Criminal Appeal No.482 SB of 2003 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.482 SB of 2003 Date of decision 01 .8.2012. [ENTITY] Appellant. versus [ENTITY] Respondent. CORAM :- HON'BLE MR.JUSTICE [ENTITY]. Present :- Mr. [ENTITY], Advocate and Mr. [ENTITY], Advocate for Mr. [ENTITY], Advocate (Amicus Curiae) for the appellant. Mr. [ENTITY], DAG, Punjab. [ENTITY], J.
Appellant-[ENTITY] has directed the present appeal against the judgment and order dated 18.2.2003 passed by learned Special Judge, Moga vide which accused/appellant has been convicted under [SECTION] and [SECTION] of the [ACT] ( in short - the Act) and sentenced him to undergo rigorous imprisonment for a period of one year and to pay a fine of `.2000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months under [SECTION] of the Act and to undergo further rigorous imprisonment for a period of two years and to pay a fine of `.2,000/- and in default of payment of fine to further undergo rigorous imprisonment for a period of six months under [SECTION] of the Act. Both the sentences were, however, ordered to run concurrently.
2. The brief facts of the prosecution case are that on 15.5.1998 complainant [ENTITY] made a statement before [ENTITY], Deputy Superintendent of Police (in short - the DSP) Vigilance Bureau, Ferozepure alleging that in the year 1993 he had purchased a truck bearing registration No. DIB-6022 from one [ENTITY] on power of attorney whereas the documents of ownership continued in the name of said [ENTITY]. On 27.2.1998, said truck met with an accident. He lodged a written complaint in the office of Insurance Company situated in Bhagat Singh Market, Moga. The Manager of the said company appointed surveyor and after completing the file handed over to [ENTITY] accused, who was working as Development Officer. He met [ENTITY] accused twice or thrice but he had been putting off the matter on one pretext or the other. On 14.5.1998 he again met [ENTITY] accused, who told him that cheque of `.16,300/- had been prepared by the Insurance Company but the same would be handed over to him on payment of `.1500/- to him as illegal gratification. He told the accused that he had already suffered sufficient loss. However, on his repeated requests, the deal was struck at `.1000/- and [ENTITY] accused asked him to come on 15.5.1998 at 11.00 a.m. at Jindal Auto Spares Store situated on the back side of State Bank of India and he would deliver the cheque to him there. He did not want to give illegal gratification to [ENTITY] accused and on false promise, he came back to his village. On the phirni of the village, [ENTITY] resident of village Masitan met him to whom he narrated the story. He suggested him that the matter should be brought to the notice of Vigilance Bureau against such corrupt officials. Then he along with [ENTITY] PW met [ENTITY] DSP, Vigilance Bureau, who after recording his statement and after making endorsement sent the same to the police station for registration of the case, on the basis of which formal FIR was registered by Inspector [ENTITY].
3. It has been further alleged by the complainant that he also gave `.1000/- (ten currency notes of the denomination of `.100/-each) to DSP [ENTITY]. The said DSP noted the numbers of the currency notes and after applying phenolphthalein powder thereon, returned the same to the complainant. The said DSP directed the complainant to hand over the bribe amount to [ENTITY] accused on his demand and that [ENTITY] shadow witness should over hear their conversation. [ENTITY] PW was also directed to give signal to the police party when the amount of illegal gratification was handed over to the accused. The effect of Phenolphthalein powder was also demonstrated to the complainant and the shadow witness. For the purpose of laying the trap, Trap Laying Officer, joined [ENTITY] JE PWD B&R in the police party. The complainant and the shadow witness approached the accused at the stated place i.e. Jindal Auto Spares Store where the accused was sitting. The complainant handed over the amount to the accused, who put the same in the left front pocket of his shirt. Then on pre-determined signal, raid was was conducted. The DSP gave his introduction and asked the accused about the acceptance of the bribe. Thereafter, he got arranged a glass of clean water, in which sodium carbonate was added. [ENTITY] recovery witness, was asked to dip both his hands in the solution. On his doing so, the colour of the solution did not change. Accused [ENTITY] was then asked to wash his hands in that solution one by one. After the accused did so, the solution changed into light pink colour. It was put in a clean quarter bottle and was sealed with the seal mark 'BSG'. It was taken into possession vide memo attested by the complainant shadow witness and the recovery witness. Bribe amount of Rs.1000/- i.e. ten currency notes of the denomination of Rs.100/- each were recovered from the left pocket of shirt of the accused. The Investigating Officer also prepared rough site plan of the place of occurrence. On return to the police station, the case property was deposited with the MHC. After completion of the investigation of the case and obtaining requisite sanction from the Competent Authority, challan against the accused was presented in the Court for trial.
4. On appearance of the accused, copies of documents were supplied to the accused. The trial Court framed charge under [SECTION] and [SECTION] of the Act against the accused. He pleaded not guilty to the charge and claimed trial.
5. In order to prove its case, prosecution examined Constable [ENTITY] (PW-1), [ENTITY] complainant (PW-2), [ENTITY] (PW-3), [ENTITY] (PW-4), [ENTITY] (PW-5), [ENTITY], Assistant Manager United Insurance Company, Ludhiana PW-6, [ENTITY] (PW-7), Constable [ENTITY] (PW-8), [ENTITY] Branch Manager PW-9 and DSP [ENTITY] PW-10.
6. The accused was examined under [SECTION] [ACT] and he denied all the incriminating material and has stated that he is innocent and has been falsely implicated in this case. The cheque in question had already been issued on 13.5.1998 from the office of the United Insurance Company Limited. The accused did not opt to lead defence evidence.
7. The trial Court, after hearing the learned counsel for the parties, convicted and sentenced the accused vide judgment and order dated 18.2.2003, as aforesaid.
8. Feeling dissatisfied with the aforesaid judgment, appellant
-accused has preferred the present appeal.
9. I have heard learned counsel for the parties and have gone through the records of the case.
10. Learned counsel for the accused/appellant has submitted that in order to prove the offence under [SECTION] and [SECTION] the Act, the prosecution is required to prove the following ingredients :-
(1) Demand of illegal gratification ; (2) Acceptance of illegal gratification ; (3) Recovery of tainted amount from the possession of the accused.
11. Learned counsel for the appellant has submitted that all the ingredients of offence mentioned above, are not made out from the evidence available on the file regarding demand and acceptance of illegal gratification. The complainant and the shadow witnesses are the material witnesses. It is submitted that both of them have not supported the prosecution case regarding demand and acceptance of illegal gratification.
12. It is further submitted that the prosecution witnesses are discrepant regarding material points. The prosecution has failed to explain those contradictions which rendered the prosecution story doubtful.
13. I have considered the said submission but do not find any force in that submission.
14. PW-2 [ENTITY] complainant in his examination-in- chief has specifically stated that accused [ENTITY] demanded `.1500/- for giving him a cheque of `.16,300/- in respect of claim to damage to the truck No. DIB-6022. He has further stated that after negotiations the accused scaled down the payment to `.1000/-. PW-7 [ENTITY] in the examination-in-chief has stated that [ENTITY] told him that [ENTITY] was demanding illegal gratification for handing over the cheque. PW-7 [ENTITY] has further stated that he along with [ENTITY] went to the accused and money was given by [ENTITY] to accused- [ENTITY]. This witness was declared hostile as he has tried to favour the accused and he was duly confronted with the previous statement. The accused has failed to explain the hand-wash and pocket wash. DSP [ENTITY], investigating officer of this case and the official witness [ENTITY], J.E. would be the last person to implicate the accused/appellant falsely. So, it cannot be said that demand and acceptance of illegal gratification has not been proved. Minor discrepancies are bound to occur in the statements of truthful witnesses. No material discrepancy or contradiction has been pointed out during the course of arguments.
15. Learned counsel for the appellant has further submitted that the prosecution has to prove that the accused was competent to prepare and sanction the cheque in question. As per the prosecution witnesses itself, the claim in respect of accident was to be sanctioned by the Branch Manager and has to be disbursed by the concerned Assistant of the Insurance Company. The appellant is neither the Branch Manager nor the concerned Assistant of the Insurance Company and as such the prosecution story is doubtful.
16. It is further submitted that there are no motive for demanding the bribe. According to the prosecution version, the amount was to be paid in respect of the claim of a truck insured with the Insurance Company of the accused/appellant. The said cheque was prepared on 13.5.1998 i.e. prior to the raid and the same was handed over to the lawful owner of the vehicle.
17. It is further contended that complainant has no concern with cheque in question and as such there was no question of demanding the illegal gratification. It is admitted case of the parties that one [ENTITY] was the owner of the vehicle, regarding whom the claim was sanctioned by the Insurance Company. The amount was to be paid to said [ENTITY]. The allegation that father of the complainant purchased the vehicle from said [ENTITY] is not substantiated on the file. So, it is contended that the very basis of present case crumbled down and is unable to bear its own weight.
18. I have considered the said submissions but do not find any force in that submission.
19. The case of the prosecution itself is that cheque was ready but the accused/appellant was not handing over the same to the complainant for want of illegal gratification. [ENTITY], the original owner has appeared in the witness box and has stated that he has given power of attorney in favour of father of complainant. So, mere fact that cheque was in the name of [ENTITY] does not create any dent in the prosecution story. Since [ENTITY] was the owner and as such cheque was to be issued in his name only. The complainant was entitled to use the truck on the basis of power of attorney by [ENTITY] which has been placed on the file.
20. It is further submitted that according to PW-7 [ENTITY], cheque was recovered from [ENTITY] complainant. So, the story of the prosecution that amount of bribe was paid in lieu of cheque is not proved.
21. I have considered the said submission but do not find any force in that submission.
22. [ENTITY] PW-7 had been declared hostile witness and as such his statement cannot be given much importance wherein he has stated that cheque was recovered from [ENTITY]. That statement was made by him simply to help the accused.
23. It is further contended that according to the investigating officer, the writing work was done by the two officials but both these officials have not been examined, which creates a doubt in the prosecution story.
24. I have considered the said submission but do not find any force in that submission.
25. The officials, who have recorded the statements of the witnesses at the dictation of investigating officer, cannot be said to be material witnesses. Non-examination of those witnesses would not fatal for the prosecution case.
26. Learned counsel for the appellant has further submitted that the motive for false implication of the accused-appellant at the hands of complainant, was to get the reward money of `.25,000/- and the complainant has admitted in his statement that he received `.25,000/- as reward money. So, on that account, the present case has been got registered against the accused/appellant.
27. I have considered the said submission but do not find any force in that submission.
28. It cannot be said that for receiving reward of `.25,000/-, the accused has been falsely implicated. A Gazetted Officer i.e. [ENTITY] DSP and PW-4 [ENTITY] JE would be the last person to falsely implicate the appellant in such a serious offence. They have no enmity with the accused/appellant. They have fully supported the case of the prosecution regarding hand-wash, pocket wash and recovery of tainted amount. The appellant has not put any question to the claimant whether he was in the knowledge prior to the raid that `.25,000/- are being paid as a reward money for getting the Government servant apprehended. The reward amount might have been paid much later on. So, it cannot be said that merely on account of `.25,000/- the reward amount, false case has been registered. [ENTITY] complainant and PW-7 [ENTITY] have also no enmity against the appellant to falsely implicate him in the present case.
29. The material witnesses except [ENTITY] have supported the case of the prosecution and the pocket wash further strengthened the case of the prosecution. Absence of any enmity goes a long way to prove that appellant cannot be falsely implicated.
30. Learned counsel for the appellant has relied upon the following authorities in support of his arguments :-
(1 Sukhwinder Singh @ Sukhwinder Kumar vs [ENTITY] 2011 (1)RCR (Criminal ) 54 ;
(2) [PRECEDENT] ;
(3) [ENTITY] vs. State of U.P. and another 2011 (4) RCR ( Criminal ) 208 (4) [ENTITY] vs. State of M.P. 2012 (1) R.C.R. (Criminal) 804 (5) [PRECEDENT] vs. [ENTITY] 2012 (2) R.C.R. (Criminal) 278 ;
(6) [ENTITY] & Ors vs. State of U.T. Chandigarh 2009 (3) R.C.R.(Criminal ) 649 ;
(7) [PRECEDENT] ;
(8) [PRECEDENT] ;
(9) [PRECEDENT][PRECEDENT] ;
(10) [PRECEDENT] vs. State of Haryana 2000(1) R.C.R. (Criminal) 487 ;
(11) [PRECEDENT] ;
(12) [PRECEDENT] ;
(13) [PRECEDENT] vs. [ENTITY] 2002(2) RCR (Criminal ) 781 ;
(14) [PRECEDENT] vs. [ENTITY] 1988(1) R.C.R. (Criminal) 123 ;
(15) [ENTITY] son of [PRECEDENT] vs. State of Maharashtra 1999 Crl. L.J. 4407, (16) [PRECEDENT] 1710.
31. Authority [PRECEDENT]'s case (supra) is distinguishable as in that case official witnesses have not supported the case of the prosecution and currency notes were not handed over to the accused.
32. Authority [PRECEDENT]'s case (supra) is also distinguishable as in that case demand of illegal gratification was not proved.
33. Authorities [ENTITY]'s case ( Supra), [ENTITY]'s of Madhya Pradesh High Court and [PRECEDENT]'s case (supra) are distinguishable as in these cases also the demand of bribe by the accused was not proved.
34. Authority [ENTITY] & Others' case (supra) is remotely connected to the facts of the present case. The said case relates to [ACT], in which recovery of contraband was from three accused and show cause notice was served upon them seeking option whether they would like to search before Gazetted Officer or Magistrate.
35. Authorities [PRECEDENT]'s case (supra), [PRECEDENT]'s case (supra) and [PRECEDENT][PRECEDENT]'s case (supra) relate to non-examination or withholding the vital witnesses. The counsel for the appellant could not point out which material witness has been withheld by the prosecution in the present case. The officials, who recorded the statements of the witnesses cannot be said to be material witnesses as they have recorded the statement on the dictation of Deputy Superintendent of Police.
36. Authority [PRECEDENT]'s case (supra) is distinguishable as in that case independent witness was not examined and initial demand of illegal gratification from the complainant was not proved.
37. Authority [PRECEDENT]'s case (supra) is distinguishable as in that case there was dispute regarding identity of the accused.
38. In authorities [PRECEDENT]'s case (supra), [PRECEDENT]'s case (supra), and [PRECEDENT]'s case (supra), lay down the law that independent corroboration would be there. In the present case, PW-7 [ENTITY] has supported the prosecution case on some particulars while he resiled from the prosecution version on other points. So, the above-said authorities are also distinguishable.
39. Authority [ENTITY] son of [PRECEDENT]'s case (supra), is also distinguishable as in that case there was dispute regarding identity of the accused.
40. Authority [PRECEDENT]'s case (supra) is also distinguishable as in that case there was material discrepancies in the statements of the prosecution witnesses and the shadow witness was not proved to be independent witness.
41. So, I have no hesitation in holding that the appellant has failed to create dent in the prosecution version.
42. Learned counsel for the appellant has submitted that punishment is harsh. The accused is facing trial since 1998.
43. I have considered the said submission.
44. The FIR is of the year 1998 and since then the appellant has been facing trial. However, at the same time, the Court has to keep in mind that corruption is eating the roots of society. So, in these circumstances, the sentence of appellant under [SECTION] of the Act stands reduced to one year instead of two years awarded by the trial Court. The sentence of fine under [SECTION] of the Act and sentence of fine and imprisonment under [SECTION] of the Act awarded by the trial Court stands affirmed. However, both the sentences under [SECTION] of the Act and under [SECTION] of the Act are ordered to run concurrently. The period of detention already undergone by the appellant is ordered to be set off as ordered by the trial Court.
45. A copy of this judgment be sent to the trial Court for strict compliance.
August Ist , 2012 ([ENTITY]) sv JUDGE