Important Point:
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.

R.P. Dholaria, J.

1. The appellant has preferred the present appeal under section 374 of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 29.11.2003 rendered by learned Additional Sessions Judge, 2nd Fast Track Court, Mehsana in Special ACB Case No. 15 of 2001.

2. The short facts giving rise to the present appeal are that the complainant approached the appellant for getting necessary signatures on the form for transferring the electricity connection from Ganeshpura to Devpura for which the appellant demanded Rs. 500/-. It is the case of the prosecution that the appellant also informed the complainant to pay the amount of tax and hence the complainant gave the amount of Rs. 500/- towards the tax for which the appellant has given necessary receipt. It is alleged that the complainant again requested the appellant to sign the form and other documents relating to transfer of electricity connection from one place to another, at that time, the appellant demanded another Rs. 200/-. As the complainant did not want to give the said amount of illegal gratification, he lodged the complaint before the ACB office on 14.5.2001.

3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the chargesheet against the appellant accused. The charge was framed against the accused. The accused pleaded not guilty to the charge and claimed to be tried.

3.1 In order to bring home the guilt, the prosecution has examined witnesses and also produced documentary evidences.

3.2 At the end of the trial, after recording the statement of the accused under section 313 of the Code of Criminal Procedure 1973 and hearing the arguments on behalf of the prosecution and the defence, learned trial Court delivered the judgment and order, as stated above.

4. Being aggrieved by the same, the appellant has preferred the aforesaid Criminal Appeal before this Court.

5. By way of preferring the present appeal, the appellant has mainly contended that learned trial Court has failed to appreciate the evidence on record and wrongly recorded the order of conviction. It is further contended that learned trial Judge has not appreciated the evidence on record in its proper perspective and in fact, there was no appreciation of evidence so far and hence, the impugned judgment and order of conviction is required to be reversed, as such.

6. Mr. J.M. Panchal, learned senior advocate with Mr. K.J. Panchal, learned advocate for the appellant has taken this Court through the evidence of the witnesses as well as impugned order and argued that the complainant himself has deposed in examination-in-chief that the amount tendered at the time of trap was in order to clear outstanding dues of tax and not against any demand as to illegal gratification. He submitted that even in the cross examination, the complainant has clearly deposed that whatever the amount he has handed over to the appellant was in order to clear outstanding dues of tax. He submitted that the said fact is also emerging out from the mouth of panch No. 1 who accompanied the complainant at the time of trap and, therefore, vital ingredients as regards to demand and acceptance are not established by the prosecution. He submitted that even on going through the evidence of PW 3 - Doljibhai Savjibhai Asari, the certificate which came to be recovered from the place of trap clearly discloses that there was outstanding dues of tax payable to the panchayat by the complainant to the extent of Rs. 240/-, however, the said document was not annexed with the chargesheet, but during the course of cross examination of the complainant, the same document was brought on record. He submitted that the said fact is also emerging out from contemporaneous panchnama and therefore, in view of the aforesaid nature of evidence on record, the prosecution has miserably failed to establish vital ingredients as regards to demand, acceptance and recovery as such. He submitted that n