86 l Criminal No 1731B of2003 1 IN THE HlGH COURT OF PUNJAB 8 HARYANA AT CHANDlGARH CriminalAppealNo73 1SB of2003 Decidedon 9 122009 O RaghuNatll Bansal Appellant C I C5 Versus I Z StateofPunjab 4 I 08 CORAM HONBLE MRe JUSTlCE KC PURI 7 Present Mr Sl3rar Advocate for theappcllant Z Mr SudhirNehraAddlAG Punjab ICCPURl 110isis all prefcrred by appellantagainstthejudgmenl and order dalcd 292003 byShri UdcySinghGeralcarncd Judge Court I7aridkotvide which aplocailt llas beell coilvicled uilder Sections7 and 132 of thePrcvention of Corruptlon Act l 988 hereinafter lnentioned as the Actl and sentenced hiin to undergorigorous for a periodot onc ycar andlo pay a Ilne ofRs10001 and Ill defaultof paylnentof flne to 61rtherundcrgorigorous f7n threeInonthsundcr Scction 70f lhc Act and ftirlhcr selltctlcedllilll fo SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 87 PCriminalAppealNo731B of2003 2 rigorous for a periodof one yearand to pay a flne of Rs10001 and in default of paymentof fine to further undergorigorous for a periodofthrec lnonthsunder Section13621 ofthe Act he case oofthe in brief is that thc electric lneter 1 whichis in the name of father of Singhwas out of 0 for the last aboul 89 inonths6before the incident9 and thc Electricity C I Board usedto chargeexcess bill on averagebasis The inoved 0 to changehis meter to the Sub Divisional OfOcer 6inshort I SDO PunjabState I3oard Doda n short aPSEB9and also Z madeoral requests but ofno use On 10 tnet thc ExecutivcEngineerand I moved an in this who furtherordered to SDO but the a5 said SDOdid not pay any heedto his application The SDO told him that he 7 wouldinark the applicaon to the concernedJE if he paidRs3000 to him Z but the him thatbeing a poor farlncr unable to pay Il sucha hugealnounl Then this SDO askedhim to pay Rs001 to hoiom and hewould inark his to theJunior the same day When the the SDO thathe was not havingsuch a lnoney at thattime then the SDO askedhiln to come in the afternoonoflhe next day andhe would do the needful while retaining Olc said application wh him The thereaftertold the above sald facts to Karnail Singhwho hiln to get the SDO trappedOn l l l l 1994 thc alongwith Karnail Singhinet DSP HarbansSinghVigilanceBureau and inadestatement ExPG The said DSP made his endorsemcntExlOGll on thestatement and sent the same to Police Station Kot Bhai on the basisof SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 4 88 r CriminalAppealNo1731B of2003 3 whichformalFIR ExPG12 was recorded ThereafterMalkiat Singhhanded overtwo currency notes of the denominationof Rs l 001 each to the DSP 3 who powder to them and handed over the same to Malkiat Singhafter ensuringthat no money lS left on his person and C instructedhiin to hand over themoneyonlyon denlandbythe accused DSP 0 HarbansSinghalso instructed Karnail SighPW to accoinpany Malkiat C I Singh to the offlce ofthe accusedandto hear lhe conversation and to give 0 thesignal to thepolicepartybytouching his right8and on his head JagdihSinghSenior Assistant ofllcial witness j oined the Z police partyafter seeking necessary bythe DSP Thereafter PW C Malkiat Singhand Karnail Singhweresent to the offlce of the accusedand I on receiptofthe signalfrom Karnail Singhthe DSP alongwith thepolice 08 partywent inside the office of the accused and introduced himself and 7 disclosedthe purpose of raid On the directions of the DSP the accused Z took out his wallet from the back pocketof his pant and handed over the 0m sameto him and on openingit bythe DSP the taintedcurrency notes were recoveredSaid DSP with the helpof JagdishSinghPW tallied the numberof the currency notes with the previous meino and found the same andthereafterthe DSP took thesecunency notes into The DSP a solution of sodium carbonatein water and asked PW Jagdish Singh to dip his handsthereinbut the colour ofthe solution did not change and thereafterwhen the accuseddipped his hands in the said solution then the colour ofthe solution changed lnto lightpink The solution was putinto anipand thenipwas dulysealedwith his sealbearingilnpression HSS over which signatoryslipof PW JagdishSinghwas affixedand thc sampleseal SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 89 0 6erlCriminalAppealN01731B of2003 4 P1 was also and the same were taken into possessi on vide memo ExPJ The accused was arrested Statcmcntsof the witnesses were recordedThe sanction to prosecutethc accused was obtained and after of necessary the accused was then sent up for 1 r trial 1 0 On appearance copiesof the docuincnts were supplied to the 0 accused C5 I The learned trial Court Oainedchargesunder Section 7 and 362 of the Acl againstthe appellantHe pleaded not guiltyto thecharge Z a andclaimed trial The in ordcr to establish its case exam ined HC 08 SukhdevSingh6PWl9 ConstableRajbirSlngh6PV29 DalipKuinar Saini PW9 BaljlnderSinghRecord Kecper6PWl Gurnaib Sitlgh W 7 Gurbax Singh6PW69Harmesh Kumar 00M Malkiat SinghoPW Z Il Jagdish Singh6PWand DSP HarbansSinghRetdIas Ol Theaccused when examinedunder Section 313 CrPC denied therecovery claimed to be innocent and false implication in this caseIe furtherpleaded that Malkiat Singh1S a mall of shadycharactcrand is in the habitofmakingfalse and cases againstthe ofcers ofthe PSEB Dodaand blackmailingthem He also got bad in the area and a manofcriminal antecedent He had checked meter ofJoginderSinghfather ofMalkiat Singhand he was penalized and thc amount was paidbyMalkiat Singhand he had signedthe entryExDA Inadebyhim in the registerHe ncver deinanded or acceptedanyamoun Recoveryofthe amount was foistedupon hiin The of hand wash and wallet wash werc SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 40 0 CriminalAppealNo73 1 B of2003 5 faked one The rccovery ofthc application is also falsc When asked to enter upon his defcnce he produced Anil Kumar GuptaHandwriting and FingerPrints ExpcrtFazilka 6D11 Sadhu Ram 1 6DW HarpalSinghRevenue Acountant OW3I and Balraj DW41 1 r Krishan Lal NarangDW9 ConstableJoginderSingh00W JagSingh 0 LDC PSEB Sub Division Doda DHa71 0 I The learnedtrial Court held the appcllatltguiltyunder Sections 9 7 read with 1309ofthe Act and sentencedhiin as narratedabove Feelingdissatisflcd wilh the above said judgmentof Z conviction the lanl2aghuNath Bansal had preferred the r 1n stant appea I 08 I have heard learned counsel for thc appcllantand the learned Statecounsel and havegonethrough thc recordsof thc casc m2 Learned counsel for the appeI Iant has submitted that charge Z Ll frained againstthe appellantis that hc deinanded and accepted a sum of Rs2001 as illegal from Malkiat Singhas a inotive for reward for changing and releasing electric connectionin the nalnc ofMalkiat Singh from the namc of his fatherJoginderSinghand therebycotnmittedoffence under Sections 7 and 1321of the Act However froin the perusal of documentsExA the vcry basis ofthe lt 1S revealed that the requestwas made by JoginderSinghthroughMalkiat Singhfor changing of mcter and thereIS 110 rcquest madein that application for changing the meter from the naillc of JoginderSinghIn Ole name of Malkiat Malkiat Singh and all othei material witnesses producedby lhe have also stated that 1V4 SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 41 1CriminalAppealNo731B of2003 6 alnount of Rs001 was Itl respect of changcof thc dcad lncterand not for changing the name So thc appcllant has been prejudicedby wrongly framing thecharge It is furthersublnittedthat Karnail Singhis the materialwitness m C for the as accordir to the casc of thc he wasa 0 shadowwitness The deInandand acccptanccof illegal could C3 I havebeen corroboratedby the said alleged witness but he has 0 not been examined The is an accolnpl ish and his testilnony withoutany corroboration in respeclof dcnland and acceplanccof illegal Z cantlot be More so whcn Malkiat Singh lr 1S iniinical towards the appellant as wcll as othcr PS13B ofcials I Volulninouscvidcncc has becn produccd on thc 0 Ic to prove thc fact that 08 Malkiat SinghIS a notoriousperson From the perusalof Ex 111S 3 revealedthat at the instanceof appellantpcnaltyof Rs 1641 was imposed Z bythc appcllant17romlhe jocrusal of thc doculncnt lxOC to llxlOR tl IS Ll revealed that Malklat Slnghhas inadc varlOUS coinplainlsagainstPSEI3 ofliclals Manyofthesc complaiils arc muchpriorto the ofthe instant case Anothcr FIR under Sections 7 and 1321of tlle Act was rcgistcrcd at thc IllSlance of agalllSlone SDO Jasbir Singh which is clear lioln FlR ExSdatcd 36 1997 hc said lil2 1Ias foulld 10 be falsc and cancellation reportwas submittedSo it is contcndcd thal in thesecircuinstinces the lcarncd trial Courl has 1101picjoelly cvidcncc on rccord in thcright It is further subnlittcd that hand2washand wallct wash have becnfoistcd at lhc instance SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 42 Criininal AppcalNo1 73 1I3 of2003 7 The Honble Apex Courl ln CMGirish Babu vs CB Cochin Hi2h Court of Kcrala 200921Rcccnt Criminal Rcports 134 has held that mere recovery of currency notesis not sufflcient to convict the accusedundeorSections 7 and 13621of the Act he has to r provethc factuln of demandand acceptanceof lllcgal 13en 0 lhe offlcer in the crossxainination has admittcd lllc lct lllat C I MalkiatSingh is not holding a goodrcputation So the Icarned C5 trial Court should not have acccptcdhis testilnonyregarding demand and I acceptancc morc so when shadolvwitncss has not CVCll produccdby the Z No doubl the shadow witncsshas dicd but the benefit of the saine cannot be givento thc I3ut thc sanlc is to be givento the I 08 Thc Icarncd counsel for thc appellant has relicd upon e authoritiesas under Z 619llariKishan vs Statcofllaryana 1997121RCR Qw Criminall 330 21 Amrik Sinoh vsSlateofPuniab 200541RCR 4CriminaO310 131Gurcharan Sinoh vs State ofHarvana 1993f31 RCR Criminall450 441State bv lnspector Viancc and Anti Corruptkn De VSe 1MRavi 2002141RCR Criminall 679 51 Lakhbir Singhvs The Stale of Puniab 1982CCCascs 2130IC SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 43 4 Criminal AppealNo1731B of2003 8 1 66 Jaeiit Singhvse The State of Puniab 1980 CLR93 679Kuldip Rai vs State of Puniab 2002131All India CriminalLaw Reportcr297 81 Man Sineh vs Dclhi Administration ATR 1979Suprem C0urt1455 0 C3 9 Ram Narain Yadav vs Statc of UP1990 CrlJ 973 I 6109Jogindcr Kumar Sood vs The State of Puniab 1989411 C5 I All lndia Criminal Law Rcportcr 485 and Z 11 Ram Kishan Juneia vs State ofHarvana 199311All 2 lndia Criminal Law Rcportcr 65 r The learned Statecounsel has supportcd thc Judgmcnt of trial I 08 Court It is submitted thal Karnail Singhshadow witncss could not be exaininedas he had died priorto his exainination in thc Court The hand 7 Z wash and wallet washprovedthc fact that appellant hasaccepted the illegal Om for changingthe metcr Merc fact that Iil the chargeit 1S mentionedthal illegal 1S in respectof changeof nalne from JoginderSinghfather of to the name of Malkiat Singhdoes not prejudice the accused in any manner JagdishSinghofficial witness 6PW81and DSP Harbans Singh013W1Ol havc tllc casc ofthe prosecution on all material parlicularsThe ExDC to ExOR producedby the accused does not create dent in the stoly Someoflhose docuincntsare aftcr thc ofthe casc These documenlsrather showsthat appellant has bccn lrouods 4 PSEB authorities Praycrhas bccn madc for disinissal of the 6 4 SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 44 W CriminalAppealNo73 ISB of2003 9 1 appeal I have given my consideration to the rival contentions madebyboth the sidesandhavegon6through the recordsofthe case To prove the ingredient of offence under Sections 7 and 13 29 1 oftheAct the is reqoired to provethe following 0il demandof illegal bythepublicservant 0 0 ioi acceptanceof illegal bythepublicservant C 6iiirecovery of illegal I 1 Demandand acceptance of illegal be proved can Z bythe as well as obyexalnining the Shadow witness ln this r case the has the case of thc but the c6 shadowwitnesshas not beenexamionedb7 the as he died prior to his examinatn Had Karnail Singhbeen examined whether he could W2 Z beconsideredas an witness2 The answer to thatquestion 1Slll Ll MalkiatSinghin hiscrossmexaminationalthough has dcnied that 61 is his friend but he has admittedthat he deposed in favour of 6 Karnail Singh crilninalcase institutedbyhn Karnail Singhbelonged 1n a to the same villageas that of Malkiat Singh A person in favour of anotherpersonin case he hasa tliick with hiln However the fact remainsthat Karnail Singhhas not been examined a7 The benefitof the same cannot be givento the but has to be givento the accused In case Karnail Singhhad remained alive and had beenexaminedbythe in that case thc accused would have got an to crossexamine hiln The bribe giveris an accomplish and SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 45 CriminalAppeal No17318 of2003 10 t 4n histestimony norinallyshouldbe acceptcd ifthc salne is corroboratedbyan witness In the presentcase KarnailSinghaccording to the prosecutionwas an witnessbut could not be examined on account ofhisdeath Sothe factthat Karnall Slnghcannotbe said to be an 1 witness ln vlew of thc candid admission by the that he as a witness ln favourofKamail Singhin a criininal case 0 I Now reverting to thetcstlinony of Karnail Singh The Iearned C trial Court has not taken into account his past nduct against PSE13 I The occurrence relatesto the year 1994 bul lnuch priorto that Z Malklat has madevarious againstthe PSEB omcials From thcperusalof xOGIettcr Nc11096 dated 2081992 I Assi stant Executive Engineer has addresscd thc said Iettcr to Executive a5 in which it is mentionedthat Malkiat Singhhas made valious 7 againstthe PSEB authoritieswhich wcre found to be false and Z that had been filcd he PSEI3 authoritlcs vidc letter No 182 Qm dated171 1992addressedletter to Kala Singhalias Malkiat Singhson of Singhwho is that he is urlthorizedlybreaking the wires From thcperusalof ExlOJ it is revealedthat on 151983 varioLiS inhabitantsof the villagetnadecoinplaintagainstthe that he has changed Wlres and fuse of the transformerand made supplyto his house bydoingthat All these is priorto the raid in ExDK is the letter No028 dated 27ll996 for rcgistering a case againstsome who has stolcn wircs of 11cv Vide Ictler ExDL No082 dated91 2 1996Malkiat Singh stated10 be theperson who has brokcn the wires of I l kva line Icttcr No2128 dated SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 46 CriminalAppealNo 731 SB of 2003 l l 4 16 12 1996 ExDM is regardingthe same occurrence Penaltyof Rs 24391 was upon the vide IetterExDN which has been byhim on 811 997 and his admission breaking the 11 kva line ExDO ExOP ExDQ and DR are the letters in this 1 r context ExDX dated 36 1997 is the FIR under Sections 7 and 0 1329 of the Act lTl which it has bcen stated lhat Rs001las been 0 I demandedbyJasbir SinghSDO Electricity Board fioln thc of 9 I thepresentcase Malkiat Singh That casehas been statcdto be sent as ur traced Froin the perusalofentryExl9A dated381994 1e on much prior Z to the raid In qLlcstionpenalty was on lhc doillestic meter whch deposited byMalkiatSingh So Singhhas his own I axe to grindagainstthe PSEB 1n vlew oofpast rccordingof making a5 againsteach other that is much priorto the raid in qucstion In mw the could makc false alIcgationagainstanother SDO case Z JasblrSinghin that case the of inakingfalse allegations against the appel Iantcannotbe rulcd out and as such the learned trial Court shouldhave givenbenellt of doubt 10 the appellant in thc abscnce of any corroboration10 1hestateinent ofcoinplainanl The Honble ApexCourt in authorityCMGirish Babus casc supral held as under l Prcvcntion of Corruption Act 1988 Sections 7 and 1 and 13621 casc of taintcd money from accuscdwhethera proofofcharge 6NoILaw summedup 61J Mere recovery of tainted money divorced from the circuinstances underwhich it is paidis not sufficicnt to colvict SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 47 V CriminalAppealNol 731B of2003 12 hm 1 thc accused 2J lt is not enough that sonlccurrency notes wcre handcd over to the publicservant to makeit acccptance of and has a further dutyto prove tllat what was paid 1r ainountedto graliflcation 99 0 The accused was acquittcdby lhc l Ionblc Apcx Courl ill lhat 0 I case The testimony of JagdishSingh6Pla99 and IOSPHarbans Singh 0 RetdI as 6PW O coupledwith handwash and 7allctwash onlyprove the of lhe lainted currency notes fronl thc accused but in view of Z CMGirish Babus casc Isupralmcrerccovery is not sufflcientto convict r theaccused under Scctions7 and 13 ofthe Act In Hari Kishanas casc Isupral where lhe dcinand 08 acceptancewas not provedby evidcnce tlle accused Was 7Z ln authorityAmrik Sinehs case su pral where the shadow WitnCSS and colnplainailt were relatedto each other and that facl has becn bythe in that case it was held that seriousdoubt hasbeencausedas to thc veracityofthe prosccution case In ICMJavis case 6supralit has bcen held that it is sufficientifthc accusedis abIcto probablize his casc and he is not cxpected to provehis defencestrictly In authority Lakh bir Sinehs case supral wheretherewas no and witness lo corroboratc the deinand and and shadow witness was found to be of shabbyanleccdents the was orderedto bc acquitted SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 48 e CriminalAppealNo73 1SB of2003 13 r ln authorityJagiit Singh s casc suIlra the accused was wheretherewas no corroborationofdcinand ofbribc In Kuldip Rai s casc supr thc Punjaband HighCourt hasheld that merc recovery of taintcdcurrency notes is 1 not sufflcient unlcss thc deinandis corroboratcdby evidence 0 In Joeinder Kumar Soods case supral it has been 0 held that whcrc lhe hostiIe witncss was found lo be C5 COtlVlCtlOncanllOl bc rccorded for offence under Sections56l li1 and 5 ofthePCct and undcr Section161of lPC Z In authority Ram Kishan Juncias casc Supral it has been C held that motive for paymentand acceptanccIS a rclevantand matcrial fact I for consideration a5 In the pres case thechargcfranled againstthe appcllant 1S m that he demanded and illegal for changingand Z clcctriciyconnection in thc nainc ofIalkiat Siilgll0cl111tllc naille Om ofhis father Singh IIowcver thc cvidcncc lcd bythe cloesnot supportthe said fact but was in respectof changeof the dead meter only ExA isthe basisofthe which JoginderSingh Malkiat Singhhadinade a requestlhai inelcr al thcir prcmiscs to be as it was lyingdead No requesthas beeninadc in this application that meter be changed ln the narne of Malkiat Singhfroln le original consumcr Singhhis fathcr No doubt thc chargc can bc anlended at any stagc but in view of thc above circumstancesdiscusscdabove it would not be inconsonanceof justiceto ainend the chargeaftcr pcriodof fifteenyears and in view ofthe evidcncc bylhc SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document 49 CriminalAppealNol731I3 of2003 14 1 In vicw of the above discussion the appeal standsallowed and the judginent of the arned trial Court standsset asidc and the accused stands bygivinghim benel ofdoubt A copy of this judgment bc sent to the trial Courl for strict 1 December11 2009 PURl 0 JUIOG13 SV 0 1 C5 I 1 1 9 V y I c V W2 Z CL i9 4 4 1 nJ 0 SURESH KUMAR 2014.11.27 10: 06 Scanned True Copy of Original PHHC,Chandigarh JOYTI RANI 2016.03.28 16:19 I attest to the accuracy and integrity of this document