Punjab-Haryana High Court
Pargat Singh vs The State Of Punjab on 14 May, 2009
Criminal Appeal No.1644-SB of 2004 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
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Criminal Appeal No.1644-SB of 2004
Date of Decision:14.05.2009
Pargat Singh
.....Appellant
Vs.
The State of Punjab
.....Respondent
CORAM:- HON'BLE MR. JUSTICE HARBANS LAL
Present:- Mr. Vikas Bahl, Advocate for the appellant.
Ms. R.K. Nihalsinghwala, Senior Deputy Advocate
General, Punjab.
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JUDGMENT
HARBANS LAL, J.
This appeal is directed against the judgment/ order of sentence dated 19.8.2004 passed by the Court of learned Special Judge, Sangrur whereby he convicted and sentenced Pargat Singh accused- appellant to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/- and in default of payment of the same to further undergo rigorous imprisonment for six months under Section 13(1)(e) and 13(2) of the Prevention of Corruption Act, 1988 (for brevity, `the Act').
The facts in brief are that Mr. Barjinder Kumar Uppal SP, Vigilance Bureau, Patiala received an information that Inspector Pargat Singh (referring to the accused- appellant) previously posted as SHO, Police Station Sehna, District Sangrur had amassed money from illegal sources and he had assets exceeding his known sources of income. On 9.3.1995, he Criminal Appeal No.1644-SB of 2004 -2- purchased a plot for a sum of Rs.1,52,010/- in the name of his wife Rajinder Kaur, a .12 bore gun valued at Rs.5,000/- and a colour television in the sum of Rs.10,200/- and had also maintained a bank account in the name of his wife. Thus his known income from all sources during the period in question was Rs.2,27,813/- but his expenses/ assets valued at Rs.3,09,435/-. The case was registered against the accused in Police Station Vigilance Bureau, Patiala. During investigation, it was found that he was having assets exceeding his known sources of income by Rs.3,33,330/-. After completion of investigation, the charge-sheet was laid in the Court for trial of the accused.
The accused was charged under Sections 13(1)(e) and 13(2) of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution examined PW1 Joginder Singh, Senior Assistant of the Office of IG Commando Patiala, PW2 Makhan Singh Constable, PW3 Subhash Chand, Arms Clerk, PW4 Hardeep Singh, Clerk, PW5 Jagjit Singh Clerk, PW6 Ramesh Kumari Record Keeper, PW7 Head Constable Harbans Singh, PW8 Balwinder Singh, PW9 ASI Ajaib Singh, PW10 M.S. Bedi, Manager State Bank of Patiala, Sangrur, PW11 Mandip Singh SP Headquarter Sangrur Investigator, PW12 Roshan Lal and closed its evidence by giving up Mr. B.K. Uppal, SP Vigilance, Patiala. When examined under Section 313 of Cr.P.C., the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and came up with the plea inter-alia that the prosecution agency did not take into consideration my other sources of income, though I have been respectfully requesting for the same.
Criminal Appeal No.1644-SB of 2004 -3-
In his defence, he examined DW1 Bhupinder Singh, Pay Clerk of SSP Office, Barnala, DW2 HC Jaswinder Singh, DW3 Jagga Singh, DW4 Ajaib Singh, DW5 Telu Ram, DW6 Ram Singh, DW7 Darshan Singh, DW8 Surinder Singh, DW9 Bhura Singh, DW10 Bharat Dass, DW11 Balwinder Singh, DW12 Gurmej Singh, DW13 Sushil Kumar Jain, Deputy Head Cashier State Bank of Patiala Main Branch Sangrur, DW14 HC Bahadur Singh and DW15 Pargat Singh (accused himself).
After hearing the learned Additional Public Prosecutor for the State, the learned defence counsel and examining the evidence on record, the learned trial Court convicted and sentenced the accused as noticed at the outset. Feeling aggrieved with his conviction/ sentence, he has preferred this appeal.
I have heard the learned counsel for the parties, besides perusing the record with due care and circumspection.
Learned counsel for the appellant maintained with great eloquence that the Investigator has deducted the saving to the extent of 3/4th without any basis though in view of Dalip Singh v. State of Punjab, 2003 (4) Recent Criminal Reports (Criminal) 464, it should have been 1/3rd. He further puts that according to PW11 Mandip Singh, the income of the accused- appellant during the check period from 1.4.1990 to 31.3.1995 was Rs.2,44,458/- and he had purchased plot in the name of his wife for Rs.1,52,010/-, a television for Rs.10,200/-, a gun for Rs.5,000/- totalling Rs.1,67,210/- and on calculating the saving at the rate of 1/3rd, works out to Rs.81,486/- and it is apt to be borne in mind that as per own evidence of the prosecution, the price of television as well as the gun was not paid and thus, Criminal Appeal No.1644-SB of 2004 -4- it comes out that the expenditure was well within the disclosed sources of income during the check period. The plot was purchased in the name of his wife for the said amount. It is well settled that the person in whose name, the property is purchased is the real owner of the same, unless and until the evidence is rebutted by the prosecution, as so observed in re: Amarjit Singh v. State of Punjab, 1991(1) Recent Criminal Reports (Criminal)
253. It is not the case of the prosecution that this plot has been purchased by the accused- appellant as a benami, nor evidence in support of such fact has been adduced. Such being the circumstances, the price of plot could not be counted towards his income from the known sources. Furthermore, the accused- appellant had been a distinguished Kabaddi player and had received total sum of Rs.3,38,700/- from various Clubs as Kabaddi player. The learned trial Court has ignored this amount while counting income from this source, though the witnesses examined in defence by the accused- appellant have produced various certificates issued in his favour. As is borne out from the evidence of DW3 Jagga Singh, the accused- appellant used to retain the sale proceeds of his (Jagga Singh) crop with his (Jagga Singh) permission. The appellant used to share his income with Jagga Singh from Dairy being run by him. To crown it all, there is no allegation by any person that the accused- appellant had ever demanded bribe money from him for doing an illegal work or for misusing his official position. The accused- appellant was recruited as a constable and he rose to the rank of DSP due to the meritorious record of his service.
To controvert these submissions, Ms. R.K. Nihalsinghwala, learned Senior Deputy Advocate General pressed into service that if the Criminal Appeal No.1644-SB of 2004 -5- accused- appellant had received the alleged amount as prize money from certain clubs, it was incumbent upon him to have informed the department thereabout and was further required to have shown the same in his income tax return and there being no such evidence, it is very difficult to account for his such money towards his income during the check period. She lastly urged that on the basis of the statement of Mandip Singh SP Headquarter Sangrur PW11, the prosecution case stands abundantly established.
On giving a deep and thoughtful consideration to the rival contentions, the view I am disposed to take is that the contentions raised on behalf of the accused- appellant are sustainable for the discussion to follow hereunder:-
The check period runs from 1.4.1990 to 31.3.1995. The allegations against the accused- appellant are that he had purchased one plot in the name of his wife for Rs.1,52,010/-, one television for Rs.10,200/-, one gun for Rs.5,000/-. Mere acquisition of property does not constitute offence. Failure to satisfactorily account for such possessions is offending to law. In case of assets possessed by public servants disproportionate to their known sources of income, the prosecution should first prove the known sources of income and property in possession of public servants. Only after the prosecution has proved the ingredients, burden to satisfactorily account for possession of the resources or property shifts to the accused, as ruled by the Apex Court in re: M. Krishna Reddy vs. State Deputy Superintendent of Police, Hyderabad, wherein there was also an allegation of the prosecution that the accused was owner of certain amount, which was lying in the account of another person. It was held that the Criminal Appeal No.1644-SB of 2004 -6- burden to prove benami lies on the prosecution. In the present one, it is not the prosecution case that the accused- appellant has purchased plot by way of benami transaction in the name of his wife Rajinder Kaur. There being no such allegations, it would be going too far to call upon the accused- appellant to account for the purchase money of such plot. In re: Amarjit Singh (supra), there were allegations against the accused that he had purchased plots as benami. One was in name of father and the other one was in the name of his wife. It was held that the value of the plot purchased in the name of wife was Rs.14,000/- which the accused could pay. It was further observed that "Moreover, law is that the person in whose name the property is purchased is the real owner of the property unless and until the evidence is rebutted by the prosecution." Herein, it bears repetition that neither it is the case of the prosecution that the accused- appellant has purchased this plot as benami in the name of his wife nor adduced any evidence in rebuttal of this fact. Thus, as per law, his wife is the real owner of such plot purchased vide sale deed Ex.PG dated 9.3.1995. This fact has gone unrebutted by the prosecution. Consequently, in view of the afore- referred law, the price of this plot, i.e., Rs.1,52,010/- cannot counted towards the savings of the accused- appellant.
It is in the evidence of PW8 Balwinder Singh that "In the year 1991, "I sold one television make Texla coloured in the sum of Rs.10,200/- to Inspector Pargat Singh. I have no bill with me. No receipt was given." It is in his cross-examination that "I have not received the price of television so far from Pargat Singh." On evaluating this piece of evidence, it transpires that this amount has not been paid off. As such, it cannot be counted Criminal Appeal No.1644-SB of 2004 -7- towards the savings of the accused- appellant. It is in the statement of PW12 Roshan Lal that "I was holder of Arms licence and I was owner of a gun which was entered in my that licence. About more than ten years ago, I sold that gun to Pargat Singh accused present in the Court for about Rs.4,000/- but I do not remember the exact amount. I did not sell it to him for Rs.5,000/-. He had however, not paid me even Rs.4,000/-." This witness was got declared hostile. When he was cross-examined by the learned public prosecutor for the State, he did not budge even an inch from his firm stand. It is in his cross-examination that "When I sold gun to the accused, terrorism was at the peak in the State. I did not want to retain the gun due to its fear of being snatched by the terrorists or they may not harm any member of family including myself both bodily and financially." Firstly, the prosecution has accounted for a sum of Rs.5,000/- on account of the purchase of gun by the accused- appellant, whereas according to this witness, he had sold the same for Rs.4,000/- which has also not been paid to him by the accused - appellant. So, this amount also cannot counted towards the saving of the accused- appellant.
PW10 M.S. Bedi, Manager, State Bank of Patiala, Sangrur has testified that "I have brought the original ledger record pertaining to the saving bank account No.38138/- which is in the name of Smt. Rajinder Kaur wife of Pargat Singh resident of Village Sudaranpur, District Patiala. This account was opened on 23.4.1993 after depositing Rs.5,000/-. There are entries of deposit of Rs.40,000/- dated 27.4.1993, Rs.55,000/- on 21.5.1993 and Rs.1,60,000/- on 9.6.1993. According to this ledger account, there is the entry on 1.9.1993, vide which the FDR for a sum of Rs.2,60,000/- was Criminal Appeal No.1644-SB of 2004 -8- prepared by withdrawing the amount from this account." It is in his cross- examination that "This FDR was ultimately withdrawn on 4.3.1995 and amount of maturity at that time was Rs.1,05,513. If the matter is viewed in the background of the observations rendered by the Apex Court in re: M. Krishna Reddy (supra), this amount lying in the account of Rajinder Kaur cannot be deemed to be benami of the accused- appellant.
It is in the cross-examination of Mandip Singh, SP Headquarter Sangrur, PW11 that "His (referring to the accused- appellant) expenditure during check period from out of his pay, as assessed time is 3/4th of his total pay, i.e., Rs.1,49,593/-. It is as per the fixed rule of Vigilance department. I cannot quote the rule, but rule is there. I cannot say if it is a statutory rule or not. I have gone through that rule. It is in the departmental instructions. I cannot say if accused can maintain himself, his children and his status only with 1/4th of his salary." Obviously, this witness has regretted his inability to quote the rule. If such rule is taken to be a departmental instruction, the same not carrying the statutory flavour can be hardly taken into consideration. In re: Dalip Singh (supra), there was allegation against the accused that he possessed assets disproportionate to his income. It was observed that "Similarly, may be the saving are deducted according to the rules to the extent of 1/3rd but at the same time, again, there cannot be any hard and fast rule in this regard as well. It depends upon the constitution of the family." Thus, in view of these observations, the savings of the accused- appellant could be 1/3rd, whereas the same has taken to be 3/4th by the investigating officer in this case. A startling feature in this case is that Mandip Singh SP Headquuarter (sic.) deposed that during the check period, Criminal Appeal No.1644-SB of 2004 -9- income of the accused was Rs.2,44,458/- from his known sources of income though by taking a somer-sault, he stated in his cross-examination that during check period, his total known salary/ income was Rs.1,99,458/-. A careful delving into the oral as well as documentary evidence of this case, would reveal that the prosecution has no firm stand with regards to the exact income of the accused- appellant from his known sources. Somewhere, it has stated that such income was Rs.2,44,458. Elsewhere, it has been stated to be Rs.1,99,458/-. It clearly indicates that the prosecution indeed was groping in the dark. In such a sorry state of affairs, it would be undesirable to place reliance upon the adduced evidence.
The case was registered on the basis of information that when the accused was posted as SHO Police Station Sehna, District Sangrur, he has amassed money from illegal sources, whereas Mandip Singh Investigator has deposed in his cross-examination that "I do not remember, if I made inquiries regarding the period, the accused remained posted as SHO Sehna during the check period or not. During my investigation, nobody appeared before me to make a statement that from that particular person or which particular person accused collected illegal money. I knew the accused is a sportsman." If there was reliable information that during the check period, the accused- appellant as IO, SHO Police Station Sehna had amassed money from illegal sources, it was imperative upon the investigator to have made inquiries from Sehna. Strangely enough that he has faltered to give a specific reply on this aspect. It is also in the cross- examination of the investigating officer that "during check period, the accused had received some departmental prize/ reward of Rs.45,000/-, Criminal Appeal No.1644-SB of 2004 -10- which had been taken into account by him while assessing his income." One thing is clear from this evidence that the accused- appellant was rendering meritorious services in the department.
It is in the evidence of Ajaib Singh DW4 that "I am President of Deshmash Sports Club Jakhepal District Sangrur. I have also seen certificate Ex.DW4/2 which was issued as a token of respect to Shri Pargat Singh Inspector, who was honoured by our Club on 21/22/23.1.1991 and the Inspector attended the games of the kabaddi and the club awarded him Rs.5100/- as his service for the game." It is in the evidence of DW6 Ram Singh that "I am President of Mahanvir Sports Clunb, Dhandoli Khurd. In the year 1990, kabaddi tournament was held in our village from 28.1.1990 to 30.1.1990 in which Pargat Singh accused present in Court, was honoured on behalf of the Club by giving him Rs.4,100/- and our club has issued the certificate Ex.DW6/A which is signed by me and also Jaspal Singh Secretary of Club, whose signatures, I identify as I have seen him signing and writing and next year, i.e. 1991 on the same dates, the club had held 20 tournaments in the village and Pargat Singh Inspector was also invited in those tournaments as our players also exercised kabaddi game on his instructions. In the year 1991, our club had given Rs.5100/- on his services to the Club and being international player of club and club had issued certificate Ex.DW6/B in token of payment of amount to Shri Pargat Singh. Ex.DW6/B is signed by me and also by Jaspal Singh Secretary. In the same manner, the Club had held tournament of kabaddi in the year 1992, 1993 and 1994, 1995 and every year. Shri Pargat Singh was invited as an international player and kabaddi coach in the said tournaments and our club Criminal Appeal No.1644-SB of 2004 -11- had paid Rs.5100/- in the year 1992, Rs.5100/- in the year 1993, Rs.6100/- in the year 1994 and Rs.11,000/- in the year 1995 and our club had issued certificates Ex.DW6/C, Ex.DW6/D, Ex.DW6/E, Ex.DW6/F which are signed by me and Jaspal Singh, Secretary of Club, whose signatures I identify as I have seen my writing and signing." It is in the evidence of DW7 Darshan Singh that "There is Naujwan Sports Club in Village Gharachon and I am the President of said Club. I am kabaddi player. We held kabaddi tournaments from the year 1970-1971 every year. On the tournament Rs.3100/- in the year 1990, Rs.5100/- in 1990, Rs.5100/- in 1992, Rs.11,000/- in 1993, Rs.11,000/- in 1994 and Rs.11,000/- in 1995 were paid to Pargat Singh as his honour being invitee in the tournament on behalf of the club. I have seen certificates Ex.DW7/A to Ex.DW7/F signed by me as President of the Club. It is in the statement of DW8 Surinder Singh that "I am Cashier of the Malwa Kheti Sports Club, Jakhepal. In the year 1990, he (referring to the accused- appellant) was awarded Rs.3100/- in the year 1991 Rs.5100/- in 1992 Rs.5100/- in 1993 Rs.11,000/- in 1994 Rs.11,000/- and in 1995 Rs.15,000/- on behalf of the club on occasion of kabaddi tournaments in our village. The Club has issued certificates Ex.DW8/A to Ex.DW8/F which are signed by me as Cashier of the club. I identify the signatures of Hakam Singh President and Balwinder Singh Secretary of our Club thereon, who have signed in my presence and I identify their signatures as I have seen them writing and signing." It is in the evidence of Bhura Singh DW9 that "There is club known by the name of Yuvuk Sewawan Club Dhilwan, District Sangrur of which I am President. We used to invite Pargat Singh on the occasion of kabaddi matches besides Criminal Appeal No.1644-SB of 2004 -12- other players of kabaddi. We used to reward him for his services. The club has held kabaddi matches on 11th, 12, 13th April, 1990 and rewarded him Rs.5,100/- as the international player of kabaddi and we also invited him likewise in the years 1991, 1992, 1993, 1994 and 1995 on the kabaddi matches and rewarded Rs.5100/-, Rs.11,000/-, Rs.15,000/- Rs.21,000/- and Rs.15,000/- respectively and in token of the amount awarded to him from the years 1990 to 1995, the certificates issued by the Club are Ex.DW9/1 to Ex.DW9/6 which are signed by me and Cashier Nirbhey Singh and Secretary Naib Singh also signed the same which I identify as they signed in my presence being Cashier and Secretary of Club. It is in the evidence of DW10 Bharat Dass that "In our village there is Shaheed Udham Singh Sports Club in which we hold tournaments of kabaddi every year in our village. I know Pargat Singh who is Coach of kabaddi. I know Pargat Singh from the last 10/15 years. We used to invite Pargat Singh in each year and in the years 1990 to 1995 honoured him by paying Rs.3100/- in 1990, Rs.5100/- in 1991, Rs.4500/- in 1992, Rs.11,000/- in 1993, Rs.11,000/- in 1994 and Rs.15,000/- in 1995 regarding which the club issued certificates Ex.DW10/1 to Ex.DW10/6, which have been signed by me being President of the Club and which have also been signed by Jagsir Singh Secretary, and Jagsir Singh Cashier which I identify as they have signed in my presence."
It is in the evidence of DW11 Balwinder Singh that "I am the Vice President of Municipal committee, Malerkotla. I am also the President of District Wrestling Club, Malerkotla. DSP Pargat Singh accused present in the court, is the renowned player of kabaddi. We used to honour him in Criminal Appeal No.1644-SB of 2004 -13- each year. I being the President of club in the year 1990 to 1995 and even uptill now, I have been summoning accused to honour him at the end of the game in the year 1990, 1991, 1992, 1993, 1994, 1995. The club had given him Rs.5100/- in 1990, Rs.5100/- in 1991, Rs.7500/- in 1992, Rs.5100/- in 1993 and Rs.5100/- in 1994 and Rs.7500/- in 1995 to honour him as the kabaddi international player. Besides him, other International, National Players were also being honoured in the game. Ex.DW11/A is my affidavit duly attested from Sh. Darshan Kumar Gupta, Notary Public Sangrur which is signed by me and is correct.
Of course, there is no evidence to the effect that the accused- appellant used to inform about the receipt of the above-mentioned amounts from the respective clubs, but one thing is not to be lost sight of the fact that he has received these amounts as the prosecution has not belied the receipt of these amounts in any manner. The above referred defence witnesses could not be shattered or shaken in any manner. It is apt to be borne in mind that during the check period, the accused- appellant being not an income tax assessee could not inform the Income Tax Department. Sushil Kumar Jain, Deputy Head Cashier, State Bank of Patiala, Main Branch Sangrur DW13 has stated in the following terms:
"I have brought the record pertaining A/c No.38138 relating to Smt. Rajinder Kaur w/o Pargat Singh r/o Sardaranpur, Distt. Patiala. The certified copy of the account is Ex.DW13/A. In this account on 1.9.93 there were Rs.2,60,100/- out of which on the same day Rs.2,60,000/- was converted into FDR A/c No.15160 in the name of Smt. Rajinder Kaur after transferring Criminal Appeal No.1644-SB of 2004 -14- the amount from saving to FDR account. FDR was opened for 46 days. On 18.10.93, a new FDR for Rs.2,62,621/- including interest amount of Rs.2621/-, was prepared for further 46 days into FDR No.273285 and on 2.12.93, FDR for Rs.2,70,000/- was issued after renewing the abovesaid FDR for Rs.2,62,621/- including interest of Rs.2317/- + Rs.3500/- transferred from saving A/c of the applicant and a residual amount of Rs.1562/- was deposited by the applicant Smt. Rajinder Kaur, therefore, a total FDR of Rs.2,70,000/- was issued bearing FDR No.273536 which was subsequently matured on 17.1.94. A new FDR out of this amount, amounting to Rs.2,72,382/- bearing FDR No.273672 was issued in the name of Smt. Rajinder Kaur. On 5.3.94 same FDR was matured including interest of Rs.2403/- and total amount Rs.2,74,785/- was accrued out of which Rs.1,74,785/- was credited in saving A/c of the applicant and a new FDR No.273786 dated 21.4.94 was issued for Rs.1 lac. Against the FDR of Rs.1 lac, Rs.75,000/- loan was raised on 9.11.94 by Smt. Rajinder Kaur on 9.11.94 and same was adjusted on 10.11.94 by depositing Rs.75,137/- by the applicant including the interest amount. The abovesaid FDR of Rs.1,00,000/- was matured on 4.3.95 for Rs.1,06,605/- and same amount was credited in the saving A/c of applicant and same amount was withdrawn by the applicant. During this period, no cash amount was deposited by the account holder except the amount of Rs.1562/-. The loan amount accrued Criminal Appeal No.1644-SB of 2004 -15- Rs.137/- as interest. Now the balance in this account uptill today Rs.339.32. Ex.DW13/B is the application for opening Saving Account No.38138 which is certified copy. The certified copy of the loan account is Ex.DW13/C. Ex.DW13/D is the copy of FDR A/c No.15160. All these documents were prepared from the original ledger book and loan file and FDR account which I have brought today in court. The documents pertaining to raising of loan of Rs.75,000/- are i.e demand loan debit voucher is Ex.DW13/E, withdrawal form is Ex.DW13/F, and credit voucher is Ex.DW13/G. Last FDR voucher is Ex.DW13/H. For credit voucher of Rs.1,06,605/- and withdrawal form are Ex.DW13/J and Ex.DW13/K which all documents are certified copies which are prepared from original record of the bank."
It is in his cross-examination that "the aforesaid accounts are not related to Pargat Singh accused personally. Rs.2,60,00/- was initially deposited in the saving account in parts. Then from time to time, after adding the interest in that basic amount, FDRs were issued till Rs.1,74,785/- was credited to saving account and I cannot tell for what purpose loan of Rs.75,000/- was raised by the applicant." It is crystal clear from this evidence that the above-mentioned accounts did not pertain to the accused - appellant. Thus, this evidence operates as rebuttal to the evidence tendered by Mr. MS Bedi, PW10 Manager State Bank of Patiala. In re: Surya Sankaram Karri v. State Inspector of Police, SPE/CBI, Vishakhapatnam, 2004(3) Recent Criminal Reports (Criminal) 535, the Criminal Appeal No.1644-SB of 2004 -16- accused, a public servant possessed assets worth Rs.55,444/- in excess of resources, which was less than 10% of total income (11.74 lacs). It was held that "it cannot be held that the accused possessed assets disproportionate to his known sources of income." Thus herein if for a little while, it is assumed that the accused- appellant possessed assets a little bit in excess of his disclosed sources of income, though it is not so, despite that in view of the afore-extracted observations, it cannot be held that he possessed assets disproportionate to his known sources of income.
No other material point has been argued or agitated by either counsel.
In the ultimate analysis, this appeal succeeds and is accepted setting aside the impugned judgment/ order of sentence. The accused- appellant is hereby acquitted of the charged offence by giving benefit of reasonable doubt.
May 14, 2009 ( HARBANS LAL ) renu JUDGE Whether to be referred to the Reporter? Yes/No