Punjab-Haryana High Court
Dharam Pal Sharda vs State Of Punjab on 8 April, 2010
Author: Mohinder Pal
Bench: Mohinder Pal
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Criminal Appeal No.299-SB of 2001.
IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA
AT CHANDIGARH
...
Criminal Appeal No.299-SB of 2001.
Date of Decision: April 08, 2010.
Dharam Pal Sharda ...Appellant
VERSUS
State of Punjab ...Respondent
1. Whether the Reporters of Local Newspapers 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 ?
QUORUM : HON'BLE MR. JUSTICE MOHINDER PAL.
Present: Mr. P.S. Ahluwalia, Advocate,
for the appellant.
Mr. Vishal Munjal, Additional Advocate General, Punjab.
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MOHINDER PAL, J.
In this appeal, appellant Dharam Pal Sharda has impugned the judgment of conviction and the sentence order dated 5.3.2001 passed by the Special Judge, Hoshiarpur, whereby he was convicted under Section 13 (2) read with Section 7 of the Prevention of Corruption Act, 1988 (for short -2- Criminal Appeal No.299-SB of 2001.
`the Act') and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.5,000/- in default whereof to undergo further rigorous imprisonment for three months.
The appellant was posted as Audit Officer at Hoshiarpur. Complainant Janjit Singh was working as Secretary of Pawan Co-operative Service Society Limited, Pawan (for short `the Service Society'). Villages Pawan Shahpur, Chanauta and Rawan Villages were within the jurisdiction of the Service Society. Complainant Janjit Singh was working in the said Society as a Salesman and Tarlochan Singh was its Secretary.
Complainant Janjit Singh received Rs. 23,720/- from Kuldip Singh son of Sohan Singh who was having loan acount no. 86. Out of this, Rs.22,000/- was the principal amount and Rs. 1720/- towards interest. He deposited it with Tarlochan Singh Secretary who further deposited this amount in the Central Co-operative Bank, Branch Pawan, in the account of said Kuldip Singh but Tarlochan Singh did not make entry in the account book and embezzled Rs. 23,720/-. Rajinder Singh Inspector Grade-II conducted the audit and prepared special report against Secretary Tarlochan Singh and sent the same to the Audit Officer, Dasuya. Ajit Singh Auditor Grade-I, Dasuya, conducted the verification and he found Tarlochan Singh guilty for the said embezzlement. Then the verification of the audit was marked to the appellant who was Audit Officer, Hoshiarpur. He conducted the verification on 14/15.3.1995 in the Service Society. Complainant Janjit Singh produced the record before him. Rajinder Singh Auditor Grade-II -3- Criminal Appeal No.299-SB of 2001.
also produced the relevant record. During verification, accused imposed fifty percent amount out of the said amount on the complainant Janjit Singh and remaining fifty percent on Rajinder Singh. Complainant Janjit Singh told the accused that he was not guilty for the said embezzlement as he had given the said amount to Tarlochan Singh. The appellant demanded Rs.2000/- as bribe from the complainant for exonerating him from the said liability. The amount was settled at Rs.1000/-. The appellant told complainant Janjit Singh to write an application for exonerating him (complainant) from the said liability. The complainant made such application which was received in the office vide no. 935 dated 21.3.1995. The said application is Exhibit P.L. The appellant had asked the complainant to come on 24.3.1995 in his office for the purpose of exonerating him from the said liability and the complainant was asked to bring Rs.1000/- on that date.
As the complainant did not want to pay illegal gratification, he approached the Deputy Superintendent of Police
Darshan Singh of the Vigilance Bureau, Hoshiarpur and narrated the whole facts to him. Deputy Superintendent of Police Darshan Singh recorded the statement (Ex P.M) of the complainant. On the basis of the said statement of the complainant, the instant case was registered.
A raid was accordingly organized to nab the
appellant. The members of the raiding party included complainant
Janjit Singh, Joginder Singh, who was to act as a shadow witness,
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Criminal Appeal No.299-SB of 2001.
Rajinder Singh Inspector Grade-II of the Department of the
appellant, Deputy Superintendent of Police Darshan Singh and other
police officials.
The complainant had produced Rs.1000/- consisting of
ten currency notes of the denomination of Rs.100/- each before
Deputy Superintendent of Police Darshan Singh. Their numbers were noted down. Phenolphthalein powder had been applied to these notes and the same were handed over to the complainant by instructing him to hand over these currency notes to the accused on his demand. Joginder Singh was to act as a shadow witness. Complainant Janjit Singh and Joginder Singh went to the office of the accused who was found present there. The appellant disclosed to the complainant that he had written in his favour and demanded Rs.1000/- from the complainant. The complainant handed over Rs.1000/- to the accused. The accused kept the money in the drawer of his table and issued letter (Exhibit P.M/1) to the complainant whereby he had been exonerated from the payment of the said amount. The letter was signed by the accused. After 15/20 minutes, Deputy Superintendent of Police Darshan Singh and other police officials came to the office of the accused. Deputy Superintendent of Police Darshan Singh disclosed his identity to the accused. The accused was apprehended. Numbers of the currency notes which the accused had placed in the drawer of his office table were got compared with the numbers of the currency notes the numbers of which had been noted earlier by the police and those -5- Criminal Appeal No.299-SB of 2001.
tallied with each other. The appellant was made to wash his hands in the water mixed with sodium carbonate and colour of the solution did not change. Thereafter, fingers of the accused were got washed in the same water and the colour turned to pink dirty. The wash pertaining to the appellant was sealed in the form of parcel and taken into possession by the police. The currency notes were also taken into possession.
After completion of investigation challan against the accused-appellant was presented in the Court.
Charge for the offence punishable under Section 13 (2) read with Section 7 of the Act was framed against the accused, to which he did not plead guilty and claimed a trial.
At the trial, the prosecution examined Constable Malkiat Singh (P.W.1), Inspector Khazan Singh of the Service Society (P.W.2), Joginder Singh Ahlmad in the office of the Additional Deputy Commissioner, Hoshiarpur (P.W.3), Gurdip Singh (P.W.4), complainant Janjit Singh (P.W.5), Constable Satnam Singh (P.W.6), Head Constable Tirath Ram (P.W.7), Gurdial Singh (P.W.8), Rajinder Singh Inspector Grade-II of the Audit Department (P.W.9) and Superintendent of Police Darshan Singh (P.W.10) In his statement recorded under Section 313 of the Code of Criminal Procedure, the accused-appellant denied the prosecution allegations and pleaded false implications. He further stated that he never demanded any bribe from the complainant nor accepted the same. He further stated that there was embezzlement of Rs. 23740/- -6-
Criminal Appeal No.299-SB of 2001.
in the Service Society and after due verification, he fixed the responsibility of aforesaid Tarlochan Singh and the complainant vide document (Exhibit D.A). This fact was admitted by Tarlochan Singh on 15.3.1995 vide document mark `A'. When the accused fixed the responsibility of the complainant, he came to the office of the accused along with Joginder Singh and tried to give him Rs. 1000/- for exonerating him from his liability to which the accused refused. When the accused went outside the office to urinate, the complainant put the money in the drawer of the table of the accused which was unlocked. When the accused came to his room after urinating, the police officials came there and inquired from him regarding the money. The accused- appellant showed his ignorance about the money. The complainant then told the Deputy Superintendent of Police that he (complainant) had put the money in the drawer as the same was not accepted by the accused. The Deputy Superintendent of Police then asked the accused to take out the money. The accused accordingly picked up the amount from the drawer and handed over the same to the Deputy Superintendent of Police. Rajinder Singh was not present there. The accused pleaded that Rajinder Singh had become witness against him as he was inimical towards him due to departmental rivalry.
The accused, in defence, examined Inspector Resham Singh (D.W.1) and Shyam Singh (D.W.2).
I have heard the learned counsel for the parties and have gone through the records of the case.
In this case, Joginder Singh, the shadow witness, who -7- Criminal Appeal No.299-SB of 2001.
appeared as P.W.3, did not state in his examination-in-chief that the accused-appellant had demanded money from the complainant i.e Rs.1,000/- as bribe for the work to be done regarding verification. Still further, complainant Janjit Singh (P.W.5) supported the case of the prosecution in his examination-in-chief, but in his cross-examination, he resiled from his statement. While dealing with this situation, the trial Court observed as under:-
" The case of the prosecution should not
be thrown away merely because witnesses
are playing fraud with the Court and are
resiling from their statements."
No doubt, a verdict of acquittal cannot follow the
moment the witnesses turn hostile and dispensation of justice is not dependant upon the witnesses who make efforts to hold the law to ransom, but once the prosecution case is itself not established on record by the other evidence, circumstantial and oral, led by the prosecution, non-supporting of its case by the material witnesses gains significance. In this case, as would be discussed hereinafter, the prosecution has not been able to prove its case against the accused beyond all reasonable doubts.
As noticed above, Joginder Singh, shadow witness
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Criminal Appeal No.299-SB of 2001.
(P.W.3) neither deposed regarding the demand nor acceptance of
any bribe money by the accused in his examination-in-chief.
Rather, he positively stated that the accused did not make
any demand of money. This witness was declared hostile at the
request of the Public Prosecutor and was allowed to be cross-
examined by the prosecution. However, this witness stuck to his
original stand.
Complainant Janjit Singh (P.W.5) had supported the
case of the prosecution in his examination-in-chief, but in his
cross-examination, he resiled from his statement. The trial
Court, under the circumstances, formed the opinion that the
examination-in-chief of the complainant could be segregated
from the cross-examination. The cross-examination of the
complainant could not, obviously, be treated as non-existent.
The fact that the recovery in this case was not made from
the personal search of the appellant and was made from the
unlocked drawer of the table, keeping in view the totality of
facts and circumstances of the case, is very significant.
Regarding Rajinder Singh (P.W.9), who was Inspector
Grade-II in the Department of the appellant, the trial Court, in
para 16 of the judgment, observed as under:-
" P.W.9 Rajinder Singh is inimical to the
accused and this fact has been proved on the
file beyond any doubt. The accused marked the
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Criminal Appeal No.299-SB of 2001.
absence of P.W.9 Rajinder Singh on
29.3.1998. He filed an appeal before the Chief Auditor but the appeal was dismissed and the leave was sanctioned to P.W Rajinder Singh by the Secretary of the Department. On the report made by the accused against Rajinder Singh on 20.3.1995, P.W Rajinder Singh was suspended.
P.W Rajinder Singh has also filed a writ petition no. 8877 dated 4.6.1995 against his suspension against the state of Punjab and the present accused. The photocopy of the writ petition Exhibit D.D along with Annexure Exhibhit P.1 to Exhibit P.9 have been proved by D.W.2 Sh. Shyam Singh, Senior Assistant posted in the Punjab and Haryana High Court.
Since P.W Rajinder Singh is inimical towards the accused and even if no reliance is placed on his statement the other evidence on the file is sufficient to base the conviction against the accused."
However, the issue was left mid-way by the trial Court.
Apparently, there was departmental rivalry between Rajinder
Singh (P.W.9) and the appellant. Since the two main witnesses
of the prosecution i.e complainant Janjit Singh (P.W.4) and the
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Criminal Appeal No.299-SB of 2001.
shadow witness Joginder Singh (P.W.3) had not supported the
case of the prosecution and Rajinder Singh (P.W.9), who had
been joined in the raiding party to attest the formalities of
taking bribe was inimically disposed towards the accused, as has
been observed by the trial Court, the case of the prosecution
becomes doubtful. Still further, as noticed above, recovery was
made from the unlocked drawer of the office table of the
accused. Under the circumstances, the defence taken by the
accused in his statement recorded under Section 313 of the Code of Criminal Procedure that when the accused had fixed the responsibility of the complainant, he came to the office of the accused along with Joginder Singh and tried to give him Rs. 1000/- for exonerating him from his liability to which the accused refused; that when the accused went outside the office to urinate, the complaint put the money in the drawer of the table of the accused which was unlocked; that when the accused came to his room after urinating, the police officials came there and inquired from him regarding the money; that the accused-appellant showed his ignorance about the money; that the complainant then told the Deputy Superintendent of Police that he (complainant) had put the money in the drawer as the same was not accepted by the accused; that the Deputy Superintendent of Police then asked the accused to take out the money; and that the accused accordingly picked up the amount from the drawer and handed over the same to the Deputy Superintendent of Police, gains importance. It was also pleaded by the accused -11- Criminal Appeal No.299-SB of 2001.
that Rajinder Singh was not present there and that Rajinder Singh had become witness against him as he was inimical towards him due to departmental rivalry. It is well-settled that each case has to be tested on the touchstone of judicial scrutiny. The instant case, when examined in the light of the evidence led by the prosecution on record, as discussed above, leads to the only conclusion that the demand and acceptance of bribe money by the accused is not proved on record beyond all shadows of reasonable doubts. Unless the Court is satisfied on the aspect of demand and acceptance of the bribe by the accused, it is difficult to hold that the accused accepted the illegal gratification so as to expose himself for punishment for an offence under Section 13 (2) read with Section 7 of the Act.
The facts and circumstances of the case, discussed above, make the case of the prosecution against the appellant doubtful. Consequently, this appeal is accepted, the impugned judgment of conviction and the sentence order are set aside and the appellant is acquitted of the charge framed against him by giving him the benefit of doubt.
April 08, 2010. ( MOHINDER PAL ) ak JUDGE