Punjab-Haryana High Court
Bhagwant Singh vs State Of Punjab on 17 December, 2014
CRA-S-1432-SB of 2009 -1
IN THE HIGH COURT OF PUNJAB AND HARYANA AT
CHANDIGARH
CRA-S-1432-SB of 2009
Date of Decision : December 17, 2014
Bhagwant Singh
..... Appellant
Vs.
State of Punjab
..... Respondent
CORAM: HON'BLE MRS. JUSTICE RAJ RAHUL GARG
1. Whether Reporters of 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. G.S.Ghuman Advocate with
Mr. Baljinder Singh, Advocate
for the appellant.
Ms. Minakshi Goyal, AAG, Punjab.
RAJ RAHUL GARG, J
This appeal is directed against the judgment of conviction dated 11.05.2009 and order of sentence of the even date whereby the appellant was convicted and sentenced for committing offence punishable under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988 ( hereinafter to be called ' P.C.Act'). For committing offence punishable under Section 7 of the P.C. Act, he was sentenced to undergo rigorous imprisonment for one year and to pay a fine of `2500/-. In default of payment of fine, to further undergo rigorous imprisonment for three months. For committing offence punishable SMRITI under Section 13 (2) of the P.C. Act, the appellant was sentenced to 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -2 undergo rigorous imprisonment for one year and to pay a fine of `2500/-. In default of payment of fine, to further undergo rigorous imprisonment for three months. Both the substantive sentences were ordered to run concurrently. The aforesaid judgment of conviction was rendered by Sh. B.K.Mehta, the then Special Judge, Jalandhar.
The case of the prosecution as projected before the learned trial Court was that; a complaint was filed against Sh. Balwant Rai, Ration Depot Holder of village Gatti Rai Pur, Shahkot District Jalandhar, by some residents of the village. AFSO marked inquiry against Balwant Rai to Inspector Bhagwant Singh (accused) who was working with Food and Supplies Department. Accused accompanied with Harbhajan Singh Sub Inspector met Balwant Rai on 16.12.2003 and 23.12.2003 and asked him to approach him on 24.12.2003 and on that day Bhagwant Singh is alleged to have demanded a sum of ` 3,000/- from the complainant (Balwant Rai) as illegal gratification for giving a report in his favour. However, on pleadings of complainant, the amount was settled at `1800/-. Since Balwant Rai was not keen to illegally gratify Bhagwant Singh he instead went to Vigilance Bureau, Jalandhar accompanied with Jagdish Kumar (PW-4) and narrated entire matter to DSP Harbhajan Sarup. On the basis of complaint made by Balwant Rai, the FIR was lodged.
DSP Harbhajan Sarup requisitioned services of Karnail Singh (PW-11) and Narinderjit Kaur (PW-8) from the office of District SMRITI Social Welfare Officer and District Statistical Officer, Jalandhar 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -3 respectively and joined them in the raiding party. Balwant Rai produced before DSP Harbhajan Sarup three currency notes of the denomination of ` 500 each and three notes of denomination of `100 each, totaling `1800/-. DSP Harbhajan Sarup applied phenolphthalein powder on those currency notes and returned them to Balwant Rai asking him to hand over those notes to the accused only on demand by him. DSP Harbhajan Sarup noted numbers of the aforesaid currency notes and prepared memo Ex. PB. He demonstrated to all i.e. Balwant Rai, Jarnail Singh, Karnail Singh and Narinderjit Kaur as to how phenolphthalein treated piece of paper would turn milky white colour of solution of water and sodium carbonate into pink. That pink turned solution was thrown away. DSP Harbhajan Sarup and Balwant Rai washed their hands. Jagdish Kumar (PW-4) was directed to follow Balwant Rai to the accused and over hear the talks between Balwant Rai and the accused Bhagwant and to pass an agreed signal, the moment Bhagwant Singh accepts tainted currency notices from the complainant.
DSP Harbhajan Sarup has also directed Balwant Rai not to shake hands with the accused and he should hand over the money to the accused only on demand. Phenolphthalein powder was applied to the currency notes which were in the denomination of three notes of ` 500/- each and three notes of `100/- each. Thereafter, the aforesaid currency notes were handed over to the complainant vide memo Ex.
SMRITI PB. Raiding party was constituted and proceeded to the office of 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -4
accused which is situated on the first floor in Grain Market, Lohian. Complainant along with Jagdish Kumar went to the office of accused whereas the remaining members of the raiding party stopped at some distance short of the office of the accused. The accused was found present in his office and he inquired from the complainant whether he had brought the money to which complainant replied in affirmative. He handed over the money to the accused and had put the same in the pocket of his jacket. On receipt of agreed signal from Jagdish Kumar, DSP Harbhajan Sarup along with the other members of the raiding party had gone to the office of accused. On seeing the police party coming near him, he had tried to throw away the bribe money. In that process, `600/- currency notes had fallen on the ground. Those currency notes were of the denomination of one note of ` 500/- and one note of ` 100/- Two of the officials of the Vigilance Bureau caught hold of the accused by his arms. DSP Harbhajan Sarup, got prepared solution of water and sodium carbonate in a glass (tumbler) and when fingerprints of Balwant Rai were got dipped in that solution, its milky white colour turned into pink. That pink turned solution was put in a nip Ex. P-5 which was sealed by DSP Harbhajan Sarup with his seal bearing impression 'HS' and was taken into possession vide memo Ex. PC. DSP Harbhajan Sarup, then conducted personal search of the accused which led to the recovery of two currency notes of the denomination of `500 each and two currency notes of the SMRITI denomination of ` 100/- each from the right side pocket of the jacket of 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -5 the accused. Numbers of the currency notes which had fallen on the ground and which were recovered from the pocket tallied with the numbers mentioned in the memo Ex. PB. Those were the same currency notes which were taken into possession vide memo Ex.PD. This memo was attested by all the aforementioned witnesses. Thereafter, the accused was directed to remove his jacket and pocket of the jacket was got inverted. Separate solution of sodium carbonate and water was prepared. Pocked was dipped into that solution. The solution was turned into pink. That solution was also put in another nip and was sealed with the seal of 'HS' and taken into police possession vide memo Ex.PE jacket of the accused. Ex.P-13 was also taken into police possession vide this recovery memo. Memo was attested by the witnesses. Personal search of the accused was also conducted and certain currency notes were also recovered which were taken into possession vide memo Ex.PF. Record pertaining to inquiry against the complainant Balwant Rai was also taken into possession by the DSP Harbhajan Sarup vide memo Ex. PG. Attendance register Ex.PM showing the presence of the accused on that day in the office was also taken into possession vide memo Ex.PH. Nip containing the hand wash is Ex. P-5. Nip containing the pocked wash is Ex.P-6 and the recovered currency notes (bribe money) is Exs. P-7 to P-12.
Accused was arrested and after completion of investigation, challan was put in against the accused for committing offence SMRITI punishable under Sections 7 and 13 (2) of the P.C.Act. 2014.12.18 17:32 I attest to the accuracy and authenticity of this document
CRA-S-1432-SB of 2009 -6 Accused was charge sheeted by Sh. Kewal Krishan, the then Special Judge, Jalandhar, finding a prima facie case against the accused for committing an offence punishable under Sections 7 and 13 (2) of the P.C. Act for accepting bribe of `1800/- from Balwant Rai complainant by abusing his position as public servant as he agreed to give inquiry report in favour of complainant if he pays the bribe money.
After taking prosecution evidence, statement of accused under Section 313 Cr.P.C. was recorded, wherein accused denied the allegations of prosecution, pleaded his innocence and further that he has been falsely implicated.
In support of his defence, accused examined Daljit Singh as DW-1, Sucha Singh son of Bachint Singh as DW-2, Harbhajan Singh, Inspector Grade-1, office of District Food and Supplies Officer as DW- 3, Manjit Kaur as wife of Tarsem Lal as DW-4.
After hearing learned Additional Public Prosecutor for the State and learned defence counsel and appraising the evidence available on the file, learned Special Judge, passed the impugned judgment of conviction dated 11.05.2009 and order of sentence of even date as mentioned in the earlier part of the judgment.
I have heard learned counsel for the appellant and learned State counsel and apprised the entire evidence and material coming on record.
It was contended by learned counsel for the appellant that SMRITI the accused has been falsely implicated in this case and actually he 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -7 never demanded any bribe nor accepted the same. In order to falsify the prosecution case, he has pointed out several contradictions appearing in the statements of PW-3 (complainant) and PW-7 Harbhajan Sarup, Investigating Officer of the case. He pointed out that PW-3 Balwant Rai, deposed that he along with Jagdish Kumar had gone to the office of Vigilance Bureau at about 9:00 a.m and they reached the office of accused at 12:00 noon to 1:00 p.m. but as per Investigation Officer DSP Harbhajan Sarup, Balwant Rai came to his office at 10:00 a.m. and they reached the office of accused at about 1:30 p.m. He further contended that as per PW-3, accused was sitting in the courtyard whereas as per Investigation Officer he was present inside his room when they reached there. PW-3 deposed that report was taken into possession by the Vigilance officials that was shown to him, whereas, as per Investigating Officer report was not taken into possession which was made by accused against the complainant.
Of course, the aforesaid contradictions are there on the file yet these contradictions are minor contradictions and do not go the root of the case to discredit the case of the prosecution. In fact, contradiction regarding time is no contradiction at all.
It was next contended by learned counsel for the appellant that PW-4 Jagdish Kumar is the nephew (sister's son) of complainant. As such, Jagdish Kumar being relation witness is said to be interested in the success of the case. As such on the basis of the testimonies of relation witnesses, conviction cannot be based. SMRITI
Of course, Balwant Rai, complainant is the maternal uncle 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -8 of Jagdish Kumar yet only on that account, the statement of Jagdish Kumar cannot be brushed aside. In that eventuality, a heavy duty is cast upon the Court to scrutinize the statement of relation witnesses with great care and caution.
The present case is the case in which Jagdish Kumar is not the lone witness. Harbhajan Sarup (PW-7) is the Investigating Officer of the case. He is of the rank of DSP. He has fully supported the prosecution case as well corroborated the testimonies of Balwant Rai (PW-3) and Jagdish Kumar (PW-4). Not only these, even an independent witness Narinderjit Kaur (PW-8), Clerk in the office of District Economic and Statistical Officer, Jalandhar and Karnail Singh (PW-11), District Social Security Officer, Jalandhar of the office of Economic and Statistical Officer, Jalandhar, have fully supported the prosecution case and corroborated the statements of PW-3 and PW-4 so far as recovery of bribe money from the possession of accused is concerned. They were members of the raiding party. In their presence phenolphthalein powder was applied on the tainted currency notes and handed over the same to Jagdish Kumar with the instructions to give the same to the accused on demand and in their presence Jagdish Kumar was asked to act as a shadow witness with the directions to follow Balwant Rai-complainant and to over hear the talks between Balwant Rai and accused and then to pass an agreed signal, the moment Bhagwant Singh accepts tainted currency notes from the complainant. Thus, with the consistent statements of all the above mentioned SMRITI 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -9 witnesses, simply because PW-4 is the relation witness, his testimony cannot be disbelieved.
It was next contended by learned counsel for the appellant that there is discrepancy in the statement of PW-3 and PW-8 on the point that PW-3 deposed that on search of the pocket of accused, two currency notes in the denomination of `500/- and two currency notes in the denomination of `100/- were recovered. Whereas one currency note in the denomination of `100/- and two currency notes in the denomination of `500/- fell down on the ground. PW-8 Narinderjit Kaur also deposed that when DSP conducted search of the accused, three currency notes of the denomination of `500/- each and two currency notes of the denomination of `100/- were recovered from his pocket whereas DSP picked up two notes thrown by the accused on the floor. One of the denomination of `500/- and the other of `100/- and got tallied their serial numbers with the serial numbers already noted in Ex.PB to find them to be the same.
Thus, statements of these two witnesses are not in conformity with the prosecution case. If we total the currency notes then as per counsel for the appellant it would come to `2300/- whereas, as per prosecution case the bribe money was that of `1800/- only.
The above discrepancy in the statements of both the aforesaid PWs are there but this discrepancy does not make the prosecution case doubtful in the light of statements of PW-3, PW-4, PW-7, PW-8 and PW-11 on the file and further as the numbers of the SMRITI 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -10 recovered currency notes tallied with the numbers noted in memo. Ex.PB. There is not even an iota of evidence on the file to show the number of any one recovered currency notes which was not mentioned in memo Ex.PB or was different from the one mentioned in Ex.PB.
What is relevant is the fact as to if the currency notes on which phenolphthalein powder was applied and whose numbers were noted in memo Ex.PB, were actually handed over to the accused on demand and further as to if the recovered currency notes from the possession of accused were the same or not. On this point, the statements of all the aforesaid discussed witnesses are consistent and inspire confidence in the mind of the Court regarding guilt of the accused.
It was next contended by learned counsel for the appellant that Harbhajan Sarup, Investigating Officer did not offer his search before conducting search of the accused. In such circumstances, the search becomes illegal and accused is entitled to acquittal.
On this point, learned counsel for the appellant has cited the judgment titled as Satinder Kumar Vs. State of Punjab, 2006 (3) R.C.R. (Criminal) 12. The facts of the aforesaid cited judgment are different from the facts of the present case. The main difference is that in the case in hand, in fact accused had tried to throw away the bribe money and in that process `600/- i.e. currency notes in the denomination of ` 500/- and another currency note in the denomination of ` 100/- were dropped on the floor. Thus currency notes were picked SMRITI up by the Investigating Officer from the floor. The number of those 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -11 currency notes were found the same when tallied with the number of currency notes which were handed over to the complainant for passing the same to accused on demand as bribe and were noticed in Ex.PB. Under these circumstances, when accused was trying to destroy the evidence and when it was quite obvious for the Investigating Officer to know where he had kept the bribe money, in that eventuality, no benefit can be given to the accused on this account as well.
In was next contended by learned counsel for the appellant that in fact no independent witness was joined in the raiding party by the prosecution. So called independent witnesses PW-8 Narinderjit Kaur and PW-11 Karnail Singh are not independent witnesses. They are official witnesses. They are supposed to toe the line of the prosecution. As such for non-joining of independent witnesses, prosecution case cannot be said to be free from doubt.
The above arguments of learned counsel for the appellant is not sustainable as PW-8 and PW-11 may be the employees but they are from different office. They are the independent witnesses. They cannot be said to be in any way interested in the success of the case. They have no relation with the complainant. They are not even from the Department of Food and Supplies. As such, simply because they are the official witnesses, it cannot be said that prosecution failed to join independent witnesses in the raiding party.
Learned counsel for the appellant again cited the judgment tiled as State of Punjab Vs. Madan Mohan Lal Verma, 2013 (3) SMRITI R.C.R. (Criminal) 972 contending that it was held in the aforesaid case 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -12 that mere recovery of tainted money is not sufficient to convict the accused when substantive evidence in the case is not reliable, unless there is evidence to prove payment of bribe or to show that the money was taken voluntarily as a bribe.
The proposition propounded in the aforecited judgment is not disputed but the facts of the aforesaid case are all together different from the facts of the present case. In the aforesaid judgment, there was no witness of accepting bribe money whereas in the case in hand PW-3 Balwant Rai, categorically stated that when he had gone to the office of accused, accused asked him whether he had brought the money to which he replied in affirmative and then he had handed over the bribe money to him. PW-4 Jagdish Kumar categorically deposed that when accused accepted the bribe money he gave the agreed signal to the raiding party, whereupon, the raiding party reached on the spot. Not only this, even the facts of the present case are peculiar in nature. Accused, while seeing the police party coming near to him, had tried to destroy the evidence by taking out bribe money and throwing it away; out of which one currency note of the denomination of `500/- and one of the denomination of `100/- fell down on the ground whereas the remaining bribe money was recovered from the right side pocket of the jacket of the accused. Thus in the case in hand, recovery of bribe money from the possession of accused raises the presumption under Section 20 of the P.C. Act against the accused. In that eventuality, the burden of proof rests on the accused to displace the statutory SMRITI 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -13 presumption raised under Section 20 of the P.C. Act by brining on record evidence, either direct or circumstantial, to establish with reasonable probability, that the money was accepted by him, other than as a motive or reward as referred to in Section 7 of the P.C. Act. This defence has not been taken by the accused as is evident from his statement recorded under Section 313 Cr.P.C. Rather with the examination of DW-1 Daljit Singh, it stands proved on the file that the villagers of Gatti Raipur made a complaint against Balwant Rai complainant of this case that he was not running Ration Depot properly. He was not issuing ration meant for poor residents of the village. He also deposed that a complaint was marked to accused and on 23.12.2003 accused came to the village and made inquiry against Balwant Rai and recorded his statement as Ex.DB. Sucha Singh (DW-
2) also corroborated the fact that complaint received against Balwant Rai, Depot Holder, was marked by him to accused Bhagwant Singh for inquiry, who gave his inquiry report to him on 24.12.2003 i.e. Ex.DD and endorsed it to DFSC, Jalandhar and submitted it by hand on 26.12.2003. He further deposed that on account of Christmas, office of DFSC was closed on 25.12.2003. The report was returned to him saying that original ration cards of the complainant be also appended with the report. 27.12.2003 and 28.12.2003 were again holidays. On 26.12.2203, he had returned the report of Bhagwant Singh to him asking for doing the needful. During the course of his cross- examination he deposed that he did not meet District Food and SMRITI 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -14 Supplies Controller, Jalandhar personally on 26.12.2003. No order was made in writing by any official in the office of DFSC, Jalandhar or by DFSC, Jalandhar asking for copies of ration cards appended with the report. He further deposed that report allegedly made by accused Bhagwant Singh had not reached office of DFSC, Jalandhar by 29.12.2003. Thus it is not believable that without any order of the authorities, the report will be returned to Bhagwant Singh for doing needful. Had Bhagwant Singh, in fact submitted the report to the higher authorities, then in that eventuality there would have been some order of the authorities as without that; report cannot be returned.
Thus from the statement of defence witnesses itself it becomes evident that the complaint against Balwant Rai complainant of this case, was with the accused for inquiry and the report made by Bhagwant Singh was also with him.
It is unacceptable that report made by Bhagwant Singh in discharge of his public duty have been moving from one official to another and from one office to another without any noting thereupon. It is an unknown procedure what has been deposed by DW-2. If the report made by Bhagwant Singh was really submitted by him upto DFSC the report ought to have moved down wards likewise. DW-2 claims that the report was returned to him orally by the DFSC, which is not believable as nothing is done orally in the offices. As such there was cause for Bhagwant Singh to demand bribe money and to accept the bribe and since recovery of bribe money stands proved from the SMRITI 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -15 possession of accused, presumption of Section 20 of the P.C.Act, which the accused has failed to dislodge is also there, against the accused.
The findings of learned trial Court are detailed one and in favour of prosecution on the points, that Balwant Rai (PW-3) was a ration depot holder in village Gatti Raipur; a complaint was made against him by some residents of the village; that complaint was entrusted to Bhagwant Singh (accused) for inquiry and further that Bhagwant Singh is a public servant, an Inspector in Department of Food and Supplies of Punjab Government. On the day of trap, the inquiry report recorded by Bhagwant Singh- accused against the complainant, was with the accused; that accused demanded a sum of `1800/- from Balwant Rai on the day of incidence i.e. 29.12.2003; that on demand, bribe money i.e. `1800/- were handed over by the complainant to the accused and the same were accepted by him; on acceptance of bribe money by the accused, Jagdish Kumar (PW-4) gave an agreed signal to the raiding party whereupon the raiding party reached the office of accused and recovered tainted currency notes; numbers of the recovered currency notes tallied with the numbers mentioned in the memo handing over the currency notes to the complainant for giving the same to the accused on demand and lastly that presumption under Section 20 of the P.C.Act is also against the accused. As such, it is established on the file that there was demand of SMRITI `1800/- as bribe by the accused for giving inquiry report in favour of 2014.12.18 17:32 I attest to the accuracy and authenticity of this document CRA-S-1432-SB of 2009 -16 complainant and accused accepted the bribe money from the complainant which was recovered from his possession by the Investigating Officer. As such finding no illegality in the impugned judgment of conviction and order of sentence recorded by the learned trial Court, the same are, hereby, affirmed.
In view of the above said reasons, maintaining the judgment of conviction dated 11.05.2009 and order of sentence of even date, this appeal being without any merit, is ordered to be dismissed. If the appellant is on bail, his bail bonds, shall stand cancelled and he be taken in custody for serving the remaining period of sentence. The concerned Chief Judicial Magistrate, shall take necessary steps, to comply with the judgment, with due promptitude, keeping in view the applicability of the provisions of Section 428 of the Criminal Procedure Code, and submit compliance report, to this Court, within a period of two months, from the date of receipt of a copy thereof.
The District & Sessions Judge, Jalandhar, shall ensure that the directions are complied with, within the time frame, and the compliance report is submitted immediately thereafter.
The Registry shall keep track of the submission of compliance reports, and put up the papers whether the reports are received or not, within the time frame, immediately after the expiry thereof.
December 17, 2014 (RAJ RAHUL GARG) SMRITI smriti JUDGE 2014.12.18 17:32 I attest to the accuracy and authenticity of this document