Punjab-Haryana High Court
Raghu Nath Bansal vs State Of Punjab on 9 December, 2009
Author: K.C.Puri
Bench: K.C. Puri
Criminal Appeal No.1731-SB of 2003 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT
CHANDIGARH.
Criminal Appeal No.1731-SB of 2003
Decided on 9 .12.2009.
Raghu Nath Bansal ...... Appellant.
Versus
State of Punjab .... Respondent.
CORAM:- HON'BLE MR. JUSTICE K.C. PURI
Present :- Mr. J.S.Brar, Advocate for the appellant.
Mr. Sudhir Nehra, Addl.A.G, Punjab.
K.C.PURI, J.
This is an appeal preferred by appellant against the judgment and order dated 2.9.2003 passed by Shri Udey Singh Gera, learned Judge, Special Court, Faridkot vide which appellant has been convicted under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter mentioned as - the Act) and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for three months under Section 7 of the Act and further sentenced him to Criminal Appeal No.1731-SB of 2003 2 undergo rigorous imprisonment for a period of one year and to pay a fine of Rs.1000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of three months under Section 13(2) of the Act.
The case of the prosecution in brief is that the electric meter, which is in the name of father of complainant-Malkiat Singh was out of order for the last about 8-9 months (before the incident) and the Electricity Board used to charge excess bill on average basis. The complainant moved applications to change his meter to the Sub Divisional Officer, (in short
-SDO), Punjab State Electricity Board, Doda (in short -PSEB) and also made oral requests but of no use.
On 10.11.1994, complainant met the Executive Engineer and moved an application in this regard, who further ordered to SDO, but the said SDO did not pay any heed to his application. The SDO told him that he would mark the application to the concerned JE, if he paid Rs.300/- to him but the complainant requested him that being a poor farmer, unable to pay such a huge amount. Then, this SDO asked him to pay Rs.200/- to him and he would mark his application to the Junior Engineer, the same day. When the complainant requested the SDO that he was not having such a money at that time, then the SDO asked him to come in the afternoon of the next day and he would do the needful, while retaining the said application with him. The complainant thereafter told the above said facts to Karnail Singh, who suggested him to get the SDO trapped. On 11.11.1994, the complainant along with Karnail Singh met DSP Harbans Singh, Vigilance Bureau and made statement Ex.PG. The said DSP made his endorsement Ex.PG/1 on the statement and sent the same to Police Station Kot Bhai, on the basis of Criminal Appeal No.1731-SB of 2003 3 which formal FIR Ex.PG/2 was recorded. Thereafter, Malkiat Singh handed over two currency notes of the denomination of Rs.100/- each to the DSP, who applied phenolphthalein powder to them and handed over the same to Malkiat Singh after ensuring that no money is left on his person and instructed him to hand over the money only on demand by the accused. DSP Harbans Singh also instructed Karnail Sigh PW to accompany Malkiat Singh to the office of the accused and to hear the conversation and to give the signal to the police party by touching his right hand on his head.
Jagdish Singh, Senior Assistant, official witness joined the police party after seeking necessary permission by the DSP. Thereafter, PW Malkiat Singh and Karnail Singh were sent to the office of the accused and on receipt of the signal from Karnail Singh, the DSP along with the police party went inside the office of the accused and introduced himself and disclosed the purpose of raid. On the directions of the DSP, the accused took out his wallet from the back pocket of his pant and handed over the same to him and on opening it by the DSP, the tainted currency notes were recovered. Said DSP with the help of Jagdish Singh PW, tallied the number of the currency notes with the previous memo and found the same and thereafter the DSP took these currency notes into possession. The DSP prepared a solution of sodium carbonate in water and asked PW Jagdish Singh to dip his hands therein but the colour of the solution did not change and thereafter when the accused dipped his hands in the said solution then the colour of the solution changed into light pink. The solution was put into a nip and the nip was duly sealed with his seal bearing impression HSS over which signatory slip of PW Jagdish Singh was affixed and the sample seal Criminal Appeal No.1731-SB of 2003 4 was also prepared and the same were taken into possession vide memo Ex.PJ. The accused was arrested. Statements of the witnesses were recorded. The sanction to prosecute the accused was obtained and after completion of necessary investigation, the accused was then sent up for trial.
On appearance, copies of the documents were supplied to the accused.
The learned trial Court framed charges under Section 7 and 13(2) of the Act against the appellant. He pleaded not guilty to the charge and claimed trial.
The prosecution in order to establish its case examined HC Sukhdev Singh (PW-1), Constable Rajbir Singh (PW-2), Dalip Kumar Saini (PW-3), Baljinder Singh Record Keeper (PW-4), Gurnaib Singh (PW-5), Gurbax Singh (PW-6), Harmesh Kumar (PW-7), Malkiat Singh (PW-8), Jagdish Singh (PW-9) and DSP Harbans Singh (Retd.) as (PW-10).
The accused, when examined under Section 313 Cr.P.C. denied the recovery, claimed to be innocent and false implication in this case. He further pleaded that Malkiat Singh is a man of shady character and is in the habit of making false complaints and cases against the officers of the PSEB, Doda and blackmailing them. He also got bad reputation in the area and a man of criminal antecedent. He had checked meter of Joginder Singh father of Malkiat Singh and he was penalized and the amount was paid by Malkiat Singh and he had signed the entry Ex.DA made by him in the register. He never demanded or accepted any amount. Recovery of the amount was foisted upon him. The proceedings of hand wash and wallet wash were Criminal Appeal No.1731-SB of 2003 5 faked one. The recovery of the application is also false.
When asked to enter upon his defence, he produced Anil Kumar Gupta Handwriting and Finger Prints Expert, Fazilka (DW-1), Sadhu Ram (DW-2), Harpal Singh, Revenue Accountant (DW-3) and Balraj (DW-4), Krishan Lal Narang (DW-5), Constable Joginder Singh (DW-6), Jag Singh LDC, PSEB, Sub Division, Doda (DW-7).
The learned trial Court held the appellant guilty under Sections 7 read with 13(2) of the Act, and sentenced him, as narrated above.
Feeling dis-satisfied with the above said judgment of conviction, the convict/appellant-Raghu Nath Bansal had preferred the instant appeal.
I have heard learned counsel for the appellant and the learned State counsel and have gone through the records of the case.
Learned counsel for the appellant has submitted that charge framed against the appellant is that he demanded and accepted a sum of Rs.200/- as illegal gratification from Malkiat Singh as a motive for reward for changing and releasing electric connection in the name of Malkiat Singh from the name of his father Joginder Singh and thereby committed offence punishable under Sections 7 and 13(2) of the Act. However, from the perusal of documents Ex.PA, the very basis of the prosecution, it is revealed that the request was made by Joginder Singh through Malkiat Singh for changing of meter and there is no request made in that application for changing the meter from the name of Joginder Singh in the name of Malkiat Singh-complainant. Malkiat Singh complainant and all other material witnesses produced by the prosecution have also stated that Criminal Appeal No.1731-SB of 2003 6 amount of Rs.200/- was in respect of change of the dead meter and not for changing the name. So, the appellant has been prejudiced by wrongly framing the charge.
It is further submitted that Karnail Singh is the material witness for the prosecution, as according to the case of the prosecution, he was a shadow witness. The demand and acceptance of illegal gratification could have been corroborated by the said alleged independent witness but he has not been examined. The complainant is an accomplish and his testimony without any corroboration in respect of demand and acceptance of illegal gratification cannot be accepted. More so, when Malkiat Singh complainant is inimical towards the appellant as well as other PSEB officials. Voluminous evidence has been produced on the file to prove the fact that Malkiat Singh is a notorious person. From the perusal of Ex.DA, it is revealed that at the instance of appellant penalty of Rs.164/- was imposed by the appellant. From the perusal of the document Ex.DC to Ex.DR, it is revealed that Malkiat Singh has made various complaints against PSEB officials. Many of these complaints are much prior to the registration of the instant case. Another FIR under Sections 7 and 13(2) of the Act was registered at the instance of complainant against one SDO Jasbir Singh, which is clear from FIR Ex.DS dated 3.6.1997. The said FIR was found to be false and cancellation report was submitted. So, it is contended that in these circumstances, the learned trial Court has not properly appreciated evidence on record in the right prospective.
It is further submitted that hand-wash and wallet wash have been foisted at the instance of complainant.
Criminal Appeal No.1731-SB of 2003 7
The Hon'ble Apex Court in C.M.Girish Babu vs. CBI, Cochin, High Court of Kerala 2009(2) Recent Criminal Reports 134 has held that mere recovery of currency notes is not sufficient to convict the accused under Sections 7 and 13( 2) of the Act. The prosecution has to prove the factum of demand and acceptance of illegal gratification. Even the investigating officer in the cross-examination has admitted the fact that Malkiat Singh complainant is not holding a good reputation. So, the learned trial Court should not have accepted his testimony regarding demand and acceptance, more so, when shadow witness has not even produced by the prosecution. No doubt, the shadow witness has died but the benefit of the same cannot be given to the prosecution. But, the same is to be given to the accused/appellant.
The learned counsel for the appellant has relied upon authorities as under :-
(1) Hari Kishan vs. State of Haryana 1997(2) RCR (Criminal) 330;
(2) Amrik Singh vs. State of Punjab 2005(4) RCR (Criminal),310;
(3) Gurcharan Singh vs. State of Haryana 1993(3) RCR (Criminal),450 ;
(4)State by Inspector Vigilance and Anti Corruption Dept. vs. K.M.Ravi 2002(4) RCR (Criminal) 679 (5) Lakhbir Singh vs. The State of Punjab 1982 C.C.Cases 213 (HC) Criminal Appeal No.1731-SB of 2003 8 (6) Jagjit Singh vs. The State of Punjab 1980 C.L.R.93 (7) Kuldip Rai vs. State of Punjab 2002(3) All India Criminal Law Reporter 297;
(8) Man Singh vs. Delhi Administration AIR 1979 Supreme Court 1455 (9) Ram Narain Yadav vs. State of U.P.1990 Crl.L.J. 973. (10) Joginder Kumar Sood vs. The State of Punjab 1989(1) All India Criminal Law Reporter 485 and (11) Ram Kishan Juneja vs. State of Haryana 1993(1) All India Criminal Law Reporter 65.
The learned State counsel has supported the judgment of trial Court. It is submitted that Karnail Singh shadow witness could not be examined as he had died prior to his examination in the Court. The hand wash and wallet wash proved the fact that appellant has accepted the illegal gratification for changing the meter. Mere fact that in the charge, it is mentioned that illegal gratification is in respect of change of name from Joginder Singh father of complainant to the name of Malkiat Singh, does not prejudice the accused in any manner. Jagdish Singh official witness (PW-9) and DSP Harbans Singh (PW-10) have supported the case of the prosecution on all material particulars. The correspondence/documents Ex.DC to Ex.DR produced by the accused does not create dent in the prosecution story. Some of those documents are after the registration of the case. These documents rather shows that appellant has been harassing the PSEB authorities. Prayer has been made for dismissal of the appeal. Criminal Appeal No.1731-SB of 2003 9
I have given my thoughtful consideration to the rival contentions made by both the sides and have gone through the records of the case.
To prove the ingredient of offence under Sections 7 and 13 (2) of the Act, the prosecution is required to prove the following ingredients:-
(i) demand of illegal gratification by the public servant;
(ii) acceptance of illegal gratification by the public servant ; &
(iii) recovery of illegal gratification.
Demand and acceptance of illegal gratification can be proved by the complainant as well as by examining the shadow witness. In this case, the complainant has supported the case of the prosecution but the shadow witness has not been examined by the prosecution as he died prior to his examination. Had Karnail Singh been examined, whether he could be considered as an independent witness? The answer to that question is in negative. Malkiat Singh in his cross-examination although has denied that Karnail Singh is his friend but he has admitted that he deposed in favour of Karnail Singh in a criminal case instituted by him. Karnail Singh belonged to the same village as that of complainant Malkiat Singh. A person appeared in favour of another person in case he has a thick relationship with him. However, the fact remains that Karnail Singh has not been examined. The benefit of the same cannot be given to the prosecution but has to be given to the accused. In case Karnail Singh had remained alive and had been examined by the prosecution in that case the accused would have got an opportunity to cross-examine him. The bribe giver is an accomplish and his testimony normally should be accepted if the same is corroborated by an Criminal Appeal No.1731-SB of 2003 10 independent witness. In the present case Karnail Singh, according to the prosecution, was an independent witness but could not be examined on account of his death. So, the fact that Karnail Singh cannot be said to be an independent witness in view of the candid admission by the complainant that he appeared as a witness in favour of Karnail Singh in a criminal case.
Now reverting to the testimony of Karnail Singh. The learned trial Court has not taken into account his past conduct against PSEB authorities. The occurrence relates to the year 1994 but much prior to that Malkiat Singh-complainant has made various complaints against the PSEB officials. From the perusal of Ex.DG, letter No.11096 dated 20.8.1992, Assistant Executive Engineer has addressed the said letter to Executive Engineer in which it is mentioned that Malkiat Singh has made various complaints against the PSEB authorities which were found to be false and that complaints had been filed. The PSEB authorities vide letter No.182 dated 17.1.1992 addressed letter to Kala Singh alias Malkiat Singh son of Joginder Singh, who is complainant that he is un-authorizedly breaking the wires. From the perusal of Ex.DJ, it is revealed that on 15.5.1983 various inhabitants of the village made complaint against the complainant that he has changed wires and fuse of the transformer and made supply to his house by doing that. All these correspondence is prior to the raid in question. Ex.DK is the letter No.2028 dated 27.11.1996 for registering a case against some persons who has stolen wires of 11.k.v. Vide letter Ex.DL No.2082 dated 9.12.1996 Malkiat Singh complainant is stated to be the person who has broken the wires of 11 kva line. Letter No.2128 dated 16.12.1996 Ex.DM is regarding the same occurrence. Penalty of Criminal Appeal No.1731-SB of 2003 11 Rs.12,439/- was imposed upon the complainant vide letter Ex.DN which has been deposited by him on 8.1.1997 and his admission regarding breaking the 11 kva line. Ex.DO, Ex.DP, Ex.DQ and DR are the letters in this context. Ex.DX dated 3.6.1997 is the FIR registered under Sections 7 and 13(2) of the Act, in which it has been stated that Rs.500/- has been demanded by Jasbir Singh SDO, Electricity Board from the complainant of the present case Malkiat Singh. That case has been stated to be sent as un- traced. From the perusal of entry Ex.DA dated 3.8.1994 i.e. on much prior to the raid in question, penalty was imposed on the domestic meter which deposited by Malkiat Singh. So, complainant-Malkiat Singh has his own axe to grind against the PSEB in view of past recording of making allegations against each other that is much prior to the raid in question. In case the complainant could make false allegation against another SDO- Jasbir Singh in that case the possibility of making false allegations against the present appellant cannot be ruled out and as such the learned trial Court should have given benefit of doubt to the appellant in the absence of any corroboration to the statement of complainant.
The Hon'ble Apex Court in authority C.M.Girish Babu's case (supra) held as under :-
"Prevention of Corruption Act, 1988, Sections 7 and 13(1)(d) and 13(2). Bribery case. Recovery of tainted money from accused whether a proof of charge (No.) Law summed up :-
(1) Mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused.Criminal Appeal No.1731-SB of 2003 12
(2) It is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification."
The accused was acquitted by the Hon'ble Apex Court in that case. The testimony of Jagdish Singh (PW-9) and DSP Harbans Singh (Retd.) as (PW-10) coupled with hand wash and wallet wash only prove the recovery of the tainted currency notes from the accused but in view of C.M.Girish Babu's case (supra) mere recovery is not sufficient to convict the accused under Sections 7 and 13(2) of the Act.
In authority Hari Kishana's case (supra) where the demand acceptance was not proved by independent evidence, the accused was acquitted.
In authority Amrik Singh's case (supra) where the shadow witness and complainant were related to each other and that fact has been suppressed by the prosecution, in that case, it was held that serious doubt has been caused as to the veracity of the prosecution case.
In authority K.M.Ravi's case (supra), it has been held that it is sufficient if the accused is able to probablize his case and he is not expected to prove his defence strictly.
In authority Lakhbir Singh's case (supra) where there was no independent and respectable witness to corroborate the demand and acceptance and shadow witness was found to be of shabby antecedents, the appellant was ordered to be acquitted.
Criminal Appeal No.1731-SB of 2003 13
In authority Jagjit Singh's case (supra), the accused was acquitted where there was no corroboration of demand of bribe.
In authority Kuldip Rai 's case (supra), the Punjab and Haryana High Court has held that mere recovery of tainted currency notes is not sufficient unless the demand is corroborated by independent evidence.
In authority Joginder Kumar Sood's case (supra), it has been held that where the hostile witness was found to be untrustworthy, conviction cannot be recorded for offence under Sections 5(1)(d) and 5(2) of the P.C.Act and under Section 161 of IPC.
In authority Ram Kishan Juneja's case (supra), it has been held that motive for payment and acceptance is a relevant and material fact for consideration.
In the present case, the charge framed against the appellant is that he demanded and accepted illegal gratification for changing and releasing electricity connection in the name of Malkiat Singh from the name of his father Joginder Singh. However, the evidence led by the prosecution does not support the said fact but was in respect of change of the dead meter only. Ex.PA is the basis of the prosecution in which Joginder Singh through Malkiat Singh had made a request that meter at their premises to be changed as it was lying dead. No request has been made in this application that meter be changed in the name of Malkiat Singh from the original consumer Joginder Singh, his father. No doubt, the charge can be amended at any stage but in view of the above circumstances discussed above, it would not be inconsonance of justice to amend the charge after period of fifteen years and in view of the evidence produced by the prosecution. Criminal Appeal No.1731-SB of 2003 14
In view of the above discussion the appeal stands allowed and the impugned judgment of the learned trial Court stands set aside and the accused stands acquitted by giving him benefit of doubt.
A copy of this judgment be sent to the trial Court for strict compliance.
December 9 , 2009 (K.C. PURI) sv JUDGE