-1- Criminal Appeal No.1169-SB of 2002. IN THE HIGH COURT FOR THE STATES OF PUNJAB & HARYANA AT CHANDIGARH ... Criminal Appeal No.1169-SB of 2002. Date of Decision: February 19, 2010. Hari Krishan ...Appellant VERSUS State of Punjab ...Respondent 1. Whether the Reporters of Local Newspapers may be allowed to see the judgment ? 2. To be referred to the Reporters or not ? 3. Whether the judgment should be reported in the Digest ? QUORUM : HON'BLE MR. JUSTICE MOHINDER PAL. Present: Mr. Sudeep Mahajan, Advocate, and Mr. Preet Pandit, Advocate, for the appellant. Mr. Vishal Munjal, Additional Advocate General, Punjab. -.- MOHINDER PAL, J. In this appeal, appellant Hari Krishan has impugned the judgment of conviction and the sentence order dated 10.7.2002 passed by the Special Judge, Amritsar, whereby he was convicted and sentenced under Sections 7 and 13 (1)(a) of the Prevention of Corruption Act, 1988 (for short `the Act'). -2- Criminal Appeal No.1169-SB of 2002. For the former offence, he was sentenced to undergo rigorous imprisonment for six months and to pay fine of Rs.500/- in default whereof to undergo further rigorous imprisonment for one month. For the latter offence, he was sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs.500/- in default whereof to undergo further rigorous imprisonment for one month. Both the substantive sentences of imprisonment were ordered to run concurrently. The appellant was posted as Junior Engineer in the Punjab State Electricity Board (for short `the Board') at Jasterwal. Complainant Sujan Singh, who was a subscriber of the Board, was maintaining two tube-well connections connected with Marianwala Daya Singh Transformer. On 3.7.1993, that Transformer developed a fault and son of Sujan Singh had lodged a complaint to that effect with the Board. As the complaint remained unattended till 6.7.1993, complainant Sujan Singh went to the office of the Board where the appellant was posted as Junior Engineer. The complainant met the accused and requested him to remove the fault. However, no action was taken by the accused in this regard. On 8.7.1993, the complainant along with Sulakhan Singh went to the accused, who told the complainant that the Transformer could not be changed time and again. The accused further stated in case the complainant wanted to change the Transformer, he should pay the accused a bribe of Rs.5,000/-. However, the deal was struck at Rs.2,000/-, which the complainant promised to bring on the next day. -3- Criminal Appeal No.1169-SB of 2002. As the complainant did not want to pay illegal gratification, on 9.7.1993, he (complainant) along with Sulakhan Singh approached Inspector Tarlok Singh at the Vigilance Bureau, Amritsar, and narrated the whole facts to him. On the basis of statement of the complainant, the instant case was registered. A raid was accordingly organized to nab the appellant. The members of the raiding party included complainant Sujan Singh, Sulakhan Singh, who was to act as a shadow witness, Kuldip Singh, an independent witness, and other police officials. Afterwards, Darshan Singh, Sub Divisional Officer of the Board was also joined in the raiding party. The complainant had produced Rs.2000/- consisting of twenty currency notes of the denomination of Rs.100/- each before Inspector Tarlok Singh. Their numbers were noted down. Phenolphthalein powder had been applied to these notes and these were handed over to the complainant by instructing him to hand over these currency notes to the accused on his demand. Sulakhan Singh was to act as a shadow witness. Complainant Sujan Singh and Sulakhan Singh went to the office of the accused. On seeing them, the accused came towards them and told them about having arranged the Transformer and demanded money. The complainant handed over the tainted money to the accused, who put those notes in the right pocket of his pant after counting them. At this, Sulakhan Singh passed on the settled signal, which was followed by the remaining raid party. After disclosing his identity, Inspector Tarlok Singh and two police -4- Criminal Appeal No.1169-SB of 2002. officials caught hold of the accused. The tainted money was recovered from the accused. The entire raiding party including Sub Divisional Officer Darshan Singh of the Board came to the office of the latter. Numbers of the currency notes recovered from the accused were compared with the currency notes the numbers of which had been noted earlier by the police and those tallied with each other. The appellant was made to wash his hands in the water mixed with sodium carbonate and colour of the solution turned pink. The wash pertaining to the appellant was sealed in the form of parcel and taken into possession by the police. The currency notes were also taken into possession. After completion of investigation challan against the accused-appellant was presented in the Court. Charge for the offence punishable under Sections 7 and 13 (2) of the Act was framed against the accused, to which he did not plead guilty and claimed a trial. After recording the evidence and hearing the learned counsel for the parties, the trial Judge convicted and sentenced the appellant, as afore-mentioned. I have heard the learned counsel for the parties and have gone through the records of the case. In this case complainant Sujan Singh (P.W.6) and shadow witness Sulakhan Singh (P.W.7) have reiterated the version of the prosecution, as mentioned above. The statements of Sujan Singh (P.W.6) and Sulakhan Singh (P.W.7) get corroboration from the statement of Kuldip Singh (P.W.8), a Senior Assistant in -5- Criminal Appeal No.1169-SB of 2002. Amritsar Branch of Punjab Financial Corporation, who had also been joined in the raiding party. Still further, Darshan Singh (P.W.5), a Sub Divisional Officer of the Board, working in the same office where the accused-appellant was working, has deposed that recovery of Rs.2,000/- was effected from the accused in his presence. The appellant, in his statement recorded under Section 313 of the Code of Criminal Procedure, pleaded false implication simpliciter. No evidence could be led by the accused-appellant in his defence. Otherwise also, as will be discussed in the later part of this judgment, the complainant, the shadow witness, the independent witnesses and the police had no enmity with the appellant to falsely implicate him in this case. Learned counsel for the appellant argued that no valid sanction for prosecution of the appellant was obtained, which casts a serious dent in the prosecution case. However, after giving a careful thought to this argument of the learned counsel, I do not find any force therein. In this case, proper sanction was obtained by the police before prosecuting the accused. Tarsem Lal (P.W.10), Senior Assistant in the office of the Chief Engineer North, Punjab State Electricity Board, Jalandhar, proved the order (Exhibit P.O) passed by Mr. V.S. Walia, Chief Engineer, according sanction to the prosecution of the accused. Learned counsel for the appellant by referring to the statement of Meg Raj (P.W.9), who at the relevant time was Store Keeper of the Board and had stated that on 8.7.1993 he had issued two new Transformers to the appellant, argued that if the -6- Criminal Appeal No.1169-SB of 2002. Transformers had been replaced on 8.7.1993, there was no question for the complainant to pay bribe to the accused. This argument of the learned counsel for the appellant is without any force. Darshan Singh (P.W.5), Sub Divisional Officer of the Board denied of being aware of replacement of the Transformer on 8.7. 1993. Further, it is borne out from the evidence on record that the electric supply from the Transformer under reference resumed only on 11.7.1993. Therefore, even if the Transformer had been changed on 8.7.1993, as is claimed by the accused, the complainant was still without supply of electricity on 8.7.1993 and 9.7.1993. The complainant, a rustic villager, had thus felt the necessity of approaching the accused-appellant for the replacement of the transformer. Under these circumstances, there is no escape from the conclusion that the appellant had not only the opportunity but also the motive to demand and accept the bribe. No straight jacket formula can be laid as to how and in what circumstances the demand is proved. The mind of the person demanding bribe cannot be peeped into. The prosecution is to prove case its by leading positive evidence, which has been done by it in the instant case, as discussed above. The evidence led by the prosecution proves in certain terms that the appellant had demanded and accepted bribe from the complainant, patently under the threat of showing disfavour to him (complainant). In this view of the matter, the authority relied upon by the learned counsel for the appellant i.e T.Subramanian v. State of T.N, (2006(1) Supreme Court Cases 401 and in -7- Criminal Appeal No.1169-SB of 2002. support of the argument that the demand and acceptance of illegal gratification is not proved on record is not applicable to the facts of the present case. It was also argued by the learned counsel for the appellant that the Investigating Officer, namely, Inspector Tarlok Singh has not been examined by the prosecution in this case and it casts a doubt upon the veracity of the prosecution case. I have given thoughtful consideration to this argument of the learned counsel for the appellant, but do not find any substance therein. No doubt, the Investigating Officer has not been examined in this case, but it cannot be said that he alone could have proved the case of the prosecution. As mentioned above, the prosecution has been able to prove demand and acceptance of bribe by the accused. If the Investigating Officer had not been examined by the prosecution, all the other four prosecution witnesses, mentioned above, who are witnesses of the demand, acceptance of bribe and recovery of tainted money from the accused, do not lose their value. These four witnesses, namely, Sujan Singh, Sulakhan Singh, Darshan Singh and Kuldip Singh were subjected to a searching cross- examination by the prosecution, but nothing could be elicited therefrom which may be useful to the accused. No enmity whatsoever has been attributed to either Sulakhan Singh, Darshan Singh or Kuldip Singh. In fact, Darshan Singh was a senior colleague of the accused and was working in the same office in which he was working. Under the circumstances, non-examination of Inspector Tarlok Singh will not, in any way, affect the veracity of -8- Criminal Appeal No.1169-SB of 2002. the prosecution case against the accused. Learned counsel for the appellant also argued that the complainant had a motive to falsely implicate the accused- appellant in this case as the complainant was twice caught by the accused-appellant committing theft of electricity by means of `Kundi' (illegal) connection and was made to pay for the same. I have given my thoughtful consideration to this argument of the learned counsel for the appellant. A suggestion in regard to theft of electricity by the complainant was put to complainant Sujan Singh (P.W.6). However, but for this suggestion put to the complainant, the accused-appellant has not led any evidence in support of this contention; meaning thereby this contention is without any basis and proof. It is well-settled that the story as put forth during the trial which remains unsubstantiated in the absence of any proof has no evidentiary value. By referring to the judgment cited as Ganga Kumar Srivastava v. State of Bihar, (2005) 6 Supreme Court Cases 211 wherein it was held that it is the duty of the officers laying trap must seriously endeavour to secure really independent and respectable witnesses so that the evidence in regard to raid inspires confidence in the mind of the Court and the Court is not left in any doubt whether or not any money was paid to the public servant by way of bribe, learned counsel argued that the raiding party ought to have joined some independent witness in the case. This argument of the learned counsel only needs mention and rejection. As has been mentioned above, in this case Kuldip -9- Criminal Appeal No.1169-SB of 2002. Singh (P.W.8), who was joined in the raiding party, is an independent witness who was a Senior Assistant in the Punjab Financial Corporation, Amritsar. Kuldip Singh (P.W.8), as mentioned above, has fully supported the prosecution version. Besides, Darshan Singh (P.W.5), a witness to recovery of tainted money from the accused, was a senior colleague of the accused and was working in the same office in which he was working. The facts and circumstances, discussed above, clearly show that the demand and acceptance of illegal gratification by the appellant, who was a public servant, from the complainant has been clearly established on record by the prosecution by leading the evidence, discussed above. Consequently, the judgment of conviction rendered by the learned trial Judge is upheld. The sentence awarded to the appellant commensurates with the offence committed by him. The impugned sentence order is also, accordingly, upheld.d Consequently, this appeal is hereby dismissed being without any merit. February 19, 2010. ( MOHINDER PAL ) ak JUDGE