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Gujarat High Court · body

2024 DIGILAW 728 (GUJ)

Shantilal Madhurbhai Vasava v. State Of Gujarat

2024-04-03

S.V.PINTO

body2024
JUDGMENT : 1. This appeal has been filed by the appellant – original accused under Section 374 of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the judgment and order of conviction in Special (ACB) Case No. 54 of 1997 passed by the learned Presiding Officer, 3rd Fast Track Court, Surat (hereinafter referred to as ‘the learned Trial Court’) on 15.10.2007, whereby, the learned Trial Court has convicted the respondent for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the P.C.Act’). That Special (ACB) No. 54 of 1997 was filed against the present appellant, who was the accused No.1 and accused Nos.2 and 3 were also charged along with the accused No.1 and by the impugned judgment and order, the learned Trial Court has convicted the present appellant – accused No.1 and has acquitted the accused Nos. 2 and 3 from the said offence and the appellant - accused No.1 and acquitted the co-accused are hereinafter referred to as ‘the accused’ as they stood in their rank and file in the original case for the sake of convenience, clarity and brevity. 2. The relevant facts leading to filing the conviction appeal are as under: 2.1. That the accused No.1 was working as an Unarmed Head Constable and the accused Nos. 2 and 3 were working as Unamed Police Constables in Kukarmunda outpost of Nizar Police Station, District Surat (Rural) and were Public Servants. That on 08.11.1996, the accused No.1 had filed the case under the Prohibition Act against one Prabhatsinh, who was the cousin brother of the complainant Kalusinh @ Kalubhai Balubhai, residing at village Fulwadi, Taluka Nizar, District Surat and the accused had demanded an amount of Rs.700/- to release Prabhatsinh on bail and to return the brass pot that was seized by the accused No.1 during investigation. That Prabhatsinh had presented himself on 21.11.1996 and he was released on bail and thereafter, on 24.11.1996, the offence under Part-III C.R.No.184 of 1996 was filed in the Nizar Police Station and the some papers that were used during the bail on 21.11.1996 were shown and at that time, an amount of Rs.700/- was demanded as illegal gratification. That Prabhatsinh had presented himself on 21.11.1996 and he was released on bail and thereafter, on 24.11.1996, the offence under Part-III C.R.No.184 of 1996 was filed in the Nizar Police Station and the some papers that were used during the bail on 21.11.1996 were shown and at that time, an amount of Rs.700/- was demanded as illegal gratification. That even after Prabhatsinh was released on bail, the accused had demanded for the amount of Rs.700/- as illegal gratification and as the complainant did not want to pay the amount of illegal gratification, the complainant approached the ACB Police Station, Surat and filed the complaint under Section 7, 13(1)(d) and 13(2) of the P.C.Act. The Trap Laying Officer called the panch witnesses and the experiment of anthracene powder and ultraviolet lamp was carried out in the presence of the panch witnesses and the complainant and the trap was arranged and on 08.12.1996, at 20:50 hours, the accused No.1 accepted the amount of illegal gratification at Kukarmunda Outpost and after the pre-determined signal was given by the complainant, the members of raiding party came and caught the accused No.1 red handed. That the Investigating Officer investigated the offence and after recording the statements of the connected witnesses and receiving the sanction for prosecution from the competent authority, a charge sheet was filed before the Sessions Court, Surat, which was registered as Special (ACB) Case No.54 of 1997. 2.2. 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.4 and the statements of the accused were recorded at Exh.5, 6 and 7, wherein, all the accused denied all the contents of the charge and the entire evidence of the prosecution was taken on record. The prosecution has produced the following oral as well as documentary evidence in support of the case. ORAL EVIDENCE : Sr.No. Particulars Exh. 1 Kalusinh Balubhai 12 2 Jayantilal Lallubhai Valand 23 3 Manojkumar Maganlal Desai 27 4 Ajabsinh Mulsinh Rathod 37 5 Gulabsinh Lalsinh Pagi 45 DOCUMENTARY EVIDENCE : Sr.No. Particulars Exh. 1 Complaint 22 2 Panchanama for Trap 24 3 Receipt 25 4 Letter of appointment of the accused and service books. ORAL EVIDENCE : Sr.No. Particulars Exh. 1 Kalusinh Balubhai 12 2 Jayantilal Lallubhai Valand 23 3 Manojkumar Maganlal Desai 27 4 Ajabsinh Mulsinh Rathod 37 5 Gulabsinh Lalsinh Pagi 45 DOCUMENTARY EVIDENCE : Sr.No. Particulars Exh. 1 Complaint 22 2 Panchanama for Trap 24 3 Receipt 25 4 Letter of appointment of the accused and service books. 38 5 Appointment order of accused No.1 39 6 Appointment order of accused No.3 40 7 Appointment order of accused No.2 41 8 First page of service book of accused No.1 42 9 First page of service book of accused No.2 43 10 Order of sanction for prosecution 44 After the closing pursis was submitted by the learned APP at Exh.46, the further statements of the accused under Section 313 of the Code of Criminal Procedure was 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 15.10.2007, convicted the appellant - accused No.1 and sentenced the accused No.1 to rigorous imprisonment of six months and fine of Rs.1000/- and in default, simple imprisonment of one month for the offences punishable under Section 7 of the P.C.Act and simple imprisonment of one year and fine of Rs.1500/- and in default, simple imprisonment of two months for the offences punishable under Sections 13(1)(d) and 13(2) of the P.C.Act, 1988 and further ordered that both the sentences were to run concurrently. The learned Trial Court was pleased to acquit the accused Nos. 2 and 3 for all the offences by the impugned judgment and order. 3. Being aggrieved and dissatisfied with the impugned judgment and order dated 15.10.2007 passed by the learned Presiding Officer, 3rd Fast Track Court, Surat, the accused No.1 has filed the present appeal mainly contending that the impugned judgment and order is illegal, improper, unjust and without considering the material on record. That the complainant has not supported the case of the prosecution and the learned Trial Court has merely on conjectures and surmises convicted the accused No.1. That there are major contradictions and omissions in the depositions of the Investigating Officer and the panch witnesses and the impugned judgment and order has caused great injustice and prejudice to the accused. That the complainant has not supported the case of the prosecution and the learned Trial Court has merely on conjectures and surmises convicted the accused No.1. That there are major contradictions and omissions in the depositions of the Investigating Officer and the panch witnesses and the impugned judgment and order has caused great injustice and prejudice to the accused. That in fact, the complainant had forcefully put the currency notes in the pocket of the accused No.1 and there is evidence on record that there was no light at the place of the trap. That the panch witnesses have not supported the case of the prosecution and have clearly stated that they have no knowledge about the contents of the complaint and the panchnama is drawn by the Investigating Officer himself and the panchnama was not read over or explained to the panch witnesses, who had merely signed the panchnama, which was prepared by the Trap Laying Officer. That both the panch witnesses have been declared hostile and even though, there is no evidence of any independent witness, the learned Trial Court has convicted the accused and has committed s serious error of law. That no demand of any illegal gratification was made by the accused No.1 and the evidence to that effect has come on record in the depositions of the panch witnesses, but the learned Trial Court has presumed the evidence of recovery, which is not legal in the absence of the specific evidence of demand and acceptance. That in fact, it is on record that at the time of the trap, there were other police personnel present at the outpost, but no such witnesses have been examined by the prosecution and there are serious infirmities in the proceedings and hence, the impugned judgment and order passed by the learned Trial Court is unjust and improper and is required to be quashed and set aside and the appellant be acquitted from all the offences. 4. Heard learned advocate Mr.Shakeel Qureshi for the appellant and learned APP Ms. Jirga Jhaveri for the respondent – State. 5. Learned advocate Mr. Shakeel Qureshi has taken this Court through the entire evidence of the prosecution and has submitted that the prosecution has examined 5 witnesses before the learned Trial Court and the complainant examined at Exh.13, has not supported the case of the prosecution and has been declared hostile. Jirga Jhaveri for the respondent – State. 5. Learned advocate Mr. Shakeel Qureshi has taken this Court through the entire evidence of the prosecution and has submitted that the prosecution has examined 5 witnesses before the learned Trial Court and the complainant examined at Exh.13, has not supported the case of the prosecution and has been declared hostile. That the prosecution has also examined both the panch witnesses at Exhs.23 and 27 respectively and both the panch witnesses have not supported the case of the prosecution and have been declared hostile. That the learned Trial Court has only relied upon the deposition of the Investigating Officer at Exh.37 and the Lamp Operator at Exh.45 and has convicted the accused. That it is settled principles of law that all three ingredients of demand, acceptance and recovery are required to be proved for conviction under the P.C.Act, but there is no evidence of any demand or acceptance, which is proved by the prosecution beyond reasonable doubts. That two witnesses on whose depositions, the learned Trial Court has relied upon are police witnesses and their evidences are not supported by the evidence of any independent witnesses and hence, the accused cannot be convicted for the said offences. That the Investigating Officer, who is examined at Exh.37, has stated that he has arranged for the trap and he himself has carried out the investigation, which has caused the great prejudice to the accused. Moreover, the Investigating Officer is the officer before whom the complaint was recorded and the Apex Court has in the case of Bhagwansinh Vs. State of Rajasthan reported in AIR 1996 SC 985 has held that the accused cannot be convicted when comlpaint is recorded by the same officer, who has arranged for the trap and has also investigated the entire case. That the complainant has categorically stated that there was no demand of money by the accused and factum of the demand and acceptance is not proved from the evidence of any of the panch witnesses who have been declared hostile before the learned Trial Court. That the accused cannot be convicted when there is no evidence whatsoever against the accused and hence, the appeal must be allowed and the accused must be acquitted for the said offences. 6. Learned Advocate Mr.Shakeel Qureshi for the accused has relied upon the following decisions: [i] Neeraj Dutta Vs. State (Govt. That the accused cannot be convicted when there is no evidence whatsoever against the accused and hence, the appeal must be allowed and the accused must be acquitted for the said offences. 6. Learned Advocate Mr.Shakeel Qureshi for the accused has relied upon the following decisions: [i] Neeraj Dutta Vs. State (Govt. of NCT of Delhi) reported in 2023 (0) AIJEL-SC 70625. [ii] P.Satyanarayana Murthy Vs. Dist. Inspector of Police reported in 2015(0) AIJEL – SC 57062. [iii] B. Jayraj Vs. State of Andhra Pradesh reported in 2014 (0) AIJEL-SC 55145 7. Learned APP Ms.Jirga Jhaveri for the respondent – State has opposed the present appeal and has submitted that the learned Trial Court has appreciated all the evidence in proper perspective and has rightly convicted the accused as the tainted currency notes were recovered from the possession of the present accused. That the learned Trial Court has, after fully appreciating the evidence, acquitted the other accused as there was no recovery of the tainted currency notes from them and there was no evidence of any demand of the co-accused. That the impugned judgment and order does not suffer from any infirmities and the learned Trial Court has rightly convicted the accused and hence, the present appeal may be dismissed. 8. Before appreciating the evidence produced by the prosecution on record before the learned Trial Court, it is necessary to reiterate the principles of cardinal jurisprudence as settled by the Apex Court in a catena of decision and the first principle is that the prosecution is required to prove their case beyond reasonable doubts and the prosecution cannot take any benefit of the weakness of the defence. The second cardinal principle is that in a criminal trial, the accused is presumed to be innocent until he is proved guilty by the evidence adduced by the prosecution on record beyond reasonable doubts and the third principle is that the onus of burden never shifts from the prosecution. 10. The Apex Court, in the case of Neeraj Dutta (Supra), relied upon by the learned advocate for the appellant has observed in Para-88, as under: 88. What emerges from the aforesaid discussion is summarised as under: 88.1. 10. The Apex Court, in the case of Neeraj Dutta (Supra), relied upon by the learned advocate for the appellant has observed in Para-88, as under: 88. What emerges from the aforesaid discussion is summarised as under: 88.1. (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. 88.2. (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. 88.3. (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. 88.4. (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 e 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 Sections 13(1)(d)(i) and (ii) of the Act. (iii) In both cases of (1) 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 Sections 13(1)(d)(i) and (ii), respectively of the Act. In other words, mere acceptance or receipt of an illegal gratification without anything more would not make it an offence under Section 7 or Sections 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 9 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 Sections 13(1)(d)(i) and (ii) of the Act. 88.5. (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. 88.6. (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. 88.7. (g) Insofar 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 Sections 13(1)(d)(i) and (ii) of the Act. 88.8. 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 Sections 13(1)(d)(i) and (ii) of the Act. 88.8. (h) We clarify that the presumption in law under Section 20 of the Act is distinct from presumption of fact referred to above in sub-para 88.5(e), above, as the former is a mandatory presumption while the latter is discretionary in nature.” 10.1. The Apex Court, in the case of K.Satyanarayana Murthy (Supra), has observed in Paras-21 and 22, as under: “20. Thus, this is a case where the demand of illegal gratification by the appellant was not proved by the prosecution. Thus, the demand which is sine qua non for establishing the offence under Section 7 was not established.” 22. As a corollary, failure of the prosecution to prove the demand for illegal gratification would be fatal and mere recovery of the amount from the person accused of the offence under Sections 7 and 13 of the Act would not entail his conviction thereunder.” 11. In view of the above settled principles of law in cases filed under the P.C.Act and mainly that the prosecution must prove the case against the accused beyond reasonable doubts the evidence is required to be dissected and the prosecution has examined PW-1 Kalusinh @ Kalubhai Balubhai at Exh.13 who has stated that Prabhatsinh, was the cousin of the complainant and his village is under the jurisdiction of Nizar Police Station and Kukarmunda outpost. That he does not know who was the police personnel in the Kukarmunda outpost in 1996 and he does not know anything about the incident. The witness has merely identified his signature on the complaint, which is produced at Exh.22. The witness has been declared hostile and has denied filing of the complaint and all the evidence mentioned as per the case of the prosecution and has denied knowing the accused. During the cross- examination by the learned advocate for the accused, the complainant has stated that he has not read the contents of the complaint. That no panchnama was drawn in his presence and no accused has ever demanded for any illegal gratification from him and has not accepted any amount from him. 11.1. The prosecution has examined PW-2 Jayantibhai Lalubhai Valand at Exh.23. That no panchnama was drawn in his presence and no accused has ever demanded for any illegal gratification from him and has not accepted any amount from him. 11.1. The prosecution has examined PW-2 Jayantibhai Lalubhai Valand at Exh.23. This witness is the panch witness and he has stated that he was called to the ACB Office, Surat and he and panch witness Manojkumar Maganlal Desai had gone to the ACB Office and met Police Inspector Mr. Rathod. The complainant Kalusinh @ Kalubhai Balubhai was present and both the panch witnesses were asked to remain as panch witnesses in a trap case. The complainant had not stated anything and they did not know that the complainant had filed the complaint. That Mr. Rathod, Police Inspector had given Rs.700/-, which were currency notes of the denomination of Rs.100/- each and Mr. Pagi, one staff member of the ACB Police Station was called, who had applied some powder on the currency notes. That they were shown the currency notes in the light of the battery and they saw shining marks on the currency notes. That he does not not what was done to the currency notes and no instructions were given to them. That they had gone to Kukarmunda Outpost and the complainant had spoken to the police personnel, but he does not know what conversation had taken between them. The witness has not identified the accused before the learned Trial Court. The witness has merely identified his signature on the panchnama, which is produced at Exh.24 and has sated that he had not read the panchnama, but the panchnama was written by Mr. Rathod, Police Inspector and he had signed the panchnama, which was already prepared. That no currency notes were recovered in his presence. The witness has been declared hostile and has been cross- examined at length by the learned Additional Public Prosecutor, wherein, he has stated that there was one electric bulb in front of the outpost and they had halted the Government vehicle near the outpost and he and the complainant had gone into the outpost, but he does not know who was the police personnel inside the outpost. The witness has denied that any conversation had taken place between the complainant and the accused or that the accused had demanded and accepted any amount and has also denied that the tainted currency notes were recovered from the accused No.1. During the cross-examination by the learned advocate for the accused, the witness has stated that he had not spoken to the complainant in the ACB office and the experiment of the anthracene powder and the ultraviolet lamp was conducted in the chamber of Mr.Rathod, Police Inspector. That he and other panch witness had not done anything in the ACB office and they had reached Kukarmunda Outpost at 9:00pm. That the village was a very small village and was having very less population and as it was dark, he could not make out whether there were any residential houses near the outpost. That there were normal lights besides the bulb in front of the outpost and he was standing outside the outpost during the entire procedure and he does not know what procedure had taken place inside the outpost. That nobody had demanded any illegal gratification from the complainant and nobody had accepted any amount from the complainant and there was no recovery from any of the accused. 11.2. The prosecution has examined PW-3 Manojkumar Maganlal Desai at Exh.27. This witness is the other panch witness, who was a member of the raiding party and the witness has stated that he had gone to the ACB police Station, but he does not know how many currency notes were there. That they had gone to Kukarmunda Outpost and had reached there at around 7:00pm and he along with the Police Sub Inspector and two constables had hid behind the police chowki. That he does not know whether anyone was caught in a trap of illegal gratification, but one person was caught outside the police chowki. That they were called inside the police chowki and their signatures were taken, but he does not remember what was seized. That no test of anthracene powder and ultraviolet lamp was conducted in the police chowki and the witness has merely identified his signature on the panchnama, which is produced at Exh.24. The witness has denied identifying any of the accused and has identified his signature on the seizure memo at Exh.25. That no test of anthracene powder and ultraviolet lamp was conducted in the police chowki and the witness has merely identified his signature on the panchnama, which is produced at Exh.24. The witness has denied identifying any of the accused and has identified his signature on the seizure memo at Exh.25. The witness has been declared hostile and has been cross-examined at length by the learned APP, but he has not supported the case of the prosecution. During the cross-examination by the learned advocate for the accused, this witness has stated that there was no intimation in writing to go as a panch witness and he had gone in the jeep with the police constable from the S.T.Depot. That he had not read over the panchnama and he had merely signed on the panchnama. 11.3. The prosecution has examined PW-4 Ajabsinh Mulsinh Rathod at Exh.37. This witness is the police Inspector of the ACB Police Station, Surat who has taken down the complaint of the complainant in his presence. That the witness has also made arrangement for the trap and has thereafter, investigated the entire offence and has filed the charge sheet before the learned Sessions Court on 04.08.1997. The witness has deposed in detail about the event that has unfolded right from filing of the complaint till laying of the trap and has done the entire investigation and that was carried out till filing of the charge sheet. During the cross-examination by the learned advocate for the accused, the witness has stated that he had not inquired about the character of the complainant, but he does not know as to whether the complainant had attacked the police personnel of the Nizar Police Station and whether any offence was registered against him. That he has not inquired as to whether any offence was registered against Prabhatsinh from 08.11.1996 to 18.11.1996. That he does not know as to whether the arrest memo of Prabhatsinh was prepared on 24.11.1996. That after the trap, Mr. Pagi, a police personnel of ACB Police Station has not conducted the ultraviolet lamp test on the hands of the accused No.1 and when the complainant and the shadow witness went into Kukarmunda Outpost and till return from there, they did not say as to whether the accused had demanded for any amount of illegal gratification. Pagi, a police personnel of ACB Police Station has not conducted the ultraviolet lamp test on the hands of the accused No.1 and when the complainant and the shadow witness went into Kukarmunda Outpost and till return from there, they did not say as to whether the accused had demanded for any amount of illegal gratification. That at that time, the accused had not accepted any amount of illegal gratification. That when he went into the police chowki after the pre-determined signal was given, there was no brass pot in the hands of the accused No.1 and at that time, other police personnel were present in the police chowki. That he had recorded the statement of the accused on 09.12.1996 and at that time, the accused No.1 had stated the complainant was standing near him and he had taken advantage of the darkness and put his hand in his pocket and at that time, the Trap Laying Officer had suddenly rushed inside. 11.4. The prosecution has examined PW-5 Gulabsinh Lalsinh Pagi at Exh.45. The witness is the police constable in the ACB Police Station, who has done the experiment of anthracene powder and the ultraviolet lamp. The witness has supported the case of the prosecution and has deposed about all the events that had taken place right from filing the complaint to laying of the trap and conducting the investigation and the witness was a member of the raiding party. 12. On minutely scrutinizing the entire evidence of the prosecution, the complainant and the panch witnesses have turned hostile and have not supported the case of the prosecution. That the complainant had completely resiled from his statement and the complaint and there is no iota of evidence about any demand made by the accused. It is the case of the prosecution that Prabhatsinh was arrested in a case filed under the Prohibition Act and the demand of illegal gratification was made for releasing the said Prabhatsinh, who was cousin brother of the complainant, on bail and the accused has also seized a brass pot from Prabhatsinh and the accused had demanded the amount of illegal gratification to release Prabhatsinh on bail and also to release the brass pot, which was seized. There is no iota of evidence to show that Prabhasinh was ever arrested by the accused or that the offence under the Prohibition Act being Part-III C.R.No.184 of 1996 was registered in Nizar Police Station on 21.11.1996 and as to whether said Prabhatsinh was arrested and released on bail. The only evidence that has come on record is the evidence of PW-4 Ajabsinh Mulsinh Parmar and PW-5 Gulabsinh Lalsinh Pagi, but if the evidence of both these witnesses are minutely appreciated, it has come on record that the complainant has not supported the case of the prosecution and the factum of demand and acceptance is also not proved from the deposition of the shadow witness i.e. the independent panch witness, who was the member of the raiding party and had gone into Kukarmunda Outpost along with the members of the raiding party. Admittedly, it has come on record that at the time of raid, it was dark and there was no single light in front of the outpost and it is the defense of the accused that taking the advantage of the darkness, the complainant had forcibly put the tainted currency notes in his pant pocket. That if the deposition of the Trap Laying Officer and the Lamp Operator is considered, the recovery of the tainted currency notes from the possession of the accused No.1 is made out, but in view of the settled principles of law that proof of demand is a sine qua non for an offence under the P.C.Act, the deposition of the Trap Laying Officer, who is the officer before whom the complaint has been registered, the Trap Laying Officer and the Investigating Officer cannot be believed and a shadow of doubt is cast on the deposition of this witnesses. Proof of demand beyond reasonable doubts is an indispensable essentiality and permeating mandate for an offence u/s. 7 and 13 of the P.C.Act and it is settled law that in absence of proof of demand, the legal presumption u/s. 20 of the P.C.Act would not arise and mere recovery of any tainted currency notes from the accused dehors the proof of demand would not be sufficient to bring home the charge against the accused. 13. 13. On meticulous dissection of the oral as well the documentary evidence that have been brought on record by the prosecution, the infirmities in the case of the prosecution have come to the surface and there is no iota of evidence to prove that there was any demand made by the accused for any amount of illegal gratification for any reasons, whatsoever, from the complainant. That the prosecution has completely failed to establish the demand and the acceptance and from the evidence of the independent witnesses and on perusal of the entire evidence on record, it can sufficiently be said that there is no admissible evidence, whatsoever, against the accused and the prosecution has miserably failed to prove the case against the accused beyond all reasonable doubts. Moreover, as the complaint has been filed before Mr.Ajabsinh Malsinh Rathod, Police Inspector, ACB Police Station, Surat and he has arranged for the trap and has investigated the offence and filed the charge sheet, it is an infirmity in the case which reflects on the credibility of the case of the prosecution and on this count alone, the case of the prosecution must fail. The evidence of the prosecution on record is contrary and far of convincing and there is no reliable evidence to support the conviction of the accused. The learned Trial Court has not appreciated the evidence in proper perspective and the impugned judgment and the order is perverse and illegal and failure of the prosecution to prove the demand of illegal gratification is fatal and does not entail a conviction. As there is a complete absence of incriminating material or other corroborative evidence pointing to the participation of the accused in the offence. In the considered opinion of this Court the conviction cannot be sustained and the appeal succeeds and is allowed. 14. The impugned judgment and order of conviction in Special (ACB) Case No. 54 of 1997 passed by the learned Presiding Officer, 3rd Fast Track Court, Surat on 15.10.2007 for the offences punishable under Sections 7, 13(1)(d) and 13(2) of the P.C.Act, 1988 is hereby quashed and set aside and the accused is acquitted from all the charges against him. Bail bonds stand cancelled. Fine to be refunded to the accused after due verification. 15. Record and proceedings be sent back to the concerned Trial Court forthwith.