JUDGMENT : S.V. PINTO, J. 1. This appeal has been filed by the appellant under Section 378(1)(3) of Code of Criminal Procedure, 1973 against the judgment and order of acquittal passed by the learned Special Judge (Fast Track Court No. 2), Jamnagar (hereinafter referred to as “the learned Trial Court”) in Special Case No. 13 of 1992 on 30.01.2006, whereby, the learned Trial Court has acquitted the appellant for the offence punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the PC Act” for short). 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 accused was working as a Constable in the Traffic Police in Jamnagar District and was a public servant and the Assistant Director, ACB Police Station, Rajkot had information that the accused was demanding for Rs. 20/- from truck drivers for not filing a case in the no-parking zone as also breach of the one-way in Jamnagar City, Grain Market Area and hence, on the basis of the information received by the Assistant Director, ACB Rajkot, Azizbhai Kasambhai Saiyed-the driver of truck bearing registration no. GTW 3388 was kept as a bogus punter and a trap was arranged on 22.02.1991. That on that date at 16.50 hours, the bogus punter Azizbhai Kasambhai Saiyed took his truck bearing registration no. GTW-3388 in the Grain Market Area in Jamnagar City and the accused halted him and demanded and accepted the amount of Rs. 20/- and after the predetermined signal was given, the accused was caught red-handed and the offence under Sections 7, 13(1)(d) and 13(2) of the PC Act was registered by the Assistant Director, ACB Rajkot which was registered at ACB Police Station, Jamnagar being C.R. No. 3/1991 on 22.02.1991. That after due investigation, the necessary panchnamas were drawn and the statements of the connected witnesses were recorded and after collecting the necessary evidence, the charge-sheet was filed against the accused before the Sessions Court, Jamnagar which came to be registered as Special ACB Case No. 13/1992. That after due investigation, the necessary panchnamas were drawn and the statements of the connected witnesses were recorded and after collecting the necessary evidence, the charge-sheet was filed against the accused before the Sessions Court, Jamnagar which came to be registered as Special ACB Case No. 13/1992. 2.2 The accused was duly served with the summons and after the accused appeared before the learned Trial Court, the procedure under Section 207 of the Code of Criminal Procedure was followed and the charge at Exh.11 was framed against the accused and the statement of the accused was recorded at Exh.12, wherein, the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. 2.3 The prosecution has produced the following oral evidences in support of their case: S. No. PW Particulars Exhibit 1. 1 Jayrajsinh Vashrambhai Dodia 13 2. 2 Keshavji Jerambhai 16 3. 3 Ajijbhai Kasambhai Saiyed 17 4. 4 N.N. Nagar 19 5. 5 Mansukh Arjanbhai Virani 23 6. 6 Kanjibhai Bhavanbhai 29 7. 7 Shivanand Vaidnath Jha 32 8. 8 Mahendrasinh Pathubha Chudasama 37 2.4 The prosecution has produced the following documentary evidences in support of their case: S. No. Particulars Exhibit 1. Panchnama 14 2. Seizure Memo 15 3. Appointment order of the accused 24 4. Transfer order of the accused 25 5. Relevant pages of Service Book 26 6. Entry register 30 7. Modified job schedule of Jamnagar Traffic Branch 31 8. Letter of District Police Officer, Jamnagar for sanction of prosecution 33 9. Sanction for prosecution 34 10. Complaint along with copy of complaint in Form 154 38-39 2.5 After the learned APP filed the closing pursis at Exh.39, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded and after the arguments of learned APP and learned advocate for the accused were heard, the learned Trial Court by a judgment and order dated 30.01.2006 was pleased to acquit the accused from all the offences. 3. Being aggrieved and dissatisfied with the said judgment and order of acquittal, the appellant-State has filed the present appeal mainly contending that the accused was a public servant and the prosecution has proved the case against the accused beyond reasonable doubts. 3. Being aggrieved and dissatisfied with the said judgment and order of acquittal, the appellant-State has filed the present appeal mainly contending that the accused was a public servant and the prosecution has proved the case against the accused beyond reasonable doubts. That the prosecution has successfully established the elements of demand, acceptance and recovery but the learned Trial Court has not properly appreciated the evidence and the various judgments relied upon by the prosecution and has erred in passing the order of acquittal. That Police Sub-Inspector-Mr. N.N. Nagar in his evidence at Exh.19 has stated that the punter and panch witness no. 1 were present and other staff members of the ACB were in the cabin of the truck and they have supported the case of the prosecution. That the learned Trial Court has committed an error in concluding that the demand of illegal gratification is not proved by the prosecution and has also erred in concluding that the acceptance is not done in the presence of the prosecution witness no. 1. That the judgment and order of acquittal is erroneous, unjust and improper and is required to be quashed and set aside and the accused must be convicted for all the offences. 4. Heard learned APP Ms. Vrunda Shah for the prosecution and learned advocate Mr. Hasit Joshi for the respondent. 5. Learned APP Ms. Vrunda Shah has taken this Court through the entire evidence and has stated that the prosecution has proved the case beyond reasonable doubts and even though the decoy punter Azizbhai Kasambhai Saiyed and the panch witness Jaisinh Vashrambhai Dodiya have turned hostile, the prosecution has proved the case by the evidence of the Trap Laying Officer-Natwarlal Narsinhbhai Nagar. That it is proved from the deposition of Kanjibhai Bhawanjibhai that the accused was on duty at the relevants time and the sanction for prosecution has been properly granted by the Competent Authority. That the learned Trial Court has wrongly acquitted the accused and in the entire evidence, if read in toto, establishes the guilt of the accused beyond reasonable doubts and hence, the judgment and order of acquittal must be quashed and set aside and the accused be found guilty for the said offences. 6. Learned advocate Mr. That the learned Trial Court has wrongly acquitted the accused and in the entire evidence, if read in toto, establishes the guilt of the accused beyond reasonable doubts and hence, the judgment and order of acquittal must be quashed and set aside and the accused be found guilty for the said offences. 6. Learned advocate Mr. Hasit Joshi for the respondent has submitted that unless the finding of the learned Trial Court is perverse or illegal, it is not permissible for the Appellate Court to interfere with the same. That the decoy punter Azizbhai Kasambhai Saiyed did not support the case of the prosecution and has been declared hostile and nothing is on record to involve the accused in the offence. That there is no evidence of any spot demand through the evidence of decoy witness or in the evidence of the panch witness as both have been declared hostile. The panch no. 2 has also been declared hostile and nothing is brought on record during the cross-examination. That there is no iota of evidence that there was any demand of bribe of Rs. 20/- and the evidence qua the acceptance is also not proved on record. Proof of Demand is a sine qua non in corruption cases and in the absence of proof of demand, mere recovery of tainted currency notes cannot be said to be sufficient to convict the accused. Moreover, it is also on record that the complaint was filed by PW-8/Mahendrasinh Pathubha Chudasama who is the complainant, the Trap Laying Officer; the officer who has done the entire investigation and has also filed the charge-sheet against the accused which raises a serious doubt on the case of the prosecution. That the learned Trial Court has properly appreciated all the evidences and the order does not call for any interference and hence, the appeal of the appellant must be rejected. 6.1 Learned advocate Mr. Hasit Joshi for the respondent has relied upon 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 and the judgment of this Court in case of Gopalla Ghisulal Chhipa (Since Decd) vs. State of Gujarat, (1999) 1 GLR 546 . 7. 6.1 Learned advocate Mr. Hasit Joshi for the respondent has relied upon 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 and the judgment of this Court in case of Gopalla Ghisulal Chhipa (Since Decd) vs. State of Gujarat, (1999) 1 GLR 546 . 7. Before dissecting the evidences adduced by the prosecution on record before the learned Trial Court, it is essential to reiterate the cardinal principles of Criminal Jurisprudence as settled by the Hon’ble Apex Court in a catena of decisions and the first cardinal principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot claim any benefit of the weaknesses of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent unless he is proved guilty beyond reasonable doubts from the evidence of the prosecution and the third cardinal principle is that the burden of onus of proof never shifts from the prosecution. 7.1 At the outset, it would be appropriate to refer to the observations of the Hon’ble Apex Court in the case of Neeraj Datta (supra), wherein, the Hon’ble Apex Court has in Para 68 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. 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 and particularly in acquittal appeals filed under the PC Act, the evidence produced by the prosecution on record must be minutely examined and the prosecution has examined PW-1/Jaysinh Vashrambhai Dodiya at Exh.13. The witness is the panch witness who has stated that on 22.02.1991, he was called to the Padadhri Guest House and he and another clerk had gone there as panch witnesses. That Mr. Chudasama was there who explained to them about the ACB trap on the Padadhri - Jamnagar Highway, as the RTO and Police Personnel were taking money from the vehicles as entry fee. That the procedure of anthracene powder and ultraviolet lamp was explained and showed to them and thereafter, a truck was halted and the driver and cleaner of truck came and they were also shown the experiment of anthracene powder. That four currency notes of Rs. 10/- each and two currency notes of Rs. 5/- each were given to the driver and both the panch witnesses i.e. Mr. Nagar and Mr. Dhandhal and one constable sat in the cabin of the truck and they left from Padadhri to Jamnagar and Mr. Chudasama followed them in a jeep. That the truck was directed to be taken into the city and they went into Jamnagar City and one police point was there where the constable was standing and he halted the truck. That three persons got down from the truck and the driver also got down and was checking the wheels of the truck and the driver went to the constable and at that time, the driver and the constable had some conversation but he does not know what was the conversation as he had not heard the same. That Mr. That three persons got down from the truck and the driver also got down and was checking the wheels of the truck and the driver went to the constable and at that time, the driver and the constable had some conversation but he does not know what was the conversation as he had not heard the same. That Mr. Nagar told him and the other panch that the constable was caught in the trap and at that time, a huge traffic jam took place and a lot of public gathered and hence, they were instructed to get into one shop, so both the panch witnesses went into the shop and they were sent on the first floor of the shop. That Mr. Nagar, Mr. Dhandhal and one constable also came up and thereafter, the panchnama was prepared by the constable. That the tainted currency notes were shown to them and blue colour florescent light was found on the notes and on the hands of the driver and also on the hands of the constable who was caught. That the panchnama was prepared and the same is produced at Exh.14. The witness has been declared hostile and has been cross-examined at length by the learned APP and in the cross-examination by the learned advocate for the accused, the witness has stated that he is aware that if he does not support the case of the prosecution, departmental proceedings will be initiated against him. That the details of the panchnama were not dictated by him or the other panch witness but were dictated by the police officer of ACB and prior to this case, he was a panch in another case. 8.1 The prosecution has examined PW-2/Keshavjibhai Jairambhai at Exh.16 and this witness is the other panch witness who was with the raiding party. The witness has initially stated the facts as per the case of the prosecution and has thereafter, stated that he was inside the truck and when the ACB members went to the policemen, he too had gone and they were inquiring from him about the bribe amount. That he was taken into the shop and there the ultraviolet test was done but he does not know as to who had the currency notes. That he was taken into the shop and there the ultraviolet test was done but he does not know as to who had the currency notes. The witness has been declared hostile as he has not supported the case of the prosecution and the witness has categorically stated that he did not hear any conversation between the driver and the accused and has not seen anything. That he is deposing as he is a government employee and is aware that he will face departmental action if he does not support the case of prosecution. That one policeman was writing the panchanama and other policeman was dictating the same and he does not know as to whose hands were tainted with traces of anthracene powder. 8.2 The prosecution has examined PW-3/Azizbhai Kasambhai Saiyed at Exh.17 and this witness is the punter driver of truck GTW 3364. The witness has stated that on 20.02.1991, he was going from Surat to Rajkot with fertilizers in his truck and thereafter, had gone from Rajkot to Dhoraji via Gondal and had to go from Surat to Jamnagar on 22.02.1991. That he was never halted by the ACB officials and no trap was explained to him and he was not halted on the Padadhri Highway. The witness has not supported the case of the prosecution and has been declared hostile and in the lengthy cross-examination by the learned APP, no evidence to support the case of prosecution has come on record. 8.3 The prosecution has examined PW-4/Natwarlal Narsinhbhai Nagar at Exh.19 and this witness is the member of the raiding party and he has supported the case of prosecution and has deposed about the entire events that had unfolded on the date of the trap. 8.4 The prosecution has examined PW-5/Mansukhbhai Arjanbhai Virani at Exh.23 and this witness is the senior clerk in the office of District Superintendent of Police, Jamnagar and he has produced the service record of the accused. The prosecution has examined Kanjibhai Bhagwanjibhai Bhoi at Exh.29 and this witness is the Police Head Constable of the Traffic Branch, Jamnagar and the witness has produced the duty list of the police personnel of the Traffic Branch at Exh.31. 8.5 The prosecution has examined PW-7/Shivanand Jha S/o Vaidnath Jha at Exh.32 and this witness is the Competent Authority who has granted the sanction for prosecution of the accused. 8.5 The prosecution has examined PW-7/Shivanand Jha S/o Vaidnath Jha at Exh.32 and this witness is the Competent Authority who has granted the sanction for prosecution of the accused. The witness had stated that he has received the papers from ACB Office seeking sanction for prosecution of the accused and he has granted the sanction which is produced at Exh.34 after studying the necessary papers. During the cross-examination the witness has stated that he had not received the investigation papers along with the letter requesting sanction for prosecution and along with the letter produced at Exh.33, he has received a draft sanction order from the ACB Police Station. 8.6 The prosecution has examined PW-8/Mahendrasinh Pathubha Chudasama at Exh.37 and this witness is the complainant who has filed the complaint at ACB Police Station, Jamnagar, the Trap Laying Officer who has arranged the entire trap and also the Investigating Officer who has investigated the entire case and filed the charge-sheet against the accused. The witness has fully supported the case of prosecution and had admitted during the cross-examination that he has filed the complaint, investigated the same and filed the charge-sheet also. 9. On minutely dissecting the entire evidence filed by the prosecution, it is on record that PW-1/Jairambhai Vashrambhai Dodiya the panch witness who was the shadow witness, PW-2/Keshavji Jairambhai-the panch no. 2 and PW-3/Azizbhai Kasambhai Saiyed-the decoy punter, who are all independent witnesses, have all turned hostile and have not supported the case of the prosecution. Except for the evidence of PW-8/Mahendrasinh Pathubha Chudasama who is the complainant, the Trap Laying Officer who has arranged for the trap and the Investigating Officer who has investigated the entire case and filed the charge-sheet, there is no iota of evidence on record to prove the demand, acceptance or recovery from the accused. It is settled by the Hon’ble Apex Court in catena of decisions that proof of demand of illegal gratification is the sine qua non for the offence under Sections 7 and 13(1)(d) and 13(2) of the PC Act and mere proof of recovery of tainted currency notes from an accused, without proof of demand, would not establish an offence under the PC Act. That in the absence of proof of demand for illegal gratification, the accused cannot be convicted for the offence and in this case, the prosecution has not proved the demand, acceptance or recovery by any independent witnesses. The panch witnesses have clearly stated that they did not hear the accused making any demand nor have they seen the accused taking any amount of illegal gratification from the decoy punter and the decoy punter himself has turned hostile and has not supported the case of the prosecution. Even otherwise, it is on record that the complaint has been filed by PW-8/Mahendrasinh Pathubha Chudasama who is the complainant and has arranged for the trap and has filed the charge-sheet and has done everything from registration of the complaint till filing of the charge-sheet and the credibility of the case of the prosecution is doubtful. That in fact, the case of the prosecution must fail on this count only as per the judgment of this Court in Gopalla Ghisulal (supra) wherein, in Para 8, this Court has held as under: “8. My attention was drawn to the decision of the Supreme Court in the case of Bhagwansingh vs. State of Rajasthan wherein it is held that if everything is done by the police officer, it would be an infirmity in the case which is bound to reflect on the credibility of the prosecution case. In that case, the complaint was recorded by the Investigating Officer, raid was also carried out by the Investigating Officer, search and seizure were also made by him and thereafter the investigation was also carried out by him and the charge-sheet was also filed by him before the Court. In this case, Mr. Vyas, the P.S.I. has also done everything right from recording of the complaint till the charge-sheet was filed before the Court. When that is so, the credibility of the case of the prosecution is certainly doubtful and the prosecution case must fail on that count. Even if this tarnishing point is ignored and the evidence is considered, there is nothing which would lead me to hold that the prosecution has succeeded in establishing the charge levelled against the deceased appellant.” 10. When that is so, the credibility of the case of the prosecution is certainly doubtful and the prosecution case must fail on that count. Even if this tarnishing point is ignored and the evidence is considered, there is nothing which would lead me to hold that the prosecution has succeeded in establishing the charge levelled against the deceased appellant.” 10. In view of the settled position of law in the decisions of Neeraj Dutta (supra) and Gopalla Ghisulal (supra) and on appraisal of the evidences produced by the prosecution, the reasons assigned by the learned Trial Court are just and proper and this Court is of the considered opinion that the learned Trial Court was completely justified in acquitting the accused from all 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. 11. 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 passed by the learned Special Judge (Fast Track Court No. 2), Jamnagar in Special Case No. 13 of 1992 on 30.01.2006 is hereby confirmed. 12. Bail bond stands cancelled. Record and proceedings, if any, be sent back to the Trial Court forthwith.

State of Gujarat v. Ghanshyamsinh Juwansinh Jadeja