CRM No. 161-MA of 2009 1 In the High Court of Punjab and Haryana at Chandigarh CRM No. 161-MA of 2009 Date of decision: 8.5.2009 State of Punjab ....... Appellant Versus Chunni Lal .......Respondent CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.Amandeep Singh Rai, AAG, Punjab. **** SABINE, j. The respondent was tried for an offence under Section 13 (2) read with Section 7 of the Prevention of Corruption Act, 1988 (for short 'the Act'). However, vide impugned judgment dated 5.12.2008, learned Special Judge acquitted the respondent of the charge framed against him. The applicant-State of Punjab has filed this application under Section 378 (3) of Cr.P.C. with a prayer for grant of leave to file an appeal against the order mentioned above. The case of the prosecution, as noticed by the trial Court in para No.2 of its judgment, reads thus:- “Brief facts of the case are that on 19-12-2006 Harjinder Singh complainant went to DSP Sukhdev Singh Vigilance Bureau, Bathinda, and made a statement that he was CRM No. 161-MA of 2009 2 residing in village Hari Nau, District Faridkot, where he was running a school namely Guru Hargobing Primary School, Hari Nau. He had to send examination fee of 12 children of 5th standard and an affidavit was to be got attested from Naib Tehsildar, Kotkapura, regarding date of birth and caste of the students. On 18-12-2006 after getting the affidavit prepared he met the accused, who was working as Clerk in the office of Naib Tehsildar, Kotkapura,, who demanded Rs.500/- for getting the affidavit attested as illegal gratification and ultimately deal was struck for Rs.300/- and accused after getting the affidavit attested kept the same with him. Since he did not want to pay the illegal gratification he told the accused that he would come on 19-12-2006 in the evening to make the payment and told Jaswinder Singh the whole story who was working as a teacher in his school. He also supported him in not giving the illegal gratification. Consequently, he alongwith PW Jaswinder Singh went to DSP Sukhdev Singh who recorded his statement Ex. PG. An endorsement Ex.PG/1 was made by the DSP upon Ex.PG and formal FIR Ex.PG/2 was registered on its basis by Inspector Ashwani Kumar, Police Station Vigilance Bureau, Bathinda. Official witnesses Dr. Inderdeep Singh, BTO. and Prem Kumar, Pharmacist CRM No. 161-MA of 2009 3 were summoned and introduced to the complainant and the shadow witness Jaswinder Singh. Harjinder Singh narrated the whole story in their presence. He also produced three currency notes each of Rs. 100/- and their numbers were noted down. Phenolphthalein powder was applied to the notes and these notes were handed over to the complainant and all the members of the party were directed to wash their hands, who actually washed their hands. A demonstration was also held in their presence by preparing a solution of sodium carbonate in a tumbler and phenolphthalein powder was added to it and its colour changed to light pink. The complainant was also told not to touch the currency notes as phenolphthalein powder would stick to his hands. The solution was thrown away. Memo Ex.PA was prepared which was signed by the complainant, shadow witness and the official witnesses. Then the police party consisting of DSP Sukhdev Singh, complainant, shadow witness, both the official witnesses went to Kotkapura in a Govt. vehicle and stopped near the petrol pump near Tehsil complex. Complainant was directed not to shake hands with the accused and the currency notes should be paid on demand to the accused. Shadow witness was directed to hear the conversation of the complainant with the CRM No. 161-MA of 2009 4 accused, to witness the occurrence and after the money is received by the accused to give a signal to the police party. After sending them to the Tehsil complex the other members of the party occupied their positions. After sometime signal was received from the shadow witness and whole of the party conducted a raid upon the accused who was seen sitting on a motor cycle outside the gate of his office. DSP disclosed his identity to him and told that a vigilance raid was conducted upon him and directed him not to move. A tumbler of plain water was requisitioned. Sodium carbonate was added to it. Official witnesses were made to dip their hands in the said water and its colour did not change. Then the accused was made to dip his right hand in the solution and its colour changed to light pink as it contained sodium carbonate. The solution was transferred to a nip Ex.P2 which was sealed by the DSP with his seal having initials ‘SS’ and it was taken into possession vide memo Ex.PB which was attested by the abovesaid witness. Accused produced the tainted money from the dickey of the motor cycle and after tallying their numbers with the numbers of the currency notes which were noted earlier in Ex.PA, these were taken into possession vide memo Ex.PC. Personal search memo Ex.PD was prepared. Affidavit CRM No. 161-MA of 2009 5 Ex.P1 which was received by the complainant from the accused was produced before the police and it was taken into possession vide memo Ex.PF. Motor cycle was taken into possession vide memo Ex.PR. Rough site plan Ex.PN was prepared. Statements of the witnesses were recorded. House of the accused was searched but nothing incriminating was recovered. On coming back to Police Station Vigilance Bureau Bathinda, case property was deposited with MHC Sukhdev Singh. After receiving report Ex.PP of Assistant Director (Chemistry), Forensic Science Laboratory, Punjab, Chandigarh, and after obtaining sanction Ex.P1 the accused was challaned. Learned State counsel has submitted that the prosecution had been successful in proving its case. Complainant as well as the other material witnesses had duly supported the prosecution case. Learned Special Judge in para Nos. 18 to 21 of its judgment has observed as under:- “18. As per prosecution evidence it appears that at no stage the alleged affidavit of the complainant did not remain with the accused and it was directly presented before the Naib Tehsildar for attestation and as such the accused was not in a position to perform any official act of which the aggrieved party would have received some benefit. The accused was also not in a position to do any CRM No. 161-MA of 2009 6 favour to the complainant and as such it can be said that there was any occasion for the complainant to pay the alleged illegal gratification to the accused. In that regard prosecution itself has produced PW10 Kuldip Singh, Naib Tehsildar, who had attested the affidavit as Executive Magistrate on 18.12.2006 and deposed that complainant produced affidavit Ex.P1 before him for attestation and at that time he was accompanied by Darshan Singh Municipal Councillor, Kotkapura, who identified him (deponent) and that he attested the affidavit and handed over the same to the complainant/deponent. If that was so then how the affidavit reached the accused and how he was concerned with getting the affidavit attested from the Naib Tehsildar/Executive Magistrate and on this score alone case of the prosecution has fallen like a castle of cards. Even DW1 Atma Singh, Tehsildar, deposed that an enquiry was conducted by him in this case and found that the case was false. DW2 Darshan Singh Municipal Councillor, Kotkapura, also supported the statement of Sh.Kuldip Singh, Naib Tehsildar, Kotkapura and their statements cannot be brushed aside on any ground whatsoever. 19.PW3 Jaswinder Singh, the alleged shadow witness, cannot be termed as independent witness by any CRM No. 161-MA of 2009 7 stretch of imagination as he was an employee of complainant Harjinder Singh (PW2) and in that regard PW3 in his examination-in-chief stated that he and his Principal had gone to Kotkapura Sub Tehsil complex in order to get an affidavit attested. Even PW2 admitted in his cross-examination that Jaswinder Singh was employed with him. 20. Ex.DA and Ex.DB statements of the complainant under Section 164 of the Cr.P.C. and by Tehsildar during an enquiry were recorded respectively. PW2 Harjinder Singh complainant in Ex.DA did not state that he had to get his affidavit attested and that the accused demanded Rs.500/- from him for getting his affidavit attested. The witness also did not state in Ex.DA that the DSP sprinkled some powder on the currency notes which were produced by him before him (DSP). He also did not disclose this fact in Ex.DB. He also did not disclose the names of official witnesses in Ex.DA as well as in Ex.DD. In Ex.DE he did not state that the DSP held demonstration by getting their hands washed in some solution and that he was instructed not to touch the currency notes. This witness did not state in Ex.DA an Ex.DB that the accused had handed over the affidavit to him after taking it out from the dickey of CRM No. 161-MA of 2009 8 the motor cycle and had put the tainted money in the said dickey. He also did not state in his above statements that the affidavit was taken into possession by the police and that hands of the accused were got washed in a tumbler of water. 21.Similarly, PW3 Jaswinder Singh in his statement Ex.DC made before the Tehsildar during and enquiry that Rs.300/- were taken from his Principal by the DSP; that a powder was applied to those notes; that Dr.Inderdeep (PW1) had demonstrated by dipping his hand in the water, that after applying powder colour of the water changed to light yellow; that the police handed over those notes to the complainant; that the complainant went inside the office but the accused met them outside the office standing near a motor cycle; that he demanded money and that the money was handed over to him by the complainant which was put by him in the dickey of the motor cycle; that they gave signal to the waiting party, who arrived at the spot, apprehended the accused and recovered the tainted money etc. This witness could not say if Naib Tehsildar was present in his office when they went to the accused on 18-12-2006 with the affidavit and that Darshan Singh, Municipal Councillor was with them or not.” CRM No. 161-MA of 2009 9 The prosecution case is that the respondent had demanded bribe money for getting the affidavit of the complainant attested from the Naib Tehsildar. Raid in the present case was organised on 19.12.2006. However, from the statement of Kuldip Singh, Naib Tehsildar (PW-10), it is evident that affidavit of the complainant was presented for attestation by the respondent on 18.12.2006 and was attested on the said date. In these circumstances, there was no occasion for the respondent to demand or accept bribe on 19.12.2006 for getting the affidavit of the complainant attested as the same had already been presented for attestation on 18.12.2006. The possibility that the respondent has been falsely involved in this case cannot be ruled out. It is a case where, in view of evidence on record, it can safely be said that the prosecution has failed to prove guilt of the accused. Thus, learned Special Judge has rightly acquitted the respondent of the charge framed against him. Their Lordships of the Supreme Court in Allarakha K.Mansuri v. State of Gujarat, 2002 (1) RCR (Criminal) 748, held that where, in a case, two views are possible, the one which favours the accused, has to be adopted by the Court. A Division Bench of this Court in State of Punjab v. Hansa Singh 2001 (1) RCR (Criminal) 775, while dealing with an CRM No. 161-MA of 2009 10 appeal against acquittal, has opined as under:- “We are of the opinion that the matter would have to be examined in the light of the observations of the Hon'ble Supreme Court in Ashok Kumar v. State of Rajasthan, 1991 (1) SCC 166, which are that interference in an appeal against acquittal would be called for only if the judgment under appeal were perverse or based on a mis- reading of the evidence and merely because the appellate Court was inclined to take a different view, could not be a reason calling for interference.” State counsel has failed to show any mis-reading of evidence on record. No ground is made out to grant leave to file an appeal. Accordingly, this application is dismissed. (SABINA) JUDGE May 08, 2009 anita