Punjab-Haryana High Court
Jawahar Lal Son Of Rati Ram vs State Of Haryana on 27 April, 2010
Criminal Appeal No. 714-SB of 1996 1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Criminal Appeal No. 714-SB of 1996
Date of Decision: 27.04.2010
Jawahar Lal son of Rati Ram, resident of Garhi Mohalla,
Rohtak.
... Appellant
Versus
State of Haryana.
...Respondent
CORAM: HON'BLE MR. JUSTICE SHAM SUNDER
Present: Ms. Baljit Mann, Advocate,
for the appellant.
Mr. Sandeep Mann, Senior Deputy Advocate General,
Haryana, for the respondent - State.
SHAM SUNDER, J.
This appeal is directed against the judgment of conviction, dated 09.10.96, and, the order of sentence, dated 11.10.96, rendered by the Special Judge, Bhiwani, vide which, he convicted the accused (now appellant), for the offence, punishable under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter to be called as the 'Act' only) and, sentenced him to undergo rigorous imprisonment, for a period of 02 years, and, to pay a fine of Rs. 10,000/-, and, in default of payment thereof, to further undergo rigorous imprisonment, for a period of 06 months.
Criminal Appeal No. 714-SB of 1996 2
2. The facts, in brief, are that, Ram Avtar, complainant, was having a kiosk (khokha), on the land, belonging to the Development and Panchayat Department, under the control of Block Development and Panchayat Officer (II), at a monthly rental of Rs. 150/-, wherein, he was selling seeds insecticides etc. On 28.05.93, the complainant, was summoned, by the accused, and told either to remove his kiosk (khokha), from the land, or pay a sum of Rs.10,000/-, as gratification, other than legal remuneration, to which, he agreed. However, on 02.06.93, after having consultation with his brother namely Ram Kishan, the complainant, moved a written complaint, to the Deputy Superintendent of Police, Dadri, against the accused, on the basis whereof, the first information report, was registered. Thereafter, a raiding party, consisting of Ram Avtar, complainant, Kuldeep Singh, Deputy Superintendent of Police, Arun Kumar, Sub Divisional Magistrate, Dhan Singh, Naib Tehsildar, and, Dharam Singh, Sub Inspector/Station House Officer, Police Station City, Charkhi Dadri, was formed. A sum of Rs. 10,000/-, consisting of ten currency notes of the denomination of Rs. 500/- each, and hundred notes of the denomination of Rs. 50/- each, was given, by the complainant, to the Deputy Superintendent of Police. Three currency notes of the denomination of Rs. 500/, and, Rs. 50/- each, were signed, by the Deputy Superintendent of Police. Thereafter, the entire amount of Rs. 10,000/-, was handed over, by the Deputy Superintendent of Police, to the complainant, vide a separate memo, duly signed by the Sub Divisional Magistrate, and, Dhan Singh, Naib Tehsildar, shadow Criminal Appeal No. 714-SB of 1996 3 witness. The complainant, was instructed, to hand over the amount of Rs. 10,000/-, to the accused, as gratification, other than legal remuneration, on his demand, whereas, Dhan Singh, Naib Tehsildar, was directed, to give a signal, as and when, the aforesaid currency notes, were handed over by the complainant, to the accused. Thereafter, the raiding party, proceeded towards the house of the accused. The complainant, went inside the house of the accused, and, on demand, handed over a sum of Rs. 10,000/-, as gratification, other than legal remuneration, to him. Dhan Singh, Naib Tehsildar, gave a signal to the members of the raiding party, the moment, the gratification, other than legal remuneration, was given, by the complainant, to the accused. The accused was arrested. His personal search, led to the recovery of 43 currency notes of the denomination of Rs. 100/- each, from the purse of the accused. Thereafter, the raiding party, conducted search of the room of the accused, wherefrom, the amount of Rs. 10,000/-, paid by Ram Avtar, to the accused, was recovered from underneath the mattress of the bed, wrapped in a newspaper. The entire amount of Rs. 10,000/-, recovered from the accused, paid to him, as gratification, other than legal remuneration, was taken into possession, vide a separate recovery memo. The statements of the witnesses were recorded. After the completion of investigation, the accused, was challaned.
3. On his appearance, in the Court, the accused, was supplied the copies of documents, relied upon by the prosecution.
4. Charge under Section 7 of the Act, was framed, against the accused, to which, he pleaded not guilty, and claimed judicial trial. Criminal Appeal No. 714-SB of 1996 4
5. The prosecution, in support of its case, examined Karan Singh, Block Development and Panchayat Officer, Hansi (PW1), Dharambir, Accountant (PW2), Rajpal, Draftsman (PW3), Ram Avtar, complainant (PW4), A.K. Raghav, Chief Judicial Magistrate (PW5), Arun Kumar, IAS (PW6), Dhan Singh, Naib Tehsildar (PW7), shadow witness, and, Kuldeep Singh Sihag, Deputy Superintendent of Police (PW8), Investigating Officer. Thereafter, the prosecution evidence was closed.
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. He pleaded false implication. It was stated by him that, on 02.06.93, he was busy, in the meeting with the bankers, which started, at about 11.00, in the morning. It was further stated by him that, after the end of the meeting, when, he was seeing off the officers, he was arrested, near the hall of the Panchayat Samiti. It was further stated by him that, it was there, that his person, was searched, and a sum of Rs. 4300/-, belonging to him, which was the amount of his pay and allowances, was recovered, from him, besides the wrist watch and the gold ring. It was further stated by him that, he had never accepted any amount of Rs.10,000/-, from Ram Avtar. It was further stated by him that, he never demanded any such amount, from the complainant. It was further stated by him that, the place, wherefrom, the amount, was alleged to have been recovered, did not belong to him. It was further stated by him that, the room, was not occupied by him. It was further Criminal Appeal No. 714-SB of 1996 5 stated by him that, the house, itself belonged to Hari Ram, BDPO (I), Dadri. With a view to avoid repetition, the remaining defence set up by the accused, in his statement under Section 313 Cr.P.C., shall be discussed in detail, in the subsequent paragraphs. He, however, examined Raghvar Dayal Aggarwal (DW1), Hari Om, Clerk, D.C. Office, Bhiwani, Development Branch, Bhiwani (DW2), Badan Singh, Clerk, office of BDPO, Charkhi Dadri (DW3), Mahabir Parshad (DW4), Siri Chand, Head Constable (DW5), Sube Singh, Advocate, Charkhi Dadri (DW6), and, Devan Babu Sharma, Junior Engineer, Municipal Committee, Charkhi Dadri (DW7). Thereafter, he closed his defence evidence.
7. 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.
8. Feeling aggrieved, the instant appeal, has been filed by the appellant.
9. I have heard the Counsel for the parties, and, have gone through the evidence and record of the case, carefully.
10. To establish the commission of offences, punishable under Sections 7 of the Act, the prosecution, is required to prove the following ingredients:-
(i) The accused, was a public servant or expected to be a public servant, at the time, when the offence, was committed;
(ii) The accused, accepted or obtained or agreed to accept or attempted to obtain illegal gratification from some person;Criminal Appeal No. 714-SB of 1996 6
(iii) Such gratification, was not a legal remuneration, to which, the accused, was legally entitled;
(iv) The accused, accepted such gratification, as a motive or reward for fore-bearing to do an official act, or doing or fore-bearing to show favour, or disfavour, to someone, in the exercise of his official functions.
11. The case of the prosecution, is mainly based, on the evidence of Karan Singh, Block Development and Panchayat Officer, Hansi (PW1), Dharambir, Accountant (PW2), Rajpal, Draftsman (PW3), Ram Avtar, complainant (PW4), A.K. Raghav, Chief Judicial Magistrate (PW5), Arun Kumar, IAS (PW6), Dhan Singh, Naib Tehsildar (PW7), shadow witness, and, Kuldeep Singh Sihag, Deputy Superintendent of Police (PW8), Investigating Officer. Before touching the merits of the case, it is to be seen, as to what is the position of the trap witnesses. The principle of law, laid down, in Raghbir Singh Vs. State of Punjab, AIR, 1976 (SC), 91, Shanti Lal Rameshwar Vs. State of Rajasthan, AIR, 1976 (SC), 738, Jai Ram Lakha Vs. State of Punjab, 1978, CLR (SC), 286, and, Darshan Lal Vs. Delhi Administration, 1974, CLR, 611 (SC), was to the effect, that the witnesses, in a trap case, are considered to be interested or partisan witnesses. Their evidence, is required to be scrutinized, carefully and cautiously, like that of any other interested or partisan witnesses and the Court may require corroboration to the evidence of such witnesses, through an independent source, in appropriate cases. Keeping in view the principle of law, laid down, in the aforesaid authorities, by the Criminal Appeal No. 714-SB of 1996 7 Apex Court, it is to be seen, as to whether, the evidence of the aforesaid witnesses, is reliable and credible, and without corroboration from an independent source, sufficient for bringing home the guilt to the accused. This aspect of the matter is being discussed, in the succeeding paragraphs.
12. There is, no dispute, about the factum that, the accused, at the relevant time, was Block Development & Panchayat Officer (II). This fact, was admitted, by the accused, in his statement, under Section 313 of the Code of Criminal Procedure, and it was also proved, from the evidence, on record. Under these circumstances, the accused, was a public servant, at the relevant time.
13. The next question, that arises for consideration, is, as to whether, the accused, had any motive, to demand gratification, other than legal remuneration, in the sum of Rs. 10,000/-, from the complainant. According to the complainant, his kiosk (khokha), was placed, near the wall of the Cooperative Bank. The land, under the kiosk (khokha), belonged to the Development and Panchayat Department under the control of Block Development & Panchayat Officer (II), and, he had been paying a rent of Rs. 150/- per month since 1981. He further stated that, the accused, asked him, to remove the kiosk (khokha), otherwise, he would get the same removed, by force, and, for that purpose, he demanded a sum of Rs. 10,000/-, as gratification, other than legal remuneration from him. DW6/A, is a copy of the resolution, passed by the Panchayat Samiti, on 29.05.93. It is evident, from DW6/A, the resolution, that proposal regarding the Criminal Appeal No. 714-SB of 1996 8 construction of shopping complex, by the Panchayat Samiti, was accepted. In that proposal, Ram Avtar, complainant, was accommodated, even beyond the normal rights of a kiosk (khokha) holder. It is evident, from item No. 6 of DW6/A, that Ram Avtar Beej Bhandar and the occupant of the kiosk (khokha), running a book shop therein, had agreed, to pay a sum of Rs. 30,000/- and Rs. 8,000/- advance respectively, and, that Ram Avtar, was demanding a shop, while no other person, was ready, to take the shop. It is further evident, from this document, that this amount of advance, was to be adjusted against the rent. This document further reveals that, Ram Avtar, complainant, wanted a shop 1 ft. bigger in size, than the normal size, and, he was ready, to pay rent @ Rs. 1,000/- per month, for the said shop. When the resolution, had already been passed, by the Panchayat Samiti, wherein, approval had been granted, for the construction of a shopping complex, and, Ram Avtar, had already been accommodated, even beyond the normal rights of a kiosk (khokha) holder, as far back, as on 29.05.93, the question of demanding and accepting a sum of Rs. 10,000/-, by the accused, as gratification, other than legal remuneration, from him, on 02.06.93, did not at all arise. Had this resolution been not passed, on 29.05.93, the matter, would have been different. In those circumstances, it would have been said, that the accused, had some motive, as a result whereof, he allegedly called the complainant, to his office, and demanded a sum of Rs. 10,000/-, as gratification, other than legal remuneration. Since the complainant, knew that, he had been accommodated, in respect of a larger space than Criminal Appeal No. 714-SB of 1996 9 that of a kiosk, vide the resolution aforesaid, no prudent man, could believe, that he would pay gratification, other than legal remuneration, in the sum of Rs. 10,000/-, to the accused, on 02.06.93. The prosecution, therefore, miserably failed, to prove, that the accused, allegedly accepted the gratification, other than legal remuneration, as a motive or reward for showing favour, to the complainant, in the exercise of his official functions. This ingredient, for constituting the offence, punishable under Section 7 of the Act, was not proved.
14. Now coming to the first demand of gratification, allegedly made, by the accused, on 28.05.93, other than legal remuneration, it may be stated here, that the statement of Ram Avtar, complainant, PW4, in that regard, is neither reliable, nor corroborated, through any other evidence, as would be discussed, hereinafter. Ram Avtar, when appeared, as PW4, in his examination-in-chief, stated that, he was summoned, by the accused, on 28.05.93, in the afternoon, and he asked him, if he wanted, to retain his kiosk (khokha) or get it replaced with a new kiosk, then he would have to pay a sum of Rs. 10,000/-. As stated above, this statement of Ram Avtar, PW4, is not supported by any independent witness. Normally, the agenda of the meeting, is sent, almost one day before. In the instant case, the meeting of the Panchayat Samiti, took place, on 29.05.93, wherein, a proposal, was approved, for the construction of a new shopping complex, wherein, the complainant, was allowed, to retain more space, than a kiosk (khokha) holder. On 28.05.93, the agenda, must have been received, by the accused. He knew that, there was a proposal, for the construction of new shopping Criminal Appeal No. 714-SB of 1996 10 complex. Under these circumstances, there was no occasion for him, to demand a sum of Rs. 10,000/-, as gratification, other than legal remuneration, from the complainant, for retaining his kiosk (khokha). The story of demand of Rs. 10,000/-, as gratification, other than legal remuneration, by the accused, on 28.05.93, as set up by the complainant, is nothing, but a concocted one. The complainant, being an interested witness, his evidence, could not be taken, as a gospel truth. The alleged first demand, made on 28.05.93, therefore, did not stand proved, beyond a reasonable doubt, from the evidence, on record.
15. Now coming to the alleged second demand and acceptance of a sum of Rs. 10,000/-, as gratification, other than legal remuneration, on 02.06.93, it may be stated here, that it has been held above, that there was no motive with the accused, either to demand, or accept this amount, as gratification, other than legal remuneration, as it was not within his competence, to allot the shop, to the complainant, on account of the reason, that already, a proposal, had been sanctioned, for the construction of a new shopping complex. Not only this, even the statement of Ram Avtar, PW4, to the effect that, on 02.06.93, the accused, demanded a sum of Rs. 10,000/-, as gratification, other than legal remuneration, and, he paid the same, to him, is not at all reliable. Besides that, his statement, in this regard, is not corroborated, by Dhan Singh, Naib Tehsildar, PW7, who was appointed, as a shadow witness, by the Investigating Officer. He did not state even a single word, that he heard the accused, demanding a sum of Rs. 10,000/-, as gratification, other than legal remuneration. Had the amount been Criminal Appeal No. 714-SB of 1996 11 demanded, as gratification, other than legal remuneration, by the accused, from the complainant, he being the shadow witness, would have certainly deposed, in that regard. The alleged second demand, on 02.06.93, was also not proved, by the prosecution, beyond a reasonable doubt.
16. Under these circumstances, it is to be determined, as to what was the effect of non-proof of the initial (first) and the second demand of gratification, other than legal remuneration, by the accused, from the complainant. The law is well settled, that when the prosecution fails to prove the initial and the second demand of gratification, other than legal remuneration, by the accused, from the complainant, then its case is bound to dwindle down. In Subash Parbt Sonvane Vs. State of Gujarat, 2002(3) RCR (Criminal), 188 (SC), a decision rendered by a Bench of three Judges of the Apex Court, the principle of law, laid down, was to the effect, that when there is no evidence, that the accused, demanded money, from the complainant,no offence under the provisions of the Act, is constituted. In Dharam Pal Vs. State of Haryana, 1997(4), RCR, 737 (P&H), the principle of law, laid down, was to the effect, that there is always demand first of illegal gratification, and then acceptance of the same, in reiteration of that demand. It was further held that if the demand of illegal gratification is not proved, then conviction for the offence, punishable under Section 7 of the Act, could not be recorded. In G.V. Naniudiah Vs. State (Delhi Administration), 1988(1), CLR, 595 (SC), the principle of law, laid down, was to the effect that, if the evidence, with regard to the demand Criminal Appeal No. 714-SB of 1996 12 of illegal gratification, was found to be unreliable, the benefit of doubt, should go to the accused, and he should be acquitted. The principle of law, laid down, in Pritam Singh Vs. The State of Punjab (1987-91), Supp. CLR, 13, was to the effect, that once there is no independent evidence, to support the prosecution version, regarding the demand of bribe, by the accused, and even the shadow witness fails to support the prosecution case, on this aspect of the matter, the case of the prosecution, against the accused fails and the accused is entitled to acquittal. In Ram Krishan Juneja Vs. The State of Haryana, 1993(1), RCR, 312, there was no independent evidence, that the accused, had demanded bribe money. The accused was given the benefit of doubt, and was acquitted of the charge, framed against him, for the offence, punishable under Section 5(2)(47) of the Prevention of Corruption Act, 1947. In Tarlok Singh Vs. The State of Punjab, 1983, RCR, 382, the demand of bribe, was not corroborated by an independent witness. It was held that the testimony of the complainant alone, regarding the demand of bribe, was not sufficient and the witnesses being interested, no reliance can be placed, on their testimony. Accordingly, the accused was acquitted. In Mani Ram Vs. State of Haryana, 2000(2), RCR (Criminal), 352, there was no evidence of initial demand of bribe, by the accused. The shadow witness also did not support the initial demand of bribe, by the accused. In these circumstances, it was held that, in such a case, the evidence should be impeachable and inspire confidence, in the absence whereof, the accused was entitled to acquittal. Ultimately, the accused was acquitted. In Satbir Singh Vs. Criminal Appeal No. 714-SB of 1996 13 State of Haryana, 2000(1), RCR (Criminal), 487, the initial demand of illegal gratification, by the accused, was not proved, by the prosecution, and the accused was acquitted. The crux of the principle of law, laid down, in the aforesaid cases, is to the effect that, if the prosecution fails, to prove, that the accused, made a demand of gratification, other than legal remuneration, then its case must fall to the ground. The principle of law, laid down, in the aforesaid cases, is fully applicable to the facts of the present case. As stated above, in the instant case, neither the initial demand of illegal gratification, nor the second demand dated 02.06.93 of the same, stood proved, beyond doubt, from the evidence, on record. In this view of the matter, relying upon the principle of law, laid down, in the aforesaid cases, it can be held that, no conviction for the offence, punishable under Section 7 of the Act, can be recorded, against the accused.
17. Now coming to the factum, with regard to the payment of Rs. 10,000/-, as gratification, other than legal remuneration, it may be stated here that, no doubt, the complainant and Dhan Singh, Naib Tehsildar, PW7, in their statements, stated that, the amount of Rs. 10,000/-, as gratification, other than legal remuneration, was paid, to the accused. However, no recovery of the alleged amount of gratification, other than legal remuneration, was effected, from the accused. On the other hand, the recovery of the tainted currency notes of Rs. 10,000/-, was effected, from underneath the mattress, lying on the bed, in a room of the residential house. The question arises, as to whether, the accused, was residing, in that residential house, or the Criminal Appeal No. 714-SB of 1996 14 same, had been allotted, to somebody else. Dharambir, Accountant of the Office of Block Development & Panchayat Officer, Dadri-II, when appeared, as PW2, stated that, there is only one residence meant for BDPO, at Dadri, and, that was occupied by Hari Ram, BDPO(I), Dadri. He further stated that, he was still occupying the same. He further stated that, the residence, was not allotted, to Jawahar Lal, accused, or, to any other BDPO No. (II) till the date of his statement, in the Court. He further stated that, Jawahar Lal, accused, was not allotted any government accommodation and he used to live with some relative at Dadri. There was no reason, on the part of Dharambir, Accountant, PW2, to depose falsely. He being an official witness of the Office of the BDPO, Dadri-II, could be said to be the best person, to state, as to whom, the residence aforesaid, was allotted, and, who was residing therein. No document, was produced, by the prosecution, on the record, to prove, that the aforesaid residence, had been allotted, to the accused, and, he was actually residing therein. Mahabir Parshad, DW4, also stated that, in May and June, 1993, Jawahar Lal, was posted, at Dadri. He further stated that, earlier he was posted, as BDPO, Ferozepur Jhirka. He further stated that, at Dadri, he was not having any accommodation, allotted to him, during May-June 1993. He further stated that, Jawahar Lal, accused, being his mother's sister's husband, was residing with them. No doubt, he is nearly related, to the accused, yet, his evidence, cannot be discarded, merely on account of such relationship. The prosecution, miserably failed, to prove, that the residence, was allotted, to the accused, and, he was residing therein. Criminal Appeal No. 714-SB of 1996 15 The evidence of Mahabir Parshad, DW4, is duly corroborated by the statement of Dharambir, Accountant, PW2, and, as such, it assumes much significance. When the accused, had not been allotted the residence aforesaid, nor he was residing, in the same, and, on the other hand, the same, had been allotted, to Hari Ram, BDPO(I), the question of allegedly keeping the amount of Rs. 10,000/-, aforesaid by the accused underneath the matters of the bed, in a room of that house, did not at all arise. Anybody could keep that amount there. Since no recovery of alleged bribe money was effected from the accused, it appears that, he was apparently falsely implicated, for the reasons, which would be discussed, in the subsequent paragraphs.
18. According to Ram Avtar, complainant, and, Dhan Singh, PW7, an amount of Rs. 10,000/-, as gratification, other than legal remuneration, was paid, to the accused, by the complainant. Had the same been paid, to the accused, then his hands, would have certainly been got washed in the water contained in a tumbler, as a result whereof, the fingers of his hands, would have become pink and the solution, would have also turned pink. No such procedure, was adopted, by the Investigating Officer. Had such a procedure been adopted, by the Investigating Officer, then the solution, could be sent, to the Chemical Examiner and the result could come, as to whether, the same contained phenol-pathelein powder or not. In the absence of adoption of such a procedure, which is normally adopted, in trap cases, under the Act, the case of the prosecution became highly doubtful.
19. The Counsel for the respondent, however, submitted that, Criminal Appeal No. 714-SB of 1996 16 presumption, under Section 20(1) of the Act, could be raised, against the accused, as the tainted currency notes, were recovered, from underneath the mattress, lying in the room, being occupied by him. He further submitted that, once the currency notes, were recovered, from the accused, it was for him, to explain, as to how, the same came into his possession, which were earlier in possession of the complainant. The submission of the Counsel for the respondent, in this regard, does not appear to be correct. 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 (2) of the Prevention of Corruption Act, 1988), the question, with regard to the interpretation and scope of Section 4 (1) of the Prevention of Corruption Act, 1947 (now Section 20 of the Prevention of Corruption Act, 1988), 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.Criminal Appeal No. 714-SB of 1996 17
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 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 20(1) of the Act, beyond a reasonable doubt. In the instant case, it has been held above, that the prosecution, miserably failed, to prove, beyond a reasonable doubt, the initial and the second demand of gratification, other than legal remuneration, by the accused, from the complainant. It has also been held above, that the room of the house, wherefrom, the tainted currency notes, were recovered, had not been allotted, to the accused, nor he was occupying the same, but, on the other hand, it had been allotted, to Hari Ram, BDPO(I), who was residing therein. Under these circumstances, it could not be said, that the accused, was found in possession of the tainted currency notes. If the tainted currency notes, were recovered, from a room, which had been allotted, to somebody Criminal Appeal No. 714-SB of 1996 18 else, then the accused, could not be attributed any knowledge, with regard to the same. The accused, was, thus, able to rebut the statutory presumption, operating under Section 20(1) of the Act. No help, can be drawn, by the Counsel for the respondent, from Tarlok Chand Jain's case (supra).
20. In Raghbir Singh Vs. State of Punjab, AIR, 1976 (SC), 91, the principle of law, laid down, was to the effect, that the officers functioning in the Anti-Corruption Department, must seriously endeavour to secure really independent and respectable witnesses, so that the evidence, in regard to the raid inspires confidence, in the mind of the Court, and the Court is not left in any doubt, as to whether, or not, any money was paid to the public servant, by way of bribe. They should insist on observing this safeguard, for the protection of public servants, against whom a trap, may have been laid. The principle of law, laid down, in this case, is fully applicable, to the facts of the instant case. In the instant case, at the time of the alleged recovery, Dhan Singh, Naib Tehsildar, PW7, Arun Kumar, IAS, at the relevant time the Sub Divisional Magistrate, PW6 official witnesses and the complainant, were present. No attempt, was made, by the Investigating Officer, to join an independent witness, at the time of the alleged raid and recovery. Kuldeep Singh Sihag, Deputy Superintendent of Police, PW8, the Investigating Officer, did not state even a single word, that any attempt, was made, by him, to join an independent witness, so as to provide strength, to the case of the prosecution, based on the evidence of the interested witnesses. A specific plea, was taken, by the accused, Criminal Appeal No. 714-SB of 1996 19 in his statement, under Section 313 Cr.P.C., as under:-
On 26.5.1993, I sent an information to the police for registration of the case under Sections 406/409 IPC against one Ganpat who was Ex. Sarpanch of the Panchyat of Noshawa, Tehsil Charkhi Dadri, in which the amount misappropriated was more than Rs.55000/- . This man was close to one Ran Singh Mann, Ex. Chief Parliamentary Secretary of Haryana in the Haryana Cabinet. Earlier there was altercation between me and Ran Singh Mann because he wanted that I should not lodge the report with the police. Jag Ram Mann, real brother of Ran Singh Mann was working under me as Panchayat Officer. Jag Ram Mann gave whole of the information to Ran Singh Mann and I was threatened by the latter of dire consequences with regard to may career and service. Devender Singh, A.D.C., Bhiwani, had some close relations on the maternal side in village Kheri Boora. He was also having bhaichara relationship with Ran Singh Mann. Village Kheri Boora is at a distance of about 10 kms. from Dadri. A.D.C., used to visit the village off and on as well as the house of Ran Singh Mann.
I proposed the construction of about 50 shops belonging to the Samiti concerned in the shape of a market and intended construction of 17 shops in first phase. S.D.M., Ch. Dadri, Shri Arun Kumar was opposed to this proposal and as the Samiti was bent upon constructing the shops, I requested Shri Arun Kumar to have discussion with the Chairman of the Samiti.
On 28.5.1993 when I requested the Deputy Commissioner to lay the foundation stone of this shopping complex of Panchayat Samiti, Shri Arun Kumar felt more offended and annoyed. The Deputy Commissioner gave the tentative date of 9.6.1993 or 10.6.1993 for the purpose.
Arun Kumar S.D.M. wanted to develop a market on the land of Ram Avtar Ram Criminal Appeal No. 714-SB of 1996 20 Kishan and Ram Kumar Saini. It is same Ram Avtar who is complainant in the present case. Prior to this, the S.D.M. had inaugurated 176 shops in Charkhi Dadri across the railway crossing. These shops were on the side of the Cement Factory situated in Dadri and the demands of trucks being also on that very side of the factory. S.D.M. was having monetary interest in this project of 220 shops of unauthorized auto Market complex on the land of Ram Avtar etc. complainant party because the S.D.M. was to get commission from that project. As the shops of the Samiti would have been hurdle in the sale of the plots of Ram Avtar, Ram Kishan etc. therefore, he was annoyed with me. S.D.M. had sanctioned the plans of that shopping complex of the shops of Ram Avtar etc. without the approval of the Director, Town and Country Planning. The Town and Country Planning Department also had correspondence and forbade the construction of the said shopping complex.
21. From this plea, taken up, by the accused, in his statement, under Section 313 of the Code of Criminal Procedure, it is clearly proved, that Arun Kumar, Sub Divisional Magistrate, was inimically disposed towards him, as he was having monetary interest, in the project of 220 shops of unauthorized Auto Market Complex, on the land of Ram Avtar etc., complainant party, because he was to get commission from that project. It was also specifically stated, by the accused, in his statement, under Section 313 of the Code of Criminal Procedure, that as the shops of the Samiti, would have been a hurdle, in the sale of the plots of Ram Avtar, Ram Kishan etc., therefore, the Sub Divisional Magistrate, was annoyed with him, and, had sanctioned the plans of that shopping complex of Ram Avtar etc.,without the approval Criminal Appeal No. 714-SB of 1996 21 of the Director, Town and Country Planning. The Town and Country Planning Department, also had correspondence and forebade the construction of the said shopping complex. The plea, taken up, by the accused, clearly goes, to prove, that the relations between him and Arun Kumar, IAS, at the relevant time, the Sub Divisional Magistrate, were strained. The possibility, in these circumstances of false implication of the accused, in the instant case, in the absence of independent corroboration, could not be ruled out. Had any explanation been furnished, by the Investigating Officer, that he attempted, to join a public witness, but he refused to join the raid, the matter, would have been different. In the absence of any effort, having been made by the Investigating Officer, in joining a public witness, despite availability, especially when, the other evidence, does not inspire confidence, in the mind of the Court, and the accused, has levelled specific allegations, against Arun Kumar, IAS, at the relevant time, the Sub Divisional Magistrate, a serious doubt, is cast, on the prosecution story.
22. No other point, was urged, by the Counsel for the parties.
23. In view of the above discussion, it is held, that the judgement of conviction and the order of sentence, are not based, on the correct reading and due appreciation of evidence, as also law, on the point. Had the trial Court, taken into consideration, the aforesaid infirmities and lacunae, it would have certainly come to the conclusion, that the prosecution, had failed, to prove its case, beyond a reasonable doubt. The findings, recorded by the trial Court, recording conviction and awarding sentence, to the accused (now appellant), are perverse Criminal Appeal No. 714-SB of 1996 22 and illegal, and, as such, liable to be set aside.
24. For the reasons recorded above, the appeal, is accepted.
The judgement of conviction and the order of sentence, rendered by the trial Court, are set aside. The appellant is acquitted of the charge framed against him. If the appellant is on bail, he shall stand discharged of his bail bonds. If he is in custody, he shall be set at liberty at once, if not required in any other case.
25. The concerned Chief Judicial Magistrate, shall comply with the judgment, forthwith and send the compliance report, within a period of 15 days, from the date of receipt of a copy of the same.
27.04.2010 (SHAM SUNDER) Amodh JUDGE