Punjab-Haryana High Court
Hussan Lal Son Of Kala Ram Son Of Batana ... vs State Of Punjab on 15 April, 2009
Criminal Appeal No. 419-SB of 1991 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 419-SB of 1991
Date of Decision: 15.04.2009
Hussan Lal son of Kala Ram son of Batana Ram, aged 35
years, Inspector, Cooperative Societies, resident of Village
Paddi Khushi, District Hoshiarpur.
... Appellant
Versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Mr. Raj Kumar Gupta, Advocate,
for the appellant.
Mr. Jaspreet Singh, Assistant Advocate General,
Punjab, for the respondent - State.
SHAM SUNDER, J.
This appeal is directed, against the judgement of conviction, and the order of sentence dated 25.10.91, rendered by the Court of Special Judge, Ferozepur, vide which, it convicted the accused (now appellant), under Section 13(2) of the Prevention of Corruption Act, 1988, and sentenced him, to undergo rigorous imprisonment for a period of one year, and to pay a fine of Rs. 1,000/-, in default thereof, to further undergo rigorous imprisonment for a period of three months. Criminal Appeal No. 419-SB of 1991 2
2. The facts, in brief, are that one Jagtar Singh, resident of Jandwala Kharta, was Secretary of Jandwala Kharta Cooperative Society w.e.f. 01.01.89. Earlier, he was Salesman of the said Society. He was not paid the wages from 01.11.87 onwards. The Society passed a resolution, regarding his wages on 28.03.89. On the basis of the resolution, wages were to be paid to him, after his attendance report was verified, by the Inspector, Incharge of the Society. The accused was holding additional charge of the Society. As such, he was the person, who was to verify and attest the attendance report of Jagtar Singh.
3. On 04.05.89, Jagtar Singh, approached the accused, with a copy of the resolution dated 28.03.89, at his office, situated at Focal Point, Ghallu. He requested him to verify his attendance report. The accused refused to verify the report, and demanded a sum of Rs. 2,000/-, as gratification, other than legal remuneration, for this purpose. Jagtar Singh, told the accused that he was a poor person and could not pay this amount. On further request, made by Jagtar Singh, the accused agreed to verify the report of his attendance, after obtaining a sum of Rs. 1,000/-, as gratification, other than legal remuneration. Since Jagtar Singh, was not ready to pay the gratification, other than legal remuneration, to the accused, he made an excuse, that the amount was not readily available with him. The accused told Jagtar Singh, to contact him, in the office of Marketing Societies, Abohar, with attestation of attendance report, from the Sub Inspector of the area, and Criminal Appeal No. 419-SB of 1991 3 he should also bring a sum of Rs. 1,000/-, on that day, for payment to him, as gratification, other than legal remuneration, for getting the attendance report verified from him. Jagtar Singh, then approached the Vigilance Department, and narrated the aforesaid facts. His statement was recorded by Tara Chand Sharma, Inspector, on 05.05.89. Jagtar Singh, then produced ten currency notes of Rs. 100/- each, before Inspector Tara Chand Sharma. The numbers of the same, were noted down by Tara Chand Sharma, in a separate memo. Phenol-pathelein powder was applied to the aforesaid currency notes. Thereafter, the aforesaid tainted currency notes, were handed over to Jagtar Singh, with a direction to hand over the same to the accused, on his demand. A memo regarding entrustment of the tainted currency notes to Jagtar Singh, was prepared. Babu Singh, Inspector Vigilance, was appointed as a shadow witness, to watch and listen the exchange of talk between Jagtar Singh, and the accused, and watch the payment of amount of Rs. 1,000/- by the former to the latter as gratification, other than legal remuneration. He was also directed that after the payment of the aforesaid amount, was made by Jagtar Singh, to the accused, the requisite signal should be given by him. Thereafter Tara Chand Sharma, Inspector, organized a raiding party, headed by him, and consisting of Jagtar Singh, complainant, Babu Singh, shadow witness, and other Police officials. Thereafter, the Vigilance party, proceeded towards the Marketing Societies office, Abohar. The party then went to the office of Sewerage Board and Ashok Kumar, Junior Engineer, was Criminal Appeal No. 419-SB of 1991 4 associated with it. The statement of Jagtar Singh, was sent through Constable Harbhajan Singh, for the registration of case, on the basis whereof, the case was registered. After a sum of Rs. 1 ,000/-, on demand was paid by Jagtar Singh, to the accused, as gratification, other than legal remuneration, and the requisite signal was given by Babu Singh, shadow witness, the remaining members of the raiding party apprehended the accused. Inspector Tara Chand Sharma, disclosed his identity to the accused, as Vigilance Inspector. A glass containing water was arranged. Sodium-bicarbonate was mixed therein, as a result whereof, a solution was prepared. In the first instance, Ashok Kumar, aforesaid, prosecution witness, was made to dip his hands, in the said solution. The colour of the solution did not change. Thereafter, the hands of the accused were got dipped, in the said solution, as a result whereof, the colour thereof, turned into light pinkish. The solution was transferred, into a nip P1, which was sealed with the seal bearing impression "TCS' and the signatory chit of Ashok Kumar, was affixed thereon. It was taken into possession, vide memo exhibit PB. Tara Chand Sharma, Inspector, offered himself, for search to the accused. Thereafter, he searched the person of the accused. Tainted currency notes of Rs. 1,000/-, from the right pocket of the pant, worn by the accused, were recovered. The numbers of the tainted currency notes were compared with the numbers, already noted in memo PF, and the same tallied. The tainted currency notes P3 to P12, were taken into possession, vide memo PJ, attested by the witnesses. On further search Criminal Appeal No. 419-SB of 1991 5 of the person of the accused, Rs. 2896/-, a purse, and a wrist watch were recovered. The same were taken into possession, vide memo exhibit PK. Thereafter, the accused, was made to put off his pant. The right side pocket of the pant, worn by the accused, was reversed. It was dipped into a freshly prepared solution, in the aforesaid manner, as a result whereof, the colour thereof, changed into light pinkish. The solution was transferred, into a nip exhibit P2, which was sealed with the seal bearing impression 'TCS'. The signatory chit of Ashok Kumar, was also affixed. The pant was converted into a parcel and sealed with the seal bearing impression 'TCS'. The signatory chit of Ashok Kumar, was also affixed. The sealed parcel of the pant exhibit P13, was taken into possession, vide memo exhibit PH. On search of Jagtar Singh, nothing was recovered. Memo PL was prepared. Copy of the resolution PN and attendance certificate PQ, were taken into possession, vide memo PM, from the table of the accused. The rough site plan PR, was prepared, with correct marginal notes. The accused was arrested. The statements of the witnesses were recorded. After the completion of investigation, and on receipt of sanction PA, the accused was challaned.
4. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 13(2) of the Prevention of Corruption Act, 1988, was framed against him, to which he pleaded not guilty, and claimed judicial trial.
5. The prosecution, in support of its case, examined Dalbir Criminal Appeal No. 419-SB of 1991 6 Singh, Assistant, Office of Registrar Cooperative Societies, Chandigarh (PW1), who proved sanction PA, signed by Mr. G.S. Cheema, Registrar, Cooperative Societies, and identified his signatures, Kamal Kishore, Accountant, Office of the Assistant Registrar, Cooperative Societies, Ferozepur (PW2), who proved copy of the order PB, vide which, Hussan Lal, was appointed as Inspector Cooperative Societies,as also the posting order PC, and photostat copy of his service book PD, Jagtar Singh (PW3), the complainant, in this case, Babu Singh, Vigilance Inspector (PW4), the shadow witness, and Tara Chand (PW5), at the relevant time, posted as Vigilance Inspector, and thereafter promoted as Deputy Superintendent, the Investigating Officer. Thereafter, the Additional Public Prosecutor, for the State, after tendering, into evidence, exhibits PS and PT, affidavits of Moharrir Head Constable Kashmiri Lal, and Constable Sukhbir Singh, respectively, as also PU, report of the Forensic Science Laboratory, closed the prosecution evidence.
6. The statement of the accused, under Section 313 of the Code of Criminal Procedure, was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. It was admitted by him, that on 05.05.89, he was working as Inspector, Cooperative Societies, Focal Point, Ghallu, with additional charge of Jandwala Kharta Cooperative Society. He also admitted that Jagtar Singh, complainant, was working as Salesman of Cooperative Society, Jandwala Kharta. He also admitted that he had also been Criminal Appeal No. 419-SB of 1991 7 working as Secretary of the said Society since 01.01.89. He denied the remaining allegations and took up the following plea:-
"This is a false case. On 05.05.89, I was residing at Abohar and had to attend the meeting of Joint Registrar at Abohar at 10 AM. I was proceeding towards the office of Cooperative Marketing Society from my residential house and on my way I met Sher Singh, Sub Inspector of Cooperative Society, Jandwala Mira Sangla. When we both were about 10 yards short of IFFCO office, Jagtar Singh PW tried to give me some money in the presence of S.I. Sher Singh and told me to look after the Joint Registrar. I refused to accept that amount. Jagtar Singh tried to put that money in the right side pocket of my pant. I caught hold of his arm and when we were in that process, I was apprehended by the Vigilance Officials. The Vigilance Officials took me to City Abohar, Police Station. They were about 8-10 persons in number. This happened at about 9.45 AM. On 04.05.89, I never went to Ghallu Focal Point. On that day, I had visited Killianwali Cooperative Society at 8.30 AM in the presence of Dalbir Singh Sub Inspector. We returned back at about 3/3.30 PM. My presence has been recorded in the register of Killianwali Cooperative Society. I can produce the attested copy of the said entry.
Additional charge of Jandwala Kharta Society was given to me. This Society was suffering from embezzlement of huge amounts. I had asked for the records from SI Udik Chand and asked him to take records of the Society from Gurdev Singh and Jagtar Singh. I had also informed him about my intention of verifying the Society records on 17.05.89 with a view to get the cases registered against them. Jagtar Singh had noted that direction on 03.05.89 and Udik Chand had also noted it. After I was arrested on 05.05.89, audit of the Society was conducted and Jagtar Singh was found to have drawn Rs. 7030/-, as extra salary and case was registered against them. This case has been Criminal Appeal No. 419-SB of 1991 8 made against me because of that case on account of enmity. I am innocent."
7. The accused examined Vinod Kumar Grover, Stenographer (DW1), Krishan Parkash, Clerk (DW2), Dalbir Singh, Inspector (PW3), and Sher Singh, Sub Inspector, Cooperative Society (DW4). He also tendered into evidence resolution dated 04.05.89, exhibit D2, copies of the first information report D3 and D4, photostat copy of the special audit report D12, copy of the order exhibit D13, and copy of the plaint D14. Thereafter, the accused, closed the defence evidence.
8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court, convicted and sentenced the accused, as stated above.
9. Feeling aggrieved, the instant appeal, was filed by the appellant.
10. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully.
11. The Counsel for the appellant, submitted that Jagtar Singh, could not be said to be a trustworthy witness, on whose testimony, reliance could be placed. He further submitted that the first information report, copy whereof, is exhibit D3, under Sections 408, 409, 420,467, 468, 471, 379, and 120-B of the Indian Penal Code, was registered, against him, in the year 1987. He further submitted that another first information report, copy whereof, is D4, was registered, against Jagtar Singh. It was further submitted that the inquiry was being held, against Jagtar Singh, complainant, by the accused, and with a view to wriggle Criminal Appeal No. 419-SB of 1991 9 out of the same, he got manipulated the trap. He further submitted that, as such, Jagtar Singh, was inimically disposed towards the accused. He further submitted that, on account of the aforesaid criminal cases, pending against Jagtar Singh, his evidence could not be acted upon to record conviction. It was further submitted by him, that even the accused got suspended the aforesaid Society. It was further submitted by him, that the accused was not present in the office of the Society, on 04.05.89, but was present in Killianwali Society, on that day. He further submitted that even the evidence of Babu Singh, Vigilance Inspector, who was appointed as shadow witness, and of Tara Chand Sharma, Vigilance Inspector, the Investigating Officer, could not be said to be reliable, as they being trap witnesses, could be said to be highly interested, in the success of the same (trap). He further submitted that independent witness Ashok Kumar, who was joined from the Sewerage Board, was not examined by the prosecution and, as such, an adverse inference, could be drawn, against the prosecution that had he been examined, he would not have supported the case of the prosecution. He further submitted that the accused had no motive to demand and accept gratification, other than legal remuneration, from Jagtar Singh. He further submitted that the trial Court, was wrong, in ignoring the defence version, set up by the accused, and duly proved through defence evidence. He also submitted that the sanction was invalid. He further submitted that the trial Court, was wrong, in recording conviction and awarding sentence.
Criminal Appeal No. 419-SB of 1991 10
12. On the other hand, the Counsel for the respondent submitted that the mere fact that, in the past, two criminal cases, referred to above, were registered against Jagtar Singh, did not mean that he could not be said to be a creditworthy witness. He further submitted that Jagtar Singh, was not inimically disposed towards the accused, nor did he get manipulated the trap, against the accused. He further submitted that Hussan Lal, accused, was having a motive to demand and accept gratification, other than legal remuneration, from Jagtar Singh, as he was to verify his attendance report, as Salesman and Secretary, in the Society, and only thereafter, he could get arrears of his wages. He further submitted that, no doubt, trap witnesses are interested witnesses, yet their evidence, cannot be discarded merely, on account of that reason. He further submitted that the evidence of the trap witnesses, was duly corroborated, through other items of circumstantial evidence, and the trial Court, was right, in relying upon the same. He further submitted that the version, set up by the accused, and the evidence, produced by him, in support of that version, were duly considered and discussed by the trial Court, and, ultimately, the same were found to be not reliable and rejected. He further submitted that the trial Court, was right, in recording conviction and awarding sentence.
13. The case of the prosecution was unfolded by Jagtar Singh, who was admittedly Secretary in Jandwala Kharta Cooperative Society. It was stated by him, that he had not been paid salary from 01.11.87. Criminal Appeal No. 419-SB of 1991 11 His evidence was further to the effect that Hussan Lal, accused, being Inspector of the Society, was incharge of the aforesaid Society, and it was he, who was to verify his attendance report, in the Society, in pursuance of the resolution dated 28.03.89, and only thereafter, the payment of salary, was to be made, to him (Jagtar Singh). His evidence further proceeded, in the manner, that on 04.05.89, he met the accused, and requested him, to verify his attendance report. He further stated that the accused demanded a sum of Rs. 2,000/-, as gratification, other than legal remuneration, for verification of his attendance report. It was further stated by him, that since he was unable to meet the heavy demand, raised by the accused, he made a request, to him, and, ultimately, he (accused) agreed to obtain a sum of Rs. 1,000/-, as gratification, other than legal remuneration, for the aforesaid purpose. It was further stated by him, that the accused told him, that he (Jagtar Singh), should come to him, on the next day, i.e. 05.05.89, with the said amount, alongwith the verification of attendance report from the Sub Inspector. It was further stated by him, that on 05.05.89, he had gone to Sub Inspector, Cooperative Societies Udik Chand, to get the verification certificate of attendance. It was further stated by him, that he got the attendance report verified from him. He further stated that since he was not ready to pay gratification, other than legal remuneration, to the accused, for the aforesaid purpose, he approached the Vigilance Department, and made a statement, detailing the aforesaid facts, which was recorded and read over and explained to Criminal Appeal No. 419-SB of 1991 12 him. From his evidence, it was proved, that the tainted currency notes of Rs. 1,000/-, were also handed over by him, to Tara Chand Sharma, Deputy Superintendent, Vigilance, who applied phenol-pathelein powder, to the same, and entrusted the same, to him, with a direction to hand over the same to the accused, on demand, whereas, Babu Singh, Inspector, Vigilance, was appointed, as shadow witness. From his evidence, it was also proved that, on demand, he paid a sum of Rs. 1,000/-, as gratification, other than legal remuneration, to the accused, on 05.05.89, in the presence of Babu Singh, shadow witness, whereafter, the latter gave the requisite signal to the raiding party, and the accused was arrested and recovery of tainted currency notes was effected from him. The statement of Jagtar Singh, PW3, was duly corroborated through the evidence of Babu Singh, Inspector Vigilance, PW4, who was appointed as shadow witness, in all material particulars. Further corroboration to the ocular evidence, was provided through the hand-wash and the pocket-wash of the accused, as a result whereof, the solution turned into light pinkish. Still further corroboration was provided to the ocular version, through the factum, that the tainted currency notes, the numbers whereof, had already been noted, in a separate memo, were recovered from the accused, and he was unable to furnish any explanation, as to how, the same came into his possession, which were a short while ago, in the possession of Jagtar Singh. Still further corroboration to the ocular version, was provided through exhibit PU, report of the Forensic Science Laboratory, according to Criminal Appeal No. 419-SB of 1991 13 which, the hand-wash and pocket-wash of the accused, were chemically and physically examined separately. On the basis of colour test, litmus paper test, PH test, acid test, flame test, and clorimetric analysis data, it was concluded that sodium ions, carbonate ions, and phenol-pathelein, were present, in the contents of both hand-wash and the pocket-wash. The prosecution witnesses were thoroughly cross-examined, but nothing of consequence, could be got elicited from their mouth, which could go to discredit their evidence. In Hans Raj Vs. State of Haryana (1997(3) RCR 427, the principle of law, laid down, was to the effect, that the chemical test is a corroborative piece of evidence. In Roop Singh Vs. State of Punjab AIR 1991 (SC) 1125, it was held that where the accused was not able to explain the presence of phenol-pathelein powder, on his hands, his conviction, under the relevant Sections, was legally sustainable. There was no reason, on the part of Jagtar Singh, Babu Singh, and Inspector Tara Chand Sharma, to falsely implicate the accused, in the instant case. No doubt, the accused, has set up a plea, that Jagtar Singh, was inimically disposed towards him, yet the same was not proved, as would be discussed, in the subsequent paragraphs. The trial Court, was, thus, right in holding that the evidence of the prosecution witnesses, duly corroborated, through other circumstantial evidence, was cogent, convincing, reliable, and trustworthy. The submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
14. Coming to the credibility of Jagtar Singh, it may be stated Criminal Appeal No. 419-SB of 1991 14 here, that the same, could not be successfully, challenged by the accused. D3 is copy of the first information report No. 271, dated 30.06.87, pertaining to the allegations dated 30.06.87. This first information report, was registered, on the basis of the letter, dated 28.10.89, from the office of the Senior Superintendent of Police, Ferozepur. The allegations therein, were regarding the acts of criminal intent, attributed to Balbir Singh, Balwinder Singh, and Satyavart Rattan. No allegation of any criminal intent, was against Jagtar Singh. D4 is another copy of the first information report, pertaining to the acts, prior to 14.09.89. This first information report, was also registered, on the basis of the letter of the Senior Superintendent of Police, dated 28.01.91. This first information report, against Jagtar Singh, was registered, much later than the present first information report, was registered, against the accused. As stated above, in the first information report exhibit D3, there was no allegation, against Jagtar Singh, and the same related to the year 1987. The mere fact that, on the basis of the letters of the Senior Superintendent of Police, Ferozepur, the first information report, copy of which is D4, was registered, against the accused, did not mean, that he was inimically disposed towards the accused, in any manner. Even registration of criminal cases, prior to the relevant occurrence,or after the relevant occurrence, against a witness, cannot, in any manner, affect his credibility, so far as the case, in which, he is a witness is concerned. If his evidence is disbelieved merely, on the ground, that one or two criminal cases prior to or after Criminal Appeal No. 419-SB of 1991 15 the occurrence, in which, he was a witness were registered, against him, then there would be no person, in the society, who could be believed. During the course of one's life, sometimes correct and sometimes false criminal cases are registered, against him, for a variety of reasons. If such registration of cases are taken into consideration, then no credibility can be attached to the evidence of any witness. Every person is a competent witness, according to the provisions of law. Jagtar Singh, was a competent witness. As stated above, the registration of the aforesaid first information report, against him, one much before the present case, and the other, after the present case, did not at all affect his credibility or reliability. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected.
15. The accused placed, on record, D1, letter written by him, to Udik Chand, directing him, that he (accused) wanted to inspect the Society, on 17.05.89. He was also directed that the records be taken from Jagtar Singh, and others. Udik Chand, was told that, in case, he failed to obtain the records, action could be taken, against him. Exhibit D1/A, is the endorsement of Jagtar Singh, showing that he had noted the contents of the letter, on 03.05.89. The perusal of this letter, does not indicate, that any action was contemplated against Jagtar Singh. The action against Udik Chand, only was to be taken, in case, he failed to obtain the record, as directed, in the letter, aforesaid. D9 is another letter, addressed by the accused, on 13.03.89, asking for the suspension Criminal Appeal No. 419-SB of 1991 16 of Jandwala Kharta Cooperative Society. Exhibit D10 is the notice issued to the Society, regarding suspension of the same. It may be stated here, that the perusal of the letter, and the notice, aforesaid, does not go to indicate, that the Society, was going to be suspended, on account of the allegations, against Jagtar Singh, alone. The Society was going to be suspended only, on the basis of its general working. D11 is the letter of the Assistant Registrar, Fazilka, addressed to the accused, asking him to produce the record, against Jagtar Singh, and Balbir Singh, Ex-Secretary, in Police Station Sadar, Fazilka, on 17.04.89. This letter was not written by the accused. He had been directed by the Assistant Registrar, Cooperative Societies, Fazilka, to produce the record, against Jagtar Singh, and Balbir Singh. In case, Jagtar Singh, had any grudge, on account of the said letter, he could have possibly the same, against the Assistant Registrar Cooperative Societies, Fazilka, and not, against the accused. D12 another letter, showing that, according to the records of the Society, Jagtar Singh, had taken Rs. 7030/-, as extra wages. This document was not prepared by the accused. D13 is a copy of the order and D14 is a copy of the plaint, showing that the Society was suspended and it had filed a suit for declaration, that the order of the Assistant Registrar, dated 17.03.89, was illegal, null and void. The grouse, if any, to the Society, or its functionaries, on account of its suspension, was against the Assistant Registrar Cooperative Societies, Fazilka, and not, against the accused. The aforesaid documents, did not, in any way, indicate or establish, that Criminal Appeal No. 419-SB of 1991 17 Jagtar Singh, was having any grudge or enmity, against the accused, on account of the which, the present case was registered against him. There is also nothing, in these documents, to establish, that the accused was falsely implicated, in the present case, on account of any alleged grudge, by Jagtar Singh. The submission of the Counsel for the appellant, that the accused, was falsely implicated, on account of the aforesaid letters and orders, being without merit, must fail, and the same stands rejected.
16. According to D2, document, on 04.05.89, the accused had visited Killianwali Society, as part of his tour programme, and checked the records of the said Society. It was found by him, that records were not complete. The Secretary, was directed to complete the records, so that, necessary statements could be prepared. The Secretary, was also directed to withdraw Rs. 17,000/-, from the bank and deposit the same in Government Treasury, and the credit records, were directed to be sent to the office of the Assistant Registrar. It was found that all the employees were present. No employee of Killianwali Society, was produced to prove the factum of the visit of the accused, in that Society, on 04.05.89, nor anything was placed, on record, to show that the directions given by the accused, in this resolution, were subsequently carried out. This document was also not proved according to the provisions of law. This document was apparently prepared, later on, just with a view to justify the visit of the accused, in Killianwali Society, on 04.05.89, and to prove that since he was in Killianwali Criminal Appeal No. 419-SB of 1991 18 Society, on 04.05.89, the question of Jagtar Singh, meeting him, and requesting him, to verify his attendance report, resulting into demand of gratification, other than legal remuneration, by him (accused), from him (Jagtar Singh), did not at all arise. The submission of the Counsel for the appellant that the question of meeting the accused to Jagtar Singh,on 04.05.89, did not arise,being without merit, is rejected.
17. Tour programme of Sh. N.S. Sandhu, Joint Registrar, Cooperative Societies exhibit D5, showing that 04.05.89 and 05.05.89, he visited Fazilka and Abohar, held meeting with Inspectorate Staff, and stayed, at that place, was produced on record. He held meeting with Inspectors of Abohar, and Khuyian Sarwar blocks, at Abohar, on 05.05.89, and then he returned. Sher Singh, Sub Inspector, was examined as DW4, who stated that on 05.05.89, he and the accused were going to attend the meeting of Joint Registrar, at Abohar, and when they reached near IFFCO Centre, Abohar, at about 9.30 AM, Jagtar Singh, Secretary, met the accused, and asked him to sign some papers, which Jagtar Singh, had shown to him. He further stated that the accused went aside and started signing the papers produced by Jagtar Singh, at his (Jagtar Singh's) instance. This reveals that the relations, between the accused and Jagtar Singh, were not strained but cordial. Not only this, he stated that the accused was apprehended by the Vigilance staff at 9.45 AM, near the office of the Marketing Cooperative Society, Abohar, when Jagtar Singh tried to put something in the pocket of his pant. This means that vigilance raid was conducted Criminal Appeal No. 419-SB of 1991 19 at the accused and he was apprehended by the vigilance officials on 05.05.89 at about 9.45 AM. No help from exhibit D5, therefore, could be drawn by the Counsel for the appellant.
18. The defence version, and the defence evidence, produced by the accused, were duly discussed and analyzed by the trial Court, in para Nos. 19, 20, 21, 22, 23, and 24, and were disbelieved and discarded for sound reasons. The findings recorded by the trial Court, in disbelieving and discarding the defence version, as also the defence evidence, produced by the accused, are based on the correct appreciation of evidence. The findings recorded by the trial Court, do not suffer from any illegality or infirmity. This Court, after perusal of the defence version, and the defence evidence, also comes to the conclusion, that the trial Court, was right, in disbelieving and discarding the defence version and the defence evidence, in the face of the cogent and convincing evidence of the prosecution. The conclusion arrived at, by the trial Court, in this regard, does not warrant any interference, and is liable to be upheld.
19. No doubt, Ashok Kumar, witness, who was joined from the Sewerage Board, was not examined by the prosecution. It may be stated here, that it is not necessary for the Public Prosecutor, for the State, to examine each and every witness. It is for the Public Prosecutor, for the State, to decide, as to how many witnesses, he wants to examine, to prove the case of the prosecution. Since the Additional Public Prosecutor, for the State, was of the opinion, that the evidence of Jagtar Criminal Appeal No. 419-SB of 1991 20 Singh, complainant, Babu Singh, shadow witness, and Tara Chand Sharma, Deputy Superintendent, was sufficient to prove the case of the prosecution, he did not want to multiply the number thereof, by examining Ashok Kumar, Junior Engineer. Since the prosecution case was unfolded by Jagtar Singh, and Babu Singh, complainant and shadow witness, respectively, the Additional Public Prosecutor, for the State, did not consider the necessity of examining Ashok Kumar. Non- examination of Ashok Kumar, did not at all affect the merits of the case. In Hazari Lal Vs. The State of (Delhi Admn.), AIR 1980, Supreme Court 873, the principle of law, laid down, was that, if the evidence of the Police Officer, who laid trap, is found reliable, no corroboration is necessary, to the same, and conviction could be based thereon. In State of U.P. Vs. Zakaullah 1998, RCC 191 (Supreme Court) it was held that there was no need of independent corroboration, to the evidence of prosecution witnesses. Evidence of the prosecution witnesses, duly corroborated, through other items of circumstantial evidence, has been held to be cogent, convincing, reliable and trustworthy. In these circumstances, examination of an independent witness, did not all affect the merits of the case. In Appa Bai and another Vs. State of Gujrat, AIR 1988 S.C. 696, it was held that the prosecution story cannot be thrown out, on the ground, that an independent witness had not been examined, by the prosecution. In State of U.P. Vs. Anil Singh (AIR 1988 S.C. 1998) it was held that it is not a correct approach to reject the prosecution version, merely on the Criminal Appeal No. 419-SB of 1991 21 ground that all the witnesses to the occurrence were not examined. The principle of law, laid down, in the aforesaid cases, is fully applicable, to the facts of the instant case.
19-A. Reliance was placed by the Counsel for the appellant on Ram Parkash Vs. State of Punjab, Crl. Appeal No. 149 of 1992; decided on 16.07.2003, by a single Bench of this Court, to contend that non-examination of Ashok Kumar, an independent witness must prove fatal to the case of the prosecution. This case was decided, on the peculiar facts and circumstances of the case, prevailing therein. Not only this, even in view of the principle of law, laid down, in Hazari Lal's, State of U.P's, Appa Bai's and State of U.P. Vs. Anil Singh's cases, decided by the Apex Court, any principle of law, on the same point, to the contrary, laid down by a single Bench, shall not hold the field. No help, therefore, can be drawn by the Counsel for the appellant, from Ram Parkash's case supra. The submission of the Counsel for the appellant, is, thus, rejected. In this view of the matter, the submission of the Counsel for the appellant, being without merit, must fail, and the same stands rejected.
20. Coming to the validity of the sanction, it may be stated here, that the perusal of exhibit PA, shows that Sh. G.S. Cheema, the then Registrar, Cooperative Societies, Punjab, Chandigarh, accorded the same. It is evident from exhibit PA, that the facts of the case were detailed therein. It is further evident from exhibit PA, that after thoroughly scrutinizing the Police file, and the documents attached Criminal Appeal No. 419-SB of 1991 22 with the challan, the competent authority was satisfied that prima-facie the accused committed the offence, punishable under Section 13(2) of the Prevention of Corruption Act, 1988. It is, therefore, evident that the competent authority applied its mind to the facts and circumstances of the case, before according sanction. In Shiv Raj Singh Vs. Delhi Administration, AIR 1968 (SC), 1419, it was held that where the order of sanction shows, on the face of it, what were the facts, constituting the offence charged, against the accused, and the order further recites that the sanctioning authority after fully and carefully examining the material before it, in regard to the aforesaid allegations, in the case, considers that a prima facie case is made out, against the accused, the order fulfills the requirements of Section 6 of the Prevention of Corruption Act, 1947 (now Section 19) of the Prevention of Corruption Act, 1988. The principle of law, laid down, in the aforesaid authority, is fully applicable, to the facts of the instant case. It is held that a valid sanction was accorded by the competent authority.
21. The Counsel for the respondent, however, submitted that the statutory presumption, under Section 20 of the Prevention of Corruption Act, 1988, could be raised, against the accused, as the tainted currency notes, were recovered, from the right side pocket of the pant worn by him. He further submitted that once the currency notes were recovered, from the right side pocket of the pant, worn by the accused, it was for him to explain, as to how, the same came into his possession, which were, a short-while ago, in the possession of the Criminal Appeal No. 419-SB of 1991 23 complainant. The submission of the Counsel for the State, in this regard, appears to be correct, in view of the evidence discussed above. In Tarlok Chand Jain Vs. State of Delhi, AIR 1977, S.C. 666, a case, relating to Section 5(1) and (2) of the Prevention of Corruption Act, 1947, (now Section 13) of the Prevention of Corruption Act, 1988, the question, with regard to the interpretation and scope of Section 4 (1) (now Section 20) arose before the Apex Court, wherein, it was held as under:-
"The degree and the character of the burden of proof which Section 4(1) casts on an accused person, to rebut the presumption raised thereunder, cannot be equated with the degree and character of proof, which under Section 101, Evidence Act, rests on the prosecution. While the mere plausibility of an explanation, given by the accused in his examination under Section 342 Cr.P.C., may not be enough, the burden on him to negate the presumption may stand discharged if the effect of the material brought, on the record, in its totality, renders the existence of the fact presumed, improbable. In other words, the accused may rebut the presumption, by showing a mere preponderance of probability, in his favour; it is not necessary for him to establish his case, beyond a reasonable doubt. AIR 1974. S.C. 773, followed.
The sole purpose of the presumption under Section 4(1) is to relieve the prosecution of the burden of proving a fact which is an essential ingredient of the offences, under Section 5(1)and (2) of the Prevention of Corruption Act and Section 161 Penal Code. The presumption, therefore, can be used in furtherance of the prosecution case and not in derogation of it. If the story set up by the prosecution inherently militates against or is in consistent with the fact presumed, the Criminal Appeal No. 419-SB of 1991 24 presumption will be rendered sterile from its very inception, if out of judicial courtesy, it cannot be rejected out of hand as still-born."
The plain reading of the principle of law, laid down, in the aforesaid authority, reveals that the accused can rebut such presumption, by leading evidence, or from the evidence of the prosecution witnesses. It is, no doubt, not necessary for him, to establish his case, to rebut such statutory presumption, operating against him, under Section 4(1) of the Act, beyond a reasonable doubt. In the instant case, the accused tried to furnish, an explanation, in his statement under Section 313 of the Code of Criminal Procedure, to the effect that Jagtar Singh tried to give him some money in the presence of Sher Singh and told him to look after the Joint Registrar. He further stated that, he refused to accept that amount. He further stated that, Jagtar Singh, tried to put that money, in the right side pocket of his pant. He further stated that, he caught hold of his arm, and when they were in that process, he was apprehended by the Vigilance Officials. This explanation furnished by the accused, in his statement, under Section 313 of the Code of Criminal Procedure, was completely belied, from the cogent, convincing, and reliable evidence of the prosecution witnesses. Had such an incident taken place, the accused being Inspector of the Cooperative Societies, could make a complaint, against Jagtar Singh, and the Vigilance officials, to the Registrar, Cooperative Societies, Punjab, Chandigarh. He could also send such a complaint to the higher Vigilance, and administrative authorities, but he failed to do so. From the evidence, discussed above, Criminal Appeal No. 419-SB of 1991 25 it was proved that the accused handled the tainted currency notes. It was only, on account of that reason, that his hands when dipped into the solution, the colour thereof, turned into pinkish. Had the things happened, in the manner, stated by the accused, in his statement, under Section 313 of the Code of Criminal Procedure, then his hand-wash, and pocket-wash would not have turned into pinkish. So this explanation of the accused, is completely belied by the ocular, and circumstantial evidence. The other explanation, furnished by the accused, in his statement, under Section 313 of the Code of Criminal Procedure, that he was falsely implicated, in the instant case, as Jagtar Singh, was inimically disposed towards him, was also found to be not believable. Under these circumstances, the accused failed to rebut the statutory presumption, under Section 20 of the Prevention of Corruption Act, 1988. The aforesaid non-rebutted statutory presumption, further strengthens the truthfulness of the prosecution evidence.
22. No other point, was urged, by the Counsel for the parties.
23. In view of the above discussion, it is held that the judgment of conviction and the order of sentence are based on the correct appreciation of evidence and law, on the point. The same do not warrant any interference, and are liable to be upheld.
24. For the reasons recorded above, the appeal, being devoid of merit, is dismissed. The judgment of conviction and the order of sentence, are upheld. If the appellant is on bail, his bail bonds shall Criminal Appeal No. 419-SB of 1991 26 stand cancelled. The Chief Judicial Magistrate shall take necessary steps to comply with the judgment with due promptitude, keeping in view the provisions of Section 428 of the Code of Criminal Procedure, and submit the compliance report within 2 months.
25. The District & Sessions Judge, is also directed to ensure that the directions, referred to above, are complied with, and the compliance report is sent within the time frame, to this Court.
26. The Registry is directed to keep track that the directions are complied with, within the stipulated time. The papers be put up within 10 days, of the expiry of the time frame, whether the report is received or not, for further action.
15.04.2009 (SHAM SUNDER) AMODH JUDGE