Criminal Appeal No. 469-SB of 2004 -1- IN THE HIGH COURT OF PUNJAB & HARYANA AT CHANDIGARH Criminal Appeal No. 469-SB of 2004 Date of decision : September 19, 2011 Balbir Singh since deaceased represented by his wife Baljit Kaur ....Appellant versus State of Punjab ....Respondent Coram: Hon'ble Mr. Justice L.N. Mittal Present : Mr. Anmol Partap Singh Mann, Advocate, for the appellant Ms. Gagan Mohini, Assistant Advocate General, Punjab L.N. Mittal, J. (Oral) Accused Balbir Singh filed this criminal appeal to challenge his conviction and sentence ordered by learned Special Judge, Ludhiana vide judgment and order dated 14.2.2004 whereby the accused was convicted under section 7 read with section 13(2) of the Prevention of Corruption Act, 1988 (in short, the Act) and sentenced to undergo rigorous imprisonment for one year and to pay fine of Rs 500/- and in default thereof, to undergo further rigorous imprisonment for one month under section 7 of the Act and to undergo rigorous imprisonment for two years and to pay fine of Rs Criminal Appeal No. 469-SB of 2004 -2- 1000/- and in default thereof, to undergo further rigorous imprisonment for one month under section 13(2) of the Act, but both the sentences were ordered to run concurrently. Before proceeding further, it has to be noticed that during the pendency of the instant criminal appeal, convict Balbir Singh died and his wife Baljit Kaur was allowed to continue the appeal. Prosecution case is that accused Balbir Singh was posted as Senior Clerk in Punjab Backward Classes Land Development and Finance Corporation (in short, the Bank) at Ludhiana. Complainant Liyakat Ali was to apply for loan from the bank. He filled necessary forms and attached necessary documents. On 11.9.1998, the complainant along with form accompanied by Gurnam Dass met the accused in his office and produced his form for loan. The accused, however, demanded Rs 1500/- as illegal gratification for getting necessary formalities completed from the office and for sending the form to Head Office at Chandigarh. The deal was, however, struck at Rs 1000/-. The complainant on the pretext that he was not having requisite amount told the accused that he would arrange the amount and pay it to the accused in the afternoon. However, the complainant went to the office of Vigilance Bureau and made statement Ex. PA to DSP Pinder Singh. The complainant gave 10 currency notes of Rs 100/- denomination to the DSP who applied phenolphthalein powder to the notes and returned the same to the complainant. Numbers of the notes were recorded in memo. Gurnam Dass was made shadow witness. Necessary Criminal Appeal No. 469-SB of 2004 -3- instructions were given to the complainant and the shadow witness. Raiding party was formed. Demonstration was also given to the complainant and the shadow witness. Statement of the complainant along with endorsement made by DSP was sent to Police Station where on its basis, FIR was registered. On way to office of the accused, Sukhdev Singh, Clerk in the office of PWD (B&R) was also joined in the raiding party. The complainant and the shadow witness were sent to the office of the accused whereas the remaining party stayed a little away. On demand of the accused, complainant gave the tainted currency notes to the accused who put the same in the pocket of his pants. Shadow witness flashed necessary signal to the raiding party who reached the spot. Hand wash of the accused in sodium carbonate solution turned the colour thereof into pink. Tainted currency notes were recovered from the pocket of pants of the accused. Numbers of the said notes were found to be the same as mentioned in the memo. Pocket wash of pants of the accused in separate solution of sodium carbonate also turned its colour into pink. The solutions were sealed in separate nips. All the articles including tainted currency notes and pants of the accused were seized by the police. Loan form of the complainant was also seized from the office of the accused. Statements of witnesses were recorded. Site plan of the place of occurrence was prepared. The accused was arrested. On analysis in Forensic Science Laboratory, solutions of hand wash and pocket wash of pants of the accused were found to contain Criminal Appeal No. 469-SB of 2004 -4- sodium ions, carbonate ions and phenolphthalein. Sanction for prosecution of the accused was obtained. On completion of investigation, police presented report under section 173 of the Code of Criminal Procedure (in short, Cr.P.C.) for prosecution of the accused under sections 7 and 13(2) of the Act. Charge under section 13(2) read with section 7 of the Act was framed against the accused. He pleaded not guilty and claimed trial. In support of its case, the prosecution examined nine witnesses. Complainant Liyakat Ali, PW1, Sukhdev Singh PW4 and Investigating Officer, Pinder Singh retired DSP PW6 broadly stated according to the prosecution version. Shadow witness Gurnam Dass, PW2 turned hostile and did not support the prosecution case. He rather stated that the complainant along with him had taken the form to the bank and had met RP Singh, Inspector and gave the form to him but he told that the form was not complete. He also guided the complainant to complete the form. The complainant and the shadow witness visited RP Singh many times. The shadow witness was declared hostile and was cross-examined again by Public Prosecutor but he denied the prosecution version. Constable Kulwinder Singh, PW3, HC Gurbhej Singh, PW5 and Constable Harbans Singh, PW7 stated that the case property remained un-tampered with. Suman Bala, Clerk, PW8 stated that loan form is brought by Criminal Appeal No. 469-SB of 2004 -5- Assistant posted in the field to the Field Officer who then marks the form to the concerned Clerk. She deposed that loan form Ex. P14 of the complainant had not been marked by the Field Officer to any Clerk for further dealing. Rakesh Kumar, Senior Assistant, PW9 proved sanction order for prosecution of the accused. The accused in his examination under section 313 Cr.P.C. while admitting his posting as Senior Clerk in the bank denied all the other incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. He stated that territorial jurisdiction to deal with application form of the complainant was with RP Singh, Senior Clerk. The accused alleged that he had nothing to do with that loan form. He had seen the complainant in the office several times approaching RP Singh to do his work, but documents of the complainant were not in order. The accused used to give advice to RP Singh whenever he sought advice. The complainant under mistaken impression or suspicion got this false case registered against him. Police took him in custody from his office and later on planted the alleged currency notes. In defence, the accused examined Manohar Lal, DW1, a Peon from the bank. He stated that on 11.9.1998 at about 9.15 AM, two police officials came to the bank and inquired about RP Singh and accused Balbir Singh. The accused was sitting in the office whereas RP Singh was on leave. The police officials took the accused with them telling that some Criminal Appeal No. 469-SB of 2004 -6- inquiry was to be made from him. The accused after seeking permission from Sohan Lal, Senior Officer present in the office, accompanied the police officials. Suman Bala, Clerk was also present in the office. The witness stated that next day, he came to know that the accused has been falsely implicated in corruption case. The accused was dealing with area of Raikot and Khanna. Learned Special Judge vide impugned judgment and order dated 14.2.2004 convicted and sentenced the accused as already noticed hereinbefore. Feeling dissatisfied, the convict filed the instant criminal appeal. I have heard learned counsel for the parties and perused the case file with their assistance. Learned counsel for the appellant pointed out various discrepancies and contradictions in the prosecution evidence. It was contended that the complainant stated that he was not having Rs 1000/- with him when the accused demanded bribe. The complainant also stated that from the bank, they went to the Vigilance Bureau and then came back to the bank and he did not visit his house till he was free from the bank at 3.30 PM. It was, thus, argued that the complainant has not explained as to from where he gave tainted currency notes to the police party and then to the accused. It was also contended that the complainant in his deferred cross- examination recorded on 12.7.2001 identified the case property which were given different exhibit numbers but in further examination recorded on Criminal Appeal No. 469-SB of 2004 -7- 28.11.2002, some other exhibit numbers were given to the case property. It was also contended that shadow witness Gurnam Dass has turned hostile although he belongs to the colony of the complainant himself. The said witness also stated that his signatures on various documents were obtained in Vigilance office after several days. It was next argued that Sukhdev Singh stated that his statement was not recorded by any police official although after 2/3 days he was called by Superintendent Vigilance to verify the case. Certain improvements allegedly made by this witness in the Court over his statement recorded under section 161 Cr.P.C. were also pointed out. It was also submitted that according to Sukhdev Singh, he signed all the documents at 5.30 PM at the spot whereas according to the complainant and the Investigating Officer, they were free from the bank at 3.30 PM. It was also canvassed that Sukhdev Singh PW4 stated that he was also joined as witness in another corruption case by another Investigating Officer of the Vigilance Bureau but the witness again deposed that he was joined in the other case also by this very Investigating Officer whereas retired DSP Pinder Singh, PW6 denied having joined Sukhdev Singh as witness in any other case. It was argued that Sukhdev Singh, PW4 could not tell any details of the said other case. Learned counsel for the appellant also contended that HC Gurdev Singh who was posted as MHC at the relevant time did not bring registers No. 19 and 21 nor proved relevant daily diary report regarding deposit of the case property with him. It was also pointed out that according Criminal Appeal No. 469-SB of 2004 -8- to the complainant, the accused had put the tainted currency notes in right hand pocket of his pants but Pinder Singh, PW6 (IO) stated that tainted currency notes were recovered from front side special pocket of the pants of the accused. The Investigating officer also stated that signatures of the complainant on his statement Ex. PA had been obtained at 9.00 AM whereas the complainant stated that they had visited the office of bank at 10.30 AM and thereafter they had gone to the Vigilance office. Pinder Singh also stated that there was no other employee at the time of raid in the bank. Pinder Singh also deposed that specimen seal impression was not there on the judicial file. Learned counsel for the appellant also referred to cross-examination of Suman Bala, PW8 who stated that RP Singh, Field Assistant was dealing with Ludhiana East at that time. Counsel for the appellant also assailed the sanction order for prosecution of the accused by pointing out that Rakesh Kumar, PW9 stated that he put the record to the Sanctioning Authority on 7.10.1999 whereas the sanction order is dated 5.10.1999. Rakesh Kumar also stated that the sanction order was already typed which was handed over to him for getting signatures of the competent authority thereon. It was, thus, argued that sanction order is defective and the competent authority did not apply its mind before granting sanction. Counsel for the appellant also referred to the defence version as corroborated by Manohar Lal, DW1. It was also pointed out that there was no signature or endorsement of any bank official on the loan form of the complainant. It was submitted that the accused did not have territorial Criminal Appeal No. 469-SB of 2004 -9- jurisdiction to deal with the form of the complainant. On the other hand, learned State counsel contended that demand of bribe money by the accused is proved from the testimony of the complainant and the same is further corroborated by recovery of tainted currency notes from the accused as stated by complainant Liyakat Ali, PW1, Sukhdev Singh PW4 and Pinder Singh PW6. The said recovery is further proved by hand wash and pocket wash of pants of the accused. It was also submitted that even according to the statement of accused made under section 313 Cr.P.C., he had been advising RP Singh in the matter and therefore, on this pretext, the accused had the opportunity to demand illegal gratification from the complainant. It was also argued that the loan file of the complainant was recovered from the office of the accused at the time of raid. It was also submitted that there is no reason why the accused would be implicated in a false case. I have carefully considered the rival contentions. All the prosecution witnesses except shadow witness Gurnam Dass, PW2 have supported prosecution case. Their veracity could not be impeached in their cross-examination, notwithstanding some minor contradictions or discrepancies pointed out therein. They had no reason to implicate the accused in a false case or to depose falsely against him. Defence version in this regard is completely untenable because if the defence version had been true, then the complainant would have named RP Singh as the main or only accused and would not have named the present Criminal Appeal No. 469-SB of 2004 -10- accused at all or would have named him as co-accused by assigning secondary role only. However, the complainant named Balbir Singh as the only accused in the case and did not refer to RP Singh at all. Consequently, defence version that RP Singh had the jurisdiction to deal with the loan case of the complainant and the present accused had nothing to do cannot be accepted. There is also no categorical evidence on record to define separate territorial jurisdiction of the present accused and RP Singh and to demonstrate that the present accused did not have territorial jurisdiction to deal with this case or that only RP Singh had territorial jurisdiction to deal with it. It may also be added that according to the statement of the accused under section 313 Cr.P.C., he was picked up from his office and thrown in the jeep suggesting that he was just forcibly taken away from his office by the police officials. However, Manohar Lal, DW1 has a different story to tell. In this regard, he stated that two police officials came and told the accused that he was required in the Vigilance office for some inquiry and thereafter the accused sought permission from his senior officer Sohan Lal present in the office and then accompanied the police officials in their jeep, suggesting that the accused voluntarily accompanied the police officials on being asked to do so. It may also be added that the accused in his defence has examined Manohar Lal who was posted as Peon but has not examined the senior officer Sohan Lal whose permission the accused had allegedly sought to accompany the police officials as stated by Manohar Lal DW1. Manohar Lal also stated that RP Singh was on leave on Criminal Appeal No. 469-SB of 2004 -11- 11.9.1998, but no record has been produced in support of this version. The contention that loan form is brought by the Assistant posted in the field to the Field Officer who then marks it to the concerned Clerk as stated by Suman Bala, Clerk, PW8 does not help the appellant because this witness in cross-examination stated that RP Singh was posted as Field Assistant at that time. The accused himself has claimed that he was working on the same post as RP Singh. It means that the accused and RP Singh were designated as Senior Clerks but were functioning as Field Assistants to deal with the loan files. Consequently, it cannot be said that the accused had nothing to do with the loan case of the complainant. Minor contradictions regarding time in statements of prosecution witnesses cannot be given undue importance because with passage of long time, such contradictions are bound to occur even in the statements of most truthful witnesses. Some contradictions are also likely to occur on account of different powers of perception, observation and memory. Initial examination-in-chief of Liyakat Ali complainant was recorded on 20.11.2000 and his statement concluded on 28.11.2002 i.e. more than four years after the occurrence. Sukhdev Singh PW4 was examined on 23.4.2001 i.e. more than 2½ years of the occurrence. Pinder Singh, PW6 was examined on 28.11.2002 i.e. more than four years after the occurrence. On account of lapse of aforesaid long period, contradictions in the statements of these witnesses pale into insignificance. It may also be added that the witnesses could not be expected to make identical verbatim Criminal Appeal No. 469-SB of 2004 -12- statements just like parrots. They could not give photographic or videographic version. It may be added that Pinder Singh, PW6 had even retired from service as DSP when he appeared in the witness box and therefore, at the time of his testimony, he could have possibly no interest to depose falsely against the accused. Sukhdev Singh PW4 belongs to PWD (B&R) and therefore, he also had no interest in the success of the case. The complainant also had no enmity with the accused. Consequently, all these three witnesses had no motive to depose falsely against the accused. As regards testimony of the complainant that he was not having Rs 1000/- when the accused demanded bribe from him, in fact testimony of the complainant read as a whole along with FIR lodged by him clearly brings out the picture that although the complainant was having the requisite amount with him, he put off the accused on the pretext that he was not having the amount at that time and shall arrange and pay the same to the accused in the afternoon. The complainant in his cross-examination categorically stated that he was having currency notes worth Rs 1000/- with him. Thus, contention of counsel for the appellant on this aspect cannot be accepted. Merely because shadow witness Gurnam Dass PW2 has turned hostile, the entire prosecution case cannot be discarded or thrown away. There is other ample evidence led by the prosecution to prove the guilt of the accused beyond reasonable doubt. Statements of the complainant Liyakat Ali PW1, Sukhdev Singh PW4 and Pinder Singh, retired DSP, PW6 Criminal Appeal No. 469-SB of 2004 -13- coupled with other evidence on record are sufficient to prove all ingredients of the offences in question against the accused beyond reasonable doubt. On the other hand, it is apparent that Gurnam Dass has been won over by the accused. Gurnam Dass admitted his signatures on all the documents (memos etc.). His explanation that he signed these documents in Vigilance office several days after the occurrence cannot be accepted because there was no reason for him to have signed these documents several days after the occurrence and particularly if the occurrence had not taken place in the manner stated in these documents. Some minor variations pointed out in the testimony of Sukhdev Singh over his statement under section 161 Cr.P.C. are natural variations and do not come within the purview of improvements. These variations do not touch the core or nucleus of the prosecution case as stated by Sukhdev Singh in the witness box and as stated by him in his statement under section 161 Cr.P.C. Minor variation regarding time at which the proceedings concluded as stated by Sukhdev Singh PW on the one hand and by complainant and Investigating Officer on the other hand also cannot be given undue importance particularly in view of lapse of long period when these witnesses were examined after the occurrence. Statement of Pinder Singh PW6 that the complainant had signed his statement Esx. PA at 9.00 AM appears to be result of some inadvertent error due to lapse of long period of more than four years when Pinder Singh appeared in the witness box because statement Ex. PA of the complainant with endorsement Ex. Criminal Appeal No. 469-SB of 2004 -14- PA/1 made thereon by Pinder Singh concluded at 11.30 AM and therefore, it cannot be said that statement Ex. PA had been signed by the complainant at 9.00 AM because it would not have taken 2½ hours to make endorsement Ex. PA/1 on statement Ex. PA. Sukhdev Singh cannot be said to be stock witness of Pinder Singh or of the police nor it cannot be said that Sukhdev Singh was easily and conveniently available witness to Pinder Singh merely because Sukhdev Singh stated that he had also joined as witness in another corruption case of this very Investigating Officer. It has also not come in evidence whether the said other case was prior or subsequent to the instant case. Sukhdev Singh was also not very sure that the other case was of this very Investigating Officer or of some other Investigating Officer because initially Sukhdev Singh stated that the said other case was of some other Investigating Officer but this witness again stated that the other case was also of this very Investigating Officer. Pinder Singh has categorically stated that he did not join Sukhdev Singh in any other case. No document has been placed on record to depict that Sukhdev Singh was joined as witness in some other case at all either by Pinder Singh or by some other Investigating Officer. Similarly if Sukhdev Singh did not remember particulars of the said other case, it would not effect the merits of the instant case. Details of other case would not be relevant for adjudication of the case in hand. Gurbhej Singh HC, PW5 has categorically stated that case Criminal Appeal No. 469-SB of 2004 -15- property was deposited with him and was not tampered with in his custody. He has also stated that he gave sealed nips of solutions to Constable Harbans Singh for deposit in Forensic Science Laboratory. His statement in this regard is corroborated by Constable Harbans Singh, PW7. Consequently, non-production of register nos. 19 and 21 or relevant DDR by Gurbhej Singh would not make any difference. In any case, if the accused so wanted, he could have summoned the same from this witness. It may be added that the prosecution has led complete chain of link evidence to demonstrate that the case property was not tampered with. This conclusion is fortified by report Ex. PZ of Forensic Science Laboratory certifying that the seals on the nips of solutions were intact and tallied with specimen seal impressions. Thus, it is apparent that the case property was not tampered with. Statement of Pinder Singh PW6 that the specimen seal impression was not available on the judicial file is correct because the specimen seal impressions had been sent to Forensic Science Laboratory and were, therefore, not available on the judicial file. Sanction order for prosecution of the accused also cannot be said to be defective in any manner because Rakesh Kumar PW9 categorically stated that he was dealing with legal branch and when this case was received from the Vigilance Bureau, he put up his note to the competent authority i.e. Executive Director (Mr. S.S.Dhillon, IAS). Rakesh Kumar also stated that he also put up the record received from Vigilance department to the aforesaid officer and after going through the record and Criminal Appeal No. 469-SB of 2004 -16- after applying his mind, the officer Mr. SS Dhillon granted sanction for prosecution of the accused. Consequently, it cannot be said that the competent authority did not apply mind before granting sanction for