Punjab-Haryana High Court
Talwinder Singh vs State Of Punjab on 22 February, 2011
Author: Jora Singh
Bench: Jora Singh
CRA-S-255-SB-2002 -1-
IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH
CRA-S-255-SB-2002
Date of decision: 22.02.2011
Talwinder Singh
...... Appellant
Versus
State of Punjab
..... Respondent
CORAM: HON'BLE MR.JUSTICE JORA SINGH
Present: Mr. J.K. Sibal, Senior Advocate, with
Ms. Manmeet Kaur, Advocate, for the appellant.
Mr. P.S. Sidhu, Additional Advocate General, Punjab.
JORA SINGH, J.
Talwinder Singh, preferred this appeal to challenge the judgment of conviction and order of sentence dated 7.2.2002, rendered by the learned Special Judge, Jalandhar, in C.C. No. 1 of 2000, arising out of FIR No. 48 dated 8.9.1999, registered under Section 7 read with Section 13 (2) of the Prevention of Corruption Act (hereinafter referred as 'the Act') at Police Station, Vigilance Bureau, Jalandhar.
By the said judgment, he was convicted under Section 7 read with Section 13 (2) of the Act and sentenced to undergo rigorous imprisonment for a period of four years and to pay a fine of ` 5000/- and in default of payment of fine to further undergo rigorous imprisonment CRA-S-255-SB-2002 -2- for a period of six months.
Prosecution story, in brief, is that Bahadar Singh- complainant (PW-7), along with his friend Bahadar Singh S/o Balbir Singh, had purchased one plot measuring 2 kanals 6 marlas situated on the Nakodar Road, in equal shares as per registered sale deed. On the basis of sale deed mutation was entered by Talwinder Singh, Patwari on 23.8.1999. On 7.9.1999, in connection with that mutation complainant had gone to the office of Halqa Patwari, for obtaining the certified copy of Jamabandi then Halqa Patwari namely Talwinder Singh, replied that certified copies are not issued in that manner. At the time of mutation, he had not offered any payment for his entertainment and for supplying the copy of jamabandi he would receive ` 2500/-. Complainant being poor requested to reduce the payment then accused agreed to receive ` 2000/- to supply the certified copy of the jamabandi. Payment was not with the complainant and by making false promise to arrange payment of ` 2000/- as illegal gratification on the next day, complainant came back from the office of the accused. On 8.9.1999, complainant along with Dalbara Singh, had gone to the office of Vigilance Bureau and had met DSP Amrik Singh. Complainant produced the currency notes of ` 2000/- consisting of 2 currency notes of the denomination of ` 500/- each and 10 currency notes of the denomination of ` 100/- each. Statement of the complainant Ex. PK, was recorded. Phenolphthalein powder was applied to the currency notes. Numbers of the marked currency notes were noted in the memo. Marked currency notes were returned to the complainant with a CRA-S-255-SB-2002 -3- direction to hand over only those currency notes to the accused on demand and not to shake hands with the accused. Dalbara Singh, was joined as a shadow witness and was directed to accompany the complainant and to hear the conversation amongst the accused and Bahadar Singh regarding demand and acceptance of illegal gratification and to give agreed signal to the raiding party. Solution was prepared by adding sodium carbonate. Demonstration was given to the complainant and the shadow witness as to how the colour of the solution turned into pink after coming into contact with phenolphthalein powder. Balbir Singh, Panchayat Secretary, was joined as official witness.
Raiding party had gone to the office of the accused.
Complainant and the shadow witness were sent to the office of the accused, other members of the raiding party stayed at some distance from the office of the accused. Complainant and the shadow witness had gone to the office of the accused situated on the first floor. Accused was found present in his office while doing official work. On seeing the complainant party accused told that he has already prepared certified copy of the jamabandi. Illegal gratification was demanded then complainant gave the marked currency notes to the accused and those currency notes were kept by the accused in the drawer of his table. Shadow witness gave agreed signal to the raiding party, then the raiding party headed by DSP Amrik Singh, had gone to the office of the accused. Accused was apprehended and at that time, he was holding the certified copy of the jamabandi Ex. PE, in his hands and tried to tear the same. Jamabandi was taken into police possession vide memo Ex. PF, attested by the witnesses. Solution was prepared by adding CRA-S-255-SB-2002 -4- sodium carbonate then hands of the accused were got washed in the solution. Colour of the solution turned from white to pink. Solution was transferred into a nip and nip was sealed by the Investigating Officer, with his own seal bearing impression 'DS'. Sealed nip Ex. P-13 was taken into police possession vide memo attested by the witnesses. As per direction of the DSP, Balbir Singh, had searched the drawer of the table of the accused. Marked currency notes were recovered from the drawer of the table. Numbers of the recovered currency notes were got compared with the numbers noted in the memo. Numbers had tallied. Recovered currency notes were taken into police possession vide memo Ex. PD, attested by the witnesses. On personal search of the accused nothing was recovered. Personal search memo Ex. PM was prepared. Rough site plan with its correct marginal notes was prepared. On return to the police station, case property was deposited with the incharge of the malkhana. After receipt of report of the laboratory and sanction to prosecute the accused, challan was presented in the Court.
Accused was charge-sheeted under Section 7 read with Section 13(2) of the Act, to which he pleaded not guilty and claimed trial.
In order to substantiate its case, prosecution examined number of witnesses.
PW-1 Suresh Kumar, Bill Clerk, DC Office, Jalandhar, stated that Talwinder Singh, was serving as Revenue Patwari. Sanction order Ex. PA, was issued by the Collector.
PW-2 MHC Varinder Kumar, tendered his affidavit Ex. PB. PW-3 Balbir Singh, Panchayat Secretary, stated that he CRA-S-255-SB-2002 -5- had joined the raiding party headed by DSP Amrik Singh. Office of the accused was raided. Two private persons were sent to the office of the accused. On receipt of agreed signal raid was conduced. Accused was found present in his office. Solution was prepared then hands of the accused were got washed in that solution. Colour of the solution turned into pink. Solution was transferred into a small bottle and the bottle was sealed. Sealed parcel was taken into police possession vide memo attested by the witnesses. On search of the table, marked currency notes were recovered. Numbers of the recovered currency notes were tallied with the numbers noted in the memo and had tallied with each other.
PW-4 Constable Sucha Singh, tendered his affidavit Ex. PC.
PW-5 Krishan, Kanungo, stated that jamabandi Ex. PE was prepared by the accused.
PW-6 Gurmail Chand, Clerk, Tehsil Office, Phillaur, stated that accused had joined as Revenue Patwari, on 8.5.89 and on 8.9.1999, he was the Patwari of Halqa Jandiala-II. Ex. PH/1 to Ex. PH/15 are the attested copies of the entries of his service book.
PW-7 Bahadar Singh, is the complainant. He has reiterated his stand before the police.
PW-8 Balbir Singh, is the shadow witness He has also supported the version of Bahadar Singh-complainant.
PW-9 DSP Amrik Singh, is the Investigating Officer. After close of the prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded. Accused denied all CRA-S-255-SB-2002 -6- the allegations of the prosecution and pleaded to be innocent.
Defence version of the accused is that complainant was pressurizing him to deliver the possession of front portion of the joint land out of the total land. He refused to oblige him because he was not competent. Land was in three different portions. Illegal gratification was not demanded or accepted from the complainant. Complainant was hand in glove with the DSP, Vigilance. False case was got registered against him. He was brought from his office in the presence of Santokh Singh, Sohan Singh, Patwaris, Balbir Singh lineman of PSEB and Ajit Singh, Lamberdar, Jandiala.
In defence, DW-1 Santokh Singh, appeared and stated that on 8.9.1999, he was present in his office. Talwinder Singh, was also serving as Revenue Patwari and his office was also in the same building at Jandiala. On that day he came to his office at about 9.00 a.m. and at 12.00 noon Ajit Singh, Lamberdar, came and enquired about Talwinder Singh. Ajit Singh, was requested to wait for some time. At 12.30 p.m. two persons came and also enquired about Talwinder Singh. They were also requested to wait. They had occupied the bench near the table. At about 1.00 p.m. Talwinder Singh came and had met all those persons and shook hands with each other. There was no exchange of money in his presence. They grappled with each other for some time. Then 5-7 persons came in the office. He was directed to leave the room. Accused was taken away by the police officials in a vehicle.
DW-2 Gurmail Singh, stated that on 8.9.1999, he was present in his office. At about 1.00 p.m. 5-6 persons came in civil dress CRA-S-255-SB-2002 -7- and started beating the accused. When he had gone to save the accused from those persons then his turban fell down. Specs was found lying broken on the ground. He was directed to leave the room. After one hour, accused was taken away from his office.
DW-3 Ajit Singh, stated that he is the Lamberdar of village Jandiala. Accused was known to him. On 8.9.1999, he had gone to the office of the accused to get the certified copy of the Fard at 12.30 p.m. Accused was not present in his office. He had enquired from Santokh Singh, Patwari, about the accused and reply was to wait for sometime. Thereafter two persons came to the office of the accused and enquired about him. They had also occupied the same bench. After 5-10 minutes accused came and shook hands with them. 5-7 persons came there and started grappling with the accused when they tried to save the accused then he was pushed out of the room. Accused was taken away by those persons.
After hearing learned Additional Public Prosecutor for the State, learned defence counsel and from the perusal of evidence available on file, appellant was convicted and sentenced as stated aforesaid.
I have heard learned counsel for the appellants, learned State counsel and carefully gone through the evidence available on the file.
Learned defence counsel for the appellant argued that according to the prosecution story land measuring 2 kanals 6 marlas was purchased by the complainant and his friend and on the basis of sale deed mutation was entered but at that time there was no demand CRA-S-255-SB-2002 -8- of illegal gratification. If the appellant had the intention to demand illegal gratification then while entering the mutation, appellant should have demanded illegal gratification. After entering mutation, there was no reason to demand illegal gratification to issue the copy of jamabandi. Complainant had the motive to implicate the appellant because on the basis of sale deed complainant was pressurizing the appellant to give possession of better portion touching the main road but the appellant was not in a position to give possession of the portion touching the main road. Complainant was the leader of Akali Party and appellant was a poor Patwari, so appellant cannot dare to demand illegal gratification from a Akali leader. Complainant had purchased the plot jointly with his friend namely Bahadar Singh S/o Balbir Singh but he was not produced as prosecution witness for the reasons best known to the prosecution. Office of the appellant was in a Bazar. Independent witnesses were available but no one was joined from Bazar. Number of discrepancies in the statements of the prosecution witnesses. Discrepancies cannot be reconciled. Minor discrepancies were possible with the passage of time but when discrepancies cannot be reconciled then statements of the witnesses are to be discarded. Earlier to the raid, shadow witness was not known to the appellant. In the presence of a stranger there was no idea to demand illegal gratification. Evidence on file was not rightly scrutinized by the trial Court.
Learned State counsel argued that independent witness was with the raiding party. To issue copies of jamabandi illegal gratification was demanded and demand was in the presence of shadow witness. Tainted currency notes were recovered from the CRA-S-255-SB-2002 -9- appellant. Minor discrepancies in the statements of PWs. Discrepancies rather shows that story is natural one. Before the present occurrence, complainant party was not inimical towards the appellant. There was no application of demarcation. Appellant was to supply only the copy of jamabandi. If at the time of entering mutation there was no demand of illegal gratification then subsequently there was no bar to demand illegal gratification.
According to the prosecution story, on 7.9.1999, appellant had demanded illegal gratification to supply the copy of jamabandi. Matter was brought to the notice of Vigilance Department and on 8.9.1999, raid was conducted. In the presence of Dalbara Singh, illegal gratification was demanded from the complainant. Marked currency notes were kept in the drawer of the table. Agreed signal was given to the raiding party headed by DSP Amrik Singh by the shadow witness then the appellant was apprehended. Marked currency notes were recovered from the drawer of the table whereas defence version of the appellant was that complainant was pressurizing him to deliver actual possession of the front portion touching the main road as per registered sale deed but he was not competent to deliver actual possession of the front portion. There was no demand of illegal gratification. False case was got registered. In the presence of Santokh Singh and Sohan Singh-Patwaris, Balbir Singh lineman of PSEB and Ajit Singh, Lamberdar, Jandiala, appellant was brought from his office. Now, the question is whether prosecution story inspires confidence or defence version seems to be more probable than the prosecution story?
First submission of the learned defence counsel for the CRA-S-255-SB-2002 -10- appellant was that complainant along with his partner Bahadar Singh, had purchased land measuring 2 kanals 6 marlas. On the basis of sale deed mutation was entered but there was no demand of illegal gratification. After entering the mutation there was no idea to demand illegal gratification to issue the copy of jamabandi. Prosecution story seems to be un-natural but after going through the evidence on file, I am not in a position to agree with this submission of the learned defence counsel for the appellant.
Admittedly, complainant along with his partner Bahadar Singh, had purchased land measuring 2 kanals 6 marlas and on the basis of sale deed mutation was entered. At the time of entering mutation by the appellant there was no demand of illegal gratification but after entering mutation when copy of jamabandi was demanded by the complainant then appellant had demanded illegal gratification by saying that at the time of entering mutation there was no payment for entertainment of the appellant so without payment of illegal gratification copy of jamabandi was not to be supplied. In case at the time of entering mutation there was no demand of illegal gratification then it does not mean that in future appellant was not expected to demand illegal gratification. All depends upon the circumstances of the case as to when the official was to demand illegal gratification. If no demand of illegal gratification while entering the mutation as per registered sale deed then prosecution story is not to be ignored on the allegation that there was no demand of illegal gratification at the time of entering mutation then no question of demand of illegal gratification while issuing the copy of jamabandi.
CRA-S-255-SB-2002 -11-
Next submission of the learned counsel for the appellant is that Bahadar Singh-complainant was the supporter of the Akali Party. He was a Circle Jathedar and was an influential person. Appellant was serving as a Revenue Patwari and cannot dare to demand illegal gratification from the complainant. In fact as per sale deed, complainant was pressurizing the appellant to hand over actual possession of the specific portion touching the main road but the appellant was not in a position to deliver actual possession of some portion touching the main road. Complainant was known to the Investigating Officer, so false implication at the instance of complainant but this submission of the learned defence counsel for the appellant is without any force. No evidence on file that complainant was the friend of the Investigating Officer. Investigating Officer, while appearing as PW-9 then stated that before and after the raid complainant had never met him. No evidence on the file that appellant was knowing at the time of demand of copy of jamabandi that complainant was the Circle Jathedar of the Akali Party. Suppose at the time of raid, complainant was the Circle Jathedar of the Akali Party and this fact was in the knowledge of the appellant then there was no bar to demand illegal gratification. Illegal gratification was demanded by the appellant to issue the copy of jamabandi because earlier while entering the mutation as per registered sale deed complainant failed to entertain the appellant. Investigating Officer, was not inimical towards the appellant. When the Investigating Officer, had no friendship with the complainant and was not inimical towards the appellant then there was no idea to implicate the appellant at the instance of Bahadar Singh-complainant. There was a motive of false CRA-S-255-SB-2002 -12- implication if complainant had friendship with the Investigating Officer and the Investigating Officer, was inimical towards the appellant. No evidence on the file that at the time of raid Akali party was in power. If we presume that Akali party was in power then there was no reason to implicate the appellant at the instance of Bahadar Singh. As per registered sale deed, mutation was entered by the appellant. Mutation was to be sanctioned by the higher authorities. As per sale deed, appellant was simply to supply the copy of jamabandi. There was no application for demarcation. If complainant was pressurizing the appellant to deliver the actual possession of the portion touching the main road and the appellant was not in a position to deliver actual possession of the portion then he could easily gave a note in the "Roznamcha Vakiyati". Matter should be brought to the notice of higher authorities that the complainant is pressurizing him to deliver actual possession of the portion touching the main road.
In 2010 (2) RCR (Criminal) 663 "Gurdial Singh Vs. State of Punjab" Office Kanungo, demanded illegal gratification for demarcation of land. Complainant and the shadow witness were inimical towards the Office Kanungo. Both made contradictory statements. No independent witness was joined. Investigating Officer, was also not examined. Complainant stated that there was no demand of illegal gratification. When the trap witnesses are interested and inimical witnesses and they are qualitatively inferior in the testimonies then no reliance could be placed on such witnesses but the authority cited by the learned counsel for the appellant is not helpful because in the present case nothing on the file that the complainant and the CRA-S-255-SB-2002 -13- shadow witness were relatives and were inimical towards the appellant. Complainant and the shadow witness while appearing as PWs have fully supported the prosecution story. Independent witness namely Balbir Singh, Panchayat Secretary, was also with the raiding party and also supported the version of the complainant and the shadow witness. Investigating Officer, also appeared as PW-9. When the complainant and the shadow witness were not inimical towards the appellant then no reason to discard their testimonies.
Next submission of the learned defence counsel for the appellant was that Bahadar Singh, partner of the complainant had also gone to the office of the Vigilance Bureau but he was not examined, for the reasons best known to the prosecution. Non-appearance of Bahadar Singh, partner of the complainant is fatal but this submission of the learned defence counsel for the appellant is without any force. Undisputedly, land measuring 2 kanals 6 marlas was purchased by Bahadar Singh-complainant and his partner Bahadar Singh S/o Balbir Singh. Only complainant had gone to the office of the appellant. To supply certified copy of jamabandi there was a demand of illegal gratification. Bahadar Singh-complainant while appearing as PW-7 then stated that he along with Dalbara Singh, had gone to the office of Vigilance Bureau. Dalbara Singh, was joined as shadow witness. His partner Bahadar Singh S/o Balbir Singh, had also gone to the office of DSP, Vigilance Bureau, but the (complainant) has not stated a word that Bahadar Singh, was with the raiding party or in his presence appellant had demanded illegal gratification to issue copy of jamabandi. So, non- appearance of Bahadar Singh S/o Balbir Singh, partner of the CRA-S-255-SB-2002 -14- complainant is not fatal.
Learned defence counsel for the appellant argued that tainted currency notes were recovered from the drawer of the table. As per prosecution witnesses, drawer was locked but Bahadar Singh- complainant has not stated a word that he had shaken hands with the appellant. Dalbara Singh, independent witness appeared as PW-8, did not state a word that after marked currency notes were handed over to the appellant on demand then the complainant had also shaken hands with the appellant. Case of the prosecution is that when the complainant party had gone to the office of the appellant then appellant had already prepared the copy of jamabandi. Illegal gratification was demanded and marked currency notes were handed over to the appellant. Marked currency notes were kept by the appellant in the drawer of his table. No suggestion to the witnesses that in the drawer of the table marked currency notes were forcibly kept by the complainant party. Three DWs appeared in defence but they had not stated a word that complainant or the shadow witness had kept the marked currency notes in the drawer of the appellant. Recovery of marked currency notes was from the drawer of the table of the appellant. No explanation from the side of the appellant as to how marked currency notes were kept in the drawer of the table. To convict the appellant under the Corruption Act, prosecution was required to lead cogent and convincing evidence that firstly there was a demand of illegal gratification, the same was accepted by the appellant and lastly there was a recovery of marked currency notes. As discussed earlier, complainant and shadow witness categorically stated that appellant had CRA-S-255-SB-2002 -15- demanded illegal gratification to issue certified copy of jamabandi because earlier while entering the mutation appellant was not entertained by the complainant party. On 7.9.1999, complainant was not in possession of the payment and by making false excuse to make payment on the next day, had left the office of the appellant. On 8.9.1999, complainant had brought this entire episode to the notice of the shadow witness namely, Dalbara Singh. Complainant and the shadow witness had approached the Vigilance Bureau. As per statements of the complainant and the shadow witness, they had gone to the office of the appellant and on demand of illegal gratification, marked currency notes were handed over to the appellant by the complainant then agreed signal was given by the shadow witness. When no suggestion to any of the witnesses as to how marked currency notes were kept in the drawer of the table of the complainant then I am of the opinion that story qua demand and acceptance of illegal gratification was correct one, in view of the statements of the complainant and shadow witness.
Next submission of the learned defence counsel for the appellant was that office of the appellant was in the heart of the city. Independent witnesses were available but no one was joined from Jandiala. Independent witness joined failed to support the prosecution story. Statements of the complainant and shadow witness without independent corroboration are not sufficient for conviction of the appellant.
Admittedly, office of the appellant was in the heart of the city. Number of independent witnesses were available but independent CRA-S-255-SB-2002 -16- witness was already with the raiding party. Balbir Singh, Panchayat Secretary, was joined as official witness. Investigating Officer stated that an effort was made to join independent witness but no one was ready to join as independent witness. Balbir Singh, while appearing as PW-3 has supported the prosecution story on material points. Minor discrepancies in the statements of the prosecution witnesses but the same have occurred with the passage of time. Raid was conducted on 8.9.1999. Complainant, shadow witness and the official witness appeared after the expiry of 2 years. Minor discrepancies were found to occur. If after expiry of two years, there was no discrepancy then witnesses are criticized as tutored one. If there are some minor discrepancies then again witnesses are criticized being official witness but the question is why to disbelieve the prosecution witnesses when they had no enmity with the appellant. Discrepancies rather shows that story is natural one. When Balbir Singh, independent witness was with the raiding party then there was no idea to join any other witness from Jandiala town. In case, raiding party tried to join any independent witness then very purpose of the raid was to be defeated. Balbir Singh, Panchayat Secretary, was not inimical towards the appellant. Suggestion was given to Balbir Singh, that appellant was given beatings by the raiding party. Second suggestion to the witness was that his signatures were obtained in the office. Similarly suggestion was given to Bahadar Singh-complainant that Kanungo was already present in the office and he was pressurizing the appellant to give actual possession of the front portion touching the main road but no suggestion to Dalbara Singh, shadow witness or Investigating Officer that the raiding party CRA-S-255-SB-2002 -17- gave beatings to the appellant. According to the shadow witness, after two minutes DSP, along with other officials came to the office of the appellant as per agreed signal whereas second witness stated that after half an hour raiding party came to the office of the appellant. Shadow witness stated that appellant was seen while counting the currency notes and tried to tear the Fard. Bahadar Singh-complainant stated that hands of the appellant were got washed by the DSP. DSP Amrik Singh, had not washed his own hands whereas Dalbara Singh-shadow witness, stated that hands of the appellant were got washed by Balbir Singh. Contrary to the statement of Dalbara Singh, DSP Amrik Singh (PW-9) stated that he got the hands of the appellant washed. So all this shows that there are minor discrepancies in the statements of prosecution witnesses. No one from Jandiala town was joined as independent witness was already with the party. He was not inimical towards the appellant. So, nothing to disbelieve the prosecution witnesses, if there was no independent witnesses from Jandiala town.
Next submission of the learned counsel for the appellant was that shadow witness was not earlier known to the appellant. He was a stranger to the appellant. In the presence of a stranger there was no idea to demand illegal gratification.
In 1991 (1) RCR (Criminal) 694, "Prithi Pal Singh Vs. The State of Punjab", allegation of the prosecution was that accused accepted bribe money in the presence of shadow witness. Shadow witness was stranger to the accused. Story was not believed on the allegation that accused was not expected to accept bribe in the presence of a stranger but facts of the present case are different from CRA-S-255-SB-2002 -18- the above cited authority. Complainant in examination-in-chief, stated that when he along with the shadow witness had gone to the office of the appellant then he (appellant) was present in his office. He demanded payment. He had handed over the marked currency notes to the appellant and those currency notes were kept by the appellant in the drawer of his table. Appellant had already prepared the certified copy of jamabandi but Balbir Singh, Panchayat Secretary, stated that when they had gone to the office of the appellant as per agreed signal by the private person then appellant was found present in his office while counting the currency notes. Appellant had also tried to tear the Fard. Balbir Singh, was confronted with his statement under Section 161 Cr.P.C. but in examination-in-chief, simply to help the appellant he has stated that appellant was seen while counting the currency notes when raiding party had gone to his office. Earlier to the present occurrence, complainant was known to the appellant because as per registered sale deed mutation was entered by the appellant. Again complainant had gone to the office of the appellant to obtain the certified copy of the jamabandi but at that time appellant had demanded illegal gratification. Matter was brought to the notice of the shadow witness and after that complainant along with the shadow witness had gone to the office of the Vigilance Bureau. On 7.9.1999, complainant had left the office of the appellant by making false excuse to bring payment on the next day because on that day he was not in possession of payment. As per prosecution story, copy of jamabandi was prepared by the appellant. When on 8.9.1999, complainant had gone to the office of the appellant to get the copy of jamabandi then appellant had CRA-S-255-SB-2002 -19- demanded payment. Shadow witness was also present in the office. According to defence version, Santokh Singh and Sohan Singh- Patwaris, Balbir Singh lineman of PSEB and Ajit Singh, Lamberdar, Jandiala, were present in this office. When illegal gratification was accepted by the appellant then shadow witness gave agreed signal to the raiding party. Prosecution story, is not to be ignored on the allegation that demand was in the presence of a stranger. If the demand was not in the presence of a stranger then question is how marked currency notes were found lying in the drawer of the table of the appellant, when no case of the appellant that payment was forcibly kept in the drawer by the complainant or the shadow witness.
Next submission of the learned counsel for the appellant was that in fact on 8.9.1999, Santokh Singh, Patwari, was present in his office. Ajit Singh, Lamberdar came at about 12.00 noon but at that time appellant was not present in his office. At about 12.30 p.m. when complainant along with the shadow witness came at that time also appellant was not present. When appellant came at 1.30 p.m. then 5-7 persons came to the office of the appellant and they started grappling with the appellant. Appellant was given beatings. Santokh Singh and Sohan Singh-Patwaris, Balbir Singh lineman of PSEB and Ajit Singh, Lamberdar, Jandiala, were present in his office when appellant was brought to the police station and this fact is clear from statements of DW-1 Santokh Singh-Patwari, Gurmail Singh, ALM, PSEB and Ajit Singh, Lamberdar, Jandiala but submission of the learned defence counsel for the appellant is an after-thought. No suggestion was given to the complainant, shadow-witness, official witness and the CRA-S-255-SB-2002 -20- Investigating Officer, that at the time of raid Santokh Singh and Sohan Singh- Patwaris, Balbir Singh lineman of PSEB and Ajit Singh, Lamberdar, Jandiala, were present in the office of the appellant. According to prosecution story, Kewal Krishan, Kanungo, came to the spot afterwards. Office of Kanungo, was on the ground floor whereas office of the appellant was on the first floor. No suggestion to Kewal Krishan, Kanungo, that he was present at the time of raid. Santokh Singh (DW-1), in examination-in-chief, stated that at about 12.00 noon Ajit Singh, Lamberdar, came to the office of the appellant but at that time appellant was not present in his office and at about 12.30 p.m. two person came but at that time also appellant was not present. At 1.00 p.m. appellant came, after that 5-7 persons came and started grappling with the appellant. In cross-examination, admitted that DSP Amrik Singh, was amongst those persons who came there but no suggestion to the prosecution witnesses that at 12.00 noon Ajit Singh, Lamberdar, came to the office of the appellant and after half an hour two persons came and ultimately after the arrival of the appellant, 5-7 persons came and grappled with the appellant and appellant was given beatings.
DW-2 Gurmail Singh, stated that he was present in the office of the appellant. At about 1.00 p.m. 5-6 persons came in civil dress and started giving beatings to the appellant. He tried to save the appellant then his turban fell down. Specs of the appellant was lying broken on the ground. He was turned out of the room but his statement is without any evidentiary value because his office was on the ground floor. No explanation for what purpose he had gone to the office of the CRA-S-255-SB-2002 -21- appellant. Appellant when examined under Section 313 Cr.P.C. then did not state a word that Gurmail Singh, Lineman, was also present in his office at the time of raid. Defence version of the appellant is that Balbir Singh, lineman was present in his office along with two Patwaris and Ajit Singh, Lamberdar. Appellant did not state a word that he was given beatings and his turban fell down and his specs were also damaged.
DW-3 Ajit Singh, Lamberdar, stated that he had gone to the office of the appellant but he was not present. Santokh Singh, Patwari was present in the office. After that two persons came but at that time also appellant was not present in his office. When appellant came then 5-7 persons came and started grappling with the appellant. Statement of Ajit Singh, DW-3 is also an after-thought. No explanation for what purpose he had gone to the office of the appellant. As per DW-3, he had gone to the office of the appellant to get the copy of the jamabandi but till today no application for getting copy of jamabandi. Ajit Singh, did not state a word that appellant was given beatings. If Ajit Singh, had gone to the office of the appellant to get the copy of the jamabandi or anything else then why no application till today. It is very easy to examine 2-3 persons in defence to state that appellant was brought from his office without any reason. There was no demand of illegal gratification. If Santokh Singh,Gurmail Singh and Ajit Singh, were very much present in the office of the appellant at the time of raid then learned defence counsel should have specifically put questions to the witnesses i.e. the complainant, shadow witness and official witness that at the time of raid Santokh Singh, Gurmail Singh and Ajit Singh, were CRA-S-255-SB-2002 -22- present and in their presence appellant was given beatings and was brought from his office. If there was not demand of illegal gratification and the appellant was given beatings by the raiding party in civil dress then complaint in writing could easily be sent to different authorities. A note could easily be given in the roznamcha maintained by the Patwari. All this shows that defence version is an afterthought. Jamabandi prepared by the appellant was recovered from his office at the time of raid. If there was no demand of certified copy of jamabandi then question is why copy of jamabandi was prepared by the appellant. No case of the appellant that under threat he was directed to prepare the copy of jamabandi and after getting the copy prepared the same was taken into police possession. In fact on 7.9.1999, complainant had demanded copy of jamabandi but to issue copy there was a demand of illegal gratification. Complainant promised to make payment on the next day. In the meantime, complainant party had informed the Vigilance Department. Before raid appellant had prepared the copy of jamabandi with this idea that the complainant would come and after receipt of payment copy is to be supplied. At the time of raid there was a hand wash. Report of the laboratory also supports the prosecution story.
In view of all discussed above, I am of the opinion that evidence on the file was rightly scrutinized by the trial Court. There is no infirmity or illegality in the impugned judgment and the same is upheld.
Last submission of the learned defence counsel for the appellant was that at the time of conviction appellant was 45 years old. CRA-S-255-SB-2002 -23- He is a poor person. He was the only bread winner of his family. Children of the appellant are unmarried. Requested to take lenient view.
Submission of the learned defence counsel for the appellant seems to be reasonable one. Appellant was 45 years old at the time of conviction and had unmarried children. He was the only bread winner of his family. After conviction he has lost his job and has suffered the agony of protracted trial for the last 11 years, so, I take lenient view and instead of directing the appellant to undergo imprisonment as ordered by the trial Court, appellant is directed to undergo imprisonment for 1 year under Section 7 read with Section 13 (2) of the Act. Fine maintained.
For the reasons recorded above, appeal without merits is dismissed with the abovesaid modification on the point of sentence.
Appellant is on bail. He is directed to surrender before the concerned authority to undergo imprisonment as ordered by this Court, failing which learned Chief Judicial Magistrate, Jalandhar, is directed to issue re-arrest warrants against the appellant to undergo imprisonment as ordered.
February 22, 2011 ( JORA SINGH ) rishu JUDGE