Punjab-Haryana High Court
Pawan Kumar vs State Of Punjab And Another on 14 January, 2013
Author: Sabina
Bench: Sabina
CRA-S No.1684-SB of 2002 1
In the High Court of Punjab and Haryana at Chandigarh
CRA-S No.1684-SB of 2002
Date of decision: 14.1.2013
Pawan Kumar
......Appellant
Versus
State of Punjab and another .......Respondents
CORAM: HON'BLE MRS. JUSTICE SABINA
Present: Mr.J.S.Bedi, Advocate,
for the appellant.
Mr.G.S.Khandebad, DAG, Punjab.
****
JUDGMENT
SABINA, J.
Appellant has preferred this appeal challenging his conviction and sentence for commission of offence punishable under Section 7 of the Prevention of Corruption Act, 1988 (for short 'the Act') as ordered by the Special Judge vide judgment/ order dated 16.10.2002 in FIR No.43 dated 17.6.1996 registered at Police Station Vigilance Bureau, Patiala.
Prosecution story, in brief, is that appellant was working as Junior Engineer (iv) in the office of Assistant Executive Engineer, Punjab State Electirity Board, Sohana. A transformer had been installed in the fields of the complainant. However, the wires of the CRA-S No.1684-SB of 2002 2 transformer were stolen. Appellant was asked to re-instal the wires and restart the transformer. In this regard, the appellant raised a demand of ` 2,000/- from the complainant. The matter was settled at ` 1,000/-. Complainant approached the vigilance department along with shadow witness Kishore Singh on 17.6.1996. Complainant and the shadow witness were given demonstration with regard to working of the Phenol Phthalein Powder (P-Powder for short). Complainant handed over ten currency notes in the denomination of ` 100/- each to the Vigilance officer, who, in turn, returned the same to the complainant after application of P-Powder. Complainant was directed to hand over the tainted currency notes to the appellant on demand. Kishore Singh was directed to act as a shadow witness and give a signal to the raiding party after the tainted currency notes were accepted by the appellant on demand. Thereafter, the complainant and the shadow witness went inside the office of the appellant. Complainant handed over the tainted currency notes to the appellant on demand. The appellant kept the same in his shirt pocket. On receipt of signal from the shadow witness, the remaining raiding party reached the spot. When the hands of the appellant were washed in a solution of sodium carbonate, the colour of the solution turned pink. The tainted currency notes were recovered from the shirt pocket of the appellant. When the shirt pocket of the appellant was dipped in a solution of sodium carbonate, the colour of the solution turned pink.
After completion of investigation and necessary formalities, challan was presented against the appellant. Charge was framed against the appellant for commission of offence punishable CRA-S No.1684-SB of 2002 3 under Section 7 of the Act.
Prosecution led its evidence in support of its case. Appellant, when examined under Section 313 of the Code of Criminal Procedure, 1973 after the close of prosecution evidence, pleaded as under:-
"I am innocent. I never demanded any money from Surmukh Singh for installation of electric wires. I had not done any delay to prepare the estimate for installation of electric wires for the tubewell of Surmukh Singh. There was no electric motor in the name of Surmukh Singh complainant. The matter was reported by the Assistant Executive Engineer Distribution Sub Division, Sohana to the Senior Executive Engineer Distribution Division, Mohali that there is no electric motor in the name of Surmukh Singh. I never demanded nor I accepted any money from any person. The case has been planted against me due to department rivalry. No recovery was effected from me. I have been falsely involved in this case through Surmukh Singh, who was used as a false person to involve me in this false case."
In his defence, appellant examined DW-1 Bhupinder Singh.
Learned counsel for the appellant has vehemently submitted that the prosecution had miserably failed to prove its case. Complainant could not be examined during trial as he had died. From the cross-examination of the shadow witness, it was evident CRA-S No.1684-SB of 2002 4 that the prosecution had failed to prove the basic ingredients of demand of acceptance of bribe money to constitute the offence under Sections 7, 13 of the Act. In support of his arguments, learned counsel for the petitioner has placed reliance on the decision of the Apex Court in Banarsi Dass vs. State of Haryana 2010 (2) RCR (Criminal) 553, wherein, it was held as under:-
"13. In fact, the above principle is no way derivative but is a reiteration of the principle enunciated by this Court in Suraj Mal case (supra), where the Court had held that mere recovery by itself cannot prove the charge of prosecution against the accused in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money. Reference can also be made to the judgmentof this Court in Sita Ram v. State of Rajasthan [1975 (2) SCC 227], where similar view was taken.
14. The case of C.M. Girish Babu (supra) was registered under the Prevention of Corruption Act, 1988, Section 7 of which is in pari materia with Section 5 of the Prevention of Corruption Act, 1947. Section 20 of the 1988 Act raises a rebuttable presumption where the public servant accepts gratification other than legal remuneration, which presumption is absent in the 1947 Act. Despite this, the Court followed the principle that mere recovery of tainted money divorced from the circumstances under which it is paid would not be sufficient to convict the accused CRA-S No.1684-SB of 2002 5 despite presumption and, in fact, acquitted the accused in that case."
Learned State counsel, on the other hand, has submitted that the prosecution had been successful in proving its case. The trial Court had rightly ordered the conviction and sentence of the appellant under Section 7 of the Act.
After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed.
In the present case, complainant could not be examined during trial on account of his death.
PW-3 Bala Devi, who was posted as clerk in the office of Punjab State Electricity Board, Sohana, deposed that the application Ex.PH was marked to the appellant with regard to 100 KV transformer of village Manak Majra.
PW-4 Kishore Singh, shadow witness, deposed that on 17.6.1996, he joined police party. He was introduced to the complainant by the Deputy Superintendent of Police, Vigilance. Complainant Surmukh Singh had handed over 10 currency notes in the denomination of ` 100/- each to the Deputy Superintendent of Police, Vigilance. The said currency notes had been returned by the Deputy Superintendent of Police, Vigilance to the complainant after application of P-Powder. The complainant was directed to hand over the said currency notes to the appellant on demand. He had been directed to accompany the complainant to the office of the appellant and act as a shadow witness. He was further directed to give a signal to the raiding party after the tainted currency notes were CRA-S No.1684-SB of 2002 6 accepted by the appellant on demand. Thereafter, the raiding party had reached the spot. He had accompanied the complainant to the office of of the appellant, whereas, the remaining raiding party had stayed behind. The appellant was present in his office. Complainant handed over ` 1,000/- to the appellant on demand and the said amount was kept by the appellant in his left shirt pocket. Then he gave the signal to the police party. The Deputy Superintendent of Police Darshan Singh along with other officials reached the spot. The hands of the appellant were dipped in a solution of sodium carbonate and the colour of the solution turned pink. The tainted currency notes were recovered from the left shirt pocket of the appellant. He tallied the numbers of the currency notes with memo Ex.PO, which had been prepared earlier and the numbers of the currency notes tallied. The said currency notes were taken in police possession. When the shirt pocket of the appellant was dipped in a solution of sodium carbonate, the colour of the solution turned pink.
PW-4 Kishore Singh was working as Senior Assistant in the office of District Education Officer (Primary), Ropar. The said witness was not known to the complainant and was not inimical towards the appellant to have falsely involved him in this case. PW- 4 Kishore Singh is, thus, an independent witness and has fully supported the prosecution case in his examination-in-chief. The examination-in-chief of this witness was recorded on 13.3.2000. His cross-examination was deferred on the request of the defence counsel. Thereafter, the cross-examination of PW-4 was recorded on18.2.2002. During his cross-examination, PW-4 deposed that no CRA-S No.1684-SB of 2002 7 talk by the complainant had taken place in his presence with the appellant. Thus, he resiled from his statement. It appears that the time between the examination-in-chief and cross-examination of PW-4 was utilised by the appellant to win over the said witness.
PW-9 Dharmender Kumar also did not support the prosecution case.
Deputy Superintendent of Police, PW-12 Darshan Singh, investigating officer has deposed as per the prosecution case.
PW-1 Prem Singh has supported the prosecution case with regard to recovery of currency notes from the shirt pocket of the accused.
Thus, in the present case, complainant could not be examined during trial as he had died. The shadow witness had although supported the prosecution case in his examination-in-chief but as his cross- examination was deferred and his cross-examination was conducted after about two years, he did not support the prosecution case in his cross- examination. Apparently the time gap between his examination-in-chief and cross-examination was used by the appellant to win him over. But PW-1 Prem Singh and the investigating officer have duly supported the prosecution case on material aspects.
It has been held by the Apex Court in M.Narsinga Rao vs. State of Andhra Pradesh (SC) 2001 (1) RCR (Criminal) 95 as under:-
"12. While adverting to the first contention of the learned counsel we may reproduce Section 20(1) of the Act. [That sub- section is virtually the same as Section 4(1) of the predecessor Act of 1947].
"20 (1) Presumption where public servant accepts gratification other than legal remuneration. -(1) CRA-S No.1684-SB of 2002 8 Where, in any trial of an offence punishable under section 7 or section 11 or clause (a) or clause (b) of sub-section (1) of section 13 it is proved that an accused person has accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, any gratification (other than legal remuneration) or any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate."
13. Before proceeding further, we may point out that the expressions may presume and shall presume are defined in Section 4 of the Evidence Act. The presumptions falling under the former category are compendiously known as factual presumptions or discretionary presumptions and those falling under the latter as legal presumptions or compulsory presumptions. When the expression shall be presumed is employed in Section 20(1) of the Act it must have the same import of compulsion.
14.When the sub-section deals with legal presumption it CRA-S No.1684-SB of 2002 9 is to be understood as in terrorum i.e. in tone of a command that it has to be presumed that the accused accepted the gratification as a motive or reward for doing or forbearing to do any official act etc., if the condition envisaged in the former part of the section is satisfied. The only condition for drawing such a legal presumption under Section 20 is that during trial it should be proved that the accused has accepted or agreed to accept any gratification. The section does not say that the said condition should be satisfied through direct evidence. Its only requirement is that it must be proved that the accused has accepted or agreed to accept gratification. Direct evidence is one of the modes through which a fact can be proved. But that is not the only mode envisaged in the Evidence Act.
15. The word proof need be understood in the sense in which it is defined in the Evidence Act because proof depends upon the admissibility of evidence. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or consider its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. This is the definition given for the word proved in the Evidence Act. What is required is production of such materials on which the court can reasonably act to reach the supposition that a CRA-S No.1684-SB of 2002 10 fact exists. Proof of the fact depends upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting in any important matter concerning him. Fletcher Moulton L.J. in Hawkins vs. Powells Tillery Steam Coal Company, Ltd. 1911 (1) K.B. 988 observed like this:
" Proof does not mean proof to rigid mathematical demonstration, because that is impossible; it must mean such evidence as would induce a reasonable man to come to a particular conclusion".
16.The said observation has stood the test of time and can now be followed as the standard of proof. In reaching the conclusion the court can use the process of inferences to be drawn from facts produced or proved. Such inferences are akin to presumptions in law. Law gives absolute discretion to the court to presume the existence of any fact which it thinks likely to have happened. In that process the court may have regard to common course of natural events, human conduct, public or private business vis--vis the facts of the particular case. The discretion is clearly envisaged in Section 114 of the Evidence Act.
17. Presumption is an inference of a certain fact drawn from other proved facts. While inferring the existence of a fact from another, the court is only applying a process of CRA-S No.1684-SB of 2002 11 intelligent reasoning which the mind of a prudent man would do under similar circumstances. Presumption is not the final conclusion to be drawn from other facts. But it could as well be final if it remains undisturbed later. Presumption in Law of Evidence is a rule indicating the stage of shifting the burden of proof. From a certain fact or facts the court can draw an inference and that would remain until such inference is either disproved or dispelled.
18. For the purpose of reaching one conclusion the court can rely on a factual presumption. Unless the presumption is disproved or dispelled or rebutted, the court can treat the presumption as tantamounting to proof. However, as a caution of prudence we have to observe that it may be unsafe to use that presumption to draw yet another discretionary presumption unless there is a statutory compulsion. This Court has indicated so in Suresh Budharmal Kalani vs. State of Maharashtra [1998 (4) RCR (Criminal) 433 SC, 1998 (7) SCC 337]. A presumption can be drawn only from facts - and not from other presumptions by a process of probable and logical reasoning."
In the present case, the tainted currency notes have been proved to have been recovered from the shirt pocket of the appellant. When the shirt pocket of the appellant was dipped in the solution of sodium carbonate, the colour of the solution had turned pink. CRA-S No.1684-SB of 2002 12 Similarly when the fingers of the appellant had been dipped in a solution of sodium carbonate, the colour of the solution had turned pink. This shows that the appellant had dealt with the tainted currency notes. Thus, a reasonable presumption can be raised that the appellant had accepted the tainted currency notes towards illegal gratification. The appellant, on the other hand, has failed to rebut the said presumption.
In the facts and circumstances of the present case, learned trial Court had rightly ordered the conviction and sentence of the appellant under Section 7 of the Act. The judgment relied upon by the learned counsel for the appellant fails to advance the case of the appellant as the facts of the said case were different. In the said case even the recovery of the tainted currency notes had not been proved in accordance with law, whereas, in the present case, the prosecution has been successful in proving its case. No ground for interference by this Court is made out.
Accordingly, this appeal is dismissed.
(SABINA) JUDGE January 14, 2013 anita