Criminal Appeal No.529-SB of 2000.
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In the High Court of Punjab and Haryana at Chandigarh.
Criminal Appeal No.529-SB of 2000.
Date of decision:26-3-2009
Subhash Chander.
...Appellant.
Versus
The State of Punjab.
...Respondent.
...
Coram: Hon'ble Mr. Justice K. C. Puri.
...
Present: Mr. Bipan Ghai, Senior Advocate with Mr. Vijay
Sharma, Advocate for the appellant.
Ms.Ravinder Kaur Nihalsinghwala, Senior DAG,
Punjab.
...
K. C. Puri, J.
Judgment.
Under challenge, in this appeal, is the judgment/order
dated 6.6.2000 passed by Shri Mohinder Pal, the then Special
Judge, Ropar whereby the accused has been convicted and
sentenced to undergo rigorous imprisonment for a period of six
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months and to pay a fine of Rs.1,000/- and in default of payment of
fine, to undergo rigorous imprisonment for one month under
Section 7 of the Prevention of Corruption Act, 1988 ( in short the
Act). He was also sentenced to undergo rigorous imprisonment for
a period of two years and to pay a fine of Rs.4,000/- and in default
of payment of fine,to undergo rigorous imprisonment for a period
of six months under Section 13(2) of the Act. However, both the
sentences were ordered to run concurrently.
The prosecution story lie in a narrow compass as
under:-
Complainant Gurmeet Singh was working as a
Conductor in the Punjab Roadways, Nangal Depot, Ropar. In
April, 1996, his bus was checked by the checking staff of the
Roadways. During his checking, it was found that the complainant
had not issued tickets to some of the passengers and accordingly he
was fined to the tune of Rs.1,000/- at the spot by the checking
staff. The checking staff also lodged report to the higher
authorities. Because of that complainant was suspended and an
enquiry was initiated. Complainant Gurmeet Singh requested to the
higher authorities that since he was fined by the checking staff,
enquiry on the same cause of action could not be initiated as a
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Government employee could not be punished twice for the same
offence. Sukhdev Singh, Law Officer, also gave opinion in favour
of the complainant. However, the General Manager, Nangal
entrusted the enquiry of the complainant to Subhash Chander
accused who was working as Works Manager at Nangal at the
relevant time. The complainant also requested the Enquiry Officer
to drop the proceedings but he did not agree.
On 30.9.1996, the complainant went to the office of the
accused with a written request that on the basis of the opinion of
Law Officer, enquiry against him be stopped. The accused
demanded Rs.3,000/- from the complainant as bribe to drop the
proceedings. The complainant made a false promise with the
accused regarding payment of Rs.3,000/- and left his office.
On 1.10.1996, the complainant along with Tarsem
Singh, shadow witness, who has since died, came to the office of
DSP Vigilance, Ropar and got recorded his statement Exhibit PK
which was read over to him and was signed by him. The DSP
Vigilance made his endorsement, Exhibit PK/1 and formal FIR,
Exhibit PK/2 was recorded by Inspector Surjit Singh. The
complainant produced six currency notes of the denomination of
Rs.500/- each. Vigilance DSP Sukhdev Singh Aulakh,
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Investigating Officer, noted down the numbers of the tainted
currency notes and applied Phenol-phthalein Powder ( in short “P”
Powder) and handed over those currency notes back to
complainant Gurmeet Singh after giving a demonstration. Memo,
Exhibit PP was prepared. DSP asked Tarsem Singh, the
accomplice of the complainant to act as a shadow witness and to
give a signal to the raiding party after passing over tainted currency
notes to the accused. The complainant was also directed that the
currency notes were to be given to the accused on his demand. The
Investigating Officer also moved application, Exhibit PA, to the
SDM, Ropar on the basis of which Narinder Kumar, Naib
Tehsildar was deputed to join as an official witness. After joining
the witness, the raiding party left for the office of the accused for
a raid. Complainant Gurmeet Singh and Tarsem Singh were sent
inside the office. After few minutes, the Investigating Officer
received a signal from Tarsem Singh and he along with Harinder
Kumar and other members of the raiding party went inside the
office of the accused. The accused was found present in the office
along with Gurmeet Singh, complainant. The complainant told the
Investigating Officer that the accused had taken Rs.3,000/- as bribe
from him. DSP Sukhdev Singh gave his introduction to the
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accused. Ram Lal, General Manager was also summoned. A glass
of water was arranged and washing Soda was put into the same.
However, the colour of the water did not change. Then, both the
hands of the accused were got dipped into the glass of water one
after the other and the colour of the water turned to light pink. The
water was put into a nip and was sealed with the seal of DSP
bearing impression SSA and was taken into possession vide memo,
Exhibit PC. The accused got recovered Rs.3,000/- from the right
side of the drawer of the table. The notes were of the denomination
of Rs.500/- each. These currency notes were handed over to PW
Harinder Kumar, Executive Magistrate for comparison with memo,
Exhibit PD. Their numbers tallied. Tainted currency notes,
Exhibits P-2 to P-7, were also taken into possession vide memo,
Exhibit PT. From the personal search of the accused, a purse
containing Rs.621/-, Identity Card, Driving Licence and other
documents mentioned in memo Ex.PF were also recovered. From
further search of the drawer of the table of the accused, one rough
memo Exhibit PG was recovered which was taken into possession,
vide memo Exhibit PF. The accused was enquired regarding the
enquiry file of the complainant. The same enquiry was also made
from Ram Lal, General Manager of the Depot. They told that the
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concerned official Gurjeet Singh Stenographer was on tour and the
file was in his custody and he had kept the same in the Almirah.
The Investigating Officer sealed the room where Almirah was
lying and memo, Exhibit PJ, regarding it was prepared. The other
investigation was conducted.
After the completion of investigation, challan was
presented against the accused in the Court.
The accused was charge-sheeted accordingly to which
he pleaded not guilty and claimed trial.
In order to substantiate its case, the prosecution
examined PW-1 Ram Kishan, PW-2 Head Constable Hari Singh,
PW-3 Harinder Kumar, Naib Tehsildar, PW-4 Gurmeet Singh
complainant, PW-5 Darshan Singh, PW-6 Bihari Lal, PW-7
Gurjeet Singh, PW-8 Constable Swaran Singh and PW-9 Sukhdev
Singh, Investigating Officer.
After the close of prosecution evidence, the accused
was examined under Section 313 Cr.P.C. He denied the
prosecution allegations and pleaded innocence. He pleaded that
complainant Gurmeet Singh was Unionist who committed fraud for
which the accused was conducting an enquiry. The complainant
never wanted that his enquiry be conducted by him and due to this
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reason, he falsely implicated him in this case. He denied his
presence in the office at the time of raid.
In defence, the accused examined DW-1 Pritam Singh.
The accused was convicted and sentenced,as noticed in
the earlier part of the judgment, after the conclusion of trial.
The learned counsel for the appellant has submitted that
to prove the ingredients of offence under the Act, the prosecution
is required to prove demand, acceptance and recovery of illegal
gratification. It is submitted that the evidence of the prosecution
does not prove the factum of demand and acceptance of illegal
gratification. It is submitted that according to the complainant, the
demand of bribe was not made by the accused, but, a Steno told
him that the accused was demanding illegal gratification. So, the
prosecution has failed to prove the factum of demand. The
recovery of tainted amount has not taken place from the person of
the accused. The said amount was found to be lying in the drawer.
The complainant, in his cross-examination, stated that he did not
remember if he had shaken hands with the accused. The case of the
accused is that Gurmeet Singh had shaken his hands with him and,
on that count, the hand wash does not prove the factum of recovery
of tainted currency notes from the accused.
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It is further submitted that there is no independent
corroboration regarding demand and acceptance of illegal
gratification. The shadow witness is a union leader whereas the
complainant is a member of that union. The complainant was
found guilty of embezzling Government funds by not issuing the
tickets and from his cross-examination, it is crystal clear that for
those acts, the complainant has been found guilty more than 12
times. It is further contended that the shadow witness defended the
complainant in a departmental enquiry and that fact proves that he
is highly interested in the complainant. So, he cannot be said to be
an independent witness.
It is further submitted that there was no motive for the
accused to demand and accept illegal gratification. According to
the case of the prosecution, the complainant has been imposed a
penalty of Rs.1,000/- at the time of raid on a bus and as such
departmental action cannot continue. It is further submitted that the
file remained in the custody of Steno and the complainant has
moved to the General Manager, Roadways for dropping the
proceedings on the ground that he cannot be penalised for the
same. The accused was an Enquiry Officer appointed by the
General Manager and he was nobody to stop the enquiry. There
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was motive for the complainant to falsely implicate the accused as
he wanted to put pressure upon him that he should not proceed
with the enquiry. A prayer has been made for the acceptance of
appeal.
The learned State counsel has supported the judgment
of the trial Court. It is contended that the accused was a
Government servant. The demand and acceptance of illegal
gratification is proved by PW-4 Gurmeet Singh. Tarsem Singh,
shadow witness could not be examined as he has expired. The
factum of recovery of illegal gratification has been proved by
PW-3 Harinder Kumar, Naib Tehsildar , PW-4 Gurmeet Singh and
PW-9 Sukhdev Singh, DSP. All these witnesses have been cross-
examined at length but nothing could be brought on the file to
discard their sworn testimony. A prayer has been made for the
dismissal of the appeal.
I have given my thoughtful consideration to the rival
submissions made by both sides and have gone through the record
of the case.
In this case, the star witnesses for the prosecution are
PW-4 Gurmeet Singh complainant, PW-3 Harinder Kumar, Naib
Tehsildar, PW-7 Gurjeet Singh and PW-9 Sukhdev Singh, DSP.
Criminal Appeal No.529-SB of 2000.
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Others are formal witnesses i.e regarding posting of the accused
and sanction. The counsel for the appellant has not challenged
sanction and the fact that the appellant was a Government servant
at the time of raid. So, the evidence of remaining witnesses is not
so material for the decision of the case.
To prove the demand and acceptance of illegal
gratification, the prosecution has examined PW-4 Gurmeet Singh.
To prove factum of hand wash and recovery of tainted money
from the accused, the prosecution has relied upon the testimony of
PW-3 Harinder Kumar, Naib Tehsildar, PW-4 Gurmeet Singh and
PW-9 Sukhdev Singh, DSP. Now, I shall discuss the testimony of
these witnesses, individually.
PW-4 Gurmeet Singh has supported the case of the
prosecution in his examination-in-chief regarding demand and
acceptance, but, in the cross-examination, this witness has created
a dent in the prosecution version regarding demand and
acceptance. In his cross-examination, this witness has stated that he
was asked by the Steno that the accused was demanding something
and he should pay to him the same. He has categorically stated that
Subhash Chander accused did not demand money from him
directly earlier to the recovery. The testimony of PW-7 Gurjeet
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Singh becomes relevant as he has stated that he was working as a
Stenographer in the office of General Manager and he never
demanded any money from Gurmeet Singh complainant regarding
dropping the enquiry. The testimony of the complainant is that of a
accomplice and sometimes the Courts insist on independent
corroboration. In the present case, independent corroboration
regarding demand and acceptance is lacking as the shadow witness
has expired before deposing in the Court. Since the complainant
has not supported the case of the prosecution regarding demand of
illegal gratification so the said fact creates a doubt in the
prosecution version. The benefit of not examining shadow witness
cannot be taken by the prosecution. It is a settled law that where
there are two views in that case, the view in favour of the accused
is to be taken. Gurmeet Singh has himself admitted the fact that
Tarsem Singh, shadow witness was a Trade Union Leader and he
was a co-worker to assist him in the enquiry pending against him.
So, naturally Tarsem Singh cannot be said to be an independent
witness as he is highly interested in the complainant and has even
assisted the complainant in the departmental enquiry. From the
conduct of the complainant, it is revealed that he is habitual of mis-
appropriating Government money as a Conductor as for 12 times,
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he was found guilty of not issuing tickets to the passengers and
mis-appropriating the amount. The request for dropping the
proceedings was made to the General Manager by the complainant
on the ground that he was penalized twice. Once the enquiry was
entrusted to the accused/appellant, he has no locus-standi to drop
the enquiry. So, the motive for demanding illegal gratification is
not proved.
So far as testimony of PW-3 Harinder Kumar, Naib
Tehsildar and PW-9 DSP Sukhdev Singh is concerned, they have
proved the hand wash. They have categorically stated that the
recovery was effected from the drawer of the table and hand wash
turned the solution of Sodium Carbonate pink. PW-4 Gurmeet
Singh, during his cross-examination, has stated that Subhash
Chander went outside to urinate and he never kept sitting in his
room. So, there was ample opportunity to put the tainted currency
notes in the drawer. The recovery of tainted currency notes has not
been effected from the person of the accused. So, far as hand wash
is concerned, the complainant has stated that he did not remember
whether he had shaken hands with the accused. According to the
appellant, he had shaken his hands with the accused and that fact
has not been denied by the complainant. Therefore, the hand wash
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loses its importance as there were chances that after hand wash, the
solution would turn pink. Hence, in these circumstances, the non-
examination of shadow witness i.e absence of independent
corroboration assumes more importance. The learned trial Court
has not dealt with the above aspect of the case. The testimony of
the complainant is to be read as a whole. The cumulative effect is
that the prosecution story has become doubtful and the accused
cannot be convicted on the basis of evidence on the file.
In authority in case Mathura Dass Gupta Versus State
of Haryana, 2006 (1) R.C.R (Criminal) 566, the accused was
acquitted as the prosecution story regarding demand of bribe was
found to be doubtful.
In authority in case Satbir Singh Versus State of
Haryana, 2000(1) R. C. R (Criminal) 487, the accused was
acquitted where independent witness was not examined and
demand of illegal gratification was not proved beyond reasonable
doubt.
In authority in case State of Haryana Versus Sudesh
Kamal, 1991(2) R.C.R(Criminal) 641, a Division Bench of this
Court held that if the demand of illegal gratification is doubtful, the
accused is entitled to acquittal.
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Even Hon’ble Apex Court in authority in case Union of
India Thr. Inspector, CBI Versus Purnandu Biswas, 2005(4)
R.C.R (Criminal) 517, acquitted the accused when demand of
illegal gratification was not proved. It has been further laid down
in the said ruling that mere recovery of currency notes is not
sufficient to convict the accused. Presumption under Section 20 of
the Prevention of Corruption Act cannot be drawn, in those
circumstances.
In view of above discussion, the appeal is accepted. The
judgment of the 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 26th,2009. ( K. C. Puri ) Jaggi Judge