IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH Criminal Appeal No. 929-SB of 1997 Date of decision: 11th March, 2010 Mohan Lal … Appellant Versus State of Punjab … Respondent CORAM: HON'BLE MR. JUSTICE KANWALJIT SINGH AHLUWALIA Present: Mr. Sukhbir Singh Mattewal, Advocate with Mr. Vinod S. Bhardwaj, Advocate for the appellant. Mr. J.S. Bhullar, Assistant Advocate General, Punjab for the State. KANWALJIT SINGH AHLUWALIA, J. Present appeal is directed against the impugned judgment of conviction and order of sentence dated 19th November, 1997 rendered by Special Judge, Hoshiarpur, who found the appellant guilty of offence under Section 13(2) read with Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as, ‘the Act’) and sentenced him to undergo rigorous imprisonment for 1 ½ year and to pay a fine of Rs.2000/-, in default of payment of fine to further undergo rigorous imprisonment for three months. In June, 1994, Mohan Lal appellant was posted as a Junior Engineer, Panchayati Raj at Talwara falling within the district Hoshiarpur. The charge formulated against the appellant was that on 21st June, 1994, in the area of Purana Talwara, while posted as Junior Engineer, Panchayati Raj, he demanded and accepted Rs.1000/- as illegal gratification other than the legal remuneration by abusing his official Criminal Appeal No.929-SB of 1997 position for issuance of utilization certificate to Anek Singh Sarpanch. Since the appellant had denied the charge and claimed trial, he was tried by the Court of Special Judge, Hoshiarpur. For decision of this appeal, it is necessary to notice brief facts of the case. Anek Singh PW-4 in June, 1994 was elected as Sarpanch of village Kulian Lubana falling within the jurisdiction of district Hoshiarpur. In the year 1993, Government had sanctioned a grant of Rs.45,000/- for construction of streets and drains. In the statement Ex.PF, made by Anek Singh PW-4 to Malkiat Singh, Inspector (Vigilance) PW-9, it was stated that the complainant in consonance with the Government rules, got the streets and drains constructed. The complainant Sarpanch had to obtain a utilization certificate of the amount spent after checking the construction work carried out by the appellant. The complainant approached the accused appellant and was told that the utilization certificate was not issued in routine, but for the same an amount of Rs.2000/- was required to be paid. At that juncture, the complainant replied to the accused appellant that for issuance of utilization certificate, no Government fee was prescribed and it was a joint work of the village, therefore, no personal favour to the complainant was to be bestowed. The complainant also told that the financial health of the Panchayat was not sound. A day before the registration of FIR, i.e. on 20th June, 1994, the complainant again approached the accused and presented necessary documents for issuance of the utilization certificate. Earlier, the accused refused to entertain the complainant, but later-on agreed to issue the certificate against the payment of Rs.1000/-. Since the complainant was reluctant to pay any amount, so he approached Manjit Singh, Inspector, Police Station Vigilance Bureau, Punjab, Hoshiarpur (PW-9) on 21st June, 1994 at 8.30 p.m. 2 Criminal Appeal No.929-SB of 1997 To cut short the details, the procedure prescribed was followed, complainant had offered ten currency notes, the numbers of which were noted and memo Ex.PF was prepared. Chemical was applied upon the currency notes and the same were given to the complainant. A memo Ex.PG to this effect was prepared. Thereafter, a demonstration was arranged and the same was noticed in memo Ex.PH attested by the complainant and Kartar Singh. A raiding party was constituted. Kartar Singh PW-5 had to act as a shadow witness. Kishan Chand PW-7 was called from the office of Deputy Commissioner to act as an independent witness. Instructions were issued as to how, after demand and acceptance of the amount, a signal was to be given to effect recovery from the accused. Anek Singh Sarpanch complainant PW-4, along with Kartar Singh shadow witness, approached the accused. The accused questioned the complainant as to whether the amount has been arranged. On the positive affirmation by the complainant, the accused asked them to accompany him from his office to the nearest tea shop, where the amount of Rs.1000/- was handed over to the accused. Kartar Singh shadow witness gave a signal, upon which the police party arrived at the spot. On seeing the police party, the said amount was thrown by the accused on a floor and the police party caught hold of the accused. A glass of water was arranged and the accused was made to wash his hands in the solution. Colour of the solution turned into light Pink and the same was put in a nip Ex.P2. Possession memo of the same Ex.PJ was prepared. The memo was attested and the seal was handed over to Kishan Chand PW-7. The currency notes were picked up by Kishan Chand and numbers of the same were tallied with the memo already prepared. A recovery memo Ex.PG was drawn. The currency notes Ex.P3 to P12 were taken into 3 Criminal Appeal No.929-SB of 1997 possession vide memo Ex.PK. The utilization certificate and measurement books were also taken into possession. Statements of the witnesses were recorded by the Investigating Officer, who had also prepared the site plan Ex.PN. After completion of the investigation, report under Section 173 Cr.P.C. was submitted against the appellant. Prosecution examined nine witnesses. Constable Sucha Singh PW-1 had sworn affidavit Ex.PA. This witness had carried the solution in vial, with which the accused had washed his hands, to the Forensic Science Laboratory. Harnam Singh PW-2 stated that on 17th July, 1992, Mohan Lal appellant was transferred from Babial to Talwara in the office of Block Development and Panchayat Officer as Junior Engineer. Mukhtiar Singh, Panchayat Secretary PW-3, who had produced the record before the Vigilance Bureau, resiled from his previous statement and was declared hostile. Since this witness was amenable to the accused to support the defence version, in cross examination he stated as under: “It is correct that any work completed by the Gram Panchayat was being measured by J.E. and entry was made in the Measurement Book. After entering into the measurement book I prepared the account of the work done and thereafter the same was submitted to our Superintendent. It is correct that Supdt. entered the estimate in his register then he submitted before the BDO. No objection certificate was prepared by the Supdt. under the signatures of the B.D.O. The said certificate is sent to the J.E., who verified according to the measurement book and then sent his report to the B.D.O. No objection certificate was to be issued only by the B.D.O. I cannot tell the name of the register which is maintained by the Superintendent. After the report of the J.E., 4 Criminal Appeal No.929-SB of 1997 B.D.O. issued the utilization certificate. I am working in the department for the last 20 years.” Anek Singh complainant appeared as PW-4. He supported the prosecution case regarding all the aforementioned details and deposed as to how the demand was made by the accused on 20th June, 1994, 21st June, 1994 and how the raiding party was constituted, acceptance of the amount by the accused, after receipt throwing of the bribe amount on the ground and recovery of the same. However, in cross examination this witness admitted that the police party had given a slap to the accused and had dragged him to the Police Station. This witness further stated that the currency notes were lifted by Kishan Chand PW from the tea stall, i.e. the place of occurrence and the tea vendor was present in his shop when the accused was apprehended. Much arguments have been advanced by counsel for the appellant after he had highlighted the following line from the cross examination of Anek Singh PW-4: “I handed over the currency notes immediately to the accused before his demand.” Another important line from the cross examination of this witness, which is required to be noticed, is: “It is correct that the entry in the measurement book regarding the work done was made in October, 1993 by the accused. I got prepared the utilization certificate from the Secretary of the Panchayat. Mukhtiar Singh PW was the Secretary of the Panchayat.” Kartar Singh shadow witness appeared as PW-5. He fully supported the prosecution case and the defence could not gain anything to its advantage. 5 Criminal Appeal No.929-SB of 1997 Kishan Chand PW-7, who had joined the raiding party as an independent witness, had not supported the prosecution case and was declared hostile. Prem Singh Superintendent, PW-6 proved grant of sanction to prosecute the appellant as Ex.PM. Constable Tarsem Singh PW-8 tendered his affidavit Ex.PO. Malkiat Singh PW-9, who on 21st June, 1994 was posted as Inspector (Vigilance), deposed regarding registration of the case and all material aspects of the investigation. Thereafter, prosecution closed its evidence and statement of the accused under Section 313 Cr.P.C. was recorded. All incriminating circumstances put to the accused were denied and the accused appellant gave the following version: “I am innocent. I have been falsely implicated in this case. I did not demand any illegal gratification from the complainant. The amount was forcibly given to me and the said notes fell down on the ground. Police came and the false case has been registered against me. In fact the work of the Sarpanch was not satisfactory. I made complaints against him to the BDO. Hence he got me falsely implicated in this case. I was given beatings by the police at that time.” In defence, Dr.H.S. Sandhu appeared as DW-1. He had examined the accused on 22nd June, 1994 at 1.40 p.m. This witness had noticed one black contusion on the body of the appellant. Mandip Puri, tea vendor appeared as DW-2. He stated that in June, 1994 at about 1.30 p.m., the accused had come to his shop to take tea. Two persons came on the table of the accused and offered to give him money. The accused refused to accept the same and gave a push. The currency notes fell down on the ground. Immediately, the police came in plain clothes and asked the accused to pick the money from the floor. 6 Criminal Appeal No.929-SB of 1997 On refusal, they gave beatings and took the accused to the Police Station. This witness further stated that the accused had not demanded any amount. Pardeep Kumar Clerk from the office of Block Development and Panchayat Officer, Talwara appeared as DW-3 and stated that on 17th June, 1994, an application was submitted by the accused for grant of leave for 20th June, 1994. Thereafter, defence evidence was closed. Mr.Sukhbir Singh Mattewal, Advocate appearing for the appellant, has relied upon the instructions issued by the Secretary to Government of Punjab, Rural Development and Panchayats Department, Chandigarh regarding issue of utilization certificate. Since much emphasis has been laid upon these instructions, it will be apposite here to reproduce the relevant portion of the same: “XIII. Issue of Utilization Certificate of grant by Gram Panchayat.- (i) Sarpanch and Panchayat Secretary shall prepare five copies of utilization certificates within 15 days of the utilization of grants in the enclosed APPENDIX-VI. They should maintain file for each grant separately which should contain the following documents:- (a) Copy of sanction order of the grant. (b) Copy of the estimate giving technical sanction. (c) Details of expenditure. (d) Measurement Book numbers with name of Junior Engineer. (e) Resolution of Gram Panchayat regarding completion of work/utilization of grant. (f) Consumption statement of material. (g) Copy of utilization certificate. (ii) Utilization certificates shall be countersigned by the concerned Block Development and Panchayat Officer who will check the following before signing the same:- (a) that the work has been seen on the spot duly completed. 7 Criminal Appeal No.929-SB of 1997 (b) that the details of expenditure of the work completed as recorded in the Muster Roll/Work Register/Cash Book Stock Register (Material at site register) has been maintained by the Panchayat Secretary concerned. (c) that the record of measurements of work done has been kept and that final Muster Roll has been verified by the Junior Engineer and checked by the Sub Divisional Officer (Panchayati Raj) and expenditure is within 5% of the sanctioned estimates. (d) that Panchayat has maintained all relevant record in a file. Block Development and Panchayat Officer shall send the utilization certificates to the sanctioning authority with a copy to Gram Panchayat and Zila Parishad concerned after countersignatures. One copy of such certificates shall be kept in his office.” Following arguments have been raised before me: (a) From the testimony of DW-3 Pardeep Kumar Clerk, it is apparent that on 20th June, 1994, the appellant was on leave, therefore, the testimony of PW-4 Anek Singh that on 20th June, 1994, demand was made, is belied from the documentary evidence. (b) Pardeep Kumar Clerk DW-3 had stated that on 18th October, 1993, about six months before the occurrence, present appellant had submitted a letter Ex.DC against the Sarpanch PW-4 Anek Singh complainant. This letter was addressed by the accused to the Block Development and Panchayat Officer, Talwara and it was stated therein that construction of 62 outfall drains in the village undertaken by the 8 Criminal Appeal No.929-SB of 1997 Sarpanch was not in consonance with the procedure prescribed, the material used was sub-standard and many irregularities regarding purchase of material has been committed. Therefore, it has been stressed that issuance of this letter had caused annoyance to the complainant and he was inimical towards the appellant. Therefore, the testimony of Anek Singh complainant Sarpanch PW-4 is to be ignored. (c) Reliance has been placed upon ‘Amrit Lal v. State of Punjab’ 2006(3) RCR (Criminal) 796 to contend that no reliance can be placed upon the uncorroborated testimony of the complainant. (d) It is further contended that the complainant – bribe giver is to be treated as an accomplice and the Court should look for corroboration from the testimony of independent witness. In support of this contention, a judgment rendered by this Court in ‘Sarwan Singh v. State of Punjab’ 2004(1) RCR (Criminal) 368 has been relied upon. The instructions, which have been reproduced in the earlier part of this judgment, have been pressed into service to say that it was not a function of the appellant to issue utilization certificate, therefore, there was no occasion for the appellant to demand the alleged amount. (e) Lastly, it has been urged that the prosecution has miserably failed to prove the demand, acceptance and recovery of amount from the accused appellant. It is 9 Criminal Appeal No.929-SB of 1997 stated that the amount was picked up from the ground, therefore, the same was not accepted and no recovery was effected from the appellant. I have given my thoughtful consideration to the submissions made before me. I am constrained to reject all these submissions, as they present only one side of the picture. A perusal of the instructions shows that the utilization certificate can only be issued after the measurement book and the final muster roll are verified by the Junior Engineer. A perusal of the FIR reveals that the complainant has stated that he had presented the papers for checking to the accused for issuance of the utilization certificate. Issuance of the utilization certificate was dependent upon an important role to be played by the appellant. The checking and verification was to be carried by him and after he had appended a note to this effect, utilization certificate could be issued. Therefore, the cross examination of PW-3 Mukhtiar Singh, which has been reproduced above, specifically states that the certificate is sent by the Junior Engineer and verified according to the measurement book and then the Junior Engineer has to send his report to the Block Development Officer. In the present case, the independent witness had resiled from his previous statement and had not supported the prosecution. The trial Court noticed the fact that when the independent witness came to depose, he had retired from the service. Be that as it may, the corroboration is available from the testimony of hostile witness also. This witness had stated that the measurement book produced by the accused was taken into possession vide memo Ex.P2. This witness had further stated that Ex.PJ was bearing his signatures and he was asked by the Vigilance Inspector that currency notes are lying on the ground. The corroboration to the testimony of Anek Singh complainant PW-4 is available from the testimony of Kartar Singh 10 Criminal Appeal No.929-SB of 1997 PW-5 and Inspector Malkiat Singh PW-9. Ex.DC was submitted by the accused in October 1993. For issuance of utilization certificate, verification was not being carried by the accused, therefore, the statement of Anek Singh complainant PW-4 is truthful when he testified that the amount of bribe was demanded by the accused. The fact that the appellant had proceeded on leave on 20th June, 1994, was not brought to anybody’s notice till the defence witness Pardeep Kumar Clerk DW-3 appeared in the Court. In case the accused had proceeded on leave on 20th June, 1994, immediately this fact ought to have been brought to the notice of the higher officials or the Deputy Superintendent of Police/Superintendent of Police by filing a representation. No such document has been produced on the record. It cannot be ruled out that the appellant had proceeded on leave on 20th June, 1994 was a made up affair. Taking the whole gamut of the case and the larger perspective into consideration, this Court is of the view that prosecution has proved the case against the accused appellant. In the present case, occurrence had taken place in the year 1994. About 16 years are going to elapse. Taking into consideration that the appellant has suffered a protracted trial, this Court is of the view that the sentence awarded upon the appellant by the trial Court can be reduced from 1 ½ year to 1 year rigorous imprisonment, i.e. the minimum prescribed under the Act. With the modification in sentence ordered above, present appeal is disposed of. [KANWALJIT SINGH AHLUWALIA] JUDGE March 11, 2010 rps 11