Criminal Appeal No.627-SB of 1998 -1- *** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.627-SB of 1998 Date of decision : 12.9.2008 ***** Ravinder Kumar .....Appellant Versus State of Haryana ...Respondent **** CORAM : HON'BLE MR. JUSTICE S. D. ANAND Present: Dr. Surya Parkash, Advocate for the appellant. Ms.S.S.Mor, Senior Deputy Advocate General,Haryana. ***** S. D. ANAND, J. The appellant was convicted by the then learned Special Judge, Jind for the offences under Sections 7 and 13(2) of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”) and sentenced as under:- “Under Section 7 of the Prevention of Corruption Act, 1988 To undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.2000/-. In default of payment of fine to further undergo R.I. For a period of six months. “Under Section 13(2) of the Prevention of Corruption Act, 1988 To undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.3000/-. In default of payment of fine to further undergo R.I. For a period of six months.” Criminal Appeal No.627-SB of 1998 -2- *** The substantive sentences were ordered to run concurrently. The prosecution allegations, upheld at the trial, were as under:- The appellant was posted as Assistant Manager at the Safidon Branch of the State Bank of Patiala. In that capacity, he was the recommending authority for sanction of (financial) limit. PW-8 Satish Kumar who was running a glass house at Safidon under the name and style of M/s Vishal Glass House, Safidon, applied for the sanction of 'limit' for furthering his business. In that context, Satish Kumar met the appellant in the bank premises on 22.4.1995. The appellant obtained the signatures of Satish Kumar on a blank cheque, photocopy whereof is Ex. PE, on a representation that some formalities were required to be completed in the context of pending request of Satish Kumar PW for sanction of 'limit'. On the basis of the original of Ex. PE, the appellant withdrew a sum of Rs.10,000/- from the loan account and directed Satish Kumar to meet him again on 24.4.1995. When Satish Kumar went over to the appellant, on that date, the latter demanded a illegal gratification of Rs.4000/- for the grant and also disbursement of the loan amount aforementioned. The appellant further informed Satish Kumar PW-8 that he had withdrawn a sum of Rs.10,000/- on 22.4.1995 on the basis of the original of Ex. PE and that the amount afore-mentioned was to be adjusted towards the amount permissible to be realised under the 'limit'. When Satish Kumar told the appellant that he was not inclined Criminal Appeal No.627-SB of 1998 -3- *** to pay the amount of illegal gratification, the appellant did not allow him to withdraw the amount from his loan account. Satish Kumar felt frustrated, went to DSP, Safidon and filed an application (Ex. PF) against the appellant. Under the direction of DSP, Safidon, PW-8 Satish Kumar made available currency notes of Rs.3500/- available. When Satish Kumar approached DSP, Safidon, with that amount he found that the DSP was available in the office and Sh. Inder Singh, Tehsildar was also sitting with him at that point of time. In the presence of PW-6 Inder Singh, PW-8 Satish Kumar handed over currency notes of Rs.3500/- to DSP, Safidon. The amount handed over included one currency note of the denomination of Rs.500/- eleven currency notes of Rs.100/- denomination and the remaining thirty-eight currency notes of Rs.50/- denomination. The DSP noted down the number of each currency note. Thereafter, the notes were initialled by the DSP and the Tehsildar and phenolphthalein powder was applied to the currency notes. The DSP, then, proceeded to conduct the personal search of PW-8 Satish Kumar. That transaction was documented vide memo Ex. PG, which was attested by PW-6 Inder Singh, Tehsildar, PW-8 Satish Kumar and PW-9 Satbir Singh who had been summoned by Satish Kumar under the direction of the DSP. A raiding party was formed. PW-9 Satbir Singh was assigned the role of the shadow witness. PW-8 Satish Kumar was directed to give the agreed signal after passing on the amount to the appellant. The shadow witness was to further pass on the agreed signal to the other members of the raiding party. PW-8 Criminal Appeal No.627-SB of 1998 -4- *** Satish Kumar went inside the cabin of the appellant in the bank at about 4.45 P.M. Shadow witness PW-9 Satbir Singh stationed himself at a window near that cabin; while the other members of the raiding party stayed over at a Panwala shop situated near the premises afore-mentioned. Once he was inside the cabin, Satish Kumar informed the appellant that he could pay up the illegal gratification of only Rs.3500/-. The appellant insisted that he would accept only the originally demanded amount of Rs.4000/- After a haggling that lasted about 10-15 minutes, the appellant accepted the currency notes of Rs.3500/- from Satish Kumar and put the same in side a pocket of the bag lying on his table. On getting the agreed signal from Satish Kumar, PW-9 Satbir Singh passed on the agreed signal to the other members of the party which swooped upon the appellant. Satish Kumar, on being queried by the Investigating Officer about whether he had paid the amount of illegal gratification, owned it up. After informing the appellant, that the party was inclined to search the bag, the party proceeded to do so. The person of the appellant, and also contents of the bag, were searched. Currency noties of Rs.3500/- ( Ex. P5 to Ex. P54) were recovered from the bag Ex. P4. The hand wash of the accused was obtained in a jug. The jug water was, thereafter, made into a sealed nip. Then, the inside of pocket of the bag (Ex. P4) was also washed and the water turned light pink. That wash was also put in a nip and was sealed with that very seal. Thereafter, the currency notes were washed in Criminal Appeal No.627-SB of 1998 -5- *** that jug water which also turned light pink. The prosecution examined PW-1 Rajinder Singh, PW-2 HC Ram Niwas, PW-3 Constable Ramesh Kumar, PW-4 S.S.Thind, PW-5 M.L.Aggarwal, PW-6 Inder Singh, PW-7 S. Srinivasan, PW-8 Satish Kumar, PW-9 Satbir Singh, PW-10 ASI Daya Nand and PW- 11 H.K.Kalson, DSP in support of its plea at the trial. The appellant raised a pure and simple plea of innocence when he was examined in the course of the statement under Section 313 Cr.P.C. He alleged false implication by averring in that statement as under:- “I have been involved in this fase case because Satish Kumar was annoyed with me on account of my telling him that stocks were insufficient for recommending the loan of Rs.85000/- and he had to manage the stocks by purchase or by loan and as such he managed to secure the services for obliging DSP.” The appellant did not adduce any evidence in defence. Learned Trial Judge placed implicit reliance upon the prosecution presentation, declined appellant's plea of innocence and proceeded to record the impugned finding of conviction( and order on point of sentence). The appellant is in appeal before this Court. I have heard Dr. Surya Parkash, learned counsel appearing on behalf of the appellant and Shri S.S.MOr, learned Senior Deputy Advocate General, Haryana and have carefully gone Criminal Appeal No.627-SB of 1998 -6- *** through the file. Learned counsel for the appellant raised the following items of grievance in support of his plea for invalidation of the impugned finding of conviction:- 1) There is no evidence whatsoever to prove that the recovery of tainted currency notes was effected from the person of the appellant; 2) The prosecution presentation does not inspire confidence inasmuch as it is not supported by the testimony of an independent witness; 3) The prosecution presentation is not free from doubt in view of the fact that there is no evidence to prove that the sample seal/seal impression were deposited with the MHC and/or were forwarded to the FSL. In the absence of that evidence, the argument proceeded, would prove that the prosecution had not been able to prove the intactness of the case property ( hand wash, bag wash and currency notes wash till analysis thereof by the FSL). In that very context, learned counsel found fault with the FSL report as well by pointing out that one of the sealed nips purporting to contain the bag wash was described by the FSL as “some dirty solution with sediments approx. 50 ml. Stated to be “bag-wash”. Criminal Appeal No.627-SB of 1998 -7- *** The pleas advocated on behalf of the appellant do not merit acceptance. The reasons therefor are indicated as under:- The grievance indicated at item no. 1 is neither here nor there. Infact, it was no where the prosecution presentation that the appellant had put the currency notes into his pocket. The very allegation by the prosecution was that the appellant, after receiving the tainted money, put the same inside the pocket of a bag which was lying near him. The fact that it was the appellant who received the tainted money was proved by the testimony on oath of Satish Kumar PWE-8 The result of the hand wash, bag wash and currency notes wash was all confirmed that fact. In the face of the advancement of the case law and the awareness on the part of the citizenry in the relevant behalf, the corrupt public servants have been found to have displayed rare sense of ingenuity. There are a number of cases in which it is found that the corrupt public servant would require the tainted money to be put in side the drawer of his table or under a file which may be lying upon the table. That ingenuity is aimed at disproving the prosecution presentation that the corrupt public servant had himself accepted the tainted money. Ofcourse, the Courts have been aborting such acts of ingenuity by recording a finding in the given circumstances of a particular case that the tainted money had, infact, been received by the corrupt public servant and it could not wriggle out of accountability in the relevant behalf just by adducing evidence to the effect that money had not been recovered from his person and Criminal Appeal No.627-SB of 1998 -8- *** that the money had been recovered from elsewhere. In this case too, the appellant appears to have displayed a touch of ingenuity in having received the tainted money which he put into the side pocket of a bag. This aspect has to be appreciated in view of the result of hand wash, bag wash and currency notes wash. The plea shall stand negatived accordingly. Insofar as the defence offered by the appellant is concerned, it is plainly brittle. If there was even an iota of truth in the plea taken up by the appellant in the course of statement under Section 313 Cr.P.C., there is no reason why he would not have adduced evidence to prove that he did make a report to the competent authority that the stocks available with the complainant, as security for the 'limit' applied for by him, were in adequate or deficit. It is only on proof of that fact that he could be allowed to urge motive on the part of the first informant/complainant to falsely implicate him. Apart from the above noticed items of grievance, at the hands of learned counsel for the appellant, he also argued that there is no reason why the first informant would have agreed to pay the amount of illegal gratification to the appellant because the latter was not the sanctioning authority and his role was only that of a recommending authority. “The plea is too feeble to be accepted. A common man, particularly a business man in need of funds, would not be in the know of the fact about who exactly is the sanctioning authority. Even if the first informant is inferred to have had notice of Criminal Appeal No.627-SB of 1998 -9- *** that fact, it is not even denied on behalf of the appellant that he was the recommending authority which would, obviously, have a pivotal role to play in the sanction of 'limit'. The plea shall stand negatived accordingly. The other count of grievance ( with regard to non-joining of independent witness) is also illogical. No doubt PW-9 Satbir Singh conceded that he is a first cousin of Satish Kumar PW-8, his testimony does not attract the tag of a biased witness. It is matter of common observation that the members of public are reluctant to associate themselves, with a such like exercise. It may be on account of fear of reprisal at the hands of an accused or it could be on account of the obvious “I do not care' attitude of the citizenry. The statement that public witness avoid association with the police investigation in order to avoid harassment on account of repeated visits to the police station and the Courts is also not far from truth. In that prevalent scenario, there is nothing unnatural if only an acquaintance would assist investigating agency in the matter. The reliance placed by the learned counsel upon G.V.Nanjundiah Vs. State (Delhi Administration) 1987 (Supp) Supreme Court Cases 266 is misconceived. In that case, the Investigating Officer had associated two trap witnesses. One out of them had already joined the police exercise 3-4 times. The other was a colleague of that witness. It was under those circumstances that the Apex court held that none of them could be termed as independent witness. In the present case, however, there is no averment that PW-9 Satbir Singh Criminal Appeal No.627-SB of 1998 -10- *** had any prior connection with the police. In that view of things, I have no hesitation in discarding the appellant's plea tarring Satbir Singh PW-9 to be a man of biased character. In support of the last indicated item of grievance, the learned counsel placed on State of Rajasthan Vs. Gopal (1998) 8 Supreme Court Cases 449. The reliance placed upon that judicial pronouncement is thoroughly misconceived. That was a case under the NDPS Act. In such type of cases, there is certain amount of compulsive sanctity attached to sealing of the case property. Even otherwise, the plea advocated is oblivious of the fact that the FSL noticed in the report itself that “the seals were intact and tallied with the sample seal as per forwarding authority's letter.” In that view of things, I have no hesitation in negativing the relevant plea put forward on behalf of the appellant. Insofar as the other part of the last indicated item of grievance is concerned, it too is without any force. The FSL recorded a categorical finding that Sodium carbonate and phenolphthalein were detected in exhibit-1, 2 and 3 and that phenolphthalein was detected in exhibits 4 and 5. Even at the cost of repetition, it may be noticed here that Exhibits 1,2 and 3 purported to be hand wash, bag wash and currency notes wash respectively. Item No. 4 was rexion bag itself and item no. 5 was a sealed parcel containing the currency notes. The appellant, cannot, thus, draw any sustenance from the FSL report to indicate a case for exoneration Criminal Appeal No.627-SB of 1998 -11- *** from liability. In the light of the fore-going discussion, the appeal is held to be devoid of force and is ordered to be dismissed. September 12, 2008 (S. D. ANAND) Pka JUDGE