Aziz Mohammadbhai Jamsa at Exh.87 and PW-9/Ganeshji Mahotji Solanki who are the Investigating Officers and they have supported the case of the prosecution. 8. In the statement recorded under Section 313 of Code of Criminal Procedure, the accused denied all the evidences against him and stated that he wanted to examine witnesses on his behalf and the accused has examined defence witness no. 1-Hibtula Falzehussain Amiri at Exh.98. This witness is the owner of Amiri Electric Store and he has stated that he does not know the complainant Ravjibhai Dahyabhai Patel of Karantha village but Rajvibhai had come to his shop to purchase tubes and starters and was asking for credit and on the say of Bachubhai Dhanpurwala he had given two lubelights and two starters to Ravjibhai Dahyabhai Patel on credit. That he had made an entry in his books of accounts and he is known to the accused as the office of the accused on the first floor. That ACB P.I. Valekar has seized his books of accounts and bills and has identified the documents produced at Exh.99 which was seized by ACB P.I. Valekar which shows that two tubes of Philips and two starters were given to Ravjibhai Dahyabhai Patel on the say of Bachubhai Patel and an amount of Rs. 100/- was outstanding. The accused has also examined defence witness no. 2 Bachubhai @ Ishwarbhai Chhotabhai Patel at Exh.100 and this witness has stated that he is known to the complainant Ravjibhai Dahyabhai Patel as he is from Karantha village. That he is also known to Ibu Shaikh who is the owner of Amiri Electric Store and complainant the Ravjibhai wanted electric tubes and starters and he had told Ibu Shaikh to give the goods on credit to the complainant. That the police had recorded his statement. 9. In the entire evidence of prosecution, the demand made by the accused on 19.07.1995 has not come on record and it is the case of prosecution that an amount of Rs. 100/- was demanded by the accused as illegal gratification from the complainant on 19.07.1995. That the police had recorded his statement. 9. In the entire evidence of prosecution, the demand made by the accused on 19.07.1995 has not come on record and it is the case of prosecution that an amount of Rs. 100/- was demanded by the accused as illegal gratification from the complainant on 19.07.1995. The complainant has stated that he has received the notice on 17.07.1995 but in the deposition of PW-3/Mathurbhai Desaibhai Vasava at Exh.62, it is proved that the notice was received by the complainant on 18.07.1995. Moreover, as the notice mentioned that the complainant has to go the office of the accused on 24.07.1995, there was no reason for the complainant to go to the office of the accused at 08.30 am on 19.07.1995. There is no iota of evidence to show that the complainant had in fact gone to the office of the accused on 19.07.1995 and there is no clarification as to where the accused sitting in the office at 08.30 am on 19.07.1995. In the evidence of the prosecution, there is also no clear demand made by the accused on 24.07.1995 on the day of the trap and in the evidence of the complainant as well as the evidence of the shadow witness-Sonusinh Devjibhai Vasava, it is proved that when the complainant went to meet the accused, the accused has asked him as to why he had come. That if the accused had made a prior demand, then he would have directly asked for the amount of illegal gratification from the complainant but in the deposition of the complainant, it has come on record it was raining on 24.07.1995 and the accused was completely drenched and was shivering and had affixed his signature on the last page of the Register of the complainant and had immediately handed it back. The defence of the accused is that the complainant Ravijbhai Dhayabhai Patel had taken two tubes and two starters on credit from Hibtula Fajelhussain Amiri-owner of Amiri Electric Store and the bill was seized by the Investigating Officer on 24.07.1995 i.e. on the day of the trap. The defence of the accused is that the complainant Ravijbhai Dhayabhai Patel had taken two tubes and two starters on credit from Hibtula Fajelhussain Amiri-owner of Amiri Electric Store and the bill was seized by the Investigating Officer on 24.07.1995 i.e. on the day of the trap. The accused has examined Hibtula Fajelhussain Amiri-owner of Amiri Electric Store at Exh.98 and he has stated that he had given two tubelights and two starters to the complainant-Ravjibhai Dahyabhai Patel on credit on the say of Bachubhai @ Ishwarbhai Chhotabhai Patel and the said Bachubhai @ Ishwarbhai Chhotabhai Patel has been examined by the accused at Exh.100. The probable defence of the accused that the amount was due to the owner of Amiri Electric Store for goods that were taken on credit by the complainant Ravjibhai Dahyabhai Patel, is a plausible one and from the evidence of prosecution, it is proved that on the date of incident, when the statement of the accused was recorded, at that time, the accused has stated that the amount was taken to be given to Hibtula Fajelhussain Amiri-the owner of Amiri Electric Store for the goods taken on credit by the complainant. Even otherwise, the prosecution has not proved the demand made by the accused on 19.07.1995 and 24.07.1995 beyond reasonable doubts which is a sine qua non in order to establish the guilt of the accused. That it has come on record that the accused had first affixed his signature and if the accused had in fact demanded for any illegal gratification, he would have demanded for the amount at the first instance before affixing his signature on the Register. That in the entire oral and documentary evidence, the demand of illegal gratification is not proved by the prosecution beyond reasonable doubts and the plausible defence raised by the accused is in fact proved by the document produced at Exh.99. 10. There are no circumstances brought on record by the prosecution to prove the demand for gratification and ingredients of offence under Section 7 of the PC Act have not been established by the prosecution beyond reasonable doubts and consequently, the offence under Section 13(1)(d) read with Section 13(2) of the PC Act will not be attracted and the appeal succeeds. There are no circumstances brought on record by the prosecution to prove the demand for gratification and ingredients of offence under Section 7 of the PC Act have not been established by the prosecution beyond reasonable doubts and consequently, the offence under Section 13(1)(d) read with Section 13(2) of the PC Act will not be attracted and the appeal succeeds. The impugned judgment and order of the learned Trial Court in Special Corruption Case No. 1 of 1996 on 21.06.2004 is quashed and set aside. The appellant is acquitted from all the charges levelled against him. Bail bond, if any, stands cancelled. Record and Proceedings be sent back to the Trial Court forthwith.