Punjab-Haryana High Court
Mahesh Kumar Gupta vs The State Of Haryana on 21 December, 2012
Author: Paramjeet Singh
Bench: Paramjeet Singh
Crl. Appeal No.1813-SB of 2003
-1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
Crl. Appeal No.1813-SB of 2003
Date of decision: 21.12.2012
Mahesh Kumar Gupta
....Appellant
Versus
The State of Haryana
....Respondent
CORAM: HON'BLE MR. JUSTICE PARAMJEET SINGH
1) Whether Reporters of the local papers may be allowed to
see the judgment ?.
2) To be referred to the Reporters or not ?.
3) Whether the judgment should be reported in the Digest ?
Present: - Mr. J.S. Bedi, Advocate, for the appellant.
Mr. Subhash Godara, Addl. A.G., Haryana.
*****
PARAMJEET SINGH, J.
The challenge in the present appeal is to the judgment of conviction dated 13.9.2003 and the order of sentence dated 15.9.2003 passed by learned Special Judge, Faridabad, whereby the appellant was convicted and sentenced under Section 7 of the Prevention of Corruption Act (in short 'the Act') to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5000/-, and in default of payment of fine, to undergo further rigorous imprisonment for a period of nine months and under Section 13 of the Act to undergo rigorous imprisonment for three years and to pay a fine of Rs.10,000/-, and in Crl. Appeal No.1813-SB of 2003 -2- default of payment of fine to further undergo rigorous imprisonment for nine months, in a case arising out of FIR No.201 dated 17.3.2001 registered under Sections 7/13/49/88 of the Act at Police Station City Ballabgarh.
The prosecution story in brief is that the accused-appellant while posted as SDO (Operation), Sub Division, City No.1 in the office of DHBVNL, Unchagaon had demanded and accepted from the complainant Madan Mohan Bansal an amount of Rs.2,000/- as illegal gratification in connection with processing his application for extension of load upto 15 KW under the VD Scheme.
On the basis of allegations as set-forth in the report under Section 173 Cr.P.C. and the accompanying documents, charges under Sections 7/13 of the Act were framed against the accused-appellant, to which the accused-appellant pleaded not guilty and claimed trial.
To prove its case, the prosecution examined M.P. Seth as PW1, ASI Kartar Singh as PW2, Jaikishan Gupta as PW3, HC Ram Kishan as PW4, DSP Amar Singh as PW5, Anoj Kumar Draftsman as PW6, complainant Madan Mohan as PW7, Rajender Parshad shadow witness as PW8, Constable Lajpat another shadow witness as PW9, Constable Sham Phool as PW10, SI Attar Singh as PW11, Dharambir Singh CTM as PW12 and DSP Raj Singh as PW13.
Statement of the accused was recorded under Section 313 Cr.P.C.. He stated that the prosecution evidence adduced against him is false and added that the complainant Madan Mohan Gupta had applied for extension of load on 13.3.2001 and on the same day he had marked the case file to Jaikishan Gupta, JE, with whom the file remained Crl. Appeal No.1813-SB of 2003 -3- pending upto 30.3.2001. He asserted that he never demanded any bribe from complainant and that no recovery was effected from his person nor any hand wash was effected and he added that he had been falsely arrested and forcibly taken by the DSP Raj Singh from his office to Ballabgarh on 17.3.2001. However, no evidence in defence was led by the accused-appellant.
The trial Court after conclusion of trial convicted and sentenced the appellant as aforesaid. Hence this appeal.
I have heard the learned counsel for the parties and perused the record.
Learned counsel for the appellant vehemently argued that the demand and acceptance of the illegal gratification is not proved. Madan Mohan complainant PW7 and Rajinder Parshad shadow witness PW8, who are the star witnesses of the prosecution have not supported the prosecution story. They have not stated that the accused-appellant had ever demanded illegal gratification or that the complainant had ever paid any money to the accused as illegal gratification. The accused had been falsely implicated. Learned counsel for the appellant has placed reliance on the judgment of the Hon'ble Supreme Court in the case of Banarasi Dass v. State of Haryana, 2010(2) RCR (Crl.) 553 to contend that when the complainant and the prosecution witnesses have turned hostile and did not support the prosecution case, then the question of demand and acceptance of bribe does not arise and as such presumption cannot be raised under Section 20 of the Act.
The above contention has been vehemently opposed by the learned State counsel by contending that at the relevant time, accused- Crl. Appeal No.1813-SB of 2003 -4- appellant was posted as SDO (Operation), Sub Divison No.1 in the office of DHBVNL. He demanded a sum of Rs.2000/- as illegal gratification from the complainant Madan Mohan for extension of load. The accused was apprehended at the spot by the police and recovery of illegal gratification was effected from him.
I have considered the rival contentions of the learned counsel for the parties and perused the record.
In the light of judgment in the case of Banarsi Dass (supra) and the statements of two hostile witnesses i.e. complainant Madan Mohan complainant PW7 and Rajinder Parshad shadow witness PW8, demand and acceptance of illegal gratification alleged to have been received by the appellant-accused, for favouring Madan Mohan PW7 for extension of load, cannot be said to have been proved by the prosecution in accordance with law. Both the witnesses have turned hostile. They have even denied their statements despite confrontation. PW7 Madan Mohan, complainant, stated that he did not meet the SDO or XEN in DHBVNL but some clerks had told him that his work would not be done without paying money. He did not identify the accused and stated that accused never demanded any money nor did he pay any money. He also denied Ex.PD complaint to the Deputy Commissioner. The complainant falsified the entire prosecution story.
Similarly, PW8, Rajender Parshad, shadow witness, stated that he was unaware of what happened during the raid as he remained outside. He also did not identify the accused and stated that no recovery was effected in his presence.
Moreover, it has also come in testimony of PW3 Jai Kishan Crl. Appeal No.1813-SB of 2003 -5- Gupta JE1, DHBVNL, that the application of the complainant for extension of load was marked to him by the accused and after the application being marked the accused had nothing to do with the complainant or the case. His statement is indicative of the fact that as accused had nothing to do with complainant's application, he had no occasion to demand bribe.
The Hon'ble Supreme Court in the case of Banarsi Dass (supra) has held in para 16 & 17, as under:-
"16. In light of the statement of two hostile witnesses PW2 and PW4, the demand and the acceptance of illegal gratification alleged to have been received by the accused for favouring PW2 by recording the khasra girdawaris in the name of her mother cannot be said to have been proved by the prosecution in accordance with law. We make it clear that it is only for the two witnesses having turned hostile and they having denied their statement made under Section 161 of the Indian Penal Code despite confrontation, that the accused may be entitled to acquittal on technical ground. But, in no way we express the opinion that the statement of witnesses including official witnesses PW10 and PW11 are not accepted by the Court. Similarly, we have no reason to disbelieve the recovery of Ex.P-1 to P-4 vide Ex.PD.
17. In the light of this we are of the considered view that the judgment of the High Court convicting the accused for the offences with which the accused was charged cannot be sustained in law."
As regards presumption under Section 20 of the Act, is concerned it would be appropriate to discuss how it applies under criminal law. In criminal law, there is a presumption of innocence in Crl. Appeal No.1813-SB of 2003 -6- favour of the accused. The prosecution must establish beyond a reasonable doubt that accused had committed the offence for which he had been charged. As a general principle, the burden of proving actus reus and mens rea lies on the prosecution. Section 20 of the Act refers to the rebuttable presumption. Rebuttable presumption in criminal law is somewhat controversial, in that it does effectively reverse the presumption of innocence. The effect of rebuttable presumption is to put the legal burden of disproof on the accused. In rebuttable presumption also the primary facts must be proved by the prosecution, thereafter the specific presumption could be drawn from them. In the present case, since both, the complainant and the shadow witness, have turned hostile so the primary facts had not been proved with regard to demand and acceptance, so mere recovery of signed tainted notes cannot lead to raising of presumption under Section 20 of the Act. The findings of the Hon'ble Supreme Court in the case of State of Kerala vs. C.P. Rao, 2011 (3) RCR (Crl.) 688 reproduced below are relevant in this regard: -
"10. In C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, reported in 2009(3) SCC 779, this Court while dealing with the case under the Prevention of Corruption Act 1988, by referring to its previous decision in the case of Suraj Mal v. State (Delhi Admn.), reported in 1979(4) SCC 725 held that mere recovery of tainted money, divorced from the circumstances under which it is paid, is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused. In the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe conviction cannot be Crl. Appeal No.1813-SB of 2003 -7- sustained."
In view of the ratio of law laid down in the aforesaid judgment of the Hon'ble Supreme Court, this Court is of the view that the prosecution has failed to establish the alleged guilt that accused appellant had demanded illegal gratification from PW7 and also received the same knowingly that it was received by him as illegal gratification. These two aspects are required to be proved beyond reasonable doubt by the prosecution for convicting the appellant which the prosecution has failed to prove in this case. Since the complainant and the shadow witness have turned hostile with regard to alleged demand, recovery and acceptance, the benefit of doubt should be given to the accused- appellant. Therefore, without commenting on the recovery of tainted money and the veracity of the prosecution evidence, it is a fit case where the appellant deserves to be acquitted of the charge.
In the labyrinth of criminal justice system, the burden of proof lies heavily on the prosecution. The entire merit of a case depends on prosecution witnesses. Bentham says "witnesses are the eyes and ears of justice". The criminal case is built on the edifice of evidence, the evidence that is admissible in law. Since main witnesses in this case have not supported the prosecution case, prosecution had failed to build the edifice of evidence and resultantly failed to prove the guilt of the appellant beyond reasonable shadow of doubt.
Accordingly, without further commenting upon the quality of prosecution evidence, this appeal is allowed, judgment of conviction 13.9.2003 and order of sentence dated 15.9.2003 are set aside and the appellant is acquitted of the charge framed strictly in consonance with Crl. Appeal No.1813-SB of 2003 -8- the observations and authority of law laid down by the Apex Court in the case of Banarsi Dass (supra). Ordered accordingly.
Bail bonds stand discharged.
(Paramjeet Singh) Judge December 21, 2012 R.S.