IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. S-296-SB of 2007 Date of Decision : November 11, 2010 Ajay Kumar ....Appellant Versus State of Punjab .....Respondent CORAM :HON'BLE MR. JUSTICE T.P.S. MANN Present : Mr. Akshay Bhan, Advocate Mr. P.S. Sidhu, Addl. Advocate General, Punjab T.P.S. MANN, J. Vide judgment and order dated 22.1.2007, learned Special Judge, Patiala convicted the appellant under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as 'the Act') and sentenced him to undergo rigorous imprisonment for three years and to pay a fine of Rs.3,000/- and in default of payment of fine, to further undergo rigorous imprisonment for two months. He was also convicted under Section 13(2) of the Act and sentenced to undergo similar term of sentence of imprisonment and fine alongwith its default clause. Both the sentences were ordered to run concurrently. According to the prosecution, on 22.5.2000 complainant-Kartar Singh submitted affidavit to Senior Criminal Appeal No. S-296-SB of 2007 -2- Superintendent of Police, Patiala in which he mentioned that he was owner of M/s Swaran Filling Station of I.B.P., situated at village Bakshiwala, Police Station Sadar, Patiala. Some time back, some police officials in civil dress came to take petrol but refused to make the payment. However, his employees did not allow the said officials to go without making the payment. Ultimately, the police officials relented and made the payment. The police officials threatened that they would take revenge by giving befitting reply. On 16.1.2000 at 7.30 a.m., an empty oil tanker No. PB-02-9855 was standing near the shop adjoining to his petrol pump when the appellant alongwith other police officials reached there and forcibly brought the empty oil tanker at the petrol pump. Even the employees at the petrol pump were not allowed to give the telephonic message to the owner. Almost most of the work was done by the police including sealing process when Mr. Jagmohan Singh, Sales Officer of the IBP Company reached there. The complainant also reached there on getting the information. The request made by the complainant to complete the entire process in his presence remained futile and at his instance the Sales Officer of the Oil Company signed all the papers wrongly prepared by the appellant and, accordingly, a false case was planted against the employees of the petrol pump, namely, Ashok Kumar and Rajesh Kumar under Section 7 of the Essential Commodities Act vide FIR No. 44 dated 16.1.2000 at Police Criminal Appeal No. S-296-SB of 2007 -3- Station Sadar, Patiala. The aforesaid employees were produced in the Court and their police remand was taken upto 21.1.2000. The appellant contacted the complainant that he could help him in this case and asked for bribe of Rs.2,00,000/-. However, the bribe amount was settled at Rs.1,00,000/-. The appellant assured that he would not go to Delhi to collect evidence against the complainant and the other accused. The complainant was not willing to pay any amount as bribe but under compelling circumstances and constant threats to him and his nephew Dharmindervir Singh that they would be involved in false cases, he, alongwith Murari Lal, who was also partner in the business of the complainant, went to the house of the appellant and gave Rs.10,000/- to him in cash. The appellant directed the complainant to pay the remaining amount of Rs.90,000/- to Gian Chand, Cloth Merchant at his shop in Adalat Bazar, Patiala near the residence of S. Jasdev Singh Sandhu, MLA. On 21.1.2000 at about 10.30 a.m., the complainant and Murari Lal paid Rs. 90,000/- to Gian Chand, who gave telephonic message to the appellant in their presence regarding the receipt of amount by him. Accordingly, as per demand and assurance given by the appellant, further police remand of the employees of the complainant was not asked for and they were sent to judicial custody. Even after the payment of Rs.1,00,000/-, the appellant had been pressurizing the complainant and threatening that this fact be not disclosed to any person, otherwise he and his Criminal Appeal No. S-296-SB of 2007 -4- nephew would be involved in other cases. On the above affidavit, the Senior Superintendent of Police made an endorsement and the present case was registered against the appellant. During the course of investigation, statements of the witnesses were recorded. On 23.5.2000, the appellant was arrested. He was interrogated. He suffered a disclosure statement, pursuant to which he got recovered Rs.1,20,000/- from his house, which were taken into possession. One Maruti car without registration number was also recovered from the appellant, which earlier belonged to Smt. Seema Sharma of Indira Colony, Patiala with registration No. PB-11Q-1786 and later on it was transferred in the name of Amandeep Sharma son of Ved Parkash. Upon completion of investigation and presentation of challan, the appellant was charged for the offences under Sections 7 and 13(2) of the Act, to which he pleaded not guilty and claimed trial. In support of its case, the prosecution examined PW1 HC Inderjit Singh, PW2 Seema Sharma, PW3 Gian Chand, PW4 HC Harpal Singh, PW5 Kulwant Rai, Junior Assistant, office of D.T.O., Patiala, PW6 Gurnam Singh, PW7 complainant-Kartar Singh, PW8 Balbir Singh, PW9 Inspector Jaswinder Singh, PW10 DSP Anil Kumar, PW11 Criminal Appeal No. S-296-SB of 2007 -5- SP Gurpreet Singh Gill, PW12 DSP Kulshinder Singh and PW13 Subhash Chand Khanna. When examined under Section 313 Cr.P.C., the appellant denied all the incriminating circumstances appearing in evidence against him and pleaded that he had been falsely involved in this case. At the relevant time, he was posted as In-charge, Special Task Force. He registered a case FIR No. 44 dated 16.1.2000 under Section 7 of the Essential Commodities Act, Police Station Sadar, Patiala, against the employees of the petrol pump owned by Kartar Singh complainant. The petrol pump of Kartar Singh was sealed in the presence of Jagmohan Singh, Deputy Manager, Bharat Petroleum. Due to this reason, Kartar Singh became inimical towards him and, later on, in connivance with the police, he got this false case registered against him as he was the Investigating Officer of that case. Till then, the said petrol pump of complainant- Kartar Singh had not been opened by the Company. No recovery of any amount was effected from him. In one week, three FIRs were registered against him, out of which FIR No. 289 dated 28.5.2000 was cancelled and in FIR No. 260 dated 31.5.2000 he was acquitted by the Court of Special Judge, Patiala on 16.12.2000. In defence, the appellant examined DW1 Jagmohan Singh, Deputy Manager, Sales, Indian Oil Corporation, Bathinda, DW2 HC Lachhman Singh, DW3 Gurkirpal Singh SP and DW4 Mohinder Singh Chahal, SP. Criminal Appeal No. S-296-SB of 2007 -6- After hearing learned counsel for the parties and going through the evidence available on the record, the trial Court believed the prosecution version and, accordingly, convicted and sentenced the appellant, as mentioned above. I have heard learned counsel for the parties and with their able assistance, scanned the evidence. Learned counsel for the appellant has submitted that the statement of the complainant regarding the demand of illegal gratification made by the appellant remains uncorroborated. Gian Chand, who was examined by the prosecution as PW3 so as to prove the factum of demand, did not support the prosecution case. It is true that PW3 Gian Chand did not support the case and was declared hostile. During his cross- examination by the Additional Public Prosecutor, he testified that he had paid a sum of Rs.95,000/- to the police. Part of the said amount was withdrawn by him from his bank while rest was from his daily sale proceeds. In this regard, he proved photocopy of the pass-book on record as Ex.DA. He, however, could not explain as to why he paid the amount of Rs.95,000/- to the police when he claimed that he was neither involved in taking or giving bribe in the case. Apparently, PW3 Gian Chand came up Criminal Appeal No. S-296-SB of 2007 -7- with an imaginary version of paying the amount of Rs.95,000/- to the police. On the other hand, as per the prosecution evidence, it stands proved that an amount of Rs.90,000/- was recovered by the police from the house of the appellant consequent upon his disclosure statement. The said amount was contained in a bag, upon which the words “for Ajay Kumar” were written as if the bag was meant for the appellant. The said recovery was effected by DSP Kulshinder Singh in the presence of Inspector Jaswinder Singh as well as one Pritpal Singh, who was an independent witness. PW7 Kartar Singh has produced on record the audit report Ex.PG/1 containing entry Ex.P4/2 regarding the payment of the bribe amount to the appellant. He also produced the cash book containing the relevant entry of payment of Rs.10,000/- and 90,000/-. He further produced on record a profit and loss statement for the year ending 31.3.2000 prepared by a Chartered Accountant and the ledger and the relevant entry regarding the payment of the aforesaid bribe amount. During investigation of the case, the appellant was arrested on 23.5.2000. Upon interrogation, he suffered a disclosure statement of having kept concealed Rs.90,000/- in an envelope in the store of his residential house in an iron box under the heap of clothes and only he knew about the same. He then led the police party and got recovered the envelope, which was in Criminal Appeal No. S-296-SB of 2007 -8- a polythene bag and contained cash amounting to Rs.90,000/-. A letter pad bearing seal of “Vishal Silk and Saree Emporium” belonging to Gian Chand was also recovered from that bag. The various memos made in that regard stand proved on the record. The appellant could not explain as to from where he got such a huge amount of Rs.90,000/-. It may not be out of place to mention here that in FIR No.44 dated 16.1.2000 registered against Swaran Filling Station, cancellation report was finally prepared, which was accepted by the Additional Sessions Judge, Patiala. The appellant challenged the said order by filing a revision petition but the same was also dismissed on 21.1.2001. This also proves the falsehood of the criminal case registered by the appellant against the employees of the filling station belonging to the complainant. Learned counsel for the appellant also submitted that the incident in question occurred in the month of January, 2000, whereas the FIR came to be registered on 22.5.2000. There was, thus, inordinate delay of more than four months in the registration of the case, which shows that the appellant was falsely implicated. However, on going through the evidence brought on the record, this Court finds that FIR No. 44 came to be registered against the employees of the filling station on 16.1.2000. Subsequent Criminal Appeal No. S-296-SB of 2007 -9- thereto, the employees were arrested and produced in the Court. Their police remand was granted upto 21.1.2000. The appellant contacted the complainant and told him that he could be helped if he paid an amount of Rs.2,00,000/- to him as bribe. The said demand was, however, brought down to Rs.1,00,000/-. Though the complainant was not interested in paying the bribe yet on account of the threats extended to him and his nephew Dharmindervir Singh of being falsely involved in criminal cases that he alongwith Murari Lal gave a sum of Rs.10,000/- in cash to the appellant on 21.1.2000 and another amount of Rs.90,000/- in cash was delivered to Gian Chand, a cloth merchant who was a close confidante of the appellant. In view of the said payment, the appellant did not seek further police remand of the employees of the filling station and, accordingly, they were sent to the judicial custody. Despite the same, the appellant had been pressurising and threatening the complainant that if he disclosed about the aforementioned facts to any person, he and his nephew would be involved in other cases. At that point of time, the complainant appeared before the Senior Superintendent of Police and submitted his affidavit. Therefore, whatever delay occurred in the lodging of the FIR stands satisfactorily explained. Learned counsel for the appellant further submitted that the complainant set up a false case against the appellant as the latter had got registered FIR No. 44 Criminal Appeal No. S-296-SB of 2007 -10- dated 16.1.2000 against the employees of the filing station and as result thereof, the petrol pump was sealed in the presence of the official of the petroleum company. It is no doubt true that the appellant while posted as Incharge, Special Task Force registered the aforementioned FIR under Section 7 of the Essential Commodities Act against the employees of the filling station owned by the complainant-Kartar Singh and after drawing the samples, the officials of the petroleum company had sealed the filling station. However, as mentioned above, the said case was cancelled after thorough investigation and the cancellation report so prepared was accepted by the competent Court. The challenge of the appellant to the acceptance of the cancellation report failed as the revision filed by him was dismissed by this Court. Moreover, after the registration of the aforementioned FIR, the appellant made a demand from the complainant for a sum of Rs.2,00,000/- as illegal gratification in order to ensure that the said criminal case did not proceed any further. The amount was finally settled at Rs.1,00,000/-. The said amount was paid to the appellant as well as to his close confidante, namely, Gian Chand. Even thereafter, the appellant had been pressurising and threatening the complainant not to disclose the facts to anyone or else he and his nephew Dharmindervir Singh would be involved in the case. Criminal Appeal No. S-296-SB of 2007 -11- It is also submitted that while conducting the search of the house of the appellant, the police did not join any independent witness and as such there was violation of Section 100(4) Cr.P.C. However, this argument does not cut any ice as at the time of conducting the search of the house of the appellant, the police had joined one Pritpal Singh as an independent witness. Even otherwise, non- joining of an independent witness is only an irregularity, which would not vitiate the case of the prosecution. As regards the non-examination of Murari Lal, who was also partner of the complainant, it may be noticed that he was cited by the prosecution as one of its witnesses but before he could be examined, he died. This fact was duly noted by the trial Court in its interim orders passed on 10.9.2003 and 16.10.2003. Lastly, it is submitted by learned counsel for the appellant that the appellant is facing the agony of criminal prosecution for the last more than ten years. He is a first offender and the sole bread winner of his family. Therefore, his substantive sentence of imprisonment be reduced. Having heard counsel for the parties, this Court is of the considered view that the sentence of imprisonment Criminal Appeal No. S-296-SB of 2007 -12- of three years imposed upon the appellant is highly excessive and ends of justice would be amply met if the same is reduced to one year. Resultantly, the conviction of the appellant under Sections 7 and 13(2) of the Act is maintained. However, his substantive sentences of imprisonment on both the counts shall stand reduced from three years to rigorous imprisonment for one year. The sentences of fine, alongwith their default clauses on both the counts, are upheld. But for the modification in the sentence of imprisonment, to the extent indicated above, the appeal fails and is, therefore, dismissed. ( T.P.S. MANN ) November 11, 2010 JUDGE satish Satish Kumar 2014.04.23 16:01 I attest to the accuracy and integrity of this document Chandigarh