{"id":200788,"date":"2009-03-26T00:00:00","date_gmt":"2009-03-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/subhash-chander-vs-the-state-of-punjab-on-26-march-2009"},"modified":"2017-11-17T01:49:51","modified_gmt":"2017-11-16T20:19:51","slug":"subhash-chander-vs-the-state-of-punjab-on-26-march-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/subhash-chander-vs-the-state-of-punjab-on-26-march-2009","title":{"rendered":"Subhash Chander vs The State Of Punjab on 26 March, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Subhash Chander vs The State Of Punjab on 26 March, 2009<\/div>\n
           Criminal Appeal No.529-SB of 2000.\n                        -1-\n\nIn the High Court of Punjab and Haryana at Chandigarh.\n\n                         Criminal Appeal No.529-SB of 2000.\n\n                         Date of decision:26-3-2009\n\nSubhash Chander.\n\n                                                ...Appellant.\n\n            Versus\n\nThe State of Punjab.\n\n                                                ...Respondent.\n\n            ...\n\nCoram:      Hon'ble Mr. Justice K. C. Puri.\n\n            ...\n\nPresent:    Mr. Bipan Ghai, Senior Advocate with Mr. Vijay\n            Sharma, Advocate for the appellant.\n\n            Ms.Ravinder Kaur Nihalsinghwala, Senior DAG,\n\nPunjab.\n\n            ...\n\nK. C. Puri, J.\n<\/pre>\n
Judgment.\n<\/p>\n
            Under challenge, in this appeal, is the judgment\/order<\/p>\n
dated 6.6.2000 passed by Shri Mohinder Pal, the then Special<\/p>\n
Judge, Ropar whereby the accused has been convicted and<\/p>\n
sentenced to undergo rigorous imprisonment for a period of six
\n           Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                       -2-<\/span><\/p>\n
months and to pay a fine of Rs.1,000\/- and in default of payment of<\/p>\n
fine, to undergo rigorous imprisonment for one month under<\/p>\n
Section 7 of the Prevention of Corruption Act, 1988 ( in short the<\/p>\n
Act). He was also sentenced to undergo rigorous imprisonment for<\/p>\n
a period of two years and to pay a fine of Rs.4,000\/- and in default<\/p>\n
of payment of fine,to undergo rigorous imprisonment for a period<\/p>\n
of six months under Section 13(2) of the Act. However, both the<\/p>\n
sentences were ordered to run concurrently.\n<\/p>\n
           The prosecution story lie in a narrow compass as<\/p>\n
under:-\n<\/p>\n
           Complainant Gurmeet Singh was working as a<\/p>\n
Conductor in the Punjab Roadways, Nangal Depot, Ropar. In<\/p>\n
April, 1996, his bus was checked by the checking staff of the<\/p>\n
Roadways. During his checking, it was found that the complainant<\/p>\n
had not issued tickets to some of the passengers and accordingly he<\/p>\n
was fined to the tune of Rs.1,000\/- at the spot by the checking<\/p>\n
staff. The checking staff also lodged report to the higher<\/p>\n
authorities. Because of that complainant was suspended and an<\/p>\n
enquiry was initiated. Complainant Gurmeet Singh requested to the<\/p>\n
higher authorities that since he was fined by the checking staff,<\/p>\n
enquiry on the same cause of action could not be initiated as a
\n            Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                        -3-<\/span><\/p>\n
Government employee could not be punished twice for the same<\/p>\n
offence. Sukhdev Singh, Law Officer, also gave opinion in favour<\/p>\n
of the complainant. However, the General Manager, Nangal<\/p>\n
entrusted the enquiry of the complainant to Subhash Chander<\/p>\n
accused who was working as Works Manager at Nangal at the<\/p>\n
relevant time. The complainant also requested the Enquiry Officer<\/p>\n
to drop the proceedings but he did not agree.\n<\/p>\n
           On 30.9.1996, the complainant went to the office of the<\/p>\n
accused with a written request that on the basis of the opinion of<\/p>\n
Law Officer, enquiry against him be stopped. The accused<\/p>\n
demanded Rs.3,000\/- from the complainant as bribe to drop the<\/p>\n
proceedings. The complainant made a false promise with the<\/p>\n
accused regarding payment of Rs.3,000\/- and left his office.<\/p>\n
           On 1.10.1996, the complainant along with Tarsem<\/p>\n
Singh, shadow witness, who has since died, came to the office of<\/p>\n
DSP Vigilance, Ropar and got recorded his statement Exhibit PK<\/p>\n
which was read over to him and was signed by him. The DSP<\/p>\n
Vigilance made his endorsement, Exhibit PK\/1 and formal FIR,<\/p>\n
Exhibit PK\/2 was recorded by Inspector Surjit Singh. The<\/p>\n
complainant produced six currency notes of the denomination of<\/p>\n
Rs.500\/-    each.    Vigilance       DSP        Sukhdev   Singh   Aulakh,
\n           Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                       -4-<\/span><\/p>\n
Investigating Officer, noted down the numbers of the tainted<\/p>\n
currency notes and applied Phenol-phthalein Powder ( in short “P”<\/p>\n
Powder) and handed over those currency notes back to<\/p>\n
complainant Gurmeet Singh after giving a demonstration. Memo,<\/p>\n
Exhibit PP was prepared. DSP asked Tarsem Singh, the<\/p>\n
accomplice of the complainant to act as a shadow witness and to<\/p>\n
give a signal to the raiding party after passing over tainted currency<\/p>\n
notes to the accused. The complainant was also directed that the<\/p>\n
currency notes were to be given to the accused on his demand. The<\/p>\n
Investigating Officer also moved application, Exhibit PA, to the<\/p>\n
SDM, Ropar on the basis of which Narinder Kumar, Naib<\/p>\n
Tehsildar was deputed to join as an official witness. After joining<\/p>\n
the witness, the raiding party left for the office of the accused for<\/p>\n
a raid. Complainant Gurmeet Singh and Tarsem Singh were sent<\/p>\n
inside the office. After few minutes, the Investigating Officer<\/p>\n
received a signal from Tarsem Singh and he along with Harinder<\/p>\n
Kumar and other members of the raiding party went inside the<\/p>\n
office of the accused. The accused was found present in the office<\/p>\n
along with Gurmeet Singh, complainant. The complainant told the<\/p>\n
Investigating Officer that the accused had taken Rs.3,000\/- as bribe<\/p>\n
from him. DSP Sukhdev Singh gave his introduction to the
\n           Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                       -5-<\/span><\/p>\n
accused. Ram Lal, General Manager was also summoned. A glass<\/p>\n
of water was arranged and washing Soda was put into the same.<\/p>\n
However, the colour of the water did not change. Then, both the<\/p>\n
hands of the accused were got dipped into the glass of water one<\/p>\n
after the other and the colour of the water turned to light pink. The<\/p>\n
water was put into a nip and was sealed with the seal of DSP<\/p>\n
bearing impression SSA and was taken into possession vide memo,<\/p>\n
Exhibit PC. The accused got recovered Rs.3,000\/- from the right<\/p>\n
side of the drawer of the table. The notes were of the denomination<\/p>\n
of Rs.500\/- each. These currency notes were handed over to PW<\/p>\n
Harinder Kumar, Executive Magistrate for comparison with memo,<\/p>\n
Exhibit PD. Their numbers tallied. Tainted currency notes,<\/p>\n
Exhibits P-2 to P-7, were also taken into possession vide memo,<\/p>\n
Exhibit PT. From the personal search of the accused, a purse<\/p>\n
containing Rs.621\/-, Identity Card, Driving Licence and other<\/p>\n
documents mentioned in memo Ex.PF were also recovered. From<\/p>\n
further search of the drawer of the table of the accused, one rough<\/p>\n
memo Exhibit PG was recovered which was taken into possession,<\/p>\n
vide memo Exhibit PF. The accused was enquired regarding the<\/p>\n
enquiry file of the complainant. The same enquiry was also made<\/p>\n
from Ram Lal, General Manager of the Depot. They told that the
\n           Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                       -6-<\/span><\/p>\n
concerned official Gurjeet Singh Stenographer was on tour and the<\/p>\n
file was in his custody and he had kept the same in the Almirah.<\/p>\n
The Investigating Officer sealed the room where Almirah was<\/p>\n
lying and memo, Exhibit PJ, regarding it was prepared. The other<\/p>\n
investigation was conducted.\n<\/p>\n
           After the completion of investigation, challan was<\/p>\n
presented against the accused in the Court.\n<\/p>\n
           The accused was charge-sheeted accordingly to which<\/p>\n
he pleaded not guilty and claimed trial.\n<\/p>\n
           In order to substantiate its case, the prosecution<\/p>\n
examined PW-1 Ram Kishan, PW-2 Head Constable Hari Singh,<\/p>\n
PW-3 Harinder Kumar, Naib Tehsildar, PW-4 Gurmeet Singh<\/p>\n
complainant, PW-5 Darshan Singh, PW-6 Bihari Lal, PW-7<\/p>\n
Gurjeet Singh, PW-8 Constable Swaran Singh and PW-9 Sukhdev<\/p>\n
Singh, Investigating Officer.\n<\/p>\n
           After the close of prosecution evidence, the accused<\/p>\n
was examined under Section 313 Cr.P.C. He denied the<\/p>\n
prosecution allegations and pleaded innocence. He pleaded that<\/p>\n
complainant Gurmeet Singh was Unionist who committed fraud for<\/p>\n
which the accused was conducting an enquiry. The complainant<\/p>\n
never wanted that his enquiry be conducted by him and due to this
\n           Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                       -7-<\/span><\/p>\n
reason, he falsely implicated him in this case. He denied his<\/p>\n
presence in the office at the time of raid.\n<\/p>\n
           In defence, the accused examined DW-1 Pritam Singh.<\/p>\n
           The accused was convicted and sentenced,as noticed in<\/p>\n
the earlier part of the judgment, after the conclusion of trial.<\/p>\n
           The learned counsel for the appellant has submitted that<\/p>\n
to prove the ingredients of offence under the Act, the prosecution<\/p>\n
is required to prove demand, acceptance and recovery of illegal<\/p>\n
gratification. It is submitted that the evidence of the prosecution<\/p>\n
does not prove the factum of demand and acceptance of illegal<\/p>\n
gratification. It is submitted that according to the complainant, the<\/p>\n
demand of bribe was not made by the accused, but, a Steno told<\/p>\n
him that the accused was demanding illegal gratification. So, the<\/p>\n
prosecution has failed to prove the factum of demand. The<\/p>\n
recovery of tainted amount has not taken place from the person of<\/p>\n
the accused. The said amount was found to be lying in the drawer.<\/p>\n
The complainant, in his cross-examination, stated that he did not<\/p>\n
remember if he had shaken hands with the accused. The case of the<\/p>\n
accused is that Gurmeet Singh had shaken his hands with him and,<\/p>\n
on that count, the hand wash does not prove the factum of recovery<\/p>\n
of tainted currency notes from the accused.\n<\/p>\n
           Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                       -8-<\/span><\/p>\n
           It is further submitted that there is no independent<\/p>\n
corroboration regarding demand and acceptance of illegal<\/p>\n
gratification. The shadow witness is a union leader whereas the<\/p>\n
complainant is a member of that union. The complainant was<\/p>\n
found guilty of embezzling Government funds by not issuing the<\/p>\n
tickets and from his cross-examination, it is crystal clear that for<\/p>\n
those acts, the complainant has been found guilty more than 12<\/p>\n
times. It is further contended that the shadow witness defended the<\/p>\n
complainant in a departmental enquiry and that fact proves that he<\/p>\n
is highly interested in the complainant. So, he cannot be said to be<\/p>\n
an independent witness.\n<\/p>\n
           It is further submitted that there was no motive for the<\/p>\n
accused to demand and accept illegal gratification. According to<\/p>\n
the case of the prosecution, the complainant has been imposed a<\/p>\n
penalty of Rs.1,000\/- at the time of raid on a bus and as such<\/p>\n
departmental action cannot continue. It is further submitted that the<\/p>\n
file remained in the custody of Steno and the complainant has<\/p>\n
moved to the General Manager, Roadways for dropping the<\/p>\n
proceedings on the ground that he cannot be penalised for the<\/p>\n
same. The accused was an Enquiry Officer appointed by the<\/p>\n
General Manager and he was nobody to stop the enquiry. There
\n           Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                       -9-<\/span><\/p>\n
was motive for the complainant to falsely implicate the accused as<\/p>\n
he wanted to put pressure upon him that he should not proceed<\/p>\n
with the enquiry. A prayer has been made for the acceptance of<\/p>\n
appeal.\n<\/p>\n
           The learned State counsel has supported the judgment<\/p>\n
of the trial Court. It is contended that the accused was a<\/p>\n
Government servant. The demand and acceptance of illegal<\/p>\n
gratification is proved by PW-4 Gurmeet Singh. Tarsem Singh,<\/p>\n
shadow witness could not be examined as he has expired. The<\/p>\n
factum of recovery of illegal gratification has been proved by<\/p>\n
PW-3 Harinder Kumar, Naib Tehsildar , PW-4 Gurmeet Singh and<\/p>\n
PW-9 Sukhdev Singh, DSP. All these witnesses have been cross-<\/p>\n
examined at length but nothing could be brought on the file to<\/p>\n
discard their sworn testimony. A prayer has been made for the<\/p>\n
dismissal of the appeal.\n<\/p>\n
           I have given my thoughtful consideration to the rival<\/p>\n
submissions made by both sides and have gone through the record<\/p>\n
of the case.\n<\/p>\n
           In this case, the star witnesses for the prosecution are<\/p>\n
PW-4 Gurmeet Singh complainant, PW-3 Harinder Kumar, Naib<\/p>\n
Tehsildar, PW-7 Gurjeet Singh and PW-9 Sukhdev Singh, DSP.\n<\/p>\n
           Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                       -10-<\/span><\/p>\n
Others are formal witnesses i.e regarding posting of the accused<\/p>\n
and sanction. The counsel for the appellant has not challenged<\/p>\n
sanction and the fact that the appellant was a Government servant<\/p>\n
at the time of raid. So, the evidence of remaining witnesses is not<\/p>\n
so material for the decision of the case.\n<\/p>\n
           To prove the demand and acceptance of illegal<\/p>\n
gratification, the prosecution has examined PW-4 Gurmeet Singh.<\/p>\n
To prove factum of hand wash and recovery of tainted money<\/p>\n
from the accused, the prosecution has relied upon the testimony of<\/p>\n
PW-3 Harinder Kumar, Naib Tehsildar, PW-4 Gurmeet Singh and<\/p>\n
PW-9 Sukhdev Singh, DSP. Now, I shall discuss the testimony of<\/p>\n
these witnesses, individually.\n<\/p>\n
           PW-4 Gurmeet Singh has supported the case of the<\/p>\n
prosecution in his examination-in-chief regarding demand and<\/p>\n
acceptance, but, in the cross-examination, this witness has created<\/p>\n
a dent in the prosecution version regarding demand and<\/p>\n
acceptance. In his cross-examination, this witness has stated that he<\/p>\n
was asked by the Steno that the accused was demanding something<\/p>\n
and he should pay to him the same. He has categorically stated that<\/p>\n
Subhash Chander accused did not demand            money from him<\/p>\n
directly earlier to the recovery. The testimony of PW-7 Gurjeet
\n           Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                       -11-<\/span><\/p>\n
Singh becomes relevant as he has stated that he was working as a<\/p>\n
Stenographer in the office of General Manager and he never<\/p>\n
demanded any money from Gurmeet Singh complainant regarding<\/p>\n
dropping the enquiry. The testimony of the complainant is that of a<\/p>\n
accomplice and sometimes the Courts insist on independent<\/p>\n
corroboration. In the present case, independent corroboration<\/p>\n
regarding demand and acceptance is lacking as the shadow witness<\/p>\n
has expired before deposing in the Court. Since the complainant<\/p>\n
has not supported the case of the prosecution regarding demand of<\/p>\n
illegal gratification so the said fact creates a doubt in the<\/p>\n
prosecution version. The benefit of not examining shadow witness<\/p>\n
cannot be taken by the prosecution. It is a settled law that where<\/p>\n
there are two views in that case, the view in favour of the accused<\/p>\n
is to be taken. Gurmeet Singh has himself admitted the fact that<\/p>\n
Tarsem Singh, shadow witness was a Trade Union Leader and he<\/p>\n
was a co-worker to assist him in the enquiry pending against him.<\/p>\n
So, naturally Tarsem Singh cannot be said to be an independent<\/p>\n
witness as he is highly interested in the complainant and has even<\/p>\n
assisted the complainant in the departmental enquiry. From the<\/p>\n
conduct of the complainant, it is revealed that he is habitual of mis-<\/p>\n
appropriating Government money as a Conductor as for 12 times,
\n           Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                       -12-<\/span><\/p>\n
he was found guilty of not issuing tickets to the passengers and<\/p>\n
mis-appropriating the amount. The request for dropping the<\/p>\n
proceedings was made to the General Manager by the complainant<\/p>\n
on the ground that he was penalized twice. Once the enquiry was<\/p>\n
entrusted to the accused\/appellant, he has no locus-standi to drop<\/p>\n
the enquiry. So, the motive for demanding illegal gratification is<\/p>\n
not proved.\n<\/p>\n
          So far as testimony of PW-3 Harinder Kumar, Naib<\/p>\n
Tehsildar and PW-9 DSP Sukhdev Singh is concerned, they have<\/p>\n
proved the hand wash. They have categorically stated that the<\/p>\n
recovery was effected from the drawer of the table and hand wash<\/p>\n
turned the solution of Sodium Carbonate pink. PW-4 Gurmeet<\/p>\n
Singh, during his cross-examination, has stated that Subhash<\/p>\n
Chander went outside to urinate and he never kept sitting in his<\/p>\n
room. So, there was ample opportunity to put the tainted currency<\/p>\n
notes in the drawer. The recovery of tainted currency notes has not<\/p>\n
been effected from the person of the accused. So, far as hand wash<\/p>\n
is concerned, the complainant has stated that he did not remember<\/p>\n
whether he had shaken hands with the accused. According to the<\/p>\n
appellant, he had shaken his hands with the accused and that fact<\/p>\n
has not been denied by the complainant. Therefore, the hand wash
\n            Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                        -13-<\/span><\/p>\n
loses its importance as there were chances that after hand wash, the<\/p>\n
solution would turn pink. Hence, in these circumstances, the non-<\/p>\n
examination of shadow witness i.e absence of independent<\/p>\n
corroboration assumes more importance. The learned trial Court<\/p>\n
has not dealt with the above aspect of the case. The testimony of<\/p>\n
the complainant is to be read as a whole. The cumulative effect is<\/p>\n
that the prosecution story has become doubtful and the accused<\/p>\n
cannot be convicted on the basis of evidence on the file.<\/p>\n
           In authority in case Mathura Dass Gupta Versus State<\/p>\n
of Haryana, 2006 (1) R.C.R (Criminal) 566, the accused was<\/p>\n
acquitted as the prosecution story regarding demand of bribe was<\/p>\n
found to be doubtful.\n<\/p>\n
           In authority in case Satbir Singh Versus State of<\/p>\n
Haryana, 2000(1) R. C. R (Criminal) 487, the accused was<\/p>\n
acquitted where independent witness was not examined and<\/p>\n
demand of illegal gratification was not proved beyond reasonable<\/p>\n
doubt.\n<\/p>\n
           In authority in case State of Haryana Versus Sudesh<\/p>\n
Kamal, 1991(2) R.C.R(Criminal) 641, a Division Bench of this<\/p>\n
Court held that if the demand of illegal gratification is doubtful, the<\/p>\n
accused is entitled to acquittal.\n<\/p>\n
           Criminal Appeal No.529-SB of 2000.\n<\/p>\n
                       -14-<\/span><\/p>\n
           Even Hon’ble Apex Court in authority in case Union of<\/p>\n
India Thr. Inspector, CBI Versus Purnandu Biswas, 2005(4)<\/p>\n
R.C.R (Criminal) 517, acquitted the accused when demand of<\/p>\n
illegal gratification was not proved. It has been further laid down<\/p>\n
in the said ruling that mere recovery of currency notes is not<\/p>\n
sufficient to convict the accused. Presumption under Section 20 of<\/p>\n
the Prevention of Corruption Act cannot be drawn, in those<\/p>\n
circumstances.\n<\/p>\n
           In view of above discussion, the appeal is accepted. The<\/p>\n
judgment of the trial Court stands set aside and the accused stands<\/p>\n
acquitted, by giving him benefit of doubt.\n<\/p>\n
           A copy of this judgment be sent to the trial Court for<\/p>\n
strict compliance.<\/p>\n
\n\nMarch 26th,2009.                       ( K. C. Puri )\nJaggi                                       Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Subhash Chander vs The State Of Punjab on 26 March, 2009 Criminal Appeal No.529-SB of 2000. -1- 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. 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