Criminal Appeal No. 171-SB of 1995 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 171-SB of 1995 Date of Decision: 24.12.2008 Subhash Chander s/o Hans Raj s/o Gurditta Mal Employee of P.S.E.B. R/o Bathinda. ... Appellant Versus The State of Punjab ...Respondent CORAM: HON'BLE MR. JUSTICE SHAM SUNDER Present: Mr. S.S. Narula, Advocate for the appellant. Mr. T.S. Salana, D.A.G., Punjab for the respondent. SHAM SUNDER, J. This appeal is directed against the judgment of conviction, and the order of sentence, dated 15.03.1995, rendered by the Court of Special Judge, Bathinda, vide which it convicted the accused (now appellant), for the offence punishable under Section 13(2) of the Prevention of Corruption Act, 1988 (hereinafter to be called as the Act only) and sentenced him to undergo rigorous imprisonment for a period of 04 years and to pay a fine of RS. 2000/-, and in default, to undergo rigorous imprisonment for a period of three months. 2. The facts, in brief, are that Harmit Singh, complainant, at the relevant time, was running a shop of gold-smith at Bathinda. He came to the Criminal Appeal No. 171-SB of 1995 2 Vigilance Office at Bathinda on 19.07.1989, alongwith Gurjant Singh, and stated that about three days prior to that date, Subash Chander, Junior Engineer, Cantt. Sub Division, Punjab State Electricity Board, Bathinda, came to him and pointed out the fact that the seal of the electric meter, installed in his shop, was lying broken. He, however, showed his ignorance, about the same. He met Subash Chander, Junior Engineer, for re-sealing the meter, in his office, and told him that he would move an application, in that regard. The accused, however, told the complainant that, in case, he moved an application for re-sealing the meter, he would be liable to pay a fine of Rs. 4000/-. Subash Chander further told him that, in case, he paid a sum of Rs. 500/-, to him, he would re-seal the said meter. The complainant requested Subash Chander to re-seal the meter, without obtaining any bribe, but he did not relent. However, Harmit Singh, did not want to pay the gratification, other than legal remuneration, to the accused for the purpose aforesaid. He further stated that Subash Chander, accused, was to come to his shop on that date i.e. 19.07.1989, to get the amount of Rs. 500/-, as gratification other than legal remuneration. 3. Statement exhibit PC of Harmit Singh, containing the aforesaid facts was recorded, which was read-over and explained to him, and after admitting the same to be correct, he signed the same, which was attested by Satya Swaroop, Inspector, Vigilance Bureau, Bathinda. 4. After recording the statement of Harmit Singh, complainant, Satya Swaroop, Inspector, Vigilance Bureau, Bathinda, obtained a sum of Rs. 500/-, from him, and treated the same with phenol-pathelein powder. The numbers of the currency notes of Rs. 500/- of the denomination of Rs. 100/-, each, were noted down, in exhibit PD memo. The Vigilance Criminal Appeal No. 171-SB of 1995 3 Inspector then assured that nothing was left with Harmit Singh. After treating the currency notes aforesaid with phenol-pathelein powder, the same were handed over to him, with a direction to hand over the same to the accused, on demand. Gurjant Singh, prosecution witness, was directed to act as a shadow witness, accompany Harmit Singh, complainant, hear the exchange of talk between him and the accused, and, on receipt of the tainted currency notes by him (accused), give a signal to the waiting raiding party, after putting his hand over his head. The statement PC of Harmit Singh, complainant, was sent to the Police Station, on the basis whereof, FIR PC/2 was registered. Prem Singh, Junior Engineer, was joined as a witness, in the raiding party, which was constituted by Satya Swaroop, Inspector, Vigilance Bureau, Bathinda. He was introduced to Harmit Singh and Gurjant Singh and other prosecution witnesses. After reaching near Man Petrol Pump, as per the chalked-out programme, Harmit Singh was directed to go to his shop with Gurjant Singh. Harmit Singh and Gurjant Singh, then went to the shop aforesaid. The remaining members of the raiding party, stood at some distance, by concealing their presence. Subash Chander, accused, came to the shop of Harmit Singh. The accused, however, did not come to the shop of Harmit Singh. Subash Chander, accused, sent a message to Harmit Singh that he was at the shop of Guru Nanak Engineering Works. Harmit Singh then went to the Guru Nanak Engineering Works. Gurjant Singh went to the members of the raiding party to apprise them about the aforesaid factum. He thereafter also came to the Guru Nanak Engineering Works. On demand Harmit Singh handed over the tainted currency notes of Rs. 500/- to Subash Chander, accused, who put the same in the front pocket of his shirt. Gurjant Singh, then gave the pre-arranged signal to the raiding party. The members Criminal Appeal No. 171-SB of 1995 4 of the raiding party then reached the spot. Inspector Satya Swaroop then disclosed his identity to the accused, and told him not to move. After arranging some water in a glass tumbler with which sodium carbonate was mixed, in the first instance, the fingers of the hands of Prem Singh, Junior Engineer, were got dipped therein, as a result whereof, the colour thereof, did not change. Thereafter, the fingers of both the hands of Subash Chander, Junior Engineer, accused, were got dipped in the said solution, as a result whereof, the same turned into light pinkish. That solution was put into a nip P1, which was sealed with the seal bearing impression SS and taken into possession vide exhibit PE, attested by the witnesses. Thereafter, Satya Swaroop, Inspector Vigilance Bureau, Bathinda, got the search of his person effected, from the prosecution witnesses, and nothing was recovered therefrom. Thereafter, Satya Swaroop, Inspector Vigilance Bureau, Bathinda, effected the search of the person of Subash Chander, accused. Tainted currency notes of Rs. 500/-, were recovered from the front pocket of the shirt worn by him. The numbers of those currency notes (P2 to P6) were got compared with the numbers, already recorded in PD, through Prem Singh, Junior Engineer, and the same tallied, which were taken into possession vide memo PE, attested by the witnesses. The personal search of the accused was conducted and a sum of Rs. 1065/- from the pocket of the pant worn by him, identity card, pen/pencil and wrist watch were recovered, which were taken into possession vide memo PH, attested by the witnesses. Thereafter, the shirt being worn by the accused, was got removed. The front pocket of the said shirt, was reversed, and the same was dipped into a freshly prepared solution, in the aforesaid manner, as a result whereof, the colour thereof, turned into light pinkish. The solution was then put into a Criminal Appeal No. 171-SB of 1995 5 separate nip P8, sealed with the seal, bearing impression SS, and taken into possession vide memo PG, attested by the witnesses. The scooter of the accused was standing in front of Guru Nanak Engineering Works. From the dicky of the scooter, a bag containing the material for affixing the seals and the seals were recovered. The bag containing the aforesaid material, registration certificate, driving licence of the accused, two affidavits, regarding the purchase of scooter, which were also recovered therefrom, were taken into possession vide memo PJ, attested by the witnesses. Thereafter, Satya Swaroop, Vigilance Inspector, went to the shop of Harmit Singh and checked the electric meter. He found the seal underneath the meter lying broken. Exhibit PK, checking memo was prepared, which was attested by the witnesses. Site-plan PO of the place of recovery was prepared. The accused was arrested. The statements of witnesses were recorded. After the completion of investigation and receipt of sanction PM, for launching prosecution, against the accused, the challan was presented. 5. On his appearance, in the Court, the accused was supplied the copies of documents, relied upon by the prosecution. Charge under Section 13(2) of the Act, was framed against him, to which he pleaded not guilty, and claimed judicial trial. 6. The prosecution, in support of its case, examined. Harmit Singh, complainant (PW1), Gurjant Singh, shadow witness (PW2), Prem Singh, a witness to the recovery (PW3), Satya Swaroop (Retd.) DSP (at the relevant time Inspector, Vigilance Bureau, Bathinda) (PW4) and Amarjit Singh, UDC, Punjab State Electricity Board, City Branch, Bathinda (PW5). Thereafter, the Additional Public Prosecutor for the State, closed the prosecution evidence. Criminal Appeal No. 171-SB of 1995 6 7. The statement of the accused under Section 313 Cr.P.C., was recorded. He was put all the incriminating circumstances, appearing against him, in the prosecution evidence. It was admitted by him, that he was posted as Junior Engineer, Punjab State Electricity Board, Bathinda, at the relevant time. It was stated by him, that the sanction, accorded against him, was invalid. It was further stated by him that he neither demanded any illegal gratification, from Harmit Singh, nor had received such illegal gratification from him. It was further stated by him, that he had no power to re-seal any single phase meter. It was further stated by him that no re-sealing was possible without the order of the Sub Divisional Officer, Punjab State Electricity Board. It was further stated by him that the seals were supposed to be affixed, with the help of plier, which bore the seal impression with specific numerical words. It was further stated by him, that affixing of seals, on the meter, was only the prerogative of Junior Engineer II, Kirpal Singh. It was further stated by him that the Sub Divisional Officer, vide order dated 14.07.1989, had ordered him to check, on the basis of the complaint, made by one Gurbachan Singh, the premises of Mohar Guru Nanak Engineering Works. It was further stated by him that on 15.07.1989, he had gone for checking the premises of Mohar Guru Nanak Engineering Works. He further stated that he had advised that the electric equipment of the said premises, was creating fluctuations, in the current and, as such, necessary repairs, should be carried out. He also stated that he told the proprietor of the concern, that he would be checking again the premises on 19.07.1989. It was further stated by him that he had been falsely implicated, as the consumers of electricity were not happy with the checking staff. It was further stated by him, that several aggrieved persons, due to the checking, Criminal Appeal No. 171-SB of 1995 7 made complaints, before the Vigilance Department and, as such, he was involved, in this case, on wrong facts. It was further stated by him, that he was falsely implicated, in the instant case. He also examined Heera Singh, Head Constable (DW1), in his defence. Thereafter, he closed his defence evidence. 8. After hearing the Counsel for the parties, and, on going through the evidence, on record, the trial Court convicted and sentenced the accused, as stated above. 9. Feeling aggrieved, the instant appeal, was filed by the appellant. 10. It is pertinent to mention here that, before hearing the arguments in appeal, when the record was checked, it was found that the english version of the evidence of Prem Singh (PW3), Satya Swaroop (PW4), Amarjit Singh (PW5) and Heera Singh (DW1), was not on the trial Court record. The report of the District & Sessions Judge, Bathinda, was obtained, in that regard. Ultimately, the District & Sessions Judge, Bathinda, reported, vide memo No. 1767/E.I., dated 21.11.08, that on preliminary enquiry, it was found that english version of the evidence of the witnesses namely Prem Singh (PW3), Satya Swaroop (PW4), Amarjit Singh (PW5) and Heera Singh (DW1), was not recorded, by the Court concerned. However, the vernacular (Punjabi) version of these witnesses, was found available on the trial Court record. 11. I have heard the Counsel for the parties, and have gone through the evidence and record of the case, carefully. 12. The Counsel for the appellant, at the very outset, submitted that though the evidence produced by the prosecution, was completely Criminal Appeal No. 171-SB of 1995 8 unreliable, and even no corroboration to the statement of Harmit Singh, PW1, was furnished, through any other source, yet the trial Court, fell into an error, in recording conviction and awarding sentence to the accused. There is, no dispute, about the factum, that Subash Chander, accused, at the relevant time was the Junior Engineer of Punjab State Electricity Board Cantt. Sub Division, Bathinda, and, as such, a public servant. Harmit Singh, complainant, when appeared as PW1, in clear-cut terms, stated that he was running his shop near Sepal Hotel, Bathinda, wherein, the electric meter was installed. It was further stated by him, that the seal of the meter was earlier broken by the Department. It was further stated by him that Subash Chander, accused, came to inspect the said meter, two/three days prior to the incident (19.07.1989). He told Harmit Singh that, in case, he filed any application regarding the broken seal of the meter before the Department, then he would be fined a sum of Rs. 5000/-. He told him that, in case, he paid a sum of Rs. 500/-, as gratification, other than legal remuneration, to him, then he (complainant) would be saved of the fine of Rs. 5000/- aforesaid. Harmit Singh, though, at the stage, agreed to pay the said amount, as gratification, other than legal remuneration. However, he consulted Gurjant Singh, his friend, who did not advise him to pay the said amount, as gratification, other than legal remuneration to Subash Chander. His evidence is further to the effect, that he alongwith Gurjant Singh, went to the Office of the Vigilance Bureau, Bathinda, and narrated the whole story, before Satya Swaroop, Inspector Vigilance Bureau, Bathinda. He further stated that he also told the Inspector concerned that the accused would come to his shop on 19.07.1989, for obtaining the amount of gratification, other than legal remuneration. It was further stated by him that his statement Ex. Criminal Appeal No. 171-SB of 1995 9 PC, was recorded by the Inspector concerned. He handed over a sum of Rs. 500/-, to the Inspector, which was treated with phenol-pathelein powder. Thereafter, the amount of Rs. 500/-, was entrusted to him. He further stated that the numbers of those currency notes of the denomination of Rs. 100/- each, were noted down in PD, a memo. His evidence is further to the effect that, thereafter, a raiding party was constituted, consisting of him, Gurjant Singh, shadow witness, Prem Singh, Junior Engineer and other officials of the Vigilance Department. It was further stated by him, that, thereafter, he and Gurjant Singh, were instructed to go to the accused. He was further instructed that on demand, he would pay the aforesaid currency notes to Subash Chander. Gurjant Singh, was directed to give the requisite signal after the receipt of the amount. He further stated that the Police party stopped near SSD Girls College, whereas, he went to his shop alongwith Gurjant Singh. It was further stated by him that he came to know that Subash Chander, was present at Guru Nanak Engineering Works. Thereafter, he went to Guru Nanak Engineering Works, and Gurjant Singh, went to inform the other members of the Vigilance Department. Gurjant Singh, then reached Guru Nanak Engineering Works. He further stated that the accused demanded the gratification, other than legal remuneration in the sum of Rs. 500/-. On his demand, he gave the tainted currency notes, to him, and he put the same, in the front pocket of the shirt, worn by him. It was further stated by him, that, on receipt of the signal, from Gurjant Singh, the Police party, reached there. Inspector Satya Swaroop, disclosed his identity to the accused. It was further stated by him, that thereafter a jug containing water was fetched, wherein, sodium carbonate was mixed, as a result whereof, the colour of the solution, did not change. Thereafter, the fingers Criminal Appeal No. 171-SB of 1995 10 of the hands of Prem Singh, Junior Engineer, prosecution witness, were got dipped therein, as a result whereof, the colour thereof, did not change. Thereafter, the fingers of the hands of the accused, were got dipped therein, as a result whereof, the colour thereof, turned into light pinkish. The solution was put into nip P1, and a signatory chit was affixed thereon. The nip was taken into possession. It was further stated by him that thereafter the search of the accused was conducted, as a result whereof, five tainted currency notes (P2 to P6) of the denomination of Rs. 100/- each, were recovered, from the front pocket of the shirt worn by him. The shirt of the accused was got removed and the front pocket thereof, was reversed. A solution was freshly prepared in the aforesaid manner, and the pocket, so reversed, was dipped into the same, as a result whereof, the colour thereof, changed into light pinkish. The same was put into a nip. The nip and the shirt were converted into parcels and taken into possession. He further stated that on personal search of the accused, a sum of Rs. 1065. 45/- paise, one identity card, one fountain pen, keys and one diary were recovered therefrom. The same were taken into possession vide memo PH. The scooter of the accused, which was standing, in front of Guru Nanak Engineering Works, was also taken into possession vide memo PJ, alongwith driving licence and other material referred to above. This witness was thoroughly cross-examined, but he stood the test of touchstone of all probabilities, during the course of his cross-examination. The statement of Harmit Singh, PW1, was duly corroborated, through the statements of Prem Singh, Junior Engineer (PW3) and Satya Swaroop (Retd.) DSP (PW4). Further corroboration to the statement of Harmit Singh, was furnished, through the factum of recovery of tainted currency notes from the pocket of the shirt of Criminal Appeal No. 171-SB of 1995 11 the accused; change of the colour of solution into light pinkish when the fingers of his hands were got dipped therein; and change of the colour of freshly prepared solution into light pinkish, when the reversed front pocket of the shirt of the accused, was dipped therein. No doubt, Gurjant Singh, PW2, the shadow witness, corroborated the statement of Harmit Singh, to some extent, though he was declared hostile, and was cross-examined by the Public Prosecutor for the State. The effect of the evidence of such a witness, would be discussed, in the subsequent paragraphs. It is not necessary that the ocular evidence of the complainant, with regard to the demand and acceptance of gratification other than legal remuneration should only be corroborated, through the ocular evidence of the other witnesses. It was for the accused to furnish an explanation, as to how the tainted currency notes, were found in the pocket of his shirt, which were a short while ago with the complainant; how his hand wash and pocket turned into light pinkish. He, however, failed to explain the same. In Roop Singh Vs. State of Punjab AIR 1991 (SC) 1125, it was observed that where the accused was not able to explain the presence of phenolphthalein powder, on his hands, his conviction was legally sustainable. There was also a motive, with the accused, to demand gratification, other than legal remuneration, as according to the statement of Amarjit Singh, UDC, Punjab State Electricity Board (PW5), the accused was the incharge of the illaqa, where the shop of the complainant, was situated, at the relevant time. The trial Court was, thus, right in holding that from the evidence, on record, it was proved that the accused demanded and accepted gratification, other than legal remuneration, from the complainant, as a motive or reward, for showing him favour, regarding re-sealing of his meter, the seal whereof, had got broken. Criminal Appeal No. 171-SB of 1995 12 The trial Court, was, thus, right in recording conviction and awarding sentence to the accused for the offence, punishable under Section 13(2) of the Act. The submission of the Counsel for the appellant, in this regard, being without merit, must fail, and the same stands rejected. 13. It was next submitted by the Counsel for the appellant, that the accused had no capacity of re-sealing the seal of the meter, which had already got broken. He further submitted that, as per the circular letters, it was the duty of Junior Engineer II of the Punjab State Electricity Board. He further submitted that since the accused had no capacity to do the job, there was no question of his demanding gratification, other than legal remuneration from the complainant. From the statement of Gurjant Singh, it was proved that the accused was incharge of the area, where the shop of the complainant, was situated. The mere fact that it was the duty of Junior Engineer II, to re-seal the meter, the seal whereof, had already got broken, did not mean that the accused did not demand or accept gratification, other than legal remuneration, as a motive or reward from Harmit Singh. In Mahesh Parshad Vs. State, 1955, S.C.J., 153, the Apex Court, held that a public servant, who receives illegal gratification, as a motive, for doing or procuring an official act, would be guilty under Section 161 of the Indian Penal Code (now repealed) and substituted by Section 7 of the Prevention of Corruption Act, 1988, whether, he was capable of doing it, or whether or not he intended to do it. Section 161 IPC (since repealed), now Section 7 of the Prevention of Corruption Act, 1988, does not require that the public servant should be competent to do an official act. In State of Punjab Vs. Raj Kumar, AIR 1988 (SC) 805, it was held that if bribe is taken and given as a motive or reward, for doing or fore bearing to do an official act, the Criminal Appeal No. 171-SB of 1995 13 offence is complete, whether the public servant has the requisite capacity to do it, or not. The principle of law, laid down, in the aforesaid authorities, is fully applicable to the facts of the instant case. No doubt, during the course of the cross-examination, Amarjit Singh, UDC, Punjab State Electricity Board (PW5), stated that four Junior Engineers II, had been deputed, for sealing the single phase meters, in Cantt. Sub Division, and Kirpal Singh, Junior Engineer II, was incharge for doing this job. However, in his examination-in-chief, it was stated by him that the entire area fell, within the jurisdiction of Subash Chander, Junior Engineer I. Even if, the statement of Amarjit Singh, made by him in his cross-examination is assumed to be correct, the accused could not absolve himself of the criminal liability, for the offence under Section 13(2) of the Act. In view of the principle of law, laid down, in the aforesaid authorities, by the Apex Court, the submission of the Counsel for the appellant, being without merit, must fail and the same stands rejected. 14. The Counsel for the appellant, however, placed reliance on Jamana Dass Vs. The State of Haryana, 1984(2), CLR, 85, in support of his contention, that the mere fact that a person takes money, in order to get another person a job, somewhere, would not by itself, necessarily be an offence, under Section 161 of the Indian Penal Code. The facts of the aforesaid authority, are clearly distinguishable, from the facts of the instant case. In view of the principle of law, laid down, in Mahesh Parshad and State of Punjab's cases (supra), decided by the Apex Court, on the same point, any principle of law, laid down, to the contrary, in Jamana Dass's case (supra),would not hold the field. In this view of the matter, no help, can be drawn by the Counsel for the appellant, from Jamana Dass's case Criminal