Punjab-Haryana High Court
Ramesh Chander vs State Of Punjab on 9 September, 2010
Author: Jora Singh
Bench: Jora Singh
Crl.Appeal No.165-SB of 2002 1
IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH.
Crl.Appeal No.165-SB of 2002
Date of decision: 9.9.2010
Ramesh Chander
... Appellant
versus
State of Punjab
... Respondent
CORAM: HON'BLE MR. JUSTICE JORA SINGH.
Present: Mr. Sunil Chadha, Advocate,
for the appellant.
Mr.Arshwinder Singh, DAG, Punjab.
...
JORA SINGH, J.
Challenge in the present appeal by Ramesh Chander is to the judgment of conviction and order of sentence dated 12.1.2002 rendered by Special Judge, Fatehgarh Sahib, arising out of FIR No.14 dated 13.2.1995 under Sections 7/13(2) of Prevention of Corruption Act, 1988 (for short `the Act'), PS, Vigilance Bureau, Patiala.
By the said judgment, he was convicted under Sections 7/13(2) of the Act and sentenced to undergo RI for six months and to pay a fine of Rs.200/-, in default of payment of fine, to further undergo RI for fifteen days under Section 7 of the Act and to undergo RI for one year and to pay a fine of Rs.300/-, in default of payment of fine, to further undergo RI for fifteen days under Section 13(2) of the Act.
Prosecution story, in brief, is that Gurbhajan Singh, complainant, is the resident of Village Kotla Bajwara. He has three brothers. Elder brother was Gurbachan Singh and was residing in the fields. Earlier Gurbachan Singh and complainant Gurbhajan Singh were residing Crl.Appeal No.165-SB of 2002 2 together in the Village. Electric connection was in the name of Gurbachan Singh. On 9.2.1995, electric meter was checked by the officials of PSEB. Electric Connection was disconnected and on that day, complainant had gone to the office of PSEB, Bassi Pathana, Ghamandgarh Grid, and had met Ramesh Chander, Revenue Accountant. Ramesh Chander replied that his file was not received in the office. Complainant was requested to visit the office on Monday for release of connection. On 13.2.1995, complainant had gone to the office of PSEB, Bassi Pathana, Ghamandgarh Grid, and had met Ramesh Chander, Revenue Accountant. Accused had directed him to deposit Rs.2645/- as penalty. After that, he was to report for the release of connection and for that purpose, accused had demanded Rs.200/- as illegal gratification. Complainant was not willing to pay Rs.200/- as illegal gratification. Matter was reported to Harbhajan Singh son of Pritam Singh. Then complainant along with Harbhajan Singh had gone to the office of DSP, Vigilance Bureau. Entire story was brought to the notice of Sukhwinder Singh, DSP, Vigilance Bureau. Then statement of Gurbhajan Singh (Ex.PE) was recorded. Complainant had handed over three currency notes (two of the denomination of Rs.50/- each and one of the denomination of Rs.100/-). Phenolphthalein powder was used on the currency notes and were handed over to the complainant with a direction to hand over the tainted currency notes to the accused only on demand. Memo (Ex.PF) was prepared regarding handing over the currency notes to the complainant after noting numbers of the notes. Demonstration was also given to the complainant and Harbhajan Singh as to how the colour of the currency notes was to change. Harbhajan Singh was joined as shadow witness and was directed to accompany the complainant and hear the conversation amongst Crl.Appeal No.165-SB of 2002 3 the complainant and accused regarding demand and acceptance of illegal gratification and after acceptance of illegal gratification to give agreed signal to the raiding party. After making endorsement (Ex.PE/1) on the statement of complainant (Ex.PE), statement was sent to the police station, on the basis of which, formal FIR (Ex.PE/2) was recorded. Gurdev Singh, ADO, was joined as official witness and was introduced to the complainant and other members of the raiding party. Purpose of raiding party was also disclosed to the official witness. Complainant and shadow witness were sent to the office of the accused. Remaining members of raiding party stayed at some distance outside the office. At about 4.00 PM, shadow witness gave agreed signal to the raiding party and on receipt of signal, raiding party had gone to the office of the accused. Accused was in the room of SDO, where he was apprehended. DSP had disclosed his identity to the accused. Glass of water was arranged in which sodium carbonate was added. Then colour of the solution was not changed. After that, fingers of the hands of the accused were got washed in the same solution, then colour of solution was changed into light pink. Solution was transferred into a nip and the nip was made into a sealed parcel with the seal of DSP bearing impression `SS'. Sealed parcel was taken into police possession vide memo (Ex.PH) attested by the witnesses. Seal after its use was handed over to Gurdev Singh, ADO. Accused was searched and on search, marked currency notes were recovered from the left side pocket of the pants worn by the accused. Number of recovered currency notes were tallied with the assistance of ADO, and were found tallied with the numbers mentioned in memo (Ex.PF). Recovered currency notes were taken into police possession vide memo (Ex.PJ) attested by the witnesses. Pants of the accused was Crl.Appeal No.165-SB of 2002 4 removed and left pocket was washed in the solution prepared in the same manner by adding sodium carbonate. Colour was changed into light pink. Solution was transferred into a nip and was sealed with the seal of DSP bearing impression `SS'. Sealed parcel was taken into police possession vide separate memo attested by the witnesses. Seal after its use was handed over to ADO Gurdev Singh. Pants of the accused was also taken into police possession vide separate memo attested by the witnesses. On personal search of the accused, one purse was recovered containing driving license, one HMT watch and Rs.40/-. Rs.2640/- was recovered from another pocket of the coat. Currency notes, driving licence and watch were taken into police possession vide separate memo attested by the witnesses. Complainant had produced one receipt regarding deposit of Rs.2645/- and one application addressed to the SDO. Receipt (Ex.MO7) and application (Ex.MO8) were taken into police possession vide separate memo attested by the witnesses. Rough site plan with correct marginal notes was prepared. On return to the police station, case property was deposited with the MHC. On receipt of sanction to launch prosecution and after completion of investigation, challan was presented in the Court.
Accused was charged under Sections 7 and 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.
PW1 Gurcharan Singh, MHC, PW2 Constable Narinder Singh and PW3 Constable Gurmit Singh tendered their affidavits (Ex.PA, Ex.PB and Ex.PC), respectively.
PW4 Chet Ram, Senior Assistant, brought record and stated Crl.Appeal No.165-SB of 2002 5 that sanction to launch prosecution was issued vide order (Ex.PD) by the Chief Accounts Officer, PSEB, Patiala.
PW5 Gurbhajan Singh is the complainant and reiterated his stand before the DSP, Vigilance Bureau.
PW6 Harbhajan Singh was the shadow witness but he did not support the prosecution story and was declared hostile.
PW7 Sukhwinder Singh, DSP, is the Investigating Officer. After close of the prosecution evidence, statement of the accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent.
Defence version of the accused was as under:-
" On 13.2.1995 Gurbhajan Singh complainant met the SDO and made an application Ex-MO-8 to him. He marked that application to me. Accordingly, I calculated the amount of theft at Rs.2645/- on the basis of the checking sheet prepared by the JE, as per which the detected load was 3.600 KW against the sanctioned load of 2.440 KW. The complainant asked me to reduce the amount but I told him that I was helpless because the calculations have been done on the basis of the checking sheet of the JE and countersigned by the SDO. The complainant Gurbhajan Singh, who happens to be a Sarpanch, felt dis-pleased by my refusal to reduce the amount of theft. The complainant also asked me to recommend the installation of a new meter in his name instead of his brother, Shri Gurbachan Singh's name. I told the complainant that it was also not within my competence because many legal Crl.Appeal No.165-SB of 2002 6 formalities were required before it could be done. This added to anger of the complainant and he left away in an agitated mood telling that he had not brought such a heavy amount and will come again.
The complainant then came back at about 3.30 P.M. on the same day and gave the amount of Rs.2650/- and asked me for the issue of the receipt. I went to the adjoining room and brought the receipt book from the Almirah kept in that room and issued the receipt Ex.MO/7. I also told the complainant that I shall refund the amount of Rs.5/- after getting the same arranged because it was not readily available with me. I then made a report on the application for reconnection. The application was kept on the table by me for handing over the same to the SDO, because peon was not available and myself went to the other room to keep back the receipt book in the Almirah under lock and key. In my absence the complainant planted the tainted currency notes under the application kept on the table.
On my return after keeping back the receipt book in the Almirah lying kept in the adjoining room. I lifted the application for handing over the same to the SDO. My hands might have touched the tainted currency notes while picking up the application from the table. In the meantime the police party came in, captured me, wrested the application from my hands and lifted the currency notes from the table. Thereafter the Deputy Superintendent of Police asked me about the currency Crl.Appeal No.165-SB of 2002 7 notes of Rs.2645/- I took out the same from the left pocket of my pants and handed over the notes to him. The DSP then took me to the vigilance office, Fatehgarh Sahib and falsely implicated me in this case. I neither demanded nor accepted any bribe money from the complainant. No recovery of the tainted currency notes was made from me. I have put in about 28 years unblemished service and am near the verge of retirement. There has never been any complaint against my work conduct and honesty."
Opportunity was given to lead defence evidence but no defence was led.
I have heard learned counsel for the appellant, learned State counsel and have gone through the evidence on the file.
Learned counsel for the appellant argued that Gurbhajan Singh was not the consumer of PSEB. Electric connection was in the name of Gurbachan Singh. On 9.2.1995, electric meter was checked and after checking, electric connection was disconnected. On 13.2.1995, Gurbhajan Singh had met the SDO. An application was moved and that application was marked to the appellant. Amount was calculated because complainant was found stealing energy. Rs.2645/- was to be deposited by way of penalty. Amount was calculated on the basis of inspection report prepared by the JE. Complainant was pressurising the appellant to reduce the amount. The appellant showed his inability to reduce the amount because amount was calculated on the basis of inspection report by the JE, counter signed by the SDO. Complainant was the Sarpanch of the village. When the appellant did not oblige the complainant, then he felt offended. Complainant was also Crl.Appeal No.165-SB of 2002 8 requesting the appellant for installation of a new connection in his name because brother of the complainant, in whose name the connection was, was residing in the fields. Appellant replied to the complainant that release of new connection was not within his competence because many legal formalities were required to be completed before release of new connection. Complainant felt offended and had left the office by saying that money was not with him. At 3.30 PM, complainant came and had deposited Rs.2650/-. Receipt was demanded. Appellant had gone to the adjoining room and brought receipt book from the almirah kept in that room and issued receipt. Report was made on the application for the release of connection. Application was kept on the table to hand over the same to the SDO. When peon was not available, then appellant had gone to the second room to keep back the receipt book in the almirah under lock and key. In the absence of appellant, tainted currency notes were kept under the application. After return from the second room, appellant had produced the application before the SDO. In the meantime, police came and appellant was arrested in this case. Argued that Harbhajan Singh was joined as shadow witness but he did not support the prosecution story. Harbhajan Singh categorically stated that in his presence, appellant had not demanded illegal gratification. There was no payment by the complainant to the appellant. His statement was not recorded by the police. According to the story, Gurbhajan Singh was not the consumer. After the electric connection was disconnected on 9.2.1995, Gurbhajan Singh had gone to the office of the appellant but on that day, appellant had not met the complainant, but in his statement (Ex.PE), complainant stated that on 9.2.1995, appellant had met him and requested to visit the office on Monday. On Monday, i.e., 13.2.1995, when complainant Crl.Appeal No.165-SB of 2002 9 had met the appellant, then appellant directed him to deposit Rs.2645/- by way of penalty and Rs.200/- as illegal gratification for the release of connection. That means, before recording statement (Ex.PE), complainant had not deposited the payment with the appellant and after reporting the matter to the Vigilance Department, then as per planning, raid was conducted but Ex.MO8 is the application moved by the complainant showing this fact that Rs.2645/- was deposited and after deposit of Rs.2645/-, receipt (Ex.MO7) was issued by the appellant. After deposit of Rs.2645/- and obtaining receipt, there was no idea to accept illegal gratification of Rs.200/-. While appearing in Court, Gurbhajan Singh in examination-in-chief supported the prosecution story but in cross- examination admitted that connection was disconnected on 9.2.1995 at about 8.00/9.00 PM and on that day, no complaint was lodged to any authority. On 9.2.1995, he had not met the appellant but on 13.2.1995, he had met the SDO. In the last lines of his cross-examination, complainant stated that he was short of Rs.300-400/-. Rs.2400--Rs.2500/- was handed over to the appellant with a request to pay the remaining amount in the evening. In the evening, he had paid the remaining amount and Rs.200/- demanded as illegal gratification. That means, before lodging report, Rs.2400-- Rs.2500/- was handed over to the appellant but no receipt regarding deposit of Rs.2400-- Rs.2500/-. There is only one receipt (Ex.MO7) regarding deposit of Rs.2645/-. No case of the complainant that after report to the DSP, Vigilance Bureau, he had deposited Rs.2645/-. If before lodging the report, Rs.2400-- Rs.2500/- was handed over to the appellant, then this fact should have been mentioned in the statement (Ex.PE). According to prosecution story, point `A' is the place where Crl.Appeal No.165-SB of 2002 10 appellant was present in his room when he demanded illegal gratification, point `B' is the place in front of table of the appellant where complainant was sitting and on demand had paid illegal gratification to the appellant and point `C' is the place in the same room of the appellant where Harbhajan Singh, shadow witness, was sitting on the chair, in whose presence appellant had demanded and accepted illegal gratification, but the appellant was arrested while present in the office of SDO. According to DSP, SDO was requested to sign the paper but he did not sign and had left the office. No document was in the hand of the DSP. Shadow witness gave agreed signal to the raiding party while present in the room of the SDO, but shadow witness did not support the prosecution story. ADO Gurdev Singh was joined as independent witness but he was not examined for the reasons best known to the prosecution. Before lodging the report to the police, complainant had not deposited the payment with the department. After reporting the matter to the police, i.e., statement (Ex.PE), no case of the complainant that he had deposited the payment with the appellant or the Cashier but complainant while appearing in Court, then admitted that he had moved application (Ex.MO8) to the SDO. Then payment was deposited. Ex.MO7 is the receipt. So, story regarding half payment before the statement (Ex.PE) and remaining payment with illegal gratification after statement (Ex.PE) shows that story is not genuine one. In fact, on 13.2.1995, application was given to the SDO and in view of application, as per checking report, amount was calculated by the appellant and this fact is clear from the report on the application. As per report, payment was deposited but complainant was pressurising the appellant to reduce the payment. Payment was not reduced. Secondly, complainant was requesting Crl.Appeal No.165-SB of 2002 11 the appellant to release fresh connection in the name of complainant but it was not in the power of the appellant. Complainant was the Sarpanch and felt offended. Wife of the shadow witness was the Panch. When appellant did not oblige the complainant serving as Sarpanch, then he felt offended. Appellant was falsely implicated in this case, that is why, shadow witness did not support the prosecution story and official witness was not examined.
Learned defence counsel for the appellant cited the following authorities:-
(1) 2002(2) RCR (Crl.) 352, Mani Ram vs. State of Haryana, (2) 1990(3) RCR (Crl.) 44, Mohinder Singh vs. State of Punjab, (3) 1987(1) RCR (Crl.) 672, Gurnam Singh vs. State of Punjab, (4) 1991(2) RCR (Crl.) 547, Ram Jaspal Kanungo vs. State of Punjab, (5) 1991(3) RCR (Crl.) 369, Balbir Chand vs. State of Punjab, (6) 1987(2) RCR (Crl.) 30, Ram Kishore vs. State, (7) 1993(3) RCR (Crl.) 450, Gurcharan Singh vs. State of Haryana, (8) 1998(2) RCR (Crl.) 295, Dharam Pal vs. State of Haryana, and (9) 2005(4) RCR (Crl.) 310, Amrik Singh vs. State of Punjab.
Leaned State counsel argued that before the present occurrence, complainant was not inimical towards the appellant. So without enmity, there was no idea to implicate the appellant. In fact, electric connection was disconnected and for the release of connection, payment was deposited but to make report, appellant was demanding illegal gratification. There was a demand and payment of illegal gratification. Illegal gratification was Crl.Appeal No.165-SB of 2002 12 recovered from the appellant. Minor discrepancies in the statements of PWs. Evidence on the file was rightly scrutinized by the trial Court.
Case of the prosecution was that electric connection was in the name of Gurbachan Singh, brother of the complainant, and there was a checking on 9.2.1995. On 9.2.1995, electric connection was disconnected and on that day, complainant had gone to the office of appellant and had met the appellant. Reply of the appellant was that file was not received from the concerned official. Request was to visit the office on Monday and on Monday, i.e., 13.2.1995, when complainant had met the appellant, then appellant had demanded Rs.200/- as illegal gratification for the release of electric connection, besides deposit of Rs.2645/- as penalty. Payment was not with the complainant. After making false promise to arrange payment, complainant came back and then reported the matter to the DSP, Vigilance. After that, there was a raid and the appellant was apprehended after demand and acceptance of illegal gratification, whereas defence version of the appellant was that on 13.2.1995, complainant gave applicaiton to the SDO and the application was marked to the appellant. As per checking report by JE, amount was calculated. Complainant was directed to deposit Rs.2645/- as penalty but complainant was requesting the appellant to reduce the payment. Appellant was also requested to release fresh connection in his name. When appellant did not oblige the complainant, then false case was got registered. Now the question is whether the story put forward by the prosecution is reasonable one or the defence version is reasonable one.
Harbhajan Singh was joined as a shadow witness with a direction to accompany the complainant and hear the conversation amongst the complainant and accused regarding demand and acceptance of illegal Crl.Appeal No.165-SB of 2002 13 gratification and after acceptance of illegal gratification to give agreed signal to the raiding party. ADO Gurdev Singh was joined as official witness. Harbhajan Singh appeared as PW6 but did not support the prosecution story. He stated that he along with complainant had gone to the office of DSP, Vigilance. Then they had gone to Bassi, office of Electricity Board. Police party had gone inside the office of the accused. He remained present outside the office. In his presence, appellant did not demand illegal gratification from the complainant nor complainant had paid illegal gratification to the appellant in his presence. His statement was not recorded under Section 161 Cr.P.C. Harbhajan Singh admitted his signatures on different documents, but stated that documents were not read over to him. He has studied upto 3rd class. He had signed the documents at the instance of Gurbhajan Singh, Sarpanch of his village. Statement of Harbhajan Singh is not helpful to the prosecution because in his presence, there was no demand of illegal gratification. Secondly, there was no payment of illegal gratification by the complainant to the appellant. Statement of Harbhajan Singh was not recorded under Section 161 Cr.P.C. He was declared hostile and was cross-examined by the prosecution but nothing came out which could help the prosecution. Suggestion was given to the witness that he made statement (Ex.PO) before the Investigating Officer but witness replied that he did not make any such statement.
Sukhwinder Singh, DSP, appeared as PW7 but no question was put to him as to whether he had recorded statement of Harbhajan Singh (Ex.PO) or not. Whether statement (Ex.PO) was recorded without any omission or addition. That means, prosecution is not clear as to whether statement of Harbhajan Singh (Ex.PO) was recorded or not and in case Crl.Appeal No.165-SB of 2002 14 recorded, then Investigating Officer while appearing in Court should have specifically stated that without any omission or addition, statement (Ex.PO) of Harbhajan Singh was recorded. Harbhajan Singh is from the village of the complainant. Wife of the complainant was the Panch, whereas complainant was the Sarpanch. Harbhajan Singh had no relation with the appellant. So, there was no idea to resile from his statement as won over by the appellant.
In Mani Ram's case (supra), corruption case was registered against the accused when he had demanded Rs.400/- as illegal gratification from the complainant but accused was acquitted on the ground that shadow witness and recovery witness did not support the prosecution story. Secondly, no evidence of initial demand of bribe by the accused. Evidence should inspire confidence and should be unimpeachable. When prosecution version did not show unimpeachability, then accused was acquitted.
In Mohinder Singh's case (supra), again case was under the Corruption Act. Recovery of bribe money from the accused but there was no independent corroboration of deposition of the accomplice and shadow witness. But in the present case, independent witness was not examined by the prosecution. Shadow witness while appearing in Court, then did not support the prosecution case.
In Gurnam Singh's case (supra), case was under the Corruption Act, then held that bribe giver and the shadow witness are accomplice- Independent corroboration of their evidence should be sought for as a matter of prudence if not as a matter of law- Conviction based on evidence of said witnesses- Conviction set aside.
In Ram Jaspal, Kanungo's case (supra), there was a raid by the Crl.Appeal No.165-SB of 2002 15 police and recovery of bribe money- Held that giver of bribe is normally be treated as accomplice- Independent evidence required to convict the accused. When no evidence of demand of illegal gratification and recovery not supported by shadow witness, then accused was acquitted.
In Balbir Chand's case (supra), case was under the Corruption Act. Raid was conducted. There was recovery of bribe money, then held that statement of complainant regarding demand of illegal gratification by accused should be corroborated by independent witness. Testimony of complainant alone is not sufficient for conviction.
In Ram Kishore' case (supra), case was under the Corruption Act- Recovery of tainted currency notes from person of accused- Mere recovery is not reliable- Demand and acceptance of illegal gratification are important ingredients.
In Gurcharan Singh's case (supra), case was under the Corruption Act- Recovery of tainted currency notes by police as a result of trap but demand and acceptance of bribe by the accused not proved by prosecution by producing independent witness. To prove the allegation of demand and acceptance of bribe by accused, evidence of complainant or trap witness cannot be safely acted upon in absence of some independent corroborative evidence because bribe giver is normally treated as no better than an accomplice-Evidence of complainant requires corroboration from independent witness.
In Dharampal's case (supra), held that bribe giver is normally to be treated as accomplice and before recording conviction of accused, independent corroboration to the testimony of all the accomplices, i.e., complainant and shadow witnesses is required. Statement of trap witness Crl.Appeal No.165-SB of 2002 16 that no demand of illegal gratification was made in his presence by the accused- Prosecution story was held doubtful.
In Amrik Singh's case (supra), held that trap witnesses are interested witnesses concerned with the success of the trap and qualitatively their testimony is inferior to that of an ordinary interested witness- Recovery of tainted currency notes is not sufficient to convict the accused when substantive evidence in the case is not reliable.
In Anand Parkash's case (supra), held that recovery of tainted money from almirah of accused- Positive result of phenolphthalein test is not enough to establish the guilt of the appellants when no proof of demand and acceptance of illegal gratification.
In the present case, Harbhajan Singh was joined as shadow witness but he did not support the prosecution story. ADO Gurdev Singh was joined as official witness but he was not examined for the best reasons known to the prosecution. Now there is only the statement of complainant because DSP is the Investigating Officer.
Ex.PE is the statement of complainant. Now as per statement (Ex.PE), there was a checking on 9.2.1995. Electric connection was disconnected and on the same day, he had gone to the office of PSEB and met the appellant. Appellant replied that file was not received. Request was to visit the office again on Monday, i.e., 13.2.1995. On Monday, again complainant had gone to the office of the appellant. Then appellant had directed him to deposit Rs.2645/- as penalty and for release of connection, demanded Rs.200/- as illegal gratification. After making false promise to bring payment, complainant came back from the office of PSEB with a request that he will visit the office in the evening. After that, complainant Crl.Appeal No.165-SB of 2002 17 had disclosed about the demand of illegal gratification to Harbhajan Singh. After that, complainant and Harbhajan Singh had gone to the office of DSP, Vigilance. Then statement (Ex.PE) of complainant was recorded and after that, raid was conducted by joining ADO Gurdev Singh as independent witness.
In statement (Ex.PE), there is not a word that before lodging the report, he had deposited Rs.2400/-- Rs.2500/- or had moved an application to the SDO and that application was marked to the appellant to report, i.e., to calculate the penalty and after calculation, Rs.2645/- or less than Rs.2645/- was deposited vide receipt (Ex.MO7). As per Ex.PE, on 9.2.1995, appellant had met the complainant and directed him to visit the office on Monday.
Complainant appeared as PW5, then supported the prosecution story, but in cross-examination stated that on 9.2.1995, he had gone to the office of PSEB, but had not met the appellant. That means, for the first time on 13.2.1995, complainant had met the appellant and on that date, complainant had also met the SDO. Application was moved and that application was marked to the appellant for calculation of penalty. Ex.MO8 shows that there was a report of the appellant to deposit Rs.2645/-. Complainant in cross-examination admitted that on 13.2.1995, he had met the SDO and the SDO had directed him to contact the concerned official in the office. Application was moved and the same was marked to the appellant. On the basis of inspection report, penalty was calculated. Then stated that he was short of Rs.300/-- Rs.400/-. Rs.2400/- - Rs.2500/- was paid to the appellant with a promise to return in the evening with remaining amount and Rs.200/- as illegal gratification. At the time of moving the Crl.Appeal No.165-SB of 2002 18 application (Ex.MO8), no complaint against the appellant that he was demanding Rs.200/- as illegal gratification. In the evening, he had brought the short amount and with that amount, Rs.200/- as illegal gratification was paid to the appellant. Complainant admitted that on 13.2.1995, he had requested the appellant to release new connection in his name and reply of the appellant was that this request was to be considered later on. Firstly, he should settle the dispute. At 10.00-11.00 AM, complainant had gone to the office of the appellant. That means, after visiting the office of the appellant, complainant had moved application (Ex.MO8) to the SDO and that application was marked to the appellant to calculate the penalty. Penalty was calculated by the appellant and as per report, complainant was to deposit Rs.2645/- by way of penalty. But Rs.2645/- was not with the complainant. Complainant had only Rs.2400/- - Rs.2500/- and this amount was paid to the appellant with a request to bring remaining amount plus Rs.200/- demanded as illegal gratification. After that, complainant had met DSP, Vigilance. Then his statement (Ex.PE) was recorded and after recording statement (Ex.PE), raid was conducted by the party and there was recovery of tainted money from the appellant, but statement of the complainant in Court is contrary to his statement (Ex.PE). In case, appellant was demanding Rs.200/- as illegal gratification for the release of new connection and deposit of penalty calculated as per report of JE, then complainant should have contacted the SDO with complaint that appellant was demanding Rs.200/- as illegal gratification for the release of connection. SDO was very much present in the office but no report to the SDO that appellant was demanding Rs.200/- as illegal gratification for release of connection. After the amount was calculated to be deposited as Crl.Appeal No.165-SB of 2002 19 penalty, complainant had paid Rs.2400/-- Rs.2500/- to the appellant. Remaining amount was promised to be paid in the evening with Rs.200/-. That means, after payment of Rs.2400/-- Rs.2500/-, remaining payment plus Rs.200/- was paid to the appellant in the evening, whereas story is to the effect that after demand of illegal gratification, matter was reported to the DSP, Vigilance. Rs.200/- was handed over to DSP, Vigilance. Phenolphthalein powder was used on the currency notes and were handed over to the complainant with a direction to hand over the tainted currency notes to the accused only on demand. Memo (Ex.PF) was prepared regarding handing over the currency notes to the complainant after noting numbers of the notes. Demonstration was also given to the complainant and Harbhajan Singh as to how the colour of the currency notes is to change. Harbhajan Singh was joined as shadow witness and was directed to accompany the complainant and hear the conversation amongst the complainant and accused regarding demand and acceptance of illegal gratification and after acceptance of illegal gratification to give agreed signal to the raiding party. If Rs.2400/- -Rs.2500/- was paid to the appellant earlier after calculation in view of application (Ex.MO8) and remaining payment was to be made with Rs.200/- as illegal gratification in the evening, then this fact should have been mentioned in the statement (Ex.PE), but statement (Ex.PE) is silent regarding payment of Rs.2400/-
-Rs.2500/- in view of calculation as per inspection report, after the application was marked by the SDO to the appellant. In fact, complainant was requesting the appellant to release fresh connection in his name but the appellant had shown his inability to release fresh connection at that stage. According to defence version, complainant being Sarpanch of the village Crl.Appeal No.165-SB of 2002 20 was also pressurising the appellant to reduce the penalty but penalty was calculated as per inspection report by JE. According to the site plan, illegal gratification was demanded and paid to the appellant while present in his room and arrest of the appellant was from the room of SDO, whereas defence version of the appellant was that when he was present in his office, then as per calculation on the application (Ex.MO8), appellant had gone to another room to bring receipt book. After the receipt book was brought, then receipt (Ex.MO7) was issued. Application was kept on the table to hand over the same to the SDO. When peon was not available, then appellant had gone to the second room to keep back the receipt book in the almirah under lock and key. In the absence of appellant, tainted currency notes were kept under the application. After return from the second room, appellant had gone to the office of SDO with the application for further action and in the office of SDO, appellant was arrested by the police. DSP in cross-examination admitted that at 4.00 PM, shadow witness gave agreed signal to the raiding party and in the room of SDO, appellant was arrested. There was no other cash with the appellant when arrested. SDO was present and requested to sign the papers but he did not agree and had left the office. Party had not gone to the room of the appellant. Lastly admitted that no document was in his hand. All this shows that prosecution story seems to be not reasonable one. Defence version of the appellant seems to be probable because once electric connection was disconnected and there was a request for release of the same, then appellant had calculated the penalty as per inspection report by JE. Penalty was deposited as per receipt (Ex.MO7). No case of the complainant that receipt (Ex.MO7) was issued after short payment was deposited with the appellant in the evening because part Crl.Appeal No.165-SB of 2002 21 payment of Rs.2400/-- Rs.2500/- was given in the morning. As per statement (Ex.PE), there was no payment to the appellant except payment of Rs.200/- as illegal gratification. To support the version of the complainant, there is no independent evidence, i.e., shadow witness or independent witness. DSP was not in a position to tell as to who was the official, who had prepared all these documents on his dictation. Complainant and the Investigating Officer are very much interested in the success of this case. Their statements without any corroboration inspire no confidence. Mere recovery of tainted currency notes is not sufficient for conviction when no witness to prove demand of bribe except the complainant.
Impugned judgment is to be set aside when the same suffers from illegality and infirmity. All discussed above shows that evidence on the file was not properly scrutinized by the trial Court. Impugned judgment is ordered to be set aside. Appellant is acquitted of the charge levelled against him.
Appeal is accordingly allowed.
9.9.2010 ( JORA SINGH ) pk JUDGE