High Court Punjab-Haryana High Court

Om Parkash Sharma vs State Of Punjab on 3 March, 2009

Punjab-Haryana High Court
Om Parkash Sharma vs State Of Punjab on 3 March, 2009
           Criminal Appeal No.300-SB of 2000.
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In the High Court of Punjab and Haryana at Chandigarh.

                   Criminal Appeal No.300-SB of 2000.

                   Date of decision:3-3-2009.

Om Parkash Sharma.

                                                ...Appellant.

            Versus

State of Punjab.

                                                ...Respondent.

            ...

Coram:      Hon'ble Mr. Justice K. C. Puri.

            ...

Present:    Mr.Puneet Jindal Advocate for the appellant.

            Mr. K. S. Pannu, AAG, Punjab.

            ...

K. C. Puri, J.

Judgment.

This is a Criminal Appeal and has been directed against

the judgment dated 13.3.2000 passed by Shri Gurdev Singh,

Special Judge, Jalandhar, convicting the appellant under Section 7

read with Section 13(1)(d) of the Prevention of Corruption Act,

1988 ( in short the Act) and vide order of same date, was sentenced
Criminal Appeal No.300-SB of 2000.

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to undergo rigorous imprisonment for a period of one year and to

pay a fine of Rs.5,000/- and in default thereof, to further undergo

rigorous imprisonment for a period of four months.

The prosecution story, in brief, is that on 16.8.1997,

Harish Kumar, DSP received information from reliable source that

the accused, who was employed as Junior Engineer in the Fisheries

Department, Jalandhar went to village Jajja Khurd in connection

with taking measurements of the Fish Pond of Kulwinder Kaur and

for getting a subsidy of Rs.20,000/- for Kulwinder Kaur and her

son Bhawan Singh, demanded a sum of Rs.6,000/- as bribe. The

said bribe amount of Rs.6,000/- was given to him on his demand

on 5.10.1995 by Bhawan Singh and Pal Singh. On the basis of said

information, the DSP sent his ruqqa Exhibit PE to the Police

Station on the basis of which formal FIR, Exhibit PE/1 was

recorded against the accused under Sections 7, 13(1)(d) and 13(2)

of the Act.

During investigation, it transpired that Kulwinder Kaur

had land in village Jajja Khurd for establishing a Fish Farm in two

killas of her land. She applied for a loan to the Land mortgage

Bank, Goraya. On 28.9.1995, she applied to the Chief Executive

Officer, Fishery Department, Jalandhar for obtaining subsidy vide
Criminal Appeal No.300-SB of 2000.

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application, Exhibit PD. In the same month, the accused visited the

land for checking the Fish Pond and taking measurements thereof.

After taking the measurements, he told her in the presence of her

son that they would be paid Rs.20,000/- as subsidy and for getting

the same sanctioned, demanded a sum of Rs.6,000/-. She withdrew

a sum of Rs.5,000/- from her account No.25876/38 in Punjab

National Bank Goraya and obtained Rs.1,000/- as loan from Pal

Singh. She handed over a sum of Rs.6,000/- to her son Bhawan

Singh and that amount was paid by him on 5.10.1995 to the

accused in his office where he had gone along with Pal Singh. The

said amount was paid by them to the accused on his demand.

Subsequently, Kulwinder Kaur came to know that she was not

required to pay any such amount for obtaining subsidy. Then, she

made a complaint against the accused to the Vigilance Bureau

Department, Chandigarh.

After the completion of investigation, the accused was

challaned.

The accused was charge-sheeted accordingly to which

he pleaded not guilty and claimed trial.

In order to prove its case, the prosecution examined

PW-1 Nanthan Lal, Senior Assistant, PW-2 Kulwinder Kaur, PW-3
Criminal Appeal No.300-SB of 2000.

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Bhawan Singh, PW-4 Vidya Sagar, Chief Executive Officer, PW-5

Pal Singh and PW-6 Harish Kumar, SP.

After the close of prosecution evidence, the accused

was examined under Section 313 Cr.P.C. He denied all the

incriminating circumstances appearing in evidence against him. He

stated that he was working as J.E in the Fishery Department and

the entire State of Punjab was his working field. In that connection,

he was neither the recommending or administrative authority to

sanction/recommend the loans. He was only to submit

measurements reports wherever Fish Ponds were constructed and

on the basis of those measurement reports, the

sanctioning/administratrative authority sanctioned a loan @

Rs.1,000/- per Kanal. Kulwinder Kaur was not known to him

personally. The case made against him is false and has been

prompted by some of his colleagues named Nanthan Lal and

Makhan Singh, driver. Nanthan Lal has demanded some money

from his pay or T.A. Bills which he never paid whereas Makhan

Singh driver was departmentally dealt with on a complaint for

stealing petrol. Both of them were inimical towards him.They have

been giving applications against him directly or indirectly in order

to harass him. His services have been appreciated by the
Criminal Appeal No.300-SB of 2000.

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department.

When called upon to enter his defence, the accused

produced DW-1 Raj Kumar, Chief Executive Officer, DW-2

Nirmal Singh, Senior Fishery Officer and DW-3 M.C.Aggarwal,

Assistant Director.

After the conclusion of trial, the accused was convicted

and sentenced, as noticed in the earlier part of the judgment.

The learned counsel for the appellant has submitted that

according to the prosecution, the amount of bribe is stated to have

been paid on 5.10.1995. The FIR, in question, was recorded after

about two years of the occurrence. The motive, for the occurrence,

was stated to be regarding payment of subsidy for setting up a

Fishery Pond. The appellant was simply working as a Junior

Engineer and his duty was only to make measurements of the

Fishery Pond. He was neither the sanctioning authority nor

disbursing authority and as such there was no question of payment

of bribe to him.

It is further contended that two enquiries were

conducted, one by the department and the other by he Public

Grievance Officer. In both those enquiries, the allegations of

payment of Rs.6,000/- as illegal gratification were held to be not
Criminal Appeal No.300-SB of 2000.

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proved. The complainant has kept quiet for more than six months

in making complaints for the first time. Her complaints were duly

investigated by the department and the Public Grievance Officer

and they found the allegations to be false. In spite of that, the

learned trial Court has convicted the appellant on flimsy grounds.

The learned counsel for the appellant has further

contended that sanction for the prosecution under Section 19 of the

Act is not merely a formality. The prosecution is required to prove

that the competent authority has duly applied its mind before

granting sanction for the prosecution. The immunity of the public

servant from prosecution has been incorporated keeping in view

his duty. Unless, the competent authority applies its mind, there

cannot be valid sanction. In the present case, there is nothing on

the file that enquiries Exhibits DA and DB, proved on the file were

put up before the competent authority. So, in these circumstances,

there cannot be valid sanction.

The learned counsel for the appellant has further

contended that to prove the ingredients of offence under Sections 7

and 13 of the Act, the prosecution is required to prove the factum

of demand, acceptance and recovery of illegal gratification. It is

contended that it is not the case of the prosecution that illegal
Criminal Appeal No.300-SB of 2000.

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gratification was recovered from the accused as it is not a case of

trap. The prosecution has utterly failed to prove the demand and

acceptance of illegal gratification. In the present case, PW-2

Kulwinder Kaur has stated that illegal gratification of Rs.6,000/-

was demanded by the accused in the office. In the cross-

examination, she has stated that she was also present at the time of

payment of illegal gratification. However, according to the

prosecution case, Rs.6,000/- were paid by Bhawan Singh in the

presence of Pal Singh, PW-5. Bhawan Singh is the son of the

complainant. Pal Singh is a criminal type of person and he was

produced in the Court in the hand-cuff on the date of recording of

his testimony. The appellant has brought on the file the glaring

discrepancy inter-se between the testimony of PW-2 Kulwinder

Kaur, PW-3 Bhawan Singh and PW-5 Pal Singh. The learned trial

Court has ignored those discrepancies regarding demand and

acceptance on the ground that these are minor discrepancies.

It is further submitted that according to PW-2

Kulwinder Kaur, Om Parkash, JE and Shri Vidya Sagar, Chief

Executive Officer, came to the village on 29.9.1995, for making

measurements. PW-4 Vidya Sagar, Chief Executive Officer has

categorically stated that no complaint was brought to his notice
Criminal Appeal No.300-SB of 2000.

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that any amount of illegal gratification was demanded by the

accused at any occasion. It is further contended that from the

record, it is revealed that the work of the complainant was done

smoothly. The accused has sent the completion certificate on

28.9.1995. So, there was no occasion for him to demand or accept

illegal gratification on 5.10.1995. The only job attributed to the

accused was regarding measurements which have been made by

him on 28.9.1995. It is clear from the back side of document,

Exhibit PA, produced by the prosecution. Fishery Extension

Officer, has sent the case recommending subsidy of Rs.18,000/- on

11.10.1995 and ultimately the Chief Executive Officer has

sanctioned subsidy of Rs.18,000/- to the appellant on 17.10.1995.

The draft was prepared on 19.10.1995 and credited to the account

of Kulwinder Kaur on 26.10.1995 as is clear from Exhibits PB and

PC, produced by the prosecution itself.

It is further contended that DSP has mentioned in the

FIR that from the reliable source it has come to his notice that

Rs.6,000/- were paid as illegal gratification to the accused. The

FIR is not based on the complaint of Kulwinder Kaur. The FIR was

registered on the same day. It is mentioned in the FIR that demand

for illegal gratification was made in the month of September,1995.

Criminal Appeal No.300-SB of 2000.

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No specific date has been given. It is not mentioned in the FIR as

to what were the sources of the DSP for acquiring the knowledge

of demand and acceptance of illegal gratification. So, it is

contended that the prosecution has utterly failed to prove its case.

The learned counsel for the appellant has relied upon

the following authorities:-

1. Mansukhlal Vithaldas Chauhan v. State of

Gujarat, AIR 1997 SC 3400.

2. State of T.N.Versus M.M.Rajendran, (1998) 9

Supreme Court Cases 268.

3. State of Karnataka v. Ameer Jan., AIR 2008 SC

108.

4. State of Karnataka through CBI Versus

M.K.Vijay Lakshmi, (2005) 8 Supreme Court Cases

370

5. K.Radhal v. C.B.I, Cochin Unit, AIR 2008 SC

111.

The learned counsel for the appellant has further

contended that Kulwinder Kaur has stated that the accused has not

deposited the subsidy cheque till bribe money was paid to him.

According to the record, subsidy cheque was deposited in the
Criminal Appeal No.300-SB of 2000.

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account of Kulwinder Kaur on 26.10.1995 whereas according to

the prosecution, the amount of Rs.6,000/- was paid on 5.10.1995.

So, the prosecution has failed to reconcile the fact when the

amount of illegal gratification was paid. The documentary

evidence produced by the prosecution belies the testimony of

Kulwinder Kaur.

Learned State counsel has supported the judgment of

the trial Court.

I have given my thoughtful consideration to the rival

submissions made by both sides and have gone through the record

of the case.

Section 19 of the Act has been enacted to give

protection to the public servants against unwarranted and uncalled

for complaints. The very purpose of enacting the said provision of

law is that a public servant should not be harassed by unwarranted

and uncalled for elements while discharging his duties. Generally,

a public servant is involved for the offence under the Act by

conducting a raid or in respect of illegal gratification or in respect

of disproportionate assets. In the case of a raid, there is full proof

evidence as Phenol-phthalein Powder is applied on the notes. The

complainant and the shadow witness visit the accused and that the
Criminal Appeal No.300-SB of 2000.

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accused accepts illegal gratification on demand and thereafter the

hand wash or pocket wash of the Government servant is conducted

and in case the same proves positive, in that case, no scope is left

regarding the involvement of the accused. In those cases also, the

Courts insist on direct proof of demand,acceptance and recovery of

illegal gratification. In the case of disproportionate assets, the

income of the accused during the check period is taken into

account and then compared with the expenditure and in case the

expenditure is more, in that case he is found guilty of offence

under the Act. That case is also to be proved according to the

mathematical calculations and there is no error in that eventuality.

So far as the present case is concerned, it hinges on the

oral testimony of three witnesses. No doubt, the testimony of

witnesses should not ordinarily be discarded but when there is a

scope of creating doubt in the prosecution version, in that case, the

Court should be slow in convicting the accused under Sections 7

and 13 of the Act. If there are allegations of corruption against a

Government servant, the same amounts to civil death of that

Government servant. On that count, Section 19 of the Act has been

enacted to give protection to the Government servant. In the

present case, illegal gratification is alleged to have been paid on
Criminal Appeal No.300-SB of 2000.

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5.10.1995 but the case has been registered in August, 1997 and

that, too, on the basis of secret information. The complainant made

a complaint against the accused after about six months regarding

which one enquiry was conduced by the department and the other

by Public Grievance Officer and the enquiry reports have been

proved on the file as Exhibits DA and DB. In both these enquiries,

the accused has been exonerated. In the present case, the

Investigating Agency should have taken into account those enquiry

reports. The grant of sanction for the prosecution is not merely a

formality. There is nothing on the file to prove the fact that the

above-said enquiries were taken into account by the competent

authority before granting sanction for the prosecution of the

accused. Authorities in cases Manshukhlal Vithaldas Chauhan,

M.M. Rajendran, Ameer Jan. and M.K.Vijay Lakshmi (supra)

relate to grant of sanction against public servants. In all these

authorities, it has held that valid sanction could only be considered

if it is brought on the file that the sanctioning authority has applied

its mind. Ignoring the previous enquiries, Exhibits DA and DB,

would lead to the conclusion that the sanctioning authority has not

applied its mind properly.

In a bribery case, demand and acceptance of illegal
Criminal Appeal No.300-SB of 2000.

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gratification has to be proved beyond reasonable doubt. From the

perusal of the judgment of the trial Court, it is revealed that

discrepancies regarding demand and acceptance of illegal

gratification were brought to the notice of the trial Court but the

same have been ignored on the ground that the same are minor in

nature However, glaring discrepancies go to the root of the case.

According to Kulwinder Kaur, complainant, she was

also present when illegal gratification was alleged to have been

paid to the accused but according to PW-3 Bhawan Singh, his son

and PW-5 Pal Singh, the complainant was not present. This is not a

minor discrepancy. The testimony of PW-2 Kulwinder Kaur in

respect of payment of illegal gratification on 5.10.1995 is

contradicted by her own testimony. During cross-examination, she

stated that the accused had not handed over the cheque till the

payment of illegal gratification was made by her. According to the

record produced by the prosecution itself, the cheque was credited

in the account of the complainant on 26.10.1995 whereas it is the

specific case of all the prosecution witnesses that illegal

gratification was paid on 5.10.1995. Kulwinder Kaur, PW-2 has

stated that on 28.9.1995, Om Parkash, JE and Vidya Sgar, Chief

Executive Officer came for the measurements of the Fish Pond.

Criminal Appeal No.300-SB of 2000.

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PW-4 Vidya Sagar, Chief Executive Officer,has categorically

stated that the accused made measurements of the pond in his

presence. He has further stated that no complaint of demand of

illegal gratification of any type was made to him on that day.

According to PW-2 Kulwinder Kaur, illegal gratification of

Rs.6,000/- was paid 10 days prior to 5.10.1995. So, according to

this calculation, the alleged demand of Rs.6,000/- was made prior

to 28.9.1995. So, in case there was any demand of illegal

gratification, Kulwinder Kaur and other PWs. must have narrated

this fact to Vidya Sagar, being officer of the Fishery Department

on 28.9.1995. He is a witness for the prosecution itself. So, this

fact goes a long way in deciding the case of the accused. Bhawan

Singh being son of Kulwinder Kaur is interested in the success of

the case and Pal Singh was produced in custody. No doubt, the

testimony of a convicted person cannot be discarded on the ground

of his conviction but he seems to be interested being friend of

Bhawan Singh. Moreover, no positive explanation has been given

by the prosecution for not registering the case for about 1 year and

10 months of the alleged giving of bribe.

Although the enquiry reports, Exhibits DA and DB, one

by the department and the other by the District Vigilance Officer
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itself are not sufficient to throw the prosecution story but when

there is such discrepancy regarding the demand and acceptance and

there is defective sanction, in that case, conviction cannot be

maintained. The delay in lodging the FIR also assumes importance

in these circumstances.

Therefore, keeping in view above discussion, the appeal

is accepted. The impugned judgment of trial Court stands set aside

and the accused stands acquitted by giving him benefit of doubt.

A copy of this judgment be sent to the trial Court for

strict compliance.


March 3rd ,2009.                              ( K. C. Puri )
Jaggi                                              Judge