CRA No.731-SB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No.731-SB of 2000 Date of Decision : November 29, 2010 Ashok Kumar .......Appellant Versus State of Haryana .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. H S Gill, Sr. Advocate with Mr. Vivek Goel, Advocate, for the appellant. Mr. Kshitij Sharma, AAG, Haryana. **** JITENDRA CHAUHAN, J. 1. The appellant, namely, Ashok Kumar, has come in appeal against the judgment and order dated 03.08.2000 (hereinafter referred to as ‘impugned judgment’) passed by the learned Special Judge, Kaithal (hereinafter referred to as ‘trial Court’), whereby he has been convicted for the commission of offence punishable under Section 7 and Section 13(1)(d)(ii) read with Section 13(2) of the Prevention of Corruption Act, 1988 (for short as the ‘Act’) and sentenced him to undergo rigorous imprisonment for a period of three years and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo imprisonment for a period of six months under Section 13 of the Act. CRA No.731-SB of 2000 2 He has been further sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.3,000/- and in default of payment of fine, to further undergo rigorous imprisonment for a period of six months for the offence under Section 7 of the Act. However, both the substantive sentences were order to run concurrently. 2. Brief facts of the case in hand are that on 13.6.1995, complainant-Bharat Singh, along with Rameshwar Dass, PW2, met DSP Sagar Singh, State Vigilance Bureau, Karnal, and told him that accused-Ashok Kumar, Patwari, had demanded Rs.4,000/- from him as illegal gratification for correction of khasra girdawari. He had already paid him Rs.5,000/- about 6-7 months ago for the same purpose, but he did not wish to pay the amount again to him. Hence, he moved an application, Ex.PM, before the then Deputy Commissioner, Kaithal, at his residence whereupon permission was granted to conduct the raid and the Tehsildar, Kaithal, was directed to join the raiding party. 3. On 14.6.1995, Bharat Singh, complainant, along with Rameshwar Dass, contacted DSP Sagar Singh at Police Station, State Vigilance Bureau, Karnal and suffered a statement to the effect that he was a resident of Village Goria and was an agriculturist and owns 15 acres of land. Out of the said land, girdawari of land measuring 6 Kanals 3 Marlas was continuing in his name since the year 1959 but since 1986, the girdawari was changed in the name of Dhian Singh etc. It was alleged by the complainant that about 6-7 months back, accused-Ashok Kumar, Patwari, had already received Rs.5000/- as CRA No.731-SB of 2000 3 illegal gratification from him in the presence of one Rameshwar Dass Sharma on account of carrying out correction in the girdawari but the accused was demanding another sum of Rs.4,000/-. On 12.6.1995, when the complainant contacted the accused, the latter reiterated his demand of Rs.4,000/- and called him in the morning of 14.6.1995 in Arjan Nagar, Kaithal on Sirta Road for handing over the money. The complainant produced currency notes worth Rs.4,000/- before the DSP, out of which, four currency notes were of the denomination of Rs.5,00/- each and twenty currency notes were of the denomination of Rs.100/- each. A list of currency notes, Ex.PL, was prepared by the DSP and FIR, Ex.PN, was recorded which was thumb-marked by the complainant. Phenolphthalein powder was applied on the said currency notes and handed back to the complainant. Thereafter, Sh. Mohinder Kumar, Tehsildar, Kaithal, was contacted who checked the currency notes and appended his signatures on the list, Ex.PL. Before proceeding to conduct the raid, the raiding party met the Deputy Commissioner at his residence. 4. The DSP directed the complainant that he should go to the accused and on his demand, hand over the bribe money to him. Rameshwar Dass, shadow witness, was also directed to see and hear the talk between them and then give signal by placing hand on his head. Complainant and the shadow witness left for the fixed place whereas the Tehsildar and the DSP along with other police officials stayed at some distance from there. On receipt of signal from Rameshwar Dass, the members of the raiding party reached at the place of occurrence and currency notes worth Rs.4,000/- were CRA No.731-SB of 2000 4 recovered from the pocket of the pants of the accused. The currency notes were tallied with the list, Ex.PL, which were found in order. A jug of water was taken and sodium carbonate was mixed in the water. Accused was asked to dip his hands in the said solution whereupon its colour became pink. The said water was taken into possession in a nip. Fresh water was again taken and the recovered currency notes were also dipped in the same manner after applying sodium carbonate and the water again turned pink which was taken into possession in a separate nip. Similarly, the pocket of the pants worn by the accused, from which the currency notes were recovered, was also washed in the same manner and the water again turned pink and the same was put in another separate nip. All the three nips were sealed and taken into police possession vide separate memo. All the other articles including recovered currency notes were also taken into police possession. 5. On completion of the investigation, the accused was charge-sheeted for the commission of offence under Sections 7 and 13 (1)(d)(ii) of the Act to which he pleaded not guilty and claimed trial. 6. In order to substantiate its case against the accused, the prosecution examined as many as nine following witnesses:- PW1-Mahabir Singh, Reader to Naib Tehsildar, Guhla, deposed that a petition for seeking correction in khasra girdawari was pending adjudication before the Court of Naib Tehsildar, Ghula. However, in his cross- examination, he admitted that vide order, a copy of which is Ex.DA, accused-Ashok Kumar was transferred from CRA No.731-SB of 2000 5 Halqa Kheri Gulam Ali to Bhuna in place of Patwari-Kala Singh; PW2-SI Mehar Chand is a formal witness. PW3-Rakesh Kumar, Draftsman, prepared the scaled site plan of the place of recovery, Ex.PD, on 14.6.1995. PW4-Krishan Kumar, Clerk of the office of District Collector, Kurukshetra, deposed that accused Ashok Kumar was posted as Patwari, Kheri Gulam Ali, vide order, Ex.PE., and that Village Gora also falls in the same circle. PW5-Rameshwar Dass, did not support the prosecution case and was declared hostile. PW6-Subhash Chand, Reader to District Magistrate, Kaithal, proved the sanction order, Ex.PK, duly signed by Sh. Maha Singh, the then District Magistrate, Kaithal. PW7-Mohinder Kumar, Tehsildar, reiterated the entire prosecution version. PW8-Inspector Karam Singh, who partly investigated the case, proved the statement of Mahabir Singh, complainant recorded on 11.7.1995 and statements of MHC Dalip Singh and Inspector Jai Singh on 15.7.1995 and statement of Krishan Kumar recorded on 25.08.1995. PW9-DSP Sagar Singh (since retired), also reiterated the prosecution version. CRA No.731-SB of 2000 6 7. The accused was examined under Section 313 Cr.P.C. in which all the incriminating circumstances appearing in the prosecution case were put to him which he denied and pleaded false implication. In his defence, the accused examined DW1-Kala Singh, Patwari; DW2-Karam Pal, Patwari; and DW3-Harikesh, Kanungo. 8. After hearing learned counsel for both the parties and considering material/evidence on record, the learned trial Court has convicted and sentenced the appellant for the offence and the term as indicated at the outset of this judgment. 9. Aggrieved against the judgment of conviction and order of sentence, the present appeal is directed by the appellant which was admitted by this Court on 21.08.2000. 10. Learned counsel for the appellant has argued that in the instant case, the demand and acceptance is not proved on record. The complainant could not be examined as he died during the interregnum period. The shadow witness, who appeared as PW5, has not supported the case of the prosecution. His thumb impressions on the documents, Exhibits PG, PH and PJ, were obtained by the Police on blank papers at Panchayat Bhawan. 11. Learned counsel further refers to the transfer order dated 25.5.1995, Ex.DA, of the appellant. He submits that the appellant had handed over the charge of office of Halqa Village Kheri Gulam Ali to one Karam Pal, Patwari, who appeared as DW2. He submits that these documents were issued by the superior authority and, thus, cannot be disbelieved. CRA No.731-SB of 2000 7 12. Learned counsel has further argued that the case regarding correction of khasra girdawari pertaining to the land of the complainant, was pending adjudication before the Court of learned Assistant Collector, Kaithal, therefore, the appellant was not in a position to effect the changes, as alleged. 13. Learned counsel has further argued that a categorical stand has been taken by the appellant that he never demanded any illegal gratification and the tainted money was forcibly inserted in his pocket as the DSP wanted to frame someone for his lapse in not recording the FIR on 13.6.1995, when the application, Ex.PM, was made before him. He has also referred to the statement of DSP Sagar Singh, PW9, who initially stated that the complainant along with Rameshwar Dass, PW5, had come to him in Police Station, Vigilance Bureau, Karnal, on 13.6.1995. However, subsequently, he changed his version in order to suit the same according to the prosecution case to the effect that the complainant and PW5 visited him at Police Station, Vigilance Bureau, Karnal, on 14.6.1995 and the earlier statement was made inadvertently. He did not send any writing on 13.6.1995 to the Police Station for registration of the case. 14. Learned counsel has further referred to the statement of SI Mehar Chand, PW2, who has categorically stated that Exs. PG, PH and PJ, were prepared by DSP Sagar Singh, PW9, in his office, which is against the prescribed procedure. 15. On the other hand, learned counsel for the State has not denied the fact of transfer of the appellant from Halqa Kheri Gulam Ali to Halqa Bhuna, however, he has vehemently argued that there CRA No.731-SB of 2000 8 was no occasion for the prosecution to falsely implicate the appellant in the instant case. 16. I have heard learned counsel for the parties and perused the record with their able assistance. 17. From the statement of PW1-Mahabir Singh, Reader to Naib Tehsildar, Guhla, it is clear that the case titled ‘Bharat Singh V. Dhian Singh’, regarding correction of khasra girdawari was pending in the Court of learned Assistant Collector, Guhla. The alleged bribe was for the correction of the same record. As the case was already pending adjudication before the Court of the learned Assistant Collector, it was not within the control of the appellant to carry out the necessary correction, as alleged. 18. In a case under the Prevention of Corruption Act, the act of demand and acceptance are integral parts. In the instant case, the shadow witness, Rameshwar Dass, PW5, has not supported the prosecution case. The complainant died and could not be examined. 19. Admittedly, the appellant had already been transferred from Halqa Kheri Gulam Ali to Halqa Bhuna, which fact stands proved from the transfer order dated 24.5.1995, Ex.DA. The appellant, when examined under Section 313, Cr.P.C., has categorically stated that he has been falsely implicated in the instant case and he was not having charge of Halqa Kheri Gulam Ali on the date when the raid was conducted. The appellant also examined Kala Singh, DW1, who took over the charge of Halqa Kheri Gulam Ali on transfer of the appellant to Halqa Bhuna. CRA No.731-SB of 2000 9 20. Hon’ble the Apex Court, in C.M. Girish Babu Vs. CBI Cochin, High Court of Kerala, 2009(2) R.C.R. (Criminal) 134, has observed as under:- “16. In Suraj Mal Vs. State (Delhi Admn.) reported in [(1979) 4 SCC 725], this court took the view that mere recovery of tainted money divorced from the circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show the accused voluntarily accepted the money knowing it to be bribe. 17. The learned counsel for the CBI submitted that the onus of proof was upon the appellant to explain as to how he came into possession of the amount recovered from him during the trap. The argument of the learned counsel is obviously based on Section 20 of the Prevention of Corruption Act, 1988 which reads as under: "20. Presumption where public servant accepts gratification other than legal remuneration.- (1) Where, in any trial of an offence punishable under Section 7 of Section 11 or clause (a) or clause (b) of sub-section (1) of Section 13 it is proved that an accused person has CRA No.731-SB of 2000 10 accepted or obtained or has agreed to accept or attempted to obtain for himself, or for any other person, or any gratification (other than legal remuneration) any valuable thing from any person, it shall be presumed, unless the contrary is proved, that he accepted or obtained or agreed to accept or attempted to obtain that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in section 7 or, as the case may be, without consideration or for a consideration which he knows to be inadequate. (2) Where in any trial of an offence punishable under Section 12 or under clause (b) of section 14, it is proved that any gratification (other than legal remuneration) or any valuable thing has been given or offered to be given or attempted to be given by an accused person, it shall be presumed, unless the contrary is proved, that he gave or offered to give or attempted to give that gratification or that valuable thing, as the case may be, as a motive or reward such as is mentioned in Section 7, or as the case may be without consideration or for a consideration which he knows to be inadequate. (3) Notwithstanding anything contained in sub- sections (1) (2), the court may decline to draw the CRA No.731-SB of 2000 11 presumption referred to in either of the said sub- sections, if the gratification or thing aforesaid is, in its opinion, so trivial that no interference of corruption may fairly be drawn." 18. A three-Judge Bench in M. Narsinga Rao Vs. State of A.P. (2001) 1 SCC 691 while dealing with the contention that it is not enough that some currency notes were handed over to the public servant to make it acceptance of gratification and prosecution has a further duty to prove that what was paid amounted to gratification, observed: "........................we think it is not necessary to deal with the matter in detail because in a recent decision rendered by us the said aspect has been dealt with at length. (Vide Madhukar Bhaskarrao Joshi v. State of Maharashtra.) The following statement made by us in the said decision would be the answer to the aforesaid contention raised by the learned counsel: (SCC p.577, para 12) The premise to be established on the facts for drawing the presumption is that there was payment or acceptance of gratification. Once the said premise is established the inference to be drawn is that the said gratification was accepted `as motive or reward' for doing or forbearing to do any official act. So the word `gratification' need not CRA No.731-SB of 2000 12 be stretched to mean reward because reward is the outcome of the presumption which the court has to draw on the factual premise that there was payment of gratification. This will again be fortified by looking at the collocation of two expressions adjacent to each other like `gratification or any valuable thing'. If acceptance of any valuable thing can help to draw the presumption that it was accepted as motive or reward for doing or forbearing to do an official act, the word `gratification' must be treated in the context to mean any payment for giving satisfaction to the public servant who received it." 19. xxx xxx xxx xxx xxx 20. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt. "It is well established that where the burden of an issue lies upon the accused he is not required to discharge that burden by leading evidence of proof his case beyond a reasonable doubt. That is, of course, the test prescribed in deciding whether the prosecution has discharged its onus to prove the guilt of the accused; but the same test CRA No.731-SB of 2000 13 cannot be applied to an accused person who seeks to discharge the burden placed upon him under Section 4 under the Prevention of Corruption Act. It is sufficient if the accused person succeeds in proving a preponderance of probability in favour of his case. It is not necessary for the accused person to prove his case beyond a reasonable doubt or in default to incur verdict of guilt. The onus of proof lying upon the accused person is to prove his case by a preponderance of probability. As soon as he succeeds in doing so, the burden shifts to prosecution which still has to discharge its original onus that never shifts, i.e.; that of establishing on the whole case the guilt of the accused beyond a reasonable doubt." (See Jhangan Vs. State 1966 (3) SCR 736). (Emphasis supplied) 21. It is against this background of principles we have examined the contention of the appellant that the charges under Section 7 of the Act have not been proved against him. It was argued by Shri U. U. Lalit, Senior counsel, that the circumstances found by the High Court in their totality do not establish that the appellant accepted the amount of Rs.1500/- as gratification. Having examined the findings of both the Courts, we are satisfied that the appellant has proved his case by the test of preponderance of probability and we accordingly reach the conclusion that the amount was not taken by the CRA No.731-SB of 2000 14 appellant as gratification. He was made to believe that amount paid to him was towards the repayment of loan taken by PW2 from Accused no. 1. 22. The prosecution failed in establishing the guilt of the accused beyond reasonable doubt that the appellant received any gratification. 23. For the aforesaid reasons, we find it difficult to sustain the conviction of the appellant under Section 7 of the said Act. Accordingly, the conviction of the appellant and the sentence imposed upon him is set aside.” 21. In the instant case, from the transfer of order, Ex.DA, which is an order issued by the State Government and also from the statement of DW1, it is established on record that the appellant was not posted at Village Kheri Gulam Ali at the relevant time. From the record, it is made out that the case pertaining to the correction of khasra girdawari was already pending adjudication before the learned Assistant Collector. The appellant was not in a position to help the complainant; the DSP, in his statement, has admitted that the complainant along with shadow witness, Rameshwar Dass, did not approach him on 13.6.1995, rather they approached him on the next date i.e., 14.6.1995; the movement of the raiding party is not recorded in the Roznamcha; the complainant, due to his death, could not be examined; the shadow witness has not supported the case of the prosecution; and the number of discrepancies noticed by the learned trial Court in para 49 of its judgment, make the case of the prosecution CRA No.731-SB of 2000 15 highly doubtful. Therefore, the prosecution has failed to prove its case beyond reasonable doubt. 22. Resultantly, the present appeal is allowed and the judgment and order dated 03.08.2000 passed by the learned trial Court is hereby set aside. The appellant was granted bail by this Court. His bail bonds shall stand discharged. ( JITENDRA CHAUHAN ) 29.11.2010 JUDGE atulsethi Note: Whether to be referred to reporter ? Yes/No