Crl. Appeal No. 1552-SB of 2002 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. Case No. : Crl. Appeal No. 1552-SB of 2002 Date of Decision : August 01, 2011 Satish Kumar Jain .... Appellant Vs. State of Haryana .... Respondent CORAM : HON'BLE MR. JUSTICE L. N. MITTAL * * * Present : Mr. Sudhir Sharma, Advocate for the appellant. Mr. Sameer Singh, AAG, Haryana. * * * L. N. MITTAL, J. (Oral) : Satish Kumar Jain accused has preferred the instant appeal assailing his conviction and sentence ordered by learned Special Judge, Sonepat, vide judgment of conviction dated 17.09.2002 and order of sentence dated 19.09.2002. Prosecution case, in brief, is as under :- The accused was posted as Assistant Accountant in the office of Estate Officer, Haryana Urban Development Authority (HUDA), Sonepat. Plot No.1839, Sector 23, Sonepat stood allotted to N. C. Rishi. Crl. Appeal No. 1552-SB of 2002 2 He sold this plot to Omwati and asked Rajesh Garg complainant to get the same transferred. Accordingly, Rajesh Garg went to HUDA office. The accused demanded Rs.500/- as illegal gratification. The complainant made application Ex.P-B to the Vigilance Bureau Police in this regard. Thereupon, trap was laid. Inspector Vikash Dhankar moved application to Deputy Commissioner/District Magistrate, who appointed Gazetted Officer Bansi Lal Khundia – Naib Tehsildar to join the raiding party. Vijay Dagar was joined in the raiding party as shadow witness. Complainant gave five currency notes of Rs.100/- denomination to Inspector Vikash Dhankar, who applied phenolphthalein powder to the same and gave back the same to the complainant. Numbers of currency notes were recorded in relevant memo Ex.P-K. Necessary instructions were given to the complainant and the shadow witness. Naib Tehsildar, who also joined the raiding party, was disclosed necessary facts. Raiding party went to the HUDA office. Rajesh Garg complainant and Vijay Dagar shadow witness went to the accused inside his office. The accused demanded the bribe money. On request of the complainant, the bribe amount was brought down to Rs.300/-. The complainant accordingly gave amount of Rs.300/- out of the tainted currency notes to the accused. Thereupon, the shadow witness gave the requisite signal to the remaining raiding party, who also came inside the office. The accused had put the bribe money in the pocket of his shirt. Hand-wash of the accused turned the colour of sodium carbonate solution Crl. Appeal No. 1552-SB of 2002 3 into pink. The three tainted currency notes were recovered from the pocket of the accused. The currency notes were washed in separate solution of sodium carbonate, which turned pink. Shirt of the accused was taken off and its pocket was washed in another solution of sodium carbonate, which also turned pink. All the solutions were sealed separately in nips and were seized by the police. Shirt of the accused, the three tainted currency notes recovered from the accused and the remaining two currency notes taken from the complainant were also sealed and seized separately. All these proceedings were recorded on application Ex.P-B, which was sent to Police Station, where on its basis, FIR was registered. Necessary investigation was conducted at the spot. Sanction for prosecution of the accused was obtained. On 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 under Sections 7 and 13 (1) (d) of the Prevention of Corruption Act, 1988 (in short – the Act). Charge under Sections 7 and 13 (1) (d) of the Act was framed against the accused, who pleaded not guilty and claimed trial. In order to bring home charge against the accused, the prosecution examined eleven witnesses. MHC Kartar Singh (PW-1) tendered his affidavit Ex.P-A in evidence and also stated that he recorded formal FIR in this case. He also proved signatures of Diwan Singh on report under Section 173 Cr.P.C. Crl. Appeal No. 1552-SB of 2002 4 Rajinder Kumar (PW-2) is Clerk from HUDA office, Sonepat. He brought file of Plot No.1839, Sector 23, Sonepat and stated that the said plot was allotted to N. C. Rishi, who moved application on 06.03.2000 for transfer of the plot in the name of Omwati. He also deposited Rs.9,000/- as transfer fee vide receipt dated 06.03.2000. Later on, he gave letter Ex.P-3 for adjusting Rs.4,000/- out of it. (The complainant wanted the accused to adjust the said amount, for which bribe was demanded.) This witness stated that the accused was working as Accounts Assistant at that time. Rohtash Singh (PW-3) is also official from HUDA office, Sonepat. He has stated that the accused stood transferred to HUDA office, Sonepat as Accounts Assistant. The witness proved Certificate Ex.P-D in this regard. As per this Certificate, the accused was transferred to Sonepat vide order dated 30.04.1997. R. N. Nagwan (PW-4) proved sanction order for prosecution of the accused. ASI Dariyao Singh (PW-5) tendered his affidavit in evidence. Parvinder Ruhil (PW-6) stated that he prepared scaled site plan Ex.P-H of the place of occurrence in this case. Surender Kumar (PW-7), who is Accountant from the Estate Office, HUDA, Sonepat, brought record of the plot in question and stated that N. C. Rishi was its previous owner, who deposited Rs.9,000/-. The accused was working as Assistant Accountant in the office and it was his Crl. Appeal No. 1552-SB of 2002 5 duty to adjust the transfer fee because the file was marked to him. N. C. Rishi (PW-8) stated that he had sold the aforesaid plot to Mrs. Omwati by availing of the service of complainant Rajesh Garg and had authorized him to make payment of any amount, if found due towards him (this witness). He had also moved application Ex.P-3 for adjustment of the amount in his account. Rajesh Garg complainant (PW-9), Investigating Officer (IO) Inspector Vikash Dhankar (PW-10) and Bansi Lal Khundia – Naib Tehsildar (PW-11) have broadly stated according to the prosecution version. PW Vijay Dagar – shadow witness was given up as having colluded with the accused. The accused, in his examination under Section 313 Cr.P.C., while admitting that he was working as Accounts Assistant in the office of HUDA, Sonepat, broadly denied all the other incriminating circumstances appearing against him in the prosecution evidence and claimed to be innocent. The accused alleged that the complainant had come to him for transfer of the plot, but the accused told him that it was beyond his power and it was within the jurisdiction of the Estate Officer. The complainant insisted on making the transfer of Rs.4,000/-, but when the accused expressed his helplessness in the matter, the complainant got the accused falsely implicated in connivance with the police. The police took him to the Vigilance Office, Sonepat at 11:00 A.M. on 22.08.2000 and false Crl. Appeal No. 1552-SB of 2002 6 documents were prepared there. In defence, the accused examined six witnesses. Jagdish Singh (DW-1) was working in HUDA office, Sonepat and his seat was in the same room as that of the accused. However, this witness stated that he was not in the office when this occurrence took place on 22.08.2000. Om Parkash – stamp vendor (DW-2) stated about sale of stamp paper. Surender Kumar – Deputy Superintendent (DW-3) working in the office of HUDA, stated about the relevant file of the plot. He had marked the file to the Accounts Assistant i.e. accused. He also gave the note to discuss the matter with him. He also stated about certain other facts. MHC Kartar Singh (DW-4) stated about the time of recording of FIR. He was confronted with cutting/overwriting in the time of proceedings recorded on the complainant's application Ex.P-B. The witness stated that he did not know who had done it. R. P. Rattan (DW-5) is from Custom and Central Excise Department. He stated from record that the complainant was not registered as real estate agent for purpose of service tax. The accused himself appeared as DW-6 and stated in detail about his version. Learned Special Judge, Sonepat, vide impugned judgment of Crl. Appeal No. 1552-SB of 2002 7 conviction dated 17.09.2002, convicted the accused of the offence charged with. After hearing the parties on quantum of sentence, learned Special Judge, vide impugned order dated 19.09.2002, sentenced the accused to undergo rigorous imprisonment for four years and to pay fine of Rs.5,000/- and in default thereof, to undergo further rigorous imprisonment for one year. Feeling aggrieved, the accused 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 Estate Officer was to approve the transfer of Rs.4,000/- and only then, necessary transfer could be done, and therefore, the accused had no role to play in the matter. It was also contended that the IO did not offer his own search before searching the accused. It was pointed out that the IO did state that he had offered his own search before searching the accused, but Bansi Lal Khundia (PW-11) stated that the IO had not given his own search before searching the accused. It was also pointed out that the bribe amount was allegedly reduced from Rs.500/- to Rs.300/-. Stress was also laid on the testimony of the accused himself as DW-6 to submit that the complainant had altercation with the accused on 18.08.2000 and since the accused expressed his helplessness to order transfer of the amount of Rs.4,000/-, the complainant got the accused falsely implicated on Crl. Appeal No. 1552-SB of 2002 8 22.08.2000. It was also canvassed that the IO had allegedly recovered the bribe money from the accused and it was he, who had applied phenolphthalein powder to the tainted currency notes before raid, and therefore, the investigation is tainted. It was also emphatically submitted that the only independent witness Vijay Dagar – shadow witness was not examined by the prosecution. On the other hand, learned State counsel contended that complainant Rajesh Garg (PW-9) has proved demand and acceptance of bribe money by the accused. Recovery of the tainted currency notes from the accused, as deposed to by the complainant, the IO and the Gazetted Officer Bansi Lal Khundia joined in the raiding party, further strengthens the prosecution case. Hand-wash and pocket-wash of the shirt of the accused corroborate the recovery of tainted money from the accused. Bansi Lal Khundia – Gazetted Officer was an independent witness. There is no reason, it was contended, why the witnesses would depose falsely against the accused. I have carefully considered the rival contentions. Merely because the shadow witness had to be given up as having colluded with the accused, it would not be fatal to the prosecution case. The fate of the case cannot be left to the wishes or whims and fencies of the shadow witness, who was joined in the raiding party. In this context, it has to be noticed that Bansi Lal Khundia (PW-11) is an independent Crl. Appeal No. 1552-SB of 2002 9 witness. He is a Gazetted Officer. He has supported the prosecution case. There is no reason to discard his testimony. Inspector Vikash Dhankar is also independent witness and he had no axe to grind by implicating the accused in a false case. Demand and acceptance of bribe by the accused is proved by the testimony of the complainant, as corroborated by statements of other witnesses mentioned herein before. According to the prosecution version, the accused had demanded Rs.500/- as illegal gratification. However, at the time of raid, the complainant asked the accused to reduce the amount and the deal was struck at Rs.300/-. This circumstance also depicts genuineness of the prosecution case because otherwise, the complainant could have said that the demanded amount of Rs.500/- was paid. The complainant was carrying five currency notes of Rs.100/- denomination to be paid to the accused as illegal gratification, but since at the time of raid, the deal was struck at Rs.300/-, he paid only three currency notes of Rs.100/- denomination to the accused. The investigation cannot be said to be tainted. The IO has stated that he offered himself for search. Bansi Lal Khundia (PW-11) has not contradicted the IO on this aspect. He rather stated that the IO had not given his search, but it was not put to this witness if IO had offered his search or not. There is difference between `offering search' and `giving (actual) search'. On the other hand, recovery of the tainted money from the shirt of the accused was effected by the IO in the presence of Bansi Lal Crl. Appeal No. 1552-SB of 2002 10 Khundia. Hand-wash of the accused depicted that the accused had accepted the tainted currency notes. Pocket-wash of the shirt of accused further establishes that the accused had put the tainted currency notes in his pocket. The prosecution case is thus strengthened by this evidence. Learned counsel for the appellant cited judgment of this Court in the case of State of Haryana vs. Mam Raj reported as 2010 (4) R. C. R. (Criminal) 240. However, that was State appeal against judgment of acquittal. Obviously, this judgment can have no applicability in the facts and circumstances of this case because consideration in appeal against acquittal is completely different from that in appeal against conviction. Learned counsel for the appellant also relied on three judgments of this Court namely State of Punjab vs. Kushal Singh Pathania reported as 2010 (4) R. C. R. (Criminal) 498, Suresh Kumar vs. State of Haryana reported as 2009 (4) R. C. R. (Criminal) 608 and Santokh Singh vs. State of Punjab reported as 2010 (4) R. C. R. (Criminal) 672. However, all these judgments are distinguishable on facts. Evidence of each case has to be appreciated to arrive at a finding. The finding recorded in one case, on appreciation of evidence adduced in that case, is meant for that case only. Unless evidence is similar or identical, finding based on appreciation of evidence, cannot be used as precedent in another case. Moreover, in the aforesaid cases, there were many other grounds for acquitting the accused in addition to the ground of Investigating Crl. Appeal No. 1552-SB of 2002 11 Officer not offering himself for search. In the instant case, the IO even offered himself for search, as stated by him. Statement of the accused himself as DW-6 is sufficient to dis- credit the defence version. The contention that complainant had contacted the accused on 18.08.2000, is belied by the testimony of the accused when he stated in the examination-in-chief itself that the complainant had come to him on 22.08.2000. Even in the opening part of his cross-examination, the accused stated that the complainant never met him before 22.08.2000. Thus, it cannot be said that there was any altercation between the accused and the complainant on 18.08.2000 and on account thereof, the accused was falsely implicated on 22.08.2000. On the contrary, the accused has not pointed out any reason for not transferring the amount of Rs.4,000/-, as desired by the plot holder N. C. Rishi through the complainant Rajesh Garg. N. C. Rishi had even submitted application Ex.P-3 for this purpose. It is correct that final approval for transfer of the amount was to be given by the Estate Officer. However, admittedly the accused as Accounts Assistant had to deal with the file and the Estate Officer had to give the approval on the basis of office noting. Necessary facts and rules and instructions had to be mentioned in the office noting by concerned officials including the accused as Account Assistant. The accused demanded illegal gratification for doing his part of the job. It may also be added that the accused examined Jagdish Singh Crl. Appeal No. 1552-SB of 2002 12 (DW-1), who had his seat in the same room as that of the accused, but this witness did not support the defence version. No other official from the office of the accused has either been examined in support of the defence version. For the reasons aforesaid, I find that the prosecution evidence is credible and is sufficient to prove the guilt of the accused-appellant beyond reasonable doubt. Accordingly, impugned judgment of conviction is affirmed. Learned counsel for the appellant prayed for reduction in sentence. It was submitted that the occurrence took place almost 11 years ago, during which period, the appellant has undergone the agony of trial including the instant appeal. The prayer for reduction in sentence has been opposed by learned State counsel. I have carefully considered the matter. The occurrence is almost 11 years old. As a result of conviction, the accused also must have lost his job or would do so, if not already happened. Bribe money is also not very high being Rs.300/- only. Keeping in view all the circumstances, sentence of imprisonment for four years imposed by learned Special Judge, Sonepat, is highly excessive. Accordingly, sentence of imprisonment is reduced from four years to one year, while maintaining the sentence of fine and the sentence of imprisonment in default thereof. Crl. Appeal No. 1552-SB of 2002 13 With reduction in sentence as aforesaid, the 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. August 01, 2011 ( L. N. MITTAL ) monika JUDGE