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Gujarat High Court · body

2024 DIGILAW 637 (GUJ)

Maheshbhai Shivlal Khira v. State of Gujarat

2024-03-26

S.V.PINTO

body2024
JUDGMENT : S.V. PINTO, J. 1. Both these criminal appeals are arising out of the same impugned judgment and order in Sessions Case (ACB) No. 8 of 1995 passed by the learned Additional Sessions Judge, 7th Fast Track Court, Rajkot on 15.06.2005 and therefore, both these appeals are being decided by this common judgment. 2. Criminal Appeal No. 1351 of 2005 has been filed under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) by the appellant-original accused against the judgment and order of conviction in Sessions Case (ACB) No. 8 of 1995 passed by the learned Additional Sessions Judge, 7th Fast Track Court, Rajkot (hereinafter referred to as ‘the learned Trial Court’) on 15.06.2005, whereby, the learned Trial Court has convicted the appellant for the offences punishable under Sections 7, 13(1)(d) 1, 2, 3 read with 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the P.C. Act’). The appellant of Criminal Appeal No. 1351 of 2005 and the respondent of Criminal Appeal No. 2506 of 2005 is hereinafter referred to as ‘the accused No. 1’ as he stood in the original case, for the sake of convenience, clarity and brevity. 3. Criminal Appeal No. 2506 of 2005 has been filed by the Appellant-State under Section 377 of the Code against the impugned judgment and order of conviction in Sessions Case (ACB) No. 8 of 1995 passed by the learned Additional Sessions Judge, 7th Fast Track Court, Rajkot for enhancement of the sentence of the respondent-the appellant of Criminal Appeal No. 1351 of 2005. 4. Criminal Appeal No. 2507 of 2005 has been filed by the appellant-State under Section 378(1)(3) of the Code against the impugned judgment and order of acquittal in Sessions Case (ACB) No. 8 of 1995 passed by the learned Additional Sessions Judge, 7th Fast Track Court, Rajkot, wherein, the accused No. 2 was acquitted. During pendency of the appeal, the accused No. 2 has expired and by order dated 12.06.2023, the appeal qua accused No. 2 has been disposed of as abated. 5. The relevant facts leading to filing of the present appeals are as under: 5.1. During pendency of the appeal, the accused No. 2 has expired and by order dated 12.06.2023, the appeal qua accused No. 2 has been disposed of as abated. 5. The relevant facts leading to filing of the present appeals are as under: 5.1. That the accused No. 1 was working as an Additional Public Prosecution in the Court of the learned Judicial Magistrate First Class, Rajkot and the accused No. 2 was working as a police constable in the police department, Rajkot and were the public servants. That truck bearing registration No. GTX 8496 was in the ownership of the complainant Viraf Nadarshah was seized by the Rajkot Taluka Police Station for the offences under the Prohibition Act in connection with C.R. No. 102 of 1993 and the complainant Viraf Nadarshah made an application for releasing the truck before the Court of the learned Judicial Magistrate First Class, Rajkot. The accused No. 1, who was the Additional Public Prosecutor, had demanded an amount of Rs. 5,000/- as illegal gratification to give a positive opinion for releasing the muddamal truck and as the complainant did not want to give the amount of illegal gratification, he went to the ACB Police Station at Ahmedabad and filed the complaint under Sections, 7, 13(1)(d) 1, 2, 3 and 13(2) of the P.C. Act on 16.12.1993 at around 14.30 hours. That on the day of the trap, the accused No. 1 had demanded the amount of illegal gratification outside the court compound near Seva Transport Company and made a sign that the amount of illegal gratification be given to the accused No. 2, who accepted the amount of illegal gratification and the same was recovered from the custody of the accused No. 2. Both the accused were caught red handed by the members of the raiding party after the complainant had given the predetermined signal and after due investigation, a charge sheet came to be filed before the learned Sessions Court, Rajkot, which was registered as Sessions Case (ACB) No. 8 of 1995. 5.2. Both the accused were caught red handed by the members of the raiding party after the complainant had given the predetermined signal and after due investigation, a charge sheet came to be filed before the learned Sessions Court, Rajkot, which was registered as Sessions Case (ACB) No. 8 of 1995. 5.2. The accused were duly summoned and after following the procedure of Section 207 of the Code of Criminal Procedure, a charge was framed by the learned Trial Court at Exh.35 and the statements of the accused were recorded at Exh.36 and 37 respectively, wherein, both the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. After the closing pursis was submitted by the learned APP at Exh.102, the further statements of the accused under Section 313 of the Code of Criminal Procedure were recorded and the arguments of the learned APP and learned advocate for the accused were heard and the learned Trial Court, by the impugned judgment and order dated 15.06.2005, convicted the accused No. 1 and sentenced him to rigorous imprisonment for 6 months and fine of Rs. 500/- and in default, rigorous imprisonment of 1 month for the offence punishable under Section 7 of the P.C. Act and rigorous imprisonment of 1 year and fine of Rs. 1,000/- and in default, rigorous imprisonment of 2 month for the offences punishable under Sections 13(1)(d) 1, 2, 3 and 13(2) of the P.C. Act. The learned Trial Court was pleased to acquit the accused No. 2 from all the offences. 6. Being aggrieved and dissatisfied with the impugned judgment and order of conviction passed in Sessions Case (ACB) No. 8 of 1995 passed by the learned Additional Sessions Judge, 7th Fast Track Court, Rajkot on 15.06.2005, the appellant-accused No. 1 has filed Criminal Appeal No. 1351 of 2005 mainly contending that the learned trial Court has not appreciated the evidence on record as per the settled principles of law of Criminal Jurisprudence as the appellant has never demanded or accepted any amount of illegal gratification and there is no reliable and impeachable evidence produced by the prosecution. The learned Trial Court has mainly drawn inference against the defence and in favour of the prosecution even though, there is no demand of bribe amount and there is no fixed date, time and place of demand. The learned Trial Court has mainly drawn inference against the defence and in favour of the prosecution even though, there is no demand of bribe amount and there is no fixed date, time and place of demand. The co-accused, who has been acquitted, had accepted the amount of illegal gratification as per the case of the prosecution but there are serious discrepancies in the evidence in showing the traces of anthracene powder on the hands of the co-accused, who has been acquitted. Admittedly, as per the case of the prosecution, as the trap failed and the currency notes were not tainted with anthracene powder during the second trap. As per the case of the prosecution, the co-accused was holding the currency notes in his hands while the members of the raiding party rushed in for the trap and both the accused were taken to the circuit house from outside the court compound. The learned Trial Court has not appreciated that the accused would not accept the illegal gratification in a public place in broad day light instead of selecting some lonely place and the motive has not been proved by the prosecution. It is settled principles of law in cases under the P.C. Act that demand and acceptance must be strictly proved through independent witnesses to shift the burden on the accused and the panch witness should not be selected ones known either to the complainant or to the members of the raiding party. The panch witness has clearly deposed that he has not heard that any demand made by the accused No. 1. Even the recovery is not consistent and the learned Trial Court has failed to appreciate the three ingredients i.e. demand, acceptance and recovery on the basis, upon which the whole case of the prosecution hinges. The learned Trial Court has not appreciated the evidence of the panch witnesses, which is contrary to the material aspect of demand, acceptance and recovery and in fact, adverse inference ought to have been drawn against the prosecution. The sanction for prosecution is defective and suffers from non-application of mind and the number of the truck is wrongly mentioned in the sanction order and hence, the whole case of the prosecution fails. The sanction for prosecution is defective and suffers from non-application of mind and the number of the truck is wrongly mentioned in the sanction order and hence, the whole case of the prosecution fails. There is no corroboration of any evidence and in fact, there are major contradictions, which are on record, but the learned Trial Court has not appreciated the same and hence, the impugned judgment and order must be quashed and set aside and the accused No. 1 must be acquitted for the said offences. 7. Criminal Appeal No. 2506 of 2005 has been filed by the State mainly stating that the learned Trial Court has convicted and sentenced the accused No. 1 to rigorous imprisonment of 6 months and fine of Rs. 500/- and in default, rigorous imprisonment of 1 month for the offence punishable under Section 7 of the P.C. Act and rigorous imprisonment of 1 year and fine of Rs. 1,000/- and in default, rigorous imprisonment of 2 months for the offences punishable under Sections 13(1)(d) 1, 2, 3 and 13(2) of the P.C. Act. The learned Trial Court acquitted the accused No. 2 from the offences the learned Trial Court has awarded much lesser sentence when, in fact, maximum sentence ought to have been awarded to the accused No. 1. Admittedly, the accused No. 1 is a Law Officer and working as an Additional Public Prosecutor in the Court of the learned Judicial Magistrate First Class and is well aware of the provisions of the P.C. Act but has made the demand of illegal gratification of Rs. 5,000/- and the sentence is highly inadequate and disproportionate to the offence committed by the accused No. 1. The learned Trial Court has taken a lenient view while imposing the sentence upon the accused No. 1 and thereby, has committed an error in imposing sentence only of six months and in fact, the maximum sentence of 7 years ought to have been imposed. Looking to the status of the accused No. 1, who is the member of legal fraternity, the accused No. 1 should not be entitled to any leniency and hence, the sentence is improper, perverse and bad in law and deserves to be modified. 8. Heard learned advocate Mr. Looking to the status of the accused No. 1, who is the member of legal fraternity, the accused No. 1 should not be entitled to any leniency and hence, the sentence is improper, perverse and bad in law and deserves to be modified. 8. Heard learned advocate Mr. Kartik Pandya for the appellant-accused No. 1 in Criminal Appeal No. 1351 of 2005 and respondent in Criminal Appeal No. 2506 of 2005 and learned Additional Public Prosecutor Mr. Bhargav Pandya for the respondent in Criminal Appeal No. 1351 of 2005 and the appellant in Criminal Appeal No. 2506 of 2005. 9. Learned advocate Mr. Kartik Pandya for the accused No. 1 has submitted that there is no evidence as to when the prior demand was made by the accused No. 1 and as per the complainant, he had no information about the whereabouts of his truck No. GTX 8496, which was attached with the “Kathiyawad Transport Company.” at Ankleshwar and the truck was being used between Ankleshwar and Vapi for transporting iron rods. As per the say of the complainant-the driver of his truck No. GTX8496 Sharad Ramchandra Gadre, a resident of Umargam, made a request to permit him to visit his home for a couple of days and the complainant had allowed him to do so. On 08.05.1993, the complainant went to Ankleshwar to inquire about the said truck, but no information was received and he came to know from the newspaper “Phoolchhab” on 10.05.1996 while he was in Ahmedabad. That the truck was seized in the offence of the Prohibition Act in Rajkot Taluka Police Station. That he went to Rajkot Taluka Police on 13.05.1993 and his statement was recorded. Once again, on 31.05.1993, the complainant went to Rajkot Police Station and Mr.Raval, Police Sub Inspector gave him a copy of a yadi to help the police to arrest Narandas Kapadia, who was the supplier of the liquor and as per the say of the complainant, the a yadi was produced before the ACB Police Station, but the same has not been produced on record. On 26.11.1993, once again, the complainant and his driver Sharad Ramchandra Gadre visited Rajkot Taluka Police Station and submitted an application before the Court of the learned Judicial Magistrate First Class, Rajkot for releasing the muddamal truck and requested the learned Additional Public Prosecutor to give a positive opinion for releasing the truck. On 26.11.1993, once again, the complainant and his driver Sharad Ramchandra Gadre visited Rajkot Taluka Police Station and submitted an application before the Court of the learned Judicial Magistrate First Class, Rajkot for releasing the muddamal truck and requested the learned Additional Public Prosecutor to give a positive opinion for releasing the truck. That at that time, a demand of Rs. 5,000/- as illegal gratification was made by the accused No. 1. Learned advocate Mr. Kartik Pandya for the accused has further submitted that the evidence of Sharad Ramcharndra Gadre, in whose presence, the prior demand was made is not produced by the prosecution on record, and thereafter, the complainant filed the complaint in the ACB Police Station, Ahmedabad and stated that he was going to visit the Court on the next day i.e. on 09.12.1993. The trap was laid on 09.12.1993, but the accused No. 1 was on leave and the trap was not successful and the amount of bribe of Rs. 5,000/- was collected by Mr.Tiwari, Police Inspector and kept in his custody. That once again, on 15.12.1993, the complainant approached the ACB Police Station, Ahmedabad and has stated that he would be visiting the Court on 16.12.1993 and the trap was laid on 16.12.1993 and the trap was successful on 16.12.1993, but both the accused were arrested by the Investigating Officer on 24.03.1995 and the charge sheet was filed on the same day. Learned advocate Mr. Kartik Pandya for the accused has further submitted that there is an unexplained delay of 7 days in registering the complaint and there was no meeting between the accused No. 1 and the complainant from 26.11.1993 to 16.12.1993 and no tainted currency notes were found from the possession of the accused No. 1 and hence, the ingredients under Section 7 of the P.C. Act have not been proved and consequently, the offence under Section 13(1)(d) would not be attracted. Moreover, the accused has been prosecuted without proper sanction and even in the sanction order, truck No. GTC 8696 is mentioned instead of the correct truck No. GTX 8496. The correct date of demand, as per the case of the prosecution, is 26.11.1993, whereas, in the sanction order, the date of demand is mentioned 15.12.1993 and hence, the sanction has been given without proper application of mind. The correct date of demand, as per the case of the prosecution, is 26.11.1993, whereas, in the sanction order, the date of demand is mentioned 15.12.1993 and hence, the sanction has been given without proper application of mind. The learned Trial Court has misread the evidence and the accused No. 1 cannot be convicted on the same set of evidence as the accused No. 2 has been acquitted even though, the tainted currency notes were found from the possession of the accused No. 2. Learned advocate Mr. Kartik Pandya has urged this Court that Criminal Appeal No. 1351 of 2005 be allowed and as no case of enhancement is made out and hence, Criminal Appeal No. 2506 of 2005 must be dismissed. 9.1. Learned Advocate Mr. Kartik Pandya for the accused has relied upon the following decisions: (i) State of Gujarat vs. Girishbhai Himmatlal Mehta, 2020 (0) AIJEL-HC 242036 (ii) Javed Shaukat Ali Qureshi vs. State of Gujarat, 2023 Live Law (SC) 782 (iii) Dashrath Singh Chauhan vs. Central Bureau of Investigation, 2018 (0) AIJEL-SC 62942 10. Learned APP Mr. Bhargav Pandya for the State has submitted that the prosecution has proved the demand, acceptance and recovery, which are vital ingredients of the offence under the P.C. Act beyond reasonable doubts. The learned Trial Court has wrongly appreciated the evidence and acquitted the accused No. 2, from whose, custody the tainted currency notes were found. The State has filed Criminal Appeal No. 2507 of 2005 against the order of acquittal of the accused No. 2, but, as the accused No. 2 has expired, the appeal against the accused No. 2 stands abated. As far as the conviction of the accused No. 1 is considered, the learned Trial Court has properly appreciated the entire evidence, which is produced by the prosecution and there is no infirmity and perverseness in the impugned judgment and the order of conviction and the same must be upheld as also the appeal of the appellant must be rejected. As far as the conviction of the accused No. 1 is considered, the learned Trial Court has properly appreciated the entire evidence, which is produced by the prosecution and there is no infirmity and perverseness in the impugned judgment and the order of conviction and the same must be upheld as also the appeal of the appellant must be rejected. The respondent-State has also filed Criminal Appeal No. 2506 of 2005 for enhancement of sentence as the learned Trial Court has misread the seriousness of the offence, more particularly, knowing that the accused No. 1 is a member of legal fraternity and well aware of the laws and hence, Criminal Appeal No. 2506 of 2005 must be allowed and maximum sentence must be awarded to the accused No. 1. 11. The entire oral as well as documentary evidence produced by the prosecution to bring home the charge against the accused has been minutely dissected and the submissions of learned advocate for the accused and also the learned APP have been carefully considered. 11.1. The prosecution has examined PW-1 Viraf Nadarshah at Exh.63. This witness is the complainant, who has stated that he was doing the business of transport of truck No. GTX 8496, which was being used in “Kathiyawad Transport” Rajpipla Cross Road, National Highway from Ankleshwar to Vapi and iron rods were being transported in the said truck. On 01.05.1993, his driver had expressed his desire to visit his home and he had told him that when he would take the truck Vapi, he could go home for a couple of days and return to Ankleshwar and thereafter, on 08.05.1993, he had gone to the office of “Kathiyawad Transport” at Ankleshwar, but he could not trace the whereabouts of his truck. The office had intimated him that since 01.05.1993, driver Sharad Ramchandra Gamre had not come to the office and hence, he had gone for his private work at Ahmedabad. While he was in Ahmedabad, he came to know from the newspaper “Phoolchhab’ that the truck was seized by the Rajkot Rural Police in a case under the Prohibition Act, and on 13.05.1993, he went to Rajkot Rural Police Station. He also filed an application for release of the said truck before the learned Judicial Magistrate First Class, Rajkot and the said application is produced at Exh.64 and the matter was adjourned to 26.12.1993. He also filed an application for release of the said truck before the learned Judicial Magistrate First Class, Rajkot and the said application is produced at Exh.64 and the matter was adjourned to 26.12.1993. That he met the accused No. 1-the APP of the learned Magistrate Court at around 4.30pm in the court compound and requested the accused No. 1 to give positive opinion so that his truck could be released at the earliest and at that time, the accused No. 1 had demanded an amount of Rs. 5,000/- as illegal gratification. As he did not want to give the said amount of illegal gratification demanded by the APP, he had contacted the ACB Police Station, Ahmedabad on 08.12.1993 and the complaint was filed, which is produced at Exh.66. The panch witnesses were called and after the experiment of anthracene powder and the ultraviolet lamp test was done, the trap was laid and the complainant and the shadow witness went to the Court on 09.12.1993, but at that time, the accused was not present and the trap failed. That once again, he went to the Police Station on 15.12.1993 and his further complaint was recorded and subsequent thereto, once again, the trap was arranged on 16.12.1993. On 16.12.1993, the panch witnesses were called and the tainted currency notes were placed in his pocket and he went along with the shadow witness to the Court to meet the accused No. 1. That he waited for the accused No. 1 and during the recess, the accused No. 1 came and told him to follow him and he and the shadow witness followed the accused No. 1, who went to the door at the back side of the court, where the vegetables vendors were sitting and came out of the court compound. At that time, the accused No. 1 asked him whether the arrangement was made and while they were in front of Seva Transport, the accused No. 2 was in front of Asha Roadways and the accused No. 1 made a sign that the amount was to be given to the accused No. 2 and accordingly, the amount was handed over to the accused No. 2 and thereafter, the complainant gave the predetermined signal and the members of the raiding party came and caught both the accused. That a big crowd had gathered and both the accused, the complainant and the panch witnesses were taken to the circuit house in a vehicle. During the cross-examination, the complainant has stated that the driver of the truck had pleaded guilty to the offence and on 09.12.1993, the trap had failed. That he did not meet the accused between 09.12.1993 to 15.12.1993 and he himself had decided on the date 16.12.1993. There was no conversation between the accused and the complainant between 26.11.1993 and 26.12.1993 and the place, at which, the amount of illegal gratification had to be paid was not decided. There was no need for any opinion to be given by the accused No. 1 for early release of the vehicle from 31.08.1993 to 16.12.1993 and he had never met the accused No. 2. The accused No. 1 had merely asked as to whether the arrangement was made and the word “money” was not used. That on 09.12.1993, on the date of the failed trap, the tainted currency notes were in his possession till 5.00pm. The same currency notes that were used at the time of failed trap on 09.12.1993 were used on 16.12.1993 and his statement was recorded at the circuit house. That no demand was made by the accused No. 1 from 26.11.1993 till the time of the trap and there was no discussion with the accused No. 2 and he had not seen the accused No. 2 till he had come outside the court compound on 16.12.1993. 11.2. The prosecution has examined PW-2 Ashokbhai Gavabhai Chavda at Exh.72. This witness is the shadow witness, who had accompanied the complainant on the day of the failed trap on 09.12.1993 as also on the day of the trap on 16.12.1993. This witness has supported the case of the prosecution and has narrated the entire events as per the case of the prosecution and as far as the evidence for 16.12.1993 is concerned, this witness has stated that he went along with the complainant and when the accused No. 1 came out of the office, he made a sign to the complainant to follow him and they went outside of the court, where, the vegetables vendors were sitting. At that time, the accused No. 1 had asked the complainant whether he had made the arrangement for money and the accused No. 1 made a sign to one person and called him near and had told the complainant to give the amount to that person. The complainant had given the money to the accused No. 2, who placed the same in his pocket and at that time, the complainant had given the pre-determined signal and the members of the raiding party came and caught both the accused and took them in a vehicle to the circuit house, where the ultraviolet lamp test was done and the fingers of the accused No. 1 had shown traces of anthracene powder. This witness has produced the panchnama at Exh.74. During the cross-examination, the witness has stated that he does not remember as to in which pocket the accused No. 2 had placed the amount and he had not seen the amount till it was placed under the lamp and he has not seen the recovery of the amount from the accused No. 2. After seeing the amount placed by the complainant in his pocket, he saw that the complainant had given the amount to the accused No. 2 and thereafter, saw the said amount at the circuit house. The witness has also stated that as per his recollection, the accused No. 2 had not placed the tainted currency notes in his pocket. The witness has also stated that he does not know how the anthracene powder was applied on the currency notes and he cannot recollect as to whether the anthracene powder was applied by the constable with cotton or with fingers. 11.3. The prosecution has examined PW-3 Bhupatsinh Bhavsinh Rathod at Exh.84. This witness is a clerk in the office of Police Commissioner, Rajkot and the witness has produced the service book of the accused No. 2 at Exh.86. The prosecution has examined PW-5 Kanvarraj Kaushik at Exh.94. This witness is the sanction authority, who has given sanction for prosecution of the accused. The prosecution has examined PW-6 Raghavram Ramnath Tiwari at Exh.95. This witness is the Trap Laying Officer, who had recorded the complaint of the complainant and had thereafter, carried out entire procedure of the trap. This witness has narrated the entire sequence of the events of the trap. The prosecution has examined PW-6 Raghavram Ramnath Tiwari at Exh.95. This witness is the Trap Laying Officer, who had recorded the complaint of the complainant and had thereafter, carried out entire procedure of the trap. This witness has narrated the entire sequence of the events of the trap. During the cross-examination, this witness has stated that the test of ultraviolet lamp was not conducted at the spot, but it was done in the circuit house and the time and place, at which, the acceptance of the illegal gratification was to be paid, was not decided and the same was not mentioned in the complaint by the complainant. That he had reached the spot immediately when the complainant had given the pre-determined signal and the accused No. 2 had not tried to hide the tainted currency notes, which were in his hand. 11.4. The prosecution has examined PW-7 Natwarlal Narshibhai Nagar at Exh.101. This witness is the Investigating Officer, who has stated that after the trap was successful, the investigation was handed over to him for further investigation and he had recorded the statement of the Trap Laying Officer Mr. R.R. Tiwari, Police Inspector. He had also recorded the statement of panch witnesses and also the members of the raiding party and thereafter, as he was transferred, the further investigation was handed over to Mr. Saatpute, Police Inspector. From the documents, this witness has stated that Mr. Saatpute, Police Inspector had got the sanction for prosecution of the accused and has arrested both the accused on 24.03.1995 and has filed the charge sheet. 12. In the case of Girishbhai Himmatlal Mehta (supra) relied upon by learned advocate Mr. Kartik Pandya, the Apex Court has observed in Para 10, as under: “10. It also appears that on 21.06.1997, trap came to be arranged and carried out. After completing the raid, necessary panchnama was drawn on 21.06.1997. Thereafter, accused persons were arrested on 15.10.1997. The prosecution had made no explanation on record to establish the delay of 120 days in arresting the accused persons when they are alleged to have caught red handed on the spot on 21.06.1997............” 12.1. In the case of Javed Shaukat Ali Qureshi (supra) relied upon by learned advocate Mr. Kartik Pandya, the Apex Court has observed in Para 19, as under: “19. In the case of Javed Shaukat Ali Qureshi (supra) relied upon by learned advocate Mr. Kartik Pandya, the Apex Court has observed in Para 19, as under: “19. We have found that the case of the accused No. 2 stands on the same footing as accused Nos. 1, 5 and 13 acquitted by this Court. The accused No. 2 must get the benefit of parity. The principles laid down in the case of Harbans Singh will apply. If we fail to grant relief to accused No. 2, the right guaranteed to the accused No. 2 under Article 21 of the Constitution of India will be violated. It will amount to doing manifest injustice. In fact, as a constitutional Court entrusted with the duty of upholding fundamental rights guaranteed under the Constitution, it is hour duty and obligation to extend the same relief to the accused No. 2. Therefore, we will have to recall the order passed in the Special Leave Petition filed by the accused No. 2.” 12.2. In the case of Dashrath Singha Chauhan (supra) relied upon by learned advocate Mr. Kartik Pandya, the Apex Court has observed in Para 29 to 32, as under: “29. It is for the reason that in order to prove a case against the appellant, it was necessary for the prosecution to prove the twin requirement of “demand and the acceptance of the bribe amount by the appellant.” As mentioned above, it was the case of the prosecution in the charge that the appellant did not accept the bribe money but the money was accepted and recovered from the possession of Rajinder Kumar co-accused (A-1). 30. In such circumstances, there is no evidence to prove that the appellant directly accepted the money from the Complainant. Since the plea of conspiracy against the appellant and Rajinder Kumar failed, it cannot be held that money (Rs. 4,000/-) recovered from the possession of Rajinder Kumar was as a fact the bribe money meant for the appellant for holding him guilty for the offences punishable under Sections 7, 13(2) read with 13(1)(d) of the PC Act. It is more so when the benefit of such acquittal from the charge of conspiracy was given to Rajinder Kumar but was not given to the appellant. 31. In our view, the prosecution, therefore, failed to prove the factum of acceptance of bribe money of Rs. It is more so when the benefit of such acquittal from the charge of conspiracy was given to Rajinder Kumar but was not given to the appellant. 31. In our view, the prosecution, therefore, failed to prove the factum of acceptance of bribe money of Rs. 4,000/- by the appellant from the Complainant on 29.03.1995 as per the charges framed against him. 32. Since in order to attract the rigors of Sections 7, 13(2) read 13(1)(d) of PC Act, the prosecution was under a legal obligation to prove the twin requirements of “demand and acceptance of bribe money by s the accused” the proving of one alone but not the other was not sufficient. The appellant is, therefore, entitled for acquittal from the charges framed against him under the PC Act too.” [See Para 8 of M.K. Harshan vs. State of Kerala, (1996) 11 SCC 720 ] 13. In the entire evidence of the prosecution, there is no iota of evidence of prior demand, which is made by the accused No. 1 and as per the case of the prosecution, the demand was made on 26.11.1993 in the presence of the driver of the truck No. GTX 8496 Sharad Ramchandra Gamre, but the said witness has not been examined before the learned Trial Court even though he was an independent witness to prove the prior demand made by the accused No. 1. In the entire evidence, there is no evidence as to what time, date and place the amount of illegal gratification was to be paid and if the evidence of the complainant and the shadow witness are perused, the evidence regarding the demand on 16.12.1993 is to the effect that the accused No. 1 had asked the complainant as to whether he had made the arrangement. The arrangement is not clear as to whether the arrangement was with regard to the demand of illegal gratification or the arrangement regarding the bail, surety or the documents that were to be produced for release of the truck of the complainant and the demand not proved beyond reasonable doubts. As per the case of the prosecution, the recovery of the tainted currency notes were from the accused No. 2 and the learned Trial Court has acquitted the accused No. 2 from all the offences. As per the case of the prosecution, the recovery of the tainted currency notes were from the accused No. 2 and the learned Trial Court has acquitted the accused No. 2 from all the offences. It is settled principles of law by a catena of decisions of the Apex Court that the demand, acceptance and recovery must be proved by the prosecution beyond reasonable doubts and admittedly, there is no recovery of the tainted currency notes from the possession of the accused No. 1. The learned Trial Court has, on the same set of evidence, acquitted the accused No. 2 even though, the tainted currency notes were recovered from the possession of the accused No. 2. As held by the Apex Court in the case of Javed Shaukat Ali Qureshi (supra), for the same kind of offence, one person cannot be convicted and the other cannot be acquitted. As per the case of the prosecution, the trap was successful on 16.12.1993, but in the evidence of PW-7, it has come on record that the accused were arrested on 24.03.1995 and there is no explanation, whatsoever, in the deposition of PW-6, the Trap Laying Officer or in the deposition of PW-7, the Investigating Officer as to why the accused were not arrested on the same date when the trap was successful. As per the record, the accused were arrested after a huge delay of 463 days and no explanation whatsoever is made regarding the huge delay. Moreover, there is also clear evidence that the muddamal tainted currency notes were not sealed by the Investigating Officer and the muddamal tainted currency notes were submitted before the learned Trial Court after a huge delay of 463 days. As far as the preparation of panchnama and the procedure undertaken after the successful trap i.e. test of ultraviolet lamp is concerned, there is evidence that the test was not done on the spot, but the accused, the panch witnesses, the complainant and the members of the raiding party had gone to the circuit house and there is no clear evidence as to how they had gone to the circuit house. Moreover, in the evidence, it has come on record that the tainted currency notes were with the accused No. 2 from the time of the trap till he had gone to the circuit house, which is highly unbelievable and no explanation as to why the tainted currency notes were with the accused No. 2 is forthcoming in the evidence. There is also no evidence as to how the tainted currency notes were recovered from the accused No. 2 and unless the evidence is clear, cogent and reliable, no conviction can be recorded. The evidence produced by the prosecution is contrary and far from convincing and on the same set of evidence, the learned Trial Court has convicted the accused No. 1 and acquitted the accused No. 2, which is not proper and the impugned judgment and order requires interference. In the considered opinion of this Court that the conviction of the accused No. 1 could not have been invoked and the infirmities in the evidence of the prosecution have come clearly on record and consequently, Criminal Appeal No. 1351 of 2005 succeeds and is allowed and Criminal Appeal No. 2506 of 2005 is rejected. 14. The impugned judgment and order in Sessions Case (ACB) No. 8 of 1995 passed by the learned Additional Sessions Judge, 7th Fast Track Court, Rajkot on 15.06.2005 is hereby quashed and set aside. Bail bonds stand cancelled. Fine to be refunded the accused after due verification. 15. Record and proceedings be sent back to the concerned Trial Court forthwith.