Crl.Rev.No.749 of 2007 (O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Crl.Rev.No.749 of 2007 (O&M) Date of decision: 28.4.2009 Ashok Kumar ......Petitioner Versus State of Haryana and another .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Rajnish Gupta, Advocate, for the petitioner. Mr.Sidarth Sarup, AAG, Haryana. **** SABINA, J. Ved Parkash-respondent No. 2 was tried for an offence under Sections 7 and 13 (1) (d) read with Section 13(2) of the Prevention of Corruption Act, 1988 in FIR No.16 dated 20.5.2002 registered at Police Station, SVB, Ambala. Vide judgment dated 17.4.2006 passed by the Special Judge, Kaithal, respondent No.2 was acquitted of the charge framed against him. Aggrieved by the same, petitioner-complainant has filed the present revision petition. The case of the prosecution, as noticed by the Special Judge, Kaithal in para No.1 of his judgment, is reproduced herein below:- “Briefly stated, the facts of the prosecution case are that Crl.Rev.No.749 of 2007 (O&M) 2 on 20.5.2002, complainant Ashok Kumar gave an application in State Vigilance Bureau (SVB) Unit Kurukshetra to the effect that an electric meter was installed in the house of his brother Ravinder Kumar and on 19.5.2002, Ved Parkash Junior Engineer, UHBVN Pundri came to the house of his brother and told him that the seals of the said meter were tampered and thereafter, he took away the meters. Thereafter, at the instance of his brother Ravinder Kumar, he talked to the J.E. Concerned and the said J.E. demanded a sum of Rs.5,000/- as bribe, failing which, the matter was going to be recorded against his brother and asked him to bring the said bribe money of Rs.5,000/- on 20.5.2002 and promised to install the said meter. The complainant has reported that he was not willing to give the said bribe money and as such, he has prayed for taking action against the J.E. concerned. On the basis of said complaint, a case under Section 7 of the Prevention of Corruption Act, 1988 (hereinafter referred to as Act) was got registered by sending rukka through constable Sanjay Kumar to S.V.B. Ambala and Inspector Vigilance Sh.Gurdawaya Ram along with the complainant and other police officials reached the office of Deputy Commissioner Kaithal and in Crl.Rev.No.749 of 2007 (O&M) 3 view of the order of Deputy Commissioner Kaithal, Sh.Sanjay Rai, District Renenue Officer (DRO) Kaithal was joined in the raiding party. The complainant Ashok Kumar produced currency notes of Rs.5,000/- 3 of which of the denomination of Rs. 1,000/- each bearing nos. OAC-726057, JAB-988028, JAB-988027 and four currency notes of the denomination Rs.500/- each bearing nos. JDT-746642, 8BB-391259 and 7AD- 2919376, 7AR-962464 to Sh. Sanjay Rai DRO and Sh. Sanjay Rai DRO affixed his initials and handed over the same to the investigating officer. The investigating officer applied phenol phathalein powder upon the said currency notes and handed over the same to the complainant Ashok Kumar after preparing “Hawalgi” meo with a direction to give the said currency notes to J.E. on his demand and Raj Kumar ASI was appointed as shadow witness and Raj Kumar shadow witness was directed to give the appointed signal to the waiting raiding party and thereafter, the raiding party reached the house of the accused and the complainant and shadow witness were sent inside and after the receipt of appointed signal from the complainant Ashok Kumar, the police raiding party apprehended accused Ved Parkash J.E. and when the search on his Crl.Rev.No.749 of 2007 (O&M) 4 body was conducted, then from the right pocket of his pant, the said currency notes were recovered and when the said currency notes were washed in the solution of sodium corbonate, then the said solution turned pinkish. The said currency notes wash was sealed in a nip. Thereafter, the hand wash of the accused Ved Parkash J.E. was taken. The said wash also turned pinkish and same was also put in a separate nip. Thereafter, the pocket wash of the pant of the accused was also taken, which also turned pinkish and same was also converted into separate parcel. The said currency notes were also converted into parcel and all the parcels were sealed with seal bearing impression RSM and the pant was also taken into police custody. The police also took into custody the electric meters, which was produced by JE from his house and the statements of the witnesses were recorded. Accused Ved Parkash JE was arrested formally as per law and after completion of necessary investigation, final report under Section 173 Cr.P.C. was prepared and forwarded to the Court for trial of the accused.” Learned counsel for the petitioner has submitted that a raid was organised after a complaint was lodged by the petitioner Crl.Rev.No.749 of 2007 (O&M) 5 with regard to demand of Rs.5,000/- as bribe by respondent No.2 from the petitioner. Respondent No.2 was caught red handed while accepting bribe money. The bribe money was recovered from the right pocket of pant of respondent No.2. When the hands of respondent No.2 were washed in a solution of sodium carbonate, the colour of the solution turned pink. Learned counsel for respondent No.2, on the other hand, has submitted that respondent No.2 had been falsely involved in this case because he had detected four theft cases committed in the premises of Purshotam Dass, father of the petitioner. Inspector Gurdawaya Ram was in the habit of foisting false cases on the public servants. After close of prosecution evidence, respondent No.2, when examined under Section 313 Cr.P.C., as reproduced in para 7 of the impugned judgment, stated as under:- In his statement recorded under Section 313 Cr.P.C., the accused has denied all the allegations levelled against him and pleaded false implication. The accused has pleaded that he has been falsely implicated by the police in connivance with the complainant party as on 22.6.2001, he along with Nihal Chand lineman went to the tubewell of Purshotam Dass, father of the complainant and detected over load and a penalty of Rs.10,000/- was imposed. He has pleaded that on 24.10.2001, he along Crl.Rev.No.749 of 2007 (O&M) 6 with Zile Singh lineman and Rulia Ram ALM inspected the house of Sunita Devi, real sister of the complainant and found committing theft of electricity and checking report was prepared by the raiding party and fine was imposed, which was deposited by said Sunita Devi. He has pleaded that on 6.5.2002, he along with Nihal Chand lineman inspected the meter of Tikka Ram, real brother of the complainant and prepared the report that the meter was sticky and an amount of Rs.7082/- was imposed as penalty and due to said grudge, the complainant in connivance with the police implicated him falsely. He has also pleaded that on 19.5.2002, he along with Pritam Singh lineman and Kashmiri Lal foreman inspected the premises of Ravinder Kumar, brother of the complainant and the said meter was in the name of Tikka Ram, real brother of the complainant and they found both the seals as tampered and they took out the meter from the said premises and put the same in the shop of Bablu son of Hukam Chand, Fridge mechanic near complaint centre and has stated that on 19.5.2002, it was Sunday and the meter was not deposited in the department, but on 20.5.2002, he was taken to the Police Station Pundri where this false case was registered against him in connivance with the complainant party on account of previous enmity and the meter was taken by the police Crl.Rev.No.749 of 2007 (O&M) 7 from the shop of Bablu.” Learned Special Judge, Kaithal, after appreciating the evidence on record observed that Inspector Gurduawaya Ram (PW- 12), who had investigated the case, had tried to thrust the alleged bribe money on another Junior Engineer just after 2-3 days of the registration of the present case. The failure of the said raid on R.D.Kaushik, Junior Engineer, had been admitted by Gurduawaya Ram (PW-12) in his cross-examination and from the news items of different dates appearing in the news paper, it emerged that SDO (Civil) was appointed as Enquiry Officer to conduct the enquiry regarding thrusting of bribe money in the pocket of R.D.Kaushik, Junior Engineer. In these circumstances, the learned Special Judge, Kaithal held that the statement of PW-12 Inspector Gurduawaya Ram could not be relied upon. Learned Special Judge, Kaithal further observed that respondent No.2 had detected theft of energy on 22.6.2001 vide Ex.D1 in the premises of Purshotam Dass, father of the petitioner. Respondent No.2 had also detected theft of electricity on 6.5.2001 vide Ex.D2 in the premises of Tikka Ram, brother of the petitioner. Another theft of electricity was detected by respondent No.2 on 24.10.2001 vide Ex.D3 in the premises of Sunita Devi, sister of the petitioner. Thereafter, theft of electricity was also detected on 19.5.2002 vide Ex.D4 in the premises of Tikka Ram, brother of the petitioner, in which Ravinder Kumar, another brother of the petitioner, Crl.Rev.No.749 of 2007 (O&M) 8 was residing. Nihal Chand (DW-1), Zile Singh (DW-2), Pritam Singh lineman (DW-3) and Bablu (DW-4) had duly corroborated the defence version regarding detection of theft of electricity energy/tampering of meter, seals either by the father, brother or sister of the petitioner/complainant. Prosecution had relied upon receipt Ex.PE, vide which Ravinder Kumar, brother of the petitioner, had deposited the charges and the same was taken in custody by the police vide memo Ex.PK but the same seemed to be fabricated document as date of the said receipt had been tampered with. In these circumstances, the reasons given by the learned Special Judge, Kaithal are sound reasons. It has been held by the Apex Court in C.M.Girish Babu vs. CBI (2009) 3 Supreme Court Cases 779 as under:- 18.In Suraj Mal v. State (Delhi Admn.) this Court took the view that (at circumstances under which it is paid is not sufficient to convict the accused when the substantive evidence in the case is not reliable. The mere recovery by itself cannot prove the charge of the prosecution against the accused, in the absence of any evidence to prove payment of bribe or to show that the accused voluntarily accepted the money knowing it to be bribe. 21. It is well settled that the presumption to be drawn under Section 20 is not an inviolable one. The accused Crl.Rev.No.749 of 2007 (O&M) 9 charged with the offence could rebut it either through the cross-examination of the witnesses cited against him or by adducing reliable evidence. If the accused fails to disprove the presumption the same would stick and then it can be held by the court that the prosecution has proved that the accused received the amount towards gratification. 22. It is equally well settled that the burden of proof placed upon the accused person against whom the presumption is made under Section 20 of the Act is not akin to that of burden placed on the prosecution to prove the case beyond a reasonable doubt.” Although in the present case the raid was conducted and the pant pocket wash and hand wash showed that the colour of solution of sodium carbonate had turned pink, yet the other circumstances on record relied upon by the learned Special Judge, Kaithal make the prosecution story doubtful. It has been held by the Apex Court in Satyajit Banerjee vs. State of West Bengal (ST), 2004 (10) JT 27 that direction for de novo trial could be given in extraordinary case where Court was convinced that entire trial was farce. Revisional jurisdiction against the order of acquittal at the instance of the complainant, has to be exercised by the High Court only in very exceptional cases where the High Court finds defect of procedure or manifest error of law Crl.Rev.No.749 of 2007 (O&M) 10 resulting in flagrant miscarriage of justice. The present case does not warrant retrial. As per Section 401 (3) of the Code of Criminal Procedure, in revision, a finding of acquittal cannot be converted into a finding of conviction by this Court. Accordingly, this revision petition is without any merit and is dismissed. Hence, the application seeking condonation of delay in filing the revision petition is merely academic and is disposed of as such. (SABINA) JUDGE April 28, 2009 anita