Punjab-Haryana High Court
Varinderjit Singh (Since Deceased) vs State Of Punjab on 31 January, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-986-SB of 2003 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-986-SB of 2003
Date of decision: 31.01.2011
Varinderjit Singh (Since deceased)
(Through wife Sarabjit Kaur)
........ Appellant
Versus
State of Punjab
........ Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
PRESENT: Mr. Bipan Ghai, Senior Advocate with
Mr. Deepak Garg, Advcoate, for the appellant.
Mr. Rajinder Mathur, AAG, Punjab.
JORA SINGH, J.
This is an appeal preferred by Varinderjit Singh (since deceased) to challenge the judgment of conviction and order of sentence dated 7.5.2003, rendered by the Special Judge, Jalandhar, in C.C. No. 2/95, arising out of FIR No. 91 dated 20.7.1994, registered under Section 7 read with Section 13 (2) of the Prevention of Corruption Act (hereinafter referred as 'the Act') at Police Station Division, Nakodar.
By the said judgment, he was convicted under Section 7 read with Section 13 (2) of the Act and was sentenced to undergo rigorous imprisonment for a period of one and a half year and to pay a fine of ` 1000/- and in default of payment of fine to further undergo CRA-S-986-SB of 2003 -2- rigorous imprisonment for a period of three months.
Co-accused namely Malkiat Ram, was acquitted of the charge levelled against him. Against acquittal no appeal by the State.
During pendency of appeal, appellant died and his wife Sarabjit Kaur, vide order dated 16.7.2009, was substituted to pursue the appeal.
Prosecution story, in brief, is that Baljit Singh-complainant was owning land situated in village Chak Khurd and in that land his father had constructed residential house. Electric connection was also obtained in the name of his father Mohan Singh. To instal electric motor on the hand pump, application was moved, to increase the load. For that purpose fee of ` 220/- was also deposited but Varinderjit Singh, posted as Junior Engineer, was not allowing him to instal the motor on the hand pump by saying that cable was to be changed from outside pole. On 19.7.1994, Varinderjit Singh, was requested to change the cable but to change the cable, he had demanded ` 2000/-. He (complainant) was not ready to pay illegal gratification. By making false excuse to pay illegal gratification Baljit Singh came back from the office of Varinderjit Singh. Matter was brought to the notice of Balbir Singh. Balbir Singh, told the complainant that no need to pay illegal gratification and suggested that Varinderjit Singh, Junior Engineer, be got arrested by the Vigilance Department.
On 20.7.1994, Baljit Singh alongwith Balbir Singh, had gone to the office of Vigilance Department. Story was brought the notice of Inspector Rajwant Kumar. Currency notes worth ` 2000/- of the denomination of `100/- each were produced before the Investigating CRA-S-986-SB of 2003 -3- Officer. Numbers of the currency notes were noted in the memo. Demonstration regarding change of colour was given to the complainant by the Investigating Officer. Solution was prepared in a glass of water by adding sodium carbonate. Phenolphthalein powder was applied on some paper and that paper was handed over to the complainant. Thereafter, hands of the complainant were washed into that solution then colour of water in that glass was turned into pink colour. After demonstration solution was destroyed. Phenolphthalein power was applied on the said currency notes. Baljit Singh-complainant was directed to hand over those currency notes to the accused on demand. The said currency notes were returned to Baljit Singh vide memo Ex. PE attested by the witnesses. Balbir Singh was deputed as shadow witness to accompany the complainant with a direction to hear the conversation regarding demand and give agreed signal to the raiding party.
Raiding party was constituted. Baljit Singh and Balbir Singh, were sent to the office of the accused. On demand of illegal gratification, the same was paid to the accused. Agreed signal was given to the raiding party. Accused was arrested by the police. Solution was prepared by adding sodium carbonate. Hands of the accused were got washed in the solution of Sodium Carbonate. Colour of the solution turned into pink. Solution was transferred into a nip Ex. P-1 and the nip was sealed by the Investigating Officer, with his own seal bearing impression 'RK'. Nip was taken into police possession vide memo Ex. PG, attested by the witnesses. Marked currency notes were recovered and their numbers were tallied with the numbers noted down CRA-S-986-SB of 2003 -4- in the memo. Recovered currency notes were taken into police possession vide memo Ex. PK, attested by the witnesses. Rough site plan Ex. PQ with correct marginal notes was also prepared. After sanction was accorded to launch prosecution, challan was presented in the Court.
Accused was charge-sheeted under Section 13 (2) read with Section 7 of the Act, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 Ramesh Dutt, stated that Varinderjit Singh, was serving as J.E.-II, Sub Division Shankar. Ex. PA is the copy of transfer order dated 15.12.1992.
PW-2 SI Harpal Singh, stated that on receipt of ruqa Ex. PC, he had recorded formal FIR Ex. PC/1.
PW-3 Constable Sukhdev Singh, tendered his affidavit Ex. PD.
PW-4 Gurinder Singh stated that Mohan Singh S/o Mewa Sinjgh, had deposited ` 120/- as security for enchancement of load. Application is Ex. PW-4/A. PW-5 Mohinder Pal, Retd. Employee of PSEB and PW-8 Gian Singh, Senior Assistant, in the office of Chief Engineer (Border), PSEB, Amritsar, proved different orders vide which sanction to launch prosecution against the appellant was accorded.
PW-6 HC Harbans Singh, tendered his affidavit
Ex. PW-6/A.
CRA-S-986-SB of 2003 -5-
PW-7 Baljit Singh, is the complainant and has reiterated his stand before the police.
PW-9 Kanchan Kumar, LDC, PSEB, brought the record regarding appointment of the appellant.
PW-10 Inspector Rajwant Kumar, is the Investigating Officer.
PW-11 Constable Nand Singh, stated that case property was deposited with AMHC Sukhdev Singh, incharge of the malkhana.
PW-12 Sukhchain Singh, UDC, PSEB, brought the record and stated that Ex. PQ is the copy of appointment letter of Malikat Singh. As per this letter he was initially appointed as Assistant Lineman, on 18.1.1995.
PW-13 Balbir Singh, is the shadow witness and has supported the prosecution story by saying that in his presence Varinderjit Singh, had demanded and accepted illegal gratification.
After close of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded. Accused denied all the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused was that complainant and his relatives were found stealing electricity. Appropriate action had been taken against them. Due to this reason they were inimical towards him. On the day of raid, complainant came to his office and tried to put some money in his hands. He refused to accept the same. He forcibly tried to put the money into his hands and in that process, currency notes fell on the ground, from where the same were picked up by the police and later on he was falsely implicated in this case. CRA-S-986-SB of 2003 -6-
In defence, DW-1 Balwant Singh, stated that on 20.7.1994, he had gone to the office of the accused. Balbir Singh, came to the office of PSEB and started handing over money to Varinderjit Singh, JE but he was not accepting the same. Currency notes fell on the ground. Raiding party along with Malkiat Singh, also came at the spot. Case is false.
DW-2 Harbhajan Singh, SDO, had brought the record maintained by Varinderjit Singh.
DW-3 Mukhtiar Singh, SDO, stated that as per record connection of the complainant was checked on 11.7.1994, by Varinderjit Singh.
DW-4 Gurinder Singh, Revenue Accountant, PSEB, Shankar, had brought the record pertaining to electric connection A/C No. HC 43564 in the name of Mohan Singh S/o Mewa Singh, R/o Village Chak Khurd.
DW-5 Amit Kumar, JE, brought the summoned record and stated that cable of Mohan Singh of village Chak Khurd was replaced on 28.12.1998. Regarding change of cable entry was made in the record.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and from the perusal of the evidence available on the file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellant, learned State counsel and carefully gone through the evidence available on the file.
CRA-S-986-SB of 2003 -7-
Learned defence counsel for the appellant submits that during the pendency of the appeal, appellant had died but in view of the order dated 16.7.2009, name of Smt. Sarabjit Kaur widow of Varinderjit Singh-appellant, was substituted to pursue this appeal. Learned defence counsel for the appellant argued that appellant was serving as Junior Engineer, in PSEB, but before raid connections of the complainant and his relatives were checked by the appellant and they were found stealing energy and appropriate action was taken against them. Due to this grudge appellant was got implicated in the present case. To convict the appellant prosecution was required to establish that there was demand of illegal gratification, secondly illegal gratification was accepted by the appellant and lastly, tainted currency notes were recovered but in the present case evidence is not cogent and convincing to opine that illegal gratification was demanded by the appellant. In fact the appellant was not agreeing to accept illegal gratification. Complainant was forcibly handing over the currency notes and the same fell on the ground. Appellant was apprehended by the raiding party. False case was got registered due to previous enmity.
Learned State counsel argued that appellant was serving as Junior Engineer in Punjab State Electricity Board. Application was moved by the complainant for enhancement of load. Fee was deposited but appellant was demanding illegal gratification to change the cable. No evidence on the file that earlier to the present occurrence complainant or his relatives were apprehended while stealing energy but DW-3 Mukhtiar Singh, stated that there was a checking of electric connection of the complainant on 11.7.1994, but he was not found CRA-S-986-SB of 2003 -8- stealing the energy. When complainant was not found stealing energy then he had no enmity with the appellant. To change the cable illegal gratification was demanded. Acceptance of illegal gratification in the presence of shadow witness who was not related to the complainant. Recovery of tainted currency notes is very much clear in view of the statements of the complainant, shadow witness and the Investigating Officer.
First submission of the learned defence counsel for the appellant was that before the present occurrence electric connections of the complainant and his relatives were checked by the appellant and they were found stealing energy. Appropriate action was taken against them and due to this reason complainant party was inimical towards the appellant and he was got implicated falsely in this case. After going through the file, I am of the opinion that this submission of the learned defence counsel for the appellant is not correct one. Electric connection was in the name of Mohan Singh S/o Mewa Singh, father of the complainant. Application was moved for enhancement of the load to install electric motor on the hand-pump. Mukhtiar Singh, SDO, appeared as DW-3 and in examination-in-chief, stated that on 11.7.1994, load of the complainant was checked by the appellant but he had not stated a word that complainant was found stealing electricity. In cross-examination admitted that after checking no defect was noticed. No record that connection of any of the relation of the complainant was checked by the appellant and he was found stealing energy. When the complainant or his relatives were not found stealing energy before 20.7.1994, then there was no idea to falsely implicate the appellant. CRA-S-986-SB of 2003 -9-
Next submission of the learned defence counsel for the appellant is that on the day of occurrence complainant came to the office of the appellant and tried to hand over the currency notes. Appellant was not agreeing to accept the payment then currency notes fell on the ground from where the police had picked up those currency notes and appellant was falsely implicated due to previous enmity. DW- 1 Balwant Singh, admitted that he was present in the office of the appellant when the complainant party came and tried to hand over currency notes but he was not agreeing to accept the same. So one thing is clear that on the day of occurrence complainant had gone to the office of the appellant. This fact is also an admitted one that tainted currency notes were recovered from the appellant by the raiding party. Now the question is whether the appellant had demanded illegal gratification and as per demand payment was made by the complainant and the same was accepted? Balbir Singh, was the shadow witness. He was not related to the complainant. He had no enmity with the appellant. So no reason to disbelieve the version of Balbir Singh. Suggestion to the complainant was given that RA was also present. RA fails to appear in Court to state that there was no demand of illegal gratification or there was no recovery. Evidence on file rather shows that application was moved to enhance load. Fee was deposited but to change the cable appellant was demanding illegal gratification. Defence version of the appellant is that with the deposit of fee load stands increased automatically but no rule was cited that with the deposit of fee load stands increased automatically. DW-5 Amit Kumar, JE, stated that as per record cable of Mohan Singh, was replaced on CRA-S-986-SB of 2003 -10- 28.12.1998. No provision of Electricity Sales Manual, was cited that once application for enhancement of load is moved and fee is deposited then there is no need to change the cable and with the deposit of fee application stands accepted automatically with effect from the date of presentation of the application. If the complainant party tried to hand over the currency notes forcibly then appellant should have sent complaints to different authorities but till today no complaint to any authority. Employees of Punjab State Electriciy Board, were also present at the time of raid but no one appeared in defence to state that complainant party forcibly tried to hand over the marked currency notes to the appellant and there was no demand of illegal gratification. Before raid, application was moved to enhance the load. On 19.7.1994, complainant had met the appellant with a request to change the cable but to change the cable illegal gratification was demanded. On 20.7.1994, illegal gratification was accepted in the presence of Balbir Singh. Marked currency notes were recovered from the appellant. Hand wash of the appellant shows that payment was recovered from the appellant. Minor discrepancies in the statements of PWs but discrepancies are not material one rather occurred with the passage of time. When there was no previous enmity then there was no reason to disbelieve the complainant, shadow witness and the recovery witnesses. If as per defence version complainant tried to hand over the currency notes forcibly to the appellant then there was no idea of recovery of ` 1000/- from Malkiat Ram, who was acquitted by the trial Court. He was acquitted by the trial Court because there was no demand of illegal gratification. No case of the appellant that half of the CRA-S-986-SB of 2003 -11- payment was handed over to Malkiat Ram, forcibly. Defence version of the appellant is that complainant party tried to hand over the currency notes forcibly but he was not agreeing to accept the same and in that process currency notes fell on the floor. Recovery of ` 1000/- from the appellant and ` 1000/- from Malkiat Ram shows that defence version is not correct one. In fact entire payment was accepted by the appellant and from that payment ` 1000/- was handed over to Malkiat Ram.
Next submission of the learned defence counsel for the appellant was that during the pendency of appeal, the appellant had died and in case the deceased is acquitted then his widow is to get the retiral benefits. But this submission of the learned defence counsel for the appellant is not correct one. If the Court is of the opinion that prosecution story is genuine one then accused is not to be acquitted. With the death of the appellant there is no reason to record acquittal, in view of the fact that widow of the appellant is to get retiral benefits.
No other submission was put forward.
In view of all discussed above, I am of the opinion that evidence on file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is upheld.
For the reasons recorded above, appeal without merits is dismissed.
January 31, 2011 ( JORA SINGH ) rishu JUDGE