Crl.Appeal No. 231-SB of 2000 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Crl.Appeal No.231-SB of 2000 Date of decision:12.10.2010 Jagtar Singh … Appellant Versus State of Punjab … Respondent CORAM: HON’BLE MR. JUSTICE JORA SINGH. Present: Mr.K.K.Aggarwal, Sr.Advocate, with Mr.R.K.Agnihotri, Advocate, for the appellant. Mr.Arshvinder Singh, DAG, Punjab. … JORA SINGH, J. This appeal has been instituted by Jagtar Singh against the judgment of conviction and order of sentence dated 24.2.2000 passed by Special Judge, Sangrur, in Sessions Case No. 3 dated 11.3.1988, arising out of FIR No.138 dated 11.8.1987 under Section 5(2) of Prevention of Corruption Act (for short `the Act’) and Section 161 IPC, PS Sunam. By the said judgment, he was convicted under Section 5(1) read with Section 5(2) of the Act and Section 161 IPC and sentenced to undergo RI for two years and to pay a fine of Rs.2,000/-, in default of payment of fine, to further undergo RI for one year under Section 5(1) read with Section 5(2) of the Act and to undergo RI for one year under Section 161 IPC. Both the sentences were ordered to run concurrently. Prosecution story, in brief, is that Naval Kishore son of Badri Parshad was the partner of Friends Cold Store, Jakhal Road, Sunam, on 11.8.1987. He was running the cold store on contract basis as sole owner. There was power cut from 7.00 PM to 10.00 PM. Last week at 6.00 PM, Crl.Appeal No. 231-SB of 2000 2 Jagtar Singh, Line Superintendent, came to the cold store of the complainant and switched off the light. Complainant asked him that power cut was from 7.00 PM to 10.00 PM and upto 7.00 PM, they can consume electricity. Jagtar Singh threatened that he can get the electricity switched off for a week. After taking tea etc. electricity was restored. On 10.8.1987, Jagtar Singh again came and demanded Rs.1,000/- per month as illegal gratification by saying that after payment of Rs.1,000/- per month, nobody can stop them from consuming electricity after 7.00 PM. Secondly, he was responsible for the SDO. There was settlement for Rs.800/-. Accused directed the complainant to bring Rs.800/- on the next day after lunch. Complainant was not willing to pay illegal gratification. Matter was brought to the notice of Om Parkash. Then Om Parkash requested the complainant to inform the Vigilance Department to get the accused arrested. Complainant along with Om Parkash had gone to the office of Vigilance Bureau, Sangrur. Statement of Naval Kishore (Ex.PE) was recorded by Inspector Harbans Singh on 11.8.1987 at 2.00 PM. After making endorsement, statement was sent to the police station, on the basis of which, formal FIR was recorded. Complainant had produced seven currency notes, each of the denomination of Rs.100/-, and two currency notes, each of the denomination of Rs.50/-, before Inspector Harbans Singh. Number of currency notes were noted in the memo (Ex.PG). After applying phenolphthalein powder to the currency notes, same were handed back to Nival Kishore with the instructions to pay only those currency notes to the accused on demand. Demonstration was given to the complainant and Om Parkash by preparing a solution by adding sodium carbonate in a glass of Crl.Appeal No. 231-SB of 2000 3 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. Om Parkash 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 to give the agreed signal to the raiding party. Raiding party was constituted and party was near the Octroi Post, Sunam. Complainant and Om Parkash were sent to the office of accused to deliver the marked currency notes as per demand. Inspector Harbans Singh stayed on one side of road near Octroi Post and remaining officials of police party hide themselves behind the bushes. One Constable was sent to summon the Tehsildar, Sunam, but he was not available. In the meantime, one scooterist came and was requested to join the party. Name of scooterist was Raj Kumar. In the meantime, Om Parkash and Naval Kishore came out of the office of accused. After some time, a scooterist came and after a talk with Naval Kishore started the scooter. In the meanwhile, Om Parkash gave agreed signal. Scooterist was directed to stop the scooter. On enquiry, he disclosed his name as Jagtar Singh. IO had disclosed his identity to the accused. Naval Kishore and Om Parkash also came at the spot, where Jagtar Singh was apprehended. IO offered himself for search to the accused. 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 sealed by the Inspector with seal of SI Inderjit Singh bearing impression `IS’. Sealed parcel was taken into police Crl.Appeal No. 231-SB of 2000 4 possession vide memo (Ex.PK) attested by the witnesses. On search of the accused, marked currency notes were recovered from the pocket of the accused. Number of currency notes recovered were got tallied with the numbers already noted in the memo through Raj Kumar. 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.PH) attested by the witnesses. Rough site plan (Ex.PL) with correct marginal notes was prepared. On return to the police station, case property was deposited with the Incharge of Malkhana. On receipt of sanction to launch prosecution and after completion of investigation, challan was presented in the Court. Accused was charged under Section 5(2) of the Act and Section 161 IPC, to which he pleaded not guilty and claimed trial. In order to substantiate its case, prosecution examined number of witnesses. PW1 Chander Parkash, UDC, brought original order of appointment of the accused. Ex.PA is the copy of order dated 6.1.1972. PW2 Kuldip Singh, UDC, brought original transfer order of the accused. Ex.PB is the copy of transfer order. At the time of raid, accused was serving as JE at City Sub Division, Sunam. PW3 Ramesh Sharma, UDC, brought service book of the accused. Ex.PC and Ex.PD) are the copies of entries of service book of the accused. PW4 Naval Kishore is the complainant. He has reiterated his stand before police and supported the story by saying that accused demanded illegal gratification to consume the electricity during peak hours. Crl.Appeal No. 231-SB of 2000 5 PW5 Om Parkash was joined as shadow witness. He has supported the version of complainant. PW6 Gurdeep Singh, SDO, brought record and stated that accused was serving as JE-II in Sub Division City, Sunam. There was electricity cut from 7.00 PM to 10.00 PM during summer and from 6.00 PM to 9.00 PM during winter. Electricity cut was applicable to cold storage also. Ex.PM is the copy of instructions issued by the Chief Engineer, PSEB, regarding power cut. PW7 Gursewak Singh, Assistant, stated that Chief Engineer (South), PSEB, Patiala, has accorded sanction to launch prosecution against the accused. PW8 Constable Ram Sarup had deposited sample nip along with sample seal in the office of FSL, Chandigarh, 19.8.1987. PW9 Raj Kumar was joined as official witness. He has supported the version of the complainant. PW10 Inspector Harbans Singh was the Investigating Officer. Affidavit of MHC Bhim Sain (Ex.PQ) and report of FSL (Ex.PR) were tendered into evidence. After close of the prosecution evidence, statement of accused was recorded under Section 313 Cr.P.C. He denied all the prosecution allegations and pleaded to be innocent. Defence version of the appellant was as under:- “Naval Kishore, Om Parkash and Raj Kumar are the partners of Cold Store having Account No.MS-46. Previously the name and style of said Cold Store was Dalip Chand Cold Store and in the year 1987,its name and style was Maha Laxmi Cold Store. Crl.Appeal No. 231-SB of 2000 6 Flying Squad, PSEB, had checked the connection of that cold store on 3.8.87 and penalty/surcharge of Rs.6,000/- was imposed by SDO, Sunam, for the reason of excess load. I was ordered to disconnect the electric connection of that cold store and same was disconnected by me on 4.8.87. On 6.8.87 the party deposited the penalty/surcharge amount and the electric connection of the cold store was again connected. I never demanded any illegal gratification during the peak load hours from the owners of said cold store nor I was competent to check the peak load. I never accepted illegal gratification from any partner of said cold store. I am innocent. I have been falsely implicated in this case due to grudge that I had disconnected the electric connection on 4.8.87 as per directions of senior officers. PW Raj Kumar is inimical towards me because I informed A.O. Field against Raj Kumar and he had deposited Rs.43,835/-.” In defence, DW1 Harjinder Kaur wife of the accused appeared and stated that on 11.8.1987, she was in her quarter. Jagtar Singh came to the house during lunch time. After lunch, she had accompanied him because she was not feeling well. She along with her husband was going to the doctor for treatment. They were near the main gate, then 4-5 persons were found standing there. Their scooter was surrounded. Nothing was found from Jagtar Singh. Jagtar Singh was taken away by the police. She came back to her quarter. Jagtar Singh was falsely implicated in this case. DW2 Navdeep Gupta, Handwriting and Finger Print Expert, stated that he had examined the signatures readable as Om Parkash on Crl.Appeal No. 231-SB of 2000 7 Ex.PF, Ex.PH, Ex.PK, Ex.D8 and Ex.D9 and after comparison came to know that signatures were by one and the same person. His report is Ex.D17. 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 defence counsel for the appellant argued that appellant was serving as JE. Complainant, Om Parkash and Raj Kumar were the partners of cold store having Account No.MC 46. On 3.8.1987, there was a checking of the cold store. Excess load was noticed. Penalty of Rs.6,000/- was imposed. Electricity connection was disconnected on 4.8.1987 by the appellant, as per report of the flying squad. On 6.8.1987, penalty was deposited. Then electricity connection was restored by the appellant, as per report of higher authorities. Whereas, allegation of the complainant was that illegal gratification was demanded by the appellant on 10.8.1987 to run cold store even during peak hours. On 11.8.1987, on demand by appellant, illegal gratification was paid to him in the presence of Om Parkash. Recovery of tainted money in the presence of Raj Kumar. But documentary evidence on the file shows that prosecution story is not correct one. Ex.D1 is the copy of application dated 5.8.1987. Application was regarding Account No.46 to deposit Rs.6,000/- as penalty. Complainant admitted that Ex.D1 was moved by him. Ex.D3 is second application regarding Connection No. MS 46 to restore electricity connection. Application shows that Jagtar Singh had restored the supply after verification. Ex.D4 is Crl.Appeal No. 231-SB of 2000 8 the copy of application by Om Parkash, as partner of Friends Cold Store. Application shows that there was a checking by the flying squad on 3.8.1987. Electricity connection was disconnected. Request was to restore the electricity connection. Om Parkash admitted that Ex.D3 and Ex.D4 were moved by him. Ex.D5 is the entry of register qua checking. Ex.D6 is the application dated 4.8.1987 from the side of Dalip Chand having Account No.MS 46 to the effect that there was checking by the flying squad on 3.8.1987. Load was found to be 135 HP. Parties agreed to deposit Rs.6,000/- as penalty. Request was to restore the connection. Ex.D8 is another application qua Account No.MS 46 to the effect that excess load was removed. Test report is qua 104 HP and to restore the connection. Application was marked to the appellant to restore the connection. Ex.D9 is another application dated 5.8.1987 from the side of Friends Cold Store. Application was given to the SDO that there was a checking on 3.8.1987. Motor of 40 HP was found to be of 75 HP. Electricity connection was disconnected. Ultimate request was to release the connection of 64 HP. Ex.D10 is test report of Account No. MS 46. Ex.D13 shows that Account No.MS 46 was again checked on 29.5.1988. PW6 Gurdeep Singh, SDO, after going through the record, admitted that there was a checking by flying squad on 3.8.1987. Account No.MS 46 of cold store was checked. Report is Ex.D5. Notice (Ex.D6) was issued. Electricity connection was disconnected by the appellant. Application (Ex.D1) was given by the complainant to restore the connection on deposit of Rs.6,000/- as penalty. Rs.6,000/- was deposited, then application was marked to the appellant to restore the connection. Ex.D10 is the test report of Friends Cold Store. Ex.D8 and Ex.D9 were given by Crl.Appeal No. 231-SB of 2000 9 Om Parkash and Raj Kumar. Connection MS 46 was again checked on 12.5.1988 and 29.5.1988. Father of Raj Kumar, namely, Anand Sarup, had another connection No. MS 30 of Janta Rice Mill. Penalty of Rs.43,835/- was deposited and report (Ex.D12) is dated 12.5.1988. Complainant in cross-examination admitted that application (Ex.D1) was given by him qua connection MS 46. Name of Cold Store was Maha Laxmi Cold Store. Earlier name of cold store was Friends Cold Store. On 3.8.1987, there was checking by flying squad. Connection was disconnected. On 5.8.1987, request was made to restore the connection. Criminal case was registered against him, Om Parkash, PW, Anand Sarup and others. Anand Sarup is father of PW9 Raj Kumar. 3-4 days after the checking, illegal gratification was demanded by the appellant. He cannot tell whether connection was restored by the appellant. Notice (Ex.D6) was received from the PSEB. Om Parkash was joined as shadow witness. In examination-in- chief, he has supported the story by saying that he was the owner of tea stall. Raj Kumar is the son of Anand Sarup. He was convicted along with Naval Kishore and others. Ex.D3 and Ex.D4 were signed by him. PW9 Raj Kumar joined as official witness has admitted that his father was the owner of Janta Rice Mill. Ex.D3 and Ex.D4 dated 5.8.1987 were signed by him. Applications were moved from the side of Friends Cold Store. He cannot tell whether Rs.6,000/- was deposited as a penalty. Further stated that he cannot tell whether Rs.43,835/- was deposited as fine by Janta Rice Mill. He had partnership with Naval Kishore in the rice sheller. At the time of apprehension of appellant, his wife was also present but Inspector Harbans Singh stated that wife of appellant was not present with him at the time of his arrest. He cannot tell whether Janta Rice Mill Crl.Appeal No. 231-SB of 2000 10 was of the complainant, shadow witness and his (Raj Kumar) father. Lastly stated that he cannot tell whether Janta Rice Mill was directed to pay penalty of Rs.43,835/-. Argued that Naval kishore, Om Parkash and Raj Kumar were very much interested in the success of this case. Their cold store was checked by the flying squad on 3.8.1987. Penalty of Rs.6,000/- was imposed. Applications were moved to deposit penalty and restore the connection. As per report of flying squad, connection was disconnected and restored by the appellant. After the connection was disconnected and restored on deposit of penalty, then there was no idea to demand illegal gratification. Complainant, shadow witness and official witness were inimical towards the appellant. Defence version seems to be more probable than the prosecution story. Learned State counsel argued that complainant party was not inimical towards the appellant. Illegal gratification was demanded to allow the complainant party to run cold store during peak hours. In the presence of Om Parkash, illegal gratification was demanded. On demand by the appellant, illegal gratification was paid and accepted in the presence of Om Parkash. After acceptance of illegal gratification, agreed signal was given to the raiding party. Raiding party headed by Inspector Harbans Singh had apprehended the appellant. Marked currency notes were recovered from the appellant. Minor discrepancies in the statements of PWs were bound to occur with the passage of time. According to story, there was a checking by flying squad on 3.8.1987. Electricity connection No. MS 46 was disconnected. On deposit of penalty, electricity connection was restored. To run the cold store during peak hours, appellant had demanded illegal gratification, whereas allegation Crl.Appeal No. 231-SB of 2000 11 of the appellant was that as per report of flying squad, electricity connection was disconnected. On deposit of penalty, when as per direction of higher authorities, electricity connection was restored, then there was no idea to demand illegal gratification. Now the question is whether prosecution story inspires confidence or whether the defence version is more probable than the prosecution story. Complainant appeared as PW4 and stated that in the year 1987, he was a partner in the cold store. Cold store was being run under the name and style of Friends Cold Store. On 11.8.1987, cold store was being run by him alone on contract basis. One week earlier to 10.8.1987, appellant came and had switched off the electricity connection. Tea etc. was served, then electricity connection was restored. Appellant had threatened to disconnect the electricity connection for a week. On 10.8.1987, again appellant had gone to the cold store of the complainant and demanded Rs.1,000/- per month as illegal gratification to run cold store during peak hours because there was power cut from 7.00 PM to 10.00 PM. He was not willing to pay illegal gratification. On 11.8.1987, matter was brought to the notice of Om Parkash. Ultimately, Vigilance Department was informed. Om Parkash was joined as shadow witness. Question is whether Om Parkash and Naval Kishore were interested in the success of this case or not. In cross- examination, Naval Kishore admitted that application (Ex.D1) was given by him. Application is dated 5.8.1987. There was a request to deposit surcharge. Application further shows that earlier name of cold store was Friends Cold Store and now name of cold store is Maha Laxmi Cold Store. Dispute was regarding load. Complainant agreed to deposit Rs.6,000/- under protest with a request to restore the connection. Then stated that Crl.Appeal No. 231-SB of 2000 12 Ex.D2 was given on 5.8.1987. Again said that Ex.D2 was not given by him but admitted that on 3.8.1987, electricity connection was disconnected by the flying squad. Electricity connection was restored on 5.8.1987. In the year 1987, Mohan Lal, Dalip Chand, Subhash Chand and Kamla Devi were the partners with him. Criminal case was registered against him, Om Parkash, Anand Sarup and others. He cannot tell whether electricity connection was restored by the appellant. Suggestion was given to Naval Kishore that he was inimical towards the appellant because electricity connection was got checked by him from the flying squad. Complainant had received notice (Ex.D6) from the PSEB. Now one thing is clear from the statement of complainant that he had moved application (Ex.D1) regarding deposit of Rs.6,000/-. Secondly, he was a partner with Mohan Lal, Dalip Chand, Subhash Chand, Kamla Devi and others. Thirdly, criminal case was registered against him, Om Parkash PW, Anand Sarup, father of Raj Kumar PW, and others. Meaning thereby, Naval Kishore, complainant, was known to Om Parkash and Raj Kumar. PW5 Om Parkash in examination-in-chief supported the version of complainant. Further stated that he was running a tea stall and has no concern with the cold store, but in the cross-examination, admitted that he along with Raj Kumar, Naval Kishore and others, was convicted in a criminal case. He had moved applications (Ex.D3) and (Ex.D4). Ex.D3 is the application dated 5.8.1987. Raj Kumar also admitted that application (Ex.D3) was moved to the PSEB, regarding Connection No.MS-46. There was dispute of load. Request was to restore the connection after removing excess load. Application was marked to the appellant to restore the supply after verification. Ex.D4 is the second application moved by Om Parkash as Crl.Appeal No. 231-SB of 2000 13 a partner of Friends Cold Store . Application was given to the SDO with a request that electric motor of 40 HP was found to be of 75 HP. There was a checking by the flying squad. Electricity Connection was disconnected. Ultimate request was to release the connection of 64 HP. Raj Kumar admitted that Ex.D3 and Ex.D4 were moved by him. Both the applications were signed by Om Parkash. Expert appeared in defence and stated that signatures on all the applications are by one and the same person, namely, Om Parkash. Applications Ex.D3 and Ex.D4 also show that Raj Kumar and Om Parkash were very much interested in the success of this case. Om Parkash was an accused with Naval Kishore. Both were convicted in a criminal case. Om Parkash had interest in the cold store in view of applications (Ex.D3 and Ex.D4). Raj Kumar was joined as official witness. He admitted his signatures on Ex.D3 and Ex.D4 dated 5.8.1987 and stated that applications were on behalf of Friends Cold Store. He was a partner with the father of Naval Kishore and after the death of his father, Naval Kishore joined as partner. Raj Kumar stated that he cannot tell whether cold store was directed to pay penalty of Rs.6,000/-. He cannot tell whether Janta Rice Mill was directed to pay penalty of Rs.43,835/-. From the statement of Raj Kumar, one thing is clear that he was a partner with the complainant. Father of Raj Kumar, namely, Anand Sarup was the owner of Janta Rice Mill with Account No.MS30. Janta Rice Mill was directed to pay Rs.43,835/- as penalty. This fact is clear from the report (Ex.D12) dated 12.5.1988. PW6 Gurdeep Singh, SDO, as per record stated that father of Raj Kumar, namely, Anand Sarup, had connection No. MS30 of Janta Rice Crl.Appeal No. 231-SB of 2000 14 Mill and Janta Rice Mill was directed to pay penalty of Rs.43,835/-. Raj Kumar, official witness, was also interested in the success of this case. In 1995(1) RCR (Crl.), 366, Suresh Kumar Shrivastava vs. State of MP, Trap by police- Money recovered from accused- No evidence that accused demanded any bribe money before trap or voluntarily accepted bribe money at the time of trap- Mere recovery of money was not sufficient to raise resumption against accused- Prosecution story also rendered doubtful as there existed no motive on the part of accused to demand nor any motive on part of complainant to pay any bribe Conviction of accused was set aside. In the present case, electricity connection of complainant, shadow witness and official witness was disconnected on 3.8.1987. On deposit of Rs.6,000/-, connection was restored by the appellant. After restoring connection, there was no motive for the appellant to demand illegal gratification. If appellant was to demand illegal gratification, then there was no idea to request the flying squad to check the connection. Evidence shows that on the request of the appellant, connection was checked by the flying squad. After deposit of Rs.6,000/- by way of penalty, appellant had no motive to demand illegal gratification. Similarly, complainant had no motive to pay illegal gratification. Earlier connection was disconnected and on payment of penalty, connection was restored. After checking on 3.8.1987, again connection of the complainant was checked on 12.5.1988 and 29.5.1988. In 1987 (1) RCR (Crl.) 672, Gurnam Singh vs. State of Punjab, Giver of bribe and shadow witness are accomplice- Independent corroboration of their evidence should be sought for as a matter of