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
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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
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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
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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
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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
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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
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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
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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.
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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
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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
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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
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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
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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.
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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