Crl.Appeal No. 641-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.641-SB of 2002 Date of decision:6.10.2010 Paramjit Kaur … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.Kanwaljit Singh, Sr.Advocate, with Ms.Harpreet, Advocate, for the appellant. Mr.Arshvinder Singh, DAG, Punjab. … JORA SINGH, J. This appeal has been instituted by Paramjit Kaur widow of Pritam Singh against the judgment of conviction and order of sentence dated 1.4.2002 passed by Special Judge, Sangrur, in Sessions Case No. 10 dated 26.11.1997, arising out of FIR No.39 dated 12.6.1997 under Sections 7/13 (2) of Prevention of Corruption Act (for short `the Act’), PS Vigilance Bureau, Patiala. By the said judgment, she was convicted under Section 13(2) of the Act and sentenced to undergo RI for two years and to pay a fine of Rs.1,000/-, in default of payment of fine, to further undergo RI for four months. Prosecution story, in brief, is that Gurmail Singh was married with Parvinder Kaur. Sukhdev Singh was the brother-in-law of complainant Gurmail Singh. One month earlier to the occurrence, Sukhdev Singh came and informed the complainant that he had sold land. Certified copies of sale deeds were required to show the same to his counsel. On number of times, Crl.Appeal No. 641-SB of 2002 2 he had gone to Bhawanigarh Tehsil to get the certified copies of sale deeds but he failed to receive the same because he was illiterate. Sukhdev Singh had requested him to get the certified copies of sale deeds. On 21.5.1997, he had applied in the office of Naib Tehsildar, Bhawanigarh, for getting certified copies of sale deeds. He had met Paramjit Kaur, Registration Clerk, on number of occasions but she was avoiding to supply certified copies of sale deeds on one pretext or the other. On 11.6.1997, again he had met Paramjit Kaur. She replied that certified copies of sale deeds were ready for many days but same were to be handed over to him against payment of Rs.500/- as illegal gratification. There was settlement for Rs.400/-. By making false excuse to bring payment, he came back from the office of Registration Clerk. Registration Clerk had directed him to come present with payment of Rs.400/- on 12.6.1997. Today, i.e., 12.6.1997, he had disclosed to Pushpinder Singh that accused was demanding illegal gratification for supply of certified copies of sale deeds. Then complainant along with Pushpinder Singh had gone to the office of Vigilance Bureau, Sangrur. Statement of complainant (Ex.PL) dated 12.6.1997 was recorded at 11.30 AM. After making endorsement, statement was sent to the concerned police station, on the basis of which, formal FIR was recorded. Four currency notes, each of the denomination of Rs.100/-, were handed over to Mandeep Singh, DSP, Vigilance Bureau, Sangrur. Number of currency notes were noted by the DSP in memo (Ex.PN). After applying phenolphthalein powder to the currency notes, same were handed back to Gurmail Singh with the instructions to pay only those currency notes to the accused on demand. Demonstration was given to Gurmail Singh and Pushpinder Singh by preparing a solution by adding sodium carbonate Crl.Appeal No. 641-SB of 2002 3 in a glass of water. Colour of solution did not change. Then after applying phenolphthalein powder on a piece of paper, paper was dipped into the same solution. Then its colour became light pink. Solution and paper were destroyed after demonstration. Two lady police officials, namely, ASI Hardial Kaur and Constable Neelam Kumari, were joined and instructions were given to the complainant to hand over marked currency notes on demand by the accused. Pushpinder Singh was joined as shadow witness and was directed to accompany the complainant and hear the conversation amongst the accused and complainant regarding demand and payment of illegal gratification and give the agreed signal to the raiding party after receipt of bribe money. Bodh Raj, an official of Water Supply and Sewerage Board, Sunam, was also joined in the raiding party. Raiding party had gone towards the office of Sub Registrar, Bhawanigarh. As per planning, Gurmail Singh and Pushpinder Singh were sent to the office of the accused, whereas remaining raiding party remained standing outside the office in scattered position. Gurmail Singh had gone to the office of accused and demanded certified copies of sale deeds. Then accused enquired about the amount. Complainant had handed over marked currency notes to the accused. Pushpinder Singh gave agreed signal to the raiding party. Raiding party had gone to the office of the accused. Gurmeet Singh, Naib Tehsildar, was also summoned. A glass of water was arranged, in which sodium carbonate was added. Then colour of solution did not change. After that, hands of the accused were got washed in the solution. Then its colour became light pink. Solution was transferred into nip and then sealed by the DSP with seal bearing impression `AS’. Sealed parcel was taken into police possession vide memo (Ex.PN) attested by the witnesses. Currency notes Crl.Appeal No. 641-SB of 2002 4 were recovered from the almirah lying in the office of the accused. Number of currency notes recovered were got tallied through Bodh Raj, PW, with the number already noted in the memo. Number of recovered currency notes had tallied with the numbers noted in the memo. Recovered currency notes were taken into police possession vide memo (Ex.PO) attested by the witnesses. Lady police officials had conducted personal search of the accused. Personal search memo (Ex.PQ) was prepared. Applications for supply of certified copies of sale deeds in the file placed on the table of the accused were recovered and taken into police possession vide memo (Ex.PP) attested by the witnesses. After receipt of report of FSL and obtaining sanction to prosecute the accused, challan was presented in Court. Accused was charged under Section 13 of the Act, to which she pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Gurbans Singh stated that Paramjit Kaur was appointed as Clerk vide order (Ex.PA) dated 5.12.1994. PW2 Raman Kumar proved sanction (Ex.PC) to launch prosecution against the accused. PW3 Manjit Singh, Naib Tehsildar, stated that four applications were submitted by the complainant to get certified copies of sale deeds. Applications are Ex.PD, Ex.PE, Ex.PF and Ex.PG. Certified copies of sale deeds were to be supplied by the accused. PW4 Shankar Dass, retired Registration clerk, stated that Ex.PD/1, Ex.PE/1, Ex.PF/1 and Ex.PG/1 were the copies of sale deeds. Crl.Appeal No. 641-SB of 2002 5 PW5 MHC Gurbhej Singh, PW6 ASI Ram Kumar and Constable Surinder Singh tendered their affidavits (Ex.PH, Ex.PJ and Ex.PK), respectively. PW8 Gurmail Singh is the complainant. He has supported the prosecution story by saying that illegal gratification was demanded by the accused. Rs.400/- was paid as illegal gratification. Bribe money was recovered from the accused. PW9 Pushpinder Singh as shadow witness has supported the version of the complainant. PW10 Gurmeet Singh, Naib Teshildar, stated that he was joined by the police party at the time of raid. Bodh Raj was also with the party. He has also supported the versions of complainant and shadow witness. PW11 Mandeep Singh, now SP, was the Investigating Officer. Report of FSL (Ex.PU) was tendered into evidence. After close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. She denied all the prosecution allegations and pleaded to be innocent. Defence version of the appellant was that under rules, copies of sale deeds were not to be supplied by her. Copies were supplied as per orders of Naib Tehsildar and by Naib Tehsildar himself. She was simply to prepare certified copies of registered sale deeds. Gurmail Singh and Pushpinder Singh came to her few days earlier when they were under the influence of liquor. They had misbehaved with her and were reprimanded by her. They were threatened that she will report the matter to the police. Crl.Appeal No. 641-SB of 2002 6 After that, conspiracy was hatched by them to get her falsely implicated in this case with the connivance of vigilance officials. Opportunity was given to lead defence, but no defence was led. After hearing learned PP for the State, learned defence counsel for the appellant and from the perusal of evidence on the file, appellant was convicted and sentenced as stated aforesaid. I have heard learned defence counsel for the appellant, learned State counsel and have gone through the evidence on file. Learned counsel for the appellant argued that on 12.6.1997, appellant was under transfer. She was not to supply certified copies of sale deeds. In fact, Naib Tehsildar was competent to supply certified copies of sale deeds. There was no demand of illegal gratification. Independent witnesses were not joined, particularly when witnesses were available. Bribe giver and shadow witness are the accomplice. Nothing on the file that DSP, Vigilance Bureau, had offered his search and after that recovery was effected. Shadow witness had not heard the conversation amongst the appellant and complainant regarding demand of payment of illegal gratification. Recovery of currency notes was from the almirah and not from the person of the appellant. Almirah was not under the control of the appellant. Almirah was simply lying in the room of the appellant. There were number of other employees, who were sitting in the same room. When appellant was under transfer, then there was no question to demand illegal gratification. In case on 21.5.1997 or 11.6.1997, appellant had demanded illegal gratification, then matter should have been brought to the notice of the police or Naib Tehsildar, but no explanation why matter was not brought to the notice of police or Naib Tehsildar. In fact, few days earlier to the Crl.Appeal No. 641-SB of 2002 7 occurrence, complainant and shadow witness had gone to the office of the appellant. They had misbehaved with the appellant and were reprimanded by the appellant. After that, story was concocted by the complainant and shadow witness with the connivance of police to implicate the appellant. Learned counsel for the appellant cited the following authorities:- “1. 2009(3) RCR (Crl.) 370, A. Subair vs. State of Kerala, 2. 2009(1) RCR (Crl.) 403, Karnail Singh vs. State of Punjab, 3. 2004(1) RCR (Crl.)368, Sarwan Singh vs. State of Punjab, 4. 1987 (1) RCR (Crl.) 672, Gurnam Singh vs. State of Punjab, 5. 1993 (2) RCR (Crl.)608, Ramesh Kumar vs. State of Haryana, 6. 2009(4) RCR (Crl.) 608, Suresh Kumar vs. State of Haryana, 7. 2010 (1) RCR (Crl.) 892, Harbans Singh vs. State of Punjab, 8. 2010(2) RCR (Crl.) 445, Raghu Nath Bansal vs. State of Punjab, 9. 2003(2) RCR (Crl.) 541, Subhash Parbat Sonvane vs. State of Gujrat, and 10. 2010(2) RCR (Crl.) 553, Banarsi Dass vs. State of Haryana.” Learned State counsel argued that applications were moved for supply of certified copies of sale deeds. Certified copies of sale deeds were Crl.Appeal No. 641-SB of 2002 8 ready but appellant was not supplying the same without payment of illegal gratification. There was settlement for Rs.400/-. Request of the appellant was to visit her office next day with bribe money. On 12.6.1997, matter was reported to the police. Then raid was conducted. Illegal gratification received by the appellant was recovered. Firstly, there was a demand of illegal gratification for supply of certified copies of sale deeds, then acceptance of illegal gratification and lastly, illegal gratification was recovered in the presence of independent witness. First submission of learned counsel for the appellant was that appellant was to be presumed innocent unless guilt is proved. Earlier, appellant was appointed on compassionate ground. When appellant was under transfer, then there was no idea to demand illegal gratification. After going through the evidence on file, I am of the opinion that submission of learned counsel for the appellant carries little weight. Undisputedly, appellant is presumed to be innocent unless guilt is proved. In A.Subair’s case (supra), Hon’ble Supreme Court held that prosecution has to prove the charge beyond reasonable doubt like any other criminal offence and the accused should be considered innocent till it is established otherwise by proper proof of demand and acceptance of illegal gratification, the vital ingredient necessary to be established to procure a conviction for the offence under consideration. In the present case, land was sold by Sukhdev Singh. Sukhdev Singh being illiterate had gone to the tehsil complex, Bhawanigarh, for getting certified copies of sale deeds, which were to be shown to his counsel, but he failed to get the same. Then complainant was requested to get the certified copies of sale deeds. Applications were moved on Crl.Appeal No. 641-SB of 2002 9 21.5.1995 for getting certified copies of sale deeds and for that purpose, complainant had met the appellant on number of occasions but copies were not supplied on one pretext or the other by the appellant. On 11.6.1997, complainant had met the appellant for supply of copies, then appellant had demanded illegal gratification but complainant was not willing to pay illegal gratification. By making false excuse to bring payment, complainant had contacted shadow witness. Shadow witness directed the complainant to get the appellant arrested by contacting Vigilance Department. Before present occurrence, complainant party had no enmity with the appellant. No documentary proof on the file that appellant had received transfer order but on the day of occurrence, appellant was present in her office while serving as Registration Clerk. Next submission of learned counsel for the appellant was that independent witnesses were not joined. Number of witnesses were present but no explanation why independent witnesses were not joined. Non- joining of independent witnesses is fatal. Complainant and shadow witness are very much interested in the success of this case but submission of learned counsel for the appellant is without any evidentiary value because Gurmail Singh, complainant, had applied for supply of certified copies of sale deeds on 21.5.1997. Till 11.6.1997, certified copies of sale deeds were not supplied to the complainant. On 11.6.1997, complainant had contacted the appellant for supply of certified copies of sale deeds. Reply of the appellant was that certified copies of sale deeds were ready but same were not to be handed over to him without payment of illegal gratification. When appellant had demanded illegal gratification, then matter was brought to the notice of Pushpinder Singh. Pushpinder Singh was not related to the Crl.Appeal No. 641-SB of 2002 10 complainant nor he was inimical towards the appellant. Bodh Raj was also with the police party. Naib Tehsildar was also joined by the police party. If there was no raid and no recovery, then Bodh Raj could easily be produced in defence. In Karnail Singh’s case (supra), accused was working as Patwari-Prosecution version that accused demanded Rs.250/- from complainant for issue a copy of revenue record- Raid conducted by police and Rs.250/- recovered from him by Investigating Officer-Inspector failed to offer himself for search before conducting the search of the accused- Held that not safe to convict the accused merely on the statement of Investigating Officer and other official witnesses when there are material discrepancies, and defence version stands proved on record. In Sarwan Singh’s case (supra), raid conducted by police- Recovery of bribe money (Rs.500/-)- Accused was acquitted on the ground that mere recovery is not enough when no independent witness to prove demand of money because bribe giver is normally to be treated as accomplice. Independent witness is required to corroborate testimony of complainant and shadow witness. In Raghu Nath Bansal’s case (supra), no independent examined- Accused (SDO in electricity board) alleged to have accepted illegal gratification of Rs.2000/-- Official witness and police official reported the bribe money was recovered from the accused, but no independent witness examined- Held, mere recovery of the tainted currency notes from the accused not sufficient to convict accused under Sections 7 and 13(2) of the Act. Crl.Appeal No. 641-SB of 2002 11 But in the present case, complainant had no enmity with the appellant. Shadow witness was neither related to the complainant nor inimical towards the appellant. Gurmeet Singh, Naib Tehsildar, was also joined by the police party. Shadow witness was sent along with complainant to the office of the appellant. Appellant had enquired from the complainant as to whether he had brought payment or not because certified copies of sale deeds were ready. Reply of the complainant was that he had brought payment. Then payment was made to the appellant and bribe money was kept in the almirah lying in the room of the appellant. Shadow witness had supported the version of the complainant. After receipt of illegal gratification when tainted currency notes were kept in the almirah, then agreed signal was given by the shadow witness. Raiding party had gone to the office of the appellant. Two lady police officials were also with the party. Recovery of tainted currency notes was not from the person of the appellant but same were recovered from the almirah, which was lying near the table of the appellant in the same room. No defence that almirah was not in the custody of the appellant or some other official was the custodian of that almirah. If we presume that appellant was under transfer as per statement of Naib Tehsildar, then question is whether appellant had demanded illegal gratification and the same was recovered by the raiding party. Certified copies of sale deeds were prepared by the appellant but as per order of Naib Tehsildar, same were to be supplied to the complainant. Appellant when examined under Section 313 Cr.P.C., then failed to state that on 12.6.1997, she had relinquished the charge. Rather stated that under rules, she was not to supply the copies. Copies were supplied as per order of Naib Tehsildar. She was simply to prepare the copies of sale deeds. Few Crl.Appeal No. 641-SB of 2002 12 days earlier to the occurrence, complainant and shadow witness came to her office. There was some altercation with her and complainant and shadow witness had misbehaved with her. Appellant had threatened the complainant party to report the matter to the police. But if few days earlier to the occurrence, complainant and shadow witness had gone to the office of the appellant and had misbehaved with her, then appellant should have reported the matter to the police. If due to certain reasons, she was not to report the matter to the police, then she could easily report the matter to Naib Tehsildar. No question was put to Naib Tehsildar that few days earlier to the occurrence, complainant and shadow witness had an altercation with the appellant. They had misbehaved with the appellant. Then appellant had reprimanded them and threatened to report the matter to the police. As discussed earlier, if there was no report to the police, then, at least, a question could easily be put to the Naib Tehsildar that there was some altercation few days earlier to the occurrence. Statement of appellant under Section 313 Cr.P.C. rather shows that complainant party was demanding certified copies of sale deeds but same were not being supplied. Due to this reason, there was some altercation amongst the parties. No case of the appellant that personally Naib Tehsildar was to supply certified copies of sale deeds to the complainant party. Evidence rather shows that as per order of Naib Tehsildar, certified copies of sale deeds were to be supplied to the complainant, prepared by the Registration Clerk. Case of the complainant party is to the effect that applications were given for supply of certified copies of sale deeds. Certified copies of sale deeds were prepared by the appellant but same were not being supplied without payment of illegal gratification. If there was no demand of illegal gratification, then on Crl.Appeal No. 641-SB of 2002 13 11.6.1997, appellant could easily supply certified copies of sale deeds or report the matter to the police or Naib Tehsildar, if there was some altercation. Naib Tehsildar while appearing as PW10, then did not state a word that he was to personally supply certified copies of sale deeds to the concerned party. Naib Tehsildar stated that there was no complaint either by the complainant or appellant. Registration Clerk prepares the copies. After preparation at the time of delivery of copies, only the signatures of Naib Tehsildar are obtained. No one came to him to supply the copies. Naib Tehsildar did not state a word that at the time of raid, appellant was not serving as Registration Clerk or as per transfer order, she had relinquished the charge. No doubt, bribe giver is normally to be treated as accomplice but to ignore the statements of bribe giver and shadow witness, there must be some reason. Defence version of the appellant is that few days earlier to the occurrence, complainant and shadow witness had some altercation with her but in support of this allegation, no evidence, either oral or documentary. No complaint to the police or Naib Tehsildar. No official came forward to state that few days earlier to the occurrence, appellant had some altercation with the complainant party regarding preparation of certified copies of sale deeds. When recovery of marked currency notes was from the almirah, which was under the control of the appellant, then there was no idea to offer himself for search before conducting personal search of the appellant. Next allegation of learned counsel for the appellant was that Bodh Raj was with the party but he was not examined. Due to non- examination of Bodh Raj, story is not genuine one. Crl.Appeal No. 641-SB of 2002 14 In Ramesh Kumar’s case (supra), Recovery of bribe money- Trap witness an employee of complainant- Complainant himself performed duty of shadow witness- Independent witness not supporting the prosecution story-Complainant not an honest businessman- Accused given benefit of doubt and acquitted. But this authority is not helpful to the appellant because shadow witness was not an employee of the complainant. Complainant and shadow witness were not inimical towards the appellant. Naib Tehsildar was with the party and has supported the prosecution story regarding recovery of bribe money. Bodh Raj was not examined by the prosecution but when there are number of witnesses, then all are not required to be examined. Quality of evidence is to be seen and not quantity of evidence. If appellant was very much sure that there was no raid or demand or acceptance of illegal gratification, then Bodh Raj could easily be produced in defence. If appellant being lady was not in a position to examine Bodh Raj, who was a private witness, then any employee of Revenue Department serving with her, present in the office on 12.6.1997 or few days earlier to the incident, could easily be produced in defence to state that appellant had some altercation with the complainant party regarding supply of certified copies of sale deeds. In the cited authority, shadow witness was an employee of the complainant and complainant was not an honest businessman, then story was ignored, but in the present case, position is different. Shadow witness was not an employee of the complainant. Gurmeet Singh, Naib Tehsildar, was not inimical towards the appellant. No reason to disbelieve the complainant, shadow witness and Naib Tehsildar. Crl.Appeal No. 641-SB of 2002 15 Learned counsel for the appellant argued that in the site plan (Ex.PS), Point `A’ is the place where appellant was sitting, Point `B’ is the place where complainant was sitting, Point `C’ is the place where almirah was lying and Point `D’ is the place from where shadow witness gave agreed signal to the raiding party. While standing at Point `D’, shadow witness cannot hear the conversation amongst the appellant and complainant. In Suresh Kumar's case (supra), accused was working as Patwari and demanded Rs.300/- as illegal gratification. Trap was laid and tainted currency notes were recovered from the shoes of accused, but story was ignored on the ground that demand of bribe money not proved. Shadow witness was standing at such a distance where he could not