Crl. Appeal No. 968-SB of 2001 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 968-SB of 2001 Date of Decision : September 01, 2011 Kewal Krishan .... Appellant Vs. Central Investigation Bureau and others .... Respondents CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Bipan Ghai, Senior Advocate with Ms. Anju Sharma, Advocate for the appellant. Mr. Sumeet Goel, Advocate for respondent no.1 – CBI. * * * L. N. MITTAL, J. (Oral) : Accused Kewal Krishan stands convicted and sentenced by learned Special Judge, CBI, Punjab, Patiala, vide judgment and order dated 08.08.2001 to undergo rigorous imprisonment for two years and to pay fine of Rs.1,000/- and in default thereof, to undergo further rigorous imprisonment for four months for each of the two offences under Sections 7 and 13 (2) of the Prevention of Corruption Act, 1988 (in short – the Act). However, both the substantive sentences were ordered to run concurrently. Crl. Appeal No. 968-SB of 2001 2 Prosecution case is that the accused was working as Development Officer (DO) in New India Assurance Company at Rampura Phul (in short – Assurance Company). Complainant Daljit Singh had purchased cows by taking loan from Bank and had insured the same with the Assurance Company. On 04.05.1999, one cow of Daljit Singh died. He submitted claim application dated 05.05.1999 for insurance claim of the said cow. The insurance claim was sanctioned for Rs.12,000/- on 10.06.1999. The complainant had been meeting the accused several times to take delivery of the cheque of the claim amount, but the accused, after putting off the matter, made demand of Rs.3,000/- as illegal gratification. However, the demand was reduced to Rs.2,000/-, when the complainant met the accused on 14.07.1999. The complainant narrated the same to Kuldip Singh. Both of them went to the office of Vigilance Bureau, Bathinda on 15.07.1999, where the complainant made statement to DSP Vinod Kumar regarding the aforesaid demand made by the accused. The complainant gave amount of Rs.2,000/- in the form of three currency notes of Rs.500/- denomination and five currency notes of Rs.100/- denomination to the DSP. Numbers of these notes were recorded in the memo. Phenolphthalein powder was applied to the notes. Kuldip Singh was made shadow witness. Necessary instructions were given to the complainant and shadow witness. Ajay Kumar – Steno from the office of District Statistical Officer, Bathinda was associated in the raiding party. The raiding party went to Rampura Crl. Appeal No. 968-SB of 2001 3 Phul. The complainant and shadow witness went inside the office of the accused, whereas the remaining members of the raiding party stayed at some distance. The complainant and the shadow witness met the accused in his office. The accused inquired about the bribe amount of Rs.2,000/-. The complainant answered in the affirmative. The accused asked the complainant and shadow witness to go to the shop of M/s Luby Motors And Mono Block nearby, where the transaction would take place. Accordingly, at the said shop, the accused came and demanded bribe amount of Rs.2,000/-. The complainant gave the tainted currency notes to the accused, who kept the same in the right side pocket of his pants. The accused also simultaneously gave cheque of Rs.12,000/- to the complainant. The shadow witness gave necessary signal to the remaining raiding party, who reached the spot. The tainted currency notes were recovered from right side pocket of the pants of the accused. Numbers of the notes tallied with the numbers of the notes recorded in the memo. Hand-wash and pocket-wash of the pants of the accused in separate solutions of sodium carbonate turned the colour thereof into pink. The same were sealed in separate nips. All the articles were seized by the police. The cheque given by the accused to the complainant was also seized by the police from the latter. Statements of witnesses were recorded. Site plan of place of occurrence was prepared. The accused was arrested. Sanction for his prosecution was obtained. The case was transferred to Central Bureau of Investigation (CBI). After Crl. Appeal No. 968-SB of 2001 4 completion of investigation, report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.) was presented for prosecution of the accused. Charge under Section 7 and Section 13 (1) (d) read with Section 13 (2) of the Act was framed against the accused, who pleaded not guilty and claimed trial. In support of its case, the prosecution examined ten witnesses. Daljit Singh – complainant (PW-1) and Kuldip Singh – shadow witness (PW-2) broadly stated according to the prosecution version, but also turned hostile partly. In fact, substantial examination-in-chief of the complainant was recorded on 14.12.2000, but part examination-in-chief was deferred on account of paucity of time with the Court and remaining statement of complainant was recorded on 13.01.2001, when the complainant changed track and partly turned hostile. Dalip Singh (PW-3) is AAO from the Assurance Company. He stated that claim of the complainant was approved by the Branch Manager and the cheque was signed by Branch Manager as well as by this witness. P. K. Kathuria (PW-4) proved sanction for the prosecution of the accused. Constable Dalbir Singh (PW-5) and Constable Karnail Singh (PW-6) are formal witnesses. Ajay Kumar (PW-7) and DSP Vinod Kumar – Investigating Crl. Appeal No. 968-SB of 2001 5 Officer (IO) have broadly stated according to the prosecution version. Harmesh Kumar Bansal (PW-8) also made statement similar to that of Dalip Singh (PW-3). He also stated that necessary documents were seized by CBI. He also stated that the accused was posted as Inspector and later on, re-designated as Development Officer. SI Shiv Kumar (PW-10) stated about formal investigation conducted by him. The accused, in his examination under Section 313 Cr.P.C., admitted that he was working as DO in the Assurance Company at Rampura Phul and that the complainant had obtained loan from Bank for purchase of eight cows and had purchased the cows, which were insured by the Assurance Company. However, the accused stated that twelve cows were insured. The accused broadly denied all the other incriminating circumstances appearing against him in the prosecution evidence and alleged that he has been falsely implicated in the case. In defence, the accused examined Satpal (DW-1). He stated that his shop is located opposite to shop of Mr. Sanyasi. He stated that he was present with Mr. Sanyasi in the latter's shop, when accused also came. After some time, a person came and forcibly tried to put something in the pocket of trousers of the accused. In the meantime, 5-7 persons entered the shop. One of them, while shaking hand with the accused, disclosed his identity as DSP. The persons accompanying DSP, took out money from the Crl. Appeal No. 968-SB of 2001 6 pocket of trousers of the accused. Many persons gathered and protested against the accused being taken away forcibly. However, police took away the accused forcibly assuring that the accused would be left after some inquiry. The police left the shop within 5-7 minutes. Learned Special Judge, vide impugned judgment and order, convicted and sentenced the accused, as already noticed herein before. Feeling aggrieved, the convict has preferred 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 vehemently contended that the complainant stated in cross-examination that no demand was made by the accused. He also admitted that proceedings after arrest of the accused were not conducted in their presence because he and the shadow witness were sent to the office of Vigilance Bureau, whereas the remaining raiding party along with accused went to the Rest House. The complainant also stated that he had put the tainted currency notes in the pocket of the pants of the accused. It was also pointed out that the shadow witness Kuldip Singh has stated that only the complainant went inside the shop and the complainant after some time came out of the shop and told that he had paid the money to the accused. It was thus argued that Kuldip Singh cannot be said to be shadow witness as he did not hear the conversation of the complainant with the accused nor Kuldip Singh has stated that the accused Crl. Appeal No. 968-SB of 2001 7 had demanded bribe money in his presence from the complainant. Learned counsel for the appellant also submitted that according to Dalip Singh (PW-3) as well as Harmesh Kumar Bansal (PW-8), the cheque was to be handed over to the complainant by Branch Manager and not by the accused-appellant. It was also canvassed that even Kuldip Singh (PW-2) and Ajay Kumar (PW-7) have stated that the complainant and shadow witness were sent to the Vigilance Bureau office, whereas the remaining raiding party went to the Rest House. They have also stated that many persons gathered at the spot, but none of them was joined. It was also submitted that Satpal (DW-1) and Ajay Kumar (PW-7) have stated that the DSP had introduced himself to the accused by shaking hand with him, and therefore, phenolphthalein powder would pass on from the hand of DSP to the hand of the accused. Reference was also made to statement of defence witness Satpal (DW-1). Learned counsel for the appellant also argued that the complainant had insured twelve cows, but in claim application, he mentioned purchase of eight cows only and the accused was asking the complainant to make correction in the claim application, but the complainant did not do so and the accused threatened the complainant that he would be implicated in case of fraud for having purchased eight cows by taking loan for purchasing twelve cows and for this reason, the complainant got the accused implicated in a false case. On the other hand, learned counsel for CBI contended that all Crl. Appeal No. 968-SB of 2001 8 the prosecution witnesses have broadly supported the prosecution case. It was also pointed out that the accused came with the complainant and the shadow witness from his office to the aforesaid shop corroborating the prosecution case. It was also pointed out that cheque for claim amount was given by the accused to the complainant after accepting the bribe amount and the said cheque was seized at the spot by the police from the complainant, further strengthening the prosecution case. I have carefully considered the rival contentions. In my considered opinion, prosecution evidence is sufficient to bring home the charge against the accused beyond reasonable doubt. As noticed herein before, substantial examination-in-chief of the complainant was recorded on 14.12.2000, but since Special Judge had to proceed on leave for second half day, further examination of the complainant was deferred and was recorded on 13.01.2001. However, at that stage, the complainant completely changed the track, clearly depicting that in the meantime, he had been won over by the accused. However, even then, the complainant did not turn hostile completely, but supported the prosecution case to a great extent. Even Kuldip Singh (PW-2), although turned hostile partly, has supported the prosecution case in material respects. Then we have the statements of Ajay Kumar (PW-7) and DSP Vinod Kumar (PW-9). Their statements could not be shaken in their cross-examination. It is significant to notice that the accused, in his statement under Section 313 Crl. Appeal No. 968-SB of 2001 9 Cr.P.C., has not even alleged as to why he has been falsely implicated in this case. The accused simply stated that he has been falsely implicated in the case. However, no reason has been assigned for his false implication. The contention that the accused asked the complainant to make correction in the claim application regarding twelve cows instead of eight cows and on complainant's failure to do so, the accused threatened to lodge case of fraud against the complainant, being motive for the complainant to implicate the accused in this false case, is completely unsubstantiated and untenable. It is correct that the complainant has admitted that he had purchased eight cows, although he took loan for purchase of twelve cows and got insured twelve cows. However, there is not even an iota of material on record to depict that the accused ever asked the complainant to make any such correction in the claim application or to have told the complainant that case of fraud would be lodged against him. On the contrary, it has come in the evidence of the prosecution that claim of the complainant was settled and sanctioned on 10.06.1999 and even the cheque was signed by both the signatories on 10.06.1999, but the cheque was not delivered to the complainant till 15.07.1999 i.e. the date on which the trap was laid. Since the claim had been sanctioned and even cheque had been issued, the alleged discrepancy regarding number of cows became irrelevant and has no significance at all. Contention of counsel for the appellant that cheque was not to be given by the accused, who was DO, but was to be given by the Branch Crl. Appeal No. 968-SB of 2001 10 Manager or by some Clerk, also cannot be accepted because the cheque was actually handed over by the accused to the complainant at the time of trap after accepting the bribe amount. The said cheque was seized from the complainant at the spot by the police. This is a very strong circumstance to prove the guilt of the accused. It is also undisputed that the accused was caught in the shop of Mr. Sanyasi being run under the name and style of M/s Luby Motors and Mono Block. The very presence of the accused in the said shop in the company of complainant and shadow witness would further strengthen the prosecution case to prove the guilt of the accused. Recovery of the tainted currency notes from the pocket of trousers of the accused is also proved from the statements of all the four material witnesses i.e. Daljit Singh – complainant (PW-1), Kuldip Singh – shadow witness (PW-2), Ajay Kumar (PW-7) and DSP Vinod Kumar (PW-9). The said recovery is also proved by hand-wash and pocket-wash of the pants of the accused. Recovery of tainted currency notes from the possession of the accused also strengthens the prosecution case. The accused cannot be acquitted merely because the complainant and the shadow witness turned partly hostile. As noticed herein before, the complainant supported the prosecution case in all respects, when his examination-in-chief was recorded on 14.12.2000 and was partly deferred and till the next date of hearing, when remaining part of Crl. Appeal No. 968-SB of 2001 11 his statement was recorded, he had been won over by the accused. For the same reason, Kuldip Singh (PW-2), whose statement was also recorded on 13.01.2001, has partly turned hostile. However, even statements of both these witnesses go a long way in proving the prosecution case. Statements of Ajay Kumar and DSP Vinod Kumar prove that the shadow witness had also gone inside the shop, where the transaction took place. Non-joining of any person out of the persons, who had gathered at the spot, would not dent the prosecution case in any manner. Obviously, those persons from the neighbourhood of the office of the accused were his supporters and one of then namely Satpal has even appeared as defence witness. No public person from the neighbourhood of the spot likes to be associated in such traps. There is no reason why Ajay Kumar and DSP Vinod Kumar would depose falsely against the accused or would implicate him in a false case. It may be added that the statement made by Satpal (DW-1) depicts that he is smarter than the accused himself because even the accused himself, in his statement under Section 313 Cr.P.C., did not plead any such version, as stated by Satpal (DW-1). The fact that the complainant and the shadow witness were sent to the Vigilance Bureau office does not militate against the prosecution version because according to Ajay Kumar and DSP Vinod Kumar, proceedings were conducted at the spot and if thereafter, the complainant and the shadow witness were sent from there, it would not adversely effect the prosecution case. Demand and acceptance of Crl. Appeal No. 968-SB of 2001 12 the bribe money by the accused is fully proved from the testimony of the complainant, as corroborated by the statements of other witnesses including recovery of tainted currency notes from the accused and handing over of the cheque in question by the accused to the complainant after receipt of bribe amount. For the reasons aforesaid, I find that the prosecution has been successful in bringing home the charge against the accused beyond reasonable doubt. Accordingly, impugned judgment of conviction is upheld. Learned counsel for the appellant prayed for reduction in sentence submitting that the occurrence took place 12 years ago and the accused has faced the agony of trial including the present appeal during this long period. It was also submitted that the accused-appellant has since been dismissed from service pursuant to his conviction. Prayer for reduction in sentence has been opposed by learned counsel for CBI. I have carefully considered the matter. Keeping in view all the circumstances of the case, I am of the considered opinion that ends of justice would be met if substantive sentence of imprisonment is reduced to rigorous imprisonment for one year for each of the two offences, while maintaining the sentence of fine and the sentence of imprisonment in default thereof, as imposed by the trial Judge. It is ordered accordingly. Obviously, both the substantive sentences of Crl. Appeal No. 968-SB of 2001 13 imprisonment shall run concurrently. With reduction in sentence as aforesaid, appeal stands disposed of accordingly. The appellant, who is on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence. September 01, 2011 ( L. N. MITTAL ) monika JUDGE