Criminal Appeal No.529-SB of 2000. -1- In the High Court of Punjab and Haryana at Chandigarh. Criminal Appeal No.529-SB of 2000. Date of decision:26-3-2009 Subhash Chander. ...Appellant. Versus The State of Punjab. ...Respondent. ... Coram: Hon'ble Mr. Justice K. C. Puri. ... Present: Mr. Bipan Ghai, Senior Advocate with Mr. Vijay Sharma, Advocate for the appellant. Ms.Ravinder Kaur Nihalsinghwala, Senior DAG, Punjab. ... K. C. Puri, J. Judgment. Under challenge, in this appeal, is the judgment/order dated 6.6.2000 passed by Shri Mohinder Pal, the then Special Judge, Ropar whereby the accused has been convicted and sentenced to undergo rigorous imprisonment for a period of six Criminal Appeal No.529-SB of 2000. -2- months and to pay a fine of Rs.1,000/- and in default of payment of fine, to undergo rigorous imprisonment for one month under Section 7 of the Prevention of Corruption Act, 1988 ( in short the Act). He was also sentenced to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs.4,000/- and in default of payment of fine,to undergo rigorous imprisonment for a period of six months under Section 13(2) of the Act. However, both the sentences were ordered to run concurrently. The prosecution story lie in a narrow compass as under:- Complainant Gurmeet Singh was working as a Conductor in the Punjab Roadways, Nangal Depot, Ropar. In April, 1996, his bus was checked by the checking staff of the Roadways. During his checking, it was found that the complainant had not issued tickets to some of the passengers and accordingly he was fined to the tune of Rs.1,000/- at the spot by the checking staff. The checking staff also lodged report to the higher authorities. Because of that complainant was suspended and an enquiry was initiated. Complainant Gurmeet Singh requested to the higher authorities that since he was fined by the checking staff, enquiry on the same cause of action could not be initiated as a Criminal Appeal No.529-SB of 2000. -3- Government employee could not be punished twice for the same offence. Sukhdev Singh, Law Officer, also gave opinion in favour of the complainant. However, the General Manager, Nangal entrusted the enquiry of the complainant to Subhash Chander accused who was working as Works Manager at Nangal at the relevant time. The complainant also requested the Enquiry Officer to drop the proceedings but he did not agree. On 30.9.1996, the complainant went to the office of the accused with a written request that on the basis of the opinion of Law Officer, enquiry against him be stopped. The accused demanded Rs.3,000/- from the complainant as bribe to drop the proceedings. The complainant made a false promise with the accused regarding payment of Rs.3,000/- and left his office. On 1.10.1996, the complainant along with Tarsem Singh, shadow witness, who has since died, came to the office of DSP Vigilance, Ropar and got recorded his statement Exhibit PK which was read over to him and was signed by him. The DSP Vigilance made his endorsement, Exhibit PK/1 and formal FIR, Exhibit PK/2 was recorded by Inspector Surjit Singh. The complainant produced six currency notes of the denomination of Rs.500/- each. Vigilance DSP Sukhdev Singh Aulakh, Criminal Appeal No.529-SB of 2000. -4- Investigating Officer, noted down the numbers of the tainted currency notes and applied Phenol-phthalein Powder ( in short “P” Powder) and handed over those currency notes back to complainant Gurmeet Singh after giving a demonstration. Memo, Exhibit PP was prepared. DSP asked Tarsem Singh, the accomplice of the complainant to act as a shadow witness and to give a signal to the raiding party after passing over tainted currency notes to the accused. The complainant was also directed that the currency notes were to be given to the accused on his demand. The Investigating Officer also moved application, Exhibit PA, to the SDM, Ropar on the basis of which Narinder Kumar, Naib Tehsildar was deputed to join as an official witness. After joining the witness, the raiding party left for the office of the accused for a raid. Complainant Gurmeet Singh and Tarsem Singh were sent inside the office. After few minutes, the Investigating Officer received a signal from Tarsem Singh and he along with Harinder Kumar and other members of the raiding party went inside the office of the accused. The accused was found present in the office along with Gurmeet Singh, complainant. The complainant told the Investigating Officer that the accused had taken Rs.3,000/- as bribe from him. DSP Sukhdev Singh gave his introduction to the Criminal Appeal No.529-SB of 2000. -5- accused. Ram Lal, General Manager was also summoned. A glass of water was arranged and washing Soda was put into the same. However, the colour of the water did not change. Then, both the hands of the accused were got dipped into the glass of water one after the other and the colour of the water turned to light pink. The water was put into a nip and was sealed with the seal of DSP bearing impression SSA and was taken into possession vide memo, Exhibit PC. The accused got recovered Rs.3,000/- from the right side of the drawer of the table. The notes were of the denomination of Rs.500/- each. These currency notes were handed over to PW Harinder Kumar, Executive Magistrate for comparison with memo, Exhibit PD. Their numbers tallied. Tainted currency notes, Exhibits P-2 to P-7, were also taken into possession vide memo, Exhibit PT. From the personal search of the accused, a purse containing Rs.621/-, Identity Card, Driving Licence and other documents mentioned in memo Ex.PF were also recovered. From further search of the drawer of the table of the accused, one rough memo Exhibit PG was recovered which was taken into possession, vide memo Exhibit PF. The accused was enquired regarding the enquiry file of the complainant. The same enquiry was also made from Ram Lal, General Manager of the Depot. They told that the Criminal Appeal No.529-SB of 2000. -6- concerned official Gurjeet Singh Stenographer was on tour and the file was in his custody and he had kept the same in the Almirah. The Investigating Officer sealed the room where Almirah was lying and memo, Exhibit PJ, regarding it was prepared. The other investigation was conducted. After the completion of investigation, challan was presented against the accused in the Court. The accused was charge-sheeted accordingly to which he pleaded not guilty and claimed trial. In order to substantiate its case, the prosecution examined PW-1 Ram Kishan, PW-2 Head Constable Hari Singh, PW-3 Harinder Kumar, Naib Tehsildar, PW-4 Gurmeet Singh complainant, PW-5 Darshan Singh, PW-6 Bihari Lal, PW-7 Gurjeet Singh, PW-8 Constable Swaran Singh and PW-9 Sukhdev Singh, Investigating Officer. After the close of prosecution evidence, the accused was examined under Section 313 Cr.P.C. He denied the prosecution allegations and pleaded innocence. He pleaded that complainant Gurmeet Singh was Unionist who committed fraud for which the accused was conducting an enquiry. The complainant never wanted that his enquiry be conducted by him and due to this Criminal Appeal No.529-SB of 2000. -7- reason, he falsely implicated him in this case. He denied his presence in the office at the time of raid. In defence, the accused examined DW-1 Pritam Singh. The accused was convicted and sentenced,as noticed in the earlier part of the judgment, after the conclusion of trial. The learned counsel for the appellant has submitted that to prove the ingredients of offence under the Act, the prosecution is required to prove demand, acceptance and recovery of illegal gratification. It is submitted that the evidence of the prosecution does not prove the factum of demand and acceptance of illegal gratification. It is submitted that according to the complainant, the demand of bribe was not made by the accused, but, a Steno told him that the accused was demanding illegal gratification. So, the prosecution has failed to prove the factum of demand. The recovery of tainted amount has not taken place from the person of the accused. The said amount was found to be lying in the drawer. The complainant, in his cross-examination, stated that he did not remember if he had shaken hands with the accused. The case of the accused is that Gurmeet Singh had shaken his hands with him and, on that count, the hand wash does not prove the factum of recovery of tainted currency notes from the accused. Criminal Appeal No.529-SB of 2000. -8- It is further submitted that there is no independent corroboration regarding demand and acceptance of illegal gratification. The shadow witness is a union leader whereas the complainant is a member of that union. The complainant was found guilty of embezzling Government funds by not issuing the tickets and from his cross-examination, it is crystal clear that for those acts, the complainant has been found guilty more than 12 times. It is further contended that the shadow witness defended the complainant in a departmental enquiry and that fact proves that he is highly interested in the complainant. So, he cannot be said to be an independent witness. It is further submitted that there was no motive for the accused to demand and accept illegal gratification. According to the case of the prosecution, the complainant has been imposed a penalty of Rs.1,000/- at the time of raid on a bus and as such departmental action cannot continue. It is further submitted that the file remained in the custody of Steno and the complainant has moved to the General Manager, Roadways for dropping the proceedings on the ground that he cannot be penalised for the same. The accused was an Enquiry Officer appointed by the General Manager and he was nobody to stop the enquiry. There Criminal Appeal No.529-SB of 2000. -9- was motive for the complainant to falsely implicate the accused as he wanted to put pressure upon him that he should not proceed with the enquiry. A prayer has been made for the acceptance of appeal. The learned State counsel has supported the judgment of the trial Court. It is contended that the accused was a Government servant. The demand and acceptance of illegal gratification is proved by PW-4 Gurmeet Singh. Tarsem Singh, shadow witness could not be examined as he has expired. The factum of recovery of illegal gratification has been proved by PW-3 Harinder Kumar, Naib Tehsildar , PW-4 Gurmeet Singh and PW-9 Sukhdev Singh, DSP. All these witnesses have been cross- examined at length but nothing could be brought on the file to discard their sworn testimony. A prayer has been made for the dismissal of the appeal. I have given my thoughtful consideration to the rival submissions made by both sides and have gone through the record of the case. In this case, the star witnesses for the prosecution are PW-4 Gurmeet Singh complainant, PW-3 Harinder Kumar, Naib Tehsildar, PW-7 Gurjeet Singh and PW-9 Sukhdev Singh, DSP. Criminal Appeal No.529-SB of 2000. -10- Others are formal witnesses i.e regarding posting of the accused and sanction. The counsel for the appellant has not challenged sanction and the fact that the appellant was a Government servant at the time of raid. So, the evidence of remaining witnesses is not so material for the decision of the case. To prove the demand and acceptance of illegal gratification, the prosecution has examined PW-4 Gurmeet Singh. To prove factum of hand wash and recovery of tainted money from the accused, the prosecution has relied upon the testimony of PW-3 Harinder Kumar, Naib Tehsildar, PW-4 Gurmeet Singh and PW-9 Sukhdev Singh, DSP. Now, I shall discuss the testimony of these witnesses, individually. PW-4 Gurmeet Singh has supported the case of the prosecution in his examination-in-chief regarding demand and acceptance, but, in the cross-examination, this witness has created a dent in the prosecution version regarding demand and acceptance. In his cross-examination, this witness has stated that he was asked by the Steno that the accused was demanding something and he should pay to him the same. He has categorically stated that Subhash Chander accused did not demand money from him directly earlier to the recovery. The testimony of PW-7 Gurjeet Criminal Appeal No.529-SB of 2000. -11- Singh becomes relevant as he has stated that he was working as a Stenographer in the office of General Manager and he never demanded any money from Gurmeet Singh complainant regarding dropping the enquiry. The testimony of the complainant is that of a accomplice and sometimes the Courts insist on independent corroboration. In the present case, independent corroboration regarding demand and acceptance is lacking as the shadow witness has expired before deposing in the Court. Since the complainant has not supported the case of the prosecution regarding demand of illegal gratification so the said fact creates a doubt in the prosecution version. The benefit of not examining shadow witness cannot be taken by the prosecution. It is a settled law that where there are two views in that case, the view in favour of the accused is to be taken. Gurmeet Singh has himself admitted the fact that Tarsem Singh, shadow witness was a Trade Union Leader and he was a co-worker to assist him in the enquiry pending against him. So, naturally Tarsem Singh cannot be said to be an independent witness as he is highly interested in the complainant and has even assisted the complainant in the departmental enquiry. From the conduct of the complainant, it is revealed that he is habitual of mis- appropriating Government money as a Conductor as for 12 times, Criminal Appeal No.529-SB of 2000. -12- he was found guilty of not issuing tickets to the passengers and mis-appropriating the amount. The request for dropping the proceedings was made to the General Manager by the complainant on the ground that he was penalized twice. Once the enquiry was entrusted to the accused/appellant, he has no locus-standi to drop the enquiry. So, the motive for demanding illegal gratification is not proved. So far as testimony of PW-3 Harinder Kumar, Naib Tehsildar and PW-9 DSP Sukhdev Singh is concerned, they have proved the hand wash. They have categorically stated that the recovery was effected from the drawer of the table and hand wash turned the solution of Sodium Carbonate pink. PW-4 Gurmeet Singh, during his cross-examination, has stated that Subhash Chander went outside to urinate and he never kept sitting in his room. So, there was ample opportunity to put the tainted currency notes in the drawer. The recovery of tainted currency notes has not been effected from the person of the accused. So, far as hand wash is concerned, the complainant has stated that he did not remember whether he had shaken hands with the accused. According to the appellant, he had shaken his hands with the accused and that fact has not been denied by the complainant. Therefore, the hand wash Criminal Appeal No.529-SB of 2000. -13- loses its importance as there were chances that after hand wash, the solution would turn pink. Hence, in these circumstances, the non- examination of shadow witness i.e absence of independent corroboration assumes more importance. The learned trial Court has not dealt with the above aspect of the case. The testimony of the complainant is to be read as a whole. The cumulative effect is that the prosecution story has become doubtful and the accused cannot be convicted on the basis of evidence on the file. In authority in case Mathura Dass Gupta Versus State of Haryana, 2006 (1) R.C.R (Criminal) 566, the accused was acquitted as the prosecution story regarding demand of bribe was found to be doubtful. In authority in case Satbir Singh Versus State of Haryana, 2000(1) R. C. R (Criminal) 487, the accused was acquitted where independent witness was not examined and demand of illegal gratification was not proved beyond reasonable doubt. In authority in case State of Haryana Versus Sudesh Kamal, 1991(2) R.C.R(Criminal) 641, a Division Bench of this Court held that if the demand of illegal gratification is doubtful, the accused is entitled to acquittal. Criminal Appeal No.529-SB of 2000. -14- Even Hon'ble Apex Court in authority in case Union of India Thr. Inspector, CBI Versus Purnandu Biswas, 2005(4) R.C.R (Criminal) 517, acquitted the accused when demand of illegal gratification was not proved. It has been further laid down in the said ruling that mere recovery of currency notes is not sufficient to convict the accused. Presumption under Section 20 of the Prevention of Corruption Act cannot be drawn, in those circumstances. In view of above discussion, the appeal is accepted. The judgment of the trial Court stands set aside and the accused stands acquitted, by giving him benefit of doubt. A copy of this judgment be sent to the trial Court for strict compliance. March 26th,2009. ( K. C. Puri ) Jaggi Judge