Criminal Appeal No.1398-SB of 2002.
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In the High Court of Punjab and Haryana at Chandigarh.
Criminal Appeal No.1398-SB of 2002.
Date of decision:16-3-2009.
Raj Pal and another.
...Appellants.
Versus
State of Punjab.
...Respondent.
...
Coram; Hon'ble Mr. Justice K. C. Puri.
...
Present: Mr. Rajinder Goyal Advocate for the appellants.
Mr. K.S. Pannu, AAG Punjab.
...
K. C. Puri, J.
Judgment.
The appellants were tried by Shri M.S.Chauhan, the
then Special Judge, Amritsar. Vide impugned judgment dated
5.9.2002, they were convicted under Sections 13(2), 7 and 8 of the
Prevention of Corruption Act,1988 (in short the Act) and 420
IPC. Vide separate order dated 5.9.2002, they were sentenced as
Criminal Appeal No.1398-SB of 2002.
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under:-
Raj Pal, accused.
To undergo rigorous imprisonment for two years and to
pay a fine of Rs.1,000/- and in default of payment of fine, to
undergo further rigorous imprisonment for six months under
Section 7 of the Act.
To undergo further rigorous imprisonment for three
years and to pay a fine of Rs.2,000/- under Section 13(2) of the
Act. In default of payment of fine, he has been ordered to undergo
further rigorous imprisonment for six months.
Under Section 420 IPC, he has been awarded one year
rigorous imprisonment and fine of Rs.1,000/- and in default of
payment of fine, he has been ordered to undergo rigorous
imprisonment for three months.
Narinder Pal, accused.
Under Section 8 of the Act, he has been ordered to
undergo rigorous imprisonment for two years and to pay a fine of
Rs.1,000/- and in default of payment of fine, to undergo further
rigorous imprisonment for six months.
Under Section 13(2) of the Act, he has been ordered to
undergo rigorous imprisonment for three years and to pay a fine of
Criminal Appeal No.1398-SB of 2002.
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Rs.2000/-. In default of payment of fine, he has been ordered to
undergo rigorous imprisonment for six months.
He has been further ordered to undergo rigorous
imprisonment for one year and to pay a fine of Rs.1,000/- under
Section 420 IPC. In default of payment of fine, he has been
ordered to undergo further rigorous imprisonment for three
months.
All the substantive sentences have been ordered to run
concurrently.
The controversy lies within a very narrow scope and
following brief reference to the factual aspects would suffice:-
Gura Singh son of Nihal Singh, resident of village
Dhunda had a son named Swaran Singh who was killed by the
terrorists. His wife had also died. Swaran Singh left behind a son
and his parents namely Gura Singh, father and Dan Kaur, mother.
The aggrieved family received Rs.20,000/- in cash and Rs.30,000/-
in the shape of National Saving Certificates on account of relief
from the Government. However, pension in that respect was not
released in spite of number of rounds having been made by Gura
Singh. He ultimately got in touch with Raj Pal Clerk, in the office
of Sub Divisional Magistrate, Kadoor Sahib, who is an accused in
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this case. Said Raj Pal after going through the file of the case told
Gura Singh that their case was not properly framed as the Senior
Superintendent of Police had stated that Swaran Singh was killed
on account of some enmity. In these circumstances, the National
Saving Certificates and the cash amount of Rs.20,000/- was also to
be returned. He also told Gura Singh that he might also be involved
in a criminal case for having obtained the relief on false grounds.
Gura Singh pleaded before him to help him as his son Swaran
Singh was infact killed in terrorist action. Thereupon,accused Raj
Pal asked Gura Singh to return the National Saving Certificates
and only then he would do something in the matter.
Complainant Gura Singh got in touch with Gurdial
Singh PW on 8.7.1997 and along with him went to the office of the
Sub Divisional Magistrate, Khadoor Sahib. Both of them told Raj
Pal accused that the death of Swaran Singh was in a terrorist action
and pleaded before him to help the complainant by getting the
pension released. Raj Pal accused demanded Rs.10,000/- as illegal
gratification from him. Ultimately, deal was settled at Rs.8,000/-.
The accused also took National Saving Certificates of Rs.30,000/-
from the complainant. Raj Pal accused told the complainant to pay
Rs.8,000/- to his brother Narinder Pal, second accused who was
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running a shop at Fatehabad on 11.7.1997. It was also assured that
after the receipt of money, said Narinder Pal would return National
Saving Certificates to the complainant.
The complainant did not like the idea of getting pension
released in lieu of illegal gratification. Accordingly, he feigned that
he was not possessing sufficient money at that time. The
complainant and Gurdial Singh PW contacted Vigilance Bureau.
The statement of the complainant was recorded and on
its basis, the present case was got registered against the accused.
The complainant produced a sum of Rs.8,000/- in the
form of 16 currency notes in the denomination of Rs.500/- each
before the Investigating Officer. Their numbers were noted down
in a memo. After applying Phenol-phthalein ( in short “P”
Powder), the same were returned to the complainant.
After observing necessary formalities, a raiding party
was organized. Gura Singh and Gurdial Singh went to accused
Narinder Pal. After the money was passed on to accused Narinder
Pal by the complainant on his demand, Gurdial Singh gave a signal
to the police party. Randeep Singh, official witness was joined in
the raiding party. The accused was arrested and the bribe money
was recovered from his hand.
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A tumbler made of plain glass was requisitioned. Water
was put therein and then was put Sodium Carbonate but the colour
of the water did not change. Thereupon, accused Narinder Pal was
made to wash fingers of both his hands therein. Upon this, the
colour of Sodium Carbonate solution turned light pink.
Other steps in the investigation were taken and after
completion of same, the accused were challaned.
The accused were charge-sheeted accordingly to which
they pleaded not guilty and claimed to be tried.
In order to prove its case against the accused, the
prosecution examined PW-1 Harbhajan Singh, Clerk, PW-2 Jasbir
Singh, Postal Assistant, PW-3 Gura Singh complainant, PW-4
Gurdial Singh, shadow witness, PW-5 Angur Singh, Naib Sadar
Kanungo, PW-6 Randeep Singh, Clerk, PW-7 SP Mohinder Singh,
PW-8 Jugal Kishore, PW-9 HC Tarsem Singh, PW-10 Constable
Karam Singh.
In their statements recorded under Section 313 Cr.P.C,
the accused denied the prosecution allegations appearing against
him. Accused Raj Pal has taken the following stand:-
“I am innocent. False case is made against me. Pension
was sanctioned in favour of Dann Kaur and was being
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never let the illegal work done. He used Gura Singh PW
to make false case against me. I never demanded any
money. Gurdial Singh has links with the people of
Vigilance Department.”
Accused Narinder Pal has come out with a plea that he
was a deed writer and an agent of the Post Office. Gurdial Singh
and Gura Singh came to his shop and handed over money to him
for the purposes of opening an account in the Post Office. National
Saving Certificates were in possession of Gurdial Singh and were
planted upon him.
In their defence, the accused examined DW-1 Pal
Singh.
After trial, the accused were convicted and sentenced,
as noticed earlier.
Feeling aggrieved against the said judgment, the
appellants have filed the instant appeal.
The learned counsel for the appellants has moved an
application under Section 391 read with Section 482 Cr.P.C for
permitting the appellants to lead additional evidence to prove
documents, Annexures A-1 to A-3. It is mentioned that appellant
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No.1 joined the service in the year 1988 in Goindwal Industrial
Investment Corporation but since the said Corporation was closed
he along with others were adjusted on different posts with the State
of Punjab. Ultimately, he joined service as a Clerk with the State of
Punjab on 15.4.1993. He was discharging his duty with due
diligence and with honesty. The appellants could not produce
documents Annexures A-1 to A-3 in the trial Court. These
documents prove the fact that the amount of pension was credited
to the account of Dan Kaur alias Dhan Kaur much prior to the raid
and as such there was no question of demanding illegal
gratification.
Notice of this application was given to the State which
has opposed the prayer.
The learned counsel for the appellants has submitted
that Annexure A-1 is the application dated 8.4.1997 filed by Dan
Kaur for opening an account in the Punjab & Sind Bank. Annexure
A-2 is the certificate of Oriental Bank of Commerce, Taran Taran
stating that cheque No.803734 dated 5.6.1997, has been credited to
her account on 7.6.1997. Annexure A-3 is the copy of ledger
showing that Rs.16,000/- were withdrawn on 7.6.1997 and the
remaining amount of Rs.1,700/- was withdrawn on 14.6.1997. On
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the strength of these documents, it is contended that since the
amount of pension was already credited to the account of Dan Kaur
so there was no question of demanding illegal gratification.
Therefore, the stand taken by the prosecution is belied by the
documentary evidence.
It is further contended that while appearing as a
prosecution witness, the complainant has stated that the amount of
illegal gratification was paid to Raj Pal, accused. He was declared
hostile. In the cross-examination by the Additional Public
Prosecutor, he has improved. The accused has stated that the
amount was paid to Narinder Pal. So, it is contended that the
prosecution has failed to prove demand, acceptance and recovery
of illegal gratification.
It is further contended that the case of the appellants is
clear. In fact, the complainant wanted to deposit the amount of
Rs.8,000/- in the account of Post Office. Narinder Pal, accused was
the agent of Post Office. The said amount was received by
Narinder Pal for depositing the same in the Post Office. The
witnesses of the prosecution have admitted the fact that Narinder
Pal accused was an agent of the Post Office and in spite of that, the
learned trial Court has held that no evidence has been produced by
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the accused that Narinder Pal was the agent of the Post Office.
Therefore, this fact clearly shows that the trial Court has not
applied its mind properly. It is further contended that no recovery
has been effected from Raj Pal who was a Government servant at
the relevant time. In these circumstances also, the case of the
prosecution is not proved.
It is further contended that there is no independent
corroboration of the demand and acceptance of illegal gratification.
The shadow witness is closely related to the complainant. So, his
testimony cannot be accepted. The counsel for the appellants has
relied upon the following authorities:-
(a) Union of India, Thr. Inspector, CBI Versus
Purnandu Biswas, 2005(4) R.C.R (Criminal) 517.
(b) Bir Singh and others v. The State of U.P, AIR
1978 Supreme Court 59.
© Ganga Kumar Srivastava Verus The State of
Bihar, 2005(6) J.T.356.
(d) Anand Parkash Versus State of Haryana, 2008
(2) R.C.R (Criminal) 335 and
(e) Zahira Habibula H. Sheikh and Anr. Versus
State of Gujarat and Ors., 2004 J.T.94.
Criminal Appeal No.1398-SB of 2002.
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The learned State counsel has supported the judgment
of the trial Court and has opposed the prayer for additional
evidence. It is contended that the case of the prosecution is that the
complainant was put under the fear of registering a criminal case
against him for the purposes of extracting money from him. Raj
Pal accused further told the complainant that he was not only to
return the amount of Rs.20,000/- in cash and Rs.30,000/- in the
shape of National Saving Certificates but a criminal case would be
registered on the ground that his son was not killed in terrorist
activities. Under threat, Raj Pal accused directed the complainant
to pay the amount to Narinder Pal. The trial Court has held that
Narinder Pal is not an agent of the Post Office. The appellants have
moved an application for additional evidence but still they have not
produced any document on the file to show that Narinder Pal was
the agent of Post Office. So, that stand taken by the accused stands
belied. The prosecution has been able to prove the ingredients of
offences beyond any reasonable doubt, for which the accused have
been charged. It is further submitted that the authorities relied upon
by the counsel for the appellants are not applicable to the facts of
the present case. Therefore, a prayer has been made for the
dismissal of the appeal.
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I have given my careful consideration to the rival
submissions made by both sides and have gone through the record
of the case.
In this case, the case of the prosecution is that Swaran
Singh son of Gura Singh complainant was killed by the terrorists
and, on that count, the aggrieved family received Rs.20,000/- in
cash and Rs.30,000/- in the shape of National Saving Certificates,
as per policy of the Punjab Government. Gura Singh met Raj Pal,
accused for release of pension but he told Gura Singh that since
there was no report from the Senior Superintendent of Police that
Swaran Singh was killed in terrorist activities but there was report
of Senior Superintendent of Police that Swaran Singh was killed
due to enmity. So, in these circumstances, the complainant had to
return Rs.20,000/- in cash and Rs.30,000/- in the form of National
Saving Certificates. Raj Pal accused also told the complainant that
a criminal case would be registered against him and, on that count,
he demanded Rs.10,000/-. The deal was settled at Rs.8,000/-. Gura
Singh came in touch with Gurdial Singh who told the complainant
not to pay the bribe amount, as per agreement. The bribe amount
was to be paid to Narinder Pal, accused. A raid was conducted by
the Vigilance Department and Narinder Pal was caught red handed.
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The “P” Powder test proved positive. The learned trial Court after
appraisal of evidence on the file came to the conclusion that the
prosecution has been able to prove the ingredients of offence for
which the accused have been charged and consequently convicted
both the accused, as detailed above.
The main plank of arguments of counsel for the
appellants is that since the pension has already been credited to the
account of Dan Kaur much prior to the raid and that the amount of
pension had been withdrawn by her in the month of June, i.e. prior
to the raid, therefore, there was no motive for demanding the
amount.
The above-said contention raised by the counsel for the
appellants looks attractive but is without any legal force. The case
of the prosecution is that Raj Pal accused told Gura Singh
complainant that there was a report of the Senior Superintendent of
Police that Swaran Singh, his son was not killed in terrorist
activities and was murdered for personal enmity and, on that count,
the complainant party had to return Rs.20,000/- and NSC of
Rs.30,000/- and the complainant was also told that he will have to
face trial. The fact remains that according to the prosecution case,
the complainant was put in fear of criminal litigation. Moreover,
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pension is drawn monthly and the case of the prosecution is that
when he went to Raj Pal accused for allowing him pension, Raj Pal
demanded Rs.10,000/- and the matter was settled at Rs.8,000/-.
The said amount was to be paid to Narinder Pal, accused. The
National Saving Certificates were also taken into possession from
the complainant. Mere fact that the complainant has stated that the
amount was paid to Raj Pal, accused is not sufficient to discard
testimony of the complainant Gura Singh. He was got declared
hostile and he has supported the case of the prosecution on all the
material particulars. He was cross-examined at length but nothing
could be brought on the file to discard his sworn testimony. He is a
rustic villager. Gurdial Singh, shadow witness stood like a rock
while appearing in the witness-box. There was absolutely no
reason for the complainant and the shadow witness for falsely
implicating the accused. The amount of Rs.8,000/- along with
National Saving Certificates were recovered from Narinder Pal on
a raid. The stand taken by the accused that the said amount was
given to Narinder Pal for opening an account in the Post Office has
been negatived by the trial Court. One of the grounds for
discarding that story is that Narinder Pal has failed to prove the
fact that he was an agent of the Post Office. Admittedly, no
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document to prove the fact that Narinder Pal was an agent of the
Post Office has been produced in the trial Court. The appellants
have also filed an application under Section 391 Cr.P.C and while
filing that application, no document has been placed on the file that
Narinder Pal was the agent of the Post Office. The best evidence,
in this case, was the documents issued by the Post Office but the
same have not been produced in the trial Court and even in the
Appellate Court while moving an application under Section 391
Cr.P.C. So, the stand taken by the appellants to the effect that an
amount of Rs.8,000/- was accepted by Narinder Pal for depositing
the same in the Post office is only to avoid legal punishment.
So far as submission made by the counsel for the
appellants that there is no independent corroboration to the
testimony of the complainant is concerned, the same is without any
substance. Gurdial Singh, shadow witness who has no axe to grind
against the accused has supported the case of the prosecution.
So far as additional evidence is concerned, the same
will not improve the case of the appellants, in the instant case, as
discussed above. Even if all these documents are taken into
account, they will only prove the fact that Rs.18,000/- have been
credited to the account of Dan Kaur on 7.6.1997 and she has
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withdrawn the amount in the month of June,1997 but according to
the prosecution story, the complainant party was put in fear of
criminal litigation on the ground that there was report of Senior
Superintendent of police that Swaran Singh died due to personal
enmity and not on account of terrorist activities.
Authority in case Zahira Habibula H. Sheikh and
Anr. (supra) is not helpful to the appellants. In that case, it has
been held that where there is dishonest and faulty investigation and
star witnesses are threatened, in that case, additional evidence can
be allowed. There is no dispute with this proposition of law. In the
present case, it is no body’s case that no opportunity was afforded
to the defence. The evidence now sought to be produced was well
within the knowledge of the appellants. Otherwise also, as
discussed above, even if the entire evidence is taken into account,
in that case, the case of the appellants will not be improved by the
evidence sought to be produced. So, in these
circumstances,application for additional evidence stands dismissed.
Authority in case Purnandu Biswas (supra), is
distinguishable as in that case, demand of illegal gratification was
not held to be proved.
Authority in case Bir Singh (supra) lays down that it is
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the duty of the prosecution to examine all the independent
witnesses. In the present case, the prosecution has examined all the
material witnesses. So, the above-said authority does not advance
the case of the appellants, in any manner.
Authority in case Ganga Kumar Srivastava (supra), is
also distinguishable as in that case, currency notes were not treated
with Phenolphthalein Powder and the evidence was shaky.
Therefore, the said authority is not applicable to the facts of the
present case.
Authority in case Anand Parkash (supra), is also
distinguishable as, in the present case, demand and acceptance
stand established beyond reasonable doubt.
The learned counsel for the appellants has submitted
that PW-6 Randhir Singh, Clerk has stated in his cross-
examination that the amount was paid to Narinder Pal for
depositing in the Post Office and, on that count, the defence
version is proved.
I have carefully considered the said submission but do
not find any force in the same. The statement made by PW-6
Randhir Singh is against the record and as such cannot be given
much importance. The learned trial Court has rightly discarded his
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testimony in cross-examination.
The learned counsel for the appellants has further
contended that the punishment is harsh. The appellants have
undergone the agony of trial for a period of about 12 years. Raj
Pal has been dismissed from service. So, a prayer has been made
for reduction of sentence in case the Court is not inclined to accept
the prayer for acquittal.
I have carefully considered the said submission.
The occurrence relates to the year 1997. Raj Pal accused
is stated to have been dismissed from service. Since then, the
appellants are stated to have undergone mental agony. So, in these
circumstances, the sentence of Raj Pal, accused under Sections 7
and 13(2) of the Act stands reduced to one year. The sentence of
fine under Sections 7 and 13(2) of the Act and sentence of
imprisonment and fine under Section 420 IPC in respect of Raj Pal
accused stand maintained.
The sentence of Narinder Pal under Sections 8 and 13
(2) of the Act also stand reduced to rigorous imprisonment for one
year. His sentence of fine under Sections 8 and 13(2) of the Act
and sentence of imprisonment and fine under Section 420 IPC
recorded by the trial Court stand maintained.
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With the above modification, this appeal stands
dismissed.
A copy of this judgment be sent to the trial Court for
strict compliance.
March 16th ,2009. ( K. C. Puri ) Jaggi Judge