Punjab-Haryana High Court
Central Bureau Of Investigation vs Darshan Singh And Another on 22 January, 2013
Author: Sabina
Bench: Sabina
CRM-A No. 1253-MA of 2010 (O&M) 1
In the High Court of Punjab and Haryana at Chandigarh
CRM-A No. 1253-MA of 2010 (O&M)
Date of decision: 22.1.2013
Central Bureau of Investigation
.... applicant-appellant
Versus
Darshan Singh and another
.......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.Sumit Goel, Advocate for
CBI.
Mr.Sudhir Sharma, Advocate,
for respondent No.1.
Mr.C.S.Bakshi, Advocate,
for respondent No.2.
****
SABINA, J.
Respondents had faced trial qua commission of offence punishable under Section 120-B of the Indian Penal Code, 1860 and Sections 7 and 13 (2) read with Section 13 (1) (d) of the Prevention of Corruption Act, 1988.
The Special Judge, vide impugned judgment dated 5.6.2010 acquitted the respondents of the charges framed against them. Hence, the present application under Section 378 (4) of the Code of Criminal Procedure, 1973 has been filed by the complainant-CBI with a prayer for grant of leave to file an appeal against the judgment CRM-A No. 1253-MA of 2010 (O&M) 2 dated 5.6.2010 challenging acquittal of the respondents by the Special Judge.
Prosecution story, in brief, is that on 28.9.2007, complainant Aman Sood moved an application before the Senior Superintendent of Police, Central Bureau of Investigation alleging therein that he was running the business of commission agent at Chandigarh. Complainant used to get apples from Himachal Pradesh for sale in the city. On the said sale of apples, complainant was required to pay market fee @ 2%. On 27.9.2007, at about 11.00 A.M. Darshan Singh, official of market committee demanded bribe to the tune of ` 10,000/-. Complainant told Darshan Singh that he was paying the market fee as per rules. Darshan Singh offerred to reduce the quantity of apple boxes brought by the complainant to his shop and reduce the market fee. However, the complainant was willing to pay the full market fee on the quantity of apples brought by him to his shop. The matter was settled at ` 5,000/-.
On the basis of the statement of the complainant, formal FIR was registered and a trap was organised. The complainant was introduced to the other members of the trap team. Complainant and the other witnesses were given demonstration with regard to working of the Phenol Phthalein Powder (P-Powder for short). Complainant handed over ten currency notes in the denomination of ` 500/- each to the investigating officer, who, in turn, returned the same to the complainant after application of P-Powder. Complainant was directed to hand over the tainted currency notes to the accused on demand. Thereafter, the complainant and PW-7 Subhash Meena (shadow CRM-A No. 1253-MA of 2010 (O&M) 3 witness) went inside the office of accused Darshan Singh. Accused Darshan Singh told the complainant on phone that he was sending accused Gurminder Singh for collection of bribe money. Complainant handed over the tainted currency notes to accused Gurminder Singh. On receipt of signal from the shadow witness, the remaining raiding party reached the spot. When the hands of accused Gurminder Singh were washed in a solution of sodium carbonate, the colour of the solution turned pink. When the right pant pocket of the jeans worn by accussed Gurminder Singh was dipped in a solution of sodium carbonate, the colour of the solution turned pink. The conversation between the complainant and accused Gurminder Singh was also recorded.
After hearing learned counsel for the applicant, I am of the opinion that the present application deserves to be dismissed.
Learned Special judge, while acquitting the respondents of the charges framed against them, has observed as under:-
"35. In the instant case, it is an admitted fact that A-1 was the Mandi Supervisor-cum-Fee , Collector. As per the Bye Laws para 24 (2)(1), it was his primary duty to. collect the fee. A-2 was posted as Auction Recorder. As per para 24 (3) (7) of the Bye Laws, the Action Recorder is also required to collect the market fee where need be. It is also an admitted fact that the complainant was running the business of Commission Agent under the name and style M/s Sood Brothers in Grain Market, Sector 26, CRM-A No. 1253-MA of 2010 (O&M) 4 Chandigarh, so as per the provisions of the Act Rules and Bye Laws, he was required to pay the market fee. As per the office order Ex.PW-8/19 and Ex.PW-8/20 respectively, A-1 and A-2 were deputed in the area of the Mandi wherein the business premises of the complainant were situated.
36. Ex.PW-8/53 is the detail of the market fee received on 29.09.2007 which shows that a market fee of ` 10,008/- was due towards M/s Sood Brothers for the period w.e.f. 13.09.2007 to 29.09.2007 and this market fee has been deposited on 29.09.2,007 i.e. on the next day of this trap. Complainant Aman Sood has admitted in the cross examination that from 13.09.2007 to 27.09.2007 roundabout ` 9,000/- were due from them towards market fee. He further admitted in the cross examination that his brother Amit Sood was forced to pay the market fee due on 29.09.2007. PW-15 Inspector Jai Singh the Investigating Officer of this case has also admitted in the cross examination that on the date of occurrence a sum of ` 10,008/- was due as market fee against the firm of the complainant. He further stated that i t h a s c o m e t o h i s n o t i c e d u r i n g t h e investigation that prior to the occurrence the complainant firm has not deposited the market fee within the stipulated period of seven days and has deposited the Market fee late by approximate four CRM-A No. 1253-MA of 2010 (O&M) 5 days. He further admitted that a sum of ` 10,008/- was deposited by the complainant on the next day of the occurrence. Thus, from the aforesaid evidence it is established that on the date of occurrence the firm of the complainant was in arrears of the market fee. ` 10,008/- were due to the firm of the complainant towards market fee and that amount of ` 10,008/- has been deposited by the firm of the complainant on the next day of the trap i.e. 29.09.2007.
37. The learned Public Prosecutor has vehemently contended that the acceptance of ` 5,000/- by the accused cannot be considered to be as part payment of the market fee because the market fee can only be deposited in the office of the Municipal Committee and there is no provision in the Act, Rules and bye Laws to collect the market fee in cash from the business premises of the Commission Agents, secondly, the market fee can only be ascertained on counting of the sale which is to be reflected in form-M and the market fee has to be deposited on the basis of the form-M which has.to be submitted simultaneously in the office of the Market Committee and in this case there is no form-M and thirdly he contended that there can be no part payment of the market fee due towards a Commission Agent.CRM-A No. 1253-MA of 2010 (O&M) 6
38. On due appreciation of the evidence on record i.e. the statements of the prosecution as well as the defence witnesses, there is no escape to conclude that it has been a practice to collect the market fee due by the officials of the Market Committee by visiting the business premises of the Commission Agents in the last days of the stipulated period. The learned Public Prosecutor has not been able to point out any provisions in the Act, Rules and Bye Laws which prohibits the officials of the Market Committee to visit the business premises of the Commission Agents to collect the market fee. If a practice is followed in routine for a considerable length of period, it also attains the legal status, even though not specifically provided under the statutory rules and regulations particularly when there is no specific prohibition to that practice in the statutory rules and regulations. As already mentioned there is no specific prohibition in the Act, Rules and Bye Laws that an official of the Market Committee cannot visit the business premises of a Commission Agent, so, if this practice is being followed/adopted by the officials of the Market Committee, then it becomes an established practice followed by the concerned officials in performance of their duty andno fault can be found with that practice.
39. PW-9 Harbans Singh, Auction Recorder has CRM-A No. 1253-MA of 2010 (O&M) 7 stated in the cross examination that in the end of month i.e. on the last Friday the Secretary at times directs the Auction Recorders and Mandi Supervisors to go to the Mandi to collect the dues. He further stated that on the directions of Secretary any official/officer can go and collect the dues. PW-10 .Balwinder Singh, Mandi Supervisor has also admitted in the cross examination that 28.09.2007 was the collection date. A sum of ` 10,008/- was due as on 28.9.2007. He further admitted that in the end of the month the Auction Recorder as well as the Mandi Supervisor visit the field to collect the money to meet the target. PW-12 G.R.Pillai, Assistant Secretary, market Committee had replied to a court question put by my learned predecessor that as per the Boli Bahi (auction book Ex.PW-2/1 a total market fee payable by Sood Brothers as on 28.9.2007 was ` 9,992,70 ps with respect to apples. This witness has specifically stated in the cross examination by the learned Public Prosecutor that it is wrong to suggest that Auction Recorder and Mandi Supervisor were not competent to collect the market fee from the Commission Agents at their shops/platforms. He further deposed that as per Rules 29 (3) the fee can be paid to the Committee or to a paid officer duly authorised to receive such payment. He further deposed that it is the duty of the market supervisor CRM-A No. 1253-MA of 2010 (O&M) 8 to ensure that every Commission Agents deposit the market fee within seven days from the date of t r a n s a c t i o n . H e h a d been issuing verbal directions to the Mandi Supervisor every week to ensure the payment of market fee by the Commission Agents. He further categorically stated that in this case also he had verbally directed A-1 to ensure that, a week before 28.09.2007 as well as on 28.09.2007. He further categorically stated that he had asked the accused to collect the market fee from the Commission Agents. In the cross examination by the learned defence counsel this witness categorically stated that the procedure explained by him regarding issuance of directions to the Mandi Supervisor/Auction Recorder to collect the market fee from the Commission Agents was going on since long. This is to ensure that market fee is deposited in time. He further admitted that the verbal instructions are issued to Supervisor and Auction Recorder to collect the market fee which is outstanding by visiting the business place of the concerned defaulters and this instructions is generally given to the employees fortnightly with a view to avoid the issuance of notices to the defaulters. He further deposed that Sood Brothers were not having any office in shop No.27 and there was an intimation submitted by them in the office of Market Committee that they have CRM-A No. 1253-MA of 2010 (O&M) 9 vacated shop No. 27 on the directions issued by the Hon'ble High Court. So, on this account they have apprehension that they may flee without depositing the market fee.
40. PW-15 Inspector Jai Singh the Investigating Officer of the case has also admitted that the collection of fees from the licensees is one o f t h e d u t y o f t h e M a n d i Supervisors, but he can collect the fee from the licensees only by adopting due procedure provided under the rules to collect the market fee where needs be. He has also categorically admitted in the cross examination that he had not noticed any prohibition under the Act, Rules and Bye Laws that an official of the market committee cannot receive the market fee due in cash by visiting the office/shop of the defaulting licensees."
The learned Special Judge, after discussing the defence evidence, has observed as under:-
"46. The aforesaid oral as well as documentary evidence clearly negates the contentions of the learned Public Prosecutor and amply show that there was an established practice to collect the market fee from the defaulting Commission Agents by the officials of the market committee of the level of Mandi Supervisor and Auction Recorder by visiting their business premises. There are also the instances where the market fee was deposited first CRM-A No. 1253-MA of 2010 (O&M) 10 against the receipts and form-M used to be sometimes submitted lateron. There was also the common practice of part payment of the market fee. 4 7 . T h e d e f e n c e p l e a o f t h e a c c u s e d i s further probablised from various other circumstances. It is alleged that during the pre-trap proceeding A-1 gave a miss call to the complainant and then complainant talked to him that he had arranged the bribe money and will come to his shop, but this fact is not mentioned in the pre-trap memo Ex. PW-1/1."
The learned Special Judge, while dealing with the factum of motive available with the complainant to falsely involve the respondents, has observed as under:-
"51. In the instant case also the complainant had a motive for the false implication of the accused. PW-8 Labh Singh has stated that he identified the writing of A-1 in the encircled portion Ex.PW-2/C at page no.53 of the auction book of the complainant He further deposed that he had also measured certain enhancements in the auction book at page No.50 and 51 by adding ` 40,000/- at page no. No. 50 Ex.PW- 2/K and by adding ` 45,000/- at page No.51 Ex.PW- 2/8. In the Auction Book at page No. 53 A-1 has given a note that rate is not sufficient firm has evaded the market fee. It shows that the relations between t h e c o m p l a i n a n t a n d A - 1 w e r e s t r a i n e d . T h e version CRM-A No. 1253-MA of 2010 (O&M) 11 of the complainant that A-1 had demanded ` 10,000/- as bribe for reducing the sale is also not probable. The market fee is paid at the rate of 2%. The market fee of ` 10,000/- will become due on the sale of ` five lacs. It is alleged that this bribe was being demanded for sale of apples. This fact is also not disputed that it was a closing period for the sale of apples and there was hardly any possibility of the sale of the apples for a huge amount of ` five lacs and more. Hence this improbable version further negates the demand of bribe by A-1 and renders added strength to the probability of the defence plea that the amount in question was realised as a market fee and not as bribe."
After scrutinizing the entire evidence, learned Special Judge has held that on the day of occurrence, the complainant was in arrears of market fee to the tune of ` 10,008/-. There was a general practice in the market to collect the market fee by visiting the business premises of the commission agents on the last dates of the month. The trap was laid on the last Friday of the month. The defence plea raised by the respondents that ` 5,000/- has been accepted towards part payment of the market fee by visiting the premises of the complainant was accepted by the learned Special judge as being more probable.
While dealing with the aspect of the conspiracy between the respondents, the learned Special Judge has observed as under:- CRM-A No. 1253-MA of 2010 (O&M) 12
"57. The allegations of the prosecution that both the accused were in conspiracy with each other for extracting the bribe from the complainant is also not established at all. There is no allegation that A-2 had ever demanded any bribe amount from the complainant. As already mentioned even at the time of trap there was no conversation between A- 2 and the complainant for the demand and acceptance of the amount of ` 5000/- as bribe money. Complainant has admitted in the cross examination that before 28.09.2007. A2 never demanded any bribe from him. Even on 28.09.2007, he came and told that he has been sent by A-1 to collect the money. He also deposed that so far he recollects A-2 did not come to his auction platform with A-1 on any occasion. He did not receive any telephonic call from A-2 for the demand of bribe at any point of time. Then in the concluding portion of the cross examination PW-2 complainant Aman Sood has given a clinching admission and stated that he did not know whether A-2 knew that what he is going to receive from him was bribe, but he knew that he would be coming to accept bribe as told to him by A-1. Thus, there is no evidence to establish the element of the conspiracy."CRM-A No. 1253-MA of 2010 (O&M) 13
The reasons given by the learned Special Judge, while holding that ` 5,000/- had been accepted by accused Gurminder Singh on the instructions of accused Dalbir Singh were not, in fact, the bribe money but has been received as part payment of market fee are sound reasons and, thus, call for no interference. The prosecution had failed to establish that the said money had been accepted towards bribe by the accused in conspiracy with each other.
Their lordships of the Supreme Court in Allarakha K. Mansuri v. State of Gujarat, 2002(1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court.
A Division Bench of this Court in State of Punjab v. Hansa Singh, 2001 (1) RCR (Criminal) 775, while dealing with an appeal against acquittal, has opined as under:
"We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991(1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis-reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference."
To the same effect is the ratio of the judgments of the Supreme Court in State of Goa v. Sanjay Thakran (2007) 3 SCC 755 and in Chandrappa v. State of Karnataka, (2007) 4 SCC 415. CRM-A No. 1253-MA of 2010 (O&M) 14
Similarly, in Mrinal Das & others v. The State of Tripura, 2011 (9) Supreme Court Cases 479, the Supreme Court, after looking into various judgments, has laid down parameters, in which interference can be made in a judgment of acquittal, by observing as under:
"8) It is clear that in an appeal against acquittal in the absence of perversity in the judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. However, if the appeal is heard by an appellate court, being the final court of fact, is fully competent to re- appreciate, reconsider and review the evidence and take its own decision. In other words, law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court. If two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial Court CRM-A No. 1253-MA of 2010 (O&M) 15 with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. An order of acquittal is to be interfered with only when there are "compelling and substantial reasons", for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
When the trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts etc., the appellate court is competent to reverse the decision of the trial Court depending on the materials placed"
Learned counsel for the applicant has failed to point out any mis-reading of evidence on record by the learned Special Judge which would warrant interference by this Court. Hence, no ground is made out to grant leave to file an appeal.
Accordingly, this application is dismissed.
(SABINA) JUDGE January 22, 2013 anita