Punjab-Haryana High Court
Baljinder Singh vs State Of Punjab on 9 April, 2014
CRA-S-1696-SB of 2003 -: 1 :-
IN THE HIGH COURT FOR THE STATES OF PUNJAB AND HARYANA
AT CHANDIGARH
CRA-S-1696-SB of 2003
Date of decision: April 9th, 2014.
Baljinder Singh
... Appellant
v.
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE DR. BHARAT BHUSHAN PARSOON
Argued by: Mrs. Baljeet Kaur Mann, Advocate, for the appellant.
Shri Neeraj Yadav, Assistant Advocate General, Punjab.
Dr. Bharat Bhushan Parsoon, J.
Having been convicted for commission of the offence under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter called the Act) and thereafter having been sentenced to undergo RI for a period of three years with payment of fine of Rs.3,000/- for the offence under Section 7 of the Act respectively, in default of payment of fine, the appellant having been ordered to undergo further RI for a period of six months, Baljinder Singh, the then Reader to SDM, Ferozepur, is now in appeal.
2. The prosecution case put in a narrow compass is reproduced as below:-
2.1 The appellant-convict (hereinafter mentioned as the accused) was Reader to SDM, Ferozepur. Complainant Milkha Singh (PW4) was a land owner of village Gillanwala (Tehsil and District Ferozepur). Rupinder Kumar, his previous commission agent obtaining his thumb impressions allegedly by fraud, had got his land transferred in his favour by orders of the Kadyan Vinod Kumar 2014.04.10 15:11 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1696-SB of 2003 -: 2 :- Court and had even further sold the same to one Smt. Ajit Kaur even though proceedings under Section 145 Cr.P.C. qua the land were continuing. In respect of this transfer, mutation case was pending before the SDM, Ferozepur. Vide order dated 22.8.2001, order was pronounced by SDM, Ferozepur whereby he had refused to sanction the mutation. As this order was beneficial to him, the complainant needed a copy of that order. He had moved an application for the same on 10.10.2001 through his counsel. Date of delivery, in the receipt obtained by his counsel, was given as 19.10.2001.
Despite making many rounds for obtaining copy, Copying Clerk had informed him that the file was with the accused and consequently the complainant started meeting the accused who had been putting off the matter on one pretext or the other. On 4.12.2001, he again met the accused in his office requesting him to send the file to the Copying Clerk so that he could obtain copy of order dated 22.8.2001. The accused made him clear that there was no fun of his coming to him again and again and if he wanted, the file to be sent to the Copying Clerk at an early date, he was required to pay Rs.1,000/- as bribe. On his request, reducing the demanded amount to Rs.500/-, he asked him to bring the demanded bribe amount at any time in the afternoon on 5.12.2001 in his office to enable him to send the case file to the Copying Clerk.
2.2 The complainant was not interested to pay him the bribe amount. He met Sucha Singh PW5 of his village and in consultation with him, he decided to report the matter to the vigilance department. Thereafter, both of them approached the Vigilance Bureau, Ferozepur where DSP Raminder Singh, Vigilance Bureau, Moga (PW7) met them. The complainant made his statement Ex.P9 containing necessary details and produced five currency notes of denomination of Rs.100/- each. Noting down numbers of the currency notes, a pre-trap memo was prepared. Earlier, the said currency notes were treated with phenolphthalein powder (P Powder) by the Investigating Officer, whereafter the said currency notes Kadyan Vinod Kumar 2014.04.10 15:11 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1696-SB of 2003 -: 3 :- were handed over to the complainant with a direction to be given to the accused on demand as bribe. The complainant and the shadow witness were given demonstration by the Investigating Officer as to how solution of sodium carbonate would become pink after coming in contact with the P Powder. Making endorsement (Ex.P1/A) on the statement, the same was sent to the police station on the basis of which formal FIR (Ex.P1/B) was registered. As per plan, the complainant and the shadow witness were to go to the accused first of all and after the tainted currency notes were to be given to the accused on demand as bribe by the complainant, rest of the raiding party was to join them.
2.3 On seeing the complainant when he was the shadow witness, the accused asked the complainant if he had brought the bribe amount of Rs.500/- as per his promise. Answering it in the affirmative, the complainant had paid him the tainted currency notes. Assuring him that he would send the file thereafter to the Copying Clerk, taking the currency notes from the complainant, he had put those currency notes in the pocket of his shirt below his pullover. Relevant file was also retrieved from his almirah and the accused had then shown him the order dated 22.8.2001 of the SDM which was lying therein.
2.4 The shadow witness gave a pre-determined signal upon which the Investigating Officer accompanying the other members of the raiding party had reached there. Thereafter, preparing solution of sodium carbonate, hands of the accused were dipped therein, whereupon colour of solution had turned pink. The said solution was shifted to a 'nip' which was duly sealed and then was taken into possession vide memo (Ex.P6). Thereafter, in personal search of the accused, five currency notes of Rs.100/- were recovered from front pocket of his shirt. On comparison, number of those currency notes tallied with the details of the pre-trap memo. Shirt of the accused was also removed which when dipped in the solution of Kadyan Vinod Kumar 2014.04.10 15:11 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1696-SB of 2003 -: 4 :- sodium carbonate, had changed its colour to pink. This solution was also put in a separate 'nip' which was also duly sealed and then was taken into possession vide memo (Ex.P7). The accused had also produced case file pertaining to mutation of the land which was then taken into possession vide memo (Ex.P8). Regarding search of office of the accused memo (Ex.P10) was prepared. The accused was arrested, spot investigations were conducted, site plan was prepared and 'nips' were later sent to the Forensic Science Laboratory for analysis. On receipt of report of the said laboratory (Ex.P13) and obtaining sanction to prosecute the accused from the competent authority and completing the other necessary investigations, report under Section 173 Cr.P.C. was filed against the accused.
3. Charge under Section 7 as also under Section 13(2) of the Act was framed against the accused, which he contested and claimed trial.
4. To substantiate the charge against the accused, the prosecution had examined as many as eight witnesses in addition to production of documentary evidence.
5. In his statement recorded under Section 313 Cr.P.C., the accused had taken up the plea that he was on leave on the date of occurrence and had been called from his house and then was falsely implicated in the case. It is also disclosed that the complainant had nothing to with the case in hand as he was neither a party nor was having any connection with the case. It is claimed that he had nothing to do with the file and only Copying Clerk was to issue the copy. To sustain his plea, the accused had examined four witnesses in his defence.
6. The trial court rejecting the defence evidence and relying on the prosecution version, sustained and supported by its witnesses, held the accused guilty and convicting him for commission of the offence punishable Kadyan Vinod Kumar 2014.04.10 15:11 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1696-SB of 2003 -: 5 :- under Sections 7 of the Act, sentenced him as mentioned in earlier part of the judgment.
7. Challenging the verdict of conviction as also order of sentence against him, the accused has claimed that Milkha Singh PW had nothing to do with the land or the mutation thereof. It is averred that neither he applied for a certified copy nor in any way was connected with the same. It has been explained that on 22.8.2001, the date on which the order in question was pronounced, the SDM had been transferred from Ferozepur. It has been pleaded that the trial court ignored the fact that the file was retained by the Ahlmad and not by the appellant and therefore, he could not be convicted. Questioning veracity of the prosecution version, it is claimed that Milkha Singh (PW4) had neither stated regarding any demand by the accused nor such currency notes having passed hands from the complainant to the accused. In short, it is claimed that neither there was any 'demand' of bribe nor any bribe was 'paid' and thus the raid against the accused was cooked up.
8. Assailing the prosecution case, it is averred that statement of Milkha Singh (PW4) does not find corroboration from any independent quarters. Referring to the deposition of complainant Milkha Singh (PW4) and shadow witness Sucha Singh PW5, it is claimed that both these witnesses are discrepant and contradictory inter-se. Questioning his joining of the raiding party, it is claimed that there was no occasion for the recovery witness to have joined the trap party. Disputing validity of sanction accorded by Subhash Chander (PW3), praying for acceptance of the appeal, acquittal has been sought.
9. Counsel for the parties have been heard while going through the impugned judgment and order of sentence, grounds of appeal and evidence recorded by the trial court.
Kadyan Vinod Kumar 2014.04.10 15:11 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1696-SB of 2003 -: 6 :-10. Merely because the complainant was not a party to the mutation proceedings decided against his commission agent, is not a circumstance to ignore his association and concern as also right and interest in the land. The complainant was beneficiary of this order of refusal to sanction mutation in favour of the transferee on the ground of wrong obtaining of thumb impressions of the complainant and consequent of transfer of land during pendency of the proceedings under Section 145 Cr.P.C. Merely because he himself had not applied for obtaining copy of such order and rather had taken help of his counsel (who had signed the application for obtaining certified copy of order) rather makes the position further clear. Request for obtaining copy through a counsel is always on behalf of the party who is not to be necessarily an applicant himself. Stand of the accused that the complainant was nobody in the entire scheme of things, thus is of no merit.
11. Counsel for the appellant-accused citing Banarsi Dass v. State of Haryana, 2010(2) RCR (Crl.)553, has urged that mere recovery of tainted currency notes cannot, by itself, prove the charge of the prosecution against the accused in absence of any evidence to prove 'demand' of bribe and further that the accused had 'accepted' the money as bribe. Referring to Section 20 of the Act, it is explained that pre-requisites of 'demand' and 'acceptance' of bribe have to precede before rebuttable presumption of Section 20 under the Act is raised against the accused. In this cited authority, there was a peculiar situation. The complainant as also the shadow witness had turned hostile and the only evidence with the prosecution to boast of was recovery of tainted currency notes which by itself was not taken to be sufficient to return a finding of guilt against the accused.
12. Facts of this case in hand are entirely different.
Kadyan Vinod Kumar 2014.04.10 15:11 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1696-SB of 2003 -: 7 :-13. Learned defence counsel then seeking support from Subash Parbt Sonvane v. State of Gujarat, 2002(3) RCR (Crl.) 188 has claimed that there must be evidence that the accused 'demanded' money from the complainant and accepted the same pursuant thereto. In this regard, support has also been sought from Amrik Singh v. State of Punjab, 2005(4) RCR (Crl.) 310, Anand Parkash v. State of Haryana, 2008(2) RCR (Crl.) 335, C.M. Girish Babu v. CBI, Cochin, High Court of Kerala, 2009(@) RCR (Crl.) 135, Ram Chander v. State (Govt. of NCT of Delhi), 2009(4) RCR (Crl.) 880, Suresh Kumar v. State of Haryana, 2009(4) RCR (Crl.) 608 and Ashok Tshering Bhutia v. State of Sikkim, 2011(2) RCR (Crl.) 99.
14. When entire evidence is evaluated in the context of this legal proposition, there is unassailed testimony of complainant Milkha Singh PW4 regarding demand of bribe by the appellant when he had approached the appellant/accused on disclosure made by the Copying Clerk that the file was with the accused. Relevant portion of statement of Mulkha Singh PW4 forming foundation of the FIR, is as below:-
"... For obtaining the copy, I had been going to the copying clerk on different dates. He told me that file of my case is with Baljinder Singh, Reader. On every date, I had also been meeting Baljinder Singh, Reader, who had been putting off the matter every time. On 4.12.01, I again met Baljinder Singh, Reader, SDM, Ferozepur in his office and requested him to send the case file to the copying clerk. Baljinder Singh, Reader told me that what is the fun in coming again and again. In case, I wanted that case file be sent to the copying clerk at an early date then he would take Rs.1000/- as bribe. I told him that I am poor person and I have already spent sufficient amount due to the pendency of the cases in the courts. On my entreating, he agreed to send the case file to copying clerk after accepting Rs.500/- as bribe. ..."
14.1 Milkha Singh appeared in the witness box as PW4 and reiterated the earlier version, relevant portion whereof reads as under:-
"... The copy clerk had told me that the file was with the accused Kadyan Vinod Kumar 2014.04.10 15:11 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1696-SB of 2003 -: 8 :- and that in case the same was sent to him he would prepare the certify copy of order. I met the accused for sending the file to copying clerk but he kept on extending false promises for about 2-2- 1/2 months. Then he raised a demand of Rs.500/- for sending the file. ..."
14.2 Reiteration of this demand again comes from statement of complainant PW4 when he approached the accused with the shadow witness. No doubt Milkha Singh PW4 has not stated in specific terms that handing over of tainted currency notes was pursuant to 'demand' then made again, but when his statement is read as a whole, there does not remain any dispute that such handing over of Rs.500/- was pursuant to demand of bribe only, because he was given specific time as also was disclosed specific place for coming to the accused with bribe amount in the afternoon of 5.12.2001 as is evident from earlier part of his statement which has formed the foundation of this case.
14.3 When statement of shadow witness Sucha Singh PW5 is examined in the interface of statement of Milkha Singh PW4 he has made the things even more explicit and thus leaves no manner of doubt that handing over of Rs.500/- by the complainant to the accused was pursuant to demand of bribe. Relevant part of statement of Sucha Singh PW5 is as below:-
"... I myself and Milkha Singh went to the court of SDM. Ramandeep Singh had told us that the money was to be given to accused only on demand and not otherwise and I was asked to give signal to him after the acceptance of money by accused. When we went to that court, the accused was sitting there and Milkha Singh occupied the seat on his left hand side. I occupied the seat on the right side of Milkha Singh. The other members of the raiding party were outside. The accused demanded the money from Milkha Singh. Milkha Singh gave Rs.500/- to him which consisted of currency notes of Rs.100/- each. The accused put the same in the front side pocket of his shirt. Then I gave a signal to DSP who came inside with other members of raiding party."
15. The accused had handled the tainted currency notes while Kadyan Vinod Kumar 2014.04.10 15:11 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1696-SB of 2003 -: 9 :- accepting the same from the complainant and then had put those notes in the front pocket of his shirt, is a fact which is proved even from the events that followed. Solution of sodium carbonate had turned pink when hands of the accused were dipped therein. Even pocket wash in sodium carbonate solution, having turned the same to pink, further supports the plea that he had put the tainted currency notes in his pocket.
16. Tallying of these currency notes with the pre-trap memo leaves no manner of doubt that these currency notes were the same which having been treated with P Powder, had earlier been handed over to the complainant to be given further to the accused on demand as bribe. Independent witness Sukhdev Singh PW6 lends further credence to the prosecution case. He has given complete description of the entire trap proceedings in chronological order. DSP (Ramandip Singh) PW7 has also given minute details of the proceedings with clarity and precision.
17. Plea of the accused that he had nothing to do with the file and had no role in the alleged commission of the crime, is mis-founded. His plea that transfer of SDM on the same day i.e., 22.8.2001 when the order was pronounced and further that the order had not been written and signed by the SDM by then, is also proved to be wrong. Order of 22.8.2001 of the then SDM is on the file, is not a disputed fact. This file was recovered from the table of the accused. Vide memo Ex.P10, whereby the file was taken into possession, lends further support to the prosecution case proving that the accused was keeping the file with himself and had withdrawn the file from the almirah only when he had accepted the bribe of Rs.500/- from the accused with a purpose of sending the file to the copying clerk but in the meanwhile he was nabbed in the raid conducted by the Vigilance Bureau. This retrieving of the file from the almirah and it having been placed on his table by the accused, is fully established from the facts and circumstances emerging in sequential order in a set chronology against the accused.
Kadyan Vinod Kumar 2014.04.10 15:11 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1696-SB of 2003 -: 10 :-18. His plea that he was on leave on the day of occurrence and was called from his house and then was involved in this case, is again a misnomer. Had he been on leave, he was not to fall short of production of his leave application to sustain such plea. No such leave application has been produced by the accused. Even statement of Chhinder Singh DW4 who was an accused in a case before SDM which was fixed on 5.12.2001 as proved by Ramesh Kumar DW3, showing his presence for that day in the court of SDM, does not serve the cause of the defence.
19. His statement that the accused was held in grip by 3-4 persons and one of them had put currency notes in front pocket of the shirt of the accused and then he was removed in a vehicle which was lying parked outside is not proved on record. By this evidence of the defence, it is clear that Chhinder Singh DW4 has given details of his hearing of 5.12.2001, implying thereby that presence of the SDM is thus not disputed. Had any such incident of thrusting of currency notes in the pocket of the accused, as projected by Chhinder Singh DW4 actually happened, then the SDM himself was to be a witness to this alleged false implication. No such evidence has emerged from the defence about SDM, Ferozepur. This version of putting of currency notes forcibly in pocket of the accused has nowhere appeared in defence of the accused when cross examination was effected on the complainant as also on the shadow witness. No such case has been set up by the accused while cross-examining Sukhdev Singh, recovery witness PW8 or the Investigating Officer.
20. There is nothing wrong in grant of the sanction to prosecute the accused. It was not passed in a mechanical way but was given after due application of mind.
21. Keeping in view the totality of facts and circumstances, defence Kadyan Vinod Kumar 2014.04.10 15:11 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1696-SB of 2003 -: 11 :- version has been destroyed by the defence evidence led by the accused himself. There is neither any factual nor legal error in the prosecution case. There is no factual or legal flaw in the impugned judgment.
22. Consequently, this appeal, being devoid of merit, is dismissed so far as conviction is concerned.
23. So far as challenge to the order of sentence is concerned, stand of the appellant-accused is that the trial court had already made up its mind to return a finding of conviction and thus, had sentenced him interalia to rigorous imprisonment for 3 years.
24. Keeping in view the fact that the appellant is facing the trial since 2001 and no digression of law from the appellant-accused has been reported during these years, either when he was undergoing this travail and trauma of the trial or after, the sentence awarded by Special Judge, Ferozepur. Impugned order of sentence dated 5.9.2003 being harsh is modified and the period of sentence is reduced to rigorous imprisonment of one and a half years. Sentence of fine, together with the default clause is, however, maintained. Period for which the accused has already remained in custody in this case, would be set off from the period of sentence now awarded.
25. There would be no change in the findings of the trial court in remaining part of the impugned order of sentence.
26. With the above modification in the order of sentence, the appeal stands disposed of.
27. Per records, while convicting and sentencing, vide order dated 5.9.2003, Baljinder Singh, appellant was released on bail by the trial Court on his furnishing personal bond in thesum of Rs.5,000/- with one surety in Kadyan Vinod Kumar 2014.04.10 15:11 I attest to the accuracy and integrity of this document Chandigarh CRA-S-1696-SB of 2003 -: 12 :- the like amount, to enable him to prefer an appeal before this Court. His bail/surety bonds are cancelled. He be arrested and sent to jail to undergo the remaining part of sentence. Learned trial Judge is directed to comply with this order forthwith.
[Dr. Bharat Bhushan Parsoon] April 9th , 2014. Judge kadyan
1. Whether Reporters of local papers may be allowed to see the judgment ?
2. Whether to be referred to the Reporters or not ?
3. Whether the judgment should be reported in the Digest?
Kadyan Vinod Kumar 2014.04.10 15:11 I attest to the accuracy and integrity of this document Chandigarh