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2024 DIGILAW 795 (GUJ)

Barot Bhogilal Punjiram v. State Of Gujarat

2024-04-05

S.V.PINTO

body2024
JUDGMENT : 1. This appeal has been filed by the appellant under Section 374 of the Code of Criminal Procedure, 1973 against the judgement and order of conviction passed by the learned Special Judge (ACB), Mehsana (hereinafter referred to as “the learned Trial Court”) in Special ACB Case No. 1 of 2006 on 30.10.2007, whereby, the learned Trial Court has convicted and sentenced the appellant to two years simple imprisonment and a fine of Rs. 3,000/- and in default, simple imprisonment for three months for the offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (hereafter referred to as “the PC Act” for short) and two years simple imprisonment and fine of Rs. 3,000/-and in default, simple imprisonment for three months for the offence punishable under Section 13(1)(d) of the PC Act. The appellant is hereinafter referred to as the accused as he stood in the original case for the sake of convenience, clarity and brevity. 2. The brief facts that emerge from the record of the case are as under: 2.1 That the accused was working as an ASI in Vadnagar Police Station at Vadnagar, District Mehsana and was a public servant and the complainant had filed M Case No. 1/2005 before the learned Judicial Magistrate First Class, Vadnagar and the accused was conducting an inquiry into the M Case. That some affidavits were filed by some trustees in favour of the persons against whom the complainant had filed the M Case and the complainant had demanded copies of the said affidavits from the accused. That the accused had demanded for an amount of Rs. 1500/- as illegal gratification from the complainant but after bargaining, the amount was fixed at Rs. 500/- and the accused had told the complainant that he would come to Mehsana Court on 08.08.2005. That the complainant did not want to give the amount of illegal gratification to the accused and hence, went to the ACB Police Station, Mehsana and filed a complaint on 08.08.2005 under Sections 7, 13(1)(d) and 13(2) of the PC Act which was registered at C.R. No. 5/2005. That the Trap Laying Officer called the panch witnesses and after the characteristics of phenolphthalein powder and sodium carbonate solution was explained and the experiment was conducted in the presence of the panch witnesses and the complainant, a trap was arrangedon 08.08.2005. That the Trap Laying Officer called the panch witnesses and after the characteristics of phenolphthalein powder and sodium carbonate solution was explained and the experiment was conducted in the presence of the panch witnesses and the complainant, a trap was arrangedon 08.08.2005. That the complainant and the shadow witness went to the court compound at Mehsana and at that time the accused took the complainant and the panch witness to the tea stall just near the gate of the court compound and demanded for the amount of Rs. 500/- and the complainant took the tainted currency notes and offered it to the accused and the accused accepted it with his left hand and took the tainted currency notes in his right hand and placed it in his right side shirt pocket. That the complainant gave the predetermined signal and the Trap Laying Officer, panch witness no. 2 and the members of the raiding party came and the accused was caught red handed. That the Investigating Officer investigated the offence and after the statements of the connected witnesses were recorded and the necessary panchnamas were drawn and after the order of sanction for prosecution was received, a charge-sheet was filed before the Sessions Court, Mehsana which came to be registered as Special ACB Case No. 1/2006. 2.2 The accused was duly served with the summons and the accused appeared before the learned Trial Court, and after the due procedure under Section 207 of the Code of Criminal Procedure was followed, a 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 allegations made in 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. Sr. No. PW Particulars Exh. 1. 1 Manilal Bechardas Patel 25 2. 2 Deepsinh Amarsing Zala 31 3. 3 Umedsinh Ravaji Thakor 37 4. 4 Chandubhai Rupaji Kotad 41 2.4 The prosecution has produced the following documentary evidences in support of their case. Sr. No. Particulars Exh. 1. Complaint 26 2. Trap panchnama 32 3. Yadi to call panchas 33 4. Seizure Memo 34 5. Application of Vitthalbhai 38 6. Bill of Gurukrupa Zerox Centre 39 7. Deputation order of accused as IO in M Case No. 1/2005 and copy of FIR. 42 8. Sr. No. Particulars Exh. 1. Complaint 26 2. Trap panchnama 32 3. Yadi to call panchas 33 4. Seizure Memo 34 5. Application of Vitthalbhai 38 6. Bill of Gurukrupa Zerox Centre 39 7. Deputation order of accused as IO in M Case No. 1/2005 and copy of FIR. 42 8. Case Diary of M Case No. 1/2005 43 9. Appointment order and service book of accused 44 10. Dispatch Note 45 11. Receipt of muddamaal received by FSL, Ahmedabad 46 12. Analysis Report of FSL 47 13. Order of sanction for prosecution. 48 2.5 After the learned APP filed the closing pursis at Exh. 49, the further statement of the accused under Section 313 of the Code of Criminal Procedure was recorded, wherein, the accused denied all the evidence against him and stated that he was investigating the case filed by the complainant and he had not arrested the persons against whom the complainant had filed the complaint as there was no evidence against them. That he has been falsely implicated by the complainant and the shirt that is seized by the Investigating Officer does not belong to him. That the arguments of the learned APP and the learned advocate for the accused were heard and by the impugned judgement and order 30.10.2007, the learned Special Judge (ACB), Mehsana was pleased to convict the accused and sentence the accused to two years simple imprisonment and fine of Rs. 3,000/- and in default, simple imprisonment for three months for the offence punishable under Section 7 of the PC Act and two years simple imprisonment and fine of Rs. 3,000/- and in default, simple imprisonment for three months for the offence punishable under Section 13(1)(d) of the PC Act. The learned Trial Court was further pleased to order that all the sentences were to run concurrently. 3. Being aggrieved and dissatisfied with the said judgement and order of conviction, the appellant has filed the present appeal mainly stating that the impugned judgement and order of conviction and sentence passed by the learned Trial Court is contrary to the provisions of law and against the weight of evidence on record. That the learned Trial Court has not appreciated the evidence produced by the prosecution in proper perspective and in fact, the evidence is not sufficient to prove the charge against the accused. That the learned Trial Court has not appreciated the evidence produced by the prosecution in proper perspective and in fact, the evidence is not sufficient to prove the charge against the accused. That from the deposition of the panch witness, it is clear that the accused has not demanded for any amount of illegal gratification and hence, the important ingredient of demand of illegal gratification is not proved beyond reasonable doubts. That the learned Trial Court has not appreciated the fact that the complainant had filed a complaint in the Vadnagar Court against three former trustees of one trust and the accused was investigating the offence. That the accused had filed a summary report before the concerned Court and the accused were not arrested as they were absconding and the complainant had a grievance against the accused as he had not arrested the trustees against whom the complainant had filed the complaint. That moreover, the complainant is habitual of threatening persons and filing false complaints against them and the entire people of the village had externed him from his village. That it has come on record that the complainant had filed FIRs against 44 persons of his village and merely as the accused did not arrest the persons against whom the complainant had filed the case, the complainant has filed a false case against the accused. That no demand was made by the accused at any point of time and as per the say of the complainant, the accused had telephoned him in the morning on 01.08.2005 and told him that the copies of the affidavits are ready and had called him to Mehsana Court with Rs. 500/- but when the complainant went on 01.08.2005, the accused was not there. That the learned Trial Court has not considered that if the demand of illegal gratification of Rs. 500/- was made by the accused, the accused would have remained present on 01.08.2005 before the Court at Mehsana to collect the amount of illegal gratification from the complainant. 500/- but when the complainant went on 01.08.2005, the accused was not there. That the learned Trial Court has not considered that if the demand of illegal gratification of Rs. 500/- was made by the accused, the accused would have remained present on 01.08.2005 before the Court at Mehsana to collect the amount of illegal gratification from the complainant. Moreover, as per the case of the prosecution, the accused had demanded the amount and had told the complainant that the amount was to be paid in the office of the Government Pleader on 08.08.2005 but it has also come on record that the complainant and the accused were alone in the office of the Government Pleader at Mehsana on 08.08.2005 but at that time the accused did not demand for any amount. That there is no evidence to prove the prior demand and the demand on the date of the trap and there is evidence to the effect that the complainant had given a currency note of Rs. 50/- to the panch witness to get the zerox copies of the affidavits made but as per the case of the prosecution, when the complainant was searched at the ACB Office before the trap was arranged, there was no such currency note of Rs. 50/- in his possession. There is no explanation whatsoever as to how this currency note of Rs. 50/- came to the possession of the complainant and the learned Trial Court has not considered the fact that the accused would not accept the amount of illegal gratification near the tea stall which was surrounded by many persons when the accused had the opportunity of accepting the tainted currency notes in the office of the Government Pleader where there was no other persons besides the complainant and the accused. Moreover, the learned Trial Court has not appreciated the fact that when the panch witness reached the office of the ACB on 08.08.2005, the complaint was already written and there is no clear evidence about the application of phenolphthalein powder on the currency notes. That in fact, the learned Trial Court has not considered the defence of the accused that the complainant had given the tainted currency notes of Rs. That in fact, the learned Trial Court has not considered the defence of the accused that the complainant had given the tainted currency notes of Rs. 500/- without any demand from the accused and the complainant tried to push the tainted currency notes in the hands of the accused and the accused refused to accept the same but at that time, the Investigating Officer came and arrested him. That the entire story of the prosecution is untrustworthy, got up, concocted and highly improbable and merely because the accused was the Investigating Officer of M Case No. 1/2005 filed by the complainant and the accused did not arrest the persons against whom the complainant had filed the complaint, the complainant had an axe to grind and a false case has been filed against him. That the learned Trial Court has not appreciated the entire evidence in proper perspective and there is no cogent, convincing and reliable evidence to convict the accused but the learned Trial Court has false convicted the accused and hence, the appeal must be allowed and the accused must be acquitted from all the offences. 4. Heard learned advocate Mr. Mehul Sharad Shah for the appellant and learned APP Ms. Jirga Jhaveri for the respondent – State. 5. Learned advocate Mr. Mehul Sharad Shah for the appellant has taken this Court through the entire evidence of the prosecution and has submitted that in cases under the PC Act, the credibility of the complainant and the panch witnesses is of utmost importance and there should not be any doubt in the mind of the learned Trial Court that the complainant and the panch witnesses are credible and their testimony must be believable. That the prosecution also has to prove the demand of illegal gratification to such an extent and it must also be proved that the accused had voluntarily accepted the tainted currency notes knowing it to be a bribe and this must be proved beyond reasonable doubts. That the presumption is permissible to be drawn under Section 20 of the PC Act only in reference to the offence under Section 7 and the presumption can be drawn only if there is proof of acceptance of illegal gratification. That the presumption is permissible to be drawn under Section 20 of the PC Act only in reference to the offence under Section 7 and the presumption can be drawn only if there is proof of acceptance of illegal gratification. That if no such evidence is produced by the prosecution that the accused voluntarily accepted money knowing it to be bribe, mere recovery of the tainted currency notes without proof of demand would not entail the person to be convicted under the Act. That unless both demand and acceptance are established beyond reasonable doubts, the person cannot be convicted and as per the case of the prosecution, the appellant was working as an ASI at Vadnagar Police Station and the complainant was the complainant in M Case No. 1/2005. The complainant has alleged that the accused had demanded for an amount of illegal gratification on 30.07.2005 when the complainant met the accused at Vadnagar Court and the accused had demanded for the amount as the complainant wanted the copies of the affidavits that were filed by certain persons in favour of the persons against whom the complainant has filed the case. The complainant has specifically stated that the accused had told the complainant to remain present on 01.08.2005 as he was to remain present in the Court at Mehsana on 01.08.2005 but the accused was not present in the Court on 01.08.2005. That if the accused had demanded for the amount of illegal gratification, he would have naturally remained present in the Court on 01.08.2005. That the complainant had visited the Vadnagar Court on 01.08.2005 but he could not meet the accused and had also visited Visnagar but he could not contact the accused and hence, the trap that was arranged on 01.08.2005 had failed. That the next date of hearing before the learned Sessions Court was on 08.08.2005 and the complainant was aware that the accused would be present in the Court on 08.08.2005 and hence, the complainant concocted the story that the accused had telephoned him and called him to the Court on 08.08.2005. That the next date of hearing before the learned Sessions Court was on 08.08.2005 and the complainant was aware that the accused would be present in the Court on 08.08.2005 and hence, the complainant concocted the story that the accused had telephoned him and called him to the Court on 08.08.2005. That the complainant has stated that he met the accused on 08.08.2005 along with the panch witness in the office of the Government Pleader but at that time, as per the evidence of the prosecution, the copies of the affidavits were not ready and the panch witness was sent to get the photocopies of the affidavits. It is on record that the complainant had given a currency note of Rs. 50/- to the panch witness to get the photocopies of the affidavits but in the panchnama, it is clearly mentioned that when the complainant was searched by the panch witness no. 1 before the trap, the complainant had worn a full sleeved white colour kurta and white pajama and in the left side pocket of the pajama, there were bills and papers and one currency note of denomination of Rs. 500/- and five currency notes of denomination of Rs. 100/- and in all an amount of Rs. 1000/- and in the right side pocket were the keys of the car. That five currency notes of the denomination of Rs. 100/- each which were given by the complainant to the Trap Laying Officer on 01.05.2005, were taken from the cupboard in the ACB Office and phenolphthalein powder was applied to them and placed in the left side pocket of the kurta of the complainant. Hence, the complainant did not have the currency note of Rs. 50/-with him and the say of the complainant is not believable that he had given the currency note of Rs. 50/- to the panch no. 1. Moreover, as per the case of the complainant, he had visited the police station at around 10.00 am for filing the complaint and the panchanama was started at 11.15 am. That there is no evidence that the accused had demanded for any amount of illegal gratification and as per the say of the panch witness, the accused has asked to “understand the transaction” and these words do not constitute a demand under the PC Act. That there is no evidence that the accused had demanded for any amount of illegal gratification and as per the say of the panch witness, the accused has asked to “understand the transaction” and these words do not constitute a demand under the PC Act. That there is no evidence that the accused had made any specific demand of illegal gratification and the learned Trial Court has not considered that if the accused wanted to accept the amount of illegal gratification he would have demanded and accepted for the same while he and the complainant were alone in the office of the Government Pleader. That the prosecution has failed to prove the first demand and the second demand and it is the defence of the accused that the shirt that was seized by the Investigating Officer did not belong to him and in fact, one yellow shirt is recovered by the Investigating Officer but in fact, there is evidence on record that the accused had worn a black shirt on the day of the trap. The learned advocate for the appellant has further submitted that as per the case of the petitioners, the demand and acceptance for the amount of illegal gratification has been made at the tea stall and the tea stall was surrounded by a large number of persons but the Investigating Officer has not recorded the statements of the other persons who were present at the time of the trap or the tea stall owner. That even the sanction is not a legal sanction and learned advocate for the appellant has submitted that merely few words are not sufficient to convict the accused and the prosecution must prove their case beyond reasonable doubts. That the demand and acceptance are not proved by the prosecution and mere recovery of money from the accused is not sufficient to attract the offence under the PC Act. That the learned Trial Court has grossly erred in convicting the accused and hence, the appeal must be allowed and the accused must be acquitted of the offences. 5.1 Learned advocate for the appellant has relied upon the following judgements in support of his case: 1. Hari Dev Sharma Vs. State (Delhi Admn.) reported in (1977) 3 SCC 352 . 2. Kishorchand Mansukhlal Joshi Vs. State of Gujarat reported in 1985 GLH 103 . 3. Suraj Mal Vs. 5.1 Learned advocate for the appellant has relied upon the following judgements in support of his case: 1. Hari Dev Sharma Vs. State (Delhi Admn.) reported in (1977) 3 SCC 352 . 2. Kishorchand Mansukhlal Joshi Vs. State of Gujarat reported in 1985 GLH 103 . 3. Suraj Mal Vs. State (Delhi Admn.) reported in (1979) 4 SCC 725 . 4. B. Hayaraj Vs. State of A.P. reported in (2014) 13 SCC 55 . 5. N. Vijayakumar Vs. State of Tamil Nadu reported in (2021) 3 SCC 687 . 6. K. Shanthamma Vs. State of Telangana reported in (2022) 4 SCC 574 . 7. Neeraj Dutta Vs. State (NCT of Delhi) reported in 2022 0 Supreme (SC) 1248. 8. Soundarajan Vs. State reported in 2023 SCC Online SC 424. 9. Mohd. Iqbal Ahmed Vs. State of Andhra Pradesh reported in (1979) 4 SCC 172 . 10. Mansukhlal Vithaldas Chauhan Vs. State of Gujarat reported in (1997) 7 SCC 622 . 6. Learned APP Ms. Jirga Jhaveri has submitted that the prosecution has proved the case against the accused beyond reasonable doubts and the complainant and also the panch witness have fully supported the case of the prosecution. That the learned Trial Court has rightly appreciated all the evidence and there is no scope of interference in the impugned judgement and order and hence, the appeal must be rejected. 6.1 Learned APP Ms. Jirga Jhaveri for the respondent –State has relied upon the following judgements: 1. Raj Rajendra Singh Seth Vs. State of Jharkhand and Anr. reported in (2008) 11 SCC 681 . 2. Vinod Kumar Garg Vs. State (Government of National Capital Territory of Delhi) reported in (2020) 2 SCC 88 . 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, before appraisal of the evidences produced by the prosecution before the learned Trial Court, it would also be appropriate to refer to observations of the Hon’ble Apex Court in the case of Neeraj Datta (supra), wherein, the Hon’ble Apex Court in para 68 has observed as under: “68. What emerges from the aforesaid discussion is summarised as under: (a) Proof of demand and acceptance of illegal gratification by a public servant as a fact in issue by the prosecution is a sine qua non in order to establish the guilt of the accused public servant under Sections 7 and 13 (1)(d) (i) and(ii) of the Act (b) In order to bring home the guilt of the accused, the prosecution has to first prove the demand of illegal gratification and the subsequent acceptance as a matter of fact. This fact in issue can be proved either by direct evidence which can be in the nature of oral evidence or documentary evidence. (c) Further, the fact in issue, namely, the proof of demand and acceptance of illegal gratification can also be proved by circumstantial evidence in the absence of direct oral and documentary evidence. (d) In order to prove the fact in issue, namely, the demand and acceptance of illegal gratification by the public servant, the following aspects have to be borne in mind: (i) if there is an offer to pay by the bribe giver without there being any demand from the public servant and the latter simply accepts the offer and receives the illegal gratification, it is a case of acceptance as per Section 7 of the Act. In such a case, there need not be a prior demand by the public servant. (ii) On the other hand, if the public servant makes a demand and the bribe giver accepts the demand and tenders the demanded gratification which in turn is received by the public servant, it is a case of obtainment. In the case of obtainment, the prior demand for illegal gratification emanates from the public servant. (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 inturn 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. (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. As per the settled principles of law in Neeraj Dutta (supra), in conviction appeals, the prosecution has to prove the ingredients of demand and acceptance of illegal gratification by a public servant beyond reasonable doubts and for that, a minute dissection and re-appreciation of all the evidences produced by the prosecution before the learned Trial Court is essential. The prosecution has examined the complainant PW1 – Manilal Bechardas Patel at Exh. 25 and this witness has stated that the administration of Sai Dham Mukti Dham Temple was being done by Shri Sai Ram Mukti Dham Temple Trust and he is the President of the trust. That earlier, the administration was being done by others and some irregularities were found in the administration and hence, he had filed a case in the Court at Vadnagar on 04.06.2005. That the case was sent for investigation under Section 156(3) of the Code of Criminal Procedure by the learned Court and M Case No. 1/2005 was registered and the present accused was investigating the matter. That the case was sent for investigation under Section 156(3) of the Code of Criminal Procedure by the learned Court and M Case No. 1/2005 was registered and the present accused was investigating the matter. That the accused had not arrested the persons against whom the case was filed and he had met the accused at the Vadnagar Police Station in the second week of July and at that time he was told that the persons against whom he had filed the case, had filed an anticipatory bail application and it was adjourned on 25.07.2005. That the accused had also told him that some trustees have filed affidavits in favour of those persons against whom he had filed the case and a ‘B Summary’ would be filed in that case. That he had gone to the Mehsana Court on 25.07.2005 and the matter was adjourned to 27.07.2005. That once again he had gone to the Court on 27.07.2005 and the matter was adjourned to 01.08.2005. That he had gone to the Vadnagar Court on 30.07.2005 and at that time, had met the accused who had asked him whether he had received the copies of the affidavits and the complainant had refused and at that time, the accused had asked him as to whether he wanted copies of the affidavits. The complainant had replied in the affirmative and at that time the accused demanded an amount of illegal gratification of Rs. 1500/- for copies of the affidavits and after bargaining, the amount was fixed at Rs. 500/-. That the accused had told him to come to the Court at Mehsana on 01.08.2005 and to take the copies of the affidavits and on 01.08.2005 at around 8.00 – 9.00 am in the morning, the accused had told him that he would come to the Court at Mehsana and demanded the amount of illegal gratification of Rs. 500/-. That he had contacted the ACB Office at around 10.00 am and had filed the complaint which is produced at Exh. 26. That a trap was arranged and the panch witnesses were called and the entire experiment of phenolphthalein powder and solution of sodium carbonate was done and explained to the panch witnesses and the complainant and he had given five currency notes of denomination of Rs. 100/- each on which phenolphthalein powder was applied and the tainted currency notes were placed in his pocket. 100/- each on which phenolphthalein powder was applied and the tainted currency notes were placed in his pocket. That he and the panch witness no. 1 had gone to the Mehsana Court Compound and on inquiry found that as the matter was adjourned, the accused had left the Court. That from Mehsana they went to ITI College, Visnagar and the complainant made a call to the residence of the accused but he was not at home and hence, the complainant made a call to Vadnagar Police Station. That the accused was not in Vadnagar Police Station and the trap failed and the tainted currency notes were taken by the Trap Laying Officer. That on 03.08.2005, the accused phoned him and told him to come to the Court at Mehsana on 08.08.2005 and once again the accused phoned him on 07.08.2005 and told him to come to the Court at Mehsana on 08.08.2005. That the trap was arranged once again on 08.08.2005 and the complainant and the panch witness went to the Court at Mehsana and at around 11.00 am, the accused came and went into the office of Government Pleader. That the complainant and the panch no. 1 went into the office of the Government Pleader and the accused had taken out his black shirt and worn his uniform and had told the complainant that the photocopies of the affidavits were yet to be made. That panch no. 1 was sent to get the photocopies of the affidavits and the complainant had given a currency note of Rs. 50/- and told the complainant to get the photocopies from Gurukrupa Zerox Centre and to bring a bill for the same. That the panch got the photocopies made and gave the photocopies and the bunch of papers to the accused and the bill of Gurukrupa Zerox Centre and the remaining amount of Rs. 43/- to the complainant. That thereafter, they came to the Court and after the matter was adjourned, they came out of the Court and went to the tea stall just inside the Court Compound and they had tea and at that time the complainant paid the amount of Rs. 8/- for the tea. 43/- to the complainant. That thereafter, they came to the Court and after the matter was adjourned, they came out of the Court and went to the tea stall just inside the Court Compound and they had tea and at that time the complainant paid the amount of Rs. 8/- for the tea. That once again the accused demanded the amount and the complainant took the tainted currency notes with his right hand and gave it to the accused who accepted it with his left hand and placed it in his right side shirt pocket with his right hand. That the complainant gave the predetermined signal and the members of the raiding party came and caught the accused red handed. During the cross-examination by the learned advocate for the accused, the complainant has stated that on 08.08.2005, no experiment was conducted on the currency notes and on 01.08.2005, the complainant and the panch witness went straight into the Court room and at that time, the accused was not present. That it is not mentioned that he had a currency note of Rs. 50/- at any place in the panchnama and when they went to the office of the Government Pleader, there were other persons in the lobby. That the accused had earlier told him that the photocopies were made but thereafter told him that the photocopies were not made. That there are facilities for making photocopies in the Court Compound but the accused had told him to get the photocopies at Gurukrupa Zerox Centre. That till the panch witness went to get the photocopies, the accused and he were in the office of the Government Pleader and at that time, the accused did not demand for any money and no conversation had taken place between them. That ten pages were to be photocopied and at the time of the trap, a number of persons had gathered. That the accused had filed a summary report before the Court of Judicial Magistrate at Vadnagar on 30.07.2005 and he was externed from the village by the village people. The witness has also admitted that he had filed 44 cases against persons from his village. 8.1 The prosecution has examined PW2 – Deepsinh Amarsing Zala at Exh. That the accused had filed a summary report before the Court of Judicial Magistrate at Vadnagar on 30.07.2005 and he was externed from the village by the village people. The witness has also admitted that he had filed 44 cases against persons from his village. 8.1 The prosecution has examined PW2 – Deepsinh Amarsing Zala at Exh. 31 and this witness is the panch witness who has fully supported the case of the prosecution and has narrated the events that had taken place right from the time when he was called to the ACB Office and when he had gone on 01.08.2005 to the Court and thereafter, did not find the accused and the trap had failed. That once again he was called on 08.08.2005, and he had gone with the complainant to the Mehsana Court. That he was told to get the photocopies of the affidavits and he was given a bunch of papers by the complainant and the complainant gave him a currency note of Rs. 50/- from his pocket and told him to get photocopies of the same. That the accused had told him to get the zerox copy from Gurukrupa Zerox which was opposite the bus stand and he went and got the photocopies and paid an amount of Rs.7/- and got the remaining amount of Rs.43/-. That he had given the bunch of papers and the photocopies to the accused and the bill of the photocopies and Rs.43/- to the complainant. That thereafter, they went into the Court room and after the matter was adjourned, they went to have tea and at that time, the accused had told the complainant to “complete the transaction” and the complainant took the tainted currency notes with his right hand and the accused accepted it with his left hand and took it in his right hand and put it in his pocket. That the predetermined signal was given and the members of the raiding party came and the members of the raiding party and the accused went to the fruit cart which was on the opposite side of the road. That during the cross-examination by the learned advocate for the accused, the witness has stated that he was not informed by his office to go the ACB Office on the 08.08.2005 but the Trap Laying Officer had called him and told him to remain present on 08.08.2005. That during the cross-examination by the learned advocate for the accused, the witness has stated that he was not informed by his office to go the ACB Office on the 08.08.2005 but the Trap Laying Officer had called him and told him to remain present on 08.08.2005. That on 08.08.2005, no phenolphthalein powder was applied on the notes and the complainant was searched on that day and the front pocket of his kurta was empty. That on the search of the complainant, one currency note of denomination of Rs. 500/- and five currency notes of the denomination of Rs. 100/- each were found and in all an amount of Rs. 1,000/- was found with the complainant and a note to that effect was made in the panchnama. That he does not know as to what conversation has taken place between the complainant and the accused when he had gone to get the photocopies and the accused had not given the photocopies to the complainant. That the experiment of sodium carbonate solution was conducted near the wall of the quarters of the Civil Hospital on the fruit stall. 8.2 The prosecution has examined PW3 – Umed Ravaji Thakor at Exh. 37 and this witness is the Trap Laying Officer who has narrated all the events that had taken place from the time that he had noted the complaint of the complainant till the trap was successful. During the cross-examination by the learned advocate for the accused, the witness has stated that the pocket of the complainant was empty and when the complainant was searched, Rs.1,000/-was found in his possession. That the complainant had the keys of the car and other miscellaneous papers which were kept in his pocket. That after the trap, the experiment was done at the fruit stall. 8.3 The prosecution has examined PW4 – Chandubhai Rupaji Kotad at Exh. 41 and this witness is the Investigating Officer who has investigated the offence and has filed the charge-sheet against the accused after receiving the order for sanction for prosecution. During the cross-examination, the witness has admitted that he had prepared a draft and sent it to the Head Office for grant of sanction for prosecution and he has not recorded the statement of the persons who were near the tea stall and the fruit stall. During the cross-examination, the witness has admitted that he had prepared a draft and sent it to the Head Office for grant of sanction for prosecution and he has not recorded the statement of the persons who were near the tea stall and the fruit stall. That he had not recorded the statement of the owner of Gurukrupa Zerox Centre and in the papers that were received by him, there was a bill of Gurukrupa Zerox Centre. That the bill was for seven photocopies and Rs. 7/-was paid. That he had received the copies of affidavits and the affidavits consist of eleven pages. That he had not inquired about the telephone register of Vadnagar Police Station and he has not taken the print out from the mobile company to find as to whether the accused had phoned the complainant. That the accused had filed the summary report before the Court of learned Judicial Magistrate First Class on 30.07.2005 and when he had recorded the statement of the complainant, the complainant had not stated that he had a currency note of Rs. 50/- in his possession. 9. On appreciating the entire evidence of the prosecution, as per the case of the prosecution the first demand has been made by the accused on the telephone but the complainant has not given his telephone number or the telephone of the police station where the complainant had contacted the accused. Moreover, there is no time stated as to when the demand was made and the complainant has stated that the initial demand was made on 30.07.2005 in the Court at Vadnagar. The complainant has not stated as to who was him at the time when the demand was made and as per the case of the prosecution, the summary report was filed in the Vadnagar Court on 30.07.2005. That in the entire evidence, as per the case of the prosecution, the accused had demanded for the amount of illegal gratification of Rs. 500/-from the complainant for the copies of the affidavits which were filed by the trustees in favour of the persons against whom the complainant has filed the complaint in the Vadnagar Court but there is no evidence that the photocopies of the affidavits were ever handed over to the complainant at any point of time by the accused. 500/-from the complainant for the copies of the affidavits which were filed by the trustees in favour of the persons against whom the complainant has filed the complaint in the Vadnagar Court but there is no evidence that the photocopies of the affidavits were ever handed over to the complainant at any point of time by the accused. In the evidence, the complainant Manilal Bechardas Patel and the panch witness Deepsinh Amarsing Zala have narrated in detail the events that had occurred on 08.08.2005 when they went to the District Court, Mehsana and they met the accused and went along with the accused to the office of the Government Pleader and at that time, the accused had changed his black shirt and worn his Khakhi Shirt and thereafter, the accused had inquired from the complainant about the identity of the panch witness and the complainant had stated that he was his bodyguard and the accused had stated that the photocopies were not made and the accused took the bunch of papers and gave it to the complainant and the complainant gave the bunch of papers along with a currency note of Rs.50/- to the panch witness and told him to get the photocopies of the affidavits. That both the complainant and the panch witness have categorically stated that when the panch witness came back from Gurukrupa Zerox Centre after getting the photocopies of the affidavits, the bunch of papers along with the photocopies were handed over to the accused and the bill of Gurukrupa Zerox Centre and the change of Rs. 43/- was handed over to the complainant. That thereafter, the accused, the complainant and the panch witness went to the court room and once again they came back to the office of Government Pleader where the accused changed his clothes and the three of them went to the tea stall to have tea. That after they had tea, the complainant paid the amount of Rs. 8/- as charges towards tea and at that place also there is no evidence that the photocopies of the affidavits were handed over to the complainant. That after they had tea, the complainant paid the amount of Rs. 8/- as charges towards tea and at that place also there is no evidence that the photocopies of the affidavits were handed over to the complainant. Both the complainant and the panch witness say that the accused had, at that time, told the complainant to complete the transaction but both the complainant and the panch witness do not state that the accused had taken the photocopies of the affidavits and given it to the complainant. Both the complainant and the panch witness have stated that on the accused telling the complainant to “complete the transaction”, the complainant took the tainted currency notes with his right hand and gave it to the accused who took with his left hand and placed it in his right hand and put it in his pocket. But at that time, there is no evidence to show that the complainant had demanded for the photocopies of the affidavits which were to be handed over by the accused to the complainant in exchange of the illegal gratification. If the panchnama which is produced at Exh. 32 is perused, there is no evidence that the photocopies of the affidavits were given by the accused to the complainant and even in the panchnama it is not mentioned that the photocopies of the affidavits were recovered from the complainant. 9.1 As per the panchnama, prior to going for the trap, the complainant was searched by the panch witness and at that time, one currency note of the denomination of Rs. 500/-and five currency notes of the denomination of Rs. 100/-each were found from the custody of the complainant which were left in his pocket along with some miscellaneous papers along with the car keys. There is no mention of anything besides these that was found from the possession of the complainant during his search and the complainant and the panch witness do not state that the complainant had anything else besides these things in his possession. As per the evidence of the prosecution, when the accused had told the complainant to get the photocopies of the affidavits, the complainant told the panch witness to get the photocopies from Gurukrupa Zerox Centre and the complainant had given a currency note of Rs.50/- which he had taken from his possession and given to the panch witness. As per the evidence of the prosecution, when the accused had told the complainant to get the photocopies of the affidavits, the complainant told the panch witness to get the photocopies from Gurukrupa Zerox Centre and the complainant had given a currency note of Rs.50/- which he had taken from his possession and given to the panch witness. There is no explanation about how this currency note of Rs. 50/- came to the possession of the complainant and during the cross-examination of the Trap Laying Officer – PW3 – Umedsinh Ravaji Thakor, he had stated that by mistake it was not mentioned in the panchnama. This explanation is not sufficient as the panchnama clearly states that panch no. 1 had searched the complainant and only those the currency notes mentioned in the panchnamas, miscellaneous documents and the car keys were found in the possession of the complainant and hence, the possession of currency note of Rs. 50/- is highly doubtful and not properly explained by the prosecution. There is ample evidence to the effect that when the panch witness went to get the photocopies of the affidavits, the accused and the complainant were alone in the office of the Government Pleader but it appears that at that time, the accused did not demand for the amount of illegal gratification. Admittedly, the place where the accused and the complainant and the panch witness were sitting to have tea, was the place at the tea stall and there were a number of persons who were at the tea stall and there was a fruit cart just opposite the tea stall and it is not believable that the accused who was an Assistant Sub-Inspector would demand for the illegal gratification in the presence of so many persons when he had the full opportunity to take the amount of illegal gratification from the complainant in the office of the Government Pleader where there were no other persons besides the complainant and the accused. Moreover, in the evidence of the complainant, it is stated that the accused had told him that the photocopies of the affidavits were ready and he had to come to the District Court and take the copies but in the evidence it is mentioned that on 08.08.2005, the photocopies of the affidavits were not ready and the complainant was asked to get the photocopies of the affidavits. That if the accused in fact, telephoned the complainant and told him that the photocopies were ready and demanded the amount of illegal gratification and give him the same and take the photocopies, the accused would have kept the photocopies ready and would have immediately handed over the same to the complainant and accepted the amount of illegal gratification. Moreover, as per the complainant, the demand was made on 30.07.2005 in the Vadnagar Court and the accused had told the complainant to remain present before the Mehsana Court on 01.08.2005 and if the accused had actually made the demand and was to receive the amount on 01.08.2005, the accused would have been present in the Court at Mehsana on 01.08.2005 and would have taken the amount. 9.2 The complainant, in his complaint and in his deposition has submitted that there were a number of telephone calls between the complainant and the accused but the complainant has not mentioned his telephone number or the telephone number where he had contacted the accused. The complainant had not even mentioned the number of Vadnagar Police Station and the Investigating Officer has categorically stated that no call details were collected during investigation and the Register of the telephone vardhi of the Vadnagar Police Station has not been seized during the investigation. 9.3 The prosecution has produced the order of sanction for prosecution in the evidence of the Investigating Officer – PW4 – Chandubhai Rupaji Kotad at Exh. 48 and the Competent Authority who has granted the order of sanction for prosecution has not been examined before the learned Trial Court. The witness has stated that he had sent a draft order for sanction for prosecution to the competent authority. In Mohd. Iqbal Ahmed (supra) relied upon by the learned advocate for the appellant, the Hon'ble Supreme Court in para 3 has observed as under: “3. ….. It is incumbent on the prosecution to prove that a valid sanction has been granted by the Sanctioning Authority after it was satisfied that a case for sanction has been made out constituting the offence. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. This should be done in two ways; either (1) by producing the original sanction which itself contains the facts constituting the offence and the grounds of satisfaction and (2) by adducing evidence aliunde to show that the facts placed before the Sanctioning Authority and the satisfaction arrived at by it. It is well settled that any case instituted without a proper sanction must fail because this being a manifest difficulty in the prosecution, the entire proceedings are rendered void ab initio. In the instant case no evidence has been led either primary or secondary to prove as to what were the contents of the note mentioned in Exhibit P-16 which was placed before the Sanctioning Authority. The evidence of P.W. 2 or P.W. 7 is wholly irrelevant because they were not in a position to say as to what were the contents of the note which formed the subject matter of the sanction by the Standing Committee of the Corporation. The note referred to above was the only primary evidence for this purpose. Mr. Rao vehemently argued that although the Resolution, Exh. P-16 does not mention the facts, the Court should presume the facts on the basis of the evidence given by P.W. 2 and the order implementing sanction which mentions these facts. This argument is wholly untenable because what the Court has to see is whether or not the Sanctioning Authority at the time of giving sanction was aware of the facts constituting the offence and applied its mind for the same and any subsequent fact which may come into existence after the resolution granting sanction has been passed, is wholly irrelevant. The grant of sanction is not an idle formality or an acrimonious exercise but a solemn and sacrosanct act which affords protection to government servants against frivolous prosecutions and must therefore be strictly complied with before any prosecution can be launched against the public servant concerned.” 9.4 In view of the above, in the instant case, the prosecution has merely produced the order of sanction for prosecution at Exh. 48 and has not examined the Sanctioning Authority and no evidence to show that all the facts were produced before the Sanctioning Authority and there is no evidence about the report that was filed before the Sanctioning Authority is produced on record. 48 and has not examined the Sanctioning Authority and no evidence to show that all the facts were produced before the Sanctioning Authority and there is no evidence about the report that was filed before the Sanctioning Authority is produced on record. There is no evidence as to whether the Competent Authority who has granted the order of sanction for prosecution was aware of the facts constituting the offence and whether the Competent Authority has applied his mind before granting order of the sanction for prosecution. 10. In view of the above discussion and in view of the settled principles of law in the case of B. Jayaraj (supra), N Vijaykumar (supra), K. Shanthamma (supra) and Neeraj Dutta (supra) relied upon by the learned advocate for the accused, there is no evidence that there was ever any conversation on the telephone between the complainant and the accused and the Investigating Officer has clearly deposed that no evidence of any call detail record of the mobile phone of the complainant and the Vadnagar Police Station were seized during the investigation. Except, for the bald allegations made by the complainant that the accused had telephoned him on three to four occasions, the say is not corroborated by any evidence whatsoever. That even on the date of the trap, the conversation that had taken place between the complainant and the accused is about the “transaction” but there is no clear evidence that the accused had demanded for the amount of illegal gratification of Rs. 500/-. As discussed above, the accused was to receive the amount of illegal gratification for the photocopies of the affidavits that were filed in favour of the persons against whom the complainant had filed M Case No. 1/2005 and there is no iota of evidence that any point of time the photocopies of the affidavits were handed over to the complainant by the accused. That the entire case of the prosecution hinges on the affidavits and the photocopies that were to be given by the accused to the complainant but as per the evidence of the prosecution the accused had told the complainant to “complete the transaction” and the complainant handed over the tainted currency notes to the accused. That the entire case of the prosecution hinges on the affidavits and the photocopies that were to be given by the accused to the complainant but as per the evidence of the prosecution the accused had told the complainant to “complete the transaction” and the complainant handed over the tainted currency notes to the accused. That at that time, the complainant did not demand for the photocopies of the affidavits which he was supposed to receive in exchange for the amount of illegal gratification and there is no explanation whatsoever from the complainant as to why he had not asked for the photocopies of the affidavits before handing over the amount of illegal gratification to the accused. There is ample evidence that the accused had taken the bunch of papers from his bag and had given the bunch of papers to the panch witness to get the photocopies of the same and the panch witness went to Gurukrupa Zerox Centre and brought back the photocopies, the bunch of papers, the bill of Gurukrupa Zerox Centre and the remaining amount of Rs. 43/- and there is clear evidence that the panch witness handed over the photocopies and the bunch of papers to the accused and the bill and the remaining amount of Rs. 43/- to the complainant. This casts a serious doubt on the case of the prosecution and the story of the prosecution is not believable because as per the evidence on record, the accused who was the Investigating Officer of M Case No. 1/2005, had already filed the summary before the learned Trial Court on 30.07.2005. The defence of the accused that the complainant had a grudge against him as he did not arrest the persons against whom the complainant had filed the case as there was no evidence against them and also the fact that the summary was filed before the learned Vadnagar Court on 30.07.2005 coupled with the evidence on record that the complainant has filed 44 cases against persons from his village and has been externed from the village, the probability that the complainant has filed a false case against the accused as he had a grudge against him, cannot be ruled out. As discussed above, there is no evidence about the prior demand or evidence as to whether there was any conversation on the telephone between the complainant and the accused, except for the bald allegations of the complainant and as settled by the Hon'ble Supreme Court that proof of demand of illegal gratification by a public servant is a sine qua non in order to establish the guilt of the accused under Section 7, 13(1)(d) of the PC Act when the demand of illegal gratification is not proved beyond reasonable doubts, the accused cannot be convicted. 11. The learned Trial Court has not appreciated the evidence on record in proper perspective and has not appreciated the evidence in light of the fact that the complainant was to give the amount of illegal gratification to the accused in return of the photocopies of the affidavits but no photocopies of the affidavits were handed over to the complainant and without the same being handed over to the complainant, the complainant had given amount of illegal gratification of Rs. 500/- to the accused which is not believable. That the learned Trial Court has convicted the appellant in the absence of any cogent and convincing evidence of demand. On minutely scrutinizing the entire evidence on record, it can be safely said that there is no admissible evidence against the accused and the prosecution has failed to prove the case against the accused beyond reasonable doubts and the evidence of the prosecution on record is far from convincing and the conviction of the accused under Sections 7 and 13(1)(d) of the PC Act could not have been invoked. Consequently, the appeal succeeds and is allowed. The impugned judgement and order passed by the learned Special Judge (ACB), Mehsana in Special ACB Case No. 1 of 2006 on 30.10.2007 convicting the appellant under Sections 7 and 13(1)(d) of the PC Act is hereby quashed and set aside and the accused is acquitted from all the offences. 12. Bail bond stands cancelled. Fine to be refunded to the appellant after due verification. Record and proceedings be sent back to the concerned Trial Court forthwith.