Crl.Appeal No. 569-SB of 2005 1 IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH. Crl.Appeal No. 569-SB of 2005 Date of decision:2.5.2011 Jai Bhagwan ... Appellant versus State of Haryana ... Respondent CORAM: HON'BLE MR. JUSTICE JORA SINGH. Present: Mr.Puneet Bali, Advocate, with Mr.Deepak Jain, Advocate, for the appellant. Mr.Raja Sharma, AAG, Haryana. ... JORA SINGH, J. Jai Bhagwan preferred this appeal to impugn the judgment of conviction dated 12.3.2005 and order of sentence dated 14.3.2005 rendered by Special Judge, Sonepat, in Sessions Case No. 14 of 2003, arising out of FIR No.70 dated 28.10.2002 under Sections 7/13 of the Prevention of Corruption Act, 1988 (for short, `the Act'), PS S.V.B., Rohtak. By the said judgment, he was convicted under Sections 7/13(1) (d)(ii) of the Act and sentenced to undergo RI for one year and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for three months under Section 7 of the Act and to undergo RI for one year and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for six months under Section 13(1)(d)(ii) of the Act. Both the substantive sentences were ordered to run concurrently. Prosecution story, in brief, is that Satpal, complainant, Crl.Appeal No. 569-SB of 2005 2 approached Vigilance Inspector with application (Ex.PG) dated 28.10.2002 on the allegation that he owned land and wanted to construct a house. For that purpose, he wanted to raise loan. He had approached Patwari for getting copy of farad of the land in the month of May, 2002. Accused was working as Patwari and he had demanded Rs.840/-. Rs.200/- was paid to him. But after that, he used to visit his house and demanded Rs.640/-. In view of written complaint (Ex.PG) dated 28.10.2002, Anil Sharma, City Magistrate, was directed to join the raiding party by the Deputy Commissioner. Complainant had handed over Rs.640/-, i.e., 6 currency notes each of the denomination of Rs.100/- and 2 currency notes each of the denomination of Rs.20/-. Currency notes were initialled by the IO and City Magistrate. Phenolphthalein powder was applied to the currency notes and notes were handed over to the complainant with direction to hand over only those currency notes to the accused on demand. Ranbir Singh, employee of Police Department, was joined as shadow witness. He was directed to accompany the complainant and hear the conversation amongst the complainant and the accused regarding demand of illegal gratification and to give agreed signal to the raiding party. As per planning, complainant and shadow witness were sent to the office of the accused. Remaining members of the party stayed at some distance. On demand of illegal gratification, marked currency notes were handed over to the accused. Then agreed signal was given to the raiding party. On receipt of agreed signal, raiding party headed by Inspector Tara Chand had gone to the office of the accused. Tainted currency notes were recovered from the accused. Solution was prepared by adding Sodium Carbonate. Then colour Crl.Appeal No. 569-SB of 2005 3 of solution did not change. Hands of the accused were got washed in the same solution. Then colour of solution changed into light pink. Solution was transferred into bottles and same were sealed. Sealed parcels were taken into police possession vide separate memo attested by the witnesses. Copies of jamabandi, aks sajra and mutation were recovered from the accused and the same were taken into police possession vide separate memo attested by the witnesses. After receipt of sanction to launch prosecution, challan was presented in Court. Accused was charged under Sections 7/13 of the Act, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Subhash Chander, Kanungo, stated that after the appellant, he had taken over the charge as Revenue Patwari. He had handed over photocopies of jamabandi and mutation, Ex.PA and Ex.PB, respectively, to the IO. PW2 HC Ram Pal tendered his affidavit (Ex.PC). PW3 Ram Bhaj, Sadar Kanungo, proved sanction (Ex.PD). PW4 Constable Inder Pal proved scaled site plan (Ex.PE). PW5 HC Daya Nand tendered his affidavit (Ex.PF). PW6 Inspector Sunehara Singh stated that on receipt of ruqa (Ex.PG), he had recorded formal FIR (Ex.PG/1). PW7 Anil Sharma is the official witness and stated that he had joined raiding party headed by Inspector Tara Chand. Tainted currency notes were recovered from the possession of the accused. PW8 Ranbir Singh is the shadow witness and stated that he had Crl.Appeal No. 569-SB of 2005 4 joined raiding party. He along with complainant had gone to the office of the accused. Accused had demanded illegal gratification and on receipt of illegal gratification, he had given agreed signal to the raiding party. On receipt of agreed signal, raiding party had gone to the office of the accused and recovered tainted currency notes from the accused. PW9 Satpal is the complainant. He has reiterated his stand before the police. PW10 Tara Chand 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 that complainant came to him and had demanded copies of jamabandi required to be submitted in a criminal case registered against him. He told the complainant that some extra work had been assigned to him regarding distribution of old age pension and collecting fodder for Gujrat. Lot of time was required to prepare the documents as the documents were several. Complainant was requested to visit again on 22.10.2002 and promised that papers would be ready within a week but complainant was not happy. There was no demand of illegal gratification. He had simply requested the complainant to deposit fee for preparation of the documents. Complainant was directed to deposit Rs.640/- in the Tehsil office or to hand over the same to him. There was party faction in the village. Due to this reason, he was falsely implicated. In defence, DW1 Devender Kumar, Patwari, stated that Subhash Chander, Kanungo, had handed over additional charge of Village Ghasoli to him. Document (Ex.DB) was found in the drawer of the table. Crl.Appeal No. 569-SB of 2005 5 Ex.DB consists of 21 pages. Date of preparation of the document is 28.10.2002. Fee charges come to Rs.640/-. Fee chargeable was written on all the pages, except last page. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on the file. Learned defence counsel for the appellant argued that appellant was serving as a Patwari on the relevant date, i.e., 28.10.2002. Complainant demanded copies of revenue record to defend himself in a murder case registered against him. Rs.640/- was to be deposited as fee of the documents. Documents were prepared on 28.10.2002. Chargeable fee was written on each page signed by the appellant, except last page. According to the complaint (Ex.PG), copy of farad was obtained in the month of May, 2002. Rs.200/- was paid when demand was of Rs.840/-. Remaining Rs.640/- was being demanded by the appellant. In case, appellant was demanding illegal gratification, then immediately report should have been lodged with the police. There was no idea to wait till 28.10.2001. Allegation of the complainant was that copies of revenue record were required to raise loan but note on the jamabandi shows that complainant had already obtained loan from the bank. In fact, murder case was registered against the complainant. Complainant was facing trial. In defence, complainant was to produce copies of revenue record and for that purpose, complainant had contacted the appellant. Complainant was directed to deposit legal fee. According to the story, Ranbir Singh was joined as Crl.Appeal No. 569-SB of 2005 6 shadow witness but he was an employee of the Police Department. In the month of May, 2002, copy of farad was taken by the complainant. House of the complainant was in the abadi. Office of the appellant was also in busy locality. Number of independent witnesses were available, but no independent witness was joined. When legal fee was being demanded by the appellant, then no question of conviction under the Act. Learned State counsel argued that copy of farad was required to raise loan and to issue copy of farad, appellant demanded illegal gratification. Recovery of tainted currency notes was in the presence of shadow witness and official witness, then presumption is that appellant had demanded illegal gratification. If the appellant was demanding legal fee only, then note should have been given in the roznamcha. Before the present occurrence, appellant had no enmity with the complainant. Without enmity, there was no idea to choose the appellant due to party faction in the village. Admittedly, appellant was serving as Revenue Patwari on 28.10.2002. Satpal, complainant, demanded copy of farad to raise loan. In the month of May, 2002, farad of land was supplied to the complainant. At that time, appellant was demanding Rs.840/-, but only Rs.200/- was paid to the appellant. Remaining Rs.640/- was demanded by the appellant as illegal gratification, whereas defence version of the appellant was that complainant contacted the appellant to get copies of revenue record but to prepare copies, time was required. Complainant was directed to visit the office after a week. Documents were prepared and Rs.640/- was payable as legal fee. Fee was demanded for issuance of copies of revenue record. Rs.640/- was not demanded as illegal gratification. Now the question is whether there Crl.Appeal No. 569-SB of 2005 7 was demand of illegal gratification of Rs.640/- and as per demand, there was payment of Rs.640/- in the presence of shadow witness and later on, recovery of tainted currency notes in the presence of complainant, shadow witness and official witness or not. Undisputedly, appellant was serving as Revenue Patwari in the month of October, 2002, and according to the appellant, Satpal, complainant, demanded copies of revenue record and for issuance of copies of revenue record, legal fee was demanded, whereas allegation of the complainant was that in the month of May, 2002, to get loan to raise construction, appellant was requested to issue copy of farad of the land. Appellant had demanded Rs.840/-. Rs.200/- was paid to the appellant and Rs.640/- was due. Farad of the land was supplied to the complainant but after that, appellant demanded remaining payment, i.e., Rs.640/-. Ultimately, complaint (Ex.PG) dated 28.10.2002 was lodged. No evidence on the file that in the month of May, 2002, copy of jamabandi or mutation was supplied to the complainant. In case, in the month of May, 2002, appellant had supplied copy of jamabandi or mutation or aks sajra to the complainant against payment of Rs.200/-, then document supplied by the appellant should have been on the file to show that allegation of the complainant is correct one. If complainant after receipt of document in the month of May, 2002, had produced that document before any authority, then from the concerned authority that document could easily be summoned by the prosecution to show that, in fact, in the month of May, 2002, appellant had supplied copy of jamabandi or mutation or aks sajra to the complainant. Second allegation of the complainant was that in the month of May, 2002, on receipt of copy of revenue record, Rs.200/- was paid to the Crl.Appeal No. 569-SB of 2005 8 appellant but if in the month of May, 2002, appellant was demanding illegal gratification to issue copy of jamabandi or mutation or any other document, then in the month of May, 2002, complaint should have been lodged with the Vigilance Department. After payment of Rs.200/- as illegal gratification in the month of May, 2002, in case copy of jamabandi or mutation was collected by the complainant, then complaint should have been lodged in the said month but no explanation why in the month of May, 2002, when there was a demand of illegal gratification to issue copy of jamabandi or mutation, no report was lodged with the Vigilance Department. After receipt of copy of revenue record in the month of May, 2002, when there was payment of Rs.200/- and Rs.640/- was due, then the appellant was compelling the complainant to make payment, but statement of the complainant seems to be not correct one because copy of the document supplied to the complainant in the month of May, 2002, is not on the file. After payment of Rs.200/-, no complaint to any authority. On 28.10.2002, matter was brought to the notice of the Vigilance Department. Ranbir Singh was joined as shadow witness but he is from the Police Department. Independent witnesses were available but no one was joined. Appellant was pressurizing the complainant to pay Rs.640/- and if appellant was pressurizing the complainant to pay Rs.640/- and office of the appellant was in the busy locality, then independent witness should have been joined. No explanation why Ranbir Singh from the Police Department was joined as shadow witness. Complainant is to be treated as an accomplice. Independent corroboration was required. In 2008 Cr.L.Journal 1825, Anand Parkash and another vs. State of Haryana, it was observed by this Hon'ble High Court that bribe Crl.Appeal No. 569-SB of 2005 9 giver is an accomplice. Evidence of witnesses who are accomplices must be treated as the evidence of accomplice. Statement of the complainant requires independent corroboration. Mere recovery of tainted currency notes is not sufficient for conviction of the appellant when from the very beginning, case of the appellant was that he was demanding legal fee for issuance of copies of revenue record. Common experience shows that when there is a demand of illegal gratification to issue any document, then payment is demanded in round figure. No explanation why only Rs.840/- was demanded as illegal gratification in the month of May, 2002, or Rs.640/- in the month of October, 2002. If appellant was to demand illegal gratification for issuance of copies of revenue record, then he could demand Rs.850/-, Rs.650/-, Rs.600/- or Rs.700/-. No idea to demand either Rs.840/ or Rs.640/- to issue copies of revenue record. When independent witnesses were available, then joining of official of the Police Department as shadow witness shows that story is not genuine one. According to the complainant, copy of jamabandi or mutation was required to secure loan to raise construction but jamabandi shows that already complainant had taken loan. When complainant had already taken loan, then again there was no need to get copy of jamabandi or mutation to get loan. Evidence shows that at the time of raid, murder case was registered against the complainant. According to the appellant, copy of jamabandi or mutation was required for defence purposes. Complainant while appearing in Court, then admitted that he was facing trial in a murder case at the time of raid. Complainant also admitted that appellant was not Crl.Appeal No. 569-SB of 2005 10 handing over a copy of mutation required for getting the loan from Land Mortgage Bank and the appellant was demanding Rs.640/- by saying that payment is Government fee. Then he protested and came out of his office and had met one police official, who advised him to contact the Vigilance office. In cross-examination, complainant admitted that when he had demanded copy of mutation from the appellant, then appellant told him that fee of copy of mutation is Rs.640/-. Till Rs.640/- is not paid, copy of mutation is not to be supplied. Application (Ex.PG) was got written from one shopkeeper and the same was given to Inspector Tara Chand. In the month of May, 2002, when he had contacted the appellant, then appellant had demanded Rs.840/- to issue farad of the land but only Rs.200/- was paid. Farad of land was received by him in the month of May, 2002. In the complaint (Ex.PG) dated 28.10.2002, he did not state that appellant used to visit his house and demand payment. Complainant was confronted with his complaint (Ex.PG) wherein aforesaid facts stand recorded. In the month of May, 2002, copy of farad was obtained for taking loan. Already he had applied for loan and the same was sanctioned. After May, 2002, till raid, he had been meeting the appellant. At the time of raid, murder case was fixed for defence. From the statement of Satpal, complainant, one thing is clear that in the month of May, 2002, farad of the land was supplied to him and farad was required to get loan but this fact is not correct one because note on the jamabandi shows that earlier to the raid, complainant had obtained loan. At the time of raid, murder case registered against the complainant was at the stage of defence. Possibility of getting copies of revenue record to produce in defence cannot be ruled out. Appellant was demanding legal fee but complainant was not agreeing to pay legal fee. Then story was Crl.Appeal No. 569-SB of 2005 11 concocted that in the month of May, 2002, there was a demand of Rs.840/-, but against, payment of Rs.200/-, copy of farad was supplied to get loan. If story was correct one, then copy of farad supplied in the month of May, 2002, could easily be produced. If in the month of May, 2002, appellant was demanding illegal gratification to issue copy of farad, then there was no idea to remain silent till October, 2002. PW1 Subhash Chander, Kanungo, stated that on 28.10.2002, he had supplied copies of jamabandi and mutation, i.e., Ex.PA and Ex.PB, respectively, to Satpal, complainant. In cross-examination, admitted that copy of revenue record is supplied to the concerned party on oral request in many cases. When document is prepared, then fee is mentioned in the concerned revenue record. DW1 Devender Kumar, Patwari, stated that copies of jamabandi and aks sajra were prepared by the appellant. Ex.DB is the copy of jamabandi consisting of 21 pages. Every page was signed by the appellant. Note was given that document was prepared on the request of Satpal. Document was prepared on 28.10.2002 and fee chargeable was Rs.640/-. That means, on 28.10.2002, when complainant was facing trial in a murder case, then he required copy of revenue record for production in defence. On the request of the complainant, copies of jamabandi, aks sajra and mutation were prepared, signed by the appellant. Total fee payable was Rs.840/-. To issue copy of jamabandi (Ex.DB), official fee payable was Rs.640/-. That means, appellant was demanding official fee for the issuance of copy of jamabandi. But complainant seems to be not agreeing to pay official fee. Then story was concocted that in the month of May, 2002, copy of farad was supplied and at that time, Rs.840/- was demanded. Out of Crl.Appeal No. 569-SB of 2005 12 Rs.840/-, only Rs.200/- was paid and remaining payment of Rs.640/- was being demanded by the appellant. Then ultimately, complaint (Ex.PG) dated 28.10.2002 was given. In fact, in May, 2002, there was a request from the side of the complainant to issue copy of jamabandi. Copies of jamabandi, mutation and aks sajra were prepared on 28.10.2002. Documents were taken into possession on the same day. Rs.640/- was to be paid by the complainant as legal fee. Same payment was recovered from the appellant. No dispute regarding demand and recovery of Rs.640/- but only dispute was whether Rs.640/- was demanded as illegal gratification or official fee for issuance of Ex.DB, copy of jamabandi consisting of 21 pages. PW7 Anil Sharma is the official witness and admitted that copy of farad can be taken from Halqa Patwari either on oral or written request. No person from the public, i.e., shopkeeper or rehriwala was joined. No enquiry from the appellant about the copy of mutation or other revenue record relating to the complainant. Enquiry was made from the appellant regarding the documents and documents were handed over by the appellant. There was no checking about the fee chargeable for the documents. Defence version of the appellant was that he was demanding official fee for issuance of documents. Documents were prepared on the same day on the request of complainant, signed by the appellant. To issue copy of jamabandi (Ex.DB), Rs.640/- was the official fee. No enquiry by the IO as to what was the official fee chargeable for issuance of copy of jamabandi (Ex.DB). All this shows that dispute was regarding payment of official fee. To issue Ex.DB, Rs.640/- was chargeable but complainant was not agreeing to pay Rs.640/-. Then story was concocted that earlier, there was a demand of Rs.840/- in the month of May, 2002, but against, payment of Rs.200/-, copy of farad was Crl.Appeal No. 569-SB of 2005 13 supplied. After that, there was demand of remaining payment, i.e., Rs.640/-. When there are two versions, then the version favourable to the appellant is to be accepted. According to the prosecution story, Rs.640/- was demanded as illegal gratification to issue copy of jamabandi (Ex.DB), whereas defence version of the appellant was that Rs.640/- was official fee to issue copy of jamabandi (Ex.DB). That means, defence version seems to be more probable than the prosecution story. In 2002 (10) Supreme Court Case 371, Punjabrao vs. State of Maharashtra, conviction under the Prevention of Corruption Act- Accused offers an explanation for receipt of the alleged amount, then the question that arises for consideration is that whether that explanation can be said to have been established- Hon'ble Supreme Court observed that accused can establish his defence by preponderance of probability- If the explanation offered by him under Section 313 Cr.P.C. is found to be reasonable, then it cannot be thrown away merely on the ground that he did not offer the said explanation at the time when the amount was seized. In view of all discussed above, I am of the opinion that evidence on file was not rightly scrutinized by the trial Court. Impugned judgment suffers from infirmity and illegality and the same is set aside. Appellant is acquitted of the charge levelled against him. Appeal is allowed. 2.5.2011 ( JORA SINGH ) pk JUDGE