Crl. Appeal No. 632-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 632-SB of 2002 Date of Decision : July 18, 2011 R. S. Yadav .... Appellant Vs. C. B. I. .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Bipan Ghai, Senior Advocate with Mr. Mandeep Kaushik, Advocate for the appellant. Mr. Ajay Kaushik, Central Government Counsel for respondent – CBI. * * * L. N. MITTAL, J. (Oral) : Learned Special Judge, Patiala, vide judgment and order dated 26.03.2002, convicted the accused R. S. Yadav under Sections 7 and 13 (1) (d) punishable under Section 13 (2) of the Prevention of Corruption Act, 1988 (in short – the Act) and sentenced him 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 three months for each of the two offences, but both the sentences of imprisonment have been ordered to run concurrently. Feeling aggrieved against his conviction and Crl. Appeal No. 632-SB of 2002 2 sentence, the convict has preferred the instant criminal appeal. Prosecution case, in brief, is as under :- The accused was posted as Junior Telecom Officer (JTO) in the office of Sub Divisional Officer (SDO) – Telephones, Morinda. Complainant Jwahar Lal, on 19.12.1998, applied for shifting of his telephone connection No.37417 from his shop-cum-residence to his new temporary rented residence in the house of Master Gurmukh Singh. On inquiry, complainant was told in first week of March 1999 that necessary advice note approval had been sent to the accused on 12.02.1999, being the concerned JTO. Accordingly, the complainant met the accused many times. Ultimately on 21.04.1999, the accused demanded Rs.1,200/- as illegal gratification for shifting the telephone. The deal was struck at Rs.800/- to be paid on the next day. On 22.04.1999, Jwahar Lal, along with Gurmukh Singh, went to Jaipal Singh, DSP Vigilance Bureau and made statement regarding the aforesaid facts. Thereupon, FIR was registered. The complainant gave eight currency notes of Rs.100/- denomination to the DSP, who applied phenolphthalein powder to the same and gave the same back to the complainant by preparing memo, in which numbers of the currency notes were also recorded. Gurmukh Singh was made shadow witness. Demonstration was given to the complainant and the shadow witness to depict that phenolphthalein powder turned the colour of sodium carbonate solution into pink. Usual trap was laid. Inderjit Singh – Steno in the office Crl. Appeal No. 632-SB of 2002 3 of District Treasury Officer was also joined in the raiding party. The accused was present in the office of SDO Telephones (above Post Office). The complainant and the shadow witness went to the accused, whereas the remaining raiding party stayed behind. The accused demanded bribe money from the complainant, who gave the tainted currency notes to the accused. The accused kept the same in the right pocket of his trousers. Gurmukh Singh – shadow witness came out and gave requisite signal to the raiding party. The raiding party reached the spot. The accused was coming down from the stair case. He was apprehended. His hand-wash in solution of sodium carbonate turned its colour into pinkish. The solution was sealed in a nip, which was seized by the police. On search of the accused, the tainted currency notes were recovered from the right side pocket of his pants. Numbers of the currency notes tallied with the numbers of the notes mentioned in the handing-over memo. Pocket-wash of the pants of the accused also turned the colour of solution of sodium carbonate into pink. The said solution was separately sealed in a bottle and seized by the police. The tainted currency notes were also taken into possession by the police. Advice note dated 12.02.1999 sent by the SDO to the accused, for shifting the complainant's telephone, was also taken into possession by the police from the accused. Statements of witnesses were recorded. Necessary investigation formalities were completed. Since the accused was Central Government employee, the case was referred to Central Bureau of Investigation (CBI). CBI registered its Crl. Appeal No. 632-SB of 2002 4 own FIR on 26.07.1999 and also seized necessary record from the Vigilance Bureau, Punjab and presented report under Section 173 of the Code of Criminal Procedure (in short – Cr.P.C.) for prosecution of the accused under Sections 7, 13 (1) (d) and 13 (2) of the Act. Charge under Sections 7 and 13 (1) (d) punishable under Section 13 (2) of the Act was framed against the accused, who pleaded not guilty and claimed trial. To bring home the charge against the accused, the prosecution examined nine witnesses. Jwahar Lal – complainant (PW-1), Gurmukh Singh – shadow witness (PW-2), Inderjit Singh (PW-4), who was also in raiding party, and Investigating Officer Jaipal Singh – DSP (PW-6) have broadly stated according to the prosecution version. Kulwant Singh – SDO Telephones (PW-3) stated that there was to be local shifting of telephone of the complainant within the exchange, for which SDO issued advice note (Ex.P-13) and shifting of telephone had to be completed within seven days. This witness also proved posting order (Ex.P- 12) of the accused as JTO. Constable Sarabjit Singh (PW-5), being formal witness, tendered his affidavit in evidence. Sub Inspector Shiv Kumar (PW-7) from CBI stated about investigation of the case by him. Sada Gopan (PW-8) proved sanction for prosecution of the accused granted by him. Head Constable Gurbhej Singh (PW-9) stated that the case property was not tampered with in his custody. Crl. Appeal No. 632-SB of 2002 5 The accused, in his examination under Section 313 Cr.P.C., admitted his posting as JTO, but broadly denied all the incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. The accused alleged that the complainant had, in fact, sold his telephone connection to Gurmukh Singh to earn money, as found on inquiries by the accused, and therefore, the accused issued letter that the telephone could not be shifted. On account thereof, the complainant and Gurmukh Singh got annoyed with the accused and implicated him in a false case, also to get prize money for getting a public servant apprehended. The accused also alleged that on 22.04.1999, the vigilance party, accompanied by complainant and Gurmukh Singh, searched for him at Chunni Kalan and then at Telephone Exchange at Morinda, where office of the accused was located and then apprehended the accused from market near the office of SDO Telephones. The accused was then taken towards Post Office, where office of SDO Telephones is located, but the said office was found locked. The accused was then taken to Fatehgarh Sahib, where the case was fabricated against him. The accused denied having made any demand of bribe or having accepted any bribe. In defence, the accused examined six witnesses. Harmeet Singh (DW-1) proved site plan to depict that office of SDO Telephones is 2½-3 kilometers from the Telephone Exchange, where office of the accused JTO was located. Harminder Singh (DW-2) proved photographs to depict the distance between the aforesaid two offices. Crl. Appeal No. 632-SB of 2002 6 Raj Kumar Sharma – JTO (DW-3) stated that distance between the two offices (of JTO and SDO at Morinda) was about 1½ kilometers. He also proved letter Ex.DW-3/1 allegedly sent by the accused to the complainant to inform that the telephone could not be shifted as the complainant had sold the telephone to Gurmukh Singh. Sarja Singh (DW-4) stated that on 22.04.1999, the complainant and Gurmukh Singh were searching for the accused and inquired about him from this witness in Village Chunni Kalan. The witness told them that the accused had gone to Badali and had thereafter gone back to Morinda. Ajmer Singh (DW-5) is Postman from Post Office, Morinda. Office of SDO Telephones is located on first floor of the same building, in which Post Office is located on the ground floor. This witness stated that on 22.04.1999, at about 12 O'clock noon, the accused had been caught hold of by two persons and was being brought from the road side along with 5-6 other persons. They came in the street in front of Post Office and two persons went upstairs. They came back and told that the office (of SDO) was lying closed and the accused was then taken back by them. They told this witness on inquiry that the accused was involved in a vigilance case. Somewhat similar statement has been made by Paramjit Singh – a private mechanic (DW-6). He stated that the accused was caught from in front of Popular Automobiles, where this witness was working as a mechanic. The accused was taken to the office of SDO Telephones, which was, however, found closed. The accused was then taken away in a Jeep. Crl. Appeal No. 632-SB of 2002 7 Learned Special Judge, vide impugned judgment and order dated 26.03.2002, convicted and sentenced the accused, as already mentioned herein before. Feeling aggrieved, the accused has instituted 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 defence version is probable because the accused sent letter dated 16.04.1999 (Ex.DW-3/1) informing the complainant that the telephone could not be shifted as desired by him because he had, in fact, sold the telephone to Gurmukh Singh. It was thus contended that the accused was thereafter involved in a false case on 22.04.1999 because the complainant and Gurmukh Singh were both annoyed with the accused for this reason. It was pointed out that the prosecution version that the complainant had taken a room on rent in the house of Gurmukh Singh is untenable because as stated by Gurmukh Singh, there are only two rooms, verandah, kitchen etc. in his house besides a cattle room and Gurmukh Singh himself had family of six including his parents, wife and two issues. It was also pointed out in this context that admittedly, there was no rent note and no rent was paid by the complainant to Gurmukh Singh. It was also pointed out that application for shifting of telephone was written by Gurmukh Singh, although signed by the complainant Jwahar Lal. Since the telephone could not be shifted on account of sale, the said application was subsequently withdrawn by Crl. Appeal No. 632-SB of 2002 8 submitting another application and it was also written by Gurmukh Singh, although signed by Jwahar Lal – complainant. It was also contended that statements of prosecution witnesses are contradictory inasmuch as the complainant stated that they had first gone to the office of the accused and then to the office of SDO in a different building, where the accused was found. Attention of the Court was also drawn to the statements of the defence witnesses in support of the version. It was also pointed out that Inderjit Singh (PW-4), who was joined in the raiding party, was working as Steno in the office of District Treasury Officer, located in the same complex as the office of Vigilance Bureau and therefore, Inderjit Singh is not an independent witness, but was under the influence of officials of Vigilance Bureau. On the other hand, learned counsel for CBI contended that all prosecution witnesses have supported the prosecution case. It was submitted that trap was laid and accused was caught red-handed. It was canvassed that prosecution case is corroborated by hand-wash and pocket- wash of the pants of the accused. It was also argued that Inderjit Singh (PW-4) is an independent witness. I have carefully considered the rival contentios. The defence version is completely unreliable and not probablised by the defence evidence. Kulwant Singh (PW-3) stated that advice note dated 12.02.1999 was issued by SDO requiring the accused JTO to shift the telephone connection of the complainant and the shifting Crl. Appeal No. 632-SB of 2002 9 had to be completed within seven days. This witness was not cross- examined on behalf of the accused in spite of opportunity. His statement in examination-in-chief was, therefore, admitted to be correct. The telephone was thus to be shifted within seven days of advice note dated 12.02.1999. However, admittedly, it was not so shifted by the accused, who was to comply with the advice note. On the contrary, even according to the own version of the accused, he had written letter dated 16.04.1999 to the complainant intimating that the telephone could not be shifted as the complainant had allegedly sold the telephone to Gurmukh Singh. There is no explanation from the accused as to why he took more than two months in complying with the advice note dated 12.02.1999, although ordinarily it was to be complied with within seven days. In addition to the aforesaid, sending of letter dated 16.04.1999 by the accused to the complainant is not proved at all even on the test of probability. It appears that this evidence has been created just to support the defence version. It is significant to notice that according to this letter, the accused had visited the spot in the month of March 1999 and on inquiry from Gurmukh Singh, it was found that the complainant had sold the telephone connection to Gurmukh Singh. However, in spite thereof, the accused did not take any prompt step in this regard and allegedly sent letter dated 16.04.1999 after long delay. This letter was allegedly sent under postal certificate, but the said postal certificate has also not been produced in evidence. Raj Kumar Sharma (DW-3) brought the Dispatch Register to Crl. Appeal No. 632-SB of 2002 10 depict the dispatch of this letter. However, this witness stated in cross- examination that only first two pages of this Dispatch Register had been numbered and the register was not page-marked on the remaining pages. The register also did not bear certificate regarding total number of pages nor it had the date of commencement. It is thus manifest that evidence of writing this letter could be created at any time after the accused had been caught in the trap. It is manifest from the evidence on record that the matter remained pending with the accused for over two months, although he was supposed to execute the shifting of telephone within seven days of receipt of advice note dated 12.02.1999. The complainant had been contacting the accused during this period, but obviously the accused was not in a mood to shift the telephone without his palms being greased by the complainant. Even if it be assumed for the sake of argument that the complainant had allegedly sold the telephone to Gurmukh Singh and for this reason, the telephone could not be shifted, this may be the reason tempting the accused to demand the illegal gratification from the complainant and to force the complainant to pay the same. Otherwise, if it were so, the accused should have promptly written to the complainant that the telephone could not be shifted. Consequently, the contention that Gurmukh Singh could not have rented out a room to the complainant in view of number of his own family members becomes insignificant. There is no reason why DSP Jaipal Singh and Inderjit Singh - Crl. Appeal No. 632-SB of 2002 11 prosecution witnesses would depose falsely against the accused. They are witnesses of the trap. They caught the accused red-handed and the tainted currency notes were recovered from the accused. Their statements are corroborated from the evidence of the hand-wash of the accused and pocket- wash of the pants of the accused. Prosecution evidence is credible and inspires confidence. Statements of prosecution witnesses could not be impeached in their lengthy cross-examination. Even statements of complainant and Gurmukh Singh are reliable. They were subjected to lengthy cross-examination, but they have fully stood the test of cross- examination. Inderjit Singh (PW-4) is also an independent witness and his testimony cannot be discarded merely because he was only Steno and not a high rank official or merely because his office was situated in the same complex as the office of Vigilance Bureau. Inderjit Singh was working as Steno in the office of District Treasury Officer and therefore, he could not be under the influence of officials of Vigilance Bureau. Moreover, even Jaipal Singh – DSP Vigilance had no reason to implicate the accused falsely and to make Inderjit Singh a false witness. There is no explanation why the office of SDO Telephones was allegedly lying closed on 22.04.1999, as stated by the defence witnesses. On the other hand, there is substantive evidence of the prosecution that the accused was present in the said office and was caught red-handed in the trap. The solitary contradiction as to whether the raiding party first went to the Telephone Exchange, where the office of the accused was located and Crl. Appeal No. 632-SB of 2002 12 then went to the office of SDO Telephones or the raiding party directly went to the office of SDO Telephones cannot be said to be significant or fatal to the prosecution case. Such minor contradiction in statements of witnesses examined long after the occurrence cannot be given undue importance so as to discard the entire prosecution evidence, which is otherwise credible. The fact that application for shifting of the telephone and also the application for withdrawing of the first application were written by Gurmukh Singh also has no adverse bearing on the prosecution case because both the said applications were signed by Jwahar Lal – complainant. It has come in the testimony of Gurmukh Singh that he is childhood friend of Jwahar Lal. Consequently, if Jwahar Lal got the said application written from his friend Gurmukh Singh, it would not depict that Jwahar Lal had sold the telephone connection to Gurmukh Singh. On the other hand, it appears that Jwahar Lal is not so literate, whereas Gurmukh Singh is a teacher, and therefore, it was not unnatural for the complainant to get the application scribed from Gurmukh Singh. For the reasons aforesaid, I find that the prosecution has led sufficient reliable evidence to prove the guilt of the accused beyond reasonable doubt. Accordingly, impugned judgment of conviction is affirmed. Learned counsel for the appellant prayed for reduction in sentence submitting that the occurrence took place 12 years ago and in view of appellant's conviction, he has since been dismissed from service. It was Crl. Appeal No. 632-SB of 2002 13 also submitted that the appellant has small school going children and the bribe amount was also Rs.800/- only. Learned counsel for CBI opposed the prayer for reduction in sentence. I have carefully considered the matter. Keeping in view all the circumstances, I am of the considered opinion that ends of justice would be met if the substantive sentence of imprisonment is reduced from two years to one year for each of the two offences, while maintaining the sentence of fine and the sentence in default thereof. It is ordered accordingly. Both the substantive sentences of imprisonment shall obviously run concurrently. The appellant, who is on bail, shall surrender to his bail bonds or shall be arrested to undergo the remaining period of sentence. The appeal stands disposed of accordingly. July 18, 2011 ( L. N. MITTAL ) monika JUDGE