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2024 DIGILAW 844 (GUJ)

Khandubhai Chhanabhai Patel v. State of Gujarat

2024-04-12

S.V.PINTO

body2024
JUDGMENT : S.V. PINTO, J. 1. Both these criminal appeals are arise out of the same impugned judgment and order passed by the learned Special Judge, 2nd Fast Track Court, Valsad in Special Corruption Case No. (New) 52 of 2002 [Special Corruption Case No. (Old) 5 of 2001] on 29.03.2006 and hence, both these appeals are decided by this common judgment. 2. Criminal Appeal No. 890 of 2006 has been filed by the appellant-original accused under Section 374(2) of the Code of Criminal Procedure, 1973 (hereinafter referred to as ‘the Code’) against the judgment and order of conviction in Special Corruption Case No. (New) 52 of 2002 [Special Corruption Case No. (Old) 5 of 2001] passed by the learned Special Judge, 2nd Fast Track Court, Valsad (hereinafter referred to as ‘the learned Trial Court’) on 29.03.2006, whereby, the learned Trial Court has convicted the appellant-accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as ‘the P.C. Act’). 2.1. Criminal Appeal No. 1591 of 2006 has been filed by the State under Section 377 of the Code against the impugned judgment and order of conviction in Special Corruption Case No. (New) 52 of 2002 [Special Corruption Case No. (Old) 5 of 2001] passed by the learned Special Judge, 2nd Fast Track Court, Valsad for enhancement of the sentence of the respondent-original accused. 2.2. The appellant of Criminal Appeal No. 890 of 2006 and the respondent of Criminal Appeal No. 1591 of 2006 is hereinafter referred to as ‘the accused’ as he stood in the original case, for the sake of convenience, clarity and brevity. 3. The relevant facts leading to filing of both the appeals are as under: 3.1. That the accused Khandubhai Chhanabhai Patel was working as a Talati-cum-Mantri in the Valsad Kasba Talati Office, Taluka and District Valsad and was a public servant. That Ahmedji Mahammadhusen Sema, the father of the complainant Bashir Ahmedji Sema, had filed an appeal before the Deputy Collector, Valsad for cancellation of the mutation entry, whereby, the name of Shamshuddin Mahammadhusen Sanagara, the son-in-law of Ahmedji Mahammadhusen Sema was mutated in the revenue record and the appeal was allowed and the order to cancel the entry was passed. That Ahmedji Mahammadhusen Sema, the father of the complainant Bashir Ahmedji Sema, had filed an appeal before the Deputy Collector, Valsad for cancellation of the mutation entry, whereby, the name of Shamshuddin Mahammadhusen Sanagara, the son-in-law of Ahmedji Mahammadhusen Sema was mutated in the revenue record and the appeal was allowed and the order to cancel the entry was passed. That the complainant had asked the accused for making the necessary entry on 22.11.2000 and at that time, the accused demanded an amount of Rs. 500/- as illegal gratification for making the entry and had told to pay the amount in the afternoon on 27.11.2000 in his office. That as the complainant Bashir Ahmadji Sema did not want to give the amount of illegal gratification, he went to the ACB Office at Valsad and filed a complaint under Sections 7, 13(2)(d) and 13(2) of the P.C. Act, which was registered as C.R. No. 5 of 2001 on 27.11.2000. That the panch witnesses were called and the characteristic of anthracene powder and ultraviolet lamp were explained to the panch witnesses and the complainant and the demonstration was carried out and the trap was arranged. That the complainant and the shadow witnesses went to the office of the accused and at that time, the accused demanded the amount of Rs. 500/- as illegal gratification and accepted the same and after receiving the predetermined signal, the members of the raiding party rushed in and the accused was caught red handed. The Investigating Officer recorded the statement of the connected witnesses and drew the panchnama and after the order of sanction for prosecution was received, the charge sheet was filed before the learned Sessions Court, Valsad, which was registered as Special Corruption Case No. (Old) 5 of 2001 [Special Corruption Case No. (New) 52 of 2002]. 3.2. The accused was duly served with the summons and the accused appeared before the learned Trial Court and after due procedure under Section 207 of the Code of Criminal Procedure, was followed a charge was framed against the accused at Exh.10 and the statement of the accused was recorded at Exh.11, wherein, the accused denied the allegation made in the charge and the oral as well as the documentary evidence of the prosecution were taken on record. That the learned APP filed the closing pursis at Exh.34, further statement of the accused under Section 313 of the Code was recorded, wherein, the accused denied all the evidence produced by the prosecution. After hearing the arguments of both the sides, the learned Trial Court found the accused guilty and convicted the accused by the impugned judgment and order dated 29.03.2006 and sentenced the accused to 6 months imprisonment for the offence punishable under Section 7 of the P.C. Act and 6 months imprisonment and fine of Rs. 1000/- and in default, imprisonment of two months for the offence punishable under Section 13(1)(d) read with 13(2) of the P.C. Act. The learned Trial Court further ordered that both the sentences were to run concurrently. 4. Being aggrieved and dissatisfied with the impugned judgment and the order dated 29.03.2006 passed by the learned Trial Court in Special Corruption Case No. (New) 52 of 2002 [Special Corruption Case No. (Old) 5 of 2001], the appellant-accused filed Criminal Appeal No. 890 of 2006 mainly stating that the judgment and order is bad in law and the prosecution has failed to prove the charge against the accused. That the complainant himself has stated in his examination-in-chief that his father had gone to meet the accused on a number of occasions and as the entry was not made, he filed the complaint against the accused. That he went on his own to the accused and he put the money in the drawer of the table of the accused and the complainant has not supported the case of the prosecution. That even the panch witness does not prove that the demand was made by the accused and if the evidence of the Investigating Officer is perused, it has come on record that there were two ladies working in the office of the accused, who were independent witnesses but the Investigating Officer has not recorded the statements of these two ladies. That even though, a cognizable offence was declared in his presence he had not registered the offence and the order of sanction for prosecution has been granted by the Deputy District Development Officer and not by the District Development Officer, who was the competent authority to accord the sanction for prosecution. When the sanction was accorded mechanically, the accused cannot be convicted for the said offences. When the sanction was accorded mechanically, the accused cannot be convicted for the said offences. That the complainant has not supported the case of the prosecution and the demand is not proved from the independent panch witnesses and hence, the impugned judgment and the order of conviction passed by the learned Trial Court is illegal, perverse and has been passed without considering the evidence on record and hence, the appeal must be allowed and the accused must be acquitted for the said offences. 5. Criminal Appeal No. 1591 of 2006 has been filed by the State for enhancement of the sentence of the accused mainly stating that the learned Trial Court has rightly convicted the accused but maximum sentence as provided under Sections 7, 13(1)(d) and 13(2) of the P.C. Act ought to have been inflicted upon the accused and there were no mitigating circumstances to persuade the learned Trial Court to impose the sentence, which is less than the maximum sentence. That the offence under the provisions of P.C. Act are on the increase now a days and a deterrent sentence in such cases has to be imposed so as to be a lesson for like minded persons. That the impugned judgment and the order is unduly lenient and grossly inadequate and the same deserves to be enhanced and hence, the sentence must be enhanced and the accused must be inflicted maximum punishment as provided by the Act. 6. Heard learned advocate Mr. Jayesh Dave for the accused and Additional Public Prosecutor Ms. Jirga Jhaveri for the State. 7. Learned advocate Mr. Jayesh A. Dave for the accused has submitted that in the entire evidence of the prosecution, the demand is not proved and as per the case of the prosecution, prior demand was made on 22.11.2000 and the trap was arranged on 27.11.2000. That the complainant has turned hostile and no demand is proved from the evidence of the complainant. That even the panch witness, who has been examined at Exh.27, has not stated anything about the prior demand and it has come on record that the lamp that was used was like a battery and no ultraviolet lamp was used by the ACB Officer. That even the panch witness, who has been examined at Exh.27, has not stated anything about the prior demand and it has come on record that the lamp that was used was like a battery and no ultraviolet lamp was used by the ACB Officer. Moreover, in the entire evidence, it has also come on record that two ladies were present in the room of the accused, where the accused were sitting but both the ladies have not been examined as independent witnesses by the prosecution before the learned Trial Court. That the evidence suggests that the accused had made a gesture demanding the amount of illegal gratification and the complainant had given the currency notes to the accused, who put the currency notes on his table. There is no evidence to that effect that any gesture was made by the accused. That the experiment of ultraviolet lamp was made in a dark light. The panch witness had admitted that he had to depose as per the panchnama. That even in the deposition of the Trap Laying Officer at Exh.30, the persons, who were present in the office of the accused, have not been examined as independent witnesses. It has also come on record that the panchnama was not dictated by the panch witness and the same cannot read as evidence. That the room for experiment of anthracene powder and ultraviolet lamp was not darkened and it cannot be believed that the traces of anthracene powder was found on the hands of the accused. Moreover, the Investigating Officer P.I. Mr. Vala was also a member of the raiding party and was with the Trap Laying Officer since inception of the trap and he was well aware about the evidence and hence, it cannot be said that an independent investigation has taken place. There is also evidence that the order of sanction for prosecution was given by the Deputy District Development Officer, who is not a competent authority to remove the accused from his job and the order of sanction for prosecution has been accorded wrongly and mechanically by the Deputy District Development Officer. That, in fact, the District Development Officer would be the competent authority to accord the order of sanction for prosecution and hence, when the order of sanction for prosecution has not been given by the competent authority, the conviction cannot be sustained. That, in fact, the District Development Officer would be the competent authority to accord the order of sanction for prosecution and hence, when the order of sanction for prosecution has not been given by the competent authority, the conviction cannot be sustained. That the accused cannot be convicted when the complainant has turned hostile. That the accused has wrongly been convicted by the learned Trial Court and the evidence has been misread by the learned Trial Court and hence, Criminal Appeal No. 890 of 2006 filed by the accused must be allowed and Criminal Appeal No. 1591 of 2006 filed by the State for enhancement of conviction of the accused must be rejected. 8. Learned advocate Mr. Jayesh Dave for the appellant-accused has relied upon the following citations: (i) Krishan Chander vs. State of Delhi, AIR 2016 SC 298 (ii) K. Devassia vs. State of Kerala, (2006) 10 SCC 447 (iii) State Inspector of Police, Vishakhapatnam vs. Surya Sankaram Karri, (2006) 7 SCC 172 (iv) B. Jayraj vs. State of Andhra Pradesh, (2014) 13 SCC 55 (v) N. Vijaykumar vs. State of Tamil Nadu, AIR 2021 SC 766 8.1 The Apex Court, in the case of Krishan Chander (Supra), relied upon by the learned advocate for the appellant has observed in Para Nos. 34 and 35, as under: “34. It is well settled position of law that the demand for the bribe money is sine qua non to convict the accused for the offences punishable under Sections 7 and 13(1)(d) read with Section 13(2) of the PC Act. The same legal principle has been held by this Court in the case of B. Jayaraj (supra), A. Subair (supra) and P. Satyanarayana Murthy (supra) upon which reliance is rightly placed by the learned senior counsel on behalf of the appellant. The relevant paragraph 7 from B. Jayaraj case (supra) reads thus: “7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. The above position has been succinctly laid down in several judgments of this Court. By way of illustration reference may be made to the decision in C.M. Sharma vs. State of A.P. AIR 2011 SC 608 and C.M. Girish Babu vs. CBI, AIR 2009 SC 2022 .” (Emphasis supplied) In the case of P. Satyanarayana Murthy, AIR 2015 SC 3549 , Paras 19, 20, 21 and 22 (supra), it was held by this Court as under: “21. In State of Kerala and Another vs. C.P. Rao, AIR 2012 SC (Supp.) 393, this Court, reiterating its earlier dictum, vis-a-vis the same offences, held that mere recovery by itself, would not prove the charge against the accused and in absence of any evidence to prove payment of bribe or to show that the accused had voluntarily accepted the money knowing it to be bribe, conviction cannot be sustained. 22. In a recent enunciation by this Court to discern the imperative pre-requisites of Sections 7 and 13 of the Act, it has been underlined in B. Jayaraj in unequivocal terms, that mere possession and recovery of currency notes from an accused without proof of demand would not establish an offence under Sections 7 as well as 13(1)(d)(i)&(ii) of the Act. It has been propounded that in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be proved. The proof of demand, thus, has been held to be an indispensable essentiality and of permeating mandate for an offence under Sections 7 and 13 of the Act. Qua Section 20 of the Act, which permits a presumption as envisaged therein, it has been held that while it is extendable only to an offence under Section 7 and not to those under Section 13(1)(d) (i)&(ii) of the Act, it is contingent as well on the proof of acceptance of illegal gratification for doing or forbearing to do any official act. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 23. Such proof of acceptance of illegal gratification, it was emphasized, could follow only if there was proof of demand. Axiomatically, it was held that in absence of proof of demand, such legal presumption under Section 20 of the Act would also not arise. 23. The proof of demand of illegal gratification, thus, is the gravamen of the offence under Sections 7 and 13(1) (d) (i)&(ii) of the Act and in absence thereof, unmistakably the charge therefore, would fail. Mere acceptance of any amount allegedly by way of illegal gratification or recovery thereof, dehors the proof of demand, ipso facto, would thus not be sufficient to bring home the charge under these two sections of the Act. 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 or 13 of the Act would not entail his conviction thereunder.” (Emphasis supplied) 35. Further, in the case of Satvir Singh vs. State of Delhi, this Court has held thus: “34. This Court, in K.S. Panduranga Case, AIR 2013 SC 2164 [Page 2175-2176 Para 41] has held that the demand and acceptance of the amount of illegal gratification by the accused is a condition precedent to constitute an offence, the relevant paragraph in this regard from the abovesaid decision is extracted hereunder: [SCC pp. 740-741, Para 39] “39. Keeping in view that the demand and acceptance of the amount as illegal gratification is a condition precedent for constituting an offence under the Act, it is to be noted that there is a statutory presumption under Section 20 of the Act which can be dislodged by the accused by bringing on - record some evidence, either direct or circumstantial, that money was accepted other - than for the motive or the reward as stipulated under Section 7 of the Act. When some explanation is offered, the court is obliged to consider the explanation under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. When some explanation is offered, the court is obliged to consider the explanation under Section 20 of the Act and the consideration of the explanation has to be on the touchstone of preponderance of probability. It is not to be proven beyond all reasonable doubt. In the case at hand, we are disposed to think that the explanation offered by the accused does not deserve any acceptance and, accordingly, we find that the finding recorded on that score by the learned trial Judge and the stamp of approval given to the same by the High Court cannot be faulted.” (Emphasis supplied) 8.2 The Apex Court, in the case of State Inspector of Police, Vishakhapatnam (Supra), relied upon by the learned advocate for the appellant has observed in Para Nos-25 and 26, as under: “25. In State of Karnataka vs. C. Nagarajaswamy, it was held: SCC P.375 Para-15) “15. Grant of proper sanction by a competent authority is a sine qua non for taking cognizance of the offence. It is desirable that the question as regards sanction may be determined at an early stage.” 26. When a sanction is granted by a person not authorized in law, the same being without jurisdiction, would be a nullity.” 8.3 The Apex Court, in the case of K. Devassia (Supra), relied upon by the learned advocate for the appellant has observed in Para Nos. 2 and 3, as under: “2. In the present case, the sole appellant has challenged his conviction and pointed out that the Secretary (Vigilance), who accorded sanction, was not authorized to grant sanction. In this connection, reliance has been placed upon the judgment of this Court in P.A. Mohandas vs. State of Kerala, (2003) 9 SCC 504 , in which, it has been laid down that for the first time Secretary (Vigilance) was authorized to accord sanction on 23.04.1994 and prior to that he was not competent to accord sanction. In the present case, the sanction is said to have been granted by the Secretary (Vigilance) prior to 23.04.1994, therefore, the impugned orders are fit to be set aside on this ground alone. 3. Accordingly, the appeal is allowed, the impugned orders are set aside and the appellant is acquitted of the charges. In the present case, the sanction is said to have been granted by the Secretary (Vigilance) prior to 23.04.1994, therefore, the impugned orders are fit to be set aside on this ground alone. 3. Accordingly, the appeal is allowed, the impugned orders are set aside and the appellant is acquitted of the charges. The appellant, who is on bail, is discharged from the liability of bail bonds.” 8.4 The Apex Court, in the case of B. Jayraj (Supra), relied upon by the learned advocate for the appellant has observed in Para Nos. 8 and 9, as under: “8. In the present case, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial complaint (Ext. P-11) before LW-9, and there is no other evidence to prove that the accused had made any demand, the evidence of PW-1 and the contents of Ext. P-11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive 9 insofar as the offence under Sections 13(1) (d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal means or abuse of position as a public servant to obtain any valuable thing or pecuniary advantage cannot be held to be established. 9. 9. Insofar as the presumption permissible to be drawn under Section 2 of the Act is concerned, such presumption can only be in respect of the offence under Section 7 and not the offences under Sections 13(1)(d)(i) or (ii) of the Act. In any event, it is only on proof of acceptance of illegal gratification that presumption can be drawn under Section 20 of the Act that such gratification was received for doing or forbearing to do any official act Proof of acceptance of illegal gratification can follow only if there is proof, demand. As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can be drawn a wholly absent.” 8.5 The Apex Court, in the case of N. Vijaykumar (Supra), relied upon by the learned advocate for the appellant has observed in Para-12, as under: “12. It is equally well settled that mere recovery by itself cannot prove the charge of the prosecution against the accused. Reference can be made to the judgments of this Court in the case of C.M. Girish Babu vs. CBI, Cochin, High Court of Kerala, (2009) 3 SCC 779 : AIR 2009 SC 2022 and in the case of B. Jayaraj vs. State of Andhra Pradesh, (2014) 13 SCC 55 : 2014 AIR SCW 2080. In the aforesaid judgments of this Court while considering the case under Sections 7, 13(1)(d)(i) and (ii) of the Prevention of Corruption Act, 1988 it is reiterated that to prove the charge, it has to be proved beyond reasonable doubt that accused voluntarily accepted money knowing it to be bribe. Absence of proof of demand for illegal gratification and mere possession or recovery of currency notes is not sufficient to constitute such offence. In the said judgments it is also held that even the presumption under Section 20 of the Act can be drawn only after demand for and acceptance of illegal gratification is proved. It is also fairly well-settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under: “7. It is also fairly well-settled that initial presumption of innocence in the criminal jurisprudence gets doubled by acquittal recorded by the trial court. The relevant paragraphs 7, 8 and 9 of the judgment in the case of B. Jayaraj (supra) read as under: “7. Insofar as the offence under Section 7 is concerned, it is a settled position in law that demand of illegal gratification is sine qua non to constitute the said offence and mere recovery of currency notes cannot constitute the offence under Section 7 unless it is proved beyond all reasonable doubt that the accused voluntarily accepted the money knowing it to be a bribe. The above position has been succinctly laid down in several judgments of this Court. By way of illustration-reference may be made to the decision in C.M. Sharma vs. State of A.P. (2010) 15 SCC 1 : (2013) 2 SCC (Cri) 89 : AIR 2011 SC 608 and C.M. Girish Babu vs. CBI, (2009) 3 SCC 779 : (2009) 2 SCC (Cri) 1 : AIR 2009 SC 2022 : 2009 AIR SCW 1693. 8. In the present base, the complainant did not support the prosecution case insofar as demand by the accused is concerned. The prosecution has not examined any other witness, present at the time when the money was allegedly handed over to the accused by the complainant, to prove that the same was pursuant to any demand made by the accused. When the complainant himself had disowned what he had stated in the initial - complaint (Ext. P11) before LW-9, and there - is no other evidence to prove that the accused had made any demand, the evidence - of PW-1 and the contents of Ext. P11 cannot be relied upon to come to the conclusion that the above material furnishes proof of the demand allegedly made by the accused. We are, therefore, inclined to hold that the learned trial court as well as the High Court was not correct in holding the demand alleged to be made by the accused as proved. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The only other material available is the recovery of the tainted currency notes from the possession of the accused. In fact such possession is admitted by the accused himself. Mere possession and recovery of the currency notes from the accused without proof of demand will not bring home the offence under Section 7. The above also will be conclusive insofar as the offence under Sections 13(1)(d)(i) and (ii) is concerned as in the absence of any proof of demand for illegal gratification, the use of corrupt or illegal mean or abuse of position as a public servant obtain any valuable thing or pecuniary ac vantage cannot be held to be established. 9. Insofar as the presumption permissible to be drawn under Section 20 of the Act concerned, such presumption can only be i respect of the offence under Section 7 an not the offences under Sections 13(1)(d) and (ii) of the Act. In any event, it is only o proof of acceptance of illegal gratification that presumption can be drawn under Section 2 of the Act that such gratification was receive for doing or forbearing to do any official ac Proof of acceptance of illegal gratification can follow only if there is proof of demand As the same is lacking in the present case the primary facts on the basis of which the legal presumption under Section 20 can b drawn are wholly absent.” 9. Learned APP Ms. Jirga Jhaveri for the State has submitted that the impugned judgment and the order of conviction passed by the learned Trial Court has been passed after considering all the evidence on record and in cannot be said that there is any patent infirmity in the judgment and the order of conviction. That, in fact, that evidence has rightly been appreciated by the learned Trial Court and the judgment and order of conviction has been passed without there being any mitigating circumstances and only imprisonment of 6 months has been passed by the learned Trial Court, which is highly improper. That, in fact, that evidence has rightly been appreciated by the learned Trial Court and the judgment and order of conviction has been passed without there being any mitigating circumstances and only imprisonment of 6 months has been passed by the learned Trial Court, which is highly improper. That when the accused, who is a public servant, has been caught red handed after demanding and accepting the amount of illegal gratification and the learned Trial Court has concluded that the case has been proved by the prosecution beyond reasonable doubts maximum sentence for the offence must be inflicted on the accused under the P.C. Act and Criminal Appeal No. 890 of 2006 must be rejected and Criminal Appeal No. 1591 of 2006 filed by the State for enhancement of sentence must be allowed. 10. As per the settled principles of law in conviction appeals, when the appellate Court finds that the finding of fact was based on a wholesome erroneous approach and the very basis of reasoning was not in the right perspective and the intrinsic merit of the evidence of the witness was not considered and the trial was perversely disposed of permitting manifest errors and glaring infirmities the Appellate Court can interfere and to exercise the powers in a conviction appeal a finding on merits after considering and meticulously dissecting the evidence on record is imperative. As far as the conviction under the P.C. Act is concerned, it is settled by the Apex Court that the prosecution has to prove the case beyond reasonable doubts and proof of demand is a sine qua non for an offence under the P.C. Act. That only if the demand is proved with cogent and convincing evidence, the prosecution would be benefited by the presumption under Section 20 of the P.C. Act and the conviction would be sustained. It is also imperative that the entire evidence is re-appreciated and in the instant case, the prosecution has examined PW-1 Bashir Ahmadbhai Sema at Exh.22. The witness is the complainant who has stated that Shamshuddin Mahammadhusen Sangara had got his name mutated in the agricultural land of his father and they had filed a case before the Deputy Collector, who had passed the order in favour of his father. The witness is the complainant who has stated that Shamshuddin Mahammadhusen Sangara had got his name mutated in the agricultural land of his father and they had filed a case before the Deputy Collector, who had passed the order in favour of his father. That he had given a copy of the order to the accused and had given the necessary papers to get the name of Shamshuddin Mahammadhusen Sangara removed as per the order and his father had done the entire procedure. That his father had met the accused 8-10 times but the accused did not make the necessary entry. That he was angry with the accused as his father was 70 years old and a heart patient and his father had to unnecessarily go to the office of the accused and he had filed a complaint against the accused in the office of the ACB. That his father has told him that the accused had spoken about the expenses for tea-water and no such demand was made. That he had gone to the office on 22.11.2000 and 27.11.2000 was decided to arrange the trap. That he himself had gone to the office of the accused and spoken to the accused and had placed the amount of Rs. 500/- in the drawer of the table of the accused. The witness has not supported the case of the prosecution and has been declared hostile and during the lengthy cross-examination by the learned APP, no evidence to support the case of the prosecution has come on record. During the cross-examination by the learned advocate for the accused, the witness has stated that the room where the accused was sitting was about 10 x 10 ft. and there were two ladies in that room. That the panch witness was sitting at a distance of 25 ft. to 30 ft. from the room of the accused and he had placed the tainted currency notes in the drawer of the table of the accused and came outside and gave the pre-determinated signal. That after receiving the pre-determinated signal, the members of the raiding party along with the panch witness rushed into the room and thereafter, Mr. Raval told the accused to count the amount and had introduced himself. 11. The prosecution has examined PW-2 Vipukumar Shantilal Panchal at Exh.27. That after receiving the pre-determinated signal, the members of the raiding party along with the panch witness rushed into the room and thereafter, Mr. Raval told the accused to count the amount and had introduced himself. 11. The prosecution has examined PW-2 Vipukumar Shantilal Panchal at Exh.27. This witness is the shadow witness, who had gone along with the complainant at the time of the trap. The witness has narrated all the events that had unfolded in his presence. The witness has stated that he had been called to be a panch witness in the office of ACB and has, thereafter, stated that he had gone to the office of the accused. That the complainant had told the accused that he had brought the amount as discussed earlier. That at that time, the accused had made a gesture and demanded the amount, which was taken by the complainant from his pocket and given to the accused. The accused took the amount and placed it in the drawer of the table of the accused and the complainant came out and gave the pre-determinated signal and immediately, the members of the raiding party rushed into the office and caught the accused red handed and the other procedure was done. During the cross-examination by the learned advocate for the accused, the witness has stated that he does not know the expiry date of anthracene powder and he had not seen the label of the bottle of anthracene powder but, at that time, the officer had told him that it was anthracene powder and it was believed by him. That the lamp was light like a normal battery and when had entered into the room of the accused, there were two ladies in the room and both the ladies were sitting at the distance of 4 ft from the table of the accused. That any conversation that was made at the table of the accused could be heard by both the ladies and in the panchnama, it is not mentioned as to how or by which hand, the accused had made a gesture. That after the pre-determinated signal was given by the complainant, the accused did not make any efforts to hide the tainted currency notes and he does not know as to whether there were any papers in the drawer of the table of the accused. That after the pre-determinated signal was given by the complainant, the accused did not make any efforts to hide the tainted currency notes and he does not know as to whether there were any papers in the drawer of the table of the accused. The panchnama does not mention that the lights in the room were switched off before carrying out the experiment. That he had to depose as per the panchnama and his service was important to him. 12. The prosecution has examined PW-3 Mahavirsingh Pravingsingh Raol at Exh.30. This witness is the Trap Laying Officer, who has recorded the statement of the complainant and has arranged for the trap. The witness has fully supported the case of the prosecution and has deposed entirely about all the events that had unfolded right from the time of filing of the complaint till the trap was successful. During the cross-examination by the learned advocate for the accused, the witness has stated that he has not investigated as to who had to mutate the entry in the revenue record and in the second part of the panchnama, it is not mentioned that the room was darkned before the experiment was done. That phenolphthalein powder was not used and, in the complaint, there is no endorsement that the signature was affixed after the complaint was read over. That from the time of filing of the complaint till the trap was successful, he did not investigate as to whether the complaint was been filed by the complainant as he had a grudge on the accused. That at the time of the trap, Mr. Vala was with him and the complaint was not registered in the register on the date when the complainant had recorded the complaint. That no other documentary evidence were taken from the drawer of the table of the accused where the tainted currency notes were found and when they went into the room, the drawer of the table of the accused was half open. 13. The prosecution has examined PW-4 Ranjitbhai Devsabhai Vala at Exh.31. This witness is the Investigating Officer who has investigated the offence and has filed the charge sheet before the concerned Court. 13. The prosecution has examined PW-4 Ranjitbhai Devsabhai Vala at Exh.31. This witness is the Investigating Officer who has investigated the offence and has filed the charge sheet before the concerned Court. During the cross-examination, the witness has stated that he was a member of the raiding party and he has not investigated as to who has to certify the entry made by the Talati-cum-Mantri in the revenue record. That the order of sanction for prosecution has not been given by the District Development Officer. 14. On minutely appreciating the evidence of the prosecution, it has come on record that the complainant has not supported the case of the prosecution and there is no iota of evidence regarding any prior demand or demand made by the accused on the date of the trap. As per the say of the complainant, prior demand was made by the accused to the father of the complainant when he had gone to the accused to get the entry mutated in the revenue record of his land. In the complaint, the complainant has merely stated that the accused had demanded expenses for tea-water and there is no corroboration regarding this statement made by the accused. Admittedly, the prior demand was made to the father of the complainant but the father of the complainant has not been examined before the learned Trial Court. As far as the evidence regarding the demand on the date of the trap is concerned, the complainant has stated that he himself had voluntarily placed the tainted currency notes in the drawer of the table of the accused and in the evidence of the Trap Laying Officer, it has come on record that when the Trap Laying Officer went into the office of the accused, the drawer of the table of the accused was half open and hence, the possibility that the complainant himself had placed the tainted currency notes in the drawer of the table cannot be discarded especially when the complainant has himself stated so. That when the complainant has turned hostile and there is no evidence regarding any prior demand or demand on the date of the trap in the evidence of the complainant, it cannot be said that the prosecution has proved the case beyond reasonable doubts. That when the complainant has turned hostile and there is no evidence regarding any prior demand or demand on the date of the trap in the evidence of the complainant, it cannot be said that the prosecution has proved the case beyond reasonable doubts. The panch witness has clearly stated that he has to depose as per the panchnama and his job is important for him. The panch witness has stated that the accused had made a gesture and demanded the amount of illegal gratification but, there is no clarity in the evidence of the panch witnesses or the panchnama as to what gesture was made by the accused. There is no evidence as to which hand was used for the gesture by the accused or whether it was made by the accused in any manner and in the absence of specific evidence to that effect, it cannot be said that the accused had made any demand of illegal gratification. Moreover, there is ample evidence on record to show that the experiment as stated by the panch witness and the Trap Laying Officer was not conducted after darkening the room and in the absence of the room being darkened, the traces of anthracene powder could not be seen in bright day light on the currency notes or on the hands of the accused. It has also come on record that there were two independent witnesses, who were working at their tables in the office of the accused and they were sitting at the distance of about 4 ft away from the table of the accused and any conversation that had taken place at the table of the accused would have been heard by the two ladies but those two ladies have not been examined before the learned Trial Court. Moreover, there is also evidence on record that PW-4 Mr. Ranjitsinh Devsabhai Vala, the Investigating Officer, was the member of the raiding party and he was an active participant of the entire procedure right from filing of the complaint till the trap was successful and hence, a shadow of doubt is caste on the credibility of the case of the prosecution. The prosecution has not examined the Deputy District Development Officer, who has granted the sanction for prosecution and it cannot be said that valid sanction has been accorded by the competent authority. 15. The prosecution has not examined the Deputy District Development Officer, who has granted the sanction for prosecution and it cannot be said that valid sanction has been accorded by the competent authority. 15. The learned Trial Court has mainly relied upon the recovery of the tainted currency notes from the drawer of the table of the accused but, in the absence of the evidence regarding prior demand or the demand, which is sine qua non for the offence under the P.C. Act, it cannot be said that the evidence is sufficient to convict the accused. As discussed about the infirmity in the case of the prosecution, has come on record after meticulous dissection and as the prosecution has not proved the demand, which is sine qua non to constitute the offence under Section 7 of the P.C. Act, there is no evidence that the accused had, in fact, accepted the tainted currency notes knowing to be the bribe but, there is evidence that the tainted currency notes were placed in the drawer of the accused without his knowledge and there is manifest error and glaring infirmity in the evidence of the prosecution. There is no reliable evidence to support the conviction of the accused and the prosecution has miserably failed to establish the offence against the accused and the learned Trial Court has not appreciated the evidence in proper perspective and has misread the evidence of the panch witness as also the Trap Laying Officer and has convicted the accused on the basis of the contradictory evidence which is far from convincing and there is no reliable evidence to support the conviction of the accused and hence, Criminal Appeal No. 890 of 2006 filed by the appellant-accused is allowed. 16. The impugned judgment and order passed by the learned Special Judge, 2nd Fast Track Court, Valsad in Special Corruption Case No. (New) 52 of 2002 [Special Corruption Case No. (Old) 5 of 2001] on 29.03.2006 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. 17. Consequently, Criminal Appeal No. 1591 of 2006 filed by the State for enhancement of the conviction and sentence imposed upon the accused is hereby dismissed. 18. Bail bonds stand cancelled. Fine to be refunded to the accused after due verification. 17. Consequently, Criminal Appeal No. 1591 of 2006 filed by the State for enhancement of the conviction and sentence imposed upon the accused is hereby dismissed. 18. Record and proceedings be sent back to the concerned Trial Court forthwith.