Criminal Appeal No. 1497-SB of 2005 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH ... Criminal Appeal No. 1497-SB of 2005 Date of decision: _4th March, 2008 Jaswant Singh ... Appellant Versus State of Punjab ... Respondent ... Present: Mr. G.S.Sandhawalia, Advocate for the appellant. Mr. Tejinder Singh, Deputy Advocate General, Punjab for the respondent-State. ... CORAM: HON'BLE MR. JUSTICE HARBANS LAL ... HARBANS LAL, J This appeal is directed against the judgment/order of sentence dated 11.8.2005 passed by the Court of learned Judge, Special Court, Jalandhar, whereby he convicted and sentenced Jaswant Singh to undergo rigorous imprisonment for two years and to pay a fine of Rs.5,000/- and in default of payment of fine, to further undergo rigorous imprisonment for six months under Section 13(e) of the Prevention of Corruption Act, 1988 ( hereinafter to be referred to as 'the Act' ). Succinctly put the facts of the prosecution case are that 6.12.2000, Gurpreet Deol, IPS, Senior Superintendent of Police, the then Superintendent of Police, Vigilance Bureau, Jalandhar, received information Criminal Appeal No. 1497-SB of 2005 -2- from reliable sources that Jaswant Singh, Panchayat Secretary Mandiala, Police Station, Mehalpur, has amassed wealth by accepting illegal gratification and during and during the period 1.10.1991 to 31.12.1991, he had spent Rs.16,83,062/-, whereas his actual income from his known sources was Rs.6,86,176/-. Thus, he has spent Rs.9,96,086/-which he had accumulated by accepting illegal gratification as a public servant. He was also informed that Jaswant Singh had built two houses besides his having purchased certain plots in the name of his wife and a Maruti Car by misusing his position as a public servant. On the basis of this information, Ruqa was sent for registration of the case. On its basis, FIR was recorded. The accused was arrested. After completion of investigation, the charge sheet was laid in the Court for trial of the accused. The accused was charged under Section 13(e) of the Act to which he did not plead guilty and claimed trial. To bring home guilt against the accused, the prosecution has examined Piara Singh, PW-1 Accounts Officer, Telecom Department, Jalandhar, PW-2 Surjhit Ram, Transport Clerk, Office of SDM Nakodar, PW-3 Bhinder Singh, Senior Assistant, Rural Development and Panchayat, Punjab, Chandigarh, PW-4 Amarjit Singh, Junior Assistant, Rural Development and Panchayat Department, Shahkot, PW-5-Charanjit Singh, Superintendent, Panchayat Samit, Rurka Kalan, PW-6 Brijmohan Sehgal, Senior Assistant, Tehsil Office, Nakodar, PW-7 Surinder Kumar, Clerk, Office of SP Vigilance, Jalandhar, PW-8 Mangal Singh, PW-9 Harnek Singh, Inspector Vigilance Bureau, Jalandhar, PW-10 Hardev Singh, Seed Testing Officer, Gurdaspur, PW-11 Naval Chander Bhalla, Manager, The Nakodar Hindu Urban Cooperative Bank, Nakodar, PW-12 Gurmej Singh, Criminal Appeal No. 1497-SB of 2005 -3- PW-13 Ram Asra, Accountant, Office of the Block Development and Panchayat Office, Block Nakodar, PW-14 Kulbir Singh, SDO Rural Works, Sub Division, Kapurthala, PW-15 Mohan Singh, Assistant Manager, State Bank of Patiala, Goraya, PW-16 Jagtar Singh, PW-17 Harmesh Chander Sharma, Superintendent, DDPO Office, Rurka Kalan, PW-18 Vikram Nayyar, Revenue Accountant, Model Town Region, Ludhiana, PW-19 Gurdip Siungh Sidhu, Ex-Senior Manager, Punjab and Sind Bank, Nakodar, PW-20 Gurpreet Deol, SSP Hoshiarpur, and closed its evidence. When examined under Section 313 of the Code of Criminal Procedure Code, the accused denied all the incriminating circumstances appearing in the prosecution evidence against him and pleaded innocence. He has come up with the following plea :- “ I am innocent. the police has deliberately involved me in this false case. they did not consider the income of my wife and other family members. My wife right from her marriage is doing stitching work and earning to the tune of Rs.4,000/- per month. My elder son Gurvinder Singh is running a taxi and he also do motor mechanic work. My daughter was teaching computer. Both of them were earning to the tune of Rs.4,000/- per month each since 1994. They were all contributing towards the expenses of house hold expenditure. My wife was also having Istri Dhan and she during the construction of our house, sold her jewellery. We spent together on the construction of the house also. the estimated cost of Criminal Appeal No. 1497-SB of 2005 -4- construction was about Rs.150/- per square feet. I also sold two plots for an amount of Rs.15,000/- and agreement to sell for Rs.1,23,000/-. My wife also took up loan of Rs.2 lacs from her relative Gurdial Singh and another loan of Rs.20,000/- was taken from Puran Singh son of Tara Singh r/o vill.Rajowal. Kuldip Singh is my brother in law. He is running a business of furniture since last 20 years. He purchased the plot himself and also sold it as a plot only. One one katcha room was built in it. His subsequent purchaser constructed the house in the plot. I own about 2-1/2 kilas of agricultural land. My all these sources of income were disclosed to the police, but they deliberately did not consider it. ” In defence, he examined DW-1 Gurvinder Singh, DW-2 Kuldip Singh and closed his evidence by tendering certain documents. I have heard the learned counsel for the parties besides perusing the record with due care and caution. Mr. G.S.Sandhawalia, Advocate, appearing on behalf of the appellant eloquently urged that the learned trial Court has ignored the fact that valuation of the first house was made after the check period on 4.11.1999 and it had been sold to Joginder Singh on 1.1.1999 for a sum of Rs.1,60,000/- though the same had been purchased for Rs.1,50,000/- on 16.4.1998 and as regards the second house, the appellant had taken a loan in Criminal Appeal No. 1497-SB of 2005 -5- the year 1992, whereas the value of the property was assessed in 1994 and, therefore, the valuation was accelerated by huge amount of Rs.5,14,228/-. He further puts that if both these amounts were taken out of the expenditure of the appellant, then there would be no disproportionate income of property to the known sources of income. It is further argued that admittedly the sale deed was in favour of Kuldip Singh and,therefore, merely because the electric connection was in the name of the appellant-Jaswant Singh, would not mean that the property belonged to him as being a close relative and a government servant, the appellant was in a position to help his brother in law for grant of electric connection. It is pressed into service that Gurvinder Singh son of the appellant and the appellant's major daughters were contributing towards the income. This fact has been ignored in its entirety by the learned trial Court. Mr. Sandhawalia further contended that it is in the cross-examination of Kulvir Singh, SDO, PW-14 that he had not seen the title deed of the above said persons regarding the houses. If he had not gone through the same, how it can be said that these houses were the ownership of the alleged persons. He further pointed out that at the fag end of his cross-examination, this witness has admitted that the cost of construction of that type of house in the year 1992 was around Rs.150/- per square feet and if the amount is calculated on its basis, the cost of construction as calculated by this witness, cannot be taken into account. To overcome these submissions, Mr. Tejinder Singh, Deputy Advocate General, Punjab, for the State of Punjab, canvassed at the bar that the report submitted by Kulvir Singh SDO, PW-14 was checked by the Executive Engineer and he agreed therewith and that being so, no holes can be picked in the same. He further urged with full force that the documentary Criminal Appeal No. 1497-SB of 2005 -6- evidence on record fully substantiates the charge against the appellant. On giving a thoughtful consideration to the rival contentions, it emanates that the contentions raised by Mr. Sandhawalia can be hardly countenanced in their entirety for the reasons to be recorded hereinafter. It is not the mere acquisition of property that constitutes an offence under Section 13(e) of the Act, but it is the failure to satisfactorily account for such possession that makes it objectionable in the estimation of law. To substantiate a charge under Section 13(e) of the Act, the prosecution must prove (a) that the accused is a public servant; (b) the nature and extent of the pecuniary resources or property which was found in his possession; (c) it must be proved as to what were his known sources of income that is known to the prosecution; (d) it must prove quite objectively that such resources or property found in possession of the accused were disproportionate to his known sources of income. Once these ingredients are satisfactorily established, the offence of criminal misconduct is complete unless the accused is able to account for such resources or property. To put it differently, only after the prosecution has proved the required ingredients, the burden of satisfactorily account for the possession of such resources or property shifts to the accused. House No. 381, Mohalla Adarsh Nagar, standing in the name of Kuldip Singh has been described as the first house, whereas the house in the name of Jaswant Singh (accused-appellant) and his wife Harjinder Kaur has been described as the second house. First of all,I deem it appropriate to deal with the first house. The appellant has put on record Exh. DA, photostat copy of the sale deed dated 1.1.1999 which purported to have been executed and Criminal Appeal No. 1497-SB of 2005 -7- registered by Kuldip Singh in favour of Joginder Singh for a consideration of Rs.1,60,000/-. As per the prosecution allegations, this house was in fact purchased by the appellant in favour of his brother-in-law Kuldip Singh as a benami transaction. It is to be determined as to how far the allegations of the prosecution are true to this extent. As per evidence of Vikram Nayyar, Revenue Accountant, PW-18, the electric connection in this house is in the name of Jaswant Singh appellant. In his statutory statement recorded under Section 313 of the Code of Criminal Procedure, he has admitted that the electric connection is in his name. He has stated that “ I got the connection at Kuldip Singh's plot in my name at his request as he is my brother-in-law.” He has not apportioned any reason as to why he preferred to get this connection in his own name instead of persuading Kuldip Singh to get the same in his own name if he was the owner of the plot. When appeared as DW-2 Kuldip Singh merely stated that “ I purchased a plot measuring 7-1/4 marla on 16.4.1991 and sold the same in 1999 and I did not raise any construction on that plot.” He has not given any explanation worth the name as to why he asked the appellant to get the electric connection in his name. Furthermore, as per Kuldip Singh's evidence, no construction is existing on the stated plot. If there is no construction, where was the necessity to get the electric connection for the said plot. It is in the evidence of Kulvir Singh SDO, PW-14 that “ I assessed the house standing in the name of Kuldip Singh. The year of construction was 1994. I made the assessment on the basis of Schedule of rates 1970 by taking into consideration the premium fixed for different years by the department. I made the assessment in the year 1999 and thus took into account depreciation for five years in order to evaluate the construction which was made in 1994. The site plan of the Criminal Appeal No. 1497-SB of 2005 -8- house was given to me by the Executive Engineer. I valued that house at Rs.4,01,086/-.” The correct photostat copy of the report is Exh.PR. It is axiomatic from this evidence that he took into account depreciation for five years in order to evaluate the construction made in 1994 and he made the assessment on the basis of Schedule of rates 1970 by taking into consideration the premium fixed for different years by the department. Thus, in my considered view,no fault can be found with the method applied by this witness in evaluating this house. It is in the cross-examination of Gurpreet Deol, the then Superintendent of Police, Vigilance Department, Jalandhar, PW-20 that “ I had personally verified the sale deeds produced before me in respect of the ownership of Jaswant Singh. It is correct that one house is registered in the name of Kuldip Singh, who is brother-in-law of the accused but I believe that it was a benami transaction as Kuldip Singh did not have any known source of income in order to buy that property.” Now, it is to be noticed as to whether Kuldip Singh, DW-2 has accounted for the income from any known source. In his statement as Exh.D-2 he is absolutely silent about any source of income though the appellant in his statutory statement went on to say that he (Kuldip Singh) is running a business of furniture since last 20 years. Had it been so, Kuldip Singh might have produced on record the account books being maintained by him in the regular course of his business. He might have also been an income tax assessee if he was running the business of furniture since last 20 years. The silence of Kuldip Singh with regard to his income from any known source, leads to believe the above extracted cross-examination of Gurpreet Deol (sic) as true and correct. If Kuldip Singh had purchased this plot and raised construction on Criminal Appeal No. 1497-SB of 2005 -9- it from his own income, he would have been the last person to get the electric connection in the name of the appellant. By all probabilities, he would have produced the evidence on record as to from where he had arranged funds for the purchase of this plot or for raising construction on it. He was telling a lie in the witness box when he stated that he did not raise any construction on that plot for the reason that as per evidence of Kulvir Singh SDO, PW-14 who is not inimically disposed towards this witness that House No. 381, Mohalla Adarsh Nagar is standing in the name of Kuldip Singh. If there had been no construction on the plot, House No.381 would have not been allotted in the name of this defence witness. These facts lead to an irresistible conclusion and an escapable inference that this house is in fact the ownership of the appellant and the same has been purchased by him in the name of his brother-in-law Kuldip Singh. As per Gurvinder Singh son of the appellant was cited as a prosecution witness,he was given up as having been won over by the accused-appellant. The apprehension of the prosecution might be true as the son would not be expected to depose against his father in such a case. The sum and substance of his evidence as DW-1 is that the car (referring to car No.PB-33-5156) is owned by him and was got financed by him and he paid the installments. Surjit Ram, PW-2, Transport Clerk has also stated that this car was transferred in the name of Gurvinder Singh son of Jaswant Singh, New Adarsh Nagar, Jalandhar on 11.6.1996. Jagtar Singh, PW-16 has testified that on 30.5.1996, Gurvinder Singh son of Jaswant Singh had taken advance of Rs.1,50,000/- from their Company. The car number was PB-33-5156. It is in his further evidence that Gurvinder Singh paid Rs.1,50,000/- in installments till 31.3.1998 and that the file relating to Criminal Appeal No. 1497-SB of 2005 -10- the advancement of loan is Exh.PX containing ten leaves. Gurvinder Singh has deposed that he is a Taxi Driver. As per Jagtar Singh's evidence, Gurvinder Singh had purchased this car by obtaining loan and the installments thereof have been paid. This fact can be believed for the reason that advancement of loan in his name and payment of the installments of the same by him stand well established on the record. The details of income and expenditure of the appellant is in the following terms :- INCOME 1. Salary during the check period. 2,75,904.00 2. Arrears during the check period. 9,051.00 3. Bonus during the check period. 1,209.00 4. Agriculture income during check period. 1,12,648.00 5. Loan taken by the accused from Nakodar Hind Co-op. Bank, Nakodar during the check period. 25,000.00 6. Loan taken from Panchayat Samiti Rurka. 75,000.00 7. Loan taken from Panchayat Samiti Nakodar. 60,000.00 8. Loan taken from Samra Leasing Ltd. in the name of Gurvinder Singh, son of accused Jaswant Singh. 1,25,000.00 9. Opening balance in A/c No. 2107 in the name of accused in State Bank of Patiala, Nakodar. 526.00 10. Interest in A/c No.2107 during the check period. 1,467.00 11. Interest in A/c No.2107 during the Check period in State Bank of Patiala, Nakodar in the name of daughter of accused,namely,Kamaljit Kaur. 4.00 12. Interest accrued during the check period in account No.13231 in Punjab & Sind Bank, Nakodar, in the name of Hardish Kaur wife and Kamaljit Kaur daughter of the accused. 327.00 ______________ Total: Rs.6,86,136.00 ============= Criminal Appeal No. 1497-SB of 2005 -11- EXPENDITURE: 1. 3/4th portion of salary of the accused amounting to Rs.2,75,904/-during the check period. 2,06,928.00 2. Amount returned to Hindu Co-op. Bank 28,408.00 3. Amount of installments paid to Samra Leasing Ltd. Jalandhar 1,60,000.00 4. Half portion of the amount i.e. 60,000 + 7,500 +601.50 = 68,101.50 regarding purchase of plot of ten Marlas by Jaswant Singh at Nakodar on 29.11.1991. 34,050.00 5. The consideration plot at Nakodar by Hardish Kaur w/o the accused 30,000+3,750+301.50=34,051.50 34,051.50 6. Closing balance of account No.2107 at State Bank of Patiala, Nakodar. 566.25 7. Closing balance of account No.13231 at Punjab & Sind Bank, Nakodar. 291.00 8. Closing balance of account no.3107 at State Bank of Patiala, Nakodar. 304.00 9. Assessment regarding the house Built by accused at Adarsh Nagar, Nakodar. 7,96,378.00 10. Assessment regarding expenses incurred in house built by the accused in the name of Kuldip Singh at Nakodar. 4,01,086.00 11. Amount spent for purchase of Bajaj Chetak Scooter No. PB-33-9169. 21,000.00 12. Amount spent by Jaswant Singh accused for purchase of Maruti Car being No.PB-33-5156 besides loan amount. 40,000.00 _______________ Total: Rs.17,23,063.50 ============== Criminal Appeal No. 1497-SB of 2005 -12- Therefore, the amount mentioned against item no.8 has to be excluded from consideration. It is in the evidence of Gurvinder Singh, DW- 1 that “ my sister Kamaljit Kaur is running a Computer Centre and her income was Rs.5,000/- per month. She was married 1-1/2 years back. My mother is doing the work of stitching. Her income is Rs.3,500/- per month. My father owned a plot in the village which he sold for Rs.15,000/-. My father raised loan of Rs.2,00,000/- from our relative Gurdial Singh. We own 2-1/2 acre of land a village Rajowal from where we got an income of Rs.2,10,000/- from 1993 to 1998. ” It is in his cross-examination that “ the name of the Computer Centre is Pearl Computer Centre. We have no record of that Computer Centre. I do not know what security was given for obtaining the loan from Gurdial Singh. There is no record of our income from the land.” If the daughters of the appellant had been running the alleged Computer Centre, they might have been maintaining the record thereof, whereas Gurvinder Singh went onto say that they have no record of the Computer Centre. Thus, the story with regard to running of Computer Centre by Kamaljit Kaur is rendered unbelievable. Further, it is alleged that the appellant had obtained a loan from his relative Gurdial Singh, who having not been examined in defence, it is very difficult to believe this version. The wife of the appellant has also not been examined to prove that she is steam stressed and her income is Rs.3,500/- per month. Without there being any proof, it is very hard to believe such a version. Amarjit Singh, PW-4 has proved the salary statement, Exh.PX. Charanjit Singh, PW-5 has proved that on 1.2.1992, the accused had obtained an advance of Rs.75,000/- for constructing the house as House Building Loan. Obviously, the income of the appellant during the check period was Rs.6,86,136/-, Criminal Appeal No. 1497-SB of 2005 -13- whereas his expenditure was Rs.17,23,063.50. As per item no. 12 in the column of expenditure, a sum of Rs.40,000/-was spent by the appellant for the purchase of a Car. If the same is excluded, as it has been held that this car was purchased by his son by obtaining loan and installments of the same were also paid by him, despite that there is a difference of Rs.9,96,927.50 in his income and expenditure. He has not filed any income tax return so as to justify this difference in his income and expenditure. It is also noteworthy that he has not produced and proved on record the permission sought from the competent authority with regard to the purchase of first house, though as per Civil Service Rules, an employee is required to obtain permission from the competent authority before the purchase of movable/immovable property. There is no gain saying the fact that the appellant is a public servant. In view of the above discussion, it is held that the prosecution has been able to prove that the pecuniary resources/property found in possession of the appellant were disproportionate to his known sources of income. Thus, the burden of satisfactorily accounting for the possession of such resources or property shifts on to the appellant. He has not discharged this onus in a manner as desired by law. Sequelly, it is held that the prosecution has been able to bring home guilt against the appellant under Section 13(e) of the Act. As such, no interference is warranted in the findings returned by the learned trial Court holding the appellant guilty under Section 13(e) ibid. So, the conviction is upheld. The minimum sentence prescribed by the legislature for this offence is one year. The appellant has been undergoing the agony of trial since 2000. Therefore, taking into consideration the entirety and Criminal Appeal No. 1497-SB of 2005 -14- circumstances of the case, the sentence is reduced to one year while maintaining the fine as well as its default clause. With this modification, this appeal fails and is dismissed. ( HARBANS LAL ) JUDGE 4th April, 2008 RS