K.J. Thaker, J.:— The present appeals have been filed by the appellants-original accused persons under Section 374 of the Criminal Procedure Code, 1973 against the common judgment and order of conviction dated 01.04.2000 passed by learned Special Judge, Mehsana in Special (ACB) Case No. 10 of 1992, whereby the learned Trial Court convicted and sentenced the accused persons as under:

(A) In Criminal Appeal No. 477/2000;

(1) For the appellant herein-original accused no. 2, to undergo rigorous imprisonment for one year with fine of Rs. 1000/- and in default to undergo further rigorous imprisonment for one month for the offence under Section 7 of the Prevention of Corruption Act, 1988 (for short “the Act”);

(2) For the appellant herein-original accused no. 2, to undergo rigorous imprisonment for six months with fine of Rs. 500/- and in default to undergo further rigorous imprisonment for 15 days for the offence under Section 8 of the Act;

(3) For the appellant herein-original accused no. 2, to undergo rigorous imprisonment for two years with fine of Rs. 2000/- and in default to undergo further rigorous imprisonment for two months for the offence under Section 13(1)(D) of the Act. The sentences were ordered to run concurrently.

(B) In Criminal Appeal No. 478/2000;

(1) For the appellant herein-original accused no. 1, to undergo rigorous imprisonment for one year with fine of Rs. 1000/- and in default to undergo further rigorous imprisonment for one month for the offence under Section 7 of the Act;

(2) For the appellant herein-original accused no. 2, to undergo rigorous imprisonment for two years with fine of Rs. 2000/- and in default to undergo further rigorous imprisonment for two months for the offence under Section 13(1)(D) of the Act; The sentences were ordered to run concurrently.

2. The common brief facts of the prosecution case are that the complainant is a businessman serving on business of sugar as a wholesale retailer in the name and style of M/s. Bhagwandas Magandas Patel & Company at Station Road, Kalol. On 03.04.1991, the complainant lodged a complaint with the P.I, ACB, Ahmedabad to the effect that the complainant is an owner of a firm running in the name of Sheetal Suppliers carrying on business of trading of acrylic monomal. The complainant was desirous of starting a new firm by name Purvi Monomal Pvt. Ltd., for manufacturing of acrylic monomal and for this purpose, the complainant decided to buy a plot at Village Chhatral bearing Survey No. 613/1 admeasuring 2508.49 sq. mtrs. from one Sandeep Agrawal and Manoj Agrawal. The agreement to sell was executed in December, 1990. The plot, which was bought by he complainant, was N.A. Plot, but the original owners of the plot i.e. Agrawal Brothers had got the plot converted into non-agricultural plot for different purpose, and therefore, the complainant had to place a revised plan for necessary N.A. permission. Thereafter, in March, 1991, the necessary sale deed was executed in favour of the complainant. It is the case of the complainant that in connection with N.A. work, he used to visit the office of Taluka Development Officer, Kalol quite frequent and the complainant used to meet one Shri J.D. Patel (original accused no. 1) who was serving as a Junior Clerk in N.A. Department. The complainant used to, time and again, request original accused no. 1-J.D. Patel to expedite the matter so that the complainant can obtain the necessary N.A. Permission and start the business. It is the case of the complainant that original accused no. 1-Shir. J.D. Patel used to, time and again, assure the complainant that he would see to it that the necessary permission is approved. At one point of time, original accused no. 1-J.D. Patel informed the complainant that on 27.3.1991, meeting is going to be convened and in that particular meeting, he would see that the papers of complainant are placed for necessary permission. On 27.3.1991 in the evening, the complaint learnt through accused no. 1-J.D. Patel that the revised plan of the complainant was not accepted and the application was rejected. On 31.03.1991, the complainant and his advocate-Shri Jashubhai Motilal Sheth went to the residence of TDO-Shri Vaghela and told TDO that injustice has been done with the complainant by not granting the necessary permission. The TDO, in turn, told the complainant that the complainant should come and discuss the matter in his office on 01.04.1991. On 01.04.1991, the complainant with one M.M. Patel, Technical Engineer met Shri Vaghela. Shri Vaghela called for the necessary files from original accused no. 1 and he told the complainant that three years had already elapsed from the date first admission was granted, and therefore, the complainant will have to pay some fine to which the complainant readily acceded. The TDO Shri Vaghela directed the complainant to pay a fine of Rs. 368.30 ps. which was paid by the complainant on 02.04.1991 in the office of the Gram Panchayat, Chhatral and placed the receipt of the same before the TDO at 11:30 on the next day. At that point of time, complainant is said to have requested original accused no. 1-J.D. Patel with whom the file of the complainant used to remain that original accused no. 1 should see to it that the matter is expedited at the earliest and necessary permission is accorded. At that point of time, original accused no. 1-Shri J.D. Patel is said to have told the complainant that if the complainant wants the work to be done expeditiously, the complainant should become little practical. Thereafter, original accused no. 1-J.D. Patel wanted to convey by saying that complainant should become little practical, and therefore, he should clarification from original accused no. 2. Original accused no. 1-J.D. Patel is said to have the complainant that if the complainant pays amount of Rs. 1000/- to original accused no. 1, he would see to it that the matter is expedited. The complainant was not willing to give bribe. However, ultimately, the matter was settled for Rs. 500/-. The complainant told original accused no. 1 that he was not carrying Rs. 500/- with him to which original accused no. 1-J.D. Patel told the complainant that he should pay him on 03.04.1991 before the recess hours and after he receives the money, original accused no. 1 would see to it that TDO passes necessary orders of permission in favour of the complainant. Thereafter, the complainant approached the ACB Office and lodged the complaint against the accused. Thereafter, P.I. Shri Mourya of ACB arranged for two panchas. The complainant and members of raiding parties were introduced to the panch witnesses. After the following necessary procedure, the aforesaid aspect was verified and a trap was arranged, wherein the original accused no. 2 accepted the bribe amount of Rs. 500/- on behalf of accused no. 1. Thereafter, they were caught.

3. After completion of the investigation, the chargesheet was filed before the learned Magistrate Court. As the case was exclusively triable by the Court of Sessions, learned Magistrate Court under Section 209 of the Code of Criminal Procedure, 1973 (for short “Cr.P.C.”) committed the said case to the Court of learned Special Judge, Mehsana, which was, thereafter, numbered as Special (ACB) Case No. 10 of 1992.

4. At the time of trial, in order to bring home the charges leveled against the original accused, the prosecution examined 6 witnesses as well as the prosecution also produced 36 documentary evidences.

5. At the end of the Trial and after recording the statement of the accused under Section 313 of Cr.P.C. and hearing the arguments on behalf of the prosecution and the defence, the learned Special Judge, Mehsana convicted the accused of the charges for the aforesaid alleges offences. On completion of the trial, the Sessions Court passed the judgment and order convicting the accused for the above alleged offences.

6. Being aggrieved by and dissatisfied with the aforesaid judgment and order passed by the learned Sessions Court, the appellant-accused have preferred the present Criminal Appeals.

7. Learned advocate for the accused submitted that the learned Trial Judge has committed an error in convicting the accused for the alleged offences without their being any charge against the accused to the effect that the accused demanded and accepted gratification Rs. 500/- from the complainant as a motive or reward for inducing original accused no. 1 a Public Servant to do an official act or to show some favour to the complainant in connection with the complainant's N.A. work and more particularly, without there being an iota of evidence on record to this effect. Learned counsel further submitted that the conclusions of the Trial Court could be sustained when admittedly assurance to the complainant to get the N.A. Permission was given by original accused no. 1 and according to the prosecution's own case and the evidence of the complainant, this arrangement was finally settled at the office of original accused no. 1 in absence of original accused no. 2. Admittedly, original accused no. 2 was not there nor it is alleged that the original accused no. 2 had any knowledge about the arrangement. It could not be held that original accused no. 2 was sharing the intention with original accused no. 1 or was acting on his behalf. Learned counsel further submitted that original accused no. 2 had no idea to what amount was to be paid to original accused no. 1 by the complainant for what it was to be paid and how it was to be paid. Learned counsel further submitted that it is also important to note that in the cross examination of the Investigating Office at Exh:92, the I.O. has admitted that he has recorded number of statements of the owner employees who were working in the office near the table of original accused no. 1 and in none of the statement of those employees, presence of original accused no. 2 has been down or that nothing has been shown that some transaction took place between original accused no. 1 and the complainant. Learned counsel further submitted that the most of the witnesses were turned hostile and the panchas have also not supported the case of the prosecution. Learned counsel further submitted that the prosecution has failed to prove that the experiment of anthracene powder and U.V. Lamp were conducted in the ACB Office. Therefore, the story of the prosecution is doubtful. Learned counsel further submitted that Rs. 500/- is not recovered from the custody of original accused no. 1. Learned counsel further submitted that the learned Trial Court has failed to appreciate the fact that the important element i.e. demand, acceptance and recovery should be required to be established by the prosecution and the prosecution has totally failed to prove this factor. Learned counsel further submitted that there is no reliable evidence on record to prove that the complainant met the accused and the accused had made the demand of illegal gratification of Rs. 500/-. Learned counsel further submitted that the learned Trial Judge has committed grave error of law in convicting the accused for the alleged offences. Learned counsel further submitted that the appeals are required to be allowed and the impugned judgment and order passed by the learned Trial Court is required to be quashed and set aside.

8. As against that, learned APP for the State supported the judgment and order of the Trial Court submitting that the same was passed after appreciating the evidence adduced on record by the prosecution and hence, no interference is called for with the same at the hands of this Court. She prays the Hon'ble Court to dismiss the present appeals. Therefore, the impugned judgment and order passed by the learned Trial Court is required to be confirmed.

9. I have heard the learned advocate for the accused and learned APP for the State-respondent and perused the material on record.

10. This takes the Court to the punishment inflicted on the accused convicting him of the charge for the offence under Sections 7, 8 and 13(1)(d) of the Act. It is necessary to reproduce Sections 7, 8 and 13(1)(d) of the Act, which read as under:

“7. Public servant taking gratification other than legal remuneration in respect of an official act.-Whoever, being, or expecting to be a public servant, accepts or obtains or agrees to accept or attempts to obtain from any person, for himself or for any other person, any gratification whatever, other than legal remuneration, as a motive or reward for doing or forbearing to do any official act or for showing or forbearing to show, in the exercise of his official functions, favour or disfavour to any person or for rendering or attempting to render any service or disservice to any person, with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment which shall be not less than six months but which may extend to five years and shall also be liable to fine.

(Explanations) (a) Expecting to be a public servant. If a person not expecting to be in office obtains a gratification by deceiving others into a belief that he is about to be in office, and that he will then serve them, he may be guilty of cheating, but he is not guilty of the offence defined in this section.

(b) Gratification. The word gratification is not restricted to pecuniary gratifications or to gratifications estimable in money.

(c) Legal remuneration. The words legal remuneration are not restricted to remuneration which a public servant can lawfully demand, but include all remuneration which he is permitted by the Government or the organization, which he serves, to accept.

(d) A motive or reward for doing. A person who receives a gratification as a motive or reward for doing what he does not intend or is not in a position to do, or has not done, comes within this expression.

(e) Where a public servant induces a person erroneously to believe that his influence with the Government has obtained a title for that person and thus induces that person to give the public servant, money or any other gratification as a reward for this service, the public servant has committed an offence under this section.”

“Section 8: Taking gratification, in order, by corrupt or illegal means, to influence public servant.- Whoever accepts or obtains, or agrees to accept, or attempts to obtain, from any person, for himself or for any other person, any gratification whatever as a motive or reward for inducing, by corrupt or illegal means, any public servant, whether named or otherwise, to do or to forbear to do any official act, or in the exercise of the official functions of such public servant to show favour or disfavour to any person, or to render or attempt to render any service or disservice to any person with the Central Government or any State Government or Parliament or the Legislature of any State or with any local authority, corporation or Government company referred to in clause (c) of section 2, or with any public servant, whether named or otherwise, shall be punishable with imprisonment for a term which shall be not less than six months but which may extend to five years and shall also be liable to fine.”

“Section 13: Criminal misconduct by a public servant - (1) a public servant is said to commit the offence of criminal misconduct,-

(d) if he,-

(i) by corrupt or illegal means, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(ii) by abusing his position as a public servant, obtains for himself or for any other person any valuable thing or pecuniary advantage; or

(iii) while holding office as a public servant, obtains for any persons any valuable thing or pecuniary advantage without any public interest. Or

11. Considering the above provisions of the Act and going through the evidence on record and the impugned judgment and order, there is corroborative evidence of witnesses that there was no recovery from original accused no. 1 and there was no demand by the accused persons which has been clearly accepted by the Investigating Officer himself. Panch no. 1 does not say that the original accused no. 2 had demanded Rs. 500/- from the complainant. Some of the witnesses have turned hostile and the panchas have also not supported the case of the prosecution. An amount of Rs. 500/- was not recovered from the custody of the accused, but the said amount was recovered from original accused no. 1. When the complaint was rejected, the complainant approached the accused for about twenty times and the complainant wanted to give bribe to him for his work and the complainant remained in silence for twenty times. In the present case all that can be said even assuming for a moment without admitting the case of the prosecution as it is that the original accused no. 2 merely accepted the amount from the complainant at the instance of original accused no. 1 and the only evidence, which has come on record, is that on the date of the incident, the presence of original accused no. 2 in the office of original accused no. 1 was incidental. Original accused no. 1 had come to the TDO office for his personal work where he was standing near the table of original accused no. 1 and when the complainant offered the money, original accused no. 1 did not deem fit to accept the same in the office, and therefore, the complainant gave the said amount to original accused no. 2 on the gallery and this is how that money is said to have been accepted by original accused no. 2. It could not be held that original accused no. 1 accepted this amount for any purpose and at best as the complainant told the original accused no. 2 to pass on Rs. 500/- to original accused no. 1, he accepted it but on that basis, it could not be held that original accused no. 2 was sharing the intention with original accused no. 1 or was acting on his behalf. Therefore, when the amount was entrusted to original accused no. 1, original accused no. 1 inquired as to how much rupees were there. Original accused no. 2 had no idea to what amount was to be paid to original accused no. 1 by the complainant for what it was to be paid and how it was to be paid. Accused no. 2 did not know for what purpose the money was given to him by complainant. Original accused no. 2 only accepted that amount to be given to original accused no. 1. Therefore, it cannot be said that original accused no. 1 had accepted the amount upon his demand to the complainant. Further, it is not proved whether the anthresene powder was used or not. In corruptions cases, the initial demand is the vital part of the prosecution case, but in the present case, to bring home the charge under the corruption offences, the prosecution has to prove beyond reasonable doubt (i) the initial demand, (ii) an agreement with regard to the acceptance, time and place and (iii) the demand preceding the acceptance and acceptance of the amount. If initial demand is not established then an agreement to accept the amount of particular date and particular time also becomes doubtful. Therefore, in the present case, the initial demand is not proved. It is borne out from the evidence of the complainant that before about twenty days, he had been to the office of the accused for inquiry about the proceedings in revised N.A. Application being given. PW Nos. 2, 3 and 5, have stated that there was no demand by original accused no. 2 at the time of raid or at the place of incident. This takes this Court to the main aspect whether the accused had not demanded and accepted the money and the said amount was not recovered from possession of original accused no. 2. No panchas have seen the accused making any demand. Once it is established that no details of how and when the demand was made, the benefit should go to the accused. In this case, the accused persons have not demanded any bribe amount. This factual aspect is brushed aside by the learned Trial Judge. Therefore, in the present case, the prosecution has failed to prove its case beyond reasonable doubt against the accused persons. Therefore, these appeals deserve to be allowed and the impugned judgment and order passed by the learned Trial Court is required to be quashed and set aside. From the evidence on record, it cannot be said that there was recovery from the person of the accused. The demand of illegal gratification by the accused has not been proved and some currency notes were handed over to the accused to make it as acceptance of gratification. In this case, it is not in dispute that the muddamal currency notes were not found from the possession of original accused no. 1. There was no demand, acceptance and recovery of the amount from accused no. 1. As far as Section 7 of the Act is concerned, the possession and recovery of the currency notes from the original accused no. 1 without proof of demand will not bring home the offence under Section 7 of the Act. So far as the offence under Section 13(1)(d) of the Act is concerned, 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 and the possession and recovery of currency notes from the accused without proof of demand will not bring home the offnece under Section 3(1)(d) of the Act. It is not proved that accused had made any demand. The accused persons had not demanded the bribe from the complainant and the complainant had paid the amount to original accused no. 2. The learned Trial Judge, after framing the determination, held that in his findings, original accused no. 2 herein was a Government Servant to which learned counsel for the accused has no grievance to those findings that this Court has pointed out whether Rs. 500/- was illegal gratification under the the said Act. Panch nowhere stated that the accused had demanded the money. It is the case of the prosecution that the amount was paid to the person, who was not the Government Servant i.e. original accused no. 2. There was no fresh demand when the complainant came to the place of the accused. According to the complainant and Investigating Officer, there was no independent person, who could hear regarding the alleged demand. The demand cannot be believed to be based on conjuncture and surmises and the learned Trial Judge has done that if findings of this effect can be said to be proper, there were contradictions in their statements. The learned Judge has relied upon surmises rather than hard reality which is not correct and improper. The contradiction suggests that the defence version of Section 313 is a plausible. At the end of the trial, after examining the witnesses and after exhibiting the documents, the accused have been convicted which is incorrect or improper. After the prosecution concluded its evidence, the accused were put questionnaires under Section 313 of Cr.P.C. and stand was that accused persons have, till date, never demanded any illegal gratification. No amount was ever recovered from original accused no. 1. I am not going into other details of statement under Section 313 of Cr.P.C. Panch no. 1 does not say that the accused persons had demanded Rs. 500/- from the complainant. The panch has also not supported the case of the prosecution. It is not proved whether Rs. 1000/- was demanded by original accused no. 1. Therefore, in the present case, the prosecution has failed to prove its case beyond reasonable doubt against the accused. The demand of illegal gratification by the accused has not been proved and some currency notes were handed over to the co-accused i.e. acquitted accused to make it as acceptance of gratification. In this case, it is not in dispute that the muddamal currency notes were not found from the possession of original accused no. 1. 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 and the possession and recovery of currency notes from the appellant-accused without proof of demand will not bring home the alleged offence. In the present case also, recovery of illegal gratification was not proved from the possession of original accused no. 2, and therefore, presumption under Section 20 cannot be drawn against the accused. I am supported in my view by the decision of the Apex Court in the case of Satvir Singh v. State of Delhi thru. CBI reported in AIR 2014 SC 3798, wherein it is observed as under:

“33. The learned senior counsel for the appellant has also placed reliance upon the case of Banarsi Das referred to supra wherein it was held that:

24. In M.K. Harshan v. State of Kerala this Court in somewhat similar circumstances, where the tainted money was kept in the drawer of the accused who denied the same and said that it was put in the drawer without his knowledge, held as under:

8. & It is in this context the courts have cautioned that as a rule of prudence, some corroboration is necessary. In all such type of cases of bribery, two aspects are important. Firstly, there must be a demand and [pic]secondly, there must be acceptance in the sense that the accused has obtained the illegal gratification. Mere demand by itself is not sufficient to establish the offence. Therefore, the other aspect, namely, acceptance is very important and when the accused has come forward with a plea that the currency notes were put in the drawer without his knowledge, then there must be clinching evidence to show that it was with the tacit approval of the accused that the money had been put in the drawer as an illegal gratification.

The above-said paragraph from the above mentioned case would go to show that the divergent findings recorded by the High Court on the factum of demand and acceptance of illegal gratification by the appellant is not proved in this case. In the said case this Court in unequivocal terms has held that mere demand by itself is not sufficient to establish the offence under the Act. The other aspect, namely acceptance is also very important. There must be clinching evidence with the tacit approval of the accused that money was put by PW-2 on the steel cot as stated by him in his evidence as illegal gratification. In the case in hand, as per the evidence of PW-2 and PW-3, the illegal gratification was in a black rexine bag with a broken zip which was put on a steel cot. As the contents of the bag were not within the knowledge of the accused, therefore, the relevant aspect of the case that the appellant has accepted the illegal gratification as required under Section 7 of the Act is not proved by the prosecution by adducing cogent evidence in this regard.

34. We have examined the evidences on record as a whole, the said evidence is read along with documentary evidence of Exh. PW-1/DA, the contents of which are extracted above. The said document is written by PW-2 in the year 1989, therefore, reliance should be placed on the said evidence. The explanation which is sought to be elicited from the appellant by the prosecution to discard the said positive evidence in favour of the appellant would further support his plea that he has not demanded gratification from the complainant, PW-2. We are not at all impressed with the plea of the prosecution that the said letter was written by PW-2 under pressure as stated by him in his cross examination in the year 1993. If it is true that the letter was written by PW-2 under pressure, then he should have lodged the complaint in this regard with the jurisdictional police or to the higher officers at that relevant point of time or to the Trial Court when the case was pending. Therefore, the said portion of the evidence of PW-2 cannot be accepted by us as the same is untrustworthy. The black rexine bag containing the illegal gratification which was kept on the steel cot at the residence of the accused on 08.07.1989 was not recovered from the person of the accused. Therefore, neither acceptance nor recovery of illegal gratification from the appellant is proved. Further, the reliance placed upon the relevant paragraphs extracted above from the judgments of this Court by the learned senior counsel on behalf of the appellant applies aptly to the factual situation. Therefore, the demand, acceptance and recovery of the illegal gratification alleged to have been paid to the appellant is not proved by the prosecution. Thus, the Trial Court on overall appreciation of the oral and documentary evidence on record has come to the right conclusion and recorded its findings of fact and held that the demand, acceptance and recovery of gratification from the appellant is not proved, therefore there is no presumption under Section 20 of the Act. The learned trial judge in his judgment has rightly held that presumption of innocence is in favour of the appellant and he was acquitted on merits.”

12. In the above view of discussion, I am of the considered opinion that the Trial Court was not justified in convicting the accused of the charges leveled against them. I find that the findings recorded by the Trial Court are not just and proper and in recording the said findings, illegality or infirmity has been committed by it. The Court below has committed a serious error in law as well as on facts in convicting the accused for the alleged offences. Therefore, the impugned judgment and order passed by the learned Trial Court deserves to be quashed and set aside.

13. The Criminal Appeals are allowed. The judgment and order dated 01.04.2000 passed by learned Special Judge, Mehsana in Special Case (ACB) No. 10 of 1992 is quashed and set aside. The accused-appellants are acquitted of the charges levelled against them. The bail and bail bond stands cancelled. Surety, if any, shall stand discharged. The appellants-original accused are ordered to be released forthwith and they shall be set free forthwith if not required in any other case. Fine, if any, paid by the appellants-accused shall be refunded to him by the respondent-State. Record and Proceedings be sent back to the Trial Court concerned forthwith.