Punjab-Haryana High Court
Sewa Singh vs State Of Punjab on 10 February, 2011
Author: K.C.Puri
Bench: K.C.Puri
Criminal Appeal No.68 SB of 2000 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
Criminal Appeal No.68 SB of 2000
Date of decision 10 .2.2011.
Sewa Singh
...... Appellant.
versus
State of Punjab
...... Respondent.
CORAM :- HON'BLE MR.JUSTICE K.C.PURI.
Present :- Mr. Vikas Bahl, Advocate for the appellant.
Mr. Ajay Kaushik, Advocate for the C.B.I.
Mr. Amandeep Singh Rai, AAG, Punjab.
K.C.PURI, J.
Sewa Singh appellant has directed the present appeal against the judgment and order dated 23.12.1999 passed by learned Special Judge, CBI, Patiala vide which accused/appellant has been convicted under Sections 7 and 13(i)(d) read with Section 13 (2) of the Prevention of Corruption Act, 1988 ( in short - the Act) and sentenced him to undergo rigorous imprisonment for a period of 1½ years and to pay a fine of Criminal Appeal No.68 SB of 2000 2 `.1,500/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three months under Section 7 of the Act and to undergo rigorous imprisonment for a period of one year and to pay a fine of `.1,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of two months under Section 13(i)(d) read with Section 13 (2) of the Act. Both the sentences were, however, ordered to run concurrently.
The brief facts of the prosecution case are that complainant Sukhdev Singh, Ex-army personnel retired from Army in 1978 and got re- employment in Defence Security Corps ( in short - DSC) in the year 1980 from where he was retired in February, 1998. He was due his pension and other arrears regarding which a case was pending in the office of the DDOI, being dealt with by accused Sewa Singh, posted as Senior Auditor in the DPDO's office. The complainant had been meeting him for 4/5 months, but every time the matter was put off by the accused. On 21.7.98, when the complainant approached the accused in his office with the request to clear his pension case as he was financially tight, accused Sewa Singh demanded Rs.1000/- as bribe for clearing his case. On the insistence of the complainant that he was a poor man and unable to pay that much bribe, the accused agreed to accept Rs.600/- as bribe and directed him to bring the amount on 22.7.1998, when he would clear his case and give him the cheque. The complainant after extending false promise to come with the money came back. He took Kartar Singh of his village into confidence, who too advised him to report the matter to the Vigilance Department. Accordingly on 22.7.1998, the complainant along with Kartar Singh came Criminal Appeal No.68 SB of 2000 3 to the office of the Deputy Superintendent of Police, (in short - DSP) Vigilance Bureau, Bathinda Range, Bathinda. The complainant made statement Ex.PW1/2, disclosing the above facts and also tendered Rs.600/- for laying a trap on the accused. The DSP noted down the numbers of the six hundred rupee currency notes and applied phenophthalein powder on them. The tainted notes were thereafter handed over to complainant Sukhdev Singh with a direction that the same should be given to the accused only on demand and that the complainant should not shake hands before and after handing over of the notes. The memo was attested by Sukhdev Singh complainant and PW Kartar Singh. Kartar Singh was deputed as a shadow witness to hear the conversation between the complainant and the accused and also to see the acceptance of the bribe by the accused and then gave a signal to the police party. The effect of Phenolphthalein powder was also demonstrated to the complainant and the shadow witness. DSP Vigilance appended his endorsement Ex. PW6/1 and forwarded the statement of the complainant to the police station for registration of a case under Section 7 and 13(2) of the Prevention of Corruption Act, against the accused and on the basis of which, FIR Ex.PW6/2 was registered. For the purpose of laying the trap, Trap Laying Officer, joined Parladh Bhagat from the office of the D.O. Bathinda. The complainant and the shadow witness approached the accused in his office and after the accused demanded and accepted the bribe money from the complainant, the shadow witness gave the pre-determined signal, on which the raid was conducted. The DSP gave his introduction and asked the accused about the acceptance of the bribe. Thereafter, he got arranged a Criminal Appeal No.68 SB of 2000 4 glass of clean water, in which sodium carbonate was added. Parladh Bhagat, recovery witness, was asked to dip both his hands in the solution. On his so doing, the colour of the solution did not change. Accused Sewa Singh was then asked to wash his hands in that solution one by one. After the accused so did, the solution changed into light pink colour. It was put in a clean quarter bottle and was sealed with the seal mark 'VK'. It was taken into possession vide memo attested by the complainant shadow witness and the recovery witness. On search of the office table of the accused six hundred rupee currency notes were recovered from the right upper drawer of the table. The numbers of these currency notes, on comparison, were found tallied with the numbers given in the handing over memo Ex.PW1/3. These notes, Ex.P2 to Ex.P7, were taken into possession vide memo Ex.PW2/2, attested by the witnesses. On further personal search of the accused, Rs.1320/- from his front shirt pocket, one identity card and a wrist watch were recovered, which too were taken into possession. Some papers relating to the pension case of the complainant were laying on the table of the accused. Photocopies of those documents were also taken into possession. The Investigating Officer also prepared rough site plan with correct marginal notes. On return to the police station, the case property was deposited with the MHC. The MHC sent the nip containing hand wash with sample seal to the Forensic Science Laboratory, Punjab, Chandigarh and the test report is Ex.PW6/5. Since the accused was a Central Government employee, the case was referred to the CBI.
The CBI authorities registered its own case vide RC No. 42/98 dated 31.12.98, investigation of which was handed over to Parshant Criminal Appeal No.68 SB of 2000 5 Shirvastav, Sub Inspector, CBI, Chandigarh, who after obtaining permission from the Special Judicial Magistrate, CBI, Punjab, Patiala vide order, Ex.PW/3, proceeded to investigate the case. He recorded the statements of the witnesses and also took into possession the original documents Ex. PW3/14 to Ex.PW3/25 vide seizure memo Ex.PW3/13. After completion of the investigation of the case and obtaining requisite sanction Ex.PW8/1 from the Competent Authority, challan against the accused was presented in the Court for the trial of the accused.
On appearance of the accused, copies of documents were supplied to the accused. The trial Court framed charge under Sections 7, 13 (1) (d) read with 13(2) of the Act against the accused. He pleaded not guilty to the charge and claimed trial.
In order to prove its case, prosecution examined complainant Sukhdev Singh (PW-1), Kartar Singh, shadow witness (PW-2), Dhirendera Pardap Senior Accounts Officer, Office of the DPDO, Bathinda, (PW-3), Parladh Bhagat (PW-4), Constable Gurcharan Singh (PW-5), DSP Vinod Kumar (PW-6), Parshant Shrivastav, Sub Inspector, CBI (PW-7) and S.M.Gupta, Assistant Accounts Officer (PW-8).
The accused was examined under Section 313 Cr.P.C and he admitted his posting as Senior Auditor in the office of DPDO, Bathinda. He also admitted that PW-1 complainant Sukhdev Singh had filed an application regarding payment of his pension. However, he denied if the complainant ever met him in this connection or he had ever demanded any bribe of Rs.600/- from him. He further denied to have accepted six hundred rupee currency notes from the complainant in the presence of the shadow witness and also if these were recovered from the upper right side drawer of his table as a result of search conducted by the Trap Laying Criminal Appeal No.68 SB of 2000 6 Officer. The accused has, however, admitted the recovery of various articles from his personal search. He showed no knowledge if the DPDO had provided photocopies of the documents found lying on his Table at the time of his apprehension. While pleading innocence, the accused re- iterated his denial about the demand, acceptance and recovery of the tainted currency notes as alleged by the prosecution. According to him, there was a discrepancy regarding the qualifying service period of the complainant, so the documents were returned to the Record, Defence Security Corps, Sikandrabad from where these were received back in the office of the DPDO on 30.6.1998. A call letter was issued to the complainant on 9.8.1998 at his home address vide which he was asked to bring Bank pass- book along with NBS option from etc. on 14.7.1998. He, however, did not come. On 22.7.1998, the DPDO gave the documents to the accused for preparing the calculation-sheet and other documents. At about 2.00p.m., when he went to his room after lunch, Sukhdev Singh was sitting there. On his introduction, the accused got his signature on various documents and told him to wait in the room of the DPDO telling that the accused would be sending the documents/cheque register etc. for verification and signatures of the DPDO. However, sometime thereafter Sukhdev Singh returned with the raiding party. The DSP brought out the accused and made him to sit in the jeep. He was taken to Vigilance Office, where the present case was planted on him. The accused did not opt to lead defence evidence.
The trial Court, after hearing the learned counsel for the parties, convicted and sentenced the accused vide judgment and order dated 23.12.1999, as aforesaid.
Criminal Appeal No.68 SB of 2000 7
Feeling dissatisfied with the aforesaid judgment, appellant
-accused preferred the present appeal.
I have heard learned counsel for the parties and have gone through the records of the case.
Learned counsel for the appellant has submitted that according to the prosecution in the present case, the recovery has been effected from the drawer of the table, which was not locked. The drawer of the table was assessable to all and as such in these circumstances the recovery of tainted notes has been planted upon the appellant. There are material discrepancies regarding the conveyance used by the complainant and shadow witness. According to the DSP, complainant and shadow witness travelled into rickshaw whereas according to the official witness, complainant and shadow witness have travelled with them in an official vehicle.
I have considered the said submission but do not find any force in that submission.
No doubt, the recovery of tainted currency notes has been effected from the drawer of the table but the appellant has failed to prove how the hand wash test remains positive. The solution of sodium carbonate was turned into pink in respect of hand wash of the appellant, which fact proved that the illegal gratification was accepted by the appellant initially and put into drawer. It is not mandatory that a person took bribe must put the tainted notes in his pocket. The minor discrepancies regarding use of conveyance by the DSP and official witnesses cannot be given undue weightage.
It is further submitted that it has come on the record that 7-8 Criminal Appeal No.68 SB of 2000 8 other employees of DPDO were present but none of them had been joined in the police party. Sukhdev Singh had told that money was lying in a drawer. Parlhad Bhagat, the official witness had picked up the currency notes. So far as the hand wash is concerned, it has come on the record that hand wash was conducted after the recovery of tainted currency notes. So, the hand wash looses its importance.
It is further submitted that according to the prosecution witnesses the tainted money was kept in the drawer. The appellant could not pre-judge that he has inadvertently taken the paper in his hand and in that case, the hand wash stands fully explained.
It is further submitted that according to the prosecution story only an amount of Rs.600/- was said to be given as illegal gratification. The normal practice for a prudent man would be to put the amount of Rs.600/- in his pocket and not in drawer. So, the payment of recovery is also not proved.
Learned counsel for the appellant has further submitted that demand of illegal gratification is not proved. Statement of Sukhdev Singh (PW-1) is relevant in this regard. He has stated that currency notes were wrapped in a paper. The accused inquired as to what he was offering, the complainant has further stated that he told the accused to see himself, accordingly he opened the piece of paper and on seeing the currency notes in paper, the accused inquired as to what was it. The complainant told him that Babu Ram peon has told about the demand, but the accused has stated that he never demanded. So, it is contended that demand of illegal gratification remained totally unproved. The shadow witness has stated Criminal Appeal No.68 SB of 2000 9 that Sewa Singh was sitting at a distance of 20 feet from the door. So, this witness was not able to hear the conversation and conveyed to the raiding party.
It is further contended that PW Kartar Singh (PW-2) has stated that no writing work was done in the office of DSP, however, the writing work was done in the adjoining room and when the writing was first done the DSP was sitting in his office and none was sitting in the room where the writing work was done. So, the factum of writing was maneuvered by the DSP at the instance of complainant. It is contended that if the statements of the complainant and shadow witness are read together, the factum of taking and accepting the illegal gratification is not proved.
It is further contended that recovery of tainted amount from the drawer cannot be said to be a recovery from the accused.
Learned counsel for the appellant has relied upon the following authorities in support of his submissions :-
(1) Ganapathi Sanya Naib vs. State of Karnataka 2007(4) R.C.R.(Criminal) 184 ;
(2) Anand Parkash vs. State of Haryana 2008(2) RCR (Criminal) 335 ;
(3) G. Vishnuvardhan, Assistant Public Prosecutor, Court of Judicial First Class Magistrate, Shadnagar, Mahaboobnagar District vs. State of A.P., through Inspector of Police, Anti Corruption Bureau, Hyderabad Range, Hyderabad 2003(3) Cri.C.C. 10 ; Criminal Appeal No.68 SB of 2000 10 (4) Harnek Singh vs. State of Punjab 2000(2 R. C.R.(Criminal ) 403 ;
(5) Kalu Ram vs. State of Punjab 1997(1) R.C.R.(Criminal) 259 ;
(6) Karnail Singh vs. State of Punjab 2009(1) R.C.R. (Criminal ) 403 ;
(7) Hoshiar Singh vs. State of Haryana 1995(3) R.C.R. (Criminal ) 633 ;
Lastly, the learned counsel for the appellant has submitted that the appellant has rendered 29 years of service and no disciplinary proceedings were initiated against him. The said false incident has ruined the career of the appellant. He has three children and has a paralytic attack. The reason of false implication of the accused is the frustration of the complainant for not getting his pension in due time. It is further contended that appellant has raised certain objections on 31.3.1998. So, there was no motive for the appellant to receive the bribe on 22.7.1998. Dhirendera Partap (PW-3) has categorically stated that on 22.7.1998 Sukhdev Singh came to him in the morning along with the document as per call letter dated 9.7.1998. The said papers were given to Sewa Singh appellant for calculation and payment. So, the motive for the occurrence remains unproved.
The learned State counsel on the other hand has supported the judgment and order passed by the trial Court.
I have considered the submissions but do not find any force in Criminal Appeal No.68 SB of 2000 11 the said submissions.
After the registration of case, the accused tried to won over the witnesses more particularly the complainant and the shadow witness. The facts of the present case also smelt that appellant has tried to won over those witnesses. The story of wrapping the currency notes in a paper has been concocted by the accused just to explain his hand wash. There was apparently no motive for the official witnesses and DSP or the complainant and shadow witness to falsely implicate the accused. A retired person was not spared by the accused and he demanded illegal gratification from him. The argument advanced by the learned counsel for the appellant that out of frustration, the complainant has falsely implicated the accused, cannot be believed.The objection was raised, which was removed. The DSP has categorically stated that first of all the hand wash was conducted and thereafter the tainted currency notes were recovered. There is no reason to discard his sworn testimony. In the statement made before DSP, the complainant has categorically stated that illegal gratification has been demanded by the accused. But, later on, he has tried to resile from that statement as he along with shadow witness have been won over by the accused to some extent. However, the fact remains that the complainant and the shadow witness have not altogether changed the version but tried to give some favourable answers in order to favour the accused. Shadow witness has categorically stated that he had given a requisite signal to the raiding party after receipt of illegal gratification by the accused. Mere fact that he has stated that he was about 20 feet from the place of Sewa Singh and on that account he could not hear the conversation are without any Criminal Appeal No.68 SB of 2000 12 substance. The place of writing work in the adjoining room of DSP has also been appeared to be shifted by Kartar Singh shadow witness just to help the accused. It cannot be said that the demand and acceptance of recovery of illegal gratification is not proved. The recovery from the drawer does not absolve the liability of the accused regarding receipt of illegal gratification in view of the fact of hand wash.
So far as the submission made by learned counsel for the appellant to the effect that he has rendered total twenty nine years of services without any disciplinary action and that he has to run the family and that he is a paralytic person is concerned, these considerations are immaterial for decision of the present case. It is crystal clear that once the Government employee is found to be involved in the receipt of illegal gratification, in that case, he has no sympathy of the court or of any person of any kind. He will have to face the consequences.
So far as the submission that there was no motive for the occurrence is concerned that submission is also without any substance.
Dhirendera Partap (PW-3) has categorically proved that Sukhdev Singh was summoned in connection with his pension. So, after the receipt of summon on 8.7.1998 he was naturally to respond for the same. So, this fact rather gave support to the prosecution version. Dhirendera Partap (PW-3) being co-employee will have a soft corner for the appellant and on that account he has stated that documents for calculation of pension were given to the appellant on 22.7.1998. No record of any handing over was produced by the said witness. Otherwise also, Sewa Singh after having acquired the knowledge of the fact that Sukhdev Singh has been summoned Criminal Appeal No.68 SB of 2000 13 in connection with his pension. So, he has a reason and motive for demanding the illegal gratification. However, the stand taken by the accused that out of frustration, Sukhdev Singh has arranged the raid does not seem probable.
So far as authority Ganapathi Sanya Naib's case (supra) is concerned, that authority is distinguishable. In that case, the accused demanded money from the complainant for effecting entry in the revenue record. The recovery in that case was from underneath the files. So, that authority is distinguishable.
Authority Anand Parkash's case ( supra) is distinguishable as in that case there was number of factors which way in the mind of the Court for acquitting the accused and such factors are missing in the present case.
Authority G. Vishnuvardhan, Assistant Public Prosecutor, is also distinguishable on the same ground.
Authority Harnek Singh's case (supra) is distinguishable as in that case, no official witness was joined for the purpose of conducting the raid. A copy of jamabandi for which illegal gratification was demanded was already handed over to the complainant prior to the raid. So, in these circumstances, there was no occasion for the complainant to give bribe. It has also come on record in that case that the complainant had land dispute with other persons and the accused was not acting according to his wish. So, the facts of that case are distinguishable.
Authority Kalu Ram's case (supra) is distinguishable as in that case hands of the accused were caught by the police officer and in those Criminal Appeal No.68 SB of 2000 14 circumstances hand wash was explained.
Authority Karnail Singh's case (supra) is also distinguishable as in that case complainant as well as shadow witness turned hostile. In the present case if statements of both the witnesses taken as together in that case, prosecution story stands proved. So, the above said authority is also distinguishable.
Authority Hoshiar Singh's case (supra) is distinguishable on the same ground as in that case also complainant was declared hostile.
No other point has been urged before me.
In view of the above discussion, the appeal is without any merit and the same stands dismissed.
The accused, who is on bail, shall be arrested to undergo the remaining part of his sentence.
A copy of this judgment be sent to the trial Court for strict compliance.
( K.C.PURI )
JUDGE
February 10 , 2011
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