Criminal Appeal No. 689-SB of 1995 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.689-SB of 1995 Date of decision: January 07, 2010 Amarjit Singh .....APPELLANT VERSUS State of Punjab .....RESPONDENT CORAM: HON'BLE MR JUSTICE T.P.S.MANN PRESENT: Mr Baldev Singh, Sr. Advocate with Mr Naresh Prabhakar, Advocate Mr P.S.Sidhu, Additional Advocate General, Punjab T.P.S .MANN,J. The present appeal is directed against the judgment and order dated 3.11.1995, passed by Special Judge, Kapurthala, whereby the appellant was convicted and sentenced as follows: Convicted under Section 7 of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- and in default thereof, to undergo further rigorous imprisonment for one month; and Convicted under Section 13 (2) of the Prevention of Corruption Act and sentenced to undergo rigorous imprisonment for two years and to pay a fine of Rs.1000/- and in default thereof, to undergo further rigorous imprisonment for one month. Both the sentences were ordered to run concurrently. As per the prosecution case, complainant Malkiat Singh of village Fatehpur was granted a loan under the Unemployment Scheme by Deputy Director, Dairy Development, Punjab to run a dairy farm. The loan Criminal Appeal No. 689-SB of 1995 -2- was to be disbursed through the Kapurthala Primary Co-operative Agricultural Land Development Bank Ltd., Kapurthala, hereinafter referred to as 'the Bank'. First instalment of Rs.14,000/- was disbursed to the complainant by the Bank in March 1994. The second instalment of Rs.10,000/- was due to him and to tak,e payment thereof, the complainant approached the appellant, who was posted as Manager of the bank. The appellant continued to make false promises in disbursing the second instalment to the complainant. On 4.7.1994 at 9.00 AM, when the complainant approached the appellant in his office, he was asked to pay Rs.1000/- as illegal gratification. The complainant expressed his inability to pay such a huge amount. The appellant brought down the demand to Rs.800/-. Though the complainant promised to make the payment of that amount on that very day, yet he had no intention to oblige the appellant. Accordingly, he contacted Daljit Singh son of Gurnam Singh, who also advised him not to pay any bribe to the appellant. Both Malkiat Singh and Daljit Singh went to the office of Vigilance Bureau, Kapurthala, where DSP Amrik Singh met them. He was apprised about the demand of the illegal gratification by the appellant. The complainant handed over eight currency notes of the denomination of Rs.100/- each to DSP Amrik Singh, who recorded statement Ex.PM of complainant Malkiat Singh and sent the same to Police Station Kotwali, Kapurthala, where FIR Ex.PM/2 was registered. Complainant Malkiat Singh and Daljit Singh were informed about the manner in which the raid would be conducted. Demonstration was given about the action of phenolphthalein powder when coming in contact with the water. DSP Amrik Singh applied phenolphthalein powder to Criminal Appeal No. 689-SB of 1995 -3- the eight currency notes and handed them over to complainant Malkiat Singh with the instructions to pass on the same to the appellant on demand. Daljit Singh was instructed to accompany Malkiat Singh and to give a signal once the bribe money was received by the appellant. Kewal Singh, Junior Field Investigator in the office of Animal Husbandry, Kapurthala was associated in the raiding party. The raiding party reached the office of the appellant. While DSP Amrik Singh, Kewal Singh and other police officials stayed back at some distance, Malkiat Singh and Daljit Singh went inside the office of the appellant, who was present there. On being asked by the appellant, Malkiat Singh told him that he had arranged the necessary money. The appellant directed him to go out of his office and to pay him the bribe money near a tea-stall. Daljit Singh kept on standing outside the office. While appellant went in his car towards the nearby tea-stall, Malkiat Singh followed him on a scooter. Daljit Singh also reached there. On a demand made once again by the appellant, Malkiat Singh handed over the tainted currency notes to him, which he put in his bushirt pocket. Soon thereafter, DSP Amrik Singh, Kewal Singh and other police officials reached the spot and nabbed the appellant, who was sitting in his car. On seeing the police party, the appellant managed to throw the tainted notes in the car, which were collected by DSP Amrik Singh. His wrists were held by Inspector Shangara Singh and Constable Karnail Singh. He was taken out of his car. DSP Amrik Singh obtained a glass of water and mixed sodium carbonate therein. When the appellant was made to dip his hand in the water, the colour of the same turned light pink. The solution was transferred in a nip and taken into possession. The bushirt of the appellant was got removed which was then Criminal Appeal No. 689-SB of 1995 -4- dipped into another solution of water and sodium carbonate and the colour of the solution became light pink. This solution was also transferred into a nip and taken into possession. The bushirt of the appellant was packed and sealed. On search of the appellant, an amount of Rs.905/- in cash was recovered from the back pocket of his pant. The appellant was then taken to his office where he produced loan file of complainant Malkiat Singh from the drawer of his table. Rough site plan of the place from where the appellant was apprehended was prepared by DSP Amrik Singh, who also prepared site plan of the office of the appellant. During investigation of the case, sanction was obtained for prosecution of the appellant. Challan was, thereafter, presented in the Court and copies of the documents were supplied to the appellant. The appellant was charged under Section 7 read with Section 13 (2) of the Prevention of Corruption Act, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW-1 Daljit Singh, PW-2 Sukhdev Singh, PW-3 Kewal Singh, PW-4 Mohinder Singh, PW-5 Mohinder Singh, Junior Assistant, PW-6 Malkiat Singh, PW-7 Balbir Singh and PW-8 DSP Amrik Singh. When the appellant was examined under Section 313 Cr.P.C, he denied the circumstances appearing against him in the prosecution evidence. According to him, the second instalment of Rs.10,000/- was to be paid to complainant Malkiat Singh only after utilization of the amount of first instalment by him by constructing a shed. The file pertaining to sanction of the second instalment was put up before him on 20.6.1994 and after considering the report of field staff, necessary orders were made to make the payment to him, but soon thereafter, he got a telephone call from Criminal Appeal No. 689-SB of 1995 -5- Rasal Singh, Director of the Bank that there was a complaint against Malkiat Singh of having not utilized the amount of Rs.14,000/- of the first instalment and accordingly, the appellant was instructed to release the second instalment only after conducting personal verification. Malkiat Singh approached him to release the second instalment but he expressed his inability till he made personal verification. However, Malkiat Singh was insisting to make the payment of the second instalment on the basis of the report of field staff. As the appellant did not agree, Malkiat Singh became annoyed. On the day of the occurrence, he was to go to Jalandhar to attend a meeting. He found Malkiat Singh outside his office. When he turned his car towards city Kapurthala for collecting certain papers from a photostat shop, Malkiat Singh followed him on a scooter and forced him to stop his car. Malkiat Singh then tried to put some money by force in the pocket of his bushirt through the window of the car. In the scuffle, the currency notes fell inside the car and soon after he was nabbed by the police and false case foisted upon him. In defence, the appellant examined DW-1 Joginder Singh, DW-2 Rasal Singh, DW-3 Hazura Singh and DW-4 Mohan Lal. After hearing learned counsel for the parties and going through the evidence brought on record, the trial Court held that the prosecution had succeeded in bringing home the guilt against the appellant of demand, acceptance and recovery of the bribe and accordingly, the appellant was convicted and sentenced, as mentioned above. I have heard learned counsel for the parties and scanned the evidence with their able assistance. PW-1 Daljit Singh, who was the shadow witness did not Criminal Appeal No. 689-SB of 1995 -6- corroborate the prosecution case to the extent of making of demand of the illegal gratification by the appellant from complainant Malkiat Singh at the time of raid. He did not state about Malkiat Singh meeting him at his shop at Kapurthala. He also stated about his accompanying Malkiat Singh to the office of Vigilance Bureau, Kapurthala and making of statement by Malkiat Singh before DSP Amrik Singh. He also stated that he was directed to accompany Malkiat Singh and to give a signal once the demand of the bribe made by the appellant and the amount so offered by the complainant received by him. However, in his examination-in-chief itself, he stated that he accompanied Malkiat Singh to the office of the appellant but stayed back at the gate of the bank, whereas Malkiat Singh went inside. After a short while Malkiat Singh came out with the appellant. No talk was held between the appellant and complainant Malkiat Singh in his presence while in the premises of the bank. He also did not hear the appellant making any demand of bribe money from Malkiat Singh in his office. When the appellant and the complainant came out, the appellant sat in a car and left, whereas Malkiat Singh followed him on a scooter. The appellant stopped the car in Post Office Chowk. At that place, he saw Malkiat Singh giving tainted notes to the appellant, but the latter was not accepting the same. As PW-1 Daljit Singh did not support the prosecution case on material aspects regarding demand and acceptance of bribe money by the appellant, he was declared hostile and cross-examined by the Additional Public Prosecutor, but still he refused to toe the line of the prosecution. Malkiat Singh PW-6, the trap witness, while deposing before the trial Court reiterated his version as given at the time of recording of his statement Ex.PM and thereafter, narrating the details about the demand and Criminal Appeal No. 689-SB of 1995 -7- receipt of bribe money by the appellant. In cross-examination, he stated that when he met the appellant in connection with payment of the money of Rs.10,000/- and the appellant demanded bribe money from him, he was told by the appellant about having been instructed by Rasal Singh, Director not to make the payment of the loan until and unless utilization of the amount of Rs.14,000/- was shown and thus, the second instalment was not to be given to him. He, however, denied that because of the appellant telling him about the instructions received by him from Rasal Singh, Director, he made up his mind to involve the appellant in a false case or that the appellant never made any demand of bribe money from him. The prosecution had associated Kewal Singh to vouch-safe the recovery of the tainted currency notes from the appellant. While appearing as PW-3, Kewal Singh, who was working as Junior Field Investigator in the office of Animal Husbandry, Kapurthala, deposed that when the appellant left in a car followed by Malkiat Singh on a scooter, the latter made the former stop his car near Camera Bagh and when a signal was received, this witness rushed to the place where Malkiat Singh was forcibly handing over the currency notes to the appellant. PW-3 Kewal Singh was also declared hostile and cross examined by the Additional Public Prosecutor. Despite the same, the prosecution could not succeed in bringing him back on the track or in establishing that he had deposed falsely at the instance of the appellant. PW-4 Mohinder Singh, Deputy Manager of the Bank testified that complainant Malkiat Singh was sanctioned a loan of Rs.90,000/- for dairy farm and he was to be paid the second instalment of Rs.10,000/-. The Field Officer had to make the report of utilization of the amount of the first Criminal Appeal No. 689-SB of 1995 -8- instalment and after his approval, the Manager was to release the second instalment. The payment of the second instalment to Malkiat Singh was allowed by the appellant on the application Ex.PL at point 'A' under his signatures. In cross-examination, he admitted that at the time of disbursement of the second instalment of loan to Malkiat Singh after having been sanctioned by the appellant, this witness was called by the appellant to his office and told that the second instalment was to be disbursed only after the personal verification by him regarding the utilization of the first instalment of Rs.14,000/-. The witness stated that he did not know specifically till the day of the occurrence, whether the appellant had been able to spare time for conducting personal verification of the utilization of the first instalment by Malkiat Singh. PW-7 Balbir Singh, Manager of the Bank stated that the loan of Rs.90,000/- was sanctioned to Malkiat Singh on 1.3.1994 by the Bank. The loan was sanctioned on the recommendation of the appellant, who was Manager of the Bank at that time. In cross-examination, he stated that “no objection” was not available on the loan file pertaining to Malkiat Singh. He also stated that an order had been received from the Head Office at Chandigarh for recovery of the loan on account of non-utilization of the second instalment. The witness corrected himself to state that the whole of the amount of the loan disbursed was sought to be recovered on account of its non-utilization. DW-2 Rasal Singh, who was the Director of the Bank in July 1994, deposed that Malkiat Singh had taken loan from the bank. In June 1994, when the witness was sitting in the office of the bank, three/four persons came there and enquired about the Manager, who at that time was Criminal Appeal No. 689-SB of 1995 -9- out of station being on leave. They told him that Malkiat Singh had obtained loan but had not utilized the same for the purpose for which it was taken. After 2/3 days, the witness contacted the appellant on telephone and apprised him of the complaint and further directed him to disburse the remaining amount of loan to Malkiat Singh after making verification with regard to the construction of the shed. DW-4 Mohan Lal, Deputy Registrar (Vigilance), State Agricultural Development Bank, Chandigarh testified that a complaint was received from some one against Malkiat Singh that he had misused the loan taken by him from the Bank. The total amount sanctioned was Rs.90,000/- and an amount of Rs.24,000/- had been disbursed. An enquiry was conducted. As per the enquiry report, the loanee had mis-used the amount by not constructing the cattle shed. On the basis of the enquiry report, a letter was written that recovery of Rs.24,000/- in lump-sum be effected. Action was also initiated on the basis of the enquiry report against the Land Evaluation Officer for making wrong report about utilization of the loan as on the basis his report, the second instalment of the loan had been issued. As is clear from the above, the second instalment of the loan amounting to Rs.10,000/- was duly sanctioned in favour of the complainant by the appellant. However, before the second instalment could be released, a complaint was received by the authorities about the non-utilization of the first instalment by the complainant. In such a situation, the appellant was justified in not releasing the second instalment of the loan till the time he made personal verification as directed by the Director of the Bank. It has also come in evidence that during the days when the appellant was to release the second instalment, he was busy in effecting recoveries in the Criminal Appeal No. 689-SB of 1995 -10- area and therefore, had no time to conduct personal verification regarding utilization of the first instalment of loan by Malkiat Singh. This appeared to have offended Malkiat Singh, who wanted the disbursement of second instalment of the loan amount to him. From the testimonies of PW-1 Daljit Singh PW-3 Kewal Singh, who were associated by the prosecution as shadow witness and recovery witness, respectively, it does not stand established that the appellant had made demand for illegal gratification from complainant Malkiat Singh. On the other hand, they stated that it was complainant Malkiat Singh, who was trying to forcibly thrust the money in the pocket of the appellant. Both these witnesses were declared hostile but even during their cross-examination, no material could be brought on record by the prosecution that there was any demand made by the appellant for illegal gratification or such an illegal gratification was received by him. In view of the above, it would not be safe to sustain the conviction of the appellant for the offences under Sections 7 and 13 (2) of the Prevention of Corruption Act. Resultantly, the appeal is accepted, the impugned judgment of conviction and sentence is set aside and the appellant is acquitted of the charges against him. The appellant is on bail. His bail bonds shall stand discharged. The amount of fine be refunded to him. January 07, 2010 (T.P.S.MANN) Pds JUDGE Whether to be referred to Reporter: Yes/No