Important Point:
Recovery of tainted money is not sufficient to convict the accused. There has to be corroboration of the testimony of the complainant regarding the demand of bribe and when the complainant is not available for examination during the trial, court has to be cautious while sifting the evidence of other witnesses. Charge has to be proved beyond reasonable doubt.

1. The appellant has preferred the present appeal under section 374 (2) of the Code of Criminal Procedure, 1973 against the judgment and order of conviction dated 29.10.2001, rendered by learned Special Judge, Ahmedabad in Special Case No. 28 of 1993.

2. The short facts giving rise to the present appeal are that the accused persons were doing audit work with Chikhli Office. The complainant was running one touring cinema in the name and style of Bharat Touring Cinema and he was required to pay an amount of Rs.10,755/- towards penalty and the balance amount of licence fee etc. As the complainant did not pay the said amount within a given time, the audit party came for doing audit work. The complainant was called by the accused persons to pay the amount with penal interest along with the outstanding penalty, to which the complainant showed his inability to pay the said amount. The members of audit party demanded illegal gratification of Rs.5,000/- but after some discussion amongst them the audit party agreed to accept an amount of Rs.3,000/- in two installments each of Rs.1,500/-. Since the complainant did not desire to give any amount to the accused persons, the complainant approached the ACB office and the trap was arranged. Hence, the complaint came to be lodged against the appellant accused.

3. In pursuance of the complaint, the Investigating Officer carried out the investigation and filed the charge-sheet against the accused persons. 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 CrPC 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. Learned advocate Mr. H.N. Joshi has argued that since the complainant died during pendency of trial, the complainant could not be examined and therefore, the entire case as regards the demand and acceptance is rested upon the oral deposition of pancha no.1 who is normally required to eye witness the conversation which may take place between the complainant and the accused. Therefore, for want of examination of the complainant, the prosecution could not establish its case beyond reasonable doubt as regards previous demand and scaling down the demand of illegal gratification from Rs.5,000/- to Rs.3,000/-. He submitted that so far as the evidence of P.W.No.1 Chimanbhai Khushalbhai Patel who performed his duty as a PW No.1 is concerned, he has deposed that at the place of trap, the accused Mankodi (since died) took him nearby a tea – vendor stall. At that time, Mr. Patel was also accompanied him and Mr. Patel told not less than Rs.3,000/- and he also eye witnessed the conversation took place as regards initial demand as well as subsequent demand and therefore, the prosecution could not prove the vital ingredients as regards demand and acceptance by way of leading cogent and clinching evidence to establish them as such. He has further argued that recently also, the Supreme Court has considered the same point in the case of Selvraj Vs. State of Karnataka, reported in (2015) 10 SCC 230, wherein also the Supreme Court considered the vital ingredients as regards d