IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 224 of 2009 Date of decision: 8.9.2011 Jagjit Lal Sharma …..Appellant Versus State of H.P. ….Respondent Coram: The Hon’ble Mr. Justice Deepak Gupta, J. Whether approved for reporting? For the appellant: Mr. G.R. Palsra, Advocate. For the respondent: Mr. Vivek Singh Thakur, Additional Advocate General. _____________________________________________________ Deepak Gupta, J(oral) 1. This appeal by the appellant Jagjit Lal Sharma is directed against the judgment of the learned Special Judge, Una dated 27.7.2009, whereby the accused was convicted of having committed offences punishable under Section 7 read with Section 13(2) of the Prevention of Corruption Act and sentenced to undergo imprisonment of two years and to pay a fine of Rs.5,000/- and in default of payment of fine to further imprisonment of three months. 2. The undisputed facts of the case are that the appellant was working as Excise Inspector at the Ajouli 2 Barrier in District Una. The admitted case of the parties and which case has also been proved by the statements of the parties is that the Excise Authorities stop the trucks and other vehicles in which the goods are being carried and verify whether the tax has been paid on the goods or not. In case, the Excise Authorities at the Barrier are of the opinion that the proper tax has not been paid and that the goods have been under valued for the purpose of taxation, the concerned goods are detained and detention orders are issued and the GRs alongwith goods are retained at the Barrier. In the statement of one of the witnesses, it has also come that sometimes the Transport Company is permitted to carry the goods, but they are specifically told that the goods may not be delivered to the trader unless the documents are released after satisfying the barrier incharge. However, the general practice appears to be that the goods receipts alongwith goods are detained and the detention orders qua these are issued. 3. The prosecution case is that Rakshvir Singh PW-8 was looking after the work of Bharat Motors Transport Company, Una, which used to bring the goods of various businessmen in District Una. On 7.7.2003 some of the goods being carried in the trucks of Bharat Motors Transport Company were unloaded at the Barrier and detained due to under billing. According to the prosecution, Rakshvir Singh alongwith PW-10 Karnail Singh went to the Barrier and talked to the accused and requested him to release the detained 3 goods. It is alleged that the accused demanded a sum of Rs.10,000/-, but finally the deal was struck at Rs.5000/-. Thereafter, Rakshvir Singh went to Una and narrated these facts to the concerned businessmen to whom the articles belonged and which were detained at the Barrier. These businessmen refused to pay the amount of Rs.5,000/-. Therefore, Rakshvir Singh went to the police station and lodged a report with the Anti Corruption Zone at about 4.00 – 4.15 PM. FIR Ext. PW-8/A was duly lodged. Thereafter, PW-16, Rameshwar Dass, Naib Tehsildar, was associated and called to the police station. PW-8 Rakshvir Singh was asked to hand over Rs.5,000/- and he accordingly gave 10 currency notes in the denomination of Rs.500/- each to the police in the presence of PW-16, who noted down the numbers of the currency notes vide memo Ext.PW-8/B. Thereafter, the police officials gave a demonstration of the use of Phenolphthalein powder to Rakshvir Singh and when the two solutions, one containing Phenolphthalein powder and the other containing Sodium Carbonate were mixed, the colour of the solution turned pink. Thereafter the currency notes handed over by Rakshvir Singh were also treated with Phenolphthalein powder and these notes were put in the pocket of Rakshvir Singh. He was told not to handle the same and asked to hand over the same to the accused when demand of bribe was made by him. 4 4. Thereafter Rakshvir Singh alongwith Karnail Singh went to the Barrier. They reached the Barrier at about 6.00-6.15 PM. PW-8 again asked the accused to reduce the amount of penalty and at that stage the accused told him that some penalty will have to be paid and some amount he would keep without issuing receipt and he demanded Rs.5,000/-. Rakshvir Singh prayed that lesser amount be taken and finally the deal was struck at Rs.4,000/-. Thereafter, the accused issued four receipts vide Ext.PW-8/C to Ext.PW-8/F for Rs.2,300/- and Rs.4,000/- was paid to him. The GRs and other documents Ext.PW-8/G-1 to Ext.PW-8/G-15 were thereafter returned to Rakshvir Singh. Karnail Singh came outside and gave a signal to the police who entered the room alongwith Naib Tehsildar. The police caught hold of the accused. 5. Chhaju Ram PW-11, who is a shopkeeper, was called. The hands of the accused were got washed and when the hand wash was treated with Sodium Carbonate powder it turned light pinkish. The accused on the asking of the police took out the money from his pocket and handed over to the police and the numbers were tallied and found to be the same as mentioned in memo Ext.PW-8/B. Thereafter the currency notes were sealed in an envelope. The police also asked Rakshvir Singh about the remaining amount of Rs.1,000/- which he took out and handed over to the police, for which memo Ext. PW-8/L was prepared and on the basis of this 5 material, the accused was challaned and charged with having committed the offences aforesaid. After trial, he has been convicted. Hence, this appeal by the accused. 6. I have heard Shri G.R. Palsra, learned counsel for the appellant and Shri Vivek Singh Thakur, learned Additional Advocate General on behalf of the State. 7. At the outset, it may be stated that the appellant does not deny that Rs.4,000/- was recovered from him. The case set up by the appellant is that this amount was not received as bribe, but was the amount of penalty calculated on account of under valuation of the goods. The case set up by the accused, both in the cross-examination to the witnesses of the State as well as in his statement recorded under Section 313 Cr.P.C., is that he had calculated the penalty at Rs.4,000/- and had issued four receipts for Rs.2,300/- and was in the process of issuing the last receipt for a sum of Rs.1,700/-, when the police immediately came inside and he was arrested and not allowed to issue the last receipt. Therefore, it is only this aspect of the matter which requires the attention of the Court. It stands proved on record that in addition to the GRs on account of which four receipts were issued various other goods were being transported by Bharat Motors Transport Company which had been detained and there is sufficient material on record to show that the other goods being transported were detained and detention orders with regard to these goods have been 6 placed on record and form part of the record. It is thus, apparent that in addition to the goods which were released vide four receipts, there were other goods which were being carried by Bharat Motors Transport Company which had been detained at the Barrier and at least one of these GRs relates, is of the same date. 8. All the witnesses, including Naib Tehsildar, Chhaju Ram as well as the police officials, have admitted that when they went in and caught hold of the accused, he was protesting that he should be allowed to finish his work and he has still to issue one receipt and they may permit him to issue that receipt. 9. The law is well settled that when an accused sets up a defence it is not necessary for him to prove his defence beyond reasonable doubt. He only has to show that there is preponderance of probability in the case set up by him. In this behalf reference may be made to the judgment of the Apex Court in C.M. Girish Babu vs. CBI, Cochin, High Court of Kerala, 2009(2) Criminal Court Cases 620 (S.C). 10. Admittedly, the penalty is to be paid by the person to whom the goods belonged. This penalty is not to be paid by the transporter. The question arises as to what was the role of Rakshvir Singh PW-8. According to him, he was helping the businessman to improve the goodwill of his Company. This does not appear to be correct because he himself states that the businessman had refused to pay any 7 amount by way of penalty or bribe. If that was true, then why did Rakshvir Singh offer to pay Rs.4,000/- to the appellant. There is virtually no explanation as far as this aspect of the case is concerned. Admittedly, the goods did not belong to Rakshvir Singh PW-8 and at best he was representing the owners of the goods. He would have paid the bribe or the penalty on behalf of the owners and only they would have authorized him to do so. He in his statement has stated that the owners had not agreed to pay any amount. It is thus apparent that Rakshvir Singh PW-8 may have acted like a commission agent on behalf of the owner. The chance of an inconvenient offer being framed by such an individual cannot be totally ruled out. 11. Pritam Patial PW-9 is the Investigating Officer and according to him after demonstration of Phenolphthalein powder the complainant was asked to hand over the currency notes to the appellant only on demand and without shaking hands with the appellant. 12. PW-10 Karnail Singh was directed to accompany PW-8 Rakshvir Singh and listen to the conversation and was also directed to immediately give a signal by raising one hand in the event of the accused accepting the amount more than the amount of receipts issued by him. According to PW-8 Rakshvir Singh the deal was struck at Rs.4,000/- and the appellant issued receipts for Rs.2,300/- and thereafter a sum of Rs.4,000/- was paid to the appellant and then Karnail 8 Singh went outside. The version of Karnail Singh is that the appellant told PW-8 Rakshvir Singh that the penalty would be Rs.2,300/- but the total amount payable was Rs.5,000/-, but finally it was settled for Rs.4,000/-, which was immediately given to the appellant by the complainant Rakshvir Singh. This witness does not say that the payment was made after the receipts had been issued. Therefore, there is contradiction between the version of PW-8 and PW-10. If the amount was paid earlier and Karnail Singh came out immediately to give the signal, the accused would have had no time to issue four receipts. 13. Even Rakshvir Singh in his statement has not denied the suggestion put to him that GRs No. 30151, 31237, 14210 and 11669 were also retained at the Barrier due to under billing. He only states that he does not remember this. PW-10 Karnail Singh has also admitted that at the time when the complaint was registered he was driving the three wheeler of Rakshvir Singh and was employed with him. According to Karnail Singh Rs.2,300/- was calculated as the penalty in respect of three GRs. This version is also different from the version of the prosecution case. According to the prosecution this amount of penalty of Rs.2,300/- was in respect of four GRs. 14. PW-11 Chhaju Ram has not fully supported the prosecution version and has clearly stated that when he entered the room of the appellant, the appellant was 9 protesting and repeatedly saying that he was still in the process of issuing the receipts for the penalty imposed. Thus, it is apparent that at that stage itself the appellant had informed the police that he was in the process of issuing the receipts. If that case was being set up by the accused, it was the duty of the police to have calculated the amount of penalty due on all the GRs relating to Bharat Motors Transport Company and the police should have verified from some other Excise and Taxation officer, who could have calculated what was the penalty imposable on such items. It is not as if this case of issuing receipts has come up for the first time and at the stage of trial. Once a person who has been trapped raises such a plea then fair police investigation demands that his plea should have been investigated by the police. Unfortunately, in the present case no investigation in this behalf has been carried out. 15. In view of the above discussion, it cannot be said with certainty that the plea raised by the accused was totally false. There is a distinct possibility that the appellant was still to issue a receipt for the balance remaining amount. Therefore, I am of the considered view that the prosecution has failed to prove its case beyond reasonable doubt and the learned trial Court had gravely erred in convicting the accused. The appeal is accordingly allowed and the conviction and sentence imposed upon the accused is set 10 aside. The fine, if any deposited, shall be refunded to the appellant. Bail bonds discharged. September 8, 2011 (Deepak Gupta) (vt) Judge