Punjab-Haryana High Court
Jagat Ram vs Cbi on 10 May, 2017
Author: A. B. Chaudhari
Bench: A. B. Chaudhari
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-No.1192-SB OF 2002
DATE OF DECISION : 10th MAY, 2017
Jagat Ram
.... appellant
Versus
Central Bureau of Investigation
.... Respondent
CORAM : HON'BLE MR. JUSTICE A. B. CHAUDHARI
****
Present : None for the appellant.
Mr. Sumeet Goel, Advocate, Retainer Counsel for CBI.
****
A. B. CHAUDHARI, J.
1. Being aggrieved by the order dated 22.07.2002 passed by
Special Judge, Chandigarh in C.C. No.116/3/26.3.96/12/7/2K by which
the appellant was convicted for offence under Section 7, 13(1)(d) read
with 13(2) Prevention of Corruption Act, 1988 and sentenced to undergo
rigorous imprisonment for a period of two years and fine of `1000/- for
each offences and in default to undergo further imprisonment for a period
of detention already undergone by him.
Facts:
2. Briefly stated the prosecution case is that the appellant-
accused Jagat Ram was posted as Director Postal Services, Punjab Circle
in the office of the Chief Post Master General, Sector 17, Chandigarh.
He had demanded `10,000/- as bribe amount in two installments from
Ms. Suman, Manager and Harish Nanda, Managiner Director of Pearless
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Electronics Private Limited for not returning the material i.e. the postal
repellers and not claiming any recovery from them as per the guarantee
clause. Out of the agreed amount `10,000/- installment of `5,000/- was
paid on 02.12.1994 and balance was to be paid on 05.12.1994. Case was
registered against the appellant-accused on the basis of the written
complaint of Ms. Suman and Mr. Harish Nanda. Thereafter, a trap was
arranged and the trap party caught the appellant while collecting `5,000/-
from the complainant at Ghazal Restaurant where the appellant-accused
had called them for receiving balance amount of `5,000/-. The necessary
documentation was made after arrest of the appellant was made.
Investigation was completed and thereafter challan was filed in the trial
Court. The appellant was put on trial and the trial court finally convicted
him.
Arguments:
3. In support of the appeal, the learned counsel for the
appellant contended that the prosecution had failed to prove its case of
demand and acceptance by the appellant by legal and proper evidence
and, therefore, the appellant was entitled to be acquitted. He then
contended that appellant had examined defence witnesses who had
clearly stated enmity between the complainant Suman as her uncle who
was working under the appellant was chargesheeted by the appellant in
number of departmental cases and that is why in order to take revenge the
trap was arranged by Suman on the instructions of her uncle. Further the
evidence to that effect has been completely ignored by the trial court.
The learned counsel for the appellant then submitted that the prosecution
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miserably failed to prove the demand and acceptance and at any rate the
conviction could not have been recorded. He then submitted that the trial
court did not even frame any point for determination and proceeded to
decide the case in haphazard manner. He then prayed for acquittal of the
appellant-accused or in the alternative for remand of the case to the trial
Court since according to him the trial court has not framed any point for
determination.
4. Per contra, learned counsel for the CBI opposed the appeal
and submitted that the order and judgment made by the trial Court is a
detailed judgment considering each and every piece of evidence led by
the prosecution as well as the defence and, therefore, there is no reason to
interfere with the impugned judgment of conviction. He also submitted
that the trial court has given weighty reasons for recording conviction
and, therefore, the conviction is required to be maintained. He also
invited my attention to the evidence of the sanctioning authority and
submitted that there is documentary and oral evidence regarding sanction.
This court itself can look into it and decide the same rather than making
an order of remand. He prayed for dismissal of the appeal.
Consideration:
5. I have heard learned counsel for the parties at length and
perused the entire evidence tendered by the prosecution. I have perused
the reasons recorded by the learned trial Judge for holding that there was
demand and acceptance by appellant and has also hold that sanction was
accorded by the authority according to law.
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6. It is indeed strange that in the entire judgment the trial court
did not frame a single point for determination. It went on to decide the
case without framing any point for determination. It is the trite law that
the trial court ought to frame points for determination and then record
answers on those points for determination. There is a failure on the part
of the trial court in the present case in that behalf.
7. Be that as it may. Looking to the fact that the occurrence
took place in the year 1994, I am not inclined to make any remand order
on any count whatsoever, since conclusion can be drawn on the evidence
on record.
8. Insofar as the aspect of demand and acceptance is
concerned, after perusal of the entire evidence and after comparing
findings of the trial court, I am inclined to agree with the findings
recorded by the trial court that the prosecution has proved the demand
and acceptance through the evidence of the witnesses beyond any doubt.
Following are the reasons recorded by the trial court for the said purpose.
"19. PW15 Nagar Mal was posted as Superintendent
Circle, stamp Depot, Ludhiana. He proved supply
order of three pest repellers as Ex.PW15/1. He
further proved letters dated 22.1.94 and 24.6.94
Ex.PW15/2 and PW15/3 respectively. TA bill file
of the accused Ex. PW15/4 has been proved by this
witness. TA bills are Ex. PW15/5 to PW15/16,
prosecution by stating that she and Darshan Ram
had reached the office of CBI where Sh. Surjan
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Singh DSP introduced to them with Miss Suman
and Harish. They were further told that accused
was demanding the bribe. Miss Suman talked to the
accused on telephone and that talk was taped. She
indentified her signatures on the conversation
transcript as Ex. P53. She further proved that
accused asked Suman as to whether she had brought
the money that was demanded from her earlier by
him and that she told that she had arranged the
amount of Rs.5000/-. This witness further
corroborated the fact that accused accepted the
bribe of money of Rs.5000/- and amount was
recovered from him. Similarly, she supported the
story on the material particulars.
xxx....... xxx....... xxx....... xxx.......
21. PW17 Smt. Suman is one of the complainant. She
proved her complainant Ex.PW13/A and narrated
the prosecution story concerning her regarding the
demand of bribe and acceptance of the tainted
money of Rs.5000/- by the accused and the
recovery of it from the accused.
22. PW18 is V. K. Anand who was Inspector CBI on
2.12.94. His statement is that complaint of Suman
and Harish Nanda was handed over by him to the
Superintendent of Police who ordered the
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registration of the case. After making endorsement
Ex. PW18/A and FIR Ex. PW10/1 was recorded.
He further gave details of the investigation part of
the story.
23. PW19 Om Parkash is the Investigating Officer of
this case. He reiterated the investigating part of the
story as has been given in para No.2 of this
judgment. He prepared rough site plan Ex.PW19/A.
Ex.PX is the report from the Forensic Science
Laboratory according to which two sealed glass
bottles gave positive test for phenolphthalein and
sodium bicarbonate.
xxx....... xxx....... xxx....... xxx.......
37. Accused had admitted in statement u/s 313 Cr.P.C.
that he was posted and was functioning as Director
Postal Services. He further admitted that orders for
pest repellers were issued under his verbal
instructions. His next admission is that final
authority for making purchases for the post offices
under the charge of Director Postal Services is the
Director only if the amount of purchase exceeds
Rs.500/-. According to him orders were placed by
Om Parkash Talwar, Superintendent Post Offices on
his formal approval. In such a situation it is clear
that pest repellers were purchased from M/s.
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Pearless Electronics pvt. Ltd on the verbal orders by
different Postal Subordinate Offices. Purchases
were made not from Miss Suman under his verbal
orders but from M/s Pearless Electronics Pvt. Ltd
where Miss Suman was working as Manager
whereas Harish Nanda was working as Managing
Director. Had Miss Suman been proprietor of the
firm then there could be some weight in the defence
of the accused that he could not get the purchases
made under his verbal order from her nor could he
demand or accept illegal gratification from her on
account of the fact that he got conducted some
enquiries against her father who was working under
him. In this case she was simply a Manager of M/s
Pearless Electronics Pvt. Ltd. moreover, enmity on
account of official matters if any was with the father
of Miss Suman and not with Miss Suman who was
employed by M/s Pearless Electronics Pvt. Ltd.
there is sufficient evidence on record that Miss
Suman was called by the accused in Ghazal
Restaurant. Demand of bribe was got confirmed by
the investigating officer Surjan Singh DSP and this
fact stands corroborated from the statement of PW1
as well who deposed that on 2.12.94 he had
received telephone message from Ms. Suman that
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she wanted to talk with the accused and that he told
her that he was busy in the meeting but she insisted
requesting him again to call him saying that she had
some urgent talk. PW1 sent message to the accused
in the Chamber of Chief Post Master General where
he was present and that accused came to his seat
and heard the telephone and that accused present in
the Court then talked on telephone. This
conversation was taped and transcript of the cassette
is Ex.P53. If the accused was not to accept the
bribe through Miss Suman Manager of the firm at
Ghazal Restaurant knowing fully well that she is the
daughter of Bachan Singh he would not have called
her at the Restaurant. Question as to why he did not
accept bribe in the building where father of Suman
was putting up is well within the knowledge of the
accused and it cannot be expected from the
prosecution to explain it. There is another aspect of
the case on account of which defence version falls
on the ground. It is that Harish Nanda was the
Managing Director of M/s Pearless Electronics Pvt.
Ltd. Lalita Sharma is shadow witness in the case.
Other witnesses examined by the prosecution are
Darshan Ram, V.K. Anand and Om Parkash
Investigating Officer. No convincing evidence is on
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the record that Harish Nanda, Lalita Sharma,
Darshan Ram, V. K. Anand and Om Parkash had
enmity or motive to implicate the accused falsely.
xxx....... xxx....... xxx....... xxx.......
41. After x-raying the evidence on record and
considering the rival arguments regarding variations
in the statements of the witnesses pointed out by ld.
Counsel for the accused, I am of the considered
view that they cannot assume significance in the
facts and circumstances of this case. Statements of
the material witnesses i.e. trap witnesses have been
recorded from 1997 to 2001. Accused was caught
red handed after he accepted the bribe of Rs.5000/-
on 2.12.94. After lapse of time human memory
gives way and such like variations as have been
pointed out by the ld. Counsel for the accused are
bound to occur in the statement of the witnesses.
Camera type observations cannot be expected from
human beings. On all the material issues the
statements of the witnesses are unanimous. Rather
such like minor differences indicate that witnesses
are natural and not tutored. In these circumstances,
minor discrepancies pointed out in the statements
are not suicidal to the case of the prosecution nor on
their basis version of the prosecution can be thrown
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to the waste paper basket. No material infirmity in
the statements of the material witnesses has been
pointed out to disbelieve them."
9. I agree with the findings of the fact which are based on
evidence and, therefore, I hold that the prosecution proved the demand
and acceptance. The defence failed to rebut the prosecution evidence.
Presumption arises under Section 20 of the Act regarding acceptance of
money.
10. The next important question is about the sanction for which
also no point for determination was framed. I have myself perused the
evidence of the person PW9 M. S. Mahi Pal who proved the sanction and
I have also seen the documents, in particular Ex.PW9/A, the sanction
order. The trial court has given no importance to the aspect of sanction
and has casually recorded the finding about the sanction, which cannot be
appreciated. The findings recorded by the trial court on the aspect of
sanction is as under:
"13. PW9 M.S. Mahi Pal was Dest Officer Vigilance. He
proved that sanction for prosecution was granted
against the accused by the President of India. Grant
Sanction was conveyed to CBI under his signatures
which is order Ex.PW9/A. It was sent in the name of
the Hon'ble President. He further stated that he is
competent to sign the sanction order."
11. It is the trite law that defective sanction, unproved sanction
or sanction on non-application of mind, are all fatal to the prosecution
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case under Prevention of Corruption Act. In the present case what I find
is that the prosecution miserably failed to prove the aspect of application
of mind by particular person or by any authority by tendering legal
evidence before the court that the sanction was granted after application
of mind by a particular person on behalf of the President of India. The
prosecution brought the evidence of PW9 M. S. Mahi Pal but did not
examine any official who had actually applied his/her mind and given
sanction Exhibit PW-9/A. Following is the evidence of PW-9-M. S.
Mahi Pal:
"Since September, 1995 I am posted as Dest Officer
Vigilance Deptt. Of Posts, New Delhi. Vigilance cases are
processed by me. In the present case sanction for
prosecution of the accused was granted by the President of
India to whom the entire file containing all details was sent
by our office. On receipt of sanction from President of India
regarding grant of sanction was conveyed to the CBI under
my signatures which order is Ex.PW9/A. I identify my
signatures on this order Ex.PW9/A which was sent in the
name of the president. I am competent to sign sanction
order in this case.
XXXXXX
Today I have not brought the sanction that was
originally received from the President regarding launching
of prosecution against the accused. It is incorrect that I have
deposed falsely."
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12. He is the only witness examined by the prosecution on the
question of sanction. Perusal of his evidence shows that he is a Desk
Officer, who has put the signature on the sanction order in the name of
President of India. He also admitted that he has not produced any
original order received from the President of India regarding sanction for
launching the prosecution against the appellant. In other words, the copy
made from the original sanction order was proved by him as Desk
Officer. The primary evidence was thus not produced. If his
examination is carefully perused, he does not claim that he was
authorized to grant sanction after application of mind or that he was the
authority authorized by the President to grant sanction upon application
of mind to the entire papers. He is merely a Desk Officer and not the
appointing authority. It is a well settled legal position that the
prosecution has to prove that the sanction was granted upon application
of mind by appointing authority. It appears that the competent authority
was the President but then under the delegated powers of appointing
authority or the delegate ought to have been examined to show grant of
sanction after application of mind to the entire papers. PW-9 has also not
uttered a word on the entire aspect. On the contrary, his entire evidence
shows that he has merely signed the sanction order on behalf of the
President of India. All the above manner of proving sanction is
absolutely preposterous and having no legal sanctity. In other words, in
my opinion, it is no sanction in the eye of law for launching prosecution.
The prosecution ought to have examined the superior officer to whom the
powers were delegated and who had applied his/her mind to the entire
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papers and then granted sanction under his signatures. However, that
was not done. Thus the prosecution has miserably failed to prove any
legal sanction. As earlier stated that trial court has not at all dealt with
this aspect of the matter which is the heart and soul of a case under the
PC Act.
Conclusion:
13. In that view of the matter, I find that for want of legal and
proper sanction, the prosecution case must fail. It is unfortunate that the
prosecution did not bother to bring the required evidence, documentary
as well as oral, as stated above to prove the sanction and as a sequel
allowed the appellant to go scot-free. This is how the anti-corruption
case has been conducted. In the result, I make the following order.
ORDER
(i) CRA-S-No.1192-SB OF 2002 is allowed.
(ii) Impugned judgment and order dated 22.07.2002 passed by Special Judge, Chandigarh, is set aside.
(iii) The appellant is acquitted of the charge framed against him.
(iv) Fine if any be refunded to him.
10TH MAY, 2017 (A. B. CHAUDHARI)
'raj' JUDGE
Whether speaking/reasoned : Yes
Whether Reportable : Yes
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