Criminal Appeal No.600- SB of 1998.
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In the High Court of Punjab and Haryana High Court at Chandigarh.
Criminal Appeal No.600-SB of 1998.
Date of decision:14-8-2008
Chand Ram.
...Appellant.
Versus
State of Haryana.
` ...Respondent.
...
Coram: Hon'ble Mr. Justice K. C. Puri.
...
Present: Mr.Baldev Singh, Senior Advocate with Mr.Arshwinder
Singh, Advocate for the appellant.
Mr.Dinesh Arora, AAG Haryana.
...
K. C. Puri, J.
Judgment.
The appellant is aggrieved against the judgment/order dated
24.7.1998 passed by Shri Virendra Singh, the then Special Judge,
Sonepat whereby he convicted the appellant under Section 7 of the
Prevention of Corruption Act,1988 and sentenced him to undergo
rigorous imprisonment for a period of four years and to pay a fine of
Rs.5,000/- and in default of payment of fine, to undergo further
Criminal Appeal No.600- SB of 1998.
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imprisonment for six months.
Concisely, the prosecution case is that the complainant
approached Shri Samay Singh, Deputy Superintendent of Police
(Headquarters), Sonepat in his office on 5.3.1997 and presented before
him a written complaint about the harassment caused to him by Chand
Ram, Junior Engineer. The complainant has alleged that he had
constructed house No.1531 in Sector 15, three or four years earlier but
completion certificate was not supplied to him. Chand Ram, Junior
Engineer, who is an accused in this case, had already pocketed a sum of
Rs.15,000/- for the purpose and was further demanding Rs.5,000/-
more for giving completion certificate to him. He had constructed yet
another house bearing No.395 in Sector 15. The accused was
demanding a sum of Rs.40,000/- for the issuance of completion
certificate to him. He requested for taking necessary action against the
accused.
The written complaint was immediately sent to Police
Station City, Sonepat through Constable Rajender Singh, No.478 for
the registration of a case. The Information was sent to the
Superintendent of Police who made a request to the Deputy
Commissioner, Sonepat for deputing an Executive Magistrate to join
the raiding party. Thereupon, Shri Rajinder Singh Gehlaut, Naib
Tehsildar-cum-Executive Magistrate arrived in the office of Deputy
Superintendent of Police, under the orders of the Deputy
Criminal Appeal No.600- SB of 1998.
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Commissioner. All the witnesses were introduced to Shri Mohan Lal
Madan, complainant who was asked to hand over currency notes to the
police which he had brought with him for payment as illegal
gratification to the accused. Shri Ravinder Kumar, District Inspector,
Sonepat was also joined in the raiding party.
Complainant Mohan Lal Madan was directed to visit
HUDA office and call Chand Ram, accused out of his office and pay
the amount of illegal gratification to him. The complainant possessed a
mobile phone. He was required to use the phone by giving a call at the
other phone retained by the DSP immediately after the amount was
received by the appellant. The second party was required to wait in a
car parked at some distance from the HUDA office. Inspector Ravinder
Kumar was required to travel with the complainant in his Maruti car
bearing registration No.HR-10B-1942. The police party waited in
another car. The DSP received the signal on his phone through the
phone bell upon which he took his car to the gate of the office and
rounded up the appellant. The DSP offered himself for search to the
accused and then carried out the search of the appellant and retrieved
the same duly initialled eighty currency notes of the denomination of
Rs.500/- each from the pocket of the pants of the appellant. The
currency notes were washed in Sodium Carbonate solution and the
residue was collected in a bottle. The hands of the appellant were also
washed in Sodium Carbonate solution and the residue was collected in
Criminal Appeal No.600- SB of 1998.
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a separate bottle. The pocket of the pants was also similarly washed in
the solution and the residue was collected in another bottle. The
currency notes, the pants and the residue collected in the bottles were
duly sealed. All the sealed parcels were taken into possession through a
memo duly attested by the witnesses present at the spot. The seal, after
use, was handed over to Shri Rajinder Singh Gehlaut, Executive
Magistrate. Investigation in the case was conducted and ultimately the
accused was challaned.
The accused was charge-sheeted for commission of offence
punishable under Section 7 of the Prevention of Corruption Act to
which he pleaded not guilty and claimed trial.
During trial, the prosecution examined PW-1 HC Sitar
Singh, PW-2 Inderpal, Draftsman, PW-3 Sudeep Singh Dhillon, PW-4
Mohan Lal Madan, PW-5 Inspector Ram Kishan, PW-6 Samay Singh,
PW-7 Inspector Ravinder Kumar, PW-8 Rajbir Singh and PW-9
Rajinder Singh Gehlaut.
Statement of the accused under Section 313 Cr.P.C was
recorded in which he pleaded that he was implicated in a totally false
case. Mohan Lal Madan had offered to purchase a Revolver for a sum
of Rs.40,000/-. He went to his office on 5.3.1997 and paid the amount
to him. As he was in the process of handing over the Revolver to the
complainant, some persons nabbed him and framed him in this case.
There was no question of demanding illegal gratification from Mohan
Criminal Appeal No.600- SB of 1998.
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Lal Madan as he had already completed all the formalities within his
power approximately two months prior to the alleged incident. Even
the file had been sent by the Estate Officer to the Administrator at
Faridabad for assessing the composition fee. He was no where in the
picture after he had recorded his note on 18.1.1997. It was a false
against him.
The accused did not lead any evidence in defence.
The learned trial Court, after conclusion of trial, has
convicted and sentenced the appellant, as noticed in the earlier part of
this judgment.
Feeling aggrieved, the appellant is before this Court in the
present appeal.
The learned counsel for the appellant has submitted that in
order to prove offence under the Prevention of Corruption Act, the
prosecution is required to establish the following ingredients:-
(a) There is a demand of illegal gratification.
(b) The Government servant has accepted illegal
gratification.
© That the recovery of illegal gratification has been
effected from the accused.
It has been submitted that without proving the demand of
illegal gratification, offence under Section 7 of the Prevention of
Corruption Act is not made out. The complainant is the best witness to
Criminal Appeal No.600- SB of 1998.
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prove the demand of illegal gratification by the accused. The
prosecution examined PW-4 Mohan Lal Madan who is the
complainant, in the present case. This witness has not supported the
case of the prosecution and has stated that he had paid Rs.40,000/-to
the accused not in connection with the demand of illegal gratification
but has paid him Rs.40,000/- on account of purchase of Revolver from
him. The testimony of Shri Ram Kishan, Inspector Welfare, in this
regard, cannot be taken into account.
I have carefully considered the said submission but do not
find any force in the same.
Complainant Mohan Lal Madan moved application Exhibit
PA complaining that Rs.15,000/- have already been paid to the
accused. He has categorically mentioned in his application, Exhibit PA,
that Rs.40,000/- have been demanded by the accused in connection
with the issuance of completion certificate in respect of his house. It
has been further mentioned in Exhibit PA that the accused has
threatened the complainant that in case illegal gratification of
Rs.40,000/- was not paid, the said certificate would not be supplied.
The statement made by this witness to the effect that an amount of
Rs.40,000/- was paid to the accused in connection with the purchase of
Revolver is an attempt to save the accused from legal punishment and
does not appeal to reason. In case the amount of Rs.40,000/- was to be
paid in connection with the purchase of Revolver, in that case, he
Criminal Appeal No.600- SB of 1998.
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would not have approached the police department to arrange for a raid.
The complainant would not have arranged a raid by tendering
Rs.40,000/- from his own pocket. PW-4 Mohan Lal Madan was
declared hostile.
PW-5 Ram Kishan, Welfare Inspector, has categorically
stated that on 5.3.1997, he went to the office of Deputy Superintendent
of Police (Headquarters). He further stated that Mohan Lal Madan,
complainant who was present there, disclosed in his presence, that he
had already paid Rs.15,000/- to the accused in connection with the
completion certificate. He has further stated that the complainant
tendered 80 currency notes of the denomination of Rs.500/- before the
DSP on which Phenol-phthalein Power (in short P. Powder) was
applied. Moreover, the complainant or the accused had not produced
the licence for keeping the arms. The Court can take judicial notice of
the fact that only a person having arms licence could purchase the
Revolver. Non-production of the licence clearly shows that the story
propounded by the accused regarding payment of Rs.40,000/- in
connection with Revolver has been concocted on the expert advice.
The learned counsel for the appellant has further submitted
that mere recovery of Rs.40,000/- is not sufficient to prove the guilt of
the accused under Section 7 of the Prevention of Corruption Act. To
support this contention, the counsel for the appellant has relied upon
the following authorities:-
Criminal Appeal No.600- SB of 1998.
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(a) Sarwan Singh Versus State of Punjab, 2004(1) RCR
(Criminal) 368.
(b) Subash Parbat Sonvane Versus State of Gujarat,
2003(2) RCR (Criminal) 541.
© Criminal Appeal No.2242-SB of 2003 titled Phool
Kumar Versus State of Haryana, decided on 7.12.2007.
It has been further submitted that presumption under
Section 4 of the unamended Prevention of Corruption Act
corresponding to Section 20 of the present Act can only be attracted
when demand of illegal gratification is proved. To support this
contention, the learned counsel for the appellant has relied upon
authorities in case V.Venkata Subbarao Versus State represented by
Inspector of Police, A.P, (2007) 3 SCC (Cri.) 175 and Sita Ram
Versus The State of Rajasthan, 1975 SCC 9 (Crl.) 491.
It has been submitted that according to all the prosecution
witnesses, the notes were washed after recovery. This fact itself creates
a doubt in the prosecution version as normally the notes are never
washed after alleged recovery.
It has been further submitted that the prosecution has failed
to prove the motive. The alleged recovery has taken place on 5.3.1997.
The completion certificate in respect of one house was already
recommended by the accused on 18.1.1997 and sent to the concerned
authority on 29.1.1997. So far as the said certificate in respect of
Criminal Appeal No.600- SB of 1998.
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second house is concerned, there was no request for the same.
According to the prosecution, the request for completion of second
house was made on 17.7.1997 i.e after the alleged recovery.
The learned State counsel has supported the judgment of
the learned trial Court. It has been submitted that the hands of the
accused were washed and the solution turned pink. The said solution
was analyzed from the Laboratory and there was a report that it
contained P.Powder. The washing of notes does not create any dent in
the prosecution version as the accused has not disputed the recovery of
Rs.40,000/-. A prayer has been made by the State counsel for the
dismissal of the appeal. The State counsel has relied upon authority in
case M. Narsinga Rao Versus State of Andhra Pradesh, 2001(1)
R.C.R (Criminal) 95 equivalent to 2001 A.I.R (SC) 318.
In this case, the accused has not disputed the acceptance of
Rs.40,000/- and has also not disputed the factum of recovery of
Rs.40,000/- from him. Otherwise also, PW-5 Ram Kishan, Inspector
Welfare, shadow witness, PW-6 DSP Same Singh, PW-7 Inspector
Ravinder Kumar and PW-9 Rajinder Singh Gehlaut, Tehsildar have
supported the prosecution version. All of them have supported the fact
that Mohan Lal Madan presented 80 currency notes of the
denomination of Rs.500/- before DSP. Further, Sh.Rajinder Singh
Gehlaut, then working as Naib Tehsildar put his signatures on those
currency notes. P. Powder was applied. The number of notes were
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noted in the memo. These currency notes were handed over to Mohan
Lal Madan for making payment of the same to the accused on his
demand. Inspector Ravinder Kumar was appointed as a shadow
witness. The complainant and Ravinder Kumar went to the office of
HUDA in a car whereas the other party stayed outside the office. The
complainant handed over the cash amount to the accused on his
demand. On receiving signal on his mobile phone by the DSP, the
raiding party reached the HUDA office and apprehended the accused.
The currency notes were recovered from the pocket of the pants of
accused. The hand wash of the accused in Sodium Carbonate turned the
solution pink. The pocket of the pants was also washed in the solution
of Sodium Carbonate and that solution also turned pink. The accused in
his statement under Section 313 Cr.P.C stated that Mohan Lal Madan
was well known to him prior to the occurrence. He had offered to
purchase his Revolver for a sum of Rs.40,000/-. He came to his office
on 5.3.1997 and paid the amount to him. As he was in the process of
handing over the Revolver to the complainant, some persons nabbed
him and framed him in this false case. He has further stated that he did
not demand illegal gratification and the Estate Officer had sent the file
to the Administrator at Faridabad for assessing the composition fee on
18.1.1997. So, from his statement under Section 313 Cr.P.C and the
trend of cross-examination of witnesses, it is revealed that the accused
has not disputed the factum of receiving Rs.40,000/- from Mohan Lal
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Madan and the recovery of the said amount from him. As discussed
above, the demand of Rs.40,000/- also stands proved beyond
reasonable doubt.
The Hon’ble Apex Court in authority in case M. Narsinga
Rao (supra), relied upon by the State counsel summed up legal position
in respect of application of 20 of the Act corresponding to Section 4 of
unamended Act as under:-
“(i) Expressions “may presume” and ” shall presume” are
defined in Section 4 of the Evidence Act. The presumptions
falling under the former category are compendiously
known as “factual presumptions” or “discretionary
presumptions” and those falling under the latter as “legal
presumptions” or “compulsory presumptions”.
(ii)Such a legal presumption under Section 20 is that during
trial, it should be proved that the accused has accepted or
agreed to accept any gratification. The Section does not
say that the said condition should be satisfied through
direct evidence.
(iii) A fact is said to be proved when, after considering the
matters before it, the Court either believed it to exist, or
consider its existence so probable that a prudent man
ought, under the circumstances of the particular case, to
act upon the supposition that it exists.
Criminal Appeal No.600- SB of 1998.
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(iv) Law gives absolute discretion to the court to presume
the existence of any fact which it thinks likely to have
happened. In that process the court may have regard to
common course of natural events, human conduct, public
or private business vis-a-vis the facts of the particular
case. The discretion is clearly envisaged in Section 114
of the Evidence Act.
(v) Presumption is an inference of a certain fact drawn from
other proved facts. While inferring the existence of fact
from another, the court is only applying a process of
intelligent reasoning which the mind of a prudent man
would do under similar circumstances.
(vi) Unless the presumption is disproved or dispelled or
rebutted, the court can treat the presumption as
tantamounting to proof.
(vii) It may be unsafe to use that presumption to draw yet
another discretionary presumption unless there is a
statutory compulsion. 1998(4) RCR (Crl.) 433 (SC)
relied.”
So, the Hon’ble Apex Court has held that direct evidence is
not required to prove that the accused has accepted or agreed to accept
illegal gratification. The circumstances of each case are to be seen. The
recovery, in the present case, has been effected by the DSP in the
Criminal Appeal No.600- SB of 1998.
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presence of a Gazetted Officer and Naib Tehsildar. The factum of
demand is mentioned by the complainant in his application Exhibit PA.
The story of purchase of Revolver does not appeal to reason. So, I have
no hesitation in confirming the finding of the learned trial Court
regarding the guilt of the accused.
So far as authorities in cases Sarwan Singh , Subash
Parbat, Phool Kumar, V.Venkata Subbarao and Sita Ram (supra),
relied upon by the counsel for the appellant are concerned, in all these
authorities, the demand of illegal gratification was not proved and there
were other circumstances which militated against the case of
prosecution. In the present case, as discussed above, the demand of
illegal gratification stands proved and there is no material on the file
which creates a doubt in the prosecution version. Mere fact that
application for completion certificate was made, after the occurrence,
does not create a doubt in the prosecution version. From application,
Exhibit PA, which is supported by the other prosecution witnesses, it is
proved that the complainant has previously paid Rs.15,000/- also for
getting completion certificate. The complainant was having two houses
and completion certificate in respect of one house was not issued prior
to the day of occurrence. PW-8 Rajbir Singh, Estate Officer, in his
cross-examination has stated that the accused was required to check the
building before issuance of completion certificate. It was only on the
recommendation of the accused that a completion certificate was to be
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issued. That was a motive for the demand of illegal gratification.The
washing of notes does not create any doubt in prosecution version as
recovery of tainted currency notes has not been disputed by the
accused.
The prayer for reduction of sentence, to the extent already
undergone, cannot be accepted as corruption is eating the fibre of
Society. In case, the corrupt officials are not hauled up with an iron
hand, the disease of corruption shall spread in the Society. At the same
time, keeping in view the fact that the accused is undergoing the agony
of trial for the last 11 years, his sentence is reduced to two years instead
of four years awarded by the learned trial Court.
With above modification in the sentence part of the
judgment, this appeal stands disposed of.
The accused is on bail. His bail bonds and surety bonds
stand cancelled. He be taken into custody for undergoing the remaining
part of his sentence.
A copy of this judgment be sent to the trial Court for strict
compliance.
August 14th ,2008 ( K. C. Puri ) Jaggi Judge