Himachal Pradesh High Court
State Of H.P vs Suresh Kumar And Another on 5 November, 2020
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 495 of 2016 Reserved on : 30.10.2020 .
Decided on: 4.11.2020
State of H.P. ...Appellant.
VERSUS
Suresh Kumar and another ...Respondents
.
Coram r
The Hon'ble Mr.Justice Sureshwar Thakur, Judge.
Whether approved for reporting? yes For the Appellant: Mr. Narender Guleria, Addl. A.G. For the Respondent: Mr. Nareshwar Singh Chandel, Senior Advocate with Mr. Vinod Kumar Gupta, Advocate, for respondent No. 1.
Mr. Surinder Saklani, Advocate, for respondent No. 2.
_________________________________________________ Sureshwar Thakur, Judge ::: Downloaded on - 06/11/2020 20:18:55 :::HCHP ...2...
The State of H.P., becoming aggrieved, from, .
the verdict, of, acquittal, pronounced on 2.9.2015, upon session trial No. 02/2012, by the learned Special Judge, Mandi, hence has thereagainst preferred the extant appeal, before this Court. Therethrough(s), both the accused became acquitted, for a charge(s) drawn against them, under Section(s) 7, and, under Section 13(2), of, the Prevention of Corruption Act, and under Section 120-B, of, the Indian Penal Code, and, in respect whereof, FIR No. 16/2011, of, 1.3.2011, became lodged with the Police Station, State Vigilance and Anti Corruption Bureau, Mandi, District Mandi, H.P.
2. The genesis, of, the prosecution case, is, embodied, in the statement, made by the complainant, statement whereof, is, embodied in Ext. PW1/A, wherein he ascribes an inculpatory role, of, theirs' demanding illegal gratification, from him, and, he also makes ::: Downloaded on - 06/11/2020 20:18:55 :::HCHP ...3...
therein penal ascriptions qua him, vis-à-vis, his making .
payment(s), of, bribe money, to him/them. The work, in respect whereof, the afore demand, is alleged to be made by the afore, is, constituted, in the complainant, being awarded works, to, load and unload the commodity items, at Civil Supply Corporation Depot, at Jamsai. He also makes echoing(s) therein, vis-à-vis, after his drawing a sum of Rs. 1,34,000/- from the bank concerned, the accused asking him, to carry the afore sum(s), of, money, to him, at the office concerned, for ensuring that some amounts, of, money(s), become deducted therefrom, hence as payment(s), of, bribe money to him. The necessity, of, the complainants' hence succumbing to the afore demands, towards illegal gratification, as, made upon him, by the accused, is embedded in threats, of, cancellation, of, contracts, being meted to him, by the accused. In pursuance to the making, of, Ext. PW1/A, a ::: Downloaded on - 06/11/2020 20:18:55 :::HCHP ...4...
formal FIR, comprised in Ext. PW5/A, became lodged .
with the police station concerned.
3. A sum, of, Rs. 1,34,000/ was taken, into possession, through memo borne in Ext. PW1/B.Through memo, borne in Ext. PW1/C, the afore sum(s), of, money, was handed over to one Amar Singh. Also, through memo drawn, in Ext. PW1/E, a sum of Rs. 98,550/- was handed over to Amar Singh. However, through memo drawn in Ext. PW1/F, a sum of Rs. 35,450/- became recovered from the drawers, of, one Jeevna Thakur. At the outset, the afore recovered sum, was sealed in a cloth parcel, Ext. P4. Despite the afore sums, of, Rs.
35,450/-,becoming recovered, through memo Ext.
PW1/F, from the drawers, of, the table, assigned to co-
accused Jeevna Thakur, yet, hence obviously, when the afore sum became hence not treated with the chemical concerned, and nor was thereafter, accepted, from the ::: Downloaded on - 06/11/2020 20:18:55 :::HCHP ...5...
purported decoy witness, by the afore co-accused, Jeevna .
Thakur, nor the latter became nabbed red handed, hence with the afore moneys (i) thereupon, there was no necessity, vis-à-vis, the hands of each, of, the accused, being washed hence with the chemical concerned.
4. The apposite sanction, for prosecuting both the accused, became meted, by the competent authority, through memo Ext. PW9/A. Even if assumingly, there was any work, pending with both the accused, and, also, even if assuming that the apposite works, appertained to release of payment(s), for works done or performed by the accused, yet the issuance, of, a cheque carrying therein, a sum, of, Rs. 1,34,000/- and, also its encashment, though does perse, rather makes the charges to capsize, however, thereafter, it became incumbent, upon the prosecution, to (a) prove the trite factum, of, both the accused, being enjoined with the apposite duties, to ::: Downloaded on - 06/11/2020 20:18:55 :::HCHP ...6...
process the bills, of, the complainant, (b) and also to .
place on record, the cheque, carrying thereon, the signatures, of, any of the accused. However, the afore evidence has remained un-adduced, and, thereupon, even if assumingly, the report, of, the FSL concerned, works against both the accused, (c) thereupon, reiteratedly, for omission(s), of adduction, of, the afore imperative evidence, rather scuttles, the vigor, of, the charges, drawn against the accused. (d) Succinctly, the, pendency(ies), of, subjudice works, with the accused concerned, becomes, the, preponderant or the sine qua non, pleaded and firmly established, through adduction, of, cogent evidence, rather the apposite evidentiary fact,
(e) for therethrough(s), the demand, of, illegal gratification, purportedly, made by the accused, becoming cogently proven. Since the afore imperative evidence, for sustaining the charge, hence drawn under ::: Downloaded on - 06/11/2020 20:18:55 :::HCHP ...7...
the afore remains un-adduced, thereupon, the .
allegation, of, any demand, of, illegal gratification, being made by the accused, upon the complainant, gets completely shattered.
4. Be that as it may, even if, the accused were assumingly processing the bills, of, the complainant, and, also assumingly, they were dealing with the issuance, of, the apposite cheques, to the complainant, yet the untenable pretexts, if any, made by the accused, for belatedly issuing the cheque(s), did, imperatively, and, obviously, occur, prior to the issuance thereof, and, obviously, the afore stage comprised, the, actionable appropriate phase or stage, for the complainant, nursing any valid grievances, against the accused, (i) however, subject to the accused being beset with proven subjudice work, appertaining to the clearance, of, bills, of the complainant, vis-à-vis, the works done or performed by ::: Downloaded on - 06/11/2020 20:18:55 :::HCHP ...8...
him. Significantly, the afore evidence remained un- .
recoursed, by the complainant, and, also since the bill amount(s) were comprised, in, a cheque, and, also the amounts, borne therein, became drawn, by the accused, and also, their lacking, any evidence, vis-à-vis, any work, appertaining to the accused, processing the bills, of, the complainant, rather being subjudice with the accused, thereupon, there was no valid occasion, at any stage, for the accused, to raise any demand, of, illegal gratification, upon, the complainant.
5. Moreover, the preponderant, and, prominent factum, qua the complainant, completely resiling, from his previous statement, recorded in writing, and also, during his cross-examination, his denying, all, the suggestions, as, meted to him, by the learned Public Prosecutor concerned, after the latter seeking the trial Courts' approval, to declare him hostile, hence capitalizes ::: Downloaded on - 06/11/2020 20:18:55 :::HCHP ...9...
an inference,vis-à-vis, the charge drawn, against both the .
accused, remaining not established, as aptly concluded by the learned trial Judge.
6. In summa, the report, of, the FSL concerned, does not work, vis-à-vis, the prosecution, and, also, the, drawings, of, the memo, borne in Ext. PW1/C, and, in Ext. PW1/E, appears to be thoroughly enigmatic, (i) as despite the complaiant, encashing the afore cheque, and, also, despite both the accused, being not beset with any subjudice work, appertaining to the clearance, of, bills, vis-à-vis, works, done or performed, by the accused, and, the afore memo(s), yet became drawn. Also this Court finds it difficult to discover any valid reason, for, the, drawing(s), of, the afore memo(s), as, no explication, qua therewith, becomes furnished, either by the Investigating Officer, or by the complainant.
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7. For the reasons which have been recorded .
hereinabove, this Court holds that the learned trial Court has appraised the entire evidence, on record, in a wholesome and harmonious manner, and, the analysis thereof, by the learned trial Court, hence does not suffer, from, a perversity or absurdity of mis-appreciation and
8. to non-appreciation, of evidence, on record.
There is no merit in the appeal, and, the same is dismissed. The impugned judgment is affirmed and maintained. The records be sent down forthwith.
(Sureshwar Thakur) Judge 4.11. 2020 (kalpana) ::: Downloaded on - 06/11/2020 20:18:55 :::HCHP